-Nedim Hogic, Postdoctoral Research Fellow with the University of Oslo and a Visiting Lecturer at the University of Tuzla
This is the seventh post of a Symposium on Militant Constitutionalism, comprised of 10 pieces. You can access the introductory post here.
Introduction
Writing on international post-conflict constitution-making, Dann and Al-Ali accurately described the constitution of Bosnia and Herzegovina (BiH), alongside those of Timor-Leste, Iraq, and Sudan, as an instance of an internationalized pouvoir constituant: rather than from popular sovereignty, the legitimacy of the constitutional text derives from the involvement of external actors. Even today, more than thirty years after the adoption of the constitutional text, the international presence remains structurally embedded in Bosnia’s constitutional and security order. This is achieved through three main external checks on domestic authorities: the Office of the High Representative (OHR), chaired by a High Representative (Hi-Rep), the three foreign judges appointed by the ECtHR President sitting on the BiH Constitutional Court, and the EU-led Althea peace mission. Within the wider framework of theoretical conceptualization of militant democracy, this international presence manifests itself as a structurally incomplete implementation of the Loewenstein’s concept of Democracy International, a body that he envisaged as combatting the rising transnational Fascist International. Respecting the editorial guidelines and limitations, in this blog post I will explain how the said incompleteness is revealed using the case of radical right-wing Bosnian Serb politician Milorad Dodik and his confrontation with the international presence in BiH.
A constitutional nightmare from which we cannot awake?
Depending on one’s view of the discipline, BiH can be understood as a comparative constitutional lawyer’s nightmare or a fairy tale. Its central level of government has extremely limited competence, spending only 7.5% of the BiH consolidated budget. Instead, the main governmental actors are the entities: the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS). Both entities have bicameral assemblies, and in FBiH, the upper house, the House of Peoples, and in RS, the Council of Peoples, may exercise ethnic vetoes over the decisions of the lower house of parliament, which is organized on a representative basis. The cantons do not have bicameral assemblies, yet several of them have special voting procedures within their legislative bodies, ensuring the representation of all three constituent peoples. The head of government is a tripartite Presidency elected directly, in which only members of the three dominant ethnic groups, Bosniaks, Serbs, and Croats, may be members. In such a situation marked by heavy decentralization and ethnic vetoes, it was perfectly logical that the highest court in the country, the BiH Constitutional Court, gained more importance than any of the constitutional courts in the region, leading to the court being viewed as the highest political arbiter in the country.
As if that is not enough, on top of this complex domestic structure sits an international one. Formed in 1997 to bridge implementation gaps and coordinate international peacebuilding efforts that followed the 1992–1995 war, the international community, which existed then but is now anachronistic to discuss, formed the Peace Implementation Council (PIC). The PIC appointed the High Representative (Hi-Rep) to facilitate the implementation of the Dayton Peace Agreement (DPA) that ended the war. This was deemed necessary because obstructions, at the time coming primarily from Serb political representatives, led to almost no progress in the first few years after the DPA’s adoption. However, the extensive interpretation of the High Representative’s authority has led to its use to remove officials and impose laws. Often, these laws transfer authority from the entities to the state level, which enraged Serb politicians who see the initial post-war BiH setup – a loose federation – as the only viable solution for the country. The BiH Constitutional Court found that these decisions are in line with the BiH Constitution, as the Hi-Rep is, effectively, a replacement for the inaction of domestic institutions. The Court would sometimes challenge the Hi-Rep decisions, for instance, reviewing one as discriminatory, infringing upon the electoral rights of citizens of Mostar. However, the Constitutional Court as well as the European Court of Human Rights refrained from questioning the authority of the Hi-Rep to remove or sanction officials, believing that the Hi-Rep, whose appointment was confirmed by the UN Security Council is a UN body.
The EU considered the existence and the authorities of the Hi-Reps as inherently undemocratic. But the disagreements between the UK and the US on the one hand and the EU member states on the other prevented its closure. Yet, even without these differing views, the EU states were aware that the removal of the Hi-Reps would likely trigger a need for a comprehensive constitutional reform that would inevitably have to incorporate the vast body of jurisprudence of the ECtHR that deals with discriminatory provisions of the BiH Constitution. At the heart of this jurisprudence lies the leading constitutional identity principle of the BiH Constitution, that of “constituent peoples”, whose unpacking could potentially trigger sharp political divisions and instability.
