According to the government of Republika Srpska (RS), the Office of the High Representative (OHR) has “subverted the rule of law in Bosnia and Herzegovina and diminished the legitimacy of its courts” by consistently interfering in the functioning of the country’s judiciary. In a recent statement, the RS government said that it was “committed to reversing the High Representative’s judicial abuses and restoring judicial independence,” which it called the “foundation of [the] courts’ legitimacy.”
The RS government cited the findings of foreign NGOs, including the Institute for War and Peace Reporting and the Helsinki Committee for Human Rights in Bosnia and Herzegovina, which concluded that the OHR had a long history of interfering “in the everyday functioning of the courts,” and that the High Representative handled the judiciary of BiH with an “iron grip.”
The constitution of BiH, written in part by representatives of the international community as part of the Dayton Peace Accords, established the BiH Constitutional Court as the country’s highest judicial authority. Sources cited by the RS government—which include former judges of the Constitutional Court and attorneys from the OHR—say that the High Representative has often made his wishes known to the court regarding the verdicts of cases under the court’s jurisdiction. When the court has returned verdicts contradicting the HR’s wishes, he has taken more direct, coercive action against the court. In 2002 the HR issued a decree removing two constitutionally appointed judges from the court. In another case, the HR punished the court’s disobedience by reducing the salaries of the court’s judges. In 2002 the HR also decreed that all BiH judges and prosecutors—even those with lifetime appointments—had to resign and then reapply for their positions.
The OHR has further decreed, in 2006, that any decision of the court “which challenges or takes issue in any way whatsoever” with the will of the HR would be declared invalid. In line with this decree, the OHR has consistently invalidated court decisions with which it disagrees, or has prevented the courts from hearing cases on which the OHR had already ruled.
Not satisfied with making the judges and prosecutors of the Constitutional Court personally subservient, the High Representative created in 2000 an entirely new system of courts and prosecutors over and above those constitutionally established for BiH. A new BiH State Court and related Prosecutor’s Office was created which claims broad powers and jurisdiction over matters reserved by the BiH constitution to the country’s two Entities, Republika Srpska and the Federation of Bosnia and Herzegovina. These courts were established and regulated entirely by the decrees of the HR, with no constitutional oversight, and composed largely of foreigners unfamiliar with Bosnian law, selected by the HR and granted immunity by his decree from local laws.
The RS government maintains that the High Representative lacks the legal authority to issue the decisions that established and altered the State Court and Prosecutor’s Office. The High Representative’s legal mandate is established by the agreement set out in Annex 10 of the Dayton Peace Accords. Annex 10 does not give the HR power to violate the Dayton Accords, other elements of international law, or the Constitution of BiH. Annex 10 does not remotely suggest that the HR has the power to enact any legislation by decree, much less the power to establish courts with national jurisdiction and with the authority to overrule constitutionally mandated courts in the Entities. Certainly Annex 10 does not allow the HR to overrule legally promulgated decisions of the elected members of BiH’s Parliamentary Assembly, nor does Annex 10 grant the HR authority to undermine the domestic legal system by appointing and removing judges and prosecutors in BiH – be they foreigners or BiH citizens.
The RS Government says that its opposition to the actions of the OHR is required by law and RS values, and is consistent with fundamental principles cherished by the U.S., EU, and other democratic states. These include a commitment to democracy, transparency, accountability, protection of human rights and the rule of law. According to the RS government, so long as the High Representative continues to force BiH courts and prosecutors to submit to his rule rather than the rule of law, the actions of BiH courts and judicial officers, lacking independence, will also lack legitimacy.
