SURVIVING THE PEACE The Struggle for Postwar Recovery in Bosnia-Herzegovina

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Bosnia update, Monday, September 18, 2023
The ECHR decision ~ RS separatism in overdrive ~ Corruption

Here's another legal development that will be fateful for Bosnia-Herzegovina, if it has any chance of being implemented.

On August 23, the European Court for Human Rights at Strasbourg (ECHR) delivered yet another finding stating that the Bosnian political structure is anti-democratic. This is the latest in a string of such decisions starting with the Sejdić-Finci case in 2009, through the 2014 Zornić decision; the 2016 Ilijaz Pilav case; the 2016 case of Samir Šlaku; and the 2020 case of Svetozar Pudarić.

All of these previous ECHR decisions find fault with Bosnia's system of political representation as it was set up in the Bosnian constitution (Article IV of the Dayton agreement). This structure leans heavily toward ethnic primacy, leaving individual rights—and those of minorities—far behind. Ethnic domination was established by separatists during the war, and then, with the help of Richard Holbrooke and other international negotiators, it was enshrined in the Dayton constitution.

By way of ending the war with concessions to each of the leading parties involved, Bosnia was divided into two entities: the Republika Srpska, dominated by Serbs (49% of Bosnian territory and, at present, about a third of the country's population), and the Bosnian Federation, with parts of its land dominated by Croats, and the rest by Bosniaks. Governmental bodies were established at 13 levels, including the state level, the two entities, and ten Cantons in the Federation. Added to that was the District of Brčko.

At the state level, Bosnia-Herzegovina was given a bicameral Parliament with a House of Representatives and a House of Peoples. The House of Peoples is composed of 15 members, five from each of the three main ethnicities.

The two entities also each have bicameral parliaments along similar lines. These bodies elect the members of the state-level House of Peoples. The Republika Srpska elects the Serb members of that body, and the Federation elects the Croat and Bosniak members.

Above all this at the state level there is the three-part presidency, composed of a Serb, a Croat, and a Bosniak.

You can already see the faults in this system. A Serb who lives in the Federation cannot vote for a Serb candidate for president. Nor can she run for the presidency or a seat in the House of Peoples. It's the same in every direction: A Bosniak or Croat living in the RS cannot vote for a Bosniak or Croat presidential candidate, respectively, nor can their ethnicity be represented by a delegate to the state-level House of Peoples from that entity. Neither do they have the possibility of running for office in those bodies as "minority" ethnicities in the "wrong" entity.

Add to that the nearly non-existent legal status of the "others," i.e., citizens of Bosnia who are not Serb, Croat, or Bosniak. And there are many who, regardless of the religion of their grandparents, do not choose to declare as members of one ethnicity or another. They are "Bosnians."

All of the above ECHR cases responded to the impossibility of members of the "wrong ethnicity in the wrong place" to run for office. As a Romani citizen, Dervo Sejdić had no way to run for president; Jakob Finci, a Jewish leader, was in the same position.

The ECHR deemed the Bosnian electoral system undemocratic and called for a constitutional change, but it was not able to compel one. In the 14 years since the Sejdić-Finci decision, no change has been effected. It is clear that the present situation of domination by ethno-nationalist mafioso/politicians (see the Corruption Corner below for elaboration) is too lucrative to relinquish for a virtuous thing like democracy.

All the political parties are caught up in this system, with the stronger ones gaining the most advantage, regardless of ethnicity. Part of the way they secure advantage is by maintaining a stance of enmity to the other ethnicities—while, in fact, the nationalist leaders are cooperating at a high level across ethnic lines to maintain their entrenched power.

The August 23 decision came in response to a lawsuit filed by Slaven Kovačević, a Sarajevo-based political scientist who does not register as a member of any ethnicity. He is a political consultant to Željko Komšić, leader of the anti-nationalist Demokratska Fronta (DF). Kovačević's case differs from its predecessors in that he was not trying to run for office, but simply to vote for a candidate in the Serb-controlled entity.

This must have been a legal approach rather than a personal one, as Mr. Kovačević, member of an anti-nationalist party, would not have wanted to vote for one of the hard-core separatists who dominate both the regime and the opposition in the RS. However, the point that citizens are barred from voting for the candidate of their choice at several levels is still critical.

In response to Kovačević's complaint, the ECHR stated that all of Bosnia-Herzegovina should be one electoral unit, so that citizens can vote for the candidates of their choice at the national level regardless of where they, the voters, live. Evaluating the country's political system, the Court assessed that the combination of ethnic and territorial requirements both on voters and candidates was inimical to the workings of a democracy.

The present system makes ethnicity more important than many more concrete aspects of a citizen's life, such as gender, employment, pensions, education, and much more. When any of these elements acquires an ethnic label attached to it, the value of such element tends to be trumped by fraught nationalist considerations. If you wake up in the morning thinking not that you are a working woman, but a Serb (and so on) Working Woman, then you are going to be so much the more susceptible to division and animosity toward other working women, for reasons that are purely virtual—but powerful.

