The signing of Dayton Peace Agreement in December, 1995, rendered a precedent in modern reflections on international law – more precisely, on constitutional and public law. A brutal war finally ended, but ethnic conflicts remain active as the years pass. An artificial peace was reached at the time and it was more than obvious that it did not stand on a fertile ground.
The Constitution of Bosnia and Herzegovina declared the following: Serbs, Bosniaks, and Croats are three constituent nations living on the territory of a sovereign and independent state. When it comes to the people of Republic of Srpska, the Serbs are the only ones who can elect or be elected for the Presidency of Bosnia and Herzegovina. This directly denies the political rights of the Bosnians and Croats who also are from the Republic of Srpska. It implies that only a person who proclaims himself or herself as a Serb and member of this particular ethnicity may be an eligible candidate for the Presidency on state level elections. Thus, it is essential to mark this permitted discrimination as a constitutional gap.
The case Pilav v. Bosnia and Herzegovina attests a landmark legal reasoning that fundamental human rights are not only violated, but constantly denied. The European Court for Human Rights ruled in favour of Mr. Pilav, whose request to be a candidate for the Presidency, as a Bosnian from the Republic of Srpska, was denied. The scope of Dayton Peace Agreement included transitional political arrangements with the aim of post-conflict development. Short-term solutions became a long-term legal nightmare; a rare precedent was adopted, whereby a peace agreement was integrated into a domestic legislature as the supreme law. Ineffective and non-functional legal protection is also seen through the status of national minorities. According to the report of the Organization for Security and Cooperation in Europe, there are currently 17 national minorities present in Bosnia and Herzegovina (The OSCE…, p. 1). The state is therefore obliged to guarantee the protective measures for every citizen equally. In another landmark case of Sejdic and Finci v. Bosnia and Herzegovina, which confirmed the existence of discrimination, Bosnia and Herzegovina expressed their ignorance in safeguarding the minorities – and their subsequent right to a decent life through equal access to political and economic opportunities. Furthermore, the members of Roma and Jewish population were unable to run for the House of Peoples at the state level, which is actually in accordance with the current law.
For a country that is creating its path towards the European Union, such violations of international human rights institutions are intolerable. The presence of international organizations ensures that judicial decisions will be obeyed. Although Bosnia and Herzegovina has signed and ratified the majority of human rights conventions and covenants, it is unsound that the legislature at the state level ensures discrimination. Thus, when the Dayton Peace Agreement was signed, internationally accepted norms and standards became automatically mandatory. According to the Annual Report on the Results of the Activities of the Institution of Human Rights Ombudsman of Bosnia and Herzegovina, 2966 appeals were received in 2015, and 1790 cases were related to the violation of civil and political rights (Annual Report…, p. 9). The relation between the Constitution, legislature and internationally accepted documents on human rights is tangled due to internal divisions and animosity between the political representatives of constituent people. This issue will not be solved as long as citizens of this country are observed through the prism of ethnicity. In 1993, Bosnia and Herzegovina ratified the accession and succession agreement for the International Covenant on Civil and Political Rights. In Article 3 of the herein Covenant, the following is defined: “The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant” (United Nations…). This Article precisely denotes the obligation of the State to ensure political rights. Since it is a signatory member; accordingly, Bosnia and Herzegovina is not respecting the international document, under which the State agreed to enforce it. Further in this Covenant, Article 25 states the political rights of every citizen:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country“.
By referring to a current situation, the term “every citizen” is taken selectively in the legislature of Bosnia and Herzegovina. As it was aforementioned, only the constituent people are able to enjoy and practice their political rights, but with precise limitations –since only the Serbs can fully use their rights in the Republic of Srpska, (Bosniaks and Croats in the Federation.) Another issue relates to the correlation between the territory, the residence, and the enforcement of this specific human right. One specific entity or a canton cannot be an exclusive territory for enforcement of political rights of a particular ethnicity. Since minorities live across the country, it is obvious that only a full inclusion in political process will safeguard the rights of every citizen. The complexity of a permanent discrimination can also be measured with the political interventionism by the European Union institutions. Bosnia and Herzegovina started its stabilization and accession negotiations in 2005. – the precondition, among numerous others, were legal reforms. The European Court of Human Rights rendered a decision on violation of Article 14 (prohibition of discrimination) of the European Convention on Human Rights, in 2009. Afterwards, the EU institutions demanded amendments to the Bosnian Constitution and the modification of election law in accordance with the international standards and anti-discrimination policies. This case quickly became a manipulation tool for the representatives of three constituent peoples.
In search for extended political powers they have ignored the needs of minorities and failed to harmonize the national laws. It is significant to add that the official European agenda was shifted from legal to economic reforms, right after the unsuccessful negotiations which lasted for almost ten years. Incongruity exists; the court ruled, by majority votes, that Bosnian domestic law is violating Article 1 and Article 14 in conjunction with Article 3 of the European Convention on Human Rights (Lilyanova, 2015). The right to free elections was argued from the standpoint of the European legal practice, whereby every citizen who holds a nationality of a Member State, is allowed to stand for elections. Transferring this to the perspective of Bosnia and Herzegovina, it would imply that every citizen who holds a nationality of this country should be allowed to stand for elections. Thus, the question remains, on what can actually serve as effective sanctions for systems with discriminative legislature and policies in the field of human rights. In the case of Bosnia and Herzegovina, politicians managed to overcome sanctions raised by the international community (European Union institutions and Office of the High Representatives). If a voting system is discriminative, solely based on the principle of ethnicity (three constituent peoples), then limitations to national minorities should be abolished. This can be achieved by the enforcement of legal measures (adjustment of election law), but also by political emancipation of citizens – influencing the awareness about tolerance and multicultural environment of their own country.
A permanent discrimination will exist in further years, as a result of the inadequate effect that the Dayton Peace Agreement has proven to have. The generality of the Constitution, regarding the protection of political rights of national minorities, must be a subject of legal reforms in a due time. Accordingly, all above-mentioned cases must serve as a guideline for political representatives in a policy-making process, if Bosnia and Herzegovina wants to establish effective and trustworthy democratic governance. The system should not be privatized by three constituent peoples, but rather it should be fair, open, and protective towards all citizens.
By Dino Pehlic
This article has been published in Lawyr.it Vol. 5 Ed. 2. All references used can be found at the end of that issue.