Untruths about the majorization of peoples and fear-mongering about a civic state

Written for NAP: Sifet Kukuruz, legal expert

The conflict between the ethnic and civic concepts, as platforms for establishing the constitutional and political system in BiH, has been ongoing since the signing of the Dayton Peace Agreement. Until today, various accusations have been leveled against the civic concept, the most frequent being the political claim that building BiH as a civic state is, more or less, a covert way for Bosniaks to achieve dominance over the other two peoples in BiH, specifically Serbs and Croats.

On the other hand, proponents of the civic concept emphasize that it is a way to remedy the consequences of the war and to profile BiH as a stable, functional, modern European state, which is the ultimate goal enshrined in the Dayton Peace Agreement and the BiH Constitution itself. In the context of these introductory remarks, it should be stated that the current state of human rights and freedoms in BiH confirms that neither individual nor collective human rights have been adequately protected.

One of the reasons for the current state of human rights in BiH lies in the fact that individual and collective human rights are artificially pitted against each other and presented as mutually exclusive by certain political actors.

Regarding the accusations against the civic concept, it should be stated that in a constitutional system where citizens are the primary subjects of the political process, the majorization of collectivities is impossible. Namely, it is impossible to ensure the dominance of one people over another if peoples are not constitutionally and legally defined as the primary subjects of the political process, but rather citizens as individuals are. On the other hand, only a person as an individual, or as an abstract citizen, who exercises their individual rights, can express an interest and need to exercise their rights enjoyed in community with other members of their own collectivity.

The human rights system, in itself, implies dynamism and gradualness in its realization. If we follow the historical development of the idea of human rights, we can observe that the struggle for individual human rights and freedoms always preceded the demands for the realization of collective rights. This indicates the necessity of primarily affirming the human being as an individual and a human being as an independent reality.

A person as an individual primarily needs to affirm themselves in their individuality, and only then as a member, or part of, a certain collectivity.
In a system where the collectivity is not recognized as the primary subject of the political decision-making process, it is impossible to ensure unequal rights for collectivities, i.e., it is impossible to discriminate against collectivities, and ultimately to majorize one people in relation to another. On the contrary, such a thing can only be achieved in a system that places collectivities as the primary subjects of the decision-making process. Therefore, it is precisely those who advocate for the establishment of an ethnic system and who proclaim the collectivist concept of human rights that put collectivities in potential danger and expose them to the risk of being treated differently, and consequently unequally.

The thesis that the establishment of the civic concept intends to achieve the majorization of Serbs and Croats by Bosniaks is completely unfounded, and one could even argue it is irrational, given that in a constitutional and legal system based on the full equality of citizens as individuals, regardless of their ethnic, religious, or any other affiliation, the dominance of one people over another cannot be achieved. Where individuals are the main subjects of the decision-making process, collectivities cannot be threatened. In fact, in such a system, no one is threatened, neither the individual nor the collectivity. As already stated, the majorization of collectivities can only occur in a constitutional system where collectivities, not citizens, are the primary subjects of the political process.

What is particularly important to emphasize is the fact that the distinctiveness of a particular collectivity can only be realized and achieved if its members are first enabled to exercise their rights, but as individuals, as abstract citizens.

This position can be explained by an analogy where, for example, a sports team, a national collective, can demonstrate its quality only if its members are first enabled to develop as individuals in their respective clubs where national affiliation plays no role. Only an individual who has previously succeeded in realizing their interests and maximizing their potential can contribute to the collective to which they belong.

Every collectivity consists of individuals. Unlike an individual, a collectivity is an artificial construct and does not exist outside and independently of individuals. Therefore, the interest of every collectivity should be directed towards the prior individual development of each member of the collectivity, as this individual quality is the basis of collective quality.

In a system where human rights in general, and individual human rights and freedoms in particular, are sovereign values, the dominance of one collectivity over another cannot occur. In a constitutional state where the ideal of human rights is a sovereign value, human rights are beyond the reach of the political process; they are not available to the political arena where the number of votes in the legislative body would be the measure of the realization of human rights and freedoms. In a constitutional state, human rights remain the highest value, and the individual as a political subject is the most important actor in political life.

Therefore, when the individual is the primary subject of the political process, it is impossible to achieve the dominance of one people over another. On the contrary, this can only be achieved in a system where collectivities, not citizens, are subjects of the political process.

