Republika Srpska referendum will spur reforms
Republika Srpska’s (RS) planned referendum on the Bosnia and Herzegovina (BiH) Court and Prosecutor’s Office is an opportunity for RS citizens to help spur reforms to institutions that were illegally forced on BiH by the Office of the High Representative, the international bureau which oversees implementation of post-war accords.
RS president Milorad Dodik has issued a detailed report and legal analysis explaining why the referendum is legal and necessary.
The referendum is part of the RS’s longstanding efforts to bring about essential reforms to the BiH Court and Prosecutor’s Office - reforms that many European observers agree are necessary.
For example, the BiH Court and Prosecutor’s Office must end its pattern of discrimination against Serb victims of war crimes and its deference to the wishes of the Bosniak SDA party.
The International Crisis Group has criticised the Prosecutor’s Office for its failure to prosecute some of the war’s worst war crimes against Serbs.
Even US deputy chief of mission Nicholas M. Hill recently observed that the chief prosecutor is “largely believed to be heavily influenced by Bosniak political forces” and that there are “complaints that the prosecutor’s office has too many strong-willed SDA acolytes on its staff”.
Out of 7,480 Serb civilian war deaths, just 10 have led to a final conviction in the BiH court.
The BiH Court and Prosecutor’s Office have also expanded their jurisdiction through unlawful means, taking jurisdiction over cases under entity law charges essentially whenever they see fit. EU officials and experts have agreed with the RS government that the Court’s jurisdictional practices violate European standards on legal certainty and the principle of the natural judge.
The RS government has long sought reforms to address these and other problems, including through the EU’s structured dialogue on justice. Unfortunately, the BiH Court and Prosecutor’s Office, backed by Bosniak politicians, the EU’s high representative, and some officials of foreign governments in Sarajevo, have fiercely resisted any reforms.
The RS hopes the referendum, by registering its citizens’ lack of confidence on the Court and Prosecutor’s Office, will help bring about reform.
Referendums are fully consistent with the BiH constitution and the practice of democratic states throughout Europe and around the world.
As the Council of Europe’s Parliamentary Assembly said in a 2007 resolution, “Referendums are an instrument of direct democracy which belong to the European electoral heritage.”
The proposed referendum is protected by the BiH constitution, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights (ICCPR) as a peaceful and legally structured mechanism for freedom of expression by RS citizens of their views and opinions dealing with public institutions and the high representative.
The high representative has foreclosed all constitutional challenges to his orders and has punished BiH citizens for their individual expression.
The BiH Court and Prosecutor’s Office were created in 2000 and 2002, respectively, by decrees of the high representative after the BiH Parliamentary Assembly declined to create them.
The high representative, a position created under Annex 10 of the post-war Dayton Accords, has never had any authority to decree laws, as the text of Annex 10 makes clear.
Former UK ambassador to BiH Charles Crawford, who helped invent the “Bonn Powers,” the high representative’s mandate, has written: “As far as I could see the Bonn Powers had no real legal basis at all.”
The RS is hopeful that the upcoming referendum, in addition to giving RS citizens a voice about institutions that wield power over them, will promote long-overdue reforms of the BiH Court and Prosecutor’s Office.
Mario Djuragic is head of Republika Srepska's representation in Brussels