11 March 2015
Part II: Political Impact

In July of 2013 the European Court of Human Rights (ECtHR) issued a ruling in the case Maktouf and Damjanovic vs. Bosnia and Herzegovina, concerning the non-retroactive application of criminal law to war crimes cases, which had tremendous negative consequences on post conflict justice efforts in Bosnia and Herzegovina (B-H). The case concerned two applicants (Maktouf and Damjanovic), convicted for war crimes against civilians committed during the 1992-1995 war in B-H, who successfully claimed that their sentencing violated Article 7 ECHR because the 2003 Bosnian Criminal Code was retroactively applied to them (the case is discussed in more detail in a previous Lancaster Law blog by Prof. James A. Sweeney, and in his recent journal on ‘Non-retroactivity, candour and transitional relativism’). This blog post will deal the political fallout from this case in B-H. My previous post examined the legal consequences.

The legal responses to the ECHR judgment, which included the release of prisoners and the reduction in sentences, caused an outrage on the side of the victims. This was particularly the case for those from Srebrenica, who were unable to see justice in the ECtHR decision and its application to grievous crimes, and perceived the whole spectacle as an organized effort to achieve amnesty for convicted war criminals. The reduction of their sentences was seen as a direct result of the ECtHR ruling. Some of the headlines in Bosnian press were: Victims bitter that war criminals are freed: Award for genocide (www.klix.ba, November 19 2013), Victims pack their suitcases and again flee from the Drina valley (Dnevni avaz, November 20, 2013). The international community also expressed strong reactions. The then UK Foreign Secretary, William Hague, said: “This is difficult to understand.” commenting on the release and calling for restraint from further decisions of this kind (text entitled Harsh reaction to the release of criminals, in the daily Dnevni avaz, November 22, 2013).

On the other hand, the strongest and most politically heated statements came from the majority Serb populated entity within B-H, Republika Srpska, calling the practice of the state judiciary discriminatory towards one people (Serbs) and calling for the abolition of the State Court and Prosecutor’s office as a whole, because of the “mistakenly applied” law of 2003. Some of the press titles were:

"The European Court of Human Rights in Strasbourg […] confirms the “rottenness” of the judicial system of Bosnia and Herzegovina, said the Acting Director of the Center for Research on War, War Crimes and Missing Persons of Republika Srpska Milorad Kojic (www.klix.ba, July 18, 2013);

The statement by BORS [Veterans’ Organization of Republika Srpska]. says that the Court of BH intentionally violates human rights, especially the rights of the Serbs, by applying in criminal trials the 2003 Criminal Code (www.klix.ba, July 18, 2013)

Will the Prosecutor’s Office of BH and the Court of BH to abolished now? (title in Dnevni list, August 2, 2013)

PDP [political party] seeks the abolition of the Court of BH (title in Oslobodjenje, September 20, 2013)."

Judges were held accountable in the media for their decisions to apply the 2003 Criminal Code of BH, which was an unprecedented pressure on their work. The dismissal of the President of the State Court was requested by the National Assembly of Republika Srpska.

Finally, two destructive political initiatives for legislative changes were launched, using the ECtHR judgment as a basis for their initiative. One proposal called for a change in the Criminal Procedure Code. The requested change would enable all persons tried before the State Court to get a retrial, without the condition of having a human rights violation found by either the ECtHR or Constitutional Court (as the existing Code stipulates). This would have rendered the extraordinary legal remedy of retrial an ordinary one and seriously undermine any legal certainty or trust in the finality of court decisions. The law was not passed, under strong pressure exerted by the international community present in B-H, but the proposal was supposedly based on an interpretation of the Maktouf and Damjanovic decision, which it was (wrongly) argued suggested that in all cases in which the 2003 Code was applied there would have been a violation of the principle of legality under the Convention.

The second initiative also argued to be in line with and based on the ECtHR decision. It was to change the Pardon Law of B-H so as to delete the existing provisions prohibiting pardon for offenses of war crimes, crimes against humanity and genocide. The proposal cites that the principle of non-retroactive application of criminal laws expressed in Maktouf and Damjanovic vs B-H, extends to the Law on Pardon adopted only in 2005. The proposal was also not passed but caused great concerns in terms of ensuring accountability.

What took place in B-H in the aftermath of the ECtHR decision has been identified by many as a legal error. However, one might find that the ECtHR’s decision clearly reflected a lack of understanding of the political climate in B-H and perhaps of international law itself. By not allowing for some ‘transitional relativism’, as James Sweeney would term it, it opened the door to “war crimes relativism”, a process which in modern day Europe resulted in revisiting penalties for war crimes which were deemed to be too harsh. The message sent to the B-H public was that principles of international law were negotiable. Convicted perpetrators who received fair trials and were convicted on the merits could achieve a form of amnesty by a subsequent reduction of their sentences years later.

Principles of international law were held hostage to the need to appease the strong internal opponents of the State judiciary so as to achieve political stability in today’s B-H. Judicial justice paid the price for this appeasement at the expense of the victims, appropriate sentences, and ultimately the goal of stability was also compromised. The work of the Court of B-H which held such promise was weakened considerably. It is unclear if the ECtHR was aware of the impact this decision would have or how it could be manipulated internally if not elaborated properly so as to advocate for accountability. What is clear is that the Strasbourg Court had a great responsibility not only to the accused but to the entirety of legal system in this post conflict country.