External militant democracy: The case of Bosnia & Herzegovina

Imagine a politician winning a democratic election. He/She enters office with a mandate from thousands of voters, only to discover that an unelected official can remove him from office, invalidate laws adopted by parliament, and effectively reshape the constitutional framework within which he operates. In most constitutional democracies, such a scenario would appear inconceivable. In Bosnia & Herzegovina (BiH, Bosnia), however, it has been part of constitutional reality for almost three decades.

At the centre of this constitutional anomaly stands the Office of the High Representative (OHR). Among the many institutional peculiarities of BiH’s post-war constitutional order, none is more striking than the extraordinary powers that the OHR acquired through the 1997 Bonn Conclusions. ¹ While these powers are often interpreted through the lenses of international administration, state-building, or constitutional interventionism, they can also be understood from a different analytical perspective: as a mechanism of self-defence.

This blog post argues that the powers of the OHR functionally correspond to the logic of militant democracy. However, they do not fit within the classical model developed in constitutional theory. Instead, they represent a distinct and largely undertheorized phenomenon: external militant democracy. Unlike traditional forms of constitutional self-defence, in which democratic institutions safeguard themselves through constitutionally prescribed procedures, the Bosnian model relocates this function to an international actor operating outside the domestic democratic process. 

Militant Democracy and Constitutional Self-Defence

The concept of militant democracy was first formulated by Karl Loewenstein in 1937 as a response to the collapse of inter-war European democracies and the rise of fascism across Europe. ² Observing how anti-democratic movements systematically exploited democratic freedoms in order to abolish democracy itself, Loewenstein argued that democracies must develop instruments of constitutional self-defence.

At the core of this argument lies a deceptively simple proposition: a constitutional democracy cannot be required to extend unlimited tolerance to political actors whose declared objective is the abolition of democracy itself. In order to preserve its own normative foundations, democracy must be capable of imposing certain restrictions on those who seek to destroy it. As Loewenstein famously put it, “constitutional scruples can no longer restrain from restrictions on democratic fundamentals, for the sake of ultimately preserving these very fundamentals.” ³  In other words, democratic systems cannot allow themselves to be paralysed by an excessive commitment to procedural neutrality when faced with existential threats.

Post-war constitutionalism largely internalised this logic. The most prominent example is the German Basic Law, whose Article 21(2) permits the Federal Constitutional Court to declare political parties unconstitutional if they seek to undermine or abolish the free democratic basic order. Comparable, albeit less far-reaching, mechanisms can be found across Europe, including party bans, restrictions on extremist associations, and constitutional emergency powers. ⁴

Despite these variations, classical accounts of militant democracy share two essential structural features. First, mechanisms of constitutional self-defence are embedded within the constitutional order itself. Second, the activation and application of such mechanisms remain subject to domestic legal procedures, judicial control, and forms of democratic accountability. ⁵ In other words, the defender of democracy remains institutionally internal to the constitutional system it seeks to protect.

Bosnia & Herzegovina, however, departs radically from this model.

The Dayton Constitution and the Rise of the Bonn Powers

The Constitution of BiH, contained in Annex 4 of the Dayton Peace Agreement, does not establish a constitutional guardian empowered to suspend democratic actors or impose legislation. ⁶ Nor does it create any institution capable of removing elected officials from office. The High Representative appears only in Annex 10, which regulates the civilian implementation of the peace settlement. ⁷ The language of Annex 10 is notably modest. The High Representative is expected to facilitate, coordinate, monitor, report, and assist implementation efforts. ⁸ Nothing in the text explicitly authorises the imposition of legislation, the amendment of constitutional arrangements, or the dismissal of democratically elected officials.

The transformation occurred in December 1997, when the Peace Implementation Council (PIC) met in Bonn and endorsed what later became known as the Bonn Powers. ⁹ From that moment onward, the High Representative acquired authority to adopt binding decisions whenever domestic institutions were deemed unable or unwilling to act.

