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

Prompted by a Constitutional Court decision to suspend the application of a recently adopted law, the National Assembly of Republika Srpska – one of the two Entities of Bosnia and Herzegovina (BiH) – initiated the drafting of a new constitution. The move has sparked considerable debate, particularly due to concerns over the constitutionality of several controversial provisions. The draft has emerged amidst escalating tensions between the RS leadership and BiH’s state institutions, a dynamic that increasingly challenges state-level authority as well as the Office of the High Representative – writes Professor Maja Sahadžić

Act 1: The Unlikely Feud that Keeps on Giving

Since the conclusion of the Bosnian War (1992-1995), Bosnia and Herzegovina (BiH) has remained under the continuous oversight of the Office of the High Representative (OHR). Established in Annex 10 of the Dayton Peace Agreement (DPA), the OHR was tasked with overseeing the implementation of the civilian provisions of the agreement, including the Constitution of BiH outlined in Annex 4. Its primary role is to ensure the enforcement of peace and maintain stability in a deeply divided post-war society. The DPA, along with the powers it grants to the OHR, has been under the constant scrutiny of the government of Republika Srpska (RS), one of BiH’s two constituent Entities alongside the Federation of BiH (FBiH). This tension has culminated in the recent adoption of a new draft constitution by the National Assembly of RS, which is widely perceived as a threat to the country’s constitutional order.

The presence of the OHR has always sparked a debate, particularly regarding the perceived democratic deficit it creates.

The presence of the OHR has always sparked a debate, particularly regarding the perceived democratic deficit it creates. However, no one has contested the OHR’s role more than Milorad Dodik, the leader of the RS government who has enthusiastically challenged the legitimacy of the High Representative (HR), even though the HR’s authority is explicitly defined in Annex 10 of the DPA and has been consistently endorsed and reaffirmed through United Nations Security Council (UNSC) resolutions.

Since 2019, Dodik’s opposition has escalated significantly, with the National Assembly of RS passing nonbinding resolutions that formally reject the so-called “Bonn Powers” of the OHR, which grant the HR the authority to impose laws and amendments, dismiss public officials, and have even been interpreted by the HR to allow annulment of constitutional court decisions.

In addition, in 2021, the RS adopted a strategic document which outlined a series of demands, including (1) returning powers that were transferred to the state level, including those related to the Armed Forces and the state-level judiciary and tax authorities; (2) abolishing the state-level security agencies; and (3) annulling HR decisions in the National Assembly of RS. This political maneuvering has prompted mixed reactions. Legal experts, political stakeholders and the international community have found themselves oscillating between treating Dodik’s repeated threats as routine bluster or genuine escalation, while the HR maintained a resolutely neutral stance in his responses.

The amendments introduced severe sanctions, including removal from official duties, termination of public employment, and a ban on holding public office.

Further on, in 2023, Dodik found himself at the center of a significant confrontation with the present HR, Christian Schmidt, as the National Assembly of RS passed a law designed to prevent the publication of the HR’s decisions in the Official Gazette, effectively attempting to disregard Schmidt’s authority. However, before the law could be implemented, Schmidt intervened decisively by annulling it. Undeterred, Dodik announced his intention to sign a decree enacting the law regardless of its annulment. In response, in 2024, Schmidt escalated the situation by amending the Criminal Code of BiH to criminalize non-compliance with the OHR’s decisions. The amendments introduced severe sanctions, including removal from official duties, termination of public employment, and a ban on holding public office. This move intensified the pressure on Dodik and other officials, reinforcing the HR’s legal authority within BiH.

The same year, as part of a broader “integrity package”, Schmidt also amended the Election Law of BiH, introducing provisions that allow for the termination of a political mandate if a final and binding court judgment prohibits the mandate holder from fulfilling their duties. This way, Schmidt appeared to have crafted a strategic workaround to terminate Dodik’s political mandate before its official expiry, avoiding the use of the controversial Bonn Powers to remove or suspend him, and empowering judicial institutions to join the fray and take action against Dodik.