The clash between Milorad Dodik and the international presence
With such a backdrop, one would expect that the OHR’s rule would be relatively unconstrained, which was indeed the case between 1998 and 2006, when its actions resembled the activist approach to militant democracy that Loewenstein advocated for. Yet, between 2011 and 2020, the OHR, for a body with a vast mandate, did very little. No officials were removed, no laws imposed. It is in 2021, with the appointment of German ex-Agriculture Minister Christian Schmidt, that the Hi-Rep would return to play a more active role. However, the very appointment of Schmidt raised procedural doubts. The appointment of all previous Hi-Reps, save for one, was confirmed by the UNSC following a joint proposal by the PIC countries. Schmidt, however, was never confirmed by the UNSC, as the PIC countries, fearing opposition from China and Russia, never proposed him for confirmation. For China and Russia, this brings into question their legitimacy, as the PIC countries, in their view, do not have the authority to appoint the HiRep by themselves.
Schmidt’s appointment was strongly challenged by Milorad Dodik, the president of Alliance of Independent Social Democrats. This party, in power since 2006, has had the politics of constant confrontation with the international presence in BiH as one of its main features. Dodik was an early adopter of the populist tactics that exploited the grievances of the Serb population towards the international community, which they viewed as partial to the demands of other Balkan nations, in particular Bosniaks and Croats. At first, his tactics were welcomed and not opposed by the international presence. Namely, it was believed that Dodik was a better alternative to the earlier main Serb political party that harboured war criminals, boycotted the state institutions, and opposed the return of refugees to their pre-war homes. Dodik, for all his opposition to international presence, never questioned the war crimes prosecution, and save for an occasional rhetorical lip-service, fails to do so now.
Separatist actions by Dodik began already in 2008, when his successful tactic of threatening a secession referendum, withdrawal from the institutions, and enacting laws that were to derogate the international obligations of the country or signal virtue to the radical right allies in Europe. His chauvinist rhetoric led his party to be expelled by the Socialist Alliance already in 2011. But, Dodik quickly found new partners in the radical right parties ruling in Hungary, Slovakia, and present in other parts of Europe.
In 2023, charges against him were brought by the Office of the Prosecutor of BiH. Dodik, as acting President of the RS, signed the law adopted by the National Assembly, claiming that he was, under the Constitution of the RS, obliged to do so as the President is, under Art. 80 of the RS Constitution, obliged to sign the laws adopted by the Assembly and that, in any event, the HiRep Schmidt has no legitimacy, echoing the arguments previously made in that regard in the United Nations Security Council by Russia and China. The laws in question, adopted by the RSNA, were on the Law on Non-Application of Decisions of the BiH Constitutional Court and the Law on Amendments to the Law on Publication of Laws and Other Regulations of Republika Srpska. The meaning and signification of the first law is self-evident, while the meaning of the second was to ban the publication of HiRep decisions in the Official Gazette of the RS, thus stripping them of their legal power. Taken together, the two laws signalled that both mechanisms of foreign legal interventionism in BiH affairs, the High Representative and the Constitutional Court, would cease to be binding for the RS. It was widely believed that this was the first step towards formal withdrawal from the BiH institutions and de facto, if not de jure independence.
On July 1, 2023, the BiH Criminal Code was, through imposition by the HiRep, amended to explicitly criminalize non-compliance with Hi Rep decisions, making such defiance punishable by imprisonment. Specifically, the said amendment made it a crime for any person in public office to not apply, implement, enforce, or otherwise comply with a decision of the High Representative for Bosnia and Herzegovina, or to prevent in so doing, to be punished by imprisonment for a term of six months to five years. Additionally, an official ordered to act in the manner described above who felt compelled to carry out such an order not to lose their means of livelihood or not to be exposed to abuse at the workplace, but who informed their superior that such actions could constitute a criminal offense, may be punished more leniently.
Dodik promulgated the two laws previously invalidated by Schmidt on July 7, just as Schmidt’s imposition went into force. Following an indictment from the national prosecutor’s office, a trial in which Dodik was sentenced to one year in prison and a six-year ban on holding political functions ensued. On appeal, the judgment was confirmed. An extraordinary legal remedy, an application to the BiH Constitutional Court, was rejected. The application before the Strasbourg Court is pending.
