The Political System of Bosnia and Herzegovina: Institutions – Actors – Processes [1st ed.] 9783030543860, 9783030543877

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Damir Banović Saša Gavrić Mariña Barreiro Mariño

The Political System of Bosnia and Herzegovina Institutions – Actors – Processes

The Political System of Bosnia and Herzegovina

Damir Banović • Saša Gavrić Mariña Barreiro Mariño

The Political System of Bosnia and Herzegovina Institutions – Actors – Processes

Damir Banović Faculty of Law University of Sarajevo Sarajevo, Bosnia and Herzegovina

Saša Gavrić Sarajevo, Bosnia and Herzegovina

Mariña Barreiro Mariño Sarajevo, Bosnia and Herzegovina

ISBN 978-3-030-54386-0    ISBN 978-3-030-54387-7 (eBook) https://doi.org/10.1007/978-3-030-54387-7 © Springer Nature Switzerland AG 2021 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Preface

Bosnia and Herzegovina have arguably been one of the most complicated and interesting political systems in the world. The Dayton Peace Agreement managed to end the war in the country after the fall of Yugoslavia, yet the political process still maintains various levels and divisions between political entities. The resulting political system created a complex federal structure, with 13 federal units and 14 governments and parliaments. Check-and-balance and veto mechanisms have been introduced, hoping that consensus-based political cultures will develop. The international community attempted to use new instruments of conflict resolution; however, not all of these have succeeded. The political system of Bosnia and Herzegovina has been the subject of hundreds of national and international research projects. These research projects tend to focus on specific aspects, like the decision-making, the peace-building process, the influence of the international community, the interethnic relations, the federalism and its institutions. The authors rarely try to present an overview of the political system of the country. Our intention is to present an introduction to social science students and all those interested in learning the basics about the Bosnian–Herzegovinian political structure, its institutions and processes. This book builds upon the text Das politische System Bosnien und Herzegovinas by Saša Gavrić and Solveig Richter which was published in the edited volume Die politischen Systeme Osteuropas (editor Wolgang Ismayr, 2010, VS Verlag für Sozialwissenschaften, Wiesbaden, Germany) and presents an updated version of the monograph The Political System of Bosnia and Herzegovina. Institutions–Actors– Processes, co-authored by the authors of this book and published by the Sarajevo Open Centre in 2012. Following the same format as in 2012, Damir Banović wrote the introduction (1) chapters and Chapters 1.4, 3.3, 4.1 and the Epilogue. Saša Gavrić drafted Chapters 2.1, 2.2, 2.3, 3.1, 3.2, 4.2 and 5.1, while Mariña Barreiro is the author of Chapters 4.3, 5.2, 5.3, 5.4 and the entire heading 6. The three authors are solely responsible for their chapters.

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We want to thank Kala Palanisamy, Maria David, Faith Su, Lorraine Klimowich and Anja Trautmann for the great proofreading and inputs. We also want to express our gratitude to them for the very professional book cover and layout. We hope that you will enjoy and learn from this publication and are looking forward to your critical feedback! Sarajevo, Bosnia and Herzegovina  Damir Banović   Saša Gavrić   Mariña Barreiro Mariña

Acronyms

AVNOJ Anti-Fascist Council for the National Liberation of Yugoslavia bh. Bosnian-Herzegovinian BHRT BH Radio Television BiH Bosnia and Herzegovina CEFTA Central European Free Trade Agreement CoE Council of Europe CoP Council of Peoples CRA Communication Regulatory Agency CSO Civil society organisation DF Democratic Front DNS Democratic People’s Union DNZ Democratic People’s Community DPA Dayton Peace Agreement ECHR European Court of Human Rights EU European Union FBiH Federation of Bosnia and Herzegovina GDP Gross domestic product HDZ Croatian Democratic Union HDZ 1990 Croatian Democratic Union 1990 HoR House of Representatives HoP House of Peoples ICTY International Criminal Tribunal for the Former Yugoslavia KCD BiH Coalition for a United and Democratic Bosnia and Herzegovina MP Member of parliament MAP Membership Action Plan NA RS National Assembly of Republika Srpska NATO North Atlantic Treaty Organization NDP People’s Democratic Movement NGO Non-governmental organisation NHI New Croatian Initiative NSRzB People’s Party for Work and Betterment vii

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OHR OSCE PA BiH PBS BiH PDP PIC RCC RTVFBiH RTRS RS RS RS SAA SAP SBiH SBB SDA SDP SDS SEECP SNSD SP SPRS SRS UN UNDP USAID ZAVNOBIH

Acronyms

Office of the High Representative Organization for Security and Cooperation in Europe Parliamentary Assembly BiH Public Broadcasting System in Bosnia and Herzegovina Party of Democratic Progress Peace Implementation Council Regional Cooperation Council Radio and television of FBiH Radio Television of Republika Srpska Republika Srpska Radical Party of Republic Srpska Stabilisation and Association Agreement Stabilisation and Association Process Party for Bosnia and Herzegovina Party for a better future Party of Democratic Action Social Democratic Party Serbian Democratic Party South-East European Cooperation Process Alliance of Independent Social Democrats Socialist Party Socialist Party of Republika Srpska Serbian Radical Party United Nations United Nations Development Programme United States Agency for International Development State Anti-fascist Council for the National Liberation of Bosnia and Herzegovina

Contents

1 Introduction����������������������������������������������������������������������������������������������    1 1.1 Historical, Political and Social Context��������������������������������������������     1 1.2 Constitutional System, Principles and Reform ��������������������������������     8 1.2.1 Constitutional System ����������������������������������������������������������    10 1.2.2 Constitutional Development and the Role of the Constitutional Court ��������������������������������������������������    11 1.2.3 Further Democratic and Constitutional Development? The Case-­Law of the European Court of Human Rights������������������������������������������������������������������������������������    16 1.3 Human Rights ����������������������������������������������������������������������������������    19 2 Institutions������������������������������������������������������������������������������������������������   25 2.1 Collective Head of the State: State Presidency ��������������������������������    25 2.2 Parliament: Parliamentary Assembly������������������������������������������������    30 2.3 Government: Council of Ministers ��������������������������������������������������    37 2.4 Reference: Prepared by the Authors, Based on Data from the Council of Ministers Web Page������������������������������������������    40 2.5 Judicial System ��������������������������������������������������������������������������������    41 3 Federalism������������������������������������������������������������������������������������������������   49 3.1 Federal Units: Entities����������������������������������������������������������������������    49 3.1.1 Federation of Bosnia and Herzegovina��������������������������������    51 3.1.2 Republika Srpska������������������������������������������������������������������    57 3.2 Brčko District������������������������������������������������������������������������������������    59 3.3 Local Self-Government��������������������������������������������������������������������    61 4 Processes ��������������������������������������������������������������������������������������������������   67 4.1 Elections and Electoral Law ������������������������������������������������������������    67 4.2 Legislative Decision-Making������������������������������������������������������������    72 4.3 Political Culture and Political Participation��������������������������������������    75 5 Actors��������������������������������������������������������������������������������������������������������   79 5.1 Political Parties ��������������������������������������������������������������������������������    79 ix

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5.2 Civil Society and Citizens Interests��������������������������������������������������    86 5.3 Media������������������������������������������������������������������������������������������������    89 5.4 International Community������������������������������������������������������������������    92 5.4.1 Office of the High Representative and the Peace Implementation Council�������������������������������������������������������    93 5.4.2 European Union��������������������������������������������������������������������    96 5.4.3 Organization of Security and Cooperation for Europe ����������������������������������������������������������������������������    97 5.4.4 Council of Europe ����������������������������������������������������������������    98 5.4.5 North Atlantic Treaty Organization��������������������������������������    99 6 International Politics��������������������������������������������������������������������������������  101 6.1 Foreign Policy ����������������������������������������������������������������������������������  101 6.2 Regional Relations����������������������������������������������������������������������������  102 6.3 European Integrations ����������������������������������������������������������������������  104 Epilogue: Is There a Way Out of the Dayton Political System?������������������  107 The Political System of Bosnia and Herzegowina (Without Brčko District) ��������������������������������������������������������������������������  111 Bibliography ����������������������������������������������������������������������������������������������������  113

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Chapter 1

Introduction

In this chapter we will present three correlated topics: the historical and political social context (for the Bosnian1 political and constitutional system), the constitutional system, principles and reform and an overview of the human rights situation. In Sect. 1.1, we will provide some socio-historical and political facts which in our understanding shape and influence the political system development, its contemporary functions and performances. In Sect. 1.2, the idea is to present basic elements and the most important constitutional principles of the Bosnian-Herzegovinian constitutional system; its development influenced by the BiH Constitutional Court and possible further changes influenced from the “outside”, especially by the European Court for Human Rights (ECHR). At the end of this chapter, we will present the concept of human rights implemented in the Bosnian-Herzegovinian political system, problems and challenges related to the implementation, enforcement and breach of human rights.

1.1  Historical, Political and Social Context The study of a country’s history is of key importance for the understanding of its contemporary issues and characteristics. In the same way, if we want to understand contemporary Bosnian political system, we should look up at its multinational, multi-religious history and “federal” experience. As the historian Marko Attila Hoare argues, Bosnia and Herzegovina in its contemporary form, as a country with a specific social structure inhibited by three principal nationalities (Bosniaks, Croats, Serbs), was the product of (1) its medieval statehood (end of the eleventh century until 1463) and the Ottoman (1453–1878), Austro-Hungarian (1878–1914)

1  The adjectives Bosnian and Bosnian-Herzegovinian will be used interchangeable and as synonyms, always covering the entire Bosnia and Herzegovina.

© Springer Nature Switzerland AG 2021 D. Banović et al., The Political System of Bosnia and Herzegovina, https://doi.org/10.1007/978-3-030-54387-7_1

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and Yugoslav period of rule (Keil 2013, p. 54). It is worth mentioning that during the Ottoman period of rule, the distinct multi-religious character of a country inhabited by Muslims, Christian Orthodox and Catholics, plus the existence of Jewish minority gave the country its later multinational character (Keil 2013, p. 56). Bosnia and Herzegovina enjoyed a high degree of autonomy in the Ottoman Empire. For example, in the mid-sixteenth century, Bosnia received the status of an eyelet in the Ottoman Empire, which is comparable to an autonomous province (Imamović 2001, p. 117). Additionally, Bosnia and Herzegovina regained a semiautonomous position in the Austrian-Hungarian Empire in 1910 (Imamović 2001, p. 208–217). On 17 February 1910 Bosnia and Herzegovina was granted a constitution (Zemaljski štatut) which presaged the creation of a Bosnian parliament (Sabor). Besides depriving its autonomy in political and cultural terms, in 1929 by establishing the Kingdom of Yugoslavia the territorial integrity of Bosnia and Herzegovina was also destroyed for the first time in centuries (Keil 2013, p. 65). In 1914, the capital of Bosnia and Herzegovina, Sarajevo, was the scene of the assassination of Franz Ferdinand, heir to the Austro-Hungarian throne, which led to the First World War. In 1918, it became a part of the Kingdom of Serbs, Croats and Slovenes, which, in 1929, became the Kingdom of Yugoslavia. In its contemporary history, Bosnia and Herzegovina confirmed its statehood by the decisions of the State Anti-fascist Council for the National Liberation of Bosnia and Herzegovina (Zemaljsko antifašističko vijeće narodnog oslobođenja Bosne i Hercegovine ZAVNOBIH) and the Anti-Fascist Council for the National Liberation of Yugoslavia (Antifašističko vijeće narodnog oslobođenja Jugoslavije—AVNOJ) during the Second World War. ZAVNOBIH held three sessions: the first in Mrkonjić Grad on 25 November 1943 (now celebrated as Statehood Day), second in Sanski Most, from 30 June until 2 July 1944 and the third and the last in Sarajevo, on 26 April 1945. The delegates adopted a resolution—ZAVNOBIH Proclamation which stated constitutional equality between Serbs, Muslims and Croats of Bosnia and Herzegovina, which is their common and indivisible homeland. On the second session of AVNOJ held in Jajce (town in Bosnia and Herzegovina) on 29 and 30 November 1943, decisions and resolutions confirmed the idea to create a federal Yugoslavia, based on the right of self-determination of nations in which the southern Slavic peoples would live in six constituent republics and with equal rights. After the Second World War, when its former borders were re-established, Bosnia and Herzegovina was part of the Federal National Republic of Yugoslavia (1946 Constitution), and from 1963, part of the Socialist Federal Republic of Yugoslavia. According to the principle of self-government (samoupravljanje), the 1974 Constitution guaranteed the republics and autonomous provinces further competencies, which was ultimately one factor that led to the dissolution of Yugoslavia (Calic 1996, p. 17). Discussions between Serbs and Croats regarding state reform and contradictions within the governing system proved unsuccessful in preserving the federal state. On 15 October 1991, following declarations of independence by Slovenia and Croatia, the parliament in Sarajevo also decided to part with Yugoslavia. At the demand of the EU, a referendum was held on 29 February and 1 March 1992. The majority of citizens voted for independence (99.7%), but this percentage

1.1  Historical, Political and Social Context

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does not accurately represent the entire population, as a great number of Bosnian Serbs boycotted the referendum. The total turnout of voters was 63.4%. The EU and the United States recognized Bosnia and Herzegovina as an independent state on 6 April 1992. On 22 May, Bosnia and Herzegovina became a member of the United Nations (Calic 1996, p. 44). By that time, conflict between Croatia and the Yugoslav People’s Army (Jugoslovenska narodna armija) had already erupted. Bosnia and Herzegovina, as a multi-ethnic republic centrally located in the Yugoslav state, was dragged into and broken up by the conflict. The war between Croats and Serbs acted as “the accelerant to further segregation and disintegration processes” (Calic 1996, p. 70) and drove people to participate in great atrocities: mass killings, forced displacements and massacres. All three ethnic groups wanted the same territory, each to protect their own interests. The presidents of Croatia, Franjo Tuđman, and of Serbia, Slobodan Milošević, had already agreed on how to divide the land. The Republika Srpska (RS), the Serb paramilitary state within BiH, declared its independence on 9 January 1992, but the international community did not recognize it since the right to gain its independence had republics not the nations/ethnic groups (Gromes 2007, p. 143). A bit earlier, on 18 November 1991 the Croatian Community of Herzeg-Bosnia (Hrvatska zajednica Herceg-Bosna) was proclaimed. On 28 August 1993, Herzeg-Bosnia was declared a republic following the failure of the Owen-Stoltenberg Peace Plan, and it covered the majority of the Herzegovina and parts of central Bosnia (Keil 2013, p. 77). From 1993 to 1994, war raged between Bosniaks and Croats in Bosnia and Herzegovina. Under pressure and facilitation from the international community, Bosniaks and Croats signed 1994 the Washington Peace Agreement that led to the foundation of the Federation of Bosnia and Herzegovina (FBiH) and partly resolved the conflict in the region. However, the massacre in Srebrenica in July 1995, defined as genocide by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and reaffirmed by the International Court for Justice (ICC) in the case Bosnia and Herzegovina vs. Serbia and Montenegro from February 2007 (ICJ 2007), reminded the world’s public of their helplessness and inability to act, leading to forceful United Nation (UN) and North Atlantic Treaty Organization (NATO) military action. With NATO support, Croatian and Bosniaks troops defeated the Serbian military forcing them to come to the negotiating table. The General Framework Agreement for Peace was completed on 21 November 1995  in Dayton (Ohio, United States of America), and signed on 14 December 1995  in Paris, France. Through its provisions and annexes, the Dayton Peace Agreement (DPA) ended the war and created the state of Bosnia and Herzegovina, but divided the country along ethnic lines, confirming the existence of two entities (federal units): the Republika Srpska, with a Serb majority (49% of territory), and the Federation of Bosnia and Herzegovina, with a Bosniak and Croat majority (51% of territory). Until the decision regarding Brčko District was delivered on 8 Mach 2000, the Brčko corridor remained under international supervision, administrated by the RS (see more in the Chap. 3). It is important to highlight, that the Dayton constitution confirmed the new state of Bosnia and Herzegovina as the legal successor to the Republic of Bosnia and Herzegovina (Constitution of BiH, Article 1).

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The Dayton Peace Agreement attempted, under the motto “one State, two Entities and three Nations”, to create a balance between opposing interests, and to restrain disintegrative political forces. A complex political system was created, with four administrative levels and veto mechanisms for the three ethnic groups. Consociationalism was introduced to the political system. The DPA foresaw the establishment of the Office of the High Representative (OHR), an international governing body with the ability to coordinate and supervise the implementation of the civil aspects of the Agreement. Since 1997, the competencies of the OHR had expanded significantly and included the right to law enforcement and the power to remove public officials from office (the so-called Bonn Powers). As a way to secure peace, the DPA also foresaw the allocation of NATO troops within the country. In 2004, this task was transferred to EU troops. Today, EU troop forces have, among the others, task in supporting the Armed Forces (Oružane snage) of BiH in their progression towards NATO standards (EUFOR web page). According to the census organized in 1991, there were approximately 4.38 million citizens living in the country. Last census was organized in 2013 according to which Bosnia and Herzegovina has approximately 3.53 million citizens. According to ethnic structure, there are 50.1% Bosniaks; 30.8% Serbs; 15.4% Croats and 3.7% of the Others.2 The constitution defines demos solely along the lines of ethnicity and only recognizes the three dominant ethnic groups: “Bosniaks, Croats and Serbs as constituent peoples (along with Others) and citizens of Bosnia and Herzegovina hereby determine that the Constitution of Bosnia and Herzegovina is as follows” (…) (Constitution BiH, Preamble, line 10). “The Others” belong to national minorities (Law on Rights of National Minorities of BiH recognizes 17 national minorities), or those with mixed backgrounds, or who are simply without ethnic or national identification. Group of “the Others” are Bosnian citizens, but according to the constitutional provisions have limited political rights. The Constitutional Court of BiH delivered the so-called Decision on Constituent Peoples in the summer of 2000, in which some parts outlawed provisions of the entities’ constitutions which were discriminating against constituent peoples and “the Others”. The following changes were made: Serbs became constituent peoples in the Federation of Bosnia and Herzegovina, and Bosniaks and Croats became constituent peoples in the Republika Srpska. These changes also affected “the Others”, expanding their political rights at entity and cantonal levels (in FBiH) (see more under Sect. 3.1 about the federal units). However, the constitutional system continued to be based on the equality of ethnic groups, and not of individuals. To be more precise, the constitutional system has provided the supremacy of collective rights to the three ethnic groups, while individual rights are seen as a secondary. “Clashes” between these two sets of rights can be traced thought the judgments of the European Court for Human Rights in the cases Sejdić and Finci (2009), Zornić

2  If not differently stated, all data on the population and census are taken from the web page of the Agency for Statistics of BiH. The link to the web page can be found in the Bibliography.

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Table 1.1  Ethnic structure in BiH, FBiH and RS according to the 1991 and 2013 census

Total (million) Bosniaks (%) Croats (%) Serbs (%) Other (%)

BiH 1991 4.38 43.47 17.38 31.21 7.94

2013 3.53 50.1 15.4 30.8 3.7

FBiH 1991 2.7 52.3 21.9 17.6 8.2

2013 2.22 70.4 22.4 2.5 4.6

RS 1991 1.6 28 9.2 55.5 7.3

2013 1.23 14 2.4 81.5 2.1

Source: web page of the agency for statistics BiH, see reference in the bibliography

(2014), Šlaku (2016) (see more below) which, at the end, can influence the transition from the cooperative to more liberal concept of consociational democracy. Although Bosnia and Herzegovina is a secular state, the dominant ethnic groups also define themselves through religion: Bosniaks through Islam, Croats through Catholicism and Serbs through Eastern Orthodoxy. The combination of religion, ethnicity and the associated political rights has had a constant impact on the social sphere (Table 1.1). Since 1995, Bosnia and Herzegovina has been dealing with many parallel transformation processes: from a war-torn to a peace-building society, dealing with the past and war crimes, reconstruction of the state, democratization processes and transition from a communist planned economy to a capitalist liberal free (Banović 2015). The war in Bosnia and Herzegovina created three more or less homogenous areas in the country. Radical changes in the ethnic composition can be traced following the census held in 1991 and the census held in 2013. For example, the number of Serbs in Federation decreased from 475.866 in 1991 to 56.550 in 2013, whereas the number of Bosniaks in the Republika Srpska decreased from 441.077 in 1991 to 171.839. Many of them found new homes in parts of the country where their ethnicity formed the majority. Many others also abroad. As Keil argues, creating territorial homogenization allowed for the introduction of a multinational federal system (Keil 2013, p. 78). That means the territorial concentration of different national groups in specified areas is a core precondition for the introduction of multinational federation. Otherwise, non-territorial autonomy would be more appropriate. Nevertheless, the idea that the Bosnian federalism was introduced as the result of war is the most problematic legacy of the Bosnian federation (Keil 2013, p. 78) The number of victims during the recent war in BiH has been the source of controversy and political manipulation. Since 1995 international official has accepted an estimate of 200,000 victims, as has the ICTY in the Čelebići case delivered on 20 February 2011 (Ivanišević 2008). But independent and rigorous research under the authority of the Research and Documentation Centre in Sarajevo concluded that the total number of causalities was probably lower (Ivanišević 2008, p.  3). The Research and Documentation Centre has established identities of 97,207 persons killed or missing; 39,684 were civilians. Of this number, 66% of victims were Bosniaks, 25.5% Serbs and 8% Croats. Some 2.2 million became refugees and 1.3 million were internally displaced. The conflict was characterized by appalling

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atrocities—massacres, widespread rape, imprisonment in concentration camps and brutal ethnic cleansing (all data as per Ivanišević 2008, p. 3). Dealing with the past, especially war crimes and their perpetrators, within and among the ethnic groups has been extremely difficult. For many years following the end of the war, the justice system was unwilling to work on the issue of war crimes, and cooperation with the ICTY was insufficient. During and immediately following the 1992–1995 conflict, the BiH domestic legal system processed war crime cases concurrently with the ICTY (OSCE 2018a, p. 2). A lack of coordination in the handling of war crimes cases files and concerns over the fairness of domestic trials tried at the entity level led to the so-called Rome Agreement in 1996. This Agreement created and independent oversight mechanism in which the ICTY Office of the Prosecutor preformed a review function in relation to investigations and prosecutions undertaken by the BiH authorities (OSCE 2018a, p. 2). By August 2004, in the context of its closing strategy, the ICTY transferred the mandate to oversight the cases to the BiH Prosecutor’s Office. In 2007 it was concluded that, despite the establishment of the war crimes departments of the Court of BiH and the Prosecutor’s Office in 2005, a significant backlog of cases remained (OSCE 2018a, p. 3). This led to recognition of a need for a strategic approach to domestic war crimes processing. This meant that some system of prioritizing had to be introduced and with thousands of cases pending, it would be impossible to try them all before the Court of BiH (OSCE 2018a, p.  4). According to the 2008 National Strategy for War Crimes Processing the less complex cases should be distributed among entity and Brčko District courts (OSCE 2018a, p. 4). In 10 years of the Strategy’s implementation its goals have been largely achieved (OSCE 2018a, p. 4). In April 2017, the Council of Ministers established a Working Group to address the implementation issues and to prepare revisions. In May 2018, the Working Group submitted its proposal for revisions to the Council, but still the revised strategy has not been adopted yet. According to the Strategy, the plan is to close chapters of war crimes processing by 2023. According to the OSCE Report, as of December 2017, the BiH judicial authorities have processed 473 war crimes cases generally in line with international law and standards. More than 800 individuals were identified as falling under “Category A”3 and as of early 2018, the BiH judiciary had brought proceedings in relation to more than 560 (or 70% of these individuals) (OSCE 2018a, p. 5). The new BiH constitution called for post-war elections in 1996 and aimed to create a functional federation with democratic institutions and the capacity to impose and implement decisions. But, the first post-war elections brought clear victory to the nationalistic parties, which perpetuated the conflict. Nationalistic parties preserved their illegal networks and opposed the constitutional structures at the state level. Dualism of formal institutions and powers created obstacles within the democratizing and restructuring processes. Political representatives of Bosniaks were eager to identify BiH as their “own state”, while political representatives of

3  “Sufficient by international standards to provide reasonable grounds for belief that (the person) may have commited the (specified) … serious violation of international humanitarian law”.

1.1  Historical, Political and Social Context

7

Croats and Serbs hesitated to acknowledge the Dayton construction and pushed for areas in which they formed a majority to become independent or be annexed to neighbouring countries, e.g. Croatia and The Federal Republic of Yugoslavia. Democratic changes in Croatia and Yugoslavia in 2000 influenced their decision to withdraw their support of the secession attempts. The conflict regarding the mere existence of the state shifted to a discussion on the specific powers of the state and its entities. This also empowered centrifugal politics that worked to weaken efforts focused on creating a stronger state. The year 2000 brought with it a progressive period with non-nationalistic parties winning in general elections. But internal differences within the grand coalition still blocked substantial reforms. Fortunately, more or less free and fair elections have become part of the political system and influenced the periodic change of governments. The possibility of comprehensive reform at the state level arose in 2006 when representatives of the three major ethnic groups and non-ethnic political parties reached an agreement on constitutional reform, but the changes were rejected in the state-level parliament, just two votes short of reaching a two-thirds majority. This failure threw the state into political crisis, the effects of which are still being felt. To conclude, Bosnia and Herzegovina is the case of the applied multicultural concept where the constitutional and political system reflects the social reality of ethnic division by introducing the collective rights, procedures and institutions that prevent the domination of any social segments. In formal legal sense, the political system of Bosnia and Herzegovina has constitutionalized the elements of consensual democracy by the 1995 Constitution with its subsequent developments (Banović 2015, p.  251–252). Elements of the consensus-based democracy in the Bosnian political and constitutional system can be seen thought-out the following: establishment of multi-party system; proportional electoral law; bicameralism; veto mechanisms (entity voting and vital national interests); quotas; proportional representation of constituent peoples, limited proportional representation of national minorities and ethnically undecided citizens in legislative bodies or in governments; broad coalitions; executive--legislative separation of powers; constitutional judicial control; cooperativeness of interest groups; rigid constitutionalism and independent central bank (Banović 2015, p. 252–277; Gavrić 2007). But in order to ensure the stability and consolidation of the democratic political system, it is necessary to have democratic/participative political culture in that social context (Banović 2015, p. 227). This includes awareness of national identity, developed social and political trust in other citizens, willingness to expand the political cooperation, and a deeper level of effective, rather than only instrumental link with the concerned political system (Banović 2015, p. 277). In the case of the consensual elements included in the political system of Bosnia and Herzegovina and the preconditions for the developments of democratic political culture, it is possible to note the discrepancy between the formal framework that was introduced by the Constitution and the social context that can still be characterized as post-conflict, post-socialist and transitional, as well as divided along the ethnic lines (Banović 2015, p. 277). What is characteristic of all post-socialist states, regardless if it is the

8

1 Introduction

case of the former Yugoslavia or Union of Soviet Socialistic Republics, is precisely the highly distinctive difference of the formally introduced democratic political system and the absence of participative democratic political culture as material basis for the sustainability of the institutions of the system (Banović 2015, p. 277). In such conditions, with legacy from the socialist regime and without adaptation of political culture, internalization of rules and procedures, dissemination of democratic values through the activation of civil society, resolving of constitutional issues and democratic behaviour of political elites, it is impossible to speak of democratic consolidation as the last stage in the democratic transition (Banović 2015, p. 278). What is specific for the BiH political system and what complicates the process of democratic consolidation is the following: (1) post-conflict, post-socialist and transitional social context; (2) division of society along ethnic lines: (3) legacy of non-­ democratic political culture; (4) application of multicultural concept of predomination of collectives, or elements of consensual democracy without resolving the issue of public legal position of an individual; (5) the absence of minimum common identity and consensus on the nature of political system (Banović 2015, p. 278). The concept of consensual democracy does not contextualize the nature of political culture as its material basis and foundation of its practical sustainability (Banović 2015, p. 278). In other words, what values, forms of cooperation and trust citizens should have in this form of democracy (Banović 2015, p. 278). Besides the aforementioned general matters, the specific contextualization of material basis for the consensual concept of democracy should also include, among other things, the following: (1) minimal identity content that transcends the identity of social segments; (2) cooperation and development of trust among social segments on the collective, as well as individual level in terms of issues of common interest; (3) consensus and legitimacy of political representation of social segments as values in the relation of political elites; (4) activation and cooperation of civil society within and between social segments; (5) democratic education that fosters the values within social segments, as well as the values between the segments and (6) minimal consensus on the nature of political system (Banović 2015, p. 278)

1.2  Constitutional System, Principles and Reform The nature of the political and constitutional system is observed by different authors in different manners, which results in different conclusions. From a comparative perspective, the system of Bosnia and Herzegovina is hard to compare with any other system. However, at a higher level of abstraction it is possible to argue about a specific type of federation. Some authors observe the federalism of Bosnia and Herzegovina as a “form of internationally agreed federal system that is an integral part of a peace plan which is unique for Bosnia and Herzegovina and that, therefore, Bosnia and Herzegovina represents a new model of federalism” (Keil 2013, p. 78). “It is a distinctive system that combines two forms of federalism—federation and

1.2  Constitutional System, Principles and Reform

9

confederation” and that has been functioning already for 25 years (Stanković 2019, p.  2). Actually, if it needs to be classified into classical theoretical framework, Bosnia and Herzegovina might be characterized as a federation with distinct confederal elements (Stanković 2019, p. 4). Similarly, Goran Marković believes that the case of Bosnia is about the establishment of two forms of state that very rarely appear simultaneously. This is a form of political regime of consociational democracy and a federal form of government (Marković 2019, p. 1). In fact, one may make the following conclusions. First, Bosnia and Herzegovina is a country with federal system (Marković 2019, p. 1). Elements of federal structure of Bosnia and Herzegovina may be noticed in the following criteria: (1) pluralistic constitutional system composed of the constitutional system of the federal level and constitutional systems of federal units; (2) hierarchical relationship between the constitutional system of the federal state and federal units, where the former is superior to the latter, which means that there is only one, but very complicated constitutional system; (3) the division of competences between the federal state and federal units that is usually provided for by the federal constitution; (4) federal units are quasi-states because they have their own constitutional systems, state government organization and the power of individual decision-making; (5) federal units have the right to self-organize; (6) federal units are represented in the federal authorities and (7) federal units do not have the right to succeed (except in several federal states) (Marković 2019, p. 2). Second the necessity of political regime of consociational democracy results from the fact that its society is divided (Marković 2019, p. 1). And, third the constitutional system is based on the combination of these two forms, where consociational mechanisms have a certain advantage over the federal state principles (Marković 2019, p. 1). Bosnia and Herzegovina is one of rare fully consociational federations as it contains all or almost all features of (1) federal structure and (2) consociational democracy (Marković 2019, p. 13). In the case of Bosnia and Herzegovina, federalism has been supplemented by the consociational principle through (1) the composition of institutions, whether by quota-based or proportional composition in terms of representation of social segments and (2) manner of their decision-making, whether this relates to the implementation of blockade mechanisms or consensus as a manner of making decisions (Marković 2019, p.  13). Having in mind two factors (1) non-­ existence of group cohesion within a fully consociational system and (2) the presence of the OHR with still (at least formal) prerogatives to intervene in political decision-making, we could argue that in the Bosnian context we can talk about imposed consociationalism (Merdžanović 2015, p. 351–357). Some authors argue that Bosnia and Herzegovina is an example of an asymmetric and highly decentralized federation in which the Republika Srpska, in terms of its structure, is unitary subnational entity, while the Federation of BiH is a federation within a federation. Or, how Maja Sahadžić observes it, Bosnia and Herzegovina is a weak case of constitutional asymmetry (Sahadžić 2019, p. 68). In case of Bosnia and Herzegovina, just like in other federal states, federalism as a concept is not completed and static, but it is dynamic and changing. Its dynamics is not reflected in formal amendments to the Constitution of Bosnia and Herzegovina,

10

1 Introduction

but through the factual changes of the Constitution which are based on the principle of “additional responsibilities” (Article III 5a, Constitution of BiH). According to this principle, Bosnia and Herzegovina is going to assume responsibility (1) for such matters as are agreed by the entities; (2) are provided for in Annexes 5 through 8 to the General Framework Agreement or (3) are necessary to preserve sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina (Išerić 2019, p. 25–26). The first form of additional responsibilities requires the agreement of both entities, while other two do not (Išerić 2019, p. 26). Therefore, on the basis of an agreement between entities, the responsibilities for defence, indirect taxation, as well as part of competences in the field of internal affairs, have been transferred to the central level (Balić 2019, p. 15). In that way, the process of changing the nature of federalism has been directed towards transfer of competences to the central government, which was followed by the establishment of appropriate institutions (e.g. State Border Police, Directorate for Coordination of Police Bodies of BiH and the Indirect Taxation Authority), strengthening central authorities as well as the establishment of new judicial state-level bodies, such as the Court of Bosnia and Herzegovina, the Prosecution of Bosnia and Herzegovina and the High Judicial and Prosecutorial Council (Balić 2019, p. 15). This significantly reduced confederal elements provided for in the original 1995 Constitution that went through a process of factual changes, including the nature of federalism in Bosnia and Herzegovina.

