To be effective, government institutions, particularly those associated with the justice system, must be seen by citizens to be legitimately created and acting with impartiality and commitment to the rule of law. The proposed referendum will measure public perception in this respect and provide a sound foundation for the direction of government reform widely advocated within BiH and the international community.
Referenda are fully consistent with the BiH Constitution and the practice of democratic states throughout Europe and around the world. The Dayton Accords contain no provisions that could possibly be interpreted as prohibiting or restricting referenda. As the Council of Europe’s Parliamentary Assembly said in a 2007 resolution, “Referendums are an instrument of direct democracy which belong to the European electoral heritage.”[1] The Council of Europe’s Congress of Local and Regional Authorities recognized in a 2007 resolution that “referendums, whether at national, local or regional level, constitute one of the main instruments of direct democracy giving citizens the possibility to take part in political decision making as well as in public matters which directly concern them . . . .”[2]
The RS Constitution has long specifically provided for referenda at Articles 70 and 77. The Council of Europe’s Venice Commission has thoroughly scrutinized the consistency of the RS Constitution with the BiH Constitution,[3] and it has never objected to the RS Constitution’s referendum provisions. The RS’s 2010 referendum law was drafted in light of the Code of Good Practice of the Venice Commission[4] and the Recommendations of the Council of Europe’s Committee of Ministers on citizens’ participation in public life at the local level.[5]
The BiH Court and Prosecutor’s Office have lost public confidence
War crimes must be tried and punished without regard to the ethnic group or political connections of their perpetrators and victims. The BiH Justice System has shown, instead, a consistent pattern of discrimination against Serb victims of war crimes and a penchant for acting according to the wishes of the Bosniak SDA party.
The International Crisis Group has criticized the Prosecutor’s Office for its failure to prosecute some of the war’s worst war crimes against Serbs.[6] Even U.S. Deputy Chief of Mission Nicholas M. Hill recently observed that the Chief Prosecutor is “largely believed to be heavily influenced by Bosniak political forces” and that there are “complaints that the prosecutor’s office has too many strong-willed SDA acolytes on its staff.” This failure is apparent in the BiH Prosecutor’s Office’s record. Out of 7,480 Serb civilian war deaths (as estimated by the ICTY), just ten have led to a final conviction in the Court of BiH.
Some examples of the Prosecutor’s Office’s refusal to seek justice include:
- Its refusal even to investigate newly uncovered evidence—10,000 pages of documents submitted by a former Bosniak SDA member—linking the President of the BiH House of Representatives to complicity in crimes by the sadistic El Mujahid Detachment of the Army of the Republic of BiH’s (ARBiH) 3rd Corps;
- Its blocking of the prosecution of Bosniak commander Naser Orić and others for a series of major war crimes in the Srebrenica area in spite of significant evidence and Orić’s open boasting about atrocities;
- Its obstruction of the BiH State Investigation and Protection Agency’s (SIPA) efforts to investigate Šemsudin Mehmedović, an SDA Member of the House of Representatives, over the illegal imprisonment and abuse of hundreds of Serb civilians in Tešanj, where Mehmedović was chief of police (the BiH Prosecutor’s office went so far as to prosecute SIPA Director Goran Zubac on dubious charges, with the SDA member of the BiH Presidency crowing, “[w]e will likely send [Zubac] to prison.”[7]);
The BiH justice system directly affects RS citizens and is an area of Entity competence under the BiH Constitution
The referendum concerns a matter within the competence of the RS as an Entity. The BiH Constitution allocates judicial matters to the Entities, except for the BiH Constitutional Court. The Constitution provides, “All governmental functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities,” and it does not assign any judicial matters—with the exception of the Constitutional Court—to BiH institutions. Thus, as the International Crisis Group has averred, “Dayton allotted judicial matters to the entities, apart from a state Constitutional Court.”[8] Because the Constitution allotted judicial matters to the Entities, the RS’s planned referendum is in an area of its competence.
Additionally, the RS Government has a legal duty under Article II, Section 1, of the BiH Constitution to “ensure the highest level of internationally recognized human rights and fundamental freedoms to its citizens.” These include the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, which apply directly in BiH, having priority over all other law. Section 6 of Article II places responsibility explicitly and directly upon “all courts, agencies, governmental organs, and instrumentalities operated by or within the Entities . . .” to implement the human rights and fundamental freedoms recognized in Section II. This responsibility obviously includes how citizens within the RS are treated by the judicial systems to which they are subject. For these reasons, among others, the RS is acting within its competences to hold a referendum soliciting the views of its citizens with respect to these matters.
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[1] Council of Europe, Parliamentary Assembly Res. 1592 (2007), 23 Nov. 2007, para. 1.
[2] Council of Europe, Congress of Local and Regional Authorities Res. 235 (2007).
[3] See, e.g., Venice Commission, Compatibility of the Constitution of the Republika Srpska with the Constitution of Bosnia and Herzegovina following the Adoption of Amendments LIV – LXV by the National Assembly of Republika Srpska, Secretariat Memorandum on the basis of the Commission’s opinion appearing in document CDL(96)56 final.
[4] CDI AD 2007-2008.
[5] Rec (2001) 19; Memorandum from Jasna Brkić, Minister of Economic Relations and Regional Cooperation, Republika Srpska, to Zoran Lipovac, Minister of Administration and Local Self-Government, Republika Srpska, 21 Jan. 2010.
[6] International Crisis Group, Bosnia: State Institutions under Attack, Crisis Group Europe Briefing N°62, 6 May 2011, p. 7.
[7] Izetbegovic: SDA must “win well” in elections, Oslobođenje, 27 Aug. 2014.
[8] International Crisis Group, Bosnia’s Future, 10 July 2014, p. 27.
