Ongoing transition: from external to the internal militant democracy in Bosnia and Herzegovina

In a recent blog post, the High Representative (HR),¹ whose authority derives from the Bonn Conference conclusions, Annex X of the Dayton Peace Accords (DPA), and relevant UN resolutions, was described as an instrument of external militant democracy in Bosnia and Herzegovina (BiH). While we do not fundamentally dispute this characterization, we argue that the external militant democracy framework in the case of BiH should be understood more broadly, extending beyond the HR and recognizing it not only as a guardian of democracy but also as an intertwined necessary external guardian of both peace and democracy.  We further contend that the HR does not act without constraints; rather, the Office of the High Representative operates within the Bosnian constitutional framework and is subject to institutional checks and balances. We also argue that HR has led a gradual transfer of responsibility of democratic self-defense to the domestic institutions. Finally, for this process to be completed and for the Office of the High Representative (OHR) to be eventually abolished, its powers should be fully transferred to domestic institutions, preferably the Constitutional Court of Bosnia and Herzegovina (CC BiH).

International Community as a Bosnian Democracy (and Peace) Guardian 

With regard to the first claim, it should be pointed out that the most influential and powerful member states of the Peace Implementation Council (PIC) Steering Board, such as the UK and the US, have sanctioned natural and legal persons for reasons related to the defence of BiH’s democracy as well as peace. In April 2022, the UK sanctioned Milorad Dodik (former President of Republika Srpska (RS), one of the two entities of BiH) and Željka Cvijanović (a member of the BiH Presidency) for being “enemies of peace” and for pushing for the de facto secession of RS, “in direct contravention of the country’s constitution.”² In 2024, the UK also sanctioned a company involved in “undermining or threatening the constitutional order of BiH.”³ 

Through the Office of Foreign Assets Control (OFAC) of the U.S. Department of the Treasury, the US has sanctioned various natural and legal persons. For example, the Serbian Democratic Party (SDS) was sanctioned for failing to comply with BiH’s international obligations, including cooperation with the ICTY.⁴  Sanctions lead to the closure of the party’s bank accounts in 2024, making it impossible for SDS to finance and participate in the 2024 local elections. The Constitutional Court of BiH eventually intervened, clarifying that sanctions, in essence, do not prohibit participation in the elections and that they are of economic nature. The Court underlined that imposed sanctions in no way prohibit SDS from taking part in elections.⁵ 

OFAC has also sanctioned a number of politicians, both from RS and from the other entity, the Federation of BiH (FBiH). Among others, OFAC sanctioned the former President of the Federation of BiH for blocking the functioning of the Federation of BiH by refusing to nominate judges to the FBiH Constitutional Court.⁶ It is interesting to note that, throughout that period, the FBiH Parliament failed to initiate impeachment proceedings before the FBiH Constitutional Court to challenge the President’s unconstitutional conduct⁷. The RS Minister of Health and Social Welfare was sanctioned for advancing the RS secessionist agenda.⁸ The US also sanctioned the entire leadership of the RS entity and a member of the BiH Presidency for their involvement in efforts to dismantle the BiH state.⁹  Finally, Milorad Dodik has been sanctioned multiple times (in 2017, 2022, and 2023) for the “degradation and undermining of institutions in BiH” and the “undermining of the Dayton Peace Agreement”;¹⁰ for attempts to dismantle the DPA and threaten the stability of BiH;¹¹ and for obstructing the DPA, as well as for posing a significant threat to the sovereignty and territorial integrity of BiH.¹² The US has also sanctioned individuals involved in undermining decisions of the Constitutional Court of BiH (CC BiH) and taking actions that were not in compliance with those decisions. According to the US, by doing so, they knowingly defied the decisions of the CC BiH and the HR and demonstrated open contempt for the DPA.¹³

By examining the reasons for the sanctions imposed by the UK and the US, one can identify a common objective: the preservation of peace and the Constitution of BiH, or, more precisely, the preservation of peace through constitutional stability and the protection of the constitutional order. These grounds deviate somewhat from the usual rationale of democratic self-defence, reflecting the specificity of the Bosnian legal order, which emerged from an international peace treaty. Such actions by the international community remain necessary, given its extensive involvement in establishing the existing constitutional framework, uncompleted transfer of powers from HR to domestic institutions, as well as the mandate conferred upon the HR and the PIC under Annex X of the DPA, which is situated within the constitutional order of BiH and functions as a constitutive, externally derived element of that order.

