One roadblock at a time for Bosnia and Herzegovina’s EU path
This Clingendael Spectator series “Western Balkans In Focus” gives an inside perspective into the wobbly path of the Western Balkans six (WB6; consisting of Albania, Bosnia & Herzegovina, Kosovo, North Macedonia, Montenegro and Serbia) in their ambition to join the European Union. In this second contribution, Sanja Ramic and Maarten Lemstra analyse one of the most significant roadblocks for Bosnia and Herzegovina (BiH) on its path to EU candidacy: the requirement of constitutional reform.
Constitutional reform in Bosnia and Herzegovina (BiH) is years overdue.1 Long demanded by the EU as part of BiH’s EU perspective, the main political parties have failed to agree on reforms to bring the constitution in line with several European Court of Human Rights (ECHR) judgments in the past ten years.2 In these cases, the ECHR ruled that BiH’s constitution is discriminatory, but attempts to reform the constitution have thus far failed.
The political parties that have been in power since the 1990s are unable to cooperate and solve structural problems. Instead, they use ethno-nationalist rhetoric to present themselves as protectors of one of the three constituent peoples, while simultaneously enriching themselves over ordinary citizens.
This article assesses how the EU can better urge BiH to reform the country’s constitutional structure. It argues that the current constitution reinforces ethnic cleavages that have been pervasive in BiH society and that constitutional reform is necessary for BiH to move away from a state based on ethnicities and become a state based on equal citizens. The EU should support reform-minded actors and use both strict positive and negative conditionality to ensure that reform, difficult as it may be, is implemented.
BiH’s constitution: an imperfect compromise
BiH’s current constitution dates back to 1995, when it was added as an annexe to the Dayton Peace Agreement. While it succeeded in establishing peace, it came at the cost of strengthening the dividing lines between Serb, Croat, and Bosniak ethnicities in BiH.
In this agreement, BiH was divided into two entities: The Federation of BiH, mostly inhabited by Bosniaks and Croats, and Republika Srpska, with a predominantly Serb population. According to the constitution, the composition of the presidency exists out of three rotating members: one Bosniak and one Croat, each directly elected from the Federation of BiH, and one Serb directly elected from Republika Srpska.3
Currently, a citizen may only run for a seat in the presidency by aligning him or herself with the dominant ethnic group in the part of BiH where they live. Furthermore, the preamble of the constitution differentiates between them and the ‘others’: Jews, Roma, other minorities and citizens who have not declared their ethnicity.4 The ‘others’ are not allowed to stand as a candidate, although they can still vote in the elections.
The Sejdic-Finci v. BiH case at the ECHR
Two BiH citizens, Jacob Finci, a Jewish Bosnian, and Dervo Sejdic, a Bosnian of Roma origin, tried to run for BiH’s presidency and the House of Peoples of the Parliamentary Assembly.5 The Central Election Commission informed them that, given their Jewish and Roma backgrounds, they were not eligible to stand for election to BiH’s presidency and the House of Peoples.
The two men appealed to the ECHR in 2006. The Court held that BiH’s constitution violated the European Convention on Human Rights. In the next few years, three further ECHR-judgments have pointed out that it is unacceptable to have a political system granting special rights to particular ethnic groups, in their jargon, “to the exclusion of minorities or citizens”.6
The rulings have obligated BiH to change its legal system accordingly and form an electoral system without ethnic discrimination. Enabling someone who is Jewish, Roma, or has not declared any affiliation to run for president would be the most democratic solution, but such an overhaul of BiH’s post-Dayton governance model has proved to be highly problematic.
How BiH’s constitutional deadlock is holding the country back
Ending this discrimination is vital for moving BiH towards a political system based on the rule of law. It would also represent a step away from BiH’s pervasive ethno-nationalist discourse. Current politics is often deadlocked by politicians who quarrel with each other while upholding a clientelist system along ethnic lines. After the elections in October 2018, for example, it took 14 months to form a government; time which should have been spent fixing the many challenges that BiH faces.
A recent report on the situation in BiH by the European Rapporteur for the State of Justice, Reinhard Priebe, also points to the importance of constitutional reform.7 Priebe states that the current constitution is not suitable to bring BiH on the road to EU integration, nor to make progress in consolidating as a stable democracy based on the rule of law.
