A pre-election standoff between Bosniaks and Croats in Bosnia and Herzegovina has taken an ugly turn, with rhetoric from the 1990s war reappearing. Ideally, politicians would make the reforms needed to settle the quarrel but, if not, the internationally appointed high representative should do so.
What’s new? Ahead of Bosnia’s elections, two of its main communities, Bosniaks and Croats, are caught in a bitter dispute over procedures for the vote. Christian Schmidt, a German politician who serves as Bosnia’s international governor, or high representative, has threatened sweeping changes in election and other laws to resolve the crisis.
Why did it happen? Having long been wary of the high representative using his office’s powers to overrule Bosnian leaders, several Western countries, including the U.S., now support such an intervention. Amid the uncertainty created by Russia’s war in Ukraine, they fear that a disputed election could trigger a major crisis in Bosnia.
Why does it matter? The changes touch on long-disputed issues and affect the power balance between Bosniaks and Croats in one of Bosnia’s two entities, the Federation of Bosnia and Herzegovina. Antagonism between Bosniaks and Croats could erode the country’s ability to survive a separatist challenge by Serbs, the country’s other main community.
What should be done? Rather than pushing ahead immediately, Schmidt could see if by threatening action he can nudge Bosnian politicians to avert a bust-up around the vote. If not, he should impose the changes necessary to avoid a crisis. External actors should make a post-election effort push toward farther-reaching reform.
I. Overview
Bosnia and Herzegovina’s high representative – the international official overseeing implementation of the 1995 Dayton peace accords – has vowed to impose changes to the country’s election law if local leaders fail to make the alterations themselves. The reforms affect the balance of power between predominantly Bosniak and Croat parties in the Federation of Bosnia and Herzegovina, the larger of the two entities into which Bosnia is split. They aim to resolve a lengthy standoff that has taken a nasty turn, with politicians threatening a return to armed conflict. The dispute must be settled for the country to fend off a secessionist threat by the Serb-majority Republika Srpska, the second of Bosnia’s two entities. The high representative should test if, by threatening to impose his reforms, he can push Bosnian leaders to adopt the changes themselves or approach the vote in a way that makes them unnecessary. If not, he should impose the measures needed for a credible election that would give Bosnians a chance to form a government afterward. Either way, the vote should set the stage for talks on deeper reform.
The high representative, Germany’s Christian Schmidt, has proposed several reforms. One set would change how officials who represent the three “constituent peoples” – Bosniaks, Croats and Serbs – are elected in the Federation. It deals with indirect elections that take place about a month after the 2 October general election and see local bodies, or cantonal assemblies, select deputies for the upper house of the Federation’s legislature. Broadly speaking, it would make it harder for Bosniaks, who enjoy a big majority in the Federation, to choose the deputies who should represent Croats and Serbs, and thus make it easier for the latter two groups to affect policymaking. That reform is broadly in tune with a recent Bosnian constitutional court decision and welcomed by Croats but opposed by Bosniaks. A second set of changes – seemingly partly designed to give Bosniaks something in return – would remove some instruments Croats have abused to block government formation and functioning. Combined, the reforms are balanced but sweeping, with unpredictable long-term effects.
” Nationalist rhetoric evoking memories of the Bosnian war of 1992-1995 dominates the election campaign. “
That the high representative is poised to weigh in on Bosnia’s legal architecture reflects the gravity of the crisis. While the election dispute itself is confined to one of Bosnia’s entities, the Federation, the questions at its core involve issues deeply rooted in Bosnian political culture and jurisprudence that have defeated past attempts at compromise. Nationalist rhetoric evoking memories of the Bosnian war of 1992-1995 dominates the election campaign. Croat politicians, who say the status quo dilutes their say as an ethnic bloc, warn the vote will be illegitimate if the high representative fails to act. Bosniak leaders, for their part, fear that Schmidt’s measure would weaken their hand and speak of preparing for renewed fighting if he follows through with it. Bosniak public opinion is aggrieved by a sense that Croats and Serbs are conspiring to make the country ungovernable. The bad blood between Bosniaks and Croats undercuts the united front they should present against Republika Srpska leaders, who over recent years have increasingly threatened to break away.
