The EU is ill-prepared to pull Bosnia and Herzegovina back from the brink of its most serious political and constitutional crisis since the war. It is thus high time for the Union to get serious.
Bosnian Croat leadership on course to throw Bosnia and Herzegovina into electoral chaos
As Bosnia and Herzegovina (BiH) prepares for general elections in October 2018, the European Union is currently experiencing the boomerang effect of its inconsistent policy approach towards the Western Balkan country. Three years ago, the EU, based on a joint German-British initiative, shifted the focus of its policy in BiH towards socio-economic reform. It declared other core political issues, first and foremost reform of the Dayton constitution that forms the post-war basis of an institutionally dysfunctional state, to be “intractable”, and thus kicked them down the road in order to end a decade of reform deadlock, including on European integration. Still, as the new EU BiH initiative, including its centerpiece, the so-called Reform Agenda, generated some limited reform momentum, some of those “intractable” issues frequently appeared along the way, undermining reform efforts. EU officials characterized them as “distracting” issues. 2017 saw the campaign for the October 2018 general elections starting earlier than any previous, post-war elections, threatening to entirely derail the reform dynamics. Moreover, one such distracting issue that emerged in 2017 could lead to the upcoming elections ending up in the most serious political-institutional, constitutional crisis of postwar BiH. It is an issue that is forcing the EU to confront once again precisely those issues it declared distracting and intractable.
The Constitutional Court ruling in the Ljubić case
In December 2016, the Constitutional Court of BiH (CC BiH) ruled largely in favor of a request submitted by Božo Ljubić, a failed opponent and later ally of the leader of the major Bosnian Croat party HDZ BiH, Dragan Čović, by annulling several articles of the BiH Election Law related to the second chamber of the Federation of BiH (FBiH) Parliament. In its ruling, the CC BiH rejected some of the principles as well as the mathematical formula for the election of delegates of the so-called constituent peoples (Croats, Serbs, Bosniaks) to the House of Peoples (HoP) by the FBiH cantonal assemblies. As political party leaders can’t agree on an amendment to the BiH Election Law that would replace the annulled provisions, BiH risks entering the upcoming general elections with a legal gap that will have wide-ranging legal, institutional and political consequences. If the gap is not filled, there may be no basis after the elections for cantonal assemblies to elect delegates to the FBiH HoP. As a consequence, not only would the larger of the country’s two entities end up without a second parliamentary chamber, but also without a president and vice-presidents (who are also elected by the HoP). There would also be no second chamber of the BiH Parliament, as two thirds of its delegates from the FBiH are elected from the entity’s HoP. The scenario would present an unprecedented and full-fledged institutional, constitutional and political crisis.
The ruling’s political history
The origin of the current crisis surrounding the BiH Election Law dates back to 2006, when the multiethnic opposition Social Democratic Party (SDP) made a subversive political move by gaming the electoral system. It nominated the Croat Željko Komšić as candidate for the Croat member of the three-member collective state presidency – and he won. Thanks to an electoral system by which the voters in the FBiH elect the Croat and the Bosniak presidency members, but which does not differentiate which citizen of the entity gives his one vote to either of the two presidency members, Komšić was voted into office with a share of Bosniak, not only Croat, votes. This move was legally correct, yet violated the major ethnic parties’ self-understanding and unwritten rule of the Dayton political system that the ethnic seats in the Presidency are reserved for the three largest ethnic parties. It took place, not coincidentally, in the wider context of the EU’s takeover of Western leadership in BiH that was followed by the Union’s surrender of previously enforced red lines. In addition, the SDP’s move demonstrated the chronic immaturity of the BiH opposition – it was a subversive move that lacked any underlying political strategy, but undermined the constitutional-political status quo.