1.2.1  Constitutional System The BiH Constitution is part of the General Framework Agreement for Peace in Bosnia and Herzegovina (Annex 4 of the DPA). The Dayton Peace Agreement is a de facto series of agreements consisting of one framework agreement and twelve special agreements referred to as Annexes of the General Framework Peace Agreement for Bosnia and Herzegovina. The special agreements, which were signed by different parties, relate to civilian (Annexes 2–11) and military components (Annexes 1-A and 1-B). Annex 4 contains the Constitution of Bosnia and Herzegovina, which, unlike other annexes, was not made in the form of an agreement. Although the last sentence of Article XI states that the Agreement shall be signed in the three official languages of Bosnia and Herzegovina (i.e. Bosnian, Serbian and Croatian) and English languages, the constitutional charter of BiH was officially signed only in English. There are no official versions made in the official languages of Bosnia and Herzegovina, nor have the relevant authorities translated this document, including the Constitution, only un-official translations have been used, even by the Constitutional Court of BiH which uses this version as the basis for the interpretation and development of constitutional principles and norms. The DPA, including the Constitution, has never been published in the official gazettes of the state and/or entities.

1.2  Constitutional System, Principles and Reform

11

Even though Bosnia and Herzegovina continued its legal existence according to the international law (Article I/1, Constitution of BIH), this Constitution brought about a completely new structure, including new state authorities, vertical and horizontal division of responsibilities, international administration sui generis, a system of collective and individual rights (Ademović et  al. 2012, p. XXI). Although the Constitution has formally been amended only once, the constitutional system has gone through significant changes, especially in the field of division of responsibilities and the state institutional organization on the basis of the implementation of constitutional provisions on additional responsibilities. The Constitution of the Republika Srpska was adopted on 28 February 1992 and published in the Official Gazette of the Republika Srpska. Since 1992, there have been more than 120 amendments to the Constitution undergone throughout 17 constitutional change procedures. Article 1 of the Constitution states that the Republika Srpska is territorially unified, indivisible and an inalienable constitutional and legal entity that shall independently perform its constitutional, legislative, executive and judicial functions. The Constitution created a centralized federal unit. The Washington Agreement created the Federation of Bosnia and Herzegovina in March 1994. On 30 March 1994, the Constitutional Assembly of the Federation of Bosnia and Herzegovina adopted its constitution, establishing the second of the two entities in Bosnia and Herzegovina. Unlike the Republika Srpska, the Federation of Bosnia and Herzegovina is further federalized, made up of ten cantons with broad constitutional powers and discrepancies in the areas like education, culture, social protection or health care. The cantonal system was selected to prevent dominance by one ethnic group over the other. Since 1994, this constitution has been amended more than hundred times. Brčko District of Bosnia and Herzegovina was established in 2000 after an arbitration process undertaken by the High Representative. It is a self-governing administrative unit under the sovereignty of Bosnia and Herzegovina. The Constitution of Bosnia and Herzegovina, as well as all relevant decisions and laws regarding the institutions of Bosnia and Herzegovina, is directly applicable throughout the territory of the District. Brčko also has its own Statute regulating the functions and powers of the District, its cooperation with the entities, human rights and freedoms, organization of the District, and division of powers, competences and institutions. The status of the District was secured with the adoption of the first Amendment to the BiH Constitution in 2009.

1.2.2  C  onstitutional Development and the Role of the Constitutional Court The nature of the majority of constitutional norms is characterized by a high level of abstraction and every constitutional system contains a significant number of constitutional principles. Additionally, considering that this was a new constitution with

12

1 Introduction

insufficiently developed content, the judicial activity and legal interpretation of the Constitutional Court of BiH was (and still is) very important on the road towards the establishment of elements of constitutional and legal structure. Moreover, the idea of keeping the Constitutional Court in the contemporary Bosnian federalism was developed with the aim of having an arbiter in conflicts between federal authorities and federal units (Išerić 2019, p. 2). According to the Constitution of BiH, the role of the Constitutional Court of Bosnia and Herzegovina includes, but is not limited to (1) the resolution of possible disputes between Bosnia and Herzegovina and entities and (2) alignment of entity constitutions with the state Constitution as a result of the principle of state constitution supremacy over the entity constitutions (Article VI, Constitution of BiH) (see also Sect. 2.4 on the Judicial System). The BiH Constitutional Court, just like the Constitution of BiH, refused to define the state structure, even though in its decisions it pointed at comparative experiences of federal states (Išerić 2019, p. 5). In its case-law, the Constitutional Court uses the following phrases: “complexity of constitutional structure of BiH indicates ‘sui generis’ system”; “complex constitutional structure”; “complex state structure” (Išerić 2019, p. 5). The fact that federalism or federation is not mentioned in the BiH Constitution or in the case-law of the Constitutional Court does not mean that BiH is not a federal country (Išerić 2019, p. 6). The hesitation of the Constitutional Court of BiH to clearly define the nature of internal structure may be explained by its reluctance to get instrumentalized in the political debates (Išerić 2019, p. 6). It is worth mentioning that the political sphere of Bosnia and Herzegovina is still characterized by the lack of consensus among the political elites on the nature of state structure. The judicial activity of the Constitutional Court is particularly noticeable in (1) defining constitutional principles; (2) manners in which they are implemented in the legal system of Bosnia and Herzegovina (e.g. non-discrimination principle, rule of law, constitutionality of the peoples, etc.); (3) defining the content of exclusive competences of the state; (4) pointing at exclusive competences of entities; (5) development of additional state responsibilities; (6) recognition of the existence of “joint framework or competitive responsibilities of the state and entities (Išerić 2019). The Constitutional Court of BiH determined in its case-law that the additional responsibilities concept has “three mutually independent hypotheses” according to which BiH will assume responsibilities, namely: (a) for such matters as are agreed by the entities; (b) are provided for in Annexes 5–8 to the General Framework Agreement or (c) are necessary to preserve sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina (Išerić 2019, p. 25–26). Naturally, cases referred to under items (b) and (c) do not require agreement of entities for assuming such responsibilities. Formal transfer of responsibilities is achieved by agreement between entities, which provides constitutional basis for the adoption of laws in areas that are transferred to the competence of BiH (Išerić 2019, p. 27). The federalism of Bosnia and Herzegovina has gone through its development phase from dual to cooperative federalism, and significant contribution to this development was provided for by the Constitutional Court of BiH through its decisions and the development of the constitutional case-law (Išerić 2019, p. 39). Cooperative federalism does not represent only the constitutional reshuffling of

1.2  Constitutional System, Principles and Reform

13

competences or a set of institutions and procedures, but it is also based on the “combination of coordination, cooperation, mutual responsibilities, consensus, and desirability of mutual standards across the federation” (Išerić 2019, p. 39). In its case-law, the Constitutional Court has recognized several constitutional and legal principles: constitutionality of the peoples, rule of law, democracy, social state, single market, human rights protection principle (especially non-­discrimination) (Išerić 2019, p. 6–7). But for the development of the political system, of a significant importance are (1) the principle of multi-ethnicity; (2) the principle of collective equality of constituent peoples and (3) the principle of non-­discrimination. According to the Dayton Constitution of Bosnia and Herzegovina, a new notion of “constituent peoples” (Bosniaks, Serbs and Croats) and “the Others” was introduced. While the constituent peoples are clearly defined in the constitution, “the Others” are not explicitly defined. When systematically interpreted, it can be concluded that the concept includes, on the one hand, national minorities and, on the other hand, people who are neither a member of the constituent groups nor the national minorities, e.g. persons with ethnically mixed backgrounds and those who refuse to identify themselves according to their ethnicity. Constituent peoples make up the building blocks of the state, and in this sense a distinction is made between them and “the Others”. Only constituent peoples are fully entitled to special collective rights, such as representation in institutions and veto power in decision-making processes. Until 2000, the principle of constituency was interpreted and implemented in such a way that the members of ethnic groups were constituent only in certain parts of the territory of Bosnia and Herzegovina. Meaning, Serbs were the only constituent people in the Republic Srpska, and Bosniaks and Croats were the only constituent people in the Federation of Bosnia and Herzegovina. Furthermore, the constitutional principle of constituency includes: defining some parts of Bosnia and Herzegovina exclusively through the prism of a particular ethnic group; giving primacy to the language and script of a particular group; organizing the legislative, executive and judicial authority according to the criteria of one ethnicity and financing at the entity level for the maintenance of certain elements of cultural identity for one specific ethnic group, though this principle was not applied at the state level, where members of all ethnic groups are equally represented. The primary consequence of implementation of the principle of constituency was the identification of ethnicity with territory. In the post-war period the Constitutional Court initiated the most important institutional reform of the political system through its ground-breaking decision on the constituent peoples in 2000. The initiative came from the NGO Serbian Citizen Council (Srpsko građansko vijeće). It called attention to the discrimination of Serbs in the Federation and of Bosniaks and Croats in the Republika Srpska since they were not recognized as one of the constituent peoples and therefore did not have collective rights in the constitution of the respective entity. Additionally, this initiative also encompassed the position of “the Others” at the entities level which were constitutionally excluded from the right to participate in the government. Former member of the Presidency, Alija Izetbegović, filled a request on this matter following the Court’s competence to abstract review of the constitutionality of law ­(including entities’ constitutions). The Court passed four individual judgements in

14

1 Introduction

January, February, July and August 2000. The third partial decision of 1 July 2000 is generally known as the “decision on the constituent status of peoples” (decision number U/98-III). These judgements declared that several articles of the entity constitutions were in breach of the state-level constitution. The decisions were passed by a simple majority, namely the votes of the three international and two Bosniak Constitutional Court judges. The Croat and Serb judges voted against the decisions. Thus, the judgement was only possible due to the fact that the Constitutional Court is one of the few institutions that does not make decisions by consensus, nor does it have veto mechanisms in place. The consequence of the decision on the constituency of peoples was the redefinition of the principle of constituency of peoples: according to the decision, there are three constituent ethnic groups in the entire territory of Bosnia and Herzegovina. As a precondition necessary for linguistic clarification of the standardized content regarding the notion of constituent peoples, the Constitutional Court had to answer affirmatively whether the preamble of the constitution, as such, can generally have a normative character. The Court accepted the opinion that some lines of the preamble have normative content, which is of legal relevance. In order to analyse the content of the notion “status of the constituent” the majority of members of the Constitutional Court decided to attempt to determine the meaning of this concept through systematic interpretation. Based on such methods of interpretation, the Constitutional Court derived from the constitution three general normative principles: (1) “the principle of multi-­ ethnicity”, meaning that the overall state structure of BiH corresponds to a model of multi-ethnic statehood, where territorial delimitation does not have to lead to institutional segregation and national homogenization within state institutions; (2) “the principle of collective equality of constituent peoples”, meaning that the effective political participation in decision-making processes should be reached not only through individual equality in respect to electoral rights, but also through collective ethnic representation of the three constituent peoples; (3) and the third, the rule regarding the “prohibition of discrimination” includes the prohibition of de iure discrimination, the prohibition of de facto discrimination and the prohibition of past de iure discrimination. Entities have an obligation to comply with this principle prohibiting discrimination against any member of the three constituent peoples, in particular against these constituent peoples, which are, de facto, in the position of being an ethnic minority in the respective entity. Secondly, the principle of collective equality prohibits any special privilege for any of the three ethnic constituent peoples by granting them any distinct or additional rights. The Constitutional Court faced an issue related to the tension between individual and collective rights and concluded that the total exclusion of persons from the representative system gave rise to a violation of their individual political rights. Therefore, the category of “the Others” was introduced into the representative system in order to prevent the total exclusion of individual rights. Nevertheless, even though the Court understood is as an introduction of individual political rights, the rights of “the Others” at the entity level have been implemented as collective rights of the extremely heterogenous groups (representation of 17 national minorities and ethnically unidentified citizens).

1.2  Constitutional System, Principles and Reform

15

As stated earlier, the implementation of this decision led to the following results: the inclusion of Serbs as constituent peoples in the Federation, and the inclusion of Bosniaks and Croats as constituent peoples in the RS. “The Others” were also recognized as having a right to representation in parliaments and administrative bodies. Bearing in mind the political situation in Bosnia and Herzegovina just after the adoption of the decision, it was impossible to expect the Parliament of the FBiH and the National Assembly of the RS to revise their respective constitutions. Even though there was general agreement on how the decision should be implemented, in the end it was necessary for the OHR to intervene in order to enforce the amendments to the entities’ constitutions. This decision caused the reorganization of all entity institutions and the introduction of mandatory quotas of representation in all parts of government for all three constituent ethnic groups and “the Others” in both entities. More specifically, the following has been introduced: (1) parity system in the most significant entity institutions, as well as in houses of peoples; (2) veto mechanism for constituent peoples (the vital national interest procedure) and (3) proportional representation of the constitutional peoples and “the Others” (with relation to the 1991 census until the fulfilment of Annex VII of the DPA, on Return of Refugees and Displaced Persons). In a more detailed perspective, when it comes to the entities level, the Constitution of the RS states since then that Serbs, Bosniaks and Croats, as constituent people, along with “the Others” and citizens shall participate in exercising functions and powers in the Republika Srpska (Article 1, the Constitution of the RS). The constitutional structure of the Republika Srpska is based, among other things, on the guarantee of ethnic equality and protection of vital interests of the constituent people (Article 5); the official languages of the Republic of Srpska are the language of the Serb people, the language of the Bosniak people and the language of the Croat people, while the official scripts are Cyrillic and Latin (Article 7, paragraph 1). The veto mechanism for the constituent peoples is implemented through the vital national interest process. It is guaranteed in the legislative procedure itself as laws and other regulations passed by the National Assembly concerning the vital interest of any of the constituent peoples shall be promulgated only after they have been adopted by the Council of Peoples (Article 69, paragraph 2). Actually, the term of vital national interest is defined as well as the procedure for its establishment as one of veto mechanisms (Article 70). When it comes to parity representation/guaranteed quotas, the Constitution provides for a possibility that two functions at most may be performed at the same time by a representative of one constituent people, or by a representative of Others. The RS Constitution also defines that minimum number of representatives of constituent peoples in the National Assembly is four, while the composition of the RS Council of Peoples parity-based and follows the following formula: eight representatives of Serbs, eight representatives of Bosniaks, eight representatives of Croats and four representatives of the Others (Article 71). The President has two vice presidents from different constituent peoples (Article 80). Finally, until full implementation of Annex VII of the Dayton Peace Agreement, the Government consists of eight ministers from among Serbs, five ministers from among Bosniaks

16

1 Introduction

and three ministers from among Croats (Article 92). One minister representing “the Others” may be appointed by the Prime Minister from the quota of the largest national constituency (Article 92). At the end, the constituent people and the group of the Others should be proportionally represented in the public institutions of the Republika Srpska (Article 92). Similarly, the Constitution of the Federation of BiH determines that Bosniaks, Croats and Serbs are constituent people, together with “the Others” (Amendment XXVII to the Constitution of the FBiH). Official languages are Bosnian language, Croatian language and Serbian language, while official scripts are Latin and Cyrillic (Amendment XXIX). From the total of 98 MPs in the House of Representatives of the Parliament of the Federation of Bosnia and Herzegovina, a minimum number of four MPs represents one constituent people (Amendment XXXII). The House of Peoples of the Federation Parliament is composed on a parity basis, so that each constituent people have the same number of delegates (17) and seven delegates are from among “the Others” (Amendment XXXIII). Similar to the other entity, the Constitution defines the term and procedure for the protection of the vital national interest as a veto mechanism (Amendments XXXVII–XXXIX). When it comes to the division of executive functions, the president has two vice presidents from among different constituent peoples (Amendment XLI), while in the case of the Government of the FBIH the division of functions is regulated in the following manner: eight ministers from among Bosniaks, five ministers from among Croats, three ministers from among Serbs, while one minister from among Others may be appointed by the Prime Minister from the quota of the largest national constituency (Amendment XLIV). When it comes to the distribution of the most important functions, the prime minister and deputies of the prime minister may not come from among the same constitutive peoples, while not more than two following positions may be filled by representatives of any one constituent people or of the group of “Others”: (1) Prime Minister; (2) Speaker of the House of Representatives; (3) Speaker of the House of Peoples; (4) President of the Supreme Court; (5) President of the Constitutional Court and (6) Federation Prosecutor (Amendment XLIX). Finally, the constituent peoples and the group of “Others” should be proportionally represented in the public institutions of the Federation (Amendment LII). Even though there was an obligation to have constitutions of ten Federation cantons aligned with the amended Constitution and to implement the decision of the Constitutional Court of Bosnia and Herzegovina on the constitutionality of the peoples, not all cantons aligned their constitutions.

1.2.3  F  urther Democratic and Constitutional Development? The Case-Law of the European Court of Human Rights Dervo Sejdić and Jakob Finci, both citizens of Bosnia and Herzegovina, are prominent public figures in their city of residence, Sarajevo. The first is of Roma origin and the latter is a Jew. They wanted to stand for elected office. On 10 February 2006

1.2  Constitutional System, Principles and Reform

17

and 3 January 2007, they received written confirmation from the Central Election Commission that they were ineligible to stand for election to the BiH Presidency and the House of Peoples of the BiH Parliamentary Assembly because of their ethnic origins. As already mentioned above, the Constitution of BiH reserves participation only to its constituent people. They challenged this decision before the domestic courts. The Constitutional Court of BiH delivered two decisions in March and May 2006 stating that it had no competences to decide wheatear any constitutional provisions or laws under them conformed with the European Convention on Human Rights. Applications were than submitted to the European Court of Human Rights in 2006.4 The applicants argued that, despite possessing experience comparable to that of the highest elected officials, the BiH Constitution and the corresponding provisions of the Election Law of 2001 prevented them from campaigning for the Presidency and the House of Peoples solely on the ground of their ethnic origin. They relied on Articles 3 (the prohibition of inhuman and degrading treatment), 13 (the right to an effective remedy) and 14 (the prohibition of discrimination) of the European Convention on Human Rights, Article 3 of Protocol No. 1 (right to free elections) and Article 1 of Protocol No. 12 (general prohibition of discrimination) to the Convention. Their complaints were lodged with the European Court of Human Rights on 3 July and 18 August 2006, respectively. The Court acknowledged that this system—established at a time when all parties involved in a far-reaching interethnic conflict had accepted a fragile ceasefire—pursued the legitimate aim of restoring peace. It noted, however, that the situation in Bosnia and Herzegovina had improved considerably since the Dayton Peace Agreement. The Court recognized recent progress, noting that Bosnia and Herzegovina amended its constitution for the first time in 2009, and that it had recently been elected a member of the United Nations Security Council for a 2-year term. Nonetheless, the Court agreed with the government that the time was perhaps still not ripe for a political system that abandoned the power-sharing mechanism in place and would be a simple reflection of majority rule. As the Venice Commission had clearly demonstrated in its opinion of 11 March 2005 (Venice Commission 2005), however, there existed mechanisms for power sharing that did not automatically lead to the total exclusion of representatives of the communities that were not among the constituent peoples. Furthermore, when it joined the Council of Europe in 2002, Bosnia and Herzegovina undertook to review the electoral legislation within 1 year, and it ratified the Convention and the Protocols thereto without reservations. By ratifying a Stabilization and Association Agreement (SAA) with the European Union in 2008, it had committed to amending electoral legislation regarding members of the BiH Presidency and the delegates of the House of Peoples to ensure full compliance with the European Convention on Human Rights and the Council of Europe’s post-accession commitments within one to 2 years. 4  Decisions to all cases mentioned in this chapter are available at the dana base of the European Court for Human Rights, at the following link: https://echr.coe.int/Pages/home.aspx?p=caselaw/ HUDOC&c=.

18

1 Introduction

In consequence, the European Court for Human Rights concluded by 14 votes to 3 that the applicants’ continued ineligibility to stand for election to the House of Peoples lacked an objective and reasonable justification and had therefore breached Article 14 in conjunction with Article 3 of Protocol No. 1. The Committee of Ministers of the Council of Europe, in its supervisory function adopted three interim resolutions concerning the implementation of Sjedić and Finci vs. Bosnia and Herzegovina judgment (see also case Zornić v. Bosnia and Herzegovina). It urged the authorities of Bosnia and Herzegovina to take all the necessary steps for the full execution of that judgment by adopting required measures aimed at eliminating discrimination against those who are not affiliated with a constituent people in standing for election to the House of Peoples and the Presidency and to bring its (1) constitution and (2) electoral legislation in conformity with the Convention requirements (par. 12). The international community, civil society organizations and political parties have made different proposals for the implementation of the Sejdić--Finci case. None of these proposals found support in the BiH Parliamentary Assembly, and elections in October 2010, 2014 and 2018 took place with the discriminatory rules still in place. Further, the abolishment of ethnic discrimination within the political system cannot stop with only the implementation of this case and changing the electoral rules for the Presidency and House of Peoples. BiH needs systematic reforms that will abolish the discrimination found in other institutions on the state, entity, cantonal and local level. In July 2014 the European Court for Human Rights delivered another judgement in the case Azra Zornić vs. Bosnia and Herzegovina (No. 3681/06). The applicant complained about her ineligibility to stand for election the House of Peoples and the Presidency of Bosnia and Herzegovina because she does not declare affiliation with any of the “constituents people”. She self-identifies simply as a citizen of Bosnia and Herzegovina. The Court decided that there has been a violation of Article 14 of the Convention (taken in conjunction with Article 3 Protocol No 1) and a violation of Article 1 of Protocol No 12 as regards the applicant’s ineligibility to stand for election to the House of Peoples. Also, the Court decided that there has been a violation of Article 1 of Protocol No 12 as regards the applicant’s ineligibility to stand for election to the Presidency. Similarly, to the previous cases, in July 2016 the European Court for Human Rights delivered a judgment in the case Šlaku v. Bosnia and Herzegovina (No. 56666/12). Mr. Samir Šlaku, belongs to BiH’s Albanian ethnic minority and actively participates in the social and political life of the country. The applicant complained to his ineligibility to stand for election to the House of Peoples and the Presidency because he does not belong to any of the “constituent people”. As in the above-mentioned cases, the Court had found that there has been a violation of the Convention and the Protocols. In July 2016 the Court delivered another, but content related different judgement in the case Ilijaz Pilav vs. Bosnia and Herzegovina (No. 41939/07). The applicant, Ilijaz Pilav, took issue, with the legal impossibility for him either to stand for election to the Presidency or to vote to vote for a member of his own community to this office. The applicant declares himself as Bosniak (one of the country’s constituent

1.3 Human Rights

19

people). In 2006, as a candidate of the BH Party, the applicant submitted his candidacy for the 2006 elections to the Presidency. On 24 July 2006 the Central Election Commission of Bosnia and Herzegovina rejected his candidacy. It explained that the applicant could not be elected to the Presidency from the territory of the Republika Srpska considering he declared affiliation with Bosniaks. According to the Constitution and Election Act the presidential candidate from that Entity must be a Serb. On September 2006 the BH Party and the applicant logged a constitutional appeal relying on Article 1 of Protocol No. 12 to the Convention. The Constitutional Court of BiH held that there had been no violation of that provision (decision No. AP 2678/06). Ilijaz Pilav logged an application before the ECHR and relied on article 1 of Protocol 12. He submitted that in a multi-ethnic state such as Bosnia and Herzegovina it could be considered legitimate to ensure that a State body reflects the multi-ethnic character of the society. The problems were however the way in which the territorial and ethnic principles were combined. The applicant was faced with two options: (1) to move to the Federation of Bosnia and Herzegovina thereby giving the possibility to serve his community in the Republika Srpska or (2) to accept a status of second-­ class citizen. The applicant further submitted that the complete exclusion of all Bosniaks living in the Republika Srpska from the opportunity to stand for election for the Presidency constituted a complete impairment of the “very essence” of the right to do so as the very essence of that right was inclusion. In the Court findings Ilijaz Pilav, unlike the Dervo Sjedić, Jakob Finci and Azra Zornić, belongs to one of the “constituent people” and has a constitutional right to participate in elections to the Presidency. However, in order to effectively exercise this right he is required to leave his home and move to the Federation of Bosnia and Herzegovina. Theoretically, Ilijaz Pilav is eligible to stand for election, but in reality, as long as he lives in the Republika Srpska he cannot use this right. The Presidency is a political body of the State and not of the Entities; its policy and decision affect all citizens. Although Pilav is involved in political life in the Republika Srpska, he is also clearly concerned with the political life of the collective Head of State. According to the Court, the applicant is excluded from election to the Presidency as a result of residence requirement. The Court considered that this exclusion is based on a combination of ethnic origin and place of residence, both serving grounds of distinction falling within the scope Article 1 of Protocol No. 12 and decided that there has been a violation.

1.3  Human Rights In the constitutional and legal system of Bosnia and Herzegovina special attention is paid to the position of human rights. This can primarily be noticed throughout constitutionalizing of the individual and collective rights in the Constitution of Bosnia and Herzegovina, Annex I to the Constitution (which contains 15 international declarations and conventions on human rights), throughout constitutionalizing of human

20

1 Introduction

rights and freedoms in the constitutions of the entities; special position of the European Convention on Human Rights and additional protocols that have priority over national laws; the possibility of filing individual actions on violation of human rights and freedoms before the Constitutional Court of Bosnia and Herzegovina, filing individual actions before the European Court of Human Rights, as well as the establishment of the Institution of Human Rights Ombudsman of Bosnia and Herzegovina (Ombudsman) with the primary aim to promote the rule of law, to protect natural and legal persons, and especially to ban discrimination regulated by the Law on Prohibition of Discrimination (2009). There are numerous civil society organizations which deal with human rights issues, both collective and individual. But, we shall focus our attention on the institution which has a mandate to observe and to record human rights protection in Bosnia and Herzegovina. The Ombudsman Institution is an independent institution which gives a systematic overview in development and protection of mostly individual rights and the principle of non-discrimination. Today, the National Ombudsman Institution has taken over the entity Ombudsman Offices which existed in the post-war period. It handles complaints related to poor functioning or to human rights violations committed by any organ of Bosnia and Herzegovina, its entities and District Brčko. The cases are opened upon individual complaints or ex officio. It determines violations of rights, issues recommendation to competent state organs to undertake measures to restore human rights violations, but also provides assistance to citizens how to use the most adequate remedies or advises them which institution to address. Moreover here, the Institution cannot change decisions of public authorities neither take over the role of appeal organs. Apart from the recommendation that are not legally binding, the Ombudsman submits annual reports on the status of human rights and special reports on the status of human rights of certain groups (e.g. rights of persons with disabilities or rights and freedoms of LGBT persons). According to the most recent 2018 Annual Report on the results of the activities of Ombudsman Institution, the most frequent reasons the citizens addressed the Ombudsman were: (1) high unemployment rate; (2) lack of trust in the authorities, lack of transparency in their work and information about it. The largest number of complaints related to the work of courts and the length of the court proceedings, which indicates to obligation of the authorities to organize the judicial system in more efficient manner. There are still cases that the responsible administrative bodies ignore the instruction of the courts and the court decisions rendered in administrative proceedings. Particularly concerning is the fact that the courts avoid rendering the meritorious decisions in administrative disputes, but return the cases to the administrative bodies for renewed procedure (Ombudsman Institution 2019, p. 8). According to the statistics of the Ombudsman Institution’s Department for the Protection of Economic, Social and Cultural rights, citizens complains relate to: (1) irregularities in public competitions, (2) non-payment of contributions for health and pension insurance by the employers, (3) illegal cancellation of work contracts, (4) slowness of the relevant authorities in proceedings for the enjoyment of the labour related rights, as well as pension and health care rights, (5) impossibility to

1.3  Human Rights

21

exercise right to health care, (6) housing issues and (7) provision of communal services (Ombudsman Institution 2019, p. 8). As for the rights of people with disabilities, there is still a problem of recognition and determination of disability, access to health care, accessibility of spaces, use of public transportation, services and communication of unadjusted persons with disabilities. Also, the Ombudsman Institution has recognized a serious problem regarding the (in)ability to exercise the rights of persons with intellectual and mental disabilities, especially when their legal capacity is stripped off and when they are placed in institutions with restricted freedom of movement. The European Court of Human Rights in the case Hadžimejlić and others v. Bosnia and Herzegovina held that the rights of persons whose legal capacity was stripped away and who were placed in social care institutions were violated. Even though individual measures under this judgment were taken, it is important to implement systematic solutions and amend legal regulations (Ombudsman Institution 2019, p. 8). The Ombudsman Institution repeated the concerns from previous years concerning the criminal sanctions execution system which is particularly complex in Bosnia and Herzegovina, as the mandate is spread out over the state level, the entity level and the level of Brčko District. This results in the existence of different legal norms governing the same area in different ways, which leads to unequal treatment of the convicted persons, depending on the court that convicted them, the part of BiH they were convicted in, or the entity in which they serve their sentence (Ombudsman Institution 2019, p. 9). In the area of discrimination, the highest number of complaints (60) refers to harassment, followed by 11 complaints of discrimination based on national or social origin, in addition to 9 complaints of discrimination based on membership in a trade union or other association, 7 complaints of discrimination based on the age, 6 complaints of discrimination based on religion and finally 5 complaints of discrimination based on ethnicity. The number of complaints received in the Institution does not reflect the real situation in the society because a significant number of citizens decide not to initiate proceedings before the Ombudsman or seek judicial protection from fear of being fired or facing other consequences. Number of complaints of inappropriate content of statuses on the social networks and web portals comprising elements of hate speech, discrimination based on gender or harassment is also increasing. Sanctioning of those who violate the rights of others using the information-­communication technologies has not been fully resolved (Ombudsman Institution 2019, p. 10). Another issue is the lack of provision of adequate material and psychological assistance to women victims of domestic violence, which would help them overcome their situation, and which often results in their return to the violent environment, withdrawal of their complaints, and refusal to testify in the proceedings (Ombudsman Institution 2019, p. 10). Overall, in 2018, the Ombudsman Institution registered 3266 citizens’ complaints. Compared to 2017, this is an increase by 106 complaints. During the reporting period, 13,130 citizens contacted the Ombudsman (direct or phone contacts, electronic mail and written complaints). Together with cases carried forward from

22 Table 1.2  Number of registered discrimination cases per year

1 Introduction 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019

156 135 191 257 198 230 159 152 174 208 N/A

Source: annual reports from web page of the Ombudsman institution

the previous year, 5303 complaints were received in total, while 3240 cases were completed. The majority of complaints were related to: violations of civil and political rights—1819; violation of economic, social and cultural rights—825; violations of rights of the child—216; all forms of discrimination—208; rights of prisoners and detainees—144; rights of persons with disabilities—46, and violation of the rights of religious and other minorities—8 (Ombudsman Institution 2019, p.  8) (Table 1.2). According to the assessment report on the work of bh. institutions in combating discrimination provided by the OSCE Mission to Bosnia and Herzegovina in March 2019, above-mentioned data signals a few notable positive developments (OSCE 2019b, p. 37). Not only was there a significant increase in the number of discrimination complaints submitted to the Institution in 2012 and 2014, but the Institution has also noted that in recent years, these complaints included better justifications. Moreover here, applicants increasingly address the Ombudsman Institution through an intermediary and the Ombudsman recommendations are being increasingly used as evidence during court proceedings. However, out of the total number of complaints received by the Ombudsman, only 5.7% were discrimination-related cases (OSCE 2019b, p. 37). It is worth mentioning that in implementing issued recommendations”. Meaning, that implementing issued recommendations remains a problem in the system. In general, only one-third of the overall number of issued recommendations is being implemented by respondent parties (OSCE 2019b, p. 43). Moreover here, discrimination through ethnic segregation is especially visible in BiH’s education system, where the so-called two school under one roof continue to segregate children by ethnicity in 56 (OSCE 2018b, p. 15). In these schools, children of different ethnicities are physically separated from each other and learn from different curricula. Final and binding decision of the FBiH Constitutional Court from 2014 which found there was discrimination and ordered the Herzegovina-­ Neretva Canton to establish unified, integrated and multicultural schools has not been implemented yet (OSCE 2018b, p. 5). Discriminatory practices in the education sector are also evidenced through the situation surrounding Bosniak student in

1.3  Human Rights

23

Republika Srpka, who are not offered the right to call their language “Bosnian” even though this right has been confirmed by the BiH Constitutional Court (OSCE 2019b, p.  15). Social exclusion and discrimination against Roma, BiH’s largest national minority remains widespread particularly in housing, employment, education and health services (OSCE 2019b, p. 15). There has been a low enrolment rate of Roma in secondary schools and universities, with a high dropout rate among Roma children beginning around the fifth grade of primary school. Additionally, Roma women are often victims of multiple forms of discrimination, while many Roma are left outside of the health protection system, due to lack of understanding of the necessary administrative procedures required for their inclusion (OSCE 2019b, p. 16). Violence against women, and especially domestic violence, is one of the major issues in the Bosnian-Herzegovinian contemporary society. According to OSCE-led survey report on violence against women, the issue of violence against women is a fairly widespread concern in BiH (OSCE 2019a, p. iii). Ca. half (48%) of women in BiH have experience some form of abuse, including intimate partner violence, non-­ partner violence, stalking and sexual harassment, since the age of 15. More specifically, nearly four in ten (38%) say they have experienced psychological, physical or sexual violence since the age of 15 at the hands of a partner or non-partner. Even all of the figures from the survey are lower than the average reported across the EU, though cultural norms should be taken into account when considering this (OSCE 2019a, p. iii). This means, women in countries with a longer tradition of raising awareness of gender equality are more open to talk about violence. Additionally, the qualitative research shows that certain types of intimate partner violence are still seen as normal in BiH. Women feel that they live in a society that places high expectations on women to be good mothers, wives and homeworkers, as well as employees. Patriarchal norms continue to exist, with a majority of women (59%) believing that most of their friends would agree that a good wife should obey her husband even if she disagrees. Such attitudes appear changing and differ among various groups of women: younger women are much less likely to agree with this view, as well as are women who reached tertiary education or are in paid employment. Despite different attitudes towards the role of women in society, violence against women affect them across all categories of age, income and geography. Additionally, overall 64% of women can be considered to be directly affected by conflict (1992–1995), whereas the great majority of women experienced the conflict. Moreover, 84% of women do not report violence to the police. As the qualitative research showed, there is distrust in institutions and the interviewed experts stressed that more emphasis should be put on raising awareness of sexual violence in intimate partner relationships (OSCE 2019a, p. v). To conclude, women in BiH continue to face marginalization in all spheres of life: they are unequally represented in politics for political, socio-economic and cultural reasons including gender stereotypes (OSCE 2019b, p. 16). Even though Gender Equality Law requires all institutions to comprise at least 40% of the less represented sex, women still remain underrepresented in state, entity, cantonal and district governments (OSCE 2019b, p. 17). LGBT persons face discrimination in

24

1 Introduction

numerous fields, including employment, education, housing and health care. According to CSOs, discrimination on the grounds of sexual orientation, gender identity and sexual characteristics is most prevalent in the employment sector, as well as in accessing goods and services (OSCE 2019b, p. 18). Persons with disabilities face discrimination in accessing education, employment, social protection and health care. The failure to implement relevant regulations contributes to the exclusion of children and young people with disabilities from the educational system. Most public buildings and institutions, as well as public transport infrastructure remain inaccessible to persons with disabilities (OSCE 2019b, p. 18).

