Towards an inter-disciplinary approach to the study of transnational relations

PDF

Download

Open document

Transcript (if available)

Content

TOWARDS AN INTER-DISCIPLINARY APPROACH TO THE STUDY OF
TRANSNATIONAL RELATIONS

ROOZBEH (RUDY) B. BAKER
∗

ABSTRACT

This study analyzes the ability of transnational actors to affect domestic policy changes in the country of Bosnia-
Herzegovina (Bosna i Hercegovina). The specific domestic policy change under study will be the attempted
transformation (beginning in 2003) of Bosnia-Herzegovina’s criminal procedure from a “civil” or inquisitorial
model, based on the post-revolutionary French criminal codes, to a more “common” or accusatorial model, based on
the English tradition of de-centralized justice. The independence of Bosnia-Herzegovina in the early 1990s from the
disintegrating Yugoslavia was marred by civil war, horrific violence, and a myriad of large-scale crimes. The stated
goal of transnational actors in 2003 was to begin a process of legal “reform” in a country wracked by post-war
corruption and negligence in its legal system. Such “reform” was deemed by these transnational actors as vital to the
country’s post-war reconstruction. The exploration of whether this “reform” was ultimately successful can offer
important insights into the factors that may possibly determine the ability of transnational actors to change key
structural dynamics in targeted states. Such insights could reveal answers into the question of when, and under
which conditions, transnational actors are successful in their attempts to forge deep and lasting policy changes.

Key Words: Bosnia-Herzegovina, transnational actors, inquisitorial, accusatorial, legal
recursivity, international criminal law

∗
Ph.D. Candidate (Politics & International Relations), University of Southern California. B.A., University of
California at San Diego; J.D., University of Illinois; LL.M., University of California at Berkeley. E-Mail:
Rudy.Baker@yahoo.com

i

TABLE OF CONTENTS

Part I. Background and Analytic Framework

CHAPTER 1. INTRODUCTION 1
I. Research Design: Transnational Actors and Domestic Policy Change in
the Former Yugoslavia 2
A. Research Question: The Introduction of Accusatorial Legal
Procedure in Bosnia-Herzegovina 2
B. Methodology: Case Study and Comparative Method 3
II. The Inquisitorial / Accusatorial Divide 6
III. Plan of Study and Summary of Findings 8

CHAPTER 2. MODEL AND MEASURES 10
I. The State of Transnational Studies: Past and Present 11
A. The Old Debate: State-Centered versus Society-Centered
Approaches 12
B. Moving Beyond the State-Centered / Society-Centered Debate 13
C. Present State of the Transnational Studies Sub-Field: Missed
Opportunities and Limited Progress 16
II. An Inter-Disciplinary Framework for the Study of Transnational Relations 18
A. Review of the Relevant Inter-Disciplinary Literature 18
1. Socio-Legal Literature on Norm Formation,
Implementation, and Interaction 18
2. The Historical Institutionalist Literature within Political
Science 24
B. Advantages of an Inter-Disciplinary Framework for the Study of
Transnational Relations 27
SUMMARY 30

Part II. Application of the Model to the Case

CHAPTER 3. LEGAL RECURSIVITY AND INTERNATIONAL CRIMINAL
LAW: STAGE 1 32
I. Legal Recursivity in Context: Setting the Stage 34
A. Indeterminacy 35
B. Contradictions 35
C. Diagnostic Struggles 36
D. Actor Mismatch 36
II. International Criminal Law and Recursive Cycles: Operationalizing the
Independent Variable 38
A. Crimes Against Humanity 40
1. Overview 41
2. Crimes Against Humanity and Recursive Cycles 48
B. Genocide 51
ii
1. Overview 51
2. Genocide and Recursive Cycles 53
C. War Crimes 55
1. Overview 56
2. War Crimes and Recursive Cycles 59
SUMMARY 62

CHAPTER 4. INSTITUTIONAL DESIGN IN THE BOSNIAN COURTS:
STAGE 2 64
I. Bosnia-Herzegovina: A Historical Overview 65
A. The Austro-Hungarian Period 65
B. The Two Yugoslavias 66
C. The Disintegration of Yugoslavia 68
D. Bosnia-Herzegovina under the Dayton Agreement 71
1. The Central Government 72
2. The Entities 73
3. The High Representative 74
II. Bosnia-Herzegovina: A Legal Overview 78
A. The Austro-Hungarian Period and the Inquisitorial / Accusatorial
Divide: Historical Antecedents 78
B. The Two Yugoslavias and the Persistence of the Inquisitorial
Model 78
C. Bosnia-Herzegovina under the Dayton Agreement: The 2003
Legal Changes 80
1. Criminal Procedure in Bosnia-Herzegovina pre-2003: An
Inquisitorial Model 82
2. Criminal Procedure in Bosnia-Herzegovina post-2003:
Putting in Place an Accusatorial Model 85
III. Bosnia-Herzegovina: The Structure of the Courts and the Jurisdictional
Foundations for Prosecuting International Crimes 86
A. State-Court, District Courts, and Cantonal Courts: A Fragmented
Judiciary 87
1. The State-Court of Bosnia-Herzegovina 87
2. Local District and Cantonal Courts in the Entities 96
B. The Jurisdictional Foundations for the Prosecution of International
Crimes in Bosnia-Herzegovina 100
1. The 1977 SFRJ Criminal Code 100
2. The 2003 Criminal Code of Bosnia-Herzegovina 102
C. The Prosecution of International Crimes in Bosnia-Herzegovina 104
SUMMARY 107

CHAPTER 5. CRIMINAL PROCEDURE IN THE BOSNIAN COURTS: STAGE 3 108
I. Testing the Bosnian Case: Conceptualizing and Operationalizing the
Dependent Variable 108
A. Level 1: Background Concept 112
B. Level 2: Systematized Concept 120
iii
C. Level 3: Indicators 124
D. Level 4: Scores for Cases 126
II. Testing the Bosnian Case: Legal Recursivity and Institutional Design 128
A. Testing for Legal Recursivity (Stage 1) 130
B. Testing for Institutional Design (Stage 2) 134
SUMMARY 140

Part III. Implications

CHAPTER 6. CONCLUSION 142
I. Theoretical Considerations and Empirical Findings: An Inter-Disciplinary
Approach to the Study of Transnational Relations 146
A. The “Sticky” Mediating Institutional Variable in the State-Court 147
B. The Effect of Legal Recursivity in the District and Cantonal Courts 148
II. Policy Considerations: A Final Word 148

APPENDICES

APPENDIX I: The Development of Crimes Against Humanity as an
International Offense 153

APPENDIX II: The Development of Genocide as an International
Offense 155

APPENDIX III: The Development of War Crimes as an International
Offense 156

APPENDIX IV: A Comparison of International Offenses under Domestic
Bosnian and International Law 159

APPENDIX V: Examples of Witness Testimony Collected and Proofed into
the Dossier under the Inquisitorial Model Practiced in the
former Yugoslavia and (pre-2003) Bosnia-Herzegovina 167

APPENDIX VI: Example of Investigation Report Collected and Proofed into
the Dossier under the Inquisitorial Model Practiced in the
former Yugoslavia and (pre-2003) Bosnia-Herzegovina 172

APPENDIX VII: Example of Written Judgment under the Inquisitorial Model
Practiced in the former Yugoslavia and (pre-2003)
Bosnia-Herzegovina (Dismissal of Charges) 175

APPENDIX VIII: Example of Written Judgment under the Inquisitorial Model
Practiced in the former Yugoslavia and (pre-2003)
Bosnia-Herzegovina (Acquittal) 177

iv
APPENDIX IX: Example of Written Judgment under the Inquisitorial Model
Practiced in the former Yugoslavia and (pre-2003)
Bosnia-Herzegovina (Conviction) 180

APPENDIX X: Example of Indictment Broken Down into Component Parts
(aka “Indictment Flowchart”) under the Accusatorial Model
Practiced in (post-2003) Bosnia-Herzegovina 185

APPENDIX XI: Example of an Outline to a Written Judgment under the
Accusatorial Model Practiced in (post-2003)
Bosnia-Herzegovina 192

APPENDIX XII: Example of a Draft Section of a Written Judgment under
the Accusatorial Model Practiced in (post-2003)
Bosnia-Herzegovina 197

APPENDIX XIII: Completed First Instance State-Court of Bosnia-Herzegovina
Cases (2004-2010) 211

APPENDIX XIV: Completed First Instance District and Cantonal Court Cases,
Bosnia-Herzegovina (2004-2010) 242

BIBLIOGRAPHY 269

TABLE OF CASES 287

TABLE OF TREATIES AND OTHER INTERNATIONAL
INSTRUMENTS 297

TABLE OF LEGISLATION AND OTHER NATIONAL
INSTRUMENTS 300

v
LIST OF FIGURES

1.01: The Inquisitorial / Accusatorial Divide 8

2.01: Legal Recursivity in Action 23

2.02: Independent and Dependent Variables as Identified by Risse in Bringing
Transnational Relations Back In 28

2.03: An Inter-Disciplinary Framework for the Study of Transnational Relations 29

3.01: Measuring the Existence of Norm-Making Episodes through Legal
Recursivity (International Criminal Law) 34

3.02: Legal Recursivity and the Mechanisms that Drive It 37

4.01: The Political Structure of Bosnia-Herzegovina under the Dayton
Agreement 77

4.02: Criminal Procedure in Bosnia-Herzegovina Pre / Post the 2003 Changes 86

4.03: National and International Judges Sitting on the State-Court of
Bosnia-Herzegovina 93

4.04: The International Component of the State-Court of Bosnia-Herzegovina
(Section I) 94

4.05: The Judicial Structure of Bosnia-Herzegovina 99

4.06: International Crimes under Domestic Bosnian Law 104

4.07: The Prosecution of International Crimes in Bosnia-Herzegovina
Pre / Post October 2004 106

5.01: Adcock and Collier on Linking Conceptualization to Operationalization 111

5.02: Kagan’s Typology of Legal Adjudication 114

5.03: Measuring Models of Legal Adjudication through Judgment Structures 125

5.04: Testing the Bosnian Case (Judgments of the State-Court of
Bosnia-Herzegovina by Offense, 2004-2010) 130

5.05: Testing the Bosnian Case (Judgments of the State-Court of
Bosnia-Herzegovina in Total, 2004-2010) 132
vi

5.06: Testing the Bosnian Case (Judgments of the Bosnian District and
Cantonal Courts by Offense, 2004-2010) 135
vii

LIST OF ABBREVIATIONS

Army of BiH ABiH
Bosnia-Herzegovina BiH
Conference on Security and Cooperation in Europe CSCE
Council of Europe COE
European Court of Human Rights ECHR
European Union Military Deployment Force EUFOR Althea
Federal Republic of Yugoslavia SRJ
High Judicial and Prosecutorial Council VSTV
Centre for Human Rights and Democracy HUMSEC
Independent Judicial Commission IJC
Independent State of Croatia NDH
International Committee of the Red Cross ICRC
International Criminal Court ICC
International Criminal Tribunal for the former Yugoslavia ICTY
International Criminal Tribunals for Rwanda ICTR
International Law Commission ILC
International Military Tribunal IMT
Just and Durable Peace by Piece JAD-PbP
North Atlantic Treaty Organization NATO
Office of the High Representative OHR
Office of the Prosecutor OTP
Organization for Security and Cooperation in Europe OSCE
Peace Implementation Council PIC
Rules of the Road RoR
Socialist Federal Republic of Yugoslavia SFRJ
Special Panels for Serious Crimes SPSC
State-Union of Serbia-Montenegro SCG
United Nations UN

1
Chapter
INTRODUCTION
1

Imagine a country emerging from years of civil war and conflict that has killed and
displaced large portions of its population and gutted its institutions. The “international
community,” after a period of inaction, comes together to forge a settlement on the warring
parties and pledge substantial assistance in the country’s reconstruction. Soon the avenues and
boulevards of this country’s capital are crammed full of officials from a spectrum of national,
supranational, quasi-governmental, and non-governmental institutions and agencies all with the
stated purpose of assisting in the host country’s reconstruction. Now imagine a group of men and
women from these agencies all sitting around a table and discussing how best to go about
reconstruction and “reform” of the host country’s legal system. There is argument back and forth
and the debate is heated. Those from the United Kingdom and its former colonies, including the
United States, argue that the legal procedural model in place in the host country is the root of the
problem. Reform for these people means a wholesale reorganization of the legal model in place
into one that more closely resembles that found in their own countries. These claims elicit protest
from those officials in the meeting from continental Europe, who argue that the legal model in
place in the host country, a model that their own countries largely share, is not the problem, and
that “reform” will be best achieved through rebuilding rather than reorganizing the host
country’s legal institutions. The decision these officials ultimately reach will have far-reaching
ramifications, for once these actors agree with one another on a common position, all of their
considerable efforts will be focused on finding ways to attempt to influence the domestic policy
of the host state.

The scenario described above is not a hypothetical one. With the end of the Cold War, a
burgeoning consensus has emerged in the international system, especially in the United States
and Western Europe, that assisting countries emerging out of war / violence / dictatorship is a
key avenue towards maintaining stability in the world. This consensus has given rise to whole
host of national and supranational institutions within the international system with the express
goal of providing resources and expertise to countries emerging out of conflict. These
“transnational actors”
1
have assumed an important position within the international system and
have emerged as key agents in a number of important issue areas.

This study analyzes the ability of transnational actors to affect domestic policy changes in
the country of Bosnia-Herzegovina (Bosna i Hercegovina). The specific domestic policy change
under study will be the attempted transformation (beginning in 2003) of Bosnia-Herzegovina’s
criminal procedure from a “civil” or inquisitorial model, based on the post-revolutionary French
criminal codes, to a more “common” or accusatorial model, based on the English tradition of de-
centralized justice. The independence of Bosnia-Herzegovina in the early 1990s from the
disintegrating Yugoslavia was marred by civil war, horrific violence, and a myriad of large-scale

1
See Joseph S. Nye & Robert O. Keohane, Introduction, in TRANSNATIONAL RELATIONS AND WORLD POLITICS xi
(Robert O. Keohane & Joseph S. Nye eds., 1972) (Where the authors describe transnational actors as forces engaged
in “contacts, coalitions, and interactions across state boundaries.”).

2
crimes. The stated goal of transnational actors in 2003 was to begin a process of legal “reform”
in a country wracked by post-war corruption and negligence in its legal system. Such “reform”
was deemed by these transnational actors as vital to the country’s post-war reconstruction. The
exploration of whether this “reform” was ultimately successful can offer important insights into
the factors that may possibly determine the ability of transnational actors to change key structural
dynamics in targeted states. Such insights could reveal answers into the question of when, and
under which conditions, transnational actors are successful in their attempts to forge deep and
lasting policy changes.

Initial findings indicate that the nature of the norms adopted by transnational actors and
then targeted into domestic states has a possible effect on the ability to impact domestic state
behavior. Those norms subject to competing claims and conflicts as to their meanings and
application are less likely to enable transnational actor influence than those norms which have
gained authoritative status. This being said, initial findings also indicate that these effects are
heavily mediated by institutional factors. The ability of transnational actors to change the
procedural model through which criminal cases in Bosnia-Herzegovina were adjudicated was
heavily dependent on the institutional factors at play in the different courts in operation in the
country. In short then, although the nature of norms matters, the nature of the institutions they
are filtered through matters even more. In Bosnia-Herzegovina, the stability of certain
institutional arrangements restricted the span of outcomes available and was instrumental in
determining the success and / or failure of transnational actors in affecting policy change.

I. Research Design: Transnational Actors and Domestic Policy Change in the Former
Yugoslavia

In late 2003 Bosnia-Herzegovina attempted a wholesale reorganization of the
inquisitorial legal model that had been in place since its time as a province of the Ottoman
Turkish Empire. More detail is provided on this process in Chapter 4,
2
but suffice to say that old
procedures and institutions were eliminated and replaced with new ones that sought to transform
the model in place in the country into an accusatorial one. Though initiated with the agreement
of local Bosnian political forces, these changes were championed and spearheaded by outside
transnational actors. The research question at the heart of this study is the ability of transnational
actors to affect domestic policy change in targeted states. The tools that this study will utilize in
order to investigate this question will be the case study employed in conjunction with the
comparative method.

A. Research Question: The Introduction of Accusatorial Legal Procedure in
Bosnia-Herzegovina

With the growth of ad-hoc and permanent international criminal tribunals, and
accompanying changes in customary international law,
3
the body of law governing the

2
See Chapter 4 § II(C) for a discussion of the changes to the Bosnian legal system initiated in 2003.

3
See Chapter 3 § II for a discussion and explanation of the two primary forms of international law --- law deriving from
custom (customary international law) and law deriving from international treaties or conventions (conventional international
law).
3
commission of criminal offenses in conflicts has become increasingly institutionalized into what
is today known as international criminal law.
4
The growth of these international criminal
tribunals has not only sparked the creation of a new body of law, but also of a new epistemic
5

transnational community of international legal professionals, diplomats, and international
governmental agency officials.

This study analyzes the ability of this community of transnational actors to affect
domestic policy changes in the country of Bosnia-Herzegovina. The specific domestic policy
change under study here is the attempted transformation (beginning in 2003)
6
of Bosnia-
Herzegovina’s criminal procedure from a “civil” or inquisitorial model, based on the post-
revolutionary French criminal codes, to a more “common” or accusatorial model, based on the
English tradition of de-centralized justice. As discussed in greater detail in Chapter 4, in Bosnia-
Herzegovina the prosecution of the crimes committed during the violent conflict that engulfed
the country in the 1990s has been one of the key issues in its reconstruction.
7
This conflict has
not only sparked the creation of one of the key ad-hoc international criminal tribunals mentioned
above, but, as highlighted in Chapters 4,
8
has also given rise to a new transnational community
of international legal professionals, diplomats, and international governmental agency officials
that have spearheaded Bosnia-Herzegovina’s post-war reconstruction. Can these transnational
actors change the procedure through which such crimes are adjudicated? Are there any particular
factors that assist transnational actors in their efforts to influence domestic state behavior? Can
these various interactions between international and domestic level actors be modelled? The
answers to these questions may reveal useful insights into when, and under which conditions,
transnational actors are successful in their attempts to forge deep and lasting policy changes in
targeted states.

B. Methodology: Case Study and Comparative Method

The case study method (i.e. an intense study of single / small set of cases),
9
serves as a
useful methodological vehicle for studies looking to test and refine theories,
10
as this study

4
See Roozbeh (Rudy) B. Baker, Customary International Law in the 21st Century: Old Challenges and New
Debates, 21 EUR. J. INT’L L. 173 (2010) (Where the author analyzes in detail this process.).

5
See Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 INT. ORGAN. 1
(1992) (Where the author describes epistemic communities as “a network of professionals with recognized expertise
and competence in a particular domain and an authoritative claim to policy-relevant knowledge within that domain
or issue-area.” The key is that this community has a “shared set” of normative beliefs which can provide a rationale
for “social action.”).

6
See Chapter 4 § II(C) for a detailed discussion of the changes to the Bosnian legal system initiated in 2003.

7
See Chapter 4 § I(C) for an in-depth discussion of the origins of the conflict that engulfed Bosnia-Herzegovina in the early
1990s.

8
See Chapter 4 § III.

9
One critique of case studies (especially those dealing with multiple cases) has been that the non-random purposeful
case selection utilized in such studies opens them up to charges of selection bias. For a defense of purposeful case
selection against such charges, see David Collier, James Mahoney, & Jason Seawright, Claiming Too Much:
4
proposes to do. Furthermore, the case study method is ideal for this class of analysis, as the
detailed descriptive analysis it demands can serve to provide for the observation of potential
causal interactions between identified variables.
11
The comparative method (i.e. the comparison
and subsequent analysis of a set of cases), along the same lines, also can serve to investigate the
existence of relationships between various variables under study.
12
In this way, the comparative
method is an ideal methodological companion to the case study method.
13
Both the case study
and comparative methods, however, it should be noted, are usually employed in the social
sciences in research designs that are observational or quasi-experimental. Any quasi-
experimental design, by its very definition, implies that the researcher utilizing it cannot
specifically isolate the variables under study nor randomly manage the assignment of causes to
units.
14
Without the ability to isolate the variables under study, it becomes very difficult to
determine whether uncategorized variables may be driving the seemingly observed relationship
(i.e. omitted variable bias).
15
Without randomized assignment of “causes to units,” quasi-
experiments run the risk of endogeneity --- the effect seemingly caused by the independent
variable to the dependent variable is actually a consequence of the dependent variable itself --- in
other words, the direction of influence from independent to dependent variable occurs in
reverse.
16
It is in this vein, then, that certain scholars have questioned the suitability of the
comparative method in the social sciences, as it was designed for experimental research designs
which rely on unique and deterministic relationships (between variables), that are free of
measurement error.
17

Warnings About Selection Bias, in RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS 92-98
(Henry E. Brady & David Collier eds., 2004) (Where the authors discuss how within-case analysis is not subject to
selection bias because, unlike quantitative or statistical methods, it does not involve intuitive regression and instead
looks to varied types of evidence about causation in order to explain the outcome under study.).

10
See Arent Lijphart, Comparative Politics and the Comparative Method, 65 AM. POL. SCI. REV. 682, 691-692
(1971).

11
See John Gerring, What is a Case Study and What is it Good For?, 98 AM. POL. SCI. REV. 341, 348 (2004).

12
Lijphart, supra note 10, at 683.

13
Id. at 691.

14
DONALD T. CAMPBELL & JULIAN C. STANLEY, EXPERIMENTAL AND QUASI-EXPERIMENTAL DESIGNS FOR
RESEARCH 2-6 (Rand McNally 1966). See also Adam Przeworski, Is the Science of Comparative Politics Possible?,
in OXFORD HANDBOOK OF COMPARATIVE POLITICS 152-153 (Carlos Boix & Susan C. Stokes eds., 2007).

15
Przeworski, supra note 14, at 153-154. To work against omitted variable bias, strong theory coupled with a
superior understanding of the cases under study can help.

16
Id. at 152-154; GARY KING, ROBERT O. KEOHANE, & SIDNEY VERBA, DESIGNING SOCIAL INQUIRY: SCIENTIFIC
INFERENCE IN QUALITATIVE RESEARCH 185-186 (Princeton University Press 1994).

17
See Stanley Lieberson, Small N’s and Big Conclusions: An Examination of the Reasoning in Comparative Studies
Based on a Small Number of Cases, 70 SOC. FORCES 307 (1991); Jasjeet S. Sekhon, Quality Meets Quantity: Case
Studies, Conditional Probability, and Counterfactuals, 2 PERSP. ON POL. 281 (2004); Jasjeet S. Sekhon, The
Neyman-Rubin Model of Causal Inference and Estimation via Matching Methods, in OXFORD HANDBOOK OF
POLITICAL METHODOLOGY (Janet Box Steffensmeier, Henry E. Brady, & Jasjeet S. Sekhon eds., 2008).

5

The numerous problems of measurement associated with quasi-experimental designs can
and do present valid potential methodological stumbling blocks. This critique of quasi-
experimental designs can be addressed, however, through the understanding that observational
studies utilizing a quasi-experimental design will always suffer from imprecise models and
partial data,
18
and indeed by their very nature, they will suffer from several classic threats to their
internal validity (i.e. threats to the correlation in values between the independent variable and
dependent variable) which Donald T. Campbell has catalogued to include the following: (1)
history (specific events occurring between the application of the manipulation to the variables
under study, and any observed change possibly resulting from said manipulation); (2) maturation
(changes in the variables commiserate with the passage of time); (3) testing (changes in the
variables stemming from the preparation to test them, rather than from the application of any
manipulation); (4) instrumentation (a change in the measurement used to rate the phenomena
under study); (5) instability (unstable measurements); and (6) regression to the mean.
19

The simple utilization of a time-series (also referred to as longitudinal analysis), with the
added benefit of a non-equivalent control group,
20
can greatly improve the inferential leverage of
any quasi-experimental design by helping to address many of Campbell’s six classic threats to
internal validity. Longitudinal analysis, with its focus on periodic measurement (i.e. rather than a
one-shot before / after measurement process), can help reveal the potential effects of maturation,
testing, instrumentation, and regression through revealing possible large-scale trans-treatment
shifts (or lack thereof).
21
The addition of a non-equivalent control can help address issues arising
from history and, in this way, can provide a great deal of inferential leverage when combined
with longitudinal analysis, especially if the experimental and non-equivalent control groups share
many similar characteristics.
22

18
See David Collier, Henry E. Brady, & Jason Seawright, Sources of Leverage in Causal Inference: Toward an
Alternative View of Methodology, in RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS 237, 242
(Henry E. Brady & David Collier eds., 2004).

19
CAMPBELL & STANLEY, supra note 14, at 2-6; Donald T. Campbell & H. Laurence Ross, The Connecticut
Crackdown on Speeding: Time Series Data in Quasi-Experimental Analysis, in THE QUANTITATIVE ANALYSIS OF
SOCIAL PROBLEMS 113-115 (Edward R. Tufte ed., 1970).

20
An equivalent control being, of course, impossible in a quasi-experimental design.

21
CAMPBELL & STANLEY, supra note 14, at 37-43; Campbell & Ross, supra note 19, at 115-117. Evan S. Lieberman
makes a similar observation in regards to the importance of time-series / longitudinal analysis to address threats to
internal validity and improve inferential leverage in specific regard to empirical work utilizing a historical
institutionalist approach, see Evan S. Lieberman, Causal Inference in Historical Institutional Analysis: A
Specification of Periodization Strategies, 34 COMP. POL. STUD. 1011, 1015-1016 (2001).

22
CAMPBELL & STANLEY, supra note 14, at 47-50; Campbell & Ross, supra note 19, at 117-118. Assistance in
helping to reveal the possible effects of history aside, the use of a non-equivalent control is also important in case
studies, as the control functions to create variance in the independent variable which can assist in addressing any
possible anomalies that can arise from having only small number of cases or observations from which to draw causal
inference. See James Mahoney & Gary Goertz, The Possibility Principle: Choosing Negative Cases in Comparative
Research, 98 AM. POL. SCI. REV. 653 (2004); Ronald Rogowski, How Inference in the Social (but Not the Physical)
Sciences Neglects Theoretical Anomaly, in RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS 70-
82 (Henry E. Brady & David Collier eds., 2004).

6

All of the issues of measurement associated with quasi-experimental designs just
catalogued can always be mitigated (though never completely eliminated) through a well-
executed operationalization of the variables under study, good research design, strong theory,
and a superior understanding of the cases under study.
23
Their clear weaknesses aside,
observational studies can be particularly well placed to give the researcher leverage in making
“causal process observations” or CPOs.
24
These types of observations, which consist of “data
that provide information about context or mechanism,” can provide exceptional insight to the
causal chains driving the relationships between the independent and dependent variables under
study.
25
As will be seen later in Chapter 5,
26
CPOs will be particularly important in this study in
providing essential insight into the causal chains influencing the various factors that affect the
ability of transnational actors to affect domestic state behavior in Bosnia-Herzegovina.

II. The Inquisitorial / Accusatorial Divide

While the ability of transnational actors to affect domestic policy changes in the country
of Bosnia-Herzegovina is the research question at the center of this study, some discussion and
background on the actual policy changes being attempted is useful. When speaking of forms of
legal adjudication in the Western legal tradition, two models stand out as the dominant templates
--- the inquisitorial model arising out of revolutionary France, and the accusatorial model
emerging from feudal England. Developing out of different historical circumstances and placing
value on different objectives, these two models of how “law” or norms are to be applied have
come to increasingly define the way justice is administered around the world.

Prior to the French Revolution, the sources of law in France had been a mix of feudal
custom, Roman law, and old royal ordinances.
27
With the promulgation of the Criminal Code of
1810 (Code pénal) and Criminal Procedure Code of 1803 (Code d’instruction criminelle), the
French Republic set out to bring order and modernity to this patchwork by overlapping and
sometimes contradictory web of rules. The new French Codes were groundbreaking in the way
they organized the procedure of criminal prosecution and sanction.
28
The Codes marked one of
the watersheds of the French revolutionary period as they signaled a movement away from a
retributive pre-revolutionary system that had provided wide latitude to judges (and where the
majority of offenses were not codified but rather customary in nature) and had championed harsh
punishment, into a more hierarchical system where judicial discretion was no longer all-

23
Collier, Brady, & Seawright, supra note 18, at 238.

24
Id. at 252.

25
Id. at 252-255.

26
See Chapter 5 § II.

27
A. ESMEIN, A HISTORY OF CONTINENTAL CRIMINAL PROCEDURE WITH SPECIAL REFERENCE TO FRANCE 609 (John
Simpson trans., Little, Brown, & Company 1913).

28
It should be noted that the French codification movement spread beyond just the criminal law --- indeed, the first
(and arguably most famous) code was the Civil Code (Code civil) promulgated by Napoleon in in 1804.

7
encompassing and offenses (and penalties) were codified in a regulated manner.
29
The Codes
brought order into the French legal system and established a very unique model of justice, the
inquisitorial system, which would come to be characterized by hierarchical bureaucratic
decision-making, broad evidentiary rules, and reliance on written records.
30

One of the lone holdouts from the inquisitorial system that emerged out of the post-
revolutionary French codes and soon spread throughout Continental Europe was England. The
English legal system had long been unique in that English judges had, since the promulgation of
the Magna Carta in 1215,
31
been subject to an important check on their power (and then by
extension the power of the monarch under whom they served) in the form of the jury.
32
The jury
system itself pre-dated the Magna Carta in England, emerging in the middle of the 12th
century,
33
but it was the Magna Carta which guaranteed their use as a check on royal power and
emergence as an important institution of the English legal system.
34
As the jury system became
institutionalized in England, it ensured that the procedural role of English judges would develop
very differently from that of their counterparts abroad --- indeed, as time passed, the role of the
English judge was limited by the presence of the jury to “maintaining courtroom order, framing
the questions that the jur[y] must answer, and ensuring compliance with the ground rules.”
35
The
peculiar development of the English legal system would give rise to a model of justice known as
the accusatorial system, which would come to be characterized by more party-influenced
discretionary decision-making, strict evidentiary rules, and a reliance on oral arguments.
36

When scholars today refer to “Continental” or “civil law” systems and their “English” or
“common law” counterparts it is, in large part, the inquisitorial / accusatorial divide that they are

29
See ESMEIN, supra note 27, at 462-481; CATHERINE ELLIOTT, FRENCH CRIMINAL LAW 4-5 (Willan Publishing
2001).

30
See e.g. ARTHUR T. VON MEHREN, THE CIVIL LAW SYSTEM: CASES AND MATERIALS FOR THE COMPARATIVE
STUDY OF LAW 3-80 (Prentice Hall 1957); FRIEDERICH HAYEK, THE CONSTITUTION OF LIBERTY 194-196 (University
of Chicago Press 1960); JOHN HENRY MERRYMAN, THE CIVIL LAW TRADITION: AN INTRODUCTION TO THE LEGAL
SYSTEMS OF WESTERN EUROPE AND LATIN AMERICA (Stanford University Press 1969).

31
The Magna Carta (Latin for “Great Charter”) was a document limiting the powers of the English monarch, John I,
in relation to his subjects. John I was forced to sign the charter by his rebellious feudal barons who had objected to
the high taxes and unsuccessful wars that had marked his reign. One of the foundations of the uncodified English
Constitution, Law Lord Alfred Denning characterized the Magna Carta as “the greatest constitutional document of
all times” and “the foundation of the freedom of the individual against the arbitrary authority of the despot.”

32
Magna Carta ch. 39 (1215).

33
FREDERICK POLLOCK & FREDERIC W. MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD
I, VOL. I 147-151 (Cambridge University Press 1898).

34
Edward L. Glaeser & Andrei Shleifer, Legal Origins, 117 Q. J. ECON. 1193, 1194 (2002).

35
JOHN P. DAWSON, A HISTORY OF LAY JUDGES 136 (Harvard University Press 1960).

36
See e.g. FREDERICK POLLOCK, THE GENIUS OF THE COMMON LAW (Columbia University Press 1911); HOWARD
SCHWEBER, THE CREATION OF AMERICAN COMMON LAW 16-23 (Cambridge University Press 2004); ALAN C.
HUTCHINSON, EVOLUTION AND THE COMMON LAW 2-15 (Cambridge University Press 2005).

8
describing --- especially when in reference to criminal justice. These divisions between the two
models will be analyzed in detail in Chapter 4,
37
but for the present figure 1.01 below provides a
simplified representation of the key defining characteristics of the two systems:

Figure 1.01: The Inquisitorial / Accusatorial Divide

LEGAL SYSTEM: INQUISITORIAL ACCUSATORIAL
DEFINING CHARACTERISTICS: • Hierarchical bureaucratic
decision-making
• Broad evidentiary rules
• Reliance on written records
• Party-influenced discretionary
decision-making
• Strict evidentiary rules
• Reliance on oral arguments

III. Plan of Study and Summary of Findings

The different Bosnian legal institutions that will be the focus of this study are each
unique in their structure and composition and thus well suited to test either the success or failure
of transnational actors to affect domestic policy change. As will be discussed in greater detail in
Chapter 4,
38
jurisdiction in Bosnia-Herzegovina over criminal cases originating from offenses
committed during the 1990s conflict are handled by three very different sets of judicial
institutions. The State-Court of Bosnia-Herzegovina (Sud Bosne i Hercegovine), is the only real
national institution in a highly decentralized country divided into two “entities” or constituent
units --- the Republic of Srpska (Republika Srpska) and Federation of Bosnia-Herzegovina
(Federacija Bosne i Hercegovine) --- and as such is unique in its institutional design as both a
“hybrid” judicial institution employing domestic and international staff, and as an institution
under central governmental control in a country where most governance is conducted on the
entity level. Local Bosnian district courts (okružni sudovi) in the Republic of Srpska and
cantonal courts (kantonalni sudovi) in the Federation share neither the hybrid structure of the
State-Court nor are under direct central Bosnian government control --- being run instead on an
entity level. All three institutions are empowered to hear cases originating from criminal offenses
committed in the territory of the former Yugoslavia during the conflict of the early 1990s and all
three courts apply (in theory) the same body of law.

Chapter 2 will present an interdisciplinary framework for the study of transnational
relations that looks to build upon earlier work across the multiple disciplines of international
relations, socio-legal studies, and political science in its quest to study how transnational actors
can affect domestic state behavior. This framework builds on the contributions of the existing
literature on “transnational studies” within international relations but then turns to literature in
socio-legal studies and political science in order to rectify problems of under-specification.
Socio-legal scholarship has described the nature of norm formation and interaction as iterative
and marked by possible recursive cycles driving the transformation of conflicting norms into
settled ones. Such insight can offer distinct advantages to the study of how norms (whether
primarily international or national in origin / nature) can be adopted by transnational actors and
then targeted into domestic states and whether the nature of these norms --- i.e. whether they are

37
See Chapter 4 § I.

38
See Chapter 4 § III.

9
subject to competing claims and conflicts as to their meanings and application, or whether they
have gained the status of accepted, and therefore authoritative, norms --- can affect the ability of
transnational actors to impact domestic state behavior. Similarly, the emphasis within certain
strands of political science on the ability of institutions to mediate and shape interactions, and the
importance of time and historical trajectory in institutional endurance and design, offers a
powerful way forward towards studying the interactions that are at the heart of transnational
studies.

Chapter 3 documents the growth of international criminal law and analyzes the levels of
legal recursivity found in the three main doctrinal areas of this fairly new body of law --- crimes
against humanity, genocide, and war crimes. Chapter 4 discusses the emergence of transnational
actors in Bosnia-Herzegovina and their attempts to transform the country’s criminal procedure
from a “civil” or inquisitorial model, based on the post-revolutionary French criminal codes, to a
more “common” or accusatorial model, based on the English tradition of de-centralized justice.
Chapter 4 concludes with a discussion of how criminal cases in Bosnia-Herzegovina are
adjudicated by three very different judicial institutions, each different in institutional structure
but, in theory, charged with applying the same accusatorial model of criminal procedure.

Chapter 5 tests the Bosnian case by analyzing the structure of the judicial opinions of the
Bosnian State, district, and cantonal courts in order to test for whether legal recursivity and / or
institutional design have had any bearing on whether communities of transnational actors have
been able to successfully change the procedure through which criminal cases in Bosnia-
Herzegovina are adjudicated. Chapter 6 explains the findings presented in Chapter 5 and offers
concluding thoughts on the future direction of the research agenda should in the wake of the
findings presented.

The findings presented indicate that legal recursivity has a possible effect on the ability of
transnational actors to impact domestic state behavior. Those norms still subject to recursive
cycles of norm-making (i.e. competing claims and conflicts as to their meanings and application)
are less likely to enable transnational actor influence than those norms which are no longer
subject to such cycles and have instead gained authoritative status. This being said, the data also
indicates that these effects are heavily mediated by institutional design. The ability of
transnational actors to change the procedural model through which criminal cases in Bosnia-
Herzegovina were adjudicated was heavily dependent on the different institutional factors at play
in the State, district, and cantonal courts. In short then, although the nature of norms matters, the
nature of the institutions they are filtered through matters even more. In Bosnia-Herzegovina, the
stability of certain institutional arrangements restricted the span of outcomes available and was
key in determining the success and / or failure of transnational actors in affecting policy change.

10
Chapter
MODEL AND MEASURES
2

The past thirty years have seen a marked increase in the proliferation of transnational
actors in the international system. The rise of these actors has sparked a continuing debate within
the field of international relations on how they influence state action. This emergent literature on
“transnational studies” within international relations has mainly pitted advocates of an approach
that views states as the dominant force in world politics versus those who see the rise of
transnational actors as empirical proof that the primacy of states as actors in the international
system is being replaced. The state-centered approach sees transnational actors merely as
intervening factors that can assist states in cooperating with one another, implementing policy
goals, or alternatively constraining behavior and action. The society-centered approach, on the
other hand, views the proliferation of transnational actors as evidence that, in a wide host of
international policy realms (from environmental regulation to international financial markets),
the primacy of the state in decision-making is being eroded.

New literature in the mid-1990s tried to move transnational studies beyond the state-
centered / society-centered debate of the past. This new literature premised that, if viewed
objectively, the debate between advocates of the state-centered approach and those of the
society-centered one was very much based on a mistaken premise. What both the state-centered
and society-centered approaches failed to grasp was that, because both looked to how
transnational actors could affect domestic state behavior, they really in the end shared the same
research question (it was only their approach to the question that differed). These original
insights identified a promising new framework to explore the effect of transnational actors on
domestic state behavior. This framework highlighted the potential significance of transnational
actors in bridging the gulf between international and domestic politics, and identified two general
factors that could shape their influence: international institutionalization and domestic state
institutional structure. International institutionalization was identified as important because such
processes could facilitate the access of transnational actors into national level structures.
Domestic state institutional structure mattered because these structures could control both the
ability of transnational actors to access the institutions of the state being targeted and, once in,
form “winning policy coalitions” with relevant national level actors. Clearly this new literature
that emerged in the mid-1990s has taken a welcome step in the right direction by moving away
from broad discussions of whether the state or international society is the proper unit of analysis
and in identifying factors that should shape transnational actor influence --- but it remains
underspecified. The result is a thin account of how transnational actors matter and a series of
measurement problems due to the underlying concepts being much too general.

The running theme of current scholarship has been a duplication of earlier research, and
while many scholars have favorably cited the initial call to bridge the state-centered / society-
centered debate of the past, only a few have taken up the task. Additionally, the minority of
scholarship that has attempted to move beyond state-centered / society-centered debate and look
to study how transnational actors can possibly affect domestic state behavior, has not
meaningfully engaged literature in other disciplines, specifically socio-legal studies and political
11
science, that have also looked to the same issue. Such a limited view is problematic, as
scholarship in other fields that looks to how international and national systems interact has much
to offer the sub-field of transnational studies. Indeed, scholarship in socio-legal studies and
political science, taken together and combined with the current transnational studies literature in
an inter-disciplinary framework, could go a long way towards improving both the understanding
of the key factors influencing the ability of transnational actors to affect domestic state behavior,
as well as the ways in which these effects can be measured.

Socio-legal scholars studying the interactions between norms on the international and
national levels, and political scientists studying the specific effects of institutions, have much to
contribute to understanding how transnational actors operate and affect domestic state behavior.
Socio-legal scholarship, with its emphasis on the mechanisms that drive the interactions between
the international and national systems, offers an analytically sound and methodologically
systematic way to study the relationships between these two levels. This scholarship has
described the nature of norm formation and interaction as iterative and marked by possible
recursive cycles driving the transformation of conflicting norms into settled ones. Such insight
can offer distinct advantages to the study of how norms (whether primarily international or
national in origin / nature) can be adopted by transnational actors and then targeted into domestic
states and whether the nature of these norms --- i.e. whether they are subject to competing claims
and conflicts as to their meanings and application, or whether they have gained the status of
accepted, and therefore authoritative, norms --- can affect the ability of transnational actors to
impact domestic state behavior. Similarly, the emphasis within certain strands of political science
on the ability of institutions to mediate and shape outcomes, and the importance of time and
historical trajectory in institutional endurance and design, offers a powerful way forward towards
studying the interactions that are at the heart of transnational studies. This scholarship offers a
clear path towards the study of how specific cases of institutional design can possibly influence
the ability of transnational actors to affect domestic state behavior, as well as the development of
these processes over time.

This chapter introduces a new theoretical framework for testing the ability of
transnational actors to influence domestic state behavior. This framework builds on the
contributions of the existing literature on “transnational studies” within international relations
but then turns to literature in socio-legal studies and political science in order to rectify problems
of under-specification. This new inter-disciplinary framework: (1) more explicitly identifies the
sequence of the variables that affect the ability of transnational actors to influence domestic state
politics; and (2) replaces the vague concepts of “international institutionalization” and “domestic
state structure” with more detailed and concrete concepts centering on the recursive nature of
norm formation and the importance of institutional structure in influencing outcomes. With this
framework in place, the process of begun in Chapter 1 will be complete, and the stage will be set
to turn the discussion to applying and testing this new framework.

I. The State of Transnational Studies: Past and Present

The past several decades have seen the state of transnational studies within international
relations undergo several shifts, both in its main theoretical underpinnings and the focus of the
research questions scholars within the sub-field have sought to answer. The period immediately
12
following the Second World War saw the sub-field marked by the debate between state-centered
and society-centered approaches. This debate would gradually give way to a movement which
looked to redefine the direction of transnational studies away from the state-centered versus
society-centered debate of the past and instead look to synthesize the two approaches into a
realistic understanding of the international system and the place of transnational relations within
it. Although some limited progress in this regard has been achieved, there is still much work to
be done.

A. The Old Debate: State-Centered versus Society-Centered Approaches

The end of the Second World War and the subsequent birth of the United Nations (UN)
gave rise to a new period within the international system which saw the proliferation and
growing influence of transnational actors.
1
Given this new reality, social scientists and especially
international relations scholars began to pay more attention to the role of these transnational
actors on the actions and behaviors of states within the international system. This state-centered
approach would dominate the literature for over two decades until a new group of scholars began
to argue for an direction in the study of transnational actors which would look beyond how
transnational actors affected state behavior within the international system, and instead look to
also study how transnational actors were actually creating a new institutionalized environment
where the primacy of the state in the decision-making process (within the international system)
was being eroded.

The state-centered approach to the study of transnational actors within the international
system took off with the close of the Second World War and the subsequent proliferation of
international organizations within the international system. With the growth of these new
international institutions, many scholars began to study whether such organizations could affect
domestic state behavior, and if so, how. These early studies focused their efforts on trying to
unlock how large-scale international organizations could possibly affect the behavior of their
member states. Analysis was conducted on such widespread issue areas as the ability of states to
shape or sabotage the creation of multilateral treaty regimes;
2
the effect of international
organization membership on both the foreign policy of its member states,
3
and on fostering the
organic emergence of collective security arrangements between various member states;
4
and the

1
The most widely accepted definition of what constitutes a transnational actor is the one first offered by Robert O.
Keohane and Joseph S. Nye in 1971. Keohane and Nye define transnational actors as forces engaged in “contacts,
coalitions, and interactions across state boundaries.” See Joseph S. Nye & Robert O. Keohane, Introduction, in
TRANSNATIONAL RELATIONS AND WORLD POLITICS xi (Robert O. Keohane & Joseph S. Nye eds., 1972).

2
See Virginia Little, Control of International Air Transport, 3 INT’L ORG. 274 (1949).

3
See Benjamin V. Cohen, The Impact of the United Nations on United States Foreign Policy, 5 INT’L ORG. 29
(1951); Wytze Gorter, GATT After Six Years: An Appraisal, 8 INT’L ORG. 1 (1954); E.B. Matecki, Establishment of
the International Finance Corporation: A Case Study, 10 INT’L ORG. 261 (1956).

4
See Howard C. Johnson & Gerhart Niemeyer, Collective Security: The Validity of an Ideal, 8 INT’L ORG. 19
(1954).

13
ability of international organizations to target and lobby national legislatures.
5
The findings of
these various scholars pointed to the sometimes unique abilities of international organizations to
affect behavioral change on the domestic level.
6

The society-centered approach to the study of transnational actors within the international
system emerged as a reaction to the state-centered approach that had dominated the scholarly
field since the close of the Second World War. Looking beyond the domestic nation-state, a new
set of scholars began to study how international institutions were exerting their own autonomous
influence over the international system. These scholars focused their efforts on how the emerging
international system of inter-linked organizations and multilateral treaty regimes was exerting
direct influence on the international system without any mediation or filtration through domestic
states.
7
The new “units of action” in these interactions were thus no longer domestic states but
instead transnational actors who could either link together different national interest groups
within a related issue and assist them in coordinating their actions,
8
or alternately create an
environment where domestic state governments were unable to directly pursue their interests in a
given issue area alone and had to instead seek the assistance of the same transnational actors and
networks.
9

B. Moving Beyond the State-Centered / Society-Centered Debate

5
See A. Glenn Mower, The Official Pressure Group of the Council of Europe’s Consultative Assembly, 18 INT’L
ORG. 292 (1964); ROBERT W. COX & HAROLD K. JACOBSON (EDS.), ANATOMY OF INFLUENCE: DECISIONMAKING IN
INTERNATIONAL ORGANIZATION (Yale University Press 1973).

