Prof Milan Blagojevic, phd - UNCONSTITUTIONAL RECTROACTIVE IMPLEMENTATION OF INCRIMINATION CRIMES... by petrovac

Professor Milan Blagojevic, PhD Unconstitutional retroactive implementation of incrimination crimes against humanity in practice of the Court of Bosnia and Herzegovina Second, revised edition

CIP - Каталогизација у публикацији Народна и универзитетска библиотека Републике Српске, Бања Лука 343.4(497.6) 341.48/.49 БЛАГОЈЕВИЋ, Милан, 1965Неуставна ретроактивна примјена инкриминације злочини против човјечности у пракси суда Босне и Херцеговине : (поремећена прецедентизација права) / Милан Благојевић ; [превод на енглески Лидија Дангубић]. - 2. допуњено изд. - Бања Лука : ЈУ Службени гласник Републике Српске : Српско просвјетно и културно друштво Просвјета, Градски одбор Бања Лука, 2015 (Бања Лука : ЈУ Службени гласник Републике Српске). - 182, 182 стр. : слика аутора ; 21 cm Насл. стр. приштампаног превода: Unconstitutional Retroactive Implementation of Incrimination Crimes Against Humanity in Practice of the Court of Bosnia and Herzegovina. - Оба текста штампана у међусобно обрнутим смјеровима. - Тираж 150. - О аутору: стр. 181-182. - Напомене и библиографске референце уз текст. - Библиографија: стр. 161-163. ISBN 978-99938-22-50-9 COBISS.RS-ID 4843544

Professor Milan Blagojevic, PhD Associate Professor

UNCONSTITUTIONAL RETROACTIVE IMPLEMENTATION OF INCRIMINATION CRIMES AGAINST HUMANITY IN PRACTICE OF THE COURT OF BOSNIA AND HERZEGOVINA (Disturbed Precedenting of the Law) Second, revised edition

Banja Luka, 2015

Unconstitutional retroactive implementation of incrimination crimes against humanity in practice of the Court of Bosnia and Herzegovina (Disturbed Precedenting of the Law) Second, revised edition Author: Professor Milan Blagojevic, PhD Publishers: PI OFFICIAL GAZETTE OF THE REPUBLIC OF SRPSKA SPKD â&#x20AC;&#x153;Prosvjetaâ&#x20AC;?, City board Banja Luka For publishers: Dragan Veselinovic Dr Jelenko Bojic, president Reviewers: Professor Milan Skulic, PhD Professor Vladimir Djuric, PhD Milorad P. Ivosevic LLM, Slobodan Nagradic Editor: Visnja Bajic Preradovic Proofreader: Professor Milorad Telebak English translation: Lidija Dangubic, Bachelor`s degree in English language and literature Print by: PI Official Gazette of the Republic of Srpska For printing: Boro Luburic, B.Sc. in Graphic Design Cover design: Marko Kelecevic Circulation: 150

CONTENTS I. II.

Introduction ............................................................ 7 The origin and development of incrimination crimes against humanity ..................................... 17 II.1. Introductory notes................................................... 17 II.2. Period until the Rome Statute of the International Criminal Court ............................ 19 II.3. Period from entering into force of the Rome Statute of the International Criminal Court ........... 37 III. The principle of legality in criminal law ............ 45 III.1. Comparative review of constitutional and legal prescribing of this principle in the world .............. 45 III.2. The content of the principle of legality in criminal law ........................................... 50 IV. Practice of the Court of Bosnia and Herzegovina ...................................... 57 IV.1. Verdicts rendered on the basis of a plea agreement ..................................................... 57 IV.2. Verdicts rendered after the main trial ..................... 67 IV.2.1. The second-instance verdict of the Court of BiH, number X-KRZ-05/04 of August 7th, 2007 ........... 67 IV.2.1.1. About the claims from the judgment related to the term of a widespread or systematic attack ................................................ 68 IV.2.1.2. On the implementation of criminal substantive law in the verdict number X-KRZ-05/04 of August 7th 2007 ............ 76

On the implementation of law by the Constitutional Court of Bosnia and Herzegovina .................................. 81 VI. On the implementation of law by the European Court of Human Rights ............... 89 VII. Disturbed precedenting of the Law in practice ..................................................... 93 VII.1. Introductory remarks .............................................. 93 VII.2. Judgment of the Court of BiH in the case of WKH 3URVHFXWRU¶V 2I¿FH RI %L+ DJDLQVW Ratko Dronjak ....................................................... 94 VII.2.1. First-instance judgment of the Court of BiH, No. S1 1 K 003420 10 Kri (X-KR-09/684) of 1st June, 2012, and the relevant decisions by the Hague Tribunal and the European Court of Human Rights .......................... 98 VII.2.2. Second-instance judgment of the Court of BiH, No. S1 1 K 003420 12 Krz 7 of 21st February, 2013 ......................................... 133 VII.2.3. The decision of the Constitutional Court of Bosnia and Herzegovina, No. AP 3280/13 of 7th October 2014 ................... 137 VIII. Why? ......................................................................... 141 LITERATURE .................................................................. 161 REVIEW of Professor Milan Skulic, PhD ...................... 165 REVIEW of Professor Vladimir Djuric, PhD ................ 169 REVIEW od Milorad P. Ivosevic and LLM, Slobodan Nagradic................................................. 175 About the author ................................................................. 181

Disturbed Precedenting of the Law

I. Introduction Although dedicated to a contemporary issue, this work will not begin with exposing it but recalling an event from the late nineteenth century, which has stirred the French public at that time. We are talking about the famous Dreyfus case, which began LQ ODWH DQG LQ ZKLFK $OIUHG 'UH\IXV DQ RIÂżFHU RI WKH -HZLVK origin on the French General Staff, was accused and convicted of espionage in favor of Germany. He was sentenced to life exile to Devilâ&#x20AC;&#x2122;s Island (one of the small islands next to the coast of French Guiana). Court proceedings were held behind closed doors, causing strong reactions among the French public, up to the extent that encouraged the world famous French writer Emile Zola to write his famous book, â&#x20AC;&#x153;I accuseâ&#x20AC;? (Jâ&#x20AC;&#x2122;accuse). In this book (due to which he was tried three times) Zola has made a series of data that illuminated the Dreyfus case, which made him write an open letter in 1898 in which he accused the members of the Supreme Headquarters of one of the worst legal crimes in history. Thanks to this French writer among other things, Dreyfus case will have an epilogue in 1906 which resulted in Alfred Dreyfus rehabilitation by the Court of France in plenary, on behalf of which the French president, surrounded by forty judges of that court, spent sixty minutes reading judicial decision of the highest court in the country which helped to establish the innocence of Alfred Dreyfus and the guilt of Major Walsin-Esterhazy. However, the bitter taste of this case was felt even after, due to the stirred feelings which have never completely settled down. And this is exactly why we started this work by recalling the Dreyfus case, because the things that we are going to

Professor Milan Blagojevic, PhD

discuss below have similarities with the mentioned case. One RI WKHP LV UHĂ&#x20AC;HFWHG LQ WKH IDFW WKDW WKH IDFWXDO EDFNJURXQG RI the problem to which this paper is dedicated explains that in the case of unconstitutional accusations (and convictions) of persons (individuals) of Serbian nationality of incrimination crimes against humanity it was not just about the trial of these people but also the trial of the Republic of Srpska for something LW KDV QRW GRQH ZKLFK LV WKH ÂżUVW VLPLODULW\ ZLWK WKH 'UH\IXV case. Such action will cause the stir of the passions which, like in the Dreyfus case, will never settle, as it is quite certain even now, and this brought us to another similarity of this problem with the mentioned case. Retroactive implementation of criminal law is a matter which has captured attention of our professional, but also general public for quite some time now. Regarding this there is a case that provoked special interest is the so-called Maktouf case, especially after the European Court of Human Rights in July 2013 made a decision (in cases no. 2312/08 and 34179/08), according to which in this (as in the case Damjanovic) in the judgments of the Court of Bosnia and Herzegovina (which means, in the decisions of the Constitutional Court of Bosnia and Herzegovina as well) there have been a violation of Article 7 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter: European Convention). The Court noted (paragraph 76 of the decision) that such decision does not mean that the penalties imposed should have been milder, but only that provisions on penalties established by the Criminal Code of Socialist Federal Republic of Yugoslavia of 1976 (Criminal Code of SFRJ of 1976) should have been applied in these cases. In

Disturbed Precedenting of the Law

addition to this section that contains the essence of the decision, which was, by the way, adopted unanimously by judges when it comes to the violation of Article 7 of the European Convention, attention (considering the topic of this paper) should be paid to the part of the decision concerning the principle of legality in a criminal law. Regarding this the Court states in paragraph 66 of its decision that the Article 7 of the European Convention includes the principle according to which only WKH ODZ FDQ GHÂżQH (determine) a crime and prescribe punishment for it (nullum crimen, nulla poena sine lege), as well as the fact that criminal law should not be interpreted extensively to the detriment of the accused, for example by using analogies. It follows, as the Court concludes, that WKH FULPH PXVW EH FOHDUO\ GHÂżQHG E\ WKH ODZ, and this requirement is met when an individual from the text of the UHOHYDQW SURYLVLRQ FDQ ÂżQG RXW ZKDW DFWLRQV RU RPLVVLRQV FDQ make him be held criminally liable. The same attitude Court held in September 2009, in decision no. 10249/03 in Scoppola case to which it refers also in its decision related to case Maktouf and Damjanovic. However, the case Scoppola is important not only because it is one more WKLQJ WKDW FRQÂżUPV WKH &RXUWÂśV DWWLWXGH WKDW D FULPH PXVW be FOHDUO\ GHÂżQHG E\ WKH ODZ but also because of something HOVH WKDW LV LPSRUWDQW IRU WKLV SDSHU DV ZHOO 6SHFLÂżFDOO\ LQ paragraph 109 of the decision made in September 2009 in the Scoppola case, the Court agreed that Article 7, paragraph 1 of the European Convention guarantees not only the right to prohibit the retroactive implementation of more rigorous criminal law but also the right to retroactively apply criminal law if it is more lenient to the accused in the relevant case. This, as well as the paragraph we have just mentioned which

Professor Milan Blagojevic, PhD

VWDWHV WKDW WKH FULPH PXVW EH FOHDUO\ GHÂżQHG E\ WKH ODZ GR QRW express anything that has been unknown or unacceptable for WKH FULPLQDO VFLHQFH VR IDU EXW ZKDW EHDU LPSRUWDQFH LV WKH ÂżQDO part of paragraph 109 of the judicial decision in Scoppola case where it is said that the principle of mandatory implementation of the more lenient criminal law arises under the rules according to which, in the case where there is a difference between the criminal law that was in effect at the time of the crime and subsequent criminal laws which came into force before making D ÂżQDO MXGJPHQW LQ D FULPLQDO FDVH WKH FRXUW PXVW DSSO\ WKH provisions of the law which is more favorable to the accused1. This rule, which does not make any special novelty that should be attributed to the inventiveness of the Court, brings not only the conclusion on a mandatory retroactive implementation of subsequent legislation if it is more lenient to the accused, but also the conclusion of special importance to the subject of this paper. Namely, when the Court in the cited part of its decision on the Scoppola FDVH VWDWHV WKDW LQ FDVH WKHUH LV D FRQĂ&#x20AC;LFW between criminal laws, the court must apply the law whose provisions are most favorable to the accused, then, if we want to be consistent, that means that it should also apply provisions In English version of the decision this paragraph reads (our italics): â&#x20AC;&#x153;109. In the light of the foregoing considerations, the Court takes the view that it is necessary to depart from the case-law established by the Commission in the case of X v. Germany DQG DIÂżUP WKDW $UWLFOH Â&#x2020; RI WKH &RQYHQWLRQ JXDUDQWHHV not only the principle of non-retrospectiveness of more stringent criminal laws but also, and implicitly, the principle of retrospectiveness of the more lenient criminal law. That principle is embodied in the rule that where there are differences between the criminal law in force at the time of the commission RI WKH RIIHQFH DQG VXEVHTXHQW FULPLQDO ODZV HQDFWHG EHIRUH D ÂżQDO MXGJPHQW LV rendered, the courts must apply the law whose provisions are most favourable to the defendant.â&#x20AC;?

Disturbed Precedenting of the Law

of the law which was in force at the time of the crime if the law does not recognise incrimination which the prosecutor wants to obtain by his indictment, because such a crime was simply unknown at the time when the accused committed the offense he was charged with by the indictment. This attitude can, among other things, be used to explain the interest of professional public abroad regarding the problem of retroactive implementation of criminal law in Bosnia and Herzegovina (hereinafter: BiH), because it, as we shall see later, opens the question of (non)implementation of the provisions of the most favorable criminal law. Among other things, this interest is proved by the work of French authors Olivier Cahn and Raphael Parizot entitled “Juger en Bosnie Herzegovine les crimes de guerre commis en ex - Yougoslavie: Quelle loi? Quel Juge? “(“To judge in Bosnia and Herzegovina for war crimes committed in the former Yugoslavia: What law? Which judge?”)2. This work is dedicated to the judicial decision in the case Maktouf and Damjanovic, but it goes even beyond it since in case Maktouf and Damjanovic the subject was to decide which sanction is more lenient to the persons who have been previously convicted of a war crime, which was prescribed as incrimination in domestic law at the time the crime was committed. However, in the above-mentioned paper the authors, inter alia, point out the problem of errors LQ WKH OHJDO TXDOL¿FDWLRQ RI WKH IDFWV 5HJDUGLQJ WKLV WKH essence of the thinking of the authors comes down to the view according to which, if the facts subsequently obtain more The paper was published in magazine AJ Penal, Jurisprudence, November 2013, p. 601-604.

Professor Milan Blagojevic, PhD

VHULRXV TXDOLÂżFDWLRQ WKDQ WKH RQH ZKLFK VKRXOG EH DSSOLHG E\ the law, such an error would, as stated by the mentioned paper, represent a violation of Article 7 of the European Convention3. Therefore, everything said so far represent the subject of this paper, which (on the practical sample from several court cases) will analyze the practice originated and accepted in the ZRUN RI WKH 3URVHFXWRUÂśV 2IÂżFH RI %RVQLD DQG +HU]HJRYLQD and the Court of Bosnia and Herzegovina. What is it actually about? For the purposes of this introductory part the answer to this question may be in the shortest (and easiest) way given as follows. Prosecutor of BiH has in quite a number of cases so far (measured in tens of cases in which the verdicts went into effect) accused persons for crimes committed during the armed FRQĂ&#x20AC;LFW LQ %RVQLD DQG +HU]HJRYLQD IURP WR FKDUJLQJ them with crimes against humanity according to Article 172 of the Criminal Code of BiH, although this crime did not exist (it was not prescribed) neither in the criminal legislation of the former SFRY, nor in the legislation of BiH until the 2003 (it was not prescribed by neither the Criminal Code of the Federation of Bosnia and Herzegovina of 1998, nor the criminal Code of the Republic of Srpska of 2000, or the Criminal Code of Brcko District of 2000). This crime was not precribed either in the relevant period from 1992 to 1995, due to which there were no conditions for prosecution and conviction of the accused to the mentioned incrimination, since it is contrary to the principle of legality. The problem begins to complicate with the fact that the indictments for the incrimination for crimes against humanity, and the construction of a systematic, and widespread attack 3

Ibidem,p. 603

Disturbed Precedenting of the Law

against the civilian population, do not refer to the Bosniaks, nor the government of the Republic of Bosnia and Herzegovina at the time, but are directed towards people of Serbian nationality, members of the police and the army units of the Republic of Srpska, as well as the Republic of Srpska itself. To explain the hypothesis that there were no conditions for prosecution and conviction of the accused for the said incrimination, it is necessary to remind the readers (in brief) of the mentioned incrimination background, since that is exactly the way to more easily perceive the reason which, in the practice of the Court of BiH, caused unconstitutional retroactive implementation of crimes against humanity according to the Article 172 of the Criminal Code of BiH. Therefore, the continuation of this paper will primarily be dedicated to the creation and development of crimes against humanity under international criminal law. After that, we will give exposure of the essence of the principle of legality, both in domestic and international criminal law, after which we will pay appropriate attention to the practice of the Court of BiH, where arose a problem to which this paper is dedicated. Given that the Hague Tribunal in its judgments disclosed the views referring to the terms of a broad, systematic and widespread attack, it was necessary to point out the proper decisions of that tribunal, because they are exactly what the Court of BiH mentiones in its judgments during the unconstitutional retroactive implementation of incrimination for crimes against humanity. After that the Constitutional Court of Bosnia and Herzegovina and the European Court of Human Rights had to make some GHFLVLRQV EXW VDGO\ WKH\ RQO\ FRQÂżUPHG WKH XQFRQVWLWXWLRQDO practice of the Court of BiH, which will also be discussed in

Professor Milan Blagojevic, PhD

the appropriate place within this paper. The decisions made by these two courts, and especially by the European Court of Human Rights, will become a sort of canon for all future cases when it comes to the retroactive implementation of incrimination crimes against humanity under the Article 172 of the Criminal Code of BiH. In order to give the practical example of its implementation we shall mention the verdicts made by the Court of BiH regarding the case BiH Prosecutorâ&#x20AC;&#x2122;s 2IÂżFH DJDLQVW 5DWNR 'URQMDN WR WKH H[WHQW UHOHYDQW IRU WKLV study. We shall give a description of this case after the chapter which deals with the implementation of law by the European Court of Human Rights in such cases. Before we start the exposure in the order given, it is QHFHVVDU\ WR PDNH RQH FODULÂżFDWLRQ ,W LV UHODWHG WR WKH WLWOH RI WKLV SDSHU ZKLFK OLNH DQ\ RWKHU SDSHU WKDW WHQGV WR EH VFLHQWLÂżF must satisfy two key requirements. The title should express its EDVLF FRQWHQW ÂżUVW UHTXLUHPHQW ZKHUHE\ WKH WLWOH VKRXOG EH clear and concise (second requirement). Considering the fact that the subject of this paper is a problem whose basic content, rather the essence, is not possible to be expressed with one title that would simultaneously satisfy these requirements, we decided to have a title and subtitle for this paper. We wanted to express the basic content of the paper through its title, but this could not be done without consequences to the length of the title. So we tried to moderate this lack as much as possible by introducing subtitle, which is short, but not clear enough, which is why we shall explain it in the introductory part. In legal theory the court judgment serving as a source of law is called a precedent, and such it becomes (our italics in the

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text) â&#x20AC;&#x153;... when the norm with which a particular case is solved (and which is made on the basis of custom, or law, or quite independently by the court) is considered mandatory for all future similar cases, i.e. when an individual norm in nature is turned into a general norm.â&#x20AC;?4 From this particular idea of precedent, characteristic for the Anglo-Saxon but not our legal climate, we should distinguish the notion precedenting of the law given in the subtitle of the paper, because in the latter case it is a valuably negative process that is taking place for several years now in our region. Its essence is represented by the desire of those who manage global processes to have certain decisions of international judicial institutions, adopted in certain cases, unquestioningly accepted and be implemented by the local judiciary. This intention results in two consequences, one of which is that the domestic legal system is being increasingly precedenting (and that includes the way of thinking of local lawyers), while the second refers to the conversion of certain international judicial institutions (the Hague Tribunal and the European Court of Human Rights) into a sort of legal gods, who are to be listened to and obeyed. The issue that we deal ZLWK LQ WKLV SDSHU FRQÂżUPV LQ WKH EHVW ZD\ HYHU\WKLQJ WKDW KDV been said, although this is only one of many forms of disturbed SUHFHGHQWLQJ RI WKH ODZ WKDW WDNHV SODFH LQ RWKHU ÂżHOGV RI law. In the following lines we shall see that the Statute of the Hague Tribunal in a being of crimes against humanity does not contain a letter on the construction of a widespread or 5DGRPLU ' /XNLĂź %XGLPLU 3 .RĂŁXWLĂź 'UDJDQ 0 0LWURYLĂź ,QWURGXFWLRQ to Law (Uvod u pravo), fourteenth improved and revised edition, Belgrade, 1999, p. 501.

Professor Milan Blagojevic, PhD

systematic attack directed against a civilian population, or on the knowledge of the perpetrator for such an attack. These are creations that fundamentally change the very essence of this crime (in the way it was provided by the Statute of the Hague Tribunal), and the creations which, as we shall see, represent the perfect tool of manipulation for political purposes. Thus, these constructions will be created only by the decisions of the Hague Tribunal issued in individual cases, which means that they did not exist at the time the events, which were the subject of the trial, occurred. However this will not pose any obstacle for the Tribunal to implement them, even made in such an disturbed way, in its practice. Subsequently these constructions are applied by the Court of Bosnia and Herzegovina on the events of the recent war in BiH (in the proceedings conducted, and those being conducted, before it), even though the incrimination crimes against humanity has not been prescribed as a criminal offense in the domestic legal order until 2003. Unfortunately, WKLV NLQG RI WUHDWPHQW UHFHLYHG ZDV ÂżUVW FRQÂżUPHG E\ WKH Constitutional Court of Bosnia and Herzegovina, and then by the European Court of Human Rights, which, considering that these are precedenting constructions created and then applied in a disturbed manner, represents a kind of legal tragedy.

Disturbed Precedenting of the Law

II. The origin and development of incrimination crimes against humanity

II.1. Introductory notes Writing about the origin and development of this crime should not be reduced only to a simple chronological presentation of the events which preceded creation and development of this criminal legal institute. A presentation of this issue should, at the same time, include a reference to the differences that are evident in determining being of this crime in certain time stages, prior it (the being) was determined in a way it was done by the Rome Statute of the International Criminal Court. Therefore, this development can (and should) be viewed and analyzed in two SDUWV 7KH ÂżUVW RI WKHP LQFOXGHV WKH WLPH IURP WKH PRPHQW ZKHQ the term occurred until the Rome Statute of the International Criminal Court was adopted. The second includes the time from the moment when the Statute was adopted until the present, that is the only time period to which the mentioned incrimination in the Criminal Code of BiH can be related, which is of particular importance. In fact, a being of crimes against humanity from the Article 172 of the Criminal Code of BiH did not exist (in the content given under the above article) until the Rome Statute of the International Criminal Court was adopted and entered into force. This especially applies to that part of the being of this incrimination concerning the existence of a widespread or systematic attack directed against any civilian population, as well as the knowledge of perpetrator for such an attackâ&#x20AC;?. How we shall see below, there were no these elements (very important)

Professor Milan Blagojevic, PhD

in the being of incrimination as determined in the earlier general legal acts of the importance for international criminal law. And that is particularly why we shall follow the occurrence and development of crimes against humanity in two phases. $V ZH KDYH DOUHDG\ H[SODLQHG WKH ÂżUVW RI WKHP FRYHUV WKH period from the occurrence of the term until the Rome Statute of the International Criminal Court, while the second encompasses the period from the adoption and entry into force of the statute until today. The second period also includes BiH legislation, since incrimination from the Article 172 of the Criminal Code of BiH was made as a result of international legal obligations that BiH accepted by signing and ratifying the Statute of International &ULPLQDO &RXUW 7KH GHFLVLRQ RQ UDWLÂżFDWLRQ QXPEHU 01-52/02) was adopted by The Presidency of Bosnia and Herzegovina at the meeting held on February 5th, 2002. The decision was published LQ WKH Âł2IÂżFLDO *D]HWWH RI %L+Â´ International Treaties, no. 2 of March 6th, 2002. Article 3 of the 'HFLVLRQ RQ UDWLÂżFDWLRQ SUHVFULEHV WKDW the Decision shall enter into force on the day when it is published in the â&#x20AC;&#x153;2IÂżFLDO *D]HWWH of BiHâ&#x20AC;?. Our literature emphasizes that (our italics) â&#x20AC;&#x153;Crimes against humanity are the novelty in our criminal legislationâ&#x20AC;?, and WKDW ÂłWKH EDVLV RI WKH LQFULPLQDWLRQ GHÂżQHG E\ WKLV $UWLFOH LV WKH Rome Statute of the International Criminal Court, which results in a fact that this crime, with minor differences in terminology, is determined in almost identical way to the description of crime against humanity determined by Article 7 of the Rome Statuteâ&#x20AC;?.5

Prof. Zvonimir Tomic: Criminal law II Separate section, second amended and improved edition, Sarajevo, 2007, p. 418 (.ULYLĂžQR SUDYR ,, 3RVHEQL GLR drugo izmijenjeno i dopunjeno izdanje)

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II.2. Period until the Rome Statute of the International Criminal Court The mere appearance of this term in the literature is usually related to the First World War and mass suffering of the Armenians in the Ottoman Empire in 1915.6 Moved by these sufferings, the governments of France, Britain and Russia on May 28th, 1915 issued a declaration in which they declared that they will hold the members of the Ottoman government and their agents who participated in the massacre of the Armenians responsible of the crimes Turkey made against humanity and civilization. After the end of the First World War the International War Crimes Commission recommended the establishment of a tribunal that would judge on the violation of the rights of humanity, but this proposal was not approved by the representatives of the United States, who have put a complaint that this concept was vague DQG LQVXIÂżFLHQWO\ GHYHORSHG WR WKDW SRLQW. Such situation lasted until the end of the Second World War, when London agreement led to the establishment of the Nuremberg Tribunal. It is stated by the Article 6, paragraph 1 of the Statute of the International Military Tribunal (Statute of the Nuremberg Tribunal) that the Tribunal was established by the Agreement of August 8th, 1945 which was signed between the U.S. Government, the provisional Government of the French Republic, the UK Government and the Government of the However, the term "crime against humanity" was used prior to this, when the Republican National Convention in 1860., in its election platform, upon which Abraham Lincoln participated in the election race for the president of the United States, included the statement that marked reopening of the African slave trade as a crime against humanity.

Professor Milan Blagojevic, PhD

Soviet Union, in order to trial and punish the major war criminals of the European axis who, either as individuals or members of organizations, acted in the interests of the European axis, and so committed some of the crimes determined by the Statute. According to the Article 6, paragraph 2 of the Statute WKH IROORZLQJ FULPHV DUH GH¿QHG DV FULPHV XQGHU WKH 7ULEXQDO¶V jurisdiction: crimes against peace, war crimes and crimes DJDLQVW KXPDQLW\ $ EHLQJ RI WKH ODWWHU FULPH LV GH¿QHG E\ WKH Article 6, paragraph 2 in the following way: “…. (c) Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane actions committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution of or in connection with any crime which is under the jurisdiction of the court, regardless of whether it is a violation of law of the country where the crimes were committed.” This crime was determined by the Statute of the International Military Tribunal for the Far East, with headquarters in Tokyo. This Court has not been established by an agreement between the Allied forces, but by a proclamation of January 19th, 1946 of a Supreme Commander for the Allied forces in the Far East, U.S. General Douglas MacArthur. This statute also prescribed three groups of crimes: crimes against peace, war crimes and crimes DJDLQVW KXPDQLW\ :KHQ FULPHV DJDLQVW KXPDQLW\ GH¿QHG E\ this statute are considered there was no prosecution on religious grounds mentioned anywhere, which was different compared to the Statute of the Nuremberg Tribunal.

Disturbed Precedenting of the Law

After the trials at the Nuremberg were completed the formulation of the principles of international criminal law started. This obligation was assumed by the United Nations. With its Resolution no. 177 (II) of November 21st, 1947 the General Assembly of the United Nations mandated the United Nations Commission on International Law to formulate these principles. After a long work the above mentioned Commission published the principles in its report on work from June 5th to July 29th, 1950, which were adopted by the United Nations General Assembly on December 12th, 1950. These are the mentioned principles: Principle I: Every person who undertakes an action which is by international law considered crime is responsible for it and subject to penalties. Principle II: The fact that domestic law does not prescribe the punishment for the action which is by the international law GH¿QHG DV FULPH GRHV QRW UHOHDVH D SHUVRQ ZKR FRPPLWWHG LW RI responsibility in accordance with the international law. Principle III: The fact that a person who has committed an act which is considered a crime in accordance with international law, committed that crime while performing the duties of the +HDG RI 6WDWH RU UHOHYDQW RI¿FLDO VKDOO GRHV QRW UHOHDVH WKH SHUVRQ RI UHVSRQVLELOLW\ DV GH¿QHG E\ LQWHUQDWLRQDO ODZ Principle IV: The fact that a person acted on the orders of the government or of a superior does not release him of responsibility according to international law, provided that they had the possibility of moral choice. Principle V: Any person charged with a crime according to international law has the right to a fair trial based on the facts and the law.

Professor Milan Blagojevic, PhD

Principle VI: The crimes listed here and after are punishable as crimes in accordance with international law7: c) Crimes against humanity: murder, extermination, enslavement status, deportation and other inhuman crimes committed against any civilian population, or prosecutions on political, racial or religious grounds, when such acts are done or the prosecutions carried out while performing, or in connection with the performance of any crime against peace or any war crime. Principle VII: Complicity in commiting crimes against peace, war crimes and crimes against humanity given by Principle VI is considered a crime according to international law. Stated principles of international criminal law have been FRQÂżUPHG E\ WKH &RQYHQWLRQ RQ 1RQ DSSOLFDELOLW\ RI 6WDWXWRU\ Limitations to War Crimes and Crimes Against Humanity, adopted by the General Assembly of UN in November 1968. ,W LV FOHDU WKDW WKLV ZDV FRQÂżUPDWLRQ RI WKRVH SULQFLSOHV ZKLFK can clearly be derived from the Article 1 of the Convention, ZKLFK GHÂżQHV WKH IROORZLQJ â&#x20AC;&#x153;No statutory limitation shall apply to the following crimes, irrespective of the date of their commission: â&#x20AC;Ś.. (b) crimes against humanity whether committed in time of war or in time RI SHDFH DV WKH\ DUH GHÂżQHG LQ WKH &KDUWHU RI WKH ,QWHUQDWLRQDO Hereinafter we will expose only characteristics of criminal acts (crimes) DJDLQVW KXPDQLW\ DV WKH\ ZHUH GHÂżQHG E\ WKH DIRUHPHQWLRQHG SULQFLSOHV RI international criminal law.

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0LOLWDU\ 7ULEXQDO 1XUHPEHUJ RI $XJXVW DQG FRQÂżUPHG by resolutions 3 (1) of 13 February 1946 and 95 (1) of 11 December 1946 of the General Assembly of the United Nations, â&#x20AC;Ś. even if such acts do not constitute a violation of the domestic law of the country in which they were committed.â&#x20AC;?8 Therefore, this is a condition that has existed in normative terms until the Statute of the International Criminal Tribunal for the former Yugoslavia was adopted. Among other things, it is characterized by the lack of clarity in the formulation of all acts of crimes execution of which was desired to be determined as crimes punishable according to international law. However, GHVSLWH WKLV RQH IDFW LV TXLWH FHUWDLQ DQG LW LV UHĂ&#x20AC;HFWHG LQ WKH fact that in the formulation of crimes against humanity in either of these acts there does not exist, as the conditions for the existence of the crime, a systematic or a widespread attack, or knowledge of the existence of such an attack. In respect to this, things have not changed even after the Statute of the International Criminal Tribunal for the former Yugoslavia was adopted, because it also did not contain such incrimination. 6SHFLÂżFDOO\ WKH $UWLFOH RI WKH 6WDWXWH RI WKH ,QWHUQDWLRQDO Criminal Tribunal for the former Yugoslavia describes the being of this crime in a way that it prescribes that this Tribunal Resolutions of the General Assembly of the UN referred to in the quoted DUWLFOH DUH UHVROXWLRQV WKDW DIÂżUP WKH SULQFLSOHV RI LQWHUQDWLRQDO ODZ UHFRJQL]HG in the Statute of the Nuremberg Tribunal. One of these principles, as shown, determines the being of a crime against humanity which includes: murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution of or in connection with any crime which is under the jurisdiction of the court, regardless of whether it is a violation of the law of the country where the crimes were committed.

Professor Milan Blagojevic, PhD

â&#x20AC;&#x153;.... is competent to prosecute persons responsible for the IROORZLQJ FULPHV FRPPLWWHG LQ DQ DUPHG FRQĂ&#x20AC;LFW ZKHWKHU RI international or internal character, and directed against civilian population: (a) murder; (b) extermination; (c) enslavement; (d) imprisonment; (e) torture; (f) rape; (g) prosecutions on political, racial and religious grounds; (h) other inhumane acts.â&#x20AC;? In November 1994 (November 8th of that year) the United Nations Security Council by its Resolution no. 955 established the International Criminal Tribunal for Rwanda. In the Article 3 of the Statute of this Tribunal the being of the crime against humanity is determined as follows: â&#x20AC;&#x153;The International Criminal Tribunal for Rwanda has jurisdiction to prosecute persons responsible for the following crimes committed as a part of widespread or systematic attack against civilian population based on national, political, ethnic, racial or religious grounds: (a) murder; (b) extermination;

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(c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) prosecutions on political, racial and religious grounds; (i) other inhumane acts. â&#x20AC;? As we can see, the Statute of the Tribunal for Rwanda is the ÂżUVW WR GHÂżQHV WKH WHUP RI ZLGHVSUHDG DQG V\VWHPDWLF DWWDFN as an element (very important one) of the being of the crime. However, it would be wrong to conclude on that basis that such incrimination thus became an international criminal offense (with the given content). Such a conclusion would be wrong due to the fact that the Statute of the Tribunal for Rwanda was adopted with a certain importance for a particular area and the crimes committed in a given period of time. Article 1 of the Statute of the Tribunal determines the Tribunal as a competent body for serious violations of international humanitarian law in the territory of Rwanda, and for Rwandan citizens responsible for such violations committed in the territory of neighboring States in a time period between January 1st and December 31st of 1994. Therefore, the being of FULPHV DJDLQVW KXPDQLW\ DV GHÂżQHG LQ WKH 6WDWXWH RI WKH 7ULEXQDO for Rwanda, has its own spatial, temporal and even personal limit, because its importance can extend only to the particular space and time in which Rwandan tragic events took place, and WR SHUVRQV ZKR KDYH FRPPLWWHG FULPHV LQ WKLV FRQĂ&#x20AC;LFW ,Q RWKHU words, every attempt to broaden the legal validity of the being of FULPHV GHÂżQHG E\ WKH 6WDWXWH RI WKH 7ULEXQDO IRU 5ZDQGD RXW RI

Professor Milan Blagojevic, PhD

the given space and time is deprived of any legal basis. Therefore, the jurisprudence developed in individual cases of this Tribunal, related to the interpretation of the concept of a widespread and systematic attack, should not become a judicial custom obligatory outside the framework of these cases. However, in practice, the opposite has happened, what can not be defended by any valid legal argument. The only â&#x20AC;&#x153;argumentâ&#x20AC;? is the position and force (Quod licet Iovi non licet bovi) of those who, as we shall see, act contrary to what we have just indicated, in which way the principle RI OHJDOLW\ LV Ă&#x20AC;DJUDQWO\ YLRODWHG HVSHFLDOO\ LWV HOHPHQW WKDW FRXOG shortly be described with the term lex certa. We point this out because of the fact that the Statute of the International Criminal Tribunal for the former Yugoslavia, as already explained, do not prescribe that there is within the being of the criminal act crime against humanity a widespread or systematic attack as an element of that being. Still, the Tribunal did not think of this as a barrier to construct such an element, but also, and this is one of the tragical things when the work of this Tribunal is considered, to rise it to the level of a vital constituent element whose absence means that this type of crime does not exist. As an example, we give here the long quotes from the verdict of the Trial Chamber in case 3URVHFXWRU v. Tihomir Blaskic (verdict of March 3rd, 2000 in case no. IT-9514-T). The Trial Chamber in paragraph 202 of the mentioned verdict ÂżUVW VWDWHV WKDW D ZLGHVSUHDG RU V\VWHPDWLF DWWDFN LV QRW mentioned in the provisions of the Article 5 of the Statute of the Tribunal. Therefore, the Tribunal thus explicitly recognizes that its Statute does not contain above mentioned elements

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within the being of this incrimination, but despite argues that the words (our italics in the quote): “202. ...directed against any civilian population, as well DV VRPH XQGHU TXDOL¿FDWLRQV OLVWHG LQ WKH WH[W RI WKH 6WDWXWH include an element of massiveness or organization, which may refer to the crimes or the victims. Extermination, enslavement and prosecution do not actually indicate the individual acts.” By presenting such a claim the Trial Chamber do not want to say (and it should) that the Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia determines that this kind of incrimination exists in the case of executed murder. So, for the existence of such incrimination, in a way the mentioned Statute determined its being, it is enough to have a murder of only one civilian, not more of them, provided WKDW LW LV GRQH LQ DQ DUPHG FRQÀLFW DQG WKDW FLYLO SRSXODWLRQ (which means any individual of that population) is an object at which the act of execution was aimed. This is because the relevant part of the being of the mentioned incrimination in the English version reads (italics in the text is ours): “Article 5 Crimes against humanity The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed LQ DUPHG FRQÀLFW, whether international or internal in character, and directed against any civilian population: (a) murder; .......”

