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.
The legal arguments against the application of the BiH CC in place of the SFRY CC rely on the observance of the nullum crimem, nulla poena sine lege and lex mitior principles. Under these rules, the substantial law in force at the time of the commission of the crime has to be applied unless it is possible to enforce a subsequent law which is more lenient to the defendant. Accordingly, the SFRY CC should be applied with the exclusion of the death penalty which, as already mentioned, was abolished in 1995. On the other hand the WCC has alternatively relied on two arguments to reason its compliance with national and international law: (a) the BiH CC is retroactively applicable as being more lenient then the SFRY CC since it does not foresee the death penalty, which at the time of the commission of the crime was still applicable; (b) the application of the BiH CC can be justified as an exception to the principle of legality under Art. 7(2) of the ECHR.
The Maktouf-Damjanović Judgment: what is its scope?
Maktouf-Damjanović addresses this legal dispute, although, as I will explain, only in part. The first applicant was convicted in 2006 to 5 years of imprisonment for taking of hostages as a war crime. The second applicant was convicted in 2007 to 11 years for torture as a war crime. In both cases, the WCC applied the BiH CC. The Grand Chamber underlined that the applicants had received sentences fitting within the lower range of punishment foreseen under the BiH CC. It held, therefore, that in these specific cases, “there exists a real possibility that the retroactive application of the 2003 Code operated to the applicants’ disadvantage” (para. 70) since the applicants could have received lower sentences had the sentencing provisions of the SFRY CC been applied. Accordingly it found that the applicants’ rights under Art. 7 had been violated since “it cannot be said that they were afforded effective safeguards against the imposition of a heavier penalty” (ibidem).
The Judgment dismissed BiH’s argument mentioned above under (a) as not relevant in the instant case since the death penalty was applicable under the SFRY CC only in relation to the most serious instances of war crimes, whereas the two applicants did not belong to this category of perpetrators (see para. 69). As to argument (b), the Grand Chamber held that from a reading of the travaux préparatoires on Art. 7(2) it is “clear that the drafters of the Convention did not intend to allow for any general exception to the rule of non-retroactivity” (see para. 72).
The application of this Judgment in relation to other war crimes cases with sentences fitting in the lower range of punishment is not controversial. As recognized by the Grand Chamber (see para. 29), the WCC in 2009 changed its initial jurisprudence and started applying the SFRY CC in the, indeed limited, number of cases belonging to that category. The rest of this post deals instead with the significance of Maktouf-Damjanović in relation to the very high number of sentences above 15 years of imprisonment imposed by the WCC under the BiH CC. Since this category of sentences belongs to the higher range of punishment, the Judgment does not explicitly address their legality. This issue, on the other hand, presents complex legal problems and is a challenge to the effectiveness and credibility of war crimes trials in BiH.
Problems affecting the implementation of Maktouf-Damjanović
Uncertainty in the definition of the Judgment’s scope is manifest in the opposite stances taken by the WCC and the Constitutional Court of BiH on this matter. The former declared in a press release that the ECtHR Judgment implies that “when it comes to more serious forms of war crimes, the application of the 2003 Criminal Code is not in contravention of the Convention”. The latter, on 24 October 2013, interpreting the same Judgment, overturned ten WCC’s judgments, including at least one carrying genocide convictions with sentences above 30 years and ordered the WCC to apply the SFRY CC in all these cases. While the Constitutional Court’s sweeping interpretation of Maktouf-Damjanović can be praised as being cautious and an expression of favor rei, it is nevertheless questionable from the point of view of compliance with generally recognized rationales and principles in sentencing. Punishing perpetrators of multiple and serious violations of human rights with sentences not exceeding 15 years, as foreseen under the SFRY CC, may be considered as inconsistent with the principles of proportionality, parity and the purpose of deterrence. Admittedly, the precise content of these principles is ill-defined and needs to be flexibly understood. On the other hand, it is difficult to deny that manifest disparity between sentences up to 45 years for the murder of a human being in time of peace and much more lenient ones for the same conduct as war crime or genocide sends a clear message to the society; namely that crimes committed during a conflict are less serious and more forgivable then those committed in ordinary times.
An extensive interpretation of Maktouf-Damjanović clashes with basic concepts of justice and fairness also for another reason: while the Judgment may apply to serious war crimes and genocide cases, it expressly does not affect sentences for crimes against humanity. In Maktouf-Damjanović the Grand Chamber referred to and upheld a previous Decision on Admissibility (Simsić vs. BiH) stating that the conviction of the applicant to 14 years of imprisonment for crimes against humanity under the BiH CC was not in violation of Art. 7. While this category of crimes was clearly prescribed under international law at the time of the conflict in BiH, it was not foreseen under the SFRY CC. Distinguishing Simsić from Maktouf-Damjanović, the Grand Chamber agreed that in crimes against humanity cases the WCC has “no other option but to apply the 2003 Criminal Code” (see para 55). This is a sound conclusion; it however has the disturbing consequence of subjecting those convicted for crimes against humanity to sentences up to 45 years under the BiH CC, while leaving those convicted for war crimes and genocide under the more favorable SFRY CC sentencing regime. The prevailing view in international law is that, for the purpose of sentencing, there is no hierarchy among atrocity crimes. The combined effect of Simsić and Maktouf-Damjanović therefore results in an unequal and illogical sentencing policy which discriminates those convicted for crimes against humanity.
Lastly, it is worth pointing out that the Grand Chamber’s Judgment deals with the complex and multifaceted notions of nullum crimem, nulla poena sine lege and lex mitior, the status and application of which are still unsettled issues in international law, particularly in connection with international crimes. In this regard, it may suffice to mention that the ECtHR case-law until 2010 constantly held Art. 7(2) to be an exception to its first paragraph in connection with the trial and punishment of individuals for acts which , at the time of their commission, were criminal according to general principles of law (see Naletilić vs. Croatia of 2000 and Kolk and Kislyiy vs. Estonia of 2006). With the 2010 Grand Chamber’s Judgment in Kononov vs Latvia, the Court changed its understanding of Art. 7(2) in the opposite direction reflected in Maktouf-Damjanović. Furthermore, it is only in 2009 that the ECtHR held, in Scoppola vs. Italy, that the right of an offender to application of a more favorable criminal law (lex mitior principle) was protected under Art. 7(1). Before that Judgment, the Court had constantly excluded that Art. 7 could afford that right.
Against this background of unsettled rules, rapidly evolving case-law and clashes between basic principles of law such as nulla poena sine lege and lex mitior on the one hand and fairness of sentencing on the other, BiH judicial institutions will surely have a difficult task in implementing Maktouf-Damjanović. In such context one would have hoped for more guidance by the ECtHR with regard to the compatibility of sentences fitting in the higher range of punishment with Art. 7. This is perhaps one of those cases in which obiter dicta would have been precious if not necessary.