An illiberal putsch attempt in Bosnia

The imposition of an electoral law reform on election day in Bosnia threatens to undermine Bosnian democracy.

European Union High Representative for Bosnia and Herzegovina Christian Schmidt speaks during the handover ceremony in Sarajevo, Bosnia and Herzegovina August 2, 2021. REUTERS/Dado Ruvic
The role of the High Representative for Bosnia and Herzegovina is to safeguard the Dayton Accords [File: Reuters/Dado Ruvic]

The results of Bosnia and Herzegovina’s October 2 general election, the eighth since the conclusion of the 1992-1995 Bosnian War, saw the country’s citizens deliver shock defeats to segments of the ruling nationalist oligarchy.

Bosnian post-war politics have been dominated by a clique of nationalist parties which have maintained power by fomenting sectarian divisions, while presiding over vast patronage networks which helped further cement their grip on the populace. But after nearly three decades of growing social and economic stagnation and decay, Bosnian voters clearly delivered mandates to disparate coalition of reformist actors.

But these democratic breakthroughs by Bosnian voters were marred by the inexplicable decision by the country’s top international envoy, High Representative Christian Schmidt, to impose wide-ranging amendments to Bosnia’s election law only minutes after the polls had closed on Sunday.

In doing so, Schmidt helped deliver an extraordinary monopoly on power to one of the nationalist parties making up the ruling oligarchy.

Reformist victories

The Bosnian constitution, an annex of the US-brokered Dayton Peace Accords, which ended the war in the 1990s, is often referred to as the most complex political system in the world, a regime characterised by elaborate power-sharing mechanisms, nearly all of which are allocated according to a rigid ethno-sectarian key. Rather than creating incentives for rational and conciliatory governance, the Dayton constitutional regime has empowered extremist nationalists, and resulted in nearly a quarter century of political gridlock and sustained crisis.

Ostensibly set up to maintain political parity between the three primary ethnic communities, Bosnia’s constitution is highly discriminatory and promotes ethnic divisions. As a result, wide swathes of it have been struck down by both the country’s own Constitutional Court and the European Court of Human Rights (ECHR), all primarily on the grounds of discrimination, especially against Bosnians who do not identify with one of the three main ethnic communities – the Bosniaks, Serbs, and Croats – referred to as Bosnia’s “constituent people” in the country’s constitution.

Since the first of these landmark rulings, Bosnian politics has increasingly become dominated by the dispute between civic-oriented reform parties and the hardline nationalist forces over the desire of the latter to preserve and deepen the existing ethno-sectarian framework.

It was the growing mobilisation of the civic movement that helped reformist forces make significant gains in the October 2 vote at the expense of nationalist hardliners, although the latter still retained the highest number of votes in the legislature.

Bakir Izetbegovic, the longtime leader of the main Bosniak nationalist party, the SDA, was defeated by Social Democrat Denis Becirovic for the Bosniak seat on the tripartite state presidency. Zeljko Komsic, himself a former Social Democrat and now head of the civic-oriented Democratic Front party, won re-election for the Croat post on the body, defeating a candidate from the largest Croatian party, the HDZ.

Becirovic and Komsic both won their posts in the Federation entity, one of the two primary administrative units created after the Bosnian War, and in which most of the country’s Bosniak and Croat communities live. Their victories mean that for the first time in history the majority of Bosnia’s executive will be composed of left-wing, anti-nationalist members.

In the Serb-dominated Republika Srpska entity, Zeljka Cvijanovic of the Serb SNSD party, which has governed the entity since 2006, handily won her race for the Serb post on the state presidency. But her boss, hardline separatist Milorad Dodik, won a much closer race against another Serb nationalist, albeit one running on a broadly anti-corruption agenda.

An illiberal putsch attempt

According to the Dayton Accords, the Office of the High Representative (OHR) exists to safeguard the agreement, as well as the country’s sovereignty and territorial integrity, to which end the High Representative is imbued with expansive executive authorities.

It was these powers that Schmidt used to amend the country’s election law on October 2. It was an extraordinary development, more akin to an illiberal putsch attempt than anything even vaguely resembling the practice of democratic reform in a European country in the 21st century.

