Bosnia’s U.S.-Authored Constitution Has Been a Disaster

On Aug. 29, the European Court of Human Rights (ECHR) delivered a landmark decision against the state of Bosnia and Herzegovina, ruling by a 6-1 majority that the country’s constitution and its dominant ethnic power-sharing system grossly violated basic rights to equal democratic representation. Specifically, the court ruled that Bosnia’s constitution had unfairly limited the right to vote and be elected for large segments of the population through a “combination of territorial and ethnic requirements” that collectively amounted to “discriminatory treatment.”

Bosnia’s constitution is a strange thing. It is not a stand-alone social contract but Annex IV of the U.S.-brokered Dayton Agreement that ended the Bosnian War (1992-1995). As a subsection of an international treaty, the Dayton constitution is in effect an armistice operationalized as a complex power-sharing system between the country’s three largest ethnic groups: the Bosniaks, Serbs, and Croats. As such, the constitution has always been deeply intertwined in the country’s relationship with Washington, and with the international officials who have extraordinary administrative powers in Bosnia to this day.

Following the Bosnian genocide, these “constituent peoples” (as the constitution refers to them) base their (near-)monopoly on political representation on the patchwork of ethnically homogenous enclaves in which most members of the three constituencies now live. As such, to be elected for key positions in Bosnia—such as the state presidency or the parliament’s upper chamber, the House of Peoples—it is not sufficient merely to be a Bosniak, Serb, or Croat. One must also be a Bosniak, Serb, or Croat who lives in a (super)majority Bosniak, Serb, or Croat region of the country. All those outside this arrangement are effectively disenfranchised.

This was not the first time that segments of Bosnia’s constitution have been struck down by the court. The ECHR has ruled similarly in 2009, 2014, 2016, and 2020, but its most recent decision, the Kovacevic ruling, is far and away the most sweeping of the lot.

Previous decisions focused on specific discriminatory aspects of the country’s constitutional order—e.g., the inability of minority groups to stand for the country’s tripartite presidency. Slaven Kovacevic, an advisor to the Croat member of the state presidency, however, argued more broadly that the entire Bosnian constitutional regime was an “ethnocracy” that made rights to participation and representation in the democratic process contingent on both one’s ethnicity and residency.

The court largely accepted the claim and ruled that Bosnia was obliged to amend its constitution so that even if a “system of ethnic representation is maintained in some form, it should be secondary to political representation,” that is, a universal, non-ethnically constituted right to participate in the electoral process.

Never has the ECHR ruled so boldly, in effect striking down a country’s entire constitutional regime. Even more incredibly, the decision represents a direct rebuke to the Biden administration, which as recently as April of this year expended significant diplomatic capital to further cement Bosnia’s sectarian constitutional order—which the U.S. helped author in the first place.

Presently, those who do not belong to or identify with any of the constituent groups—or those who do but do not live in the corresponding ethnic-majority regions—are banned from running for office if they are in the wrong area.  According to a 2019 Human Rights Watch estimate, the result has been that “400,000 Bosnian nationals—or 12 percent of the country’s population—has been barred from running for their country’s presidency or the upper chamber of its national parliament because of their religion, ethnicity, or where they live.”

This is a blatantly unfair situation—and an unsustainable one. But despite past ECHR decisions, very little has been done about it. Bizarrely, at the apex of this entire system sits an international official, High Representative Christian Schmidt, who enjoys expansive fiat powers that allow him to unilaterally amend the country’s laws—and even the constitutions of the entities, the two primary administrative units along which Bosnia is divided. But neither Schmidt nor his predecessor have opted to use their “Bonn powers” to implement any aspect of the ECHR’s rulings, despite nearly a decade and a half having elapsed since the first of the court’s decisions.

Worse, on the night of Oct. 2, 2022, minutes after the polls had closed on Bosnia’s most recent general elections, Schmidt used his Bonn powers to significantly amend the Bosnian Federation entity’s election law and constitution to further deepen the sectarian provisions of the country’s prevailing political system. Schmidt claimed to be de-blockading the entity’s convoluted government formation process. But it soon became apparent that he had only further skewed it in favor of hard-line Croat nationalists following an aggressive, yearslong lobbying campaign by neighboring Croatia to realize said changes. By April 2023, Schmidt was forced to amend his own amendments to the election law, and to suspend the Federation entity’s constitution—including his own original changes—just to seat a government.

Civil rights advocates were outraged. The high representative, with the explicit support of the United States and United Kingdom, was engaging in extraordinary (post)election engineering while simultaneously ignoring the decisions of the continent’s top court, whose rulings took precedence over all Bosnian law, according to Article 2.2 of the country’s own constitution.

Krug 99, the most prominent civil rights organization in Bosnia, summed up the public furor in subtle, damning fashion: “There is a question about the real intention of the Office of the High Representative and the High Representative himself as concerns [Bosnia] as a state of equal citizens.”

American officials do not like this line of argument. They say the onus is on the Bosnians to “compromise” and draft a new constitution. But as the ECHR observed, the existing regime is categorically unfair and illiberal—and those who benefit from it have no incentive to agree to a more open and competitive system. And those who currently perform best in the system are the hard-line Serb and Croat nationalist elements that orchestrated the Bosnian War in the first place. They fear that the adoption of a pluralistic, liberal parliamentary system will result in their losing through the democratic process the expansive sectarian autonomies they won through the crimes against humanity they committed in 1990s. Autonomies that, in turn, have allowed their benefactors in Zagreb and Belgrade to hobble virtually all rational governance processes in the country and turn Bosnia into a veritable “condominium of Serbia and Croatia, which is what the nationalists always [wanted] during the war.”

As a result, Bosnians increasingly feel gaslit by the Biden administration, whose election they welcomed as a historic opportunity for the country’s democratic renewal. Far from delivering on the president’s pledge to treat the defense of democracy as the “defining challenge of our time,” in Bosnia the administration has doubled down on sectarian oligarchy. After the contents of the ECHR decision became public, Kovacevic even accused the former U.S. “elections reform” envoy (and still-serving State Department official) Matthew Palmer of having quipped to him, “You Bosnians and Herzegovinians are, after all, Balkanci [inhabitants of the Balkans]. Democracy is not for you.”

The White House cannot have it both ways. If the defense of democracy is the defining challenge of our time, then the rulings of the ECHR against Bosnia must be implemented. That means that the United States must assist the citizens of Bosnia in reforming the constitution it drafted and helped impose on them in 1995, and which has deprived so many of their basic rights to participation and representation in the democratic process.

If Bosnian officials refuse to engage in the process in good faith, then the U.S. should both expand its current sanctions regime against Bosnian leaders and work with the public prosecutor to pursue criminal charges against those obstructing the process, for which appropriate legal architecture already exists.

If even that does not move the needle, then the U.S. should make clear that it no longer considers any of the relevant Bosnian authorities as legitimate representatives of the Bosnian state or citizens and that the U.S. will encourage the EU to likewise suspend all aid, financial or otherwise, to Sarajevo until the constitutional process is concluded in line with the ECHR’s rulings. Simultaneously, the United States should communicate to Zagreb and Belgrade that their involvement in Bosnia’s constitutional process is neither necessary nor welcome, and that failure to respect the sovereignty of the country’s democratic process will result in a severe downgrading of diplomatic ties.

The Biden administration has made its democratic credentials and commitments to the rule of law its signature domestic and foreign-policy motif. In Bosnia, it has brazenly betrayed both. The ECHR’s Kovacevic ruling is an opportunity to both reset Bosnia’s constitutional reform prospects and America’s involvement in the same.