The practical consequences were extraordinary. Over the following decades, High Representatives imposed hundreds of legal measures, enacted constitutional amendments, and removed numerous elected and appointed officials from office. ¹⁰

Whether these powers possess a convincing legal foundation remains one of the most controversial questions in Bosnian constitutional law. A substantial body of scholarship has argued that the Bonn Powers exceed the authority originally envisaged by Annex 10. Tim Banning famously described them as a “powerful, but delusive legal fiction”, ¹¹ while Miroslav Baros has argued that they constitute an ultra vires expansion of the original Dayton mandate. ¹²

Yet for present purposes, the more interesting question is not whether the Bonn Powers are legal, but what constitutional function they perform.

The High Representative as a Constitutional Guardian?

Functionally speaking, the Bonn Powers of the High Representative in BiH bear a striking resemblance to the classic instruments of militant democracy. Like constitutional courts that ban anti-system parties, the High Representative intervenes when political actors threaten the constitutional order. Like emergency mechanisms, his powers are justified as necessary for preserving institutional stability. And finally, like all other forms of constitutional self-defense, they prevent democratic procedures from being used to dismantle the constitution itself. ¹³

Recent developments in BiH show that Loewenstein’s dilemma – how democracy can defend itself without destroying itself – remains highly relevant. Disputes over state institutions, non-implementation of Constitutional Court decisions, and secessionist rhetoric constantly raise the same question: can domestic institutions alone preserve the Dayton framework? As Harun Išerić has recently observed, the core problem is that constitutional court rulings have repeatedly been ignored by political actors, and despite the fact that non-enforcement has been criminalized since 2003, no one has ever actually been prosecuted for failing to implement a decision of the Constitutional Court. ¹⁴ Under such circumstances, attention inevitably turns to the High Representative as the ultimate guarantor of constitutional stability.

The similarities with militant democracy are difficult to ignore.

The difference, however, lies not in the objective but in the actor. In Germany, militant democracy operates through domestic institutions accountable to citizens. In Bosnia, by contrast, the defender of the constitutional order is an international official who was elected by no one in the country and answers to no domestic institutions. The protective function, in other words, has been externalized – removed from the domestic democratic process.

And this difference fundamentally transforms the relationship between democracy and constitutional self-defense. Classical militant democracy asks: can democracy defend itself against its enemies? The Bosnian model, however, asks a completely different question: can someone else defend democracy in its name?

External Militant Democracy

External militant democracy captures this unique arrangement. It exists where the function of constitutional self-defence is transferred from domestic institutions to an external actor operating outside the ordinary democratic process. The objective remains identical to traditional militant democracy: preserving the constitutional order. The difference is that protective authority originates beyond the constitutional community itself.

The Bosnian case exposes a blind spot in classical theories. Loewenstein assumed the existence of a constitutional community capable of defending itself. The post-Dayton state challenges precisely that assumption. What happens when constitutional self-defence cannot be exercised internally because political institutions themselves form part of the crisis?

The answer offered by Dayton was unprecedented: constitutional self-defence without a constitutional defender, democracy protected by an actor standing outside democracy itself.

The rationale is understandable. The Dayton order emerged from a devastating conflict marked by ethnic cleansing, genocide, and profound distrust. International supervision was viewed as a temporary guarantee against renewed instability. Under such circumstances, external intervention appeared less as a violation of constitutionalism than as its prerequisite.

Yet what may be justified as a temporary stabilisation mechanism becomes more problematic when it persists for decades. Today, almost three decades after Dayton, the High Representative remains capable of intervening in core political processes. The institution designed as a guardian of the peace settlement has become a permanent feature of the constitutional landscape.

The Democratic Cost of Constitutional Protection

External militant democracy generates a paradox that classical theories never anticipated. Militant democracy already involves a tension between liberty and security. Democratic systems restrict certain actors from preserving democracy itself. Critics note that such measures risk undermining the very values they seek to defend.

The Bosnian model introduces an additional layer of tension. Constitutional self-defence is exercised not merely against anti-system actors, but by an actor outside the democratic community.

This produces three normative consequences:

First, a democratic deficit. Citizens elect representatives, but an unelected international authority retains the power to override or remove them.

