Why Dodik and the RS National Assembly can hang their conclusions and referendums on a hook

For NAP writes: Dr. sc. Amir Šelo, legal expert

In the work of the 24th special session of the National Assembly of the RS, held on 08/22/2025, Conclusions were adopted regarding the Information on the decision of the Central Election Commission (CEC) of BiH on the termination of the mandate of the President of the RS, Milorad Dodik. The Conclusions entered into force on the day of their adoption, i.e., 08/22/2025, and were published on the official website of the National Assembly of the RS.

Analysis of the decisions from the 24th special session of the NSRS

‣ The Conclusions, among other things, present legally unfounded facts that the Election Law of BiH is a legal act of lower legal force than the Constitution of the RS and that it cannot have primacy of application over the provisions of the Constitution of the RS and that holders of office are elected in accordance with entity laws.

The Election Law of BiH was adopted in 2001 and its title-preamble clearly states that the Election Law is adopted in accordance with Article II 1., Article IV 1., 2. and 4.a) and Article V 1.a) of the Constitution of BiH and Annex 3 (Election Agreement) of the General Framework Agreement for Peace in BiH "with the aim of promoting free, fair and democratic elections that ensure the realization of democratic goals".

Article V of Annex 3 clearly stipulates that the parties agree to establish a permanent election commission, which will be responsible for the conduct of future elections in BiH. The Constitutional Court of BiH, in case no. U-12/24 of September 19, 2024, declared the Election Law of the RS unconstitutional and repealed it in its entirety because it was contrary to Articles I/2. and III/3.b) of the Constitution of BiH.

In its practice, the Constitutional Court of BiH has established that the adoption of entity laws contrary to the procedure prescribed by state laws raises the question of the constitutionality of such laws in terms of the provisions of Article III/3.b) of the Constitution of BiH, and that the obligations imposed by state laws must be respected (decisions: U-14/04 of October 29, 2010, U-2/11 of May 27, 2011).

Therefore, the Election Law of BiH represents a decision of BiH institutions within the meaning of Article III/3.b) of the Constitution of BiH, and this Law, among other things, establishes the principles on which election laws and regulations at other levels of government must be based. Entities are obliged to respect the decisions of BiH institutions, as well as the principle from Article VI/5. of the Constitution of BiH, according to which the decisions of the Constitutional Court are final and binding.

‣ The Conclusions misinterpret the powers of the High Representative for BiH to enact legal regulations and challenge the method of his appointment.

The powers of the High Representative stem from Annex 10 of the General Framework Agreement, relevant UN Security Council resolutions, and the Bonn Declaration, and these powers are not subject to the control of the Constitutional Court, nor is the exercise of these powers.

However, when the High Representative intervenes in the legal system of BiH, substituting domestic authorities, he acts as a BiH authority, and the laws he enacts are of the nature of domestic laws and must be considered laws of BiH (Decisions of the CC BiH: U-9/00 of November 3, 2000, Decision no. U-16/00 of February 2, 2001, Decision no. U-25/00 of March 23, 2001, Decision no. U-27/22 of March 23, 2023).

The European Court of Human Rights, in the judgment "Berić and others v. BiH" (Dec), no. 36357/04 et al., ECHR 2007-XII) of 2007, took a position on the powers of the High Representative in paragraphs 26 and 27.

Namely, after the initialing of the General Framework Agreement for Peace, the Peace Implementation Conference was held in London on December 8 and 9, 1995. At the Conference, the Peace Implementation Council (PIC), its Steering Board, and the High Representative, as Chairman of the Board, were established.

On December 15, 1995, the day after the General Framework Agreement for Peace in BiH entered into force, the UN Security Council adopted Resolution 1031, which authorized the introduction of the High Representative from an informal group of countries actively involved in the peace process (Peace Implementation Council - PIC) as a measure of implementation in accordance with Chapter VII of the UN Charter.

Since the powers originally given to the High Representative (described in the Peace Agreement) were not fully clearly defined, the PIC subsequently elaborated his mandate in more detail.

The adoption of the conclusions of the Bonn Peace Implementation Conference in December 1997 perhaps represents the most far-reaching measure by which the PIC authorized the High Representative to dismiss public officials whom he considers to be violating legal obligations under the Peace Agreement, as well as to impose temporary legal acts in situations where domestic institutions have not done so.