The HDZ’s election defeat triggered an organized political mass hysteria on the alleged collective discrimination against Bosnian Croats in BiH, in particular in the FBiH. This, despite the fact that Croats, as one of the three constituent peoples of BiH, enjoy the rights of equal political representation although they constitute by far the smallest of the three ethnic groups. Also, Croats (and Bosniaks) are really only discriminated against in the Republika Srpska (RS), but the HDZ BiH never seriously complained about it – since RS president Milorad Dodik is a close political ally of HDZ BiH leader Čović. The campaign saw the return of an unfulfilled political wartime agenda – demand for a third, Croat entity in BiH – and for constitutional reform, including reform of the electoral system towards strictly tying voting for ethnically-defined officials to the ethnic affiliation of the voters. Čović’s failed push for constitutional reform over the years led to a shift of policy towards a Plan B approach – de facto constitutional change through the back door of a change in the country’s electoral system. Thus, for example, Čović tried to misuse political negotiations mediated by the European Commission on implementation of the European Court of Human Right’s ruling in the Sejdić-Finci case (the discriminatory exclusion of citizens who are not members of any of the three constituent peoples from certain, ethnically-defined public offices) to discuss other issues such as the election of the Presidency of BiH and state and FBiH HoP members.
The Ljubić ruling’s rationale – for the first time Čović has leverage
The approach taken by Ljubić (HDZ BiH) in his request to the CC BiH precisely mirrored this political Plan B approach. The request aimed at the further ethnicization of the electoral system of BiH, one built not on the constitutional principle of constituent peoples, but on the understanding by the leaders of the main ethnic parties that the Dayton system in fact was a system of “constituent parties.” Ljubić formally argues for setting the principle of ethno-territorial political representation as absolute, but his proposed formula for the election of the Croat delegates to the FBiH HoP Croat caucus reveals a composition dominated by delegates from Western Herzegovinian cantons. Such a composition would ensure enduring political control, even a monopoly, of the HDZ BiH over Bosnian Croat politics and its share of government in BiH, and as a consequence, access to administrative resources needed for its share of the country’s patronage system. Ljubić asked the CC BiH to annul certain articles of the BiH Election Law that determine the procedure and formula for the election of FBiH HoP delegates. He thereby attacked as unconstitutional the provisions of an article of the FBiH constitution that sets forth constitutional principles on which the election of the delegates is based – except for one principle, that of ethno-territorial representation. But he did not request a review of the FBiH constitution. This approach clearly reveals the political aim behind the request to the CC BiH – changing the character of the state of BiH, in particular that of the FBiH, without constitutional reform.
To the surprise of many, the majority of the CC BiH judges (2 Serbs, 2 Croats, 2 Bosniaks and 3 international judges) in their ruling of December 1, 2016, for the most part gave in to the Ljubić/HDZ political maneuver. According to available information, not only did the Croat and Serb judges – traditionally most inclined towards an ethno-nationalist reading of the Law – vote largely in favor of the request, but one and possibly two of the international judges did as well. Without a doubt, this is a worrying precedent, as the three international judges installed in the Dayton constitution have traditionally formed a defensive line against the profound politicization of the CC BiH. In their ruling that annulled the formula and regulation of the election of the FBiH HoP delegates, the majority of the judges accepted Ljubić’s reduced reading of the constitutional principles focused on ethno-territorial representation, thus implicitly rejecting other constitutional principles enshrined in the FBiH constitution. Yet in order to avoid explicitly assessing the constitutionality of the relevant FBiH constitution articles, they opted for a narrow reading of the CC BiH’s competences and limited their ruling to the content of Ljubić’s request – thus basically affirming the Ljubić-Čović political maneuver behind the CC BiH request.
