Bosnia and Herzegovina
Expected Council Action
In November, the Security Council will hold its semi-annual debate on Bosnia and Herzegovina (BiH). The Council also expects to vote on the reauthorisation of the EU-led multinational stabilisation force (EUFOR ALTHEA) prior to its 2 November expiration.
The 1995 General Framework Agreement for Peace (GFAP), also known as the Dayton Peace Agreement, created two entities within BiH: the predominantly Bosniak and Croat Federation of Bosnia and Herzegovina (FBiH) and the predominantly Serb Republika Srpska (RS). The two entities are linked by a rotating tripartite inter-ethnic presidency and a two-chamber legislative branch with equal representation by the three major ethnic groups (Bosniaks, Croats, and Serbs). Both entities also have their own executive and legislative branches.
The Dayton Peace Agreement also established the Office of the High Representative (OHR) and the NATO-led Implementation Force (IFOR) to oversee implementation of the agreement’s civilian and military aspects, respectively. In 1996, IFOR was replaced by the NATO-led Stabilisation Force (SFOR), which in turn was replaced in 2004 by the EU-led multidimensional stabilisation force (EUFOR).
In December 1995, the Peace Implementation Council (PIC) was established to garner international support for the Dayton Agreement. The PIC Steering Board (SB), which serves as the executive arm of the PIC and provides the High Representative with political guidance, consists of representatives from Canada, France, Germany, Italy, Japan, Russia, the UK, the US, the Presidency of the EU, the European Commission, and the Organisation of Islamic Cooperation (OIC), which is represented by Türkiye. In 1997, the PIC agreed to grant significant legislative powers to the High Representative. Known collectively as the “Bonn Powers”, these include the ability to take binding decisions and unseat elected officials who are found to be in violation of legal commitments made under the Dayton Agreement or the terms of its implementation.
The RS and Security Council members China and Russia do not recognise Christian Schmidt’s legitimacy as High Representative of BiH. Russia maintains that appointments to the position must be formally endorsed by a Security Council resolution, a position with which several other Council members disagree. (Of the seven High Representatives preceding Schmidt, only one was not endorsed by a Security Council resolution: Christian Schwarz-Schilling. On 30 January 2006, then-Council president Tanzania issued a letter (S/2006/61) welcoming the decision of the PIC to nominate Schwarz-Schilling as High Representative.)
On 22 July 2021, the Council voted on a draft resolution on BiH proposed by China and Russia. The draft text welcomed the designation of Christian Schmidt as High Representative and supported the appointment of the High Representative until 31 July 2022, with the subsequent “closure of the OHR”. With a vote of two in favour (China and Russia) and 13 abstentions, the draft resolution failed to be adopted. Following the vote, China argued that the outcome suggested that the Council did not support Schmidt’s appointment. Russia echoed this view, adding that the post therefore remained vacant. On 28 July 2021, Russia announced that it would no longer participate in meetings of the PIC SB and on 17 February 2022, said it would suspend its financial contributions to the OHR.
The US and European Council members believe that decisions made by the PIC SB on the appointment of High Representatives do not require the Security Council’s approval.
Key Recent Developments
On 21 June, the National Assembly of RS (NARS) adopted amendments to the Act on the Publication of Laws and Other Regulations in an attempt to absolve itself of the responsibility to publish the High Representative’s decisions in its official gazette. The amended law sought to render the High Representative’s decisions invalid in the RS. Two days earlier, on 19 June, the OHR had noted in a statement that “no political rhetoric or amendment to law can relieve institutions and those who work in them” of the obligation to cooperate fully with the High Representative. The statement underscored that the High Representative’s decisions “have the same status as laws enacted by domestic parliaments and carry the same constitutional necessity for publication, regardless of any subordinate law or regulation” and warned that by pursuing the amendments, RS would be “sailing in heavy waters”.
In June, tensions escalated further after the NARS adopted legislation opposing BiH’s Constitutional Court. The court comprises nine judges: four selected by the FBiH, two by the NARS, and three by the President of the European Court of Human Rights, in consultation with the BiH Presidency. RS President Milorad Dodik has consistently criticised the court, accusing it of bias against Bosnian Serbs. A prominent issue has been the inclusion of foreign judges, with many RS officials pushing for their removal from the court.
The court has accused the NARS of attempting to disrupt its work, noting that it failed to put forth a successor to one of its judges, Miodrag Simović, who retired earlier this year, and that it had called for the resignation of the other NARS-appointed judge, Zlatko Knežević.
