Collective Equality: Human Rights and Democracy in Ethno-National Conflicts 131651482X, 9781316514825

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Collective Equality In recent decades international and regional human rights norms have been increasingly applied to constitutional provisions, revealing significant tensions between primary political arrangements, such as power-sharing institutions, and human rights norms. This book argues that these tensions, generally framed as a peace versus justice dilemma, are built on an individualistic conception of justice that fails to account for the empirical reality in places characterized by ethnically based political exclusion and inequalities. By introducing the concept of “Collective Equality” as a new theoretical basis for the law of peace, this timely book proposes a new approach for dealing with the tensions between peace-related arrangements and human rights norms. Through principled, pragmatic, and legal reasoning the book develops a new paradigm that captures more accurately what equality and human rights mean and require in the context of ethno-national conflicts, and provides potent guidance for advancing justice and peace in such places. Limor Yehuda is a lecturer at the faculty of law at the Hebrew University of Jerusalem and researcher at the Truman Research Institute for the Advancement of Peace and the Van-Leer Institute. Previously Yehuda clerked for President Aharon Barak at Israel’s Supreme Court and practiced human right law at the Association for Civil Rights in Israel (ACRI) where she directed the Department for Human Rights in the Occupied Territories.

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Collective Equality Human Rights and Democracy in Ethno-National Conflicts LIMOR YEHUDA The Hebrew University of Jerusalem

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Shaftesbury Road, Cambridge CB2 8EA, United Kingdom One Liberty Plaza, 20th Floor, New York, NY 10006, USA 477 Williamstown Road, Port Melbourne, VIC 3207, Australia 314–321, 3rd Floor, Plot 3, Splendor Forum, Jasola District Centre, New Delhi – 110025, India 103 Penang Road, #05–06/07, Visioncrest Commercial, Singapore 238467 Cambridge University Press is part of Cambridge University Press & Assessment, a department of the University of Cambridge. We share the University’s mission to contribute to society through the pursuit of education, learning and research at the highest international levels of excellence. www.cambridge.org Information on this title: www.cambridge.org/9781316514825 DOI: 10.1017/9781009090988 © Limor Yehuda 2023 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press & Assessment. First published 2023 A catalogue record for this publication is available from the British Library. A Cataloging-in-Publication data record for this book is available from the Library of Congress. ISBN 978-1-316-51482-5 Hardback Cambridge University Press & Assessment has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

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To my mother Nomy, and to BZ, Ella, and Alma, with love and gratitude

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Contents

page ix

List of Maps

Acknowledgments xi 1

Introduction 1 Part I. Human Rights and Democracy in Deeply Divided Places

2

The Politics of Ethno-national Conflicts 43

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The Limits of Partition 73

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Limitations of Human Rights 100 Part II. Revisiting Assumptions

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Rethinking Democracy 133

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Human Rights versus Power-Sharing 167 Part III. Collective Equality

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Collective Equality: Theoretical Foundations for the Law of Peace 187

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Collective Equality and Sustaining Peace 227

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Collective Equality and International Law 255

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Conclusion 289

Bibliography 299 Index 339 vii

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Maps

3.1 Ethnic composition of Bosnia and Herzegovina before (1991) and after the war (1998). 3.2 Map of the island of Ireland. White represents the Republic of Ireland, gray represents Northern Ireland. 3.3 Map of predominant national identity in the 2011 census in Northern Ireland. 3.4 Map of predominant ethnic identity in Cyprus. 3.5 Map of Cyprus showing the north–south divide. 3.6 Map of Jerusalem showing the Geneva Initiative proposal for separation in Jerusalem. 3.7 Demographic map of Israel/Palestine, 2021, with a focus on built-up areas of cities, villages, and small communities based on a map produced by Bolter21.

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page 88 90 91 92 93 96

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Acknowledgments

I have many people to thank for their help in shaping and sharpening the arguments and ideas that encompass this book. First and foremost, my gratitude goes to my academic mentors, Barak Medina and Yuval Shany, who guided me with sound advice and ample space for exploration. I had the privilege of receiving valuable support and advice from Anne Peters, Danny Attas, Michael Karayanni, Peter Benson, David Krezmer, Avner De-Shalit, Oren Yiftachel, Natalie Davidson, Zvi Bekerman, Başak Çalı, Oren Barak, Dahlia Scheindlin, Alon Harel, Yitzhak Benbaji, Martti Koskenniemi, and Christopher McCrudden, with whom I had the privilege of consulting along the way. The Hebrew University of Jerusalem, and particularly the Faculty of Law, the Minerva Center for Human Rights, and also The Harry S. Truman Research Institute for the Advancement of Peace, provided supportive institutional home bases. The Joint Interdisciplinary Doctoral Program “Human Rights under Pressure – Ethics, Law, and Politics” (HR-UP) provided me with critical financial and academic support to conduct my research. My deep thanks to the program’s directors, especially Tomer Broude, and to Danny Evron, executive director of Minerva. My dear HR-UP mates have been a source of valuable reflections, sound advice, and true friendship. Thank you Rawia Aburabia, Tamar Hofnung, Lina Saba-Habesch, Nir Barak, Shani BarTuvia, Bruck Teshome, and Schira Kaiser. My thanks also to the Minerva Center for Human Rights at the Buchmann Faculty of Law at the Tel-Aviv University, and to the Feinberg foundation for financial support. This research includes a comparative study of three conflicts that were very far from home for me, and I was greatly assisted by scholars with intimate knowledge of the history and complexities of the conflicts and agreements in Northern Ireland, Cyprus, and Bosnia. Special thanks to Fionnuala Ni Aolain and Rory O’Connell from the Transitional Justice Institute at Ulster xi

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xii

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University, Costas  M.  Constantinou from the University of Cyprus, Ahmet Sözen from Eastern Mediterranean University, and Midhat  Izmirlija and Meliha Povlakic from the Faculty of Law, University of Sarajevo, all of whom generously hosted me in their institutions and provided forums in which to present my ideas when they were only just beginning to crystallize. Additional thanks to Kieran McEvoy for helping me with local connections in Northern Ireland; to Dahlia Scheindlin for connections in Cyprus and to Maria Hadipavlou and Umut Bozkurt for their generous support and friendship during my visits to Cyprus; and to Maria Garvey for generously hosting me during my research in Belfast. I had the joy and privilege of numerous profound and inspiring conversations with many experts who opened my eyes with direct and intimate insights into local circumstances and perceptions, expanding my understanding and appreciation in ways that no book or article could have ever provided. Special thanks to Gerry Adams, Brandon Hamber, Brice Dickson, Colin Harvey, Anna Bryson, Naomi Long, Lee Reynolds, Norman McManus, Claire Hanna, Alex Schwartz, Pat Sheehan, Raymond Watson, Martin O’Brien, Daniel Holder, and Duncan Morrow in Belfast; Berna Numan, Canan Öztoprak, Kudret Özersay, Sevgül Uludağ, Kypros Chrysostomides, Esra Eygin, Olga Demitrio, Loizos Loukaidis, Ayla Gürel, Elizabeth Spehar, John McGarry, Steven Bourke, Nadia Cornioti, Andreas Theophanous, Yücel Vural, Okan Dağlı, Yiannis Papadakis, Mete Hatay, and Matthias Schuster in Cyprus; Nejra Cengic, Asim Mujkić, Damir Kapidzic, Goran Bubalo, Lejla Somun, Hajrudin Somun, Joseph Marko, Jacob Finci, Sabina Č ehajić-Clancy, and the late Zdravko Grebo in Sarajevo. I am enormously thankful to Ann Overton for stepping up to edit an early version of this manuscript, and to my editor, Kirsty Kay, for giving my ideas a much more tangible and graspable form. Deep thanks to Akadi Schneider for his help and advice on the book’s maps, to Sarai Beris who produced them, and to Yuliya Mik for her help in preparing the index. I am thankful from the bottom of my heart to my mother Nomy for everything, for her love and support, and for teaching me the essence and strength of a relentlessly positive approach to life. To my father Avidor, of blessed memory, for his example of unflagging integrity and social commitment. Lastly, my deepest gratitude goes to my dear beloved, best friend, and partner BZ, for his encouragement, love, and unconditional support, and to my loving and awe-inspiring daughters, Ella Sophia and Alma Yasmin. Thank you all for your support and trust.

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1 Introduction

1.1  THE BOOK’S ISSUES: RETHINKING ETHNONATIONAL (IN)JUSTICE AND PEACE

1.1.1  The Rise of Power-Sharing as a Tool of Peacemaking On November 21, 1995, in Dayton, Ohio, a dramatic peace agreement was signed between Yugoslavia, Croatia, and Bosnia and Herzegovina to end the horrific ethnic war that had been raging for the previous three-and-a-half years in Bosnia. Faced with the challenge of how to set up a state “on the basis of little more than the ruins and rivalries of a bitter war” (Bildt, 1998, 392, cited according to Bose, 2005, 324), the Dayton Peace Agreement devised a complex power-sharing framework. The overall aim of the power-sharing arrangements was to allow the sovereign power in Bosnia and Herzegovina to be shared among the three ethno-national groups that fought the war and comprise most of the citizenry. On April 10, 1998, in Belfast, the Good Friday Agreement (GFA) was signed to end the violent conflict that had persisted in Northern Ireland for 30 years. One of the central elements of this peace agreement is a complex power-sharing arrangement between the two major communities that constitute the Northern Ireland population. In recent years, attempts to resume negotiations between the two communities in long-divided Cyprus have been taking place. For decades, the prevailing paradigm for a Cyprus solution has been the bizonal, binational federation, another complex powersharing arrangement. Meanwhile, the halting of peace negotiations between the government of Israel and the Palestinian Liberation Organization and what today seems to be the collapse of the peace process based on the traditional two-state solution have sparked a renewed interest in alternative approaches to Israeli–Palestinian peace. Among the prominent visions being discussed and evaluated are federal and confederate models based on powersharing arrangements between the two ethno-national groups. 1

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These are a few examples of a practice that has become a central component of contemporary peace strategies to overcome ethno-national conflicts. As of the beginning of the new millennium, ethno-national conflicts, such as those in Kashmir, Cyprus, Northern Ireland, Bosnia and Herzegovina, and Israel–Palestine, are estimated to comprise more than 80 percent of the world’s conflicts (Wimmer, 2013a, 2–3). Overcoming, settling, resolving, or managing these conflicts remains a high priority for many national governments and the international community. The examples of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine demonstrate the centrality of restructuring the basic constitutional arrangements in accordance with democratic “power-sharing” in efforts to end these conflicts. Unlike majoritarian democracy, power-sharing (or “consociational democracy”), is deliberately designed to accommodate the major social groups within the state’s political structures. Power-sharing offers an alternative model of democracy, more suitable for places riven by group conflict, and serves as an additional tool of peacemaking, for conflicts that cannot be settled through, or only through, the partition of the territory or the adoption of a constitutional democracy with a bill of rights. While the advantages of power-sharing arrangements are gradually being substantiated in practice and research and gaining the support of scholars and conflict resolution experts, they have not yet gained normative legitimacy, nor have they been properly incorporated into either the human rights framework or into international and regional law. When power-sharing arrangements utilize predefined ethno-national groups as a central feature of the constitutional structure, these arrangements are widely seen as illiberal (and unjust) and as violating individual rights to equality and nondiscrimination. Consequently, significant tensions arise between peacemaking efforts and national-political choices on the one hand and international law and human rights law on the other hand. These tensions are revealed starkly in the European Court of Human Rights (ECtHR) rulings regarding the conformity of the constitutional arrangements of Bosnia and Herzegovina with the European Convention on Human Rights (ECHR).1 In these cases, the ECtHR ruled that fundamental constitutional provisions of Bosnia and Herzegovina’s political structure – those relating to the election of the presidency council and of the members of the House of Peoples (Bosnia and Herzegovina’s upper legislature chamber) and reserving them to citizens of Bosnia and Herzegovina who are affiliated to 1

These cases include Sejdić and Finci v. Bosnia & Herzegovina (December 22, 2009) ECtHR Application Nos. 27996/06, 34836/06 and the subsequent Zornić v. Bosnia & Herzegovina (July 15, 2014) ECtHR (3681/06); Šlaku v. Bosnia & Herzegovina (May 26, 2016) ECtHR (56666/12); and Pilav v. Bosnia & Herzegovina (June 9, 2016) ECtHR (41939/07).

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one of the three ethno-national groups – violate the right to equality and nondiscrimination and the right to equal participation in elections, and therefore must be revised. 1.1.2  Peace versus Justice The tensions between power-sharing arrangements and human rights are generally viewed as a dilemma between peace and justice, and, until now, the primary way to reduce them has been through the development and promotion of liberal versions of power-sharing. While these versions considerably reduce the tensions, they do not eliminate them entirely. Moreover, in practice, and given the high complexity of peace negotiations, it is not always possible to devise an agreement based on liberal power-sharing models. Therefore, while infringement of individual rights might be reduced when designing powersharing arrangements, it cannot be avoided. Thus, a need to justify infringements of human rights – as Bosnia and Herzegovina was required to do before the ECtHR – remains. Generally, the main justification given to support human rights violations caused by ethnic power-sharing arrangements is that such arrangements are an indispensable political compromise in situations of ethno-national conflict and are preferable to the continuation of bloodshed. However, relying on this justification may result, as in Bosnia and Herzegovina’s case, in a clear conflict between peacemaking and national politics and human rights requirements. As the ECtHR case law reveals, ethnic power-sharing arrangements are viewed as legitimate only in exceptional circumstances, and they are expected to be temporary, until a majoritarian democratic system, whose political legitimacy is taken for granted, can replace them. Although the use of exceptional and temporary political circumstances to justify power-sharing arrangements and the recommendation that courts adopt a much more prudent approach when they review such arrangements are in place, they do not adequately tackle the problem of legitimacy underlying the disparity between ethnic power-sharing and human rights obligations. This book argues that this “peace versus justice” framing of the tensions between power-sharing and human rights is inaccurate, as it is built on an individualistic conception of justice and a narrow understanding of a legitimate political system. Importantly, these narrow conceptions fail to account for the meaning and requirements of justice in loci of deeply divided places, consequently ignoring the actual justice that power-sharing and other collectivebased arrangements can promote.

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1.1.3  Reevaluating Justice: Collective Equality To capture more accurately what justice means and what promoting justice requires in the context of deeply divided places, this book proposes the concept of “collective equality” as a central element of justice in deeply divided places and as a new theoretical basis for the law of peace (Bell, 2008). Collective equality adds to the existing theoretical treatment of questions regarding peace, justice, and constitutional frameworks by recognizing national groups (minorities and majorities) as primary and legitimate political actors that are substantially equal. The new concept acknowledges that in situations of conflict, the construction of equal and nondominating relations among rival groups is a core rationale of just peace. Collective equality is built on a collective and relational understanding of justice that reflects the prevalent understanding of justice in places of group conflict. Its core elements include the recognition of ethno-national groups as primary political entities, which are substantively equal and engaged in interdependent and nondominating relations among themselves. By clarifying that the responsibilities of national groups are extended not only toward states and individuals, but also toward the other national groups with which they interact, collective equality reinstates the principle of reciprocity to the framework of group rights (compare Rawls, 1993, 16–17; 2001a, 6, 49; 2001b, 7, 14, 35). I propose four dimensions in order to evaluate the construction of equal and nondominating relations among rival groups: equality in negotiations; political equality (often requiring bespoke power-sharing arrangements); social and economic equality; and equal recognition of culture, language, and national aspirations. The study does not suggest collective equality as a general principle applicable in all places at all times. Rather, it is a special concept (cf. Hart, 1955, 183–188) conducive to the promotion of equality and inclusion in deeply divided places, where the political landscape is shaped by a conflict between national groups. 1.2  NATIONALISM IN DEEPLY DIVIDED PLACES

1.2.1  The Challenge of Ethno-national Conflict The 1995 Dayton Peace Agreement succeeded in ending the war in Bosnia that erupted during the disintegration of Yugoslavia in the early 1990s. The Bosnian war lasted for three-and-a-half years (1992–1995) and took the lives of about 100,000 people, while over 2 million others were displaced as part of a deliberate policy of “ethnic cleansing.” The war was fought between the three ethno-national groups of Bosnia and Herzegovina – the Bosnian Serbs, the Bosnian Croats, and the Bosnian Muslims, which pursued opposite

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political and territorial goals. The Bosnian Serbs and Croats aimed to divide Bosnia’s territory and create mono-ethnic territories (and possibly to annex them to the neighboring Serb-dominated remainder of Yugoslavia and Croatia, respectively). Bosnian Muslims, supported by the international community, objected to dismantling the country and sought to maintain Bosnia and Herzegovina’s territorial integrity. Only after extensive military and diplomatic international intervention did the Republic of Bosnia and Herzegovina, Croatia, and Yugoslavia sign the Dayton Accord, which ended the war. While the conflict was driven by political aims, in the Western media and public and academic debates during the 1990s, it was portrayed as a barbarian war, driven by irrational ancient hatreds between the rival ethnic groups of the country (Kaplan, 1993; for analysis see Hansen, 2013). By April 1998, when the GFA was signed, the violent conflict in Northern Ireland had been raging for three decades. During these three decades, over 3,000 people were killed, another 30,000 people were injured, and many were displaced by intimidation, forcing them to move to ethnically segregated neighborhoods. Frequently regarded as a conflict between the Catholics and Protestants of Northern Ireland, it is at least as deeply rooted in the centuriesold Irish struggle against the British colonial rule of the island. Cyprus today is an ethnically divided island. A United Nations (UN)controlled buffer zone separates the northern section where Turkish Cypriots live, occupied by the Turkish Army, and the southern part of the island inhabited by a great majority of Greek Cypriots, internationally recognized as the Republic of Cyprus. This territorial and political division is a relatively recent occurrence and does not characterize the historic interethnic relations on the island. The first major ethnic violence between Greek and Turkish Cypriots broke out at the end of 1963, following the collapse of the power-sharing government that was established under the original Cypriot constitution in 1960. Between 1963 and 1974, a third of the Turkish Cypriots were pushed to move to separated enclaves. A coup d’état by Greek nationalists against the Greek Cypriot President Makarios prompted Turkey to respond with a military invasion, upholding its right under the 1960 Treaty of Guarantee. With the collapse of UN-led negotiations on August 14, 1974, Turkish troops in Cyprus took control of 37 percent of the island’s territory. The Turkish Army’s occupation of the island’s territory was accompanied by a mass displacement of approximately 200,000 Greek Cypriots (Michael, 2009, 31–35, 37). When the fighting ceased, the Turkish Army remained, resulting in the division of the island between the “Greek side” and the “Turkish side,” which remains to this day. While the Cyprus conflict is generally regarded as a “frozen conflict,” the rivalry between Greek Cypriots and Turkish Cypriots continues to shape

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the relations on the island and between the Republic of Cyprus and Turkey, repeatedly threatening to burst out. The conflict between Israel (or Israeli Jews) and the Palestinians (Palestinian Arabs) is known as one of the most intractable contemporary conflicts, has cost the lives of more than 15,000 people, and continuously affects the lives of millions. From the early twentieth century to the present, the conflict has seen multiple violent forms, including full-scale war between Israel and its Arab neighbors in 1948, leading to a massive displacement of Palestinians, many of whom became refugees. The conflict has also caused Israeli military actions against Lebanon; terrorist operations against Israel led by the Palestinian Liberation Organization (PLO) and various factions over the years; two Palestinian uprisings; rocket attacks from the Hamascontrolled Gaza Strip; and Israeli incursions and use of air power, routinely taking the shape of larger-scale military operations. Further, since 1967, Israel has enacted prolonged and continuous military control, in various forms and degrees, of the West Bank and Gaza Strip. Israeli military control is accompanied by a continuous expansion of Israeli settlement in East Jerusalem and the West Bank, alongside restricting Palestinian settlement and development in these areas. These are a few examples of “ethno-national conflicts,” labeled here also as “deeply divided places,” representing sites of actual or potential mass political violence, where “genocide, ethnic expulsion, or coercive assimilation are threatened, or have taken place” (McEvoy & O’Leary, 2013, 5–6). Other contemporary examples of ethno-national conflicts include India’s region of Kashmir, Iraq, Ethiopia, Sudan and South Sudan, Nigeria, and Yemen. Ethnic or ethno-national conflicts are regarded today as one of the major threats to international peace and security. As of the 2000s, over three-quarters of the world’s prominent wars were classified as ethnic or ethno-national wars, fought by nationalists who either seek to establish a new nation-state for their ethnic nation, to secede and join a kin-state, or to gain a more favorable balance of power within an existing state (Wimmer, 2013a, 2–3; see also Marshall, 2020). As the examples already given indicate, the consequences of ethno-national conflicts include great human suffering, and may result in the destabilization of provinces, states, or even whole regions. Unlike “old wars,” in which states are involved and battle is the decisive encounter (Kaldor, 2012), these “new wars” involve state and nonstate actors, run along ethnic lines of division, are generally not resolved on the battlefield, persist over a long period of time (Kriesberg, 1993, 417–421; 1998; Wimmer, 2004a; 2004b; Bar-Tal, 2007a, 25–28; 2013), and commonly perceived by the involved parties as irresolvable (Leshem et al., 2016).

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As ethnicity and nationalism are primary social factors that shape and drive ethno-national conflicts, a better understanding of them is essential for evaluating whether the existing theoretical and legal frameworks are adequate for the task of overcoming such conflicts. 1.2.2  Ethnicity and Nationalism Ethnicity. A century ago, Max Weber defined ethnicity as any subjectively experienced sense of commonality based on a belief in common ancestry and shared culture (Weber, 1978, 385–398). Like many other existing definitions of the term (Chandra, 2006), this understanding emphasizes the subjective belief of the group’s members that they share a common descent and culture as the distinguishing factor of ethnicity and ethnic groups. Weber’s understanding also clarifies the role played by different objective markers such as religion, geographic region, and language. While ethnicity is not dependent on a particular marker or set of markers, objective indicators such as common religion, common territory, common language, or common race are typical of ethnic identity, and are used to substantiate the belief in shared culture and ancestry. Nations and nationalism. Nations are one subtype of ethnic groups, and in practice many nations are “nationalistic ethnic groups” (Kuzio, 2002; 2007; see also Wimmer, 2002; 2013b), which makes the distinction between ethnic groups and nations in many cases blurry. Whereas the literature has historically defined nationalism either in ethnic (excluding all nonmembers of the ethnic group) or civic terms (defining the nation on a territorial basis), more recent constructivist interpretations understand ethnic and civic nationalism not as permanent and immanent classifications of a specific nation, but rather elements that can coexist and change over time (Tamir, 2019b, 427; Kuzio, 2002; 2007, 1). Thus, following Weber and Wimmer, and slightly altering both, I define an ethno-national group as a community defined in ethnic terms whose members have developed national aspirations, connected with an aspiration to (or a practice of) selfrule (Wimmer, 2013a, 1–2; Kymlicka, 1995, 11–20). (Notably, this definition excludes ethnic groups who do not aim for national self-determination, like Circassians in Israel.) The group’s aspiration to “self-rule” expresses the nationalistic demand that “rulers and ruled hail from the same ethnic background,” which has become the principle for legitimate statehood (Wimmer, 2013a, 1). At the core of these aspirations (and practice) rests the claim to national self-determination (De-shalit, 1996, 906; Eller, 1997; 1999, 21).

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1.2.3  National Self-Determination Conflicting sides of ethno-national conflicts generally frame their aspirations and justify their demands by claiming national self-determination. However, self-determination is a complex concept and receives various interpretations in different contexts. Prominent accounts of self-determination found in various schools of thought distinguish between cultural and political understandings of self-determination and between civic (or statist or territorial) and ethnic versions. From these common typologies, collective equality adopts a concept of self-determination that can be labeled as political and ethnic. The ethno-cultural approach to nationalism stresses the importance of culture – that is, a collective culture – for individuals. Though individual actors interpret, make claims, and struggle in the name of their group’s culture, these struggles are not (only) about culture (or religion), as the ethno-cultural approach seems to imply, but struggles with culture. Culture, being a code for authentic groupness, is the basis of the entitlement of the group to certain other stakes and rights (Eller, 1997). However, the ethno-cultural approach seems to overlook this role that national culture plays. The ethno-cultural interpretation of self-determination also misrepresents the actual demands of nations to self-determination and their justifiable interests. While the cultural interpretation focuses on cultural preservation and the institutions needed to enable it, demands made by nations are directed toward institutional arrangements that secure much wider political interests (De-shalit, 1996; Eller, 1997; 1999, 21), including the expectation that rulers and ruled hail from the same people (Wimmer, 2013a; 2013b; 2018a). Eric Hobsbawm has provided a very concise formulation of the prevailing conception of nationalism, in which “nation = state = people” (Hobsbawm, 1992, 19). Indeed, equating the nation with the state, and both with “its” people, is prevalent, and various reasons seem to support and justify it. Accordingly, civic nationalism, frequently regarded as the only version of nationalism that can be settled with liberal ideals and with a just political system, equates the nation with the state’s citizenry. Ethnic nationalism, in which the nation is defined in ethnic terms, is the repudiated alternative. It is regarded as both dangerous and unjust, since by definition it excludes those who come from other ethnic backgrounds. In similar vein, international law adopts a statist/ territorial interpretation and rejects the ethno-national interpretation of self-determination. Despite the great appeal of the equation between the nation, the state, and the people (defined as the state’s citizenry), it cannot be adopted as the only way to understand self-determination, or the right to self-determination, in

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deeply divided places. Defining the nation in territory and civic terms cannot be assumed as a pragmatic goal of peacemaking in such places, or as an adequate theoretical basis for the law of peace. Such assumptions disregard the sociopolitical realities and what can reasonably be expected in terms of social development in such places. The real or probable incongruity between the nation (defined in ethnic terms) and the state and its citizenry (defined in territorial terms) is precisely the background against which nationalistic demands are made and conflicts erupt (Young, 2005, 139; Brubaker, 1996). The international consensus seems to identify the problem of deeply divided places as resting with the ethnic divide itself. Prominent international approaches support overcoming ethno-national violence by consolidating a new nation, of the entire state’s citizenry, that will replace the former conflicting ethno-national identities. Following the rise of the politics of recognition and multiculturalism, acknowledging demands for cultural preservation has also become commonplace and is included today in international and regional human rights instruments. But understanding self-determination either as restricted to a civic (or statist or territorial) understanding (as is done in prominent liberal strands and within international law), or as restricted to the preservation of the national culture (as depicted by the ethno-cultural strand of nationalism), is an inaccurate and unhelpful interpretation of selfdetermination. They are both inaccurate as they do not provide a genuine description of the social phenomena that they are supposed to describe, and they are unhelpful for resolving self-determination conflicts. As will be developed later, they are also unhelpful for providing adequate redress for the underlying claims for justice. If we seriously consider how ethnicity and nationalism develop in deeply divided places, we must acknowledge that civic nationalism is unlikely to emerge in the short or medium term in these places, especially if we rule out morally impermissible policies, such as forced assimilation, ethnic cleansing, or worse (cf. Wimmer, 2018a; Hughes, 2014; Nagle, 2009). 1.2.4  The Role of Ethno-national Groups in War and Peace In popular beliefs, ethnic and national identities are viewed as inevitable. This approach has been labeled in the literature as the primordial approach to ethnicity. Ethnicity, by this account, is a given and stable fact of the social world – acquired by birth, subjectively felt due to its deeply rooted character, and maintained independently of changing circumstances. But in recent decades researchers have repudiated these beliefs about ethnicity. They have uncovered the constructed nature of ethnic and national identities and aimed

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to specify how ethnicity and nationalism work and how ethnic boundaries are made and unmade (Eller, 1997; 1999; Eriksen, 2002; Wimmer, 2008a; 2013b; Brubaker, 2009, 29). Labeled as the constructivist-instrumentalist approach to ethnicity and nationalism, researchers find the sole raison d’être of ethnic and national organization in its political functioning. According to this view, which represents the contemporary consensus among researchers, ethnicity and nationalism need no historical or cultural explanation. Instead, they are the outcome of a dynamic process of making ethnic boundaries, driven by actors (such as political leaders) and political motivations (prominently exclusion from state politics, as well as deprivation and discrimination), solidified by the media and the educational system as well as through a variety of conspicuous and implicit means, in which ethnic and national categories are invoked in everyday life (Billig, 1995; Brubaker, 2009, 34). One possible conclusion might have been that since ethnic and national identities are not “given” but “constructed,” they can be reconstructed in a way that better fits peaceful political arrangements. Alas, this does not seem to be the case in deeply divided places. While in nonconflictual circumstances ethnic identity can be one of many personal identities, if it reaches the consciousness of individuals at all, in places and times of ethnic conflict this identity tends to heighten and even triumph above all others (Ashmore et al., 2001; Bar-Tal, 2007b, 1443). The prominence of the ethno-national identity over other personal identities and personal preferences and worldviews is evident in the four cases compared here. Thus, although ethnicity is not a natural and inevitable fact of the social world, not all ethnic identities are fluid, unstable, and contested (Wimmer, 2013b, 204). A realistic and reasonable approach to deeply divided places must assume the ethno-national boundary itself, the division from others, as stable, at least for the foreseeable future. Several attributes of ethno-national identities during conflict and peace are assumed by the collective equality account. Centrality: ethno-national groups play a central role in the politics of deeply divided places. The ethno-national identity provides a group consciousness and acts as a mobilizing force, which turns into the overriding, or at least a central, consideration in national politics. Agency: changing the situation – primarily of the violent struggle – requires the involvement of reliable representatives of the ethno-national groups. While significant progress can be made without the prior consent of the groups’ representatives, eventually their approval and even active participation will be necessary. The Northern Ireland peace process illustrates this point. Important changes in socioeconomic inequalities could take place without any prior consent of the representatives of the Nationalist/Irish

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Catholic community. However, political equality and mutual recognition could not be significantly promoted without the intentional participation of the leaders of both the Nationalist/Irish Catholic and Unionist/British Protestant communities. Indeed, in the practice of contemporary peacemaking, most peace agreements have been reached with nonstate actors, many of whom can be regarded as representatives of ethno-national groups (Bell, 2008, 9, 128–135). Significant and lasting impact on individual wellbeing: the ethno-national identity has great influence on the wellbeing and life choices of the individual (Margalit & Raz, 1990; Taylor, 1992, 59–60; Margalit & Halbertal, 1994, 501–506; Miller, 1995a; Gans, 2003; 2008). The significance of the group includes, but is not restricted to, the securing of the group’s survival, but manifests itself also in the promotion of the “good life” as it is formed in the various ways in which an ethnic culture is created and recreated. The influence of ethno-nationalistic affiliation for the wellbeing of the individual members becomes critical in situations of active conflict. The intensity of that specific identity has sometimes been described as pervasive and overriding all others. While the degree of priority given to the ethno-national identity is the most extreme during violent conflict, it continues for many years after. Social stability and embeddedness: the central role of the ethno-national affiliation does not go away but maintains its hold for generations, especially if we rule out coercive practices directed at the eradication of the different ethnic identities. The examples of Bosnia and Herzegovina, Northern Ireland, Cyprus, and the Israeli–Palestinian conflict are illustrations of this long-lasting impact in situations of violent conflict. Yugoslavia, Belgium, and even Switzerland are examples of the embeddedness of such identities even in politically peaceful situations. While more inclusive national identities may eventually emerge, the process requires a social transformation that cannot be expected to happen in the short or medium timeframe. Importantly for the purpose of theorizing peace in deeply divided places, ethno-national identities should better be assumed as a stable fact of society (Wimmer, 2008a; 2018b; Kymlicka, 1995; Hughes, 2014). Fixed divisions, evolving identities: accepting ethno-national division as stable does not mean reverting to the primordial understandings of ethnicity. Experience reveals that while ethno-national boundaries may be stable, the content of the ethno-national identity, and the characteristics, the types of boundaries, as well as the demands made on its behalf are shaped and reshaped in response to changing circumstances, challenges, and opportunities (Eller, 1997; 1999; Eriksen, 2002; Wimmer, 2008a; 2013b; Brubaker, 2009).

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1.2.5  Causes and Characteristics of Ethno-national Conflicts Why do ethnic divisions lead to violent conflict in some situations while other places exhibit peaceful and even cooperative interethnic relations? In contrast to popular beliefs that ethno-national conflicts are driven by irrational and barbarian traits, research findings ultimately are that such conflicts are closely connected to political modernity – the global political shift to the nation-state model, characterized by the three indivisible principles of democracy, citizenship, and popular sovereignty (Wimmer, 2002, 88; 2013a; 2018a; Mann, 2005). But while at its best this political shift has allowed for the inclusion of the “masses” (previously treated as subjects), at the same time it generated new forms of exclusion, most significant here, of those not considered to be members of the new imagined family – the ethnic nation (Wimmer, 2002, 2–4; 2013a; 2013b; 2018a; Mann, 2005). The literature on ethnic conflicts increasingly relates such conflicts to political interests and egalitarian concepts of justice and conceptualizes them as struggles over who “owns” the nation-state (Wimmer, 1997; 2013a; Cederman et al., 2010). Conflicts erupt in places where political integration of the population has failed, and the citizenry has not developed loyalty toward the state (Wimmer, 2013a; 2018a). As integration along territorial/civic lines fails, politics in these places tend to be organized along ethnic affiliations, and conflicts revolve around ethnic groups’ access to the nation-state powers and over the allocation of the state’s collective goods and resources (Wimmer, 2013a; 2018a; Cederman, 2013, 538). These collective goods are diverse and complex, and include territorial sovereignty, protection from arbitrary violence, social and legal security, political representation, financial redistribution, economic infrastructure, the symbols of the state, and more (Wimmer, 1997, 642). A strong correlation has been found between exclusionary power structures – measured as the degree of political exclusion from the central government – and increased likelihood of violent conflict (Wimmer, 2013a). Respectively, a strong correlation has been found between “horizontal inequalities” – inequalities in economic distribution, political representation, and cultural recognition that parallel ethnic divisions and result in discrimination between ethno-national groups – and greater likelihood of violent conflict, especially when political exclusion and intergroup inequalities overlap (Hillesund et al., 2018; Cederman et al., 2011; Stewart, 2008; 2011). To summarize, according to contemporary understandings, ethno-national conflicts are struggles over domination – over who controls the nation-state, or more broadly over who will be superior and dominate the other. Violent conflicts are more likely to erupt when an ethnic group is discriminated against

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and marginalized from the nation-state’s common goods, and particularly when it is excluded from political power, or under a threat of becoming marginalized or losing its dominant status. 1.3  THE LIMITS OF PEACE AS STATEHOOD, DEMOCRACY, AND HUMAN RIGHTS

When imagining a peaceful world, most likely we think of a world divided into territorially bounded sovereign states, who respect the territorial integrity of other states. We (at least in the West) are likely to imagine those states as liberal democracies, which respect their citizens’ equality through constitutionally enshrined human rights and minority rights bills. But deeply divided places do not fit these political and legal paradigms, in two main ways: (1) their international borders are often contested by ethno-national groups that demand national self-determination (in a new independent state or by joining an ethnic kin-state); and (2) governments of such places tend to take the form of an autocratic regime or a (majoritarian) democracy that practices systematic discriminatory policies toward its ethnic minority. Shaped by the paradigm of a peaceful world divided into liberal and democratic nationstates, traditional solutions to ethno-national conflicts have taken two major forms: partition and democratization with human rights protections. 1.3.1  Geopolitical Solutions: Partition Demands for self-determination are usually perceived as entailing the creation of independent, homogenous, sovereign states in which self-determining people dwell together (Young, 2005). Partition in this context is therefore an intuitive solution (Bose, 2007, 2; Chapman & Roeder, 2007; Smooha, 2001), as it seems able to promote multiple purposes. It promotes the aspiration of a nation for a state of its own, and it promotes the creation of a truer “nationstate,” considered by traditional liberalism to provide favorable background conditions for liberal democracy (Mill, 1977, 546–547). Additionally, realists argue that in ethno-national conflicts, pragmatic considerations point to partition of the territory and separation of the population along ethnic divides as the best and even the only way to end the violent conflict (Kaufmann, 1996). Chaim Kaufmann, one of the proponents of partition and separation as a strategy for ending ethnic wars, predicts that stable resolutions of ethno-national wars require the opposing groups to be “demographically separated into defensible enclaves” (Kaufmann, 1996, 137). He argues that stable resolutions of ethnic wars are possible only when the opposing groups are demographically

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separated into defensible enclaves, as the separation reduces the incentives and opportunities for fighting. There are significant moral and pragmatic obstacles as well as limitations to partition as the paradigm within which solution to ethno-national conflict is perceived and promoted. Partitions run against one of the fundamental rules of international law – the requirement to respect the territorial integrity of sovereign states. Partitions are therefore not promoted by international law as a redress for national minorities (Kosovo International Court of Justice Advisory Opinion, 2010; Kohen, 2006; Kymlicka, 2007b; Shany, 2014). But even when partition is legally supported by international law – as in the case of Israel–Palestine – it is a very limited tool for ending ethno-national conflict. Given the existing ethnic diversity in most sites of conflict and indeed most places in the world, partition is unlikely to produce homogenous territories. Ultimately, the aim of ethnic homogeneity usually requires population transfers, where demographic separation is presumed to be the means to end the ethnic violence. However, population transfers, which may have been considered a legitimate process for reaching peace a century ago, are rejected both morally and legally today. Since demographic separation is unattainable, even if partition takes place, partition alone cannot be regarded as a satisfactory course of action for resolving ethno-national conflicts, and the continuation of ethno-national diversity (within the nation-state and across its borders) must be taken as given. Ethnonational conflicts, as illuminated by the four cases examined here, involve intense, even intimate intermixing between communities, even in places characterized by great animosity and social separation between the groups. For these reasons these conflicts have been defined as “intimate conflicts” – conflicts in which “enemy groups share a fundamentally and comprehensively interdependent fate, not because of any moral ideal, but simply as a matter of fact” (Du Toit, 2018, 199). Therefore, a reasonable policy of conflict resolution must acknowledge and attend to the continuation of ethno-national diversity, with all the special attributes that accompany national groups in deeply divided places (Bar-Tal, 2007a; 2007b). 1.3.2  Geopolitical Solutions: Constitutional Liberal Democracy According to international politics and international law, the sovereign state is responsible for the inclusion of the entire population, and must respect its equal rights, preferably through a constitutional liberal democracy. But while liberal democracy and human rights provide a suitable model for peaceful societies, a key question for peace theory is whether this model is fit for places

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currently defined as “deeply divided.” Does the paradigm of liberal (majoritarian) democracy, even when envisaged as constitutional democracy with protection for individual and minority rights, offer a valid and acceptable ideal for the populations of such places? Does it offer a reliable path from systemic exclusion and discrimination to inclusion and equality; that is, can we rely on democracy and the human rights framework (with its heavy tilt toward individual rights) to breed political inclusion and equality in places where they are absent? John Stewart Mill has famously claimed that a vital precondition for liberal democracy is that it should apply to societies that adhere to a nationality – a collective of people who share “common sympathies” and a desire to be under the same government composed of co-nationals (Mill, 1977, ch. 16; cf. Rawls, 2001b, 23). But a common and inclusive nationality is precisely what is missing in deeply divided places. Diverting from Mill’s assumptions, the liberal peace paradigm that has informed democratization processes during the last few decades assumed that sustainable peace could be achieved through institutions and norms. That is to say, when norms and institutions uphold liberal democracy, a free-market economy, individual human rights, and the rule of law, these societies are likely to be peaceful (De Coning, 2018a, 302; Donais, 2012, 5). But the promises of the liberal peace approach did not materialize. Triggered by the US-led interventions in Iraq and Afghanistan, and their apparent failures, it has been realized that the liberal and democratization approach to peace does not yield the hopeful results (Campbell, 2011; Wimmer, 2013a, 179–180, 190; Wilkens, 2016; De Coning, 2018a, 304). In parallel, since the 1990s liberal theory has diversified to include liberal multiculturalism as a more suitable account of liberal democracy for ethnically diverse places (Kymlicka, 1995). However, less than two decades later it was realized, by Kymlicka himself, that liberal multiculturalism does not do well in conflict-ridden places. A survey about the implementation of liberal multiculturalism around the world found that multicultural policies do not properly apply to places where the relation between a minority and the state is considered a matter of national security, and when granting collective rights to the minority raises fears of instability (Kymlicka, 2007, 118–119, 182, 304). Liberal democracy and liberal multiculturalism do correlate with more political inclusion and equality. However, the relations between inclusion and democracy are of reverse causality; that is, global statistical analysis has found that places that are politically inclusive are more likely to democratize, but places that democratize have not been found to be more likely to become inclusive (Wimmer, 2013a, 179). The important point is that we cannot count on democracy to breed inclusion and equality in conflict-ridden places.

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1.3.3  Legal Solutions: Human Rights and Minority Rights Law In 1947 the UN adopted the human rights framework as the primary way of protecting minority groups and as a guarantee for the equal inclusion of minorities in the modern state. But it soon became evident that individual human rights are not enough, and that special minority rights measures were needed to protect individuals belonging to minorities from discrimination (OHCHR, 1998; Thornberry, 1980; Kymlicka, 1995; Hannum, 1996; Henrard, 2000). Although binding international law of minority rights has remained relatively limited (Nowak, 2005, Article 27), in 2007 a significant milestone was reached with the adoption of the UN Declaration on the Rights of Indigenous Peoples (DRIP). The DRIP recognizes the collective right of indigenous peoples to internal self-determination in the form of “autonomy or self-government in matters relating to their internal and local affairs” (DRIP, Art. 4). Indeed, during the last few decades, human rights (including minority rights) have developed into an extensive and sophisticated framework. But while human rights have become the hallmark of justice and are said to provide “the vocabulary of justice for our globalizing world” (Macklem, 2015, 1), it is increasingly clear that this framework is unable to achieve what it was tasked to do – securing the equal inclusion of all the state’s citizens. While individual human rights are acknowledged as insufficient to correct the structural discrimination of minorities, even in Western European countries (Makkonen, 2012), states are reluctant to adopt minority rights measures, especially in deeply divided places, where the national minority is perceived as a threat to the state or to the national majority (Kymlicka, 2007, 190–194, 309–315). 1.3.4  Conclusion: The Shortcomings of the Traditional Approaches Existing international law denies the right to separate self-determination for national minorities and assumes that their rights should be secured by a parent state adhering to human rights obligations. But these human rights do not properly secure equality and inclusion, especially for national minorities in conflict-ridden places. Alongside its severe practical limitations in securing substantive equality and inclusivity for national minorities in conflict-ridden places, the human and minority rights framework also fails to adequately address majorities’ concerns and substantive fears. 1.4  HOW HUMAN RIGHTS INHIBIT PEACE AND JUSTICE

Given the limitations of constitutional democracy, human rights, and minority rights, it is unsurprising that those privy to peace agreements

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(e.g., parties to the conflict, negotiators) search for alternative solutions and increasingly opt for power-sharing arrangements, as a more suitable model for governing deeply divided places than the majoritarian model of democracy. Unlike majoritarian democracy, power-sharing arrangements deliberately aim to accommodate the major social groups within the state’s political structures. In places where the sociopolitical structure comprises ethno-national identities, power-sharing arrangements are often designed to accommodate these social groups, and for that purpose classify individuals by their identity. But when power-sharing systems ethnically classify individuals and prioritize some groups, they are accused by organizations and institutions committed to human rights protection, as well as by others holding to liberal views, of violating human rights. In particular, these systems have been found to violate the right to individual equality and the obligation to avoid discrimination on ethnic grounds (Hodžić, 2020, 529; McCrudden & O’Leary, 2013b). Thus, while power-sharing arrangements are accepted as temporary measures required for securing peace, they are seen as nondemocratic, discriminatory, and unjust. 1.4.1  The Human Rights Battle over the Constitution of Bosnia and Herzegovina A vivid example of the negative normative evaluation of ethnic powersharing arrangements is the ongoing battle over core elements of Bosnia and Herzegovina’s constitutional arrangements, which the ECtHR ruled was discriminatory and requires revision (Hodžić, 2020, 531). The Bosnia and Herzegovina constitution, a central component of the Dayton Peace Accord, was negotiated on behalf of Bosnia and Herzegovina’s three ethnonational groups (Bosniaks, Bosnian Serbs, and Bosnian Croats). These groups, although unequal in size,2 are equally defined by the constitution as “constituent peoples,” reflecting a local understanding that the polity of Bosnia and Herzegovina comprises all individual citizens and these three groups (Constitution of Bosnia Herzegovina, 1995, preamble). Bosnia and Herzegovina’s power-sharing arrangements reflect and give effect to this recognition of “constituent peoples.” Bosnia and Herzegovina’s presidency consists of three members, one from each group. The legislature consists of two chambers, the House of Peoples and the House of Representatives, with all legislation requiring the approval of both. While the House of Representatives 2

Approximately 45% Bosniaks, 30% Serbs, and 17% Croats in 1992, when BiH had a population of 4,377,000.

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is elected via proportional representation, the House of Peoples has 15 members equally distributed among the three ethnic groups. Two petitions to the court have been brought by Devro Sejdić and Jacob Finci – a Roma and a Jewish citizen of Bosnia and Herzegovina, respectively, who are not affiliated with one of the three “constituent peoples.” Sejdić and Finci argued that the election of the presidency and members of the House of Peoples is discriminatory on ethnic grounds, as they themselves are ineligible to run for these offices. The court ruled in favor of the petitioners and ordered the constitution amended on grounds of an infringement of the right to equality and nondiscrimination (European Convention on Human Rights (ECHR) Article 14) to stand for elections for the legislature (Article 3 of Protocol 1) and for the presidency (Protocol 12). The court refrained from deciding whether these constitutional arrangements advance a legitimate aim, as it found no reasonable relationship of proportionality that justifies different treatment, especially due to the time that had elapsed since the end of the violent conflict. Importantly, the court classified the use of ethnic criteria by the power-sharing arrangements of Bosnia and Herzegovina as racial discrimination, which “requires from the authorities special vigilance and a vigorous reaction” (Sejdić and Finci v. Bosnia & Herzegovina, 27996/06; 34836/06, para 43). The ECtHR rulings in Sejdić and Finci v. Bosnia & Herzegovina and in subsequent cases have established that fundamental constitutional arrangements, even those accepted as an integral part of a peace agreement, are not immune from judicial review. They have also established that ethnic powersharing arrangements based on ethnic affiliation that impinge upon recognized individual rights are a form of racial discrimination, even if based on a system of “self-designation” (as set by Bosnia and Herzegovina’s constitution), and therefore require that possible justifications are strictly assessed. Practically speaking, the ECtHR rejected the political and regulatory goals informing the Dayton Accord and Bosnia and Herzegovina’s constitutional identity, according to which the three ethno-national groups are granted special status as peoples who are eligible for a central political role in the state’s center of power. 1.4.2  Assessing Taken-for-Granted Assumptions Beyond the court’s understandably resolute stance on individual political equality, its reasoning reveals a potent underlying normative assumption: ethnic power-sharing arrangements are an inherently improper political system, a regrettable compromise, acceptable as temporary measures that are required

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to overcome violent ethnic conflict, unlike a simple reflection of majority rule (Sejdić and Finci v. Bosnia & Herzegovina, para 48; McCrudden  & O’Leary, 2013a; Hodžić, 2020). Majoritarian democracy is regarded as morally superior to ethnic power-sharing as it arguably allows for an overarching, nonethnic, nonsectarian, and inclusive nationalism. From the court’s decisions (examined in Chapters 6 and 9) we learn that arrangements aimed at accommodating collective interests of ethno-national groups within the state’s constitutional system generally should not exceed the realm of cultural rights (Sejdić and Finci v. Bosnia & Herzegovina, para 22). The court’s political and justice conceptions seem to reflect a Western and liberal consensus. But this Western liberal consensus cannot be presumed as suitable for deeply divided places. Promoting justice in such places, where an overarching and inclusive nation is lacking, must attend to two, seemingly antithetical challenges: one, overcoming institutionalized discrimination and marginalization of national minority groups by the state’s majorities; and two, overcoming and accommodating the majority’s insecurities regarding their future, particularly the real or perceived threat of being dominated by another group. While much has been written about the failure of human rights law to overcome systematic discrimination of national minorities (a failure generally attributed to the limitations of an overindividualistic human rights law and unsatisfying minority rights legal protections), little scholarly attention has been given to the challenge of overcoming the real or perceived threats to the national majority, as majority interests are generally not formally acknowledged within liberal and human rights accounts. As human rights law fails to properly respond to these two challenges, it cannot offer valid normative guidance for securing equality and inclusivity in deeply divided places. Indeed, liberal democracy, human rights, minority rights, and international law are not a coherent or unified framework and include highly rich and diverse accounts, which are continually developing. Yet, in the context of deeply divided places, these different accounts seem to share a common flaw  – a highly negative view of ethno-nationalist struggles, often derided as the “new tribalism,” “barbarian” self-determination, or secessionist or irredentist struggles (Berman, 2011, 388). Indeed, this negative view has its roots in the real dangers of exclusionary, unchecked, and violent ethno-nationalism. Still, the negative view wrongly influences our judgments. Consequently, the way in which the political solutions crafted to accommodate the interests of those ethno-national forces – such as the ethnic power-sharing arrangements of Bosnia and Herzegovina – are also viewed as intrinsically lacking legitimacy. Underlying this negative view of ethno-nationalist struggles rest inaccurate perceptions about the ways in which exclusionary and unchecked

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ethno-nationalism can be mitigated and about ethno-national groups and their interests, leading to a failure to distinguish between legitimate claims of justice from illegitimate, self-interested claims to power (cf. Koskenniemi, 2006, xiv). I therefore argue that the illegitimacy attributed to ethnic power-sharing arrangements because of their alleged disparity with human rights obligations is not required by justice; rather, it derives from a misconception of what justice means and what promoting justice entails in deeply divided places. Specifically, it results from an overindividualistic human rights law, from a misconception about what a proper democracy entails, and how democracy can be promoted, which ends up obstructing equality and political inclusion instead of promoting it. 1.5  COLLECTIVE EQUALITY: REFRAMING JUSTICE IN DEEPLY DIVIDED PLACES

The critical assessment of the traditional approaches to conflict resolution and of how human rights law responds to complex power-sharing deals highlights the obstacles that liberal and international normative frameworks impose on promoting peace and justice in places of ethno-national conflict. Such understandings are essential not only for having a clearer view of “what is wrong” with our normative frameworks, but also for having a clearer view of how to correct it: how we need to change our moral and legal judgments of the demands of ethno-national groups and their achievements in peacemaking. The idea of collective equality is a new conceptualization of justice in deeply divided places and of the path from ethno-national conflict to peace. It aims to make our moral and legal gaze more attentive and responsive to the actual injustices prevalent in places of ethno-national conflicts, and to the ways in which these can be remedied, to prevent reoccurring conflict. To develop this novel concept of collective equality, the book explores these claims through the lenses of political justice, pragmatic political considerations, and international law, and promotes three central propositions. First, promoting equality among ethno-national groups – as suggested by the concept of collective equality – should be adopted as a core rationale underlying just peace processes in situations of group conflict. Second, promoting collective equality is politically possible and likely to be effective in advancing sustainable peace. Third, collective equality enables a more adequate reading of the right to self-determination and subsequently makes international law more apt to regulate ethno-national peacemaking.

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1.5.1  What Is Collective Equality? Instead of wishing away the ethno-national divide and devising an unrealistic conception of justice, collective equality begins by recognizing national groups as a foundational social and political element of deeply divided places. Accepting that the ethno-national cleavage is a social feature not likely to change in the foreseeable future of such places (Wimmer, 2018a; Hughes, 2014), does not require abandoning the core liberal ideals of equality and inclusion. However, these ideals should be approached in a different way. This is the aim of collective equality offered in this book – to capture more accurately what justice means and what promoting justice requires in deeply divided places. Adopting John Rawls’ idea of a “system of social cooperation,” and expanding it to include relations between ethno-national groups, collective equality addresses two issues neglected in prominent accounts of group rights: (1) the place, role, and rights of dominant collectives; and (2) the reciprocal nature of the relations between majorities and minorities/dominant and nondominant collectives. Thus, the first step of collective equality – the recognition of national groups – regards both national minorities and national majorities as primary and legitimate political actors that are substantially equal. The second step of collective equality is to identify the relevant kind of equality among national groups as relational. Following Iris Marion Young, the equality of ethno-national groups is explained through the concepts of nondomination and interdependence (Young, 2005; cf. Pettit, 2010). It is argued that these two concepts represent the more reasonable relationship between rival national groups that can replace, for the long run and for the right reasons, the power struggle for and against domination underlying group conflicts. The third step of collective equality identifies the transformation of the relations among national groups as a core element of peacemaking. Recall that the relations among these groups in deeply divided places are characterized by exclusive power structures, inequalities along the ethno-national divide, and a struggle over who dominates the nation-state. The transformation of these relations between ethno-national groups – from exclusion, inequality, and a struggle over domination, to interdependent and nondominating relations – constitutes a core rationale of just and sustainable peace. Under the concept of collective equality, the responsibility to respect the equality of national groups rests not only with the state(s) but also with the national groups themselves. Inspired by Rawls’ Law of Peoples, collective equality assumes respect and self-respect as a fundamental interest of all ethno-national groups (Rawls, 2001b, 34). As all parties to an ethno-national

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conflict expect to receive respect from the others, they should be willing to grant it in return for receiving it (cf. Rawls, 2001b, 34–35). By clarifying that the responsibilities of national groups are extended not only toward states but also toward the other national groups with which they interact, collective equality reinstates the principle of reciprocity to the framework of group rights (cf. Rawls, 1993, 16–17; 2001a, 6, 49; 2001b, 7, 14, 35). 1.5.2  The Four Dimensions of Collective Equality Drawing on Fraser’s tripartite account of political justice (2004; 2008b), the construction of equal and nondominating relations among rival groups, and the promotion of favorable conditions for such relations, can be ­evaluated along four dimensions, capturing the major families of justice claims. These include three substantive justice dimensions and one dimension of ­procedural justice: (1) representation – political equality, often requiring particular power-sharing arrangements; (2) redistribution – as social and ­ ­ economic ­equality; (3) ­recognition – equal recognition of the culture, language, and national aspirations; and (4) equality in procedures that focuses on equality among the parties in negotiations. Notably, while there are considerable similarities between different places of group conflict, the social conditions in each place are unique. Thus, the application of collective equality is assumed to be sensitive to and dependent on the specific social conditions and context, which should inform our judgments about what peace and justice demand in each place. Furthermore, I do not propose that collective equality is a general principle applicable in all places at all times. Rather, it is a special concept (cf. Hart, 1955, 183–188) conducive to the promotion of equality and inclusion in deeply divided places, where the political landscape is shaped by a conflict between national groups and characterized by intergroup mistrust and rivalry. In contrast to how prevailing notions of the relations between justice and peace are conceived, collective equality assumes that peace and justice support each other (rather than undermine each other) more significantly than is currently acknowledged. 1.6  COLLECTIVE EQUALITY AND THE PROMOTION OF PEACE

The discussion of collective equality might be seen as naïve and lofty. Yet, comparative analysis and empirical research support the view that collective equality sets up a realistic utopia (Rawls, 2001a, 4); that is, a realistic ideal of justice that is more likely than the dominant versions of liberal justice to advance sustainable peace in deeply divided places.

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1.6.1  Collective Equality and Peacemaking (“It’s Possible”) To a large extent, collective equality is a conceptualization of real-world experiences and central peacemaking practices. Peacemakers’ views, as well as the actual choices made by the signatories to peace agreements – such as those of Bosnia and Herzegovina and Northern Ireland – illustrate that including the major population groups within the state’s structures and according to them equal recognition can help sustain critical compromises. A prime example of establishing political relations between ethno-national parties as peers in a system of social cooperation is the adoption of power-sharing arrangements as a central part of peace agreements. In Bosnia and Herzegovina, this aspect of collective equality is reflected in the constitutional provisions regarding the presidency and the House of Peoples. In Northern Ireland it is reflected in the sharing of the most senior political position – the First Minister and the Deputy First Minister, which are the joint heads of government of Northern Ireland – by the two communities, and in other consociational measures. In the Cypriot conflict it is reflected in the norm that the peace negotiations will take place on an equal footing (Art. 4, A/RES/3212 (XXIX), resolution 3212 (1974), GA UN), and in the agreement that Greek and Turkish Cypriots are politically equal, as reaffirmed in February 2014: “The settlement will be based on a bicommunal, bizonal federation with political equality” (Joint Declaration, February 11, 2014).

1.6.2  Collective Equality and Sustainable Peace (“It’s Effective”) Empirical findings provide support to the claim that promoting equality among groups – along economic, cultural, and political representation aspects – is advisable for pragmatic reasons and reduces the likelihood of violent conflicts (Coleman & Deutsch, 2012, 8). While “horizontal inequalities” between groups, particularly when they are consistent across economic, political, and cultural dimensions, are found to increase the probability of violent conflict, correcting them by enhancing political inclusion, narrowing intergroup socioeconomic inequalities, and advancing mutual recognition are identified as prominent policy recommendations for conflict prevention (Stewart, 2008, Wimmer, 2013a; 2018a; Gleditsch, 2020, 73). In addition, empirical research also found a correlation between equality – when a central part of peace agreements – and greater durability of peace (Albin & Druckman, 2012a; 2012b). The Universal Declaration of Human Rights (UDHR) acknowledges the intrinsic connection between justice and peace and maintains that human rights are indispensable to both (UDHR, preamble). Review of the causes

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and escalation processes of ethno-national conflicts confirms the tight connection between injustice and violence – but only if we adopt a collective and relational understanding of justice. Accordingly, I maintain that collective equality justice, in the form of equal and nondominating relations among ethno-national groups, is a primary pillar also of sustainable peace. It assumes that rectifying group-based inequalities – directly affecting injustices experienced by their individual members – is necessary for the promotion of peace and justice. By transforming the relations among rival ethno-national groups toward equality and interdependence, collective equality aims to address root causes of ethno-national conflicts that are not addressed by the existing framework of international law and human rights. 1.7  COLLECTIVE EQUALITY AND INTERNATIONAL LAW

The idea of collective equality has two key implications for the law: It promotes a new reading of the right to self-determination, and a new balancing between collective measures and individual human rights, aimed at fostering equality and inclusion in deeply divided places. 1.7.1  A New Reading of the Right to Self-Determination Self-determination is an ever-evolving standard (Rodríguez-Santiago, 2016). Collective equality aims to contribute to the evolution that is already underway from an exclusive statist-territorial approach to self-determination to a more substantive understanding of self-determination as a collective human right (Mégret, 2016). Building on emerging trends in self-determination law, collective equality’s suggested reading of the right is based on three central components. The first is upholding “peoples” as political and cultural collectives (rather than nations defined only in territorial-civic terms) that aspire and act toward political self-determination. “Peoples” under this interpretation may include the entire population of a state, existing national minority groups, and national majority groups. Hence, both nondominant and dominant groups are included. The second is upholding the equal rights of peoples, equality being a foundational element of the law that is missing from current accounts of internal self-determination; and the third is treating national groups’ right to selfdetermination and the norm of territorial integrity not as all-or-nothing rules, but as principles that, when in conflict, should be balanced. Thus, upholding self-determination is a collective human right rather than an international rule. Who the “peoples” entitled to self-determination in the sense of independent sovereign states are remains a highly debated question. The debate

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centers around two understandings of self-determination: territorial-statist and ethnic-cultural (Koskenniemi, 1994). Although Article 1 of the two human rights covenants (International Covenant on Civil and Political Rights, 1966, and International Covenant on Economic, Social and Cultural Rights, 1966) starts with the straightforward wording that “All peoples have the right of selfdetermination,” traditionally the territorial understanding of the right got the upper hand (Donnelly, 1993, 133; Kohen, 2006; Shany, 2014). Nevertheless, during the last few decades one can identify several legal developments in the international law of self-determination. Among these developments we can point to the ideas of internal self-determination (Cassese, 1995; Hannum, 1996; Raic, 2002; Roth, 2018), remedial secession (Buchheit, 1978; Cassese, 1995; Tomuschat, 2006; Tancredi, 2006), and the conceptualization of self-determination as a procedural notion (Tancredi, 2006; Klabbers, 2006; Peters, 2011). Surprisingly, while people’s equal rights are part of the original international texts, equality is missing from current accounts of internal self-determination (cf. Berman, 1988, 65; Raic, 2002, 226–227). Focusing on the contemporary challenges that the international community face, central among which are ethno-national conflicts, I find equality – the recognition that the right of a people to self-determination cannot transgress the same right of other peoples with whom that people interact – to be central to the interpretation and the application of the right in contemporary cases in which it is evoked. Building on the sophisticated and nuanced developments in selfdetermination law, the idea of collective equality offers a way to bring them together within one principled interpretive approach. I propose to do so first of all by adding equality as an inherent element of the right. Adding equality enables us to reinstate and to contextualize the legal requirement that the right to self-determination is an equal right of all peoples. This book’s focus on contemporary conflicts between national groups that are fated to live together reveals the importance and substantive meaning of the attribute of equality to self-determination. Second, the idea of collective equality supports the transformation of self-determination from an international rule (a right of colonized areas to form an independent state or alternatively a pretext for sovereign states to deny any collective remedy for minorities) to an international collective human right, by adopting a more extensive account of legal balancing. The  “procedural” approach to self-determination made an important step in this direction by reconceptualizing the right as a right “to be heard” and to be “taken seriously” (Klabbers, 2006). The collective equality interpretation recognizes self-determination as exercised and fulfilled in multiple ways (Raic, 2002). However, since exercising the right is likely to infringe

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on other people’s rights and interests (including the interest in territorial integrity), the preferred way for fulfilling the right in a given context can and should be balanced with these other rights and interests. Hence, the main task is to adopt and adapt techniques familiar from public law aimed at balancing conflicting rights and interests, to replace the traditional “allor-nothing” rules currently characterizing self-determination law (Peters, 2011, 102). Such an understanding of the right to self-determination opens the door to consider, through dialogue and negotiations, the different ways in which the right can be exercised in practice while giving due regard to competing states’ interests. Collective equality’s interpretation of selfdetermination law provides a principled benchmark that is needed for an informed legal analysis of self-determination demands in each case. Indeed, different measures, including the redesign of electoral systems, resource redistribution, the adoption of consociational democracy, federalism, confederalism, deferred secession, dual citizenship, cross-border cooperation, and more, have already been used in practice to resolve group-based conflicts (unfortunately, frequently only after the use of violence; Kymlicka, 2008, 20). Collective equality’s principled approach to self-determination hopefully equips the parties, negotiators, and legal institutions with theoretical concepts and legal guidelines to narrow the misunderstandings and tensions between peacemaking, justice considerations, and human rights obligations in the context of deeply divided places. While the state-centered interpretation of the right to self-determination may have been needed to the historical task of overcoming colonialism, the interpretation offered here seems better suited to the contemporary task of international politics and law – resolving conflicts between competing national groups that are bound together whether they like it or not. Instead of a sword aimed against a foreign and faraway colonial power (external selfdetermination) or acting as a tool of protecting the minority against the majority (internal self-determination), the collective equality reading of the right to self-determination can help improve the performance of international law as a regulatory framework for peace negotiations between ethno-national groups. By recasting national groups in conflict as peers within a system of ongoing social cooperation, international law may be better positioned to encourage dialogue and may diminish the attraction of resorting to violence to both sides. Diverging from the traditional approach of international law and recognizing the rights of national collectives (and not only of civic/territorially defined collectives) has obvious dangers, prime among which is the danger of exclusionary and unchecked ethno-nationalism. The book will therefore aim to explain why the collective equality approach may be more fruitful to

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mitigate this danger in places of ongoing conflicts, and how it is aligned with liberal justice and human rights principles. 1.7.2  New Balancing between Collective and Individual Rights As we see in the case of Bosnia and Herzegovina, collective and individual interests are likely to come into tension. Adopting the idea of collective equality means that what has been previously regarded as illegitimate may be redefined now as legitimate interests, thus affecting the way in which these tensions are to be handled. Recognizing the collective rights of national groups does not imply a new regime under which individual rights are subject to collective rights or transgressed by political exigencies. As with liberal multiculturalism, minority rights, and indigenous peoples’ rights, the recognition of the principle of collective equality comes in addition to, not instead of, the commitment to the protection of individual rights and the inclusion of all citizens. Indeed, as legitimate collective and individual interests are likely to come into tension, compromises will be needed even in the best scenarios. While tensions between individual and collective rights are not new and balancing them is already practiced with regard to indigenous peoples, this has not yet been applied to national groups (minorities and majorities) or in the context of entire states. Hence, collective equality poses additional challenges, particularly regarding equal political participation of minorities and individuals not from one of the national groups included in the power-sharing arrangements. The book aims, therefore, to develop an account of collective equality that is in line with the principles of individual equality, political inclusion, and social justice. 1.8 METHOD

The book’s theoretical endeavor is substantially shaped by justice principles that arise from peacemaking practice, and from the sociology of ethno-national conflicts. It builds on contemporary understandings of ethno-national conflicts and of the requirements of peacemaking in locales of extreme divisions, which are tested and grounded by looking at four conflicts and related peace processes. In understanding and explaining the phenomena of ethnicity, nationalism, and ethno-national conflicts, this work builds primarily on Andreas Wimmer’s views on these subjects and utilizes his scholarship (1997; 2002; 2013a; 2013b; 2018a) as well as the rich and empirically grounded studies of many others, among them Bose (2005; 2007; 2017); Brubaker (1996; 2004; 2009); Cederman (2002; 2013); Cederman et al. (2010); Eller (1997; 1999); Mamdani, (2020);

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Mann, (2005); Stewart (2008; 2011); Wolff, (2006). In describing, explaining, and theorizing power-sharing as a tool of peace, I rely primarily on the works of Hartzell and Hoddie (2003; 2007; 2015); Lijphart (1968; 1969; 1977a; 1977b; 2004; 2007); McCrudden (2006; 2013; 2017); McCrudden and O’Leary (2013a; 2013b); McGarry and O’Leary (2004a; 2004b; 2007; 2008; 2009); O’Leary (1998; 2005; 2018); Wolff (2008; 2009; 2011a; 2011b), among others. For exploring what political justice means and requires, this work adopts as its primary theoretical framework Rawls’ basic idea of society as a fair system of social cooperation (1993; 2001a; 2001b), but adapts it to conditions prevalent in deeply divided places and to the challenges of transition from conflict to peace, using a “nonideal,” “context-sensitive” approach. In addition to Rawls, the theoretical argumentation builds on the works of Will Kymlicka’s Multiculturalism (1995), Yael Tamir (1995); David Miller (1995a; 2000) and Chaim Gans’ Liberal Nationalism (2003; 2008), Iris Marion Young, (2004) and Philip Pettit’s (2010) ideas regarding nondomination; Elizabeth Anderson, (1999) and Christian Schemmel’s (2012) relational understanding of equality; and Nancy Fraser’s account of political justice (2004; 2008b), among others. As the book aims to ground collective equality within international law, it also draws and builds on human rights principles and existing international and regional law, mainly the principles of equality, nondiscrimination, and the right to self-determination in international law. The background research for the book included multidisciplinary literature and a comparative analysis of the conflicts in Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine. While all four situations share generic similarities, the distinct histories and circumstances of each are unique. Examples from the four conflicts, as well as from other places where intercommunal struggles have been defining the political landscape, are used to illustrate and refine the more general arguments found in the literature about ethno-national conflicts. To illustrate and develop understandings regarding peacemaking and peace agreements in deeply divided places, I use the three cases of Bosnia and Herzegovina, Northern Ireland, and Cyprus, but exclude the Israel–Palestine case, as the notion of political equality and the model of power-sharing have never been included in official negotiations and agreements relating to this conflict. This discrepancy between the first three peace processes and the Israel–Palestine peace process is not surprising, as the first three conflicts were expected to be resolved within one political unit or a “one-state” formula to begin with, while partition to two sovereign states was viewed as the ultimate peace paradigm for Israel–Palestine. Notably, while I mainly use the ethno-national frame, I do not argue that this is the only relevant or useful frame of analysis. This is true mainly

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regarding the Israel–Palestine conflict, which has been increasingly analyzed through the settler colonial frame (Hillal, 2015; Busbridge, 2018; Khalidi, 2020; Mamdani, 2020) and apartheid (Yiftachel, 2005, 2006; Zreik, 2004; Zreik & Dakwar, 2020). While these other frames offer valuable and useful insights, I choose to focus here on the ethno-national frame. First, the scholarship on nationalism and ethnic conflict provides rich and diverse empirical and theoretical accounts. Second, this is a central frame through which the local constituencies perceive and talk about these situations. Third, central characteristics of analysis – political exclusion, struggle over territory and other resources, and more generally the struggle to maintain or fight against domination of one group over the other(s) – are common to all these frames. I therefore do not see these alternative frames as negating each other, but rather as complementary, highlighting different elements. Last, the national frame offers a crucial aspect that is lacking from existing accounts of settler colonialism and decolonization accounts (Busbridge, 2018; Bashir & Busbridge, 2019), and the way in which the discussion is built here aims to add to this evolving discussion. 1.9  BOOK OUTLINE: CASE STUDIES, CHAPTER OVERVIEW

1.9.1  Collective Equality: Political Justice for Deeply Divided Places This is a book about a new conception of justice and a new interpretation of international law that is more suitable for peacemaking and for promoting justice in ethno-nationally divided places. These new conceptions are needed since customary conceptions of justice and prevailing human rights laws are shown to be ill fitted to situations of ethno-national conflicts. Indeed, the justice conceptions and the legal norms that shape our judgments – about actors’ legitimate status, their actions, the peace deals they reach, and the constitutional arrangements they set – vary greatly. Nevertheless, they share similar assumptions and support each other in creating a moral and legal picture of a bounded liberal state that maintains peaceful relations with its neighboring independent sovereign states. But while this picture may, perhaps, fit “true” nation-states, or peaceful multinational states, it is unfit for deeply divided places, where existential fear and violence still shape and dominate politics. Aiming to address this theoretical and legal shortcoming, this book offers a new picture, a new story, about justice and law that is more suitable to unsettled multinational places, where geographic boundaries and national loyalties do not coincide. Combining theoretical exploration and comparative analysis of four conflicts – the Israeli–Palestinian conflict, Bosnia and Herzegovina, Northern

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Ireland, and Cyprus – the book explores the limitations of the two primary solutions to such conflicts: territorial partitions (external self-determination), and the enforcement of human rights obligations within states (internal selfdetermination). While territorial partitions are found to be a limited solution to ethno-national conflicts, unable to produce “true” nation-states, human rights are revealed as unable to remedy the structural inequalities prevalent in situations of group conflicts, and to successfully manage the ethno-national heterogeneity of deeply divided places. The book then depicts the rise of power-sharing democracy as a tool for ending group-based conflicts and governing deeply divided places, as the background for exploring the problem underneath this book: the hurdles imposed on the use of power-sharing democracy by prevailing justice conceptions and human rights law. The ECtHR rulings regarding Bosnia and Herzegovina’s constitution in the case of Sejdić and Finci v. Bosnia & Herzegovina and subsequent cases is brought to bear to illustrate these hurdles and expose the ways in which this conceptual and legal problem disrupts peace and justice. The court judgment illustrates the underlying “legitimacy deficit” of powersharing democracy, while confirming majoritarian democracy as the “proper” model of democracy. These underlying assumptions are not coincidental, as they are tightly connected to the wider unresolved tension between liberal conceptions of justice (i.e., liberal democracy and human rights) and ethnic nationalism (ethno-nationalism). Building on these understandings, the book argues that the customary liberal perceptions and the relevant international law norms are inadequate and may even prove detrimental, as they fail to promote justice and peace when applied to deeply divided places. As current accounts of liberal justice are theorized and designed for established nationstates, it should not be surprising that their assumptions and guidelines are not tuned to the circumstances of ethno-national conflicts. Consequently, they fail to fulfill a central task – offering a normative yardstick to distinguish between legitimate claims for justice and illegitimate self-interested claims to power. In response to these shortcomings, the book offers the idea of collective equality as a new prism for conceptualizing justice and the promotion of justice in places of ethno-national conflicts. To develop the concept of collective equality, the study utilizes the lenses of political justice, pragmatic political considerations, and international law, and promotes three central propositions. The first proposition holds that promoting equality between ethno-national groups should be adopted as a core rationale underlying more just peace processes in situations of ethno-national conflict. The second proposition holds that promoting collective equality is justified also as it is more

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likely to advance successful peace processes. The third proposition holds that collective equality can also enable a more adequate reading of the right to selfdetermination and subsequently make international law more apt to regulate ethno-national peacemaking. 1.9.2  The Four Locales of Ethno-national Conflict The four places that accompany the exploration in this book – Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine – present four locales of ethno-national conflicts. While these four cases provide a wide spectrum of background circumstances, peace processes, and peace agreements, they have several substantive parameters in common. First, all four involve religious, cultural, linguistic, and historical elements that shape the way in which ethnicity and nationalism have been at work in these places. Second, all four were, or still are, perceived by members of the involved communities as unsolvable, and widely regarded by scholars as intractable. Third, in all four conflicts territorial partition or liberal democracy or both have been used, or have been attempted. Fourth, in the three conflicts of Bosnia and Herzegovina, Northern Ireland, and Cyprus, different power-sharing arrangements were adopted (or it was suggested should be adopted) as part of the peace agreement. In the cases of Bosnia and Herzegovina and Northern Ireland, peace agreements based on power-sharing between the ex-rival groups have proven to be relatively durable; in Cyprus, power-sharing was the basis for the original Cypriot constitution and is the suggested institutional model throughout the peace process. In Israel– Palestine, following a prolonged deadlock in the peace process based on the “traditional two-state solution,” power-sharing – in one binational state or in two states united in a confederation – is also increasingly offered as a preferred new paradigm for peace (Bashir, 2016; Zeedani, 2014; O’Leary, 2016; Rahman, 2020; A Land for All, 2020; Beilin & Husseini, 2022). 1.9.2.1  Bosnia and Herzegovina

Bosnia and Herzegovina had been the most ethnically mixed republic of former Yugoslavia, but a brutal war, fought between the three ethno-national groups of the country, had changed the prewar interethnic mixture. During the war, which lasted for three-and-a-half years, about 100,000 people (soldiers and civilians) died, and more than 2.2 million were displaced. Despite much skepticism at the time, the Dayton Peace Agreement, signed by the Republic of Bosnia and Herzegovina, Croatia, and Yugoslavia at the end of 1995, succeeded in ending the war.

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The violence was initiated by the radical leaders of the Bosnian Serbs as a response to Bosnia and Herzegovina’s declaration of independence that took place in May 1992. The declaration was promulgated by the leaders of the Bosniak and Bosnian Croat political parties – the Bosniak Party for Democratic Action (SDA) and the Croatian Democratic Union of Bosnia and Herzegovina (HDZ-BiH) – despite the clear objection of the Bosnian Serbs (comprising a third of Bosnia and Herzegovina’s population). For Bosnian Serbs and Bosnian Croats, the driving logic of the war was the creation of mono-ethnic territories for their ethnic group. This goal was pursued through mass expulsions, labeled as the infamous “ethnic cleansing” that became a characteristic of that war. In contrast, the goal of the Bosnian government controlled by Bosniaks – the largest ethno-national group in Bosnia and Herzegovina (estimated around 44 percent at the time) – was the preservation of the territorial integrity of Bosnia and Herzegovina (Kaldor, 2013, 35). Even though most of the population of Bosnia and Herzegovina was secular, religion was and still is the clearest marker of distinction between the three groups (Kaldor, 2013, 34). Bosniaks are Bosnian Muslims, Serbs are Christian Orthodox, and the Croats are Roman Catholics. As the population is largely secular, religious affiliation is above all a marker for a different ethnic descent. But while the ethnic identity of the people in Bosnia and Herzegovina was, prior to 1992, only one identity among many, during the escalation process of the early 1990s these singular identities transformed into salient ethno-religious identities accompanying and supporting vehement demands for self-determination. 1.9.2.2  Northern Ireland

Northern Ireland, with a population now estimated at about 1.8 million, was created as a separate political entity in 1921. Many see the beginning of the modern violent conflict in Northern Ireland (known as “the Troubles”) in the human rights demonstration that took place on October 5, 1968 in Derry/ Londonderry that evolved into a violent confrontation with the police. But the roots of the conflict lie long before and are connected to the centuriesold conflict and violent struggle by the Irish against British rule of the island. Centuries of oppression by English colonists led at the beginning of the twentieth century to violent rebellion and in 1921 to the partition of the island into the Irish Free State (and later the Republic of Ireland) and Northern Ireland, consisting of six northern counties populated by a Protestant majority, descendants of British settlers, which remained part of the UK. Although it is common to name the two sides in Northern Ireland as Catholics and Protestants, since religion was and still is used as the main

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marker of distinction, it relates to distinguishing British colonists who settled in Northern Ireland during the last few centuries and their descendants from the native Irish population. While the descendants of the British colonists are primarily Protestants, the Irish are primarily Catholic. Hence, in the context of the Northern Ireland conflict, the religious division reflects a distinction between two classes of persons (colonial settlers vs. natives) and between two peoples (Barry, 1975; Clayton, 1998). These two peoples, divided along ethnic lines, hold conflictual aspirations for self-determination: The demand made on behalf of British Protestants is for Northern Ireland to remain part of the UK (unionism), while the demand on behalf of Irish Catholics is for the reunification of the entire island of Ireland (nationalism). Since the selfdetermination demands have been understood and articulated by the two groups as demands for an exclusive state sovereignty, the apprehension of the conflict as a zero-sum-game was inevitable. The Protestants, being the numeric majority in Northern Ireland, conceived Northern Ireland as a “Protestant state for a Protestant people.” Through a majoritarian system of government, the Protestants managed to maintain political dominance and promulgated discriminatory policies, particularly in relation to housing, employment, education, allocation of social services, and culture. Inspired by the human rights struggle led by Martin Luther King in the US during the early 1960s, the Irish Catholic protesters articulated their demands in human rights terms, targeting the discriminatory policies of the local Northern Irish government, and endorsed a commitment to a nonviolent struggle (Secretary of State for Northern Ireland, 1972, part 1, art. 19; Bosi, 2008). But the nonviolent protest twisted into a violent clash with the local Unionistcontrolled police (the Royal Ulster Constabulary, RUC) and quickly escalated to an armed activity involving Irish Catholic paramilitaries, mainly the Irish Republican Army (IRA) and British Protestant paramilitaries, including mainly the Ulster Volunteer Force (UVF) and the Ulster Defense Association (UDA), and soon after led to the deployment of the British army in Northern Ireland. While Irish Republicans pursued the reunification of Ireland through force, the stated goal of Protestant paramilitaries, was to combat Irish Republicanism and particularly the IRA, and to maintain Northern Ireland as part of the UK. During the next 25 years, more than 3,000 people, both civilians and members of the security forces, died, and approximately 30,000 have been officially recorded as injured (Muldoon, 2004; Cairns & Derby, 1998, 756). It was only in 1998, three decades since the breakout of the “troubles” and after many rounds of failed negotiations, that the Good Friday Agreement (also known as the Belfast Agreement) was signed and marked a new phase in the relations between the two ethno-national communities of Northern Ireland.

