Kovačević v Bosnia and Herzegovina, and the saga of the Dayton Peace Agreement’s incompatibility with the European Convention on Human Rights  

In December 2009, the European Court of Human Rights found in Sejdić and Finci that the electoral system in Bosnia and Herzegovina was discriminatory as it did not allow a Jew and a Roma citizen to be elected in the House of Peoples (the second chamber of the State Parliament) or the Presidency. The two citizens were unable to run for elections because the Constitution recognises only three constituent peoples with the right to be elected, namely Bosniaks, Serbs and Croats. The ruling challenged the State’s power sharing constitutional arrangements which were enshrined in the 1995 Dayton Peace Agreement, a treaty that ended the most brutal war in Europe since the Second World War. The Court considered that the time was ripe for the country to seek for alternative power-sharing arrangements which do not automatically lead to the complete exclusion of the representatives of other communities.

On 29 August 2023, the Chamber of the European Court of Human Rights in Kovačević v Bosnia and Herzegovina ruled once again on the incompatibility of the Dayton’s power-sharing arrangements on ethnic lines with the ECHR. Kovačević shares key features with Sejdić and Finci but also brings some novel arguments. The latter will be the focus of this analysis. As Kovačević concerns power sharing arrangements that were codified in the Dayton Peace Agreements, I will start by outlining them. Next, I will briefly describe the facts of the case and a controversial matter on admissibility. Subsequently, I will present the Court’s findings and especially focus on its reasoning on power sharing arrangements. The conclusion will zoom out and discuss enforcement difficulties and what this judgment means for power sharing arrangements and future peace agreements in Europe.

Background to the problem: the Dayton Peace Agreement and power sharing arrangements in Bosnia and Herzegovina

Between 1992 and 1995, Bosnia and Herzegovina experienced a brutal war. The most infamous part of the war includes the Srebrenica genocide during which Bosnian Serbs killed around 8000 Bosniak males. In 1995 the war ended after the three main ethnic groups, Bosniaks, Serbs and Croats agreed to the internationally sponsored Dayton Peace Agreement. The Dayton managed to end the war but did not achieve reconciliation. Instead, the Constitution of Bosnia and Herzegovina (Constitution), which is a product of and annex to Dayton, created a State divided on ethnic and territorial lines. The State is composed of the Federation and Republika Srpska, and has three constituent peoples: Bosniaks, Croats and Serbs. Citizens living in the Federation, have the right to vote for a Bosniak and Croat, and be elected as a Bosniak or Croat in that territory. Citizens living in Republika Srpska are only eligible to vote for a Serb, and be elected as a Serb in that territory. The Constitution cemented this division by ensuring numerous power sharing arrangements based on ethnic lines. For example, the House of Peoples is composed of five Bosniaks and five Croats coming from the Federation, and five Serbs from Republika Srpska, and the Presidency (collective head of State) is comprised of three members: a Bosniak, a Croat and a Serb.

Facts of the case and admissibility

Unlike Sejdić and Finci, Kovačević was not concerned with the right to be elected but the right to choose among the parties running for elections in the House of Peoples and the Presidency.

The applicant, a political adviser to a member of the Presidency, did not declare affiliation with any of the constituent peoples. Sarajevo, where he lives, is situated in the Federation. He complained that, because of the combination of the territorial and ethnic requirements mentioned above, he had been unable to vote for the candidates of his choice in the 2022 elections. “He alleged that the candidates best representing his political views were not from the “right” Entity and/or of the “right” ethnic origin” (para 8).

The majority of judges considered the complaints under Article 1 of Protocol No 12 about the composition of the House of Peoples and Presidency to be admissible. Judge Kucsko-Stadlmayer dissented on this, arguing that the majority has failed to engage with and distinguish the standards on the right to stand for elections with the right to vote. Among others, she was worried that the outcome in Kovačević risks developing a standard whereby every European constitution must “ensure that every single voter and/or every group of voters is “represented” in a democratic body” or that “constitutions which do not provide for minority lists directly affect the voting rights of members of minorities” (para 19 of the dissent). Judge Kucsko-Stadlmayer argued that the case raised “general questions concerning the concept of parliamentary democracy” (para 19 of the dissent) and doubted the applicant’s victim status.

The Court’s findings and analysis: time to go beyond the Dayton Peace Agreement

There is no doubt that power sharing arrangements in Bosnia and Herzegovina discriminate towards non constituent peoples. They do so literally. However, given the country’s history and continued tensions between the constituent peoples, the question is whether these discriminatory measures can be justified on the grounds of peace and stability. The parties and the Court heavily engaged with these issues.

According to the applicant, the gist of the problem comes from the fact that:

“Bosnia and Herzegovina was not a genuine democracy but an ‘ethnocracy’ in which ethnicity – and not citizenship – was the key to securing power and resources […] the three dominant ethnic groups (the ‘constituent peoples’) controlled the State institutions to further their interests, whereas all the others, like himself, were second-class citizens with no real influence on the political life and future of the country” (para 44).

The Government argued that the applicant could have changed the place of residence if he wished to vote for a politician from Republika Srpska. According to the Court, such a maneuver (change of place of residence) for voting purposes would amount to false declaration of permanent place of residence which is an offence under domestic law. Next, the Government rehashed the position they held in Sejdić and Finci, namely:

“that the time was still not ripe for a political system which would be a simple reflection of majority rule” (para 46).  The Court recalled that even if the State maintains certain power sharing arrangements “there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities” (para 57).

The Court made several subtle remarks that suggest a step forward from Sejdić and Finci on why certain power sharing arrangements accorded in the Dayton Peace Agreement should come to an end. I will explain them in the three categories below. 

