Crimen (Beograd) (Jan 2021)
Principle of legality and crime against humanity proceedings in Bosnia and Herzegovina
Abstract
The paper deals with the principle of legality from the perspective of crime against humanity proceedings in Bosnia and Herzegovina (BiH). During the armed conflict in BiH many war crimes were committed, among all others, a lot of crimes against humanity. In the time when the crimes were committed, a crime against humanity was not prescribed by the in effect criminal code. Despite that fact, criminal courts in BiH convicted numerous offenders for crimes against humanity on the basis of its prescription in international law. That led the author to the question: what was the path of crime against humanity proceedings in BiH? In the first part of the paper, the author gives an overview on the matter of jurisdiction for crime against humanity in BiH and position of principle of legality in the BiH legal system. That part also contains the insight into the main characteristics of the principle of legality's understanding in different legal traditions, but also the insight into this principle understanding in the international (criminal) law. In the second part, the author analyses Court of BiH's judgments in order to find out what was the source of law used by this court for its crime against humanity convictions. Thereafter, the author analyses Constitutional Court of BiH's decisions related to the alleged breach of BH Constitution and ECHR in relation to the principle of legality regarding crime against humanity proceedings. At the end, the paper gives the overview of ECtHR case law related to the crime against humanity proceedings in BiH - Šimšić v. BiH and Maktouf and Damjanović v. BiH cases. In the last part, the author, taking into consideration understanding the principle of legality in BiH legal tradition, presents the main conceptual problems that were raised from the crime against humanity proceedings in BiH.
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