<<previous  |  index  |  next>>

X. Law Harmonization/Use of International Precedent

A. Law harmonization

The Criminal Code of Bosnia and Herzegovina, created in 2003, contains numerous provisions for the prosecution of war crimes, crimes against humanity, and genocide. It also contains provisions for prosecuting under theories of command responsibility that are broader and more explicit than previous criminal codes.²⁰⁴ Trials at cantonal and district courts for crimes committed during the war, however, are generally conducted under the criminal code of the former Socialist Federal Republic of Yugoslavia (SFRY). This fact raises several legal questions that can undercut the ability of cantonal and district courts to try these types of cases fairly.

The determination of which criminal code should be applied by entity courts has been the source of some confusion and disagreement. While some people involved in the creation of the 2003 Bosnian Criminal Code believed that it would be applied in cases at entity courts involving war crimes, crimes against humanity, or genocide, others believed that it would not due to questions of retroactive application of the law to crimes committed before its enactment.²⁰⁵ The new state-level criminal code seemingly anticipated these objections under article 3(2), which holds, “No punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated, has not been defined as a criminal offence by law or international law, and for which a punishment has not been prescribed by law.”²⁰⁶

Thus, application of the new criminal code does not violate the ban on retroactivity since most war crimes, crimes against humanity, and genocide were considered violations of customary international law before the start of the conflict in the former Yugoslavia. This exception in the new code mirrors that in the European Convention on Human Rights.²⁰⁷ Additionally, many of these crimes were recognized as such by the domestic law at the time.²⁰⁸ Despite this, most cantonal and district courts apply the SFRY criminal code in these cases.

One of the most striking and controversial results of this is that defendants face significantly different sentencing ranges for similar crimes depending on whether they face trial before the Court of Bosnia and Herzegovina or before the cantonal or district courts. The SFRY criminal code, as written, permits the death penalty, but as this has been abolished in Bosnia, the courts in the Federation and in Republika Srpska allow punishments as high as 20 years’ imprisonment, which was the second most severe punishment allowed under the SFRY code.²⁰⁹ At the State Court, by contrast, defendants charged with similar crimes may face up to 45 years’ imprisonment.²¹⁰ This is especially troubling since the decision as to whether a defendant faces trial before the State Court or an entity court is not a judicial determination subject to appeal, but rather a decision made by an individual state prosecutor based on the “sensitivity” of the case.

This disparity in punishment is cited by those who support the application of the SFRY criminal code for trials dealing with crimes committed during the war. According to this view, the Bosnian Criminal Code, as well as the European Convention on Human Rights, prohibits the retroactive application of a punishment more severe than that in force at the time that a crime was committed.²¹¹ Defendants before the State Court have protested this disparity in sentencing through hunger strikes.²¹²

This issue was recently addressed by the Constitutional Court of Bosnia and Herzegovina, which upheld the legality of applying the Bosnian Criminal Code in cases dealing with crimes committed during the war. In the Maktouf decision, the Constitutional Court noted that the ICTY has also imposed long-term prison sentences that would not be allowed under the SFRY criminal code.²¹³ Additionally, the Constitutional Court disputed the claim that the SFRY code was more lenient, since at the time the crimes were committed, it permitted the death penalty.²¹⁴ The thrust of the Constitutional Court’s judgment was that the application of the new Bosnian Criminal Code to crimes from the war fell under the exception to the ban on retroactivity in article 7 of the European Convention on Human Rights for crimes that were proscribed under customary international law when committed.²¹⁵

In the same case, the Constitutional Court also states that the application of different criminal sanctions to similar crimes by the state and entity courts may constitute illegal discrimination. The Constitutional Court, therefore, urged the cantonal and district courts to apply the Bosnian Criminal Code.²¹⁶ Several State Court officials echoed this in interviews with Human Rights Watch, citing the Maktouf case to support the application of the Bosnian Criminal Code by all courts in Bosnia dealing with crimes under international law.²¹⁷ This argument mirrors those of supporters of the use of the SFRY code but draws the opposite conclusion.