Chapter 2

Institutions

In this chapter we will present the three central state-level institutions: the collective Head of State, the BiH Government and the bicameral BiH Parliamentary Assembly. In each sub-chapter we will provide a short historic background to the founding and development of the institution, providing some context to the complexity to its current structure, and afterwards explain how the institutions are elected or appointed, internally organized, what type of decisions are taken and how those decisions are being taken. Finally, for each of the three institutions we will aim to present practical examples which illustrate their performance but also challenges in their functioning. The last part of the chapter relates to the judicial system and presents an introduction to the complex network of different institutions which exist on state and lower levels of governance.

2.1  Collective Head of the State: State Presidency The Presidency (Predsjedništvo) of Bosnia and Herzegovina represents the collective head of the complex state. The current Presidency continues a Yugoslavian tradition, given the fact that collective presidencies were introduced at the federal level in Yugoslavia in 1971, and in the Socialist Republic of Bosnia and Herzegovina in 1974 (Bieber 2008a, p.  62; Pejanović 2005, p.  67). During Yugoslavia, the Bosnian-­Herzegovinian republic presidency rotated between nine members that were elected by parliament. Direct elections were not introduced until 1990, when the Presidency was reduced to seven members: two representatives each of Serbs, Croats, and Muslims (the name given to Bosniaks until 1993) and one representative of the other ethnic groups or those citizens that did not declare their ethnicity. After the first multi-party elections in 1990 all Presidency members were coming If not differently stated, all data and information that relate to the Presidency, Parliamentary Assembly and Council of Ministers are taken from the official web pages of the three institutions. Links to the web pages are available in the bibliography. © Springer Nature Switzerland AG 2021 D. Banović et al., The Political System of Bosnia and Herzegovina, https://doi.org/10.1007/978-3-030-54387-7_2

25

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2 Institutions

from the three, core national political parties: Fikret Abdić and Alija Izetbegović (Muslims, SDA), Nikola Koljević and Biljana Plavšić (Serbs, SDS), Stjepan Kljuić and Franjo Boras (Croats, HDZ), and Ejup Ganić (Others, SDA). The Presidency composition will change during the war years, as the two Serbian members and Franjo Boras would resign. Fikret Abdić was dismissed because of unconstitutional activities related to the 1993 establishment of the “Autonomous Province Western Bosnia”. Today’s collective Presidency, outlined in the Dayton constitution, is therefore not an innovation of the peace negotiation under US mediation, but an institution rooted in Yugoslav tradition. Since 1995, the Presidency has been an executive body consisting of one Bosniak, one Croat and one Serb. In addition to the usual parity of the three ethnic groups the election of the Presidency also has a territorial component outlined in the election rules. The eligible voters (citizens over the age of 18) in the Federation of Bosnia and Herzegovina directly elect one Bosniak and one Croat, while voters in the Republika Srpska vote for the Serbian member (Art V, Constitution of BiH). An overview of Presidency members since 1996 can be found in the table below. Serbs from the Federation of Bosnia and Herzegovina, and Croats and Bosniaks from the Republika Srpska, as well as all other citizens that do not belong to one of the three largest ethnic groups (the Others, Ostali), do not have a passive electoral right and are excluded from the highest executive body (Bieber 2008a, p.  62). December 2019 marked the tenth anniversary of the Sejdić and Finci judgement of the European Court for Human Rights, in which this arrangement has been assessed as discriminatory and not in line with the European Convention for Human Rights. This judgement was followed by judgements in the Zornić, Šlaku and Pilav cases, in which the Court stated that in order to implement these judgements, Bosnia and Herzegovina would have to introduce constitutional and legislation amendments, ensuring every citizen passive and active voting rights (see Chap. 1) (Table 2.1). The election procedure consists of a number of specific characteristics (Marković 2011, pp.  253–278). For example, the Serbian Presidency member is not elected only by the Serbian majority population in the Republika Srpska. Bosniaks and Croats (and other citizens) that are registered in that entity also have a say. In the circumstance of narrow election results, which has been the case in 2014 when Mladen Ivanić became Presidency member with only 8 thousand vote difference to the second-best candidate, Bosniak and Croat votes can be very important. As in the Republika Srpska, the citizens of the Federation have only one vote each, so they can decide to vote for a Bosniak or Croat candidate, independent of their own ethnic identity. The implications of this arrangement for the election of the Bosniak candidate are not very high. However, because Bosniaks make with 70% the majority of the population in the Federation, they can easily “outvote” ethnic Croats by nominating and voting for their “own” Croat candidate. It was in this manner, on the back of moderate Bosniak voters, that the Croat candidate of the Social Democratic Party, Željko Komšić, won the 2006 and 2010 presidential elections. The same situation was repeated in 2018, when Željko Komšić was re-elected, this time as a candidate

2.1  Collective Head of the State: State Presidency

27

Table 2.1  Members of the Presidency since 1996 Period 1996–1998 1998–2002

2002–2006

Bosniak member Alija Izetbegović, SDA Alija Izetbegović, SDA (until 10/2000); Halid Genjac, SDA (10/2000–03/2001); Beriz Belkić, SBiH (since 03/2001) Sulejman Tihić, SDA

2006–2010 2010–2014 2014–2018

Haris Silajdžić, SBiH Bakir Izetbegović, SDA Bakir Izetbegović, SDA

Since 2018

Šefik Džaferović, SDA

Serbian member Momčilo Krajišnik, SDS Živko Radišić, Coalition Sloga/SPRS

Croat member Krešimir Zubak, HDZ Ante Jelavić, HDZ (until 03/2001); Jozo Križanović, SDP (since 03/2001)

Mirko Šarović, SDS (until 04/2003); Borislav Paravac, SDS (since 4/2003) Nebojša Radmanović, SNSD Nebojša Radmanović, SNSD Mladen Ivanić, Coalition Union for Change/PDP Milorad Dodik, SNSD

Dragan Čović, HDZ (until 03/2005); Ivo Miro Jović, HDZ (since 03/2005) Željko Komšić, SDP Željko Komšić, SDP Dragan Čović, HDZ Željko Komšić, DF

Source: Web pages of the Presidency and the Central Election Commission, see reference in the bibliography

of the Democratic Front political party. This shows that the interests of Croats are not represented as well as those of the other two groups (Gromes 2007, p. 161). Overall, candidates from nationalistic and moderate nationalistic parties have dominated the elections (see classification of political parties in Chap. 4). It is also important to note, that during the entire post-Dayton period, there has not been a single woman elected to the Presidency with only few of them running for this post (Gavrić and Zagorac 2015). The members of the Presidency are elected for a period of four years (the first post-war election in 1996 limited the term to 2 years) and can be re-elected for a second term in office. After that they are unable to take over a new mandate for the next four years (Art. V, Constitution of BiH). Until now, only one Presidency member, above-mentioned Željko Komšić, has been re-elected for a third term. The Rules of Procedure of the Presidency explain that the three Presidency members will elect the first member to stand as Chair, a function that will rotate between the three members every eight months throughout the duration of their four-year mandate. This strengthens the collective character of the body. Once a member of the Presidency is elected, there is no democratic way to remove her/him from office before the four-year term expires. However, the High Representative has removed members of the Presidency by using his Bonn Powers, the last being Croat member and HDZ leader Dragan Čović in 2005, accused for abuse of power and position. The powers of the Presidency speak to a combination of the elements of a parliamentary and presidential political system (Sahadžić 2011). In addition to the usual representative responsibilities, the office also comes with important political duties.

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2 Institutions

The most important are (Art. V Par. 3, Art. V Par. 4, Constitution of BiH; Rules of Procedure of the Presidency of BiH 2002): –– Conducting the entire foreign policy of Bosnia and Herzegovina (et.al. appointing ambassadors and other international representatives; deciding on the foreign policy course; representing the country in international and European organizations and institutions; arranging international agreements, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties); –– Nominating the Chair of the Council of Ministers (who shall take office upon the approval of the House of Representatives of the Parliamentary Assembly); –– Proposing (upon the recommendation of the Council of Ministers) an annual budget to the Parliamentary Assembly, but also other legislation; –– Civilian commanding of the armed forces (until the unification of the armed forces the Presidency had authority over the two separate entity armed forces) and –– Appointing five members to the Governing Board of the Central Bank of Bosnia and Herzegovina and of the Commission for the Protection of National Monuments. All members of the Presidency have, ex officio, the right to submit petitions to the BiH Constitutional Court. The court has been a strong political and legal mechanism, especially regarding important decisions such as the decision on constituent peoples from July 2000, initiated by the Presidency member Alija Izetbegović in 1998 (see more on the decision in Chap. 1). Based on this court decision, the entire political setup in the Republika Srpska and Federation has been amended (see details in the Chap. 3). Other decisions, like the one on the Day of the Republika Srpska in 2015 (Radio Free Europe/Radio Liberty 09.01.2018), will highlight continuous political divisions among political elites of the three majority ethnic groups, and members of the current Presidency composition will continue to use their right to submit petitions which might be in favour of their political agenda. The Presidency may also dismiss the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, in the case of a change in parliamentary majorities on entity level. So far, this strong political instrument has not been used. In principle, the Presidency should meet twice per month and make decisions based on consensus (Savić 2003, p. 23). However, if one of the members is overruled, s/he may declare the decision destructive for the vital interest of the entity from which s/he was elected, and it will be given to an authorized entity body for final revision. If the declaration was made the by the member from the Republika Srpska, the Presidency decision will be given to the National Assembly of the Republika Srpska for confirmation. If a Bosniak or Croat member made the declaration, the respective Bosniak or Croat delegates of the House of Peoples of the Federation of Bosnia and Herzegovina will make the decision. If a veto about vital interests is confirmed by a two-thirds majority of the entity body within ten days of the referral, the decision shall not take effect (Art. V Par. 2, Constitution of BiH). Members of the Presidency have regularly exercised this right, but did not always receive the support of the entity body in charge. Support in some cases was

2.1  Collective Head of the State: State Presidency

29

depending if the Presidency member was coming from the same political party of coalition which would hold the majority in the responsible entity body. For example, in the case of the veto of Presidency member Haris Silajdžić in 2008 on the ratification of the agreement between Bosnia and Herzegovina and the Serbian Orthodox Church, the Bosniak delegates in the House of Peoples of the Federation of BiH did not provide him with the needed support. Interestingly, since the elections in 2010, the vital interests veto has been used only once, in 2019, by the Serbian Presidency member Milorad Dodik (as per data provided to the author by the Presidency Press Office on 20.02.2020). This does not imply that the Presidency composition for 2010–2014 and 2014–2018 was governing in harmony, but more than that there was a silent agreement that nothing will be put on the agenda as long there is no full agreement of all three members. As the exclusive leaders of the country’s foreign policy, the Presidency members continuously have demonstrated disagreement and different visions. In some occasion, like at the voting in the UN General Assembly on the status of Palestine, the country took a neutral position because of the disagreement. The adoption of the so-called Reform Plan of Bosnia and Herzegovina in December 2019, which relates to the further association of Bosnia and Herzegovina into NATO, is one more example of the divide in the country’s foreign policy. The nature of the Reform Plan has been differently understood and presented by the three members of the Presidency. While according to Dodik this is just a defence reform document, for the other two members the documents represent a NATO Membership Action Plan (Balkan Insight, 21.12.2019). Overall, daily work of the Presidency has been continuously difficult. The limited institutional infrastructure, the fact that the Serbian member had his office built in Pale (the war-time capital of the Republika Srpska) rather than in Sarajevo (Gligorić 2002), and the incompatibility of the politics of the three main nationalistic parties (SDA, HDZ and SDS; Gromes 2018, pp. 68–70), from which the first Presidency members were elected, have resulted in constant obstructions. The election of more moderate members in the 2000s helped to initiate productive work aimed at improving the Presidency as an institution. Today, each member of the Presidency has an advisory team of up to eleven members, chaired by the Chief of Cabinet. Interestingly, in the current composition, well-known film director Emir Kusturica or the president of the Liberal-Democratic Party of Serbia, Čedomir Jovanović, are among the Presidency advisors of Milorad Dodik and Željko Komšić. The Serb Presidency members maintain offices in Banja Luka or East Sarajevo, while Dragan Čović used to have an additional office in Mostar. The Secretariat of the BiH Presidency was established through the New  York Declaration, adopted in December 1999 by the, at that time three Presidency members, following indications that the infrastructure and logistics of the Presidency needed to be improved. The Secretariat was, at first, to have fifteen officials, but the number gradually increased in accordance with the institution’s needs. At the head of the Secretariat is the General Secretary of the BiH Presidency, who acts together with her/his two deputies. The Secretariat is organized in units, in charge for normative-­legal issues, economic-financial issues, public procurement and logis-

30

2 Institutions

tics, protocol, common services and public relations. Surprisingly, according to the Rules of Procedure of the Presidency, each of the three majority ethnic groups needs to be represented with min. 25% among Secretariat’s staff. Like all other institutions at the state level, the functionality of the Presidency depends greatly on the general political climate and the relations between the main political parties of the three ethnic groups. The current composition is confirming the different visions among political elites. The above-mentioned Sejdić–Finci ruling re-opened the debate for the need of constitutional reforms, including the reform of the overall constitutional role and position of the Presidency. As mentioned previously, the constitutional reform package from April 2006 planned to limit the powers of the head of state, shifting towards a more parliamentary political system. This is a very important step considering that the system in place at present is ridden with blockade and veto mechanisms, and that a strong head of state is unusual in a consensus democracy. One solution is the abrogation of the collective Presidency and the introduction of an indirectly elected president by the Parliamentary Assembly, with limited authority. Some political parties submitted reform models, which would keep the three-member composition, but would just remove obligatory ethnic representation. Another more radical reform proposal has been made in 2013 by the civil society Coalition Equality (Jednakost), by which the Presidency would be abolished, introducing a fully parliamentary political system and concentrating the competences of the executive power at the Council of Ministers. This model has been inspired by the political system of Switzerland in which the federal government also exercises the role of the head of state (Gavrić 2013, pp. 75–92). Even though there was an ad-hoc parliamentary committee on the implementation of the Sejdić–Finci case established in 2011, none of the above-mentioned models entered parliamentary procedure or was voted on in the Parliamentary Assembly, keeping the discussion on the reform of the Presidency outside the legislature, among party elites and without broader social debate.

2.2  Parliament: Parliamentary Assembly Bosnia and Herzegovina does not have a long parliamentary tradition. The first predecessor of a parliamentary structure was embodied in the Assembly (Sabor), established in 1910 under Austro-Hungarian rule. According to the Statute (Zemaljski štatut), the Assembly of 92 members could consult and draft laws, but was not allowed to adopt legislation. This right was reserved for the central administration in Vienna. Due to the fixed quota system, it was guaranteed that official representatives of the four religious’ communities (of Catholic, Orthodox, Islamic and Jewish affiliation) and ex officio associates were included in the parliament (Kasapović 2005, p. 97; Vrankić 1998, p. 44f.). Basing the constitutional and electoral setup on ethnicity/religion will have long term effects on the social ­developments in the country (Džihić 2018, p. 91). During the period of the Kingdom of Serbs, Croats and Slovenes, which later became the Kingdom of Yugoslavia, Bosnia and

2.2  Parliament: Parliamentary Assembly

31

Herzegovina did not form a uniform administration unit and hence did not have its own parliament. A continuous parliamentary tradition was not introduced until the foundation of Socialist Yugoslavia. From 1945 on, Yugoslavia had piloted different representation models, with direct or indirect elections of the members of parliaments. As an illustration, after the adoption of the new republic’s constitution in 1963, a complex five chamber representation model had been introduced: Republic’s Council, Economic Council, Educational-Cultural Council, Social-Health Council and Organizational-Political Council, which later on will be amended and changed (Radušić et.al. 2010, pp. 55–68). It is important to note that the entire institutional setup had been fully dominated by the Yugoslav Communist Party and major decision had been taken outside the parliament. Political pluralisms in its todays form were not existent. This weakness of the parliamentary structures and political culture will continue to be present also in post-Yugoslav Bosnia and Herzegovina and it is important for the understanding of the developments in the last two decades. In 1990, still as part of Yugoslavia, with the first multi-party elections, a two-­ chamber parliament of the republic was established, consisting of a Citizen’s Council (130 delegates) and a Municipal Council (110 delegates) (Bieber 2008a, p. 30). One representative was elected from each local self-government unit to the Municipal Council, ensuring a balanced representation of the interests of municipalities and cities. According to the electoral legislation, the Citizen’s Council should reflect the ethnic balance from the population census in 1981, with a degree of flexibility of plus/minus 15%. The first elections, at which 15 political parties and coalitions took part, resulted with a clear majority of the three newly created national political parties (SDA, SDS and HDZ), receiving 84% of MP seats in the two chambers (Radušić et.al. 2010, pp. 69–78). Following the start of the war and the foundation of the Assembly of the Serbian people in Bosnia and Herzegovina in 1991 (the predecessor of the RS National Assembly), the majority of Serbian MPs abandoned the parliament and regular parliamentary work was not possible until 1996. The Presidency, in line with the constitutional provisions, took over the law-making function of the parliament, approving regulations (uredbe) with legislative effects. The Parliament met only 19 times during war-time and before the election of parliament in line with the provision from the Dayton constitution (Radušić et.al. 2010, pp. 69–78). After the 1992–1995 war, the two-chamber structure was changed. The Constitution from the DPA entailed neither a municipal, nor a citizen’s council for the parliament, the so-called Parliamentary Assembly (PA BiH, Parlamentarna skupština). Instead, the House of Representatives (Predstavnički/Zastupnički dom) and the House of Peoples (Dom naroda) were established, with only 57 MPs in both chambers, forming one of the smallest parliaments in today’s Europe (compared to the population and territory size). The 42 representatives of the House of Representatives are directly elected, two-­ thirds in the Federation, and one-third in the Republika Srpska (Art. IV Par. 1, Constitution of BiH). The number of mandates is not defined by ethnic criteria, but is divided between the two entities on a territorial basis. Each entity is then sub-­ divided into smaller electoral districts. Mandates are allocated according to the pro-

32

2 Institutions

portional representation formula per Sainte-Laguë method, with the application of so-called compensation seats as a corrective. The Chap. 5.1 contains a table on the representation of political parties in the House of Representatives. The House of Peoples consists of fifteen indirectly elected members: five Bosniak, five Croat and five Serb delegates. While the five Serbian delegates are elected by the National Assembly of the Republika Srpska, the Bosniak and Croat members are elected by the Bosniak and Croat members’ delegates of the House of the Peoples of the Federation (Art. IV Par. 1, Constitution of BiH). Thus, the formation and election of the two chambers are based on the principle of parity, namely the parity of the entities (1/3 from RS, 2/3 from FBiH, in both chambers) and peoples (in the House of Peoples). Similar to the Presidency elections, the election for the House of Peoples excludes Serbs in the Federation, and Croats and Bosniaks in the Republika Srpska, as well as all Others in both entities. Moreover, Croat and Bosniak delegates are exclusively elected to the House of Peoples by Croats or Bosniaks, which prohibits Serbian and any other delegates in the House of Peoples of the Federation from actively participating in their election. However, in the Republika Srpska all members of the National Assembly appoint the five Serbian members of the state-level House of Peoples. The competences of the PA BiH are vaguely defined in the Constitution. This constitutional gap has been filled by the two chambers through the adoption of their Rules of Procedures. The main functions comprise the following: adoption of constitutional amendments and legislation, ratification of international treaties, approval and execution of the state budget, the appointment and oversight of the Council of Ministers, and the appointment of different independent institutions (Marković and Sahadžić 2013, p. 47). The House of Representatives is required to meet, at the latest, thirty days after the official announcement of the election results. The most senior representative leads the first, constitutional session. The representatives elect a Chair from among their members, who must not belong to the same ethnic group as the Chair of the Presidency or the future Chair of the Councils of Ministers. The Chair of the House of Representatives and the two Deputies (who rotate the chairpersonship every eight months) form the “Collegium” of the House, which is in charge of the following tasks (according to Art. 4 of the Rules of Procedure of the HoP): the call for, preparation, and heading of the chamber’s regular and irregular sessions; coordination with other state institutions; and cooperation with political parties, associations, and nongovernmental organizations. The members of the Collegium mentioned above work alongside the heads of the parliamentary groups, mainly consisting of political party members or groups of independent candidates, as an “Extended Collegium.” The “Extended Collegium” consults regarding the preparation and implementation of the parliament’s one-year operational plan. The collegiums of the two chambers form the “Common Collegium” of the two Houses. The Common Collegium consults on questions of inter-parliamentarian cooperation and prepares general issues that concern the two chambers. Moreover, it prepares draft laws for parliamentary procedure. In practise, the organization of the work of both chambers faces significant delays and obstacles. As an illustration, the annual operation plans have always been

2.2  Parliament: Parliamentary Assembly

33

adopted with significant delays and no official evaluation of their implementation has ever been conducted. After the constitutional session, which usually takes place two months after the general elections, work of the House of Representatives, including the appointment of standing committees, kicks off only once the decision on the government majority has been taken. In the case of the current parliamentary composition (mandate 2018–022), the constitutional session took place in December 2018, while the committees and the Council of Ministers were appointed only in December 2019. In the one-year break, the House of Representatives met only four times without any legislative decisions being taken. There are standing and ad-hoc committees (komisije) in the House of Representatives. The former consist of nine members, while the ad-hoc committees may have fewer than nine members. The seven permanent committees are: Constitutional-Legal; Foreign Affairs; Foreign Trade and Customs; Finance and Budget; Transport and Communication; Gender Equality and Preparation of Election of the Council of Ministers of Bosnia and Herzegovina. The committees mirror the approximate structure of the political party groups. One-third of all committee members are from the Republika Srpska, and two-thirds are from the Federation (Art. 30 Rules of Procedure of the HoP). In practical terms, both ethnic and territorial proportionality are guaranteed, while there is no gender quota applied. As said above, the establishment of the standing committees is conditioned by the overall decision on the parliamentary majority. In case of the latest general elections from October 2018, standing committees were appointed only a year later in December 2019. Political parties and independent representatives form political party groups (klubovi), consisting of minimum three representatives. Beside that groups of the bigger parties, like the SDA, HDZ, SDP, SDS and SNSD, representatives of smaller parties which have less than three representatives make arrangements among each other, so that formally no representative is acting independently. This is especially important when it comes to the public financial benefits and administrative support from the Secretariat of the PA BiH. Unlike the House of Representatives, the House of Peoples is represented by three fixed caucuses: Bosniak, Croat and Serb delegates. The House of Peoples holds its constitutional session usually later then the House of Representatives, as members are not directly elected, but appointed by the entity parliaments. The election of the Croat and Bosniak members usually can take some time bearing in mind that the House of Peoples of the Federation is also dependent on the delegation of members from the ten cantonal assemblies. The constitutional session of the House of Peoples after the October 2018 general elections took place only at the end of February 2019. Delegates elect a Chair of the chamber and two Deputies who lead the work of the House of Peoples in accordance with the principle of rotation. The following permanent committees are formed by six members, reflecting the usual ethnic and territorial proportionality: Constitutional-Legal Committee; Committee on Foreign Trade Policy, Customs, Transport and Communication; and Finance and Budget Committee. Also here, there is no obligatory representation of women and men delegates among the committees.

34

2 Institutions

While each chamber has their own working bodies focused on the issues mentioned above, there are also joint committees that deal with broader matters. The joint committees are: Joint Committee on Defence and Security of Bosnia and Herzegovina; Joint Committee on Supervision of the work of Intelligence and Security Agency in Bosnia and Herzegovina; Joint Committee on Economic Reforms and Development; Joint Committee on European Integration; Joint Committee on Administrative Affairs and Joint Committee on Human Rights. These committees each consist of nine members, six of whom come from the House of Representatives and three from the House of Peoples. Like the other committees, they are characterized by territorial and ethnic proportionality. All committees generally meet in public, but can also decide to exclude the public from their sessions. The Bosnian-Herzegovinian constitutional setup does not foresee any reserved seats for the obligatory representation of national minorities or a lower election census for national minority parties, like in the case of some other post-conflict societies (Croatia, Serbia or Kosovo; Bieber 2008b). The Law on the Protection of the Rights of National Minorities (adopted in 2003) outlines the establishment of the Council of National Minorities (Vijeće nacionalnih manjina) as an advisory body to the Parliamentary Assembly on issues such as language, culture, education and media, representing the interests of the seventeen recognized national minorities (Fond otvoreno društvo 2006, p. 32). The PA BiH established the Council in April 2008 after considerable delay. Today, the Council is chaired by a representative of the Ukrainian community, with representation of all seventeen minorities, among them seven women. The Council focuses its interventions around the implementation of the Sejdić–Finci case, advocating for the abolishment of the discriminatory provisions related to the representation of national minorities in the Presidency, House of Peoples and other institution on different level of governance. Since 2019 the Council is also addressing the issue on the establishment of National Councils for the seventeen minorities, based on similar regulation in the neighbouring countries of Serbia and Croatia. Overall, the role of the Council is marginalized and it has a limited influence on the decision-making of the Parliamentary Assembly (Table 2.2). Considering the social structure of the House of Representatives in the current election period, it is striking that women are highly underrepresented with only seven women (16.6%) directly elected at the October 2018 elections. Precise numbers of elected male and female representatives in the House of Representatives may be found above. The representation of women in the current parliamentary composition was increased to 11 (26.19%) representatives through the appointment of some male representatives as ministers and their replacement with female candidates from the same electoral list. All of the representatives are over thirty years of age. The majority of the MPs are between forty and seventy years old. Prior to becoming involved in government, the majority of representatives worked in the fields of economy, medicine, law, education and engineering. At the moment, in the House of Peoples there are 3 female and 12 male delegates, all over the age of 40 and, compared to the House of Representatives, with long term experience in government or parliamentary functions on entity or state level.

2.2  Parliament: Parliamentary Assembly

35

Table 2.2  Gender representation in the House of Representatives after each general election Elections 1996 1998 2000 2002 2006 2010 2014 2018

Overall 42 42 42 42 42 42 42 42

Female MPs 1 2.4% 13 31% 2 7.1% 6 14.3% 5 11.9% 9 21.4% 10 23.8% 7 16.6%

Male MPs 41 29 39 36 37 33 32 35

97.6% 69.0% 92.9% 85.7% 88.1% 78.6% 76.2% 83.4%

Source: Central Election Commission web page

There are several instruments in place to guarantee parliamentarian control over the Council of Ministers. A group of at least three representatives can initiate a vote of no confidence (nepovjerenje) against the Council of Ministers (Art. 143 Rules of Procedure of the HoP). The government then has the right to issue a written statement to the representatives before the House of Representatives deals with the request. After a successful vote of no confidence and the resignation of the Council of Ministers, the information must be forwarded to the Presidency so that the procedure for the appointment of a new government can kick off. In practice, this has never been the case, even though there have been initiatives. Another control mechanism are the parliamentary questions (poslaničko pitanje) in the House of Representatives. The government or an individual ministry is required to react to the question within 30 days in either written or oral form, regardless of the request (Art. 151–155 Rules of Procedure of the HoP). In practice, a significant number of requests stays unanswered. Additionally, a joint session on the topic “The delegates pose a question—the Council of Ministers answers” is supposed to be organized twice annually with both chambers and the Council of Ministers. This session is of an informative nature and did take place irregularly in the last years. The members of the Council of Ministers may be invited to the sessions of individual committees for informative purposes. Also, this mechanism is not actually functional in day-to-­ day work (Marković 2012a). Whereas the House of Peoples can be dissolved by the Presidency, the House of Representatives can only be dissolved by itself. This has never occurred. But, as the Electoral Law does not foresee provisions on the organization of early parliamentary elections, dissolving the House of Representatives is not an option in reality. The work of the PA BiH has proven challenging since the signing of the DPA. The House of Representatives held its first session on 5 October 1996, yet the majority of the representatives from the Republika Srpska did not participate. After that, only one more meeting took place by April 1997. The first sessions were not even organized in the building of the parliament in Sarajevo, but in the National Museum and at the University campus in East Sarajevo (Radušić et.al. 2010, pp.  100–105). International partners like the OSCE Mission to Bosnia and Herzegovina and the US development programme (USAID) are continuously implementing projects in

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support of parliamentary development and democratic law making (Gavrić 2012). Today, the Parliamentary Assembly has a solid administrative and support structure. The Secretariat of the Parliamentary Assembly is chaired by the secretaries of the two chambers and the secretary of the common services. Each chamber, standing committees of the chambers and the common standing committees of both chambers have a cabinet/office (kabineti/uredi) with parliamentary support staff. Besides that, there are units (sektori) for law making, research, information-computer technologies, public relations, protocol, international relations, logistics, internal audit and financial and administrative support, managing the day-to-day work but also available to support political party groups and individual MPs in conducting their representation, law making and oversight functions. Unfortunately, the available human resources in the parliament service stay mostly unutilized because of continuous political divisions. On a positive note, the level of transparency has been assessed as very good, with the re-designed web page, pro-active publishing of documents and involvement of civil society organizations in activities of the parliamentary committees. And beside the fact that the competences are divided between that state and lower level of governance, the number of adopted laws is a good indicator for the level of activity within the national legislature (Džihić 2018, p. 103). The number of amended and adopted laws has increased since the 2000 and 2002 elections. Five times as many laws were adopted in the mandate 2002–2006 than in the mandates 1996–1998 and 1998–2000, respectively. The Office of the High Representative acted in the post-Dayton period as a legislator, especially from 1996 until 2007, when it has imposed 112 laws in total (Gavrić 2012, p. 251; Gromes 2018, p. 67). This positive trend of parliamentary activity will unfortunately decline from the 2006 elections on, with the strengthening of ethnopolitics. In the last mandate period, from 2014 until 2018, only 59 laws were approved, while 58 draft laws, even though proposed and discussed, were not adopted. This confirms decline in law making, compared to the two previous mandates 2006–2010 (170 adopted laws) and 2010–2014 (71 adopted laws). Almost half of the mandate period 2014–2018, the parliamentary majority did in fact not have a numerical majority among representatives, acting de facto as a minority government (Centri civilnih inicijativa 2018a). Legislative stagnation will continue to be an enormous challenge for the Parliamentary Assembly for years to come, bearing in mind the high political division among the current parliamentary majority. Institutional reform of the two legislative chambers is imperative in order to avoid overburdening the current 57 members of parliament, as this may make productive and efficient work possible. Past attempts, like the reform proposals as part of the 2006 April Package or the 2009 Butmir Process, to increase the size and re-­ divide the competences among the two chambers, have failed. Civil society proposals, like the one from 2013 by the Coalition Equality (Jednakost), to fully abolish the House of Peoples and significantly increase the size of the House of Representatives, did not receive enough critical attention by the political parties and professionals. Current political discussions, if at all, focus only on the abolishment of the discriminatory provisions and the implementation of the rulings of the

2.3 Government: Council of Ministers

37

European Court for Human Rights and there are no more progressive models in the public discourse. Finally, it is also important to highlight the overall dominance of the executive on all levels of governance, including on the state level. Decisions in the post-Dayton period have been taken outside of institutions, without participation and consultation of a broader audience or the civil society, what can be seen as confirmation of the consociational political setup. The Council of Ministers can usually relay on oversized parliamentary majorities and accordingly the opposition is usually small and weak. Some critical authors in the country speak even from a crisis of the parliamentarism in Bosnia and Herzegovina (Marković 2012a, b).