In a 19 June statement, the court condemned “all political pressure” directed at Knežević and appealed to all parties to abstain from such actions. Additionally, the statement unveiled a modification to the court’s quorum rules, enabling decisions to be passed by a majority of all court members, or five judges. Previously, the court was unable to make decisions if judges from RS were not present. The change, therefore, enables the court to convene sessions and pass rulings even in the absence of RS judges. In a 20 June post on X (formerly Twitter), Dodik labelled this move as “anti-Serb, anti-constitutional and anti-Dayton”.
On 27 June, the NARS passed a law declaring rulings of BiH’s Constitutional Court non-applicable in the RS. This move sparked broad condemnation, with many fearing it signalled RS’s intention to secede. On 29 June, the US described the law’s adoption as representing “a dangerous escalation in secessionist threats”. Similarly, on 29 June, France condemned NARS’ decision, saying it contradicted BiH’s EU aspirations and had “no legal effect”. On 31 July, the US imposed sanctions on four Bosnian Serb officials for being responsible for or complicit in passing the law.
On 1 July, Schmidt issued several decrees to block NARS’ 21 June and 27 June decisions from taking effect. Notably, one decree modified BiH’s criminal code, allowing for the criminal prosecution of authorities or officials who fail to “apply, implement, enforce or otherwise comply with a decision of the High Representative”. Additionally, those who obstruct the decrees’ application, implementation, or enforcement can also face prosecution and could be subject to a prison sentence of up to five years.
On 7 July, Council members convened at Russia’s request for a meeting on the situation in BiH under “any other business”. Russia requested the meeting in response to what it described as “provocative changes” made to the Constitutional Court’s quorum rules, which Russia perceives as setting BiH on “the path to the destruction of the Dayton structure”. Assistant Secretary-General for the Middle East, Asia and the Pacific Mohamed Khaled Khiari briefed Council members.
On 11 September, a BiH court confirmed an indictment against Dodik on charges of failing to implement the High Representative’s decisions. This indictment was preceded by charges lodged against Dodik by the Prosecutor’s Office of BiH in August. Dodik dismissed the indictment, reiterating on 13 September that Schmidt is not a legitimate High Representative. At the initial hearing on 16 October, Dodik refused to enter a plea, saying that, despite his request for the indictment to be drafted in the Serbian Cyrillic script, it was provided in Latin instead.
Human Rights-Related Developments
In a 27 September statement, the PIC SB said that, since 2013, the RS government has sought to introduce legislation that would “place civil society organizations under the government’s close scrutiny and restrict their ability to exercise their democratic rights”. The proposed Draft Law on Special Register and Transparency of Work on Non-profit Organisations would pose a “significant threat to the overall state of human rights and democracy in [BiH]”. The statement called on RS lawmakers to vote against the draft law, noting that it would “go against the very notion of democracy”.
On 25 July, a group of UN experts issued a statement expressing concern at the adoption of an amendment to the RS criminal code that recriminalises defamation. The statement emphasised that “recriminalisation of defamation is a setback to the enjoyment of the right to freedom of expression, not only in the [RS] entity but throughout the country”. The RS approved these amendments despite strong opposition from various actors, including journalists, civil society groups, and international human rights organisations and mechanisms, who clearly noted that this move was “retrogressive”.
On 21 July, the Office of the High Representative issued a statement underscoring that the recriminalisation of defamation is an “attack on civil liberties characteristic of authoritarian regimes”. The statement also emphasised that this approach would enable the authorities to drastically limit and censor freedom of speech and “silence dissenting voices”.
Key Issues and Options
OHR’s role remains a key issue for the Council. Neither China nor Russia recognise Schmidt’s authority as High Representative and may call for the early closure of the OHR. One option for the Council is to consider a presidential statement requesting the International Court of Justice to render an advisory opinion on the procedures and modalities for appointing High Representatives of BiH under the Dayton Peace Agreement.
Another important issue is the need to address the increasing separatist actions and rhetoric in BiH. Council members may consider issuing a presidential statement reaffirming the continued relevance of the Dayton Agreement and urging all parties to refrain from divisive rhetoric and actions.
Deep divisions related to BiH’s Euro-Atlantic integration and possible accession to the EU and NATO—particularly between Russia on the one hand and the US and European Council members on the other—colour Council dynamics on BiH. The situation in Ukraine is likely to continue to permeate the Council’s engagement on BiH and contribute to further division between these two camps.
Despite differing opinions on the role of the OHR and the legitimacy of High Representative Christian Schmidt, Council members appear to agree on the need to renew the authorisation of EUFOR-ALTHEA.
UN DOCUMENTS ON BOSNIA AND HERZEGOVINA
|Security Council Resolutions|
|2 November 2022S/RES/2658||This was a straightforward renewal of the authorisation of the EU-led multinational stabilisation force (EUFOR ALTHEA) for another year.|
|Security Council Meeting Records|
|10 May 2023S/PV.9319||This was the semi-annual debate on Bosnia and Herzegovina.|