The High Representative’s Assault on Judicial Independence – RS Government

According to Lady Ashton’s statement of 14 April, “the EU believes in the importance of an effective and independent judiciary, which is a key element for EU accession.” What Lady Ashton fails to acknowledge is that the OHR—the international community’s voice in BiH affairs—has consistently undermined the principle of judicial independence in BiH through its illegal actions. The following paper details the OHR’s assaults upon judicial independence.

The High Representative’s Assault on Judicial Independence

I. Introduction

Judicial independence is a crucial element of the rule of law and the foundation of courts’ legitimacy. The High Representative has severely undermined the independence of courts in BiH. In so doing, he has subverted the rule of law in BiH and diminished the legitimacy of its courts. The RS Government is committed to reversing the High Representative’s judicial abuses and restoring judicial independence.

II. The High Representative has badly undermined judicial independence in BiH.

A key element in establishing the authoritarian rule of the High Representative was the destruction of the judicial independence of domestic courts and prosecutors offices. By making the judiciary subservient to the OHR, an important restraint on authoritarian rule in BiH was eliminated.

In its annual report for 2003, the Sarajevo-based Helsinki Committee for Human Rights in Bosnia and Herzegovina condemned the judicial “reforms” carried out by the High Representative and the international community, which—far from ensuring judicial independence—made the judiciary beholden to foreign officials. As the Committee wrote:

[O]ne of the basic principles of the rule of law, the principle of the independence of judiciary, was supposed to be imperative in the course of reform. Unfortunately, however, this process took exceptionally long and resulted in obvious dependence of the members of judiciary on international community itself. This dependency on decisions and opinions of international community is still visible, and therefore, it did not contribute to the attainment to the desired goal, i.e. independence of judiciary.”

The Committee concluded, “It is with regret that we presume that judiciary will continue to be dependent on the international community, which will supervise the work of each and every individual judge and prosecutor in the forthcoming period.”

In a 2005 report, the Institute for War and Peace Reporting, a London based NGO, wrote, “[I]nternational officials, lawyers and legal experts have . . . complained to [Balkan Crisis Report] about the extent of the involvement of the OHR in the everyday functioning of the courts, urging the High Representative to loosen his iron grip on Bosnia’s judiciary.”

This international violation of judicial independence has continued unabated. As the BiH Helsinki Committee recognized in its annual report for 2007, the High Representative’s “powers seriously bring into question [the] judiciary’s independence.” In the same report, the BiH Helsinki Committee wrote that the lack of “any legal remedy” for the high representative’s decrees “limits the rule of law, because the independence of judiciary is not guaranteed in relation to this international institution.”

A. The High Representative has shattered the independence of the Constitutional Court.

The BiH Constitutional Court, the highest judicial authority in BiH, is charged by the Constitution with upholding the human, civil, and political rights enshrined in the document. As is the case with any legitimate court, its ability to fulfill its responsibility rests on its independence to act judicially rather than politically.

The High Representative, however, has acted routinely to undermine the court’s independence.

According to Professor Joseph Marko, who served as one of the three foreign judges of the Constitutional Court, the High Representative has intervened directly with Constitutional Court judges to make known his wishes. Professor Marko observed that the Court’s assertion of even very limited jurisdiction over certain legislative acts of the High Representative “was based upon the tacit consensus between the Court and the High Representative that the Court in exercising its power . . . will always confirm the merits of his legislation as can be seen from those judgments.”

In their 2010 volume, Constitution of Bosnia and Herzegovina Commentary, scholars Christian Steiner and Nedim Ademovic note that in certain cases dealing with the High Representative’s powers, the “usual practice” of the Constitutional Court has been to seek the High Representative’s opinion before making a decision.

In one case in which the Court failed to consult with the High Representative before issuing its decision, the High Representative persuaded the President and two Vice Presidents of the Court to request a review of the decision at a new, plenary session of the Court. Before that could happen, new judges took office, and the new Court ruled that the plenary review session could not be held because it had, in effect, been requested by the High Representative who had no power to do so.

