Balkan Insight | Taking Bosnia’s Constitution to Court – an Unfinished Fight

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Sarajevo, capital of Bosnia and Herzegovina. Photo: Paul Rochford
Bosnia’s elites have ignored a stream of European court rulings ordering the country to make its constitution less discriminatory – but those struggling for a citizen- based state have not given up.

This article was published in Balkan Insight on October 15, 2019.

by Paul Rochford
SIT Spring 2019
Georgetown University

Azra Zornic might consider a run for a seat on the three-person state presidency of Bosnia and Herzegovina in the 2022 election – but she already knows that her candidacy will be rejected.

The 62-year-old retired constitutional court clerk self-identifies as a citizen of Bosnia and Herzegovina rather than as a member of one of its three constituent ethnic groups; Serbs, Croats and Bosniaks.

Her choice may seem reasonable to outsiders, but in Bosnia it disqualifies her from holding some of the top offices in the country.

Zornic sees this as an unjust violation of her rights. “I was raised with no ethnic affiliation; I was a Yugoslav citizen when this country [Bosnia] was [a part of] Yugoslavia. Now that Bosnia is independent, I am a Bosnian citizen,” she says, proudly and simply.

“Ethnicity should not be a constitutional category,” she adds. “I won’t identify with any of these groups out of principle.”

A federation of six republics, the former Yugoslavia brought together Serbs, Croats, Slovenes, Bosniaks, Macedonians Montenegrins and others under one socialist union, but it fell apart in a series of brutal wars in the 1990s.

Bosnia’s current constitution is a part of the Dayton Peace Agreement that ended the country’s 1992-95 inter-ethnic war, which claimed some 100,000 lives.

The agreement stopped the bloodshed. But it also divided power between the nationalist elites who had pursued the war, and turned citizens who belonged to minority ethnic groups, or rejected ethnic nationalism, into second-class citizens.

The constitution states that candidates for the three-person national presidency and the upper chamber of the national parliament must identify as ethnic Serbs, Croats or Bosniaks. The presidency and the upper chamber must be divided equally among the three groups. All others are excluded.

In 2002, after Zornic was told she could not run for the parliament because she identified as a “citizen of Bosnia,” she went to court.

Years later, in 2014, her case reached the European Court of Human Rights, ECHR, which ruled that Bosnia’s constitution was violating her human rights and discriminating against anyone who did not belong to one of the constituent groups.

Since that verdict, the ECHR and other bodies have warned Bosnia that failure to implement the verdict by amending its constitution would be a stumbling block on its path towards joining the EU.

“I never had the intention of becoming President,” Zornic says. “I just want to draw attention to the injustice; that is my goal here.”

Sejdic and Finci bring a landmark case

Parliamentary assembly of Bosnia and Herzegovina. Photo: Paul Rochford
Parliamentary assembly of Bosnia and Herzegovina. Photo: Paul Rochford

Zornic’s ruling from Europe’s top human rights court was not the first of its kind.

In 2006, two prominent members of Bosnia’s Roma and Jewish communities, Dervo Sejdic and Jakob Finci, also took their country to the same court, accusing it of constitutional discrimination against their minority groups.

In December 2009 the court ruled in their favour and instructed Bosnia to change its constitution.

The two men say their case has often been misunderstood as being solely about the plight of their minority groups in Bosnia. To them, it is a much bigger issue.

“I intended my case to address the general issue [of constitutional structure], but I made the appeal on the grounds of discrimination faced by the Roma community because we are an ethnic group that’s clearly excluded,” Sejdic recalled. “I want equal rights for everyone … we are all citizens regardless of ethnicity,” he added.

Finci echoed that point. “While members of the Jewish community are victims of political discrimination, it is a result of the current electoral system, which is generally in violation of basic human rights,” he said. “It’s a problem that affects everyone.”

Hope spied in a citizen-based constitution

Azra Zornic stands in a park near her home in Lukavica, a suburb of Sarajevo in the Serbian Entity of Bosnia. Photo: Paul Rochford

Meanwhile, Zornic says Bosnia remains under the control of corrupt nationalist parties that have also taken control of universities, hospitals and private companies.

