False Hope for Democracy in Bosnia & Herzegovina
On the role of the international community in the implementation of the ECtHR’s judgments
Bosnia & Herzegovina (B&H) is notoriously hard to govern. Scarred from a bloody war in the 1990s after the collapse of Yugoslavia, the country’s constitutional order emerged in international peace talks in the United States. What later became famous as the Dayton Peace Agreement (DPA) might have stopped the war but, in our opinion, sowed the seeds for complex democratic problems today. The root of the problem is that the peace agreement brokered a fragile balance between the three main ethnic groups in the country – Bosniacs, Serbs, and Croats – by giving them special rights and extra influence. These rights are countered, or rather overshadowed by the true power center of the state, which is the unelected Office of the High Representative, a foreigner who shall maintain peace among the ethnic groups. In several decisions, the European Court of Human Rights (ECtHR) had issues with this arrangement. We take a deeper look at the intricate legal and political entanglements of human rights law, democracy, self-determination, and peculiar institutional relics from the end of history.
As we will show in this text, the ECtHR’s judgments represent a false hope for democracy in B&H, because ethnopolitical parties in B&H will not agree on how to implement the ECtHR’s judgments and the Office of the High Representative will not take a more active role in this context – all united in their respective desires to protect their positions and powers in B&H. We therefore argue against an earlier contribution on this blog by Woelk (2023), who suggested that the solution for the implementation of the ECtHR’s judgments should come from within the country, as we will show, ethnopolitical actors do not have a real interest in implementing these judgments. To put it bluntly, change from within is, alas, pie in the sky. It is much more likely that nothing changes and the powers that are remain the powers that will be.
Historical Context
Let us begin with some historical context. The primary aim of establishing the new constitutional order in the late 1990s was to stop the war. Therefore, the new constitutional order introduced the new concept of the ‘constituency of peoples’ which prescribes special collective rights for Bosniacs, Serbs and Croats (the constituent peoples). Only members of the ‘constituent peoples’ have the right to be candidates for the Presidency of B&H and the House of Peoples. The democratic problem with this concept is that these institutions have powers to deal with a life of all citizens of B&H. However, not all citizens have the right to stand for elections to these institutions. The last census in B&H was held in 2013, where 3,7% (130.054) of citizens did not belong to one of the three constituent peoples. Crucially, many of these 3.7 % of citizens are historically marginalized groups like Sinti, Roma, or Jews. In five cases, before the last case of Kovačević v. B&H, the ECtHR stated that the constituency of peoples is not in line with the European Convention on Human Rights (ECHR). All five cases challenged the same provisions of the B&H Constitutions (Art. IV and V), which prescribe exclusive positions for the members of the constituent peoples to the House of Peoples (the upper house of the B&H Parliamentary Assembly) and the Presidency of B&H. In the Zornić v. B&H case, the ECtHR states that the concept of the constituency of peoples was introduced to stop the war, but after peace had been established, there is no reason for maintaining this concept in the B&H Constitution (Zornić v. B&H, para. 43).
In Kovačević v. B&H, the ECtHR repeated that the collective ethnic rights of the constituent peoples undermine the rights of all other citizens of B&H (including national minorities) who do not qualify as members of the constituent peoples. To be clearer in this context, Sejdić and Finci, as members of national minorities (Roma and Jews), and Zornić as a citizen of B&H, who does not want to affiliate as a member of the constituent peoples, do not have the same rights as the constituent peoples (see: Sejdić and Finci v. B&H, Zornić v. B&H). Thus, the last judgment in the case of Kovačević v. B&H, deepened the permanent political crisis in B&H, because the ECtHR struck again at the current ‘essence’ of B&H’s constitutional order – the special rights for constituent peoples at the cost of marginalized groups.
Overcoming the constitutionalized division into three distinct constituent peoples with special rights would make B&H an effective (self-sustainable) democracy. In other words, overcoming the focus on the three constituent peoples would gut the formal powers of ethnopolitical leaders in B&H. On the other hand, in our opinion, keeping this concept in the constitutional order maintains political division and sectarianism, which requires the presence of the international community in B&H in the first place.
After initial euphoria about this judgment, its implementation remains uncertain. In this text, we scrutinize the role of the international community – and its institutionalized manifestation, the ‘Office of the High Representative’ (OHR) – in the possible implementation of the ECtHR judgments. The OHR as the institution whose role is to implement and protect the DPA is particularly interesting in the context of the implementation of the ECtHR’s judgments. What are the legal and political obligations of the OHR in this context, and accordingly, should the OHR in B&H take a more active role in the implementation of the ECtHR’s judgments?
Possible consensus on the implementation of the ECtHR’s judgments?
