The Fundamental Contradictions and Anomalies in the Sphere of Human Rights in the present-day Bosnia-Herzegovina

Dr. Zlatko Hadžidedić

● Member of International Institute IFIMES


The International Institute for Middle-East and Balkan Studies (IFIMES) in Ljubljana, Slovenia, regularly analyses events in the Middle East and the Balkans. Dr. Zlatko Hadžidedić, Member of International Institute IFIMES presents his article entitled “The Fundamental Contradictions and Anomalies in the Sphere of Human Rights in the present-day Bosnia-Herzegovina". It is published in its entirety.


The Fundamental Contradictions and Anomalies in the Sphere of Human Rights in the present-day Bosnia-Herzegovina


The very concept of universal human rights, as developed in contemporary democracies, presupposes the pre-eminence of the concept of the individual in the modern world. Here the individual is understood as the only universal unit spreading across the entire corpus of mankind, crossing all physical boundaries and all its racial, ethnic and national divisions and sub-divisions. The rights of each and every individual are thus understood as part of the corpus of universal human rights, equally applicable to all divisions and sub-divisions of human race. No racial, no ethnic, no national nor individual unit is to be left out of this universal corpus of human rights: indeed, the very concept of the nation, as a voluntarily created sub-division of human kind, is based on the idea of the individual’s fundamental right to unite with other individuals and thereby create a single common political unit, called the nation-state, within whose boundaries the universal rights of each and every individual are to be equally applied, protected and promoted.

The nation-state has been promoted as the only legitimate form of political organization in the modern world and spread without limitations across the globe precisely on the basis of its presumed voluntary nature: such a state is defined as a creation of the free will of free individuals to unite and live their lives in common, and thereby establish themselves as its citizens, and legitimized as the only political framework within whose boundaries they can freely apply, protect and promote their individual rights. In other words, as the only form of state with the concept of human rights built-in into its foundations.


This is all common knowledge in most countries of the contemporary world, those that have embraced the nation-state as it own constitutional model. Yet, this is not so in Bosnia-Herzegovina, where all these common notions resonate in a completely uncommon way.


Therefore, before we tackle the issue of human rights as a category that has or has not been properly applied, protected and promoted in the present-day Bosnia-Herzegovina, it is necessary to pose the questions whether Bosnia itself is designed as a nation-state or not (as the nation-state is defined above), whether the individual (both as a human being and as a citizen) is a constitutionally relevant unit in Bosnia or not (which is equally questionable with respect to the individual’s basic rights), and even whether the inhabitants of Bosnia have ever been granted the most fundamental rights to voluntarily unite and freely define themselves as Bosnians, or not.  


These questions may seem greatly surprising to those who take these concepts (the nation, the nation-state, the citizen, and the individual) and their mutual relations for granted. In Bosnia, most people take them for granted, too, and would be no less surprised that someone from their own country sees a need to pose such questions. Yet, there is an urgent need to question the unique semantic meaning that these concepts have acquired in the Bosnian political context and to analyze their specific boomerang-effect on Bosnian society.


Anyone who visits Bosnia can easily notice that local people use the words ‘nation’ and ‘nationality’ with reference to the country’s three major ethnic identities, rooted in the three major religious traditions – Christian, Catholic and Orthodox, and Islamic – present and intertwined in Bosnia for centuries. Rather than applying these words to the entire corpus of the country’s citizens, as practised in the rest of the world, all contemporary legal and political documents in Bosnia-Herzegovina insist on separating these three major ethno-religious collective identities into three ‘nations’ or ‘nationalities’, or – as officially labelled in the country’s current constitutional document – three ‘constituent peoples’. In this document – unlike in the country’s earlier constitutions – these ‘nationalized’ collective identities are granted respective territorial autonomies, and thereby for the first time in history made ‘territorialized’ and separate.


In this way, the current constitution has recognized these identities’ aspirations to ‘nationhood’ and thereby practically granted them the right to their own ‘statehood’, respectively. Such is the ultimate boomerang-effect of the semantic shift that the words ‘nation’ and ‘nationality’ suffered in the Bosnian political context and Bosnian society has eventually suffered this shift’s ultimate consequences: the country’s three major ethno-religious identities have been forcefully separated into three militarily-controlled territorial zones, and then – being treated as presumed homogenous ‘national communities’ – they have been recognized the right to territorial and political self-determination, respectively.   