Dodik’s trial was rather simple, as far as criminal trials go. The judgments shied away from entering into an international legal argument on Schmidt’s illegitimacy, stating simply that PIC appointed the HiRep with full legal authorization to do so. The BiH CC in appellate procedures simply confirmed its previous stance on the role that the HiRep has within the domestic legal system. Rather, it is what happened after the second instance verdict that merits our attention.
After an arrest warrant was issued, expecting a forceful arrest by the special forces of the Bosnian police, Dodik was to be evacuated by Hungarian special forces to Hungary, in a style similar to that of ex-Macedonian PM Gruevski. When it became apparent that the Bosnian special police forces would avoid forceful arrest to avoid an open confrontation, fearing conflict and lack of international support, Dodik travelled to Israel, crossing the border illegally, and attended a summit on antisemitism. Returning to the country, Dodik surprisingly surrendered to the Court of BiH, being brought there by the head of the national intelligence agency. As the provisions of the Bosnian law allow those sentenced to one year in prison to substitute their sentences with fees, Dodik replaced his prison sentence with a fine. Several months later, the US sanctions against Dodik were removed. In early 2026, Dodik visited the US, meeting with prominent political figures of the Republican administration. Notably, Donald Trump’s son visited the RS, demonstrating support for the radical right-wing agenda that is to undermine the liberal democratic framework in the rest of Europe, thus framing, just as Dodik has, the struggle for RS secession into a wider radical right-wing attempt to subvert democracy.
Loewenstein’s Paradox and the Dodik Problem
The case of Milorad Dodik fits Loewenstein’s typology of radical and militant democracy. Dodik’s politics are structured around the claim that the Serb people possess an inalienable collective will that supranational institutions or the entire state-level architecture have no legitimate authority to constrain. Every secessionist announcement, every piece of legislation stripping state-level institutions of binding force in RS, has been framed in the language of democratic self-determination: we are acting for our people, within our constitutional competences, against an international presence that was never properly authorized. The laws on non-application of BiH Constitutional Court decisions and the prohibition on publication of Hi-Rep decisions in the RS Official Gazette are paradigmatic examples. They are legally framed acts, passed through the regular legislative procedure, that systematically hollow out the institutions of the constitutional order. This is what Loewenstein called “perfect adjustment to democracy” — the use of democratic instruments to subvert democratic structures.
But Loewenstein’s framework does not simply vindicate the international presence’s response. He was equally concerned about the dangers of institutional countermeasures. In that sense, the Hi-Rep intervention, enshrined in the amendment to the BiH Criminal Code imposed by Hi-Rep Schmidt, essentially transformed noncompliance with an internationally appointed official into a criminal offense. The ensuing conviction of Dodik, and the drama surrounding his potential arrest and flight to Hungary, raised the question Loewenstein never fully resolved: what institutional safeguards ensure that the democratic elites standing for the democratic state’s right of self-preservation do not themselves become the anti-democratic force they claim to combat? Loewenstein placed faith in the judgment of responsible political and legal elites, but the BiH context, in which the legitimacy of Schmidt’s appointment is genuinely contested under international law, and the constitutional framework places significant obstacles on the respect of the highest degree of liberal democracy in the first place, stretches the framework beyond the conditions under which it was originally conceived.
The clash between Schmidt and Dodik demonstrates not a failure of the militant democracy framework but its structural incompleteness. Namely, it is undoubtful that Dodik’s alliance with the global radical right can be constructed to be resembling a Fascist International that Loewenstein warned us about. However, Loewenstein advocated for a Democratic International that protects democracies against the Fascist international, yet the Hi-Rep, which merely perpetuates dependency on external powers, is far from that. Loewenstein assumed a consolidated democratic order that protects individual liberties, in which the anti-democratic actor was a newcomer exploiting established freedoms. BiH was never that: it was built on ethnic power-sharing and dependence on external actors from the outset. In a situation where there is little hope that a unified international consensus on BiH’s future will emerge, this dependency will further depart from Loewenstein’s ideas on Democratic International.
Suggested citation: Nedim Hogic, Symposium on Militant Constitutionalism Part VII: International Militant Constitutionalism: The Strange Case of Milorad Dodik, Int’l J. Const. L. Blog, June 16, 2026 at https://www.iconnectblog.com/symposium-on-militant-constitutionalism-part-vii-international-militant-constitutionalism-the-strange-case-of-milorad-dodik/