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EU State-Building in Bosnia and Herzegovina: A Problematic Approach
A dissertation submitted to the University of Manchester for the degree of Master of Arts
in the Faculty of Humanities
2014
Irma Durmisevic
School of Social Sciences: Politics
2
Table of Contents
Introduction 7
Chapter 1: The Fundamentals of State-Building 13
Chapter 2: EU Integration and Conditionality 18
2.1: EU Conditionality in Central and Eastern Europe During the 1990’s 23
Chapter 3: The EU’s Approach to State-Building in Bosnia and Herzegovina 28
3.1: The Contentious Role of the Office of the High Representative 29
3.2: The EU Police Mission 32
Chapter 4: The EU’s Approach vs. The Organic Minimalist Approach 42
4.1: Bosnia’s Judicial Reform vs. Iraq’s Judicial Reform 45
Conclusion 51
Bibliography 54
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Word Count: 13,101
Abstract
Since the end of the Bosnian war, the EU has played a major role in the reconstruction
and re-stabilization of Bosnia and Herzegovina. The general approach that the EU has taken to
state-building in Bosnia is one that intertwines EU member state-building with post-conflict
state-building. This study aims to analyze to what extent the EU has been effective in its policy
of state-building in Bosnia and Herzegovina. Effective state-building strengthens state capacity
while also improving the overall social, economic, and political condition of a post-conflict
country. The EU’s promotion of conditionality and ‘good governance’ reforms within post-
conflict Bosnia has often increased the severity of domestic problems.
By using the prospect of EU accession as an incentive for reform, the EU is looking to
utilize its integration process as a state-building mechanism. While EU integration encourages
candidate countries to undergo neo-liberal reforms, it cannot be expected to produce the same
positive effects in unstable and post-conflict countries. The EU’s ‘good governance’ approach to
state reform is not only inherent in accession conditions, but also in the existence of the EU-
authorized Office of the High Representative (OHR). The High Representative’s power to
externally impose policies onto the Bosnian state has been symbolic of the EU’s problematic
approach to leading Bosnia toward strengthened statehood.
The EU could benefit from taking an organic minimalist approach to state-building in
Bosnia. This approach allows for domestic institutions to maintain their sovereignty and for
domestic actors to play a larger role in state-building. An organic minimalist approach would
also encourage better coordination between the EU and Bosnia’s domestic political actors.
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Nonetheless, Bosnia cannot adequately move forward toward becoming a strong and sovereign
state unless the EU modifies its approach to state-building within the country.
Declaration
No portion of the work referred to in the dissertation has been submitted in support of an
application for another degree or qualification of this or any other university or other institute of
learning.
5
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Acknowledgements
I would like to thank my supervisor, Dr. Gabriel Siles-Brügge, for his support and guidance
throughout the writing process of this dissertation.
I would also like to thank my mother and father, who remain to this day the two bravest people I
have ever known.
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Introduction
On March 1, 1992, Bosnia and Herzegovina declared independence from the Socialist
Federal Republic of Yugoslavia. In response to this declaration of sovereignty, Serbian troops
quickly began taking Bosnian cities by siege and waging an ethnic war that would last over three
years. With the signing of the Dayton Peace Accords in December 1995, an end was finally
brought to the brutal ethnic conflict. Yet, for Bosnia, it was only the beginning of a long process
of post-conflict reconstruction and state rehabilitation. Tensions among the three main ethnic
groups (Bosniaks, Croats, and Serbs) continue to run high and are supplemented by nationalist
rhetoric at the state level. Moreover, the extensive involvement of international actors in the
reconstruction of the Bosnian state has had many negative repercussions.
While the Dayton Peace Accords spared Bosnia from prolonged conflict, they
simultaneously created a complex, decentralized, multi-layered and mainly ethno-political state
(Muehlmann 2008, p.2). Bosnia’s post-Dayton state structure incorporates the existence of two
entities: the Federation of Bosnia and Herzegovina (comprised mostly of Bosniaks and Croats)
and the Republika Srpska (comprised mostly of Serbs). Dayton also instilled a tripartite
presidency, which rotates between a Serb, a Croat, and a Bosniak president every eight months
(Bose 2002, p.65). The constitutional provisions outlined within the DPA reinforce ethnic
divisions and present a state structure that is heavily based on appeasing the demands of three
main ethnic parties, rather than serving the people.
Post-Dayton Bosnia lacks the characteristics of traditional Westphalian sovereignty that
are typically associated with modern states. Westphalian sovereignty implies that a “sovereign
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state is an independent, territorially defined, equal and free agent of state and international acts”
(Nohlen 2001, p.448). The extent to which Bosnia is independent can be contested, since a
majority of its political actions are controlled by external actors. In regards to territory, entity
lines and borders are still unsettled (Demetropoulou 2002, p.90). Ethno-nationalist rhetoric, a
self-interested polity, and international constraints on political authority certainly do not make
Bosnia an equal and free agent of its own international politics. The country is in need of
effective state-building to push it toward achieving strong state capacity and uncontested
statehood.
State-building theory centers on enhancing the state capacity and sovereignty of weak or
collapsed states (Fukuyama 2004, pp.51-52). In state-building missions, international actors offer
resources, aid, and assistance to weak states, in order to help them develop into strong states.
Yet, state-building missions have the tendency to get too involved and too regulatory when it
comes to governing a weak state. Many modern state-building missions utilize ‘good
governance’ approach, which tends to neglect the domestic political realm of the countries and
focus on administrative reforms (Chandler 2005, p.311). The ‘good governance’ approach has
been practiced by the EU within its state-building mission in Bosnia and has resulted in a lack of
development with Bosnia’s state capacity.
According to an OECD report on state-building within weak states, “states are fragile
when state structures lack political will and/or capacity to provide the basic functions needed for
poverty reduction, development and to safeguard the security and human rights of their
populations” (Massing et al. 2008, p.16). By this definition and through observations made by
many international organizations, Bosnia falls under the category of a weak state. The country’s
political and economic systems are currently not stable enough to warrant an exit by the
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international community. Yet, as this study will discuss, the international actors invested in
strengthening the country’s political capacity are also constraining its sovereignty and
legitimacy.
After September 11, 2001, it was brought to the attention of the international community
that weak states could pose a serious threat to global security. It was realized that fragile states
could serve as breeding grounds for terrorist networks and criminal organizations (Krasner 2004,
p.86). Aside from humanitarian and political aims, modern state-building interventions are
driven to prevent the conflicts plaguing weak states from expanding into the global realm.
International actors in Bosnia are aware of the possible consequences that would follow if Bosnia
becomes a failed state. Still, their ambiguous strategies for state-building in the country have not
succeeded in eradicating this risk.
The main international actor that has been in charge of state-building operations in
Bosnia since the early 2000’s has been the EU (Tolksdorf 2011, p.4). The EU’s primary
approach to state-building in Bosnia has been one of member-state building and an emphasis on
‘good governance’ reforms. At both the European Council session at Feira in 2000 and the
Western Balkans summit in Thessaloniki in 2003, the EU has expressed its desire to see the
Western Balkan countries become EU member states (Juncos 2012, p.58). Yet, the concept of
using an EU integration approach as a state-building mechanism in a post-conflict country is
inherently flawed.
There exists a complex and non-linear relation between European integration and
stateness. On the one hand, integration requires from states to renounce to absolute
competence and pool some sectoral sovereignty in order to achieve common solutions.
On the other hand, the EU requires from them high capacity requirements, in order to
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transpose EU law into domestic legislation, and to take part in common decision making
(Denti 2014, p.25).
Post-conflict states are in need of assistance from external actors that will emphasize
sovereignty-building, not sovereignty-constraining. The EU’s involvement in Bosnia has created
a state that is extremely dependent on external actors to carry out significant functions.
When determining to what extent the EU’s state-building approach to Bosnia has been
effective, this study utilizes a fairly comprehensive definition of the word ‘effective’. Since the
EU’s involvement in Bosnia from the early 1990’s to the present day, one would expect Bosnia’s
political, economic, and social conditions to be better off today than they were at the end of the
war. Unfortunately, this has not been the case. Over the past decade, the country has been in the
midst of political and economic stagnation. While the EU is not solely to blame for all of the
country’s issues, its heavy involvement in Bosnia’s political affairs has served as an obstacle for
progress.
This study also looks to basic state-building principles to judge the effectiveness of the
EU’s state-building policy in Bosnia. Fukuyama describes effective state-building as “the
creation of self sustaining state capacity that can survive once foreign advice and support are
withdrawn” (2004, p.51). If the EU’s state-building efforts in Bosnia have truly been effective,
one would expect Bosnia’s state institutions to be stronger and more efficient today than they
were in the aftermath of the war. As the anti-government protests of spring 2014 have shown, the
Bosnian state has made insufficient progress since the end of the war. With a weak and
ethnically divided central government leading by example, the main institutions of Bosnian
society remain underdeveloped and unorganized
18 years after the signing of Dayton, Bosnia remains a de facto international protectorate
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(Venneri 2010, p.77). The plethora of international organizations involved in the country’s
social, political, and economic spheres only further complicates the country’s quest for
autonomy. “The imposition of an international agenda of capacity building and good governance
appears internationally as a domestic question and appears domestically as an external,
international matter. Where the sovereign state clearly demarcates lines of policy accountability,
the state without sovereignty blurs them” (Chandler 2007, p.606). While many of the NGOs and
international organizations working within Bosnia have sped up the country’s post-conflict
reconstruction, many of them have also impeded its progress toward becoming an autonomous
state.