After the ECtHR’s judgment in the Kovačević v. B&H case, political leaders commented on this judgment. Nermin Nikšić, the prime minister of the Federation of B&H (FB&H) Government and one of the leaders in the so-called ‘Trojka’, said that this judgment stated the future of B&H is undoubtedly a liberal-democracy. However, experience shows that not everything that comes from Strasbourg gets implemented in B&H. For example, the informal leader of the Croat people in B&H, Dragan Čović, said that regardless of this judgment, he and his party will continue to support and promote the concept of ‘legitimate representation’ (which is contrary to this judgment). Much in the same vein, the informal leader of the Serb people in B&H, Milorad Dodik said that this judgment cannot be implemented in B&H and that he will recommend to the National Assembly of the Republika Srpska (RS) to reject this judgment. Currently, in B&H the government at the state level is the coalition of ‘Trojka’ (a mix of civic and Bosniac parties), Čović’s party (HDZ), and Dodik’s party (SNSD). They have a consensus on the last judgment of the ECtHR that now they cannot implement this judgment. Dodik and Čović support the non-implementation because it would take their powers, and ‘Trojka’ supports the non-implementation because they do not want to undermine the current coalition with their partners.
Against this backdrop, the suggestion of Jens Woelk (2023) to implement ECtHR’s judgments in B&H through national consensus seems too optimistic and idealistic.
Woelk’s optimism appears particularly misplaced from a historical and practical perspective. History reminds us that almost all political-sensitive judgments in B&H were implemented (or imposed) by the OHR which has the power to impose any measure to implement and protect the DPA. That includes the implementation of judgments, enactment of new laws, and dismission of politicians. The High Representative is the figure who represents the OHR, and he is not elected by the people in B&H, but by the Peace Implementation Council (also the international actor in B&H established in London).
Theoretically, as Woelk (2023) stated, the implementation of ECtHR judgments is simple. The House of Representatives can amend the B&H Constitution with a two-thirds majority (Art. X of the B&H Constitution). But, in the practical sense, this means that still adversarial ethnopolitical (Bosniac, Serb, and Croat) parties must support amending the Constitution. The question is why would they support amending the Constitution with the mentioned judgments if that implies losing their powers? More precisely, the ECtHR’s judgments require (see for example Kovačević v. B&H, para. 55) the over-composition of the House of Peoples or limiting its powers, which implies ethnopolitical parties in B&H in that case would lose powers to obstruct the political process in B&H. Therefore, we may expect the internal, political implementation of ECtHR decisions through the three ethnopolitical players only in a very distant and uncertain future.
Legal obligations of the OHR in implementing the ECtHR’s judgments
So, what about the High Representative? The DPA in Annex 10, Art. V stated that the High Representative ‘is the final authority in theater regarding interpretation of this Agreement on the civilian implementation of the peace settlement.’ Accordingly, the OHR should secure enforcement of the civilian aspects of the DPA. That was the legal basis for the OHR when it implemented past decisions by B&H’s constitutional court.
In principle, the B&H Constitution prescribes that the European Convention of Human Rights and Protocols apply directly and ‘have priority over other law’ (Art. II (2) of the B&H Constitution). That means the B&H Constitution requires the implementation of all ratified international treaties. B&H ratified the ECHR in 2002 and ratified Protocol 12 in 2005. By ratifying, the ECHR and additional Protocols, including Protocol 12, B&H established the obligation under international law and domestic law to implement ECHR and Protocols. Therefore, in principle, ECtHR judgments assume a spot at the cusp of B&H’s constitutional structure. It should, therefore, go without saying that the DPA implements ECtHR decisions whenever the political process is gridlocked.
The political role of the OHR in the implementation of the ECtHR’s judgments
The DPA was signed to establish peace, but not only that. If we consider the DPA as a document of transitional justice, the first aim of the implementation of this document would be to establish peace, and the second aim would be to establish a self-sustainable democracy that does not depend on the intervention of the international community. Implementing the string of ECtHR judgments, would be a huge step towards a ‘normalized’ constitutional regime in B&H. In that sense, implementation should be the OHR’s chief concern. That is also the opinion of the Strasbourg court, which stated that ‘peace and dialogue are best maintained by an effective political democracy (…), of which the ability to freely exercise one’s right to vote is a pillar’ (Kovačević v. B&H, para. 74).
The democracy in B&H, since the domination of collective ethnic rights, is not effective. The ineffective democracy in B&H also blocks the implementation of the ECtHR judgments. Unsurprisingly, leaders of ethnic groups in B&H do not wield their powers. So, there is the paradox situation where B&H without implementing these judgments can become an effective democracy – because the OHR could force implementation upon recalcitrant ethnopoliticians – but on the other hand, B&H would have to be an effective democracy to implement all these judgments on its own.
To reiterate, Woelk (2023) suggested that the solution for the implementation of the ECtHR’s judgments should come from within the country. However, as we have shown, ethnopolitical actors have no real interest in implementing these judgments. Unlike Woelk’s opinion that the international community should have only an advisory role in implementing these judgments, we think that the OHR should take a more active role, including the authoritative implementation of these judgments in the B&H Constitution – regardless of the will of ethnopolitical parties.
