Three Decades After Dayton: Can Constitutional Change Bring Sustainable Peace?

On the 28th of April 2025, Faculty of Law, University of Sarajevo, hosted in collaboration with the Faculty of Law, University of Barcelona, an international conference Constitutionalism and Post-Conflict Societies.[1] My presentation on the topic The International Community in Bosnia and Herzegovina in the Light of Transitional Justice and Constitutional Changes, de lege ferenda was part of the project Constitutions for peace: the role of constitutional changes in promoting coexistence and social reconstruction in societies in transition, awarded by the International Catalan Institute for Peace (ICIP) Research project 2024-25, Spain, Barcelona.

The Constitution of Bosnia and Herzegovina (hereinafter BiH) was part of a peace treaty, i.e. Annex 4 to the General Framework Agreement for Peace in BiH (hereinafter Dayton Peace Agreement/DPA) and state-building process after the armed conflict (1992–1995) with post-conflict mechanisms of power division. It formed a multi-ethnic governance between the constituent peoples (along with Others) and entered into force as part of an international treaty, which was signed with the support of the international community. 

Although transitional constitutionalism enabled the process of state building and cooperation among the three ethnic groups in a post-conflict society, questions remain:

–       have the legal reforms of the last three decades been accepted as a guarantee for the non-repetition of human rights violations in the future and for the restoration of state institutions,

–       is BiH today still a post-conflict society and in transition, and if so, what would be the essential elements for a reconstruction of the society towards sustainable peace through constitutional changes,

–       what will be the role of the international community in BiH in the future?

The International Criminal Tribunal for the former Yugoslavia, which dealt with war crimes that occurred in the Balkans in the 1990s, strengthened the rule of law and was part of the transitional justice process also in BiH. BiH was, after the armed conflict, under the control of different international institutions/international legal mechanisms. One of the international legal mechanisms that was established was the Office of the High Representative. However, the powers of the High Representative (hereinafter HR) as guardian of the DPA and responsible for its implementation do not derive from the Constitution, but from the international community. Also, three out of nine judges of the Constitutional Court of BiH are still appointed from the international community by the President of the European Court of Human Rights (hereinafter ECtHR) after consultation with the Presidency of BiH. These judges must not be citizens of BiH or any neighbouring state.

In 2002, BiH became a member of the Council of Europe. Since all High Contracting Parties must execute the judgments of the ECtHR, several attempts have been made to amend the Constitution, including with the participation of the international community, to ensure its compliance with the Sejdić and Finci case law regarding constitutional discrimination based on ethnicity (race). The international community's obligation and the role in BiH in ensuring stability in the region remains, also through the powers of the HR. However, the constitutional reform will have to be part or the end of the transitional justice process, especially given the ongoing negotiations for EU accession, as BiH was granted EU candidate status in December 2022.

[1] https://www.unsa.ba/en/novosti/international-conference-constitutionalism-and-post-conflict-society-april-28-2025.

Srebrenica Memorial Center