The International Institute for Middle East and Balkan Studies (IFIMES)[1] from Ljubljana, Slovenia, regularly analyzes developments in the Middle East, the Balkans and around the world. On the occasion of the announcements of a possible imposition of the Election Law in Bosnia and Herzegovina by the High Representative in BiH Christian Schmidt, IFIMES made an analysis of the announced modification and its consequences. We bring the most important and interesting parts of the extensive analysis titled “2022 Bosnia and Herzegovina: Christian Schmidt vs. High Representative (OHR)?”
After the Russian invasion on Ukraine, which begun on 24 February 2022, Bosnia and Herzegovina, Kosovo and the Western Balkans region as a whole, once again became a focus of international attention. There is almost no relevant report or discussions at which Bosnia and Herzegovina is not identified as a location of possible conflict.
For more than a decade the US administration has left Bosnia and Herzegovina in the care of the European Union (EU), which has more than evidently missed the historic opportunity to make important steps forward towards a prosperous BiH. Not just that such steps have not been made but the EU has created in BiH a situation identical to that in Ukraine in the eve of the Russian invasion. The sequence of moves by EU officials towards BiH indicates a high risk of corruption, just as in the case of the possible imposition of the BiH Election Law.
In Bosnia and Herzegovina general elections are to take place on 2 October 2022, at the peak of the economic and social crisis. The Dayton peace agreement itself cannot generate serious changes because its ethnic basis (literally) protects all the political elites, which are headed by warlords who had become eternal politicians. Everything is reduced to ethnicity – Bosniaks, Serbs and Croats, which is combined with strong presence of crime and corruption. In such a formula there is no room for young and progressive people. Realization of the announcements of the imposition of the Election Law in Bosnia and Herzegovina by the OHR would lead to “Lebanonization” of the election law. Instead of Sunni, Shia and Christians in the Lebanese case, in BiH we will have the division to Bosniaks, Serbs and Croats cemented for good. This would mean the end of the dreams about a better future and the termination of the so-called European path of Bosnia and Herzegovina.
Analysts warned that the belated decisions of NATO from the Bucharest summit in 2008, when it did not manage to resolve the situation regarding Ukraine, Moldova, Georgia and North Macedonia, nowadays boomerang on Bosnia and Herzegovina. The postponing of the beginning of membership talks with the EU for North Macedonia and Albania, which had unnecessarily been kept in the waiting mode for three years, have further destabilized the Western Balkans. The situation on the Western Balkans could have been different in many aspects had the two countries begun their talks with the EU three years ago. The support to European integration and membership in EU among Western Balkan population is drastically declining. In example, in Serbia the support to membership of the country in the EU is at the level of 44%. The EU is becoming the source and possible new global hotspot of security problems because of its hypocritical and calculating relation towards the Western Balkans. In the meantime, Russia and China are striving to fill the emerged vacuum.
Currently, in the House of Peoples of the Federation of BiH 17 draft laws and 11 law proposals are waiting to be approved, while the appointments of the FBiH Government on the basis of the election results from 2018, FBiH President and Vice President, as well as judges of the FBiH Constitutional Court are stopped. No less than 5 judgments[2] of the International Criminal Tribunal for former Yugoslavia stipulate that the Republic of Croatia had participated in the international armed conflict in BiH (aggression) and the joint criminal enterprise[3] (JCE) against BiH. First instance and appeal procedures included 22 ICTY prosecutors, whereas in the first four cases Tuđman’s transcripts were not used. Croatia evidently abuses its membership in the EU and NATO to act against Bosnia and Herzegovina and in the function of the Croat Democratic Union BiH (HDZ BiH) and its leader Dragan Čović, who lost by a landslide to Željko Komšić (DF) at the last elections (2018) for the BiH Presidency.
Analysts believe that it is important to warn the EU officials, as well as officials of other countries and particularly the UK and US, of the grave legacy which the Republic of Croatia has in case of Bosnia and Herzegovina (five judgments of the ICTY for aggression and participation in the joint criminal enterprise), which derogates it from participation in the attempts to find a solution for overcoming the existing crisis in BiH, which has been constantly produced by the Dragan Čović (HDZBiH)-Milorad Dodik (SNSD) duo.
The OHR legal opinion /information[4] from 2016 is related to the request that the then Chair of the House of Representatives of the BiH Parliamentary Assembly and now representative in the Parliament of the Republic of Croatia Božo Ljubić had filed with the BiH Constitutional Court. In the request Ljubić challenged the provisions of the BiH Election Law, primarily those related to election of delegates to the FBiH House of Peoples, but did not challenge the provisions of the FBiH Constitution.
