The botched attempt by Bosnia and Herzegovina’s Office of the High Representative (OHR), the chief international arbiter of the U.S.-brokered Dayton Peace Accords that ended the Bosnian War in the 1990s, to unilaterally amend the country’s election law has upended the politics of the most geopolitically sensitive polity in Southeastern Europe. A major rethink of Western policy in Bosnia is needed, and it must be rooted in genuine democratic principles.
Bosnia has the most decentralized and complex constitutional regime in the world, a product of the Dayton Accords’ Annex 4, which serves as the country’s constitution. Nearly every elected and administrative position in the country’s Byzantine government apparatus is staffed according to a rigid ethno-sectarian key, the primary product of which has been a near total breakdown of any meaningful sense of governance.
This constitutional regime is also flagrantly discriminatory, according to eight landmark rulings by both Bosnia’s own Constitutional Court, and the European Court of Human Rights because it affords rights to representation almost exclusively on an ethnic basis, and often excludes those who do not identify as such or are located in the “wrong” part of the country (i.e., where their assumed ethnic community does not have an absolute majority). A similar ninth ruling is expected to come to the same conclusion in the coming months.
At the heart of each of these cases is the status of the so-called “constituent peoples,” the country’s three primary ethnic groups: the Bosniaks, Serbs, and Croats. Although the term “constituent peoples” is used in both the country’s state constitution and the constitutions of its two primary administrative entities (the Federation and the Republika Srpska), the term is never actually defined. Instead, Bosnia’s constitution(s) – its state constitution, and the constitution of the two primary entities – suggest that these constitutive peoples have a (presumably distinct) right to political representation but so do the country’s citizens as a whole, including the “Others” (a term used to denote minority groups like the country’s Romani and Jewish communities).
For instance, the term only appears three times in Bosnia’s state constitution. In the most relevant passage, located in the Preamble, it suggests inherent equality between each of these groups by noting that “Bosniacs [sic], Croats, and Serbs, as constituent peoples (along with Others), and [emphasis added] citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows.” But in Article 5 of the constitution, which concerns the role of the state presidency, representation on the body is exclusively reserved to Bosniaks and Croats from the Federation entity (but not those from the Republika Srpska entity) and to Serbs from the Republika Srpska entity (but not those from the Federation entity).
The problem is obvious: on what basis do the “constituent peoples” have a greater or distinct claim to political and democratic rights in Bosnia? How can the status of the constituent peoples be equal to that of other Bosnian citizens when the constitution bars non-members of these groups from serving in the executive of the state? And why are the rights of constitutive peoples from areas where their group does not form a demographic majority likewise barred from representation?
As the nearly a dozen aforementioned constitutional rulings have now found (and a recent German Bundestag resolution likewise concluded), the constituent people concept, as it is presently applied by the ruling nationalist oligarchy, contravenes the European Convention on Human Rights, which according to Bosnia’s own constitution takes precedence over any domestic laws. As such, Bosnia’s constitution and election laws must be amended.
The international community has long tried to avoid this scenario for fear of even worse outcomes should these documents be opened for discussion and also cognizant that successful amendments currently requires the consent of the nationalist (ethnically-identified) parties that dominate Bosnia’s politics. Owing to the sweeping mandates and expansive veto powers implicitly afforded to these actors by the country’s existing sectarian constitutional regime, that has proven to be a nearly impossible task – they understandably, though wrongly, refuse to give up such power.
As the architect of the country’s constitution, the United States seems to have become so desperate to resolve Bosnia’s now more than decade-long constitutional crisis that in 2021 it appointed a specific elections-reform envoy for the country, Matthew Palmer. He and his European Union counterpart, Angelina Eichhorst, however, only succeeded in fomenting another firestorm of controversy. In the Fall of 2021, Bosnian media began reporting that the pair’s efforts to advance the country’s reform process were largely characterized by attempts to appease the Croat nationalist HDZ, a party that wins less than 10 percent of the national vote but that enjoys vast institutional privileges within Bosnia’s myriad legislative bodies owing to the vast powers afforded to ethnically constituted actors within the country’s existing constitutional regime,
Palmer and Eichhorst’s ultimately failed forays eventually begat a still more brazen attempt by High Representative Christian Schmidt. On July 19, Bosnian media began to report that Schmidt was preparing to use his executive powers – the so-called Bonn Powers that allow him to impose laws, sack elected officials, even change the country’s state symbols as a predecessor had done, all on the premise of implementing the Dayton Accords – to amend the election laws of the Federation entity. He was going to do so after the election campaign had already begun, 2 1/2 months out from the scheduled Oct. 2 balloting. Furthermore, in the opinion of most relevant local and European constitutional experts, the move would have disenfranchised thousands of voters in the process and benefited, exclusively, the Croat nationalist HDZ and their secessionist coalition partners in the Serb nationalist SNSD.
