ii. Transfer of Entities’ Citizens – Decision of the Constitutional Court of BiH No. 5/98-

In the absence of such a provision in the Constitution of BiH, the citizenship argument was raised by the Government of the Republika Srpska in proceedings brought before the BiH Constitutional Court regarding the constitutionality of a number of provisions of the entity constitutions, including Article 6 paragraph 2 of the Constitution of the RS, prohibiting, according to the RS authorities, the extradition of RS citizens and therefore also preventing their transfer to the ICTY. The Constitutional Court, in Partial Decision U 5/98-I of 29 and 30 January 2000, without examining whether the obligation to surrender and transfer persons to the ICTY is covered by the term “extradition” or how otherwise these terms relate to each other, limited itself to stating that “[w] hatever the case may be, the wording of Article II.8 of the Constitution of BiH is quite clear and there can be no doubt that all competent authorities in Bosnia and Herzegovina, i.e., also the authorities of the Entities, have to comply with orders issued pursuant to Article 29 of the Statute of the Tribunal”²⁵⁰⁵ and that the responsibility for international and inter-Entity criminal law enforcement, of which the cooperation with the ICTY forms a part, falls, pursuant to Article II.1(g) of the Constitution of BiH, within the responsibilities of the institutions of BiH.²⁵⁰⁶ Accordingly, the Court declared Article 6 paragraph 2 of the Constitution of the RS unconstitutional. While the conclusion should be endorsed, it would however have been useful if the Court had defined the term of “compliance” with ICTY orders more clearly in so far as they relate to the transfer of persons in order to assist the legislature in developing appropriate legislation at the domestic level, particularly at the State level or, alternatively, if it had stated that such legislation may not be necessary given the relevant regulation of the Constitution.