Constitutional Court in Transition: The Future of International Judges in Bosnia and Herzegovina
Originally conceived as a transitional measure, three international judges currently sit on the Constitutional Court of Bosnia and Herzegovina. The debate about whether to retain these judges has gained momentum due to renewed legislative attempts to replace them with domestic judges, based on principles of sovereignty and the rule of law. Nevertheless, the Bosnia and Herzegovina Constitution does not envisage the removal of the international judges, only a change in the selection method of the judges. With this said, consensus for a constitutional amendment seems unlikely in a country marked by ethnic division – writes Harun Išeric
The debate about the presence of foreign judges on the Constitutional Court of Bosnia and Herzegovina (CC BiH) has intensified in recent months, under pressure from Republika Srpska (RS), one of two federal entities in Bosnia and Herzegovina (BiH). The leadership of Republika Srpska is advocating for laws to alter the Court’s makeup, particularly concerning the three judges currently selected by the President of the European Court of Human Rights (ECtHR). But, in the academic community, questions have been raised about whether foreign judges can be removed from the CC BiH under the current framework and, if so, whether this can be done via ordinary law or constitutional amendment.
Why are there foreign judges on the CC BiH?
The 1995 Dayton Peace Accords (DPA), which led to the end of the Bosnian War, brought a new Constitution and a new Constitutional Court for BiH. Building upon three earlier peace plans, the Vance-Owen Plan (1993), the Owen-Stoltenberg Peace Plan (1993), and the Washington Agreement (1994), the DPA established a hybrid Constitutional Court with six domestic and three international judges. These international judges, appointed by the president of the ECtHR after consultation with BiH’s collective Presidency, cannot be citizens of BiH or neighboring countries. The first judges were appointed for a five-year term, while judges who were subsequently appointed serve until the age of 70. The BiH Constitution did not prescribe a deadline for foreign judges’ participation in the CC BiH. Instead, in Article VI(1)(d) it allows the state legislature, the Parliamentary Assembly of BiH (PA BiH), to legislate an alternative selection method for these three judges after the initial term. Putting things into context, the first five years after the end of the war were intended to be a transitional period for the country with eventual transfer of responsibilities from international actors to the domestic authorities, including the governor of the central bank, who for the first five-year term was a foreigner, and the composition of the Commission on Human Rights, the Commission for Displaced Persons and Refugees, and the Commission to Preserve National Monuments.
Legislative proposals relating to foreign judges on the Constitutional Court
In the PA BiH, there is currently a Proposal of Law on the Constitutional Court of Bosnia and Herzegovina, introduced by the Serb delegates in the lower house of the PA BiH, aiming to replace the international judges with domestic ones. The Bill outlines that entity parliaments would select three judges to replace international judges within six months of the law entering into force. In case that does not happen, the CC BiH would continue its work without international judges, with the six domestic judges continuing to be selected by the entity parliaments (four by the House of Representatives of the Federation of Bosnia and Herzegovina (FBiH), and two by the National Assembly of the RS).
Previously, in 2007 and 2010, similar proposals introduced by Serb delegates and representatives in the PA BiH from RS were rejected. Both laws sought the exclusion of international judges and the creation of the Constitutional Court with only BiH citizens. Both laws also prescribed that current international judges would remain in office until domestic judges, who were supposed to replace them, were elected.
Another proposal in 2020, supported by Croat and Serb members of the lower house of the PA BiH, also aimed to remove international judges. According to the Bill, three judges would be appointed by the three-member Presidency of BiH, two by the FBiH, and one by RS. These judges would have to be BiH citizens, representing the different peoples, and would have to be confirmed by the lower house of the PA BiH by a majority in each caucus. Those who proposed the Bill referred to the need of establishing the full sovereignty of BiH, democratic principles, to the European Commission opinion on BiH’s membership application to the European Union and independent experts’ report on rule of law issues in BiH. The Bill also included a provision to terminate the mandate of the international judges upon the law's enactment.
The three proposals discussed above (and an identical proposal under review) have failed and are doomed to fail due to the lack of cross-ethnic support for such legislation. Proposals have been initiated by representatives of a single ethnic group or two ethnic groups, excluding the third ethnic group and thus failing to create broad-based consensus. Without cross-ethnic support, in a consociational democracy such as BiH, it is hard to expect any legislation to be passed in the PA BiH. Consequently, these proposals seem more like a way to score political points among voters and heat up the public debate, without a sincere will to reach a parliamentary agreement on how to regulate the new selection method of foreign judges.
Recently, BiH’s Ministry of Justice formed a working group with one aim: to develop legislation that would regulate the position of the international judges at the CC BiH. The only thing known so far is the title, Law on the Status of International Judges, meaning one can conclude that the law shall address more than a new method for judicial selection.
