II Historical and Institutional
Bosnia 1991–1996: From Communism to Ethnic Conflict
This chapter examines the institutional and political background in Bosnia and Herzegovina before and after the Dayton agreement was signed in 1995. The first part of the chapter explores institutional legacies, looking back to the institutional structures in the socialist former Yugoslav federation. Exploring these institutional legacies is central to understanding their impact on post-communist politics. The second part focuses on the years following 1989 and the dissolution of the Yugoslav federation, which led to the ethnic conflict in the country that started in 1992. During this period, political actors' choices set the institutional and political contours of the new state, which constrained their future choices and available solutions. The final part of the chapter looks in greater detail at the institutional arrangements that the Dayton agreement introduced in Bosnia, focusing in particular on the power-sharing nature of the post-conflict institutional set-up. The outlook for Bosnia's institutional system is further elaborated in the final sections of the chapter, with a particular emphasis on its implications for policy-making.
This chapter argues that, while the Dayton agreement was undeniably a product of external actors trying to put an end to the conflict, there are significant continuities between preand post-conflict institutions in Bosnia. It argues against the common claims that the Dayton Accords were imposed by external actors paying little heed to the needs of the domestic elites, claims which place the responsibility for the post-conflict political failures on the lack of input that local politicians had in the post-conflict arrangements.1 Domestic political elites were involved in the peace negotiations, their preferences mattered and they consented to the terms of the peace agreements, albeit from a set of available options constrained by the external actors. The post-conflict institutional outlook bears a notable resemblance to federal power-sharing provisions in Yugoslavia, because many of the features of post-conflict institutions reflect what domestic politicians preferred and were already familiar with.
1 For example early European Stability Initiative reports: 'Imposing Constitutional Reform: The Case for Ownership' March 2002, or 'Travails of the European Raj', July 2003, available at: esiweb.org (accessed 20 November 2010).
Yugoslav Communism (1974–1990): Ethnicity and Ideology
When studying institutional legacies in Bosnia and Herzegovina, the focus is inevitably placed on communist institutions. There are two major reasons for looking at communist institutions – the longevity and the penetration of the communist regime. Having lasted for more than four decades in Yugoslavia, communism was not only the dominant ideology and political system, but the only system that the political leaders at the head of the republics in 1990–91 were familiar with. The authoritarian nature of communism had prevented debate on alternative political values, had penetrated deep into the political tissue, and had removed all but faint residues of previous regimes and institutions. This was especially true in Macedonia and Bosnia, the two republics that had no previous history and experience of independent statehood. That meant that in 1990–91 their political leadership was left with a limited range of familiar institutional designs. When the constituent republics of Yugoslavia held their first democratic, multiparty elections and independence referendums in 1990, the Yugoslav federation was governed by the provisions of the 1974 Constitution. This was the fourth different constitution in Yugoslavia since 1945. Constitutional engineering was a common tool that Yugoslav political elites had used to address the mounting political and economic problems of the federation. Therefore, the constitutional history of the former Yugoslavia is the necessary starting point of an analysis of the institutional legacy and the subsequent trajectories of its successor states. As the following paragraphs demonstrate, the 1974 Constitution constrained the possible courses of action, shaped the ways that the Bosnian political elites articulated their
problems, and shaped the types of solutions that they sought.
The main impact of the 1974 Constitution was to re-open the unresolved issues of sovereignty and self-determination in the divided political context in Yugoslavia. A lot of the 1990–91 debates between the republics' leaderships related to the repository of sovereignty, or whether sovereignty resided in nations or the republics. The unclear wording of the Preamble left plenty of room for interpretation. The Constitution mentioned the people of Yugoslavia who, based on their right to self-determination, including the right to secession, joined together in a federal republic, where their common and separate interests were realised and protected.2 However, article 3, defined a republic as 'a state based on the sovereignty of the people' thus indicating that the republics, i.e. federal units, were the expressions of sovereignty of the people in Yugoslavia. This tension between the national and territorial grounding of sovereignty, while dormant until 1989, created major disagreements in 1990 when the federation was on the brink of dissolution. Slovene and Croatian communist leaders argued for the territorial interpretation of sovereignty and claimed that republics, not nations, had the
2 'Osnovna načela', in Ustav Socijalističke Federativne Republike Jugoslavije. [Basic Principles. Constitution of the Socialist Federal Republic of Yugoslavia] (IP Official Gazette: Belgrade, 1974). right to secede from the federal state union. Serbian elites argued the opposite, demanding the right of people, or nations, to exercise self-determination.3 These positions are not surprising, considering the distribution of the Serbs across the republics and the map of republican borders in Yugoslavia.4
These constitutional debates had a tangible effect on the political developments during the dissolution of the Yugoslav federation. Based on the argument of nationbased sovereignty, Bosnian Serb leaders treated Bosnian independence as illegal well into 1995, three years after Bosnia had been internationally recognised. They justified the Yugoslav People's Army (JNA)'s presence and the war they waged on the rest of Bosnia, as preventing illegal secession from Yugoslavia, since for them it was nations, rather than territorial units, that had the right to self-determination. The unclear definitions of sovereignty, nations and republics further testify to the failure to reach consensus about the fundamental principles of statehood within the Yugoslav federation. Despite four decades of communist ideology, the lack of basic normative unity among political elites over the most fundamental concepts of statehood, such as sovereignty, made the survival of a common state very difficult. 5 Moreover, it posed a difficult start for democracy in Yugoslavia's successor states.