The OHR provided to the BiH Constitutional Court a number of arguments that render Ljubić's request for modification of the BiH Election Law senseless. The BiH Court did not take into account the stance and opinion of the OHR, which resolutely stipulated that the modifications are within the purview of the FBiH, specifically that the BiH Election Law is aligned with the FBiH Constitution. The Decision of the BiH Constitutional Court contains no reference to the opinion/information of the OHR, other than that it had been provided to the Court. Nowadays, the actions of High Representative Christian Schmidt and the OHR are completely differently from those from the time and mandate of the then High Representative Valentin Inzko. Essentially, Christian Schmidt acts against the High Representative (OHR) from 2016. The BiH Constitutional Court did not accept the then stance of the OHR that the BiH Election Law is aligned with the FBiH Constitution and that the requested modifications were within the purview not of the national but the FBiH parliament, but it instructed the national parliament, BiH Parliamentary Assembly, to implement the respective Decision of the BiH Constitutional Court within six months.
On 14 July 2016, the Constitutional Court invited the Office of the High Representative to attend the public hearing scheduled for 29 September and the Department for Legal Affairs of the Office of the High Representative to provide written observations with regard to the Request and the specific questions determined by the Constitutional Court important for rendering its decision related to Case No. U 23/14 (Božo Ljubić).
Information submitted by the OHR concerning the request of the applicant in Case No. U 23/14
I. Introduction
1. On 22 September 2014 the Constitutional Court of Bosnia and Herzegovina (hereinafter: the Constitutional Court) received a request of Dr. Božo Ljubić, Chair of the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina at the time of filing of the request, for the review of constitutionality of the provisions of the Election Law of Bosnia and Herzegovina, Subchapter B, and in particular Article 10.10, 10.12, 10.15, 10.16, and 20.16A (Official Gazette of Bosnia and Herzegovina, Nos. 23/01, 7/02, 9/02, 20/02, 25/02, 4/04, 20/04, 25/05, 52/05, 65/05, 77/05, 11/06, 24/06, 32/07, 33/08 and 37/08; hereinafter: the Election Law).
2. On 14 July 2016, the Constitutional Court invited the Office of the High Representative to attend the public hearing scheduled for 29 September and invited the Department for Legal Affairs of the Office of the High Representative to provide written observations with regard to the Request and the specific questions determined by the Constitutional Court important for rendering its decision related to Case No. U 23/14 attached to the invitation letter.
3. The Office of the High Representative welcomes the opportunity given to it by the Constitutional Court to present its views concerning Case No. U 23/14 with a view to assisting the Constitutional Court, particularly on issues arising out of the Amendments to the Constitution of the Federation of Bosnia and Herzegovina that were enacted by the High Representative on 19 April 2002 (Official Gazette of the Federation of BiH, No. 16/02)
4. The Office of the High Representative notes however that it belongs to the Constitutional Court to decide on the request of the Applicant and to decide whether the challenged provisions are in line with the Constitution of Bosnia and Herzegovina.
II. Factual Background
5. The request submitted to the Constitutional Court relates to the manner of selection of the delegates of the House of Peoples of the Parliament of the Federation of Bosnia and Herzegovina (hereinafter: the Federation House of Peoples). In particular, it contends that the rule according to which each Canton must elect at least one representative of each Constituent people if it has one such representative in the Cantonal Assembly is contrary to the Article I(2), II(1) and II(4) of the Constitution of Bosnia and Herzegovina (hereinafter: the BiH Constitution).
6. The factual background provided below aims to explain the evolution of the provisions of the Constitution of the Federation of Bosnia and Herzegovina (hereinafter: the FBiH Constitution) related to the Federation House of Peoples and the relevant rules provided in the Election Law. We hereby wish to note that the applicant did not call into question the relevant provisions of the FBiH Constitution.
7. The FBiH Constitution was adopted by the Constitutional Assembly of the Federation of BiH, at the session held on June 24, 1994. It was published in the “Official Gazette of the Federation of Bosnia and Herzegovina”, No. 1/94. It provided the following concerning the composition of the Federation House of Peoples and the selection of its delegates:
Article IV.6.
There shall be a House of Peoples, comprising 30 Bosniac and 30 Croat Delegates as well as Other Delegates, whose number shall be in the same ratio to 60 as the number of Cantonal legislators not identified as Bosniac or Croat is in relation to the number of legislators who are so identified.
Article IV.8.