What followed was a week of public outrage, admonitions, and appeals from legislators in all major Western capitals for Schmidt to reconsider. A 7,000-strong protest in front of the OHR in Sarajevo demanded the same, as did a resolution adopted by the Federation entity House of Representatives seeking to “defend [Bosnia’s] multiethnic character,” the first time that body had ever come out against the OHR. In the meantime, it was also revealed that the text of the proposed law had been written in Zagreb by the cabinet of the Foreign Minister, only the latest scandal in a years-long campaign by Croatian officials to interfere in Bosnia’s domestic affairs.
On July 27, Schmidt relented, opting to impose only a series of technical amendments to the country’s election code. But the damage to the OHR’s legitimacy as an impartial arbiter of Bosnia’s constitution will not be easily repaired. Indeed, it is difficult to imagine how Schmidt can credibly continue in his post given the events of the past two months, especially as rumors continue to swirl that he will again attempt to use his Bonn Powers sometime in early September, on the proverbial eve of election day.
The bigger question now, for Bosnians and for the Euro-Atlantic community, is how to move forward? A major rethink of existing Western policy in Bosnia is needed; and must be rooted in genuine democratic principles.
Principles of Constitutional Reform
First, any future constitutional or electoral reform initiative in Bosnia must reflect the totality of the outstanding Constitutional Court and European Court of Human Rights decisions. The U.S. and EU cannot salami-slice the universal civil and democratic rights to which all Bosnian citizens are entitled.
Second, any future reform negotiations must take place exclusively within Bosnian parliamentary institutions. Closed-door talks in luxury hotels and restaurants in Bosnia and various European capitals, as has long been the norm, have decimated the trust of Bosnian citizens in the transparency and legitimacy of the process. This must end.
Third, such talks must include all parliamentary actors. The international community must not narrow negotiations only to the respective nationalist chieftains of the three primary sectarian blocs. By my count, depending on the electoral cycle, a quarter to a third of all Bosnian voters have supported multiethnic, civic, and left-liberal political parties. Their views must be accounted for.
Fourth, the actual content of the talks and subsequent agreements must reflect the legal-political principles of the Euro-Atlantic community in which Sarajevo aspires to have membership. The aim cannot be a deal for the sake of a deal. It must be an agreement that will create credible, functional, and democratic institutions in Bosnia.
Fifth, and perhaps most important, the international community must assist in breaking the monopoly of the oligarchic, sectarian political parties that have captured the entire Bosnian state apparatus. One or two political actors cannot be allowed to derail the potential for categorical progress. If a majority of Bosnian MPs, representing a majority of the country’s populace, can agree to a set of electoral changes – which, at least broadly speaking, is already the case – the U.S., EU, and OHR should work with these actors to put such changes to a national referendum. The Bonn Powers could be used to create the legislative framework for such a vote to take place; that is, the OHR could create the necessary legislation for the conduct of referenda at the national level, which would also legally task elected officials with implementing the results. If the Bosnian public does not approve of the proposed changes, the parties would return to the negotiating table. If, however, the Bosnian public delivers a clear affirmative opinion, then the Bosnian parliament would have a clear mandate to realize these changes. If obstructionist actors again try to blockade the process, the OHR too would have a clear popular mandate to impose the changes itself, in their entirety or in some more limited fashion.
Bosnians have watched history pass them by, as decades have been lost to sectarian bickering, political gridlock, and international indifference, and all of it fundamentally the product of a constitution they had no hand in drafting – nor one that even has an official translation in the local language. The core of this regime is rotten and discriminatory, and the international community must not seek to entrench it further, especially not in the face of widespread public opposition.
For nearly a quarter century, American and European officials have told Bosnians their future is in the EU and NATO. It’s well past time for these same international officials to work with actual Bosnian reformers to create the institutional mechanisms to realize those aspirations.