Ethnic Segregation as a Desirable Constitutional Position?
Author: Edin Šarcevic
Uploaded: Tuesday, 09 December, 2008
In an interview with the independent Sarajevo weekly Dani, an eminent Leipzig law professor and B-H academician contests the ethnic terms in which matters of constitutional law are discussed in Bosnia today, and the legal status of the Dayton accords themselves.
Dani: Has the ethnicisation of Bosnia-Herzegovina’s constitution reached a point of no return?
Šarčević: I cannot say that for sure. But I am certain that the phenomenon we call the ethnicisation of constitutional law, and of the whole science of public law, prevents a rational dialogue about the path for constitutional reform in Bosnia-Herzegovina. Nationalist-minded political parties; the use of entity bodies to achieve expansionist aims and to cover up and legalise legally dubious business ventures; political demagogy at the level of state institutions that aims to prevent any progress towards the emergence of a functional state and institutions; blockade of the parliamentary system; the parallelism of ethnically based etatist goals - all this amounts to a dynamic in the direction of chaos. I speak here only about the entities; the diagnosis is even worse if we include also the cantons.
The creation of a chaotic situation provides a good opportunity for testing the theory about true constitutional subjects - that sovereignty belongs to those who are strong enough to implement their decisions. This is why I advocate a deliberate suspension of the domestic political actors as the subjects of constitutional power, and their replacement by the ‘foreign factor’. Over the past thirteen years, this factor has been the true bearer of internal sovereignty, and is responsible for the minimal reforms that have enabled the state to function. For this reason, one must use this factor in order to impose a new, functional and equitable legal situation, based on irrefutable constitutional standards. Otherwise sovereignty will have to be established through conflict. Local forces can appear here only in the form of a constitutional covenant that will concretize a constitutional framework decided in advance. Similar to the way in which the constitution of the Federal Republic of Germany was brought in after the Second World War. The idea that the ‘foreign factor’ should establish a framework that would lead to a way out from Bosnia’s current constitutional impasse cannot be challenged. It is a matter of necessity, justifying a recourse to well-tried methods that promise a solid success. Radical situations demand radical solutions.
Does this mean that the situation in Bosnia-Herzegovina was and is primarily an international responsibility?
Responsibility for the situation in Bosnia-Herzegovina lies - in proportion to their own strengths - with all participants in the Bosnian and Yugoslav tragedy. If one were to derive it from principle, then the principle should be: the responsibility is greater, the stronger the actor and the available force that he brings to bear on concrete events. In this sense the overall responsibility of the so-called international community is greatest and most elementary. But I cannot speak of it without entering the indeterminate field of moralising. I do not dare, in fact, to speak abstractly about a phenomenon that cannot be reduced to a single component. But I can speak about legal responsibility. This is measured in terms of violation of legal rules in a given situation, and with respect to the fulfilment of obligations that derive from international law.
Legal standards are in themselves very clear, and are blind to local cultures. Those who wish to apply them properly have to free themselves from local legal culture, customs, animosities and sympathies. Legal principles - such as, for example, the legal state, federal state, procedural democracy, the right to self-determination including secession, respect for law, etc. - are so very precise and differentiated that their professional application simply does not allow identification with local parties or political positions. The given aim here is not objectivity - it appears as a natural aspect of operating with legal standards.
Could one say, nevertheless, that the constitutional transformation of an area is more a question of political will than of constitutional science, which in Bosnia’s case has led to successive postponements of necessary constitutional changes?
This is only partly true where Bosnia is concerned. Bosnia, after all, is not a typical case - it is an exception that cannot be subject to generalised rules. Normally, the constitutional concept is in practice harmonised with concrete social needs, but there is always a minimal standard that cannot be voided by politicians, by a political option or a constitution-maker. Some constitutions, such as for example the German one, declare it to be eternal. This is the standard of a citizens’ state that is closely linked to protection of individual rights and which positions the abstract man as the inviolable quantity within the political system. We call this minimum the state-legal assumption, or the foundation of citizen-based legal statehood. It is impossible without it to realise either the idea of procedural democracy or the effective protection of human rights. The rest is a superstructure that constitution-makers can change in accordance with their own political ideas.