The number of Delegates to be allocated to each Canton shall be proportional to the population of the Canton. Within that number, the percentage of Bosniac, Croat, and Other Delegates of a Canton shall be as close as possible to the percentage of the Bosniac, Croat, and Other legislators in the Canton. However, there shall be at least one Bosniac, one Croat, and one Other Delegate from each Canton that has at least one such member in its Legislature, and the total number of Bosniac, Croat, and Other Delegates shall be in accordance with Article 6. Bosniac, Croat, and Other Delegates from each Canton shall be elected by the respective legislators in that Canton’s Legislature.
Article IX.7.
The published results of the 1991 census shall be used as appropriate in making any calculations requiring population data.
8. On 12 February 1998, Mr. Alija Izetbegović, at the time Chair of the Presidency of Bosnia and Herzegovina, initiated proceedings before the Constitutional Court for an evaluation of the consistency of the Constitution of the Republika Srpska and the FBiH Constitution with the BiH Constitution.
9. The four partial Decisions of the Constitutional Court in case no. U 5/98[5] were related to numerous provisions of the Constitutions of the Entities of Bosnia and Herzegovina, some of which have been found to be in contravention of the BiH Constitution. In particular, the Constitutional Court ruled in its third partial Decision in case no. U 5/98 of 30 June and 1 July 2000 (Official Gazette of Bosnia and Herzegovina, No. 23/00 of 14 September 2000) that exclusion of one or other constituent people from the enjoyment not only of citizens’ but also of peoples’ rights throughout Bosnia and Herzegovina was in clear contradiction with the non-discrimination rules contained in the BiH Constitution, which are designed to re-establish a multi-ethnic society based on the equal rights of Bosniacs, Croats and Serbs as constituent peoples and of all citizens.
10. Representatives of political parties of the Federation of Bosnia and Herzegovina (hereinafter: the Federation of BiH) and of Republika Srpska accepted the invitation of the High Representative to come together in the course of the month of March 2002 to negotiate under his auspices an agreement on amendments to the constitutions of the entities that could be implemented ahead of the general elections to be held the same year. The facilitation efforts undertaken by the High Representative led some of the political parties involved to conclude an Agreement on 27 March 2002 on various elements necessary to implement the said third partial Decision of the Constitutional Court[6].
11. The said Agreement embodied the broadest possible agreement throughout the Federation of BiH and Republika Srpska as to the inclusion of those key elements which provide for the equal protection of the rights of Bosniacs, Croats and Serbs as constituent peoples, and of the Others, and all citizens of Bosnia and Herzegovina in both Entities. Although this Agreement was signed by a vast majority of the political parties participating in the negotiations, two important political parties, the SDA and the HDZ BiH, rejected such Agreement.
12. Bearing this in mind, the Agreement of 27 March 2002 contained the following provisions concerning the composition of the Council of Peoples and the Federation House of Peoples and selection of its members:
Article 3. Composition of the Council of Peoples and the House of Peoples and selection of members
The Council of Peoples and the House of Peoples shall be composed on a parity basis so that each constituent people shall have the same number of representatives.
A minimum number of 8 and a maximum number of 17 members shall come from a single constituent people. The Others shall be represented by a number not exceeding one half of the representatives of a single constituent people in the CoP and HoP respectively.
Others have the right to participate equally in the majority voting procedure.
13. Considering the obligation under Article 1.14. of the Election Law (Official Gazette of BiH, Nos. 23/01 and 7/02) for the Election Commission of Bosnia and Herzegovina to notify all competent authorities at all levels when an election shall be conducted at least one hundred and seventy (170) days prior to the holding of an election, the Peace Implementation Council Steering Board met on 27 March 2002 and concluded, inter alia, that the amendments to the Entity constitutions must be fully in line with the agreement reached by the political parties on 27 March 2002 and requested the Entity parliaments to adopt the amendments by the first week of April 2002.[7]
14. On 18 April 2002, the Federation House of Peoples adopted amendments to the FBiH Constitution consistent with the four partial Decisions of the Constitutional Court in case No. U 5/98 and respecting the provisions of the 27 March 2002 Agreement. However, the House of Representatives of the Federation of BiH failed, on the same day, to adopt the same.
