Constricted rights and imagined identities: Peace and accountability processes and constitution-making in Bosnia and Herzegovina

Abstract

Abstract This article takes an interdisciplinary law-in-context approach to examine the nature of constitutionalism in Bosnia and Herzegovina. We argue that while the new constitution was necessary for implementing the postwar democratic transition and rebuilding processes, its fixed ethno-religious collective political identities achieved between 1992 and 1995 by forceful means have further reinforced ethno-territorial divisions in a multicultural society. As a consequence,the individual and state accountability for mass atrocities and genocide before the ad hoc International Criminal Tribunal for Former Yugoslavia and theInternational Court of Justice have become secondary to the postwar power-sharing arrangement, thus perpetuating inter-ethnic tensions. The dominant focus on a social order that reasserts citizenship and constitutional rights based on ethnic identities has created an enduring deadlock for the Bosnian transition. This article reimagines a citizen-based constitution generated by political participation for those in and outside of Bosnia and Herzegovina that safeguards the principles of non-discrimination and equal civil, political, socio-economic, and cultural rights, and encourages citizens’ education and democratic participation to shape the future of democracy.