Professor Milan Blagojevic, PhD

And in the version of the Statute in French language, which is DOVR WKH RIÂżFLDO ODQJXDJH RI WKH PHQWLRQHG 7ULEXQDO LQ WKH SODFH stated related to the being of this incrimination they used the word â&#x20AC;&#x153;assassinatâ&#x20AC;?, that is murder (i.e., singular). The same applies for the word used to mark the act of â&#x20AC;&#x153;rapeâ&#x20AC;?, that is â&#x20AC;&#x153;rapeâ&#x20AC;? in English or â&#x20AC;&#x153;violâ&#x20AC;? in the French version of the Statute of the Tribunal, which when performed also provides the characteristics of this crime if the attacked object is a member of civilian population (according to the words of Article 5 of the Statute of the Tribunal in the Hague). The Trial Chamber does not take this into account, and in the aforementioned verdict, as a â&#x20AC;&#x153;proofâ&#x20AC;? of its position, refers to the verdicts of the Tribunal for Rwanda. Here is how it has been done in the relevant part of the verdict: Âł %HVLGH WKDW FRQÂżUPDWLRQ WKDW WKH ÂłZLGHVSUHDG or systematic characterâ&#x20AC;? is an integral element of crimes against humanity is contained in the Article 3 of the Statute of the International Criminal Tribunal for Rwanda (but it is not in the Statute of the Hague Tribunal - our note) and in the Article 7 of the Statute of the International Criminal Court. The Appeals Chamber in its verdict on the Tadic case, ruling on an appeal from the judgment of the Trial Chamber II of the ICTY of May 7th, 1997, and the Trial Chambers I and II of the ICTR in its judgments of September 2nd, 1998 and May 21st, 1999 in cases Prosecutor v. Jean Paul Akayesu and Prosecutor v. Clement Kayishema and Obenda Ruzindana, found that the widespread or systematic character is an essential element of incrimination. Therefore there is no doubt that the inhumane acts which constitute crime against

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KXPDQLW\ PXVW ÂżW LQWR WKH IUDPHZRUN RI D ZLGHVSUHDG RU systematic attack directed against civilians.â&#x20AC;? 7KH 7ULDO &KDPEHU LV QRW VDWLVÂżHG ZLWK SUHYLRXVO\ FLWHG so in the following paragraphs of the verdict it makes certain undertaking whose essence boils down to (in the form of special incrimination which is not mentioned in the being of a crime against humanity contained in the Article 5 of the Statute RI WKH +DJXH 7ULEXQDO GHÂżQLQJ WKH WHUPV RI D V\VWHPDWLF and widespread attack. In order to properly understand what follows, it is necessary to bear in mind that none of the things cited right below is not included in the normative part of the Statute of the Hague Tribunal. Thus, according to the Trial Chamber a systematic nature of the attack has four elements, and they are: â&#x20AC;&#x153;203. ...... - the existence of a political goal, i.e. a plan according to which the attack is undertaken or ideology in the broader sense of the word, which seeks to destroy, persecute or weaken a community; - execution of a large-scale crime against a group of civilians or the repeated and continuous performance of interrelated inhumane acts; SUHSDUDWLRQ DQG XVH RI VLJQLÂżFDQW SXEOLF RU SULYDWH resources, whether military or other; - the involvement of high-level political and/or military DXWKRULWLHV LQ GHÂżQLQJ DQG IRUPXODWLQJ LQYHQWHG SODQ

Professor Milan Blagojevic, PhD

204. That plan, however, does not necessarily have to be explicitly declared or clearly and accurately presented. It can be derived from the existence of a set of facts ..... â&#x20AC;&#x153; The attitude of the Trial Chamber regarding the quoted part of the verdict was accepted by the Appeals Chamber on this case, verdict no. IT-95-14-A of July 29th, 2004, which is one of many examples of how illegal becomes legal which later, as we shall see, will become something that The Court of BiH refers to in its verdicts. The Appeals Chamber in its judgment of July 29th, 2004 says: â&#x20AC;&#x153;101. Regarding the widespread or systematic nature of the attack, the Appeals Chamber recalls the jurisprudence of the Tribunal in accordance with which the word â&#x20AC;&#x153;widespreadâ&#x20AC;? refers to a large-scale attack and the number of people who are its target, while the term â&#x20AC;&#x153;systematicâ&#x20AC;? refers to the organized nature of the violent acts and small probability that they are committed at random. Crime pattern - that is regular repetition, not accidental one, of a similar criminal behaviour â&#x20AC;&#x201C; is a common expression of such systematic events. Only the attack must be widespread or systematic, but not the individual acts of the accused. The Appeals Chamber points out that it is VXIÂżFLHQW WKDW WKH DFWV RI WKH DFFXVHG DUH SDUW RI WKH DWWDFN LQ order to - if all other requirements are met â&#x20AC;&#x201C; qualify an act or a relatively limited number of acts of the accused as a crime against humanity, unless those acts are not isolated or random. $OOWRJHWKHU WKH $SSHDOV &KDPEHU ÂżQGV WKDW WKH 7ULDO Chamber correctly assessed that acts which constitute crimes

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against humanity must be part of a widespread or systematic attack against civilians.â&#x20AC;? From the quoted text it may be concluded that the Trial and Appeals Chamber in the above judgments in 3URVHFXWRU Y Tihomir Blaskic case do not perform duties of the court, that is, to interpret and implement the relevant legal provisions. Instead, Chambers do something that is not the implementation, but the creation of law (judge made law), in a place where it should not be done in any way, considered that it is criminal law we are referring to9. The work conducted by the mentioned verdicts of the Trial and Appeals Chamber is a so-called Tribunal reincrimination, i.e. Tribunal additional incrimination - metaincrimination of the crime and it is done ex post facto considered the subject of the FULPH WKDW LV FRQVLGHUHG WKH VXEMHFW RI WKH DFFXVDWLRQ LQ D VSHFLÂżF case. There to, when incriminating again (reincrimination by the Tribunal) crimes against humanity, by entering a new element in its being which does not exist in the being of the crime in the way the being was determined by the Statute of the Tribunal in The Hague (additional incrimination - metaincrimination by the Tribunal, which is of essential character) and which is additionaly determined as qonditio sine qua non of the crime, the Trial Chamber awkwardly refers to the Rome Statute of the International Criminal Court. These are not the only cases of judicial creation of criminal legal institutes, because the Tribunal contra legem created the construction of a joint criminal enterprise, relying on the Article 7 of the Statute of the Tribunal, even though the provisions of this Article in no way provide a basis for the creation of such a structure. In the practice of the Tribunal in The Hague a rule is established also which says that in the case of the execution of the same actions (beating) there may be a concurrence of crimes against humanity and the crime of violation of the laws and war customs. An example of this is given in the verdict on the 7DGLĂź case (verdict of July 14th, 1997 in case no. IT-94-I-T).

Professor Milan Blagojevic, PhD

Namely, stating that â&#x20AC;&#x153;.... widespread or systematic character is an integral element of crimes against humanity containedâ&#x20AC;Ś. in the Article 7 of the Statute of the permanent International Criminal Courtâ&#x20AC;?, the Trial Chamber completely ignores the fact that at the time its verdict has been made (March 3rd, 2000) the Rome Statute of the International Criminal Court was not effective, because it entered into force just on July 1st, 2002. Then, the fact that the Article 11 of the Statute provides that the Court has jurisdiction only over crimes committed after the Rome Statute entered into force is ignored too. Article 11, paragraph 2 of the Rome Statute also prescribes that if the state becomes a party of this Statute after it entered into force, in this case, the Court has jurisdiction only over crimes that were committed after the Statute entered into force regarding that state, unless the state makes a statement in terms of the Article 12, paragraph 3 of the Rome Statute, by which, in spite of all said before, it accepts jurisdiction of the court for the crime in question. The last but not the least, the being of this crime has not been determined until the Rome Statute (WKDW LV IRU WKH ÂżUVW WLPH LQ KLVWRU\ ZLWK the global importance) in a manner that it contains the elements of a widespread or systematic attack directed against any civilian population with the knowledge about the attack. The Trial Chamber of the Hague Tribunal awkwardly refers to the verdicts of the Tribunal for Rwanda in cases 3URVHFXWRU Y -HDQ 3DXO $ND\HVX and 3URVHFXWRU Y &OHPHQW .D\LVKHPD and Obenda Ruzindane, stating that the local Trial Chambers found â&#x20AC;&#x153;.... that a widespread or systematic character is an essential element of incriminationâ&#x20AC;?. When the Chamber says this, it forgets the basic thing, and that is that the widespreading

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and systematicity are elements of incrimination crimes against humanity contained in the Statute of the Tribunal for Rwanda. In other words, it is not that these two are the essential elements because the Tribunal for Rwanda in the case Akayesu, and Kayishema and Ruzindane said so, but simply because it is so clearly (expresis verbis) prescribed in the being of a crime against humanity under the Article 3 of the Statute of the Tribunal for Rwanda, which does not exist in the being of this crime under the Article 5 of the Statute of the Tribunal in The Hague. Finally, by presenting these views, the Chambers of the Tribunal forget that neither the appropriate Geneva Convention, that is the Protocols to the Geneva Conventions, do not specify a widespreading and systematicity as conditions for the existence of breaches of the Geneva Conventions and Protocols. When considering this issue important are the Fourth Geneva Convention (Convention on the Protection of Civilian Persons in Time of War) and the Additional Protocols (Protocols I and II) with the Geneva Conventions. Article 147 of the Fourth Geneva Convention stipulates that the following crimes are considered serious violations10, provided that they are committed against persons or property protected by the Convention:

These are serious violations stated with the Article 146 of the Fourth Geneva Convention, by which the Contracting Parties have committed themselves to undertake any legislative measure necessary in order to prescribe the appropriate criminal sanctions against persons who committed or issued orders to commit any of the serious violations of the Convention determined by its Article 147.

Professor Milan Blagojevic, PhD

“.....intentional homicide, torture or inhuman treatment, including the biological experiments, intentional causing of great suffering or causing serious injuries to body or health, unlawful deportation or transfer, unlawful imprisonment, enforcing a protected person to serve in the armed forces of a hostile power or deprivation of his right to be regularly and unbiasedly judged according to the provisions of this Convention, taking of hostages, destruction and appropriation RI SURSHUW\ QRW MXVWL¿HG E\ PLOLWDU\ QHHGV DQG FDUULHG RXW LQ D large scale in illegal and authoritarian way.” Protocols I and II brought no change in this provisions of the Convention. Only Protocol I (Article 85 of the Protocol) made amendments to the mentioned provision, but not in terms of the introduction of the widespreading and systematicity as the TXDOL¿FDWLRQV QHFHVVDU\ LQ RUGHU WR KDYH D EUHDFK RI WKH *HQHYD Conventions, with a note that, as we shall see immediately after, these breaches are considered war crimes. Article 85 of the said Protocol contains the following provisions (italics in the text is ours): “Article 85. Repression of breaches of this Protocol 1. The provisions of the Convention related to the repression of breaches and grave breaches, amended by this section, shall be applied to the repression of breaches and grave breaches of WKLV 3URWRFRO 2. Acts described as grave breaches in the Conventions are grave breaches of this Protocol if committed against individuals in the power of an adverse Party protected by the Articles 44,

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45 and 73 of this Protocol, or against the wounded, ill and shipwrecked individuals of the adverse Party who are protected by this Protocol, or against the medical or religious personnel, medical units or medical transports which are controlled by the adverse Party and protected by this Protocol. $GGLWLRQDO\ WR WKH JUDYH EUHDFKHV GHÂżQHG E\ WKH $UWLFOH 11, the following acts shall be regarded as grave breaches of this Protocol, when committed wilfully, in violation of the relevant SURYLVLRQV RI WKLV 3URWRFRO DQG FDXVLQJ GHDWK RU VHULRXV LQMXU\ to body or health: (a) making the civilian population or individual civilians the object of attack (there is no word about widespreading or systematicity, and thus no knowledge of such an attack either our note); (b) launching an indiscriminate attack affecting the civilian population or civilian objects (again, there is no word about systematicity or widespreading - our note) in the knowledge that such attack will cause excessive loss of life, injury to FLYLOLDQV RU GDPDJH WR FLYLOLDQ REMHFWV DV GHÂżQHG LQ WKH $UWLFOH 57, paragraph 2 (a) (iii); (c) launching an attack (again, there is no word about systematicity or widespreading, and thus no knowledge of such an attack either - our note) against works or installations containing dangerous forces, knowing that such attack will cause excessive loss of life, injuries to civilians or damage to civilian REMHFWV DV GHÂżQHG LQ WKH $UWLFOH SDUDJUDSK D LLL (d) making non-defended localities and demilitarized zones the object of the attack; (e) making a person the object of attack in the knowledge that he is â&#x20AC;&#x153;hors de combatâ&#x20AC;?;

Professor Milan Blagojevic, PhD

I WKH SHUÂ¿GLRXV XVH LQ YLRODWLRQ RI WKH $UWLFOH RI WKH distinctive emblem of the Red Cross, Red Crescent or Red Lion and sun or of other protective signs recognized by the Conventions or this Protocol. 4. ,Q DGGLWLRQ WR WKH JUDYH EUHDFKHV GHÂ¿QHG LQ WKH SUHFHGLQJ paragraphs and in the Conventions, the following shall be UHJDUGHG DV JUDYH EUHDFKHV RI WKLV 3URWRFRO ZKHQ FRPPLWWHG ZLOIXOO\ DQG LQ YLRODWLRQ RI WKH &RQYHQWLRQV RU WKH 3URWRFRO (a) the transfer by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory, in violation of the Article 49 of the Fourth Convention; E XQMXVWLÂ¿DEOH GHOD\ LQ WKH UHSDWULDWLRQ RI SULVRQHUV RI war or civilians; F SUDFWLFHV RI à¯&#x2020;DSDUWKHLGÂ´ DQG RWKHU LQKXPDQ DQG degrading practices involving outrages upon personal dignity, based on racial discrimination; (d) making the clearly-recognized historic monuments, works of art or places for religious practices which constitute the cultural or spiritual heritage of peoples and to which special protection has been given by special arrangement, for example, within the framework of a competent international organization, for the object of the attack, causing as a result extensive destruction thereof, where there is no evidence of the violation by the adverse Party of the Article 53, sub-paragraph (b), and when such historic monuments, works of art and places for religious practices are not located in the immediate proximity of military objecitves;

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(e) depriving a person protected by the Conventions or referred to in paragraph 2 of this Article of the rights of fair and regular trial. 5. Without prejudice to the implementation of the Conventions and this Protocol, grave breaches of these instruments shall be regarded as war crimes.â&#x20AC;? II.3. Period from entering into force of the Rome Statute of the International Criminal Court This statute was adopted at a diplomatic conference of assignees of governments on the establishment of the International Criminal Court held in Rome from June 15th to July 17th of 1998. The adoption of the Rome Statute should be distinguished from its entry into force, considering the fact that the Statute entered into force just on July 1st of 2002. We point this out because, among other things, the relevant literature points to the practice developed by the French courts, which â&#x20AC;&#x153;... basically hold a view that by publishing (in the domestic legal order - our note) a contract may be implemented only ex nunc, but it was quickly agreed that the contract can be applied retroactively, to the events occurred before publishing, if such an opportunity arises from the provisions of the contract...â&#x20AC;?.11 Such a possibility does not exist when it comes to the Rome Statute of the International Criminal Court simply because something like that is not forseen by that Statute. 9ODGLPLU 'MXULĂź &RQVWLWXWLRQ DQG ,QWHUQDWLRQDO FRQWUDFWV Ustav i PHĂżXQDURGQL XJRYRUL Institute of Comparative Law, Belgrade, 2007, p. 301.

Professor Milan Blagojevic, PhD

Considering the subject of this paper, it should be pointed out that the literature regarding the problem of ex post facto trials rightly indicates that “.... the adoption and entry into force of the so-called Rome Statute of the International Criminal Court could (would) represent the path to overcoming this problem”12. Why or better yet, in what way does this Statute contribute to the resolution of this problem? The answer to this question is of great importance not only for the further work of the International Criminal Court but is of special importance to the problem being addressed in this paper. Namely, everything stated hereinafter on the jurisdiction of the International Criminal Court ratione temporis applies not only to the jurisdiction of this court, but the conclusions regarding it can literally be applied to the jurisdiction of the Court of BiH ratione temporis concerning the crimes against humanity of the Article 172 of the Criminal Code of BiH. 5HJDUGLQJ WKLV ZH VKRXOG ¿UVW UHPLQG \RX RI WKH $UWLFOH RI the Rome Statute. This Article (paragraph 1) stipulates that the Court has jurisdiction only over crimes committed after the Rome Statute entered into force, while paragraph 2 of this Article stipulates that if a country becomes a member of the Statute after its entry into force then the Court has jurisdiction only over crimes committed after the Statute entered into force for that State. Therefore, the provisions of the Article 22 of the Rome Statute (dedicated to the principle of legality) must be interpreted in conjunction with the Article 11 of the Statute. Thus, when the Article 22, paragraph 1 of the Statute states that a person shall not be subject to liability under that Statute except for works which, at the time when being committed, constituted 3URI GU =RUDQ 9XþLQLü ,QWHUQDWLRQDO ZDU DQG KXPDQLWDULDQ ODZ 0HÿXQDURGQR ratno i humanitarno pravo), Belgrade, 2006, p. 445.

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offenses under the jurisdiction of the International Criminal Court, then it means that the principle of legality spreads only to the future time and events (acts) at that time, i.e. to what happens (of course, in the criminal legal sense) after the Rome Statute entered into force. So, the Rome Statute does not contain a provision, such as the one of the Article 4a) of the Criminal Code of Bosnia and Herzegovina, according to which â&#x20AC;&#x153;Articles 3 and 4 of the Code do not prevent the trial or punishment of any person for any act or omission which, at the time when it was committed, was criminal act according to the general principles of international law â&#x20AC;&#x153;. This could not be done by the Rome Statute, since the jurisdiction of the International Criminal Court is ratione temporis limited to the crimes committed after the Rome Statute entered into force, and this is the only thing in accordance with the principle of legality, especially the element of this principle which reads nullum crimen sine lege praevia. Another important conclusion is to be derived from this element of the principle of legality. In fact, the principles of law, even those of international law, cannot constitute incrimination because legal principles, according to their legal nature, do not contain elements of the crime in the sense that requires an element of the principle of legality and which reads nullum crimen sine lege certa. Having, therefore, these reasons in mind it is quite understandable that the Rome Statute does not contain nor it could have contained a provision as cited provision of the Article 4a) of the Criminal Code of BiH, because it would be opposed to the values which are a kind of axioms of criminal legal science. Everything said above represents the starting point at which we should start and bear it in mind when considering the being of the crimes against humanity, determined in the Article RI WKH 5RPH 6WDWXWH 7KLV $UWLFOH IRU WKH ÂżUVW WLPH LQ KXPDQ

Professor Milan Blagojevic, PhD

history, determines the being of the crimes against humanity in a manner that, in a part relevant for this paper, it states the following (italics in the quote is ours):

“Article 7. Crimes against humanity (1) For the purpose of this Statute, expression “crime against humanity” means any of the following acts, committed as a part of a widespread or systematic attack directed against any civilian population, with the knowledge of the attack, such as: (a) murder; (b) extermination; (c) enslavement; (d) deportation or forcible transfer of population; (e) imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; K SHUVHFXWLRQ DJDLQVW DQ\ LGHQWL¿DEOH JURXS RU FROOHFWLYLW\ on political, racial, national, ethnic, cultural, religious, gender – DV GH¿QHG LQ SDUDJUDSK RI WKLV $UWLFOH ± RU DQ\ RWKHU JURXQGV universally recognized as impermissible under international law, undertaken in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

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(i) enforced disappearance of persons; (j) the crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.â&#x20AC;? 7KXV DW WKLV SRLQW IRU WKH ÂżUVW WLPH DQG ZLWK KDYLQJ WKH global importance,13 the being of this crime is determined in a way that its existence requires that any of the given acts actions must be undertaken as a part of a widespread or systematic attack directed against any civilian population with the knowledge about the attack. Only here a widespread or systematic attack directed against a civilian population, as well as the knowledge of such an attack, become elements sine qua non in terms of the rule nullum crimen sine lege praevia, especially in terms of the rule nullum crimen sine lege certa. Here it should be added that only this Statute (by its elements of crimes adopted pursuant to the Article 9 of the Rome Statute, which entered into force on September 9th, 2002) determines the meaning (in a sense of lex certa) of the notion - attack directed against a civilian population. Thus the notion â&#x20AC;&#x153;attack directed against a civilian populationâ&#x20AC;? means behaviour that includes multiple execution RI DFWV GHÂżQHG E\ WKH $UWLFOH SDUDJUDSK RI WKH 6WDWXWH directed against a civil population based on for the purpose of a state policy or policy of some other organization to commit such an attack. According to the elements of the crime, the term â&#x20AC;&#x153;policy to commit such attackâ&#x20AC;? requires the State or organization And that means through the acceptance by the States members of the Statute, which indicates that only then these elements became generally accepted as the elements of the being of this crime.

Professor Milan Blagojevic, PhD

to actively promote or encourage attack against the civilian population. Policy that puts a civilian population as an object of the attack should be implemented (through actions) by the state or organization, whereby, in exceptional circumstances, such a policy can be implemented through the intentional omission of taking actions with the aim to (by this omission) stimulate or encourage attack. However, the conclusion on the existence of a policy of the state or organization cannot be derived only from the lack of action by the state or organization in connection in relation to the attack. Having in mind the mentioned being of the crime against humanity, as well as elements of the crime, it is necessary to point out the strange practice of the International Criminal Court. Namely, the elements of the being of each of the crimes within the jurisdiction of this Court indicate (in our opinion) WKDW DQ DFW FDQQRW EH DW WKH VDPH WLPH OHJDOO\ TXDOLÂżHG DV a crime against humanity and a war crime. However, in the practice of the International Criminal Tribunal for Yugoslavia there were cases of such accusations or adjudication. In the case of LaĹĄvanska valley (against the accused Drago Josipovic and Vladimir Santic) emerged the question whether in the case of the same event accused persons can be accused of crime against humanity and crime of violations of the laws and customs of war. Due to one act the indictment charged the mentioned persons with both crimes. Regarding this, the literature points to the divergent views on the matter, between the Trial and Appeals Chamber of the ICTY:

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â&#x20AC;&#x153;The Trial Chamber of the ICTY believed that in this case we could not talk about concurrence (that is, to use the terminology of the Tribunal, that cumulative accusation cannot be allowed). However, the Appeals Chamber, by the appeal of Prosecution, ........ unanimously amended the stated decision of the Trial Chamber, and found the two accused guilty for both crimes. Explaining this decision, the Appeals Chamber relied on the earlier decisions of the Appeals Chambers on -HOLVLĂź and Celebici case and tests that were applied by the Chambers to discuss this issue. The essence of these tests comes down to the fact that, if the elements of the crimes are not identical, and the accused is charged with both crimes, whereby the established facts can be considered as characteristics of both crimes, then the accused may be found guilty of both crimesâ&#x20AC;?.14 This practice is continued also by the International Criminal Court, with regard to which we would like to single out one example. In the case of this Court, no. ICC-01/0501/08, the Pre-Trial Chamber of the Court on June 15th, 2009 LVVXHG D GHFLVLRQ FRQÂżUPLQJ WKH LQGLFWPHQW DJDLQVW -HDQ 3LHUUH Bemba Gombe related to the crimes committed in the Central African Republic (around October 26th, 2002 until March 15th, 2003). Among other things, the decision of Pre-Trial Chamber FRQÂżUPHG ERWK FRXQWV RI LQGLFWPHQW DQG E\ ZKLFK WKH accused for the same events (the murder of the same persons, for which he is accused to have conducted them together with 3URI 0LRGUDJ 1 6LPRYLĂź SURI 0LODQ %ODJRMHYLĂź $VV 3URI 9ODGLPLU 0 6LPRYLĂź ,QWHUQDWLRQDO &ULPLQDO /DZ 0HĂżXQDURGQR NULYLĂžQR SUDYR), second edition (amended and improved), East Sarajevo, 2013, p.135.

Professor Milan Blagojevic, PhD

Ange-Felix Patasse) is charged with committing a war crime DQG D FULPH DJDLQVW KXPDQLW\ 6SHFLÂżFDOO\ WKH &RXQW RI WKH Indictment (accusation of a war crime) states that the murders listed in the mentioned Count refer to civilians in the Central African Republic, precisely, Bossangoa (last name unknown), %R\ 5DEH DQG RWKHU XQLGHQWLÂżHG LQGLYLGXDOV IROORZHG E\ WKH Count 7 of the same Indictment for the murder of the persons previously mentioned which charges Jean Pierre Bemba with crimes against humanity.15 Due to the fact that war crimes and crimes against humanity include various elements in their beings, exactly this is a reason WR H[FOXGH WKH FRQFXUUHQFH EHWZHHQ WKHVH FULPHV 6SHFLÂżFDOO\ if a particular criminal legal act acquires elements of crimes against humanity, then they (regardless of whether it is war or LQWHUQDO DUPHG FRQĂ&#x20AC;LFW H[FOXGH WKH H[LVWHQFH RI D ZDU FULPH RU the crime of violation of the laws or customs of war (although this crime is also war crime in the broadest sense). Conversely, if there are elements of some of the acts which constitute a war crime, but not the elements of crimes against humanity, then these elements exclude the existence of crimes against humanity. Therefore, in such cases the accused should not be charged with or convicted of a concurrence of these crimes. P. 36 and 37 of Annex 3 of redacted version of the amended indictment for this case, which was signed by the Prosecutor Luis Moreno Okampo on March 30th, 2009. The indictment was (in the English version) available on the website of the International Criminal Court, at http://www.icc-cpi.int/iccdocs/ doc/doc652083.pdf (access of 06/04/2014). The aforementioned decision of WKH 3UH 7ULDO &KDPEHU ZKLFK RQ S LQ WKH (QJOLVK YHUVLRQ FRQÂżUPHG WKH stated counts of the indictment is available at the same website. 15

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III. The principle of legality in criminal law

III.1. Comparative review of constitutional and legal prescribing of this principle in the world In this section, before we move on to the presentation of the essential elements which built the principle of legality in criminal law, we will give a short overview of constitutional solutions (de lege lata) of this principle as they are determined in large legal systems of today. Considering the fact that each of these systems includes a large number of states, we will not present here the adequate solutions from every state, but only some of them, to the extent necessary for the subject of this paper. We shall start with the solutions of the European continental legal system, then we shall present solutions in the Anglo-Saxon legal climate, then those of the Islamic world and ÂżQDOO\ VROXWLRQV RI WKH VWDWHV RI WKH )DU (DVW &KLQD DQG -DSDQ The Article 54 of the Constitution of the Russian Federation determines the prohibition of retroactive effect of laws introducing or strengthening legal liability (paragraph 1 of this Article), while paragraph 2 stipulates the principle of nullum crimen sine lege. In this paragraph it is determined in such a way that it is said that no one can be held responsible for an act which was not determined as a crime at the time when it was committed WKH ÂżUVW VHQWHQFH RI WKLV SDUDJUDSK Constitution of the Fifth French Republic does not include in its normative part provision nullum crimen sine lege, but it is contained in the Declaration of Rights of Man and Citizen of 1789, which is a part of that Constitution based on the provision

Professor Milan Blagojevic, PhD

RI WKH ÂżUVW SDUDJUDSK RI WKH SUHDPEOH RI WKH &RQVWLWXWLRQ RI the French a part of that Constitution. According to the Article 8 of the Declaration nobody can be punished except by law established and published prior to the execution of the act. According to the Article 103, paragraph 2 of the Basic Law of the Federal Republic of Germany a punishment for an act can be prescribed only if the penalty was determined before the act was committed. Here it is pointed out that the said provision (our italics in the quote) â&#x20AC;&#x153;... corresponds to the principle of legality and tightens it to the extent at which it sets up a request of determination of criminal legal norms ....... Further, it prohibits punishments that rely on the common law, the conclusions based on analogy or on the retroactive effect of laws. According to the decision of the Federal Constitutional Court (92, 1, 14 and further) overly extensive interpretation of the crime against the accused is contrary to the Article 103, paragraph 2 of the Constitution...â&#x20AC;?.16 Italian Constitution provides by the Article 25, paragraph 2 that the punishment is not permitted, except under the law that was already in effect when the crime was committed. Finally, in the part relating to the European continental legal climate we shall also mention the solution of the Constitution of Spain. This Constitution contains provisions on this matter in two places. First it is done in the Article 9, paragraph 3, which guarantees the principle of legality (whose essential element is the principle of nullum crimen sine lege); the principle of hierarchy of laws; public disclosure of regulations; prohibition (GLQ Ă˘DUĂžHYLĂź &RQVWLWXWLRQDO 2UJDQL]DWLRQ RI WKH )HGHUDO 5HSXEOLF RI *HUPDQ\ 8VWDYQR XUHĂżHQMH 6DYH]QH 5HSXEOLNH 1MHPDĂžNH Sarajevo, 2005, p. 133. 16

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of retroactive implementation of penalty provisions which are not in favour of or are restrictive to human rights; guarantee of the rule of law; responsibility of public authorities an prohibition of their arbitrary activities. Then, the Article 25, paragraph 1, of the Constitution prescribes that no one may be found guilty or convicted of any act or omission which at the time was not by law determined as crime, breach or administrative breach. Of the states that belong to the Anglo-Saxon legal area, we shall mention two: the USA and Great Britain. Article 1, Section 9, paragraph 3 of the Constitution of the 86$ GHÂżQHV WKH SURKLELWLRQ WR WKH &RQJUHVV WR HQDFW ODZV ex post facto (â&#x20AC;&#x153;1R %LOO RI $WWDLQGHU RU H[ SRVW IDFWR /DZ VKDOO EH passed.â&#x20AC;?). The Federal Constitution also forbids the Member States of the United States to enact laws ex post facto (by the Article 1, Section 10, paragraph 1 of the Constitution of the United States, which in the relevant part, reads: â&#x20AC;&#x153;1R 6WDWH VKDOO .... pass any Bill of Attainder, ex post facto Law ....â&#x20AC;?). In the UK the situation in this regard is rather ambivalent. 6SHFLÂżFDOO\ LQ WKLV FRXQWU\ ex post facto laws are not welcomed, but their enactment is permitted ( referring to the doctrine on the sovereignty of parliament). Thus the British Parliament enacted the Law on war crimes in 1991, which subsequently established the jurisdiction of the British courts over war crimes committed during World War II. Of the states from Islamic world for this occasion we singled out three of them: Pakistan, Iran and Saudi Arabia. In the second part of the Constitution of Pakistan, related to fundamental rights, in Paragraph 12 (a rubrum â&#x20AC;&#x153;3URWHFWLRQ against retroactive punishmentâ&#x20AC;?), it is stipulated that no law

Professor Milan Blagojevic, PhD

is allowed to provide authorization for punishing the person for an act which was not punishable by law at the time when committed by some act or omission. The constitutional organization of the Islamic Republic of Iran is entirely imbued with Islam. There are numerous SURYLVLRQV RI WKH &RQVWLWXWLRQ WKDW FRQÂ¿UP WKLV ERWK LQ KLV introductory part but also in its classical normative part17. For this opportunity we shall single out a provision of the Article 1 of the Constitution, according to which the form of governance in Iran is in the form of Islamic republic, then the Article 2 of the Constitution, according to which the Islamic republic is a system based on the belief in one god, and the Article 4, DFFRUGLQJ WR ZKLFK DOO ODZV FLYLO FULPLQDO Â¿QDQFLDO HWF PXVW be based on Islamic criteria. However, in addition to this, the Article 169 of the Constitution of Iran (this Article has rubrum nulla poena sine lege) prescribes that no act (act or omission) can be considered a crime under the law that is enacted after the crime was committed. (YHQ LQ 6DXGL $UDELD LW LV SRVVLEOH WR Â¿QG LQ WKH IRUPDO sense) the principle of prohibition of subsequent determination of penalties. The Fifth chapter of the Basic Law of March 1st, 1992, which was imposed by the former Saudi King Fahd, with its Article 38, inter alia, prohibits prescribing penalties ex post facto. However, bearing in mind that just in a few previous lines of the same Article it is stipulated that no judgment will 0RUH RQ WKLV LVVXH VHH LQ SURI 0LODQ %ODJRMHYLÃ¼ ,VODPLF FRQVWLWXWLRQDOLVP in Iranian way (Short analysis of the basis of constitutional organization of Iran) (,VODPVNL NRQVWLWXFLRQDOL]DP QD LUDQVNL QDÃ¾LQ .UDWND DQDOL]D RVQRYD XVWDYQRJ XUHÃ¿HQMD ,UDQD)), Banja Luka, 2012.

