Global Human Rights Defence

Bosnia and Herzegovina’s Contentious Election Law and Constitution Cause Difficulties
Bosnia and Herzegovina’s capital, Sarajevo. Source: Markus Winkler/Unsplash 2020.

Author: Margareta Ana Baksa

Department: Europe Team

In late March of 2022, a new round of negotiations for the reform of the election law in Bosnia and Herzegovina fell through once again (N1 BiH, 2022). This is another damning event in Bosnia’s current political crisis, one marked by increased tensions between political parties, threats of boycotting the upcoming elections, and threats of secession from the State altogether (Sito-Sucic, 2022). The contentious elections in Bosnia and Herzegovina are set up based on the Dayton Peace Accords for Bosnia and Herzegovina and the Electoral Law of Bosnia and Herzegovina (Sahadžić, 2009). The former is frequently brought into question and poorly implemented; the latter is disputed by some for providing too many barriers to political participation and by others for giving too much power to the wrong groups (Gadzo, 2022; Sahadžić, 2009).

 

Background

  1. The Dayton Agreement 

During the four years of the war in Bosnia and Herzegovina, peace processes had been started, but none were successful until 1995, when the Dayton Peace Accords were signed by representatives of Croatia, Bosnia and Herzegovina, and Serbia, then under the name of the Federal Republic of Yugoslavia (Neu, 2012). The Dayton accords were overseen by representatives from the United States, the United Kingdom, France, Germany, Italy, Russia, as well as the European Union, and resulted in the creation of the Office of the High Representative, an ad hoc international institution that monitors the implementation of the provisions in the Dayton accords and supervises, among others, the organisation of elections and appointment and approval of local officials (Subotć, 2009; Dayton Peace Agreement, 1995). This weakened Bosnian institutions, as the international community had a hand in approving or deciding on numerous issues (Subotić, 2009). More issues continued to surface as the Dayton Agreement, an initially temporary solution that was never meant to be the final solution, stands the test of time (Gadzo, 2022). 

On paper, the accords halted the violence in Bosnia – a landmark agreement in this regard. However, the Dayton Agreement also divided the country into ethnic lines (Castro Seixas, 2013). A country that had long prided itself on its multiculturalism was separated into two entities: Republika Srpska (RS), with a majority Bosnian Serb population, and Federacija Bosne i Hercegovine (FBiH), with a majority Bosnian Muslim (Bosniak) population and the Bosnian Croat population (Subotić, 2009).  The Dayton accords also formalised Bosnia’s new Constitution, which, as Jelena Subotić (2009) notes: 

 

“[The constitution] was a massively complex document creating layers of overlapping jurisdictions, all in order to prevent any one side from ethnic dominance. It established a central government with a bicameral legislature, a three-member rotating presidency (consisting of a Bosniac, a Croat, and a Serb), a council of ministers, a two-house legislature, and a constitutional court. Two subentities—[RS] and [FBiH] —were given their own parliaments, prime ministers, and ten regional authorities, each with its own police force and education, health, and judicial authorities.”

Bosnia and Herzegovina thus became a country where the citizen was, above all else, a member of an ethnic group (Jones et al., 2013). Moreover, the political involvement of citizens is directly limited by their home entity. The law regulating elections in Bosnia and Herzegovina only further limits the possibility for political participation. 

 

  1. The Electoral Law of Bosnia and Herzegovina 

The Electoral Law of Bosnia and Herzegovina regulates the election of the members and the delegates of the Parliamentary Assembly of Bosnia and Herzegovina and of the members of the Presidency of Bosnia and Herzegovina (“Službeni glasnik BiH”, 2001, art.1). The law reiterates and expands upon the provisions laid out in the Constitution. Specifically, it limits political participation based on a combination of factors, including membership of a constituent people group and entity of origin. For example, Article 8.1 of the law, which regulates the election process for the tripartite Presidency of Bosnia and Herzegovina, provides that one member of the presidency is elected directly from the territory of Republika Srpska – a Serb – and that two are elected directly from the territory of the Federacija BiH – a Bosniak and a Croat (“Službeni glasnik BiH”, 2001). Therefore, a Serb living in the territory of FBiH cannot be elected as a member of the presidency, nor can a Bosniak or Croat be elected if they live on the territory of the RS. 