The first chapter of this study will define state-building and the implications of modern
state-building for weak states. When focusing on state-building, attention must be paid to state
sovereignty and how it is maintained during state-building operations. As has been observed
many times in the past, international intervention in fragile or post-conflict states has frequently
led to an undermining of domestic sovereignty within those states (Fukuyama 2005, p.85). This
chapter will also outline what this paper considers as ‘effective’ state-building in the case of
Bosnia.
In the second chapter of this study, the EU’s integration policy toward candidate
countries will be examined. The EU’s application of a conditionality approach to molding
candidate countries into EU-compatible states has been assessed in a wide array of EU
integration literature. This chapter will explicate what EU conditionality entails and the costs and
benefits that candidate countries incur on their journey toward accession. The EU’s integration
policy with the Central and Eastern European countries during the 1990’s will also be examined
within this chapter.
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The third chapter of this study will analyze the effects of the EU’s conditionality
approach to state-building in Bosnia. The EU has laid out plenty of goals for the post-conflict
country, but the feasibility of these goals and how beneficial they are to the country remains
questionable. This chapter will examine the role of the controversial Office of the High
Representative. An in-depth look into the effects of EU conditionality will also be provided
through the example of the EU’s police restructuring in Bosnia.
Lastly, the fourth chapter of this study will compare the EU’s conditionality approach
with an organic minimalist approach to state-building. As a category of state-building theory,
organic minimalism emphasizes the importance of allowing domestic institutions to maintain
their sovereignty while coordinating with them to improve their capacity (Stigall 2007, pp.22-
25). This chapter will observe the effects of organic minimalism on judicial reform in Iraq and
compare this experience with the EU’s judicial reform in Bosnia. A more hands-off approach to
state-building in Bosnia could prove to be extremely beneficial for the country.
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Chapter 1: The Fundamentals of State-Building
For almost two decades, external state-building operations have been taking place in
Bosnia. To understand the implications and the impact of state-building missions on Bosnia, it is
first necessary to understand what the concept of external state-building signifies. According to
Francis Fukuyama, “state building is one of the most important issues for the world community
because weak or failed states are the source of many of the world’s most serious problems, from
poverty to AIDS to drugs to terrorism” (2004, p.ix). Thus, one of the main goals of modern-day
state-building is to prevent the collapse of states and the spread of their problems into the global
realm.
State-building operations typically take place within fragile states that have become
weakened either as a result of conflict or because of political unrest. A weak state may be
defined as: “A state that does not have capacities to penetrate society, regulate social
relationships, extract resources, and appropriate or use resources in determined ways” (Migdal
1988, p.4). Weak states tend to lack the state capacity and infrastructural power for security and
welfare provision, and they are also not adaptive to the various forms of international
competition (Hehir and Robinson 2007, p.4). Many of the states that emerged during the
decolonization period that followed World War II and after the end of the Cold War quickly
turned into weak states because of their lack of developed infrastructure and institutions.
Hehir and Robinson argue that it is difficult to distinguish between what signifies a weak
state and what is a failed state. According to both scholars, a weak state can quickly lapse into a
failed state, and a failed state can turn into a weak state. “The difference between a weak and a
failed state can be eroded by time; the developmental implications of long-term ‘controlled’
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predation in a weak state can be as severe as the short-term developmental implications of
predation in a failed state” (2007, p.6). Essentially, it is just as necessary to intervene in a weak
state as it is in a failed state. Both types of states can pose a huge security threat to global society
and thereby require external assistance in order to successfully redevelop.
In their efforts to reform weak and failed states, state-building operations emphasize the
strengthening of state sovereignty. Krasner defines sovereignty as being composed of three main
components: domestic sovereignty, Westphalian/Vattelian sovereignty, and international legal
sovereignty. Domestic sovereignty refers to the ability of domestic governance structures to
“control activities within a state’s boundaries” (Krasner 2004, p.88). Westphalian/Vatellian
sovereignty refers to political autonomy and being free from external intervention within the
internal matters of a state. Lastly, “the basic rule of international legal sovereignty is to recognize
juridically independent territorial entities. These entities then have the right to freely decide
which agreements or treaties they will enter into” (2004, pp.87-88). Krasner notes that
Westphalian/Vatellian sovereignty is most often violated, as has been observed in the case of
Bosnia.
Although their goal is to enhance the sovereignty of weak and failed states, state-building
operations often end up undermining these states’ autonomies. David Chandler argues that
contemporary state-building operations place too much emphasis on the regulatory power of
international institutions, while undermining the ability of domestic political bodies to make
decisions. According to Chandler, “This privileging of governance over ‘government’ is based
on the assumption that the political process is a product of state policies rather than constitutive
of them” (Hehir and Robinson 2007, p.71). With external actors’ focus on enforcing good
governance rather than encouraging the domestic political process, democracy and autonomy end
15
up being seen as an “end goal, rather than the crucial aspects of the process of state-building
itself” (2007, pp.71-72).
Numerous international relations scholars have argued that the ‘good governance’
approach to re-building states tends to be problematic. Samuel Huntington argues that, in order
to achieve state stability, a legitimate domestic government and accountable politicians need to
be established before anything else (Hehir and Robinson 2007, p.72). External actors are quick to
bypass the political realm and take governance into their own hands, as the Office of the High
Representative (OHR) in Bosnia has done repeatedly. For Huntington, government in the form of
isolated “cliques” cannot produce the stability that democratic political institutions on the
domestic front are capable of producing.
International actors’ insistence on accomplishing democratic reforms before the
establishment of an accountable and popularly-elected political system is counter-productive to
the aims of state-building. What the ‘good governance’ approach ends up accomplishing is
“reducing the political process to the management of policy ‘outputs’ rather than one of
facilitating policy ‘inputs’. External state-building has been more a process of external regulation
and international control rather than one of capacity building” (Hehir and Robinson 2007, p.76).
With an approach that bypasses domestic political institutions, the state’s connection with
society is ignored, rather than enhanced. Instead of capacity-building in weak countries, modern
state-building missions end up becoming centers of external regulation (2007, pp.76-78).
A number of factors constitute a successful state-building operation. Fukuyama notes the
importance of having a broad strategy, “along with the mechanisms for integrating the efforts of
various agencies and actors” (2006, p.88). Secondly, there needs to be a clear structure of
authority and the system of command and control between civil and military groups needs to be
16
clearly outlined before the start of the operation. It is also essential to foster domestic and
international public support and maintain this support throughout the duration of the operation
(2006, p.89).
Among the requirements for successful state-building, the ability to adapt to the changing
situation on the ground is considered highly essential. Fukuyama stresses that military units are
not the only ones who need to be adapted to the nature of their missions. “Once the operation is
underway, senior decision-makers must sustain policy oversight and continually reassess the
mission to make sure that its execution remains consistent with its objectives and strategy”
(2006, pp.88-89). The ability to quickly adapt to the changing political and social climate of the
weak state enables the international intervener to respond appropriately to the state’s changing
needs. Thus, state-building actors need to be flexible and open-minded when implementing
reforms.
Last on Fukuyama’s list of requirements for successful state-building is the need for a
thoroughly planned-out shift of responsibility from the international actors to the domestic ones.
This process of guiding a state away from dependence on foreign assistance can often become
extremely complicated. “It is seldom the case that local institutions are actually strong enough to
do all of the things that they are intended to do. Weaning them from outside support at times
means that a particular governmental function simply is not performed” (2006, p.7). Not only are
domestic actors often hesitant to take over responsibility from external actors, but external actors
are also susceptible to becoming too accustomed to being in charge.
International actors tend to exercise too much regulation over the states whose capacities
they are trying to strengthen. Excessive external regulation can cause many states to become too
dependent on external actors for particular state functions, since domestic political actors were
17
not enabled to oversee those functions themselves. “The international community…comes so
richly endowed and full of capabilities that it tends to crowd out rather than complement the
extremely weak state capacities of the targeted countries. This means that while governance
functions are performed, indigenous capacity does not increase” (Fukuyama 2004, p.139). The
‘good governance’ approach only encourages excessive external regulation, with external actors
ignoring the political realm to submit their own policies within the legal, social, and
administrative realms (Chandler 2005, p.311).
In a sense, the EU has fallen into the common state-building trap of overregulation with
its involvement in Bosnia. As an external actor attempting to strengthen the weak state’s
capacity, the EU’s member-state building approach to state-building has often times neglected or
weakened the state’s capacity. As Chandler notes, post-conflict states are in desperate need of
state-building that engages with the domestic society and shares the same goals with it. “What
they [post-conflict states] receive from EU state-builders is external regulation which has, in
effect, prevented the building of genuine state institutions which can engage with and represent
social interests” (2007, p.606). The EU’s approach to state-building in Bosnia cannot expect to
produce significant progress when it so often holds the state back from progress.