UN Security Council resolutions that followed the first SC resolution supported the conclusions of the peace implementation conferences by further elaborating the mandate of the High Representative (e.g., Resolution 1144, which supports the conclusions of the Bonn Conference).

In the judgment of the European Court of Human Rights "Berić and others v. BiH", paragraph 27 clearly concludes that Resolution 1444 requires the High Representative to submit his reports to the UN Security Council to enable it to exercise overall control (The UN Security Council constantly closely monitors the situation, Article 40 of the Resolution).

The condition that the Secretary-General presents the High Representative's reports to the Security Council is only an additional guarantee, as the Secretary-General is considered to represent the general interests of the UN. Since the High Representative's mandate is of indefinite duration, meaning that a veto by a permanent member of the Security Council can prevent the completion of the transfer of powers, the Court did not consider this fact alone sufficient to conclude that the UN Security Council does not exercise overall effective control.

In such circumstances, the Court considers that the High Representative exercised legally assigned powers under Chapter VII of the UN Charter, and thus the contested measure is, in principle, "attributable" to the United Nations within the meaning of Article 3 of the Draft Agreement on the Responsibility of International Organizations.

On July 14, 2023, UN Secretary-General Antonio Guterres, in response to an inquiry from the Chairperson of the Presidency of BiH, Željka Cvijanović, confirmed that the PIC Steering Board is the competent body for appointing the High Representative.

‣ The Conclusions state that "the judgment of the unconstitutional Court of BiH is not accepted and is rejected".

The aforementioned conclusion of the National Assembly of the RS is legally unfounded. The Law on the Court of BiH was proclaimed by the High Representative by decision of 11/12/2000 and this decision was published in the "Official Gazette of BiH" No. 29/00. That decision stated that it enters into force immediately on a temporary basis, until the Parliamentary Assembly of BiH adopts this law in the prescribed form, without amendments and without conditions.

The Parliamentary Assembly of BiH, at the session of the House of Peoples – held on June 25, 2002, and at the session of the House of Representatives – held on July 3, 2002, adopted the Law on the Court of BiH ("Official Gazette of Bosnia and Herzegovina" No. 16/02). The Constitutional Court, by Decision No. U-26/01, determined that the Law on the Court of BiH is in accordance with the Constitution of BiH.

‣ The Conclusions present unlawful positions that the National Assembly of the RS "does not accept the continuous attempts to dismantle and abolish the Republika Srpska as an institutional framework and a state-legal entity of the Serb people".

The Constitutional Court of BiH, in its Third Partial Decision U-5/98 of June 30 and July 1, 2000, declared the words "state of the Serb people" in Article 1 of the Constitution of the RS unconstitutional. It also presents false claims that "Republika Srpska is a contracting party to the Dayton Peace Agreement". The RS is not a party to the General Framework Agreement for Peace in BiH, as the signatories to the General Framework Agreement are the Republic of BiH, the Republic of Croatia, and the Federal Republic of Yugoslavia.

‣ In the part of the conclusions, "the decisions and practice of the Constitutional Court of BiH are rejected". According to Article VI/5. of the Constitution of BiH, the decisions of the Constitutional Court are final and binding. According to Article 239. of the Criminal Code of BiH, if an official or responsible person in an institution of BiH, an entity, Brčko District of BiH, or a canton, city or municipality or local community or any local self-government body, or a responsible person who does not apply, implement, execute or otherwise respect a final and binding decision of the Constitutional Court of BiH, including a decision on a temporary measure, a final and enforceable decision or a temporary measure of the Court of BiH, the Human Rights Chamber of BiH or the European Court of Human Rights, or who prevents or otherwise obstructs the application, implementation or execution of such a decision, shall be punished with imprisonment from six months to five years.

A security measure prohibiting the holding of office is also imposed for this criminal offense. Such unlawful conclusions have the characteristics of the criminal offense of incitement, which is prescribed by Article 30 of the Criminal Code of BiH.

‣ The National Assembly, through its conclusions, "demands that all authorities, institutions, and official and responsible persons at the level of the RS and at the level of local self-government units do not take any actions related to the possible conduct of early elections for the President of the Republic".

These are unlawful actions that may have the characteristics of the criminal offense of "Prevention and Holding of Elections" from Article 215 of the Criminal Code of the RS ("Official Gazette of RS", no. 64/17, 104/18 - CC decision, 15/21, 89/21, 73/23, "Official Gazette of BiH", no. 9/24 - CC decision, "Official Gazette of RS" 105/24 - CC decision, 19/25, "Official Gazette of BiH", no. 14/25 - CC decision and "Official Gazette of RS", no. 31/25).