What is characteristic of the Bosnian case is that it has suspended this basic premise, and by placing ‘constituent nations’ at the foundations of the state community has established a contradictory system that cannot function without generating conflict. This is visible not only in parliamentary practice, but also in political acts which, based on the same constitution, lead to contradictory conclusions. (I have written about this in my book Ustav i politika [Constitution and Politics], which came out immediately after the Dayton accords, as well as in more recent papers.) The existing system has practically abolished the theory of constitutional law, and has replaced the science of state law with an ideology of constitutional law. This process is continuing, with far-reaching consequences, as a by-product of Annex 4 [of the Dayton constitution]. As a result professors of constitutional law - i.e. lawyers who claim to be experts on constitutional law - have by and large become a specific hybrid of lawyers and politicians.
If you look at the products of public-law science which, for example, appear in the smaller entity [RS] in the guise of textbooks for constitutional law, you can see a heavy layer of ideology, which represents a special type of ethnicised constitutional law combined with practically negligible texts of dogmatic quality. Characteristic of this approach is the falsification of state-legal facts, and a proliferation of apodictic positions on what law should look like in order to be acceptable to an ethnic group, rather than on what law is and what a given constitutional decision looks like in the light of the standard interpretation of law. Generations of lawyers have been educated on these premises.
Similar tendencies exist also in the bigger entity [the Federation]. Although they are tempered there by the specific position of the capital city, and also by the fact that in this pluralistic entity constitutional law is conceived more objectively, more neutrally in ethnic terms, there is nevertheless a growing together of expert services and practical political needs. It remains noticeable that the experts who acted as advisors during the establishment of the Dayton system, or who were engaged immediately after its establishment (winning in exchange sinecures in public institutions), are becoming its critics in response to political need. What is specific of contemporary Bosnia is a destruction of legal science, to be replaced with political arbitrariness.
Following the failed attempts to reform Annex 4, I do not see any concrete proposals in circulation that can be described as coherent. We see only a sharpened political debate that represents extreme wishes and political blackmail rather than serious propositions. What I see is a kind of circus of nationalists, who are at least one hundred and fifty years out of date. The Serb demands, identified with RS, are reducible to a simple proposition: constitutional reform yes, but without reform of RS. There is even a demand for a written prior obligation to recognise RS as a permanent category before negotiations on constitutional arrangements can even begin. This has nothing to do with science, but represents in my view an attack on science, if not on common sense. There is also a Croat tendency very strongly reminiscent of a revitalisation of the ‘Croatian Community of Herzeg-Bosna’, which points towards a third - Croat - entity as one element in a tripartite state. There is also an unspecified inclination towards a citizen-based concept coming from the ‘Bosniak political bloc’, but I am not sure that this forms a clear political paradigm. Finally, there is the sole concrete draft: the citizen-based concept - which from a legal point of view is supported by a technically correct and highly permeable protection of collective rights (or interests associated with a territorial model of regions) - offered by the SDP. This draft taken as a whole is in harmony with the standard of the legal state, and represents - in the sense of state continuity - a model that I myself could defend, albeit with some corrections in regard to the nature and distribution of competencies, and regional demarcation.
The other demands belong to the category of failed projects, in which I would include the Dayton Annex 4. In this multi-ethnic and multi-confessional state - which for this very reason has to have an ethnically neutral or what might be called an ethnically ‘secularised’ sphere belonging only to citizens - they advocate all over again exclusive ethnic territories on which ethnic communities would exercise state functions through para-state mechanisms. It is obvious that segregation on an ethnic basis is introduced as a desirable constitutional condition, together with the role of a fifth column facilitating realisation of the interests of neighbouring states on Bosnian territory. It is a case of an inverted logic that uses constitutional mechanism to protect collective rights at the expense of individual rights and other ethnic groups. This path, alien to the democratic, legal-constitutional and legitimating standards of public law, is unacceptable to the modern state.
Did the Dayton agreement include, in the event that it proved ineffective, an obligation on the part of the Security Council to intervene with a new constitutional agreement?
We cannot speak in general of an obligation of international bodies to intervene constitutionally in the national system of a given country. This is not the role of either the UN or international law. Adoption of a constitution is, in fact, an eminently national act. A constitutional state is a condition not a consequence of the international system. Bosnia-Herzegovina in this sense forms a precedent. But the responsibility of the international community can be shown by way of negative selection.
