A Constitution of the People and How to Achieve It

Holbrooke confirms that during negotiations they stuck to the 1994 Contact Group (US, Russia, France, Britain, and Germany) plan to divide Bosnia 51:49 despite criticisms. The basis for that were a number of assumptions. He believed that departing from the 51:49 ratio would lead to: infighting between the Croats and Serbs, future refugee flows that would lead to a big concentration of Serbs in the East such that there would be partition, and concerns over the viability of any ‘Serb Republic’ without Banja Luka as the capital (USD Jun 1996, 16, 19-21, 33). The State Department also appeared to proceed with the assumption—pushed by Milošević—that Karadžić would lose any election after the war (USD Jun 1996, 16, 19-21, 33). The view was that reducing Republika Srpska to a rump part of Bosnia would not be possible. They had by this stage also got Izetbegović and Milošević to accept two entities and Warren Christopher, as Holbrooke noted, felt “personally attached to the Contact Group plan as he had negotiated it” and “did not wish to reopen it.” The Bosnian Serbs could also press for parallel relationships to be established with Serbia because the Croats had already secured such a carve out in the Washington Agreement creating the Federation. Both Croatia and Serbia wanted to hold out for future separation and annexation or return, as they saw it, to the “motherlands” (USD Jun 1996, 31-32).

Holbrooke, however, considered that he may have made a mistake: for not bombing the Bosnian Serb forces further than the US did, for not taking more decisive action against Republika Srpska, for accepting the name ‘Republika Srpska’, and for not negotiating harder on the 51:49 split (USD Jun 1996, 13-17). These reflections, with hindsight, are instructive. Muhamed Šaćirbey, Bosnia’s foreign minister who resigned during the Dayton talks in protest at the pressure being applied on the Bosniaks, has said: “He [Milošević] understood that Holbrooke was very eager to get a deal, and much of this eagerness was very personal, for recognition and further political ambition […] In the end, I realised that much of what happened in Dayton was about the personalities” (Borger 2015).

Aside from the Geneva Principles, emanating from some musings on the back of an envelope, by late September 1995 there was no formal document about what powers would flow to the two entities under any possible settlement or what a constitution would look like (USD Jun 1996, 22-23). What did follow was what Holbrooke saw as the need for a “central connecting structure” between the entities which resulted in the New York Principles of 26 September 1995. Those ensured that the two entities would honour international obligations, that elections would take place as soon as possible, and that there would be the creation of a parliament, presidency and constitutional court.33 The presidency and parliament was to have two thirds representation from the Federation and one third from the RS. The first language in relation to ethnic vetoes also began to appear—in relation to the presidency—which would later be locked in at Dayton despite the State Department’s apparent attempt to reopen discussion of it (USD Aug 1996, 52-53). Much of the flesh on the constitution was added in late September 1995 (USD Aug 1996, 64).

What this loose chronological account shows is that the events leading up to the signing of the Bosnian constitution can be characterised in two ways: at best, they were extremely elite led, confined to specialist lawyers, and prescriptive in nature; at worst, they were superficial and abstract with little or no regard to the demonstrable political culture, history, sociology or religion of Bosnia which were the presumed source of the conflict. This is not to say anything by way of criticism of any individuals involved in the drafting who were clearly accomplished, with vast and demonstrable track records in law, diplomacy and negotiations. But the process belies an environment where men—and almost exclusively men, as noted earlier—emanating from a very particular legal and political clique decided upon the fundamental governance structure of a diverse European nation with a thousand-year history. There was perhaps no time but there was, either way, limited thinking about inclusion, representation and legitimacy.

Comparing Britain and Bosnia

Why would it be worthwhile or even necessary, one might rightly wonder, to compare such radically different constitutional arrangements as those to be found in Britain and Bosnia?

The comparison in this book is between the polar opposite processes of constitutional creation, development and amendment in Bosnia and Britain. It is much less a comparison of the two countries’ constitutions per se. This book is concerned not with the content of Bosnia or Britain’s constitutions but something far more fundamental:

 How was the content of the constitutions determined?

