A decision of the court of second instance in the trial of Republic of Srpska President Milorad Dodik is due this week. President Dodik is accused of violating a decree by the German politician Christian Schmidt that criminalizes failure to implement an order of the High Representative. Mr. Schmidt claims the title of High Representative, but his appointment to the position was never approved by the UN Security Council, as the Dayton Agreement requires.
The court need not decide whether Mr. Schmidt was properly appointed, nor whether the power to decree laws claimed by Mr. Schmidt and a number of his predecessors is legitimate.
Rather, the court must decide that whatever power and authority any High Representative may have, and whatever power and authority Mr. Schmidt may have, that power and authority would have to be limited to civil and administrative matters only, not to matters implicating criminal liability. This is evident from the very limited mandate given to the High Representative in Annex 10 of the Dayton Agreement.
The imposition of criminal liability implicates human and civil rights set out in numerous international conventions and treaties, and it is entirely without question that any imposition of penalties that would deprive an individual of liberty and property must be approved by a legitimate democratic authority, namely the Parliamentary Assembly.
The court should dismiss the misguided, political prosecution of President Dodik on this basis alone.