On 26 February 2025, the Court of BiH (special, state-level court) sentenced Dodik to one year in prison (subject to appeal), and imposed a six-year ban on holding any public office for willfully disregarding the decisions of the HR in BiH. While this ruling underscored the BiH judiciary’s commitment to enforcing compliance with the DPA, it also initiated a serious political and constitutional crisis in BiH.

Act 2: Unconstitutional Laws

In response to the Court of BiH’s ruling, using an emergency procedure, the RS government introduced a set of laws which prohibit the activities of BiH’s state judiciary and law enforcement within the territory of RS. It also introduced amendments to the Criminal Code, including a penalty of up to five years of imprisonment for non-compliance with the new laws by public officials in RS or at the state level. On 27 February, the National Assembly of RS voted in favor of the laws, with only three votes in opposition, and abstention by the political opposition. The adopted laws, however, stand on shaky legal ground, to say the least. No constitutional or legal provision allows a lower-level government to override laws adopted by a higher-level government, and Entity legislatures cannot amend or repeal laws passed by the BiH Parliamentary Assembly or the OHR.

On 7 March 2025, following a request for Constitutional Review submitted by a member of the Presidency of BiH, the Constitutional Court of BiH issued a provisional measure suspending the application of these new laws until a final ruling on their constitutionality is rendered. In a rather peculiar turn of events, the Bosniak Caucus in the Council of Peoples of RS opted not to initiate the Procedure for the Protection of Vital National Interests, a process to contest a contentious legislative proposal. This procedure serves as a constitutional safeguard, allowing constituent peoples to challenge laws they believe infringe upon their vital national interests, potentially leading to a review by the RS Constitutional Court. The decision was based on their assessment that the procedure had proven ineffective, as past efforts to safeguard vital national interests before the Constitutional Court of RS had ended in failure.

More than a mere legal counter-strike, the adoption of these laws (together with the standoff with the OHR) reflects broader calls from the RS for a return to the […] “original Dayton”.

More than a mere legal counter-strike, the adoption of these laws (together with the standoff with the OHR) reflects broader calls from the RS for a return to the original terms of the DPA, before subsequent reforms, international interventions, and Constitutional Court of BiH and HR decisions, often referred to as the “original Dayton”. This term, while lacking legal precision, has become a political catchphrase evoking a desire to minimize the layers of international oversight. It also represents a legal attempt to hit the rewind button on the transfer of powers that has taken place so far.

In fact, given the narrow exclusive powers of the state level in BiH, which were established in the DPA and its Annex 4 (the Constitution of BiH), certain powers have been transferred from the Entities to the state level over time. This transfer has occurred through agreements between the FBiH and RS, BiH’s two constituent Entities, or as a result of the HR’s interventions. Importantly, these transfers have encompassed critical areas such as the military, security agencies, value-added tax, and the working of BiH’s prosecutorial and judicial bodies, which were deemed necessary for the functioning of the state. To elaborate, the Constitution of BiH stipulates that powers at the Entity level can only be transferred to the state level through mutual agreement between the Entities, while the Agreement on Civil Enforcement (Annex 10 of the DPA, later expanded by the Bonn Powers) grants the HR the ability to impose changes as necessary. For example, the High Judicial and Prosecutorial Council (HJPC) was established after Entity powers in this area were transferred to the state level via an agreement between the FBiH and RS in 2004. The Laws on the Court and Prosecutor’s Office of BiH, however, were imposed by the HR in 2000 and 2002 to reform the judicial system.

By invoking the “original Dayton” and adopting these new laws, Dodik therefore seeks to actively contest the scope of powers that have gradually shifted to the state level.

