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On August 29, the European Court of Human Rights (ECHR) issued a historic ruling against the state of Bosnia and Herzegovina, ruling by a 6-1 majority that the country’s constitution and its dominant land-sharing system ethnic power blatantly violated the fundamental rights to freedom of expression. equal democratic representation. More specifically, the court governed that the Bosnian constitution had unfairly limited the right to vote and be elected for large segments of the population due to a “combination of territorial and ethnic demands” that collectively amounted to “discriminatory treatment”.
The Bosnian constitution is a strange thing. It is not an autonomous social contract but Annex IV of the Dayton Agreement negotiated by the United States and which ended the Bosnian War (1992-1995). As a subsection of an international treaty, the Dayton Constitution is in effect an armistice operationalized as a complex power-sharing system between the country’s three largest ethnic groups: Bosniaks, Serbs, and Croats. As such, the Constitution has always been deeply tied to the country’s relationship with Washington and with international officials who still wield extraordinary administrative powers in Bosnia today.
After the Bosnian genocide, these “constituent peoples” (as the constitution calls them) based their (quasi-)monopoly of political representation on the mosaic of ethnically homogeneous enclaves in which most of the members of the three constituencies now live. So, to be elected to key positions in Bosnia – such as the state presidency or the upper house of parliament, the House of Peoples – it is not enough to simply be Bosnian, Serb or Croat. You must also be Bosnian, Serbian or Croatian and live in a region of the country with a (super) Bosnian, Serbian or Croatian majority. Anyone who does not participate in this arrangement is effectively disenfranchised.
This is not the first time that parts of the Bosnian constitution have been invalidated by the Court. The ECHR has ruled in the same way in 2009, 2014, 2016 and 2020, but its most recent decision, the Kovacevic ruling, is by far the most radical of the lot.
Previous rulings focused on specific discriminatory aspects of the country’s constitutional order, for example the inability of minority groups to run for the country’s tripartite presidency. Slaven Kovacevic, advisor to the Croatian member of the State Presidency, however, argued more generally that the entire Bosnian constitutional regime was an “ethnocracy” that subordinated the rights to participation and representation in the democratic process to ethnic origin and residence of each person.
The court largely accepted this assertion and ruled that Bosnia was obliged to amend its constitution so that even if a “system of ethnic representation is maintained in some form, it should be secondary to political representation.” , that is to say a universal and non-ethnic system. constituted right to participate in the electoral process.
Never has the ECHR ruled so boldly, thus annulling the entire constitutional regime of a country. Even more incredibly, this decision represents a direct rebuke to the Biden administration, which, as recently as April of this year, spent significant diplomatic capital to further consolidate Bosnia’s sectarian constitutional order – which the United States helped create in the first place.
Currently, those who do not belong to or identify with any of the constituent groups – or those who belong to but do not live in corresponding ethnic majority areas – do not have the right to run for office if they are in the wrong region. According to a 2019 Human Rights Watch study estimatethe result was that “400,000 Bosnian nationals – or 12 percent of the country’s population – were barred from running for president of their country or the upper house of its national parliament because of their religion, their ethnic origin or place of residence. »
This is a blatantly unfair and unsustainable situation. But despite previous decisions by the ECHR, very little action has been taken on this subject. Oddly, at the top of this entire system is a top international representative, Christian Schmidt, who enjoys sweeping fiduciary powers that allow him to unilaterally change the country’s laws – and even the constitutions of the entities, the two main administrative units along which Bosnia is divided. But neither Schmidt nor his predecessor chose to use their “The powers of Bonn» to implement any aspect of the ECHR’s judgments, even though almost a decade and a half has passed since the first of the Court’s decisions.
Worse still, on the night of October 2, 2022, minutes after polling stations closed in Bosnia’s last general election, Schmidt used his powers from Bonn to significantly change the electoral law and the entity’s constitution of the Bosnian Federation in order to further improve the situation. deepen the sectarian provisions of the political system in force in the country. Schmidt claimed to unblock the complex process of forming the entity’s government. But it soon became clear that all he had to do was biased in favor of hardline Croatian nationalists, following an aggressive campaign that lasted several years. lobbying campaign by neighboring Croatia to achieve these changes. In April 2023, Schmidt was forced to to modify its own amendments to the electoral law and to suspend the constitution of the entity of the Federation – including its own original amendments – just to sit a government.
Civil rights advocates were outraged. The High Representative, with the explicit support of the UNITED STATES And United Kingdomengaged in extraordinary (post)election engineering while simultaneously ignoring the decisions of the continent’s highest court, whose judgments took precedence over all Bosnian law, according to Article 2.2 of the country’s labor code. own constitution.
Krug 99, the largest civil rights organization in Bosnia, summary » the public fury in a subtle and overwhelming way: “There is a question about the true intention of the Office of the High Representative and the High Representative himself regarding (Bosnia) as a state of equal citizens. »
American officials don’t like this argument. They say it is up to Bosniaks to “compromise” and write a new constitution. But as the ECHR observed, the current regime is categorically unjust and illiberal – and those who benefit from it have no incentive to accept a more open and competitive system. And those currently performing best in the system are the hardline Serbian and Croatian nationalist elements who orchestrated the Bosnian War in the first place. They fear that the adoption of a pluralist and liberal parliamentary system will cause them to lose, through the democratic process, the vast sectarian autonomy that they have won thanks to the crimes against humanity that they committed in the years 1990. Autonomies which, in turn, allowed their benefactors in Zagreb and Belgrade to obstruct virtually all processes of rational governance in the country and turn Bosnia into a true “condominium between Serbia and Croatia, what the nationalists always (wanted) during the war”.
As a result, Bosnians feel increasingly criticized by the Biden administration, which they welcomed as a historic opportunity for the democratic renewal of the country. Far from keeping the president’s promise to consider the defense of democracy as the “defining challenge of our time“, in Bosnia, the administration has redoubled its efforts against the sectarian oligarchy. After the contents of the ECHR’s decision were made public, Kovacevic even accused the former US envoy for “electoral reform” (and still serving at the State Department) official) Matthew Palmer for joking to him: “You, the Bosnians and Herzegovinians, are, after all, Balkanci (residents of the Balkans). Democracy is not for you.
The White House cannot have it both ways. If the defense of democracy constitutes the major challenge of our time, then the ECHR judgments against Bosnia must be implemented. This means that the United States must help the citizens of Bosnia reform the constitution that it wrote and helped impose on them in 1995, and which deprived so many of their basic rights to participation and representation in the democratic process.
If Bosnian officials refuse to engage in good faith in the process, then the United States should both expand its current policy punishments regime against Bosnian leaders and work with the Attorney General to initiate criminal proceedings against those who obstruct the process, for whom appropriate legal architecture Already exists.
Even if this changes nothing, the United States should then make clear that it no longer considers any of the relevant Bosnian authorities to be legitimate representatives of the Bosnian state or citizens and that it will encourage the EU to also suspend any help, any financial financing. or otherwise, in Sarajevo until the constitutional process is concluded in accordance with the rulings of the ECHR. At the same time, the United States should send a message to Zagreb and Belgrade that its involvement in Bosnia’s constitutional process is neither necessary nor welcome, and that failure to respect the sovereignty of the country’s democratic process will result in serious degradation diplomatic relations.
The Biden administration has made its democratic credentials and commitment to the rule of law its signature motif on domestic and foreign policy. In Bosnia, he openly betrayed both. The ECHR’s Kovacevic ruling is an opportunity to revive both Bosnia’s prospects for constitutional reform and the involvement of the United States in this reform.
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