Constitutional Standoff in Bosnia and Herzegovina: Drama in Four Acts (So Far)

This text was commissioned by Worldwide IDEA and was initially posted on ConstitutionNet, IDEA’s on-line data platform supporting structure builders globally. Learn extra

By Maja Sahadžić

Act 1: The Unlikely Feud that Retains on Giving

For the reason that conclusion of the Bosnian Struggle (1992-1995), Bosnia and Herzegovina (BiH) has remained beneath the continual oversight of the Workplace of the Excessive Consultant (OHR). Established in Annex 10 of the Dayton Peace Settlement (DPA), the OHR was tasked with overseeing the implementation of the civilian provisions of the settlement, together with the Structure of BiH outlined in Annex 4. Its major position is to make sure the enforcement of peace and preserve stability in a deeply divided post-war society. The DPA, together with the powers it grants to the OHR, has been beneath the fixed scrutiny of the federal government of Republika Srpska (RS), one in every of BiH’s two constituent Entities alongside the Federation of BiH (FBiH). This rigidity has culminated within the latest adoption of a brand new draft structure by the Nationwide Meeting of RS, which is broadly perceived as a risk to the nation’s constitutional order.

The presence of the OHR has at all times sparked a debate, significantly relating to the perceived democratic deficit it creates. Nevertheless, nobody has contested the OHR’s position greater than Milorad Dodik, the chief of the RS authorities who has enthusiastically challenged the legitimacy of the Excessive Consultant (HR), though the HR’s authority is explicitly outlined in Annex 10 of the DPA and has been constantly endorsed and reaffirmed by means of United Nations Safety Council (UNSC) resolutions.

Since 2019, Dodik’s opposition has escalated considerably, with the Nationwide Meeting of RS passing nonbinding resolutions that formally reject the so-called “Bonn Powers” of the OHR, which grant the HR the authority to impose legal guidelines and amendments, dismiss public officers, and have even been interpreted by the HR to permit annulment of constitutional court docket selections.

As well as, in 2021, the RS adopted a strategic doc which outlined a collection of calls for, together with (1) returning powers that had been transferred to the state degree, together with these associated to the Armed Forces and the state-level judiciary and tax authorities; (2) abolishing the state-level safety businesses; and (3) annulling HR selections within the Nationwide Meeting of RS. This political maneuvering has prompted blended reactions. Authorized specialists, political stakeholders and the worldwide neighborhood have discovered themselves oscillating between treating Dodik’s repeated threats as routine bluster or real escalation, whereas the HR maintained a resolutely impartial stance in his responses.

Additional on, in 2023, Dodik discovered himself on the heart of a major confrontation with the current HR, Christian Schmidt, because the Nationwide Meeting of RS handed a regulation designed to forestall the publication of the HR’s selections within the Official Gazette, successfully making an attempt to ignore Schmidt’s authority. Nevertheless, earlier than the regulation could possibly be applied, Schmidt intervened decisively by annulling it. Undeterred, Dodik introduced his intention to signal a decree enacting the regulation no matter its annulment. In response, in 2024, Schmidt escalated the state of affairs by amending the Prison Code of BiH to criminalize non-compliance with the OHR’s selections. The amendments launched extreme sanctions, together with elimination from official duties, termination of public employment, and a ban on holding public workplace. This transfer intensified the stress on Dodik and different officers, reinforcing the HR’s authorized authority inside BiH.

The identical yr, as a part of a broader “integrity package deal”, Schmidt additionally amended the Election Regulation of BiH, introducing provisions that enable for the termination of a political mandate if a ultimate and binding court docket judgment prohibits the mandate holder from fulfilling their duties. This fashion, Schmidt appeared to have crafted a strategic workaround to terminate Dodik’s political mandate earlier than its official expiry, avoiding using the controversial Bonn Powers to take away or droop him, and empowering judicial establishments to hitch the fray and take motion in opposition to Dodik.

