11 April 2024

The High Representative Strikes Again

Schmidt is Schmidting

In March 2024, the High Representative (HR) in Bosnia and Herzegovina (BiH), Christian Schmidt, once again used his “Bonn powers” under the Dayton Peace Agreement which, inter alia, enable him to impose substantial legislation. After a dark warning, he enacted a new package of reforms substantially improving the integrity of elections concerning transparency, professionalization, and depoliticization of electoral process. While these reforms reflect the necessary and desirable changes in the process of the EU accession, concurrently resolving a political stalemate, this schmidtian mode also creates further political cleavages. Nevertheless, arguably a “Smith” has found a fairly clever way forward.1)

A word of warning

Already in December 2023, the HR starkly warned the representatives of the central level legislature to finally change the Election Law of BiH or he would do it himself. For years, the adoption of the so-called technical changes or the “integrity package” of the Election Law of BiH fell short of happening for different reasons – mainly of a political nature. The main idea of these changes was to improve the electoral framework by reducing the politicization of the election process. This is in line with the Political agreement on principles for ensuring a functional BiH reiterating that BiH needs to improve its electoral framework based on 14 Key Priorities set out in the Commission Opinion. The key priorities related to elections are associated with the Opinion key priority 1 or European electoral standards and the implementation of OSCE/ODIHR and relevant Venice Commission recommendations.

Nevertheless, over the years, the BiH political leadership could not agree on the electoral reforms and the Parliamentary Assembly of BiH consequently rejected the integrity package of electoral standards. The Central Electoral Commission of BiH, the administrative body for regulating and supervising election process, intervened by introducing limited improvements by adopting (highly contested) by-laws. And then came a word of warning. The deadline HR gave was short – only 10 days. His message was authoritative – not adopting the changes is a disrespect to the voters. However, it fell on deaf ears. Seemingly, nobody took it seriously. The deadline was unrealistically short. Also, it was obvious that parliamentary representatives, as always, would refuse any responsibility.

The decision as a preparation

The utilization of the Bonn powers, initially (re)used during the 2022 elections, thereby received yet another sequel. The HR enacted the decision in March 2024, soon after the European Council decided to open European Union (EU) accession negotiations with BiH. After the “functionality package” in October 2022, the HR imposed the new “integrity package” of reforms introducing a large scope of improvements. In the words of the HR, the improvements include transparency regarding voter registration, the integrity of voting oversight and vote counting, professionalization of election committees, electronic voter identification, video surveillance, electronic ballot counting, the independence of the Central Election Commission, the incompatibility of functions, transparency of campaigning and media financing, etc. The idea was to introduce and test selected solutions for the 2024 Municipal Elections to fully prepare for the 2026 General Elections.

Material aspects: a balanced improvement

Content-wise, all of the changes seem logical and related to the requirements of the EU accession. These changes seem to introduce two important aspects. First, by introducing norms about the incompatibility of functions, the HR reestablished the balance between executive and legislative power in BiH. In the Federation of BiH, the legislative and executive branch elected for the 2014-2018 term remained in power after the 2018 elections for the 2018-2022 term in a so-called technical mandate due to the inability of political parties to reach an agreement about forming a new government. Importantly, trias politica – the horizontal division of powers, was blatantly ignored. Some ministers who were, in the meantime, elected as members of the parliament and vice versa, simultaneously held both functions in the legislative and executive branches. It goes without saying that this is against the principle of the rule of law.

Second, the respective changes may raise the trust in the system and increase the traditionally low voter turnout. In particular, an electronic ballot counting, disabling organizational or financial connections between members of the electoral committees and political parties, and the regulation of the election campaign. This shapes the constitutional and political system of BiH in a better and more complete way and as such affects the concept of cohesion, which is an integral part of the stability of complex constitutional systems.

However, it remains to be seen how these changes will work in practice. For example, the HR has already published a corrigenda of the decision. Finally, if substantial changes are needed at a later date, the question remains whether that can be achieved through the Parliamentary Assembly of BiH or repeatedly through further interventions by the HR.

Procedural aspects: the HR advances the perceived democratic deficit

Procedurally, the decision causes friction. On the one hand, as always, the embassies of the United States of America and the United Kingdom supported the decision. Even the Dutch embassy which is traditionally reserved, expressed its support for the decision. This naturally stems from the fact that the HR’s decisions are also coordinated between diplomatic representations in BiH. Additionally, the local stakeholders heavily rely on the international actors due to a fairly weak “domestic ownership”.

On the other hand, the EU remained reserved as it recalled that the executive powers of the HR should be used only as a last resort. This is a much sharper response compared to previous lukewarm reactions of the EU to the actions of the HR. Most likely, the reaction is connected to the EU’s previous statements concerning the lack of accountability of domestic stakeholders in pursuing the rule of law reforms. Seemingly, the EU’s response has little to do with the concrete position of the HR but rather with the concepts of democracy and the rule of law. BiH is a democratic state, based on representative democracy. Accordingly, in the elections, the people democratically legitimize representatives (input legitimacy) who make decisions for them (output legitimacy). If there is a body that is democratically legitimized by the people (Parliamentary Assembly of BiH) but the decisions are made by another body that is not legitimized by the people (the HR), the question of the rule of law arises. This is a logical and legitimate question of the BiH situation in Western democracies. The EU often implies the local actors must abandon their passive role and embrace accountability. Corespondingly, the HR also reiterated this position in his decision.

