1991 is the year that will forever mark the end of the Socialist Federal Republic of Yugoslavia, established on November 29th, 1943, by the Marshal Josip Broz Tito. Slovenia was the first country to declare its independence from Yugoslavia.[1] The process of Slovenia’s independence had been opposed by Serbia, which always acted as a leading state in the Yugoslav scene. The “Ten-Day War” began after the Serbian counter offensive, which ended with the Brioni Agreement. With this declaration, Yugoslavia formally recognized the independence of Slovenia.

The Slovenian example was soon followed by Croatia. Their independence process was longer and more complicated. Strong pressure from the Serbian government against Croatian independence led to the rupture of diplomatic relations between the two countries and the beginning of the Serbo-Croatian war.

While the phases of the war succeeded, the atmosphere between Bosnia and Herzegovina was deathly quiet, but Sarajevo’s will was made apparent: the creation of a state independent from the rest of Yugoslavia.

The presence of Serbian and Croatian minorities in Bosnia and Herzegovina has always made this state very important for the expansion projects of both Serbia and Croatia – the “Greater Serbia” or “Greater Croatia.”

The first multi-party elections of Bosnia and Herzegovina took place in 1990. The Party of Democratic Action (which represented the Croats), the Serb Democratic Party (which represented the Serbians), and the Croatian Democratic Union of Bosnia and Herzegovina (which represented the Bosnian Muslims), saw a clear victory within these elections. All of these parties had the characteristic of representing ethnic minorities.

Despite the significant programmatic and policy difference, the leaders of these parties (Radovan Karadžić, Stjepan Kljuić, and Alija Izetbegović) agreed on an anti-communist accord, which led to the creation of  a coalition to defeat the socialist government that had been in power for years. The new coalition divided state power in the following manner: the Executive Presidency of the Republic was held by a Muslim leader; the Parliamentarian Presidency and majority was held by a Serbian; Presidency of the Government was held by a Croatian.[2]

Beyond the political accords and the apparent governmental agreement, divisionary groups within Sarajevo began spreading propaganda that incited more hatred and racial division. This was done despite the population considering themselves a “Yugoslav” in Bosnia and Herzegovina as opposed to a clear ethnic separation. By this time, children were born to what was then 40% of marriages from mixed ethnic backgrounds.

Orchestrated by the government of Slobodan Milošević, Karadžić declared the birth of the Serb Republic (Republika Srpska) on January 9th, 1992. He further proclaimed himself president of the new territorial entities and annexed 70% of the entire territory of Bosnia and Herzegovina to the Serb Republic. This represented the long arm of the Serbian nationalist policies.

The imperishable goal of Serbia was in fact the union of all Serbian lands under the aegis of the motherland. This was in accordance with the motto “Only Unity Will Save the Serbs” (Samo sloga Srbina spasava).

Subsequently, on February 29th and March 1st, 1992, the Bosnian population was called to decide about the independence of Bosnia and Herzegovina. At the end of referendum, election results showed that more than 90% of voters wanted independence from Yugoslavia. However, the referendum data were distorted because only 63% of voters went to the polls; the Bosnian Serbs boycotted the referendum in part because it wanted to remain part of the federation.

On March 5th, 1992, Bosnia and Herzegovina declared their independence. A month later, the European Economic Community and the United States recognized Bosnia and Herzegovina as an independent State.

At the same time, war broke out and transformed Sarajevo into a land full of scenes of terrible atrocities. The Bosnian conflict brought to light in Europe the specter of World War II. Sarajevo became the battlefield for the forces of the Bosnian government that fought against the Yugoslav People’s Army and paramilitary Bosnian Serbs. The capital remained under siege from April 5th, 1992, until February 29th, 1996. This won the bitter recognition of the city that had suffered the longest period under siege of all modern European warfare history.

In 1993, a new ethnic conflict broke out between Bosnians and Croatians over the division of the territory. Croatia had financially and militaristically supported Bosnian Croats. On August 28th, 1993, the Bosnian Croatians proclaimed the birth of a new territorial entity with the purpose of aggregating the Bosnian region of Mostar to Croatia. This gave birth to the Croatian Republic of Herzeg-Bosnia (Hrvatska Republika Herceg-Bosna).

The destruction of many symbolic places of Bosnian multicultural civilization – like the burning of the Library of Sarajevo and the destruction of the Mostar Bridge – had the aim to annihilate the idea of a united and multicultural state.

