The re-election of Donald Trump has reverberated around the globe, raising concerns long before he has even taken his place back in the Oval Office. While his maneuvers pose serious implications for Ukraine and Taiwan, the situation is particularly alarming for the small nation of Bosnia and Herzegovina. As the country approaches the 30th anniversary of its establishment, the legality of the US-crafted constitution has come under scrutiny in a landmark civil rights case at the European Court of Human Rights (ECtHR). This case has led to the provisional striking down of nearly the entire ethnic power-sharing framework that has characterized Bosnia’s governance. However, the 2023 Kovačević decision is now facing an appeal from a coalition of hardline nationalists and their foreign allies. If the court adheres to its own precedents and upholds this ruling, it will be the Trump administration that oversees any subsequent attempts—or failures—regarding constitutional reform. Should Trump align himself with Bosnia’s sectarian hardliners, he would be opposing the very reforms that the Biden administration sought to support in the face of growing civil society and political opposition. This would effectively breathe new life into a political project that has been largely associated with the Clinton administration. Conversely, if Trump commits his administration to meaningful constitutional reform in Bosnia in line with the ECtHR’s rulings, he would achieve something no US administration has managed since 1995: genuine progress in Bosnia. This accomplishment would serve as a significant diplomatic milestone for a leader who has branded himself as the greatest deal-maker in American history. Yet, irrespective of Trump’s inclinations, the Kovačević decision is already in jeopardy.
Challenging Ethnocracy
Bosnia and Herzegovina is frequently described as hosting one of the most intricate constitutional frameworks in the world, a result of the 1995 US-brokered Dayton Peace Agreement (DPA) that ended the Bosnian War. Annex IV of the DPA serves as Bosnia’s constitution, a complex document characterized by convoluted sectarian power-sharing arrangements that deny many citizens fundamental rights to democratic representation. Since 2009, however, significant portions of this illiberal “ethnocracy” have been invalidated by the ECtHR through a series of decisions that underscore how the Dayton constitution prioritizes ethnicity over other legal and democratic principles in Bosnia. The initial of these rulings, the Sejdić-Finci case, highlighted the inability of members from Bosnia’s Jewish and Romani communities to run for the state presidency, which is exclusively reserved for the country’s “constituent peoples”—namely Bosniaks, Serbs, and Croats. In a notable passage, the justices reflected on the historical context of Bosnia’s constitution as a post-war remedy. The court asserted that the initial impulse for ethnic power-sharing could not be utilized to indefinitely deny Bosnian citizens their fundamental democratic rights.
Following the Sejdić-Finci ruling, the court continued to favor a succession of Bosnian civil rights appellants, all of whom argued that the country’s exclusionary constitutional regime stripped them of essential democratic norms, thereby violating the European Convention on Human Rights, which is enshrined within both the Bosnian constitution and the DPA. In August of last year, the Strasbourg court ruled in favor of appellant Slaven Kovačević, stating that Bosnia’s constitution “unfairly limited the right to vote and be elected for large segments of the population through a ‘combination of territorial and ethnic requirements’ that collectively amounted to ‘discriminatory treatment’.” The court emphasized that even if an “ethnic representation system is maintained in some form, it should be subordinate to political representation.”
Enter Schmidt
Bosnia’s entrenched sectarian political elite did not take the ruling lightly. Hardline nationalist factions, particularly from the Croat nationalist HDZ party, quickly lodged an appeal against the ruling through Bosnia’s official state institutions, where they currently hold power in a grand coalition. They also sought the support of the High Representative, Christian Schmidt, the chief international envoy in Bosnia, who is known for his alignment with Croat nationalist interests. Schmidt’s repeated partisan interventions on behalf of the HDZ—including his controversial alterations to electoral laws during the 2022 general elections—have drawn criticism and scorn, even from his native Germany. There were questions regarding Schmidt’s legal standing as High Representative during his appeal, as he had not received backing from the international steering board overseeing his office.
In a written submission to the court last October, Schmidt positioned himself as the ultimate authority on the Dayton constitution, claiming that the Kovačević ruling posed a threat to the peace and security of Bosnia, echoing the rhetoric of the HDZ. No previous High Representative has publicly opposed an ECtHR ruling as Schmidt did. Furthermore, doubts arose regarding the legitimacy of Schmidt’s involvement; he had not secured the necessary support from the international steering board for his participation in the appeal. Bosnian civil rights activists contended that he was acting in a personal capacity and raised concerns about the source of the funds he used to engage one of the most expensive law firms in the UK for representation in Strasbourg.
The Court’s Final Word
Meanwhile, the US Embassy in Sarajevo and the State Department have maintained a conspicuous silence on the matter. Apart from a single post on X in August of last year, no US official has made any substantial remarks regarding the Kovačević decision or the efforts by Croat nationalist hardliners, the Croatian government, or High Representative Schmidt to overturn the ruling. US officials in Bosnia frequently engage with local leaders, issuing lengthy condemnations of individual parliamentary sessions and detailed critiques of stalled reform processes, even commenting on the establishment of new national parks. Yet, there has been no commentary on the fate of Bosnia’s US-brokered constitution. It seems improbable that the US lacks an opinion on this critical issue. If the silence stems from a desire to respect the independence of the ECtHR as an institution, then the US has a particular obligation to rein in Schmidt. The absence of such intervention suggests that the Biden administration may tacitly support efforts to deny Bosnian citizens their basic democratic rights as outlined in the European Convention on Human Rights.
This leaves the future of Bosnian democracy resting in the hands of the Grand Chamber of the ECtHR. No institution is more familiar with the contradictions inherent in Bosnia’s constitutional regime than the Strasbourg court. The justices are acutely aware of the maneuvers of the Croatian government, its hardline proxies in Bosnia, and Christian Schmidt. They will also recognize the Biden administration’s duplicitous silence masquerading as impartiality regarding the Kovačević case, all while considering the uncertainty of potential Trump administration policies concerning constitutional reform in Bosnia and Herzegovina. Therefore, the court must uphold its original ruling, not solely because it aligns with established case law, but because it is the court’s role to affirm one fundamental principle: the principle of justice, rather than politics. As the saying goes: fiat justitia ruat caelum.
Dr. Jasmin Mujanović is a political scientist and senior nonresident fellow at the New Lines Institute. He is the author of two books, “Hunger and Fury: The Crisis of Democracy in the Balkans” and “The Bosniaks: Nationhood After Genocide.”
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