The current constitution is not only discriminatory, but it is also politically problematic for two reasons. Firstly, it stimulates division, in terms of reinforcing the ethnic character of the government in BiH. The current constitutional framework together with ethnic division has led to the fact that, in practice, entities within BiH have become ‘mini-states’ with their own legislative, executive and judicial powers.8 In fact, being affiliated to a particular ethnic group has become more important than to be a citizen of BiH at large.9
One of the most shocking examples of this ethnic fragmentation can be found in the education system. In the Federation of BiH, there are examples of ‘two schools under one roof’ that describe a situation where children from different ethnic groups – Croats and Bosniaks – attend classes in the same building but are physically separated and taught separate curricula.10
Secondly, with politics focussed on what divides the citizens of BiH, rather than what unites them, there is a lack of attention given by politicians to the content of policies. Instead of serving narrow, clientelist interests, BiH’s politicians could be focussing on policies that increase public welfare for all citizens.
Hopeful signals for change?
There are signs that voters seek change and wish to be represented by politicians who speak for more than their narrow ethnic group. An example of actors seeking to break the dominance of ethno-nationalist parties is a party that appeared on the political scene in 2008, called Nasa stranka (Our Party).
Its party programme is based on the idea that collective rights should not take precedence over individual rights, thus opposing an ethnically based decision-making process. In both general and local elections, this party recorded a significant electoral increase, which shows that they should be recognised as a factor to consider.
Another case is that of the campaign of Zeljko Komsic for the BiH presidency in 2006. His campaign was based on the premise that, although being Croatian, he would represent all citizens of BiH. The campaign propagated by Komsic, who ran for the multi-ethnic Social-Democratic Party (SDP), won many voters in the Federation of BiH, which brought him an election victory.
However, it also raised great concern among the Croatian political parties such as the Croatian Democratic Union (HDZ), who argued that his election as the Croatian member of the BiH presidency has marginalised their constituency and legitimacy in BiH.
This led to Croatian demands for further federalisation of BiH. While this case partially shows a positive development, the discussions on further federalisation it triggered have also distracted attention from the necessary constitutional changes. This case thus also shows the deep divisions BiH still faces.
Inaction on both sides would risk the creation of political and economic laggards in the Western Balkans
As such, in BiH, there is some support for politicians who wish to represent all citizens and not just their narrowly defined ethnic group. While it is an encouraging pulse, the potential of these initiatives is still limited by the current electoral system.
The EU response so far
The EU has continuously set constitutional reforms and the implementation of the Sejdic-Finci case law as a (pre)condition of BiH’s accession to the European Union: a failure to implement constitutional reforms will prove a real obstacle to BiH’s further integration into the EU.
Since 2005, several initiatives, most notably the ‘April Package’11 in 2006 and the ‘Butmir Process’12 in 2009, have failed to reach an inter-party agreement on reform. Since 2014, a less vigorous process has been conducted in which constitutional reform is expected to be implemented as part of the process of socio-economic reform.
Considering how clear Priebe’s recent report was on how the lack of constitutional reform is holding the country back, it is surprising that this has not led to enough political pressure to resolve the problem. The EU must heed the call for intensive support from the international community of the report; not to absolve BiH itself of responsibility, but to support forces in BiH who seek positive change.
Negative conditionality should also be applied to put pressure on political elites
Inaction on both sides would risk the creation of political and economic laggards in the Western Balkans, continue a focus on what divides citizens of BiH rather than what unites them, and continue to subsidise a dysfunctional, discriminatory state with EU funds that could otherwise also be spent elsewhere.
Overcoming roadblocks: the EU’s role in BiH’s constitutional reform
The EU might not be able to solve BiH’s constitutional crisis on its own, but it can still provide clear political support to those who are willing to do so. Attaching serious positive conditionality in the form of additional support for the country could be an incentive for politicians to open a genuine dialogue and overcome disagreements. Reform of BiH’s constitution represents a substantive adjustment of BiH’s political system, which should therefore be matched by significant benefits.
