Dismantle Bosnia-Herzegovina’s judiciary
by Dana Levinson · The Washington TimesOPINION:
If ordinary Americans find it hard to imagine a world in which their elected leaders could be “tried by judges from random countries across the globe,” as Secretary of State Marco Rubio put it in a recent op-ed for The Wall Street Journal, they should look at a small European state that has lived in exactly that world for three decades.
While Washington launches a whole-of-government campaign to dismantle the International Criminal Court “brick by brick, if necessary” and reassert American sovereignty, it continues to support a legacy system of international courts and governance in Bosnia and Herzegovina (BiH).
BiH was long treated as an American peace-building project until the Trump administration came to power and began asking whether the project had run its course. It has, and now is the perfect time to get rid of it.
The 1995 Dayton Peace Agreement, brokered by American diplomats, ended 3½ years of war among Serbs, Croats and Bosniaks. It did so by freezing the fragile ethnic balance into two self-governing entities: the Serb-led Republika Srpska and the Federation of Bosnia and Herzegovina.
On top of that structure, Dayton placed a judiciary unlike any other.
Like the ICC, Bosnia’s judiciary is a child of the faith in international justice that defined the 1990s, a system of laws that Bosnians, to borrow Mr. Rubio’s words, “neither consent to nor control.”
The Constitutional Court of BiH, the final arbiter of the state’s basic law, has nine judges, three of whom are foreigners, drawn from across Europe. No Bosnian voter, parliament or presidency chooses them. They are selected by the president of the European Court of Human Rights, after consultation with the Bosnian presidency, but without ratification by any Bosnian parliament or voter.
No other European country allows one-third of its highest court (often the swing votes in its most explosive cases) to be chosen entirely outside its democratic institutions. A 1995 transitional measure has become a political instrument of European capitals.
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That is only the constitutional bench. One rung below sits the Court of Bosnia and Herzegovina. Unlike any court in the democratic world, it was born by decree. In 2000, the high representative, a European envoy answerable to no Bosnian institution, conjured it into existence with the stroke of a pen.
The high representative has been armed since 1997 with the so-called Bonn Powers: the authority to impose laws, rewrite the entities’ constitutions and strip elected officials of their offices. These powers are not found anywhere in the Dayton Accords.
Who selects this viceroy? The Peace Implementation Council, an informal consortium of countries that no Bosnian citizen has ever elected, or can recall or petition. The PIC picks Bosnia’s most powerful official; Bosnians cannot pick the PIC.
Americans got a preview of where such logic leads. In 2025, Milorad Dodik, the elected president of Republika Srpska, was convicted, fined and banned from office for six years. His offense was not corruption, violence or treason. Rather, he was punished for defying the high representative’s decrees and enacting laws to nullify them.
These were decrees issued by an unappointed foreigner, enforced by a court born of an earlier decree and upheld by Strasbourg-selected swing judges. A leader chosen by voters was removed for disobeying a man chosen by no one.
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Tellingly, the post is now without a permanent leader; the last High Representative resigned in May under American pressure, leaving the office under acting leadership while Washington and its European partners struggle to agree on a successor.
Mr. Rubio’s case against the ICC rests on a simple proposition: No free people should be governed, prosecuted or overruled by institutions they neither elect nor control. The Dayton constitution allows Bosnia’s parliament to change the process for selecting the three international judges.
The high representative’s mandate was always meant to expire. Closing the Office of the High Representative, retiring the Bonn Powers and completing the Constitutional Court with domestic judges would not jeopardize Dayton. It would finally fulfill it, returning Bosnia to what it was meant to be: a sovereign state responsible for its own successes and failures.
If the United States is serious about “sovereign states over globalism” being a principle, not merely a shield for its own officials, Bosnia is the test case sitting in plain sight. The administration dismantling the ICC should ask why a NATO-aspirant country still lives under a court blocked from being fully staffed by one of its own entities, an envoy it never approved and a council it cannot join.
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A Peace Implementation Council that Bosnians cannot pick has no more democratic warrant than a tribunal Americans never ratified. The principle either travels or it was never a principle at all.
• Dana Levinson is a political analyst focusing on international security, geopolitical influence and the politics of international institutions.