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be imposed without relying on Sharia law18 WKLV VLJQLÂżFDQWO\ diminished the importance of the above principle. Related to this, further it should have in mind that the judges in Saudi Arabia, as emphasized, have â&#x20AC;&#x153;... unlimited authority to decide on what is a crime and what is the appropriate punishment...â&#x20AC;?, due to which a system of this country is being criticized (and given recommendations to improve the situation) by the United Nations Council for Human Rights19. Current Chinese Constitution (of 1982) does not contain provisions on the principle of nullum crimen, nulla poena sine lege 7KHVH SULQFLSOHV ZHUH SUHVFULEHG IRU WKH ÂżUVW WLPH E\ WKH Criminal Code of 1997) by a comprehensive revision of the criminal law, done in 1997, after which the prohibition on the use of analogy was prescribed accordingly. Japanâ&#x20AC;&#x2122;s Constitution contains an interesting solution on the principle of nulla poena sine lege. It is contained in the Article 39 of the Constitution, whose rubrum literally states nulla poena sine lege. After this, the same Article provides that no person can be found criminally liable for an act which was lawful at the time of committing. This, in turn, means that an act must be determined as illegal before it was done, so that its executor could be found criminally liable. Which is related to the fact that before that, in the Article 1 of the Basic Law, it is prescribed that Quran and the Sunnah of the Prophet Muhammad are the Constitution of Saudi Arabia. 19 See Interim Report of the International Commission of Jurists prepared for the fourth session of the Working Group of the United Nations Council for Human Rights, of September 2008, from which the quote given in this paper is taken (cited according to p. 7 of this Report). The indicated report is available at: www.upr-info.org/.../ICJ_SAU_UPR_S4_2009. 18

Professor Milan Blagojevic, PhD III.2. The content of the principle of legality in criminal law

The principle of legality in criminal law has a different content than the content of the concept of legality in the philosophy of law and the general theory of law. When determining the content of the concept of law the philosophy of law uses the main legal beings, instead of dividing the legal system to legal branches. Among these beings the constitution and the law can be singled out, due to the belief that the constitution is GHÂżQHG DV WKH KLJKHVW JHQHUDO OHJDO DFW ZKLOH WKH ODZ LV VDLG WR be the second act of legal force, after constitution. If these are WKH KLJKHVW JHQHUDO DFWV DQG WKH\ DUH WKHQ ÂżUVW D KLHUDUFK\ between them must be established according to which the law must be in conformity with the constitution, after which other general acts of less legal force then the law must be consistent with the law. This hierarchy, that shows the need of conformity of lower legal acts with the higher ones, represents the essence of legality, while the purpose of all of this is to ensure the unity and concurrence within the legal system.20 And in the general theory of law the legality is, in essential parts, determined in the way in which this is done in the philosophy of law. So it is said that the â&#x20AC;&#x153;Legality (is) the conformity of the lower legal act with the higher legal acts....â&#x20AC;? that is â&#x20AC;&#x153;The word legality or illegality is taken in a broad sense, i.e. not only as a conformity or nonconformity with the law but with every higher act.â&#x20AC;?21 'U 5DGRPLU ' /XNLĂź 6\VWHP RI 3KLORVRSK\ RI /DZ 6LVWHP ÂżOR]RÂżMH SUDYD , Beograd, 1992. p. 417. and 426. 21 'U 5DGRPLU ' /XNLĂź 7KHRU\ RI 6WDWH DQG /DZ II. Theory of Law, third volume 7HRULMD GUĂĽDYH L SUDYD ,, 7HRULMD SUDYD WUHĂźL WRP , Beograd, 1995, str. 159. 20

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In criminal law, the legality has a different content. Although in this branch of law the legality, as we shall see immediately below, contains a request to make the lower legal act in conformity with the higher legal act, it substantially includes some other elements as well. Namely, there is no doubt that, when prescribed by the Constitution that the crimes and penalties for them must be imposed by law, or other regulations in force at the time of the crime, unless a new law or regulation is more lenient to the perpetrator of the crime, such a constitutional solution requires from the legislator not to violate such constitutional provision when enacting law. However, the legality in criminal law, except this, contains some other elements which can be expressed by the following Latin terms: lex scripta, lex praevia, lex certa and lex stricta. Lex scripta is an element of special importance for the subject of this paper. It contains a requirement that the criminal offenses cannot be determined by the unwritten law (custom), but only by the general legal documents written in the form of law. This is the situation with the national law, but that does not mean that this requirement does not apply to international criminal law. On the contrary, the same requirement is set there, little moderated due to the fact that the general international legal act cannot be considered a law, because there is no world legislator. Instead, it is pointed out that “It should not be insisted literally on law, but on the appropriate international legal act (nullum crimen sine actu).22 Therefore, it is rightly pointed out that, when it comes to customs as a source of international criminal law, (our italics in the quote) “... This type of source has only a limited importance =RUDQ 6WRMDQRYLü ,QWHUQDWLRQDO &ULPLQDO /DZ 0HÿXQDURGQR NULYLþQR pravo), script, third edition, Belgrade, 2003, p. 8. 22

Professor Milan Blagojevic, PhD

and scope within international criminal law. Only in those areas where there is no need to establish criminal offenses and criminal sanctions, customary law and general legal principles may have importance of supplementary sources of international criminal law +RZHYHU LQ WKH ÂżHOG RI LQWHUQDWLRQDO FULPLQDO ODZ HVWDEOLVKLQJ WKH LQVWLWXWHV RI WKH JHQHUDO SDUW DQG VSHFLÂżF international criminal acts would not be allowed. This is, not only contrary to the principle of legality, but it is also hard to imagine such examples where there is general agreement of DOO FRXQWULHV FRQÂżUPHG E\ WKH HVWDEOLVKHG SUDFWLFH WKDW LV customâ&#x20AC;?.23 We mention this due to the fact that the verdicts of the Court of BiH, which will be discussed below, act contrary to this requirement of the principle of legality in criminal law, because they extensively call upon the fact that an act is by the custom established as a crime under international criminal law. These claims, however, are not subsequently supported by valid legal arguments, which should not be surprising if we take into account the previously presented content of the term lex scripta. Lex praevia is also of importance to the subject of this paper, and the essence of this element is brought down to the UHTXLUHPHQW WKDW WKH DFW LV GHÂżQHG DV D FULPLQDO RIIHQVH DQG that there is a criminal sanctions prescribed for it by the law which entered into force before the crime was committed. This Ibidem, p. 18, Therefore, when we take into account these arguments, it is legally wrong the understanding expressed in the practice of the European Court of Human Rights (in the case of the Sunday Times v. the United Kingdom), according to which "...a norm of customary law can be recognized DV WKH ODZ LI WZR FRQGLWLRQV DUH IXOÂżOOHG 7KH QRUP PXVW EH VHW LQ DGYDQFH DQG DYDLODEOH FLWHG E\ 9RMLQ 'LPLWULMHYLĂź 'UDJROMXE 3RSRYLĂź 7DWMDQD 3DSLĂź 9HVQD 3HWURYLĂź 7KH ,QWHUQDWLRQDO +XPDQ 5LJKWV /DZ 0HĂżXQDURGQR SUDYR ljudskih prava), Belgrade, 2006, p. 187.

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is an inevitable element in the concept of the rule of law (legal state), because it provides protection from the criminal law, ZLWKRXW ZKLFK WKHUH LV QR OHJDO FHUWDLQW\ 6SHFLÂżFDOO\ WKHUH LV no doubt that the implementation of the criminal law provides legal protection for the most important social values, but the state uses this element to protect us from the criminal law itself. Lex certa is a requirement to precisely determine the being of the crime and the punishment. Therefore, vague formulations should be avoided when prescribing criminal offenses. Lex stricta ÂżUVW VHWV D UHTXHVW WKDW WKH SURYLVLRQV RI JHQHUDO and the special part of criminal law are interpreted and implemented in a way to include only those things to which they refer ,W LV QRW GLIÂżFXOW WR FRQFOXGH WKDW WKH LPSOHPHQWDWLRQ RI this requirement in practice largely depends on to what extent the requirement set by element lex certa for the lawmaker has been accomplished. Consistently following a requirement set in this way lex stricta there arises the requirement (rather a ban) for analogy in criminal law. According to the Rome Statute of the International Criminal Court nobody is to be found guilty of the act which at the time of committing was not a criminal act within the jurisdiction of the Court (Article 22, paragraph 1). By this, the principle of legality is established in a manner consistent with the classic understanding of the effects of this principle. Thus, in the work of the International Criminal Court (ICC) is also valid, as emphasized in the literature: â&#x20AC;&#x153;â&#x20AC;Śthe principle of legality in a manner consistent with the classic understanding of the effects of this principle, which means that it is valid (1) lex scripta, since to make someone

Professor Milan Blagojevic, PhD

criminally liable in terms of the Rome Statute, there is one important condition that his act at the time of committing was determined as a criminal offense under the jurisdiction of the ICC and (2) lex certa, due to the fact that all the crimes within the jurisdiction of the ICC are precisely described. Only under the condition that it is precisely prescribed which VSHFLÂżF DFWLRQV FRQVWLWXWH WKH FULPH D SHUVRQ FKDUJHG ZLWK such actions can be prosecuted before the ICC, whereby the regulations determining the being of the crime must be interpreted restrictively (Article 22 paragraph 2 of the Rome Statute). In addition to these two aspects, directly emerging from the rule nullum crimen sine lege, the Rome Statute (Article 22, paragraph 2) containes an explicit prohibition of the use of analogy, related to the obligation of restrictive, that is, of narrow interpretation of all regulations determining the being of the crime, which establishes the requirement lex stricta.â&#x20AC;?24 Having presented the elements of which the principle of legality in criminal law is built, we shall also remind you of the appropriate solutions in this regard contained in the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 7, paragraph 1 of that Convention stipulates that no one shall be held guilty of a criminal act which did not constitute such an offense at the time of committing, under national or international law, and that the punishment will not be more severe than the one that was applicable at the time of execution of the offense. From this provision of the Convention it can be concluded that an act must be prescribed by law as a criminal offense (with respect 3URI 0LRGUDJ 1 6LPRYLĂź SURI 0LODQ %ODJRMHYLĂź $VV SURI 9ODGLPLU 0 6LPRYLĂź Ibidem, p. 114.

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to the title of this article which reads: “No punishment without law”), or by an international legal act, which entered into force before the offense was committed. Certain confusion is entered by the provision of paragraph 2 of the Article 7, stating that WKLV $UWLFOH GRHV QRW LQÀXHQFH WKH WULDO DQG SXQLVKPHQW RI DQ\ person guilty of any act or omission, if the act was criminal act according to the general principles of law recognized by civilized nations. This part of the aforementioned provision is extensively referred to in the practice of the Court of BiH when it comes to the verdicts in which there is unconstitutional retroactive implementation of incrimination crimes against humanity related to the events of the recent war in Bosnia. Regarding this provision the relevant literature points out that travaux preparatoires it is indicated that it wanted to emphasize that this Article of the Convention does not affect the laws that, under exceptional circumstances at the end of the Second World War, were enacted to punish the perpetrators of crimes committed during this war, and that Article 7 of the Convention does not aim at any legal or moral condemnation of these laws.25 Therefore, this is the meaning and purpose of this provision which, nevertheless, must be objected by the following. Namely, it is in contradiction with the title of the Article 7, which, as we said, is: “No punishment without law”. When it is said law, and obviously it is said in the rubrum of the Article 7, it means that the being of every crime must be determined by the appropriate law which is considered by the Article 7 of the Convention, regardless of whether it is a national D. J. Harris, M. O' Boyle, C. Warbrick: Law of the European Convention on Human Rights, Butterworths, London, Dublin, Edinburgh, 1995, reprinted 1999 and 2000, p. 282.

Professor Milan Blagojevic, PhD

law or the corresponding international agreement (convention, statute). So, not every legal principle, not even those recognized by civilized nations, represent incrimination of any criminal offense, because the principle is not a law understood by the Article 7 of the Convention. Besides, it is contrary to the nature of legal principles. They, as already pointed out, do not specify the content of the being of the crime in the sense that requires an element of the notion of legality called lex certa. Therefore, this is why the provision of the Article 7, paragraph 2 cannot be legal basis for the implementation of incrimination crimes against humanity on the events of the recent war in Bosnia. 7KH FRQ¿UPDWLRQ IRU WKLV LV IRXQG LQ WKH IDFW WKDW QR legal principle to the present does not contain constructions like “attack directed against a civilian population,” “widespread or systematic attack”, or “knowledge on the existence of such an attack,” because these are elements which are not nor could be characteristical for any legal principle, just because it remains only in the plane of principle and does not go into such details due to its content. These structures, as the above presentation showed, were created in the decisions of the Hague Tribunal and the Tribunal for Rwanda, enacted after the war in Bosnia was over. After that they were taken by the Statute of the International Criminal Court, whereby we must not forget that all provisions of the statute, and therefore the given construction as well, are applicable only to those events that occurred after the Rome Statute entered into force.

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IV. Practice of the Court of Bosnia and Herzegovina The practice of the Court of Bosnia and Herzegovina, which is of importance for the subject of this paper can be divided into two groups. One of them is made of the verdicts by this Court which are delivered on the basis of a plea agreement, while the other group consists of the verdicts rendered after the main trial. What is common to both groups is that both of them are connected with the notion of a widespread and systematic attack, as an element of the being of crimes against humanity under the Article 172 of the Criminal Code of Bosnia and Herzegovina. However, the way in which this element â&#x20AC;&#x153;is determinedâ&#x20AC;? in the verdicts from the mentioned groups is what makes them different. Therefore, we will gladly separately analyze those two groups of verdicts in the continuation of this paper. Only a few verdicts ZLOO EH D VXEMHFW RI DQDO\VLV WR WKH H[WHQW VXIÂżFLHQW WR QRWLFH unconstitutional retroactive implementation of incrimination crimes against humanity to events that occurred before the VSHFLÂżHG LQFULPLQDWLRQ LV SUHVFULEHG LQ WKH IRUP FRQWDLQHG LQ the mentioned domestic law, i.e. international criminal law (the Rome Statute of the International Criminal Court). IV.1. Verdicts rendered on the basis of a plea agreement We will present the essence of the verdicts related to the subject of the paper on the examples of two court cases. In WKH ÂżUVW RI WKHP WKH FRXUW RQ WKH EDVLV RI DJUHHPHQW SOHD

Professor Milan Blagojevic, PhD

agreement) between the prosecutor and the accused found in the operative part of the judgment that (our italics in the quote): â&#x20AC;&#x153;... the members of the ARS and the Ministry of Internal Affairs of the Republic of Srpska (MIA RS) have undertaken a widespread and systematic attack against the Bosniak civilians in the UN safe area of Srebrenica, which was in compliance with the state or organizational policy and aimed at implementing that policy...â&#x20AC;?. The Court of BiH, therefore, on the basis of a plea agreement ÂłÂżQGVÂ´ LQ WKH RSHUDWLYH SDUW RI WKH MXGJPHQW MXGJPHQW QR X-KR-10/928 of July 19th, 2010), among others, that this attack is also â&#x20AC;&#x153;in accordance with the state or organizational policy and aimed at implementing that policyâ&#x20AC;?. What is important in this is that in the statement of grounds, in regards to the quoted part, there is no a single word about how widespread and systematic attack (if, indeed, it was such an attack) against the Bosniak civilians in this zone was in accordance with the state or organizational policy and with the aim of its implementation. The Court, however, does not deliver a single reason or evidence on which its statement is based, because the verdict does not reveal anything on what state institution is in TXHVWLRQ ZKDW VWDWH RIÂżFLDO SROLWLFDO RU PLOLWDU\ LV LQYROYHG what the content of the â&#x20AC;&#x153;organizational policyâ&#x20AC;? is, etc, etc. The judgment also lacks valid reasons (as well as the appropriate proofs) that would explain how the court made the conclusion that it was a widespread and systematic attack against civilian population, but also in what way the state (in this case the

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Republic of Srpska) promoted or encouraged the attacks on civilians. We highlight this because, as previously stated, the term “policy to commit such an attack” (according to the elements of the crime by the Rome Statute) requires that the state or organization actively promotes or encourages attacks against civilians, whereby a policy to attack civilians should be implemented (through actions) by the state or organization, and in exceptional circumstances, such a policy can be applied by the intentional omission of undertaking actions in order to in that way (by this omission) stimulate or encourage the attack. However, we must not forget that the conclusion on the existence of a policy of the state or organization cannot be derived only from the absence of action by the state or organization in regard to the attack. Instead of presenting reasons in the above given sense, the &RXUW LV LQ WKH PHQWLRQHG MXGJPHQW VDWLV¿HG ZLWK RQO\ VD\LQJ the following (p.5 of the judgment, our italics in the text, and the names of witnesses are dropped for obvious reasons): ெ7KH H[LVWHQFH RI D ZLGHVSUHDG RU V\VWHPDWLF DWWDFN GRHV QRW involves the use of armed force only, but this attack can include any other form of the abuse of population. In this case, the width or systematic characteristic of the attack emerges from a Directive of March 8th, 1995, GS of ARS and Commandments of July 2nd, 1995, which ordered physical separation of 6UHEUHQLFD IURP äHSD WR SUHYHQW FRPPXQLFDWLRQ EHWZHHQ the enclaves and daily planning of combat activities aimed at creating complete insecurity, intolerance and lack of prospects RI IXUWKHU VXUYLYDO LQ WKHVH HQFODYHV DQG ¿QDOO\ QDUURZLQJ

Professor Milan Blagojevic, PhD

zone of Srebrenica to the downtown area. Even earlier, by the Directive of November 11th, 1992, GS of ARS ordered making the highest losses possible and forced the Muslim population to OHDYH WKH DUHD RI %LUDĂž Ă¤HSD DQG *RUDĂĽGH RIIHULQJ WKH RSWLRQ of disarmament. The accused and the witnesses ............ and .................. also describe in their statements the circumstances under which their unit twice went in the direction of Srebrenica and the way in which it participated in action of capturing Srebrenica, which they entered without resistance because most of the civilian population went to the UN military base LQ 3RWRĂžDUL ORRNLQJ IRU SURWHFWLRQ ZKLOH WKH PLOLWDU\ DJH SRSXODWLRQ UHWUHDWHG LQWR WKH YLOODJHV Ă˘XĂŁQMDUL DQG -DJOLĂź IURP where the breakthrough towards Tuzla started.â&#x20AC;? The above-mentioned two directives, or commandments, according to what is also indicated in the quoted part of the judgment, are no evidence for the conclusion that the Court made on the width and systematic characteristic of the attack. 1DPHO\ WKH RUGHU WR SK\VLFDOO\ VHSDUDWH 6UHEUHQLFD DQG Ă¤HSD represents the legitimate activities of the competent authorities of the Republic of Srpska, because these were the places that have never been demilitarized and from which continuously (for several years during the war) combat attacks against the Republic of Srpska forces were conducted, and like the Serb civilian population in the area was continuously attacked (as generally known facts). For the same reasons the Directive of November 1992 was just a legal act of the competent body of the Republic of Srpska Army, with the aim to cause losses to combat opponents of the Army, which represents a legitimate

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military activity, and not a widespread or systematic attack DJDLQVW WKH FLYLOLDQ SRSXODWLRQ RI 6UHEUHQLFD DQG Ă¤HSD 7KH IDFW that the accused and the witnesses, on whom the Court relies, describe the entry of the Army of the Republic of Srpska units into Srebrenica and occupation of that place, it is not by itself (nor it could be) a proof that this was an attack on the civilian population, bearing in mind the reasons we had previously presented. Therefore these reasons divalue the admission of guilt by the accused in the part relating to the construction of the prosecutor (and later the Court in the indicated judgment) that this was a â&#x20AC;&#x153;widespread and systematic attack against the %RVQLDN FLYLOLDQV IURP WKH 81 VDIH DUHD RI 6UHEUHQLFD ZKLFK attack was in accordance with the state and organizational policy and aimed at implementing this policy...â&#x20AC;?. The Court of Bosnia and Herzegovina after the abovementioned judgment acts similarly in its judgment no. X-KR10/1029 of September 28th 2010, which was delivered on the basis of a plea agreement as well.26 Many other judgments of the Court of BiH, in which the structure of so-called â&#x20AC;&#x153;joint criminal actâ&#x20AC;? is used, are very indicative. Below we shall give only a short excerpt from one of those judgments, with a note that the Court of BiH in a similar manner brings conclusions in other judgments. Thus, in the judgment no. X-KR-08/549-2 of September 10th 2009, delivered on the basis of a plea agreement, the Court of BiH, accepting the Prosecutionâ&#x20AC;&#x2122;s construction of participation in a Both verdicts are available on the website of the Court of BiH, at http://www. sudbih.gov.ba.

Professor Milan Blagojevic, PhD

joint criminal act which, among other things, the accused is charged with, the following is said (our italics): â&#x20AC;&#x153;In the period from the end of April in 1992 until the end of September of the same year, as a part of a widespread and systematic attack conducted by the army and police of the Serbian Republic of Bosnia and Herzegovina and later of the Republic of Srpska directed against the Bosniak and Croatian population in Prijedor municipality, which attack was carried out at the same time period, being aware of a such an attack, and as a reserve policeman, have knowingly and willfully participated in the joint criminal act of civil and PLOLWDU\ DXWKRULWLHV RI WKH PXQLFLSDOLW\ RI 3ULMHGRU LQ RUGHU WR persecute Bosniak and Croatian civilians and commit crimes against them, having the same goal as members of the civil and PLOLWDU\ DXWKRULWLHV RI 3ULMHGRU PXQLFLSDOLW\ DQG ZLWK PLOLWDU\ and civil structures of the Serbian Republic of Bosnia and Herzegovina and the Republic of Srpska afterwards, the goal implied, based on discriminatory intent, the persecution of the Bosniak and Croatian population on political, national, ethnic and religious grounds from the territory controlled by the army and police of the Serbian Republic of Bosnia and Herzegovina, and the Republic of Srpska afterwards....â&#x20AC;?. What is important in the quoted part of the judgment is that the Court of BiH is trying to say that the acts done by the accused are only a part, or a consequence, of â&#x20AC;&#x153;a joint criminal act between civil and military authorities of Prijedor municipality,â&#x20AC;? which in a logical sense should be a sort of premise minor, since she emerges from the premise maior which states that, according to the indictment and this judgment of the Court of BiH, â&#x20AC;&#x153;the

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military and civilian structures of the Serbian Republic of Bosnia and Herzegovina and the Republic of Srpska afterwards had the same goal.â&#x20AC;? The problem is not a fact that the claims of the Prosecution of BiH given in this indictment are then being accepted by the Court of BiH. However, when such a claim is made, then also the proof of it must be given (in the indictment), and when the Court accepts the claim by entering it into the factual substrate of its judgment, then its task is to give the explanation for its attitude when giving the statement of grounds, as well as proofs that undoubtedly support it. Still, there is nothing of the mentioned in this judgment of the Court. Instead of going into adventure of providing the reasons and proofs for the claims LQGLFDWHG WKH &RXUW RI %L+ VHHPV WR EH TXLWH VDWLVÂżHG ZLWK WKH following â&#x20AC;&#x153;explanationâ&#x20AC;? (p. 13 and 14 of the judgment): â&#x20AC;&#x153;The defendant is charged to have, in the relevant period, knowingly and willfully participated in the joint criminal act of civil and military authorities of the municipality of Prijedor, in order to persecute Bosniak and Croatian civilians and commit crimes against them, a) deprive another person of life (murder), d) deportation or forcible transfer of population, e) imprisonment or other severe deprivation of physical liberty oposite to the fundamental rules of international law and k) other inhumane acts of a similar character, committed with an intent to cause great suffering or serious physical or mental injuries or health problems. For the existence of persecution, it is necessary that WKH GHIHQGDQW SHUIRUPV VSHFLÂżHG DFWV ZLWK GLVFULPLQDWRU\ LQWHQW or intent to persecute victims based on political, racial, religious or other prohibited basis, which means that, in addition to the general intent required for the crime against humanity, it is necessary to have the existence of discriminatory intent.â&#x20AC;?

Professor Milan Blagojevic, PhD

Then, the court states in what cases murder, unlawful deportation, imprisonment and other inhumane acts are to be found, but in a single moment it does not explain how the existence of a joint criminal act is determined in the operative part of the judgment, who its participants are, what they previously agreed, etc. Instead, the Court only indicates, on p.14 of the judgment, the following: â&#x20AC;&#x153;Joint criminal act as a form of individual responsibility includes cases in which all participants have the same intention WR DFKLHYH D FRPPRQ JRDO DQG WDNH VSHFLÂżF DFWLRQV DLPHG DW achieving it.â&#x20AC;? :KDW WKLV KDV WR GR ZLWK WKH VSHFLÂżF REMHFW LV QRW FOHDU because the court does not determine in the disposition nor explains in the statement of grounds how the act has happened, who are, beside the defendant, its paticipants (if such a plan existed at all, and if the accused in that case participated in it and, most importantly, on what evidence the existence of such a plan was determined. It is indicative that in the case of this judgment, as well as the judgment which we will discuss below (in the section related to judgments on the basis of the main trial), it was dropped out RI VLJKW WKDW LQ WKH DUHD RI 3ULMHGRU PXQLFLSDOLW\ LQ WKH VSHFLÂżHG WLPH WKHUH UDJHG 6HUE 0XVOLP FRQĂ&#x20AC;LFW ZKLFK HVFDODWHG KHUH also as a result of their tragical mutual animosity of a historical FRQWLQXLW\ 7KH VWUHQJWK RI WKLV FRQĂ&#x20AC;LFW EXW DOVR WKH H[WHQW RI determination and persistency of the Muslim-Croatian forces to occupy Prijedor in a military manner, is evidenced by the

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facts that are being revealed these days. Thus, the information released by Radio and Television of the Republic of Srpska on commemoration service and wreath laying, held on May 30th 2014, on the central memorial panel â&#x20AC;&#x153;To the honorable Crossâ&#x20AC;? in Prijedor, indicates the persons who were killed while defended that city on May 30th 1992. In this regard, the information can be used to offer a conclusion on the kind of continuity of the efforts of the Muslim-Croatian military forces to overmaster Prijedor in 1992. This results from the information which states the following: ŕŻ&#x2020;,Q 3ULMHGRU RQ 0D\ VW RI D 6HUELDQ SROLFHPDQ was killed in Urije, after which the murders and wounding of soldiers on Hambarine happened, as well as an attack on a military convoy in Kozarac, and at dawn on May 30th the â&#x20AC;&#x153;Green Beretsâ&#x20AC;?, the so-called â&#x20AC;&#x153;Patriotic Leagueâ&#x20AC;? and HOS (Croatian Defence Forces) attacked the city from several directions. There were 15 soldiers killed - soldiers and policemen, while 25 were wounded.â&#x20AC;&#x153;27 There is an evidence that the mentioned Serb-Muslim FRQĂ&#x20AC;LFW UDJHG QRW RQO\ LQ WKLV DUHD EXW DOVR LQ 6DUDMHYR ZKHUH Serbian civilians were mercilessly killed. This is distinctively stated by an eye witness of these crimes (protected witness GRM-311), during the main trial in June 2014, in proceedings against General Ratko Mladic. Below we transmit a full quotation of this witness, as given in the report of the news agency Srna, and taken over by the daily newspaper Glas Srpske (our italics in the text): Quoted according to http://www.rtrs.tv/vijesti/vijest.php?id=113425, access of May 30th, 2014. 27

Professor Milan Blagojevic, PhD

â&#x20AC;&#x153;05.06.2014 23:28 | Srna The Hague â&#x20AC;&#x201C; On the trial of former General of the Army of the Republic of Srpska / ARS /Ratko Mladic protected witness GRM-311 described how at the beginning of the war in Sarajevo he was kidnapped 11 times and tortured just because he was a Serb, and that the persons who have done this to him showed him â&#x20AC;&#x153;a bunch of people killed, threatening to him by saying he will end up the same wayâ&#x20AC;?. â&#x20AC;&#x153;Probably, it would kill me mentally. I was beaten every time, and threatened that I should not meet anyoneâ&#x20AC;?, said the witness, describing the ways in which he was tortured by the unknown people. +H WHVWLÂżHG WKDW RQ -DQXDU\ th, 1993 masked persons led KLP WR WKH SLW RQ 3RIDOLFL LQ ZKLFK WKHUH ZHUH FRUSVHV DQG that at the top of the pit he saw the body of a child with the cut off head, on which the cross was engraved, as the media informed. The witness described how on April 27th 1993, on his way to work, a man forced him to enter the car and drove him to WKH 2UWKRGR[ &KXUFK RI WKH +RO\ 7UDQVÂżJXUDWLRQ LQ 1RYR Sarajevo, where he saw three severed human heads hanging on the door. Protected witness, who worked in a factory for hand grenades in a civilian facility in Sarajevo from 1992 to 1994, emphasized that Serbian forces did not held Sarajevo under siege, but only defended their positions. The witness described to have seen the attacks undertaken by the Army of BiH on civilian areas which they controlled, just so that they could accuse the Army of the Republic of Srpska for it. Âł1RW IDU IURP 6DUDMHYR 79 WKHUH ZHUH WZR PRUWDUV RI WKH Army of BiH which operated daily and whose shells were mostly falling at Ĺ vrakino Selo and Hrasno Brdo. Tomorrow, the day after, all media in Sarajevo reporrted that criminals

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from the mountain destroyed Švrakino Selo, citing the number of victims, as well as Hrasno Brdo,” the witness said. He also said that in several occasions he saw action of the mortars of the Army of BiH from the hospital Koševo over the positions of the ARS. “I saw mortars in the hospital several times,” according to a protected witness.”28 IV.2. Verdicts rendered after the main trial In continuation we will analyze three court decisions related to the same criminal case. One of them is the second-instance verdict of August 7th 2007, in the case number X-KRZ-05/04. In connection with this verdict is the decision of the Constitutional Court of BiH in case no. AP 3620/07, after which the same case was followed by the decision of the European Court of Human Rights (in the case of that Court no. 51552/10). A thing common WR DOO WKHVH GHFLVLRQV LV WKH IDFW WKDW WKH\ DOORZHG ÀDJUDQW unconstitutional retroactive implementation of incrimination crimes against humanity under Article 172 of the Criminal Code of Bosnia and Herzegovina in case of criminal events that took place in 1992. IV.2.1. The second-instance verdict of the Court of BiH, number X-KRZ-05/04 of August 7th, 2007 At the beginning of the exposure on the second-instance verdict of the Court of BiH, no. X-KRZ-05/04 of August 7th Quoted according to http://www.glassrpske.com/novosti/vijesti_dana/ Svjedok-U-Sarajevu-11-puta-kidnapovan-i-zlostavljan-jer-je-Srbin/155231. html. Access of June 6th 2014.