It was the 1992-1995 war in Bosnia – due to the atrocities and its infamous policy of ethnic cleansing – that created such separate territories for these ethno-religious identities; indeed, the war was for the most part organized as the project of ethno-religious separation, under the pretext that the country’s so-called ‘national communities’ had their own right to self-determination, and that their right to self-determination was not consumed by the country’s 1992 referendum for self-determination and independence. The same claims are being repeated nowadays by the same ethno-religious oligarchies, assuming that the three major ethno-religious identities, by virtue of calling themselves ‘nations’, are the only proper units to consume the right to self-determination, and that Bosnia – consisting of citizens who share these and other identities – should have never been treated as such nor granted this right. Moreover, two of these three identities are automatically identified with the neighbouring nations, Serbia and Croatia, with which they share the same religious traditions, so that they sometimes launch secessionist claims and ambitions to unite with the latter. Clearly, as long as this identification along religious lines persists, there will be a permanent latent threat of secessionism and irredentism in Bosnia. Yet, this identification only follows the logic of the automatic classification of the Bosnian major ethno-religious identities as ‘nations’ or ‘nationalities’. And, ‘automatic’ means that those who belong to these identities have no constitutional option but to classify themselves as members of the ‘Serb’ and ‘Croat’ ‘nations’ and practically identify themselves with nationals of Serbia and Croatia.                   


It was already due to Bosnia’s pre-war constitution that political rights shifted from individual citizens to the collective ethno-religious identities. Instead of offering the basis for individual citizens to consume their right to self-determination by voluntarily uniting and constituting a single nation, the pre-war constitution offered the basis for these collective identities to proclaim themselves the only proper units to consume this right, and to launch their secessionist claims and the war itself. Thus the war was not launched by outlaws who acted totally outside the then-constitution: it was launched and waged precisely along the lines of ethnic separation proposed by the constitutional negotiations known as the Lisbon Conference, held in 1991 and 1992 under the chairmanship of the Portuguese diplomat Jose Cutilleiro. During the war, the military forces – claiming to act as legitimate defenders of the three ethno-religious identities – occupied the territories following the lines of ethnic separation projected by the Lisbon Conference and, effectively, realized its goals on the ground. The subsequent ‘peace negotiations’ and, ultimately, the General Framework Agreement for Peace in Bosnia-Herzegovina created in Dayton, Ohio, shifted these lines to some extent; yet, ever since the Lisbon Conference, all these constitutional negotiations adopted the logic of ethnic separation as their founding principle. And, this logic followed the logic of the semantic shift, unique to Bosnia, that its ethno-religious identities were to be promoted under the label of ‘nationalities’ or ‘nations’, which effectively functioned as a recognition of their right to self-determination and, consequently, the right to create their own separate territories and, eventually, their own states. Both the warring parties and the peace mediators were simply applying the implicit logic of this semantic shift, whatever the means and consequences on the ground.                    


In the post-war constitution, framed as the Dayton Agreement’s Annex 4, involuntary and pre-determined membership in the collective ethno-religious units labelled as ‘nations’ or ‘nationalities’ has become the only conceivable framework for consummation of individual political rights. For, only individuals classified as belonging to one of these three ethno-religious identities have been recognized as eligible to assume political and administrative positions. And the usual practice has become to classify them automatically, on the basis of their families’ religious traditions. Those who have consciously rejected such a classification have been denied the right to hold any political positions if they have only opted to declare themselves as Bosnian nationals: in the post-war Bosnia, Bosnian nationality has not been recognized as a constitutional category and the citizens of Bosnia-Herzegovina can only be constitutionally recognized by declaring themselves as belonging to one of the country’s three major ethno-religious identities.


In this way, not only has the post-Dayton Bosnia not been designed as a nation-state – it has even been denied the very possibility to function as one. For, its citizens have systemically been denied the right to act as the country’s citizens, being instead systemically stimulated to act exclusively as members of the three ‘constituent peoples’ and consume their individual rights exclusively in accordance with the boundaries constructed in the process of ethnic separation and fortified by the current constitutional arrangement. Thus citizens’ fundamental right to unite and live their lives in common, that is, to constitute a single nation, has been denied by the constitution itself: not only have they been stimulated to act as members of the three ‘constituent peoples’ – they have systemically been denied the right even to perceive themselves as members of the single, Bosnian nation. 


