Two years after it applied for EU candidate status, Bosnia and Herzegovina will hand over the answers to the Commission’s questionnaire this week. Now it falls upon Juncker to hold BiH to its membership aspirations and the reform commitments expressed, writes Ivan Pepic.
Ivan Pepic is head of the expert team at the Institute for Social and Political Research in Mostar, BiH.
The presence of Commission President Juncker and High Representative Mogherini in Sarajevo to receive the questionnaire answers reflects positively on BiH’s bold decision to join its neighbours on the EU path, despite misgivings in Brussels about the country’s readiness.
It’s clear from the Commission’s enlargement strategy, published earlier this month, that BiH is many years away from membership.
But the presence in Sarajevo of Juncker, who travels infrequently within Europe, is telling because it is he who has both dashed prospects for enlargement during his tenure while at the same time cajoling countries in the Western Balkans to embrace reforms and commit unambiguously to the EU as their strategic choice.
This week’s show of support for BiH could not come at a more important time, with general elections just eight months away. Those elections will undoubtedly take place, but will their results enable the creation of governments at state and entity level?
As things stand now, part of the electoral legislation relating to the Bosniak-Croat Federation has been deleted by the BiH Constitutional Court. And despite attempts by the current tripartite Presidency chairman, Dragan Čović, to craft a new law, compromise – as if often the case in BiH – remains elusive.
The court ruling stems from a challenge to the law relating to the election of delegates to the House of Peoples, one half of the Bosniak-Croat Federation’s parliament. The court agreed that the law was contrary to the constitutional principle of legitimate representation at all levels.
The House of Peoples’ electoral mechanism was imposed by the Office of the High Representative (OHR) for BiH, the ad hoc international institution responsible for overseeing the implementation of the 1995 Dayton Agreement, and in 2001 it was translated into legislation.
It effectively enabled one of BiH’s three constituent peoples to elect the representatives of another – and not only for the House of Peoples but for the state presidency too. Bosniaks, with 70 percent of the Federation’s population, have the power to choose the Croat member of the tripartite presidency over the heads of Croats themselves.
The EU has rightly identified the need to reform the election law and implement the Constitutional Court judgment, addressing the discrimination inherent in the voting systems for the House of Peoples and the state presidency as a crucial step on BiH’s journey towards candidate status.
It makes sense in the context of Brussels’s insistence that candidates adhere to the rule of law – but what use are court judgments if they are left unimplemented?
But it also makes sense in the context of BiH’s fragility and endemic political paralysis. An invalid election could trigger disastrous consequences, and the knock-on effects on the region could be severe.
Juncker, then, should be prepared to end the posturing and obstructionism blocking progress on this potentially existentialist issue. But his to-do list should not stop with the election law. Another milestone judgment remains unimplemented in BiH – this time delivered by the European Court of Human Rights.
The Sejdic-Finci case blew a hole through the constitution’s requirement that only Croats, Serbs, and Bosniaks can serve in the country’s presidency. The ECHR said this law was discriminatory, but seven years on, Sarajevo has made no progress towards changing the constitution.
It’s ironic, though, that successive High Representatives overseeing the Dayton accord have changed the constitution by fiat many times; one such example being the election law that was subsequently held to be unconstitutional.
This begs the question why many in the international community maintain the fiction that laws imposed by High Representatives can be translated in a functional framework for BiH’s governance if their weaknesses have been exposed time and again. This question will need answering sooner rather than later as BiH progresses towards EU membership.
The political standoff in Mostar, where failure to compromise on electoral regulation has prevented local polls there from taking place for a decade, suggests a nightmare scenario that could unravel across the country as a whole.
Mostar’s story, which itself results from the imposition of arbitrary rulings by the OHR, has failed to interest the international community. However, paralysis and fragmentation throughout BiH, amid interference by Russia and Turkey in favour of Serbs and Bosniaks respectively, would surely register in Brussels and Washington. But by then it could be too late.
That is why America also needs to understand the threat posed to its national security interests, and to work with the EU to lead the case for reform – just as it led the push for peace in the 1990s.
Juncker has a tough task on his hands, but he can’t walk away and leave this mess for others to clean up.
The EU is nothing if not a community of laws and values, so Juncker must hold BiH to its membership aspirations and the reform commitments expressed therein.
It’s clear that some politicians and parties in BiH thrive on sowing division and discord when they ignore EU’s institutions appeal for federalization and political reforms, even at the expense of their supporters’ best interests. Nothing will change unless the EU and its partners get tough.