Skip to main content

A Belated Victory

The Court Ruling in Bosnia: A Decision to Make Europe Sit Up and Take Notice

Published in: Haaretz

Late last year the European Court of Human Rights issued a landmark ruling that will make a huge difference in the lives of Jews and other minorities in Bosnia. The Strasbourg-based court issues hundreds of binding judgments each year. On December 22, its Grand (highest) Chamber ruled that the Bosnian political system, which excludes Jews, Roma and other minority groups from competing for the presidency or the upper house of parliament, is discriminatory.

I represented Jakob Finci, one of the two people who brought the case in 2006. He is a leading member of the small Jewish community of Bosnia, whose ancestors came to that part of Europe centuries ago after the expulsion from Spain in 1492. The Jews of Sarajevo subsequently survived various regimes, suffering systematic discrimination, or worse. Finci was born in 1943 in a transit camp for Jews on an island in the Adriatic Sea; his parents, from Sarajevo, had been deported there during the German and Italian occupation. Shortly after Jakob's birth, the family managed to escape to Allied-occupied southern Italy, and thus were spared the gas chamber.

Finci returned with his family to Bosnia after the war and trained as a lawyer. He has had a distinguished career in public life and is today the Bosnian ambassador to Switzerland. But until now, his ethnicity and religion have prevented him from seeking election to the highest offices of state. Like Finci's family, many members of Bosnia's Jewish community returned after the war, as did the Roma, who also suffered during the Holocaust. Initially, under communist rule in what was then Yugoslavia, Jews and Roma were guaranteed equal rights. During the 1990s, when the country's civil war pitted Serbs, Croats and Muslim Bosnians against each other, smaller communities like the Jews tried to maintain neutrality. Finci, in particular, took on the very dangerous work of crossing the front lines to bring relief to civilians. In 1995, with the help of the foreign powers, the war was brought to an end in the Dayton Process. International diplomats with expertise in dealing with ethnic conflicts designed a constitution that would ensure that such a war would never again take place.

The result? By dividing up political power among the three main groups that fought the war, the new constitution ended up relegating other communities, including the Jews and Roma, to second-class status, and explicitly prevented them from standing for the presidency or the upper house of parliament.

You might have thought such blatant discrimination would be quickly nipped in the bud, especially as the internationals were overseeing the governing of Bosnia, which has recently begun the process of being accepted for EU membership. But you would be wrong: After 14 years, the Jews and Roma are still classified as "others," and thus still excluded from those posts. Reform depends on Bosnian politicians who were elected under the existing system, and not surprisingly, seem to be in no hurry for change.

While the constitution explicitly prohibits discrimination, it excludes from full political participation not just the Jews and Roma, but those of mixed background, those who do not want to declare themselves members of any group, and even members of the majority communities who live in the "wrong" part of Bosnia. For example, a Muslim from Srebrenica who survived the genocide that took place there in 1995 cannot run for the presidency, as Srebrenica is now in the "Serb" part of Bosnia, where only members of that ethnic group are allowed to stand for that office.

Such rigid "power-sharing" was tried, with disastrous results, in Lebanon and Cyprus in the last century. But this time it was supposed to be different, with an international overseer, the High Representative, appointed to manage Bosnia's transition to democracy and the rule of law. The "international community" - the key Western European states, the United States, Canada, Japan and Turkey - have played a major role in Bosnia, and were supposed to guarantee human rights.

Nonetheless, serious attempts to change the constitution only began in 2005 and have so far not produced any change. The key international powers have discussed streamlining the political system and unifying the state, but they have not even tried to end the formal exclusion of Jews and other minorities.

Instead, it was the European Court that pointed out what should have been obvious in 1995: that formal exclusion of people from politics due to their religion or ethnicity has no place in today's Europe. The power of this court lies in the fact that states comply with its ruling. Bosnia defended its discriminatory electoral system before the court, but now accepts that it has to change its constitution and electoral rules before the next elections, in October 2010. But one hopes that those entrusted with making peace in other ethnic conflicts will learn the lessons, too: That when recreating societies after war, none of their parts should be excluded. Human rights should not be put on hold.

Meanwhile, 14 years after the end of the Bosnian war, Mr. Finci will finally be able to stand for the highest offices of his country.

Clive Baldwin represented Jakob Finci for Minority Rights Group International and is now a lawyer for Human Rights Watch.

Your tax deductible gift can help stop human rights violations and save lives around the world.