2.3  Government: Council of Ministers The Council of Ministers (Vijeće/Savjet ministara) of Bosnia and Herzegovina represents the state-level government. The first law on the Council of Ministers from 1997 required rigid parity of the three ethnic groups. All decisions had to be adopted by consensus of the entire cabinet (Art. 17, Law on the Council of Ministers). Additionally, a minister and his two deputies, who belonged to the three majority ethnic groups, had to agree on all decisions. The Council of Ministers was led by two co-chairs who rotated the chairpersonship every eight months. This complicated and complex system led to governmental weakness. The Constitutional Court ruled in 1999 that the institutionalized form of co-­ chairpersonship in the Council of Ministers was in breach of the Dayton Constitution. This decision made it possible, for the first time, to question the previous system of various blockades and veto mechanisms, as it went far beyond the common proportionality structure. In 2002, the OHR drafted a new law on the Council of Ministers, a task that the PA BiH was unable to complete due to an impasse caused by internal disagreements. The system of co-chairs was abolished and replaced by one Chair and two Deputies (which were selected among the ministers). The three still represented the three ethnic groups but did no longer rotate (Krtalić 2011, pp. 279–299). Only the Minister of Defence has two deputies due to the three-fold structure of the military and as a result of the overall compromise as part of 2003 defence reform. Moreover, one minister or the General Secretary of the Council of Ministers has to be a member of the “Others”. In previous mandates, Minister of Justice (2003–2007), Slobodan Kovač; Minister of Foreign Affairs (2007–2012), Sven Alkalaj, member of the Jewish population; and Minister of Transport and Communications (2012–2015), Damir Hadžić, were not belonging to any of the three majority communities. From 2015 until 2019, under Prime Minister Denis Zvizdić, all nine ministers were coming from the three majority groups. In the current mandate, appointed in December 2019, the Minister for Human Rights and Refugees should be a representative of one of the national minorities, but no appointment was made until March 2020. The number of ministries has been continuously increasing since 1997. In the first composition of the Council of Ministers there were only three ministries within

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2 Institutions

the Council of Ministers, namely the Ministry of Civil Affairs and Communication, Foreign Trade and Economic Relations, and Foreign Policy. The last two ministries were laid down in the Constitution as obligatory institutions (Art. V). 2001 and 2003 three new ministries were established so that the Council of Ministers now consists of the Chairperson and nine ministries: –– –– –– –– –– –– –– –– ––

Ministry for Foreign Affairs, Ministry for Foreign Trade and Economic Relations, Ministry for Finances and Treasury, Ministry for Communication and Traffic, Ministry for Civil Affairs, Ministry for Human Rights and Refugees, Ministry for Justice, Ministry for Security, and Ministry for Defence

The failed constitutional reform package from April 2006 included the establishment of two other ministries: Ministry for Science, Technology and Protection of the Environment, and Ministry for Agriculture. Another proposal, which has been discussed in 2008, entailed the replacement of the Ministry of Human Rights and Refugees with a new Ministry for European Integration. This proposal was not well received, since Bosniak parties oppose the idea of dissolving the Human Rights Ministry until the successful return of all refugees has been guaranteed. However, there is a need for a Ministry for EU Integration. This need arises from the fact that the current Directorate for European Integration, an administrative body of the Council of Ministers, cannot fulfil all tasks related to the EU integration process. Nevertheless, further extension of the competences of the central state government and an increase in the competences of the Council of Ministers is only viable in the framework of broad institutional and constitutional reform. The Chair of the Council of Ministers is designated by the Presidency after consultation with the parliamentary parties. S/he needs to be confirmed in the office of the same chamber twenty-two days after the first session of the House of Representatives. If the House of Representatives does not confirm the Chair, the Presidency must designate a new candidate within eight days. The Head of the Council of Ministers must put her/his cabinet up against a vote at the latest 70 days after the constituent session of the House of Representatives (Art. 9–10i, Law on Council of Ministers). This provides an opportunity for the parliament to object to individual ministers and ask for new candidates from the Chair. In practise, there is a totally different reality. In the last three mandates, the Chairperson and the ministers of the Council of Ministers were appointed 15 months, 6 months and 14 months after the last general election, not respecting legally set timeframes for the appointment of the Council of Ministers. All members of the Council of Ministers must undergo a thorough investigation before their appointment and confirmation. During this investigation, the Central Election Commission, Secret Service, and State Agency assess their activities in the war, their previous professional career and their criminal record for the State

2.3  Government: Council of Ministers

39

Investigation and Protection Agency (Art. 10d, Law on Council of Ministers). In the immediate post-war period the OHR assumed this task, yet it has now been entirely transferred to state institutions. The Chair of the Council of Ministers and her/his two deputies represent the three constituent peoples. The appointment of ministers and their deputies is also based on the principle of ethnic parity so that the same number of ministers and deputies from all three ethnic groups are represented in the state-level government. For instance, in the current government appointed in December 2019, there are three Bosniak, three Croat and two Serb Ministers in addition to the Serb Chairman of the Council of Ministers, Zoran Tegeltija. As previously mentioned, the Minister for Human Rights and Refugees is still to be appointed and the agreement is that it will be a representative of the national minorities, coming from the Republika Srpska. The Chair of the Council of Ministers can resign without any explanation, thus delegitimizing the entire government. The House of Representatives can dissolve the entire Council of Ministers by a vote of no confidence and force the election of a new cabinet. The election procedure is the same as that of the Council of Ministers after regular elections. In comparison with other parliamentary democracies, the function of the Council of Ministers’ Chairperson corresponds only slightly to the function of a Prime Minister. In addition to the tasks of coordinating work among the government and other central state institutions, the entities, and Brčko District, as well as the call for, preparation, and monitoring of governmental sessions, the Chair has to coordinate on all political duties with her/his deputies. Thus, the competency of guiding the Council of Ministers does not rest solely with the Chairperson (Art. 28–29, Law on Council of Ministers). Until now there has never been a Chairwoman of the Council of Ministers. In the current composition there are two female ministers, Ankica Gudeljević (HDZ), Minister of Civil Affairs, and Bisera Turković (SDA), Minister of Foreign Affairs. In the previous mandate, from 2015 until 2019, there have been two female ministers, Semiha Borovac (SDA), Minister of Human Rights and Refugees, and Marina Pendeš (HDZ), Minister of Defence, while in the government from 2012 until 2015 there were no women. This is fully in breach with the Law on Gender Equality (Art. 20), which foresees an obligatory representation of both gender with min. 40% in the legislature, executive, administration, judiciary and all other public bodies. Directly subordinated to the Council of Ministers are the following standing offices: the Directorate for European Integration, the General Secretariat, the Office for Legislation, the Office for the Coordinator of Brčko District, the Internal Policy Committee, the Economic Committee and the Directorate for Economic Planning. These bodies consult the Council of Ministers on sector policies and work towards specific goals (Art. 22–27b, Law on Council of Ministers). Cooperation with civil society is regulated through a 2017 agreement between the Council of Ministers and NGOs, but the government did not manage to create conditions for a sustainable civil society development, especially when it comes to funding of national NGOs working on human rights, rule of law and democracy related issues. Also, their involvement into policy-making is irregular, unstructured and depending on the pro-activity of the NGOs (Grünther-Đečević 2018).

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Table 2.3  Composition of the Council of Ministers (1996–Present) Chairperson Bosić/Silajdžić Silajdžić/Mihajlović Tusevljak/Raguž

Political parties part of the coalition SDS-HDZ-SDA-SBiH KCD-Sloga-HDZ KCD-Sloga-HDZ

Matić/Lagumdžija/ Mikerević

SDP-SBiH-NHI-BPS-Democratic Pensioner’s Party -SNS-PDP-SNSD-SPRS

Terzić Špirić Bevanda Zvizdić Tegeltija

SDA-SBiH-SDS-PDP-HDZ SNSD-PDP-SBiH-SDA-HDZ-HDZ1990 HDZ-HDZ 1990-SNSD-SDS-DNS-SDP-SBB SDA-DF-HDZ-SDS-PDP-NDP SNSD-SP-Ujedinjena Srpska-HDZ-HSS-SDA-DF-SBB

Period 3.1.1997–4.2.1999 4.2.1999–22.6.2000 22.6.2000–18.10.2000 18.10.2000–22.2.2001 22.2.2001–18.7.2001 18.7.2001–15.2.2002 22.2.2002–13.1.2003 13.1.2003–9.2.2007 9.2.2007–15.12.2011 15.12.2011–11.2.2015 11.2.2015–23.12.2019 23.12.2019–present

Due to the specific elements of the political system, all governments, with the exception of the governmental majority under Matić–Lagumdžija–Mikerević, were oversized because too many political parties (representing entities and ethnicities) had to be involved. Single party cabinets have not existed in Bosnia and Herzegovina thus far (Gavrić 2007, p. 25). Only in the mandate period 2014–2018, the parliamentary majority did in fact not have a numerical majority among representatives during the entire mandate period, acting de facto as a minority government especially in the second half of the mandate. In the last three mandates government majorities have been shifting during the mandate, especially among the political parties that represent the majority Bosniak vote, resulting with multiple changes among ministers and deputy ministers (Table 2.3).

2.4  R  eference: Prepared by the Authors, Based on Data from the Council of Ministers Web Page Even though the SDA, SDS and HDZ have dominated the political landscape for years as representatives of their corresponding peoples, it becomes obvious that there are no fixed coalition partners. Hence, various coalition combinations were possible, and the easiest way to create these was via territorial and ethnic quotas. As the strongest party in Bosnia and Herzegovina, the Bosniak SDA has almost always been part of the state-level government with the exception of the years 2000–2002. Even though always with a limited number of seats in the House of Representatives, HDZ has ensured a monopole on the representation of the Croat interest, occupying even three ministerial posts in the past two governments, like no other political parties. The DPA introduced the Council of Ministers, which was intended to act as a central level mini-government and exercise the executive power in support to the

2.5 Judicial System

41

Presidency. In the post-Dayton period, the ministers enjoyed a high degree of autonomy, which caused a lack of cohesion in the Council of Ministers (Bieber 2008a, p. 65). This increased the power of the three nationalist parties so that the SDS and HDZ, in particular, could maintain their secessionist intentions, impeding the development of a stronger central state and central state organ. The Bosniak SDA dominated institutions of the central state, in particular the diplomatic service. In the first decade of post-Dayton Bosnia, the Council of Ministers did not even have its own revenues but was fully dependent on financial transactions from the entities and the international community. During the government period of the Alliance for Change (a more left-wing party coalition, led by the SDP) and the resulting exclusion of the national parties from the government, progress was made and the government began to be strengthened (Bieber 2008a, p. 65). This became evident, for example, in the establishment of new ministries. However, the Council of Ministers remains fragmented. Individual ministers still only represent their party, instead of state interests or a coalition agreement, which is directly or indirectly reflected in the poor results of governmental work. The last government, in position from March 2015 until December 2019, was already in pre-­ election campaign a year before the general elections in October 2018, and did not have a majority in the House of Representatives. Instead increasing its activities around policy-making and implementation, the government had the lowest productivity in comparison with the last two government compositions. In the period March 2015-June 2018, the Council of Ministers drafted only 77 laws. Also, this government composition did not prepare a Law on the Foreign Affairs, even though foreseen in its work plan, leaving the country without a policy framework for its foreign policy. Key reforms, like the Electoral Law reform, were not addressed at all (Centri civilnih inicijativa 2018b). Work in the Council of Ministers continued to manifest the constant division between the Government of the Republika Srpska and the central level government. For example, even though a coordinated policy approach was needed, the Republika Srpska did not provide its support for the adoption of the country-wide Framework Strategy on the implementation of the Istanbul Convention. As a result, the Framework Strategy was adopted by the Council of Ministers in 2015, but practical implementation is taking place only through activities of the Government of the Federation. The Government of the Republika Srpska introduced its own implementation body, independently of the state-level approach.

2.5  Judicial System The Bosnian constitution delegates the organization and responsibilities for the judicial system to the entities and Brčko District (Art. II 3(a), Constitution of BiH). The BiH Constitutional Court is the only judicial institution which responsibilities, competences and organization are mentioned in the state Constitution. Others like the High Judicial and Prosecutorial Council, the Court of Bosnia and Herzegovina, the state Prosecutor and the Public Attorney will be later on regulated by the state

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law. Apart from courts that work on dispute resolution, the justice system of Bosnia and Herzegovina includes other institutions that enable the application of the law, such as: (1) ministries of justice at all levels in Bosnia and Herzegovina, (2) prosecutors’ offices, (3) general attorneys’ offices, (4) law firms, (5) notary public offices, and the European Court of Human Rights, considering that Bosnia and Herzegovina have been member of the Council of Europe since July 2002 (Smailagić and Keranović 2009, p. 303). One might include three constitutional courts in BiH into the justice system as well, as those courts are special courts whose primary objective is the protection of principles of constitutionality and legality—the BiH Constitutional Court, the FBiH Constitutional Court and the RS Constitutional Court. The process of post-war transition and the reform of the bosnian-herzegovinian justice system formally started by the establishment of a special body of the United Nations in July 1998 under the name “Justice System Assessment Project” within the UN Mission to BiH. In 2001, the Peace Implementation Council and the OHR agreed on the establishment of an Independent Judicial Committee (Smailagić and Keranović 2009, p. 303). From March 2001 to 2004 there were entity committees and a state-­level committee whose task was to draft a strategy for justice system reform, restructuring the justice system and the process of reappointment of judges and prosecutors. The committees completed their work in 2004, when the BiH High Judicial and Prosecutorial Council was established (Smailagić and Keranović 2009, p. 303). Significant progress in judicial reform was made between 2001 and 2006 by the introduction of European standards with regard to reducing the number of prosecutors’ offices and courts, and by a formal separation of process of appointment of judges and prosecutor from other authorities, i.e. separation of this process from the influence of politics. However, a general position is that the justice system reform has not been completed, especially taking into consideration the European integration process, and the significance that the European Union gives to independent and efficient justice system. On 6 June 2011, the then Commissioner for Enlargement and European Neighbourhood Policy, Štefan Füle opened an EU-BiH Structured Dialogue on Justice within the framework of the Stabilisation and Accession Process (EU Delegation web page). The aim of the dialogue is reform of the justice system in parts related to its structure and competences, as well as work methods of judicial institutions in order for the system to get aligned with the European standards and regulations. So far, seven meetings have been held, resulting in different recommendations; seminars have been organized and a Protocol has been signed on a ministerial meeting held on 10 September 2015 within the framework of EU-BiH Structured Dialogue. The reform process is still ongoing, and it will probably continue during the entire European integration process. When it comes to the judicial structure of the federal units, the Constitution of Federation introduces principle of the judiciary independence, while the Law on the courts in Federation (2005) implements in through specific legal norms. The judiciary independence has been realized through mechanisms such are the selection and appointment of judges, finances, the length of mandates and the prohibition of formal interaction channels on interference. The judicial system is structured in 31

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municipal, ten cantonal and the Supreme Court. While the municipal courts (općinski sud) may exercise jurisdiction over one or several municipalities, the competency of the cantonal courts (kantonalni sud) corresponds to the cantonal borders. The Supreme Court of the Federation (Vrhovni Sud Federacije BiH) is the highest appeal court in the Federation. The Constitutional Court (Ustavni sud Federacije BiH) among the others has the competences to control the principle of constitutionality and legality of statues, bylaws and other legal acts. In Federation there are 10 cantonal and the Prosecutor’s Office of the Federation. Similarly, to the Federation, Republika Srpska has its own Law on the Courts which specifies the organization, competences and functions of courts in RS.  The independence of courts in the Republika Srpska is additionally guaranteed in the Constitution of Republika Srpska (Art. 121). The judicial power is exercised by basic courts (osnovni sud), district courts (Okružni sud), High Commercial Court in Banja Luka (Viši privredni sud) and three commercial courts (privredni sudovi) in Banja Luka, Doboj and Istočno Sarajevo, and the Supreme Court of Republika Srpska (Vrhovni sud). There are 19 basic courts and five district courts (Banja Luka, Doboj, Bijeljina, Trebinje and Istočno Sarajevo). In the same way as in the Federation, Republika Srpska has its own Constitutional Court preforming the same competences (Art. 115 Constitution of the Republika Srpska). Additionally, there are 5 prosecutors’ offices and Special Prosecutor’s Office for fighting organized crime and heaviest forms of commerce crime. In Brčko District, a separate judicial structure was introduced in the Brčko Statute (Art. 66) and in the Law on the judicial system. The structure comprises of the General Court (Osnovni sud) and the Court of Appeal (Apelacioni sud). Additionally, there is the District Prosecutor’s Office (Tužilašto Distrikta Brčko). The establishment of the Court of Bosnia and Herzegovina (Sud BiH) in 2007, which has state-level jurisdiction, was of particular importance to the Bosnian-­ Herzegovinian judicial system. Its tasks are comprised of the protection of effective implementation of the central state’s competences, and the protection of human rights and rule of law (Art. 1 Law on the Court BiH). The Court consists of departments for administrative law, civil law, criminal law and appeal. The department of criminal law consists of sections on war crimes, corruption, organized crime and general crime. The department of appeal is in charge of lawsuits against decisions delivered by the other departments. However, this court system has not yet fulfilled the prerequisites for a consolidated judicial system. In order to have an independent appeal court (not a department in the current situation) it would require the establishment of a Supreme Court of Bosnia and Herzegovina as an appeal instance to the State Court. Nevertheless, there is still an ongoing debate whether BiH as a federal state needs to have a supreme court (Šarčević 2011). This idea has been included in current reform discussion, but still there is no political consensus on this. Apart from the Court of BiH, the state-level judiciary includes BiH State Attorney’s Office, BiH State Prosecutor’s Office, as well as BiH Ministry of Justice and other public administration bodies competent for administering the activities of the judiciary of BiH.

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In 2004, the High Judicial and Prosecutorial Council (Visoko sudsko i tužilačko vijeće/savjet) was installed as a result of judicial reform in order to practically ensure the principle of the independence of the courts. This council is composed of an independent and autonomous body that is designed to ensure the independence, neutrality and professionalism of the judicial powers. The Council is responsible for the election of judges and prosecutors at all levels; it rules on questions of judges’ non-compliance with other functions and ensures continuous and adequate funding of the courts and the prosecution. As an additional guarantee of their independence, the judges of the Court of BiH and of the courts in the Federation and RS are assigned lifelong appointments. The third element to guarantee the separation of powers is significant financial independence. The High Judicial and Prosecutorial Council applies to the state-level Ministry of Justice for its annual budget, which needs them to be adopted by the Parliamentary Assembly. The High Council is authorized to justify its budget proposal to the parliament, constituting an institutional exception. Thus, it can be concluded that Bosnia and Herzegovina possess a good system of judicial independence with regard to its institutional and structural organization, in comparison to other countries in the region. The BiH Constitution provides the basis for the state-level Constitutional Court (Ustavni sud BiH), which strongly resembles Austrian and German legal tradition. The Constitutional Court is comprised of nine members, four of which are appointed by the House of Representatives of the Federation (2 Bosniaks, 2 Croats), two by the National Assembly of Republika Srpska (2 Serbs) and three by the President of the European Court of Human Rights in consultations with the Bosnian and Herzegovinian Presidency. The latter cannot be citizens of Bosnia and Herzegovina or neighbouring states (Art. IV Constitution BiH). So far, the foreign judges have included men and women from Austria, France, Germany, Macedonia, Moldova, the United Kingdom, Sweden and Italy (Schwartz 2019, p. 7). After their second appointment, the judges’ mandates continue until they choose to take another position, or until they turn 70, the age of retirement. This “mix” of national and international judges in the literature is known as the hybrid courts. Hybrid courts respond to a common post-conflict dilemma: in the aftermath of conflict, domestic institution may lack capacity and to be prone to ethnic bias, but purely international institutions are an unattractive alternative because of the lack of its legitimacy. Therefore, hybrid courts seek the best of both worlds: international personnel are recruited for their professionalism and impartiality and domestic personnel are included to promote local legitimacy. Nevertheless, the model placed in Bosnia and Herzegovina shows its weaknesses since foreign judges have been accused of political bias and Serbs and Croat political parties are calling for their removal (Schwartz 2019, p. 4). In general, the jurisdiction of the Constitutional Court is defined under Art. VI.3 and Art. IV.3. of the Constitution. Within its overriding duty to “uphold” the Constitution, it consists of six types of jurisdiction. That means: (1) disputes arising under conflict of jurisdiction; (2) review of constitutionality of law; (3) examination whether an entity’s decision to establish a special parallel relationship with a neighbouring state is consistent with the Constitution; (4) referral of disputes; (5) appellate

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jurisdiction and (6) unblocking of the Parliamentary Assembly (Article VI.3. of the Constitution). The jurisdiction of the Court in the case of “blockage” of the work of the House of Peoples of the Parliamentary Assembly concerning an issue of destructiveness of the vital national interest represents in many ways atypical area of a constitutional court as this represents an “interface” between the judicial and legislative authorities. The appellate jurisdiction is established by the constitutional provision to which the Court “shall have appellate jurisdiction over issues under this Constitution arising out of a judgement of any other court in Bosnia and Herzegovina” (Art. VI.3 (b)). This implies that the Constitutional Court is the highest judicial body in the country. This also confirms its role as being a special institutional safeguard for the protection of the rights and freedoms enshrined in the Constitution. In disputes arising under conflict of jurisdiction and review of constitutionality of laws, disputes may be referred only by the following authorized parties: a member of the Presidency, the Chair of the Council of Ministers, the Chair or a Deputy Chair of either chamber of the Parliamentary Assembly, one-fourth of the members of either chamber of the Parliamentary Assembly, or one-fourth of either chamber of a legislature of an Entity. The Court’s decisions are final and binding (Art. IV Const.). The Constitutional Court’s independence is ensured by the fact that no other body can adopt laws and legal acts that determine the court’s work. Additionally, the court is financially autonomous. Another very important institution that was established on the basis of Annex 6 of the Dayton Peace Agreement was the Chamber for Human Rights (Dom za ljudska prava), which existed until 2003. This is one of the rare examples in Europe of a country having a separate human rights judiciary institution in addition to the main judicial system. The Chamber of Human Rights (also called the Court for Human Rights) was modelled, in structure, after the European Court of Human Rights in Strasbourg. It consisted of fourteen members, six Bosnian-Herzegovinian judges and eight foreign judges, who were appointed by the Council of Ministers of the European Council. The Chamber was the direct recipient of complaints from citizens on breaches of human rights that had failed to pass other inner state courts at the cantonal or entity level. Furthermore, the Chamber was only responsible for those violations of rights that took place after the end of the war. The lack of implementation of the Court’s rulings has been often criticized. The mandate of the Chamber ended in 2003 according to Article 14 of Annex 6 and the proposal of the Venice Commission of the European Council (Sali-Terzić 2001, p. 161). The 9,000 unsolved cases of the Chamber were left to a Commission within the Constitutional Court. Since then, the Constitutional Court or the European Court for Human Rights in Strasbourg has dealt with violations of human rights, as Bosnia and Herzegovina became a member of the European Council in April 2002 (Plessing 2007, p. 55). Nevertheless, justice system in BiH faces many systematic problems. The structure, legal framework and instruments have been set, but the implementation in its full capacity lacks. This is nothing new, especially in transitional and post-conflict societies in which substantial changes are far behind from the formal. Meaning, having efficient, trustworthy and independent justice system. On December 2019,

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Reinhard Priebe presented to the European Commission, the EU Member States and the BiH authorities the main findings of the independent senior experts’ report on Rule of Law issues in Bosnia and Herzegovina (Priebe 2019). As stated, the report has to be read in the context of (recent) analyses and recommendations provided by the EU, in particular those set out in the Commission’s Opinion on BiH’s application for membership of the EU (para. 8). According to the Report, in BiH important rule of law areas such as the judiciary requires systemic reforms (para. 14). A common understanding and a common sense of responsibility across levels of governments and institutions for overcoming rule of law shortcoming in the country are desperately needed (para. 15). A culture or responsibility, accountability and transparency still need to be fully developed within public institutions (para. 16). Such a culture is required to promote greater consistency in policy and action and to ensure clarity and foreseeability of law and practice (para. 16). Like in other countries in the regions, in BiH the lack of an appropriate regulatory framework is not always the most pressing issue (para. 20). In many areas, legislation in line with European and other international standards is already in place, but there is a considerable gap between legislation and practice (para. 20). Implementation of rule of law is insufficient, often due to poor management of human resources and political interference (para. 21). Nevertheless, trust needs to be rebuilt because there is a widespread perception in the county that in recent years judicial decisions were politicized (para 23). Civil justice proceedings are laborious, complex, formalistic and take excessive amount of time (para 32). For example, the civil judiciary is overburdened by an untenable backlog of over 1.9 million cases relating to unpaid utility bills (para 33). In order to enable the civil judiciary to focus its limited resources on serious matters, court must be relieved of the cases relating to enforcement of uncontested small debts (para. 33). Another major source of citizens’ dissatisfaction with the civil justice system is the excessive length of court proceedings (para 34). The BiH Constitutional Court has found violations of the reasonable time clause, guaranteed by the BiH Constitution and the ECHR, in hundreds of cases (para 34). Moreover, administrative justice is not efficient in protecting the individual rights of citizens against decisions or the failure to act of public authorities (para. 40). A particular problem persists at the level of the Supreme Court of FBiH which is facing an important backlog of cases relating to protection of veterans’ rights and risks unable to deliver judgements within a reasonable time (para 40). Moreover, there is no right to appeal in these cases (para. 40). The criminal justice system in BiH is falling to combat serious crime and corruption (para 42). None of the four criminal justice jurisdictions is adequately functioning (para. 42). Cooperation between state, entities, district and cantonal jurisdictions is extremely weak (para. 44). The relationship between prosecutors and police is far from clear of effective in tackling crime (para. 45). The deep fragmentation of law enforcement agencies across the country significantly affects their overall capacity to fight and prevent crime (para 46). Like civil proceedings, criminal trials are excessively lengthy and inefficient (para. 51). The operational inefficiency in cases of corruption, complex financial crime and organized crime are a cause of particular concern (para 53). According to the Report,

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in these cases the judicial system is clearly not functioning (para. 53). All aforementioned dysfunctions lead to an enormous distrust of the citizens in the criminal justice system and to huge losses for the public budgets (para. 61). Additionally, over the last years, the High Judicial and Prosecutorial Council has itself become part of the problem (para 65). Serious miscarriages of justice have become apparent due to lack of leadership capacity, allegations of politicization and conflicts of interest, inefficient organization, insufficient outreach and transparency, and finally, its failure to implement reforms (para. 64). The lack of trust in the judiciary is particularly acute with regard to the High Judicial and Prosecutorial Council (para. 68). It is often perceived by citizens and even by members of judicial community as a centre of unaccountable power in hands of persons serving the interests of political patronage an influence (para 68).

Chapter 3

Federalism

In this chapter we will present the complex territorial organization of the country, its asymmetric, consociational federal structure with the two entities, the cantons in the Federation and the Brčko District. In each of the sub-chapters we will provide some historic context to the founding and development of the federal units, and shortly introduce its institutions, decision-making processes and some explanatory examples on the institutional development and performance. Finally, at the end of the chapter, we will introduce the local self-government system in the two entities, presenting competences and institutional setup, and explaining the similarities and differences of the local self-government systems in the two entities.

3.1  Federal Units: Entities The political system in Bosnia and Herzegovina is very decentralized and of complex nature (see Chap. 1 and also Marković 2012b; Keil 2013, 2018). As mentioned in the introduction, some authors argue that the state structure is confederal rather than federal (e.g. Savić 2003; Bose 2002). Yet the entities are not explicitly entitled to secede from the central state. As a result of the historic developments during the war, two separate quasi-state bodies emerged, each with their own constitution and institutional setup (Republika Srpska 1992; and the Federation of Bosnia and Herzegovina 1994). The DPA joined these quasi-states under the central state of Bosnia and Herzegovina and introduced an asymmetric federal state structure with strong consensual democracy power-sharing elements (Sahadžić 2019; Keil 2018). The structure was extended with the 1999 final arbitration on the status of Brčko, creating the Brčko District as a de facto third federal unit. Nevertheless, it is important to highlight, that the Constitution does not per se name the country a federal For all data presented in this chapter regarding the representation of different political parties in the entity, cantonal and Brčko District parliaments and government, please visit the web pages of the parliaments and governments listed in the bibliography. © Springer Nature Switzerland AG 2021 D. Banović et al., The Political System of Bosnia and Herzegovina, https://doi.org/10.1007/978-3-030-54387-7_3

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state, but this can be logically concluded through the interpretation of the different constitutional provisions and post-Dayton political developments. The two entities were conceptualized very differently. While the Republika Srpska resembles a unitary autonomous republic dominated by the Serbian ethnic group, the Federation was established as a highly decentralized autonomous republic with ten cantons (Markert 2003, p. 88). The border between the two entities, the infamous Inter-Entity Boundary Line, resembled an actual state line for years after the war, including checkpoints and identification examination. Eventually the High Representative interfered and introduced uniform, unidentifiable license plates, and freedom of movement for all ethnic groups was ensured. This and other measures helped refugees and internally displaced people to return to their pre-war homes. Also, as a result of the High Representative’s drastic measures, some para-state structures established during the war had to be dismantled. This was especially important in the Federation, as the functioning of all institutions of the entity had been undermined by the fact that the Croat dominated areas still maintained some government practices and institutions from the war-time Republic of Herzeg-Bosnia (Markert 2003, p. 89). Immediately after Dayton, the state level had only limited competences in the area of: foreign policy and affairs; foreign trade; monetary issues; refugees, asylum and migration; air space safety and coordination activities in the area of criminal justice, communications and transport between the entities. This was reflected in the small and weak structure of the Council of Ministers. All other competences were initially in the full ownership of the entities (in the Federation some of them even on the level of the cantons) but will, with the time, in some areas be transferred to the central state. The internationally lead state building and transfer of competences will stop in 2006, with the overall decision of the international community to withdraw from the day-to-day decision-making and to rely on local ownership (Laudes 2009). The constitutional structure involving larger power resources and instruments at the entity level was a vehicle for the systematic obstruction of the peace process by the nationalist parties from the beginning. Under the leadership of the SDS, the Republika Srpska was especially opposed to the DPA. It did not trust the international community and their initiatives for the implementation of the peace agreement and the strengthening of democratic, state-level institutions. Several warnings and massive sanctions from the OHR were the only means of restricting nationalist politics. Croat and Bosniak parties did not act in such an open, confrontative manner since the Dayton regulations were mostly in their favour. Instead they delayed reforms in a more subtle way, by constitutional means or through a lack of legal activities at the cantonal level. For example, in Croat dominated cantons, laws on higher education have been adopted with significant delays and some of the cantons did not introduce the nine-year primary school curriculum until 2006, even though Bosniak dominated cantons did so latest in 2005 (Batarilo and Lehart 2010, p. 129). After several reforms designed to strengthen the central state, the Republika Srpska recognized that the DPA was the guarantee for the protection of the federal structure of the country. Especially since the general elections in 2006, Milorad Dodik acted

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as a strong advocate of that framework and insisted on compliance with all authorities and competences of the entities, leaving him with a wide scope of action in “his” entity. Nevertheless, very soon he will change his approach, moving from Dayton status quo to a stronger call for RS independence. Latest since the 2012 elections, at regular intervals, he threatened to hold a referendum regarding the independence of the Republika Srpska, in order to assert his claims, cement his power and slowly take back the central state’s competences, the latest being the “RSexit” request from February 2020 (Deutsche Welle, 18.02.2020). As a result, this approach has enabled him to stay in power from 2006 until today. It is also important to highlight two more points specific to the bh. federalism, one on the fiscal federalism and the second, on the special relations of the entities with Serbia and Croatia. All activities on the central level in the first years after the war have been fully dependent not just on political will from the entities, but also on their financial transactions. The state did not have its own incomes. Only by reforming the customs systems and introducing a value added tax in 2006, the collection of key budget income is now being handled by the state-level Indirect Taxation Authority (Uprava za indirektno oporezivanje) of Bosnia and Herzegovina, with a fixed transfer to the state institutions, entities, cantons and municipalities (Keil 2018). Interestingly, the budget for the state-level ministries and institutions is since years fixed with ca. 950 Mio. KM (ca. 485.7 Mio. EUR). Political parties from the Republika Srpska are not allowing any further growth of institution on the central level. The Constitution of BiH allows the entities to sign specific agreements with neighbouring states as long as they are in compliance with the sovereignty and territorial integrity of the central state (Art. III.2). Republic of Croatia and the Federal State of Yugoslavia, or the Republic of Serbia, severely interfered as patronage states in Bosnia and Herzegovina’s internal political development during the first years following Dayton. With the democratic changes in Croatia and Serbia in 2000 and the related withdrawal of support for the secessionist intentions of the BosnianHerzegovinian Croats and Serbs by the at that time new political elites in the neighboring countries, strengthening of the state-level institutions in BiH could be introduced (Gromes 101 2006b, p. 10). Yet today, Bosnian-Herzegovinian Croats and Serbs are oriented towards Zagreb and Belgrade, respectively. Even obtaining citizenship of the respective country is not in breach of the Constitution according to the Constitutional Court’s judgment (Winkelmann 2003, p. 78) (Table 3.1).

