Power-Sharing Electoral Reform Will Save Bosnia and Herzegovina

International attention is once again being focused on Bosnia and Herzegovina, as Russia’s aggression against Ukraine has raised fears for the stability of the Western Balkans. The massive presence of non-Western stakeholders in the region is sounding alarm bells about a potential conflict (though more limited than in the 1990s). Baroness Helić has tirelessly worked, and justifiably so, to raise awareness about the influence of external actors in Bosnia and Herzegovina and its internal political conflicts.

In her recent thought-provoking and timely article, the Baroness stresses – again justifiably – that Bosnia and Herzegovina’s electoral system needs to be amended. However, she questions the leaked proposal for electoral reform drafted by the High Representative for Bosnia and Herzegovina – who has an international mandate to monitor peace in the country and makes binding decisions to facilitate the resolution of difficulties ‘as he judges necessary’.

The Baroness claims that the US- and UK-backed proposal is ‘a travesty’, but such assumptions deserve more attention, as many pieces are lacking in her mosaic.

Baroness Helić argues that the US and UK are failing to promote ‘civic democracy’, a ‘normal democratic set-up’ and a ‘modern democratic settlement’. In other words, Bosnia must become a Westminster-style, first-past-the-post, majoritarian democracy.

It is presumptuous on her part to criticise the UK, the country that originated the 1998 Belfast Agreement – endorsed by the US – which ended the Northern Ireland conflict. The Baroness is now casting blame on UK and US representatives who have simply recognised that the High Representative is the last resort when it comes to maintaining peace and improving relations between the main population segments. Those officials have understood that, if preserved, the last remnants of power sharing – which has been heavily replaced by pro-majoritarian rules imposed by the international community since 1995 – might ease inter-communal tensions and decrease political conflict between the main national groups.

In addition to those of Belgium, South Tyrol, Switzerland and indeed the EU itself, the British-Irish accord is considered one of the most successful power-sharing agreements in history. The Netherlands would not have succeeded in moving beyond power sharing if it had not implemented a system that allowed Catholics, Protestants, liberals and socialists to share power for 50 years (1917–1967). Are we to be persuaded now that these democracies do not represent ‘normal democratic set-ups’? Brendan O’Leary would ask: ‘what is a normal democracy?’

The biggest stick wielded by Baroness Helić to attack the proposal is the argument of over-representation of the main Bosnian Croat party, the HDZ. She attempts to impress this on readers by offering figures intended to illustrate that Croats in Bosnia and Herzegovina, who comprise 15% of the population, are properly represented.

The Baroness, however, neglects to mention the most crucial aspect. In 2016, the constitutional court ruled that the current electoral law prescribing the election of delegates from the Bosniak, Croat, Serb and ‘Others’ caucuses to the upper chamber of the Federation entity was unconstitutional.

This unconstitutional law permitted the Bosniak majority to elect six of the 17 delegates to the Croat caucus, which is sufficient to nominate the Federation entity’s government without Croat-majority support and control the Federation’s affairs without Croat representatives, which has occurred at least twice (2000–2003 and 2011–2014). The Federation’s upper chamber holds greater political influence in Bosnia and Herzegovina than those mentioned by the Baroness. It was created by the 1994 Washington Agreement, which was signed by both Bosniak and Croat representatives. Representatives are elected to Bosniak and Croat caucuses in the state’s upper chamber, which is instrumental for the passage of state-level bills.

The same occurs for the election of the ‘Others’ caucus (minorities and those who decline to declare themselves members of any of the three constituent peoples – Bosniaks, Croats or Serbs). Bosnian Roma representative Dervo Sejdić, a victorious plaintiff in a case at the European Court of Human Rights (ECHR), claims that in order to enter the ‘Others’ caucus ‘some politicians abuse positions belonging to national minorities (…) most often these abuses come from politicians of Bosniak affiliation [since they are the majority] who declare themselves as Muslims, Bosnians, Herzegovinians, etc’.

