Bosnia and Herzegovina: Political Discrimination Back in Spotlight

Four months before general elections in Bosnia and Herzegovina, minorities are still denied the right to run for election, despite a 2009 European court ruling. Human rights organizations have now made submissions in a new case before the court to seek urgent constitutional reform and to press for equal political participation for minorities.

A 2009 European Court of Human Rights (ECtHR) judgment made it clear that Bosnia's constitution is discriminatory in preventing national minorities such as Jews and Roma from running for the presidency or the upper house of the Parliament. Although the judgment had required urgent constitutional reform, BiH has so far been reluctant to make the changes.

To challenge the discriminatory Constitution, Minority Rights Group International, Human Rights Watch, and the Holocaust, Genocide and Human Rights Program at the Benjamin N. Cardozo School of Law - along with counsel Chadbourne & Parke LLP International Arbitration and Public International Law practice group - filed an amicus brief on 18 February 2014 before the ECtHR. The brief supports the case of Ilijaz Pilav, a Bosniak residing in the Republika Srpska who is prevented from running for high office.

Due to the Constitutional structures resulting from the Dayton Peace Agreement, a person may only run for a seat in the tripartite presidency by aligning him or herselfwith the dominant ethnic group (Bosniaks, Bosnian Croats or Bosnian Serbs) in the part of Bosnia and Herzegovina in which they live. That requirement restricts an individual's ability both to run for high office and to vote for the candidate of their choice. Ilijaz Pilav is a Bosniak doctor who survived the Srebrenica massacre during the 1993-95 Bosnian war and provided medical treatment to a number of victims of the conflict.

The government should urgently make the necessary constitutional changes to end discrimination against minorities in their right of political participation, the human rights groups said. The right to vote and stand for election - on the basis of universal and equal suffrage - is a basic principle of democratic governance and an important human right enshrined in a number of key international legal instruments. The principle of equality and non-discrimination is also a fundamental element of human rights law and a core principle of a pluralistic, democratic society.

The amicus brief filed with the ECtHR provides the court with relevant comparative and international law materials to aid the court in evaluating whether there has been a violation of the right to equal treatment and non-discrimination in the right to stand for election and the right to vote when these rights are restricted on the grounds of ethnicity.

The case of Pilav vs Bosnia and Herzegovina is believed to be only the second case in the history of ECtHR jurisprudence to challenge the constitutional structure of a member state. It raises several critical issues in relation to permissible restrictions of rights protected under the European Convention on Human Rights. One of the key legal issues concerns the degree to which the right to run for the presidency, and consequently to be freely elected, can be limited and restricted without constituting discrimination on the grounds of ethnicity.