3.1.1  Federation of Bosnia and Herzegovina The Federation’s Constitution dates back to June 1994. It was mediated by the Americans in the context of the Washington Peace Agreement between the war-­ time, Bosniak dominated Republic of BiH and the Republic of Croatia (Markert 2003, p. 88), creating the basis for stopping the war between Croats and Bosniaks. Similar to the Dayton constitution, which will follow a year later, the Federation’s

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Table 3.1  Comparative overview of some elements of the federalism in BiH

Parliaments

Presidency

Government

Republika Srpska National Assembly One-chamber parliament, with 83 members, with 4 guaranteed seats for all three constituent peoples; CoP as an examination board on the ethnic veto 28 members in the CoP, 8 B, 8 C, 8 S, 4 O President, Presidency usually S, One S from RS, and one B With two deputies and once C (representing from FBiH the other two constituent people), all three directly elected President holds all responsibilities, deputies act only ceremonial;

State level Parliamentary Assembly Two equal chambers 42 members in the HoR, 1/3 from RS and 2/3 from FBiH, no reserved seats for any group; 15 members in the HoP, 5 B, 5 C, 5 S

Chair 9 ministries, 1/3 from RS and 2/3 from FBiH 3 B, 3 C, 3 S (on one post a representative of Others can be appointed)

Prime Minister 16 ministries, 8 S, 5 B, 3 C (on one post a representative of Others can be appointed)

Brčko District Assembly 31 members, with two seats reserved for national minorities

Federation Parliament Two equal chambers; 98 members in the HoR, with 4 guaranteed seats for all three constituent peoples; 58 members in the HoP, 17 B, 17 C, 17 S, 7O

Cantons Assembly 21–35 members, no reserved seats for any groupÖ

President, usually C, With two deputies (representing the other constituent two people), indirectly appointed by the parliament President needs consensus of deputies for the majority of decisions Prime Minister 16 ministries, 8 B, 5 C, 3 S (on one post a representative of Others can be appointed)

n/a n/a The post of the cantonal governors, initially foreseen in the Washington Agreement, has been abolished in all cantons

Prime Minister 8 to 12 ministries

Mayor, Deputy Mayor (both elected by the Assembly) Government composition Coordinator and 12 department heads (continued)

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Table 3.1 (continued) State level Ethnic quotas 1/3 parity for the three in representation constituent people; 1/3 RS, 2/3 FBIH parity 40% quota for Gender electoral lists quotas in representation for the elections of the PABIH;

Veto mechanisms

Entity and ethnic veto in PABiH and presidency

Republika Srpska 1/3 parity for some functions, for other ethnic parity as per census;

Federation 1/3 parity for some functions, for other ethnic parity as per census 40% quota for 40% quota for electoral lists electoral lists for the elections for the elections of of the NARS and municipal/ the HoR and city assemblies; municipal/city assemblies; Ethnic veto in Ethnic veto in HoP; HoP

Cantons Less formal parity arrangements;

Brčko District Less formal parity arrangements

40% quota for electoral lists for the elections of the Assembly;

40% quota for electoral lists for the elections of the Assembly;

Ethnic veto in assemblies

3/5 majority voting 2/3 ethnic voting

Reference: Developed by the author, based on Bieber 2004, p. 51 (abbreviations: B Bosniaks, C Croats, S Serbs, O Others)

constitution is of a consociational nature and is territorially decentralized into ten cantons, each having extensive powers (Gromes 2007, p. 164). Five cantons have a majority Bosniak population (Una-Sana, Tuzla, Zenica-Doboj, Bosnian Podrinje and Sarajevo); three cantons are mostly Croatian (Posavina, West-Herzegovina and Livno/Canton 10); and two cantons have an ethnically mixed population (Central Bosnia and Hercegovina-Neretva).1 According to the latest census from 2013, there are 2.219 Mio. inhabitants in the Federation, with following divide among the three big ethnic groups: 70.4% Bosniaks, 22.4% Croats and 3.6% Serbs. The actual population size of the cantons differs a lot, with Canton Tuzla (445.000) being the most and Canton Bosnian Podrinje (23.700) the least populated. The capital of the Federation is Sarajevo, but its government maintains an office in Mostar. As on the state level, the government of the Federation contains consociational elements and a clear separation of the different branches of power. Initially, this was designed to ensure that the smaller Croat community, and after the Constitutional Court decision on the constituent people the even smaller Serb group, cannot be overruled. The implementation of the Constitutional Court decision and the constitutional changes from 2002 did not bring about new institutions like in the 1  Original names: Unsko-sanski kanton, Tuzlanski kanton, Zeničko-dobojski kanton, Bosanskopodrinjski kanton, Kanton Sarajevo, Županija/kanton Posavski, Županija/kanton Zapadnohercegovačka, Kanton 10, Srednjobosanski kanton, Hercegovačko-neretvanski kanton/ Županija. “Županija” is the term that Bosnian-Herzegovinian Croatian us for “canton”. The term is still often used today by Bosnian-Herzegovinian Croats even though the Constitutional Court declared its use in breach of the constitution since the actual “Županije” are located in Croatia and have a completely different rank within the political system. See map at the beginning of the book.

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Republika Srpska. Instead, already existing rights were extended to the Serb population (e.g. additional deputy position for the entity President), a quota was established for the composition of the government, and fixed mandates created in both parliamentary chambers. The constitutional amendments from 2002 introduced also an ethnic balance to key positions, making sure, among others, that the Prime Minister, President, the two chairs of the two parliamentary chambers and the President of the Constitutional Court are not coming from the same ethnic group. Unfortunately, this rule is today not fully respected. In the Federation aside from the House of Representatives, there is an indirectly elected second chamber (House of Peoples) with the same amount (17 each) of Bosniak, Croat and Serbian delegates, who represent the three ethnic groups, delegated out of the cantonal assembly members from the ten cantons based on population proportionality. Others are represented with seven delegates. Members of the cantonal assemblies are sent as delegates to the second chamber, acting de facto in dual function: as members of cantonal assemblies and delegates within the House of Peoples of the Federation. These delegates have the ability to make use of their veto rights in the parliament in case of a violation of vital national interest (see more on veto rights in Chap. 1). The Constitution of the Federation specifies the thematic range for such a veto, in contrast to the state constitution where that range is broader (representation rights, structure of institutions, constitutional amendments, territorial structure, culture and ethnic identity). Moreover, each topic can be vetoed with a two-thirds majority of the delegates so that the thematic restraints are de facto obsolete. The constitutional session of the House of Peoples of the Federation takes usually some time, until all ten cantonal assemblies do not decide which Bosniak, Croat, Serb and the Others members of the cantonal assemblies are to be appointed to act as delegates (Gromes 2006a, p. 535). In practice, delegates act as protectors of the interest of the ethnic communities, but even more as protectors of the interest of the political parties they belong to. As ethnic groups are very diverse also their representation by different political parties results with different approaches to policy solutions. For example, a Croat delegate from HDZ and SDP will for sure significantly disagree on how the education system is to be structured and if there should be the so-called two schools under one roof (read more on the phenomenon in OSCE 2018b). The House of Representatives consists of 98 members who are elected for 4-year terms. Each ethnic group receives at least four representative mandates (Section IV.A, Art. 1, Constitution of the Federation BiH). These reserved seats are especially for the representation of Serb representatives of importance, as they might not be differently elected at all because of the overall numerical underrepresentation in the population. The representatives are elected from 12 electoral units, which not always overlap with the boarders of a canton. Following political party groups are represented in the current composition of the House of Representatives: SDA (27), HDZ coalition (16), SDP (11), DF-GS (10), SBB (8), NS (6), PDA (3). There are 17 other MPs from smaller parties (up to two seats) and independent representatives. The current majority is composed of SDA, SBB, DF and HDZ, which together hold

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55

61 out of 98 seats. Different than in the Republika Srpska, all laws need to be adopted by both chambers. The President of the Federation and both of his/her deputies are indirectly elected by the two chambers of the parliament, and they must be members of the three different majority ethnic groups. After the general elections in October 2018, the Parliament of Federation did still not elect a new president and the two deputies. Since February 2015, Marinko Čampara (Croat, HDZ) is acting as the President and his deputies are Milan Dunović (Serb, DF) and Melika Mahmudbegović (Bosniak SDA). Since 1999, an unwritten rule is being applied, that the President is always a Croat (while the Prime Minister is a Bosniak). Since the foundation of the Federation in 1994, there has been only one female president. According to constitutional changes from 2002, apart from the Premier Minister, the government of the Federation must be comprised of eight Bosniak, five Croat and three Serb ministers. One representative of the Others may be appointed, within the quota reserved for Bosniak ministers (Section IV.B, Art. 4, Constitution of the Federation BiH). The Government is appointed by the President, with consent of his/her deputies and after the confirmation by the House of Representatives. As the election of the President and his/her deputies, also the appointment of the new Government did not take place after the October 2018 elections. The government from the former mandate is still acting. Interestingly, except DF, representatives of the current majority in the Parliament of the Federation, are anyhow occupying all posts in the still acting government. Only three out of the 16 ministers are female. In addition to the ethnic quota, there is extremely strong vertical interweaving, which delays and complicates the process of re-staffing central posts. Furthermore, the formation of coalitions entails common, complicated negotiations between the different parties (Gavrić and Banović 2007, p. 62). Since the last elections in 2018, HDZ is preconditioning the appointment of the government, with a reform of the Electoral Law, by which not only the discriminatory provision on the exclusion of Others would be abolished, but also an electoral setup would be established that would ensure that Croats from Croat majority and HDZ dominated cantons would be elected into the Presidency and other institutions. Attempts for such reforms have failed in the past. Competences are divided into three groups: competences of the Federation, competences of the cantons and shared competences (between the Federation and the cantons) (Section III, Constitution of the Federation BiH). The 1994 Federation constitution foresaw competences on the level of the Federation, like customs, defence, foreign policy and monetary politics, which with the Dayton constitution or post-Dayton reforms have been transferred to the state level. The competences of the Federation are today: regulation of the citizenship of the Federation, economy planning and reconstructions, financial policy, fighting terrorism and inter-cantonal crimes, and energy policy. Cantons have the exclusive competence for, among others, economic development, police, education policy on level of education, science, culture, sports, housing. Shared competences are human rights protection, health, environment protection, transport and communication, social policy, tourism and use of natural resources. In practice, Croat parties are very much insisting on

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­ aintaining the current setup and are against the strengthening of the entity governm ment. Among others, based on a request of the former President of the Federation, Borjana Krišto, the Constitutional Court of the Federation declared in 2010 the existence of the ministries for education and science and culture within the Government of the Federation as unconstitutional, bearing in mind the very clear constitutional allocation of the education and cultural policy competences to the cantons. Interestingly, this decision has never been implemented and the two ministries still exist. Cantons have their own legislative, executive and judicial branches. Hence, they also have their own parliaments (21–35 members), whose representatives are elected for four-year terms. There are not reserved seats for the three ethnic groups or the Others for the election of the cantonal assemblies, which in the past has caused problems on the delegation of assembly members to the House of Peoples of the Federation, as the ethnic quotas could not be met. This has also allowed manipulation, for example, ethnic Bosniaks declaring as Croats or Serbs in the Canton Sarajevo or Canton Podrinje-Bosna, just to be appointed as delegates in the House of Peoples. The very low election threshold of 3% results sometimes with very fragmented representation. For example, in the Assembly of the Canton Tuzla in the current mandate there are seven political parties, with no party holding more than 10 out of the 35 seats. In the Canton Sarajevo Assembly, there are eight political parties and five independent MPs, where again the biggest party group holds max. Ten seats. This is not always the case in the Croat dominated cantons, as in some of them HDZ holds an absolute majority during the almost entire post-Dayton period. In the current mandate, in the West-Herzegovina Canton, HDZ holds 16 out of 23 seats (see also Gromes 2007: 166). At the cantonal level, there are several regulations concerning the ethnic balance, e.g. distribution of chairpersonship and deputy function between the ethnicities in the assemblies or that the cantonal prime minister and chair of assembly cannot be from the same ethnicity. Special arrangements were introduced for the two mixed cantons (Gromes 2007, p. 166). All cantons have governments, with a Prime Minister and 8–12 ministers. Especially in the last decade, government majorities have been very unstable, resulting with multiple changes during one mandate. This has effects on the efficiency and effectiveness and the overall performance of the government (see monitoring reports on the performance of the cantonal governments available on the Centri civilnih inicijativa web page). For the first time in the post-Dayton history, since 2019, one cantonal government, concretely the Government of the Canton Bosnia-­ Podrinje, is run by a female prime minister, Aida Obuća. In political practice, constitutional regulations have led to immense bureaucratization as parallel structures have been established at the federal and cantonal levels (Markert 2003, p. 89). Legislative and executive responsibilities are fulfilled by several institutions within one entity of approximately 2.2 million inhabitants. For example, education and justice policy is implemented by one federation ministry, as well as ten cantonal ministries. While some cantons did not even have laws regulating the founding and functioning of universities, they did allow the establishment of private universities. This has been the case, for example, in the Canton Central

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57

Bosnia. Overall functionality is questionable, since four cantons do not have more than 60,000 inhabitants and are economically stagnant. A reduction of administrative levels or a merging of cantons seems reasonable but touches upon highly sensitive political issues. Even though announced in 2016 by at that time Presidency member Bakir Izetbegović, merging of cantons has never been realized. These topics are not anymore part of the public discussions since the last general elections in 2018.

3.1.2  Republika Srpska The Constitution of the Republika Srpska dates back to 1992 and established a unitary republic (Savić 2003, p. 17). The para-state, existing from 1992 until 1995, has been integrated into the Dayton constitutional framework in 1995. Following the constitutional text, the capital is still Sarajevo, but all institutions are in the informal capital of Banja Luka. The Republika Srpska government is more centralized than the Federation since there are no vertical politics in-between the entity and its municipalities/cities. In the framework of the constitutional decision from 2000 and subsequent constitutional changes in 2002, the ethnic principle was introduced for the fulfilment of central legislative, executive and judicial bodies. A Council of Peoples, a type of legislative body but not a full second chamber, was introduced where the delegates have the right to veto based on concerns of vital national interest, just as in the Federation. Further changes such as the addition of a second deputy president, and an ethnic quota for the government and the first chamber and the National Assembly (Narodna skupština) were also introduced. The underlying context for this decision was the desire for equality of the three constituent people, as non-Serb residents were underrepresented under the previous ethnically neutral system. De facto, a discriminatory system was introduced, as for a lot of positions and executive post, representatives of the Others are excluded or not equal to the representatives coming from the three majority groups (Sitnić and Ždralović 2013). As in the Federation, the constitutional amendments from 2002 introduced also an ethnic balance to key positions, so that the Prime Minister, President and the two chairs of the National Assembly and the Council of Peoples and the President of the entity Constitutional Court are not coming from the same ethnic group. Overall, the constitutional changes of 2002 led to an increase in the complexity of the Republika Srpska’ political structure. According to the population census in 2013, there are 1.228 Mio. inhabitants, of which 81.5% Serbs, 13.99% Bosniaks and 2.41% Croats, living in 57 municipalities and seven cities. The entity President is directly elected for 4 years, as are his/her two deputies. The three must come from each of the three ethnic groups. Due to the Serb-­ dominated population, the President has always been a Serb. The current President (since 2018) is Željka Cvijanović (SNSD), only the second female president since 1995, and her deputies are the Bosniak, Ramiz Salkić (SDA/Coalition Domovina)

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and the Croat, Josip Jerković (HDZ). Since 2006 the president post has been in the hands of SNSD. The deputies in practice play no role in decision-making, as compared to the Federation, where decisions of the president need to be supported by the deputies. In practice, the strength of the post depends a lot on who is occupying it. From 2010 until 2018, Milorad Dodik, by becoming the President of the Republika Srpska, made sure that his office is significantly increased when it comes to financial and human resources. Informal power in the Republika Srpska was linked to his post and personality. With him becoming a member of the Presidency of BiH in 2018, the informal power has been moved back to the political party. The 83 MPs are elected to the National Assembly for 4 years by majority vote, coming from 9 electoral units. Each constituent people receives at least four mandates and there are no reserved seats for the Others (incl. National minorities), like in the House of Representatives of the Federation. This provision is of importance for the Croat population, as otherwise they might not elected at all into the entity parliament. The MPs of each ethnic group in the National Assembly then appoint the delegates of the Council of Peoples (Vijeće naroda), which puts the independence of this council in question. Apart from the eight delegates of each of the three ethnic groups, four more delegates have to have a seat in the Council of Peoples who represents the Others. Since 2018, members of the Council are two representatives of the Montenegrin community and one Slovenian and one Italian. The second mandate in a row, the Croat Nada Tešanović, member of the SNSD, is the chairwomen of the Council. The competency of the Council of Peoples is limited to the protection of vital national interests. In comparison to the House of Peoples of the Federation, this is a narrower competence. Thus, the Council of Peoples is not a proper parliamentary chamber but rather an examination board of laws already adopted in the National Assembly. In case a law violates vital interests, the second chamber can influence the legislation. Only the National Assembly can deliver a vote of no confidence and decided on the appointment of the Government. Apart from the Prime Minister, who is appointed by the President of the Republika Srpska, the government is comprised of eight Serb, five Bosniak and three Croat ministers. A Serb seat in the cabinet may be occupied by a representative of the Others (Art. 92, Constitution of the Republika Srpska). The formation of the governmental following the last four elections was more effective and efficient than in the Federation. The National Assembly appointed just two months after the General Elections in October 2018 the new government. Since 2005, SNSD has been occupying the post of the Prime Minister and traditionally ruling in coalition with the SPRS and DNS. In this government, three ministries were also given to the small coalition partners, Demos, NDP and United Srpska. Overall, there is an agreement that the unitary Republika Srpska is better functioning than the Federation and its ten cantons. The Assembly of the Republika Srpska has a much stronger Assembly administration, with support staff for all committees and political party groups. The Ministries are better equipped and based on the new Government building in Banja Luka. Also, decision-making is easier, as there are clear political majorities since 2005, with small changes and inclusions of

3.2 Brčko District

59

smaller political parties. In the Republika Srpska there are clearer divisions between the opposition and the majority, while in the Federation almost all numerically possible government majorities have been formed in the last 15 years. Nevertheless, the nationalistic politics of SNSD, but even the moderate nationalistic politics of the other Serb parties, are continuously undermining developments on the state level. The leader of the strongest political party, Milorad Dodik, has been continuously threatening that the Republika Srpska will demand its competences back which have been transferred on the central level, like the entity competence to form an army, or even hold a referendum for independence. Just at the beginning of 2020, after another decision of the Constitutional Court of BiH, which is political not supported by the Republika Srpska, Dodik announced the beginning of an “RSexit” (Deutsche Welle, 18.02.2020). This tense atmosphere is blocking any further development of the country, especially related to the integration of the European Union.

3.2  Brčko District Brčko District has a special status in the complex territorial structure of Bosnia and Herzegovina, as it is not allocated to either entity, but forms the so-called condominium of both of them. In practice, Brčko functions as an independent district subject only to state control. The special status of Brčko is a result of the geostrategic importance of this municipality, which according to the 1991 referendum had a Bosniak-Croat majority population. Brčko forms on one side a corridor between the two parts of the territory of the Republika Srpska, while on the other hand it maintains the only link in the north between the Federation and Croatia. As no solution could be found during the 1995 peace negotiations, the Dayton Peace Agreement (Annex 2, Art. V) left the status of the pre-war municipality to a binding arbitration of a commission. The Commission, consisted of an international representative and a representative from each of the two entities, was tasked to make a final decision if Brčko should be given to either of the entities or become an autonomous unit. The final arbitration from 1999 assigned Brčko the status of a uniform autonomous district, with its pre-war municipal boundaries (Bieber 2005, p. 426). The special position of Brčko is also recognized in the Constitution of BiH, through the adoption of the first and only amendment to the Constitution in 2009, and following the Peace Implementation Council meeting on 23 May 2012, it was decided to suspend, not terminate, the mandate of the previous International Supervisor (OHR Brčko Supervision web page, 31.08.2012). The Brčko Arbitral Commission, together with the suspended Brčko Supervision, continues to exist. Even though, there is a strong disagreement among legal scholars (Kulenović 2012, p.  203), de facto, Brčko District forms today a third federal unit, together with the two entities. According to the data from the 2013 Census, Brčko is one of the rare balanced and multi-ethnic local self-government units in the country, with a population consisting of 42% Bosniaks, 35% Serb and 21% Croats. In order to exercise their voting rights, citizens of the district have to choose between one of the two entity

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citizenships. Based on this decision, at general elections for the entity and statelevel i­nstitutions, they vote either as a citizen of the Republika Srpska or of the Federation. It also important to highlight, that while the entities have fixed seats in the Parliamentary Assembly of Bosnia and Herzegovina, there are no reserved seats for the citizens of Brčko District. Their interests are only indirectly represented, through the participation in the election of representatives from one of the two entities. On local level, the eligible voters among the 84.000 district inhabitants elect a 31-member Assembly. In the current composition (mandate 2016–2020), there are 11 political parties/coalitions and five independent MPs. No political party or coalition has more than five MPs, which makes the forming of a government majority additionally complicated. In line with the special status of the district, the Assembly combines functions of a parliament of a federal unit and of a municipal council, being entitled to approve/amend the district statute, adopt laws (including the budget of the district), make municipal decisions (for example, about water supply and waste management), but also to exercise oversight of the Government (Art. 52 and 59, Statute of the Brčko District). The Assembly work is organized in committees, with a small and symbolic secretariat. The elections for the Brčko District Assembly are taking place at the same time when all other municipal and city elections in the two entities and are not linked to the general elections. The district forms one electoral unit and two, out of the 31 seats, are reserved for national minorities. The district is run by its own government and district administration. The Mayor and Deputy Mayor are appointed by the Assembly, which also chair the Government of Brčko District, consisting of 12 department chiefs and a chief coordinator. The Mayor and the Deputy are of different ethnic background and there is an unwritten rule that the Mayor should not be from the same ethnic group two mandates in a row. Currently, Siniša Milić (SNSD) and Ante Domić (HDZ) are occupying the two posts, and SNSD, SDS, NDP, HDZ, SDA, SBIH and SBB are represented in the Government. This oversized government composition on one side ensures the needed three-fifth majorities needed for decision-making but on other hand disables effective work of the opposition. Beside the 12 government departments, Brčko District maintains different executive institutions, including a Coordination Office to the Council of Ministers of BiH. The district has its own Police independent from all police agencies on other levels of governance. The district has its independent judiciary, consisting of a basic and appellation court, and prosecutors’ office. The district statute lays down fewer power distribution arrangements than on the state level and in the entities and cantons. Most decisions must be made by a three-­ fifths majority in the Assembly. As mentioned above, until 2004, an international supervisor governed the district by direct intervention and was responsible for appointing the mayor and assembly members. In 2004, direct local elections took place for the first time since the war. Hence, the municipality now has its own legislative, executive and judicial competences (Bieber 2005, p. 421). Although the municipality was initially in a fragile situation, it has benefited from its special status within the country. During the 2000s, Brčko surpassed the

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rest of the country in regard to salaries and general economic indicators. Since people were chosen for central offices and assembly seats by an international supervisor on the basis of an application and qualifications, it was possible to develop an environment shaped less by ideology and more by merit. Since there were no direct elections between 1999 and 2004, the municipality was detached from the struggle for power between the entities and parties. The decision-making processes offered more opportunities for compromise and the administrative structures were less ethnically oriented (Bieber 2005, p. 427). Brčko is the only territory in which an integrated, multi-ethnic education programme has been introduced and boys and girls from all three constituent people and the national minorities are attending one programme. Only for native language classes students are being divided based on ethnicity. Unfortunately, the positive atmosphere has changed over the last decade. Ethnopolitics have taken over daily politics and general economic indicators are in some cases lower than in the two entities. The district administration is also overwhelmed with the district competences. Here are two examples to illustrate this. Brčko District adopted only in 2018 the Law on the Protection from Domestic Violence, while the entities have done so in 2005 and 2007 (ARS BiH 2019). The government department for education has very limited capacities to lead policy development and implementation in the area of higher education. As a result, multiple private universities and colleges received positive decisions to operate study programmes in the district, without meeting minimal standards (Centre for Information and Recognition of Qualifications in Higher Education, 23.03.2015). Only after intensive media reports, government reacted and has withdrawn the decisions. It will be interesting to follow future developments, especially as part of a potential constitutional reform of the country. In the majority of the existing proposals coming from political parties, international and national NGOs, which were coming from the federalization approach, there were no proposals to abolish the district. Its balance between the two entities seems to be accepted by all political stakeholders.

3.3  Local Self-Government In the immediate post-war period, new laws on self-governing were adopted in both entities. In the Federation, the Law on the Principles of Local Self-Government was adopted in 1995, and a new Law on the Principles of Local Self-Government was adopted in 2006. In the Republika Srpska, corresponding legislation was not passed until 1998. The new Law on the Local Self-Government in Republika Srpska was adopted in 2017. The 1985 European Charter of Local Self-Government is also part of the Bosnian constitutional system and sets standards for local self-governing units within the Council of Europe. Additionally, Bosnia and Herzegovina ratified the European Charter of Local Self Government on 12 July 2002.

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Until 1992, Bosnia and Herzegovina had 109 municipalities and one city— Sarajevo. There are now a total of 141 municipalities: 62 in the Republika Srpska, 79  in the Federation and the Brčko District as a sui generis self-governing unit (Agency for Statistics BiH web page). There are currently also 16 cities in the Federation—Sarajevo, Mostar, Čapljina, Ljubuški, Gradačac, Visoko, Gračanica, Srebrenik, Živinice, Bihać, Cazin, Goražde, Široki Brijeg, Livno, Zenica and Tuzla—and 8 cities in the Republika Srpska—Banja Luka, East Sarajevo, Doboj, Trebinje, Prijedor, Zvornik, Bijeljina and Gradiška. Sarajevo is the only city in the Federation that has 4 municipalities, whereas the city of Istočno Sarajevo is the only city in the Republika Srpska with six municipalities. Average size of local self-­ government units in the Federation of Bosnia and Herzegovina is 333.5 km2, while average population is 28,386 people. This population and size place municipalities in the Federation of BiH significantly above average of EU member states (Huškić 2017, p. 109). Several small or sparsely populated municipalities were established as a result of an unnatural drawing of border line between the Federation and the Republika Srpska that split up the municipalities that existed before the war (Huškić 2017, p. 109). This results in municipalities with just a dozen of square kilometres which do not have a potential for appropriate performance of their duties. At the same time, there are great differences between some local self-government units in BiH, both in terms of population and in terms of size and economic power (Huškić, 2017, p. 109). For example, Trnovo Municipality has 1522 inhabitants and a size of 338 km2; Glamoč Municipality has 3860 inhabitants and a size of 1033 km2, while Novi Grad Sarajevo Municipality has 118,553 inhabitants and a size of 47  km2 (Huškić 2017, p.  109). Legislation in the Federation of BiH defines local self-­ government as the right and capability of local units to regulate and manage certain public activities in accordance with their inherent responsibilities and in the interest of the local population (Art. 2, Law on Principles of Local Self-Government FBiH). Local self-government is organized and achieved in (1) municipalities and (2) city and is exercised by local governmental bodies and citizens in both entities. In the similar way it has been defined in the Law on the Self-Government in Republika Srpska (Article 3). Aside from a few minor discrepancies, laws in both entities set out identical criteria for the granting of town status. According to federal law, a town is a local unit of self-government defined as an urban and infrastructure-based system of elements, which are interconnected by the everyday needs of the population (Art. 5). An additional criterion that needs to be fulfilled is that the municipality must have a minimum of 30,000 residents, or at least 10,000 people living in its urban centre as an integral urban area. Unlike the Federation regulation, the status of a city in the Republika Srpska may be granted to an urban area that makes a single geographical, social, economic, historical and territorial unit with an appropriate level of development, with more than 50,000 inhabitants, and which has had the status of a developed unit of local self-government for the past three years (Article 10, paragraph 1). Actually, irrelevant of the number of inhabitants, if unemployment rate in the specific area is above entity average (Article 10, paragraph 2).

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An additional feature common to both entities’ legislation is the definition of local self-government duties. Actually, they can be divided in the area of (1) management and organization of work and (2) providing services. Some of them are: –– Adoption of the budget of the local unit, programmes and plans for the development of the local unit of self-government, providing conditions for its economic growth and job creation; –– Establishment and implementation of spatial plans and environmental protection, housing policy; adoption of programs for housing development and other types of property development, as well as adoption of regional and local spatial plans; –– Establishment and implementation of a policy for control, management and use of construction land; –– Establishment of a policy to manage the natural resources of the local unit of self-government as well as distribution of revenue collected as compensation for the use of those resources; –– Management, financing and improvement of the operations and facilities of the local public infrastructure such as: water supply, wastewater disposal and treatment, solid waste collection and disposal, public sanitation, city cemeteries, local roads and bridges, street lights, public parking lots and parks; organization and improvement of local public transport; –– Establishment of a preschool and primary school education policy, improvement of the preschool and primary school institutional network and management and funding of public institutions for preschool education; –– Assessment of the work of institutions and quality of services in the areas of health care, social welfare, education, culture and sport, as well as ensuring the funds required for the improvement of the work and quality of services in accordance with the needs of citizens and capabilities of the local unit of self-government; –– Organization and implementation of protection measures and the rescue of people and material goods from natural disasters; –– Supervision of activities related to land surveys, cadastre and property records; –– Calling for a referendum for the area of a local self-government unit; –– Ensuring and keeping records on the civil status of the citizens and voter lists as well as real estate records; –– Affairs related to land survey and land cadastre, etc. Both laws assign local authorities the power to conduct all public affairs not explicitly granted to another authority. Higher tiers of government may not deprive the local authorities of these rights and powers. The right of self-government can be protected before the constitutional courts in BiH. In the case U-11/04 from 5 May 2005 the Constitutional Court of FBiH declared the Law on communal taxes as unconstitutional and as the breach of right to self-government (Huškić 2017, p. 117). Both entities’ legislation also grants greater autonomy to local bodies in relation to budgetary policy and the management of municipal property. The units of local self-government are largely financed through taxes, charges, payments received for

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building ground and income from assets. Indirect taxes are administered at state level and shared between the state-level institutions and entities. Direct taxes, social contributions and many other local revenue sources are all set and administered by the entities or local governments. Additionally, municipalities and cities in BiH depend on a wide array of smaller revenue sources (including self-generated revenues) (LGI 2018: p. 24; 65) (Table 3.2). Even though municipalities are at “the bottom” of the hierarchical structure, they perform very important functions in the areas of housing, education, health, security, etc. Financially speaking, in 2015 budgetary incomes for all municipalities in Bosnia and Herzegovina were ca. 1,6 billion convertible marks (comparable, state level had for that year a budgetary income of somewhat less than a billion) (Huškić 2017, p. 117). Complicated political relations among the political elites; unsettled political and legal principles, and long political blockades which heavily burden the Bosnian political system could be perfectly pictured in the so-called Mostar Case. The city of Mostar has not had election for the city council and for the mayor since 2008. Namely, on 16 September 2009, the Croat Caucus to the House of Peoples of the Parliamentary Assembly filled the request to the Constitutional Court of BiH for review of the constitutionality of respective provisions of the BiH Election Law, Constitution of the Federation of BiH, High Representative Decision enacting the Statute of the City Mostar and the City Statute (BiH Constitutional Court decision U9/9). Put it simply, the Croat Caucus challenged the provisions that aimed to guarantee the representation of all constituent people and the group of the Others arguing that more democratic and in accordance with the international conventions and the Constitution would be the principle “one person, one vote”. In its judgment, the Constitutional Court decided that respective provisions granting collective representation are inconsistent with the international conventions and the Constitution. OHR, who acted as amicus curiae, claimed that the previous electoral system in Table 3.2  Indirect and direct taxes, social contributions and other revenue sources allocation for municipalities in Bosnia and Herzegovina Indirect taxes (customs, VAT and excises) Personal income tax (flat 10% rate) Corporate income tax (flat 10% rate) Social security contributions Property transfer tax Property tax Parafiscal fees Utility charges Reference: LGI 2018, p. 13

Municipalities in FBiH 8.42% (per capita allocation based on indicators of need and development) Minimum 43.46%

Municipalities in RS 24%

–

Between 25–50% (based on development needs) –

–

–

100% of revenues 100% of revenues n/a Approved and subsidies

100% of revenues 100% of revenues Mostly municipalities Approved and subsidies

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place in the City of Mostar is justified taking into consideration the aims pursued by this system and the historical background of the City (decision U9/9, par 17). When assessing the justification in the case, one needs to take into account the difficult history of peace implementation in Mostar and the important role that Mostar plays in the wider context of peace implementation (decision U9/9, par. 17). Nevertheless, since 2009 the political parties haven’t managed to find a compromise in order to change respective provisions of the Election Law and the Statue of the City of Mostar. Legal obstacles, or the absence of legal framework, limited the citizens of Mostar to participate in local elections. Therefore, Irma Baralija lodged a complaint against BiH before the European Court for Human Rights. Namely, Baralija who also leads the Mostar branch of the political party Our Party argued that the legal issues prevented her for voting or running in a municipal election. The ECHR ruled in her favour saying in its judgment that BiH had failed to comply with its duty to take measures to protect Baralija from discriminatory treatment on the ground of her place of residence and to hold democratic elections in Mostar when it failed to enforce a Constitutional Court ruling on arrangements for voting in local elections. Also, the Court said that it could not accept the government’s justification for the prolonged delay and the difficulties in establishing a long-term and effective power-­ sharing mechanism for the city council (Case of Baralija vs. Bosnia and Herzegovina). It is the Parliamentary Assembly, and consequently the City Council of Mostar who are responsible for the current situation. Regarding the citizens right to some form of direct democracy, it is worth mentioning that both entity laws introduce various forms of direct citizen participation in local decision-making: the law for the FBiH offers the options of referenda, local citizens’ assemblies and citizens’ or NGO initiatives, while the law for the Republika Srpska also provides for citizens’ hearings and consultations with local citizens in the municipal assembly. In order to protect joint interests, the local self-government units may establish associations at the level of Bosnia and Herzegovina, the Federation of BiH and the Republika Srpska. So far, the Association of Municipalities and Cities of the Federation of Bosnia and Herzegovina and the Association of Municipalities and Cities of the Republika Srpska have been established. The objective of the associating is acting as a legal representative before the entity authorities; preparing proposals of laws and amendments to the proposals of laws with the aim of enhancing the regulation of work of the local self-government units; providing opinions and proposals related to the division of public revenues in the section which is related to financing local self-government units and the establishment of contacts and cooperation with similar organizations within the country and abroad, as well as membership in international associations (Article 51 of the Federation Law on the Principles of Local Self-Government). The law in the Republika Srpska, apart from establishing mutual cooperation, provides for the possibility of inter-entity, cross-­border and international cooperation (Article 144). The Association of Municipalities and Cities of the Federation of Bosnia and Herzegovina and the Association of Municipalities and Cities of the Republika Srpska are members of the Network of Associations of Local Authorities of South East Europe which gathers 15 associations from the

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South East Europe, representing more than 4000 local self-­government units and close to 80 million of citizens of this region; Congress of Local and Regional Authorities of the Council of Europe, a politically-oriented organization with 636 members and elected officials that represent more than 200,000 local and regional authorities of 47 European countries; and the Council of European Municipalities and Regions as the biggest organization of local and regional authorities in Europe with more than 60 associations of cities, municipalities and regions from 41 countries, that jointly represent more than 100,000 local and regional authorities. An important innovation for the democratic development of BiH was the introduction of directly elected mayors in both entities. The first elections organized in line with this principle were held in December 2004. This has created fresh opportunities for democratization and marks a break with some of the political practices carried out by the nationalist parties. In BiH, the number of municipalities as units of self-government has steadily decreased over the last 150 years, from around 3000 during the Austro-Hungarian period, to around 400 after the Second World War and, finally, to 109 in 1992. This figure has now risen to 141 as a result of the war, although this increase was the outcome of political endeavours to establish “ethnically homogeneous” communities and was not part of a reform programme aimed at modernizing the administration and improving efficiency. At present, there are enormous differences between the municipalities in terms of their population, physical size, access to natural resources and economic performance. No citizen wants to live in a municipality with a struggling economy and coffers so empty that it cannot adequately perform its statutory tasks of developing and maintaining local infrastructure that is essential to satisfy the community’s needs. According to the Report on consultations of a Joint Commission on Local Government from 2018, there are some common problems which all municipalities and cities in BiH face. When asked to identify the main problems, the response is almost identical in both entities, namely insufficient allocation of financial resources for legally assigned competences (LGI 2018, p. 79). As the second biggest issue, local governments highlight an outdated system of distribution of public revenues with local authorities. When it comes to the confusion concerning the distribution of responsibilities, local governments in both entities said that the two main problems are the contradictions between laws on local self-government and sectoral laws, as well as the situation whereby with shared competences, responsibility usually falls to lowest level even when not funded (LGI 2018, p. 79). At the end, almost 90% local governments in the RS agree that there are obvious differences in the provision of public services in terms of accessibility, content and quality, where peripheral and rural areas are significantly lagging behind central and urban areas. Therefore, there is need to abandon the existing “monotype” concept where all local governments have the same competences and responsibilities, and to adopt a “multitype” concept where competences are based on actual capacities and needs (LGI 2018, p. 80).