6
See e.g. Cohen, supra note 3 at 275-280 (Where the author discusses how the United Nations, through simply
existing as a forum for the potential resolution of disputes, actually exerted influence on the foreign policy decision-
making of its member states.); Gorter, supra note 3, at 7-9 (Where the author found that the specific institutional
structures of international institutions can directly affect their ability to influence the actions of their members.);
Matecki, supra note 3, at 266-273 (Where the author found that the support for the creation of the International
Finance Corporation in the mid-1950s by the United States was a direct result of lobbying efforts by members of
other international institutions.); Mower, supra note 5, at 292-294 (Where the author found that that international
organizations can have the very clear capacity to specifically lobby national legislatures when the need arises.).

7
See ROBERT O. KEOHANE & JOSEPH S. NYE (EDS.), TRANSNATIONAL RELATIONS AND WORLD POLITICS (Harvard
University Press 1972); RICHARD MANSBACH, YALE FERGUSON, & DONALD LAMPERT, THE WEB OF WORLD
POLITICS: NONSTATE ACTORS IN THE GLOBAL SYSTEM (Prentice-Hall 1976); HAROLD JACOBSON, NETWORKS OF
INTERDEPENDENCE: INTERNATIONAL ORGANIZATIONS AND THE GLOBAL POLITICAL SYSTEM (Knopf 1979); JAMES N.
ROSENAU, THE STUDY OF GLOBAL INTERDEPENDENCE: ESSAYS ON THE TRANSNATIONALIZATION OF WORLD
AFFAIRS (Frances Pinter 1980); PETER WILLETS (ED.), PRESSURE GROUPS IN THE GLOBAL SYSTEM: THE
TRANSNATIONAL RELATIONS OF ISSUE-ORIENTATED NON-GOVERNMENTAL ORGANIZATIONS (St. Martin’s Press
1982).

8
Joseph S. Nye & Robert O. Keohane, Introduction, in TRANSNATIONAL RELATIONS AND WORLD POLITICS xviii-
xix. (Robert O. Keohane & Joseph S. Nye eds., 1972); MANSBACH, FERGUSON, & LAMPERT, supra note 7, at 41-45;
JACOBSON, supra note 7, at 14-19, 398-414; ROSENAU, supra note X, at 1-2.

9
Nye & Keohane, supra note 8, at xix-xx; JACOBSON, supra note 7, at 416-422; Peter Willetts, Introduction, in
PRESSURE GROUPS IN THE GLOBAL SYSTEM: THE TRANSNATIONAL RELATIONS OF ISSUE-ORIENTATED NON-
GOVERNMENTAL ORGANIZATIONS 21-22, 186-187 (Peter W. Willetts ed., 1982).

14
The new theoretical framework for the study of transnational actors that emerged in the
mid-1990s was spearheaded with the publication of Thomas Risse’s edited volume, Bringing
Transnational Relations Back In,
10
which looked to redefine the direction of transnational
studies away from the state-centered versus society-centered debate of the past. The work that
transnational scholars should undertake was, according to Risse, not a debate over which view
should hold primacy but rather a study of how to synthesize the two into a realistic understanding
of the international system and the place of transnational relations within it.
11
Such a point of
view regarding the long standing state-centered / society-centered debate makes sense, for in the
end both sides (of the debate) agree on far more than they disagree. The state-centered scholars
were interested primarily in how international or transnational actors could directly influence
domestic state action. Similarly, the later society-centered scholars like were also primarily
interested in studying the effect of transnational actors within the international system. Indeed,
the work of the earlier state-centered scholars accepted that international or transnational actors
could independently shape behavior and interests within the international system, which was a
key finding of the later society centered scholarship.
12

By understanding that the state-centered / society-centered debate was really a difference
of semantics, Risse could step over the old debate and instead proposes that the real research
question that transnational scholars should ask was under what international and national
circumstances did “transnational coalitions and actors who attempt to change policy outcomes in
a specific issue-area succeed or fail to achieve their goals?”
13
It is with this question in mind that
Risse then set out to construct a theoretical framework for identifying the conditions in which
transnational actors could succeed in affecting domestic state policy / behavior.

Risse conceptualized
14
a theoretical framework that looked to both national level
institutions and networks, as well as the international level norms they operated within, in order
to identify the policy impact of transnational actors.
15
He identified two independent variables
that could influence domestic policy impact: variation in the amount of international
institutionalization in regards to the policy being advocated; and variation in the composition of
national level institutional structures of the state being targeted for influence.

10
THOMAS RISSE-KAPPEN (ED.), BRINGING TRANSNATIONAL RELATIONS BACK IN: NON-STATE ACTORS, DOMESTIC
STRUCTURES, AND INTERNATIONAL INSTITUTIONS (Cambridge University Press 1995).

11
Thomas Risse-Kappen, Introduction, in BRINGING TRANSNATIONAL RELATIONS BACK IN: NON-STATE ACTORS,
DOMESTIC STRUCTURES, AND INTERNATIONAL INSTITUTIONS 5 (Thomas Risse-Kappen ed., 1995).

12
See supra note 6.

13
Risse-Kappen, supra note 11, at 5.

14
Conceptualization here is defined as the assignment of meaning. See Giovanni Sartori, Concept Misinformation in
Comparative Politics, 64 AM. POL. SCI. REV. 1033, 1033-1034 (1970).

15
Risse-Kappen, supra note 11, at 6.

15
International institutionalization was important because it was a process which could act
as a force facilitating the access of transnational actors into national level structures.
16

International regimes
17
could act to constrain the power of states to restrict the access points
available to transnational actors to penetrate them.
18
Even the most consolidating or centralized
of states, if part of some type of regulating international regime (e.g. the Kyoto Protocol for
regulating carbon emissions, or the Helsinki Charter which sets up a mechanism for monitoring
human rights in Europe, etc.), could find its available options restrained when trying to restrict
transnational access into its domestic structures.

National level or “domestic” state institutional structures mattered because these
structures could control both the ability of transnational actors to access the institutions of the
state being targeted and, once in, form “winning policy coalitions” with relevant national level
actors.
19
Domestic structures could “mediate, filter, and refract the efforts by transnational actors
and alliances to influence policies.”
20
The more consolidated the domestic structures of a state
were,
21
the more difficult it could be for transnational actors to penetrate the system.
22
States
with concentrated power and rigid institutions were much more likely to be able to restrict the
entry and operation of transnational actors through legal and / or financial hurdles. This being
said, if transnational actors could penetrate into such rigid institutions, they could then possibly
have massive impacts.
23
The same held true, it was claimed, for the reverse scenario, the more
diffuse the domestic structures of a state were, the easier it could be for transnational actors to
penetrate the system.
24
Within such environments, however, penetration could come easily but,
due to the fragmented institutions inherent to such systems, policy demands were not likely to
have a very large impact, as transnational actors would have to build numerous cross-cutting
coalitions in an attempt to exert influence.
25

16
Id. at 31.

17
See Stephen D. Krasner, Structural Causes and Regime Consequences: Regimes as Intervening Variables, in
INTERNATIONAL REGIMES 2 (Stephen D. Krasner ed., 1983) (Where the author defines regimes as “implicit or
explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a
given [issue area].”).

18
Risse-Kappen, supra note 11, at 31.

19
Id. at 6-7, 25.

20
Id. at 25.

21
Id. at 23-24.

22
Id. at 6, 26-27.

23
Id.

24
Id. at 7, 27-28.

25
Id.

16
The world Thomas Risse envisioned in Bringing Transnational Relations Back In was
one in which international and national level structures stood side to side --- with transnational
actors trying to penetrate into the domestic state institutional structures. Though Risse’s
framework was a welcome step by moving away from broad discussions of whether the state or
international society was the proper unit of analysis, and in identifying factors that should shape
transnational actor influence, it remains underspecified. Though innovative in its focus on
hypothesis generation and on a dualist system / national level analysis of how transnational
actors affect domestic state behavior, Risse’s framework of transnational actor behavior fails to
systematically operationalize
26
the independent variables he cites. The result is a thin account of
how transnational actors matter stemming from a series of measurement problems due to the
underlying concepts being much too general. Unfortunately, not only has subsequent scholarship
failed to address these problems of measurement in Risse’s framework, it has also failed, in any
meaningful way, to engage in Risse’s call to move away from state-centered / society-centered
debates of the past.

C. Present State of the Transnational Studies Sub-Field: Missed Opportunities
and Limited Progress

Since the emergence of the new theoretical framework for the study of transnational
actors in the mid-1990s, the state of transnational studies has failed to progress and develop this
promising new avenue for empirical research in any sustained or systematic manner. Indeed, the
running theme of much of this current scholarship is a duplication of earlier research. While
many scholars have favorably cited the initial call to bridge the state-centered / society-centered
debate of the past, only a few have taken up the task. Additionally, the scholarship that has
attempted to move beyond state-centered / society-centered debate, and look to study how
transnational actors can possibly affect domestic state behavior, has not meaningfully engaged
literature in other disciplines that have also looked to the same issue. This unintended
parochialism is especially unfortunate, as scholarship in other fields that looks to how
international and national systems interact, has much to offer the sub-field of transnational
studies.

The bulk of current work within the field of transnational studies has, unfortunately, not
refined, utilized in any systematic fashion, or indeed moved beyond the promising theoretical
framework for the study of transnational actors introduced in the mid-1990s. A survey of major
empirical work in the sub-field since 1995 reveals a spate of missed opportunities. Studies
rejecting the realist presumption that domestic states have fixed goals of “power, security, and
wealth,” and instead exploring how states can become “socialized” by the network of actors
(both state and transnational) that made up the international system
27
have merely followed in

26
To engage in empirical work means that there must be some assignment of a value to the phenomena under study,
for it is only through doing this that what is being studied can be measured, however imperfectly. In the language of
social science, this process is called “operationalization.” See e.g. Robert Adcock & David Collier, Measurement
Validity: A Shared Standard for Qualitative and Quantitative Research, 95 AM. POL. SCI. REV. 529 (2001); Gerardo
L. Munck & Jay Verkuilen, Conceptualizing and Measuring Democracy: Evaluating Alternative Indices, 35 COMP.
POL. STUD. 5 (2002).

27
See MARTHA FINNEMORE, NATIONAL INTERESTS IN INTERNATIONAL SOCIETY (Cornell University Press 1996);
JACKIE SMITH, CHARLES CHATFIELD, & RON PAGNUCCO (EDS.), TRANSNATIONAL SOCIAL MOVEMENTS AND
17
the well-trodden path of the earlier state-centered scholars who were interested in the abilities of
transnational actors to affect behavioral change on domestic states.

Despite the overall failure of transnational studies scholars to move forward the state of
research in the sub-field from the promising strides made in the mid-1990s, there has been some
limited progress spearheaded by a few researchers willing to engage with the ideas first
presented in Thomas Risse’s Bringing Transnational Relations Back In. Indeed, a survey of this
literature reveals that, perhaps unwittingly, it has begun to move the study of transnational actors
in a more inter-disciplinary direction. The most promising of this scholarship has sought to study
not only specific transnational actors and their ability to affect domestic state behavior, but to go
beyond and study “networks” of such actors bound together by shared goals and values.
28
This
scholarship has cited favorably Risse’s framework, with its emphasis on how both international
forces and national level institutions can affect the ability of transnational actors to affect policy
change, but sought to refine it by exchanging its static view of transnational behavior towards
targeted states for a more fluid one (i.e. where the efforts of transnational actors within targeted
states are a back and forth affair rather than a single one shot attempt).
29
While the limited efforts
of this scholarship are to be commended for its direct engagement with the ideas and framework
first forwarded by Risse in the mid-1990s, none of the scholarship goes far enough. The
scholarship is deficient in its failure to fully explore the inter-disciplinary implications of the
limited elaboration it makes to the original Risse framework,
30
and in this failure misses a golden

GLOBAL POLITICS: SOLIDARITY BEYOND THE STATE (Syracuse University Press 1997); RICHARD A. HIGGOTT,
GEOFFREY R. D. UNDERHILL, & ANDREAS BIELER (EDS.), NON-STATE ACTORS AND AUTHORITY IN THE GLOBAL
SYSTEM (Routledge 2000).

28
See MARGARET E. KECK & KATHRYN SIKKINK, ACTIVISTS BEYOND BORDERS: ADVOCACY NETWORKS IN
INTERNATIONAL POLITICS (Cornell University Press 1998); THOMAS RISSE, STEPHEN C. ROPP, & KATHRYN SIKKINK
(EDS.), THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS AND DOMESTIC CHANGE (Cambridge University
Press 1999); SANJEEV KHAGRAM, JAMES V. RIKER, & KATHRYN SIKKINK (EDS.), RESTRUCTURING WORLD POLITICS:
TRANSNATIONAL SOCIAL MOVEMENTS, NETWORKS, AND NORMS (University of Minnesota Press 2002).

29
See e.g. KECK & SIKKINK, supra note 28, at 12-16 (Where the authors, building on Risse’s original framework,
create a model that they label as the “boomerang pattern.” This model envisions a world where domestic advocacy
groups can activate transnational advocacy networks who will then, through issue framing and motivating collective
action, put pressure on other domestic states and relevant international organizations.); Thomas Risse & Kathryn
Sikkink, The Socialization of Human Rights Norms, in THE POWER OF HUMAN RIGHTS: INTERNATIONAL NORMS
AND DOMESTIC CHANGE 4-5, 17-20 (Thomas Risse, Stephen C. Ropp, & Kathryn Sikkink eds., 1999) (Where the
authors, building on both the original framework offered by Risse and Keck and Sikkink’s “boomerang pattern,”
create a “spiral model” that envisions a world where, much like that in the “boomerang effect,” domestic advocacy
groups can activate their transnational advocacy network that will then motivate collective action. Where the two
models differ is that the “spiral model” views the process as much more fluid, with the targeted state making first
blanket denials, later tactical concessions, and finally rule consistent behavior. The key in the back and forth is that
each stage can result in the targeted state becoming “socialized” by conforming to preferred behaviors and norms.);
Sanjeev Khagram, James V. Riker, & Kathryn Sikkink, From Santiago to Chile: Transnational Advocacy Groups
Restructuring World Politics, in RESTRUCTURING WORLD POLITICS: TRANSNATIONAL SOCIAL MOVEMENTS,
NETWORKS, AND NORMS 3-4, 11-16 (Sanjeev Khagram, James V. Riker, & Kathryn Sikkink eds., 2002) (Where the
authors envision a world where transnational actors affect change in the international system either through taking
well established “international norms” and using them to “persuade” outlying actors to conform their behavior, or
attempting to establish new “international norms” where none had previously existed in a back and forth process.).

30
See e.g. KECK & SIKKINK, supra note 28 (Where the authors attempt to explain how the concept of “analytic
frames” from sociology can help explain the ability of transnational actors to motivate collective action, but then fail
18
opportunity to correct some of the problems of under-specificity inherent to the original
framework.

II. An Inter-Disciplinary Framework for the Study of Transnational Relations

The study of how international and national systems interact is not solely the purview of
those studying such phenomenon under the umbrella of transnational studies within the field of
international relations. Though they may not label themselves as “transnational studies scholars,”
socio-legal scholars studying the interactions between norms on the international and national
levels, and political scientists studying the specific effects of institutions, have had much to say
(and have much to contribute) to understanding how transnational actors operate and affect
domestic state behavior, and the methods by which these effects can be measured. An inter-
disciplinary framework for the study of transnational relations would present not only a new
more systematic structure to the exploration of how transnational actors can possibly affect
domestic state behavior, but also an understanding that the study of transnational actors is one
that specifically lends itself to both multiple disciplines and multiple methods.

A. Review of the Relevant Inter-Disciplinary Literature

Socio-legal scholarship studying norm formation and interaction both within and between
the international and national levels, and the historical institutionalist movement within political
science, have much to contribute to the study of transnational relations. Socio-legal scholarship,
with its emphasis on the sequence of factors that drive the interactions between the international
and national systems, offers an analytically sound and methodologically systematic way to study
the relationships between these two levels. Similarly historical institutionalism, with its focus on
how institutions mediate and shape interactions, and the importance of time and historical
trajectory in institutional endurance and design, offers a powerful way forward towards studying
the interactions that are at the heart of transnational studies.

1. Socio-Legal Literature on Norm Formation, Implementation, and
Interaction

The study of how international and national systems interact is not solely the purview of
those within the field of transnational studies. Socio-legal scholars have also studied these effects
for quite some time and have produced useful empirical findings that could contribute to the
study of how transnational actors can affect domestic state behavior. Although certain current
transnational studies scholarship has grasped at some of the insights of socio-legal scholarship

to fully develop their discussion by not expounding on the specific use and application of the concept to the study of
transnational actors.); RISSE, ROPP, & SIKKINK, supra note 28 (Where the authors, whilst admirably recognizing that
rule implementation can act as an iterative process, do not cite to any of the literature in socio-legal studies that first
pointed this out in the 1980s, nor do they then continue the observation into how rule making can also act in such a
manner. The authors also intuitively accept that historical institutionalism has much that could add to their analysis,
but beyond a passing citation to some of the relevant literature ignore fully utilizing historical institutionalist
approaches in their study.); KHAGRAM, RIKER, & SIKKINK, supra note 28 (Where the authors do admirably develop
a discussion and analysis of how analytic frames act to mobilize transnational coalitions, but then do not extend the
analysis into detailing the role institutions may, or indeed may not, play in the process.).

19
(e.g. rule implementation as an iterative process), this realization has come in a seemingly
independent manner, with no citations to, or analysis of, the earlier socio-legal scholarship.
31

Socio-legal studies (alternatively referred to as legal sociology or law and society)
explore the effect of social forces on the law.
32
Rather than being interested solely in the internal
rules and doctrines that form a specific doctrinal body of law, socio-legal scholars instead look to
how law can be, in part, a social construction and, in this way, interact with wider historical,
institutional, and cultural forces within society.
33
Socio-legal scholarship therefore, by definition,
covers a wide area of research topics. The study of how international and national systems
interact has long been of interest to socio-legal scholars, with a wide body of empirical findings
produced. Socio-legal scholarship has identified, with great precision, the emergence of norms,
and the causal mechanisms that accompany their implementation, in several diverse issue areas.

Strands of socio-legal scholarship, adopting a very actor-centric model, have found that
legal norms can be endogenous or “generated within the social realm that [they] seek to
regulate.”
34
Instead of a traditional view that conceptualizes legal norms and the organizations
that they seek to regulate as separated --- i.e. law as exogenous to organizations, this scholarship
has instead viewed norms and organizations as “intertwined and mutually constitutive.”
35
It has
been proposed that this endogenous relationship is made possible in those instances where laws
and regulations tend to be broadly and ambiguously worded, thus providing organizations with
large degrees of freedom in fashioning compliance.
36
Given this, organizations will often turn to
their “legal environments” for ideas on how to fashion compliance with these ambiguous rules.
37

“Legal environments” in this scholarship are defined as consisting of more than just specific laws
(and the sanctions built into them), but also of the “societal norms” and perceptions associated
with said laws --- in other words, the “broad set of rules, norms, routines, and practices that
shape not only employers’ understandings of the law and compliance but their notions of what is
right, fair, and proper.”
38
As the “compliance practices” of organizations becomes

31
See supra note 30.

32
KITTY CALAVITA, INVITATION TO LAW & SOCIETY: AN INTRODUCTION TO THE STUDY OF REAL LAW 4 (University
of Chicago Press 2010)

33
Id. at 3-5.

34
Lauren Edelman, Law at Work: The Endogenous Construction of Civil Rights, in HANDBOOK OF EMPLOYMENT
DISCRIMINATION RESEARCH: RIGHTS AND REALITIES 337-339 (Laura Beth Nielson & Robert L. Nelson eds., 2005).

35
Id. at 337.

36
Lauren Edelman, Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law, 97
AM. J. SOC. 1531, 1532, 1536-1538 (1992); Edelman (2005), supra note 34, at 337.

37
Edelman (2005), supra note 34, at 339.

38
See Lauren Edelman, Legal Environments and Organizational Governance: The Expansion of Due Process in the
American Workplace, 95 AM. J. SOC. 1401 (1990); Lauren Edelman, Legality and the Endogeneity of Law, in LEGAL
AND COMMUNITY: ON THE INTELLECTUAL LEGACY OF PHILIP SELZNICK 194 (Robert A. Kagan, Martin Krygier, &
Kenneth Winston eds., 2002)

20
institutionalized, it is claimed that courts will, when consulted, largely defer to the interpretations
as fashioned by the organizations themselves --- institutionalization being seen as an indication
(by the courts) of an “effective” model of compliance.
39

Keeping with the broad outlines of an actor-centric model but employing a more
anthropological approach, other socio-legal scholarship has determined that certain business
regulations have, over time, becoming more and more globalized.
40
This scholarship views
institutional actors as “originators of change rather than mere agents of change,”
41
and thus focus
on how global norms become implanted onto the practices of individual actors --- labeling this
process, appropriately enough, a “micro-macro theory.”
42
Global norms, labeled as “principles,”
are generally broad standards (e.g. “transparency” or “harmonization”) that then set the stage
(through a web of global interactions between various actors such as domestic states,
transnational actors, and multinational CEO’s) for more specific rules to emerge.
43
The
mechanisms for these global interactions include coercion, reward, reciprocity, and capacity
building.
44

Building on the these various insights, socio-legal scholars Terence Halliday and Bruce
Carruthers have examined how norms can be exchanged and transferred between, on the one
hand, the transnational governmental, quasi-governmental, and non-governmental institutions
within the international community as a whole, and, on the other hand, domestic states.
According to Halliday and Carruthers, law making and implementation, on both the system and
national levels, can act as an iterative and recursive process.
45
International and national level
actors can develop legal norms that can then be refracted onto one another through exogenous
processes such as economic coercion, persuasion through international institutions, and universal
norms (that can then act as models on what constitutes acceptable behavior within the
international and / or national system).
46
These norms can then undergo recursive cycles, on both

39
Edelman (2002), supra note 38, at 199-210; Edelman (2005), supra note 34, at 350-351.

40
JOHN BRAITHWAITE & PETER DRAHOS, GLOBAL BUSINESS REGULATION 10-14 (Cambridge University Press
2000).

41
Id. at 17.

42
Id. at 14.

43
Id. at 16-31. See also Kenneth W. Abbott & Duncan Snidal, Hard and Soft Law in International Governance, 54
INT. ORGAN. 421 (2000) (Where the author describes the interactions between “hard” international norms, i.e.
precise legal obligations, and “soft” obligations where legalization is largely absent.); José E. Alvarez, International
Organizations: Then and Now, 100 AM. J. INT. LAW 324 (2006) (Where the author recounts the process that
emerged at the start of the 20th century to institutionalize international norms within treaty based international
organizations.).

44
BRAITHWAITE & DRAHOS, supra note 40, at 17.

45
Terence C. Halliday & Bruce G. Carruthers, The Recursivity of Law: Global Norm Making and National Law
Making in the Globalization of Corporate Insolvency Regimes, 112 AM. J. SOC. 1135, 1135-1138 (2007).

46
Id. at 1146-1148.

21
the international and national levels, as formal law (“the law on the books”) goes through cycles
of change as it is interpreted and implemented (“law in practice”),
47
refracting back and forth
between the two levels.
48
That episodes of these recursive cycles will occur is not a given, nor
will these cycles necessarily occur in perpetuity;
49
rather they are driven by four distinct
identifiable drivers or mechanisms
50
: (1) the indeterminacy of law (the ambiguities inherent in
statutes, regulations, and court opinions that lead to the possible unintended consequences of
their application, setting off repeated rounds of redrafting and reapplication
51
); (2) contradictions
(the phenomenon that emerges ideologically when clashing visions amongst actors lead to
imperfect legal settlements, or institutionally when legal implementation is divided out between
different institutions
52
); (3) diagnostic struggles (the struggle, between various actors, of
diagnosing perceived shortcomings in legal norms and identifying corrective prescriptions
53
);
and (4) actor mismatch (mismatches that occur when there is a disparity between actors who
actually participate in the norm-making process in a particular issue area, and those who the
norms actually affect --- in other words actors who are directly affected by a new norms
implementation are not participants in its creation
54
). “Legal recursivity” conceptualizes norm-
making as, above all else, an “exercise of power” and a “struggle among competing actors in

47
“Legal recursivity,” following classic socio-legal theory, holds that the “conditions of lawmaking affect
implementation, and the circumstances of practice influence what law gets placed on the books.” See Terence C.
Halliday, Recursivity of Global Normmaking: A Sociolegal Agenda, 5 ANNU. REV. LAW & SOC. SCI. 16.1, 16.7
(2009).

48
Id. at 1144, 1146-1147.

49
Halliday, supra note 47, at 16.12.

50
Mechanisms have been defined in numerous ways by social scientists. Despite this plethora of definitions, a
simplified understanding of a causal mechanism, one that can partially incorporate all of the various
conceptualizations put forward in current scholarship, could perhaps be that of a causal mechanism as a type of
“trigger” that activates relationships between various social forces or variables. For a sampling of the various
conceptualizations of mechanisms within the current literature, see BARBARA KOSLOWSKI, THEORY AND EVIDENCE:
THE DEVELOPMENT OF SCIENTIFIC REASONING 6 (MIT Press 1996) (Where the author defines a mechanism as “the
process by which a cause brings about an effect … a theory or an explanation, and what it explains is how one event
causes another.”); James Mahoney, Beyond Correlational Analysis: Recent Innovations in Theory and Method, 16
SOC. F. 575, 580-581 (2001) (Where the author defines mechanisms as “entit[ies] that --- when activated --- generate
… an outcome of interest.”); Charles Tilly, Mechanisms in Political Processes, 4 ANNU. REV. POLIT. SCI. 21, 25-26
(2001) (Where the author defines mechanisms as “a delimited class of events that change relations among specified
sets of elements in identical or closely similar ways over a variety of situations.”).

51
Halliday & Carruthers, supra note 45, at 1149; Halliday, supra note 47, at 16.19-16.20.

52
Halliday & Carruthers, supra note 45, at 1149-1150; Halliday, supra note 47, at 16.18-16.19. There is also vast
literature in public law on ideological contradiction, especially as related to the interactions between the U.S.
Congress and the Federal Courts. See e.g. R. SHEP MELNICK, BETWEEN THE LINES: INTERPRETING WELFARE RIGHTS
(Brookings Institution Press 1994); WILLIAM N. ESKRIDGE, DYNAMIC STATUTORY INTERPRETATION (Harvard
University Press 1994).

53
Halliday & Carruthers, supra note 45, at 1150-1151; Halliday, supra note 47, at 16.16-16.17.

54
Halliday & Carruthers, supra note 45, at 1150-1151; Halliday, supra note 47, at 16.15-16.16.

22
global arenas.”
55
Norm-making episodes have a beginning (time 1), when there are competing
claims and conflicts and an end (time 2), when behavior and expectations have become
“routinized, orderly, and predictable” by accepted, and therefore authoritative, norms.
56

Recursive cycles are what occurs between time 1 and time 2. Figure 2.01 below presents a
simplified representation of legal recursivity in action:

55
Halliday, supra note 47, at 16.6-16.7.

56
Id. at 16.12.

23
Figure 2.01: Legal Recursivity in Action
57

Cycles of norm-making in the international system

Cycles of norm-making between the national and international
system

Cycles of norm-making in the national system

57
Figure replicates chart provided in Halliday, supra note 47, at 16.8.
Int’l
Financial
Institutions
Legal
Complexes

Int’l NGOs

Mechanisms

- Indeterminacy
- Contradictions
- Diagnostic Struggles
- Actor Mismatch

Epistemic
Communities

IGOs

Professions
International
Tribunals

Mechanisms

- Indeterminacy
- Contradictions
- Diagnostic Struggles
- Actor Mismatch

Mechanisms

- Indeterminacy
- Contradictions
- Diagnostic Struggles
- Actor Mismatch

Formal Law
(e.g.
Statutes,
Regulations)

Mechanisms

- Indeterminacy
- Contradictions
- Diagnostic Struggles
- Actor Mismatch

Law in Practice
(e.g.
Implementation)
24
Through its detailed description of international and national norm formation and
implementation, and the mechanisms that drive the process, socio-legal scholarship in general,
and the new emerging theory of legal recursivity in particular, is exceptional in offering a true
blueprint for examining the methods through which international and national level norms
interact. The rigorous framework legal recursivity provides for understanding the process of
international / national norm formation has the potential to provide the specification in
identifying the factors that should shape transnational actor influence that the current Risse
inspired framework lacks.

2. The Historical Institutionalist Literature within Political Science

Current transnational studies scholarship seems to intuitively accept that historical
institutionalism has a contribution, of some kind, to make to the sub-field, though what form
such a contribution should take is left open. Indeed, although Thomas Risse in Bringing
Transnational Relations Back In cites to the insights generated by historical institutionalism
movement generally as potential tools in studying the relationships between transnational actors
and domestic structures,
58
he then fails to either explain what historical institutionalism is in any
detail, nor do he or his contributors then proceed to clearly apply clearly historical institutionalist
analysis to any of the empirical chapters of the edited volume.

Historical institutionalism is “neither a particular theory nor a specific method,”
59
though
many scholars have confused it as one or the other. Historical institutionalism is instead a
process or “approach to studying politics and social change” (with the associated method most
often used to study this change being the case study).
60
This process is different from others
because in looking to answer empirical questions, it focuses on both the historical orientation and
trajectory of institutions, and how they can change and shape behavior.
61
History itself then
becomes a methodological tool through the engagement of longitudinal cross-period analysis
both within and across cases.
62
Historical institutionalist analysis looks to measure the impact of
institutional “form and configuration” on outcomes.
63
History is important in this analysis
because, once established, institutions may endure for extensive lengths of time and thus affect
outcomes for significant periods.
64

58
Risse-Kappen, supra note 11, at 20-21.

59
Sven Steinmo, Historical Institutionalism, in APPROACHES AND METHODOLOGIES IN THE SOCIAL SCIENCES: A
PLURALIST PERSPECTIVE 118 (Donatella della Porta & Michael Keating eds., 2008).

60
Id.

61
Id.

62
Evan S. Lieberman, Causal Inference in Historical Institutional Analysis: A Specification of Periodization
Strategies, 34 COMP. POL. STUD. 1011, 1016-1023 (2001); Steinmo, supra note 59, at 122.

63
Lieberman, supra note 62, at 1012-1013.

64
Id.

25
Historical institutionalism is a sub-variant of the “new institutionalist” movement that
first emerged in political science and sociology in the 1980s. Spearheaded by the early work of
James G. March and Johan P. Olsen, the new institutionalism emerged as a reaction to the
behavioral revolution that had swept the social sciences in the 1960s, and the rational choice
movement that had followed. The new institutionalism argued for a fresh approach to
understanding political action, one that reintroduced into the equation the role of institutions.
65

This could be done, in part, by understanding that human rationality is restricted, or “bounded.”
Human rationality is context specific, in that it is the product of the environment in which it is
formed.
66
Moving beyond traditional definitions that focused solely on structure, the new
institutionalism defined institutions as “collections of interrelated rules and routines that define
appropriate actions in terms of relations between roles and situations.”
67
This expanded
definition was key in identifying how individuals could have their preferences shaped not by any
individual calculation of maximizing “values” and / or “expectations,” but rather by the “rules of
behavior, norms, roles, physical arrangements” that encapsulated the institutional structure of
their environment.
68
Preferences have nothing to do with the process of choice (i.e. what choices
are on offer); rather they have more to do with the norms of the environment in which have been
formed.
69
Preferences then can change based on changing norms
70
--- as such, they are “neither
stable nor exogenous.”
71
Institutions then matter because they are quite often the container
within which norms are created and defined. Indeed, institutions must be understood as more
than “simple mirrors of social forces,” for they can, at times, possess autonomous character and
act with a singleness of purpose, as the various similar individual preferences within them
coalesce.
72

Historical institutionalism, one of the three main branches to emerge out of the new
institutionalism (the others being sociological institutionalism and rational choice
institutionalism), seeks to explain the differences within the preferences generated by different
institutions across national and transnational boundaries. Standing in the middle of the traditional

65
JAMES G. MARCH & JOHAN P. OLSEN, REDISCOVERING INSTITUTIONS: THE ORGANIZATIONAL BASIS OF POLITICS 4
(Free Press 1989).

66
Id. at 11-14.

67
Id. at 160.

68
James G. March & Johan P. Olsen, The New Institutionalism: Organizational Factors in Political Life, 78 AM.
POL. SCI. REV. 734, 741 (1984).

69
Id. at 739.

70
This conceptualization of preference formation is very similar (if not identical) to that found within social
constructivist approaches within international relations theory, which hold that the international system is governed
by principles that are not permanent, but rather contingent on ongoing social processes and interactions (i.e.
“constructed”). See e.g. John G. Ruggie, What Makes the World Hang Together? Neo-utilitarianism and the Social
Constructivist Challenge, 52 INT’L ORG. 855 (1998).

71
March & Olsen, supra note 68, at 739.

72
Id.

26
definition focused on structure, and that offered by the new institutionalism focused on the rules
and routines, historical institutionalism defines institutions as both the formal structure of
organizations and the informal “rules of conduct” that “structure” decision-making processes.
73

Historical institutionalists look to explain how and why similarly situated institutions can
function in completely different ways both within a domestic context, and comparatively across
borders.
74
Accepting the concept of bounded rationality, as elaborated by March and Olsen, and
building off many of their dominant themes, the historical institutionalists see institutions as key
in shaping the preference formation. In this way, the structures of institutions have a direct effect
upon the terms and realities of political situations, and thus leave “their own imprint on political
outcomes.”
75
The examination, however, goes beyond simply the institutions themselves under
study. The political factors that affect the structure and authority of individual institutions and set
their function in the broader system, have to also be understood as well in order to fully unpack
the institutional context of the preferences being created and shaped.
76
Institutions then are not
classic independent or explanatory variables, but rather act as mediators or filters shaping the
effects of other independent variables (whatever they may be).
77
Thus similar independent
variables across cases may produce different outcomes if the institutions in question differ in
substantial ways.
78
The stability of institutions (or lack thereof) is important, because the more
stable institutional arrangements are, the more constrained the range of possible outcomes.
79

Utilizing these innovative insights, the past decade has seen much pioneering historical
institutionalist scholarship by political scientists.
80

73
Lieberman, supra note 62, at 1013.

74
See e.g. Kathleen Thelen & Sven Steinmo, Historical Institutionalism in Comparative Politics, in STRUCTURING
POLITICS: HISTORICAL INSTITUTIONALISM IN COMPARATIVE ANALYSIS (Sven Steinmo, Kathleen Thelen, & Frank
Longstreth eds., 1992).

75
Id. at 9.

76
Tom Ginsburg & Robert A. Kagan, Institutionalist Approaches to Courts as Political Actors, in INSTITUTIONS &
PUBLIC LAW: COMPARATIVE APPROACHES 2 (Tom Ginsburg & Robert A. Kagan eds., 2005).

77
Lieberman, supra note 62, at 1012-1015.

78
Id.

79
Id.

80
See e.g. Margaret Weir, Ideas and the Politics of Bounded Innovation, in STRUCTURING POLITICS: HISTORICAL
INSTITUTIONALISM IN COMPARATIVE ANALYSIS (Sven Steinmo, Kathleen Thelen, & Frank Longstreth eds., 1992)
(Where the author describes how the fragmented nature of American political institutions has resulted in an
environment where political opposition can be easily mobilized, thereby encouraging policy-makers to adopt
shortened time frames for developing policies, and short term coalitions for implementing them.); Bo Rothstein,
Labor Markets and Working Class Strength, in STRUCTURING POLITICS: HISTORICAL INSTITUTIONALISM IN
COMPARATIVE ANALYSIS (Sven Steinmo, Kathleen Thelen, & Frank Longstreth eds., 1992) (Where the author
explores how Sweden’s utilization of the “Ghent” system, where unemployment benefits were disbursed through
unions rather than the state, provided an incentive for the Swedish working class to unionize. In this way, trade
union membership and recruitment was manifestly stronger in Sweden than in similarly situated countries, even
though Sweden was one of the latest industrializers in Western Europe.).

27
As a process towards to studying politics and social change, historical institutionalism
and its associated method of the case study, can contribute to the study of transnational relations
by focusing inquiry specifically on how various institutions, on both at the international and
national level, mediate and shape outcomes. By understanding that history matters in that it sets
the context for the variables under study, and engaging in case studies that employ longitudinal
cross-period analysis that can help test hypothesized relationships, historical institutionalism
offers a powerful way forward towards studying the interactions that are at the heart of
transnational studies.

B. Advantages of an Inter-Disciplinary Framework for the Study of
Transnational Relations

An inter-disciplinary approach to the study of transnational relations, one encompassing
not only the wide corpus of work done in the transnational studies sub-field of international
relations, but also incorporating socio-legal scholarship on how international and national
systems interact and historical institutionalist approaches from political science, would present
not only a new more systematic structure to the exploration of how transnational actors can
possibly affect domestic state behavior, but also an understanding that the study of transnational
actors is one that specifically lends itself to both multiple disciplines and multiple approaches.
As has been seen, the publication of Bringing Transnational Relations Back In in 1995 began a
process through which, the mainly international relations scholars traditionally engaged in
transnational studies, sought to extend the sub-field beyond the state-centered / society-centered
debate of the past and engage the sub-field with the common question of how transnational
actors could affect domestic state behavior and vice versa. Though the new theoretical
framework presented was a promising one, for this new direction to succeed it must be built
upon and refined in order to improve on its very thin account of transnational actor behavior.
Any new model for the study of transnational relations must address this key flaw of under-
specification inherent in Risse’s framework --- an under-specification that can be traced to the
framework’s failure to rigorously identify the key independent variables for the study of how
international and national norms interact, and the techniques by which these effects can be
measured. This last point is key, for although innovative in its focus on hypothesis generation
and on a dualist system / national level analysis of how transnational actors affect domestic state
behavior, Risse’s framework of transnational actor behavior suffers from a series of
measurement problems centering mainly on a failure to systematically operationalize the
independent variables he cites.

Recall that in Bringing Transnational Relations Back In Thomas Risse presented the
following independent variables for the study of how transnational actors could affect domestic
state behavior:

28
Figure 2.02: Independent Variables as Identified by Risse in Bringing Transnational
Relations Back In

INDEPENDENT VARIABLE(S): DEPENDENT VARIABLE:
• Variation in the amount of international institutionalization in
regards to the policy being advocated (i.e. the scope and extent of
international regulation, treaties, regimes, etc. governing that policy
area).
• Variation in the composition of the domestic structures of the state
being targeted for influence (i.e. the political institutions at the top
of the state, the societal structures or civil society at the bottom, and
the policy networks linking them).
Variation in the policy impact of
transnational actors on the domestic
state being targeted for influence.

The utilization of the insights generated by the socio-legal literature on international and
national norm interaction, especially the empirical work of Terence Halliday and Bruce
Carruthers highlighting the phenomenon of legal recursivity, offers a path towards
operationalizing and therefore systematically testing the phenomenon Risse identifies as
“international institutionalization.” This first independent variable in Risse’s framework
(identified as the extent, or lack thereof, of international regulation, treaties, and regimes
governing specific issue areas) is analogous to the differences Halliday and Carruthers describe
between the beginnings of norm-making episodes (time 1) when there are competing claims and
conflicts, and the end (time 2) of such episodes, when behavior and expectations have become
“routinized, orderly, and predictable” by accepted, and therefore authoritative, norms. Legal
recursivity (driven by the four mechanisms Halliday and Carruthers identify
81
) being what
occurs between time 1 and time 2. The advantage of this approach is that it not only allows for
the identification (around specific issue areas) of conflicting versus settled norms, but it also
allows for an investigation of the actual process itself through which norms may move from
being disputed (time 1 of the recursive cycle) to being established (time 2 of the recursive cycle)
and the effects such cycles may possibly have on the ability of transnational actors to influence
domestic politics.

Fully and clearly utilizing historical institutionalism in the study of transnational relations
could achieve a great deal in helping understand how the second variable Risse identifies as
“variation in the national level structures,” affects the abilities of transnational actors to affect
domestic state behavior. By refocusing study on specific institutions and how they mediate
transnational politics, rather than a system level snapshot that views “domestic structures” as an
integrated whole, the range of observations (the N) for study can be extended, and the specific
relationships at play better identified. The importance of institutional structure and time that
permeates historical institutionalist work,
82
and the associated case study method’s strength in
hypothesis testing, offer new tools for testing the importance of institutions in the ability (or
failure) of transnational actors to affect domestic state behavior. Figure 2.03 below presents a

81
I.e. As discussed earlier, these mechanisms are: (1) the indeterminacy of law; (2) contradictions; (3) diagnostic
struggles; and (4) actor mismatch.

82
See Lieberman, supra note 62; PAUL PIERSON, POLITICS IN TIME: HISTORY, INSTITUTIONS, AND SOCIAL ANALYSIS
(Princeton University Press 2004).

29
representation the independent and mediating variables in an “inter-disciplinary framework for
the study of transnational relations”:

Figure 2.03: An Inter-Disciplinary Framework for the Study of Transnational Relations

An inter-disciplinary framework to the study of transnational relations offers a means towards a
rigorous, more systematic, operationalization of the variables driving the relationships under
study, as well as more explicitly identify the sequence of processes that affect the ability of
transnational actors to influence domestic state politics. As has been seen, socio-legal literature
has described the nature of norm formation and interaction as iterative and marked by possible
recursive cycles driving the transformation of conflicting norms into settled ones --- the literature
has identified these cycles as being driven by clear mechanisms. Such insight can offer distinct
advantages to the study of how norms (whether primarily international or national in origin /
nature) can be adopted by transnational actors and then targeted into domestic states (stage 1 of
the framework). Similarly, the historical institutionalist approach, with its emphasis on how
institutions both mediate outcomes and shape preferences (stage 2 of the framework), offers a
clear path towards the study of how specific cases of institutional design can possibly influence
the ability of transnational actors to affect domestic state behavior (stage 3 of the framework), as
well as the development of these processes over time.

STAGE 1

Institutionalization of
Norms

STAGE 2

Institutional Mediation

STAGE 3

Policy Outcome

Transnational Actors

Structural Variation in
Implementing
Organization

Variation in
Implementing Behavior

Legal Recursivity

Indeterminacy

Contradictions

Diagnostic Struggles

Actor Mismatch

30
SUMMARY

This chapter has presented an interdisciplinary framework for the study of transnational
relations that looks to build upon earlier work across the multiple disciplines of international
relations, socio-legal studies, and political science in its quest to study how transnational actors
can affect domestic state behavior. This need for a new model to understand transnational actor
behavior is both timely and necessary. The existing literature on “transnational studies” within
international relations is too vague in describing the factors that affect the ability transnational
actors to affect domestic state behavior. These problems of under-specificity have led to a thin
account of how transnational actors matter and a series of measurement problems due to the
underlying concepts being much too general.

The new framework presented in this chapter builds on the contributions of the existing
literature on “transnational studies” within international relations but then turns to literature in
socio-legal studies and political science in order to rectify problems of under-specification. From
traditional transnational relations scholarship undertaken within the field of international
relations, this inter-disciplinary framework accepts the value in studying how transnational actors
can affect domestic state behavior, and the importance that the scope and extent of international
institutions such as regulations, treaties, and regimes governing specific policy areas have on the
potential success (or lack thereof) of transnational actors in affecting domestic policy change.
From socio-legal scholarship studying the interactions between norms on the international and
national levels, this inter-disciplinary framework accepts that the nature of norm formation and
interaction is iterative. Finally, from historical institutionalist approaches undertaken within the
field of political science, this inter-disciplinary framework accepts that institutions can both
mediate outcomes and shape preferences. Bringing these insights together, this new inter-
disciplinary framework: (1) more explicitly identifies the sequence of the variables that affect the
ability of transnational actors to influence domestic state politics; and (2) provides more detail
and specificity on the process through which this influence is attempted by introducing concrete
concepts (centering on the recursive nature of norm formation and the importance of institutional
structure in influencing outcomes) into the equation.

With a new framework now in place for studying transnational actor behavior and the
sequence of the variables that affect their ability to influence domestic state politics, the
discussion can now be shifted to an analysis of how each stage of the framework will be
measured in relation to the case at the heart of this study --- the attempt of transnational actors to
transform the criminal procedure model in place in the country of Bosnia-Herzegovina (Bosna i
Hercegovina). This transformation, attempted in the years immediately following the devastating
civil conflict of the 1990s that saw the country fall under international oversight, sought to shift
the country’s criminal procedure from a “civil” or inquisitorial model based of the post-
revolutionary French criminal codes, to a more “common” or accusatorial model based on the
English tradition of de-centralized justice. As briefly mentioned in chapter 1, criminal cases in
Bosnia-Herzegovina originating from offenses committed during the 1990s conflict are
prosecuted based on international criminal law. The international criminal doctrines of crimes
against humanity, genocide, and war crimes are part of domestic Bosnian law and directly
applicable. Chapter 3 will test these doctrines of crimes against humanity, genocide, and war
crimes against the presence (or lack thereof) of recursive cycles (stage 1 of the framework). This
31
analysis will set the stage for chapter 4 which will discuss how these doctrines of international
criminal law are applied in three very different domestic Bosnian judicial institutions, each with
a very different institutional design that can possibly play a role in either magnifying or diffusing
transnational actor influence (stage 2 of the framework). Chapter 5 will then conclude with
testing whether legal recursivity and / or institutional design had any bearing on whether
transnational actors were able to change the procedure through which criminal cases in Bosnia-
Herzegovina were adjudicated (stage 3 of the framework).

32

The purpose of this present chapter is, in part, to continue, in greater detail, the discussion
of the socio-legal scholarship surveyed in Chapter 2, specifically Terence Halliday and Bruce
Carruthers’ theory of legal recursivity. As discussed briefly in Chapter 2, legal recursivity holds
that law making and implementation, on both the system and national levels, can act as an
iterative and recursive process.
1
International and national level actors can develop legal norms
that can then be refracted between the two levels (system and national).
2
These norms can then
undergo recursive cycles as formal laws (“the law on the books”) go through cycles of change as
they are interpreted and implemented (“law in practice”), refracting back and forth between the
two levels.
3
One of the key insights generated by legal recursivity is that the inevitability of the
occurrence of these recursive cycles is not a given, nor is it a given that these cycles will
necessarily occur in perpetuity.
4
What is instead forwarded is that these cycles are driven by four
distinct identifiable mechanisms --- these mechanisms then determining whether and when the
recursive cycles operate.
5
When norm-making episodes do occur, they have a beginning (time 1),
when there are competing claims and conflicts, and an end (time 2), when behavior and
expectations have become “routinized, orderly, and predictable” by accepted, and therefore
authoritative, norms. Recursive cycles are what occur between time 1 and time 2.

