The Bonn Powers in Bosnia and Herzegovina: Between a rock and a hard place

After polls closed on the eve of Bosnia and Herzegovina’s recent general elections, the internationally appointed High Representative of Bosnia and Herzegovina imposed amendments to the Constitution of the Federation and to the Election Law of BiH, which caught local stakeholders off guard. The stated aim of the measures was to improve the “functionality” of the Federation, ensure timely implementation of the election results, and to set the stage for further electoral and constitutional reform. Does the absence of sincere domestic responsibility and leadership make the decisions of the High Representative legitimate? And how useful are ad-hoc but monumental changes when there is no strategy for further (long-term) “functionalization” of the system? – writes Professor Maja Sahadžić

Indefinite presence of OHR

Ever since the end of the Bosnian War (1992-1995), Bosnia and Herzegovina (BiH) has been placed under the indefinite presence of the Office of the High Representative (OHR). The Office itself was instituted in Annex 10 of the Dayton Peace Agreement (DPA) to support the implementation of the civilian aspects of the DPA. Initially, the signatories envisaged that this post-conflict supporting role would transform so that the implementation of the DPA would be carried out using local capacities and resources. Nevertheless, in 1997 the powers of the OHR were extended by the Peace Implementation Council (PIC), the OHR’s international overseeing and financing body, made up of 55 countries and international organizations. The High Representative for BiH (HR), appointed by the PIC, is mandated to act as they judge necessary to implement the DPA, which the High Representative has interpreted to mean imposing substantial legislation, judicial reform, and even annulling constitutional court decisions. The so-called Bonn Powers further empower the High Representative to adopt binding decisions and remove public officials from office.

BiH is an ethno-territorial creation: it is subdivided into two Entities – the Bosniak-Croat majority Federation of BiH (with 10 cantons) the Serb-majority Republika Srpska – and one autonomous district – the Brčko District. The High Representative for BiH has used the Bonn Powers most frequently to harmonize the Entities’ constitutions with the Constitution of BiH and to transfer the powers from the Entities to the state level for functionality. While after 2014 there was a long period of inactivity in the OHR, after the appointment of the new HR, Christian Schmidt, in 2021, the OHR has been centrally involved in BiH politics, to both applause and criticism.

Bonn Powers on the election eve

On the eve of the 2 October 2022 general elections, just after the polls closed, the HR struck by imposing 21 amendments to the Constitution of the Federation of BiH as well as amendments to the Election Law of BiH. The decisions affect the post-election establishment of indirectly elected bodies by increasing the size of the House of Peoples, the upper house of the FBiH, and timely elections of delegates of the House of Peoples by the cantonal assemblies. They also streamline the process for the nomination of the President and Vice-President of the FBiH, introduce unblocking mechanisms by simplifying procedures and introducing deadlines, introduce principles of cooperation, facilitate the appointment of judges to the Constitutional Court of the FBiH, and oblige the parliamentary bodies of the FBiH to solicit citizen participation. This intriguing circumstance caught local stakeholders off guard and caused many international stakeholders to raise an eyebrow. The representation of the European Union in BiH simply took note of the decisions stating that this was a decision of the HR alone and regretting that political parties could not agree on a balanced and negotiated package of reforms. Nevertheless, other important stakeholders fully supported the decisions. The Embassy of the United States in Bosnia and Herzegovina issued a press statement in which it called the decisions urgent and necessary while the Ambassador of the United Kingdom to Bosnia and Herzegovina stated that the decisions were necessary because of the absence of sincere domestic responsibility and leadership. The OHR was not a bystander anymore. But, then again, it is helpful to understand what was going on in BiH to provoke such an intervention.

Why return to the Bonn Powers?  

BiH has a complicated constitutional and political system, but neither more nor less complicated than other federal-like states, for example, Belgium. What sets BiH apart from Belgium and other similar systems is an absence of domestic responsibility and leadership. The political establishment in BiH is flippant when it comes to pursuing necessary constitutional changes but extremely mindful when it comes to supporting ethnic strongholds of the three constituent peoples (Bosniaks, Croats, and Serbs). This has led to severe dysfunction and institutional crisis. Since 2015, the FBiH has functioned under a so-called technical mandate because the results of the 2018 general elections remain unimplemented, while the Constitutional Court of FBiH (CCFBiH) has been paralyzed by the inability to elect judges.