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Chapter 2: EU Integration and Conditionality
Since its formation in 1957, the EU has grown from an organization of six countries to a
union of 28 member states. Essential to the development of the EU has been its system of
integrating new countries into its organization. EU enlargement is a “formal intergovernmental
process between the governments of applicant countries and the EU’s Council of Ministers, in
consultation with the European Commission and European Parliament” (Glenn 2004, p.4). Many
countries are motivated to join the EU because of the numerous benefits that membership yields
- such as trade, finance, and border liberalization. The process of accepting new countries into
the union can take decades to complete, as commitment is required from both the EU and the
candidate countries. Nonetheless, a desire to join the EU remains prevalent among many
European countries.
EU enlargement policy requires candidate countries to reform their political, social, and
economic institutions so that they may become EU compatible. Among the various mechanisms
the EU uses to assist candidate countries on their path to accession, conditionality has been its
key tool. “Conditionality is seen as a gatekeeping mechanism embodying clearly identifiable and
generally understood norms, rules and institutional configurations that are applied consistently
with some continuity over time to regulate the entry of new members” (Schimmelfennig and
Sedelmeier 2005, p.19). EU conditionality has often been labeled as a ‘carrot and stick’ approach
to integration. The incentive of attaining EU membership motivates countries to adopt European
policies. The EU rewards countries that successfully download EU policies with financial and
technical assistance (Bechev 2006, p.32). Yet, when candidate countries fail to comply with EU
expectations, they are punished (i.e. with sanctions or visa regulations).
While the main incentive for candidate countries to comply with EU accession conditions
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is the prospect of membership, this does not imply that adopting the European model is a simple
task for these countries. Accession conditions may sound achievable on paper, but satisfying the
conditions in reality can turn into a long and complex process. Candidate countries face a higher
pressure to converge with certain EU institutional models than existing member states (Grabbe
2001, p.1014). Candidate countries also face shorter time spans to fulfill conditions than the ones
the existing member states faced prior to their accession. Despite the pressures of adapting
European policies, candidate countries continue to strive for accession.
EU conditionality is essentially a process of exporting Europeanization to candidate
countries. Countries cannot expect to join the EU without first reforming their institutional
frameworks into EU-compatible structures. Featherstone and Radaelli define Europeanization as:
Processes of (a) construction (b) diffusion and (c) institutionalization of formal and
informal rules, procedures, policy paradigms, styles, ‘ways of doing things’ and shared
beliefs and norms which are first defined and consolidated in the making of EU decisions
and then incorporated in the logic of domestic discourse, identities, political structures
and public policies (2003, p.30).
To assist the candidate countries in their adoption of EU rules and policies, the EU sends
representatives and advisors to coordinate with the governmental elites of candidate countries
(Papadimitriou and Phinnemore 2004, p.2). This coordination typically requires the candidate
countries to have strengthened central government – one that may oversee the development of
sub-regional EU governance institutions (Grabbe 2002, pp.17-19). Although candidate countries
may incur unfavorable domestic costs while attempting to Europeanize their institutions, they are
aware that the path to EU accession often requires drastic reform.
While Europeanization centers on the partnership between the EU and candidate
20
countries’ political elites, the relationship is mainly an asymmetrical one. “The candidates cannot
‘upload’ their own preferences into those European-level policies. They are only consumers, not
producers, of the outcomes of the EU’s policy-making processes. That means that they cannot
object if an EU policy fits very badly with their domestic structures or policies” (Grabbe 2002,
p.9). This unbalanced partnership leaves candidate countries without much room for negotiation,
when it comes to implementing EU policies. In order to present themselves as worthy potential
members, the countries must implement policies which mimic the EU’s rules as closely as
possible.
The relationship between the EU and candidate countries is mainly top-down for an
obvious reason. The political and economic models in core member states are seen as
“normatively ‘superior’ and readily transferable to displace ‘inferior models’ in candidate
countries” (Hughes et al. 2004, p.13). Thus, candidate countries’ ability to quickly converge their
values and norms with those of the EU is seen as an indicator of how committed they are to the
EU. The EU also creates asymmetrical relations among domestic actors within candidate
countries. “The accession process provides incentives for the creation of new regional bodies
while consistently excluding sub-state elites from processes of sub-state reform” (Grabbe 2002,
p.19). The EU often leaves the responsibility for the creation these regional bodies with the
national political elites of candidate countries, thereby excluding local politicians from a
majority of the Europeanization process.
Candidate countries incur their own costs while attempting to shape their domestic
policies to fit the EU’s requirements. Countries are less eager to adopt EU policies if the
domestic costs outweigh the benefits of policy convergence. “Generally, these costs increase the
more that EU conditions negatively affect the security and integrity of the state, the
21
government’s domestic power base, and its core political practices of power preservation”
(Schimmelfennig and Sedelmeier 2005, p.29). Yet, as has been observed with the integration of
the Central and Eastern European countries, membership remains a strong incentive that usually
overrides these concerns. Domestic institutions usually have the power to offset or lower these
costs, thereby easing the process of policy convergence (2005, p.32).
While EU integration policy is constantly undergoing development, certain methods for
carrying out EU conditionality have remained fundamental. There are three main models that the
EU utilizes when molding candidate countries into EU-compatible states. The external incentives
model, the lesson-drawing model and the social learning model outline the EU’s broad approach
to Europeanization (Schimmelfennig and Sedelmeier 2005, p.10). These models exemplify that,
while EU integration is based on the diffusion of democratic norms and principles, it is also a
process of bargaining and risk analysis.
The external incentives model focuses on the bargaining process that occurs between the
EU and candidate countries. With this model, actors are at an advantage if they are the ones
benefitting more from an agreement and if they hold more information (Schimmelfennig and
Sedelmeier 2005, pp.10-11). The actor who has more information is able to control the outcome,
while “those actors that are least in need of a specific agreement are best able to threaten the
other with noncooperation and thereby force them to make concessions” (2005, p.10). The EU
tends to have the upper hand in accession negotiations because it is usually able to push
candidate countries to Europeanize their institutional framework. Yet, if the domestic costs are
too high, candidate countries can threaten noncompliance and slow down the accession process
(2005, p.12).
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The lesson-drawing model focuses on how domestic actors react to EU policies.
“Policymakers review policies and rules in operation elsewhere and make a prospective
evaluation of their transferability, that is, whether they could also operate effectively in the
domestic context” (Rose 1991, pp.23-24). With this model, domestic political actors in candidate
countries push toward adopting EU rules because they are dissatisfied with particular domestic
policies and norms. The lesson-drawing model shows that the amount of pressure the EU needs
to apply to candidate countries varies with different policy areas.
The social learning model shares similarities with the external incentives model, since
bargaining power plays a crucial role in both. With the social learning model, “whether a
nonmember state adopts EU rules depends on the degree to which it regards EU rules and its
demands for rule adoption as appropriate in terms of the collective identity, values, and norms”
(Schimmelfennig et al. 2003, pp.83-90). There are two different methods to persuading candidate
countries’ governments to adopt EU rules. The EU may take action into its own hands and
attempt to persuade the governments that the EU rules are appropriate for them. Another method
of persuasion involves the social groups and organizations of candidate countries taking charge
and lobbying their governments for EU rule adoption (Schimmelfennig and Sedelmeier 2005,
p.18). The EU collaborates with numerous domestic actors in order to export EU social norms
into a candidate country.
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2.1: EU Conditionality in Central and Eastern Europe During the 1990’s
After the dissolution of the Soviet Union, the EU played a significant role in assisting the
Central and Eastern European countries in their post-communist transition. The EU had set up
the PHARE program in 1989 to assist Poland and Hungary in the reconstruction of their
economies (Bailey and De Propris 2004, pp.78-79). The EU utilized the PHARE program to
provide direct grants to the CEECs to support their transition into market economies and
democratized states. “Assistance provided included elimination of trade barriers and export
promotion for CEE; the Commission also coordinated macroeconomic assistance from other
institutions, including medium-term financial assistance for currency stabilization and balance of
payments assistance, and also debt relief” (Grabbe 2006, p.8). What initially began as trade
associations between the EU and the CEECs soon evolved into membership negotiations, with
the CEECs expressing their desire to join the EU.
The criteria for becoming a member state of the EU were established at the June 1993
European Council in Copenhagen. The Copenhagen Criteria list the following requirements for
countries wishing to join the EU: “(1) a functioning market economy; (2) stable institutions
guaranteeing democracy, the rule of law, human rights, and respect for and protection of
minorities, and market economy, and (3) the ability of implementing the acquis communautaire”
(Boerzel 2009, p.14). The criteria intended to “minimize the risk of new entrants becoming
politically unstable and economically burdensome to the existing EU” (Grabbe 2006, p.10).
While many of the CEECs were enthusiastic about joining the EU, the existing member states
were wary of allowing unstable and developing countries into the Union.
