Bosnia and Herzegovina's Salto Mortale

By: Prof. Dr. Džemal Sokolović, ANI Krug 99

The case of Slaven Kovačević vs. the State of Bosnia and Herzegovina before the European Court of Human Rights in Strasbourg has turned into its opposite, into a case where the "state" of Bosnia and Herzegovina is acting against Mr. Kovačević, its citizen. Is a 'state' that turns a legal dispute, in which its citizen seeks protection of his rights, into its own salto mortale? Truly – is it? We can only get a meaningful answer to this question if we establish, theoretically of course, who Ms. Mijić, the agent (?) of the 'state' of Bosnia and Herzegovina, and Mr. Kovačević, a citizen of that same state, represent. As for the empirical answer to this question, in the case of the agent, it could be interesting for investigative bodies as well. Incidentally, agents representing the state are appointed by the Presidency of Bosnia and Herzegovina according to the Constitution. Thus, Ms. Mijić in this case is actually an agent of the Council of Ministers of Bosnia and Herzegovina, but in the continuation of this theoretical analysis, she will be presented as an agent of the state.

So, who do Mr. Kovačević and Ms. Mijić represent? The answer is quintessential, as it is the answer to the Hamletian question of the state of Bosnia and Herzegovina and its 'to be or not to be'.

Who does Mr. Slaven Kovačević represent? By fighting for his individual right, Kovačević is fighting for the rights of all citizens of Bosnia and Herzegovina. In doing so, he is actually confirming his adherence to the principle of the individual as the foundation of civil society. Moreover, he is thus fighting for a democratic structure of the state, which does not exist without a society in which the rights of its citizens are not endangered. But, it is precisely this 'state' that is now rising against him and his fight for the state. It is interesting and important that the Court remains consistent with itself, from the very beginning of the individual struggle of citizens of Bosnia and Herzegovina for their human rights, from the Sejdić and Finci case to the most recent one, ruling in their favor. By supporting Kovačević's position, the Court in Strasbourg has ruled that the state of Bosnia and Herzegovina is ONE, which is the fundamental position of political philosophy from Socrates to Hegel. In doing so, the Court proves, and this is what impresses every legal philosopher, that it does not only stand on the position of positive law (which per definition starts from the circumstances in which it arises), but on natural law, which the philosopher and Protestant G.W.F. Hegel calls philosophical law. By transcending the level of positive law reached by the Dayton Agreement and the Constitution contained therein, the Court is helping the 'state' of Bosnia and Herzegovina to approach the status of a State, a state without quotation marks. How does the Court, assisted by Mr. Kovačević and all other applicants before the Court, achieve this? Very simply! Consistently with the postulate of natural law, law based on reason and justice, the Court establishes Bosnia and Herzegovina as ONE electoral body. On that basis, the Court restores to all citizens of Bosnia and Herzegovina, not just to citizen Kovačević, the right to be equal in every part of the state territory. This right is usurped by the current Constitution!

Why is this Socratic-Hegelian position of the state as ONE important for understanding the concept, and not just the existence, of the state? The state, namely, is the general. To be so, general and not some particular, the state must consist of every individual, including Messrs. Sejdić, Finci, Pudarić, Zornić, etc., all the way to, and especially, Mr. Kovačević. A state as One can only arise on the basis of the Individual, of each of its citizens. Otherwise, the state will be a stage for permanent conflicts of those, whatever they may be, particularities, especially ethnic ones, as is the case with the 'state' of Bosnia and Herzegovina, represented by Ms. Mijić. Only individuality is the solution to every conflict between the particular, any (ethnic, racial, religious, etc.) and the general (state). This is what citizen Kovačević aims for and what is the starting point of a democratic state. And this is the position of the Protestant Hegel. Undeniable and logical. Therefore, credit must be given to both the Court and Mr. Kovačević.

Who does Ms. Monika Mijić, the 'acting agent' of Bosnia and Herzegovina at the Court of Human Rights, represent? By claiming that Mr. Slaven Kovačević's right is not endangered, Ms. Mijić establishes a false premise, which is why every conclusion she draws is incorrect, anti-state, nationalistic, and much worse, which I will not list here. Moreover, Ms. Mijić claims that Kovačević is even privileged compared to some other citizens of Bosnia and Herzegovina, those living in an entity other than the one where these privileged individuals live. Ignoring the striking fact that by this very claim Ms. Mijić confirms that the right to be equal is endangered for a huge number of citizens of Bosnia and Herzegovina, she perhaps suggests that those disenfranchised are actually enjoying their disenfranchisement. By claiming so, Ms. Mijić implicitly believes that all of us living in the same entity as Kovačević are happy. Unfortunately, she does not express even a word of sympathy for those citizens who do not have the good fortune to vote and elect 66.66% of the sovereignty of the 'state' of Bosnia and Herzegovina, but must be satisfied with the right (which the current discriminatory Constitution gives them) that allows them to have 33.33% of the sovereignty. And she should! Because Ms. Mijić represents the interests of the 'state' of Bosnia and Herzegovina, which means the interests of Serbs living in the Federation of BiH, as well as Croats and Bosniaks, and all others, i.e., all citizens of the State. But she does not represent them! Mijić therefore does not represent the interests of all citizens of Bosnia and Herzegovina, although she wants to play the role of an agent of the State of Bosnia and Herzegovina. And the State of Bosnia and Herzegovina, which is One (!), is democratic only if all its citizens are 100% sovereign, i.e., if all have the right to elect all members of the Presidency, thus transferring their popular sovereignty to the State as the holder of the People's sovereignty.

Who, then, does she represent? Clearly not the State of Bosnia and Herzegovina. She confirmed this in a very impolite manner by mocking the presence of a member of the Presidency of the state of Bosnia and Herzegovina, and therefore the holder of the sovereignty of Bosnia and Herzegovina. Ms. Mijić therefore does not represent the state of Bosnia and Herzegovina, but on the contrary, works against it. Hence this distinction between the State and the 'state' of Bosnia and Herzegovina throughout this text.

Ms. Mijić does not represent the state of Bosnia and Herzegovina as sovereign because she does not represent the sovereignty of the people (singular). The state is sovereign only if it is the holder of the sovereignty of the People (demos) transferred to it. Perhaps Ms. Mijić, as an agent of the 'state', dislikes the concept of popular sovereignty because we learned it from the Protestant Althusius. If so, she can just say so, and I will find similar ideas in a number of Jesuit thinkers. It will be my pleasure.

My search for the 'state' in whose name and in whose interest Ms. Mijić speaks is not over. It would not be good to omit the nobility of the struggle for the 'general' interest, if it exists. Perhaps her insistence on constitutionality at least stands in the interest of one of the constituent ethnic groups in Bosnia and Herzegovina.

However, Ms. Mijić does not represent the interest of the Croatian people either. Her ironic attitude towards the member of the Presidency from the Croatian people clearly shows this. In doing so, Ms. Mijić labels a member of the Presidency – who is precisely the holder of the sovereignty of the state she allegedly represents – as illegitimate. By delegitimizing Mr. Željko Komšić, Ms. Mijić is merely adopting the vocabulary of a political party. Also from the Croatian people, not a representative of the Croatian people. No political party can say: The state is me! Otherwise, it would be a totalitarian nation...xxxx… Her act is not only delegitimization, but also illegalization of herself as an agent of the state of Bosnia and Herzegovina.

If the Court nevertheless abandons its original position, not only the state of Bosnia and Herzegovina will face a salto mortale, but the rule of law as a fundamental value of modern civilization, then the EU, and subsequently a number of European states.