One should recall that Annex 4 was adopted de facto as an agreement between three political parties that proclaimed themselves - and were accepted as - exclusive representatives of three ethnic communities. Such a decision was not self-evident, and diverged from accepted ideas. Annex 4 was formally adopted as a constitution by representatives of the Federation, the Republic of Bosnia-Herzegovina and RS - which at the time was de facto a purely all-Serb regime. Let us look, however, at the mandate of those who represented the Republic of Bosnia-Herzegovina, Izetbegović and Š aćirbey; or the mandate of those who negotiated and assumed obligations in the name of the Federation, Zubak and Prlić, Herzeg-Bosna officials who as the negotiating team of the Croat part of the Bosnia-Herzegovina delegation acted in coordination with the Croatian state delegation; or finally the mandate of Koljević and Milošević. If one compares these mandates with how the signatories understood their own positions, and how the latter were viewed by the negotiators and in the relevant literature, we must come to the conclusion that the constitution embedded in Annex 4 was signed by the representatives of three ethnic communities.
The responsibility of the international community’s representatives is that they staged and permitted such recognition by ‘constituent peoples’ as sovereign subjects. One should not overlook here the all-important contribution of what happened on the ground, in Bosnia itself. Today, however, in regard to their starting positions, the negotiating parties cannot play the same role as previously during the war; but the international community remains. Its legal responsibility can thus be established only in regard to the Framework Agreement and its annexes: the question is whether the Dayton Agreement as a whole or in its parts has met the basic aim of the UN to safeguard peace. The international community fulfils this obligation through PIC and the OHR administration. I cannot see how in the situation one can raise the issue of legal responsibility or establish a legal obligation on the part of the Security Council. Finally, I do not see the existence of a legal responsibility on the part of UN bodies to control the effects, or in some other way modulate directly Bosnia-Herzegovina’s total legal system and statehood. That is basically a domestic responsibility. One could speak of a moral obligation, but that type of obligation has no value in international law. One must not forget that international law rests on the concept of the state as the effective centre of power, and moral arguments are not relevant here.
So what justifies the introduction of a constitution through international negotiations?
We do have a kind of legal intervention here, which through the adoption of a constitution and the accompanying legal acts shapes the internal order. The real question is whether this intervention is justified. An international intervention of this sort, in the sense of making a constitution, can be justified only by necessity - today just as in 1995. I wish to draw your attention to the fact that it was highly unusual, if not illegal, that the president of the Republic of Bosnia-Herzegovina, acting in opposition to the valid constitution - since the territory of the Republic at the moment of the signing [of Dayton] was one and indivisible, and its borders could be altered only by will of two thirds of its citizens - suspended the constitutional order according to which he had been elected and replaced it with a new one, surrendering the act of constitution-making to self-proclaimed representatives of ‘constituent peoples’. If we are to treat Izetbegović and his foreign minister, at the moment of the signing of the Dayton agreement and Annex 4, as a party empowered to agree, then they lacked passive legitimacy to make the agreement, so that the agreement itself was not legally valid. They should thus be viewed as representatives of one ethnic group, which, acting together with other ethnic groups, participated in a revolutionary destruction of one constitutional model and its replacement by another. This explanation corresponds fully to the practical policies conducted by the ‘national parties’.
To go back to the original question: it is precisely against this background that the whole arrangement appears as a way out of a state of necessity. A state which de facto faces a collapse, and whose people face extermination, accepts with the Dayton accords the instruments of international law in order to save itself from ethnic cleansing, killing and, one can say today without hesitation, genocide. This is the only way we can explain a situation in which a sovereign state, acting in opposition to its valid constitution, suspends its whole demos, its own institutions and its own sovereign powers, and surrenders the regulation of constitutional matters to three political parties, international diplomacy and neighbouring states.
A similar condition of necessity, in which the whole state still finds itself a decade or so later, today justifies the imposition of a functional model. It is evident that a constitution cannot emerge from the existing domestic status quo. I do not think it is a matter of laundering international sins, because the domestic ones too remain unlaundered. I would say that the need for international engagement, albeit not as a legal obligation, derives from the state of necessity in which Bosnia-Herzegovina finds itself today (though not of the same nature, of course, as in 1995), as well as from those features of the Dayton model that are contradictory, dysfunctional, inoperative, and in the last instance unethical.