Professor Milan Blagojevic, PhD

LW LV QHFHVVDU\ WR JLYH WZR QRWHV 7KH ÂżUVW RQH UHIHUV WR WKH fact that, in this paper, we shall analyze only those sections of the verdict related to the notion of a widespread or systematic attack and implementation of substantive criminal law in the relevant event. The other note indicates that below there will be given lengthy quotes of the mentioned verdict, because in this way we could have better insight into the understanding of this Court in regard to the given issues. In this part of the paper it was also possible, to give a mere interpretation of the corresponding parts of this verdict. However, in this way a reader would be deprived of the whole understanding conception of the Court of BiH, which is why we decided to give the integrated presentation of the relevant parts of the verdict. IV.2.1.1. About the claims from the judgment related to the term of a widespread or systematic attack By delivering the judgment the accused person is found guilty of crimes against humanity under the Article 172, paragraph 1, item h) in relation to the items a), e), f), g) and i) of the Criminal Code of Bosnia and Herzegovina, and it was done in a way that the accused, among other things, did the following (our italics in the quote): â&#x20AC;&#x153;as part of a widespread and systematic attack of the Serbian army and police, Serbian paramilitary formations directed against the Bosniak civilian population in the municipality of Visegrad, having knowledge of such an attack, as a member of the reserve police forces of the Ministry of Internal Affairs of the Republic of Srpska, of Police Station

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Visegrad, in the period from April to July 1992, persecuted Bosniak civilians on political, national, ethnic, cultural and religious grounds, including murder, imprisonment, torture, enforced disappearance of persons and assisting in the rape…” As we can see, the court here establishes the construction of a widespread and systematic attack, for which it gives the explanation in the statement of grounds according to which in order to “…prove this essential element of the criminal offense crimes against humanity the Prosecution proposed that the court should examine the judgments of the Trial and Appeals Chamber of the ICTY in the case Prosecutor v. Mitar Vasiljevic...” and “...to adopt, as determined, facts related to the existence of a widespread and systematic attack (widespread and planned) against the Bosniak civilian population”. The Court partially accepted this proposal of the Prosecutor and accepted (our italics in the quote): ³ VRPH RI WKH IDFWV GHWHUPLQHG LQ WKH ¿QDO MXGJPHQW of the Trial Chamber, our note) in the case of the ICTY Prosecutor v. Mitar Vasiljevic (IT-98-32) which are: -“In the beginning of 1992, citizens of Muslim nationality were disarmed or they were requested to surrender the weapons. At the same time the Serbs began arming and organizing military training”. (i. 41) - “Muslims also tried to organize themselves but they were much less successful in it”. (i. 41) - “From April the 4th the Serbian politicians constantly asked for the police to be divided on the national basis”. (. 42)

Professor Milan Blagojevic, PhD

- â&#x20AC;&#x153;Soon after, the two opposing groups raised barricades DURXQG 9LĂŁHJUDG DIWHU ZKLFK WKH RFFDVLRQDO YLROHQFH VWDUWHG including shooting and shelling.â&#x20AC;? (i. 42) - â&#x20AC;&#x153;Many civilians, fearing for their lives, left their villagesâ&#x20AC;?. (i. 42) ........ - â&#x20AC;&#x153;Shortly after that the convoys were organized after which many villages remained without its non-Serb inhabitantsâ&#x20AC;?. (i. 44) ........ - â&#x20AC;&#x153;On May 19th WKH -1$ ZLWKGUHZ IURP 9LĂŁHJUDG The paramilitary units remained, and right after the army left the city more of those units arrived. A few local Serbs joined them.â&#x20AC;? (i. 45) Âł1RQ 6HUEV ZKR VWD\HG LQ 9LĂŁHJUDG DQG WKRVH ZKR returned to their homes found themselves trapped â&#x20AC;&#x201C; disarmed and left to the mercy of the paramilitary army which operated with the complicity â&#x20AC;&#x201C; or, at least, with the tacit approval â&#x20AC;&#x201C; of the Serbian authorities, especially the police which was already only Serbianâ&#x20AC;?. (i. 47) - â&#x20AC;&#x153;In June 1992 the arbitrary killing of non-Serb civilians beganâ&#x20AC;?. (i. 49) Âł,Q 9LĂŁHJUDG GXULQJ WKLV SHULRG WKHUH ZHUH PDQ\ RWKHU incidents of arbitrary killing of civiliansâ&#x20AC;?. (i. 51)â&#x20AC;?. From the quoted part of the judgment, it is clear that this is just a series of allegations, for which neither reasons nor proofs were offered. Besides, the quoted part contains several contradictions regarding the established structure of a widespread and systematic attack against the Bosniak civilian population, which is imputed to the authorities of the Republic

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of Srpska, and thus to the Republic of Srpska. Therefore, we will refer to them hereinafter. First, it should be noted that the Court recognizes that the â&#x20AC;&#x153;...Muslim citizens were disarmed or asked to turn in their weapons, and thatâ&#x20AC;? ... the two opposing groups UDLVHG EDUULFDGHV DURXQG 9LĂŁHJUDG DIWHU ZKLFK WKH VSRUDGLF violence followed, including shooting and shellingâ&#x20AC;?. This part, in our opinion, clearly indicates two important facts: that the Muslim citizens (i.e., civilians) have previously armed, and WKDW DIWHU WKH DUPLQJ RI ERWK VLGHV WKH 6HUE 0XVOLP FRQĂ&#x20AC;LFW IRU 9LĂŁHJUDG WRRN SODFH 7KH FRQĂ&#x20AC;LFW HVFDODWHG LQ WKH FULWLFDO time (to the extent that there has been a mutual shooting and shelling), as a result of their tragic mutual animosity that (not RQO\ LQ WKH DUHD RI 9LĂŁHJUDG KDV KLVWRULFDO FRQWLQXLW\ GXULQJ which only the form of animosity (from latent to apparent and vice versa) has changed (and is changing). The Court accepts that â&#x20AC;&#x153;Many civiliansâ&#x20AC;Ś, fearing for their lives, left their villagesâ&#x20AC;?, which indicates that people were leaving on their own, with the note that this quote with its content (which does not specify what civilians it refers to) indicates that not only Muslim civilians left, but also the Serbian ones. Special attention should be paid to the part in which the Court accepts that the paramilitary units remained in 9LĂŁHJUDG DV ZHOO DV WKDW PRUH VXFK XQLWV DUULYHG DQG WKDW D IHZ local Serbs joined them. This is pointed out because it refers WR SDUDPLOLWDU\ XQLWV ZKLFK GRHV QRW ÂżW WKH FRQVWUXFWLRQ JLYHQ by the disposition of the mentioned verdict according to which at the relevant time there was â&#x20AC;&#x153;a widespread and systematic attack of the Serbian army and police,â&#x20AC;? because â&#x20AC;&#x153;paramilitary units and a few local Serbs who joined themâ&#x20AC;? cannot represent the Serbian army and police as the armed forces organized by the public authorities. Consequently, there cannot be true the

Professor Milan Blagojevic, PhD

statement accepted in the judgment that the paramilitary army operated with the complicity - or at least the tacit approval â&#x20AC;&#x201C; of the Serbian authorities, especially the police, which was already only Serbian, whereby this judgment lacks the appropriate explanation and proofs for the aforementioned claim. This is in a way proved by the fact that the Court had also accepted those parts of the mentioned judgment of the Tribunal in The Hague, according to which â&#x20AC;&#x153;In June 1992 the arbitrary killing RI QRQ 6HUE FLYLOLDQV KDV DOUHDG\ EHJXQÂ´ DQG Âł,Q 9LĂŁHJUDG during this period, there were many other incidents of arbitrary killing of civiliansâ&#x20AC;?. From what has just been quoted it can be concluded that it was the arbitrary killing of civilians, which excludes systematization, and especially organization of such actions to be done by public authorities. There also lacks a proper explanation in connection with the testimonies of witnesses (p.16 of the judgment of August 7th 2007), which the Court refers to regarding the construction of a widespread and systematic attack of the Serbian army and police. Namely, the testimonies of these witnesses are focused on individual events in which they participated, where ZLWQHVVHV GR QRW JLYH ÂżQGLQJV EHFDXVH WKH\ VLPSO\ GR QRW have them) on whether it was (or it was not) a widespread or systematic attack of the Serbian army and police (organs of public authorities) nor the conclusion can be made in this direction when the testimonis of these witnesses are observed in relation to each other. In this regard, of particular importance are the observations expressed in one part (the one concerning the Serbian police from the mentioned construction) by the Trial &KDPEHU LQ WKH ÂżUVW LQVWDQFH YHUGLFW QXPEHU ; .5 of July 11th ZKLFK ZDV ÂżUVW FDQFHOOHG E\ WKH $SSHDOV Chamber of the Court of BiH (by its decision no. Krz 05/04

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of January 5th 2007), after which it rendered a second-instance verdict of August 7th 6R UHJDUGLQJ WKLV WKH ÂżUVW LQVWDQFH verdict of July 11th 2006 states (our italics in the quote): â&#x20AC;&#x153;>116@ It is also striking to see that the charge concerning the events in this and the other villages along with the Serbian army regularly adds, â&#x20AC;&#x153;and the policeâ&#x20AC;?, although this fact is not FRQÂżUPHG E\ DQ\ WHVWLPRQ\ >143@ The Trial Chamber did not miss a factual circumstance that the witness Almasa as well as other witnesses who described the events in Velji Lug mentioned only Serbian soldiers, thereby describing their weapons, and that they carried the SMB uniform, while not at all reporting the presence of the police, that, as said by several witnesses of the Prosecution, was dressed in a blue uniform (which includes a military blue â&#x20AC;&#x201C; note by the Court). Obviously, the prosecutor was aware of the problem of how WR LQFRUSRUDWH WKH UHVHUYH SROLFH RIÂżFHU KHUH WKH &RXUW JLYHV the personal name of the accused - our note) in these events in which, according to the testimonies of its witnesses, only soldiers paticipated, so he tried to solve this problem in a way to add, to the factual description of the charge in relation to the events in this village, but also the villages Zlijeb and Kuka, the statement that the attack was carried out, beside by the members of the Serbian army, also by the members of the Serbian police regardless of the fact that such a claim was not supported by the testimonies of prosecution witnessesâ&#x20AC;?. :K\ GR ZH GUDZ DWWHQWLRQ WR WKLV SDUW RI WKH ÂżUVW LQVWDQFH verdict? We do this for two reasons. The quoted part is opposite to the claim of the Hague Tribunal that at the time the paramilitary

Professor Milan Blagojevic, PhD

army (i.e., not Serbian army, namely, not by state organized armed formation) â&#x20AC;&#x153;....operated with the complicity - or at least the tacit approval â&#x20AC;&#x201C; of the Serbian authorities, especially the police, who was already only Serbianâ&#x20AC;?, which is the claim accepted by the Court of BiH in the second-instance verdict of August 7th 2007. Another reason is that, beside accepting these claims indicated by the verdict of the Hague Tribunal, not even in the verdict of August 7th 2007, the second-instance Chamber (the Chamber of the Appellate Division of the Court of BiH) offered no valid reasons (or proofs) which would lead to the conclusion that, said using the terminology of the verdict, the Serbian authorities (army and police) conducted an attack against Bosniak civilians. 7KH JLYHQ ÂżUVW LQVWDQFH YHUGLFW RI -XO\ th 2006 is important, besides all previously discussed, also for its statement of grounds based on which we can reliably conclude on the pressure put over the prosecution witnesses in this case, as well as the atmosphere in which this case has been taken over from the jurisdiction of the Court in the Republic of Srpska and transferred to the Prosecution of BiH, where the accused was then indicted of the incrimination crimes against humanity under the Article 172 of the Criminal Code of BiH, and after found guilty of this crime by the Court of BiH. Therefore, at the end of this part we shall give the corresponding part from the statement of grounds of the verdict of July 11th 2006. The Trial Chamber states on p. 21 of the verdict, within paragraphs 43 and 44, the following (our italics in the text) â&#x20AC;&#x153;>43@ .... Testimony of Agic Ibrumsa, who at the main trial FRQÂżUPHG DOWKRXJK QRERG\ DVNHG KHU WKDW VKH ZDV SUHVVXUHG E\

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the President of the Association of Women Victims of War, that she must testify against (then the personal name of the accused is given - our note) like all other women did, and that if is she refused she would lose the pension, undoubtedly leads to a conclusion that part of the prosecution witnesses was instructed in what direction their testimonies should be given before they gave their statements in the Prosecution of BiH. This is indeed noticed in the content of their statements when they stereotypicaly one after another repeated the same answers to the questions of the prosecutor, using the same phrases such as a camp, the accused was in school day and night, or, when describing the conditions of their stay in a primary school, they all said they were sleeping on a concrete Ă&#x20AC;RRU GHVSLWH WKH IDFW DSSDUHQW IURP WKH SKRWR DUFKLYH DQG HYHQ WKHLU RZQ WHVWLPRQLHV WKDW WKH\ ZHUH SODFHG RQ WKH ZRRGHQ Ă&#x20AC;RRU of the basketball gym. >44@ In regard to the circumstance of the pressure imposed on the independence of the Court, the Defense proposed and the Trial Chamber drew evidence examining the request of the Association of Women Victims of War in Sarajevo, no. BiH 85/05 of May 9th 2005, directed to the Pre-Trial Chamber of the Criminal Division, Section I for War Crimes and number: BiH 85/05 of May 11th 2005. From the content of the request of May 9th 2005 it is evident that according to the evidence possessed by the Association and related to the crimes with which was charged (then the personal name of the accused is given - our note) the subject deserves the label â&#x20AC;&#x153;highly sensitiveâ&#x20AC;? and therefore to be prosecuted before the Court of the BiH, while in the proposal for the case (again the personal name of the accused followed - our note) number BH 88/05 of May 13th 2005 it is indicated that the Prosecution of BiH until the act was submitted did not hear any victim or eyewitness to the event, and that â&#x20AC;&#x153;someoneâ&#x20AC;? had a feeling and ordered a hearing

Professor Milan Blagojevic, PhD

for May 10th 2005 to take over the case. This happened by making WKH GHFLVLRQ RI WKLV &RXUW H[ RIÂżFLR QXPEHU .51 RI 0D\ 13th 2005 in which the Court building a different point of view regarding the sensitivity of the case and opposite to the Prosecution of BiH, inter alia, in its arguments called upon the correspondence of the listed Association, in which it is emphasized that the witnesses should present evidence only before the state court (page 3, line 6). Therefore, it seems reasonable to conclude that, if the above Association behaved before the Court, as a professional, LQGHSHQGHQW DQG LPSDUWLDO LQVWLWXWLRQ SHU GHÂżQLWLRQHP WKHQ LW could even easier behave towards its members - the prosecution witnesses, who are usually the victims, in a way to make the testimony for the accused in peius. So, it is a legitimate activity of $VVRFLDWLRQ WR ÂżQG WKH ZLWQHVVHV ZKR ZRXOG JLYH WHVWLPRQ\ LQ WKLV case, but it is not legitimate to direct them on how to testify which LV VRPHWKLQJ WKDW ,EUXPĂŁD FRQYLQFLQJO\ JDYH KHU WHVWLPRQ\ RI The statement made by Cakic Fehima related to the Prosecutorâ&#x20AC;&#x2122;s question regarding her statement that she had enough of everyone being smart is indicative for this question. regarding the prosecutor that she had had enough of everyoneâ&#x20AC;&#x2122;s imaginations. Therefore, the Trial Chamber in assessing the testimony of one part of the SURVHFXWLRQ ZLWQHVVHV QRW RQO\ GXH WR WKLV IDFW KDG D VLJQLÂżFDQW restraint in giving credence to their statementsâ&#x20AC;?. IV.2.1.2. On the implementation of criminal substantive law in the verdict number X-KRZ-05/04 of August 7th 2007 In the implementation of the criminal substantive law in this case the identical point of view is taken in both verdicts, WKH ÂżUVW LQVWDQFH YHUGLFW E\ WKH 7ULDO &KDPEHU RI -XO\ WK

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2006, and the second-instance verdict of August 7th 2007. Namely, in both verdicts, the Court referred to the Article 7 of the European Convention on Human Rights and Fundamental Freedoms, Article 15 of the International Covenant on Civil and Political Rights, Report of the Secretary-General of the United Nations (in relation to the paragraph 2 of the Security Council Resolution no. 808 of May 3rd 1993, paragraphs 34-35 and 4748), the views of the International Law Commission (Comment on draft Code of Crimes against the Peace and Security of 0DQNLQG DV ZHOO DV WR WKH VSHFLÂżF MXGJPHQWV RI WKH 7ULEXQDO in The Hague and the International Criminal Tribunal for Rwanda. It also referred to the Article 4a of the Criminal Code of BiH. This Article is entered into the Criminal Code of BiH by the Law on Amendments to the Criminal Code of Bosnia and Herzegovina, which was adopted by the Parliamentary Assembly of Bosnia and Herzegovina in September 2004, DQG SXEOLVKHG LQ WKH Âł2IÂżFLDO *D]HWWH RI %L+Â´ QR According to this provision â&#x20AC;&#x153;Articles 3 and 4 of this Law shall not prevent the trial nor the punishment of any person for any act or omission which, at the time when it was committed, was considered crime according to the general principles of international lawâ&#x20AC;?. Therefore, referring to the above mentioned documents, both Chambers (the Trial and the second-instance), almost in the identical way afterwards stated that the crimes against humanity can be subsumed under the general principles of international law under the Article 4a) of the Criminal Code of BiH, or under the principles of international law. Considering the identical attitude of both Chambers on this matter, below we shall present only a relevant part of the second-instance verdict of August 7th 2007. So, by that verdict (at p. 41) the following is stated (our italics in the text):

Professor Milan Blagojevic, PhD

ŕŻ&#x2020;&RQVHTXHQWO\ FULPHV DJDLQVW KXPDQLW\ FDQ EH LQ DQ\ FDVH brought under the â&#x20AC;&#x153;general principles of international lawâ&#x20AC;? referred to in the Article 4a) of the CC of BiH. So, regardless of whether it was viewed from the standpoint of customary international law or the standpoint of the â&#x20AC;&#x153;principles of international lawâ&#x20AC;?, there is no doubt that a crime against humanity constituted a criminal offense in the relevant period, WKDW LV WKDW WKH SULQFLSOH RI OHJDOLW\ LV VDWLVÂżHG Hereby, we should not neglect the fact that the criminal acts listed in the Article 172 of the Criminal Code of BiH can be found in the law that was in force at the relevant time (SFRY Criminal Code), and that the acts accused of were punishable under the criminal law which was applicable back then. Finally, regarding the Article 7, paragraph 1 of the ECHR, the Court notes that the implementation of the Article 4a) is aditionally MXVWLÂżHG E\ WKH IDFW WKDW WKH LPSRVHG SHQDOW\ LV FHUWDLQO\ PRUH lenient than the death penalty that was applied at the time of WKH RIIHQVH ZKLFK VDWLVÂżHG WKH LPSOHPHQWDWLRQ RI WKH SULQFLSOH of time constraints of the criminal law. In addition, ruling on the appeal by Abduladhim Maktouf, the Constitutional Court of Bosnia and Herzegovina on March 30th 2007 concluded that in this case the question of implementation of the CC of BiH in the proceedings before the Court of BiH does not constitute a violation of the Article 7, paragraph 1, of the European Convention.â&#x20AC;? By presenting these allegations the Court of BiH completely inaccurately refers to the customary international law, and the principles of the law. The reason for this is the fact

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that it is exactly contrary to the principle of legality to create any criminal offense (its being) through customs. The inability to create a criminal offense in this way results from the fact that it is not possible to determine the established practice nor opinio iuris about whether an act is a criminal offense. As a UHVXOW LW LV LPSRVVLEOH WR ÂżQG D JHQHUDO FRQVHQVXV RQ ZKDW DUH the elements that constitute the being of any criminal offense, including incrimination crimes against humanity. That is why WKH &RXUW RI %L+ FRXOG QRW KDYH LGHQWLÂżHG DQ\ HYLGHQFH IURP which the existence of such generally accepted customs could have been derived, and even if, by a chance, it tried to do it would have turned out to be Sisyphus job. This incrimination, nor any other, cannot be created through legal principles. This is due to the fact that legal principles, by their nature, do not contain (nor they can contain) the details, and exactly the details are needed when prescribing the being of any criminal offense.

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V. On the implementation of law by the Constitutional Court of Bosnia and Herzegovina The Constitutional Court of BiH in its decision no. AP 3620/07 of April 14th 2010 (which refers to the previous second-instance verdict of the Court of BiH, no. X-KRZ-05/04 of August 7th 2007) has not been more closely involved in to give reasons on the implementation of criminal substantive law in this case. Instead, in the relevant part of the decision (paragraph 58) it was referred to the views of this Court concerning the retroactive implementation of incrimination crimes against humanity outlined by decision no. AP 519/07 of January 29th 2010. True, the Court also referred to its decision no. AP 1785/06 of March 30th 2007 (case of Abduladhim Maktouf), but this case was not about incrimination crimes against humanity, but a war crime against civilians. So, the Constitutional Court of BiH in its decision no. AP 3620/07 of April 14th 2010, in a relevant part stated as follows: ŕŻ&#x2020; ,Q UHJDUG WR WKH DSSHOODQWÂśV DOOHJDWLRQV FRQFHUQLQJ the violation of the Article 7 of the European Convention, the Constitutional Court recalls that the same legal issue was considered in its decisions no. AP 1785/06 of March 30th 2007 ... and AP 519/07 of January 29th 2010...... . In its Decision no. AP 1785/06, the Constitutional Court, after a comprehensive analysis of the issue, concluded that the war crimes are â&#x20AC;&#x153;crimes under international law in a general sense of jurisdiction to prosecute so that convictions for such crimes, according to the

Professor Milan Blagojevic, PhD

ODZ WKDW ZDV VXEVHTXHQWO\ SUHVFULEHG DQG ZKLFK GH¿QHG FHUWDLQ acts as criminal and prescribed special criminal sanctions for them, and they were not considered criminal according to the law that was in effect at the time they were committed, would not be contrary to the Article 7 of the European Convention. Also, the Constitutional Court in the cited decision referred to the implementation of the Article 4a of the CC of BiH related to the Article 7, paragraph 2 of the European Convention, and concluded that the question of the implementation of the CC of BiH in the proceedings before the Court of BiH does not constitute a violation of the Article 7 of the European Convention. 59. Having in mind that the challenged judgment was based on the provisions of the Article 4 of the CC of BiH regarding the Article 7, paragraph 2 of the European Convention, and that the Court of BiH gave detailed explanation on the implementation of the above mentioned provisions, the Constitutional Court concerning the appellant’s appeal arguments, instead of giving special explanation of its decision, refers to the explanation and reasons in its decision no. AP 1785/06 of March 30th 2007 and decision no. AP 519/07 of January 29th 2010. because they are entirely related to this decision. Therefore, the Constitutional Court concludes that there is no violation of the appellant’s rights under the Article 7 of the European Convention.” In the case of the Constitutional Court of BiH no. AP 1785/06 the issue was a criminal act of war crime against civilians, but regardless of that, this decision is important because it attempts to impose obligations on the entity courts in BiH to retroactively apply Criminal Code of BiH in such cases, which means the incrimination crimes against humanity under

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this law, as well as to follow the jurisprudence of the Court of BiH in this regard29, and it is also a form of the disturbed precedenting of the law. The Constitutional Court of BiH has tried to do this in the following way (our italics in the text): ŕŻ&#x2020; )RU DOO WKHVH UHDVRQV WKH &RQVWLWXWLRQDO &RXUW WKLQNV that â&#x20AC;&#x153;the lack ofâ&#x20AC;? entity laws in terms of non-stipulation of these acts and the guarantees imposes an additional obligation on the entity courts in a sense that they, when ruling on acts of war crimes, must apply the Criminal Code of Bosnia and Herzegovina and other relevant laws and international instruments applicable in Bosnia and Herzegovina. From this results the obligation of the entity courts to follow the case law of the Court of BiH, as the state court. Otherwise, if acted differently, the entity courts would violate the principle of legal certainty and the rule of lawâ&#x20AC;&#x153;. As we can see, here the Court refers to the principle of the rule of law, but it forgets that precisely this principle, as one of its indispensable elements, contains the prohibition of retroactive implementation of the law where, consistently to this principle, it was not allowed. Considering this it is necessary to remind the readers of the elements that the concept of the rule of law is built of, and thus the concept of the legal state, because today there is no difference in content between the On this issue see Damjan Kaurinovic, ass.prof. Milan Blagojevic: Retroactive effect of criminal law â&#x20AC;&#x201C; current question of court practice in Bosnia nad Herzeovina 3RYUDWQR GHMVWYR NULYLĂžQRJ ]DNRQD Âą DNWXHOQR SLWDQMH VXGVNH prakse u Bosni i Hercegovini), PDJD]LQH 6WUDQL SUDYQL ĂĽLYRW QXPEHU Institute of Comparative Law, Belgrade, 2008, p. 141. 29

Professor Milan Blagojevic, PhD

two. So, the content of the notion of the rule of law is made of the following three elements: the restriction of the overall government; corresponding properties of the law; institutional and procedural guarantees of freedom. Government (each organizational part of it and all the relevant authorities) in the exercise of power should be limited by the Constitution and ODZV 7KH &RQVWLWXWLRQ ÂżUVW DQG IRUHPRVW DQG WKHQ ODZV DUH the basis and the measure (border) of the government bodies. In order to constitute the basis and the measure of behavior not only of the government bodies, but also all other legal entities, WKH VSHFLÂżHG UHJXODWLRQV PXVW KDYH FHUWDLQ SURSHUWLHV ZKLFK are: JHQHUDOLW\ VSHFLÂżFLW\ DQG FODULW\ VWDELOLW\ DQG LQQHU moral values and justice. It is illusory to expect the realization of the above mentioned elements if there are no institutional and procedural guarantees for their achievement, and thus the achievement of human freedom. Procedural guarantees are: prohibition of retroactive implementation of the law (i.e., allowing such effects only to some of its provisions, in exceptional circumstances and in the general interest), as well as the existence of an appropriate legal proceeding in which will be reviewed, not only the legality of the operation and behavior of each legal entity prone to certain state and legal order (which is in the Anglo-Saxon legal terminology called due process of law), but also the questioning whether the general legal acts of lower legal force are in accordance with the general legal acts of higher (stronger) legal force and questioning of the legal validity of the individual legal acts. Finally, the institutional guarantee for the realization of the rule of law, is the independence of the

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judiciary system.30 Given that, as we have seen, the retroactive effect of the law is allowed only by some of its provisions, in exceptional circumstances and in the general interest, it should be emphasized that this is not the matter with the cases we deal with in this paper. This is because in these cases a subsequent law is used (the Criminal Code of BiH of 2003), as a provision that introduces a new incrimination (crimes against humanity). Therefore, in such a situation, it is precisely the principle of the rule of law that requires that such provision must not be applied retroactively, since otherwise it would be ex post facto trial, and this is exactly what happened in these, as in many other cases from the practice of the Court of BiH. Below we will present the relevant part of the decision of the Constitutional Court of BiH in case no. AP 519/07 (decision of January 29th 2010), because in this case a retroactive implementation of incrimination crimes against humanity by the Court of BiH was also applied. So, by this decision the Constitutional Court of BiH introduced the practice of the European Court of Human Rights concerning the interpretation of the Article 7, paragraph 1 of the European Convention. The essence of this courtâ&#x20AC;&#x2122;s views, to which the Constitutional Court of BiH referred by its decision, is brought down to the fact that the Article 7 of the European Convention â&#x20AC;&#x153;... includes the principle that only the law can determine a crime and prescribe The elements of the notion of the rule of law are determined in this way by prof. Kosta Cavoski in his book Law as the art of liberty, Essay on the rule of law (3UDYR NDR XPHĂźH VORERGH 2JOHG R YODGDYLQL SUDYD), second edition, -3 2IÂżFLDO *D]HWWH %HOJUDGH )RU PRUH GHWDLOV RQ WKLV VHH WKH DERYH mentioned book, p. 127-153, as well as Milan Blagojevic, PhD: Control of constitutionality and legality (Kontrola ustavnosti i zakonitosti), magazine ZIPS, no. 1226, Sarajevo, 2011, p. 28 â&#x20AC;&#x201C; 32. 30

Professor Milan Blagojevic, PhD

punishment”, that “Offences and valid punishments must be clearly determined by law”, after which the Constitutional Court of BiH in paragraph 62 gives its opinion, again with a reference to the practice of the European Court of Human Rights, with which it tries to introduce in the area of criminal law something that cannot be defended by the arguments of criminal justice science. It is an understanding according to which the legal gaps in the criminal law should be supplemented by judicial interpretation, which should represent the argument according to which, basicaly, a judicial interpretation can justify a retroactive implementation of incrimination crimes against humanity under the Article 172 of the Criminal Code of BiH on events of the recent war in Bosnia. The Constitutional Court of BiH in that part of the decision of January 29th 2010 says the following (our italics in the text): ெ F 1R PDWWHU KRZ FOHDUO\ GH¿QHG DUH OHJDO QRUPV in any system, including the criminal law, there is also an inevitable judicial interpretation. There will always be a need IRU FODUL¿FDWLRQ RI XQFOHDU LVVXHV DQG adjusting to the changed circumstances. In doing so, the gradual development of the FULPLQDO ODZ E\ ¿OOLQJ OHJDO JDSV ZLWK WKH FRXUW LQWHUSUHWDWLRQ in the countries in which the European Convention is applied, is deeply ingrained and necessary part of the legal tradition. Article 7 of the European Convention cannot be interpreted as prohibiting the gradual resolution of the rules of criminal liability by judicial interpretation on a case-by-case basis, provided that the change that follows is in accordance with the essence of the crime and could reasonably be foreseen...“.

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The Constitutional Court of BiH then, among other things, UHIHUV WR WKH IRORZLQJ ெUHDVRQV´ RXU LWDOLFV LQ WKH WH[W ெ ,Q UHJDUG WR WKH DOOHJDWLRQV LQ WKH DSSHDO ZKLFK GLVFXVVHV the concepts of “more lenient” and “lenient sentence”, as well as “retroactive implementation of the law”, the Constitutional Court refers to the explanation that was presented on the same matter in the case no. AP 1785/06 .. ... In the above decision, the Constitutional Court has expressed the view that paragraph 2, the Article 7 of the European Convention refers to the “general legal principles of civilized nations”, and that provision of the Article III/3. b) of the Constitution of Bosnia and Herzegovina stipulates that the “general principles of international law are an integral part of the legal order of Bosnia and Herzegovina and its entities. This provision shows that these principles are an integral part of the legal order of Bosnia and Herzegovina, even ZLWKRXW VSHFLDO UDWL¿FDWLRQ RI FRQYHQWLRQV DQG RWKHU GRFXPHQWV that govern their use, and, thus, the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the territory of the Former Yugoslavia in 1993.... . Furthermore, the Constitutional Court holds the view that war crimes are “crimes under international law” in the universal sense of competence to prosecute, so that convictions for such acts, according to the law that subsequently prescribed and determined certain acts as criminal and prescribed special criminal sanction, and which were not considered so under the legislation that was in force at the time the acts were committed, would not be contrary to the Article 7, paragraph 1 of the European Convention”.

Professor Milan Blagojevic, PhD

From the quoted text it can be concluded that this is a series RI VWDWHPHQWV ZKLFK KDYH QRW EHHQ SURSHUO\ OHJDOO\ MXVWLÂżHG EHFDXVH WKH\ FDQQRW EH H[SODLQHG LQ WKDW ZD\ 6SHFLÂżFDOO\ ZKHQ referring to the general legal principles of civilized nations, in terms of the Article 7, paragraph 2 of the European Convention, the Constitutional Court of BiH fails to notice the fact that they are legal principles and that they cannot be used to determine the elements of a being of any criminal offense, nor thus crimes against humanity. The Constitutional Court, referring to the Statute of the Hague Tribunal, further misses to see that the incrimination of crimes against humanity, determined by that Statute (according to the letter of the Statute, and not by the practice of the Tribunal in the Hague) do not contain a widespread or systematic attack as an element of the being of a crime. Finally, the Constitutional Court Ă&#x20AC;DJUDQWO\ LQ WKH TXRWHG SDUW RI LWV GHFLVLRQ YLRODWHV WKH SULQFLSOH of the rule of law on which the constitutional order of BiH is based, and in which the unconstitutionality of the retroactive implementation of incrimination crimes against humanity under WKH $UWLFOH RI WKH &ULPLQDO &RGH RI %L+ LV UHĂ&#x20AC;HFWHG LQ FDVHV VXFK DV WKRVH ZH KDYH GHDOW ZLWK LQ WKLV SDSHU 6SHFLÂżFDOO\ ZH said a moment ago that there is no rule of law if the retroactive implementation of the law is allowed in parts where it is not permitted, and just such an implementation of the mentioned incrimination is wanted to be allowed by the Constitutional Court of BiH when it states in the quoted part of its decision â&#x20AC;&#x153;... that convictions for such acts, according to the law which was subsequently prescribed and determined certain acts as criminal and prescribed special criminal sanction, and which had not been found crimes according to the legislation that was in force at the time the acts were committed, would not be contrary to the Article 7, paragraph 1 of the European Conventionâ&#x20AC;?.

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VI. On the implementation of law by the European Court of Human Rights The European Court of Human Rights in the decision on the same case (decision of August 26th 2010 on application number 51552/10) was, unfortunately, guided by the â&#x20AC;&#x153;argumentsâ&#x20AC;? which essentially corresponded to the arguments of the Constitutional &RXUW RI %L+ DQG WKH &RXUW RI %L+ 6SHFLÂżFDOO\ LQ WKH UHOHYDQW part of the aforementioned decision of the European Court of Human Rights the following is stated: ŕŻ&#x2020; 7KH &RXUW REVHUYHV WKDW LQ WKH DSSOLFDQW ZDV convicted of persecution as a crime against humanity in relation to the offenses committed in 1992. As these acts did not constitute a crime against humanity under the domestic law until the entry into force of the Criminal Code of 2003 â&#x20AC;? it is evident from the documents listed above in items 8-13 that these acts, at the time of committing, represented a crime against humanity under the international law. In this sense, it can be noticed that in this case all the constituent elements of crime against humanity are met: the disputed acts are performed in the context of a widespread and systematic attack directed against a civilian population and the applicant was aware of these attacks... . 25. The Court concludes that the acts of the applicant, at the time when they were committed, represented criminal offenses GHÂżQHG ZLWK VXIÂżFLHQW DFFHVVLELOLW\ DQG IRUHVHHDELOLW\ XQGHU the international law.â&#x20AC;&#x153;

Professor Milan Blagojevic, PhD

It is seen from the quoted part of the mentioned decision that the European Court of Human Rights refers to several international documents (previously stated in items 8-13 of the decision). These are the Statute of the International Criminal Tribunal at Nuremberg, Resolution 95 (I) of the General $VVHPEO\ RI WKH 8QLWHG 1DWLRQV &RQYHQWLRQ RQ WKH DI¿UPDWLRQ of the principles of international law recognized in the Statute of the Nuremberg Tribunal, then the Nuremberg principles, adopted by the International Law Commission in 1950, the Convention on Non-applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Resolution no. 827 of the United Nations Security Council of May 25th 1993, and the Article 7, paragraph 1, of the Rome Statute of the International Criminal Court. Referring to the above listed documents, the European Court of Human Rights fails to see that until the adoption of the Rome Statute of the International Criminal Court a being of the crimes against humanity was QRW VSHFL¿HG LQ WKH ZD\ LW ZDV GRQH LQ WKH &ULPLQDO &RGH of BiH. This is due to the fact that until the adoption of the Rome Statute, the being of crimes against humanity mentioned in any of the documents that the European Court of Human Rights refered to, did not contain elements of a widespread and systematic attack against a civilian population, nor elements that would show that the offender had a knowledge of such an attack. Therefore, the claim of the European Court of Human Rights that this act during the recent war in Bosnia and Herzegovina in this form constituted a crime against humanity is legally unfounded, because in the form prescribed by the Criminal Code of BiH it appeared only after the end of the war, ¿UVW E\ DGRSWLQJ WKH 5RPH 6WDWXWH RI WKH ,QWHUQDWLRQDO &ULPLQDO Court, from which it was then transferred to the Criminal Code

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of BiH. For these reasons, it is also legally unfounded another claim by the European Court of Human Rights, according to which the applicant’s acts, at the time when committed, constituted, as unsupportedly claimed by this court, “... the act GH¿QHG ZLWK VXI¿FLHQW DFFHVVLELOLW\ DQG IRUHVHHDELOLW\ XQGHU the international law”.