Article 2.5, which regulates the Central Election Commission of Bosnia and Herzegovina, is also notable as it provides that there shall be seven members in Parliament: two Croats, two Bosniaks, two Serbs, and one “other” member. Peculiar here is this designation of the “other” category, the members of which make up around eight per cent of the Bosnian population based on the 2013 census (BHAS, 2019). This category includes other minorities in Bosnia and  Herzegovina, such as the Roma, who make up 0.35 percent of the population, but also the one percent who identify as Bosnian instead of Bosniak (BHAS, 2019). This distinction is built on whether individuals identify with the State (ie. Bosnian, not necessarily Muslim) or with their ethno-religious affiliation (ie. Bosniak, meaning Bosnian Muslim). Bosniaks can, therefore, be elected as members of the Presidency in Bosnia and Herzegovina, but Bosnians cannot. Due to provisions such as these, the European Court of Human Rights has, on five separate occasions, determined that the Bosnian Constitution, the provisions of which are repeated in the Electoral Law, are discriminatory (Gadzo, 2022) [1]. Nonetheless, the verdicts were never implemented, and the contested law and provisions in the Dayton agreement remain in force. 

 

Current issues

With the upcoming elections in October 2022, there has been an upsurge in talks of reform of the election law. In contrast with the demands of some citizens asking for a one person-one vote system and the end of lawful discriminatory practices, political elites have pushed for other interests. The main Bosnian Croat political party, The Croatian Democratic Alliance Bosnia and Herzegovina (HDZ BiH), led by Dragan Čović, is pushing for reforms that would ensure that only members of each ethnic group could elect their own representatives, i.e. that only Croats could elect the Croat member of the presidency, instead of both Bosniaks and Croats (Hitchner, 2021). This is presumably because Čović himself was defeated in the last elections by Željko Komšić, another Bosnian Croat and party leader of the Democratic Front, who had more support from Bosniaks in FBiH (Gadzo, 2018). 

Moreover, as they make up only about 15 percent of the population, Bosnian Croats may feel threatened by the majority Bosniak population in FBiH (BHAS, 2019; Sito-Sucic, 2021). These demands could, potentially, further increase the existing ethnic divisions in the country. HDZ BiH has already threatened a boycott of the upcoming elections in case the changes in the election law are implemented (Sito-Sucic, 2022). Such a move would not necessarily lead to the desired outcome for Bosnian Croats but would most certainly play into the hands of RS Serb nationalist leader Milorad Dodik and confirm his rhetoric that the real issue at hand is not in his entity, but in the failure of the other (Y. Z., 2022). Dodik, in the meantime, has fueled this recent crisis even further with threats of creating a separate army and judiciary for Republika Srpska or even of a complete secession from Bosnia and Herzegovina (AFP, 2022). The results of such an event could be disastrous for Bosnia and Herzegovina: Bosnia’s peace envoy Christian Schmidt warned in 2021 that “the prospects for further division and conflict are very real” (Delauney, 2021). 

 

Looking forward

With repeated failures in the negotiations on amendments, the faith of the Electoral Law, or indeed of the upcoming elections themselves, is questionable. As October approaches, party leaders and EU & US negotiators have been under pressure to reach a consensus as quickly as possible and to conduct the negotiations themselves transparently, away from the sights of the people the decisions would affect (Gadzo, 2022). If the Bosnian Croat demands were accepted, it would lead to more discriminatory practices. Furthermore, it is unclear where the “others” would be left in the aftermath, as there seems to be no progress in the implementation of the decisions of the European Court of Human Rights. Legal provisions have proven to be discriminatory and continue to be upheld while elites continue to push for even more ethnic separation – Bosnia and Herzegovina remains paralysed by a 30-year-old agreement that was never meant to be more than “a bandage for a bleeding wound” (Helic in Gadzo, 2022), while the people of Bosnia and Herzegovina look on to an uncertain future. 







Notes

[1] See, for example, Sejdić and Finci v. Bosnia and Herzegovina, nos. 27996/06 and 34836/06, ECHR 2009 or Zornić v. Bosnia and Herzegovina, no. 3681/06, ECHR 2014.