The foreign support that Schmidt enjoys also shows starkly how far the country has regressed. As late as the autumn of 2021, the outside powers who sit on the Office of the High Representative’s Steering Board generally opposed Schmidt using the extraordinary “Bonn powers” that allow him to impose laws and appoint or dismiss officials. Indeed, Schmidt’s 2021 appointment over loud opposition from UN Security Council members Russia and China cast doubt on those powers’ legality. The exercise of governing powers by an unelected foreigner was justifiable by the legacy of Bosnia’s war but that justification has faded as the conflict recedes into the past. Yet the secessionist sentiment in Republika Srpska, combined with Russia’s invasion of Ukraine, has upended those calculations. Schmidt now enjoys the backing of the U.S. and several European states, which reason that he needs to use his prerogatives to prevent an escalating crisis.
While local leadership has clearly failed and the high representative’s proposal is a final recourse, such foreign intrusion should be avoided unless absolutely required. A better outcome would be for Bosnian politicians to make use of Schmidt’s delay to work out a compromise themselves. The high representative should see whether he can use his threat of reforms to that end, privately warning Croat and Bosniak leaders that, if they do not change course, he will use the Bonn powers to stop them from taking advantage of the system. Bosniak parties would have to give up their attempts to poach crucial Croat seats, while Croats cease obstructing the Federation government’s functioning. Schmidt’s supporters, notably the U.S., should signal strong and unambiguous support for his gambit. If either side fails to act, Schmidt should push through the component of the reforms that addresses that behaviour. Ideally, though, both will back down and the vote pave the way for talks on wider constitutional reforms, essential for avoiding repeated crises in the years ahead, that would supplement or supersede Schmidt’s proposals.
II. Backdrop to the Election Dispute
The electoral dispute between Bosniaks and Croats occurs against the backdrop of not only three decades of post-conflict dysfunction and gridlock, but also growing secessionist sentiment among Bosnian Serbs and months of increasing activism by the Office of the High Representative.
The 1995 Dayton peace accord imposed an unwieldy constitution that structured Bosnia and Herzegovina (hereafter, Bosnia) around two autonomous entities – a larger Federation of Bosnia and Herzegovina (hereafter, the Federation) and the smaller Republika Srpska (RS) – and three constituent peoples (Bosniaks, Croats and Serbs). Dayton created a weak central state, giving the entities and the peoples extensive powers.[1] It was to be governed from the national capital, Sarajevo, by a bicameral parliament and a three-person collective presidency comprising one Bosniak, one Croat and one Serb member. The national government had limited powers while the entities were responsible for justice, most policing, taxation, education, health care, defence and security.
Such a minimal state was probably too weak to survive for long. It was impossible for a leadership drawn from wartime factions to agree on much. In response, in 1997, at a meeting held in Bonn, Germany, the Peace Implementation Council, a group of 55 states and agencies helping manage the peace process, endowed the high representative, the official responsible for seeing through the Dayton accord’s civil aspects, with broad governing authority (known as the Bonn powers).[2] Over the next several years, successive high representatives used these powers with increasing effect and transformed the country. Much of the time, they catalysed Bosnian leaders to act on their own. On some occasions, however, high representatives acted themselves – to remove and appoint leaders, to amend both entities’ constitutions and to enact important laws, including one creating a state court. Bosnia’s Constitutional Court reinforced these changes.
[1] One of these is the entity veto. Two thirds of either entity’s representatives can scuttle any legislation without recourse. Another is the vital national interest veto. A majority of any constituent people’s representatives can block a law, though the Constitutional Court can override the veto.
[2] “Bosnia and Herzegovina 1998: Self-sustaining Structures”, communiqué, Peace Implementation Council, 10 December 1997.
” Not surprisingly, [the] degree of foreign intrusion [into the peace process] proved divisive. “
Not surprisingly, this degree of foreign intrusion proved divisive. In general, Sarajevo welcomed it and wanted it to continue, but Croats and Serbs tended to be at best ambivalent, at worst angry and hostile. Moreover, the vesting of so much power in an unelected outsider became increasingly controversial over time, and not just inside Bosnia.[1] RS officials showed they were willing to go to the brink to resist laws emplaced by the high representative, who ceased using his powers from mid-2011 until July 2021. The Peace Implementation Committee’s Steering Board, the body that appoints and advises the high representative, supported his decision to refrain.[2]
This hiatus ended in July 2021, when outgoing High Representative Valentin Inzko imposed a law setting criminal penalties for, among other things, denying genocide established by Bosnian or international courts. This law was mainly about the 1995 Srebrenica massacre of 8,000 Muslim men and boys by Bosnian Serb forces, which the International Criminal Tribunal for the former Yugoslavia in The Hague repeatedly characterised as genocide. Many Serbs acknowledge that Srebrenica was a tremendous crime but not that it amounted to genocide. A vocal minority celebrates the killings and their perpetrators. Serbs reacted furiously to Inzko’s law, with the main Serb-majority parties denouncing it and boycotting Bosnian state institutions. Their actions were the start of a fresh campaign to redefine, or possibly secede from, Bosnia and its political system.