On 26 February 2025, the Court docket of BiH (particular, state-level court docket) sentenced Dodik to 1 yr in jail (topic to attraction), and imposed a six-year ban on holding any public workplace for willfully disregarding the choices of the HR in BiH. Whereas this ruling underscored the BiH judiciary’s dedication to implementing compliance with the DPA, it additionally initiated a severe political and constitutional disaster in BiH.

Act 2: Unconstitutional Legal guidelines

In response to the Court docket of BiH’s ruling, utilizing an emergency process, the RS authorities launched a set of legal guidelines which prohibit the actions of BiH’s state judiciary and regulation enforcement inside the territory of RS. It additionally launched amendments to the Prison Code, together with a penalty of as much as 5 years of imprisonment for non-compliance with the brand new legal guidelines by public officers in RS or on the state degree. On 27 February, the Nationwide Meeting of RS voted in favor of the legal guidelines, with solely three votes in opposition, and abstention by the political opposition. The adopted legal guidelines, nonetheless, stand on shaky authorized floor, to say the least. No constitutional or authorized provision permits a lower-level authorities to override legal guidelines adopted by a higher-level authorities, and Entity legislatures can’t amend or repeal legal guidelines handed by the BiH Parliamentary Meeting or the OHR.

On 7 March 2025, following a request for Constitutional Assessment submitted by a member of the Presidency of BiH, the Constitutional Court docket of BiH issued a provisional measure suspending the appliance of those new legal guidelines till a ultimate ruling on their constitutionality is rendered. In a relatively peculiar flip of occasions, the Bosniak Caucus within the Council of Peoples of RS opted to not provoke the Process for the Safety of Important Nationwide Pursuits, a course of to contest a contentious legislative proposal. This process serves as a constitutional safeguard, permitting constituent peoples to problem legal guidelines they imagine infringe upon their very important nationwide pursuits, doubtlessly resulting in a assessment by the RS Constitutional Court docket. The choice was primarily based on their evaluation that the process had confirmed ineffective, as previous efforts to safeguard very important nationwide pursuits earlier than the Constitutional Court docket of RS had led to failure.

Greater than a mere authorized counter-strike, the adoption of those legal guidelines (along with the standoff with the OHR) displays broader calls from the RS for a return to the unique phrases of the DPA, earlier than subsequent reforms, worldwide interventions, and Constitutional Court docket of BiH and HR selections, also known as the “unique Dayton”. This time period, whereas missing authorized precision, has grow to be a political catchphrase evoking a want to reduce the layers of worldwide oversight. It additionally represents a authorized try and hit the rewind button on the switch of powers that has taken place to this point.

Actually, given the slender unique powers of the state degree in BiH, which had been established within the DPA and its Annex 4 (the Structure of BiH), sure powers have been transferred from the Entities to the state degree over time. This switch has occurred by means of agreements between the FBiH and RS, BiH’s two constituent Entities, or on account of the HR’s interventions. Importantly, these transfers have encompassed crucial areas such because the navy, safety businesses, value-added tax, and the working of BiH’s prosecutorial and judicial our bodies, which had been deemed crucial for the functioning of the state. To elaborate, the Structure of BiH stipulates that powers on the Entity degree can solely be transferred to the state degree by means of mutual settlement between the Entities, whereas the Settlement on Civil Enforcement (Annex 10 of the DPA, later expanded by the Bonn Powers) grants the HR the flexibility to impose modifications as crucial. For instance, the Excessive Judicial and Prosecutorial Council (HJPC) was established after Entity powers on this space had been transferred to the state degree by way of an settlement between the FBiH and RS in 2004. The Legal guidelines on the Court docket and Prosecutor’s Workplace of BiH, nonetheless, had been imposed by the HR in 2000 and 2002 to reform the judicial system.