Ironically, also this appears unlikely to happen. The reason? Well, the OHR itself has an interest in keeping things as they are as only the fragile, formalized balance between the three ethnic groups provides the soil for the OHR. In other words, if B&H would indeed become a self-sufficient democracy, the OHR would be obsolete. But, it seems, in our perception, that the OHR defends its position to stay in B&H. The collective rights of the constituent peoples in B&H do not impact the preservation of peace. Instead of that, the collective rights manifest political division of the state and undermine democracy. The political division of the state and ineffective democracy are the reasons why B&H still needs the OHR to preserve peace and will need it as long as B&H does not implement the ECtHR’s judgments that they will make it an effective (self-sustainable) democracy. By the non-implementation of the ECtHR’s judgments, the OHR gives the reason to stay in B&H, and in that manner defends its position. Without the active role of the OHR in implementing the ECtHR’s judgments, they are false hope for democracy in B&H.
Brief rejoinder to Benjamin Nurkić and Admir Isanović and their piece on “False Hope for Democracy in Bosnia & Herzegovina”
First of all, I very much appreciate the comment on my piece (Woelk, 2023) and hope that it will start a debate on how to implement the ECtHR’s judgments (Sejdić-Finci and other cases) and, more generally, how to bring about constitutional change in BiH.
Any democratic system is about adjusting balances from time to time; this is especially pertinent to federal or multilevel constitutional systems. A permanent status quo is simply not an option in a changing world. Adaptiveness is key. The apparent stability of the status quo conservation is an illusion, which has been (and still is) – admittedly – comfortable for many. It is true that ethno-national parties in BiH as well as the EU have nurtured this illusion for the last 15 years. But it is also true that the recent geopolitical events have changed the picture considerably, even leading to a reanimation of the enlargement process. It remains to be seen whether the EU can deliver on its own reforms which are a precondition for any enlargement. And they are a challenge at least as important and difficult as is constitutional change in BiH.
True, I am an optimist. And I do see, of course, that ethnopolitical and other actors in BiH do not have a real interest in implementing the judgments, so far; otherwise, the system would have been changed already. The question raised by the recent Kovačević judgment is exactly the sustainability issue: Can constitutional guarantees for groups (still) justify the infringement of individual rights, as a general rule? And block the democratic transformation of the country? But this is also and exactly the reason, why no ‘shortcut’ to reforms is possible, i.e. relying on the High Representative’s extraordinary powers for imposing the changes necessary for implementation or even a new Constitution (and which exact changes, which Constitution?). Any imposition by the High Representative means one or two big steps back on the famous road from Dayton to Bruxelles, as it underlines the country’s incapacity to act and its continuous reliance on foreign actors.
The question of implementation must be seen together with the European Commission’s assessment that BiH cannot become a Member State with the current Dayton Constitution. “Constitutional ownership” is required for the end of transition, i.e. an act coming from within the country either accepting the Dayton Constitution (which would therefore no longer be perceived as “imposed”) or deliberately changing it. Clearly, the first option would violate BiH’s obligations resulting from its Council of Europe membership and block future EU membership. By contrast, implementing the judgments would prove that the rights of people (and not only those of the constituent peoples) are protected seriously. It would also be a proof of the country’s autonomous evolution. In fact, local actors need to (learn to) rely less on the international community or take responsibility. After all, this is part of the legitimation process.
In addition, there is also the important legal question of whether the High Representative can legitimately impose changes regarding the Dayton Constitution at all (by contrast with the Entity Constitutions in case of non-compliance with the State Constitution). The recognition of the Bonn powers has certainly been an ‘upgrade’ from a moderator’s role to an active part, but this does definitely not include a ‘Kompetenz-Kompetenz’, i.e. the power to freely change the very foundation of the field of action.
By contrast with Nurkić and Isanović, I do not think that the High Representative only wants to perpetuate his position in BiH. The International Community and the European Union (must) have an interest in a stable, democratic, and sustainable BiH. But they need to convince themselves that the consolidation of ethnopolitical rule in BiH has led and will lead to the opposite. Therefore, they need to take concrete measures for inducing a process leading to change and for supporting this process. And they must be clear about the negative consequences of non-implementation and of the status quo. This should include clarity in contrasting those who do not want change (and European values). But it cannot include imposing the changes themselves.
Change, I insist, needs to come from within BiH, if the country’s constitutional transition is ever to end.
First of all, I appreciate your reply to our piece. I would like to briefly answer to your comment. I agree that “adaptiveness is key” but as we showed in our piece, the B&H Constitutional order is not adaptive. In the time of COVID-19, the House of Peoples blocked the stipulation of the new Law that would regulate how B&H, as a state, can buy vaccines on the global market.
Regarding the EU enlargement, I have not seen yet how the war in Ukraine has impacted this process in the context of Bosnia and Herzegovina. Of course, we can discuss the jurisdiction of the High Representative in implementing the ECtHR judgments, and in our piece, we tried to offer arguments as to why the HR has jurisdiction to implement them. I am not a pessimist, but I think that without the active role of the international community, these judgments will not be implemented, since almost all political-sensitive judgments, including on the constituency of peoples were implemented by the HR.
Therefore, I cannot see how the change will come from within the country, but I understand your standpoint on this.