 

References

 

AFP (2022, February 25). Bosnians head abroad or despair at home amid secession threats. France24. Retrieved March 23, 2022, from https://www.france24.com/en/live-news/20220225-bosnians-head-abroad-or-despair-at-home-amid-secession-threats 

 

BHAS (2019). Popis stanovništva, domaćinstava i stanova u Bosni i Hercegovini: Etnička/nacionalna pripadnost, vjeroispovjest i materinji jezik [Census of population, households, and dwellings in Bosnia and Herzegovina: Ethnic/national affiliation, religion and mother tongue]. Agency for Statistics of Bosnia and Herzegovina. Retrieved March 23, 2022, from https://popis.gov.ba/popis2013/knjige.php?id=2 

 

Castro Seixas, E. (2013). How Activists See Civil Society and the Political Elite in Bosnia: Relevance to Prospects of Transitional Justice. In Simić, O. & Volčič, Z. (Eds.) (2013). Transitional Justice and Civil Society in the Balkans. Springer. Doi: 10.1007/978-1-4614-5422-9  

 

Dayton Peace Agreement – General Framework Agreement for Peace in Bosnia and Herzegovina (1995). Retrieved March 23, 2022, from  https://www.refworld.org/docid/3de495c34.html 

 

Delauney, G. (2021, November 3). Bosnian leader stokes fears of Balkan breakup. BBC. Retrieved March 23, 2022, from
https://www.bbc.com/news/world-europe-59130945 

 

Gadzo, M. (2018, December 18). Is Croatia undermining Bosnia’s sovereignty?. Al Jazeera. Retrieved March 23, 2022, from https://www.aljazeera.com/features/2018/12/18/is-croatia-undermining-bosnias-sovereignty 

 

Gadzo, M. (2022, March 19). Can Bosnia’s Dayton Peace Agreement be reformed?. Al Jazeera. Retrieved March 23, 2022, from https://www.aljazeera.com/news/2022/3/19/can-bosnias-dayton-peace-agreement-be-reformed 

 

Jones, B., Jeffrey, A., Jakala, M. (2013). The “Transitional Citizen”: Civil Society, Political Agency and Hopes for Transitional Justice in Bosnia–Herzegovina. In Simić, O. & Volčič, Z. (Eds.) (2013). Transitional Justice and Civil Society in the Balkans. Springer. Doi: 10.1007/978-1-4614-5422-9 

 

N1 BiH (2022, March 20). Eichhorst: Iscrpili smo svoje mogućnosti, ovo je propala šansa za domaće lidere [Eichhorst: We have exhausted all possibilities, this is a missed chance for local leaders]. N1 Info. Retrieved March 23, 2022, from https://ba.n1info.com/vijesti/eichhorst-iscrpili-smo-svoje-mogucnosti-ovo-je-propala-sansa-za-domace-lidere/ 

 

Neu, J. (2012). Pursuing Justice in the Midst of War: The International Criminal Tribunal for the Former Yugoslavia. Negotiation and Conflict Management Research. 5(1). https://doi.org/10.34891/d7d4-8597

 

Sahadžić, M. (2009). The Electoral System of Bosnia and Herzegovina: A Short Review of Political Matter and/or Technical Perplexion. Suvremene Teme, Vol. 2, No. 1, pp. 61-78. 

 

Sito-Sucic, D. (2021, November 3). Explainer: What is causing the political crisis in Bosnia?. Reuters. Retrieved March 23, 2022, from https://www.reuters.com/world/europe/what-is-causing-political-crisis-bosnia-2021-11-03/ 

 

Sito-Sucic, D. (2022, February 19). Bosnian Croats say may push for own region unless election law changes. Reuters. Retrieved March 23, 2022, from https://www.reuters.com/world/europe/bosnian-croats-say-may-push-own-region-unless-election-law-changes-2022-02-19/ 

 

“Službeni glasnik BiH”, Izborni zakon Bosne i Hercegovine [The electoral law of Bosnia and Herzegovina] br. 23/01.

 

Subotić, J. (2009). Hijacked Justice: Dealing with the past in the Balkans. Cornell University Press. 

 

  1. Z. (2022, March 21). Dodik: The Failure of the Negotiations showed where the Problem is in BiH. Sarajevo Times. Retrieved March 23, 2022, from https://sarajevotimes.com/dodik-the-failure-of-the-negotiations-showed-where-the-problem-is-in-bih/

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