Chapter 4

Processes

In this chapter we will present key processes taking place and pre-conditioning political and social developments in BiH. Section 4.1 introduces us to the historic development of the electoral system, including the specifics of the electoral management, institutions and electoral rules for elections of the different institutions in the complex asymmetric federal structure. In Sect. 4.2, we will explain the law- and decision-making process, focusing on the central-level parliament but referring as well to the legislative institutions and process in entity and lower levels of governance. Finally, Sect. 4.3 addressed the short comings, specifics and challenges related to the political culture and political participation of different social groups in the country.

4.1  Elections and Electoral Law The DPA and the Electoral Law laid the legal ground for elections and the electoral system in BiH.  Many compromises influencing the electoral system have been made. These compromises are based on the combination of two principles: constituent people and national sovereignty. International democratic standards related to electoral systems such as universal suffrage, equal voting rights, direct ballot, secret ballot and limited right to stand for elections were incorporated into the constitutional system. The DPA addresses elections and the electoral system in several instances. Annex III of the DPA (Elections in Bosnia and Herzegovina) is directly related to the electoral system and elections in BiH. It explicitly assesses requirements to promote free, fair and democratic elections, to lay the foundations for a representative government, and to ensure the progressive achievement of democratic goals in BiH. This was also a premise for the establishment of an effective electoral system. But the electoral system that was created by this Annex was merely temporary. It was intended to last for only a short time after the war with the support of OSCE but was extended until 2002. The Republic of BiH, the Federation and the © Springer Nature Switzerland AG 2021 D. Banović et al., The Political System of Bosnia and Herzegovina, https://doi.org/10.1007/978-3-030-54387-7_4

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Republika Srpska also agreed to establish elections in accordance with relevant OSCE standards. In compliance with Annex III, Article II (1) defines the role of the OSCE in elections. This role requested the parties of the agreement to adopt and implement an election programme for BiH and to supervise the preparation and conduction of elections for legislative and executive government bodies (state, entity, cantonal and municipal level). Article V of the DPA defined the agreement of parties to create a permanent Election Commission with the responsibility of conducting future elections in BiH. According to Article II (3), the OSCE was to establish a Provisional Election Commission in Bosnia and Herzegovina, which adopted the Electoral Rules and Regulations for Elections on Local and Higher Level in Bosnia and Herzegovina in 1996, the Electoral Rules and Regulations for Municipal Elections in Bosnia and Herzegovina in 1997, and the Electoral Rules and Regulations that were used to hold elections in 2000 until the Electoral Law was introduced. The first post-war presidential and parliamentary elections at the state and entity levels were held on 14 September 1996. The first local elections were postponed a year and took place in 1997. The last elections organized by the Provisional Electoral Commission took place in 2000. In 2001, the PA BiH adopted the BiH Electoral Law. This Law made no significant changes to the temporary electoral system setup through the DPA. The basic characteristics of the permanent electoral system are (Trnka 2006, p. 201): –– Election of the PA BiH and members of the BiH Presidency have been further regulated; –– Conditions for acquiring the right to vote have been also regulated; –– Voters have the right to vote in person or in absence in the municipality where they had residence according to 1991 population census; –– A citizen of BiH who has dual citizenship has the right to vote only if BiH is his or her permanent residence; –– Persons accused or sentenced by the ICTY for serious violations of humanitarian law cannot be elected for any function; –– The principle of incompatibility is regulated; –– Mandates belong to the candidate, not to the party or coalition of which the candidate is a member; –– Permanent terms for the conduction of elections were stipulated. The authorities responsible for the conduct of elections in the permanent electoral system, according to the Electoral Law, are the Central Election Commission, Municipal Election Commissions and the Polling Station Committees. The composition of these authorities should be multi-ethnic, reflecting the population of the constituent peoples and the Others in accordance with the most recent population census. The electoral system of BiH uses different models and principles of mandate distribution. There are elements of both direct and indirect elections applied; majoritarian, proportional and compensatory method in mandate distribution with the system of one-member and multi-member constituencies. Majoritarian system in the

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general election in BiH is implemented in the course of electing the members of the Presidency of BiH and the President and two vice President of the Republika Srpska. On the other hand, proportionate representation system is implemented in the course of electing the representatives for the House of Representatives of the PA BiH, the House of Representatives of the Parliament of the FBiH, the NA RS and the cantonal assemblies. When it comes to the distribution of mandates, in the proportionate representation system, it is performed by implementing the Sainte-Laguë method for converting the votes into mandates, dividing the total number of votes realized with the odd numbers 1, 3, 5, 7, 9, 11 as far as it is necessary to distribute mandates. As a correction, the electoral system uses the compensatory mandate system (Sahadžić 2009, p. 12). The compensational election system has a goal of ensuring political representation for all three constituent peoples and reflects the core nature of the Bosnian political system. The compensation mandates are awarded to those political subjects that are, in reference to the realized election results, won a disproportionate number of regular mandates (or won none) and that crossed legally determined threshold of 3% in the calculation of votes in all multi-member electoral units by applying Sainte-Laguë method. The role of the compensation electoral system is to represent the scattered voices generated by the existence of constituencies. In the distribution of compensatory mandates only the political parties and coalitions can be involved, but not independent candidates. Moreover, the electoral system adopted the system of semi-open candidate lists. Meaning, the registered voters have the right, other than a political party, to vote for a particular candidate on the list. At the same time, citizens are not able to decide on the list of candidates (Sahadžić 2009, p. 16). It is up to the political parties to decide how to form candidate lists. But once a candidate is being elected, he/she holds a mandate not depending on the membership to a particular political party or a coalition. It has been perceived as a more democratic but connected with difficulties of votes counting (Sahadžić 2009, p. 16). Electoral system applies the threshold of 3% for the political parties meaning that the political subjects may not participate in the distribution of mandates if they do not win more than 3% of the total number of valid votes in the electoral unit in which they are running for a certain governmental body. Comparing to the other countries this has been considered to be low. Comparatively, Spain, Greece, Romania and Ukraine have the same as in BiH, whereas, for example, Croatia has 5%, Russia 7%, Turkey 10%, etc. (Venice Commission 2010, p. 5). Also, there is no compulsory voting: minimum age for voting and age for running is eighteen, and a voter turnout for the General Election in 2018 was 54%. The 2003 Law on Gender Equality guarantees the principle of gender equality in private and public life in BiH. More importantly, the Law on Gender Equality prescribes that equal representation of men and women exits when one sex is represented with at least 40% percent in bodies at all levels of authority in BiH (state, entity, cantonal and municipal levels) (Law on Gender Equality, Art. 20. Par. 2). This includes legislative, executive and judicial authorities, political parties, legal persons with public authorities and other that work under the control of the state. Even after the Law on Gender Equality was passed in 2003, it took ten years for the

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state parliament to harmonize the Electoral Law and to include representation of at least 40% of unrepresented sex (Miftari 2015, p. 63). Some argue that the Electoral Law needs to have “a proper harmonization”, meaning that the Gender Equality Law proscribes “at least 40%” and the full implementation of this provision if the Electoral Law includes representation of 50% of unrepresented sex. Nevertheless, women in BiH are still unrepresented, and the situation has not changed after 2018 General Election with only 21.4% elected women in the PA BiH. Beside these, there are other intrinsic discriminatory elements in the electoral system (see Sejdić and Finci; Azra Zornić, Samir Šlaku and Ilijaz Pilav cases against BiH before the ECHR, explained in Chap. 1). Constitutional system limits passive electoral right to Bosnian citizens who belong to one of the national minorities and the group of “the Others” and hinder the right to candidate for the BiH Presidency and the House of Peoples (PS BiH). Additionally, it limits passive electoral right to the members of constituent people if they live in the entity in which they factually form a minority (e.g. Serb in the Federation and Bosniaks and Croats in the Republika Srpska) and denies their right to vote for the member of their respective national group (e.g. Bosniak who is living in the RS can only vote for a Serb candidate). Even though the first judgement was delivered in 2009, there is not even a principle consensus among the political parties to change the Constitution and respective provisions of the Electoral Law. Since being a federal state, BiH has a rather complex electoral procedure. In concrete, when it comes to the BiH Presidency, two members (Bosniak and Croat member) are elected directly from the FBiH in one constituency, while the third (Serb member) elected directly from RS in one constituency (BiH Constitution, Art. V). In the election of representative in the House of Representative of the PA BiH, of the total 42 seats in the Federation elect 28 from five multi-member constituencies and in the RS 14 representatives from three multi-member constituencies. From the Federation, 21 members are elected directly by the proportional electoral system and the remaining 7 seats are compensation mandates. From the RS, 9 representatives are elected directly by the proportional electoral system and the remaining 5 are compensation mandates. Each entity then is one constituency where candidates are being elected on a basis of compensatory list (Sahadžić 2009, p. 12). Delegates in the House of Peoples are elected indirectly by the entity parliaments (BiH Constitution, Art. IV.1.). Representatives of the Parliament of the Federation consist of 98 members out of which every of three constituent peoples obtain at least four mandates. Most of the seats (approximately 65%) are elected within the 12 multi-member constituencies using proportional formula, while the rest is elected by the compensation system (between 23% and 27%) (Election Law of BiH, Art. 10.1.). FBiH House of Peoples which consist of 54 delegates (17 Bosniaks, 17 Croat, 17 Serbs and 7 belonging to the group of “the Others”) are elected in 10 cantonal assemblies (Election Law of BiH, Art. 10.10.). Similar solution applies when electing 83 representatives in the NA RS, with at least 4 representatives of three constituent people. Out of 83 mandates, between 23% and 27% are compensatory mandates, while the rest are distributed via 9 multi-member constituencies using proportional system. Council of Peoples of Republika Srpska is a parity-based so that each constituent people have

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the same number of representatives (8 delegates) and four representatives of the group Others (Art.11.10). The members of the Council are elected by their respective caucus in the National Assembly (Election Law of BiH, Art. 11.11). Ten cantonal assemblies have between 25 and 35 representatives (depending on the number of the registered voters) and are elected following the proportional electoral system (Election Law of BiH, Art. 13.1, 13.3.). Compensation seats are not applied for cantonal assemblies. The President and two Vice Presidents of RS are elected directly by voters registered to vote in RS where he/she can vote only for one candidate (Election Law of BiH, Art. 12.1). The candidate from each constituent people who receive the highest number of votes will be elected. Among these three candidates, one from each constituent people, the candidate receiving the highest number of votes will be elected president, and the two others will be elected Vice Presidents. Differently to the Republika Srpska, President and two Vice President of the Federation are elected indirectly by the FBiH Parliament (Election Law of BiH, Art. 9.13, 9.14.). At least one-third of the delegates of the constituent peoples’ caucuses to the House of Peoples nominates on joint slates three candidates, including one candidate among each constituent peoples. The FBiH House of Representatives then vote on one or several joint slates and the slate which receives the majority of votes will be elected if it gets majority of votes cast in the House of Peoples including majority of votes of each constituent peoples’ caucuses. Mandates for municipal councils/assemblies and city councils/assemblies are allocated under the proportional representation system. The number of members of a municipal council can be between 11 and 17 for municipalities having less than 8000 voters registered; between 17 and 25 members for municipalities having between 8000 and 20,000 registered voters and between 25 and 31 members for municipalities having more than 20,000 registered voters (Election Law of BiH, Art. 13.2.). On the other hand, the members of the city council are elected by the municipal councils which form the city. Each city council then elects a mayor and a president of the city council (Election Law of BiH, Art. 13.10. par 3). Having in mind the specific position of the Brčko District, the Election Law provides somehow different provisions. A citizen of BiH who is registered to vote for the Brčko District has the right to vote (1) for the members of the Presidency of BiH and the House of Representatives by casting the appropriate ballot in the entity for which the voter is a citizen; (2) in the elections of the entity of which the voter is a citizen and (3) in district election for the district assembly (Election Law of BiH, Art 18.1.–18.2). Members of the national minorities are entitled to representation in the municipal council and the city council in proportion to the percentage of their share in total population according to the last census in BiH (Election Law of BiH, Art. 13.14. par 1). Apart from political parties, registered association or other registered organization form of activity of the national minorities and a group consisting of at least 40 citizens who have the right to vote at minimum and who submit the names of candidate along with the application to participate in the elections are eligible to apply

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to participate in the election in order to fill the guaranteed mandate for the member of national minorities (Election Law of BiH, Art. 13.14.)

4.2  Legislative Decision-Making The distribution of competences between the central state and various lower levels of governance in BiH preconditions legislative decision-making processes. As stated in the earlier chapters, the Constitution grants the central state with a minimum level of competences, which is even unusual for a federal state structure (Savić 2003, p. 17). Few explicit powers were extended from the entity level to the state level under pressure from the international community leading to de facto amendments to the constitutional competences’ division. This had a significant influence on the law-making process on the state level, especially in the period from 2000 until 2006, as presented in the table below. The potential candidate status for membership in the European Union and the related adaptation of the legislative framework to the acquis communautaire might require the transfer of additional legislative powers to the state level. This aspect has been discussed in the context of constitutional reform debates in the last 10 years, but is not really anymore on the agenda since the last general elections in 2018. The stagnation of overall political reforms, which is taking place especially in the last two mandate periods, is also reflected in the number of laws approved by the PA BiH (Table 4.1). The law making on state level is rather complex. While the Constitution sets only basic elements on this matter, the rules of procedure of the two chambers describe the legislative decision-making as follows. Draft laws can be handed in to the chair of one of the chambers by any representative or committee of the House of Representatives, any delegate or committee of the House of Peoples, the joint committees of both chambers, the Presidency and the Council of Ministers (Art. 99, Rules of Procedure of the HoP; Art. 92 Rules of Procedure of the HoP). Draft laws should first be submitted to the House of Representatives, though the House of Table 4.1  Number of adopted laws by the parliamentary assembly of BiH

Mandate period 1996–1998 1998–2000 2000–2002 2002–2006 2006–2010 2010–2014 2014–2018

No of adopted laws 18 25 63 229 170 71 59

Reference: Author, based on monitoring reports of the centres for civil initiative

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Peoples reserves the right, to first discuss draft laws and other legal acts (Art. 96 Rules of Procedure of the HoP). In practice, almost all legislation has been first discussed and approved by the House of Representatives before it went to the other chamber. The chair of the chamber passes a draft law to the Collegium of the chamber who then forward the draft to the corresponding constitutional and thematic committees. Both committees must deliver their statement to the chair of the chamber within 15 days. The chair then puts the draft law on the agenda of the plenary session of the chamber. If a member of parliament or a committee of one of the chambers initiates the legislative decision-making process, the Joint Collegium of both Chambers has to assess whether the draft needs to be presented to one of the common committees (Art. 102–105, Rules of Procedure of the HoP; See detailed list committees of the two champers and of the Common Committees in the Sect. 2.2). The drafts of any law are also submitted to the Presidency and the Council of Ministers if the legislation did not originate from those institutions. After the committees have delivered their statements to the Collegium, the draft is discussed for the first time in the plenary session of the House of Representatives. The opinions of the committees are presented and form the basis for voting. In the case that the proposed law does not comply with the Constitution or the legal system, the committees may suggest a vote to reject the proposed law. The chamber may support this opinion or require a revised statement (Art. 106–107, Rules of Procedure of the HoP). If the law is accepted in the first reading, it enters the next phase of parliamentary procedure (Art. 106, Rules of Procedure of the HoP). Any member of parliament, party groups, the thematic committee in charge or the Council of Ministers may submit amendments proposals on which the thematic committee can consult and vote. The committee hands the law, including its statement, to the Collegium of the chamber, which sets the law on the agenda for a second reading. During this session, one of the members of the committee is appointed to “defend” the committee’s opinion in front of the plenary session. Prior to the session, the portfolio committee may publish the law publicly in order to incite public discussion (Art. 108–116, Rules of Procedure of the HoP). Unfortunately, this is happening very rarely. The second reading consists of discussion and voting on the draft amendments. The law is accepted when the two chambers adopt it with identical text. If the adopted legal text is different, an ad-hoc joint committee of the two chambers (six members, three from each chamber) is established to modify the text and resubmit it to the chambers for confirmation. The chambers’ Secretaries take care of the subsequent procedure (publication in Law Gazette). Generally, laws enter into force eight days after publication in the Law Gazette. Apart from regular legislative decision-making process, laws can also be adopted in a shortened procedure (Skraćeni postupak), or so-called emergency proceedings (Hitni postupak). While the shortened procedure reduces all deadlines by half for the committees’ and chambers’ work (Art. 126, Rules of Procedure of the HoP), emergency proceedings require voting to take place on the first version of the draft

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law. Amendments to draft laws cannot be made if a law is discussed in emergency proceeding. (Art. 127, Rules of Procedure of the HoP). Unfortunately, there is no analysis available on how often these mechanisms are being used. Most severe form of misuse of these procedures, were documented around the adoption of the laws on state budgets in emergency procedure, what was the case for example in 2015. Art. IV, Par. 3(d) of the Constitution sets the decision-making quorum for the adoption of a law by the PA BiH. The Constitution regulates that the representatives must attempt a legislative majority with a minimum of one-third of the representatives from the territory of each entity approving (entity veto). If this is not successful, the Chair and the Deputy Chairs deliberate with the goal of achieving a second vote within three days of the first vote. Besides that, Art. IV, Par. 3(e) states that a majority of the Bosniak, Croat and Serb delegates in the House of Peoples can declare a draft law as harmful for the vital interest of its people (vital interest veto). The entity veto instrument proved to have a very strong effect on the PA BiH. Two hundred and sixty nine laws of the five hundred and twenty nine discussed between 1997 and 2007 did not receive a parliamentary majority. One hundred and thirty six of them failed due to a veto by the Republika Srpska representatives; only twenty received a veto from the Federation. The often-criticized veto due to vital interest played a rather subdued role since it was used in the same period only four times (twice by Bosniaks and twice by Croats). This may be due to different procedural consequences. After a veto on vital interest, the legislative process continues with a mediation commission and possibly even involvement from the Constitutional Court. Conversely, the legislative process stops immediately after the use of an entity veto. Evidently, the Serbs used the entity veto as a substitute for the veto on vital interest, while the Croats could not make use of it due to the composition of the House of Representatives and the small number of Croat members (Trnka et  al. 2009). Former constitutional reform proposals from political parties and civil society were trying to address this challenge in decision-making. A significant majority of the proposals were going into the direction of reducing the competences of the House of Peoples and reducing the overall coverage of the two vetoes, aiming at ensuring more smooth law making. The state budget is submitted by the Presidency to the House of Representatives, subsequent to the Council of Minister’s proposal. Here, the same procedure used for regular laws is followed, but short deadlines are implemented to enable timely adoption. In practice, budgets are usually adopted delayed. In 2020, there has not been a budget law adopted until March 2020. Law making in the Parliament of the Federation is very similar to the state level, as both chambers of the entity parliament have an equal position in the political setup. In the Republika Srpska, the process is simpler. The Council of Peoples of the RS gets involved only in the case one of the clubs of the three ethnic groups deems that the law is against their vital national interest. Otherwise, laws are adopted once approved by the NA RS. On cantonal level, the process is also less complex, bearing in mind the one-chamber structure of the cantonal assemblies. The vital national interest veto exists also in the cantonal assemblies, while the assemblies of the two

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ethnically mixed cantons, Hercegovina-Neretva and Central Bosnia, apply higher majorities for the approval of laws, with the aim that none of the ethnic communities is overvoted. Overall, law making is not fully transparent. Even though the Council of Ministers has set up an online consultations’ platform, citizens and civil society organizations are using it rarely. One entity and even more on cantonal level, ­transparency is even less applied, having also in mind the very limited ICT opportunities of the cantonal governments and assemblies. As our analysis has shown, some of the cantonal assemblies do not even have its own web page and information is posted on the web page of the cantonal government’s page. Even though public consultations are foreseen in the existing regulation, law proposers at all levels of governance are not making a special effort to organize country-wide public consultations event, aiming at as broad involvement of interested groups. To conclude, public consultations are not efficiently used (European Commission 2019b, p. 20) For example, the Parliamentary Assembly has organized only each seven public consultations on draft laws in the mandate periods 2010–2014 and 2014–2018. In a country with rather limited population size this would not be an unachievable challenge. Finally, adopted laws are not always publicly available to citizens, as access to the Official Gazettes on the different levels of governance is not free of charge, leaving citizens only with limited information but great responsibilities.

4.3  Political Culture and Political Participation The political culture of BiH is determined, as it is truthful for any other country, by its specific historical circumstances. Today’s BiH citizens political participation is based on the legacy of the socialist period, the deep consequences of the 90s war, the rise of ethically divided democratic period and the persistence of traditional values that affect the participation of all citizens, especially of youth and women. The socialist period was characterized by economic growth but also by the fact that the state and a unique political party were in charge of providing all services to the citizens, thus strongly discouraging civil initiatives. In addition, the top-down organization of the state subordinated individuals to the collective, ensuring individuals always followed a leading figure. The shift to the democratic period after the 1992–1995 war deeply affected the state of affairs and the political culture of BiH. The idea of collectivism and “brotherhood” (bratstvo) was replaced by the rise of ethnic lines that divided the identities of Bosnian-Herzegovinians. In fact, according to the recent census, 96.64% of the population in BiH identify themselves as belonging to one of the three main religious groups in the country. In today’s BiH the trust relies not on the state or state institutions but on the ethno political parties and the religious groups. According to a survey published by the Sarajevo-based think tank Analitika in 2014, governmental and parliamentary

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bodies enjoy significantly less trust (between 22.1% and 25.7%) than do religious institutions (+50%) (Jusić and Ahmetašević 2013). Election after election the seats at the different parliamentary assemblies are shared widely by the three main ethnic parties (SDA, HDZ and SNSD) with a very low increase of the self-named multi-ethnic parties SDP (especially in Tuzla region) and Our Party (especially in Sarajevo area). Please consult for a more detailed information Sect. 5.1 on political parties. Moreover, the existence of an environment of pervasive nepotism, where party membership is almost a requirement to secure employment and some social benefits, there are huge incentives to “opt in” to the status quo. The need to depoliticize the use of public resources and bring an end to political nepotism was highlighted by many, including the European Commission in its Economic Reform Strategy (2019–2021) (European Commission 2019a). Criticism of pervasive apathy is also laid at the door of citizens. Indeed, only 3% of BiH citizens have participated in some form of broad political activity in the last 12 months (USAID 2018). The February 2014 protests reflected the public’s frustration with political leadership and wish to mobilize, but also highlighted the lack of mechanisms to channel this activism to influence the political scene. In fact, in the general elections half a year later the turnout was just above 54%, slightly lower than the previous election. In general terms, BiH youth remain unengaged and marginalized from political debate and decision-making. In terms of electoral participation, the 2018 elections saw a 51.6% voter turnout for 18- to 30-year-olds, which was slightly below the overall turnout average. Three out of four persons aged 16–30 claim not to be interested in politics. Regarding other forms of participation, such as membership of political parties or youth organizations, direct contact with politicians, or participation in public debates or online political discussions, youth involvement is generally low (Commission for the Coordination of Youth Issues BiH 2008). Women continue to be underrepresented in the executive and legislative branches at all levels of government, leaving them largely excluded from the decision-making process. Despite making up 41% of the candidates during the 2018 General Election, female MPs comprise less than 20% of the legislative membership across BiH (occupying between 6 and 30% of the seats at state and entity levels, including Brcko District) (data from Central Election Commission web page). At local level the situation is not better, only five out of one hundred and forty three mayors are women. It is true that the situation has significantly improved since the first democratic elections when just 2.3% MPs in the BiH House of Representatives were women as well as 2.4% in the NA RS and 5% in the FBiH House of Representatives (Gavrić and Maida 2015). From a strictly legal point of view, the situation when it comes to representation of women in the parliamentary bodies of BiH improved when the Law on Amendments to the Electoral Law of BiH introduced the provisions to ensure that at least 40% of the candidates on the electoral lists “are members of the less represented sex” (Gavrić and Maida 2015). These changes were introduced in 2013 and they suppose an increase by 10% on the previous existing quota. Additionally, another positive step into the same goal was the creation of the Club of Women Parliamentarians in the FBiH House of Representatives first and

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then in the House of Peoples, which main aim is to help women MPS to act together through lobbying their own political parties “in those laws of special interest for women”. On the other hand, the presence of women in the executive branch is also very limited even if the numbers have increased in recent years. BiH has not seen a women president in all the democratic period, neither Chairperson of the BiH Council of Ministers. In the mandate from 2014 to 2018 there were two women Ministers the same number as from 2018 with just two have been appointed to these positions. The cause of this is multi-faceted, but mostly is based on the predominance of patriarchal norms and stereotypes within political parties. Additionally, the lack of enforceability of quotas set in the BiH Law on Gender Equality plays a role on the underrepresentation of women at all levels of government. Finally, the repercussions of such a political culture and related developments on the stability and legitimacy of the political system are not to be underestimated. Although support for democratic values in the country is quite strong, it is continuously undermined by the contrasting political and territorial aspirations of the individual ethnic groups. To make matters worse, disillusionment and lack of confidence in political actors, as a result of endemic corruption, are increasing political disaffection and lack of trust in the democratic system. Therefore, the obvious impact of this rudimentary democratic political culture is especially high dissatisfaction, disenchantment and apathy, which was clearly manifested in the low turnout for the 2018 elections with only 53% participation, which has been consistently and slowly decreasing since the elections in 2010 (56% and 54%).

Chapter 5

Actors

In this chapter we will introduce the four main groups of actors in the political system: political parties, civil society, media and the international community, all shaping and influencing political developments and decision-making. Section 5.1 will provide you with an overview on the history development of the political party system after which the main political parties will be presented. After that the Sect. 5.2 on civil society will aim to provide an analytical explanation on the role and overall functioning of the civil society. Section 5.3 will present some of the main challenges, without trying to make an exhaustive list of the problems that media in BiH are facing nowadays. Finally, at the end we will introduce you to the main actors in the international community, explaining their current and historic role.

5.1  Political Parties1 The Constitution of BiH does not address the question of political parties, nor does a specific state-level law exist regarding this matter. As part of the BiH Council of Ministers Annual Work Programme for 2013, the Ministry of Justice developed a Draft Law on Political Parties but it was never submitted into parliamentary procedure. The only state-level legislation is the Law on Party Financing from 2012 and the Electoral Law of 2001. Political parties must have fifty (in FBiH), 500 (in RS) and 300 (in BD) founding members before registering as an association with the relevant municipal court (Stjepanović 2016, p.  6). All political parties undergo a strict and complicated registration and investigation process to be able to stand for election for any political office. For example, a political party needs 5000 signatures

1  If not differently stated, all data in  this chapter provided on  the  political parties was  taken from the web sites of the political parties. Links to the web sites of the political parties are listed in the bibliography.

© Springer Nature Switzerland AG 2021 D. Banović et al., The Political System of Bosnia and Herzegovina, https://doi.org/10.1007/978-3-030-54387-7_5

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to enrol in elections for the Presidency or state-level House of Representatives (Art. 4.1–4.25 Electoral Law). According to the Law on Party Financing, political parties can receive funding from the following sources: membership fees, donations, political party enterprises and rental of property. Moreover, parties receive financial support from the budgets from the state level, entities, cantons, Brčko District and local self-government units. State-level contributions for the most part (60%) are distributed in accordance with their election success, or to be more precise, by the number of seats in one of the two chambers of the Parliamentary Assembly. An affirmative measure has been introduced, when it comes to the allocation of 10% of the political party funding to political parties which have a gender balanced representation among their MPs (Art. 7, Law on the Financing of Political Parties). All items of revenue and expenditure must be outlined in a report submitted annually to the Central Election Commission. The Central Election Commission conducts also regular audits of political parties (Art. 10, Law on the Financing of Political Parties) and can impose sanctions in the case if and when a party misuses the funding they are awarded. The OSCE’s Office for Democratic Institutions and Human Rights in its latest election observation report for the 2018 General Elections proposed that the Electoral Law should be amended to prescribe proportionate and dissuasive sanctions for violations when it comes to party and campaign funding. A reasonable deadline for auditing and publishing all party reports and the audit conclusions should be established by the law or set by the Central Election Commission (ODIHR 2019). Development of the multi-party system starts with the decline of the one-party Socialist Yugoslav state in 1990. Constitutional amendments were introduced in July 1990, allowing the registration of new political parties. The Assembly of the Socialist Republic of BiH adopted in February 1990 a Law on the Association of Citizens, which prohibited the association based on nationality, but this law was declared unconstitutional by the BiH Constitutional Court at the end of March 1990 (Nešković 2013, p.  122). As a consequence, all major new political parties were formed on the basis of ethnicity following traditions practiced under Austrian-­ Hungarian rule during the early 20th century (Kasapović 2005, p.  77ff) but also during the Kingdom of Yugoslavia between the First and Second World War (Simović 2011, p. 334–337). The first parties to be registered were the Muslim (today Bosniak) Party of Democratic Action (Stranka demokratske akcije, SDA), founded in May 1990; the Serbian Democratic Party (Srpska demokratska stranka, SDS) founded in July 1990 and the Croat Democratic Union (Hrvatska demokratska zajednica, HDZ) founded in August of the same year. These three parties stood in the election campaign for the first multi-party elections in November 1990 and together obtained a total of 84% of the seats in the parliament. The other parties, mostly moderate and multi-­ ethnic parties, received only 16% of the seats. These parties were the Social Democratic Party (Socijaldemokratska partija, SDP), the Union of Reform Forces (Savez reformskih snaga), the Democrat Socialistic Union (Demokratski socijalistički savez), the Liberal Party (Liberalna stranka) and the Muslim-Bosniak Organisation (Muslimansko bošnjačka organizacija). Of all the opposition parties, only the SDP is still political relevant.