Second, weakened constitutional ownership. Constitutional orders derive legitimacy not only from their content but also from the fact that citizens recognise them as their own. As Bonifati observes, the persistent lack of local ownership has undermined this sense of constitutional belonging. ¹⁵

Third, blurred boundaries between emergency and ordinary governance. Classical emergency powers are exceptional and temporary. The Bonn Powers have endured for nearly three decades. What was presented as an extraordinary mechanism increasingly resembles a permanent constitutional arrangement.

The result is a system caught between sovereignty and tutelage.

Conclusion

The Bonn Powers are not just an unusual international mechanism. They represent a distinct model of constitutional self-defence – external militant democracy. Functionally, they mirror classic militant democracy: protecting the constitutional order from those who seek to undermine it. But institutionally, the guardian is not a domestic court or parliament. It is an international official accountable to no one in Bosnia.

I am not here to admire the High Representative. The real dilemma is whether this arrangement can ever be truly compatible with democratic self-rule. External militant democracy preserves stability, but at a cost: a democratic deficit, weakened constitutional ownership, and the blurring of emergency powers into permanent governance.

Dayton offered a simple answer to a brutal war: an external guardian. But almost three decades later, the uncomfortable question remains – can a democracy remain democratic if its ultimate defender stands outside the political community? Or does prolonged international supervision slowly replace self-government with managed sovereignty? Bosnia offers no easy answers – only the unsettling possibility that constitutional protection, when outsourced, may eventually come at the price of democracy itself.

1.  United Nations, Conclusions of the Peace Implementation Council (Bonn Conclusions), 1997, available at: https://peacemaker.un.org/en/node/10076
2. See Karl Loewenstein, “Militant Democracy and Fundamental Rights I”, American Political Science Review 3/1937, pp. 417-432; Karl Loewenstein, “Militant Democracy and Fundamental Rights II”, American Political Science Review 3/1937, pp. 638-658.
3. Karl Loewenstein, “Militant Democracy and Fundamental Rights I”, p. 432.
4. On examples of militant democracy in France, the USA, and Turkey, see. Tanasije Marinković, ,,Koliko je militantna ‘militantna demokratija’? Primer zabrane političkih stranaka u uporednom pravu” [“How militant is ‘militant democracy’? The example of banning political parties in comparative law”], Militantna demokratija – nekada i sada (ed. Violeta Beširević), Službeni glasnik, Beograd, 2013, pp.123-184.
5. For more details see. Alexander S. Kirshner, A Theory of Militant Democracy: The Ethics of Combatting Political Extremism, Yale University Press, New Haven & London, 2014.
6. Constitutional Court of BiH, Constitution of BiH, available at: https://www.ustavnisud.ba/en/constitution-of-bosnia-and-hercegovina
7. OHR, Annex 10, available at:  https://www.ohr.int/dejtonski-mirovni-sporazum-2/annex-10/
8. Article 1-2 of Annex 10.
9. Supra, fn. 1.
10. For more details, see Tim Banning, “The ‘Bonn Powers’ of the High Representative in Bosnia Herzegovina: Tracing a Legal Figment”, Goettingen Journal of International Law 6/2014, pp. 259-302.
11. Ibid., p. 261.
12. Milan Baros, “The High Representative for Bosnia and Herzegovina: A Requiem for Legality”, EJIL: Talk, available at: https://www.ejiltalk.org/the-high-representative-for-bosnia-and-herzegovina-a-requiem-for-legality/
13. See Bernhard Knoll-Tudor, Marko Prelec, “Sede Vacante in Sarajevo? Bosnia and Herzegovina after 30 Years under International Supervision”, European Journal of International Law, online first/2026, available at:  https://academic.oup.com/ejil/advance-article-abstract/doi/10.1093/ejil/chag008/8701563?redirectedFrom=fulltext
14. See Harun Išerić, “When Court Decisions Simply Aren’t Enough: What Comes Next for Bosnia and Herzegovina’s Constitutional Crisis?“, Law & Governance. South East Europe, available at: https://lgsee.blog/when-court-decisions-simply-arent-enough-what-comes-next-for-bosnia-and-herzegovinas-constitutional-crisis/
15. See Lidia Bonifati, “Constitutional Design and the Seeds of Degradation in Divided Societies: The Case of Bosnia-Herzegovina”, European Constitutional Law Review 2/2023, p. 13.