Letter to the Prime Minister of the Republic of Srpska

Letter from the President of the Republic of Srpska Milorad Dodik to the Prime Minister of the Republic of Srpska Radovan Višković

Dear Mr. President,

I am addressing you in accordance with Article 82 of the Constitution of the Republic of Srpska (“Official Gazette of the Republic of Srpska” number: 21/92, 28/94, 8/96, 15/96, 16/96, 21/96, 21/02, 26/ 02, 30/02, 31/02, 69/02, 31/03, 98/03, 115/05, 117/05, 48/11 and 73/19) according to which “the President of the Republic of Srpska may ask from the Government to present positions on certain issues of importance for the Republic of Srpska”.

As the media announced, the Constitutional Court of BiH passed Decision No. U 5/23 of March 2, 2023, which determined a temporary measure against the application of the Law on Immovable Property used for the functioning of public authorities (“Official Gazette of the Republic of Srpska” No. 16/23). With this decision, the Constitutional Court temporarily invalidated the said Law. Prior to that, Christian Schmidt (who falsely presents himself as a High Representative even though the United Nations Security Council refused to appoint him as a High Representative at the session held on 22 July 2021, which had been previously opposed by the Republic of Srpska), allegedly suspended the aforementioned law until the issuance of the decision of the Constitutional of the Court of BiH.

That Law was passed by the National Assembly of the Republic of Srpska on December 28, 2022, and was published in the “Official Gazette of the Republic of Srpska” No. 16/23 of February 20, 2023, which entered into force on February 28, 2023. Given that the issue of property in the state property of the Republic of Srpska, i.e. the property of the local self-government unit, public companies, public institutions and other public services founded by the Republic of Srpska, i.e. the local self-government unit, is a very important issue, I would like to ask that the Government of the Republic of Srpska makes a statement on this issue, bearing in mind illegal attempts to prevent the implementation of the laws of the Republic of Srpska.

BOSNIA AND HERZEGOVINA SHALL BE A DEMOCRATIC STATE WHICH SHALL OPERATE UNDER THE RULE OF LAW AND WITH FREE AND DEMOCRATIC ELECTIONS – Article 1.2. of the Constitution of BiH

I would like to point to some of the documents that are relevant to this issue.

The Dayton Constitution of BiH

The basis of the constitutional and legal structure of Bosnia and Herzegovina is an international treaty and international law. This indicates the specificity of the creation of BiH – more by the will of the international community, than by its peoples – Bosniaks, Serbs and Croats.

The Constitution of BiH, as Annex 4 of the General Framework Agreement for Peace in BiH, clearly defined the powers that the Republic of Srpska and the Federation of BiH transferred to the BiH level by signing Annex 4 of the Dayton Agreement. I remind you that the BiH level powers are listed in detail in line with the Article 3.1. of the Constitution of BiH, namely:

1. Foreign policy.
2. Foreign trade policy.
3. Customs policy.
4. Monetary policy as provided for in Article VII.
5. Finances of institutions and for international obligations of Bosnia and Herzegovina.
6. Policy and regulations related to immigration, refugee and asylum issues.
7. Enforcement of international and inter-entity criminal law, including relations with Interpol.
8. Establishment and operation of joint and international communication capacities.
9. Regulation of inter-entity transportation.
10. Air traffic control.

The Constitution of BiH as Annex 4 of the Dayton Agreement was written by the lawyers of the American administration, and their model was the Constitution of the USA, which defines that state as a union of member states. The Constitution of the USA served as the basis for drafting the Constitution of BiH in terms of content and methodology. At the time of the creation of the American Constitution, those who created it – Alexander Hamilton and James Madison wrote the “Federalist Papers”, as a kind of supplement and guidelines for interpretation, but also for potential new amendments to the Constitution. Thus, James Madison wrote in the Federalist Papers: “The rights which the Constitution gives to the central government are limited and precisely defined, while the rights of the sovereign states are large and unlimited.” They are not given by this Constitution to the United States, nor are they denied to the states, they are left to each individual state or people”. This provision of the American Constitution was rewritten in Article 3.3.(a) of the Constitution of BiH, which reads: “All state functions and powers not expressly assigned by this Constitution to the institutions of Bosnia and Herzegovina shall belong to the entities.” Thus, the Constitution of BiH confirmed all powers of the entities that were not transferred to the level of BiH.

This was consistently implemented by amending the Constitution of the Republic of Srpska, in Amendment 56, which replaced Article 3 of the Constitution of the Republic of Srpska and which now reads: “All state functions and powers shall belong to the Republic except of those explicitly transferred to its institutions by the Constitution of Bosnia and Herzegovina.”     

