Top European rights court rejects ethnic voting, striking blow to power sharing in Bosnia

(CN) — The European Court of Human Rights ruled on Tuesday that the system for conducting elections in Bosnia and Herzegovina which forces voters to choose candidates based on ethnicity is discriminatory and should be scrapped. 

The Strasbourg-based court sided with political scientist Slaven Kovačević, who complained to the ECHR that elections in his country were undemocratic because they privilege the three largest ethnic groups: Bosniaks, Croats and Serbs. The current arrangement “amplif[ies] ethnic divisions in the country and undermine[s] the democratic character of elections,” the seven-judge panel wrote. 

The Balkan country’s political system was set up by the Dayton Agreement, a peace agreement signed in 1995 at the Wright-Patterson Air Force Base and named for the nearby city of Dayton, Ohio. The settlement put an end to the three-and-a-half-year-long Bosnian War, part of the larger Yugoslav Wars, which left more than 100,000 people dead. 

The three ethnic factions agreed to a power-sharing arrangement that only allowed “constituent peoples,” or Bosniaks, Croats and Serbs, to serve in parliament and created a three-way presidency made up of one person from each group. Other ethnic groups, which now make up about 4% of the population, were not given any consideration. 

The agreement also created the two “entities” of Bosnia and Herzegovina, which operate fairly independently but share a government. 

Kovačević, who serves as a political adviser to Željko Komšić, the current Croat member of the Presidency of Bosnia and Herzegovina, argued that he cannot vote for the candidates of his choice because they are not from from the “right” entity or of the “right” ethnic background. 

The court agreed, finding that the country was not truly democratic. Bosnia and Herzegovina “is not a genuine democracy but an 'ethnocracy' in which ethnicity — and not citizenship — was the key to securing power and resources,” the judges wrote in the 6-1 decision. 

The decision, which was leaked on Monday by news outlet Istraga.ba, could upend the entire political system, but it is unclear if the country will actually implement the ruling. In 2009, the ECHR ruled in Sejdić and Finci v. Bosnia and Herzegovina that the ethnic restrictions on the office of the presidency were discriminatory. Dervo Sejdić and Jakob Finci, who are of Romani and Jewish ethnicity respectively and therefore not eligible to stand as candidates, brought the complaint. 

The country’s prime minister, Nermin Nikšić, expressed reservations that the ruling will meaningfully change the political system. “Unfortunately, experience teaches us that the verdict itself in Bosnia and Herzegovina does not mean that it will automatically be implemented,” he said in a statement. 

Bosnian Serb politician Nenad Nešić, who currently serves as the minister of security, pushed back against the decision, saying that it was “jeopardizing the will” of the country’s 1.2 million Bosnian Serbs. “No reasonable and intelligent person would ever interfere with the national identity of others or the will of the majority of other collective peoples,” he said in a statement. 

Since the 2009 decision, four more complaints have been brought by citizens of Bosnia and Herzegovina who were declared ineligible to run for president because of their ethnic backgrounds. The court has held in every case that the system is illegal. However, the country has refused to implement any changes and the Council of Europe, the body which oversees the court, has been unable to force the government to alter the voting stem. 

Nearly a decade ago, the United Kingdom and Germany teamed up to put diplomatic pressure on the country to make the needed changes to its constitution. In 2021, a multi-party coalition pledged to implement all of the outstanding judgments from the ECHR within six months. All of these efforts have failed. 

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