Bosnia’s teapot tempest
In December 2016, the Constitutional Court of Bosnia and Herzegovina (BiH) ruled partially in favor of a complaint lodged by former Croatian Democratic Union (Hrvatska demokratska zajednica, HDZ) politician Božo Ljubić. At issue was the state election law provision dictating that cantons delegate at least one representative from each of the country’s three main ethnic groups to the Federation BiH House of Peoples. Ljubić argued that the Croat influence in cantons with majority Bosniak populations was unfairly diminished in the selection of delegates. He argued that Croat candidates therefore should be elected only out of majority Croat cantons, thereby ensuring that only Croats vote for Croat delegates. In effect, Ljubić asked the Court to forbid the Croats from Sarajevo, Tuzla and Bihać from becoming members of the House of Peoples of Federation of Bosnia and Herzegovina.
The Court partially agreed with Ljubić. The ruling struck down a portion of the country’s election law, stating that it must be amended within six months, without specifying changes. In previous, unrelated cases, the Court prescribed temporary solutions that enabled a ruling implementation; however, it declined to do so in this instance.
This has led some, especially HDZ leadership, to argue that a legal vacuum now exists, claiming that the failure to amend the law could render the October general elections invalid or, alternatively, prevent government formation at the Federation entity level, ultimately leading to a total political paralysis and the collapse of the social security system.
This argument is not legal, but political.
The Constitution of the Federation BiH clearly regulates the election of delegates to the entity and state-level House of Peoples, as based on Annex VII of the Dayton Peace Agreement (DPA). Annex VII provides that all citizens can live and exercise their civil and political rights – including the right to vote and be elected – in their pre-war residence, as well as throughout the country. Furthermore, the Federation entity Constitution states that the 1991 Census has to be used in determining the number of delegates in the Federation House of Peoples. Disregarding this requirement amounts to rewarding the results of ethnic cleansing and genocide.
The said provisions of the Federation Constitution remain fully valid. Moreover, they are in line with the European Court of Human Rights rulings. Consequently, some of the members of the Central Election Commission (CEC) have publicly stated that the CEC can and will use the Federation BiH Constitution and the valid provisions of the state election law to elect delegates to the Federation entity House of Peoples.
The HDZ appears to be misreading the Court’s decision in order to justify its planned prevention of the election of delegates from four cantons controlled by the HDZ (West Herzegovina, Posavina, Livno, and Herzegovina-Neretva) to the Federation entity’s House of Peoples. The ruse of electoral illegitimacy and the resulting crisis is simply another effort toward the HDZ’s territorial ambitions of creating a so-called “third entity.” In this, the HDZ leaders are publicly backed by the Government of Croatia and the Russian Federation.
The HDZ staged a similar production following the 2010 election, when it tried to block government formation by refusing to elect delegates from the four aforementioned cantons. Their abstention from political participation failed – despite support afforded by Milorad Dodik’s SNSD – when the Office of the High Representative (OHR) intervened to enable the formation of the Federation BiH government.
The DPA envisages the OHR as the final arbiter precisely because no other final adjudicating authority exists within the legal order established by the DPA, of which Constitution of BiH is an integral part. Should the HDZ employ the same tactic following the October 2018 elections, the OHR can end the impasse by intervening in the same manner as in 2011 or, alternatively, by simply imposing the Federation BiH 2019 budget before the December 31, 2018 deadline. Marinko Čavara, the HDZ-appointed Federation BiH president, can dissolve the Federation BiH parliament only if the legislative body fails to adopt the entity budget before the end of calendar year.
Furthermore, the HDZ cannot prevent formation of the BiH Council of Ministers, which is elected solely by the state-level House of Representatives. In its 2011 decision, the Constitutional Court recognized the legal status of Sulejman Tihić as a standing member of the BiH House of Peoples despite the HDZ’s and SNSD’s claims that the delegates’ previous mandates expired after new elections had been held. The Court ruled in favor of the continuity of government in principle, meaning that officials must continue performing their tasks until new ones are sworn in. Thus, the state-level legislature continued to function despite HDZ and SNSD belligerence.
Under this precedent, similar attempts at disruption by HDZ (or other) delegates will not lead to the disruption of the BiH legal order, as the HDZ and others falsely claim, nor will it be the end of BiH as an internationally recognized state, as both the HDZ and SNSD hope. The Ljubić ruling will not render invalid the results of the 2018 general election or deny government formation as long as the international community stands by the letter and the spirit of the DPA. The OHR should continue to fulfill the legal obligation thrust upon it by the international guarantors of the DPA, of which the US – the architect of the Bosnian peace – is of supreme importance.
The OHR and the international community cannot allow the 2013 Census results to be used as the basis for determining the formula for allocation of House of People delegates because that would directly violate the Federation BiH Constitution, annul the Annex VII of DPA, and amount to accepting the results of ethnic cleansing.
The implementation of the Ljubić decision in the spirit of HDZ’s interpretation would be equivalent to a contemporary “Three-Fifths Compromise.” The United States has a moral obligation not to allow such “solutions” to be implemented under its watch.
Furthermore, the implementation of the Ljubić decision in the spirit of HDZ’s interpretation would only embolden HDZ’s and SNSD’s ever-growing separatist ambitions, spelling instability and a likely return to conflict in the not too distant future – a security nightmare in the heart of Europe that would be more than welcomed by the Kremlin.