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1.9.2.3 Cyprus

While the sources of the conflict can go long back, the modern conflict in Cyprus – between the Greek Cypriot community and the Turkish Cypriot community – date from the armed anticolonial struggle of the 1950s. During these formative years, members of the Greek Cypriot community, motivated by Greek nationalism, rebelled against British colonial rule and demanded unification with Greece (enosis) (Michael, 2009, 8). In reaction, the Turkish Cypriots demanded partition of the island or return of the island to Turkey (taksim) (Hadjipavlou, 2007, 352; Loizides, 2007, 175), resulting in conflicting demands for self-determination by the two communities of the island. During the late 1950s Britain initiated peace negotiations and included Greece and Turkey, but excluded meaningful participation of the local – Greek and Turkish Cypriot – communities. The result of these negotiations was a realpolitik compromise: the creation, in 1960, of the independent Republic of Cyprus. Independence was accompanied by two foundational documents: the “Treaty of Guarantee,” according to which Britain, Greece, and Turkey take upon themselves to be the international guarantors of the newly formed republic; and the “Zurich constitution,” according to which Cyprus was formed as a bicommunal presidential republic, using power-sharing arrangements between Greek Cypriots and Turkish Cypriots (Hadjipavlou, 2007, 358). But these power-sharing arrangements, viewed by the Greek Cypriots as an “imposed constitution,” did not hold. In 1963, the Greek Cypriot president, Archbishop Makarios III, announced constitutional amendments that would have fundamentally reduced the power and representation of the Turkish Cypriot community, prompting the Turkish Cypriot members to leave the government, which in turn led to the collapse of the bicommunal Republic of Cyprus. Violent incidents and mass displacement of Turkish Cypriots followed the constitutional crises. Between 1963 and 1974 a third of Turkish Cypriots were pushed to move to separated enclaves. In July 1974, following a coup d’état by Greek officers of the National Guard against the Greek Cypriot President Makarios, Turkey invaded the north of Cyprus, upholding its right to intervene under the Treaty of Guarantee. As attempts at finding a negotiated agreement failed, Turkish forces launched a second invasion, gaining control of 37 percent of the island’s territory. The invasion led to mass displacement of population and resulted in the division of the island between the “Greek side” and the “Turkish side” (Michael, 2009, 48). The following years saw ongoing negotiations to reach a peace agreement between the two sides, and parallel one-sided actions by both: The Turkish Cypriots’ leadership pursued entrenchment of the territorial and political separation, while the Greek

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Cypriots’ leadership pursued a policy of internationalization of the conflict, both through UN resolutions and later through EU accession. The “Annan Plan” – presented in 2004 as a complete peace plan to resolve the conflict – is the only full peace plan to be published and voted upon in an official referendum in Cyprus. But when put to a referendum on both sides, the plan received wide support from Turkish Cypriots, and was rejected by a large majority of the Greek Cypriot voters. Since then, there have been only intermittent attempts to resume the peace talks and the most significant effort, in 2017, failed. 1.9.2.4 Israel–Palestine

Frequently regarded as a paradigmatic, primordial conflict between two ethnoreligious groups with long and entrenched animosity, the Israeli–Palestinian conflict is nevertheless a conflict of modern times over the question of who controls the land of Palestine (or Eretz Israel). The violent conflict between Zionist Jews who settled in Palestine at the beginning of the twentieth century and the local Arab population first erupted in 1920 (some say in 1929). Driven by a national agenda, the Zionist Jews aimed to establish in Palestine their “national home.” The Jewish settlement process dramatically changed the demographic composition of the land, from a Jewish population of less than 10 percent in 1917 (Shlaim, 2001, 7) into two communities with populations around the same scale, mounting at present at about 6.5–7 million Israeli Jews and 6.5–7 million Palestinian Arabs. Palestinians are Arab nationals (both Muslims and Christians) who, until 1947, resided in Palestine, and include anyone born after that date of a Palestinian father, whether inside Palestine or outside. Jews can be regarded as Palestinians, but only if they resided in Palestine before 1917 (considered by Palestinian nationalism as the beginning of the Zionist invasion). Jews are the majority among Israeli citizens, while a significant minority in the state of Israel are Palestinian Arabs. In addition, according to the Israeli Law of Return, every Jew, or a descendant of a Jew up to three generations, can become an Israeli citizen. In 1947 the UN General Assembly adopted the “partition plan for Palestine,” recommending the division of the territory between two nation-states – a Jewish and an Arab state – with an economic union holding between them (UN General Assembly, Resolution 181(II)). The reaction of the two communities to the UN resolution was different. While the Palestinian leadership rejected the resolution, perceived to be unfair, the Zionist leadership – not without controversy – endorsed it. Following the endorsement of the Partition Plan by the UN General Assembly on November 29, 1947, a large-scale violent conflict between Zionist and Palestinian forces erupted. Building on this UN

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resolution the Jewish national movement declared, on May 15, 1948, the establishment of Israel as a new independent state in a part of Mandatory Palestine. The declaration was objected to by the local Palestinian population and by the neighboring Arab states, which, at this point, joined the local Palestinian forces. War followed the declaration and resulted in mass displacement of the population, mainly Palestinian, and in the division of the former land of Mandatory Palestine between Israel, Jordan (occupying the West Bank), and Egypt (occupying the Gaza Strip). The Palestinian population that remained in the territory of the new state of Israel was granted Israeli citizenship, but was immediately placed under military rule. This military regime continued for 19 years and was removed only in 1966. To this day, the Arab-Palestinian Community in Israel suffers from structural discrimination (Kretzmer, 1990; Ganim, 2001; Jabareen, 2015; Daoud et al., 2018). In 1967, during a war with the neighboring Arab states, Israel conquered all Mandatory Palestine (and more). Apart from areas in East Jerusalem that were annexed to the state of Israel, the rest of the West Bank and Gaza were placed under Israeli military rule. Supported by successive Israeli governments, as of 2022, approximately 700,000 Israeli Jews reside in settlements in the occupied territories (from these, more than 200,000 reside in East Jerusalem and around 490,000 in the remaining West Bank). Following the “First Intifada,” the first Palestinian uprising that started on December 9, 1987, peace negotiations between Israel and the PLO were initiated, resulting in an interim peace agreement (the “Oslo Accords”). A Palestinian Authority, with some civil and security powers, was established in the West Bank and Gaza. In 2000, following Ariel Sharon’s3 provocative visit to the Al-Aqsa Mosque, another round of violent conflict, known as the Second Intifada, erupted. In the following years, the “Separation Barrier” was built, Israel unilaterally removed its settlements and armed forces from the Gaza Strip but continued to place it under siege, and continued with the expansion of the settlement process in the West Bank. In 2011 the state of Palestine applied for UN membership. In 2012 it was granted nonmember observer state status. Sporadic attempts to reignite peace negotiations between the political elites have not yielded a “final” peace agreement, and the Israeli military occupation and violent conflict, at various levels, persist. Despite many particularities and differences, the Israeli–Palestinian conflict, like the three previous cases, is a conflict between ethno-national groups, involving, like the Northern Irish conflict, a conflict between a settler 3

Ariel Sharon was then the leader of the Israeli opposition, and between March 2001 and April 2006 served as Israel’s prime minister.

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community and the native population. The two groups define and distinguish themselves by a language, culture, and history (and for at least one of the groups, a common religion), and develop conflicting demands to self-determination. However, in this case both groups perceive their homeland to include almost identical territory – the whole land of Eretz Israel/Palestine, as maps produced by the national institutions or popularly used depict (Wallach, 2011; Yiftachel, 2021, 28). In that sense the Israeli–Palestinian conflict presents a severe case in which two peoples demand exclusive self-determination in the same territory. 1.9.2.5  Book Outline

In order to develop the thesis as outlined, this book will be divided into three parts. Part I (Chapters 2–4) – “Human Rights and Democracy in Deeply Divided Places” – focuses on distinguishing the phenomenon of ethno-national conflicts and critically evaluating the adequacy of the common political and legal responses to it, conceived along two frames: partition and human rights. Part II (Chapters 5–6) – “Revisiting Assumptions” – revisits taken-for-granted assumptions about rights, democracy, and ethno-nationalism underlying contemporary human rights law. This part traces the rise of power-sharing democracy as a prominent tool of peacemaking and explores human rights objections to this tool via ECtHR rulings on Bosnia and Herzegovina’s constitution. Part III (Chapters 7–9) – “Collective Equality” – introduces the central thesis of this study, developing and justifying “collective equality” first as a new concept required for theorizing justice in deeply divided places, then as a pragmatic peacemaking principle for promoting and sustaining peace, and last as a concept conducive to a new reading of the right to self-determination and to a new way of balancing individual human rights and collective arrangements in deeply divided places. Chapter 2 starts with an overview of the modern phenomena of ethnicity, nationalism, and ethno-national conflicts, and about the probable causes and background conditions that provide fertile ground for their outbreak, as these understandings are essential for evaluating the prevailing theoretical assumptions about justice and democracy in places of ethno-national conflicts. To deepen the understanding of the sociology of ethno-national conflicts, the chapter introduces the four conflicts of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine. The chapter singles out political exclusion, the struggle over public goods of the nation-state, and group inequalities along ethno-national lines as leading factors that explain the outbreak of violent conflicts. Chapter 3 explores the “intuitive” solution of partition, legally defined as external self-determination. The partitioning of a territory into separate

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political units is commonly perceived as a favorable solution to ethno-national/ self-determination conflicts. While the creation of a new nation-state is the “classic” national goal, some scholars also advocate it as the only practical solution in special cases involving intractable ethno-national conflicts, or in severe and unremedied human rights violations (remedial secession). This chapter explores to what extent external self-determination does indeed offer a viable solution in real-world conditions that commonly involve multinational states or disputed lands. It includes practical, moral, and legal considerations and draws on the history of the four conflicts compared herein. The central conclusion of the chapter is that partition does not usually eliminate the ethno-national diversity in the newly established states, that subsequently, in most cases, partition alone cannot be assumed to solve ethno-national conflicts, and that additional measures are needed to properly accommodate the ethno-national diversity. Chapter 4 follows on the premise that the task of peacemaking in ethnonational conflicts includes securing continued mutual coexistence between members of the rival ethno-national groups. The chapter questions whether liberal democracy with human rights protections – the widely accepted normative solution to the peaceful accommodation of diversity – offers a suitable framework in deeply divided places. By reviewing several foundational elements of liberal theories, the chapter explores the limits of both traditional liberalism and liberal multiculturalism in accommodating national diversity in situations of ethno-national conflicts. It suggests that “liberal nationalism” may be the most potent approach, but that it ought to be further developed to posit a modified conception of justice attuned to peacemaking in conflict-riven places. Chapter 4’s main argument is that established liberal accounts and international human rights and minority rights law do not provide a genuine remedy for the kind of inequalities and political exclusion prevalent in deeply divided places, and do not offer an adequate framework for a peaceful transition from ethno-national conflicts to more just and stable societies. Against the background of the limited success of liberal democracy and human rights in securing political inclusion and equal treatment for all, Chapters 5 and 6 revisit assumptions about what the democratic state and a proper democratic system look like. Chapter 5 describes and explains the rise of power-sharing, a different model of a democratic system than majoritarian democracy, as a potent tool of peacemaking. The chapter evaluates the primary reasons given to support the claim that power-sharing arrangements offer a more suitable model of democracy in deeply divided places and engages with central critiques of its use. Through the application of power-sharing in Cyprus, Bosnia and Herzegovina, and Northern Ireland, the chapter provides

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illustrations of how, why, and which power-sharing arrangements are used in deeply divided places. In Chapter 6, the violation of the basic principle of equality and nondiscrimination by power-sharing arrangements is discussed, through an examination of the ECtHR case law with regard to Bosnia and Herzegovina’s constitutional arrangements. Chapter 6’s main argument is that the fundamental flaw of the legal assessment, shared by both the court and its critics, is the view of ethnic power-sharing as a prima facie illegitimate system of governance, while disregarding the possible unsuitability of majoritarian democracy to deeply divided places. Chapters 7–9 develop the idea of “collective equality” through three interconnected propositions, each presented in a separate chapter. Chapter 7 advances the proposition that collective equality provides a conception of justice suitable for places riven by ethno-national conflicts, and offers a new context for evaluating the legitimacy and legality of the policies and courses of action that are taken in such places. The chapter argues that by acknowledging the unique position of ethno-national groups in sites of conflict and by adopting the idea of social cooperation as applicable to relations between ethno-national groups, we can address two insufficiencies in existing accounts of group rights – the place and role of majorities, and the reciprocal obligations of both minorities and majorities by positioning them as equals in principle. Building on published empirical research and examples from Northern Ireland, Bosnia and Herzegovina, and Cyprus, Chapter 8 shows why endorsing the principle of collective equality should be regarded as realistic – a realistic utopia – and advisable from a pragmatic point of view, supporting the prediction that equality characterizes the kind of relations to which self-respecting national groups can agree. The chapter also explores different ways in which the four dimensions of collective equality – including equality in redistribution, representation, recognition, and negotiations – have been implemented (or not) in the three cases compared here. The cases demonstrate both the difficulties of endorsing the criteria of equality and the significant role it plays in the discourse about peace. Finally, Chapter 9 advances the third proposition that collective equality can also support a reading of the international right to self-determination, which is more suitable to situations of ethno-national conflict and to the contemporary task of international law, of regulating ethno-national peacemaking. The chapter argues that collective equality supports a nuanced understanding of the right to self-determination that can be balanced with other legitimate interests of states – adding to the move of turning self-determination from a

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“legal bomb” (an unconditional right to secession) into a legal right, much more resembling other human rights. Chapter 10, the conclusion of the book, summarizes the main findings and demonstrates their applicability to the Israeli–Palestinian conflict. While I have made every effort to be objective, I cannot claim to be neutral. My involvement and interest in the role of law in promoting just and sustainable peace in places of ethno-national conflicts are tightly connected to my own background and motivated by a personal commitment and concern. As an Israeli citizen I hold the advancement of the cause of peace and justice in the ongoing Israeli–Palestinian conflict as crucial to my society and to me personally. My account is guided and informed both by my own personal experiences, understandings, and concerns, and by my aspiration to live in a more just society more broadly. My initial choice to focus on the role of equality, and the lack thereof, in conflicts and peace processes comes from the fundamental role that equality plays in our current social world, moral beliefs, and legal systems, and from my own experience of the severe inequalities between Israeli Jews and Palestinian Arabs and the grave implications they bear in our contested land. But the final choice to focus on the role of intergroup equality in conflict and peace and on the way it is regulated by law is based on the extensive research underlying this book. While theoretical and comparative examinations support the significance of equality in such contexts and provide a rich understanding of how equality should be understood in the context of group conflicts and related peace processes, it is surprisingly lacking a systematic normative and legal engagement with it. This book is an attempt to address this gap.

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human rights and democracy in deeply divided places

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2 The Politics of Ethno-national Conflicts

To capture what justice means and what promoting justice requires in the context of ethno-national conflicts, we must first be clear about the phenomena of ethno-nationalism and ethno-national conflicts, and about the probable causes and background conditions that provide fertile ground for their outbreak. It might seem a superfluous stage in the analysis, as ethno-nationalism and ethno-national conflicts are something we all know and may even have personal experience with. But contemporary scholarship provides a wealth of knowledge about them, as well as about the possibilities for their transformation. These understandings, further explored in this chapter, support the need to reexamine theoretical assumptions about justice, democracy, and their complex relationship with ethno-nationalism in deeply divided places. 2.1  ETHNICITY, NATIONALISM, AND MODERN POLITICS

Ethnicity and nationalism, as we have already acknowledged, are modern formations. They represent the subjective experience that binds large groups of people together based on their belief in a common ancestry and shared culture (Weber, 1978, 385–398). In that sense they have been assumed, by early and contemporary writers on democracy, as a vital condition for the functioning of liberal institutions (Mill, 1861, ch. 16; cf. Rawls, 2001b, 23). Liberal democracy embodies an inherent tension, often unacknowledged, between universalism and particularism. For such a system of government to be constituted and maintained, the universal liberal principles need to be accompanied by beliefs about the uniqueness of the specific society and by wide public consensus to be under the same government, a consensus that can also support actions for social justice (mainly, redistribution through the public provision of services). As a historical fact, nationalism has played that role for liberal democratic societies (Beetham, 1994; Miller, 1995; Mouffe, 43

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1997;  Wimmer, 2002; 2018). But while these understandings were acknowledged by early writers, they have disappeared from mainstream contemporary accounts of democratization. Embedded in the naturalness that accompanies the lived experience of ethnic identities, popular views tend to see ethno-national conflicts as inevitable and unsolvable, driven by ancient ethnic hatreds or irrational religious feelings. Despite the organic way most people experience their ethnic and national identities, research on ethnicity shows their constructed nature and emphasizes that they rest on an ongoing process of making and remaking of ethnic identities, guided by its functioning vis-à-vis the politics of the nationstate (Eller, 1997; 1999; Eriksen, 2002; Wimmer, 2008a; 2013b; Brubaker, 2009, 29). Political leaders, the media, the education system, and many other daily experiences all take part in these processes (Billing, 1995; Brubaker, 2009, 34). An important observation relates to the role of political exclusion. Exclusion from state politics, deprivation, and discrimination are found to be the most common “fuel” for hardening ethnic boundaries (Wimmer, 2008a; 2013a; 2013b). Ethno-national conflicts (like ethnic nationalism more generally) are also understood as a modern political phenomenon. A leading explanation views such conflicts as an undesired effect of the modern nation-state framework, with its three central pillars of democracy, citizenship, and popular sovereignty (Wimmer, 2002; Mann, 2005). But, realizing that ethnic identities are politically constructed and constantly reshaped does not mean that they are entirely fluid, or can be “reimagined,” in a misinterpretation of Benedict Anderson’s main thesis. In places of ethnic conflict, ethnic identities tend to heighten and take precedence over other personal preferences and worldviews (Ashmore et al., 2001; Bar-Tal, 2007b, 1443). Likewise, understanding the “political logic” behind ethno-national conflicts does not translate into simple strategies for resolving them. Yet, the knowledge gained by understanding these sources of identity construction and reinforcement can assist in identifying those courses of action and policies that are more feasible and effective vis-à-vis salient ethnic identities, high ethnic boundaries, and longlasting ethno-national conflicts. The foundational characteristics of places riven by ethno-national conflicts (also referred to here as deeply divided places) is the incongruity between the ethno-national boundaries and territorial-statist borders and conflicting selfdetermination demands over the same territory. Notably, this incongruity is a problem from both national and liberal perspectives. The national aspiration is for the nation – a political community defined by ethnic attributes – to have a state of its “own”; that is, that the territorial-statist borders will correspond with the ethnic boundaries and vice versa (Gellner, 1983, 1; Weber, 2013, 176;

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Connor, 1978, 383; Hobsbawm, 1992, 19). For example, British Protestants in Northern Ireland aspire(d) for Northern Ireland to be a Protestant state for a Protestant people, while Irish Catholics aspire(d) for Northern Ireland to be part of their Irish Catholic state. At the same time, theories of liberal justice assume and require congruence between the territorially bounded population of a country and the nation. In other words, liberalism demands that the nation’s boundaries and the ethical commitments to fellow conationals will correspond with the state’s territorial borders. The problem is that territorial borders are often arbitrary (cf. Rawls, 2001b, 38–39). Yet, liberalism (and international law) expects the arbitrarily, territorially defined population to act as a nation, a civic nation. In other words, while the territorial borders are often arbitrary, they are expected to produce a community of citizens “united among themselves by common sympathies, which do not exist between them and any others – which make them ­cooperate with each other more willingly than with other people, desire to be under the same government, and desire that it should be government by themselves, or a portion of themselves, exclusively.” (Mill, 1861, ch. XVI). Contemporary understandings reinstate the need for some kind of unity among citizens as vital to the successful implementation of liberal democratic institutions (Beetham, 1994, 169; Miller, 1995a; Wimmer, 2013, 179; 2018). Despite the vitality of such a collective unity, it is often taken for granted by the theoretical framework, without clearly noticing it. For example, according to the dominant liberal-legal conception, the population of the independent state of Bosnia and Herzegovina – defined by arbitrary territorial borders – is expected to desire to be under the same government, and to act with social solidarity and ­cooperate more willingly than with other people. Upholding these liberal-legal conceptions despite the misfit between the ethnic nation and the territorially bounded population assumes radical social and political transformation: from a multinational landscape to a civically defined society that exhibits significant social solidarity among its members. Implied in these hegemonic theories is an assumption that such a transformation is not only desirable, but also possible and obtainable through permissible policies and actions. Despite the consensus among researchers of ethnicity about the constructed nature of ethnic and national identities, contemporary research shows that redrawing national boundaries – that is, redrawing the national divide itself – is unlikely in the short- or medium-term time frame (Wimmer, 2013a; 2013b, 204; 2018; Kymlicka, 1995; Nagle, 2009; Hughes, 2014) and can realistically be aspired to only in the long term, measured in generations (Wimmer, 2018). In other words, when a national divide splits the population of a place into two or more national or political communities, unmaking the divide itself

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is unlikely. Put more simply, national identities do not vanish. The unlikelihood increases as we consider impermissible many national homogenization processes that have been used in the past, particularly forced assimilation, population transfers, or worse (Mann, 2005; Wimmer, 2002; 2013a). Although the divide itself is unlikely to be unmade in places of active conflict, other strategies of boundary work are possible. These include, for example, transvaluation – changing the hierarchical order between the groups by equalization; nation-building – in the meaning of building national ties, at the international or state level,1 where members of the conflicting ethno-national groups can become part of an overarching, additional, political community; and blurring – by emphasizing other divisions such as local, civilizational, or universal (Wimmer, 2008b). Adopting a theoretical assumption that common citizenship, by its moral logic, can and should recreate the population as one, united, political community, while erasing prior political loyalties according to ethno-national identities, does not seem to have a basis in empirical reality, and imposes an unrealistic ideal of justice (as opposed to a realistic utopia, cf. Rawls, 2001a). Therefore, we must adopt a more accurate basis for theorizing justice in deeply divided places, based on realistic assumptions about our social world. The new theoretical basis, as suggested by the collective equality account, should accommodate political communities defined along ethnic affiliation, and not only along statist-territorial borders. Such a theoretical framework, I argue, is essential if we aim to support possible and effective ways of peaceful transformation that do not rely on the eradication of the previous ethnonational identities. 2.2  FOUR LOCALES OF ETHNO-NATIONAL CONFLICTS: POLITICAL INTERESTS IN THE MODERN NATION-STATE

The scholarship on ethno-nationalism, ethnic conflicts, and peace-building includes the analysis of large datasets and large-N research as well as case studies from diverse places around the world. Familiarity with concrete cases is indispensable for developing our understandings and testing them. Thus, for advancing the arguments presented in this book, and to ground them with real and concrete circumstances, I chose to focus on the four locales of Bosnia 1

For the way nation-building is understood here, which is very different for how this concept has been understood by the liberal peace-building approach in which nation-building was mainly equated with democratization and building state institutions, see Wimmer, 2018a; 2018b.

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and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine. These four cases are ethno-national conflicts, with roots that may go back centuries but exhibit a dramatic shift during the twentieth century, when nationalism and the modern nation-state arrive in the area. The following sections include a short introduction to these places and to the local evolution of ethnic nationalism and ethno-national conflict in each of them. The four cases of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine provide vivid illustrations of the central observations presented in this book about ethno-nationalism and the emergence of ethnonational conflicts; about the advantages and limitations of partition and liberal democracy; about the strategic choice to adopt power-sharing arrangements as the more suitable political framework for deeply divided places that cannot or should not be completely divided along territorial lines; and of the tensions between these arrangements and human rights obligations. Furthermore, and most importantly, these cases provide useful illustrations of collective equality being a realistic ideal; that is, an implied principle that already plays a role in peace processes and one that is conducive to the promotion of peace in deeply divided places. 2.2.1  Bosnia and Herzegovina With a population now estimated at 3.8 million,2 Bosnia and Herzegovina was established as an independent state in 1992 during the disintegration process of Yugoslavia. During the war that erupted in Bosnia and Herzegovina on April 6, 1992 and lasted for three and a half years until October 12, 1995, about 100,000 people (soldiers and civilians) died, with an estimated 2.2 million displaced from their homes (McCrudden & O’Leary, 2013a, 22; Bose, 2017, 190). Only after extensive international intervention and several failed peacemaking attempts did the Republic of Bosnia and Herzegovina, Croatia, and Yugoslavia sign the Dayton Accord to end the war. When the first democratic elections took place in November 1990, Bosnia and Herzegovina was the most ethnically mixed republic of the former Yugoslavia. Bosniaks (Bosnian Muslims; 43.7 percent), Serbs (31.4 percent), and Croats (17.3 percent) made up the primary ethnic groups, with the remaining made up of Yugoslavs, Jews, Roma, and people who rejected ethnic or national classifications (8 percent) (Kaldor, 2013, 34–35; Bose, 2007, 107). Despite being considered a “mini-Yugoslavia” (Bose, 2007, 121) and 2

The World Factbook, Bosnia and Herzegovina, CIA, www.cia.gov/the-world-factbook/ countries/bosnia-and-herzegovina/#people-and-society (last visited November 15, 2022).

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widespread popular resistance against political parties defined in ethnic terms participating in the elections, these parties received over 70 percent of the votes and controlled the National Assembly: the SDA (Party for Democratic Action), a Muslim nationalist party, the SDS (Serbian Democratic Party), and the HDZ-BiH (the Croatian Democratic Party of Bosnia and Herzegovina) (Kaldor, 2013, 35). Although Bosnia and Herzegovina’s population was secular, religion was (and still is) the clearest marker of distinction between the ethno-national groups (Kaldor, 2013, 34): Bosniaks are Bosnian Muslims, Serbs are Christian Orthodox, and Croats are Roman Catholics. Following Slovenia and Croatia’s declaration of sovereignty that initiated the Yugoslav disintegration process, Bosnia and Herzegovina declared independence in November 1992. The declaration was pursued by Bosniaks and Bosnian Croats, but was bitterly protested by Bosnian Serbs. Viewing the SDA and HDZ-BiH as ganging up against them, Serb parliamentarians objected to a majority vote deciding Bosnia and Herzegovina’s fate, in violation of the local political tradition of equality and consensus among groups (Bose, 2007, 123). In response to the declaration, radical Bosnian Serb leaders initiated what became the most violent conflict in Europe since World War II. Backed by Serbia, which was holding and controlling the Yugoslav union, the Serb leaders pursued two main objectives: to create an independent Serb Republic by force, together with maintaining Bosnia and Herzegovina (entirely or mostly) within the Serb-dominated remains of Yugoslavia (McCrudden & O’Leary, 2013a). Bosnian Croat nationalist leaders had a comparable political goal: to establish an ethnically homogenous territory. Both groups aimed to divide the ethnically mixed Bosnia and Herzegovina into Serbian and Croatian parts that would eventually join Serbia and Croatia, respectively. The Bosniak-led Bosnian government contrastingly aimed to preserve Bosnia and Herzegovina’s territorial integrity (Kaldor, 2012, 35). The driving logic of the war – for Bosnian Serbs and Croats – was to create mono-ethnic territories. This goal was pursued through mass expulsions that were infamously labeled “ethnic cleansing” (Bose, 2017, 190). This ethnic cleansing was defined as follows: a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas. To a large extent, it is carried out in the name of misguided nationalism, historic grievances and a powerful driving sense of revenge. This purpose appears to be the occupation of territory to the exclusion of the purged group or groups. (Final Report of the Commission of Experts, 1994)

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This ethnic cleansing strategy eventually caused the population to segregate into separate areas that remain to this day, despite much effort to reverse the situation (Bose, 2017, 190–191; Long, 2013, 111–114).3 Prior to 1992, ethnic identity was only one identity among many. At the same time, the political significance of that ethnic identity was acknowledged within the predemocratic, Yugoslav framework – within formal and informal constitutional arrangements (for example, the 1974 Yugoslav socialist constitution and the ethnic key, see Gagnon, 2006, 73; Mujkić, 2008, 119–120). Within these broader interethnic arrangements for Yugoslavia, Bosnia and Herzegovina was the most ethnically mixed republic. However, during the escalation process in the early 1990s, the singular ethno-national identities took precedence over all others. As Bosnia and Herzegovina transformed into an independent democratic state, the peaceful relations among citizens with different ethno-religious affiliation during socialist times dramatically changed. What emerged were salient ethno-religious identities and vehement demands for separate self-determination, which swept across much of the population in the country. The conflict in Bosnia and Herzegovina was therefore fought between three cohabiting ethno-national groups that were distinct from each other by religious affiliation and a belief in a different ethnic descent. 2.2.2  Northern Ireland With a population now estimated at about 1.8 million, Northern Ireland was created as a separate political entity from Ireland and the UK in 1921. The modern violent conflict in Northern Ireland, known as the “Troubles,” was sparked by a human rights demonstration that took place on October 5, 1968 in Derry/Londonderry that evolved into a violent confrontation with the police. But the roots of the conflict go much further back and are connected to the long history of conflict and violent struggle by the Irish against British rule in Ireland (O’Leary & McGarry, 2012; Clayton, 2014). Centuries of oppression by English colonists, in particular the “plantation of Ulster” (a British policy-driven settlement in the Irish island, and in Ulster in particular) in the 3

Promotion of “minority returns,” i.e., the return of expellees to their original homes, has been a top objective of the international supervisory regime of Bosnia and Herzegovina after the Dayton peace agreement. Yet the many efforts have not succeeded in reversing the effects of the ethnic cleansing that took place during the war, and the vast majority of Bosnia and Herzegovina’s people live today in ethnically homogenous, or nearly homogeneous, areas (Bose, 2017, 190–191). Republica Serpska, for example, has become 81.5 percent Serb (according to the 2013 census), as opposed to 55.5 percent Serb according to the 1991 census, while Serbs have become only a negligible minority in the territories of the Bosniak–Croat entity.

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seventeenth century, led to the Irish rebellion of the early twentieth century, culminating in the Treaty of 1921 that partitioned the island. One part – consisting of 26 counties of the south mainly populated by Catholics – became the Irish Free State (later the Republic of Ireland). The second part – consisting of six northern counties populated by a Protestant majority, descendants of British settlers – remained part of the UK and became known as Northern Ireland. For the remaining Irish Catholics in the north, the Treaty of 1921 is when they were “sold out” by the Irish leadership who agreed to the country’s partition (Monaghan & Prideaux, 2016, 173). Although it is common to name the two sides in the Northern Irish conflict as Catholic and Protestant, since religion was and still is used as the main marker of distinction, the divide is in fact between British colonists who settled in Northern Ireland and their descendants from the native Irish population. While the British colonists’ descendants are primarily Protestant, the Irish are primarily Catholic. Hence, in the context of the Northern Irish conflict the religious division reflects a distinction between two classes of persons (colonial settlers vs. natives) and between two peoples (Barry, 1975; Clayton, 2014). These two peoples, divided along ethnic lines, hold conflicting aspirations for self-determination: British Protestant representatives demand that Northern Ireland retain the union with the UK (hence “Unionists”), while Irish Catholic representatives demand the reintegration of the entire island of Ireland (“Nationalists”). Following the 1921 partition, Northern Ireland became one of the constituent states of the UK, with a relatively wide set of powers devolved to the local government and a parliament sitting in Stormont. Between 1925 and the early 1970s, British Protestants, the numerical majority in Northern Ireland, maintained political dominance. During this period, the political “Unionist” leadership promulgated discriminatory policies, particularly in relation to housing, employment, education, allocation of social services, and culture, and manipulated local government electoral boundaries in some areas that produced wholly artificial results (Cairns & Darby, 1998, 755; O’Leary, 2018; Secretary of State for Northern Ireland, 1972). The Troubles started as a human rights protest. Inspired by the human rights struggle led by Martin Luther King in the USA in the early 1960s, the Irish Catholic protesters articulated their demands in human rights terms, targeting the Stormont government’s discriminatory policies and endorsing a commitment to nonviolent struggle (Secretary of State for Northern Ireland, 1972, part 1, art. 19; Bosi, 2008). The civil rights, nonviolent protest shifted into a violent clash with the local Unionist-controlled police – the RUC – and quickly escalated in August 1969 to “widespread inter-communal disorders

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at a number of places in Northern Ireland” (Secretary of State for Northern Ireland, 1972, part 1, art. 20). The escalation ignited armed activity from Irish Catholics and British Protestants, and soon after led to the deployment of the British army in Northern Ireland. Northern Ireland’s Irish Catholic population, many of whom supported an all-island Irish state, was divided as to how this integration could and should come about. Irish Nationalists pursued Northern Ireland’s integration through political means, but Irish Republicans, supporters of the Irish paramilitary group the IRA, believed that Ireland’s reunification could only be obtained by force. Among the British Protestants who supported the union with the UK, there were also those who supported paramilitary action. The UVF and the UDA were among the main paramilitary groups hailing from the Protestant side. Their stated goal was to combat Irish Republicanism, particularly the IRA, and to maintain Northern Ireland as part of the UK. August 1971 to early 1972 was marked by a worsening of the security situation in Northern Ireland. Following the internment of Irish Catholics in August 1971 and Bloody Sunday in January 1972,4 Stormont was suspended and “direct rule” was introduced, removing power from the local Protestant Unionists and giving it to the British government at Westminster in London. The worsening political and security situation brought dramatic changes to the human landscape of Northern Ireland: sectarian violence, enhanced by deliberate intimidation, led to forced migration from mixed neighborhoods inhabited by Protestants and Catholics, particularly during the early 1970s, leading in turn to greater residential segregation (Cairns, 1998, 757; Doherty & Poole, 1997). Notably, the residential segregation induced by the sectarian violence has remained, and was even reinforced in the following decades (Nagle, 2009; Hughes, 2014). The worsening of the political and security situation during 1972 and 1973 led the British government to initiate a series of consultations and negotiations. These consultations led to significant constitutional reform in Northern Ireland, creating a power-sharing government and an agreement to establish the “Council of Ireland,” made up of an executive council of 14 ministers (7 from Dublin and 7 from Northern Ireland), and 4

The infamous Bloody Sunday, one of the key events of the Troubles, occurred on January 30, 1972. In this incident 13 men were killed and another fatally wounded, when soldiers from the British Army opened fire at the end of a civil rights march in Derry/Londonderry. The march had generally been peaceful until the end, when some of the marchers attempted to climb over a street barrier and youths threw stones and iron bars at the soldiers. The question of whether the soldiers opened fire first or were fired upon (or believed they were being fired upon) by republican gunmen remains a source of great controversy (Gillespie, 2008, 37–38). Only on March 14, 2019, after long years of investigation, was it decided that one British paratrooper is to be charged in connection with the killings that occurred on Bloody Sunday.

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a Consultative Assembly that would consist of 60 members (30/30). These new political arrangements allowed Irish Catholics to share the powers of government in Northern Ireland for the first time, and to recognize the Irish ties across the island. However, the agreement and the power-sharing government did not hold for long and collapsed under the pressure of Unionist objection after only a few months. Over the next 25 years, an infamous and ongoing stream of bombings, shooting attacks, and kidnappings led to more than 3,000 people being killed – civilians, members of paramilitary groups, and members of the security forces – and approximately 30,000 have been officially recorded as injured (Muldoon, 2004; Cairns, 1998, 756). In 1998, three decades after the Troubles began and with many rounds of failed negotiations, the Good Friday Agreement (GFA) was signed. An unorthodox approach, the peace agreement was negotiated and signed by multiple parties and included the British and Irish governments and eight political parties or groupings from Northern Ireland. These eight parties included the Ulster Unionist Party, the Social Democratic and Labour Party (SDLP), Sinn Féin, the Alliance Party, the Progressive Unionist Party, the Northern Ireland Women’s Coalition, the Ulster Democratic Party, and the Labour Party. Although the Democratic Unionist Party (DUP), the more radical Unionist Party, has not been party to the agreement, and although it took nine more years for the formation of a new Northern Ireland executive, the GFA signaled a new phase in relations between the two ethno-national communities in Northern Ireland. 2.2.3 Cyprus Unlike the Bosnia and Herzegovina and Northern Ireland cases, peace negotiations in Cyprus between Greek Cypriots (Christian Orthodox) and Turkish Cypriots (Muslims) have continued intermittently since 1964, driven by international peace efforts. Despite the extended processes, these talks have not yet yielded a peace agreement. Following the first years of Cyprus’ independence, particularly in 1963–1964 and then in 1974, the conflict involved mass intercommunal violence (1963–1964) and a massive military invasion, following the attempted coup in 1974. However, over the subsequent five decades the island of Cyprus has not been a site of serious political violence and is therefore regarded by many as a frozen conflict and labeled the “Cyprus problem.” The modern history of Cyprus starts in 1960 with its independence from the British Empire. Unlike iconic liberation struggles from foreign colonizers, Cyprus independence was a compromise, not the priority of any of the local communities. The popular demand of Greek Cypriots was a union

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with Greece (enosis), the popular demand of Turkish Cypriots was partition (taksim) and union with Turkey, and most other Cypriots from the smaller minorities preferred the continuation of colonial rule. Cyprus independence was thus “described as a ‘realpolitik compromise,’ a ‘reluctant republic,’ a ‘self-determination substitute,’ an ‘unwanted child,’ a ‘sham’ and other more or less felicitous terms that turned into sound bites and historical clichés” (Constantinou, 2010, 17). As with other protracted conflicts, it is difficult to pinpoint when the conflict started. Some mark the Turkish invasion of 1974 as the beginning, while others point to the constitutional breakdown of 1963 and the resulting ethnic riots of 1963–1964. Some view the original constitution for Cyprus’ independence in 1960 as the original sin; some go further back to the 1821 Greek Revolution against the Ottoman Empire, with others going back all the way to the fall of Constantinople in the fifteenth century (Michael, 2009, 24; Hadjipavlou, 2007, 352). However, the sources of the modern animosity between the Greek Cypriot community and the Turkish Cypriot community go to the armed struggle of the 1950s.5 Members of the Greek Cypriot community in this period sought to incorporate the Greek-speaking regions of the old Ottoman Empire into the modern Greek state. A sense of Greek nationalism encouraged them to rebel against the British colonial rulers and demand enosis – unification with Greece (Michael, 2009, 8), a rebellion that began in 1955. As a reaction to enosis, the Turkish Cypriots demanded taxim – the island’s partition or its return to Turkey (Hadjipavlou, 2007, 352). Allying themselves with the British colonial rulers, seen to be the most powerful and least threatening force (Michael, 2009, 8), the Turkish Cypriots were hired (arguably exploited as part of the colonial power’s “divide and rule” policy) to form an auxiliary police force to fight the Greek members of EOKA, the National Organization of Cypriot Fighters (Hadjipavlou, 2007, 352; Özerk, 2001, 258). Following changes to its strategic interests in Cyprus, and in the face of growing opposition from the local Greek Cypriot population and criticism in the international arena, Britain initiated secret peace negotiations between 1958 and 1960 (James, 1998). The negotiations included Greece and Turkey, but excluded any meaningful participation by the local Greek and Turkish communities (Michael, 2009, 21–23). The negotiations resulted in the creation of an independent, “unwanted” Republic of Cyprus. 5

The identification of the communities as Greek Cypriots and Turkish Cypriots is a later development. During the time of independence, the affiliations were the Greeks of Cyprus and the Turks of Cyprus, respectively.

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Independence was accompanied by two formative documents: the Treaty of Guarantee and the Zurich Constitution. Under the Treaty of Guarantee, Britain, Greece, and Turkey took it upon themselves to be the international guarantors of the newly formed republic. According to the Zurich Constitution, viewed by the Greek Cypriots as an “imposed constitution,” Cyprus was formed as a bicommunal presidential republic (Hadjipavlou, 2007, 358). According to the Cypriot power-sharing structure, the president of the republic would be Greek Cypriot – as Greek Cypriots formed the island’s majority population – and the vice president, with veto powers (including in foreign affairs and security), would be Turkish Cypriot. Other consociational elements included the Council of Ministers, comprising seven Greek Cypriots and three Turkish Cypriots, and the legislative authority, which was composed of 70 percent Greek Cypriots and 30 percent Turkish Cypriots, with some laws demanding separate majorities (Michael, 2009, 25). These constitutional arrangements did not hold. Most Greek Cypriots resented the constitution, and following a series of political deadlocks, in December 1963 the Greek Cypriot President Archbishop Makarios III announced his intention to make constitutional amendments, targeting revision of some of the power-sharing arrangements. Despite assurances given by Makarios that the amendments were only being made to facilitate a smoother working of the constitution, the plans “effectively wiped out Turkish Cypriot political power in the Republic of Cyprus” (Ker-Lindsay, 2004, 23). This announcement led the Turkish Cypriot members to leave the government and the state apparatus and marked the collapse of the bicommunal Republic of Cyprus. From the 1963 departure of the Turkish Cypriots from the state authorities to the present day, the government’s main organs and institutions of the Republic of Cyprus have been fully controlled by the Greek Cypriot community. The 1963 constitutional crisis sparked violent incidents and the mass displacement of Turkish Cypriots into concentrated areas: Between 1963 and 1974, a third of Turkish Cypriots were forced to move into separated enclaves. These developments brought about for the first time a political, social, and demographic separation between the two communities. Between 1964 and 1974, the USA and the UN were unable to achieve a solution to the Cyprus problem. Following a growing rift between Athens and Nicosia, on July 15, 1974 Greek National Guard officers mounted a coup d’état, ousting President Makarios. Five days later, Turkey invaded the north of Cyprus, upholding its right to intervene under the Treaty of Guarantee. The Turkish Army’s advancement was halted as attempts to negotiate an agreement took place. However, the talks collapsed and the Turkish military operation resumed, with Turkey gaining control of a “fair share” of Cypriot

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territory. This Turkish military action – commonly termed by Turkish Cypriots the “peace operation” (Hadjipavlou, 2007, 358) and by Greek Cypriots “the Turkish invasion and occupation” – resulted in 37 percent of the island’s territory being under Turkish control. The invasion led to a mass population displacement and the island being divided between the “Greek side” and the “Turkish side” (Michael, 2009, 48). As the decade leading up to 1974 is understood as a national trauma for the Turkish Cypriots, the 1974 Turkish invasion is considered to be a national trauma for the Greek Cypriots. For many Greek Cypriots, the invasion came as a total surprise and is considered an expression of unexplained and unjustified Turkish aggression. The following years saw ongoing negotiations between the two sides that failed to reach an agreement, as well as mutual unilateral actions. The Greek Cypriots’ leadership pursued an internationalization policy for the conflict, both through UN resolutions and later through European Union (EU) accession. The Turkish Cypriots’ leadership pursued entrenchment of the territorial and political separation by encouraging Turkish citizens to migrate and settle in the north. They declared independence as part of a federated state of Cyprus, and later, in 1983, as an independent state – the Turkish Republic of North Cyprus (TRNC). Until today, Turkey is the only state that recognizes the TRNC as an independent state. The rest of the international community regards it as part of the Republic of Cyprus held as an occupied territory by Turkey. The Cypriot conflict involves two ethno-national groups that define and distinguish themselves by language, culture, and religion, and they articulate their conflicting demands as the right to self-determination: While Greek Cypriots demand reestablishment of the Republic of Cyprus on the entire island, Turkish Cypriots demand their own state on the northern part of the island, or alternatively to be equal partners in a one-state republic. Even though the Cyprus conflict is still unresolved, since 1974 it has been almost entirely a nonviolent conflict. Importantly, contrary to a local history of ethnic coexistence and intermingling, since 1974 the two ethno-national communities have been almost completely segregated and live under two completely separate political regimes. 2.2.4 Israel–Palestine The Israeli–Palestinian conflict is often understood as being between Israel and the Palestinian people, including Palestinians living outside of Israel in the Occupied Palestinian territories and diaspora refugees, but generally not Palestinians living within Israel. However, a more accurate representation is

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of a conflict between Zionist Jews and native Palestinian Arabs (Muslims and Christians), generally over the question of who politically controls the territory of the land of Israel/Palestine. Understood as a conflict between two peoples across the whole area between the Jordan River and the Mediterranean Sea (“Eretz Israel,” the traditional Hebrew term for the land of Israel, and Palestine), the 2020 population in the disputed territory was equally split between the two groups: about 6.5–7 million Israeli Jews and 6.5–7 million Palestinian Arabs.6 Frequently regarded as a paradigmatic, primordial conflict between two ethno-religious groups with a long and entrenched animosity, the Israeli– Palestinian conflict is nevertheless a conflict of modern times, with the beginning of the twentieth century as the accepted political starting point (Cohen, 2015; Bose, 2007, 211–217; Shlaim, 2001, 9–10). The conflict erupted between Zionist Jews who had settled in Palestine and the local Arab population. While Jews had resided for centuries in Palestine alongside the Arab population under the Ottoman Empire, nationalism brought a dramatic change to the cultural composition and political organization of its Jewish and Arab population. Driven by a national agenda, establishing a national home in Palestine/Eretz Israel, Zionists acted to settle the land and create a Jewish nation (conceived as resettling the land and recreating the people). From diverse Jewish communities scattered in different European and Arab countries, who talked different languages and practiced diverse ways of life, Zionism was busy with building the nation. Acting in various ways, it created (at first the European) Jews as a modern nation, and later promoted the assimilation of Jewish immigrants into this newly built nation. The “revival of the Hebrew language” project and establishment of Hebrew as the legitimate common mode of communication among Zionist Jews, along with other cultural and social practices, have played an indispensable role in creating the modern Jewish people. 6

The population of Israel was estimated at 9.45 million as of 2021: 6.98 million Jews (73.9%), around 1.99 million Arabs (including the Palestinians in east Jerusalem) (21.1%), and 0.47 million “others” (5%) (Media announcement, Population of Israel on the Eve of 2022, Central Bureau of Statistics, www.cbs.gov.il/he/mediarelease/pages/2021/‫תייסולכוא‬-‫לארשי‬‫החתפב‬-‫לש‬-‫תנש‬-2022.aspx). Of the Jewish population, around 0.49 million live in the West Bank (Population report, myesha, March 6, 2022, http://myesha.org.il/?CategoryID=335&Articl eID=10249) and over 0.2 million in East Jerusalem. The Palestinian population in the entire territory is estimated at 7 million, including around 5.3 million Palestinians living in the West Bank, Gaza, and East Jerusalem (Awad, 2022). Together with the Arab–Palestinian citizens of Israel, the Palestinian population residing in Israel/Palestine is approximately 7 million. Of the Pjalestinians and Jews living outside Israel/Palestine, there are around 3 million recognized Palestinian refugees living in neighboring Arab states. There are different estimates as to the number of refugees who wish to return (see, e.g., Ronen, 2009).

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The ethnic demarcations between the Jews as a national community and the Arab Palestinians are significant. Article 5 of the Palestinian National Charter defines Palestinians as “those Arab nationals who, until 1947, normally resided in Palestine regardless of whether they were evicted from it or have stayed there. Anyone born, after that date, of a Palestinian father – whether inside Palestine or outside it – is also a Palestinian.” As the definition includes only Muslim and Christian Arabs, a special provision in Article 6 of the Charter defines the status of Jews: “The Jews who had normally resided in Palestine until the beginning of the Zionist invasion [considered to have begun in 1917] will be considered Palestinians” (Ghanim, 2016, 342). According to the Israeli Law of Return, every Jew, or a descendant of a Jew for up to three generations, is entitled to come to Israel and obtain Israeli citizenship. Thus, “the Jewish people,” according to the prominent Jewish national perceptions, includes all the Jews who live in Israel and the territories under its control (i.e., Judea and Samaria, according to official Israeli terminology), and all the Jews in the world.7 Unlike Palestinian nationalism, and unlike most other ethno-nationalistic movements, the Jewish nationality has not emerged as a local ethnic group’s nationalism aiming for self-determination in territories where it was already settled (Gellner, 1983, 101, 106–107). While the Northern Ireland and Cyprus cases also involve a situation in which a “settler” community demands selfdetermination, Israeli/Jewish nationalism is different in at least two ways from these two other cases of “settler colonialism.” In Northern Ireland, the “settlers” are Protestants who came under British control on the island of Ireland mainly during the “plantation of Ulster” that took place predominantly during the seventeenth century; in Cyprus, it is the Turkish Cypriots who apparently came to the island under the Ottoman invasion in the sixteenth century during the early years of the Ottoman rule over Cyprus. In comparison, in Israel– Palestine, settling the land occurred with the inception of Zionism during the late nineteenth century and, mainly, the twentieth century. The Jewish settlement process dramatically changed the territory’s demographic composition: From a Jewish population of less than 10 percent in 1917 (Shlaim, 2001, 7), two communities developed with populations of around the same scale. In contrast to Northern Ireland and Cyprus, this settlement was carried out as part of a national agenda and when objections to colonialism and demands for selfdetermination of local populations started to gain international recognition. 7

This is the accepted national perception since Herzl, through the Law of Return and up to the Nationality Law from 2018. Historically, the more liberal perceptions in Zionism were willing to accept the personal choice of Jews who wished not to be included in the Jewish nationality but to hold to another nationality (German, Hungarian etc.).

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In the 1920s, the tensions between the two ethnic communities – Jews and Arabs – residing in Palestine had already turned violent. The first interethnic riots occurred in 1920. Other wide-scale intercommunal strife occurred in 1929 and once again in 1936–1939. In 1947, the UN General Assembly adopted a “partition plan for Palestine,” recommending the territory be divided between two nation-states – a Jewish state and an Arab state – with an economic union (UN General Assembly, 1947). For both groups, this recommendation ran counter to their national aspirations, as both perceive the whole territory to be their rightful “motherland.” However, while the Zionist leadership saw a compromise but also a major national achievement, Palestinians, who at the time made up a 63 percent majority of the population, perceived it as a gross injustice.8 The two communities reacted differently to the UN resolution. While the Palestinian leadership rejected the resolution, perceiving it to be unfair, the Zionist leadership – not without controversy – endorsed it.9 Following the endorsement of the Partition Plan by the UN General Assembly on November 29, 1947, a large-scale violent conflict between Zionist and Palestinian forces erupted. Building on this UN resolution, on May 14, 1948 the Jewish national movement declared the establishment of Israel as a new independent state in part of Mandatory Palestine. The local Palestinian population objected to the declaration, as did the neighboring Arab states who by that point had joined the local Palestinian forces. War followed the declaration, resulting in mass displacement of population, mainly of Palestinians, and the division of the former territory of Mandatory Palestine between Israel, Jordan, and Egypt. The Palestinian population that remained in the territory of the new Israeli state was granted Israeli citizenship but was immediately placed under military rule. This military regime was removed only in 1966. To this day, the Arab–Palestinian community in Israel suffers from discrimination (Kretzmer, 1990; Ganim, 2001; Jabareen, 2015; Daoud et al., 2018). During the 1967 war between Israel and its Arab neighboring states (labeled in Israel “the Six Day War”), Israel conquered all of Mandatory Palestine (and 8

9

When the partition plan was published, the Jews were a minority of 37 percent of the entire local population (O’Leary, 2016, 361 fn 22). However, from a Palestinian viewpoint most of these Jews were illegal immigrants who should not have been naturalized in Palestine (Qafisheh, 2009, 1; Ghanim, 2016, 342–343). The UN Subcommittee that considered alternatives to the partition plan of Palestine in 1947 argued for a unitary democratic state with minority rights (for Jews), observing that the recommended Partition Plan would grant the then Jewish minority 55 percent of its land, of which less than 10 percent was owned by Jews. While the UN Special Committee was dominated by Western and European states, the UN Subcommittee comprised a majority of Arab and Muslim states (O’Leary, 2016, 361 fn 22). Consequently, O’Leary argues, Palestinians did not reject a fair partition in 1947.

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more). Apart from East Jerusalem and areas around it that were annexed to the state of Israel, the rest of the West Bank and Gaza were placed under Israeli military rule. Supported by successive Israeli governments, as of 2022 approximately 690,000 Israeli Jews had become resident in newly built settlements in the territories that were occupied during that war (of whom more than 200,000 are in East Jerusalem and around 490,000 in the remaining West Bank). After the First Intifada – the first Palestinian uprising, which started on December 9, 1987 – peace negotiations between Israel and the PLO were initiated, resulting in the signing of an interim agreement (the Oslo Accords) in 1993. A Palestinian Authority, with some civil and security powers, was established in the West Bank and Gaza (for a critical evaluation see Said, 1996; Shlaim, 2005). Following Ariel Sharon’s visit to the Al-Aqsa Mosque in 2000, another violent conflict known as the Second Intifada erupted. Sharon’s provocative entrance, perceived as challenging and threatening Palestinians’ most sensitive religious and cultural symbols, ignited an armed struggle. Unlike the first Palestinian intifada, which was generally seen as a popular, nonarmed struggle, this wave of violent conflict was termed by Israel “an armed conflict short of war,” as it involved not only the Israeli Defense Forces but also armed Palestinian groups (Public Committee against Torture in Israel v. Government of Israel, HCJ 769/02, 2006; Eiland, 2010). This round of mass political violence was characterized by the extensive use of Palestinian suicide bombers against Israeli civilians and a massive use of force by Israel that included “targeted killings,” the imposition of extreme movement restrictions within the Palestinian territories, the reoccupation of the West Bank’s cities by the Israeli Army, the building of the Separation Barrier, and more. In 2005, Israel unilaterally removed its settlements and armed forces from the Gaza Strip, but continued to hold it under various forms of siege. In 2011, the state of Palestine applied for UN membership. In 2012, it was granted nonmember observer state status. Since 2014 the peace process has been in a prolonged freeze (Lehrs, 2021) and the violent conflict persists at various levels. Notably, Jewish settlement and other policies aimed at securing Jewish domination and control over the entire disputed territory continue (Yiftachel, 2006; 2021; Lustick, 2019). Despite many particularities and differences, the Israeli–Palestinian conflict, like the three previous cases, is a conflict between ethno-national groups that define and distinguish themselves by language, culture, history, and most prominently in these cases religion. This is the case also in Cyprus, Northern Ireland, and even the secular Bosnia and Herzegovina. Contrary to popular beliefs, which view these conflicts as based on or driven by religion (or

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language or culture), a more accurate description locates religion as one of the attributes associated with, or believed to be associated with, descent. While religion had distinguished the different local communities for a long time, even for centuries, the arrival of modern politics to the area had changed the ethnic topography dramatically, by shifting the ethnic boundaries themselves as well as shifting the meaning of membership in the ethnic communities. These processes had been built on previous social markers, mainly religion, and on experiences of exclusion, deprivation, and discrimination, such as the experiences of the native Irish following their oppression by British settlers, the experience of Jews in Europe, or threats to political-collective status, such as the experiences of Bosnian Serbs at the time of Bosnia and Herzegovina’s independence and of Arab Palestinians following the Zionist immigration to Palestine. Using various social routines, political leaders and national movements transformed the premodern social structures – of Turks and Greeks in Cyprus; Jewish and Arab communities in Palestine; Irish clans and British settlers in Ireland – into political communities with a shared subjective belief in common descent and a joint aspiration for national self-determination. With the consolidation of the nation-state as the legitimate way in which politics is organized in the respective locales, the aspiration of these imagined communities takes the primary form of a nation-state for their nation or securing their political union with their “motherland,” the kin-state of those sharing their ethnicity. The Irish aspire to an independent Ireland on the entire island of Ireland; British Protestants in Ireland aspire to a union with the UK; the Greeks of Cyprus aspire to enosis – union of Cyprus with Greater Greece; the Turks of Cyprus aspire to taxim – partition of the island in order to unified its northern part with Turkey; Jewish Zionists and Palestinian Arabs both aspire to their own national home in Palestine; while Bosnian Serbs and Croats aspire to be unified with Serbia and Croatia (respectively), their ethnic kin motherlands. These national demands take the form of conflict over a specific territory. In Israel– Palestine both groups perceive their homeland as including almost identical territory – the whole land of Eretz Israel/Palestine, depicted by maps that are produced by the national institutions or that are popularly used (Wallach, 2011; Yiftachel, 2021, 28).10 While Israel–Palestine presents a severe case in which two peoples demand exclusive self-determination in exactly the same territory, the three other cases also include mutually exclusive self-determination demands. 10

This is how the map of Israel was described by Israel’s Ministry of Foreign Affairs: “Long and narrow in shape, Israel is approximately 470 km. (290 miles) long, and approximately 135 km. (85 miles) wide at its widest point. The total area of the state of Israel – including Judea and Samaria (the West Bank) and the Golan Heights – is 22,145 sq. km., of which 2.1% is water.” www.gov.il/en/departments/general/topographical-map-of-israel (last visited November 15, 2022).

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Ideally, conflicting ethnic identities would be reconstructed to better fit the nation-state “box.” But empirical reality does not lend support to this hopeful ideal. Ethnic boundaries tend to harden during conflict and are unlikely to be unmade, as the four cases can illustrate. Therefore, a sound and realistic account of justice for deeply divided places must assume the ethno-national divide itself as stable. Instead of rejecting ethno-national identities and portraying them as dangerous and racist, they should be recognized – as they are part of our social world that is unlikely to go away. The task is therefore to offer a realistic ideal of justice, that on the one hand can accommodate these political entities, and on the other hand can be achieved through the application of permissible policies and actions. To further understand the empirical reality for which a reasonable theory of justice for deeply divided places should account, we need a better understanding of the root causes of ethno-national conflicts and the primary characteristics of such places. 2.3  CAUSES AND CHARACTERISTICS OF ETHNONATIONAL CONFLICTS

As the end of the Cold War did not bring political tranquility and ethnic conflicts seem to be everywhere, many believe that the problem is found in conflict-prone ethnic divides. But despite their bad reputation, only a very small percentage of ethnic divides lead to active conflicts, let alone to violent ones (Fearon & Laitin, 1996). The question is, therefore: Can we distinguish the root causes, background conditions, and actions that make ethno-national conflict more likely? 2.3.1  Ancient Hatreds During the late 1980s and early 1990s, the common public perception viewed ethno-national conflicts as driven by ancient and irreconcilable hatreds that could not be resolved by negotiated, give-and-take agreements (Staub, 1989; Kaplan, 2005; Bakwesegha, 2004, 334). This perception supported the view that it was unrealistic to try to prevent or stop these conflicts, and that benevolent attempts by outside mediators could prolong the fighting and prevent a more secure peace being obtained by one side’s clear-cut military victory. This perception was very prominent in discussions around the wars in the Balkans that erupted from the disintegration process of former Yugoslavia. The dominant perception of the war was expressed in the terms of “Balkanization” or “tribalism.” The Balkans, it was argued, are found at the confluence of civilizations and are caught historically between the shifting borders of the Ottoman and Austro-Hungarian Empires; ethnic rivalries driven by ancient hatreds are always

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beneath the surface, waiting to erupt (Kaldor, 2012, 36; Connor, 1993). “A Letter from 1920,” a short story written by Ivo Andrić between the two world wars that was widely quoted during the Balkan wars, summarizes this perception vividly. Maks, a young Bosnian doctor born and raised in Sarajevo, decides to leave his country forever. To his friend’s question “What is it that is making you run away from Bosnia?” Maks answers “if I nevertheless had to say in one word what it is that’s driving me out of Bosnia, I would say: hatred.” He explains further, But, you see, there is one thing that people in Bosnia, at least people of your kind, should see and never lose sight of – Bosnia is a country of hatred and fear. Yes, Bosnia is a country of hatred … not limited just to some such moment in the course of social development and an inevitable part of a historical process; rather, it was hatred that exhibits itself as an independent force, that finds its purpose in itself …. You even love your native land, you fervently love it, but in three or four different ways which cancel each other out, hate each other to death, and often clash. (Andrić, 2001)

This perception of ethno-nationalism as an irrational, centuries-old hatred, which pervaded much of the early 1990s political and journalist discourse, is caught vividly in Robert Kaplan’s influential book Balkan Ghosts (Kaplan, 1993). The dangerous consequences of these barbarian traits, presented as the struggle between violence-prone primitivism and civilization that only Western Enlightenment could prevent, are caught in Kaplan’s later work The Coming of Anarchy (Kaplan, 1994; 2000), echoed in Samuel Huntington’s highly influential thesis about the clash of civilizations (Huntington, 1996). Yet, the vast majority of scholars reject this view (among the many critiques of Kaplan’s analysis see, e.g., Cooper, 1993; Todorova, 1994; Tuastad, 2003). Scholars of ethnicity and ethnic conflict have noted, for example, that the view that attributes such conflicts to irrational hatred cannot explain why it is that only in some cases do such ethnic divisions lead to a violent ethnic conflict and in those places only some of the time, or how and why ethnic groups change over time (Stewart, 2008, 7–12). The contemporary consensus among social scientists rejects the essentialist perspectives of ethnicity and nationalism as oversimplified (Brubaker, 2009; Wimmer, 2008a; 2008b; Cederman, 2013, 534). However, rejecting the primordial explanation of ethnicity and nationalism does not imply that all arguments for the stability of ethnic identity equate to primordialism, or that hatred plays no role in conflict processes (Petersen, 2002; Cederman, 2013, 534). Hatred does have a role, but its extent and the reasons for its eruption, beyond the mere observation of its existence between some ethnic groups, can be better explained.

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2.3.2  Clash of Civilizations Scholars generally agree that identity matters. The more interesting question, however, is what kinds of differences (ethnic, cultural, religious, civilizational) matter, how, and under what conditions they impact conflicts. Theorizing state behavior after the end of the Cold War, Samuel Huntington’s compelling and highly influential answer was that the post–Cold War era would no longer primarily reflect power calculations or ideology but, rather, civilizational affiliations. He argues that some “civilizational” traits are more violence prone than others and that, in particular, Islamic culture provokes more conflicts than other civilizations. Therefore, it is along the “fault line” between world religions that conflict will most likely erupt (Huntington, 1993; 1996; 2000). According to Huntington’s thesis, the cultural differences that matter are large and insuperable – what he termed “civilizational.” But his thesis received strong criticisms for being fundamentally misleading, given the deep cleavages within both Western and Islamic “civilizations.” He also failed to support empirically the notion that interstate disputes and wars are more common across civilizational fault lines than elsewhere (Henderson & Tucker, 2001; Fox, 2002; Chiozza, 2002); in fact, “violence appears to be more likely within than between civilisations or groups of similar states” (Gartzke, 2006, 55).11 Consequently, the popular explanations of ancient hatreds or civilizational clashes are generally rejected as explanations for or good predictors of ethnonational conflicts. 2.3.3  The Dark Side of Political Modernity Leading explanations see ethnic and ethno-national violent conflicts as the dark side of the global political shift to the nation-state model (Wimmer, 2002, 88; 2013a; 2018; Mann, 2005). The four conflict cases of Northern Ireland, Bosnia and Herzegovina, Cyprus, and Israel–Palestine illustrate this argument. The Northern Irish conflict, originally developed within the framework of medieval relationships between indigenous peasants and conquering overlords, changed dramatically as soon as control over a modern nation-state was at stake. The dynamics and lines of conflict were readjusted: The groups in conflict became “ethno-religious” groups, viewed also as different “peoples” (Wimmer, 1997, 633; Barry, 1975). Ethnic relations in Cyprus developed from peaceful coexistence during the Ottoman period to being more fragile and hostile during British colonial 11

However, mixed minority–majority dyads, i.e., neighboring states sharing ethnic groups that are in a majority and minority respectively, do demonstrate more frequent violence (Cederman, 2013, 538).

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rule, and into a violent conflict once independence in the form of a modern state emerged. The tranquil ethnic relations in Bosnia and Herzegovina – the most multiethnic of the six republics that constituted the Communist Yugoslav federation – took a very sharp turn with the inception of the modern democratic nation-state, when the Serbians in Bosnia and Herzegovina resisted becoming a dominated minority. In Israel–Palestine, generally peaceful and stable relations between Jews and Arabs under the Ottoman Empire, which despite ethnic and religious tensions at times managed to politically accommodate the inhabitants of the area for most of its duration (Campos, 2010; Klein, 2014), turned into violent conflict following the emergence of the Jewish national movement (Zionism) and its subsequent actions in Palestine. The Zionist movement aiming to establish a state for the Jews in Palestine, and the Balfour Declaration promising to establish a national home for Jews in Palestine, transformed the Ottoman-era stable interethnic relations into a violent struggle. Independence from Britain, the old colonial power, amplified the struggle, leading to a full-scale war. The shift from premodern political systems to the modern nation-state has been characterized by a shift of sovereignty from the “ruler” to the “people,” raising the question of who is the “people,” and the subsequent aspiration for congruity between the “people” as ethnos and the “people” as demos (Wimmer, 2002; Mann, 2005). If such congruity between ethnos and demos is sought, what should be done with those of different ethnicity? Different situations have resulted in different answers, from places where accommodations were made possible such as Switzerland and (more recently) Belgium, to forced assimilation, minority subjugation, and even ethnic cleansing and genocide. Mann and Wimmer argue that this connection is not merely accidental but is tied to modernity itself. With its principles of democracy, citizenship, and popular sovereignty, “the indivisible trinity of the world order of nation-states,” as Wimmer notes, modernity has on its bright side allowed for the inclusion of large populations previously treated as subjects, but on its dark side created new forms of exclusion, of those not considered to be true members of the family: those who became classified as foreigners, as ethnic or religious minorities, as guest workers or stateless persons (Wimmer, 2002, 2–4; 2013a; 2013b; 2018; Mann, 2005). As nation-states are the global “standard,” perceived to be legitimately “owned” by one nation (being the “true” fulfillment of nationalism, according to which the nation should possess its own state; Gellner, 1983), it can be expected that ethno-national groups inhabiting the same territorial unit will fight for dominance. Such groups will aim to achieve and secure dominance, or, as a minimum, avoid being dominated by another ethno-national group. Practically, three routes are open to the nondominant ethnic group(s): (1) assimilation; (2) gaining access to the political power of the state; or (3) leaving

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it in favor of a new state or an already existing kin-state. Indeed, assimilation has been the dominant form by which multiethnic countries have become substantially mono-ethnic (i.e., at least 70 percent of the population considers itself to belong the same ethnicity; Mann, 2005, 18). But voluntary assimilation has not always been possible, as it may be objected to by both the minority and the majority. In the context of Israel–Palestine, for example, a massive assimilation process has been underway to “melt” the different Jewish ethnicities into one, national, Jewish community (i.e., the “melting pot” policy during the early years of the new state of Israel; Zameret, 2002; 2012; Ya’ar, 2005). At the same time, such assimilationist intentions have not been extended toward the country’s Arab Palestinians (Mehozay, 2012), who also resisted such assimilation as they were already engaged in their own nationalist project (Hassassian, 1985). The other two options – sharing the powers of the state or separation – are commonly rejected by the dominant majority, which either feels threatened by the national minority/minorities or perceives the latter’s demands to be unjustified and to curb its “rightful,” “democratic” rule of the country based on its (true or manipulated) civic majority. To illustrate this kind of majority reaction, we can recall Northern Irish Protestants’ response to Irish Catholics’ demands for equal rights at the end of the 1960s; Israel’s Jewish majority’s response to demands raised by Arab–Palestinian citizens for full political equality; or Greek Cypriots' belief in their eligibility to run the state as theirs without needing to share it with the much smaller community of Turkish Cypriots. Although ethno-national conflicts are largely driven by political interests, and are thus open to negotiation and compromise, these conflicts are regarded as intractable – that is, hard to settle – as they present highly complex challenges: They involve a whole scheme of interlocking legal, political, and economic institutions, and include multiple interests, various representations, cross-border dimensions, and other unique features requiring a tailored approach, while challenging the most fundamental structures of the nation-state, including its constitutional essentials and borders (Wimmer, 2004b; Wolff, 2011a). As such, ethno-national conflicts are usually perceived as a zero-sum game, where one side’s positions and claims are unacceptable to the other. The difficulty of finding common ground and compromise is aggravated by the traumatic effect of violent conflict, as violence gives rise to deep enmities and nearly unbridgeable divisions (Bose, 2007, 2). 2.3.4  Political Exclusion and Intergroup Inequalities Since ethno-national conflicts are related to “rational” political interests, they are framed as struggles over who “owns” the nation-state (Wimmer, 1997).

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These wars erupt where political integration of the population has failed and the citizenry has not developed loyalty toward the state; they revolve around ethnic groups’ access to state power, and around the allocation of the modern state’s collective goods and resources. Beyond economic interests, collective goods are understood to be diverse and complex, and include territorial sovereignty, protection from arbitrary violence, social and legal security, political representation, financial redistribution, economic infrastructure, the symbols of the state, and more (Wimmer, 1997, 642; 2004a; 2004b; 2013a; 2018; Cederman, 2013, 538). Exclusionary power structures – viewed as violations of the nationalist principle of self-rule (Wimmer, 2013a) – and “horizontal inequalities” – inequalities in economic distribution, political representation, and cultural recognition between ethno-national groups – strongly correlate with the increased likelihood of violent conflict, especially when political exclusion and intergroup inequalities overlap (Hillesund, 2018; Cederman et al., 2011; Stewart, 2008; 2011). Theories of ethno-nationalistic civil wars suggest dividing the escalating processes from structural asymmetries – associated with alien rule and ethno-nationalistic domination – to the outbreak of violence into two steps: first, transforming objective inequalities into collectively felt grievances; and second, the process by which collective grievances trigger collective violence. This sequencing assumes that objective inequality is not enough and that a requirement for collective mobilization must be some actual or potential shared grievance, as without some sense of grievance people do not mobilize.12 2.4  THE NATION-STATE PARADIGM AND ITS CONCEPTIONS OF JUSTICE

Perceptions of political legitimacy and justice are fundamental, and play a crucial role in the “translation” of objective conditions, tangible and intangible, such as particular economic, political, and cultural circumstances, into injustices and grievances. As argued by Robin M. Williams: People can be deprived, disappointed, frustrated, or dissatisfied without feeling that they have been unjustly or unfairly treated – their unsatisfactory outcome may be “just the way things are,” or the result of divine judgment, or a consequence of personal ineptitude. In contrast, a real grievance, regarded as the basis for complaint or redress, rests upon the claim that an injustice 12

Focusing on intergroup inequalities, research has found that when inequalities are consistent across dimensions – economic, political, and cultural – the probabilities of conflict increase (Stewart, 2008, 299; 2011; Cederman, Weidmann, & Gleditsch, 2011).

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has been inflicted upon undeserving victims. Grievances are normative protests, claiming violations of rights and rules. (Williams, 2003, 131)

Once a group identity becomes salient, group members are likely to compare their group’s status with others. When such comparisons are made in the context of political modernity, where the nation-state model represents the legitimate political order, and when such comparisons reveal political exclusion and clear inequalities, the latter are viewed as gross violations of nationalist principles: “In contrast to empire, where ethno-political hierarchies were often seen as legitimate and God-given, they now appear as a violation of the ‘like-over-like’ principles of legitimacy on which nation-states are supposed to rest. The spread of nationalism, in other words, is a precondition for rebellions against political domination by ethnic others” (Wimmer, 2013a, 119). 2.4.1  Legitimating Majority Domination and Minority Protest The problem is that the nation-state model and its accompanying ideals of democracy, citizenship, and popular sovereignty push in two, opposing directions. On the one hand, dominant ethnic groups perceive the nation-state as their “own,” in the way that Northern Ireland has been conceived by its dominant ethnic community of British Protestants as a Protestant state for a Protestant people, or Israel is perceived and constitutionally defined as a Jewish state for the Jewish people.13 On the other hand, influenced by the modern promises of popular sovereignty and citizens’ equality, the political exclusion and “collective inequality” are experienced by the ethno-national minority as gross injustice. Grievances may instigate a violent conflict – but they also may not. As a mobilizational resource, grievances can be used by political leaders to instigate collective action. However, such grievances can also be dismantled or played down if redress is given through peaceful means, for example through institutional accommodation within the governing political structures (Cederman, 2013, 540; Wimmer, 2013a, 193–194). Even if a military victory is secured by one side, peace will not be sustainable without cooptation, integration, or accommodation of the ethnic constituencies of the losing side. In cases where salient group identities have already developed, cooptation and integration are often unavailable, because either the winning side, the losing side, or both are unwilling to do so. Yet, accommodation is not frequently offered, as states 13

According to Article 1(3) of Israel’s nationality law from 2018, the right to self-determination in the state of Israel is exclusive to the Jewish people.

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prefer maintaining the status quo, even at the price of the need to resort to continuous internal repression (Lustick et al., 2004). Since without political inclusion of the losing side military victory will not last long, it will require the ethnocratic regime to exercise control and reinforce its military capacities to prevent opposition or win again in a future circle of violence (Wimmer, 2013a, 193–194). Here again, the problem is that both sides find their legitimacy in the nation-state model, as the dominant ethnic group is confident in its right to preserve and protect its “own” state, and the dominated minority is confident in its right to be treated fairly within the existing state or achieve its political independence separately. The question of the conditions under which regimes will agree to concede their advantageous position by sharing power or letting minorities secede without the use of violence does not receive a clear answer in the existing literature (Tilly, 1978; Oberschall, 1978; Manekin & Mitts, 2020 and the sources cited there). Part of the answer, I maintain, is found in the hegemony of the majoritarian model of democracy that accompanies the nation-state model, and the lack of legitimacy of power-sharing political arrangements. The majoritarian model, conceived as the natural and proper model of democracy, reinforces the majority’s perception that it democratically rules the state, although in practice it exercises ethnic domination. The four conflicts in Northern Ireland, Bosnia and Herzegovina, Cyprus, and Israel–Palestine illustrate sites where, in the absence of successful political integration and a sense of loyalty to the state prior to independence, modern politics within the nation-state takes the shape of political exclusion and discrimination along ethno-national lines, in turn increasing the risk of the outbreak of violent. These were the conditions in Ireland, which was ruled for centuries as a British colony. The island’s partition in 1921 divided the Irish Catholics living in Northern Ireland from their coethnics and maintained their subordination to the British Protestants, as they continued to be ruled as an internal colony. Politically excluded and economically and culturally discriminated against under the Stormont government (1922–1972), violent conflict erupted when the large Irish Catholic population in the north no longer tolerated its status as an excluded and discriminated minority (Wimmer, 2013a, 171). Similar exclusion and discrimination characterized the treatment of Turkish Cypriots in Cyprus in the decade prior to the Turkish invasion (1964–1974). Arab Palestinians were, and still are, subjected to exclusion and discrimination to varying degrees (either those living within Israel, those in Israeli military-controlled areas, or those in the diaspora who were not allowed in). In Bosnia and Herzegovina, the long history of indirect rule – from Ottoman to Habsburg to Yugoslavian – did not cultivate identification with

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the state and reinforced ethnically based loyalties (Wimmer, 2013, 177). While informal power-sharing arrangements kept the peace during the Yugoslav period, the abrupt switch to majoritarian democracy, with a subsequent loss of power for the previously dominant Bosnian Serbs, further increased the likelihood of armed conflict. 2.4.2  Obscuring the Internal/External Duality of Conflicts Ethno-national conflicts do not abide by state borders. In fact, the real or probable incongruity between the nation and the state (and the state’s borders) is precisely the background against which nationalistic demands are made and conflicts erupt (Young, 2005; Brubaker, 1996). Yet, due to the hegemony of the nation-state model and of the explicit or implicit assumption that “the nationstate is the natural and necessary form of society in modernity” (Chernilo, 2006, 6), the standard dichotomy between internal and external/international domains maintains and bears several significant ramifications. One important consequence of this misleading dichotomy is how political borders are perceived and the political and legal results to which they give rise. Usually, state borders define what is “internal” (including politics, economics, law) and the rest, which is “external” or international. In situations of conflict, “nationalism not only transgresses state borders, it also transforms them” (Cederman, 2013, 542). The internal/external division loses much of its meaning as a stable political and legal fact, as “what was literally ‘inside’ yesterday becomes ‘outside’ tomorrow and vice versa” (Cederman, 2013, 542). This border “dynamic” can be attributed to the fact that many conflict situations involve both ethnic minorities within the state and majorities in neighboring states (Brubaker, 1996; Wimmer, 2004, 338). This dyadic involvement, however, is not accidental. It is driven by the basic force of nationalism as a political doctrine, according to which “the political and the national unit should be congruent” (Gellner, 1983, 1; see also Weber, 2013, 176; Connor, 1978, 383; Hobsbawm, 1992, 19). Given the special obligations to fellow members of the nation, the problem of some members not being part of the national-political unit, and becoming a minority under a foreign state, is a problem not only for the minority group but also for those who reside on the other side of the border. Categorizing ethno-national conflicts as either internal or external/international also fails to capture the conflict’s full picture and thus to diagnose the “problem.” Examples from the four conflicts compared here can illustrate the point. The Cyprus conflict started as demands by Greek Cypriots for enosis – annexing the island of Cyprus to “greater Greece.” These demands evoked a Turkish Cypriot demand to partition the island and join its northern

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part to Turkey. While it was impossible for both sides to achieve their goals, these irreconcilable demands were temporarily (but unsuccessfully) settled by a political arrangement that obliged the two ethno-national groups to share power in the newly constructed Cypriot state. The failure of the first powersharing Cypriot constitution brought direct Turkish involvement in the form of military occupation of a third of the island’s territory, which continues to this day. Currently, despite nonrecognition of the TRNC by the Republic of Cyprus and by the international community, the island of Cyprus is governed de facto as two separate political entities. With the repeated failures to reach a peace agreement that will reunite the island, the likelihood of recognizing a two-state reality may increase (Straw, 2017). Thus, the Cyprus problem has involved issues that are, at the same time, internal and external to Greece, Turkey, and Cyprus (and to a lesser degree also to Britain). The war in Bosnia and Herzegovina was driven by the goal of partitioning the newly declared state’s territory into Serb and Croatian territories – with the aim of adjoining these territories to neighboring Serbia and Croatia. It ended up with a peace agreement bestowing “equal status” on the three groups, two of them maintaining a close connection to their neighboring kin-states (Bose, 2005). The conflict in Northern Ireland is often summarized as revolving around Northern Ireland’s constitutional status, an issue inseparable from its international status – whether it would remain part of the UK (the Protestant Unionist position) or be united with the Republic of Ireland (the Catholic Nationalist position). The peace agreement included complex arrangements that combine internal and external power-sharing, which have been threatened by Brexit. Subsequent agreements with the EU (regarding for example tax issues) produced intense political controversies. The Brexit turmoil emphasized the extent of the external dimension contained in Northern Ireland’s arrangements with the UK and with the Republic of Ireland set by the GFA. The Israel–Palestine conflict might seem at first glance not to follow the same parameters as the other three cases. The belief that this conflict should be resolved within a framework of two separate states supports the common impression that the Israel–Palestine conflict is an international conflict between the state of Israel and Palestinians living outside Israel. However, the conflict also has a highly mixed nature, which is the result of five main aspects: the common perception held by Jewish nationals and Palestinian nationals of the whole Palestine/Eretz Israel territory as their homeland; a large population of Palestinian refugees (mostly descendants of Palestinians who lived in Palestine prior to the 1948 war), many of whom still reside in refugee camps in neighboring Arab states and claim a right of return to the territory now within the state of Israel; Israeli continuous control of the West

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Bank and to varying degrees also of the Gaza Strip; the significant number of Israeli citizens residing in West Bank settlements; and, last, the significant Palestinian minority within Israel. The understanding that this conflict is not an international (i.e., interstate) conflict but rather a communal conflict with internal and external aspects alike is fundamental to locating its root causes and what its transformation may require (Barak, 2005). Finally, the dichotomy between internal and external also commands how responses to ethno-national conflicts are conceptualized. These responses are generally conceived within two political and normative frames: (1) external self-determination, focusing on the creation of new independent nationstates; and (2) internal self-determination, focusing on protecting and ensuring human rights, particularly including the entire state population (including minorities) within the state’s political process, preferably through democratization. However, as I argue in the following chapters, this division between internal and external solutions is ill-equipped to deal properly with places deeply divided along ethno-national lines. Partition is not available in many ethno-national cases and even when it is available, it does not provide a standalone redress. Human rights law, while providing indispensable support for minority claims, fails to remedy the structural inequalities and political exclusion that often characterize democratization in deeply divided places. 2.5 SUMMARY

Situations of ethno-national conflicts are sites of conflicting demands for self-determination, commonly accompanied by great human suffering and widespread injustices. Contemporary understandings of ethno-national conflicts reject the popular explanations that they are an unavoidable outcome of ethnic or cultural heterogeneity, of a clash of civilizations, or of ancient or unreasonable hatreds. The best contemporary explanation connects the outbreak of ethno-national conflicts to failed political integration, leading to ethno-national domination and political exclusion of the national minority/minorities. Against the backdrop of political modernity, with its ideals of national self-determination, democracy, and equal citizenship, exclusionary ethno-political configurations of power and systematic discrimination are perceived as unjust and provide ammunition for a counter struggle over who controls or “owns” the nation-state and its collective goods. Thus, circumstances are found to be more prone to conflict when widespread inequalities between the dominant majority and ethnic minority groups are present, as the frustration of the basic expectations of equality and of rule by “like over like” provides fertile ground for mobilization.