“For ordinary citizens, there is no life in this country. If you don’t belong to [one of] the parties, you don’t have anything, you simply cannot live,” she says.

She blames political fighting and corruption in business and education for the fact that her daughter must work in a company where the boss is less qualified than she is. “Her boss only has a high-school degree but he’s a member of the same party as the business owner, so he is her boss,” she explains. Zornic’s daughter has a university degree.

“That is how this system functions; education is not recognized, hard work is not recognized. Only party membership, loyalty, and familial relationships matter.”

Sejdic, who currently serves as the Roma Rights Monitor for the Organization of Security and Cooperation in Europe, OSCE, and head of a Roma community organization in Bosnia, says being a leader of a minority community in such an exclusive system is difficult.

“One third of the Roma community has left Bosnia,” he said. “Our community already faces discrimination and exclusion worldwide when it comes to getting jobs and education.

“With political corruption ruling everything here – jobs, hospitals, universities – the problem becomes even harder to fight. If you are outside [the three constituent groups], you are really outside.”

Sejdic says a different constitution would offer people like him some hope. Under a more civil, citizen-based constitution, those now holding power would lose it, perhaps to those who decry nationalism – the same ones excluded from the system today.

“There are people here who have new voices, new ideas and a new will to change things,” he said.

Cases still flowing to the court

The Dayton agreement also divided the country into two highly autonomous entities, Republika Srpska, run by Serbs, and the Federation, shared by Bosniaks and Croats.

Each entity has its own government and parliament. Under the current constitution, only Serbs from the Serb-run entity can run for the Serbian seat on the state presidency, and only candidates from the Bosniak-Croat entity can fill the Croat and Bosniak seats.

In the past few years, two other cases have been brought to the European Court of Human Rights, highlighting other aspects of the constitution that discriminate against Bosnia’s own citizens.

One of the applicants is Iljaz Pilav, a Bosniak soldier and military surgeon in the town of Srebrenica during the 1992-5 war. Pilav was then a resident of Srebrenica, a historically Bosniak Muslim town that is now part of Bosnia’s Serb-run entity.

Srebrenica is known also as the place where Bosnian Serbs massacred over 8,000 Bosniak men and boys at the end of the war, an act that two international courts later classified as genocide.

Pilav also found himself ineligible to run for the state presidency; he tried twice to run for the Bosniak seat on the state presidency in 2006 and 2010, but was ruled ineligible because he was living in the Serb-led entity.

He submitted his case to the ECHR as well. In June 2016, the court  ruled that Bosnia’s constitution was in violation of the European Convention’s general ban on discrimination, as Pilav would have had to relocate to the Federation entity to be eligible for office based on his ethnicity.

The most recent application, awaiting judgment from the court, comes from Svetozar Pudaric, a Serb living in the Bosniak-Croat entity. Pudaric, like Pilav, was denied the right to run for the office of the presidency in the 2018 elections because his ethnicity did not match his location.

Too late for this generation?

Zlatko Hadzidedic, a political analyst and former advisor to the Bosnian state government, says Bosnia’s internal politics have grown increasingly polarized over the past two decades and are now in a three-way gridlock.

He insisted that constitutional change in Bosnia would require the direct engagement of the international community.

Hadzidedic conceded that the political and administrative partitioning of Bosnia, brought about by the Dayton peace agreement, was a necessary compromise to end the war. It partially appeased the Serb and Croat nationalists in the country whose stated wartime goal had been to carve up Bosnia and divide it between Serbia and Croatia.

But while Bosnia commanded international attention in the 1990s, world powers have since lost interest in the still fragile country amid more pressing issues, Hadzidedic said.

“Countries with credibility, such as the US, Germany or France, could help establish a solution [to the problem of Bosnia’s constitution],” he said.

“But in the realm of geopolitics there are, in fact, only a few countries that have the perspective that a citizen state is the answer, and even fewer willing to take any concrete action,” he added.

Despite that, the Bosnians who have sued their country for discrimination say they will continue their fight for EU and world attention. Zornic says it may be too late for her, but perhaps not for future generations.

“I’m trying to fight for our grandchildren,” she says. “For my [generation], it’s too late. For our children it’s too late, but maybe it can be better for our grandchildren.”

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