Christian Schmidt, the international High Representative in Bosnia and Herzegovina, who is tasked with enforcing the 1995 Dayton Peace Agreement, has, on his own initiative, submitted his assessment in an ongoing appeals case before the European Court of Human Rights. It remains unclear whether he will travel to Strasbourg for the Nov. 20 hearing in the Court’s Grand Chamber, to testify or otherwise be present, as the Court considers an appeal of its voting rights ruling last year in Kovačević v. Bosnia and Herzegovina (BiH). But a published copy of Schmidt’s ”written observations” is consistent with his prior statements. He argues that confirmation of the ruling will be divisive, impede efforts to bring the country’s constitutional order into conformity with prior rulings, and threaten the “precarious and fragile situation” in Bosnia. Yet overturning the ruling would, to the contrary, only secure the grip of ethnonationalists and other political parties and leaders responsible for ensuring those “precarious and fragile” conditions persist. It would stifle potential for the country’s democratic evolution.
In its August 2023 Kovačević judgment, the Court ruled 6-1 that the country’s Constitution, which was an annex to the Dayton Peace Agreement that ended the 1992-1995 war that killed more than 100,000 people, was noncompliant with the country’s commitments under the European Convention on Human Rights. Among other findings, the Court determined that some of Bosnia’s voters are impeded from casting ballots for the candidate of their choice in both the state legislative chambers and the national three-person presidency due to the constitution’s prescription that these candidates must be of specific ethnic identifications from particular parts of the country, violating a protocol against discrimination to which the country is a signatory. The Court did not describe a specific structure that would be compliant with its ruling.
The case was the sixth — and most expansive — in a series of rulings dating back to 2009 that mandated amendment of the Bosnian Constitution to enable equality of citizenship rights throughout the country, including the franchise. But the Kovačević case was the only one that argued from the perspective of a voter, as opposed to citizens who wished to stand as candidates. The collective case law effectively requires the revisiting of the Dayton postwar constitutional order. For exactly that reason, the ruling ethnonationalist elites in BiH have successfully blocked the implementation of those rulings. The Kovačević verdict has been appealed by the ruling coalition in BiH (via State representation at the Court) to strike it down.
Trade-Offs to End the Fighting
To recap a bit of the historical backdrop, the U.S.-brokered Dayton Peace Agreement was forcefully assembled over several weeks among the Bosnian belligerents, with two of the three sides backed by the country’s predatory neighbors Serbia and Croatia. The fact that the Constitution was only Annex 4 illustrates that the internal governing structure of the postwar State was not the brokers’ priority. Rather, the priority was to end the fighting and create a “permissive environment” that would enable NATO to keep the peace by sending in a 54,000-strong Implementation Force, as U.S. chief negotiator Richard Holbrooke titled his account of the negotiations at Dayton in his book “To End a War.”
But the structure of the Constitution surely was the priority of the country’s belligerent parties, which also were ethnic political parties. While the Constitution’s preamble invoked the European Convention on Human Rights, the structure of governance reflected the intent of these ethnic nationalist parties to maintain power via the vehicle of “constituent peoples,” specifically in their minds Bosniaks (Bosnian Muslims), Croats, and Serbs. Furthermore, these nationalist leaders expected that “their” people would vote mainly within their ethnic identification and they have used wartime trauma and divisive rhetoric to maintain those divisions.
These societal fissures were – and remain – essential to the business model of these leaders and their associates, which often ignore or collaborate with each other directly or indirectly on wartime theft, organized crime, and coercive power. While their wartime agendas were obviously divergent and did not evaporate after the armed conflict ended, they had a common interest in avoiding accountability for their violence during the war and for their abuses of the public trust in the aftermath.
But while the Dayton Constitution locked in the power of nationalist political parties (and erstwhile belligerents), they were constrained by an increasingly assertive international peace implementation and State-building effort over the course of the decade following the war, with its apogee reached with the unification of hitherto belligerent armies in 2005. That was inconceivable at the signing of Dayton. (Disclosure: I was a strategy advisor at the Office of the then-High Representative Paddy Ashdown in 2005-6, and advised him prior to his taking office in May 2002).
These achievements were simultaneous with the European Union’s “big bang” enlargement in 2004, which absorbed most of Central and Eastern Europe. A de facto international consensus had taken hold that 1) these accomplishments were irreversible and 2) that the prospect of EU (and NATO) membership would incentivize Bosnia’s political elites to complete the task of deepening democracy and rule of law — including amending the Annex 4 Constitution.
Declaring Progress, Despite the Fact
Eighteen years hence, both of those presumptions have been definitively disproven. Yet to date, they have not been revised. Instead, from the initialing of Bosnia’s Stabilization and Association Agreement with the EU in 2007 and its signature the following year, then its entry into force seven years later, the EU has repeatedly declared progress or simply decreed it – such as the granting of EU candidacy in 2022 despite Bosnia’s lack of delivery on the basic conditions spelled out by the European Commission – in the hope that this would prime the pump.
The latest attempt is to incentivize political leaders to perform through the EU’s regional Growth Plan. There is no reason to expect that this effort will have any different effect. Preserving and maximizing power in a structurally oligarchical system is a much more pressing priority for Bosnia’s hardline political leaders than the funds on offer. In actuality, the Dayton system, left unchecked by externally enforced limits, defaults toward functional feudalism in which political parties and the ethnic communities they claim to represent maintain (or seek to control) areas under their absolute dominion. These party leaders expect, based on past practice, to be graded on the curve and get these resources anyway, which they will use to maintain their patronage networks. The function of politics already displays Dayton’s default settings – and allows effectively unlimited latitude to party leaders.
