Time To Rewrite Dayton?

Dear Daniel,

It has been a good year in the Balkans. In less than 12 months, Slobodan Milosevic, Franjo Tudjman, Alija Izetbegovic have all - for different reasons - left office. Even more important than the passing from the scene of these three disastrous presidents is the fact that people throughout the former Yugoslavia have - in different terms - voted in open elections against extremism and violence. After ten years of enduring racist stereotypes about their inherently violent nature, the people themselves are demonstrating, however hesitantly or problematically, the will to move on. This is not to overstate the progress: hard-line nationalism and especially corruption are prevalent, several conflict points remain, and fair Balkan winds can quickly revert to foul ones. But it would be an even greater error not to recognise the scale of this shift - and the potential it offers. Problems remain, but the war is over, and it's time to sweep away its legacy. To capitalise on this opportunity, it's essential to forge a positive broader vision for the region. It must be serious and achievable, and it must show people the true respect of holding them to the highest international standards.

Ultimately, of course, this means entry for all states into the European Union. It must therefore mean early and rigorous respect for human rights and other democratic norms. (No, The Hague cannot be put on the back burner.) It means transparent structures - including generous but conditioned aid, with strong reporting mechanisms - and rule of law, not only on the streets, but also in the business and financial sectors. To achieve this, fabulous sums of money, repeated scolding, and tens of thousands of NATO troops are not enough. An essential part of the equation must be sensible, workable, believable political frameworks for the long term. The most unhealthy and unstable political framework in the region is the constitutional house of cards known as the Dayton Agreement. This settlement is the embodiment of the horrid war compromise among the three former presidents. It institutionalises the very problems that need to be overcome. It has created an unworkable country, and it should be scrapped as soon as possible, in favour of a more sensible settlement for the future.

After five years, the obvious flaw hardly bears repeating (or have we forgotten?): Dayton recognises a political unit, in the Serb entity, based on genocide. But Republika Srpska is not the only problem. While international policy seeks to build a democratic Bosnia based on international norms of individual rights, all of the structures are based on ethnic terms. This contradiction cannot hold. If someone who is not Serb, Croat or Bosniak cannot by law sit on the presidency, a non-Serb cannot, constitutionally, be elected to the Bosnian presidency from Republika Srpska, and someone who is neither Croat nor Bosniak cannot be elected to the Bosnian presidency from the Federation of Bosnia and Herzegovina, then the entire political discourse is fundamentally perverted. An institutionalisation of political parties and structures that are ethnically based is inherently closed and, at least in Bosnia, will inevitably tend towards corruption.

The set-up means the most unworkable series of interlocking municipal, local, cantonal, federal and (few) state-wide institutions. This is unaffordable in the long term and dysfunctional in the short term. In one example, international funds may have been found to repair roads destroyed in the war, but now they are falling into disrepair again because the political structures are too dysfunctional to maintain them. I do not have space to go into the difficulties and delays which the system has forced onto the process of transforming state into private broadcasting, but having just travelled there to review the plans, I can assure you it's a nightmare of complexities. Frustration with the pace of reform in Bosnia is high, and Western diplomats complain bitterly about the intransigence and corruption in Bosnian politics. Because such complaints have some justification, that is only more reason to work for a new arrangement that does not institutionalise these very ills. Certainly after five years, it seems perverse to continue building a structure that must ultimately come down.

This is especially the case because under a recent ruling by the Constitutional Court, the Dayton political framework has essentially been deemed illegal. In a decision this summer, the Court judged that people of all ethnic backgrounds are constituent - that is, have full constitutional rights - in both entities. At a stroke, the entire entity-based structure has been challenged, and the ruling could ultimately kick the legs right out from under the Dayton table. This is probably inevitable. It would certainly be a good thing, and we should mobilise all our creativity and energies to help make it happen as soon as possible.