Steiner and Ademovic note the practice that certain Court decisions, including the one at issue in the High Representative’s review request, were “unpublished.” Such a practice is inconsistent with Article VI (2)(b) of the Constitution, which provides that the Court shall “hold public proceedings and shall issue reasons for its decisions, which shall be published.” (emphasis added)

The High Representative has even issued a decree unilaterally ousting two appointees to the Constitutional Court. Art. VI (1)(a) of the BiH Constitution provides that two members of the Constitutional Court “shall be selected . . . by the Assembly of the Republika Srpska.” The Constitution gives the power to appoint these two members of the Constitutional Court to the “Assembly of the Republika Srpska” alone, and it does not give the High Representative or anyone else the authority to prescribe procedures for such appointments or to veto appointees. On July 26, 2002, acting in accordance with Art. VI (1)(a) of the BiH Constitution, the National Assembly of Republika Srpska appointed Prof. Miodrag Simovic and Prof. Radomir Lukić to the BiH Constitutional Court.

On 16th September 2002, acting without any legal authority, the High Representative issued a decree that purported to render “null and void and without any legal effect whatsoever” the decision of the RS National Assembly to appoint Profs. Simovic and Lukić to the BiH Constitutional Court.

The High Representative, in the decree, justified the ouster of the two Constitutional Court appointees solely by claiming that the RS National Assembly’s decisions appointing them “were taken in breach of the procedures required to be followed pursuant to the Decision of the High Representative of Bosnia and Herzegovina taken on 11 January 2001.” The High Representative’s decree did not identify how the RS National Assembly’s appointments allegedly breached procedures or even what procedures were supposedly breached. In any event, of course, the High Representative had no power to establish any such procedures in the first place.

In a further slap to the BiH judiciary, the High Representative, in the decree ousting the two new Constitutional Court appointees, declared that it “shall not be justiciable before any court in Bosnia and Herzegovina or otherwise.”

Article VI (1) of the BiH Constitution provides that Constitutional Court judges shall serve until age 70 unless they resign or are removed for cause by consensus of the other judges. A former senior OHR attorney reports that on one occasion the High Representative pressured the court to dismiss its president. The High Representative’s pressure included making a personal telephone call to at least one international judge. When the three internationally appointed judges refused to support this effort, the High Representative issued an order unilaterally reducing their salaries.

When the Constitutional Court on one occasion proved to be insufficiently compliant with the High Representative’s wishes, the High Representative’s response was a stunning abuse of the rule of law, even by the standards of the High Representative. Despite the High Representative’s pervasive efforts to control the Constitutional Court, in 2006 the Court issued a decision that took issue—delicately—with the High Representative’s summary removal and banning of public employees. The Constitutional Court granted the appeal of two individuals whom the High Representative had summarily removed and banned from public employment, Milorad Bilbija and Dragan Kalinic. The Court unanimously held that the absence of a legal remedy to challenge the High Representative’s decision violated the European Convention on Human Rights. The Court concluded that the two individuals’ “right to an effective legal remedy under Article 13 of the European Convention [had] been violated.”

However, in direct contempt of the rule of law and human rights, the High Representative responded in March 2007 by issuing a new decree nullifying the Constitutional Court’s decision.

In a press release announcing its nullification decree, the Office of the High Representative made clear that it was defying the Constitutional Court and closing off the possibility of independent review for Bilbija and Kalinic. The press release said, “The Decision of the Court does not affect the decisions of the High Representative and individuals who have been banned from public life by such decisions, including both Milorad Bilbija and Dragan Kalanic [sic], remain banned until the High Representative decides otherwise.”

As discussed below, in addition to nullifying the Constitutional Court’s decision, the High Representative’s order purported to control future actions of lower courts as well.

