DPC on ECtHR’s Kovačević v. BiH ruling

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Thread posted August 30, 2023

1/ The ruling by @ECHR_CEDH in the Kovačević v. #BiH case is, to repurpose a quote by then-VP Biden, a “big fucking deal”: it challenges central elements of the Dayton structure and business model of #Bosnia and Herzegovina politics.

2/ It represents a leap in the development of ECtHR case law from Sejdić-Finci through Pilav, Šlaku, Zornić and Pudarić, but builds on them, also finding that Article 1 of Protocol 12 was violated in two instances.

3/ It found that the plaintiff Slaven Kovačević, advisor to member of the BiH Presidency Željko Komšić, suffered from discrimination in both the limitation placed on him as a voter not identifying with any of the 3 constituent people.

4/ The ruling holds (para 73, page 41) that “(the) combination of territorial and ethnic requirements (for voters) amounts to discriminatory treatment” in the right to participate in elections for both the House of Peoples of the BiH Parliamentary Assembly and the state Presidency.

5/ Most importantly, the judgement clearly prioritizes individual over group rights (para 74, page 41): “Even if a system of ethnic representation is maintained in some form, it should be secondary to political representation,…”

6/ “…should not discriminate against ‘Others and citizens of Bosnia and Herzegovina’ and should include ethnic representation from the territory of the entire state.”

7/ Furthermore, in the same para the Court parries the #BiH Govt’s “justification for the current system (that is, the need to maintain peace and to facilitate dialogue between ethnic groups),” with “peace and dialogue are best maintained by an effective political democracy.”

8/ In the Govt’s narrative, peace is at stake – reflecting the killer app of BiH’s #PeaceCartel: ethno-national command over coercive force, leveraging acquiescence of citizens and indulgence(s) from the peace implementing powers, who have the legal obligation to deter them from stoking conflict and division.

9/ The BiH Govt’s argumentation also exposes that the system revolves around what @DPC_global’s Valery Perry has called “constituent parties” as the implied primary building blocks, not citizens or even constituent peoples. 

10/ (from para #61, page 39): “…none of the ‘constituent peoples’ is in the factual position of an endangered minority which much preserve its existence. On the contrary, the ‘constituent peoples’ clearly enjoy a privileged position in the current political system.”

11/ This structured privilege has prevented the need for a consensual social contract – which Dayton clearly could never have been, as it was by necessity an interim measure arrived at solely by – and for – the warring parties, who used it to turn coercive military power into coercive peacetime control.

12/ The Court’s ruling further underscores what has long been evident to BiH’s citizens: this system works to preserve the interests of the war’s only winners – the political elites – against them.

13/ The Govt argument that maintaining the current system to “facilitate dialogue” among them is comical. Political leaders engage in dialogue all too strategically, including through shifting alliances, as they share a common interest in ensuring they remain unaccountable to law or citizens.

14/ The question is therefore how to fully use the Court’s ruling to develop a broadly popular social contract that BiH clearly lacks. DF is understandably taking a victory lap and employing the ruling in service of its own well-established agenda.

15/ Komšić, like all representatives of parties not defining themselves as monoethnic, have had 17 years at the commanding heights to outline their vision of a civic state that could address concerns not of political counterparts, but ordinary citizens throughout BiH.

16/ Yet in this time he has neither expanded his base of support nor articulated an alternative and integrative social contract. But such a “social contract for the 21st Century,” as @arminkahelic proposed in 2021, is precisely what BiH needs to replace Dayton with a genuine popular democracy.

17/ A social contract among BiH citizens can have many geometries. But to date, to our knowledge, only one serious option has been developed which attempts to tip the balance in favor of individual rights and agency, giving it primacy, while still taking collective rights and concerns seriously.

18/ #Municipalization treats the individual citizens as BiH democracy’s elementary particle, the municipality as the basic democratic representative unit, ensuring the system would not revolve around ethnicity. https://municipalizacija.ba/

19/ Yet it also recognizes a need for both passive and active collective protections, accountable to citizens, not parties, by individually and directly selecting collective representatives for a strictly defined vital national interest-only part time body, not co-equal with the legislature.

20/ While developed over a decade ago, navigating (inter alia) from Venice Commission opinions, the model happens to be fully compliant with all ECtHR case law to date, through Kovačević, in its vision for legislative and executive power.

21/ It also envisions a system far more capable and likely to adopt the EU’s acquis than Dayton BiH has proven to be  – up through its undeserved candidacy last year.

22/ Bottom-up discussions on how this model of governance would work and benefit the people of BiH – finally – are needed; municipalization is a fleshed out idea that would ensure ECtHR compliance, and other social contract models would be welcome.

23/ The bottom line is this: yesterday’s ECtHR ruling further highlights what cripples BiH’s democratic and developmental potential – the dead hand of entrenched, extensive, self-reinforcing and increasingly Western approved oligarchic ethnocracy.

24/ The Court does not prescribe a defined solution, but it does define the ingredients which a social contract compliant with the case law would include. Individual rights must have priority over ethnic rights, but need not preclude collective protections per se.

25/ The ruling stands as an implied rebuke to Western so-called election law reform efforts, typified by @OHR_BiH’s two “electoral reform” impositions at US instigation, to further optimize the Dayton system for its already overprivileged beneficiaries, to the detriment of all its citizens.

26/ Such a fatalistic policy – based on taking at face value that constituent parties are popular ethnic tribunes despite almost 3 decades of evidence to the contrary – itself calls Western fealty to proclaimed democratic principle into question.

27/ The ruling cries for a Western policy review that will lead to a comprehensive, long-term BiH policy strategy.

28/ At its heart needs to be the question on how the West can contribute to a conducive environment for structural reforms with a new constitutional order/social contract at its core. But manifestation within BiH of a constituency for change is most likely to catalyze such an overdue shift.

29/ All the more reason for those the ECtHR judgement aims to empower – individual BiH citizens themselves – to envision a country governed in a fashion that works for them, strengthens their local communities…

30/ …and ensures collective failsafes without licensing a perpetual protection racket run by oligarchs and defining deviancy from internationally enshrined democratic and human rights norms down.

31/ It is easy to predict what the ethno-national elites will do next – the playbook has been used for 30 years. It remains to be seen whether support for development of a new social contract will finally materialize, with an emphasis on citizen-focused governance.