EU integration policy is heavily based on candidate countries’ ability to adopt the acquis
communautaire. The acquis communautaire is the “accumulated legislation, legal acts, and court
24
decisions which constitute the body of European Union law” (EEAS 2014). A senior European
Commission official once noted that no member state has implemented more than 80% of the
acquis (Grabbe 2006, p.33). The 35 chapters of the acquis cover a wide range of issues, “from
the free movement of goods to culture and audio-visual policy, each of which must be opened,
negotiated and closed by each applicant country before membership can proceed” (Glenn 2004,
p.5). With over 80,000 pages of legislation, many areas of the acquis are fairly vague and open to
interpretation. The ambiguity of the acquis is reflective of the overall ambiguity of the EU’s
accession policy, since it is frequently undergoing improvements.
The 1990’s served as a period for the EU to develop and validate its integration policy.
Further conditions for joining the EU were laid out at the Essen European Council in December
1994. Here, the Pre-Accession Strategy, which dealt mainly with liberalizing the candidate
countries’ markets, was introduced (Grabbe 2006, p.11). In 1997, the Commission published its
Opinions on candidate countries’ progress toward accession. The Opinions not only judged
specific candidate countries’ preparedness for membership up until that point, but also concluded
whether those countries would be able to satisfy the conditions for accession by the time
negotiations were over (2006, p.13). A year after the publication of the Commission’s Opinions,
the EU Accession Partnerships would be presented to the candidate countries, establishing more
specific conditions for accession.
The Accession Partnerships established in 1998 were documents containing the EU’s
specific demands for the candidate countries, in regards to accession. Conditionality on financial
assistance and on accession requirements became stricter and timetables were established for
achieving particular policy reforms (Grabbe 2006, p.15). Whereas the distribution of funds from
the PHARE program used to be based on the demands of the particular candidate country, it
25
would now be based on the accession objectives laid out in the Accession Partnerships. With the
Accession Partnerships, EU aid policy had begun to be based upon candidate countries’
fulfillment of accession obligations, rather than their political and economic needs.
With the introduction of the Accession Partnerships, a substantial change had been made
to the EU’s relationship with the candidate countries. The EU’s influence over the CEECs had
also grown along with its accession agenda. “The political criteria took the EU into areas such as
judicial reform and prison conditions; the economic criteria was interpreted to include areas such
as reform of pension, taxation and social security systems and corporate governance…” (Grabbe
2006, p.23). In less than a decade, the EU had expanded the areas in which candidate countries
had to undergo reforms. This increase in EU involvement would affect the EU’s future
integration policy in the Western Balkans.
Since EU integration policy was undergoing consistent development and renovation
during the 1990’s, the EU’s requirements for accession were often times unclear. The large
number of EU actors involved in assisting candidate countries further contributed to a lack of
understanding between the EU and the CEECs. CEEC governments had to interact with “pre-
accession advisors from national administrations, Commission officials, national experts from
the Council, and civil servants and politicians from individual member-states, plus a range of
joint parliamentary committees, and representatives from the European Parliament and the
Economic and Social Committee” (Grabbe 2006, p.33). With a range of different EU actors
giving different advice and guidance, it was no wonder that the CEECs often felt uncertain about
what the EU expected of them.
Although EU integration is heavily driven and controlled by the EU itself, success in
reaching accession is strongly affected by the domestic political actors in candidate countries.
26
Since the central government of a candidate country is in charge of implementing EU rules, “the
effectiveness of conditionality then depends on the preferences of the government and of other
‘veto players,’ defined as ‘actors whose agreement is necessary for a change in the status quo’”
(Schimmelfennig and Sedelmeier 2005, p.16). As was seen within many of the CEECs, the rise
of nationalist politicians or anti-EU rhetoric can slow down the speed and success of EU policy
implementation. Hence, the cooperation of domestic political actors is critical for EU accession
to be achieved.
As of the early 2000’s, conditions for accession have become stricter. New pre-accession
mechanisms have been introduced, including “opening, intermediary, and closing benchmarks;
safeguard clauses to extend monitoring; more routine procedures to suspend negotiations; and
the requirement for countries to demonstrate a solid record in reforms” (Prifti 2013, p.22).
Enlargement fatigue has also been prevalent within the EU since the accession of ten new
member states in 2004 (Renner and Trauner 2009, pp.449-450). This explains why CEECs such
as Bulgaria and Romania faced increased pressure and monitoring from the EU before finally
being given membership in 2007. The decision to tighten conditionality is reflective of the
existing EU member states’ wariness toward admitting countries with reputations for corruption
and unstable governments.
Among the current countries on the road to membership are the post-conflict countries of
the Western Balkans. In this region, the EU has assisted in both member-state building and post-
conflict stabilization. Yet, many EU scholars have criticized the EU’s usage of conditionality in
the Balkans as problematic, because many of the countries have contested statehood and weak
state institutions. “Introducing political and economic reforms does not only require money,
staff, expertise and information. It also creates political costs for governments, which risk losing
27
pubic support, or political power altogether, over imposing costly and unpopular changes”
(Boerzel 2011, p.9). The issue of compromising domestic policies with EU policies has been
prevalent in the case of Bosnia.
EU integration has not had the same success in Bosnia and the Western Balkans as it has
with the CEECs. “The misfit with EU demands for political and economic reforms is much
greater [in the Western Balkans] than in case of the CEE. Moreover, weak state capacities and
ethnic conflicts have reduced both their willingness and capacity to implement the acquis
communautaire” (Boerzel 2011, p.1). Since the Western Balkans is a region of numerous post-
conflict states, EU conditionality produces inconsistent and often weak effects. Moreover, a key
difference between EU integration in the CEECs and EU integration in Bosnia is that the former
did not include state-building. This fact alone implies that the EU needs to utilize a more
efficient mechanism than conditionality to guide Bosnia toward EU accession.
Although opinions among member states may vary, EU integration remains an important
goal for the EU and for candidate countries. By utilizing the prospect of membership as an
incentive for candidate countries to adopt EU policies, the EU is able to mold countries into
capable member states. Conditionality continues to be the EU’s prominent tool when
coordinating with the Western Balkan countries, whose problems greatly differ from the
problems faced by the CEECs in the 90’s. While conditionality is essential to creating member
states, its effectiveness as a mechanism for state-building remains questionable.
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Chapter 3: The EU’s Approach to State-Building in Bosnia and Herzegovina
“This is the hour of Europe,” spoke the Foreign Affairs Minister of Luxembourg, Jacques
Poos, at the EU Council in July 1991 (Riding 1991, p.1). Poos’ phrase would eventually become
a symbol of the EU’s embarrassing performance as an international mediator during the Bosnian
war. Yet, the EU was determined to redeem itself with its involvement in postwar reconstruction
and development in Bosnia. With the takeover of the police mission from the UN in 2002 and the
management of the Office of the High Representative (OHR), the EU has been the main
international organization overseeing state-building operations in Bosnia for over a decade. Still,
the EU’s method of pursuing ‘good governance’ reforms through the OHR and using
conditionality as an incentive for state-building have often produced unfavorable results.
Unlike its relations with the CEECs in the 1990’s, the EU has intertwined post-conflict
stabilization with the process of member-state building in Bosnia. The Stabilization and
Association Agreement (SAA) allows the Western Balkan countries to formally associate with
the EU. The benefits of entering an SAA with the EU include “asymmetric trade liberalization,
economic and financial assistance as well as budgetary and balance of payments support,
assistance for democratization and civil society, humanitarian aid for refugees and returnees,
cooperation in justice and home affairs, and the development of a political dialogue”
(Anastasakis and Bechev 2003, p.7). State-building reforms in Bosnia, such as the restructuring
of the police, have been linked as conditions for signing the SAA. With EU conditionality and
the questionable impositions of the OHR, the EU’s involvement in Bosnia has been extensive.
Yet, whether the EU’s role has been effective is a question that remains to be answered.
29
3.1: The Contentious Role of the Office of the High Representative
One of the most controversial EU-endorsed state-building operations in Bosnia is the
Office of the High Representative. The role of the OHR was outlined in Annex 10 of the Dayton
Agreement and authorized by the Peace Implementation Council (Tolksdorf 2011, p.5). The PIC
is composed of 55 countries and international organizations and is in charge of overseeing the
implementation of the Dayton Agreement in Bosnia. The main members of the PIC Steering
Committee include EU member states, the EU Presidency, and the European Commission (2011,
pp.5-6). Hence, the PIC cannot implement decisions without the approval of the EU.
The High Representative initially played the role of a diplomat who would help settle
disputes. In response to Bosnia’s growing instability at the time, the weak powers of the OHR
ended up being drastically expanded by the PIC in December 1997. These “Bonn Powers” would
carry on igniting a series of disputes between domestic and international actors within Bosnia for
the next decade. The Bonn Powers expand the authority of the High Representative to such an
extent that often times the sovereignty of the Bosnian state is ignored. The Powers enable the
High Representative to “directly impose legislation, giving international officials both executive
and legislative control over the formally independent state. The OHR was now mandated to
enact ‘interim measures’ against the wishes of elected state, entity, cantonal and municipal
elected bodies” (Chandler 2006, p.27). The Powers also enable the High Representative to fire
public officials from office if they are believed to be hindering the implementation of Dayton.