As highlighted in the previous chapter, this study seeks to apply an inter-disciplinary
framework to the study of transnational relations through studying the ability of international
legal professionals, diplomats, and international governmental agency officials to affect domestic
policy changes in the country of Bosnia-Herzegovina (Bosna i Hercegovina). The specific
domestic policy change under study is the attempted transformation (beginning in 2003) of
Bosnia-Herzegovina’s criminal procedure from a “civil” or inquisitorial model, based on the

1
Terence C. Halliday & Bruce G. Carruthers, The Recursivity of Law: Global Norm Making and National Law
Making in the Globalization of Corporate Insolvency Regimes, 112 AM. J. SOC. 1135, 1135-1138 (2007).

2
Id. at 1146-1148.

3
Id. at 1144, 1146-1147.

4
Terence C. Halliday, Recursivity of Global Normmaking: A Sociolegal Agenda, 5 ANNU. REV. LAW & SOC. SCI.
16.1, 16.12 (2009).

5
As discussed earlier in Chapter 2, these four mechanisms are: (1) the indeterminacy of law (the ambiguities
inherent in statutes, regulations, and court opinions that leads to the possible unintended consequences of their
application, setting off repeated rounds of redrafting and reapplication); (2) contradictions (the phenomenon that
emerges ideologically when clashing visions amongst actors leads to imperfect legal settlements, or institutionally
when legal implementation is divided out between different institutions); (3) diagnostic struggles (the struggle,
between various actors, of diagnosing perceived shortcomings in legal norms and identifying corrective
prescriptions); and (4) actor mismatch. See Halliday & Carruthers, supra note 1, at 1149-1151; Halliday, supra note
4, at 16.15-16.19.
Chapter
LEGAL RECURSIVITY AND
INTERNATIONAL CRIMINAL LAW:
STAGE 1
3
33
post-revolutionary French criminal codes, to a more “common” or accusatorial model, based on
the English tradition of de-centralized justice. The ability (or failure) of transnational actors to
affect domestic policy change in the former Yugoslavia is an important issue --- both from
theoretic and policy-making perspectives. Can transnational actors change the procedure through
which crimes are adjudicated in a targeted state? Also, what are the possible effects of norm-
making episodes and institutional design on such attempts? The answers to these questions may
reveal useful insights into when, and under which conditions, transnational actors are successful
in their attempts to forge deep and lasting policy changes in targeted states. As briefly discussed
in Chapter 1, part of the answer to these questions involves studying the criminal jurisprudence
of three very different domestic Bosnian judicial institutions: the central government’s State-
Court of Bosnia-Herzegovina (Sud Bosne i Hercegovine), and local district courts (okružni
sudovi) in the Republic of Srpska (Republika Srpska) and cantonal courts (kantonalni sudovi) in
the Federation (Federacija Bosne i Hercegovine). All three institutions are empowered to hear
cases of criminal offenses committed in the territory of the former Yugoslavia during the conflict
of the early 1990s, and all three courts are meant to apply (in theory) the same criminal
procedure but, as will be discussed in detail in Chapter 4, the institutional design of the three
courts is very different. The body of law governing the commission of criminal offenses in
armed conflicts has become increasingly institutionalized into what is today known as
international criminal law --- three main doctrinal areas of international criminal law being
crimes against humanity, genocide, and war crimes --- all three of these doctrines also being part
of domestic Bosnian law.

This present chapter seeks to test the three main doctrinal areas of international criminal
law (crimes against humanity, genocide, and war crimes) against the presence (or lack thereof) of
recursive cycles. Were these doctrines subjected to competing claims and conflicts as to their
meanings and application, or rather had they gained the status of accepted, and therefore
authoritative, norms? In other words, were norm-making episodes on-going (thereby indicating
conflicts as to application and meaning), or rather had such episodes settled and come to an end
(indicating acceptance as to application of meaning)? This analysis will be conducted with an eye
towards identifying whether the key mechanisms Halliday and Carruthers identify as driving the
process of legal recursivity
6
are present or not. Such an analysis is vital, for the hypothesis that is
being tested in this study is whether legal recursivity and / or institutional design have any
bearing on whether transnational actors were able to change the procedure through which
criminal cases in Bosnia-Herzegovina were adjudicated. The discussion undertaken in this
chapter will set the stage for the answer to the first part of this puzzle by operationalizing and
measuring the possible existence of on-going versus settled episodes of norm-making in relation
to the three main doctrinal areas of international criminal law. Figure 3.01 below presents a
summary of the findings in this chapter as to the presence (or lack thereof) of recursive cycles
within the three main doctrinal areas of international criminal law:

6
See supra note 5.

34
Figure 3.01: Measuring the Existence of Norm-Making Episodes through Legal Recursivity
(International Criminal Law)

DOCTRINE OF
INTERNATIONAL
CRIMINAL LAW:
CRIMES AGAINST
HUMANITY
GENOCIDE WAR CRIMES
PRESENCE OF
RECURSIVE CYCLES:
Yes No No

I. Legal Recursivity in Context: Setting the Stage

By identifying specific mechanisms that can drive the recursive cycles within norm-
making episodes, legal recursivity is exceptional in offering a true blueprint for examining the
methods through which international and national level norms interact. Legal recursivity
identifies four distinct mechanisms that can possibly drive recursive cycles of norm-making as
formal law goes through cycles of change as it is interpreted and implemented.
7
As discussed
earlier, these mechanisms are: (1) the indeterminacy of law; (2) contradictions; (3) diagnostic
struggles; and (4) actor mismatch.
8
These mechanisms are important because the occurrence of
recursive cycles is not a given, nor will these cycles necessarily occur in perpetuity, rather it is
the identified mechanisms themselves that drive the cycles.
9
Norm-making episodes have a
beginning (time 1), when there are competing claims and conflicts, and an end (time 2), when
behavior and expectations have become “routinized, orderly, and predictable” by accepted, and
therefore authoritative, norms.
10
Recursive cycles are what occur between time 1 and time 2.

Through its detailed description of international and national norm formation and
implementation, and the mechanisms that drive the process, legal recursivity offers a blueprint
for examining the methods through which international and national level norms interact. The
four identified mechanisms that can drive recursive cycles of norm-making accept that different
episodes of norm-making can be driven by different mechanisms. In other words, there is no one
master causal process driving recursive cycles, but rather each situation under study must be
accepted on its own complex terms. By implication, then, any observed causal relationship will
be probabilistic (as opposed to deterministic) in nature, as there can be any number of complex
factors driving the observed causal chain through which norms may move from being disputed
(time 1 of the recursive cycle) to being established (time 2 of the recursive cycle). Does such an
implication question the external validity (i.e. generalizability) of any observed relationships?
Absolutely, but it also places such relationships in a much more realistic context, given the
quasi-experimental nature of social scientific research. In examining each of the four primary
mechanisms that Halliday and Carruthers identify in turn, a clearer picture emerges of the
advantages that such an approach offers in its: (a) systematic approach on a constantly
reoccurring set of dynamics; (b) introduction of hypothesis related to the actors and mechanisms

7
Halliday & Carruthers, supra note 1, at 1144, 1146-1147.

8
Halliday & Carruthers, supra note 1, at 1149-1151; Halliday, supra note 4, at 16.15-16.20.

9
Halliday, supra note 4, at 16.12.

10
Id.

35
that can drive norm-making; (c) identification of beginnings (time 1) and endings (time 2) in
recursive cycles of norm-making; (d) historicism in outlook and taking of contingent changes in
institutions, based on shifts in time, seriously; and (e) approach in encouraging comparisons
across issue areas and levels of analysis.
11

A. Indeterminacy

The first mechanism Halliday and Carruthers identify is “the indeterminacy of law.” The
indeterminacy of law refers to the ambiguities that can be inherent in treaties, statutes,
regulations, and / or court opinions that can then lead to possible unintended consequences in
their application --- the end result of such ambiguity being that it sets off repeated rounds of
redrafting and reapplication.
12
There can be many reasons behind such indeterminacy, but a
primary one is ideological contention between those drafting the “law” in question (be they
legislators, bureaucrats, or judges), which can then result in highly ambiguous wording that all
involved can sign off on.
13
In systems or countries where implementing agencies and courts are
more decentralized and less regulated,
14
the effects of such ambiguity can be magnified
exponentially.
15
Institutional structure aside, “institutional pathologies,” such as ineptitude and
corruption (on the part of officials implementing / interpreting the law), can also magnify the
effects of such legal ambiguity.
16
When legal ambiguity reigns, recursive cycles may flourish as
ambiguous law can open the door to multiple interpretations of meaning.

B. Contradictions

The second set of mechanisms Halliday and Carruthers identify are “contradictions.”
Contradictions refer to the phenomena that emerge ideologically, when clashing visions amongst
actors lead to imperfect legal settlements, or institutionally, when legal implementation is
divided out between different institutions.
17
As with the indeterminacy of law, one of the prime
reasons behind contradictions can be ideological contention between those drafting the “law” in
question.
18
Whereas in legal indeterminacy this contention leads to statutes, regulations, and / or
court opinions that are ambiguous, in situations where contradictions are at play, such

11
Halliday, supra note 4, at 16.7.

12
Halliday & Carruthers, supra note 1, at 1149; Halliday, supra note 4, at 16.19-16.20.

13
Halliday & Carruthers, supra note 1, at 1149.

14
E.g. on the system level, the United Nations with its fragmented quasi-legislature (the General Assembly and
Security Council) and its highly bureaucratized specialist agencies, or on the national level, the United States with
its fragmented federal / state regulatory agencies and court systems.

15
Halliday & Carruthers, supra note 1, at 1149; Halliday, supra note 4, at 16.19.

16
Halliday & Carruthers, supra note 1, at 1149.

17
Halliday & Carruthers, supra note 1, at 1149-1150; Halliday, supra note 4, at 16.18-16.19.

18
Halliday & Carruthers, supra note 1, at 1149-1150; Halliday, supra note 4, at 16.18.

36
contention, instead, leads to partial and unstable temporary solutions that seek to incorporate
fundamentally incompatible viewpoints.
19
Ideological contention aside, contradictions can also
result from more institutional factors such as the bifurcation of implementation (for whatever
policy in question) between rival institutions, or competition between different sets of actors for
ascendancy in propagation / enforcement in a certain issue area.
20
The inherently contradictory
nature of such legal settlements, be they ideologically or institutionally generated, can set the
stage for recursive cycles as the imperfect legal regimes begin to collapse and unravel.

C. Diagnostic Struggles

The third set of mechanisms Halliday and Carruthers identify are “diagnostic struggles.”
Diagnostic struggles refer to the struggle (between various actors) of diagnosing perceived
shortcomings in legal norms and identifying corrective prescriptions.
21
How a perceived legal
problem is defined will determine the set of prescriptive “solutions” that are available to “solve”
it.
22
Diagnosis, then, is very important because it will both outline which solutions are available,
and set the agenda of how those solutions are analyzed and applied to the problem at hand.
23
If
there are multiple sets of actors forwarding multiple / conflicting diagnoses (as can often be the
case with complex legal issues), then the actors whose diagnosis is ultimately selected will
usually be in prime position to control the implementation of the determined solution.
24

Competing diagnoses, then, can drive recursive cycles because until the competition is
concluded, there will be various determinations of the exact prescription(s) that should be on
offer.
25

D. Actor Mismatch

The fourth and final mechanism Halliday and Carruthers identify is “actor mismatch.”
Actor mismatch occurs when there is a disparity between actors who actually participate in the
norm-making process in a particular issue area, and those who the norms actually affect --- in
other words, actors who are directly affected by the implementation of new norms are not

19
E.g. on the system level, promoting bans on female genital mutilation whilst at the same time professing respect
for ethnic / geographic cultural practices, or on the national level, promoting external trade through the lowering of
tariff barriers but at the same time seeking to protect local manufacturers.

20
Halliday & Carruthers, supra note 1, at 1150; Halliday, supra note 4, at 16.18.

21
Halliday & Carruthers, supra note 1, at 1150-1151; Halliday, supra note 4, at 16.16-16.17.

22
Halliday & Carruthers, supra note 1, at 1150-1151; Halliday, supra note 4, at 16.16.

23
Halliday & Carruthers, supra note 1, at 1151; Halliday, supra note 4, at 16.17.

24
E.g. how is the issue of systematic rape to be diagnosed in international criminal law --- is the systematic rape a
stand-alone international crime against civilians, or should it be folded into the offense of genocide? The diagnosis
that is ultimately chosen puts those actors advocating it in a prime position to control the agenda of setting and
implementing solutions.

25
Halliday & Carruthers, supra note 1, at 1151.

37
participants in its creation.
26
Mismatch matters because, if affected actors are not included in the
creation of new norms, they can very often be inclined to frustrate or block implementation,
either for reasons of pure ignorance (as to the precise nature of the new norms in question) or, on
the other end of the spectrum, for purely strategic reasons (in that the new norms in question go
against their interests in some way).
27
Mismatch can drive recursive cycles because norms which
fail to inform or take into account the interests and experiences of those they affect can be
unstable in the regimes they attempt to construct.
28

Figure 3.02 below presents a simplified description and analysis of the four distinct
mechanisms that can possibly drive recursive cycles of norm-making:

Figure 3.02: Legal Recursivity and the Mechanisms that Drive It

MECHANISM: LEGAL
INDETERMINACY
CONTRADICTIONS DIAGNOSTIC
STRUGGLES
ACTOR
MISMATCH
DEFINITION: Refers to the
ambiguities that can be
inherent in statutes,
regulations, and / or
court opinions that can
then lead to unintended
consequences in their
application
The phenomena that
emerge ideologically
when clashing visions
amongst actors lead to
imperfect legal
settlements, or
institutionally when
legal implementation is
divided out between
different institutions
The struggle between
various actors in terms
of diagnosing
perceived
shortcomings in legal
norms and identifying
corrective prescriptions
Occurs when there is a
disparity between
actors who actually
participate in the norm-
making process in a
particular issue area,
and those who the
norms actually affect
CAUSES: • Ideological
contention between
those drafting the
“law” in question
can result in highly
ambiguous wording
that all involved
can sign off on
• Can be magnified
by “institutional
pathologies” (e.g.
ineptitude and
corruption)
• Ideological
contention between
those drafting the
“law” in question
can lead to partial
and unstable
temporary solutions
that seek to
incorporate
fundamentally
incompatible
viewpoints
• Can also result from
more institutional
factors such as the
bifurcation of
implementation
between rival
institutions, or
competition
between different
sets of actors for
ascendancy in
propagation /
• How a perceived
legal problem is
defined will
determine the set of
prescriptive
“solutions” that are
available to “solve”
it --- diagnosis, then,
will both outline
which solutions are
available and set the
agenda of how those
solutions are
analyzed and
applied to the
problem at hand
• If there are multiple
sets of actors
forwarding multiple
/ conflicting
diagnoses, then the
actors whose
diagnosis is
ultimately selected
• Mismatch matters
because, if affected
actors are not
included in the
creation of new
norms, they can
very often be
inclined to frustrate
or block
implementation
• Mismatched actors
undertake to block
implementation
either for reasons
of pure ignorance
(as to the precise
nature of the new
norms in question),
or for purely
strategic reasons (in
that the new norms
in question go
against their
interests in some

26
Id. at 1152.

27
Halliday & Carruthers, supra note 1, at 1152; Halliday, supra note 4, at 16.15.

28
Halliday & Carruthers, supra note 1, at 1152.

38
enforcement in a
certain issue area
will be in prime
position to control
the implementation
of the determined
solution
way)
EFFECTS IN
DRIVING
RECURSIVE
CYCLES OF
NORM-MAKING:
When legal ambiguity
reigns, recursive cycles
may flourish, as
ambiguous law can
open the door to
multiple interpretations
of meaning
Contradictory legal
settlements, be they
ideologically or
institutionally
generated, can set the
stage for recursive
cycles as the imperfect
legal regimes begin to
collapse and unravel
Competing diagnoses
can drive recursive
cycles because, until
the competition is
concluded, there will
be various
determinations of the
exact prescription(s)
that should be on offer
Mismatch can drive
recursive cycles
because norms which
fail to inform or take
into account the
interests and
experiences of those
they affect can be
unstable in the regimes
they attempt to
construct

II. International Criminal Law and Recursive Cycles: Operationalizing the
Independent Variable

International law has traditionally come in two primary forms --- law deriving from
custom (customary international law) and law deriving from international treaties or conventions
(conventional international law).
29
Customary international law traditionally found its source in
the widespread consistent practice of states, coupled with the belief (on the part of the acting
state) that they were acting out of a sense of legal obligation or opinio juris.
30
If enough states
acted in a consistent manner, through a sense of legal obligation, for a long enough period of
time, a new customary international norm was said to have been created.
31

29
International law has not been without its critics, especially amongst the classical and neorealist schools in
international relations theory, which argue that the international system is structured through the distribution of
power and capabilities amongst its member states, and that consequentially “international law” is wholly
epiphenomenal. This being said, it would be incorrect to classify the entire field of international relations theory as
hostile to international law, as there are a number of schools within it (most notably the English school and social
constructivism) that accept international law as a valid phenomenon. For discussions of these debates (and possible
reconciliations) between international law and international relations, see Anne-Marie Slaughter Burley,
International Law and International Relations Theory: A Dual Agenda, 87 AM. J. INT. LAW 205 (1993); MICHAEL
BYERS, CUSTOM, POWER AND THE POWER OF RULES: INTERNATIONAL RELATIONS AND CUSTOMARY INTERNATIONAL
LAW (Cambridge University Press 2004); Thomas J. Biersteker, Peter J. Spiro, Chandra Lekha Sriram, & Veronica
Raffo, International Law and International Politics: Old Divides, New Developments, in INTERNATIONAL LAW AND
INTERNATIONAL RELATIONS: BRIDGING THEORY AND PRACTICE (Thomas J. Biersteker, Peter J. Spiro, Chandra
Lekha Sriram, & Veronica Raffo eds., 2007); Jeffrey L. Dunoff & Mark A. Pollack, International Law and
International Relations: Introducing an Interdisciplinary Dialogue, in INTERDISCIPLINARY PERSPECTIVES ON
INTERNATIONAL LAW AND INTERNATIONAL RELATIONS (Jeffrey L. Dunoff & Mark A. Pollack eds., 2013).

30
PETER MALANCZUK, AKEHURST’S MODERN INTRODUCTION TO INTERNATIONAL LAW 44 (7th ed. 1997); ANTHONY
AUST, HANDBOOK OF INTERNATIONAL LAW 6-7 (Cambridge University Press 2005); Restatement (Third) of The
Foreign Relations Law of the United States § 102(2) (1987).

31
Traditionally accepted evidence of state practice and opinio juris has been taken to include domestic diplomatic
correspondence and statements, domestic governmental reports and statements, domestic legislation, and domestic
judicial decisions. See MALANCZUK, supra note 30, at 39-40; IAN BROWNLIE, PRINCIPLES OF PUBLIC
INTERNATIONAL LAW 6-7 (7th ed. 2008).
39
Customary international law is said to depend upon the consent of nation states --- and is
thus, at least in the traditional understanding discussed here, very state-centric.
32
As such, if a
nation state does not wish to be bound by a new rule of customary international law, then it can,
in theory, vocally object and announce that it does not view itself as bound.
33
This objection
must be consistently reiterated, lest it be lost.
34
This being said, it is, however, important to
mention that there are certain rules of customary international law considered so vital, that they
cannot be contracted out by individual states --- such peremptory rules are labeled jus cogens
norms.
35
Opinio juris plays a key role in elevating regular customary international norms into jus
cogens norms, for only when the majority of states in the international system believe that a
regular customary international norm cannot be persistently objected to, or contracted out of,
does this regular norm achieve elevation to jus cogens.
36

Conventional international law traditionally found its source in “international
conventions, whether general or particular, establishing rules expressly recognized by the
contesting states.”
37
Bilateral treaties were seen as creating obligations specific to the two states
that signed them. Usually, such treaties or conventions, if only entered into between two states,
were binding on the two states in question, but were not generally a source of international law.
Multilateral treaties, on the other hand, can transform into sources of customary international
law, binding on all states in the international system (whether they are parties to the particular
treaty or not), if a large enough portion of non-signatory states in the international system adhere
to their provisions out of a sense of legal obligation (i.e. opinio juris).

The last hundred years have seen tremendous structural and institutional change in
international law and the international system described above. Starting with the Hague Peace
Conferences of 1899 and 1907, continuing on throughout the Allied trials before the
International Military Tribunals in Nuremberg (IMT), the Geneva Conventions of 1949, and
culminating with the explosion in the 1990s of ad-hoc
38
and permanent
39
international criminal

32
I.e. if a rule of customary international law is emerging and a nation state remains silent, then this can be seen as
giving implicit consent that the nation state will be bound by the new customary rule. See Restatement, supra note
30, at § 102 comment d.

33
See Fisheries Case (U.K. v. Nor.), 1951 I.C.J. 116 (Dec. 18, 1951).

34
MALANCZUK, supra note 30, at 46-48.

35
Vienna Convention on the Law of Treaties, May 23, 1969, 155 U.N.T.S. 331, arts. 53, 64, 71; DAVID J.
BEDERMAN, INTERNATIONAL LAW FRAMEWORKS 23 (1st ed. 2001).

36
ROSALYN HIGGINS, PROBLEMS AND PROCESSES: INTERNATIONAL LAW AND HOW WE USE IT 22 (Clarendon Press
1995).

37
Statute of the International Court of Justice, June 26, 1945, 59 Stat. 1055, art. 38(1)(a).

38
In 1993 and 1994, the UN established the International Criminal Tribunals for the Former Yugoslavia (ICTY) and
Rwanda (ICTR) respectively in order to judge serious breaches of international law committed in the conflicts
taking place in these regions. See S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (May
25, 1993) (Establishing the ICTY under the Security Council’s Chapter VII powers, and determining that ethnic
cleansing in the former Yugoslavia constituted a threat to international peace and security.); S.C. Res. 955, U.N.
40
tribunals, the body of law governing the commission of criminal offenses in conflicts has
separated out of traditional international law and become increasingly institutionalized into what
is today known as international criminal law.
40
No longer solely dependent on either custom or
treaty, international criminal law has increasingly begun to develop, at least in part, through the
jurisprudence of the ad-hoc and permanent international criminal tribunals.
41
As this body of law
has grown and developed, three main doctrinal areas have emerged governing the commission of
criminal offenses in conflicts --- these three categories being crimes against humanity, genocide,
and war crimes. A key question at the heart of this study is the presence (or lack thereof) of
recursive cycles within these categories of offenses. Are these doctrines currently subject of
competing claims and conflicts as to their meaning and application, or is it rather that they have
gained the status of accepted, and therefore authoritative, norms? In other words, are norm-
making episodes on-going (thereby indicating conflicts as to application and meaning), or is it
rather that such episodes have settled and come to an end (indicating acceptance as to application
of meaning)? As Terence Halliday and Bruce Carruthers have made clear, the inevitability of the
occurrence of these recursive cycles is not a given, nor is it a given that these cycles will
necessarily occur in perpetuity; rather these cycles are driven by four distinct identifiable
mechanisms: (1) the indeterminacy of law; (2) contradictions; (3) diagnostic struggles; and (4)
actor mismatch. It is these mechanisms that determine whether and when recursive cycles
operate and therefore it will be the presence (or lack thereof) of these mechanisms that will be
tested for.

A. Crimes Against Humanity

The emergence of “crimes against humanity” as a specific international offense has been
fairly recent, starting only in the beginning of the 20th century and developing in earnest in the
years immediately following the end of the Second World War. This initial burst of activity
would soon come to an end, ushering in a nearly forty year freeze in the doctrinal development
of crimes against humanity, that expired only in the early 1990s, with the establishment of the ad
hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) by
the UN Security Council, and later related emergence (by treaty) of a permanent International
Criminal Court (ICC). It would be these, more recent, developments that would contribute to

SCOR, 49th Sess., 3453rd mtg., U.N. Doc. S/RES/955 (Nov. 8, 1994) (Establishing the ICTR under the Security
Council’s Chapter VII powers, and determining that genocide and other human rights abuses in Rwanda constituted
a threat to international peace and security).

39
In 1998 an international treaty was adopted establishing a permanent International Criminal Court (ICC) to judge
serious breaches of international criminal law. See Rome Statute of the International Criminal Court, July 17, 1998,
2187 U.N.T.S. 90.

40
See Roozbeh (Rudy) B. Baker, Customary International Law in the 21st Century: Old Challenges and New
Debates, 21 EUR. J. INT’L L. 173 (2010) (Where the author analyzes how the recent development of ad-hoc and
permanent international criminal tribunals has sparked the process through which international criminal law has
evolved its own sources of authority outside of those traditionally found in international law --- i.e. custom and
treaty.).

41
Id.

41
crimes against humanity’s status as a doctrine of international criminal law under constant
refinement and interpretation.

1. Overview

The origin of “crimes against humanity” as a specific international crime can be first
traced to the Hague Peace Conferences of 1899 and 1907. Both of these international
conferences had been proposed by the great powers of the day
42
to negotiate the conduct of
nations in war. Both conferences resulted in a set of international treaties / conventions (i.e. the
Hague Conventions)
43
that served as one of the first international attempts
44
to codify what
behavior was acceptable / unacceptable by nations during warfare. The preambles to both the
1899 Hague Convention II and 1907 Hague Convention IV contained language (known as the
Martens Clause) that sought to protect civilians from violations of what were deemed the “laws
of humanity.”
45
Such protection for civilians was innovative (at the time) because it sought to set
a threshold or standard of care that was specifically independent of the purview of nation states
acting individually --- a threshold to be used to judge a state for actions taken against its own
citizens.
46
The first opportunity to judge a nation state as guilty of “crimes against humanity”
came in the wake of the First World War in 1915 when the Allied Powers (Britain, France, and
Russia) issued a joint declaration condemning the forced removal and widespread massacre of
over one million Christian Armenians by the forces of the Ottoman Turkish Empire (a member
of the Central Powers alliance opposing the Allied Powers) as “crimes … against humanity and
civilization.”
47
In 1919, with the conclusion of the First World War, the now victorious Allied
Powers established a Commission
48
to explore the actions of the defeated Central Powers during
the conflict. The Commission recommended that a tribunal be established to judge all members

42
The main participants of the two conferences were the United States, Britain, France, Germany, Russia, and
China.

43
The Hague Conference of 1899 resulted in three international treaties, while the Conference of 1907 resulted in
thirteen.

44
One of the first domestic attempts to codify such behavior had been during the Civil War in the United States
(1861-1865) when President Abraham Lincoln issued the Lieber Code (also known as the Instructions for the
Government of Armies of the United States in the Field, General Order No. 100) which set out to regulate the
actions of the United States (Union) Army during the conflict.

45
1899 Hague Convention No. II with Respect to the Laws and Customs of Warfare on Land, July 29, 1899, 32 Stat.
1803, preamblar; 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, Oct. 8, 1907,
36 Stat. 2277, preamblar.

46
GIDEON BOAS, JAMES L. BISCHOFF, & NATALIE L. REID, ELEMENTS OF CRIMES UNDER INTERNATIONAL LAW 19-
21 (Cambridge University Press 2008).

47
Egon Schwelb, Crimes Against Humanity, 23 BRIT. Y.B. INT’L L. 178, 181 (1946); ROBERT CRYER, HÅKAN
FRIMAN, DARRYL ROBINSON, & ELIZABETH WILMSHURST, AN INTRODUCTION TO INTERNATIONAL CRIMINAL LAW
AND PROCEDURE 187-188 (Cambridge University Press 2007); BOAS, BISCHOFF, & REID, supra note 46, at 20; ILIAS
BANTEKAS, INTERNATIONAL CRIMINAL LAW 185 (Hart Publishing 2010).

48
The full name of the commission was the Commission on the Responsibility of the Authors of the War and
Enforcement of Penalties.

42
of the defeated Central Powers judged to have violated the “laws of humanity.”
49
“Laws of
humanity” were defined broadly by the Allied Powers as offenses that the Central Powers had
committed against their own citizens.
50
Ultimately, the Commission’s recommendation to
establish a tribunal was rejected, with the main country leading the charge being the United
States,
51
which argued that the standards for judging violations of the “laws of humanity” were
uncertain and unclear.
52

Although the United States had been opposed to establishing a tribunal to judge
violations of the “laws of humanity” in the wake of the First World War, its attitude would
change radically at the close of the Second World War in 1945. It was at this point that the
United States, as one of the leading members of the Allied Powers (consisting mainly of the
United States, Britain, France, and the Soviet Union) that had defeated Nazi Germany, became
one of the key advocates for the establishment of an international tribunal to try members of the
defeated Nazi regime for, amongst other things, offenses against its own citizens. The tribunal
that was initially established, the International Military Tribunal (IMT) set in Nuremberg to try
leading Nazi officials, did much to contribute to the development of crimes against humanity as a
specific international offense. Article 6(c) of the IMT Charter defined crimes against humanity as
“murder, extermination, enslavement, deportation, and other inhumane acts … or persecutions
on political, racial or religious grounds” committed against a civilian population in the context of
an armed conflict.
53
The importance of Article 6(c) lay in the fact that it “was the first
international instrument to define crimes against humanity as a positive crime punishable under
international law.”
54
As such, the IMT Charter set the trajectory of the doctrinal development of
crimes against humanity as a specific international offense. The importance of the IMT Charter
would remain in the decades following the Second World War as Article 6(c); in the absence of
any other major international treaty or convention defining the parameters of crimes against
humanity, it would remain one of the main defining guides to this developing international
criminal offense.

Building on the aftermath of the IMT Charter and the trial of leading Nazi leaders, in
1947 the United Nations (UN) established the International Law Commission (ILC) in order to,

49
Report Presented to the Preliminary Peace Conference, Commission on the Responsibility of the Authors of the
War and on Enforcement of Penalties, Mar. 29 1919, reprinted in 14 AM. J. INT. LAW 95 (1920).

50
Id. at 121-123.

51
The United States had entered the First World War on the side of the Allied Powers in 1917.

52
Memorandum of Reservations presented by the Representatives of the United States to the Report of the
Commission on Responsibilities, Apr. 4, 1919, reprinted in General Records of the American Commission to
Negotiate Peace 1918-1931, PPC Doc. F.W.181.12302/7.

53
See Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, art 6(c).

54
BOAS, BISCHOFF, & REID, supra note 46, at 20. See also William J. Fenrick, Should Crimes Against Humanity
Replace War Crimes?, 37 COLUM. J. TRANSNAT'L L. 767, 769 (1999); Mohamed Elewa Badar, From the Nuremberg
Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity, 5 SAN DIEGO INT’L L.J. 73, 80-83
(2004).

43
in part, bring together and codify international law --- including the then developing offense of
crimes against humanity.
55
In Article 2(11) of the first Draft Code of Crimes Against the Peace
and Security of Mankind that the ILC published in 1954, the language of Article 6(c) of the IMT
Charter defining crimes against humanity as “murder, extermination, enslavement, deportation,
and other inhumane acts … or persecutions on political, racial or religious grounds” was kept,
56

but the armed conflict requirement was modified and replaced with a requirement that crimes be
committed under the “instigation or toleration” of state authorities.
57
After 1954, the doctrinal
development of crimes against humanity on the international level slowed down to a virtual
standstill,
58
with much of this paralysis attributable to the fact that the ILC took nearly forty
years to debate and come up with a final Draft Code in 1996.
59
Indeed, the 1996 Draft Code
itself relied heavily on another set of international developments that had occurred several years
earlier in 1993 and 1994, the establishment of the ad hoc International Criminal Tribunals for the
former Yugoslavia (ICTY) and Rwanda (ICTR).
60

The nearly forty year freeze in the doctrinal development of crimes against humanity
came to an end in the early 1990s with the establishment of the ICTY and ICTR by the UN
Security Council, in order to judge serious breaches of international law committed in the
conflicts taking place in the former Yugoslavia
61
and Rwanda,
62
and the related promulgation of
a final ILC Draft Code of Crimes Against the Peace and Security of Mankind in 1996.
63
While

55
See G.A. Res. 174, U.N. GAOR, 2nd Sess., 42nd mtg., U.N. Doc. A/RES/174(II) (Nov. 21, 1947).

56
The text of the 1954 ILC Draft Code specifically read “The following acts are offenses against the peace and
security of mankind: … Inhuman acts such as murder, extermination, enslavement, deportation or persecutions,
committed against any civilian population on social, political, racial, religious or cultural grounds [.]” See Draft
Code of Offenses Against the Peace and Security of Mankind, U.N. Doc. A/2963 (1954), art. 2(11).

57
Draft Code of Offenses Against the Peace and Security of Mankind (1954), supra note 56, at art. 2(11). Some
scholars have been highly critical of the 1954 ILC Draft Code as neither fully following the IMT Charter in its
modification of the armed conflict requirement nor fully breaking with it either. See e.g. M. CHERIF BASSIOUNI,
CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 185 (Kluwer Law International 1999) (Where the
author describes the 1954 ILC Draft Code as “generic” and riddled with “gaps and insufficiencies.”).

58
BOAS, BISCHOFF, & REID, supra note 46, at 28-29. Though note that during this period there were a number of
national level trials for crimes against humanity. See M. Cherif Bassiouni, Crimes Against Humanity, in
INTERNATIONAL CRIMINAL LAW, VOL.1: CRIMES 584-586 (M. Cherif Bassiouni ed., 2nd ed. 1999) (Where the
author provides a brief discussion of these national prosecutions.).

59
BOAS, BISCHOFF, & REID, supra note 46, at 28-29. Compare this state of events to the parallel doctrinal
development of genocide as an international criminal offense which was subject to both a widely ratified
international convention and expansive jurisprudential development in the International Court of Justice (ICJ). See
infra § II(B)(1).

60
See BOAS, BISCHOFF, & REID, supra note 46, at 29-30 (“[T]he 1996 Draft Code’s definition of crimes against
humanity resembles that of the ad hoc Tribunals as developed in their jurisprudence --- most notably in that the
punishable conduct must be committed, as the ILC draft puts it, ‘in a systematic manner or on a large scale.’”).

61
See S.C. Res. 827, supra note 38.

62
S.C. Res. 955, supra note 38.

63
See Draft Code of Offenses Against the Peace and Security of Mankind, U.N. Doc. A/51/10 (1996).
44
the ICTY and ICTR were not tasked with “making” international criminal law,
64
but rather only
with applying it, it was inevitable that their establishment would have a deep effect on the
development of certain international offenses, especially those such as crimes against humanity
that were not very well defined at the time.
65

The ICTY Statute which came out in 1993, following in the footsteps of Article 6(c) of
the IMT Charter, required that any listed crimes against humanity be committed in the context of
an armed conflict.
66
This armed conflict requirement, whilst keeping with Article 6(c) of the
IMT Charter, went against the post-IMT Charter trials of lesser Nazi officials that had been
conducted by the Allied Powers outside of the IMT Charter regime under Control Council Law
No. 10 (where no armed conflict requirement had been present),
67
and against the 1954 ILC
Draft Code of Crimes Against the Peace and Security of Mankind which, as mentioned earlier,
had replaced the armed conflict requirement of the IMT Charter with a requirement that crimes

64
See Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. Doc.
S/25704 (1993), para. 29 (Where the UN Secretary General states the following in regards to the establishment of
the ICTY: “the Security Council would not be creating or purporting to ‘legislate’ the law. Rather, the International
Tribunal would have the task of applying existing international … law.”).

65
BOAS, BISCHOFF, & REID, supra note 46, at 26-31; BANTEKAS, supra note 47, at 188-189; Baker, supra note 40, at
185. See also Theodor Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AM. J. INT.
LAW 78 (1994); William J. Fenrick, The Development of the Law of Armed Conflict through the Jurisprudence of
the International Criminal Tribunal for the former Yugoslavia, 3 J. CONFLICT & SEC. L. 197 (1998); Christopher
Greenwood, The Development of International Humanitarian Law by the International Criminal Tribunal for the
former Yugoslavia, in MAX PLANCK YEARBOOK OF UNITED NATIONS LAW, VOL. II (Jochen A. Frowein & Rüdiger
Wolfrum eds., 1998); Mark A. Drumbl, Looking Up, Down and Across: The ICTY’s Place in the International Legal
Order, 37 NEW ENG. L. REV. 1037 (2003); William Schabas, Customary Law or “Judge-Made” Law: Judicial
Creativity at the UN Criminal Tribunals, in THE LEGAL REGIME OF THE INTERNATIONAL CRIMINAL COURT: ESSAYS
IN HONOUR OF PROFESSOR IGOR BLISHCHENKO (José Doria, Hans-Peter Gasser, & M. Cherif Bassiouni eds., 2009);
Volker Nerlich, The Status of ICTY and ICTR Precedent in Proceedings Before the ICC, in THE EMERGING
PRACTICE OF THE INTERNATIONAL CRIMINAL COURT (Carsten Stahn & Göran Sluiter eds., 2009); Michael P. Scharf
& Margaux Day, The ad hoc International Criminal Tribunals: Launching a New Era of Accountability, in
ROUTLEDGE HANDBOOK OF INTERNATIONAL CRIMINAL LAW (William A. Schabas & Nadia Bernaz eds., 2011).

66
Statute for the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827, U.N. SCOR 48th Sess.,
3217th mtg., U.N. Doc. S/RES/827 (May 25, 1993), art. 5.

67
The trial of lesser Nazi officials (i.e. outside of the main civilian and military leadership) was conducted by the
Allied Powers outside of the IMT Charter regime under Control Council Law No. 10 (which provided for trials by
military tribunal of the individual Allied Powers). It should be noted, however, that although Control Council Law
No. 10 did not contain the requirement that crimes against humanity be committed in the context of an armed
conflict, the majority of jurisprudence of the trials held under Control Council Law No. 10 still required the link. See
e.g. United States v. Karl Brandt, Becker-Freyseng, Beiglböck, Blome, Brack, Rudolf Brandt, Fischer, Gebhardt,
Genzken, Handloser, Hoven, Mrugowsky, Oberheuser, Pokorny, Poppendick, Rombert, Rose, Rostick, Ruff, Schäfer,
Schröder, Sievers, and Weltz, II Trials of War Criminals Before the Nuremberg Military Tribunals Under Control
Council Law No. 10, 181 (1950) [hereinafter Medical Case]; United States v. Friedrich Flick, VI Trials of War
Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, 1187 (1950) [hereinafter
Flick Case]; United States v. Weizsäcker, Steengracht von Moyland, Keppler, Bohle. Wörmann, Ritter, von
Erdmannsdorf, Veesenmayer, Lammers, Stuckart, Darré, Meissner, Dietrich, Berger, Schellenberg, von Krosigk,
Puhl, Raschke, Kömer, Pleiger, and Kehrl, XIV Trials of War Criminals Before the Nuremberg Military Tribunals
Under Control Council Law No. 10, 322 (1950) [hereinafter Ministries Case].

45
need only be committed under the “instigation or toleration” of state authorities.
68
The ICTR
Statute, which came out one year after its ICTY counterpart, took the approach of Control
Council Law No. 10 and the 1954 ILC Draft Code, by not requiring that the listed crimes against
humanity be committed in the context of an armed conflict --- the ICTR Statute instead required
that the listed crime against humanity need only be committed “on national, political, ethnic,
racial or religious grounds.”
69
The 1996 ILC Draft Code mirrored the ICTR approach also by not
containing an armed conflict requirement, but only required that listed crimes against humanity
be committed under the instigation of state authorities
70
--- there was no requirement for such
crimes to be committed “on national, political, ethnic, racial or religious grounds” as there had
been in the ICTR Statute.

Though they differed on whether an armed conflict was necessary element for the
commission of a crime against humanity, both the ICTY and ICTR Statutes took identical
approaches in defining crimes against humanity as consisting of the following acts (first
enumerated in Article 6(c) of the IMT Charter and Article 2(11) of the 1954 ILC Draft Code):
murder, extermination, enslavement, deportation, persecutions on political, racial and religious
grounds, and other inhumane acts.
71
To this existing list, the ICTY and ICTR Statutes also then
added the additional acts of: imprisonment, torture, and rape.
72
The 1996 ILC Draft Code closely
followed this approach, but expanded the definitions of rape and other inhumane acts, and then
added the additional acts of: institutionalized discrimination and the forced disappearance of
persons.
73
Contributions from their Statutes aside, ICTY and ICTR also contributed to the
doctrinal development of crimes against humanity through their extensive jurisprudence.
74
This
jurisprudence established the general requirements for a listed act to qualify as a crime against
humanity,
75
and provided detailed guidance of the required mental (mens rea) and physical

68
Draft Code of Offenses Against the Peace and Security of Mankind (1954), supra note 56, at art. 2(11).

69
Statute for the International Criminal Tribunal for Rwanda, S.C. Res. 955, U.N. SCOR 49th Sess., 3453d mtg.,
U.N. Doc. S/RES/955 (Nov. 8, 1994), art. 3. The ICTR Statute also required that a listed crime against humanity be
committed “as part of a widespread or systematic attack.” Although the ICTY Statute originally did not contain this
additional provision, it was later incorporated into the Statute through case-law. See Prosecutor v. Kunarac et al.,
Case No. IT-96-23 & IT-96-23/1-A, ICTY Appeals Chamber Judgment, para. 85 (Jun. 12, 2002).

70
Draft Code of Offenses Against the Peace and Security of Mankind (1996), supra note 63, at art. 18.

71
Statute for the International Criminal Tribunal for the former Yugoslavia, supra note 66, at art. 5; Statute for the
International Criminal Tribunal for Rwanda, supra note 69, at art. 3.

72
Statute for the International Criminal Tribunal for the former Yugoslavia, supra note 66, at art. 5; Statute for the
International Criminal Tribunal for Rwanda, supra note 69, at art. 3.

73
Draft Code of Offenses Against the Peace and Security of Mankind (1996), supra note 63, at art. 18.

74
See supra text accompanying notes 64-65.

75
See Kunarac et al., Case No. IT-96-23 & IT-96-23/1-A, at para. 85 (Where the ICTY Appeals Chamber listed the
following elements that had to be present for a listed act under Article 3 of the ICTY Statute to qualify as a crime
against humanity: an attack, perpetrator(s) must be part of the attack, attack must be directed against a civilian
population, attack must be widespread or systematic, and perpetrator(s) must be aware that there is a pattern of
widespread or systematic attacks against the particular civilian population and intend for their attack to fit into this
pattern.).
46
(actus reus) elements
76
each act requires.
77
The experiences and lessons learned from the work
of the ICTY and ICTR would directly affect how crimes against humanity would be defined in
the Rome Statute of the International Criminal Court (ICC) in 1998 which contains, to date, the
most recent international iteration on crimes against humanity as an international offense.
78

The Rome Statute’s approach to defining crimes against humanity would differ in several
key points from the ICTY and ICTR approaches. Indeed, an analysis of the debates and disputes
during the drafting of Article 7 of the Rome Statute (governing crimes against humanity) reveals
a complex picture. Finalized during the “Rome Conference” held from June 15 to July 17 1998,
which brought together representatives from over 160 countries and around 200 NGOs in order
to participate in the drafting of the Statute, Article 7 would set the ICC’s mandate over crimes
against humanity and end up being the subject of intensive debate amongst the delegates.

Whether to include an armed conflict requirement (as contained in the ICTY Statute, but
absent from the ICTR Statute and 1996 ILC Draft Code) for crimes against humanity in Article
7, was a key debating point amongst the delegates to the Rome Conference.
79
Ultimately, the
requirement was dropped from Article 7 (placing it more in line with the treatment of crimes
against humanity in the ICTR Statute and 1996 ILC Draft Code). The prevailing side was of the
opinion that customary international law
80
no longer required that crimes against humanity be

76
Under both “civil” or inquisitorial legal systems and “common” or accusatorial ones, all crimes, at their base,
require two elements: (1) the mental guilty mind or mens rea; and (2) the physical guilty act or actus reus. See e.g.
GASTON STEFANI & GEORGES LEVASSEUR, DROIT PÉNAL GÉNÉRAL ET PROCÉDURE PÉNALE 226-228. (1st ed. 1964);
JEAN PRADEL, MANUEL DE DROIT PÉNAL GÉNÉRAL 436-438. (9th ed. 1994); ZORAN STOJANOVIĆ, KRIVIČNO PRAVO,
OPŠTI DEO 111-117, 162-164 (1st ed. 2000); RICHARD CARD, CRIMINAL LAW § 3.1 (15th ed. 2001); DON STUART,
CANADIAN CRIMINAL LAW 79-80, 153-156 (4th ed. 2001); WAYNE R. LAFAVE, CRIMINAL LAW §§ 5.1, 6.1 (3rd ed.
2010).

77
See e.g. Prosecutor v. Delalić et al. [Čelebići], Case No. IT-96-21-T, ICTY Trial Chamber Judgment, para. 439
(Nov. 16, 1998) (Discussing some of the elements required for the act of murder to qualify as a crime against
humanity.); Prosecutor v. Vasiljević, Case No. IT-98-32-T, ICTY Trial Chamber Judgment, paras. 227-229 (Nov.
29, 2002) (Discussing some of the elements required for the act of extermination to qualify as a crime against
humanity.); Prosecutor v. Krnojelac, Case No. IT-97-25-T, ICTY Trial Chamber Judgment, para. 350 (Mar. 25,
2002) (Discussing some of the elements required for the act of enslavement to qualify as a crime against humanity.);
Prosecutor v. Stakić, IT-97-24-A, ICTY Appeals Chamber Judgment, para. 278 (Mar. 22, 2006) (Discussing some
of the elements required for the act of deportation to qualify as a crime against humanity.); Prosecutor v. Kordić &
Čerkez, IT-95-14/2-T, ICTY Trial Chamber Judgment, paras. 302-303 (Feb. 26, 2001) (Discussing some of the
elements required for the act of imprisonment to qualify as a crime against humanity.); Prosecutor v. Kunarac et al.,
Case No. IT-96-23 & IT-96-23/1-T, ICTY Trial Chamber Judgment, para. 495 (Feb. 22, 2001) (Discussing some of
the elements required for the act of torture to qualify as a crime against humanity.); Prosecutor v. Blaškić, IT-95-14-
A, ICTY Appeals Chamber Judgment, para. 131 (Jul. 29, 2004) (Discussing some of the elements required for the
act of persecution to qualify as a crime against humanity.); Prosecutor v. Kordić & Čerkez, IT-95-14/2-A, ICTY
Appeals Chamber Judgment, para. 117 (Dec. 17, 2004) (Discussing some of the elements required for other
inhumane acts to qualify as a crime against humanity.).

