A Bosnia and Herzegovina with one segment state – the Republika Srpska – has proven to be untenable. Whether a BiH comprised of two or three would be more or less likely to produce a stable future EU member state is worthy of discussion, as poorly thought through “interim” policies made in the past have led to two decades of stagnation.

By Dr. Valery Perry

Croatian member of the European Parliament Davor Ivo Stier’s recent comment on the constitutional structure of BiH is interesting in terms of its timing.[1] His suggestion that BiH should be reformed by introducing a model of federalism that would in effect create a third entity for the Croats is not new. The timing is compelling, however, for two reasons. First, it not unexpectedly demonstrates the impact that Croatia as an EU member state may have on its still unstable neighbor. Second, the recent interview that brought Stier’s views to a wider audience is compelling in light of academic discussions on the long-term impact of autonomy arrangements on political stability.

A Federal Path to a Third Entity?

Stier’s interest in a certain type of federalism reflects the ongoing tensions inherent in the constitutional structure created at Dayton as the war came to an end in late 1995.[2] The peace agreement was signed among the three warring parties and, as a result, needed to offer something to each to get the violence to come to an end. In that sense, it succeeded. However, the ungainly structure left behind as a result of the compromise constitution embedded in Annex 4 of the peace agreement has ensured that the country has never been able to truly stabilize or normalize. If negotiators and diplomats expected that there would quickly be additional talks to seek a more functional constitutional and state framework, this did not happen – talks on constitutional reform only surfaced as a priority in 2005. At best, the country has experienced a cold peace.

BiH already exhibits many characteristics of federalism.[3] However, it is an asymmetric, multinational federal state that lacks any political or institutional incentives for political leaders to ever work together for the country as a whole. What Stier is suggesting is to gerrymander a Croat unit or entity out of bits and pieces of the Federation, likely either through “super cantons” or through some sort of Croat “association of municipalities” (a still untested model also proposed for Kosovo). He does not explain how this might be done; how “mixed” municipalities would ensure basic rights of non-majority citizens; or how the state itself would need to be restructured to accommodate such a loosely sketched vision. He is not the first to seek to tinker with the Federation with the aim of carving out a de facto third entity; others also fail to address such issues. The bulk of the so-called Sejdic-Finci talks have focused not on the rights of “the Others” but on crafting a Croat electoral unit.[4]

Others have proposed eliminating the cantons altogether, leaving the Federation’s 79 municipalities to either unite (likely along ethno-national majority lines, possibly based on the notion of “language communities” to conjure up images of the Swiss system) or fend for themselves in a loose conglomeration of poor, rural, feeble fiefdoms. How a situation in which 51% of the country would be a loosely knitted patchwork would create state-level stability (let alone shared purpose and vision), when the remaining 49% of the country is highly centralized, is unclear. (And, of course, Brcko District remains an outlier.) Milorad Dodik, too, has been quick to use the language of “federalism,” seeking to draw parallels to the pre-war constitution, which noted a right to secession.(5)

Is the lack of territorial and/or communal autonomy in BiH really the problem?

BiH’s Bigger Problem – The Segment State Disease

The January 2014 issue of the journal Ethnopolitics offers some food for thought on this question and may be a rare issue that transcends its academic audience to reach policy wonks interested in how power-sharing theories (such as consociationalism) may be implemented and play out in practice. There is direct relevance to BiH in 2014 – an election year in which talks on the limited Sejdic-Finci elements of constitutional reform may or may not be resolved – and its outlook for the post-election future. While a thorough review and analysis of the arguments presented is beyond the scope of this piece, a few issues deserve brief mention to initiate a debate on the possible consequences of recent political trends in and suggestions for BiH, including Mr. Stier’s contribution.

