Bosnia’s third citizens: a story of Brčko’s exception

 “Orciny’s the third city. It’s between the other two. It’s in the dissensi, disputed zones, places that Besźel thinks are Ul Qoma’s and Ul Qoma Besźel’s. When the old commune split, it did not split into two, it split into three.”

The above excerpt comes from China Miéville’s novel The City and the City, an allegorical piece of fiction about divided spaces and communities that are conditioned into ‘unseeing’ their minutely different co-denizens. It could describe nearly any divided locality in Bosnia and Herzegovina. Unlike the third city that neither of the communities claims, villages, towns and entire regions in Bosnia and Herzegovina (BiH) were, and still are, averred to exclusively belong to of one of the dominant ethnonational qua confessional groups in the country - Bosniaks, Croats or Serbs. Brčko, a city on the river Sava in the country’s North East, witnessed some of the heaviest fighting and ethnically motivated violence during the Bosnian war, and is still one of the most disputed zones in the country. During the 1995 Dayton peace talks which ended the war, the parties could not reach an agreement on whether the strategically located city belonged to the Serb-dominated Republika Srpska (RS) or to the Bosniak-and-Croat-dominated Federation of Bosnia and Herzegovina (FBiH), the two ‘entities’ of Bosnia and Herzegovina. The issue had to be resolved by international arbitration a few years after the end of hostilities.  Faced with the unrewarding task, the intransigence of the ethnic elites and possible violent reactions, the arbitration tribunal decided that the city of Brčko and its surroundings, matching the pre-war Brčko municipal boundaries, would henceforth belong both to the FBiH and the RS simultaneously. This quasi-condominium or district officially named Brčko distrikt BiH, a designation ill at ease with the local language(s), was placed under international supervision. In December 2011 the government of the RS finally decided to recognise that the RS entity line does not run through the District of Brčko, as was the case during the war. The decision makes the international supervision obsolete, since the borders of the Brčko District are now formally recognised by both entities. This particular development might take politics of Brčko and BiH in new and unknown directions.

Supervised success story

In the initial years of the supervision most political rights were suspended in consideration of the difficult interethnic situation and the need to build a functional administration. The Supervisor, a modern version of an enlightened colonial viceroy, was appointed by the US government. He, in turn, appointed representatives to the local parliament and implemented other mechanisms of power sharing. These measures were complemented by generous international financial donations.  In 2004, the first election for the Brčko district assembly was held. Unlike the rest of the country where strong ethnic veto points were built into multiple constitutions, the instruments of power sharing in Brčko were much softer and allowed representation of non-dominant communities as well. These arrangements were highly praised by policy analysts as an innovative way of managing divided communities that at the same time disempowered ethnic entrepreneurs and encouraged cooperation across ethnic divides.  Some of the frequently quoted positive examples from Brčko are its integrated school system and multiethnic police.

Cuius regio, eius cives, or…

This celebrated ‘free town’ is not the first case in which two sub-state units share control over the third one. In the late 19th and early 20th century, the city of Fiume/Rijeka was disputed between Hungary proper and Croatia-Slavonia, but administered separately from either. More relevantly for the Brčko case, the entirety of Bosnia and Herzegovina in the same period was ruled by the joint Austro-Hungarian ministry of finance. Although both arrangements were envisaged as stop-gap measures, constant disagreements over these territories meant that the provisional settlements endured until the collapse of the Habsburg Empire.  In the latter case, citizenship and political rights depended on the compromises reached between Vienna and Budapest.

The citizenship regime in Brčko and BiH today is a product of a complex peace settlement. BiH has a two-tiered system of citizenship, in some ways similar to the former Yugoslav or even European citizenship regime. Citizens of BiH are by rule citizens of either of the entities, the Federation of BiH or Republika Srpska. Dual entity citizenship is not permitted. Political rights such as electoral rights in all elections save local, come as a package with the entity citizenship.  However, the Brčko District, a de facto third entity with matching competencies of the entities, lacks its own citizenship.

In principle, the residents of the District of Brčko should posses either FBiH or RS citizenship. By virtue of this they are entered in the electoral registers as voters in either of the two entities. This enables individual residents of Brčko to influence not only entity (RS and FBiH) democratic processes but also state level policies. In fact, state-level policies are the only ones, apart from the district level, that can directly affect the everyday life of the Brčko residents. Possessing entity (FBiH or RS) citizenship, allows the residents of Brčko to influence (at least in theory) BiH foreign policy, military, customs as well as the other few issues reserved for the relatively weak central state.  

Community without citizens

However, due to a combination of circumstance and individual (mis)fortune, there appear to be some BiH citizens, residing in Brčko, who do not posses either of the entity citizenships. Some estimates place their number at over 30,000, nearly a third of the registered residents. This lack of entity citizenship could only have happened in Brčko as all BiH citizens residing in the two entities were made citizens of their respective entities automatically.

In practical terms it means that if a fictitious person from Rudo, a town in the RS, was a pre-war citizen of Bosnia and Herzegovina and resided in her home town at the time of the independence of BiH, she would ex post facto become an entity citizen of the RS (keeping her BiH citizenship at the same time). Based on this, she would also be registered as a voter in the RS and general elections, and can only, for example, vote for the Serb member of the BiH presidency. This might not be entirely up to the best democratic standards as she might prefer to vote for an ethnic Croat, Bosniak or a non-ethnic candidate, but due to her being a citizen of the RS, she would not be permitted to do that.

What if yet another fictitious person, a citizen of BiH, resident in Brčko, without entity citizenship desired to exercise her political rights and vote for any representative of any of the state level institutions, including the parliament?  Unlike the fictitious person from Rudo, she would not be allowed to do so. Only entity citizens enrolled into the Central voters register enjoy that right.