The High Representative continues to attack the independence of the Constitutional Court. To cite one recent example, on 5 January 2011, the High Representative issued a decree suspending the 2010 RS State Property Law until a decision of the BiH Constitutional Court ruling on the RS law has entered into force. The 5 January 2011 decree notes that a request for a review of the constitutionality of the RS law has been filed with the Constitutional Court.

Article 77 of the BiH Constitutional Court’s procedural rules permits the court to “adopt any interim measure it deems necessary in the interest of the parties or the proper conduct of the proceedings before the Constitutional Court.” Article 77 even provides that the President of the Constitutional Court may adopt interim measures if it is not possible to convene the court. While no interim measures were justified, the High Representative nonetheless chose to prejudge the case filed with the Constitutional Court and issue his own interim measures by decree, usurping the competency of the Court.

The High Representative has also prejudged the Constitutional Court’s consideration of whether it has jurisdiction to rule on the RS law. Under the High Representative’s decree, the suspension of the RS law is to continue “until a final decision of the Constitutional Court of Bosnia and Herzegovina on said Law enters into force.” This presupposes that the Constitutional Court will determine that it has jurisdiction to rule on the law. In reality, the Constitutional Court lacks jurisdiction to rule on this matter, but the High Representative commanded the Court to decide otherwise.

By issuing his decree purporting to suspend the operation of the RS law, the High Representative has also sent the Constitutional Court an unmistakable signal of his wishes with respect to the Court’s action on the RSNA law. The Constitutional Court’s judges ignore the High Representative’s desires at great risk. As explained elsewhere in this paper, the High Representative has demonstrated its willingness to penalize judges for failing to accede to its wishes, including by pushing for their ouster and reducing their salaries.

The High Representative’s latest interference in the Constitutional Court’s work shows the OHR’s profound disrespect for the independence of the Constitutional Court and the rule of law. As explained below, it is just part of the High Representative’s broader assault on the independence of the judiciary.

B. The High Representative has ordered courts throughout BiH to issue decisions according to his preferences.

The High Representative has often attacked the independence of courts throughout BiH by instructing them on how they are to rule.

As explained in Section A, above, the BiH Constitutional Court unanimously held in 2006 that the lack of a legal remedy to for an official removed and banned from public service to challenge the High Representative’s decree violated the European Convention on Human Rights. The High Representative responded by nullifying the Constitutional Court’s decision. But the High Representative’s nullification decree went much further. It gave all courts in BiH orders on how to handle any future proceedings that take “issue in any way” with the High Representative’s decisions. The order pronounced:

Notwithstanding any contrary provision in any legislation in Bosnia and Herzegovina, any proceeding instituted before any court in Bosnia and Herzegovina, which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent.

Any proceeding referred to in Paragraph 1 of this Article shall be effectively and formally notified to the High Representative by the concerned court without delay.

The order also provided that “no liability is capable of being incurred on the part of the Institutions of [BiH], and/or any of its subdivisions and/or any other authority in [BiH], in respect of any loss or damage allegedly flowing, either directly or indirectly, from such Decisions of the High Representative made pursuant to his or her international mandate or at all.” Thus, in addition to forbidding courts to adjudicate cases that take “issue in any way with” his decisions, the High Representative banned courts from affording victims of his human rights violations any kind of remedy. In the same order, the High Representative even went so far as to threaten to remove and ban any individual who took steps toward establishing a mechanism to review his decisions.

Another example of the High Representative’s interference in the decisions of lower courts arose out of the 2002 decertification of police officers throughout BiH. In 2002, the UN Mission in Bosnia and Herzegovina declared 793 police officers unfit to exercise police powers and banned them from police service for life. The UN Mission required the Ministries of Interior of Republika Srpska and the Federation to remove these individuals from their positions. Despite the severe sanctions against the decertified police officers, none had been given a hearing to contest the allegations against them. Some of the officers were never even given a reason for their lifetime ban.