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VII. Disturbed precedenting of the Law in practice

VII.1. Introductory remarks In the introductory part of this monograph we have indicated that, after the chapter on the implementation of law by the European Court of Human Rights concerning the incrimination crimes against humanity, we shall prove by mentioning case from practice, and despite the fact that it represents an example of quasi-law, how understandings of this court are canonized (as well as understanding by the Tribunal in the Hague). Given this attitude of the Court towards these conceptions, what follows is not just description of the process of canonization, but it is a concrete (scholastic) example of disturbed precedenting of the law. The case we are referring to below, to the extent relevant to the issues we deal with in this monograph, is important in several ways. Namely, we shall see in this case, as we have seen in the examples of cases that had already been analyzed, that allegations of widespread and systematic attack of the Army of the Republic of Srpska and other armed forces of the Republic of Srpska against the civilian population are put IRUWK ÂżUVW LQ WKH pronouncements of judgment of the Court of BiH (which represents criminal and legal conviction of not only LQGLYLGXDOO\ VSHFLÂżHG QDWXUDO SHUVRQV WR ZKR WKHVH MXGJPHQWV refer but also the same kind of condemnation of the Republic of Srpska). However, the reasoning of the judgment after that offers no valid evidence or argument for such claims. Referring

Professor Milan Blagojevic, PhD

in these judgments to the relevant parts of the judgments of the European Court of Human Rights and War Crimes Tribunal in the Hague is defective, since the judgments of those institutions are also defective. Unsoundness of such behavior is the result of persistent, legally unfounded insistence on the fact that the crimes (in this case, crimes against humanity) can be determined through legal principles, i.e. custom. Therein, this claim also lacks valid arguments, which should not be a surprise due to the fact that the being of crimes against humanity is not derived from a legal principle nor the result of customary behaviour. Instead, the content of being of this crime, as it exists in the Article 172 of the Criminal Code of BiH (especially concerning the widespread and systematic attack against civilian population and knowledge of the perpetrator of such attack), was made through contracting, adoption and entry into force of the Rome Statute of the International Criminal Court. This is, among other things, clearly indicated by the fact, which we have already pointed out31 WKDW WKH VSHFLÂżF PHDQLQJ LQ WHUPV RI WKH SULQFLSOH lex certa) of the notion attack (widespread or systematic) directed against the civilian population, as well as the policy to commit such attack, has been determined in the elements of the crime, adopted pursuant to the Article 9 of the Rome Statute. VII.2. Judgment of the Court of BiH in the case of WKH 3URVHFXWRUÂśV 2IÂżFH RI %L+ DJDLQVW 5DWNR 'URQMDN This case consists of two judgments of the Court of BiH. 2QH RI WKHP LV WKH MXGJPHQW RI WKH 7ULDO &KDPEHU ÂżUVW See exposition in chapter â&#x20AC;&#x153;II.3. Period from entering into force of the Rome Statute of the International Criminal Courtâ&#x20AC;?. 31

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instance judgement), No. S1 1 K 003420 10 Kri (H-KR-09/684) from 1st June, 2012, and the second one is the judgment of the Appellate Division of the Court of BiH (second-instance judgment), No. S1 1 K 003420 12 Krz 7 of 21st February, 2013. First-instance judgment found Ratko Dronjak guilty of, among other things, crimes against humanity determined by the Article 172 of the Criminal Code of BiH due to which he was sentenced to imprisonment for seven years. Second instance YHUGLFW DOWHUHG WKH ÂżUVW LQVWDQFH MXGJPHQW LQ D ZD\ WKDW WKH defendant Ratko Dronjak was found guilty of the persecution as a form of execution of the criminal offense crimes against humanity under the Article 172 of the Criminal Code of BiH, for which he was sentenced by the second-instance judgment to imprisonment of ten years. $OWKRXJK WKH ÂżUVW LQVWDQFH MXGJPHQW ZDV DOWHUHG E\ WKH second-instance judgment in the sense that we have previously indicated, there are three things that these judgments have in common. One of them is the fact that the second-instance judgment accept the existence of a widespread or systematic attack of the Army of the Republic of Srpska and the Police of the Republic of Srpska against the Muslim, Croatian and other non-Serb civilian population, in the way this alleged DWWDFN KDV EHHQ GHWHUPLQHG E\ WKH ÂżUVW LQVWDQFH MXGJPHQW DV ZHOO DV WKH ÂłDUJXPHQWVÂ´ JLYHQ E\ WKH ÂżUVW LQVWDQFH MXGJPHQW explaining why the defendant may be found guilty of crimes against humanity under the Article 172 of the Criminal Code of BiH. The second thing these judgments have in common is the fact that in both of them the Court of BiH, regarding the existence of the alleged widespread and systematic attack by the Army and Police of the Republic of Srpska, as well as the â&#x20AC;&#x153;legal possibilitiesâ&#x20AC;? for implementation of the given

Professor Milan Blagojevic, PhD

incrimination, calls for â&#x20AC;&#x153;argumentationâ&#x20AC;? given related to these issues by the Hague Tribunal or the European Court of Human Rights in their decisions. Finally, the third thing the judgments have in common, even when its makers are not aware of it, is the need to use such judgments to present the Republic of Srpska and its institutions (state leadership, Army and Police of the Republic of Srpska) as criminal entities. This need is SULPDULO\ PDQLIHVWHG RXWVLGH E\ WKH ÂżUVW LQVWDQFH MXGJPHQW which, as we will show below, states that the actions of LQGLYLGXDOO\ VSHFLÂżHG QDWXUDO SHUVRQ DUH GRQH Âł in the context RI D ZLGHVSUHDG DQG V\VWHPDWLF DWWDFN E\ WKH $UP\ DQG 3ROLFH of the Republic of Srpska directed against a civilian population and with that personâ&#x20AC;&#x2122;s awareness of such an attackâ&#x20AC;?. When the things are put in this way, and they are put initially in the LQGLFWPHQW LVVXHG E\ WKH 3URVHFXWRUÂśV 2IÂżFH RI %L+ DQG WKHQ LQ WKH ÂżUVW LQVWDQFH MXGJPHQW E\ WKH &RXUW RI %L+ DQG ZKHQ WKH\ DUH DIWHU WKDW DFFHSWHG DV VXFK DQG FRQÂżUPHG E\ WKH VHFRQG instance judgment of the Court of BiH, then this, without any GRXEWV UHĂ&#x20AC;HFWV WKH QHHG WR FULPLQDOO\ DQG OHJDOO\ SURVHFXWH or adjudicate, the Republic of Srpska as well. Thereby, the Republic of Srpska is not allowed to defend itself against such accusations, which is defective practice which the Court of BiH undertook from the Tribunal in The Hague, and thus it represents a kind of disturbed precedenting of the law. The case we are referring to below is only a tile in a mosaic of such judgments against the Republic of Srpska. It is related to the area that represents the western part of the Republic of Srpska. When we add to this other judgments of the Court of BiH in other cases, related to the other parts of the territory of the Republic of Srpska, the cases in which the Republic of Srpska was found guilty of incrimination crimes against humanity through indictments against the individually

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VSHFLÂżHG QDWXUDO SHUVRQV ZH FDQ IRUP D PRVDLF RQ WKH EDVLV RI which the ignorant of the essence of such an unconstitutional and illegal behavior may conclude that the Republic of Srpska is a criminal creation, which is not true. At the end of the process in the case of BiH Prosecutorâ&#x20AC;&#x2122;s 2IÂżFH DJDLQVW 5DWNR 'URQMDN WKHUH FRPHV WKH GHFLVLRQ RI WKH Constitutional Court of BiH by which, as in the case of the Court of BiH number H-KRZ-05/04, which we have already DQDO\]HG WKH &RQVWLWXWLRQDO &RXUW RI %L+ UH HQDEOHG Ă&#x20AC;DJUDQW unconstitutional retroactive implementation of incrimination crimes against humanity under the Article 172 of the Criminal Code of BiH. In doing so, the Constitutional Court of BiH for the purpose of reasoning its decision assumes (or rather, canonizes) the appropriate â&#x20AC;&#x153;argumentsâ&#x20AC;? of the European Court of Human Rights, on the basis of which this court, legally groundless, believes that the incrimination crimes against humanity, with the content of being of that crime prescribed by the Criminal Code of BiH, existed at the time of the last war in BiH. The continuation of this chapter will be divided into three SDUWV ,Q WKH ÂżUVW RI WKHP ZH VKDOO SUHVHQW WKH FRUUHVSRQGLQJ SDUWV RI WKH ÂżUVW LQVWDQFH MXGJPHQW RI WKH &RXUW RI %L+ LQ WKH FDVH RI 3URVHFXWRUÂśV 2IÂżFH RI %L+ DJDLQVW 5DWNR 'URQMDN whereby we will criticize not only those parts of the said judgment, but also the relevant parts of the judgments of the Hague Tribunal and the European Court of Human Rights ZKLFK WKH &RXUW RI %L+ UHIHUV WR LQ WKH ÂżUVW LQVWDQFH MXGJPHQW Then we shall expose relevant parts of the second-instance judgment in the same case of the Court of BiH, after which WKH ÂżQDO SDUW RI WKLV FKDSWHU VKDOO LQFOXGH D EULHI DQDO\VLV RI the decision of the Constitutional Court of BiH adopted in the proceedings on the appeal in this case.

Professor Milan Blagojevic, PhD

VII.2.1. First-instance judgment of the Court of BiH, no. S1 1 K 003420 10 Kri (X-KR-09/684) of 1st June, 2012, and the relevant decisions by the Hague Tribunal and the European Court of Human Rights 'HIHFWV LQFOXGHG LQ WKH ÂżUVW LQVWDQFH MXGJPHQW RI WKH &RXUW RI BiH which we are talking about below can not be fully explained without bringing it in a relationship with the relevant decisions of the Hague Tribunal in the cases The Prosecutor vs. Dusko Tadic and the Prosecutor vs. Radoslav Brdjanin, as well as the decisions of the European Court of Human Rights in the case Boban 6LPVLF DJDLQVW %RVQLD DQG +HU]HJRYLQD 6SHFLÂżFDOO\ GHIHFWV from the judgment of the Court of BiH are the result of defects contained in the decisions of the Tribunal in the Hague and the European Court of Human Rights in the mentioned cases. Since the Court of BiH in the stated judgment uses the â&#x20AC;&#x153;reasonsâ&#x20AC;? given by those decisions in order to â&#x20AC;&#x153;explainâ&#x20AC;? that a defendant may be found guilty of incrimination crimes against humanity (cases the Prosecutor vs. Dusko Tadic and Boban Simsic against Bosnia and Herzegovina), or to â&#x20AC;&#x153;explainâ&#x20AC;? the existence of the alleged widespread and systematic attack against a civilian population (the Prosecutor vs. Radoslav Brdjanin), we shall also criticize, at the appropriate places below, the mentioned decisions of the Tribunal in the Hague and the European Court of Human Rights. The pronouncement of judgment of 1st June, 2012, in its factual substrate, as well as in other cases of this kind, begins with a stereotypical formulation. It founds a defendant guilty of (our italics in the quote):

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à¯&#x2020;,Q WKH SHULRG IURP 0D\ XQWLO WKH HQG RI LQ Bosnia and Herzegovina during the war as part of a widespread RU V\VWHPDWLF DWWDFN RI WKH $UP\ DQG 3ROLFH RI WKH 5HSXEOLF of Srpska as well as the paramilitary formations directed against the civilian population in the Autonomous Region of Krajina (ARK), which was established by the Decision of the Assembly of the people of Serbian nationality in 1991 which was supposed to consist of 19 municipalities, including Drvar, Kulen Vakuf, Bosanski Petrovac, Kljuc, Sanski Most, Kupres, Bosanska Krupa, in order to persecute Muslims, Croats and other non-Serb population from the Autonomous region of Krajina, which lasted from May 1992 to May 1993, and being aware of such an attack ... â&#x20AC;&#x153;. The quoted part (the beginning) of the factual substratum RI WKH SURQRXQFHPHQW RI WKH Â¿UVW LQVWDQFH MXGJPHQW UHSUHVHQWV therefore, a framework within which the Court of BiH then SODFHG VHYHUDO LQGLYLGXDO DFWLRQV RI WKH DFFXVHG WR Â¿QG KLP at the end of the verdict, also guilty of incrimination crimes against humanity under the Article 172 of the Criminal Code of BiH. These individual actions are not the subject of this paper, but only the mentioned framework because without it there LV QR VSHFLÂ¿HG LQFULPLQDWLRQ ZKLFK LV WKH RQO\ VXEMHFW RI RXU interest. Regarding this, at the beginning it is necessary to point out two contradictions contained in the above quote. One of them concerns the claims of the Court on the character of the attack which, according to the Court, happened against the civilian population. Namely, the Court did not say that the alleged attack was widespread and systematic, but â&#x20AC;&#x153;widespread or V\VWHPDWLFÂ´ ZKLFK ZDV WKHQ FRQÂ¿UPHG E\ WKH VHFRQG LQVWDQFH

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judgment of the Court of BiH in this case. The thing about this that represents a contradiction is the used conjunction “or” (not the conjunction “and”) regarding the notions of widespread, i.e. systematic attack, which does not show clearly what in fact the Court thinks about the character of the alleged attack. According to the Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission of the United Nations at its 48th session in 1996, the notion of a widespread attack indicates that these are the acts directed against a large number of victims. This excludes from this notion an act of the offender taken on its own initiative and directed at an individual victim. Unlike the concept of a widespread attack, the concept of a systematic attack, according to the same Draft Code of the International Law Commission means that the individual actions of the attack have been taken in accordance with previously designed plan or policy, which in turn implies the existence of a particular organization (as the creator of such a plan or policy) that has control over some area. This organization can be a state one, but not necessarily, because it can even be the organization exercising real power on the ground and it is not a state (e.g. a terrorist organization). The aim of this particular idea is to exclude random attacks on the civilian population which have not been taken as part of a broader plan or policy32. Having in mind the foregoing, it is unclear what kind of attack against the civilian population the Court had in mind, that is, whether the Court referred to widespread or systematic attack. From this we can conclude something that is more important than the above omission of 32 More on this see in: International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind with commentaries 1996, Yearbook

of the International Law Commission, 1996, vol. II, Part Two.

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the Court. Namely, it is actually obvious that the Court (and WKH 3URVHFXWRUÂśV 2IÂżFH RI %L+ LQ WKH LQGLFWPHQW LQ WKLV VHFWLRQ XVH RQO\ VSHFLÂżF SUH SUHSDUHG WH[W WHPSODWH ZKLFK LV XVHG DV a template form (according to a computer copy-paste model) in all cases of this kind. Second contradiction is related to the time interval in which the alleged widespread or systematic attack against the civilian population happened. In fact, in the quoted part of the ÂżUVW LQVWDQFH MXGJPHQW SURQRXQFHPHQW DQG WKLV LV FRQÂżUPHG by the second-instance judgment of the Court of BiH, of 21st February, 2013) it is initially said: ŕŻ&#x2020;,Q WKH SHULRG IURP 0D\ XQWLO WKH HQG RI LQ Bosnia and Herzegovina during the war as part of a widespread RU V\VWHPDWLF DWWDFN RI WKH $UP\ DQG 3ROLFH RI WKH 5HSXEOLF of Srpska and the paramilitary formations directed against the civilian population in the Autonomous Region of Krajina (ARK) .. . â&#x20AC;&#x153;. This would mean that the said attack existed from May XQWLO WKH HQG RI +RZHYHU DIWHU WKDW WKH ÂżQDO SDUW RI the above quote says: ŕŻ&#x2020; in order to persecute Muslims, Croats and other nonSerbs from the territory of the Autonomous Region of Krajina, which lasted from May 1992 to May 1993, and being aware of such an attack...â&#x20AC;?. So, from this part it can be concluded that the said attack lasted from May 1992 to May 1993. This contradiction was tried to be eliminated by the Trial Chamber by stating the

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IROORZLQJ ZKHQ UHDVRQLQJ WKH ÂżUVW LQVWDQFH MXGJPHQW RI st June 2012 (p. 26, our italics in the quote): ŕŻ&#x2020; +RZHYHU UHJDUGLQJ WKH H[LVWHQFH RI WKH DWWDFN RQ the civilian population in the period from May 1993 until the end of 1995, it should be noted that the defense successfully UHIXWHG WKH 3URVHFXWLRQÂśV WKHVLV WKDW LV WKH &RXUW GLG QRW ÂżQG it proven that in the quoted period, there was an attack on the civilian population.â&#x20AC;? +DYLQJ LQ PLQG WKH DERYH TXRWHG SDUW RI WKH ÂżUVW LQVWDQFH verdict, there is a very logical question then is why the Court of BiH at the beginning of the operative part of this judgment in the factual substratum nevertheless said the words: â&#x20AC;&#x153;In the period from May 1992 until the end of 1995 in Bosnia and Herzegovina during the war as part of a widespread or systematic attack of the $UP\ DQG 3ROLFH RI WKH 5HSXEOLF RI 6USVND and the paramilitary formations directed against the civilian population in the Autonomous Region of Krajina (ARK) ...â&#x20AC;?. In our opinion, there are two possible explanations for this. One of them is that which we have already mentioned, and which says that also in this SDUW WKH &RXUW RI %L+ RQO\ WDNHV RYHU D VSHFLÂżF SUH SUHSDUHG WHPSODWH IURP WKH LQGLFWPHQWV RI WKH 3URVHFXWRUÂśV 2IÂżFH RI %L+ It is, as we can see, a kind of standardized form in all cases of this kind. Another explanation is that in this way (and through this judgment as one of the tiles of mosaic of judgments against the Republic of Srpska which we have previously discussed) the picture is being maintained based on which we should later draw conclusions according to which the Republic of Srpska existed as a criminal creation during the war in Bosnia and Herzegovina.

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After pointing out these contradictions, we will focus RXU DWWHQWLRQ RQ WZR FODLPV LQ WKH ÂżUVW LQVWDQFH MXGJPHQW RI 1st June, 2012. One of them is the claim of a â&#x20AC;&#x153;widespread or systematic attack of the Army and Police of the Republic of Srpskaâ&#x20AC;? against the civilian population, i.e. the claim that these state bodies of the Republic of Srpska (therefore the Republic of Srpska itself) attacked the Muslim, Croatian and other nonSerb civilian population of the given area. According to the second claim, the defendant (and thus the Republic of Srpska) may be held guilty of incrimination crimes against humanity under the Article 172 of the Criminal Code of Bosnia and Herzegovina, despite the fact that this incrimination was not GHÂżQHG DV D FULPLQDO RIIHQVH GXULQJ WKH ZDU LQ %L+ 5HODWHG WR WKH ÂżUVW FODLP WKH &RXUW RI %L+ LQ WKH ÂżUVW instance judgment refers to the judgment of the Trial Chamber of the Hague Tribunal in the case of the Prosecutor versus 5DGRVODY %UGMDQLQ ,Q WKLV UHJDUG WKH ÂżUVW LQVWDQFH MXGJPHQW on p. 41 and 42 states (our italics in the text): ŕŻ&#x2020; ZKHQ LW FRPHV WR WKH UHOHYDQW HYHQWV ZH VKRXOG start with the decision of the Court number X-KR-09/684 of 13th October, 2010, by which a larger number of facts established by the judgment of the ICTY Trial Chamber in the case of the Prosecutor vs. Radoslav Brdjanin was accepted. 180. Namely, as GHÂżQHG LQ WKH DERYH PHQWLRQHG IDFWV, the establishment of the ARK represented only a part of the overall political developments in Bosnia and Herzegovina since 1991. In accordance with these facts, which among other things, GHÂżQH WKDW WKH OHDGHUVKLS RI %RVQLDQ 6HUEV PDGH D SODQ WR

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link areas in BiH with the Serbian population and to create a separate Bosnian Serb state based on these areas, which meant to cause fear and use force to remove most of non-Serbs from the territory in which they planned to establish the state of Bosnian Serbs. )XUWKHUPRUH DIWHU WKH VWUDWHJLF SODQV KDG EHHQ GHÂżQHG as pointed out above, the next phase in their implementation foresaw the establishment of Serbian autonomous regions, among which was the ARK. After its establishment there were certain actions undertaken, apparently aimed at the implementation of a strategic plan. Among other things, they implied the imposition of such life conditions to non-Serbs in Krajina, whose aim was to permanently remove the non-Serb population, or the destruction of the homes of non-Serbs, and allocation of homes that were not destroyed to Serbian refugees. 182. Also, besides destroying homes, the implementation of the plan included the establishment of detention facilities in which Bosnian Muslims and Bosnian Croats were largely GHWDLQHG DV ZHOO DV DFWLRQV RI ÂżULQJ QRQ 6HUE SURIHVVLRQDOV selective disarmament of paramilitary groups and individuals who possessed weapons and resettlement of the population.â&#x20AC;? )URP WKH TXRWHG SDUW RI WKH ÂżUVW LQVWDQFH MXGJPHQW DQG this is its core when it comes to the claim of the Court of BiH that there was a â&#x20AC;&#x153;widespread or systematic attack of the Army and Police of the Republic of Srpska against the civilian

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populationâ&#x20AC;?, it can be concluded that the Court, simply put, is trying to say the following: 1. that the leadership of the Serbs in BiH (in fact the leadership of the Republic of Srpska, which means the Republic of Srpska itself) devised a strategic plan; 2. that the plan included the creation of the Serbian state (the Republic of Srpska) using fear and force, in order to permanently remove non-Serbs from the territory of that state; 3. that the plan involved the selective disarmament of paramilitary groups and individuals who possessed weapons; 4. and that the plan included the dismissal of non-Serbs. As we can see, the basis of all is the alleged strategic plan of creating the Republic of Srpska, which according to the Court of BiH primarily involves the use of fear and force for allegedly permanent removal of non-Serbs from the territory of the Republic of Srpska. In respect to this claim of the Court of BiH we should bear in mind what we have just said, i.e. that the concept of the systematic nature of the attack, according to the Draft Code of Crimes against the Peace and Security of Mankind adopted by the International Law Commission of the United Nations, means that the individual actions of the attack are undertaken according to a previously prepared plan or policy, which in turn implies the existence of a particular organization (as the creator of such a plan or policy) that has control in some area. We should also have in mind that the Elements of Crimes, adopted pursuant to the Article 9 of the Rome Statute of the International Criminal Court, determined that the policy implying the implementation of an attack against the civilian

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population requires that the state or organization actively promote33 or encourage attacks against the civilian population, as well as that policies aimed at the attacks against the civilian population should be applied by the state or organization that has the real power over a particular territory. When this is taken into account, it is clear that the creation of a formulation of a â&#x20AC;&#x153;strategic plan of creating the Republic of Srpska which involves the use of fear and force in order to permanently remove nonSerbs from the territory of the Republic of Srpskaâ&#x20AC;? is needed not only to construct at all costs â&#x20AC;&#x153;factsâ&#x20AC;? whose existence is required by the being of incrimination crimes against humanity, but also to create an image of the Republic of Srpska as a criminal creation, not a legitimate creation of the Serbian people on this side of the Drina river. When such a formulation is made, then the other formulations discussed above under items 3 and 4 can be derived from it. 7KH TXRWHG SDUW RI WKH ÂżUVW LQVWDQFH MXGJPHQW DOVR indicates that what it wants to present as facts has not been determined by the Court of BiH, but has only been taken over from a judgment of the Hague Tribunal. This option resorted by the Court of BiH is the result of one law with a fairly long QDPH +RZHYHU ZH GR QRW ÂżQG WKDW OHJDO GHIHFWLRQ RI WKLV law so important as the fact that it provides, as we shall see below, disturbed precedenting of the law, through a â&#x20AC;&#x153;solutionâ&#x20AC;? which has not been known in our practice until the adoption of this law. So, it is the Law on the Transfer of Cases from the International Criminal Tribunal for the former Yugoslavia to WKH 3URVHFXWRUÂśV 2IÂżFH RI %RVQLD DQG +HU]HJRYLQD DQG WKH XVH And the above formulation of a strategic plan should imply, in accordance with the intention of the Court of BiH, such a policy, i.e. an active promotion.

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of evidence obtained by the International Criminal Tribunal for the former Yugoslavia in proceedings before courts in Bosnia and Herzegovina34. Article 4 of this Law provides (our italics in the quote): ŕŻ&#x2020;Âł$IWHU KHDULQJ WKH SDUWLHV the court may, on its own initiative or at the request of one of the parties, decide to accept as proven the facts that had been determined by legally binding decision in some other proceeding before the ICTY, or to accept documentary evidences from proceedings before the ICTY if related to important issues in the current proceedings.â&#x20AC;? In the quoted provision we can recognize the intention of the legislator to use it in order to enable all courts in BiH, not only the Court of BiH, not to determine legally relevant facts in criminal proceedings conducted for war crimes before them, but instead to simply accept those facts (in the form of a decision), DV GHWHUPLQHG E\ WKH +DJXH 7ULEXQDO LQ WKH VSHFLÂżF FDVH 7KLV is a kind of precedenting the law in its disturbed form, which at any price tries to impose the opinion of the mentioned Tribunal on certain factual issues as the â&#x20AC;&#x153;truthâ&#x20AC;?. If acted in this way, then there is no more any chance to refute those â&#x20AC;&#x153;factsâ&#x20AC;? but to accept them as the irrefutable â&#x20AC;&#x153;truthâ&#x20AC;?. To understand our statement that in this case we have a disturbed precedenting, we need to remind you of the meaning of the terms ratio decidendi and obiter dictum in common law. This law understands the term of ratio decidendi as a legal rule derived from those parts of the judicial decision which offer legal reasons (legal concepts) of the court for the judgment 34

Âł2IÂżFLDO *D]HWWH RI %L+Â´ QR DQG

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UHQGHUHG LQ D VSHFLÂżF FDVH. Opposite to this term, the notion of obiter dictum implies remarks or observations of a judge, which although contained in the judgment, are not its necessary part (as opposed to ratio decidendi which is, by its nature, a mandatory part of the judgment). So, obiter dictum is not the subject of a court decision. As a result, only ratio decidendi, as a legal rule, has legally binding character and it becomes a precedent. However, the quoted legal solution tried to impose that the facts, as determined by the Hague Tribunal, should be accepted as a precedent, and not only legal understandings of that Tribunal which as a sort of canon have already been already accepted, especially in the practice of the Prosecutorâ&#x20AC;&#x2122;s 2IÂżFH RI %L+ DQG WKH &RXUW RI %L+ 7KHUHIRUH LQ RXU RSLQLRQ the foregoing also represents a form of disturbed precedenting of the law. The fact that the quoted provision of the Article 4 of the mentioned law provides that the courts may accept facts as determined by the Hague Tribunal has been turned into a rule, which is proven by the practice of the Court of BiH, even by the example from the judgment we deal with here. In other ZRUGV ZKDW WKH ODZ GHÂżQHV DV D SRVVLELOLW\ KDV EHHQ WXUQHG into an obligation in the court practice. Therefore, the facts stated in the judgment of the Trial Chamber of the Hague Tribunal (case the Prosecutor vs. Radoslav Brdjanin - Judgment No. IT-99-36-T of 1st September, 2004) are accepted by the Court of BiH as a sort of precedent, DQG LW RQO\ WDNHV WKHP RYHU E\ LWV ÂżUVW LQVWDQFH MXGJPHQW in a way that we have previously quoted. Such treatment is

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defective, and the result of defects which in this regard are contained in the mentioned judgment of the Hague Tribunal. :KHQ WKH &RXUW RI %L+ LQ WKH ¿UVW LQVWDQFH MXGJPHQW RI st June, 2012 states that, “180. the leadership of Bosnian Serbs made a plan to link areas in BiH with the Serbian population and to create a separate Bosnian Serb state based on these areas, which meant to cause fear and use force to remove most of nonSerbs from the territory in which they planned to establish the state of Bosnian Serbs”, it thus, in essence, takes over that part of the judgment of the Trial Chamber of the Hague Tribunal in the case of the Prosecutor vs. Radoslav Brdjanin in which it is stated (our emphasis in the quote): ெ In early 1992, while the international negotiations were still on, trying to solve the status issue of Bosnia and Herzegovina, the Bosnian Serb leadership enforced its plan to separate territories they considered to be theirs from the existing structures of SRBiH and to create a separate Bosnian Serb state. The Assembly of the Serbian Republic of Bosnia and Herzegovina on 9th January 1992, declared the Serbian Republic of Bosnia and Herzegovina, which was renamed the Republic of Srpska on 12th August 1992 (hereinafter: RS). It consisted of so-called of Serbian autonomous regions and districts, including the Autonomous Region of Krajina. 72. Discussions taking place in the Assembly of the Serbian Republic of Bosnia and Herzegovina during the next few months showed that the Bosnian Serbs leadership was still determined to create a state in which there will be no place for non-Serbs. In achieving this goal, they planned to permanently

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remove non-Serbs from the territory of the proclaimed Serbian Republic of Bosnia and Herzegovina by force and fear.” The quoted text of the judgment of the Hague Tribunal, in the part concerning the alleged plan of its leadership to create a state in which there would be no place for non-Serbs, presented the untruths about the Republic of Srpska. From these untruths, fundamental to the Tribunal, other conclusions are derived. According to them: “118. .... crimes committed in Bosanska Krajina from April 1992 until the end of December 1992, i.e. at the time of the indictment, occurred as a direct result of a comprehensive Strategic Plan. Ethnic cleansing was not a byproduct of the criminal activity, but, on the contrary, it was the main goal and thus an integral part of the Strategic Plan.” This behaviour is a result of the fact that the Hague Tribunal does not take into account, although it is aware of it, several facts of cardinal importance, concerning the constitutional relations in BiH in the period prior to the war. These facts are related to the notion of constitutionality of peoples in prewar Bosnia. Concerning the notion of constituent peoples it LV VDLG WKDW ³ LQ SROLWRORJLFDO VHQVH DQG ZLWKLQ D VSHFL¿F state legal framework it implies a certain degree of autonomy from which derives the ability of a constituent entity to selfdetermination and independent action in areas relevant to the aspect of maintaining its constituent status, but also the codetermination on equal basis with other constituent entities

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on matters of common interest35.” The roots of this notion can be found in the conclusions of the ZAVNOBIH Resolution adopted at its session held on 26th and 27th 1RYHPEHU 7KH ¿IWK conclusion of the Resolution says (our italics in the quote): ெ 7RGD\ the peoples of Bosnia and Herzegovina through their only political representation, the Territorial Anti-Fascist Council for the National Liberation of Bosnia and Herzegovina, want their country, which is neither Serbian nor Croatian, nor Muslim - but Serbian, and Muslim, and Croatian to be free and fraternized Bosnia and Herzegovina, which shall provided a full equality of all Serbs, Muslims and Croats.36 For all the time of the existence of Bosnia and Herzegovina in the former Yugoslavia, BiH was in its constitutions determined in a way that, in its essence, matched the one we have pointed out in the above quote. The basic principles of (I) of the Constitution of the Socialist Republic of Bosnia and Herzegovina from 1974 stated that WKH 3HRSOH¶V 5HSXEOLF RI Bosnia and Herzegovina was created by the working class, working people and the peoples of Bosnia and Herzegovina Serbs, Muslims and Croats, and members of other nations and Dejan Vanjek: Representatives and members of the constituent peoples - issue of constitutionality and legitimacy 3UHGVWDYQLFL L SULSDGQLFL NRQVWLWXWLYQLK QDURGD ± SLWDQMH NRQVWLWXWLYQRVWL L OHJLWLPLWHWD : available at http://www.idpi.ba/ konstitutivnost-legitimitet/, the approach of 14/01/2015. About the constitutionality of peoples see the monograph by Dr. Snezana Savic: Constitutionality of peoples in Bosnia and Herzegovina (Konstitutivnost naroda u Bosni i Hercegovini), Banja Luka, 2000, as well as the monograph by Dr. Kasim Trnka: Constitutionality of Peoples (Konstitutivnost naroda), Sarajevo, 2000. 36 Quoted according to Dr. Kasim Trnka: Ibidem, p. 145. 35

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nationalities. Consistent with this constitutional principle, the Article 1 of the Constitution of the Socialist Republic of Bosnia and Herzegovina from 1974, determines BiH in the following way (our italics in the quote): â&#x20AC;&#x153;Socialist Republic of Bosnia and Herzegovina is a socialist democratic state and a socialist democratic community of working people and citizens, the peoples of Bosnia and Herzegovina - Muslims, Serbs and Croats, and members of other nations and nationalities who live in it, based on the power and self-management of the working class and all working people and the sovereignty and equality among the peoples of Bosnia and Herzegovina and members of other nations and nationalities who live in it.â&#x20AC;? As we can see, BiH was not only the state of working people and citizens, but also the state of each of the individually mentioned peoples which were recognized for their sovereignty and equality. In other words, a constituent entity of Bosnia and +HU]HJRYLQD ZDV HDFK RI WKHVH LQGLYLGXDOO\ VSHFLÂżHG SHRSOHV In July 1991 many amendments (precisely 31 of them) to the &RQVWLWXWLRQ RI WKH 65%L+ ZHUH DGRSWHG 2QH RI WKHP GHÂżQHG BiH as â&#x20AC;&#x153;a democratic and sovereign state of equal citizens, peoples of Bosnia and Herzegovina - Muslims, Serbs, Croats and members of other nations and nationalities that live in LW Â´ 7KHUHIRUH %L+ ZDV DJDLQ GHÂżQHG DV D FRXQWU\ RI HDFK LQGLYLGXDOO\ VSHFLÂżHG SHRSOHV 0XVOLPV 6HUEV DQG &URDWV which in the constitutional and legal sense resulted in the fact, that none decision of vital importance and constitutional validity could have been adopted only by the will of citizens but

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also the will of the majority of each constituent peoples. Such GHFLVLRQV DUH GHÂżQLWHO\ UHSUHVHQWHG E\ D 0HPRUDQGXP /HWWHU of Intent) and Platform on the position of BiH, adopted in October 1991 by the rump Assembly of SR BiH (by the voices of Croatian and Muslim members only) without members of the Serb people, â&#x20AC;&#x153;... which clearly highlighted that Bosnia and Herzegovina did not want to remain in the Yugoslav community (since Croatia was also out), but that it wanted to allocate as an independent stateâ&#x20AC;?.37 It is obvious that these decisions were made by only two peoples, without the participation of the Serb people as a constituent people in the former SR BiH, which is why these decisions were issued contra constitutionem. Due to this (and only due to this) it can be explained why the political representatives of the Serb people38 at that time at the meeting held on 24th October 1991 adopted a Decision on the Establishment of the Assembly of the Serb people in Bosnia and Herzegovina, as it became apparent that the representatives of the other two nations did not care about the Serb people opinions regarding the future constitutional status of BiH. Soon after the Assembly of the Serb people in Bosnia and Herzegovina adopted a decision to call and hold a referendum (plebiscite better to say) that was held on 9th and 10th November 1991, at which the Serb people as a constituent people, with the vast majority of about 96,4% pleaded for an independent Serb state, which may be part of Serbia and Yugoslavia. Rajko Kuzmanovic: Constitutional Law (Ustavno pravo), Banja Luka, 2006, p.297 38 3UHYLRXVO\ HOHFWHG WR WKH $VVHPEO\ RI 65 %L+ LQ D GHPRFUDWLF ZD\ LQ WKH ÂżUVW multi-party elections held in the Socialist Republic of Bosnia and Herzegovina on 18th October, 1990. 37

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Therefore, the legitimate will of one constituent people is the basis of creating the Republic of Srpska, and not some strategic plan of this peopleâ&#x20AC;&#x2122;s leadership which is persistently DQG OHJDOO\ JURXQGOHVVO\ LQVLVWHG RQ ÂżUVW WKURXJK WKH GHFLVLRQV of the Hague Tribunal (as seen in the aforementioned judgment in the case The Prosecutor vs. Radoslav Brdjanin), followed by the decision of the Court of BiH in its judgments (like for H[DPSOH WKH ÂżUVW LQVWDQFH MXGJPHQW ZH DUH WDONLQJ DERXW KHUH Therefore, the Republic of Srpska has not been established â&#x20AC;&#x153;... in the process of implementation of important state projects ...â&#x20AC;? nor in some unconstitutional manner, which is by the way the thing on which insists Dr. Kasim Trnka39 although legally unfounded, because the solutions contained in the Constitution of the SR BiH valid at that time guaranteed to the Serb people a status of constituent and nation-building peoples. When a nation has such constitutionally guaranteed status in one country, and when the opinions of its democratically elected and legitimate political representatives on the future constitutional position of that country are not recognized by the representatives of other constituent peoples, then that nation has the right to selfdetermination (up to secession), which includes the right to freely organize itself in state and political sense. As opposed to this, the referendum (on the state independence of BiH) held on 29th February and 1st March of 1992, was not valid in the constitutional sense, because the Serb people did not participate in it, but only the other two FRQVWLWXHQW SHRSOHV 0XVOLPV DQG &URDWV 7KLV LV LQ D VSHFLÂżF ZD\ WHVWLÂżHG E\ WKH GDWD DFFRUGLQJ WR ZKLFK YRWHUV 39

Dr Kasim Trnka: Ibidem, p.66.