Even people who do not necessarily support the use of the state criminal code acknowledge that the lack of law harmonization is a problem.²¹⁸ One cantonal official noted that at a public forum on the topic of prosecuting crimes committed during the war, people in attendance noted law harmonization as a principal concern.²¹⁹

Even apart from the disparities in sentencing noted above, the lack of law harmonization also presents practical difficulties in the prosecution of international law crimes. One SIPA official explained that the different legal requirements in various jurisdictions made it more difficult to conduct investigations, since the code ultimately used in a case can affect the definition of the crime charged and, therefore, what proof is required.²²⁰ One State Court official noted that the lack of law harmonization complicated the process of case review at the state prosecutor’s office, since prosecutors had to consider whether the crimes would be covered under the law of the jurisdiction receiving the referral.²²¹

B. Failure to follow international precedent

In addition to the lack of law harmonization between the entity court systems and between those judicial systems and the State Court, the failure of many cantonal and district courts to follow international precedent threatens to further fragment the Bosnian legal system. In many cases, cantonal and district court decisions do not even mention relevant ICTY verdicts. This has resulted in several decisions that are significantly out of line with international precedent. Prosecutors, defense attorneys, and judges need to take steps to bring their work in line with existing international jurisprudence.

One key area of concern is cases that deal with command responsibility.²²² State Court officials questioned whether the entity courts even acknowledge the validity of this important legal concept.²²³ As a result, cases that may involve this legal theory tend to be treated as highly sensitive and tried at the State Court.²²⁴

A notable example of this problem is the Čupina case. In 2001, Mirsad Čupina was found guilty by the Mostar Cantonal Court of war crimes against prisoners of war, a violation of article 144 of the SFRY criminal code. As director of a prison, he was aware that prisoners were beaten and forced to undertake hazardous work, such as digging trenches, but did nothing to stop it. The Mostar court found that although the SFRY code technically covers only those who order or commit the offenses, it should also be read to cover the failure to prevent those same offenses, consistent with an understanding of the international law concept of command responsibility.²²⁵ However, at a second trial, ordered by the Federation Supreme Court, the Mostar Cantonal Court ruled to the contrary and found that no punishment could be given for a failure to act under the SFRY code. While the second ruling left open the possibility that a case could be brought under some other law that acknowledges command responsibility, this judgment’s narrow interpretation of the war crimes provisions of the SFRY code effectively forecloses the prospect of finding such liability under this law.²²⁶

The failure to follow international precedent has also resulted in other problematic legal findings. In several cases in Mostar Cantonal Court, it has been held that the existence of stressful wartime conditions when crimes were committed can be a mitigating circumstance to the commission of war crimes and justify a lower sentence.²²⁷ The court, in justifying a reduced sentence in one such case regarding a person convicted of abusing prisoners, reasoned that the existence of “circumstances at the time which were very difficult and which impacted on the behavior of people as a whole in the most basic interactions … must have also impacted the accused, in that they decreased the level of acceptable behavior in the accused, and therefore acceptable behavior towards the prisoners of war and imprisoned civilians.”²²⁸

As the ICTY has pointed out, this line of reasoning risks undermining the very concept of the proscription of war crimes, since it is precisely during such war circumstances that the laws of war are meant to protect prisoners from abuse.²²⁹ Despite this, the Supreme Court of the Federation of Bosnia and Herzegovina neither challenged this mitigating factor nor made any reference to ICTY precedent to the contrary.²³⁰

Also in these verdicts, the Mostar Cantonal Court accepted the length of time between the commission of war crimes and their trial as a mitigating factor.²³¹ In at least two cases, courts noted that the “normalization” of life in Bosnia in the years since the war justified a reduced sentence.²³² This is also contrary to the precedent of the ICTY, which noted that the passage of time cannot be a mitigating factor for offenses such as war crimes, which for that reason have no statute of limitations.²³³ However, the Federation Supreme Court made no reference to ICTY precedent in ruling on these cases on appeal.²³⁴

C. Proper classification of crimes in violation of international law

In several cases, older indictments classified crimes committed during the war as crimes under ordinary criminal law, such as murder or rape, rather than as war crimes, crimes against humanity, or genocide. In at least two cases originating in Banja Luka district, charges were amended to reflect the international nature of these crimes in recent years.²³⁵ In interviews, prosecutors in Republika Srpska assured Human Rights Watch that future indictments would reflect the international law character of crimes committed during the war.²³⁶ Prosecutors in the Federation also had problems with early indictments being brought under domestic law but have likewise taken steps to correct this.²³⁷

D. Importance of a consistent legal approach to cases

Even many years after the end of the war in Bosnia, Bosnia remains a divided society in many ways. Crimes committed during the war continue to be viewed differently in different communities, and it is often exceptionally difficult for people to accept or acknowledge that crimes were committed by their own ethnic group. The lack of law harmonization and the failure of the courts to apply the law as understood internationally have a detrimental impact on this. Verdicts that call for exceptionally lenient, or exceptionally harsh, sentences on legally dubious grounds feed suspicions of political bias in the judiciary. This lack of faith in the fairness of the justice system can undermine Bosnia’s path to recovery and political normalization.