A well-known saying from the 1990s in the title of this text points to perhaps the biggest problem of Bosnia and Herzegovina (BiH). This problem is the difference between the legally proclaimed constituent status of the three peoples on the entire territory of BiH and its practical application. The constituent rights of the three peoples are not universally upheld in practice, as shown by recent political events in the country whose instability is, unfortunately, increasingly mentioned in the context of the War in Ukraine and its potential geopolitical consequences in the Balkans.
On March, 20 this year, the last in a series of multi-year negotiations on amending the BiH’s election law failed. The primary goal of negotiations was the implementation of the BiH Constitutional Court ruling in the Ljubić case, while the secondary goal was the implementation of five judgments of the European Court of Human Rights (ECHR). The consequences of the failure of the negotiations can be inferred from the statements of Croat officials in BiH, who clearly said that there are no prerequisites in place for holding general elections in October of this year. Given that Croat representatives can block the adoption of the budget at both the state (BiH) and entity (the Federation of Bosnia and Herzegovina -FBiH) level and therefore prevent the financing of elections, these statements are not empty threats. Instead, they provide a glimpse into the potential future in which of the survival of (F)BiH in its present form is brought into question. At the center of the issue of electoral reform and non-implementation of BiH Constitutional Court and ECHR rulings is the operationalization of the principle of constituent peoples and the lack of legitimate representation of the three nations and the “Others” (3.7% of BiH’s population, including national minorities such as Albanians, Roma and Jews, as well as other citizens who do not identify as members of one of the three constituent nations) in political institutions at all levels in BiH.
BiH has a long history of representation of the three nations in political institutions, dating from the time of the Ottoman and Austro-Hungarian rule, through the times of socialist Yugoslavia, up to the present day. Since BiH is not a nation-state, like Slovenia or Croatia, but it is a multinational state of three nations, the Dayton Constitution defines all three nations as constituent peoples. According to the original Dayton Agreement, the constituent status of the three nations was operationalized through parity and the veto in state institutions (the Presidency, the Council of Ministers, the House of Peoples) and through territorial autonomy within the two entities. Serbs were the only constituent people in the Republika Srpska (RS), which originally had the political structure of a typical civic nation-state, while Bosniaks and Croats were the only constituent peoples in the FBiH. Within the FBiH, Bosniaks and Croats had parity and veto power in entity institutions (the President, the Government, the House of Peoples) similar to state-level parity. The FBiH itself was divided into ten cantons, ensuring a high degree of autonomy for Croats who were three times less numerous than Bosniaks. In five cantons, Bosniaks were the only constituent people, in three cantons Croats were the only constituent people, and in two cantons, where the Bosniak-Croat war between 1992 and 1994 was the fiercest, both peoples were constituent and shared power, in a similar way as in the FBiH itself.
With expected difficulties for a multinational post-conflict state which went through a bloody war that took about 100,000 lives and in which nations do not want to live together and share power with former war enemies, this system of operationalizing the constituent status of the three nations agreed in Dayton worked until 2000. Responding to the appeal of Alija Izetbegović, in July 2000 the Constitutional Court of BiH issued a decision (U-5/98-III) according to which the constituency of the three peoples on the entire territory of BiH is the overarching principle of BiH’s Constitution. It should be noted that the decision was opposed by two Croat and two Serb judges, while two Bosniak and three international judges in the Constitutional Court voted in favor of the ruling. In practice, this decision meant that the constitutions of the entities and cantons had to be changed so that all three nations became constituent in all of them. That constituent status would then be enjoyed through parity, power-sharing in government and through the institution of veto for political representatives of three nations at all levels of government in BiH. If all three nations are de iure constituent everywhere in BiH, but the less numerous nations do not have an opportunity to elect their legitimate political representatives by themselves, then only those who are a relative majority in a specific canton or an entity, such as Croats in Posavina Canton or Serbs in RS or Bosniaks in the FBiH, are constituent in practice.
Following the failure of domestic political representatives to implement the Constitutional Court’s ruling in 2000, High Representative Wolfgang Petritsch imposed a series of amendments to the FBiH and RS constitutions in 2002. These amendments made all three nations constituent in both entities, but that never came to effect in practice because the election law did not ensure that political representatives of the three nations were legitimately elected by the voters they represent without the interference of the other two nations. If the three nations are truly constituent throughout BiH and can freely elect their political representatives, then Bosniak and Croat representatives would be able to block any decision of the RS National Assembly (NSRS), while Serb representatives in the FBiH could veto all political decisions. However, this is not the case. Today, in practice, the RS remains dominated by the Serbs, while through the amendments to the election law and FBiH’s constitution, the original power-sharing was largely lost and Bosniaks became politically dominant in this entity.
There are many examples of political engineering in BiH at all levels of government, from local, through cantonal, to entity and state. Political engineering includes misrepresentation of candidates and imposition of members of a certain nation as political representatives of that nation by voters of another nation through electoral loopholes. The concept of constituent peoples has become a legal fiction, and the only thing that ensures legitimate representation is being relative majority at the cantonal or entity level. For example, ethnic Bosniaks often run as Croats, Serbs, or Others in the FBiH, filling positions reserved for members of the other two constituent nations and for members of national minorities. Anel Šahinović and Edim Fejzić declared themselves as ethnic Croats in the cantonal elections in USK (Bihać) and BPK (Goražde) in 2018 and were thus elected to the Croat club of the House of Peoples of the FBiH from these cantons. To add to the absurdity, according to the census, only 24 Croats live in the BPK out of a total of 23,734 inhabitants (94% are Bosniak). Even if all Croats vote for one candidate in the elections, he cannot exceed the electoral threshold of 3%. The situation is similar in the USK, where Croats make up only 1.9% of the population.