Continuity

The international recognition of the “Republic of BiH” from April 1992 could only state the existence of that “state” on paper. From the declaration of independence on April 6, 1992, until December 14, 1995, the “Republic of Bosnia and Herzegovina” did not have an effective power on the territory of the pre-war Socialist Republic of Bosnia and Herzegovina, nor did it have a people, which are defined as elements of existence and sovereignty of any state under the international law. This is because on November 18, 1991, the Croat representatives formed the Croatian Community of Herzeg-Bosnia, and then on January 9, 1992, the Serb representatives passed the Decision on the Formation of the Republic of Srpska, thus creating special territorial-political units on the territory of pre-war BiH. With this, two peoples (Croats, and then Serbs) in the then still internationally unrecognized BiH, laid the foundations of their national territorial units, using the right to self-determination from the Charter of the United Nations, but also the rights from two other international documents: the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights from 1966.

 Entities and so-called Republic of BiH

The Republic of Srpska, with its institutions of legislative, executive, judicial and military power, as well as the Croatian Republic of Herzeg-Bosnia, in the period from 1992 to the end of the war in 1995, effectively exercised all power in their territories within the paper “internationally recognized borders of BiH”. In addition to de facto non-existence, the “Republic of Bosnia and Herzegovina” ceased to formally exist in March 1994. After the Washington Agreement was signed on March 1, 1994, and the Constituent Assembly of the Federation of BiH was constituted on March 18 from the deputies of the pre-war Assembly of the FR BiH who remained after the withdrawal of the Serb deputies, thus there was no longer an assembly of the “Republic of BiH”. There were the Federation of BiH and the Republic of Srpska, and what was presented in Dayton as the “Republic of BiH” were only Muslims-Bosniaks in the form of Alija Izetbegović, Haris Silajdžić and Muhamed Šaćirbej, who were just officials of a non-existent state. Certainly, their presence in Dayton and the signing of the agreement with the annexes was part of the scenario for ending the war.

The issue of the continuity of state legal structures of the former Yugoslav Republic of BiH was also resolved by the Dayton Constitution of BiH. Provision of Article 1.1. of the BiH Constitution, which indicates the continuity of the “Republic of Bosnia and Herzegovina”, very clearly and precisely determines in three segments that this refers exclusively to its international legal status. The Constitution stipulates that “the Republic of Bosnia and Herzegovina, whose official name will henceforth be “Bosnia and Herzegovina”, continues its legal existence: 1) according to international law as a state; 2) within internationally recognized borders; 3) remains a member of the United Nations, and may, as Bosnia and Herzegovina, retain or request membership within the United Nations system and other international organizations, but all with the internal structure modified as provided for by the Constitution of BiH.”

The internal structure to which the Constitution of BiH refers are two entities and that level of joint authorities that defines BiH as a state exclusively in foreign relations, and almost all internal sovereignty belongs to the entities.

Absence of internal legal continuity of BiH

The Constitution of BiH has two annexes. The first annex is “Additional Agreements on Human Rights to be applied in Bosnia and Herzegovina”, which explicitly lists 15 international conventions. The second annex is the “Transitional Arrangement” which, in Article 2 entitled “Extension of the Law”, regulates that “all laws, regulations and rules of legal procedure that are in force on the territory of Bosnia and Herzegovina at the moment when the Constitution enters into force, will remain in force in the extent that they are not in conflict with the Constitution, until otherwise determined by the competent state body of Bosnia and Herzegovina.” Therefore, these are not regulations of the “Republic of Bosnia and Herzegovina”, but regulations on the territory of Bosnia and Herzegovina. At that time, on the BiH territory, the Constitution and regulations of the Republic of Srpska were valid on its territory, as well as the Constitution of the FBiH, but also the regulations of the Republic of Croatia, Herzeg-Bosnia, on its territory. Outside of the territories of the Republic of Srpska and Herzeg-Bosnia, what remained, had regulations that had been passed,  before the Washington Agreement, by the “Republic of Bosnia and Herzegovina”, as the rest of the territory of pre-war BiH,

By the way, I should also mention the issue of the non-existent BiH holidays, which are persistently and falsely celebrated only in the part of the Federation with a Bosniak majority. The so-called “Independence Day, March 1” and November 25, as the day of the fictitious statehood of BiH, were determined by a law passed at the beginning of 1995, and therefore they were not holidays of the entire BiH. These were passed by the Assembly of the BiH Federation. The Assembly of the “Republic of BiH” no longer existed, since its deputies became deputies of the entities’ assemblies – the Republic of Srpska from January 9, 1992, and the Federation of BiH from March 1994. That is why the statement of the current Minister of Foreign Affairs in the Council of Ministers, Elmedin Konaković, is unacceptable, in a letter to the diplomatic and consular missions of BiH in the world, in which he states: “The Law on the Proclamation of March 1 as the Independence Day of the Republic of Bosnia and Herzegovina (Official Gazette of the RBiH No. 9/95), which has been in force since March 30, 1995, and that the Republic of Bosnia and Herzegovina, in accordance with Article 1/1 of the Constitution of BiH, continued the continuity of its legal existence under international law as the state of Bosnia and Herzegovina.”  

