The Tipping Point in BiH’s Constitutional Struggle

On 26 February, the Court of Bosnia and Herzegovina (CBiH), the special court at the state level, sentenced the President of the Republic of Srpska (RS), Milorad Dodik, to one year in prison, with an additional six-year prohibition from holding office. Dodik was found guilty of failing to comply with the decisions of the High Representative (HR) in BiH, the office instituted in Annex 10 of the Dayton Peace Agreement (DPA) to support the implementation of the civilian aspects of the DPA. The verdict, while still subject to appeal, marks the conclusion of the ongoing tensions between Milorad Dodik and the Office of HR (OHR), reflecting broader calls of the former for a return to the original provisions of the DPA, colloquially called “original Dayton”. However, the verdict also signals the onset of institutional and procedural upheaval combined with political turmoil across various levels of governance in BiH.

The tense tug-of-war: Dodik vs. OHR

After a series of political maneuvers by the leadership of RS and Milorad Dodik, publicly proclaiming the idea of returning powers transferred to the state level and adopting strategic documents in that direction, in 2023, Dodik found himself embroiled in a showdown with the HR, Christian Schmidt. Namely, the National Assembly of RS passed a law aimed at blocking the publication of the HR’s decisions in the Official Gazette, essentially trying to hit a mute button on Schmidt’s authority. This was also inspired by Dodik’s recurring misguided claims that the HR lacks a legitimate mandate in BiH, although the HR’s role is clearly established in Annex 10 of the DPA and is consistently reaffirmed by United Nations Security Council resolutions. However, before the law could even take effect, Schmidt swooped in and annulled it and then turned up the pressure by amending the Criminal Code of BiH, making non-compliance with the HR’s decisions a criminal offense. As Dodik persisted in threatening the expulsion of the HR from BiH, in 2024, as part of a broader “integrity package”, Schmidt amended the Election Law of BiH, which now allows for the termination of a political mandate based on a final and binding court judgment that prohibits the mandate holder from carrying out their duties. This shift led to a landmark development: for the first time, judicial institutions, bolstered by these legal reforms, chose to cooperate and take action against Dodik and on 26 February 2025, he was sentenced to one year in prison, with an additional six-year prohibition from holding office for failing to comply with the HR decisions. However, the verdict also initiated a serious political and constitutional crisis.

Response 1: new legislation in RS

Prompted by Dodik, on the very same day of the verdict, the government of RS initiated a series of laws under emergency procedures, including the Draft Law on the Non-Application of the Law and Prohibition of Activities of Extra-Constitutional Institutions of BiH (the Law on Non-Application) and the Draft Law on Amendments to the Criminal Code of RS. The National Assembly of RS voted on these laws on 27 February, with only three votes against them, though the opposition decided to sit this one out. Key highlights of these legislative moves include the fact that the Law on Non-Application effectively annuls the authority of the Court of BiH, the Prosecutor’s Office of BiH, the High Judicial and Prosecutorial Council of BiH (HJPC), and State Investigation and Protection Agency (SIPA) within the RS entity. In a twist, it also provides immunity to those who enforce this law, exempting them from criminal liability, while ensuring they receive full protection from RS authorities. Additionally, the Law on Amendments to the Criminal Code introduces a penalty of up to five years in prison for anyone who defies the Law on Non-Application – a bold legal maneuver designed to push back against BiH’s judicial oversight. Regardless, many officials from the annulled institutions simply disregarded calls to withdraw from state institutions.

Importantly, the contents of these laws follow Dodik’s repeated calls for a return to the so-called original Dayton framework, a position he has consistently advocated in an effort to reassert the powers of the RS that were once transferred to the state level. Given the initially narrow exclusive powers of the state level in BiH, established in the Constitution of BiH, additional competences (such as defense, judiciary, state level tax authorities) have been transferred from the Entities to the state level over time. These transfers have occurred either through agreements between the Federation of BiH (FBiH) and RS (based on the Constitution of BiH) or as a result of interventions by the HR (based on Annex 10 of the DPA and the so-called Bonn powers). For example, HJPC was created after an agreement between FBiH and RS, while the laws for the Court and Prosecutor’s Office of BiH were imposed by the HR given that a compromise could not be reached otherwise.

