C. Revolutionary genesis of the Constitution?

As stated in the last paragraph of the Preamble, “Bosniaks, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina hereby determine . . . the Constitution of Bosnia and Herzegovina”. The participation of the constituent peoples as constitution makers as stated in this sentence is more of a “fiction”, with the aim of legitimising the Constitution, than reality: Bosnia and Herzegovina, as a “symbolic structure” of the international community,³⁰ lacks (for the time being at least) the emotional support of the population.³¹ For, the BiH Constitution, as per Annex 4 of the General Framework Agreement, is a constitutional act which “through amendments substitutes and renders ineffective” the Republic of BiH Constitution³² and which entered into force when the General Framework Agreement was signed. The text of the BiH Constitution largely came into being during various peace negotiations in Bosnia and Herzegovina,³³ and its final version is the result of the closed-door negotiations held at the American Dayton, Ohio Airbase.

The first peace plan, entitled Treaty Provisions for the Convention, which came into being at the EC Peace Conference on Yugoslavia (often referred to as the Carrington or the Brussels or the Hague Conference), took as a starting point the preservation of the Federal Republic of Yugoslavia, and it failed because Milošević refused to accept it.³⁴ The Arbitration Commission, which came into being at the mentioned conference, and which is also referred to as the Badinter Commission after the name of its first president, offered a number of positions that might serve as guidelines for the policy of the EC and its member states. Among other things, the Commission had recognised significant minority rights, human rights and fundamental freedoms of the Bosnian Serbs, which the republics have to provide for members of minorities and ethnic groups, “including, if appropriate, the right to choose nationality”, which, however, does not imply the right to secession from the future state, in particular because violent changes of borders were declared legally null and void. Moreover, the Commission took the position that the borders of the former Yugoslav republics following the break-up of the federation should be treated as international borders. In case Bosnia and Herzegovina declared independence – which at the time was still uncertain – the State would be recognised.³⁵ When it seemed that the break-up of Yugoslavia could no longer be halted, the Carrington Conference focused on having the process flow as orderly as possible, and on preventing the break-up of Bosnia and Herzegovina. For this purpose, in March 1992, constitutional principles were proposed for Bosnia and Herzegovina (the so-called Cutileiro Plan). Partition of the country under that plan to regions that would be in essence autonomous and to a great extent ethnically defined, yet territorially undetermined, was quickly rejected. As a new attempt to bring it under control, in August 1992 the London International Conference on the Former Yugoslavia was convened, whereby resolve to preserve the integrity of Bosnia and Herzegovina within the then borders was expressed. At the International Conference on the Former Yugoslavia (ICFY or the Vance-Owen Negotiations or Geneva Conference), set up at the London Conference, there were discussions about various constitutional models, from establishing a centralised State to partitioning the country. Thereafter the UN Security Council, and the ICFY Steering Committee, as well as the warring sides, proposed a federal system model (precursor of the Vance-Owen Plan); however, again, this one lacked information on the accurate number of federal units or on their partition to the three sides, which was the reason why the sides stated they were unable to discuss the proposal. From January 1993 the sides negotiated the so-called Vance-Owen Plan: it involved a package of proposals which consisted of constitutional principles, partition of the country to ten provinces/regions (three for each people plus a multi-ethnic Sarajevo), agreement on cessation of war operations and withdrawal of military forces, and a plan for transition from a state of war to a new constitutional framework. While Croats went on to approve this plan right away, in which they saw territorial privileges, and Bosniaks approved it reluctantly, the Bosnian Serbs conditioned the approval of the plan with its ratification in Parliament. The Parliament refused to do so, which was confirmed once more at the referendum held consequently. The Invincible-Plan (named after the British aircraft carrier where negotiations had taken place) from August/September 1993, which, as a matter of fact, revived the Cutileiro principles and another ICFY option which had been rejected earlier, i.e., division of three republics making up a loose-knit union, was rejected by Bosniaks, as that plan allocated them only 30% of the territory. Equally unsuccessful was the attempt of the young EU to apply the Invincible-Plan in November 1993. Only after the strategy was changed in 1994, which was introduced mainly by the United States, and thanks to which Bosniaks and Croats were made to sign the Washington Agreement on 1 March 1994, which brought them to reunification within the Federation of Bosnia and Herzegovina, did the negotiating settlement became more certain. The mentioned agreement brought about an immediate ceasefire between the two sides, and united their forces against the Bosnian Serbs. The implementation of this agreement in practice, i.e., of the very Federation, dragged on until after the signing of the Dayton Agreement.³⁶ The Bosnian Serb army found itself in a situation where it lost significant parts of its territory in battles against the forces of the Federation.³⁷ Moreover, owing to their refusal of the Contact Group Plan, Bosnian Serbs were completely isolated by not only the international factors but also by Belgrade power- holders, who had provided them with substantial financial and logistical assistance before that.³⁸ Because of world-wide disapprovals following the shelling of a Sarajevo market in February and August 1994, and the seizure of the UN safe havens and massacres, committed by the Bosnian Serbs in July 1995, NATO took tougher and more consistent measures against the troops of the Bosnian Serbs.³⁹ Unlike Bosniaks and Croats, who entertained hope that the problem might be solved by military means because the situation at the frontline had changed, Bosnian Serbs were willing to negotiate now.⁴⁰ After another failed attempt, this time under the guidance of the Contact Group and in cooperation with the ICFY, followed by mere interim agreements from Geneva and New York from September 1995,⁴¹ finally negotiations in Dayton, which the US State Department was actually in charge of, brought peace.