Yours,

Tony

Dear Tony,

There is a real need to go "beyond Dayton" in some areas. The three armies need to be integrated and a strategic doctrine developed which aims to protect all of Bosnia and Herzegovina, rather than each of its communities against the others. Nothing less will enable Bosnia to think about Partnership for Peace membership. The three intelligence services should be abolished and a new one created. The nationalist parties should be deprived of their unfair advantages, especially control of state resources and patronage. The offensive presidential election provisions to which you refer need to be changed and the nationalist-dominated upper house of the Bosnian Parliament reformed. But I don't see any reason to believe that these changes would be easier without Dayton than with it.

I've got no particular brief for Dayton. It is an untidy compromise that froze in place the armies and nationalist political parties that made a mess of Bosnia's independence. Its elaborate structures and ethnic criteria are offensive to anyone who believes in transparent, one person/one vote democracy. The wartime history of Republika Srpska is, as you note, unhappy, and so too is its post-war resistance to the return of displaced people and refugees. I will welcome the day when Bosnians see themselves as citizens with equal rights rather than as Croats, Bosniaks and Serbs "protected" by group rights. But you've gone a long way to demonstrating that Dayton remains a viable instrument, one that in time could create the kind of Bosnia that will be part of Europe. It is a Dayton institution, the Constitutional Court, which has produced dramatic change in the Dayton structure. The fact that the Court decided that provisions in the entity constitutions concerning constituent peoples were unconstitutional shows Dayton's strength, not its weakness. We should applaud and encourage the Court to continue its efforts and the international community to provide the Court with full support.

Are you sure that Dayton is so dysfunctional? Do you really want it scrapped without knowing what would come after? Are you confident something better could be negotiated? Any attempt to start again from scratch would provide extreme nationalists with a new opportunity to resuscitate separatist appeals that Dayton has stifled. Many in Western Europe would welcome Dayton's collapse, seeing it as confirmation that multi-ethnic states are not viable and partition inevitable. So, too, would some in the United States, convinced that separating Bosnians ethnically will solve the problem and allow the withdrawal of American troops.

Dayton offers potential that neither the international community nor the Bosnians have yet exploited. In December 1997, the Peace Implementation Council dramatically increased the powers of the High Representative to make binding decisions - including the authority to remove obstructionist officials. So far, these powers have been used piecemeal, but there is no reason why they could not be used in a comprehensive effort to remove the many obstructionists, and criminals, who remain in positions of authority. The Office of the High Representative also created the state border police, which is proving an important addition to the central institutions not envisaged in the original Dayton Agreement. Eliminating the High Representative and his powers - which is what scrapping Dayton would mean - would not do Bosnia any good.

Another area of the Dayton framework worthy of particular international attention are the constitutional provisions that give priority over all other law to the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols. These provisions have not yet been exploited vis-à-vis laws at all levels of government in Bosnia. Doing so would likely undermine the bases of nationalist party power and enhance the rights of individual citizens regardless of ethnic identity.

Bosnia's central government, notoriously weak, can be strengthened under Dayton. The functions of the commissions on human rights and property created at Dayton revert to the central government after five years - meaning now. The single economic space that Bosnia needs to approach the European Union for an association agreement can only be realised through regulatory functions not envisaged at Dayton, but easily created if the political will is there.

The critical question remains international and Bosnian political will. With the dramatic changes in Croatia and Serbia, and the recent moderate gains in Bosnia, the situation is ripe for a more aggressive effort to exploit the potential of the Dayton Agreement over the next five years and to make the necessary changes to it where need be. The Dayton framework - a deeply flawed one - nevertheless provides Bosnia with its best hope for the future.

Yours,

Daniel

Dear Daniel,

Thanks for your reply. It confirms the broad consensus on the fundamental problems in Bosnia and our agreement that what matters is what can work to address them once and for all. Your summary of the main failings is especially helpful. The rub is that this list was as evident in December 1995 as it is today. The first time I had this argument with another colleague was in those urgent days even before the formal signatures were affixed on the accord in Paris: did Dayton placate partitionist desires in the interest of unity, or did it undermine unity in the service of effective partition?