The power to dismiss public officials was not taken lightly by the High Representative.
Carlos Westendorp, who served as High Representative from 1997 to 1999, dismissed 26 public
officials from various governmental bodies in 1999 alone (Tansey 2009, p.164). One of these
officials was the nationalist president of Republika Srpska, Nikola Poplasen, who was “removed
30
from office after blocking the formation of a government in the RS National Assembly and
moving to dismiss the sitting” (2009, pp.164-165). The other officials were removed due to their
pursuit of policies that were anti-Dayton and counter to peace.
Aside from dismissals, the frequency of decisions passed by the High Representative has
increased with every new appointee to the position. Westendorp would pass about four
impositions a month, while Petritsch passed an average of 12 impositions a month. Petritsch
would be topped by Paddy Ashdown, who passed 14 decisions per month (Knaus and Martin
2003, p.68). The Bonn powers were used extensively with the development of significant
legislation. “The original rationale for the imposition of core legislation was the inability or
unwillingness of governments dominated by national parties to get such bills through
parliament” (2003, p.67). Yet, as the general elections of 2001 would show, the High
Representative has used his legislative powers even the political situation has shown that they are
not needed.
The general elections of 2001 were won by the Alliance for Change, which is a coalition
of non-nationalist parties (Knaus and Martin 2003, p.67). The Alliance had received support
from significant international actors, such as the OSCE and US Ambassador Richard Holbrooke.
Many were hopeful that the new government would be given more leeway by the OHR to pass
through legislation. Yet, only a day after the election, High Representative Wolfgang Petritsch
enforced ten pieces of legislation and handed the newly elected officials an array of bills that
needed to be passed into law within 100 days (2003, pp.67-68). Knaus and Martin aptly
commented on Petritsch’s questionable post-election maneuver. “The OHR, having just
witnessed the success of its attempts to aid in the defeat of the obstructive “national” parties,
reacted to their removal not by praising democracy but by handing out a stack of peremptory
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decrees” (2003, pp.67-68). The results of the 2001 election made it clear that the OHR and the
Bonn powers would not loosen their grip on Bosnia’s political realm.
The existence of the High Representative exemplifies the EU’s role as an imposing
external regulator in Bosnia. While the OHR is committed to assisting Bosnia in its fulfillment of
EU conditions for membership, it has simultaneously been imposing ‘good governance’ reforms
onto the country. As the sub-chapter on EU police reform will point out, the High Representative
can play a highly influential role in Bosnia’s journey toward EU accession. Yet, like many other
aspects of the EU’s state-building approach, the OHR’s impositions can often produce more
harm than good on the domestic front.
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3.2: The EU Police Mission
A prominent example of the EU’s conditionality approach to state-building in Bosnia is
the EU Police Mission (EUPM). The EUPM’s “core mandate was to initially establish
sustainable policing arrangements under BiH ownership in accordance with best European and
international practice” (Flessenkemper and Helly 2013, p.27). The police mission was a
condition of the Stabilization and Association Agreement, which Bosnia would not be able to
sign until it achieved the desired reforms within its police sector. What the High Representative
and EU officials working within EUPM hoped to see by the end of the mission was the
development of a centralized, synchronized and depoliticized police sector in Bosnia (2013,
pp.37-39). Bringing about drastic reforms to Bosnia’s 16 policing bodies would prove to be a
long and complicated process.
Lord Paddy Ashdown, who held the position of High Representative from May 2002 to
January 2006, initiated the EUPM in Bosnia. Serving also as the EU Special Representative to
Bosnia, Ashdown had already been imposing sweeping administrative reforms. It was made
plain that Ashdown had little faith in the capacity of Bosnian political institutions. “For Lord
Ashdown, as for his predecessors, rather than facilitating consensus building between the three
main political parties…his own personal perspective of ‘what I think is right’ was held to
directly coincide with the interests of the population as a whole” (Hehir and Robinson 2007,
p.73). Although he had never held an elected governmental position before, Ashdown insisted on
utilizing a ‘good governance’ approach to state-building, which he would later fuse with the
EU’s conditionality approach. The EUPM would serve as probably one of Ashdown’s greatest
challenges as High Representative.
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Where was Lord Ashdown to begin? Most Western European countries typically staff
around 11,000 police officers. Bosnia’s total number of serving police officers in 2004 was
16,800 (Muehlmann 2008, p.2). Aside from being overstaffed, police forces varied in size and
police districts were outlined based on front-lines during the war. “Despite the fact that the police
played a key role in war-time atrocities, many police officers stayed in the newly created police
forces, which therefore continued to employ both passive and active sympathizers of…persons
indicted for war crimes” (2008, pp.2-3). Dayton’s creation of entities only served to reinforce
criminal networks and war criminals, many of whom were linked to entity-level police officials
and politicians. Ashdown’s task was to not only harmonize the policing bodies under a single
administrative structure, but also to depoliticize what was already a highly politicized police
sector (2008, p.4).
With its deployment in January 2003, the EUPM was the EU’s first civilian Common
Security and Defense Policy operation, with most of its funding deriving from the European
Community budget (Flessenkemper and Helly 2013, p.58). The European Council and the EU
member states refused to provide an executive mandate for the mission, stressing the importance
of local ownership of the police reforms. Thus, the EU’s approach to the police mission was
centered on capacity-building and institution-building projects, with EU officials “monitoring
and mentoring” these operations (Tolksdorf 2011, p.15). This approach would not be sufficient
for tackling complex police operations, such as the fight against organized crime. From the
beginning of the mission, the EU was already lowering the bar, and it would continue this pattern
of lowering standards throughout the duration of the mission.
Ashdown instituted a Police Restructuring Committee (PRC) to outline a police reform
package, which would need approval from domestic politicians. With the former Prime Minister
34
of Belgium serving as its chair, the PRC included the Bosnian chief prosecutor, the State
Investigation and Protection Agency, State Border Service, the entity directors of police, and
Interpol directors (Muehlmann 2008, pp.5-6). The Committee distributed an agenda for police
reform, and one of its proposals was the creation of five policing regions, all of which crossed
the Inter-Entity Boundary Line (IEBL). The rest of the PRC’s agenda was in-line with the
European Commission’s three main ‘European principles’ for police restructuring in Bosnia:
i) All legislative and budgetary competencies for all police matters must be vested at the
state level.
ii) No political interference with operational policing.
iii) Functional local police areas must be determined by technically policing criteria
where operational command is exercised at the local level (EC 2005).
With no criteria for policing procedures included in the acquis communautaire, the EU
established principles that would apply particularly to Bosnia’s situation.
The PRC’s agenda was met with vehement opposition from the Republika Srpska, which
insisted that the agenda violated the constitutional framework set up by Dayton (Muehlmann
2008, p.7). Furthermore, since the EUPM was a mandatory requirement for Bosnia to be able to
sign the SAA, Bosnia’s integration process remained delayed by police reform from 2005 to
2008 (Ayabet and Bieber 2011, p.1923). During the Vlasic talks of April 2005, Ashdown’s
attempts to get the 11 main political parties to negotiate on a policing model ended in failure.
The Serb politicians repeatedly asserted that they would not accept changes that include the
crossing of the IEBL. They also insisted that the Republika Srpska Ministry of the Interior
continue to exist, since the EUPM’s principles implied the eradication of the ministry.
35
The Serb politicians’ demands did not complement the EUPM agenda, nor did they sit
well with the EU. The EU continually turned the Serbs’ proposals down, “stating that the
creation of dual structures would not be in line with EC principles. Rather than discussing the
final report chapter by chapter, discussion concentrated on what could be given to the Serb side
to bring them on board” (Muehlmann 2008, p.8). The EU agreed to extend the deadline for
implementation and to only cross the IEBL in three regions instead of five. Still, the Vlasic talks
closed with no consensus reached among the domestic political parties.
Ashdown’s patience with the Republika Srpska government grew thin, especially after
the Republika Srpska National Assembly (RSNA) rejected yet another watered down proposal
for police restructuring in September 2005. Members of the Srpska Demokratska Stranka (SDS)
party, which held the majority in the RSNA, were the strongest opponents of the EUPM reforms.
“Ashdown chose to implement a policy of zero tolerance and of ‘death by a thousand cuts’,
mainly targeting SDS funds. For instance, he ordered all financial transactions, regardless of the
amount, to go through a central bank account” (Muehlmann 2008, p.10). In addition, the SDS
branch in Doboj was forced to pay back the money it had received illegally and to begin
providing monthly transaction reports. Ashdown had made it clear to RS politicians that their
dissent would not go unpunished by the powerful OHR.