The topic of the special issue is grounded in the notion of “segment states,” and the potential causal relationship between segment states and the likelihood of state crisis and disintegration. In 2007, in his book, Where Nation-states Come From: Institutional Change in the Age of Nationalism, Philip Roeder explores and challenges the conventional wisdom that autonomy arrangements are a promising method for managing ethnic conflicts within heterogeneous states.[6] As summarized in the Introduction to the Ethnopolitics volume, “Roeder presents the view that provisions for autonomy typically fail to manage tension effectively between rival ethnic communities. Taking the argument further, Roeder contends that autonomy arrangements actually enhance the likelihood that countries will experience interethnic tensions and dissolve along communal lines (emphasis added).”[7] More and more generous offers of autonomy don’t satisfy minority ethnic groups, who “will instead use control over their own regional governments to cement national identities, to press a secessionist agenda, to capture institutional weapons, and to weaken the common-state government in order to demand greater power and an independent state.”[8] This kind of behavior is commonplace in BiH, as will be discussed below, and could possibly increase if further fragmentation occurs.

Roeder makes a compelling case; however, there is a lively debate on his research, findings and possible implications. For example, the Ethnopolitics volume considers Roeder’s argument in four cases, with varying assessments.[9] Roeder provides a concluding article to re-state his key arguments, and to address some of the comments and concerns made throughout the volume, broadly concluding that his core argument stands, as “in all four cases, without strong segment states secessionist movements have been weak, fragmented and sporadic.”[10]

For the purposes of this review, several questions are presented. Does BiH already include a segment state – the RS – and, if so, does this case fit the model proposed by Roeder? Second, based on this first question, is a second segment state in BiH – a Croat de facto or de jure entity – a road towards cohesion or further fragmentation? Would its creation de facto make the remaining Bosniak segment a segment in its own right? Third, can a state that consists of three segment states have any hope of stability?

1. What is a Segment State?

Roeder defines a segment state as one that has been partitioned from the body of the common state on both communal and territorial lines. The RS already enjoys this arrangement, as the RS exists as a highly autonomous entity with significant political competencies (territorial partition) and is very homogenous communally, hosting a primarily Serb population (communal partition). In the Federation, the ten cantons already provide a good degree of communal partitioning (the mixed cantons of Herzgovina-Neretva and Central Bosnia being the sticky exceptions). A de jure third entity would provide full territorial partitioning, while electoral district gerrymandering would have the effect of solidifying de facto communal partition.

2. Crisis, Escalation, Secession

Roeder explains that crisis occurs due to a struggle for competencies and authority between segment-state and common-state leaders. In his introduction, Hoddie summarized three ways that such escalation may occur:

a) Segment-state leaders may seek greater representation within the central government institutions

The RS already enjoys 1/3 representation in the state parliament, and has strong influence in others; Dodik’s party wisely holds the Ministry of Civil Affairs to maintain a tight leash on a ministry with potentially integrationist tendencies. The RS enjoys an entity veto,[11] and is currently demanding an “EU coordination mechanism” that would bypass the Council of Ministers and confirm RS veto power is available at every step of the EU negotiation process. Dodik has proposed replacing the BiH Presidency with Entity presidents; while a perhaps flippant comment, it is not an absurd request if one’s goal is to ensure the state is a hollow shell.[12] Talk of demilitarizing BiH by greatly reducing or eliminating its armed forces is built less on a foundation of peaceful neutrality and more on an interest in breaking down a state institution.[13]

Leading Croat nationalist parties have sought to use the 2009 Sejdic-Finci decision to seek to advance their own agenda, with more subtle yet similar end goals. To avoid future “Komsic scenarios,”[14] they have sought an election solution that “ensures that Croats vote for Croats,” either by creating electoral units that may be minimally multiethnic but which favor one or the other ethnic majority to ensure greater “territorial autonomy.” Dragan Covic has spoken of ensuring that Croats maintain the number of seats (Ministries, etc.) due to them; even in Brcko District, with its informal “ethnic key,” there has been talk among Croat parties of codifying the principle of ethnic rotation for a position like the mayor.[15] If an “EU coordination mechanism” includes sub-state units of government, then the argument is that cantons should have a say as well.

b) Segment-state leaders seek greater autonomy to design their regional government

The BiH Constitution already devolves the vast majority of competencies down to the entity, and in the Federation, the cantonal, levels. While there may have been “visions” at Dayton that this would be complemented by sufficient state-level enforcement mechanisms to ensure harmonized application of standards and state-wide assurance of human rights, this ideal never materialized.

