Published On: Uto, sij 26th, 2021

The next High Representative must reconsider European power-sharing solutions for Bosnia

Germany’s candidate for the position of High Representative for Bosnia and Herzegovina Christian Schmidt, on his way to an informal meeting of EU ministers for agriculture and fisheries. Photo: Estonian EU presidency 2017 wikimedia.org

Is it time Bosnia and Herzegovina applied power-sharing models found in other divided societies in Europe? The next High Representative must continue working towards preserving the fragile balance between three ethnic groups in the country.

by Ivan Pepić l NewEasternEurope

Relations between the EU and Western Balkans will intensify this year. In addition to the present well-functioning Belgrade-Pristina negotiations facilitated by the European Union Special Representative (EUSR), Miroslav Lajčák, it appears that European leaders are ready to untie the Bosnian knot.

Germany announced that it wants Valentin Inzko, the current High Representative for Bosnia and Herzegovina, to be replaced with Christian Schmidt, the former federal agriculture minister from the Bavarian CSU. This will apparently occur during the first six months of 2021.

The Office of the High Representative for Bosnia and Herzegovina (OHR) was established in 1995 under the still-valid Dayton Agreement, which brought peace to the country. Annex 10 of this agreement defines the tasks of the OHR. The High Representative would be in charge of monitoring the civilian aspects of the peace settlement and coordinating the activities of the domestic and international organisations involved in the peace process. The creation of the OHR and its “civilian powers” made sense, and it was welcomed after four years of war.

A week before the signing of the peace agreement by representatives of the international community and the opposing sides in December 1995, the successors of the International Conference on the Former Yugoslavia established, at the London Conference, the Peace Implementation Council (PIC) as a new body “to manage peace implementation.” The PIC is composed of 55 countries, but has a Steering Board that consists of “big donors,” such as the European Commission, France, Germany, Russia, Turkey and the United States. They are the main leaders of the PIC.

Initially, the PIC confined the role of the OHR to monitoring and reporting, in accordance with Annex 10 of the Dayton Agreement. In 1997, at the PIC Conference in Bonn, however, the High Representative was given “executive powers” in order “to facilitate the resolution of difficulties by making binding decisions, as he judges necessary.”

It is important to point out that the PIC Steering Board has not been given power by any international organisation and does not have the status of a UN subsidiary body. It is therefore unclear how the OHR has been transformed from programme coordinator into a “European protector” in Bosnia and Herzegovina with executive binding superpowers.

The High Representative naturally responded that “if you read Dayton very carefully, Annex 10 even gives me the possibility to interpret my own authorities and powers,” as did the former position holder, Carlos Westendorp, in 1997. Under international law, however, international organisations cannot generate or determine their own competencies and powers.

Since the 1997 Bonn Conference, the OHR has imposed approximately 1,000 binding decisions without input from local parliaments. They include decisions on removals and suspensions of public officials, economic and judicial issues, state symbols and also substantial changes in the law.

The binding decisions have deepened divisions between the three constituent peoples, Bosniaks, Croats and Serbs – all fully equal according to the country’s constitution. Instead of preserving the delicate power-sharing balance between the three ethnic groups, which was a prerequisite for peace, the OHR has endorsed majoritarian-like electoral rules and enabled the centralisation of power, which rewards Bosniak politicians who represent the largest ethnic group.

The OHR has imposed dozens of binding amendments to the election legislation and the constitution of the Bosniak-Croat Federation. By doing so, the OHR suspended power-sharing between the two communities. The OHR also imposed the electoral rules for Mostar in 2004, which later were proclaimed unconstitutional by the country’s constitutional court. This is the fundamental reason for the absence of elections in Mostar over the last twelve years.

Since the OHR’s interventions in 2000, Bosniak voters have been able to elect Croat representatives (three times smaller per population) to the upper chamber of the Federation’s parliament. As a result, the Croat representatives who won the absolute majority of votes were excluded from the executive at least twice. The constitutional court, whose decision has remained unimplemented since 2016, annulled these electoral rules and ruled that legitimate representation of the three constituent peoples must be guaranteed “at all administrative-political levels.” 

The OHR has yet to attempt to fix the electoral rule, which enabled Zeljko Komsic to be elected by Bosniak voters to the Croat seat of the tripartite state’s presidency in 2006, 2010 and 2018. Komsic, who has in reality been cast in the role of “Uncle Sam,” as defined by the political scientist Jon Fraenkel, lost in all 23 Croat-majority municipalities, where he obtained only 9,877 votes (or 9.3p per cent) of the 225,500 votes that he won across the Federation entity. In the same municipalities, his major opponent won 106,445 (or 75.3 per cent) of the 154,819 total votes in 2018. The OHR, however, has been supportive of such a unilateral (!) cross-ethnic voting system which guarantees the domination of the largest ethnic group.

Twenty-five years after Dayton, certain members of the PIC and OHR continue to argue that unitarism works better for institution building than power-sharing arrangements. Patrice McMahon and Jon Western calculated in 2009 that 14 billion US dollars of international aid reached Bosnia and Herzegovina in the post-war period, which, per capita, makes the post-World War II reconstructions of Germany and other countries seem modest. Hundreds of international agencies, NGOs, governments, intergovernmental and UN-led organisations were involved in what McMahon and Western describe as the “most extensive and innovative democratisation experiment in history.”

Despite all these efforts, unitarist-style institution building has served only to fuel Bosniak plans for domination, Serb dreams of separatism and Croats’ raging frustration.

Allow me therefore to offer several proposals for the next High Representative’s consideration.

  • First, be cognisant of and then apply the power-sharing models that exist in deeply-divided European societies. South Tyrol implemented power-sharing arrangements which brought stability between the Italian- and German-speaking communities. Belgium, the heart of the EU, has progressed from a unitary state to become a federation in which Walloons and Flemish, and also the German-speaking community, share power and collective institutions. None of the groups are permitted to dominate over the others. Spain has guaranteed autonomy for specific regions and peoples within the country. Several multilingual Swiss cantons guarantee governmental seats for smaller speaking communities. The EU itself possesses all the attributes of a power-sharing democracy.
  • Second, provide incentives for Bosniak leaders, as representatives of the dominant ethnic group, to re-embrace power-sharing and abstain from unilateral domination. History has taught us that the hegemony of one national group in former Yugoslavia leads to conflict and violence. The division of Cyprus, for instance, began in 1963 after the main representative of the dominant group, Archbishop Makarios, imposed 13 amendments which shattered the delicate balance of power between Greek and Turkish Cypriots.
  • Third, do not be deceived by moralistic arguments from any of the leaders of the ethnic groups. In Belgium, the Day of the Walloon region is celebrated each third Sunday of September, commemorating its participation in the Belgian Revolution in 1830 against the Netherlands. The Flemish community celebrates its day on July 11th, which marks the Battle of the Golden Spurs against Philip IV of France. In Bosnia and Herzegovina, each community has its own holidays, as well as language, religion, culture and history, even in regard to the war in the 1990s. Fracturing that delicate balance in the name of a “new (Bosnian) identity,” which in reality favours the ethnic majority, would trigger revanchism and lead to the country’s disintegration.
The author is an Associate of the Institute for Social and Political Research in Mostar, Bosnia and Herzegovina.