Transition to the internal militant democracy in BiH: what has been done so far? 

Recent years (2023–2025) have brought to BiH the most pressing challenges for its constitutional stability, judicial independence, and institutional framework set up by the DPA. In response to that, the HR, as well as the CC BiH, has undertaken various actions and decisions to prevent further undermining of the authority of state institutions and democratic backsliding. Let us point out the most pressing ones: in 2023, Republika Srpska suspended the enforcement and any legal effect whatsoever of CC BiH decisions (by adopting a Law on Non-Application of Decisions of the Constitutional Court of Bosnia and Herzegovina), as well as tried to suspend the legal force of HR acts on the territory of RS by deciding not to publish them in the Official Gazette (by amending the Law on Publication of Laws and Other Regulations of RS). In response to such unprecedented undermining of the authority of the CC BiH and the HR, the HR decided to prevent the law from entering into force, ordering authorities and official persons to cease any acts and activities purported to enable the entry into force and application of both laws.¹⁴

In order to enforce its decision, the HR introduced a new crime within the BiH Criminal Code, named Failure to Implement Decisions of the High Representative, as well as reforming the wording of already existing crimes Failure to Implement Decisions of the Constitutional Court of BiH and Attack on the Constitutional Order, given existing challenges in enforcing these criminal provisions.¹⁵

By deciding not to exercise its powers to remove elected politicians (such as Milorad Dodik) and prohibit the exercise of any publicly funded position for defying his decisions, undermining the DPA and the HR, the HR fully transferred ownership over the process to domestic judicial institutions. Eventually, Dodik was prosecuted at the Court of BiH for signing the proclamation of the Law on Non-Application of Decisions of the CC BiH and was eventually removed from the position of RS President, with a six-year ban on holding public office. This follows the trend in HR policy of promoting local ownership over the process, with the latest removal occurring in June 2009,¹⁶ while the last removal of a politician occurred in October 2005.¹⁷

The HR has demonstrated restraint in exercising its powers of removal for more than 20 years, and by amending the Criminal Code with regard to Failure to Implement Decisions of the Constitutional Court of BiH and Attack on the Constitutional Order, and by determining the following legal consequences incident to conviction: cessation of official duty and termination of employment; a ban on performing official duties in the legislative, executive, judicial, administrative, or any body financed by public funds in whole or in part; and a ban on acquiring official duties in such bodies. In this way, the HR has made a partial transfer of responsibility to national judicial institutions.

The CC BiH found that removal made by the HR was in violation of the right to an effective remedy, but the HR acted in a robust manner, preventing the implementation of such decision. However, this does not necessarily mean that such a ban was permanent. At the same time when the HR started issuing bans, it also began considering whether they were necessary. Its periodic review resulted in the gradual lifting of these bans over the years. It has also softened the impact of removal and bans by not expanding them to public civil services and by limiting them to positions in the executive and legislative branches of government, advisory positions to these offices, positions in the security sector, and managerial civil service positions.

While limiting the bans, the HR bore in mind the following: (1) unstinting cooperation with the ICTY is indispensable to the country’s further rehabilitation, reconciliation, and integration; (2) Bosnia and Herzegovina’s progress in this connection has not been as notable as in other areas; and (3) the reintroduction of such individuals into public life still poses the threat of reversing the limited gains recently made.¹⁸

In extreme cases of non-cooperation with the ICTY, including aiding and abetting a person wanted by the ICTY, the HR has blocked all bank accounts held by these individuals,¹⁹ as well as the seizure of their travel documents.²⁰

On the other hand, besides the removal of elected politicians who undermine the DPA, the HR has also interfered with the financing of political parties engaged in unconstitutional behaviour or acting irresponsibly in relation to their duties. The measures undertaken by the HR did not include party bans, but rather focused on limiting private and public funding of such parties. When political parties participating in the Herzegovina-Neretva Canton failed to appoint the Assembly leadership and the Cantonal Government nine months after the General Elections in October 2006, the HR decided to reduce or fully suspend political party funding from the budgets of BiH, the Federation of BiH, and the Herzegovina-Neretva Canton.²¹ In another case, involving ruling political parties in RS pursuing a secessionist agenda, the HR suspended all budgetary funding for SNSD and Ujedinjena Srpska, transferring the funds to a special account opened at the Central Bank.²² The ban is to be lifted following a positive assessment by the HR of these political parties’ compliance with the DPA. In the absence of a state-level law on political parties, it was necessary for the HR to intervene, at least in the second case, to eliminate formal budget funding for political parties that were at the forefront of constitutional undermining.