During the bloody Bosnian conflict, the height of violence was reached, when a contingent from UNPROFOR were not allowed to act properly. This aided the forces of Drina Corps of the Bosnian Serb Army, led by the Colonel General Ratko Mladić, in the Srebrenica massacre, to the detriment of the Bosnian Muslim population from Srebrenica.[3]

To better understand the facts of the Srebrenica massacre, a study of the historical reconstruction made by the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia,[4] in the trial of the Bosnian Serb Major General Radislav Krstić is extremely helpful.

General Framework Agreement for Peace: Dayton Accords and the constitutional reform

Then end of the Bosnian conflict happened on the November 21st, 1995. On this date the Bosnia and Herzegovina restructured their state and constitution.

A peace conference was held within the U.S. Wright-Patterson Air Force Base, located near Dayton, Ohio. Held under the auspices of the United States and the European Union, the President of Serbia Slobodan Milošević (also representing the Bosnian Serbians), the President Franjo Tuđman, and the President of Bosnia and Herzegovina Alija Izetbegović were brought to the negotiating table. In addition, there were the American diplomat Richard Holbrooke and the Swedish diplomat and politician Carl Bildt.

One of the most important innovations introduced by the Dayton Agreement was the new Constitution of Bosnia and Herzegovina. Annex IV of the Dayton Agreement holds the first constitutional text issued by an international agreement. In accordance with multi-ethnicity of the Bosnian State,[5] Article 1 of the Constitution states that Bosnia and Herzegovina is a federal republic in which two autonomous political entities exist: the Serb Republic (Republika Srpska), which covers 49%, and the Federation of Bosnia and Herzegovina (Federacija Bosne i Hercegovine), which covers 51% of the total area of Bosnia and Herzegovina.

[…] Article 1

Bosnia and Herzegovina

  1. Continuation. The Republic of Bosnia and Herzegovina, the official name of which shall henceforth be “Bosnia and Herzegovina,” shall continue its legal existence under international law as a state, with its internal structure modified as provided herein and with its present internationally recognized borders. It shall remain a Member State of the United Nations and may as Bosnia and Herzegovina maintain or apply for membership in organizations within the United Nations system and other international organizations.
  2. Democratic Principles. Bosnia and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections.
  3. Composition. Bosnia and Herzegovina shall consist of the two Entities, the Federation of Bosnia and Herzegovina and the Republika Srpska (hereinafter “the Entities”). […]

The form of government of Bosnia and Herzegovina is a semi-presidential republic. Power is exercised in rotation by three presidents. They each represent one of the three ethnic groups, Bosnians, Serbians and Croatians, which constitute the State’s population. These three Presidents are elected directly by the electorate and in a contextual way every four years. Every President, in the exercise of his / her mandate, remains in office for eight months.[6] The President then appoints a Prime Minister who must win the confidence of Parliament.

The Parliamentary Assembly shall have two chambers: the House of Representatives and the House of Peoples.

The House of Peoples shall comprise 15 members, equally distributed among the three ethnic groups in Bosnia and Herzegovina. The designated Croat and Bosnian members from the Federation of Bosnia and Herzegovina shall be selected, respectively, by the Croat and Bosnian members to the House of Peoples of the Federation. Members from the Serb Republic shall be selected by its National Assembly of the Serb Republic. Nine members of the House of Peoples shall comprise a quorum, provided that at least three Bosnian, three Croat, and three Serb members are present.

The House of Representatives shall comprise 42 Members, two-thirds elected from the territory of the Federation of Bosnia and Herzegovina, one-third from the territory of the Serb Republic. Members of the House of Representatives shall be directly elected from their entity in accordance with an election law to be adopted by the Parliamentary Assembly. The first election, however, shall take place in accordance with Annex III to the General Framework Agreement.

The will of the international community to help the Bosnian policy making process is based on the introduction of the High Representative (Annex X, Dayton Accords).[7]

The Dayton agreements gave ample powers to the Office of the High Representative in the Bosnian State building process. During the summit of the Peace Implementation Council (PIC) held in Bonn (December 1997), the High Representative was granted the power to enforce the legislation in Bosnia and Herzegovina and to remove from office any public official or politician who had violated provisions contained within the Dayton Agreement. These new functions of the High Representative are known as the “Bonn Powers.” After the Bonn summit, the international community had taken absolute control over the executive and legislative branches of Bosnia and Herzegovina. However, in recent years the international community has moved in the direction of a more limited use of these powers, in large part due to progress in the democratization process of the country and the greater cooperation of local politicians.