In 2003, hundreds of summarily banned police officers brought judicial proceedings challenging their decertifications, seeking to clear their names and regain their eligibility to work in law enforcement. Some first-instance courts initially declared the police officers’ dismissals unlawful, in part because BiH laws did not allow for an international decertification to serve as the basis for termination of an employment contract.

The OHR, however, refused to let the courts decide these cases. In a 13 May 2003 letter to Jean-Marie Guehenno, the UN Under-Secretary-General for Peacekeeping Operations, High Representative Ashdown asked for urgent action to stop the courts. The High Representative wrote:

The Courts are ignoring or misinterpreting the legal force of the UN decisions . . . . We have made and continue to make clear that decisions issued by your Mission on certification/de-certification cannot now be re-opened either by my office, by EUPM or any other organization. We have now reached the stage, however, where we need your rapid intervention in this matter.

Ashdown’s letter continued, “I believe it is important that the grounds under which the UN decisions were taken be restated clearly and authoritatively, and in a form that can be used in public, by UN Headquarters if this debate is to be put firmly to rest.” Ashdown asked for action “to set aside the verdicts or to stay their enforcement and the progress of the pending and impending cases.”

Guehenno responded 15 days later with a letter that contained the statements requested by Ashdown. Guehenno endorsed the decertification process, said it “should not be undermined,” and warned: “I should also stress that decisions by the Commissioner of the IPTF, in relation to police certification, remain final and binding.”

Nine days later, the OHR sent Guehenno’s letter, accompanied by a letter from the Senior Deputy High Representative, to an extensive list of officials in BiH. The OHR’s letter asked that the two letters be “widely disseminated to officials and members of the law enforcement bodies and judiciary dealing with these matters so that no one is in any doubt about their responsibilities to implement the results of the certification process.” The OHR’s letter warned, “Any other course of action would inflict grave damage on the integrity of the foundations that have been laid for democratic law enforcement in this country. That is not something which Bosnia and Herzegovina or the international community could afford to accept.”

In its 2003 annual report on human rights, the BiH Helsinki Committee condemned this assault on judicial independence, calling it just one of many examples of the courts’ “obvious dependence” on the decisions and opinions of the international community in BiH. The Committee observed that in sending this letter to the courts

the international community directly interfered with the work of [the] judiciary and obviously demonstrated its intention to “control” the work of the court in the most inappropriate way. It would be difficult to imagine any judge in Bosnia and Herzegovina, whose appointment depends on a body such as High Judicial and Prosecutorial Council, established by the international community, to pass a decision that would differ from the one recommended in the letter of the High Representative.

Despite the OHR’s threatening letter, the European Stability Initiative notes that “some courts were not yet intimidated and continued to declare the dismissals unlawful. A few even ordered the reinstatement of the police officers.” In response, Guehenno wrote in October 2003 to the BiH Presidency and asked it to “take the necessary steps to set aside the judgements challenging the validity of the certification process and to ensure that no similar decisions are taken in the future.” As the ESI notes, Guehenno’s letter “left unclear on what legal basis the Presidency was to interfere with the work of the courts, and how this was compatible with the principle of separation of powers or, indeed, the rule of law.”

Even after Ashdown became convinced that the UN’s police decertification process had been deeply flawed, he rejected any role for BiH courts in reviewing decertification decisions. In an 8 March 2004 letter to Guehenno, Ashdown wrote, “These decisions will be highly political in nature. Leaving them to the BiH authorities would almost certainly lead to decisions whose effects would be to roll back the UN’s achievements in police reform.” Guehenno agreed, telling Ashdown, in a 16 March 2004 letter, “We share your reluctance to entrust such a process to the local authorities . . . .” As the ESI observes, the UN and the OHR disagreed as to the extent of the problems with the decertification process, and the “only action on which the two institutions could agree was intimidating the Bosnian courts and authorities into doing nothing.”