78
See supra note 39.

79
BOAS, BISCHOFF, & REID, supra note 46, at 105-106.

80
See supra § II for a discussion and explanation of the traditionally held sources of customary international law: state
practice and opinio juris.
47
committed in the context of an armed conflict, and that the inclusion of such a requirement could
create “an unnecessary burden for prosecutions.”
81
Though the view that crimes against
humanity no longer required a nexus to an armed conflict prevailed at the Rome Conference,
there was a significant minority on the losing end of the argument (mainly amongst the African,
Arab, and Asian delegations) that felt customary international law still required the nexus,
82
and
this view, although a minority one, is certainly not without its adherents.
83

Another point of debate over Article 7 of the Rome Statute involved the acts that would
be defined as crimes against humanity. Both the ICTY and ICTR Statutes had contained identical
exhaustive lists which the Rome Statute replicates, but with two key differences. The first
difference centers on the act of persecution, which the ICTY and ICTR Statutes stated could be
committed on “political, racial, or religious grounds.”
84
Article 7 of the Rome Statute keeps this
wording but then adds that persecution can also be committed on national, ethnic, cultural, or
gender grounds or any “other grounds that are universally recognized as impermissible under
international law.”
85
This broader definition had been the subject of an intense debate between
various state delegations --- with some of the delegations arguing for an expansive list defining
the grounds under which persecution could qualify as a crime against humanity, others arguing
for more illustrative list,
86
and yet others still arguing that persecution be removed as an act that
could qualify as a crime against humanity altogether.
87
Ultimately, those arguing for a more
expansive list won out, though this approach has not been without criticism.
88
The second

81
See Herman von Hebel & Darryl Robinson, Crimes within the Jurisdiction of the Court, in THE MAKING OF THE
ROME STATUTE: ISSUES, NEGOTIATIONS AND RESULTS 94 (Roy S. Lee ed., 1999).

82
See id. at 92 n.43. See also Stuart Ford, Crimes Against Humanity at the Extraordinary Chambers in the Courts of
Cambodia: Is a Connection with Armed Conflict Required?, 24 UCLA PAC. BASIN L.J. 125, 129-132 (2007) (Where
the author describes the debates that occurred, in the years following the close of the Secord World War, over
whether crimes against humanity in customary international law still required the armed conflict nexus.).

83
See e.g. WILLIAM A. SCHABAS, THE UN INTERNATIONAL CRIMINAL TRIBUNALS: THE FORMER YUGOSLAVIA,
RWANDA, AND SIERRA LEONE 187-188 (Cambridge University Press 2006) (Where the author discusses how the
probable explanation for the ICTY Statute’s inclusion of the armed conflict requirement for crimes against humanity
in 1993 was the UN Secretary General’s view that to not have done so would have violated the principle of nullum
crimen sine lege (the prohibition on the creation of any ex post facto law to the disadvantage of the accused).).

84
Statute for the International Criminal Tribunal for the former Yugoslavia, supra note 66, at art. 5(h); Statute for
the International Criminal Tribunal for Rwanda, supra note 69, at art. 3(h).

85
Rome Statute of the International Criminal Court, supra note 39, at art. 7(1)(h).

86
See von Hebel & Robinson, supra note 81, at 101.

87
See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, U.N.
Doc. A/51/22 (1996), para. 99.

88
See Antonio Cassese, Crimes Against Humanity, in THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT: A COMMENTARY, VOL. I 376-377 (Antonio Cassese, Paola Gaeta, & John R.W.D. Jones, eds., 2002) (Where
the author criticizes the expansive definition of persecution in Article 7(h) of the Rome Statute as well beyond the
standard under customary international law.).

48
difference between the ICTY / ICTR Statutes and the Rome Statute (in relation to the acts that
could qualify as crimes against humanity) relates to the two new additional acts that the Rome
Statute added to the list already established by the ICTY and ICTR --- these two new acts being
enforced disappearance and apartheid.
89
The inclusion of enforced disappearance and apartheid
as acts that could qualify as crimes against humanity was mainly at the insistence of the Latin
American and African delegations respectively,
90
and was later criticized by some scholars as
being well outside the understood parameters of crimes against humanity under customary
international law.
91

As it currently stands, Article 7 of the Rome Statute is the most recent international
iteration on crimes against humanity as an international offense. In surveying the doctrinal
development of crimes against humanity in the years following the close of the Second World
War, a complex picture has emerged of a doctrine of international criminal law under constant
refinement and interpretation. Appendix I contains an in-depth comparison of the development
of crimes against humanity as an international offense, from its original iteration in the IMT
Charter, through to its later development in the 1990s within the ICTY and ICTR and Rome
Statutes.

2. Crimes Against Humanity and Recursive Cycles

As has been seen, the Rome Statute’s approach to defining crimes against humanity
would differ in several key points from the ICTY and ICTR approaches. It is in exploring these
differences in detail that a complete picture emerges of whether crimes against humanity, as a
specific category of international criminal offense, is currently subject to the presence of
recursive cycles (indicating competing claims and conflicts as to its meaning and application), or
if recursive cycles are not present (indicating acceptance and authority as to meaning and
application). In observing the development of crimes against humanity as a specific international
offense, especially the debates that surrounded its definition and elaboration in Article 7 of the
Rome Statute, a picture emerges which indicates the presence of recursive cycles.

89
See Rome Statute of the International Criminal Court, supra note 39, at arts. 7(1)(i), 7(1)(j). Technically speaking,
there were actually more than two new additional acts (that could be qualified as crimes against humanity) included
in the Rome Statute vis-à-vis the ICTY and ICTR Statutes, but these other acts (sexual offenses other than rape and
forcible transfer) had already been incorporated into the ICTY and ICTR Statutes through case-law. See BOAS,
BISCHOFF, & REID, supra note 46, at 108-109.

90
See von Hebel & Robinson, supra note 81, at 102 n.75. That Latin American delegations would insist on the
inclusion of enforced disappearance (given the prevalence of such crimes during by the governing right-wing
military junta’s in that region during the 1960s through to 1980s ) and the African delegations on apartheid (given
the history of apartheid in South Africa and Rhodesia by minority white governments) is perhaps understandable.

91
See Cassese, supra note 88, at 376; BOAS, BISCHOFF, & REID, supra note 46, at 109. Interestingly other additional
acts (that could qualify as crimes against humanity) were also proposed (but ultimately rejected) during the drafting
of Article 7 --- these acts were: terrorism (proposed by the Indian, Sri Lankan, and Turkish delegations), mass
starvation (proposed by the Costa Rican delegation), and imposition of economic embargo (proposed by the Cuban
delegation). See von Hebel & Robinson, supra note 81, at 102-103.

49
Crimes against humanity, as a category of international offense, is today very much the
subject of competing claims and conflicts as to its meaning and application --- a fact very much
highlighted by the debates over its scope and application both during the drafting of Article 7 of
the Rome Statute, and even before during the establishment of the ICTY and ICTR in the early
1990s. As discussed earlier, the doctrinal development of crimes against humanity as an
international criminal offense only began in earnest at the close of the Second World War with
the IMT Charter and Control Council Law No. 10. With the publication of the 1954 ILC Draft
Code of Crimes Against the Peace and Security of Mankind, the doctrinal development of crimes
against humanity came to a virtual standstill for the next forty years as the ILC became mired in
debates over defining the scope and application of the offense. Part of the problem during this
time lay in the fact that the ILC was working in a vacuum of sorts, as there were no international
conventions or jurisprudence on the subject during this period.
92
This vacuum would set the
stage for the first mechanism driving recursive cycles of norm-making in relation to the
development of crimes against humanity as an international offense --- the “indeterminacy of
law.”

Legal indeterminacy refers to the ambiguities that can be inherent in legal instruments
(e.g. treaties, statutes, regulations, court opinions, etc.) that can then lead to possible unintended
consequences in their application --- thereby setting off repeated rounds of redrafting and
reapplication.
93
The inability of the ILC to resolve the conflict between the IMT Charter’s
insistence on an armed conflict requirement for crimes against humanity, and Control Council
Law No. 10’s insistence on not having such a requirement, combined with international silence
on the subject (in the form of the absence of any international conventions or jurisprudence
regarding the issue during this period), created an environment where ambiguity prevailed. When
in 1993 the ICTY Statute insisted on an armed conflict requirement, in direct opposition to both
the ICTR Statute that came out a year later, and the final ILC Draft Code that came out in 1996,
the stage was set was set for redrafting and reapplication between the various actors. The
majority of this activity took place in the jurisprudence of the ICTY which, through its case-law,
began to systematically dilute the armed conflict requirement in its Statute by declaring that
customary international law no longer required the armed conflict nexus for the commission of a
crime against humanity (and that the requirement in Article 5 of the ICTY Statute was for
jurisdictional purposes only),
94
and that the requirement did not demand a material link between
the crime against humanity allegedly committed and the armed conflict in question.
95
In this

92
See supra note 59.

93
See supra § I(A).

94
See Prosecutor v. Tadić, Case No. IT-94-1-AR72, ICTY Decision on Defense Motion for Interlocutory Appeal on
Jurisdiction, para. 78 (Oct. 2, 1995) (“Since customary international law no longer requires any nexus between
crimes against humanity and armed conflict … Article 5 was intended to reintroduce this nexus for the purposes of
this Tribunal.”).

95
See Prosecutor v. Šešelj, Case No. IT-03-67-AR72.1, ICTY Decision on the Interlocutory Appeal Concerning
Jurisdiction, paras. 13-14 (Aug. 31, 2004) (“As expressed in the jurisprudence of the Tribunal, the jurisdictional
requirement of Article 5 requires the existence of an armed conflict at the time and place relevant to the indictment,
but it does not mandate any material nexus between the acts of the accused and the armed conflict … The Appeals
Chamber does not accept that the jurisdictional requirement of Article 5 requires the Prosecution to establish that an
armed conflict existed within the State (or region) of the Former Yugoslavia in which the charged Article 5 crime is
50
way, the ICTY, through its jurisprudence, began to bring its definition of crimes against
humanity more in line with those of the ICTR and 1996 ILC Draft Code. The legal ambiguity
that had existed in the forty years between the end of the Second World War and the
establishment of the ad hoc Tribunals manifested itself, then, in driving recursive cycles of norm-
making between these various international actors. The Rome Statute’s exclusion of the armed
conflict requirement in its definition of crimes against humanity in 1998 did not bring these
cycles to an end. Indeed, if anything, the recursivity has intensified --- witness the recent
jurisprudence of the East Timor Special Panels for Serious Crimes (SPSC)
96
which, although its
Statute defines crimes against humanity per the Rome Statute definition (i.e. minus an armed
conflict requirement),
97
has ruled in its case-law that crimes against humanity require an armed
conflict nexus.
98

Recall that although the ad hoc Tribunals were purportedly designed to apply existing
international law,
99
their jurisprudence inevitably had a deep effect on the development of certain
international offenses, especially those such as crimes against humanity, that were not very well
defined at the time. The experiences and lessons learned from the work of the ICTY and ICTR
would directly affect how crimes against humanity would be defined in the Rome Statute of the
International Criminal Court (ICC) in 1998, but it would also set the stage for the second (and
final) mechanism driving recursive cycles of norm-making in relation to the development of
crimes against humanity as an international offense --- “contradictions.”

Contradictions refer to the phenomena that emerge ideologically when clashing visions
amongst actors lead to imperfect legal settlements, or institutionally, when legal implementation
is divided out between different institutions.
100
The debates that emerged during the drafting of
the Rome Statute over the inclusion of an armed conflict requirement for crimes against

alleged to have been committed. There can be situations where an armed conflict is ongoing in one state and ethnic
civilians of one of the warring sides, resident in another state, become victims of a widespread and systematic attack
in response to that armed conflict. All that is required under Article 5 of the Statute is that the prosecution establish
that an armed conflict is sufficiently related to the Article 5 crime with which the accused is charged … there is no
need for the Prosecution to establish a material nexus between the acts of the accused and the armed conflict[.]”).

96
Following the violence that accompanied East Timor’s independence from Indonesia in 1999, the UN transitional
Administration in East Timor (UNTAET) set up a hybrid international–East Timorese Tribunal (composed of
international and East Timorese judges) to try the serious criminal offenses that took place in 1999. The Tribunal
operated from 2000 to 2006. For an excellent summary of the Tribunals work, see CAITLIN REIGER & MARIEKE
WIERDA, INTERNATIONAL CRISIS GROUP, THE SERIOUS CRIMES PROCESS IN TIMOR-LESTE: IN RETROSPECT (2006).

97
See Regulation No. 2000/15 on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal
Offences, United Nations Transitional Administration in East Timor, U.N. Doc. UNTAET/REG/2000/15 (Jun. 6,
2000), § 5.

98
See Prosecutor v. Joni Marques, Manuel da Costa, João da Costa, Paulo da Costa, Amélio da Costa, Hilário da
Silva, Gonsalo dos Santos, Alarico Fernandes, Mautersa Monis, and Gilberto Fernandes, Case No. 09/2000 (Trial
Panel Judgment), East Timor Special Panels for Serious Crimes para. 684 (Dec. 11, 2001).

99
See supra text accompanying notes 64-65.

100
See supra § I(B)

51
humanity, and the specific acts that could be qualified as crimes against humanity,
101
point to the
Rome Statute as representing not the final conclusive international judgment on the definition of
crimes against humanity as an international offense, but rather instead as a partial and unstable
temporary solution that seeks to incorporate fundamentally incompatible viewpoints. Indeed, not
only does debate still exist on the armed conflict nexus for a crime against humanity, even in the
wake of the Rome Statute,
102
but the inclusion of additional acts into what had previously been a
stable list of offenses (duplicated in both the ICTY and ICTR Statutes) has generated much
controversy.
103
These debates emerged out of ideological clashed between various national
delegations to the Rome Conference, who had their own idiosyncratic reasons (often rooted in
very specific historical or social circumstances) for advocating the positions that they did.
104

The status of crimes against humanity today as an international offense is well
established and not in doubt --- the years following the Second World War, especially the last
two decades following the establishments of the ICTY and ICTR, saw the status of crimes
against humanity as a specific type of international crime solidify. What the preceding section
has shown, however, is that the specific doctrinal development of crimes against humanity is still
today very much in flux and subject to repeated recursive cycles of norm-making. Perhaps once
the ICC begins trying cases in earnest and building a body of case-law, these cycles will
dissipate as norm-making episodes settle and come to an end (indicating acceptance as to
application of meaning). Time will tell, although the imperfect legal settlement that is the Rome
Statute may not bode well for such a clear outcome in the future.

B. Genocide

Much like “crimes against humanity,” the emergence of “genocide” as a specific
international offense has been fairly recent, starting only in the years immediately following the
end of the Second World War. Unlike the doctrinal development of crimes against humanity
however, genocide’s development was very quickly subject to a widely ratified international
convention and expansive jurisprudential development in the International Court of Justice (ICJ).
It would be these two institutionalizing factors that contribute most to genocide’s current status
as a doctrine of international criminal law whose meaning and application are standardized and
well established.

1. Overview

The origin of “genocide” as a specific international crime can be first traced to the
aftermath of the extermination of the majority of the Jewish population of Europe by Nazi

101
See supra § II(A)(1) for a summary of these debates.

102
See supra text accompanying notes 96-97.

103
See supra text accompanying notes 84-91.

104
See supra text accompanying notes 85-91.

52
Germany.
105
Genocide initially began its life as crime against humanity, for it was in the
indictments of the leading Nazi officials tried by the International Military Tribunal (IMT),
106

and in prosecution closing arguments during these trials, that the term was first used in relation
to the murder, by a state, of its own citizens.
107
The legal use of the term “genocide” by the IMT
was imprecise to the extent that the term never appeared anywhere in the IMT Charter and there
was ambiguity in the exact elements required for an offense to be classified as genocide.

Shortly after the IMT concluded its work in 1946, the UN issued a General Assembly
resolution defining genocide as a distinct international offense (i.e. separate from crimes against
humanity).
108
This activity on the international level at the UN would set the stage (two years
later in 1948) for the adoption of a widely ratified international treaty, the Genocide
Convention,
109
which would have far reaching effects for the doctrinal development of genocide
as an international crime.
110
The Genocide Convention was groundbreaking in that it (a) certified
genocide as a distinct crime under international law (whether in times of war or peace);
111
(b)
clearly stated that the elements that would be required to be present in order for the offense to be
committed would be the targeting of a national, ethnic, racial, or religious group with a specific
intent towards its destruction;
112
and (c) referenced any disputes as to the meaning or application

105
The term “genocide” was invented by Raphaël Lemkin in 1944 to describe Nazi Germany’s targeting and
extermination of European Jews and Gypsies (genos being the Greek word for race, and - cide being the Latin suffix
for killing). See RAPHAËL LEMKIN, AXIS RULE IN OCCUPIED EUROPE: LAWS OF OCCUPATION, ANALYSIS OF
GOVERNMENT, PROPOSALS FOR REDRESS 79 (Carnegie Endowment for International Peace 1944).

106
See supra § II(A)(1) for a discussion on the establishment of the IMT.

107
See International Military Tribunal Indictment No. 1, II Trial of the Major War Criminals Before the IMT 1, 45-
46 (1946) (“They [indicted parties] conducted deliberate and systematic genocide; viz., the extermination of racial
and national groups, against the civilian population of certain occupied territories in order to destroy particular races
and classes of people, and national, racial, or religious groups, particularly Jews, Poles, and Gypsies.”); France,
Union of Soviet Socialist Republics, United Kingdom, and United States v. Göring, Bormann, Dönitz, Frank, Frick,
Fritzsche, Funk, Hess, Jodl, Kaltenbrunner, Keitel, von Bohlen und Halbach, Ley, von Neurath, von Papen, Raeder,
von Ribbentrop, Rosenberg, Sauckel, Schacht, von Schirach, Seyss-Inquart, Speer, and Streicher, XXII Trial of the
Major War Criminals before the IMT 411, 480 (1946) [hereinafter Nuremberg Judgment].

108
See G.A. Res. 96(I), U.N. GAOR, 1st Sess., 55th mtg., U.N. Doc. A/RES/96(I) (Dec. 11, 1946).

109
See Convention on the Prevention and Punishment of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.

110
BOAS, BISCHOFF, & REID, supra note 46, at 147-148.

111
Convention on the Prevention and Punishment of Genocide, supra note 109, at art. 1 (“The Contracting Parties
confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law
which they undertake to prevent and to punish.”).

112
Id. at art. 2 (Where genocide is defined as the targeting of a national, ethnic, racial, or religious group with the
following acts: murder, causing serious bodily / mental harm, deliberately inflicting conditions designed to destroy
the targeted group, preventing births within the targeted group, and transferring children from the targeted group to
another group. These acts would have to be committed with the intent to destroy “in whole or in part” the targeted
group.).

53
of specific sections of the Treaty to the ICJ
113
in The Hague.
114
This final point, the referencing
of any disputes as to the meaning or application of the Treaty to the ICJ, would have far reaching
consequences.

The Genocide Convention was opened for accession in 1948 and designed to enter into
force as soon as at least twenty states had signed and ratified it.
115
Ratification amongst the states
of the international community occurred at lightning speed and the Convention came into force
in 1951. Although, at this time, the Treaty seemingly operated as a form of conventional
international law, binding on only those states which had signed it,
116
the ICJ quickly changed
this calculus by means of its famous 1951 Advisory Opinion which, amongst other things, stated
that the principles stated within Genocide Convention were in fact principles of customary
international law, binding on all states within the international system,
117
whether signatories of
the Treaty or not.
118
In the decades following the Genocide Convention and the 1951 ICJ
Advisory Opinion, the definition of genocide as an international criminal offense that they
established remained relatively unchanged. Indeed, a survey of the most relevant international
instruments defining the offense (i.e. the ICTY and ICTR Statutes, the 1996 ILC Draft Code of
Crimes Against the Peace and Security of Mankind, and the Rome Statute of the ICC) contained
in Appendix II reveals no derogation from the parameters first established by the Convention.

2. Genocide and Recursive Cycles

The definition and elaboration of genocide as a specific category of international criminal
offense that emerged in the wake of the Genocide Convention and 1951 ICJ Advisory Opinion
(on the Treaty) has remained remarkably stable.
119
In exploring the jurisprudence of the ICTY

113
The International Court of Justice (ICJ) is the principle judicial organ of the UN. All members of the UN are ipso
facto members of the ICJ, and must therefore adhere to the ICJ’s Statute. The Court consists of 15 judges, elected by
absolute majorities in both the UN General Assembly and Security Council.

114
Convention on the Prevention and Punishment of Genocide, supra note 109, at art. 9 (“Disputes between the
Contracting Parties relating to the interpretation, application or fulfillment of the present Convention, including
those relating to the responsibility of a State for genocide or any of the other acts enumerated in Article 3, shall be
submitted to the International Court of Justice at the request of any of the parties to the dispute.”).

115
Id. at art. 13.

116
See supra § II for a discussion and explanation of the two primary forms of international law --- law deriving from
custom (customary international law) and law deriving from international treaties or conventions (conventional international
law).

117
See id.

118
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
1951 I.C.J. 15, 23 (May 28, 1951) (“[T]he principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without any conventional obligation.”). See also Report of
the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, supra note 64, at para. 45
(Where the UN Secretary-General cites the 1951 ICJ Advisory Opinion on the Genocide Convention to support the
view that the principles laid out in the Treaty were those of customary international law.).

119
Indeed, the main development in the doctrine in the years following the Genocide Convention and 1951 ICJ
Advisory Opinion has not been on its definition and elaboration as a specific category of international offense
54
and ICTR in the past two decades which, until the ICC begins to build a body of case-law,
remains the principal international source
120
elaborating on the development of the doctrine, an
interesting picture emerges. As shall be seen, this picture indicates that recursive cycles of norm-
making have long ceased and that, indeed, acceptance and authority as to meaning and
application of the doctrine are well established.

While the ICTY and ICTR have contributed to some development on the doctrinal
margins of genocide as an international offense, on the whole, a survey of their jurisprudence
demonstrates that the definition first forwarded by the Genocide Convention in 1948 remains
wholly intact. Recall that Article 2 of the Genocide Convention requires that an international
offense of genocide can only occur if there is “intent to destroy, in whole or in part, a national,
ethnical, racial or religious group.”
121
Recall also that a survey of the most relevant international
instruments defining the offense (i.e. the ICTY and ICTR Statutes, the 1996 ILC Draft Code of
Crimes Against the Peace and Security of Mankind, and the Rome Statute of the ICC) reveals no
derogation from these parameters first established by the Convention. While ICTY and ICTR
case-law has clarified that the test for the specific intent or dolus specialis that is required here
(i.e. “intent to destroy”) be the possible existence of a “genocidal plan,”
122
this is only a tool that
can be used to ascertain the required mental element or mens rea
123
elaborated by the Genocide
Convention itself. Along similar lines, ICTY and ICTR case-law has clarified that the physical
element or actus reus required here (i.e. destruction “in whole or in part”) is not the complete
destruction of a targeted group, but rather their destruction in the limited geographical area
where the alleged offense took place
124
--- but again, this is only an elaboration of physical
requirement listed in the Genocide Convention itself.

applying to individual responsibility, but rather on whether genocide operates as a category of international civil
offense that can hold entire states (rather than individuals) liable. See Case Concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia),
Preliminary Objections Judgment, 1996 I.C.J. 565, 616 (Jul. 11, 1996) (Where the ICJ held that claims for state
responsibility for genocide were admissible under the Genocide Convention.); Application of the Convention on the
Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Serbia and Montenegro), 1997 I.C.J.
43, 168 (Feb. 26, 2007) (Where the ICJ held that Serbia-Montenegro, as a state, was not responsible for genocide
committed in the state of Bosnia-Herzegovina during the conflict that erupted there in the 1990s.).

120
For a brief description of the national level trials for genocide that occurred from the 1950s through to the 1990s
and how they contributed little to the development of the doctrine, see BOAS, BISCHOFF, & REID, supra note 46, at
151-152.

121
Convention on the Prevention and Punishment of Genocide, supra note 109, at art. 2.

122
See Prosecutor v. Krstić, Case No. IT-98-33-A, ICTY Appeals Chamber Judgment, para. 225 (Apr. 19, 2004)
(“[T]he existence of a plan or policy is not a legal ingredient of the crime of genocide. While the existence of such a
plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence
supporting the inference of intent, and does not become a legal ingredient of the offense.”); Prosecutor v. Simba,
Case No. ICTR-01-76-A, ICTR Appeals Chamber Judgment, para. 260 (Nov. 27, 2007). See also Guglielmo
Verdirame, The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals, 49 INT. COMP. LAW. Q. 578, 588
(2000).

123
See supra note 76.

124
See Prosecutor v. Krstić, Case No. IT-98-33-T, ICTY Trial Chamber Judgment, paras. 582-584 (Aug. 2, 2001).

55

If recursive cycles of norm-making currently remain absent in respect to the doctrinal
development of genocide as a specific international offense, a snap-shot of the situation in the
midst of the drafting and ratification of the Genocide Convention in the late 1940s reveals just
how very different the state of affairs was at that time, with recursive cycles (indicating
competing claims and conflicts as to its meaning and application) in full force. The debates
surrounding the drafting of the Convention reveal just how in flux, during this period, the
definition of genocide as an international offense was. Debates abounded between views which
wanted to include acts of targeting the culture and social standing of groups as constituting
genocide,
125
and the view which ultimately prevailed, which wanted to focus on overt physical
acts of murder / extermination.
126
Other debates surrounded the question of whether “political”
groups should be added to the list of protected groups which, recall, included “national, ethnical,
racial … [and] religious group[s]”
127
--- this view was, of course, in the end unsuccessful as
Article 2 of the Genocide Convention contains no reference to “political” groups.
128
In stark
contrast to the stable situation in place today then, the drafting and ratification of the Genocide
Convention in the late 1940s saw immense struggles amongst varied actors over the meaning and
application of the emerging international offense of genocide. Ultimately, the ability of these
actors to come together and agree on the prevailing draft of the Genocide Convention set the
stage for the 1951 ICJ Advisory Opinion and the subsequent emergence of the norms contained
in the Convention to become an agreed upon standard.

C. War Crimes

In common historical usage, the expression “war crimes” most usually refers to
unacceptably vicious or aggressive actions taken by participants in armed conflicts. As a legal
term of art, however, “war crimes” denotes an umbrella term which refers to a specific category
of international offense that has its modern origins in the Hague and Geneva Conventions which
emerged out of peace conferences held at the turn of, and mid-point respectively, of the 20th
century. Today, these general rules that the Hague Conventions established (which focused on
the methods and means of waging warfare) have been characterized as “Hague Law,” whilst the
rules established by the Geneva Conventions (which focused on the treatment of civilians and

125
See e.g. Draft Convention on the Crime of Genocide, U.N. Doc. E/447 (1947), art. 2(3) (Where “cultural
genocide” is defined as the targeting of a protected group with the following acts: transferring children from the
targeted group to another group, forcible exile of members of the targeted group, prohibitions on the use of the
national language of the targeted group, the systematic destruction of books printed in the national language of the
targeted group, the prevention of the publication of religious works in the national language of the targeted group,
and the systematic destruction of cultural / historical monuments of the targeted group.).

126
See Convention on the Prevention and Punishment of Genocide, supra note 109, at art. 2 (Where genocide is
defined as the targeting of a national, ethnic, racial, or religious group with the following acts: murder, causing
serious bodily / mental harm, deliberately inflicting conditions designed to destroy the targeted group, preventing
births within the targeted group, and transferring children from the targeted group to another group.).

127
See e.g. Report of the ad hoc Committee on Genocide, U.N. ESCOR, 7th Sess., UN Doc. E/794 (1948) (Where
the list of proposed protected groups includes “political” groups.).

128
See Convention on the Prevention and Punishment of Genocide, supra note 109, at art. 2.

56
other non-belligerents in warfare) have been characterized as “Geneva Law.”
129
Taken together,
both “Hague Law” and “Geneva Law” form the modern doctrinal base of war crimes as an
international offense. Very much following the formula that was seen previously with the
development of genocide as an international offense, the wide ratification of the Hague and
Geneva Conventions would have an institutionalizing effect on war crimes and play into its
current status as a doctrine of international criminal law whose meaning and application are
standardized and well established.

1. Overview

The umbrella term “war crimes” refers to a specific category of international offense that
has its modern origins in the Hague Peace Conferences of 1899 and 1907,
130
and the Geneva
Conventions of 1949
131
and Additional Protocols of 1977.
132
Whilst the modern doctrinal
development of war crimes traces to the aforementioned Hague and Geneva Conventions, the
root of the idea that there were certain rules to the waging of war (jus in bello) can be said to go
back to antiquity.
133
The horrors of the Battle of Solferino in 1859, where the combined armies
of the opposing French, Italian, and Austro-Hungarian forces numbered around three hundred
thousand men, galvanized Europe and led both to the establishment of the International
Committee of the Red Cross (ICRC) and first Geneva Convention of 1864.
134
Both of these
institutions sparked a flurry of international treaty making in the last half of the 19th century

129
See e.g. BOAS, BISCHOFF, & REID, supra note 46, at 224 (“The vast corpus of proscriptions that make up modern
war crimes law derives from two historically distinct bodies of law: ‘Hague Law,’ emerging out of the Hague
Conventions of 1899 and 1907, seeks to regulate the means and methods of warfare, with the purpose of reducing
unnecessary suffering and destruction; and ‘Geneva Law,’ emerging mainly out of the 1949 Conventions and the
1977 Additional Protocols but with foundations in earlier treaties, seeks to protect and ameliorate the suffering of
civilians and others not engaged in active hostilities, such as the wounded, sick, shipwrecked, prisoners of war, and
medical personnel.”); BANTEKAS, supra note 47, at 137 (“The jus in bello has conventionally been categorised as
'Geneva law', that is, international humanitarian law, and 'Hague law', the latter of which is concerned with the
regulation of the means and methods of warfare.”).

130
See supra text accompanying notes 42-44.

131
See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, Aug. 12, 1949, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S.
85 [hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of
Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV].

132
See Protocol I Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts, Dec. 7, 1978, 1125 U.N.T.S. 3 [hereinafter Additional Protocol I];
Protocol II Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of
Non-International Armed Conflicts, Dec. 7, 1978, 1125 U.N.T.S. 609 [hereinafter Additional Protocol II].

133
See BOAS, BISCHOFF, & REID, supra note 46, at 219-223 (Where the authors conduct a historical survey
discussing the views of various civilizations, from the ancient to the near-modern, on the practice of warfare and the
rules that ought to govern it.).

134
Id. at 223.

57
which would culminate in the Hague Peace Conferences,
135
which are important in the present
discussion due to the many international treaties governing the conduct of warfare they
spawned,
136
the most important (in the present discussion on war crimes) being the 1907 Hague
Convention No. IV.
137

Hague Convention No. IV fed into the modern premise, which had begun to grow in
Europe in the midst the last half of the 19th century, that warfare was subject to rules and limits.
Accordingly, the Convention banned the use of “poisoned weapons” (i.e. chemical weapons),
138

the killing of surrendering enemy forces,
139
the unnecessary seizure of enemy property,
140
the
suspension of the legal due process rights of enemy nationals,
141
the attack / bombardment of
undefended cities and dwellings,
142
the destruction of buildings “dedicated to religion, art,
science, … charitable purposes, [or] historic monuments,”
143
and pillaging.
144
Today, these
general rules that the Hague Conventions established on the methods and means of waging
warfare have been characterized as “Hague Law.” Although Hague Convention No. IV was
originally a form of conventional international law, only binding on those states which had
signed the Treaty,
145
by the eve of the Second World War the wide scale adherence that it had
inspired served to elevate it’s provisions into principles of customary international law, binding
on all states within the international system,
146
whether signatories of the Treaty or not.
147

135
See id. at 223-224 (Where the authors discuss the role of the battle of Solferino, the ICRC, and 1864 Geneva
Convention in sparking the explosion of international treaty making which would culminate in the Hague Peace
Conferences in 1899 and 1907.).

136
See supra note 42.

137
See 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, supra note 45.

138
Id. at art. 23.

139
Id.

140
Id.

141
Id.

142
Id. at art. 25.

143
Id. at art. 27.

144
Id. at art. 28.

145
See supra § II for a discussion and explanation of the two primary forms of international law --- law deriving from
custom (customary international law) and law deriving from international treaties or conventions (conventional international
law).

146
See id.

147
BOAS, BISCHOFF, & REID, supra note 46, at 225. The case-law of both the IMT and the ICTY has also claimed
customary status for the 1907 Hague Convention No. IV. See Nuremberg Judgment, I Trial of the Major War
Criminals before the IMT 171, 254 (1946) (“[T]he [C]onvention [1907 Hague Convention No. IV] expressly stated
that it was an attempt ‘to revise the general laws and customs of war,’ which it thus recognized to be then existing,
but by 1939 these rules laid down in the Convention were recognized by all civilized nations, and were regarded as
58

Whilst “Hague Law” seeks to regulate the methods and means of waging warfare, it is
largely silent on the treatment of civilians and other non-belligerents
148
in warfare. Such issues
are instead covered by a body of law that has emerged out of the Geneva Conventions of 1949
and Additional Protocols of 1977 and which has come to be known as “Geneva Law.” The
Geneva Conventions of 1949 are four international treaties,
149
negotiated in the aftermath of the
Second World War, which sought to declare and codify the treatment offered to sick, wounded,
and captured combatants in and around war-zones; in addition to establishing a set protections
for civilians in such war-zones. As such, the Conventions declared prohibitions against willful
killing (i.e. murder),
150
torture / inhumane treatment,
151
destruction of property,
152
forcibly
compelling service in enemy forces,
153
the suspension of due process rights,
154
unlawful
deportation or transfer,
155
and hostage taking.
156
In 1977, Additional Protocol I to the Geneva
Conventions slightly expanded this list of protections to include prohibitions over such things as
the deliberate targeting of civilians (in an attack) and racial targeting / discrimination (i.e. against
an opposing civilian population).
157
Much like the 1907 Hague Convention No. IV, the Geneva
Conventions and Additional Protocols, though starting out as a form of conventional

being declaratory of the laws and customs of war[.]”); Prosecutor v. Strugar, Case No. IT-01-42-T, ICTY Trial
Chamber Judgment, para. 227 (Jan. 31, 2005) (“Both [t]he Hague Convention (IV) of 1907 and [t]he Hague
Regulations are rules of international humanitarian law and they have become part of customary international law.”).

148
“Non-belligerents” here also includes prisoners of war.

149
It should be noted that, strictly speaking, the process that commenced in the aftermath of the Second World War
was a large-scale revision of three earlier treaties and the drafting of a brand new fourth treaty. The three earlier
treaties were: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (Geneva Convention I), Geneva Convention for the Amelioration of the Condition of Wounded, Sick and
Shipwrecked Members of Armed Forces at Sea (Geneva Convention II), and Geneva Convention Relative to the
Treatment of Prisoners of War (Geneva Convention III). The fourth wholly new treaty was: Geneva Convention
Relative to the Protection of Civilian Persons in Time of War (Geneva Convention IV).

150
Geneva Convention I, supra note 131, at art. 50; Geneva Convention II, supra note 131, at art. 51; Geneva
Contention III, supra note 131, at art. 130; Geneva Contention IV, supra note 131, at art. 147.

151
Geneva Convention I, supra note 131, at art. 50; Geneva Convention II, supra note 131, at art. 51; Geneva
Contention III, supra note 131, at art. 130; Geneva Contention IV, supra note 131, at art. 147.

152
Geneva Convention I, supra note 131, at art. 50; Geneva Convention II, supra note 131, at art. 51; Geneva
Contention IV, supra note 131, at art. 147.

153
Geneva Contention III, supra note 131, at art. 130; Geneva Contention IV, supra note 131, at art. 147.

154
Geneva Contention III, supra note 131, at art. 130; Geneva Contention IV, supra note 131, at art. 147.

155
Geneva Contention IV, supra note 131, at art. 147.

156
Id.

157
See generally Additional Protocol I, supra note 132, at art. 85.

59
international law, only binding on those states which had signed the Treaty,
158
had by the 1980s
become elevated into principles of customary international law, binding on all states within the
international system,
159
whether signatories of the Treaty or not.
160

In surveying the current state of war crimes as an international criminal offense, the
strong institutionalizing effects of the Hague and Geneva Conventions become very clear. The
“Hague Law” standards regulating the methods and means of waging warfare, coupled with the
“Geneva Law” protections for civilians and other non-belligerents, still form the basis for
contemporary doctrinal understandings of war crimes in international law. An analysis of the
most relevant international instruments defining the offense, as contained in Appendix III,
reveals very little derogation
161
from the parameters first established by the Hague and Geneva
Conventions.

2. War Crimes and Recursive Cycles

While the international criminal
162
tribunals have contributed to some elaboration of war
crimes as an international offense, on the whole, a survey of their jurisprudence demonstrates
that the definitions and standards the first established by the Hague and Geneva Conventions
remain remarkably well intact. While there can be some possible argument for the presence of
recursive cycles of norm-making in the early to late 1990s when the ICTY and ICTR were first
established and began their work, especially around the question of the nature of the armed
conflict required (i.e. whether said conflict was “international” in nature or an “internal” civil
war situation), for specific acts to qualify as war crimes, at present recursive cycles of norm-
making have long ceased and acceptance and authority as to meaning and application of the
doctrine are well established.

158
See supra § II for a discussion and explanation of the two primary forms of international law --- law deriving from
custom (customary international law) and law deriving from international treaties or conventions (conventional international
law).

159
See id.

160
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, supra note 64, at
paras. 41-44; Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780,
U.N. Doc. S/1994/674 (1994), paras. 42, 52-54. The case-law of the ICJ has also claimed customary status for the
Geneva Conventions. See Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United
States), 1986 I.C.J. 14, 113-114 (Jun. 27, 1986).

161
It should be noted here that the Rome Statute does contain a list of acts (that can qualify as war crimes) that
expands considerably the list of traditionally accepted acts articulated in the Hague and Geneva Conventions. It
should also be noted, however, that the full extent of this on the doctrinal development of war crimes as an
international offense cannot yet be judged as the ICC, as a fairly recently established institution, has yet to build a
body of case-law. See infra § II(C)(2) for a more in-depth discussion. See also BOAS, BISCHOFF, & REID, supra note 46,
at 291-297 (Where the authors provide a detailed commentary on the potential implications of the ICC’s expanded
definition of war crimes.).

162
In this context mainly the ICTY and ICTR as the ICC, as a fairly recently established institution, has yet to build
a body of case-law.

60
In Article 3 of its Statute, the ICTY incorporates the “Hague Law” protections for
regulating the methods and means of waging warfare, whilst in Article 2 it does the same for the
“Geneva Law” protections for civilians and other non-belligerents in armed conflicts. As the
Geneva Conventions were primarily designed to develop protections that would apply to
civilians and other non-belligerents in armed conflicts of an “international” nature (i.e. between
two sovereign states), and not armed conflicts “internal” in nature (i.e. civil wars),
163
Article 2 of
the ICTY Statute only applies to “international” armed conflicts.
164
Although this jurisdictional
point is well established in international law,
165
and the test for determining the nature of an
armed conflict (for the purposes of determining whether “Geneva Law” protections attach) also
well established by ICJ jurisprudence through what is called the effective control standard,
166
in
1999 the ICTY nevertheless took a wholly different tact in its jurisprudence and articulated a
new (less stringent) test --- the overall control standard.
167
The ICTY justified its departure from
established international jurisprudence by claiming that the ICJ’s effective control standard ran
contrary to both judicial
168
and state practice.
169
In the few short years since the promulgation of

163
The one exception here is what is known as “common Article 3” which is an article, common to all four Geneva
Conventions, that provides protections for civilians and other non-belligerents in armed conflicts “internal” in
nature. These protections are fairly basic and consist of prohibitions against murder, hostage taking, degrading
treatment, and the suspension of due process rights. See Geneva Convention I, supra note 131, at art. 3; Geneva
Convention II, supra note 131, at art. 3; Geneva Contention III, supra note 131, at art. 3; Geneva Contention IV,
supra note 131, at art. 3.

164
The “Hague Law” protections of Article 3 of the ICTY Statute, on the other hand, apply to armed conflicts
regardless of their character, whether “international” or “internal.”

165
See e.g. BOAS, BISCHOFF, & REID, supra note 46, at 227-230; BANTEKAS, supra note 47, at 140-141.

166
See Military and Paramilitary Activities, 1986 I.C.J. 14 at 62-65, 110-116 (Here the ICJ was faced with the
question of whether certain groups, fighting the Nicaraguan government that were supported by the United States,
were in fact its agents. In surveying the corpus of international law, the ICJ held that in establishing whether an
armed conflict was “international” in character agency (between organized private groups and a state) could only be
established if the state in question coordinated and supervised (as well as issued specific instructions to) to the group
--- in other words whether effective control (by the state in question) was being exerted over the group.).

167
See Prosecutor v. Tadić, Case No. IT-94-1-A, ICTY Appeals Chamber Judgment, para. 131 (Jul. 15, 1999) (Here
the ICTY Appeals Chamber was faced with the question of whether the VRS or Bosnian Serb Army (Vojska
Republike Srpske) fighting during the war in Bosnia-Herzegovina was an agent of the Federal Republic of
Yugoslavia (thereby marking the conflict “international” in character). Rejecting the ICJ’s effective control
standard, the ICTY held that the VRS was acting as an agent of the Federal Republic of Yugoslavia under its own
new (and less stringent) overall control standard which only required that a state in question coordinate the general
military planning (of a private group) for agency to be established.

168
As examples of where the effective control standard ran afoul of judicial practice, the ICTY Appeals Chamber
cited cases from the Mexico-US Claims Tribunal, Iran-US Claims Tribunal, and European Court of Human Rights.
The following should, however, be noted regarding the cases cited by the Appeals Chamber: (1) The work of the
Mexico-US Claims Tribunal was completed decades before the International Court of Justice’s ruling in Nicaragua.
(2) The Iran-US Claims Tribunal, as a private arbitral body designed to adjudicate monetary claims between the
United States and Islamic Republic of Iran, stands on a hierarchical footing that is considerably lower than that of
the International Court of Justice. (3) The fact pattern in the European Court of Human Rights decision cited (i.e.
Loizidou v. Turkey), would actually meet the ICJ’s effective control standard, see Davis B. Tyner, The
Internationalization of War Crimes Prosecutions: Correcting the International Criminal Tribunal for the Former
Yugoslavia’s Folly in Tadic, 18 FLA. J. INT’L L. 843, 859 n.91 (2006).

61
the ICTY’s overall control standard in 1999, the less stringent ICTY test has come to be viewed
by many scholars as the new standard in international law for judging the nature of an armed
conflict (for the purposes of determining whether “Geneva Law” protections attach).
170

While the jurisprudence of the ICTY in establishing a different (less stringent) test for
determining the nature of an armed conflict --- “international” versus “internal” --- could be said
to have marked the presence of possible cycles of legal recursivity within the doctrinal
development of war crimes as an international offense, two qualification should be made. First,
the ICTY’s jurisprudence did not symbolize any direct shifts within the accepted doctrinal
understanding of war crimes as an international offense (as elaborated by the Hague and Geneva
Conventions). Instead, what the ICTY articulated in its jurisprudence was a different threshold
test for determining whether (and in what) armed conflict situations the doctrine applied. What
was being radically changed was the bar for judging when the doctrine could be applied, not the
doctrine itself. Second, even if one were to accept that the ICTY’s jurisprudence in articulating
the overall control standard was an indication of legal recursivity, then the wide-scale
acceptance of said standard in the years following its promulgation in 1999
171
is a very clear
indication that the recursive cycles of norm-making unleashed in 1999 have come to a rather
quick end, and that the overall control standard is now accepted as authoritative in meaning and
application.
172

Differences over the effective control standard versus the overall control standard aside,
the war crimes jurisprudence of the international tribunals has broadly kept in line with the
standards first articulated by the Hague and Geneva Conventions. Though, to be sure, the

169
Tadić, Case No. IT-94-1-A, at paras. 116-145. Not all the judges on the appeals panel agreed that expressly
attacking the ICJ’s effective control standard was a wise course of action, see id. (Separate Opinion of Judge
Shahabuddeen) at paras. 154-156.

170
See e.g. MARTIN DIXON, TEXTBOOK ON INTERNATIONAL LAW 239 (4th ed. 2000); Marco Sassòli & Laura M. Olson,
The Judgment of the ICTY Appeals Chamber on the Merits in the Tadić Case, 839 I.R.R.C. 733, 739 (2000);
Machteld Boot, GENOCIDE, CRIMES AGAINST HUMANITY, WAR CRIMES: NULLUM CRIMEN SINE LEGE AND THE SUBJECT
MATTER JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT 554 (Intersentia 2002); Derek Jinks, State
Responsibility for Sponsorship of Terrorist and Insurgent Groups: State Responsibility for the Acts of Private Armed
Groups, 4 CHI. J. INT'L L. 83, 88-89 (2003); Carsten Stahn, International Law Under Fire: Terrorist Acts as “Armed
Attack”: The Right to Self-Defense, Article 51 (1/2) of the UN Charter, and International Terrorism, 27 FLETCHER
F. WORLD AFF. 35, 47 (2003); RACHEL KERR, THE INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA:
AN EXERCISE IN LAW, POLITICS, AND DIPLOMACY 80-81 (Oxford University Press 2004).