In 2025, the HR also showed restraint in acting as a domestic constitutional court. Following his 2023 decision to amend the Criminal Code of BiH, making it easier for the BiH Prosecutor’s Office to prosecute attacks on the constitutional order as well as non-compliance with CC BiH decisions, in February and March 2026, when the country was faced with its most challenging constitutional crisis, the HR refused to intervene and annul prima facie unconstitutional laws adopted by the RS National Assembly. The political supervisory body of the HR, as well as the HR himself, underlined the importance of “using all domestic legal remedies to uphold the constitutional order of Bosnia and Herzegovina,”²³ while Schmidt added that he has “unwavering confidence in the ability of BiH’s state institutions to act.”²⁴ At that time, the President of the CC BiH referred to these statements when noting that the CC BiH is one of the institutions on which the HR relied to intervene.²⁵

In summary, the HR in the last 20 years has completely neutralized its power to dismiss and ban politicians from holding public office. Furthermore HR progressively, and especially through its recent decisions, has transferred much of its means used to defend Bosnian democracy to state judicial and prosecutorial bodies, pressuring them to intervene when necessary, effectively substituting the HR in this regard. In that sense, it has strengthened the tools and means available to domestic institutions to combat any attempts to undermine state institutions and the DPA.

Transition to the internal militant democracy in BiH: what is left to be done? 

A transfer to local ownership of the process, advocated already by Christian Schwarz-Schilling as early as 2007,²⁶ to be completed, has to be accompanied by a necessary expansion of the CC BiH competences. Here we refer to the further extension of CC BiH competence, to include  ban of political parties, limiting public funding as well as to conduct impeachment procedures of BiH politicians which undermine the BiH Constitution values. Compelling reasons for such empowerment of the CC BiH are: the persistent lack of loyalty to the BiH Constitution and state institutions by political parties and elected officials, including repeated organised attempts at the de facto and de jure secession of RS, as well as sustained challenges to the authority of state-level institutions and continuous contestation of the State Constitutional Court, which remains the only state institution not subject to ethnic or entity veto mechanisms. Against this background, strengthening the competences of the CC BiH would constitute a form of constitutional self-defence consistent with militant democracy, ensuring that democratic procedures cannot be instrumentalised to dismantle the constitutional order itself and undermine peace in BiH.

Obviously, it would not be possible to transfer the power of imposing laws on a temporary basis, although the CC BiH has developed case-law and rules of procedure empowering it to impose temporary solutions in cases of legal gaps resulting from the annulment of legal acts and the failure of assemblies to harmonize existing laws with constitutional provisions, especially when such gaps lead to human rights violations, as in the case of the non-holding of elections in the city of Mostar.²⁷

In that sense, the transition to local ownership over the process and decision-making must go beyond political institutions and also encompass legal institutions, given that HR powers in nature overlap between political and legal domains. Given that the Parliamentary Assembly of BiH has limited decision-making capacity due to various veto mechanisms in both houses, such a transfer would only be reasonable to the Constitutional Court of BiH. The Court is not constrained by entity or ethnic quotas with regard to the quorum for holding sessions and delivering decisions. Although since 2022 the Court has functioned without its full composition, with at least one judge missing and, more recently, with two judges, it has proven to be resilient against undermining and political pressure, delivering timely decisions on interim measures to prevent laws undermining the rule of law, federalism, and state integrity, as well as decisions on the merits. Although the issue of enforcement of the Court’s decisions remains highly relevant, experience from recent constitutional crises has shown that, although there is verbal opposition and denial of decisions, these are ultimately enforced. However, criminal liability for failure to implement decisions must be enforced more consistently and robustly. It is therefore concerning that this is not yet the case. Following discussions with the Prosecutor’s Office, the Court has begun formulating its decisions more precisely by clearly identifying the authorities responsible for enforcement and specifying the actions required to ensure implementation.²⁸ Separately, the High Representative’s amendments to the Criminal Code of Bosnia and Herzegovina have made it easier to prosecute failures to enforce Court’s decisions. Taken together, these developments have removed important practical and legal obstacles to the effective enforcement of criminal liability. In addition, the Court should explore new mechanisms for ensuring enforcement, including financial penalties for non-compliance.