The political system developed out of the current Bosnian constitution has not only been ignorant of these fundamental political rights; it has also been ignorant of the most fundamental concepts of modern society, such as the individual and the citizen. Even the question of collective rights protected by this system boils down to the issue of whether these three ethno-religious identities – once they have been labelled as ‘nations’ and once they have established their bounded territorial units – posses the collective right to secede from Bosnia or not. Such a system is totally ignorant of the very concept of human rights, which is even theoretically inconceivable without the concepts of the individual and the citizen. Therefore, it is not a problem that the Bosnian political system treats its citizens inadequately, as is the case with systems commonly denounced for the abuse of human rights. It is true that many of these citizens were expelled from their homes during the war, and that they usually experience political, social and economic pressures upon their return, pressures usually coming from ethnically defined local authorities if the returnees happen to belong to another ethno-religious identity. However, the main problem is that the system does not recognize them as citizens at all, nor does it perceive them as individuals with their own rights and their own will; instead, both in theory and in social reality, it projects them as ciphers supposed to occupy and fill in the territories claimed by the only units that the constitution and the system recognize – the three ethno-religious identities labelled as ‘nations’, ‘nationalities’ or ‘constituent peoples’.                   


From the standpoint of human rights, then, such a system and the constitution it is based on are both fundamentally flawed. They can not be changed by any constitutional amendments, whatever amendments may promise on the surface. Bosnia-Herzegovina needs a radically different, new constitution. A new constitution has to take the concepts of the individual and the citizen as its foundations, in order to introduce and promote the very concept of human rights.


Of course, a new constitution can not be unaware of the social changes that Bosnian society has undergone due to the previous policies of ethnic separation and ethnic engineering. Unlike in the pre-war Bosnia, where the major ethno-religious identities were totally mixed and intertwined, they have now become separated into several distinct territorial units. These collective identities are now concentrated into such units and these units already function as autonomous regions. In a new constitutional arrangement, these or any other regions have to enjoy a respectable degree of autonomy if Bosnia is to regain its political and social stability. Any attempt at centralization of power could only produce strengthening of the secessionist claims and probably even renewed violence. It is politically irresponsible to foster any illusions that the pre-war ethno-religious mixture can somehow be re-designed and re-engineered and that the country can miraculously go back to its pre-war condition. Too many people were killed in the war, too many people have not returned to their homes nor do they ever intend to, after all the war atrocities they experienced. They already live their normal lives in other countries, and some other people have moved to their homes, having probably been expelled from their own ones. The policy of ethnic cleansing and ethnic engineering has produced irretrievable results. As a matter of political realism, new regions can only be formed on the basis of the existing ethnic concentrations and their already-established boundaries, since neither can be re-arranged or undone.


Of course, in any future constitutional arrangement, regions’ autonomy must not encroach on the functions of the central government and impede its daily operations, as is the case in the current political system. Therefore, the country’s two semi-sovereign entities have to transform themselves into several autonomous regions, without the right to secession, following the model of autonomous regions from the Spanish Constitution. To achieve this, it is necessary to avoid the catch of identifying regions with the major ethno-religious identities promoted as ‘nations’, as is the case with the two existing entities; also, to avoid the catch of identifying regions’ aspirations to autonomy with the latter’s claims to self-determination. For, regions’ powers may well be balanced with the central government’s sovereignty without undermining it; yet, the claims to self-determination by the self-promoted ethno-religious ‘nations’ and their semi-sovereign entities can not be consistent with the country’s sovereignty. 


As in all modern constitutions, sovereignty has to be explicitly granted to the people of Bosnia-Herzegovina, consisting of all its citizens as sovereign individuals. Since sovereignty is indivisible, it may not be divided between the country’s three major ethno-religious identities, and they may only be granted a substantial level of territorial-regional autonomy. Autonomous regions, whatever their ethno-religious composition, and the country as a whole, have to be founded on civic principles, defining all inhabitants as Bosnian nationals with equal rights and freedoms, regardless of their ethnic, religious, regional or other identities. In this way, the current ethno-religious, pre-political identities may well be transformed into regional, political ones, and therefore be defined by real and rational interests rather than by abstract and absurd ethno-nationalist claims. Eventually, it would resolve the fundamental contradictions in the sphere of human rights that characterize the present-day Bosnia-Herzegovina. 


Ljubljana, November 7, 2014