By invoking the “unique Dayton” and adopting these new legal guidelines, Dodik subsequently seeks to actively contest the scope of powers which have step by step shifted to the state degree. This transfer types a part of a broader political technique to recalibrate the steadiness of energy inside BiH, although it stays unclear whether or not reversing this shift is possible beneath the present authorized and constitutional framework. Actually, the Structure of BiH doesn’t outline a process for returning powers to the Entities, just for transferring them from the Entities to the state degree. This presents a major problem by way of authorized readability and process. A number of approaches have been explored to deal with the difficulty: (1) By authorized analogy, one might argue that returning competencies might, at the very least in idea, observe the identical mutual settlement mechanism by which they had been initially transferred; (2) The Parliamentary Meeting of BiH might amend or repeal the contested legal guidelines; and (3) These legal guidelines or selections could possibly be reviewed by the Constitutional Court docket of BiH. Nevertheless, this authorized uncertainty needs to be addressed earlier than any negotiations or parliamentary procedures for the switch of powers start, and would doubtless require the intervention of worldwide actors to mediate the method. Whereas the concept could have political attraction to some, the authorized and procedural hurdles would make such a transfer troublesome, if not not possible, with out substantial compromise.

Act 3: Unconstitutional Constitutional Provisions

On 13 March 2025, spurred by the Constitutional Court docket of BiH’s choice to droop the appliance of the legal guidelines adopted by the RS Nationwide Meeting, the Meeting convened a particular session and voted to provoke the drafting of a brand new Structure for RS, mandating the Committee for Constitutional Affairs to organize the draft. The subsequent day, the Nationwide Meeting adopted a draft Structure of the RS by way of a particular session, marking a swift and relatively dramatic constitutional pivot. Following the conclusion of a 30-day public session on the draft, the debate has shifted to how the ultimate model will likely be adopted, with choices into consideration together with a public vote, a secret poll, or a referendum.

Among the provisions included on this draft symbolize a problem to the powers of state degree in BiH and relaxation on legally precarious foundations. First, the draft introduces mechanisms for constitutional revision of the Structure of BiH, particularly in relation to powers that aren’t designated as unique to the state degree or should not derived from a mutual settlement between the Entities. Second, the constitutional textual content features a proper to self-determination for RS and the likelihood to type confederal relationships with different states. Third, the textual content suggests the institution of separate armed forces for RS. Collectively, these actions sign a strategic and deliberate shift within the constitutional and institutional configuration of BiH, posing substantial implications for the sovereignty and territorial integrity of the state.

Actually, no constitutional or authorized provision in BiH permits a lower-level authorities to override legal guidelines adopted by a higher-level authorities, and there aren’t any constitutional provisions on the state degree that allow a decrease tier of presidency to unilaterally determine about or override constitutional provisions enacted on the state degree in BiH. Any try by a subordinate degree to reverse or nullify selections made on the state degree will not be solely legally unfounded but in addition ventures into the realm of institutional improvisation. The Structure of BiH holds supremacy over the constitutions of the Entities, that are required to function in conformity with its provisions. This hierarchical relationship is foundational to the constitutional order of BiH, therefore the Entities don’t have any authorized house to diverge from it or contradict it. The provisions adopted by the RS Nationwide Meeting additionally search to exclude sure state-level powers on the premise of interventions of the HR, thereby implicitly difficult their legitimacy.

As well as, introducing a proper to self-determination and the likelihood to type confederal relationships lack authorized backing because the Structure of BiH doesn’t present a basis for such provisions. Underneath the Structure of BiH, the Entities solely have the proper to determine particular parallel relationships with neighboring nations. These relations don’t require approval from the state degree, however they have to be of such a nature that they don’t endanger the sovereignty or territorial integrity of BiH. Moreover, every Entity could conclude (worldwide) agreements with different states and worldwide organizations. Nevertheless, the Parliamentary Meeting of BiH should give its consent for such agreements (until it offers in any other case by regulation). Though not explicitly said, it’s implied that such agreements could solely be concluded in areas inside the Entities’ constitutional competencies, according to the precept of division of powers in federal states.

The proposal to determine armed forces inside RS additionally raises important constitutional considerations, significantly on condition that powers on this area had been transferred to the state degree, remarkably, by means of the mutual settlement of the Entities themselves. This stands as one of many uncommon, and arguably profitable, cases of energy being transferred in one of the crucial contentious areas. As beforehand famous, the Structure of BiH incorporates no provision for the reversal of such transferred powers, and any potential process for doing so stays theoretical.

