Juncture of Legal Cultures: The Experience in Bosnia and Herzegovina
By Judge Patricia Whalen
International Judge at the State Court of Bosnia and Herzegovina
Regional Conference of the International Association of Women Judges (IAWJ)
organized by the
Hungarian Association of Women Judges (HAWJ)
April 14-16, 2011
Thank you for this kind invitation by the Hungarian Association of Women Judges to participate in this Panel with such distinguished members. I am currently an international judge sitting in the Appeal Court at the State Court of Bosnia and Herzegovina. Prior to this appointment I was a member of the first instance trial court. In three years my panel completed 7 trials for crimes including genocide, crimes against humanity and war crimes against both civilians and prisoners of war.
The State Court of Bosnia and Herzegovina (BIH) is presently the busiest war crimes court in the world. As the previous presentation has shown the work of the court is based on a new hybrid criminal code which has elements of both adversarial and civil law systems. The current Criminal Code (CC) and Criminal Procedure Code (CPC) of BIH are firmly rooted in the law of the former Yugoslavia.
Yugoslavia was the signatory on the significant treaties we utilize in International Humanitarian Law (IHL) today. The law that has developed primarily after Nuremburg including, but not limited, to the treaty based law of the 1949 Geneva Conventions and their additional protocols, the Genocide Convention, the case law of the international tribunals and the development of international customary law are the cornerstones which make up International Humanitarian Law. The purpose of IHL is to limit the methods and means of warfare and to protect the victims of armed conflict. This law is not static, but is evolving every day to meet the challenges of contemporary conflict.
We, as global citizens, have a responsibility to these conflicts. Today I saw on the news videos of women in the Ivory Coast scurrying to get water amid the shooting. The scenes were identical to the videos taken during the siege of Sarajevo including in the background buildings damaged by the shooting. We may not be able to prevent this violence, but our justice systems must be ready to respond to the aftermath.
To answer why, I will tell you a story. One day a witness came into our court. He was a young man who had been mobilized in the conflict at the age of 18. It was his first week in the war and he was with his best friend. They came upon a scene where soldiers were playing games with a severed head. The commander ordered the two boys to bury the head. They did as they were ordered, but they knew these actions were somehow wrong. Not knowing what to do they decided to consult the wisest man they knew who happened to live nearby. He had been their first grade teacher. He asked the boys to bring him to the burial location which they did. He filmed the unearthing of the head and the subsequent reburial. He then told the young boys that today was not the day to tell anyone about this. He said he would keep the film until the day came when they would need to tell their story. The witness looked at the panel and said “Your Honors, today is that day.” For the many brave witnesses who have come before our court, we must be there to hear their stories.
The courts in BiH are in a unique position to contribute to the growing body of international law. The State Court of BiH is itself unique in many ways. It is interpreting and utilizing a new hybrid code. It is trying perpetrators in the country in which the crimes took place. Additionally, we are looking at the individual criminal responsibility for mid- and lower level accused for which there is little available case law. International tribunals are set up to try leaders of States and the most culpable and in theory the most egregious actors. The courts of BiH and the region are left with everyone else. Who gets charged and for what crime and by what mode of liability is the challenge facing our courts. To the extent this is done fairly, in a principled manner will determine how history will judge us. This is a tremendous responsibility as we are facing issues of individual criminal responsibility for which there is little guidance elsewhere in the law. It is not uncommon to find we are hearing legal issues for the first time in the history of IHL.
For the most part the interaction and compatibility of the theory of IHL and CC of BiH work well together. Specific articles of the Criminal Code of BiH invoke the use of international law and its principals and create an obligation on the State to punish international crimes pursuant to the law and its treaty obligations.
Article 2(1) of the CC of BiH states:
Basis and Limits of Criminal Justice Compulsion
Article 2
(1) Criminal offences and criminal sanctions shall be prescribed only for acts threatening or violating personal liberties and human rights, as well as other rights and social values guaranteed and protected by the Constitution of Bosnia and Herzegovina and international law in such a manner that their protection could not be realized without criminal justice compulsion.
(…)
Article 9(1) (c) of the CC of BiH states:
Applicability of Criminal Legislation of Bosnia and Herzegovina to Offences Perpetrated Outside the Territory of Bosnia and Herzegovina
Article 9
(1) The criminal legislation of Bosnia and Herzegovina shall apply to anyone who, outside of its territory, perpetrates:
(…)
c) A criminal offence which Bosnia and Herzegovina is bound to punish according to the provisions of international law and international treaties or intergovernmental agreements;
(…)
Chapter 17 of the Criminal Code of BiH is in fact entitled “Crimes against humanity and values protected by international law”. It explicitly invokes the use and interpretation of international law. Crimes of genocide, crimes against humanity, war crimes against prisoners of war, and civilians, are all interpreted pursuant to principles of international law and governed by the individual criminal responsibility modes of liability codified in Article 180 of CC of BiH. This article also allows for the legal responsibility for third party liability for these crimes under the doctrine of command responsibility.
