The Court of Bosnia and Herzegovina

21.3.2.2.1 General remarks

International criminal law not only appeals to international courts and tribunals but also affects national courts. Especially for the prosecution of organised crime there exist national competences that are both initiated and justified by international criminal law. The first example is the fight against organised crime in Bosnia and Herzegovina. In order to cope judicially with the Yugoslav Civil War after the end of the temporary ICTY mandate, and in order to relieve this tribunal by taking over the prosecution of lower-rank defendants during its mandatory period, a national criminal court with corresponding competences was established in Bosnia and Herzegovina.[1] It is exceptional that this court’s jurisdiction also covers organised crime alongside the four international core crimes.[2] [3] We may use the example of this Court of Bosnia and Herzegovina (hereinafter referred to as SBiH for SudBosneiHercegovine, СудБоснеиХерцеговине),5! to outline the jurisdictional establishment of international criminal law for the prosecution of organised crime, and go further into the question whether there are any, and if so, what kinds of solution designated by this internationally initiated criminal legal system to solve possible conflicts of competence.

21.3.2.2.2 Regulations governing the establishment of the court

The SBiH was established in order to relieve the ICTY in prosecuting war crimes. Only high-rank representatives were supposed to be tried in The Hague, whereas hierarchically inferior defendants should be taken to a regional criminal court/[4] Article 24(2) of the Law on SBiH requires the court’s panel to contain both domestic and international judges/[5] [6] [7] [8] [9] and therefore the SBiH could be classed as a ‘hybrid’ tribunals Even so, the panel now consists of domestic judges only“

Ratione materiae the jurisdiction did not stay restricted to war crimes, however. The court was initially established by the Law on the Court of Bosnia and Herzegovina, enacted by the High Representative of the UN on 12 November 2000.56 Under Article 7(1) of the latest version of this law, its jurisdiction extends ratione materiae to all crimes defined by the domestic criminal code of Bosnia and Herzegovina (ccBH)”

In 2002 the High Representative recommended the establishment of a specialized section in the court to deal with war crimes.[10] Implementing this intention the panels were divided into three sections having jurisdiction over war crimes (section I), organised crime, economic crime, and corruption (section II) and all other general crimes (section III)/[11]

This is a fundamental feature that distinguishes the genesis of the organised crime- related jurisdiction of the SBiH from other domestic jurisdictions: admittedly, national jurisdiction always arises out of the state’s monopoly on the use of force.[12] [13] [14] [15] However, never before were an international initiative and an international legal agreement required in order to assign a domestic court jurisdiction, not only in terms of organization to set up a specialized department, but also ratione materiae.

The jurisdiction over organised crime is primarily determined by Article 250 ccBH;6! it is dominated by the principles of territoriality, flags, and nationality without any identifiable priority for or against one or the other area of operation^2

21.3.2.2.3 Case law

In view of this explicit jurisdiction, the SBiH has been concerned with many cases of organised crime in recent years: it has dealt with a range of charges, such as the offence of organised crime in violation of Article 250(1) ccBH, in conjunction with the criminal offence of smuggling of persons in violation of Article 189(1) and (2) ccBH and the criminal offence of illicit trafficking in narcotic drugs in violation of Article 195(2) ccBH/3

21.3.2.2.4 Conflicts concerning jurisdiction

Against this background, in the case of cross-border organised crime,64 conflicts of jurisdiction stricto sensu, that is to say the concurrent applicability of more than one national or supranational jurisdiction without any direct rule of priority,65 are possible in two ways: firstly, through the applicability of the international law of the ICTY or the ICC; secondly, through the applicability of the national law of a neighbouring state.

As far as the jurisdictions of the ICTY and the ICC are concerned, I would first observe that intersections between the offence of organised crime subject to Article 250 ccBH and the four core crimes laid down in Articles 6ff. ICCSt and Articles 2ff. of the Statute of the ICTY can only be possible fragmentarily. Therefore, ratione materiae, the conflict can only relate to a (small) scope of intersection. In addition to that, the principle of complementarity explicitly declares national law superior to that of the ICC,66 and the nature of the subject matter introduces a clear distinction between organized crime and the four core crimes under the ICTY (see 21.3.1.3).

Hence jurisdictional conflicts only arise in relation to other domestic jurisdictions of neighbouring states such as Croatia or Serbia. In the cross-border setting it is easy to imagine case scenarios in which Bosnian gangs importing drugs or exporting prostitutes find themselves responsible not only under Article 250 ccBH but also under a neighbouring state’s law because of the victim’s nationality or because the crime contravenes that state’s legitimate protective interests.

