WEBINAR 9: REMEDIES & RENEWAL - Constitutional Reform in Bosnia and Herzegovina: Can We Expect It in The Near Future?
Ajla ŠKRBIĆ
25 November 2020
More than ten years ago, the European Court of Human Rights (ECtHR) delivered its ruling in the Sejdić and Finci case. Even though this judgment confirmed the discriminatory nature of the Constitution of Bosnia and Herzegovina (BiH), i.e. exclusion of those outside the three constituent peoples from key state institutions, this Constitution is still in force. Elected leaders of this country (which have been practically the same throughout all these years) cannot agree among themselves how to bring the Constitution in line not just with this verdict but also with other ECtHR rulings against BiH that followed the Sejdić and Finci case (see, e.g., the Zornić, Šlaku and Pilav cases). The bottom line of all these rulings is clear: all citizens in BiH should have equal rights. Is it so hard to make the Constitution in line with this general principle of the rule of law?
A Little Background
BiH is rather unique when it comes to its constitutional arrangements. This is a result of a violent armed conflict that lasted on Bosnian territory from 1992 to 1995 and ended with the signing of the Dayton Peace Agreement (DPA), with Annex 4 serving as the Constitution for BiH. Primarily driven by the imperative to end the war, the DPA introduced peculiar solutions for the distribution of rights enjoyed by its citizens. Namely, although explicitly securing the enjoyment of the rights and freedoms of all persons in BiH without discrimination on any grounds, the Constitution declares Bosniacs, Croats, and Serbs as ‘constituent peoples’, making them more equal than ‘others’ – those who are not part of these peoples (e.g. Roma). For instance, anyone identifying other than a member of constituent peoples is ineligible to be elected for the state-level House of Peoples or the Presidency.
However, even the constituent peoples are being discriminated against based on the territory in which they live. More specifically, the Presidency is tripartite and has to be comprised of one Bosniac, one Croat, and one Serb. The Serb presidency member must be elected from the territory of the Republika Srpska (an entity within the state with a predominantly Serb population), while Bosniac and Croat presidency members must be elected from the territory of the Federation of BiH (an entity predominantly with a Bosniac and Croat population). As such, every Serb in the Federation of BiH, like every Bosniac and Croat in Republika Srpska, is discriminated against.
Discrimination is visible in all spheres of public life. Civil servants, ministers, prosecutors and others are elected on the basis of their ethnicity, which directly affects the quality of public administration. Even the Institution of Human Rights Ombudsman/Ombudsmen of BiH, which is supposed to protect against discrimination, includes three ombudsmen appointed from three constituent peoples. In sum, the choice is not limited to the best candidate but to the one who has the appropriate ethnicity.
This has led to several ECtHR rulings against BiH, including, among others, the 2009 Sejdić and Finci ruling, which was the first time that the ECtHR declared a constitutional provision of a state party to be in violation of the European Convention on Human Rights (ECHR). However, the needed constitutional and legislative reforms in BiH have not yet been adopted. Therefore, the Committee of Ministers of the Council of Europe characterised this situation as a manifest breach of the BiH’s obligations under the ECHR as well as of its undertakings as a member state of the Council of Europe. Moreover, the ECtHR has stated that the failure of BiH to introduce necessary reforms is a threat to the future effectiveness of the ECHR machinery.
So, What Stands in the Way of Constitutional Reform in BiH?
Even the creators of the DPA knew that the DPA was imperfect and that it would represent a stumbling block in BiH’s development. However, they all thought the BiH Constitution would be significantly amended shortly after codification. Yet, it never happened. The BiH Constitution can be amended by a decision of the Parliamentary Assembly, which includes a two-thirds majority of the members of the House of Representatives present and voting. All attempts by the BiH authorities to change the Constitution have been unsuccessful. The reasons are multitudinous: from the short deadline for drafting constitutional and legislative amendments, to the failure to hold working group meetings due to the absence of their members and consequent lack of a quorum. But, in essence it all comes down to one thing: a lack of will among politicians to reach an agreement.
Why are politicians unable and unwilling to change the Constitution? The DPA has organised BiH, as a polity, around ethnicity and has paved the way for ethnonationalist parties to rule. In addition, since the Constitution stipulates that officials appointed to BiH institutions need to represent the peoples of BiH, the DPA also paved the way for these ethnonationalist parties to use the quota system to appoint their people of trust to high state positions. These politicians are among the highest paid politicians in Europe in comparison to the salaries of the rest of the population, meaning the BiH political system is a cash cow for politicians.
Consequently, there is a whole political class in BiH whose sole ethic is self-enrichment. And this is the real reason why they are ethnonationalists in the first place. Their nationalism and spreading of ethnic distrust is what keeps them in power. And the process of constitutional reform, just as any other process, is becoming less about the reform necessary for ensuring human rights for everyone, and more about cheap political gains.
So why do people still vote for them? Because a vote for a non-ethnic party is construed as weakening one’s ethnic community. Politicians are elected for their promise of protecting their respective ethnic group against the other two. This is something the politicians repeat over and over again, and this is what sticks with voters. Also (and even more important) is the fact that essential positions in the state are held by these ethnonationalist parties and that the best way to secure a job for yourself or your children is to vote for them. And even though the European Union (EU) accession is still a shared goal among all BiH politicians, it remains secondary to the aim of preserving and advancing the power of one’s own group.
Hence, after an unusually long wait for the BiH authorities to implement the Sejdić and Finci verdict, now that more than 10 years have passed since this verdict was issued, it is the right time to face the truth: no, BiH authorities will not implement this verdict themselves. Pressure from the outside is thus not only needed but also necessary.