171
See id.

172
Such an interpretation would, of course, also raise the question of which of the four identified mechanisms (or
combination thereof) are driving the recursive cycles of norm-making here? Recall that Terence Halliday and Bruce
Carruthers identified these identified mechanisms as: (1) the indeterminacy of law; (2) contradictions; (3) diagnostic
struggles; and (4) actor mismatch. Taking all of the evidence into account, it would seem that the most plausible
mechanism driving the potential relationship here would be “actor mismatch” which, recall, occurs when there is a
disparity between actors who actually participate in the norm-making process in a particular issue area, and those
who the norms actually affect. In promulgating the effective control standard in 1986 the ICJ was faced with a
single case whose effects would not be on-going (cases with international criminal law as their main subject matter
are rare at the ICJ). The ICTY, on the other hand, in promulgating its overall control standard in 1999 was faced
with a case whose effects would be far-reaching and have effects on dozens of other cases in its future docket.

62
jurisprudence of the tribunals has contributed to the development of the doctrine, this
development has been through the elaboration of the standards articulated by the Hague and
Geneva Conventions and not a whole scale re-writing of them.
173
This being said, the
continuation of this present state of affairs into the future in not a given. Although in its
definition of war crimes as an international offense, the Rome Statute of the ICC follows the
parameters first established by the Hague and Geneva Conventions in the acts it lists as
qualifying as war crimes, it also then goes on to considerably expand this list beyond what is
found in either the original Conventions.
174
As it currently stands, the full extent of this
expanded definition on the doctrinal development of war crimes as an international offense
cannot yet be judged as the ICC, as a fairly recently established institution, has yet to build a
body of case-law, but new cycles of norm-making are certainly a possibility into the future once
the ICC begins its work in earnest.

SUMMARY

This chapter has presented a more in-depth discussion of the socio-legal scholarship first
surveyed in Chapter 1, specifically Terence Halliday and Bruce Carruthers’ theory of legal
recursivity, which holds that law making and implementation, on both the system and national
levels, can act as an iterative and recursive process --- a process possibly driven by four distinct
identifiable mechanisms: (1) the indeterminacy of law; (2) contradictions; (3) diagnostic
struggles; and (4) actor mismatch. As has been seen, one of the principal strengths of legal
recursivity is that it identifies specific mechanisms that can drive the recursive cycles within
norm-making episodes. The discussion of legal recursivity in this chapter was framed with the
purpose of then setting the stage to test the three main doctrinal areas of international criminal
law (crimes against humanity, genocide, and war crimes) against the presence (or lack thereof) of
recursive cycles. Were these doctrines subjected to competing claims and conflicts as to their
meanings and application, or had they rather gained the status of accepted, and therefore
authoritative, norms? Such a discussion has important implications, as international criminal law
(a relatively new body of law governing the commission of criminal offenses in conflicts) was
originally a part of international law, but has over the years institutionalized and separated out to
form its own unique and distinct body of rules. Such an analysis is also vital to this present study,
for the hypothesis that is being tested here is whether legal recursivity and / or institutional
design have any bearing on whether transnational actors have been able to change the procedure
through which criminal cases in Bosnia-Herzegovina are adjudicated. The ultimate conclusion
reached in this chapter was that whilst crimes against humanity are still the subject of recursive
cycles of norm-making, genocide and war crimes no longer are and have instead reached the
status of status of accepted, and therefore authoritative, norms.

As will be discussed in detail in the next chapter, jurisdiction over criminal cases
originating from international criminal offenses committed during the 1990s conflict are handled
by three very different sets of judicial institutions in Bosnia-Herzegovina: the central

173
For an approachable though still detailed analysis highlighting the volumes of ICTY and ICTR war crimes
jurisprudence which shows said jurisprudence in broad agreement with the parameters first articulated by the Hague
and Geneva Conventions, see BANTEKAS, supra note 47, at 143-155.

174
See supra note 161.
63
government’s State-Court of Bosnia-Herzegovina, and local district courts in the Republic of
Srpska and cantonal courts in the Federation. All three institutions are empowered to hear cases
originating from international offenses committed in the territory of the former Yugoslavia
during the conflict of the early 1990s, but at the same time the institutional design of each
institution is very different. Criminal cases in Bosnia-Herzegovina originating from offenses
committed during the 1990s conflict are prosecuted based on international criminal law. The
international criminal doctrines of crimes against humanity, genocide, and war crimes are part of
domestic Bosnian law and directly applicable. By operationalizing and measuring the possible
existence of on-going versus settled episodes of norm-making, this chapter has now set the stage
to test, in the next chapter, how these doctrines of international criminal law are applied in three
very different domestic Bosnian judicial institutions, each with a very different institutional
design that may possibly then play a role in either magnifying or diffusing transnational actor
influence.

64

In the previous chapter, a detailed discussion was provided on the origins of international
criminal law, a relatively new body of law governing the commission of criminal offenses in
conflicts that was originally a part of international law, but that has over the years
institutionalized and separated out to form its own unique and distinct body of rules. This
discussion at the start of Chapter 3 was framed with the purpose of setting the stage to test the
three main doctrinal areas that have emerged within international criminal law (crimes against
humanity, genocide, and war crimes) against the presence (or lack thereof) of recursive cycles of
norm-making. The analysis undertaken in Chapter 3 feeds into the present chapter which looks to
discuss how these doctrines of international criminal law are applied in three very different
domestic judicial institutions in the country of Bosnia-Herzegovina (Bosna i Hercegovina) ---
each with a very different institutional design that can possibly play a role in either magnifying
or diffusing transnational actor influence. The international criminal doctrines of crimes against
humanity, genocide, and war crimes are part of domestic Bosnian law and are directly applicable
although, as this chapter will discuss in detail, the exact form of their application is varied due to
the fragmented nature of the Bosnian judicial system.

The 19th and 20th centuries brought about several key transformations in the country
known today as Bosnia-Herzegovina. Ottoman rule, which began in the 15th century, eventually
gave way to a short period of Austro-Hungarian control. The conclusion of the First World War
saw the creation of a new state in the Balkan Peninsula, Yugoslavia, to which Bosnia-
Herzegovina became an integral part. The early 1990s saw the collapse of Yugoslavia and the
eventual emergence of Bosnia-Herzegovina as an independent state, but not before it was
engulfed in a violent conflict that pitted the various ethnic groups within the country against one
another. The end of this conflict in 1995 led to the limited international stewardship that still
overseas the country today.

Surprisingly, despite the myriad of historical transformations it has undergone, the legal
model in place within Bosnia-Herzegovina has, until very recently, remained fairly stable in its
procedure structure and sources of authority. It would be the international presence overseeing
the country which would spearhead the radical legal changes to the country’s criminal justice
system in 2003. These changes, initiated and driven by transnational actors, had the effect of
attempting to transform the legal model in the country from an inquisitorial one in the French
tradition (broadly characterized in chapter 1 by hierarchical bureaucratic decision-making, broad
evidentiary rules, and reliance on written records), to a more accusatorial one in the English
tradition of decentralized justice (broadly identified in chapter 1 as being characterized by more
party-influenced discretionary decision-making, strict evidentiary rules, and a reliance on oral
arguments). An investigation into the impact of these changes may reveal insights into the ability
of transnational actors to affect lasting domestic policy changes within targeted states, and the
role that institutional design can possibly play in either magnifying or diffusing this influence.

Chapter
INSTITUTIONAL DESIGN IN THE
BOSNIAN COURTS: STAGE 2
4
65
As will be discussed in more detail in this upcoming chapter, in Bosnia-Herzegovina
jurisdiction over cases originating from international criminal offenses committed during the
1990s conflict are handled by three very different sets of judicial institutions. The State-Court of
Bosnia-Herzegovina (Sud Bosne i Hercegovine) is one of the few national institutions in a highly
decentralized country divided into two “entities” or constituent units --- the Republic of Srpska
(Republika Srpska) and Federation of Bosnia-Herzegovina (Federacija Bosne i Hercegovine).
The State-Court is unique as both a “hybrid” judicial institution employing both domestic and
international staff, and as an institution under central governmental control in a country where
most government is conducted on the entity level. Local Bosnian district courts (okružni sudovi)
in the Republic of Srpska and cantonal courts (kantonalni sudovi) in the Federation share neither
the international structure of the State-Court nor are under direct central Bosnian government
control --- being run instead on an entity level. All three institutions are empowered to hear cases
originating from criminal offenses committed in the territory of the former Yugoslavia during the
conflict of the early 1990s and all three courts apply (in theory) the same procedural process (i.e.
criminal procedure) in their criminal prosecutions.

I. Bosnia-Herzegovina: A Historical Overview

Before any analysis on the possible effects of norm-making episodes and institutional
design on the ability of transnational actors to affect domestic state behavior can be undertaken
in the context of the criminal procedure changes initiated in Bosnia in 2003, some discussion on
the context of the Bosnian case must be presented. Bosnia-Herzegovina or BiH has endured
several key transformations in its history from the 19th century to the modern period. Each of
these transformations has emerged as the result of a rupture brought about by either internal
forces, international forces, or a combination of the two. Surveying the history of Bosnia-
Herzegovina one common theme that emerges is the influence of outside forces and actors in the
historical and political development of the region. A province of the Ottoman Turkish Empire
starting in the 15th century, Bosnia-Herzegovina was later incorporated into the new state of
Yugoslavia that emerged in the wake of the First World War. It was as part of Yugoslavia that
Bosnia-Herzegovina would remain until the slide into conflict that accompanied the
disintegration of that state in the early 1990s. The disintegration of Yugoslavia and Bosnia-
Herzegovina’s subsequent independence would unleash forces and processes that continue to
affect the country today.

A. The Austro-Hungarian Period

The country today known as Bosnia-Herzegovina was a province of the Ottoman Turkish
Empire from roughly the 15th century through to the late 19th century.
1
In 1878 the Congress of
Berlin granted the Austro-Hungarian Empire administration (though not sovereignty, which was
still retained by the Ottoman Empire) over the province which was composed of mainly

1
During the Middle Ages the region today comprising Bosnia-Herzegovina was a vassal state (banovina) to the
Kingdom of Hungary, though its rulers excreted such a great deal of autonomy that it had become a de-facto
independent kingdom when it was conquered by the Ottoman Turkish Empire in 1463.

66
Orthodox Christian Serbs, Catholic Croats, and Slavic Muslims.
2
Austria-Hungary formally
annexed Bosnia-Herzegovina in 1908 which then, in part, set off the chain of events that led to
the assassination of the heir to the Austro-Hungarian throne, Archduke Franz Ferdinand in
Sarajevo (the provincial seat) on June 28, 1914. The assassination of Franz Ferdinand in
Sarajevo led directly to the outbreak of the First World War, the conclusion of which saw the
creation of the Kingdom of Yugoslavia (Kraljevina Jugoslavija) from an amalgamation of the
Kingdom of Serbia and the south Slavic territories of the now defunct Austro-Hungarian
Empire.
3

B. The Two Yugoslavias

In many ways the new state, of which Bosnia-Herzegovina was now a part, was a
microcosm of Bosnia itself --- multi-ethnic and multi-confessional --- composed mainly (though
not exclusively) of Orthodox Christian Serbs, Catholic Croats, and Slavic Muslims.
4
The Second
World War saw the Kingdom of Yugoslavia (and Bosnia-Herzegovina in particular) suffer much
destruction at the hands of the German-led Axis forces which over-ran and occupied it.
5
This
occupation would spur the creation of two rival resistance groups --- the Royalist Chetniks
(Četnici) (dominated mainly by former Serbian officers of the Royal Yugoslav Army) and the
Communist (and more Yugoslav orientated) Partisans (Partizani) led by Josip Broz Tito. The
conclusion of the Second World War saw the Partisans victorious over the Chetniks and the
establishment of the Socialist Federal Republic of Yugoslavia (Socijalistička Federativna
Republika Jugoslavija) or SFRJ.
6
The inter-war Kingdom of Yugoslavia had been wracked by

2
For accounts of the history of the three main religious communities in Bosnia-Herzegovina see MITJA VELIKONJA,
RELIGIOUS SEPARATION AND POLITICAL INTOLERANCE IN BOSNIA-HERZEGOVINA (Rang’ichi Ng’inja trans., Texas
A&M University Press 2003); IVAN CVITKOVIĆ, KONFESIJA U RATU (Svjetlo riječi 2004); DINO ABAZOVIĆ, ZA
NACIJU I BOGA: SOCIOLOŠKO ODREĐENJE RELIGIJSKOG NACIONALIZMA 77-109 (Magistrat 2006); SLOBODAN
NAGRADIĆ, RELIGIJA, CRKVA I POLITIKA: RASPRAVE, ČLANCI, POLEMIKE, GOVORI, OSVRTI I IZJAVE, 1981-2006
(GrafoMark 2007).

3
Technically the state established at the close of the First World War on December 1, 1918 was the Kingdom of
Serbs, Croats and Slovenes (Kraljevina Srba, Hrvata i Slovenaca). The name was changed to the Kingdom of
Yugoslavia (Kraljevina Jugoslavija) only in 1929, although colloquially the country had been referred to as
“Yugoslavia” from its very inception. The change of name in 1929 had important implications as it was a direct
consequence of a coup d’etat against the elected government by King Alexander I and the establishment of a royal
dictatorship --- the so-called “January 6 Dictatorship” (Seštojanuarska diktatura). The reasons behind the King’s
coup are complex, but can be boiled down to the struggle between the centralizing tendencies of the Kingdom’s Serb
inhabitants (backed by the King, himself a Serb), versus the desire for a more federal state by the Croats living in the
Kingdom.

4
See JOHN R. LAMPE, YUGOSLAVIA AS HISTORY: TWICE THERE WAS A COUNTRY 131 (Cambridge University Press
1996) (2000) citing ENCIKLOPEDIA JUGOSLAVIJE, VOL. III 263 (Jugoslovenski leksikografski zavod 1983).

5
It should be noted that the Axis forces were, in many instances, supported by local collaborationist groups. The
most prominent of these groups was the Croatian Fascist organization the Ustasha (Ustaša), who were then
permitted to set up a puppet state, the Independent State of Croatia (Nezavisna Država Hrvatska) or NDH.

6
Technically the state established at the close of the Second World War on November 29, 1945 was the Federal
People’s Republic of Yugoslavia (Federativna Narodna Republika Jugoslavija). The name was changed to the
Socialist Federal Republic of Yugoslavia or SFRJ only in 1963 (the SFRJ ceased existence in 1992). Given the fact
67
political disputes amongst the various ethnic groups within it --- most notably between the Serbs
and Croats, as the Kingdom’s Serbian Monarchs had sought to establish a centralized state --- a
move opposed by most of the country’s Croatian citizens.
7
With the establishment of the SFRJ
Tito and the Communist Party, now the unchallenged leaders of the country, wanted to reduce
the ethnic nature of these disputes and so stressed the ideological line of “brotherhood and unity”
(bratstvo i jedinstvo) amongst the ethnic groups and went about establishing a federal state
(though the role of the Communist Party was undiluted as it was soon fixed as the principal
political party in the entire country
8
). With this in mind Tito sub-divided the country into six
constituent “republics,”
9
roughly correspondent to historical, and / or territorial divisions --- one
of which was Bosnia-Herzegovina. Unlike some of the republics of the SFRJ, the ethnic
composition of Bosnia was not homogeneous at all,
10
and in this way it could be said that
Bosnia-Herzegovina was the was, in some ways, the SFRJ in miniature.

In 1948 Tito publicly split from Joseph Stalin and the Soviet Union; thereafter although
the Communist Party retained its central position, the SFRJ began to develop very differently
than either the Soviet Union or its East European satellites. Politically, as a non-aligned state,
standing in-between the Soviet Union and the United States, the SFRJ charted an independent
foreign policy and maintained relations with both the Communist and Capitalist blocs.
Economically the SFRJ came to abandon the Soviet-style centrally planned economic model and
instead developed and followed a more decentralized system of worker self-management
(samoupravljanje)
11
in which the management of state enterprises was put in the hands of the
employees of said enterprises through the institution of the workers council (radnički savet).
12

that, both in the academic literature and colloquially, the most common reference to the state established in 1945 has
been the Socialist Federal Republic of Yugoslavia or SFRJ, said reference shall be adopted here.

7
ALEX N. DRAGNICH, THE FIRST YUGOSLAVIA: SEARCH FOR A VIABLE POLITICAL SYSTEM (Hoover Institution Press
1983); LAMPE, supra note 4, at 129-200; LESLIE BENSON, YUGOSLAVIA: A CONCISE HISTORY 38-56 (Palgrave
2001); ZORAN VELJANOVIĆ, JUGOSLAVIJA: POTREBA ILI ZABLUDA 221-223 (Istorijski arhiv Kikinda 2006); BRANKO
NADOVEZA, FEDERALIZAM I REPUBLIKANIZAM: ALTERNATIVNI PREDLOZI PREUREĐENJA KRALJEVINE JUGOSLAVIJE, I
DEO 10-12 (INIS 2012).

8
For a detailed account of how, in the wake of Partisan victory over Axis forces in the close of the Second World
War, the Communist Party centralized power and systematically co-opted or destroyed any other political opposition
to its hegemony, see VOJISLAV KOŠTUNICA & KOSTA ČAVOŠKI, PARTY PLURALISM OR MONISM: SOCIAL
MOVEMENTS AND THE POLITICAL SYSTEM IN YUGOSLAVIA 1944-1949 (East European Monographs 1985).

9
These republics were: Slovenia, Croatia, Bosnia-Herzegovina, Serbia, Montenegro, and Macedonia.

10
The most recent available census data for Bosnia-Herzegovina (1991) lists the ethnic composition as follows: Serb
(31.4%), Croat (17.3%), Muslim (43.7%), Yugoslav (i.e. other) (5.5%). See DRŽAVNI ZAVOD ZA STATISTIKU
REPUBLIKE BOSNE I HERCEGOVINE, STATISTIČKI BILTEN NO. 234: NACIONALNI SASTAV STANOVNIŠTVA ---
REZULTATI ZA REPUBLIKU PO OPŠTINAMA I NASELJENIM MJESTIMA 1991 (Sarajevo 1991).

11
For a fascinating account on the ideological considerations that contributed to the development of workers self-
management in the SFRJ, see MILOVAN ĐILAS, THE UNPERFECT SOCIETY: BEYOND THE NEW CLASS 221-223
(Dorian Cooke trans., Harcourt, Brace, & World 1969).

12
See e.g. ICHAK ADIZES, INDUSTRIAL DEMOCRACY: YUGOSLAV STYLE (Free Press 1971); Gerry Hunnius,
“Workers” Self-Management in Yugoslavia, in WORKERS’ CONTROL: A READER ON LABOR AND SOCIAL CHANGE
(Gerry Hunnius, G. David Garson, & John Case eds., 1973); LAZO ANTIĆ, SAMOUPRAVNE INTERESNE ZAJEDNICE I
68
The Communist Party was able to retain charge over the system through their control of the local
(municipal) committees that were charged with bargaining for investment funds (from the federal
and republic authorities)
13
and given a leading role in the selection of enterprise directors.
14
Such
political control had consequences, as politically appointed enterprise directors were incentivized
to redistribute enterprise profits to the workers councils rather than reinvest them.
15
The
economic inefficiencies of the system were brought to a head during the late 1970s and early
1980s as a combination of more open trade with the West, lack of domestic investment funds,
high levels of state debt, and high rates of inflation began to lead to economic contraction.
16

C. The Disintegration of Yugoslavia

The leadership vacuum caused by the death of Tito in 1980, combined with the growing
economic problems facing the country, set the stage for the disintegration of the SFRJ in the
early 1990s.
17
Stemming from the inefficiencies of worker self-management, economic
stagnation exacerbated the economic disparities between the republics. These forces in turn
triggered the old conflict between those republics calling for a more centralized state and those
arguing for even greater decentralization. The so-called “anti-bureaucratic revolution”
(antibirokratska revolucija) in Serbia, which brought openly nationalist forces to power in the

NJIHOVA DRUŠTVENO EKONOMSKA FUNKCIJA (Globus 1974); DUŠAN BILANDŽIĆ & STIPE TONKOVIĆ,
SAMOUPRAVLJANJE, 1950-1974 (Globus 1974); MILENTIJE POPOVIĆ, UDRUŽENI RAD I NEPOSREDNA DEMOKRATIJA
(Svjetlost Sarajevo 1975).

13
Generally speaking, investment policy was purposefully designed to benefit the less developed republics. This tilt,
however, did little to change the huge economic disparities between the more well developed republics (i.e.
Slovenia, Croatia, and Serbia) and the less well developed republics (i.e. Bosnia-Herzegovina, Montenegro, and
Macedonia), as official economic policy was also purposefully designed to keep the prices for energy and raw
materials (the chief exports of the less well developed republics) low. See MESUD SABITOVIĆ, SOLIDARNOST I
SAMOUPRAVLJANJE (Svjetlost Sarajevo 1978); LAMPE, supra note 4, at 280-282.

14
MARIJAN KOROŠIĆ, JUGOSLOVENSKA KRIZA 223-228 (ITRO Naprijed 1988); LAMPE, supra note 4, at 256-267;
DRAGAN MARKOVIĆ, SAMOUPRAVLJANJE OD REALNOSTI DO UTOPIJE: POLITIKOLOŠKA MISAO NA JUGOSLOVENSKIM
PROSTORIMA 1945-1990 34-35 (DO Lokalna samouprava 2001).

15
LAMPE, supra note 4, at 282; LJUBO SIRC, DA LI JE KRITIKA SAMOUPRAVLJANJA JOŠ UVEK AKTUELNA? 100-103
(Institut ekonomskih nauka 1997).

16
See IVO PERIŠIN, NOVAC, MONETARNI SISTEM I UDRUŽENI RAD (Informator Zagreb 1978); DRAGOJE ŽARKOVIĆ,
EKONOMSKI SISTEM I KRIZA (Naučna knjiga 1987); SUSAN L. WOODWARD, SOCIALIST UNEMPLOYMENT: THE
POLITICAL ECONOMY OF YUGOSLAVIA 1945-1990 164-259 (Princeton University Press 1995); LAMPE, supra note 4,
at 299-331.

17
The reasons for the disintegration of the SFRJ are numerous and open to debate and dispute. Analysis runs the
gamut from those focused on purely economic factors, to those highlighting the rise of ethnic nationalism (especially
amongst the ethnic Serbian intelligentsia and political class). For an excellent summary highlighting the various
scholarly works on the subject (supplemented by the authors own strong views), see Sabrina P. Ramet, Anti-
Bibliography: Reviewing the Reviews, in BALKAN BABBLE: THE DISINTEGRATION OF YUGOSLAVIA FROM THE
DEATH OF TITO TO THE FALL OF MILOŠEVIĆ (Westwiew Press 2002).

69
republic, only served to heighten these tensions.
18
These forces in Serbia were led by Slobodan
Milošević, a former Communist Party apparatchik, who had sensed the prevailing mood and
transformed into a stalwart Serbian nationalist decrying Serbia’s place in the SFRJ.
19
By 1989,
Milošević and his allies were firmly in power in Serbia and began working on the federal level to
attempt to transform the SFRJ into a much more highly centralized federal union. The rise of
these nationalist forces in Serbia provided fodder for nationalist forces in the other republics
(who could point to the old specter, in place since the establishment of the first Yugoslavia in
1918, of Serbia trying to dominate the union). In 1990, these tensions, coupled with the collapse
of the hegemony of the Communist Party and subsequent multi-party elections (on the republic
level), led to openly nationalist forces coming to power in the other republics --- the end result
being the collapse of the SFRJ, as the various republics began to declare independence.
20

The first republic to leave was Slovenia (which declared independence on June 25, 1991),
followed later by Macedonia (September 8, 1991), Croatia (October 7, 1991), and Bosnia-
Herzegovina (March 3, 1992).
21
The secessions of Slovenia and Macedonia were (relatively)
bloodless affairs, but the declarations of independence of Croatia and Bosnia-Herzegovina, with
their more ethnically non-homogeneous populations,
22
led to the eruption of violence. The
conflict in Bosnia-Herzegovina was especially violent, as the three main ethnic groups (the
Serbs, Croats, and Bosnian Muslims) fought a particularly vicious conflict amongst
themselves.
23
This conflict, which would stretch on for well over three years, would result in the
commission of massive international criminal offenses and the death and displacement of

18
For an excellent account of the “anti-bureaucratic revolution” in Serbia, see NEBOJŠA VLADISAVLJEVIĆ, SERBIA’S
ANTIBUREAUCRATIC REVOLUTION: MILOŠEVIC, THE FALL OF COMMUNISM AND NATIONALIST MOBILIZATION
(Palgrave-Macmillan 2008).

19
Grievances in Serbia stemmed mainly from the 1974 SFRJ Constitution. The Constitution had transformed the
SFRJ into a highly decentralized federation and diluted Serbia’s power within it by splitting off two “autonomous
provinces,” Vojvodina and Kosovo, from Serbia and then giving these two provinces quasi-equal status (in the
SFRJ) with the other republics.

20
For critical accounts of the role of the international community in the recognition of the various republics as they
declared independence from the SFRJ, see PETER RADAN, THE BREAK-UP OF YUGOSLAVIA AND INTERNATIONAL
LAW (Routledge 2002); RICHARD CAPLAN, EUROPE AND THE RECOGNITION OF NEW STATES IN YUGOSLAVIA
(Cambridge University Press 2005).

21
The republics of Serbia and Montenegro never declared independence from the SFRJ and instead, on April 27,
1992, promulgated a new federal constitution replacing the SFRJ with the newly created Federal Republic of
Yugoslavia (Savezna Republika Jugoslavija) or SRJ. On February 4, 2003 a looser federal union between the two
republics was established which renamed the country the State-Union of Serbia-Montenegro (Državna Zajednica
Srbija i Crna Gora) or SCG. This final federation was dissolved in June 3, 2006 when Montenegro declared
independence and left the union. Accepting the fait accompli, Serbia itself declared independence two days later on
June 5, 2006.

22
See YUGOSLAV SURVEY (NO. 1), THE NATIONAL COMPOSITION OF YUGOSLAVIA’S POPULATION (Belgrade 1992).

23
As with the disintegration of the SFRJ, there are numerous accounts of the conflict in Bosnia-Herzegovina which
range in gamut in assigning responsibility, both for the eruption of fighting in the first place, and the worst excesses
of the conflict. For a review of these various accounts, see DAVID CAMPBELL, NATIONAL DECONSTRUCTION:
VIOLENCE, IDENTITY, AND JUSTICE IN BOSNIA 44-81 (University of Minnesota Press 1998).

70
thousands of people. Particularly egregious wartime actions included the siege of Sarajevo,
Bosnia-Herzegovina’s capital and largest city, by Serb forces for the duration of the conflict;
24

the 1992-1993 siege of Mostar by Croat forces; the 1992 “ethnic cleansing”
25
campaign in
Eastern Bosnia by Serb forces; the 1992-1993 “ethnic cleansing” campaign in central Bosnia by
Croat forces; and the 1995 Srebrenica massacre where around 8,000 Bosnian Muslim men and
boys were systematically murdered (over a three day period) when Serb forces attacked and
captured the eastern city of Srebrenica where the victims had gathered (the majority of victims
were internal refugees from other parts of Bosnia that had fled to Srebrenica to escape the
fighting in other parts of the country). All three of the warring parties in the Bosnian conflict
were notable for their deliberate targeting of civilians (including systematic murder and mass
rapes) and use of concentration camps to brutalize both captured civilians and enemy
combatants.

In November 1995 the warring parties, prodded by the United States, European Union,
and Russian Federation, signed a peace treaty that would come to be known as the Dayton
Agreement (after the American town where the Agreement was negotiated and initialed). The
Dayton Agreement recognized Bosnia-Herzegovina as an independent state, but established a
decentralized system of government in which power was divided between the three main ethnic
groups; the new state structure would also be subject to rigorous international oversight.
26
The
Dayton Agreement is monitored through what is known as the Peace Implementation Council
(PIC), which consists of a group of countries
27
and international organizations
28
that oversee the
peace implementation process in Bosnia-Herzegovina. In actual fact, however, real oversight is
exercised by the PIC’s Steering Board
29
which meets several times a year (as opposed to the full

24
The siege of Sarajevo was especially brutal on the city’s civilian population, who were subject to deliberate sniper
and mortar attacks by the besieging forces. In one particularly nasty incident, a mortar attack on a crowded
marketplace (the “Markale massacre”) in 1994 left 68 civilians dead and a further 144 wounded.

25
“Ethnic cleansing” was a particularly nasty phenomenon to emerge from the conflict and involved the forced
expulsion (usually through intimidation and / or murder) of undesirable ethnic groups from a particular region. The
end goal was to “cleanse” the region of the undesirable ethnic group.

26
See The General Framework Agreement for Peace in Bosnia and Herzegovina, 50th Sess., Agenda Item 28, U.N.
Doc. S/1995/999 (Dec. 14, 1995).

27
The Peace Implementation Council is composed of the following countries: Albania, Austria, Belgium, Bosnia-
Herzegovina, Bulgaria, Canada, Croatia, Czech Republic, Denmark, Egypt, Serbia, Finland, Macedonia, France,
Germany, Greece, Hungary, Ireland, Italy, Japan, Jordan, Luxembourg, Malaysia, Morocco, Netherlands, Norway,
Oman, Pakistan, Poland, Portugal, Romania, Russian Federation, Saudi Arabia, Slovak Republic, Slovenia, Spain,
Sweden, Switzerland, Turkey, Ukraine, United Kingdom, and United States of America.

28
The Peace Implementation Council is composed of the following international organizations: United Nations High
Representative for Bosnia-Herzegovina, Council of Europe, European Bank for Reconstruction and Development,
European Commission, International Committee of the Red Cross, International Criminal Tribunal for the former
Yugoslavia, International Monetary Fund, North Atlantic Treaty Organization, Organization for Security and Co-
operation in Europe, United Nations, United Nations High Commissioner for Human Rights, United Nations High
Commissioner for Refugees, and World Bank.

29
The Peace Implementation Council’s Steering Board is composed of: Canada, France, Germany, Italy, Japan,
Russia, United Kingdom, United States of America, Presidency of the European Union, European Commission, and
Turkey (representing the Organization of the Islamic Conference).
71
PIC which has only ever met six times since its establishment in 1995). The on the ground
enforcement of the Dayton Agreement is ensured by a European Union led military deployment
force (EUFOR Althea). EUFOR Althea consists of around 2,500 troops and is the successor to
the North Atlantic Treaty Organization (NATO) force that first oversaw the enforcement of the
Dayton Agreement from 1996 through to 2004.
30

D. Bosnia-Herzegovina under the Dayton Agreement

Bosnia-Herzegovina as established by the Dayton Agreement is a highly decentralized
federal state that is comprised of a weak central government and two “entities” or constituent
units: the Republic of Srpska (Republika Srpska),
31
and the Federation of Bosnia-Herzegovina
(Federacija Bosne i Hercegovine)
32
. The two entities
33
are historically rooted in the violence that
engulfed Bosnia-Herzegovina when, as a republic in the SFRJ, it declared independence in
March 1992. The Republic of Srpska has its origins in the ethnic Serb side in the conflict which
had been opposed to the declaration of independence. The majority of the ethnic Serb parties had
boycotted the Bosnian republic parliament when, as a precursor to declaring independence from
the SFRJ, it had adopted a Memorandum on Sovereignty (Memorandum o suverenosti) in
October 1991. These Serb parties had then gone on to form the Assembly of the Serb People in
Bosnia-Herzegovina (Skupština srpskog naroda u Bosni i Hercegovini),
34
as a precursor to
separating themselves out of a Bosnian republic that they saw committed to an independence
from the SFRJ that they did not agree with.
35
Mirroring the Republic of Srpska, the Federation of
Bosnia-Herzegovina has its origins in the ethnic Bosnian Muslim sides in the conflict which had
originally supported the declaration of independence. Upon independence in March 1992, the
central government of the newly declared Republic of Bosnia-Herzegovina (Republika Bosna i
Hercegovina) had to contend with both Serb forces bent on defying the independence declaration

30
See The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at Annex 1A
(Agreement on the Military Aspects of the Peace Settlement).

31
Id. at Annex 4 (Constitution of Bosnia-Herzegovina), art. 3.

32
Id.

33
It should be noted here the special status of the Brčko District (Brčko distrikt), which is a self-governing
administrative unit formally part of both entities (i.e. the Republic of Srpska and Federation of Bosnia-
Herzegovina). The origins of the unique status of the Brčko District lie in the Dayton Agreement which set up an
arbitral tribunal to agree on which entity would receive the disputed area. In 1999 the panel made its final ruling
which held that the District would be part of both entities but, under the sovereignty of the central Bosnian
government, function as a separate self-governing administrative unit with its own laws and independent police
force. See Arbitral Tribunal for Dispute Over Inter-Entity Boundary in Brčko Area (Final Award, Mar. 5, 1999).

34
The Assembly of the Serb People in Bosnia-Herzegovina would eventually transform into the Republic of Srpska
in August 1992.

35
For the ethnic Croat and Bosnian Muslim parties, continued membership within a rump SFRJ, composed only of
the republics of Serbia and Montenegro (as the republics of Slovenia, Macedonia, and Croatia had already declared
independence) was a non-starter. The power of the Serbs within such a state (given their superiority in numbers with
the exits of Slovenia, Macedonia, and Croatia) would be hegemonic.

72
and, additionally, Croat forces who also did not support the new state.
36
Alternating between
wartime allies and opponents, the Croat and Bosnian Muslim sides, in March 1994, permanently
came together as allies in the conflict (against the Serbs) and formed the Federation of Bosnia-
Herzegovina.

1. The Central Government

The Constitution of Bosnia-Herzegovina (Ustav Bosne i Hercegovine) agreed to at
Dayton and contained within Annex 4 of the Agreement reserves, for the central government,
competency in the areas of foreign policy, foreign trade, customs, monetary policy, refugee /
asylum policy, international and inter-entity law enforcement, and transportation.
37
The entities
are given competence in “all governmental functions and powers” not expressly assigned to the
central government.
38
In practice this institutional arrangement is one in which the central
government is severely limited in its powers, and most decision-making of any importance takes
place on the entity level.
39
The key institutions of the central government are a bi-cameral
legislature (where the upper house is appointed by the entity level parliaments, and the lower
house is directly elected by voters in the two entities),
40
a collective presidency (composed of
three members, representing the three main ethnic groups),
41
and a ministerial council
(cabinet)
42
. An “ethnic formula” guarantees representation for all of the three main ethnic groups

36
For well-researched accounts of the fighting and eventual reconciliation between the Croat and Muslim sides, see
CHARLES R. SHRADER, THE MUSLIM-CROAT CIVIL WAR IN CENTRAL BOSNIA: A MILITARY HISTORY, 1992-1994
(Texas A&M University Press 2003).

37
The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at Annex 4
(Constitution of Bosnia-Herzegovina), art. 3(1).

38
Id. at Annex 4 (Constitution of Bosnia-Herzegovina), art. 3(3).

39
DAVID CHANDLER, BOSNIA; FAKING DEMOCRACY AFTER DAYTON 66-89 (Pluto Press 1999); ROBERT M.
HAYDEN, BLUEPRINTS FOR A HOUSE DIVIDED: THE CONSTITUTIONAL LOGIC OF THE YUGOSLAV CONFLICTS 126
(University of Michigan Press 2000); SNEŽANA S. SAVIĆ, DEJTONSKA BOSNA I HERCEGOVINA 46-48 (Pravni
Fakultet Banja Luka 2003); ROBERTO BELLONI, STATE BUILDING AND INTERNATIONAL INTERVENTION IN BOSNIA
43-72 (Routledge 2007).

40
The two houses of the central government legislature are the 15 member House of Peoples (Dom naroda), with 5
members from the Republic of Srpska and 10 members from the Federation of Bosnia-Herzegovina, and the 42
member House of Representatives (Predstavnički dom), with 14 members from the Republic of Srpska and 28
members from the Federation. See The General Framework Agreement for Peace in Bosnia and Herzegovina, supra
note 26, at Annex 4 (Constitution of Bosnia-Herzegovina), arts. 4(1), 4(2).

41
The central government collective presidency (Predsedništvo) is directly elected. One Croat and Bosnian Muslim
are directly elected from the territory of the Federation, and one Serb is directly elected from the territory of the
Republic of Srpska; with each member rotating as “chairman” of the presidency every eight months. The powers of
the collective presidency are fairly limited, though it does propose to the legislature a candidate for chair of the
ministerial council. See The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at
Annex 4 (Constitution of Bosnia-Herzegovina), art. 5.

42
The Council of Ministers (Veće ministara) contains 16 ministries divided between Serbs, Croats, and Bosnian
Muslims. See The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at Annex 4
(Constitution of Bosnia-Herzegovina), art. 5.

73
(i.e. the Serbs, Croats, and Bosnian Muslims) in the key institutions of the central government
and also provides each ethnic group with a veto in said institutions in they judge their “vital
interests” to be at risk.
43
Though this ethnic formula is also heavily utilized in the entities,
44
it
has come under recent international criticism.
45
At the central government level, one of the chief
outcomes of the “vital interests” veto each ethnic group possesses has been a fragmented central
government that has been unable to legislate on important issues in any meaningful way.
46

2. The Entities

The two entities, though formerly part of a single Bosnian state, are structured in
radically different ways. The Republic of Srpska is highly centralized, with a bi-cameral
parliament
47
and unitary presidency
48
. The presidency has limited powers, though the president
does exercise the significant power of proposing (to the parliament) a candidate for prime
minister who then forms a government.
49
In stark contrast to the Republic of Srpska, the
Federation is highly decentralized with power divided between a weak federative government

43
See The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at Annex 4
(Constitution of Bosnia-Herzegovina), arts. 4-5.

44
For a description of the entity level political institutions organized on the basis of ethnic formulas, see Ustav
Republike Srpske [Constitution of the Republic of Srpska], Službeni glasnik Republike Srpske [Official Gazette of
the Republic of Srpska], No. 21/92, 28/94, 8/96, 13/96, 15/96, 16/96, 21/96, 21/02, 31/02, 31/03, 98/03, 115/05, &
117/05, arts. 5, 69, 70, 71, 80, 115; Ustav Federacije Bosne i Hercegovine [Constitution of the Federation of Bosnia-
Herzegovina], Službene novine Federacije BiH [Official Gazette of the Federation of BiH], No. 1/94, 13/97, 16/02,
22/02, 52/02, 63/03, 9/04, 20/04, 33/04, 71/05, 72/05, & 88/08, §§ II(B)(1), IV(A)(1), IV(A)(6), IV(A)(17a),
IV(B)(1), IV(B)(2), IV(B)(4).

45
See Sejdić and Finci v. Bosnia-Herzegovina, App. No. 27996/06 & 34836/06 (Eur. Ct. H.R., Dec. 22, 2009)
(Where the European Court of Human Rights held that a number of the ethnic formula guarantees within the
Bosnian Constitution were violative of Protocol 12 and Article 14 the European Convention of Human Rights. The
Court found the fact that the Bosnian Constitution reserved the central government collective presidency, and
membership in the upper house of the central government legislature, only for members of the three main ethnic
groups, was discriminatory to national minorities who were neither Serbs, Croats, nor Bosnian Muslims. The case
was brought forth by Dervo Sejdić and Jacob Finci, leading members of the Roma and Jewish communities in
Bosnia-Herzegovina.).

46
FLORIAN BIEBER, POST-WAR BOSNIA: ETHNICITY, INEQUALITY, AND PUBLIC SECTOR GOVERNANCE (Palgrave
2006); BELLONI, supra note 39, at 46-47; ZARIJE SEIZOVIC, EUROPEAN TRAINING AND RESEARCH CENTRE FOR
HUMAN RIGHTS AND DEMOCRACY (HUMSEC), CONSTITUTIONAL REFORM IN BOSNIA AND HERZEGOVINA: “CIVIL
STATE” OF CONSTITUENT PEOPLES (2007). In 2006 the United States and European Union attempted to convince the
three main ethnic groups to negotiate a package of reforms to the Bosnian Constitution that would dilute their “vital
interests” veto and strengthen the central government (at the expense of the entities). This so-called “April Package”
failed ratification by two votes in the central government legislature.

47
The two houses of the Republic of Srpska parliament are the 55 member Senate (Senat) and the 83 member
National Assembly (Nаrodnа skupštinа). See Ustav Republike Srpske, supra note 44, at arts. 69-79.

48
The President (Predsednik) is directly elected from voters in the territory of the Republic of Srpska. See Ustav
Republike Srpske, supra note 44, at arts. 69, 80-89.

49
Though the parliament must agree to the candidate and the government formed. See Ustav Republike Srpske,
supra note 44, at art. 80.

74
and 10 “cantons” which each have their own constitutions, assemblies, and governments.
50
At
the center, the structure of the federative government consists of a bi-cameral parliament
51
and
an indirectly elected president
52
. The key role of the president is to propose (to the parliament) a
candidate for prime minister who then goes on to form the government.
53

3. The High Representative

Standing at the top of the political hierarchy in Bosnia-Herzegovina is the UN High
Representative, whose position and powers are codified in Annex 10 of the Dayton Agreement.
54

The High Representative, nominated by the PIC Steering Board and appointed by the UN
Security Council, is tasked with coordinating, amongst both the relevant national and
international actors, the execution of the Dayton Agreement.
55
To this end, the High
Representative is tasked with monitoring the implementation of the agreement, ensuring
compliance with the agreement, coordinating with international organizations and agencies
operating in the country, participating in international donor meetings (related in the
reconstruction of the country), and periodically reporting on the progress of the agreement’s
implementation.
56
To assist in the fulfillment of this broad mandate, the High Representatives
powers under Annex 10 were, in 1997, “clarified” by the PIC. This clarification granted the High
Representative the so-called “Bonn Powers,” which gave him the power to remove public
officials from office, and unilaterally impose laws if he judged that the country’s legislative
bodies had failed to reach agreement on important issues.
57
These actions of the PIC in

50
See Ustav Federacije Bosne i Hercegovine, supra note 44, at § V.

51
The two houses of the Federation parliament are the 58 member House of Peoples (Dom naroda) and the 98
member House of Representatives (Predstavnički dom). See Ustav Federacije Bosne i Hercegovine, supra note 44,
at § IV.

52
The President (Predsednik) is elected by the upper house of the Federation parliament (the House of Peoples). See
Ustav Federacije Bosne i Hercegovine, supra note 44, at § IV.

53
Though the parliament must agree to the candidate and the government formed. See Ustav Federacije Bosne i
Hercegovine, supra note 44, at § IV.

54
See The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at Annex 10
(Agreement on Civilian Implementation).

55
By tradition, the position of High Representative is held by a European, while the position of Principal Deputy
High Representative (which also serves as the International Supervisor of the Brčko District) is held by an
American. Since 2002, the person serving as High Representative has also, at the same time, served as the European
Union Special Representative (EUSR) to Bosnia-Herzegovina. The fusion of the High Representative and EUSR is
significant in that the European Union is the key underwriter of Bosnia-Herzegovina’s post-war reconstruction
through its significant economic assistance (in excess of several billion euro) and its leadership of both the EUFOR
Althea military deployment discussed earlier and a significant police training mission (the European Union Police
Mission or EUPM).

56
The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at Annex 10
(Agreement on Civilian Implementation), art. II(1).

57
PIC Bonn Conclusions: Bosnia and Herzegovina 1998: Self-Sustaining Structures, Peace Implementation Council
(Dec. 10 1997), § XI(2).
75
“clarifying” Annex 10 and subsequently granting the High Representative the “Bonn Powers”
were later endorsed by the UN Security Council.
58

In the years since 1997, various High Representatives have made extensive use of their
Bonn Powers by both removing numerous public officials from office (178 as of January 2013);
and by imposing numerous laws (672 as of January 2013) in such diverse issue areas as the
constitutional division of power, national symbols, economic development, judicial reform,
media regulation, property distribution, and war crimes.
59
The willingness of numerous High
Representatives post-1997 to bypass the domestic political institutions of the Bosnian state has
been criticized by some as an undemocratic and even imperialistic intrusion on Bosnian
sovereignty and state building,
60
and praised by others as a necessary political mechanism in a
state still reeling from the legacy of war and a fragmented central government unable to
compromise and legislate on important issues.
61
Currently the role of the High Representative is
in flux, for although both the international community and the domestic Bosnian political
establishment both agree that the position must, at some point, be phased out and domestic actors
and institutions allowed to fully function, fragmentation and all, the actual timing on when this
should happen has been subject to debate.
62
This being said, it should be noted that the use of the
Bonn Powers by the High Representative has declined markedly in the past four years as the
international community has tried to begin the process of transitioning to fully domestic political
actors and institutions.
63

58
See S.C. Res. 1174, U.N. SCOR 53rd Sess., 3892nd mtg., U.N. Doc. S/RES/1174 (Jun. 15, 1998).

59
For a complete listing, see http://www.ohr.int/.

60
See CHANDLER, supra note 39; EUROPEAN STABILITY INITIATIVE, RESHAPING INTERNATIONAL PRIORITIES IN
BOSNIA AND HERZEGOVINA: THE END OF THE NATIONALIST REGIMES AND THE FUTURE OF THE BOSNIAN STATE
(2001); Ralph Wilde, Representing International Territorial Administration: A Critique of Some Approaches, 15
EUR. J. INT’L L. 71, 87-88 (2004); David Chandler, State-Building in Bosnia: The Limits of “Informal Trusteeship,”
11 INT’L J. P. STUD. 17 (2006); STEFANO RECCHIA, EUROPEAN UNION INSTITUTE FOR SECURITY STUDIES, BEYOND
INTERNATIONAL TRUSTEESHIP: EU PEACEBUILDING IN BOSNIA AND HERZEGOVINA (2007); GIULIO VENNERI,
CYPRUS CENTER OF EUROPEAN AND INTERNATIONAL AFFAIRS, MODELING STATES FROM BRUSSELS?: A CRITICAL
ASSESSMENT OF THE EU DRIVEN STATE-BUILDING OF BOSNIA AND HERZEGOVINA (2007); EUROPEAN STABILITY
INITIATIVE, THE WORST IN CLASS: HOW THE INTERNATIONAL PROTECTORATE HURTS THE EUROPEAN FUTURE OF
BOSNIA AND HERZEGOVINA (2007); INTERNATIONAL CRISIS GROUP, BOSNIA’S DUAL CRISIS (2009).

