Bosnia and Herzegovina must amend its constitution in order to comply with the ruling of European Court of Human Rights, which aims to ensure equal treatment for all.
By Sheri Rosenberg
The recent Bosnian elections alarmingly reveal that ethnic divisions continue to threaten the countries very existence. This will not change until the discriminatory policies built into its very constitutional framework are removed. Fifteen years after the U.S.-brokered Dayton Peace Agreement brought peace to Bosnia-Herzegovina and ended the only genocide in Europe since the Holocaust, the accord continues, ironically, to discriminate against minorities. Indeed, the highest human rights court in Europe recently ruled that preventing two Bosnian citizens – one Jewish, the other Roma — from participating in government because of their ethnicity violates the European Convention on Human Rights’ ban on discrimination.
One of the plaintiffs in the case, Jakob Finci, a Jew, was born in a transit camp during World War II; his parents had been deported from Sarajevo to an Italian concentration camp in early 1943. Returning to Bosnia after the War, he chose to remain in Sarajevo while the three main ethnic groups—Bosniaks, Serbs, and Croats— were engaged in a vicious, genocidal civil war from 1991 to 1994. When it ended, more than 120,000 people were dead, two million people were displaced, and the Bosnian Serbs had perpetrated genocide. Interestingly, Finci, as a Jew, was considered ‘outside’ the ethnic conflict, enabling him to direct the only humanitarian organization helping all citizens of Bosnia, regardless of ethnicity.
The ‘rules of war,’ not the rules of peace, allowed him fully to participate in society. The Dayton Agreement, with its balanced power-sharing arrangement among the three warring ethnic groups turned this on its head: only Bosniaks, Serbs and Croats were officially given status as “constituent peoples” and allowed to enjoy full rights of citizenship. Minorities, including the Roma and Jewish communities were officially labeled “others” —and therefore excluded from the highest offices of government, making Bosnia the only country in Europe where citizens are constitutionally denied political participation on the basis of their ethnicity and religion.
The Finci case goes straight to the heart of the paradox, and forced the court to confront a tension simmering quietly below the entire Dayton structure: A decade and a half after the genocide, does the law permit an exception to the fundamental right of equality when it is claimed that this very discrimination is necessary to consolidate the peace?
The court rightly answered no, ruling that Bosnia’s constitution is discriminatory in its exclusion of Jews and other minorities from participating in government.
During the frenzied Dayton negotiations, the rights of Finci and other minority groups were, at their most benign, simply forgotten, and at their most insidious, intentionally bargained away. This is not uncommon. In the process of pursuing peace during charged ethnic conflicts, the value of equality is often bartered. In the Finci case, the court accepted this tradeoff, stating that, “when the impugned constitutional provisions were put in place a very fragile cease-fire was in effect on the ground. The provisions were designed to end a brutal conflict marked by genocide and ethnic cleansing.” The court has now concluded that given Bosnia’s progress since the war the time for tradeoffs had passed.
Some suggest that the court was wrong and recklessly injected itself into a delicate peace, making a dangerous situation worse. This fear is misplaced. The court declared that racial discrimination has no place in 21st Europe, and it refused to tailor a narrow exception based upon a hypothetical ground of ‘political necessity.’ In the end, ethnic exclusion is not only unjust, but also unproductive politically, as the current state of affairs demonstrates, because it perpetuates the discriminatory culture that fueled conflict in the first place.
Now Bosnia is at a dangerous crossroads. On October 3, Bosnians went to the polls and the results point to a deadlock on ethnic lines. The president of the Serb-dominated Republic of Srbska ran on a platform of secession from Bosnia and boldly declared that Bosnia will not exist in fifteen years.
Even prior to the elections, noting a dramatic deterioration of the political climate, European Union foreign ministers stated recently that their forces may stay past their mandate, should the situation require, and a growing number of commentators and government officials warn that ethnic divisions and political paralysis mean that Bosnia stands on the precipice.
In order to step away, the fundamental value of equality – the bedrock of justice – must be weaved into the country’s very social fabric. The past fifteen years have proven that a democratic society with a patchwork of ethnic groups cannot develop when exclusionary policies and laws are paramount. Allowing full participation of all ethnic groups will be an incremental yet important step toward breaking the deadlock.
To become a member of the EU all potential member states must comply with judgments from the European Court of Human Rights. This provides a significant incentive for Bosnian politicians to seek compliance. The Bosnian parliament should, therefore, amend its Constitution in advance of the next general election to ensure equal treatment for all. For Bosnia to have a chance to transition from genocide to sustainable democracy, justice must meet peace.
Prof. Sheri Rosenberg, the Director of the Human Rights and Genocide Clinic at the Benjamin N. Cardozo School of Law was co- counsel on the Finci case.
This article was first published by UN Global Experts on Wednesday October 20th, 2010.
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