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Injustices are thus an outcome of but also a “fuel” for ethno-national conflicts, since grievances about violations of rights and rules have a role in the escalation of conflicts. In this chapter I have made the first step in the argument, further developed in the next chapters, that the hegemonic conceptions of justice do not fit the social reality of deeply divided places, and do not provide a useful guide to transforming these nonideal situations with their widespread injustices. The hegemonic paradigm of the nation-state and prevailing conceptions of liberal justice assume and require congruence between a population – territorially defined – and the nation – understood as a political community that shares some kind of unity among its members. But the assumption of congruence between the population and the nation does not materialize in deeply divided places (by definition), as illustrated in the four locales of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine. Endorsing the constructed nature of ethnic and national identities, one might assume that as these identities have been made and shaped, they can be unmade or reshaped in the desired form of a new, civic nation. Unfortunately, empirical reality does not support this hopeful assumption. The required radical social and political transformation of a population already divided along ethnic loyalties into a single civic political community is unlikely in the short or medium term. In such cases, a reasonable theory should accept that ethno-national identities, which do not abide by state borders, are much more stable. The revised theoretical account should also avoid the pitfalls of the nation-state’s pervasive paradigm and reject the sharp dichotomy between internal and international conflicts, territories, populations, domains, and so on. Avoiding the internal/external dichotomy is required in order to grasp the full complexity of ethno-national conflicts and, as I argue in the next chapters, to conceptualize proper solutions to them.

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3 The Limits of Partition

3.1 INTRODUCTION

In Chapter 2 we saw how the outbreak of ethno-national conflicts – conflicts revolving around opposing demands for self-determination – follow failed political integration. These political failures, often involving or leading to domination of one ethnic group over another and to the political exclusion of national minorities, represent gross injustices, in turn providing “fuel” for political mobilization and violent conflict. The demands for self-determination aim to secure separate political independence, usually for the minority nations. The intuitive solution is therefore partition of the existing state (Bose, 2007, 2; Chapman & Roeder, 2007; Smooha, 2001). Partition refers to the division of a territory in order to create new political units on parts of that territory. The new political units may form new independent states (as the partition of Palestine was meant to create two nation-states, or as Albanian Kosovars aspire to), join an ethnic kin-state (as Bosnian Serbs and Irish Catholics in Northern Ireland aspire to join Serbia and Ireland, respectively), or alternatively form autonomous territorial units within the existing state (Republica Srpska, recognized in the Dayton Peace Agreement). Partition is assumed to enable each of the conflicting nations to “freely determine their political status and freely pursue their economic, social and cultural development” (Article 1, International Covenant on Civil and Political Rights, 1966 [ICCPR]). Against the background of severe cases of ethno-national conflict – such as the wars that took place during the early 1990s in the Balkans – realists argue that partition is the best, and sometimes the only, way to end the violence (Mearsheimer, 1993; Kaufmann, 1996; 1998; 2007; Downes, 2006; Smooha, 2001; Chapman and Roeder, 2007; Johnson, 2008). But despite the intuitive appeal of partition, sociolegal evaluation reveals multiple obstacles and considerable limitations to partition as a practical solution 73

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to ethno-national conflicts, as can be illustrated in the four cases of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine. One major obstacle arises from the inclination of international law to maintain the stability of existing international order based on territorially defined states. For those unfamiliar with the international law of self-determination, it might come as a surprise that according to this law, the right to “selfdetermination of peoples,” proclaimed by the two primary human rights covenants (ICCPR and International Covenant on Economic, Social and Cultural Rights, 1966 [ICESCR]), has been traditionally attached to states and not to national groups, in contrast to the ordinary, popular understanding of the term. This inclination brings international law to practically reject partitions that are not approved by the parent state. The second major obstacle, and the one that presents the greater limitation for partition as a solution to ethno-national conflicts, arises from the reality of ethnic heterogeneity across the disputed territories, which does not settle with the nation-state ideal. A “true” nation-state demands not only a territory for the “nation” but also that this territory will be, at least largely, ethnically homogenous. Yet in most cases of ethno-national conflicts, people from the rival ethnic groups live side by side across the land – as Irish Catholics and British Protestants live in Northern Ireland; as Bosniaks, Bosnian Serbs, and Bosnian Croats lived, and still live (although to a lesser extent), in Bosnia and Herzegovina; as Israeli Jews and Palestinian Arabs live across the land of Israel–Palestine; or as Greek Cypriots and Turkish Cypriots were living in Cyprus up until the 1960s. Due to this demographic mixture, territorial partition alone is unable to create new, ethnically homogenous, political units. Indeed, partition and separation are often conflated. Since territorial partitions have been thought also to produce demographic separation (in order to create the conditions for “true” nation-states), partitions have often involved population transfers. The authorized partitions of Mandatory Palestine and British India or the de facto partition of Cyprus are all examples of how partitions and separation go together. The partition of Palestine in 1948 involved a massive transfer of around 700,000 people, mostly Palestinians (Beinin & Hajjar, 2014); the partition of India brought a mass migration and population transfer of nearly 17 million people (Bharadwaj et al., 2019); and the de facto partition of Cyprus was accompanied by the displacement of around 160,000 Greek and 60,000 Turkish Cypriots (Gürel et al., 2012). During the first half of the twentieth century, and after the two world wars, population transfers have been included in peace treaties and other international resolutions, generally conceived as an unfortunate, though legitimate, means of increasing ethnic homogeneity within nation-states (Özsu, 2015;

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Frank, 2017). However, the change in international norms over the second half of the twentieth century, and particularly the increasing commitment of states and of international organizations such as the UN to respect and protect human rights, led to the physical uprooting of native populations being widely considered to be morally impermissible and illegal. Yet, as the nation-state ideal maintains, the interest in finding legitimate avenues for “homogenizing” states’ territories continues. Proposals that have been incorporated in contemporary peace plans for Israel–Palestine and Cyprus include the eviction of settlers from occupied territories, or the transfer of population to the jurisdiction of another state along with its native territory, suggested as recently as the 2004 Annan Peace Plan for Cyprus and the 2020 Trump Peace Plan for Israel–Palestine. In this chapter I aim to further explore the social conditions and normative constraints that influence the achievements that can be obtained through partition. My main argument is that although novel ideas for “homogenizing” territories may arise, a reasonable theory for peace must assume that forcible transfers of population in any form are prohibited, and consequently that demographically homogenous territories are unattainable. By looking at the social realities in the four cases of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine, I will illustrate that in most actual cases of ethno-national conflicts partition does not offer a viable course of action, if the goal is the creation of ethnically homogenous territories that can become “defensible enclaves” or “true” nation-states. Even in those cases where territorial partition makes sense – as in Israel–Palestine or in Cyprus and Bosnia and Herzegovina after the population transfers – peace must be attained not on the basis of ethnically homogenous nation-states, but rather on the basis of ethnically heterogenous territories and states. Thus, while territorial partition may be considered as one element in resolving ethno-national conflicts, its limitations must be recognized and attained with other policies for accommodating ethno-national diversity. 3.2  THE CASE FOR SEPARATION

The dramatic shift since the 1990s toward ending conflicts at the negotiation table rather than on the battlefield created new conditions in which groups’ demands for self-determination have been raised and seriously discussed, and ignited renewed interest in the issue (Sisk, 2008). As spelled out earlier, traditional demands for national self-determination include securing an independent, largely homogenous, sovereign state in which the self-determining people dwell together. A positive response to self-determination claims implies

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partition of the existing independent state, which is advocated as a pragmatic policy to overcome conflict between rival ethno-national groups (Kaufmann, 1996; 1998; Chapman & Roeder, 2007; Smooha, 2001). But territorial partition is not enough to create “true” nation-states. According to leading proponents of partition, it is also not enough to end violent conflict, as partition must be accompanied by ethnic separation. “Stable resolutions of ethnic civil wars are possible, but only when the opposing groups are demographically separated into defensible enclaves,” Chaim Kaufmann, one of the well-known proponents for the strategic use of partition and separation as a way to resolve ethno-national conflicts, argued in 1996 (Kaufmann, 1996, 137). According to Kaufmann, the separation of populations not only reduces incentives for further combat, but also reduces the opportunities for fighting and thus “largely eliminates both reasons and chances for ethnic cleansing of civilians” (Kaufmann, 1996, 137). Kaufmann predicts that while the fighting itself can be stopped by outside intervention (peacekeeping forces or foreign occupation), it should be viewed only as a temporary success that will continue as long as the enforcers remain. Hence his prediction that demographic separation is the only possible solution to ethno-national conflict, backed up with two main insights: First, in ethnic wars both hypernationalist mobilization rhetoric and real atrocities harden ethnic identities to the point that cross-ethnic political appeals are unlikely to be made and even less likely to be heard. Second, intermingled population settlement patterns create real security dilemmas that intensify violence, motivate ethnic “cleansing,” and prevent deescalation unless the groups are separated. As a result, restoring civil politics in multi-ethnic states shattered by war is impossible because the war itself destroys the possibilities for ethnic cooperation. (Kaufmann, 1996, 137)

Thus, as a tool for ending ethno-national conflicts, the efficiency of the policy of partition is attributed to its ability to bring demographic separation. The problem is that in most places of ethno-national conflict, the social reality is of ethno-national heterogeneity, involving rival ethno-national groups that live side by side across the disputed territories. Exceptions are often the result of previous incidents of mass displacement of population, as demonstrated in the divided island of Cyprus or the territories of Republica Serpska of Bosnia and Herzegovina. Realistically, then, it should be acknowledged that partition of territories by itself does not result in separating the ethnic rivals. In some cases, such as Northern Ireland, Cyprus during the 1960s (before the population transfers and its de facto separation), or Bosnia and Herzegovina in the early 1990s (before the massive ethnic cleansing that took place during the war), the ethnic dispersion was such that no reasonable dividing line could be

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drawn that supports demographic separation between ethnic rivals and creates territorial units with significantly different ethnic majorities. In other cases, such as in Israel–Palestine, a dividing line can be drawn but will not produce homogenous nation-states, as significant minorities of coethnics will be left on the “wrong side” of the border. Territorial partition with demographic separation may also result in separating individuals from their privately owned property, and communities from territories ascribed as part of their homeland where primary communal sites and national symbols are found, thus casting further doubts on the efficiency of partition as a conflict-resolution strategy able to produce “clean-cut” arrangements. Responding to the arguments in favor of partition – either de facto or de jure – as a way of resolving ethno-national conflicts, scholars have argued that partitions generally do not reduce conflict. The history of partitions is said to increase conflict by inducing further violence and triggering forced mass population transfers (Kumar, 1997). On the basis of careful examination of available evidence, scholars argue that neither de facto nor de jure partitions have the pacifying effect that their advocates claim (Sambanis, 2000; Fearon, 2004; Sambanis & Schulhofer-Wohl, 2009; Jenne, 2009). Replying to the criticisms, some advocates of partition argue that the continuation of a conflict after partition should be attributed to the fact that these past partitions were “unfinished” – as there was not full separation of the population. While few scholars emphasize the importance of de jure partition in order to fulfill national demands (Chapman & Roeder, 2007), others argue that the issue of the political arrangement (i.e., sovereignty) is only secondary to the creation of defensible ethnic enclaves (Kaufmann, 1996; 1998). According to this view, separation of the population is essential and can reduce violence with or without independent sovereignty, while partition without separation of the population along ethnic lines does nothing to stop mass killing (Kaufmann, 1996, 137). Therefore, in severe cases of ethnic violence, Kaufmann and a few others advocate the use of organized population transfers (Kaufmann, 1998; Downes, 2006; Johnson, 2008). Separation through organized population transfers is recommended and justified as the lesser of two evils. To avoid a worse evil – genocide or forced ethnic cleansing during war – it is argued that the international community must facilitate and protect population transfers to create “true national homelands.” Paralleling the logic that informed the first international legal organization of population transfer – the international agreement that organized the massive transfer between Turkey and Greece (Özsu, 2015) – Kaufmann describes his justification as purely humanitarian. He clarifies that any other solution is futile and dangerous: “Solutions that aim at restoring multi-ethnic civil

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politics and at avoiding population transfers – such as power-sharing, state re-building, or identity reconstruction – cannot work because they do nothing to dampen the security dilemma, and because ethnic fears and hatreds hardened by war are extremely resistant to change” (Kaufmann, 1996, 139). His unequivocal recommendation is therefore to do what is needed to create the conditions for separate self-governance. 3.3  THE UNATTAINABILITY OF SEPARATION

Even prior to World War II, population transfers during war were prohibited as part of customary international law. After the war, in 1949, the prohibition was codified within the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War (Article 49(1), GC IV). No such clear prohibition has been prescribed for agreed population transfers, even though support of population transfers as a needed complementary tool of partition has been criticized as entailing unacceptable human costs and as immoral. Several internationally supported peace treaties signed during the first half of the twentieth century organized the removal of ethnic minorities and their transfer to their kin-states, under the pretext of the protection of minorities. These include, for example, the peace treaties between Turkey and Bulgaria (1913); Turkey and Greece (1914); Greece and Bulgaria (1919; Treaty of Neuilly); and Greece and Turkey (1923; Lausanne Treaty, the Greco-Turkish population exchange agreement). Population transfer was also suggested in 1937 by the Peel Commission, the Royal Commission of Inquiry to Palestine, with the reaction to this proposal by Zionist leaders proving illuminating. While some leaders, among them David Ben-Gurion, supported the suggestion of population transfer as necessary and existential, most other leaders such as Ze’ev Jabotinsky condemned it (Abulof, 2015); however, following the events in Europe in 1939, it seems that Jabotinsky changed his views on the matter (see Rubin, 2019). Population transfers were also used at the end of World War II. Following the German defeat, the leaders of the USA, the UK, and the Soviet Union decided (either retroactively or in advance) on the transfer of about eight million ethnic Germans from Poland, three million from Czechoslovakia, and 250,000 from Hungary (Potsdam Agreement, 1945; Saliternik, 2013, 70). In August 1975 the two leaders of the Greek Cypriot and Turkish Cypriot communities reached an agreement on voluntary population transfer, aiming to “finish” the partition and population separation that occurred during the 1974 Turkish occupation. As we saw earlier, several contemporary commentators support population transfers as a realistic alternative to naïve hopes for stabilizing multination-states (Mearsheimer, 1993; Kaufmann, 1998; Downes, 2006).

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While population transfers were rejected by some politicians and intellectuals as immoral even during the first half of the twentieth century, the radical normative change brought by the human rights framework during the second half of the century also affected the political legitimacy and legal appraisal of population removals (see Chapter 4, Section 4.2.2, for a brief discussion of the rise of human rights). Nowadays, population transfers that involve the physical uprooting of native populations – an expulsion of a population from its native territory – are assumed to be both morally impermissible (Gans, 2008, 95) and illegal, as they violate a range of human rights (Sub-Commission on Prevention of Discrimination and Protection of Minorities, 1997; Saliternik, 2013). The attempt to justify such removals as a humanitarian necessity, as Kaufman’s argument goes, should be rejected. While the possibility of great evils – such as genocide or ethnic cleansing during war – did not dissolve, the argument that mass population transfer is the only way to prevent these greater atrocities is unacceptable. Executing such a population transfer assumes a significant international involvement: in the crafting of the agreement of the agreed population transfer and in its execution. If such a massive international involvement can be envisaged, then it is hard to accept that other, less harmful courses of action are not available. Alternatives can include the stationing of peacekeeping forces, the establishment of complementary political institutions, and the encouragement of other social and economic changes (see Chapter 5 and Part III, Chapters 7–9). Various cases, among them the Bosnia and Herzegovina, Rwanda, and Cambodia, can illustrate how coexistence, even after a horrific war, is possible. Therefore, it seems valid to claim that attaining ethnic separation through the physical uprooting of native populations is today morally impermissible and illegal. Yet, the ambition to create more homogenous nation-states in places of ethno-national conflict continues, and new types of population transfers are suggested (Saliternik, 2013, 64). One such suggestion is of a transfer of population to the jurisdiction of another state along with its native territory. Such a proposed plan was raised in the context of Israel–Palestine by Avigdor Lieberman, a senior Israeli politician, and later mentioned in the 2020 Trump Peace Plan. According to Lieberman’s plan, three Arab-populated areas of Israel adjacent to the West Bank would be transferred to Palestine, in parallel with the annexation to Israel of several Jewish-populated areas in the West Bank (Waters, 2008a, 224). While Lieberman’s plan is criticized by liberal commentators and scholars and rejected as illegal (Shany, 2008; Saban, 2008), there seems to be an agreement that in principle states can transfer populated areas if certain conditions are observed (Gans, 2008, 95; Waters, 2008a; Waters, 2008b; Rabin & Peled, 2008).

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Another type of population transfer is the eviction of settlers from an occupied territory. As the establishment of settlements violates Article 49 of the Fourth Geneva Convention (ICJ Rep 136), such an eviction has not been regarded as an illegal “transfer,” but rather a lawful act required to correct a serious violation of international humanitarian law caused by Israel (Shany, 2005, 243–244). The legality of such removal of settlers, based on the temporality of their presence in these territories, was even recognized by the Israeli Supreme Court in the case of Hof Gaza Regional Council v. The Knesset (H.C. 1661/05). However, the expanding recognition in the application of international human rights obligations in occupied territories, including toward citizens of the occupying power that were illegally settled in such areas, suggests a possible shift in this regard. The case law of the ECtHR regarding property claims in North Cyprus (Demopoulos and Others v. Turkey, 46113/99), as well as minority rights policies promoted by the EU regarding Soviet-era settlers in Eastern Europe (Smith, 2003), cast doubt on the legality of a blanket demand for the forced eviction of settlers from an occupied territory. As is implied by the ECtHR case of Demopoulos and Others v. Turkey, such a demand would potentially result in human rights violations when a long period has already elapsed since the time of their settlement (cf. Zemach, 2015). In addition, if settlers remain in the territory, a strong argument can be made that the new state is under the obligation to offer them citizenship, if they so wish (Skolnick, 1996; Visek, 1997), and consequently to guarantee their individual and minority rights in accordance with international norms (see Chapter 4). 3.4  OBSTACLES AND LIMITATIONS TO PARTITION

While partition, aimed at creating a new independent state on the part of an existing state, may receive wide local support among members of the national minority,1 states and the international community tend to reject demands for partition.2 States generally prefer to maintain the status quo even at the cost of resorting to continuous internal repression (Lustick et al., 2004).With states rejecting agreed partition, most such demands are framed as secessionist; that is, the pursuit of unilateral withdrawal from a state (Thürer & Burri, 2009, section 1). 1 2

For example, among Bosnian Serbs of Bosnia and Herzegovina, among Albanian Kosovars, and among many Turkish Cypriots. The Israel–Palestine case is different, since part of the territory now controlled by Israel is an occupied territory according to international law. The right of the Palestinian people to separate self-determination in the form of independent statehood has been recognized by the international community since the adoption in 1947 of the partition plan for Palestine.

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Traditionally self-determination has been understood to mean the creation of a new independent state. But as a legal order based on sovereign states, international law favors stability and the integrity of its principal legal subjects, and hence “dislikes” unilateral acts of partitioning existing states (Walter et al., 2014, 3). Indeed, the essence of the traditional right of self-determination of peoples is that it in itself constitutes a valid basis for a claim to secede, irrespective of the wishes of the central government … Hence, it is not surprising that the right to self-determination in the sense of unilateral and opposed secession has been defined very restrictively. After all, it is the governments that make the law in the international sphere, and they can be expected to do so according to their shared perception of central state interests. (Weller, 2008b, 23)

Marcelo Kohen eloquently summarizes it thus: “The emergence of a new State to the detriment of an older sovereign entity disrupts the composition of international society and challenges the very foundations of its main actors” (Kohen, 2006, 1). Therefore, self-determination as independent statehood (external self-determination) has only been recognized as a legal right of peoples under colonial rule or foreign occupation (Western Sahara, AO ICJ Rep 12, 1975; A Wall in the Occupied Palestinian Territory, AO ICJ Rep 136, 2004, para. 118; Chagos Archipelago, AO ICJ Rep 169, 2019; Cassese, 1995; Kymlicka, 2001; Kohen, 2006; Tomuschat, 2006, 36; Weller, 2008a). Since the process of decolonization is virtually over,3 and almost all contemporary conflicts involve self-determination claims directed toward independent sovereign states,4 the question of whether and how the right applies to sovereign states, and particularly what is the meaning of “peoples” entitled under common Article 1 to self-determination, is of utmost importance for evaluating the feasibility of partition as a tool for conflict resolution. Review of the case law and commentaries on the issue reveals a gradual and slow process of evolution, heavily constrained by the interest in maintaining the stability of the existing international order of territorially defined sovereign nation-states. We can identify three main ways by which the development of international law is committed to safeguarding stability vis-à-vis claims to self-determination: defining peoples

3

4

Here I refer to the end of colonialism as a formal and legal phenomenon. According to reports adopted by the UN General Assembly in 2000, the remaining non-self-governing areas include Western Sahara, New Caledonia, Tokelau, American Samoa, Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Guam, Montserrat, Pitcairn, St. Helena, the Turks and Caicos Islands, the United States Virgin Islands, and the Palestinian territories (Kohen, 2006, 36). The notable exceptions are the conflicts involving the Palestinian territories and the Western Sahara.

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as territory; channeling demands of subgroups to internal self-determination; or considering a highly restricted (and not yet recognized) legal right to “remedial” secession. Stability I: Peoples = Territory The considerations of stability and the integrity of states have been incorporated into international law via the norm of territorial integrity (Charter of the United Nations, 1995, Article 2; GA Resolution 1514, 1960, para. 6; GA Resolution 2625, 1970; Final Act of the Helsinki Conference, 1975), regarded as one of the cornerstones of international law. Interpreting the legal texts in accordance with international practice, and with the norm of territorial integrity, scholars maintain that “the international legal definition of ‘peoples’ acknowledges the existence of only one people where there exists a State” (Kohen, 2006, 9). Accordingly, the contemporary interpretation of the right to self-determination under international law attaches the right to ­self-determination to territorially defined peoples, and not to ethno-national groups (Donnelly, 1993, 119; Kohen, 2006; Shany, 2014; Castellino, 2014, 33). The norm of uti possidetis juris – according to which the territorial boundaries of newly formed states are determined on the basis of territorial administrative or international divisions established during colonial rule and before their independence – provides the normative standard default by which the territorial boundaries of “self-determining peoples” are defined. Since appealing to the principle of self-determination could not settle the issue of rival territorial claims, it was established that when a negotiated boundary adjustment was not reached, the borders inherited at independence from the colonial powers will also define the new borders of the successor states (Weller, 2008a, 9–10; Peters, 2014). It is “a principle which upgraded former administrative delimitations, established during the colonial period, to international frontiers” (Burkina Faso v. Republic of Mali, ICJ Reports 1986, para. 23). During the decolonization processes, the principle of uti possidetis juris was adopted to validate existing borders, first in Latin America and later in Africa. With the collapse of the Soviet Union the uti possidetis juris principle was imported into Eastern Europe, where previous internal borders of federal states were upgraded to the status of international borders. Prominent legal scholars uphold uti possidetis juris as a customary rule of international law applicable to contemporary processes of dissolution and secession (Peters, 2014, 110; Shaw, 1997; Nesi, 2011, paras. 6 and 15–16). It offers a practical solution to an otherwise unresolvable ethical problem (cf. Rawls, 2001b, 38–39), and secures for the new states “the essential requirement of stability in order to survive, to develop and gradually

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to consolidate their independence in all fields” (Burkina Faso v. Republic of Mali, 1986, para. 20; Nicaragua v. Honduras, ICJ Reports 2007, para. 151). However, the practical solution and aspired-to stability are designed based on territorial divisions, disregarding ethnic identities and political alliances. Stability II: Internal Self-Determination for Subgroups Bifurcating from the strong inclination to territoriality, other prominent commentators maintain that for the purposes of internal s­ elf-determination, “a people” under common Article 1 may include a portion of the population of an existing state, and not only all the population of that state (Cassese, 1995; Raic, 2002, ch. 6, section 3.2). The declaration of the rights of indigenous peoples from 2007 (DRIP), considered a dramatic legal milestone, adopts the ethnic approach to self-determination, and explicitly recognizes a right of indigenous peoples to internal self-determination in the form of autonomy. The understanding of “a people” as including a portion of the population was also supported by the Canadian Supreme Court, which stated: It is clear that “a people” may include only a portion of the population of an existing state. The right to self-determination has developed largely as a human right, and is generally used in documents that simultaneously contain references to “nation” and “state.” The juxtaposition of these terms is indicative that the reference to “people” does not necessarily mean the entirety of a state's population. To restrict the definition of the term to the population of existing states would render the granting of a right to selfdetermination largely duplicative, given the parallel emphasis within the majority of the source documents on the need to protect the territorial integrity of existing states, and would frustrate its remedial purpose. (Reference by the Governor in Council, 1998 2 S.C.R. 217, para. 124)

While the court recognizes that a subgroup may qualify as a “people” entitled to the right to self-determination, it endorses a cautious interpretation regarding the scope of the right. Accordingly, it states: The recognized sources of international law establish that the right to self-determination of a people is normally fulfilled through internal selfdetermination – a people's pursuit of its political, economic, social and cultural development within the framework of an existing state. A right to external self-determination (which in this case potentially takes the form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under carefully defined circumstances. (Reference by the Governor in Council, 1998, para. 126)

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While the option of recognizing peoples based on ethnic affiliation and not only on the basis of territorial state borders finds some support in international law, it remains highly limited. The legal developments are done with great caution, as exemplified in the DRIP, which confines the recognition of a right to internal self-determination in the form of autonomy to indigenous peoples alone, and does not include national minorities (Kymlicka, 2007b). Remedial secession is another avenue of potential progress, which remains hotly debated. Stability III: Remedial Secession While subgroups in sovereign states are generally not endowed with a right to unilaterally “leave” their states, the view that a “qualified” right to “remedial” secession exists in international law has received growing support from scholars, especially during the last two decades (Buchheit, 1978; Raic, 2002, ch. 7; Buchanan, 2007, ch. 8; Tomuschat, 2006, 42; Peters, 2014, 105, and the references at fn 43), and from courts (concurring opinion of Judge Wildhaber, joined by Judge Ryssdal, in Loizidou v. Turkey (Merits), 15318/89, 1996; Reference by the Governor in Council, 1998). The declaration of independence of Kosovo in 2008, when Kosovo formally proclaimed independence from Serbia, led the UN General Assembly to request an advisory opinion from the International Court of Justice (ICJ) on whether the declaration of independence of Kosovo was in accordance with international law. This request for an advisory opinion from the ICJ, the principal judicial organ of the UN, presented an opportunity to develop and clarify the existing law. However, in its concise and modest opinion, the court reiterated that the right to self-determination is a right accorded to peoples subject to a foreign rule (Kosovo, AO ICJ Reports 2010, para. 79). The question of whether the right to self-determination is accorded to peoples residing within a sovereign state in general, and particularly in situations where they are subject to domination by another ethnic group within the state, was left open by the court. The court noted that on that subject “radically different views were expressed by those taking part in the proceedings” and justified its abstention from ruling on the matter in this case by saying “that issue is beyond the scope of the question posed by the General Assembly” (Kosovo, para. 83). While the court did not accept the claims regarding the existence of a right of “remedial secession” in general and regarding Kosovo specifically, it did not reject them either and seemed to intentionally leave the door open for further developments. Consequently, we still lack clear normative guidelines, and parties to self-determination conflicts, as well as the international community,

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are left in a “catch 22”: For a nondominant national group to realize selfdetermination, the group needs to obtain not only effective control over the territory, but also political and legal recognition from the international community. Following the Kosovo advisory opinion, delivered on July 22, 2010, in which the court stated that “the scope of the principle of territorial integrity is confined to the sphere of relations between States” (Kosovo, para. 80), states can no longer rely on the international norm of territorial integrity to justify internal prohibitions on groups acting to promote partition. However, at the same time, states are under the obligation to respect the territorial integrity of other states, and thus cannot recognize new, seceding states. Consequently, the decision is mainly left to the discretion of the parent state, which more often than not curtails such demands (Sterio, 2018; Guibernau, 2015). International practice and law demonstrate a strong objection to nonagreed partitions. In addition, national minorities are not recognized as having the right to autonomy, thus leaving such groups lacking a recognized right to collective – external or internal – self-determination. Although the Kosovo advisory opinion reduces the illegality attached to national subgroups’ attempts at separate selfdetermination, it nevertheless leaves nondominant national groups with limited avenues for legitimate and peaceful action. In such a normative context it may not be surprising to find members of national minorities who advocate unilateral actions or perceive the use of force as the only avenue left for them for advancing their justified aspirations to self-determination. At the same time, states’ governments and ethnic majorities tend to perceive the forceful suppressing of minority demands as a necessary avenue for protecting their legitimate interests in preserving the territorial integrity of the state (cf. Keating, 2017). Despite all these obstacles and limitations, the possibility of territorial partition continues to be considered as a solution or remedy for self-determination conflicts. I therefore want now to turn to the experience of the four cases of Bosnia and Herzegovina, Northern Ireland, Cyprus, and Israel–Palestine, to demonstrate what the benefits and costs of partition look like in practice, and to get a better understanding of what can be achieved through territorial divisions, as well as what cannot be achieved and requires additional solutions. 3.5  PARTITION IN PRACTICE: EXAMPLES FROM THE FOUR CASES

3.5.1  Bosnia and Herzegovina Bosnia and Herzegovina was one of the six republics constituting the Socialist Federal Republic of Yugoslavia – Slovenia, Croatia, Serbia, Bosnia and

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Herzegovina, Montenegro, and Macedonia. Yugoslavia’s overall population prior to its breakup was estimated as 23.69 million. There were 8.14 million Serbs, 4.43 million Croats, 1.75 million Slovenes, 1.73 million Albanians, 1.34 million Macedonians, and 1.22 million “Yugoslavs” (a supranational category preferred by urban, younger, and educated citizens), as well as a variety of other minorities (Weller, 1992, 569). Each of the six republics essentially represented the territorial “home” of one of the Yugoslav nations, although only Slovenia was ethnically homogenous, with about 90 percent Slovenians (Craven, 1996, 368, fn 210). Prewar Bosnia and Herzegovina was by far the most multinational republic of the Yugoslav federation. Out of its citizenry, about 44 percent were Bosnian Muslims, 31 percent Serbs, and 17 percent Croats. The city of Mostar can demonstrate its ethnic heterogeneity. Of the 126,000 people living in Mostar and its suburbs in 1991, 35 percent were Croat, 34 percent were Bosnian Muslim, and 20 percent were Serb. The remaining 11 percent identified as Yugoslav (Bose, 2007, 107). Within the constitutional framework of the Yugoslav union, the accommodation of ethnic diversity included the dual equality of peoples (ethnically defined) and citizens. In practice, however, it was focused on the idea of the equality of its peoples and not on the equality of its citizens (Mujkić, 2008, 119–120). The equality between the peoples of Yugoslavia was assured in practice through a complex combination of a federal system (six republics, most of whom had one significant ethnic group) and the “ethnic key,” which meant that all positions from the top down were carefully allocated across ethnicities (Burg, 1977, 133; Gagnon, 2013, 73). This delicate balance of powers among ethnic groups was changed abruptly during the disintegration of Yugoslavia. In late 1991, several attempts at negotiated agreements were made but did not succeed. Marc Weller argues that the internal negotiation at the time failed mainly due to the intransigence of the Serbian leadership, induced by the international support for maintaining the territorial integrity of the federation. Weller assumes that this position undoubtedly strengthened Slobodan Milosevic, the Serbian leader, in his perception that flexibility was not required in negotiations (Weller, 1992, 569–570). This had changed following the recommendation of the commission established by the European Community to acknowledge Yugoslavia as being irretrievably in a “process of dissolution.” This judgment paved the way for international recognition in unilateral declarations of independence initiated by the six republics. Coupled with the principle of uti possidetis juris, Yugoslavia’s internal borders became the new international frontiers (Bose, 2007, 124). The territorial international fix tilted the imbalance away from the government of the larger Yugoslavia and into the hands of the local majorities. These developments

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paved the way for the partition of Yugoslavia and the creation of Bosnia and Herzegovina as a new independent state. At the end of 1991, the leaders of the Bosnian Muslims – the largest ethnic community in Bosnia and Herzegovina (44 percent) – decided to pursue Bosnia’s independence. To obtain a majority vote in favor of independence, they managed to secure the support of the leadership of the Bosnian Croats (17 percent). However, the initiative for Bosnia and Herzegovina’s independence encountered an objection from the leaders of the Bosnian Serbs, who protested that attempts to decide such a cardinal question through a majority vote were in violation of long-established local political norms of equality and consensus among groups (Bose 2007, 123; Burg, 1977; cf. Miller, 1995a, 111–112). With the collapse of the intergroup norms of the socialist period, Bosnian Serbs but also Bosnian Croats adopted the ideal of the nation-state, and aimed to secure homogenous territories for their nation. Accordingly, the leaders of the Bosnian Serbs objected to the intention to apply the uti possidetis juris principle to the internal boundaries of the Yugoslav union, demanding a redrawing of boundaries to better fit the ethnic composition. The aim of the Bosnian Serbs’ demands for redrawing the borders is clear – preventing their downgrading from a dominant nation within the Yugoslav union to a dominated minority within the newly independent state of Bosnia and Herzegovina. During the prewar political contestation over Bosnia and Herzegovina, all the Serbs’ demands – to maintain the Yugoslav union, to reject a majority vote as a legitimate decision mechanism for such cardinal decisions, and to redraw the boundaries of the unit of Bosnia and Herzegovina – were dismissed. The international community had recognized Bosnia and Herzegovina’s declaration of independence based on a referendum decided by a simple majority vote. The fact that the referendum was boycotted by the entire Serb community, constituting at least one-third of the population, did not prevent the recognition of the referendum as a legitimate popular vote, and by April 6, 1992, the United States and the European Community had recognized Bosnia and Herzegovina as a sovereign state. The hostilities that accompanied the referendum erupted into a war the same day (Bose, 2007, 124–125; Weller, 1992, 597–598). The partition of Bosnia and Herzegovina from the greater Yugoslavia did not resolve a selfdetermination conflict but ignited one. Departing from the norms of peoples’ equality and moving into a majority-governed nation-state took the previous power relations between the ethnic groups out of balance, abruptly positioning a dominant group at risk of becoming a dominated and excluded minority. Despite unequivocal declarations by the European Community and its member states that they would never accept a de facto situation created by violence (83 EPC Statement on Bosnia and Herzegovina, April 16, 1992,

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1991

1998

N

Croatia

Banja Luka

Croatia

Banja Luka

Brcko Brcko

Brcko Serbia

Serbia

Srebrenica

Srebrenica Areas with more than 75% Bosniaks

SARAJEVO

Croatia

SARAJEVO

Areas with 45%-75% Bosniaks Areas with more than 75% Bosnian-Croats

Areas with more than 75% Bosnian-Serbs

Mostar

Mostar

Areas with 45%-75% Bosnian-Croats

Montenegro

Montenegro Adriatic Sea

Adriatic Sea

Areas with 45%-75% Bosnian-Serbs

Map 3.1  Ethnic composition of Bosnia and Herzegovina before (1991) and after the war (1998).

quoted in Weller, 1992, 599), the war changed the approach toward the Serbs’ claims. The Vance–Owen peace plan, presented during the war, involved the division of Bosnia into 10 semi-autonomous regions. The plan was built on the premise that Bosnia’s population is “inextricably intermingled,” and that “there appears to be no viable way to create three territorially distinct states based on ethnic or confessional principles” (Report of the Secretary-General, S/24795, November 11, 1992). However, this was true during the early months of 1992, when only about 20 percent of Bosnia’s 110 municipal communities had an overwhelming majority of one ethno-national group. Only a year later, carved out through the strategy of “ethnic cleansing,” Bosnia’s demographic map had changed dramatically (Map 3.1). In January 1993 it was already too late for the Vance–Owen formula, as the once multiethnic country had been cruelly transformed (Bose, 2007, 129). The war, strategically fought to create mono-ethnic areas, made possible what had not been possible before – the territorial partition of Bosnia and Herzegovina into three distinct units. But while the “ethnic cleansing” made partition practical, there were strong reasons to preclude it. Any recognition of the division of Bosnia and Herzegovina’s territory would legitimize facts on the ground accomplished via atrocities. Yet despite the strong moral revolt, the new facts were stronger. Although full de jure partition was not sanctioned, substate (federal) partition was. According to the Dayton Agreement, Bosnia and Herzegovina would consist of two “entities” – a radically autonomous Serb Republic and a Federation of Bosnia and Herzegovina. The division between the two entities followed the front lines at the end of the war, with some territorial adjustments (Bose, 2007, 132–133). The establishment and recognition of the Serb Republic as an autonomous entity were the key

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concessions to Bosnian Serb demands. The parallel demands of the Bosnian Croats, also aspiring to an autonomous region, were not accepted and led instead to the division of the Muslim–Croat entity into 10 cantons, with most powers devolved to them. This was a key concession to the Croats, outnumbered four to one by Muslims within the federation areas (Bose, 2007, 133). The complex political arrangements agreed upon in Dayton designed to avoid ethnic domination were needed, as no partition (either full or partial) alone was able to provide an agreeable solution to the conflict. In the retrospective opinion of Lord David Owen of the UK, who from 1992 to 1995 co-led the EU’s mediation efforts in the Croatian and Bosnian conflicts, both decisions – to insist on the principle of uti possidetis juris, and the early recognition of the subunits as independent states – were great follies (Bose, 2007, 125). However, these two follies were not accidental. Rather, they were symptoms of more general and deeper problems – the strong attachment to territoriality, and confusion regarding ethno-national collectives and the way they should be treated by international stakeholders and international law. The case of Bosnia and Herzegovina illustrates vividly the limitations of territorial partitions as a solution to ethno-national conflicts, and the essentiality of considering the interests of political units not only based on territorial definitions. At the first stage, the unilateral partition of Bosnia and Herzegovina from the Yugoslav union, which was sanctioned with no sensibility to its effects on the interethnic power balance and internal ethnic loyalties, triggered a subsequent attempt by Serb nationalists to prevent it militarily. Predisposed by the territorial preferences of the international legal rules (territorial integrity; uti possidetis juris) and the parallel rejection of ethnically based nationalism, central players within the international community ignored pressing interests of the ethno-national groups involved and provided “fuel” for mobilization and conflict. Later, in the early stages of the war in Bosnia and Herzegovina, partition did not seem to offer any practical solution, due to the intense ethnic mixing across the land. But after ethnic cleansing made partition of Bosnia and Herzegovina feasible, moral considerations and international legal rules – mainly the norm of territorial integrity – curtailed partition. 3.5.2  Northern Ireland Thomas Agar-Robartes, a British Liberal Member of Parliament (MP), said in 1912: “Ireland consists of two nations different in sentiment, character, history, and religion. I maintain it is absolutely impossible to fuse these two incongruous elements together. It is as impossible as to try to reconcile the irreconcilable” (quoted in Lynch, 2019, 9). Following the Anglo-Irish treaty of 1921,

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North Channel

Londonderry Derry NORTHERN IRELAND (U.K) Belfast

Irish Sea DUBLIN North Atlantic Ocean

Celtic Sea

Map 3.2  Map of the island of Ireland. White represents the Republic of Ireland, gray represents Northern Ireland.

the Irish island was partitioned: 26 counties, populated by a Catholic majority, become the Irish Free State (and later the Republic of Ireland), while six counties with a Protestant majority in the north remained part of the UK (Map 3.2) (Keogh, 2005). The partition was far from being clean-cut, as significant Catholic and Protestant minorities were left on the “wrong side” of the new borders and it swept away a vast array of traditional institutions, mentalities, and certainties (Lynch, 2019, 12). For the people of the island, it did not provide a final, peaceful settlement of the conflict between the two peoples, but rather the start of a long, distressing – painful and violent – journey during which new identities and political cooperation would need to be rebuilt. The “Troubles” that broke out in the late 1960s were in fact a continuation of the older, centuries-long conflict between the Irish and British over the island. However, in this round of the conflict partition was no longer seriously being considered. Indeed, during the Troubles residential patterns in Northern Ireland had changed – the segregation between Catholics and Protestants was enhanced by deliberate intimidation, particularly during the early 1970s (Cairns & Darby, 1998, 757), but continued and was cemented

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N

North Channel

Londonderry Derry

Belfast Belfast

Areas with more than 65% BritishProtestants Areas with 50%-65% British-Protestants Areas with 50%-65% Irish-Catholics Areas with more than 65% IrishCatholics

Map 3.3  Map of predominant national identity in the 2011 census in Northern Ireland.

in different ways, including physical barriers (for example, through security or “peace walls” in Belfast) and social patterns (Nagle, 2009; Hughes, 2014). Nevertheless, the two communities remained living side by side in great proximity, either in nearby neighborhoods (in Belfast, Derry/Londonderry, etc.) or in close-by villages and other settlements (Map 3.3). Consequently, there was no reasonable line that divided Protestant and Catholic areas in Northern Ireland and the idea of repartitioning the island was not raised as a serious option (McGarry & O’Leary, 2004, 104). One exception was a 1984 proposal, a briefing paper drafted by civil servants that was submitted to the then prime minister Margaret Thatcher. The proposal laid out a formula to end the conflict in the region by redrawing borders to “produce a more homogeneous population in Northern Ireland.” It was said that this could be achieved by ceding more than half of the geographic area of Northern Ireland to the Republic of Ireland, thus transferring 500,000 Irish Nationalists to the south in the process. Thatcher’s cabinet rejected the suggestion based on impracticality (Nagle & Clancy, 2014). As partition was no longer viewed as feasible, the unavoidability of political cooperation between the two communities based on fairness and equality was recognized, initially by Catholic political leaders (SDLP), British civil servants and government (Secretary of State for Northern Ireland, 1972; 1973),

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N

Rizokarpaso Mediterranean Sea

Areas with 100% Turkish Cypriots Areas with 70%-99.99% Turkish Cypriots

NICOSIA

Areas with 50%-69.99% Turkish Cypriots

Pollis

Areas with 100% Greek Cypriots Larnaca

Areas with 75%-99.99% Greek Cypriots Areas with 50%-74.99% Greek Cypriots Areas with 85%-99.99% Maronites

Vasilikos

Paphos Limassol

Mediterranean Sea

Map 3.4  Map of predominant ethnic identity in Cyprus.

and moderate Unionists (Sunningdale Agreement, 1973; Hennessey, 2016, 76); and three decades (and more) later by the vast majority of the island’s citizens. Indeed, partition in the Irish context was initially conceived as an unavoidable, cheap, and quick solution to the conflict between the Irish, the British government, and the Protestant British settlers in Ulster. In the end, it evolved into a generations-long process that cost a fortune. More importantly, to overcome the violent conflict, the various parties to it were unable to escape what was portrayed at first as inconceivable – finding a way to live together based on political cooperation. 3.5.3 Cyprus When Cyprus’ independence from colonial rule was discussed, its ethnic demography, like that of prewar Bosnia and Herzegovina, was of a highly mixed island, with both communities widely dispersed throughout the island and not distributed on ethnic lines (Fisher, 2001, 309). Although a process of ethnic homogenization was recorded already during the first half of the twentieth century (Gürel et al., 2012, 5), intense ethnic intermingling was maintained. As of the mid-1960s, out of the total number of 634 villages and towns, 114 were mixed. Purely Greek or Turkish villages were side by side, only a few miles apart, or often adjacent to each other (Map 3.4) (Panagides, 1968, 134). This was a major reason why partition of the island had been said to be “costly and economically unsound, apart from the fact that this would perpetuate the conflict” (Panagides, 1968, 134, 137).

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Map 3.5  Map of Cyprus showing the north–south divide.

This social composition changed dramatically between 1963 and 1975. Starting with the constitutional crisis at the end of 1963 and the outbreak of intercommunal violence, many Turkish Cypriots were pushed to resettle in separate enclaves. During the following months of violence, some 25,000 Turkish Cypriots and 1,500 Greek and Armenian Cypriots were displaced (Patrick & Bater, 1976; Gürel et al., 2012, 7). The ethnic separation culminated during the Turkish military invasion of 1974. Accompanying the Turkish military gaining control of the northern part of the island, the majority of Turkish Cypriots from the south and Greek Cypriots (including the other Christian minorities) from the north were displaced, and fled to their respective territorial units (Gürel et al., 2012, 9). A year later, in August 1975, the two leaders of the Greek Cypriot and Turkish Cypriot communities – Glafkos Clerides and Rauf Denktash – reached an “Agreement on Voluntary Regrouping of Populations,” which paved the way for further population exchanges (Michael, 2009, 48). By the end of 1975, almost all the 162,000 Greek Cypriots (including the other Christian minorities) that inhabited the area to the north of the divide had fled or moved to the south. In parallel, Turkish Cypriots from the south, estimated at about 48,000, headed to the north. This transfer came in addition to the previous 12,000 Turkish Cypriots who had already been displaced during the intercommunal strife of 1963–1964 and were living in enclaves situated in the northern part of the island (Gürel et al., 2012, 9). These population transfers recreated the island of Cyprus as two ethnically homogenous units (Map 3.5). The demographic separation between Greek Cypriots and Turkish Cypriots has been supported and maintained through the movement regime on the island, as until 2003 Cypriots were virtually unable to travel between the two parts.

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Cyprus is a unique case in which the alleged national ideal of self-determination – the creation of ethnically homogenous territories – has materialized. The ethnic separation parallels a political separation: the Republic of Cyprus in the south and the Turkish Republic of North Cyprus have functioned de facto since 1974 as two separate political units, governing Greek Cypriots and Turkish Cypriots, respectively. These conditions seem perfect for resolving a self-determination conflict through partition. Nevertheless, this political reality did not receive de jure international recognition. One should wonder why, under these conditions, all efforts so far have been directed toward reunification of the island into one political unit. These efforts seem even more questionable considering the recurring failures to reach such an agreement. One possible explanation refers to other crossborder social and national dimensions, among them the aspirations of Greek Cypriot refugees to return to their original villages and homes in the northern part of the island and for restitution of their private property. However, what seems to play a more prominent role is the fact that the recognized state of Cyprus continuously objects to such a partition. This position of the Republic of Cyprus enjoys strong international legitimacy due to the international legal and political commitment to protect the territorial integrity of recognized states (Richmond, 1999; Section 3.4). Indeed, the demand for reunification and rejection of any partition as a peaceful settlement of the conflict has been the ongoing strategy of the Greek Cypriots. Utilizing its superior international status as a recognized sovereign state, the Republic of Cyprus – which is in practice the Greek Cypriots’ state – succeeded in securing several decisions from the UN General Assembly and the Security Council, stressing the applicability of the principle of territorial integrity to the Cypriot crisis. The Turkish Cypriots’ attempts to secure recognition of their right to collective self-determination, first by declaring independence as part of a federative state of Cyprus and in 1983 as an independent state, were subsequently rejected. 3.5.4  The Israeli–Palestinian Conflict Israel–Palestine is a paradigmatic case where partition has been envisaged, from the partition plan of 1947 to this day, as the ultimate – inevitable, and easiest – solution. However, a closer look reveals the limitations, grave human costs, and dangers of that strategy. Following the 1947 UN partition plan and the subsequent declaration of independence of Israel, the previously ethnically intermixed territory of mandatory Palestine was brutally divided during the 1948 war. The partition of the land involved a massive transfer of around 700,000 people, mostly Palestinians (Beinin & Hajjar, 2014), and massive

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destruction and loss of property and ways of life. Despite this local experience, partition has remained a prominent solution to the conflict. According to the more detailed peace plans – such as those put forward by the Geneva Initiative (also known as the Geneva Accord) – the proposed partition is along the 1967 border with some “swaps”5; that is, border changes that will allow for the maximum number of Jewish settlers now residing on the other side of the 1967 border to reside within the sovereign state of Israel. But even by the most optimistic assessment, around 100,000 Jewish settlers remain on the other side, residing in the territory of the future state of Palestine. The dominant perception of the two-state partition formula assumes that these settlers must be evacuated from their homes and relocated within Israel. Several reasons seem to support such an assumption, among them the illegality of the settlement project in the West Bank, grave mistrust, and the perception that demographic separation is needed for security reasons and to enable the existence of two nation-states. Partition without relocation of the settlers would entail leaving the Israeli Jews currently living in the West Bank as a minority within the new Palestinian state, and potentially, if complementary arrangements between the two neighboring states are not set in advance, it might lead to the settlers being isolated from the nation-state and politically helpless (cf. Miller, 1995a, 114). Furthermore, from a nationalistic point of view, agreement to such a political scheme violates the basic ethical obligations owed to members of a national group, and thus might even be conceived as an act of betrayal (compare a popular Catholic view of the Irish agreement to the partition of Ireland). Using partition to resolve the Israeli–Palestinian conflict requires that the border will run through the city of Jerusalem, as the 1967 borders – recognized as the legitimate international borders (Construction of a Wall in the Occupied Palestinian Territory, AO ICJ Rep 136) – divided the city prior to its 1967 occupation by Israel. Consequently, the assumption of the Israeli– Palestinian peace process is that the borders of the two states will also need to divide the city itself. To separate neighborhoods of Jews and Palestinians in Jerusalem, an extremely winding barrier would need to be erected, as the Jewish and Palestinian neighborhoods are intermingled in East Jerusalem because of years of Israeli policy of building Jewish neighborhoods there. This division would bring about grave practical problems, and will need to be accompanied by a huge and costly infrastructure of roads, bridges, and tunnels to connect adjacent areas of the two states that otherwise would be 5

The 1967 borders follow the armistice demarcation line between Israeli and Arab forces (often called the “Green Line”) that was included in an agreement signed in Rhodes on April 3, 1949.

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Ramallah

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Map 3.6  Map of Jerusalem showing the Geneva Initiative proposal for separation in Jerusalem.

detached (Geneva Initiative, 2021). A glimpse at the proposed borders of the traditional two-state solution, as they are envisaged in Jerusalem, will help to understand the complexity of such a division (Map 3.6). But the obstacle of ethnic heterogeneity is not only due to Jews residing in a future Palestine. Within the state of Israel are approximately 1.7 million Palestinian Arabs and 350,000 residents of East Jerusalem (together constituting 20.9 percent), out of a population of around 9.45 million (Map 3.7). While the Geneva Initiative, as well as almost all official peace negotiations, did not suggest changes to their status or place of residency, the “logic” of demographic separation has its own force. As mentioned earlier, building on this logic, Avigdor Lieberman, a prominent Israeli politician, initiated in 2004 a plan that called for the exchange of populated territories between Israel and Palestine as part of an Israeli–Palestinian peace agreement, in order to safeguard a Jewish demographic majority of 80 percent within Israel. This logic also informed President Trump’s plan from 2020, which acknowledged an Israeli right to transfer Arab-populated areas of Israel to Palestine (White House, 2020; Dekel et al., 2020). Yet the limitations of partition in Israel–Palestine do not end with the demographic mixture of Jews and Palestinians across the land. Partition also runs against Palestinian refugees’ demands for repatriation to their homes from which they were displaced during the 1948 war, and for restitution of their private property within the state of Israel (Khalidi & Elmusa, 1992). In addition, partition pays no respect to either of the two national ideologies according to which the whole land of Palestine/Eretz Israel is the homeland

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Map 3.7  Demographic map of Israel/Palestine, 2021, with a focus on built-up areas of cities, villages, and small communities based on a map produced by Bolter21.

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of Palestinians/Jews, respectively. Hence, when evaluating the advantages of partition as a solution to this conflict, it is essential to consider its limitations and dangers in the face of the complex and mixed social reality. 3.6 SUMMARY

Most scholarly debate about partition as a solution to ethnic wars is characterized by dichotomy – opponents of partition show why it only causes further violence, or at least does not significantly reduce the risk of violent conflict, while proponents argue why partition and separation is the only effective solution to prevent further severe ethnic violence. Alongside the scholarly debate, the establishment of an independent sovereign state remains the aspirational goal of many national groups struggling for self-determination. But in the world today, fulfilling this goal, in almost all cases, requires the partition of an existing state and dividing ethnically mixed territories. First, partitioning a state encounters severe obstacles. Existing norms of international law, which are heavily based on territorial definitions and on disregard of ethnic definitions of peoplehood, legitimize states’ preferences to maintain their territorial integrity and prohibit nonagreed partitions. The rejection of unilateral partitions is not accompanied by a legal framework that encourages states’ governments to seriously consider self-determination demands raised by nondominant national groups. Consequently, most often, demands for partition of an existing state encounter rejection by the parent state, a rejection that is legitimized by the international legal norm of territorial integrity. Second, separating the population should be rendered unattainable. In some cases, like Cyprus at its independence, Bosnia and Herzegovina before the war, or Northern Ireland, because of the intense ethnic intermixing across the disputed territories territorial partition is wholly impractical, as it is unable to create homogenous, or largely homogenous, territories for the different ethno-national groups. However, even in cases where the demographic dispersal makes partition seem practical and where international law supports it – like during the disintegration process of Yugoslavia, or in the Israel–Palestine case – its application will create new ethnic minorities and new aspirations to ethnic homogenization, and thus to the reshaping of the conflict, not to its solution. Recognition that mass population transfers is not a tool of peacemaking means that ethnic homogeneity is unattainable, and that the presence of members of the rival ethno-national groups in the same political territorial unit is maintained. This “remaining” ethnic intermixing is not “just” an internal problem of the relevant state, but a foundational condition

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that goes to the heart of the conflict itself and hence to the heart of its possible peaceful settlement. As we have seen in Chapter 2, national groups tend to think about themselves in ethnic terms and share special ethical obligations toward other fellow nationals. These ethical feelings and obligations continue to hold even when new political borders divide the group’s members, clarifying why the issue of national minorities has always been closely connected to international peace and stability. The significant point is that we cannot expect peace to be built only on a strategy of partition and the establishment of a new independent state. What is required is a more nuanced, less binary approach that does not present partition as the absolute solution to conflict on the one hand, or an absolute disaster on the other hand. Such an approach can appreciate the advantages of partition – as a tool for achieving national self-determination – together with due regard to its limits. Addressing the limits of partition in contemporary ethno-national conflicts requires that reasonable and effective peace plans should aim to accommodate the continued presence of people from the rival ethno-national groups, as well as other cross-border interests and loyalties. Existing international law does not recognize a right of national minority groups to collective self-determination, either in the form of independent sovereign states (external self-determination) or in the form of autonomy or other arrangements of internal self-determination. To compensate, the law assumes that their interests can and should be addressed by their “parent” state (Human Rights Committee, General Comment No. 12, 1984). According to the opinions of human rights bodies, the obligations of states should include constitutional arrangements – aimed at the inclusive participation of all segments of society, as well as the exercise of individual rights, exercised “individually and in community with others” (Article 3(2), Framework Convention for the Protection of National Minorities). However, to what extent does this liberal framework actually provide an adequate mechanism to protect and ensure the rights of members of national groups in deeply divided places? This crucial issue will be the subject of Chapter 4.

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4 Limitations of Human Rights

4.1 INTRODUCTION

We have seen that in sites of ethno-national conflict, national minorities frequently suffer from political exclusion and structural inequalities, the very same social conditions that liberal democracy and human rights contend with. It is therefore crucial to clarify whether liberal democracy and human rights frameworks succeed in practice and not just in theory to protect the interests and rights of national minorities in places of ethno-national conflict. Alternatively, in the case that liberal values and human rights are not yet adequately protected, can these frameworks be relied on to chart the path to secure them in the future, and thus also to reduce the likelihood of violent conflict and support the creation of peaceful relations (in liberal terms) in these places? We take as our starting point John Rawls’ political liberalism, which assumes that people in contemporary societies hold to very different, and irreconcilable, comprehensive doctrines of the good life (e.g., different religions). Assuming that liberal society is characterized by a “reasonable pluralism” of such doctrines, political liberalism aims to provide a political framework that is neutral between such controversial comprehensive doctrines (Rawls, 2001a, 3–4; Larmore, 1996, ch. 6; Courtland et al., 2022, sec. 3.1). While this neutral version of liberalism was designed to allow for the equal inclusion of all, it quickly become the subject of fervent criticism, both by liberals and others, as having neglected important human interests and not genuinely allowing for the accommodation of different social groups. Thus, other liberal conceptions for accommodating social diversity have developed. These include, among others, Joseph Raz’s perfectionist liberalism; Charles Taylor’s and Will Kymlicka’s multiculturalism; Iris Marion Young’s politics of difference; Yael Tamir’s and David Miller’s liberal nationalism; and Bhikhu 100

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Parek’s intercultural dialogue. The liberal aspirations to individual freedom and equality have, in parallel, also propelled substantial progress in the legal sphere, in particular in international human rights law and domestic constitutions. However, human rights have brought radical change not only to international law and domestic systems, but also to global politics. Labeled “the last utopia” (Moyn, 2012), they are said to provide “the vocabulary of justice for our globalizing world” (Macklem, 2015, 1). Despite these frameworks’ great promises (or perhaps because of them), prominent accounts of liberal justice and human rights (including minority rights) suffer from fundamental limitations when applied to situations of ethno-national conflict. The problem is not simply one of noncompliance by states with existing obligations, which can and should be resolved by more rigorous enforcement mechanisms. Rather, it reflects the material inadequacy of these frameworks in multinational settings, and especially in situations of group-based conflict. One central problem is related to an insufficient or even incorrect treatment of the primary actors in such settings: the ethno-national groups. This is linked to another central problem, which is the insufficient attention of both frameworks to the background social conditions and to questions of transition. What seems to be seriously missing is a systematic engagement with the question of how a progression toward durable peace can actually be achieved in varying social conditions (for example, in places emerging from colonial rule, or those lacking national unity), without violating contemporary moral and legal obligations, mainly the requirement to respect human rights and cultural diversity (leading, for example, to regard some of the old practices of “nation-building,” such as population transfers and coerced assimilation, as morally impermissible and illegal). A revision of the prominent liberal and human rights approaches is therefore needed. This chapter will start with a short exposition of liberalism and human rights doctrine. Then, I will present three prominent liberal theories that offer political systems the possibility of accommodating a plurality of identities and worldviews – political liberalism, liberal multiculturalism, and liberal nationalism – as well as sketching the prominent characteristics of existing human rights and minority rights legal protections. Existing research and the examples from the four conflicts show that liberal democracy and human rights have not succeeded, in fact, in securing freedom and equality for national minorities in areas of ethno-national conflict. So, the plausible limitations of the existing legal and theoretical frameworks need to be examined. While I identify a number of significant shortcomings in the existing accounts, it is important to stress that overall, much of what they offer can in

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fact be used to devise a theoretical approach more fit for common situations of intergroup conflict. This chapter therefore argues why a revision of these frameworks is needed to create a revised conception of justice, characterized by the idea of collective equality. 4.2  LIBERAL JUSTICE

As freedom is the basic normative value in liberalism, a central question of the liberal tradition is whether political authority – associated with the use of coercive means – can be justified and, if so, under which conditions. The proper role of liberal government therefore comes under question; that is, what kind of liberty and equality it should protect and secure, and what the shape of its basic structure should be: whether it should protect only individuals, or if groups can also be recognized and protected. Three fundamental liberal values demonstrate this: liberty, equality, and individualism. 4.2.1  Liberty, Equality, Individualism Liberty. The liberty of every person is the fundamental principle of “liberalism.” Alongside the fundamental principle of individual freedom, the liberal tradition forcefully disagrees on the meaning attributed to the concept of liberty, and consequently disagrees on the question of what the proper role of government is (Gaus et al., 2018, section 1.1). To Isaiah Berlin, liberty should be understood as the absence of coercion by others – negative liberty (Berlin, 1969). Others, such as T.H. Green, Charles Taylor, and Joseph Raz, believe that freedom is present only when one has effectively determined oneself and shaped one’s life – positive liberty (Green, 1986; Taylor, 1979; Raz, 1986). A third perception sees liberty as freedom from domination, from the arbitrary power of another, including the government – republican liberty (Pettit, 1996, 576). As will be explored further in Chapter 7, the idea of nondomination – which negates coercion and explores the conditions for self-determination in real-life situations, where self-determination cannot be achieved in isolation – plays an important role in the idea of collective equality. Equality. Since the French Revolution, equality has become the Grundnorm of ethical social relations (Rosenfeld, 2006). Nowadays, equality serves as one of the leading ideals of the body politic, whether as part of liberalism or not. While most scholars (liberals included) agree on the requirement of some form of human equality, they diverge extensively on the question of what human equality actually means (Gutmann, 1980, 1; Dworkin, 2000, 2). Notwithstanding theoretical disagreements, equality may indeed mean several

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different things, dependent on the specific context in which it is being used (for example, Rawls, 2001b, 12–14, 39). Situations of ethno-national conflict, as noted earlier, are often characterized by extreme conditions of social inequalities – caused by both past and present public policies and political structures. Therefore, and in line with collective equality’s understanding of liberty as being free from domination, the proper aim of equality in ethno-national conflicts should first and foremost be to eliminate social domination and to base the relationships in a society on being interdependent relations between equal-status persons (Anderson, 1999, 288–289). Therefore, equality as it is understood here focuses on equal social relations, in which the ideal of social equality is described as a condition of a society with an overarching equality of status among its members (Walzer, 1983; Miller, 1995b, 197, 199; Anderson, 1999; Wolff, 2010). Individualism. The Enlightenment narrative centered the individual’s equality and liberty through the elimination of difference – humans will be treated as equals, and not as members of any particular race, sex, class, or ethnic group. But over the last century, liberalism has increasingly been criticized for its excessively individualistic nature (Gutmann, 1980, 308). It has been argued that liberalism’s focus on individualism is unable to properly accommodate particular attachments – religious, national, cultural – which prevail in modern societies (Kukathas, 2003, 3). Since the late twentieth century, there has been a growing argument that the hoped-for liberation requires not the elimination of difference, but exactly the opposite. Differences – in the form of oppressed minorities – are to be empowered, not eliminated (Young, 1990; Taylor, 1992; Kymlicka, 1995; Kukathas, 2003). Various liberal scholars have since attempted to show how group-based memberships and other nonchosen attachments can find a place within liberalism. Yet, what these scholars have in common is the continued recognition that it is only the individual human being who morally matters (Buchanan, 2007, 158). Since group rights are found to provide protections for important interests of individuals – including their interests in their identity as members of a group – liberalism should accommodate them. Collective equality, which recognizes the centrality of individuals’ attachment to their national group, builds on this shifted understanding of liberal individualism. 4.2.2  National Community: The (Forgotten) Social Ontology of Liberal Democracy Is liberal democracy – as articulated by liberal justice accounts and human rights obligations – of universal application to all social conditions? Is it

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applicable “as is” to all places irrespective of historical contexts? John Stuart Mill considered nationalism to be an essential ingredient of a democratic society because he believed it to be vital for a representative government to have a common sense of belonging between persons of the public. Mill states, “when a people are ripe for free institutions, there is a still more vital consideration. Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist.” A case in point here is Mill’s definition of nationality: “A portion of mankind may be said to constitute a Nationality, if they are united among themselves by common sympathies, which do not exist between them and any others – which make them cooperate with each other more willingly than with other people, desire to be under the same government, and desire that it should be government by themselves, or a portion of themselves, exclusively” (Mill, 1977, ch. 16). As Mill’s assertions and assumptions about the aptness of some societies to liberal institutions are criticized as reflecting an imperialist and paternalistic approach (Gaus et al., 2018, section 4.1), it is therefore important to observe that other scholars, including contemporary sociologists and political theorists, tend to support related conclusions (Beetham, 1994; Miller, 1995a; Mouffe, 1997; Wimmer, 2002; 2013a; 2018a). Rawls’ accounts of liberalism also assume social solidarity, in the form of “common sympathies” (Rawls, 2001b, 23); the significance of nationalist solidarity plays a prominent role in Yael Tamir’s account of liberal nationalism (Tamir, 1993; 2019a), and David Miller argues for a link between nationalism and social justice (Miller, 1995a). Furthermore, contemporary concerns following the recent “backlash” against liberal democracy and human rights have brought renewed interest in the question of what actually builds and sustains solidarity in diverse societies. Keith Banting and Will Kymlicka find that solidarity is indeed important for the functioning of a liberal state, as self-interested strategic action alone is unlikely to generate a just society. They find that solidarity is sustained over time especially when it becomes incorporated into collective – typically national – identities and narratives and embedded in political institutions and policy regimes (Banting & Kymlicka, 2017, 2–3). As solidarity still seems to be significant to liberal democracies, then so too must nationalism, as a prominent modern force that induces solidarity. Since World War II, normative attitudes toward nationalism, especially its ethnic versions, have changed from being seen as a “natural” force, whose legitimacy is “taken for granted,” to losing legitimacy among many people

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who hold to liberal views (Fukuyama, 2018, 9). This postwar, revised justice ideal requires the state to protect and secure individuals’ rights and interests irrespective of their group affiliation, to avoid or downplay the state’s ethnic origins, and to prefer “civic” nationalism over ethnic nationalism and adopt religious “neutrality.” Thus, while the legitimacy of nationalism within liberalism declined, the concept of human rights began to play the prominent normative role. 4.3  ACCOMMODATING GROUP-BASED MEMBERSHIPS WITHIN LIBERALISM

Rawls’ theories depict the individualist-neutral liberal approach; he claims that in the face of a pluralism of worldviews – which must be regarded as inevitable in a liberal society – a liberal society can maintain social cooperation only if it is governed by a shared conception of (political) justice. Since there is no agreement on a unified set of comprehensive moral commitments, the state must be neutral toward all of them. Kymlicka’s theory reflects and contributes to the disenchantment about the individualistic and neutral approach and the turn to accommodate identity-based, group-related interests in the form of additional justice claims. Kymlicka, building on and diverting from Rawls’ work, maintains that the group-based injustices familiar in modern states are not, and will not be, corrected without providing for special rights to minority groups, focusing on both national (homeland) and ethnic (immigrant) minorities. Tamir, also building on Rawls’ work, develops an account according to which nationalist sentiments and national groups can be accommodated within liberalism. Tamir’s account (along with David Miller’s work on nationalism) responds to the largely unnoticed problem of liberalism’s growing hostility toward nationalism (of majorities). Tamir notes that while liberalism was opening up to group claims and group rights, it did so only partially, toward minority groups, while denying majorities explicit recognition. While there is a plethora of attempts within liberalism to grapple with the question of how a political society marked by cultural diversity and separate group loyalties can be sustained, I chose the three accounts of Rawls, Kymlicka, and Tamir as representing prominent liberal vantage points that offer three different answers to the question at hand. It may be argued that other accounts of liberalism – such as the perfectionist liberalism offered by Joseph Raz, (1988) – might be more suitable to the task of accommodating cultural diversity than Rawls’ individualistic and neutral version. However, the noncomprehensive, nonperfectionist version of liberalism that began with Rawls’ theoretical approach is more apt for the task at hand as I conceive it:

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to support a process aimed at achieving sustainable peace between opposing social groups, who hold to (at least partially) conflicting worldviews, and without assuming that these worldviews possess intrinsic value apart from the value ascribed to them merely because they are held by a significant group of people (Nussbaum, 2011). 4.3.1  Political Liberalism In Political Liberalism and elsewhere (Rawls, 1993; 2001a; 2001b), Rawls clarifies the assumption that freedom and equality are attributes that societies choose for themselves. To Rawls, domestic and international liberal societies can aspire to a realistic utopia: a reasonably just society not torn by an ongoing state of war (either within or between states). By realizing that such a vision is possible, we can also adopt and imagine a desirable direction of liberal progress. Rawls understands a permanent feature of liberal society to be profound and irreconcilable differences in citizens’ comprehensive “conceptions of the good” – religious, philosophical, moral, and aesthetic – and so we need a sustainable conception of justice set within a pluralism of worldviews. As there can be no agreement on a comprehensive moral conception (on substantive values, such as individual autonomy), the shared conception must be restricted to a political conception of justice; that is, a political organization of society based on reciprocity. The essential role of reciprocity derives from the way Rawls views the just society – whether domestic or international – as a  fair system of cooperation that respects the parties to it as free and equal (Rawls, 2001a, 5–8; 2001b, 14, 25, 33, 141, 143). Rawls’ two principles of justice specify the core terms of fair social cooperation for domestic justice that need to be fulfilled by the constitutional arrangements and other institutions that divide social and political powers (the basic structure of society). The first principle sets the primary obligation to secure “for each person the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all.” The second principle relates to distributive justice and maintains that any social and economic inequalities must satisfy two conditions, “first, they are to be attached to offices and positions open to all under conditions of fair equality of opportunity; and second, they are to be to the greatest benefit of the least-advantaged members of society” (the difference principle) (Rawls, 2001a, 42–50). As Rawls’ account is primarily based on the state’s neutrality and its obligations to secure equal individual rights, he discards special treatment of minority groups, since members of minorities, like members of the majority, are to be accorded the same scheme of liberties, and inequalities

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are to be addressed in a manner that creates the greatest benefit for the least advantaged. Rawls characterizes the correct attitude of the state toward differing worldviews and attachments as neutral; that is, the basic institutions’ neutrality (Rawls, 2001a, 153–157). The relevant test here is not “total neutrality,” but rather whether the basic structure proposed by justice as fairness is biased in an arbitrary manner against those doctrines that do not survive, or only barely survive. A state’s obligation to neutrality can also be viewed as the special kind of equality that is suitable for the treatment of “things” that (in contrast to human beings) lack intrinsic value; a kind of “free market” approach applied to the realm of worldviews and cultures. Indeed, Rawls rejects on principle the state giving value to specific worldviews, cultures, and communities, as he assumes that no stable political agreement can be reached on such matters. The limits of liberal tolerance, including tolerance of illiberal worldviews, are set by the concept of reasonable pluralism. The boundaries delimiting which comprehensive doctrines (religions, cultures, communities) are allowed and which are not are set by democratic values; that is, by endorsing a liberal political conception (Burton, 2003, 326; Nussbaum, 2011, 28). While enduring comprehensive doctrines that secure familiar equal basic liberties and mutual toleration are welcomed, Rawls clarifies that there is no way to preserve doctrines that do not secure these basic rights and mutual toleration (Rawls, 2001a, 155–156). Hence, Rawls acknowledges that there will be exclusion of some doctrines and that the basic institutions inevitably encourage some ways of life and discourage others. There are four major differences between the domestic and the international levels of justice in Rawls’ accounts of justice that are significant for the collective equality account: (1) the parties to the process and the participants in the social cooperation; (2) the kind of equality that will be agreed to; (3) the basic interests of peoples (versus primary goods of persons); and (4) a shift from vertical relations – between the state and its institutions and the individual members – to horizontal relations between states/peoples. These four differences require further explanation. First, unlike in domestic justice, the parties to the process of developing terms for fair cooperation at the international level are representatives of liberal peoples and not of individual human beings. Rawls, like Kant before him, rejects the idea of a world government and rejects the argument some scholars make that any liberal law of peoples, and particularly any social contract law of people, ought to begin by taking up the question of liberal cosmopolitan or global justice for all persons. He also objects to the construction of a global original position by which all human beings, including those who are living

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in nonliberal societies, are parties to, and hence would adopt, the principle that all persons have equal basic rights and liberties. This is because choosing individuals to be the parties to the original position for the international level entails imposing a liberal worldview on societies that have not chosen it for themselves. Such a choice contradicts the basic principle of political liberalism, which objects to imposing any worldview, including a liberal one (Rawls, 2001b, 82–83). As noted earlier, Rawls conceives of liberal peoples as sharing a nationality. Endorsing Mill’s concept, Rawls also assumes that such people have “common sympathies,” characterized by the unity of their citizens and a desire to be under the same government (Rawls, 2001b, 23). Rawls acknowledges the fact that most contemporary democracies do not fit this description of common sympathies. Yet, he constructs this simplified theory in the hope that the political principles that will emerge will “enable us to deal with more difficult cases where all the citizens are not united by a common language and shared historical memories” (Rawls, 2001b, 25). Second, regarding the kind of equality that will be agreed upon as part of the terms of social cooperation between peoples, Rawls assumes that while domestic justice entails an agreement to depart from a baseline of formal equality between individual members of the society, peoples “will want to preserve the equality and independence of their own society” and will not agree to divert from arrangements of formal equality (Rawls, 2001b, 37, 41). Rawls does not further explain this significant difference between the two cases, and I understand this disparity to be connected to the reasonable, expected sense of solidarity, to expectations about rights and obligations toward other co-members of the specific society and to the actual and perceived level of trust among them. Third, the basic interests of peoples include the protection of their political independence, security, territory, and the wellbeing of their citizens. A further interest of peoples, according to Rawls, falls under what Rousseau calls amour propre: “This interest is a people’s proper self-respect of themselves as a people, resting on their common awareness of their trials during their history and of their culture with its accomplishments” (Rawls, 2001b, 34). Fourth, in the domestic case, Rawls’ theory focuses on the state’s obligations and how it should act toward its citizens as the primary way to secure fair terms of cooperation between members of society. Hence, the theory of domestic justice focuses on vertical relations between the state and its citizens. In contrast, given the absence of world government, the rules for international society are characterized as horizontal relations between (equal) peoples. To summarize, while Rawls continues to hold to the primacy of the individual, in his political liberalism accounts (especially in The Law of Peoples) he

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also incorporates some elements from the “communitarian critique.” Despite withdrawing from a Kantian “comprehensive liberalism” and incorporating reasonable pluralism, Rawls maintains that neutrality between different “conceptions of the good” is the way to accommodate differences. Hence, his ideal theories reject the state recognizing group rights or granting positive support to any given group. Furthermore, Rawls’ liberal accounts retain the familiar clear dichotomy between the domestic and international levels of justice, and are consciously built on an unrealistic assumption of the state as united by one nationality common to all its citizens. 4.3.2  Liberal Multiculturalism Committed to the liberal ideals of individual freedom and equality, Will Kymlicka has argued that accommodating differences should be done differently – by adding to liberalism the recognition of minority rights. Against harsh liberal criticisms, which object to recognizing groups as rights holders (Barry, 2002; Jones, 2016, 23–29), multicultural accounts highlight the importance of recognizing minority cultures (Taylor, 1992; Honneth, 1996; Patten, 2014). Kymlicka, whose liberal theory of minority rights is the most prominent account of this position, holds that liberalism’s recognition and protection of individual rights are not sufficient, and that there is a need for a positive recognition and accommodation of group differences through “group-differentiated rights” (Kymlicka, 1995, 26–33). Kymlicka justifies this deviation from both neutrality and individualism with two major arguments: an equality-based argument (Kymlicka, 1995, 108–115) and historical agreements (Kymlicka, 1995, 116–120). The value of cultural diversity is also offered to support the deviation from neutrality, but only as a complementary consideration (Kymlicka, 1995, 121–123). The equality-based argument seems to be the most principled and potent of Kymlicka’s three points. According to this argument, “special” rights for minorities are necessary for true equality between the state’s citizens to be possible. Without such special rights for minority groups, they will continue to be treated and positioned unequally in the society. Their unequal position is also attributed to the fact that modern states are, in fact, not neutral, but biased in favor of the majority culture. Hence, recognizing special rights for minorities is needed to advance equality and therefore stands as a demand of justice. Despite growing acceptance of multiculturalist practices in Western countries, the theoretical foundations of multiculturalism are still disputed within the liberal tradition. Alan Patten attempts to reconceptualize liberal multiculturalism as a justified demand for equal recognition within diversified

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societies, and to explain it as a permissible variation of state neutrality toward different groups within the state (Patten, 2014). It is worth noting that the liberal multicultural account approaches the challenge of accommodating diversity primarily from the perspective of the disadvantaged minority groups and the risks imposed on them by majority cultures/nations. Thus, minority rights are imagined as a form of protection and a remedy by the sovereign state. Moreover, an indispensable assumption is that granting rights to minority groups – although this demands some price from the majority – does not impose a significant risk on the part of the state or the majority group. Assuming otherwise would be unpragmatic and questionable from a principled-justice perspective (regarding the “leveling down” objection to equality, see Brake, 2004; Anderson, 2007). The problem is that in some situations, especially situations of ethno-national conflicts, this assumption seems questionable. 4.3.3  Liberal Nationalism Yael Tamir, who is committed to the liberal ideals of individual autonomy and choice, suggests how liberalism and liberals can accept national groups via developing a “liberalized” account of nationalism. For that purpose, Tamir identifies and defends a distinctly liberal understanding of national rights by synthesizing individualistic and communitarian perspectives. According to Tamir, not only is the national tradition “with its emphasis on belonging, loyalty, and solidarity” not antithetical to the liberal tradition “with its respect for personal autonomy, reflection, and choice,” they can actually accommodate one another (Tamir, 1993, 6). Tamir justifies accommodating national collectives within liberalism by developing a robust account of nationalism as embodying group members’ essential interests in their common – national – culture, while that culture remains an object of choice (Tamir, 1993, 13–34). Subsequently, she equates an individual’s right to culture to (an individual) right to national self-determination, both being a way to allow individuals to lead a life they deem to be valuable, by allowing them to live within the culture of their choice (Tamir, 1993, 35–56). Therefore, Tamir argues, the right to choose the national group one belongs to should be recognized in the same manner, and for the same reasons, as the right to choose one’s religion and private way of life (Tamir, 1993, 35–37; Yack, 1995, 170–172). However, since culture is a communal feature, which can be fulfilled only together with others, it follows that the right to culture entails the right to a public sphere in which individuals can “share a language, memorise their past, cherish their heroes, live a fulfilling national life” (Tamir, 1993, 8).