The common goals of these legislative efforts are two-fold: the elimination of the international judges from the CC BiH and replacement with domestic judges; and the termination of the current international judges’ mandates.
The common goals of these legislative efforts are two-fold: the elimination of the international judges from the CC BiH and replacement with domestic judges; and the termination of the current international judges’ mandates. The discussion for the remainder of this piece shall reflect on the first point. Before this, it is important to note that any potential constitutional amendment that would lead to earlier termination of the current international judges’ mandates might be unconstitutional. Namely, the BiH Constitution protects judicial tenure under Article IV(1)(c). It further has an eternity clause (Article X(2)), prohibiting any amendment that would eliminate or diminish constitutional rights and freedoms. Premature termination of judicial mandates might lead to prohibited human rights violations (see e.g., ECtHR Grand Chamber judgment in Baka v. Hungary).
An ordinary law, organic law, or constitutional amendment to remove international judges?
Returning to the text of the Constitution, it seems that the relevant provision is very clear. First and foremost, the Constitution does not authorize the PA BiH to adopt a law on the CC BiH that would regulate its organization and functioning. Instead, it delineates that the Court shall adopt its own rules by majority of all members (Article VI(2)(b)). Looking to comparative constitutional law, we see that constitutions typically contain a special provision providing for the parliaments to adopt a constitutional or organic law on the constitutional court, by which the parliament would regulate its organization and functioning. However, this is not the case in BiH, which led the CC BiH to conclude that: ‘[…] in order to prevent interference with the jurisdiction of the Constitutional Court, the framer of the Constitution gave the Constitutional Court the authority to regulate the "rules of the court", with the clear aim of preserving the autonomy and independence of the Constitutional Court to the full extent. Therefore, it is quite clear that the competencies of the Constitutional Court stated in the Constitution of Bosnia and Herzegovina constitute precisely the basis for the specific position and special nature of the Constitutional Court’ (para. 15).
Secondly, the BiH Constitution speaks only about a law that would change the method of selecting international judges. It does not provide the PA BiH with the ability to replace international judges with domestic judges by adopting such a law. This interpretation is supported by one of the participants of the Dayton Peace Accords negotiations, who clarified that this constitutional provision only refers to different selection methods. Current and previous High Representatives for Bosnia and Herzegovina Inzko and Schmidt also took the stance that the law can only change the method of electing foreign judges, not their removal from the Court and replacement by domestic judges.
The BiH Constitution is silent on the type of law for introducing a new method of selecting international judges . . .
Thirdly, the BiH Constitution is silent on the type of law for introducing a new method of selecting international judges. An ordinary law would regulate differently what is now a materia constitutionis (constitutional norm). But since the framers specifically referred to the law, and not to constitutional amendments or constitutional law, we can conclude that the BiH Constitution refers in this situation to an ordinary law, adopted via regular parliamentary procedure. This is even though a domestic judge’s selection procedure would be prescribed by the Constitution and the procedure for international judges by the law, potentially undermining the status of international judges.
In summary, an ordinary law on selecting international judges, which would be adopted by the PA BiH, could only change the method of selecting international judges. It would not have the power to replace them with domestic judges. Such a law would result in an informal constitutional change since it would alter a constitutional norm without adopting a formal constitutional amendment. Informal constitutional change is not unknown in the BiH Constitution. The framers of the Constitution left open the possibility of constitutional change via ordinary laws (like provisions on dividing competences between the state and entities), given the difficulty of achieving consensus on constitutional amendments in a country marked by deep ethnic division.
For foreign judges to be removed from the composition of the CC BiH, the PA BiH would need to introduce a constitutional amendment. The amendment would have to be approved by both houses of the PA BiH, with a two-thirds majority required in the lower house. But, in thirty years, the BiH Constitution has been amended only once. This happened only after the amendment was agreed upon by the three ethnic leaders and, as such, was adopted without a letter changed by the PA BiH. It is almost impossible to expect political elites to agree on any constitutional reform a year before local elections, scheduled for 2024. In light of these challenges, faced with potential court-packing and the risks of a BiH ruled only by domestic judges, that might even be a good thing!
Harun Išeric is Senior Teaching and Research Assistant at the University of Sarajevo’s Faculty of Law. He is a member of the Constitutional Affairs Council of the BiH Presidency member Dr. Denis Becirevic, member of the national self-regulatory Press and Online Media Council Complaints Commission, and member of the Local Municipal Election Commission.
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Suggested citation: Harun Išeric, ‘Constitutional Court in Transition: The Future of International Judges in Bosnia and Herzegovina’, ConstitutionNet, International IDEA, 1 December 2023, https://constitutionnet.org/news/voices/international-judges-bosnia-and-herzegovina