15. On 19 April 2002 the High Representative issued the Decision No. 149/02 amending the Constitution of the Federation of Bosnia and Herzegovina (Official Gazette of the Federation of BiH, No. 16/02). Amendments XXVII – LIV to the Constitution of the Federation formed an integral part of this Decision and the text of the said amendments was based on the text of amendments adopted by the Federation House of Peoples. Amendments XXXIII and XXXIV to the Constitution of the Federation of Bosnia and Herzegovina enacted by virtue of that Decision provide:
AMENDMENT XXXIII
Composition of the House of Peoples and Selection of Members
(1) The House of Peoples of the Federation Parliament shall be composed on a parity basis so that each constituent people shall have the same number of representatives.
(2) The House of Peoples shall be composed of 58 delegates; 17 delegates from among each of the constituent peoples and 7 delegates from among the Others.
(3) Others have the right to participate equally in the majority voting procedure.
This Amendment shall amend Article IV.A.2.6 of the Constitution of the Federation of BiH.
AMENDMENT XXXIV
(1) Delegates to the House of Peoples shall be elected by the Cantonal Assemblies from among their representatives in proportion to the ethnic structure of the population.
(2) The number of delegates to the House of Peoples to be elected in each Canton shall be proportional to the population of the Canton, given that the number, structure and manner of election of delegates shall be regulated by law.
(3) In the House of Peoples there shall be at least one Bosniac, one Croat, one Serb from each Canton which has at least one such delegate in its legislative body.
(4) Bosniac delegates, Croat delegates and Serb delegates from each Canton shall be elected by their respective representatives, in accordance with the election results in the legislative body of the Canton, and the election of delegates from among the Others shall be regulated by law.
(5) No delegate of the House of Representatives or councilor of the Municipal Council may serve as a member of the House of Peoples.
This Amendment shall replace Article IV.A.2.8 of the Constitution of the Federation of BiH.
16. The Law on Amendments to the Election Law adopted by the Parliamentary Assembly of BiH in July 2002 (Official Gazette of Bosnia and Herzegovina, No. 20/02) introduced provisions regulating the selection of delegates to the Federation House of Peoples consistent with the provisions of the FBiH Constitution as set forth in Amendment XXXIII and XXXIV to the FBiH Constitution.
III. Arguments
17. As mentioned earlier, the matter raised in the request relates to the composition of the Federation House of Peoples and the method of selection of its members. These matters do not constitute “principles applicable to the elections at all levels of power in Bosnia and Herzegovina” nor “pertain to elections of members and delegates of the Parliamentary Assembly or Presidency of BiH”. As such, pursuant to the case law of the Constitutional Court[8], they do not fall within the exclusive responsibilities of Bosnia and Herzegovina but are rather responsibilities falling within the organisational autonomy of the Federation of BiH. It is therefore important to emphasize that it belongs to the FBiH Constitution to determine the composition of the Federation Parliament and set the principles applying to the selection of its members whereas the Election Law must reflect and ‘operationalize’ those rules contained therein.
18. We note in this respect that the applicant challenged certain provisions of the Election Law without challenging the provisions of the FBiH Constitution. We hereby contend that the provisions of the Election Law are in line with the principles established by the FBiH Constitution and that the various provisions of the FBiH Constitution have an internal consistency and have to be applied concomitantly, including in particular through the Election Law.
19. Article IV.2.6. and IV.2.8. of the FBiH Constitution regulate the composition and election to the Federation House of Peoples and establish four principles in that respect:
Article IX.7. of the FBiH Constitution provides that the published results of the 1991 census are used for all calculations requiring demographic data, until Annex 7 is fully implemented.
20. Every one of these requirements has its own rationale and, applied together, they reflect the fact that the Federation House of Peoples mixes equal representation of constituent peoples (and representation of Others) and territorial representation of cantons proportional to their population.
21. In the present case, the applicant submits that the application of the requirement under which at least one representative of each constituent people be elected from each canton whenever there is such a representative in the Cantonal Assembly leads to a violation of the other requirements which amounts to a violation of the Constitution of BiH and, in particular, Article I(2) thereof.
22. As mentioned above, the requirement that at least one representative of each constituent people be elected from each canton whenever there are such representative in the Cantonal Assembly was part of the Washington Agreement concerning the FBiH Constitution from March 1994[9]. While the Entity Constitutions were amended to reflect the Mrakovica Agreement which resulted from negotiations to implement the Decision of the Constitutional Court in the case No. U 5/98 (Constituent Peoples Decision), the broad features of the system of selections of the delegates were kept untouched.