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8 thoughts on “Bosnia’s teapot tempest”
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Professor Serwer, unfortunately most of things written here are strongly biased. What Ljubić asked Constitutional Court is to adjust electoral rules according to BiH 2013 census. Maybe you don’t know, but BiH Croats are greatest victims of ethnic cleansing during BiH war 1992-95. Therefore some areas (example Gorazde Canton) are completely cleaned of Croats. Check actual “Croat” representative in House of People from Gorazde. Ljubić only asked Court to redistribute representatives to areas where most BiH live now. And that’s all. Everything else is your construction.
Zoran Zoric, actually what is being asked is to destroy any hope for democracy in BIH, keeping it on its tribal level, waiting for it to fall apart. E.g. an above nation political party, formed on some of modern ideas, would have no chance of existence by law. SDP was willing to elect a Croat for its president, then a political winner party, which was by Dodik and Covic somehow labeled as outvoting. These ‘changes’, the deal between Dodik and Covic that holds back BIH, an actual blackmail to the International Community or just a way to try to get them tired enough, are all but too obvious for years, to everyone in BIH. What the US and the EU should do, is to find a way to impose sanctions on any individual, then if it doesn’t work on party, and then on institutions who’re preventing BIH’s road toward the EU.
“Truth is not what you want it to be; it is what it is, and you must bend to its power or live a lie.” —Miyamoto Musashi.
The sad part is that even today, as exemplified by Mr. Zornić’s statement, some right-wing Serbs and Croats (and thankfully not all) have the truth that they (and they alone) want to live with. Everyone else is one sided and biased.
Croats are not greatest victims of ethnic cleansing, as was established beyond any reasonable doubt by the ICTY tribunals at The Hague several times. What was established beyond reasonable doubt at the ICTY however was that Bosniaks were the greatest victims of the ethnic cleansing by a double aggression via “joint criminal enterprise” by governments of Serbia and Croatia and their respective allies in BiH. Those who have any doubt should read Prlic, et.al., Karadzic, among other decisions. I challenge Mr. Zornic, or anyone else for that matter to provide a single verdict by an impartial court anywhere in which Croats were kicked out from Gorazde by ARBiH (who held it the entire war) or a single shred of evidence that was not ridiculed by the judges at the ICTY who dismissed a ton of such unsubstantiated arguments.
What has happened however and is happening today is Croat emigration as far away from HDZ politicians as possible. We are witnessing unprecedented Croat emigration both from Croatia (where there are no Serbs or Bosniaks to claim ethnic cleansing) and from BiH, mostly to Germany, Austria and Ireland. Just last few years over 250.000 Croats left Croatia alone. About 60.000 left BiH since 2013. What is interesting however is that this mass emigration of Croats happened during the tenure of HDZ in both Croatia and BiH cantons from which most Croats emigrated.
So who is really the problem?
I think it’s simple.
And obvious.
OK, this was easy challenge:
There are 46 Croats in Gorazde Canton according to 2013 census.
“Croat” representative in Federation BiH’s House of people is Fejzić Edim.
If you don’t trust me, look here:
http://www.parlamentfbih.gov.ba/dom_naroda/v2/hr/stranica.php?idstranica=32
Dear Bosniaks, this is pure example how to destroy Bosnia and Herzegovina. Don’t do this to Croats. This is what Slobodan Milosevic did in former Yugoslavia (remember Sejdo Bajramovic)
Zoran Kresic writes:
Without going into Your freedom of expression and standing, I must say that recent views regarding Bosnia and Hercegovina are extremely unilateral and biased.
It is true that the Croatians are the least numerous national group and that majority Bosniaks are trying to forcefully dominate them.
The last time Milosevic tried to make up the dominance of the Serbs, everything ended in bloodshed.
The same scenario is repeating. Milosevic tried in 1990 to abolish the equality of the Yugoslav republics and introduce the propaganda system one man one vote. And it just does not work here. I do not know if you are aware, but You are supporting those whom Milosevic was a role model. Bosniac side.
Ibrahim Halilovic writes in an “open letter” to me:
Dear Mr. Serwer!
I have read in the Bosnian language translated your Blog post regarding coming the Russians to the Balkans.
I would like to remind you, you and Holbrooke on the top of USA negotiations in Dayton established so-called Republika Srpska after genocide and pawed the way to Russian to come.
To whom are you selling the fog?
You are also lecturing about Bosnia law. Did you forget that you contributed in the creation of the monster state and its illegal Constitution which is in the opposite site of the reason, international and USA laws.
The corrupt Bosnian media like to quote you and praise you as a scholar and the best expert on the Balkans problems. They try to sell us the story about you as our friend. You are not!
I think you are the snake in the grass and you among Holbrooke and Clinton contributed to our suicide.
Bosnian media make us think we forget both your and their unacceptable role in our recent history. They embraced Dayton as a good solution, but I think the Dayton Peace Agreement is a swindle or humbug. You contributed in creating those.
I suggest you let our problems to us to be solved! If we follow you, we will disappear with our 1.000 years old state.
This is the Dayton intention and plan.
But, we will fight and we will not give up. We know who our enemies are, and one among them you are.
Please, take Dayton for us and present it to the USA Congress as new the USA Constitution.
Ibrahim Halilovic,
former TV Sarajevo reporter, one of the leaders of the Facebook group that request to return legal Constitution of the Republic of Bosnia and Herzegovina that numbers nearly 63.000 members
We can look back for 10 years, or every election cycle, to see what was done and judge on that. We can look back 25 years and be angry, we can look back 75 years and be angry, we can look back 500 years and be angry. Or we can look at the best in people, and for the best people, and into the future. Mr Serwer is one of the best people.