Update 6 September 2010 – see also this post.
Appropriately enough in light of our recent discussions of international constitutionalism, today the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of Sejdic and Finci v. Bosnia and Herzegovina (application nos. 27996/06 and 34836/06) (our previous coverage here; judgment here, but the HUDOC link might not be permanent). The case is by any definition a landmark for Strasbourg, not to mention Sarajevo.
The applicants were Bosnian nationals, who are respectively Roma and Jewish by their ethnicity. They complained that, despite possessing experience comparable to the highest elected officials, they are prevented by the Constitution of Bosnia and Herzegovina from being candidates for the Presidency and the House of Peoples of the Parliamentary Assembly solely on the ground of their ethnic origins, since these position are reserved for members of the so-called ‘constituent’ peoples, i.e. Bosniaks, Serbs, and Croats, as part of the Dayton peace settlement. The Court agreed with the applicants, by 14 votes to 3, that their ineligibility to stand for these positions constituted unjustified discrimination.
The Court started its analysis by emphasizing the odious nature of racial or ethnic
discrimination, which it would subject to strictest possible scrutiny (para. 44). It then considered whether the preservation of peace in Bosnia could be a legitimate aim for differential treatment (para. 45):
Turning to the present case, the Court observes that in order to be eligible to stand for election to the House of Peoples of Bosnia and Herzegovina, one has to declare affiliation with a “constituent people”. The applicants, who describe themselves to be of Roma and Jewish origin respectively and who do not wish to declare affiliation with a “constituent people”, are, as a result, excluded (see paragraph 11 above). The Court notes that this exclusion rule pursued at least one aim which is broadly compatible with the general objectives of the Convention, as reflected in the Preamble to the Convention, namely the restoration of peace. When the impugned constitutional provisions were put in place a very fragile cease-fire was in effect on the ground. The provisions were designed to end a brutal conflict marked by genocide and “ethnic cleansing”. The nature of the conflict was such that the approval of the “constituent peoples” (namely, the Bosniacs, Croats and Serbs) was necessary to ensure peace. This could explain, without necessarily justifying, the absence of representatives of the other communities (such as local Roma and Jewish communities) at the peace negotiations and the participants’ preoccupation with effective equality between the “constituent peoples” in the post-conflict society.
The Court, however, refused to decide whether the preservation of peace in Bosnia could still be legitimate aim, because proportionality was nonetheless lacking (paras. 46-50):
It is nevertheless the case that the Court is only competent ratione temporis to examine the period after the ratification of the Convention and Protocol No. 1 thereto by Bosnia and Herzegovina. The Court does not need to decide whether the upholding of the contested constitutional provisions after ratification of the Convention could be said to serve a “legitimate aim” since for the reasons set out below the maintenance of the system in any event does not satisfy the requirement of proportionality.
To begin with, the Court observes significant positive developments in Bosnia and Herzegovina since the Dayton Peace Agreement. It is true that progress might not always have been consistent and challenges remain (see, for example, the latest progress report on Bosnia and Herzegovina as a potential candidate for EU membership prepared by the European Commission and published on 14 October 2009, SEC/2009/1338). It is nevertheless the case that in 2005 the former parties to the conflict surrendered their control over the armed forces and transformed them into a small, professional force; in 2006 Bosnia and Herzegovina joined NATO’s Partnership for Peace; in 2008 it signed and ratified a Stabilisation and Association Agreement with the European Union; in March 2009 it successfully amended the State Constitution for the first time; and it has recently been elected a member of the United Nations Security Council for a two-year term beginning on 1 January 2010. Furthermore, whereas the maintenance of an international administration as an enforcement measure under Chapter VII of the United Nations Charter implies that the situation in the region still constitutes a “threat to international peace and security”, it appears that preparations for the closure of that administration are under way (see a report by Mr Javier Solana, EU High Representative for the Community and Common Foreign and Security Policy, and Mr Olli Rehn, EU Commissioner for Enlargement, on EU’s Policy in Bosnia and Herzegovina: The Way Ahead of 10 November 2008, and a report by the International Crisis Group on Bosnia’s Incomplete Transition: Between Dayton and Europe of 9 March 2009).
In addition, while the Court agrees with the Government that there is no requirement under the Convention to abandon totally the power-sharing mechanisms peculiar to Bosnia and Herzegovina and that the time may still not be ripe for a political system which would be a simple reflection of majority rule, the Opinions of the Venice Commission (see paragraph 22 above) clearly demonstrate that there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities. In this connection, it is recalled that the possibility of alternative means achieving the same end is an important factor in this sphere (see Glor v. Switzerland, no. 13444/04, § 94, 30 April 2009).
Lastly, by becoming a member of the Council of Europe in 2002 and by ratifying the Convention and the Protocols thereto without reservations, the respondent State has voluntarily agreed to meet the relevant standards. It has specifically undertaken to “review within one year, with the assistance of the European Commission for Democracy through Law (Venice Commission), the electoral legislation in the light of Council of Europe standards, and to revise it where necessary” (see paragraph 21 above). Likewise, by ratifying a Stabilization and Association Agreement with the European Union in 2008, the respondent State committed itself to “amend[ing] electoral legislation regarding members of the Bosnia and Herzegovina Presidency and House of Peoples delegates to ensure full compliance with the European Convention on Human Rights and the Council of Europe post-accession commitments” within one to two years (see paragraph 25 above).
Thus, the Court concludes that the applicants’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina lacks an objective and reasonable justification and has therefore breached Article 14 taken in conjunction with Article 3 of Protocol No. 1.
The Court then proceeded to make the same finding in respect of the lack of eligibility for the state presidency, this time, however, relying on Article 1 of Protocol 12 to the ECHR, containing a general, far-reaching prohibition of discrimination (paras. 55-56). This is the first time that the Court has found a violation of Protocol 12 on the merits, but it will not be the last.
From the Strasbourg perspective, the result could hardly have been different. Ethnic discrimination is repugnant to any form of liberalism, and the Court would simply not set any precedent that could justify such inequality in some vaguely defined exceptional circumstances. Viewed from Sarajevo, however, the clarity of the law does not sit very comfortably with the messy facts on the ground. Bosnia is still an ethnically divided, barely functioning state, that is hard to recognize from the Court’s accounting of various ‘positive developments.’
What now remains to be seen is whether the Court’s judgment will make an actual difference. I personally find it hard to believe that it will. A change in the Bosnian constitution (which does not require a revision of Dayton Peace Agreement itself, as wrongly suggested by Judge Bonello in his dissent) depends solely on political agreement among the major players in Bosnia, each caring only about his little fiefdom. Such agreement on constitutional change has been lacking for a long time, and it does not seem likely to emerge in the near future. Whatever Strasbourg might say, even much more effective incentives for change, such as those from the EU accession process, have so far failed to reconcile the various parties. Bosnia in many ways still remains profoundly illiberal, and skepticism should be the default option when it comes to assessing the will and the ability of the current crop of its political leaders into making it a better place for everybody concerned.