The BiH War Crimes Chamber and the laws applicable to war crimes trials in BiH
The War Crimes Chamber of Bosnia-Herzegovina (WCC) has been generally considered as a successful effort to prosecute crimes committed during the conflict in the former Yugoslavia at the domestic level (see, in this regard, reports from OSCE and ICTJ). The WCC closely cooperates with the ICTY and received most of the cases transferred by the Hague Tribunal to domestic jurisdiction as part of its completion strategy; it is established within the Court of BiH and is a wholly domestic institution. As such, its work falls under the review of the European Court of Human Rights (ECtHR), which in a Judgment by the Grand Chamber in Maktouf-Damjanović vs. Bosnia-Herzegovina issued in July 2013 found that the WCC had violated Art. 7 of the ECHR in connection with the convictions of the applicants due to the retroactive application of criminal legislation in their war crimes cases. This post will underline some serious problems related to the interpretation of this Judgment and to its implementation by the WCC with regard to the processing of future cases and the re-opening of adjudicated cases which may be deemed to fall under the Judgment’s scope.
In order to understand the content and relevance of Maktouf-Damjanović it is necessary to briefly outline the substantial criminal laws applied in atrocity crimes proceedings held in BiH. The 1976 Criminal Code of the former Socialist Federal Republic of Yugoslavia (SFRY CC) was in force throughout the 1992-1995 conflict. Under this Code, war crimes and genocide could be punished with imprisonment from a minimum of 5 years (1 year in case of extraordinary mitigating circumstances) to a maximum of 15 years or, in the most serious cases, with the death penalty, which could be commuted to 20 years imprisonment. This Code has been and is still generally applied by courts at the entity level in war crimes cases; since the death penalty is not anymore applicable in BiH after the 1995 Dayton Agreement, these courts have been imposing sentences up to 15 years for war crimes. In 2003 this legal framework changed as the Office of the High Representative (OHR) imposed a Criminal Code at the State level (BiH CC) which punishes war crimes, genocide and crimes against humanity with imprisonment from a minimum of 10 years (5 years in case of extraordinary mitigating circumstances) to a maximum of 45 years. This Code has been applied in the overwhelming majority of cases processed by the WCC. Since the beginning, however, the lawfulness of its application by the WCC has been a matter of intense legal discussion and controversy at the political level, to the extent of becoming one of the issues at the center of the EU-BiH Structured Dialogue on Justice. (more…)