The new Draft Constitution, passed by the National Assembly of Republika Srpska on March 13, 2025, represents the culmination of the tensions between the sub-national entity and the central government of Bosnia and Herzegovina (BiH). The Draft Constitution is more than an attempt to shield Republika Srpska President Milorad Dodik from criminal responsibility in light of his active arrest warrant. Rather, the sweeping changes introduced in the Draft Constitution mark one of the most drastic attempts to date to use legal reform to defy the constitutional order and institutions of BiH. While many of the proposed changes are unlikely to withstand review by the BiH Constitutional Court, halting the current constitutional erosion will not be enough. Long-standing nationalist and secessionist narratives must be countered by seriously addressing backsliding in the rule of law and human rights, but also by rethinking the current constitutional structure of BiH against the background of an ongoing climate of political instability and polarization, and contestations of the legitimacy of the High Representative’s (HR) parallel legislative powers.

Background: constitutional framework of BiH and the Dayton Peace Agreement

In 1995, the Bosnian war was ended with the signature of the Dayton Peace Agreement. The Agreement establishes the political structure of Bosnia and Herzegovina (BiH) divided into two administrative entities, the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS), alongside the self-governing Brčko District, entrenching a division along broadly ethnic lines. Each of the three have their own local constitution, with the central state Constitution of BiH at the top of the national hierarchy of norms. The current Constitution of RS includes several amendments mandated by the High Representative (HR), an official appointed from outside of BiH by the Peace Implementation Council, tasked with overseeing the implementation of the Dayton Agreement and for that purpose equipped with legislative powers, allowing him to bypass law-makers at all levels of government.

Though the HR and his legislative powers have been criticized from different sides, one of his fiercest critics is nationalist Serb politician and President of RS Milorad Dodik. In 2023, Milorad Dodik refused to follow the HR’s orders to strike down RS laws mandating the non-application of decisions of the HR and the BiH Constitutional Court. On February 26 2025, the Sarajevo court found Dodik guilty of failing to implement HR decisions (Art 203 a (1) of the Criminal Code of BiH, introduced in 2023 by the HR). Dodik was sentenced to one year in jail and barred from holding the office of RS President for six years. Since then, the National Assembly of RS has passed several laws, banning the state-level prosecution and court, the State Investigation and Protection Agency, and the High Judicial and Prosecutorial Council from exercising jurisdiction in RS.

The Draft Constitution, adopted alongside the draft “Law on the Protection of the Constitutional Order of RS”, is the most significant of these legislative proposals. It was passed on March 13, with only two hours of notification given to the National Assembly, and after opposition politicians were expelled from the assembly after a verbal altercation. The Draft Constitution is now subject to a 30-day public consultation period, after which it needs to be adopted by the House of Peoples of RS.

Given the Draft Constitution’s many tensions with the national BiH Constitution, it seems likely that the BiH Constitutional Court will follow requests to suspend it. The Constitutional Court has already suspended several of the other recently passed laws banning official state institutions from RS. However, RS leadership has made its intention to ignore judgements of BiH state-level courts clear on several occasions, and plans to apply the novel laws regardless.

In light of these developments, the Draft Constitution represents the consolidation of years-long institutional power struggles, pushes for secession, and attempts to weaken political opposition.

Symbols and semantics

The first thing that catches the reader’s eye when paging through the new Draft Constitution is a shift towards a new vocabulary of sovereignty and Serbian identity.

The changed preamble to the Draft Constitution introduces several references to Serbian history, including to the “historical continuity of the medieval statehood of countries lead by the dynasties of Nemanjić, Kotromanić and others”. The Draft further approximates RS with the neighbouring country of Serbia by establishing that at official events, after playing the RS anthem, the “festive song” Bože Pravde (Oh God of Justice) is to be played (Art 13(3)). Bože Pravde is the official anthem of Serbia. This comes one month after an attempt to reintroduce the anthem of Bože Pravde and the emblem of the Nemanjić dynasty as official symbols of RS through an amendment of the RS Emblem Law, since suspended by the BiH Constitutional Court.

Words more commonly associated with the Bosnian and Croatian variants of the shared (but politically distinguished) language(s), though mutually intelligible, have been replaced with terms more commonly used in the Serbian variant, for instance switching from “jamčiti”, to guarantee, to “garantovati”. Similarly, while the Draft Constitution maintains all three official languages, Article 12 (1) seemingly challenges their equality by distinctly referring only to Serbian as the “Serbian language”, and to Bosnian and Croatian as “the language of the Bosnian/Croatian peoples”. These adjustments most likely do not affect the actual meaning of the constitutional text; they are cosmetic changes which read as an attempt to reinforce a sense of Serbian identity above a shared national one, while simultaneously minimizing the identities of BiH’s other constitutive peoples and languages.

Other changes are more substantial. Despite retaining formal protections against non-discrimination, the Draft deletes all references to the constitutive peoples of BiH, Bosniaks, Croats and Serbs, anchored firmly in the Dayton Agreement as well as current RS Constitution. Instead, it speaks simply of “Serbs and others”. Most drastically, it abolishes the institution of the House of Peoples (Vijeće Naroda), the chamber of the RS parliament tasked with protecting the interests of all three constitutive peoples, as well as ethnic minorities. Under the current RS Constitution, any new law or constitutional amendment needs to be approved by both the National Assembly and the House of Peoples, in which each of the groups holds a veto power to protect vital national interests. The Draft Constitution similarly abandons all requirements of balanced ethnic representation of the constitutive peoples in the official functions of the RS government. Through these two changes, the Draft Constitution scraps the constitutional safeguard protecting the interests of all non-Serbian ethnic groups, which constitute a minority in both RS as a whole and the National Assembly of RS.

