Academic journal article
By Kesic, Obrad
Serbian Studies , Vol. 21, No. 2
Republika Srpska Cannot Accept the High Representative's Unlawful Decisions and Hence Rejects Them Entirely
1. The Republika Srpska Government has a legal obligation not to accept or implement the High Representative's decisions, hence it rejects them entirely. The Government is bound by the law and constitution to conduct its affairs according to the rule of law. This is required by the domestic law of BiH, including the BiH and Republika Srpska Constitutions, and applicable international law. For this reason, the Government cannot accept as legally valid or implement decisions and orders of the High Representative that are inconsistent with BiH and Entity law and obligations of BiH pursuant to international law. (1)
2. The Republika Srpska Government remains committed and continues to adhere to the legal pursuit and prosecution of all war crime cases.
3. The Court of Bosnia and Herzegovina and Prosecutor's Office of Bosnia and Herzegovina are foreign bodies in the judicial system of BiH, imposed by decisions of the High Representatives in contravention of the Constitution of BiH as provided in Annex 4 to the international agreement known as the Dayton Accords. The High Representative is an interpreter of only Annex 10 to the Dayton Accords and has no mandate to interpret Annex 4--the BiH Constitution; in particular, he has no mandate to amend the BiH Constitution. Also, the BiH Constitutional Court has no mandate to amend the BiH Constitution but only to assess whether legislation issued by authorities conforms to the BiH Constitution. Because there is no mention of either the BiH Court or the BiH Prosecutor's Office in the Constitution, then any discussion about whether such imposed bodies are a constitutional category is illusory. For this reason, the decision on the constitutionality of BiH institutions was thus installed, where the Serb and Croat judges were outvoted by the three foreigners and two Bosniaks. With such a decision, the Constitutional Court joined in the High Representative's unlawful practice of imposing law. This is why the work of the BiH Court and BiH Prosecutor's Office constitutes an assault on law, which is corroborated by today's decisions of the High Representative.
4. It is in this context that the attempt to extend the mandate of foreign prosecutors and judges working in the BiH Prosecutor's Office and BiH Court, by the High Representative imposing the law, should be analyzed. The High Representative's decisions are an unlawful attempt to overrule by decree the legitimate determination reached by the democratically elected representatives of BiH's citizens through the prescribed legislative process.
5. Pursuant to the imposed Law on Court of Bosnia and Herzegovina and the Law on the Prosecutor's Office of Bosnia and Herzegovina, foreigners were allowed to work as judges and prosecutors in the BiH Court and Prosecutor's Office, during a five-year "transitional period" ending in December 2009. (2) In October 2009, the BiH Parliamentary Assembly, pursuant to its constitutional authority and procedure, voted to reject amending the law to extend the transitional period of these foreign prosecutors and judges. For reasons set forth below, the elected representatives of BiH had sound policy reasons for not amending the law.
6. In addition to legal and constitutional provisions, the Government is further bound by the position of the Republika Srpska National Assembly as set forth in its Conclusions of 1 October 2009: "The RS National Assembly hereby expresses its full support to the position and conclusions expressed by the RS President and RS Prime Minister in their statements before the National Assembly at its 19th special session on the occasion of the Report on the legislation the High Representative to Bosnia and Herzegovina attempted to impose on 18 September 2009; specifically, in case the High Representative continues to seek to impose and enforce said legislation, the RS National Assembly shall consult the public. …