A little more than an hour after polling stations closed in Bosnia’s Oct. 2 elections, at American instigation (and with only British support among leading Western powers), international High Representative Christian Schmidt imposed changes to both the country’s election law and the Constitution of one of its two entities, the Federation. The stated intent was to improve government functionality and to respect a Bosnian Constitutional Court ruling, and the specific mechanisms of the orders were different from his earlier proposal that had elicited public – and international – outcry when it was first leaked in late July.
But the essence of the move – and its apparent motivation – remain the same: to appease a single ethnonationalist party – the BiH branch of the Croatian Democratic Union (HDZ), the hardline wartime political party that again has controlled neighboring Croatia in recent years and has agitated for this change for years as a singular foreign policy goal.
Schmidt’s action not only represents a retreat from American policy to promote greater integration in Bosnia and Herzegovina (BiH). It also demonstrates a continuity in U.S. policy toward the Balkans from the avowedly amoral and transactional approach of the Trump administration. Bosnia’s vibrant and progressive civil society leaders, who have pressed for a BiH constitutional system fully inclusive of people who don’t identify with one of the three ethnonationalist groups, view Schmidt’s order, correctly, as a betrayal of U.S. support for ensuring individual rights (including as ordered in numerous European Court of Human Rights rulings). Instead, it cements the oligarchic status quo enshrined in the Dayton Peace Agreement that ended the war of the 1990s but has gripped BiH in dysfunction for most of the time since then.
Schmidt’s order and the way it was developed and rolled out also shows that, far from the theme of transatlantic unity of purpose that U.S. President Joe Biden had touted with his “America is back” message to allies, the real message to Europe in Bosnia is “America calls the shots,” much as was the case with the shameful and chaotic withdrawal from Afghanistan. Germany, in particular, was railroaded on this matter. The EU collectively gritted its teeth and – diplomatically though pointedly – distanced itself from the High Rep’s imposition. The U.S. thereby instrumentalized the need to project democratic unity in the wake of Ukraine in order to jam its allies for a deliverable “win.” Meet America-first, Biden style. This is quite different from the still-evident need for American leadership in the West – catalyzing a new policy – and pursuing it together with allies.
Election Eve Timing
The timing is insidious. The original plan in July would have violated European and international conventions on political rights; but changing the rules of the game immediately after the close of voting not only doubles down on that proposal but also makes a mockery of BiH citizens’ rights to vote and stand for office.
Schmidt’s insistence that the package “only relates to the post-election establishment of indirectly elected bodies” is misleading, apparently to mollify public opinion, as those bodies are the center of the Dayton system’s ethnic power-sharing decision-making. His package actually strengthens those mechanisms, embodied in the Federation’s upper parliamentary chamber, the House of Peoples, that represents the three “constituent peoples” – collectivities of the three main ethnic groups in Bosnia – plus to a smaller degree all those BiH citizens who don’t identify as such. Despite some limited cosmetic changes to the original proposal, the substance and rationale of the intervention in BiH’s political and electoral system remain unchanged.
The stated reasoning was to thwart efforts by HDZ BiH and its party president and former member of the tripartite Bosnian Presidency, Dragan Čović, to block the implementation of election results in the majority Bosniak and Croat Federation, one of two entities with the majority-Serb Republika Srpska that were established in the Dayton Accords. Čović had threatened steps that would have created an institutional-constitutional crisis by blocking post-election implementation of their results if the party’s demands to ensure its domination through the electoral system remain unmet.
Schmidt’s imposition eliminates the mechanisms by which the HDZ BiH could generate such blockage. But in return for removing this HDZ BiH structural leverage, the High Representative maintains two elements of the July proposal aimed at placating HDZ BiH by partially conceding to its ethnonationalist demands and strengthening its weight in the upper chambers vis-à-vis political challengers.
Reinforcing HDZ’s Grip
One of those elements relates to a 2016 ruling by the Constitutional Court of BiH in a case brought by Božo Ljubić, leader of the HDZ 1990 splinter party, who argued that a 2002 High Representative imposition (to enforce a 2000 Constitutional Court ruling) unfairly reduced Croat representation. The controversial 3 percent proposal initially tabled by Schmidt this summer is replaced now by raising the number of delegates of the caucuses representing the dominant ethnic groups in Bosnia – Bosniak (Muslim), Croat, and Serb — in the Federation House of Peoples from 17 to 23. This change achieves the same desired result: increasing of the share of delegates in the Croat caucus who are elected from cantons in the HDZ BiH stronghold of Western Herzegovina.
Previously, the Office of the High Representative (OHR) had held the position that the Ljubić ruling had already been implemented with a Central Election Commission decision in 2018 – a position that was subsequently confirmed by the Constitutional Court. This limited the damage the 2016 ruling had done to the Federation constitutional order by the political hijacking of the Court that had enabled the Ljubić ruling.
With this new provision, the OHR makes a pro-HDZ U-turn from its previously articulated position. Even more perfidiously, the high representative is trying to sell this provision as a strengthening of minority rights by arguing that the rights of “other” nationalities/ethnicities in BiH are expanded because their caucus in the Federation House of Peoples will be enlarged from 7 delegates to 11.
