When Court Decisions Simply Aren’t Enough: What Comes Next for Bosnia and Herzegovina’s Constitutional Crisis?

Following unprecedented legal moves toward the de facto secession of one of Bosnia and Herzegovina’s (BiH) subnational units—Republika Srpska (RS)—the Constitutional Court of BiH (CC BiH / the Court) has annulled¹ laws and policies it deemed to undermine state sovereignty and the supremacy of national judicial and security institutions within RS territory. However, the legal battle to preserve BiH’s statehood and cooperative federalism is far from over.

This blog explores further legal steps needed to consolidate federalism, strengthen state-level institutions, and respond effectively to the disloyal conduct of one of its constituent federal units. In this context, two key actors are considered: the Constitutional Court of BiH, which is solely responsible for resolving federal disputes (Article VI/3 of the Constitution)²and issuing final, binding decisions; and the Office of the High Representative (OHR), established under Annex 10 of the Dayton Peace Accords, with the mandate³ to oversee the Accords’ implementation—including enacting laws, constitutional amendments, and removing elected officials when necessary. With regards to these two actors, three issues are discussed: enforcement of the CC BiH decision and upholding the criminal liability for a failure to do so; temporary legal regulation by the OHR of those persisting issues: state property ownership and disposition of state property and political party bans.

Ensuring CC BiH Decisions Are Enforced

The issue of enforcing CC BiH rulings came to the forefront when RS began deploying various legal maneuvers to avoid complying with the Court’s opinions—particularly in cases involving state property and the so-called “Day of RS.” The Court has consistently stated that its legal assessments and opinions are as binding and final as the dispositive parts of each decision.⁴ Nevertheless, it has had to rule seven times on state property and three times on the Day of RS, and always making the same conclusion on the unconstitutionality of RS actions. 

At the heart of recent constitutional disputes is the division of competencies between the federal government and its entities, specifically the unilateral reappropriation of competencies that were previously transferred to the federal level. This issue was addressed in Case No. U-2/22 (2022)⁵, where the Court clarified that while retransfer of competencies to the entities is not unconstitutional in itself, any unilateral move in that direction is. Such action can only be undertaken by the federal parliament—not by one or even both entity parliaments.

Another pressing issue is RS’s attempt to legislate on matters already regulated by state-level institutions, whether by primary or secondary legislation. A recent example is RS’s adoption of its own Election Law, which grants authority to the RS Election Commission—authority that, under the BiH Election Law, belongs to the national-level Election Commission. For the second time, CC BiH found this law unconstitutional (Case No. U-12/24⁶; for the earlier ruling, see Case No. U-4/12⁷), as it attempted to usurp federal competencies and establish a parallel electoral framework.

Despite the Court’s rulings, the RS National Assembly issued a public call for appointments to the RS Election Commission based on the unconstitutional law. The Court subsequently annulled⁸ the call and explicitly prohibited all legislative, executive, and judicial bodies in the RS—including officials in BiH state institutions—from acting on the repealed law. The aim, the Court emphasized, was to safeguard the rule of law, legal certainty, and consistent application of BiH’s constitutional order.

In another example, the Court imposed interim measures banning the implementation of the RS Law on the High Judicial and Prosecutorial Council.⁹ In defiance, the RS Ministry of Justice adopted a Rulebook to appoint the Council’s initial composition—prompting a ruling by the Court for non-compliance.¹⁰

The federal government has sought to uphold the Court’s authority since 2003 by criminalizing the non-execution of CC BiH decisions, carrying penalties of up to five years’ imprisonment. Yet as of July 2025, no private or legal person has been prosecuted. In response, the Court has convened a roundtable to address prosecutorial hesitation and has begun specifying, in its rulings, both the responsible individuals and the enforcement mechanisms.¹¹ Still, this has not led to successful prosecutions—not even in the already mentioned case of the RS Ministry of Justice.

To improve enforcement, the BiH Prosecutor’s Office must begin holding individuals accountable. This task may now be easier given the Court’s new practice of clearly designating responsibility for the enforcement of its decision. Meanwhile, the Court should consider amending its procedural rules—in line with the Venice Commission’s opinion¹² on the legal weight of those rules—to enable financial penalties against non-compliant authorities. Finally, international support remains crucial. In the past, the OHR has resorted to removals and bans from public service for those obstructing Court decisions—a practice that may need to be revived.

OHR Reclaiming Its Mandate: Political Parties and State Property

The OHR has historically used its powers to enact legislation, amend the constitution, and remove public officials in fulfillment of its mandate.¹³ Two key issues have recently gained prominence: state property regulation and the prohibition of political parties that threaten the constitutional order.

The issue of state property has remained unresolved since 1995. In multiple decisions (most recently Case No. U-6/24¹⁴), the CC BiH has ruled that this matter must be legislated by the Parliamentary Assembly of BiH (PA BiH), not by entity parliaments. Nevertheless, the National Assembly of Republika Srpska (NA RS) has continued to unconstitutionally pass legislation on this issue. The RS leadership has even used the state property question as a bargaining chip in dealings with Hungary¹⁵ and the U.S.¹⁶ to gain support for their secessionist goals.

Given the repeated failure of the PA BiH to pass a law and the RS leadership’s manipulation of the issue, the OHR has a duty to intervene by temporarily imposing a law on state property until the PA BiH decides to fulfill its legislative duty and regulate this issue differently. The OHR has previously imposed a Law on the Temporary Prohibition of Disposal of State Property of BiH, completed a property inventory, and recently formed a working group to draft a new law.

