The Dayton Constitution Stopped the Killing of BiH Citizens, But Not the Killing of the State of BiH

By Sifet Kukuruz, legal expert

Almost 30 years ago, the so-called Dayton Peace Agreement was initialed and signed, which could be argued to have stopped the mass and systematic killing of BiH citizens, but not the killing of the state of BiH.

The Dayton Agreement, as a primary peace agreement, has undoubtedly achieved its basic purpose – it stopped the armed conflict and ensured peace in BiH. This peace, despite numerous challenges, has been maintained for almost three decades.

By achieving this basic goal, the Dayton Agreement has also exhausted its primary purpose; it has simultaneously become a burden and shackles for the citizens and peoples of BiH in peacetime. This fact is not accepted by certain policies in BiH, but also by certain policies within the international community.

The Dayton Agreement and the BiH Constitution, as its integral part, are proving incapable of ensuring a stable, democratic, and functional state of BiH.

Today, it is of fundamental importance how to approach the Constitution which has exhausted its potential, while at the same time preserving peace and building a stable, democratic, and functional state on the foundation of peace?

In understanding the essence and failure of the BiH Constitution, one must never forget the fact that the Dayton Constitution is a kind of gift from international politics, primarily American and European, to the citizens and peoples of BiH.

As a result of pragmatic political thinking, the Dayton Constitution is today proving completely incapable of responding to the challenges that BiH faces in the processes of Euro-Atlantic integration.

The BiH Constitution has become an obstacle to both internal consolidation and broader, international integration. The Dayton Constitution keeps the state of BiH as a "sleeping beauty" far from real life and deprives the citizens and peoples of BiH of the right to a future.

In addition to proving completely inadequate for building a stable and democratic state in conditions of absence of war, an additional problem for the citizens and peoples of BiH is the fact that even those who created and delivered this "gift" to the citizens and peoples of BiH do not want such a Constitution today.

Although they openly invite Bosnia and Herzegovina to join them, the EU and NATO are simultaneously sending a clear message that BiH will not be able to achieve membership with the existing Constitution.

At the same time, the international community, with its inconsistent and often hypocritical policy, continues to produce new thorns around the Dayton Peace Agreement, like a charmed castle where the "sleeping beauty" resides.

Therefore, the message of the international community is clear – BiH with the Dayton Constitution in its unamended text cannot become a member of the EU and NATO, even though it is a Constitution that is the result, besides the policy of the UN, of the policy of these two most important international organizations.

Therefore, it is justified to ask the question – if it is not acceptable for those who created and sponsored the Dayton Constitution to have such a solution today, and especially if the situation that immediately preceded this Constitution is not acceptable to them, how can such a Constitution be acceptable to the citizens and peoples of BiH?

It should not be forgotten that, even if the Dayton Constitution were acceptable to the peoples and citizens of BiH, the real problem would still remain, which is that such a Constitution prevents the state of BiH from becoming a member of the EU and NATO. Such a message from the EU and NATO is completely clear and loud enough.

Contrary to such a clear message, there are still political forces in BiH that persistently advocate for the immutability of the BiH Constitution, and which even insist on the so-called return to the original Dayton. However, it is forgotten that such messages about returning to the original Dayton actually imply a return to the pre-Dayton situation, which is a state of war and denial of international law.

Such forces forget that the purpose of the Dayton Constitution is not, nor can it be, the preservation and coexistence of two mutually exclusive principles, the principle of freedom and human rights, and the principle of force and violence.

At the same time, the potential willingness of such forces to change the Dayton Constitution implies the implementation of constitutional reform "backwards", i.e., a return to wartime positions and achievements. Thus, the return to the "original Dayton" actually proves to be a return to pre-Dayton positions.

Three decades after the Dayton Constitution came into force and its partial application, it is becoming increasingly clear that this Constitution is becoming part of the problem, not part of the solution, and that it is necessary to adopt a new Constitution that, on the one hand, will enable the preservation of what the Dayton Constitution was signed for, and on the other hand, will enable the building of a stable democracy and a functional state of BiH.

It must not be forgotten that the value of peace is not an end in itself. Peace as a fundamental value is a necessary prerequisite for the realization of other values. The value of peace is only a phase in the development of a society that is moving towards full freedom, which is yet to enable the realization of all potentials of a social community.

The phase of peace is not a state that aims to perpetuate the results of crimes and to permanently preserve them by translating them into legal norms. Peace should nullify, not protect and preserve crime, and this is where the "Gordian knot" lies, for the cutting of which, despite numerous rulings by international courts, no one has yet shown enough wisdom, knowledge, and will.

In the event that the continuity of internal and international policy regarding the Dayton Constitution is preserved, there is a real danger that maintaining the existing constitutional project will become a real threat, not only to the development of BiH and the established peace, but also to international stability and security.

If the initial value of the Dayton Constitution, which is peace, is to be preserved, it is necessary to undertake a thorough revision of the Dayton Constitution, in the direction outlined by the Constitution itself – which are European legal standards.

Any reform that would involve remaining with the Dayton Constitution or even strengthening Dayton's "solutions" is actually the preservation of the pre-Dayton situation, because there is no essential difference between the Dayton and pre-Dayton situations. It is the same essence that is only expressed in two different states of aggregation.

Changing the norm of the Dayton Constitution today is possible in the same way as changing the situation on the front line during the war. Unfortunately, both changes are based, first and foremost, on the application of force, which today is only expressed more subtly, primarily through the actions of the High Representative and through more or less visible diplomatic pressures and coercion by those who created and sponsored the Dayton Constitution.

Therefore, it is clear that the main driving force in both the Dayton and pre-Dayton states is force, and this fact best confirms that there are no essential, but only formal differences between these two states.

This fact should be precisely the argument for policies in BiH, as well as the international community, in the interest of their own future, almost 30 years after the signing of the Dayton Peace Agreement, to truly commit to changing their approach to that Agreement, which ensured peace, but not stability, security, and development. Citizens of BiH today, besides peace, also need democratic, economic, and all other development.

Only if such development is ensured and achieved will the Dayton Peace Agreement be recorded as a civilizational act in Bosnian-Herzegovinian, European, and world historiography.