What if Dodik moves from words to action?

The President of Republika Srpska has said that the entity could hold a “referendum on its status and the way forward” by the new year.

Milorad Dodik said, among other things, that he “did not want conflict” but that the RS would consider strengthening the entity’s border, and assessed that the role of the North Atlantic Treaty Organisation (NATO) was to ensure peace and that foreign troops operating within the framework of the European Union’s military mission (EUFOR Althea) would “end up crossing the inter-entity demarcation line in the event of a politically heated situation”.

“We will fight in our own, political way until the law on the Constitutional Court of BiH is adopted, which would return power to this institution”, Milorad Dodik said at a press conference in Kozara, a mountain in north-western Bosnia and Herzegovina. Herzegovina on Sunday, 2 July, commemorating the partisan struggle of the Second World War.

Among other things, he said that “soon” decisions will be taken to ban the operation of SIPA (State Investigation and Protection Agency), the courts and the BiH prosecutor’s office on the territory of the RS “because they have no constitutional basis” and that “protectorate and colonialism will not be tolerated”.

Can Dodik call a referendum on the independence of the RS?

The BiH Constitution, which is part of the Dayton Peace Agreement that stopped the war in BiH in December 1995, does not contain a provision explicitly allowing or prohibiting a referendum, Davor Trlin, who holds a PhD in constitutional law and political institutions, explained to Radio Free Europe.

A country’s parliament can pass a law on referendums, but Bosnia and Herzegovina still does not have one. Countries that have such a law apply it to their entire territory and all their citizens vote in such a referendum.

The middle levels of government in BiH have adopted such laws.

In the Federation of Bosnia and Herzegovina, this is regulated by the Law on Principles of Local Self-Government. A referendum can only be called on issues within the competence of local self-government – municipalities and cities, such as impeachment of (city) mayors. It is called by local assemblies.

A referendum cannot be called at the level of the Federation of Bosnia and Herzegovina or in one of its ten cantons.

The Republika Srpska has included the referendum in the Entity Constitution and the Law on Referendum and Citizens’ Initiative. In addition to municipalities and cities on local issues, a referendum can also be organised at entity level “on issues within the competence of the National Assembly of the Republika Srpska”.

The RS cannot call a referendum on any national issue under either the Entity or the State Constitution. The referendum question must be in accordance with the Constitution of Bosnia and Herzegovina.

For example, at the end of 2016, the RS declared and held a referendum on 9 January as the RS Day. The results of the referendum were annulled by the Constitutional Court of Bosnia and Herzegovina as unconstitutional.

It also annulled the decision to call the referendum and the law on public holidays insofar as it refers to 9 January as the RS public holiday.

The Brčko District of BiH, as the third administrative unit, can only call a referendum with the consent of the International Supervisor, i.e. the Deputy High Representative in BiH (OHR).

The constitutions of Republika Srpska, the Federation of Bosnia and Herzegovina and its ten cantons must be in line with the Constitution of Bosnia and Herzegovina. Similarly, laws at lower levels cannot contradict the national Constitution and laws.

Parallels between the Republika Srpska and Kosovo

Davor Trlin, Doctor of Law, referred to the parallels between Republika Srpska, Kosovo and Catalonia drawn by the President of Republika Srpska, Milorad Dodik.

“When it comes to the question of the right of people to self-determination, you have the so-called defensive and offensive character of this right. The Serbian nation, by signing Dayton and forming the RS, has achieved the so-called defensive character. It would be offensive if the Serbian people were to suffer severe discrimination, violence and brutality, which is not happening. Only in this case could the RS call for a referendum on independence,” Trlin explained to Radio Free Europe.

That is why, in his view, the 2017 independence referendum in Catalonia was not only illegal, but also illegitimate, because it was not preceded by a decades-long history of discrimination.

“In the case of Kosovo, it was about achieving so-called offensive law, because the Albanian people were subjected to a lot of discrimination from the late 1980s to the late 1990s, culminating in 1999,” Trlin said, noting that even the ICJ in the Kosovo case said that this was not contrary to international law.

The final assessment of constitutionality is made by the Constitutional Court of BiH and the Office of the High Representative, as demonstrated for example by the adoption last year of the Law on the Republika Srpska Medicines Agency.

Can there be a “peaceful separation” of the RS and the Federation?

An attempt to secede from the RS would be a direct violation of the Dayton Peace Agreement and the BiH Constitution, which defines the status of the two entities.

The “peaceful separation” mentioned several times by Dodik would require amending the BiH Constitution and providing for the possibility of a referendum on this issue, which was voted for by two thirds of the members of the House of Representatives.

In addition to the agreement of the representatives of the Bosniaks and Croats, the international community, especially the members of the Security Council – the US, Russia, China, the UK and France – without whose support there is no admission to the United Nations, should also agree.

In February 2020, the National Assembly of the RS called for a “definition of the ‘border’ line” between the RS and the FBiH.

In the Dayton Peace Agreement, there is no term “entity border”, but rather an “inter-entity demarcation line”, which can be adjusted by agreement between the two entities, but has never been clearly defined on the ground, and intersects settlements, cemeteries, roads, housing and so on.

What if someone tries to secede, and are there possible conflicts?