By invoking the “original Dayton” and adopting these new laws, Dodik therefore seeks to actively contest the scope of powers that have gradually shifted to the state level. This move forms part of a broader political strategy to recalibrate the balance of power within BiH, though it remains unclear whether reversing this shift is feasible under the current legal and constitutional framework. In fact, the Constitution of BiH does not define a procedure for returning powers to the Entities, only for transferring them from the Entities to the state level. This presents a significant challenge in terms of legal clarity and procedure. Several approaches have been explored to address the issue: (1) By legal analogy, one could argue that returning competencies could, at least in theory, follow the same mutual agreement mechanism by which they were originally transferred; (2) The Parliamentary Assembly of BiH could amend or repeal the contested laws; and (3) These laws or decisions could be reviewed by the Constitutional Court of BiH. However, this legal uncertainty should be addressed before any negotiations or parliamentary procedures for the transfer of powers begin, and would likely require the intervention of international actors to mediate the process. While the idea may have political appeal to some, the legal and procedural hurdles would make such a move difficult, if not impossible, without substantial compromise.

Act 3: Unconstitutional Constitutional Provisions

On 13 March 2025, spurred by the Constitutional Court of BiH’s decision to suspend the application of the laws adopted by the RS National Assembly, the Assembly convened a special session and voted to initiate the drafting of a new Constitution for RS, mandating the Committee for Constitutional Affairs to prepare the draft. The next day, the National Assembly adopted a draft Constitution of the RS via a special session, marking a swift and rather dramatic constitutional pivot. Following the conclusion of a 30-day public consultation on the draft, the debate has shifted to how the final version will be adopted, with options under consideration including a public vote, a secret ballot, or a referendum.

Collectively, these actions signal a strategic and deliberate shift in the constitutional and institutional configuration of BiH, posing substantial implications for the sovereignty and territorial integrity of the state.

Some of the provisions included in this draft represent a challenge to the powers of state level in BiH and rest on legally precarious foundations. First, the draft introduces mechanisms for constitutional revision of the Constitution of BiH, specifically in relation to powers that are not designated as exclusive to the state level or are not derived from a mutual agreement between the Entities. Second, the constitutional text includes a right to self-determination for RS and the possibility to form confederal relationships with other states. Third, the text suggests the establishment of separate armed forces for RS. Collectively, these actions signal a strategic and deliberate shift in the constitutional and institutional configuration of BiH, posing substantial implications for the sovereignty and territorial integrity of the state.

In fact, no constitutional or legal provision in BiH allows a lower-level government to override laws adopted by a higher-level government, and there are no constitutional provisions at the state level that permit a lower tier of government to unilaterally decide about or override constitutional provisions enacted at the state level in BiH. Any attempt by a subordinate level to reverse or nullify decisions made at the state level is not only legally unfounded but also ventures into the realm of institutional improvisation. The Constitution of BiH holds supremacy over the constitutions of the Entities, which are required to operate in conformity with its provisions. This hierarchical relationship is foundational to the constitutional order of BiH, hence the Entities have no legal space to diverge from it or contradict it. The provisions adopted by the RS National Assembly also seek to exclude certain state-level powers on the basis of interventions of the HR, thereby implicitly challenging their legitimacy.

In addition, introducing a right to self-determination and the possibility to form confederal relationships lack legal backing as the Constitution of BiH does not provide a foundation for such provisions. Under the Constitution of BiH, the Entities only have the right to establish special parallel relationships with neighboring countries. These relations do not require approval from the state level, but they must be of such a nature that they do not endanger the sovereignty or territorial integrity of BiH. Additionally, each Entity may conclude (international) agreements with other states and international organizations. However, the Parliamentary Assembly of BiH must give its consent for such agreements (unless it provides otherwise by law). Although not explicitly stated, it is implied that such agreements may only be concluded in areas within the Entities’ constitutional competencies, consistent with the principle of division of powers in federal states.

The proposal to establish armed forces within RS also raises significant constitutional concerns, particularly given that powers in this domain were transferred to the state level, remarkably, through the mutual agreement of the Entities themselves. This stands as one of the rare, and arguably successful, instances of power being transferred in one of the most contentious areas. As previously noted, the Constitution of BiH contains no provision for the reversal of such transferred powers, and any potential procedure for doing so remains theoretical.

