Bosnia and Herzegovina – time for constitutional reform

The European Court of Human Rights’ ruling on the discriminatory nature of Bosnia and Herzegovina’s constitution should provide fresh impetuses to stalled reform talks.

By Luca Roberto Foti

The constitution of Bosnia and Herzegovina has been intensely scrutinized by the European Court of Human Rights in Strasbourg, which ruled that some of its articles discriminate against ethnic minorities.

The case originated from an appeal by two citizens of the Federation of Bosnia and Herzegovina – Jakob Finci, a Jew, and Dervo Sejdić, a prominent member of the Roma community. Both held important positions in the central administration, but have been prevented from standing for election to both the Presidency and the House of Peoples. The cause of their ineligibility, as justified by the Central Election Commission, is their ethnic origin.

The constitution of Bosnia and Herzegovina, in particular Articles IV§1, V and X§1, precludes non-constituent ethnicities from the highest positions of office; that is everybody but Serbs, Croats and Bosniaks, the three constituent peoples

These provisions – mainly inspired by a ‘consociational’ approach to post-conflict regulation – were seen as the only way to guarantee stability in Bosnia and Herzegovina in 1995. The idea that the institutional structure should be built upon, rather then transcending, the explicit recognition of ethnic divisions largely determined the power-sharing and decision-making system; a somewhat convoluted way of guaranteeing the demands of all the parties involved in an ethnically-motivated civil war.

Whilst such provisions were deemed necessary to end a conflict that saw the worst ethnic massacres on European soil since World War II, they were also intended to create a transitional period between warfare and normal statehood; from ethnic rivalry to inter-ethnic cooperation.

However, this system of power-sharing, and its related constitutional provisions, has been reluctantly accepted by the international community. Though concerned that they were in direct violations of human rights principles, they were widely viewed as the only way to stop the escalation of violence and to reach a stable agreement between all parties. Nevertheless, the insertion of Article II into the Constitution by international mediators provided a legal instrument for phasing out these contested norms in the future.

Indeed, according to Article II§2 of the Constitution of Bosnia and Herzegovina, “the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina” and “shall have priority over all other law”.

By asserting the supremacy of the provisions of the European Convention of Human Rights, the international community sought to push for gradual reform of the constitution of Bosnia and Herzegovina in order to meet European standards.

Furthermore, in becoming a member of the Council of Europe, Bosnia and Herzegovina also undertook “to review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary”.

Despite growing pressure from EU member states and the US, however, the political parties in Bosnia and Herzegovina have yet to reach an agreement on constitutional reform; and it is now unlikely that the issue will be discussed during election year, where political confrontation will inevitably employ the instrument of ethnic rivalry in order to win consensus from voters.

What is under discussion is not merely the electoral law but the whole structure of Bosnia and Herzegovina. Indeed, reform of the electoral system strictly implies a broader change in the balance of power among the constituent ethnic groups.

Meeting the demands of the Council of Europe and the international community for constitutional reforms, meanwhile, would also mean transitioning from the current system of statehood – which legitimises the division of the State into two strongly autonomous Entities based on ethnic affiliation – towards a more centralised State.

To reach an agreement of such importance can be extremely challenging in a country where the road to cooperation lies on a very narrow path, threatened by seemingly irreconcilable positions – Serbs who wish to maintain the status quo and continue to challenge the authority of the High Representative; Croats who are unhappy with their current position and seek a ‘third Entity’; and Bosniaks who push for a stronger, centralised state.

Though the European Court of Human Rights’ verdict that Bosnia and Herzegovina’s constitution violates Article 14 of the Convention and Article 1 of Protocol N° 12 – stating a firm prohibition of discrimination on any ground – cannot in itself bring about change, it will surely renew pressure on the respective political parties to quickly secure a much-needed agreement on constitutional reform.

Luca Roberto Foti is a former student of International Relations at the University of Florence. He graduated with a dissertation on the ‘Macedonian Question’ and has a long-standing interest in the history of the Balkans.