According to the ESI, “pressure from OHR and the UN eventually produced the desired effect. With very few exceptions, court rulings in favour of the police were ultimately overturned at second or third instance, or the cases were simply not decided . . . .”

C. The High Representative has summarily dismissed judges.

One way in which the High Representative has asserted control of the judiciary and undermined its independence has been the summary dismissal of judges. In a series of proclamations in 2002, the High Representative decreed that all judges and prosecutors of the Entities were required to resign and then reapply for their positions. The High Representative did not even make an exception for the many judges who had been given life tenure after passing a comprehensive review in 2000. The High Representative placed the burden of proof on each applicant to show that he was qualified. The High Judicial and Prosecutorial Councils (which as explained in Section D, below, were hand-picked by the High Representative), declined to reappoint approximately 30% of the sitting judges who reapplied. In effect, the High Representative had summarily fired hundreds of judges—including judges with life tenure—without so much as a hearing.

The High Representative disregarded the Council of Europe’s firm opposition to his wholesale purge of the judiciary. In written comments following a closed-door meeting with OHR on 22 March 2002, the Council criticized the High Representative’s plans to dismiss all of BiH’s judges, calling the proposed process “disguised disciplinary proceedings without any of the guarantees associated with such proceedings.” The Council pointed out that “[c]orrupt or biased judges can be removed following disciplinary proceedings.” It warned that there was “a substantial risk” that decisions in the process “may be considered as taken in violation of Article 6” of the European Convention on Human Rights. The Council of Europe concluded its comments by emphasizing that problems in the BiH judicial system

have to be resolved in a constitutional and legal manner, respecting the very principles justifying the presence of the international communities in BiH. If the International Community is not willing to abide by its own principles when faced by major difficulties, what can we expect from local politicians?

In a June 2004 report, the Parliamentary Assembly of the Council of Europe wrote, “We have heard a number of complaints regarding the reappointment process, in particular arbitrariness, lack of explanation of the decisions and absence of any appeal procedure.”

An obvious and clearly intended result of the wholesale dismissal of judges and prosecutors was to make them compliant with the wishes of the High Representative upon whose satisfaction their continued careers would depend. In addition to dismissing judges, the High Representative has also issued 14 decrees summarily suspending individual judges. In 2004, the Parliamentary Assembly of the Council of Europe called on the High Representative to “stop the practice of removing officials, including judges and elected representatives, from office.”

D. The High Representative Dominates the Judicial Appointment Process throughout BiH

The High Representative’s overwhelming influence over the judicial appointment process is another way in which he has weakened judges’ independence. Early in the previous decade, the High Representative illegally seized control of the judicial appointment process throughout BiH.

On 23 May 2002, the High Representative by decree amended the constitutions of the Federation and the RS to provide a constitutional fig leaf for his decrees that—on the same day—established High Judicial and Prosecutorial Councils (“HJPCs”) for each Entity. The High Representative decreed that these HJPCs would have the power to make all appointments of judges and prosecutors in the Entities. The High Representative also handed down a decree creating a state HJPC for BiH with the power to make all appointments to the State Court and the Prosecutor’s Office, except for foreign judges and prosecutors, the appointment power for which the High Representative bestowed on himself.

The High Representative issued a decree appointing all of the original members of all three HJPCs and continued to make all appointments to the HJPCs until the end of a “transitional period,” which lasted until 31 May 2004. The High Representative appointed eight foreigners to serve on both of the Entity HJPCs. These foreigners comprised half the membership of each Entity HJPC. The other half included six members from the Entity and two members from the other Entity. Thus, only six of 16 members of each Entity HJPC were appointed from that Entity. The High Representative also appointed foreigners to be the president and vice president of all three Entity HJPCs.

The HJPCs during this “transitional period” were extraordinarily important because they selected all of the judges of the Entities during the process in which all judges were dismissed and forced to reapply for their positions (as discussed in section C, above). The two Entity HJPCs in 2004 were merged into the central HJPC for BiH.