 Who had a say on the constitutional negotiations and why?

 If the content of the constitutions is problematic, then why is it so and who decides?

 How might the problematic aspects of the current constitutions be remedied?

There are a number of reasons both practical and principled why the comparison between Bosnia and Britain is important but two are particularly relevant. First, the comparison is backward-looking to allow consideration of inclusion, legitimacy and representation in constitution-making and, in particular, the pre-eminence of political culture. Second, the comparison is forward-looking so that the opportunities and dangers presented by both evolutionary and revolutionary constitution-making processes can be assessed.

Bosnia and Britain sit at the very opposite ends of a spectrum that includes constitutional creation, development and amendment. Britain’s constitution is unwritten or uncodified and has endured for over 350 years as a miscellaneous collection of flexible conventions, norms and rules governing political behaviour. It had no single foundational moment, it has no formal amendment process, and its development has been evolutionary. It allows a possibility of realising the idea of a social contract between the people and the State although, in practice, any such realisation cannot happen without some formal step. Bosnia, by contrast, has a written, rigid and imposed constitution being as it was merely an annex to an international peace agreement. It is devoid of any particular cultural, societal, or historical connection and, in practice, has a strict amendment process which means, for reasons set out in Chapter 4, it cannot undergo slow and gradual evolutionary change. No one among the existing Bosnian political elites is incentivised to do that within the current system.

Understanding the two polar opposites of the process of constitutional creation and amendment allows us to glean important lessons relating to: inclusion and legitimacy in the creation and amendment processes as well as on future opportunities and threats. The process of constitutional design in Britain is considered first and then in Bosnia second.

On one view, there appears in Britain a closer union between culture, shared history, and geography of its people and its constitutional arrangements. The past and the present are said to gravitate along a general trend line. Although the people have never really had formal involvement on the question of constitutional design in Britain they have, or can, indirectly shape it over time through engagement in politics. The fight for universal suffrage, the ending of slavery, movements for social and civil rights, and devolution being cases in point (Hennessy 1995; 2017). This school of thought, would say that there is a great deal of disagreement about the day-to-day of politics but until relatively recently (see Chapter 4) there was not a great deal of fundamental disagreement about the State and its general constitutional structure.

Sumption (2019, 26-27) believes that there are two characteristics which demonstrate people’s acceptance of decision-making processes in Britain: representative democracy through the operation of Parliament and the rule of law. Ardent supporters of the British system, what Hennessy (1995) calls “deep traditionalists” consider it a success. Hennessy argues that the current system has seen Britain through the “acquisition and disposal of the largest territorial empire world has ever seen, saw us through two great total wars in the 20th century and a 40-year confrontation with the Soviets and their allies, so why would it not see us through now” (BBC 2017). In fact, his contention is that the current system is not flexible enough because the British constitution has become too prescriptive, too bureaucratic and too much power has been handed over to “unelected people”. That is a presumed reference to judges and civil servants. Outside of a coterie of intellectuals, lawyers and politicians, this trend of thought, would say that there is a great measure of generalised trust among the people indicating tacit consent or legitimacy for the structure as a whole. As one commentator has put it, “an unshakeable belief in the efficacy of our political system” (Birnberg 2012). Their detractors would argue the opposite.

On that other view, Britain has lost its way and the decision-making process is no longer legitimate. Britain’s constitution could be said to have been loosely attuned to history, society and culture but today it is more remote than ever. This view says that given Britain’s uncodified constitutional arrangements, the presumption that elites will always play by the “rules of the game” and honour unwritten rules of behaviour is misguided. The government, it is said, can successfully utilise or engineer populist or nationalist sentiment to push the rules to breaking point and have. The most recent examples of that would include: the disapplication by the government of long-standing conventions which led, for instance, to the unlawful attempt by the Prime Minister to advise the Queen to prorogue parliament in 2019. That advice, the British Supreme Court found, conflicted with the conventions of parliamentary sovereignty and parliamentary accountability.34 The government, unhappy with this sort of ‘judicial interference’, has sought to undermine the rule of law by attacking judges who have reviewed government decision-making and found against them.35 More recently, the government has launched a host of ‘independent reviews’ including into: judicial review (the implicit agenda of which appears to be a radical curtailment of judicial scrutiny of government decision-making), the application of the EU labour laws and the Human Rights Act 1998 (to fulfil a long-standing manifesto commitment by the Conservative Party to disapply the application of the European Convention on Human Rights). These reviews apparently have nothing to do with judicial decisions that have found the government to have violated constitutional rules.

