Author: Dr. David de Bruijn, lecturer at the Faculty of Philosophy at the University of Auburn, Alabama, in the United States of America. He tweets at @dmdebruijn.
Bosnia and Herzegovina (BiH) is notorious for its complex form of government. Forged in the cauldron of compromises that are the Dayton Peace Accords (DPA), the state features no less than: two entities (the Serb-dominated Republika Srpska (RS) and the Bosniak-Croat shared Federation of Bosnia and Herzegovina (FBiH)); three "constituent nations"; a three-person presidency shared among these latter ethnic groups; several more or less ethnically-configured houses of parliament; and many other institutional and electoral idiosyncrasies.
These complicated political institutions have often been the target of judicial interventions. In August 2023, a new Kovačević verdict from the European Court for Human Rights (ECHR) added to these. The story of the case is as follows. The plaintiff, Slaven Kovačević, works as an advisor to Željko Komšić, who currently serves as the controversial Croat member of BiH‘s three-member presidency. (More on this controversy shortly). Kovačević, while himself of Croat origin, does not identify with any of BiH‘s three "constituent nations". Given the electoral structure of BiH, this entails several problems for someone in the position of Kovačević. Not identifying with one of the three constituent peoples, Kovačević is ineligible to sit in the parliament‘s upper chamber (the "House of Peoples"). Just so, as a Sarajevo-resident, Kovačević cannot vote for the Serb presidential candidate, just as residents of the Republika Srpska cannot elect the Bosniak or Croat candidates. Of such facts, the Court holds that "this combination of territorial and ethnic requirements amounted to discriminatory treatment."
On its face, the above facts may seem clear: BiH‘s Dayton constitution discriminates against citizens like Dr. Kovačević, and its relevant provisions should be abolished. However, closer inspection of the case‘s political context reveals the conclusions are anything but so simple.
It is important to note that Kovačević is not exactly the only recent judicial decision bearing down on the political process in BiH. In addition to Kovačević, there are rulings like Zornić and Sejdić-Finci, similarly ruling that individuals outside the constituent nations should be eligible for high electoral office. Further, there is the Ljubić decision from BiH‘s own chief court, insisting that the electoral rights of Croats as a constituent people be respected. Along the lines of Ljubić there is the ongoing process surrounding electoral reforms enacted by High-Representative Christian Schmidt in October of 2022. Frequently, these judicial verdicts are stipulated as necessary markers for progress on BiH‘s all-important path to EU-candidacy, even if the verdicts are apparently in some tension (as e.g. in Ljubić‘s emphasis on the rights of the "constituent peoples" and Kovačević‘s impetus against such constitutional provisions). Taken together, a picture emanates of a political class both under constant pressure coming from both benefits and flaws in the Dayton structure ánd continuously motivated to gin up further legal procedures to add to the arsenal of verdicts on their preferred side. Needless to say, this is far from healthy.
Here it is helpful to look a little more closely at the Kovačević case. As stated in the ECHR ruling, Kovačević claims that "candidates best representing his political views were not from the “right” Entity and/or of the “right” ethnic origin, so he had not been able to vote for them in the 2022 legislative and presidential elections." That is, in effect, Kovačević was not able to vote for the Serb member of the BiH presidency. But as stated: Kovačević is an advisor to the Croat-member to this same presidency. Is the thought that Kovačević had intended to vote for the Serb presidential candidate, but is an advisor to the Croat president all the same? Presumably not. To be sure, this in no way undermines the overall tenor of the Kovačević ruling: that any citizen should be able to vote for any presidential candidate. But it does make clear another point: that the Kovačević case grows out of BiH‘s political dynamics, rather than merely the plight of a frustrated voter.
To these dynamics we should add the above-referenced fact: that Željko Komšić, while serving as the Croat member to the presidency, is controversial among BiH‘s Croat electorate. This is because, as the electoral rules in the FBiH have de facto made possible, Komšić is elected to the Croat seat in the presidency very largely on the basis of Bosniak rather than Croat votes. In the elections of 2018, Komšić won none of the municipalities and towns in which Croats have a demographic majority. Conversely, Komšić‘s opponent in the elections won all but one of the districts that house more than twenty percent Croat voters.
Nor are tensions surrounding the Croat electoral position the most strained feature in BiH‘s politics. In effect, any new electoral model would require navigating an entirely new path for Serbs, Bosniaks and Croats to inhabit the same political and national unit. Here the most daunting challenge would surely be to interest the Republika Srpska in any change to the current system. In turn, this would at a minimum require consensus and cooperation between Bosniaks and Croats. However, the above-referenced problems complicate even this prospect, with Sarajevo hoping to consolidate unitary demographic dominance in the Federation, and Croats feeling accordingly squeezed.
All these factors point to the basic truth that the compromises of Dayton grew out of considerations of war and peace. Today‘s perspective cannot simply assume that these broader issues of conflict, past and present, are simply not relevant. In a stark example, the Kovačević ruling asserts the aspirational claim that, notwithstanding the fraught and violent origins of BiH‘s Dayton compromises, "peace and dialogue [are] best maintained by [...] the ability to freely exercise one’s right to vote." If it only reality was this straightforward. Indeed, the very notion of simple unitary electoral system with its majoritarian consequences— along with BiH‘s complicated mix of ethnic loyalties and ambitions — played a role among the original sources of conflict.
Overall, the central observation must that be any attempt to restructure BiH‘s institutions and secure the full implementation of international law in BiH must take profoundly seriously the ultimately political character of these matters. Abstract democratic merits notwithstanding, no judicial ruling can change this basic fact.