Now, Schmidt is wading into the fray. His submission makes a procedural legal point regarding whether the plaintiff had exhausted legal remedies in Bosnia; the initial ruling accepted Kovačević’s assertion that given past interpretations by the Central Election Commission and the Constitutional Court, he would have had his case dismissed. But the basis of Schmidt’s argument is inherently political and contextual: that reaffirmation of the original ruling would threaten the country’s power-sharing balance – with the usage of the term “fragile” implying that collapse, which would be violent, is a potential result. That is, that human rights are dependent on local context – a bizarre assertion, given the very point of the European Convention, which is to guarantee such rights.
His move seems to signal a new phase — not merely faking progress while allowing further regression, but arguing for establishing a defined ceiling on progress: the will and digestive capacity of the entrenched political beneficiaries. Such a rationale effectively embraces the idea that Bosnia’s power-sharing system is “a shared vision of catastrophe,” as Brendan O’Leary put it, which cannot be revised for fear of recommencing violence. In essence, Schmidt’s argument directly contradicts that of the late Paddy Ashdown, who argued when he held the office that Dayton was “a floor, not a ceiling.” It’s important to note that this was not an outlier view at the time.
A Retreat from Long-Held International Positions
In Schmidt’s “written observations” to the European Court during the current appeal, he asserts that he is not against changing the Dayton Constitution as per prior rulings, but rather that he is arguing for “incremental change” built on “internal compromise.” But his line of argument signifies a retreat from long-held international positions, in favor of those who rule in Bosnia (and by implication, the neighborhood, as hardline leaders in Serbia and Croatia continue to support them). The inability of these intransigents to agree on how to implement the Court’s first such decision in 2009 in Sejdić and Finci v. Bosnia and Herzegovina stemmed from efforts to interpret and implement the ruling being hijacked by the Croat nationalist HDZ political party and its splinter party the HDZ 1990 to pursue a Croat nationalist agenda rather than satisfy the plaintiffs of the case. Schmidt’s logic also challenges the basis of numerous rulings by Bosnia and Herzegovina’s Constitutional Court, a slew of which remain unheeded.
The submission also constitutes a retreat of the Office of the High Representative from its considerable achievements and important mandate. The accusation of critics of the mere existence of that office that it made Bosnia a “protectorate” never properly fit – the international community has not governed or administered the country. But the Dayton agreement did prescribe the peace enforcement roles of the High Representative and the deterrent forces first of NATO and now of the EU – a setup that has thus far prevented domestic political forces from threatening the peace. That guarantee has become ever more precarious as the international community eases its pressure, significantly so under Schmidt.
Schmidt would now effectively make the country an unrestrained protection racket for the hardliners once again. EUFOR already appears to be taking such a posture, asserting falsely that its Dayton and the force’s United Nations Security Council mandate is as second responder, preceded by local authorities. In defending this position, EUFOR states that its role is “to support the BiH authorities in maintaining a Safe and Secure Environment.” The whole point of the deterrent mandate that the EU took on from NATO in December 2004 was that local forces with coercive power were the most likely threat to the peace. They remain so today. If – as the High Representative’s submission alleges — the Kovačević ruling constitutes a threat to “the fragile foundation of BiH,” it is OHR and EUFOR — and the States that they represent — that allow those posing the security threat to have that leverage. Such an argument abdicates legal and moral responsibility to prevent such challenges from materializing.
Values-Neutral Realpolitik
Schmidt’s intervention is of a piece with a Western regional policy that seems to have turned its back on genuine democratic development in favor of other geopolitical priorities — such as the vain effort to lure next-door Serbia away from Russia — in a values-neutral realpolitik. But it also stems from the idea that the Balkans are inherently tribal, so the best course of action is to seek to manage or quarantine them (whilst securing other interests) rather than to foster progress. (I have argued that the Biden administration’s Balkan policy reflects fatalism and cynicism). Such an essentialist view, which the High Representative’s argument embraces, naturally favors the powers that be. But it also sidesteps any reckoning with the West’s own agency in the region’s protracted retreat from democratic liberalism and human dignity.
Despite six rulings by the European Court of Human Rights that could serve as signposts in developing a genuinely democratic and compliant post-Dayton constitutional and electoral order for Bosnia, no political forces — including the Democratic Front led by Croat member of the Bosnian Presidency Željko Komšić, for whom plaintiff Kovačević is an advisor — have used these to devise a potentially broadly popular concept of a new social contract. This seems to indicate that they collectively prefer to optimize the Dayton system to their partisan benefit, rather than risk the perquisites of power through a genuinely democratic and accountable system — “effective political democracy,” as the ruling termed it.
In fact, they are seeking to preserve what I have called a peace cartel. Such alternatives have been developed outside the realm of politics. But it remains to be demonstrated whether a constituency can be assembled throughout Bosnia and Herzegovina among citizens who support such alternatives. Nor is there yet international will to test this potential, despite ample evidence of rampant popular dissatisfaction with the political ecosystem as it is. As Frederick Douglass memorably stated, “Power concedes nothing without a demand.” That demand side of the equation can only be generated from within Bosnia. Only a broad, popular constituency assembled behind a positive alternative vision of the relationship among citizens (no matter which ethnicity or political party – or none — with which they identify) can confront the entrenched political interests represented in the current system and the evident international disbelief that such options are even feasible.
But the West has a responsibility to maintain a conducive environment for those who might generate the supply of such new political alternatives, providing the existential security that would enable people in Bosnia and the region to pursue the new social contracts they so desperately need. Schmidt’s intercession at the Court seems aimed at delivering a coup de grâce to any such aspirations, effectively signaling to citizens that Dayton is a ceiling – and that they must resign themselves to perpetual oligarchy.