At the time, Dayton was effective precisely because different parties could interpret it in different ways - and get on board with the project. As unpalatable as it was, Dayton did end the bloodshed. But five years on, the debate has not moved. The argument, as expressed by you and many others, is essentially that the pace of reform is acceptable given that there is no alternative, and anyway radical change could at some point be unleashed under Dayton, if only a truly bold High Representative were ready and willing.

Well, still waiting . . . We have seen a steady increase in the capacity and determination of the Office of the High Representative. But especially after the recent elections, in which national parties scored unexpected success, it can no longer be enough to place one's hopes on "one more push". This leaves reform vulnerable to shifting international commitment (a new US administration may be far less interventionist), individual personalities (what if the next High Representative is lousy?) and downright chaos (the raft of last-minute orders signed by the departing Carlos Westendorp were so hurried they even included draft notes and comments incorporated into law).

More importantly, time, money and interest are running out. The growing frustration on all sides cannot bode well for a sustained civilian engagement. I have heard several colleagues in the Office of the High Representative express the feeling - in unguarded, unofficial moments - that the unco-operative Bosnians should be left to sink in their own corruption and petty bickering. US diplomats warn that the heady days of huge international aid for Bosnia - already put into question by the widespread corruption - will be decisively ended as funds are reallocated to a changing Serbia. Without the threat of a major war, Bosnia will lose out, and we are as likely to see a reduced, weaker international administration, as the opposite.

Yet there is a more fundamental problem. The contradiction at the heart of Dayton is in the end self-defeating. I am passionate about this because I work in the civil society sector, and believe the burden placed on this fragile component of the overall environment is too great. Dayton asks people at the "grass-roots" to build co-operation and ultimately unity when division is institutionalised at the highest level - and underwritten by the international community. This is why, after five years, central institutions remain ephemeral.

We agree that the Constitutional Court ruling offers the hope of breaking down the ethnicised institutions. But I hardly feel that such a statement of the obvious proves that the Dayton structure can actually reform itself. I'll be thrilled to be proved wrong. But the fact is that the Croat and Serb jurists on the bench boycotted that vote, leaving the verdict open to accusations of yet another Bosniak attempt to undermine the sovereignty of Republika Srpska. Doubtless international officials will bend over backwards to convince Banja Luka that this is not the case, and as so many times before, they will effectively be sustaining the status quo. On my most recent visit, an influential Western ambassador in Sarajevo told me the ruling is destabilising and must be resisted.

This is just one of many examples over the past half-decade that demonstrate that Dayton is not the solution but part of the problem. Nationalists and internationals alike have a vested interest in this bankrupt arrangement, and will not allow it to evolve. As long as Dayton remains unchanged, nationalist parties will continue to exploit it to maintain power and profit, and the international community will continue to degrade itself, waste resources, and remain stuck in an unreformed and unworkable country. Bosnia is heading for a new crisis, and a new urgency is essential. It's time to move the debate from Dayton, the war and the past to Bosnia, Europe and the future.

Yours,

Tony

Dear Tony,

Sure enough: Europe and the future are the way to go. But doing away with the Dayton accords will not lead there. Why should it produce a more unified Bosnia, rather than a partitioned one? Abandoning Dayton is not in my view a practical proposal. It will not get you to where you want to go.

International attention to Bosnia is indeed waning, especially in the United States. Many Europeans, as you note, are not keen on implementing even a Constitutional Court decision that favours the unity of Bosnia. What do you think they are going to favour when it comes to writing a replacement for Dayton? The Americans would not, I suspect, have the same commanding position in revising it that they had in writing it. Who will have the clout and the will needed to create a consensus in favour of a more unified Bosnia? I had the bittersweet pleasure of returning to Dayton in November for the fifth anniversary of the agreement. Bittersweet because I know Dayton's shortcomings, which were all too obvious in divisive presentations by members of each of Bosnia's three main ethnic groups. But there was also a clear commitment to resolving their differences by legal and constitutional means. Had they had that ten years ago, the war would not have occurred.

