Political institutions and employers favor the “top three” ethnic groups, leaving minorities out in the cold. From IWPR.by Mirza Ajnadzic and Ajdin Kamber 2 July 2012
SARAJEVO | The peace agreement that ended the 1992-1995 war left Bosnia and Herzegovina with a massively complicated, multitier political system. But constitutional principles designed to bind Bosniaks, Serbs, and Croats together in common structures have ended up depriving minority groups of rights to which they would otherwise be entitled.
The preamble to the constitution makes a fundamental distinction between two categories of citizen – the Bosniaks, Croats, and Serbs, termed “constituent peoples,” and a second group, the “others.” That includes Roma, Jews, other minorities, and people who do not choose to declare themselves part of any ethnic group.
The constitution formed part of the Dayton peace agreement, which ended the war and can be changed only by both houses of Bosnia’s Parliamentary Assembly.
The constitution explicitly restricts membership in two elected institutions to the “constituent” groups. These are the three-person presidency – conceived in Dayton as a Bosniak-Serb-Croat triumvirate – and the House of Peoples, a senate-style upper chamber with 15 seats divided equally among the three main groups, with no opportunity for others to enter it.
Observers say the constitution is discriminatory and institutionalizes the less-than-equal position of the “others.” It should therefore be amended as soon as possible, they say.
In 2006, two prominent “others” challenged their exclusion from eligibility for the House of Peoples and state presidency, taking their case to the European Court of Human Rights in Strasbourg.
Dervo Sejdic, of Roma heritage, and Jakob Finci, who is Jewish, won their case in 2009, with judges ruling that preventing them from standing for election was discrimination.
The ruling also said the Bosnian constitution should be brought into line with the European Convention on Human Rights by removing discriminatory provisions.
“This convention says that we are all equal and that individual rights supersede collective rights,” Sejdic said. “I therefore found it illogical that [Bosnia’s constitution] recognized only constituent peoples and their rights and obligations. It states that there are categories of ‘others,’ without even defining who they are or what their rights are.”
Although the constitution draws this distinction, Bosnian law does not have mechanisms for identifying ethnic background. It may seem clear what an individual is from his name, but the issue takes on urgency when a person has to declare membership in one or another group on a document.
The ruling said that while a declaration of Bosniak, Croat, or Serb affiliation was a prerequisite to election to the presidency and senate, “ethnic affiliation is not to be taken as a legal category, since it depends exclusively on one's self-classification.” So the division into constituent peoples and “others” is built on shaky foundations. “There is neither a legal obligation to declare one's ethnic affiliation, nor objective parameters for establishing such affiliation,” the judges wrote.
Still, state institutions use self-declaration as a way of maintaining ethnic quotas and, intentionally or not, perpetuating the exclusion of “others.”
IWPR contacted the office of one Bosnian presidency member and was told that anyone running for the presidency has to fill in a form that asks for the applicant’s ethnicity. The country’s central election body confirmed that prospective candidates for both the presidency and the House of Peoples must fill out a form asking the same question.
Bosnia will not be able to join the European Union unless it amends its constitution in line with the European court ruling.
Although negotiations have been taking place among Bosnia’s ruling parties in an effort to resolve this problem, no substantive progress has been made. In essence, each party is prepared to see the constitution amended only in a way that does not threaten its stake in the ethnic division of posts.
Mladen Sain, a professor of international law at the University of Sarajevo, said fixing the problem would go beyond a rewrite of the constitution.
“What would happen if, in Bosnia’s case, one member of the tripartite presidency was from the ‘others’ category, another from the category of Bosniaks, and one a Serb? We'd still have one nation being discriminated against – in this instance the Croats.”
Sain said, “The whole system on which the current constitution is based – designed to protect the interests of the three constituent peoples – needs to be abandoned, because it will always discriminate against one side or another. If we do decide to get rid of this system, then the entire presidency and its role will have to be reformed, too.”
Sain said the court decision offered few pointers to how the changes it implied should be made.
The constitutional principle that contrasts the majority groups with the rest also has effects outside the political system. Ethnic affiliation can count for a lot, for example, when applying for a job.
Job application forms for the Bosnian Central Bank, as a state institution, include a question on ethnicity, with the usual four options – Bosniak, Croat, Serb, and “others.” The bank is trying to maintain a balance among its employees that reflects the overall demography of Bosnia as it was reflected in the 1991 census, before the war broke out. After years of disagreement on how the population should be counted, the next census is to take place in April 2013.
Jasmin Brutus, a photographer from Sarajevo, explained how ethnic identity comes up during job recruitment.
“A friend of mine applied for a job for which he was qualified and met all the requirements. But none of that seemed as important as his ethnic affiliation. At the job interview, he was openly asked which ethnic group he belonged to – which is outrageous,” Brutus said.
Bosniak by background, Brutus said he does not feel part of any other ethnic group. When asked, he said, he places himself in the catch-all “others” category.
“I simply declare myself a citizen of this country. All I care about is its progress”, he said. “Therefore, I declare myself a member of the ‘others.’ ”
He is not the only one. Osvit Seferovic chairs a group based in Mostar called the Civil Front of the Others.
“We are a civil front consisting of those who do not consider themselves members of any of the three constituent nations, even if their names and surnames indicate that they should be,” he said.
These “others-by-choice” Bosnians do have a preference – for the constitution and system to acknowledge Bosnian citizenship as the sole form of formal national identity.
Seferovic said the separation of Bosnia’s people along ethnic lines was what led the country into war 20 years ago.
“This division is being used today for the purpose of gaining votes in the elections,” he said. “I believe the civil option [declaring oneself a Bosnian citizen] cannot be reconciled with the national one, which discriminates against all those who are different.”
Damir Basic, a journalist and architecture student in Sarajevo, is another self-declared “other.”
“If I see that I’m unable to get a job and exercise my rights as a citizen of this country solely because I don’t declare myself a Bosniak, Serb, or a Croat, then I will move abroad,” he said.