Toward political and military sovereignty

The Draft Constitution introduces multiple sweeping changes towards greater political and economic sovereignty of RS. RS is declared “sovereign” (Arts 1, 2, 5, 76, 115), the term entity, as contained in the Dayton Agreement, is replaced with the words subject (Art 1) and even country (“država”, Art 3). More concretely, the Draft gives RS powers to conclude international agreements (Art 79 (15)), to enter into military alliances (Art 115 (2)), and declares that RS has its own army (Art 116). While the establishment of an army might seem far-fetched at this point, the government of RS announced on March 17 that it would reestablish its own border police to patrol the borders of RS, including the inner-BiH border dividing RS and FBiH. While between 1996 and 2000 the regular police force of RS controlled the entity’s borders, in 2000 a HR established a shared border police force with an exclusive mandate at the national level.

The President of RS gains additional powers, including an extension of his term from four to five years (Art 93), and most importantly full civil and criminal immunity for the duration of his term (Art 97), a change which could be read as a direct response to Dodik’s guilty verdict and arrest warrant of less than a month ago.

The Draft further revises provisions on public property, with Article 10 granting RS full sovereignty over its resources, contrary to a 2024 ruling of the BiH Constitutional Court, which had found such property to be under the exclusive jurisdiction of the central government. Overall, these changes can be read as an open rejection of the authority of the central BiH government, and the culmination of a years-long power struggle between Sarajevo and Banja Luka, and RS leadership and the HR. Many of the proposals may seem unfeasible and in conflict with the BiH Constitution. Still, conjuring up the image of an independent army and international military alliances further stirs anxieties about potential conflict, which have built up ever since Dodik announced his intentions to defy his prison sentence and further undermine the official institutions of Bosnia and Herzegovina.

Curtailing rights, shrinking spaces

The Draft Constitution introduces several provisions which in combination limit the space for civil society actors and political opposition within RS. The first is a rather inconspicuous adjustment to Article 31, which adds several grounds of limitation of the freedom of thought and speech, including the protection of the territorial integrity of RS, the prevention of disorder, and the protection of health or morals. The Draft further restricts the work of non-governmental organizations and individual actors, echoing the recently introduced controversial Foreign Agents Law, which requires special registration of all non-governmental organizations receiving funding from outside BiH, similar to laws in Russia, Georgia and Greece. Article 37 of the Draft Constitution goes a step further, stating that “the activities of organizations and individuals financed from abroad are allowed only under conditions established by law”.

The Draft also explicitly prohibits defamation, which could further diminish the already shrinking space for civil society. In 2023, RS introduced the Law on Protection against Defamation, which re-criminalized defamation in RS 22 years after it had been decriminalized across BiH. This change, widely criticized as opening the floodgates of SLAPP suits against journalists, activists and politicians, is now backed by the introduction of Article 32 (5) in the Draft Constitution prohibiting “the publication of untruths in the press and other channels of public information, which could result in damage to the honour or reputation of others”.

Last, but certainly not least, the new Draft amends the provision on the protection of family life, defining marriage, a term left undefined by the current Constitution, as a “union between a man and a woman”. Although same-sex marriage has not been legalized in BiH either at the national or the entity level, discussions around its legalization in the FBiH have reignited several times over the past few years. Changes in the FBiH would not affect the status of same-sex marriage in RS. The changed definition is therefore not a response to any actual legislative developments, but primarily an additional obstacle in the way of future reform. It follows in line with past proposals to prohibit LGBTQIA* organizations from visiting educational institutions, and remove explicit protections against discrimination based on gender identity from the RS criminal code.

In combination, these changes could be used to undermine not only the rights of minorities, but the very ability of civil society to organize, by limiting their possibilities to raise funds and voice critical opinions.

The way forward

With a new nation-wide arrest warrant issued for Milorad Dodik, calls for further EU sanctions, and a likely suspension of the Draft Constitution by the BiH Constitutional Court, the above may seem like a last attempt at political provocation and intimidation, rather than a genuine legislative reform. In fact, Dodik himself has described the unfolding events as a “Game of Thrones”.

Yet, many changes introduced in the Draft Constitution are in no way fresh ideas. They build upon numerous previous reforms passed over the past years criticised for undermining the rule of law and human rights in RS. Similarly, the House of Peoples, tasked with safeguarding the interests of different ethnic groups, already did not work as intended before the Draft Constitution sought to abolish it, as individuals were able to legally change their ethnic identity to fulfil formal quotas.

While the current crisis has drawn international scrutiny on Dodik’s government, the removal of the most radical voices from the leadership of RS will in itself likely not be enough to resolve these longstanding issues. Halting the further erosion requires seriously addressing setbacks in the rule of law and human rights. However, it also demands taking seriously concerns over the entrenchment of ethnic divisions in the constitutional structure of BiH, and the shaky legitimacy of the HR’s parallel legislative powers. “Back to normal” is neither realistic nor desirable, and a strong alternative vision is needed to counter nationalist and secessionist narratives.

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