The Box Marked Others

The form is short and the categories are fixed. To stand for the three-member presidency of Bosnia and Herzegovina you declare yourself a Bosniak, a Croat or a Serb, and you must live in the right half of the country: the Bosniak and Croat members are elected by voters in the Federation of Bosnia and Herzegovina, the Serb member by voters in Republika Srpska. There is no fourth option. A citizen who is Roma or Jewish, or the child of a mixed marriage who will not choose between two halves of a family, or who simply declines the question, is eligible only on condition of declaring himself something he is not — which is precisely the requirement two of them went to court to challenge.

Dervo Sejdić, who worked for the country's Roma council, and Jakob Finci, a former head of the Jewish community in Sarajevo and at the time the state's ambassador to Switzerland, took the point to Strasbourg. On 22 December 2009 the Grand Chamber of the European Court of Human Rights found for them on both counts: the bar on standing for the presidency and the bar on sitting in the upper house of the state parliament were each discriminatory. Bosnia and Herzegovina is a member of the Council of Europe and the judgment binds it. In the sixteen years since, the relevant articles have not been altered by a single word.

Annex 4

The constitution is not a Bosnian document in the ordinary sense. It is Annex 4 of the General Framework Agreement for Peace, negotiated at Wright-Patterson Air Force Base outside Dayton, Ohio, initialled there on 21 November 1995 and signed in Paris three weeks later. It was never debated in a Bosnian parliament, never put to a referendum, and its authoritative text is in English. It ended a war that had run since April 1992 and that the Research and Documentation Centre in Sarajevo has documented as just under 96,000 deaths, with roughly half the pre-war population driven from their homes, and it ended it by freezing the military map: two entities, the Federation on about 51 per cent of the territory and Republika Srpska on about 49, with the district of Brčko separated out by international arbitration in 1999. Inside the Federation sit ten cantons with their own parliaments and ministers. Add the cantons, the entities, Brčko and the state and a country of roughly three and a half million people carries fourteen governments. Nobody who negotiated it claimed it was a good constitution. It was a ceasefire with an administrative structure attached, and the structure has outlived every attempt to replace it.

What the Court actually said

The judgment is narrower than it is usually reported. The Court did not rule on whether power-sharing between three groups is legitimate in principle, and it accepted that in 1995, with the shooting barely stopped, an arrangement of this kind might have been justified. What it found was that the arrangement could not be permanent — and that Bosnia had made that harder to argue by voluntarily ratifying Protocol 12 to the Convention, a general prohibition on discrimination that fewer than half the members of the Council of Europe have accepted at all. The presidency bar breached Protocol 12; the bar on the House of Peoples, where fifteen delegates are divided five, five and five with no seat for anyone else, breached Article 14 read with the right to free elections. Strasbourg has since repeated itself four times. Azra Zornić, who declared herself a citizen of Bosnia and Herzegovina and nothing more, won in 2014, and the Court observed pointedly how long it had been. Samir Šlaku, of Albanian origin, won in 2016. Ilijaz Pilav, a Bosniak living in Republika Srpska, and Svetozar Pudarić, a Serb living in the Federation, won in 2016 and 2020 on the mirror-image point: the rule excludes members of the constituent peoples too, whenever they live on the wrong side of the internal line. On the 2013 census that is more than a quarter of a million people, and it is the part of the case hardest to file away as a minority grievance.

The Court did not tell Bosnia what shape to be. It ruled only that whatever shape the country chooses cannot permanently close its highest offices to citizens who decline to tick one of three boxes — a narrower finding, and a much harder one to argue with.