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out of the total 3,253,847 participated in the referendum. If we have in mind that according to the census in BiH from 1991 there was 1.366.104 or 31.21 % of the Serbs in BiH, it is clear that the remaining number of over one million voters who did not vote in the referendum represents the Serb people. Therefore, only the other two nations (Muslims and Croats) voted for the independence of BiH, but not the Serb people, which was a clear message for the Serb people that they must accept the will of the other two nations imposed by such legally damaged referendum or the referendum will be imposed against this nation by force. Everything aforementioned makes this referendum invalid in the constitutional and legal sense, considering that at the time of its execution was effective provision of the Constitution, according to which BiH is a democratic and sovereign state of equal citizens, peoples of Bosnia and Herzegovina - Muslims, Serbs and Croats. This, in turn, means that it is not possible, and constitutionally valid, if only two of those peoples vote for independence, but it should be done by the majority of every one of those nations. If that fails to happen in this way, which is exactly what happened in this referendum, then the only right thing to do is to have those constituent peoples continue with the further negotiations on the constitutional and legal future of certain political-territorial unit. Since it failed, then this fact also speaks in favor of the legality and legitimacy of the plebiscite of the Serb people in BiH in November 1991, by which the Serb people then, not its political leadership, pleaded for an independent Serb state, which may be a part of Serbia and Yugoslavia. 7KLV OHQJWK\ GHSDUWXUH LQ WKH ÂżHOG RI FRQVWLWXWLRQDO ODZ ZDV necessary in order to understand how baseless are the claims

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of the Hague Tribunal regarding the Republic of Srpska and its organs (the Republic of Srpska Army and Police). The essence of these claims (thesis) can be reduced to the following: 1. that the leadership of the Serbs in BiH (in fact the leadership of the Republic of Srpska, and that means the Republic of Srpska itself) devised a strategic plan; 2. that the plan included the establishment of the Serbs state (the Republic of Srpska) by using fear and force, in order the permanently remove non-Serbs from the territory of that state, whereby this force (in the form of the alleged widespread and systematic attack) was applied by the Army and Police of the Republic of Srpska; 3. that the plan involved the selective disarmament of paramilitary formations and individuals who possessed weapons; DQG ÂżQDOO\ WKDW WKH SODQ implied the dismissal of nonSerb workers. ,I UHJDUGLQJ WKH ÂżUVW WKHVLV RI WKH 7ULEXQDO D SOHELVFLWDU\ expressed will of the Serb people in Bosnia and Herzegovina to create a Serb state (the Republic of Srpska) is taken into account, then it is clear that the formation of the Republic of Srpska and its duration are not the result of any strategic plan made by certain group of people (the one that the Tribunal called the leadership of the Serbs in Bosnia and Herzegovina). Considering the absence of such plan, a subsequent thesis of the Tribunal in the Hague which indicated that, as stated in paragraph 77 of the judgment of the Trial Chamber of 1st September 2004, in the case

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RI WKH 3URVHFXWRU YV 5DGRVODY %UGMDQLQ Âł WKH ÂżUVW VWUDWHJLF REMHFWLYH LPSOLHG WKH SHUPDQHQW UHPRYDO RI D VLJQLÂżFDQW SRUWLRQ of non-Serbs from the territory of an imaginary Bosnian Serbs state.â&#x20AC;?40 Especially invalid character gets the thesis by the Hague Tribunal that this force was not used by the Army and Police of the Republic of Srpska in any way, not to mention widely and systematically, against the non-Serb population. Now quite logically arises a question of the cause of suffering at the time of the Muslim and Croatian civilian population. Suffering of this population, as well as the suffering of the Serb civilians in territory under the control of the so-called Army of BiH41, i.e. the Croatian Defence Council, should be look for into ,Q LWV (QJOLVK YHUVLRQ WKLV SDUW RI WKH PHQWLRQHG MXGJPHQW VD\V ŕŻ&#x2020; 7KH 7ULDO &KDPEHU LV VDWLVÂżHG EH\RQG UHDVRQDEOH GRXEW WKDW WKH ÂżUVW VWUDWHJLF JRDO HQWDLOHG WKH SHUPDQHQW UHPRYDO RI D VLJQLÂżFDQW SDUW RI WKH QRQ 6HUE SRSXODWLRQ from the territory of the planned Bosnian Serbian state.â&#x20AC;&#x153; 41 On this suffering see more in the monograph by Marko Mikerevic: â&#x20AC;&#x153;Sarajevoâ&#x20AC;&#x2122;s cauldrons of deathâ&#x20AC;? (Sarajevski kazani smrti), Doboj 2004. This monograph represents a valuable documentary material, because it offers (p. 110 LQIRUPDWLRQ DERXW WKH VXIIHULQJ RI LQGLYLGXDOO\ VSHFLÂżHG SHUVRQV RI Serbian nationality, who were systematically murdered by the members of the so-called Army of BiH and Muslim paramilitary formations during the war, in the part of Sarajevo, which was under the control of the so-called Army of BiH. A special value of the monograph lies in the fact that its author was living in the mentioned part of Sarajevo during the war in BiH and also worked as D OD\ MXGJH LQ WKH 'LVWULFW 0LOLWDU\ &RXUW 6R LW LV D ÂżUVWKDQG WHVWLPRQ\ 'XH to the fact that he worked as a lay judge in the said court, Marko Mikerevic in WKH PHQWLRQHG PRQRJUDSK SRLQWV RXW WKDW ŕŻ&#x2020; DERXW GHWDLQHHV RI 6HUELDQ QDWLRQDOLW\Â´ ZDONHG WKURXJK WKH FDPS ŕŻ&#x2020;9LNWRU %XEDQMÂ´ LQ ZKLFK WKH 3URVHFXWRUÂľV 2IÂżFH RI %L+ DQG WKH &RXUW RI %L+ DUH ORFDWHG WRGD\ S RI WKH VDLG monograph. Having in mind these, as well as numerous other data encountered in it, this monograph is not only an evidence for the suffering of Serbs in SaUDMHYR GXULQJ WKH ZDU LQ %L+ EXW LW LV DOVR D NLQG RI FRQÂżUPDWLRQ RI WKH ORFDO constant inter-ethnic hatred. 40

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each other’s deep-rooted animosities, which (unfortunately) has been present as a constant for centuries in the local population. Even the present time (the time of writing of this monograph) offers numerous examples of such animosity. It is enough to read the comments appearing on social networks, or comments on the articles published in the electronic editions of the local daily newspapers, to realize the extent to which the nationalist hatred is still smoldering in the local man, waiting for the next convenient moment to burst into something that will, by all means, be even dirtier than the last war in BiH. The existence of such hatred during the war in BiH is pointed out by the Hague Tribunal itself, in the judgment of the Trial Chamber in the case of the Prosecutor vs. Radoslav Brdjanin. It does so, even when not aware of it, in several places, some of which shall be mentioned for the purpose of this paper. Thus, paragraphs 81 and 82 of the judgment say: 81. Regarding Bosanska Krajina particularly, a paramilitary JURXS NQRZQ DV WKH ³:ROYHV IURP 9XþMDN´ WKDW ZDV VXSSRUWHG by SDS took over a television relay on Kozara in August 1991. The frequencies were redirected and consequently the majority of municipalities in Bosanska Krajina could no longer keep track of television and radio programs from Sarajevo, but only programs from Belgrade and occasionally from Croatia, and from March 1992 onwards from Banja Luka too. 82. Since that time the meaning of the message that SDS spread through the media was that the Bosnian Serbs were threatened with persecution and genocide by the Bosnian Muslims and Bosnian Croats, and that the Serbs must protect

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themselves in order not to experience the same crimes committed against them during the Second World Warâ&#x20AC;Śâ&#x20AC;? In paragraph 81 of the judgment the Tribunal overlooks the fact (or rather that does not say it, although it is aware of it) that at that time the media under the Muslim and Croatian control were leading a campaign in Sarajevo (and it is a form of hatred towards anyone who was thinking differently) which was solely focused on promoting the idea of independence of BiH, in spite of the will of the Serbs who were against it. When we add the results of this unconstitutional bi-national (MuslimCroatian) referendum, it is clear that the Serbian people did not need any campaign, not even the one lead by the Serbian Democratic Party and the media in the Republic of Srpska, to realize that through the referendum, the other two nations sent them a clear message that the Serbs could choose between accepting the will of the two peoples which is imposed on them by such legally invalid referendum, and the fact that, otherwise, the referendum will be imposed on them by the use of force. )XUWKHU FRQÂżUPDWLRQ RI WKH WUDJLF LQWHU HWKQLF KDWUHG DQG WKH need to suppress the Serbian people by the use of force is listed LQ SDUDJUDSK RI WKH MXGJPHQW 6SHFLÂżFDOO\ WKH IROORZLQJ LV said in this paragraph (our emphasis in the quote) 89. The Muslims were also preparing for the war and correspondingly arming themselves. In June 1991 the SDA leadership established the Council for National Defence of the Muslim people, whose paramilitary branch was the Patriotic League. However, the efforts of the Bosnian Muslims to obtain and distribute weapons were not nearly as successful as the

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efforts of Bosnian Serbs, both in terms of quantity, but also in terms of quality of the obtained weapons. Partly, the reason for this was due to the fact that the Bosnian Muslims weapons obtained mainly individually. Some acquired their weapons by buying it from the Bosnian Serbs who were returning from the front in Croatia. Many Bosnian Muslims who had obtained their ZHDSRQV LQ WKLV ZD\ ZHUH LGHQWLÂżHG DQG VXEVHTXHQWO\ DUUHVWHG The efforts of the Bosnian Croats to arm ZHUH DOVR VLJQLÂżFDQWO\ behind the arming of the Bosnian Serbs.â&#x20AC;? It is more than clear from the quoted part that the Muslims (many of them, as stated by the Tribunal itself in the appropriate place in the quote) were also preparing for the war, which implied their arming too. In this regard, there are two very logical questions: against whom the Muslims were preparing for the war, and why? Bearing in mind what we have previously discussed, it is obvious that they were preparing for the war DJDLQVW WKH 6HUEV ZKLFK LV D FRQÂżUPDWLRQ RI WKH KDWUHG WKDW exists between these two units). The reason for this war can be found in the need of the Muslims to make the Serbs accept by force BiH voted in the unconstitutional, binational referendum and thus destroy the Republic of Srpska. This need is found also on the Croatian side, because they, too, were arming for the same reasons. Such situation could have resulted in nothing else but civil and inter-ethnic war. In such a war (as in any other ZDU HDFK RI WKH FRQĂ&#x20AC;LFWLQJ SDUWLHV QRUPDOO\ WHQGV WR GHIHDW WKH enemy, because that is a conditio sine qua non for its survival. And one more proof that the war was indeed such is given through several parts of the judgment of the Trial Chamber in the Prosecutor vs. Radoslav Brdjanin, which we shall quote

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below. Thus, in paragraphs 103 and 104 of the judgment the following is said (our emphasis in the quote): “103. An armed attack on Bosanska Krupa took place on 21st April 1992, after the negotiations between members of the SDS and the civil authorities which were held in Bosanska Krupa failed. Previously, the Bosnian Serbs authorities from Jasenice sent an ultimatum to all non-Serbs that they had to remove all barricades which were set up when they heard that the Bosnian Serbs were going to attack the city, and that citizens had to leave the left bank of the river Una. Until that moment, nearly all Bosnian Serbs who lived there have been already gone. In April 1992 the Bosnian Muslims tried to improvise a defense of the FLW\ ZLWK WKH KHOS RI DXWRPDWLF DQG VHPL DXWRPDWLF ULÀHV DQG some hand grenades, but - after the Bosnian Serbs bombarded it – the Bosnian Serbs infantry entered the town. The armed attack lasted until 25th April 1992. 104. On 30th April 1992, in the municipality of Prijedor, the army and the police physically took control over the city hall and other vital facilities in the city. Between May and July of 1992 the areas and villages predominantly inhabited by Bosnian Muslims and Bosnian Croats - Hambarine, Kozarac, Kamicani, Biscani, Carakovo, Brisevo and Ljubija – were attacked by the Bosnian Serbs army together with the police and the paramilitary groups. These attacks mostly started after the expiry of the deadline in which the non-Serbs should have surrendered their weapons. Sometimes an incident caused by the non-Serbs would have been used as an excuse for the attack. The attacks were carried out by merciless shelling with heavy weapons. The targets were also the indiscriminately shelled houses in the Muslim villages

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DQG VHWWOHPHQWV ZKLFK OHG WR VLJQLÂżFDQW GHVWUXFWLRQ DQG FLYLOLDQ wictims. Many survivors run away from their villages and sought shelter in the nearby forests. After the shelling, the armed soldiers entered the villages, plundered and torched houses, and expelled or killed some of the villagers who remained in the villages. In some situations, women were raped. The Bosnian 0XVOLPV DQG WKH %RVQLDQ &URDWV IURP 3ULMHGRU PXQLFLSDOLW\ failed to provide effective resistance to such attacks. They were not organized well enough and did not have enough weapons to confront the attackers.â&#x20AC;? From the paragraph 103 of the judgment it can clearly be concluded that the Muslims of Bosanska Krupa obtained the weapons, which indicated their intention to take over and hold power in the city. So, not only local Serbs obtained weapons but WKH 0XVOLPV LQ WKDW DUHD GLG WKH VDPH ,Q VXFK D FRQĂ&#x20AC;LFW HDFK party tends to defeat the other one. The same can also be observed in the case of the municipality of Prijedor. It is indicative that in paragraph 104 of the judgment of the Tribunal there are several parts that talk about the attacks performed by the Serbian army. This suggests that on the opposite (Muslim) side there existed an organized armed resistance, especially since, as the Tribunal itself points out, â&#x20AC;&#x153;... These attacks mostly started after the expiry of the deadline in which the non-Serbs should have surrendered their weapons.â&#x20AC;? Even more indicative is the fact that the Tribunal, at the end of paragraph 104, besides eliciting its observation according to which â&#x20AC;&#x153;The Bosnian Muslims and Bosnian Croats IURP 3ULMHGRU PXQLFLSDOLW\ IDLOHG WR SURYLGH HIIHFWLYH UHVLVWDQFH to such attacks.â&#x20AC;?, but in a certain way it also expresses its regret due to such state of the Muslims and Croats: â&#x20AC;&#x153;They were not

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VXIÂżFLHQWO\ ZHOO RUJDQL]HG DQG GLG QRW KDYH HQRXJK ZHDSRQV WR confront the attackers.Â´ ,Q WKLV ZD\ WKH 7ULEXQDO LWVHOI FRQÂżUPV not only the existence of hate, which at that time escalated into DQ DUPHG FRQĂ&#x20AC;LFW EXW LW DOVR LQGLUHFWO\ H[SUHVVHV LWV ELDVHG attitude (or rather its regret) that the Muslims and Croats would not have been militarily defeated by the Serbs if they had been better organized (better than the Serbs) and if they had obtained more weapons. The same conclusion can be made on the basis of the paragraph 108 of the judgment, which states the following (our emphasis in the quote): â&#x20AC;&#x153;108. The events in the municipality Kljuc are characterized by more effective resistance of the Bosnian Muslims. When the Bosnian Serbs captured the city of Kljuc the Bosnian Muslims who were resisting, retreated to the Muslim village 3XGLQ +DQ. On 27th May, 1992, the Muslim soldiers attacked D PLOLWDU\ FRQYR\ RI WKH %RVQLDQ 6HUEV QHDU 3XGLQ +DQ. On the same day the deputy commander of the SJB Kljuc, Dusan Stojakovic, was killed. The next day the Crisis Staff of Kljuc issued an ultimatum to the Bosnian Muslims to surrender their weapons, ..... Prior to the expiration of the ultimatum the Bosnian Serbs army started shelling Pudin Han, and after that Velagici, Prhovo and other villages of the Bosnian Muslims in the municipality of Kljuc. The result of this attack was the death of many inhabitants of Pudin-Han and Prhovo. The next day the murders continued, and most of those killed were on their way to Peci and in school in Velagici.â&#x20AC;?

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From this quote it is also obvious that in the said municipality not only Serbs obtained weapons and militarily organized for the war, but the same was done by the Muslims, who, as the Tribunal itself admits, provided an effective resistance. The Muslim soldiers then withdrew to the village Pudin Han. In this regard, we must not forget that the Tribunal in the above quote says that the Serbian army shelled that and other Muslim villages, but it does not say (and it should, because that is the task of any court in such situations) why these villages were shelled and what kind of the armed resistance was provided from them, although it is clear that it was a strong armed resistance since the shelling followed. Not wanting to say this, the Tribunal after that does not either want to say anything about whether many killed inhabitants were soldiers or civilians, although from all aforementioned it is clear that they were the Muslim soldiers, not civilians. The foregoing considerations indicate that it was an armed FRQÀLFW EHWZHHQ WKH RUJDQL]HG PLOLWDU\ IRUPDWLRQV 6HUELDQ and Muslim) in the whole area referred to in the judgment of the Trial Chamber of the Court of BiH in the case of the Prosecutor vs. Ratko Dronjak. In other words, these were not the attacks performed by military forces aimed at defenseless civilian population. Therefore, in the absence of such an attack ZH FDQQRW VSHDN RQ OHJDOO\ MXVWL¿HG EDVLV DERXW D ZLGHVSUHDG and systematic attack against the Muslim civilian population, and especially not about the Republic of Srpska (its army and police) having planned and carried out such an attack. ,Q VLWXDWLRQV ZKHQ WKHUH DUH HYHU\GD\ DUPHG FRQÀLFWV all over a wide area it is quite natural to disarm the people who are against the state, because, as such, these individuals represent a danger to it. In other words, the disarmament of

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such persons simply must be done, because there is no state, particularly the one in the process of establishing, if it wants to survive, that would allow to have in its territory the armed persons, and formations such persons created, and whose existence endangeres the state. If it fails to do so, the state shall bring its survival into question. The same is true for employees, especially those in the military, other state agencies and companies of great importance for the state, if they are opposed to this country, since there is no other way to ensure proper and effective functioning of these systems and prevent possible sabotage in moments crucial for the defense and survival of the state. Thus, the reasons that we have previously presented indicate the legal groundlessness of the claims made by the Tribunal in the judgment of the Prosecutor vs. Brdjanin about the alleged â&#x20AC;&#x153;strategic plan of the Serbs leadership in BiHâ&#x20AC;?. As such plan had not existed, it is logical that the Hague Tribunal had to say that such a plan implied (or from it could be derived) the creation of the Serbs state (the Republic of Srpska) by the use of fear and force in order to permanently remove the non-Serbs from WKH WHUULWRU\ RI WKDW 6WDWH 6SHFLÂżFDOO\ VLQFH EHLQJ XQDEOH WR determine and provide legally valid evidence for the existence of such a plan (the existence of something that does not exist cannot be proved), then it is not surprising that the Tribunal, due to this lack, had to use the construction of the implied use of force and fear, i.e. the construction according to which, as stated in paragraph 77 of the judgment of the Trial Chamber of 1st September 2004, in the case of the Prosecutor vs. Radoslav Brdjanin (our emphasis in the quotation) â&#x20AC;&#x153;... WKH ÂżUVW VWUDWHJLF objective HQWDLOHG WKH SHUPDQHQW UHPRYDO RI D VLJQLÂżFDQW SRUWLRQ of the non-Serb population from the territory of an imaginary

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Bosnian Serb state.” Such constructions are usually used to when we know that something does not exist (or it has never happened), but it must be said it had existed due to someone’s needs, to which particularly prone are the holders of power and force whose understanding of the law lies in the mace. However, despite this, the Court of BiH accepts such views of the Hague Tribunal, taking them over as a kind of canons on these matters in its judgment of 1st June 2012. Therefore, this was the way in which the Court of BiH in that judgment “determined” the existence of the alleged widespread and systematic attack of the Army and Police of the Republic of Srpska against civilians in the said area, in which way it also adjudicated the Republic of Srpska. In this direction also go the “arguments” which the Court of BiH used to “explain” its claim according to which crimes against humanity (as contained in the Article 172 of the CC BiH) were prescribed during the war in BiH. For this purpose, the Court of BiH in its verdict in the trial of 1st June 2012, refers to the principles and practices. Below we will quote parts of that judgment which are relevant to this issue: ெ 7KH &RXUW SRLQWV RXW WKDW WKH FULPLQDO RIIHQVH IRU which the accused is found guilty constitute crimes under customary international law and therefore can be treated in accordance with the “general principles of international law” stipulated under the Article 4a. of the Law on Amendments to the Criminal Code of BiH, and the “general principles of law recognized by civilized nations” prescribed by paragraph 2 of the Article 7 of the European Convention. Following the above reasons, the CC BiH can be applied in this case. ...

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138. Finally, when it comes to the application of the CC BiH, particularly a provision of the Article 172 (crimes against humanity) it should be pointed to the decision of the European Court of Human Rights in case no. 51552/10 (Boban Simsic against Bosnia and Herzegovina), which states how bearing in mind the terrible, illegal nature of ... offenses which include murder and torture of Bosniaks in the context of a widespread and systematic attack against the Bosniak civilians .... even a hasty response would imply that the acts are risky containing a crime against humanity .... the reasons due to which the appeal of convicted Boban Simsic was rejected as obviously unfounded. 148. Similarly, the customary status of criminal responsibility for crimes against humanity .... and individual UHVSRQVLELOLW\ IRU ZDU FULPHV FRPPLWWHG LQ ZDV FRQ¿UPHG by the Secretary General of the UN, the International Law Commission, as well as the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR). 149. These institutions have established that criminal responsibility for crimes against humanity ..... represent an imperative norm of international law, i.e. ius cogens. Therefore, it seems indisputable that crimes against humanity and war crimes against the civilian population in 1992 were part of LQWHUQDWLRQDO FXVWRPDU\ ODZ 7KLV FRQFOXVLRQ ZDV FRQ¿UPHG E\ the Study on Customary International Humanitarian Law made by the International Committee of the Red Cross. According to that Study “serious violations of international humanitarian law represent war crimes” (Rule 156), “individuals are responsible for war crimes they commit” (Rule 151) and “States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if necessary, they

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must prosecute the suspects. They must also investigate other war crimes within its jurisdiction and, if necessary, prosecute the suspects “(Rule 158).” Therefore, this is the source from which the Court of BiH concluded that an offense crimes against humanity (as contained in the Article 172 of the CC BiH) was prescribed during the war in BiH. To highlight the legal groundlessness of this conclusion it is necessary to analyze several claims presented by the Court of BiH in the above quote. In this analysis, we shall start with the statement that “the customary status of criminal responsibility IRU FULPHV DJDLQVW KXPDQLW\ ZDV FRQ¿UPHG E\ WKH 6HFUHWDU\ General of the UN, the International Law Commission, as well as the jurisprudence of the ICTY and the International Criminal Tribunal for Rwanda (ICTR).” When presenting this claim the Court of BiH disregards the fundamental question important for this incrimination, and that is the question regarding the content of its being. Until the Rome Statute of the International Criminal Court became effective crimes against humanity in its being did not contain elements of a widespread and systematic attack against the civilian population and the knowledge of the perpetrator of that offense for the existence of such an attack. How important these elements are can be explained by the fact that, for the purpose of explaining them, it was necessary to determine the meaning of the notion attack directed against a civilian population, which LV ¿QDOO\ GRQH LQ WKH (OHPHQWV RI &ULPHV DGRSWHG SXUVXDQW to the Article 9 of the Rome Statute, which (these elements) entered into force on 9th September 2002. When this is taken into account, it is obvious that neither the Secretary General

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of the UN, nor the International Law Commission or the Tribunal in The Hague and the International Criminal Tribunal for Rwanda, could not determine nor they have determined, to use the terminology of the Court, “the customary status of the criminal responsibility for crimes against humanity. “When saying this, the Court of BiH means that the aforementioned institutions have determined the customary status of not only crimes against humanity, as incrimination, but the widespread and systematic attack against civilian population also, and the knowledge of the perpetrator of that offense for the existence of such an attack, as elements contained within the being of this crime. However, such an assertion is invalid, because the Court of BiH does not care about (and it should have) the fact stating that it is not disputable that crimes against humanity in its being did not contain the elements listed until the Rome Statute of the International Criminal Court entered into force. The following statement of the Court of BiH is the one according to which crimes against humanity are “criminal acts according to the customary international law”. This statement does not contain anything that is originally created by the Court of BiH. Instead, at this point the Court of BiH essentially repeats what is presented by the Hague Tribunal, in the judgment of the Trial Chamber on 7th May 1997 in the case of the Prosecutor vs. Dusko Tadic (paragraphs 622 and 623 of this judgment), as well as in the decision of this Tribunal on interlocutory appeal in the same case (decision of 2nd October 1995, paragraphs 138142). Following the reasoning of the Tribunal in the Hague, the Court of BiH makes the same mistake as the Tribunal. Namely, by expressing its claim that crimes against humanity “are crimes under customary international law” the Hague Tribunal in the mentioned decisions did not take into account the fact

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that a widespread and systematic attack against civilians and the knowledge of the perpetrator of the act for the existence of such an attack, did not exist as the elements of the being of this crime at the time when the Tribunal issued the mentioned two decisions in the Tadic case, because these elements became part of the being of this offense only after coming into force of the Rome Statute of the International Criminal Court in 2002. In addition, referring to customary practices very often, particularly E\ WKH &RXUW RI %L+ SRLQWV WR DQRWKHU GHÂżFLW RI LWV GHFLVLRQV ,Q fact, as we have just seen the Court of BiH, in this regard, in its judgment only asserted â&#x20AC;&#x153;... that the offenses for which the defendant was found guilty represent crimes under customary international lawâ&#x20AC;?, but then failed to give any reasons on how that Court determined the existence of customs whose application it pleaded in its judgment. Regarding this, it should be recalled that the literature from the Anglo-Saxon legal climate indicates that during examining whether there is a certain custom it is necessary to determine the following: 1. that the custom exists continuously for a long time; 2. that it exists more by common agreement than the use of force; 3. that it must be consistent to other customs; 4. that it must contain a certainty; 5. that it must be accepted as compulsory; WR EH RI VLJQLÂżFDQW LPSRUWDQFH 7. it must be a reasonable custom.42 Mary Ann Glendon, Michael W. Gordon, Paolo G. Carozza: Comparative Legal Traditions, second edition, St. Paull, Minn, 1999, p. 270 42

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In considering the question that is the subject of this paper of particular importance are the elements under 4 and 5. The ÂżUVW RI WKHP VKRZV WKDW WKH FXVWRP PXVW FRQWDLQ a certainty, while the next one says that the custom should be adopted as compulsory. This is indicated because the Court of BiH, and initally the Hague Tribunal, fail to deal with this incrimination in its decisions, in a manner that is certain, by identifying the elements of which the being of incrimination crimes against humanity has been made before and after the entry into force of the Rome Statute of the International Criminal Court. If having done so, they would have determined that prior to the entry into force of the Rome Statute there was no international legal practice (nor international legal rules) by which this incrimination in its being contained a widespread and systematic attack against the civilian population and the knowledge of the perpetrator of the acts for the existence of such an attack. In the absence of such practices, specifying the elements that are an indispensable part of certainty of customs, it is futile to continue to explore whether such a practice was adopted as required. That will happen only after coming into force of the Rome Statute, and that statute is not international custom but international legal treaty as a source of international law and, consequently, international criminal law. As a result, the reference of the Court of BiH to the decision of the European Court of Human Rights in the case no. 51552/10 (Boban Simsic against Bosnia and Herzegovina) is also groundless, since the Court in the aforesaid decision only presents legally unfounded claim that this act during the last war in BiH in the form prescribed in the Article 172 of the Criminal Code of BiH constituted a crime against humanity. The groundlessness of this claim lies in the fact that this incrimination, in the form

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prescribed by the Criminal Code of BiH, shall have risen only DIWHU WKH HQG RI WKH ZDU ÂżUVW E\ DGRSWLQJ WKH 5RPH 6WDWXWH of the International Criminal Court, from which it is then transferred to the Criminal Code of BiH. Therefore we cannot say that the claim by the European Court of Human Rights in the same case is legally founded. According to it the acts of the applicants, at the time when they were committed, represented, DV WKDW &RXUW DUELWUDULO\ FODLPHG Âł DQ RIIHQVH GHÂżQHG ZLWK VXIÂżFLHQW DFFHVVLELOLW\ DQG IRUHVHHDELOLW\ DFFRUGLQJ WR WKH international lawâ&#x20AC;?. The statement of the Court of BiH, rather its reference to the Study on Customary International Humanitarian Law made by the International Committee of the Red Cross does not deserve any serious criticism. This is due to the fact that the mentioned Court only cited the content of the rules 151, 156 and 158 from the above Study, and that content has nothing to do with the essential issue we deal with in this paper, that is with the question whether a widespread and systematic attack against the civilian population and knowledge of the perpetrator for such an attack were the elements of crimes against humanity during the war in BiH. Finally, the referring of the Court of BiH to the principles of international law cannot withstand serious criticism. This is due to the fact that legal principles, including the principles of international law, do not contain any details nor can contain them. Namely, the nature of the legal principles does not imply any detailing, and if it would, then the legal principles would transform into legal norms. This is indicated since the determination of a being of any crime is done primarily through detailing (by the detailed description of the elements of the being), not by legal principles, as otherwise the principle

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of legality would be perturbed, precisely one element of that principle called lex certa. When this is taken into account, it is not surprising then that the Court of BiH nor the Hague Tribunal LQ WKHLU MXGJPHQWV FRXOG QRW KDYH PHQWLRQHG DQ\ VSHFLÂżF OHJDO principle from which it could have been concluded that the widespread and systematic attack against the civilian population and the knowledge of the perpetrator of such attack had been the elements of crimes against humanity during the war in BiH. They could not have done so due to the fact that such a legal principle (with such content) simply does not exist. VII.2.2. Second-instance judgment of the Court of BiH, No. S1 1 K 003420 12 Krz 7 of 21st February, 2013 This judgment of the Appellate Division of the Court of %L+ DV WKH VHFRQG LQVWDQFH KDV PRGLÂżHG WKH ÂżUVW LQVWDQFH judgment of 1st June, 2012, in a way that the accused Ratko Dronjak was found guilty of the persecution as a form of execution in which way he committed the criminal offense of crimes against humanity under the Article 172 of the Criminal Code of BiH. After that, by the second-instance verdict for that crime he was sentenced to imprisonment for ten years, which is three years more severe punishment than a prison sentence that ZDV GHWHUPLQHG IRU KLP LQ WKH ÂżUVW LQVWDQFH YHUGLFW With regards to the topic we are dealing with, a discussion on this second-instance judgment will not be long. The reason for this is to be found in the fact that this judgment only FRQÂżUPHG DOO XQFRQVWLWXWLRQDO XQGHUVWDQGLQJV RI UHWURDFWLYH implementation of incrimination crimes against humanity

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under the Article 172 of the Criminal Code of BiH, presented LQ WKH ¿UVW LQVWDQFH MXGJPHQW RI st June 2012. This was done in a way that we shall literally transmit below. So, the secondinstance judgment of 21st February 2013 in connection with an alleged widespread and systematic attack directed against a civilian population says the following: “37. The question of the existence of a widespread and systematic attack directed against a civilian population in the territory of ARK has been properly observed by the Trial Chamber within the general factual framework, within the events which are tied to the implementation of the strategic plan of the Bosnian Serbs, with the ultimate goal to create a separate Bosnian Serb state from which most of non-Serbs will be permanently removed…”. As we can see, it is again about the claims that are not argumented nor supported by legally valid evidence. Namely, MXVW OLNH WKH ¿UVW LQVWDQFH MXGJPHQW IURP st June 2012, the second-instance judgment also lacks arguments for the claim of the existence of the Strategic Plan of the Republic of Srpska leadership, and the proofs of it. For example, there are no explanations for the persons (by name, nor by their function) from the Republic of Srpska leadership who, according to the Court of BiH, conceived such alleged plan, what part of the alleged plan was directed towards the area to which those two judgments refer, etc. Instead, there are only sheer assertions, based on which the conclusions are then made on the existence of the alleged widespread and systematic attack of the Army

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and Police of the Republic of Srpska against the civilian nonSerb population. Regarding the application of crimes against humanity under the Article 172 of the Criminal Code of BiH, the secondinstance judgment states the following: â&#x20AC;&#x153;82. When it comes to crimes against humanity, the Appellate Divisonâ&#x20AC;&#x2122;s conclusion is that the Trial Chamber properly applied the CC of BiH. 83. Namely, the Trial Chamber correctly pointed out that the derogation from the principle of time constraints regarding the criminal law is exactly the case in relation to crimes against humanity under the Article 172 of the CC of BiH where the Article 4a) of the CC BiH should be applied. In fact, it is a criminal offense which, as such, was not prescribed by the criminal law that was in effect at the time of the offense (SFRY Criminal Code). However, since we here talk about incrimination that includes violation of international law, and these are the acts which have generated the essential elements of the being of the crime against humanity under the Article 172, paragraph (1) of the CC BiH, in which way the conditions from the Article 4a. CC BiH were met 84. The Trial Chamber gave detailed and thorough arguments which showed that the crimes against humanity during the relevant period were part of customary international law, which is evaluated as completely valid and correct by the Appellate Division, and accepted in whole by this Chamber.â&#x20AC;? At the end of this section, having in mind that these attitudes have already been criticized at the appropriate places in the

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paper, here we will present some less known details. They are not related to the judgment only, but also to one of the judges who participated in making it. Namely, the quoted as well as other words in the second-instance judgment of 21st February 2013, are written by a member of the Appeals Chamber, the judge Mirko Bozovic (as judge rapporteur). In the biography of this judge, available on the website of the Court of BiH, among other things, it is said that he was born in 1950 in Precani, Trnovo municipality, and that he was appointed a judge of the Municipal Court in Sarajevo, named then-Serbian Sarajevo, on 30th October 1992, and that from August 1995 he also held WKH SRVLWLRQ RI WKH 3UHVLGHQW RI WKH &RXUW IRU WZR WHUPV So, this man was a judge of the Republic of Srpska during the war, which means that he was a judge in that, as he called it now â&#x20AC;&#x153;a separate state of Bosnian Serbs from which, as the ultimate goal of the implementation of the strategic plan of the Bosnian Serbs leadership ...â&#x20AC;? (leadership which, among other things, appointed him a judge, and then the President of the Court in then-Serbian Sarajevo) â&#x20AC;&#x153;...most non-Serb will permanently be removed.â&#x20AC;? The foregoing can be observed not only with this judges, EXW DOVR IRU H[DPSOH WKH MXGJH /MXERPLU .LWLF 6SHFLÂżFDOO\ this judge was a member of the Trial Chamber which rendered WKH ÂżUVW LQVWDQFH MXGJPHQW RI st June 2012, while as a single judge rendered a verdict number X-KR-10/928 of 19th July 2010. In the pronouncement of the judgment of 19th July 2010, inter alia, he states the following: â&#x20AC;&#x153;...that the members of ARS and the Ministry of Internal Affairs of the Republic of Srpska (MIA RS) conducted a widespread and systematic attack against the Bosniak civilian