Below the surface of nationalist claims and recriminations, a consensus on a more unified - though not unitary - Bosnia is growing. Bosnians of all ethnic groups want to enter NATO's Partnership for Peace and to sign an association agreement with the European Union. They are beginning to recognise that military integration and economic unification are necessary steps in those directions. Corruption is one of the major obstacles. Those who benefit from it want no part of economic integration, transparent military budgets and the rule of law. Fighting corruption in Bosnia would go a long way towards weakening the grip of the nationalist political parties. Reopening Dayton would give them a new opportunity to exploit their political advantages. While disappointing, the recent elections show nationalist party strength continuing to wane. Full exploitation of the High Representative's powers, implementation of the constitutional court decisions and some changes in the Dayton constitution would deprive the nationalist parties of the unfair advantages they achieved at Dayton and have abused ever since. While I must defer to lawyers on the question of changing the Dayton constitution, it seems to me there are three possible avenues: amendment in accordance with its own provisions, decision in the Peace Implementation Council and decision by the High Representative. I would prefer any of the three to a wholesale revision of Dayton.

Bosnia today cannot be governed without support from moderate political parties. Working together with more moderate nationalists, they may be able to achieve results in the next few years that were beyond reach in the last few. They may even be able to govern on their own within a few years. I see no prospect for better results from abandoning Dayton. I am going to stick with what you term "one more push". Not because I like Dayton, but because Bosnia would suffer more from giving it up. Doing that at a time when Croatia and Serbia are finally turning in the right direction would be foolhardy and risk the stability of the entire region once again. The Americans have invested $20 billion in peace-building in the Balkans over the past ten years. The Europeans have invested more. The prospects of a return on those investments have never been greater than they are today. Now is not the time to give up. The new US administration - whichever it may be - will be looking for ways to shrink and shorten the international commitment in Bosnia. Upgrading Dayton is the way to go.

Yours,

Daniel

Dear Daniel,

The real problem with our debate is not even Dayton itself - keep the name if you like, it's a fine city - but the concept of reaching political agreement that the accord represents. The three president-signatories are gone, but when I suggest "scuppering Dayton", you seem to think of another conference, more regional and international leaders, and pressure-cooker negotiations full of drama, whiskey and a last-minute deal. Smoke-filled rooms can never deliver real peace. Why? The very process justifies, legitimises and, as we have seen in the recent elections, sustains those people and parties who are the very problem. Sure, if we get three Willy Brandts in the presidency and a Churchillian High Representative - all at the same time - Dayton's flaws will not matter. But as constituted, Dayton guarantees that we won't. Bosnian democracy is strangled by 13 competing country-wide, entity and cantonal constitutions, and the constant overriding by the High Representative of democratically elected national parties - themselves legally enshrined - is itself inevitably radicalising.

We need a new approach - not a Dayton II conference but an anti-Dayton process. This takes advantage of all of the levers noted in your "one more push" strategy, starting with the imperative of an "Iron High Representative". But we must now push, not only with real determination but in a different way. This means in the first place transparency. The broader goal is to establish a participatory democracy with full access for its people to the rights, benefits and responsibilities of the European Union. The aim - because the two things are mutually exclusive - is to rid Bosnia of its ethnicised politics and (bite the bullet) in due course undercut the sovereignty of the entities and cantons. A loose state, yes, but with a meaningful and sovereign central core. Second, it means consistency, especially on core issues of democracy and accountability. Don't even begin to talk about human rights, refugee returns or new politics, while so many war criminals remain at large and "new" Serbia is extended every leniency for those fugitives it harbours. Third, it means process. The means to anti-Dayton is as important as the ends. This is because new politics in Bosnia must be based on a fundamental reinterpretation of the role of the state - as the protector of individual rights rather than, as under communism, their main threat. To build a mandate for this state-in-formation, this new role must be explained (constantly), but it also must be made believable and tangible. New state-wide institutions must be formed urgently - wherever possible with consent, but without it if necessary - but in all cases with extensive consultation with the population. A permanent regional - governmental and non-governmental - conference on co-operation would be an excellent start, and could give real meaning to the process already launched through the Stability Pact.