An important dimension to this crisis is the 2016 Ljubić case, brought by a prominent member of HDZ BiH, the strongest Croat political party in BiH, in which the Constitutional Court of BiH (CCBiH) ruled that certain provisions of the Election Law are not in conformity with the Constitution of BiH. In particular, the Court ruled that the obligation of the 10 cantonal assemblies in FBiH to delegate at least one delegate to the House of Peoples from each of the three main ethnic groups, without regard to the numbers of each of these ethnic groups living in the canton, violated the principles of the ‘constituency of peoples’ and equality. In other words, the CCBiH annulled the quotas and ruled that the House of Peoples should proportionally represent the constituent peoples. The CCBiH introduced the division of mandates based on the latest census from 2013, instead of the 1991 census, through an Instruction adopted by the Central Election Commission.

Proportionate representation in the House of Peoples is meant to follow the 1991 census until Annex 7 of the peace agreement, on Refugees and Displaced Persons, is fully implemented.

What makes the Instruction controversial is that according to the Constitution of the FBiH, the constituent peoples and “Others” (those that do not declare themselves as constituent peoples) shall be proportionately represented; however, such proportionate representation shall follow the 1991 census until Annex 7 of the DPA, Agreement on Refugees and Displaced Persons, is fully implemented. One of the issues is that the comparison between two censuses clearly illustrates the consequences of the Bosnian War, since places where the population used to be mixed have now become ethnically homogeneous. Another concern is that the full implementation of Annex 7 depends on the assessment of the OHR that should deliver a decision to confirm it. The outcomes of the Ljubić case have thus become a contentious issue followed by heated discussions among the political establishment of all three constituent peoples in BiH.

Importantly, HDZ BiH, technically the Croat leadership in BiH, has used the Ljubić case to argue for changes in the Election Law by, for example, redrawing electoral units that would suit them. Since the Bosniak nationalist parties pushed back, HDZ BiH has blocked the functioning of the legislature and executive government in FBiH. Therefore, on the evening of the elections, the High Representative’s stated aim of the measures was to improve “functionality of the Federation of Bosnia and Herzegovina”, ensure “timely implementation of the results of the October 2022 elections” and to set “the stage for further electoral and constitutional reform.”

The impact on the constitutional system? More of the same.

The election-eve decisions of the HR did not tackle the quota issue, but they did tackle the number and proportional representation of the constituent peoples, based on the 2013 census. The HR’s decision increased the number of seats in the Federation House of Peoples from 17 to 23 seats per constituent people. Because the Schmidt decisions appear to give Croats a more prominent place, it is understood that the decisions are an appeasement to HDZ BiH. This has a serious range of political and geo-political consequences, especially since Croatia’s government also took part in voicing their concerns. First, the changes Schmidt enacted meant more seats for HDZ BiH in the House of Peoples, as they historically receive the most votes from Croats. Second, critics perceived the law as legitimizing ethnic cleansing of Bosniaks committed in cantons with a Croat majority. However, on second thought, considering the perceived underrepresentation of Croats in institutions at the state level in BiH, Schmidt’s principles may be justified, even though it may not be seen as fair by other communities.

The decision also for the first time facilitates “Others” to be elected in each canton.

The decision also for the first time facilitates “Others” to be elected in each canton, which was not the case previously. Nevertheless, when it comes to the delegates elected by the cantonal assemblies, the direct relationship between ethnic groups and their representatives in the House of Peoples may reinforce ethnic strongholds. This is because each ethnic group solely is in charge of delegating the members of the House of Peoples.

The provisions that remove the ability of the delegates to block the election of the executive in FBiH or provisions that remove the power of the President of the FBiH to name judges of the CCFBiH are certainly positive, especially because these functions have been abused for ethnopolitical control. What strikes one the most is that there are no sanctions for lack of compliance, especially when establishing deadlines for the adoption of laws. Questions remain: what happens if the laws are not adopted, if chairs refuse to introduce the items on the agenda, etc. Nevertheless, the HR decisions seemingly do not change much, since the prospects are still very high that the Constitution of FBiH will not be respected, in turn resulting in a very similar scenario that motivated the decisions in the first place. Perhaps the HR envisages stepping in again if there is a lack of compliance.

