It is imperative that Bosnia and Herzegovina move forward with long-awaited constitutional reforms, including the implementation of the judgments of the European Court of Human Rights. Such reforms would finally offer the possibility of addressing the ethnic divisions, secessionist threats and human rights violations that permeate the Dayton Constitution, while supporting democratic reforms in line with the rule of law.
This was assessed for Fena in his review “The Dayton Peace Agreement, 30 Years Later”, by Professor of Philosophy and Holocaust and Genocide Studies at Southern Connecticut State University and a member of the Board of Directors of the Genocide Studies Program at Yale University. Prof. Dr. David Pettigrew.
He believes that the Office of the High Representative (OHR), “instead of resisting the vision of a civic state”, should engage the European Commission for Democracy through Law (Venice Commission) to cooperate with a Working Group that includes civil society organizations to draft a Constitution that would be in line with democratic principles in the EU.
As Pettigrew pointed out, such democratic reforms that uphold human rights and the rule of law would lay the foundation for a peaceful civic future for the citizens of a unified Bosnia and Herzegovina, a peaceful future that will honor the victims of the aggression and genocide that occurred from 1992 to 1995.
He believes that, although it ended the aggression and genocide in 1995, the General Framework Agreement for Peace in Bosnia and Herzegovina is a document that has been deeply flawed from the start. The Dayton Agreement, he said, was particularly undermined by “the legitimization of Republika Srpska, an entity that emerged from the commission of crimes that were declared war crimes, including genocide.” It was further weakened, he said, by the adoption of a Constitution based on ethnic divisions.
Professor Pettigrew further states that the European Court of Human Rights has repeatedly ruled that the Bosnian Constitution is incompatible with laws relating to fundamental human rights due to restrictions on the right to stand for election and the right to vote. Therefore, the reform of the Constitution of Bosnia and Herzegovina imposed by the Dayton Agreement is long overdue to ensure support for the democratic future of the citizens of Bosnia and Herzegovina in accordance with the rule of law.
Noting that the Constitution implemented by Annex 4 of the Dayton Agreement identified the constituent peoples of Bosniaks, Serbs and Croats, he assesses that this solution established political representation and voting practices based on ethnic divisions, rather than on the principle of common citizenship with equal rights.
– The constitutional priority of these ethnic divisions encouraged the ultranationalist, ethno-territorial demands that were the guiding principles of aggression in the 1990s – Pettigrew pointed out.
Moreover, he adds, the European Court of Human Rights has consistently ruled that constitutional solutions based on and prioritizing ethnic identity violate fundamental human rights as outlined in the European Convention on Human Rights.
– The Court in the case of Sejdić-Finci v. BiH reasoned that, although the concept of ‘constituent peoples’ may have seemed necessary ‘to put an end to a brutal conflict marked by genocide, discrimination solely on the basis of one’s race cannot be objectively justified in today’s democratic society’. In the case of Zornić v. BiH, for example, the Court insisted that more than eighteen years after the end of the tragic conflict there could no longer be any reason for maintaining the contested constitutional provisions. The Court expected democratic solutions to be established without ‘further delay’ – stated Professor Pettigrew.
He also recalls that in a report from April 2023, the Council of Europe Commissioner for Human Rights expressed great concern that the judgments of the European Court of Human Rights had not been implemented, insisting that “the prolonged non-enforcement of these judgments is a reminder that the legacy of the violent past is still present in Bosnia and Herzegovina 30 years after the war and is hindering social cohesion, reconciliation and progress”. The report also stresses that “it is necessary for the authorities to focus on building a state based on the equality of citizens, and not on further embedding ethnic discrimination in the Constitution and electoral legislation”.
– It was therefore completely incomprehensible when the High Representative recently expressed his opinion that ‘we cannot expect Bosnia and Herzegovina to succeed as a civil state’. “This public statement shows a lack of sensitivity towards the rulings of the European Court of Human Rights, towards the initiatives and statements of civic organizations such as Circle 99 from Sarajevo, and towards the recent statements of members of the BiH Presidency, Željko Komšić and Denis Bećirović,” Professor Pettigrew told Fena news agency.