OHR, invoking its prerogative to enact legislation, has pointed to numerous failed attempts of the PA BiH to adopt a certain legislation (usually due to the de facto entity veto in the House of Representatives, for example, see the decision on imposing the law criminalizing genocide denial¹⁷); high threats to the financial stability and continuous operation of the state institutions (see for example decision on preventing financial consequences for the state for financial obligations gained by the entities¹⁸); and finally the enforcement of the CC BiH decisions (see for example decision imposing amendments to the FBiH Constitution justifying it by the implementation of the Ljubić decision of the CC BiH¹⁹). All three conditions have been met in the case of the state property, given that 13 years have passed since the PA BiH was initially ordered by the CC BiH to adopt a proper legislation in this regard and that legislative attempt have failed as well as one constitutional amendment in 2022.²⁰

A second issue that seeks the OHR legislative reaction is the ban of the political parties that seek to undermine the constitutional order. BiH currently lacks a national law regulating political parties or providing mechanisms for banning them. In reaction to the persistent unconstitutional action taken by the RS political majority gathered around two RS-based political parties (SNSD and Ujedinjena Srpska) the OHR has imposed restrictions on budget funding for these two political parties.²¹ At the same time, Transparency International BiH has documented various non-budgetary financing sources, meaning that these measures are unlikely to significantly impact the targeted parties.²²

A more effective response would be a Law on Political Parties of BiH, which would include procedures for banning parties that incite non-implementation of the CC BiH decisions, unconstitutional or violent political change of the state constitutional regime. ECtHR has determined that banning political parties is not per se contrary to Article 11 of the ECHR and has to meet the criteria’s of legality, legitimacy and proportionality and used as a last resort.²³ Comparative study by the EU Parliament shows that all member states provide for the banning of political parties, under various reasons, including defense of sovereignty and territorial integrity.²⁴ CoE Parliamentary Assembly supports the banning once a party threatens the democratic constitutional order of the court.²⁵

Holding Individuals Accountable

Finally, criminal enforcement remains essential both for deterring future violations and upholding justice. Although the BiH Prosecutor’s Office initiated a criminal investigation into a legal Coup d’état by RS authorities in March 2025, there are no news on the progress of the investigation. There were reports of the chief prosecutor dissolving²⁶ a prosecutorial team of nine prosecutors that was building charges against the RS leadership, derogating public trust in its work. In any case, the leading faces of the legal Coup d’état must be brought before the face of justice, while in cases of other persons involved – like regular police officials and civil servants – a view of different approach should be considered, including like adoption of the law on amnesty for crimes committed against the BiH constitutional order in 2025. 

Finally, the BiH Law on Citizenship allows for the revocation of citizenship when an individual has been convicted, by final judgment either in BiH or abroad, for taking actions that undermine the constitutional order, provided that such actions seriously harm the vital interests of BiH. Such decisions are under the authority of the BiH Ministry of Civil Affairs. Given the final criminal conviction of Dodik (who also holds a Republika of Serbia citizenship) and well as its public statements and leadership of the SNSD, should have provoked a Ministry’s reaction accordingly.

Conclusion

Bosnia and Herzegovina is facing one of the most serious threats to the survival of its federal system. Whether this crisis will become a turning point for strengthening state-level governance and rule of law depends on the resolve of both domestic institutions and the international community to fulfil their mandates—and to hold accountable the politicians and parties actively working to undermine the constitutional order.

 

1. Constitutional Court of BiH, 158th Plenary Session – the course of the session so far, 29 May 2025. Available at: https://www.ustavnisud.ba/en/158th-plenary-session-the-course-of-the-session-so-far?force_locale=true (Accessed 3 October 2025).
2. BiH Constitution. Available at: https://www.ohr.int/ohr-dept/legal/laws-of-bih/pdf/001%20-%20Constitutions/BH/BH%20CONSTITUTION%20.pd
3. Annex of the Dayton Peace Agreement, Article II. Available at: https://www.ohr.int/about-ohr/mandate/ (Accessed 3 October 2025).
4. Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 8/19, 6 February 2020. Available at: https://www.ustavnisud.ba/uploads/odluke/_en/U-8-19-1212620.pdf (Accessed 3 October 2025).
5. Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 2/22, 26 May 2022. Available at: https://www.ustavnisud.ba/uploads/odluke/_bs/U-2-22-1323203.pdf (Accessed 3 October 2025).
6. Constitutional Court of BiH, Decision on Admissibility and Merits in case no. U 12/24, 19 September 2024. Available at:  https://www.ustavnisud.ba/uploads/odluke/_bs/U-12-24-1442809.pdf  (Accessed 3 October 2025).
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18. Office of High Representative, Decision Enacting the Law on Amendments to the Law on Financing of the Institutions of Bosnia and Herzegovina (“Official Gazette of Bosnia and Herzegovina” nos. 61/04, 49/09, 42/12, 87/12, 32/13 and 38/22), 17 July 2025. Available at: https://www.ohr.int/decision-enacting-the-law-on-amendments-to-the-law-on-financing-of-the-institutions-of-bosnia-and-herzegovina-official-gazette-of-bosnia-and-herzegovina-nos-61-04-49-09-42-12-87/ (Accessed 3 October 2025).
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