While the Serbs were launching what looks like a slow-motion breakaway attempt, a simmering dispute between Bosniaks and Croats over elections in the Federation began to boil over. This dispute has poisoned relations between the two groups and damaged governance at the entity and national levels. Unless resolved, it looks set to overshadow the October vote. It also undercuts hopes that the Croats and Bosniaks might present a united front against Serb separatism. Indeed, it has had exactly the inverse effect, drawing Croat and RS leaders together in mutual opposition to Sarajevo. Over the past several years, they have cooperated in blocking legislation and in pushing one another’s agendas, though Croats stop short of supporting actual Serb secession.
While the RS’s moves toward secession slowed to a near-halt after Russia invaded Ukraine on 24 February, as Banja Luka watched its main backer punished by unexpectedly harsh and swift sanctions, independence remains the Serb leaders’ long-term goal.[3] The lull could well end at some point soon. Most of Bosnia’s foreign partners want to see this irritant in Bosniak-Croat relations removed by then.
[1] In 2005, the Council of Europe’s Venice Commission issued a damning report saying the high representative’s powers were “fundamentally incompatible with the democratic character of the state and the sovereignty of [Bosnia and Herzegovina]” and warning of “a strong risk of perverse effects: local politicians have no incentive to accept painful but necessary political compromises since they know that, if no agreement is reached, in the end the High Representative can impose the legislation”.
[2] The Steering Board is composed of Canada, France, Germany, Italy, Japan, the U.S., the UK and the EU, with Türkiye representing the Organisation of the Islamic Conference. Russia is technically also a member but since July 2021 no longer participates in the meetings.
[3] Crisis Group interviews, international officials, Sarajevo, June 2022. See also Crisis Group Europe Report N°265, Managing the Risks of Instability in the Western Balkans, 7 July 2022.
III. The Dispute Itself
At a political level, the Bosniak-Croat electoral dispute is fundamentally about who gets to control the Federation and the linked question of who determines the nation’s leadership. Unlike Bosniaks and Serbs, Croats form the majority in neither the Federation nor RS, making it more difficult for them to protect their interests at both the entity and national levels. They are at a disadvantage vis-à-vis the other two constituent peoples and feel a sense of grievance. Bosnian Croats, led by the Croatian Democratic Union (HDZ), seek to address the imbalance through changes to electoral rules that would give them a greater say in Federation governance, but they have been unable to reach agreement with the entity’s Bosniak-led parties.
For both Bosniaks and Croats, control of the Federation’s government institutions represents high stakes. The country is highly decentralised, and the Bosnian national government has a modest budget. The Federation, Bosnia’s better-off half, has a budget over four times larger and oversees thousands of sought-after jobs in public companies, health care, education and other fields.[1] Bosniak and Bosnian Croat parties alike see control of a portion of its government as the most important political prize.[2] Much as in the rest of Bosnia (and indeed much of the Balkans), Federation elections tend to see politicians appeal to voters’ fears that their patrons will lose to another group’s leaders, who will dole out jobs and contracts to their own clients. Bosnian politicians from all sides agree that most parties practise clientelism and skirt the law to benefit favoured groups, making this anxiety not unreasonable.[3]
[1] The 2022 Bosnia and Herzegovina budget is 1.07 billion Bosnia-Herzegovina convertible marks (BAM), or roughly $548 million; the 2020 Federation budget (the most recent available) was 4.95 billion BAM, or roughly $2.5 billion.
[2] Crisis Group telephone interview, senior international official, 15 August 2022.
[3] Crisis Group interviews, current and former Bosnian and international officials, Sarajevo and Banja Luka, June-July 2022.
