Discrimination!

On Tuesday, the European Court of Human Rights in Strasbourg ruled that the Constitution of Bosnia-Herzegovina discriminated against minorities by allowing only Serbs, Croats, and Muslims to run for certain public office. The lawsuit was filed several years ago by Jakob Finci, a Jew, and Dervo Sejdic, a Rom, prompting countless headlines along the lines of "Bosnia discriminates against Jews and Roma."

As is usually the case with anything concerning Bosnia, the truth is somewhat more complicated than a sound bite.

The said Constitution was drafted in 1995 as one annex of the Dayton Accords, the peace agreement that put an end to three and a half years of vicious civil war. Its authors are not Bosnian, but rather Western diplomats, led by U.S. envoy Richard Holbrooke. Most of the provisions in the peace treaty focused on a power-sharing arrangement between Bosnia’s three principal ethnic communities, the Muslims (calling themselves Bosniaks), the Serbs, and the Croats. Collective rights of ethnic communities thus took precedence over individual civil rights.

A Matter of Trust

Since it was established as a component of the Yugoslav federation in 1945, Bosnia-Herzegovina functioned as a joint venture between the Muslims, Serbs, and Croats. Public offices were allocated using the ethnic "key" ensuring a fair representation of all three communities, with set-asides for minorities such as Jews, Roma, or those from mixed marriages that identified as "Yugoslav."

Due to this arrangement, the first popularly elected Presidency of Bosnia, in 1990, had seven members: two Muslims, two Serbs, two Croats and a Yugoslav. Except the "Yugoslav" was a fiction — it was a label of convenience adopted by Muslim politician Ejup Ganic to secure an extra seat in the Presidency. Ganic’s election also demonstrated that any sort of "citizen state" arrangement, preferred over ethnic representation by Muslim leader Alija Izetbegovic, though a sound concept on paper would in practice result in a Muslim-dominated government.

The Serb, Croat, and Muslim parties never managed to reach an agreement on two issues crucial to Bosnia: whether it should leave Yugoslavia and become an independent state, and whether it would have a centralized government or be reorganized into provinces dominated by local ethnic majorities. This impasse eventually led to a complete breakdown of the political process, and in April 1992 to open warfare. After some 100,000 deaths, a million or more displaced people and widespread destruction of cities, countryside and industry, the Dayton Accords provided a tenuous answer to both issues.

Yet Muslims continued to dream of a centralized state, Croats took out Croatian citizenships, and the Serbs simply ignored the other half of the country, focusing on their own. Meanwhile, Dayton’s Western enforcers have been eroding this compromise almost from day one, imposing new institutions of the central government in the name of reforms and Bosnia’s very hypothetical EU membership.

Our Constituents and Theirs

Finci and Sejdic’s challenge was not the first time the ethnic provisions of Dayton were put on trial. In June 2000, the Constitutional Court of Bosnia upheld the challenge by Muslim leader Alija Izetbegovic that Muslims and Croats living in the Serb Republic and Serbs living in the Federation were deprived of their civil rights.

Subsequently, public offices were set aside for Croats and Muslims in the Serb Republic. Serbs in the Federation had no such luck. In 2004, for example, there was a crisis in the Sarajevo city hall, because no Serb or Croat candidates could be found to fill the seats allocated to their respective communities. One Sarajevo municipality even appointed officials that had identified themselves as "Bosniak," "Bosnian" and "Muslim" — and considered this multiethnic enough. There have never been enough Serbs in the Federation parliament for a proper delegate club, either.

On the other hand, the 2000 ruling has been invoked by Muslims to challenge the symbols of the Serb Republic and the names of many towns in that entity. The name of the Serb Republic has not been challenged only because it is explicitly stated in the Dayton Accords.

Silajdzic’s Gambit?

It would be all too easy to assume, therefore, that "Finci vs. Bosnia-Herzegovina" was just another in the string of attempts to force a change in the order of things in Bosnia through judicial activism. Muslim leader Haris Silajdzic, who has campaigned to abolish the Serb Republic altogether, enthusiastically welcome the verdict. In the words of a local AP reporter:

The Party for Bosnia-Herzegovina, one of the main Bosniak parties advocating the abolishment of the country’s ethnic division and the adoption of all EU requirements, welcomed the ruling. "Finally the discriminatory nature of the Dayton solutions was confirmed," it said, urging that the Constitution be changed.

It was Silajdzic who appointed Finci Bosnia’s ambassador to Switzerland, and Dervo Sejdic just so happens to be a member of Silajdzic’s party…

However, it would be imprudent to jump to conclusions. Finci launched his challenge before he was appointed Ambassador, and Sejdic signed on as the co-plaintiff only after it was well underway. But there is little doubt that Silajdzic intends to use Finci and the trial to advance his own agenda, as evidenced by the rush to spin the verdict to the press.

That’s Bosnia, though: everything gets tainted by power games, no matter how virtuous it may be to begin with.

Cats, Mice and Peacemakers

Constitutions are means to an end, that being a government that best serves the needs of its citizens. Not a government that best serves the needs of Haris Silajdzic — or any other politician, for that matter. Deng Xiaoping was right when he said that it didn’t matter what color the cat as long as it caught mice. But in Bosnia, the argument is not about the color of the cat, it’s who gets to be the cat, and who the mouse.

It would certainly be ideal if the ethnicity of Bosnia’s president(s) were immaterial. But for that to happen, the central government would have to have so little ability to infringe upon the rights of any community that neither the Serbs, nor the Muslims, nor the Croats would feel the need to fight over who gets to be in charge.

Such a Bosnia, however, would be utterly incompatible with the molecular-level tyranny that is the EU. In order to admit Bosnia into its orbit, the EU insists on it becoming a modern, omnipotent welfare state. This, in turn, makes it inevitable that Serbs, Muslims and Croats will clash over who gets to control that state and to what degree.

At the end of the day, if there is to be lasting peace, the communities living in Bosnia need to sit down and negotiate the terms on which they can live together — or, barring such agreement, somehow go their separate ways. Any attempt by any community to get its way while ignoring or bullying the others may well result in a new war. Perhaps that is what some people want, convinced that they were so close to "final victory" the last time around, were it not for the "treacherous" West imposing the Dayton settlement on the poor innocent victims. This is a horrible misreading of history, and it needs to be identified as such.

The Dayton Constitution has many flaws, and discrimination against minorities is just one of them. Still, it is the only thing preventing the conflagration of 1992-95 from being rekindled. And it has almost completely unraveled by now, with only a few ragged threads keeping Bosnia at peace. People who go after these threads are no peacemakers, nor do they mean well for the communities they claim to lead, be they Serbs, Muslims, Croats, Roma or Jews.

Read more by Nebojsa Malic

Author: Nebojsa Malic

Nebojsa Malic left his home in Bosnia after the Dayton Accords and currently resides in the United States. During the Bosnian War he had exposure to diplomatic and media affairs in Sarajevo. As a historian who specializes in international relations and the Balkans, Malic has written numerous essays on the Kosovo War, Bosnia, and Serbian politics. His exclusive column for Antiwar.com debuted in November 2000.