With regard to the means of such a transfer, the Court has underlined in its case-law that no additional competences can be prescribed by legislation adopted by the Parliamentary Assembly of BiH. More precisely, with regard to the Election Law of BiH provision on the competence of the CC BiH to decide whether a member of the BiH Presidency is in capacity to hold office, the Court held that it has no competence to decide on such matters, given that such competence is not prescribed by the BiH Constitution.²⁹ In preserving its independence, the Court’s competences can only be determined by the Constitution or by constitutional amendments.³⁰ Therefore, it would be necessary for the Parliamentary Assembly to adopt constitutional amendments for such a transfer to take place. It has been a long-standing position of the HR that it cannot intervene into the text of the Constitution of BiH by imposing amendments, unlike in the case of entity constitutions. Although that has not always been strictly the case in practice, amendments would nevertheless have to be adopted by the Parliamentary Assembly.

Regarding the likelihood of such developments, one should note that this would effectively mean the end of the OHR, for which dominant Serbs and Croats parties have long advocated, but at the same time it would transfer ownership to domestic institutions in an attempt to strengthen the democratic resilience of the domestic institutional framework. Finally, when addressing the scope of powers to be transferred, one could rely on typical powers characteristic of courts as guardians of democracy, such as party banning, restrictions on budget funding, and impeachment of BiH politicians, including those holding mandates such as Presidency members, the Chair of the Council of Ministers, and entity-level executive leadership, where they undermine the values of the BiH Constitution.

Conclusion

Although the HR, together with some other member states of the PIC, has acted as an exclusive guardian of Bosnian democracy and constitutional order, as means of preserving peace, the gradual transfer from external to internal responsibility has been taking place, especially over the last three years. Such a transfer has been visible with regard to the criminal justice system and the latest example of Dodik’s prosecution (which legality was recently confirmed by ECtHR decision not to examine Dodik’s appeal as it found no reason whatsoever to do so). For the final transition to local ownership over preserving state stability and functionality, constitutional amendments would have to be adopted to expand the competences of the CC BiH, which would include those similar to the German Constitutional Court, such as political party bans and impeachment of politicians who undermine constitutional values. That would lead to the closure of international supervision, but at the same time would leave no gap in the fragile BiH institutional framework, which needs to be kept under constant supervision, as history teaches us. Such an arrangement would also enhance the democratic legitimacy of the process by ensuring that control over constitutional enforcement is exercised by domestic institutions rather than external actors.