In practical terms, even more important than the personality of the High Representative is the commitment of the international community. "Scuppering Dayton" means recognition by the Peace Implementation Council that the entire project is at risk if a new, more forceful approach is not adopted immediately. That means a determined process to build new politics and a clearly defined goal - a non-nationalist settlement, including the erasure of the absurd former front-line known as the inter-entity boundary line - within which such politics could thrive. There may be a nationalist backlash, but this risk has always been overstated and in any event, with NATO in place, is containable. In such a complex and mixed society, what is essential is to remove the constitutional and political stranglehold and create meaningful civic mechanisms - constitutional structures, electoral systems, conflict-management institutions, media and educational systems - that can move the country forward. With a fresh vision and a realistic state structure, Bosnians will themselves be able to build a system to balance and even combine interests for the benefit of all. Yet paradoxically, there will not be more democracy in Bosnia until the West imposes it.

Yours,

Tony

Dear Tony,

I am glad to hear that you do not want a new international conference, but I am afraid the participatory mechanism you propose for creating a new and more unified Bosnia is unlikely to produce the result you want. An exclusively participatory process for revision of the Dayton constitution could well produce nothing - the nationalists have demonstrated in the most recent elections that they can still block integrationist efforts. Without vigorous action by what you call an Iron High Representative, it won't come out right. So in the end you seem to me to agree that "one last push" is the right way to go.

You suggest setting up as a goal elimination of the entities. I had once been inclined to a direct assault of this sort on the Dayton structure. If you can do it, I'd be among the first to sign on. But Bosnians who dislike the entities convinced me that a direct assault was likely to be counterproductive, causing a nationalist backlash. Entity economic power will wither if Bosnia undertakes a serious effort to prepare for an association agreement with the European Union. Likewise, the three separate armies will find reintegration logical and necessary as part of an effort to enter Partnership for Peace.

USIP has recently produced a report that outlines in specific terms policy options within the Dayton framework for weakening the entities. These include:

* giving the central government a reliable source of revenue that does not depend on the entities;

* severing nationalist party control over public resources;

* targeting aid to central institutions rather than the entities;

* amending the Dayton constitution to give all citizens three votes for the presidency (one for each of the representatives of constituent peoples);

* dismantling the three separate secret services;

* establishing a unified strategic military doctrine; and

* completion of the vetting and professionalisation of the police in both entities.

I could go on much longer. There is really a great deal still to do within the Dayton framework.

Texas today calls itself "sovereign" because it was once independent, but Texans long ago learned that their welfare depended on giving up not only independence but also most "sovereign" functions. Today, the state of Texas retains a large measure of authority to govern, but sovereign functions like defence, foreign policy, monetary and customs policy as well as protection of human rights and regulation of interstate commerce are exercised by the US government. A similar evolution by the entities is not only desirable but possible.

In concluding, I'd like to underline the importance of exploiting the democratic changes in Croatia and Serbia. Bosnia's problems are due in large part to Tudjman's and Milosevic's ambitions for Greater Croatia and Greater Serbia respectively. Croatia is cutting off the Bosnian Croat army and nationalists and insisting that Bosnian Croats make their future within Bosnia. If Serbia were to do likewise - as the international community should insist - the situation within Bosnia would improve dramatically. A truly democratic Serbia will see Bosnia as a sovereign state and partner in Balkans development. Then Serbs who live in Bosnia will be Bosnian citizens and make their future within the Bosnian state. Bosnia will be one country, no matter what lines may still exist on a map. That day may still be far off. But I think it will come sooner by upgrading Dayton than by abandoning it.

Yours,

Daniel

The above debate appears in the latest issue of NATO Review, which commemorates the fifth anniversary of the Dayton Agreement www.nato.int/docu/review.htm

The Institute for War and Peace Reporting's award-winning journalism from the Balkans can be read at www.iwpr.net.

The US Institute for Peace's recommendations for reinvigorating the Bosnian peace process and other papers on southeastern Europe can be found at www.usip.org.

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