61
See Richard Caplan, From Collapsing States to Neo-Trusteeship: The Limits to Solving the Problem of
“Precarious Statehood” in the 21st Century, 28 THIRD WORLD Q. 231, 239 (2007).

62
In June 2006 the PIC Steering Board announced that the position of the High Representative would be phased out
within a year, but eight months later reversed this decision and announced that the status of the position would be
reviewed year to year in light of the situation on the ground --- to date, five years later, the position still remains. See
Communiqué of the PIC Steering Board, Peace Implementation Council Steering Board (Jun. 23, 2006);
Communiqué of the PIC Steering Board, Peace Implementation Council Steering Board (Feb. 27, 2007).

63
From January 2009 to January 2013, the High Representative removed 18 public officials from office (out of a
total of 178 since the establishment of the Bonn Powers in 1997) and imposed 37 laws (out of a total of 672 since
the establishment of the Bonn Powers in 1997). For a fascinating statistical breakdown of the decision-making of the
High Representative through the use of the Bonn Powers (from 1997 current through to 2009), organized
longitudinally and by issue area, see BART M.J. SZEWCZYK, EUROPEAN UNION INSTITUTE FOR SECURITY STUDIES,
THE EU IN BOSNIA AND HERZEGOVINA: POWERS, DECISIONS, AND LEGITIMACY 35-48 (2010)
76

Figure 4.01 below presents a simplified representation of the political structure of
Bosnia-Herzegovina under the Dayton Agreement:

77
Figure 4.01: The Political Structure of Bosnia-Herzegovina under the Dayton Agreement

INTERNATIONAL
COMMUNITY

OFFICE OF THE HIGH
REPRESENTATIVE

CENTRAL GOVERNMENT

ENTITY
64
Republic of Srpska Federation of Bosnia-Herzegovina

MUNICIPALITY

Voters: Republic of Srpska

64
For the sake of brevity, the political structure of the Brčko District has not been included.
Peace
Implementation
Council (PIC)
PIC Steering Board
High Representative
Principal Deputy High
Representative
Administrative Staff
Council of
Ministers (Veće
ministara)
Collective
Presidency
(Predsedništvo)
House of
Representatives
(Predstavnički
dom)
House of Peoples
(Dom naroda)
Government
(Vlada)
President
(Predsednik)
Government
(Vlada)
President
(Predsednik)
House of Peoples
(Dom naroda)
House of
Representatives
(Predstavnički
dom)
National
Assembly
(Nаrodnа
skupštinа)
Senate (Senat)
10 Cantonal
Assemblies
(Kantonalne
skupštine)
Municipal
Councils
(Opštine)
Municipal
Councils
(Opštine)
Voters: Federation of Bosnia-Herzegovina
78
II. Bosnia-Herzegovina: A Legal Overview

Despite its numerous historical transformations from the 19th century to the modern
period, the legal model in place within Bosnia-Herzegovina has, until very recently, remained
fairly stable in its procedure structure and sources of authority. It would only be the conflict of
the early 1990s its aftermath that would put the country on the road to a radical rethink of its
legal system in 2003.

A. The Austro-Hungarian Period and the Inquisitorial / Accusatorial Divide:
Historical Antecedents

Surprisingly, the transition from Ottoman Turkish to Austro-Hungarian rule in 1878
brought little change to the legal system in place in Bosnia-Herzegovina. The late Ottoman
period had been a time of political and legal reform throughout the Empire and, as a result, the
reformed Ottoman Criminal Code of 1851 and Criminal Procedure Code of 1879 were both
largely based on the French Codes of the same name --- the Criminal Code of 1810 (Code pénal)
and Criminal Procedure Code of 1803 (Code d’instruction criminelle), with many provisions
being more or less a direct copies.
65
The influence of the French inquisitorial legal model was
widespread on Continental Europe during this time,
66
and so, it is no surprise that late 19th
century Austrian Code of Criminal Procedure (Strafprozessordnung) was also modeled after the
French Code of the same name.
67
France was held as a legal model due to the codification and
reform of the law that had occurred there in the wake of the French Revolution and Napoleonic
Period.
68

B. The Two Yugoslavias and the Persistence of the Inquisitorial Model

The legal system in place in the Austro-Hungarian province of Bosnia-Herzegovina on
the eve of the First World War was an inquisitorial one inspired by the great French post-
revolutionary codes. Though the assassination of Archduke Franz Ferdinand in Sarajevo would
ignite far reaching and consequential changes in both the region and the world at large, one thing
that remained constant in Bosnia-Herzegovina as it transitioned from part of the Austro-
Hungarian Empire to part of the newly formed Kingdom of Yugoslavia was its legal system. The
Kingdom of Yugoslavia had been formed at the close of the First World War from an
amalgamation of the Kingdom of Serbia and the south Slavic territories of the now defunct
Austro-Hungarian Empire. The old Serbian Criminal Procedure Code of 1865 (Zakonik o

65
John A. Strachey Bucknill & Haig Apisoghom S. Utidjian, Introduction, in THE IMPERIAL OTTOMAN PENAL
CODE: A TRANSLATION FROM THE TURKISH TEXT xv-xvi (John A. Bucknill & Haig A.S. Utidjian trans., Oxford
University Press 1913); A. ESMEIN, A HISTORY OF CONTINENTAL CRIMINAL PROCEDURE WITH SPECIAL REFERENCE
TO FRANCE 592 (John Simpson trans., Little, Brown, & Company 1913).

66
See ESMEIN, supra note 65, at 570-605.

67
Id. at 580-581.

68
See CATHERINE ELLIOTT, FRENCH CRIMINAL LAW 8-9 (Willan Publishing 2001); SARAH SUMMERS, FAIR TRIALS:
THE EUROPEAN CRIMINAL PROCEDURAL TRADITION AND THE EUROPEAN COURT OF HUMAN RIGHTS 24-29 (Hart
Publishing 2007).

79
postupku sudskom u krivičnim delima) had been modeled directly on the Austrian Code of the
same name which, as has been discussed, was itself modeled on the canonic French post-
revolutionary Criminal Procedure Code of 1803.
69
This legal continuity continued when, in
1929, the Yugoslav King Alexander I sought to unify the criminal procedures of the former
Serbian and Austro-Hungarian territories that made up his new Kingdom --- not surprisingly, the
model that was turned to was the late 19th century Austrian Criminal Procedure Code.
70
Indeed,
the Austrian influence on the new Yugoslav state’s legal system during this period was further
cemented when the Kingdom decided to emulate the Austrian model in the organization of its
courts.
71

With the ascendance of the Yugoslav Communist Party and the establishment of the
SFRJ at the close of the Second World War, new influences were introduced into the Yugoslav
legal system that sought to directly challenge the French / Austrian inquisitorial model at the
heart of the system. The victorious Yugoslav Communist party initially wanted to establish a
purely socialist legal
72
system on the Soviet model.
73
Such a system would seek to combat the
ways in which the ruling classes (as identified under classic Marxist theory) used law to affect
control over the means of production, and judge criminal offenses as not being the result of
immoral individuals, but rather the result of an unequal and immoral society. To this end, the
authorities enacted a new Criminal Procedure Code in 1948
74
that sought to de-emphasize the
role of the professional judiciary in favor of highly politicized People’s Courts (Narodni sudovi)
controlled by the Communist Party.
75

69
Frank R. Lacy, Yugoslavia: Practice and Procedure in a Communist Country, 43 OR. L. REV. 1, 26 (1963);
VLADIMIR BAYER, JUGOSLOVENSKO KRIVIČNO PROCESNO PRAVO, KNJIGA DRUGA 24 n.20 (2nd ed. 1978); ZAGORKA
SIMIĆ-JEKIĆ, KRIVIČNO PROCESNO PRAVO SFRJ 18 (2nd ed. 1985); Zoran Stojanović, Obrad Perić, & Djordje
Ignjatović, Criminal Law (Yugoslavia), in INTERNATIONAL ENCYCLOPEDIA OF LAWS (CRIMINAL LAW) para. 55
(Roger Blanpain & Michele Colucci eds., 1993).

70
SIMIĆ-JEKIĆ, supra note 69, at 18; Stojanović, Perić, & Ignjatović, supra note 69, at para. 58.

71
NIKOLA SRZENTIĆ, ORGANIZATION OF LAW COURTS IN YUGOSLAVIA 5 (Štamparija JZ 1955).

72
A socialist legal system is one in which, in theory, uses as its point of departure the factual inequality of the
working classes rather than formal concepts of the equality of the classes. The “law” should work to structure
society in a way that ensures that it meets the needs of all its citizens. Following a classic Marxist analysis, control
over the industrial means of production is judged to be the primary vehicle through which the ruling classes exploit
the working class. See HAROLD J. BERMAN, JUSTICE IN THE U.S.S.R.: AN INTERPRETATION OF SOVIET LAW (Harvard
University Press 1963); JOHN QUIGLEY, SOVIET LEGAL INNOVATION AND THE LAW OF THE WESTERN WORLD
(Cambridge University Press 2007).

73
SIMIĆ-JEKIĆ, supra note 69, at 18; DRAGOLJUB V. DIMITRIJEVIĆ, MILICA STEFANOVIĆ-ZLATIĆ, & ĐORĐE LAZIN,
KRIVIČNO PROCESNO PRAVO para. 75 (11th ed. 1990).

74
See Zakon o krivičnom postupku FNRJ [Criminal Procedure Code of the FNRJ], Službeni list FNRJ [Official
Gazette of the FNRJ], No. 97/48.

75
See Lenard J. Cohen, Judicial Elites in Yugoslavia: The Professionalization of Political Justice, 11 REV.
SOCIALIST L. 313, 321-323 (1985); Stojanović, Perić, & Ignjatović, supra note 69, at para. 63.

80
With Tito’s public split from Joseph Stalin and the Soviet Union, the Soviet inspired
socialist legal model that had been imposed through the Criminal Procedure Code of 1948 was
soon shelved, and the French / Austrian inquisitorial model quickly regained its predominance.
In 1953 a new Criminal Procedure Code (Zakon o krivičnom postupku) was enacted
76
that
assertively put an end to the Soviet inspired socialist legal model and returned the Yugoslav legal
system to its French / Austrian inquisitorial roots.
77
Although another Yugoslav Criminal
Procedure Code was enacted in 1977 (with minor amendments put in place in throughout the
1980s),
78
the differences between the 1977 Code and the 1953 Code were purely cosmetic.
79

When the SFRJ disintegrated in the early 1990s then, the criminal procedural code in place was
the 1977 Code which was very much in the French / Austrian inquisitorial model.

C. Bosnia-Herzegovina under the Dayton Agreement: The 2003 Legal Changes

The signing of the Dayton Agreement and the end of the conflict in Bosnia-Herzegovina
left a country struggling to rebuild in the wake of a destructive war. The Bosnian legal system
during the years immediately following the conflict was marked by “inconsistency in the
application of law, corrupt and incompetent courts, a fragmented judicial space, half-baked or
half-implemented reforms, and sheer negligence.”
80
In 2001 the then High Representative,
Austrian Wolfgang Petritsch, used his Bonn Powers to set up an Independent Judicial
Commission (IJC) in order to oversee and coordinate the process of reforming the courts.
81

Although the IJC’s work resulted in a significant number of unqualified judges being removed
from office,
82
the reform process was still judged as not having gone far enough, especially in
the area of criminal justice, where chronic issues like undue political influence, corruption, and
the intimidation of judges and prosecutors had festered for years.
83
In May 2002, Briton Paddy

76
See Zakon o krivičnom postupku FNRJ [Criminal Procedure Code of the FNRJ], Službeni list FNRJ [Official
Gazette of the FNRJ], No. 40/53.

77
Lacy, supra note 69, at 26; SIMIĆ-JEKIĆ, supra note 69, at 19; Stojanović, Perić, & Ignjatović, supra note 69, at
para. 63.

78
See Zakon o krivičnom postupku SFRJ [Criminal Procedure Code of the SFRJ], Službeni list SFRJ [Official
Gazette of the SFRJ], No. 4/77.

79
DIMITRIJEVIĆ, STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note 73, at para. 75; Stojanović, Perić, & Ignjatović, supra
note 69, at para. 65.

80
INTERNATIONAL CRISIS GROUP, COURTING DISASTER: THE MISRULE OF LAW IN BOSNIA & HERZEGOVINA 1
(2002).

81
See Decision Providing the Independent Judicial Commission (IJC) with a Comprehensive Mandate, Office of the
High Representative (Mar. 14, 2001).

82
For more detail into the work of the IJC during this period, see Alexander Mayer-Rieckh, Vetting to Prevent
Future Abuses: Reforming the Police, Courts, and Prosecutor’s Offices in Bosnia and Herzegovina, in JUSTICE AS
PREVENTION: VETTING PUBLIC EMPLOYEES IN TRANSITIONAL SOCIETIES 195-203 (Alexander Mayer-Rieckh &
Pablo de Greiff eds., 2007).

83
See e.g. UNITED NATIONS MISSION TO BOSNIA AND HERZEGOVINA, JUDICIAL SYSTEM ASSESSMENT PROGRAM
THEMATIC REPORT VIII: PROSECUTING CORRUPTION (2000) (Describing the political influence exerted on Bosnian
judges by politicians, and how this influence extends to even to direct interference in criminal investigations.);
81
Ashdown took office as Bosnia-Herzegovina’s fourth High Representative and began a new push
to accelerate the legal reform process. The criminal procedure in place in place in Bosnia-
Herzegovina during this immediate (c. 2002) post-war period was the pre-war French / Austrian
inquisitorial model inherited from the SFRJ. Indeed, the criminal procedure codes in place at this
time within both the Republic of Srpska and Federation were, with minor amendments, the old
pre-war 1977 SFRJ Criminal Procedure Code.
84
This continuity of the inquisitorial model within
Bosnia-Herzegovina --- a continuity that ran from the tail end of the Ottoman period right
through to the turn of the 21st century --- was judged by many legal reformers, especially
international ones, as a part of the problem. The inquisitorial model was deemed to be
inefficient
85
and open to manipulation,
86
and as such a shift to a more accusatorial model was
suggested as a solution to overcoming these perceived deficiencies.
87
Echoing these calls, a May
2002 international consultant’s report (commissioned by the Office of the High Representative)
recommended that Bosnia-Herzegovina, in the interests of efficiency and procedural justice,
change its criminal procedure from an inquisitorial to an accusatorial model.
88
A working group
had already been set up to draft a reformed criminal procedure code in 2000, but the process had
bogged down. High Representative Ashdown, who had made legal reform one of the priorities of
his administration,
89
reorganized the working group and gave it renewed impetus to draft a
“reformed” code.
90
By the end of 2002, the working group had completed its work and produced
a draft “reformed” criminal procedure code that decisively shifted Bosnia-Herzegovina into an
accusatorial model of criminal justice.
91
In January 2003, High Representative Ashdown used his

UNITED NATIONS MISSION TO BOSNIA AND HERZEGOVINA, JUDICIAL SYSTEM ASSESSMENT PROGRAM THEMATIC
REPORT IX: THE INDEPENDENCE OF THE JUDICIARY IN BOSNIA AND HERZEGOVINA (2000) (Describing the methods
Bosnian politicians use to exert pressure on judges.); ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE,
WAR CRIMES TRIALS BEFORE THE DOMESTIC COURTS OF BOSNIA AND HERZEGOVINA: PROGRESS AND OBSTACLES 35
(2004) (Describing the intimidation of Bosnian judges and prosecutors.).

84
INDEPENDENT JUDICIAL COMMISSION, FINAL REPORT OF THE INDEPENDENT JUDICIAL COMMISSION 181 (2004).

85
See UNITED NATIONS MISSION TO BOSNIA AND HERZEGOVINA, JUDICIAL SYSTEM ASSESSMENT PROGRAM
THEMATIC REPORT X: SERVING THE PUBLIC 6, 32-33, 43-44 (2000).

86
See JUDICIAL SYSTEM ASSESSMENT PROGRAM THEMATIC REPORT VIII: PROSECUTING CORRUPTION, supra note
83, at 29-34.

87
See JUDICIAL SYSTEM ASSESSMENT PROGRAM THEMATIC REPORT VIII: PROSECUTING CORRUPTION, supra note
83, at 42-43; JUDICIAL SYSTEM ASSESSMENT PROGRAM THEMATIC REPORT X: SERVING THE PUBLIC, supra note 85,
at 43.

88
See Michael Bohlander, Paper from the Prosecutors’ Colloquium: The Transfer of Cases from International
Criminal Tribunals to National Courts 24-26 (Arusha, Nov. 2004) (Describing the consultant’s report and its
recommendations.).

89
See PADDY ASHDOWN, SWORDS AND PLOUGHSHARES: BRINGING PEACE TO THE 21ST CENTURY 77-78 (Weidenfeld
& Nicolson 2007) (Describing how Ashdown viewed legal reform as the key to Bosnia-Herzegovina’s successful
post-war transition and recovery.).

90
See id. at 249 (Detailing the new appointments Ashdown made to the working group.).

91
See e.g. Peter Pavlin, Opinion and Comments on the Draft Criminal Procedure Code of Bosnia and Herzegovina,
in EXPERT OPINIONS ON THE DRAFT CRIMINAL PROCEDURE CODE OF BOSNIA AND HERZEGOVINA 49 (Council of
Europe, 2002) (Commenting that the proposed criminal procedure code was clearly on the accusatorial model.);
82
Bonn Powers to enact the working groups draft
92
as the new Criminal Procedure Code (Zakon o
krivičnom postupku) for Bosnia-Herzegovina on the central government level.
93
Shortly
thereafter, the two entities, the Republic of Srpska and the Federation, enacted new entity level
criminal procedure codes more or less identical to the one enacted by High Representative
Ashdown on the central government level.
94

1. Criminal Procedure in Bosnia-Herzegovina pre-2003: An Inquisitorial
Model

As discussed earlier, prior to the new Criminal Procedure Code enacted by High
Representative Paddy Ashdown in 2003, the legal model in place in Bosnia-Herzegovina was
clearly an inquisitorial one in the French / Austrian tradition. The 2003 Code introduced clearly
accusatorial elements into Bosnian criminal procedure, but before these developments can be
discussed in any detail, a brief survey of the inquisitorial model in place in Bosnia-Herzegovina
prior to 2003 is in order. The inquisitorial model has already been broadly identified as being
characterized by hierarchical bureaucratic decision-making, broad evidentiary rules, and reliance
on written records;
95
but more discussion on the detailed procedural aspects of the inquisitorial

Bostjan Penko, Focus on Pre-Trial and Investigative Procedure, in EXPERT OPINIONS ON THE DRAFT CRIMINAL
PROCEDURE CODE OF BOSNIA AND HERZEGOVINA 26 (Council of Europe, 2002) (Commenting that the proposed
criminal procedure code had incorporated numerous accusatorial features.); Lilian A. Barria & Steven D. Roper,
Judicial Capacity Building in Bosnia and Herzegovina: Understanding Legal Reform Beyond the Completion
Strategy of the ICTY, 9 HUM. RIGHTS REV. 317, 325 (2008) (Commenting on how the enacted 2003 Criminal
Procedure Code indicated a “movement away from the inquisitorial trial process” formerly in place.); David Tolbert
& Aleksandar Kontić, The International Criminal Tribunal for the former Yugoslavia: Transitional Justice, the
Transfer of Cases to National Courts, and Lessons for the ICC, in THE EMERGING PRACTICE OF THE INTERNATIONAL
CRIMINAL COURT 147 (Carsten Stahn & Göran Sluiter eds., 2009) (Commenting on how the enacted 2003 Criminal
Procedure Code “moved the country away from its traditional civil law [inquisitorial] model to one closer to the
adversarial [accusatorial] system.”); OLGA MARTIN-ORTEGA & JOHANNA HERMAN, JAD-PBP WORKING PAPER
SERIES, HYBRID TRIBUNALS & THE RULE OF LAW: NOTES FROM BOSNIA & HERZEGOVINA & CAMBODIA 10 (2010)
(Commenting on how the enacted 2003 Criminal Procedure Code introduced “elements of common law [the
accusatorial model]” that were “completely unknown in the Bosnian legal system.”).

92
See Decision Enacting the Criminal Procedure Code of Bosnia and Herzegovina, Office of the High
Representative (Jan. 24, 2003).

93
See Zakon o krivičnom postupku Bosne i Hercegovine [Criminal Procedure Code of Bosnia-Herzegovina],
Službeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia-Herzegovina], No. 3/03. A jurisdictional note
should be included here. Prior to January 2003, criminal procedure in Bosnia-Herzegovina was handled entirely on
the entity level by the Republic of Srpska and Federation. Part of the changes enacted by High Representative
Ashdown was to establish a criminal procedure code (in addition to a criminal code) on the central government level
for specified categories of procedures and offenses. For a detailed discussion on the new central government level
Bosnian criminal code, see infra § III(B).

94
For the Republic of Srpska, see Zakon o krivičnom postupku Republike Srpske [Criminal Procedure Code of the
Republic of Srpska], Službeni glasnik Republike Srpske [Official Gazette of the Republic of Srpska], No. 50/03. For
the Federation, see Zakon o krivičnom postupku Federacije Bosne i Hercegovine [Criminal Procedure Code of the
Federation of Bosnia-Herzegovina], Službene novine Federacije BiH [Official Gazette of the Federation of BiH],
No. 35/03.

95
See Chapter 1 § II

83
model, especially as practiced in Bosnia-Herzegovina prior to 2003, must be presented before an
analysis of the 2003 changes can be undertaken.

The key objective of the inquisitorial model is to establish a judicial procedure that
“enables the inquisitor to extract the truth from the suspect.”
96
The establishment of the material
truth (of whatever case in hand) is the cornerstone of the model.
97
Under the inquisitorial model
as practiced in the SFRJ / Bosnia-Herzegovina prior to the 2003 criminal procedure changes,
when the police authorities had reason to suspect that a criminal act / offense had occurred they
would be required to begin an investigation and collect evidence.
98
During this preliminary phase
of the criminal procedure (prethodni krivični postupak), this collected evidence would be used to
provide the public prosecutor (javni tužilac) with the necessary material to decide whether a
formal investigation (istraga) should be initiated.
99
If the decision was made to initiate a formal
investigation, the public prosecutor would then request that an investigative judge (istražni
sudija) enter into the process and take over the investigation.
100
The investigative judge is a
unique figure under the inquisitorial model, he is a full judge with powers to order hearings,
collect evidence, and place people in detention.
101
The role of the investigative judge under the
inquisitorial model is to search for the truth and gather evidence in order to decide whether the
investigation should proceed to indictment (in this way, he is a non-partisan figure).
102

Under the inquisitorial model as practiced in the SFRJ / Bosnia-Herzegovina prior to the
2003 criminal procedure changes, at the end of the formal investigation, the investigative judge
would submit his findings to the public prosecutor who would then decide whether or not to go

96
SALVATORE ZAPPALÀ, HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS 16 (Oxford University Press
2003). See also William Pizzi & Luca Marafioti, The New Italian Code of Criminal Procedure: The Difficulties of
Building an Adversarial Trial System on a Civil Law Foundation, 17 YALE J. INT. L. 1, 7 (1992); Gordon Van
Kessel, European Perspectives on the Accused as a Source of Testimonial Evidence, 100 W. VA. L. REV. 799, 817
(1998).

97
Mirjan R. Damaška, Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative
Study, 121 U. PA. L. REV. 506, 581 (1973).

98
See Zakon o krivičnom postupku SFRJ, supra note 78, at art. 151. See also VLADIMIR BAYER, JUGOSLOVENSKO
KRIVIČNO PROCESNO PRAVO, KNJIGA PRVA 112 (6th ed. 1980); SIMIĆ-JEKIĆ, supra note 69, at 188; DIMITRIJEVIĆ,
STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note 73, at para. 165; Stojanović, Perić, & Ignjatović, supra note 69, at paras.
567-570.

99
See Zakon o krivičnom postupku SFRJ, supra note 78, at art. 153. See also BAYER (1980), supra note X, at 116-
117; SIMIĆ-JEKIĆ, supra note X, at 201; DIMITRIJEVIĆ, STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note X, at para. 297;
Stojanović, Perić, & Ignjatović, supra note X, at para. 571.

100
See Zakon o krivičnom postupku SFRJ, supra note X, at art. 158. See also BAYER (1980), supra note 98, at 117;
Stojanović, Perić, & Ignjatović, supra note 69, at paras. 571, 580-581.

101
See Stojanović, Perić, & Ignjatović, supra note 69, at para. 33; MILAN ŠKULIĆ, KRIVIČNO PROCESNO PRAVO,
POSEBNI DEO 24-27 (1st ed. 2008); See also JEAN PRADEL, PROCÉDURE PÉNALE (16th ed. 2011) (Providing a French
perspective on the judicial role of the investigative judge.).

102
See ŠKULIĆ (2008), supra note 101, at 24-27.

84
forward and issue an indictment (optužnica) against the accused (okrivljeni).
103
If the public
prosecutor decided to lay charges and issue an indictment, the case would brought before a
presiding judge (sudija) in the competent jurisdiction.
104
Throughout the entire process of the
formal investigation led by the investigative judge, a case file or dossier (zapisnik / službena
beleška) of all the collected evidence would be kept; the dossier would contain written
summaries of testimony taken and records of all proof-taking activity.
105
In this way, evidence
gathering would be undertaken by a single non-partisan party in the process rather than by the
prosecution and defense, thereby avoiding both the duplication of evidence and contradictions in
the evidence produced.
106
The trial itself would be usually held before a panel (veće) of three
judges.
107
The president of the panel (predsednik veća) or presiding judge would lead the trial,
which would begin with the reading of the indictment, then arraignment, followed by the
interrogation / questioning of the accused, and finally the presentation of evidence.
108
The role of
the presiding judge would be an active one as it would be up to him to decide who testified and
when (the parties, prosecution and defense, could only suggest witnesses); also, when a witness
would take the stand, it would be the presiding judge who would first question them, followed by
the prosecution and defense.
109
The presiding judge would be able to take such an active lead in
the proceedings because he would be in procession and charge of the dossier, and it would be to
him to use the evidence contained therein in his position to ascertain the truth.
110
In that evidence
gathering was through the non-partisan figure of the investigative judge,
111
the questioning of
witnesses by all sides would be conducted in a non-adversarial atmosphere.
112

103
See Zakon o krivičnom postupku SFRJ, supra note 78, at art. 174. See also BAYER (1980), supra note 98, at 124-
125; SIMIĆ-JEKIĆ, supra note 69, at 256; DIMITRIJEVIĆ, STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note 73, at para. 165;
Stojanović, Perić, & Ignjatović, supra note 69, at para. 588.

104
At this point, the accused could challenge the issuance of the indictment and argue for its dismissal. See Zakon o
krivičnom postupku SFRJ, supra note 78, at arts. 279-286.

105
See Zakon o krivičnom postupku SFRJ, supra note 78, at arts. 76-89, 151. See also BAYER (1978), supra note 69,
at 49, 56-57; SIMIĆ-JEKIĆ, supra note 69, at 158-162; DIMITRIJEVIĆ, STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note 73,
at para. 160; Stojanović, Perić, & Ignjatović, supra note 69, at paras. 533, 549, 552.

106
For an excellent discussion of the advantages of such non-partisan evidence gathering, see ROBERT A. KAGAN,
ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 87-89 (Harvard University Press 2001).

107
See Zakon o krivičnom postupku SFRJ, supra note 78, at art. 19. See also SIMIĆ-JEKIĆ, supra note 69, at 47;
Stojanović, Perić, & Ignjatović, supra note 69, at para. 497.

108
See Zakon o krivičnom postupku SFRJ, supra note 78, at arts. 315-319. See also BAYER (1980), supra note 98, at
186-187; SIMIĆ-JEKIĆ, supra note 69, at 280-284; DIMITRIJEVIĆ, STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note 73, at
paras. 362-368; Stojanović, Perić, & Ignjatović, supra note 69, at paras. 634-641.

109
See Zakon o krivičnom postupku SFRJ, supra note 78, at art. 292. See also BAYER (1980), supra note 98, at 131;
SIMIĆ-JEKIĆ, supra note 69, at 184-185, 277; DIMITRIJEVIĆ, STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note 73, at para.
59; Stojanović, Perić, & Ignjatović, supra note 69, at paras. 632, 636-637.

110
See BAYER (1978), supra note 69, at 106.

111
This type of non-adversarial evidence gathering also gives rise to rules of evidence that are focused not on
authentication and admissibility (as in the accusatorial model), but instead focused on normatively evaluating what
is already in the dossier. See Sean Doran, John D. Jackson, & Michael L. Seigel, Rethinking Adversariness in
85

2. Criminal Procedure in Bosnia-Herzegovina post-2003: Putting in
Place an Accusatorial Model

The new Criminal Procedure Code enacted by High Representative Paddy Ashdown in
2003 had the effect of introducing clearly accusatorial elements into the formerly inquisitorial
legal model that had been in place in Bosnia-Herzegovina. The accusatorial model has already
been broadly identified as being characterized by more party-influenced discretionary decision-
making, strict evidentiary rules, and a reliance on oral arguments,
113
but a detailed analysis of the
changes introduced by the 2003 criminal procedure “reforms” will be required to flesh out the
specific elements that, taken together, identify the accusatorial legal model. At its heart, the
accusatorial model is defined by a reliance on an adversarial process and procedure to uncover
the truth, which has the effect of shifting the control (over the process) to the parties (which in
the case of criminal procedure are the prosecution and defense).
114
True to the accusatorial
model, the new criminal procedure changes put in place in 2003 worked to shift control over the
judicial process to the prosecution and defense. The changes eliminated the position of the non-
partisan investigative judge and instead made the prosecutor primarily responsible for
conducting criminal investigations.
115
New trial procedures limiting the role of the presiding
judge in the questioning of witnesses, and instead shifting this responsibility to the prosecution
and defense were also introduced (although the concept of trials being held in front of a panel of
three judges was kept).
116
Additionally, accusatorial concepts such as the authentication of
evidence at trial
117
and the cross examination of witnesses
118
were also instituted.
119
Taken

Nonjury Criminal Trials, 23 AM. J. CRIM. L. 1, 21 (1995); Alphons Orie, Accusatorial v. Inquisitorial Approach in
International Criminal Proceedings Prior to the Establishment of the ICC and in the Proceedings Before the ICC, in
THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY, VOL. II 1452 (Antonio Cassese,
Paola Gaeta, & John R.W.D. Jones, eds., 2002).

112
For a general (i.e. not specific to the SFRJ / Bosnian context) discussion of this phenomena, see Mirjan R.
Damaška, The Uncertain Fate of Evidentiary Transplants: Anglo-American and Continental Experiments, 45 AM. J.
COMP. L. 839, 845 (1997) (“In officialized continental [inquisitorial] systems … the mediating impact of the court's
activity leaves more room for a neutral (nonpartisan) understanding of means of proof. According to a long-standing
view, after a litigant has offered a witness to the court, he is treated as ‘common’ to both sides.”).

113
See Chapter 1 § II.

114
See Damaška (1973), supra note 97; ZAPPALÀ, supra note 96, at 16-17. Damaška (1997), supra note 112, at 841-
844.

115
See Zakon o krivičnom postupku Bosne i Hercegovine, supra note 93, at arts. 16, 216-218; Zakon o krivičnom
postupku Republike Srpske, supra note 94, at arts. 16, 216-218; Zakon o krivičnom postupku Federacije Bosne i
Hercegovine, supra note 94, at arts. 17, 231-233. See also Hajrija Sjerčić-Čolić, Specifični instituti u razvoju novog
krivičnog postupka u Bosni i Hercegovini, 48 REV. KRIMINOLOGIJU & KRIV. P. 121, 126 (2010).

116
See Zakon o krivičnom postupku Bosne i Hercegovine, supra note 93, at art. 261; Zakon o krivičnom postupku
Republike Srpske, supra note 94, at art. 268; Zakon o krivičnom postupku Federacije Bosne i Hercegovine, supra
note 94, at art. 276. See also Sjerčić-Čolić, supra note 115, at 137.

117
See Zakon o krivičnom postupku Bosne i Hercegovine, supra note 93, at arts. 263, 273-274; Zakon o krivičnom
postupku Republike Srpske, supra note 94, at arts. 270, 280-281; Zakon o krivičnom postupku Federacije Bosne i
Hercegovine, supra note 94, at arts. 278, 288-289. See also Sjerčić-Čolić, supra note 115, at 134-137.
86
together these changes had the effect of attempting to initiate the transformation of the formerly
inquisitorial legal model in place in Bosnia-Herzegovina into an accusatorial one. Figure 4.02
below presents a simplified representation of criminal procedure as practiced in Bosnia-
Herzegovina before / after the 2003 changes:

Figure 4.02: Criminal Procedure in Bosnia-Herzegovina Pre / Post the 2003 Changes

1977 SFRJ CRIMINAL PROCEDURE CODE 2003 BIH CRIMINAL PROCEDURE CODE
• Establishment of the material truth (of whatever case
in hand) is the cornerstone of the inquisitorial model
upon which the Code is based
• Investigative judge runs the investigation into the
accused
• Role of the investigative judge is to search for the
truth and gather evidence in order to decide whether
the investigation should proceed to indictment --- in
this way he is a non-partisan figure
• Throughout the entire process of the formal
investigation led by the investigative judge, a case
file or dossier of all the collected evidence is kept;
the dossier contains summaries of testimony taken
and records of all proof-taking activity
• Rules of evidence that are focused not on
authentication and admissibility (as in the
accusatorial model), but instead focused on
normatively evaluating what is already in the dossier
• Role of the presiding judge at trial is an active one --
- it is up to him to decide who testifies and when;
also, when a witness takes the stand, it is the
presiding judge who first questions them, followed
by the prosecution and defense
• Code is based on the accusatorial model which is
defined by a reliance on an adversarial process and
procedure to uncover the truth --- this has the effect
of shifting the control (over the process) to the
parties (the prosecution and defense)
• Prosecutor runs the investigation into the accused
• Position of non-partisan investigative judge does not
exist --- partisan figure of the prosecutor primarily
responsible for conducting criminal investigations
• Single dossier of evidence no longer exists --- both
sides (the prosecution and defense) responsible for
collecting their own evidence, which is orally
proofed at trial
• Rules of evidence that are focused on authentication
and admissibility at trial, including evidence
proofing and the adversarial cross-examination of
witnesses
• Role of the presiding judge at trial is a passive one --
- the role of the presiding judge in the questioning of
witnesses curtailed and this responsibility instead
shifted to the prosecution and defense

III. Bosnia-Herzegovina: The Structure of the Courts and the Jurisdictional
Foundations for Prosecuting International Crimes

The large-scale war and destruction that accompanied the breakup of the SFRJ also led to
a key legal innovation --- the establishment of the International Criminal Tribunal for the former
Yugoslavia (ICTY) in 1993. The ICTY was established by the United Nations (UN) Security
Council in order to judge serious breaches of international law committed in the territory of the
former Yugoslavia.
120
Chapter 3 already discussed the groundbreaking role of the ICTY in the

118
See Zakon o krivičnom postupku Bosne i Hercegovine, supra note 93, at art. 262; Zakon o krivičnom postupku
Republike Srpske, supra note 94, at art. 269; Zakon o krivičnom postupku Federacije Bosne i Hercegovine, supra
note 94, at art. 277. See also Sjerčić-Čolić, supra note 115, at 137.

119
Arguably these last two provisions: the necessity for more complex rules of evidence (including the
authentication of evidence at trial) and the introduction of the adversarial questioning of witnesses would have
emerged organically on their own regardless, as the elimination of the non-partisan investigative judge and the all-
encompassing dossier would have guaranteed the emergence of new rules of evidence focused on admissibility and
the adversarial questioning of witnesses. See supra notes 111-112.

120
See S.C. Res. 827, U.N. SCOR, 48th Sess., 3217th mtg., U.N. Doc. S/RES/827 (May 25, 1993) (Establishing the
ICTY under the Security Council’s Chapter VII powers, and determining that ethnic cleansing in the former
87
development of international criminal law, but the establishment of the Tribunal also had far-
reaching effects on the post-war reconstruction of Bosnia-Herzegovina’s own domestic legal
system. The ICTY had never been envisioned as a replacement for the domestic prosecutions of
international crimes, it was intended instead as a complementary body that would handle the
most serious cases while leaving the bulk of prosecutions to domestic level authorities and
courts. The inability of the national authorities in the post-Yugoslav states to tackle the domestic
prosecution of international crimes in the immediate post-war period, especially in Bosnia-
Herzegovina, led to the ICTY becoming deeply involved in the domestic restructuring of both
the institutional and jurisdictional mechanisms for the prosecution of these offenses. The
domestic legacy of the ICTY in Bosnia-Herzegovina today can be seen in how the prosecution of
international crimes in the country is based on a dual-track model that places the more sensitive
cases within the jurisdiction of a specially established court on the central government level (the
State-Court of Bosnia-Herzegovina), but funnels the majority of cases back to entity level district
and cantonal courts. Each of these unique judicial institutions have a very different institutional
design, a design that can then possibly play a role in either magnifying or diffusing transnational
actor influence.

A. State-Court, District Courts, and Cantonal Courts: A Fragmented Judiciary

The Bosnian judiciary, in many ways mirroring the country’s political structure, is highly
fragmented with judicial institutions operating on several layers. Recall that Bosnia-
Herzegovina, as established by the Dayton Agreement, is a highly decentralized federal state that
is comprised of a weak central government and two “entities” or constituent units: the Republic
of Srpska and the Federation of Bosnia-Herzegovina.
121
Replicating this tri-partite political
structure, the courts in Bosnia-Herzegovina are divided amongst the three layers of government,
with the key court on the central government level being the single State-Court of Bosnia-
Herzegovina, and the key courts on the entity level being the local Bosnian district courts in the
Republic of Srpska and cantonal courts in the Federation. All three institutions are empowered to
hear cases originating from international criminal offenses committed in the territory of the
former Yugoslavia during the conflict of the early 1990s, but at the same time the institutional
design of each court is very different.

1. The State-Court of Bosnia-Herzegovina

The State-Court of Bosnia-Herzegovina is the only real national institution in a country
that, as a legacy of the conflict which engulfed it in the early 1990s, is highly decentralized. The
origin of the State-Court lies in the large-scale failure of the Bosnian judiciary, in the immediate
post-war period, to prosecute those accused of committing international criminal offenses during
the conflict. In the years immediately following the signing of the Dayton Agreement in 1995
(and subsequent ending of hostilities between the warring Serb, Croat, and Bosnian Muslim

Yugoslavia constituted a threat to international peace and security.). See also Report of the Secretary-General
Pursuant to Paragraph 2 of Security Council Resolution 808, U.N. Doc. S/25704 (1993) (Where the functions and
competencies of the proposed tribunal are discussed.).

121
Note here, as discussed earlier in this chapter, the special status of the Brčko District, which is a self-governing
administrative unit formally part of both entities (i.e. the Republic of Srpska and Federation). See supra note 33.

88
sides), the international community was deeply involved in pushing for the domestic Bosnian
prosecutions of crimes which had occurred during the conflict. Although the ICTY had been
established by the UN Security Council in 1993 to review and judge international criminal
offenses committed in the territory of the former Yugoslavia, the ICTY had always been
envisioned as complementing domestic prosecutions rather than replacing them.
122
As such,
since its inception the ICTY has enjoyed concurrent (rather than sole) jurisdiction with national
courts in prosecuting international criminal offenses (although it should be noted that the ICTY
enjoys primacy over national courts in its jurisdiction), such that it can take over national level
prosecutions and have them transferred to the Tribunal.
123

Domestic prosecutions of international criminal offenses in Bosnia-Herzegovina during
the immediate post-war period were characterized by ethnically motivated prosecutions marked
by arbitrary arrests, trials in absentia, and the use of the death penalty.
124
This environment
proved problematic for post-war reconstruction envisioned by the Dayton Agreement, as it had a
“chilling effect” on the return of refugees and displaced persons to their former homes, which
then in turn had the capacity to endanger the success of the country’s first post-war elections.
125

In 1996 the international community stepped into the breach and brokered the signature of what
came to be known as the Rome Agreement.
126
The Rome Agreement was signed by the
Presidents of the main post-Yugoslav successor states of Serbia,
127
Croatia, and Bosnia-

122
Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, supra note 120, at
paras. 62-64; See also VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER’S GUIDE TO THE INTERNATIONAL
CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA, VOL. I 124 (Transnational Publishers 1995) (“There was no
indication that the Security Council intended to create an international tribunal with exclusive jurisdiction over the
crimes in question. As a practical matter, it would be practically impossible for the International Tribunal to
prosecute all of the perpetrators of the reported atrocities in the former Yugoslavia or even those responsible for the
most serious violations. Thus, the Secretary-General’s report recommended conferring concurrent jurisdiction on the
International Tribunal to complement rather than supersede the jurisdiction conferred on all States for the crimes
under international law covered by the Statute [ICTY Statute].”).

123
Statute for the International Criminal Tribunal for the former Yugoslavia, S.C. Res. 827, U.N. SCOR 48th Sess.,
3217th mtg., U.N. Doc. S/RES/827 (May 25, 1993), art. 9; Rules of Procedure and Evidence for the International
Criminal Tribunal for the former Yugoslavia, U.N. Doc. IT/32/Rev.49 (2013), rule 8. In its jurisprudence, the ICTY
has justified this primacy as a tool to prevent forum shopping, see Prosecutor v. Tadić, Case No. IT-94-1-T, ICTY
Decision on the Defense Motion on Jurisdiction, para. 41 (Aug. 10, 1995).

124
For a summary of domestic Bosnian prosecutions during this period, see WAR CRIMES TRIALS BEFORE THE
DOMESTIC COURTS OF BOSNIA AND HERZEGOVINA: PROGRESS AND OBSTACLES, supra note 83, at 4.

125
Barria & Roper, supra note 91, at 321; YAËL RONEN, DOMAC PROJECT, BOSNIA AND HERZEGOVINA: THE
INTERACTION BETWEEN THE ICTY AND DOMESTIC COURTS IN ADJUDICATING INTERNATIONAL CRIMES 26 (2011).

126
See The Rome Statement reflecting the work of the Joint Civilian Commission Sarajevo Compliance Conference
(Feb. 18, 1996) [hereinafter Rome Agreement].

127
Note here, as discussed in earlier in this chapter, strictly speaking, “Serbia” was at this time officially known as
the Federal Republic of Yugoslavia (Savezna Republika Jugoslavija) or SRJ. The SRJ consisted of the old
Communist-era Yugoslav republics of Serbia and Montenegro which, unlike Croatia, Bosnia-Herzegovina, Slovenia,
and Macedonia, had never seceded from the old Yugoslav union. The republics of Serbia and Montenegro instead,
on April 27, 1992, promulgated a new federal constitution replacing the old Yugoslav union with the newly created
Federal Republic of Yugoslavia. See supra note 21.

89
Herzegovina, and committed them, amongst other things, to enhanced cooperation with the
ICTY.
128
This cooperation took the form of a promise not to arrest / detain any suspect(s) for
alleged international crimes committed during the recent conflict, unless the indictment for the
suspect(s) in question had been reviewed and approved by the ICTY.
129
This procedure for
obtaining ICTY approval for any domestic indictment related to an alleged international criminal
offense came to be known as the “Rules of the Road” (RoR) provisions. After some initial
hesitation, the ICTY set about to enact the RoR provisions by creating a special RoR Unit within
the ICTY Office of the Prosecutor (OTP).
130
The procedure the RoR Unit followed was to
categorize each of the case files it received from the national level authorities by a letter grade,
131

with the most important grades being A-C.
132
A category A grade meant that there was sufficient
evidence to support an indictment (leaving the national level authorities free to prosecute); a
category B grade meant that there was insufficient evidence to support an indictment; and a
category C grade meant that there was insufficient evidence for the RoR Unit to make a
determination, but that the national authorities could gather additional evidence and resubmit.
133

From 1996 to 2004, the period in which the RoR provisions were in place, Bosnia-Herzegovina
submitted case files for 5,789 suspects to the RoR Unit within the ICTY, with category A grade
approval given to prosecute only 848 of those suspects.
134
As of 2005, of those 848 suspects, the
Bosnian authorities had brought charges against only 54 individuals.
135

128
Rome Agreement (Agreed Measures), supra note 126, at § 5.

129
Id.

130
Initially the ICTY OTP was very reluctant to undertake this new responsibility, concerned primarily that it was
(a) not within the Tribunals mandate; (b) would act as a drain on OTP resources; and (c) would interfere with the
OTP’s primary mission of prosecuting the major international criminals from the conflict. Ultimately it would take
major arm twisting, mainly by the United States, to get the OTP on board with taking on this new responsibility. See
Mark S. Ellis, Bringing Justice to an Embattled Region --- Creating and Implementing the Rules of the Road for
Bosnia-Herzegovina, 17 BERKELEY J. INT'L LAW 1, 7-8 (1999).

131
There were a total of seven letter grade categories (A-G).

132
WAR CRIMES TRIALS BEFORE THE DOMESTIC COURTS OF BOSNIA AND HERZEGOVINA: PROGRESS AND
OBSTACLES, supra note 83, at 5; Barrier & Roper, supra note 91, at 322.

133
A category D grade meant that the Tribunal would seek to take over the indictment and prosecute the case itself.
A category E grade meant that there was insufficient evidence to support an indictment for an international crime
(i.e. crimes against humanity, genocide, war crimes), but that there might be sufficient evidence to support an
indictment for an ordinary crime. A category F grade meant that not only was there was sufficient evidence to
support a national indictment, but that the suspect may be an important potential witness for the Tribunal in other
cases. A category G grade meant that the evidence submitted by the national authorities indicated the commission of
a more serious international crime than that contained in the national indictment. See WAR CRIMES TRIALS BEFORE
THE DOMESTIC COURTS OF BOSNIA AND HERZEGOVINA: PROGRESS AND OBSTACLES, supra note 83, at 5; Tolbert &
Kontić, supra note 91, at 143 n.32.

134
Category B grades (insufficient evidence to prosecute) were given to 2,346 of those cases, and category C grades
(insufficient evidence to make a determination to prosecute) given to 675. See WAR CRIMES TRIALS BEFORE THE
DOMESTIC COURTS OF BOSNIA AND HERZEGOVINA: PROGRESS AND OBSTACLES, supra note 83, at 6.

