OSCE Mission warns parliamentarians: BiH Court's jurisdiction narrowed, war crimes and genocide must be returned to the law's text

(Patria) - The OSCE Mission sent a letter to the BiH Parliamentary Assembly, the House of Peoples, and all caucuses on May 27th this year, concerning the proposed Law on the Court of BiH, which is on the agenda of the sessions of both houses of the BiH PA, to be considered under urgent procedure on May 28th and 29th.

What Patria warned about last week, and which the OSCE Mission is now emphasizing, is that the terms "war crime" and "genocide" have disappeared from the Law on the Court.

In a letter to the parliamentarians, Head of Mission Brian Aggeler writes:

"Given the significant importance of the Court in fulfilling BiH's constitutional obligations in the area of preserving internationally recognized human rights and freedoms, including the right to a fair trial, the Mission has carefully reviewed the Draft Law through the prism of its comprehensive monitoring program of court proceedings, which includes cases within the Court's jurisdiction. Recognizing that the provisions governing the criminal jurisdiction of the Court are largely aligned with the Venice Commission's 2023 recommendations and the Mission's views, the Mission nevertheless expresses concern that the provisions of Article 16, paragraph (3) of the Draft Law will significantly narrow the Court's substantive jurisdiction by abolishing its competence for:

- taking a final and legally binding stance related to the application of the laws of Bosnia and Herzegovina and international treaties at the request of any entity court or any court of Brčko District of Bosnia and Herzegovina tasked with applying the laws of Bosnia and Herzegovina; and

- issuing practical instructions for the application of criminal substantive law of Bosnia and Herzegovina within the Court's jurisdiction concerning the criminal offenses of genocide, crimes against humanity, war crimes, and violations of the laws or customs of war, as well as individual criminal responsibility related to these offenses, ex officio or at the request of any entity court or the Court of Brčko District of Bosnia and Herzegovina.

The Mission points out that the abolition of the Court's jurisdiction to take a legally binding stance on the application of domestic and international legal norms could have a significant impact on the coherence of judicial practice and legal certainty in an already fragmented judicial system.

Furthermore, removing the possibility of issuing practical instructions on the application of legal norms in cases of genocide, war crimes, and crimes against humanity could create additional obstacles in prosecuting war crimes cases in BiH and hinder the achievement of reconciliation and transitional justice for the most vulnerable members of society – victims of war crimes. This would also contradict one of the basic strategic goals of the Revised State Strategy for War Crimes Cases, which is to ensure the continuous harmonization of judicial practice in war crimes cases, in the interest of legal certainty and equality before the law, and would negatively affect the results of the transfer of over 1000 war crimes cases from the state level to the entity and Brčko District of BiH level.

Without these two jurisdictions, the Court of BiH would be deprived of an indispensable element of its mandate, as it would be prevented from establishing reliable legal standards for other judicial institutions when conducting proceedings against perpetrators of serious criminal offenses within its original jurisdiction, prohibited by binding international agreements.

The inclusion of these jurisdictions is necessary to eliminate inconsistent interpretation and application of regulations, and it is also a necessary prerequisite for creating harmonized domestic judicial practice. For this reason, these jurisdictions must be included in the new Law. Therefore, the current provisions of Article 7, paragraph (3), points (a) and (b) of the current Law on the Court of BiH should remain in force, and the omitted provisions should be returned in their current form to the Draft Law.

Due to procedural limitations that do not allow for amendments to the Draft Law under urgent procedure and the importance of the issues addressed by the Draft Law, the Mission invites you to utilize opportunities such as the regular legislative procedure to rectify the aforementioned shortcomings observed in the definition of criminal jurisdiction.

The Mission also invites you to ensure that the terminology used in the Draft Law is fully aligned with the current criminal regulations. This will enable the avoidance of potential problems in the interpretation and application of the Law. The Mission stands at your disposal for further assistance in this area," the letter, which Patria had access to, states.

We remind you that neither the proposed law on the Court of BiH by Marina Pendeš nor Predrag Kojović includes war crimes and genocide. The public is not aware of the draft law on the Court of BiH prepared by the Ministry of Justice of BiH, but judging by the fact that Pendeš submitted her proposal, it is evident that she had the law proposed by Davor Bunoza.