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According to Tamir, the demand for a public sphere in which the cultural aspects of national life can be fulfilled reflects the essence of the right to national self-determination, and is distinct from self-rule and from the right to take part in governing political institutions. The distinction between the cultural demand for a public sphere and the political demand for self-rule (understood as a demand for a nation-state) is crucial to Tamir’s account. It allows her to address the inherent inequalities that the nation-state model generates, including both domestic and international injustices: domestically, injustices toward citizens that are not part of the national group; and internationally, injustices toward other national groups, which, although entitled to equal respect, cannot secure “their own” nation-state. Confining the legitimate national demand to a public sphere means that the legitimate demands of nationalism can be fulfilled through various other political setups, such as federal and confederal arrangements, local autonomies, or the establishment of national institutions (Tamir, 1993, 9). Indeed, even this more modest account of nationalism raises tensions with basic tenets of liberalism, and especially with state commitments to equality and neutrality. Tamir argues that neutrality can be abandoned, as it both is a mere theoretical illusion and does not provide real redress for the great injustices done to minorities. However, regarding equality, the interest of the national community in preserving the national character of its political entity, be it a state or a substate entity, remains the hardest to settle. This interest brings Tamir to distinguish between prudent restrictions on immigration, which she deems to be permissible, and restrictions on political participation of citizens, which are not permissible. 4.4  LEGAL PROTECTIONS OF HUMAN RIGHTS AND MINORITY RIGHTS

Human rights, most often understood as a claim for individual protection against the state, brought a radical change to the international and domestic orders. Although widely perceived as “natural” and as existing independently of political and legal recognition (Macklem, 2015, 1, 5), their ascendency as the modern version of the commitment to the cause of justice is said to be located in the 1970s, emerging as a moral alternative to bankrupt political utopias (Moyn, 2012, 3–17). Their inclusion in domestic and international legislation provides concrete ways to enforce them, including through the judicial system, and hence (allegedly) irrespective of political power (Medina, 2016, 11). The big promise of human rights, particularly when enshrined in binding international law and domestic constitutions, accompanied by powers

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of judicial review, is generally seen in its potential as a “weapon” of the politically weak, and as their ultimate protection against the powers of the sovereign state and its majoritarian politics. 4.4.1  Legal Protection of Human Rights: The Rights to Equality and Nondiscrimination Over the last decades, different human rights have been recognized in various international instruments, with almost all the world’s states recognizing at least some (with 172 states party to the 1966 International Covenant on Civil and Political Rights [ICCPR]). Existing international law recognizes a long list of human rights, including, for example, the right to life, to liberty and security, to freedom of movement, to freedom of expression, to housing, to an adequate standard of living, to healthcare, and many more. From the vast corpus of human rights law, it is evident that the principles of equality and nondiscrimination can be marked as the principles that lie at its heart. Equality, the equal respect for the rights of all – the idea that all rights and freedoms are granted equally to all persons – is essentially the idea that transforms individual rights or privileges into human rights (Osiatyński, 2014, 9). Given the vastness of human rights legal protections, I here focus on the legal right to equality and prohibition of discrimination as a window into the wider world of human rights protections. Furthermore, the updated understandings of the legal obligations to equality and nondiscrimination are fundamental to the idea of collective equality. Prohibition of discrimination is explicitly dealt with by almost every legal instrument concerned with human rights and fundamental freedoms (Makkonen, 2012, 96). The principles of equality and nondiscrimination are not only enshrined explicitly in the specific provisions that mention them, but implicitly in almost all human rights provisions, as these are usually worded in universal language, such as “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life” (Article 6, ICCPR, emphasis added). Traditionally, the legal protection of equality was understood as formal equality, manifested primarily in ideas of equality before the law and of equal treatment. However, as early as 1935 the idea that formal equality in law may not in fact be equal was upheld by the Permanent Court of International Justice ruling that Albania violated the minority rights of Greek nationals by abolishing Greek private schools. The court rejected Albania’s argument that it secured equal treatment by treating both the majority and the minority in the same way (Minority Schools in Albania, AO, 1935 P.C.I.J. (ser. A/B) No. 64).

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Despite the promotion and enactment of various sophisticated equality and anti-discrimination laws – in international, regional, and domestic legal systems – inequalities and discrimination persist (Nowak, 2005; Fredman, 2011; Makkonen, 2012). Nowadays, while Aristotle’s maxim that “likes should be treated alike” persists as the basis of our ideas about equality, legal scholars maintain that legal developments exhibit a paradigmatic shift from a formal to a substantive model of equality (Fredman, 2005; 2011; Arnardóttir, 2007, 140; O’Connell, 2009, 228; Makkonen, 2012). This shift comes from a growing awareness of the conceptual limitations of “likes should be treated alike,” most importantly from the recognition that in a context of preexisting disadvantages, equal treatment only perpetuates or even exacerbates inequality. This began with the US Supreme Court’s concept of “disparate impact,” which was imported into UK and EU law as “indirect discrimination” (Fredman, 2011). Unlike the formal concept of equality, which focuses on equal treatment and only guarantees consistency, the substantive concept(s) focus(es) also on results and on social and political structures that maintain disadvantage (Arnardóttir, 2007; Fredman, 2011). Although no one rationale can explain equality and antidiscrimination law, it seems that present-day human rights law reflects a growing recognition that much of contemporary discrimination is structural. 4.4.2  International Law of Minority Rights In contrast with the clear protection for individual human rights and parallel with the difficulties liberalism has with group rights, post–World War II international law’s attitude toward protecting group interests is much more ambivalent. In 1947 a shift in the international approach to the protection of minorities’ interests was made – from group protection that characterized the League of Nation’s former approach, to the protection of individual rights (ICCPR, Article 27; Lerner, 1993, 88–91). Due to the objections of “new world” countries, such as Latin American states, the USA, Canada, Australia, and New Zealand, the Universal Declaration of Human Rights does not contain a provision regarding the protection of minorities (Nowak, 2005). It was claimed that if individual human rights and the principles of nondiscrimination and equality were effectively implemented, special minority rights would not be necessary. The cautious approach toward minority rights is reflected also in the formulation of Article 27 of the ICCPR – the sole provision in the Covenant with only a negative formulation. This negative formulation was intentionally chosen to avoid stimulating minority consciousness. The Framework Convention for the Protection of National Minorities is established on the same idea:

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“The implementation of the principles set out in this Framework Convention shall be done through national legislation and appropriate governmental policies. It does not imply the recognition of collective rights. The emphasis is placed on the protection of persons belonging to national minorities, who may exercise their rights individually and in community with others (Article 3, paragraph 2)” (Article 13, Framework Convention for the Protection of National Minorities, Explanatory Report, emphasis added). However, the individual-centered system, even when combined with antidiscrimination laws, proved unable to adequately protect individuals belonging to minorities from discrimination. A new trend began in favor of group protection – supported by various scholars, international lawyers, and activists (Thornberry, 1989; 1992; Lerner, 1993, 91–98; Kymlicka, 1995; Hannum, 1996; OHCHR, 1998; Henrard, 2000; Skrentny, 2002). Minority groups’ ongoing demands and growing awareness of the persisting inequalities and marginalization these groups suffer from have brought about theoretical developments that framed those demands as claims of justice. Special minority rights have been justified by the principle of substantive equality, which is also presented as confining the scope of these rights (Henrard, 2000, 13). In practice, during the 1970s, in parallel with the rise of the universal human rights movement, a new trend of recognizing collective rights began to emerge, and since the 1980s the international community has undertaken various efforts to address minority rights (Thornberry, 1992; Anaya, 2004). Among those efforts are the assignment of UN task forces, special rapporteurs, and the drafting of several international documents recognizing minority rights. This development is reflected in the legal developments concerning minority rights, which include the 1992 Minority Rights Declaration; the Human Rights Committee’s (HRC) innovative interpretation of Article 27 of the ICCPR, recognizing the collective aspect of the rights enumerated (Human Rights Committee, General Comment No. 23, 1994; Kitok v. Sweden, 1988, Comm No 197/1985; Apirana Mahuika et al. v. New Zealand, 2000, Comm No 547/1993); and, most notably, the 2007 UN Declaration on the Rights of Indigenous Peoples (DRIP), recognizing the collective right of indigenous peoples to internal self-determination in the form of “autonomy or s­ elf-government in matters relating to their internal and local affairs” (Article 4; see also the 1989 ILO Convention 169, ratified by 23 states; Tiina Sanila-Aikio v. Finland, 2019, Comm No 2668/2015). Minority rights are also recognized in various regional human rights law instruments in Europe – in the European 1995 Framework Convention for the Protection of National Minorities and the 1999 Lund Recommendations on the Effective Participation of National Minorities in Public Life; in Africa – in the African

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Charter of Human and Peoples’ Rights;1 and in the Americas – in the American Convention on Human Rights.2 4.4.3  Bills of Rights Bills of rights are now widely accepted as a central component of liberal democratic constitutions. Although bills of rights were adopted as early as the late eighteenth century (with their inclusion in the American and French constitutions), their contemporary role reflects a fundamental shift in democratic design. According to Sujit Choudhry, “A bill of rights that is entrenched and supreme over legislative and executive action, backed up by judicial review by independent courts, is now what we associate with a normal state, and the onus of justification has shifted to those wishing to omit these arrangements from any new constitution” (Choudhry, 2010, 303). Indeed, the dominant perception today in the liberal democratic world is that the obligation to respect human rights is an essential part of the law that even parliamentary legislation must uphold (Medina, 2016, 22). The expectation is that such bills of rights will constrain abuses of public power and provide protection for the rights and interests of minorities, both in consolidated democracies and, according to some, even more so in new democracies (Biagi, 2020, 203). However, a critical evaluation reveals a persistent gap between the expectations people have of liberal democracy and human rights and the political reality, with the biggest challenges found in deeply divided places, where the relations between minorities and majorities are conceived as a matter of national security. 4.5  LEGAL AND PRACTICAL SHORTCOMINGS IN SITES OF ETHNO-NATIONAL CONFLICTS

4.5.1 Introduction In recent years, the limits of human rights law and doctrine in the face of contemporary world problems have received growing attention (Osiatyń́ski, 2009; Coomaraswamy, 2014; Moyn, 2018). In his comprehensive research on equality and antidiscrimination in Western European countries, Timmo Makkonen finds that despite significant developments in equality and nondiscrimination laws (legislative and judicial), inequalities and discrimination are 1 2

See for example Endorois Welfare Council v. Kenya, ACHPR 276/2003. See for example Saramaka People v. Suriname, IACtHR (November 28, 2007); Xákmok Kásek Indigenous Community v. Paraguay, IACtHR (August 24, 2010).

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still pervasive, even in these consolidated democracies (Makkonen, 2012). He writes, “yet the strides made cannot overshadow the impression that something is still seriously wrong. Seen from the perspective of victims of discrimination, the protection offered by the law amounts to not much more than a camouflage” (Makkonen, 2012, 278), and continues by observing, “The greatest single obstacle for making major advances in the fight against discrimination is the individualist orientation of the law and the consequent individualization of the fight” (Makkonen, 2012, 280). While preventing individual acts of discrimination is important, it cannot address the deeper causes of enduring discrimination, which are rooted in group-based disadvantages and in the hegemonic group’s (usually) unnoticed biases. The inadequacy of current human rights in dealing with the problems of inequalities and discrimination in diverse but peaceful situations such as Western European countries is multiplied when we approach deeply divided places. Unlike the hidden discrimination that characterizes Western European countries, group divisions and marginalization on ethnic grounds in places riven by conflict are far more explicit. As was noted earlier, contemporary legal scholars advocate that a substantive concept of equality be adopted, placing a significant focus on the results of legal mechanisms, and on the social and political structures that maintain disadvantage (Arnardóttir, 2007; Fredman, 2011). 4.5.2  Legal Shortcomings of International Law of Minority Rights However, the international law of minority rights – considered as one of the important legal mechanisms to correct systemic disadvantages of minority groups – suffers from two main interrelated weaknesses: the shortcomings and inconsistencies of the international legal framework, and the law’s level of endorsement by domestic legal systems. In the international legal system, the more progressive laws regarding minority rights do not accord the same protection to all minority groups, and wrongly distinguish between indigenous peoples and national minorities. The DRIP – generally regarded as a significant milestone in the international legal recognition of minority rights – recognizes special minority rights only in regard to indigenous peoples, excluding national minorities. As Kymlicka has argued convincingly, it is hard to justify the distinction made by the indigenous peoples’ declaration between indigenous peoples who have been recognized as owning a (limited) right to self-determination and national minorities, especially homeland minorities, which were not recognized (Kymlicka, 2007b). The lack of equivalent recognition of both types of groups is puzzling, as “all

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of the moral principles and arguments invoked at the UN to defend indigenous rights also apply to national minorities” (Kymlicka, 2007b, 12). As the distinction between indigenous peoples and other homeland minorities is conceptually unstable and difficult to draw outside the original core cases of Europe and the “new world” countries, and since international law endows only indigenous peoples with self-determination rights, “all homeland minorities have an overwhelming incentive to define, or redefine, themselves as indigenous peoples” (Kymlicka, 2007b, 16). Thus, Article 27 of the ICCPR remains the only binding norm with universal applicability (Nowak, 2005). Despite broadening interpretation, the rights protected by Article 27 to culture, religion, and language remain modest, and certainly do not address the pressing problem of entrenched discrimination across the board. States’ detailed commitments toward their minorities, like other legal protections of human rights, depend on domestic legislation; that is, domestic decision-making and domestic politics (Wheatley, 2005, 6). Due, at least partly, to the limitations of the international legal framework of minority rights, the domestic deliberations regarding national minority rights are conducted within a normative framework in which states bear no explicit legal obligations to grant more rigorous protections to national minorities. In practice, many states are reluctant to accord wide recognition of minority rights and avoid adopting more advanced minority rights schemes (Torbisco-Casals, 2016, 375–377). This avoidance is not limited to states’ governments, as scholarly accounts point to the limitations also of the judicial system to accord genuine remedy to minority groups. Possible reasons for such shortcomings include biased or politicized judiciaries and constitutional underenforcement (Torbisco-Casals, 2016; Choudhry, 2010). As we will see shortly, such reluctance to accord special rights to minority groups is particularly strong in places where ethnic relations between the majority and the minority are “securitized”; that is, perceived as an existential threat to the state and its dominant national group (Kymlicka, 2007; 2007b, 16; 2007c). Kymlicka’s insistence that international law norms must be perceived as a minimum from which negotiations between the state/ majority and the minority regarding additional rights can progress (Kymlicka, 2007, 309–315) seems to be far removed from the prevailing practice in general and in places of ethno-national conflict in particular. 4.5.3  Shortcomings of the Legal Human Rights Approach: Example from Israel–Palestine The current situation in Israel, frequently considered as a liberal democracy (Yakobson & Rubinstein, 2008; Medina, 2021), is illuminating.

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Arab-Palestinian citizens of Israel, a sizable national minority that according to Israel’s Central Bureau of Statistics as of 2021 comprises 21.1 percent of the state’s citizens, suffer from historical and systematic discrimination. While the state declares its commitment to secure individual equality to all citizens, including members of the Arab-Palestinian minority, and allows for some autonomy in the fields of education and religion (for a critical appraisal see Karayanni, 2018; 2020), it continuously excludes them from central decisionmaking (with Bennet and Lapid’s coalition government from June 2021 as the first government of Israel that includes an Arab party) and denies recognition of their national identity. Thus, despite significant changes in state and judicial policies toward Arab-Palestinian citizens since the 1990s, the problems of structural discrimination and their perception as a security threat continue to characterize their treatment by the state and its Jewish majority (Medina, 2016, 342–375; see also Ganim, 2001; Kretzmer, 1990; Stopler, 2016; Rouhana & Sabbagh-Khoury, 2015). But even more blatant and extreme exclusion and discriminatory treatment are inflicted upon the Palestinian residents of the occupied Palestinian territories. Unlike the Arab-Palestinian citizens of Israel, Palestinians who reside in the West Bank and Gaza are not accorded Israeli citizenship, but are rather “residents” of those territories (Palestinians who reside in the territories of East Jerusalem annexed in 1967 are residents of Israel in status). The difference in status emerged from the international recognition of these territories as “occupied territories” under international law, since their occupation by Israel’s armed forces during the 1967 war, and from the Israeli decision to administer these territories by military rule (excluding East Jerusalem, which was annexed to Israel). Due to the mass transfer of Israeli citizens as part of the Israeli settlement project, approximately 490,000 Israelis now reside in the West Bank, in addition to more than 200,000 Israeli Jews living in East Jerusalem. While the military regime continues to be the legal framework that Israel applies to Palestinian residents in the West Bank, the legal framework applying to Israeli citizens living in the West Bank settlements is different and largely resembles the Israeli legal system. The result is that under one rule, and in the same territory, the legal system defines two classes of inhabitants that are governed by two different legal frameworks: a civilian legal system for Israeli citizens, and a military legal system for Palestinian residents (Dugard & Reynolds, 2013; Yehuda et al., 2014; Sfard, 2020). While earlier scholarly accounts have already raised the argument that the territorial division is misleading, and that the discriminatory treatment of Palestinians needs to be analyzed in the entire territory found under Israel’s control (Yiftachel, 2005; Azoulay & Ophir, 2012), human rights

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accounts have only recently abandoned the analytical separation between “flawed” democracy within Israel proper (i.e., within the “Green Line”) and severe human rights violations under the Israeli control of the West Bank and Gaza. Propelled by a change in official Israeli statements, including the declaration of intentions to annex the West Bank or some parts from it and the enactment of “Basic law: Israel – the nation-state of the Jewish people” in 2018, which enshrines the Jewish people’s right to selfdetermination to the exclusion of all others, new human rights reports have raised the charge that Israel is practicing a policy of apartheid against the Palestinian population in the entire area under its control (and not only in the West Bank) (Ben-Natan, 2022; B’tselem, 2021; Human Rights Watch, 2021; Amnesty International, 2022; United Nations Economic and Social Commission for Western Asia, 2017; Joint Parallel Report to the United Nations Committee, 2019). As a state declared by its founding documents to be a democracy, which aims to hold, or at least to be perceived to hold, to its international obligations according to international human rights and humanitarian law, Israel is required – before both international and domestic forums – to justify such explicit unequal treatment. In practice, inequalities and discrimination sanctioned by law or by public policies are frequently backed by public, and legalized, justifications. The stated criterion for the different treatment of Palestinian residents of the West Bank and Israelis living in the same areas is their citizenship: Israeli Jews are citizens of Israel, while Palestinians are not, as they are regarded as residents of an occupied territory and “nationals” of the Palestinian Authority established according to the Oslo Accords. Thus, the Israeli case demonstrates how, despite constitutional protections for basic human rights, a vibrant and sophisticated civil society – both Israeli and Palestinian – and an independent and relatively strong judiciary in Israel, the exclusion of Palestinians, and the blatant inequalities between them and the Jewish population – both inside Israel and to a much larger extent in the West Bank – have continued for decades (Kretzmer, 2002; Yehuda et al., 2014; Medina, 2016; Lustick, 2019; Zreik & Dakwar, 2020; Kretzmer & Ronen, 2021). To sum up, while the rise of human rights has delegitimized social orders rooted in ethnic and racial hierarchies, at least in the West, it has had more limited success in securing inclusion and equality for national minorities. Although sophisticated legal mechanisms promoting equality, antidiscrimination, and minority rights are essential, they do not seem to succeed in securing political inclusion and protection from discrimination for members of national minorities, especially in deeply divided places, and we see great

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reluctance by many states to accord minority rights in such places. As will be argued in the next section, human rights and minority rights frameworks suffer from a number of inherent problems in sites of ethno-national conflict, which go beyond the legal shortcomings of the international norms. 4.6  THEORETICAL SHORTCOMINGS IN SITES OF ETHNO-NATIONAL CONFLICTS

Situations of ethno-national conflicts, as described in Chapter 2, are paradigmatic cases in which “common sympathies” are not shared by the entire citizenry of the state(s) involved. Such situations present what Rawls identified as one of the “more difficult cases” in which “the citizens are not united by a common language and shared historical memories” (Rawls, 2001b, 23–25). Building on the understandings of ethno-national conflicts as developed earlier, I find several fundamental incompatibilities between the reality of ethnonational conflicts and basic features of liberal human rights frameworks. 4.6.1  The (Un)Stable and (In)Secure Sovereign State The common normative appraisal assumes a bounded political community – “a modern Westphalian state, with exclusive, undivided sovereignty over a bounded territory” – as its starting and ending point (Fraser, 2014). Notwithstanding current comprehensive critiques of this assumption’s validity vis-à-vis globalization processes, situations of ethno-national conflict demonstrate a concrete and blatant situation in which this assumption about the bounded sovereign state is refuted. As noted in Chapter 2, ethno-national conflicts are characterized by a struggle over the boundaries of the state and of the citizenry, which means that the struggle is also about who is included within given justice claims. Hence, in situations of ethno-national conflict, arguments about justice include both first-order questions – that is, what is owed to community members as a matter of justice – and second-order/meta-level questions, which ask who are the relevant subjects entitled to just distribution and recognition (Fraser, 2008, 276). Consequently, such struggles often include a struggle over the state’s fundamental institutions and over its “constitutional” or “national” identity. Although there is no agreement on what exactly is included in the concept of “constitutional identity,” it does seem to refer to the state’s basic character and institutions. As Michel Rosenfeld writes: “Conceptions of constitutional identity range from focus on the actual features and provisions of a constitution – for example, does it establish a presidential or parliamentary

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system, a unitary or federal state – to the relation between the constitution and the culture in which it operates, and to the relation between the identity of the constitution and other relevant identities, such as national, religious, or ideological identity” (Rosenfeld, 2012). In the EU context, Article 4(2) of the Treaty on European Union refers to the member states’ national identity: “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” (for its application in EU case law, see Nilsson, 2019). In ethno-national conflicts, these latter arrangement types are commonly contested. It is therefore not surprising that peace agreements in ethno-national conflicts often involve redefining the state’s constitutional identity, and significant changes in the structures of states’ power (Bell, 2008, 105–108). That the state’s very territory and fundamental characteristics are contested in ethno-national conflicts explains why the existence of “the state” as a bounded political community cannot be assumed or regarded as an enduring fact. These challenges to the state’s foundational characteristics might be experienced, in situations of conflict, as an existential threat: either because the state’s territory or constitutional identity is objectively under threat, or because of the perception of such a threat by a large segment of the public. This threat is mostly experienced by those state citizens who identify with the state in its current form (commonly members of the majority group), and who identify “the state” as their group’s national home. Moreover, a common feature in conditions of conflict is a dual perception of the majority group as both a national group distinct from rival ethno-national group(s), and as the group to which the state “belongs” (such was the case in Northern Ireland, and still is largely the case in Cyprus and Israel–Palestine). This majority group often feels threatened in both capacities. For example, the Irish Catholic demands voiced against the Northern Irish state contested both the “national identity” status quo of Northern Ireland as a British Protestant state, and the territorial integrity of Northern Ireland (demanding that it become part of a united Ireland). These demands were experienced by the British Protestants as threatening them and the Northern Irish state. In the Israel–Palestine context, the Palestinian demands – for rights to the entire land; for the establishment of a Palestinian state; for Palestinian refugees to return to their original homes – contest both the state’s territory and its constitutional identity. Such demands are perceived by many of the Jewish citizens of Israel as threatening the “state of Israel” and as an existential threat to themselves personally (Bar-Tal, 2007a; 2007b). Similar features can be found in the Bosnia and Herzegovina and Cyprus cases.

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Beyond obvious practical implications, these contestations have deepseated theoretical implications. This is because such contestations disrupt fundamental assumptions about what the state should do according to liberal accounts, especially liberal multicultural accounts, which assume state obligations for extensive minority rights. The obstacle is that in conditions of ethno-national conflict, the ruling majority is not secure enough (or does not feel secure enough) to accord as a state obligation predefined, wide collective rights to minorities. If the majority group feels that its fundamental interests are threatened, it seems unreasonable to expect it to act in a selfthreatening manner. While a normative duty may have a persuasive force, it cannot be reasonably assumed to have the capacity to overshadow feelings of threat to fundamental interests (Kymlicka, 2007, 109). Hence, any requirement that under such conditions “the state” should accord extensive rights to the opposing minority group(s), without attending to fundamental insecurities of the majority and the need to stabilize the state, will fail to address the impasse’s root causes. 4.6.2  Domestic and International Justice: An Inappropriate Dichotomy From the incongruity between the state’s borders and the ethno-national communities’ boundaries follows a challenge to the sharp dichotomy between the level of domestic justice and international justice, a dichotomy we find in all liberal accounts, as well as in the legal framework. In recent years, critical voices within liberal theory have pointed to a basic misconception in assuming that the modern territorial state is the appropriate unit for thinking about issues of justice (Fraser, 2008a, 273–276). As argued in Chapter 2, ethnonational conflicts exhibit a specific and concrete case in which the distinction between the internal and the international does not hold. Such conflicts by definition are fought between ethno-national collectivities – which are not defined according to citizenship (although citizenship plays a significant role in them), but according to ethno-national distinctions. Since the ethno-national groups’ social boundaries do not correlate with existing state borders (which is allegedly one of the “sources” of the problem), the conflicts commonly involve both internal and external aspects (Wimmer, 2004b, 337–338; Patten, 2014, 262–263). For example, the Bosnia and Herzegovina conflict has multiple external aspects, as two of the three rival collectivities have deeply rooted ethnic ties with the neighboring states’ Serbian (then Yugoslavian) and Croatian populations. Indeed, these ethnic kin-states were involved in the war by warring parties’ active support. The Northern Irish conflict also has multiple international aspects, central among

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them the struggle over the territory’s international status: Will Northern Ireland continue to be part of the UK, or will it become part of the Republic of Ireland? These international dimensions are also apparent in the Northern Ireland peace agreement, which is not confined to domestic relations between Irish Catholics and British Protestants within Northern Ireland, but rather includes various international arrangements that involve (primarily) the UK and Ireland. The Cyprus conflict also has clear and significant international aspects, reflected in the direct involvement of Greece and Turkey (e.g., in the Treaty of Guarantees). The Israeli–Palestinian conflict, although commonly considered to be an international conflict, actually combines domestic aspects – within both the state of Israel and the future state of Palestine – and international aspects. The sharp dichotomy between the domestic and the international – common in liberal theories and international law – seems to miss important features of the complex mixture of domestic and international characteristics of such situations, characteristics embodied in the very essence of the conflicting groups. 4.6.3  The Neutrality of the Liberal State: An Impractical Illusion According to leading conceptions of liberalism, the liberal state has a responsibility to be neutral toward the various conceptions of the good held by its different members. As we have seen, Rawls defines the state’s neutrality toward different comprehensive doctrines as neutrality of the basic institutions’ aims, manifested by not favoring any particular doctrine. The state is therefore to exercise its powers as a neutral mediator and an honest broker of individual interests (Tamir, 1993, 141). The state, supposed to act with no bias toward one particular culture or religion, and to be free of all identifying associations with particular groups or individuals. Hence, it is assumed to be “an embodiment of abstract humanity,” representing only universal human qualities that unite all human beings. All other features – family affiliations, religious and ethnic alliances – should be confined to the private sphere and not have consequences for political life: “The true nature of political agents was their citizenship, equally shared by all” (Tamir, 1993, 141). But, as Tamir points out, this liberal state ideal has not even been practiced by the liberal state, which “continued to operate within the constitutive assumptions of the modern nation-state and to see itself as a community with a distinctive culture, history, and collective destiny” (Tamir, 1993, 141). While these national biases of the nation-state are usually transparent to the state’s ethnic majority, they contribute – directly and indirectly – to the exclusion of members of ethnic and national minorities, who do not belong to the dominant culture, from the public sphere.

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The neutral state ideal seems even more misplaced when we discuss situations that have already escalated to full-fledged ethno-national conflicts. As we saw in Chapter 2, common to such situations is favorable recognition and treatment given by the state to the dominant ethno-national collective, with a less favorable and even hostile attitude marking the state’s position toward competing ethno-national groups. Certainly, part of this bias is an arbitrary discrimination (to varying degrees) that unjustly advances privileges for the hegemonic national group to the detriment of minorities. Yet, addressing the issue as solely one of arbitrary discrimination – which could and should be corrected by the state adopting a neutral stance toward all ethno-national collectivities within it – is not only wrong, but also misses the real and legitimate concerns of both majorities and minorities. The requirement that the state should be “nationally” neutral in a situation of ongoing ethno-national conflict seems both highly unlikely politically, and uncorrelated with common perceptions of justice. The improbability that the dominant group would concede its national dominance in favor of a neutral state in situations of conflict is tightly connected with questions of trust and self-interest. Discrimination against the minority does not feature alone, but is coupled with a lack of solidarity and fear of losing one’s own (collective) liberty. As emphasized by David Miller, modern democratic states require a high level of internal solidarity, which is especially essential as the modern state requires that citizens make sacrifices for each other (Miller, 1995a, 90–91; 1999, 26–27; Kymlicka, 1995, ch. 9). In situations of ethno-national conflict, strong solidarity often exists within ethno-national collectivities’ social boundaries – that is, between “ethnic kins” – but, generally speaking, not across dividing ethnic lines. In such situations, not only is the necessary solidarity between all citizens of the state missing, but a real sense of mistrust, animosity, and even hatred is present. In situations of violent intergroup conflict, and especially when such conflict is perceived as an existential threat, the sides are caught in a “domination trap,” as they view their conceivable situation as being either successful in securing dominance or risking becoming dominated (Bar-Tal, 2007a, 25–28; 2007b, 1430). While mutual coexistence is the genuine alternative to the “domination trap,” it is not perceived as possible as long as the ethno-national conflict itself is maintained. Thus, keeping ethnic domination in such a situation should not be understood (just) as a mere manifestation of racist ideology, but rather as stemming, at least in part, from a genuine fear of risking one’s own collective liberty (Bar-Tal, 2007a, 25–28). Thus, while the demand for state neutrality aims precisely at dismantling dominance and superiority, in situations of ethno-national conflict state neutrality is experienced as a

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substantial risk to the national group’s fundamental self-interests. Imposing such a demand on the majority group is not only highly unlikely to be fruitful, but also seems unreasonable and may even be considered by members of the majority group to be unjust. If indeed, as I argue, it is unreasonable to expect a dominating collective confronted with an ethno-national adversary to agree to transform the state to be nationally neutral prior to resolving the conflict, then we must seek an alternative requirement. Do the revisions offered by multiculturalism or liberal nationalism (or both) offer adequate alternatives for a situation of conflict? 4.6.4  The Collapse of Multicultural Theory in the Face of Securitization As we saw, according to liberal multiculturalism, the key to correcting the problems of liberal accounts based on individualism and neutrality is the incorporation of minority rights. National minorities, according to Kymlicka, should be accorded extensive collective rights, including self-governing rights if such are demanded (Kymlicka, 1995, 181–186). However, liberal multicultural accounts suffer from three interlocking shortcomings when it comes to dealing with national minorities’ rights in situations of ethnonational conflict. First, multiculturalism confines the scope of review to the sovereign state, thus missing the full spectrum of the situation – that is, of the conflict – which includes both internal and external dimensions (as discussed earlier). Second, multiculturalism relies on the powerful moral logic of liberal human rights demands, without due attendance to the state’s unstable position and to the “majority’s” needs and insecurities. As Kymlicka himself forcefully explains: “If we assume that multiculturalism arose in the West solely or primarily because of its powerful moral logic, then attempts to promote it abroad will largely consist in moral hectoring of other societies.” Rather than powerful moral logic, the adoption of liberal multiculturalism practices seems to be much more connected “with the larger framework of power relations into which these normative arguments are inserted” (Kymlicka, 2007, 112). Third, but perhaps most significantly, because the multicultural paradigm takes the stance of domestic justice, it retains the state’s centrality as the main vehicle for change and perceives the nature of the relations between the state and the minority groups as vertical. The resulting theory thus emphasizes the state’s obligations toward the minority groups and limits the place of the minority groups as primarily a “right holder.” In doing this, multicultural

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theory neglects a fundamental distinguishing feature of political conceptions of justice, namely that they satisfy the criterion of reciprocity (Rawls, 1993, 16–17; 2001a, 6, 49; 2001b, 7, 14, 35). In theory, and to an even larger extent in practice, minority rights are comprehended as the minority’s right, which the state – that is, the majority group that dominates the state – is duty bound to accord. Reciprocity between the minority group(s) and the state’s majority are not discussed and are not required by the liberal multicultural accounts. Thus, the minority rights framework seems to maintain and validate vertical relations between the “state” and the minority groups (resembling the verticality that characterizes the relations of state–individual). In such vertical relations, the place of the majority group – the ethno-national adversary – as distinct from the state itself is missing. And since reciprocity is generally not seen as a component of minority rights discourse, the minority groups’ obligations toward the majority are also missing. Moreover, multiculturalism does not really challenge a fundamental and problematic feature of these situations: relations marked by domination. Rather than attempt to transform these relations – from relations based on domination, fear, and mistrust, to interdependent relations based on equality and mutual respect – multicultural theory assumes that domination is maintained and should continuously be corrected by employing differentiated rights. Indeed, it can be argued that as minority rights are a corrective mechanism for majority rule, and naturally do not address the majority (which is intrinsically assumed not to need such corrections), there is no justification for reciprocity between majority and minorities. However, such an assumption seems less valid with regard to collective rights, and particularly with regard to collective self-determination in situations of ethno-national conflict. As noted earlier, the social conditions assumed by liberal multiculturalism are not present in ethno-national conflicts in which the fundamental interests of both groups – the minority but also the majority – are at stake. It is therefore not surprising that Kymlicka notes that “relations between national groups should be determined by dialogue” (Kymlicka, 1995, 124–125). Thus, even though multicultural theory focuses on relations between national groups, the majority group’s central role is not acknowledged in Kymlicka’s account or in other liberal accounts of group rights. What is also missing is a more developed discussion about the role of minority groups as actors and duty bearers alongside the discussion about their rights (and obligations toward individual members). What should come first – granting rights to the discriminated minorities or their responsibilities, or both together – is a complex question that can be guided by considerations of justice and practicality, as they play out in the specific context.

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In 2007, Kymlicka published his findings from a survey about the implementation of liberal multiculturalism around the world. After reviewing the results of comprehensive attempts to apply multicultural policies in various countries (with a special focus on Eastern European countries), he regretfully reaches the conclusion that the theory in its current shape does not properly apply to societies within which the “securitization” of ethnic relations had occurred (Kymlicka, 2007, 118–119, 182). The securitization of ethnic relations refers to situations where relations between states and minorities are considered a matter of national security and where the state’s very existence is experienced as being under threat (Kymlicka, 2007, 190; see also Buzan & Wæver, 1998, 23–26; Roe, 2004). When minority issues are securitized – that is, when the minority is perceived as “the enemy” and as a threat to the nation – the space for moral arguments in favor of the minority and for successfully challenging the majority’s preferences radically diminishes (Kymlicka, 2007, 192). Kymlicka concludes that “it would be unreasonable to expect liberal multiculturalist models to be adopted in contexts where states have a reasonable fear that it could lead to instability” (Kymlicka, 2007, 304). Since it would be unreasonable to expect states to adopt more advanced minority rights for national minorities in situations of ethno-national conflict, liberal multiculturalism seems not to offer a viable theory for the transitional process from conflict to peace. Aware of these shortcomings of multicultural theory, Kymlicka suggests that in politically fragile countries, a liberal multicultural agenda should be implemented gradually, by finding the appropriate balance between minority rights and the need for political stability. Yet, he also acknowledges that currently the literature does not provide a theory for such a gradual implementation. He then suggests that the best alternative seems to be a “more complex model of targeted and sequenced minority rights that would attempt to track important differences across different types of groups and different circumstances” (Kymlicka, 2007, 304–306). But since there are no real prospects for significant innovation – regionally or globally – the trend is portrayed as retreating to a more generic framework of minority rights. This generic framework is said to include Article 27 of the ICCPR and some minimal level of “effective participation” to help create the space for states and minorities to “slowly work out their own accommodations.” Hence, Kymlicka emphasizes that such a move must be accompanied with a clear message that these rights are only the minimum demand, the foundation from which the larger liberal multiculturalism framework, which includes a complex set of targets and conditions, is built (Kymlicka, 2007, 309–315). However, the guidelines for this process – Should it take place via

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dialogue? Between whom? What rules are to guide what is permissible and what is not? – are still missing. 4.6.5  Shortcomings of Liberal Nationalism Unsurprisingly, with its aim of providing a morally acceptable way in which both liberal values and national values can be upheld, liberal nationalism seems to offer the best liberal account for situations of ethno-national conflicts. Moreover, as we will see in the next chapter, the new possibilities pointed out by Tamir – including consociational democracy, federalism, and confederalism – have indeed become the dominant models for settling such conflicts. However, while I share Tamir’s aims and concur with many of her arguments in her description of liberal nationalism, I fear that a prominent feature of nationalism gets lost during its “liberalization.” According to Tamir (1993), nationalism is understood primarily as a demand for promoting and preserving one’s own national culture, cultural preservation being the motive for the demand for self-rule. While I agree that nationalism is also about culture, I concur with Avner De-Shalit’s critique that this cannot be regarded as its primary concern, to which the political demand – “to have control over our lives” – is only secondary (De-Shalit, 1996, 911; Yack, 1995, 167). This disagreement about nationalism’s core is significant. Among other implications, it influences our judgments about which institutional features may be regarded as justified and which are not. Thus, as will be argued in the following chapters, a cultural understanding of nationalism prevalent in leading accounts of liberal nationalism is not fully adequate and is not sufficient to justify what is practically needed to overcome ethno-national conflicts. At the same time, much of what Tamir acknowledges as new possibilities for national self-determination (if understood as culturalism) can also serve as alternatives to self-rule and national self-determination. An explanation of this last assertion is included in Chapter 7, in which I elaborate the idea of collective equality. 4.7 SUMMARY

As concluded in Chapter 3, the ethno-national mixture of a population should be assumed as one of the social facts that must be considered when crafting solutions to ethno-national conflicts. Faced with the challenge of accommodating diversity, liberal justice and human rights provide the normative framework for securing equal liberties and rights for all. However,

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these promises of liberal justice and human rights have not been fulfilled for enduring minorities. As critical accounts show, despite great advancements in theory and law, discrimination endures and is prevalent, especially in places of ethno-national conflict. This chapter’s central contention is that liberal democracy, despite advanced human rights protections (including protections for minority rights), has not succeeded in providing adequate redress for legitimate concerns of nondominant national groups. Possible reasons for the persisting inequalities and discrimination have been suggested, including shortcomings of both the legal and theoretical frameworks. Human rights law has been shown to be too individualistic, while minority rights are found to be too minimal, in some cases arbitrarily restricted to only certain groups, and with many states unwilling to adopt them. Significant incompatibilities between the background social reality in sites of ethno-national conflicts and the basic assumptions and requirements of dominant perceptions of liberal theory have also been described. These theoretical incompatibilities are suggested as possible deeper causes for the enduring problems and the current normative impasse of liberal democracy in the face of group conflicts. The chapter also notes that prominent liberal accounts such as those of Mill, Rawls, Kymlicka, Tamir, or Miller rely on specific social conditions, in particular the necessity of social solidarity (mainly in the form of nationality) for the vitality of liberal democracy. However, along with other significant social changes, the normative paradigm that in the past attributed to nationalism the highest kind of legitimacy (“taken-for-granted” legitimacy) has also changed. The decline in the legitimacy of nationalism, and especially ethnic nationalism of majority nations, and the necessary disqualification of common practices that were once central to the processes of “nation-building” (particularly cultural assimilation) seem to have left a theoretical and practical vacuum. While the “old tools” have been disqualified, new tools for building sustainable political communities within the limitations of liberal justice seem to be missing.3 In other words, while liberal democracy and human rights frameworks provide us with a desirable ideal, they fail to provide useful guidance for progress, from a situation of ethno-national conflict – which often involves political exclusion, sharp inequalities, low mutual trust, and high animosity – to more just and peaceful societies that respect the human

3

I have not engaged here with the writings on “constitutional patriotism” and “transitional justice.” However, the suggestions for constitutional patriotism are prone to similar shortcomings as the idea of state neutrality, especially in places riven by ethno-national conflict. Most accounts of transitional justice relate only to the “posttransition” phase, and also in this regard are said to lack a coherent theory of change (see Gready & Robins, 2020).

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rights of all. Self-determination is currently blocked as a legal remedy; states are reluctant to grant minority rights, especially in cases where majority– minority relations are in conflict; and scholars of equality law, asserting that any real advancement is blocked because of the individualist orientation of the law, send us back to collective measures. It may not be surprising that what seems to be the emerging alternative is found currently outside the paradigm of liberal democracy and human rights law. Peacemaking practice shows that the alternative – utilized in addition to liberalism and human rights, not instead of them – is to challenge the dominant model of majoritarian democracy itself. These practices show that to craft solutions to group conflict there is a need for a more inclusive restructuring of political institutions, which is influenced greatly by consociational theory and other power-sharing models. Evaluating the advantages and disadvantages of this emerging alternative will be the subject of Part II of this book.

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Part II

revisiting assumptions

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5 Rethinking Democracy

5.1 INTRODUCTION

Liberal democracy and human rights successfully challenged traditional social orders rooted in ethnic and racial hierarchies (at least in the West), but had much less success in delivering on their utopian promise of political inclusion and equal protection of human rights for all. Empirical research does find correlation between democracy and political inclusion, but the findings suggest reverse causal relations between the two. While political inclusion does make democracy and peace more likely (and political exclusion of large proportions of the population makes transition to democracy less likely), democracy does not make political inclusion and peace more likely (Wimmer, 2013a, 179; 2018a, 15; see also Marshall & Ishiyama, 2016). In sites of conflict, where the relations between the majority and the minority are considered a matter of national security, legal obligations to respect human rights are not enough to secure political inclusion, and to provide the needed guarantees for minorities to counter the adverse effects of majoritarianism. Peacemaking practice shows that national minorities are aware of these shortcomings. When the parties to group conflict come to the negotiating table, their focal points are not bills of rights, but something else. This “something else” is what I term here collective equality, which revolves around inclusive restructuring of political institutions, often by the use of power-sharing democracy – a political framework that intentionally accommodates competing ethno-national groups within the state’s governing structures. According to data collected by Caroline Hartzell and Matthew Hoddie, there has been a clear rise in the use of power-sharing democracy as a tool of peacemaking (Hartzell & Hoddie, 2015, 41). While between 1945 and 1949 only 2 out of 7 (28.5 percent) civil wars included settlements that called for power-sharing, in the 1950s it was only 2 out of 11 (18 percent) and in the 1960s 133

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only 1 out of 10 (10 percent). In contrast, in the 1990s the number rose to 34 out of 46 (74 percent) and between 2000 and 2006 it was even higher, at 15 out of 19 (79 percent). This marked rise has been attributed mainly to the fact that the proportion of civil wars that have ended in agreements has risen considerably (Hartzell, 2016, 129). However, the reasons for its rise should be assessed also based on the three considerations presented in the previous chapters. First, ethno-national conflicts are rooted in contemporary political power relations and social injustices, intimately connected to the basic structures of the modern nation-state (Chapter 2). Second, partition and independent statehood – traditional solutions to self-determination conflicts – suffer from significant shortcomings, making them unsuitable as a stand-alone solution for resolving such conflicts (Chapter 3). Third, contemporary liberal democracy and human rights paradigms suffer from significant shortcomings in addressing and correcting the underlying causes and injustices prevalent in places plagued by ethno-national conflicts (Chapter 4). Power-sharing arrangements are paradigmatically different from the hegemonic models of the state, and particularly of the view of a “proper” democratic state. At the core of power-sharing models, we find an actual and concrete (not presumed) agreement to political inclusion between the main ethnic or ethno-national collectives that inhabit the disputed territory. The territory may include the whole territory of an existing state (e.g., Bosnia and Herzegovina, Belgium, Lebanon, or the original Republic of Cyprus), a region of a state (e.g., Northern Ireland or Italy’s South Tirol), or regions that are part of two or more states (e.g., the alternative paradigms for peace in Cyprus or Israel–Palestine, which involve confederal arrangements between two independent states). Unlike the hegemonic model of conventional liberal democracy, power-sharing arrangements – particularly when used as a tool of peacemaking – officially include ethnicity within state politics, through a variety of mechanisms (Hodžić, 2020, 526–527). But endorsing ethnic identity (or religious, as in Lebanon, or linguistic, as in Belgium) as part of the political arrangements may result in the partial – formal or informal – exclusion of other groups that have not been included in the power-sharing pact, as well as of some of the citizens. Thus, from a liberal and human rights point of view, ethnic power-sharing is exposed to the charge that it violates the basic obligation to secure full equality and political inclusion for all citizens. Influenced by the British model of governance, the “majoritarian democratic” system has become the “taken-for-granted” legitimate democratic paradigm (Lijphart, 1977b). This model of a democratic state fits well alongside the normative shift toward individualism and individual rights. As we saw in Chapter 4, saying that everyone is equal, and even formally allocating

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equal individual rights to all, does not ensure equality and political inclusion, in either consolidated democratic states or much more in deeply divided places. Furthermore, liberalism and the paradigm of equal individual rights do not supply the democratic state with an additional component essential to its function: solidarity (Mill, 1977, ch. 16; Rawls, 2001b, 23; Beetham, 1994; Miller, 1995a; 2017; Harell et al., 2021). Faced with these problems, the first strategy that was widely used in modern Europe, up until the second half of the twentieth century, is the “melting pot” strategy, which promoted assimilation, either voluntary or coerced. Such assimilation processes are also known in other parts of the world, for example the USA, Canada, India, and Israel (with regard to its Jewish population). The aim of such assimilation practices was to eliminate differences in order to produce cultural homogeneity and the “common sympathies” envisaged by John Stuart Mill as necessary for a functioning democratic society. However, the strategy of assimilation was not always practiced and not always available, sometimes due to the unwillingness of the dominant nation to include the ethnic others, sometimes due to resistance of the ethnic others (either originally or as a reaction to their continued discrimination), or due to a principled rejection of assimilation. In turn, the failure to assimilate and bind together all the members of the political unit (defined by territory) made democracy itself, as predicted by Mill, highly problematic in multinational settings. “Power-sharing” represents a political practice prominently articulated by Arend Lijphart (1968; 1969; 1977a; 1977b; 2004; 2007). It offers another strategy for handling political diversity that is based on managing the differences instead of wishing them away. While in majority rule the dominant national group controls the powers of the state, and at its best is limited by constitutional obligations for individual and minority rights, in a power-sharing democracy the management of differences is facilitated through devising state institutions to allow for the sharing of power by competing national groups (McCrudden & O’Leary, 2013a, 1). Power-sharing encompasses a variety of democratic institutions, which stand as alternatives to the majoritarian system in a unitary state. Aware of the problems of the majoritarian democracy model in deeply divided places, many experts, nongovernmental organizations (NGOs), scholars, and policymakers have recommended power-sharing as a more adequate institutional design for such places (Wählisch, 2019; Bormann et al., 2019; McCrudden & O’Leary, 2013a). A central argument, raised convincingly by Hartzell and Hoddie (2015), is that power-sharing models offer better chances to support a stable democracy in divided places, including after civil wars, than the majoritarian model. Their argument is that the real choice in such places is not between liberal majoritarian democracy and democratic

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power-sharing, but rather between democratic power-sharing and no democracy at all. The sharing of state powers within power-sharing models does not refer only to political powers. It has been observed that the powers shared include territorial, military, and economic powers (Hartzell & Hoddie, 2015). Based on my analysis, I offer a revised version of this list to include a cultural dimension. However, the main point is not the list, but the recognition that the full spectrum of collective goods controlled by the state – both tangible and intangible – needs to be fairly shared. These characteristics of power-sharing explain why it serves to accommodate the two seemingly contradictory conditions common in places of ethnonational conflicts: the aspiration of rival groups for national self-determination on the one hand, and the ongoing coexistence of members of different ethnonational groups across the disputed territories on the other. However, these advantages of democratic power-sharing, especially when they include an explicit allocation of political powers and rights according to ethnic identity, come at a price. Harsh criticisms – from both pragmatic and principled standpoints – have been raised against these arrangements, and especially against the formal assigning of political powers to particular ethnic groups. In this chapter, I evaluate democratic power-sharing vis-à-vis the more common model of majoritarian democracy to support my argument that a revision of our taken-for-granted assumptions about what “proper” democracy looks like is needed. To illustrate the general observations, I review these assumptions in three of the four cases compared here: Cyprus, Bosnia and Herzegovina, and Northern Ireland. The Israeli-Palestinian case will not be examined in this context, insofar as power-sharing arrangements have not been part of the local political practice or the official peace talks aiming to resolve this conflict, and only more recently have been proposed by scholars and civil society activists as a more suitable paradigm for peace in this conflict. Therefore, I place the Israeli-Palestinian conflict aside for the remainder of this book and return to it only in Chapter 10, where I present a sketch of how the understandings and analysis advanced here might be applied to this context. 5.2  THE MAJORITARIAN MODEL OF DEMOCRACY IN DEEPLY DIVIDED PLACES

5.2.1  Majority Rule Democracy, as a form of state regime, is equated with popular sovereignty, which stands in contrast to monarchy, aristocracy, and other forms of minority

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rule. At its core lies the idea of group decision-making characterized by a kind of equality among the participants (Christiano, 2015). While this understanding of democracy is widely accepted, the questions of what this equality among participants should mean, and how to translate it into the practices of particular institutions in which collective decisions will be made, has been greatly debated. This is not the place to dive into the extensive controversies around the concept of democracy. Here, my modest aim is only to identify the concept of majority rule, which serves as the pervading concept of democracy (and is often even conflated with it), and to distinguish it from the less familiar model of power-sharing democracy. One meaning of majority rule is as a decision-making method in which a majority of votes act as the criterion for collective decision-making. As a criterion for specific collective decisions, majority can have multiple meanings, including qualified majorities (for example, a two-thirds majority), absolute majority (50.01 percent of the votes), and relative majority (also called a simple majority). The question of the kind of majority that is required lies at the center of the controversy. In practice, majority rule is usually understood as a requirement for a simple majority, while the other kinds of majorities demand specific annotation. Apart from being a collective decision rule, majority rule is also ascribed to the political system as a whole. According to Ronald Dworkin, the conception of “majoritarian democracy” holds that “people govern themselves when the largest number of them, rather than some smaller group within them, holds fundamental political power” (Dworkin, 2011, 383). Arend Lijphart offered another distinction. According to Lijphart, majority rule means the concentration of political power in the hands of the majority, and in practice majority rule is understood as the unlimited rule by the majority. Lijphart argues that if the intention is for a restrained majority rule that respects minority rights, then it must be clearly stated (Lijphart, 2007, 114). According to Lijphart and contrary to common perceptions, there are in fact not one but two basic models of democracy that should be distinguished: majoritarian democracy and consensus democracy or “power-sharing” democracy (being a nonmajoritarian form of democracy). While in popular usage “majority rule” or “majoritarian democracy” is commonly conflated with the concept of democracy itself and is perceived by many (including scholars and policymakers) as the proper and legitimate form of democracy, this assumption is conceptually wrong and practically unhelpful (Lijphart, 2007, 114). Both deontological and consequential justifications have been offered to support the choice of majority rule as a decision-making method. Jeremy Waldron has argued that majority rule is required for treating persons as

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equals in collective decision-making, and hence that “final decisions” about political questions – including individual rights and political processes themselves – should be made by majoritarian procedures (Waldron, 1999, 299; 2005, 1387; Macedo, 2010, 1031). The argument is that when “equal” persons disagree about what the rules or policies should be, the fairest way of settling the disagreement is to give everyone an equal vote.1 It is also argued that unlike forms of supermajority, which have a bias toward the status quo, majority rule is neutral toward alternatives in decision-making (Christiano, 2015, 17). Majority rule, Waldron argues, at least allows “a voice and a vote in final decision-making procedure to every citizen of the society,” and when numbers rule, the equality of each person is, at least in one aspect, preserved (Waldron, 1999, 299). Additionally, even if a broad agreement among citizens is viewed as more democratic than simple majority rule, in the absence of a consensus it seems more democratic that decisions are made by majorities and not by minorities. From a consequentialist perspective, majority vote is commonly regarded as an efficient decision-making rule, more efficient than consensus or unanimity, and hence as the best procedural device to make collective decisions (Blaug, 2016, 172–173).2 5.2.2  The Pitfalls of Majority Rule in Deeply Divided Places Since majority rule clearly does not include everyone equally, it is based on an underlying assumption that today’s political majority can be replaced and be overturned by today’s minority, which may become the majority tomorrow. However, while in consolidated liberal democracies such political overturning is indeed possible and takes place, in deeply divided places this underlying assumption is either totally frustrated or frustrated with regard to a specific minority, what is called an enduring or persistent minority. In places such as Northern Ireland between 1922 and 1972, Cyprus between 1964 and 1974, or Israel since its establishment, the democratic method of majority rule raises the twin dangers of majority tyranny and persistent minorities; that is, groups of persons who find themselves always losing in majority decisions (Christiano, 2015, 17).3 In such social conditions, the majorities and minorities are predetermined and permanent. Such a situation of permanent majority and 1 2 3

This allegedly simple assertion was, however, challenged early on by social choice theorists, see Sen, 1999, 350. Lijphart argues that even this assumption proved wrong: “It is consensus rather than majoritarian democracy that has the slight edge with regard to effective policy-making” (Lijphart, 2007, 270). In Israel, the coalition government that began in 2021, 73 years after the country’s establishment, is the first government of Israel to include an Arab party.

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minority can easily lead to a situation of “majority tyranny” (Josephson, 2014; Sartori, 1987). Thus, by adhering to ordinary majority rule, formally democratic states in deeply divided places usually tend toward ethnic domination (Horowitz, 2014), labeled by some scholars as ethnic democracy (Smooha, 1997; 2002; 2009) and by others as ethnocracy – rejecting the democratic label in its entirety (Yiftachel, 2006). Beyond the dire consequences of ethnic domination, which may involve blatant discrimination, dispossession, and oppression, the mere situation of a persistent minority results in a violation of public equality (Christiano, 2015, 38–39). Situations of ethno-national conflicts often involve the materialization of the abovementioned twin dangers, resulting in the exclusion of the nondominant ethno-national groups from the state’s decision-making and from their fair share of the state’s public goods. This outcome is clearly incompatible with both the principle of equality and the basic obligation of a democratic state, which is required to include the entire citizenry when considering the general public interest. Thus, such a situation, in which the minority is persistently losing in national decision-making, should be regarded as clearly undemocratic, insofar as it is not inclusive of the whole people (as demos). Beyond being unfair and unjust, ongoing exclusion along ethnic lines fuels and raises the probabilities of civil strife. 5.2.3  The Insufficiency of Restraints on Majority Rule in Deeply Divided Places As majority rule is potentially harmful to the political minority, the common understanding of democracy includes the idea of restraints on majorities. A central question of democratic theory therefore relates to the content of these restraints and how these restraints are applied, whether through individual indoctrination, social checks and balances, or constitutional constraints (Dahl, 1956, 36). In contemporary conceptions of democracy, constitutional bills of rights (also implementing international commitments to individual and minority rights), enforceable by judicial review, constrain the power of the majority. The accepted approach today views a violation of human rights as an intermediate conclusion that can be rebutted by a special justification. Such a justification cannot rely only on the preferences of the majority, but also requires a substantive justification (Medina, 2016, 1–2). Choudhry (2010, 318–319) maintains that “Advocates of rights-based constitutionalism look to bills of rights to constrain abuses of public power and to constitute a new polity founded on constitutional patriotism.” But, as presented in Chapter 4, these expectations do not materialize. Human and

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minority rights, even when protected by impressive constitutional and legal arrangements, fail to protect minorities against the adverse consequences of majoritarian politics, particularly in places of ethnic conflict. The disappointment with bills of rights as a way to protect minorities in conflictual situations might explain why “bills of rights have attracted minimal attention in the copious literature on constitutional design in divided societies” (Choudhry, 2010, 318–319). 5.3  POWER-SHARING DEMOCRACY IN DEEPLY DIVIDED PLACES

Building on the experience of countries such as Belgium and the Netherlands, Lijphart’s research on power-sharing makes a connection between mechanisms that distribute the state’s political powers among the competing groups and lasting periods of stability.4 Instead of majority domination and minority rights, in power-sharing systems the different identity groups govern the polity together. Lijphart’s analysis focuses on four components as essential: government by a grand coalition (as opposed to a majority coalition); proportional distribution of executive positions in government; minority veto on essential issues; and autonomy for identity groups (Lijphart, 1969; 1977a; 2004; 2007; Hartzell & Hoddie, 2015, 39). The primary difference between power-sharing and majoritarian democracy relates to the question of the kind of majority vote that is required and the de facto political inclusion that occurs: “Instead of being satisfied with narrow decision-making majorities, power-sharing democracy seeks to maximize the size of these majorities. The real contrast is not so much between majoritarian and non-majoritarian as between bare-majority and broad-majority models of democracy” (Lijphart, 2007, 12). Subsequent studies sought to extend Lijphart’s insights to the more volatile political conditions of civil wars and ethnic conflicts. Proponents of the use of power-sharing mechanisms in such situations are essentially pragmatic. They argue that in deeply divided places, it may be the only strategy capable of bringing violent conflict 4

Three interrelated terms have been used by Lijphart to describe these alternative models of democracy: “consociational democracy,” “power sharing,” and “consensus democracy.” “Consociational democracy” and “power sharing” are used by Lijphart as synonyms, as he found that “using ‘power sharing’ instead has greatly facilitated the process of communication beyond the confines of academic political science.” He also uses “power sharing” as a rough synonym for the concept of “consensus democracy,” which grew out of his effort to define and measure consociational democracy more precisely but resulted in a new concept. While the two concepts remain closely related, they are not identical (Lijphart, 2007, 6–7).

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to an end (McCulloch, 2014, 502). It has been explained that entrusting the state’s powers to the hands of the competing collectivities might foster more investment in the state structure for the groups involved and, in turn, enhance stability and democracy (for a comprehensive defense of powersharing democracy, see O’Leary, 2005). Providing the competing collectivities with a guaranteed share of the state’s powers affords security and prevents any one group from becoming overly dominant and overriding the essential interests of the others. Indeed, attending to the needs and insecurities of the competing identity groups seems to be an important component of a peaceful resolution to conflict. Inclusion of different political parties representing diverse population groups is possible not only in power-sharing systems, but also in political systems based on proportional representation that have large numbers of political parties. But while power-sharing makes inclusive government mandatory, proportional representation makes it only optional, depending on the goodwill of the majority or on circumstantial interests. Moreover, proportional representation might ensure a distribution of parliamentary seats more closely related to the numbers of votes cast for each party, but it does not preclude minorities finding themselves in situations of permanent opposition. The different outcomes of an optional versus a mandatory grand coalition in deeply divided places can be illustrated using Northern Ireland and Israel. During the five decades after the establishment of Northern Ireland as a political unit within the UK, and until the early 1970s, the government at Stormont was held exclusively by British Unionists, while Irish Catholics were excluded both from government as well as from their “fair share” of the state-allocated public goods. In Israel, during its first 73 years, parties representing the Arab citizens of Israel were never included in the government. Even today, the inclusion of Arab parties in the government is regarded by many from Israel’s Jewish majority as nonlegitimate. 5.3.1  Competing Prescriptions for Political Inclusion While scholars of institutional design for deeply divided places agree that political inclusion is recommended and even necessary, they disagree on the best way to devise democratic institutions for interethnic inclusion. The debate centers around two main models: a centripetal coalition of the moderate parties in each community and a consociational grand coalition that includes each community’s main parties (McGarry & Loizides, 2015, 848; Horowitz, 2001). The centripetal model, known also as integrative power-sharing, is mostly associated with the work of Donald Horowitz. It aims at voluntary interethnic

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coalitions of moderates. Centripetalists believe that establishing institutional incentives for cross-ethnic behavior to encourage accommodation between rival groups is the best way to manage democracy in divided societies. They object to the replication of existing ethnic divisions in the legislature and other representative organs that occur in the consociational model (Reilly, 2013). In order to dilute the ethnic character of competitive politics and promote outcomes that favor the political center, “Centripetalists place a premium on promoting cross-ethnic electoral and party systems that make politicians reliant on the votes of different ethnic communities to gain election. In so doing, they advocate political institutions that can help to break down the salience of ethnicity rather than fostering its representation” (Reilly, 2012, 57). This arguably can be achieved by providing them with incentives, “principally electoral incentives, for moderates to compromise on conflicting group claims, to form interethnic coalitions, and to establish a regime of interethnic majority rule” (Horowitz, 2014, 5–6). However, the limited practical experience with this model has shown that the deliberate intention to design electoral institutions in favor of moderate parties does not work as expected (Fraenkel, 2001, 26). In contrast, the consociational approach does not necessarily aim for the promotion of moderate forces in each of the groups, but rather stipulates a mandatory coalition between the main parties of each of the communities. Accordingly, the state powers are allocated – formally or informally  – according to ethnic group identities. In practice, this means the establishment of institutional arrangements in which the principal ethno-political players are included, as a mandatory requirement, in the central channels of decision-making (McCulloch, 2017, 2). The model, as first developed in Lijphart’s work and later in the writings of John McGarry, Brendan O’Leary, and others, combines four principles: a grand coalition government between parties from different segments of society; cultural autonomy; proportionality in the legislature, public-sector employment, and public funds; and minority veto (McGarry & O’Leary, 2004). According to Lijphart, the two most crucial characteristics of such systems are a grand coalition and autonomy, while the other two (i.e., proportionality and minority veto) are of lesser importance (Lijphart, 2007, 4). Advocates of power-sharing emphasize that the four principles of consociational theory do not assume one specific set of rules and institutions, but rather a general type of democracy that can be applied in a variety of ways (Lijphart, 2007, 67). For example, the grand coalition principle can be fulfilled in a cabinet in a parliamentary system, in an arrangement of a president and other top officeholders in a presidential system of government, or in a federal executive council, based on a hybrid of parliamentary and presidential

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principles such as the Swiss arrangement (Lijphart, 2007, 67; O’Leary, 2005; Wolff, 2013; McCrudden & O’Leary, 2013b). Federalism is another mechanism for sharing (by dividing) the powers of a state (Follesdal, 2018). But while consociational democracy and centripetalism are occupied with the division of powers “at the center,” federalism offers an alternative to the unitary state. In federalism, the nation-state is divided into several substate regional territories, with some of the sovereign state powers allocated to these regional entities. Both proponents of consociational democracy and those of centripetal power-sharing favor federal systems over a unitary state. For consociationalists, federalism functions as an alternative device to achieve group autonomy (Lijphart, 2007, 4, 8, 67), while for centripetalists it mainly functions as a way “to blunt the effect of stark opposition among solidary ethnic groups at the center” (Horowitz, 2007, 1218). In contrast to the clear distinctions of scholarly debate, peacemaking practices point more to the emergence of “complex power-sharing”; that is, the use of different power-sharing models, rather than a “pure” application of only one of the theoretical models (Wolff, 2008; 2009, 29, 40; Weller et al., 2008). Nowadays it seems that the term “power-sharing” is frequently used to refer to mechanisms that distribute powers by both sharing (like grand coalition and proportionality) and dividing them (like territorial autonomy) (Hartzell & Hoddie, 2015, 40–41). Viewing all these mechanisms as “powersharing” highlights their role in the distribution of authority – through the sharing and the dividing of power – among former rivals in the context of postwar states (Hartzell & Hoddie, 2015, 40–41, fn 6). Indeed, a global empirical study shows no clear preference of any specific model of government or political system to secure political inclusion (Wimmer, 2013a, 190). However, the global study does support the main agreement among scholars; namely, that ensuring political representation at the highest level of government is essential for long-term political stability. Such representation can be obtained either through nation-building that depoliticizes ethnicity over time (thus building a “civic” nation and ensuring the conditions for “traditional” liberal democracy), or through the inclusion of all relevant ethnic groups via a power-sharing democracy. Since the option of building an allinclusive nation seems unavailable in deeply divided places, particularly in short and medium time frames (Wimmer, 2008a; 2013b, 204; 2018a; Hughes, 2014; Kymlicka, 1995), power-sharing stands out as the most available strategy for ensuring political inclusion in such places. But with the growing recognition of power-sharing as the preferred political framework to be used in deeply divided places, multiple critiques – both pragmatic and principled – have been raised against it.

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5.3.2  Critiques of Ethnic Power-Sharing The pragmatic use of ethnic affiliation as a basis for political representation and economic distribution has engendered most of the critiques leveled against power-sharing, viewed as a system that tends to “freeze” and even entrench, rather than alleviate, divisive identities. Insofar as this system rewards ethnocentric politics, ethnic power-sharing systems are viewed as contributing to the maintenance of the conflict rather than its mitigation, and as such are likely to produce long-term adverse effects on democratization (Horowitz, 2002, 197; 2014; Jung, 2012, 490). Additionally, the nature of some of the mechanisms, particularly the provisions securing veto rights, bring power-sharing arrangements to frequent political deadlocks, which are not easily overcome (Horowitz, 2014; Merdzanovic, 2017). These deadlocks inhibit political progress and development and, in turn, contribute to political instability. Beyond these pragmatic problems, power-sharing presents a serious normative difficulty too, as the use of ethnic identities as a proxy for rights and benefits is highly controversial from the perspective of international human rights law (Hodžić, 2020, 527–529; McCrudden & O’Leary, 2013a, 10–11). The main critique is that ethnic power-sharing prioritizes some social groups – as not all social groups are included in the peace deal – over individuals, violating the state’s obligations to nondiscrimination and equality. The violation of individual equality includes explicit discrimination, mainly the right to run for specific political positions, as I show in the review of the Bosnia and Herzegovina case in Chapter 6. Moreover, ethnic power-sharing systems often include the labeling of individuals (both voluntarily and involuntarily) according to ethnic identity. This central critique will be pursued in much more detail in Chapter 6, where I discuss the ECtHR decision regarding the conformity of Bosnia and Herzegovina’s constitution to European human rights norms. 5.3.3  Responses to the Critiques of Power-Sharing Scholars of power-sharing have responded to these major critiques in two main ways. First, they emphasize that the adoption of power-sharing – even if seen as a less than ideal form of democracy – is better than no democracy at all and is clearly preferable over the continuation of violent conflicts (Hartzell & Hoddie, 2015, 44). Second, they have developed liberal forms of consociations and advanced their use over corporate consociational arrangements when feasible (McCrudden & O’Leary, 2013a, 13; Brown & Ni Aolain, 2017, 2; McGarry & O’Leary, 2009; Wolff, 2011b). In corporate consociational arrangements, both the identity of the protected groups and their share of power are

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ensured and predetermined by constitutional arrangements. For example, in the Cypriot constitution, Greek Cypriots and Turkish Cypriots are accorded special status; in Northern Ireland, it is Unionists and Nationalists; and in Bosnia and Herzegovina, Bosniaks, Bosnian Serbs, and Bosnian Croats. Each of the constitutions provides for some special measures that can only be fulfilled by members affiliated with one of the named groups. According to the original Cypriot constitution, in place between 1960 and 1963, a ratio of 7 to 3 of Greek Cypriots to Turkish Cypriots in the legislature and public service was set. In Bosnia and Herzegovina, the position of president is shared by a presidential council, made up of representatives of the three ethno-national groups, defined by Bosnia and Herzegovina’s constitution as “constituent peoples.” Such arrangements allegedly infringe on the state’s obligation not to discriminate between members of these groups and other citizens. In comparison, liberal consociational arrangements avoid constitutionally entrenching group identities and do not predetermine powers and positions for them. Such arrangements, to a large extent, leave the question of who shares power, and which powers, in the hands of voters. This type of power-sharing can be facilitated by setting low thresholds for cabinet formation (e.g., establishing that any party with a 10 percent share of the votes is entitled to executive portfolios). It can also be facilitated by selecting cabinet members according to a procedure like the D’Hondt formula – which is used for example in Northern Ireland – where portfolios are allocated on a proportional basis. Other methods are used, for example in Macedonia and in Iraq (McCulloch, 2014, 503–504). While this system makes sure that no significant social group will be excluded from political decision-making, it nonetheless leaves the definition of the groups open to the constituency and whatever parties gain popular support. The development of these “liberal” versions of power-sharing addresses two of the problems mentioned earlier. As McCrudden and O’Leary clarify: “Whereas corporate consociation accommodates groups according to ascriptive criteria, and rests on the assumption that group identities are fixed, and that groups are both internally homogeneous and externally bounded, liberal consociation rewards whatever salient political identities emerge in democratic elections, whether these are based on ethnic groups or on other subgroups or transgroup identities.” Furthermore, they argue that over the long run, the power-sharing approach, and especially its liberal versions, “may be a more successful way of achieving a less ethnic or nonethnic political future” than other forms of liberal democracy (McCrudden & O’Leary, 2013b, 483–484). However, one should acknowledge the limits of these responses. While the use of liberal models of power-sharing should be promoted and favored, it

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must be realized that it is not always feasible, especially in the real context of ethno-national conflicts. Moreover, while there is a substantive difference between liberal and corporatist versions of power-sharing, in reality the difference may be mostly technical (Bell, 2013, 214). Thus, a full response needs to engage more fully with the fundamental legal and principled objections, and aim to find a way to reconcile in principle the legal framework and the political reality. Attempts at such conceptualizations can be found in articles by Henry Steiner and David Wippman (Steiner, 1990; Wippman, 1998), as well as in much of the extensive writing on liberal multiculturalism and minority rights. However, since liberal justifications for minority rights do not necessarily engage with the political apparatus of the entire state, these accounts are not sufficient to properly respond to the current challenge. 5.4  ETHNIC POWER-SHARING IN THREE LOCALES OF ETHNO-NATIONAL CONFLICT

The three cases of Cyprus, Bosnia and Herzegovina, and Northern Ireland provide good illustrations of how, why, and which power-sharing arrangements are used in deeply divided places. In the cases of Cyprus and Northern Ireland, I have divided the review into two, corresponding with the two “rounds” in which the states’ political systems were designed as a power-sharing democracy. 5.4.1 Cyprus 5.4.1.1  Round I: The Rise and Fall of Reluctant Cypriot Power-Sharing

The model of ethnic power-sharing was first introduced in Cyprus during the late 1950s by Britain through its relinquishing of colonial control. In the background of the British decision to grant Cyprus independence were the nationalist Greek Cypriot demands for enosis – unification with the “motherland” Greece – and the nationalist Turkish Cypriot response of taksim (partition of the island) (Michael, 2009, 19). Because of strategic interests in creating partnerships with Greece and Turkey, Britain invited both to be involved in Cyprus. The result of those consultations – to which leaders of the local communities were not party and were only invited to sign off on – was the London–Zurich Agreements that were later incorporated in Cyprus’ constitution, which became known as “the Zurich constitution.” According to the Zurich constitution, Cyprus was established as a presidential republic, with special ethnic power-sharing arrangements relating to its ethno-national composition. The state’s powers were to be exercised jointly by the two

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communities comprising the vast majority of the island’s population, referred to at the time as the Greek and Turkish communities of Cyprus. Since these constitutional arrangements were dependent on clear community demarcation, the constitution defines these two communities. According to Article 2 of the Cypriot constitution: 1. The Greek Community comprises all citizens of the Republic who are of Greek origin and whose mother tongue is Greek or who share the Greek cultural traditions or who are members of the Greek-Orthodox Church; 2. The Turkish Community comprises all citizens of the Republic who are of Turkish origin and whose mother tongue is Turkish or who share the Turkish cultural traditions or who are Moslems[.]

However, since not all the inhabitants of the island were members of these two groups, and to accommodate possible members of the two communities who wished to opt out, the constitution provides additional provisions such as rules and procedures for clearly categorizing citizens (Article 2, sections 3–7). The specific arrangements set the presidency of Cyprus as comprising a Greek president and a Turkish vice president with veto powers; the government or “Council of Ministers” to be composed of seven Greek and three Turkish ministers (Article 46); and the legislature or “House of Representatives” to comprise 50 representatives following the same ratio of 70 percent Greek and 30 percent Turkish members (Article 61). This ratio of representation, the constitution clarifies, “shall be independent of any statistical data.” While a “simple majority” was sufficient to pass laws, key decisions, including changes to the constitution, electoral law, municipalities, duties, and taxes, required special majorities in each of the communities. A special provision in the constitution clarified that “the basic articles” taken from the London–Zurich Agreements cannot be changed in any way (Article 182.1). The allocation of offices according to ethnic affiliation also encompassed the public service (70/30), the Cypriot Army (60/40), and the security forces (70/30). The High Court of Justice followed this ethnic differentiation and was composed of two Greeks, one Turk, and a neutral judge as president who had two votes (Article 153). The power-sharing arrangements were also applied to the municipal level (Article 173) as well as to the economic sphere. The governor and the deputy governor of the “Issuing Bank of the Republic” were not to belong to the same community (Article 118), and the power to impose taxes and levies was separated into two Communal Chambers, each with the power to impose taxes and levies only on its community (Articles 78.2 and 87(f)). Requisition of land and movables included an obligation

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to respect the original ethnic ownership (Article 23). Educational and cultural autonomy was granted to each of the communities (Article 87(b)), and respect for the distinct national affiliation of the two communities was also granted. This dual national respect was expressed by provisions legitimizing the flying of the Greek and Turkish flags together with the flag of the Republic of Cyprus, and the celebrating of Greek and Turkish national holidays (Articles 4 and 5). At the same time, the constitution incorporated the obligation to maintain the national unity of independent Cyprus and stipulated that “The total or partial union of Cyprus with any other state or a separatist independence is excluded” (Article 185). The “Treaty of Guarantee” signed between the Republic of Cyprus, Greece, the UK, and Turkey was also incorporated as part of the London–Zurich regime. In the treaty, the three guarantor states undertook to ensure the “independence, territorial integrity and security of the Republic of Cyprus,” an obligation and a prerogative that were invoked by Turkey in 1974. When the London–Zurich Agreements were signed in 1959, they were met with mixed public responses. While many Cypriots were relieved that the state of emergency had ended, many others regarded the agreements as an imposed arrangement, and still others, especially the more radical members of EOKA (Ethniki Organosi Kiprion Agoniston, National Organization of Cypriot Fighters) regarded them as temporary arrangements that should be changed at the earliest opportunity. Despite these mixed responses, the choice of power-sharing at the time was not unreasonable (Bölükbaşi, 1998; Hadjipavlou-Trigeorgis & Trigeorgis, 1993). On the one hand, the two communities were intermingled across the island, thus not presenting favorable terms for partition. On the other hand, their separate identities with separate community leaders and administrative arrangements rooted in the millet system (arrangements used within the Ottoman Empire that facilitated a form of indirect rule based on religious difference, see Barkey & Gavrilis, 2016), were already part of the law of the land when the British inherited it from the Ottoman Empire. Furthermore, the two communities seemed to possess salient group identities already prior to independence, each raising different and opposing national demands, thus not presenting favorable terms for “majoritarian democracy” either. Therefore, notwithstanding the British self-interest in the production of ethnic division, I suggest that the choice of a power-sharing system under such conditions provided a better strategy than other available alternatives. By 1963, only three years after independence, the demand for the revision of the constitution had become almost unanimous on the part of the Greek

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Cypriots. The constitutional collapse, followed by an outbreak of intercommunal fighting, was led primarily by Greek Cypriots in attacks against the Turkish population, which was smaller in size and arms (Crawshaw, 1964). The violence hardened the attitudes of the two sides in Cyprus. The Turkish Cypriots demanded a federal form of government and were convinced, after their experiences at the hands of the Greek Cypriots, that, other than partition, only such a federal arrangement could give them adequate physical security. The Greek Cypriots, on the other hand, were determined to set up a unified state in which the Turkish Cypriots would have minority rights, and thus objected to a federal state. They feared that a federal solution would pave the way to partition and might result in many Greek families needing to leave the new Turkish area (Crawshaw, 1964). Indeed, the inherent complexity of the constitution, and in particular its corporate power-sharing provisions (including the special veto powers and the public service quotas), contributed to the breakdown of the settlement. The collapse of the power-sharing Zurich constitution is a strong example of how power-sharing arrangements can fail in deeply divided and postconflict societies. However, while this is one potential conclusion, other explanations are also possible (Loizides, 2018). For example, in 1964 Nancy Crawshaw argued that the main reason for the collapse was the “lack of goodwill” between the Greek and Turkish communities that had persisted since the intercommunal fighting of 1958 (Crawshaw, 1964). “A lack of goodwill” is an amorphous observation, which does not tell much about the roots of the violent conflict between the two communities. What seems to lie beneath this lack of goodwill is a combination of political resentment and frustration on the side of the Greeks, coupled with a belief that they would be able to impose constitutional changes by force. As the clear majority on the island, the Greeks felt (and continue to feel today) that they “deserve” to control Cyprus and manage it as their own. With the majoritarian democratic model as the perceived ideal of a modern democratic state, the power-sharing arrangements that granted the Turkish community special safeguards, including more powers and public positions than their actual share of the population, was (and is) perceived to be unfair. 5.4.1.2  Round II: Power-Sharing as the Framework for Peace The negotiations that resumed in the mid-1970s took place within a brand-new reality. Following the mass population transfers during 1974, the two communities were totally separated, both physically and politically. Despite the physical separation between the communities, the framework for the solution

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remained unchanged: a united Cyprus. This paradigm is heavily supported by the international norm of territorial integrity and is also embedded in the original constitution of Cyprus, the Treaty of Guarantee, and recurrent UN resolutions set to secure the “independence, unity, sovereignty and territorial integrity of the Republic of Cyprus” (Art. 42, 59, 69, 100, 181 of the Constitution of the Republic of Cyprus; General Assembly resolutions 3212 (1974), 3395 (1975), 34/30 (1979), and 37/253 (1983); Security Council resolutions 186 (1964), 365 (1974), 649 (1990), 716 (1991), and 750 (1992)). Accordingly, not only was full or partial annexation to Greece or Turkey excluded as a possible solution, but also any act of partition. Since partition was not an option, the negotiations needed to establish the constitutional underpinnings of a reunited Cyprus. Despite the Greek Cypriots’ resistance to these “new facts on the ground,” these facts found their way into the negotiation parameters. By the 1990s the format of a “bi-communal, bi-zonal federation with political equality,” reiterated in the joint declaration of the two leaders from February 11, 2014, has been officially accepted by the UN Security Council and the two communities. However, the exact state structures and the allocation of powers remained highly disputed. In the decades that had elapsed since the peace talks were resumed after 1974, the “Annan Plan” – named after the secretary-general of the UN at the time – was the only full peace plan to be published and voted upon in an official referendum.5 The plan was the result of peace negotiations that took place during the early 2000s under the auspices of the UN. In 2004, on the eve of Cyprus’ accession to the EU, the Annan Plan was presented as a complete peace plan to resolve the conflict. The plan included the mutual recognition of “each other’s distinct identity and integrity,” and that their “relationship is not one of majority and minority but of political equality where neither side may claim authority or jurisdiction over the other” (Annan Plan, Main articles, Article III). The plan combines federal and consociational models and includes specific arrangements aimed at preserving the ethno-national demographic majority in each of the two constituent states. This is done by vesting the constituent states with powers to regulate citizenship and residency in their respective constituent state, which include powers to impose restrictions on the freedom of residency within the island (Foundation Agreement Annex II, Attachment 3, Constitutional Law on Internal Constituent State Citizenship Status and Constituent State Residency Rights). Furthermore, as part of territorial 5

The text of the plan is available at www.hri.org/docs/annan/Annan_Plan_Text.html, last visited February 17, 2022.