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population from the UN safe area of Srebrenica, the attack that was in accordance with state or organizational policy and aimed at the implementation of those policies...”. During the war in Bosnia the judge Ljubomir Kitic worked as a judge of the Military Court in Bijeljina, that is the judge at one of the military courts of the Republic of Srpska, about which later, as a judge of the Court of BiH, says that its state and organizational policy” involved a widespread and systematic attack against the Bosniak civilian population from the UN safe area of Srebrenica.” We presented the above observations without any intention to offend or belittle any of these judges. Simply, we wanted to reveal certain facts. What we said should not be understood as if we were referring that these judges, due to their belonging to a particular nation, should favour that nation in their judgments. Such behavior would be unacceptable, because every judge should judge only on the basis of facts and law. VII.2.3. The decision of the Constitutional Court of Bosnia and Herzegovina, No. AP 3280/13 of 7th October 2014 When it comes to this decision of the Constitutional Court of Bosnia and Herzegovina, we shall keep our exposure regarding it short. As in the case of the second-instance judgment of the Court of BiH of 21st February 2013, the reason for this is to be found LQ WKH IDFW WKDW WKH DERYH PHQWLRQHG GHFLVLRQ RQO\ FRQ¿UPHG DOO unconstitutional understandings of retroactive implementation

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of the incrimination crimes against humanity under the Article 172 of the Criminal Code of BiH, expressed in the previously analyzed judgments of the Court of BiH. In the said decision WKH &RQVWLWXWLRQDO &RXUW RI %L+ ÂżUVW UHIHUV WR LWV GHFLVLRQ QR $3 2789/08 of 28th March 2014, after which it states: â&#x20AC;&#x153;In the aforementioned decision, among other things, it LV HPSKDVL]HG WKDW WKH (XURSHDQ &RXUW LQ WKH GHFLVLRQ Ă˘LPĂŁLĂź against Bosnia and Herzegovina found irrelevant the fact that crimes against humanity had not constituted a criminal offense under the national law during the war in the period 1992-1995, considering the fact that these acts at the time of commitment constituted a crime under the international law. 53. By putting the mentioned principles in connection ZLWK D VSHFLÂżF FDVH WKH &RQVWLWXWLRQDO &RXUW REVHUYHV WKDW WKH appellant for the actions described in Sections I to III (1-4), based on a detailed analysis of the evidence presented, was found guilty in the relevant period of the act of crimes against humanity (by persecution) under the Article 172, paragraph 1, item h) of CC of BiH. In fact, both Chambers of the Court of BiH accepted the fact that a criminal act of war crime against humanity is a criminal offense under the customary international law, and that it is regulated by the general principles of international law provided by the provision of the Article 4a of the Law on Amendments to the CC of BiH, whereby the Court of BiH was referring to the practice of the European Court UHJDUGLQJ WKH FDVH Ă˘LPĂŁLĂź DJDLQVW %RVQLD DQG +HU]HJRYLQD LQ which the European Court had to discus similar factual and legal issue. Based on everything aforementioned, the Court of BiH concluded that the criminal act of crimes against humanity in 1992 constituted part of customary international law and that its

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legal formalization within the framework of national legislation through the CC of BiH and the implementation of the said law in the circumstances of the present case did not constitute a violation of the rights guaranteed by the European Convention. Thus, from the reasoning of the contested judgments it is clear that the offense of war crimes against humanity represents an incrimination which includes a violation of international law, ZKLFK LV FOHDUO\ DQG WKRURXJKO\ H[SODLQHG DQG ÂżQDOO\ ZKLFK fully correspond with the jurisprudence of the European Court and the Constitutional Court in cases due to which the identical legal issues were inititated. Therefore, the Constitutional Court in the circumstances of the case does not see any reason to express a different view in the present case, and, accordingly, the Constitutional Court considers that the application of substantive law, in particular the CC of BiH, in relation to a crime against humanity, was in line with guarantees provided by the Article 6, paragraph 1 of the European Convention.Âť 7KXV WKH &RQVWLWXWLRQDO &RXUW RI %L+ DV LW ZDV ÂżUVW GRQH by the Court of BiH in this case, just brings unfounded and unproven assertions whose essence comes down to the fact that crimes against humanity (Article 172 of the Criminal Code of BiH), ÂŤ in 1992 represented part of customary international law ÂŤ, i.e. ÂŤ that they are under the general principles of international law taken into account by the provision of the Article 4a of the Law on Amendments to the CC of BiHÂť. Unfortunately, this Court, as the highest authority when it comes to appellate proceedings, misses the essence of the problem. The question is not whether this incrimination was part of international law, but whether it was in force during the war in BiH containing all

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WKH HOHPHQWV RI WKH EHLQJ RI WKDW RIIHQVH GHÂżQHG LQ WKH $UWLFOH 172 of the Criminal Code of BiH. In other words, one question is whether the incrimination crimes against humanity was part of international law. When answering this question it cannot be denied that this incrimination is part of that law, but not of the customary international law nor of some principle of international law. Instead, it is part of international law, since it is prescribed by the Nuremberg Tribunal Statute, the Statute of the International Military Tribunal for the Far East and the Principles of International Criminal Law adopted by the General Assembly of the United Nations, and these acts are neither customs nor the principles of international law. However, none of these international legal acts, nor the Statute of the Tribunal in the Hague, in the being of this crime prescribed as its elements a widespread and systematic attack directed against a civilian population and knowledge of the perpetrator of such an offense for such an attack. This is precisely the essence of the problem we are dealing with in this paper. Therefore, the mentioned elements became part of this incrimination in 2002, when the Rome Statute of the International Criminal Court entered into force, which represents the moment when this incrimination was essentially given different content in terms of quality. That is why in such state of affairs we cannot, in legally valid43 manner, accuse and condemn individuals for the incrimination under the Article 172 of the Criminal Code of BiH, when it and LWV EHLQJ DV GHÂżQHG E\ WKDW DUWLFOH VLPSO\ GLG QRW H[LVW DW WKH time of the past war in BiH.

From the aspect of achieving the principle of legality, and especially its element called lex certa.

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VIII. Why? The issue we discussed in this paper is just one of many that form mosaics of modern chaos. The sad part is the fact that this chaos was created where it should not be. Therefore, with the helplessness of a common man to resist the chaos by get him out of the room where it should not be, we are only left with an opportunity to repeat previously exposed most important observations at the end of this paper. After that we shall offer an explanation about why the actions related to these cases took place the way they did, which is the practice that continued in the practice of the Court of BiH, and which will be our answer to the question posed in the title of this section. Beginning this paper we pointed out the attitude of the European Court of Human Rights (in the case Scoppola) according to which only the law (which excludes any custom or legal principle) FDQ GHÂżQH GHWHUPLQH D FULPH and prescribe punishment for it (nullum crimen, nulla poena sine lege), and that the criminal law should not be interpreted extensively to the detriment of the accused, for example by using analogies. It follows, as further concludes the same court in the above case, that WKH RIIHQVH PXVW EH FOHDUO\ GHÂżQHG E\ WKH ODZ, and this requirement is met when an individual from the text of the relevant provision is familiar with what actions or omissions make him criminally liable. What is particularly important is the fact that the European Court of Human Rights in the same decision took the view that the Article 7, paragraph 1 of the European Convention guarantees not only the right to prohibit the retroactive implementation of more severe criminal law but

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also the right to retroactively apply criminal law only if it is, in the present case, more lenient to the accused. Regarding the time FRQĂ&#x20AC;LFW RI ODZV WKH (XURSHDQ &RXUW UXOHG LQ WKH VDPH FDVH that when there are differences between the criminal law that was in force at the time of committing the crime and subsequent FULPLQDO ODZV ZKLFK FDPH LQWR IRUFH EHIRUH PDNLQJ D ÂżQDO judgment in a criminal case, the court must apply the provisions of the law which is more favorable to the accused. This rule is of fundamental importance for the realization of the principle of legality in criminal law, and the rule of law as well. Applied to the issue we have dealt with in this paper, this rule can only mean WKDW LQ WKH FDVH RI D WLPH FRQĂ&#x20AC;LFW RI FULPLQDO FRGHV WKH FRXUW must apply the law whose provisions are most favorable to the accused (regardless of the crime the defendant is accused of by the prosecutor). Further, this means that they need to apply the provisions of the law that was in force at the time of the crime, if it does not know incrimination which the prosecutor wants to obtain by his indictment, because such crime was simply not determined at the time when the accused committed the offense with which he is charged by the indictment. However, when the correct understandings should be applied to criminal events of the recent war in BiH, the European Court of Human Rights withdraws its views, laconically stating that incrimination of crimes against humanity (contained in WKH &ULPLQDO &RGH RI %L+ LV Âł DQ DFW GHÂżQHG ZLWK VXIÂżFLHQW accessibility and foreseeability under the international lawâ&#x20AC;?. It is particularly sad that such a judicial instance (above which there is no other instance that would serve as a refuge for legality) states that in the case which we discussed in the paper,

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and that means in many other similar cases from the practice of the Court of BiH, “...all the constituent elements of crimes against humanity are met: the disputed acts are performed in the context of a widespread and systematic attack directed against a civilian population and the applicant was aware of these attacks”. The European Court stated this even though it is very well familiar with the fact that no legal principle to the present (which means at the time of the war in Bosnia and Herzegovina as well) included the constructions such as “the attack directed against a civilian population”, “a widespread or systematic attack”, or “knowledge of such an attack”, because these constructions were incorporated into the being of incrimination crimes against humanity just before the end of the twentieth century by the adoption of the Rome Statute of the International Criminal Court (in 1998), but came into force only at the beginning of the XXI century, bearing in mind that the aforementioned statute entered into force on July 1st 2002. It is also sad to see the Constitutional Court of BiH (as the highest domestic court in matters within its competence) when, regarding this issue, wants to unconstitutionally impose an obligation to all courts in BiH “... so that, when judging on war crimes, they must apply the Criminal Code of Bosnia and Herzegovina and other relevant laws and international documents applicable in Bosnia and Herzegovina”, that is, that from its understandings, presented in the case locally known as case Maktouf”, there arises an obligation of the entity courts to follow the case law of the Court of BiH”. The Constitutional Court of BiH also acts unconstitutionally when in the cases we GHDOW ZLWK LQ WKLV SDSHU ZDQWV WR FRQ¿UP WKH XQFRQVWLWXWLRQDO

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retroactive implementation of incrimination crimes against humanity by the Court of BiH in a way to present legally unfounded claim according to which war crimes are â&#x20AC;&#x153;crimes under the international law in the sense of universal jurisdiction for processing so that a conviction for such cimes, under the law that was subsequently prescribed and determined certain acts as criminal and prescribed special criminal sanction, and which were not prescribed as such under the law that was in effect at the time the acts were committed, would not be contrary to the Article 7 of the European Conventionâ&#x20AC;?. This claim is a blunt instrument that cannot be used to crash barrier called the rule of law, because it was built of an unbreakable huge rock in the form of rules that crimes cannot be prescribed nor judged for ex post facto. Instead of trying to defend something that is indefensible, we should remind you of something that had been noticed by the Court of BiH and the Constitutional Court of BiH in their decisions which we discussed in this paper. We point this out DW WKH HQG RI WKLV SDSHU EHFDXVH WKLV LV D PHDQV WR ÂżJKW DJDLQVW those who, during the war in Bosnia, committed crimes against civilians. Namely, both, the Court of BiH and the Constitutional Court of BiH observed that â&#x20AC;&#x153;... one should not ignore the fact that the criminal acts enumerated in the Article 172 of the Criminal Code of BiH can be found in the law that was in force at the relevant time (Criminal Code of SFRY), i.e. that the acts of the accusation were punishable under the then applicable criminal lawâ&#x20AC;?. Here we repeated the quote from the secondLQVWDQFH YHUGLFW RI WKH &RXUW RI %L+ QXPEHU ; .5Ă¤ of August 7th 2007 (p. 41 of the verdict). This is also stated by the Constitutional Court of BiH in its decision regarding the appeal against the mentioned second-instance verdict of the

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Court of BiH, when on p.6 of the decision of April 14th 2010 in the case no. AP 3620/07 it says: â&#x20AC;&#x153;In this sense, the Appellate Division of the Court of BiH pointed to the fact that the acts enumerated in the Article 172 of the Criminal Code of BiH were punishable under the Criminal Code of SFRY, which was in force at the time of committing the crimeâ&#x20AC;?. Therefore, if everything just quoted is a fact, and it is, then the actions of Prosecution of BiH and the Courts mentioned are troublesome EHFDXVH GHVSLWH DOO WKLV WKH\ GR QRW DFFXVH DQG GR QRW ÂżQG WKH accused guilty of the criminal offense of war crimes against civilians under the Article 142 of the SFRY Criminal Code, although these crimes exactly were prescribed at the time such acts were being committed during the war in Bosnia, and not incrimination crimes against humanity. Now quite reasonably there emerges a question why, despite all this, it is acted in this way. In seeking answers to this question we cannot, in our opinion, stay within the limits of the criminal legal side of the problem. Instead, it is necessary WR H[FHHG WKLV OLPLW DQG HQWHU DW OHDVW WKUHH RWKHU ÂżHOGV RQH RI which is constitutional, the other historiographical, and the third ideological (or rather indoctrinated). %XW EHIRUH HQWHULQJ WKHVH ÂżHOGV ZH VKDOO UHPLQG \RX RI WKH contents of the criminal offense war crimes against civilians under the Article 142 of the Criminal Code of the Socialist Federal Republic of Yugoslavia (SFRY). It is a criminal offense that was in effect (on the basis of the appropriate domestic legislation on its takeover) at the time the events occurred, but then the accused persons were not accused of that, but of crimes against humanity under the Article 172 of the Criminal

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Code of BiH. Therefore, the Article 142 of the SFRY Criminal Code determined the criminal act of war crimes against the civilian population in the folowing way: ŕŻ&#x2020;:KRHYHU LQ YLRODWLRQ RI UXOHV RI LQWHUQDWLRQDO ODZ HIIHFWLYH DW WKH WLPH RI ZDU DUPHG FRQĂ&#x20AC;LFW RU RFFXSDWLRQ RUGHUV WKH attack against civilian population, inhabited areas, individuals or persons horse de combat, which results in: - death, serious body injury or serious damage to human health; - indiscriminate attack that affects the civilian population; - the actions against the civilian population such as killing, torturing, inhumane treatments, biological, medical DQG RWKHU VFLHQWLÂżF H[SHULPHQWV WDNLQJ WLVVXHV RU RUJDQV IRU transplantation, causing immense sufferings or violations of bodily integrity or health; - dislocation or displacement or forced change of nationality or conversion to another religion; - forcible prostitution or rape; - application of measures of intimidation and terror, taking hostages, collective punishment, unlawful taking to concentration camps and other illegal imprisonments, depriving of the right to a fair and impartial trial; - forcible service in the armed forces of a hostile power or its intelligence service or administration; - forced labor, starvation of the population, property FRQÂżVFDWLRQ SOXQGHULQJ LOOHJDO DQG DUELWUDU\ GHVWUXFWLRQ RU DSSURSULDWLRQ RI SURSHUW\ WR D ODUJH H[WHQW QRW MXVWLÂżHG by military needs, taking an illegal and disproportionate

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contribution or requisition, devaluation of domestic currency or ilegal issuance of money, or who committs some of these acts, VKDOO EH SXQLVKHG E\ LPSULVRQPHQW RI DW OHDVW ÂżYH \HDUV RU the death penalty.â&#x20AC;&#x153; This criminal offense under the given law had two more forms (p. 2 and 3), related to ordering or execution of attacks DJDLQVW REMHFWV VSHFLÂżFDOO\ SURWHFWHG E\ WKH LQWHUQDWLRQDO ODZ and objects or installations with dangerous power (dams, nuclear power plants, banks etc.), as well as ordering or carrying out the resettlement of parts of the civilian population into the occupied territory. From the content of a being of the aforementioned criminal offense it can be concluded that the acts of which the Prosecution accused (and is still accusing) persons, and the Court of BiH judged (and still judging), can be considered as some of the alternatively prescribed acts of committing a war crime against civilians. So, when, as in the case of the Court of BiH no. X-KRZ-05/04, by the second-instance judgment of August 7th 2007 the defendant is found guilty of participating in June 1992 â&#x20AC;&#x153;... in the group with more members of the military DQG SROLFH DUPHG ZLWK ULĂ&#x20AC;HV LQ WKH DWWDFN DJDLQVW WKH YLOODJH .XND LQ WKH PXQLFLSDOLW\ RI 9LĂŁHJUDG DUUHVWLQJ DQG WKH LOOHJDO imprisonment of dozens of Bosniak civilians ..... â&#x20AC;&#x153;, then in that case, if indeed there is evidence for the allegations cited, there exists an indiscriminate attack that affects the civilian population as a war crime against civilians, and not the crime

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against humanity that was not determined as a criminal offense DW WKH VSHFLÂżHG WLPH -XQH 2U ZKHQ LQ WKH FDVH RI WKH Court of BiH no. X-KR-08/549-2 of September 10th 2009, the indictment charged the accused with having participated in the actions: â&#x20AC;&#x153;... a) depriving another person of his life (murder), d) deportation or forcible transfer of population, e) imprisonment or other severe deprivation of physical liberty opposite to the fundamental rules of international law k) other inhumane acts of a similar character, done intentionally so to cause great suffering or serious physical or psychological injury or damage to healthâ&#x20AC;?, then these actions, if proven, are related to death (under item a), displacement or relocation of population XQGHU LWHP G XQODZIXO FRQÂżQHPHQW XQGHU LWHP H WKDW LV killings, torture, inhumane treatment or intimidation and terror conducted against the civilian population (under paragraph k), as acts of war crimes committed against the civilian population, and not a crime against humanity. In this way it could (and should) have been acted regarding other cases, but it was not. Now, reasonably, arises the question of why not having acted in this way? The answer to this question lies in the fact that the criminal offense of war crimes against civilians in its being does not include the construction of a widespread or systematic attack, while the being of crimes against humanity under the Article 172 of the Criminal Code of BiH does, so that is why the accused persons in the given cases we analyzed in this paper, as in many other cases of the Court of BiH, were accused and convicted of the latter crime, and not of the war crime against civilian population. Of course, after this follows the next logical question: why was it

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necessary to accuse, and after convict these persons precisely of incrimination crimes against humanity? And right with this question, in our opinion, we enter the very quintessence of the problem, which, as we have already explained, is not related to WKH ÂżHOG RI FULPLQDO ODZ RQO\ EXW DOVR WR WKUHH RWKHU ÂżHOGV RQH of which is constitutional, the other historiographical and third ideological (or rather indoctrinated). For a more complete picture of the constitutional text of this problem it is necessary to recall that none of everything previously stated could not be done without the High 5HSUHVHQWDWLYH LQ %L+ DQG KLV RIÂżFH LQ 6DUDMHYR 1DPHO\ ÂżUVW WKH +LJK 5HSUHVHQWDWLYH LQ %L+ LQ LPSRVHG WKH Criminal Code of Bosnia Herzegovina, which prescribed the incrimination of crimes against humanity (in the Article 172 of this Law). Then, the same year, the High Representative in BiH imposed the Law on the Court of BiH which, among other things, stipulated the jurisdiction of this court for a group of offenses to which the mentioned incrimination belonged. 7KHUHIRUH WKH JLYHQ ODZV KDYH ÂżUVW EHHQ LPSRVHG E\ WKH actions of the High Representative in BiH. After that, in the same text, they were endorsed by the Parliamentary Assembly of Bosnia and Herzegovina, which then adopted the Law on Amendments to the Criminal Code of Bosnia and Herzegovina Âł2IÂżFLDO *D]HWWH RI %L+Â´ QXPEHU LQ 6HSWHPEHU This amendment of the said law added the Article 4a), whose essence is that it should allow (just for such cases) deviation from the long-accepted principle of the prohibition of the retroactive implementation of criminal law and enabling such implementation only if the latter law is more lenient for the

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accused, which is accepted as an achievement in civilized legal systems. Considering the fact that this law is adopted by the Parliamentary Assembly of BiH, in our opinion, this proves the ODFN RI VHULRXVQHVV DQG WKH VXSHU¿FLDOLW\ ZLWK ZKLFK SROLWLFDO parties and institutions of the Republic of Srpska approached the enactment of the given law, since both, representatives and delegates from the Republic of Srpska in the Parliamentary Assembly of BiH when the law was being enacted with their votes participated in creating conditions for the things we shall discuss below. Thus, the provision of the aforementioned amendment stipulates: “Articles 3 and 4 of this Law shall not prevent the trial or the punishment of any person for any act or omission which, at the time when it was committed, was considered criminal act according to the general principles of international law”. How important was the introduction of the quoted provision is best seen in the view on this issue given by the judge of the Court of BiH (Azra Miletic),44 who, concernig the matter, says the following (our italics in the text): ெIt is quite clear that the aim of introducing this provision is to allow the implementation of the new Criminal Code of BiH, which prescribes new forms of the criminal acts of war crimes, as well as a new form of criminal liability, which have not been foreseen by law so far, and which are recognized in international law. ..... Implementation of this provision is also UHÀHFWHG LQ DGMXGLFDWLQJ FULPLQDO RIIHQVHV TXDOL¿HG DV FULPHV Judge Azra Miletic was the presiding judge of the Appellate Division of the Court of BiH that rendered the second- instance verdict, number X-KRZ-05/04 of August 7th 2007, which was the subject of this paper. 44

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against humanity, a criminal offense that is listed in the CC of BiH in the Art. 172. However, the implementation of this provision enables to the full extent the trial on the basis of a joint criminal enterprise and command liability, which are the forms of participation and liability that are not explicitly included in the CC of SFRY, but are part of international customary and international treaty law, now positioned in the CC of BiH in the Art. 180â&#x20AC;&#x153;.45 In plain language said, it emerges from the quoted text that the introduction of the mentioned provision was intended to allow, for the events that occurred during the period from 1992 to 1995, the trial for the incrimination crimes against humanity imposed by the High Representative in BiH, as the High Representative imposed the construction of the Article 180 of the Criminal Code of BiH to which refers the said author. In fact, in this way, it was allowed to trial not only to the individuals, but to the Republic of Srpska itself without its participation in court proceedings (which is a practice of not only the Court RI %L+ EXW WKH +DJXH 7ULEXQDO DV ZHOO 6SHFLÂżFDOO\ DW WKH beginning of the paper we said that the facts of the issue to which we have dedicated this writing speak about how in case of unconstitutional accusations (and conviction) of persons (individuals) of Serbian nationality for the incrimination crimes against humanity it was not just about the trial of these people, but also trial of the Republic of Srpska for something it did not Azra Miletic: Institute of temporal validity of laws in cases of war crimes before the Court of BiH (,QVWLWXW YUHPHQVNRJ YDĂĽHQMD ]DNRQD X SUHGPHWLPD UDWQLK ]ORĂžLQD SUHG 6XGRP %L+), Fondacija Centar za javno pravo (CJP), Sarajevo, p.4 and 19. Available on http://www.fcjp.ba/templates/ja_avian_ ii_d/images/green/Azra_Miletic1.pdf, access of 01/05/2014.

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do, and for which it was not allowed in any of these procedure to defend itself by entities that it would have authorized for that purpose.46 We have pointed this out at the time when we discussed the shortcomings of plea agreement and the problems it causes in the practice. Among other things, we have then indicated that the examples from “...the practice of the Court of BiH .... show that the introduction of the institute of the interested person (interested party in criminal proceeding - our remark) that person would be allowed to actively participate in criminal proceedings related to these and other cases in order to accomplish and protect his legal interests”.47 Acting in a way in which it was done in this, and other similar judgments of the Court of BiH, the Republic of Srpska was judged too, and therefore the Serbian people in this region, because those people created the Republic of Srpska. Such behaviour is, to use the words of Milo Lompar, “an ideal example of ideologising guilt”, whereby the noted author, addressing the problem of instrumentalization of Srebrenica, gives the opinion, so applicable to the problem which we have However, for the sake of truth, the Republic of Srpska did not put any effort to be allowed that, because nothing in this direction has not been done by its institutions and bodies. As far as we know, not even the representatives or delegates from the Republic of Srpska in the Parliamentary Assembly of Bosnia and Herzegovina tried to do it, because they did not even make an attempt to amend the Code of Criminal Procedure in the direction to which we pointed out in this paper. 47 Prof. Milan Blagojevic, PhD: Problems created by the plea agreement in certain circumstances (3UREOHPL NRMH VWYDUD VSRUD]XP R SUL]QDQMX NULYLFH X RGUHÿHQLP VLWXDFLMDPD), the journal Argumenti, no. 17, Banja Luka, 2012, p. 60. Also in PhD Milan Blagojevic: On the problems created by the plea agreement in certain circumstances, Bulletin of the District Court of Banja Luka, No. 19-20, Banja Luka, 2012, p. 101-114. 46

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discussed in this paper, according to which (our italics in the text): â&#x20AC;&#x153;Just like the fact that for crimes in the Serbian villages around Srebrenica Bosnian Muslims as a nation cannot be blamed, so of crimes in Srebrenica the Serbian people cannot be guilty, nor - if you put the matter on the general level, not losing for a moment awareness of the essential peculiarities of each example â&#x20AC;&#x201C; the Croatian nation for Jasenovac, or the German nation for the Auschwitz, or the American nation for the enormous crimes before and after 1945. 1R QDWLRQ FDQ EH EODPHG â&#x20AC;?48 What can be a constitutional legal consequence of the mentioned procedures of the Court of BiH? To be able to understand it, it is necessary to point out that in the judgments ZKLFK ZH KDYH GHDOW ZLWK LQ WKLV SDSHU LW LV ŕŻ&#x2020;GHWHUPLQHGÂ´ LQ a stereotypical way of sayings that the given incrimination is committed â&#x20AC;&#x153;as part of a widespread and systematic attack of the Serbian army and police ..... directed against the Bosniak civilians in the municipality of Visegrad ..... â&#x20AC;?, as it was done in the second-instance verdict of the Court of BiH, no. X-KRZ-05/04 of August 7th 2007. In the paper we showed that there are verdicts by the same court in which it is â&#x20AC;&#x153;determinedâ&#x20AC;? that â&#x20AC;&#x153;... the members of the ARS and the Ministry of Internal Affairs of the Republic of Srpska (MUP RS) have undertaken a widespread and systematic attack against the Bosniak civilians from the UN safe area of Srebrenica....â&#x20AC;? or that a particular Milo Lompar: Spirit of self-denial, Contribution to the critique of Serbian cultural policy, In the shadow of foreign rule ('XK VDPRSRULFDQMD 3ULORJ NULWLFL VUSVNH NXOWXUQH SROLWLNH 8 VHQFL WXĂżLQVNH YODVWL), third amended edition, Novi Sad, 2012, p. 490-491.

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individual (of Serbian nationality) â&#x20AC;&#x153;In the period from the end of April 1992 till the end of September of the same year as part of a widespread and systematic attack by the army and police of the Serbian Republic of BiH and then the Republic of Srpska directed against the Bosniak and Croatian citizens of Prijedor municipality of the attack that was carried out in the same period, having the knowledge of such an attack, as a reserve policeman, knowingly and willfully participated in the joint criminal enterprise of civil DQG PLOLWDU\ DXWKRULWLHV RI WKH PXQLFLSDOLW\ 3ULMHGRU LQ RUGHU to persecute the Bosniak and Croatian civilians and commit crimes against them, having the same goal as the members of WKH FLYLO DQG PLOLWDU\ DXWKRULWLHV RI 3ULMHGRU PXQLFLSDOLW\ DQG with military and civilian structures of the Serbian Republic of Bosnia and Herzegovina and after the Republic of Srpska, which goal implied, based on discriminatory intent, the persecution of the Bosniak and Croatian population on political, national, ethnical and religious grounds from the territory controlled by the army and police of the Serbian Republic of BiH, and later the Republic of Srpskaâ&#x20AC;?. Among these, there are many other verdicts by the Court of BiH which, in their relevant parts, contain similar descriptions in the statement of gorunds. The quoted constructions concerning the Republic of Srpska49 (its institutions and organs) are not proven in these judgments, and basically they cannot be proven when such evidence simply does not exist. These judgments do not presented any valid To make it even worse, in the creation of such constructions the Serbian judical personnel from the Republic of Srpska in the Court of BiH also took part. And this personnel, in fact, participated in making such judgments either as members of the judicial councils or as judges individuals who have accepted plea agreements, such as agreement due to which the Court of BiH delivered its judgment, number X-KR-10/928 of July 19th 2010, which we discussed in the paper.

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reasons (nor the appropriate proofs) that would explain how the Court of BiH, for example, came to the conclusion that it was a widespread or systematic attack against a civilian population, as well as how the state (in this case the Republic of Srpska) promoted or encouraged attacks on civilians However, despite this argument the above mentioned judgments (which in legal terms came into force) continue their existence, â&#x20AC;&#x153;testifyingâ&#x20AC;? of the things written in them. Identical to them are the judgments of the Hague Tribunal when it comes to this issue, because those judgments also, in their essential parts, lack valid reasons (and appropriate proofs) for these structures. But despite the lack of them, they will serve as a sort of a ZHDSRQ LQ WKH ÂżHOG RI FRQVWLWXWLRQDO ODZ +RZ" :HOO VLPSO\ due to the fact that the forces which would like the Republic of Srpska to disappear, and which would like to do this through legal process (without getting their hands dirty),50 will largely use the above judgments, as well as other judgments which emerged from the practice of the Court of BiH and the Hague Tribunal, to â&#x20AC;&#x153;proveâ&#x20AC;? its attitude that the Republic of Srpska should not continue to exist because in their point of view it is a criminal and as such can not be constitutional legal structure in constitutional organization of any state. $ QHLJKERXU RI WKLV FRQVWLWXWLRQDO DQG OHJDO ÂżHOG LV historiography, in regard to which we shall remind you of the situation that preceded the civil war in BiH, which we once discussed in our monography on the Brcko district, from which we use a lengthy quote below. Thus, Although these forces, if it does not happen in this way, will not have any doubts about using the military force to cause the disappearance of the Republic of Srpska at the appropriate moment.

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ெ 7KH $UELWUDWLRQ &RPPLVVLRQ HVWDEOLVKHG E\ WKH European community at that time with the task to determine which of the constituent republics of the former Yugoslavia meet the requirements for international recognition, in Opinion no. 4 took a position that there are no conditions for the recognition of Bosnia and Herzegovina, but also that this decision could be changed “through a referendum in which all citizens of BiH would participate without a difference” and that would be held under the international control. The referendum was then held in the period from February 29th to March 1st 1992 but the Serbian people did not take part in it because they did not want to be separated from Yugoslavia51, which the vast majority, pleaded in a plebiscite held before that on November 9th and 10th 1991. Then, around 96.4% people voted for an independent Serbian state, which may be part of Serbia and Yugoslavia. The paradox related to the referendum held in BiH, from 29.2. to 03.01.1992, lies in the fact that Turkey, not waiting for the referendum, recognized BiH on February 6th 1992, which was only adding IXHO WR WKH DOUHDG\ ¿HU\ SROLWLFDO VFHQH The result of the referendum was expected because the Muslim-Croatian party voted for secession. ..... Out of total Which is the right that the Serbian people in Bosnia had right to consume, because according to the Constitution of BiH valid at the time they were a constituent people in BiH. Therefore, bearing in mind that status of its, anything of importance for the state structure of BiH, and thus the question of whether BiH will be an independent state or not, by the letter of then valid Constitution could not have been decided without the consent of the Serbian people. When we take into account these reasons, it is clear how unlawful was aforementioned opinion of the Arbitration Commission regarding the part in which it said that a referendum of the citizens, and not the people in BiH, should decide on the mentioned issue. 51

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3,253,847 voters, in the referendum voted 2,073,568 of them, of whom 2,061,932 voted for secession. It is evident, therefore, that the remaining number of over one million voters who did not vote ..... represents Serbian nation who in this way also clearly expressed its attitude related to this issue about the kind of country in which it wants to live. However, that attitude was not respected so the Serbian nation, in this way, just like its political representatives in benches of multiparty Assembly of BiH, were placed in an unenviable position because, against its clearly expressed will, it was cut off from the rest of its countrymen simply by supremacy of the other two nations.”52 So, the Serbian people as a constituent people in BiH was overvoted in this manner and thus unconstitutionaly deprived of the possibility to decide on the future status of BiH. Therefore, it was his natural right, based also on the International Covenant on Civil and Political Rights as well as the Charter of the United Nations, to organize itself in such a situation, which it did by creating the Republic of Srpska. Hence, the Republic of Srpska in such a state of things, and bearing in mind the other reasons that we have already exposed, it is not, nor it can be a criminal creation, since it represents an expression of the legitimate aspirations of the entire nation. In other words, no nation can be guilty if (on the basis of itsown, and thus legitimate desires) it creates its own state, as the Serbian nation created the Republic of Srpska. Consequently, the state established in this way cannot be a criminal creation. However, related to this, there are again WKH DERYH JLYHQ MXGJPHQWV ZKLFK ZLOO ெWHVWLI\´ LQ WKH ¿HOG RI PhD Milan Blagojevic: Legal nature and position of the Brcko District within Bosnia and Herzegovina (3UDYQD SULURGD L SRORåDM %UþNR GLVWULNWD X %RVQL L Hercegovini), Doboj, 2002, p. 13-15.

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historiography as well about the facts written in them, and to those historians who want to present the Republic of Srpska as a FULPLQDO FUHDWLRQ LQ WKH ÂżHOG RI KLVWRU\ Once this is done in history, it is only a step from there to the new indoctrination of future generations regarding this issue. It is not hard to notice how this region is so fertile ground for this kind of indoctrination, if we take into account what long time ago has been observed and perfectly explained by the great Nobel Prize winner Ivo Andric, talking about the mentality of these people and collectives, regarding which he said: ŕŻ&#x2020;%RVQLD LV D FRXQWU\ RI KDWUHG 7KHUH DUH D IHZ FRXQWULHV ZLWK VXFK ÂżUP EHOLHI HOHYDWHG VWUHQJKW RI FKDUDFWHU VR PXFK tenderness and loving passion, such depth of feeling, of loyalty and unshakeable devotion, or with such a thirst for justice. But in secret depths underneath all this hide burning hatreds, entire hurricanes of tethered and compressed hatreds maturing and awaiting their hour.... For the fatal characteristic of this hatred is that the Bosnian man is unaware of the hatred that lives in him, shrinks from analyzing it and hates those who do not believe or those who believe differently and like other things.53 To this we should add the words Andric said to Dobrica Cosic in 1972, which Cosic gives in his book Bosnian war. 6SHFLÂżFDOO\ 'REULFD &RVLF UHJDUGLQJ WKLV LQ WKH VDLG ERRN VD\V (our italics in the text): ŕŻ&#x2020;, FDQQRW DW WKLV WLPH IDLO WR UHPHPEHU ZHOO PHPRUL]HG conversation with Ivo Andric in his return from Bosnia in ZKHQ WKH 5HSXEOLF RI %RVQLD DQG +HU]HJRYLQD RIÂżFLDOO\ 53

Ivo Andric: Letter from 1920 (3LVPR L] JRGLQH), Belgrade, 1992.

