Breaking federalism and undermining judicial independence: Evidence from Bosnia and Herzegovina

Harun Išerić

Senior Teaching and Research Assistant at the University of Sarajevo’s Faculty of Law

In recent years, particularly in March and April 2025, as part of a plan to execute an illegal secession from Bosnia and Herzegovina (BiH), one of its two subnational units – Republika Srpska (RS) – has undertaken various legal actions. They undermine the supremacy of BiH laws and its judicial and security institutions (contrary to Article III/2 of the Constitution of BiH) and jeopardize judicial independence and the rule of law (contrary to Article I/2 of the Constitution). These actions include de facto and de jure suspension of federal laws and institutions, including the Constitutional Court of BiH (CC BiH), the unilateral takeover of federal competence on security and the judiciary by creating a parallel institutional framework, weakening federal institutions by insisting – under the threat of property confiscation – on the resignation of federal judiciary employees resident in RS. They had one aim: to undermine the capacity of BiH to provide a criminal law response to the illegal secession and strengthen political control over RS’s judiciary to encourage it to support their illegal actions.

In response to these activities, federal-level judicial institutions have launched criminal investigations and CC BiH had initially adopted interim measures and later quashed adopted laws and bylaws. However, as these measures have so far remained unenforced (including the arrest warrant for the RS leadership), concerns about the sustainability of Bosnian federalism and judicial independence have been raised. In this post, I outline these recent developments and argue that further action is needed in response.

First target: the Constitutional Court of BiH

Given that CC BiH is one of the few federal level institutions which, on the one hand, doesn’t operate or deliver decisions under ethnic or entity quorum and, on the other hand, is the final arbitrator of federal disputes, it was the first target of the consistent delegitimization and undermining by RS authorities. RS’s refusal to fulfill judicial vacancies resulted in delays of more than four years in deciding human rights cases, and with more than 6,000 cases in which decisions are drafted and have yet to be deliberated by the Plenary session (which is formed by all judges of the CC BiH). Eventually National Assembly of RS (NA RS) adopted a Law on the Non-application of Decisions of the CC BiH, enforcement of which  was prevented by the Office of the High Representative (OHR). CC BiH’s resistance strategy was almost non-existent. This is particularly striking since its federalism decisions remain unenforced, even though this is punishable by up to five years imprisonment. Such a situation calls for new means of ensuring compliance (e.g. by civil penalties) but CC BiH decided not to move in this direction. In the words of the CC BiH president herself, the CC BiH has lacked the courage to take the necessary steps.

RS President Dodik has threatened to abolish and defund all ordinary courts in RS that decide to implement any CC BiH decision. Judicial reaction to the political pressure and hostile environment created against CC BiH has varied. On the one hand, ordinary courts in RS have continued to communicate with the CC BiH in a prompt and orderly manner and execute its decisions. On the other hand, there are examples in which Dodik’s threats have had a chilling effect. In one notable criminal case, the RS public prosecutor appealed the decision of the first instance court, citing the existence of the NA RS law prohibiting the execution of the CC BiH decisions. The decision of the Supreme Court of RS has been pending for an unusually long period of time.

Second target: federal level judicial institutions

In March 2025, the NA RS passed a Law on the Non-Application of Laws and Ban on the Operation of Extra-Constitutional Institutions of BiH. It prohibited the actions and activities of the Court of BiH, the Prosecutor’s Office of BiH, and the High Judicial and Prosecutorial Council of BiH (the self-governing judicial body, with the competence to appoint and dismiss judges and prosecutors, amongst other things) (HJPC BiH) on the territory of RS, excusing anyone from criminal liability in implementing this law. Although the CC BiH initially suspended its implementation, federal judicial institutions were effectively prevented from executing any action to arrest Dodik and other accused.

Additionally, NA RS adopted a Law on HJPC RS, establishing a parallel judicial governance body to the federal level HJPC BiH, while also confirming its existence in the Draft Constitution. In defiance of CC BiH’s suspension of the adopted Law on HJPC RS, RS’s minister of justice proceeded to adopt a Rulebook, which is secondary legislation, on the appointment of members to the HJPC RS. As a result, the CC BiH adopted a ruling on non-enforcement, which sought to initiate criminal proceedings for non-execution of CC BiH decisions. So far, there have been no visible results, although the facts and law are clear.

It should be noted that RS authorities have also instructed judges to abolish communication with the HJPC of BiH and “not consider it a valid institution”. As a result, judges have been experiencing a disrupted working environment. In one extreme example, a judge from RS has requested from the judicial disciplinary panel that her pure presence at the disciplinary hearing should be taken as a mitigating circumstance, as she was present under “a risk.”

These two RS laws highlight the existing tension between federal and subnational entities. Federal judicial institutions have been falsely described as unconstitutional even though the CC BiH has previously found them to be constitutional (here and here), including the HJPC BiH (here and here). When deciding on the constitutionality of these RS laws, CC BiH again (for earlier decision see here) underlined that federal competences on the judiciary and security were transferred to the federal level in accordance with the Constitution (by the agreement of the entities) and as such could not unilaterally be claimed by any of entities. For such a transfer to become reversible, a decision must be made by the federal parliament.

The constitutional tensions which have been raised by RS legislation further underline the importance of following through on one of the EU priorities for BiH: ensuring legal certainty on the distribution of competences across levels of government.