Milorad Dodik and the RS parliament have contested the powers of the OHR and the legality of PIC.
I do not think that there are valid arguments against the powers of the OHR and PIC. The problem of their legality could be debated, but that is quite another issue, an issue that is more than complicated. The messages coming from RS as a rule show the extent to which they identify Serbdom with this entity. I refer not only to the messages coming from the current prime minister Dodik, but also to the series of declarations adopted by the entity parliament, the allegedly expert opinions of local lawyers, the political rituals associated with religious holidays, entity symbols and military celebrations, the evocation of the entity’s history and its use in schools and the public domain, etc. This is all part of the effort to present the RS as the exclusive property of the ethnic Serbs. They violate the decisions of the Bosnia-Herzegovina constitutional court, especially those referring to constituent peoples, and in addition establish logical and real ties between the existing RS, which is an entity of Bosnia- Herzegovina, and the Serb republic that arose under this same name as a product of ethnic cleansing, war crimes, genocide and Great-Serb manipulation of domestic forces. This fusion of the pre-Dayton regime and the post-Dayton entity is an attack on common sense, something that denigrates the capacity of reason and memory.
I say this only in order to stress the importance of removal of both entities in their existing form. This should begin with an ethnic neutralisation, a kind of ethnic secularisation of the very name of the smaller entity [RS]. For names here are by no means innocuous, and the best response to complaints about the legality [of OHR and PIC] is to begin the process of re-naming that entity. This might help the entity’s politicians to recall the historical facts and their constitutional obligations, and help free the Serb people from the burden of collective responsibility (not guilt!) under which it evidently labours.
There is talk in RS of a referendum on independence. What about the validity of the demand for self-determination and secession?
The right to self-determination includes the right to form one’s own state. The bearer of this right is every people that exists as a community characterised by a sense of its own individuality, as well as objective elements such as language, purported collective descent, religion, etc. There is no doubt that the Serbs form such a community, and that they may appear as the bearers of the right to self-determination in both its defensive and offensive forms. But, I wish to stress, only the Serbs as a people, not Republika Srpska as a constitutional entity. It is necessary, after all, to meet certain conditions. Such a people must inhabit, as an autochthonous population, a compact territory on which they are a dominant majority. The other assumption is that the people is actually suffering from discrimination as an ethnic group. The nature of this discrimination must be so severe that no other form of protection is possible other than establishment of their own state. These criteria are elementary assumptions and represent the material content of the right to self-determination as guaranteed in the first article of both the Pacts on Human Rights from 1966-7.
It is necessary to stress that the right to self-determination is built into Bosnian constitutional law, since the above-mentioned pacts were adopted with an additional agreement on human rights that would apply to Bosnia as a supra-constitutional right. This makes clear the difference between the Bosnian peoples and, for example, the Albanian people in Kosovo; or between ethnic communities, national minorities and state peoples such as the constituent peoples in Bosnia-Herzegovina. I myself will be the first to fight for the Serb people’s right to self-determination, as soon as an objective evaluation establishes that these criteria have been met. As things are, I can say only that there is no rational argument for such being the case.
What is the legal validity and practicability of the resolutions passed in the assembly of the Council of Europe and in the EU parliament that deal with Bosnia-Herzegovina?
The resolutions adopted by the Council of Europe and the European parliament are not legally binding. They are a good pointer for states following the path of European integration. If we bear in mind, for example, that the Council of Europe is viewed as Europe’s conscience, then it must be clear that its resolutions contain objective judgements on the situation in Bosnia-Herzegovina. They represent, in addition, at both these levels, a good pointer for both domestic and European forces. This is why one should not underestimate their significance when making legally binding decisions.
Edin Š arčević, born in Sanski Most, Bosnia-Herzegovina, is professor at the Faculty of Law, University of Leipzig and a corresponding member of the Bosnia-Herzegovina Academy of Arts and Science. This article has been translated and edited on the basis of an interview he gave to the Sarajevo weekly Dani on 31 October 2008.