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Bosnian legal experts told BIRN that the proposed Bosnian Serb referendum would not destroy the authority of the state judiciary because it would not be legally binding on the entire country, although it would raise inter-ethnic tensions.
Republika Srpska politicians proposed the referendum because they believe that the state court and prosecution is biased against Serbs, especially in war crimes cases.
Kasim Trnka, an expert in constitutional law, said that if the referendum is held, relations will become tenser between Republika Srpska and the country’s other political entity, the Bosniak-Croat Federation, because the legal consequences of the vote will not be accepted.
“It is important to note that both the Bosnian state court and the prosecution were established according to a state-level law and can be abolished only by passing a law terminating the existing law we now have,” said Trnka.
He explained that in order to terminate the current laws on the state judiciary, a two-thirds of all lawmakers in the Bosnian parliament would have to be in favor. This is unlikely, he said, because Federation Bosniaks and Croats would “certainly vote against the proposal”.
Political and legal analyst Radomir Neskovic also said that the referendum would not have a significant influence on Bosnian state-level judiciary, because it would not have the legitimacy of the majority of the country’s citizens.
Neskovic says that revisions to the constitution of Bosnia and Herzegovina and the existing law on the court of Bosnia and Herzegovina are the only things that could have consequences for the state-level judicial bodies.
“Everything else falls in the sphere of daily politics,” Neskovic said.
Political analyst Tanja Topic said that the existence of such a court was not a problem in ‘normal’ countries.
“I think that the relation towards the Bosnian state court reflects the relation towards war crimes and the lack of readiness by all sides in Bosnia and Herzegovina to face their own dark truth,” Topic said.
“It is clear that political actors in the country want the court to be under their control, so it can be used for manipulating the facts on the past war,” she added.
Bosnian Serb President Milorad Dodik said last week that the referendum date will become known at the next session of the Republika Srpska entity’s National Assembly scheduled for February 9, although it remains uncertain whether the vote will ultimately be held or not.
Officials in the Federation entity believe the referendum constitutes a violation of the Dayton Agreement which ended the 1992-95 war.
But Bosnian Serb politicians say that if the majority of people in the entity vote against the authority of the Bosnian state court and prosecution, decisions made by both institutions will no longer have any force in Republika Srpska.
