Rule of law: Electoral changes in Bosnia-Herzegovina lead to charges of ‘ethnic gerrymandering’

Polly BotsfordFriday 14 October 2022

Bosnia-Herzegovina’s national and regional elections in early October were remarkable due to an unusual move by the Office of the High Representative (OHR), the internationally-appointed body with oversight of the country. After polls closed on 2 October, the OHR – installed at the end of the Balkans War in 1995 – implemented a new electoral law. The law had been introduced in July but the detail had yet to go ‘live’.

Baroness Arminka Helic, a member of the UK’s House of Lords and a former Senior Special Adviser to the country’s Foreign Secretary, tells Global Insight that ‘The decision […] to impose new electoral laws while the votes were being counted on that Sunday evening is a retrograde step which overshadows the elections and Bosnian democracy. Irrespective of the content, imposing new rules for what votes mean after they have been cast is deeply undemocratic.’

But an OHR spokesperson tells Global Insight that the timing was unavoidable. ‘The High Representative would, of course, have preferred to act earlier. However, he did not want to interfere with the campaign and chose to wait until election day, enacting the package before any election result could be known,’ says the OHR spokesperson.

The announcement of the electoral law in July led to protests outside the OHR’s buildings in Sarajevo. The overriding concern is that the law will cement rather than diffuse ethno-nationalist divisions in the country – protestors have labelled it legislative ‘apartheid’ and ‘segregationist’. The main areas of focus are the rules governing elections to the House of People, the lower parliamentary chamber of the Federation of Bosnia and Herzegovina – one of the two entities that make up the country – because it’s from this chamber that the presidential candidates are nominated. The OHR’s changes mean that the baseline for deciding the ethnic make-up of each of the cantons that form the Federation is no longer from before the Balkans War, in 1991, when populations were multi-ethnic. Instead, it uses a census from 2013, by which time the cantons were mono-ethnic.

The Dayton Agreement was certainly successful in bringing the war in the Western Balkans to an end. But it was not intended to be a permanent constitutional settlement for Bosnia-Herzegovina

Justice Richard Goldstone
Honorary President, IBA’s Human Rights Institute Council

Joseph Marko is Professor Emeritus at the University of Graz’s Institute of Public Law and Political Sciences and has served as one of three international judges at the Constitutional Court of Bosnia-Herzegovina. In a post on the constitutional law blog Verfassungsblog he labelled the result of the changes as ‘ethnic gerrymandering’, noting that ‘The net effect of this is that the entrenched Croat Democratic Community, “HDZ”, has a monopoly on nominating candidates to the presidency: ensuring that only Croats can vote for HDZ, and it is only HDZ that can represent Croats.’ In Baroness Helic’s view, ‘it appears that the main purpose of [the electoral laws] is to appease nationalist hardliners […] by increasing the hold of ethnic nationalist parties over Bosnian politics and government.’

The OHR denies this and highlights the fact that its electoral law also has new rules that prevent political parties from blocking candidates – something that has happened since the elections in 2018. The OHR spokesperson argues that its changes will, at least, unblock the system. ‘Elections that cannot be implemented cannot be said to be free and fair and even less to reflect the will of the voters […] The primary aim of the High Representative’s decision [to implement the law] is to protect all citizens […] by ensuring that elections are implemented, that new Governments are in place and that key authorities function,’ says the spokesperson.

These are not the first concerns to be raised about the country’s electoral system. The primary theme of that system is power-sharing among the three main groups: Bosniak, Serb and Croat. This has meant that, historically, it could be argued that other ethnicities and groups haven’t got a look in. Several complaints have been upheld by the European Court of Human Rights on the grounds of discrimination. These judgments have not been implemented in Bosnia-Herzegovina, however.

Baroness Helic argues that the timing of the new law is disastrous because it comes ‘just as the citizens of Bosnia have widely been voting to reject division and nationalism’. She adds that ‘Bosnian citizens want politicians to focus on the economy, the cost of living, the environment – things that matter to their daily lives.’

The problem, as ever, is history. After the Balkans War, the 1995 Dayton Agreement ensured that all three groups felt fairly represented, and could share power. The Bosnian Constitution was born out of that mindset. This means that neither the Constitution nor the institutions can move on from these ethnic ‘keys’, as Professor Marko refers to them.

Through the mechanism of the OHR, the spirit of the Dayton Agreement lives on rather than fades away, says Justice Richard Goldstone, Honorary President of the IBA’s Human Rights Institute Council and first chief prosecutor of the UN International Criminal Tribunal for the former Yugoslavia. ‘The Dayton Agreement was certainly successful in bringing the war in the Western Balkans to an end,’ he says. ‘But it was not intended to be a permanent constitutional settlement for Bosnia-Herzegovina […] Dayton does not provide the mechanism for a modern democratic state.’

According to Dr Vesna Bojicic-Dzelilovic, a research fellow in the Civil Society and Conflict Research Group at the London School of Economics, ‘We are seeing the persistence of power structures that developed during the War; the core people and their networks are still in place. The well-meaning international community reinforced those structures.’

Bosnia-Herzegovina is also affected by geopolitical events involving the EU and countries such as Russia, Turkey and the US. With the ascendancy of Putin’s regime, Russia began vocalising disagreement with the OHR’s policies, and moved onto courting secessionist politicians in Republika Srpska, the Serb entity within Bosnia-Herzegovina. ‘The Kremlin has been meddling in the Balkans for over a decade, seeking to sow instability, encourage nationalism and division, and corrode institutions,’ says Baroness Helic.

Justice Goldstone argues for an international conference to break the sectarianism and ‘to bring constitutional democracy to Bosnia-Herzegovina.’ The alternative, he says: ‘is to find leaders who have the political will to achieve true democracy and to avoid the nationalist rhetoric of the present and past.’

Image credit: niyazz/AdobeStock.com

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