EU needs to help end bias in Bosnia and Herzegovina

It has been almost 15 years since the European Court for Human Rights (ECtHR) found in the Sejdic-Finci case blatant racial and ethnic discrimination in Bosnia and Herzegovina’s constitution. And yet nothing has changed.

In the landmark case brought by a Bosnian Roma, Dervo Sejdić, and a Bosnian Jew, Jakob Finci, the ECtHR ruled on 22 December 2009 that the Bosnian constitution — drafted by European states and the United States at the end of the war in 1995 — directly discriminates against minorities by not allowing them to become candidates for the presidency.

The role is reserved exclusively for members of the three main ethnic groups: Bosniaks, Bosnian-Croats, and Bosnian-Serbs. The country’s 17 “national minority groups,” including Jews and Roma-are legally second-class citizens, referred to in the constitution as “Others.”

An estimated 400,000 Bosnians, 12 percent of the population, cannot run for presidency or parliament because of their religion, ethnicity, or where they live. 

For Sejdic and Finci, 22 December is a bittersweet date that both symbolises a victory against discrimination and a reminder that the decision still has not been carried out. Nor have five subsequent ECtHR cases against Bosnia that have established similar discrimination. 

As the actor with the greatest political influence, and including states that drafted the discriminatory constitution, the EU has a crucial role to play in addressing this issue. For several years, the EU had required carrying out these decisions as one of the main conditions in the EU accession process, 

In 2022, Bosnia was granted EU candidate status and in 2024 it opened EU accession negotiations, two important milestones, despite continuing structural discrimination. There is a growing fear that the country may be allowed to join the EU with the discrimination enshrined in its constitution. 

The simple reason why the implementation of European Court decisions and constitutional reform lags behind in Bosnia and Herzegovina is that those who are in charge of making amendments – the major ethnic-based political parties – benefit from the current system and ongoing discrimination. 

In 2012 and 2019 research, Human Rights Watch documented the impact of this exclusion. 

Bosnia’s Roma communities, the poorest group in the country, face systemic discrimination, with no recourse because they are barred from executive power. Only about 35 percent of Roma children attend primary and secondary schools in the country and over 60 percent of Roma don’t have access to health care. Only 11 to 13 percent are formally employed.

When it comes to Jewish life and community in Bosnia, it’s mostly invisible to those in power. The estimate is that 10 percent – $3.3bn [€3.14bn] – of the property in the country seized by previous Nazi and communist regimes belonged to Bosnian Jews, almost none of which has been given back. Instead, in many cases, municipalities have taken ownership.

The canton Sarajevo’s Interior Ministry is located in the building of the Jewish humanitarian organization La Benevolencija, which has not been successful in regaining its ownership. There are many other examples, that have been reported, of blatant requisition of Jewish property under previous governments, which the current Bosnian government “harmonized” through untransparent and quick court procedures. Previous attempts to adopt a national property restitution law failed due to objections from the ruling ethnic political parties.

Decisive leadership and leveraging by the EU can help move the needle, including by requiring the active participation and representation of national minorities in any future planning and discussions around the implementation of the Sejdic-Finci group of decisions in Brussels, Strasbourg and Sarajevo. 

Experience and history have shown that when states are allowed to join the EU despite unresolved questions on fundamental rights, the issues remain unaddressed as political leverage is lost. The EU should not make that mistake in Bosnia and Herzegovina and allow the accession process to entrench what amounts to an ethnic caste system.

In engaging with Bosnia on accession-related reforms, the EU should be led by international human rights law, including the European Convention on Human Rights, which the EU aspires to join. Doing so means prioritising the implementation of binding rulings by the European Court of Human Rights.  

Describing 15 years of failed attempts to see his decision carried out, Dervo Sejdic, now 69,  said in a recent interview: “I am tired, very often frustrated, but the will for the final victory will never end. For as long as I am alive, it’s not going to stop.” The EU should honour Mr. Sejdic by using its influence to prioritize constitutional reform to end the discrimination he, Jakob Finci, and others have suffered.