Only in a constitutional and legal system where collectivities are the primary actors of the political process can relations between collectivities be established, and these relations could ultimately favor one collectivity over another, and ultimately be detrimental to some collectivity. Only relations established between collectivities can result in unequal rights for collectivities, and ultimately be discriminatory and lead to majorization.

All those who condemn the civic concept and those who advocate for it, accusing them of wanting to subordinate certain collectivities, and specifically Serbs and Croats in BiH, are actually misusing collectivities and manipulating their interests. It is precisely the advocacy of collective rights as the basis of the constitutional and political system that opens up possibilities for discrimination and majorization.

It should not be forgotten that the approach to human rights as a primarily collective category in BiH has precisely led to mass and systematic violations of human rights, both individual and collective. The ultimate expression of such an approach to human rights has even called into question the right of some collectivities to biological existence, specifically Bosniaks in BiH.

At the same time, it is important to emphasize that the alleged protectors of collective rights in BiH persistently avoid, or more precisely, refuse to precisely define the content of rights that are of vital importance for collectivities, which confirms that the institution of collective rights is used exclusively as a means of political manipulation.
Therefore, those who want to ensure the dominance of one collectivity over another will precisely advocate for the concept of collectivist rights, because only in the concept of collectivities is it possible to establish relations of their mutual (in)equality, given that in a concept that focuses on the individual, it is impossible to produce inequality between collectivities.

In a system where every individual, regardless of the collectivity to which they belong, is equal, where the highest level of individual and collective human rights and freedoms is guaranteed by the Constitution, where the rights of collectivities are constitutionally recognized and protected through the institution of vital ethnic interest, effectively realized through constitutional court protection, it is possible to ensure the equality of both individuals and collectivities.

The fact that the interests of collectivities can be effectively protected even within the civic concept through the application of classic legal instruments such as a bicameral legislature, the definition of specific interests of particular importance to collectivities, and an effective constitutional judiciary should not be ignored.

The BiH Constitution proclaimed and established the highest level of human rights and freedoms. The ultimate expression of such aspirations is the European Convention on Human Rights and Freedoms, which in the constitutional system of BiH is superior to any other norm. This fact indicates that the future constitutional and legal development and reforms of the legal system established by the BiH Constitution must proceed in the direction of individual human rights and freedoms and the positioning of the citizen as the fundamental political subject. This is also confirmed by the fact that the necessity of reforming the BiH Constitution has been pointed out since the first day after its adoption and entry into force.

Although the current constitutional system of BiH is based on collectivities, ethnic groups, the necessity of reforming the BiH Constitution is continuously emphasized. Constitutional reform, neither logically nor legally, can imply the preservation of collectivities as the main subjects of the political process. If that were the case, it would not be a constitutional reform, as no reform can result in the preservation of the existing state and existing rules.

Constitutional reform cannot be carried out in a way that its ultimate outcome is the preservation or strengthening of the existing state or the return to the state that produced the existing state. Therefore, the direction of constitutional reform in BiH is determined by the norm that is superior to the BiH Constitution, which is the European Convention on Human Rights and Freedoms, and therefore the civic concept must be the basis of BiH's future organization.

If the building of BiH as a civic state is foreseen by the Dayton Peace Agreement and the BiH Constitution, and it is, then it follows that it is a constitutional obligation and, accordingly, the duty of all political actors to subordinate their political actions to the realization of this constitutional goal.

Of course, the fact that the civic concept does not exclude or negate collective rights should not be overlooked. The building block of every collectivity is the human being as an individual, and without ensuring the full enjoyment of individual human rights and freedoms beforehand, the human being as an individual is not even in a position to exercise their rights in community with others with whom they jointly build an ethnic, religious, or any other collectivity.

Collective rights represent a higher level in the realization of human rights, and their realization follows after the human being as an individual, an abstract citizen, devoid of any other characteristic except citizenship as a legal link to the state, has realized their rights.

The concepts of civic and ethnic are not mutually exclusive but complementary concepts, and this is what the main actors of political processes and decision-makers in BiH should take as the basis for their future political action.

In truly democratic societies, individual and collective identity do not exclude each other but include, affirm, and complement each other. The basis of collective identity is individual identity, just as the basis of collective consciousness is self-awareness.

Collective identity cannot exist without individual identity, because collective identity originates precisely from individual identity. These two identities cannot negate and exclude each other; rather, they must support and complement each other. The sooner decision-makers in BiH understand this, the better it will be for both the citizens and the peoples of BiH.