The executive, unhappy with legislative scrutiny as much as judicial, has gone even further by bypassing minority views through the use of blunt state-wide referenda (that have no basis in the British constitution) and even the views of entire nations from issues as fundamental as Brexit to managing the coronavirus pandemic (Emerson 2020). This has been supplemented by curtailing parliamentary scrutiny of bills through use of obscure and arcane procedural rules and delegated legislation (Russell 2021). The executive, also unhappy with the interference of ‘foreign laws’ has proposed to unilaterally disapply or violate obligations under international law (such as in the Internal Markets Act 2020 or the Overseas Operations (Service Personnel and Veterans) Bill 2019–2021).

Within the context of these recent issues are long-standing constitutional problems which have come to the fore. Long standing problems include: an unelected House of Lords, inequality amongst the regions, lack of adequate representation of the people in Parliament, and poor legislative scrutiny over the actions of the executive. These examples, it is argued, are all said to show that Britain is in a real constitutional crisis and business as usual is no longer sustainable. Whichever view is correct, and this book express a clear opinion in Chapter 4, there appear to be two prior considerations relating to political culture and about people’s inclusion in decision making.

First, are the British political elite representing the best interests of their constituents in Parliament when it comes to constitutional decision-making? Is that representation attuned to the political culture of the British people? Is political culture ever properly gauged or assessed in Britain? Chapter 2 discusses the issue of political culture in detail.

Second, how much say do the people have, or should they have, in constitutional questions? What form, if any, should greater inclusion take? Can and should the people have a say in what is fundamental about their constitution? If the people have a view should that be considered? Chapter 4 begins to address the processes of constitutional change in Britain. Chapters 5 and 6 consider these questions head-on and provide tentative answers.

Bosnia, like Britain, has a rich and varied historical tradition stretching back a thousand years. It is a living embodiment, some have argued, of ‘unity in diversity’. The diversity existed before much of Europe was that diverse. It also remained so after much of Europe was no longer diverse having carried out horrific atrocities against minorities during the Second World War including in occupied Bosnia itself. Yet, Bosnia’s current constitutional arrangements do not, in any way, take into account historical co-existence and diversity. The international principles that were seen as inviolable—preservation of borders, the right of people of different religions to live together, the refusal to reward brutal aggression—were all arguably betrayed.

The Bosnian constitution is not based on individual political rights but instead on group or collective rights. The Preamble to the constitution identifies three main categories of people: Bosniaks, Bosnian Croats and Bosnian Serbs as ‘constituent peoples’, ‘Others’, and ‘Citizens’. The Bosnian constitution is premised on the collective equality of the constituent peoples as ethnic groups affording them special vetoes, ethnic quotas in State institutions and power-sharing within a decentralised government. ‘Others’, which today comprise some 3 to 7 per cent of the population were not defined by the Constitution but rather by the ECtHR following legal claims against the State for discrimination.36 The ECtHR defined them negatively as minorities that do not declare themselves as members of constituent peoples due to mixed marriage, parenthood or any other reasons.37 Similarly, the ECtHR defined Citizens as those who declare themselves as such.38 Others and Citizens who do not identify as constituent peoples cannot serve in the Presidency or the House of the Peoples. A Bosniak and Croat representative in the House of the Peoples or the Presidency cannot come from the RS and a Serb cannot come from the Federation (Išerić 2016).