1. See Aleksa Nikolić, “External militant democracy: The case of Bosnia & Herzegovina“, Law & Governance. South East Europe, available at: https://lgsee.blog/external-militant-democracy-the-case-of-bosnia-herzegovina/.
2. “UK announces sanctions under Bosnia and Herzegovina sanctions regime: 11 April 2022”, available at: https://www.gov.uk/government/news/uk-announces-sanctions-under-bosnia-and-herzegovina-sanctions-regime-11-april-2021
3. See: https://search-uk-sanctions-list.service.gov.uk/designations/BIH0004/Entity.
4. See document published by OFAC, available at: https://www.google.com/url?sa=t&source=web&rct=j&opi=89978449&url=https://home.treasury.gov/system/files/136/archive-documents/document12pdf.pdf&ved=2ahUKEwi77JOTtJ6VAxVbR_EDHUsRHwwQFnoECCQQAQ&usg=AOvVaw1AK7Fup2rU4TjfLsrgz2n9.
5. Decision on Admissibility and Merits in case no. AP-2540/24 (19 September 2024), Constitutional Court of BiH, available at: https://www.ustavnisud.ba/uploads/odluke/_bs/AP-2540-24-1441099.pdf.
6. “Treasury Designates Two Senior Officials in Bosnia and Herzegovina for Destabilizing Behavior”,  U.S. Department of the Treasury, available at: https://home.treasury.gov/news/press-releases/jy0808.
7. FBiH Constitution provides following: „The President or one of the Vice-Presidents of the Federation, if he has violated the oath or is otherwise unworthy of performing that office, may be removed from office by a decision of the Constitutional Court, which shall act upon the request of a two-thirds majority of votes of each house of the Federation Parliament.” (Article IV.B.3. (1)).
8. “Treasury Designates Two Senior Officials in Bosnia and Herzegovina for Destabilizing Behavior”, U.S. Department of the Treasury, available at: https://home.treasury.gov/news/press-releases/jy0808.
9. “U.S. Treasury Targets Four Officials in Bosnia and Herzegovina for Undermining the Dayton Peace Agreement”, U.S. Department of the Treasury, available at: https://home.treasury.gov/news/press-releases/jy1660.
10. “U.S. Treasury Sanctions Members of Milorad Dodik’s Family and Patronage Network”, U.S. Embassy in Sarajevo, available at: https://ba.usembassy.gov/u-s-treasury-sanctions-members-of-milorad-dodiks-family-and-patronage-network/.
11. “Treasury Sanctions Milorad Dodik and Associated Media Platform for Destabilizing and Corrupt Activity”, U.S. Department of the Treasury, available at: https://home.treasury.gov/news/press-releases/jy0549.
12. “Treasury Sanctions Republika Srpska Official for Actively Obstructing The Dayton Accords”, U.S. Department of the Treasury, available at: https://home.treasury.gov/news/press-releases/jl0708.
13. “Treasury Targets Republika Srpska Officials for Activity Undermining the Dayton Peace Agreement”, U.S. Department of the Treasury, available at: https://home.treasury.gov/news/press-releases/jy2175.
14. “Decision Preventing the Entry into Force of the Law on Non-application оf Decisions of the Constitutional Court of Bosnia and Herzegovina”, Office of the High Representative, available at: https://www.ohr.int/decision-preventing-the-entry-into-force-of-the-law-on-non-application-%d0%bef-decisions-of-the-constitutional-court-of-bosnia-and-herzegovina/. “Decision Preventing the Entry into Force of the Law on Amendments to the Law on Publication of Laws and Other Regulations of Republika Srpska”, Office of the High Representative, available at: https://www.ohr.int/decision-preventing-the-entry-into-force-of-the-law-on-amendments-to-the-law-on-publication-of-laws-and-other-regulations-of-republika-srpska/.
15. “Decision enacting the Law on Amendments to the Criminal Code of Bosnia and Herzegovina”, Office of the High Representative, available at: https://www.ohr.int/decision-enacting-the-law-on-amendments-to-the-criminal-code-of-bosnia-and-herzegovina/
16. “Decision To remove mr. Radislav Jovičić from his current position in the State Investigation and Protection Agency of Bosnia and Herzegovina”, Office of the High Representative, available at: https://www.ohr.int/decision-to-remove-mr-radislav-jovii-from-his-current-position-in-the-state-investigation-and-protection-agency-of-bosnia-and-herzegovina-3/
17. “Decision removing Mr. Milovan R. Pecelj from his position as Minister of Education and Culture of Republika Srpska”, Office of the High Representative, available at: https://www.ohr.int/decision-removing-mr-milovan-r-pecelj-from-his-position-as-minister-of-education-and-culture-of-republika-srpska-2/
