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DOSSIER ON THE RIGHTS AND PROTECTION OF ETHNIC MINORITIES IN BOSNIA & HERZEGOVINA, MACEDONIA, SERBIA, MONTENEGRO, AND CROATIA
BOSNIA & HERZEGOVINA
Bosnian Minority Syndrome
By: Branko Peric
Bosnia & Herzegovina (B&H) and its two entities (B&H Federation and Republika Srpska) do not have the concept of 'minority' in their Constitution. However B&H is probably the only country in the world in which each and every citizen feels like a member of a minority.
Bosnia's 'minority syndrome' has developed from its political, historical, and legal complexity. First and foremost, Bosnia & Herzegovina is demographically structured in such a way that three nations - the Bosniacs, the Serbs and the Croats - form most of the population, but each nation on its own is not the majority. According to the results of the latest population census, in 1991, B&H had the total of 4,377,033 inhabitants, out of which there were 1,902,956 (43.5%) Bosniacs, 1,336,106 (31.2%) Serbs, 760,852 (17.4%) Croats, 242,682 (5.5%) Yugoslavs, and 104,439 (2.4%) 'Others'. The category of Yugoslavs has disappeared together with the former state. The Serbs believe that the 'Yugoslavs' were mostly Serbs, and the Bosniacs think they were mostly Bosniacs. Only the Croats do not seem to be interested in this category of pre-war inhabitants.
Many believe that such a complicated ethnic structure of B&H has brought about the escalation of nationalism in the beginning of the nineties and that ethnocentrism culminated in 1992 in B&H in political splits and the war for ethnically cleansed territories with the generally known consequences.
The structure of B&H population appeared as a serious political problem in the constitutional and legal formation of the future state community at the time of drawing up of the Dayton peace accords. Creators of the Dayton Constitution of B&H were faced with a problem that was very difficult to solve: how to form political and legal mechanisms that would guarantee the equality of the nations and the implementation of the convention on human rights and freedoms. The solution was found in the adoption of the principle of non-discrimination and avoidance of going any deeper into resolving this problem. "Practicing of rights and freedoms prescribed in this article or in international agreements stated in Annex I of this Constitution is warranted to all the persons in B&H without discrimination on any grounds such as sex, race, colour, language, religion, political or other opinion, ethnic and social origin, connections with ethnic minority, property, birth or other status", it is stated in item 4 of Article 2 of B&H Constitution. If one bears in mind that B&H Constitution incorporates 15 international legal documents which protect human rights, and that among them are the 1992 European Charter on regional languages of minorities and the 1994 Framework Convention on the protection of ethnic minorities, one could say that B&H is a state where minorities enjoy protection according to the highest European standards.
However, the main political problem in B&H are not the minorities but the constitutive nations - the Bosniacs, the Serbs and the Croats, which lay stress on the struggle for the regulation of their political and constitutional and legal status on the whole territory of B&H.
Minority nations in B&H have quite a specific political and constitutional and legal treatment. In legal and political language they are not minority nations, but 'others'. Nobody has given a clear definition who the 'others' are, and how many of them there are. This term inherited from the former state is supposed to include all those who are neither the Bosniacs, nor the Serbs nor the Croats. However, even members of these three nations who are the offspring of mixed marriages and those who live in mixed marriages themselves, declare themselves as 'others'. Their number is also a mystery. It is estimated that there are about 20 per cent of them of the total population of B&H. Many believe that this social group is the most powerful factor of integration in B&H, but that it is impermissibly marginalized and almost threatened. Vehid Sehic, President of Tuzla Civil Forum, claims that human rights of the citizens living in mixed marriages and the ones who originate from mixed marriages are threatened. "They are not even in B&H Constitution because the Constitution recognizes only 'others'. 'Others' always have somebody of their own, somebody who backs them. People from mixed marriages have nobody. They do not have their embassies and there is nobody to protect them", says Sehic. Sehic warns that this social group constantly grows and that it has its indirect supporters (relatives).
The category of 'others' has lately acquired social significance and it is becoming attractive because the international community insists on full constitutiveness of the nations on the entire territory of B&H. Two B&H entities are not exclusive state and legal communities of a single nation, as prescribed by war and postwar Constitutions of the entities. The Gordian knot was cut by the Constitutional Court of B&H in 1998 and 2000 with a few of its decisions on constitutive nations in B&H. After that, on April 19, 2000, the High Representative for B&H, referring directly to specific decisions of the Constitutional Court, reached decisions that amended and supplemented the Constitution of B&H Federation and Republika Srpska with direct provisions on proportional representation of constitutive nations and 'others' in state agencies and public institutions in B&H. According to the new amendments of the High Representative in RS, "the Serbs, the Bosniacs and the Croats, the 'others' and the citizens, equally and without discrimination, participate in the execution of power in RS". An identical amendment but with a different sequence of constitutive nations, was imposed on the Constitution of B&H Federation. This principle was further elaborated through the provisions on the structure of representative bodies and the executive authorities. In B&H Federation at least four representatives of each constitutive nation shall be members of the House of Representatives, and in the House of Nations each constitutive nation will have seventeen delegates, and 'others' will have seven. In RS the Constitutional amendments introduce the institute of 'protection of national interests' according to which not a single law that refers to the question of vital national interests can come into force unless passed by the Council of Nations that has eight members from each people and four members form the ranks of 'others'. As an instrument of protection of vital national interests a special council was introduced in the Constitutional Court of RS with two judges from each constitutive nation and one from among 'others'.
After October parliamentary elections, this constitutive calculus turned out to be too idealistic. The elections for cantonal assemblies showed that among the councilmen in eleven cantonal assemblies it is impossible to gather more than nine Serbs, which according to strict legal logic could mean that according to the elections it is impossible to constitute one of the Parliament chambers. In the laws there is no solution for a way out of such a situation. Should it be accepted that nine Serbs form the majority that can reach decisions in this group of deputies, the parliament will be paralyzed the moment a single Serb is prevented to attend a meeting of the Council of Nations.
The other absurdity of constitutiveness appeared recently at High Judiciary and Prosecution Council of RS which among seventeen candidates could not find two Bosniacs and one Croat in order to meet the criteria for the election of judges of the Constitutional Court of RS. For almost a year this Court is unoperational because the term in office of the judges of the previous composition has expired.
Political elites in B&H constantly keep the problem of the constitutiveness of three dominant national groups in focus, making the problems of minority groups almost imperceptible. Indeed, in B&H there are no big minority groups, but they are numerous. Probably the biggest among them is the Roma community, but there are no Roma anywhere in the structure of the authorities. Other minority communities are organized as associations for cherishing the tradition and cultural values of their people. On this principle, in the past few years societies of Serb-Slovene, Ukrainian, Slovak, Macedonian... friendship were founded.
High Representative for B&H imposed the Constitutional amendments after long and futile negotiations of the politicians from the two entities during March 2002. That was the first time that High Representative encroached upon constitutional matters of entities and imposed constitutional solutions. For pessimists among analysts of political developments in B&H it was just another step towards full protectorate in B&H.
From the aspect of juris prudence, the legal and political status of minority groups in B&H is resolved pursuant the generally adopted European standards. The problem lies in the fact that B&H still is not capable of operating as a legal, politically stable and organized state. The very fact that the constitutional solutions on the equality of the 'Bosniacs, the Serbs, the Croats, others, and citizens of B&H' are imposed speaks of the political will in this country to abide by the principles of non-discrimination and equality.