Ethnic privileges of constituent peoples were intended as transitory in the Dayton Peace Agreement

First, on ‘The Facts’ section of the judgment, the Court in paragraph 7 made interesting references to the “intentions” and “temporary” nature of the ethnic privileges for the constituent peoples enshrined in the Dayton Peace Agreement. For example, it noted how international mediators in Dayton did not want to accept ethnic privileges for constituent peoples but that they were included in the agreement only “because of strong demands […] from some of the parties to the conflict” (para 7). It is unclear whether the Court implied that some earlier draft outlines could outweigh the final text of the Dayton agreement or that international mediators had a superior role than the parties to the conflict. Furthermore, the Court included these remarks by referring to academic publications of international mediators and not primary sources. Next, in the same paragraph the Court stated that international mediators were “probably” aware that there is a conflict between human rights and peace and security in the power sharing arrangements, and that is why they made the “Constitution a dynamic instrument and provide for their possible phasing out” (para 7). The Court reached this conclusion by noting that the Constitution provides for primacy of the ECHR and its Protocols over other laws in the country. One may view this argument to be overstretched for two reasons. First, the Court did not explain whether the primacy of the ECHR accorded in the Constitution is only over laws or also over other constitutional provisions, including the Dayton Peace Agreement. Second, the Court did not elaborate how the Constitution can be considered a dynamic one in a way that somehow it allows over time to filter and abandon certain constitutional power sharing arrangements. Be that as it may, The Facts section reads more as Court’s interpretation rather than a description of the Dayton Peace Agreement.

Institutions are of a State and not of Entities, and State is of all citizens

The Court observed “that the Presidency is a political body of the State and not of the Entities” (para 73) and that the current system does not reflect that. With regards to the House of Peoples it held that such a legislative body can be acceptable only if its powers had “been limited to the precisely, narrowly and strictly defined vital national interests” (para 55) laws where constituent peoples could exercise their veto rights. However, given the fact that the House of Peoples has full legislative powers, “it is of utmost importance that all segments of society should be represented in the House of Peoples” (para 55). The Court appears to provide concrete suggestions under what conditions the power sharing arrangements for the House of Peoples can be compatible with the ECHR.

The Court openly challenged the current system by stating that “no one should be forced to vote on ethnic lines, irrespective of their political viewpoint” (para 74).

Peace is ensured through democracy and not through ethnocracy

Lastly, the Court shared a few remarks on how peace can be maintained in Bosnia and Herzegovina. Contrary to the Government arguments on the importance of maintaining the current system to ensure peace and stability, the Court considered “that peace and dialogue are best maintained by an effective political democracy”. The Court also cited the submissions of the Commissioner for Human Rights, “according to which the current system, based on ethnic discrimination, impedes social cohesion reconciliation and progress” (para 59). Finally, even though the Court did not openly call for the end of power sharing arrangements, it ruled that “even if a system of ethnic representation is maintained in some form, it should be secondary to political representation” (para 74) and should not discriminate against non-constituent peoples.

In light of the above, the Court found that the combination of territorial and ethnic requirements for participation in elections to the House of Peoples and Presidency amounted to a breach of Article 1 of Protocol No. 12 ECHR.

Conclusion

The Sejdić and Finci judgment remains unenforced since 2009 because, despite certain attempts made in the past, the country’s political leaders cannot reach an agreement on the scope and content of the modification of the Constitution with regards to power sharing.

I fear that Kovačević, just like Sejdić and Finci, will not be enforced by the Government until a new political solution is found through diplomacy and not judicial intervention to the problem of ethnically divided society in Bosnia and Herzegovina. Yet, Kovačević may add additional blueprint on how the future of power sharing could look like. For example, the judgment already hints under what circumstances the powers of the House of Peoples (ie limited to veto rights) could be acceptable for the Court, but also the need to reform the ethnicisation of State institutions.

McCrudden and O’Leary, who earlier criticised Sejdić and Finci, would most likely see Kovačević as another activist judgment that may destabilise power-sharing arrangements and risk future peace negotiations. Indeed, this could be considered an activist judgment, as the findings of the Court do not merely state why Bosnia and Herzegovina, as a party to the ECHR, is bound to find a more inclusive alternative for non-constituent peoples but also explained how peace can be achieved, and questioned the intentions of and the need to end some of the core power sharing arrangements on ethnic lines. In this vein, the Court expects and is calling for a transition from consociation to a non (or less) consociational future in Bosnia and Herzegovina.

However, I do not share the view that Kovačević or Sejdić and Finci risk future peace negotiations. The Court in both cases did not deny that power sharing arrangements could be accepted to end wars. Hence, in a hypothetical Russia-Ukraine peace treaty, if Russia ends the war against Ukraine and returns the occupied territories, and Ukraine agrees on power sharing arrangements in Crimea that could hypothetically exclude Tatars from the right to hold office in certain institutions, such an agreement may not per se fail the ECtHR test. Instead, Sejdić and Finci, and now Kovačević only shows that, once risks of ethnic conflicts end and the time is ripe to move to a more inclusive and democratic society, power sharing arrangements should be revisited to ensure a more democratic and inclusive society.

The complex question is who can determine when the time is ripe and guarantee that ethnic conflicts do not return if certain power sharing arrangements are abolished. President Dodik of Republika Srpska has repeatedly called for secession and issued war threats. These threats come from a political leader of an entity who denies the existence of Srebrenica genocide, glorifies war criminals and earlier this year awarded Putin with medal of honour. Certainly, the future of Bosnia and Herzegovina should not remain a hostage of Dodik’s threats, and current power sharing arrangements should be abolished to ensure the country’s progress. However, this only shows the need for more sincere engagement by international community to find a political solution to the country, and the difficulties that international courts face to fill in that gap.