Article 180 of the CC of BiH states:
Individual and Command Responsibility
Article 180
(1) A person who planned, ordered, perpetrated or otherwise aided and abetted in the planning, preparation or execution of a criminal offence referred to in Article 171 (Genocide), 172 (Crimes against Humanity), 173 (War Crimes against Civilians), 174 (War Crimes against the Wounded and Sick), 175 (War Crimes against Prisoners of War), 177 (Unlawful Killing or Wounding of the Enemy), 178 (Marauding the Killed and Wounded at the Battlefield) and 179 (Violating the Laws and Practices of Warfare) of this Code, shall be guilty of the criminal offence. The official position of any individual, whether as Head of State or Government or as a responsible Government official person, shall not relieve such person of culpability nor mitigate punishment.
(2) The fact that any of the criminal offences referred to in Article 171 through 175 and Article 177 through 179 of this Code was perpetrated by a subordinate does not relieve his superior of culpability if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.
(3) The fact that a person acted pursuant to an order of a Government or of a superior shall not relieve him of culpability, but may be considered in mitigation of punishment if the court determines that justice so requires.
The crime of Genocide for example is defined in the same manner as the ICTY statute thus providing an important and useful background of case law looking at this issue. These cases help clarify the legal elements of the crime as well as giving us specific applications and interpretation of various provisions.
However, we are not without problems. For example, look at Crimes against Humanity Article 172(1) (h) and 172(2)(g).
Article 172(1)(h) of CC of BiH states:
Persecutions against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or sexual gender or other grounds that are universally recognized as impermissible under international law, in connection with any offence listed in this paragraph of this Code, any offence listed in this Code or any offence falling under the competence of the Court of Bosnia and Herzegovina
Article 172(2)(g) of CC of BiH states:
Persecution means the intentional and severe deprivation of fundamental rights, contrary to international law, by reason of the identity of a group or collectivity.
The legal basis necessary to prove the crime of persecution is arguably broader in BiH than the application of customary international law would allow in 1992. Due to the principle of legality we rely instead on the case law developed at the ICTY. The ICTY has found that under international customary law the acceptable grounds for finding discrimination for the crime of persecution at the time of the conflict in BiH is limited to only 3 grounds: political, racial, and religious. The State Court of BiH has decisions which equate race with ethnicity.
We also face problems when the code is more restrictive. Some provisions of the Codes are not necessarily in harmony with basic principles of international law. For example, look at the definition in Article 172(1) (g) of CC of BiH requiring force or threat of force in sexual violence cases:
Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape), sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity;
Proof of lack of consent is not a necessary element in international law. In international case law we have the prevailing view that the circumstances of war are themselves coercive. Cases in BiH have then applied this interpretation to find the requirements of the CC of BiH have therefore been satisfied and there is no further need to prove force.
Jurists can disagree about the legal interpretation and analysis of these various decisions. This represents a healthy debate and reflects on the future health of the BiH legal system and the independence of its judiciary.
All legal systems evolve. Systems that do not allow for growth or change to reflect the growing awareness and understanding of human rights and what it takes to achieve justice are doomed to fail. These systems will lose the respect of the people they are meant to serve. Without this inherent respect you can not have a rule of law. The legal system in BiH is growing and adapting. It is not without its growing pains. It still does not provide for published written dissents. This is a necessary element to assure an independent judiciary. There is tension between the elements and tenants of each legal system and this can create problems which prevent meaningful harmonization. This is especially true in the area of verdicts. In the BiH system great weight is given to highly technical requirements in the operative part of the verdict. This reliance is difficult for adversarial trained judges who place the emphasis on the reasoning and analysis contained in the judgment.
In this respect, I personally believe the reasoning part of the verdict is going to assume a place of greater significance in the jurisprudence of BiH. The public demands and the people have a right to understand our decisions. Our decisions need to be based on the law, whether domestic or international, and not seen as arbitrary acts by politically biased judges. The only way to assure citizens both at home and globally that these decisions are based on the law is through the reasoning part of the verdict. Our decisions must be seen to be inherently fair and principled. Our trials and verdicts must show the accused who come before us have clear notice of the charge, have an opportunity to be heard, and have his or her case decided by impartial decision-makers based on the evidence on the record with clear legal reasoning. These legal values are embraced by both legal traditions.
We live in interesting times. The political pressures on the judiciary in BiH are enormous. The public still does not understand what courts actually do. Politicians who do not support strong state wide institutions or value the rule of law are working to destroy the Court.
By using and integrating the principles of international law into the domestic system we support the underpinnings of the domestic law. Today in BiH this is a work in progress but I believe strongly it is a work the country and people of Bosnia and Herzegovina can be proud of.
Thank you for giving us today this opportunity to share the work of our court.
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