“Since the creation of the United Nations in 1945, it has never happened that an individual, especially a foreigner, imposed their will on a UN member state instead of its institutions, stating that failure to comply might constitute a criminal offense. This view is held by Dr. Milan Blagojević, a professor of constitutional law.
Unfortunately, such an imposition occurred in July this year in Bosnia and Herzegovina by Christian Schmidt, even though not even the parliament (of BiH or entities) can do that. Even the parliament cannot enact, in a constitutional manner, a provision stating that non-compliance with any parliamentary decision constitutes a criminal offense. However, Christian Schmidt imposed just that—stating that non-compliance with any OHR decision constitutes a criminal offense.
This unconstitutional behavior by Schmidt should be a reason for the current criminal proceeding against Milorad Dodik and Miloš Lukić in the Court of BiH to prompt that court to initiate a procedure according to Article 6.3.c) of the BiH Constitution.
This constitutional provision stipulates that the Constitutional Court of BiH is competent to decide on matters referred to it by any court in BiH regarding whether a law, upon which its decision depends, is compatible with the BiH Constitution, the European Convention on Human Rights, or the existence or scope of any general rule of international law.
Since OHR has never before imposed its ‘law,’ according to which non-compliance with any of its decisions constitutes a criminal offense, the Constitutional Court of BiH has never previously ruled on this matter.
Therefore, in the mentioned criminal case, the Court of BiH should initiate the aforementioned procedure pursuant to Article 6.3.c) of the BiH Constitution for several reasons. They all revolve around the fact that Schmidt’s behavior grossly and blatantly violates the sovereignty of BiH as a UN member state, which, like any other such state, is guaranteed by the UN Charter in Articles 2 and 78. These provisions from the UN Charter are imperative general principles of international law, whose existence and scope prohibit everyone, including Christian Schmidt, from imposing their will as a criminal offense and law on any UN member state. Only the competent parliament of such a state can prescribe such matters, and no one else has the right to substitute it.
Therefore, Schmidt’s behavior, stating that non-execution of his decision constitutes a criminal offense, has grossly and unprecedentedly violated the sovereignty of a state as an imperative general principle of international law, as prescribed by the UN Charter. This principle is also established in the BiH Constitution. Article 3.3.b) of that constitution stipulates that the general principles of international law, including the general principle of state sovereignty, are an integral part of the legal order of BiH and its entities. Thus, this provision of the BiH Constitution clearly prohibits anyone other than the competent institutions of BiH from imposing their will as law in BiH. Especially, this provision prohibits an individual from imposing that failure to comply with their (sole) will constitutes a criminal offense. Such an act is not permitted by the European Convention on Human Rights and its protocols in any of their provisions.
In short, these are the reasons why the Court of BiH should pose this question to the Constitutional Court of BiH in the case against Dodik and Lukić. If the presiding judge does not do this, which is likely, then the defense of the accused should propose it.”
