Serwer: 'Kovačević' ruling requires rewriting the Dayton Constitution that ended the war in Bosnia

(Patria) - American professor and Balkans expert Daniel Serwer published a new text on his blog titled "Group rights encourage tyranny".

Serwer writes that his inbox is full. Among other things, he received two long letters whose main message is that the European Court of Human Rights should confirm its recent decision in the case "Kovačević v. Bosnia and Herzegovina".

One letter was mostly written by the Bosnian diaspora living in the US and Europe, Serwer explains, as reported by Patria. The other came from the Council for the Democratization of Policy (DPC).

The authors argue their positions well, Serwer says, and notes that those who care about the fate of Bosnia and Herzegovina should pay close attention to them.

Below, Patria brings you a free translation of the article that the esteemed professor Daniel Serwer published today on his blog Peacefare.net.

What is this about?

I will take a less legalistic perspective and try to avoid mentioning details. The basic question is the one Timothy Snyder poses - "who belongs to the state"? But in the 21st century, I think it is better to ask "to whom does the state belong?"

The US Constitution is clear on this matter - it belongs to "we, the people". This simple formula has many consequences. American history has seen individual rights, originally reserved for wealthy whites, relentlessly extended to all American citizens.

The US Constitution recognizes group rights only for Native Americans. Unfortunately, the US government has more often honored those who violated it than those who respected it.

In the Balkans, most constitutions can be summed up in an equally simple formula: "we, the peoples". The Constitution of Bosnia and Herzegovina specifically lists Bosniaks, Croats and Serbs. It grants these groups rights and powers in addition to those assigned to individuals and other groups. To gain power under this constitution, you must identify with one of the "constituent peoples".

This almost guarantees the irremovability from power of political parties associated with ethnic groups. Non-ethnic parties are at a disadvantage. In its still non-final decision, the ECHR ruled that this ethnonationalist constitution discriminates against people who do not identify with any of the ethnic groups. This makes it inadmissible in a member state of the Council of Europe. The European Convention on Human Rights applies directly in Bosnia and Herzegovina.

What is the difference?

It makes a big difference. Without empowering ethnic groups, citizens of Bosnia and Herzegovina would have many more ways to organize themselves and their politics. Ethnonationalist leaders would no longer have a monopoly on power. More conventional left and right-wing parties could gain more weight.

That is why ethnonationalists, their compatriots in Zagreb and Belgrade, and their apologists around the world oppose the proposed decision of the European Court of Human Rights. If implemented, it would disempower them all. That is why they resist. The ethnonationalists have still not implemented the 2009 European Court of Human Rights decision, which allows citizens who do not identify with the three main ethnic groups to be elected to the Presidency.

The "Kovačević" decision is more comprehensive. It essentially requires rewriting the Dayton Constitution that ended the war in Bosnia in 1992/95. Instead of group rights, individual rights would prevail. The geographical structure of the country, based on the warring parties, would have to change. The Croat-Bosniak Federation and the Republika Srpska could be dissolved in favor of strengthening municipal governance.

This would eliminate many unnecessary costs at the middle levels of government. Many municipalities would be dominated by one or another ethnic group. But all municipalities would have to respect minority rights. At the "state" level, politicians would have the opportunity to organize across ethnic lines. Appealing to one's own ethnic group would of course still be allowed. But access to power would no longer depend on ethnic identity.

Bosnians need to decide

How to revise their constitution is a matter for the citizens of Bosnia. But I do not want anything less for them than I want for myself. I would not trade my individual rights in the US for any form of group rights. Because I can rely on the courts to enforce my personal rights. I want nothing less for Bosnians: the rule of law that guarantees the exercise of individual rights. Power should derive from the choices of individuals, organized as they wish. Forcing people into an ethnic mold is not freedom. Group rights encourage tyranny.