By pushing for a reversion to the so-called original Dayton, Dodik seeks to challenge the extent of authority transferred to the state level, particularly in areas where the HR has intervened (judiciary). However, the Constitution of BiH does not prescribe a procedure for returning powers, only for acquiring them. By legal analogy, one could argue that the return of powers could be achieved in the same way as they were transferred – by mutual agreement between the Entities. However, this would require extensive negotiations between the FBiH and RS, which seems unlikely given the current political landscape in BiH. Another way would be that the Parliamentary Assembly of BiH could also amend or repeal the laws transferring the powers to the state level, however, the political will to make such changes is questionable without considerable external pressure or an internal shift in the political dynamics. An alternative approach would be to seek a constitutional review of these laws or HR’s decisions transferring the powers to the state level through the Constitutional Court of BiH. However, this would require the political establishment in BiH to engage in a process that is often seen as highly contentious and politically sensitive.

Obviously, Dodik chose none of the above-mentioned options and opted to navigate the legal gray area. From a purely constitutional standpoint, the laws adopted in the National Assembly of RS can be easily dismissed. The Entity legislatures do not have the authority to amend or repeal laws passed by the Parliamentary Assembly of BiH or the HR. These laws transferring powers to the state level can only be amended or repealed within the Parliamentary Assembly of BiH, as it is the body that enacted them. Similarly, laws imposed by the OHR can only be altered or repealed by the OHR and the Parliamentary Assembly of BiH.

The constitutional instruments and mechanisms available to challenge the laws adopted by the National Assembly of RS are robust. Firstly, there is the Procedure for the Protection of Vital National Interest in the Council of Peoples of RS which can be initiated by the Bosniak and Croat caucuses. The process culminates in a ruling by the Constitutional Court of the RS. However, reflecting a broader sentiment of skepticism and drawing from past experience, the Bosniak caucus has judged the procedure to be ineffective. Secondly, there is a Request for Constitutional Review before the Constitutional Court of BiH. On 7 March 2025, the Constitutional Court of BiH, in exercising its constitutional mandate, issued an interim measure that effectively suspends the contested laws, temporarily halting their application until a further decision can be reached on their constitutionality. This should have allowed for a period of legal stability during which the Constitutional Court of BiH would review the substantive constitutional issues at hand. However, that did not happen.

Response 2: new Draft Constitution of RS

On 12 March 2025, the National Assembly of RS held a special session and adopted a decision to initiate the adoption of a new Constitution of the RS. The following day, the National Assembly of RS adopted the Draft Constitution of RS, subject to further procedural steps until its final entry into force.

Procedural puzzle

From the procedural standpoint, the Constitution of RS (Chapter XI) precisely regulates the complex procedure for amending the Constitution, which consists of the following procedural aspects: (1) The submission of a proposal by the President, the Government, or at least 30 members of the National Assembly of RS to initiate changes to the Constitution of the RS, which is decided by the National Assembly of RS by a majority vote of the members of the National Assembly; (2) The determination of a draft act on the application of the Constitution, by a majority vote of all members of the National Assembly of RS; (3) A public debate on the adopted Draft; (4) The determination of a proposal for an act to amend the Constitution by the Constitutional Commission of the National Assembly; (5) The decision-making on the proposal for constitutional amendments, which is a joint competency of the National Assembly and the Council of Peoples of RS. To adopt an amendment to the Constitution, it is necessary for at least 2/3 of all members of the National Assembly (which nominally means at least 56 members) and a majority of the members of the Council of Peoples from each constituent people’s group and the Others to vote in favor.

When considering the process of adopting a new Constitution in the current constitutional moment, it is in the third phase – the holding of public debates on the adopted Draft Constitution in cities across the RS. Therefore, the adopted Draft currently does not produce any legal consequences in the legal order. However, given that the Draft Constitution of RS was adopted by a simple majority, rather than a qualified majority, due to the clearly articulated negative stance of the opposition, and assuming that this stance will be consistently maintained in the later phases, it cannot be expected that the final decision (the fifth phase) will gain the necessary majority in the National Assembly for its entry into force. Additionally, an additional guarantee is the protective mechanism within the Council of Peoples.