23. At the time, it was seen important to ensure that any cantons where representatives of constituent peoples are elected get a chance to send at least one of those representatives to sit in the Federation House of Peoples. This was seen as a way to highlight the constitutional principle of collective equality of constituent peoples throughout the territory of BiH often put forward by the Constitutional Court of BiH (see Constitutional Court, Third Partial Decision, No. U 5/98 of 1 July 2000). It was also a way to fulfil one of the overarching objectives of the Dayton Peace Agreement i.e. the return of refugees and displaced persons to their homes of origin and to re-establish the multi-ethnic society that had existed prior to the war.
24. We note that the Constitutional Court has already had the opportunity to examine the manner of selection of the delegates to the Federation House of Peoples in its Case No. U 5/05 of 27 January 2006 when, after examining the Amendments XXXIII and XXXIV to the FBiH Constitution[10], it stated that:
[D]e iure, based on the mentioned Decision on Constituent Peoples, the principle of collective equality of all three peoples throughout the territory of the Federation of Bosnia and Herzegovina has been established [by these Amendments], and, consequently, within the authorities of this Entity as well as within the House of Peoples of its Parliament.
25. It is the same intention to give constituent peoples the possibility to defend their national interests wherever they are represented in political authorities that later led to the adoption of Amendment LXXIX to the FBiH Constitution related to Article V.7. of the FBiH Constitution under which a caucus of constituent people is constituted when at least one delegate from a constituent people is elected to a cantonal assembly. This rule enables constituent people that constitute a minority in a particular canton to have their “vital national interest” protected in that canton.
26. The four above-mentioned requirements or are of equal rank and must be interpreted as a consistent whole and applied concomitantly. The strict application of only one of those principles, would lead to a breach of other principles. To give an obvious example, the strict application of the requirement that the representation of cantons in the Federation House of Peoples be proportional to their population and of the requirement that the delegates selected by each canton represent constituent peoples proportionally to their population in that Canton would inevitably oblige to depart from the principle of equal representation of constituent peoples in the Federation House of Peoples or from the principle that at least one representative of each constituent people be elected from each canton whenever there are such representative in the Cantonal Assembly. In other words, it is clear that the principle “minimum one representative per constituent people and canton if possible” leads to over-representation of constituent peoples in some cantons to the detriment of others. In the same way, the principle of parity between constituent peoples also leads to a distortion in the representation of cantons which should in theory be proportional to their population as well as in the representation of constituent peoples which also means that, in the selection of delegates to the Federation House of Peoples, a Croat vote has more weight than a Bosniak vote and less weight than a Serb vote.
27. This is what led to the adoption of Article IV.2.8. of the FBiH Constitution which provides, in its paragraph 2 that:
(2) The number of delegates to the House of Peoples to be elected in each Canton shall be proportional to the population of the Canton, given that the number, structure and manner of election of delegates shall be regulated by law.
28. The number, structure and manner of election of delegates has been further determined in detail under Chapter 10, Subchapter B and Article 20.16 A of the Election Law that operationalizes all the principles set forth by the FBiH Constitution.
29. To do so, the law applies the Sainte-Lagüe formula of proportional representation, which is a method, used to convert votes into seat in a proportional manner. In this case, the method is used in order to translate population figures into seat representation by canton. Although the method is not the only one possible when allocating seats to cantons and constituent peoples, it is a well-recognised formula that is applied in many countries around the globe. It was selected to the detriment of other representation formulas such as the D’Hondt method because it tends to be more favourable to smaller cantons.
30. It is also worth noting that the formulation used in Article 10.12 paragraph 2 of the Election Law according to which “each constituent people shall be allocated one seat in every canton” could be seen, taken in isolation, not to be in line with the requirement under Article IV.8. (3) of the FBiH Constitution which provides the need to have one representative of each constituent people whenever there is such a representative in the cantonal assembly [emphasis added]. However, Article 10.16 complements Article 10.12 by providing for the procedure to be applied if the required number of delegates from each constituent people or from among the others in a given cantonal legislature are not elected. Under this procedure, the Central Election Commission of Bosnia and Herzegovina reallocates the seats that were not filled in a particular canton to other cantons. This procedure ensures that the requirement to have one constituent people representative in each canton is limited to cantons where there are such representatives, as required under the FBiH Constitution.
31. Article 20.16 of the Election Law allocates seats to Cantons and constituent peoples in accordance with the 1991 census. This is also an attempt to respect the FBiH Constitution under which the published results of the 1991 census are used for all calculations requiring demographic data, until Annex 7 is fully implemented[11]. It is clear however that this initial allocation is subject to the subsequent procedure of re-allocation of seats provided for in Article 10.16 of the Election Law if these seats could not be filled.