Thus, under substantial pressure of the international community, the State,⁴² the warring sides, with Bosnian Serbs being de facto represented by Milošević,⁴³ following three-week marathon negotiations,⁴⁴ finally reached an agreement and initialled the Agreement on 21 November in Dayton. The General Framework Agreement for Peace in Bosnia and Herzegovina was finally signed in Paris on 14 December 1995.⁴⁵ This agreement, often referred to as the Paris or Dayton Agreement, actually constitutes a series of agreements and is comprised of a framework agreement and 12 annexes,⁴⁶ which were partly signed by different, and partly by the same signatories. It is a complex structure which was developed within different peace plans as far back as 1991, and it was converted into a final text in Dayton, mainly, at the working groups of the Contact Group (USA, Russia, Great Britain, France and Germany).⁴⁷ Because of their involvement in the conflict, Croatia and the rest of Yugoslavia had to commit to guaranteeing peace.⁴⁸ The GFAP and its annexes were accompanied by accessory agreements and cover letters of the very signatories and the states witnessing the initialling and signing of the agreement. Such documents support the entire structure, they make it complete, and some of them make the text more comprehensible.⁴⁹

As Annex 4 to the GFAP, the BiH Constitution forms an integral part of the international legal agreement.⁵⁰ Unlike other annexes, the BiH Constitution was not made in the form of an agreement. Instead, representatives of the Republic of BiH, the Federation and the Republika Srpska approved the text of the Constitution in the attached statement. When viewed formally, one could even ascertain that the Republic of BiH, as an internationally recognised state, established the text of the Constitution together with the dissident groups that had de facto control over a part of its territory.⁵¹ However, a more realistic viewpoint is that, in enacting the Constitution, the International Community had substituted the people of Bosnia and Herzegovina, i.e., peoples, as a sovereign constitutional authority.⁵²

This type of genesis is certainly uncommon, not only as a formal act of creation but also because of the real circumstances in which intensive closed-door negotiations were held, which were graphically described in the published texts of the immediate participants.⁵³ Numerous norms, which, in order to be acceptable for all ethnic groups, critically approached the limits of functionality of a state, are easy to recognise right away as being the result of a compromise.⁵⁴ What was sought was the lowest common denominator for opposing interests of the three peoples. While Bosniaks sought preservation of Bosnia and Herzegovina within its pre-war borders as a strong multi-ethnic and centralised state, Croats and Serbs wanted to ensure if not immediate or consequent secession, then at least as broad an autonomy as possible, and thereby as weak as possible State institutions.⁵⁵ Also, they wanted to ensure their own influence on State institutions by way of rights of collective participation to the right to veto.⁵⁶ Some view the (certainly high) price of peace (“ethnocracy”, lack of democracy in enacting the constitution, recognition of ethnic cleansing) as too high and consider that basically it is only justified by the real political interests of Europe, the United States and Russia.⁵⁷ The compromise of contradiction at the core of the BiH Constitution – one state, but two ethnically identified Entities; democracy and ethnocracy; individual rights and collective rights – made the BiH Constitution more of a project for implementation and interpretation with uncertain outcome, than clear guidance.