135
WAR CRIMES TRIALS BEFORE THE DOMESTIC COURTS OF BOSNIA AND HERZEGOVINA: PROGRESS AND
OBSTACLES, supra note 83, at 6.

90

Whilst the RoR provisions were successful in curtailing the problematic, ethnically
motivated prosecutions that were occurring in Bosnia-Herzegovina during the immediate post-
war period, the failure of the Bosnian authorities to follow up on the prosecution of the majority
of the approved category A cases caused concern both within the ICTY and the larger
international community as a whole.
136
The concern was particularly acute within the ICTY as in
early 2001 the ICTY had moved to adopt a “Completion Strategy” which envisioned the eventual
conclusion of the Tribunal’s work.
137
Originally, the Completion Strategy predicted the Tribunal
completing its case-load (both trial and appellate) by 2010,
138
but this was later revised to
2016.
139
Given that the ICTY now had a limited time-frame to conclude and clear its current
case-load, some mechanism had to be found, not only to attempt to lighten the ICTY docket, but
also to address the failure of the national authorities, especially in Bosnia-Herzegovina, to
prosecute approved RoR category A cases. The solution that was ultimately adopted was two-
fold, and involved (1) establishing a mechanism through which the ICTY could transfer cases
out of its own docket to national level courts in the post-Yugoslav successor states (this
mechanism came known as the “Rule 11bis” procedure);
140
and (2) working with the national
authorities in building up their judicial capacity to try both these new transferred ICTY cases and
the back-logged RoR category A cases.
141
In Bosnia-Herzegovina, the ICTY’s efforts to build up

136
For an analysis placing the majority of the failure here on the ICTY’s jurisdictional primacy (over national
courts), see William W. Burke-White, The Domestic Influence of International Criminal Tribunals: The
International Criminal Tribunal for the former Yugoslavia and the Creation of the State Court of Bosnia &
Herzegovina, 46 COLUM. J. OF TRANSNAT’L L. 279, 310-319 (2008). For a contra view, explaining the failure to
prosecute (by the Bosnian authorities) as one relating to problems of regional cooperation and coordination between
the post-Yugoslav successor states, see Barrier & Roper, supra note 91, at 322-323.

137
Address by His Excellency, Judge Claude Jorda, President of the International Criminal Tribunal for the former
Yugoslavia, to the UN General Assembly, ICTY Media Office, JD/P.I.S/640-e (Nov. 27, 2001).

138
S.C. Res. 1534, U.N. SCOR 59th Sess., 4935th mtg., U.N. Doc. S/RES/1534 (Mar. 26, 2004); Statement by the
Tribunal President Judge Fausto Pocar to the Security Council, ICTY Media Office, LM/MOW/1084e (Jun. 7,
2006).

139
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY), COMPLETION STRATEGY: A
THREE-PHASE PLAN (2012).

140
The “Rule 11bis” procedure was named after the amended rule in the ICTY’s Rules of Procedure and Evidence
on which it was based. Rule 11bis allowed either the ICTY Prosecutor, or the Tribunal Chambers itself, to initiate
the transfer of a case from the ICTY to a national level court once an indictment had been confirmed by the
Tribunal. The final decision of whether to approve the transfer rested with a special “Referral Bench” composed of
three ICTY judges. If a decision was made to transfer, the case could be sent either to a national court in whose
territory the crime was committed, a national court in the territory where the accused was arrested, or a national
court having jurisdiction and willing to accept the case. In making the transfer, the Tribunal had to be convinced that
the accused would receive a fair trial and that the death penalty would not be used. See Rules of Procedure and
Evidence for the International Criminal Tribunal for the former Yugoslavia, supra note 123, at rule 11bis. See also
Larry D. Johnson, Closing an International Criminal Tribunal While Maintaining International Human Rights
Standards and Excluding Impunity, 99 AM. J. INT'L L. 158 (2005).

141
In addition to these external institutional changes, the ICTY also initiated changes in its internal institutional
structure in an attempt to adjudicate the cases in its docket more efficiently. These changes included an increased
reliance on plea-bargaining, and revising Rule 73bis of the Tribunals Rules of Procedure and Evidence so as to
91
judicial capacity centered on the few one national institutions in the county --- the State-Court of
Bosnia-Herzegovina.

Technically speaking, the State-Court of Bosnia-Herzegovina was established in 2000, by
the High Representative using his “Bonn Powers”
142
to impose laws on the country by decree.
143

In this initial incarnation, the State-Court did not have jurisdiction over cases concerning
international crimes committed during the conflict of the early 1990s, but rather exercised
limited criminal and administrative jurisdiction over the few agencies of the central Bosnian
government (including jurisdiction over issues having to do with Bosnian electoral law), and no
jurisdiction at all over the entities.
144
Despite this limited jurisdictional reach in its initial
incarnation, the establishment of the State-Court was monumental at the time in creating one of
the few truly national institutions in a highly decentralized country.
145
It was thus not a surprise
that when the ICTY came looking for ways to build up Bosnia-Herzegovina’s judicial capacity
as part of its Completion Strategy, it zeroed in on the State-Court. Starting in January 2003, the
ICTY held meetings with the Bosnian Office of the High Representative (OHR), and a set of
Joint Conclusions was adopted that identified the reorganization of Bosnia’s State-Court as the
best way forward to building up Bosnia-Herzegovina’s judicial capacity and enable it to both
receive transferred ICTY cases through the Rule 11bis procedure, and to also prosecute the back-
logged RoR category A cases.
146
Specifically, what was proposed was to wholly reorganize the
State-Court by (a) extending its jurisdiction to cover international crimes committed during the
1990s conflict; and (b) through creating a specialized chamber (within the State-Court’s Criminal
Division) to then exercise this jurisdiction.
147
The Joint Conclusions also proposed that, at the
heart of this reorganization of the State-Court, there should be the addition of some type of
temporary “international” component to the Court’s judiciary.
148

allow judges to shorten proceedings through amending indictments. See Rules of Procedure and Evidence for the
International Criminal Tribunal for the former Yugoslavia, supra note 123, at rule 73bis.

142
See supra § I(D)(3) for an in-depth discussion of the role of the High Representative in the post-Dayton political structure
of Bosnia-Herzegovina (including the origin and history of the Bonn Powers).

143
See Decision Imposing the Law on the State Court of Bosnia-Herzegovina, Office of the High Representative
(Nov. 12, 2000).

144
Zakon o sudu Bosne i Hercegovine [Law on the Court of Bosnia-Herzegovina], Službeni glasnik Bosne i
Hercegovine [Official Gazette of Bosnia-Herzegovina], No. 29/00, arts. 13-15.

145
For a discussion of the domestic Bosnian political forces that were pushing for a central governmental judiciary
as a counter-weight to the entities, see Burke-White, supra note 136, at 328-330.

146
See Joint Preliminary Conclusions of OHR and ICTY Experts Conference on Scope of BiH War Crimes
Prosecutions, ICTY Media Office, OHR/PIS/723-e (Jan. 15, 2003).

147
Id.

148
Id. (“The Chamber will be an institution of Bosnia and Herzegovina operating under the laws of the state.
Nevertheless, for an initial period there should be a temporary international component in its judiciary[.]”).

92
The Joint Conclusions put forth by the ICTY and OHR for a reorganized Bosnian State-
Court were quickly endorsed by the UN Security Council,
149
and so the OHR set about
establishing funding mechanisms for the reorganization. By October 2003 the OHR had secured
€16 million in start-up funding from international donors and was ready to put the plan into
action.
150
At this point, rather than use his Bonn Powers to impose the reorganization of the
State-Court by decree, the High Representative decided to achieve the reorganization through the
Bosnian central government legislature. Though this decision resulted in additional political
debate and negotiation, the High Representative decided that reorganizing the Court in this more
democratic way would enhance its legitimacy.
151
By late 2003 and early 2004 the Bosnian
central government legislature was able to pass several amendments to the original law
establishing the State-Court. These amendments completely reorganized the Court, by allowing
non-Bosnian international judges (međunarodne sudije) to serve on it for a transitional period,
152

and by restructuring the chambers within the Court, in order to create a new Section for
International Crimes (Odjel za ratne zločine) within its Criminal Division (Krivično
odeljenje).
153
The newly reorganized State-Court, complete with its first set of international
judges, began operation in March 2005.
154

The State-Court’s criminal division consists of three specialized sections: Section I, as
already briefly discussed, covers international crimes; Section II covers organized crime and
corruption; and Section III deals with any other criminal law matters that may fall within the
courts purview.
155
Whilst international judges may serve on both Sections I and II in practice,
since 2006, they have only been appointed to serve on Section I (international crimes). The
State-Court operates on two levels, trial (first instance) and appellate (second instance), with the

149
S.C. Res. 1503, U.N. SCOR 58th Sess., 4817th mtg., U.N. Doc. S/RES/1503 (Aug. 28, 2003) (“[A]n essential
prerequisite to achieving the objectives of the ICTY Completion Strategy is the expeditious establishment under the
auspices of the High Representative and early functioning of a special chamber within the State-Court of Bosnia and
Herzegovina … and the subsequent referral by the ICTY of cases of lower- or intermediate-rank accused to the
Chamber.”).

150
International donors at this stage included the United States (€7.959 million), the United Kingdom (€l.132
million), Germany (€1.7 million), and the Netherlands (€l million). See OFFICE OF THE HIGH REPRESENTATIVE
(OHR), WAR CRIMES CHAMBER PROJECT: PROJECT IMPLEMENTATION PLAN REGISTRY PROGRESS REPORT 35 (2004).

151
Burke-White, supra note 136, at 337.

152
Zakon o izmjenama i dopunama Zakona o sudu Bosne i Hercegovine [Law Re-Amending the Law on the Court
of Bosnia-Herzegovina], Službeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia-Herzegovina], No.
42/03, art. 12(1).

153
Zakon o izmjenama i dopunama Zakona o sudu Bosne i Hercegovine [Law Re-Amending the Law on the Court
of Bosnia-Herzegovina], Službeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia-Herzegovina], No.
61/04, art. 8(1).

154
As part of the Completion Strategy, the Rules of the Road (RoR) program requiring ICTY approval for any
domestic Bosnian indictment related to an alleged international criminal offense came to an end in October 2004.

155
Zakon o sudu Bosne i Hercegovine [Law on the Court of Bosnia-Herzegovina], Službeni glasnik Bosne i
Hercegovine [Official Gazette of Bosnia-Herzegovina], No. 29/00, 16/02, 24/02, 3/03, 37/03, 42/03, 4/04, 9/04,
35/04, 61/04, 32/07 & 49/09, art. 14.

93
appellate level being the only body authorized in Bosnia-Herzegovina to accept appeals from the
State-Court’s trial level.
156
In this way the State-Court works, in part, as a self-contained legal
regime as its appellate level exists only to accept cases originating from its trial level, with no
other courts in the country having the right of appeal to the State-Court.
157
On both levels, trial
and appellate, judges sit in panels of three.
158
In the early years of the State-Courts operation
(2005-2008) the practice was to have ratio of two international judges to one national judge on
the panels, with the gradual shift to one international judge to two national judges (2009-2011),
and eventually all national judge panels (2012) as the international judges were phased out and
the State-Court’s judiciary became fully national in membership.
159
As of 2012, the State-Court
had 50 judges (all national) across all of its divisions. Figure 4.03 below presents a graphic
illustration of the ratio of international to national judges sitting on the State-Court from 2002-
2012:

Figure 4.03: National and International Judges Sitting on the State-Court of Bosnia-Herzegovina

156
Id. at art. 9.

157
In this way the State-Court very much mirrors the ICTY. It should also be noted, however, that the State-Court
does possess limited appellate jurisdiction over the courts of the special status Brčko District which, as discussed
earlier in this chapter, is a self-governing administrative unit formally part of both entities (i.e. the Republic of
Srpska and Federation). For a critique of the State-Court’s inability to review cases from Bosnia-Herzegovina’s
myriad of other lower level courts, see Barria & Roper, supra note 91, at 327.

158
Zakon o sudu Bosne i Hercegovine (49/09), supra note 155, at art. 13(4); Zakon o krivičnom postupku Bosne i
Hercegovine, supra note 93, at art. 24.

159
See OFFICE OF THE HIGH REPRESENTATIVE (OHR), WAR CRIMES CHAMBER PROJECT: PROJECT IMPLEMENTATION
PLAN REGISTRY PROGRESS REPORT 8 (2010).

7
23
31
48
51 51
50
0
12
15
7
5
4
0
2002 2005 2007 2009 2010 2011 2012
National Judges International Judges
94

From the appointment of the first international judge (Finn Lynghjem of Norway) in
2005, to the last (Phillip Weiner of the United States) in 2008, a total of 27 international judges
(representing 16 countries) served on the State-Court’s Section I for international crimes. The
main arguments in favor of internationalizing the State-Court’s judiciary presented by the ICTY
and OHR were that it would assist in building Bosnia-Herzegovina’s judicial capacity (i.e.
through the expertise of the international judges) and could also serve as a way to boost
confidence in the Court’s impartiality (i.e. between Serbs, Croats, and Bosnian Muslims).
160

Though these arguments are plausible in their own way, there are also other explanations, as will
be discussed in detail in Chapter 6,
161
for the international community’s insistence on
temporarily “internationalizing” the State-Court’s judicial component. Figure 4.04 below
presents a list of all of the international judges who served on the State-Court’s Section I for
international crimes, their nationality, terms in office, and any international legal experience they
had prior to joining the Court:

Figure 4.04: The International Component of the State-Court of Bosnia-Herzegovina (Section I)

International Judges of the State-Court of Bosnia-Herzegovina (Section I)
NAME NATIONALITY TERM IN OFFICE PREVIOUS
INTERNATIONAL
EXPERIENCE
Finn Lynghjem Norway 2005 – 2009 International Advisor
(Cambodia, Organization for
Security and Cooperation in
Europe)
Jose Ricardo De Prada
Solaesa
Spain 2005 – 2009 International Advisor
(European Union)
Gerald Gahima Rwanda 2005 – 2007 n/a
Paul Garlick United Kingdom 2005 International Advisor
(Council of Europe,
Organization for Security and
Cooperation in Europe)
Paul Melchior Brilman Netherlands 2005 – 2009 n/a
Almiro Simões Rodrigues Portugal 2005 – 2009 International Judge (ICTY)
Georges Reniers Belgium 2005 – 2009 n/a
Pietro Spera Italy 2005 – 2009 n/a
Lars Folke Bjur Nyström Finland 2005 – 2009 n/a
Richard S. Gebelein United States 2005 – 2007 n/a
Tore Ingvar Lindseth Norway 2005 – 2008 n/a
Roland Dekkers Netherlands 2005 – 2008 n/a
Shireen Avis Fisher United States 2005 – 2008 n/a
Manfred Dauster Germany 2005 – 2007 n/a
Malcolm Simmons United Kingdom 2006 – 2008 n/a
Marie Tuma Sweden 2006 – 2010 International Prosecutor

160
See DAVID TOLBERT & ALEKSANDAR KONTIĆ, INTERNATIONAL CRIMINAL LAW SERVICES (ICLS), FINAL REPORT
OF THE INTERNATIONAL CRIMINAL LAW SERVICES EXPERTS ON THE SUSTAINABLE TRANSITION OF THE REGISTRY
AND INTERNATIONAL DONOR SUPPORT TO THE COURT OF BOSNIA AND HERZEGOVINA AND THE PROSECUTOR’S
OFFICE OF BOSNIA AND HERZEGOVINA IN 2009 paras. 97-98 (2008); Avril McDonald, Bosnia’s War Crimes
Chamber and the Challenges of an Opening and Closure, in THE LEGAL REGIME OF THE INTERNATIONAL CRIMINAL
COURT: ESSAYS IN HONOUR OF PROFESSOR IGOR BLISHCHENKO 308 (José Doria, Hans-Peter Gasser, & M. Cherif
Bassiouni eds., 2009); MARTIN-ORTEGA & HERMAN, supra note 91, at 8-9.

161
See Chapter 6 § II.
95
(ICTY)
Merja Helena Halme-
Korhonen
Finland 2006 – 2009 n/a
Mitja Kozamernik Slovenia 2006 – 2012 n/a
Marjan Pogačnik Slovenia 2007 – 2010 n/a
Elizabeth Fahey United States 2007 – 2009 n/a
Patricia Whalen United States 2007 – 2011 n/a
Carol Peralta Malta 2007 – 2011 International Judge (Kosovo)
Robert Carolan United States 2008 – 2009 International Judge (Kosovo)
David Re Australia 2008 – 2010 International Prosecutor
(ICTY)
Snezhana Botusharova-
Doicheva
Bulgaria 2008 – 2010 International Judge
(European Court of Human
Rights)
John Fields United States 2008 – 2009 International Judge (Kosovo),
International Mediator
(United Nations)
Phillip Weiner United States 2008 – 2012 International Prosecutor
(ICTY)

In the early years of the functioning of the State-Court (2005-2007), international judges were
recruited by the High Representative and confirmed in their office through his Bonn Powers. In
later years (post-2007), international judges were confirmed in their office through, in theory, the
same procedure as national judges, which involved a vote in the High Judicial and Prosecutorial
Council (Visoko sudsko i tužilačko veće) or VSTV, an independent body set up in 2002 to vet
and appoint judges and prosecutors throughout the country.
162
In practice, however, the VSTV
had very little input in the appointment of the international judges post-2007, as the primary
consideration in the appointments came from those countries which would agree to finance the
appointment (i.e. through donations covering the salary of the international judge in question).
163

These countries would then insist that their own nationals fill the position that they were funding
and play a large role in determining who said national would be.
164
Once the decision was made,
the name would then be put forward to the VSTV, which in turn would confirm the appointment.
Such a system could be critiqued as problematic, in that it had the possibility to result in an
uneven quality of personnel that ultimately assumed the international judgeships.
165
International

162
The High Judicial and Prosecutorial Council or VSTV was established in order to attempt to depoliticize the
appointment of judges and prosecutors in Bosnia-Herzegovina. The VSTV is composed of a 15 member council
(made up of judges and prosecutors from the various Bosnian state and entity courts, as well as private attorneys
appointed by their respective bar associations) that vets, appoints, and disciplines judges and prosecutors throughout
the country. See Zakon o Visokom sudskom i tužilačkom vijeću Bosne i Hercegovine [Law on the High Judicial and
Prosecutorial Council of Bosnia-Herzegovina], Službeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia-
Herzegovina], No. 25/04, 93/05, & 15/08.

163
Interview with Phillip Weiner, International Judge, State-Court of Bosnia-Herzegovina, in Sarajevo, Bosnia-
Herzegovina (Jul. 24, 2011).

164
Id.

165
This being said, figure 4.04 does show a clear emphasis on prior international legal experience in the recruitment
(c. 2007-2008) of the final six international judges (all of whom had extensive international legal experience prior to
joining State-Court), as opposed to the clear lack of prior international experience of the majority of their
predecessors recruited in the preceding period (c. 2005-2007).

96
judges could serve two year terms on the State-Court, with the maximum of one additional
166

two year appointment (for a grand total of four years), while national judges serve on the Court
for life.
167

The State-Court stands as a unique legal institution within Bosnia-Herzegovina, given the
key role of transnational actors in its establishment and the accompanying internationalization of
its judicial arm in the early years of its existence (2005-2012). Certainly, as seen in figure 4.04
above, the previous experience of the international judges appointed to the State-Court varied
greatly --- from judges with no international experience whatsoever, to judges with advisory
experience with major international organizations, to finally judges with long-time experience on
the ICTY and other international criminal tribunals. The role of the international judges on the
State-Court will be a subject that will be returned to in Chapter 5.
168

Aside from the State-Court discussed above, the only other judicial body within the
Bosnian central government (as opposed to within the entities), is the Constitutional Court of
Bosnia-Herzegovina (Ustavni sud Bosne i Hercegovine). As discussed earlier in this chapter,
169

the Constitution of Bosnia-Herzegovina severely limits the central Bosnian government in its
powers and competencies, with most decision-making of any importance taking place on the
entity level.
170
Given this state of affairs, the Constitutional Court
171
is constrained in its
jurisdiction and basically acts as a referee deciding disputes between the governmental levels
(i.e. central and entity) arising from specific constitutional provisions.
172
It comes as no surprise
then that the vast majority of judicial decision-making in Bosnia-Herzegovina takes place on the
entity level, and it is to the structure of the courts in the entities to which the conversation now
turns.

2. Local District and Cantonal Courts in the Entities

166
It was however possible for certain international judges to serve two additional two year appointments (for a
grand total of six years) if they were originally appointed by the High Representative (through his Bonn Powers) and
then subsequently reappointed the first time by the VSTV.

167
Zakon o Visokom sudskom i tužilačkom vijeću Bosne i Hercegovine, supra note 162, at art. 23.

168
See Chapter 5 § II.

169
See supra § I(D)(1).

170
Both the Republic of Srpska and the Federation have their own separate entity constitutions and entity
constitutional courts.

171
Like many continental European countries, Bosnia-Herzegovina follows a “Kelsenian court model” (named after
the Austrian jurist and legal philosopher Hans Kelsen) in which one specialized court has sole responsibility to
adjudicate over constitutional disputes. This model stands in contrast to the practice followed in some other
countries (the most notable being the United States), where all courts of general jurisdiction (from the lowest level to
the highest) possess the power of constitutional review.

172
See The General Framework Agreement for Peace in Bosnia and Herzegovina, supra note 26, at Annex 4
(Constitution of Bosnia-Herzegovina), art. 6(3).

97
The entity level courts in Bosnia-Herzegovina are the hub of judicial activity in the
country. The two entities, the Republic of Srpska and Federation, share more similarities than
differences in the structure of their courts, with the key difference coming not so much from
internal structure, but rather in the form of territorial reach, as each court system is tied
geographically to its own entity. At the heart of each system are the intermediate level courts that
sit between the trial and highest appellate levels --- in the case of the Republic of Srpska this
would be the district courts (okružni sudovi), and in the case of the Federation the cantonal courts
(kantonalni sudovi).

District courts in the Republic of Srpska sit halfway between the basic courts (osnovni
sudovi), which are the courts of general first instance, and the higher appellate levels which are
the entity Supreme (Vrhovni sud) and Constitutional courts (Ustavni sud). The basic courts enjoy
first instance (trial level) jurisdiction over lower level criminal and civil matters and number 19
in total throughout the entity.
173
District courts enjoy limited first instance jurisdiction over
serious criminal matters and second instance (appellate) jurisdiction over all basic court
decisions --- there are 5 district courts in total throughout the entity.
174
The Republic of Srpska
Supreme Court is the highest court of appeal for non-constitutional issues,
175
while the
Constitutional Court is the highest court of appeal for entity level constitutional issues.
176

Cantonal courts in the Federation sit halfway between the municipal courts (opštinski
sudovi), which are the courts of general first instance, and the higher appellate levels which are
the entity Supreme (Vrhovni sud) and Constitutional courts (Ustavni sud). The municipal courts
enjoy first instance (trial level) jurisdiction over lower level criminal and civil matters and
number 28 in total throughout the entity.
177
Cantonal courts enjoy limited first instance
jurisdiction over serious criminal matters and second instance (appellate) jurisdiction over all
municipal court decisions --- there are 10 cantonal courts in total throughout the entity.
178
The
Federation Supreme Court is the highest court of appeal for non-constitutional issues,
179
while
the Constitutional Court is the highest court of appeal for entity level constitutional issues.
180

173
Zakon o sudovima Republike Srpske [Law on the Courts of the Republic of Srpska], Službeni glasnik Republike
Srpske [Official Gazette of the Republic of Srpska], No. 27/12, arts. 26, 30.

174
Id. at arts. 28, 31.

175
Id. at arts. 22, 35.

176
Zakon o ustavnom sudu Republike Srpske [Law on the Constitutional Court of the Republic of Srpska], Službeni
glasnik Republike Srpske [Official Gazette of the Republic of Srpska], No. 104/11.

177
Zakon o sudovima u Federaciji Bosne i Hercegovine [Law on the Courts of the Federation of Bosnia-
Herzegovina], Službene novine Federacije BiH [Official Gazette of the Federation of BiH], No. 38/05, arts. 22, 27.

178
Id. at arts. 25, 28.

179
Id. at arts. 26, 29.

180
Zakon o postupku pred Ustavnim sudom Federacije Bosne i Hercegovine [Law on the Procedure Before the
Constitutional Court of Bosnia-Herzegovina], Službene novine Federacije BiH [Official Gazette of the Federation of
BiH], No. 6/95.
98
Figure 4.05 below presents a simplified representation of the structure of the judiciary in Bosnia-
Herzegovina:

99
Figure 4.05: The Judicial Structure of Bosnia-Herzegovina

CENTRAL GOVERNMENT ENTITY
181

Republic of Srpska
Constitutional Court of
Bosnia-Herzegovina
(Ustavni sud Bosne i
Hercegovine)

Federation of Bosnia-Herzegovina

181
For the sake of brevity, the judicial structure of the Brčko District has not been included.
Constitutional Court
(Ustavni sud)
* Highest court of
appeal for entity level
constitutional issues

Supreme Court
(Vrhovni sud)
* Highest court of
appeal for non-
constitutional issues

5 District Courts
(okružni sudovi)

19 Basic Courts
(osnovni sudovi)
State-Court of Bosnia-
Herzegovina
(Sud Bosne i
Hercegovine)
Constitutional Court
(Ustavni sud)
* Highest court of
appeal for entity level
constitutional issues

Supreme Court
(Vrhovni sud)
* Highest court of
appeal for non-
constitutional issues

10 Cantonal Courts
(kantonalni sudovi)

28 Municipal Courts
(opštinski sudovi)
Jurisdiction over limited
central government level
constitutional issues
100
B. The Jurisdictional Foundations for the Prosecution of International Crimes
in Bosnia-Herzegovina

Criminal cases in Bosnia-Herzegovina originating from offenses committed during the
1990s conflict are prosecuted based on international criminal law. The international criminal
doctrines of crimes against humanity, genocide, and war crimes are, with several minor caveats
that will be discussed below, part of domestic Bosnian law and directly applicable. Earlier in this
chapter, the process was discussed through which then High Representative Paddy Ashdown
spearheaded the promulgation of new Criminal Procedure Codes (Zakon o krivičnom postupku)
for Bosnia-Herzegovina (on the central government and entity levels) in January 2003.
182
These
new Criminal Procedure Codes had the effect of attempting to initiate the transformation of the
formerly inquisitorial legal model in place in Bosnia-Herzegovina into an accusatorial one.
183

What was left out of the earlier conversation was the fact that High Representative Ashdown also
used his Bonn Powers in January 2003 to also impose a Criminal Code (Krivični zakon)
184
for
Bosnia-Herzegovina on the central government level. Prior to 2003, Bosnia-Herzegovina had
never had a country-wide criminal code, as criminal law was an area exclusively left for the two
entities to administer. The 2003 Criminal Code, with its new category of offenses exclusively
under the purview of the central government, was a unique centralizing institution in a highly
fragmented judiciary that would also have important consequences for the prosecution of
international crimes in the country. Before an in-depth discussion of the 2003 Criminal Code can
proceed, however, a step back must be taken and a discussion presented on the legal framework
in place for the prosecution of international crimes in Bosnia-Herzegovina, prior to its
promulgation in 2003.

1. The 1977 SFRJ Criminal Code

Earlier in this chapter, an extensive discussion was presented regarding the 1977 SFRJ
Criminal Procedure Code that was in place in Bosnia-Herzegovina until 2003.
185
What was left
out of that discussion was that the 1977 SFRJ Criminal Procedure Code was not the only legal
remnant of the former Yugoslavia, still in active operation in Bosnia-Herzegovina in the years
following the conflict of the 1990s. Substantive criminal law was also represented by another
residual Yugoslav statute that will now be discussed --- the 1977 SFRJ Criminal Code (Krivični
zakon).
186
Criminal procedure in the old SFRJ was a federal prerogative; there was one criminal

182
See supra § II(C).

183
As discussed earlier in this chapter, the new Criminal Procedure Codes eliminated the position of the non-
partisan investigative judge and instead shifted control over the judicial process to the prosecution and defense. New
trial procedures limiting the role of the presiding judge in the questioning of witnesses, and introducing concepts
such as the authentication of evidence at trial and the cross examination of witnesses were also instituted.

184
See Krivični zakon Bosne i Hercegovine [Criminal Code of Bosnia-Herzegovina], Službeni glasnik Bosne i
Hercegovine [Official Gazette of Bosnia-Herzegovina], No. 3/03.

185
See supra § II(C)(1).

186
See Krivični zakon SFRJ [Criminal Code of the SFRJ], Službeni list SFRJ [Official Gazette of the SFRJ], No.
44/76 & 36/77.

101
procedure code in place applying to all six republics in the federal union.
187
On the other hand,
the responsibility over substantive criminal law was bifurcated between the two levels, federal
and republic, with the federal authorities having competence over the general fundamental
principles and crimes --- the so-called “general part” of the criminal law; and the republic
authorities having competence over more specific crimes --- the so-called “special part” of the
criminal law.
188
Consequently, while each republic had its own criminal code, there was also one
federal criminal code (applicable to all the republics) covering general fundamental principles of
the criminal law.
189
This federal criminal code, the 1977 SFRJ Criminal Code, is important to the
current conversation because it included provisions incorporating the international offenses of
genocide and war crimes into domestic Yugoslav law. Until the appearance of the 2003 Criminal
Code of Bosnia-Herzegovina, it would be the applicable provisions of the 1977 SFRJ Criminal
Code, still in residual use even after the breakup of Yugoslavia, and the subsequent
independence of Bosnia-Herzegovina, which would define the incorporation of international
offenses into domestic Bosnian law.

Of the three main doctrinal areas of international criminal law --- crimes against
humanity, genocide, and war crimes --- the 1977 SFRJ Criminal Code incorporated only
genocide and war crimes into domestic law. The absence of crimes against humanity from the
Code is directly attributable to the fact that in the 1970s, when the Code was drafted, there was
little international consensus on what constituted a crime against humanity. Recall from Chapter
3 that the end of the Second World War saw an initial burst of activity, followed by a nearly
forty year freeze, in the doctrinal development of crimes against humanity --- a freeze that only
expired in the 1990s with the establishment of first the ICTY and ICTR, and later of the
International Criminal Court (ICC).
190
As catalogued extensively in Chapter 3, it was these more
recent developments (i.e. within the ICTY, ICTR, and ICC) that contributed to crimes against
humanity’s status as a doctrine of international criminal law, currently subject to the presence of
recursive cycles of norm-making as numerous actors, on both the international and national
levels, struggled over competing claims and conflicts as to its meaning and application.
191

Though, as discussed, it makes no mention of crimes against humanity, the 1977 SFRJ
Criminal Code did incorporate both the international criminal offenses of genocide and war
crimes into domestic law. In regards to genocide, the Code’s definition followed that given in the

187
Ustav Socijalističke Federativne Republike Jugoslavije [Constitution of the Socialist Federal Republic of
Yugoslavia], Službeni list SFRJ [Official Gazette of the SFRJ], No. 9/74, art. 281(12).

188
Id. See also Stojanović, Perić, & Ignjatović, supra note 69, at para. 64; BAYER (1980), supra note 98, at 36 n.1;
DIMITRIJEVIĆ, STEFANOVIĆ-ZLATIĆ, & LAZIN, supra note 73, at paras. 20-21.

189
What are being referred to here as “fundamental principles” of the criminal law are such things as: acts and
omissions, mental state, causation, justification and excuse, inchoate crimes, and accomplice liability. See e.g.
GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART (2nd ed. 1961); ZORAN STOJANOVIĆ, KRIVIČNO PRAVO,
OPŠTI DEO (1st ed. 2000).

190
See Chapter 3 § II(A)(1).

191
See Chapter 3 § II(A)(2).

102
Genocide Convention exactly.
192
The Code’s treatment of war crimes closely followed those of
the Geneva Conventions, marking clear protections for civilians and other non-belligerents in
warfare through prohibitions against willful killing (i.e. murder),
193
torture / inhumane
treatment,
194
destruction of property,
195
forcibly compelling service in enemy forces,
196
the
suspension of due process rights,
197
unlawful deportation or transfer,
198
and hostage taking.
199

Though dated in some respects (e.g. the failure to include crimes against humanity amongst its
list of international offenses), the 1977 SFRJ Criminal Code would retain a central position in the
prosecution of international crimes in the country until the promulgation of the Criminal Code of
Bosnia-Herzegovina by the High Representative in 2003. Indeed, as shall be discussed in
Chapter 5,
200
in many ways the central position of the 1977 SFRJ Criminal Code in the
prosecution of international crimes in Bosnia-Herzegovina still remains.

2. The 2003 Criminal Code of Bosnia-Herzegovina

The reorganization of the State-Court in 2003 did not occur in a vacuum. When the
Section for International Crimes was created within the Court, accompanying legislation was
also needed to establish the statutory basis for this new section’s jurisdiction. Consequently, the
State-Court’s reorganization occurred in parallel with the promulgation of a new Criminal Code
of Bosnia-Herzegovina, which would establish special categories of crimes under the jurisdiction
of the central government (as opposed to the entities), and thus under the purview of the central

192
Compare Krivični zakon SFRJ, supra note 186, at art. 141 and Convention on the Prevention and Punishment of
Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, art. 2.

193
Compare Krivični zakon SFRJ, supra note 186, at arts. 142-144, 146 and Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S.
31, art. 50 [hereinafter Geneva Convention I]; Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85, art. 51
[hereinafter Geneva Convention II]; Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12,
1949, 75 U.N.T.S. 135, art. 130 [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287, art. 147 [hereinafter Geneva Convention IV].

194
Compare Krivični zakon SFRJ, supra note 186, at arts. 142-144, 150 and Geneva Convention I, supra note 193,
at art. 50; Geneva Convention II, supra note 193, at art. 51; Geneva Contention III, supra note 193, at art. 130;
Geneva Contention IV, supra note 193, at art. 147.

195
Compare Krivični zakon SFRJ, supra note 186, at art. 142 and Geneva Convention I, supra note 193, at art. 50;
Geneva Convention II, supra note 193, at art. 51; Geneva Contention IV, supra note 193, at art. 147.

196
Compare Krivični zakon SFRJ, supra note 186, at arts. 142, 144 and Geneva Contention III, supra note 193, at
art. 130; Geneva Contention IV, supra note 193, at art. 147.

197
Compare Krivični zakon SFRJ, supra note 186, at arts. 142, 144 and Geneva Contention III, supra note 193, at
art. 130; Geneva Contention IV, supra note 193, at art. 147.

198
Compare Krivični zakon SFRJ, supra note 186, at art. 142 and Geneva Contention IV, supra note 193, at art. 147.

199
Compare Krivični zakon SFRJ, supra note 186, at art. 142 and Geneva Contention IV, supra note 193, at art. 147.

200
See Chapter 5 § II(B).
103
governments judicial arm, the State-Court.
201
The 2003 Criminal Code of Bosnia-Herzegovina
incorporated the international offenses of crimes against humanity, genocide, and war crimes
into domestic Bosnian law and updated the statutory basis for the domestic prosecution of these
international crimes, which had formerly been controlled by the 1977 SFRJ Criminal Code.

Unlike the 1977 SFRJ Criminal Code, the 2003 Criminal Code of Bosnia-Herzegovina
incorporates all three main doctrinal areas of international criminal law --- crimes against
humanity, genocide, and war crimes --- into domestic law. Throughout the Code’s treatment of
these international offenses, the constant influence of both the ICTY and Rome Statute can be
seen. Indeed, to say that the Code simply incorporates large-scale portions of these international
instruments into domestic Bosnian law would not be a stretch.
202
Not surprisingly then, the
Code’s treatment of crimes against humanity tracks closely the Rome Statute. Recall from
Chapter 3 that one of the key indications of whether crimes against humanity was subject to the
presence of recursive cycles (indicating competing claims and conflicts as to its meaning and
application), or if instead recursive cycles were not present (indicating acceptance and authority
as to meaning and application), was the debate over the drafting of Article 7 of the Rome statute
(governing crimes against humanity).
203
These debates centered on various issues,
204
but the key
take-away point is that the conflict over meaning indicated legal recursivity in relation to crimes
against humanity. Stepping into this debate, the 2003 Criminal Code of Bosnia-Herzegovina
choose to follow the Rome Statute in its articulation of crimes against humanity, and more or
less wholly incorporated Article 7 of the Statute.
205
In regards to genocide, the Code’s definition
of genocide follows that of the Genocide Convention exactly.
206
As was discussed in Chapter 3,
the definition provided by the Genocide Convention in 1948 for the offense was widely adopted
by a variety of international instruments (including the ICTY and Rome Statutes) over the
ensuing decades.
207
In dealing with war crimes, the Code was again heavily influenced by the

201
See Zakon o krivičnom postupku Bosne i Hercegovine, supra note 93, at art. 23.

202
See e.g. McDonald, supra note 160, at 312; RONEN, supra note 125, at 41.

203
See Chapter 3 § II(A).

204
See id. for a detailed discussion of these issues which included whether in include: (1) an “armed conflict”
requirement (as contained in the ICTY Statute but absent from other later international instruments such as the
Rome Statute) for crimes against humanity; and (2) which specific enumerated acts could be defined as crimes
against humanity.

205
Compare Krivični zakon Bosne i Hercegovine, supra note 184, at art. 172 and Rome Statute of the International
Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, art. 7 (So then, for example, notice here how Article 172 of the
Criminal Code of Bosnia-Herzegovina, in following the Rome over ICTY Statute, does not require the armed
conflict nexus for the commission of a crime against humanity.).

206
Compare Krivični zakon Bosne i Hercegovine, supra note 184, at art. 171 and Convention on the Prevention and
Punishment of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277, art. 2.

207
See Chapter 3 § II(B).

104
Rome Statute,
208
although some of the Statute’s more expansive readings of the acts that could
constitute war crimes were not adopted.
209

Figure 4.06 below presents a simplified summary of the incorporation of international
crimes into domestic Bosnian law through the 1977 SFRJ Criminal Code and 2003 Criminal
Code of Bosnia-Herzegovina:

Figure 4.06: International Crimes under Domestic Bosnian Law

OFFENSE LEGAL SOURCE
1977 SFRJ CRIMINAL CODE 2003 CRIMINAL CODE OF
BOSNIA-HERZEGOVINA:
CRIMES AGAINST HUMANITY n/a

Comment: Crimes against humanity
absent from the Code --- absence
attributable to the fact that when the
Code was drafted, there was little
international consensus on what
constituted a crime against humanity.

Article 172

Comment: Code more or less wholly
incorporates the relevant portions of the
Rome Statute governing crimes against
humanity
GENOCIDE Article 141

Comment: Code’s definition of genocide
follows that given in the Genocide
Convention exactly
Article 171

Comment: Code’s definition of genocide
follows that given in the Genocide
Convention exactly
WAR CRIMES Articles 142-156

Comment: Code’s treatment of war
crimes closely follows those of the
Geneva Conventions, marking clear
protections for civilians and other non-
belligerents in warfare
Articles 173-175, 177-179

Comment: Code heavily influenced by
the Rome Statute although some of the
Statute’s more expansive readings of the
acts that could constitute war crimes
were not adopted

* Please note that an in-depth comparison of both the SFRJ and Bosnian Criminal Codes to the ICTY and Rome
Statutes (with each offense broken down in detail and the original statutory language included) is contained in
Appendix IV.

C. The Prosecution of International Crimes in Bosnia-Herzegovina

As discussed above, the large-scale reorganization of the State-Court in 2003 was a direct
result of a two-pronged ICTY “Completion Strategy,” which sought to enable the Tribunal to
transfer cases out of its own docket to national level courts in the post-Yugoslav successor states
(the so-called “Rule 11bis” procedure),
210
and in parallel build up the judicial capacity of the
successor states to both try these new transferred ICTY cases and the back-logged “Rules of the

208
Compare Krivični zakon Bosne i Hercegovine, supra note 184, at art. 173 and Rome Statute of the International
Criminal Court, supra note 205, at art. 8.

209
McDonald, supra note 160, at 312-313; RONEN, supra note 125, at 41.

210
See supra note 140.

105
Road” (RoR) category A cases.
211
As part of this capacity building process, the ICTY’s RoR
Unit within the Office of the Prosecutor (OTP) stopped reviewing domestic Bosnian indictments
related to alleged international criminal offense in October 2004, and placed the domestic
indictment and prosecution of such cases in the hands of Bosnian institutions. The procedure in
place for such prosecutions post October 2004 involved a recreation of the old RoR procedure,
but with the role of ICTY replaced by that of the State-Court, which now enjoyed exclusive
jurisdiction over such cases,
212
but which could, at its discretion, transfer such cases (those
deemed less “sensitive”) to entity level district and cantonal courts after the issuance of an
indictment.
213
The prosecution of international crimes in Bosnia-Herzegovina post-October
2004, then, was based on a dual-track model that left the more sensitive cases within the
jurisdiction of the State-Court, but funneled the majority of cases back to the entity level district
and cantonal courts.
214
Figure 4.07 below presents a simplified representation of the prosecution
of international crimes in Bosnia-Herzegovina pre / post October 2004:

211
Recall that the “Rules of the Road” (RoR) were a procedure through which any domestic indictment (by one of
the post-Yugoslav successor states) for international crimes had to first be approved by the RoR Unit within the
ICTY’s Office of the Prosecutor (OTP) before the indictment could then proceed in the domestic court.

212
Zakon o krivičnom postupku Bosne i Hercegovine, supra note 93, at art. 23(1).

213
Id. at art. 27. The standards for determining the “sensitivity” of such cases involved factors such as: the
seriousness of the crime, the status of the accused, the necessity of witness protection, and conditions in the entity
level district and cantonal courts where the case could potentially be transferred. See Pravilnik o pregledu predmeta
ratnih zločina [Book of Rules on the Review of War Crimes Cases], KTA-RZ-47/04-1 (Dec. 28, 2004).

214
For a critique of the hegemony of the State-Court in the new post-October 2004 model for the prosecution of
international crimes in Bosnia-Herzegovina, see HUMAN RIGHTS WATCH, STILL WAITING: BRINGING JUSTICE FOR
WAR CRIMES, CRIMES AGAINST HUMANITY, AND GENOCIDE IN BOSNIA AND HERZEGOVINA’S CANTONAL AND
DISTRICT COURTS 12-17 (2008).

106
Figure 4.07: The Prosecution of International Crimes in Bosnia-Herzegovina Pre / Post
October 2004

Pre-October 2004 Post-October 2004

Right of Appeal to entity level Right of Appeal to entity level Right of Appeal to State-
Supreme Court Supreme Court Court Appellate Chamber

Trial held in entity level district Trial held in entity level district Trial held in central
(Republic of Srpska) or cantonal Republic of Srpska) or cantonal government level State-Court
(Federation) court (Federation) court

If Approval granted, Indictment issued If Approval granted, Indictment issued
by Bosnian authorities by Bosnian authorities

Indictment submitted to ICTY OTP for Indictment submitted to State-Court of
Approval Bosnia-Herzegovina for Approval

If warranted, Indictment drafted If warranted, Indictment drafted

Investigation by Bosnian authorities Investigation by Bosnian authorities
(entity level) (central government level)

107
SUMMARY

This chapter has provided a brief historical note on Bosnia-Herzegovina from its time as
a province of the Ottoman Empire to the violent conflict that followed its emergence as an
independent country in the 1990s, and then moved on to a discussion of the key changes that
were initiated in its legal system by transnational actors in 2003. These changes had the effect of
attempting to transform the legal model in the country from an inquisitorial one in the French
tradition of bureaucratic decision-making to a more accusatorial one in the English tradition of
decentralized justice. With this essential background in place, the bulk of this chapter then
moved on to analyzing the three key Bosnian judicial institutions (and the complex jurisdictional
set-up that underpins their work) that investigate and prosecute the international crimes
committed in the country during the 1990s conflict. The key domestic legacy of the ICTY in
Bosnia-Herzegovina has been a complex dual-track model of justice that places the most
sensitive international criminal cases within the jurisdiction the central government level State-
Court of Bosnia-Herzegovina, but funnels the majority of cases back to entity level district and
cantonal courts. Each of these judicial institutions has a unique institutional design that may then
possibly play a role in either magnifying or diffusing transnational actor influence. The
magnification and / or diffusion of transnational actor influence in Bosnia, coupled with the
combined role of recursive cycles of norm-making (as discussed in chapter 3) and institutional
design (i.e. in the context of the three very different Bosnian courts surveyed), will be the subject
of the next chapter.

108
Chapter
CRIMINAL PROCEDURE IN THE
BOSNIAN COURTS: STAGE 3
5

The hypothesis this study seeks to test is whether legal recursivity and / or institutional
design have had any bearing on the attempts of transnational actors to change the procedure
through which criminal cases in Bosnia-Herzegovina (Bosna i Hercegovina) are adjudicated.
Chapter 2 introduced a 3-stage inter-disciplinary framework to conduct this test. This framework
proposed to offer a systematic operationalization of the variables driving the relationships under
study, as well as more explicitly identify the sequence of processes that affect the ability of
transnational actors to influence domestic state politics. Chapter 3 dealt with stage 1 of the
framework by assessing the presence (or lack thereof) of legal recursivity against the three main
doctrinal areas of international criminal law (crimes against humanity, genocide, and war
crimes). Chapter 4 shifted to stage 2 of the framework by discussing how the three main
doctrinal areas of international criminal law discussed in Chapter 3 are applied in three very
different domestic Bosnian judicial institutions (i.e. the State-Court on the central government
level and the entity level district and cantonal courts), each with a very different institutional
design that can possibly play a role in either magnifying or diffusing transnational actor
influence. This chapter moves on to the final stage of the framework through testing whether
legal recursivity and / or institutional design have had any bearing on the attempts of
transnational actors to change the procedure through which criminal cases in Bosnia-
Herzegovina are adjudicated.