Importantly, given that the provisions of the Constitution only recognize the possibility of amending, but not adopting an entirely new constitutional text, the question is whether the authority to amend also implies the authority to adopt a new Constitution. Although there is no unified stance on this, if the constituent authority for constitutional revision is exercised by both the National Assembly and the Council of Peoples of RS, the authority to amend arguably includes adopting an entirely new constitutional text.

Material incompatibility

Regarding the material component, the adopted Draft Constitution includes provisions that are incompatible with BiH’s constitutional order.

(1) The Draft Constitution defines the RS as a “state of the Serb people” and abolishes the Council of Peoples of RS, which protects the interests of the constituent peoples. This contradicts the Constitution of BiH, where Bosniaks, Serbs, and Croats are recognized as constituent peoples while a landmark ruling by the Constitutional Court of BiH (U-5/98) establishes the collective rights of constituent peoples across the entire territory of BiH.

(2) Furthemore, the Draft Constitution regulates the procedure for the revision of the Constitution of BiH, stipulating that the decision to sign an agreement on amendments to the Constitution of BiH is made by the National Assembly of RS. As such, the Draft Constitution encroaches on the exclusive competence of the Parliamentary Assembly of BiH, which is the only authorized body to decide on amendments to the Constitution of BiH.

(3) Additionally, the Draft Constitution eliminates the legal effect of laws that do not arise from the exclusive competences of BiH or Entity agreements and delays the application of laws adopted by the Parliamentary Assembly of BiH until they are confirmed by the National Assembly of BiH. That strips such laws of their “direct application” status. The Constitution of BiH clearly takes precedence over Entity constitutions, as the Entities are required to comply with it. Moreover, the Constitutional Court of BiH has the competence to review the compatibility of Entity constitutions and laws with the BiH Constitution. Also, the Constitution of BiH defines the distribution of powers between BiH institutions and the Entities, outlining the BiH’s exclusive powers and presuming that all other powers belong to the Entities. It also recognizes “additional competences,” allowing BiH institutions to assume powers from lower levels of government when it is necessary to preserve sovereignty, territorial integrity, political independence, and international subjectivity of BiH. These competences have justified the supporting actions by the (O)HR (establishing state level judiciary) and the transfer of powers through the Entity agreements (especially concerning defense and the state level tax authorities). In this sense the “additional competences” have their legitimate constitutional foundation. Accordingly, the new provisions of the Draft Constitution of RS establishing the Army of RS are likely unconstitutional.

(4) Further on, the Draft Constitution introduces a special category of “representatives of the RS in the institutions of BiH” and the obligation for them to represent the interests of RS in accordance with the Constitution of RS and the acts of the National Assembly of RS. This ”principal-agent” approach is incompatible with the structure and functioning of the institutions of BiH, as confirmed by the Constitutional Court of BiH. Mandate holders or appointed officials act in the public interest and not as representatives of the unit from which they were elected or appointed.

(5) Finally, the Draft Constitution of RS establishes the right to self-determination of the RS. All such forms of altering the status of RS must be previously envisaged by the Constitution of BiH, which is not the case as the Constitution of BiH only mandates the possibility for Entities to establish special parallel relations with neighboring states, subject to the respect and inviolability of BiH’s sovereignty.

Protecting the constitutional order of RS

The National Assembly of RS also adopted the Law on the Protection of the Constitutional Order of RS, which defines criminal offenses against the constitutional order of the RS and establishes Special Prosecutor’s Office and Special Court of RS for the Protection of the Constitutional Order of RS. This is clearly in conflict with the provisions of the Law on the HJPC of BiH. The entry into force of this law was prevented (for now) by the use of a veto mechanism in the Bosniak club within the Council of Peoples of the RS.

The road ahead for BiH

It is evident from the joint statement of the HR and the Peace Implementation Council (PIC) that, for the time being, the resolution of the ongoing crisis is entrusted to domestic institutions. The current institutional reaction has been limited to the actions of the Constitutional Court of BiH, aimed at invalidating the laws adopted by the National Assembly of RS, as well as to an investigation by the Prosecutor’s Office of BiH against Milorad Dodik (President of RS), Radovan Višković (Prime Minister of RS), and Nenad Stevandić (President of the National Assembly of RS), based on the suspicion that they committed the criminal offense of Attacking the Constitutional Order of BiH.