Interestingly enough, the decisions also introduced the principle of loyal cooperation, which reads fairly counter-intuitively. Other federal-like constitutions (Belgium, Italy, Spain, South Africa, UK) have also introduced the principle; however, this requires at least some federal culture, that BiH simply does not (yet) have. On a similar note, citizen participation remains a declarative item on the list, just as the effort of the EU Delegation to sponsor a project on citizen’s assemblies, which produced recommendations that did not align with international and domestic political policies and priorities, which were then hidden from the public eye.

While the domestic players skillfully transferred the responsibility for their failures to the HR, it also seems that the new HR could not resist flexing some muscles.

Importantly, while the domestic players skillfully transferred the responsibility for their failures to the HR, it also seems that the new HR could not resist flexing some muscles. The question is whether this lack of responsibility and abundance of local incompetence makes the decision of the OHR legitimate. How useful are ad-hoc but monumental changes when there is no strategy for further (long-term) “functionalization” of the system?

Where to from here?

The endgame of the decisions has only been speculated about. An important aspect remains untouched. In 2009, in the landmark case of Sejdić and Finci v. BiH, the European Court of Human Rights (ECtHR) ruled that constitutional provisions by which the “Others” are ineligible to run for elections to the three-member rotating Presidency of BiH (composed of one Bosniak, Croat, and Serb each) are discriminatory. However, this decision, together with other decisions of a similar character (Zornić v. BiH, Pilav v. BiH, Šlaku v. BiH, and Pudarić v. BiH), only kept piling up without ever being implemented. The Parliamentary Assembly of BiH proved to be inert in harmonizing the constitutional and legal provisions with the ECtHR decisions, mainly because the ethnic strongholds have remained the fundamental factor in the system of government. The OHR has the jurisdiction to implement the decisions of the ECtHR but chose not to do it. Since the decisions of the ECtHR were not considered, it is only right to question whether the decisions of the HR, which were not necessarily related to the Constitution of BiH, were made ultra vires.  Another thing that the OHR chose not to tackle is the 2015 appeal of Željko Komšić to the Constitutional Court of BiH, in which the Court decided that at the time of the election of the President and two Vice-Presidents of the FBiH, there should be a choice for the “Others” to also be elected.

What the HR has made known is that the next steps will be the continuation of what has been started in the FBiH. The expectations are certainly high regarding the potential interventions in the Constitution of Republika Srpska. At the same time, EU parliamentarians such as Tineke Strik have called for an explanation for what they called undemocratic decisions, detrimental to the rights of BiH citizens to free elections. But, then again, having OHR and the HR is not democratic itself either. For the time being, BiH remains between a rock and a hard place, a hostage state of the HR, international stakeholders, the local political establishment, and its people that cannot exercise their  democratic will without interference, even on election eve. This also means that they might have to wait a bit longer for candidacy status to the European Union (EU). An ethno-territorial system that continues to disregard the “Others” despite the ECtHR’s decisions and the HR challenging the democratic foundations of the system is certainly a bad combination for obtaining a candidacy status. The EU simply took a note of Schmidt’s actions implying that the actions of that kind were not necessarily desirable.

Maja Sahadžić is Assistant Professor at the University of Antwerp, Senior Researcher at the Law Institute in Bosnia and Herzegovina, and Co-Chair of the Committee on New Directions in Scholarship of the ICON S. Her research revolves around multilevel governance, dynamic legitimacy, dynamic stability, constitutional asymmetries, “post” systems, alternative conflict solutions, constitutionalism under extreme measures, authoritarianism, constitutional values and principles, and fundamental rights.

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Suggested citation: Maja Sahadžić, ‘The Bonn Powers in Bosnia and Herzegovina: Between a rock and a hard place’, ConstitutionNet, International IDEA, 29 November 2022, https://constitutionnet.org/news/bonn-powers-bosnia-and-herzegovina-between-rock-and-hard-place

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