The Office of the High Representative of the international community in BiH, recognised this deficiency in the existing arrangement and tried to alleviate the problem. One of the measures introduced was to allow Brčko residents without entity citizenship to be registered on the electoral roll of either of the entities of their choosing. Before the last general elections in 2010, just 2392 Brčko residents used this possibility.  The other measure was to let Brčko residents chose an entity citizenship. The outcomes of both have been rather mixed.  These measures are further endorsed by the recent amendments to the law on BiH identity cards. Based on the amendments, to be implemented in 2013, residents of the other two entities (RS and FBiH) can choose whether or not to have their entity citizenship registered on their identity cards. On the other hand, Brčko residents’ entity citizenship will have to appear on their identity cards, whether they agree or not, conforming to the electoral law.

Despite all of this, it appears that there is a significant number of people in the Brčko District like the fictitious person mentioned earlier, without entity citizenship. Their exact numbers are, as always, contested. Some have said that records are not up to scratch, which is probably true, as the agreement on holding a population census was reached only recently. Others say there are fictitiously registered residents in Brčko, which is true in some cases. Undeniably, however, there are those who simply do not want to acquire entity citizenship. Some say they were given a choice of citizenship or could be enlisted in the electoral role thus regaining their full suffrage. They never used that choice, so, they must be apolitical, goes the argument.

Interestingly enough, it turns out that the number of Brčko residents casting their ballots at the district election exceeded those who voted in the state election by 12,000! This seems like too much of a coincidence to be rendered simply a statistical mishap. It certainly begs a few questions. Why not assume that some individual zoon politikon in Brčko might be interested in having a direct influence on the central government unmediated by the entity citizenship which is often equated with ethnic membership or at least perceived as such?  It could be that politicians and analysts, local and international alike, were conditioned into ‘unseeing’ (to borrow Miéville’s term) other legitimate interests that go beyond ethnic loyalties. Would be it too bold to assume that at least some Brčko residents consider political membership in their ‘district’ polity as important as the others’ entity membership?

Different or equal?

Group-or-territory-differentiated citizenship is not uncommon in democracies. Indigenous peoples’ and minority rights are just some of the common examples. However, disenfranchising nationals (legal citizens) because of their sub-state political membership (implicitly or otherwise) is far less common. One of the few cases is Puerto Rico, a self-governing ‘unincorporated territory’ of the USA. US citizens who are residents of Puerto Rico cannot elect members of the US Congress, while the US federal institutions do hold significant powers over Puerto Rico.  This arrangement has raised a number of legal cases and is branded by its challengers as colonialism. Although not directly comparable, there are some apparent similarities with the case of Brčko and its citizen residents. Laws and regulations of the central state do indeed apply in Brčko and Brčko residents without entity citizenship cannot influence these laws. Such atypical arrangements undoubtedly exhibit elements of democratic deficiency.

But leaving those individuals aside or assuming that in future all Brčko residents will accept (or be forced to take) either of the entity citizenships thus being fully enfranchised (something Puerto Ricans cannot do unless they physically move to mainland USA) there are other issues relevant to citizen’s political rights that might arise from the complex asymmetric territorial arrangements. Representation and direct accountability of elected representatives is one of them. In socialist Yugoslavia, a similar question existed in relation to the autonomous provinces of Kosovo and Vojvodina and their representation in the parliament of the Socialist Republic of Serbia, but was regulated by the constitution. It currently exists in a country relatively removed from the former Yugoslav context, namely the UK and is known as the “West Lothian Question”. It relates to the right of UK MPs elected in Scottish constituencies to vote for laws that apply outside of Scotland, in other words, England and Wales. In practice, it means that, for example, Scottish MPs can vote and did vote for the introduction of university fees in England, while due to Scotland’s autonomous education system, Scottish students study free of charge.  How are those cases similar to Brčko? Residents of Brčko (with entity citizenships) in 2010 elected three MPs to the RS parliament (and to FBiH parliament as well). Although most MPs in the Western Balkan countries commonly follow the party line, those MPs could vote opportunistically. Hypothetically speaking, an MP of the RS parliament elected in Brčko, or all three of them, could cast a decisive vote in favour of certain tax reform that the electorate in the RS might be opposing. The laws would not directly affect these MPs as they reside in the District of Brčko that regulates the same tax issue independently of the RS. 

While in the case of Scotland there might be a need for representation in the Westminster parliament as it deliberates on issues that apply across the entire UK territory, as well as foreign affairs, the District of Brčko is fully autonomous from both the RS and the FBiH whose laws have no effect in the District. Thus, representation from Brčko in those entities might be at least politically questionable unless Brčko residing MPs elected to the parliaments of the RS and the FBiH are considered to constitute a sort of  ‘diaspora’ of the two entities. Whilst diaspora representation has been frequently criticised, in our case it would be an even more peculiar diaspora, one that resides in a territory that these entities consider an integral part of themselves.

What next?

Brčko might not be so much of an anomaly on its own as much as it fits awkwardly with the current political system in Bosnia and Herzegovina.  Whilst one can understand the need and desire for protection of ethnic and cultural differences, not forgetting the recent violent past, nascent inclinations for direct representation of territorial and functional interests in the political life of BiH are still blackballed. Whether the Brčko case and many of the issues arising from it could pose a challenge to this situation or even help the democratisation of BiH remains to be seen. The case of the Brčko residents who declined the offer of entity citizenship,  like the ‘breachers’ in Miéville’s novel who ignored the separation between the two cities, could open new ways of imagining post-war Bosnia and Herzegovina .