As a result of Ashdown’s pressure, the RSNA held an emergency session on 6 October
2005 to vote on the new proposal that the leader of SDS, Dragan Cavic, had drafted. “In essence,
this was an extremely watered down proposal compared to the original aims of Ashdown. Any
decision on the design of police regions was to be taken at a later stage without even mentioning
the crossing of the IEBL” (Muehlmann 2008, p.10). Cavic’s proposal also contained features that
would prevent police restructuring from being used as a basis for other reforms that would
36
weaken Republika Srpska. The proposal was quite open-ended and clearly the opposite of what
the EU had demanded. Yet, Ashdown and the EU had to save their credibility, and an
unsatisfactory proposal was better than no agreement at all.
The new proposal was passed through the Federation’s legislature on 18 October 2005,
and enabled the European Commission to begin SAA negotiations with Bosnia on 15 November
(Muehlmann 2008, p.11). Implementing the police reforms, however, quickly became a heated
political debate. The proposal suggested the creation of a Police Reform Directorate, which
would “carry the reform forward and include police officers who would, mirroring defence
reforms, advance the process based on technical expertise and the presumed interest of the police
leadership in professionalization” (Ayabet and Bieber 2011, p.1923). Yet, the new RS
government, which had won the 2006 elections and was led by Milorad Dodik, made sure that
the RS police officers involved in the directorate would primarily represent the interests of the
RS. Furthermore, Ashdown’s term as High Representative had ended in January 2006, with
Miroslav Lajcak taking over the position. This was only the beginning of the political squabbles
that would surround the implementation of the police reforms.
Lajcak’s main goal was to rejuvenate the police reform implementation process through
the use of EU-imposed deadlines. After the police directorate report failed to be issued by the
Council of Ministers, the EU set a deadline for the report to be issued in March 2007. An
agreement failed to be reach by this deadline, as well. “The inability of the EU and the United
States—the talks were hosted in the US embassy—to broker a compromise weakened the EU
conditionality. This was compounded by the fact that the deadline came and went without any
particular consequence” (Ayabet and Bieber 2011, p.1924). The EU-imposed deadlines had been
linked to the publication of the EU’s progress report on Bosnia, with hopes that an agreement on
37
the police directorate would show up positively in the report and help further Bosnia’s
integration process (Lindvall 2009, pp. 172-73). Yet, EU conditionality was proving to be a
failure in ending the political stalemate over police reforms.
Lajcak’s attempt to end the political stalemate only fueled the tension between the
political parties. “In October 2007 the High Representative imposed a new voting procedure for
the state Council of Ministers and required the Parliamentary Assembly to simplify the voting
procedure in order to prevent blockages by absenteeism” (Ayabet and Bieber 2011, p.1924). This
decision was quickly followed by the resignation of Bosnian Serb Chair of the Council of
Ministers, Nikola Spric, in protest of the OHR’s imposition. Spric’s resignation led to a
“paralysis of the state institutions,” which only ended once a compromise was reached between
the OHR and the Bosnian Serb leadership (2011, pp.1924-1925). The OHR’s legitimacy was
weakened by the authority and leverage of domestic politicians, showing that external regulation
has its own limits.
The police reform package finally passed in April 2008, but it was far from what
Ashdown had envisioned at the start of the EUPM. The package suggested the creation of a
mainly symbolic policing structure at the state level, which would only have power after the
constitutional reforms were completed (Ayabet and Bieber 2011, pp.1925-26). With the passing
of the police reform package, the EU was able to declare that Bosnia’s police reform condition
for integration had been met. Hence, Bosnia was able to sign the SAA in June 2008.
The police mission officially ended in June 2012, leaving the local population with mixed
feelings about its overall impact. Although the EUPM failed to achieve its main objectives, it had
managed to leave a decent impression on the police sector. The EUPM provided “significant
technical and capacity-building assistance” to Bosnia’s police forces, with numerous training and
38
educational courses being offered to local units (Flessenkemper and Helly 2013, pp.52-54). The
mission also improved the level of professionalism and skill among the police forces and also
contributed to the implementation of numerous laws (2013, p.49). With the EUPM’s support,
Bosnia’s police sector had developed into a more democratic and accountable realm.
The failure of the EUPM serves as an important example of the inefficiency of EU
conditionality as a state-building mechanism in a post-conflict country like Bosnia. The EU’s
continuous lowering of the expected policing standards damaged the credibility of EU
conditionality within the country. “A systematic lowering of the bar…with a ‘carrot and stick’
approach that more often than not settled on offering the carrot, or a reward, showed local
counterparts that achieving less than was originally asked of them was not a problem”
(Flessenkemper and Helly 2013, p.47). Since the acquis communautaire does not include
policing procedures within its text, the EU had no coherent policing criteria to begin with
(Ayabet and Bieber 2011, p.1923). The lack of a coherent stance on expectations for police
reform only further damaged the credibility of EU conditionality within the country.
Bosnian local and state politicians certainly contributed their own part to the failure of the
EUPM. Soeren Kiel provides an appropriate explanation for the lack of cooperation that came
from the domestic actors in Bosnia. Kiel points out that if the EU were to tell Italy that its police
sector needs to be reformed according to the standards set up by the European Commission, then
there would be an obvious outpouring of opposition coming from the country. Italy would assert
its right to decide on the structure of its police sector. “Yet, Bosnian politicians were forced to
agree on an EU-designed reform of the police. The Bosnian police reform also highlights another
negative effect of EU Member State Building…and the attempt to design a new police structure
for Bosnia failed and caused a massive political crisis in the country in 2008” (2013, p.349). In
39
this case, EU integration was not a powerful enough incentive to end ongoing internal disputes
between the domestic politicians.
There are numerous reasons as to why EU conditionality failed to push forward police
reform in Bosnia. Firstly, the legislation for this initiative was only passed after external coercion
from the OHR, rather than genuine commitment from the domestic politicians (Ayabet and
Bieber 2011, p.1925). Ashdown’s punishing of the SDS and Lajcak’s imposition against the
uncooperative Serb leadership both served as critical maneuvers that pushed the police reform
process forward. The reward of signing the SAA was not a strong enough incentive to force
domestic politicians to leave their ethno-political quarrels aside.
Another critical reason for the failure of EU conditionality in pushing forward police
reform was the EU’s lack of clear and consistent policing standards. The ‘European Principles’
that the Commission had put forward for the EUPM “by no means reflected a European standard
or consensus, nor formed part of the acquis. The fact that the police would be anchored at the
state level was contrary to the experience of many federal states, not least Germany” (Ayabet and
Bieber 2011, p.1925). The fact that the EU was imposing policing standards on Bosnia that it did
not impose on its own member states caused many domestic politicians to doubt the EU’s
credibility. Every artificial deadline for the police directorate that had arrived and passed without
any consequence only further contributed to this lack of faith in the EU.
An additional reason for the failure of EU conditionality with the police reforms was the
lack of inclusion of the police forces. Since the discussions over police reform were only
discussed among political elites, the EU “was unable to unfold a socialisation dynamic among
the police profession itself. Unlike the reform of the army, the different police forces themselves
only played a minor role in the discussions between 2004 and 2008” (Ayabet and Bieber 2011,
40
p.1926). This focus on the political realm and political elites is a common characteristic of EU
integration and conditionality. When the EU sends experts for technical and political assistance,
these experts are usually coordinating with the political elites of the candidate countries (Grabbe
2002, p.16). In the case of Bosnia, the exclusion of the police from the decision-making process
of the police reforms only served to weaken the EU’s credibility among the police forces, since
they were not coordinating with the EU themselves.
Rather than enhancing the EU’s credibility as a state-building external actor, the EUPM
damaged the legitimacy of the EU in Bosnia. This lack of credibility made domestic politicians
in Bosnia even more opposed to the police reforms. Denti notes how the political stalemate that
the reforms had caused “remained until the OHR/EUSR backpedalled, accepting cosmetic
changes as satisfactory…It is apparent how the lack of respect for the value of diversity, intrinsic
in the international state-building agenda, allowed domestic actors to oppose a veto and conquer
the agenda of reform” (Denti 2014, p.27). Like many state-building actors had done in the past,
the EU engaged in its reform effort with its own rules and strategies and did not bother
efficiently coordinating with important local actors.
As was witnessed with the EUPM, the EU’s conditionality approach to state-building in
Bosnia has often times fuelled existing domestic issues. Europeanization and integration require
from candidate countries some degree of centralization and strengthening of state institutions.
The EU’s emphasis on centralization and state-strengthening “has provoked a backlash with the
entity and local levels, in particular, with RS…By increasing the resistance by nationalist elites
to particular reforms, EU conditionality might boost precisely those anti-state forces that the
process of state-building is supposed to weaken” (Juncos 2012, p.65). Republika Srpska has
often stood on the opposing side of EU reforms, since its political power is weakened with the
41
process of centralization. A lack of political consensus over EU integration reforms often serves
as obstacle to EU state-building initiatives.