Criticisms at the time and ever since (particularly by those who felt the full brunt of war crimes) have focused on the idea that the division and segregation sought by certain wartime leaders was institutionalised and deplorable crimes rewarded through the ill-thought out consociational model.39 It was seen as a compromise predicated on the outcome of military territorial gains and ethnic cleansing,40 which handicapped, at its infancy, much hope of a unified multi-ethnic State and much socio-economic development with it. That outcome betrayed, in essence, a tradition of ‘unity in diversity’ at a critical juncture; when Bosnia’s multi-ethnic milieu happened to be severely punctured by that “counter current of persecution and slaughter” attempting to destroy it (Malcolm 1996; Agee 2002; Mahmutćehajić 2005, 2011). There are critical aspects of the Bosnian constitution which, therefore, require reform including, inter alia, ensuring compliance with obligations under international treaties, such as the ECHR.41 If a constitution is seen to form part of a body then in Bosnia’s case, arguably, it was the yoke on its body politic, the people.

Detractors of this view will argue that a peace was made, and that peace has, in fact, proved durable to date. On that view, there is still plenty of time, within a peaceable framework, to achieve meaningful outcomes through constitutional tinkering and the constitution’s development as a ‘living instrument’. Some would point to Germany as an example that has made hundreds of amendments over the years to its Basic Law (despite being imposed by the victors of the Second World War) and has by all accounts accepted and made its own an imposed constitution. This book accepts that constitutional tinkering or evolution is a possible pathway out of constitutional crisis even if an imprecise and uncertain one.

The difficulty with the latter view (some of which emanates from historical revisionism by drafters or negotiators) is that a durable peace is only durable until it is not. In any case, it is difficult to argue against a contention that there is a frozen conflict in Bosnia as it satisfies, as Perry (2019) has set out, all the criteria for one:

 core issues going back to the violent conflict remain unresolved and salient including territorial control, population return, and ethno-national appropriation of the civic, social and cultural space;

 core disputes are at the forefront of mutual relations between groups including exclusive ethno-national institutional representation, identity, education, and patronage networks; and

 credible threats of the renewal of violence is ever present particularly in the context of parallel structures being maintained by secessionist-oriented leaders supported by outside powers such as Croatia, Serbia, and Russia (Hamilton 2020).

The probable pathway for Bosnia is collapse. Bosnia cannot afford to wait for evolutionary outcomes given the external pressures emanating from predatory neighbours and the internal pressures emanating from nationalistic—or secessionist—elite impulse. If Bosnia is to lapse into conflict, much soul-searching in policy circles will follow as to the root causes of that future conflict. What Bosnia needs are evolutionary outcomes, locally led, in the short term but that is only possible if there is genuine support for outcomes tending towards democratic outcomes premised on values conducive to democracy.

Just as there were two prior considerations for Britain set-out above the same two are relevant to Bosnia and they relate to political culture and people’s inclusion in decision making.

First, are political elites representing the best interests of all their constituents when it comes to constitutional decision-making in the post-Dayton framework? Is that representation attuned to the political culture of the Bosnian people? Chapter 2 methodically assesses the issue of Bosnian political culture.

Second, how much say do the people have, or should they have, in constitutional questions? What form, if any, should greater inclusion take? Can and should the people have a say in what is fundamental about their constitution? If the people have a view how should that be taken into consideration? Chapter 4 addresses the necessity of constitutional change in Bosnia. Chapter 5 models where Bosnian political elites and the people stand on the issue of constitutional reform. Chapter 6 provides possible answers to these fundamental questions. ۞

1 As noted in the Introduction, Bosnia and Herzegovina is referred to throughout as “Bosnia”.

2 In so far it came to be dominated by Serbia and Croatia and silenced the agency of Bosnians.

3 The Cyrus Cylinder, from the 6th century, on which is written a declaration in the name of Persia's Achaemenid king, Cyrus the Great, is one such example. Some scholars such as MacGregor (2012) have considered it as "the first attempt we know about running a society, a state with different nationalities and faiths—a new kind of statecraft.” Even today the Acts of the British Parliament and those of the Irish Oireachtas are printed on vellum for archival purposes (Oireachtas 2012). Controversially in Britain, since 23 January 2017 only the front and back covers of Acts of Parliament are retained on vellum in an effort to save money (House of Commons 2018). In Bosnia, the link between the political and traditional heritage has disappeared altogether.