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adjustments aimed at allowing a significant return of refugees, the relocation of thousands of Turkish Cypriots and Greek Cypriots was supposed to happen. Once the Annan Plan was finalized, a referendum was scheduled to take place on both sides of the island on April 24, 2004. However, the final details were not agreed between the sides but “filled in” by the UN team. Together with the name that was given to the peace plan – the Annan Plan – this gave rise to claims that the plan was, again (like the original Zurich constitution from 1960), a foreign imposition of a constitutional regime that did not represent the choice and preferences of the local population. The failure to secure the support of the national leadership was detrimental to the plan. On April 7, 2004, Tassos Papadopoulos, the Greek Cypriot president at the time, “called for a resounding ‘no’ vote at the referendum for its failure to ‘satisfy the minimum targets’ set by the Greek Cypriot side” (Michael, 2009, 180). Despite the local objections, the referendum continued according to plan. Almost simultaneously, the long process of Cyprus becoming a member state of the EU had come to an end, and its full accession was scheduled to take place on May 1, 2004, notwithstanding the results of the peace talks and referendum. The referendum was held in both parts of the island on April 24, 2004 and was approved by 65 percent of Turkish Cypriots, but rejected by 76 percent of Greek Cypriots. A week after the referendum, the Republic of Cyprus joined the EU as planned. Since the peace deal did not materialize, it meant that part of a territory of a member state of the EU is an occupied territory. In February 2014, the leaders of the two communities published a joint declaration emphasizing the wish to resolve the conflict based on a bicommunal, bizonal federation with political equality for both communities (Joint Declaration of the Two Leaders, February 11, 2014). Following this declaration, comprehensive peace negotiations and discussions were held. These negotiations, while experiencing recurring shocks and setbacks, continued for several years and were facilitated by the UN, with the two local communities leading and controlling the process. Despite high hopes shared by those involved in the talks, this round of negotiations also collapsed, with the leaders of the two sides unable to reach an agreement (Smith, 2017; Miles, 2017). While many factors contributed to this failure, it seems that a significant reason is found in the Greek Cypriots’ position toward the concept of “equality” between the two ethno-national groups, which underlies the Annan Plan and subsequent peace efforts. As Michalis Stavrou Michael notes: “Greek Cypriots had always been uneasy with the concept of ‘equality,’ on the basis of their numerical superiority but also because of their sense of being the

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indigenous inhabitants of Cyprus” (Michael, 2009, 183). Indeed, as long as such perceptions of what is just and fair inform the position of Greek Cypriots, it seems hard to see how they may concede their “ownership” of the Republic of Cyprus and willingly share powers with the Turkish Cypriot minority. More efforts to renew the peace negotiations still take place from time to time. Following the failures of the previous attempts it could be expected that new approaches would be pursued. However, it seems that the same paradigm for peace, based on a “united Cyprus” coupled with a complex power-sharing arrangement combining federal and consociational arrangements, will be maintained. The international norm of territorial integrity, invoked by the Greek Cypriot side and strongly supported by the international community, continues to dictate this framework (Richmond, 1999). Indeed, as long as the “united Cyprus” paradigm prevails, ethnically based power-sharing arrangements seem to be the only constitutional arrangements to provide the Turkish Cypriot minority with essential safeguards against Greek Cypriot domination (Sözen & Özersay, 2007, 126). 5.4.2  Bosnia and Herzegovina: How Semi-imposed Power-Sharing Ended the War Democratic power-sharing was introduced to Bosnia and Herzegovina as part of the peace negotiations that took place during the war. Caught between the adamant rejection of secession by Bosniak Muslims and the international community, and the equally adamant rejection of majoritarian democracy by the two ethnic minorities, Bosnian Serbs and Bosnian Croats, power-sharing of the sovereign powers of Bosnia and Herzegovina seemed to be the only available compromise. The first step in establishing the complicated power-sharing scheme for Bosnia and Herzegovina was made in the Washington Agreement, signed on March 1, 1994. This agreement, largely forced on the conflicting parties by the USA, managed to put an end to the openly secessionist agenda of the Croat nationalists, as well as ending the war between the Bosniak and Croatian forces (Bieber, 2005, 63). In this agreement, “the Croatians and Bosnians agreed to a framework for a federation of Croat and Bosniac majority areas in BosniaHerzegovina and a preliminary agreement for a confederation between the Federation and Croatia” (Preamble, Washington Agreement). The agreement recognized Bosniaks and Croats as constituent peoples (along with others), and transformed the internal structure of the territories with a majority of Bosniak and Croat population into a federation “composed of federal units

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with equal rights and responsibilities.” Executive and legislative powers were allocated with clear reference to ethnic designation. One Bosniak and one Croat were to be elected by the legislature as the president and vice president and to serve one-year, alternating terms during a four-year period. At least one-third of the ministerial positions were to be occupied by Croats and government decisions that concerned the vital interest of any of the constituent peoples required consensus. The legislature consisted of two houses: the House of Representatives, to be elected democratically on a proportional basis in the federation as a whole; and the House of Peoples, including equal number of Bosniak and Croat delegates. Many of the state powers, including the areas of policing, education, culture, housing, and public services, were given to the 10 autonomous cantons. According to the agreement, the cantons were obligated to further devolve powers when “the municipality’s majority population is a minority in the canton as a whole” (“The Cantonal Governments,” Washington Agreement). The peace agreement reached at Dayton and formally signed in Paris on December 14, 1995 by the presidents of the Republic of Bosnia and Herzegovina, Croatia, and Yugoslavia remarkably managed to end the war in Bosnia and Herzegovina. Several failed peacemaking attempts and extensive international intervention preceded the Dayton process. The road to the successful agreement was paved with what has been termed “coercive mediation” by the USA (Touval, 1996, 547). Coercion or not, an agreement between the warring sides needed to be signed and – more importantly – sustained. At the time of its conclusion, it was not at all clear whether the Dayton Agreement would succeed, in contrast to the earlier efforts to settle the war (Touval, 1996, 547). Today, it is clear that the Dayton Agreement managed to end the war. At the same time, it is highly criticized for creating a dysfunctional state dominated by ethno-nationalist political elites (Mujkić, 2008; Parish, 2009, 222–223). The building blocks of the political compromise established in Dayton follow the same route of rigid power-sharing arrangements that had already been agreed to in the Washington Agreement. Power-sharing was not the first choice of either of the sides to the conflict. While the Serbs were still fighting to create their own mono-ethnic state, Alija Izetbegovic, Bosnia and Herzegovina’s president at the time of Dayton, was described as the most reluctant because “he was giving up sole leadership of his country – flawed as it was – for a power-sharing arrangement” (Chollet, 2007, 162). Yet, given the rejection of partitioning Bosnia and Herzegovina, power-sharing seemed to be the only reasonable alternative that might be supported by all sides to the conflict. Consequently, the power-sharing Bosnia and Herzegovina

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Constitution played a prominent element in Bosnia and Herzegovina’s peace deal. The constitution labels the three ethnic groups the “constituent peoples” of Bosnia and Herzegovina – understood as a “state creating” people (Rosenberg, 2007, 329, fn 62; McCrudden & O’Leary, 2013a, 27) – and allocates state powers among them. This was done through a complex power-sharing scheme that combines federal and consociational arrangements. Federalism was used to divide the state into two substate entities: the Federation of Bosnia and Herzegovina, where most of the inhabitants are Bosniaks and Croats; and Republika Srpska, where most of the inhabitants are Serbs. The division between the two entities traced the front lines at the end of the war, with some territorial adjustments (Bose, 2007, 132–133). The establishment and recognition of the Serb Republic as an autonomous entity were the key concessions to Bosnian Serb demands, concessions that were not granted to the Bosnian Croats (but they had retained the powersharing arrangements contained in the Washington Agreement) (Bose, 2007, 133–134). Consociational arrangements are used to allocate the political powers that were not devolved to the federal states and remained at the center at the level of the Republic of Bosnia and Herzegovina. Despite the size differences between the Bosniak, Bosnian Serb, and Bosnian Croat populations (around 45 percent, 36 percent, and 15 percent, respectively), the political positions and decision-making powers are allocated according to formal equality. The major consociational arrangements include the presidency formed as a presidential council consisting of three members, one from each of the constituent peoples, and the upper chamber of legislature (i.e., the House of Peoples), consisting of 15 delegates, 5 from each of the three groups. In addition, the legislature branch of Bosnia and Herzegovina consists also of a 42-member House of Representatives. Two-thirds of the representatives are elected from the territory of the Bosniak–Croat entity – the Federation of Bosnia and Herzegovina – and one-third from the territory of the Serb Republic (McCrudden & O’Leary, 2013a, 25–26). All legislation requires the approval of both houses. While decisions in both houses are by a majority of those present and voting, they should attempt to secure a majority that includes at least one-third of the votes from each of the territories. In addition, each of the three groups has a veto power that can be activated by a declaration made by a majority of the delegates of one of the three groups that a decision is destructive of their group’s “vital interest.” The Dayton Agreement is not only internally based on power-sharing, but also includes external confederal dimensions. Each of the two substate entities was given the right to establish and develop special ties of cooperation

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with the neighboring ethnic kin-states of Serbia–Montenegro and Croatia. This strategy of “soft” borders, both inside Bosnia and Herzegovina and across its international frontiers, enabled the accommodation of conflicting demands among the three groups. For Bosnian Muslims, it enabled the rejection of a hardline partition of the country. For Bosnia’s Serbs and Croats, it enabled the continuation of ties with their kin-states, also allowing Bosnians to hold parallel citizenship in the neighboring states of Croatia and Serbia (Bose, 2007, 135). Alongside the power-sharing constitutional structure, the agreement incorporates extensive commitments to individual human rights, both in Annex  4 as part of the constitutional provisions of Bosnia and Herzegovina and Annexes 6 and 7, which focus on human rights and securing the return of refugees. Article II to the Bosnia and Herzegovina Constitution provides that the “rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other law” (emphasis added). In addition, Annex 7 of the agreement guaranteed one of the most ambitious commitments: an unconditional right of return to all persons who were displaced during the war. The international community undertook great efforts to facilitate this right of return, to assure freedom of movement across all former front lines, and to provide security to returnees (Bose, 2007, 136). The implementation of the Dayton Agreement required massive international intervention and support, especially during the first 15 years after its signing (Merdzanovic, 2017). While the Bosnian peace agreement is commonly described as imposed on the parties by coercive mediation, it should be acknowledged that at least the fundamentals of the powersharing arrangements found at the core of the agreement are heavily rooted in local traditions. The idea of the equality of its peoples (idea of ethnic equality) was a central feature of the Yugoslav political system. It was implemented in practice through a combination of federalism and an informal “ethnic key,” which meant that all positions from the top down were carefully allocated across ethnicities (Gagnon, 2006, 73; Mujkić, 2008, 119–120). It thus can be argued that borrowing the Western model of majoritarian democracy – done without much thought at the time of transition to democracy in the early 1990s – was in fact more foreign to the region. This may have been one of the reasons it was ill-equipped to address the local circumstances. Notwithstanding the agreement’s success in ending the war, its rigid ethno-national constitutional character has been vehemently criticized.

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It is argued that the settlement entrenches and perpetuates ethno-national divisions; that it rewards ethno-nationalist divisive politics; that it empowers the more extreme nationalistic political elites instead of rewarding moderates and interethnic cooperation; and that it contributes to dysfunctional political and bureaucratic systems (Keil & Kudlenko, 2015). An additional criticism that I review in Chapter 6 concerns the violation of the key liberal values of individualism and equality and of binding legal human rights commitments that, according to the agreement itself, become part of Bosnia and Herzegovina’s laws. While these criticisms raise valid and serious concerns, they have been met with convincing answers, both in general and with regard to the specific circumstances prevailing in Bosnia and Herzegovina (McEvoy & O’Leary, 2013, 411–413; McCrudden & O’Leary, 2013a; 2013b). 5.4.3  Northern Ireland Nationalists, republicans and unionists—we have all travelled far in our thinking and attitudes over the years of this peace process …. What was the inconceivable is now the common place and the norm. (John Hume, speech delivered to SDLP annual conference, November 14, 1998)

5.4.3.1  Round I: The Rise and (Rapid) Fall of Power-Sharing As the democratic tradition in the UK assumes it to be based on majority rule, the ideas of sharing state powers and granting equal and mutual recognition to the two national traditions of Northern Ireland were not the “default” paradigm for any of the sides to the conflict. How did it happen that the powersharing option was raised at all despite strong opposition, and was eventually preferred over the traditional and long-established system of majoritarian democracy? The Catholic civil rights protests, starting with the human rights parades in Derry/Londonderry during the late 1960s, could have suggested that the issues at the heart of the conflict would be articulated around human rights and equality demands. However, things changed very fast, altering the way the conflict was perceived by all sides. Overriding the initial attempt at a nonviolent human rights struggle, the struggle became a violent conflict between two opposing national communities: Irish Nationalists who demanded the unification of Ireland and British Unionists who perceived this demand as an existential threat to the union of Northern Ireland with

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the UK. What was generally missing was a clear concept of what peace in Northern Ireland should or could look like and what could be a possible solution for this zero-sum game. This missing concept was eventually created and evolved into a concrete constitutional scheme by British civil servants. The SDLP, which emerged from the civil rights movement, was formed in August 1970 as a political party pursuing internal reform of the Northern Irish political system. At the SDLP’s first press conference, its leader, Gerry Fitt, announced: “We support the maintenance of Stormont at the present time as it is the only institution which can bring about the reforms we desire” (McGrattan, 2009, 64). However, it took the party less than a year to become disillusioned by the prospects of internal reform within the majoritarian Stormont system and to decide to walk out of Stormont. As John Hume reflected many years later, Stormont had no real part to play in resolving our problem since it was based on majority rule … Unionism was about holding all power in their own hands … It was becoming quite clear that Stormont itself was not going to bring about any change. Therefore, a necessary part of the strategy was to try to bring it down and have it replaced—that was the thinking behind the withdrawal factor. (McGrattan, 2009, 64)

Subsequent events brought more radicalization of the Catholic community. Two events played a crucial role here: the introduction of internment based on emergency legislation (342 Irish Catholics were arrested on the same day of August 9, 1971; Spjut, 1986) and “Bloody Sunday,” which occurred during a peaceful protest march for human rights against the internments, at which British soldiers shot 26 unarmed civilians. A total of 13 protesters died. Many of the dead were shot in the back while fleeing from the soldiers and some were shot while trying to help the wounded (Conway, 2003). These events brought a rapid rise in violent incidents, followed by the suspension of the Northern Irish Parliament and the introduction of direct rule from London. The rising violence and concerns it might turn into a full civil war brought the British government to initiate an investigation into possible ways forward to restore peace in Northern Ireland. This investigation included a series of roundtable talks in an effort to find agreement on the political future of the region. From the British Protestant side, the Alliance Party of Northern Ireland and the Northern Ireland Labour Party (NILP) took part, but the Unionist Party (UP) did not. The SDLP, the party coming from the Irish Catholic side, refused to attend in protest at the continuation of internment. However, written proposals were accepted and

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the UP and the SDLP submitted such proposals within the consultation process. In its written proposals, the UP emphasized the need for cementing the union with Britain, coupled with a local parliament and government of Northern Ireland (Unionist Party, 1972). However, the UP proposal includes a suggested reform known as “the Committee system,” which held that at least three out of six parliamentary committees should be headed by opposition parties. The UP paper emphasized the new advantages: “The Committee system is designed to allow the maximum minority influence commensurate with majority government.” The SDLP proposal outlined the nationalist agenda, with a clear demand to work toward the unification of the island. However, the fundamental ideas behind the written proposal proved insightful, as they speak of the need “to create an interim system of Government which will take into account the need to give fair expression to the present basic loyalties of both sections of the people of the North.” Hence, the problem that the SDLP found with the current political system “or any of the more civilized versions of it now being proposed by other parties (such as N.I.L.P. and ALLIANCE) is that they fail to give full expression and protection to the basic Irish aspirations of the Catholic community” (SDLP, 1972). Following these consultations, the British government produced and published “The Future of Northern Ireland: A Paper for Discussion.” At the end of a lengthy review, the document states the criteria for a future settlement, and it is striking to see how much of the future GFA is already found 26 years earlier in this British government proposal of 1972. While clearly rejecting the SDLP proposal for a united Ireland and joint British– Irish sovereignty of Northern Ireland in the interim period, it did not support the UP’s wishes either. Instead, the paper borrows the idea found in the SDLP proposal of separating the issues of the international status of the territory and the way it should be governed. Regarding the international status, the British government adopted the principle of consent: “Northern Ireland must and will remain part of the United Kingdom for as long as that is the wish of a majority of the people.” With regard to local political institutions, the paper identified that the roots of the conflict are a mix of the clash of national aspirations, as well as social and economic conditions such as inadequate housing and unemployment. Hence, the paper points to the need that any new political institutions in Northern Ireland must first seek a much wider consensus and be capable of providing concrete results of good government, including social and economic progress. Although the British paper does not reject majoritarian rule with minority safeguards, it does seem to prefer another way forward: “but there are strong arguments

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that the objective of real participation should be achieved by giving minority interests a share in the exercise of executive power.” Furthermore, the recommendations emphasize the obligation to ensure “absolute fairness and equality of opportunity for all” and that the future administration of Northern Ireland must be seen as completely even-handed both in law and in fact. Regarding local political institutions, the document clarifies the need to acknowledge the “Irish dimension”: “Any new arrangements for NI should, whilst meeting the wishes of Northern Ireland and Great Britain, be, as far as is possible, acceptable to and accepted by the Republic of Ireland.” The paper was widely circulated in Northern Ireland and was followed by extensive consultations. The more hardline Unionist parties and organizations, including the Orange Order, the UDA, Ulster Vanguard, and the DUP, rejected its proposals. Nevertheless, the proposals were incorporated into a white paper that was published in March 1973, which laid out the areas of agreement and provided a detailed set of recommendations (Secretary of State for Northern Ireland, 1973). The 1973 white paper included for the first time a proposal to set up a power-sharing political system in Northern Ireland that would consist of an assembly and executive to be elected by proportional representation and based on partnership and agreement between Unionists and Nationalists. Remarkably, it was now official British Government policy that Unionists would have to share power with Nationalists at the cabinet level (Hennessey, 2016, 76). Moreover, the white paper clearly declared the support of the British Government for the establishment of institutional arrangements for consultation and cooperation between Northern Ireland and the Republic of Ireland (Secretary of State for Northern Ireland, 1973, para. 110). The proposals also addressed the issue of discrimination and set clear obligations to provide for mechanisms to prevent state-sanctioned discrimination. The paper ends with the assertion that its proposals will not work without the full cooperation of the people of Northern Ireland and that they are doomed to fail “if any section of the community is determined to impose its will on another. It should now be perfectly clear that these are prescriptions for disaster” (para. 122). Based on the 1973 white paper, a new Northern Ireland Constitution Bill was enacted. Elections to the new assembly took place and on November 22, 1973, a new power-sharing executive of 11 members was set up. However, the parties did not manage to resolve the question of the proposed “Irish dimension” and an additional conference at Sunningdale was organized. The Sunningdale Agreement, signed on December 9, 1973, reaffirmed the international status of Northern Ireland as part of the UK and emphasized

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that this status would change only if the majority of people in Northern Ireland voted for it. The conference also agreed that a Council of Ireland would be established, consisting of an executive council of 14 ministers (7 from Dublin and 7 from Northern Ireland) and a Consultative Assembly that would consist of 60 members (30/30) (Sunningdale Agreement, Article 7). A power-sharing system in Northern Ireland with a confederal dimension between Northern Ireland and the Republic of Ireland was launched (Hayes, 2007, 100). But these arrangements did not last for long. Although opposition to the new arrangements came from both Irish Republicans and Unionists, it was the Unionists who took it down. Growing opposition from unionists brought about the initiation of the Ulster Workers’ Council strike, which took place during May 1974. The strike was called to protest the “Irish dimension” agreed upon in the Sunningdale Agreement, which was portrayed as giving the government of the Republic of Ireland a direct say in the running of Northern Ireland (Melaugh, 2016). The strike lasted for two weeks and succeeded in bringing down the power-sharing Northern Ireland Executive. “Direct rule” from London was reintroduced. While the objection to the Irish dimension was the official label given to the Unionist protests, it seems that the real objection was to the sharing of the political power of Northern Ireland (Hayes, 2007, 100–101; Kerr, 2006). As Brian Faulkner, the last prime minister of Northern Ireland and the leader of the UUP, wrote in a personal letter in 1976: “Certainly I was convinced all along that the outcry against the Council of Ireland was only a useful red herring—the real opposition was to sharing of power” (Dorr, 2010, 384). What do all these documents, deliberations, and agreements demonstrate? That at a relatively early stage of the modern conflict, various political leaders and civil servants realized that the “Westminster model” of majoritarian democracy was not suitable for the situation in Northern Ireland. The recognition that wider popular support is essential and that a more inclusive government system needs to be established won recognition from the British government, the Irish government, and moderate forces within both the Unionist and Nationalist communities. The principles and constitutional contours that were established during the period of 1972–1974 informed the various peace attempts, partial agreements, and declarations that followed, culminating in the GFA. Indeed, a number of commentators covering the political discussions that led to the GFA were struck by how similar it was to the power-sharing arrangement and the Sunningdale Agreement that were negotiated in 1973 (Gillespie, 1998; Hennessey, 2016, 1; Neuheiser & Wolff, 2004, 18).

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5.4.3.2  Round II: The Evolution and Adoption of Power-Sharing Maurice Hayes describes the leading approach in Northern Ireland in the late 1970s and beginning of the 1980s as based on the assumption that peace could be achieved through a center coalition of moderate parties. It was believed that such a coalition would attract growing public support and narrow the support for the extremists. However, the opposite happened. Violence and counter-violence led the communities further apart into segregated living areas and shrank the support for a moderate center. But during the mid-1980s, this approach seemed to change with the success of Sinn Féin – a nationalist political party with clear political affiliations with the IRA – to achieve an impressive electoral rise after a number of IRA prisoners went on hunger strike. In the face of this electoral rise, the British Prime Minister Margaret Thatcher was prompted to act and together with the Irish Taoiseach (prime minister) Garret FitzGerald signed the Anglo-Irish Agreement in November 1985 (Dixon & O’Kane, 2014, 52; FitzGerald, 1991; Thatcher, 1993). The agreement established the right of the Irish government to be consulted on Northern Irish issues. While it provoked Unionist rage, it started an impressive process of collaboration between the UK and Ireland. Moreover, from the end of the 1980s onward, much effort was made by various players to include the IRA in negotiations. The Northern Ireland experience shows the vitalness of manifold actions, policies, and processes to the successful consolidation of a power-sharing system of government, beyond its endorsement in official statements. As can be seen from the Cyprus experience, official endorsements of powersharing are important, but are far from enough. While there is no one agreed account that explains how eventually the transition from conflict to power-sharing–based peace has been successful in Northern Ireland, I wish to point here to two processes that took place during the decades before the GFA that seemed to play a significant role. These include the strategic advancement of power-sharing – between Nationalists and Unionists  – in local government, which the SDLP promoted (Knox, 1996; Hume, 1998). Another strategic process was the dissemination of the idea of powersharing as the proper model of the government for Northern Ireland among civil society. During the late 1980s and the beginning of the 1990s, voices within civil society endorsed and promoted similar understandings. These voices are reflected in the work of the Opsahl Commission (Elliott, 2013), launched as a civil society initiative in 1992 at a time of stalemate in the peace efforts. It attracted wide poplar attention and participation, including submissions from around 3,000 people. In its final report it concludes:

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“It is evident from the views submitted to the Commission that a parliamentary system of government based on the Westminster model, with its emphasis on majority rule, is not a suitable model for the governing of this fundamentally divided society” (Opsahl Commission Report, 1993, para. 1.2). In its report, the Commission uses the expression “parity of esteem,” which became a key political concept eventually endorsed in the GFA (for the evolution of this term see Hennessy & Wilson, 1997: “National questions”). “Parity of esteem,” as Padraig O’Malley explains, “is a simple concept but requires a fundamental reorientation of behavior on both sides.” The concept implies respect for each other’s narratives. While it does not require acceptance or agreement with that narrative, it does require that each of the parties accept the other side’s right to define its own narrative and its aspirations. O’Malley emphasizes that the important component of the idea is respect, which is regarded as a fundamental step in the difficult process of translating peace agreements into sustainable reconciliation (O’Malley, 2016, 57). The Commission clarifies: “Parity of esteem” between the two communities should not only be an ideal. It ought to be given legal approval, promoted and protected, in various ways which should be considered. Such recognition could be made operational at the highest level by an Act of Parliament. We recommend that the government moves to examine the feasibility of drafting such legislation, explicitly to recognize Irish nationalism in Northern Ireland in relevant ways. (Opsahl Commission report, 1993, para. 1.3)

This expression adopted by the Commission gives a name to the understanding, previously implied in the “Irish dimension,” that equal and mutual respect for the identity and ethos of both communities must be granted and practically guaranteed. The GFA, signed in 1998, is organized around three strands: structures within Northern Ireland; North–South institutions (between Northern Ireland and the Republic of Ireland); and East–West relations (between the UK and Ireland). One of the central elements of the agreement was achieving equality between the two main communities in Northern Ireland through a significant restructuring of the Northern Ireland Constitution. This restructuring altered Northern Irish democracy from a majoritarian system to consociational arrangements (O’Leary, 1998; McCrudden, 2013). Unlike the Cypriot and Bosnia and Herzegovinian power-sharing arrangements, the Northern Irish model for political participation is not based on ethno-national quotas, but mainly on proportional allocation of parliamentary representation and executive positions, and on the constitutional

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obligation that key decisions must be taken on a “cross-community” basis. The consociational arrangements include a jointly held head of state (O’Leary, 2018, 224), participation of all major parties in the government (according to the D’Hondt “sequential and proportional allocation mechanism”), and multiple veto provisions to prevent simple majoritarian dominance (McCrudden et al., 2016). In order to pass legislation in the assembly, either concurrent majorities of registered Unionists and Nationalists (“parallel consent”) are required or a qualified majority of at least 60 percent, including at least 40 percent of registered Nationalists and Unionists respectively (“weighted majority”). These rules may be triggered by a “petition of concern” signed by 30 Members of the Legislative Assembly (O’Leary, 2018, 225). Apart from power-sharing at the level of the legislature and the executive, the GFA includes three additional legislative features: fair employment legislation that was minimally reformed; the establishment of a public-sector equality duty; and the (now repealed) quota provisions regarding the recruitment of the Northern Ireland Police Service, which aimed at (approximate) proportionality in the Northern Ireland Police Service and Policing Board (McCrudden, 2013; Doyle, 2010; McGarry & O’Leary, 2004b). Beside the specific arrangements that promote equal allocation of state power and equality in some core socioeconomic issues for both groups, the agreement also holds that the power of the sovereign government shall be founded on the principles of full respect for equal human rights protections for all citizens and parity of esteem for both communities (GFA, Article 1(v)). Furthermore, the second and third strands of the negotiations, which concerned the external dimensions of the conflict, produced the North– South Ministerial Council, the British–Irish Council, and the British–Irish Intergovernmental Conference. As a whole, the arrangements set out in the agreement can be seen as creating a system combining a consociational democracy with overarching confederal and federal arrangements (O’Leary, 2018, 225). The GFA was approved by the majority of the people of the island – North and South – in a double referendum that was held on May 28, 1998. Following the peace agreement, a power-sharing assembly was soon elected, but the transfer of powers to the local Northern Ireland government met with difficulties. The constructive ambiguity of the agreement, which enabled it to be concluded by the deadline announced by Senator George Mitchell who presided over the negotiations, led to multiple interpretations and controversies over its implementation (Shirlow & Coulter, 2007, 211). It took Northern Ireland eight more years and another agreement

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(the St  Andrews Agreement) to arrive at a power-sharing executive. Accounts of Northern Ireland during the first decade after the agreement were somewhat grim and included the persistence of sectarianism in both politics and society at large (Mac Ginty et al., 2007; Shirlow & Coulter, 2007). However, accounts after the 2016 parliamentary elections suggested positive changes (Garry et al., 2017; O’Doherty, 2016). While the peace arrangements seem to constantly experience shocks and setbacks, the peace agreement survives. Perhaps due to the agreement’s relative success, its original power-sharing institutions have been criticized – particularly by the biconfessional Alliance Party, but also by other local parties (e.g., UUP, DUP, SDLP) (McCrudden et al., 2016, 31). First the power-sharing institutions were seen as unstable and later they were accused of being ineffective (Wilford, 2009; Wilson, 2009) and as hindering the emergence of a postconflict society in which “normal” politics would occur. They were also said to reinforce ethnic and sectarian divisions and limit the potential of intercommunal parties (such as the Alliance Party and the Greens) and of the more moderate parties of both communities (UUP and SDLP). The institutions have also been charged with contributing to an increase in social segregation and of being undemocratic because they allow all major parties into government, which is seen as inconsistent with the strong opposition that is a fundamental feature of the Westminster model of democracy. It has also been argued that the arrangements may even be illegal insofar as they are in breach of the European Convention of Human Rights (McCrudden et al., 2016, 35). This particular charge has been leveled against the use of community designation, as members of the Northern Ireland Assembly are required to self-designate as “Nationalist,” “Unionist,” or “Other,” which affects key political decisions (McCrudden et al., 2016, 34–35). It has been argued that these arrangements violate the equality of citizens as a fundamental legal right, adherence to which is a requirement of the agreement. These criticisms resulted in the government’s decision to undertake a “consultation” process on increasing the effectiveness of the institutions, in which the questions around D’Hondt, designation, and opposition were the most contested (Northern Ireland Office, 2013, para. 27). Following consultations, the review committee’s final report did not recommend substantive changes, a result that was supported by leading scholars who also participated in the proceedings (McCrudden et al., 2016). The dramatic move of the UK to leave the EU (“Brexit”) opened many new questions and its consequences for Northern Irish peace are still unclear (McCrudden, 2017; Todd, 2017; Doyle & Connolly, 2017; Humphreys, 2018; O’Leary, 2018).

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5.5 SUMMARY

Outside scholarly debates, democracy is usually equated with majority rule and, at best, with constrained majoritarian democracy. The assumption is that majoritarian democracy is the most suitable democratic model to guarantee the liberal and human rights values of individual political equality and political inclusion. Ethnic power-sharing systems, which rely on ethnic identification of individuals and often predetermine the allocation of political decision-making powers and public offices, are based on these identifications as a pragmatic political solution in deeply divided places. Power-sharing is frequently used to address the demands of specific protagonists, mainly combatant groups, and is primarily justified on these terms as an indispensable tool for resolving ethno-national violent conflicts. Bearing in mind the limitations of partition and liberal democracy as tools for settling ethno-national conflicts, the clear rise in the use of power-sharing systems as an integral part of peace agreements is not surprising. While the debate over the preferred power-sharing model and arrangements has not been resolved and empirical study shows no clear preference for any specific model as universally suited to secure political inclusion, peacemaking practice opts for complex power-sharing systems that aim at interethnic inclusion. As demonstrated in each of the three cases examined here, a special design of power-sharing institutions has been used (or offered to be used) to adapt to the local conditions and needs. At the same time, all three cases do share one major thing in common: political recognition of the legitimacy of different ethno-national groups. Instead of the usual hierarchical order between groups that characterizes places riven by ethno-national conflicts, or the perception of these groups as majority and minority, the political agreements in the three cases here demonstrate a choice to declare their substantive equality: political equality in Cyprus, constituent peoples in Bosnia and Herzegovina, and parity of esteem in Northern Ireland. The power-sharing mechanisms ensure that competing collectivities have a share of governmental powers and a better positioning in preventing any one group from becoming dominant and overriding essential interests of the others. While power-sharing arrangements – even when agreed to and implemented – cannot eradicate the danger of ethnic domination, as is demonstrated in the Cypriot case, they present the most available strategy for confronting it. However, the pragmatic idea of using ethno-national affiliation as the primary building block of a political system has been received by many as suspect and by human rights institutions as discriminatory on ethnic grounds. Indeed, ordinary majority rule in deeply divided places usually results in the

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political exclusion of the ethno-national minority and ethnic domination, while power-sharing systems – which focus on the distribution of state powers among the primary segments in society – are more capable of securing actual interethnic political inclusion in such places. Yet, this strength is a double-edged sword, as the same feature – attending to the needs of the principal ethno-national groups – risks excluding smaller, nonviolent groups and discriminating against individual citizens. This concern, which is at the heart of the tension between ethnic power-sharing and human rights and underlies the peace versus justice framing of the issue, will be the focus of Chapter 6, and is central to the concept of collective equality that will be subsequently developed in Chapter 7.

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6 Human Rights versus Power-Sharing

6.1 INTRODUCTION

A central criticism of power-sharing arrangements, and especially of their ethnic-corporate versions, is that they violate the basic principle of equality and nondiscrimination. Ethnic power-sharing’s violation of human rights obligations risks illegality and has brought power-sharing arrangements into adjudication by various international human rights bodies. The case of Sejdić and Finci v. Bosnia & Herzegovina, submitted in 2006 and delivered by the ECtHR in 2009, is probably the most famous case on the subject. In this case, the ECtHR struck down central features of Bosnia and Herzegovina’s power-sharing arrangements on the grounds that they breached the right to nondiscrimination with regard to participation in elections for the legislature and presidency of Bosnia and Herzegovina. This judgment and the following Zornić (2014), Šlaku (2016), and Pilav (2016) cases in Bosnia and Herzegovina, which raised similar charges against the Bosnian constitution and were decided similarly by the court, vividly demonstrate the tension between power-sharing arrangements and human rights norms, in particular the prohibition of discrimination on ethnic grounds. These ECtHR decisions follow the central line of critique leveled against Bosnia and Herzegovina’s ethnic power-sharing arrangements by human rights institutions, including, for example, by the UN Committee on the Elimination of Racial Discrimination (CERD), the European Commission for Democracy through Law (the Venice Commission), and the UN Human Rights Committee. These legal reviews reveal an intense tension between politics and international law, and they present a risk both to peacemaking – by adding burdens to an already complex and difficult task – and to the rule of law – as the enforceability of such judgments is uncertain. Indeed, though the ECtHR judgment on Sejdić and Finci was delivered in 2009, Bosnia and 167

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Herzegovina’s constitutional provisions that were struck down have not yet been amended (Hodžić, 2020, 536). Originally, constitutional reform in accordance with the ECtHR ruling was a condition for Bosnia and Herzegovina’s entrance into the EU Stabilisation and Association Agreement. While the requirement was later dropped (Wählisch, 2019, 90), any decision on the matter remains highly contentious. Given the significant role of international law in peacemaking, both retrospectively but also prospectively (Berman, 1998; Bell & Cavanaugh, 1998, 1346), and the far-reaching political implications of these ECtHR judgments, it is important to explore whether the legal analysis undertaken by the court and by other human rights institutions is justified – that is, necessary to promote justice and human rights – or whether it overburdens peace processes and postconflict societies in an unjustified and unwarranted manner. Christopher McCrudden and Brendan O’Leary argue that the Sejdić and Finci adjudication result does not reflect a necessary and obvious outcome of a systematic judicial review, as the court departs from previous precedents while shrinking the margin of appreciation given to state authorities in such cases (McCrudden & O’Leary, 2013a; 2013b). There is therefore a call for courts and human rights bodies to apply a more restrained approach when reviewing the legality of power-sharing arrangements. As the minority opinion in the Sejdić and Finci case and McCrudden and O’Leary have argued, this judicial restraint should be especially strong when the arrangements are the result of peace negotiations that ended a war. According to this view, while these arrangements are not beyond criticism, courts should give much heavier weight to the risk of destabilizing peace and security. Another leading suggestion is to prefer the use of liberal forms of consociation (which avoid constitutionally entrenching group identities and predetermining powers and positions to them) over corporate consociational arrangements (in which both the identity of the protected groups and their share of power are ensured and predetermined by constitutional arrangements) when feasible (McCrudden & O’Leary, 2013a, 13; Wählisch, 2019; Hodžić, 2020, 539). But these valid and practical suggestions do not sufficiently remedy the underlying problem – the lack of normative legitimacy attributed to powersharing arrangements (HRC, GC 25, 1996; Sejdić and Finci v. Bosnia & Herzegovina, 2009, 27996/06; 34836/06; Hodžić, 2020, 539).1 Human rights bodies say that power-sharing arrangements are not a proper system for a democratic state, especially when they include “ethnic” criteria, unlike a majoritarian democracy, which represents a legitimate and proper system 1

For the concept of normative legitimacy used here, see Peter, 2017.

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of government. Thus, ethnic power-sharing arrangements are legally tolerated only as a temporary measure, until stable peace and security have been reached (Wheatley, 2012, 30; McCrudden & O’Leary, 2013a, 130–132; Bell, 2013, 226). This perception of ethnic power-sharing as lacking legitimacy is not restricted to human rights bodies. In a statement release on September 12, 2017, the US mission to the Organization for Security and Cooperation in Europe (OSCE) urged Bosnia and Herzegovina in its preparations for elections “to rid its electoral framework of ethnic criteria that are clearly discriminatory, outdated, and inefficient. Ignoring the Sejdić-Finci ruling is not a solution” (US Mission to the OSCE, Statement, September 12, 2017). In another statement, released on September 18, 2017, the mission expressed its view that the political powers accorded to the three groups were mere “collective privileges,” which “supersede the individual human rights of citizens, causing qualified persons to be excluded from public office because of ethnicity” (US Mission to the OSCE, Statement, September 18, 2017). To better understand the legal analysis and normative assumptions underlying this prominent perception of power-sharing arrangements, and to explore its shortcomings that the concept of collective equality aims to address, this chapter presents the ECtHR rulings regarding Bosnia and Herzegovina’s constitutional arrangements and the criticisms raised against them. This review reveals that the common legal analysis includes, roughly speaking, only two components: individual human rights obligations on the one hand, and the public interest in peace and security on the other. This legal framing portrays the conflict as another version of the peace versus justice debate, in which human rights obligations represent the demands of justice, while ­power-sharing arrangements represent the unavoidable, though regrettable (in terms of justice), price of peace. This legal appraisal, I argue, avoids a central and crucial normative feature of the situation – the “elephant in the room” of national self-determination in multinational places. 6.2 THE SEJDIĆ AND FINCI CASE BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

6.2.1  The Constitutional Provisions Challenged before the European Court of Human Rights The constitutional arrangements that were integral to the Dayton peace deal, ending the Bosnian war, involved various power-sharing provisions to share and divide the state’s powers among the three ethno-national groups. The constitution accorded Bosnia and Herzegovina’s three groups the status of

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“constituent peoples” (along with others) (Chapter 5, Section 5.4.2). Based on the constitutional provisions, Bosnia and Herzegovina’s constitutional court declared the three ethno-national groups – Bosniaks, Croats, and Serbs – as constituent of Bosnia and Herzegovina, and therefore equal across the entire territory of Bosnia and Herzegovina (Constituent Peoples case, U/58-III, partial decision from July 1, 2000, part 3; Begić & Delić, 2013, 449–453). The complex power-sharing arrangements in Bosnia and Herzegovina include federalism – dividing the state into two subentities; consociationalism – used as the organizing model for the Republic of Bosnia and Herzegovina (the central state) and some of the cantons and local municipalities; and confederalism – to order relations with neighboring kin-states, Serbia and Croatia. The two constitutional provisions from Bosnia and Herzegovina’s diverse power-sharing arrangements that the Sejdić and Finci case challenged related to the Bosnia and Herzegovina presidency and the House of Peoples, Bosnia and Herzegovina’s upper legislative chamber. Unlike other presidential systems, the Bosnia and Herzegovina presidency is a presidential council – made up of one representative from each of the three ethno-national groups. The Bosniak and Croat representatives need to be directly elected from the federation’s territory, while the Serb representative needs to be directly elected from the Republika Srpska territory. The legislature (Parliamentary Assembly) consists of two chambers, the House of Peoples and the House of Representatives, and all legislation requires the approval of both chambers. While the 42 House of Representatives members are elected based on universal and equal suffrage in the two entities, the election of the 15 delegates to the House of Peoples relies on ethnic distinctions: “The House of Peoples shall comprise 15 Delegates, two-thirds from the federation (including five Croats and five Bosniacs) and one-third from the Republika Srpska (five Serbs).” These constitutional arrangements for Bosnia and Herzegovina’s presidency and the House of Peoples require citizens to identify themselves with one of the three ethno-national groups. If they refrain from doing so, they are ineligible to run for these two central institutions (Wheatley, 2012, 9). Bosnia and Herzegovina’s complex power-sharing model mandates including representatives of the three ethno-national groups, and thus guarantees much wider political inclusion than the one guaranteed by majoritarian democracy. At the same time, these arrangements establish that two of the highest political offices in the state are not open to citizens who have not identified as members of one of the “constituent peoples.” Failure to identify oneself as a member of one of the groups may be the result of the person belonging to another ethnic or religious group, of not seeing oneself as belonging to any, or of principled objection to ethnic classification.

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6.2.2  The Arguments before the Court Sejdić and Finci are respectively Roma and Jewish Bosnia and Herzegovinian citizens. In 2006, they submitted two independent petitions to the ECtHR asking the court to strike down Bosnia and Herzegovina’s constitutional arrangements relating to the House of Peoples and the presidency, because of their ineligibility to stand for election to these positions on the grounds of their respective Roma and Jewish origins. They argued that these constitutional provisions violate their basic rights, relying on Articles 3 (prohibition of inhumane and degrading treatment), 13 (right to an effective remedy), and 14 (prohibition of discrimination) of the ECHR, Article 3 of Protocol No. 1 (right to free elections), and Article 1 of Protocol No. 12 (general prohibition of discrimination). They further argued that these rights were denied them on grounds of their race/ethnicity and that such difference in treatment based expressly on race or ethnicity could not be justified and amounted to direct discrimination. They maintained that even if justification was possible, the respondent government bears a very heavy burden when seeking to establish an objective and reasonable justification, as the complaint involved direct racial and ethnic discrimination, applied to political participation and representation at the highest state level, and had already been maintained for a long period of time (11 years at the time of submission). In response, the Bosnia and Herzegovina government argued for considerable latitude in establishing the constitutional order that governs parliamentary elections, and that Bosnia and Herzegovina’s structure should be assessed against its specific background – being established by a peace agreement following one of the most destructive conflicts in recent European history, with the ultimate goal of achieving peace between the country’s three main ethnic groups. The government further claimed that “the time was still not ripe for a political system which would be a simple reflection of majority rule, given, in particular, the prominence of mono-ethnic political parties and the continued international administration of Bosnia and Herzegovina” (Sejdić and Finci, para. 34). The government therefore concluded that the difference in treatment was justified in these particular circumstances. 6.2.3 The Sejdić and Finci Ruling In a relatively brief decision, the majority of the Grand Chamber found the two constitutional provisions to be in violation of the ECHR. By 14 votes to 3, the court found that there had been a violation as regards the applicants’ ineligibility to stand for election to the House of Peoples, and by 16 votes to 1, that there had been a violation as regards the applicants’ ineligibility to stand for election

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to the presidency. The court’s core reasoning rests on its interpretation of the prohibition of nondiscrimination found in Article 14 of the ECHR and Article 1 of Protocol no. 12, which provide the obligation to secure the rights and freedoms set forth in the convention “without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” As Article 14 is designed to ensure nondiscrimination of rights and freedoms safeguarded by the convention’s other provisions, the court first addressed the question of whether the right to participate in the elections to legislative bodies (guaranteed in Article 3 of Protocol 1) is applicable here. The court found that the House of Peoples is a legislative body – as it is indirectly elected and enjoys wide powers to control the passage of legislation, the state budget, and ratification of treaties – and thus fall under the provision (Sejdić and Finci, para. 41). Following ECtHR case law, discrimination under Article 14 of the ECHR means “treating differently, without an objective and reasonable justification, persons in similar situations.” The court clarified that “no objective and reasonable justification” means that the distinction at issue does not pursue a “legitimate aim” or that there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realized” (Sejdić and Finci, para. 42). In assessing the kind of discrimination caused by the relevant constitutional provisions, the court found that distinction on the basis of ethnicity is a form of racial discrimination: “Ethnicity and race are related concepts. Whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies on the basis of morphological features such as skin color or facial characteristics, ethnicity has its origin in the idea of societal groups marked in particular by common nationality, religious faith, shared language, or cultural and traditional origins and backgrounds” (Sejdić and Finci, para. 43). Based on this finding, the court concluded that it is “a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction.” The court further underpinned the demanded strictness, reiterating that “no difference in treatment which is based exclusively or to a decisive extent on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society built on the principles of pluralism and respect for different cultures” (Sejdić and Finci, para. 44). Although the court agreed that the lack of “others” from the House of Peoples might be said to serve a “legitimate aim,” it did not make a decision as to whether the arrangements fulfill a legitimate aim, leaving the issue open. The court justified avoiding this ruling by finding that the constitutional provisions do not satisfy the requirement of proportionality as “the Opinions of the

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Venice Commission … clearly demonstrate that there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities” (Sejdić and Finci, para. 48). As the court relied, for part of its reasoning, on the Opinions of the Venice Commission, the Council of Europe’s advisory body on constitutional matters (the European Commission for Democracy through Law), it is necessary to look more closely at the Commission’s opinions. Having in mind the need to strike a balance between protecting the constituent peoples’ interests and effective government, the Venice Commission recommended abolishing the House of Peoples: The role of the House of Peoples is only negative as a veto chamber, where members see as their task to exclusively defend the interests of their people without having a stake in the success of the legislative process. It would therefore seem preferable to move the exercise of the vital interest veto to the House of Representatives and abolish the House of Peoples. This would streamline procedures and facilitate the adoption of legislation without endangering the legitimate interests of any people. It would also solve the problem of the discriminatory composition of the House of Peoples. (Opinion of the Venice Commission, March 11, 2005, para. 36)

The Commission also suggested diluting the collective presidency’s powers, with the aim of abolishing the joint presidency and moving to a single president, as it does not appear functional or efficient (Opinion of the Venice Commission, March 11, 2005, paras. 39, 40, 77). Relying on the Venice Commission recommendations, the court assumed that alternative constitutional arrangements for Bosnia and Herzegovina were available and concluded that the applicants’ continued ineligibility to stand for election to the House of Peoples of Bosnia and Herzegovina and the presidency lacked an objective and reasonable justification. While the court’s legal reasoning is important, the underlining perceptions about democratic legitimacy and the three ethno-national groups’ status in Bosnia and Herzegovina’s democratic system seem to have no less significance. The following quote from the court judgment indicates its perceptions of the power-sharing arrangements’ democratic legitimacy: In addition, while the Court agrees with the Government that there is no requirement under the Convention to abandon totally the power-sharing mechanisms peculiar to Bosnia and Herzegovina and that the time may still not be ripe for a political system which would be a simple reflection of majority rule, the Opinions of the Venice Commission … clearly demonstrate that there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities. (Sejdić and Finci, para. 48, emphasis added)

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The clear message from the court is therefore that while power-sharing arrangements might be tolerated as a temporary measure, they are not regarded as a proper political system, as a system based on “a simple reflection of majority rule.” Despite the three ethnic groups – Bosniaks, Croats, and Serbs – being defined in Bosnia and Herzegovina’s constitution as the state’s “constituent peoples,” the court did not seem to approve of their status as legitimate actors in Bosnia and Herzegovina’s political sphere. The court did include some recognition of the three groups, referring to the Venice Commission’s opinion on the matter, which exemplifies the problem. The part of the Venice Commission’s opinion that is quoted by the court, which I find indicative of the court’s view of the possible legitimate roles of the ethno-national groups, is as follows: Under present conditions within Bosnia and Herzegovina, it seems unrealistic to ask for a complete abolition of the vital interest veto. The Commission nevertheless considers that it would be important and urgent to provide a clear definition of the vital interest in the text of the constitution. This definition will have to be agreed by the representatives of the three constituent peoples but should not correspond to the present definition in the Entity Constitutions which allows practically anything being defined as vital interest. It should not be excessively broad but focus on rights of particular importance to the respective peoples, mainly in areas such as language, education and culture. (Venice Commission, March 11, 2005, para. 33, emphasis added; Sejdić and Finci, 17–18)

This quote reflects an understanding, shared by the Venice Commission and endorsed by the court, of Bosnia and Herzegovina’s “constituent peoples” as cultural groups, with their main concerns – and their only legitimate concerns – relating to cultural preservation. However, in the subsequent Šlaku case (Šlaku v. Bosnia & Herzegovina, 2016, 56666/12), the ECtHR stated even more clearly that the ethno-national groups lack a legitimate political role and that the power-sharing arrangements lack legitimacy: In Sejdic ́ and Finci the Court observed that when the impugned constitutional provisions were put in place a very fragile ceasefire was in effect on the ground and that the provisions were designed to end a brutal conflict marked by genocide and “ethnic cleansing” … The nature of the conflict was such that the approval of the “constituent peoples” was necessary to ensure peace … However, now, more than 18 years after the end of the tragic conflict, there could no longer be any reason for the maintenance of the contested constitutional provisions. The Court expects that democratic arrangements will be made without further delay. In view of the need to ensure effective political democracy, the Court considers that the time has come for a political system which will provide every citizen of Bosnia and Herzegovina with the right to

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stand for elections to the presidency and the House of Peoples of Bosnia and Herzegovina without discrimination based on ethnic affiliation and without granting special rights for constituent people to the exclusion of minorities or citizens of Bosnia and Herzegovina. (Šlaku, para. 40, emphasis added)

In this later decision, the court withheld even the dubious limited recognition of the ethno-national groups (outside a context of war and violence) and of the power-sharing arrangements, found in the earlier Sejdić and Finci case and in the Venice Commission’s recommendations. 6.2.4  The Minority Opinion in the Sejdić and Finci Case The Grand Chamber decision included two minority opinions. The first, partly concurring and partly dissenting opinion was by Judge Ljiljana Mijovic, joined by Judge Khanlar Hajiyevs. The second was by Judge Giovanni Bonello, who strongly and passionately dissented. While differing in tone and result – as Judge Mijovic concurred with the majority opinion regarding the presidency2 – both minority opinions criticized the court’s insufficient regard for “the historical background and the circumstances in which the Bosnia and Herzegovina Constitution was imposed” (Sejdić and Finci, Judge Mijovic, para. I). Judge Mijovic emphasized Bosnia and Herzegovina’s unique constitutional arrangements, which can be understood only against the background of the war that preceded them: Once the masters of war had decided to become masters of peace, after long and difficult negotiations between political representatives of the Bosniacs, Croats and Serbs under the supervision of the international community, they created a state that was of an unprecedented shape, one that was previously totally unknown in international and constitutional law … In the present case, the distribution of posts in the State organs between the constituent peoples was a central element of the Dayton Agreement, making peace in Bosnia and Herzegovina possible. In such a context, denying legitimacy to norms that may be problematic from the point of view of non-discrimination but were necessary to achieve peace and stability and to avoid further loss of human lives would be very difficult … The tripartite structure of the Bosnia and Herzegovina State Presidency is, like many other state institutions in that country, a result of the political compromise achieved by the peace accord. Its structure was intended to establish 2

Judge Mijovic explained the distinction between the two institutions as being based on the two institutions’ different functions: “The State Presidency is an institution that represents the State as a whole, while the House of Peoples has an important and sensitive role in the protection of ‘vital national interests’” (Sejdić and Finci, opinion of Judge Mijovic, joined by Judge Hajiyev, para. IV).

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a mechanism of balance and to prevent the supremacy of any one people in the decision-making process. (Sejdić and Finci, Judge Mijovic, paras. II, IV, emphasis added)

Delivering the second minority opinion, Judge Bonello dissented from and harshly criticized the court’s judgment on both issues. He faulted the court for neglecting to give due regard to the historical circumstances and for assuming to know better than the national institutions if and when the previous danger had already passed: I believe the present judgment … has divorced Bosnia and Herzegovina from the realities of its own recent past. … With all due respect to the Court, the judgment seems to me an exercise in star-struck ­mirage-building which neglects to factor in the rivers of blood that fertilized the Dayton Constitution. It prefers to embrace its own sanitized state of denial, rather than open its door to the messy world outside. Perhaps that explains why, in the recital of the facts, the judgment declined to refer even summarily to the tragedies which preceded Dayton and which ended exclusively on account of Dayton. … I also question the Court’s finding that the situation in Bosnia and Herzegovina has now changed and that the previous delicate tripartite equilibrium need no longer prevail. That may well be so, and I just hope it is. In my view, however, a judicial institution so remote from the focus of dissention can hardly be the best judge of this. (Sejdic ́ and Finci, Judge Bonello)

Considering that the court had failed to take these factors into consideration, particularly as it had previously “quite effortlessly” approved a restriction of electoral rights “based on the widest imaginable spectrum of justifications,” Judge Bonello ended his opinion on a harsh note: “I cannot endorse a Court that sows ideals and harvests massacre.” While both dissenting opinions criticized the court for its improper assessment of past and present surrounding circumstances, and for narrowing too far the scope given to national authorities in such sensitive issues, they seem to share several underlying assumptions with the majority. These underlying assumptions include the normative supremacy of civic nationalism while ethno-nationalism is viewed as repugnant, and majoritarian democracy’s taken-for-granted legitimacy, as opposed to ethnic power-sharing democracy’s lack of legitimacy, which can be tolerated only temporarily: Hypothetically speaking, were it not occurring in a State built on atrocities, massacres and bloodshed, I would be of the opinion that, even taken alone, the obligation on an individual to declare his or her affiliation with an ethnic group in order to stand as a candidate for a public position is unacceptable and sufficient to find a violation of the prohibition of discrimination based on ethnic affiliation. (Sejdic ́ and Finci, Judge Mijovic, para. IV)

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6.2.5  External Critiques of the Judgment “From the Strasbourg perspective,” writes Marko Milanovic, “the result in Sejdić v. Bosnia and Herzegovina could hardly have been different” (2010, 638). Indeed, the judgment has been praised, and has raised hopes for breaking down ethnic and religious divisions “by encouraging political participation and representation, and promoting social cohesion” (Claridge, 2010). Yet, prominent scholars criticize the Grand Chamber’s decision for being detached from reality and for lacking clarity. Although concurring that liberalizing Bosnia and Herzegovina’s arrangements would be a positive development, they criticize the court’s “interventionist” approach, manifested in the narrowing of the “margin of appreciation,” by adopting a high standard of review of the nondiscrimination norm, and by not according considerable weight to the state’s position regarding the legitimacy of the aims sought by the challenged arrangements. In all these aspects, the court in the Sejdić and Finci case is said to stand in stark opposition to its previous case law (McCrudden & O’Leary, 2013b, 491). Christine Bell criticizes the court’s heavy reliance on the “formal” use of the ethnic criterion and the assumption that getting rid of the formal ethnic criterion can be sufficient: first, because an alternative criterion is not available in all cases; second, because nonformal identification may also be disqualified, with the development of more robust international human rights jurisprudence around indirect discrimination; and third, because focusing on the formal appearance rather than on the material outcome seems rather technical (Bell, 2013, 212–214). Furthermore, McCrudden and O’Leary urge caution over the uncertainty that the court’s approach has generated for past, present, and future sites of conflict. While a fundamental expectation of the parties to power-sharing deals is that they will stand in place unless and until the parties agree to change them, the court’s approach hints that consociational arrangements are appropriate only in a conflict’s immediate aftermath, and then only for a temporary period (McCrudden & O’Leary, 2013b, 497–498). 6.3  HUMAN RIGHTS AND POWER-SHARING IN OTHER PLACES

While mapping human rights bodies’ responses to power-sharing reveals inconsistent views, it nevertheless does share the understandings stated earlier – that ethnic or religious power-sharing arrangements lack democratic legitimacy and infringe on basic human rights, and therefore are approvable only temporarily, until the time is ripe for a proper democratic system based on

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majoritarian democracy that is neutral toward its citizens’ ethnic, linguistic, or religious affiliation (Bell, 2013), representing imperfect peace (Wählisch, 2019), or even illegal peace (Levitt, 2012). Critiques, and similar hopes for the gradual abolition of the power-sharing arrangements, have been leveled, for example, toward the power-sharing arrangements adopted in Lebanon (Wählisch, 2019, 94–131), Liberia, Sierra Leone, and Guinea-Bissau (Levitt, 2012). Critiques and fears that power-sharing arrangements will not pass the human rights and equality test have also been raised regarding the power-sharing arrangements in Northern Ireland (McCrudden & O’Leary, 2013b, 494, fn 46; McCrudden et al., 2016). Although the group-based arrangements in Northern Ireland aimed to shrink existing inequalities between Protestant-British and Catholic-Irish groups in the police force, or to maintain equal opportunity for teachers, fears were raised that they would not pass the test of EU law. To protect local arrangements from challenge on equality grounds, in 2000 the EU specifically amended one of its principal antidiscrimination directives (McCrudden & O’Leary, 2013b, 495). Yet the ECtHR Bosnia and Herzegovina cases open the door to wider challenges to the compatibility of the Northern Ireland power-sharing arrangements with human rights law. As the Northern Ireland model for political participation is not based on candidates’ ethnonational designation or ethno-national quotas, but mainly on the proportional allocation of parliamentary representation and executive positions, it is less “suspicious” than Bosnia and Herzegovina’s model. However, two main features of the Northern Ireland constitutional system do rely on ethno-national group affiliation, explicitly or implicitly: the community veto rights and the joint premiers (the first and deputy first ministers). Both arrangements rely on the elected representatives’ ethno-national designation. According to the GFA, key political decisions must be taken on a “cross-community” basis, which means that to pass legislation in the assembly, either concurrent majorities of registered Unionists and Nationalists (“parallel consent”) are required, or a qualified majority of at least 60 percent, including at least 40 percent of registered Nationalists and Unionists, respectively (“weighted majority”) (O’Leary, 2018, 225). The designation as (British) “Unionists,” (Irish) “Nationalists,” or “Others” is also required in electing the joint premiers (Article 9, Annex A, St Andrews Agreement). The ECtHR judgments thus raise a serious concern that the rule regarding the premiers’ election could be classified as “ethnic” and become suspect because it requires elected officials to designate themselves while only considering some votes but not others (McCrudden & O’Leary, 2013b, 494, fn 46; McCrudden et al., 2016, 35). The tension between power-sharing arrangements and international and European human rights norms also plays a significant role in the Cyprus case.

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Using the Annan Plan as our reference for a possible peace agreement in Cyprus, suggested constitutional arrangements include provisions to preserve the ethno-national demographic majority in each of the two constituent states. The Annan Plan was designed to achieve this aim by vesting the constituent states with powers to regulate citizenship and residency in their respective constituent states, which include powers to impose restrictions on freedom of residency within the island between the two federal units (Article 3, Main Articles, Annan Plan). Provisions regarding the restitution of property to past owners have also been constructed with this aim in mind. During the last round of peace negotiations that took place between 2015 and 2017, the estimation that formal restrictions based on ethnicity would be regarded as violating EU human rights legislation and freedom of movement obligations led the negotiators to suggest other mechanisms to secure sufficient control over the demographic composition of each of the constituent states, regarded by the Turkish minority as crucial. The suggested arrangements were designed to avoid formal ethnic restrictions and to achieve the same aim through other means,3 reaffirming Bell’s concern that the human rights tendency to focus on the formal use of ethnicity is indeed rather technical (Bell, 2013, 214). While the traditional understanding of international law does not recognize the Turkish Cypriot community’s collective right to self-determination, but assumes their right should be fulfilled internally by safeguarding its equal political status within sovereign Cyprus, the power balance held since 1974, with Turkey’s strength on its side, does do so. Moreover, since a peaceful resolution to the Cyprus conflict is likely to deviate from existing European norms of nondiscrimination – as these have been interpreted by the ECtHR in the Bosnia and Herzegovina cases – it will probably lack legitimacy, making its endorsement by political elites and the public even more difficult. 6.4  THE ROOT PROBLEM: FAILURE TO RECOGNIZE ETHNO-NATIONAL COLLECTIVES

6.4.1  A Preliminary Note about the European Court of Human Rights’ Role in Adjudicating Constitutional Matters The Sejdić and Finci case was not the first time the ECtHR had to deal with legal disputes that challenge its member states’ constitutional arrangements. Several cases dealing with the consociational arrangements in Belgium date back to the early days of the court’s existence (“Relating to certain aspects of 3

Based on interviews held in 2017, between the author and persons involved in the negotiations.

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the laws on the use of languages in education in Belgium” v. Belgium, 1968, 1474/62, the “Belgian Linguistics” case; and Mathieu-Mohin v. Belgium, 1987, 9267/81). These earlier Belgian cases, but more blatantly the Sejdić and Finci case, are not “typical cases” of judicial review, in which the court reviews laws and policies promulgated by the institutions of a state, but cases in which the court is asked to review how compatible the state constitution’s core elements are. In doing so, the court questions the state’s fundamental institutional structure and how political equality in the polity is to be achieved (Wheatley, 2012, 7–8; Bell, 2013, 215, 226; Issacharoff, 2008). Such challenges are in fact challenges to the state’s “constitutional identity” or “national identity.” In the EU context, the Treaty of Lisbon reassures its member states that “their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” will be respected (Treaty of Lisbon, 2007, Article 3a.2.; Claes & Reestman, 2015). This kind of judicial review involves courts in “first-order” challenges to the nature and composition of the polity itself, which are uniquely serious because they “can be highly destabilizing,” involving the breakdown of civil peace and the recurrence of widespread political violence (Issacharoff, 2008). Moreover, as the Sejdić and Finci case demonstrates, they raise questions regarding the court’s competency to intervene in peace agreements that have already been signed and that are part of an international treaty. 6.4.2  Ethnic Power-Sharing as Flawed Arrangements Given the prominence of the ECtHR and other European and international bodies – including the Venice Commission, the UN Committee on the Elimination of Racial Discrimination (CERD/C/BIH/CO/6, 2006; CERD/C/ BIH/CO/12–13, 2018), and the UN Human Rights Committee (CCPR/C/BIH/ CO/3, 2017) – which have expressed similar positions, it seems appropriate to regard the ECtHR ruling in the landmark Sejdić and Finci case, as well as its ruling in the subsequent Zornić (Zornić v. Bosnia & Herzegovina, 2014, 3681/06), Šlaku, and Pilav (Pilav v. Bosnia & Herzegovina, 2016, 41939/07) cases, as representing the leading Western–international legal approach on the matter. While leaving many open questions, the ruling nevertheless has set a few guidelines. First, fundamental constitutional arrangements, even those that were accepted as an integral part of a peace agreement, are not immune from judicial review. Second, power-sharing arrangements that are based on an individual’s ethnic affiliation and effect the fulfillment of recognized rights are considered to be a form of racial discrimination (even if the distinctions are voluntary and done by self-classification). Third, racial discrimination is

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a particularly egregious kind of discrimination and, in view of its perilous consequences, it requires special vigilance and a vigorous reaction from the authorities. This vigilant and vigorous reaction demands a strict assessment of whether the distinction at issue pursues a legitimate aim and whether it bears a reasonable relationship of proportionality between the means employed and the aim sought to be realized. However, the court’s answers were much less clear in assessing these last two questions, and they need to be extricated from between the lines. From how the court balanced the competing interests in the Sejdić and Finci case, ethnic power-sharing is portrayed as a fundamentally flawed constitutional arrangement. Defined as racially discriminatory distinctions, it can be justified only in extreme circumstances, and only for the time for which such extreme circumstances continue to prevail. From two possible legal approaches – one that thinks of power-sharing as reflecting legitimate values and concerns, and another that thinks of it as a necessity of pragmatic politics and nothing more – the current legal approach clearly chose the second (McCrudden, 2001, 377–378; Wählisch, 2019; Hodžić, 2020). Despite the sharp controversy between the majority and minority opinions in the Sejdić and Finci case, both legal approaches frame the dilemma in “peace vs. justice” terms, where “power-sharing” stands for peace and “human rights” stands for justice. Based on this interpretive context, the judges are basically divided around the weight that should be given to the human rights obligations and necessities of peace, but not on the overall framework and the balancing task standing before them. I agree with the critique that the court’s analysis and reasoning in the Sejdić and Finci case are a problematic intervention in “first-order” issues. At the same time, I hold that the alternative offered by the minority opinion is not optimal either, as it does not properly grasp the role of ethno-national groups and the normative value found in ethnic political power-sharing in deeply divided places. My main contention is that a key deficiency in the court’s legal approach is intimately linked with its underlying worldview concerning three central concepts: ethno-national collectives; the proper shape of a liberal democratic state; and self-determination as a legal, collective, human right. Indeed, the ECtHR’s legal assessment should not be surprising. As argued in Chapters 3 and 4, both the international legal framework, regarding the right to self-determination and minority rights, as well as common liberal understandings of nationalism withhold normative recognition from ethnonational groups as legitimate political actors. While denying national groups’ right to self-determination is primarily connected to states’ interests in stability and preserving their territorial integrity, its rejection seems to be rooted also

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in the “bad name” attached to nationalism (Fukuyama, 2018, 9). As the court dealt with the situation in Bosnia and Herzegovina, it did not need to go back very far in history to be reminded of such acts. Despite the court expressing unequivocal rejection in its later judgments (especially in the Šlaku case), it is important to note why the more “lenient” approach taken in the Sejdić and Finci case and by the Venice Commission is also flawed. I recall that in the Sejdić and Finci case, the court was willing to recognize Bosnia and Herzegovina’s three “constituent peoples” as cultural groups, which have legitimate concerns about cultural preservation. This lenient approach toward Bosnia and Herzegovina’s ethno-national groups seems to be rooted in a cultural understanding of nationalism. Such recognition of ethno-national groups’ cultural rights is valuable and corresponds with prominent liberal accounts, which aim to accommodate nationalism within the liberal tradition. However, while these attempts provide important conceptual developments in thinking about nationalism and national groups in liberal terms, they still miss the political essence of nationalism (as shown in Chapter 4). While protection for the collective culture is significant, it is far from being sufficient, and it certainly does not address other fundamental concerns of the groups and their members, especially in the Bosnian context. Thus, the groups’ more basic concerns – to have control over their collective lives and, perhaps more importantly, to be assured that no other group will dominate them – was left unrecognized by the court, even in its more lenient ruling in the Sejdić and Finci case. 6.5 CONCLUSION

Barring minorities and some individuals from standing for elections to prominent political positions is an infringement of fundamental liberal values and of the state’s obligation of nondiscrimination. In Bosnia and Herzegovina’s cases, the ECtHR ruled that two of the basic arrangements of Bosnia and Herzegovina’s power-sharing system – the elections to the House of Peoples and to the presidency – which require candidates to identify themselves with one of Bosnia and Herzegovina’s three constituent peoples are discriminatory and cannot stay in place. The court’s reasoning was primarily based on classifying Bosnia and Herzegovina’s constitutional arrangements as ethnic, and as equivalent to racial discrimination, which, according to the court, can hardly ever be justified. It also led to marking Bosnia and Herzegovina’s constitutional arrangements – and potentially other power-sharing arrangements based on ethnic affiliation – as discriminatory, even racist, and hence illegitimate. The court’s ruling in Bosnia and Herzegovina’s cases demonstrates sharply

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the clash between the collective–particularistic aspects of p ­ower-sharing arrangements on the one hand, and the individualistic–universal aspects of human rights protections on the other hand. The court’s ruling demonstrates the discrepancy between the social and political reality existing in Bosnia and Herzegovina and other deeply divided places and the legal framework, which accords supremacy to individual over collective rights. We saw that in assessing the legality of the constitutional arrangements, the ECtHR – in both majority and minority opinions – did not recognize national groups’ collective rights, in stark opposition to common local perceptions and the perceptions that informed the peace agreement and the constitutional design. The solutions that have been developed so far for the disparity between peacemaking practice and the law – developing liberal versions of power-sharing and recommending courts adopt a much more prudent approach to judicial review – are in place, but do not tackle the legitimacy problem of power-sharing arrangements. Yet this lack of legitimacy attributed to ethnic power-sharing should not be taken for granted and does need to be revisited. Another approach that the court could have taken is viewing the groups in “national” terms, in accordance with how they were understood by the Dayton Peace Agreement. Under this approach, each of Bosnia and Herzegovina’s “constituent peoples” is a nation, a people, with an equal right to self-determination (McCrudden & O’Leary, 2013b, 495–496). The ramifications of the court adopting such a view of the groups are significant, since instead of “a clash between consociational principles and human rights principles, arguably two different rights – selfdetermination and equality – have to be balanced” (McCrudden & O’Leary, 2013a, 127). From the many valid points raised by McCrudden and O’Leary, I find this point to encompass both the root of the legal problem and the opening for its redress. However, the fundamental obstacles to this suggestion being adopted are the current legal interpretation of the right to self-determination, which equates peoples who hold that right with the entire population of a state, and the prevailing liberal tendencies, which condemn ethno-nationalism and regard it as irretrievably flawed. My intention in the rest of this book is to challenge this double-edged obstacle, by developing and justifying a new concept of collective equality that should be included in our moral and legal assessments of peace-related arrangements in deeply divided places. I proceed by promoting three propositions. The first proposition, pursued in Chapter 7, holds that promoting equality between ethno-national groups in deeply divided places – that is, promoting collective equality – should be accepted as a core rationale underlying more just peace processes in situations of group conflict. I will suggest that the power-sharing approach to peacemaking is a practical way to merge

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both the national and liberal paradigms and to overcome the undesirable traits found in both. In understanding and developing collective equality as a liberal concept, the conditions for its acceptance and its balancing with individual human rights will be explored. My second proposition, pursued in Chapter 8, holds that promoting collective equality is justified and should be regarded as a welcome endeavor also from a liberal and human rights perspective, because it is more likely to ensure wider political inclusion in the state than the one guaranteed by majoritarian democracy, and because it represents common perceptions of justice in deeply divided places. My third proposition, pursued in Chapter 9, holds that the idea of collective equality – by attempting to merge ethno-nationalism and liberalism – can also enable a more adequate reading of the right to self-determination and subsequently make international law more apt to regulate ethno-national peacemaking, which encompasses most conflicts around the world today. The reading offered in Chapter 9 will contribute to the move that is already underway from the statecentered interpretation of the right to self-determination to a more nuanced and complex understanding of it as an international legal right of peoples. At the end of Chapter 9, I return to reassess the Sejdić and Finci case based on the suggested reading of self-determination law. My overall aim is to offer a way to adjust the existing international legal framework and make it more hospitable to circumstances commonly prevailing in ethnically divided places by identifying legitimate collective interests and protecting them, in addition to, not instead of, individual rights. It is my hope that such an adaptation of the legal framework may tune existing international law to regulate situations of peacemaking more adequately. This adaptation does not aim to grant priority to collective interests, but to provide due respect for these interests as well. In turn, due recognition of the collective interests and a better balance between collective and individual rights – being two different tools for protecting important human interests  – can provide better guidelines to distinguish between legitimate claims for justice and illegitimate claims to power.

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Part III

collective equality

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7 Collective Equality Theoretical Foundations for the Law of Peace

7.1 INTRODUCTION

This third part of the book offers a new paradigm, a new context, for how different parties can evaluate and frame their moral and legal demands in ethno-national conflicts and peacemaking in a way that is more conducive to promoting peace and justice. The theoretical account in this part also supports a new reading of the right to self-determination under international law, which revalidates that right as a collective human right and narrows the tensions between peacemaking and human rights. The theoretical account offered here is called collective equality to emphasize its core: recognition of the centrality of collectives (here specifically ethno-national groups) and their equal relations as the primary pillar of peace.1 Underlying the collective equality paradigm are two assumptions. The first is the fact of fundamental difference between individuals along their ethno-national identities, which is unlikely to disappear. Individuals’ different conceptions of themselves as being members of distinct national communities should be assumed as a stable social fact that must be accommodated – both by the transitional process from conflict to peace and also by the political paradigm of a peaceful and just society. The second assumption is reasonable national pluralism. Deeply divided places riven by ethno-national conflicts are characterized not only by national divides, but most often by practices of discrimination, political exclusion, and domination of one ethno-national group over the other(s). While the national divide itself is unlikely to disappear in such places, how the ethno-national 1

The term “collective equality” has already been used in the context of Bosnia and Herzegovina, by both the Bosnia and Herzegovina constitutional court and by the ethno-national parties. However, as discussed in Chapter 8, Section 8.2.2.2, the interpretation of the term in the Bosnia and Herzegovina context and the one offered here are different.

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“border” is managed can dramatically change. As the transformations from ethno-national conflict to peaceful accommodation in different places around the world demonstrate, exclusionary nationalism, invested in securing the domination of the nation over other nations, can be transformed and become reasonable nationalism, offering fair terms of cooperation to other peoples. Thus, reasonable national pluralism is assumed to be a realistic justice ideal. Building on existing liberal justice and liberal nationalism accounts, I aim to advance the recognition and development of liberal nationalism as a permissible alternative to the traditional liberal approaches based on individual rights, state neutrality, and majoritarian democracy. Alongside liberal multiculturalism, which acknowledges the state’s lack of neutrality and adds the requirement of minority rights, collective equality introduces the paradigm of equality between the national groups – understood here as peoples – that occupy a specific territory. In the realities of conflict-riven places, this new paradigm must respond to concerns that lay at the root of contemporary conflicts – the objection to or fear of foreign domination – common to both national minorities and national majorities caught in an “intimate conflict.” As we saw in Part I, the problem of intergroup domination in deeply divided places is not properly solved by the policy of territorial partition or through constitutional liberal democracy. Because population transfers are morally and legally rejected, homogenous nation-states can no longer be assumed as a viable outcome of peace, and ethno-national heterogeneity must be accepted as a stable social fact that must be politically and legally accommodated in such places. But despite impressive attempts to advance ever more sophisticated human and minority rights protections to accommodate such ethnonational heterogeneity, neither neutral nor multicultural liberalism succeeds in providing sufficient protection to national minorities, nor does either give adequate assurances to the national majorities. The failure of the existing liberal paradigms and human rights law has proved to be most significant in deeply divided places – where relations between minorities and majorities have been “securitized”; that is, where those relations are perceived as an existential threat to the state and its dominant national group. In such places – which are characterized by a lack of all-encompassing national identity – the majoritarian liberal democracy structures along with human rights protections validate and recreate the groups as majority/minority, dominant/dominated, and thus as substantially unequal. The resulting sociopolitical structure does not merely reflect a factual reality in which groups differ in size, but legitimizes and recreates their inequality in power, status, and respect. Therefore, under clear and conflicting national divides, a paradigm of justice that relates only to individuals and does not address the intergroup power struggle for

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and against domination fails to properly support the liberal values of equality and political inclusion. Following his recognition that multicultural theory is unable to provide a suitable account for deeply divided places, Kymlicka suggests that the alternative is to gradually proceed through dialogue and negotiations from a generic minority rights framework, which includes Article 27 of the ICCPR and some minimal level of “effective participation.” Peacemaking practice shows that when the parties to group conflict come to the negotiation table and succeed in reaching an agreement, they most often settle for something other than just the scripts given by liberal democracy and the human rights paradigm. This “something else” is what I term here collective equality. Inequality and discrimination are a central category of political and legal discourses about the injustices of ethno-national conflicts. Yet, despite equality being a foundational principle of justice and law, we have no clear account of the meaning of equality in the context of peacemaking and of the legal consequences that should follow. In this chapter I aim to develop the concept of collective equality as one of justice for situations of intergroup conflict. In doing so, I have tried to extricate what I perceive to be the fundamental (reasonable) perceptions of justice in sites of ethno-national conflict and to sustain core principles of liberal justice and what matters about them the most in places riven by group-based conflict. Embedded in common, local perceptions and in sustaining peace agreements, collective equality is a relational, intergroup understanding of justice as equality and inclusion (and injustice as group-based discrimination, exclusion, and oppression), to be secured through a system that supports fair cooperation among ethno-national groups. I adopt Rawls’ political liberalism as the primary theoretical framework, but adapt it to the nonideal conditions prevalent in deeply divided places and to the challenges of transition: transition from conflict to peace and from intergroup discrimination and domination to a fair system of social cooperation within which relations between groups and individuals are based on equality and nondomination. While I develop the argument theoretically, the idea of collective equality comes from the practice of peacemaking, and originally from “parity of esteem,” a concept that became a buzzword during the Northern Ireland peace process (Hennessy & Wilson, 1997, “National questions”). The fundamental principle underlying collective equality is the equal right to self-determination of peoples, in which peoples are understood as national/ ethno-national groups. Most significant here is that the right applies equally to all the national collectives involved in the conflict. Unlike existing liberal nationalism accounts, which focus on a cultural interpretation of national selfdetermination, collective equality focuses on the collective’s demand to have control over their lives and, importantly, not to be dominated by “the other.”