  • [1] Cf. introductory and extensively William W. Burke-White, ‘The domestic influence of InternationalCriminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the creation ofthe State Court of Bosnia & Herzegovina’, (2008) 46 CJTL 279-350.
  • [2] See section 21.3.1 of this chapter.
  • [3] 51 Cf. the homepage of the Court http://www.sudbih.gov.ba/?jezik=e, accessed 13 July 2015.
  • [4] Cf. Burke-White, ‘Domestic influence’, pp. 281ff., 288ff., cited in note 49 above.
  • [5] Law SBiH available via http://www.sudbih.gov.ba/files/docs/zakoni/en/Law_on_Court_BiH_-_Consolidated_text_-_49_09.pdf, accessed 13 July 2015.
  • [6] Fidelma Donlon, ‘Hybrid tribunals’, in William A. Schabas (ed.), Routledge Handbook oflnternationalCriminal Law, London, Routledge, 2011, pp. 85, 96.
  • [7] See http://www.sudbih.gov.ba/?opcija=bio&jezik=e, accessed 13 July 2015, for the composition ofthe court.
  • [8] Decision of the High Representative: http://www.sudbih.gov.ba/files/docs/zakoni/en/Zakon_o_sudu_-_eng.pdf, accessed 13 July 2015.
  • [9] 57 ‘The Court has jurisdiction over criminal offences defined in the Criminal Code of Bosnia andHerzegovina and other laws of Bosnia and Herzegovina.’ The version of Law SBiH current at the date ofwriting, cited in note 53 above.
  • [10] Cf. the Statement by the President of the Security Council, UN Sec Council S/PRST/2002/21 available from http://www.un.org/en/ga/search/view_doc.asptsymboUS/PRST/2002/21, accessed 13 July 2015.
  • [11] 59 See Art. 14(1) Law SBiH and also the ‘Registry Agreement’ of the SBiH available from http://www.sudbih.gov.ba/files/docs/zakoni/en/Registry_Agreement_English_version.pdf, accessed 13 July 2015.
  • [12] Albin Eser, in Schonke/Schroder, Strafgesetzbuch, 29. Aufl. (Munich 2014), Vor §§ 3-9 Rn. 5, 8ff.
  • [13] 61 ‘(1) Whoever perpetrates a criminal offence prescribed by the law of Bosnia and Herzegovina as amember of an organized criminal group, unless a heavier punishment is foreseen for a particular criminal offence, shall be punished by imprisonment for a term not less than three years. (2) Whoever as a member of an organized criminal group perpetrates a criminal offence prescribedby the law of Bosnia and Herzegovina, for which a punishment of imprisonment of three yearsor a more severe punishment may be imposed, unless a heavier punishment is foreseen for a particular criminal offence, shall be punished by imprisonment for a term not less than five years. (3) Whoever organizes or directs at any level an organized criminal group which by joint actionperpetrates or attempts to perpetrate [a] criminal offence prescribed by the law of Bosnia andHerzegovina, shall be punished by imprisonment for a term not less than ten years or a long-termimprisonment. (4) Whoever becomes a member of an organized criminal group which by joint action perpetratesor attempts to perpetrate [a] criminal offence prescribed by the law of Bosnia and Herzegovina,unless a heavier punishment is foreseen for a particular criminal offence, shall be punished byimprisonment for a term not less than one year. (5) A member of an organized criminal group referred to in paragraph 1 through 4 of this Article,who exposes the organized criminal group, may be released from punishment.’
  • [14] However, exactly this discussion characterizes the present-day development in Germany, cf. BerndHecker, ‘Die rechtlichen Moglichkeiten der Europaischen Union zur Losung von Kompetenzkonflikten’,in A. Sinn (ed.), Conflicts of Jurisdiction in Cross-border Crime Situations, Osnabruck, UniversitatsverlagOsnabruck, 2012, pp. 97-8 (‘Hierarchisierung’); A. Eser, in Schonke/Schroder, Rn. 11, cited in note 60above; AnwK-StGB/Mark A. Zoller, Vor § 3 Rn. 9.
  • [15] Cf. SBiH, No. S1 2 K 002587 11 K (Ref. No. X-K-09/719; 17 June 2011), p. 12; S1 2 K 005325 11 K (12April 2011), pp. 13, 16ff., 22; S 1 2 K 002500 10 Ko (Ref. No. X-KRN-10/1036, 25 February 2011), p. 2ff., 6;
 
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