Despite months-long negotiations between Bosnia and Herzegovina’s (BiH) politicians from two ethnic backgrounds regarding the new shape of an electoral law in the smaller entity of the country, there is no viable solution in sight ahead of the 2018 general elections. Croatian and Bosniak leaders need to agree on a new electoral law based on the 2016 decision of the constitutional court. On many occasions, external political actors have championed the Croatian Democratic Union (HDZ) proposal. However, this proposal is damaging to Croatian political representation, the functioning of the state, and ultimately, BiH’s European Union aspirations. The EU has facilitated talks between the parties to come to a solution thus far, but it is time for a more assertive stance. The EU must be vocal in criticizing the effect that this proposal would have on Bosnia’s EU aspirations and push for viable alternative proposals.
In December 2016, the BiH Constitutional Court ruled in favor of the Ljubic appeal and mandated amendments to the electoral law that would enable genuine political representation for Croats in the House of Peoples of the Federation of BiH (FBiH) – the upper chamber of one of the two entities in the country. As it stands now, Bosniaks can vote in Croatian representatives in the House of Peoples. Since the Ljubic appeal, negotiations have been on-going between the two main ethno-national political options; the Croatian Democratic Union (HDZ) and Party of Democratic Action (SDA). HDZ, led by Dragon Covic, first initiated a proposal for consideration that would amend the law and then resorted to outside lobbying efforts to give its proposal an extra push. In Brussels, some Croatian MEPs in the European Parliament that belong to the party of the same name in Croatian domestic politics, champion the proposal by all means. These lobbying efforts proved to be effective as Politico purported HDZ leader Dragon Covic to be “the bright spot of Bosnia’s electoral reform” and a “man of compromise” who seeks fair representation for his people. However, upon further examination, this perception is deceiving because the proposal actually turns out to be quite damaging.
The Forgotten Decisions of the ECHR
In addition to overstepping the constitutional court decision, in that it includes provisions on amending the tripartite presidency, another institution in the country, the proposal stands in stark conflict with previous decision of the European Court of Human Rights (ECHR). In a nutshell, these ECHR decisions require the country to dispose of a political system that only permits three constituent peoples political power, and opt for a system that empowers minorities such as Roma and Jews. Prior to the ongoing constitutional saga, Bosnia’s EU path was severely hampered by the failure to reform the political system primarily based on the Sejdic-Finci decision. While the implementation of the decision was critical to the accession, following years of stagnation, in 2014 the European Union opted to change course with a new strategy that would postpone implementation of the decisions for the time being while focusing on more pressing economic issues. The court decisions will eventually have to be implemented before EU accession – it has not left the reform agenda, it was just pushed over for a latter date. The HDZ proposal disregards the content of the above-mentioned decisions, and instead opts for an electoral model with three electoral districts within FBiH, in which only Croats and Bosniaks can submit their candidacy for office.
Additionally, the proposal is damaging to Croatian political representation in the country. It neglects the voices of Croats in non-Croat dominated regions of the country, as the Croatian political leader would be selected from the main Western Herzegovina cantons. In other words, only a fraction of Croats in the country (electoral district B) would determine a leader, whereas those in other areas of the country would have no say. If you count in the fact that Croats are underrepresented in Republika Srpska – the other entity in the country – it represents a serious issue of representation. Not coincidentally, the deciding region of the country coincides with the most fervent support for HDZ, making it clear that the proposal is, in reality, a power grab attempt that would ensure a HDZ monopoly over Croatian political representation for years to come.
Barriers to Legislative Compromise
Lastly, the proposal would only make it harder to reach compromise as it entrenches the existing ethno-national setup of the country. In past years, the ethnically based vetoing system made it hard to pass legislation. A more ethnically based state would only further make this worse. To make Bosnia a functional state, the Venice Commission and the European Commission have embraced a Građanski princip or civic principle that would guide the setup of the country.
There is, of course, a shared responsibility that rests on the shoulders of European Union officials to resolve this crisis. In general, while they steer clear of taking sides, and instead opt to facilitate negotiations, provide technical expertise, and call on both sides to come to an agreement, they will eventually have to summon the courage to outright say that the HDZ proposal is incompatible with the country’s EU ambitions, the Venice Commission’s recommendations, and the ECHR decisions. A clear name and shame strategy is at their disposal and has already been used by some members of the wider international community and individual EU member states. Perhaps they could lead the way more assertively by pushing for an alternative proposal, such as the one proposed by two multi-ethnic BiH opposition parties. The proposal is compatible with all principles and allows for genuine participation. Perhaps they could even push for a one-time regulation that would elect delegates to the House of Peoples, but would be succeeded by a broader electoral reform.
There is a lot at stake here – Bosnia is a clear target to outside powers whose models of governance and values collide with those of the European Union. It is worth reconsidering the notion that it may seem preposterous to attach such importance to a country of only 3 million. The 1990s serve as a grave reminder of what happens when ethnic-related political crises and power plays spiral out of control.
Damir Kurtagic is a Europe Fellow at Young Professionals in Foreign Policy (YPFP). He is a Brussels-based scholar and has previously worked with the European Economic and Social Committee, the UN Development Program in Bosnia & Herzegovina, and the UNIDO headquarters in Vienna. Damir earned his BA in International Relations from Carleton College, and his MA in Advanced International Studies from the Diplomatic Academy in Vienna as a Rotary Scholar.
Photo credit: Bundesministerium für Europa, Integration, und Äußeres via FlickrAuthor : YPFP