Sejdić’s argument is supported by the fact that in the last 20 years, only a single Roma has been elected to the ‘Others’ caucus in the Federation’s House of Peoples, whereas other national minorities – such as Jews, Albanians, Czechs and Italians – have never been elected, even though these seats are reserved for their representatives.

Baroness Helić has, this time unfairly, avoided addressing this discriminatory practice. Conversely, she stresses that the High Representative’s leaked law fails to address discrimination against Jews, Roma and other ‘non-constituent peoples’ – but again, she omits two crucial points. First, ECHR judgments apparently require limited constitutional reform, which cannot be imposed by the High Representative. Second, and more importantly, talks on electoral reform and constitutional amendments have failed. One of the main reasons is that the principal Bosniak party, the Party of Democratic Action (SDA), has boycotted a compromise solution, with its leader admitting that he negotiated in mala fide with Croat parties: ‘turning around, he found a way to make the time pass’.

Another unconvincing argument concerns the election of Željko Komšić as member of the state’s tripartite presidency. The Baroness describes him as a ‘moderate’ who ‘gains support from across ethnic divides’ and asserts that he ‘tries to appeal across ethnic lines’.

Komšić neither campaigned for nor won cross-ethnic support – that is, support from both Bosniak and Croat voters. His support came only from one segment, the Bosniaks. In 2018, when he was elected for the third time, Komšić gained 91.2% of his votes from Bosniak-majority municipalities in which there was virtually no Croatian population. Simply put, the greater the percentage of Bosniaks in a municipality, the greater the number of votes won by Komšić. For example, in Baroness Helić’s hometown, Gračanica, Bosniaks comprise 97% of the population (44,000) and Croats 0.2% (72), and in 2010 Komšić won 11,600 votes and came in first.

Compared to Komšić, other moderate candidates campaigned in Croat-majority areas, such as Boriša Falatar from Naša Stranka. Contrary to being a ‘moderate’, Komšić is in reality a Bosniak ‘token’ candidate who does not even pretend to seek the support of Croat or Serb voters. Rather, Komšić has chosen to cooperate with hardliners from only one of the three national groups and their main party, the SDA – whose electorate he shares. For instance, the SDA’s Šefik Džaferović and Komšić were the most vocal opponents of Croatia’s Pelješac Bridge, which was opened in July despite their political and legal efforts to block its construction. The European Commission allocated €357 million of Cohesion Policy funds to build it.

The Baroness accuses Croatia of ‘betrayal’, forgetting that Zagreb signed the 1995 Dayton Agreement and has the right to request respect for and promote the fulfilment of the commitments made in its Annex 4 (the constitution of Bosnia and Herzegovina). Croatia, at the border of the EU, has stressed many times that its interest is a stable and functional Bosnia and Herzegovina, having especially in mind new developments that appeared after its accession to the EU (such as the refugee crisis and security issues). Croatia might well decide to suspend the Dayton Agreement under international law as a result of breaches of the agreement by Bosnia and Herzegovina; the Dayton Agreement confirms full equality of rights to the three constituent peoples along with all other citizens, and the constitutional court ruled in 2000 that the constitution prohibits ‘any special privilege’ and ‘any domination in governmental structures’ by one of the three constituent peoples. If the largest group, led by its political leaders, continues to dominate the less numerous group, Zagreb will be obliged, as previously stated, to respond in accordance with international law.

Reiterating Baroness Helić’s words, in order to create a new 21st-century social contract for Bosnia and Herzegovina, we must begin by addressing all the grievances that continue to plague the country’s national groups and minorities. A genuine power-sharing electoral system based on the experiences of European federations – one that guarantees full equality to all the main national groups and minorities, and which is based on the respect of human rights – is of the utmost importance for the functioning of Bosnia and Herzegovina and its civic democracy.

The views expressed in this Commentary are the author’s, and do not represent those of RUSI or any other institution.

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