Furthermore, the conclusion establishes that "any cooperation with the Central Election Commission of BiH regarding this issue would constitute the commission of the criminal offense of 'Disrespect or Non-fulfillment of Decisions of Institutions or Bodies of Republika Srpska - Article 278a'. This is a non-existent criminal offense in the RS entity, as the provisions of Article 278a of the Criminal Code of the RS ceased to be valid based on the Decision of the Constitutional Court of BiH No. U-7/25 of March 7, 2025 ("Official Gazette of BiH", No. 14/25).

With such a conclusion, the National Assembly of the RS, as a legislative body, undermines the principle of legality from Article 2 of the Criminal Code of the RS and calls on other official and responsible persons in the institutions of the RS to commit the criminal offense of "Non-fulfillment of Decisions of the Constitutional Court of BiH and the Court of BiH" from Article 239 of the Criminal Code of BiH.

‣ The Conclusions also state that state property belongs to the entities based on the general clause of the Constitution of BiH, which is also a legally unsustainable conclusion.

According to the Constitution of BiH, only the state of Bosnia and Herzegovina has been granted the "attribute of state territory", both in terms of domestic constitutional law and in terms of international law (Third Partial Decision in case no. U 5/98 of July 1, 2000, paras. 29-30).

Furthermore, the Constitutional Court of BiH has concluded in its practice that the regulation of state property is within the exclusive jurisdiction of the state of BiH, i.e., the Parliamentary Assembly of BiH to resolve the issue of disposal of state property by law (Decisions of the CC BiH: U-1/11, U-8/19, U-9/19, U-4/21, U-10/22, U-5/23).

‣ The Conclusions instruct the Collegium of the National Assembly to prepare the text of the Resolution on the self-determination of the Serb people and Republika Srpska. It should be recalled that the Constitutional Court of BiH, in its Third Partial Decision U-5/98 of June 30 and July 1, 2000, declared unconstitutional the provisions of the Constitution of the RS and the Preamble, as amended by Amendments XXVI and LIV, in the part that states the right of the Serb people to self-determination, respect for their struggle for freedom and state independence, and the will and determination to connect their state with other Serb-populated states.

The Court then concluded that the mention of sovereignty, state independence, state creation, and the comprehensive and close connection of the RS with other Serb-populated states in paragraphs 1, 2, 3, and 5 of the Preamble of the Constitution of the RS violates Article I/1. in conjunction with Article I/3, Article III/2.(a) and 5. of the Constitution of BiH, which guarantee the sovereignty, territorial integrity, political independence, and international sovereignty of BiH.

‣ As the Conclusions "demand that the President of Republika Srpska, Milorad Dodik, continue to perform the function of President of Republika Srpska to the fullest extent", this de facto constitutes an unlawful exclusion of the jurisdiction of the Central Election Commission of BiH prescribed by the Election Law of BiH.

By excluding the validity of state laws on the territory of the RS, the sovereignty of the state of Bosnia and Herzegovina on a part of its territory is de facto and de iure abolished. The National Assembly is thus acting beyond its powers (beyond the powers).

Since a decision on calling a republican referendum with content contrary to the constitutional order of BiH was made at the 24th special session of the National Assembly, the aforementioned conclusions and decisions of the National Assembly of the RS must be annulled. Namely, the referendum question with the content "Do you accept the decisions of the unelected foreigner Christian Schmidt and the judgments of the unconstitutional Court of BiH rendered against the President of Republika Srpska, as well as the decision of the CEC on the revocation of the mandate of the President of Republika Srpska Milorad Dodik?" is contrary to the Constitution of BiH and the Constitution of the RS.

Article 77 of the Constitution of the RS stipulates that the National Assembly may decide to make a decision on certain issues within its jurisdiction after a prior expression of citizens' will in a referendum. It should be recalled that the Constitutional Court of BiH accepted jurisdiction to examine the constitutionality of the National Assembly's decision to call a republican referendum because the referendum question was contrary to the final and binding decision of the Constitutional Court, and thus the decision to call the referendum raised the issue of violation of Articles I/2. and VI/5. of the Constitution of Bosnia and Herzegovina (see decision: U-10/16, paras. 32–40).