Possible Steps Forward
Before we deal with possible steps towards implementing ECtHR rulings and amending the BiH Constitution, it is important to clarify two things: BiH authorities’ (in)action in the case of ECtHR rulings are not exceptional since these politicians also fail to respect other courts’ rulings (not even the BiH Constitutional Court’s judgments), nor is the implementation of the Sejdić and Finci verdict a guarantee that BiH would transform itself into a successful and efficient democratic state. Implementation of the Sejdić and Finci verdict is just a formality that must be completed in order for this process to begin.
So far, apart from statements and resolutions, there has been no concrete pressure from the international community on BiH towards implementation of the ECtHR judgments. They rely on the pressure of public condemnation, considering this should have been sufficient to make BiH leaders to take action. As we can see, however, this has not been the case. Therefore, stronger pressure is needed. Here, the role of the EU is crucial. The EU must not allow BiH politicians to get away with such inaction and should make the continuation of any talks about BiH's EU accession process conditional on the implementation of these rulings.
However, as the BiH authorities, as well as international community, are still undecided on how to or even if they should take actions, I consider two possibilities here.
One option is the intervention of the High Representative, since if there is any time that BiH should not be allowed to take ownership over its affairs, this is it. Namely, one of many consequences of the DPA was the establishment of the Office of a High Representative with the task of facilitating the implementation of the peace agreement. The High Representative has the power to impose decisions in cases where BiH authorities are unable to make an agreement, and in the past, it has carried out this task numerous times. Now is the proper time to use these powers again.
A possible second option is to use the BiH civil society and academic institutions to make changes. Research shows that, where NGOs have sought and pursued opportunities for engaging with the authorities, where they have formed alliances with other civil society actors and used the media to drive implementation forward, they have managed to secure important human rights gains. Besides (and importantly), all talks have to include consultations with people directly affected by the discriminatory provisions in the Constitution - which so far was minimal. And even before the ECtHR rulings are implemented, these rulings can be used as a trigger for reforms with a wider scope of building representation based on the civic principle. Far-reaching measures can be adopted, such as education reforms aimed at promoting equality and strengthening BiH nationality and unity as opposed to ethnic division.
Conclusion
Democracy is currently in jeopardy in many countries in the world. Most authors do not count BiH among them since the political and constitutional situation here has been unchanged for the last 25 years. On the other hand, there is an active and pressing dismantling of democratic governance rising around the globe - to name just a few: Poland, Hungary, Brazil, and the US. Still, the BiH case study can contribute to the current constitutional discussions, as there are several important insights that can be learned from the BiH experience.
For one thing, the BiH case study serves as an indicator of possible detrimental consequences arising from a poor post-conflict process of territorial division and state restructuring driven by strategic considerations and not the benefit of the citizens of the state concerned. Namely, the word ‘Dayton’ has entered the language as a shorthand for the ‘Big Bang’ approach to negotiations: lock everyone up until they reach an agreement. This is certainly a good type of diplomacy if the end of the war is the only thing you want the warring parties to reach. If, however, during that process you also create the highest legal act of a state – its Constitution – the process must not be rushed and led behind closed doors.
Hence, the first big lesson is that the process of creating a constitution in secret and as a compromise between warring states certainly results in the consolidation of disputed conflicts (ethnic or otherwise) as well as instability and inefficiency in the future state. The Constitution should instead be drafted and adopted involving the citizens of the state concerned and applying procedures that provide democratic legitimacy. No, BiH is not a sui generis case but a cautionary tale for the rest of the world, illustrating how hard it is to reverse the post-conflict process that starts off poorly. This case can contribute to the literature and potentially influence policy-makers interested in issues relevant to any country emerging from conflict.
Second, and in line with what Satang Nabaneh has also recently highlighted for Gambia’s attempts at constitutional reform, the BiH case study demonstrates how political elites can serve as stumbling blocks when proposed constitutional change threatens their political power. Here, ethnicity is clearly being instrumentalised by leaders (still) hungry for power. Therefore, the second big lesson is that a state that faces a dire economic situation and high unemployment is susceptible to manipulation of political elites.
Finally, prolonged non-implementation of the judgments of the ECtHR is a challenge to the Court’s authority and thus to the Convention system as a whole. Thus, the third big lesson is the unavoidable need to improve the supervision of the implementation of the ECtHR rulings bv the Committee of Ministers within the Council of Europe.
And as fas as BiH is concerned, it is high time to offer equal treatment to every citizen of BiH and make this country a home for all its citizens, regardless of their ethnic affiliations. To be clear, no one claims that the implementation of the Sejdić and Finci ruling is easy. However, it is not impossible and Bosnia cannot be the only country in the world with a constitution that labels some of its citizens as ‘others’.
Ajla Škrbić is an Assistant Professor of international and public law from Bosnia and Herzegovina (BiH). She has written numerous articles concerning international and public law, and she is the author of Immunity of State from Judicial Proceeding and Enforcement (University Press Sarajevo, 2018). She is a certified lecturer for the Civil Service Agency of BiH and an official educator of judges and prosecutors in the FBiH. In 2017, she became the first person from the post-Yugoslav states to be invited to attend the prestigious United Nations International Law Fellowship Programme. In addition, the Austrian Federal Ministry of Education, Science and Research and the Institute for the Danube Region and Central Europe awarded her with the Danubius Young Scientist Award 2017 for BiH, naming her the best young scientist in BiH. Recently she has been awarded a Georg Forster Research Fellowship for postdoctoral researchers from the Alexander von Humboldt Foundation.