In the wake of the CC BiH ruling which amounted to a virtual hijacking by the HDZ of the CC BiH, a bolstered HDZ in April 2017 submitted a draft amendment for the BiH Election Law to the BiH Parliament. It not only proposes a new system for the election of FBiH HoP delegates along the lines of Ljubić’s request to the CC BiH, but also, among other things, proposes the election of the two Presidency of BiH members from the FBiH based on largely mono-ethnic electoral districts – one in Western Herzegovina in the case of the Croat presidency member. The draft amendment was met with staunch resistance from the other parliamentary parties, including the HDZ’s current Bosniak coalition partners, raising questions about the true aim of the political maneuver. The answer appears to lie in a potential reserve option involving the Central Election Commission of BiH (CEC) which would be triggered in case the political parties cannot agree on how to fill the legal gap in the BiH Election Law. In that case, and after elections are held, the CEC has the authority – never used – to determine the manner in which delegates are elected to the FBiH HoP. The 7-member CEC is composed of 2 members from each constituent people plus a representative of the Others. It appears now that Čović and the HDZ have managed to hijack the CEC just as they did the CC BiH – thanks to Čović’s alliance with Milorad Dodik – and might control a 2+2 majority in the CEC. Yet such a Plan C is highly dangerous and potentially volatile and could lead to serious political miscalculations and political chaos. Any such post-election move by the CEC would most certainly end up in court – and the court that has jurisdiction is not the CC BiH, but the Court of BiH – and that court is much harder to politically control.
The EU’s responsibility for the mess
The European Union is partly responsible for this political mess. Following the US handover of political leadership in the Balkans to the EU in 2005, the Union led numerous constitutional reform initiatives. The result was that reform became an intractable issue, as the initiatives were no more than a tool for the EU to check out politically from BiH. Its agree-among-yourselves/whatever-is-agreed-is-fine approach breathed new life into unfulfilled ethno-nationalist wartime agendas and destroyed any basis for political compromise. It also put the EU today in a handicapped position even if it wanted to deal seriously with core political-constitutional issues such as those which emerged from the CC BiH ruling. It was former Enlargement Commissioner Štefan Füle who accepted Čović’s move to add the HDZ’s Plan B approach to his mediation talks with political leaders on implementation of the Sejdić-Finci ruling, which turned implementation of that ruling into an intractable political issue. The German-British 2014 initiative, which followed the ultimate collapse of Füle’s mediation efforts, gave the EU an opportunity to adopt a new policy approach towards BiH – one which declared as its starting point that constitutional reform is a presently intractable issue. The EU kicked constitutional issues down the EU integration road, and towards the accession negotiations stage – a self-limitation that will now force the EU to make a U-turn in the Ljubić case.
The way forward for the EU
As it looks highly unlikely that BiH political leaders will be able to agree on amendments to the BiH Election Law prior to the October 2018 elections, the EU (with US support) must accept responsibility for what it co-produced and undertake the following tasks to prevent a post-election chaos scenario.
- Apply pressure on political elites, including party leaders, to accept a compromise solution for amendments to the BiH Election Law that will contain the damage done by the HDZ BiH through its hijacking of the Constitutional Court of BiH and (potentially) the Central Election Commission.
To successfully carry out this task, the EU, in cooperation with its main Western partners, must prepare either an amendment or a framework and core elements for an amendment to the BiH Election Law that will protect the principles enshrined in both the state and FBiH constitutions. The amendment must include a provision that defines the regulation of the election of the FBiH HoP delegates as a one-time solution applicable only to the upcoming 2018 election.
- Take steps to preserve and protect the constitutional integrity of Bosnia and Herzegovina, including towards restoring the independence of the Constitutional Court of BiH and the Central Election Commission of BiH, by sending a clear message to the court judges, in particular the three international judges, as well as to the commission members to defend the dignity of the positions they hold.
- Ultimately, a framework must be devised within which a permanent solution to the electoral system can be decided. For this, the EU must urgently start preparing a concept on how to secure meaningful constitutional reform through BiH’s future EU accession process and begin to promote the basic principles and framework conditions for such a process. This is necessary in order to push back against the ambitions of political leaders to use future constitutional reform, at best for the entrenchment of ethno-political, unaccountable, undemocratic rule, and at worst for the ethno-territorial disintegration of BiH that will not lead to the breakup of the state, but to chaos and potential violence.
 I owe this term to my DPC colleague Kurt Bassuener.