The RS already has near complete autonomy to make entity-level decisions in justice, health care, social welfare, education and many other basic aspects of life (devolving little to units of local self-government). In the Federation, the cantons enjoy similar autonomy, though with the addition of the Federation layer, which is much resented by Croats who feel they are the junior partner. (This extra layer is also costly, adding an additional burden of bureaucracy to an already over-staffed public sector.[16]) In fact, this layer results in the entity-level Ministries simply being ignored in some cases; for example, the Federation Ministry of Education holds little sway over Croat cantons who coordinate to ensure implementation of the educational curriculum in the Croat language.[17]

The RS has sought to substantially weaken some of the few available state competencies in, for example, the justice sector, challenging the existence of the High Judicial and Prosecutorial Council (HJPC), seeking to curtail the role of the Court of BiH, and saying that the three international judges on the BiH Constitutional Court should be removed. Previous efforts to end international prosecution of war crimes and corruption were also aimed at limiting the role of the state in these matters. In the absence of a BiH Supreme Court, each entity enjoys its own Supreme Court, leading some to point out the need for such a supreme judicial authority to ensure equal access to justice.[18]

What is the link between entity autonomy and entity citizenship? The increased interests in the meaning of RS entity citizenship in the past year, combined with amendments to laws regarding citizenship, residency and ID cards, suggests that there is potential to tighten links among the concepts of “citizen” and “resident,” with a potentially significant impact on voting among internally displaced persons and the diaspora. In Brcko, citizens who want to vote must select an entity citizenship even though they do not reside in either entity. Is it possible that entity citizenship could increasingly confer certain rights or privileges not available to all citizens? If this is possible, would calls for greater autonomy for the Croats be more or less likely?

3. Segment-state leaders insist on greater autonomy from the central government in decision-making; the most extreme being secession

The section above addresses this issue on autonomy of competencies and decision-making in territorial units. Again, the RS clearly enjoys this autonomy, while the Croats lack such explicit territorial-communal autonomy, being stuck within the confines of the Federation.

RS calls for secession are a regular occurrence in the Dodik era.[19] Dodik systematically uses language calling for the dissolution or destruction of BiH, which would allow the RS to exist outside of this unwanted state framework. Many observers point out that holding this trump card – but never playing it – is the secret to Dodik’s remaining the big fish in a small pond. However, the language greatly affects social and political confidence, and makes any efforts at real reconciliation nearly impossible. The Croat equivalent is the interest in “seceding” from the Federation, either through ignoring the Federation government and its ministries and focusing on coordination among Croat majority cantons (and even short-circuiting entity government formation), or through cobbling together a Croat-favoring electoral unit.

Concluding Remarks

None of this is to say that the Bosniaks are immune to any of these dynamics or interests. The Bosniaks – by far the most numerous constituent people in the Federation – de facto enjoy more congruence between their declared agendas and the entity structure. In the Bosniak majority cantons, they enjoy the same autonomy as the Croats. At the Federation (and state) levels they can parrot the language of equal rights for all in the current system while secure in the fact that they enjoy a clear demographic advantage in the entity.