18. “Decision further limiting the scope of the ban from public office in the removal decisions issued by the High Representative”, Office of the High Representative, available at: https://www.ohr.int/decision-further-limiting-the-scope-of-the-ban-from-public-office-in-the-removal-decisions-issued-by-the-high-representative-2/.
19. “Decision Reviewing the Orders Blocking all Bank Accounts of, Held By, and/or in the Name of Certain Individuals”, Office of the High Representative, available at: https://www.ohr.int/decision-reviewing-the-orders-blocking-all-bank-accounts-of-held-by-andor-in-the-name-of-certain-individuals-2/.
20. “Notice of Decision by the High Representative to Repeal the Order Seizing Travel Documents of Certain Individuals”, Office of the High Representative, available at: https://www.ohr.int/notice-of-decision-by-the-high-representative-to-repeal-the-order-seizing-travel-documents-of-certain-individuals-4/.
21. “Decision Suspending all Disbursement of Budgetary Itemisations for party funding to the HDZ BiH, the SDA, the HDZ 1990 – HZ and the SBiH from the budget of the Bosnia and Herzegovina, the budget of the Federation of Bosnia and Herzegovina and the budget of the Herzegovina-Neretva Canton and Reducing Party Funding to the HDZ BiH, the SDA, the HDZ 1990 – HZ and the SBiH from the Budget of the Herzegovina-Neretva Canton”, Office of the High Representative, available at: https://www.ohr.int/decision-suspending-all-disbursement-of-budgetary-itemisations-for-party-funding-to-the-hdz-bih-the-sda-the-hdz-1990-hz-and-the-sbih/. “Decision Amending the Decision on Suspending all Disbursements of Budgetary Itemisations for party funding to the HDZ BiH, the SDA, the HDZ 1990 – HZ and the SBiH from the budget of the Bosnia and Herzegovina, the budget of the Federation of Bosnia and Herzegovina and the budget of the Herzegovina-Neretva Canton and Reducing Party Funding to the HDZ BiH, the SDA, the HDZ 1990 – HZ and the SBiH from the Budget of the Herzegovina-Neretva Canton of 29 May 2007”, Office of the High Representative, available at: https://www.ohr.int/decision-amending-the-decision-on-suspending-all-disbursements-of-budgetary-itemisations-for-party-funding-to-the-hdz-bih-the-sda-the-hdz-1990-hz-and-the-sbih/.
22. “Decision Suspending All Disbursements of Budgetary Funds for Party Funding to Savez Nezavisnih Socijaldemokrata (SNSD) and Ujedinjena Srpska”, Office of the High Representative, available at: https://www.ohr.int/decision-suspending-all-disbursements-of-budgetary-funds-for-party-funding-to-savez-nezavisnih-socijaldemokrata-snsd-and-ujedinjena-srpska/.
23. “Statement by the High Representative and Chair of the PIC Steering Board”, Office of the High Representative, available at: https://www.ohr.int/statement-by-the-high-representative-and-chair-of-the-pic-steering-board/. “Schmidt za Euronews: Imam nepokolebljivo povjerenje u sposobnost državnih institucija BiH”, available at: https://euronews.ba/bosna-i-hercegovina/politika/15646/schmidt-za-euronews-imam-nepokolebljivo-povjerenje-u-sposobnost-drzavnih-institucija-bih.
24. “Schmidt za Euronews: Imam nepokolebljivo povjerenje u sposobnost državnih institucija BiH”, available at: https://euronews.ba/bosna-i-hercegovina/politika/15646/schmidt-za-euronews-imam-nepokolebljivo-povjerenje-u-sposobnost-drzavnih-institucija-bih.
25. “Seada Palavrić, predsjednica Ustavnog suda BiH, gošća BHT1 Uživo”, BHRT – Radiotelevizija Bosne i Hercegovine, available at: https://www.youtube.com/watch?v=Ld1fK4RSrdM (26:10).
26. “Article by Christian Schwarz-Schilling, High Representative for BiH “Bosnia’s Road to Ownership”, Office of the High Representative, available at: https://www.ohr.int/article-by-christian-schwarz-schilling-high-representative-for-bih-bosnias-road-to-ownership/
27. See: “Baralija v. Bosnia and Herzegovina”, ECtHR (app no 30100/18, 29 October 2019).
28. See conclusions and recommendation of the conference “Enforcement of Decisions of the Constitutional Court of Bosnia and Herzegovina”, held in June 2023, available at: https://www.ustavnisud.ba/en/Constitutional-Court-of-BiH-held-the-Conference-Enforcement-of-Decisions-of-the-Constitutional-Court-of-Bosnia-and-Herzegovina.
29. Decision on Admissibility in case no. U-11/21 (2 December 2021), Constitutional Court of BiH, available at: https://www.ustavnisud.ba/uploads/odluke/_en/U-11-21-1303609.pdf.
30. See Decision on Admissibility in case no. U-11/21 (2 December 2021) with references to the other case-law of the CC BiH.