Dr. David Pettigrew: High Rep in BiH is resisting those democratic principles he should be promoting

Here is Dr. Pettigrew's essay, titled “The Dayton Peace Accords 30 years Hence: The Urgent Need for Constitutional Reform to Support Democracy and the Rule of Law in BiH":

"While the General Framework Agreement for Peace in Bosnia and Herzegovina brought an end to the aggression and genocide in 1995, the document was deeply flawed from its founding moment. The Dayton Agreement was especially undermined by its legitimation of Republika Srpska, an entity that came into existence through the commission of atrocities that have been judged to be war crimes, including genocide. The Dayton Agreement was further weakened by the establishment of a Constitution based on ethnic divisions, divisions that have been subsequently exacerbated by Bosnian Serb and Bosnian Croat nationalists. In addition, the European Court of Human Rights has ruled repeatedly that due to restrictions related to the right to stand for election and to voting rights, the Constitution of BiH is in violation of fundamental human rights laws. Hence, reform of the BiH Constitution imposed by the Dayton Accords is long overdue in order to ensure support for a democratic future for Bosnia’s citizens under the rule of law.

It cannot be forgotten that the entity Republika Srpska declared itself in 1992 as an ethnically homogeneous territory and proceeded to remove non-Serbs through atrocities that have been judged to be war crimes, including genocide. The ICTY Trial Chamber found in the Karadžić case that "there existed a common plan to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb claimed territory." The Chamber asserted moreover that "the Accused and the Bosnian Serb leadership agreed on ...the measures they would take to create their own ethnically homogeneous state." The recognition of the entity Republika Srpska at Dayton amounted to a reward for a successful genocide and other war crimes, which remains a deeply problematic aspect of this agreement that has still not been adequately addressed by the international community.

Further, the Constitution implemented with Annex 4 of the Dayton Agreement identified the so-called “constituent peoples”: Bosniaks, Serbs and Croats. This arrangement established political representation and voting practices based on ethnic divisions rather than on a principle of shared citizenship with equal rights. The Constitutional priority of these ethnic divisions has encouraged ultranationalist, ethnoterritorial claims that drove the aggression in the 1990s, whether in the form of Milorad Dodik’s ongoing threats of secession and his efforts to block EU and NATO accession in collaboration with Vladimir Putin, or in the form of Dragan Čović’s insistence on the need for “legitimate” (nationalist) Bosnian Croat representation, or the Croatian Academy of Sciences and Arts’ proposal that Bosnian Croats need to be protected through the creation of a third entity.

Moreover, the Constitutional arrangements based on, and privileging ethnic identity have been judged consistently by the European Court of Human to be in violation of fundamental human rights outlined by the European Convention on Human Rights. The Court reasoned in the case of Sejdić-Finci v. BiH that while the concept of "constituent peoples" may have seemed necessary "to end a brutal conflict marked by genocide, discrimination based solely on a person's race cannot be objectively justified in today's democratic society”. Further, 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 can no longer be any reason to retain the contested constitutional provisions." The Court expected democratic arrangements to be made without “further delay”.

A report by the Council of Europe Commissioner for Human Rights expressed great concern, in April 2023, that the ECHR Judgements have not been implemented, insisting that, “The longstanding non-execution of these judgments is a reminder that the legacy of the violent past still lingers in Bosnia and Herzegovina 30 years after the war, and is impeding social cohesion, reconciliation, and progress.” The report also emphasized that, “It is imperative that the authorities place focus on building a state based on the equality of citizens, rather than on further embedding ethnic discrimination in the Constitution and the electoral legislation.”

At the recent NATO Parliamentary Assembly in Dayton, Ohio, BiH Presidency Members Denis Bećirović and Željko Komšić spoke with urgency about the need for Constitutional reform. Presidency Member Bećirović alerted the world to Republika Srpska’s recent escalation of its “attacks on the Constitutional order of BiH” and warned against “allowing Russia to open a second front in the Western Balkans”. He called for comprehensive democratic reforms and set forth a vision for a “unified democratic country governed by the rule of law.” Presidency Member Komšić, for his part, emphasized human rights issues, including the fact that the ECHR has judged repeatedly that Bosnia and Herzegovina “discriminates against its citizens on identity issues and violates the human rights of its people”. He emphasized further “the need to urgently work on correcting this injustice towards the citizens of BiH, because this is a conditio sine qua non for further progress in BiH.

Thus it was quite incomprehensible when the High Representative stated his opinion recently that “We cannot expect Bosnia and Herzegovina to be successful as a civil state.” This public statement shows a lack of sensitivity to ECHR judgements, to initiatives and statements by civic organizations such as KRUG 99 in Sarajevo, and to the recent statements by members of the Presidency of BiH. At best, the High Representative’s position is a failure of vision, while at worst, it appeases Bosnian Croat and Bosnian Serb ultranationalists who resist democratic reforms and continue to seek to destabilize the state to achieve their separatist goals of the 90s.

It is imperative that Bosnia move ahead with the long-awaited Constitutional reforms, including the implementation of the ECHR rulings. Such transformational reforms would finally offer the possibility of addressing the ethnic divisions, secessionist threats, and human rights violations that plague the Dayton Constitution, while supporting democratic reforms under the rule of law. Rather than resisting the vision of a civic state, the Office of the High Representative should engage the European Commission for Democracy through Law (Venice Commission) to work with a Task Force involving citizens’ organizations to draft a Constitution that would be consistent with democratic principles in the EU. Such democratic reforms in support of human rights and rule of law would lay the foundations for a peaceful civic future for the citizens of a unified Bosnia, a peaceful future that would honor the memory of the victims of the aggression and genocide that took place from 1992 to 1995."