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A new nationalistic one replaced the old communist regime after the 1990 elections. The three nationalist parties formed the new parliamentary majority, characterized strongly by ethnopolitics. This led to almost immediate conflict when the status of Bosnia and Herzegovina within Yugoslavia was listed on the agenda of the parliament (Anđelić 2005; Pejanović 2005, p. 97). During the war, the three nationalist parties governed their own territories as quasi-states and were able to expand their power in the economy, army, police and media. Due to the highly complex situation, it was not possible to further develop political parties during war-time. In 1990, there were only three dominant nationalistic parties, yet today there is greater variety within the party system. As a result of intra- and inter-party conflicts but also of the development of new political movements, a number of new political parties were created since 1995. The exact number of active political parties varies from election to election. For example, after verification of the registration documents for the 2018 General Elections, the state presidency was contested by 15 candidates, while 37 candidates stood for the president of the RS. For parliamentary elections, lists of 22 parties and 6 coalitions appeared on the ballot for the BiH House of Representatives; 23 parties and 5 coalitions competed for the FBiH House of Representatives; and 21 parties, 6 coalitions and 4 independent candidates—for the RS National Assembly (ODIHR 2019). This offered voters a wide choice of candidates. Nevertheless, none of the major and political influential parties is run by a woman. Politics are still dominated by men (Gavrić and Maida 2015) (Tables 5.1 and 5.2). The Party of Democratic Action (SDA), founded by Alija Izetbegović, is the largest Bosniak party of Bosnia and Herzegovina. The party ideologically has its roots in the old Yugoslav Muslim Organization, a conservative Bosniak party in the Kingdom of Yugoslavia. Since the beginning of the war, SDA has always been a member of the central state government, with the exception of the period of the Alliance for Change (2000–2002) and from 2011 until 2015. In December 2004, the party was granted observer status in the European Peoples Party. During his time as Chairman, Alija Izetbegović achieved equal legal status for the three constituent peoples in the entirety of Bosnia and Herzegovina through a constitutional complaint (see Chap. 1). One of the long-term objectives of the party, as propagated, is the centralization of the country and the abolishment of the Republika Srpska, which according to the party, is a result of genocide and expulsion. The party advocates constitutional changes and hence strengthening central state institutions. Former Presidency member and son of Alija Izetbegović, Bakir Izetbegović, leads the party since 2014. He succeeded Sulejman Tihić, party president from 2001 until 2014, which has undertaken several reforms and acted as a moderate politician, especially in the context of constitutional reform discussions (Topić 2007, p. 39). By 2009 a clear split was evident in the SDA: one wing was led by the reformist Tihić, another by Bakir Izetbegović. Once Bakir was elected to the state presidency in 2010, however, the tide turned definitively in his favour. The SDA increasingly began to affiliate itself directly with Turkish President Recep Tayyip Erdogan’s AK Party. The AK Party was recognized by Izetbegović as a model of what SDA should become—an Islamist party with a modernist bent. Due to poor health, Tihić was

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Table 5.1  Distribution of seats in the state-level house of representatives Party/coalition A-SDA DF DNS DNZ BiH HDZ (1990)a HDZ BiHa HSP KCD BiHb NS RzB Our Party PDP SBiH SBB BIH Savez za mir i progresc SDA SDP SDS Slogad SNSD Social Democrats BiH SRS Združena listae Other

1996

8

1998

6

2000

2002

2006

2010

1

1

5

2014 1 5 1

2018 1 3a 1

5

1 1 2 3

1 1 1 3 1

1 4

5

1

1

1

2 6

1 8

1 2 4

1a

2 2

4

2

17

2 5

2 2 19 9

4 4 4

8 9 6

10 4 5

9 5 2

7 8 4

10 3 5

9 5 3

1

3

7

8

6

6

2

0

1

3

2 2 2 0

3

2 5

3

Reference: www.parlament.ba a In coalition with one or several smaller parties b KCD BiH—coalition between SDA, SBiH, liberal party BIH and civil-democratic party c Coalition of SP RS; SNSD, social liberal party of Republika Srpska (SLS RS) and the unified left d Coalition of SNS, SP RS and SNSD e Coalition between SDP, Croatian Peasant Party (HSS), Republican Party, Muslim-Bosniak Organisation and Union Bosnian-Herzegovinian Social Democrats (UBSD)

soon pushed out, enabling Izetbegović to take full control. Tihić died at the peak of the election campaign in 2014 and Izetbegović won a second mandate as a member of state presidency (Balkanist 2015). Despite the fact that the SDA remains the most important Bosniak political party, it forfeited exclusive representational claim in the post-war years in areas where Bosniaks are the majority due, in particular, to the strengthening of the Party for Bosnia and Herzegovina (SBiH) from 2002 until 2010, the Social Democratic Party (SDP) continuously and of Party for a Better Future (SBB) and Democratic Front (DF) since 2014. The Party for Bosnia and Herzegovina (Stranka za BiH) was founded in 1996 and can be seen as one of the first split over parties of SDA. The SBiH members of parliament voted against constitutional reform in April 2006, claiming that they did not want to support “cosmetic” changes and demanded greater modifications. The

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Table 5.2  Orientation of the Political Parties and their most important Voter Base Party name DF HDZ BiH

President Željko Komšić Dragan Čović

Our party PDP SBB BiH

Predrag Kojović Branislav Borenovič Fahrudin Radončić

SDA

Bakir Izetbegović

SDP BiH SDS

Nermin Nikšić Mirko Šarović

SNSD

Milorad Dodik

Ideology Social-democratic Croat nationalistic National conservative Socio-liberal Bosniak nationalistic Conservative Bosniak nationalistic Social conservative Islamic democracy Social-democratic Serbian nationalistic National conservative Serbian nationalistic Nominal social-democratic

Ethnic orientation Multi-ethnic Croatian Multi-ethnic Serbian Bosniak Bosniak

Multi-ethnic Serbian Serbian

Reference: Džihić (2018), p. 107

Former Chair of the party, Haris Silajdžić, primarily promoted the abolishment of the Republika Srpska, leading the party to victory during the parliamentary elections in 2006 and becoming even Presidency member (Marić and Krause 2006). However, during the local elections in 2008 the party was unable to maintain its dominant position (Oslobođenje 2008) and lost the majority of its influence after the elections in 2010. Today the party is politically irrelevant, without representation in the state-level parliament but it should be remembered for its important role in preventing the adoption of the so-called April package. The Union for Better Future (Savez za bolju budućnost, SBB BiH) is a right-­ wing, conservative political party with Bosniak voters base, founded in 2009 by the Bosniak media oligarch Fahrudin Radončić. Immediately in the elections 2010 the party has positioned itself as the second biggest Bosniak political party and it has maintained this position until today. As DF, the party is very much based on the cult of the party leader. Even though Radončić repeatedly before the 2018 General Elections stated that he does not intend to form a coalition with the corrupt SDA, he did not keep his promise. As DF, SBB is now a coalition partner of the biggest Bosniak party, securing the SBB leader a seat in the Council of Ministers (Balkan Insight 2019a, b). The Social Democratic Party of Bosnia and Herzegovina (SDP BiH) has been for a very long time the only big party that claimed to be multi-ethnic. It is the successor of the Communist Party. Its former chair, Zlatko Lagumdžija, propounded the Alliance for Change (2001–2002), a group of several small parties intending to work together to reform the country, though the Alliance did not lead to the new beginning they desired. SDP BiH tries to promote a democratic, multi-ethnic, and multi-religious country and gives highest priority to programmes relating to economic and social policy (Topić 2007, p. 40). These ideas are not yet widely sup-

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ported, and national issues still dominate every-day politics. Therefore, the SDP was the largest body of opposition, until they managed to win the parliamentary elections in 2010. Nevertheless, they were not able to fulfil the hopes of the citizens as they made significant compromises with nationalistic parties, resulting with Željko Komšić, the Croat member of the Presidency, leaving the party and founding the Democratic Front. SDP BiH did not succeed to repeat the same election results in 2014 and long-time party president Zlatko Lagumdžija had to resign. Since 2014 the party is in opposition on state and entity level, run by Nermin Nikšić. The party is associated with the Party of European Socialists. The Democratic Front (Demokratska Fronta) was founded in 2013 by Željko Komšić, at that time Croat member of the Presidency, in protest to the coalition of SDP with nationalistic parties. The fundamentals of the party are mostly former SDP member and political activists from the political left. Željko Komšić was followed by other SDP members, leaving the party and joining him. Declaratively, the party is a multi-ethnic party, but without any base in the Republika Srpska and the Croat dominated part in the Hercegovina and Central Bosnia. Also, the majority of its MPs are ethnic Bosniaks. Today, the party lives predominantly on the old fame of the party leader, who managed to get re-elected to the Presidency for a third term in 2018. For a second time in row, the party is also in coalition with SDA, beside strong promises of the party president that this will not be the case after the 2018 General Elections (Balkan Insight 2019a, b). The Our Party (Naša Stranka) is one of the rare political parties which was not created as a split over from existing political parties, but as a totally new political movement. The party was founded in 2008 by a group of intellectuals grouped around the Oscar winning film maker Danis Tanović. What used to be a small, regional party in the Canton Sarajevo and few municipalities around the country, is today a relevant player on the political scene in the Federation. Since the 2018 General Elections the party is also represented in the state-level parliament. Ideologically the party self-identifies as socio-liberal and multi-ethnic, being part of the Alliance of Liberals and Democrats in Europe. It is the only bigger party in the Federation which is run by a Serb, Peđa Kojović, and the only party which has more female then male MPs in the House of Representatives of the Federation. The Croat Democratic Union (Hrvatska Demokratska Zajednica, HDZ BiH) claims the exclusive right to protect Croat interests in BiH.  At the beginning of 2006, however, HDZ BiH had temporarily to give up that title as new actors entered the Bosnian-Croat political landscape. Due to issues within the party, the exclusion and resignation of several high-level members and the indictment of Chairman Dragan Čović on charges of abuse of power, the party lost the support of the Bishops Conference of the Catholic Church in BiH and temporary of its sister party in Croatia (HDZ Hrvatske). Consequently, the party’s membership dwindled. Local elections in 2008 and general elections 2010, however, once again confirmed HDZ as the strongest Croat party. This has been also reassured by the election results of the 2014 and 2018 General Election results. The HDZ is also the cornerstone of the Croat Peoples Assembly (HNS), a platform which brings together all Croat parties and representatives in  local level, cantonal and entity representative bodies, re-­

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85

established in 2011. In the last two mandates, HDZ is the only political party which holds three ministries in the Council of Ministers. Similar to the SDA, the HDZ has observer’s status in the European People Party. Dragan Čović is party president since 2005. The second strongest political group of Bosnian Croats is the Croatian Democratic Union 1990 (HDZ 1990). This party split from HDZ BiH in 2006, not being ready to vote for the April package for constitutional reform. It played a small role in political life until 2018, opposing the full dominance of the HDZ BiH. Today, the party is not represented in the state-level parliament and is political invisible and irrelevant. The Serbian Democratic Party (Srpska demokratska stranka, SDS), founded by Radovan Karadžić, was the dominant Serb political party from 1990 until 2006. After the failure of the parliamentarian majority of SDS-HDZ-SDA in 1991, the SDS left the central state parliament and began constructing a separatist Serbian state. At that point, the party was an all-encompassing movement with the support of the majority of the Serbian population, a trend that continued in post-war years. Yet internal conflicts eventually led the party to fragment. Ever since the re-election of Milorad Dodik (SNSD) as the Prime Minister of the Republika Srpska in 2006, the SDS relinquished the exclusive right to protect Serbian national interests. The attempt of former Chair Dragan Čavić to reinvent the party as a modern people’s party by cleansing it of its war-time cadre did not prove successful. Today the SDS is the key opposition party in Republika Srpska, a status confirmed in the 2018 general election. Regularly, on the state-level SDS collaborates with SNSD, putting the interests of Republika Srpska first whenever needed. Mirko Šarović is running the party since 2019. The strongest party in the Republika Srpska is the SNSD, the Alliance of Independent Social Democrats (Savez nezavisnih socijaldemokrata). The party was founded in 1996 by a group of opposition politicians in the NA RS. It evolved as one of the few political parties unburdened by the war crimes. Its Chairman, Milorad Dodik, assumed the responsibilities of the government chairperson from 2005, following his initial term as Prime Minister from 1998 to 2001. From 2010 until 2018, Dodik was the President of the Republika Srpska and since 2018 he is a member of the state-level Presidency. The SNSD strongly advocates the preservation of the entity, its central institutions, and competences. On the platform of planning to hold a referendum on independence, the party mobilized Serbian voters leading to regular victories in the 2006, 2010, 2014 and 2018 elections. The party governs in cooperation with several smaller parties. Additionally, party members include Bosniak, Croat, and the Others representatives in the entity body. As a result of his incontestable position, Dodik has been confrontative towards the EU and OHR. In January 2017, the U.S.  Department of the Treasury’s Office of Foreign Assets Control imposed sanctions on Milorad Dodik. The SNSD was expelled from the Socialist International in 2012 for continuing to espouse a nationalist and extremist line. Ideologically, the party developed into the opposite direction and on several occasions, representatives of the SNSD signed cooperation agreements with representatives of Putin’s United Russia. All of this will not prevent the party to continue being the leading party in the Republika Srpska for four election rounds in a row.

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In addition to the large parties mentioned above, there are several smaller parties including: the Movement of Democratic Action (PDA), People and Justice (NiP), Independent Bloc (NB), Party of Democratic Activity (A-SDA), Democratic People’s Union (DNS), the Party of Democratic Progress (PDP), Peoples Democratic Movement (NDP), the Socialist Party of Republika Srpska (SP RS), DEMOS and United Srpska. These parties receive some votes in each election but have not been able to make a name for themselves. Most political parties, the larger ones in particular, can be described as “charismatic leader organisations” (Jovanović 2002, p. 130). Orientation towards a leading figure is a legacy from Communist times, and is especially evident when a new party is in the process of being formed. Today, the parties are more characteristic of patronage associations. Considerable structural changes took place following the resignation of Radovan Karadžić in 1996 and Alija Izetbegović in 2000. A strong cult has shaped around the Chairman of the SNSD, Milorad Dodik, who has been designated as the new vožd (Russian: leader, вождь) of the Republika Srpska (Dani 2008). The large parties are able to maintain their membership due to the fact that economic resources, industry, energy and party media are under their control. There is no institutionalized process for intra-party programmatic discussion; decisions are made on behalf of the party exclusively by the party leader. The absence of a culture of discussion has caused most of the rifts. In the case of diverging opinions there is no attempt to achieve a compromise. Instead, new small parties form with new leading figures. However, these splinter parties rarely evolve into a successful opposition, and usually fail to have significant political influence, as we could see on the example of SBiH or HDZ 1990. Almost all major political parties presented above have been linked to media reports on high-level corruption cases, including the latest case regarding the forming of the new government coalition in Canton Sarajevo at the beginning of 2020 (Balkan Insight 2020). Richter and Wunsch assign political parties a central role in the state capture of Bosnia and Herzegovina (2019). The 25 years after Dayton have also confirmed that the current political setting does not leave to much space for multi-ethnic parties. Multi-ethnic alternative political movements are the exception and without country-wide relevance (Table 5.3).

5.2  Civil Society and Citizens Interests Civil society groups and organizations, and non-governmental organizations are often used synonymously, making the distinction between them unclear. Moreover, according to the BiH legal framework, NGOs do not exist as a category, further complicating analysis of the civil sector. In this sub chapter, we will analyze the legal definition of those civic organizations in BiH, their main characteristics and developments as well as their relation with the state authorities. Bearing in mind the federal structure, there are several laws that regulate non-­ governmental/non-profit organizations, like the Federation Law on the Associations

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87

Table 5.3  Representation of political parties in the three major parliaments in March 2020 Party/ House of representatives House of representatives National assembly of coalition PA BiH (42 members) parliament of FBiH (98 members) the RS (83 members) A-SDA 1 3a Demos 4 DF 4a 10a DNS 1 7 HDZ 2a (1990) HDZ BiH 5a 16a NDP 4a NiP-IB 3 Our party 3 6 PDA 3 PDP 2 9 SBB BIH 2 8 SDA 9 27 SDP 4 11 SDS 2 13a SNSD 6 28 SP 3 SP RS 4 Together 3 for BiH United 4 Srpska Other 3 9 4 Reference: Author, based on data from the web pages a In Coalition with one or several smaller parties

of Citizens (1995), the Law on Associations and Foundations in Republika Srpska (2001), the Law on Humanitarian Activities and Organizations of Bosnia and Herzegovina (1998) and the BiH Law on Associations of Citizens and Foundations (1998/2011). As it can be concluded from those laws, an NGO can be registered either as a citizen association or as a foundation. Among citizens’ associations we can find professional associations, trade unions and sports clubs, as well as humanitarian, social and educational groups. The main development of civil society initiatives began with the economic and political crisis of the 1980s, coalescing demonstrations of popular dissent with the regime, which by then had begun to show some symptoms of fragility, allowing for the first manifestations of civil society. However, shortly after, the war in the 90s was described by Mary Kaldor as “a war against civil society” (Kaldor 1999) since the three ethnic groups won most of the political leverage with the results of the first

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free multi-party elections and it spelled the defeat of the BiH civic experience. The largest emergence of NGOs took place in the immediate post-war period with the primary aim of distributing international aid. NGOs were the only segment of civil society whose numbers increased during this period, as other civil society organizations such as trade unions and professional associations almost disappeared. Today’s civil sector in BIH can be grouped in two types of organizations (Papić et al. 2011), as follows: a. Post-Dayton new professional NGOs. This group is professionally managed with a high level of organizational, strong technical and communication capacities, access to international funds and professional training, but has a weak membership base and lack widespread public support. b. Traditional civil society organizations. This group has no organizational, management or communications training, does not have access to international funding or training, is very dependent and greatly influenced by government structures and officials, but has a large number of members Within this group the following subcategories may be found: –– Special interest organizations and associations are independent from the domestic institutions of government and international donors, including trade unions. These associations rely on membership to finance the work of the association. They are exclusively focused on the interests of their own membership, while general well-being is neglected; –– Religious charities, in particular Catholic and Islamic charities such as Caritas and Merhamet; –– Radical ethnic-nationalist movements are found in the margins of society and are not organized. They have some characteristics of special interest organizations, though some are also well-organized nationalist movements closely connected with ruling nationalist parties. The relationship of those civil society organizations with the state institutions is quite diverse in BiH (Grünther-Đečević 2018). Therefore, for example, at the level of public consultations, even the legislation is quite different across levels of government, this is a clear consequence of the lack of a BiH strategy for cooperation with the civil sector. One of the positive exceptions is the state-level mechanism for consultations through a web platform that was launched in 2016. A bit later, in 2017 the Council of Minister ratified a Charter for cooperation with the civil society organizations; however, this charter remains not operational. Another very important matter on the relation of the public institutions and the civil society is the distribution of public funds, which is not fully transparent or systematic (European Commission 2019b), opening the door for nepotism and control of the civil sector. The majority of these funds go to sport clubs and organizations related to the last war, such as associations of veterans, disabled soldiers and families of fallen soldiers. Additionally, in circumstances where the Official Development Assistance (ODA) is continually decreasing in BIH, the efficient and effective use of funds as

5.3 Media

89

well as the establishing of mutual partnership is of crucial importance for the success of civil society programmes (Ministry of Finances and Treasury of BiH 2018). Moreover, and despite significant investments in capacity-building programs, particularly by international institutions, CSOs continue to have limited organizational capacities. Institutional development is hampered both by significant staff turnover and limited resources to train new staff, as scarce funds generally go towards project implementation. Even if CSOs have defined missions and target groups in their statutes due to their poor financial sustainability, CSOs often change their fields of work and target groups in response to donors’ priorities (USAID 2018). In recent years we have seen how several traditional human rights organizations such as Women for Women (Žene ženama) or BiH Helsinki Committee have unfortunately closed their doors. CSOs continue to have access to funding from a variety of international donors, including the EU, USAID, the Swedish International Development Cooperation Agency (Sida) and several embassies. These donors support programs in such fields as democratization, organizational capacity building and environmental protection. However, CSOs need to compete with international organizations such as the OSCE or UNDP who often receive direct funding from donors. It is also very relevant to mention that CSOs continue to provide social services, including safe houses, day-care centres for persons with mental difficulties, and day-care centres for homeless children, in some occasions in parallel to the social welfare system of the country. Having all of the above in mind, it is not a surprise that one of the main characteristics of BiH civil society is its overall weakness and inability to hold the state accountable. There are some exceptions though, as some informal coalitions of NGOs have strong advocacy capacities, as it is shown by the number of initiatives that have contributed to the adoption of important laws and policies in recent years.

5.3  Media BiH has an adequate legal framework guaranteeing the freedom of the media and the freedom of expression, but there exists a stark disconnect between the technical legal framework covering media freedom and the reality of BiH’s media landscape. The Constitution of the Federation did not initially contain any reference to media. However, following the adoption of the BiH Law on the Public Broadcasting Service in 2002, the FBiH Constitution was amended to include public information as one of the national interests of the constituent peoples. The RS Constitution is the only constitution that precisely prescribes and guarantees the freedom of media (Article 26). Generally, responsibility for media issues lies with the entities. The Federation has further decentralized this authority, delegating it to the cantons. Thus, there are 14 different regulators and rules within the territory of BiH.

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From the beginning of the democratic period in BiH there has been a chaotic growth in numbers of media outlets as a result of several factors including the “political polarization and fragmentation of the post-war society; an absence of rules and regulatory frameworks; direct government involvement in the broadcasting sector and significant donor support to media outlets throughout the country” (Jusić and Ahmetašević 2013). A great variety of print media exists. There are five large daily newspapers (Oslobođenje, Dnevni Avaz, Glas Srpske, Nezavisne novine and Dnevni List) that are part of a highly saturated media landscape that counts on 138 newspapers and magazines (BiH Press Council). Yet, a considerable amount of press comes from neighbouring countries. Publishing companies from Serbia and Croatia issue volumes partially dedicated to BiH: these include Večernji list and Slobodna Dalmacija from Croatia, as well as Blic and Večernje novosti from Serbia. Another new source of information that is rapidly increasing its popularity among the BiH population is the use of web portals. According to the Communications Regulatory Agency as of 2017 there were 700,578 internet subscribers (compared to 42,000 in 2000) and they estimate there were 3.06 million internet users, accounting for an internet usage rate of 86.77% (CRA 2019). Additionally, the electronic media sector remains fragmented. According to the Communication Regulatory Agency (CRA) (Regulatorna agencija za medije) 51 licence holders for television broadcasting are operational, of them 6 belong to the Public Broadcasting System and 45 are in private hands. When it comes to radio 147 stations are operational, of them 3 are registered as non-profit radio stations (CRA 2019). According to the 2020 BiH Law on the Public Broadcasting System, the public broadcasting system in BiH comprises three broadcasters: Radio and Television of BiH (BHRT), Radio and Television of FBiH (RTV FBiH) and Radio and Television of the RS (RTRS). One of the constant demands of the Bosnian Croat political parties are the creation of a public Croat broadcaster as they feel their interests are not represented in the RTV FBiH. Some of the provisions of the Law on the BiH Public Service Broadcasting System have never been fully implemented. One such provision was the formation of the Corporation of Public Broadcasting Services of BiH, a fourth component in the system, which still has not been created. The Corporation was intended to foster close cooperation and sharing of technical and financial capacities between the three broadcasters. Currently, the level of their cooperation is low, with the three broadcasters being in competition with each other rather than part of the same system. Unfortunately, it has been concluded by several international organizations that the independence of the three public service broadcasters is not ensured. The two entity public broadcasters continued to be exposed to political influence, particularly due to the politically controlled steering boards (European Commission 2018). Additionally, and “because of the lack of support from the ruling ethnopolitical parties, the state-level public broadcaster BH Radio-Television (BHTV) faced existential financial problems” (BTI 2018). One of the main challenges to the public media is indeed the ownership. As such one of the recommendations of the chapter related to media in the European Commission Analytical Report published

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in 2019 was the need to adopt legislation on media ownership transparency and establish a detail register of media ownership to enable systematic insight into ownership structures, thus preventing the risk of hidden media concentration” (European Commission 2019b). The need for transparency on the public investments in media is especially relevant at the level of municipal public broadcasters that are not part of the Public Broadcasting System, as the local government funds can “often (be) under strong political pressure and influence” (European Commission 2019b). Moreover, the 2019 Expert Report on Rule of Law issues in Bosnia and Herzegovina published by the EU outlined that in order to ensure freedom of expression and media there is a need to ensure “financial sustainability of the public broadcasting system” (Priebe 2019). When it comes to regulation of media there are two main actors: The Communications Regulatory Agency (CRA) and the Press Council (Vijeće/Savjet za štampu). CRA has the power to regulate the audio-visual media market, and enjoys political and institutional independence, but unfortunately is not fully financially independent. The Press Council operates as a self-regulatory membership-based body for both online and printed media outlets. The Press Council issues recommendations based on the media code but it has no authority to impose the implementation of the fines interpose to those media outlets that do not comply by it. Lastly, the BiH Law on Communications advances the social role of media and the principles of freedom of expression and diversity of opinion as well as standards pertaining to professional conduct, non-discrimination, fairness, accuracy and impartiality. What is more, the BiH Law on the Protection of Rights of National Minorities requires public broadcasters to provide special programmes for members of national minorities as well as content in minority languages, but very few actually do so. It should be mentioned here that RTRS and BHRT have television and radio programming related to the national minorities, while the other the Federation public services do not have any similar programmes, using as an excuse their financial limitations and lack of staff capacity. At present only two national minorities in BiH—Roma and Jews—have representative magazines, the former being available in electronic form (Džihana 2012). After media ownership transparency, the second biggest challenge to media freedom in BIH is the lack of safety of journalists. According to several human rights organizations attacks on journalist continue at high rate nowadays (HRW 2019). Physical attacks, intimidation, death threats are recurring manners of stopping journalists to do their job. According to BH Journalist Association just in 2018, 58 cases of violation of journalists’ rights were recorded. However, the public institutions are not systematically tackling this issue, nor being effective in ensuring protective measures (European Commission 2019b). The EU Expert Report on Rule of Law specifically recommended the need to an “appropriate judicial follow-up to cases of threats and violence against journalists and media workers” to guarantee freedom of expression and media. The third challenge to the work of media is the judicial and political pressure. Even though defamation was decriminalized in 2002, it has been used extensively by politicians to intimidate journalists. In 2019 alone more than 500 cases of defa-

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mation have been filed within the BIH court system. The effect of this situation is as expressed by the European Commission as “a chilling effect on freedom of expression and pushing journalists towards self-censorship” (European Commission 2019b). Additionally, the RS Law on Public Peace and Order, adopted in February 2015, presents a particular challenge. The law expands the definition of “public place” to include the internet and social networks but could be interpreted to include different types of media, including electronic media. Moreover, the new law determines “insulting another person on political, religious or ethnic grounds” to be a minor offence. Insults are vaguely defined within the legislation and could cover statements made within political speeches or debates on matters of public interest. It is up to the police, based on subjective assessment, to decide whether certain behaviour constitutes an insult. The expansion of the notion of “public place” and the vagueness of the law was strongly criticized by local NGOs, international organizations and the OSCE Representative on Freedom of the Media. According to Civil Rights Defenders Report (CRD 2020), the respective law is seen as a big step towards possible censorship and self-censorship, and is in conflict with freedom of expression. In conclusion, in spite of the basic legislative principles of freedom of expression and media are in place the implementation of them is relatively poor, but those are not an exhaustive list of the main challenges to media in BIH. According to IREX, an international non-profit organization fostering independent media, negative trends in the country’s media sphere continued in the last years. Among the main problems IREX identified are “a low level of professional media standards, low salaries and irregular pay of journalists that allows for political pressure and fosters self-censorship, non-transparent media ownership, a corrupted relationship between media and advertisers in a shrinking advertisement market in which governments and public companies make up an increasing share, non-transparent government funding for media, and regular civil libel suits against critical media outlets and journalists” (IREX 2018).

5.4  International Community2 BiH is one of the few states in the world in which the international community played a political-legislative role of great importance. International actors were not fully external factors influencing the political system itself, especially because they are integrated into the political structure of the state. The DPA was responsible for envisaging international actors as taking over important positions in BiH institutions and playing an active role in the political system.

2  If not differently stated, all information in  the  Sect. 5.4 are taken from  the  official web pages of the international stakeholders mentioned here.

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The main problem deriving from this situation was the lack of local ownership of political developments and the political agenda of BiH. However, the international community’s engagement in BiH has progressively changed over the past 20 years, shifting from the initial state-building approach to a less interventionist attitude nowadays. After a string of successes and the growing belief that domestic ownership was required, the international community came to believe that a transition from “the push of Dayton to the pull of Brussels” could be achieved and that the EU’s “soft power” approach would provide the country’s leaders with enough incentives to transform them into positive agents for change. The following section of this text presents the manner and framework of action of the international actors whose work was, and still is, important to political developments in BiH.

5.4.1  O  ffice of the High Representative and the Peace Implementation Council The OHR is an ad-hoc international institution responsible for monitoring the implementation of the civilian aspects of the DPA. The mandate of this institution arose from Annex 10 of the DPA, which states its competences as follows: –– Monitor the implementation of the peace settlement; –– Maintain close contact with the parties to the Agreement, to promote their full compliance with all civilian aspects of the Agreement; –– Coordinate the activities of civilian organizations and agencies in Bosnia and Herzegovina to ensure the efficient implementation of the civilian aspects of the peace settlement. The High Representative shall respect their autonomy within their spheres of cooperation while, as necessary, providing general guidance about the impact of their activities on the implementation of the peace settlement; –– Facilitate, as the High Representative judges deem necessary, the resolution of any difficulties arising in connection with civilian implementation; –– Participate in meetings of donor organizations; –– Report periodically on progress to the United Nations, European Union, the USA, Russian Federation, and other interested governments, parties and organizations; –– Provide guidance to the United Nations International Police Task Force. The DPA declares the High Representative as the final authority responsible for interpreting the agreement on the civilian implementation of the peace settlement. Nevertheless, since the adoption of this document, the tasks of the OHR have changed according to the developments of political life in BiH, as well as according to the decisions of the Peace Implementation Council (PIC). One of the most remarkable and innovative resolutions affecting the work of the OHR was the adoption of the so-called Bonn powers, which stemmed from the PIC

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Conference in Bonn, Germany in December 1997. These powers were built upon the previously mentioned Annex 10 of the DPA and were thought to empower the OHR to be able to remove from office those public officials who violate legal commitments and/or the DPA, as well as to impose laws as he/she understands are needed in order to further the development of BiH when BiH institutions fail to do so. In the context of this publication, it must be emphasized that the High Representative imposed 112 laws within the legislative competences of the PA BiH during the period from 1996 to 2007. These interventions pertained mostly to the field of judiciary reform, followed by the fields of citizenship, personal and travel documents, public property, privatization, the electoral system and telecommunications, with the HR acting as a legislator. Additionally, it is worth mentioning that from 1997 until August 2012, the High Representative dismissed over 200 officials using the Bonn Powers in approximately 900 cases. The use of the so-called Bonn powers by different High Representatives has solved some political blockades through the imposition of a series of laws relating to varying fundamental areas, such as a single currency, the anthem, the flag and the election law. However, this had a second implication: all of these decisions were made by a body that was not elected by Bosnian-Herzegovinian citizens, without consultations with the public. This undermines the democratic legitimacy of the OHR and thus the democratic capacity of the PA BiH. It must be stated that until 2006, the Bonn powers were used increasingly by each successive High Representative and never again since then. Actually, when it comes to official decisions of the OHR they were used quite regularly especially on the period from 1999 to 2004, under the commandment of Petritsch and Ashdown as High Representatives, and Inzko’s office has not taken any decision since 2014. Those decisions have been primarily on state symbols, the judiciary, removal/suspension from office of state officials, property laws and war crimes processing. The PIC was established at a conference held in December 1995, after signing of the DPA, and its main purpose was to mobilize international support for the Agreement. The PIC was founded by 55 member states and agencies and has a fluctuating number of observers supporting the stabilization and development of BiH through different means: financially, politically, providing troops for the international military forces and as consultants on various subjects. During this conference, a Steering Board for the PIC was established, which works under the leadership of the High Representative. The members of the Steering Board are: Canada, France, Germany, Italy, Japan, Russia, United Kingdom, the USA, the Presidency of the European Union, the European Commission and the Organization of the Islamic Conference, represented by Turkey. The aim of the Steering Board is to provide the High Representative with political guidance. This Steering Board meets weekly in Sarajevo with Ambassadors, and three times a year with political directors. The year 2006 saw the adoption of a strategic decision to withdraw the High Representative from the BiH political system (ICG 2009). Although the closure of the OHR was expected soon after, this has not yet occurred. At their meeting in Brussels on the 26th and 27th of February 2008, the Political Directors of the Peace Implementation Council Steering Board set out the requirements that need to be met

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by BiH authorities prior to the closure of the OHR, known as the “5 plus 2” plan. The objectives that need to be met by the BiH authorities prior to OHR closure are: –– Acceptable and sustainable resolution of the issue of apportionment of property between the state and other levels of government; –– Acceptable and sustainable resolution of defence property; –– Completion of the Brčko Final Award; –– Fiscal sustainability (promoted through an Agreement on a Permanent ITA Co-­ efficient methodology and establishment of a National Fiscal Council); and –– Entrenchment of the rule of law (demonstrated through the adoption of a National War Crimes Strategy, passage of the Law on Aliens and Asylum, and adoption of a National Justice Sector Reform Strategy). In addition to these objectives, the PIC Steering Board agreed that additional two conditions need to be fulfilled prior to OHR closure: –– Signing of the SAA and –– A positive assessment of the situation in BiH by the PIC Steering Board based on full compliance with the Dayton Peace Agreement. As of today there is still a long way ahead in order for BiH to achieve the completion of the 5+2 agenda. According to the OHR itself, there is no progress to report with regard to achieving the first objective and concerning the second there has been considerable progress in the FBiH but not at all in the RS area. Actually, 30 defence locations have been registered to date under the ownership of BiH State, and few are still pending. However, the same process has been completely blocked by the RS authorities. The OHR remarks that “Republika Srpska continues to deny not only the State-level ownership rights over State and defence property, but even the legal capacity of Bosnia and Herzegovina to be subject of those ownership rights” (OHR 2019). Regarding the third objective, “While the steps taken by the Brčko District leadership [...]concerns remain that progress may become a hostage to politics, especially as the 2020 local elections approach”. The OHR has raised concerns on the implementation of the 4th objective regarding the attempts to undermine the single indirect tax system and its state-level institutional structure, explicitly the announcement of the potential withdrawal of the RS from the agreement between the entities to transfer the competence for indirect taxation to the State. That creates “financial uncertainty of the State institutions stemming not only from the long-­ standing State budget freeze that directly affects their performance and ability to fully meet all of their obligations, including international obligations, but also from the availability of their funding, due to political attempts to starve the State-level institutions, indicates a serious rollback of one of the most important reforms made subsequent to the General Framework Agreement in Bosnia and Herzegovina”. Finally, on the fifth objective implementation, many challenges remain to date on the Rule of Law. The lack of a renewed National War Crimes Strategies and a considerable backlog of the known Cases A are a concern (OSCE 2018a).