32. As such, the figures put forward by the Applicant, which are those provided for by Article 20.16 of the Election Law, do not reflect the final allocation of seats to the Cantons and the constituent peoples.[12]
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33. The applicant further argues that the challenged provisions of the Election Law violate the right to elections by establishing constituencies with significantly different numbers of voters, resulting in the value of individual votes being significantly different. This would allegedly violate the principle of equal suffrage under Article 25.b) of the International Covenant on Civil and Political Rights.
34. In its decision in case No. U 9/09, the Constitutional Court of BiH noted that it considers that the need to deal with post-war social and political conditions affecting Bosnia and Herzegovina, and the City of Mostar in particular, continues to represent a legitimate aim which might justify departing from the normal, democratic principle that, so far as possible, each elector’s vote should have similar weight.
35. As explained above, the rules concerning representation of cantons and constituent peoples within the upper house of the Federation Parliament is relying on a number of principles that reflect the political considerations prevailing when they were adopted. The principle which is challenged by the applicant, i.e. the need for constituent peoples to get their delegates elected from all cantons when they have such delegates in the cantonal assembly, sought to promote the representation of constituent peoples even from cantons where they constitute a numeric minority in order to promote return of refugees and displaced persons but also to give effect to the principle that the peoples are constituent throughout the territory of the Federation. As such, the principle does not stem “from a desire for administrative simplicity” but rather from “necessary, reasonable or proportionate steps to develop a power-sharing structure or a multi-ethnic community” throughout the Federation of BiH.
36. We further note that arrangements that lead to the over-representation of territorial or other communities are not uncommon in Europe.
37. The Council of Europe’s ‘European Commission for Democracy Through Law’ issued guidelines on elections[13], which elaborated on the meaning of equal suffrage:
“a. Equal voting rights: each voter has in principle one vote; where the electoral system provides voters with more than one vote, each voter has the same number of votes.
b. Equal voting power: seats must be evenly distributed between the constituencies.
This must at least apply to elections to lower houses of parliament and regional and local elections:
[…]
iii. The geographical criterion and administrative, or possibly even historical, boundaries may be taken into consideration.
iv. The permissible departure from the norm should not be more than 10%, and should certainly not exceed 15% except in special circumstances (protection of a concentrated minority, sparsely populated administrative entity).
[…]”
38. The wording used specifically enables exceptions in respect to upper houses of Parliament. This seems to be justified insofar as upper houses of Parliament are often designed to ensure “diversification of representation and the integration of all members of the nation”[14]. To achieve this, the members of the second chambers are often selected by local or regional authorities in a way that over-represents the smaller regions. By way of illustration, the members of the German second legislative chamber, the Bundesrat, are appointed by their respective Land governments according to a formula that affords greater representation per inhabitant to the smaller Länder, i.e. those that have less than two million inhabitants. In the same way, the members of the Spanish Senate are elected through a system that mixes direct election with indirect election by the regional parliaments in a manner that ensures that every region has a minimum representation in the Senate, regardless of its size or population.
39. The wording used in the above mentioned guidelines on elections indicate that it belongs to countries to decide whether to apply the principle of equal voting power to the elections of the members of the upper chamber. However, we believe that, even in that situation, the system put in place by the FBiH Constitution which, as we have seen earlier, tries to combine territorial and constituent peoples representation, could also fall under the special circumstance under the item b.iv. of these guidelines.
IV. Concluding remark
40. We have outlined to the Court the relevant circumstances that led to the adoption of the system in place for the selection of delegates to the Federation House of Peoples. We believe that these circumstances show that the provisions included in the FBiH Constitution served a legitimate aim at the time of their adoption and that the practice of over-representing regions or ethnic component of the society is inherent to the existence of upper chambers in federal states. It belongs to the Parliament of the Federation to determine whether these circumstances have changed to a point where reforming the manner of selection of the delegates to the Federation House of Peoples has become necessary. The provisions of the Election Law, which are challenged in the present case, were adopted pursuant to the FBiH Constitution in an attempt to give effect to the principles set forth therein. The method used to do so is not the only one available and the legislator could decide to amend the FBiH Constitution to reflect new priorities.
Although the OSCE has also taken a clear stance that the election law, that is election rules, should not be modified in the election year, High Representative Christian Schmidt is try to please, “through the backdoor”, the leaders of the Republic of Croatia and the HDZ. Analysts believe that Christian Schmidt wants to make some concessions to the pro-Bosnian parties as well and thus calm down the situation, at least for the time being, which is an absolutely wrong assessment. The HDZ and Croatia are working on establishment of a “Croat entity” in BiH and any concession by the OHR would be a step in the direction of dissolution of BiH. The situation is the same as with Milorad Dodik, because any concession to the destructors of BiH implies deterioration of the security situation in BiH. The High Representative must be aware that concessions to Čović and Dodik are concessions to Vladimir Putin and Russia, as well as a major risk of renewal of conflicts in BiH.