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celebrated eighty years from Andricâ&#x20AC;&#x2122;s birth. To my question: â&#x20AC;&#x153;What are your impressions from Bosnia, where you certainly must be worn by praising, entertaining, celebrating?â&#x20AC;? Ivo Andric resignedly replied: â&#x20AC;&#x153;In Bosnia the situation now, Dobrica, is as the deceased Benjamin Kallay only dreamed of, but never dared to say publicly. And may God hold my foot to never march across the Drina again.â&#x20AC;? And as far as I know, it never did again.â&#x20AC;?54 Previous quotes so strongly speak of hatred, that is of animosities we had in mind when we, among other things, analyzed the appropriate statements from the statement of grounds of the verdict rendered by the Court of BiH , no. X-KR-10/928 of July 19th 2010 (see presentation on verdicts delivered on the basis of a plea agreement). Hence the decisions of the Court rendered in the cases that we analyzed in this paper will be suitable instrument to make hatred, which is a fatal and tragic constant of our region, only additionally strengthened and encouraged (by the appropriate power) at a suitable point in the future. In addition, there is a real danger that the future generations of young Serbian national corpus shall succumb to the allegations given by these decisions regarding the construction of the Republic of Srpska, so that such an indoctrination is used to sow and grow inside of them the seeds of resentment and backlash from the Republic of Srpska, which would represent one of a range of forms of selfdenial which the Serbian nation was inclined to in its previous history. Therefore, in this paper we wanted to point out that there is no place for such a spirit (the spirit of self-denial), but also to warn of the danger we must defend ourselves. Dobrica Cosic: Bosnian war (Bosanski rat -3 2IÂżFLDO *D]HWWH %HOJUDGH 2012, p. 243-244.

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LITERATURE*

Books 5DGRPLU ' /XNLÃ¼ %XGLPLU 3 .RÃ£XWLÃ¼ 'UDJDQ 0 0LWURYLÃ¼ 8YRG X SUDYR Ã¾HWUQDHVWR SURÃ£LUHQR L GRSXQMHQR izdanje, Beograd, 1999. godina. 3URI GU =YRQLPLU 7RPLÃ¼ .ULYLÃ¾QR SUDYR ,, 3RVHEQL GLR GUXJR izmijenjeno i dopunjeno izdanje, Sarajevo, 2007. godina. 9ODGLPLU Ä&#x2C6;XULÃ¼ 8VWDY L PHÃ¿XQDURGQL XJRYRUL ,QVWLWXW ]D uporedno pravo, Beograd, 2007. godina. 3URI GU =RUDQ 9XÃ¾LQLÃ¼ 0HÃ¿XQDURGQR UDWQR L KXPDQLWDUQR pravo, Beograd, 2006. godina. 3URI GU 0LRGUDJ 1 6LPRYLÃ¼ SURI GU 0LODQ %ODJRMHYLÃ¼ GRF GU 9ODGLPLU 0 6LPRYLÃ¼ 0HÃ¿XQDURGQR NULYLÃ¾QR SUDYR GUXJR L]GDQMH L]PLMHQMHQR L GRSXQMHQR ,VWRÃ¾QR 6DUDMHYR 2013. godina. (GLQ Ã¢DUÃ¾HYLÃ¼ 8VWDYQR XUHÃ¿HQMH 6DYH]QH 5HSXEOLNH 1MHPDÃ¾NH 6DUDMHYR JRGLQD 3URI GU 0LODQ %ODJRMHYLÃ¼ ,VODPVNL NRQVWLWXFLRQDOL]DP QD LUDQVNL QDÃ¾LQ .UDWND DQDOL]D RVQRYD XVWDYQRJ XUHÃ¿HQMD ,UDQD Banja Luka, 2012. godina. 'U 5DGRPLU ' /XNLÃ¼ 6LVWHP Â¿OR]RÂ¿MH SUDYD %HRJUDG 1992. godina. List of literature is given in the order of its use in the book. In the literature titles are listed in their original titles in Serbian, while in the corresponding footnotes in the book we offered their translations into English.

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'U 5DGRPLU ' /XNLÃ¼ 7HRULMD GUÃ¥DYH L SUDYD II. Teorija prava WUHÃ¼L WRP %HRJUDG JRGLQD =RUDQ 6WRMDQRYLÃ¼ 0HÃ¿XQDURGQR NULYLÃ¾QR SUDYR VNULSWD WUHÃ¼H L]GDQMH %HRJUDG JRGLQD 9RMLQ 'LPLWULMHYLÃ¼ 'UDJROMXE 3RSRYLÃ¼ 7DWMDQD 3DSLÃ¼ 9HVQD 3HWURYLÃ¼ 0HÃ¿XQDURGQR SUDYR OMXGVNLK SUDYD %HRJUDG 2006. godina. D. J. Harris, M. Oâ&#x20AC;&#x2122; Boyle, C. Warbrick: Law of the European Convention on Human Rights, Butterworths, London, Dublin, Edinburgh, 1995, reprinted 1999 and 2000. .RVWD Ã½DYRÃ£NL 3UDYR NDR XPHÃ¼H VORERGH 2JOHG R YODGDYLQL SUDYD GUXJR GRSXQMHQR L]GDQMH -3 à¯&#x2020;6OXÃ¥EHQL glasnikâ&#x20AC;&#x153;, Beograd, 2005. godina. Dr. Snezana Savic: Konstitutivnost naroda u Bosni i Hercegovini, Banja Luka, 2000. Dr. Kasim Trnka: Konstitutivnost naroda, Sarajevo, 2000. Rajko Kuzmanovic: Ustavno pravo, Banja Luka, 2006. Marko Mikerevic: Sarajevski kazani smrti, Doboj 2004. Mary Ann Glendon, Michael W. Gordon, Paolo G. Carozza: Comparative Legal Traditions, second edition, St. Paull, Minn, 1999. Milo Lompar: Duh samoporicanja, Prilog kritici srpske NXOWXUQH SROLWLNH 8 VHQFL WXÃ¿LQVNH YODVWL WUHÃ¼H GRSXQMHQR izdanje, Novi Sad, 2012. godina. 'U 0LODQ %ODJRMHYLÃ¼ 3UDYQD SULURGD L SRORÃ¥DM %UÃ¾NR distrikta u Bosni i Hercegovini, Doboj, 2002. godina.

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,YR $QGULÃ¼ 3LVPR L] JRGLQH %HRJUDG godina. 'REULFD Ã»RVLÃ¼ %RVDQVNL UDW -3 Â³6OXÃ¥EHQL JODVQLNÂ´ Beograd, 2012. godina. Articles Olivier Cahn i Raphael Parizot: -XJHU HQ %RVQLH Â± +HU]HJRYLQH OHV FULPHV GH JXHUUH FRPPLV HQ H[ Â± <RXJRVODYLH Quelle loi? Quel Juge" Ã¾DVRSLV $- 3HQDO -XULVSUXGHQFH novembar, 2013 godina. 'DPMDQ .DXULQRYLÃ¼ GRF GU 0LODQ %ODJRMHYLÃ¼ 3RYUDWQR GHMVWYR NULYLÃ¾QRJ ]DNRQD Â± DNWXHOQR SLWDQMH VXGVNH SUDNVH X %RVQL L +HUFHJRYLQL Ã¾DVRSLV 6WUDQL SUDYQL Ã¥LYRW EURM Institut za uporedno pravo, Beograd, 2008. godina. 'U 0LODQ %ODJRMHYLÃ¼ .RQWUROD XVWDYQRVWL L ]DNRQLWRVWL Ã¾DVRSLV =,36 EURM 6DUDMHYR JRGLQD Dejan Vanjek: Predstavnici i pripadnici konstitutivnih naroda â&#x20AC;&#x201C; pitanje konstitutivnosti i legitimiteta available at http://www.idpi.ba/konstitutivnost-legitimitet/ $]UD 0LOHWLÃ¼ ,QVWLWXW YUHPHQVNRJ YDÃ¥HQMD ]DNRQD X SUHGPHWLPD UDWQLK ]ORÃ¾LQD SUHG 6XGRP %L+ )RQGDFLMD &HQWDU za javno pravo (CJP), Sarajevo, http://www.fcjp.ba/templates/ ja_avian_ii_d/images/green/Azra_Miletic1.pdf. 'U 0LODQ %ODJRMHYLÃ¼ 2 SUREOHPLPD NRMH VWYDUD VSRUD]XP R SUL]QDQMX NULYLFH X RGUHÃ¿HQLP VLWXDFLMDPD %LOWHQ 2NUXÃ¥QRJ suda u Banjaluci, broj 19-20, Banja Luka, 2012. godina.

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Milan Skulic, PhD Full Professor of the Faculty of Law University of Belgrade REVIEW

of the manuscript by Assoc. Prof. Milan Blagojevic, PhD ŕŻ&#x2020;8QFRQVWLWXWLRQDO 5HWURDFWLYH ,PSOHPHQWDWLRQ of Incrimination Crimes against Humanity in the Practice of the Court of BiH â&#x20AC;&#x201C; Disturbed Precedenting of the Lawâ&#x20AC;? Second, revised edition The subject of this review is the manuscript of the second, revised edition of the monograph written by Assoc. Prof. 0LODQ %ODJRMHYLF 3K' HQWLWOHG ŕŻ&#x2020;8QFRQVWLWXWLRQDO UHWURDFWLYH implementation of incrimination crimes against humanity â&#x20AC;&#x201C; Disturbed precedenting of the lawâ&#x20AC;&#x153;. The monograph correctly analyzes incrimination crimes against humanity. The mentioned incrimination is analyzed from the internationl law point of view, but also in the context of comparative and domestic constitutional and criminal law. The author correctly observes something that neither the domestic nor foreign law literature has not dealt with so far. By analyzing the relevant legal sources, both domestic and international, the author correctly concludes that the being of incrimination crimes against humanity changed its content ZLWK WLPH ,Q WKLV VHQVH WKH PRQRJUDSK RQ VFLHQWLÂżFDOO\ proved basis, indicates that only after the entry into force of

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the Rome Statute of the International Criminal Court in 2002, the being of this incrimination gets new elements of crucial importance. These are widespread and systematic attack against a civilian population, and the knowledge of the perpetrator for the existence of such an attack, which as elements of this incrimination were not prescribed by any international general legal act until the appearance of the Rome Statute. Therefore, the originality and contribution of this paper to the study of the aforementioned issues should be particularly praised. 7KHVH TXDOLWLHV RI WKH DXWKRUÂśV ZRUN DUH FRQÂżUPHG E\ transposition of the above mentioned correct conclusions RQWR WKH ÂżHOG RI GRPHVWLF FULPLQDO ODZ WKDW LV FULPLQDO ODZ in Bosnia and Herzegovina. In this sense, unconstitutional retroactive implementation of incrimination crimes against humanity under the Article 172 of the Criminal Code of BiH in the practice of the Court of Bosnia and Herzegovina is being FULWLFL]HG E\ WKH DXWKRU RQ VFLHQWLÂżFDOO\ VRXQG EDVLV HYHQ LQ this revised edition. The author successfully proves that this is the case of unconstitutional retroactive implementation by the fact that the being of the criminal offense under the Article 172 of the Criminal Code of BiH, with the content prescribed by this Article, simply did not exist until the entry into force of the Rome Statute of the International Criminal Court. Consequently, the implementation of this incrimination on the events happened during the war in BiH in the period 19921995 is deprived of any valid legal basis, which is skillfully proved by the author through criticizing the whole series of judgments of the Court of BiH. However, in the monograph the author rightfully goes beyond criticizing the decisions of this Court, and makes the series of judgments by the Hague Tribunal, decisions by the Constitutional Court of Bosnia and

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Herzegovina and the European Court of Human Rights the VXEMHFW RI MXVWL¿FDWLYH FULWLFLVP 7KLV DGGV PRUH TXDOLW\ WR KLV monograph because the author in the appropriate places uses a whole arsenal of legally founded arguments to successfully indicate the unfoundedness of the allegations made by the aforementioned legal institutions regarding the implementation of this incrimination in the context of the events which took place during the past war in BiH. 6SHFL¿F YDOXH JLYHQ WR WKH PRQRJUDSK ZULWWHQ E\ $VVRF Prof. Milan Blagojevic with its second, revised edition is the author’s proper indication of the fact that the mentioned judicial institutions are not capable to understand the core of the problem in this case. Regarding it the author rightly emphasizes the fact that one question refers to whether the incrimination crimes against humanity was part of the international law. In his response the author states that it cannot be denied that this incrimination is part of that law, but not part of international customary law nor any principle of the international law. Instead, it is part of international law, since it is prescribed by the Statute of the Nuremberg Tribunal, the Statute of the International Criminal Tribunal for the Far East and the Principles of International Criminal Law adopted by the General Assembly of the United Nations. However, none of these international general legal acts, nor the Statute of the Hague Tribunal, in the very being of this crime KDYH QRW VSHFL¿HG as its elements the widespread and systematic attack directed against a civilian population and the knowledge of the perpetrator for such an attack. And that is exactly the essence of the problem the author addresses in this monograph. The mentioned elements became part of this incrimination in 2002, with the entry into force of the Rome Statute of the International Criminal Court, which made this

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incrimination essentially receive a qualitatively different content. Therefore, in such a state of affairs we cannot, in legally valid way, accuse and condemn individuals for incrimination under the Article 172 of the Criminal Code of BiH, since it and its EHLQJ GHÂżQHG E\ WKLV $UWLFOH VLPSO\ GLG QRW H[LVW DW WKH WLPH RI the past war in BiH. Besides, even if it was accepted that incrimination crimes against humanity existed as part of the international law, direct implementation of these rules would not be possible according to the principle of legality, since the international law has never prescribed the punishment for the particular criminal offense, DQG LW LV QRW SRVVLEOH L H LW LV QRW MXVWLÂżHG WR ÂłDSSUR[LPDWHO\Â´ impose the punishment based on the punishments prescribed for some other â&#x20AC;&#x153;similarâ&#x20AC;? crimes. A monograph which is the subject of this review is written very clearly, and such are the interpretations it offers, while the topic discussed is shown systematically and in clear script. In addition, the text is written in a simple style that allows the book to be acceptable to, not only the professional, but also the wider public. Bearing in mind everything said above it is my pleasure to recommend for publishing the manuscript by Assoc. Prof. Milan Blagojevic, PhD, entitled â&#x20AC;&#x153;Unconstitutional retroactive implementation of incrimination crimes against humanity in the practice of the Court of Bosnia and Herzegovina â&#x20AC;&#x201C; Disturbed precedenting of the lawâ&#x20AC;?, second, revised edition. Belgrade, 18th February 2015

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REVIEW

of the manuscript written by Assoc. Prof. Milan Blagojevic, PhD, â&#x20AC;&#x153;Unconstitutional retroactive implementation of incrimination crimes against humanity in the practice of the Court of Bosnia and Herzegovina (Disturbed precedenting of the Law), Second, revised editionâ&#x20AC;? The paper written by Assoc. Prof. Milan Blagojevic, PhD, HQWLWOHG ŕŻ&#x2020;Unconstitutional Retroactive Implementation of ,QFULPLQDWLRQ &ULPHV DJDLQVW +XPDQLW\ LQ 3UDFWLFH RI WKH &RXUW RI %RVQLD DQG +HU]HJRYLQD 'LVWXUEHG 3UHFHGHQWLQJ RI WKH /DZ Second, revised editionâ&#x20AC;&#x153;, conceptually and methodologically VSHDNLQJ UHSUHVHQWV D FRPSOH[ PRQRJUDSK LQ WKH ÂżHOG RI OHJDO science. The author is an Associate Professor of Constitutional Law and Administrative Law, but also a jurist with many \HDUV RI SUDFWLFDO H[SHULHQFH ZKRVH SUHYLRXV VFLHQWLÂżF ZRUN shows that he is a studious researcher who pays special and thorough attention to examine classic issues of constitutional and administrative law, but also the complex matters in which knowledge and understandings from different legal disciplines are refracted. In this light we should observe and commend the authorâ&#x20AC;&#x2122;s second, revised edition of his monograph which again represents a praiseworthy endeavour to conduct the analysis of

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unconstitutional retroactive implementation of incrimination crimes against humanity in the practice of the Court of BiH. The reviewed monograph is not (merely), as it might be wrongly assumed on the basis of the title, the paper that analyzes a single, spatially and temporally bounded phenomena, but rather a complex paper that represents a deep and comprehensive analysis of incrimination crimes against humanity, both in international law, and in positive comparative and domestic constitutional and criminal law. This paper does not study only the practice of the Court of BiH, but also the practice of the Hague Tribunal and the European Court of Human Rights regarding this issue. Since these issues have not been the subject of special attention in the national legal literature, at least not in the way in which prof. %ODJRMHYLĂź KDV VWXGLHG WKHP ZH KDYH WR HVSHFLDOO\ SUDLVH WKH originality and contribution of this paper, provided by the author and his studious research. The structure of the paper is characterized by a clear concept. 7KH DXWKRU ÂżUVW DQDO\]HV WKH HPHUJHQFH DQG GHYHORSPHQW of incrimination crimes against humanity in the relevant international legal documents, then he explains the normative regulation and content of the principle of legality in comparative FRQVWLWXWLRQDO ODZ DQG FULPLQDO ODZ DQG WKHQ VSHFLÂżFDOO\ observes the practice of the Court of BiH through the prism of WKH DERYH PHQWLRQHG ,Q WKH ÂżUVW SDUW WKH DXWKRU SD\V VSHFLDO attention to indicate the differences evident in determining a being of the criminal offense crimes against humanity before LW LV GHÂżQHG E\ WKH 5RPH 6WDWXWH RI WKH ,QWHUQDWLRQDO &ULPLQDO Court, and then states that the construction of the criminal offense crimes against humanity in any of the legal documents, until the Statute of the Tribunal for Rwanda was adopted, does

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not recognize systematic or widespread attack, or knowledge of such an attack, as conditions for the existence of the crime. Moreover, even the inclusion of these elements into the being of the criminal offense crimes against humanity in the Statute of the Tribunal for Rwanda, does not make these elements become an integral part of this international crime, since the Statute of the Tribunal has its own time, space and personal limitations. However, despite the above, the author notes that in the practice of some international judicial institutions through “Tribunal reincrimination” or “Tribunal additional incrimination” there happens a sort of judicial law-making where it, by no means, must not happen, since the matter we deal with here is a matter of criminal law. Everything that he analyzed regarding the development of incrimination crimes against humanity in the relevant international documents and in terms of normative regulation and content of the principle of legality in comparative constitutional law and criminal law, the author chose with care and the aim of reviewing relevant practice of the Court of BiH and the Constitutional Court of BiH in cases in which the trial was conducted for crimes against humanity. The author concludes that these cases brought to the unconstitutional retroactive implementation of incrimination FULPHV DJDLQVW KXPDQLW\ DQG WKDW IHHGEDFN LQÀXHQFH RI WKH practice of some international tribunals on the practice of the Court of BiH is a kind of, as it is sharply emphasized by the subtitle of this paper, disturbed precedenting of the law. However, the author does not dwell only on legal analysis, but he also introduces the elements of politicological approach, noting in his concluding remarks that the explanation of the reasons for such actions by the Court of BiH and the &RQVWLWXWLRQDO &RXUW RI %L+ LV QRW WR EH IRXQG RQO\ LQ WKH ¿HOG

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of criminal law but, for this purpose, it is also necessary to enter WKH ÂżHOG RI FRQVWLWXWLRQDO ODZ KLVWRULRJUDSK\ DQG LGHRORJ\ The author holds the view that, after an analysis within the JLYHQ ÂżHOGV LW FDQ EH FRQFOXGHG WKDW WKH PDLQ UHDVRQ IRU WKH unconstitutional retroactive implementation of incrimination crimes against humanity lies in the intention to display the Republic of Srpska, in the verdicts made on the basis of such LPSOHPHQWDWLRQ DV ŕŻ&#x2020;FULPLQDOÂ´ LQ OHJDO DQG KLVWRULFDO VHQVH DQG that therefore it cannot represent a constitutional construction in state organization. Having in mind all said, it can be clearly concluded that the reviewed paper written by Assoc. Prof. Blagojevic can be not merely a legal study whose deep theoretical considerations go beyond the practical value of a comment, but also an interesting and worth reading literature for lawyers, historians and political scientists who intend to H[SDQG WKHLU NQRZOHGJH DQG WR VFLHQWLÂżFDOO\ UHVHDUFK DQG profoundly comprehend the postwar development of BiH. The value added to the monograph written by Assoc. Prof. Milan Blagojevic, PhD, especially by its second, revised HGLWLRQ LV WKDW WKH DXWKRU UHFRJQL]HG DQG VFLHQWLÂżFDOO\ SURYHG and indicated the essence of the problem in this case. Namely, it cannot be denied that the crimes against humanity are part of international law, but not customary international law nor a principle of international law. However, none of the international legal acts adopted before the entry into force of the Rome Statute of the International Criminal Court prescribed a widespread and systematic attack directed against a civilian population and knowledge of the perpetrator of that crime for such an attack as the elements of the being of this crime. That is the essence of the problem which could not have been recognized (or perhaps

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did not want to be recognized) by the judicial institutions which decided in cases related to the mentioned incrimination. These elements became part of the mentioned incrimination in 2002, with the entry into force of the Rome Statute of the International Criminal Court, by which this incrimination from that moment essentially got a qualitatively different content. Therefore, in such situations it is not possible to accuse and condemn individuals, in legally valid way, of the incrimination according to the Article 172 of the Criminal Code of BiH, since it and its EHLQJ DV GHÂżQHG E\ WKDW $UWLFOH VLPSO\ GLG QRW H[LVW DW WKH WLPH of the past war in BiH. Finally, it should be noted that the paper written by Assoc. Prof. Blagojevic is again characterized by clear expression and simple style, clarity of exposition and systematic approach in SURFHVVLQJ WKH PDWWHU DV ZHOO DV WKH SURSHU XVH RI VFLHQWLÂżF terminology that successfully presents the observed matter. Based on everything said above, it is my pleasure to recommend for publishing the manuscript written by Assoc. Prof. Milan Blagojevic, PhD, entitled Unconstitutional Retroactive Implementation of Incrimination Crimes against +XPDQLW\ LQ 3UDFWLFH RI WKH &RXUW RI %RVQLD DQG +HU]HJRYLQD 'LVWXUEHG 3UHFHGHQWLQJ RI WKH /DZ 6HFRQG UHYLVHG HGLWLRQ Belgrade, 14th February 2015

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of the Second, revised edition of the book written by Assoc. Prof. Milan Blagojevic, PhD, UNCONSTITUTIONAL RETROACTIVE IMPLEMENTATION OF INCRIMINATION CRIMES AGAINST HUMANITY IN THE PRACTICE OF THE COURT OF BOSNIA AND HERZEGOVINA After only six months, Assoc. Prof. Milan Blagojevic GHFLGHG WR SXEOLVK D QHZ VLJQLÂżFDQWO\ H[WHQGHG RU PRUH precisely - the revised edition of his book Unconstitutional Retroactive Implementation of Incrimination Crimes against Humanity in the Practice of the Court of Bosnia and Herzegovina, which was issued as the joint publication RI WKH Âł2IÂżFLDO *D]HWWH RI WKH 5HSXEOLF RI 6USVNDÂ´ DQG 6HUELDQ Educational and Cultural Society â&#x20AC;&#x153;Prosvjetaâ&#x20AC;? - City Board Banja Luka, in the middle of 2014. The mentioned fact, i.e. a new, revised edition of the said publication decided on by its author, has at least two meanings and implies as many consequences. First, the publishing of new edition of any publication in a number of modest literature market of the Republic of Srpska, even when the literature market of the Federation of BiH is included, implies that it, the publication, found its way to the reader, that it has got its recipients and consumers, that is, simply put, that there is a need for it. Second, the willingness of the author to supplement

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the previous edition of his manuscript demonstrates his responsibility towards the book he gave over to the judgment of the readers and his self-awareness that there is more to say about the topic he elaborated and placed in the paper of the PHQWLRQHG WLWOH WKH WRSLF ZKLFK KH EHOLHYHV LV QRW GHÂ¿QLWHO\ closed. On the contrary! 7KH PDQXVFULSW RI D QHZ HGLWLRQ KDV EHHQ VLJQLÂ¿FDQWO\ expanded, i.e. supplemented by a whole new chapter. The author situated it as Chapter VII and entitled it Disturbed Precedenting of the Law in Practice, which added 30 more pages to a new edition. Due to the fact that, as reviewers, we VWLFN WR RXU PDUNV JLYHQ WR WKH FRQWHQW RI WKH Â¿UVW HGLWLRQ RI the book, herein we have a duty to give our opinion on the innovated part of a manuscript only. As it has already been emphasized, Blagojevicâ&#x20AC;&#x2122;s efforts to deepen and broaden the insights and understandings of the LVVXHV KH HODERUDWHG LQ WKH Â¿UVW HGLWLRQ RI Unconstitutional Retroactive Implementation of Incrimination Crimes against Humanity in the Practice of the Court of Bosnia and Herzegovina is praise worthy. He did this by offering us new empirical material, which is, in fact, the result of analysis of the (non)work of the Court of Bosnia and Herzegovina in VSHFLÂ¿F FRXUW FDVHV VXFK DV WKH MXGJPHQW RI WKH &RXUW RI %RVQLD DQG +HU]HJRYLQD LQ WKH FDVH RI WKH 3URVHFXWRUÂ¶V 2IÂ¿FH RI %L+ against Ratko Dronjak (there are two documents regarding it: the judgment of the Court of BiH of 1st June 2012 and the judgment of the Appellate Division of the Court of BiH of 21st February 2013), then in the practice of the European Court of Human Rights in Strasbourg (case Boban Simsic against

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Bosnia and Herzegovina), the Constitutional Court of Bosnia and Herzegovina (Decision of the Constitutional Court of BiH, No. AP 3280/13, of 7th October 2014), as well as the Hague Tribunal (especially in cases the Prosecutor vs. Dusko Tadic and the Prosecutor vs. Radoslav Brdjanin). Namely, referring to and extensively quoting mentioned sources, as the author he proves that the problem of precedenting the law through unconstitutional retroactive implementation of incrimination crimes against humanity consists of using “the pronouncements of the judgments of the Court of BiH to put forth ¿UVW WKH DOOHJDWLRQV RI ZLGHVSUHDG DQG V\VWHPDWLF DWWDFN RI WKH Army of the Republic of Srpska and other Republic of Srpska armed formations against the civilian population (representing FULPLQDO DQG OHJDO FRQYLFWLRQ RI QRW RQO\ LQGLYLGXDOO\ VSHFL¿HG natural persons to who these judgments refer but also the same kind of condemnation of the Republic of Srpska)”, but “the reasoning of the judgment after that offers no valid evidence or argument for such claims. Referring in these judgments to the relevant parts of the judgments of the European Court of Human Rights and War Crimes Tribunal in the Hague is defective, since the judgments of those institutions are also defective. Unsoundness of such behavior is the result of persistent, legally unfounded insistence on the fact that the crimes (in this case crimes against humanity) can be determined through legal principles, i.e. custom. Therein, this claim also lacks valid arguments, which should not be a surprise due to the fact that the being of crimes against humanity is not derived from a legal principle nor the result of customary behaviour. Instead, the content of being of this crime, as it exists in the Article

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172 of the Criminal Code of BiH (especially concerning the widespread and systematic attack against civilian population and knowledge of the perpetrator of such attack), was made through contracting, adoption and entry into force of the Rome Statute of the International Criminal Court. This is, among RWKHU WKLQJV FOHDUO\ LQGLFDWHG E\ WKH IDFW ÂŤ WKDW WKH VSHFLÂżF meaning (in terms of the principle lex certa) of the notion attack (widespread or systematic) directed against the civilian population, as well as the policy to commit such attack, has been determined in the elements of the crime, adopted pursuant to the Article 9 of the Rome Statute.â&#x20AC;? The above quote can be considered as a kind of recapitulation of the authorâ&#x20AC;&#x2122;s view vis-a-vis the problem of unconstitutional implementation of one incrimination which was sanctioned in the recent international criminal law (widespread or systematic attack against civilian population), and which retroactively (and this is what makes it unconstitutional) refers to acts committed in time and under circumstances when the mentioned incrimination was not treated as a criminal offense. Through meticulous analysis of the above mentioned judgments of the Court of Bosnia and Herzegovina, and the judgments of the Tribunal in The Hague, the decisions of the European Court of Human Rights and the Constitutional Court of BiH, Assoc. Prof. Blagojevic actually shows â&#x20AC;&#x153;Resavaâ&#x20AC;? tradition of the mentioned judicial instances, which implies irresponsibility, and perhaps incompetence of, primarily judges, and then prosecutors, since they uncritically accept and copy incorrectly determined factual VLWXDWLRQ LPSUHFLVHO\ GHÂżQHG LQFULPLQDWLRQ LQVXIÂżFLHQWO\ reasoned judgments, etc., which, due to its frequency, becomes

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the practice and â&#x20AC;&#x153;traditionâ&#x20AC;? of judging in post-Dayton Bosnia and Herzegovina, to the detriment of the accused but also the rights and justice. Besides the fact that he proved himself to be patient, persistent, systematic and studious analyst and interpreter of court judgments, indictments and other material relevant to the subject he deals with in a new chapter of his manuscript on precedenting of the law by unconstitutional retroactive implementation of incrimination crimes against humanity, Milan Blagojevic, PhD by his newly written pages demonstrates not only the civil courage to undertake the elaboration of themes and issues that have undoubted political connotations and consequences, but in his excurses he directly enters the ÂżHOG RI RWKHU VFLHQWLÂżF OHJDO DQG SUDFWLFDO GLVFLSOLQHV VXFK DV constitutional law, political system, political science, history, VRFLRORJ\ HWF 7KLV LV QRW GLIÂżFXOW WR SURYH ZKHQ ZH WDNH LQWR account issues â&#x20AC;&#x201C; beside the main topic considering disturbed precedenting of the law as shown through the examples of the given judgments of the Court of BiH - which he discusses in the new chapter. In order not to remain simply a legal positivist, %ODJRMHYLF DOZD\V VLWXDWHV WKH VXEMHFW RI KLV UHĂ&#x20AC;HFWLRQV LQ WKH VSHFLÂżF KLVWRULFDO VRFLDO SROLWLFDO UHOLJLRXV WUDGLWLRQDO DQG VLPLODU FRQWH[W SURYLQJ WKXV WKDW ODZ DV D VSHFLÂżF DUHD of social and historical existence, content and form of human practice, social awareness, norms and sanctions, is not some metaphysical or abstract category, but rather the pulse itself, the heart of real social relationships, expression and sublimate of, at least, some social currents, power relations and the like. In such an atmosphere we should observe and understand

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KLV ÂłH[FXUVLRQVÂ´ LQWR WKH ÂżHOGV DQG WRSLFV VXFK DV WKH RULJLQ ontology and phenomenology of hatred in Bosnia and Herzegovina as one of the causes and constituents of the Civil War in it, and at the same time, as the obstacle to strengthening trust and reconciliation between its formerly warring parties, i.e. ethnic and religious entities and political subjects within it, then the question of legitimacy and legality of referendum held in the pre-war BiH, organized by different actors (the Serbs in 1991, the Muslims, today Bosniaks, and Croats in 1992), with different referendum issues, whose outcomes were differently received and evaluated by the so-called international FRPPXQLW\ WKDW KDG XVH LW DV D JDVROLQH WR ÂżJKW WKH ZDU ÂżUH LQ BiH, all the way up to the topic of law practice. Having in mind the highlighted advantages of Blagojevicâ&#x20AC;&#x2122;s innovated manuscript, there is nothing else to do but to unreservedly recommend it to the publishers for publication. ,WV SXEOLFDWLRQ ZLOO HQVXUH PXOWLSOH EHQHÂżWV IRU WKH OHJDO profession and judicial institutions of more than merely our nation-building entity. In Banja Luka, 5th February 2015

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About the author Milan (Vukasin) Blagojevic was born on May 12th, 1965, in Gracanica, in the SR Bosnia DQG +HU]HJRYLQD ZKHUH KH ÂżQLVKHG HOHPHQWDU\ and high school. He gained his Bachelorâ&#x20AC;&#x2122;s degree in Law from the Faculty of Law, University of Sarajevo in 1991, and passed his Bar exam in 1994. He earned his Masterâ&#x20AC;&#x2122;s degree in Law Science from the Faculty of Law, University of Banja Luka in January 2000, and his PhD degree from the Faculty of Law, University of Belgrade in May 2002. In his professional career of a judge he worked as the president of the Magistratesâ&#x20AC;&#x2122; Court in Petrovo at Ozren, judge of the Military Court in Bijeljina, judge of the Basic Court in Doboj (Criminal Department) and judge of the Municipal Court in Travnik (Litigation Department). He has been working as a judge of the District Court in Banja Luka since July 1st, 2012 (Administrative Dispute Department). In the period from 1996 to 2000 he was the President of the Municipal Election Commission of Petrovo Municipality, and in 2004 and 2005 he worked as a Head of Department for General Administration of Petrovo Municipality. In 2010 and 2011 he worked as a legal advisor to the Director of the Republic Administration for Geodetic and Property Affairs of the Republic of Srpska. For a short time (in 2007 and 2008), he worked as Assistant Director of the Centre for Judicial and Prosecutorial Training of the Republic of Srpska and Head of Legal Department of the â&#x20AC;&#x153;Republic of Srpska Railwaysâ&#x20AC;? (2008).

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0LODQ %ODJRMHYLÃ¼ LV DQ $VVRFLDWH 3URIHVVRU LQ WKH Â¿HOG of Constitutional Law and professor at the College where he teaches Criminal Law and Criminal Procedural Law. As a professor he has been giving lectures at different schools of higher education for more than seven years, during which he has taught Constitutional Law, Introduction to Law, Administrative Law, Criminal Law, Criminal Procedural Law and Major Legal Systems. He is the author or co-author of 21 books on law (14 books as the author and 7 as the co-author) DQG PRUH WKDQ VFLHQWLÂ¿F DQG H[SHUW SDSHUV LQ WKH Â¿HOG RI ODZ SXEOLVKHG LQ VFLHQWLÂ¿F DQG SURIHVVLRQDO PDJD]LQHV LQ %DQMD /XND 6DUDMHYR 'RERM %HRJUDG 1LÃ£ DQG .RWRU +H LV the co-author of a university textbook International Criminal Law, which has been published in two editions so far. Among the monographs he wrote there are three practicum handbooks for court proceedings: Practicum on Criminal Procedural Law (two editions), Practicum on Civil Procedure and Practicum on Administrative Dispute. Four of his monographs have been translated into English.