iii. Domestic Legislation and Cooperation Obligations

Despite the adoption of several laws in BiH at various levels (Republic, Entities and State level) at different times since the establishment of the ICTY in 1993 with a view to implementing both the Statute as well as the relevant Security Council Resolutions 827 and 955, the “unquestionable obligation” to enact implementing legislation necessary to permit States to execute warrants and requests of the Tribunal²⁵⁰⁷ has arguably been met only partially by the Bosnian authorities.

Interestingly, the ICTY has not taken a strong position on domestic legislation except in those cases where they appear to have violated or put into question the primacy of the Tribunal, for example, in the case of the RS law on cooperation with the ICTY of 2002 and in the case of the (draft) law on the establishment of a Truth and Reconciliation Commission for BiH in 2001, providing for the possibility to grant amnesty to war crimes suspects.²⁵⁰⁸

The “Decree with force of law on extradition at the request of the international tribunal” promulgated by the President of the Republic of Bosnia and Herzegovina in 1995²⁵⁰⁹ expressly allowed extradition to the ICTY on the basis of an indictment or an arrest warrant, irrespective of citizenship considerations (Article 3 and 4 of the Decree) and provided for a judicial review procedure by the (then) Supreme Court of Bosnia and Herzegovina limited to establishing whether the accused is the one in respect of whom the extradition request had been submitted and whether the extradition request pertained to criminal acts specified by the statute of the ICTY (Articles 8 and 18 of the Decree). The Federation of BiH adopted a law in 1996,²⁵¹⁰ and the RS adopted the “Law on cooperation of the Republika Srpska with the International Criminal Court in the Hague”²⁵¹¹ in 2001, after some involvement of the High Representative. Both laws removed the main obstacles against transfer of persons, i.e., the citizenship of the concerned person.²⁵¹²

The BiH State level authorities, after the entry into force of the Dayton Agreement, have neither taken a position regarding the (continuous) application of the Decree nor adopted new legislation and have thus far failed to adopt appropriate legislation regulating that aspect of cooperation,²⁵¹³ even though the BiH Criminal Procedure Code (CPC), as enacted in January 2003, had expressly called for special legislation at the State level for the procedure to hand over suspects or accused persons against whom criminal proceedings are ongoing before international criminal courts.²⁵¹⁴ Article 414, paragraph 2 is thus an argument against the otherwise acceptable suggestion that, in analogy to the Decree of the Republic, which had referred to the then applicable provisions of the CPC of the Republic, the provisions of the BiH CPC should apply mutatis mutandis to cases involving the transfer of persons to the ICTY, especially since also the Criminal Procedure Code of BiH generally prevents the extradition of BiH citizens.²⁵¹⁵ A general law on international legal cooperation should be adopted to address these and other shortcomings in the area of judicial cooperation.