Foreign Judges on the Constitutional Court of BiH: Should They Stay or Should They Go?

Harun Iseric

University of Sarajevo

Foreign judges on constitutional courts are not exclusive to Bosnia and Herzegovina (BiH). But BiH, along with Kosovo and Cyprus, is a particular example of foreign judges serving in a post-conflict society as a democratic peace-building and power-sharing mechanism. After 28 years of active participation in judicial decision-making at the Constitutional Court of BiH (CC BiH), there are loud voices (growing louder) on the political scene for their removal, backed by reference to the Bosnian EU integration path. So, should they stay or should they go?

The Hybrid Constitutional Court of Bosnia and Herzegovina

The Constitutional Court of BiH was established as a hybrid court in the aftermath of the Bosnian wars, by the Dayton Peace Accords. The Washington Agreement of 1994 established the Federation of Bosnia and Herzegovina (FBiH), which is now one of the two entities of BiH, the other being the Republika Srpska. FBiH is a Bosnian Muslim and Croat-dominated entity, while the Republika Srpska is a more Serb-centred entity. The Washington Agreement and the first FBiH Constitution prescribed that for a transitional period of five years, one-third of the judges of the Constitutional Court of FBiH (ie, three of them) would be foreigners (who could not be citizens of neighbouring states), appointed by the President of the International Court of Justice after consultation with the President and Vice-President of FBiH. The BiH 1995 Constitution includes a similar provision for three of the nine judges of the Constitutional Court to be foreign judges, who cannot hold citizenship of BiH or neighbouring states. The institution that appoints them is different: the three foreign judges are appointed by the President of the European Court for Human Rights, following consultations with the Presidency of BiH (the collective head of state).

But the BiH Constitution does not automatically terminate the mandate of foreign judges at the end of a transitional period, as the FBiH Constitution did. As I discuss here, Article VI(1)(d) of the Constitution allows the Parliamentary Assembly of BiH to legislate an alternative selection method for the three foreign judges. To date, the Parliamentary Assembly has not done so.

Is It Time for the Foreign Judges To Go?

The first five years after the end of the Bosnian wars were supposed to be a transitional period, during which governance responsibilities were transferred from international actors to domestic authorities. 

The continued presence of foreign judges has been criticized since the 2000s, mainly by Serb politicians. In 2023 the Republika Srpska adopted the Law on Non-application of Decisions of the CC BiH. This Law was intended to be temporarily enforced for as long as the BiH Parliamentary Assembly did not adopt a Law constituting a CC BiH without foreign judges. Such pressure from the authorities of Republika Srpska has resulted in a working group being formed by the BiH Ministry of Justice in August 2023, with the task of drafting legislation to reform the composition of the CC BiH and/or the selection method for foreign judges. Almost five months later, the working group has not delivered on this task because it is faced with opposing opinions of its members on whether the law could end the term of sitting foreign judges.

Should foreign judges continue to serve on the CC BiH or is the BiH mature enough to be ruled only by domestic judges? This section canvasses four key issues behind this debate: sovereignty, cost, reduction of involvement of foreign judges in the work of the Court, and the role of foreign judges on an ethnically divided Court.

Sovereignty

The leading argument against foreign judges made by Republika Srpska politicians and academics is BiH sovereignty. The composition of the CC BiH makes it look like a “shared sovereignty” entity with sovereignty divided between foreign and domestic actors. A former domestic judge of the CC BiH described foreign judges as an element of a protectorate. Building upon that, Serb politicians have been arguing that the presence of foreign judges prevents BiH from exercising its full sovereignty.

At the same time, there is another, more powerful and influential, foreign element in BiH – the Office of the High Representative (OHR). The OHR has the power to enact laws (for the latest enacted law, see here) and amendments to the Constitutions of both entities (for the latest constitutional intervention, see here), to stop the execution of CC BiH decisions (see an example here), as well as to sack public and elected officials. The OHR is also still present in BiH because the so-called 5+2 agenda, a condition for the OHR to close the door, has not been fully implemented.

The counterargument is that foreign judges ought to remain until the 5+2 agenda is implemented and there is democratic development, stronger and more resilient state institutions and a culture of the rule of law. The current High Representative, Christian Schmit, has said both the OHR and foreign judges should remain “[u]ntil Dayton [Peace Agreement] is fully implemented” and “until Bosnia is a fully democratic society because there is a threat of conflict and disintegration of BiH.”

