The High Representative in Bosnia and Herzegovina, Christian Schmidt, will present his fifth report on the situation in the country to the United Nations Security Council on Thursday. In it, he noted that since taking Office, he witnessed an "unprecedented level of attacks" on the Dayton Agreement and his mandate, mostly coming from Milorad Dodik, the President of Republika Srpska (RS) entity.

In the report covering the period from April 16 to October 15 of this year, Schmidt emphasized that such attacks, inter-ethnic tensions, and an increase in violence against returnees have further hindered progress on the 5+2 Agenda.

“The ruling coalition in Republika Srpska (RS), led by the Alliance of Independent Social Democrats (SNSD), continued with pursuing a dangerous policy of unilaterally imposing a misleading interpretation of the GFAP and the constitutional framework of Bosnia and Herzegovina (BiH) around the hypothetical concept of ‘original Dayton’. This concept negates the continuity between the Republic of Bosnia and Herzegovina and BiH as contained in Article 1.1. of the BiH Constitution and presents the State of Bosnia and Herzegovina as a union of states or confederation of two “state-forming” entities which delegated only limited powers to the BiH State,” the High Representative stated.

Schmidt mentions that such incorrect interpretations in which the RS is presented as an entity (or state) of the Serb people with the right to self-determination serve to “legitimize the adoption of policies and legal acts that question or violate fundamental aspects of the General Framework Agreement for Peace, particularly to justify the rejection of the authority of the Constitutional Court, as well as the blocking of decision-making and the functioning of key state bodies.

“During this reporting period, Milorad Dodik, the President of Republika Srpska, intentionally provoked and then exacerbated two major political crises in BiH to undermine the Dayton Agreement, including the constitutional and legal order and the institutional framework of the state, and to delegitimize my mandate,” Schmidt stated, adding that in a joint statement signed on April 24, leaders of the ruling parties in the RS agreed to take “a series of steps to create conditions for future secession.”

Among the conditions, they sought to bind RS representatives in BiH institutions to suspend decision-making at the state level until the RS Government and the relevant committees of the National Assembly of Republika Srpska (NSRS) gave their consent.

“The RS authorities publicly justified this unconstitutional decision by the lack of ‘Serb judges’ in the Constitutional Court of BiH, even though the ruling coalition of the RS itself requested the departure of these judges from the Court,” Schmidt noted.

He pointed out that Dodik also sought the removal of international judges from the Constitutional Court of BiH.

“These attacks by the RS authorities were systematically aimed at the two authorities with a mandate and means to support the BiH Constitution, as set out in Annex 4 of the General Agreement for Peace, and to prevent secession: the High Representative and the Constitutional Court of BiH,” Schmidt wrote.

“Another crisis occurred on September 6 when the RS President stated that he would arrest and deport me if I entered the RS territory. He claimed that RS police would deny me protection and that RS institutions would ban my entry,” Schmidt added, stating that this continued RS's pattern of obstructing the institution responsible for the civil implementation of the Dayton Agreement.

He explained that the RS Government first stopped sharing information with OHR, and then OHR was denied access to the NSRS sessions. He also noted that police protection within the RS was no longer provided.

State Property

Schmidt mentioned that his office has intensified its commitment to the issue of state property since the previous report and has formed a group of technical experts with the support of several member states of the PIC Steering Board. The group consists of domestic and international legal experts in constitutional and property law.

He then mentioned that after the temporary decision of the Constitutional Court of BiH on March 2, 2023, in which the new Law on Immovable Property used for the functioning of public authorities in Republika Srpska was called into question, Dodik “continued his rhetorical campaign regarding the issue of state property.”

“RS President Dodik referred to the issue of state property as a ‘red line’ during his official visit to Belgrade and stated that the RS seriously considers declaring independence due to the issue of state property,” he said.

“Meanwhile, further transfers and disposals of state property continue not only in RS but throughout the country, in violation of the prohibition of disposal of state property and contrary to the relevant decisions of the Constitutional Court of BiH. For example, the RS Government regularly makes decisions on the allocation or transfer of ownership rights to agricultural land and other categories of state property. At the same time, a review of relevant cadastral records in many individual cases shows that systematic re-registration of state property, especially forests and agricultural land, has already been carried out in the name of Republika Srpska,” Schmidt said.

International court verdicts

He then touched upon the court system, noting that the criminal records in BiH do not contain information about verdicts of international judicial bodies against BiH citizens.

“No judgment of the International Criminal Tribunal for the former Yugoslavia or its successor has entered the domestic criminal records of BiH. Persons who have been internationally convicted of genocide, crimes against humanity, or war crimes can obtain a clean certificate in BiH. After serving their sentence, they could immediately run for elections or be employed in public office. Unfortunately, international judgments for the most serious violations of international humanitarian law are neglected in political, professional, and social life, to the detriment of reconciliation and social cohesion, while different parts of the country still celebrate war criminals,” he pointed out.

Discrimination and human rights

The judgments of the European Court of Human Rights (ECHR) in the Sejdic-Finci group of cases remain unimplemented, he added, explaining that these judgments have established discriminatory patterns in the constitutional framework of BiH and the BiH Election Law.

He then referred to the judgment of the European Court of Human Rights in the case of Slaven Kovacevic in which he complained about discrimination in his voting rights in elections for the members of the BiH Presidency and the members of the House of Peoples of BiH.

“The sensitivity of this issue was heightened by the fact that, for the first time in the history of the Court, the judgment and its individual elements were publicly discussed on a Sarajevo web portal before its official publication, making it clear that the content of the judgment leaked before the official announcement,” Schmidt emphasized.

“If confirmed, the judgment could further divide political parties in BiH on constitutional reform issues, which would make the implementation of ECHR and Constitutional Court decisions even more challenging, as they require constitutional amendments. Implementation requires a strong international commitment to facilitate and extensive engagement within society to make these amendments acceptable to all constituent peoples and others, ensuring non-discrimination,” Schmidt concluded.