The hypocrisy of the EU and specific western countries is actually reflected in the new attempts of imposition of the election law. They have stopped any thought or idea that BiH could join the EU. Although NATO does not wish to extend an invitation to BiH to become a member, individual western countries bilaterally support BiH and promise support, which is something that we can see also in the case of Ukraine.
Will BiH face the same faith as Ukraine? Why are the western states bilaterally arming Ukraine, but in the case of Bosnia and Herzegovina support the policy that “bypasses” all the judgments of the European Court of Human Rights (the most renown one is the Sejdić-Finci[15] judgment from 2009), ICTY/MICT and ICJ, as well as opinions of the Venice Commission, various EU resolutions, the recent resolution adopted by the Bundestag and divides BiH along the ethnic lines thus delivering the best possible argument to Putin to conquer the whole of Ukraine. Currying favor with the destructors of BiH through imposition of the Election Law as well is a prelude to the Ukrainian scenario. Therefore, it is high time for the US and individual EU members to realize that the Republic of Croatia and Hungary are the Russia's “Trojan horse” in the EU and NATO, whose goal is to cause conflicts in BiH.
Analysts believe that the OHR, Peace Implementation Council (PIC) and the EU should stop the practice of triple policies towards BiH and request from High Representative Christian Schmidt to comply with and follow the earlier established postulates of the international community and OHR pertaining to the Election Law, as well as the policy of his state which is reflected in the recently adopted resolution on BiH in the Bundestag In other words, not to follow the policy of the former German federal chancellor Angela Merkel and the policy of Russian influence based on gas, which is still being supplied to Germany thanks to the former German policy and despite the sanctions imposed against Russia.
In general, the announced decision of the OHR on modifications to the BiH Election Law increases the rights of one constituent people (Croats) in one part of the territory of the FBiH, but derogates the rights of the same people living in other parts of the FBiH. Such an option discriminates against Croats in non-Croat cantons, as well as Bosniaks and Serbs in Western Herzegovina. A justified question to be asked is what about the citizens who do not declare themselves as members of a constituent people? The High Representative would definitely thus introduce legalization of the war policies and the HDZ policy. Specifically, the policy according to which the principle of proportionality is to be applied in the areas where the Croats constitute a majority, and the principle of parity in the areas where the Croats are a numerous minority.
Another question to be asked as well is what about Republika Srpska (RS)? How will the rights of the other two constituent peoples be protected there if the ethnic census of 3% is being introduced as a standard in the Federation of BiH? Namely, in the RS the other two peoples (Bosniaks and Croats) and ethnic minorities are absolutely not a relevant political subject and have no significant influence on adoption of decisions, because Republika Srpska has deliberately obstructed implementation of Annex 7 of the Dayton peace agreement. If the return of the refugees and exiled persons would be implemented the entity-based blockades would be reduced to minimum. Will then special quotas be defined in the RS like in the FBiH? In example, will the Prijedor Municipality be given a significant number of seats in the Republika Srpska National Assembly (NSRS), as it is the only municipality with a significant number of returnees? A single constitutional-legal system of BiH cannot include such diametrically opposite solutions that lead to additional discrimination and establishment of an even bigger asymmetry in the constitutional-legal arrangements. It is evident that the judgements of the European Court of Human Rights on the constituent-status of all the peoples on the whole territory of BiH are clearly violated. The peoples and citizens are constituent on the whole territory of BiH, and representation should respect the principle of constituent-status and territorial representation. The intention of territorial representation from all parts of BiH is an impetus to the return process. In its opinion on the Božo Ljubić case, the OHR elaborated why the respective decision of the BiH Constitutional Court is still relevant and why it would be wrong to disrespect it.