Would the proposal – by Stier and others – for more federalism for the Croats really help to stabilize the state, and enable it to make the decisions and, yes, compromises, needed to move forward in Euro-Atlantic integration? In light of some of the data on the impact of segment states in leading to weaker state institutions, would this help or hurt the long-term prospects of the country? If – as some suggest – structural reform of the Federation is needed as a stepping stone to reforming the state, is there any evidence to suggest that further division of the country into more communal-territorial units will make this more likely? And what of the people who again find themselves in the “wrong” place when such changes take place? (BiH’s Croats are not neatly “compact” in terms of their residence throughout the Federation.) Can a reduced basket of rights and privileges be offered to certain citizens based on this fluke of geography? (BiH’s divided education systems suggest this can in fact happen indefinitely.)

What is, of course, missing in all of these calculations is any notion of a civic option; any notion of the rights of the “others;” any notion of citizens directly electing individuals to represent them; any notions of direct electoral accountability; any notion of politicians being responsible to all citizens in the country rather than a narrowly targeted group. Such integrative approaches are rarely proposed by political parties that benefit from the inherent divisiveness of the system and, as such, are rarely proposed by an increasingly passive international community.

While the consociational model of power-sharing has been the “go to” option for many seeking “workable solutions” for post-war stability, is it possible that Roeder’s thesis suggests that the era of operationalizing Lijphart’s consociationalism might be replaced by more critical assessment of this approach and its after-effects, perhaps giving extra weight towards often ignored interest-based (not ethnic interest-based) integrationist electoral and conflict management proposals?

A BiH with one segment state has proven to be untenable. Whether a BiH comprised of two or three would be more or less likely to produce a stable future EU member state is worthy of discussion, as poorly thought through “interim” policies made in the past have led to two decades of stagnation. The possible consequences of increased communal and territorial autonomy in a weak state with no agreement on the nature of the country and no leaders offering a shared vision for all of the country’s citizens should be considered before more autonomous segment states are de facto established.

Dr. Valery Perry is Chief of Party for the Public International Law & Policy Group (PILPG) project in Bosnia and Herzegovina,implementing a project to increase civil society engagement in constitutional reform processes in Bosnia and Herzegovina. Valery Perry first worked in Bosnia and Herzegovina (BiH) in 1997 as an election supervisor. She has lived in Sarajevo since 1999, conducting research and working for organizations including the NATO Stabilization Force (SFOR), the European Center for Minority Issues (ECMI) and several NGOs. She worked at the OSCE Mission to Bosnia and Herzegovina in Sarajevo from 2004 – 2011, as Deputy Director of the Education Department, and Deputy Director of the Human Dimension Department.

*The author would like to thank Kurt Bassuener, Sue Folger, John Hulsey, Soeren Keil, Brian Lanahan, Adam Moore and Raluca Raduta for their comments and suggestions. All opinions are those of the author, as are any errors.

1) “Stir: Federalizam kljuc za evropski put BiH”. RFERL. 23 January 2014.

2) Sebastian, Sofia. “Breaking the Impasse: Constitutional Reform in Bosnia”, FRIDE Policy Brief No. 68, March 2011; Perry, Valery. “Constitutional Reform Processes in Bosnia and Herzegovina: Top-down Failure, Bottom-up Potential, Continued Stalemate.” State Building and Democratization in Bosnia and Herzegovina. Soeren Keil and Valery Perry (eds.). Ashgate (forthcoming 2014).

3) Keil, Soeren. Multinational Federalism in Bosnia and Herzegovina. Ashgate: 2013.

4) Soeren Keil, ‘Building a Federation within a Federation-The Curious Case of the Federation of Bosnia and Herzegovina’ in: Le Europe en Formation, Vol. 64, forthcoming 2014; International Crisis Group, Federation of Bosnia and Herzegovina- A Parallel Crisis, Europe Report No. 209, 2010.

5) For legal background on this topic, see Richard F. Iglar’s “The Constitutional Crisis in Yugoslavia and the International Law of Self-Determination: Slovenia and Croatia’s Right to Secede,” Boston College International and Comparative Law Review, Vol. 15, Issue 1, 1992, pp. 213 – 239.