Overall, the promise of EU integration and the ‘good governance’ imposition by the OHR
have served as contestable mechanisms for effective state-building in Bosnia. The EUPM served
as a reminder to the EU that the carrot of membership is sometimes not strong enough to prevail
over domestic opposition. Since signing the SAA in 2008, Bosnia has made little progress
toward achieving accession negotiations (Juncos 2012, p.67). As Chapter 2 of this study has
noted, EU integration is successful in molding capable and sovereign countries into member
states. With Bosnia’s weak state capacity and disputed sovereignty, the EU cannot expect the
same success it had with the CEECs to arise within this post-conflict country.
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Chapter 4: The EU’s Approach vs. The Organic Minimalist Approach
With the existence of an imposing OHR and the weak incentives of prospective EU
membership, the impact of the EU’s conditionality approach to state-building in Bosnia has been
underwhelming. By ignoring the sovereignty of the Bosnian state and the capacity of local
actors, the EU has acted more as an external regulator and less as an assistant to Bosnia’s
development. In his article, “Comparative Law and State-Building: The ‘Organic Minimalist’
Approach to Legal Reconstruction,” Dan Stigall emphasizes the benefits of an organic
minimalist approach to state-building. Stigall argues that “international actors should seek to
maximize organic resources and use no more external manpower than necessary” (2007, p.24).
As opposed to the EU’s heavily involved approach, organic minimalism would enable Bosnia’s
existing institutions to grow and develop, without having their sovereignty and authority
overridden by external actors.
Numerous EU scholars have criticized the usage of EU conditionality within post-conflict
states, such as Bosnia. The ability of EU conditionality to democratize and Europeanize a
country is heavily dependent on the existing political, economic, and social condition of the
candidate country. Although the advice and assistance from EU officials may positively impact a
candidate country, “success still very much depends on a range of factors, including the
determination of individual governments, strong public support for accession, and mutually
supportive political dynamics in Brussels” (Pridham 2002, p. 224). With a country like Bosnia,
whose sovereignty remains questioned and whose state capacity is hindered by ethnopolitics, the
EU cannot continue to rely on the prospect of membership as a motivator for state development.
One aspect of EU conditionality that complicates state-building in Bosnia is the reliance
43
on political elites to implement EU policies. Since EU integration is mainly a process of
coordination between the EU and the political elites of a candidate country, citizens’ opinions
and needs are often excluded from the process (Grabbe 2002, p.18). Coordination with Bosnian
political elites quickly becomes a tiring process, as they have differing views on state policies
and remain divided along ethnic lines. “The existence of the unique entity levels of engagement
renders state institutions and norms either non-existent or weak and, therefore, when
international institutions ‘engage’ local elites over the acceptance of norms, they encounter
ethnic norms rather than state-level ones” (Ayabet and Bieber 2011, pp.1917-18). Exporting
Europeanization to Bosnia cannot be accomplished until the political realm becomes unified and
stable. Thus, current EU coordination with political elites only serves to reinforce the divides
between these elites, rather than create stronger ties.
The EU’s decision to consolidate member state-building with post-conflict state-building
has emphasized administrative reforms without paying proper attention to the country’s weak
state capacity. For many years, the EU’s state-building initiative in Bosnia has followed “an
agenda which asserts that it is possible to have good governance without democratic
participatory politics. In BiH, the international administration argues that the rule of law and
even ‘respect for democracy’ can be developed before elected” (Chandler 2005, pp.311-12).
Hardly any of the EU’s reforms have contributed to stabilizing the political realm. The EU
cannot expect to promote democracy and human rights without strengthening Bosnia’s unstable
political realm.
In contrast to the EU’s conditionality approach, the organic minimalist approach beckons
for a minuscule international presence within a post-conflict country. Organic minimalism’s
main argument is that “organic institutions be empowered and revitalized, rather than new
44
entities and institutions be created from whole cloth. This not only avoids a legitimacy deficit
and fosters greater security, it decreases the cost of state-building by focusing resources on
established entities” (Stigall 2007, p.25). Fukuyama also notes that a minimalist approach to
state-building is far more cost-effective than a conventional approach, since there is no need to
utilize international staff or foreign donors (2006, p.243). By giving domestic actors a more
significant role in state reforms, state-building operations gain more credibility (and usually
more support) among the domestic population.
The EU, as an external actor, needs to leave a ‘light footprint’ when engaging in state-
building reforms in Bosnia (Fukuyama 2006, pp.243-244). An organic minimalist approach to
state-building operations within the country could allow for state capacity to be strengthened and
for legitimate sovereignty to be attained. A better approach to state-building in Bosnia would
require “indigenous ownership of both institutional design and implementation along with
external logistical support. For new state institutions to be stable and durable, they must be the
product of local political bargains commanding sufficient consensus to bolster their perceived
legitimacy” (Bali 2005, pp.438-439). Ashdown’s judicial advisory board and his insistence on
the creation of a state-level institution to command the police were both examples of a state-
building actor choosing to initiate change by bypassing domestic authority.
45
4.1: Bosnia’s Judicial Reform vs. Iraq’s Judicial Reform
The difference between the EU’s approach to state-building and the organic minimalist
approach can be observed when comparing the OHR-led reconstruction of Bosnia’s judiciary
with the US-led restructuring of Iraq’s judiciary. Ashdown’s solution to Bosnia’s corrupt and
flawed postwar judicial system was an extreme overhaul of its institutions and the introduction of
a foreign legal framework (Knaus and Martin 2003, p.64). In contrast, the US-led judicial
reforms that were implemented following the 2003 invasion of Iraq allowed for the continued
existence of the majority of Iraq’s legal codes and framework (Stigall 2007, p.30). While the US
state-building mission in Iraq was by no means a success, the judicial reforms exemplified a
minimalist and efficient method to legal reconstruction. The stark contrast between the two
approaches to judiciary reform sheds light on the complexities of external regulation and why the
EU’s approach needs improvement.
Up until its separation from Yugoslavia, Bosnia had utilized a civil law-based legal
system, which enabled state officials to judge criminal cases (DeNicola 2010, p.2). After the war,
Bosnia’s legal system was ripe with human rights violations and corruption – conditions which
Ashdown deemed as major obstacles for holding fair criminal trials. In early 2001, the OHR
initiated a drastic overhaul of Bosnia’s judiciary – ignoring the protests of Bosnian legal officials
and international actors. The primary goals of the reconstruction of the judiciary were to root out
corruption, increase efficiency in the judiciary and align the court system with the legal system
of the International Criminal Tribunal for the former Yugoslavia (Knaus and Martin 2003, pp.64-
65). Once more, the OHR took to a reconstruction task without the consensus of the Bosnian
state.
46
Possibly the most controversial aspect of the judicial reforms was the introduction of
common law legal framework into Bosnia’s traditional civil law-based legal system. For
decades, Bosnia’s legal framework had resembled the Austrian civil law system, which can be
summarized within the Austro-Hungarian criminal procedure code of 1873. “The 1873 code…
authorized investigative judges to produce dossiers for all serious criminal proceedings, thereby
injecting an official inquiry approach to criminal investigation and adjudication into BiH”
(DeNicola 2010, p.7). The 1873 code also allowed for subsidiary and private prosecutions to be
led by the injured party if the government failed to act.
In early 2000, the OHR Anti-Fraud Office had already established a working group to
draft a new criminal procedure code for Bosnia. This group was mainly composed of American
and German lawyers, and it created a draft that was filled with common law-style rules.
Ashdown found the group’s draft to be unsatisfactory and established a new working group to
draft a new criminal procedure code. The group was headed by Zoran Pajic, a former Bosnian
law professor, and it was made up of seven Bosnian legal professionals (DeNicola 2010, p.22).
Ashdown claimed that the working group was intended to make sure that the new criminal
procedure code would coincide with Bosnia’s traditional legal framework. Yet, the OHR’s
Deputy for the Rule of Law publicly stated: “the system that we are drafting . . . [is] in essence
an Anglo-American common law system” (2010, pp.22-23). It was clear that the new working
group was only expected to make slight revisions to the draft of the previous working group.
Despite vigorous protests from Bosnian legal professionals and international
organizations, Ashdown formally implemented the new working group’s criminal procedure
code in January 2003. The new legal framework “was a mixed system of criminal procedure akin
to the ICTY’s. Indeed, it abolished investigative judges, introduced plea bargaining, made the
47
presentation of evidence more adversarial, authorized cross-examination, and banned subsidiary
and private prosecutions” (DeNicola 2010, p.25). The insistence that Bosnia’s legal system
adhere to the ICTY’s legal system came from the ICTY’s intention to eventually hand over war
crimes cases to the Bosnian judiciary, once it had developed enough to preside over such cases
(2010, pp.25-26).
What followed the implementation of the new code was a state of confusion and
disorganization in the legal community. Prosecutors and police had difficulty understanding their
new roles, since they were now expected to carry out the duties that investigative judges used to
be in charge of overseeing. Defense attorneys also struggled with the new system, since they did
not have the investigative skills and resources that could equate with the state’s. “While
traditionally investigative judges used the state’s power to gather defense information, the 2003
code merely stipulates that the prosecutor must objectively study and establish with equal
attention facts that are exculpatory as well as inculpatory” (DeNicola 2010, p.28). The negative
impact of the new legal codes on Bosnia’s legal community implied that the introduction of
common law procedures was certainly not the best decision for the country.