The International Dayton Agreement did not determine the INTERNAL continuity of the “Republic of Bosnia and Herzegovina” by any provision, either directly or indirectly. It does not exist either in a political, constitutional or any legal sense. Any reference to the internal continuity of the “Republic of BiH” has no legal basis in the international agreement that created and determined today’s Bosnia and Herzegovina. Since the signing of Annex 4 of the Dayton Agreement, which is the BiH Constitution, it has been determined that only the internal structure according to that international legal act is valid, and this is what the Bosniak side and part of the international community persistently omit, citing only the first part of Article 1.1. of the BiH Constitution.

International covenants are an integral part of the BiH Constitution

It is stipulated in the BiH Constitution, in its article 3.3.b., that “the general principles of international law shall represent an integral part of the law of Bosnia and Herzegovina”. This is further elaborated by items 7 and 8 of Annex 1 to the Constitution of BiH, according to which two documents are directly applicable in BiH:

• International Covenant on Civil and Political Rights, and
• International Covenant on Economic, Social and Cultural Rights,

which have the same wording as Article 1, which reads:

1. All peoples shall have the right to self-determination. Based on this right, they shall freely determine their political status and freely ensure their economic, social and cultural development.

• In order to achieve their goals, all peoples shall freely dispose of their own assets and its natural resources, while not impairing obligations arising from international economic cooperation, based on the principle of mutual interest and international law. A people may not under any circumstances be deprived of its own means of living.

• The member states of this covenant, including those states that are responsible for management of dependent territories and territories under trusteeship, shall be obliged to help exercising rights of peoples to self-determination and to respect this right in accordance with the provisions of the United Nations Charter.

Decisions of the BiH Constitutional Court without a constitutional basis

There are numerous decisions of the BiH Constitutional Court without a constitutional basis, made by outvoting of judges from the rank of Serbs, and sometimes Croats, by 3 foreign judges and 2 Bosniak judges.

An example is the so-called “Decision on the Constituency of Bosniaks, Serbs and Croats on the territory of the whole of BiH”, and not on the territory of the entities as prescribed by the Constitution of BiH, regulating the election of the Serb member of the Presidency in the Republic of Srpska, and the Bosniak and Croat members in the Federation of BiH, as well as Serb delegates from Srpska to the House of Peoples, that is, Bosniaks and Croats from the Federation to the House at the level of BiH. Alija Izetbegović, as the applicant on the basis of which the so-called “decision on the constituency” was reached, knew in advance what the decision would be. Although the majority of judges rejected the arguments of the applicant, the High Representative still took advantage of a certain ambiguity and imposed extensive changes to the entities’ constitutions. The disputed “decision on the constituency” served later for numerous imposition of amendments to the entities’ constitutions and numerous unconstitutional laws.  

A number of other decisions of the BiH Constitutional Court illegally changed the Dayton structure of BiH, denying the right of the Republic of Srpska to its rights guaranteed by the international agreement. Recently, the BiH Constitutional Court has been trying to deprive the Republic of Srpska of its right to property, declaring that it has no right to agricultural and forest land, waters, etc.

Persecution and punishment as retaliation against the Republic of Srpska

It is also necessary to look at the groundedness of the criminal offense of non-execution of decisions of the Constitutional Court of BiH prescribed by Article 239 of the Criminal Code of BiH. This provision of the Criminal Code of BiH serves the authorities of the unconstitutional Prosecutor’s Office and the Court of BiH to prosecute numerous persons, primarily from the Republic of Srpska, who perform the functions to which they were democratically elected and appointed. That is why it would be useful to analyze comparative legal solutions and practice.

The rule of law, not injustice, is a constitutional obligation

It is an obligation of the Republic of Srpska that it assumed by signing Annex 4 of the Dayton Agreement, which stipulates in Article 3.3.b. that “Entities and all their parts shall fully comply with this Constitution, which shall take precedence over those provisions of the law of Bosnia and Herzegovina, as well as the constitution and laws of the entities that are not in accordance with it, and with the decisions of the institutions of Bosnia and Herzegovina”.

Mr. Prime Minister,

It is necessary to look at all aspects of the aforementioned problems that limit the Republic of Srpska in the application of its constitutional rights and obligations. I expect the Government of the Republic of Srpska to take positions on the protection of the rights and interests of the Republic of Srpska and to prepare a document that will be used for discussion at the National Assembly of the Republic of Srpska. I believe that it is necessary to demand from all public administrative bodies to consistently apply the acts of the National Assembly and the Government.

                                                                                                            PRESIDENT

                                                                                                              Milorad Dodik