The ECHR recognizes all this and calls for the ethnic card to take second place to the civic one. In its recent decision it provided alternative proposals for the House of Peoples: abolish it; restrict its voting power to questions of vital concern to a specific ethnicity; or require that it represents "others" and all ethnicities, rather than just the main three.

The Court declared, “No one should be forced to vote only according to prescribed ethnic lines, irrespective of their political viewpoint. Even if a system of ethnic representation were maintained in some form, it should be secondary to political representation, should not discriminate against ‘Others and citizens of Bosnia and Herzegovina’ and should include ethnic representation from the entire territory of the State.” (BIRN, August 29)

In a 31-part tweet in late August, the Democratization Policy Council offered incisive analysis of the ECHR decision, noting in twitter #23, "The bottom line is this: ECHR ruling further highlights what cripples BiH’s democratic and developmental potential – the dead hand of entrenched, extensive, self-reinforcing and increasingly Western approved oligarchic ethnocracy."

The DPC's series of twitters wraps up by predicting that the ethno-national elites, as before, will do nothing: "...the playbook has been used for 30 years. It remains to be seen whether support for development of a new social contract will finally materialize, with an emphasis on citizen-focused governance." The authors promote "municipalization," that is, using Bosnia's 143 municipal units as the core element of the democratic process, in order to place those processes at the level where civic participation is the most direct.

Ongoing RS separatism and grandstanding

You'll remember from my August 25 blog entry that on August 11, RS president Dodik and Miloš Lukić were indicted by the Bosnian State Prosecutor's Office for disobeying a law recently decreed by High Representative Christian Schmidt. Schmidt had decreed two laws: that recent laws passed by the RS Parliament nullifying the actions of the Constitutional Court were void, and that failure to respect the High Representative's decisions was a criminal offense.

The Prosecutor indicted Dodik for disobedience and Lukić for failure to make Schmidt's decrees official law by publishing them in the RS Gazette. The two men face a possible punishment of up to five years in prison. Events of the last few weeks occurred with this indictment as the backdrop.

At the end of August a theretofore unknown group called the Committee for the Defense of Serb Rights in the Federation requested permission to hold a rally in Sarajevo, and the local authorities denied the request. In response, the Committee called for demonstrations at a number of locations in the Republika Srpska near the administrative line between the two entities (the inter-entity boundary line, or IEBL).

The reason for the original umbrage was quickly obscured as support for Dodik in the face of his indictment became the real motive of the demonstrations. A first round of demonstrations was held on September 1 in Doboj, Eastern Sarajevo, and Nevesinje. One news account said that there were around 2,000 attending one of the rallies, but most reports put the number in the low hundreds.

At a rally in Lopare, demonstrators chanted the name of convicted genocidaire General Ratko Mladić. At several of the demonstrations people carried banners displaying the likeness of Vladimir Putin. Protest gatherings took place again a week later, and again on the 15th of September. The stock slogan displayed at all the rallies was "Granica postoji," which means both "There is a limit" and "There is a border," the latter sense implying that there's a border between the two entities which, presumably, ought to become an international one.

Commentators in the Federation and HR Schmidt were quick to admonish that the IEBL is not a border, but simply an administrative boundary—and that the Dayton constitution makes it clear that neither entity has the right to change that border, nor to unilaterally secede.

Leaders of the Serb separatists. including state-level presidency member Želka Cvijanović, attended the demonstrations. Cvijanović announced that the rallies were "a general rehearsal for what could happen if they who are not allowing our Parliament and president to conduct their work continue to mistreat us. The President of the RS [Dodik] now has to answer for a non-existent criminal act created by a non-existent High Representative. There has been enough of the injustice which we have lived under for all these years."

In this period Christian Schmidt was tentatively scheduled to meet in Banja Luka, capital of the RS, with RS Vice-President Ćamil Duraković (former mayor of Srebrenica). On September 6, Dodik announced that "if Schmidt comes to a meeting in the RS, he will be kicked out. We will escort him to make sure he leaves as soon as possible." Dodik announced that his government was preparing an order to arrest and deport Schmidt from the entity: "This will happen. As soon as we know Schmidt is in the RS, we will organize units to remove him."

Schmidt countered that he would come to the RS when he decides to, and will ignore Dodik's threats. A buzz ensued about what kind of dangerous incident could take place if there were a confrontation between Schmidt's security patrol and local police--or agitated local separatists. Dodik poured oil on this flame by saying, "It would be best for Schmidt to give the RS a wide berth. If he must pass through, he should go as quickly as possible, via airplane, not by car." In a barely veiled threat, Dodik continued, "It is no longer possible to protect his legitimacy nor to prevent an incident. We want to safeguard stability; we don't want violence, even against some tourist from Germany [referring to Schmidt]. But we can't control everything."

In the midst of this manufactured drama, on September 11 the Court of Bosnia-Herzegovina confirmed the indictment against Dodik and Lukić, portending the eventual start of court proceedings.