Further, BiH is not the only country in Europe with foreign judges sitting on its highest court. Other European countries, including Council of Europe member states, have foreigners drawn from neighbouring European states sitting on their top courts.

Cost

The CC BiH sits in three formations. The Plenary Court is composed of all judges of the Court; the Grand Chamber is composed of all the domestic judges; and the Small Chamber is composed of the Court’s President and the two domestic Vice-Presidents. The Small Chamber decides on interim measures and administrative issues.

The involvement of foreign judges has been decreasing constantly since December 2003, when the CC BiH changed its rules. For the last 20 years, admissibility and human rights cases (which make up most of the Court’s workload) have been decided by the Grand Chamber, which – as just noted– does not include foreign judges. Constitutional review cases and some exceptional human rights cases are decided in Plenary Court. Looking at data from 2010 to 2021, the Grand Chamber decided 99.1% of cases compared to the Plenary Court which decided 0.9% of all cases. From 2010 until 2021, the Plenary Court decided only 628 cases (183 constitutional review cases and 445 human rights cases). In contrast, the Grand Chamber decided 68,511 cases. Basically, the foreign judges are no longer involved in human rights decision-making. Transferring knowledge about the European Convention of Human Rights and other human rights instruments was one of the main reasons for foreign judges’ inclusion and that reason does not exist anymore.

Foreign judges enjoy the same rights as domestic judges, including the level of their salary. But foreign judges cannot be appointed as President of the CC BiH. One foreign judge is a Vice-President, but does not have the formal additional duties of the domestic Vice-Presidents who are members of the Small Chamber. There is a perception that foreign judges therefore work less but require additional resources to finance their travel and accommodation costs (since they are not BiH residents), on top of their judicial salary. Further, out of 12 foreign judges who have sat on the CC BiH since 1995, only two (Joseph Marko and Margarita Caca-Nikolovska) spoke any of the local languages, adding costs relating to translation of session hearings and draft and final decisions.

Such disadvantages have been especially visible since November 2022, as since then there have not been enough domestic judges to constitute a Grand Chamber. Therefore, all decisions must be made by the Plenary Court, including those that could normally be made by the Grand Chamber. Therefore, all decisions, including admissibility decisions and decisions on the merits in human rights cases, must be translated into English. Translation results in delays that could eventually result in the violation of the right to a trial within a reasonable time (a right protected by both the BiH Constitution and the European Convention on Human Rights). For comparison, from November 2021 until November 2022, CC BiH decided on the merits of around 950 human rights cases, compared to around 170 cases decided from December 2022 until December 2023.

The Role of Foreign Judges on an Ethnically Divided Court

Six domestic judges are elected by a simple majority in entity parliaments. This rule has been criticized by the EU, as it has resulted in politicized and ethnicity-based appointments. The entity parliaments have consistently elected two Serbs (from Republika Srpska), two Croats, and two Bosniacs (from FBiH) to the CC BiH. This practice provides space for ethnic background to dominate, as has been demonstrated in a few cases and is most visible in the content of dissenting opinions. David Feldman, a former foreign judge on the CC BiH, claims that for the domestic judge on the CC BiH it is difficult to demonstrate independence since there is a popular presumption that domestic judges should represent the interests of their respective nominating entity or people. He also argues that domestic judges in the Courts’s first five year term voted in accordance with the interest of their respective peoples, such that legal professionalism, loyalty to the BiH Constitution and the CC BiH was subordinated to loyalty to entities and peoples. But, such voting behaviour was not exclusive to the Court’s first term: it has been revitalised in the last decade, especially in politically highly sensitive cases.  This is borne out in how the terms of two judges have ended. One judge was dismissed in 2010 for addressing the head of the Republika Srpska as boss. Another judge resigned in 2023 because he was asked to do so by the political body which appointed him – the legislature of the Republika Srpska. In a way, this suggests he also understood the legislature of the Republika Srpska as his boss.

It follows that without changing the method of electing domestic judges of the CC BiH and strengthening their independence, there should not be exclusion of foreign judges.

Bosnian Serb politicians and some Bosnian Croat politicians have argued that foreign judges always side with the two Bosniac judges, and thus form a majority when deciding politically charged cases. According to them, three foreign judges with two Bosniac judges have been voting to weaken the constitutional position of Republika Srpska, especially when it comes to the division of competences between the levels of government. Croatian arguments were more concentrated on the fact that Croat judges could be outvoted in cases of the protection of vital interests (ie, a veto power which can be used in the House of Peoples of the Parliamentary Assembly of BiH by one of the three caucuses (Bosniac, Serb or Croat) if a decision is identified as a threat to the vital interest of the entity or group they represent).