In case no. U-10/16 of December 1, 2016, the Constitutional Court determined that the Decision on calling a republican referendum no. 02/1-021-894/16 of July 15, 2016 ("Official Gazette of RS" no. 68/16) is not in accordance with Article I/2. and Article VI/5. of the Constitution of Bosnia and Herzegovina, and the results of the referendum held on September 25, 2016, with the referendum question "Do you support the celebration of January 9th as the Day of Republika Srpska?" were annulled.

At the same session, amendments to the Law on Referendum and Civic Initiative were adopted under an urgent procedure. By amending this Law, it is stipulated that the National Assembly may establish a special commission for conducting the referendum (Referendum Commission), and that the provisions of this law concerning the work of the Republican Commission apply to the work of the Referendum Commission when it is established for conducting the referendum.

It should be pointed out here that Article 18 of the Law on Referendum and Civic Initiative ("Official Gazette of RS" no. 61/24, "Official Gazette of BiH" no. 23/25 - CC BiH decision) stipulates that the composition, organization, competencies, and other issues relevant to the work of the Republican Commission are regulated by the Election Law of the RS.

By Decision of the Constitutional Court of BiH no. U-13/24 of March 27, 2025, the provisions of the Law on Referendum and Civic Initiative that gave the Republican Commission the authority to regulate the form and content of the voter list by its rulebook, to conclude and confirm the final excerpts from the voter list used for conducting the referendum, and for the Republican Commission to obtain data for maintaining the voter list and preparing excerpts from the voter list electronically through the Ministry of Internal Affairs of the RS, were declared unconstitutional and ceased to be valid.

This means that only the Central Election Commission of BiH can provide an excerpt from the voter list for referendum purposes. If the linguistic interpretation of Article 2 of the amendments to the Law on Referendum and Civic Initiative is applied, it is concluded that the provisions of the Election Law of the RS apply to the work of the Referendum Commission.

In this regard, by Decision of the Constitutional Court of BiH no. U-12/24 of September 19, 2024, the Election Law of the RS was completely annulled and ceased to be valid. Furthermore, by Order of the Constitutional Court of BiH in case no. U-12/24 of July 10, 2025, all legislative, executive, and judicial institutions in the RS, all official or responsible persons in these institutions of the RS or local self-government units or any local self-government body, as well as official or responsible persons from the RS performing duties in the institutions of Bosnia and Herzegovina, are prohibited from taking any actions based on the annulled Election Law of the RS ("Official Gazette of RS" no. 61/24).

Since the implementing regulations from Article 75 of the Law on Referendum and Civic Initiative have not been adopted, the legislator stipulated that election regulations apply (editor's note: Election Law of the RS). Accordingly, since the provisions of the annulled Election Law of the RS apply to the work of the Referendum Commission, it cannot operate lawfully.

The conclusions and the decision to call a referendum with a referendum question contrary to the constitutional order of BiH constitute an unconstitutional activity aimed at dismantling the state of BiH, creating legal uncertainty, dualism in the functioning of institutions, and ultimately endangering the security and stability of the state of BiH.

The functionality of BiH as a state is not a simple sum of the functionalities of individual territorial-administrative levels of government and their competencies, but a harmony of all levels of government, which, among other things, is manifested through the normative hierarchy that the Constitution of BiH unequivocally establishes in its Article III/3.b), i.e., through the harmonization of legal regulations in the legal system according to their hierarchy, in which the Constitution of BiH holds the highest place.

The aforementioned conclusions and the Information regarding the decision of the Central Election Commission of BiH on the termination of the mandate of the President of the RS, Milorad Dodik, do not only express political positions of the National Assembly or make declarative statements, but also establish obligations for public authorities of the RS.

In this regard, the Information with conclusions adopted at the 24th special session of the National Assembly of the RS has the normative character of a general legal act. Thus, these conclusions raise issues of delimitation of competencies between the entities and the state and the possibility of transferring competencies between the entities and the state, in the sense of Article III/5. of the Constitution of Bosnia and Herzegovina.

These conclusions violate the principle of the rule of law from Article I/2. of the Constitution of BiH, violate the constitutional principle of the hierarchy of legal regulations from Article III/3.b) of the Constitution of BiH, and the duty to act in accordance with Article III/5.a) of the Constitution of BiH. In this regard, they must be annulled. Official and responsible persons in the RS entity are obliged to execute the decisions of BiH institutions, otherwise such actions are subject to criminal prosecution.