Illegitimate lawfare: Bosnia uses Israel as a battleground - opinion

A few weeks ago, the International Criminal Police Organization (Interpol) was asked by Bosnia and Herzegovina to issue a “red notice” seeking the arrest of Milorad Dodik, president of the Republika Srpska, one of the country’s two component entities. 

Dodik was in Jerusalem at the time and had to leave an international conference on antisemitism organized by Diaspora Affairs Minister Amichai Chikli to deal with the development. 

The Israeli press reported the story of how the government had been asked to arrest the visiting leader. 

What the Israeli media did not report was that just three days later, Interpol announced that it declined to issue the red notice against Dodik, finding Sarajevo’s request legally baseless under Interpol rules on murderers and rapists, issued as a matter of course when a member state requests. 

Interpol only allows its system to be used to seek the arrest of those wanted for “ordinary crimes.” 

Ordinary crimes can range from murder to mass murder, things that are obviously wrong or widely punished. Interpol’s constitution makes clear that it is not to be used for “political offenses.” 

The organization’s case law, contained in its 2024 Repository of Practice on Art. 2 and 3 makes clear that issues involving constitutional struggles within a country, such as crimes of “overthrow of the constitutional order,” do not qualify. 

The speed with which Interpol put the kibosh on the red notice demonstrates the bad faith nature of the Bosnian central authorities’ attempt to nab the Spriska president in Jerusalem. 

Getting the intended results 

Despite Interpol’s prompt action, Bosnian authorities got the result they wanted: negative headlines around Dodik and creating the impression that he is an international fugitive, while disrupting his attendance at an international conference. The process itself was the punishment. 

Bosnia seemed untroubled that it were disrupting an antisemitism conference, despite the country’s difficult history with the Jews. 

In short, Sarajevo engaged in a form of lawfare – weaponizing legitimate existing legal institutions for political ends – and in the process corrupting them – to which Israel should be particularly sensitive. 

Dodik’s alleged “crime” is not simple to understand, but it is manifestly of this nature. 

The allegations against him can serve one useful purpose – to educate the Israeli public about the extraordinary situation in the country, which ultimately led to the confrontation between Dodik and the Sarajevo government. 

Bosnia has a unique form of government. Supreme power lies in the hands of an official called the high representative, a European bureaucrat appointed by an international consortium anchored by European states. The high representative is the de facto viceroy of the country. 

He can annul government decisions, and even rewrite laws, on his own say so. He is not elected by, or in any way accountable to, the Bosnia public or any Bosnian or federal institution. 

The office of the high representative grew out of the Dayton Accords, which ended the Yugoslav civil war, primarily due to the defeat of Serbian forces following a NATO bombing campaign. But the Dayton Accords, which were agreed to by Serbian, Croatian, and Bosnian sides, did not give dictatorial powers – or any lawmaking authority – to the high representative. 

The international administrators of Bosnia took those powers a few years later, backed by a consortium of foreign states. 

What makes this possible? 

What makes all this possible is the European military force that remains stationed in Bosnia – peacekeepers who never leave. 

The high representative’s legislative powers lack any basis in Bosnia’s Constitution, and would seem to contradict Art. 2, which provides that the country will be a “democratic state, which shall operate under the rule of law and with free and democratic elections.”

The Srpska government has opposed the high representative’s undemocratic powers, which it also sees as being aimed primarily against it. In the past couple of years, the high commissioner has struck down several Srpska laws that challenged his lawmaking authority. He bypassed Bosnia’s consensual lawmaking process by changing election laws. He declared it a crime to disobey his decrees. 

Dodik, as leader of Republica Srpska, was convicted in February of not obeying the high commissioner, now a crime. The court sentenced him to a year in prison, and banned him from politics for six, following a now undeniable global pattern of judicial authorities seeking to remove national right-wing leaders from politics by jailing them. 

The Bosnian constitution allows the heads of the two entities to engage directly with other countries – and the central government’s attempt to disrupt a diplomatic visit by Dodik by grossly abusing Interpol process could itself be seen as unconstitutional. But in Bosnia, that is only a crime if the high commissioner wants it to be.

For Israelis, the strange story of Bosnia’s political turmoil should highlight the vast hypocrisy of European states. 

Israel does not make laws to govern the Palestinian Authority or even annul their laws – even those like “pay for slay,” aimed at murdering Jews. Yet Europe accuses Israel of denying “self-determination” – while Europe itself empowers a three-decades-long system of rule by proconsul in Bosnia. 

When Israel acts in the Palestinian territories, it does so for its essential self-defense, an inherent right of states under the United Nations Charter. 

When European states act in Bosnia, they do so on the much murkier ground of knowing what’s good for Bosnia. 

The writer is a professor of constitutional and international law at George Mason University Scalia Law School, and a senior scholar at the Kohelet Policy Forum.