Regardless of other aspects, such as removal of blockades in implementation of the election results, the announced decision of the OHR on modifications to the election law deepens ethnic divisions in the country and increases discrimination through further strengthening of the institute of constituent peoples and the so-called legitimate representation. The solutions were not sought through compliance with the achieved European standards in the protection of human rights and very concrete judgements of the European Court of Human Rights in Strasbourg, but were based on rigid calculations to what extent would each of the “three sides” in BiH be satisfied and to what extent would the proposal be to the liking of the HDZ BiH, Dragan Čović and Andrej Plenković. Hence, values-wise, this is a completely wrong approach that introduces new discriminations in an already deeply discriminatory society in Bosnia and Herzegovina. In case of possible imposition of the Election Law with discriminatory provisions, it would be necessary to establish legal teams which would challenge such a decision before the European Court of Human Rights in Strasbourg. Namely, what would happen in example in Germany if two months prior to elections for the German Bundestag the election rules would get changed? In fact, Germany allows bigger representation to its federal provinces with a population of under two million in the upper house (Bundesrat). This is definitely an attempt to incorporate institutionally in the system of Bosnia and Herzegovina the poorest experiences from Ukraine and Lebanon, although as a country BiH aspires to become a full-fledged member of the European Union. What needs to be done is to apply in Bosnia and Herzegovina constitutional and legal solutions, and consequently election legislation, that is in line with the standards and the acquis communautaire of the EU- and nothing more.
Ljubljana/Brussels/Washington, 27 July 2022
[1] IFIMES – The International Institute for Middle East and Balkan Studies (IFIMES) from Ljubljana, Slovenia, has a special consultative status with the Economic and Social Council (ECOSOC)/UN since 2018.
[2] ● ICTY, The Prosecutor v. Dario Kordić and Mario Čerkez, IT-95-14/2, par. 108,109,137,142,145 (‘Kordić and Čerkez’) http://www.icty.org/bcs/case/kordic_cerkez/4
● ICTY, The Prosecutor v. Tihomir Blaškić, IT-95-14-T, par. 94, 122,123,744 (‘Blaškić’) http://www.icty.org/bcs/case/blaskic/4
● ICTY, Prosecutor v. Zlatko Aleksovski, IT- 95-14, https://www.icty.org/x/cases/aleksovski/acjug/en/ale-asj000324e.pdf
● ICTY, The Prosecutor v. Mladen Naletilić and Vinko Martinović, IT-98-34, par. 14 ,196,200 (‘Naletilić and Martinović’) http://www.icty.org/bcs/case/naletilic_martinovic/4
● ICTY, The Prosecutor v. Jadranko Prlić et al., IT-04-74, par. 24 ,544,545,549,550,560,568 (‘Prlić et al.’) http://www.icty.org/bcs/case/prlic/4
[3] ● ICTY, The Prosecutor v. Jadranko Prlić et al., IT-04-74, par. 24 ,544,545,549,550,560,568 (‘Prlić et al.’) http://www.icty.org/bcs/case/prlic/4
[4] Source: OHR, Sarajevo 2016, „Information submitted by the OHR concerning the request of the applicant in Case No. U 23/14“, link: http://www.ohr.int/information-submitted-by-the-ohr-concerning-the-request-of-the-applicant-in-case-no-u-2314/
[5] Constitutional Court Decision of 28, 29 and 30 January 2000 (Official Gazette of Bosnia and Herzegovina, No 11/00 of 17 April 2000), of 18 and 19 February 2000 (Official Gazette of Bosnia and Herzegovina, No. 17/00 of 30 June 2000), of 30 June and 1 July 2000 (Official Gazette of Bosnia and Herzegovina, No. 23/00 of 14 September 2000) and of 18 and 19 August 2000 (Official Gazette of Bosnia and Herzegovina, No. 36/00 of 31 December 2000).
[6] Sarajevo/Mrakovica Agreement of 27 March 2002 is annexed to this submission.
[7] Communiqué of the Steering Board of the Peace Implementation Council of 27 March 2002 available at: http://www.ohr.int/pic/default.asp?content_id=7241
[8] Decisions in Case No U 4-11 of 27 May 2011 and U 4-12 of 26 May 2012.
[9] Article IV.8. of the FBiH Constitution quoted in paragraph 6 above.
[10] Article IV.6. and Article IV.8. of the Constitution of FBiH.
[11] Article IX.7. of the FBiH Constitution
[12] A table showing the final allocation of mandates after re-allocation by the CEC pursuant to Article 10.16 of the Election Law is attached.
[13] Code of Good Practice in Electoral Matters, adopted by the European Commission for Democracy Through Law at its session held 18-19 October 2002, available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2002)023rev-e
[14]See “Second Chambers in Europe, Parliamentary Complexity or Democratic Necessity?“, CDL(2005)059rev
[15] Source: ECHR, Case of Sejdić and Finci v. Bosnia and Herzegovina, (Applications nos. 27996/06 and 34836/06), link: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-96491%22]}