The various rulings by the Bosnian Constitutional Court and the ECHR necessitated reform of the electoral law. But Schmidt imposed legal changes without even giving an opportunity to the new cohort of the country’s parliamentary assembly to deliver a reform package of its own. In July, an attempt to deliver a virtually identical package of amendments led to mass public protests in front of the OHR’s Sarajevo headquarters and near universal condemnation by local civil society and political leaders, and a broad coalition of legislators in nearly all major Western capitals.

Aside from the profoundly illiberal manner in which Schmidt acted, which one Dutch elections observer referred to as a “slap in the face of so many” in Bosnia, it is the actual substance of his amendments that is most alarming.

The entirety of Schmidt’s intervention focuses on implementing the so-called Ljubic ruling by Bosnia’s Constitutional Court. He did so despite the principle of primacy of the European Convention on Human Rights over all other domestic laws clearly stated in the constitution and, implicitly, legal rulings, which suggests that the Ljubic case is a less of an immediate priority for implementation than the rulings of the EHCR. Moreover, Schmidt’s decision went back on an opinion by his predecessor which concluded that the Ljubic ruling had technically already been implemented in 2018 by the country’s Elections Commission.

Schmidt opted to decouple the Ljubic ruling from the remaining seven outstanding constitutional rulings by Bosnia’s courts and EHCR, which sought to protect minority, language and political rights and which collectively gesture at the necessity for a far more expansive set of reforms to bring the country’s constitutional and electoral regime in line with EU and Council of Europe standards.

Ljubic is a narrow and technical ruling, one which if implemented in isolation from the others, would further entrench the country’s existing sectarian regime and move Bosnia further away from its EU and NATO membership ambitions.

Specifically, Schmidt has changed the formula for the appointment of delegates to the upper chamber of the Federation entity parliament, the House of Peoples. Although his intervention was promoted as a change that would give the minorities more rights to be represented, it in fact delivered a permanent monopoly to the HDZ in the chamber’s Croat caucus, and thus the entire chamber as only two-thirds of one caucus is required to invoke a veto.

This monopoly is critical as it will allow this single party, which only won approximately 15 percent of the national vote, to hold up virtually all legislation and government formation – as they have done for much of the preceding four years – without any evident route to circumventing their dominance. This is because the constituent peoples’ caucuses in the House of Peoples enjoy expansive veto powers over nearly all legislation, a fact which Schmidt’s ruling largely leaves in place, despite some minimal amendments to the existing veto format.

And while the HDZ already enjoyed a practical hegemony over the chamber, the formula for constituting the body was such that there was at least the theoretical possibility for circumventing a complete monopoly by the HDZ, a fact which moderate and civic-oriented parties had increasingly come to rely on to dislodge the party from power. That possibility has now been eliminated as a super-majority of the seats in the newly expanded Croat caucus will actually come from the HDZ’s electoral heartlands.

A less stable Bosnia

By its own admission, Croatia’s government has worked closely with Schmidt to realise these amendments to the explicit partisan benefit of its clients in the Bosnian HDZ. Media reports have indicated that Zagreb had written large parts of the OHR’s original draft of these amendments. Thus, despite having lost their race for the Bosnian presidency, Croat nationalist leaders in Bosnia and Croatian government officials were obviously, palpably overjoyed at the night’s developments. And rightly so: Bosnians voted for progress, but Schmidt decided to cement the status quo.

By any objective measure then, the High Representative has fundamentally violated his mandate, not only by, arguably, going against the writ of the country’s constitution as concerns the primacy of the European Convention on Human Rights. But more substantively, by acting to categorically empower an extremist party that has spent months threatening violence, years holding up government formation, and explicitly coordinating its moves with the secessionist SNSD, while enjoying the benefaction not only of Zagreb and Budapest but also increasingly Moscow and Russian-allied Belgrade.

Rather than addressing any meaningful aspect of Bosnia’s years-long political and constitutional crisis, Schmidt has strengthened the hand of those most responsible for holding the country back. And he has done so on a night during which actual Bosnian citizens had clearly demonstrated their growing opposition to the country’s artificially entrenched nationalist establishment.

The precise details of the coming political fallout remain to be seen. But one thing is clear: Bosnia is now less stable thanks to the actions of the High Representative. Schmidt has rewarded extremism and maximalism and objectively disincentivised compromise and moderation among both local and regional leaders. Bosnia – and Europe – will feel the consequences of this disastrous decision for years, if not decades, to come.

The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.