Nonetheless, the topic of the democratic legitimation and the rule of law is rather avoided in public discussions in BiH due to a simple reason. The President of the Republic of Srpska (RS), Milorad Dodik, and his SNSD party, more often than not, misuse the role of the HR to question the statehood of BiH. Henceforth, the HR is often criticized for undemocratic decision-making.

While the decisions of the HR certainly have a legal foundation in Annex 10 of the Dayton Peace Agreement, the HR has found the way to innovatively acknowledge this criticism. Unlike in the previous cases, the HR left the opportunity for the domestic actors to act. In the respective decision, he called upon the politicians to improve and amend his decision within three weeks. Therewith the HR cleverly advanced the perceived democratic deficit and responded to the previous criticism of democratic (ill)legitimacy.

Political aspects I: quo vadis, Dodik

In 2022, when Schmidt made his first strike, the question was what the use of the so-called Bonn powers actually meant. Before Schmidt, different HRs used the Bonn powers to adopt binding decisions, impose substantial legislation, judicial reforms, and even annul constitutional court decisions. Notably, the HRs also used the Bonn powers to remove public officials from office. Nevertheless, during the 12 years of Inzko’s era, the Bonn powers have barely been used. Although Schmidt (re)used them after the long hiatus, soon, it became obvious that removing public officials from office is not a good strategy concerning the concepts of democracy and the rule of law.

However, it seems that in his latest decision, the HR tried to find a workaround regarding the termination of the political mandate before its official expiry. Amended Article 1.10 of the Election Law of BiH defines that a political mandate can be terminated based on the final and binding court judgment by which the holder of the mandate has been banned from carrying out their activities. From a political perspective, the proceedings against Milorad Dodik are currently being conducted before the Court of BiH. In case Dodik would be convicted, that would be a basis for his dismissal. In other words, the HR does not have to remove public officials from office directly, as he probably never planned, but he, indeed, introduced a new legal framework providing a possibility of their dismissal.

Reacting offensively to HR’s decision, and specifically to the amended Article 1.10, Milorad Dodik initiated the adoption of a new election law in RS. According to this law, elections in RS are conducted independently from the rest of the country. Obviously, this maneuver is not in compliance with the constitutional framework of BiH as there is no legal basis for the adoption of this law. Nevertheless, political implications are profound as the Dodik’s reaction deepens growing distrust between the ethnic communities and their political leaders. Accordingly, the last HR’s decision deepens ethnic and political cleavages.

Political aspects II: shutting down Čović

The leader of BiH Croats, Dragan Čović, and his party HDZ, were also dissatisfied with the “integrity package”. Before the HR announced his decision, Čović and HDZ submitted an amendment to the Electoral Law. The proposed amendment would effectively create a Croat electoral district within the Federation of BiH linked to the “Komšić issue”. Željko Komšić has been elected, several times so far, to the Presidency of BiH as a so-called non-legitimate representative of the Croats since the Croats did not vote for him. With this proposal, Čović was hoping to mitigate the “Komšić issue”. The US Embassy in BiH provided a harsh criticism of the proposal, stating that it has already been rejected during negotiations in 2021-2022 as it is not streamlined with the rulings of the European Court of Human Rights.

Changing the electoral law has long been a political demand of the HDZ. The HR’s “functional package” from 2022 has increased the number of seats in the House of Peoples of the Federation from 17 to 23 per constituent people. At the same time, the “functional package” has seemingly brought more mandates to HDZ in the House of Peoples in the Parliamentary Assembly of BiH. Consequently, it effectively advances the Croats, since the HDZ historically receives the most votes from Croats. Yet, the HDZ has continued to pursue absolute claims regarding the elections. These are not feasible as they would further deepen the political cleavages in the country (among other issues). Since the HDZ already was on the receiving end in 2022, it seems that with the latest decision, the HR decided to put further Čović’s claims ad acta. In other words, it seems that the HR is sending a message that the position of Croats has been sufficiently improved.

The HR has found his mojo

When the HR Schmidt dropped his first bombshell decision on the election eve in 2022, it seemed ad hoc and dramatic due to the very moment in which it was made. Arguably, it also seemed to lack measure. It looked like there was no plan of action or strategy, especially in terms of a sustainable constitutional order in BiH. With the latest impositions, the HR seemingly found his mojo. He can use the Bonn powers to impose legislation but also to (in)directly tackle the democratic shortcomings of his decisions (or at least to some extent). This might mean that Schmidt came to grips with a softer way to address the intricacies of the constitutional settings in BiH. Schmidt is Schmidting.


1 I am greatly indebted to my colleague Jakob Gašperin Wischhoff for kindly adding the Lost Cut to this piece.