2022 Bosnia and Herzegovina: Christian Schmidt vs. High Representative (OHR)?

by The International Institute for Middle East and Balkan Studies (IFIMES)(published with the consent of IFIMES ©, all images © Pierre Crom)

Subjectio.org

Bosnia and Herzegovina, July 7, 2017 in Bratunac: (From L to R) former Serbian minister of defence Zoran Djordjevic, Serbian minister of defence Aleksandar Vulin, Serbian ambassador in Bosnia and Herzegovina Stanimir Vukicevic and president of Republika Srpska in Bosnia and Herzegovina Milorad Dodik attend a commemoration ceremony for Bosnian Serb victims of the 1992–1995 Bosnian war. Photo by Pierre Crom ©

Long-overdue policy and actions by EU

For more than a decade the US administration has left Bosnia and Herzegovina in the care of the European Union (EU), which has more than evidently missed the historic opportunity to make important steps forward towards a prosperous BiH. Not just that such steps have not been made but the EU has created in BiH a situation identical to that in Ukraine in the eve of the Russian invasion. The sequence of moves by EU officials towards BiH indicates a high risk of corruption, just as in the case of the possible imposition of the BiH Election Law.

In Bosnia and Herzegovina general elections are to take place on 2 October 2022, at the peak of the economic and social crisis. The Dayton peace agreement itself cannot generate serious changes because its ethnic basis (literally) protects all the political elites, which are headed by warlords who had become eternal politicians. Everything is reduced to ethnicity — Bosniaks, Serbs and Croats, which is combined with strong presence of crime and corruption. In such a formula there is no room for young and progressive people. Realization of the announcements of the imposition of the Election Law in Bosnia and Herzegovina by the OHR would lead to “Lebanonization” of the election law. Instead of Sunni, Shia and Christians in the Lebanese case, in BiH we will have the division to Bosniaks, Serbs and Croats cemented for good. This would mean the end of the dreams about a better future and the termination of the so-called European path of Bosnia and Herzegovina.

Analysts warned that the belated decisions of NATO from the Bucharest summit in 2008, when it did not manage to resolve the situation regarding Ukraine, Moldova, Georgia and North Macedonia, nowadays boomerang on Bosnia and Herzegovina. The postponing of the beginning of membership talks with the EU for North Macedonia and Albania, which had unnecessarily been kept in the waiting mode for three years, have further destabilized the Western Balkans. The situation on the Western Balkans could have been different in many aspects had the two countries begun their talks with the EU three years ago. The support to European integration and membership in EU among Western Balkan population is drastically declining. In example, in Serbia the support to membership of the country in the EU is at the level of 44%. The EU is becoming the source and possible new global hotspot of security problems because of its hypocritical and calculating relation towards the Western Balkans. In the meantime, Russia and China are striving to fill the emerged vacuum.

Bosnia and Herzegovina, Srebrenica: Teenagers visit the Srebrenica-Potocari Memorial Center and Cemetery. Photo by Pierre Crom ©

Christian Schmidt vs. High Representative (OHR)?

Currently, in the House of Peoples of the Federation of BiH 17 draft laws and 11 law proposals are waiting to be approved, while the appointments of the FBiH Government on the basis of the election results from 2018, FBiH President and Vice President, as well as judges of the FBiH Constitutional Court are stopped. No less than 5 judgments [2] of the International Criminal Tribunal for former Yugoslavia stipulate that the Republic of Croatia had participated in the international armed conflict in BiH (aggression) and the joint criminal enterprise [3] (JCE) against BiH. First instance and appeal procedures included 22 ICTY prosecutors, whereas in the first four cases Tuđman’s transcripts were not used. Croatia evidently abuses its membership in the EU and NATO to act against Bosnia and Herzegovina and in the function of the Croat Democratic Union BiH (HDZ BiH) and its leader Dragan Čović, who lost by a landslide to Željko Komšić (DF) at the last elections (2018) for the BiH Presidency.

Analysts believe that it is important to warn the EU officials, as well as officials of other countries and particularly the UK and US, of the grave legacy which the Republic of Croatia has in case of Bosnia and Herzegovina (five judgments of the ICTY for aggression and participation in the joint criminal enterprise), which derogates it from participation in the attempts to find a solution for overcoming the existing crisis in BiH, which has been constantly produced by the Dragan Čović (HDZBiH)-Milorad Dodik (SNSD) duo.

The OHR legal opinion /information [4] from 2016 is related to the request that the then Chair of the House of Representatives of the BiH Parliamentary Assembly and now representative in the Parliament of the Republic of Croatia Božo Ljubić had filed with the BiH Constitutional Court. In the request Ljubić challenged the provisions of the BiH Election Law, primarily those related to election of delegates to the FBiH House of Peoples, but did not challenge the provisions of the FBiH Constitution.