4 Beneath that pre-eminent form of political community as a nation-state, there are other conceptions of ‘nation’ which may be subsumed within an existing State. Nations themselves are complicated. They are often, as scholars have explained, “imagined communities” as non-self-conscious abstractions (Anderson 1991). Alternatively, nations can “will themselves” into persistence sometimes as a fiction (Gellner 1983). Nations can have a collective shared identity which is manifest or sometimes that identity manifests over time. Nations can be solely civic in nature if they are successful in removing perceived problematic differences if those can be considered ‘problems’ at all. They may also be civic in nature if there is another common bond rooted in custom or tradition around which groups can coalesce.

5 For instance, even medieval European monarchs had to have in mind the support of the great landed gentry who may have been empowered (informally, of course) to speak on behalf of smaller landholders and sometimes even the ‘tenants’ within the monarch’s realm.

6 The pre-modern era would be considered to be before the 18th century enlightenment in Western Europe or the United States of America (“US”).

7 There is discomfort in some quarters on this gendered characterisation of constitutions and the suggestion that this has an impact on real world outcomes is often dismissed as being ‘non-demonstrable’. The reality, however, is that constitution-making has been an almost universally man-led exercise (in most of modern recorded history). It is not possible to verify gendered bias in constitutional design when there is nothing to compare it against: the claim is not possible to falsify. The fact is that man-led constitution making necessarily results in man-oriented norms, practices and rules. Men (still predominantly) make war and exercise state-sanctioned violence and then recreate the State after conflict. Only when a different (more equal or women-led) construction of the State is realised can a meaningful comparison be made.

8 In the Western tradition, at least, we may think of, a great many thinkers: Plato (375 BC); Aristotle (335-323 BC); Locke (1690); Hobbes (1651); Burke (1770); Paine (1792), de Tocqueville (1835-1840), Hamilton, Jay and Madison (1787); Mill (1859); Rawls (1971); Habermas (1998, 2001); and Derrida (2002).

9 Thoburn v Sunderland City Council [2002] EWHC 195 (Admin) at [63-64]; BH v The Lord Advocate (Scotland) [2012] UKSC 24 at [30].

10 A v Secretary of State for Home Department [2004] UKHL 56, [2005] 2 AC 68.

11 There is extensive case law on this. See, for instance, D v NSPCC [1978] AC 171, Foster v British Gas [1991] 2 AC 306, Chandler v DPP [1964] AC 763 (HL).

12 There is a debate and controversy surrounding the exact scope of prerogative powers and case law is supportive of both maximalist and minimalist claims as to the scope of the powers. See, Blackstone, William, Commentaries on the Laws of England, 1765–1769; Dicey, A.V., Introduction to the Study of the Law of the Constitution, 10th ed., 1959.

13 Article 1 provides that the “power of suspending the laws or the execution of laws by regal authority without consent of Parliament is illegal”; Article 4 provides that the “levying money for or to the use of the Crown by pretence of prerogative, without grant of Parliament, for longer time, or in other manner than the same is or shall be granted, is illegal”.

14 In June 1992 Milošević remarked to a reporter: “We are not supporting any military action in Bosnia Herzegovina. We are only supporting our people to survive there with the humanitarian and civilian help.” See also Gaeta (1996, 156).

15 Milošević headed a unified delegation (comprising representative of the Bosnian Serbs and the FRY) on behalf of the Bosnian Serbs (or more properly on behalf of the SDS/VRS (Vojska Republike Srpske) forces).

16 Almost all of the recent Peace Implementation Council communiques (which are issued twice a year, following two-day sessions) state and reiterate that no entity has the right to secession as they exist solely due to and within the sovereign territory of Bosnia as per Dayton.

17 What this meant in practice is that whilst the violent conflict had ceased the ‘non-violent’ conflict between the RS and Federation elites resumed.