Foreign judges cannot on their own constitute a majority in the CC BiH. Since decisions are made by a majority of at least five of the nine votes, if the foreign judges on the Court were voting en bloc, they would need two more votes from any domestic judges for their position to constitute the majority position. Ergo, foreign judges could also stay in the minority.

Although a five to four voting ratio (with Bosniacs and foreign judges constituting the majority) was quite frequent in the CC BiH’s first five year term, that has not been the case in later years. According to David Feldman, from 2002 until 2011, the CC BiH has functioned increasingly consensually, and judges have developed a high level of mutual trust and respect.

According to the Court’s data, in the period 2010 – 2021, the CC BiH decided 183 constitutional review cases. In 61% of these cases it decided unanimously, and in 39% cases by majority. There is not space in this blog post to discuss the details of the voting data, data on dissenting opinions etc (for an overview of dissenting opinions from 1997 to 2017, see here). But, it should be noted that in the Court's most significant case (the leading case in the state property group of decisions), the majority was constituted of all three foreign judges and five out of the six domestic judges (with only one single domestic judge – from Republika Srpska – in the minority). In the National Day of Republika Srpska case, which triggered a constitutional crisis and attacks on the legitimacy of the CC BiH and foreign judges, the majority consisted of the three foreign judges and three of the domestic judges, with only two (from Republika Srpska) in minority (one domestic judge was absent). Research by Alex Schwartz has shown that “there is no evidence from any model to support the accusation that the foreign judges are biased against the Republika Srpska entity relative to the central state.” Furthermore, the behaviour of foreign judges has not been predictable but rather exhibits a tendency towards restraint, at least with regards to the challenges to existing power-sharing mechanisms. Although foreign judges have been decisive in solving some of the most controversial issues, one cannot discuss the numbers without exploring the legal reasoning for decisions or the legal argument presented in the majority opinion and/or dissenting opinions.

Finally, foreign judges act as judge-rapporteurs in constitutional review cases. These are very often highly politically sensitive cases, and so domestic judges are excluded from acting as judge-rapporteurs in order to achieve as high a degree of objectivity and impartiality in these cases as possible.

Considering that domestic judges still remain influenced by ethno-political elites and their personal ethnic background, and that foreign judges do not dominate the work and processes in the Court as they can’t constitute a majority without domestic judges and they typically participate in deciding a limited number of cases (mainly constitutional review cases for which the foreign judges act as rapporteurs), I argue that foreign judges still have a decisive role to play in post-conflict BiH state building.

So, Should Foreign Judges Stay?

Although the transitional post-war period ended in 2002, it does not seem that the time has come for foreign judges to leave the CC BiH. While the voices opposing foreign judges are getting louder and more persuasive, foreign judges still play an important role as a counterbalancing check on the ethnically divided CC BiH, where domestic judges are still being bossed around by domestic political elites. As long as the OHR is present and the 5+2 agenda has not been fulfilled, BiH can’t be considered stable enough, nor its democratic institutions developed and resilient enough, for domestic politicians to take full responsibility for the country, including the selection of a fully domestic composition for the CC BiH.

In the meantime, the Parliament of BiH should consider changing the current method for selecting foreign judges (a prerogative provided to that body by the Constitution) to provide for greater transparency and participation of domestic actors in that process.

When the time comes to end the involvement of foreign judges on the CC BiH, broader constitutional reform will be required to ensure the Court is independent from political elites and ethnic affiliation by establishing a new appointment procedure.

Harun Išeric is Senior Teaching and Research Assistant at the University of Sarajevo’s Faculty of Law. He is a member of the Constitutional Affairs Council of the BiH Presidency member Dr. Denis Becirevic, member of the national self-regulatory Press and Online Media Council Complaints Commission, and member of the Novo Sarajevo Local Municipal Election Commission.

Suggested citation: Harun Išeric, ‘Foreign judges on the Constitutional Court of BiH: Should they stay or should they go?’ IACL-AIDC Blog (6 February 2024) Foreign Judges on the Constitutional Court of BiH: Should They Stay or Should They Go? — IACL-IADC Blog (blog-iacl-aidc.org)