6) Arend Lijphart is the “father” of this approach. See Democracy in Plural Societies: A Comparative Exploration. Yale University Press, 1977.

7) Hoddie, Matthew. “Introduction: Segments States in the Developing World.” Ethnopolitics. Vol. 13, No. 1, 2014, p. 2.

8) Ibid.

9) India, Cameroon, Nicaragua and Tibet.

10) Roeder, Philip G. “Secessionism, Institutions, and Change.” Ethnopolitics. Vol. 13, No. 1, 2014, p. 88.

11) Bahtic-Kunrath, Birgit. “Of Veto Players and Entity-Voting: Institutional Gridlock in the Bosnian Reform Process.” Nationalities Papers. Vol. 39, No. 6, November 2011, pp. 899-923.

12) “Dodik: Predsjednik RS bi Trebao Biti u Predsjednisvto BiH; RS Krece ka Samostalnosti. Bljesak.info. August 7, 2013. Available at http://www.bljesak.info/rubrika/vijesti/clanak/dodik-predsjednik-rs-bi-trebao-biti-u-predsjednistvu-bih-rs-krece-ka-samostalnosti/6304/ispis

13) A defense reform law adopted in 2005 eliminated the entity armed forces and Ministries of Defense. See Azinović, Vlado, Kurt Bassuener and Bodo Weber; Assessing the Potential for Renewed Ethnic Violence in Bosnia and Herzegovina – A Security Risk Analysis, Atlantic Initiative and Democratization Policy Council, October 2011. In a November 2013 paper or entitled, “The Dayton Structure of Bosnia and Herzegovina and the Position of the Republika Srpska” the argument is put forth that since two armies existed in BiH when Dayton was signed, and since the constitution has not been changed, then “constitutionally” entity armies still exist. (p. 36).

14) Briefly, BiH’s three-person presidency consists of one member elected from the territory of the RS, and two from the territory of the Federation. Voters in the Federation may elect to vote for either the Bosniak or Croat candidate. Zeljko Komsic, a Croat then in the SDP, won the Croat seat on the presidency in 2006 and 2010, attracting a large number of non-Croat votes. Croat nationalist party leaders claim that he is therefore not a legitimate representative of the Croat people.

15) BiH’s first post-war census was held in October 2013. Official results will not be available until late 2014 or early 2015. There are concerns that if the results show that Croats are a very small number of the population, or possible even smaller than those claiming to be a non-constituent “others,” then there could be questions about Croats continuing to enjoy 1/3 of positions in a number of bodies. See Perry’s, “The Census in Bosnia and Herzegovina: A Basic Review.” Democratization Policy Council Policy Note #3. October 2013 (available at: http://democratizationpolicy.org)

16) Constitutional Reform in the Federation of Bosnia and Herzegovina: Needs Assessment. Expert Group for Federation BiH Constitutional Reform. Mostar-Sarajevo-Tuzla, March 2013.

17) The Federation curriculum is technically available to all schools in the Federation; however, in practice it is only used in Bosniak majority areas. See Perry’s, “Classroom Battlegrounds for Hearts and Minds: Efforts to Reform and Transform Education in Post-war Bosnia and Herzegovina.” Bosnia-Herzegovina Since Dayton: Civic and Uncivic Values. Ola Listhaug and Sabrina P. Ramet (eds.). Longo Editore Ravenna, 2013, pp. 225-246.

18) Dalio Sijah, Bosnia Divided on Need for State Supreme Court, (2013), available at http://www.bim.ba/en/219/10/28244/?tpl=30; European Commission for Democracy Through Law, On Legal Certainty and the Independence of the Judiciary in Bosnia and Herzegovina, 12 (June 15-16, 2012).

19) Toal, Gerard. “ ‘Republika Srpska Will Have a Referendum’: The Rhetorical Politics of Milorad Dodik.” Nationalities Papers. Vol. 41, 1, 2013, pp. 166-204.