The second appeasement provision relates to the strengthening of the HDZ’s grip over the election of the Federation president (and through it of the government) in the House of Peoples (HoP). The threshold required to nominate a candidate for Federation president has been raised, from 6 of 17 members (35.3%) to 11 of 23 members (47,8%). This is even slightly higher than the threshold proposed in July (8 of 17, or 47%) – moving from just over a third to nearly half of members, magnifying HDZ leverage.
An End Run Around Opposition
In contrast with the July proposal, this latest Schmidt package, pushed by the United States and supported by the U.K., was not shared in advance with the other members of the international Peace Implementation Council, which oversees OHR and is charged with implementing the Dayton Peace Agreement. The order was imposed without the support of any other PIC Steering Board members. Germany had informed Schmidt that it did not support him imposing it. Schmidt’s imposition of the amendment package thus represents a historic low point in the unity of the West’s post-war policy in BiH. It is highly damaging on numerous levels.
First, it gives in to blackmail, rewarding the HDZ’s threat and its successful past instrumentalization of legal structures (such as the Ljubić decision) in a shortsighted – and ultimately futile (more on that later) – effort to prevent a post-election crisis. It thereby continues a failed Western policy of accommodating agendas of BiH’s ethnonationalists, which seem determined to divide Bosnia and perhaps even subdivide it, as hardline Serb make noise about secession and their Croat counterparts request a third, separate Croat entity.
Instead of reining them in, the West is undercutting core liberal democratic values and principles in the name of expedience and in favor of pacification. The last two years of U.S. and EU negotiations for “election law reforms,” aimed at accommodating Čović represent the depths of this history. By declaring progress while imposing regression, the international community signals to ethnocrats that their disintegrative agendas could define not just Western policy, but BiH’s present and future.
Second, the aim of forestalling crisis through appeasement will fail even on its own terms. In BiH’s oligarchic power-sharing system, no institutional regulation has the power to counteract deliberate political obstructionism. Institutionally empowering ruling ethnonationalist elites based on an ethnic, one-party-system mindset certainly will not achieve that desired effect.
Third, contrary to Schmidt’s statement, this imposition does not open the path to further election-law reforms that are sorely needed to restore the franchise to Bosnians who don’t identify as part of one of the ethnonationalist groups (“constituent peoples”). That would require implementation of multiple rulings by the European Court of Human Rights invalidating the elements of the BiH constitution that grant exclusive supremacy to those three groups, specifically the court decisions in Sejdić-Finci and Zornić.
In fact, Schmidt’s actions will have the opposite effect. While those rulings demand a shift of balance between collective ethnic and individual rights in favor of individual rights, the high representative’s changes to the political and electoral system deepen the ethnic and ethnoterritorial divisions within the system.
Damaging the Still-Necessary OHR
A fourth way the Schmidt order is damaging is toward the institution of the OHR itself. This does more damage than has been done over the years by any of his predecessors or those PIC members that have been pushing for a decade and a half for the closure of the OHR. From now on, defending the institution of the OHR – which is needed, with a military deterrent, to keep the peace and support progress in Bosnia so long as Dayton holds sway – means not only defending it against those actors, but apparently now even against the cynical posture of the United States, the U.K., and the High Representative himself.
Fifth, the bullying performance of the Biden administration strongly echoes the values-neutral “let’s make a deal” attitude of the Trump administration and its envoy Richard Grenell’s push for a Kosovo-Serbia land swap. The U.S. support of the Schmidt order is apparently led by mid-level rungs in the State Department pushing him to impose a package against the will of all EU PIC Steering Board members (with only Croatian support) and against his own German government’s position.
The current German government also bears responsibility. Berlin, which finances a core of German advisors to Schmidt, did not assertively resist his move publicly, arguing for its own policy of not promoting further division in BiH. Now would be the time for Berlin to demand the 360° policy review on BiH and wider Balkan policy that is long overdue for the West – and to conduct its own. Bundestag deputies who have been vocal advocates of a principled policy toward BiH and the Balkans need to lead the way for the government of German Chancellor Olaf Scholz.
Numerous members of the European Parliament have voiced their disagreement with Schmidt’s actions, with Austrian Green MEP Thomas Waitz calling it a “slap in the face of voters.” This sordid episode also ought to prompt long-overdue reflection in Washington and London, where legislators have in the past months voiced concerns with the direction of policy in Bosnia and in the Western Balkans more broadly.
The current U.S. and European policies are incongruent with the posture that the liberal democratic West has adopted following Russia’s escalation of its irredentist war against Ukraine on Feb. 24. They cannot maintain moral credibility by accommodating primordial nationalism in the Balkans – and in the EU and NATO – while rightly confronting it in Ukraine. Biden and Secretary of State Antony Blinken should see this episode as an indicator of a U.S. policy that has gone dangerously astray – and needs to be rethought from first principles, together with allies. Until they do, the United States is effectively pursuing a policy that actually serves its geopolitical adversaries, rather than challenging them.