The powers granted to the High Representative have raised much debate in the internationalist doctrine regarding the legitimacy of these awarded powers. Particularly, the doctrine wonders if the hostile occupation regime is applicable to international operation in the Bosnian State building process.[8] Part of the doctrine considers that States and international organizations involved in the Bosnian State building process should act to protect human rights, to promote the self-determination of local people, and to ensure peace and international security. According to this doctrinaire approach, the foreign occupation’s legal regime would not be applicable because the powers of the international community in Bosnia and Herzegovina are ontologically different from hostile occupation.[9]

These argumentations are not entirely convincing. In fact, another part of the doctrine analyzes the preamble of Additional Protocol I of 1977 to the Geneva Conventions of 1949, where the seizure meant is objective and disregards the motivations of the occupying territories. These motivations had humanitarian and military components.[10] In light of these considerations, this principle could also apply to foreign powers participating in state building operations for the reconstruction of the institutions that collapsed following a humanitarian intervention legitimized by jus ad bellum.

Despite such considerations, it should be noted that the intervention of the international community in Bosnia and Herzegovina cannot be defined as an occupation. Through the ratification of the Dayton Accords, the parties agreed the intervention of states and international organizations in the Bosnian State building process.

Preparing for the EU accession

The European Council adopted a decision on the conclusion of the Stabilization and Association Agreement (SAA) with Bosnia and Herzegovina on the April 21st, 2015. The agreement took effect on June 1st, 2015. The SAA established the framework for relations between the European Union and Bosnia and Herzegovina. The agreement established a gradual free trade area between the EU and Bosnia and Herzegovina, identified common political and economic objectives, and encouraged regional cooperation. Bosnia and Herzegovina declared its candidacy to become a EU member on February 15th, 2016. This happened after the European Commission recognized Bosnia and Herzegovina as a potential EU candidate.

Despite the considerable progress in Bosnian democracy and their European integration process, the transition to a democracy is very long and complex. The decentralization of Bosnia and Herzegovina, produced by the Dayton Agreement, remains one of the key challenges for the country. The institutional system based on shared power between different ethnic groups often led to a blockage in the institutions because many political elites have a totally negative view of the opponents and the institutions do not provide incentives to cooperation.

There is also a lack of programmatic and policy unity between central and peripheral institutions. The institutional inefficiency has led to a slowdown in Bosnian democratic process and the EU-Bosnian integration process.

The accession of Bosnia and Herzegovina as EU member could help national institutions improve their own policy objectives to ensure a better development of the country, by promoting inter-ethnic dialogue and economic efficiency of the country.

Giorgia Durante

Master’s degree in Law (LUISS “Guido Carli”)


References and notes

[1] Pirjevec, Jože. Le guerre jugoslave, 1991-1999. Torino: Einaudi, 2001.

[2] Pirjevec, Jože. Serbi, croati, sloveni. Storia di tre nazioni. Bologna: Il Mulino, 2002.

[3] Tešanović, Jasmina. Processo agli Scorpioni. Balcani e crimini di guerra. Paramilitari alla sbarra per il massacro di Srebrenica. Roma: Eretica, 2008.

[4] Shehu, Natasha, and Poda, Zamir. International Criminal Tribunal for the Former Yugoslavia. Bari: Cacucci Editore, 2004.

[5] Weller, Marc, and Wolff, Stefan, eds. International State-Building after Violent Conflict. Bosnia Ten Years after Dayton. London : Routledge, 2008.

[6] See: Article 5 (The Constitution of Bosnia and Herzegovina). www.ccbh.ba/osnovni-akti/ustav/?title=clan-5

[7] See: Article 1 (Annex X, Dayton Agreement). www.ucdp.uu.se/gpdatabase/peace/BoH%2019951121.pdf

[8] Annoni, Alessandra. Loccupazione ostile nel diritto internazionale contemporaneo. Torino: G. Giappichelli, 2012.

[9] Shagra, Daphna. “The UN as an Actor Bound.” International Peacekeeping 5(2), 1998: 64–81.

[10] Annoni, Alessandra. Loccupazione ostile nel diritto internazionale contemporaneo. Torino: G. Giappichelli, 2012.