The OHR provided to the BiH Constitutional Court a number of arguments that render Ljubić’s request for modification of the BiH Election Law senseless. The BiH Court did not take into account the stance and opinion of the OHR, which resolutely stipulated that the modifications are within the purview of the FBiH, specifically that the BiH Election Law is aligned with the FBiH Constitution. The Decision of the BiH Constitutional Court contains no reference to the opinion/information of the OHR, other than that it had been provided to the Court. Nowadays, the actions of High Representative Christian Schmidt and the OHR are completely differently from those from the time and mandate of the then High Representative Valentin Inzko. Essentially, Christian Schmidt acts against the High Representative (OHR) from 2016. The BiH Constitutional Court did not accept the then stance of the OHR that the BiH Election Law is aligned with the FBiH Constitution and that the requested modifications were within the purview not of the national but the FBiH parliament, but it instructed the national parliament, BiH Parliamentary Assembly, to implement the respective Decision of the BiH Constitutional Court within six months.

Bosnia and Herzegovina: A red chair where models pose for art students in the Academy of Fine Arts in Sarajevo. Photo by Pierre Crom ©

What is Christian Schmidt (OHR) actually doing?

Although the OSCE has also taken a clear stance that the election law, that is election rules, should not be modified in the election year, High Representative Christian Schmidt is try to please, “through the backdoor”, the leaders of the Republic of Croatia and the HDZ. Analysts believe that Christian Schmidt wants to make some concessions to the pro-Bosnian parties as well and thus calm down the situation, at least for the time being, which is an absolutely wrong assessment. The HDZ and Croatia are working on establishment of a “Croat entity” in BiH and any concession by the OHR would be a step in the direction of dissolution of BiH. The situation is the same as with Milorad Dodik, because any concession to the destructors of BiH implies deterioration of the security situation in BiH. The High Representative must be aware that concessions to Čović and Dodik are concessions to Vladimir Putin and Russia, as well as a major risk of renewal of conflicts in BiH.

The hypocrisy of the EU and specific western countries is actually reflected in the new attempts of imposition of the election law. They have stopped any thought or idea that BiH could join the EU. Although NATO does not wish to extend an invitation to BiH to become a member, individual western countries bilaterally support BiH and promise support, which is something that we can see also in the case of Ukraine.

Will BiH face the same faith as Ukraine? Why are the western states bilaterally arming Ukraine, but in the case of Bosnia and Herzegovina support the policy that “bypasses” all the judgments of the European Court of Human Rights (the most renown one is the Sejdić-Finci [15] judgment from 2009), ICTY/MICT and ICJ, as well as opinions of the Venice Commission, various EU resolutions, the recent resolution adopted by the Bundestag and divides BiH along the ethnic lines thus delivering the best possible argument to Putin to conquer the whole of Ukraine. Currying favor with the destructors of BiH through imposition of the Election Law as well is a prelude to the Ukrainian scenario. Therefore, it is high time for the US and individual EU members to realize that the Republic of Croatia and Hungary are the Russia’s “Trojan horse” in the EU and NATO, whose goal is to cause conflicts in BiH.

Analysts believe that the OHR, Peace Implementation Council (PIC) and the EU should stop the practice of triple policies towards BiH and request from High Representative Christian Schmidt to comply with and follow the earlier established postulates of the international community and OHR pertaining to the Election Law, as well as the policy of his state which is reflected in the recently adopted resolution on BiH in the Bundestag In other words, not to follow the policy of the former German federal chancellor Angela Merkel and the policy of Russian influence based on gas, which is still being supplied to Germany thanks to the former German policy and despite the sanctions imposed against Russia.

Bosnia and Herzegovina: A general view of Mostar where the first local elections were held in twelve years on December 20, 2020. Photo by Pierre Crom ©

The same people gets more rights in some and less rights in other parts of BiH

In general, the announced decision of the OHR on modifications to the BiH Election Law increases the rights of one constituent people (Croats) in one part of the territory of the FBiH, but derogates the rights of the same people living in other parts of the FBiH. Such an option discriminates against Croats in non-Croat cantons, as well as Bosniaks and Serbs in Western Herzegovina. A justified question to be asked is what about the citizens who do not declare themselves as members of a constituent people? The High Representative would definitely thus introduce legalization of the war policies and the HDZ policy. Specifically, the policy according to which the principle of proportionality is to be applied in the areas where the Croats constitute a majority, and the principle of parity in the areas where the Croats are a numerous minority.