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Like individuals, groups are continuously identified in relation to one another, and our justice account should refer not only to these groups’ rights and duties toward individuals, states, and the international community, but also to the positioning of these groups toward one another. Ethno-national groups caught in a conflict are engaged in intense relations and intimate conflict. Since the groups’ relations are expected to continue, as most contemporary conflicts cannot be resolved through a complete separation between rival group members, our conception of justice to be applied in such situations should reflect the centrality of intergroup relationships. Rooted in contemporary practices of peacemaking, collective equality adopts a relational understanding of equality and self-determination and endorses equal relations between national groups (in addition to and with the purpose of ensuring equality among their members) as the relevant justice ideal. Instead of “majorities” and “minorities,” the groups are perceived as equal nations that owe each other mutual recognition and acknowledgment of their equality. Building on the political practice of peacemaking and on theories of political justice, collective equality assumes that the process of political transformation should attend to four dimensions of equality: one procedural – addressing the proper position and relation between the sides within negotiations – and three substantive dimensions – redistribution, recognition, and representation (Fraser, 2004). 7.2  LIBERAL ETHNO-NATIONAL JUSTICE

7.2.1  Thinking about Justice and Peace in the Context of Ethno-national Conflicts It is often said that peace must be just, that peace without justice is not peace at all, or that peace without justice for all the involved parties will not last (Bar & Siman-Tov, 2010). But the necessity of justice as an indispensable condition for peace also attracts strong criticism that such conditionality between justice and peace should be rejected, since requiring a “just” peace raises serious barriers to conflict resolution and may cost the continuation of violent conflict (Nystuen, 2005, 3–4; Beilin, 2006, 130–131; Bar, Siman-Tov, 2010). If indeed we were confronted with a choice between a nonjust peace and no peace at all, we might be compelled to opt for the first option over the continuation of war. However, I believe this is not the actual dilemma, and posing it as such is unhelpful, even misleading. It portrays both peace and justice as concepts and goals that stand against one another and demand a preference be made. Indeed, this is how the two concepts are commonly perceived. In ruling on

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Bosnia and Herzegovina’s constitutional arrangements, both the ECtHR and its critics framed the case as a peace versus justice dilemma. But this is not the reality of peace and justice, and this is not the only way to see the existing disputes (Albin, 2008). While I address the relations between peace and justice in Chapter 8, I want to make several initial observations to support my assertion that there are important connections between justice and peace. First, in reality many peace agreements do not survive, implying that signing a peace agreement, even receiving the Nobel Peace Prize, should not be regarded as equivalent to ending war or conflict. The Israeli–Palestinian conflict is a good and regrettable example of that. Second, some correlation has been found between the consideration of justice and the durability of peace agreements (Albin & Druckman, 2012a; 2012b). Third, and probably most significant, the option of choosing to avoid considerations of justice and law is not truly feasible. Justice and law are both clearly needed in some sense and do in fact already apply to peacemaking (cf. Koskenniemi, 2006, xiv). Likewise, doing away with justice and law in peacemaking does not make them go away, but only allows them to shape our perceptions and decisions without us noticing them and critically examining their influences. As demonstrated in the ECtHR cases regarding Bosnia and Herzegovina’s constitutional arrangements, multiple legal concepts and rules, including human rights, equality and discrimination obligations, perceptions of proper democracy, demands for accountability, and so forth, are already applied to peace processes and peace agreements. Since considerations of justice and law already apply, the question is not whether it is right and wise to burden peace processes with justice and legal considerations, but rather whether prevailing justice conceptions and normative burdens are the right ones and, if not, what these perceptions and requirements should be. The core questions therefore relate to the understanding of justice and to the specific requirements that derive from those understandings in situations of ethno-national conflicts. In the past, relatively little conceptual thinking went into the question of what constitutes a peace that is just (Allan & Keller, 2006, 1), but the last few decades have seen the issue of justice and peace receiving increased theoretical and practical attention within conflict resolution, peace studies, peacebuilding, and transitional justice. Two main approaches as to what constitutes a just peace can be extracted from these discussions. The first approach emphasizes the need to correct past injustices as an indispensable element of peace. With much of the focus placed on ­accountability, criminal investigations and trials at national and international courts attracted much of the attention of transitional justice (Minow, 1999, ch. 3; Teitel, 2003).

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However, during the last few decades new understandings, practices, and mechanisms have developed, aimed at dealing with large-scale past abuses. According to this approach, justice demands not only accountability and punishment, but also truth-seeking, accepting responsibility for past wrongs, apologies and requests for forgiveness, as well as material and symbolic reparation for victims. According to a guidance note issued by the UN Secretary-General, the UN approaches transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (Guidance Note of the Secretary-General, 2010; see also Roht-Arriaza, 2013). The second approach sees the connection between peace and justice as forward-looking justice, best captured by justice as fairness, where peace processes and agreements need to be the result of each party’s free consent, and to secure procedural as well as substantial justice principles (Bar & Siman-Tov, 2010, 229; Albin, 2001; Druckman & Albin, 2011; Deutsch, 2000; Bellamy, 2020; Gleditsch, 2020). Interestingly, the primary justice principles that have been found to correlate with more durable peace are equality (Albin & Druckman, 2010; 2011; 2012a; 2012b) and political inclusion (understood as representing inclusive power configurations at the highest level of government, see Wimmer, 2013a, ch. 6; 2018a). Scholarship and experience gained in the various fields of peace-related research show that both understandings of justice are essential components of a just peace. Accordingly, recent UN discussions and resolutions emphasize the need for a comprehensive approach to both peacebuilding and transitional justice. In a February 2020 UN Security Council discussion on transitional justice, the role of victims and the importance of listening to them are not confined to being for the sake of truth alone, but also are a gateway for inclusive participation of all segments of society, and part of institutional reform to deal with the root causes of the conflict. Likewise, remedying past injustices is included within discussions regarding the design of political structures, institutional reform, or as part of legal obligations to equality and nondiscrimination. But while both understandings of justice are essential for peace processes, most discussions about justice in peace processes have so far focused on questions of accountability, amnesty from criminal prosecution, and redress for victims. In parallel, scant scholarly attention has been given to questions of forward-looking justice in the context of peacemaking, including the justness of institutional design and constitutional arrangements in sites of ethno-national conflicts. It is of great importance that we expand our understandings of justice requirements for these arrangements, a primary element of peace-related discussions, as many of the issues that underlie ethno-national

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conflicts are connected to entrenched systematic injustices within the nationstate. While these are often the result of past injustices, including those stemming from the legacies of colonialism and settler colonialism (Rolston & Ni Aolain, 2018), they are validated and recreated even by democratic political structures (Smooha, 1997; 2002; 2009; Yiftachel, 2006; Das, 2012, 7; Horowitz, 2014). Moreover, restructuring the political system and other state and social institutions to be inclusive of previously nondominating groups is found at the center of many peace negotiations. Thus, more clearly articulating what justice permits and demands in the promotion of peace in ethno-national conflicts is vital to advance peace and justice. So, beyond the need to address past wrongs, our peace efforts must be directed to the “basic structure of society,” which, if designed properly, can secure long-term background justice (Rawls, 2001a, 10–11). Thus, I concur with Ruti Teitel’s definition of transitional justice as “that conception of justice associated with periods of political change” (Teitel, 2000, 3). 7.2.2  “Political Liberalism” as an Organizing Framework I find political liberalism to offer the best starting point for the current task – theorizing political justice and peace in conflict-ridden places (Rawls, 1993; 2001a; 2001b). Yet, a significant diversion is needed – from the requirement of state neutrality to accommodate a place for “nations” distinct from their states. Perhaps surprisingly, Rawls acknowledged such a diversion as permissible, aware that the social assumptions upon which he constructed his theory are not present in many other places. Rawls’ hope is that by beginning in this simplified way (i.e., assuming the existence of common sympathies between peoples), it will enable us to extract political principles applicable also to more difficult cases “where all the citizens are not united by a common language and shared historical memories” (Rawls, 2001b, 25). Here Rawls specifically refers to the idea of nation (as understood by Mill) as distinct from the idea of government or state, and to Yael Tamir’s account of Liberal Nationalism (Tamir, 1993; Rawls, 2001b, 25 fn 20). A central reason Rawls’ account of political justice is applicable and useful to the current task relates to his decision to construct a theory in which a plurality of worldviews can exist within a society. I deem the accommodation of a plurality of worldviews as essential not because of the intrinsic value of the worldviews themselves, but because it is part of securing equal respect for persons, and recognizing “the fact of profound and irreconcilable differences in citizens’ reasonable comprehensive religious and philosophical conceptions of the world, and in their views of the moral and aesthetic values to be sought

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in human life” (Rawls, 2001a, 3). Importantly, Rawls refrains from assumptions about the moral superiority of any specific comprehensive worldview – including liberalism – and from according any comprehensive worldview an intrinsic and objective value (see Nussbaum, 2011). As illustrated later in this chapter, we can find this sort of political standpoint resonating and underlying contemporary peace agreements such as Northern Ireland’s GFA. 7.2.3  The Nonideal Theoretical Approach The task of considering how international law and the underlying political and justice paradigms can better support ethno-national peacemaking requires us to engage in two interrelated examinations: first, to examine which conceptions of a just basic structure are adequate to sites of group conflict; and second, to engage with questions of transition – that is, how to work from existing realities of violent conflicts, oppression, political exclusion, severe groupbased inequalities, and other social evils to a world of stable social cooperation. The literature assigns this later task of transition from nonjust to more just social conditions within nonideal theory, considering “the questions arising from the highly non-ideal conditions of our world with its great injustices and widespread social evils” (Rawls, 2001b, 89–91). This asks how this long-term goal might be achieved, and how we can gradually progress toward this goal. Nonideal thinking therefore provides theoretical guidelines to help choose policies and courses of action that are morally permissible, politically possible, and likely to be effective (Rawls, 2001b, 89–91). However, a transitional investigation is also important to evaluate the proper goal, since if we cannot reasonably imagine a morally permissible way to reach the ideal of justice, then we cannot regard it as realistic. For example, if the goal requires us to achieve a kind of social homogeneity that is attainable only through the use of mass expulsions, then we must reject this ideal and prefer another one that can be achieved through the use of permissible policies and actions. The method of inquiry used in this book – grounding the theoretical reflection in the empirical reality of deeply divided places and peacemaking – aims to remove the risk of naïve idealism and provide an account that is realistic and just. 7.3  WHY RECOGNIZE A RIGHT TO SELFDETERMINATION OF NATIONAL GROUPS?

The first step of collective equality is to justify recognizing national collectives as having a justifiable claim – a right – to national self-determination. As self-determination is a foundational principle of both international law and

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the liberal tradition, and as the right to self-determination has been justified quite extensively within the liberal nationalism literature, a discussion that looks into possible justifications for that right might be seen as redundant. However, while the right to self-determination is widely accepted, what it means remains highly debated. Therefore, while collective equality is built on existing accounts, I invest some effort in defending the choice to adopt an e­ thnic and political understanding of a nation, and of national s­elf-determination, and to diverge from the traditional understanding of proper nationalism (as a civic nation defined by territory) and from prominent liberal nationalism accounts (which adopt a cultural understanding of nationalism). 7.3.1  The Perils of Ethno-nationalism A central distinction and tension exist between two understandings of selfdetermination: a territorial understanding, reflected in the state’s right to administer a specific territory; and an ethno-national understanding, reflected in the aspiration of a people to govern themselves (Koskenniemi, 1994). Forged by nationalism and early liberalism, the territorial and national understandings of self-determination have been merged together within the compelling concept of the nation-state, concealing this tension and assuming it to be nonexistent. Although most modern states have their origins in ethnic nations and cultivate a particular national identity, contemporary international politics and law endorse the territorial/statist understanding of self-determination and formally reject the ethnic/national interpretation (Donnelly, 1993; Kohen, 2006; Shany, 2014; Castellino, 2014). Indeed, a common reaction of many liberals to nationalism is guided by avoidance or rejection (Tamir, 1993, 5–10; Fukuyama, 2018, 9; Wimmer, 2019). This common reaction turns to repulsion when we speak of ethno-nationalism, which “came to be associated with an exclusive, ethnically based sense of belonging,” particularly as this type of identity “led to the persecution of people who were not part of the group, as well as to acts of international aggression committed on behalf of coethnics living in other countries” (Fukuyama, 2018, 9). The four cases compared here provide us with illuminating examples of how such persecutions have indeed taken place and included mass expulsions and even genocide. This danger of an unleashed ethno-nationalism plays a central role in the forging of contemporary politics and law. Despite liberal rejection, ethno-nationalism is not fading away and is not exceptional. Almost all democratic states, including those in Western Europe, have ethnic foundations (Kuzio, 2002; 2007; Wimmer, 2002), and the cultivation of national solidarity plays a prominent role in national politics to this day. Educational programs, constitutions, and many state laws are utilized to

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advance national solidarity. And while a formal civic conception of the state’s nationalism downplays ethnic identity, the ethnic majority is able to maintain its domination through majoritarian democracy. As argued by Timo Makkonen, For liberalism, ethnic diversity and ethnic communities have, as such, no political relevance. In consequence, ethnicity plays a peculiarly ambiguous role in the field of politics in Europe: on the one hand it is reified as the foundation of the nation-state, on the other its political significance is completely denied. This tension between reification and denial of ethnicity is, it is suggested, one key factor that conditions intergroup relations and debates about the meaning of equality in Europe. (Makkonen, 2012, 18)

While we may criticize this two-faced aspect of the liberal tradition, we must acknowledge the valid reasons that drove it: the inherent tension between the three pillars of political modernity – democracy, citizenship, and popular sovereignty. Nationalism, which had the advantage of allowing for the inclusion of large populations – previously treated under the status of subjects – also had the negative effect of creating new forms of exclusion based on ethnic or national criteria (Wimmer, 2002). The “proper state” has therefore taken the shape of civic nationalism, whereby the state is expected not to adopt a clear or formal ethnic affiliation. The current interpretation of the right to self-determination in international law, which does not recognize a right of ethno-national groups as distinct from the state they inhabit (see Chapters 3 and 9), should be understood as part of this paradigm of the “proper liberal state.” Beneath all this rests the liberal assumption that such a civic and diluted understanding of the nation and of self-determination will provide the proper liberal way to respond to the threat raised by unleashed ethno-nationalism. Thus, in practice this assumption led to denouncing ethno-national groups’ affiliations as illegitimate and to the view that the best liberal democratic model is a neutral or civic state functioning as a majoritarian democracy with human rights protections (Chapter 5). The problem is that this model does not work in all places. 7.3.2  Failures of Liberal Democracy in Ethno-national Divided Places Both John Stuart Mill and John Rawls assume that “common sympathies” among the state’s citizens are the social conditions needed to support liberal democracy (Mill, 1977, ch. 16; Rawls, 2001b, 23–25). The need for a developed, shared national identity has also been stressed by David Miller, who supports a common will to be under the same government and characterized by high levels of trust among compatriots (Miller, 1995a, 90–98; see also Banting & Kymlicka, 2017, 2–3). Indeed, for liberal democracy to be

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constituted and maintained, the universal liberal principles of individualism and equality need to be accompanied by beliefs about the uniqueness of the specific society and its recognized members and by wide public consensus to be under the same government. Historically, nationalism has played that role for liberal democratic societies (Beetham, 1994; Miller, 1995a; Mouffe, 1997; Wimmer, 2002; 2013a; 2018b). But this role seems to be neglected by contemporary accounts. In contrast, in its absence liberal peacebuilding, with its heavy focus on democratic elections and rule-of-law institutions, has failed to produce sustainable democracy and political stability (De Coning, 2016; 2018a; Wimmer, 2013a; 2018a; 2018b). In those places where the territorial and national understandings of selfdetermination are merged together – where the “people” as citizens, sovereign entity, and ethnic community overlap – the liberal and the national ideals overlap and reinforce each other. However, such overlapping is not natural and has not been created accidentally, but rather is the product of long processes of nation-building involving deliberate cultural, religious, and ethnic homogenization. For example, in the European history of nation-building processes, places with a heterogenous ethnic landscape have been reformed through the use of practices such as forced assimilation, physical expulsion, the conquest of territories inhabited by conationals, or encouraging the return of conationals to the homeland (Wimmer, 2002, 3). Places where centralized, bureaucratic states had emerged in the distant past, where citizens share a common mode of communication and have forged a dense net of political alliances across ethnic divides, have better chances for successfully creating a viable political community (Wimmer, 2018a; 2018b). In contrast, in places that have not been previously politically integrated and have not cultivated national identification with the state, political ties tend to be built on ethnic commonality (Wimmer, 2013a; 2018a). In such places the national and liberal ideals exist in harmful tension. According to the democratic ideal of popular sovereignty, the state is considered to be owned by the entire citizenry and obliged to treat all citizens equally. However, where political integration has not been gained (either of individual citizens or of ethnic communities), state elites tend to rely on ethnic ties, and reward them, to the exclusion of ethnic others (Wimmer, 2013a, ch. 2). In such places that have not previously politically integrated, democracy – usually understood as democratic elections and majority rule – does not breed more inclusion (Wimmer, 2013a, 179). However, what democracy in this “proper” shape does breed is legitimation – for the majority’s control of the state and the state’s minority/minorities; that is, legitimizing the status of ethnic majority and ethnic minority group(s) as unequal in political status and power. Thus, in situations of conflict, this

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democratic model is likely to contribute to the entrenchment of hierarchical relations and exclusion of the ethnic minority (Smooha, 1997; 2002; 2009; Yiftachel, 2006; Das, 2012, 7; Horowitz, 2014). Imposing obligations on the political authority governing the territory to protect individual human rights and minority rights is meant to overcome the exclusion of minorities from political power, and to ensure the equality of all the state’s citizens notwithstanding their ethnic or national affiliations. Following the “rights revolution” (Ebb, 1998; Skrentny, 2002; Joppke, 2007), the legitimation of the state has become conditional on the protection of individual and minority rights. While in the West the rise of human rights has delegitimized social orders based on ethnic and racial hierarchies, it has had limited success in securing equal status, rights, and political inclusion for national minorities, especially in deeply divided places (Chapters 4 and 5). The insufficient success of human rights in such cases is not only a problem of compliance. In conflict-riven localities, ensuring human rights and, even more so, special minority rights is perceived by the majority as dangerous and makes them less willing to afford these rights to the minority. While failing to secure equality for the members of the minority is wrong, imposing on the majority what is perceived by them as an excessive risk to their fundamental interests is not helpful. The experience of all four cases demonstrates this tendency where we can identify the double minority/double majority syndrome, whereby national dominant groups feel genuinely threatened. Let us take Northern Ireland for an example: While the Protestant-British Unionists formed the majority in Northern Ireland and felt and behaved as an “entitled” majority, the Catholic-Irish Nationalists, though a minority in Northern Ireland, felt also like the “entitled” majority, being part of the native population and the majority in the entire island (Mac Ginty et al., 2007). At the same time their equally strong fear of the other group’s claims to selfdetermination over the territory made them feel like a threatened minority. Thus, it is argued, “both groups display at the same time the worst features of each category: the arrogance of a majority and the insecurity of a minority” (Hayes, 2007, 98). Similar observations can be made with regard to the Cypriot conflict (Richmond, 1999), as well as with regard to the Bosnia and Herzegovina and Israel–Palestine conflicts. In such situations of protracted conflict, increasing external pressure to afford such rights might lead the majority to react adversely and consequently trigger an even stronger objection to liberal and human rights requirements. When the human rights framework fails to counter the adverse effects of majoritarianism, we are left with a majoritarian system and the ethnic majority’s conviction that they are entitled to govern the state as their own.

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To sum up, in the ideal scenarios of both liberalism and nationalism, the liberal conception of self-determination supports and promotes a valid claim of the nation to the entire territory, while nationalism supports democracy and the liberal ideal by promoting solidarity among the state’s citizens. However, in the nonideal scenario, when the citizenry is not united by “common sympathies” but divided by competing national loyalties, these two ideals stop supporting each other and begin to conflict, especially when the national groups feel threatened. In such cases, the justification for sovereignty – over the territory and the entire citizenry – does not hold. When the minority challenges the legitimacy of the ruling majority, the government faces a double problem: the practical matter of governing a polity where a significant part of the population objects to being governed, and morally it loses its status as a freely elected government rightfully governing the entire territory and citizenry. In such cases, then, both pragmatic and principled considerations undermine the suitability of majority-rule democracy and suggest that another approach is needed for genuinely promoting equality and political inclusion. In other words, the liberal democratic prescriptions are clearly not enough to secure deeply divided places from the dangers of exclusionary and unleashed ethnonationalism, and a viable alternative should be sought and promoted. 7.3.3  Reasons to Recognize Ethno-national Groups “Liberalism,” argues Chaim Gans, “can acknowledge the value of national groups only if it is based on fundamental interests of their individual members and if these interests are interests that could in principle be held by all human beings” (2003, 169). In the same vein Buchanan writes: “it is only individuals ultimately that matter, morally speaking … justifications for moral principles, actions, and policies must ultimately refer to the well-being and freedom of individuals. It follows that liberalism can accommodate group rights if their ultimate justification is that they provide protections for important interests of individuals – including their interests in their identity as members of a group” (2007, 157–158). Accordingly, two central reasons are given in the literature about nationalism and group rights to justify a liberal recognition of national groups. The first is the positive argument that such groups secure important interests of individuals, which are otherwise unattainable (Margalit & Raz, 1990; Tamir, 1993; Miller, 1995a; Moore, 2013; Morris, 2016). Indeed, many people attach great value to their national membership, and the national group and its culture provide a meaningful context within which people can frame, revise, and pursue their goals (Kymlicka, 1995, 89). The national group also plays an important role in people’s self-identification and feeling

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of belonging (Margalit & Raz, 1990; 448; Taylor, 1992; Kymlicka, 1995, 89). However, keeping in mind that the theoretical guiding principle I endorse here is respect for persons and not for worldviews or moral doctrines as such, I endorse these reasons not as relying on metaphysical claims about identity and human flourishing, but as reflecting respect for the actual choices individuals make. The second type of argument is about corrective justice (Moore, 2013; Song, 2017; Miscevic, 2018). Recognition of national groups is important to redress or prevent oppression and injustice inflicted on their members by others, especially by other national groups, and providing them with an institutional vehicle to remedy their disadvantaged position and achieve equality in relation to dominant groups (Miscevic, 2018, section 3.3). Indeed, the ethno-national conflicts examined in this book illustrate this point quite vividly. In Northern Ireland, it was the Irish Catholic Nationalists who demanded national recognition as a response to prolonged colonial conquest and later as a response to their oppression and discrimination by the British Protestant Unionist governments. In Cyprus, it was the response of the Turkish Cypriots to the rise of exclusionary Greek Cypriot nationalism, and the oppressive control pursued by the Greek Cypriots particularly during the decade between 1964 and 1974. But, looking beyond both of these arguments, the overarching justifying rationale is the granting of due respect for people’s choices. Respect for people’s choices is rooted in both a procedural and substantive justification; that is, if a (sizable) group of people wishes to be self-determining, their choice should be regarded, prima facie, as genuinely reflecting their fundamental interests and thus as justifiable (see Miscevic, 2018, section 3.3). This focus on the actual choices a group of people makes is justifiable, since it is these choices that both reflect and constitute the meaningfulness of culture and identity and validate the aptness of the collective strategy to counter oppression and disadvantage. 7.3.4  Whose Right? Defining Peoples Defining national self-determination requires clarifying two interrelated questions. The first question asks which groups count as “national groups” or “peoples” endowed with the right to self-determination, and whose legitimate interests are to be protected by that right. The second question asks which fundamental interests are included in national self-determination and can legitimately be embedded in political arrangements. The question of defining “peoples” entitled to self-determination is challenging, as the long debate on the issue shows (Cristescu, 1981;

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Margalit & Raz, 1990; Miller, 1995a, 11; Nowak, 2005; Hannum, 1996, 334; Buchanan, 2007, 379–381, to mention a few). Acknowledging the potential shortcomings of any definition, I suggest defining a national group or a people as a sizable group that aims and accordingly acts to realize political aspirations for s­ elf-determination (Miller, 1995a, 11; De-Shalit, 1996, 906), where self-determination is understood more broadly as including political arrangements that secure the ability of the group to have control of its political life and its collective development (and not only an independent state). The definition builds on the abovementioned justifications for recognizing ethnonational groups, and on the understanding, emphasized by Frédéric Mégret, that self-determination “is not an inherent right but a right that is earned” (Mégret, 2016, 45), an understanding that corresponds with how nationhood and peoplehood are understood today, as something constructed, not primordial or essential (see Chapter 1). The definition provides a criterion for distinguishing between national groups (peoples) and other minority groups (Article 27, ICCPR) that do not act toward collective self-determination. While the distinction between national groups and other minorities is not always sharp, there are situations (particularly active self-determination conflicts) in which the distinction is sharper and clearer. Unlike the prevailing criteria under international law, the suggested definition emphasizes the centrality of collective choice and actions (Miller, 1993; Mégret, 2016), in line with contemporary understandings of nations and nationalism (see Chapters 1 and 2). Beyond the value of respecting the group’s self-identification, the suggested definition reasons that when such demands are made by a group of people, their demands, validated by their actions, are likely to reflect important interests of the individual members of that group. Although the definition is highly subjective, it has objective foundations. It requires a sizable distinguishable collective that can be identified as a group, an expression of a collective will, and engagement in concrete actions directed toward obtaining political powers. While in reality identifying an actual public choice is not an easy task, political and legal practices provide different ways by which a group can reach such a decision, for example it can be made by a representative body of the whole people, such as a liberation movement (Cassese, 1995, 146–147), through democratic elections, referenda, plebiscites, or resolutions made by “a clear majority” on “a clear question” in favor of the demands (Secession of Quebec from Canada, 1998, 2 S.C.R. 217; ILM 37, para. 93). In addition, in actual situations of violent ethno-national conflict, a salient group identity has often been formulated, and collective action and common ambitions can be traced. Indeed, I suggest understanding the right to self-determination as highly subjective. When a group of people expresses

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a will and acts toward the accomplishment of self-determination as a common goal, then that group, its actions, and its pursued goals can be regarded, prima facie, as serving the interests of the individual members. Since liberalism can accommodate group rights if they also provide for individuals’ vital interests, there is valid justification for recognizing a specific group’s right of self-determination when the group’s demands and actions are in accordance with an ambition to achieve or maintain self-determination. 7.3.5  Legitimate Interests of Ethno-national Groups To identify the legitimate interests included in national self-determination I start with Rawls, whose account of the fundamental interests of peoples includes the protection of peoples’ political independence, peoples’ “free culture with its civil liberties,” as well as their security, territory, and the wellbeing of their citizens (Rawls, 2001b, 34). Rawls’ account resonates quite strongly with the right to self-determination under international law. According to Common Article 1 of the ICCPR and the ICESCR, the right of peoples to self-determination recognizes peoples’ interest to “freely determine their political status and freely pursue their economic, social and cultural development.” However, in addition to these interests, which are widely recognized as included within the right to self-determination, Rawls acknowledges another important interest, often overlooked in accounts of self-determination – peoples’ interest in a “proper respect of themselves as a people, resting on their common awareness of their trials during their history and of their culture with its accomplishments” (Rawls, 2001b, 34; see also Honneth, 1996; Patten, 2014). This interest of peoples in “proper respect” is different from the issue of state recognition under international law (for state recognition see Crawford, 2006; Shaw, 2017, ch. 9). I am aware of the accepted view that Rawls does not refer to peoples as ethno-national collectives but rather as states or peoples that are “groups with their own states,” as Buchanan has put it (2000, 698). I am also aware that the right to self-determination under international law has also been traditionally understood territorially, as attached to a territorially defined state, rather than to an ethnically defined people. Nevertheless, I find these articulations of the basic interests of peoples applicable also to describe the legitimate interests of ethno-national groups. I thus aim to show why Rawls’ account is valid and useful more broadly – not only for peoples with their own state, but also for peoples who aspire to collectively govern themselves through other political arrangements than an independent state (Mégret, 2016, 45). Rawls’ account corresponds with the three kinds of justifications for an ethno-national group’s right to self-determination. While his account

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acknowledges people’s interest in protecting and developing their culture, his justification, unlike some of the cultural interpretations of national selfdetermination, does not revolve around it, nor is it restricted to guaranteeing the protection of the national culture (cf. Margalit & Raz, 1990; Tamir, 1993; Margalit & Halbertal, 1994). Importantly, Rawls’ account extends to and includes wider political interests such as security, territory, and the general wellbeing of the group’s members. While I concur with the argument that societal groups that enjoy a common culture have a vested interest in the preservation of that culture, cultural preservation cannot be regarded – either descriptively or prescriptively – as capturing the whole essence of what nationalism and self-determination are about. As argued earlier (Chapters 1 and 2), the interest of members of an ethno-national group is not merely to protect the group’s culture, since the relations between culture and politics are much more complex (for the argument in support of self-determination as a political rather than a cultural claim, see De-Shalit, 1996). Culture is both a constituting element of the group and constituted by the group, and constantly is in an intimate interplay with politics (Eller, 1999, 5). Thus, I depart from the cultural emphasis found in ethno-culturalism accounts (such as Tamir, 1993; Gans, 2003, 2008, 18) and opt to see the national demand for political powers as central to national self-determination, and independent from the group’s interest in cultural preservation (De-Shalit, 1996; Mégret, 2016). National self-determination should then be regarded as based on a justifiable interest in political powers that are needed to secure extensive political goods for the group’s members. Indeed, such a normative recognition implies wider legitimate interests within the political sphere than what is usually acknowledged by liberals and by international law. The Venice Commission recommendations regarding Bosnia and Herzegovina’s constitution, and the ECtHR cases of Sejdić and Finci (2009) and Šlaku (2016), are examples of the way in which such a cultural understanding influences the delimitation of legitimate interests. I recall that in these cases the Venice Commission and the ECtHR assumed that the legitimate interests of the three ethno-national groups of Bosnia and Herzegovina are restricted to the realm of cultural preservation (Chapter 6). While preservation of the national culture can be regarded as a legitimate and important interest of Bosnia and Herzegovina’s national groups/peoples, it is not justified to assume it to be exhaustive; that is, the only legitimate interest of the ethno-national groups. As argued before, ethno-national groups have a justified interest in redressing and preventing oppression and actual or potential injustices that might be inflicted upon them and their members. Such an interest stems from the prevailing reality that whoever controls the state has immense influence on the

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present and future wellbeing of the group members, as exhibited throughout Part I of this work. Examples can be brought from the cases compared here: the fate of the Irish Catholic minority under the Unionist government from 1922 to 1972; the fate of the Turkish Cypriot minority during the decade between 1964 and 1974 before a separate political entity was crafted for them by the Turkish military intervention; or the fate of Arab Palestinians under the control of the state of Israel, some of them since 1948, and many others since Israel occupied the West Bank and Gaza in 1967. The Arab Palestinians included in the state of Israel in 1948 became Israeli citizens, and nevertheless have been subjected to sustained state-sanctioned policies of discrimination (Kretzmer, 1990; Ganim, 2001; Jabareen, 2015; Daoud et al., 2018): The Arab Palestinians living in the areas that were occupied by Israel in 1967 were not accorded or offered Israeli citizenship, and are treated under the status of subjects of the Israeli military regime (for the difference in the Israeli control of the West Bank and Gaza since the Israeli disengagement in 2005, see Kretzmer & Ronen, 2021, ch. 9). Such conditions of systematic and enduring discrimination and exclusion also explain a group’s interest in having political control over its collective future. As mentioned earlier, I find this addition to liberal-cultural nationalism to be central, as it has implications for the scope of the legitimate aims of ethno-national groups and thus also for what would be considered as within the proper means to address them. In view of the structural nature of the discrimination and the inability of individual human rights obligations to provide for meaningful remedy (Makkonen, 2012, 280), structural-collective measures are necessary tools to protect the basic rights and interests of group members. This is why restricting the legitimate political powers of ethno-national groups to cultural preservation is unsatisfying and missing a vital point. Clearly, it does not follow that by acknowledging the wider political interests of national groups, all of their demands are legitimate or should be secured. Indeed, a central aim of collective equality is to offer a principled way to delimit the justified scope. It is understandable why recognizing these wider political aspirations has been most controversial in liberal terms. Beyond the perils mentioned in Section 7.3.1, a primary concern has been that not all national groups may be accorded an independent state (see Chapters 3 and 9). As we have seen in Chapter 3, in deeply divided places, where the territorial borders do not and cannot correlate with the national unit, even if partition were to take place an alternative to fulfilling national self-determination by means of independent nation-states is needed. The suggested practical alternative presented in Chapter 5 is based on the construction of new political arrangements in which the national groups exercise complex forms of selfdetermination, conjoining internal and external arrangements.

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Drawing from the practice of peacemaking, my answer to this concern correlates to a large extent with the views expressed by Gans (2008, 62–68). To allow for the justified interests of national groups, political independence needs to be understood and fulfilled in different ways involving hybrid selfdetermination (Bell, 2008, 218–238). What seems to be required is that the ethno-national group possesses enough agency to secure its present and future collective wellbeing, which corresponds with the way self-determination is proclaimed in the Friendly Relations Declaration of the UN: “The establishment of a sovereign and independent State, the free association or integration with an independent State or the emergence into any other political status freely determined by a people constitute modes of implementing the right of self-determination by that people” (emphasis added). In practice, the ways in which the right to self-determination can be fulfilled in any given situation should be affected by three primary considerations (cf. also Mégret, 2016): (1) the concrete surrounding circumstances and mainly the dispersal of the population in the disputed territory; (2) the preferences of the self-determining group(s) involved, which draw on national and political traditions and values or concrete collective experiences; and (3) existing political arrangements, which must be addressed properly (cf. Rawls’ idea of legitimate expectations, 2001a, 72–74). Overarching all of these is the obligation for equality of the involved national groups’ right to self-determination and that they are all considered equals. While many political forms may support the requirement for national self-determination, being dominated, be it by another nation or any external or internal noninclusive force, is clearly not among them. 7.4  THE IDEA OF COLLECTIVE EQUALITY

At the core of the collective equality idea lies a recognition of both national majorities and national minorities rather than only national majorities, as is the de facto practice today, or national minorities as the term is sometimes understood by liberals. Collective equality furthers the idea that both dominant and nondominant national groups should be recognized as collective actors with equal rights to self-determination within our conception of justice. 7.4.1  Ethno-national Justice: An Additional System of Social Cooperation Inspired by Rawls’ Political Liberalism, the concept of collective equality starts with adopting the fundamental idea of society as “a fair system of social cooperation over time from one generation to the next” (Rawls, 2001a, 5). However, collective equality diverts from Rawls’ accounts of Justice as Fairness and of

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The Law of Peoples (2001a and 2001b), by acknowledging ethno-national groups, in addition to individuals and states, as actors engaged in social cooperation. Recall that according to Rawls and the liberal tradition at large, there is a clear and sharp distinction between two levels of justice: domestic and international. A foundational element between these two levels in Rawls’ theories is the identity of the participants involved in social cooperation at each of the levels. While domestic justice refers to the liberal society of citizens, international justice refers to the society of states. Although Rawls distinguishes clearly between peoples and states and develops his theory as a law of peoples, it is customarily understood as a theory of international law in which the primary actors are states or “groups that have their own state” (Buchanan, 2000, 698). The understanding that the state, a bounded political community, is the principal actor at the international level also reflects the dominant paradigm of international law and theories of international relations, and of national and international conflict. In Liberal Nationalism, Tamir addresses national groups’ lack of standing in international institutions: “The most palpable expression of disregard for stateless national groups was, and still is, that international institutions such as the League of Nations or the United Nations, in spite of their names, accept only states as members” (Tamir, 1993, 144). Indeed, within the existing international framework, room for acknowledging ethno-national groups as actors engaged in mutual cooperation is extremely limited, if it exists at all. This would not pose a problem if places divided by ethno-national conflict adhered to the aforementioned ideal distinction between the domestic and the international levels, and could thus be adequately treated domestically. However, as observed in Chapter 3, this does not reflect the reality in sites of conflict. Since the social boundaries of the ethno-national groups engaged in conflict do not correlate to states’ borders, we have seen that such conflicts commonly involve domestic and international aspects alike. In the Bosnia and Herzegovina case, we saw that the internal divide among the three ethno-national groups was coupled with two of the groups being tightly connected to their respective kin-states, Serbia and Croatia. Greek Cypriots were connected to Greece and demanded that Cyprus be annexed to it, while Turkish Cypriots demanded separation to become part of Turkey, later seeking secession and independent statehood. Irish Catholics sought the long-awaited reunification of the entire island of Ireland under independent Irish sovereignty. In the same vein, the Israeli– Palestinian conflict is mainly conceived as an international conflict between Israel, understood as bound to the state’s sovereign territory, and Palestinians living outside of Israel proper (in the occupied West Bank, Gaza, and in the diaspora), but in fact it includes various internal aspects, among them the presence of a significant Arab-Palestinian minority whose members are Israeli

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citizens, approximately 690,000 Israeli Jews now residing in the occupied West Bank and East Jerusalem, and the widely held perception, held by many members of the two groups, of the entire land as their homeland. Since the empirical reality of deeply divided places often involves a mixture of domestic and international dimensions, and since this mixture cannot be eliminated,2 neither can the social and political structures be restricted to the state’s internal territory nor to the international level, but encompass them both. This is not an abstract theoretical rationalization, but rather vividly demonstrates the emerging peacemaking practice of hybrid self-determination (Bell, 2008, 218). As we have seen, both the Bosnia and Herzegovina and Northern Ireland peace agreements use complex power-sharing arrangements that involve internal (federal and consociational) as well as external (confederal) power-sharing arrangements. Recall also that total ethnic separation is unreasonable and ethnonational diversity unavoidable. Thus the task of transforming e­ thno-national conflicts must include securing the continued mutual c­oexistence of rival ethno-national group members and the institutionalization of fair social cooperation (or interdependence) between the groups and the groups’ members. Since relations between the rival groups are expected to continue, and since any change to the reality of ongoing conflict depends on their actions, it follows that social stability depends to a very high degree on how the ethno-national groups act and interact. Therefore, given the unavoidable need for coexistence between the groups and their members, the question of social cooperation and ethno-national group relations is central. While not excluding the interaction of groups with individuals and with the relevant states, for the purpose of social stability in places of ethno-national conflicts, the primary relations that need to be worked out are also those between the groups. The idea of collective equality acknowledges the unique position of ethnonational groups in sites of ethno-national conflict by recognizing the groups as actors in an additional level of ethno-national justice and as principal participants on both domestic and international levels. Following the basic Rawlsian concept of justice as fairness, collective equality adopts and applies the idea of fair social cooperation to this additional level of justice. If social cooperation also applies to relations between ethno-national groups, it follows that these groups are not only bearers of rights and duties toward individuals and states, but also bearers of rights and duties toward one another, that is, toward the other ethno-national groups with which they are found in conflict. 2

This mixture or hybridity of internal and international dimensions cannot be eliminated, either because the means to achieve it are impermissible (see Section 3.3, the unattainability of separation), or because it is practically unlikely to be attained (i.e., forgetting or departing from a national myth about the people’s homeland).

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7.4.2  Mutual Respect and “Proper Patriotism” While the state(s) involved ought to respect and promote the national groups’ equal right to self-determination (further explained in Section 7.5), the responsibility is not the state(s)’ alone. By portraying that a fair system of social cooperation should replace the conflict and presumably the unfair relations that led to it, collective equality assumes ethno-national groups to be equals. The most fundamental implication of their equality is the requirement of mutual respect and of “proper patriotism.” Several explanations can be given for the requirement of mutual respect. Borrowing Rawls’ argumentation, the fundamental interests of peoples include the demand for respect, involving a distinct interest in self-respect. In specifying these fundamental interests, Rawls observes: Yet a further interest is also significant: applied to peoples, it falls under what Rousseau calls amour propre. This interest is a people’s proper self-respect of themselves as a people, resting on their common awareness of their trials during their history and of their culture with its accomplishments. Altogether distinct from their self-concern for their security and the safety of their territory, this interest shows itself in a people’s insisting on receiving from other peoples a proper respect and recognition of their equality. (Rawls, 2001b, 34–35)

Recognition of social groups and the lack thereof as a trigger for social struggle has been the subject of many social and philosophical accounts and has become widely accepted as a group’s fundamental interest (Taylor, 1992; Honneth, 1996; Fraser, 2018). Assuming self-respect as a fundamental interest of all ethno-national groups means that all parties in an ethno-national conflict expect to receive it from the others and should be willing to grant it in return for receiving it. Thus, what distinguishes just peoples, according to Rawls, “is that just peoples are fully prepared to grant the very same proper respect and recognition to other peoples as equals” (Rawls, 2001b, 34–35). When Rawls refers to equality among peoples, he does not mean absolute equality: “Their equality doesn’t mean, however, that inequalities of certain kinds are not agreed to in various cooperative institutions among peoples, such as the United Nations, ideally conceived. This recognition of inequalities, rather, parallels citizens’ accepting functional social and economic inequalities in their liberal society” (Rawls, 2001b, 35). Collective equality regards reciprocity and mutual respect as central features of ethno-national justice and essential elements of both international and domestic just societies. Maintaining mutual respect among peoples is of such importance according to Rawls that he even affords it priority over relapses

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from the ideal of liberal justice for the domestic society, since lapsing into contempt or resentment can only cause damage. He concludes that maintaining mutual respect among the “Society of Peoples” constitutes an essential part of the basic structure and political climate of that society (Rawls, 2001b, 61–62). This is manifested, for example, in his suggestion of not offering incentives to peoples to become more liberal, since all peoples, including nonliberal ones, should have the opportunity to decide their own future (Rawls, 2001b, 84–85). Rawls suggests that supranational institutions and other liberal states hold a neutral attitude toward nonliberal peoples; an attitude that allows one to withhold judgment so as not to jeopardize the self-respect of other peoples. The criteria of reciprocity and mutual respect also project on the basic notion of ethno-national patriotism – in the sense of the group’s pride and honor (see also Bar-Tal, 2007a, 37). The concept of collective equality restricts ethno-national patriotism to a proper patriotism. Again, borrowing from Rawls, proper patriotism is “a certain proper pride and sense of honor.” A people “may be proud of their history and achievements,” Rawls asserts, but only “as a proper patriotism allows, whose limits are given by the concepts of ‘due respect’ and ‘mutual respect’” (Rawls, 2001b, 34–35, 44–45). Rawls’ proper patriotism means that people are expected to feel pride in their history and achievements, but are obliged to shape their patriotism with due respect for what others are asking for, consistent with affording equality to all peoples. In short, the obligation to respect collective equality and adopt a proper version of patriotism that allows for mutual due respect is incumbent on all ethnonational collectives – both majorities and minorities. This point has crucial implications within the context of peace processes, since it is these intergroup relations that eventually (re)define the constitutional character of the state(s) and its basic structure. I emphasize this point, because it is usually overlooked within the multicultural tradition and common accounts of minority rights. This expectation of mutual respect and proper patriotism might sound nice, or even naïve. Naturally, a major challenge is to translate these ideas of mutual respect and proper patriotism to common real social contexts of blatantly unequal intergroup relations, often marked by practices of coercive control. Hence, it should be noted that these ideas about mutual respect and proper patriotism resonate with real experience – the Northern Ireland peace process being a prime example. The GFA’s opening statement, the Declaration of Support made by the participants in the multiparty negotiations, pronounces the equal recognition of the two national narratives: “We acknowledge the substantial differences between our continuing, and equal legitimate, political aspirations. However, we will endeavor to strive in every practical way toward reconciliation and rapprochement within the framework of democratic and

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agreed arrangements” (GFA, Article 5, Declaration of Support, emphasis added). Accordingly, the agreement provides that the power of the sovereign government “shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities” (GFA, Article 1(v), Constitutional Issues, emphasis added). While the obligation of individual equality is now universally recognized, the requirement for the two communities to have “parity of esteem” was an innovative concept in the Northern Ireland peace process. These GFA articles provide for a meaningful, formal declaration of the equal status and equal political legitimacy of the two national communities, both within the newly reformed Northern Irish state and its institutions, but also on behalf of the two communities toward each other. However, as will be further demonstrated in Chapter 8, this declaration did not remain a formal declaration but was codified in other arrangements agreed upon in the GFA. Equality and mutual respect are therefore regarded as basic characteristics of collective equality, essential to the support of a valid agreement and stable cooperation between different and competing ethno-national groups. 7.4.3  Self-Determination: Independence as Interdependence Ethno-national groups’ positions in conflicts are generally articulated and formulated around conflicting demands for self-determination, as shown in Chapter 2. The common understanding of self-determination imagines it as political independence, as Tamir illustrates: “The right to national selfdetermination can be fully realized only if the national group is recognized by both members and non-members as an autonomous source of human action and creativity, and if this recognition is followed by political arrangements enabling members of the nation to develop their national life with as little external interference as possible” (Tamir, 1993, 74, emphasis added). The notion of self-determination built on the principle of all member states’ sovereign equality, enshrined in the UN Charter, equates it with “sovereign independence, where the self-determining entity claims a right of non-intervention and noninterference” (Young, 2004, 176–177). As a legal right, self-determination is understood as a “political entity’s right to design its political system according to its own preferences and to be to that extent independent from other states” (Peters, 2009, 516 fn 8). While the prevailing interpretation recognizes the role of relations and interactions between states, it nevertheless tends to portray a picture of self-determination as being achieved independently from others.

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Acknowledging the impracticality of granting a nation-state to all the world’s national groups has led scholars to advocate for more modest models such as substatist autonomous regimes (also referred to as internal self-determination) as alternatives to separate independent states: “Since not all nations can attain this degree of national autonomy, and since restricting the implementation of this right only to nations able to establish one would lead to grave inequalities, other solutions must be sought” (Tamir, 1993, 74; see also Gans, 2008, 53–68). In line with these suggestions but also diverting from them, collective equality suggests approaching the challenge posed by the impracticality of independent states for all the world’s nations somewhat differently, focusing instead on the centrality of equal relations between groups. Since relations between the groups are not only unavoidable but also play a substantial part in shaping a people’s demand for self-determination, it is better to think of self-determination not as “free-standing” independence achieved in isolation, but rather as interdependence being achieved via interaction and cooperation with others (Reindal, 1999; see also Nedelsky, 2011). Indeed, consideration of the facts of proximity and ongoing relations between ethno-national groups, both during conflict and also during hopefully peaceful coexistence, suggests the need for a shift in the common understanding of self-determination. Emphasizing the centrality of intergroup relations as a constitutive aspect of independence, political theorist Iris Marion Young argues for another concept of self-determination of peoples: to recapture independence as interdependence and to redefine selfdetermination as nondomination. Drawing on Philip Pettit’s theory of freedom as nondomination, Young argues that “peoples can be self-determining only if the relations in which they stand to others are non-dominating” (Young, 2004, 177; see also Pettit, 1996; 1997; 2010; Mégret, 2016). The prevailing concept of sovereignty that refers to states as equals can be viewed as aligned with and compatible with the concept of nondomination. While the prevailing legal concepts emphasize specific legal consequences such as legal independence, territorial integrity, and nonintervention, the collective equality account of self-determination offers to endorse selfdetermination as political interdependence achieved via interaction and cooperation (Young, 2004, 176–177, 187; Du Toit, 2018); that is, collective equality emphasizes interdependency among the political actors and the centrality of relationships among them as the constitutive element of their equality. 7.4.4  Relational Equality: From Institutional Oppression to Nondomination Collective equality is based on the idea of equality of ethno-national collectives. However, equality can mean many different things. As argued in

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Chapter 4 and already implied from the understanding of self-determination that has just been presented, the understanding of the nature of equality within collective equality is relational. Given the context of ethno-national conflicts as a fight for and against domination, the relevant point of equality is indeed to eliminate social domination and to base the relationships among the groups and their members on being relations between equal-status collectivities and persons. Recalling how Elizabeth Anderson powerfully phrases it, “the proper negative aim of egalitarian justice is … to end oppression, which by definition is socially imposed. Its proper positive aim is … to create a community in which people stand in relations of equality to others” (Anderson, 1999, 288–289). While redistribution plays a significant role in any account of equality, and situations of ethno-national conflict are no exception, at the core of collective equality is equality not as a distributive attribute, but rather as relational. Thus, the ideal revolves around national groups and their members as positioned and acting as peers. As will be further developed later, collective equality includes redistribution, but as only one of its dimensions. Article 19 of the African Charter on Human and Peoples’ Rights makes the same requirement for peoples’ equality and nondomination: “All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.” The value of nondomination is not new. It has been equated with freedom within the long republican tradition and as being opposed to relationships marked by domination “in which one party enjoys a degree of alien control over another” (Pettit, 2010, 73). Control, an interference, actual or potential, with one’s choices, can take many forms, including obstruction, coercion, deception, manipulation, and invigilation (Pettit, 2010, 74). However, Pettit clarifies that in contrast to forms of alien control (i.e., domination), control can also take the form of “reasoned control” in which parties consult with one another about what to do, leaving them with the freedom of choice and the decision of how to act. While domination leaves parties without a reasoned power of choice and undermines respect, nondominating relations allow and support the fundamental interest of self-respect for all the involved parties. Domination and oppression of one ethno-national group over another were shown at the start of this book to be among the common background features of violent ethno-national conflicts. Within the realities of violent conflicts, it is not uncommon to find liberation struggles that did not end oppression but merely switched roles: The previously oppressed became the new oppressor (Wolff, 2006, 26, 72). Whether the switch in roles is indeed common, it nevertheless exists for dominating groups as a deep fear. Hence, it seems correct that the main point of equality in such situations would target group-based social

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and political hierarchies and aspire to position the related groups as equals; that is, in nondominant relations (Rawls, 2001b, 34–35, 44–45, 61–62; Young, 2005; Wimmer, 2008b, 1037–1038; Pettit, 2010; Schemmel, 2012; Elford, 2017). Equal relations, based on the notions of nondomination and interdependence, are therefore the only alternative to domination and ongoing conflict, in situations of ethno-national conflicts and deeply divided places. Placing groups on an equal footing should not be understood as an assertion that only political and institutional models of a certain type – those that maintain and accommodate the cohesive character of the groups – are permissible. However, the institutions within which the relations between the groups take place play a crucial role, since they shape the framework in which all participate and engage in ongoing negotiations (Young, 2004, 177). It is those institutions that can and should provide a context of nondomination (Young, 2004, 187; 2005) Any political structure that one state, or two or more separate states, adopts within its political institutions, or within a hybrid internal/external configuration, should ensure participation and ongoing negotiations in the context of nondomination. In parallel to Rawls’ basic ideas of citizens and of “peoples” (who have states) as free and equal (Rawls, 2001a, 5; 2001b, 33), collective equality’s underlying premise is that ethno-national groups are free and equal to each other. 7.4.5  The Four Dimensions of Collective Equality Understanding what collective equality actually means and how it can be applied and used in practice requires a further investigation into what may promote it, or alternatively, into whether and how collective equality can be measured. Building on a variety of sources (self-determination law, equality and nondiscrimination, political justice, theories of ethnic conflicts, powersharing, and peacebuilding practice), collective equality can be measured along four dimensions of justice: three substantive and one procedural. The three substantive dimensions roughly follow Nancy Fraser’s theory of social justice (Fraser, 2004; 2008a). The first is redistribution: an economic dimension encompassing the wide range of natural, social, and economic resources including land, housing, and planning, employment in public and private sectors, education, and so on. The second is recognition: a cultural dimension that includes language, national aspirations, and the obligation of mutual respect, as well as relating to the discourse that shapes the status order in society. The third substantive dimension is representation: a political dimension that centers on issues of participation and allocation of political powers and refers to the relative position of the parties within political institutions. As the process

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itself is a central element of collective equality, I include a procedural dimension that relates to equality in negotiations; that is, the different sides being equals within peace negotiations themselves. In that sense, the procedural dimension correlates with Fraser’s view of justice as participatory parity with a double quality: on the one hand, it is an outcome notion, which specifies a substantive principle of justice by which the social arrangements are measured; on the other hand, it serves as a process-oriented notion that specifies a procedural standard by which the outcome’s democratic legitimacy is evaluated (Fraser, 2008a, 290). As negotiations precede agreements, the outcome’s appropriateness – including the outcome’s constitutional agreements – calls for equal participation and consent between free and equal parties. While these four dimensions are helpful, they nevertheless should be understood in light of the core of collective equality: the quality of the relations between the ethno-national groups, conceptualized through nondomination and interdependence. Accordingly, collective equality should not be understood as calling for the adoption of formal equality standards such as requiring identical numbers of ministers or equal economic shares, and not even as equivalent to the familiar criteria of proportionality. Equality here is understood as substantive and must be tailored to each place with its unique circumstances, cultural and political traditions, history, economic conditions, and so forth, with the aim of promoting equal status and advancing parity between the groups, both during negotiations and afterward, both objectively and subjectively. The specific policies and actions that are called for by the concept of collective equality, and particularly the scheme of redistribution policies, will be greatly affected by the political structure in each case. Whether, for example, the political structure takes the form of one state with all powers found in the center, or one state divided into substate federal units or of two (or more) separate states, with or without common institutions, will have significant implications. Further clarifications of the four dimensions of collective equality are offered in Chapter 8, where I look into the practical manifestations of collective equality and its four dimensions in the experience of Bosnia and Herzegovina, Northern Ireland, and Cyprus (the Israel– Palestine case is not included here, as the notion of political equality and the model of power-sharing have never been included in official negotiations and agreements relating to this conflict). 7.4.6  Collective Equality as a Principle of Transition To consider how international law and the conception of justice that underlie it can better support ethno-national peacemaking, we need to engage in two

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interrelated examinations. The first asks which conception(s) of justice are attuned to the social conditions existing in places of conflict. The second asks how to work from the existing realities of violent conflict and oppression to a dramatically different social and political condition, characterized by stable and fair social cooperation. In the previous chapters, I have touched, mostly indirectly, on the historical experience of modern political transitions – the experiences of nationbuilding and self-determination. According to Andreas Wimmer, it was not unusual that such nation-building processes were accompanied by “forced assimilation or the physical expulsion of those who have suddenly become ‘ethnic minorities’ and are thus perceived as politically unreliable; the conquest of territories inhabited by ‘one’s own people’; encouraging the return migration of dispersed co-nationals living outside the national home.” These policies and actions have been employed, Wimmer notes, in all the waves of nation-state formation that the modern world has seen so far. What we nowadays call ethnic cleansing or ethnocide, and observe with disgust in the ever “troublesome Balkans” or in “tribalistic Africa,” have in fact been constants of the European history of nation-building and state formation, from the expulsion of Gypsies under Henry VIII or of Muslims and Jews under Fernando and Isabella to Ptolemy’s night in France or the “people’s exchange,” as it was euphemistically called, after the Treaty of Lausanne between Turkey and Greece. (Wimmer, 2002, 3–4)

Indeed, many of these histories have disappeared from the popular consciousness in the now established nation-states, though they may still be remembered by the ethnic descendants of those who were expelled. But these practices of forced assimilation and population transfers do not offer a viable course of action and are condemned as morally impermissible and illegal. New prescriptions for political transitions adopted a liberal premise, discussed within various scholarly strands, among them liberal peacebuilding, development, and transitional justice. Unlike previous waves of nation-state formation that were characterized by local sociopolitical processes, driven primarily by local mass mobilization, unconstrained by international legal norms, the new – liberal peace–era – transitions, particularly since the 1990s, have been undertaken in a totally different normative and institutional environment. The dominant liberal peacebuilding theory assumed that sustainable peace is achieved when norms and institutions uphold liberal democracy, a free-market economy, individual human rights, and the rule of law (De Coning, 2018a, 302; Donais, 2012, 5). The accompanying theory of change holds that in places where such norms and institutions have not yet

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developed, their development can be assisted through international peacebuilding and development interventions (Lidén, 2009, 617). Transitional justice shares key assumptions with the liberal peacebuilding consensus; that is, that democracy, free markets, and the rule of law are indispensable elements of durable peace (Sriram, 2007; Park, 2008). However, contemporary accounts maintain that the era of liberal idealism and interventionism is ebbing (De Coning, 2018a, 301). Although a critique of the liberal peacebuilding project with its externally driven peacemaking and state-building agenda, and a shift away from it, already began in the mid-1990s, the US-led interventions in Iraq and Afghanistan and their apparent failures have accelerated the shift and refocused on the central role of local people as agents for peace (Paffenholz, 2015; see also Campbell, 2011; Wilkens, 2016; De Coning, 2018a). Following the mounting critiques of internationally driven peace interventions, in April 2016 the UN Security Council and General Assembly adopted identical resolutions on “sustaining peace.” These resolutions reflect how peace and peacemaking are understood by scholars and actors in the international community. The updated approach views peace as an all-encompassing social transformation, which is an inherently political process under the primary responsibility of national authorities, and requires a comprehensive approach to peacebuilding and transitional justice. In other words, contemporary understandings of political transitions refocus on the role of local actors and acknowledge that peace and reconciliation need much more than a proper institutional framework. While the refocusing of the sustaining peace approach on local agency is indeed welcomed, it contains a fundamental tension – between the local and the international, particularly since local politics in deeply divided places are often defined in ethnic rather than civic terms. Since the international obligations to human rights are maintained and a commitment to uphold them in peacebuilding and transitional justice is emphasized also in the sustaining peace approach, the tension between ethnic and liberal understandings of politics and justice is also maintained. The crucial question is therefore whether and how convergence can be made between these two legs of the sustaining peace approach, and whether and how local political choices, preferences, and priorities can be aligned with international norms. True, this is not a new challenge, but with the new emphasis on national authorities as drivers of peacebuilding, additional normative guidelines that enable the accommodation of both are needed. The principle of collective equality can hopefully function as such a guideline in the long transitory process from violent conflict toward sustainable peace. As we have seen, ethno-nationalism is the dominant paradigm that drives most contemporary conflicts, but the

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clash with liberal obligations imposes major constraints on their peaceful resolution. By recognizing ethno-national groups as legal and legitimate actors, collective equality offers a principled way to accommodate ethno-nationalism within a contemporary normative framework. It may inform a more coherent choice of policies that are in line with both ethnic politics and human rights, through the lenses of promoting equality between the rival groups and their members in economic, social, cultural, and political dimensions. It can also inform constitutional design and institutional reforms that are more adequate to promoting political inclusion and equal participation in the specific context of deeply divided places. The long road to peace in Northern Ireland, which was outlined in Chapter 5 and will be further evaluated in Chapter 8, serves as an illuminating example for an actual process within which policies have fostered collective equality between conflicting ethno-national groups and in turn have promoted more favorable conditions for sustainable peace. As will be elaborated in Chapter 8, empirical research findings support a correlation between collective equality and peace. First, as sharp economic, cultural, and political inequalities have been found to raise the likelihood of violent conflict, they support the argument that promoting equality between the groups can reduce the risk. Second, a central place for equality in peace agreements has been found to correlate with more durable agreements. Third, the three peace processes that are compared in this book – in Northern Ireland, Bosnia and Herzegovina, and Cyprus – demonstrate the centrality of equality between the rival groups as an essential condition for agreement between them. As the prominent view moves to understanding peace as comprehensive social transformation – not reduced to implementing a peace agreement, or externally setting up democratic institutions – collective equality provides a guiding benchmark for the transitional process. It directs peace efforts toward promoting equality and cultivating interdependent relations and nondomination among the groups as a central step in promoting equality and political inclusion at large. Notably, adopting collective equality as the relevant criterion means adopting a benchmark for positive progression, assumed to be achieved gradually. It should not be understood in dichotomic terms, but offers flexibility in the different ways and models with which to obtain it within an ongoing process of transformation. 7.4.7  Collective Equality and Stability In the long run, and if we envisage a political stability that is not based on coercive control (Lustick, 1979) or that is easily paralyzed due to constant power struggles between ethno-national sects – in other words, if we aim for

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stability that is not merely modus vivendi but rather based on overlapping consensus (Rawls, 2001a, part V) – we should aim to create some kind of political community that encompasses all the relevant groups and individuals that reside in a territory. A territorial unit may include a state, which means that some kind of unity among all the citizens of that state is required; such a territory may include a region of a state, and then require some kind of unity among all of the region’s residents; or it may include a union of several states, which will then require some kind of unity among all the citizens or residents of all the member states. Notably, the leading approaches to democratization – an indispensable part of the liberal peace agenda – seem to have neglected the social background conditions that are needed to support liberal democracy and whether these conditions exist in the places that democratize. This neglect may imply two theoretical assumptions: that those conditions are generally present in these places; or that the establishment of democratic institutions, mainly democratic elections, and rule-of law-institutions are the required conditions. However, few contemporary writers restate the need for some kind of unity among the citizens as vital to the successful implementation of liberal democratic institutions (Beetham, 1994, 169; Miller, 1995a, 90; 2017; Mouffe, 1997; Banting & Kymlicka, 2017) or for achieving political inclusion and sustainable peace (Wimmer, 2013a, 179; 2018b). Saying that some kind of unity among the political unit’s members is needed does not imply that complete cultural homogeneity is required or that the groups’ original ethno-national identity should be or is expected to be abandoned. Indeed, collective equality assumes that the ethno-national identity of the groups is unlikely to disappear. However, it also assumes that an additional, supranational identity can be cultivated. Cases such as those of Canada, Belgium, Switzerland, and the EU suggest that belonging to multiple political communities – including local, federal, state, as well as multistate political communities – is possible. I therefore argue that what is needed in deeply divided places, beyond and in parallel to the process of promoting collective equality among national groups, is promoting an additional, common identity, “which aspire[s] to draw in everyone who inhabits a particular territory”; that is, to embark on a process of ethnic boundary expansion through nation-building at a higher level (Wimmer, 2008b, 1031–1033). This argument is built on the observation that national identity is constructed and can be developed consciously (Miller, 1995a, 92; 2000; Wimmer, 2008a; 2008b; 2013b; 2018a; Brubaker, 2009; Kymlicka, 2011a). The argument also assumes that membership in more than one political community is not only possible but also common in our times (Bauböck, 2007; 2019; Maas, 2013; 2017). Within the political practices of peace movements, such possibilities are already in

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use. In recent years, certain peace activists in Israel have started to adopt new strategies to deal with the obstacles that ethnic national identity imposes on peacebuilding in the region. Instead of approaching national solidarity as an “us or them” binary, they actively endorse and support multiple solidarities, combining their “traditional” national identity defined by Zionism with new identities based on geographical region or another common denominator that connects individuals across the ethno-national divide (Wimmer, 2008a, 1041–1043). Thus, a range of complementary solidarities, among which the most commonly used is the emphasis on local communities (Jerusalem-AlQuds; Galil for All; Haifa) or pan-regional (“Eretz Yisrael/Palestine”), have been adopted by activists, alongside traditional ethno-national (Jewish-Israeli, Arab-Palestinian) or civic solidarities (Israeli, Palestinian). This strategy presents a practical approach to building new communal identities, in parallel to the continuations of ethno-national identities that can soften their exclusionary aspects. It should be starkly clear that cultivating such new and inclusive identities cannot occur overnight with the mere signing of a peace agreement or by conducting democratic elections, and probably not even over a decade or two. If this conclusion is valid, then it reinforces the important role of the transitional process itself due to the long period it typically lasts and its decisive influence on obtaining long-term stability. Henceforth, we should not be less interested in the formulation of adequate guidelines and recommended courses of action that support more successful transitions. 7.5  COLLECTIVE EQUALITY AND HUMAN RIGHTS

Collective equality – recognizing the equal collective rights of national groups – does not imply a new regime under which individual rights are subject to collective rights or transgressed by political exigencies. As with liberal multiculturalism, minority rights, and indigenous peoples’ rights, collective equality comes in addition to, not instead of, the commitment to the protection of individual rights, with the purpose of effectively promoting the inclusion of all citizens in deeply divided places. Nevertheless, conflicts between legitimate collective and individual interests are likely to emerge, and compromises will be needed in the best scenarios. While tensions between individual and collective rights are not new and balancing them is already practiced with regard to indigenous peoples (e.g., Sandra Lovelace v. Canada, CCPR/ C/13/D/24/1977; Tiina Sanila-Aikio v. Finland, HRC, February 1, 2019, Comm No. 2668/2015), this has not yet been applied to national groups (minorities and majorities) or in the context of entire states.

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Indeed, collective measures, even those that follow the guidelines of collective equality, cannot reasonably be expected to secure absolute equality among all members of the political entity, as is the case with liberal nationalism (see Tamir, 1993, 144). Some inherent advantages for members of ethno-national collectives, compared to nonmembers, should be expected to remain. Since we are familiar with such tensions between collective and individual rights from minority rights and indigenous peoples’ rights discussions, I will first try to locate what the unique problem raised by collective equality is, and then suggest a principled way to approach it. A legal analysis of how tensions between collective equality and human rights can be settled in law will be further developed in Chapter 9. 7.5.1  The Problem with Collective Equality Violating the fundamental obligation to equal individual rights of all citizens is often regarded as the most troubling aspect of approving special status and rights for ethno-national groups. Unlike deviating from the obligation to the neutrality of the state suggested by Tamir in Liberal Nationalism (1993), which allegedly gives way to some functional preferences in the political process, a state’s failure to provide for equal rights is regarded as a violation of the most fundamental liberal values. According to Rawls’ first principle of justice, “Each person has the same indefeasible claim to a fully adequate scheme of equal basic liberties, which scheme is compatible with the same scheme of liberties for all” (Rawls, 2001a, 42). Rawls emphasizes the special importance of securing equal political liberties, by adding a proviso that “the equal political liberties, and only these liberties, are to be guaranteed their fair value … This guarantee means that the worth of the political liberties to all citizens, whatever their economic or social position, must be sufficiency equal in the sense that all have a fair opportunity to hold public office and to affect the outcome of elections, and the like” (Rawls, 2001a, 148–150). As demonstrated in Chapter 6, power-sharing arrangements aimed at accommodating ethnonational groups within a state’s structures may result in the unequal allocation of rights, and particularly of political liberties, between members and nonmembers. Can it be accepted by liberal values and, if not, what can be a legitimate alternative? Liberal multiculturalism and minority rights literature has challenged the liberal requirement of strict or formal equality and individual rights, and argued for allocating different rights to discriminated-against minorities for the sake of providing genuine equality between citizens (Kymlicka, 1995; 2001; Henrard, 2000; Patten, 2014). In reality, it is argued, the true liberal value of

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protecting equal individual rights for all citizens is better served by prescribing differential treatment of minorities, thereby deviating from a formal equality in favor of a substantial one. This liberal justification for minority rights is convincing and has succeeded in receiving wide support and acknowledgment in international law instruments and human rights adjudication, and in that sense it may be applicable to ethno-national groups who aim to secure their collective rights. Nevertheless, there are some differences between collective equality and minority rights that should be considered before the minority rights justification can be adopted to justify also the concept of collective equality. The major difference between collective equality and minority group rights is that under collective equality both national minorities and national majorities are recognized and can formally be accorded special status within the publicpolitical sphere. Since collective equality applies to discriminated-against minority groups and to majorities, justice-type argumentation that relies on minorities’ disadvantaged position does not apply. “External protections,” Kymlicka clarifies, “are legitimate only in so far as they promote equality between the groups, by rectifying disadvantages or vulnerabilities suffered by the members of a particular group” (1995, 152). Indeed, some power-sharing measures are triggered by the need to correct past injustices. An example of this is the temporary quota provisions aimed at enhancing the participation of Northern Irish Catholics in the police force. However, the need to correct past injustices is not sufficient to justify permanent constitutional arrangements that address both the minority and the majority groups and are based on ethno-national criteria. Thus, while justice-based rationales for differential minority rights may apply temporarily to the national minority, they may not hold permanently after the minority gains equal status, and they do not apply to the ethno-national majority. Theoretically, then, justifications for minority rights lose their force with regard to both the historical majority and the historical minority. If under a collective equality regime all national groups gain the status of a “national majority,” then the most significant potential problem of external discrimination centers on members of nonnational groups and individuals with no group affiliation. This explains why the Sejdić and Finci v. Bosnia and Herzegovina case reviewed in Chapter 6 illustrates the most severe problem, in liberal terms, caused by power-sharing arrangements. To address this problem, I will use the distinction I made earlier in this chapter between collective equality as a goal and an ideal principle, and collective equality as a principle of transitional justice. At the risk of stating the obvious, I will nevertheless say that while in both understandings (ideal and transitional) an essential recognition of the right to national self-determination serves as a constitutional building block, the weight given in each to individual rights requirements is different.

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7.5.2  Balancing Individual Rights and Collective Equality In their accounts, Yael Tamir and Chaim Gans distinguish between a state’s legitimate immigration policies and its obligation to respect its citizens’ full equality. Tamir notes: “liberal democratic principles dictate that, if a majority of its citizens so wishes, a national entity is justified in retaining its national character. On these grounds, a national entity might be seen as entitled to restrict immigration in order to preserve the existence of a viable majority” (Tamir, 1993, 160; see also Gans, 2008, chs. 4 and 5). But, as Tamir makes very clear, “restrictions placed on the entry of future members differ significantly from injustices inflicted on present members, which can never be justified.” She therefore restates the obligation of the liberal nation-state to accord equal individual rights to all its citizens and even to encourage nonnationals’ full participation in the political sphere: Once individuals have formally joined a political community they should be treated as equals. Nationality should not be the basis for distributing goods, rights, or services. The political culture should be open to all and members of national minorities ought to be encouraged to participate and integrate into the political sphere. It is true that entering the political culture requires members of minorities to join a political process reflecting a national culture not their own. Their difficulties on this count should be recognized, and it would be unjustified to use them for promoting assimilation into the national culture. (Tamir, 1993, 161)

We can see that even views endorsing nationalism as a legitimate and essential human interest have declared the obligation to provide equal citizenship rights and especially equality of political rights. I concur with this point: Banning or restricting some citizens from holding public office cannot be settled with liberal principles. While the principle of collective equality does not inherently violate the obligation to provide for all citizens’ equal rights, some models that are being used do so in practice. Democratic consociational arrangements, particularly those classified as corporate consociations, such as Bosnia and Herzegovina’s constitutional arrangements and those adopted in the original Cypriot constitution, are presumably doing exactly that – entangling the right to hold public office, or at least some offices, with ethno-national affiliation. How can such arrangements be settled with liberalism and human rights, and what implications does this have for the legitimacy of collective equality? My answer is that as part of an ideal theory, collective equality cannot justify institutional arrangements that do not secure equal rights for all citizens, especially with regard to political participation and the holding of public

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offices. Therefore, corporate consociational arrangements that exclude some of the citizenry cannot be endorsed by a liberal concept of collective equality. Indeed, collective equality is not equivalent to power-sharing, and does not justify any power-sharing arrangements irrespective of their adherence to justice requirements. While collective equality represents a general principle, power-sharing represents concrete institutional models, and the relations between collective equality and power-sharing should be understood as the relations between principle and rules (Alexy, 2002, 47–48; Benhabib, 2016, 118–119). Using this conceptualization of principles and rules, concrete power-sharing arrangements represent the concrete rules that reflect the local choice – in both time and place – for implementing collective equality, if they promote or maintain equal self-determination among ethno-national groups. In the same vein, concrete power-sharing arrangements that do not promote a legitimate collective interest but serve to promote self-interested claims to power cannot be regarded as concretely manifesting the general principle, and their violation of human rights cannot be regarded as justified. However, ethno-national conflicts and deeply divided places present extremely challenging circumstances, far from the ideal of well-ordered society imagined by the theories, in which hope may be scarce and often no beginning seems possible (cf. Du Toit, 2018), let alone achieving the ideals of freedom and equality for all. The task of collective equality as a concept of transitional justice should be understood as equivalent to the role of nonideal theory – providing guidelines for how the long-term goal of liberal justice “might be achieved, or worked toward, usually in gradual steps” (Rawls, 2001b, 89–90). I have already suggested that promoting collective equality as part of peacebuilding is desirable, as it is both just and more likely to support durable peace. But what are the limits, and which policies and actions should be regarded as morally impermissible under a liberal account of collective equality? In principle, in such nonideal conditions as war-torn countries and deeply divided places, it should be expected that relapses from the demands of ideal justice will be required. Yet, deviating from strict prohibitions set by liberal theories, or trespassing on citizens’ liberties, should be undertaken with caution and is justified if done according to a liberal political conception and for the sake of liberty itself. Such deviations should not be permitted for what could be regarded as illegitimate interests such as the mere gaining of economic wealth, acquiring natural resources, or winning power. Indeed, the ECtHR decisions regarding Bosnia and Herzegovina’s cases seem to reflect a suspicion that Bosnia and Herzegovina’s constitution grants the three ethnonational groups special political powers only in the service of illegitimate interests, and merely because of unjustified submission to force. However, if

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the view that I offer here will be considered, then Bosnia and Herzegovina’s arrangements should be viewed differently, as rooted in protecting the justified interests of the groups rather than arrangements set for the sake of gaining power, wealth, or other nonlegitimate advantages. Furthermore, an assessment of such policies’ and actions’ legitimacy should also consider that collective equality and sustainable peace are not goals that can be reached in a few years. In retuning our expectations, we should consider that bringing about needed social transformation and building mutual trust in divided societies are goals that need to be worked toward in gradual steps, and for a long period of time (cf. Wimmer’s account of nation-building, 2018a). In Northern Ireland, for example, 15 years after the GFA the situation was still considered highly fragile and requiring stability: “There may be a time for substantial changes, but that time is not now” (McCrudden et al., 2016, 54). However, the flaws of the particular arrangements agreed to by the parties to a conflict should not be assessed and measured against an imaginary ideal of neutral state and civic nationalism, which posits an unrealistic utopia, but against a realistic alternative – majoritarian democracy as it actually functions in places of ethno-national conflict. In such deeply divided places, in which the ethnonational majority perceive their state as “their own” and thus as superior, equality between the state’s citizens is not ensured. It is worth noting that while a nonformal preference for one national group may pass the liberal test of neutrality while formal preference will not, in both cases the majority’s preference may inflict similar harm on the minority. Hence, in such situations equal recognition of the ethno-national groups should be justified and even preferred as a structural approach to eradicating discrimination and facilitating greater political inclusion of larger segments of the population. 7.6 CONCLUSION

Collective equality conceives of a justice suitable for places riven by ethnonational conflict and provides a new context for evaluating the legitimacy and legality of policies and courses of action that are taken in such places. Acknowledging ethno-national groups’ unique position in sites of conflict and positioning them as equal participants in social cooperation best captures the new approach offered by collective equality vis-à-vis existing accounts of minority rights and how the right to self-determination is commonly understood. By adopting the idea of social cooperation as applicable to relations between ethno-national groups in addition to relations between individuals and states, we can address two insufficiencies in existing accounts of group rights – the place and role of majorities, and the reciprocal obligations of

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both minorities and majorities by positioning them as equals in principle. Relations of equality and nondomination are the only reasonable possibility that can replace the struggle for and against domination that characterizes intergroup conflicts. Designing the basic structure(s) to accommodate rival ethno-national groups’ insecurities and to provide an institutional context in which the groups and their members can participate as peers provides an adequate paradigm of a fair system of social cooperation in conflictual social contexts. Collective equality provides for a more reasonable justice conception than that offered by liberal neutrality or liberal multiculturalism in regard to deeply divided places. In such places, substituting the obligation for state neutrality with the demand for equality between national groups has a better chance of advancing the liberal goal of equality given the prevalent conditions of domination and discrimination. For convenience, there follows a brief sketch of the central features of the concept. First, collective equality is based on a normative recognition of ethnonational collectives’ legitimate claim for self-determination. Second, following from this is a formal recognition of both national minorities and national majorities/nondominant and dominant groups as equals. Third, collective equality supplements the traditional liberal approach with a third level of justice in which the participants – the ethno-national collectives – engage in “a fair system of social cooperation over time from one generation to the next” (Rawls, 2001a, 4). For social stability in deeply divided places, primary relations that need to be worked out are also those between groups, which can transgress state borders. By adopting an idea of social cooperation as also applying to relations between ethno-national groups, these groups are regarded not only as bearers of rights and duties toward individuals and states, but also as participating in social cooperation between them. Fourth, collective equality encompasses the requirement of mutual respect; that is, the ethno-national collectives owe due respect to each other. Fifth, collective equality adopts a relational understanding of equality and self-determination and focuses on institutionalizing equal relations between groups, which will replace relations marked by domination, coercion, and discrimination. Self-determination is perceived as relational and is conceptualized by interdependence and nondomination, rather than being vested in isolated independence and nonintervention. These relations are to be regulated by institutions and ongoing negotiations between the groups. Sixth, the restructuring of social and political relations between former adversaries and within the whole disputed territory entails attending to four dimensions of equality: a procedural commitment to equality in negotiations and the three substantive dimensions of redistribution, representation, and

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recognition. Understood as such, collective equality and methods used for its promotion bear an inherent value as institutional mechanisms promoting the right to self-determination and correcting systematic inequalities prevalent in deeply divided places. Seventh, collective equality occupies two theoretical roles: as a goal and as a nonideal or transitional concept. As a nonideal concept, it provides guidelines in choosing policies and courses of action that are morally permissible, politically possible, and likely to be effective in the long process of transformation from violent conflict to stable relations between the rival groups. As such processes are likely to require some compromises of liberal principles, collective equality can help in distinguishing between legitimate and nonlegitimate policies and actions, and has the potential to narrow the normative gap between international standards and local/national choices. As part of an ideal theory, collective equality cannot be promoted and secured by the use of institutional arrangements that do not accord equal individual rights to all, especially with regard to political participation and the holding of public offices. When presenting collective equality to different audiences, one of the repeated remarks I received was that it sounds like a very nice and noteworthy idea, but it is nevertheless unrealistic and unattainable, especially if we seriously consider the usual power inequalities and how the parties to conflict prioritize their short-term self-interests. Therefore, the first task of Chapter 8 is to refute this criticism by using concrete examples from the real peace processes of Northern Ireland, Bosnia and Herzegovina, and Cyprus – two of which have delivered a relatively stable peace – in which similar concepts of equality between rival ethno-national groups have played a central role in the peace process and agreement. The second task is to provide some consequentialist justifications for the adoption of collective equality as a guiding principle for peacemaking in ethno-national conflicts.