The Constitution of Bosnia and Herzegovina explicitly states that the State of Bosnia and Herzegovina and its Entities “shall not impede the full freedom of movement of persons, goods, services and capital throughout Bosnia and Herzegovina”.

It is underlined that the Federation of BiH and the Republika Srpska “will not establish control on the inter-entity lines” and therefore cannot, for example, deploy police on the inter-entity lines, as requested by the Federation of BiH in early January this year.

In addition to the unconstitutionality, in the scenario of an entity police withdrawal or a conflict between police officers of the police agencies, an international military mission, today’s EUFOR, would have to respond, which may also require NATO involvement.

Western military forces can use force “if they judge that the secure and stable environment is seriously threatened and that there is a risk of collapse of existing security structures”, as stipulated in the Dayton Peace Agreement.

The Court and the Prosecutor’s Office of BiH have jurisdiction over the entire territory of BiH, but specifically over issues such as the “attempt to change the constitutional order”, which is governed by the State Penal Code, which was amended by the High Representative on Saturday , 1 July.

Bosnia and Herzegovina has 16 police agencies, three of which are state-owned, all of which are obliged to cooperate with the public prosecutor’s office.

The State Investigation and Protection Agency (SIPA) deals with the most serious forms of crime regulated by the State Penal Code and, together with the entity’s police, should respond to unconstitutional moves at the request of the State Prosecutor’s Office.

Any decision on the use of BiH’s armed forces, from, for example, deploying helicopters to fight fires to sending troops on international military missions, requires a vote in favour by all three members of the BiH Presidency.

At the moment they are Denis Bećirović as a Bosniak and Željko Komšić as a Croat from FBiH and Željka Cvijanović as a Serbian from RS.

Why is there talk of “deploying NATO forces” in Brcko?

Unlike the Federation of BiH, in Brcko the continuity of the Republika Srpska has been broken, thus territorially “split” into a north-western and an eastern part.

Representatives of mainly Bosniak political parties or, for example, former Croatian President Stjepan Mesic, have called for the deployment of (more) NATO troops in Brcko to “cut the corridor” from Banja Luka to Serbia, i.e. the rest of the RS, in the event of a referendum in Republika Srpska on secession from Bosnia and Herzegovina.

Brčko District of BiH, a town in the north-east and on the Sava River, is an “administrative unit under the sovereignty of BiH”. It is defined as a landed property (joint property) of the Federation of Bosnia and Herzegovina and the RS. It has a government consisting of a mayor and departments acting as prime minister and ministries, a legislature (assembly) elected by local elections and its own judiciary.

In the general elections, which elect the state, entity and cantonal bodies, Brcko is not a separate constituency and citizens decide (entity citizenship) whether they wish to vote as residents of the FBiH or the RS.

Brčko also has an International Overseer, who is the Deputy High Representative. While the High Representative is appointed by the members of the Peace Implementation Council and, by unwritten rule since the establishment of the OHR, is a European, the Deputy High Representative is appointed by the High Representative and is an American.

Do Schmidt’s decisions have an effect in the RS?

Christian Schmidt, the High Representative of the international community in Bosnia and Herzegovina, is in charge of implementing the civilian parts of the Dayton Peace Agreement and has the power to amend, repeal or adopt new laws and constitutions, except for the country’s constitution. .

It can suspend any elected or appointed official, from a member of the Presidency to a municipal councillor, police chief or director of a public enterprise, “who violates the obligations assumed by law and the Dayton Peace Agreement”.

All levels of government are obliged to cooperate with Dayton. Its decisions cannot be challenged in any court unless the OHR approves it.

On 1 July, Christian Schmidt repealed the laws adopted by the National Assembly of the Republika Srpska Entity concerning the non-publication of the decisions of the High Representative and the non-application of the decisions of the Constitutional Court of Bosnia and Herzegovina.

The political representatives of the RS, headed by the President of the Entity, Dodik, as well as representatives of Russia and China, consider that Schmidt is illegitimate because his appointment was approved by the Peace Implementation Council and not by the UN Security Council.

Contrary to Dodik’s statements, Schmidt’s decisions are being implemented, and Dodik indirectly said so on 2 July.

“There can be no sovereignty (of BiH) if you are a protectorate and if you are a colony. A colony is defined as a state ruled by foreigners. Do we need more proof that we are a colony, like yesterday (when Schmidt overturned the decisions of the National Assembly of the RS) and what is happening to us in the Constitutional Court?”, Dodik asked.

The President of the RS, as well as the political representatives of the Croats from the Federation of BiH, are demanding the adoption of the law on the Constitutional Court of BiH and the “expulsion” of the three foreign judges from this court. The Dayton Peace Agreement provided for the adoption of such a law, but it was not adopted, and the Bosniak political representatives have a different opinion on it.

On 2 July, Dodik reiterated that the court and the prosecutor’s office, as well as the tax system (the Indirect Taxation Administration, which collects and distributes money from customs duties and value added tax – VAT) and BiH’s security agencies and the State Investigation and Protection Agency (SIPA) are BiH.

All these institutions were established by the adoption of laws by the National Parliament, and the Constitution of BiH provides that the competences of the entities may be transferred to the State if the entities agree to do so.

The “return of competences” from the state to the entity, such as issues of the army, customs, intelligence agencies, etc., which Dodik insists on, is only possible by amending the law in the national parliament./The Geopost/