It is time for the BiH Parliament to annul Schmidt's arbitrariness and abolish the criminal offense of 'disobeying the High Representative'!

By: Rasim Belko

On the first day of July 2023, High Representative Christian Schmidt imposed amendments to the Criminal Code of Bosnia and Herzegovina, adding Article 203a and amending Article 239. With this move, Schmidt formalized that the criminal offense is the non-implementation of his decisions. Without prior political debate, without public legitimacy, and most importantly, without the constitutional authority to limit the legislative bodies of a sovereign state.

Two years later, the experiences we have gained through the "Milorad Dodik" case and the acquittal of Miloš Lukić show the full problematic nature of this move. The introduction of criminal liability for non-implementation of the High Representative's decisions is not only legally and politically controversial but also dangerous for the already fragile democratic order of Bosnia and Herzegovina.

In his decision, Schmidt stated that "The Law enters into force on a provisional basis until the Parliamentary Assembly of BiH adopts it in the same form, without amendments." By doing so, he effectively tried to prohibit the elected representatives of the citizens from exercising their constitutional right – the right to legislate, to debate, amend, reject, and pass laws. However, Schmidt's mandate does not give him the authority to suspend the will of the Parliamentary Assembly of BiH. The BiH Constitution, however flawed, still stipulates that legislative power rests exclusively with domestic institutions.

If this decision is not put aside, its consequences could become even more dangerous. Judicial practice in BiH is already deeply contaminated by political influences, and the retention of Schmidt's decision leaves room for the judicial prosecution of all those who do not agree with the monolithic thinking coming from the Office of the High Representative. The OHR, in its current form, is increasingly losing its neutrality and is more often perceived as a political instrument in the hands of hegemonic interests from the region – especially when discussing threats of imposing an election law tailored in Zagreb and western Herzegovina.

If Schmidt, in the twilight of his mandate, decided to once again resort to the Bonn powers and impose such an election law – what consequences would politicians from the Bosniak and pro-Bosnian bloc who opposed him face? How many of them, like Milorad Dodik today, would find themselves under indictment? What would remain of the freedom of political action if it becomes punishable not to agree with the decision of a foreign diplomat?

In that context, removing Schmidt's decision is no longer a matter of political whim – it is a democratic necessity.

And that necessity should unite political actors at the internal level and help them jointly resolve the judicial sword hanging over their heads. In other words, politicians from the Serb, Croat, and Bosniak blocs, as well as from the civic bloc, have reasons to jointly vote "NO" to Christian Schmidt's arbitrariness through the BiH Parliament. Because geopolitical, and even regional, circumstances are changing. There is also the possibility of changing the High Representative himself, and if we do not want to become a country where billions are spent on elected officials, and decisions are made by a viceroy, it is time for action.

Because the Parliamentary Assembly of BiH has the full capacity, according to the Constitution and Rules of Procedure, to review, amend, or completely repeal this decision. Regardless of what Schmidt wrote in his decision. Otherwise, we could soon witness a wave of indictments that do not make much sense. Because a state that prosecutes political representatives acting within the framework of the system's institutions, the Constitution, and laws is certainly closer to some African tribal pact than to the European Union.

And therefore, it is time for Schmidt's intervention to be withdrawn, not only legally but also politically, from the legal order of Bosnia and Herzegovina. Because what is not the result of an internal political agreement, but a foreign decree, cannot serve as the foundation of democracy and progress.

Dodik knows this, which is why Sarajevo should offer him such a solution. Otherwise, both those in Sarajevo and those in Banja Luka will suffer, depending on the geopolitical winds. And a system in which freedom of political action is limited by the decree of an old viceroy has not the slightest chance of integrating into a Union for which the rule of law and democracy are paramount.