18 Annex 7 (Agreement on Refugees and Displaced Persons), Dayton Peace Agreement.

19 See, for instance, Riga and Kennedy (2013) for State Department thinking at the time.

20 The right to a free trial and the right to be free from arbitrary detention derive from Magna Carta 1215, clauses 39 and 40 (as amended by Magna Carta 1225, Clause 29). The United Nations’ Universal Declaration of Human Rights (UDHR) was hailed by Eleanor Roosevelt, chair of the drafting committee, as “the international Magna Carta of all men everywhere” (Roosevelt 1948).

21 Even in January 2017 Britain’s Supreme Court was citing the Magna Carta as containing the ‘most long-standing and fundamental’ rights. Belhaj and another v Straw and others [2017] UKSC 3 at [98].

22 The Magna Carta was revoked and reconfirmed on some fifty or more occasions (Carpenter 2015).

23 Vidovdan is the memorial day to Saint Prince Lazar and the Serbs who fell during the Battle of Kosovo against the Ottoman Empire on 15 June 1389 (Julian calendar). It is an intrinsic part of Serbian ethnic and national identity.

24 US Congressional Research Service, Bosnia and Herzegovina, Background and US Policy, 15 April 2019, 2.

25 “Letter from 1920” in Andrić (1993, 115).

26 A colleague, Dalila Sadinlija, reminded the author that there were many such incidents, and that the sniper story is one known by many who were besieged in Sarajevo during the armed conflict.

27 Carmichael (2015, 189) has argued for this proposition by assessing the culture, language, and the history of Bosnia. This book seek to do so more practically by looking at the difference between elite and popular preferences.

28 By the International Criminal Tribunal for the Former Yugoslavia (UN ICTY) and the International Court of Justice (ICJ).

29 The plans were the: Carrington–Cutileiro EC plan from February to March 1992; Vance–Owen Peace UN and EC Plan from January to June 1993; Owen–Stoltenberg UN plan from August 1993; Contact Group (US, Russia, France, Britain, and Germany) plan from February to October 1994.

30 The US State Department records also mention Bob Merrell although the author did not find further information on him in the records.

31 Gro Nystuen was the Senior Legal Adviser to Carl Bildt.

32 There was a peace plan jointly proposed in August 1992 by the Bosniak Party of Democratic Action (SDA) and the Croatian Democratic Union of Bosnia and Herzegovina (HDZ BiH) political parties calling for the establishment of 12 cantons of Bosnia and Herzegovina, with autonomous rights. Some form of cantonal representation pre-dated the 1994 Washington Agreement. They also featured in the Carrington–Cutileiro plan.

33 In hindsight, many argue that the early election was the biggest mistake by the international community; it cemented Bosnia to the rule of the same three ethno-nationalist parties and the same ethno-national politics. The early elections merely formalised the role and gave a platform to the instigators of the war who could now continue the fight within the Dayton peace framework.

34 R (on the application of Miller) (Appellant) v The Prime Minister (Respondent), [2019] UKSC 41.

35 For instance, the issue of which institution of State was entitled to trigger Article 50 for withdrawal from the EU was subject to scrutiny in the Supreme Court too. See further, Chapter 4.

36 Estimates of population figures by ethnicity are extremely contentious and difficult to verify in Bosnia. These figures come from the Statistics Agency of Bosnia and the academic Bahtić-Kunrath (2011, 919).

37 Azra Zornic v BiH, App. no 3681/06, ECHR, 15 July 2014, para 8.

38 Ibid.

39 In fact, Milošević as negotiator on behalf of the Bosnian Serbs confirmed as much.

40 For which both Franjo Tuđman and Slobodan Milošević bore responsibility. See further Bose (2002, 53-55) and Toal and Dahlman (2011, 4).

41 See, for instance, European Court of Human Rights. Sejdic and Finci v. Bosnia and Herzegovina, (27996/06 and 34836/06), Council of Europe: 22 December 2009; or Art. 70(1) obligations under the Stabilisation and Accession Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part. Luxembourg, 16 June 2008.