Pettigrew: Instead of opposing the vision of a civic state, the OHR should advocate for reforming Dayton in line with democratic principles

(Patria) - Professor of philosophy and Holocaust and genocide studies at Southern Connecticut State University David Pettigrew has criticized the Office of the High Representative (OHR).

In a text titled "The Dayton Peace Agreement, 30 Years Later: The Urgent Need for Constitutional Reforms to Support Democracy and the Rule of Law in BiH," Pettigrew stated that instead of opposing the vision of a civic state, the OHR should advocate for reforms to the Dayton Peace Agreement to align it with EU democratic principles.

- Although it ended the aggression and genocide in 1995, the General Framework Agreement for Peace in Bosnia and Herzegovina is a document that has been deeply flawed from the very beginning - Pettigrew emphasized.

According to him, the Dayton Agreement was particularly undermined by the legitimization of the Republika Srpska, an entity created through the commission of crimes that have been declared war crimes, including genocide.

- The Dayton Agreement was further weakened by the adoption of a Constitution based on ethnic divisions, divisions that were subsequently exacerbated by the nationalism of Bosnian Serbs and Croats.

Furthermore, the European Court of Human Rights has repeatedly ruled that due to restrictions on the right to stand for election and the right to vote, the BiH Constitution is in violation of laws concerning fundamental human rights.

Therefore, the reform of the BiH Constitution imposed by the Dayton Agreement should have been implemented long ago to ensure support for the democratic future of BiH citizens in accordance with the rule of law - writes Professor Pettigrew.

He also says that it cannot be forgotten that the entity of Republika Srpska declared itself an ethnically homogeneous territory in 1992 and began removing the non-Serb population through crimes that have been adjudicated as war crimes, including genocide.

- The Trial Chamber of the ICTY in the Karadžić case established that "there was a common plan to permanently remove Bosnian Muslims and Croats from the territory to which the Bosnian Serbs laid claim."

The Chamber further established that "the accused and the Bosnian Serb leadership agreed on measures to be taken to create their own ethnically homogeneous state."

The recognition of the RS entity in Dayton represented a reward for successful genocide and other war crimes, which remains a deeply problematic aspect of this agreement that the international community has still not adequately addressed - Pettigrew points out.

Furthermore, he writes that the Constitution implemented by Annex 4 of the Dayton Peace Agreement identified the so-called "constituent peoples": Bosniaks, Serbs, and Croats.

- This solution established political representation and voting practices based on ethnic divisions, rather than on the principle of common citizenship with equal rights.

The constitutional priority of these ethnic divisions has fueled the ultranationalist, ethno-territorial demands that guided the aggression of the 1990s, whether in the form of Milorad Dodik's constant threats of secession and his efforts to block EU and NATO membership in cooperation with Vladimir Putin, or as Dragan Čović's insistence on the need for "legitimate" (nationalist) representation of Bosnian Croats, or in the form of the Croatian Academy of Sciences and Arts' proposal that Bosnian Croats must be protected by creating a third entity - writes the American professor.

Moreover, he adds, the European Court of Human Rights has consistently ruled that constitutional solutions based on ethnic identity and giving it priority violate fundamental human rights enshrined in the European Convention on Human Rights.

- The Court in the case "Sejdić-Finci v. BiH" reasoned that, although the concept of "constituent peoples" might have seemed necessary "to end a brutal conflict marked by genocide, discrimination solely on the basis of one's race cannot be objectively justified in today's democratic society."

In the case "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 for retaining the contested constitutional provisions." The Court expected democratic solutions to be determined without "further delay" - writes Pettigrew.

In a report from April 2023, he recalls, the Council of Europe Commissioner for Human Rights expressed great concern that the judgments of the European Court of Human Rights had not been implemented, insisting that "the long-standing non-execution of these judgments is a reminder that the legacy of the violent past is still present in BiH 30 years after the war and hinders social cohesion, reconciliation, and progress."

The report also emphasizes that "it is essential that the authorities focus on building a state based on the equality of citizens, rather than further embedding ethnic discrimination in the Constitution and electoral legislation."

- Therefore, it was quite incomprehensible when the High Representative recently expressed his opinion that "we cannot expect Bosnia and Herzegovina to be successful as a civic state."

This public statement shows a lack of sensitivity towards the judgments of the European Court of Human Rights, towards the initiatives and statements of civic organizations such as Krug 99 from Sarajevo, and towards recent statements by members of the BiH Presidency.

At best, the High Representative's position is a failure of vision, while at worst it appeases the ultranationalists of Bosnian Croats and Serbs who resist democratic reforms and seek to destabilize the state to achieve their separatist goals from the 1990s - states Pettigrew.

He notes that it is imperative for Bosnia and Herzegovina to move forward with long-awaited constitutional reforms, including the enforcement of the judgments of the European Court of Human Rights.

Such transformative reforms, the professor writes, would finally offer the possibility of addressing the ethnic divisions, secessionist threats, and human rights violations that permeate the Dayton Constitution, while simultaneously supporting democratic reforms in accordance with the rule of law.

- Instead of opposing the vision of a civic state, the OHR should engage the European Commission for Democracy through Law (Venice Commission) to cooperate with a Working Group that includes civic organizations in drafting a constitution that would be in line with democratic principles in the EU.

Such democratic reforms that support human rights and the rule of law would lay the foundation for a peaceful civic future for the citizens of a unified BiH, a peaceful future that will honor the victims of the aggression and genocide that occurred from 1992 to 1995 - concludes Professor Pettigrew in his text.