Something is rotten in the state of Bosnia and Herzegovina, but what exactly is it?

Authors

Ms. Šeila Akagic holds a LL.M in European Union Public Law & International Law from Erasmus University Rotterdam. Currently she works for the Dutch Ministry of Justice and Security as senior legal counsel.

Mr. Alden Pervan LL.M, Lecturer of international and European Law (Open University in the Netherlands).

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What exactly is bugging Bosnia and Herzegovina to become a full EU candidate and open up its negotiations like Ukraine did last June?

 Well some of my European friends were puzzled by the whole situation so let us start with a short overview. Some year ago the European Court of Human Rights (ECHR) has given its verdict in the CASE OF KOVAČEVIĆ v. BOSNIA AND HERZEGOVINA. This verdict points out discrimination and the violation of human rights in Annex IV, Bosnia’s Constitution, within the Dayton Peace Agreement (DPA)  which stopped the bloody Balkan war in Bosnia and Herzegovina some 30 years ago. In consequence, the electoral law of Bosnia and Herzegovina will need a revision in order to comply with the Convention for the Protection of Human Rights and Fundamental Freedoms but also with the so called European Union (EU) acquis.  This verdict was a sixth ECHR verdict in a row with different applicants basically complaining about more or less the same issues, namely their fundamental human rights being infringed whilst trying to be able to vote and to be eligible to be elected regardless of their ethnicity and or religion.

Kovacevic case

In an op-ed as published by EU Law Live September last year, the authors discussed the possibilities this verdict offers for the Bosnian EU candidacy status and enlargements of the European Union and, of course with the necessary changes to the constitution, electoral Bosnian Law and alignment with the EU acquis.

EU clerks probably envisioned the same path for the Bosnian alignment of chapter 23 en 24 of the EU acquis ,  as “ Member States must ensure respect for fundamental rights and EU citizens’ rights, as guaranteed by the acquis and by the Fundamental Rights Charter”.  Hence the representatives of the EU in Bosnia communicated you are almost ready to open up the negotiations but not yet- you need to agree internally on some more legal reforms to be done.

In addition the Dayton Peace Agreement ensures the same human rights via Annex 6 to all citizens of Bosnia and Herzegovina.

The High Representative

But unfortunately here comes the cliffhanger.  Nobody had a faintest clue that the High Representative (HR) of the Office of the High Representative, incumbent Christian Schmidt, had other plans. High Representative is a diplomatic post in the post Dayton Bosnia and Herzegovina with certain powers. His/her main mandate amongst others is to “ Monitor the implementation of the peace settlement” as defined in Article II of Annex 10 of the DPA.  In addition the HR later was mandated amongst others with certain “Bonn powers”.  These combined powers could and should be used for the wellbeing of Bosnian young democracy and its people. Additionally these powers should be used to achieve the following: “The OHR has also focused on establishing the rule of law, which is the starting point and an essential requirement for progress in all the other areas of reform”.

Kovacevic case and the High Representative

But stay tuned because current HR, Christian Schmidt, has  besides his legal mandate also decided to give his opinion in the Kovacevic case before the Grand Chamber which the case was referred to! This is basically an unprecedented situation because ECHR does not define a role for the HR nor did he get one by his mandate or the Peace Implementation Counsel (PIC). The PIC is a steering body of 55 countries established in 1995 to mobilize international support for this Dayton Peace Agreement. Nevertheless the HR decided to hire a very pricy London Law Firm to formulate and send to the ECHR his amicus curiae vision about the Kovacevic case. Juicy details mentioned in the daily newspapers in Bosnia describe a 600 page document which no one has yet fully analyzed, which has been financed by the international community without its consent. High Representative namely tried to get the consent of the PIC countries for his intervention in the Kovacevic case but has not been given one. Obviously HR still took a chance and tried anyways to urge, among other more procedural remarks, the high court as described in this letter that Kovacevic case and the current verdict is not the best way to go and would be a treat to the fragile Bosnian peace. This is a very bold statement of the HR. Namely somehow being a democratic state and respecting the Rule of Law with fundamental rights enshrined in the new constitution is according to C. Schmidt a threat to a fragile peace situation? But even more concerning is that the HR is giving his opinion om the merit of the ECHR case. He points out the only dissident opinion of Judge Kuckso- Stadlmeyer as the right way to go about this case.

As to be expected the Bosnian public is blown away by this action of the High Representative. Although the ones who are following the persona of Christian Schmidt, have witnessed his recent and frequent visits to Croatia (more specifically leadership of Croatian nationalist Party HDZ) and its favorisme of the Croatian constituent people living in Bosnia. Yes, Bosnia and Herzegovina is a multiethnic state hence there are 3 so called constituent peoples: Bosniaks, Croats and Serbs and there is also a defined group called “Others”. This undemocratic creation of constituent peoples during the Dayton peace agreement was somehow the best thing to do in 1995 but is long overdue and needs to be democratically improved. This fact has also been discussed and confirmed in the abovementioned six ECHR cases. Although C. Schimdt writes, via his fancy and expensive Blackstone London Lawyers team, to the highest human rights court that this reparation needs to be seen in the “Bosnian context” the question arises of what this actually means?  What does it mean to look at fundamental human rights in the “Bosnian context” ? As if fundamental human rights of Bosnian citizens are somehow to be seen in a different light than for example Spanish or Italian human rights? These are very worrying actions of the HR and could possibly indicate some form of bias and compromised persona of Christian Schmidt in his role of High representative in Bosnia and Herzegovina.

Certainly High Representative has no mandate to participate on behalf of anybody in this case of citizen Slaven Kovacevic vs Bosnia and Herzegovina, but more vividly High Representative seems to have chosen sides. Namely during the last national elections in Bosnia and Herzegovina C. Schmidt decided  to use his mandated powers and change the electoral laws on the election night after the votes were in and namely in favor of Croat constituent people group. Can you imagine, voting for Trump or Harris and the same night you hear a message of some High Representative saying the votes you have given will be divided to the power in a new by him formulated way which favors the Croat constituent people group? To top things off in the recent TV interview on Bosnian TV show called “Face to face”, Christian Schimdt compared Alija Izetbegovic, the first Bosnian president with Ratko Mladic, convicted former army general with Serbian ethnicity convicted of genocide, war crimes and crimes against humanity by ICTY. Unprecedented and possibly biased actions of HR, Cristian Schmidt, are to be followed by his amicus curiae opinion during the Grand Chamber analysis of the ECHR to come.

The newest development in this appellation case is the invite the Grand Chamber has sent out to the Croatian presidency. The newspapers elaborate that because of the double nationality of the appellant Kovacevic, the Croatian State has somehow a role in this case as well. These are very interesting developments exposing the political side of international law.  However they are also raising the questions of this “catch 22” situation the State of Bosnia and Herzegovina has been in for almost 30 years after the Dayton Peace Agreement has been agreed upon.

The writers of this peace are of the opinion that the citizens of Bosnia and Herzegovina deserve the same human rights as defined in the Convention for the Protection of Human Rights and Fundamental Freedoms for all, regardless of contexts.

One thing is certain the ECHR Grand Chamber hearing on the 20th of November shall promise for some interesting legal reading and hopefully positive outcome for the fundamental human rights being factually equal for all people regardless of their EU address, nationality, religion or political orientation. Let’s wait and see..