” Polls are particularly fraught because control of the Federation hinges on one or two swing seats in the entity’s upper legislative chamber. “
Federation polls are particularly fraught because control of the Federation hinges on one or two swing seats in the entity’s upper legislative chamber, the House of Peoples. House members group along not only party but also ethnic lines, with each of the three officially recognised “constituent peoples” having its own seventeen-member bloc, or caucus. Two thirds of an ethnic caucus – so, twelve members – can block important decisions, including those related to government formation. The key seats are in the House’s Croat caucus, because Bosniak-majority parties have had some success enlisting Croat politicians to affiliate with them and getting them elected to that caucus. If Bosniak-majority parties can field Croat candidates and win six or more of the seventeen seats in the House of Peoples’ Croat caucus, Bosniaks will be able to do legislative business without the input of Croat-majority parties like the HDZ. They will also be able to shut these parties out of top government positions at both the entity and national levels.
That Bosniak parties can get “their” Croat candidates into the House of Peoples owes to the chamber’s indirect election system. Members are chosen by the Federation’s ten cantonal assemblies. The seventeen members of each constituent people’s House caucus are divvied up among the ten cantons. The Federation’s constitution stipulates that each canton gets to elect at least one member of each constituent people’s caucus, no matter how few of that people live in that canton (so even cantons with few Croats, for example, send a Croat to the House of Peoples). This provision slants seat distribution toward “smaller” cantons (those with fewer of a given people’s voters), and it also allows Bosniaks to capture Croat seats. Take Bosnia-Podrinje canton. Only two dozen Croats (of a population of almost 24,000) live there. Parties backed mostly by the Bosniak majority thus always choose that canton’s Croat delegate. Federation-wide, Bosniak-majority parties expect four or five seats along these lines in the Croat caucus, meaning one or two more would give them a blocking coalition. Competition for those extra swing seats is fierce.
General elections are held every four years, and 2022 is the second time that parties are disputing the rules governing the contest for House of Peoples seats. In 2016, the Bosnian Constitutional Court struck down the part of the election law that guaranteed at least one seat per canton to each constituent people but – because of the high stakes – the parties disagree about how to implement the ruling.[1] Bosniak parties see it as an HDZ win, which in effect it is, and are reluctant to move ahead with it. Talks mediated by the U.S. and EU in the spring came close to securing agreement not to proceed. A compromise proposal won HDZ approval in late March but a Bosniak party (the Party for Democratic Action) held out, demanding reductions in the House’s competences in return, so as to weaken the HDZ and shift the centre of gravity to the lower chamber, where Bosniaks hold a large majority.[2] The HDZ rejected that further concession and walked out.[3] Rivalry for the Bosniak vote may be to blame, given the wariness among Bosniak leaders of appearing to compromise in the heat of a campaign.[4]
Against this backdrop, it seemed likely that the October elections would go ahead under a cloud of rancour, with aggrieved Croats poised to obstruct governance in the aftermath.[5] The HDZ hinted darkly if vaguely that “the future of [Bosnia] would be in question”.[6] The party’s options include refusing, in cantons it does control, to elect delegates to the House of Peoples, with the possible effect of denying that body a quorum and preventing it from meeting.[7] The long-term effects of such a strategy are unclear, and the gambit may end up in court.
Certainly, there was reason to believe – as Bosnian and international observers worried – that the HDZ might throw a wrench into Bosnia’s institutional machinery depending on how the polls played out.[8] The party tends to block whatever it can, holding governance hostage.[9] The HDZ won the key Croat swing seats in the 2014 and 2018 elections and parlayed its victory into control of four important ministries – finance, justice, health and education – at national and Federation levels plus in several cantons.[10] By refusing to agree to a new government since 2018, the HDZ has kept its people in these ministries as caretakers. The HDZ also benefits from a network of cadres that lets its leader “run things from his villa in Mostar”, in the words of a veteran legislator, meaning that he can ensure that party members in government and civil service carry out his directives, even if the government itself is paralysed.[11] A Bosniak member of parliament pointed out that the HDZ had joined the leading Serb party in voting against election reforms sought by the EU and since imposed by the Office of the High Representative.[12]
Many Bosniaks chafe at having to share power with the HDZ, a party they view as little more than a “joint criminal enterprise” because of its wartime history and some its leaders’ alleged corruption.[13] The idea of changing election rules just as their representatives are poised to gain a decisive upper hand is less than appealing. This sense of grievance is aggravated by Bosniaks being largely shut out of politics in RS, which is not subject to the same power-sharing arrangements as the Federation. That in turn is a reminder of wartime ethnic cleansing, because RS was once home to hundreds of thousands of Bosniaks who were brutally expelled and mostly have not returned. A leading Bosniak parliamentarian said her people cannot accept being relegated to “a quarter of the country” – by which she meant half of one of Bosnia’s two entities (the Federation).[14]