In addition to giving the OHR-dominated HJPCs the power to make all judicial and prosecutorial appointments in the Entities, the High Representative also decreed that they would have the power to discipline and even remove judges and prosecutors based on a long list of factors. This further undermines the independence of judges throughout BiH.

The High Representative’s domination of the selection of judges and prosecutors—both through his own appointments and through the HJPCs he created—severely compromises the independence of courts throughout BiH.

E. The OHR Dominates the State Court and Prosecutor’s Office.

Not satisfied with making judges and prosecutors personally subservient, the High Representative created an entirely new system of courts and prosecutors over and above those constitutionally established for BiH. The High Representative by decree created a new BiH State Court and related Prosecutor’s Office that claim broad powers and jurisdiction. They were established in violation of the BiH Constitution set forth in Annex 4 of the Dayton Peace Accords, and they operate in conflict with the rule of law and principles of democratic governance. Dominated by the High Representative, they are an affront to judicial independence and BiH sovereignty. The RS Government is fully committed to ending these abuses as its constitutional obligations require.

Until the early part of the last decade, there existed no State Court or Prosecutor’s Office in BiH for two reasons. First, the BiH and Entity constitutions reserve these judicial competencies to the Entities, which have their respective courts and prosecutors’ offices. Second, the democratically and constitutionally elected representatives of BiH and the Entities did not see fit to establish a State Court or Prosecutors Office through legally prescribed procedures.

In 2000, however, the High Representative took it upon himself to impose a State Court on BiH’s citizens by unilaterally decreeing a “Law on Court of Bosnia and Herzegovina.” In 2002, the High Representative, again deeming his word to be law, imposed on BiH a “Law on Prosecutor’s Office of Bosnia and Herzegovina.” Over time, through a spate of further unilateral decrees of the High Representative, the State Court and Prosecutor’s Office have grown and expanded, all without benefit of legally valid procedures. By way of example:

• In 2002 and then again in 2003, the High Representative by decree vastly expanded the jurisdiction of the imposed institutions. This included adding jurisdiction over certain crimes governed by Entity law, which further encroached upon the clear jurisdictions of the Entities’ judicial systems. Also in 2002, the High Representative by decree appointed the new State Court’s seven judges.
• In 2003, the High Representative decreed that a limited number of foreigners would be appointed to positions as judges and prosecutors, in place of BiH citizens. According to the decrees, the foreign judges and prosecutors could only be appointed during a transitional period of four years. The High Representative went on to fill each of these positions by a series of decrees.
• In October 2003, the High Representative issued a decree removing the limits to the number of foreigners who could serve as judges and prosecutors.
• In 2003 and 2004, these foreign judges and prosecutors were granted near-absolute immunity from prosecution for any violations of law, a privilege enjoyed in other countries only by foreign diplomats, not by judges and prosecutors.
• In 2004, the High Representative by decree greatly broadened the types of positions foreign judges could fill.
• Also in 2004, the jurisdiction of the State Court and Prosecutor’s Office was further expanded and the transitional period for employing foreign judges and prosecutors was extended.
• In 2004, 2005, and 2006, the High Representative continued to appoint foreign judges and prosecutors by decree.

Step by step, these carefully devised arrangements resulted in intensified and more detailed domination of the criminal and civil justice system by High Representative appointees. By the end of 2009, for example, nearly half of all prosecutors in the section on Organized Crime, Economic Crime and Corruption were foreigners, including the Deputy Prosecutor, who headed that section.

The appointment of the foreign judges and prosecutors was badly flawed, and their performance in office has been poor. A former senior OHR attorney writes:

The international judges and prosecutors were appointed by decisions of the High Representative, mostly on the basis of diplomatic whim. (There was no formal or transparent process of selection and evaluation.) Because of a lack of demand for the international positions, the quality of the judges so appointed was very mixed and their knowledge of the Bosnian legal system, under which they were supposed to be working, mostly minimal.