If the amendment process does not allow for the adoption of a completely new text, doing so would fundamentally disrupt the constitutional framework.

Finally, the provisions of the current Constitution of RS only acknowledge the possibility of amending the Constitution, rather than adopting an entirely new constitutional text. The question therefore arises: Does the authority to amend the Constitution inherently include the authority to adopt a completely new text? On the one hand, it could be argued that such a procedure is simply not feasible. If the amendment process does not allow for the adoption of a completely new text, doing so would fundamentally disrupt the constitutional framework. On the other hand, one might argue that the involvement of both the RS National Assembly and the Council of Peoples of RS, both of which are integral to the amendment process, might legitimize the process of adopting a new constitution.

Importantly, according to the current Constitution of RS, an amendment requires at least two-thirds of the RS National Assembly members and a majority of the RS Council of Peoples members to vote in favor. However, given the opposition’s hardline stance against the proposal for a new constitution, it appears highly unlikely that the draft will reach this majority. Even if it does, it is likely that the Procedure for the Protection of the Vital National Interests will be initiated in the Council of Peoples of RS, alongside a potential request for constitutional review before the Constitutional Court of BiH.

Act 4: A Situation Still Unfolding

On the day when the RS National Assembly approved a new draft constitutional text, an act of political adventurism, the Prosecutor’s Office of BiH issued an arrest warrant for Milorad Dodik and two other Bosnian Serb officials for actions undermining the constitutional order. Despite these legal constraints, Dodik has nonetheless traveled abroad for several state visits. Local police forces have been reluctant to carry out his arrest, citing various security and operational concerns, while Interpol declined a request to issue a wanted alert against him. Momentum is also building behind the idea that the European Rapid Operational Force should intervene and even carry out the arrest. However, for now, it looks like this plot twist will have to stay in local hands. To that end, on 23 April 2025, while officers of the BiH’s State Investigation and Protection Agency attempted to execute the court’s order to arrest Dodik, they eventually decided to withdraw citing a risk of a potential conflict with members of the RS police. In any case, while the heightened tensions and ongoing legal challenges have undoubtedly led to a precarious situation, it remains, for the time being, within control.

As for the OHR, it has a unique and overarching role in BiH’s constitutional framework, especially in a situation where political stalemate and constitutional breaches threaten the stability of the country. On 24 April, only two months after the crisis started, the HR issued a measure to suspend all budgetary funding to the ruling coalition in RS (SNSD—Alliance of Independent Social Democrats and United Srpska). This move serves primarily as a political signal, as its practical impact depends on implementation across all levels of government - an outcome that appears unlikely within RS. The recent joint statement of the HR and the Peace Implementation Council, indeed, reflects a measured confidence in local institutions. This marks a logical continuation of the HR’s interventions over the past years, which have progressively moved towards empowering local actors. It is a clear signal that the ball is now in the court of BiH’s political leaders to uphold BiH’s constitutional and legal frameworks. Whether they will rise to the occasion or pass it back remains to be seen.

Maja Sahadžić is Assistant Professor of Constitutional Law at the School of Law and Researcher at Montaigne Centre for Rule of Law and Administration of Justice (Utrecht University), Visiting Professor (University of Antwerp), Senior Research Fellow (Law Institute in BiH), Fellow (Netherlands Institute of Human Rights - SIM), and Affiliated Scholar (Centre for Comparative and Transnational Law at CUHK). Maja is Co-chair of the Committee on New Directions in Scholarship of the ICON S. Her research revolves around multilevel governance, dynamic legitimacy, dynamic stability, constitutional asymmetries, constitutional values and principles, authoritarianism, antidemocratic risks caused by technology, alternative conflict solutions, and constitutionalism under extreme measures.

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Suggested citation: Maja Sahadžić, ‘Constitutional Standoff in Bosnia and Herzegovina: Drama in Four Acts (So Far)’, ConstitutionNet, International IDEA, 28 April 2025, https://constitutionnet.org/news/voices/constitutional-standoff-bosnia-and-herzegovina-drama-four-acts-so-far

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