The condition that was dropped

For six years the European Union treated implementation as a gate. The Stabilisation and Association Agreement was signed on 16 June 2008 and then left in a drawer, with Sejdić-Finci named as the thing in the way. Round after round of talks produced nothing, because the parties were not negotiating about Roma and Jewish candidates; they were using the file to reopen the entire electoral system. At the end of 2014 a British and German initiative persuaded the EU to change tack. The Council adopted a "new approach" on 15 December 2014, swapped the precondition for a written commitment to reform signed by the presidency and endorsed by parliament, and let the agreement enter into force on 1 June 2015. Bosnia applied for membership on 15 February 2016, was granted candidate status on 15 December 2022, and on 21 March 2024 the European Council agreed to open accession negotiations once further conditions are met. Sejdić-Finci is still on the list of those conditions. It has been carried from a gate to a commitment to a condition to a bullet point, and the constitution is unchanged at every stage.

Three positions and no majority

It is worth setting out why this is stuck without pretending that any of the three main positions is unreasonable on its own terms. Bosniak parties, leaning on the Constitutional Court's ruling of 2000 that all three peoples are constituent across the whole territory, argue for a stronger central state and for elections in which every citizen counts the same, and hold that the entity structure ratifies the population transfers of the war. Croat parties, principally HDZ BiH, argue that as the smallest of the three they can have their presidency member chosen for them by a Federation electorate in which they are outnumbered — which has happened — and want a guarantee of what they call legitimate representation; their opponents read the mechanism as a third entity under another name. Serb parties in Republika Srpska argue that Dayton gave the entities their competences, that the state has been accumulating those competences ever since through the decisions of an unelected international official, and that the correct direction of travel is backwards. Each position can be squared with the Strasbourg judgment. Each can also be used to block whichever version of it helps somebody else. That is not deadlock by accident; it is a system with three vetoes in it, all of them currently held.

Above all of it sits the Office of the High Representative, created by the peace agreement and handed the power, at a conference in Bonn in December 1997, to impose legislation and remove officials outright. It has used both hundreds of times. The current holder, Christian Schmidt, took office on 1 August 2021; Republika Srpska and Russia dispute his legitimacy on the ground that the UN Security Council never endorsed the appointment, and the other Western governments hold that no such endorsement is required. His predecessor's final act, on 23 July 2021, was to impose amendments criminalising the denial of genocide and war crimes, after which Serb representatives boycotted the state institutions for months. What is being denied is not in legal doubt: the International Criminal Tribunal for the former Yugoslavia convicted Radovan Karadžić and Ratko Mladić of genocide over the killing of more than eight thousand Bosniak men and boys at Srebrenica in July 1995, and the International Court of Justice found on 26 February 2007 that genocide had been committed there. A commission set up by the Republika Srpska government and chaired by the Israeli historian Gideon Greif reported in 2021 that it had not, a conclusion rejected by the memorial centre at Potočari, by the survivors' associations and by the courts. When the UN General Assembly designated 11 July as an international day of remembrance on 23 May 2024, 84 states voted in favour, 19 against and 68 abstained, with Serbia and Republika Srpska campaigning hard against it and a further twenty-odd members not voting at all. That tally is the plainest available measure of how unsettled this remains, thirty years on.

What a visitor is standing in

None of this is hidden and none of it needs an interpreter. Cross from Sarajevo into East Sarajevo, a municipality of Republika Srpska on the same hillside, and the number plates do not change — deliberately: uniform plates were introduced in 1998 using only the letters that look identical in the Latin and Cyrillic alphabets, so that a car could not be identified by where it came from — while the script on the signs does, and the schools on either side of the road teach different curricula from different books. In Mostar the same line runs down one boulevard. In several Federation cantons children of different declarations still attend one building on separate shifts or through separate doors, an arrangement known as two schools under one roof, introduced around 2000 as a temporary measure for returning refugees and ruled discriminatory by Bosnian courts without going away. The 2013 census, the first since 1991, took nearly three years to publish because the entities could not agree how to count; when the figures appeared in June 2016 Republika Srpska rejected them. They found about 3.5 million residents where there had been about 4.4 million, and recorded Bosniaks at 50.11 per cent, Serbs at 30.78, Croats at 15.43 and everybody else at 2.73. That last figure is fewer than a hundred thousand people. It is the constituency Sejdić and Finci went to Strasbourg for, it is too small for any party to need, and on the form it has no name of its own — only the box marked Others.