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5.4.2  European Union The Delegation of the European Commission to BiH was established in July 1996. After the entry into force of the Treaty of Lisbon in December 2009, its name changed to the Delegation of the EU. The competences of this delegation are: –– To present, explain and implement EU policy; –– To analyze and report on the policies and developments in the countries/institutions to which they are accredited and –– To conduct negotiations in accordance with a given mandate. The EU Delegation exercises functions conferred to it by the establishing treaties, promoting the Union’s interests that are embodied in the EU’s common policies, such as Common Foreign and Security Policy, common commercial, agriculture, fishery, environment, transport, and health and safety policies. The Head of this delegation works under the authority of the High Representative of the Union for Foreign Affairs and Security Policy, a position that is currently held by Ambassador Johann Sattler, who is at the same time the EU Special Representative. The European Union Special Representative is the central axis of the European Union’s presence in BiH, which ensures a coordinated and coherent EU approach to assist the country to move towards European integration. This figure is appointed by the Council of the EU in order to convene determined tasks and he/she reports on the achievements to the High Representative of the Union for Foreign Affairs. The European Union Special Representative is appointed by the Council to support BIH’s progress in the Stabilisation and Association Process, due to the post-conflict situation “with the aim of seeing a stable, viable, peaceful, multi-ethnic BiH, co-­ operating fully and peacefully with its neighbours in the region” (EUSR web page). The office was first established in BiH in June 2002 and its first emissary was Lord Ashdown, at the time head as well of the OHR. However, EU accession requires multiple reforms, most notably the reform of the present Constitution so that it is compatible with the Union and their acquis communautaire. These reforms are meant to fulfil political and economic requirements, i.e. to integrate into the common market, to have institutional stability, a democratic system and a system of protection of human rights and the rights of minorities. The military operation of the EU in BiH is called EUFOR Althea and was launched in December 2004. The decision to launch Operation EUFOR Althea followed the decision by NATO to conclude its SFOR operation and the adoption of resolution 1575 by the United Nations Security Council. Today, EUFOR Althea relies on 600 troops in BiH, backed by reserves in different countries. A multinational manoeuvre battalion is based in Sarajevo and EUFOR Althea also retains its presence throughout the country through the Liaison and Observation Teams. EUFOR Althea retains its capacity to react throughout the country to any possible security challenges.

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One must also take into account the European Union Police Mission in BiH, the first mission of which was launched on 1 January 2003 for an initial period of three years. Upon the invitation of BiH authorities, European Union Police Mission continued its mission until June 30, 2012. Their main goal in BiH was to create, under BiH ownership, a modern, sustainable, professional multi-ethnic police force that was trained, equipped, and able to assume full responsibility and to independently uphold international law enforcement standards. The results of the civilian Mission were analyzed as very positive, and they have been used in other EU civilian Missions elsewhere. Among other effects European Union Police Mission “improved the functionality and sustainability of the BiH security sector and depoliticized conflict over police restructuring” (Flessenkemper and Helly 2013). Actually, the Mission supported the creation of relevant new security institutions such as the State Investigation and Protection Agency or the Ministry of Security. Additionally, it supported the cooperation of the institutions with NGOs and boosted the institutional dialogue of domestic violence in some extent. Since 2014 the EU decided to renew their approach to the country, without changing the accession conditions. This new approach was supported with strong commitment shown by the BiH authorities and thus the SAA entered into force in June 2015. This opened a “new chapter [for BiH] in its relations with the EU and confirmed its commitment to pursue EU accession” (European Commission 2019b). This document is indeed a contract among both parties on the mutual commitments and the legal basis for formal policy dialogue.

5.4.3  Organization of Security and Cooperation for Europe In December 1995, the OSCE established a Mission to BiH in accordance with the mandate of Annex VI of the DPA which “invites the OSCE to monitor the human rights situation in BiH”. The OSCE Mission to BiH is assisting BiH in meeting its OSCE commitments and in progressing towards its stated goal of Euro-Atlantic integration. To accomplish their mission, the OSCE has eight field offices and one temporary premises throughout the country in addition to the Head Office based in Sarajevo. One must not forget that the OSCE was assigned the task of establishing a Provisional Election Commission and conducting elections (Annex 3 of the General Agreement for Peace, Article II). Bosnian-Herzegovinian institutions took over full responsibility for elections only in 2002, through the Central Election Commission. Nowadays, the Mission continues to play a vital role in strengthening the country’s ability to establish a sustainable and stable security and defence environment. Nowadays, apart from its security role, the OSCE is one of the main promoters of civil society development working, among other issues, to support the educational reform process and to promote and protect the human rights of all citizens of BiH. With more than 300 staff in Sarajevo and in field offices across the country, the OSCE Mission to Bosnia and Herzegovina is today the OSCE’s third-biggest

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Field Operation. In its 25 years of existence their main achievements can be seen in the human rights field, especially with the establishment of the BiH Human Rights Ombudsman Institution, the return of people to their pre-war houses with 98% success in the process of the so-called Property Law Implementation Plan. Additionally, it is worth mentioning that it was part of the Mission mandate to organize the democratic elections until they handed over to the Central Election Commission in 2002.

5.4.4  Council of Europe Also based on Annex VI of the DPA, the Council of Europe (CoE) established an office in Bosnia and Herzegovina. The office was established in Sarajevo in April 1996 with the initial tasks of: –– –– –– ––

Establishing the Human Rights Commission, Assisting the Ombudsperson for human rights of BiH, Appointing judges under Annex IV and VI of the DPA, In general, assisting BiH in meeting the criteria for accession to the Council of Europe, following BiH’s first application in April 1995.

BiH joined the Council of Europe in April 2002. By doing so, the country accepted many obligations required of all member states, specifically the need to comply with the principles of a pluralist democracy, the rule of law and respect for human rights and fundamental freedoms. BiH ratified the European Convention on Human Rights and Fundamental Freedoms in July 2002. At the same time, it entered into a number of other specific commitments which it agreed to honour by set deadlines and which are listed in Opinion No. 234 (2002) on BiH’s application for membership to the CoE (PA CoE 2002). Bosnia and Herzegovina has five representatives in the Parliamentary Assembly, five representatives in the Congress of Local and Regional Authorities, a judge, and a Permanent Representative at the European Court of Human Rights. The CoE Human Rights Commissioner conducts periodic reports on the human rights situation in BiH that establishes what progress has been made in the field of human rights and what matters remain of concern. Nowadays the position is held by a Bosnian-­ Herzegovinian, Dunja Mijatović that was elected by the CoE Parliamentary Assembly and took up this position in April 2018. The greatest concern, not just for the CoE, but also for BiH’s Euro-Atlantic path, has been the decision of the European Court of Human Rights in December 2009 regarding the case of Sejdić–Finci vs. BiH, which urged BiH to amend its Constitution in order to overcome ethnic discrimination in the institutional representation of the country for persons not belonging to one of the three constituent peoples.

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5.4.5  North Atlantic Treaty Organization Since their participation during the 90s war, NATO has led the Implementation Force, Stabilization Force and other peacekeeping efforts in the country. Bosnia and Herzegovina joined the Partnership for Peace in 2006, and signed an agreement on security cooperation in March 2007. The nation began further cooperation with NATO within their Individual Partnership Action Plan in January 2008. BiH then began the process of Intensified Dialogue at the 2008 Bucharest summit, and was invited to join the Adriatic Charter of NATO aspirants on 25 September 2008. At the NATO Summit in January 2009, the Defence Minister confirmed Bosnia’s interest in seeking a Membership Action Plan (MAP) On April 22, 2010 NATO agreed to launch the Membership Action Plan for BiH, but with certain conditions attached. One of them being the need to solve the issue of allocating the country’s immovable defence property between its various levels of government. The condition was chosen as a compromise, in part because it is also one of the several conditions agreed in 2008 for phasing out the OHR from BiH. Initially, 63 locations were identified as requiring such registration, but their number was eventually reduced to 57 by the BiH Ministry of Defence. To date, only 31 properties, all in the FBiH, have been registered. Despite having insisted for years on the strict conditions imposed on BiH regarding the registration of military property, at the beginning of December 2018 the NATO ministerial council decided to activate the MAP for BiH, and asked the country to submit its first annual program. Controversies surrounding the submission of BiH annual program to NATO were one of the main obstacles to the formation of new authorities after 2018 elections, with Bosniak parties (most notably the SDA) insisting that it represents a necessary precondition for any new coalition agreement, and Dodik’s SNSD refusing to do so. Eventually, in November 2019 BiH decided to send a “reform program” to NATO, which according to many is not different from the annual program required for future integration in the organization. NATO accession remains a highly divisive topic, which might prevent full membership from being reached in the foreseeable future. Some RS-based political parties explicitly state that NATO membership is only possible once (and if) Serbia becomes a NATO member and that a country-wide, or at least entity level, referendum would have to be conducted. This policy was formalized on 18 October 2017 when the RS NA adopted a “Resolution on the Protection of the Constitutional Order and Declaration on RS Military Neutrality”. The majority (55%) of BiH citizens support NATO integration. However, there are strong differences between the entities, with FBiH showing strong support at 85% and RS showing very weak support at 18% (USAID 2017).

Chapter 6

International Politics

In order to analyze the BiH foreign policy in this chapter we will focus on the general policy-making based both in the constitutional powers given to the Presidency as well as how it plays in practice. Finally, we will see with a bit more of detail two of the main bulks of this foreign policy: BiH regional relations and the integration into the EU.

6.1  Foreign Policy The foreign policy of BiH is a state-level competency conducted by the Presidency in accordance with Article 5 of the BiH Constitution, where it is established the responsibility to “conduct the foreign policy of Bosnia and Herzegovina (et  al. appointing ambassadors and other international representatives; representing the country in international and European organizations and institutions; arranging international agreements, denouncing, and, with the consent of the Parliamentary Assembly, ratifying treaties etc.)”. Additionally, according to the Law on the Council of Ministers of BiH, the Ministry of Foreign affairs is responsible for the implementation of foreign policy and the development of international relations in accordance with the positions and directions of the Presidency of Bosnia and Herzegovina. In addition, the Presidency first and then the Ministry have defined the principles and priorities of BiH Foreign Policy as follows. Among the principles, the most relevant are the promotion and representation of BiH interests, based on the Constitution and the position of BiH institutions at the international level; acting in bilateral, regional and global frameworks, based on the principle of mutual respect for sovereignty, territorial integrity and peaceful cooperation, as well as peaceful settlement of interstate misunderstandings. Among the priorities of the Foreign Policy of BiH are the protection of sovereignty and territorial integrity of the country, the full implementation of the General Peace Agreement, the participation in © Springer Nature Switzerland AG 2021 D. Banović et al., The Political System of Bosnia and Herzegovina, https://doi.org/10.1007/978-3-030-54387-7_6

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multilateral activities and promotion of cooperation with neighbouring countries, with a special focus on economic relations, and BiH’s entry into the European Union. In 2018, the BiH Presidency adopted the Foreign Policy Strategy of BiH 2018–2023, the second strategic document of its kind following the one adopted in 2003. The strategy pivots along the main “pillars” of the foreign policy: security and stability; economic prosperity; protection of the interest of BiH nationals abroad and international legal cooperation; promotion of BIH in the world (Presidency web page). To make the foreign policy operational the Ministry counts with a network of embassies, consulates and delegations in more than 50 countries, representing the interest of BiH. However, as some authors noted “its staff is often selected based on ethnonational or political party belonging rather than merit […] often underqualified to adequately serve in their positions as they lack diplomatic and foreign language training” (Hasić and Karabegović 2019).

6.2  Regional Relations As some authors note BiH “has actively pursued the development of cooperative and positive bilateral and regional political relationships, BiH, actually BiH is an important actor in a number of overlapping regional organizations and initiatives” (Hasić and Karabegović 2019). Out of the 90 organizations that BiH is part of some of the most relevant ones for BiH are of regional character. Especially since 2000 there have been significant improvements in the fragile post-conflict regional relations. Thus, since then BiH has been more oriented in its multilateral foreign policy towards the South-East Europe region. Modest regional cooperation has been taking place within the framework of various initiatives such as the South-East European Cooperation Process (SEECP), the Regional Cooperation Council (RCC) or the Central European Free Trade Agreement (CEFTA).1 The SEECP dates back to a Conference of Ministers of Foreign Affairs held in Sofia in 1996 and the main aim of this regional cooperation forum is “strengthening the good-neighbourly relations among all participants from South-East Europe and transforming this region into an area of peace, security, stability and cooperation, with the main goal of full integration into European and Euro-Atlantic structures”. Nowadays, the SEECP consists of 13 participants from the region, which are also members of the Regional Cooperation Council Board. The Regional Cooperation Council was established in the SEECP conference in Sofia in 2008 and counts with 46 participants, the Headquarters are in Sarajevo and it is directly financed by the EU. Their main areas of work are focused on “reducing the obstacles to increased mobility, enhanced connectivity and improved c­ ompetitiveness

1  If not differently stated, information and quotes on the regional organizations and cooperation frameworks are taken from the web pages from those organizations or frameworks.

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in SEE, while also contributing to better governance, improved functioning of the rule of law and enhanced security in the region”. It is also worth mentioning the adoption by the leaders of the regional countries of the Multi-annual Action Plan on Regional Economic Area that endorses the goals of enabling “unobstructed flow of goods, services, capital and highly skilled labour, making the regional more attractive for investment and trade; and accelerating convergence with the EU, thus bringing prosperity to Western Balkans citizens”. Yet again another example of the BiH interest of investing in multilateral economic organization is its membership in the CEFTA. Originally established by the Visegrad Group (formed by Poland, Czech Republic, Hungary and Slovakia) with the main goal of “mobilizing resources to join European political, economic, security and legal systems, thereby consolidating democracy and free market economics”. As the rule for membership is that it ends once a participating country joins the EU, none of the original founders is part of it anymore. It was since 2006 that new members have joined and nowadays, after more enlargement of the EU towards the East has taken place since then, is formed by Albania, BiH, Kosovo, Moldova, Montenegro and Serbia. Finally, these developments have been enhanced by the so-called Berlin Process that has served as a trigger for more political-economic cooperation in the countries of the region. The Berlin Process has been since 2014 the only high-level political instrument that focuses exclusively on the six remaining non-EU Western Balkan countries. It was under the initiative of the German Chancellor Angela Merkel that several international summits with the main goal of reiterating the EU’s declarative commitment to the European perspective of all Western Balkan countries took place. Relations with BiH’s neighbours, Croatia, Montenegro and Serbia, have been fairly stable since the signing of the Dayton Agreement in 1995 although there have been small disputes. In general relations with Croatia have improved in the last few years. However, Croatia’s proposal to build a bridge connecting its northern and southern mainland currently divided by the town of Neum, BiH’s only coastal outlet, is still a contentious issue. BiH has opposed the construction of this bridge, voicing concerns that it could limit its access to the sea. Additionally, Croatian plans to dispose of nuclear waste at a site in Trgovska Gora, close to the border with north-western parts of BiH have led local residents, environmentalists and political leaders from BiH to voice serious concerns over the associated dangers. Some cross-border political influences still exist, especially due to the close links between HDZ (from Croatia) and HDZ (BiH). Links between BiH as a whole and Serbia have markedly improved over several years. However, the legacy of war-time atrocities continues to be a periodic flash issue. Serbian Prime Minister opted to visit BiH as his first official foreign trip after winning 2014s parliamentary elections demonstrating the importance given to positive relations. Serbia seems sincerely committed to maintaining the stability of BiH, and its government has occasionally seemed exasperated by the confrontational stance of the RS government. However, Belgrade remains Banja Luka’s foremost

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ally, and symbolic shows of support for RS seem important for the Serbian government’s popularity. A milestone on regional relations was set on the margins of the 2015 Western Balkans Summit, when BiH and Montenegro signed the region’s first official border agreement which finally concluded a long-running territorial dispute over the village of Sutorina. Despite some setbacks, regional relations among former Yugoslav states have improved over recent years. Croatia and Serbia, Bosnia and Herzegovina’s (BiH) two largest neighbours and two of its most economically vital trade partners, have become positive partners for the country in many areas. In general, the European Union (EU) trajectory of Western Balkan countries, their wish to enter the international stage and increasing inter-connectivity are all factors which have and will continue to have a stabilizing and positive influence on regional relations.

6.3  European Integrations The most important foreign policy objective of BiH is integration into the European Union, a goal shared by the majority of the population, regardless of their ethnic or political identity. The EU and BiH have developed relations since DPA signature in 1995, but it was their signature of the Stabilization and Association Agreement (SAA) in June 2008 that marked the initiation of the country’s EU path. It was decided at the time to put in place an Interim Agreement, waiting for BiH to comply with the main condition before the SAA entered into force: compliance with the European Court of Human Rights 2009 decision in the Sejdić–Finci case. However, in 2014 the EU decided to renew their approach to the country, without changing the accession conditions—which definitely includes the solution of the Sejdić–Finci case. This new approach was supported with strong commitment shown by the BiH authorities and thus the SAA entered into force in June 2015. This opened a “new chapter [for BiH] in its relations with the EU and confirmed its commitment to pursue EU accession” (European Commission 2019b). This document is indeed a contract among both parties on the mutual commitments and the legal basis for formal policy dialogue. Nevertheless, and according to civil society monitoring closely this process, “the disorderly and untimely fulfillment of fundamental obligations in the European integration process, Bosnia and Herzegovina fails to demonstrate a true commitment to reform processes on the European path and for now keeps such a commitment at a declarative level” (Initiative for Monitoring the European Integration of BiH 2019). Since then the EU is helping BiH to implement the Reform Agenda, a set of self-­ imposed objectives by all BIH authorities, to ensure economic growth and increase of jobs in the country. One must not forget that the EU is indeed the main trading partner of BiH, as 61% of the imports come from the EU and 71% of BiH exports go to the EU countries (European Commission 2019b).

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One of the milestones in this process was the submission by BiH authorities of the fulfilled European Commission Questionnaire, which is presented to potential candidate countries. However, and despite pressure from the EU, authorities in BiH delayed completing the country’s EU questionnaire, as said landmark step in any country’s path to EU membership, throughout 2017 and 2018 submitting the final text in April 2019. It is vital to remember, though, that in response to the EU offering the prospect of accession—and assistance to achieve it—BiH is committed to fulfilling certain political and economic requirements. The requirements, widely known as the Copenhagen Criteria, were agreed upon by the European Council in Copenhagen in 1993 and include (EUR-Lex) and the EU has stated in several occasions that the requirements will not be lowered for BiH accession. In conclusion, all reforms required to meet the political and economic criteria for BiH to become a member state of the European Union are in essence also necessary for the progress of democracy and economic prosperity of the country itself. The European path may serve as an effective catalyst, but it cannot be the only reason for reforming the Constitution or adapting a market economy. Both of these relevant issues remain the responsibility of BiH to address as its “national interests”, and thus the responsibility of BiH citizens and their elected leaders.

 pilogue: Is There a Way Out of the Dayton E Political System?

The political system of Bosnia and Herzegovina has gone through significant reforms since its establishment through the Dayton Peace Agreement until present day. Today, 25  years later, we can discuss the post-Dayton political system. The transformations occurred under a significant influence of the international community; through the actions of the Constitutional Court of Bosnia and Herzegovina; as a part of EU integration process or as a result of agreement between the political elites. All these manners and influences of transformation occurred independently or in combination with one another. It is often claimed in the public sphere that amendments to the Constitution at the state level are required for the establishment of a more functional state. The Constitution of Bosnia and Herzegovina has been amended only once through a formal amendment procedure by adopting Amendment I to the Constitution of Bosnia and Herzegovina. However, the constitutional system did change and evolve through the process of the so-called factual amendments to the Constitution. This process is not unknown in the comparative constitutional law and the political science theory. The state level has evolved by transferring and expanding the competences in order for the country to perform its natural tasks or tasks which are more natural to be dealt with at a higher level. In a formal sense, the entities’ constitutions have been significantly amended by the introduction of all three constitutive peoples, national minorities and persons who do not identify themselves in the public sphere in an ethnic manner and by ensuring the right to political representation. This means that the amendments were made at the level of federal units—entities. More specifically, elements of consociational democracy have been introduced. They are expressed through veto mechanisms, quotas, proportional representation, etc. These amendments established a constituent equality of the three ethnic groups and limited the representation of the group of Others. Nevertheless, these amendments do not necessarily meet the objective that would lead towards a more efficient and more functional state. How can this be achieved? The period of the post-Dayton Bosnia and Herzegovina is characterized by long political crises, blockades, difficulties in reaching consensus, long © Springer Nature Switzerland AG 2021 D. Banović et al., The Political System of Bosnia and Herzegovina, https://doi.org/10.1007/978-3-030-54387-7

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government establishment processes, etc. But, how is it possible to balance between ensuring equality of the constituent peoples, individual rights and the functionality of the state? It is not possible to give a simple answer to this question. Its resolution is not conditioned only by formal amendments to the Constitution. The necessary amendments are greatly related to the political context as well. In this sense, it is required to achieve a change of paradigms and values among the political elites; internalization of the rule of law principle and the consensus as the decision-making method; dialogue and trust, but also to resolve the issue of legitimacy of political representation and the systematic discrimination and to fully accept the idea of a country being a service to its citizens. Compared to the earlier considerations and analyses within the academic community, today it is possible to discuss the convergence of positions on the nature of the political system in Bosnia and Herzegovina. This was partly influenced by its clearer profiling in the past 25 years. Even though obvious disagreements still exist, but in relation to certain particularities, the common position is that the political system of Bosnia and Herzegovina is (1) a form of federation to which, compared to the analytical concept, all elements of consociational democracy have been introduced. They are specifically reflected in the existence of a broad coalition at the state level, representation proportionality, quotas, blockade mechanisms, but also in non-institutional agreements between the political elites as the representatives of the three segments. However, the theoretical and applied analyses of the consociational democracy model of Bosnia and Herzegovina neglect the social context. The social basis of every formally established democratic political system requires the existence of a democratic/participatory political culture in the given social context. This is primarily related to the existence of a national identity awareness; developed social and political trust in political subjects, political parties, but also in other citizens; readiness to expand political cooperation; deeper effective, not only instrumental, connectedness with the given political system. Apart from these essential elements, the context of Bosnia and Herzegovina is additionally burdened by the context of it being a post-conflict, post-socialist and ethnically divided society. The democratic development and consolidation are related to the previously raised questions of the transitional justice and the appropriate confronting the past. It is also burdened by the political culture heritage of the socialist period which is generally seen as non-democratic. At the same time, it is necessary to complete the process of internationalization of the democratic values and democratic practices among the political elites, political parties, and expanding the democratic values through the engagement of the civil society. An interesting idea in theory, but difficult to be put in practice, is the establishment of different forms of referendums as a kind of direct civil pressure to the political elite and making direct decisions which are of interest for the citizens. Apart from these issues, there still remain the unresolved constitutional issues of legitimate representation and the appropriate representation of individuals in the public sphere, i.e. the issue of the systematic discrimination confirmed in a number of decisions of the European Court of Human Rights.

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Having regard to this unique situation, it is difficult to provide even a conceptual solution to the problems that burden the democratic transition, but also the creation of a functional country which is able to perform the EU integration tasks. Nevertheless, the conceptual proposal would move in the following direction: the first proposal is related to the development of a minimum identity content that surpasses the identities of social segments. This means that in parallel to state-building processes, it is necessary to develop the identity content that would connect all segments of the society of Bosnia and Herzegovina. This proposal could be understood through the multiculturalism principle as a value of the political system of Bosnia and Herzegovina. The second proposal is related to the cooperation and building trust among the social segments, both at the collective and the individual level, with regard to the issues of mutual interest, through institutions or other forms of organization. The third proposal deals with the issue of reaching consensus on the legitimacy of political representation of social segments as a value in the relations between the political elites, which would stabilize the political relations and shift the focus within political relations to the issues of EU integrations, economy, education and other non-ethnic issues. The last three proposals deal with a stronger cooperation of the civil society within and between social segments; formal and informal education that cherishes both values within social segments and mutual values. Lastly, we are reaching the issue of building consensus on the nature of the political system. Certain problems in the functioning of the state structure are caused by the different understanding of the state, entity and canton level, their mutual relations as well as their rights and obligations. Finally, the democratic consolidation issues are important for the further EU integration process which is, still, the only mutual objective of political elites. If one wished to determine with certainty an element that connects all political elites, the result would be the question of EU membership. Membership perspective creates a potential synergy within the country and urges for cooperation and, at the same time, creates formal and informal forms of cooperation and coordination between different levels of government. Building a functional state, stabilization of democratic processes and democratic consolidation, as well as the resolution of systematic discrimination, generally represent the next phase of the political system of Bosnia and Herzegovina which is necessary for objectives of good and productive life of its peoples and citizens to be met.

 he Political System of Bosnia and Herzegowina T (Without Brčko District)

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Based on Richter/Gavrić 2010

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Web Pages of International Stakeholders, Institutions and Political Parties (All Last Time Accessed on 27 March 2020) International Actors: Central European Free Trade Agreement (CEFTA), https://cefta.int/

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Congress of Local and Regional Authorities of the Council of Europe, www.coe.int/en/web/ congress/member-s-area. Council of European Municipalities and Regions, www.ccre.org/ Delegation of the European Union to Bosnia and Herzegovina, http://europa.ba/?page_id=442 European Union Forces (EUFOR) in BiH. www.euforbih.org/eufor/index.php/about-eufor/ background. Network of Associations of Local Authorities of South East Europe. www.nalas.eu/Members. European Union Special Representative, https://europa.ba/ Office of the High Representative of the International Community for BiH, http://www.ohr.int/cat/ hrs-decisions/removals-and-suspensions-from-office/ Office of the High Representative, Brčko Supervision, http://www.brckosupervizija.ba/ web/?page_id=39 OSCE Mission to Bosnia and Herzegovina, https://www.osce.org/mission-to-bosnia-and-herzegovina Regional Cooperation Council, https://www.rcc.int/

State Level: Agency for Statistics of Bosnia and Herzegovina, http://www.statistika.ba/?show=14#link1 Constitutional Court of Bosnia and Herzegovina. http://www.ccbh.ba/?lang=en Council of Ministers of BiH, http://www.vijeceministara.gov.ba/Default.aspx?langTag=bs-BA& template_id=91&pageIndex=1 Central Election Commission of BiH, https://www.izbori.ba/Default.aspx?Lang=3 Centre for Information and Recognition of Qualifications in Higher Education, http://www.cip. gov.ba/en/vijesti-eng/251-informacija-o-statusu-evropskog-univerziteta-i-internacionalnoguniverziteta-u-brcko-distriktu-bih-engh Institution of Human Rights Ombudsman of Bosnia and Herzegovina, https://www.ombudsmen. gov.ba/Default.aspx?id=10&lang=EN Presidency of BiH, http://www.predsjednistvobih.ba/default.aspx?pageIndex=1&langTag=bs-BA Parliamentary Assembly of BiH, www.parlament.ba

Republika Srpska: Association of Cities and Municipalities in the Republika Srpska, www.alvrs.com/v1/. President of the Republika Srpska, www. http://www.predsjednikrs.net/ National Assembly of the Republika Srpska: https://www.narodnaskupstinars.net/ Council of Peoples of the Republika Srpska: https://www.vijecenarodars.net/ Government of the Republika Srpska, https://www.vladars.net/sr-sp-cyrl/Pages/default.aspx Constitutional Court of the Republika Srpska, http://www.ustavnisud.org/

Federation of BiH: Association of Cities and Municipalities in the Federation of Bosnia and Herzegovina, www.sogfbih.ba/index.php?lang=ba&sel=94. President of the Federation BiH: http://www.predsjednikfbih.gov.ba/

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Deputy President of the Federation BiH (Serb): http://potpredsjednikfbih.gov.ba/ Deputy President of the Federation BiH (Bosniak): http://fbihpotpredsjednik.gov.ba/ Parliament of the Federation BiH: https://parlamentfbih.gov.ba/ Government of the Federation BiH: http://www.fbihvlada.gov.ba/bosanski/ Constitutional Court of the Federation BiH: http://www.ustavnisudfbih.ba/

Brčko District: Assembly, https://skupstinabd.ba/ba/ Government, http://www.vlada.bdcentral.net/

Cantons: Assembly of the Una-Sana Canton, http://skupstinausk.ba/vladausk.ba/v4/index/skupstina-usk/10 Government of the Una-Sana Canton, http://vladausk.ba/v4/ Assembly of the Posavina Canton, http://skupstinazp.ba/Nova/ Government of the Posavina Canton, https://www.zupanijaposavska.ba/ Assembly of the Tuzla Canton, https://www.skupstina.tk.gov.ba/ Government of the Tuzla Canton, http://www.vladatk.kim.ba/ Assembly of the Zenica-Doboj Canton, https://www.zdk.ba/skupstina Government of the Zenica-Doboj Canton, https://www.zdk.ba/vlada Assembly of the Bosnian-Podrinje Canton Gorazde, https://www.bpkg.gov.ba/skupstina/3128/ skupstina-bosansko-podrinjskog-kantona-gorazde-2/ Government of the Bosnian-Podrinje Kanton Gorazde, https://www.bpkg.gov.ba/ Assembly of the Central Bosnia Canton, http://sbk-ksb.gov.ba/bs/pocetna-skupstina.html Government of the Central Bosnia Canton, https://sbk-ksb.gov.ba/hr/ Assembly of the Hercegovina-Neretva Canton, http://www.skupstina.org/hr/naslovnica Government of the Hercegovina-Neretva Canton, https://www.vlada-hnz-k.ba/ Assembly of the West Hercegovina Canton, http://www.skupstina-zzh.ba/ Government West Hercegovina Canton, http://www.vladazzh.com/ Assembly of the Sarajevo Canton, https://skupstina.ks.gov.ba/ Government of the Sarajevo Canton, https://vlada.ks.gov.ba/ Assembly of the Canton 10, http://www.skupstinahbz.com/ Government of the Canton 10, https://www.vladahbz.com/

Political Parties: DF, Democratic Front, www.fronta.ba DNS, Democratic People Union, www.dnsrs.org HDZ, Croatian Democratic Union, www.hdzbih.org HDZ 1990, Croatian Democratic Community 1990, www.hdz1990.org NDP, Peoples Democratic Movement, www.ndprs.org NSRzB, People‘s Party for Work and Betterment, www.zaboljitak.ba PDP, Party of Democratic Progress, www.pdp.rs.ba

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SBiH, Party for Bosnia and Herzegovina, www.zabih.ba SBB, Union for a Better Future, www.sbb.ba SDA, Party for Democratic Action, www.sda.ba SDP, Social Democratic Party, www.sdp.ba SDS, Serbian Democratic Party, www.sdsrs.com SNSD, Alliance of Independent Social Democrats, www.snsd.org SPRS, Socialist Party of Republika Srpska, www.socijalisti.ba SRS, Serbian Radical Party, www.srsrs.org

Other Stakeholders Press Council of BiH, http://english.vzs.ba/index.php/press-council-in-bih/print-media-in-bih Centri civilnih inicijativa, www.cci.ba

Print and Online Media Balkan Insight, 16.05.2019a: https://balkaninsight.com/2019/05/16/bosniak-parties-hatch-coalition-agreement-in-bosnia/, Accessed on 23 March 2020 Balkan Insight, 21.12.2019b, https://balkaninsight.com/2019/12/21/reform-program-fails-to-clarify-bosnias-nato-ties/, Accessed on 25 March 2020 Balkan Insight, 03.03.2020, https://balkaninsight.com/2020/03/03/corruption-scandal-shakes-bosnias-largest-political-party/, Accessed on 23 March 2020 Balkanist, 27.05.2015, https://balkanist.net/the-evolution-of-the-sda-ideology-fading-away-inthe-battle-of-interests/, Accessed on 23 March 2020 BH Dani, No. 567, 25 April 2008: „Milorad Dodik“ Deutsche Welle, 18.02.2020: https://www.dw.com/hr/dodik-goodbye-bih-welcome-rsexit/a-52413985, Accessed on 23 March 2020 Oslobođenje, 7.10.2008: „SNSDu 41 načelnik, SDA 36, HDZ-u 16, a SDS-u 15“. Radio Free Liberty, Radio Europe, 09.01.2018: https://www.rferl.org/a/republika-srpska-statehood-day-defying-court-ban/28964699.html, Accessed on 25 March 2020