* * *

International judges would be appointed for two-year positions but were reappointed even if they were of poor quality, because the international community did not know how to find alternative candidates. . . . The practice of the Court was awash with elementary mistakes, in significant part deriving from the lack of familiarity of international judges and prosecutors with domestic procedures.

The foreign judges and prosecutors in BiH, who claim extraordinary immunity, operate under powerful incentives to obey and please the High Representative and other foreign officials who are involved in their appointment, setting their terms of work and compensation. Essential elements of judicial independence have been eliminated. The system has been constructed so that these appointees’ loyalty is not to the law and Constitution of BiH but to the foreign appointing authorities in the OHR. The actions of the State Court and Prosecutor’s Office bear this out. Their criminal justice system abuses have been the subject of official inquiry.

Recent statements by the President of the State Court, Medžida Kreso, have highlighted the court’s supplicant relationship to the High Representative and the court’s lack of independence. For example, in a 7 April 2011 statement to the Sarajevo daily Dnevni Avaz, Kreso called for the High Representative to halt a proposed referendum in the RS regarding the need for the State Court, saying, “The announcement of a referendum should be a clear signal for the [international community] to stop this process, as the domestic political elite has no power to do such thing.” Referring to Serbia’s efforts to secure the extradition of war crimes suspects Ejup Ganić and Jovan Divjak, Kreso told Dnevni Avaz that the “entire region” is a “prisoner of the Serbian policy of prosecution of war crimes.”

The State Court and Prosecutor’s Office has also demonstrated its lack of independence through its actions, which have shown a decided preference for those accused of war crimes against Serbs. For example, after investigating a massacre of Serbs in Tuzla, the ICTY identified five individuals for whom there was sufficient evidence for indictment. The BiH Prosecutor’s Office, however, halted the investigation of these individuals.

In December 2009, the mandate of the foreign judges was set to end, according to the law. The BiH Parliament took up the issue of extending their mandates by amending the law, but for good reason, voted against an extension. In response, the High Representative issued an order on December 14, 2009, that “overruled” the decision of the democratically elected members of the BiH Parliament. The High Representative ordered that foreign judges and prosecutors remain—either as judges and prosecutors or behind-the-scenes authorities—now with the title, “advisors.”

III. The RS Government is committed to restoring BiH judicial and prosecutorial independence and the judicial structure established by the BiH Constitution.

The RS Government is obligated to conduct its affairs according to the rule of law—including with regard to the State Court and Prosecutor’s Office. This is required by the domestic law of BiH, including the BiH and RS Constitutions, and applicable international law.

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 High Representative 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’s responsibility to cooperate with the High Representative in connection with peace implementation does not supersede the RS Government’s obligations under domestic and international law. When a decision of the High Representative conflicts with the RS Government’s duties under the constitutions of BiH and Republika Srpska or its obligations under international law, the constitution and legal obligations under BiH and Republika Srpska law have legal priority. As a matter of law, where the decisions of the High Representative are incompatible with applicable law, they are not valid or enforceable.

For this reason, the RS Government cannot accept as legally valid the High Representative’s December 14, 2009 decision extending the service of foreign judges and prosecutors. The acts of the BiH State Court and Prosecutor’s Office are also of doubtful legal validity. These agencies were created and operate pursuant to decrees imposed by the High Representative, in contravention of BiH, Entity and international law. In its Third Report to the Security Council in May 2010, the RS Government set out in full its legal position regarding these acts of the High Representative.

The RS Government’s position is not only required by law and RS values, but also 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.

IV. Conclusion

An independent judiciary is essential for the rule of law. The High Representative continues to force BiH courts and prosecutors to submit to his rule rather than the rule of law. So long as this continues, the actions of BiH courts and judicial officers, lacking independence, will also lack legitimacy.