Third target: federal level judiciary employees from the territory of RS

The NA RS incriminated the non-enforcement of decisions of RS’s bodies and institutions, especially addressing official or responsible persons residing in RS or elected from the territory of RS, who are employed in the institutions of BiH. This would include federal-level judges, prosecutors, even judges of the CC BiH, as well as civil servants. Furthermore, NA RS has requested that Serb employees or those with residence in RS working in federal judicial institutions resign their positions and join the RS’s institutions, claiming that these employees are just filling the Serb quota and are employed only because they are Serbs from RS and not because of their skills and expertise.

Although the CC BiH initially suspended the criminal law changes as well as NA RS’s request for resignations, RS authorities have taken further steps to enforce these acts. For example, the Government of RS adopted a Decree on the transfer of employees from federal judicial institutions, setting a deadline of 19 March 2025. NA RS also adopted a law establishing a special prosecutor’s office and court for the enforcement of criminal law changes. At this moment, the establishment of these institutions has been suspended given that the Constitutional Court of RS has found it to be in violation of the vital interest of the Bosniak people as it did not prescribe the ethnic structure of its personnel.

The aim of these actions was to delegitimize and destabilize federal institutions. A significant number of resignations would paralyze the work of judicial institutions, including the prosecution of war crimes and other serious crimes (organized crimes, human trafficking, etc.) that are prosecuted before the Court of BiH. Furthermore, the absence of Serb employees/employees from RS would raise questions about the legitimacy of federal institutions and their decisions.

No employee has applied for a transfer to RS judicial institutions. One member of the HJPC BiH elected in respect of the Supreme Court of RS resigned for personal reasons, but the media have reported that the initial reasons were related to  pressure from RS authorities. This vacancy was filled three months later. At the same time, another member of the HJPC BiH from RS was recently reelected. Given that no one has resigned from federal institutions, Dodik threatened them with confiscation of property within RS and defunding and abolishing a court or prosecutor office if its employee is a member of HJCP BiH.

In the background of these actions is a claim that people with residence in one entity or who are elected from the territory of one entity to federal level institutions must be loyal to the entity and/or its institutions and not to the federal level or its institutions. The CC BiH had elaborated that these employees are exclusively accountable at the federal level, and their position is regulated by the relevant legislation of BiH (e.g. the Law on Labor in the Institutions of BiH).

An adequate  reaction by the federal judicial regulator to these threats was missed, while the OHR stated that “we are not living in North Korea where one person decides the life of everybody. We are in free Europe.” Months later, the European Network of Council for the Judiciary (RECJ) condemned the intimidation of judges and prosecutors. HJPC BiH and the judicial community have remained silent, ignoring threats to judicial independence and failing to show solidarity with endangered officials and leadership.

Fourth target: threatening to defund and abolish ordinary courts in RS

Public institutions, including judicial bodies, that do not implement the NA RS Law on non-application of laws on prohibition of the activities of extra-constitutional institutions of BiH as well as the Law on the non-application of decision of the CC BiH, are being threatened with defunding and potential abolition. The Ministry of Internal Affairs and Ministry of Justice of RS were instructed to monitor and collect data with regards to the implementation of these laws and further sanction individuals with contrary behavior and suspend funding or even abolish institutions which choose not to execute these laws. RS judicial institutions have been under increased supervision and threats of budget suspension, relocation and abolishment.  

So far, no courts or public institutions have been sanctioned. At the same time, no reports are available on the implementation of RS laws.

Judiciary keeping things as usual — but for how long?

These challenges to judicial independence and the survival of BiH federalism are unprecedented. Their resilience and durability are being tested like never before, symbolically coinciding with the 30th anniversary of the Bosnian Dayton Constitution.

At the same time, the judiciary has been silent and may remain so until the crisis abates. Meanwhile, the RS leadership is operating without legal consequences, determined to enforce unconstitutional laws. In this context, it remains imperative for the judiciary to adopt a more assertive stance, as the situation could rapidly deteriorate. Employees can only withstand the political pressure and remain loyal to BiH for so long. RS remains committed to establishing a Special Prosecutorial Office and Special Court of RS, which will target those who fail to comply with unconstitutional laws. Given ethnic and entity mechanisms of blockade within federal executive and legislative institutions, the responsibility of defending judicial independence increasingly falls on the judiciary itself, particularly the HJPC BiH. HJPC BiH must take a more proactive role in safeguarding the judiciary from political interference. The judicial community must be more vocal about the serious judicial independence and rule of law issues involved.  A silent resistance is simply not enough, as it further erodes the already limited public trust in judicial institutions.

In addition to the HJPC BiH and judicial community, the OHR should not limit its response to verbal condemnation. Given its investment in judicial reform and its mandate to uphold human rights and the rule of law, more concrete actions are needed to ensure that judicial officials residing in RS will not face punishment for remaining loyal to federal institutions. These actions could include financial sanctions against those undermining judicial independence and removal of elected officials obstructing judicial autonomy. More broadly, international support by regional and European judicial associations and organizations like the Venice Commission and the UN Special Rapporteur on the independence of judges and lawyers remains critical in safeguarding individual and institutional independence.  

Finally, the criminal liability provisions for non-enforcement of CC BiH decisions remain largely ineffective. To ensure compliance, it may be necessary for the CC BiH to develop additional enforcement mechanisms—such as the imposition of financial penalties—to safeguard the integrity of its rulings.

Harun Išerić is a Senior Teaching and Research Assistant at the University of Sarajevo’s Faculty of Law

Suggested Citation: Harun Išerić, ‘Breaking federalism and undermining judicial independence: evidence from Bosnia and Herzegovina’ IACL-AIDC Blog (26 June 2025) Breaking federalism and undermining judicial independence: Evidence from Bosnia and Herzegovina — IACL-IADC Blog