The High Representative approached the flaws of Bosnia’s postwar judiciary in a way
that mostly disregarded the input of domestic actors and contradicted the country’s legal
tradition. DeNicola argues that an organic minimalist approach to reforming the country’s
judiciary would have yielded far more successful results. “They [The OHR] could have deployed
Austrian and French criminal justice experts to reform BiH’s criminal procedures in a manner
consistent with its historic approach…Reforms along these lines would have been more
comprehensible to local actors and therefore more readily adopted” (2010, p.37). Rather than
creating a huge shift within Bosnia’s legal system, the OHR could have resorted to better
48
coordination with the Bosnian legal community. Under the oversight of the EU, the High
Representative had once again imposed a foreign solution to a Bosnian domestic problem.
Unlike Ashdown’s external imposition, the Coalition Provisional Authority (CPA) in Iraq
approached the task of judicial reform with consideration for Iraq’s traditional civil law legal
system. Headed by US Lieutenant Paul Brenner, the CPA abolished capital punishment, torture,
and articles of the legal code that were clearly being utilized as tools of oppression by the
Ba’athist regime (Stigall 2007, p.30). For example, the law stating that nothing negative could be
spoken about the president was considered oppressive and was therefore abolished. “By
suspending the most problematic and unfair provisions of the penal code, the justice system
could begin its work without a cloud of suspicion. By taking this approach, the Coalition
empowered the organic legal system” (Stigall 2007, pp.30-31). Instead of introducing the U.S.
common law framework into Iraq’s legal system, the CPA focused on the needs of Iraq’s
existing legal system and initiated reforms according to those needs.
The CPA’s decision to avoid altering the Iraqi Civil Code showed respect to the country’s
existing legal framework, but also represented an important aspect of organic minimalist state-
building operations. Prior to implementing legal reforms within a weak state, external actors
should conduct a thorough study of that state’s existing legal traditions. “Rather than attempt to
recast the target legal system in the occupier's own image, the legal system of the target nation
should be allowed to function in its intended manner” (Stigall 2007, p.42). Studying a weak
state’s existing legal framework is extremely important if an external actor wants to reform that
very system. If Ashdown had considered the Austrian foundations of Bosnia’s legal system, he
could have left it untouched and focused on getting rid of corrupt legal professionals instead.
49
It is important to note that the CPA was more concerned with weeding out inefficiencies
and oppressive laws in Iraq’s legal framework than overhauling the framework entirely. If
Ashdown had focused more on reforming the problematic areas of Bosnia’s legal system, rather
than introducing entirely foreign elements into it, he could have increased the efficiency of
Bosnia’s judicial sector. “Rather than engage in unnecessary tinkering with a cornerstone of Iraqi
legal culture, the CPA prioritized the needs of the judiciary and allocated resources accordingly”
(Stigall 2007, p.35). The CPA’s organic minimalist approach to reforming Iraq’s judiciary
displays a far more harmonious and beneficial method of judicial reform than the OHR’s chaotic
renovation of Bosnia’s legal system. Indeed, the process of state-building is supposed to
strengthen and enhance a country’s existing institutions, not impose drastic alterations that leave
them weakened.
The organic minimalist approach produces a wide array of advantages for international
state-builders. One advantage is that the rapidity of implementing reforms is increased.
“Empowering an existing institution (such as a criminal court) is a quicker and shorter process
than that of creating a new court, educating the employees, funding the project, etc.” (Stigall
2007, p.25). As was witnessed with the implementation of EUPM, reforms that rely heavily on
external involvement rather than domestic coordination are bound to run into numerous
complications.
Another significant advantage of the organic minimalist approach is that it avoids stirring
the issue of overdeveloped bureaucracy in weak states. “Creating additional commissions,
tribunals, and councils, when the already-existing organic institutions (if properly empowered)
could handle the task, only exacerbates that problem” (Stigall 2007, p.26). In weak states such as
Bosnia, the extensive amount of EU and NGO bureaucracies frequently end up infringing upon
50
the state’s authority (Chandler 2006, pp.27-28). By utilizing Bosnian staff and professionals,
rather than EU and international employees, reform initiatives can benefit from employees who
are already knowledgeable of how the institutions work. This approach also requires less
financial spending from the EU, since it is far more expensive to create an entirely new
institution than it is to empower an existing one.
Comparing the EU’s approach to state-building with the organic minimalist approach
reveals that the EU could benefit with some reform of its methods. One of the main issues with
the OHR’s extremely drastic replacement of Bosnia’s traditional legal system is that it only
added confusion and disorganization to an already flawed judiciary. When comparing the
judiciary reforms led by the EU to those led by the CPA, it is clear that the CPA chose a less
imposing and drastic method of restructuration. An organic minimalist approach would benefit
not only the legal system in Bosnia, but also other institutions in the country that are in dire need
of reform. Since the organic minimalist approach includes more coordination with domestic
actors and less external imposition, it has the potential to bring about more progress in Bosnia
than the EU’s approach.
51
Conclusion
The state-building paradigm in Bosnia needs to take a drastic shift. The EU cannot expect
to strengthen Bosnia’s state capacity and enhance its autonomy by continuing to utilize EU
membership as an incentive for reform. As the protests of spring 2014 have shown, Bosnia’s
overall state is not much more stable today than it was at the end of the war. Bosnia cannot be
guided toward EU accession without first reforming its major institutions and its flawed political
system. To achieve successful state-building, the country requires assistance from an external
actor who will coordinate with key domestic actors and respect local tradition. The forced policy
implementation of the OHR and the weak carrot of EU conditionality continue to present
themselves as impediments to true progress.
In order for successful state-building to occur in Bosnia, the EU needs to re-adjust its top-
down method of instilling policies and reforms. EU representatives and agencies should
“approach their mission with better articulated bottom-up strategies and enhanced coordination
between different agencies, thus minimizing the risk of creating phantom states that are not self-
sustaining and need to be babied for decades with continuous injections of external financial aid”
(Venneri 2010, p.104). With an approach that emphasizes external regulation and EU-compatible
institutional frameworks, the EU frequently neglects domestic opinion with its reform tactics. EU
conditionality cannot continue to export European policies to a country that is still attempting to
stabilize and develop its own domestic policies.
State-building in Bosnia also ties in with contemporary state-building theory on the
importance of securing stability in weak and collapsed states. A crucial goal of the EU’s
involvement in Bosnia and in the Western Balkans is to maintain peace within the region and
avoid another outbreak of war. “While the ultimate objective of this policy is to make Bosnia and
52
Herzegovina an integral part of the European Union, the process contributes to building security
in our neighborhood: one of three strategic objectives for the Union identified in the EU Security
Strategy” (European Council 2004). Thus, reconstructing Bosnia into a strong autonomous state
is necessary not only to strengthen the country’s statehood but also to secure peace in Europe.
This notion further emphasizes the need for an effective approach to state-building in the region,
rather than an EU integration-based approach.
A major issue with an EU integration-based approach to state-building is that its
credibility is often times weakened by both Bosnian and EU factors. Recently, one of these
factors has been the issue of enlargement fatigue among the existing EU member states.
“Because unanimity is required for EU membership to be granted, each existing member has a
veto power on accession…Many EU member states, led by France, are opposed to further
enlargement in the absence of a new treaty” (Belloni 2009, p.30). The fact that the EU is utilizing
an unstable mechanism (EU accession) as a state-building tool in a post-conflict region is
inherently problematic. It is also another reason why the EU’s approach needs to be revised.
Today, Bosnia is home to a population that is more frustrated with its country’s lack of
progress than ever. The protests that emerged in spring of 2014 displayed a population that is
tired of ethnic rhetoric within the political realm and no substantial improvements being made
within Bosnia’s political, economic, and social condition. The unemployment rate has remained
around 40% for years, while this number is currently 57% among youth (Mujanovic 2014, p.1).
Political corruption is rampant, with many politicians exploiting their party status for personal
gains (Zaum 2007, p.13). The issue of a fragmented political realm has repeatedly been side-
stepped or neglected by EU reforms. What the protests have reiterated is that Bosnia cannot
expect to make any substantial progress as a country without strengthening its state capacity.
53
Bosnia’s society and economy have the potential to flourish into forces to be reckoned
with, but as long as the political realm remains unstable, prosperity remains far from grasp. This
study does not call for an exit of the EU from Bosnia, rather a revision of the EU’s methods of
assisting Bosnia in its development into a truly sovereign state. As Chandler notes, “Bosnia is
possibly the clearest case of a new type of state being built through the EU enlargement process
of distancing power and political responsibility” (2007, p.65). Strengthening the state implies
engaging in better coordination with domestic actors- a concept that is supported by the organic
minimalist approach to state-building. Whether the EU takes an organic minimalist route or
another kind of state-building route, it remains apparent that the EU’s policy of state-building in
Bosnia is in need of serious reform. As the main international actor assisting the country, it is the
EU’s obligation to adjust its approach to the needs of Bosnia’s domestic realm. Only then can the
country move forward and become an example of state-building success.
54
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