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The failure of negotiations on electoral reform in BiH – a lesson for international and domestic actors

BiH and EU flags; Photo: European Commission

Negotiations on electoral reform in Bosnia and Herzegovina failed this time as well. At the end of March, negotiations on amendments to the Electoral Law ended without results. Despite the efforts of the international negotiators from the United States and European Union, six domestic political parties have failed to agree on repealing discriminatory provisions of the current law that prevent all citizens from voting and being elected, regardless of nationality.

Croats insist on the election of a „legitimate Croat member of the BiH Presidency“, as well as a delegate to the House of Peoples of the Federation and the House of Peoples of the BiH Parliamentary Assembly. The Croatian side demands that where the Constitution and the Electoral law say „Croat“, „Bosniak“, or „Serb“, it says „representative of the Croatian constituent people and all other citizens,“ and also for the Bosniak and Serb members of the BiH Presidency.

Bosniak and civic parties in BiH have proposed deleting the national determinants of the BiH Presidency from the BiH Constitution and Election Law. The ruling party in Republika Srpska is not interested in electoral reform, and the Bosnian Serb leader sees the failure of the negotiations as unequivocal proof “where the problem lies in BiH and that the problem is not called Republika Srpska or Milorad Dodik.”

According to the current BiH Constitution, three members are elected to the Presidency: a Bosniak and a Croat from the Federation of BiH (FBiH), and a Serb from the Republika Srpska (RS). Due to this determinant in the highest legal act of BiH, Jews, Roma, and other “non-constituent” peoples, the possibility of running and electing members of the Presidency, delegates in the House of Peoples of the BiH Parliamentary Assembly, which has five Bosniaks, Croats, and Serbs, is virtually disabled.

Due to such electoral legislation, the European Court of Human Rights issued four decisions against BiH and the BiH Constitutional Court one. None of these verdicts have been implemented so far.

Could the international community have done more?

International mediators did not hide their disappointment after it became clear that negotiations on electoral reform eventually failed. Director of the European External Action Service Angelina Einhorst said that the discussion had been exhausted for the past nine months.

“This is a loss, a missed opportunity for domestic leaders. “Now, with such events on European soil and the geopolitical scene, it was an opportunity to express our readiness to reach a consensus,” she said.

The American ambassador to BiH, Michael Murphy, was no less disappointed. He assessed that the agreement would prevent the refusal to make the FBiH institutions more functional. Murphy then announced that the United States would persevere in seeking the responsibility of those who “hold the future of BiH hostage.”

Adnan Ćerimagić, ESI’s Senior Analyst for the Western Balkans,  says for the EWB that there is no legal obstacle to holding the elections as planned in October 2022, but under the same conditions as in October 2018.

„If by then EU member states would agree on a credible, concrete, and achievable goal for six Western Balkans states then elections and new governments in Bosnia and Herzegovina could be formed with an aim to take that offer seriously“, says Ćerimagić.

He explains that electoral law reforms, in any European democracy, require a lot of time and energy for necessary majorities in the parliament to build consensus.

„It is therefore not unusual that in Bosnia and Herzegovina finding an agreement on this issue takes so long. What I find unusual though are the approaches of US-EU facilitators and main domestic political actors. The EU-US facilitators treated these talks as if they were taking place between two leaders of warring sides. With almost full disregard of domestic institutions, their procedures or how many parties were required for constitutional and electoral reforms“, Ćerimagić says.

He adds that domestic and international actors should learn from the experience of the electoral reform process when they engage in future talks.

Toby Vogel from Democratization Policy Council assesses that both the EU and the US have for too long closed their eyes to the real sources of the situation in BiH.

„They were, and still are, reluctant to confront the political elites (and the business elites that are their allies) that benefit so handsomely from the structures and incentives put in place by the Dayton system and as a result have no interest in adapting them to the needs of a society that wants to move on“, says Vogel.

According to him, the international community above all the EU, which had the leadership role in BiH since 2006 or so – has empowered the local actors whose actions have produced the current impasse. He adds that the international community has enabled the status quo to continue for so long.

„The EU has long ago betrayed the transformational potential of accession, instead of taking a technocratic approach that focused on processes and commitments rather than actual change on the ground“, says Vogel.

EU’s response to those who undermine stability in BiH

Although committed to the stability of Bosnia and Herzegovina, the European Union is failing to provide a unified response to those political leaders believed to be destabilizing the functioning of BiH. This primarily refers to Bosnian leader Milorad Dodik.

Toby Vogel explains for EWB that for the first time since the war, the one EU member state, Viktor Orbán’s Hungary – openly supports those who seek to weaken the State in BiH – Vladimir Putin’s main clients in the region, Milorad Dodik, Aleksandar Vučić, and Dragan Čović.

“Orbán is siding with Putin’s position in the Balkans just at the moment when Europe is engulfed in a struggle between the forces of liberal democracy, spearheaded by Ukraine, against the retrograde forces aligned with the Kremlin”, says Vogel.

According to Vogel, on the EU level, Orbán  has made it clear that he wouldn’t support tougher sanctions against Russia, and he agreed to the current sanctions against the Kremlin only on the condition that the EU accept a de facto moratorium of two years on sanctions against the Kremlin’s main assets in the Balkans, Dodik, and Čović.

He stresses that Croatia, meanwhile, has been completely obsessed with cementing the HDZ’s electoral position in BiH. Croatia’s foreign policy at present has only one topic, the BiH election law. Changing it is the only thing Croatia cares about in the EU.
Ćerimagić believes that  everything else in Bosnia-Herzegovina became less urgent when Milorad Dodik and his SNSD party adopted a plan in October 2021 to collapse the institutional and constitutional architecture of Bosnia-Herzegovina.
“In this plan – which got support of coalition partners of SNSD and the Russian Ambassador – ruling coalition in Republika Srpska agreed to unilateraly and illegaly roll back over twenty years of post-conflict and EU related reforms. In their plan they also threatened to use force against those that object it. Instead of focusing on fully responding to this major threat, Hungary has done everything it could to minimise the danger of this plan and actions that followed, combined with offering protection for main political actors against EU sanctions”, he says.
Vogel and Ćerimagić do not believe that the EU will succeed in reaching an agreement in the next period and impose sanctions on Milorad Dodik.
“I cannot see this happening at all in the next several years. In March, when the EU sanctions framework for BiH came up for renewal, Hungary demanded that listing individuals to be sanctioned should be done by unanimity rather than a weighted majority, as had been the case since 2011, and that it would veto the renewal if this change wasn’t undertaken. Greece for whatever reasons assisted Hungary by proposing that the new unanimity-based procedure apply for two years rather than one, thereby making it safe for Dodik for at least the next two year”, explains Vogel.
Adnan Ćerimanagić concludes that, despite many friends of BiH and Western Balkans in the EU, there was never a realistic chance for EU to change its decision-making rules and traditions, and to decide on sanctions in BiH without all 27 being in favour.

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