Another question to be asked as well is what about Republika Srpska (RS)? How will the rights of the other two constituent peoples be protected there if the ethnic census of 3% is being introduced as a standard in the Federation of BiH? Namely, in the RS the other two peoples (Bosniaks and Croats) and ethnic minorities are absolutely not a relevant political subject and have no significant influence on adoption of decisions, because Republika Srpska has deliberately obstructed implementation of Annex 7 of the Dayton peace agreement. If the return of the refugees and exiled persons would be implemented the entity-based blockades would be reduced to minimum. Will then special quotas be defined in the RS like in the FBiH? In example, will the Prijedor Municipality be given a significant number of seats in the Republika Srpska National Assembly (NSRS), as it is the only municipality with a significant number of returnees? A single constitutional-legal system of BiH cannot include such diametrically opposite solutions that lead to additional discrimination and establishment of an even bigger asymmetry in the constitutional-legal arrangements. It is evident that the judgements of the European Court of Human Rights on the constituent-status of all the peoples on the whole territory of BiH are clearly violated. The peoples and citizens are constituent on the whole territory of BiH, and representation should respect the principle of constituent-status and territorial representation. The intention of territorial representation from all parts of BiH is an impetus to the return process. In its opinion on the Božo Ljubić case, the OHR elaborated why the respective decision of the BiH Constitutional Court is still relevant and why it would be wrong to disrespect it.

Regardless of other aspects, such as removal of blockades in implementation of the election results, the announced decision of the OHR on modifications to the election law deepens ethnic divisions in the country and increases discrimination through further strengthening of the institute of constituent peoples and the so-called legitimate representation. The solutions were not sought through compliance with the achieved European standards in the protection of human rights and very concrete judgements of the European Court of Human Rights in Strasbourg, but were based on rigid calculations to what extent would each of the “three sides” in BiH be satisfied and to what extent would the proposal be to the liking of the HDZ BiH, Dragan Čović and Andrej Plenković. Hence, values-wise, this is a completely wrong approach that introduces new discriminations in an already deeply discriminatory society in Bosnia and Herzegovina. In case of possible imposition of the Election Law with discriminatory provisions, it would be necessary to establish legal teams which would challenge such a decision before the European Court of Human Rights in Strasbourg. Namely, what would happen in example in Germany if two months prior to elections for the German Bundestag the election rules would get changed? In fact, Germany allows bigger representation to its federal provinces with a population of under two million in the upper house (Bundesrat). This is definitely an attempt to incorporate institutionally in the system of Bosnia and Herzegovina the poorest experiences from Ukraine and Lebanon, although as a country BiH aspires to become a full-fledged member of the European Union. What needs to be done is to apply in Bosnia and Herzegovina constitutional and legal solutions, and consequently election legislation, that is in line with the standards and the acquis communautaire of the EU- and nothing more.

[2] ● ICTY, The Prosecutor v. Dario Kordić and Mario Čerkez, IT-95–14/2, par. 108,109,137,142,145 (‘Kordić and Čerkez’) http://www.icty.org/bcs/case/kordic_cerkez/4

● ICTY, The Prosecutor v. Tihomir Blaškić, IT-95–14-T, par. 94, 122,123,744 (‘Blaškić’) http://www.icty.org/bcs/case/blaskic/4

● ICTY, Prosecutor v. Zlatko Aleksovski, IT- 95–14, https://www.icty.org/x/cases/aleksovski/acjug/en/ale-asj000324e.pdf

● ICTY, The Prosecutor v. Mladen Naletilić and Vinko Martinović, IT-98–34, par. 14 ,196,200 (‘Naletilić and Martinović’) http://www.icty.org/bcs/case/naletilic_martinovic/4

● ICTY, The Prosecutor v. Jadranko Prlić et al., IT-04–74, par. 24 ,544,545,549,550,560,568 (‘Prlić et al.’) http://www.icty.org/bcs/case/prlic/4

[3] ● ICTY, The Prosecutor v. Jadranko Prlić et al., IT-04–74, par. 24 ,544,545,549,550,560,568 (‘Prlić et al.’) http://www.icty.org/bcs/case/prlic/4

[4] Source: OHR, Sarajevo 2016, „Information submitted by the OHR concerning the request of the applicant in Case No. U 23/14“, link: http://www.ohr.int/information-submitted-by-the-ohr-concerning-the-request-of-the-applicant-in-case-no-u-2314/

[15] Source: ECHR, Case of Sejdić and Finci v. Bosnia and Herzegovina, (Applications nos. 27996/06 and 34836/06), link: https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-96491%22]}

“2022 Bosnia and Herzegovina: Christian Schmidt vs. High Representative (OHR)?” is re-published on Subjectio’s Medium account with the permission of IFIMES.

The activities of International institute IFIMES are especially directed towards the areas of international (foreign) politics and economy, international relations, counseling the governments, state institutions as well as the non-state actors such as the academia and corporate entities. IFIMES is specialized in dealing with the complex situations in the Balkans as well as in the Middle East and North Africa (MENA). IFIMES gathers and selects various information and sources on key conflict areas in the world. The Institute analyses mutual relations among parties with an aim to promote the importance of reconciliation, early prevention/preventive diplomacy and disarmament/ confidence building measures in the regional or global conflict resolution of the existing conflicts and the role of preventive actions against new global disputes. IFIMES has special consultative status with the Economic and Social Council ECOSOC/UN since 2018. IFIMES is also the publisher of the international scientific journal European Perspectives.

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