The situation is also similar when it comes to Serbs and Serb parties in the FBiH. Serb parties can only cross the electoral threshold in K10 (Livno) due to the very small number of Serbs who remain in the FBiH (2.5% of the total population). How can we claim that the Serbs are constituent in the FBiH if they cannot elect their own representatives? We similarly cannot claim that Croats are truly constituent in RS, as due to their small share in the population (2.4%) Croats regularly have “representatives” in the NSRS Council of Peoples coming from Serb political parties, elected by the Serb voters, while the representatives themselves are sometimes ethnic Serbs. Moreover, in the last twenty years, only one Roma and one Jew have been elected to the Others Club in the FBiH House of Peoples, while no other member of traditional national minorities has been elected. This is due to ethnic Bosniaks declaring themselves as Others for political reason and filling the seats reserved for representation of national minorities. Everyone is discriminated against at all levels, from national minorities to constituent nations, except the absolute majority of a certain canton or entity, such as Croats in four cantons, Bosniaks in six cantons and the FBiH, and Serbs in the RS.
However, the biggest problem is not the false representation of candidates, but token representatives who are members of one constituent nation (a relative minority), but are elected by members of another constituent nation (a relative majority). In RS, Serb parties often have “their” Bosniaks, Croats and Others who fill positions reserved for the representatives of these peoples, while in FBiH Bosniak parties regularly fill almost the entire Serb club, the entire Others club and a significant part of the Croat club (theoretically, they can fill more than half of it) in the House of Peoples. Even the least numerous constituent nation, the Croats, whose political platform is based on legitimate representation, sometimes elect Serb representatives in Mostar and the HNK (Mostar). The most famous example of a tokenistic representative is Željko Komšić, who was elected three times by majority of Bosniak voters as the Croat representative in the Presidency of BiH. Zlatko Miletić, a member of Komšić’s DF, is currently a Croat “representative” in BiH’s House of Peoples, although he was elected by the representatives of the Bosniak parties elected to the Croat club in FBiH’s House of Peoples. There are similar examples where a member of a relative minority nation is imposed as that’s nation’s representative by the voters and political parties of a relative majority nation at that level.
This problem of legitimate representation is at the core of the 2016 ruling of the BiH Constitutional Court in the Ljubić case, which states that “the right to participate in democratic decisionmaking is exercised through legitimate political representation, which has to be based on the democratic choice by those represented and whose interests are represented. In this regard, the connection between those who are represented and their political representatives at all administrative-political levels is actually the one that gives the legitimacy to community representatives.” In other words, Croats (as well as Bosniaks and Serbs) must be able to independently elect all their political representatives at all administrative levels without the interference of the other two constituent nations in order for those representatives to be legitimately elected. Constituent status of three nations has been so far erroneously operationalized in such a way that the (often opportunistic) self-identification of candidate’s ethnic identification, that is, his affiliation with a constituent nation or the Others, takes precedence over his legitimacy stemming from voters electing him to a position reserved for representing a particular constituent nation. Five ECHR judgments have been handed down precisely because of this practice, as national minorities such as Jews and Roma are not allowed to be elected to the Presidency and BiH’s House of Peoples. If the primacy was on the electoral legitimacy, and not on the ethnic self-identification of candidates, as the Constitutional Court stated that it should be, then nothing would have prevented Finci and Sejdić from becoming Bosniak or Croat representatives in the Presidency of BiH. Moreover, even ethnic Croats could become Bosniak or Serb representatives, and ethnic Bosniaks could become Croat or Serb representatives, because legitimacy would not come from ethnic self-identification of the candidate, but from the voters who elect him to a particular position.
Given the political culture in BiH and the current legal framework, it is impossible in practice to achieve full equality of the three constituent nations on the entire territory of BiH as required by the constitution. However, even if it was possible to do so with some electoral model, such a system would develop further political frustrations as, for example, 2.5% of the population (Serbs) of FBiH, or 2.4% of the population (Croats) of RS, or 0.8% of the ZHK population (Bosniaks) would be able to block all political decisions. That would be neither good nor legitimate. A much better system than operationalizing the constituent status of the three nations through ethnic quotas is territorial federalism inspired by EU federal members like Belgium. Through federal regions where one of the three nations is the absolute majority, discrimination at the state level can be resolved, as political representatives in state institutions would represent regions rather than nations, so their personal ethnic identity would play no role. At the same time, ethnic identity of the representatives within those federal regions would not matter, as the regions would not have any ethnic quotas or vetoes. Such a system would bring equality to the three nations, end the institutional discrimination of the Others, as well as reduce the current cumbersome administration by about 75%. Such a system, like any political system in practice, would not be perfect. However, it would at least enable BiH to close the chapter of political frustrations and electoral manipulations that has lasted for more than twenty years, and focus on real demographic and economic challenges that threaten the very future of the country.