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8 Collective Equality and Sustaining Peace

8.1 INTRODUCTION

In this chapter, I aim to substantiate my argument that promoting collective equality as a core rationale of peacemaking is a realistic goal that corresponds with reducing the likelihood of violent conflict and increasing the potential for durable peace. In the first part of the chapter, I will develop the argument that collective equality posits a realistic goal for peacemaking. In the second part of the chapter, I will advance the claim that promoting collective equality should be regarded as an effective peacebuilding strategy. I will base this claim on empirical findings from the literature, mainly writings on ethnic conflicts, nation-building, and peace. Last, I will engage with three possible objections related to the relationship between collective equality and power politics. 8.2  COLLECTIVE EQUALITY IN THE PRACTICE OF PEACEMAKING

At its essence, the idea of collective equality offered in this book attempts to conceptualize what has emerged during the last few decades as a preferred strategy for peacemaking. This practice demonstrates that power-sharing arrangements are chosen for pragmatic reasons – for example, to ease intergroup tensions and to provide mutual guarantees for nondomination. Not accidentally, beyond their practical advantages, power-sharing arrangements also promote political equality between ethno-national groups and enhance political inclusion. However, ideas about equality among groups are not restricted to the domain of political representation, but extend to other social domains broadly construed, including the economic system and culture. Looking at the Northern Ireland, Bosnia and Herzegovina, and Cyprus cases, I illustrate how ideas about equality among groups have been at play as part 227

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of each peace process. While the parties to the “frozen” Cyprus conflict have not yet reached a peace agreement, a paradigm based on political equality between the two communities has been agreed upon and formally adopted as the working framework for peace. 8.2.1  Northern Ireland: Equality and Nondomination Several scholars and politicians identified equality between the two rival communities in Northern Ireland as a central pillar of the peace process and even as its guiding rationale. Marianne Elliott, a scholar of Irish history and one of the commissioners in the Opsahl Commission in 1993, wrote in 2007: “In 1993 the Commission which Torkel Opsahl headed … recommended ‘a new government of Northern Ireland, based on the principle that each community should have an equal voice in making and executing laws or vetoing them and an equal share in the administrative authority,’ the core of the ‘parity of esteem’ agenda which informs the current peace process” (Elliott, 2007, 10). According to Peter Shirlow and Colin Coulter, the idea that peace in Northern Ireland would be based on “parity of esteem” and the principle of “mutual respect” between the two communities was recognized as early as the agreement at Sunningdale (Shirlow & Coulter, 2007). According to Maurice Hayes, a former member of the Irish Senate who served in multiple roles at crucial junctions in the peace process starting from the early 1970s, the underlying rationale of the GFA is “that no one tradition should be allowed to dominate the other, but that both should have equal respect” (Hayes, 2007, 96). Christopher McCrudden, a human rights scholar in Northern Ireland, highlights that “One of the central elements of the Agreement was to achieve equality between the two main communities in Northern Ireland. It was an ambitious attempt to achieve this aim through a significant restructuring of the Northern Ireland constitution” (McCrudden, 2013). However, the centrality of equality between the groups manifests itself also in the ways the four dimensions of collective equality (Chapter 7) resonate in the social and political reality of Northern Ireland and its peace process. 8.2.1.1  Redistribution: Narrowing the Gaps between Irish Catholics and British Protestants The GFA includes features that aim to promote economic equality between the two communities, including fair employment legislation and the establishment of a public sector equality duty (Article 5(e), Strand One, and Article 2, Economic, Social and Cultural Issues, GFA; McCrudden, 2013). However,

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the significant economic transformation – that is, narrowing the economic gaps between Irish Catholics and British Protestants in Northern Ireland – preceded the agreement. According to Ed Cairns and John Darby, during the two decades that preceded the agreement, fair employment legislation had done much to correct the discriminatory policies that had shaped earlier employment patterns in Northern Ireland. Furthermore, access to higher education had been equalized and even discrimination in housing – a major issue at the outbreak of the conflict – had been largely resolved (Cairns & Darby, 1998; see also Shirlow & Coulter, 2007). While imbalances remained, they were not at the level that once motivated direct political action and the peace agreement took new steps to further resolve these imbalances. I believe the developments that Northern Ireland has seen in the areas of employment, education, the economy, and housing during the two and a half decades that elapsed between the Sunningdale Agreement of 1973 and the GFA of 1998 played a pivotal role in the success of the peace process and enhanced the durability of the agreement. These adjustments of previous state policies have extended the public services that Northern Ireland distributes beyond the ethnic boundaries of the British-Unionist community to include the entire population of Northern Ireland. This progression toward including members of the Irish-Nationalist community corresponds with one of the three pillars that Andreas Wimmer identified as the three best predictors of successful nation-building (Wimmer, 2018a; 2018b).1 8.2.1.2  Recognition: “Parity of Esteem” The Declaration of Support – the opening document of the GFA – provides official equal recognition of the two national narratives. It begins with the parties declaring their commitment to “partnership, equality and mutual respect as the basis of relationships within Northern Ireland, between North and South, and between these islands” (Article 3, Declaration of Support), and continues with both acknowledging “the substantial differences between our continuing, and equal legitimate, political aspirations” (Article 5, Declaration of Support, GFA, emphasis added). Despite the endorsement of continued ethno-national differences between the two groups, they declare “to strive in every practical way toward reconciliation and rapprochement within the framework of democratic and agreed arrangements” (Article 5, Declaration 1

The three pillars of successful nation-building according to Wimmer are (1) a dense web of organizations across the country; (2) the provision of public goods evenly across all the regions of a country; and (3) a shared language or a common mode of communication (Wimmer, 2018a; 2018b).

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of Support, GFA). Accordingly, the agreement holds that the power of the ­sovereign government “shall be founded on the principles of full respect for, and equality of, civil, political, social and cultural rights, of freedom from discrimination for all citizens, and of parity of esteem and of just and equal treatment for the identity, ethos, and aspirations of both communities” (Article 1(v), Constitutional Issues, GFA, emphasis added). While the obligation to respect individual equality was already universally recognized in Northern Ireland, the introduction of the requirement for “parity of esteem” between the two communities is an innovative concept of the Northern Ireland peace process. The articles of the GFA provide for meaningful, formal declarations of the equal moral status, and equal legitimacy, of the two national narratives within Northern Ireland. While neither of the sides to the conflict accepts or agrees – in these declarations – with the other side’s narrative, the declarations establish mutual respect as the new normative context. Indeed, both parties accept the other side’s right to define its own narrative and its continuing political aspirations (O’Malley, 2016, 57), as well as establish that political legitimacy within Northern Ireland will be extended to both national traditions. Notably, a mere declaration of mutual recognition is not enough to convey “real” recognition, and concrete institutional arrangements need to accompany it (Hennessy & Wilson, 1997). Thus, beyond the declaration of equal recognition, the GFA includes a matrix of arrangements aimed at embedding mutual respect in the wider political and social institutions of Northern Ireland. Among the prominent examples of respect for the Irish Catholic national tradition is the establishment of a North/South ministerial council. This council, aimed at developing cross-border cooperation across the whole island, provides a formal institution through which the connection of the Irish Catholic community in Northern Ireland to the rest of Ireland is recognized (Article 1, Strand Two, GFA). Following Brexit, these parts of the agreement have been under threat, jeopardizing the sensitive balance reached at the peace agreement. The agreement also includes obligations to change British legislation and the Constitution of the Republic of Ireland (Annex A and B, respectively, Constitutional Issues, GFA), as well as a recognition of the birthright of all the people of Northern Ireland to “identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold British and Irish citizenship” (Article 1(vi), Constitutional Issues, GFA). Further institutional transformation was directed toward the police force in Northern Ireland, which had become one of the symbols of discrimination and unfair treatment by the Northern Irish state toward its Irish Catholic members. Subsequent arrangements aimed at enhancing public support for

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the Northern Ireland police included, for instance, changing the name of the police service from the Royal Ulster Constabulary to the Police Service of Northern Ireland, and setting quota provisions aimed at enhancing the participation of Northern Irish Catholics in the police force (Policing and Justice, GFA). The agreement also declared a commitment to facilitate and promote the use of the Irish language in public and private life (Article 4, Economic, Social and Cultural Issues, GFA). Although the GFA made significant progress toward mutual respect and political legitimacy for the two communities, there were still other recognitionrelated issues that were left unresolved, which have remained at the center of political debate in Northern Ireland since the agreement. Among them is the use of symbols and emblems, which is acknowledged by the agreement, but lacks a concrete resolution (Article 5, Economic, Social and Cultural Issues, GFA); the issue of parades; and the issue of “dealing with the past.” In the years that followed, these contentious issues required subsequent agreements to be reached, including the Hillsborough Castle agreement (February 5, 2010), Stormont House Agreement (December 23, 2014), and the Fresh Start agreement (November 17, 2015). 8.2.1.3  Representation: Cross-Community Inclusivity Power-sharing and partnership in the government are central elements of the GFA (Articles 5(b), (c), and (e), Strand One, GFA). According to the agreement, the goal of the agreed-upon structures is to design democratic institutions for Northern Ireland that will be inclusive in their membership and capable of safeguarding the rights and interests of all the sides of the community (Article 1, Strand One, GFA). The political inclusion of both communities, and of the different voices within each, is ensured by the joint office of the first minister and deputy first minister (forming together the position of head of the executive) held by the leaders of the two leading parties, and by the proportional allocation of ministries, committee chairs, deputy chairs, and committee membership according to assembly party strengths (Articles 5(a) and 8, Strand One, GFA). The rights and interests of both ethno-national groups are also secured through the obligation that key decisions of the elected assembly will be taken on a cross-community basis (Articles 4 and 5(d), Strand One, GFA). The key decision mechanism demands approval by a majority of both communities (a majority of Unionists and a majority of Nationalists voting in favor), or a weighted majority (60 percent) that includes at least 40 percent of each of the Nationalist and Unionist designations (Article 5(d)(i) and (ii), Strand

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One, GFA). In order to measure cross-community support, the agreement establishes the demand that members of the assembly will register their designated identity; that is, Nationalist, Unionist, or other (Article 6, Strand One, GFA). Key decisions that require cross-community support include the election of central political positions; budget allocations; or other cases brought by a “petition of concern” (Article 5(d), Strand One, GFA). While political parity between the two communities is required for securing “nondomination” between the communities, veto powers and demands for equal consent can prevent (and in fact do prevent) changes to the status quo that are necessary to correct past inequalities. 8.2.1.4  Procedural Equality and Political Inclusion The peace negotiations in Northern Ireland, until the signing of the GFA, spanned three decades and included many stages, partners, and forms of talks. From the beginning, official statements and procedures established that the interests of both communities should be taken into consideration, and that there was not just one representative voice but multiple voices from each of the two major communities. Nevertheless, the participation of leaders who supported or were linked to armed activity remained a highly contentious issue. Up until the negotiations that led to the GFA, local leaders who were involved in paramilitary activity, most significantly the leaders of the IRA, were not acceptable parties to the peace talks. Only in October 1997, after a second ceasefire declaration by the IRA, were representatives from Sinn Féin officially included in the peace negotiations. However, due to Sinn Féin’s participation, the DUP – the more radical Unionist Party – refused to participate in the negotiations. Although the negotiations did not include all political parties, they did include significantly wider political representation than before. Six months later the peace agreement was signed. The multiparty, multinational approach to negotiations in Northern Ireland meant inclusive representation at the peace talks. Beyond the widely recognized advantage of including the “men with the guns” in the negotiations, their inclusion meant that radical national positions and reliable representatives of “salient” national identity were heard, but also that ways to accommodate their views needed to be found. Including different voices provides a more complex manifestation of the “other,” thus contributing to a more complex, nuanced, and genuine recognition of the other. Summing up, the Northern Ireland peace process demonstrates clear progression toward collective equality, with a clear move toward a more inclusive political order and partnership. However, this transformation did not occur

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overnight. Rather, it started long before the GFA, and still continues, more than two decades later. This gradual transformation seems to have paved the way for a sustainable peace agreement. While other accounts connect the failure of Sunningdale to other conditions, this chapter’s focus on collective equality reveals three major differences between the early 1970s (Sunningdale) and the late 1990s (GFA). First, a dramatic change in the socioeconomic conditions of the Irish Catholic population in Northern Ireland vis-à-vis the Unionists-Protestants, especially in education, housing, and the labor market (i.e., growing equality/lesser inequality in the socioeconomic dimension); in other words, a more equitable distribution of public goods. Second, wide acceptance among political elites and civil society that shared political power is the only viable political option. And finally, a growing legitimation of the other’s narrative (partial and gradual mutual recognition). 8.2.2  Bosnia and Herzegovina: Collective Equality among Constituent Peoples In Bosnia and Herzegovina, the term “collective equality” was officially coined by Bosnia and Herzegovina’s constitutional court to refer to the equality of its “constituent peoples,” notwithstanding the significant population size differences between them (cf. Venice Commission remarks, March 11, 2005, para. 66). The idea of equality between the groups is manifest in Bosnia and Herzegovina through the complex power-sharing arrangements adopted by the Dayton Agreement. Like in Northern Ireland, Bosnia and Herzegovina’s political system aims to guarantee nondomination; that is, to prevent one or two of the ethnic groups from dominating another. These aspects of Bosnia and Herzegovina’s peace arrangement help illuminate my argument that the idea of equality between rival ethno-national groups is a fundamental element of this peace process. However, when compared with the concept of collective equality proposed in this study, significant differences stand out, especially regarding equal representation. 8.2.2.1  Procedural Equality: Trapped between Complexity and Urgency The peace negotiations in Bosnia and Herzegovina, unlike those in Northern Ireland, took place amid a devastating war and were conducted with a high level of urgency. Despite that urgency, for almost four years diplomatic efforts by the EU, the UN, and the USA were ineffective. During this time, the Clinton administration decided to send Richard Holbrooke – the US Assistant Secretary of State for Canadian and European Affairs – to lead an “all out

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negotiating effort” (Holbrooke, 1998). There were many actors in the conflict. Directly implicated in the war were the Bosnian Muslims, the Bosnian Croats, the Bosnian Serbs, the Croatian Serbs, and the states of Croatia and Serbia. From outside the region, but trying to intervene in the conflict, were the USA, the North Atlantic Treaty Organization (NATO), the UN, and the Russian Federation (Camisar et al., 2005, 12). This list of actors includes the  three ethno-national protagonists in the Bosnian war, but does not include the subgroups within them or “others”: persons who did not belong to any of the three ethnic groups as well as those who opted for a shared identity. In a census conducted in Bosnia in 1981, the vast majority of the population identified as belonging to one of the three ethno-national identities of Muslim, Serb, or Croat, and only 8 percent of Bosnians declared their primary identity to be “Yugoslav.” By 1991, this percentage had declined to 5.5 (Bose, 2007, 115–116). With its many actors, the Bosnian conflict was complex and Holbrooke’s negotiation strategy (in contrast to the one adopted in the Northern Ireland negotiations) was simplification. This was done by subordinating key European players to US control (Camisar et al., 2005, 12–13) and by persuading the Serbian president, Slobodan Milosevic, to use his influence among the Bosnian Serbs to position himself as their representative (Watkins, 1999, 13). Circumventing the local protagonists – particularly the Bosnian Croats and the Bosnian Serbs – and refusing to give them equal standing in the peace negotiations are reflected in the signatories of the Dayton Accords. Unlike the GFA, which was signed by the local parties as well as the two states involved (Ireland and the UK), the Dayton Accords were signed only by the international players; that is, Bosnian President Alija Izetbegovic, Serbian President Slobodan Milosevic, and Croatian President Franjo Tudjman. 8.2.2.2  Representation: Formal Equality and Relational Inequality The major power-sharing arrangements established at Dayton, which aim at sharing the political powers of Bosnia and Herzegovina among the three groups, were designed as a three-layered institutional system incorporating state institutions, substate entities, and localities (see Chapter 5). Despite the population size differences between Bosniaks, Bosnian Serbs, and Bosnian Croats (around 45 percent, 36 percent, and 15 percent, respectively), the highest political positions and decision-making powers were allocated equally between them. This equal representation at the top of the government, together with mutual veto powers, solidified their equal constitutional status as the three “constituent peoples” of Bosnia and Herzegovina. Beyond sharing the powers of the Bosnia and Herzegovinian state, a major part of the

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overall power-sharing scheme was the division of the state into two federal units – Republica Serpska and the Federation of Bosnia and Herzegovina – which were accorded most of the governmental functions. Unlike Republica Serpska, which was – as a result of the “ethnic cleansing” that took place during the war – overwhelmingly inhabited by Bosnian Serbs, the federation was inhabited by both Bosniaks and Bosnian Croats. The federation was recognized in the Washington Agreement as the regional state of two peoples: the Bosniaks and the Bosnian Croats. Due to this ethnic duality, the constitutional arrangements sought to ensure that both constituent peoples enjoyed equal influence (see Chapter 5; see also the Venice Commission Opinion, March 11, 2005, para. 5; Woodward, 2012, 136). The federal division of Bosnia and Herzegovina along ethnic identities, a division embedded in the Washington and Dayton Agreements, was rejected by Bosnia and Herzegovina’s constitutional court. While the court accepted the unique status of the three groups, it steadfastly rejected securing their equality through substate ethno-centered federal units. Due to its importance to the overall discussion here, I provide a relatively long quote from this decision: 53. Taken in connection with Article I of the Constitution, the text of the BiH Constitution thus clearly distinguishes constituent peoples from national minorities with the intention to affirm the continuity of Bosnia and Herzegovina as a democratic multi-national state which remained, by the way, undisputed by the parties. The question thus raised in terms of constitutional law and doctrine is what concept of a multi-national state is pursued by the BiH Constitution in the context of the entire GFAP [General Framework Agreement for Peace in Bosnia and Herzegovina] and, in particular, whether the Dayton Agreement with its territorial delimitation through the establishment of the two Entities also recognized a territorial separation of the constituent peoples as argued by the RS [Republica Serpska] representatives? … 57. … It is no question therefore that ethnic separation through territorial delimitation does not meet the standards of a democratic state and pluralist society … Territorial delimitation thus must not serve as an instrument of ethnic segregation, but—quite contrary—must provide for ethnic accommodation through preserving linguistic pluralism and peace in order to contribute to the integration of state and society as such. … 60. In conclusion, the constitutional principle of collective equality of constituent peoples following from the designation of Bosniacs, Croats and Serbs as constituent peoples prohibits any special privilege for one or two of these peoples, any domination in governmental structures or any ethnic homogenization through segregation based on territorial separation. 61. It is beyond doubt that the Federation of Bosnia and Herzegovina and Republika Srpska were—in the words of the Dayton Agreement on

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Implementing the Federation, signed in Dayton 10 November 1995—recognized as constituent Entities of Bosnia and Herzegovina by the GFAP, in particular through Article I. 3. of the constitution. But this recognition does not give them a carte blanche! Hence, despite the territorial delimitation of Bosnia and Herzegovina by the establishment of the two Entities, this territorial delimitation cannot serve as a constitutional legitimation for ethnic domination, national homogenization or a right to uphold the effects of ethnic cleansing. (Constitutional Court of BiH, Decision No U-5/98-III, June 30 and July 1, 2000, emphasis added)

In short, Bosnia and Herzegovina’s constitutional court rejected as illegitimate the use of ethnic federalism as a legitimate tool of ethnic power-sharing. Arguing that such arrangements are equivalent to ethnic domination, it concluded that collective equality in democratic Bosnia and Herzegovina entails the mixing of the population and the elimination of any ethno-national character attached to the substate federal units or the ten autonomous cantons. It is important to recall that sharing of state powers, and political inclusion, can be achieved both by joint management of those powers and by dividing them, as for example by using territorial autonomy arrangements. In the same vein, the collective equality offered in this book can be promoted and secured either by exercising powers together, or by exercising powers interdependently, as long as the relationships among the ethno-national actors and individuals are based on equality and nondomination. The discrepancy between the two interpretations of collective equality does not seem to stem from different understandings of equality, but rather from the interplay of other considerations that influenced the court’s interpretive choice; namely, securing the territorial integrity of Bosnia and Herzegovina, downplaying the significance of territorial arrangements, and rejecting the fruits of ethnic cleansing. As elaborated later, this seems to be the driving rationale in the “constituent peoples” case. Despite many efforts to reverse some of the consequences of ethnic cleansing, for instance by supporting “minority returns” or by rejecting ethnic federalism, its consequences are widespread and the vast majority of Bosnia and Herzegovina’s people live today in ethnically homogenous, or nearly homogenous, areas (Bose, 2017, 190–191). At the same time, the demand that all three groups be accorded equal preferential status throughout Bosnia and Herzegovina has caused additional institutional burdens and complications. 8.2.2.3  Recognition: Equal but Not Mutual Bosnia and Herzegovina’s peace is formally built on the recognition of the three ethno-national groups – the constituent peoples of Bosnia and

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Herzegovina – as equals. But, beside this formal recognition of their equality, very little mutual recognition seems to be found. Moreover, the differences between the sides with regard to the legitimacy of their national traditions seems to be widening instead of narrowing. An extreme example that illustrates the lack of mutual recognition and mutual respect can be found in the memorialization of wartime suffering. While mutual respect does not require accepting or agreeing with the national narrative of the other, it does demand its acceptance as legitimate (cf. “parity of esteem”). In Bosnia and Herzegovina, however, “all three sides are increasingly disagreeing on facts of history” (Jarstad, 2015, 24). The issue of genocide in Srebrenica in 1995 offers a drastic instance. While it is generally regarded as one of the most vicious war crimes in the Bosnian war (Prosecutor v. Radislav Krstić, 2004, Case No. IT-98-33-A; Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Radivoje Miletić, and Vinko Pandurević, 2015, IT-05-88-A), Republica Srpska refuses to acknowledge it to this day, using alternative tactics of denial, diminishment, or avoidance (Jarstad, 2015, 24; Synovitz & Obradovi, 2019). At the same time, the Bosniak community is doing whatever it can to memorialize the Srebrenica genocide. This discrepancy is found also in popular views. A survey from 2013 found that 76 percent of Bosniaks and 67 percent of Bosnian Croats agreed with the ruling by the International Criminal Tribunal for the former Yugoslavia on the genocide in Srebrenica, while only 10 percent of Bosnian Serbs responded positively (Jarstad, 2015, 22). 8.2.2.4  Redistribution: Expansion of (Nonethnic) Economic Inequalities It has become conventional wisdom that inequality has grown significantly since the end of the war, but it has been hard to base this on reliable data (Woodward, 2012, 136–137). In postwar Bosnia and Herzegovina the primary inequalities were between those who had profited from the free-market and privatized economy and those who had not (Woodward, 2012, 136–143; Kurtović, 2015). Given the country’s socialist background, it is interesting to see growing socioeconomic and gender inequalities in Bosnia and Herzegovina, manifested in a decline in personal income and living standards, increased unemployment, and growing inequality of access to good healthcare (Lai, 2020; Maglajlić & Rašidagić, 2011). Interestingly, the popular view in Bosnia and Herzegovina seems to support more social justice. According to a survey from 2014, 93.4 percent of the 1,500 interviewees expressed their preference for organizing Bosnia and Herzegovina as a society in which individuals have less money but

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are relatively equal, rather than living in a society of extremely rich and extremely poor individuals, and 86.3 percent agreed that state companies should be renationalized because their privatization harmed social justice (Jarstad, 2015, 22). To summarize, the ideas of equality and nondomination between the three ethno-national groups – that is, the three constituent peoples of Bosnia and Herzegovina – seem to be an underling core rationale of the agreement and of the accompanying constitutional arrangements. At the same time, Bosnia and Herzegovina’s peace process reveals difficulty in cultivating mutual respect and combating widening socioeconomic inequality. 8.2.3  Cyprus: Majority and Minority as Political Equals The peace negotiations in Cyprus, also called the reunification talks, have continued on and off during the last five decades. The great disappointment of 2004, with the overwhelming rejection of the Annan Plan by the Greek Cypriots, was followed by several years of stagnation in peace negotiations. In March 2008, the leaders of the two sides decided to resume the peace talks based on a framework emphasizing the parity of the rival communities as the only baseline for agreement. Yet, a wide gap remains between the official declarations made by leaders about political parity and the popular political perceptions of Greek Cypriots that expect Cyprus to be governed as a “proper” (majoritarian) democratic state with human rights protections. 8.2.3.1  Procedural Equality: “Equal Footing” In 1974, a UN General Assembly (UN GA) resolution (resolution 3212 UN GA) recognized the local communities as the primary actors in the peace negations over Cyprus’ future and held them as equals in these negotiations. In Article 4 of this resolution, the UN GA “Commends the contacts and negotiations taking place on an equal footing, with the good offices of the Secretary-General between the representatives of the two communities and calls for their continuation with a view to reaching freely a mutually acceptable political settlement, based on their fundamental and legitimate rights” (emphasis added). This principle of equal status in negotiations is repeatedly mentioned in subsequent resolutions of the UN GA and the Security Council (UN SC) (resolution 649, 1990, article 3, UN SC). In order to hold the sides as equals (and to bypass other challenges of recognitions), the representatives of the two communities are called “leaders” instead of presidents or prime

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ministers. Yet, it has been argued by local actors that inequality remains.2 Others have emphasized the importance of securing equality in the negotiation process itself by including representatives from all the political parties.3 This need for a plurality of views around the negotiation table echoes the experience of the Northern Ireland peace process, but has not been incorporated into the official peace talks in Cyprus. 8.2.3.2  Political Equality: Bicommunal, Bizonal Federation The principle of political equality between the two ethno-national groups has long been embedded in the Cyprus peace talks. As early as the second round of the Vienna Talks (July 5–7, 1975), Denktash stated the position of the Turkish Cypriot community, demanding that the constitutional arrangements of the Republic of Cyprus must reflect political equality between the two communities (Michael, 2009, 48, 115). This demand was eventually incorporated into the official, agreed-upon discourse of the peace negotiations. UN SC resolution 716 (1991) was the first to use this term. While in previous UN GA and UN SC resolutions only the concept of “equal footing” was mentioned (referring to the status of the sides within the negotiation process), in Article 4 of Resolution 716 the UN SC “reaffirms further that its position on the solution to the Cyprus problem is based on one State of Cyprus comprising two politically equal communities” (emphasis added). In December 1996, the British Foreign Secretary Malcolm Rifkind formulated a 10-point framework to reactivate the UN intercommunal talks “based on a bizonal-bicommunal federation that reflected the principle of political equality” (Michael, 2009, 149). The Annan Plan also acknowledged that the relationship between the communities was “not one of majority and minority but of political equality” (Chapter 5). From this point on, the principle of political equality became one of the defining constitutional requirements for a peace settlement in Cyprus. While endorsing political equality as a paradigm for peace in Cyprus was a significant development, it nevertheless ignited the next level of dispute: What does the proclaimed “political equality” mean in practice? According to the Turkish Cypriot nationalist view, political equality meant equal sovereignty. This position was clearly expressed by Denktaş, the leader of the Turkish Cypriot community from his election as vice president of the republic in 1973 to 2005. The demand for separate sovereignty has its roots in the demand for taksim (partition) of the island between Turkey and Greece 2 3

Interview with the author, August 15, 2016. Interview with the author, August 17, 2016.

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(double enosis). However, it also represents the assertion of political equality between the communities, aimed particularly at avoiding domination by Greek Cypriots (Vural & Peristianis, 2008, 45). The more moderate Turkish Cypriot position, supported also by the more “leftist” parties in the Greek Cypriot community such as AKEL (Progressive Party of Working People), shares this vision of political equality, but see its implementation through federalism, bicommunality, and bizonality (Kyprianou, 2014). However, the more dominant Greek Cypriot view interprets political equality as safeguarded by equal political individual rights and is uneasy with the concept of bicommunal political equality (Sözen & Özersay, 2007, 127; Theophanus, 2008, 29). This discomfort of many Greek Cypriots comes from their numerical superiority and their sense of being the indigenous inhabitants of Cyprus (Michael, 2009, 48, 183). According to the UN SC, the aim of “political equality” is to ensure substantive parity of the political powers of the two communities, and does not necessarily mean equal numerical participation in all political institutions. Specifically, political equality should be reflected “in the requirement that the federal constitution of the State of Cyprus be approved or amended with the concurrence of both communities; in the effective participation of both communities in all organs and decisions of the federal government; in safeguards to ensure that the federal government [would] not be empowered to adopt any measures against the interests of one community; and in the equality and identical powers and functions of the two federated states” (Annex I, para. 11, Secretary-General report, March 8, 1990, cited by Michael, 2009, 123). Hence, since the late 1990s, and even more clearly since 2008, the principle of political equality has been understood as including the concepts of bicommunality and bizonality.4 Reaffirmation of the commitment to a bizonal, bicommunal federation with political equality was given by the two leaders in a meeting on May 23, 2008. In that meeting, they agreed that this partnership would have a federal government with a single international personality, as well as a Turkish Cypriot Constituent State and a Greek Cypriot Constituent State of equal status. The joint declaration published by the two national leaders on February 11, 2014 reaffirms the centrality of these three principles: “The settlement will be based

4

The concept of “bicommunality” can be found already in the Makarios–Denktash “High Level Agreement” from February 1977. Although the concept of “bizonality” was not mentioned in the agreement, the Turkish Cypriot understanding was that it was included in the “bicommunality” concept, while the Greek Cypriot understanding rejected it (Michael, 2009, 51).

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on a bi-communal, bi-zonal federation with political equality, as set out in the relevant Security Council Resolutions and the High Level Agreements” (February 11, 2014 Joint Declaration on Cyprus). The specific constitutional proposals for a reunified Cyprus can also help to identify how political equality has been understood in the context of Cyprus’ negotiations. Using the Annan Plan as a reference point, one can see that the concept of political equality is embedded in a complex proposed model of power-sharing via the use of consociational democracy and federalism. According to the Annan Plan, the United Cyprus Republic (UCR), as it would be called, would comprise two equal constituent states, the Greek Cypriot State and the Turkish Cypriot State, with a single international personality. The federal system chosen for the federal government and its constituent states is modeled on the status and relationship of Switzerland’s federal government and its cantons (Article 2.1, Main Articles, Annan Plan). In order to safeguard the political independence and communal identity of both communities (and especially of the Turkish Cypriot community), the plan vests in the UCR as well as in each of the constituent states unique internal immigration control powers. These immigration powers include the right to restrict, in a nondiscriminatory manner, immigration from other countries (including Greece and Turkey) and a right to restrict “internal immigration” from the other constituent state (Article 3, Main Articles, Annan Plan). These powers to restrict “internal immigration” have become one of the most controversial elements of the peace plan, giving rise to arguments raised by Greek Cypriots that the proposed peace agreement violates their basic human rights. The proposed structure for the parliament and presidency also follows the principle of political equality. The federal parliament would comprise two chambers, a Senate and a Chamber of Deputies, with 48 members each. The Senate would be composed of an equal number of Greek Cypriots and Turkish Cypriots, while the Chamber of Deputies would be composed proportionally according to the population of each of the constituent states, with no less than one-quarter of seats to each of the states (Article 5, Main Articles, Annan Plan). Decisions would require the approval of both chambers by simple majority and at least a quarter of the senators from each state. On specified matters, a special majority of two-fifths of the members from each state would be required in the Senate. The powers of the head of state would be exercised by a presidential council comprising six members with at least one-third from each state. The decisions of the presidential council would be taken by simple majority, provided the decisions were supported

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by at least one member from each state. The council would elect two members, one from each state, as president and vice president to rotate every 12 months. To summarize, while political equality in the Cypriot context is not understood to require identical numbers in public offices, it does require that the arrangements provide parity of participation between the two ethno-national groups and guaranties of nondomination. 8.2.3.3  Recognition: Recognition within a Divided Island To promote equal and mutual recognition, as understood by collective equality, the official discourses and conventional historiographies in Cyprus need to be challenged or at least adjusted. The Annan Plan, as well as subsequent statements, includes several acknowledgments of mutual recognition. For example, Article iii of the main articles of the Anan Plan recognizes “each other’s distinct identity and integrity,” while Article VI states: “Committed to respecting democratic principles, individual human rights and fundamental freedoms, as well as each other’s cultural, religious, political, social and linguistic identity” (emphasis added). However, wide gaps remained between these declarations and political practices, which raises the question of the possible contribution of civil society to the promotion of equal recognition. Indeed, contrary to political representation or equality in negotiations, the promotion of equal recognition – as the recognition of the other’s identity, nationality, and culture – does not rest with political elites only. Civil society organizations, the media, and the education system are important actors as well (Bekerman & Zembylas, 2011). In practice, since the 1980s rapprochement attempts have been initiated by a variety of civil society organizations, many of which were directed toward the acknowledgment and recognition of members of the other community and their narrative. While views on the matter diverge, it seems that many agree that these efforts failed in bringing about a shift in public perceptions. Beyond the obstacles to mutual recognition erected by the physical separation of the two communities, Cypriot’s “struggle for recognition” imposes an additional significant obstacle. The default meaning attached to “recognition” in Cyprus relates to the struggle for and against official recognition (Constantinou & Papadakis, 2001; see also Caspersen, 2018). Viewed from the Greek Cypriot side, it is a struggle against any official recognition of the Turkish Republic of North Cyprus (TRNC) and for the recognition of the Republic of Cyprus as the only legitimate state in Cyprus. Viewed from the Turkish Cypriot side, the opposite objective is

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pursued: recognition of the TRNC and the denouncing of the legitimate recognition of the Republic of Cyprus due to its failure to act upon its original constitutional obligations as a state of two communities (Constantinou & Papadakis, 2001, 140–141). Costas Constantinou and Yiannis Papadakis demonstrate the extent to which the struggle over official recognition has been a serious obstacle to rapprochement attempts. At the same time, the opening of the Green Line in 2003 enabled Greek Cypriots and Turkish Cypriots to cross over the divide and visit their original homes for the first time since the division of the island in 1974. This development also opened important “grassroots” possibilities for recognizing the other as persons and human beings (Hadjipavlou, 2016). These included transitional justice (Bozkurt & Yakinthou, 2012) and bicommunal initiatives, including educational programs (Zembylas, 2018), cowriting histories, or jointly renovating national heritage monuments (Reid, 2021). 8.2.3.4  Redistribution: Sharp Economic Separation Economic inequalities are one of the serious causes of ethnic conflicts and also clearly feature in the Cypriot case (Hadjipavlou, 2007, 360). In 2001, the income per capita in Northern Cyprus was only 25 percent of the corresponding figure in the Greek Cypriot south (Theophanus, 2008, 47). In 2007, it was estimated that the income per capita in Northern Cyprus was a third of the corresponding figure in the south (Hadjipavlou, 2007, 360). In 2017, the gross domestic product (GDP) per capita in the northern part was estimated to be around half of the corresponding figure in the south. While this decrease in economic inequality seems to be a positive development, it nevertheless lacks an important feature found in the parallel process in Northern Ireland. Unlike Northern Ireland, the economic convergence in Cyprus did not involve the growth of significant economic cooperation – either between the two communities as a whole or between members of the two communities. Furthermore, the Greek Cypriot policy of “nonrecognition” of the TRNC poses a major obstacle to any such economic cooperation. Despite their importance, economic inequalities between the two communities do not get much attention, either within or outside the official peace negotiations. Indicative of this is the fact that in the 400 pages of the Annan Plan, there is no clear reference to the economic gap between the communities or to the need to create economic convergence. During the last decade, a change of approach in this regard seems to have taken place. Some research on the economic aspects of a settlement has been done (Theophanus, 2008; Trimikliniotis et al., 2012) and the topic was discussed more exhaustively in

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the last round of talks.5 Yet there have been no signs of a significant change in policies. To summarize, while the Cyprus case cannot be presented as a successful peace process since the two sides have not been able to reach an agreement, it does demonstrate very clearly that collective equality between the competing ethno-national collectives has become the underlying principle for an agreement, much like the previous cases of Bosnia and Herzegovina and Northern Ireland. Indeed, none of the peace processes reviewed here is likely to be regarded as successful in consolidating a stable liberal democracy. However, I believe these three peace processes provide enough support for my argument that collective equality is not merely utopian, but rather a practice-based concept. That peacemaking practice shows that collective equality, whether formally endorsed by the sides to the processes themselves or not, has fundamentally informed the peace processes. 8.3  IS COLLECTIVE EQUALITY EFFECTIVE?

For liberals it might be a prima facie assumption that the promotion of equality within a society is also advisable from a pragmatic point of view as the best way to secure peace and long-term stability (cf. Rawls, 2001b, 12–13, 44–45; 2001a, 184–188). This assumption seems to receive some empirical support. As early as 1971, Adam Curle, a mediator working with ethnic conflicts in Africa in the 1960s and 1970s, observed that as conflicts moved from unpeaceful to peaceful relationships, their course could be charted from one of relative inequality between the groups to relative equality. He described this progression toward peace as involving four stages: (1) a hidden conflict – in which the inferior parties were unaware of the injustices that affected their lives; (2) confrontation – which came after consciousness-raising and mobilization; (3) negotiations – under some conditions, confrontations resulted in negotiations; and (4) successful negotiation and sustainable peace that occurred only when negotiations led to a restructuring of the relationship between the sides that effectively addressed their substantive concerns (Coleman & Deutsch, 2012, 8). Since Curle made his observations, additional empirical research has established a correlation between intergroup inequalities and violent conflict and between equality and peace. Without aiming to be exhaustive, I will briefly review two significant research findings: first, findings that substantiate the correlation between inequalities – in economic, political, and cultural 5

Based on interviews and conversations conducted in Cyprus during 2017–2018 with people involved in the peace talks.

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status among ethnically defined groups – and the likelihood of conflict; and second, findings of the correlation between equality provisions within peace agreements and more durable peace. 8.3.1  Group-Based Inequalities, Exclusion, and Violent Conflicts One of the central characteristics of ethnic conflict and civil wars is the exercise of domination by one ethno-national group over another (see Chapters 1 and 2). Empirical examinations, including statistical assessments and case studies, found strong correlations between political exclusion and structural discrimination of ethno-national groups with the outbreak of civil wars (Cederman et al., 2007; 2009; 2010; 2011; 2013; Buhaug et al., 2008; Stewart, 2008; Wimmer, 2013a; 2018a, 4–7). In their study published in 2010, Cederman, Wimmer, and Min established that political exclusion is the most strongly linked condition to the outbreak of civil wars (Cederman et al., 2010). Global research has found that when inequalities among ethnic groups are consistent across dimensions – covering economic, political, and cultural inequalities – the probability of conflict increases (Stewart, 2008, 299; 2011). Abrupt changes in political power, and particularly a recent downgrade or loss of power, especially increase this probability (Cederman et al., 2010, 107). Under conditions of political exclusion and socioeconomic inequalities, events in which prominent cultural or religious symbols are attacked often constitute powerful triggers of conflict (Stewart, 2008, 299; 2011). These findings demonstrate the importance of a multidimensional understanding of justice and equality – such as Nancy Fraser’s account of justice – and are endorsed by the collective equality principle offered in this book (Chapter 7). Notably, contrary to the expectations of democratic civil peace theory, democracies are not less likely than autocracies to experience ethnic conflict (Cederman et al., 2010, 113; Wimmer, 2013a, 32–33, 176–180; 2018a, 15) and the important factor in both is the same – to what extent the political power structure excludes or includes major ethnic groups. Policy recommendations that have come out of these research findings emphasize political inclusion as the most significant factor (Wimmer, 2013a; 2018a). Since the political landscape in places riven along ethno-national lines of division includes, by definition, more than one national community, political inclusion requires the inclusion of representatives of all the major social groups within the central government. The question is how such political inclusion can be fostered in the real conditions of deeply divided places, places such as Bosnia and Herzegovina, Cyprus, Northern Ireland, Israel–Palestine, Iraq, and Lebanon, often characterized by grave mistrust and collective fear

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among the rival groups (Bar-Tal, 2007a; 2007b). As we have seen in the experiences of Cyprus, Northern Ireland, Bosnia and Herzegovina, and Israel– Palestine, power-sharing is not the first option for ethno-national majorities, who tend to believe that they have the right to rule the state as their own. This is particularly true given the deference to majoritarian democratic systems. Therefore, it has been suggested that in cases where outside forces have some leverage – like the role played by the USA and the international community in Bosnia and Herzegovina – power-sharing arrangements, despite their many flaws, represent one central strategy for ensuring political inclusion in conditions of deeply divided places (Wimmer, 2018a, 264; McCulloch & McGarry, 2017; Hartzell & Hoddie, 2015; McGarry & O’Leary, 2009). But externally imposing power-sharing arrangements is not enough. As illustrated by the 1960s Cypriot constitution, or by the Bosnia and Herzegovina experience, continued external intervention in support of the arrangements seems to be required, especially if the local will and ability are not enough to maintain the power-sharing arrangements. Sustainable conflict transformation, based on political inclusion and the building of relationships and social structures, is not something that can be engineered over a few months or years, but must be viewed as a much longer transformation, a generational project (Lederach, 1997; 2015; Wimmer, 2018a, 264). One central factor that correlates with high levels of political inclusion is the fair provision of public goods by the state among the ethno-national groups across its entire territory and citizenry (Wimmer, 2018a, chs. 3 and 7). Promoting fair public goods distribution needs to see the withdrawal of past discriminatory practices and a deliberate promotion of intergroup equality in all aspects of state-controlled public goods, tangible and intangible. These include leveling up, to correct the intergroup political, cultural, and socioeconomic inequalities (Stewart, 2008, 323). Since the relationship between “objective” inequalities and conflict is not direct, but is mediated by other factors, including public perceptions, policies should aim to correct objective inequalities, but also attend to perceptions about these inequalities (Stewart, 2008, 301–302). The Northern Irish case provides a vivid illustration of these general findings. Political exclusion and systematic group-based discrimination marked Northern Irish history from its formation by partition in the 1920s until the early 1970s. During this period, the British Protestant “Unionists” of Northern Ireland secured their domination of the Northern Irish government through majoritarian democratic arrangements. These governments adopted ethnically based public goods distribution policies, discriminating against the Irish Catholic population in employment, housing, and other

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social services. Political exclusion and discrimination in the allocation of public services were accompanied also by unequal treatment of the cultural and national aspects of the Irish Catholic community, with the Northern Irish state not recognizing the Irish language, culture, and national narrative. The outbreak of the “Troubles” in Northern Ireland demonstrates the prediction identified by the research discussed earlier, that political exclusion of large social groups and significant intergroup inequalities – particularly when they encompass all three areas of economic, political, and cultural aspects – increases the likelihood of violent ethno-national conflict. At the same time, the gradual processes that have taken place in Northern Ireland since the early 1970s – policies aimed at eradicating the previous discriminatory policies – also provide support to the policy recommendations mentioned and the understanding that promoting peace and political inclusion is advanced by fair and equal public goods distribution and equal recognition of culture and national traditions. As was mentioned earlier, since the early 1970s, following the introduction of direct rule, the British government imposed a change in the Northern Irish state’s policies. During the next two decades, inequalities in employment, education, and housing were reduced significantly, and by some estimates largely resolved (Cairns & Darby, 1998; Shirlow & Coulter, 2007; McCrudden, 2013). The GFA took another important step – recognizing equal rights and institutionalizing equal political inclusion of the Irish Catholics in the government of Northern Ireland. The progress in the social and economic dimensions – that is, the change in the policies of public goods provision in Northern Ireland – seems to play a crucial role in facilitating this political transition. Although cultural and national recognition have not been entirely resolved and continue to stir political conflict in Northern Ireland, the decades before the agreement and after it demonstrate continued and ongoing transformation toward recognition and legitimation.6 The experience of Northern Ireland is therefore in line not only with the conclusion that reducing inequalities among groups is advisable in order to reduce violent ethno-national conflict, but also with the suggestion that it is needed to support sustainable political inclusion. The experiences of Northern Ireland and Bosnia and Herzegovina are also 6

Prominent steps in the recognition process of Irish culture and narrative in Northern Ireland include the Anglo-Irish Agreement, signed in November 1985, in which the British government recognized the legitimacy of the constitutional aspirations of the Catholic nationalists; the Opsahl Commission report, published in 1993, which coined the phrase “parity of esteem”; the GFA; the St Andrew agreement from 2006; and the Hillsborough Agreement from 2010.

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in line with the assessment that even when efforts are made in the right ­direction, such transformative processes are lengthy. 8.3.2  Equality and Durability of Peace Agreements A correlation has also been found between equality and the durability of peace agreements. In a study that analyzed 16 peace agreements and peace negotiations, concluded mostly during the early 1990s, several key concepts of justice and durability were identified (Albin & Druckman, 2012a; 2012b; see also Deutsch, 1985; 2000; Albin & Druckman, 2010; Albin, 2001; 2008; Druckman & Albin, 2011; Druckman & Wagner, 2019). The concepts included distributive justice, particularly the principles of equality, proportionality, compensation, and need; and procedural justice, specifically the principles of transparency, fair representation, fair treatment, fair play, and voluntary agreement. The researchers looked for the presence of these elements of justice within the peace agreements and in the negotiation processes that led to the signing of the agreements, and compared them with the prevailing conditions in the conflict sites several years later. The difficulty of the conflict environment was shown to have the most impact on durability. However, the principle of equality, when a central part of agreements, was found to reduce the negative impact of difficult conflict environments on that durability. An emphasis on equality in the peace agreements was also associated with more forward-looking agreements, which were found to be more durable than backward-looking ones. Furthermore, significantly more durable agreements occurred when the process was conducted fairly according to procedural justice principles. Interestingly, procedural justice was not found to have an effect on the durability of the agreements, unless it was also associated with the equality outcome in the peace agreement itself. Hence, procedural justice mattered only when it facilitated a more equal outcome. The research has classified the equality-related provisions found in peace agreements into three main types: (1) equal measures – referring to shared participation in arms reduction and, more generally, progress toward equality in military strength; (2) equal treatment – referring to provisions intended to ensure the same opportunities for all groups over the long term; and (3) equal shares – referring to the sharing of political power. Interestingly, the research found that certain types of equality – that is, equal treatment and equal shares – boost the durability of peace agreements, while equal measures (military strength) contribute less: “The results obtained from our analyses are clear. Peace agreements that emphasize the principle of equality in their provisions

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are more durable than those that do not. This is particularly the case when the equality provisions are forward looking, by which we mean equal treatment for all parties or equal shares in terms of the distribution of power” (Albin & Druckman, 2010, 117). To summarize, empirical research finds a correlation between significant inequalities and the outbreak of violent ethno-national conflict on the one hand, and between equality and greater durability of the peace achieved on the other hand. These research findings show that promoting equality between the ethno-national contenders – along economic, cultural, and political aspects – is advisable for pragmatic reasons. Such empirical research can only point to increased probabilities and does not provide any certainties. However, these empirical findings are brought out here as an additional consideration, supplementing and supporting what is independently required by considerations of justice. 8.4  MORAL AND PRACTICAL OBJECTIONS TO COLLECTIVE EQUALITY

Endorsing the concept of collective equality may raise three additional objections and concerns, all connected with the risk of providing legitimation to questionable arrangements, policies, or courses of action. The first relates to a possible legitimation of the use of violence, as granting recognition to groups that have resorted to the use of violence seems to reward and hence encourage the use of violence in the pursuit of political goals. The second relates to a possible legitimation of ethno-centric politics. The third relates to a possible legitimation of unfair agreements that collective equality might provide. 8.4.1  Rewarding Violence Providing legitimacy and positive reward for the use of violence is a serious concern that I will be able to address here only cursorily. Despite its horrible ramifications, not all use of violence is unjustified. Within domestic and international systems, it is common to find that the use of force in self-defense is regarded as legitimate. Moreover, a justified objection should show that endorsing collective equality will induce unjustified violence. This may be true if collective equality supports the granting of benefits that the groups are otherwise not entitled to. I argue that the opposite is true and that collective equality provides a required correction to the international normative system by providing principles to guide negotiated agreements between

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ethno-national groups and states, and thus, hopefully, also contributes to reducing the use of violence. Indeed, collective equality supports the granting of recognition to national collectives that are not yet recognized as entitled to self-determination. According to existing international law, national collectives are not recognized as having a right to self-determination or a right to specific institutional arrangements of self-rule (Chapters 3 and 9). Under this legal-normative regime, the adoption of power-sharing arrangements and autonomous regimes for national minorities, if coming only after violent struggle, can be said to be rewarding violence. Unfortunately, this is the current state of affairs, as Kymlicka harshly puts it: In virtually all of the cases where the UN has endorsed autonomy for national minorities, it is after the minorities resorted to violence. By contrast, where national minorities have peacefully and democratically mobilized for autonomy, they typically receive no support from the international community and, instead, are told that international norms on the rights of minorities do not recognize a right to autonomy. (Kymlicka, 2007b, 20, 31)

Sadly, empirical reality shows that it often takes armed struggle to replace an exclusionary regime (Wimmer, 2018a, 264). Endorsing the concept of collective equality should be seen as amending this undesirable situation by reaffirming the right to self-determination of national groups on the one hand, and simultaneously addressing legitimate concerns of majority groups that are not attended to under the current legal regime.7 Therefore, framing the problem as rewarding violence is actually misleading, as the problem is in the current normative and legal international framework, which deprives these collectives of recognition and subsequently pushes them to resort to violence in order to advance what, under considerations of justice, should be acknowledged as a justified claim. 8.4.2  Legitimizing Ethno-nationalist Politics The risk emanating from providing legitimacy to ideologies, political practices, and institutional arrangements that support or promote ethnic chauvinism and feelings of superiority is indeed serious. However, nationalism and ethno-nationalism, as argued earlier, should not be reduced to an undesirable 7

Legitimate concerns of majorities include their interest in not being dominated by minority interests, i.e., that the new rulers will not just simply “turn the tables” and exclude them from national government (Wimmer, 2018a, 264).

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and dangerous phenomenon, as it entails the fulfillment of important interests of individuals and communities and provides favorable background conditions for democratic institutions. The problem with ethno-nationalism should therefore be reevaluated to enable the normative framework to capture and consider not only its dark side, but also its brighter side. While aggressive and racist appearances of nationalism must be banned and prevented, the relevant questions should ask what the best ways are to avoid or diminish its negative aspects without undermining the positive outcomes. Specifically, scholarship needs to ask whether this aim can be better achieved by rejecting ethno-nationalism altogether, as formally advocated by traditional liberalism and by many liberals, or alternatively by accommodating its legitimate portions while rejecting those parts that negate equal respect of other such groups and individual basic rights, as advocated by the framework of collective equality. The empirical examples explored in this book support the argument that collective equality provides a more realistic, principled approach for preventing the undesired appearances of ethno-nationalism in situations of deeply divided places. Notably, granting recognition to ethno-national identity reflects dominant political practice, including in Western European counties, which is often overlooked. While ethnic identity does not have official political relevance in Western democracies, unofficially it does (Makkonen, 2012, 18). For various reasons this informal political relevancy benefits the majority national groups. In the European context, the recognition and protection of the majority national identities are done obliquely, for example by the Lisbon Treaty, according to which “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” (see also Claes & Reestman, 2015). Thus, it is not ethno-nationalism as such that is politically and morally rejected, but rather the threats it imposes on stability and the existing state structure as well as to members of minority groups. Instead of objecting to ethno-nationalism altogether, a more useful approach would seek to provide guidelines for the recognition of such groups that enable the accommodation of national and ethnonational diversity, while considering domestic and international stability. 8.4.3  Legitimizing Unfair Agreements Signing peace agreements between rival groups is a central feature of contemporary peacemaking and conflict resolution (Bell, 2008, 27–31).8 8

For defining “peace agreements” I use Bell’s definition, according to which “peace agreements are documents produced after discussion with some or all of the conflict’s protagonists, that address militarily violent conflict with a view to ending it” (Bell, 2008, 53).

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However, typical situations of ethno-national conflict involve inequalities in power between the sides to the conflict. Consequently, a serious concern is that the agreement as a whole and its specific terms will reflect the imbalance of powers between the parties at the time of the agreement. But does endorsing collective equality raise or lessen the risk to such unfair agreements? As a matter of political justice, a valid agreement is an agreement that has been accepted between free and equal parties. This means that we should exclude unfair bargaining advantages over others, threats of force and coercion, and deception and fraud. In practice, however, power differences are often utilized by the stronger side and have effects on the terms of peace, which might be considered – at the time of signing or in a later stage – as unfair. As a matter of law, and assuming for the moment that peace agreements qualify as international treaties,9 even agreements that embody the extreme power differences between the sides are unlikely to provoke viable claims for annulling or renegotiating them. According to the Vienna Convention on the Law of Treaties, 1963, grounds for invoking the voidability of a treaty include an essential error or fraud (Articles 49–50). Coercion by the threat or use of force or a conflict of the treaty with a peremptory norm of international law is mentioned as grounds for the treaty being invalid (Articles 52–53). Other unfair situations, including advantages caused by extreme power differences between the sides, are not regarded as having legal effects (Scott, 2008; Craven, 2005). At the same time, it has been recently argued that where gross inequalities have developed during the implementation phase, relying on the principle of substantive equality may support a demand for renegotiation (De Jonge, 2014; Peters, 2018). Endorsing collective equality as a guiding principle for peacebuilding and peace negotiations seems to contribute to the desired process and outcome of reaching an agreement between free and equal partners, which also promotes their substantive equality in the provisions of the agreement itself. Nevertheless, the risk of unfair agreements, and subsequently the risk of unfair institutional and constitutional arrangements, endures. One way of accommodating such concerns can be by considering leaving some parts of the agreements as provisional or at least open to renegotiation. What seems advisable is refraining from falsely presenting specific institutional arrangements as eternally valid. Thus, if politically possible, such agreements and their sections that address the constitutional provisions 9

For the great difficulties of their classification, see Bell (2008, 127–143).

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should entail identifying different conditions and procedures for renegotiation. The capacity of power-sharing arrangements to be adapted over time has been found to provide an important element for their success (Bodson, 2018). This openness to changes of previous agreements and constitutional arrangements to better address the needs and concerns of the present seems desirable, and also as reflecting contemporary peacemaking and constitutional practices (Elkins et al., 2007; 2009; Biagi, 2020; Skowronek & Orren, 2020). 8.5 CONCLUSION

In Chapter 7, I attempted to sustain my argument that the principle of collective equality is supported by considerations of justice when applied to deeply divided places. In this chapter I attempted to show why endorsing this principle should be regarded as realistic (i.e., presenting a realistic utopia), and advisable from a pragmatic point of view. The three cases of Northern Ireland, Bosnia and Herzegovina, and Cyprus provide ample examples of the ways in which collective equality plays out in the real experiences of peacebuilding, peace negotiations, and peace agreements, as well as supports the prediction that equality characterizes the kind of relations to which self-respecting national groups can agree. These three cases reveal different ways in which the four dimensions of collective equality – equality in redistribution, representation, recognition, and negotiations – have been implemented (or have not). Indeed, illustrations from the three processes demonstrate both the difficulties of endorsing the criteria of equality and the significant role equality plays in the discourse about peace. In the relatively successful peace process of Northern Ireland, we saw the significance of the multidimensional understanding of the concept, including public goods provisions (equal redistribution), cultural and national status (equal recognition), and political inclusion (equal representation). In the Bosnia and Herzegovina and Cyprus cases, we saw how peace negotiations concentrate on political equality but seem to neglect the other dimensions of justice. In Bosnia and Herzegovina, political equality manifested in equal representation and in the equal distribution of political powers enabled a peace agreement, but required an intense international intervention. We also saw growing inequality in the economic dimension (although not necessarily along the ethno-national divide) and lack of mutual respect. In Cyprus, although it is clear to the negotiation parties that peace can only be based on equality

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among the communities, socioeconomic gaps, lack of mutual recognition, and the absence of ongoing relations across the ethno-national divide seem to be stumbling blocks to agreement. Building on empirical research documented in different strands of literature, I further substantiated the argument that endorsing collective equality is advisable for reducing the likelihood of violent conflict and for increasing the likelihood of durable peace characterized by political inclusion. I concluded the chapter by engaging with three possible objections to the idea of collective equality.

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9 Collective Equality and International Law

9.1 INTRODUCTION

Chapters 7 and 8 introduced the concept of collective equality and showed why, from deontological and consequentialist considerations, collective equality should be endorsed as a guiding principle for theorizing justice and peace in deeply divided places. This theoretical framework changes how tension between power-sharing arrangements and human rights is viewed: Instead of a dilemma of peace versus justice, it is framed as between two conceptions of justice as we evaluate power-sharing and other collective measures as a way for promoting justice (in addition to peace). In this chapter, I aim to bring the collective equality framework into the legal debate and to explore its key implications for human rights law. I aim also to offer an alternative way to mitigate the tensions between existing international law (ICCPR and ICESCR, Article 1) and contemporary peacemaking practice, which is more apt to the contemporary task of international law – regulating disputes and conflicting demands made by ethno-national groups. This proposed framework aims to contribute to an already happening shift, from a state-centered interpretation of the right to self-determination to a more nuanced and substantive understanding of that right as an international legal right of peoples to secure their freedom and equality. My proposed reading of the right to self-determination is based on two central ideas. First, understanding the nature of the right to self-determination not as a “trump card” – a right to a new independent state and hence to a right to secede – but as a right that can be respected in different ways. Second, understanding peoples – the subject of the right to self-determination – as national collectives. Such national collectives may include existing minority groups, majority groups, or the entire population of a state, depending on the actual existence of a national group. Hence, the right to self-determination belongs 255

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both to minority/nondominant groups as well as to majority/dominant groups. By empowering both groups, the proposed reading wishes to update the right to self-determination to meet the challenges of today – the task of transforming the type of relationships between closely related rivals, from relations often marked by domination to those among equals within a system of ongoing social cooperation. While the statist interpretation of the right to self-determination may have been adequate to the historical task of overcoming colonialism, it seems inadequate to address the contemporary regulatory task of international law – resolving conflicts between conflicting national groups, which are bound together, whether they like it or not. Hence, the contemporary task of the right to self-determination should be to encourage dialogue and more fruitful negotiations and to diminish the necessity or advantages to both sides of resorting to violence. According to my suggested reading, the primary aim of this right is to secure equal and nondominating relations between peoples, while enabling the balancing of conflicting rights and other justified interests. Such an understanding revalidates the recognition found in the original international texts of an equal collective right to self-determination. Furthermore, it opens the door to consider, through dialogue and negotiation, the different ways the right to self-determination can be exercised in practice, while giving due regard to other interests and rights – of groups and individuals – affected in any given situation. The chapter starts by briefly summarizing the international law of selfdetermination and contemporary approaches to alternative interpretations. Despite an abundance of new approaches, the element of equality among self-determining collectives has hardly been discussed. By reintroducing equality (between self-determining collectives) into the interpretation of the right to self-determination, the right regains characteristics of a human right, instead of a legal rule. Thus, the suggested reading I present here develops in three steps: It starts by validating the ordinary meaning of the term “self-determination of peoples”; continues by establishing equality among these peoples as the principle delimiting the right’s scope in a given context; and last adopts a legal framework for balancing, known from other human rights, in which due regard is given to the competing rights and vested interests of states and other actors. In the chapter’s last part, I turn to reevaluating the tension between individual human rights and national self-determination, particularly as it is implemented in some forms of power-sharing. In doing so, I aim to show how endorsing collective equality affects the legal appraisal of existing power-sharing arrangements and informs future ones.

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9.2  IN BRIEF: THE INTERNATIONAL LAW OF SELF-DETERMINATION

9.2.1  The International Norms of Self-Determination While the origin of the idea of self-determination goes back to the American Declaration of Independence (1776) and the French Revolution (1789), it was incorporated in a multilateral treaty for the first time in 1945, when it was included in Article 1(2) of the UN Charter, as one of the UN goals. The rather weak legal form used by the charter was transformed in the Declaration on the Granting of Independence to Colonial Countries and Peoples, adopted by the UN GA in December 1960. It was then included in Article 1 of the two human rights covenants in 1966 as a collective human right: its realization was given as essential to the enjoyment of all individual rights. In accordance with its universal application, Article 1 of the ICCPR and ICESCR starts with the straightforward wording that “all peoples have the right of ­self-determination,” and, unlike the previous declaration, it does not limit the right only to colonial countries. The right’s importance as a foundational element of international human rights law has been emphasized by the UN HRC in its general comment from 1984: The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self-determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants. (Human Rights Committee, General Comment no. 12, 1984, Article 1)

The human rights covenants, however, do not define what is meant by the term peoples; that is, which groups should be recognized as peoples afforded a right to self-determination. Subsequent legal instruments included a clear legal proclamation that the right applied to peoples under foreign rule; the application of that right outside the postcolonial context, however, remained unclear and highly controversial. The Friendly Relations Declaration stipulates: “All peoples have the right freely to determine, without external interference, their political status and to pursue their economic, social and cultural development.” While the declaration provides, in very clear and decisive provisions, the right of colonized peoples to exercise and work toward freedom from foreign rule, it is no less decisive in prohibiting harming in any way “the territorial integrity or political unity of sovereign and independent States.” Between the 1970s and the beginning of the new millennium, the right to

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self-determination as a legal right of peoples under a colonial or foreign occupation became acknowledged as part of customary law (Western Sahara, 1975, ICJ Reports 12, para. 54; Construction of a Wall in the Occupied Palestinian Territory, 2004, ICJ Reports 136, para. 118). However, the question of whether and how the right applies to the context of independent sovereign states remained unclear and highly debated between commentators. A significant development was made in 2007. The DRIP formally recognized indigenous peoples (not defined by the declaration) as having “the right to self-determination” (Article 3) – but only internally: The declaration limited the authorized modes of self-determination to “autonomy or self-government in matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions” (Article 4, DRIP). While the DRIP represented a big step forward for indigenous peoples, it sharpened the lack of legal coherence within international law, as it did not grant such recognition to other significantly similar minorities – notably national groups (Kymlicka, 2007b). Thus Article 1 of the two human rights covenants, ICCPR and ICESCR, remains the main instrument conferring a universal right to self-determination. This legal instrument proclaims, within a piece of binding international legislation, the right of all peoples to self-determination. The question of who those “peoples” are is, therefore, central. 9.2.2  The Statist/Territorial Interpretation of Self-Determination The fundamental question of which “peoples” are entitled to selfdetermination in the context of independent sovereign states continues to be at the center of legal debate. The debate revolves around two understandings of self-determination: as the claim of a territorially defined people or as the right of a people – defined according to ethnic, cultural, linguistic, or other terms – to freely govern themselves. A leading opinion is that the former understanding represents existing international law. According to Yuval Shany: “The right to self-determination of peoples and its realization in accordance with the uti possidetis principle suggests that ‘people’ has been defined in international law, in effect, based upon considerations of geography, not demography” (Shany, 2014, 236). Jack Donnelly has articulated it in even harsher terms: “Once the struggle for formal decolonization has been successfully concluded, ‘peoples,’ despite the clear meaning of the term, has been taken to mean states” (Donnelly, 1993, 133; see also Kohen, 2006; Castellino, 2014; Akram, 2021). Many legal commentators continue to affirm an interpretation of the right to self-determination as equivalent to a legal rule conferring a right to external self-determination, which can be self-executing. In doing

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so, however, adherents of this view restrict the right to self-determination to accepted situations of colonialism and foreign occupation. Exceptions to this general interpretation include successful secessions (as in the case of Bangladesh) and disintegration of existing states (such as Yugoslavia). In other words, while international legal texts emphasize the self-determination of peoples, the norm of territorial integrity gained the upper hand in practice and directed how the whole question of self-determination was handled (cf. Weller, 2005, 26–27). Within Africa, however, the African Charter on Human and Peoples’ Rights clearly recognizes the right of peoples – a human collective – to selfdetermination, when used in contradistinction to their state (Kiwanuka, 1988). This conceptual division between a people and their state has been endorsed by the African Commission on Human and Peoples’ Rights, allowing for the right’s implementation with various modes of internal self-determination but not secession (Kevin Mgwanga Gunme et al. v. Cameroon, 2009, ACHPR 266/03). However, to authorize secession, the African Commission requires a proof of “concrete evidence of violations of human rights to the point that the territorial integrity of the State Party should be called to question, coupled with the denial of the people, their right to participate in the government as guaranteed by Article 13.1” (Kevin Mgwanga Gunme et al. v. Cameroon, para. 190–194; see also Hannum, 1996, 46–47). 9.2.3  Emerging Approaches in the International Law of Self-Determination Despite the conservative legal interpretation, groups inspired by the political concept of self-determination have continued to demand partition, secession, or autonomy (Cassese, 1995, 339–340) and have continued to provoke a reinterpretation of the right (Wheatley, 2005). The need to respond to these ongoing demands and subsequent conflicts has led commentators to explore additional ways to address the demands of “peoples” without undermining state sovereignty and territorial integrity (cf. Bell & Cavanaugh, 1998, 1352; Reuter, 2008). While the debate and controversy between commentators continue, alternative interpretations to the statist-oriented approach to selfdetermination attract growing support and provide potent building blocks for a coherent interpretation of the right to self-determination. From these, I identify and focus on four emerging potent approaches. First, a people entitled to self-determination and the state they reside in should be differentiated (Kiwanuka, 1988; Tomuschat, 2006, 33–34; Mégret, 2016). Second, external and internal self-determination should be viewed as different modes of implementing the right of self-determination, varying between internal (including

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participation in the decision-making processes of the state, federalism, and other forms of political autonomy) and external modes (seceding from the parent state to establish a new independent state or to join an ethnic kinstate) (Raic, 2002; see also Cassese, 1995, 350–353). Third, a people have a right to secede from the parent sovereign state in cases of severe, widespread, prolonged, and unremedied human right violations – the idea of remedial secession (Buchheit, 1978; Tomuschat, 2006, 41; Cassese, 1995, 359–360; Buchanan, 1991; 2007; Tancredi, 2006; 2014; Summers, 2010; Howse & Teitel, 2013; Van den Driest, 2013; Peters, 2014; Laurinavičiutė & Biekša, 2015). Fourth, self-determination should be conceptualized as a procedural notion, its essence captured by a “right to be heard,” or as the ICJ in the Western Sahara case has articulated it, “the need to pay regard to the freely expressed will of peoples” (Klabbers, 2006, 194). Other commentators emphasize the procedural elements in the creation of states (Tancredi, 2006; Peters, 2011). An illuminating example to the procedural elements of self-determination is found in the Canadian Supreme Court Secession of Quebec case (Klabbers, 2006, 197). The ICJ advisory opinion regarding the legality of the declaration of independence by Kosovar Albanians (the Kosovo AO, ICJ Reports 2010) enhances this understanding of the right as a legal principle with a large procedural-participatory core.1 The wealth of contemporary scholarship on self-determination presents multiple practical and legal ways to maintain the relevancy of the norm of self-determination also in postcolonial contexts. Yet, the alternative ideas just presented, especially the continued sharp distinction between internal and external modes of self-determination and the lack of clarity about the required justifications for according self-determination in either of its forms, remain quite fragmented and seem to lack any unifying theory.2 Moreover, contemporary legal discussions give surprisingly little attention to the possible implications stemming from the requirement that the right to self-determination be an equal right of all peoples. The equality requirement, whose application is understood to be confined either to the colonial era – regarding relations between Europe, on the one hand, and Africa and Asia, on the other (Berman, 1988, 65) – or to sovereign equality, does not seem to play a significant and 1

2

See Chapter 3 for a short review of the ICJ Kosovo AO. For a critical appraisal of the AO, see Howse and Teitel (2013). Despite having an opportunity to promote new understandings of the right, and in particular the idea of remedial secession, the ICJ decided to refrain from doing so. However, and importantly, the Court also chose not to reject these ideas either, in what seems to be a deliberate decision to leave the door open for possible legal developments. For approaches that offer a comprehensive answer to the question of secession, see Buchanan, 2007; Howse & Teitel, 2013.

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clear role within contemporary discussions (Raic, 2002, 226–227). However, the fundamental characteristic as an equal right of all peoples (like any other human right) can play a crucial role in a contemporary interpretation of ­self-determination as a legal right within the framework of international human rights law. 9.3  “PEOPLES” THAT HAVE THE RIGHT TO SELF-DETERMINATION

Reading the right to self-determination in light of the principle of collective equality is based on three central elements: (1) understanding peoples as national collectives, which may be distinct from the state’s entire population; (2) validating the equal rights of peoples, informed by the concept of collective equality; and (3) adopting a more robust procedural approach for balancing justified claims to self-determination against other justified but conflicting interests of individuals and states (particularly their interest in maintaining political stability and securing their territorial integrity).3 Thus, instead of totally denying or rejecting one conflicting interest, legal balancing aims to accommodate, to the maximum extent possible, all justified interests. The main task here is to adopt and adapt public law techniques aimed at balancing conflicting rights and interests, and thereby replace the traditional understanding of self-determination and the norm of territorial integrity based on dichotomic “all-or-nothing” rules (Peters, 2011, 102). Public law techniques for balancing seem appropriate with regard to the right to self-determination as they are customarily exercised by international, regional, and national judicial and semijudicial bodies to evaluate rights-based claims. 9.3.1  Peoples as Political Communities Striving for Self-Determination Because of various concerns and interests, the term peoples in international law was detached from its ordinary-popular meaning of relating to (ethno-) national groups. It was instead infused with a new meaning – relating to the entire population within the bounded territory of a sovereign independent state or of a previously colonial unit. Since my foundational proposition is that the right of peoples to self-determination should be interpreted as relating to self-determining collectives, not necessarily defined by states and territorial borders, the major question to be answered is which social collectives 3

I focus here on the application of the right with regard to “peoples” in independent sovereign states. However, as Cassese has rightly observed (1995, 71–74), the law’s application in the cases of colonized and occupied peoples suffers from the same shortcomings and a similar legal approach can be used in these cases too.

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are to be recognized by positive international law as peoples entitled to self-determination. “All peoples have the right of self-determination.” This allegedly straightforward pronouncement alludes to the common usage, domestically and internationally, of the term peoples, equating it with nations, understood as national collectives aspiring to or practicing self-determination. This understanding of the term people over the statist/territorial understanding of it possesses the interpretive advantage of capturing the term’s more ordinary, popular meaning found in the international text (Vienna Convention, Article 31.1). However, opting for the “normal” understanding of the term peoples is not sufficient, as there is very little agreement as to the definition of a people (Mégret, 2016, 54). Aureliu Cristescu, the special rapporteur of the SubCommission of the HRC, suggested already in 1978 defining a people as “a social entity possessing a clear identity and its own characteristics. It implies a relationship with a territory, even if the people in question has been wrongfully expelled from it and artificially replaced by another population” (Cristescu, 1981). In contrast to this definition, which implies a people that already and unproblematically exists (cf. Mégret, 2016, 54–55) and hints at a primordial understanding of nationalism, the definition offered by the Unrepresented Nations and Peoples Organization (UNPO) Covenant emphasizes the collective will of the self-determining collective as its constitutive element: “A group of human beings which possesses the will to be identified as a nation or people and to determine its common destiny as a nation or people, and is bound to a common heritage which can be historical, racial, ethnic, linguistic, cultural, religious or territorial” (UNPO, Article 6). The UNPO definition of peoples focuses on acquired, rather than ascriptive, characteristics. The emphasis on the will and actions of a group of human beings implies the contemporary consensus among researchers of ethnicity and nationalism, highlighting the political functioning of nationalism and describing it as the outcome of a dynamic process of national boundary creation, driven by political actors and motivations (see Chapters 1 and 2; Mégret, 2016, 55–56). Aware that a precise and noncontroversial definition for the term people might be beyond reach, I suggest adopting the definition used here earlier for national groups as a tentative definition for peoples. Accordingly, a people, as a national collective, is to be understood as a sizable collective holding and acting toward political self-determination. Against possible criticisms that the suggested definition is based on somewhat circular reasoning and is too subjective (cf. Mégret, 2016, 56), I raise three points. First, the suggested definition is indeed highly subjective, but rightly so, aiming to take seriously the attribute of a self, in the self-determination concept. Interestingly, a common

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denominator of the groups currently recognized by international law as entitled to self-determination – peoples under colonial rule, peoples under foreign occupation, racially excluded groups, and the entire population of a state’s territory – is that none of them is “self ”-defined but they are rather defined by an external force or condition not of their own making. The subjective approach I suggest is justified and is in line with contemporary understandings of the actual phenomena of national groups – whether defined in civic or ethnic terms – as socially constructed. Second, although subjective, the definition includes objective foundations as it requires three conditions: that there be a distinguishable, sizable collective identifiable as a group; that the group has expressed a collective will and engaged in concrete actions (“hold and act”); and that those actions are directed toward obtaining some form of shared political powers, that is, political self-determination (De-Shalit, 1996). These objective conditions – for articulating a public demand on behalf of a people – may be identified, for example, from conducting democratic elections, referenda, or plebiscites (cf. Tancredi, 2006; Peters, 2011) or from the existence of a body representative of the whole people, such as a liberation movement known from processes of self-determination of colonized people (Cassese, 1995, 146–147). Including these objective conditions is justified both by “effectiveness” considerations (Raic, 2002, 50–52) and by considerations of justice as these are relevant to recognizing national groups’ right to self-determination (see Chapter 7; see also Mégret, 2016, 62–63). Third, the definition provides a useful criterion for distinguishing between peoples and other groups who do not possess or act toward self-determination. It also suggests that national collectives can be a state’s entire population, but they also can be groups currently deemed a “national minority” or “national majority” (cf. Dinstein, 1993, 224–225). Indeed, in reality we will not always find a sharp dichotomy between national groups and other types of groups, but rather a continuum. Yet, in many situations, where the group has manifested a strong will and considerable ability to be organized as a distinct, politically mobilized group and to be recognized as such, the distinctions are sharp and relatively clear. However, self-determination is basically a demand for appropriate distribution and management of political powers, always entangled with a demand for recognition. Consequently, and furthermore because every case where self-determination is pursued is highly complex and unique, it is necessary to engage in negotiations that produce a “custom-fit” set of political arrangements, designed according to actual demands, needs, and overall circumstances. Indeed, as Mégret has rightly observed, the process of self-determination is necessarily relational and dialectic (2016, 60), intimately

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dependent not only on the justified interests of the self-determining collective, but also on the justified interests of other national groups and individuals that will be affected. 9.3.2  Reinterpreting the International Legal Texts Can a reading that equates “peoples” with national collectives be regarded as a possible interpretation of positive international law, in conformity with established rules of interpretation? As already mentioned, Article 1 of the two human rights covenants starts with the straightforward wording that “all peoples have the right of self-determination.” While the covenants do not define the term peoples, they do use peoples and states in distinct manners. The term peoples is used in the covenants only four times: in ICCPR in Articles 1 and 47 and in ICESCR in Articles 1 and 25. In all instances, the term is used only in relation to the right to self-determination, entitling peoples “to freely determine their political status and freely pursue their economic, social and cultural development” (common Article 1) and to “enjoy and utilize fully and freely their natural wealth and resources” (Articles 47 and 25, respectively). In comparison, the term states is clearly used in reference to internationally recognized states, whether states parties to the convention or not. Such a distinct use seems to imply two different meanings. Furthermore, unlike previous declarations, the covenants do not restrict the right of self-determination to colonized peoples. The Friendly Relations Declaration, however, seems at first glance to impose a clear impediment on understanding peoples as national collectives and as compelling an equation between a people and the entire population of a state. Because of its importance, I present here the full relevant paragraph from the declaration: Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour. (emphasis added)

In this safeguard clause, the declaration refers to “the whole people belonging to the territory,” allegedly implying that in sovereign and independent states there is only one people. Furthermore, from the sentence it is assumed that in such situations the right to self-determination is respected when there is “a government representing the whole people belonging to the territory

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without distinction as to race, creed or colour.” In legal commentary, and according to what has become the common understanding, this paragraph from the Friendly Relations Declaration was construed to imply two distinct yet interrelated things: first, that there is only one people within a state; and second, that the people exercise their right to self-determination whenever there is a representative government. A further restriction was added by interpretation and endorsed also in scholarly writings: The only exception recognized by this rule is contingent on extreme situations where the government is both racist and exclusionary, such as under Apartheid in South Africa. Accordingly, and with no enthusiasm, Patrick Thornberry reaches the conclusion that “whether one discusses ‘internal’ or ‘external’ self-determination, the point is that ‘whole’ territories or peoples are the focus of rights, rather than ethnic groups, Cassese’s analyses of ‘internal’ self-determination should not be taken to fragment the meaning of ‘people’” (Thornberry, 1989, 877). Indeed, Cassese concludes that states had systematically insisted on blocking external self-determination as an option after statehood had been realized and thus that the right of self-determination can be developed only through the concept of internal self-determination, also for pragmatic reasons (1995, 350). I argue that this traditional interpretation of the Friendly Relations Declaration as an international text is not self-evident, as it subjects the entire interpretation of the right to self-determination to the norm of territorial integrity. Instead, the interpretation of the legal text should better respect the right to self-determination and human rights more broadly. Such a change of interpretation, I argue, is required and justified by the substantive transformation of international law – from a state-centered legal system to a human-centered one. According to Anne Peters, “It has become clear that the normative status of sovereignty is derived from humanity, understood as the legal principle that human rights, interests, needs, and security must be respected and promoted, and that this humanistic principle is also the telos of the international legal system. Humanity is the A and Ω of sovereignty” (2009, 514; see also Teitel, 2011). Moreover, subsequent to the ICJ’s Kosovo AO, the traditional interpretation, which subjects the entire interpretation of the right to self-determination to the norm of territorial integrity, clearly fails to distinguish between a justified and superfluous restriction of that right. The traditional interpretive choice is clearly unnecessarily restrictive, as it derives the interpretation of the entire right to self-determination from a specifically defined exception to the competing norm. To put it another way, instead of setting the relevant interpretive focus on the right to self-determination, as enshrined in the human rights covenants, the traditional interpretation has unjustifiably adopted the

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norm of territorial integrity as setting the overarching interpretive agenda and consequently distorted the entire legal right. Indeed, the text of the Friendly Relations Declaration qualifies the right to self-determination with a clear intention to delimit its scope. However, it does so within the concrete legal context of a conflict between two legal norms: the right to self-determination and the principle of territorial integrity. The obligation of states to respect the territorial integrity of other states is a central issue covered and promoted by the Friendly Relations Declaration, which is not covered by the human rights covenants. Hence, it is reasonable that with regard to the application of the territorial integrity principle, the declaration includes specific provisions, thus justifying the narrower interpretation. Nonetheless, the territorial integrity principle, as declared by the ICJ in the Kosovo AO, “is confined to the sphere of relations between States” (para. 80) and hence does not apply to the internal relations between a state and its people or peoples. Thus, I would argue, the principle of territorial integrity – pronounced in the Friendly Relations Declaration, including the abovementioned “safeguard clause” – should not be used to inform a general interpretation of the right to self-determination that is more restrictive than the one implied by the human rights covenants themselves. However, this is exactly what the traditional interpretation does: It uses the territorial integrity norm and a specific clause within it as a general rule of interpretation, which restricts peoples’ right to self-determination, with regard to both its subject (how “peoples” are to be defined) and its scope (what is included within the protected scope of self-determination). I therefore argue that, following the Kosovo AO, this restrictive interpretation is not necessary and unjustifiably curbs a fundamental human right. In other words, contemporary interpretation of the right of peoples to self-determination enshrined in the human rights covenants should reject the use of the Friendly Relations Declaration, including the safeguard clause, as a general interpretive tool of the entire right, since the norm of territorial integrity has been declared to be confined to the sphere of state relations. The result should allow for the right to selfdetermination to be revalidated as belonging to peoples as human political communities, which is consistent with the human rights treaties. In addition, I also advocate for a less restrictive interpretation of the safeguard clause with regard to the sphere where it does apply; that is, between states. When the clause does apply, the situation is of conflict between the two legal norms of self-determination and territorial integrity. While a more elaborate suggestion for balancing between the two norms is developed later in the chapter, here I note only that a revised interpretation of the clause might be advisable to reflect the changing understandings of coercion and

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domination. Accordingly, it can be argued that governments engaged in longstanding and systemic discriminatory practices targeted against identifiable portions of their population (and not only in extreme cases of peoples living under racist regimes) should be viewed, according to contemporary understanding, as nonrepresentative governments. Accounts of remedial secession have developed suggestions for reinterpretation; these restrict such remedies to extreme cases of human rights violations and only as a last resort (van den Driest, 2013; Summers, 2010; Laurinavičiutė & Biekša, 2015). 9.3.3  Peoples and States Recognizing a portion of a state’s population as entitled to self-determination seems to require a significant reshuffling of how states are usually perceived and of nation-state–territory relations as embedded in the concept of the nation-state. Thus, while I promote a nationalist understanding of the term peoples, I do not endorse “a nationalist understanding of the state.” By this phrase I refer to views frequently held by dominant national groups that see the state as “their” state – that is, their “nation-state” – even when the dominant group does not form the state’s entire population, or when the state nationality is not articulated in a way that can accommodate all the citizenry within it. This was the case, for example, with how Northern Irish Unionists perceived Northern Ireland, or how Israel is defined (Nationality Law, 2018) and perceived by many Israeli Jews. What I do endorse is viewing the state as the overall political structure within which that people, or peoples, fulfill their self-determination. Hence, the people may “belong” to the state and may pursue, interdependently through the state’s structures, their collective development, but the state does not “belong” to nor is it “owned” exclusively by each of them. Accordingly, the state and its public goods are not theirs alone to be utilized, but rather are to be shared together, with the other peoples – in the case of a multinational state – and always with the entire citizenry. Cassese has termed this suggested move the “separation of ‘State’ and ‘nationality,’” imagining the transformation of states as nonnational or multinational (1995, 365). Considering the common situations under which self-determination demands are usually made, the option of nonnational states, such as the notions of civic or neutral states, seems a less likely possibility (although legitimate if they indeed represent the choice of the people or peoples). Hence, a more realistic option in deeply divided places, which are characterized by conflicting demands for self-determination, is moving to multinational states or political organizations within which the relevant peoples can be organized in common institutions and within which they can participate as equals.