On the next day HR Schmidt announced that he was not going to go to a meeting with Duraković in Banja Luka, leading to expressions of disappointment—and strong criticisms of Schmidt's "capitulation" by combative officials in the Federation. Schmidt explained why he postponed the visit to the RS, saying, “Imagine if there was an attack on me or they prohibited my entrance into the building, and that in front of camera, someone prevent me by force. Would anyone except in Banja Luka think that Europe would be happy about that? You’d have a situation that would cause crisis meetings and this country would be that much further from Europe. I acted wisely."

As it happened, Schmidt did visit Banja Luka and met with Catholic Bishop of Banja Luka Franjo Komarica a few days later. He was able to travel freely in the entity without reaction and without any sense of insecurity. Asked to comment on the characterizations of his diplomatic illegitimacy, he responded, "This is like a theater. Here it is as if the monkeys are performing in a circus. I am an accredited diplomat. Maybe someone in Banja Luka does not see things that way, but that does not interest me at all. The EU is very irritated. If this kind of stupidity continues, it does not lead Bosnia toward membership."

Thus Dodik's threats came to nothing, as has been the case for many years. But the effects of his grandstanding continue to distract his constituency from the deteriorating economic position of the RS, and to pave the way for another electoral victory for his SNSD party. We'll see if that trend holds up against a revitalized—though equally nationalist—opposition.

Dodik's most recent threat subsequent to the border drama and the arrest threat has been to declare that from now on, Serb delegates to the state-level parliament will refuse to pass any law until an examination of the Bosnian Constitutional Court is put on the agenda. This refers to Dodik's move to have foreign judges removed from the Court (see my recent blog entry for discussion of this affair). Dodik also announced that Serb officials would no longer meet with anyone from the embassies of the US or Great Britain, nor with anyone from the Office of the High Representative. Stay tuned...

Corruption

One of the most grandiose cases of corruption in the Bosnian Federation has finally resulted in the indictment of Nedim Uzunović, former manager of the profitable pharmaceutical company Bosnalijek, together with 10 of his colleagues and relatives.

Nedim Uzunović was the director of Bosnalijek's representation in Moscow and, in that position, was able to siphon great sums of money from the Russia- and Bosnia-based coffers of the company into the accounts of fictitious off-shore companies, and from there into bank accounts belonging to himself and to his friends and family.

After quite some years of investigation, the Bosnian Prosecution filed the indictment against Uzunović and the others for "organized crime, abuse of office, and money laundering" between 2005 and 2016. The indictment states that Uzunović organized a group, and planned and executed criminal acts of acquiring money illegally, harming Bosnialijek, and creating offshore companies in the British Virgin Islands and Seychelles.

Uzunović created a fictitious company called Impericon Alliance Corporation, registered in Seychelles, in 2005. Impericon had a bank account in Latvia. From Moscow via the Internet, Uzunović could transfer Bosnalijek's money to Impericon's account, from where it would then end up in the Latvian bank. There were also private bank accounts belonging to Uzunović and his associates in Cyprus, Croatia, Russia, and Bosnia-Herzegovina.

Illicit payments from Bosnalijek's Bosnian and Moscow accounts were made to Impericon for services such as "marketing consultation" and "registration of medicines." Impericon never actually provided any services to Bosnalijek, because it did not exist. Funds were recorded as being transferred to other physical and legal persons in the tens and hundreds of thousands of euros for purposes such as: over 367,000 euros to Uzunović's father-in-law for "credit"; 100,000 euros to a construction company in Zagreb; 68,000 euros for a "present for his wife"; and many more such transfers for credit or for return of credit.

All told, Uzunović and his associates embezzled nearly 11 million Bosnian KM, or well over 5 million euros, from Bosnalijek. They laundered this money by buying real estate, expensive cars, stocks, and other valuables.

A crucial part of this story was how this criminal organization managed to get away with its malversations for so long. This has to do with the Securities Commission of the Federation of Bosnia-Herzegovina, whose duty is, among other things, to supervise the operations of key players in the market. As a drug manufacturer, Bosnalijek certainly commands a position in the Bosnian economy worthy of scrutiny—but the Securities Commission has turned a blind eye to its finances for decades.

One of the members of the Securities Commission, Matej Živković, has tried to act as whistleblower to reveal the background behind the Commission's neglect. As deputy president of the body, Živković has been able to make extensive statements about the compromised behavior of his colleagues in the Commission. In the course of Živković's communication with investigators, would-be assassins carried out deadly attacks on him twice in the early part of 2012. The second time, in March, he was shot several times in the doorway to his house in a Sarajevo neighborhood.

The details of the assassination attempts have not been uncovered—and Živković, although he is still an appointed official of the Securities Commission, has not been allowed to return to his office. He has demanded that safety measures be undertaken, but this has not been carried out.

Neither has the role of negligent members of the Securities Commission been fully investigated; this is, presumably, in the offing. Meanwhile it is worthwhile to note that the members of this body are appointed by the Federation Parliament, which was, until not long ago, dominated by the Bosniak nationalist SDA. And that powerful party is not alone in benefiting from cronyism and the kind of unbridled robbery described, all too briefly, above.

There is much more to the Bosnalijek case, and there are similar cases of high-end corruption in both entities and among the political/economic elite of all three ethnicities. The indictment of Uzunović is a step—though just a small one—in chipping away at this regime of corruption.

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