Lastly, the provisions of the present Structure of RS solely acknowledge the potential for amending the Structure, relatively than adopting a completely new constitutional textual content. The query subsequently arises: Does the authority to amend the Structure inherently embrace the authority to undertake a totally new textual content? On the one hand, it could possibly be argued that such a process is just not possible. If the modification course of doesn’t enable for the adoption of a totally new textual content, doing so would basically disrupt the constitutional framework. However, one may argue that the involvement of each the RS Nationwide Meeting and the Council of Peoples of RS, each of that are integral to the modification course of, may legitimize the method of adopting a brand new structure.

Importantly, in keeping with the present Structure of RS, an modification requires at the very least two-thirds of the RS Nationwide Meeting members and a majority of the RS Council of Peoples members to vote in favor. Nevertheless, given the opposition’s hardline stance in opposition to the proposal for a brand new structure, it seems extremely unlikely that the draft will attain this majority. Even when it does, it’s doubtless that the Process for the Safety of the Important Nationwide Pursuits will likely be initiated within the Council of Peoples of RS, alongside a possible request for constitutional assessment earlier than the Constitutional Court docket of BiH.

Act 4: A Scenario Nonetheless Unfolding

On the day when the RS Nationwide Meeting permitted a brand new draft constitutional textual content, an act of political adventurism, the Prosecutor’s Workplace of BiH issued an arrest warrant for Milorad Dodik and two different Bosnian Serb officers for actions undermining the constitutional order. Regardless of these authorized constraints, Dodik has nonetheless traveled overseas for a number of state visits. Native police forces have been reluctant to hold out his arrest, citing numerous safety and operational considerations, whereas Interpol declined a request to problem a wished alert in opposition to him. Momentum can be constructing behind the concept that the European Speedy Operational Pressure ought to intervene and even perform the arrest. Nevertheless, for now, it seems to be like this plot twist should keep in native palms. To that finish, on 23 April 2025, whereas officers of the BiH’s State Investigation and Safety Company tried to execute the court docket’s order to arrest Dodik, they finally determined to withdraw citing a threat of a possible battle with members of the RS police. In any case, whereas the heightened tensions and ongoing authorized challenges have undoubtedly led to a precarious state of affairs, it stays, in the meanwhile, inside management.

As for the OHR, it has a novel and overarching position in BiH’s constitutional framework, particularly in a state of affairs the place political stalemate and constitutional breaches threaten the steadiness of the nation. On 24 April, solely two months after the disaster began, the HR issued a measure to droop all budgetary funding to the ruling coalition in RS (SNSD—Alliance of Unbiased Social Democrats and United Srpska). This transfer serves primarily as a political sign, as its sensible impression relies on implementation throughout all ranges of presidency – an consequence that seems unlikely inside RS. The latest joint assertion of the HR and the Peace Implementation Council, certainly, displays a measured confidence in native establishments. This marks a logical continuation of the HR’s interventions over the previous years, which have progressively moved in the direction of empowering native actors. It’s a clear sign that the ball is now within the court docket of BiH’s political leaders to uphold BiH’s constitutional and authorized frameworks. Whether or not they may rise to the event or go it again stays to be seen.

Maja Sahadžić is Assistant Professor of Constitutional Regulation on the College of Regulation and Researcher at Montaigne Centre for Rule of Regulation and Administration of Justice (Utrecht College), Visiting Professor (College of Antwerp), Senior Analysis Fellow (Regulation Institute in BiH), Fellow (Netherlands Institute of Human Rights – SIM), and Affiliated Scholar (Centre for Comparative and Transnational Regulation at CUHK). Maja is Co-chair of the Committee on New Instructions in Scholarship of the ICON S. Her analysis revolves round multilevel governance, dynamic legitimacy, dynamic stability, constitutional asymmetries, constitutional values and rules, authoritarianism, antidemocratic dangers attributable to know-how, various battle options, and constitutionalism beneath excessive measures.