On the other hand, negative conditionality should also be applied to put pressure on political elites to finally finish this constitutional reform before the elections of 2022. It should be clear that the EU takes constitutional reform very seriously and that less progress in this area will also result in less support for the political elites who continue to profit from the clientelism along ethnic lines, which the current constitution helps keep in place.
What is necessary is a recognition that constitutional reform in BiH is not merely a technical or legal matter, but is in fact highly political, as it is linked to the clientelist system of patronage and even state capture (systematic political corruption), with which corrupt politicians have managed to stay in power.13 The political nature of this reform then also requires a more political approach from the EU, less focussed on purely technical matters, and more focussed on empowering actors who deserve the support of the EU.
By remaining to put pressure on this issue, the EU also makes it crystal clear that BiH’s elites will have to answer to their voters if they continue to postpone reform, which also delays their candidacy for EU membership.
It is becoming increasingly clear that any solution to solve BiH’s discriminatory constitution will have to be found in BiH itself. However, the EU and its allies are in a unique position to provide external support for reform-minded actors in BiH who want to push for change.
There are examples of BiH politicians who seek to dismantle the ethnic division lines and clientelist networks. It is precisely these actors and civil society organisations that the EU should support. Such a strategy requires the EU to adopt a more political approach than it has so far dared to use.
The importance of implementing the Sejdic and Finci v. BiH judgment is not limited to the important role that non-discrimination and equality play within a system based on the rule of law. It would also mean a step away from the ethno-nationalist discourse, which has kept BiH politically dysfunctional over the past years.
Only a political system responsive to the needs of every citizen, and not just of a politician’s respective ethnic group, can provide effective policies to deal with BiH’s many challenges. Empowering change-minded actors within society combined with a mixture of positive and negative conditionality can provide a high return on investment for the EU if this allows BiH to put itself back on track to its candidacy for EU membership.
- 1German Federal Government, ‘Western Balkans: strengthening European Perspectives’, 13 August 2018; European Commission, ‘Key findings of the Opinion on Bosnia and Herzegovina's EU membership application and analytical report’, 29 May 2019.
- 2‘Sejdic and Finci v. Bosnia and Herzegovina’, 22 December 2019; European Commission, ‘Commission Opinion on Bosnia and Herzegovina’s application for membership of the European Union’, 2009.
- 3See: ‘Article V of the Constitution of the Bosnia and Herzegovina’.
- 4See: ‘Constitution of the Bosnia and Herzegovina’.
- 5The upper house of the BiH parliament
- 6ECHR, ‘Zornic v. Bosnia and Herzegovina’, 22 December 2009; ‘Pilav v. Bosnia and Herzegovina’, 9 December 2015; ‘Slaku v. Bosnia and Herzegovina’, 26 May 2016.
- 7Reinhard Priebe, ‘Expert Report on Rule of Law issues in Bosnia and Herzegovina’, 5 December 2019.
- 8See: European Commission for Democracy through Law, ‘Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the high representative’, 2005, p. 3, para. 6; Newbury and Kitelman, ‘Report on local and regional democracy in Bosnia and Herzegovina’.
- 9UNDP, ‘The Silent Majority Speaks’, 11 July 2014.
- 10BIRN, ‘Bosnia: No End to ‘Two Schools Under One Roof’, Balkan Insight, 18 February 2010.
- 11Consultations between the leaders of the main political parties in Bosnia and Herzegovina, facilitated by the United States and with the constant advice of the Venice Commission, resulted in a political agreement on constitutional reform which was finally reached on 18 March 2006. The reform package provided, inter alia, for an increase in the number of members of parliament in the state-level House of Representatives (from 42 to 87, with 3 seats reserved for the first time for members of non-constituent peoples, the so-called ‘others’). The parties agreed that there is no replacement of the three-member presidency with a single president but they decided to alternate membership of the three-member presidency, to create the rotating positions of president and two vice-presidents, and to leave it to state parliament to nominate and elect the presidency’s members.
- 12Three years after the ‘April package’, the US and the European Union initiated, in October 2009 on the Butmir military base outside Sarajevo, new negotiations were called the Butmir package. This was an effort to salvage some elements from the April package.
- 13Heinrich Böll Stiftung, ‘Perspectives Southeastern Europe: Captured States in the Balkans’, 2017, issue no. 3, p. 15.