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Multinational states are not a new phenomenon and can include a variety of models and formats, both democratic and not democratic (for example, Switzerland and Yugoslavia). Thus, the proposition for distinguishing peoples as nations from the state and from the entire territory of the state should not pose any new conceptual or practical problem. The separation of state and nationality allows new possibilities not only internally, within the state, but also externally, across the borders of the state. Multinational arrangements can include one state, but also two or more states, through confederal arrangements supporting national identities across state borders. Such cross-border arrangements offer an institutional framework that acknowledges and accommodates bonds between national groups and their compatriots on opposite sides of international borders. I recall that such an internal/external duality is not only a common feature of ethno-national conflicts, but also a common feature of peace agreements. 9.4  INTRODUCING EQUALITY TO SELFDETERMINATION LAW

Recognizing a people’s right to self-determination – to “freely determine their political status and freely pursue their economic, social and cultural development” – does not necessarily mean that they can exercise that right independently; that is, one-sidedly. Accordingly, a right, including many recognized individual human rights, does not necessarily entail its being executed by the right holder in isolation, independently of others. In that sense, fulfillment of internal and external forms of self-determination do not differ much. Both depend on peoples succeeding in carving out political powers, in relation to the other side of the conflict (whether a violent conflict or one contained within political debate). In the case of internal forms of self-determination, changes usually depend on the self-determining people’s ability to bring necessary constitutional changes within the parent state. When external forms of ­self-determination are sought, fulfillment depends on their success in securing recognition for the existing state’s partition or recognition from the international community. A people’s right to demand a change in their political status is not absolute or unlimited, and its actual scope should be delimited by the right to self-determination as equally available to all peoples. Whereas equality is an immanent characteristic of any right, it is also established as part of the international texts on self-determination – the two human rights covenants and the Friendly Relations Declaration. I understand the scope of the right itself as delimited by the equality requirement, while its practical application depends also on the balancing of the right with other justified interests; primary among

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these are the norm of territorial integrity and the obligation to respect other human rights. Introducing equality to self-determination law raises several questions: Should the equality requirement refer to all the world’s peoples? If so, how can such an equal right be measured, and how should it be measured? My answer is that the right is indeed obliged to be conferred on all peoples. However, respecting this general obligation does not mean that a particular people’s right to self-determination depends on the right’s actual fulfillment by all other peoples. This approach conforms with how the right has been implemented so far. While the right is accorded to all peoples, its actual implementation is applied to each case according to its merits and concrete circumstances. A people’s right to self-determination depends upon the actual possibility of other peoples, affected in practice by that people’s decision and actions, to exercise an equal right to self-determination. Thus, I suggest that the scope of the right to self-determination, as a right of peoples in contradistinction to their state and vis-à-vis neighboring peoples, is given by the concept of collective equality as defined earlier. 9.5  BALANCING SELF-DETERMINATION CLAIMS AND COMPETING INTERESTS

9.5.1  Existing States’ Structures as a Starting Point for Self-Determination Claims The right to self-determination, understood as entailing a people’s right to choose their political status freely, can take a variety of forms – from partial or territorial autonomy, to power-sharing regimes, a new state, or a union with an existing state. The different ways of implementing the right have been explored quite extensively in the literature on self-determination and minority rights and within different strands of political science, including power-sharing scholarship, for example. This literature offers a wide array of possibilities for use in different circumstances. According to Article 1.3 of the ICCPR and ICESCR, states’ parties are obligated to promote the realization of the right of self-determination and to respect this right. Following the interpretation adopted by the UN HRC in its General Comment No. 12 from 1984, the right to self-determination is assumed to be exercised by and via the parent state (a prima facie assumption). Hence, as long as that state exercises an inclusive political system, within which the entire population’s participation – in elections, government, and public offices – is promoted and secured, the right should be regarded as duly respected. Thus, I suggest viewing the existing

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state structures as the starting point from which self-determination claims are made and negotiated. As the right to self-determination should be understood as having a continuous nature (Raic, 2002), people are entitled to demand a change to the existing arrangements in pursuing self-determination. When a people raise a legitimate claim to change the existing political status – qualified as a genuine expression of the people’s will, which does not exceed their right to selfdetermination according to the principle of collective equality – the parent state’s obligation is to respond adequately. Since the demanded changes – which may include a change to the state’s constitutional arrangements or a partition of the state’s territory – cannot be done unilaterally and independently, an adequate state response should be engagement in dialogue and negotiations in good faith, paralleling and building on what has been called by Jan Klabbers “the right to be taken seriously” (Klabbers, 2006; see also Peters, 2011; Mégret, 2016). The Secession of Quebec case exemplifies judicial recognition of a state’s obligations to negotiate a claim to self-determination in good faith when a group holds and acts toward the fulfillment of that right and demands a change to the status quo. The Secession of Quebec decision demonstrates two procedural requirements: first, that a people express a qualified demand to change their political status as part of exercising their right to self-determination; and second, in turn, that such a qualified demand triggers a parallel obligation of the state to engage in good faith negotiations. These qualified demands on both sides are also in line with three of the basic principles of international law, namely the peaceful settlement of disputes, cooperation, and good faith. As Cassese has argued, these principles “make it incumbent upon States involved in disputes concerning self-determination to avoid armed conflict and instead resort, in good faith, to direct negotiations or mediation or conciliation” (Cassese, 1995, 336). This path is regarded as especially needed when the factual situation is so complicated that no clear-cut and easy legal solution exists, as is usually true for common cases of ethno-national conflict (cf. Steiner, 1990, 1545). The UK’s recent departure from the EU – although considerably different from a national group raising self-determination claims – demonstrates vividly the necessity for both sides to engage in intense, good faith negotiations when rearranging a national and international partnership. Protecting human rights and including a state’s entire population are ongoing obligations of the state. However, once an adequate self-determination demand has been raised, successful implementation of the right to selfdetermination should pursue agreement between the sides. It is indeed a wise policy that the legal framework and judicial intervention would aim to

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facilitate the process of dialogue as a way to reach successful agreements that will be subsequently implemented. 9.5.2  Balancing Self-Determination and States’ Interests The right to self-determination, when invoked by a group demanding autonomy or secession, conflicts with the parent state’s sovereignty, internal unity, and territorial integrity. The close connection between state stability and territorial integrity was proclaimed by the ICJ in the Burkina Faso judgment: In fact, however, the maintenance of the territorial status quo in Africa is often seen as the wisest course, to preserve what has been achieved by peoples who have struggled for their independence, and to avoid a disruption which would deprive the continent of the gains achieved by much sacrifice. The essential requirement of stability in order to survive, to develop and gradually to consolidate their independence in all fields, has induced African States judiciously to consent to the respecting of colonial frontiers, and to take account of it in the interpretation of the principle of self-determination of peoples. (Burkina Faso v. Republic of Mali, ICJ Reports 1986, 84)

According to this approach, adopted by the ICJ in 1986, preserving existing state boundaries is essential to supporting stability in Africa. Since stability reflects an important international and national interest, it was held to take precedence over peoples’ right to self-determination. As part of readjusting the right to contemporary circumstances, the balancing between selfdetermination and considerations of stability should include two components. The first is a factual and normative reappraisal of the conflicting norms and interests – that is, a renewed assessment of what stability actually entails and what is required to ensure it. The second component is a reappraisal of the way the balancing itself needs to be done. Here, I put forward a few remarks with regard to the first component, and a suggestion with regard to the second. In contrast to the assumption underlying the Burkina Faso decision, upholding historical borders may not be the best way to secure stability. Contemporary data shows that internal selfdetermination conflicts have become one of the dominant forms of mass political violence, frequently regarded as a global security problem (see Chapter 1). Furthermore, the tendency of states to totally deny internal groups’ demands for self-determination, without proper consideration and negotiations, and to prefer suppressing such demands is not necessarily the most pragmatic or reasonable strategy for responding to such demands. According to research, repression of groups’ demands for self-determination may succeed, but only if rigorously repressed and always at great cost (Lustick et al., 2004). Thus, even

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aggressive repression of demands for self-determination has been unable to eliminate the threat of secessionism. While the norm of territorial integrity was and still is essential to stabilizing international relations between existing states, it does not have the same effect internally. Furthermore, changing moral and legal standards, most significantly the rise of human rights, have altered international law’s focus and justification, from a state-centered to a human-centered legal system (Peters, 2009, 514; Teitel, 2011). These changes might also impinge on our views of what stability actually means. Should stability still be understood as the stability of the existing state system? Or perhaps it should now be understood as aiming to peacefully settle internal injustices and peoples’ (justifiable) claims as far as possible, even if these entail a change to the current state structure? Whatever results from a reevaluation of what facilitates stability and how it should be understood in practice, it is nevertheless expected and assumed that important state interests will conflict with peoples’ right to self-determination. Such state interests may include severe damage to the state’s economic interests, due to past investments, for example, made under the assumption that the territories remain with the state or due to the specific region’s special significance for the entire state. While all these considerations should not have a decisive impact in the sense that they do not justify a denial of the right to self-determination, they do imply the need for the careful conditioning of partitions. Hence, again, the legal framework’s fundamental contribution is found in the regulation and facilitation of the negotiation process. As a tool for guiding the sides in balancing the right to self-determination and competing states’ interests, I suggest the familiar legal test of proportionality, used in international, regional, and domestic legal systems. While the test varies according to the specific area of law in which it operates, it generally means that “a state’s acts must be rational and reasonable exercise of means toward achieving a permissible goal, without unduly encroaching protected rights of either the individual or another state” (Crawford, 2011, Article 1; for the role of proportionality in the interpretation of the ICCPR, see Christoffersen, 2009, 40–44; Human Rights Committee, General Comments No. 22, 25, 27, 29, 31). Such balancing is not confined to the specific balancing test to be adopted as it is embedded within all the stages of the interpretation introduced so far. Thus, the new balance is based on (1) how we understand the subject of the right of self-determination; (2) the scope of the right, given by the concept of collective equality; (3) the possible ways for implementing the right; (4) what constitutes a proper respect of the right; and (5) the way we approach a situation of conflicting considerations, and specifically whether we adopt a balancing approach.

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Only if we adopt complex – nonbinary – answers (such as those suggested here) to these questions will we achieve an applicable and useful balancing test aimed at optimizing competing interests. More generally, contemporary approaches to self-determination require us to view and evaluate the right not as a trump card – implying that the right is given priority over any other state’s interest – but rather as a right according to the more accepted approach of public law (Medina, 2016, 15–16). According to the latter approach, the right imposes an obligation on the state to respect it in the fullest possible way, while giving due consideration to other justified interests (Peters, 2011, 102). Similarly, conflicting norms, especially the norm of territorial integrity, must be reconceived as a principle and not as a rule predetermining existing state boundaries’ superiority over conflicting rights of peoples. Here again, the Kosovo AO has already made very important progress. It clarified that the territorial integrity norm is directed at shielding state territory only from other states and, at the same time, that the norm is not directed inward and cannot be invoked against an internal group. In doing so, the Court led the way to a renewed principled discussion. Within this discussion, there is a need to reevaluate which states’ interests are indeed legitimate and can justifiably be raised as requiring balance against a people’s right to self-determination. Indeed, the result of such reevaluation will be quite complex. Instead of a dichotomic answer – secession is either allowed or rejected – what should be sought is a balance between the equal right of peoples to self-determination, on the one hand, and stability, peace, and other vested state interests, on the other hand. Such balancing, done with the participation of the relevant actors (state and nonstate alike) and with the aim of maximizing respect for competing interests, may lead to many possible results. These may include, for example, a new electoral system; resource redistribution; the adoption of power-sharing arrangements based on consociational democracy, federalism, confederalism, or all of them together; and deferred secession (or not), dependent on time, process, cross-border cooperation, or other conditions. In practice, all such possible results have already been adopted to resolve selfdetermination conflicts. We saw these options used in the Northern Ireland and Bosnia and Herzegovina cases and suggested as a resolution to the Cyprus conflict (see also Weller, 2009; Wolff, 2009). However, many of these arrangements were reached due to the use of violence, which brought states and the international community to agreement to what otherwise would have been denied (Kymlicka, 2007c, 20; see also Mégret, 2016, 53). The approach suggested here provides a normative framework for a principled evaluation of conflicts of interest between national groups and parent states that can and should be used notwithstanding (and hopefully instead of)

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violence. Engagement with possible interpretations of the right to selfdetermination, such as the one proposed here, demonstrates vividly “how modern visions of international law, promoting rights of individuals and groups against the state, might clash with older visions that emphasize the role of the sovereign state for the protection of stability and peace” (Walter et al., 2014, 1). While the considerations of stability and peace remain, their concrete implementation and interplay with the right to self-determination must change to respond to contemporary real-world challenges and to reflect the prevailing moral and legal standards. 9.5.3  Assessing Infringement Claims When can a people claim that their right to self-determination has been infringed? Presumably, the answer should be simple. Following the suggested interpretation of the right and its required balance with other competing considerations, I would say that when a people demand a change of existing political status – a demand that does not exceed their right to self-determination according to the principle of collective equality – and this demand is not properly answered, it can be argued that the people’s right to self-determination has been infringed. At this point, the central questions seem to be connected to the procedural requirements for establishing the violation. First, how will a people’s collective be established and expressed? Second, how and when should it be concluded that a justifiable demand for self-determination that a people has raised was not properly answered (Peters, 2011, 107)?4 The interim conclusion that infringement has been proved (i.e., that denying the people’s demands was unjustified) can be rebutted, if other rights and protected interests can be brought to substantiate that justified infringement of the right. While staying at a general level of analysis, I refer to proportionality as a technique closely associated with the balancing of conflicting principles and as the most familiar test used by various courts and human rights bodies (Peters, 2011, 102). According to the proportionality doctrine, a reasonable relationship must exist between a particular objective and the means used to achieve that objective. The proportionality analysis can be divided into four subquestions. The first subquestion asks whether the measure pursues a “legitimate aim”; the second asks whether the measure contributes to fulfilling the aim it purports to serve; the third asks whether the least restrictive way of achieving this aim was used or whether a less restrictive way is available; and the fourth asks 4

See Peters’ (2011) assessment of whether the procedures taken in the course of Kosovo’s declaration of independence satisfy due process demands with regard to secession.

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whether, in an overall estimation, the ends justify the means (Dembour, 2006, 70). It seems that such a test may offer a reasonable framework for also balancing the competing interests of national groups and existing sovereign states. 9.6  BALANCING NATIONAL SELFDETERMINATION AND INDIVIDUAL RIGHTS

I now reach one of the central questions that triggered this work: Can positive international law be adapted to better accommodate ethno-national peacemaking? The question emerged from my concern that the existing legal framework not only does not adequately regulate ethno-national peacemaking (cf. Cassese, 1995, 327–340), but actually negatively disrupts such efforts and unjustifiably burdens them. The law might have adopted any of several positions toward accommodating national groups’ legitimate interests in selfdetermination – ranging from obligating states to accommodate such interests, to encouraging them to do so, being neutral toward the issue, or prohibiting it. The dominant approach of international human rights law is located at the prohibiting end of the spectrum. As we saw in Chapter 6, the ECtHR has endorsed the basic approach that arrangements aimed at internally accommodating the collective political rights of national groups within a state’s constitutional system lack legitimacy as permanent arrangements. However, such arrangements may be regarded as legitimate temporary measures aimed at securing collective cultural rights. This international human rights approach is not neutral toward the demands of ethnic and national groups, but actually undermines the achievements these groups have attained outside the law. But does this chapter’s reading of the right to self-determination make any difference? Does it enable human rights bodies to be more hospitable to and better accommodate ethno-national peacemaking? As the original problem stems from a conflict between collective measures aimed at accommodating ethno-national groups’ interests and individual human rights (most significantly the obligation to individual equality), my concrete aim now is to evaluate how the suggested reading of the right to self-determination might affect this type of conflict and what, if any, useful normative guidance it offers. The biggest contribution of the collective equality reading is the normative yardstick it provides for recognizing (ethno-)national collectives – minorities and majorities alike – as the subject of a collective (human) right to selfdetermination. According to a collective equality reading, political arrangements, such as power-sharing systems, may be regarded as legitimate and recognized as a “proper system of government,” which allows a normative

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appraisal of the arrangements – from prima facie nonlegitimate measures to prima facie legitimate measures to promote legitimate aims. Such a normative reappraisal has a material effect on the legal evaluation of human rights infringements caused by such political arrangements. Although stated throughout the work, I note again that in recognizing collective rights and providing legitimacy to collective measures, we are not moving to a new regime under which individual rights are subjected to collective rights. Rather, we contextualize the recognition enshrined in the human rights covenants – that the collective right to self-determination is an indispensable tool for ensuring important individual interests that cannot be obtained otherwise – in deeply divided places. It is likely that in many situations the promotion of collective rights will also promote individual rights. At the same time, it is also likely that in other situations or even other ramifications of the same exact situations (such as those exhibited in the Bosnia and Herzegovina cases), s­ elf-determination and individual rights will come into tension and a careful balance will need to be struck between them.5 Since a central task of international law is prescription, I start with evaluating some of the common conflicts between peace-related collective measures and individual human rights that confront peacemakers. Beyond the potential conflict with the equal individual rights of those not affiliated with a national group, I consider also the probable violations of human rights resulting from the requirements for a personal designation with a national group or from restrictions on freedom of movement. 9.6.1  Nondiscrimination and Equality of Nonaffiliated Individuals Collective arrangements, such as those associated with ethnic power-sharing, are likely to violate the fundamental human rights obligation to secure full equality of political liberties for all state citizens. As already noted in Chapter 7, collective equality cannot justify – as part of an ideal theory – institutional 5

Another contribution is found in a plausible change to the division of labor between the political and judicial systems. According to the current accepted legal approach, the protection of minority groups, including national minorities, is assumed to be provided by human rights protections, preferably guaranteed by constitutional provisions and enforced by an independent judicial system. However, political actors often do not respect human rights obligations, especially in situations where relations between the national majority and the national minority/minorities are considered a matter of national security. Consequently, allegations of severe human rights violations tend to arrive at the courts and provoke counterarguments of national security, requiring the courts to decide upon these volatile issues (Israel provides a good example of that scenario). In comparison, within power-sharing compromises and the collective equality approach, the protection of national minorities is transformed from a legal task to a political task, embedded within the structure of the political system. Consequently, the judicial system is alleviated of some of its more problematic burdens.

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arrangements that do not secure equal rights for all citizens, especially with regard to political participation and the holding of public office. Therefore, corporate consociational arrangements, when they formally exclude some of the citizenry, cannot be regarded as a legitimate permanent political arrangement. However, in war-torn countries and deeply divided places, lapses from the ideal are expected; and transitional arrangements can be regarded as legitimate if they promote legitimate aims, but not if they are found to secure unjustified economic gains and political powers. The legitimacy of the promoted aims is therefore a key consideration for evaluating the legality of both permanent and transitional arrangements. For such evaluation, collective equality provides a normative yardstick suited to deeply divided places. Furthermore, in evaluating the legality of constitutional provisions, state laws, policies, and administrative actions, we must account for the fact that the goal of securing stable political institutions cannot be reached in few years; rather, the goal must be worked toward gradually and over a long period of time (Lederach, 1997; 2015; McCrudden et al., 2016, 54; Wimmer, 2018a; 2018b). Beyond the effort to adjust our normative assessment to better fit the empirical reality of deeply divided places, negotiators and parties to peace processes are advised to consider and endeavor, already during the negotiation process, how to design the arrangements to be as inclusive as possible of all citizens. For that purpose, it seems advisable to include within the negotiation process representatives not only of the major national groups, but also of nonaffiliated citizens (Saliternik, 2016). One example is the Northern Ireland peace negotiations; and some normative support can be found in Security Council Resolution 1325 regarding women’s participation and involvement in peace and security discussions. Other recommendations include granting preference to power-sharing models that are inclusive of all citizens (McGarry & O’Leary, 2007; McCulloch & McGarry, 2017; Hodžić, 2020), and stipulating the terms under which arrangements might be renegotiated (Bodson, 2018). More inclusive versions of power-sharing seem more easily available through a geographical/territorial division into ethnic subunits (such as a federal division based on regional majorities, as proposed by the peace plan for a unified Cyprus) or when there are two rival communities relatively equal in size (as with the demographic balance in Northern Ireland). Likewise, dividing Bosnia and Herzegovina into three subunits according to the national affiliation of each subunit’s majority population might have allowed changes to the way the two highest political positions, the presidency and the House of Peoples, are elected (moving from a personal affiliation with a predefined ethno-national group to a regional affiliation). Attention should also be given to how the groups are defined, how the affiliation with them is determined

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(self-designation or objective), and how the collective arrangements are defined. The goal of the last should be to adopt a definition and a designation that will be as accessible as possible to nonnationals and least alienating or disrespectful to others (see also Hodžić, 2020). Acknowledging that the arrangements, or some of them, are temporary and stipulating the terms under which they might be renegotiated, or need be renegotiated, is another tool open for sides to negotiations to deal with contentious arrangements. Hence, developing in advance the rules under which power-sharing provisions may be renegotiated and changed is a generally good and useful practice, enabling the system to evolve and respond to changes (Bodson, 2018). 9.6.2  Personal Autonomy and Group Membership The problem raised by the designation of individuals to an ethnic group has already troubled international and European institutions dealing with nondiscrimination and minority protection (Ringelheim, 2011). Generally, the need for designation has not come from the nationalist agenda, but rather from the need to effectively combat ethnic discrimination. Since in many Western liberal countries patterns of discrimination have continued despite clear enactment of equality and antidiscrimination laws, access to reliable information on their populations according to racial or ethnic criteria is needed. Given the recognition that such designation is needed to promote equality, the debate centered on the question of how individuals should be classified by identity, while also minimizing harm to their rights. I believe that the attitude toward the designation of individuals to ethno-national collectives for proposes of power-sharing should receive the same legal appraisal; that is, if the power-sharing arrangements are accepted as promoting justice in a society, the debate is not about the requirement for designation – recognized as promoting a legitimate aim – but only about how the designation should be carried out. Hence, collective equality contributes by providing prima facie legitimation to ethnic power-sharing arrangements in deeply divided places, thus shifting the question of designation’s legality to the design of the methods used – whether the method chosen for ethno-national designation is the least harmful to individual rights. According to several international human rights bodies, self-identification is regarded as most consistent with respect for individuals’ rights. In its 1990 General Recommendation VIII, CERD stated that identification of individuals as members of a particular racial or ethnic group “shall, if no justification exists to the contrary, be based upon self-identification by the individual concerned.” Self-identification is also strongly favored by the Advisory Committee

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on the Framework Convention for the Protection of National Minorities (FCNM) and by the Council of Europe Commission against Racism and Intolerance (Ringelheim, 2011). The ECtHR has suggested that requiring objective evidence of a claimed identity may also be compatible with the right to privacy. Since relying only on self-identification may be insufficient at times, a combination of the two methods, such as adopted in Northern Ireland under the Fair Employment and Treatment (Northern Ireland) Order, 1998, seems to provide a good practical example (McCrudden, 2006; Ringelheim, 2011, 1689–1691). The tension between the individual’s right to autonomy (and thus the preference for self-identification) and the collective interest in setting the criteria for group membership was reviewed by the HRC in a case involving the Sami Parliament elections (Tiina Sanila-Aikio v. Finland, 2015, Comm No 2668/2015). In that case, the committee found that Finland had violated its obligations toward the Sami people by not respecting the criteria for eligibility to vote in Sami parliamentary elections, as set by the Sami Parliament. In that case, while the Sami Parliament had set the eligibility criteria to include both self-identification and an objective criterion, the Supreme Administrative Court of Finland deviated from them and accepted self-identification as sufficient. The HRC ruled that while the state may exercise powers of oversight over procedures designed to facilitate the operation of indigenous peoples’ democratic institutions, such powers should be applied carefully, on the basis of reasonable and objective criteria. As the HRC accepted that the effective enjoyment of the right to internal self-determination requires that indigenous peoples be afforded the capacity to define group membership, it decided that in such circumstances the collective interest may be justifiably preferred over the individual’s interest in self-identification. Thus, while self-identification is regarded as the preferred way to identify individuals, in cases where other legitimate interests are provoked an objective identification may be preferred, even from a human rights perspective. The important point, as we can see, is how the conflicting measures are perceived, as promoting important and legitimate interests or not. 9.6.3  Restrictions on Freedom of Movement The liberal nationalism literature has given attention to possible restrictions on entering the nation-state as part of a policy consciously aiming to preserve demographic domination of the ethno-national majority, vis-à-vis the return of refugees and general immigration policies (Tamir, 1995, 160; Miller, 1995a, ch. 5, esp. 129; Gans, 2008, chs. 4–5). The most extensive account on this issue

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is offered by Chaim Gans and specifically addresses Israel’s policies of immigration (Gans, 2008, ch. 5). However, the possible conflict between national self-determination and the right to freedom of movement within one’s country has not received, so far, much treatment within the power-sharing literature, despite it being a highly contentious issue in some peace efforts, as was the case, for example, in the Cyprus peace negotiations. According to the Annan Plan for peace in Cyprus, the constituent Turkish Cypriot and Greek Cypriot substates were entrusted with powers to regulate citizenship and residency in their respective unit, including powers to impose restrictions on freedom of residency within the island, a condition applied also to Cypriot citizens. However, because of the uncertain legal status of such movement restrictions within the European legal system, arrangements offered in subsequent peace talks looked for alternative non-formal techniques for achieving the same aim (see Chapter 6, Section 6.3). Considering the issue’s complexity, I am afraid that a serious treatment exceeds the scope of this work. Therefore, I limit my engagement to making a few remarks regarding the nature of the right to freedom of movement vis-à-vis political communities and collective equality’s usefulness for evaluating which practices might be regarded as legitimate. My first remark relates to demography and immigration. Tamir, Gans, and Miller – in different fashions – see demographic control as a legitimate interest of the nation-state that may and even should be handled with the aim of maintaining a onenation polity. According to contemporary international law, immigration policy is generally regarded as within the state’s prerogative, with caveats regarding refugees, and requirements that such policies are not arbitrary or discriminatory. Within a state’s boundaries, freedom of movement can be controlled, as part of the preservation of cultural communities, to protect indigenous peoples. For example, indigenous authorities have control over who is eligible to reside in their territories. However, although the general authority to control residency was regarded as promoting a legitimate aim, its application had to respect equality and nondiscrimination. In 1981, the Human Rights Commission ruled in the Sandra Lovelace case (Sandra Lovelace v. Canada, CCPR/C/13/D/24/1977) that Canada had violated Article 27 of the ICCPR. In that case, the government had prevented Lovelace from returning to her home community because she had married out and was no longer considered a band member. Such a restriction was not imposed on men. Thus, restriction of movement within the country was not considered illegal per se, but was conditional on its fair execution (i.e., in a nondiscriminatory manner). However, internal restrictions on movement are more often associated with other highly problematic cases – such as the internal pass laws imposed by

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Apartheid South Africa on its African population (Maylam, 1990) and movement restrictions imposed by Israel on Palestinians (OCHA OPT, 2020). While freedom of movement is a basic human right protected by the ICCPR, its restriction is allowed in a variety of cases. However, what differentiates restrictions on movement that might be regarded as prima facie legitimate from those that are not is related less to the restriction of the specific right (movement) per se and more to the manner of its imposition – whether the restriction is used as a tool of domination and executed in a discriminatory fashion. Indeed, Tamir and Gans also concentrate on the moral foundations of immigration policies regarded by many as discriminatory. They direct their examination primarily to restrictions on Palestinian immigration (or rather return) to Israel while allowing free immigration of Jews. If we accept (which I do) that a legitimate interest of political communities is to secure their collective self-determination by maintaining a common national identity, then it can be reasonably argued that such a legitimate interest exists also for political communities that are part of a multinational state, as is the case with indigenous peoples. In such cases, especially when the political units form a smaller demographic minority within the state, an interest in having some control over their population – as is the case with Turkish Cypriots within a unified Cyprus or indigenous peoples – seems justified. Territorial division into different ethnic subunits also bears the advantage of allowing easier adoption of more inclusive versions of power-sharing. The connection between a free movement zone and the boundaries of the political community, which we find both in the nation-state and substate units, works also in the other direction, by expanding the free movement area to the territory of supranational units, such as with the Schengen area of the EU, or proposals for defining the whole territory of Israel–Palestine as a free movement zone for both Israeli and Palestinian citizens in a future confederal arrangement between two sovereign states of Israel and Palestine. In summary, new questions and new tensions emerge between legitimate demands for justice out of the recognition of a right of peoples – understood as human collectives in contradistinction from their state – to self-determination. Unlike the common view that sees the tensions between collective measures (as power-sharing arrangements) and individual rights as a peace versus justice dilemma, a collective equality reading of the right to self-determination reframes the dilemma as between two notions of justice. Instead of a dilemma that sees peace-related political arrangements as compromising justice principles to promote peace, the tensions can now be seen as being between the promotion of two equally legitimate aims – that is, the promotion of collective and individual human rights – that need to be balanced. This reframing, as

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we can see, not only changes the way the legal review should be conducted, but provides a potent yardstick to better distinguish legitimate claims of justice from illegitimate self-interested claims to power and economic gains (cf. Rawls, 2001b, 89–91; Koskenniemi, 2006, xiv). 9.7 REVISITING SEJDIĆ AND FINCI

The issue that was brought before the ECtHR in the Sejdić and Finci v. Bosnia & Herzegovina case represents one of the most problematic tensions between consociational arrangements and individual rights, as it relates to unequal allocation of the political liberties of citizens nonaffiliated with one of the national collectives who share the state’s political powers. I recall that the ECtHR found that the provisions for elections to Bosnia and Herzegovina’s presidency and House of Peoples – which restrict the eligibility to run for those offices to citizens affiliated with the three “constituent peoples” of Bosnia and Herzegovina – are discriminatory on ethnic grounds, equivalent in severity to racial discrimination. The judicial review exercised by the Court was built upon three assumptions: two normative assumptions regarding the irrelevancy of a right to national self-determination and regarding the normative superiority of majoritarian liberal democracy; and a sociofactual assumption regarding the nature and length of the transitional process that needs to take place after a violent conflict and until a stable liberal democracy is secured. According to the Court’s reasoning, the questionable constitutional provisions have been in breach of the right to nondiscrimination with regard to participation in elections (Article 14 taken in conjunction with Article 3 of Protocol No. 1) and with regard to standing for election to the state’s presidency (Article 14 taken in conjunction with Protocol No. 12). However, when the Court evaluated whether the right to nondiscrimination had been infringed for the sake of a legitimate aim, no such aim was clearly found. 9.7.1  The Legitimate Aim Conundrum The ECtHR ruling does not provide a clear answer to the question of the legitimate aim promoted by power-sharing arrangements, as the Court mainly tried to bypass the issue: “The Court does not need to decide whether the upholding of the contested constitutional provisions after ratification of the Convention could be said to serve a ‘legitimate aim’ since for the reasons set out below the maintenance of the system in any event does not satisfy the requirement of proportionality” (Sejdić and Finci, para. 46). However, this reasoning is questionable, since clarifying the legitimate aim (or aims)

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is highly important in assessing the other requirements of proportionality; namely, whether less harmful alternatives are available and what they actually entail. From the proceedings and also from the Court’s reasoning, we see implied two possible legitimate aims to be promoted by the collective political measures of Bosnia and Herzegovina – the general interest both in peace and in stability, the threat to which the Court considered to emanate from the three groups themselves. While referenced together, peace and stability actually combine two distinct aims: peace as security and the absence of violence, and political stability. The Court’s observations (Sejdić and Finci, para. 47) indicate that it regarded the threat to peace and security as practically over. However, with regard to the threat to political stability, the Court did accept its continued relevance, at least to some extent (Sejdić and Finci, para. 48). The Venice Commission also acknowledged the need not to disturb the balance of power among the three groups.6 While other estimations with regard to the actual security situation in Bosnia and Herzegovina could well be made and have been made by the minority opinion of the ECtHR as well as by scholars (see Chapter 6), I do not find that the ruling’s core problem lies within its factual assessment of the situation, but rather in its failure to recognize a legitimate aim of Bosnia and Herzegovina’s three constituent peoples to have collective selfdetermination.7 Since the Court provided no clarifications in its reasoning, we can infer them only from the Opinions of the Venice Commission, which the Court referenced and relied upon in its ruling:

6

7

“In the present case the legitimate aim could be seen in the main role of the House as a body in which the vital national interests veto is exercised. The BiH [Bosnia and Herzegovina] Constitution reserves the right to exercise this veto to the three constituent peoples and does not give it to the Others. From that perspective it would not seem required to include ‘Others’ in the composition of this House …. They show that the function of the HoP [House of Peoples] is to be a corrective mechanism, ensuring that the application of the democratic principle reflected in the composition of the HoP does not disturb the balance among the three constituent peoples. The need for such a mechanism seems still to be felt in BiH. In that case it seems possible to regard this need as a legitimate aim justifying an unequal treatment of Others in respect to representation in the HoP” (Venice Commission, opinion from June 12, 2006, para. 27). In a brief comment, the Court expressed its discontent with the maintenance of equality between the groups: “The provisions were designed to end a brutal conflict marked by genocide and ‘ethnic cleansing’. The nature of the conflict was such that the approval of the ‘constituent peoples’ (namely, the Bosniacs, Croats and Serbs) was necessary to ensure peace. This could explain, without necessarily justifying, the absence of representatives of the other communities (such as local Roma and Jewish communities) at the peace negotiations and the participants’ preoccupation with effective equality between the ‘constituent peoples’ in the post-conflict society” (Sejdić and Finci, para. 45).

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The Opinions of the Venice Commission … clearly demonstrate that there exist mechanisms of power-sharing which do not automatically lead to the total exclusion of representatives of the other communities. In this connection, it is noted that the possibility of alternative means achieving the same end is an important factor in this sphere. (Sejdić and Finci, para. 48, emphasis added)

The Court found that there are alternative means to achieve the same aim, but it did not clarify this aim or, more importantly, which aims might be deemed legitimate, either temporarily or permanently. Unfortunately, reviewing the Opinions of the Venice Commission, we again find no clear answer as to what constitutes this legitimate aim. In one part of its opinions, the Venice Commission notes that it remains “legitimate to try to design electoral rules ensuring appropriate representation for various groups.” This is followed by a remark that maintaining the political balance in the country may also be legitimate. Yet it does not explain what “appropriate representation” or maintaining a political balance entails. Other remarks imply that preventing a situation of domination of one group in the interest of peace and stability is a reasonable concern, and thus measures aiming to prevent such situations were approved. The following observations of the Venice Commission, from March 11, 2005, illustrate this point: 77. A multi-ethnic composition can be ensured in a non-discriminatory way, for example by providing that not more than one member of the Presidency may belong to the same people or the Others and combining this with an electoral system ensuring representation of both Entities. Or, as suggested above, as a more radical solution which would be preferable in the view of the Commission, the collective Presidency could be abolished and replaced by an indirectly elected President with very limited powers. 80. … While it is a legitimate aim to try to ensure an ethnic balance within Parliament in the interest of peace and stability, this can justify ethnic discrimination only if there are no other means to achieve this goal and if the rights of minorities are adequately respected. For the House of Peoples it would for example be possible to fix a maximum number of seats to be occupied by representatives from each constituent people. Or, as argued above, a more radical solution which would have the preference of the Commission, could be chosen and the House of Peoples simply be abolished and the vital national interest mechanism be exercised within the House of Representatives.

However, the June 12, 2006, opinion identifies a legitimate aim in the vital national interest veto exercised by the three groups: “The need for such

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a mechanism seems still to be felt in BiH. In that case it seems possible to regard this need as a legitimate aim justifying an unequal treatment of Others in respect to representation in the HoP.” Most of these observations refer to the previous aim (political stability), but the Commission does not clearly distinguish between aims that might be legitimate for the longer run and those that are conditional on the country’s political situation. The Venice Commission’s most telling remark, from which a possible legitimate aim of the groups can be extricated, is found in its March 11, 2005, opinion: Under present conditions within Bosnia and Herzegovina, it seems unrealistic to ask for a complete abolition of the vital interest veto. The Commission nevertheless considers that it would be important and urgent to provide a clear definition of the vital interest in the text of the constitution. This definition will have to be agreed by the representatives of the three constituent peoples but should not correspond to the present definition in the Entity Constitutions which allows practically anything being defined as vital interest. It should not be excessively broad but focus on rights of particular importance to the respective peoples, mainly in areas such as language, education and culture. (emphasis added)

In summary, the ECtHR and the Venice Commission shared the factual assumption that BiH was not yet a stable democracy and may not be for another significant period of time. This is in line with what can be realistically expected in deeply divided places emerging from violent conflicts (Wimmer, 2018a). However, the ECtHR decision and the Venice Commission opinions do not provide a clear answer as to the legitimate aims that can be promoted by Bosnia and Herzegovina’s political arrangements – either temporarily or permanently. Yet we can make two generalizations from them. First, the Court and the Venice Commission related the need to secure a political balance between the groups to the need to achieve a peace agreement between them and to the continued ramifications of the violent past on political stability and popular sentiments. However, the Court rejected the aim of maintaining equality between the groups, which it did not regard as a legitimate aim. Second, a possible legitimate interest of the groups themselves is confined to the realms of language, education, and culture. 9.7.2  Legal Effects of Misrecognition While I share the Court’s view that veto rights should not be excessively broad, the scope of legitimate interests identified by the Commission is unjustifiably

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narrow.8 As argued earlier, justified political interests of national groups are not limited to the area of culture (even if broadly understood) but include political self-determination. This failure to recognize what otherwise should and could have been recognized as legitimate interests had decisive implications for the legal results, a finding that corresponds with Christine Bell’s assessment that the power-sharing arrangements’ presumed legitimacy is a central consideration of human rights bodies (Bell, 2013). The failure to recognize the applicability of the proper scope of collective rights informed the Court’s other legal findings, namely the type of discrimination declared by the Court and the normative disregard of the possibility of nonmembers to selfdesignate themselves as members of one of Bosnia and Herzegovina’s national groups. Regarding the type of discrimination, recognizing the three peoples as national collectives that legitimately pursue national collective ­self-determination would lead us to see the political distinctions in Bosnia and Herzegovina’s constitution as reflecting national-political legitimate distinctions rather than ethnic, racist ones. In addition, disregarding the selfdesignation option located the harm in the realm of restrictions against some citizens’ political participation and banning them altogether from some public offices. McCrudden and O’Leary clarify: Since the applicants were able to self-designate as one of the Constituent People, they should bear the consequences of their choice not to do so. There is no incompatibility between being Roma or Jewish and self-identifying as Bosniak, Serb, or Croat. Self-identifying with one of the three designations did not require any repudiation or degradation of any other identity. The European Roma Rights Center, however, responded to this argument by claiming that to accept this reasoning would be contrary to Article 3 of the Framework Convention on National Minorities. (McCrudden & O’Leary, 2013b, 494)

While self-designation as one of the three national groups may inflict harm on nonaffiliated citizens, it can be regarded as a harm to the right to autonomy, but not as a violation of citizens’ core political liberties. The failure of the Court and other human rights bodies to recognize a legitimate aim in the national groups’ self-determination, promoted by the political arrangements, changes our entire evaluation of the core legal questions. Indeed, the ECHR 8

I would add that there are other reasons why veto rights within power-sharing systems should be carefully defined and crafted. One reason is that vetoing under the pretext of “vital interest” transforms the contentious issues to be “securitized”; that is, framed as an existential threat to the collective self and thus removed from the political give-and-take (Zabota, 2018, 21).

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does not include an explicit right of peoples to self-determination. However, as both ICCPR and ICESCR include this right explicitly and since all ECHR member states are also parties to ICCPR and ICESCR and obliged by them, the ECtHR should also acknowledge as a legitimate aim the adoption of measures that promote the right to self-determination. 9.8 CONCLUSION

A central feature of the gap between international law and peacemaking practice is found in the inappropriate legal interpretation of self-determination, traditionally attached to the territorial state and not to human political communities. This chapter presented a way in which the collective human right of peoples to self-determination under international law can be read and understood as an equal right belonging to national groups; that is, human collectives holding and acting toward political self-determination. Building on emerging approaches to self-determination, the suggested reading reflects a nuanced understanding of the right to self-determination that can be balanced with other legitimate interests of states. This contributes to turning selfdetermination from a “legal bomb” (an unconditional right to secession) to a legal right much more closely resembling other human rights. I argued that understanding the right as one of national groups in accordance with the principle of collective equality produces a reasonable and balanced right that does not threaten stability or other justifiable interests of existing states. Such an interpretation of the right to self-determination gives rise to several welcome outcomes. First, it offers a reasonable, unified way to handle the right to self-determination and proper ways for its implementation in specific situations, including both internal as well as external self-determination options. Hence, it avoids a sharp separation between the two and the need to establish a reasonable account predicting when the demands of a people to form their own state might be justifiable. Describing the proper relations between national groups – both minorities and majorities – as relations marked by equality may contribute to a shift also in the considerations and positions of dominant majorities. Second, employing the common and familiar legal guidelines for balancing provides for careful and detailed scrutiny and allows for giving due regard to parent state interests as well as to international and internal stability. Third, given the inherent interdependency between contemporary sides to self-determination conflicts, the actual implementation of a right to self-determination must be worked out through dialogue and agreement with the existing sovereign state or any other affected political entities and communities. While the suggested interpretation does not accord

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ethno-national groups all that they demand (arguably, an unrestricted right to choose their international status, including secession), it does change the legal and normative default from practical rejection to conditional legitimization of their self-determination demands. This last claim assumes that current international law either prohibits secession or does not regulate it, which ­practically leads also to its rejection by states and by the international community because of a presumption in favor of stability (Peters, 2011). Building on previous findings related to the value of equality for all parties involved in peace processes, it is likely to contribute to more effective dialogue between self-determining group(s) and the state(s), and hopefully to a reduced impetus for violence. The ECtHR Sejdić and Finci v. Bosnia & Herzegovina case reflects, but also enhances, the fundamental incompatibility and misunderstanding between international and regional human rights law and the political conceptions that drive conflicts and contemporary peacemaking. In presenting a revised reading here of existing international texts, specifically the endorsing of the collective equality concept and suggesting a reading of the right to selfdetermination, I offer an adaptation of the legal framework, making it more useful for providing normative guidance for peacemaking. Indeed, unequal allocation of political liberties cannot be approved as part of an ideal, stable democracy. Such inequality should be avoided to the greatest extent possible also during political transitions, and the balancing of group and individual rights must be approached carefully and with great sensitivity to local circumstances. However, to promote justice and peace, such balancing must take seriously both individual rights and peoples’ equal right to self-determination.

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10 Conclusion

The decades since the end of the Cold War have been characterized by a shift in international focus from confrontation taking place between the two superpowers to that happening in more localized areas, in many places ­taking the form of intergroup, ethno-national conflict. This shift of attention, and the recognition that such conflicts amount to an international security problem, brought about a new interest in understanding them. While they are ­customarily thought of as motivated by hatred and intolerance, contemporary research connects (or correlates) the outburst of such conflicts and a struggle over the nation-state’s control and powers. Political exclusion, recent loss of power, and severe inequalities among ethnically defined groups – in the distribution of public goods, political powers, and allocation of cultural recognition – are found to correlate with an increased likelihood of the outbreak of violent ­conflicts. These new understandings shed novel light on such conflicts that are now widely seen as rooted in contemporary political power relations and social injustices connected to the modern nation-state’s structures. Shaped by the paradigm of a peaceful world divided into democratic nation-states, prominent solutions to ethno-national conflict have traditionally taken two major forms: the creation of a new nation-state through partition (or secession), and democratization with human rights protections. However, partition is shown to suffer from severe pragmatic and normative obstacles that make it inapplicable in many sites of ethno-national conflicts, and highly limited and even dangerous if applied as a conflict resolution tool without adequately securing the ethno-national heterogeneity that will be maintained after partition and without properly recognizing the cross-border ethnonational affiliations. Democracy, understood as holding democratic elections and establishing a system of constrained majority rule, was shown not to prevent severe inequalities in deeply divided places, in opposition to its ideal and promise. Despite their increasingly sophisticated legal obligations and 289

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their inclusion in states’ constitutions with judicial review guarantees, human rights were found to be unable to counter the adverse effects of majoritarian democracy. Thus, in deeply divided places, liberal democracy is particularly unable to uphold its claim for neutrality and equal individual rights, and to prevent severe structural inequalities along the lines of the ethno-national identities. In parallel, the model of power-sharing democracy has emerged as an alternative political paradigm, and in recent decades is increasingly acknowledged by peace negotiators and scholars as a central peacemaking tool in ethnically torn, deeply divided places. Usually, power-sharing arrangements and especially their ethnic versions are regarded as a necessary, yet regrettable, compromise of liberal justice for the sake of achieving peace, unlike liberal majoritarian democratic systems, whose legitimacy is taken for granted. When human rights bodies are asked to rule on the legality of the powersharing arrangements and of the constitutional provisions that establish them, ­normative perceptions of the proper state and the proper system of ­government play a decisive role in their decisions. Such human rights bodies’ decisions, most famously the ECtHR rulings on Bosnia and Herzegovina’s Dayton ­constitution, reflect and accentuate a rift between a highly statist and individualistic international law and contemporary peacemaking practice, which diverts from the bounded nation-state framework and recognizes and accommodates ethno-national collectives. This book has argued that these decisions made by human rights bodies, which are built on an individualistic conception of justice and a narrow understanding of a legitimate political system, wrongly frame the tensions between power-sharing and human rights as a peace versus justice dilemma, failing to account for the meaning and requirements of justice in loci of deeply divided places. By ignoring how justice is promoted by peace deals, and by power-sharing and other collective-based arrangements, particularly their effects on political inclusion and intergroup equality and nondomination, the legal human rights framework hinders peace and justice instead of supporting and promoting them. Indeed, power-sharing arrangements suffer from problems and dangers, particularly the risk of entrenching ethnic cleavages, political stagnation, and marginalization of citizens who are not members of one of the groups included in the power-sharing arrangements. However, one should acknowledge that these dangers and risks are first and foremost rooted in the empirical reality of such places, characterized by deep social and political cleavages, and that power-sharing arrangements offer a viable means for sharing the state powers more inclusively. Nevertheless, these problems must be adequately considered, and as far as possible peacemakers

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should carefully devise power-sharing arrangements while respecting, to the maximum extent possible, individual rights and states’ interests. 10.1  COLLECTIVE EQUALITY

Aiming to capture more accurately what justice means and what promoting justice requires in places of ethno-national conflicts, this book has proposed the concept of “collective equality” as a central element of justice in such deeply divided places and as a new theoretical basis for the law of peace, and develops it in three steps. 10.1.1  First Proposition The first proposition (Chapter 7) holds that considerations of justice support recognizing national groups (minorities and majorities) as primary and legitimate political actors that are substantially equal. Collective equality acknowledges that in situations of conflict, the construction of equal and nondominating relations among rival groups is a core rationale of just peace. It was suggested that introducing power-sharing arrangements as a tool of peacemaking is a practical way to merge both the national ideal of political community and the liberal ideals of equality and inclusion in the context of deeply divided places. Indeed, unlike “true” nation-states, where the national and liberal ideals of the state support and reinforce each other, in deeply divided places they conflict with and undermine each other. Thus, while compromises on the ideals of both nationalism and liberalism are required, power-sharing offers a way to overcome the inherent weaknesses of these two grand ideologies when their actual application does not overlap with the same human community. Accordingly, collective equality offers a new context for peacemaking in ethno-national conflicts, combining liberal and national terms, and consequently also provides a new context for evaluating the moral legitimacy of power-sharing arrangements. In developing collective equality, I have built on existing liberal accounts of justice and, at the same time, deviated from them to the extent that the fundamental social facts prevalent in deeply divided places warrant. The idea of a “system of social cooperation” was borrowed from John Rawls’ theories of justice and was introduced within a third level of social cooperation, where the regulation of relations between ethno-national groups – central political-collective actors in such conflicts – takes place. Recognizing ethno-national groups’ unique position, and their positioning as equal participants in social cooperation, seems to best capture the

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new approach offered by the concept of collective equality vis-à-vis existing accounts of minority rights and how the right to self-determination is currently understood. Adopting the idea of social cooperation as applicable to relations between ethno-national groups, two underdeveloped issues in contemporary accounts of group rights are addressed – the place and role of majorities and the reciprocal obligations of both minorities and majorities. This is done by positioning the groups as equals in principle, since equality is the only reasonable relation between them that can replace the power struggle for and against domination. The political structures – within the state or at the international level – should attend to the needs and insecurities of the conflicting ethnonational groups to facilitate equal and interdependent relations between the groups, and to enable a fair system of social cooperation to emerge. For convenience, I provide here a brief sketch of the central ideas behind the concept of collective equality. First, collective equality is based on recognizing ethno-national collectives as entitled to an equal, legitimate claim for self-determination, and argues that their status should be acknowledged formally as part of the liberal tradition and international law. It means that normative recognition is extended to both national minorities and national majorities as legitimate group actors within the liberal theoretical frame.1 Second, collective equality supplements the traditional liberal approach with a third level of justice in which the participants – the ethno-national collectives – engage in “a fair system of social cooperation over time from one generation to the next” (Rawls, 2001a, 5). It is assumed that for the purpose of social stability in deeply divided places, the primary relations that need to be worked out are also those between the groups, relations that are not confined to existing states’ borders. By adopting the idea of social cooperation as also applying to relations between ethno-national groups, it follows that we regard these groups not only as bearers of rights and duties toward individuals and states, but also as participating in proper cooperation between them. Third, collective equality encompasses the requirement of mutual respect between groups and an endorsement of “proper patriotism.” Hence, according to collective equality, ethno-national groups owe due respect to each other. Fourth, collective equality adopts a relational understanding of equality and self-determination and focuses on the institutionalization of equal and interdependent relations among the groups, which should replace relations marked by domination, exclusion, coercion, and discrimination. Rather  than  being 1

Collective equality therefore adds to common minority rights accounts, which acknowledge only national minorities, and also to the civic-neutral-statist liberal framework, based (implicitly) on the self-determination of only ethno-national majorities.

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vested in isolated independence and domination, self-determination is perceived as relational and conceptualized by interdependence and nondomination. These relations are to be regulated by institutions that facilitate ongoing negotiations and deliberations between the groups as peers. Fifth, the restructuring of social and political relations between (ex-)­enemies and within the whole disputed territory entails attending to four dimensions of equality – a procedural commitment to equality in negotiations and three substantive dimensions: redistribution – promoting equal distribution of all public goods and correcting previous economic injustices; recognition – mutual respect and recognition of language, culture, and national aspirations; and political representation – participation and allocation of political powers that ensure parties’ nondominating position within political institutions. Sixth, the idea of collective equality occupies two theoretical roles: as an ideal concept and as a concept of transition, in which its role is to facilitate transformation from violent conflict (including structural violence) to stable relations between self-determining groups, and to lay the foundation for constructing a permanent political system. Seventh, the task of collective equality as a concept of transitional justice should be understood as equivalent to the role of nonideal theory: to provide guidelines for how the long-term ideal might be gradually achieved. Understood in such a way, political arrangements, state laws, and other policies that promote collective equality should be seen as promoting two aims of political justice: peoples’ equal right to self-determination, and substantial equality among groups and individuals, as such collective measures are often better equipped than individual rights to correct the more commonly severe inequalities in deeply divided places. Moreover, in the long run, and if we envisage functioning political systems and not merely an organization that can easily be paralyzed due to constant power struggles between ethno-national sects, we should be aiming for the creation of a common political community. What seems to be required is the promotion of an additional, encompassing political identity, which aspires to draw in everyone who inhabits a particular territory. Since such processes are assumed to take time, even decades, we should be highly interested in the formulation of adequate guidelines and recommended courses of action that may support more successful transitions. 10.1.2  Second Proposition The second proposition (Chapter 8) holds that endorsing collective equality as a guiding principle of peace and peacebuilding should be regarded as realistic (i.e., presenting a realistic utopia) and advisable from a pragmatic

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point of view. By bringing examples from the three cases of Northern Ireland, Bosnia and Herzegovina, and Cyprus, I have shown how collective equality plays out in the real experiences of peacebuilding, peace negotiations, and peace agreements, and supports the prediction that equality, and not majority– minority, characterizes the kind of relations to which self-respecting national groups can agree. In addition, the Northern Ireland case also illustrated the significance of the concept’s multidimensional understanding, including public goods provisions (equal redistribution), cultural and national status (equal recognition), and political inclusion (equal representation). Multiple empirical studies show clear correlations between the exclusion of large ethnic groups and intergroup inequalities and the outbreak of violent conflicts. Reducing inequalities between groups – processes that require a long-term perspective of correcting political exclusions and remedying existing inequalities – has been clearly identified with an increased likelihood of political stability and enduring peace. Therefore, collective equality is advisable for reducing the likelihood of violent conflict and for increasing the likelihood of durable peace and sustainable political systems, characterized by political inclusion. 10.1.3  Third Proposition The third proposition (Chapter 9) holds that collective equality offers a viable way to lessen the unfortunate gap and misunderstanding between international law and the actual requirements of justice and of peace in deeply divided places. Instead of the traditional marriage between self-determination and the territorial state, collective equality offers a reading in which the collective human right of peoples to self-determination is understood as an equal right belonging to national groups; that is, human collectives holding and acting toward political self-determination. Building on emerging approaches to self-determination, the collective equality reading adds more qualities of a human right to self-determination, which enable a more robust balancing between self-determination and other legitimate interests of states, including threats to stability. This suggested reading is based on two central ideas. First, reinterpreting the nature of the right to self-determination from a “trump card” to a right that can be respected in different ways and degrees, including, for example, enhanced inclusion within the state’s structures, autonomous regimes, consociational arrangements, or confederal institutions. Second, understanding the subject of the right to be peoples; that is, national collectives. Such national collectives may include existing minority groups, majority groups, or a state’s

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entire population, depending on the actual existence of a national group – a collective holding and acting toward political self-determination. Recognizing that a specific national group is entitled to self-determination does not automatically grant it a right to secede, but rather announces the obligation of the relevant state(s) to maximize respect of that nation’s right to self-determination, while making the balancing of conflicting rights and other justified interests possible. The collective equality reading can affect peace negotiations. Making available a principled legal framework within which negotiations between the competing collectives and the state(s) involved can take place might contribute to more potent and effective negotiations. It has been argued here that by delimiting the justifiable interests of national groups – both minorities and majorities – the new approach transforms self-determination from a legal bomb to a legal right aimed at assisting the recreation of relations between closely related rivals as equals within a system of ongoing social cooperation. To conclude, collective equality presents a permissible liberal and legal framework that can legitimately be endorsed by the affected constituencies. In line with empirical findings about favorable processes for promoting sustainable peace, particularly promoting political inclusion, economic redistribution, and equal recognition, collective equality offers a useful guide for more successful peacemaking efforts. 10.2  LOOKING AHEAD: APPLYING COLLECTIVE EQUALITY TO THE ISRAELI–PALESTINIAN CONFLICT

Having said all this, I now want to ask one last question: How may embracing the principle of collective equality alter the way we think about justice and transitional justice in specific situations of unresolved ethno-national conflicts? As this entire research project was triggered by the current impasse in the Israeli–Palestinian conflict, I want to end with cursory remarks about how all this might be applicable to that situation and may provide useful guidance for new – and hopefully more successful – peacemaking efforts. Since the Oslo Accords were signed in Washington in 1993, the hope for Israeli–Palestinian peace has been viewed by most peoples, including within Israeli and Palestinian societies, as based on a two-state solution. However, what seems to be an even more basic rationale of that peace – especially among the Israeli public – is the idea of separation between Israelis and Palestinians, best captured by the phrase “We are here, and they are there.” However, as time elapses from the signing of the Oslo Accords, Israeli–Palestinian peace based on the “traditional” two-state solution – the best public articulation of which

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is offered by the Geneva Initiative2 – seems more remote than ever. The oncemarginal opinion that the “traditional two-state solution” is no longer viable (Benvenisti, 1995) is now endorsed by many scholars, journalists, civil society activists, and senior politicians (Barak, 2005; Hilal, 2007; O’Malley, 2016; Cordell & Wolff, 2016; O’Leary, 2016; Lustick, 2019). Based on the peace process’s failure so far, which has arguably only entrenched and aggravated previous inequalities and injustices and has exhibited continuous widespread violence (including the killing and wounding of thousands of Palestinians and Israelis) and structural violence (B’tselem, 2021; Human Rights Watch, 2021; Amnesty, 2022), many commentators and researchers have concluded that a two-state solution is a false idea that should be abandoned. Disappointment with the two-state solution has triggered considerable debate regarding alternative approaches to conflict resolution and peacemaking. While within political and policy-making circles a paradigm of “conflict management” or of “shrinking the conflict” seems to have taken hold, academic and civil society discussions on the subject emphasize the need to rethink what peace and self-determination in the Israeli–Palestinian context means and to learn from the experience of others. This lively debate has produced alternative political paradigms for peace. It was initially characterized by substantial polarization between supporters of a two-state/separation solution and supporters of one state (Morris, 2009; Tilley, 2010; Farsakh, 2011; Faris, 2013), however more recently a set of more nuanced and complex suggestions have emerged, including options of a federal binational state and a two-state confederation (Zeedani, 2014; Bashir, 2016; O’Leary, 2016; A Land for All, 2020; Rahman, 2020; Beilin & Husseini, 2022). While I share the critical view of the Oslo framework, especially how it was promulgated to the Israeli public and was practically translated into an i­deology of separation between Israelis and Palestinians, and to a practice of Jewish domination I do not endorse the view that the two-state solution n ­ ecessarily needs to be abandoned. Yet, I maintain that a two-state framework may be viable only as part of a wider political solution based on the idea of collective equality. While other binational solutions, implemented through federal and consociational arrangements in one state, could be in line with the benchmark of collective equality, we must recall that such arrangements need to be endorsed by the two sides. Since the international law default in this case is two states, and since the option of one binational state receives an overwhelming rejection by Israeli Jews, and hence by Israel and the international community, my assumption is that we need to work 2

The Geneva Initiative, “The Accord,” can be found at https://geneva-accord.org/the-accord, last accessed December 3, 2022.

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within a paradigm of a two-state political framework. But, in order actually to progress towards two states in the realities of Israel–Palestine, there is a need for one central paradigm shift. Instead of separation of populations as a guiding principle, the guiding rationale for peace needs to be based on fair cooperation between the two peoples, the two states and their citizenry. Thus, it is suggested that we should distinguish between territorial partition (the disputed territory’s political division into two independent states) and separation (promulgating peace as dependent upon separation of populations). Indeed, the two-state solution grants the two peoples the ultimate aspiration of what national groups usually aspire to – an independent sovereign state. However, at the same time, applying partition without adequately securing the ethno-national heterogeneity and cross-border ethno-national ties that will obtain after partition – as Palestinians and Israelis live side by side across the entire land between the Jordan River and the Mediterranean Sea – is unlikely to resolve the conflict and is even dangerous. One of these root causes is the presence of Israeli Jews (settlers) in a future Palestine. As we know from both the peace plans and political statements made by prominent Israeli leaders, a two-state solution as it is perceived today entails the uprooting of at least 100,000 Israelis now residing in the West Bank. Such forcible uprooting of people from homes in which some of them have resided for decades is very likely to provoke even more anger and hatred. At the same time, leaving them in the future state of Palestine without establishing institutions in advance that will safeguard their accommodation and regulate their ties with their compatriots in Israel entails considerable problems too (examples of the problems caused by “cutoff ” minorities were demonstrated in the Northern Irish and Bosnia and Herzegovina cases). Informed by collective equality, we should better replace the ideal of separation with the idea of ongoing cooperation between equal parties, built on nondomination and interdependence. Promoting equality between the groups should relate to the four dimensions of justice – equality in negotiations, equal political representation, economic redistribution, and equal recognition. Equal recognition includes the formal and institutional recognition of the other’s national narrative (as illustrated by the idea of “parity of esteem” from the Northern Irish peace process). Respect and recognition of the other’s narrative do not entail accepting it as true, but they do mean granting it due respect, not only by declarations but also through concrete actions, for example through including a recognition of the two national traditions in both states’ constitutions, by recognizing the two peoples’ connection to the whole land, and by granting them freedom of movement within it. Cooperation is crucial to address several root causes of the conflict, which have not so far received a proper

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answer. Here are two of them: both peoples view the same piece of land as their homeland and demonstrate intense cultural and religious bonds to it. In fact, the only difference is the name each gives to it. While Palestinians call it Palestine, Israeli Jews call it Israel or Eretz Israel. In addition, members of both peoples are dispersed and mixed around the entire territory – in the West Bank, in Jerusalem, and in Israel proper (within the Green Line) – thus making it impossible to find a border that will not leave a significant number of members of the other national group on the “wrong side.” These root causes direct us to embrace a more complex approach toward peacemaking and statehood than the one endorsed in the Oslo process or the traditional two-state formula. They suggest that the benefits of statehood need to be accompanied by a reconceptualization of independence as interdependence and nondomination, and by cultivation of a political culture of cooperation between equals, which needs to be institutionally regulated. Since such cooperation should be a foundational element of Israeli–Palestinian peacemaking, and since cooperation requires the sides to be regarded as peers, both equality and cooperation should be promoted, first in order for a peace agreement to be reached, and second for such an agreement to be sustained. An adequate institutional framework is also essential for respecting the national bonds between national majorities and their compatriots that are left on the “wrong” side of the state borders. Thus, such cooperative institutions should also support the accommodation of national minorities and their interests, aiming to prevent a sense of betrayal such as the one experienced by the Irish Catholic minority in Northern Ireland after partition. Endorsing collective equality as a guiding principle for a revised paradigm for Israeli–Palestinian peacemaking is likely to raise considerable resistance from both nationalists and liberals. Yet, what is currently aspired to by both is not practical – as it does not give due regard to the national cleavage that is unlikely to disappear, to moral considerations and legal prohibitions. While the idea of fair cooperation between the two peoples and the two states as equals seems detached from current realities, its cultivation is possible. Moreover, in contrast to the present political framework of ethno-national domination or to the traditional two-state solution whose realization is dependent on the transfer of large civilian population, it is morally permissible and prompts us to work in a just and useful direction.

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TABLE OF CASES

African Commission on Human and Peoples’ Rights (ACHPR) Endorois Welfare Council v. Kenya, ACHPR 276/03 2003. Katangese Peoples’ Congress v. Zaire, Merits, 75/92, ACHPR 1995. Kevin Mgwanga Gunme et al. / Cameroon, 266/03, ACHPR 2009 (Southern Cameroon case).

European Court of Human Rights (ECtHR) Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64), ECtHR (July 23, 1968) (Belgian Linguistics). Demopoulos and Others v. Turkey (46113/99), ECtHR (March 1, 2010). D.H. and Others v. the Czech Republic [GC] (57325/00), ECtHR (November 13, 2007). Loizidou v. Turkey (15318/89), ECtHR (December 18, 1996). Mathieu-Mohin v. Belgium (9267/81), ECtHR (March 2, 1987). Pilav v. Bosnia & Herzegovina (41939/07), ECtHR (June 9, 2016). Sejdić and Finci v. Bosnia & Herzegovina (27996/06; 34836/06) ECtHR (December 11, 2009). Šlaku v. Bosnia & Herzegovina (56666/12), ECtHR (May 26, 2016). Zornić v. Bosnia & Herzegovina (3681/06), ECtHR (July 15, 2014).

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International Criminal Tribunal for the Former Yugoslavia Prosecutor v. Radislav Krstić, Case No. IT-98-33-A, Judgement, April 19, 2004. Prosecutor v. Vujadin Popović, Ljubiša Beara, Drago Nikolić, Radivoje Miletić, and Vinko Pandurević, IT-05-88-A, January 30, 2015 (Popović et al.).

International Criminal Tribunal for Rwanda The Prosecutor v. Akayesu, Case no. ICTR-96-4-T, Judgement, September 2, 1998.

Permanent Court of International Justice (PCIL) Minority Schools in Albania, Advisory Opinion, 1935 P.C.I.J. (ser. A/B) No. 64, April 6, 1935.

Supreme Court of Bosnia and Herzegovina Constituent Peoples case, U/58- III, June 30 and July 1, 2000.

Supreme Court of Canada Reference by the Governor in Council, pursuant to Art. 53 of the Supreme Court Act, concerning the secession of Quebec from Canada (1998) 2 S.C.R. 217; ILM 37.

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TABLE OF OPINIONS, REPORTS, AND RESOLUTIONS

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UN Committees and Commissions Apirana Mahuika et al. v. New Zealand (HRC, October 27, 2000, Comm No 547/1993). Human Rights Committee, Concluding observations on the third periodic report of Bosnia and Herzegovina, April 13, 2017 (UN Doc. CCPR/C/BIH/CO/3).

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https://doi.org/10.1017/9781009090988.014 Published online by Cambridge University Press

Index

Annan Plan. See Cyprus, Annan Plan apartheid, 119, 265, 281 assimilation, 9, 46, 64–65, 135, 215 autonomy, 16, 85, 114, 143, 211, 250, 258, 269, 271, See also Self-determination, Internal Bosnia and Herzegovina (BiH), 31–32, 47–49, 85–89, See also Human rights law, European Court of Human Rights (ECtHR), Sejdić and Finci case, Pilav case, Šlaku case, Zornić case; Kosovo; Yugoslavia Bosnian war, 48–49 confederal arrangements. See confederal arrangements conflict in, 1, 4–5, 31–32, 47–49 constitution of, 17–18, 154–155, 169–170, 235–236, 282 Dayton Peace Agreement, 1, 4, 31, 47, 153, 234 power-sharing in, 1, 152–156, 233–238 equality, procedural, 233–234 equality, substantive, 237 recognition, 236–237 representation, 234–236 Srebrenica, 237 Vance–Owen peace plan, 88 Brexit, 70, 164, 230 collective equality, 4, 20–27, 29–31, 187–190, 205, 224–226, 291–295, See also Domination; Non-domination; Self-determination challenges of, 222–224 dimensions of, 22, 205–219, 292–293 effectiveness of, 244–249 individual rights, and, 219, 222–224 interdependence, and, 21, 210–211 justice, and, 4, 224, 291, 294–295 objections to, 220–221, 249–253 peace, and, 22–24, 214–217, 227–228, 275, 293–295

theoretical foundations of, 20–22, 187–190 transitional justice, and, 214–217, 223, 277 colonialism, 193, 256, 259 settler colonialism, 57, 193 confederal arrangements, 31, 134, 152, 160, 163, 170, 207, 268, 273, 295–298 consociational democracy. See democracy, consociational constitutional arrangements, 29, 99, 106, 145, 192, 270 Cyprus, 34–35, 52–55, 92–94, See also human rights law, European Court of Human Rights (ECtHR), Demopoulos case, Loizidou case Annan Plan, 35, 75, 150–152, 179, 238, 241–243, 280 confederal arrangements. See confederal arrangements conflict in, 1, 5–6, 34–35, 52–55 power-sharing in, 1, 146–152, 238–244 equality, procedural, 238–242 equality, substantive, 243–244 political inclusion, 239–242 recognition, 242–243 Dayton Peace Agreement. See Bosnia and Herzegovina (BiH), Dayton Peace Agreement deeply divided places, 4–9, 29–31, 46–47, 207, 289 democracy, 133–140, See also Liberal democracy; Power-sharing consociational, 2, 135, 141–143, 273 majority rule / majoritarian, 2, 136–140, 196, 197, 290 shortcomings of, 138–139, 290 Mill, John Stewart, 15 discrimination, 112–113, 276–279, See also human rights law, equality and nondiscrimination, Right to institutionalized, 19

339

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340

Index

domination, 12, 21, 29, 66, 71, 73, 103, 124, 126, 139, 212, 245, 292, See also Collective equality; Non-domination equality, 102–103, 220–221, 245, 248, 276–279 relational, 211–213 ethnic cleansing, 4, 9, 32, 48, 88, 215 ethnicity, 7 identity, and, 43–46 primordial approach, 9–10, 62 ethno-national conflict, 4–7, See also self-determination causes and characteristics of, 12–13, 61–66 ethnicity, and, 7 geopolitical solutions to, 13–15, 289 justice, and, 190–193 legal solutions to, 16 nationalism, and, 7 peace, and, 190–193, 275, 290, 291 politics, and, 18–20, 43–47 ethno-national groups, recognition of, 4, 9–11, 202–207 ethno-nationalism, 19, 30, 43, 62, 176, 195–196, 216, 250–251 European Commission for Democracy through Law (the Venice Commission), 167, 172–174, 284–285 European Court of Human Rights (ECtHR). See Human rights law, European Court of Human Rights (ECtHR) federalism, 135, 143, 207, 273 genocide, 195, 237 Good Friday Agreement. See Northern Ireland, Good Friday Agreement grievance, 66, 67 horizontal inequalities, 12, 23, 66 human rights, 16–17 conceptions of, 100–102 equality, 102–103 individualism, 103 liberty, 102 legal protections of, 16–17, 111–115, 198, See also human rights law violations of, 115–117, See also human rights law human rights law, 16–17, See also self-determination African Charter on Human and Peoples’ Rights, 212, 259 Gunme and others case, 259 Kevin Mgwanga Gunme et al. case, 259 bills of rights, 115 collective rights, 24–27, 27, 114, 183, 219, 222–224, 275–276 Committee on the Elimination of Racial Discrimination (CERD), 167, 278

Declaration of the Rights of Indigenous Peoples, the (DRIP), 16, 83, 114, 116, 258 Equality and non-discrimination, right to, 112–113, 167–168, 172, 220–221 European Court of Human Rights (ECtHR), 2 Demopoulos case, 80 judicial review of constitutional arrangements, 18, 179–180, 282 Loizidou case, 84 Pilav case, 167, 180 Sejdić and Finci case, 18, 169–177, 282–287 Šlaku case, 167, 180 Zornić case, 167, 180 freedom of movement, right to, 279–282 Human Rights Committee (HRC), 114, 167, 269, 279 Tiina Sanila-Aikio case, 114, 279 International Covenant on Economic, Social and Cultural Rights (ICESCR), 25, 74, 202, 257 International Covenant on Social and Political Rights (ICCPR), 25, 74, 112, 117, 202, 257 minority rights, protection of, 16–17, 111–115, 198, 220–221, 258, 292 respect for, 113–115 shortcomings of, 16, 115–128 Universal Declaration of Human Rights, 23, 113 identity, 120–121 ethno-national, 9–11, 43–46 national constructed, 9–10, 45, 72 primordial, 9, 62 imperfect peace. See Peace, Imperfect independence, 210–211 institutional design, 135, 141, 192 interdependence, 210–211 International Court of Justice (ICJ). See International law, International Court of Justice (ICJ) international human rights law. See human rights law international law Fourth Geneva Convention, 78, 80 International Court of Justice (ICJ) Burkina Faso case, 82, 271 Chagos Advisory Opinion, 81 Construction of a Wall in the Occupied Palestinian Territory Advisory Opinion, 81, 95, 258 Kosovo Advisory Opinion, 84–85, 260, 266, 273 Western Sahara Advisory Opinion, 81, 258, 260 use of force, 85, 249, 252 Uti possidetis juris, 82–83, 86, 89

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Index intimate conflict, 14, 188, 190 Israel–Palestine, 35–37, 55–61, 94–97, 117–120, 295–298 confederal solution. See confederal arrangements conflict in, 1, 6, 35–37, 55–61 1948 war, 6, 36, 58 1967 war, 36, 58 first intifada, 36, 59 second intifada, 36, 59 occupied territories, 36, 58, 118 Oslo Accords, 36, 59, 119 power-sharing in, 1 Trump peace plan, 75, 96 two-state solution, 95, 296 UN partition plan, 35, 58 justice, 190–193, 245 dimensions of, 213–214 distributive, 106, 248 fair system of social cooperation, a, 28, 189, 205, 208 forward-looking justice, 192 procedural, 22, 248 relational, 24, 189 substantive, 22 theory of, 3–4, 29–31 non-ideal, 194, 223 Kosovo, 84–85 legitimacy majoritarian democracy, of, 290 nationalism, of, 105, 129, 250 nation-state, of, 68, 199 power-sharing, of, 169, 177, 183, 214, 224, 286 liberal democracy, 14–15, 43, 103–105, 196–199 Mill, John Stuart, 104, 196 shortcomings of, 198–199, 290 liberal multiculturalism, 15, 109–110, 125–128 shortcomings of, 125–128 liberal nationalism, 110–111, 128, 206 shortcomings of, 128 liberalism, 102, 199–200 equality, and, 102–103 individualism, and, 103 liberty, and, 102 political, 100–102, 105–109, 193–194, 205 Rawls, John, 21, 28, 100, 106–109, 193, 196, 205, 291 majoritarian democracy. See democracy, majority rule / majoritarian minority group, 221, 258, 263 minority rights. See human rights law, minority rights, protection of mobilization, 66, 71, 215 multiculturalism, 109–110, 125–128

341

mutual respect, 162, 208–210, 228, 230, 237, 238, 253, 293 nation, 7, 8–9, 44–46, See also nation-state civic, 7, 197 ethnic, 7 national group, 199–202, 262–264, See also selfdetermination, peoples, definition of definition of, 262–267 recognition of, 200–202, 250, 275, 291, 294 nationalism, 7–9, 195, 197, 251 civic, 195, 196 constructivist interpretation, 7, 10 ethnic, 195 liberal. See liberal nationalism nation-building, 101, 129, 143, 197, 215 nation-state, 8–9, 44–46, 64–71, 120–125, 195, 267–271, 291, See also Nation paradigm, 66–67 non-domination, 21, 28, 211–213, 291, 293, See also Collective equality; Domination northern Ireland, 32–33, 49–52, 89–92 Anglo-Irish Agreement, 161 Belfast Agreement. See Northern Ireland, Good Friday Agreement confederal arrangements. See Confederal arrangements conflict in, 1, 5, 32–33, 49–52 Good Friday Agreement, 1, 5, 33, 52, 160, 162–164, 228, 229 Opsahl Commission, 161–162, 228 parity of esteem. See Parity of esteem power-sharing in, 1, 156–164, 228–233 equality, procedural, 229, 232–233 equality, substantive, 229, 233 political inclusion, 231–233 recognition, 229–231 representation, 231–232 St. Andrews Agreement, 164 Sunningdale Agreement, 159, 160, 228, 233 occupation, 81, 258, 259, See also International law, Fourth Geneva Convention parity of esteem, 162, 163, 165, 189, 210, 228–230, 237 partition, 13–14, 73–99, 289 benefits of, 75–78 limitations of, 14, 80–85 obstacles to, 14, 80–85, 289 peace, 13, 190–193, 290 durable, 216, 248–249 imperfect, 178 just, 191–193 process, 277, 295 sustainable, 23–24, 106, 215, 218, 224, 295 peace agreements, 248–249, 251

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342

Index

peoples. See self-determination, peoples, definition of political community, 44, 72, 120, 206, 218, 222, 281 creation of, 46, 197 political exclusion, 65–66, 73, 245, 277 political inclusion, 67–69, 141–143, 245, 277 political justice, 22, 28, 30, 252, 293 political liberalism. See Liberalism, political political modernity, 63–65, 196 political power, 106, 134, 136, 137, 140, 245, 263 political representation, 12, 66, 143, 242 population transfers, 46, 78–80, 215, See also International law, Fourth Geneva Convention; partition power-sharing, 2–3, 140–146, 290 centripetal model, 141–142 confederalism. See confederal arrangements consociational model, 142–143, 207, 282 corporate, 144 ethnic, 144–164 critiques of, 144 human rights, and, 2–3, 18–20, 167–169, 177–182, 282, 290–291, See also Human rights integrative, 141 international, 122–123 liberal, 3, 145 pragmatic considerations, 13 proportionality. See proportionality proportionality, 142, 143, 162, 172, 181, 248, 272, 274, 282 recognition, 250, 293 equal, 23, 109, 156, 209, 211–213, 229, 242, 247, 297 mutual, 23, 150, 156, 190, 230, 233, 237, 242 reconciliation, 162, 192, 216 secession, 80, 272, 289 remedial, 84–85, 260 Secession of Quebec case, 83, 84, 260, 270 securitization, 127 self-determination. See also Human rights law, Minority rights, protection of; International law, International Court of Justice (ICJ), Chagos Advisory Opinion, Kosovo Advisory Opinion, Western Sahara Advisory Opinion cultural, 8, 189, 203 definition of, 257 equality, and, 208–213, 220–221, 268–269 ethnic, 194–195 group membership, and, 278–279 history of, 257–258

internal, 83–84, 259, 268, 271 interpretations of alternative interpretations, 259–261, 265–267 statist interpretation, 258–259 national, 8–9, 194–195, 262 national groups, 200–202, 262–264, 286, 294 interests of, 202–205, 286 peoples, definition of, 24, 81, 83, 189–190, 194–195, 200–202, 257, 258, 261–268 political, 286, 287, 294 right to, 24–27, 74, 80–82, 99, 189–190, 194–195, 202, 257, 269–271 infringement of, 274–275 self-identification, 263, 278–279, 286 territorial integrity, and, 195, 259, 265–267, 271–274, 294 settlements, 6, 36, 59, 80 solidarity, 45, 104–105, 124, 129, 135, 199, 219 sovereignty, 12, 64, 120, 136, 196, 197, 211, 259, 265 stability, 217–219 identity, and, 75–76, 83–84, 218, 251 territory, and, 76, 82–84, 218, 271–274 statehood citizenship, and, 64, 67, 123 nationality, and, 109, 267 territorial borders, and, 82, 271–274 territorial integrity, and, 14, 82 territorial integrity. See self-determination, territorial integrity, and; statehood, territorial integrity, and transitional justice, 214–217, 223 comprehensive, 192, 216 Turkish Republic of North Cyprus (TRNC), 55 declaration of independence, 55 recognition of, 55, 242 United Nations General Assembly, 216 Security Council, 192, 216 United Nations Friendly Relations Declaration, 205, 264 Uti possidetis juris. See International law, Uti possidetis juris Venice Commission. See European Commission for Democracy through Law (the Venice Commission) victims, 191–192 violent conflict, 249–250, 271, 289, 294 Yugoslavia, 4, 47, 85–87, See also Bosnia and Herzegovina (BiH); Kosovo

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