The effects of legal recursivity and / or institutional design on transnational actor
influence in Bosnia-Herzegovina will be investigated through a research design that segregates
the judgments of the Bosnian State (N = 49), district (N = 21), and cantonal courts (N = 38) and
then codes them according to the doctrinal issue area of international criminal law they dealt
with (i.e. crimes against humanity, genocide, and war crimes). A year to year longitudinal
analysis (2004-2010) will be utilized in order to combat threats to the internal validity of any
findings, and the judgments of the Bosnian district and cantonal courts will serve as non-
equivalent controls (on the Bosnian State-Court) for the mediating effect of institutional design.
What is being analyzed here will be (a) the effect of legal recursivity; and (b) the mediating
effect of institutional design on whether the judicial institution in question continued to attempt
to apply the old pre-2003 inquisitorial criminal procedure, or whether they applied the new post-
2003 accusatorial criminal procedure model. The use of pre-2003 criminal procedure versus
post-2003 procedure will operationalized through the structure of the judicial opinions ---
whether they concerned themselves with the detailed authentication of evidence and extensive
reference to precise statutes (over case-law), typical of opinions under the inquisitorial model; or
whether they focused on the analysis of evidence (over authentication), and references to
sometimes abstract case-law, typical of opinions under the accusatorial model.

I. Testing the Bosnian Case: Conceptualizing and Operationalizing the Dependent
Variable

109
The hypothesis that this study seeks to test is whether legal recursivity and / or
institutional design have had any bearing on the attempts of transnational actors to change the
procedure through which cases arising from international criminal offenses are adjudicated in
Bosnia-Herzegovina. Recall that in Chapter 3 the presence (or lack thereof) of recursive cycles in
the three main doctrinal areas of international criminal law (crimes against humanity, genocide,
and war crimes) was operationalized through the analysis of international jurisprudence,
scholarly commentary, and documentation and reports from international organizations and
domestic governments.
1
The purpose of this forthcoming section is to operationalize the
dependent variable so that then, with both variables ready to be measured, the stage is set to test
the Bosnian case.

Quite often, social scientists utilizing quasi-experimental research designs
2
are concerned
with studying the diversity of phenomena that occur in complex social settings. To engage in
empirical work, even if utilizing a quasi-experimental design, means that there must be some
assignment of a value or “measurement indicator” to the phenomena under study, for it is only
through doing this that what is being studied can be measured, however imperfectly.
3
Such a task
can prove particularly challenging when it involves not assigning rough numerical values to that
being studied, but instead utilizing classifications.
4
The process here involves linking concepts to
the observations that make up the relationship(s) being studied and then developing measurement
indicators for these conceptualizations. It is a process that is fraught with methodological pitfalls,
the most prominent being what Robert Adcock and David Collier have labeled “measurement
validity.”
5
Measurement validity refers to whether the values assigned to the variables under
observation accurately reflect the ideas that are being studied.
6
In other words, do the
classifications assigned to the variables accurately capture the “the ideas contained in the
corresponding concept” --- or put in another way, is the measurement “free from error” and
therefore “valid.”
7

1
Recall that this analysis was conducted with an eye towards identifying whether the key causal mechanisms that
have been identified as driving the process of legal recursivity were present or not.

2
See Chapter 1 § I(B) for a discussion of quasi-experimental research designs and of the numerous problems of
measurement associated with such designs.

3
See e.g. Henry E. Brady, Doing Good and Doing Better: How Far Does the Quantitative Template Get Us?, in
RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS 62-66 (Henry E. Brady & David Collier eds.,
2004); David Collier, Henry E. Brady, & Jason Seawright, Critiques, Responses, and Trade-Offs: Drawing Together
the Debate, in RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS 202-209 (Henry E. Brady &
David Collier eds., 2004); Paul Pennings, Hans Keman, & Jan Kleinnijenhuis, DOING RESEARCH IN POLITICAL
SCIENCE: AN INTRODUCTION TO COMPARATIVE METHODS AND STATISTICS 48-50 (Sage publications 2006).

4
E.g. “strong,” “weak,” “democratic,” “totalitarian,” etc.

5
See Robert Adcock & David Collier, Measurement Validity: A Shared Standard for Qualitative and Quantitative
Research, 95 AM. POL. SCI. REV. 529 (2001).

6
Id. at 529.

7
Id. at 530. See also KENNETH A. BOLLEN, STRUCTURAL EQUATIONS WITH LATENT VARIABLES 184 (Wiley 1989);
GARY KING, ROBERT O. KEOHANE, & SIDNEY VERBA, DESIGNING SOCIAL INQUIRY: SCIENTIFIC INFERENCE IN
QUALITATIVE RESEARCH 25 (Princeton University Press 1994); Gerardo L. Munck, Tools for Qualitative Research,
110

How one achieves measurement validity varies with what is being studied, but Collier
and Adcock do recommend a set of strategies that center on linking concepts with indicators
following a rigorous framework, as represented by figure 5.01 below:

in RETHINKING SOCIAL INQUIRY: DIVERSE TOOLS, SHARED STANDARDS 115-116 (Henry E. Brady & David Collier
eds., 2004).
111
Figure 5.01: Adcock and Collier on Linking Conceptualization to Operationalization
8

Level 1: Background Concept

The broad constellation of meanings and
understandings associated with a given concept.

Task: Conceptualization

Formulating a systematized concept
through reasoning about the background
concept.

Level 2: Systematized Concept

A specific formulation of a concept used by a
given scholar or group of scholars; commonly
involves an explicit definition.

Task: Operationalization

Developing, on the basis of a systematized
concept, one or more indicators for
scoring / classifying cases.

Level 3: Indicators

Also referred to as “measures” and “operationalizations.”
In qualitative research these are the operational definitions
employed in classifying cases.

Task: Scoring Cases

Applying these indicators to produce
scores for the cases being analyzed.

Level 4: Scores for Cases

The scores for cases generated by a particular indicator.
These include both numerical scores and the results of
qualitative classification.

8
Figure replicates chart provided in Adcock & Collier, supra note 5, at 531.
112
Level 1 is the starting point, and involves identifying the phenomena under study (the
“background concept”).
9
The task here is to move to level 2 by formulating “systematized
concepts” based on the “background concept” --- in other words distilling the system level
concept into some set of identifying characteristics (i.e. definition).
10
Once this task is
completed, one is ready to transition to level 3 where the “systematized concepts” are
operationalized through the formation of measurement indicators, at which point one has reached
level 4.
11
Measurement indicators can be numerical or, as is many times the case in qualitative
work, consist of classifications.
12
A key theme in Adcock and Collier’s checklist is the
separation of conceptualization from operationalization, manifested by the credo to
conceptualize the “background concept” into “systematized concepts” and to then operationalize
at the “systematized concept” level. It is at then at this level then that measurement validity must
take place which, according to Adcock and Collier, makes logical sense as it is “background
concepts” (e.g. “democracy,” or “rule of law”) that tend to be the ones that are contested in the
social sciences, versus “systematized concepts” that are context specific to the goals and research
aims of individual studies.
13

With an adequate background on the dual processes of linking concepts to observations
now provided, the stage is now set to specifically apply Adcock and Collier’s framework to
criminal procedure as practiced in Bosnia-Herzegovina post-2003, and to test whether legal
recursivity and / or institutional design had any bearing on the attempts of transnational actors to
shift the country’s criminal procedure from a “civil” or inquisitorial model based of the post-
revolutionary French criminal codes, to a more “common” or accusatorial model based on the
English tradition of de-centralized justice. The focus here is on (a) the effect of legal recursivity;
and (b) the mediating effect of institutional design on whether judicial institutions in Bosnia-
Herzegovina continued to attempt to apply the old pre-2003 inquisitorial criminal procedure, or
whether they applied the new post-2003 accusatorial criminal procedure model. As the data that
will be utilized to test this hypothesis consists of legal judgments from Bosnia-Herzegovina’s
courts, a key concern is the operationalization of the use of pre-2003 criminal procedure versus
post-2003 procedure through the structure of judicial opinions. It is to this question that this
study will now turn.

A. Level 1: Background Concept

In Chapter 1 a background note was presented on the cultural and historical factors that
gave rise to the development of two very distinct legal systems in Europe
14
--- an inquisitorial

9
Adcock & Collier, supra note 5, at 530-533.

10
Id. at 530-531, 533.

11
Id. at 530-531, 533-534.

12
Id.

13
Id. at 530-534.

14
See Chapter 1 § II.

113
one in the tradition of the French post-revolutionary legal codes --- broadly characterized by
hierarchical bureaucratic decision-making, broad evidentiary rules, and reliance on written
records; and an accusatorial one in the English tradition of decentralized justice --- broadly
identified as being characterized by more party-influenced discretionary decision-making, strict
evidentiary rules, and a reliance on oral arguments. For better or worse, when scholars today
refer to “Continental” or “civil law” systems and their “English” or “common law” counterparts
it is, in large part, the inquisitorial / accusatorial divide that they are describing --- especially
when in reference to criminal justice. Indeed, although the two terms, inquisitorial and
accusatorial, have been criticized as simplistic and misleading,
15
they nevertheless continue to be
used by specialist scholars in order to refer to the broad differences between those legal systems
inspired by the French post-revolutionary codes and those inspired by the English model of
decentralized justice.
16

Two key figures in comparative scholarship that have attempted to move the debate
beyond the inquisitorial / accusatorial divide, and instead towards a more rigorous and specific
definition of concepts, have been Robert A. Kagan and Mirjan R. Damaška. Focused on different
research questions, yet building on one another’s work, the scholarship of both Kagan and
Damaška points the way forward towards a more systematic conceptualization of the
inquisitorial and accusatorial models --- one that can then allow, per Collier and Adcock’s
strategies highlighted in figure 5.01, for the development of measurement indicators (i.e.
operationalization).

Robert A. Kagan’s primary concern is with the unique American procedural model of
legal adjudication which he identifies and labels as “adversarial legalism.”
17
Though his research

15
See e.g. Christopher Gane, Classifying Scottish Criminal Procedure, in CRIMINAL JUSTICE IN SCOTLAND 56 (Peter
Duff & Neil Hutton eds., 1999) (Yet the same author later goes on to say that though the terms inquisitorial and
accusatorial may be misleading, they remain “useful analytical tools.”); Kai Ambos, International Criminal
Procedure: “Adversarial”, “Inquisitorial” or Mixed?, 3 INT’L CRIM. L. REV. 1, 2-3 (2003) (“[T]he inquisitorial-
accusatorial divide has only, if at all, a meaning in historic, pre-revolutionary terms … modem criminal procedure is
governed by the principles of orality and immediacy … In this sense, the civil law model can be more accurately
described as ‘judge led’ … while the common law model is adversarial --- prosecution and defences being
‘adversaries’ --- or ‘coordinated.’”); John D. Jackson, The Effect of Human Rights on Criminal Evidentiary
Processes: Towards Convergence, Divergence or Realignment?, 68 M.L.R. 737, 747 (2005) (“This process of proof
is not easily categorised as ‘adversarial’ or ‘inquisitorial’ and might be better described as ‘problem solving.’ The
point here is that the traditional adversarial / inquisitorial dichotomy may not always prove a useful framework for
analysing the complexity of real-life processes of proof.”).

16
See e.g. Abraham S. Goldstein, Reflections on Two Models: Inquisitorial Themes in American Criminal
Procedure, 26 STAN. L. REV. 1009 (1974); Mireille Delmas-Marty, The Juge d’Instruction: Do the English Really
Need Him?, in THE GRADUAL CONVERGENCE: FOREIGN IDEAS, FOREIGN INFLUENCES, AND ENGLISH LAW ON THE
EVE OF THE 21ST CENTURY (Basil Markesins ed., 1994); Craig M. Bradley, The Convergence of the Continental and
the Common Law Model of Criminal Procedure, 7 CRIM. L.F. 471 (1996); Stephen C. Thaman, Miranda in
Comparative Law, 45 ST. LOUIS L.J. 581 (2001); Peter Duff, Changing Conceptions of the Scottish Criminal Trial:
The Duty to Agree Uncontroversial Evidence, in THE TRIAL ON TRIAL I: TRUTH AND DUE PROCESS (Antony Duff,
Lindsay Farmer, Sandra Marshall, & Victor Tadros eds., 2004); ); Michele Panzavolta, Reforms and Counter-
Reforms in the Italian Struggle for an Accusatorial Criminal Law System, 30 N.C. J. INT'L L. & COM. REG. 577
(2005); Thomas J. Reed, Admitting the Accused’s Criminal History: The Trouble with Rule 404(B), 78 TEMP. L.
REV. 201 (2005).

17
See ROBERT A. KAGAN, ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW (Harvard University Press 2001).
114
interest then is very specific, as a comparativist Kagan analyzes American modes of legal
adjudication through setting them against models utilized in other advanced industrialized
countries. Methodologically, Kagan sets about engaging in this comparative analysis through
setting up a typology that seeks to capture the complexity of legal adjudication through
bifurcating it between the following characteristics: (1) the organization of the decision-making
authority (whether it is organized hierarchically or more along the lines of participatory input);
18

and (2) the decision-making style (whether it is formal or informal).
19
Kagan’s typology is
represented in figure 5.02 below:

Figure 5.02: Kagan’s Typology of Legal Adjudication
20

ORGANIZATION OF DECISION-MAKING
AUTHORITY

DECISION-MAKING STYLE
Informal

Formal

Hierarchical

Expert / Political Judgment Bureaucratic Legalism
Participatory

Negotiation / Mediation Adversarial Legalism

The utility of Kagan’s typology stems from its embrace of the complexity inherent in legal
adjudication by moving beyond the problematic terms of inquisitorial and accusatorial --- which
have morphed into classically “conceptually stretched”
21
terms --- and instead seeking to create

18
Hierarchical decision-making is dominated by an official decision-maker (e.g. a judge) applying “authoritative
norms or standards” whilst participatory decision-making is more influenced by “disputing parties and their
lawyers.” See id. at 10.

19
Formal decision-making styles “invoke and insist on conformity to written legal procedures and preexisting legal
rights and duties,” while informal styles rely more on “discretionary judgment, bargaining, and [other] informal
processes.” See id. at 9.

20
Figure replicates chart provided in id. at 10.

21
First proposed and developed by social scientist Giovanni Sartori, “conceptual stretching” refers to the distortions
that result when established concepts are introduced to new cases without the required accompanying adaption.
Sartori developed his ideas in response to the methodological problems that had emerged in the social sciences as
the range of phenomena and institutions it had concerned itself to study had expanded. As social scientists undertook
to comparing various phenomena, Sartori’s key concern was with what could happen when established concepts
were introduced to new cases without any standards or precision as to their meanings. The end result of such
sloppiness was, according to Sartori, “conceptual stretching” --- vague and nebulous concepts devoid of any real
115
“diminished subtypes” that seek to add specificity to the categorization.
22
In doing this, Kagan
creates four new categories of legal adjudication that are much more rigorous in their defining
attributes than the catch-all terms of inquisitorial and accusatorial. An “expert / political
judgment” model, Kagan’s first category, features high levels of hierarchical decision-making
authority coupled with a more informal style --- examples that Kagan provides include the ways
in which traffic accidents in Japan are adjudicated by special police who come to the scene, take
testimony, and file a report ascertaining fault; and the awarding of workers compensation
benefits in New Zealand, which is done by an expert panel of physicians and social workers.
23

“Negotiation / mediation,” Kagan’s second category, features high levels of participatory
decision-making authority coupled with a more informal style --- examples Kagan provides
include negotiation between parties (whether private or representing the state) to resolve
disputes; and mediation which involves disputes being resolved by a neutral third party that
assists in the negotiation process but who cannot impose any solutions (i.e. unlike a judge or
arbitrator).
24
“Bureaucratic legalism,” Kagan’s third category, features high levels of hierarchical
decision-making authority coupled with a more formal style --- the archetype Kagan uses as an
example here is legal adjudication as classically practiced in continental Europe where
hierarchically organized official decision-makers (e.g. judges) seek to implement centrally
devised rules through dominating both the evidence gathering and decision-making process ---
leaving a very limited room for parties and their lawyers in the process.
25
In this way,
bureaucratic-legalism, as constructed by Kagan, relies more on detailed written files of evidence
(as collected and reviewed by the official decision-makers) in the adjudicatory process.
26

“Adversarial legalism,” Kagan’s fourth and final category, features high levels of participatory
decision-making authority coupled with a more formal style --- the archetype being legal
adjudication as practiced in the United States, where more independent and policy orientated
official decision-makers (e.g. judges) leave the door open to “novel legal arguments” (as framed
by the parties and their lawyers) in an attempt to shape legal decisions that are particularized on a
case-by-case basis.
27
In these ways, adversarial-legalism, as conceptualized by Kagan, magnifies

connotation. Conceptual stretching is problematic because it leads to an undefined conceptualization and “pseudo-
equivalence” that makes real comparison impossible. For a very useful edited volume that contains all of Sartori’s
seminal works on concept formation, as well as the responses of other well-known methodologists, see DAVID
COLLIER & JOHN GERRING (EDS.), CONCEPTS AND METHOD IN SOCIAL SCIENCE: THE TRADITION OF GIOVANNI
SARTORI (Routledge 2009).

22
For more on creating “diminished subtypes,” see David Collier & Steven Levitsky, Democracy with Adjectives:
Conceptual Innovation in Comparative Research, 49 WORLD POL. 430, 437-442 (1997); Gary Goetz, Points of
Departure: Intension and Extension, in CONCEPTS AND METHOD IN SOCIAL SCIENCE: THE TRADITION OF GIOVANNI
SARTORI 187 (David Collier & John Gerring eds., 2009).

23
KAGAN, supra note 17, at 10-11.

24
Id. at 10.

25
Id. at 11.

26
Id. at 11, 87-88.

27
Id. at 11-12.

116
the importance of oral advocacy (as put forward by each party and their lawyers) in the process
of adjudication.
28

Though intuitively one can see how Kagan’s bureaucratic legalism and his adversarial
legalism roughly correspond to the inquisitorial and accusatorial labels respectively, the strength
of his typology lies in the specificity (in definition) it is able to provide through breaking up the
“inquisitorial” and “accusatorial” models and instead reconfiguring them along a typological axis
that features the organization of decision-making authority on one axis, and the style of decision-
making on the other. By doing this, not only is Kagan able to provide a more systematic and
refined definition for each category, but he is also able to open the door to their extension across
a number of different cases. Thus, although Kagan labels adversarial legalism the distinctly
“American way of law”
29
he is, at the same time, able to isolate and analyze limited instances
where the United States employs elements of bureaucratic legalism, expert / political judgment,
and negotiation / mediation. Having said this, Kagan is very clear that his concern lies primarily
in identifying and analyzing the constellation of political, historical, and cultural forces that have
made adversarial legalism such a uniquely American model of legal adjudication.
30
The
importance of Kagan’s scholarship to this present study lies in the precision and elegance of his
typology as a path through which to move towards a more systematic conceptualization of the
inquisitorial and accusatorial models. This is all to the good, yet much more is needed for the
development measurement indicators (i.e. operationalization) --- indeed what is really required
here is the marrying of Kagan’s typology with a rigorous identification of the key identifying
characteristics of the inquisitorial and accusatorial models which, for all of their flaws,
31
still
remain “useful analytical tools,” as the standard labels used by specialist scholars in order to
refer to the broad differences between those legal systems inspired by the French post-
revolutionary codes and those inspired by the English model of decentralized justice.
32
It is for
an identification of these key identifying characteristics that one must turn to the work of Mirjan
R. Damaška.

Mirjan R. Damaška stands as one of the key figures in comparative criminal scholarship
that has attempted to move the debate beyond the simplistic dichotomy of the inquisitorial /
accusatorial divide, and instead towards a rigorous understanding of the key identifying
characteristics behind each model. Trained on the continent in the former Yugoslavia, but having

28
Id.

29
For Kagan, what makes “adversarial legalism” a distinctly American form of legal adjudication (i.e. as opposed to
other “adversarial” systems such as England) is the weakness of hierarchical authority in the imposition of standard
legal rules and the more overtly political policy decisions of American judges. See id.

30
See e.g. id. at 16 (“Adversarial legalism gives the United States the most politically and socially responsive court
system in the world. Compared to most national judiciaries, American judges are less constrained by legal
formalisms; they are more policy-oriented, more attentive to the equities (and inequities) of the particular
situation. In the decentralized American legal system, if one judge closes the door on a novel legal argument,
claimants can often find a more receptive judge in another court.”).

31
See supra note 15.

32
See supra note 16.

117
spent the bulk of his academic career in the United States, Damaška brings a level of
comparative expertise in his work on criminal procedure that remains unmatched. For Damaška,
the key to understanding different models of legal adjudication is to take a step back and
understand the differences in institutional logic behind each model.
33
Damaška’s aim is external
validity, and so he seeks to create “ideal types” that are generalizable across cases
34
--- his
purpose being to move beyond “loosely knit collections of characteristics” that identify in turn
inquisitorial
35
and accusatorial
36
models of legal procedure so generally and ambiguously as to
make focused comparison impossible.
37
The approach Damaška uses in this quest is very much a
historical institutionalist one,
38
as he looks to the procedural goals that states expect from legal
adjudication and extrapolates two very different underlying objectives --- one aimed at “policy
implementation” and the other based on “conflict resolution” --- these two very different
ambitions then pushing states towards one of two ends: either to “manage the lives of people and
steer society;” or instead to “maintain the social equilibrium and merely provide a framework for
social self-management and individual self-definition.”
39
States which seek to manage are
“active” states whereas states which look to merely maintain social equilibrium are “reactive”
states.
40
The active state then uses legal adjudication to implement policy whereas the reactive
state looks to legal adjudication to resolve conflict. Where one sees state authority that is
hierarchically employed and used to intervene in the lives of its citizens and implement, one
expects to find more classically “inquisitorial” legal procedure; and where one sees state
authority that is employed in a more coordinate manner and focused more on resolving disputes
in the lives of its citizens, one expects to find more classically “accusatorial” legal procedure.
41

33
See MIRJAN R. DAMAŠKA, THE FACES OF JUSTICE AND STATE AUTHORITY: A COMPARATIVE APPROACH TO THE
LEGAL PROCESS (Yale University Press 1986).

34
Id. at 5-6.

35
E.g. the inquisitorial model roughly defined as where one finds such things as “a career judiciary, preference for
rigid rules, and reliance on official documentation.” See id. at 4.

36
E.g. the accusatorial model roughly defined as where one finds such things as “jurors as decision makers,
discretion in decision making, and an attachment to oral evidence.” See id.

37
Id. at 4-5, 241-242. In this way it could be said that Damaška here is sharing Giovanni Sartori’s concerns with
avoiding “conceptual stretching,” though Damaška never specifically cites any of Sartori’s voluminous scholarship
on concept formation. See supra note 21 for a more in-depth discussion of Sartori and “conceptual stretching.”

38
See Chapter 2 § II(A)(2) for an in-depth discussion (including a review of the relevant literature) of historical
institutionalism.

39
DAMAŠKA, supra note X, at 11-12.

40
Id. at 10-14.

41
Id. at 11-12. Given their general (and often ambiguous) definitions, Damaška is naturally hesitant to fall back on
the old labels of inquisitorial and accusatorial, and instead seeks to center the discussion on the modes of legal
adjudication employed by his “active” versus “reactive” states. For Marin Shapiro, in his well-regarded review of
Damaška’s work, this is more an issue of semantics however as “[w]here we find hierarchical, interventionist
political authority, we will find legal procedures that are more or less inquisitorial in character. Where we encounter
non-hierarchical, non-interventionist political authority, we are likely to find legal procedures that are more or less
118

Though he tries to move beyond the problematic inquisitorial / accusatorial labels, and
instead seeks to center the discussion on the modes of legal adjudication employed by his
“active” versus “reactive” states,
42
the strength of Damaška’s work lies in the defining
characteristics he is able to introduce to the two models. In this way, an analysis of Damaška’s
scholarship is invaluable due to its ability to introduce a more systematic conceptualization of the
inquisitorial and accusatorial models --- one that can then allow, per Collier and Adcock’s
strategies highlighted in figure 5.01, for the development of measurement indicators (i.e.
operationalization).

Damaška characterizes inquisitorial models of adjudication as best understood as an
“official inquiry” where the bulk of procedural activity is performed by a state official of some
type (i.e. investigative judge)
43
rather than by the parties themselves (i.e. the prosecution and
defense in criminal cases) as in the accusatorial model.
44
The “trial” in this model of adjudication
does not occur as a single stage but rather must be viewed as a “one episode” in an ongoing
multi-stage sequence of “proceedings” that includes the collection of evidence, the initial
decision on guilt / innocence, and the hierarchical review of said decision.
45
The mechanism that
connects all of these proceedings together is the all-encompassing case file or dossier that
contains a written chronicle of all evidence collected, including summaries of all testimony and
records of all proof-taking activity.
46
The role of the dossier is to integrate all material gathered
during the multi-stage proceedings, and incorporate them into a systematized narrative that can
be turned to for decision-making and review --- at every stage, the dossier moves with the case
and is appended with additional written records.
47
It is due to this reliance on the dossier to
connect the various stages in the proceedings that leads to a reliance on written (over oral)
records that can be easily incorporated into the dossier.
48
The materials contained in the dossier
are distinguishable from the case records one finds in the accusatorial model in that they are not
piecemeal “internal official documents,” but rather all-encompassing “sources of information on
which to base both original and reviewing decisions.”
49
The “trial” then under such a model of
adjudication is not the penultimate stage where guilt / innocence is decided, as in the accusatorial

accusatorial in character.” See Martin Shapiro, Mirjan R. Damaška’s The Faces of Justice and State Authority, 35
AM. J. COMP. L. 835, 836 (1987) (book review).

42
See supra note 41.

43
See Chapter 4 § II(C)(1) for a discussion of the role of the ostensibly neutral investigative judge in inquisitorial criminal
procedure.

44
DAMAŠKA, supra note 33, at 3.

45
Id. at 47-48.

46
Id. at 50-51, 206.

47
Id.

48
Id.

49
Id.

119
model, but rather merely an “audit” of the multi-stage proceedings which came before.
50
Such a
model of legal adjudication, driven by state officials with a methodical progression in stages, all
the while accompanied by an all-encompassing written dossier, engenders a standard of decision-
making that Damaška categorizes as “logical legal reasoning.”
51
Logical legal reasoning looks to
craft solutions that are consistent to a set of wider general principles applicable across cases and
trades particularized justice (i.e. for the individual parties) for clarity and consistency.
52
It is the
control over the multi-stage proceedings by state officials which feeds into logical legal
reasoning --- for the alternative, a more party driven process, would naturally engender a
decision-making standard that would strive for justice more particularized to the parties
propelling it.

Damaška characterizes accusatorial models of adjudication as best understood as a
“contest” or “dispute” where the bulk of procedural activity is performed by the parties
themselves (i.e. the prosecution and defense in criminal cases) rather than by a neutral state
official of some type (i.e. investigative judge) as in the inquisitorial model.
53
Procedure under
this model of adjudication is concentrated, as the absence of state officials from guiding the
process, and the lack of an all-encompassing case file or dossier, results in single-stage
adjudication centered on a one-shot “trial” which will determine guilt / innocence.
54
As the
parties themselves collect competing sets of evidence (i.e. rather than the state in a single
dossier), it therefore also incumbent of the parties to present and challenge one another’s
evidence orally at trial.
55
It is due to this reliance on oral advocacy that leads to written records
assuming the role of “extraneous material,” whose service as a basis for decision-making and
review is only in augmentation of oral advocacy at the concentrated single-stage trial or “day in
court.”
56
Such a model of legal adjudication, driven by the opposing parties orally presenting
their own collected evidence at the “singular procedural episode” of the trial, engenders a
standard of decision-making that Damaška categorizes as “pragmatic legal reasoning.”
57

Pragmatic legal reasoning looks to craft solutions that are tailored to the specific facts of the case
at hand and trades clarity and consistency across cases for particularized justice.
58
It is the
control of the parties over a single-stage proceeding which feeds into pragmatic legal reasoning -
-- for the alternative, a more centrally state official controlled multi-stage process, would

50
Id. at 52-53.

51
Id. at 22.

52
Id. at 22-23, 68.

53
Id. at 3.

54
Id. at 57-58, 62.

55
Id. at 61-62, 101.

56
Id.

57
Id. at 22.

58
Id. at 22-23, 68.

120
naturally engender a decision-making standard that would strive for a uniform measure of justice
consistent and applicable across a wide spectrum of cases.

B. Level 2: Systematized Concept

Recall that the data that this study proposes to test in order to ascertain whether legal
recursivity and / or institutional design had any bearing on the attempts of transnational actors
(post-2003) to shift Bosnia-Herzegovina’s criminal procedure from an inquisitorial to an
accusatorial model consists of legal judgments from Bosnia-Herzegovina’s courts. Given this, a
key concern here is the operationalization of the use of pre-2003 criminal procedure versus post-
2003 procedure through the structure of judicial opinions. In other words, what measurement
indicators can be constructed that would allow for the determination of the procedural model
used based on only written judgments?
59
As discussed in the previous section above, although
both Robert A. Kagan and Mirjan R. Damaška attempt to escape the problematic inquisitorial /
accusatorial divide
60
through moving towards a more rigorous and specific definition of
concepts, the two terms are so engrained in their use by specialist scholars that to abandon them
completely risks sowing even more confusion.
61
Instead, a wiser course of action is to keep the
terms, but to use Kagan and Damaška’s scholarship to move forward to a more systematic
conceptualization of the inquisitorial and accusatorial models --- one that can then lead to the
development of measurement indicators. From Kagan’s scholarship, one gains the use of a
typology that embraces the complexity inherent in legal adjudication and in doing so adds
specificity to the categorizations,
62
whilst from Damaška’s scholarship, one gains a rigorous
identification of the key identifying characteristics of the inquisitorial and accusatorial models.

In the former Yugoslavia or SFRJ, a praktikum was a collection of reprinted materials
(collected from real cases) that was designed to offer models for investigative and trial judges to
base their work upon. For the investigative judge (istražni sudija), the praktikum provided real
life examples of how to collect and write up witness testimony and investigation reports that
would then be proofed into the judicial record through inclusion into the all-encompassing case
file or dossier (zapisnik / službena beleška). For the trial judge (sudija), the praktikum provided
real life examples of how to compose written judgments that would incorporate the evidence
contained in the dossier and ready the case for hierarchical review at the next level. In the period
of time just prior to the collapse of the SFRJ, the two best known and widely used praktikums in

59
The idea that differing institutional arrangements can produce variations in the written structure of legal
instruments is not a new one. For example, Patrick S. Atiyah and Robert S. Summers have studied how the
differences in political institutions and the law-making process have led to British statutes that are far more formal
and detailed than their more general American counterparts. See PATRICK S. ATIYAH & ROBERT S. SUMMERS, FORM
AND SUBSTANCE IN ANGLO-AMERICAN LAW: A COMPARATIVE STUDY OF LEGAL REASONING, LEGAL THEORY, AND
LEGAL INSTITUTIONS 298-321 (Clarendon Press 1987).

60
See supra note 15.

61
See supra note 16.

62
As has been discussed, Kagan is able to achieve this in his typology through bifurcating it between: (1) the
organization of the decision-making authority (whether it is organized hierarchically or more along the lines of
participatory input); and (2) decision-making style (whether it is formal or informal).

121
the area of criminal procedure were the one edited by Zagorka Simić-Jekić in 1980,
63
and the one
put together by the team of Đorđe Lazin and Stanko Bejatović in 1988
64
--- taken together these
two praktikums provide a wealth of examples of the inquisitorial model of criminal procedure as
practiced in the SFRJ, and later in Bosnia-Herzegovina prior to the legal changes introduced by
High Representative Paddy Ashdown in 2003.
65

The examples the praktikums provide of how witness testimony and investigation reports
were collected and proofed into the dossier highlight both Kagan’s observations of the general
hierarchical nature of the inquisitorial model; and Damaška’s insights into the central role of the
dossier in integrating all of the material gathered during the multi-stage proceedings that define
the inquisitorial model, and then incorporating them into a systematized narrative that can be
turned to for decision-making and review at any stage of the process. In the examples of witness
testimony provided, one can observe how such statements were collected and recorded in writing
for inclusion into the dossier, highlighting the inquisitorial model’s reliance on written (over
oral) records that can be easily incorporated into the dossier.
66
Clear in the examples provided is
also the hierarchical nature of the proceedings, with the witnesses prompted to provide a
chronological account of events under the auspicious of the investigative judge, with no input
whatsoever from either the prosecution or defense counsels.
67
When one turns to the example an
of an investigation report, one again observes the inquisitorial models multi-stage character, with
the material contained in the dossier acting as an all-encompassing source of information upon
which adjudication hinges upon.
68
Key here is the fact that the investigation is being run neither
by the prosecution nor defense, by rather by an ostensibly neutral state official, the investigative
judge, whose prime goal is to collect the facts rather than frame them in support of one party
over another. It is these undisputed “facts,” collected and proofed into the dossier that form one
of the backbones of the inquisitorial model.

The examples the praktikums provide of the structure of written judgments --- a structure
designed to incorporate the evidence contained in the dossier in order to ready the case for
review at the next level --- highlight both Kagan’s observations of how decision-making
authority in the inquisitorial model is hierarchical rather than participatory; and Damaška’s
insight into how the multi-stage dossier driven nature of the inquisitorial model feeds into a

63
See ZAGORKA SIMIĆ-JEKIĆ (ED.), PRAKTIKUM ZA KRIVIČNO PROCESNO PRAVO (Novinsko-izdavačka ustanova
Službeni list SFRJ OOUR knjige 1980).

64
See ĐORĐE LAZIN & STANKO BEJATOVIĆ (EDS.), PRAKTIKUM ZA KRIVIČNO PROCESNO PRAVO (Naučna knjiga
1988).

65
See Chapter 4 § II(C) for a discussion of the changes to the Bosnian legal system initiated by then High Representative
Paddy Ashdown in 2003.

66
SIMIĆ-JEKIĆ (ED.), supra note 63, at 111-114 (Examples of Witness Testimony) translated into English from the
original Serbo-Croatian and reprinted in Appendix V.

67
Id.

68
LAZIN & BEJATOVIĆ (EDS.), supra note 64, at 193-195 (Example of Investigation Report) translated into English
from the original Serbo-Croatian and reprinted in Appendix VI.

122
standard of decision-making labeled as “logical” --- a standard which looks to craft solutions that
are consistent to a set of wider general principles applicable across cases, and which trades
particularized justice (i.e. for the individual parties) for clarity and consistency. In one of the
examples of written judgment provided (of a murder conviction), one can observe how the
decision consistently refers to evidence collected at prior stages (and presumably proofed into
the dossier) in order to base its evaluations.
69
Indeed, though the judgment involves a seemingly
complex murder case, where a husband was convicted of fatally stabbing his estranged wife to
death, the written opinion is fairly short (i.e. only a few pages).
70
This brevity stems from
institutional factors, as the bulk of evidence the judgment references need not be proofed or
evaluated in the judgment itself --- as would be the case if said evidence was being collected by
the opposing parties and set in two competing frames --- here the evidence has instead
presumably already been proofed by the investigative judge through its collection and inclusion
in the all-encompassing dossier. When higher level legal principles are invoked, it is not case-
law but rather statute that is referenced and the goal is consistency and generalizability not
particularized justice.
71
The judgment connects facts and evidence to a clear and specific body of
law (statute) in order to create a solution that is consistent to a set of wider general principles
applicable across cases.
72
This “logical legal reasoning” (to coin Damaška) is a direct result of
the fact that control over the multi-stage proceedings so central in the inquisitorial model is in the
hands of an ostensibly neutral state official, the investigative judge, and it is therefore not in the
purview of the opposing parties to collect and frame competing sets of evidence. In the absence
of such competing sets of evidence particularized justice becomes impossible and the alternative,
general principles applicable across a wide sub-set of cases, much more probable given the
centrality of the dossier (collected by a single source) to the process. In another example of a
written judgment provided (of an acquittal in a case of negligent homicide), these same factors
again come to the fore --- evaluations based on evidence already collected at prior stages and
proofed into the dossier, a fairly short written opinion, and a reference to statute in a style of
legal reasoning that seeks to connect it to facts and evidence in order to create a solution that is
consistent to a set of wider general principles applicable across cases.
73

If the praktikums provide a wealth of examples pertaining to the inquisitorial model of
criminal procedure as practiced in the SFRJ, and later in Bosnia-Herzegovina prior to the legal
changes introduced in 2003, is there an equivalent set of documents that can provide similar
insight into the accusatorial model of criminal procedure in Bosnia-Herzegovina post-2003?
Legal “reform” was always a concern of the international judges sitting in the State-Court of

69
Id. at 222-226 (Example of Written Judgment) translated into English from the original Serbo-Croatian and
reprinted in Appendix IX.

70
See id.

71
Id.

72
Id.

73
Id. at 220-222 (Example of Written Judgment) translated into English from the original Serbo-Croatian and
reprinted in Appendix VIII.

123
Bosnia-Herzegovina
74
--- and indeed in the early years of the State-Court’s operation (c. 2006) a
number of these international judges began to informally put out examples and guides that
attempted to distill the basic elements of what they considered “quality” or “well written” legal
judgments.
75
The key State-Court international judges spearheading this program were, perhaps
not unsurprisingly, from the United States, and they envisioned the examples and guides they
constructed of being useful not only to their domestic Bosnian counterparts but also to their
international judge colleagues from continental or inquisitorial legal backgrounds.
76
For these
international judges sitting on the State-Court, products of the accusatorial model as practiced in
the United States, the prototypical structure of the legal judgments put out by their inquisitorial
background colleagues (both domestic Bosnian judges and international judges from states or
legal systems following a non-accusatorial model) were problematic in that they did not
adequately synthesize the relevant facts (of the particular case at issue) to the sometimes abstract
legal principles that applied.
77
The examples and guides these international judges put out
underlined their view, one no doubt colored by the accusatorial system they hailed from, on how
a “well written” legal judgment should be constructed.
78

The examples and guides on judgment writing put out by some of the American
international judges at the State-Court are invaluable to the current discussion because they
showcase the very unique requirements of the written judgment under the accusatorial model and
highlight both Kagan’s observations of how decision-making authority in the accusatorial model
is participatory rather than hierarchical; and Damaška’s insight into how the adversarial nature of
the accusatorial model (i.e. driven by opposing parties orally presenting their own collected
evidence at the “singular procedural episode” of the trial) engenders a standard of decision-
making labeled as “pragmatic” --- a standard which looks to craft solutions that are tailored to
the specific facts of the case at hand and trades clarity and consistency across cases for
particularized justice. The examples and guides, which will each be discussed in turn, fall under
three general categories of materials: (1) so called “indictment flowcharts” that demonstrated
how the facts and complaints alleged in a criminal indictment could be broken down and
simplified; (2) judgment outlines detailing how judgments should be generally organized; and (3)
sample examples of judgments showing how case-law could be incorporated into discussions of
laws and / or legal principles.

The indictment flowcharts were designed to highlight and break down the facts and
complaints alleged in a criminal indictment into bullet points that could be returned to for later

74
See Chapter 4 § III(A)(1) for a discussion of the State-Court of Bosnia-Herzegovina, including the circumstances that led
to its establishment and the temporary internationalization of its judicial component.

75
Interview with Patricia Whalen, International Judge, State-Court of Bosnia-Herzegovina, in Sarajevo, Bosnia-
Herzegovina (Jul. 22, 2011).

76
Id.

77
Id.; Interview with Phillip Weiner, International Judge, State-Court of Bosnia-Herzegovina, in Sarajevo, Bosnia-
Herzegovina (Jul. 24, 2011).

78
Id.

124
evaluation and connection (i.e. in the eventual judgment itself).
79
The necessity for a tool such as
the flowchart highlights the absence of the hierarchical control over a case in the accusatorial
model and the reliance instead on the parties themselves (i.e. the prosecution and defense
counsels) to collect competing sets of evidence that would be framed by each side at trial.
Compare such a state of affairs to the hierarchical control, described earlier, that one sees in the
inquisitorial model --- a hierarchical control manifested through the reliance on an ostensibly
neutral state official (i.e. the investigative judge) to collect one set of evidence and assemble it in
an all-encompassing case file or dossier. With the competing sets of evidence that is so central to
the accusatorial model comes a requirement, in the eventual judgment, to discuss and evaluate
said evidence --- the indictment flowchart is one tool for assisting in this process. This centrality
of the parties in the accusatorial model, and the structural variations in decision-making that this
engenders in comparison to more hierarchical (i.e. inquisitorial) models, can also be seen in the
final two categories of materials put out by the State-Court international judges: the judgment
outlines and sample judgment examples.

The judgment outlines
80
and sample judgment examples
81
were designed to, in turn,
systematically set up a sketch or skeleton of the actual written judgment prior to its drafting and
then provide a template as to how the actual judgment should be constructed. Both the outline
and the template example not only assisted in evaluating the competing sets of evidence
collected by the parties, but also could assist in the process of connecting facts to sometimes
abstract legal principles in order to create a solution tailor-made or “particularized” to the
specific events of the case at hand.
82
This “pragmatic legal reasoning” (to coin Damaška) is a
direct result of the accusatorial model’s generation of competing sets of evidence, collected and
orally presented by the opposing parties at the “singular procedural episode” of the trial. In the
midst of these competing frames of evidence, particularized justice becomes the only available
outcome as the alternative of general principles applicable across a wide sub-set of cases
becomes impossible. Indeed, in viewing one of the sample judgments, one can observe how the
decision weaves together the very particular set of facts before it to various, sometimes highly
abstract, legal principles stemming from (mainly) case-law.
83
This exercise in “pragmatic legal
reasoning” accounts for the sheer length of the example, especially when compared to its
inquisitorial counterparts (from the praktikums) discussed earlier.

C. Level 3: Indicators

79
See Indictment Flowchart (Draft Example), Provided to author by Patricia Whalen (International Judge, State-
Court of Bosnia-Herzegovina) reprinted in Appendix X.

80
See Judgment Outline (Draft Example), Provided to author by Patricia Whalen (International Judge, State-Court
of Bosnia-Herzegovina) reprinted in Appendix XI.

81
See Judgment Section Sample (Draft Example), Provided to author by Patricia Whalen (International Judge, State-
Court of Bosnia-Herzegovina) reprinted in Appendix XII.

82
Judgment Outline, supra note 80; Judgment Section Sample, supra note 81.

83
Judgment Section Sample, supra note 81.

125
Combining the systematic conceptualization of the inquisitorial and accusatorial models
offered by the scholarship of Robert A. Kagan and Mirjan R. Damaška, with actual examples of
inquisitorial and accusatorial practice in the former Yugoslavia / Bosnia-Herzegovina, allows for
the development of measurement indicators for operationalizing the use of pre-2003 inquisitorial
criminal procedure versus post-2003 accusatorial criminal procedure (in Bosnia-Herzegovina)
through the structure of judicial opinions. These indicators are represented in figure 5.03 below:

Figure 5.03: Measuring Models of Legal Adjudication through Judgment Structures

MODEL: INQUISITORIAL ACCUSATORIAL
CHARACTERISTICS: Hierarchical decision-making authority /
formal decision-making style
Participatory decision-making authority /
formal decision-making style
STRUCTURE OF JUDGMENTS
OPERATIONALIZED THROUGH:
• Single case file or dossier of
evidence proofed into the
judgment or record
• Judgment contains variant of
“logical legal reasoning,”
referencing mainly statute /
treaty (goal: connect the facts
to the specific relevant body of
law in order to create a
solution that is consistent to a
set of wider general principles
applicable across cases)

• Duplicate evidence (collected
by each side, the prosecution
and defense) discussed and
evaluated within the judgment
or record
• Judgment contains variant of
“pragmatic legal reasoning,”
referencing mainly case-law
(goal: connect the facts to
sometimes abstract legal
principles in order to create a
solution tailor-made or
“particularized” to the specific
events of the case at hand)

In regards to the inquisitorial model, Kagan’s scholarship offers insight into how decision-
making authority in the model is hierarchical rather than participatory which then channels into
Damaška’s observations into how the multi-stage dossier driven nature of the model feeds into a
standard of decision-making he labels as “logical legal reasoning.” As already discussed in
detail,
84
this standard looks to craft solutions that are consistent to a set of wider general
principles applicable across cases, and which trades particularized justice (i.e. for the individual
parties) for clarity and consistency. When put side by side with the examples of inquisitorial
practice in the former Yugoslavia / Bosnia-Herzegovina provided by the praktikums,
measurement indicators emerge which focus on (a) whether the judgment(s) in question contain
some reference or indication to a single source of evidence that has then been proofed into the
judgment or record; and (b) whether the judgment(s) in question contains a variant of “logical
legal reasoning” referencing mainly statute / treaty in a style of legal analysis that seeks to
connect concrete legal principles to facts and evidence in order to create a solution that is
consistent to a set of wider general principles applicable across cases. In regards to the
accusatorial model, Kagan’s scholarship offers insight into how decision-making authority in the
model is participatory rather than hierarchical which then channels into Damaška’s observations
into how the adversarial nature of the model engenders a standard of decision-making he labels
as “pragmatic legal reasoning.” As discussed earlier in detail,
85
this standard looks to craft
solutions that are tailored to the specific facts of the case at hand and trades clarity and

84
See supra § I(A) for an in-depth discussion of “logical legal reasoning.”

85
See supra § I(A) for an in-depth discussion of “pragmatic legal reasoning.”

126
consistency across cases for particularized justice. When put side by side with the examples of
accusatorial practice in Bosnia-Herzegovina provided by the guides put out by some of the
international judges at the State-Court of Bosnia-Herzegovina (c. 2006), measurement indicators
emerge which focus on (a) whether the judgment(s) in question discuss and evaluate duplicate
evidence collected by each side (i.e. prosecution and defense) in the dispute; and (b) whether the
judgment(s) in question contains a variant of “pragmatic legal reasoning” referencing mainly
case-law in a style of legal analysis that seeks to connect abstract legal principles to facts and
evidence in order to create a solution that is tailor-made or “particularized” to the specific events
at hand.

D. Level 4: Scores for Cases

A key assumption in the measurement indicators provided in figure 5.03 above ---
especially in regards to those given for the inquisitorial model --- is that, even though the model
was formally disbanded in Bosnia-Herzegovina in 2003 with the legal changes introduced by
High Representative Paddy Ashdown,
86
it was still possibly in operation in the country well
beyond that date. In other words, the assumption is that the inquisitorial model in Bosnia-
Herzegovina was (and perhaps still is) finding some way to operate past 2003 even though its
formal structures had been dismantled.
87

The assumption that the inquisitorial model is still somehow in operation in Bosnia-
Herzegovina post-2003 is not at all farfetched, when one observes that as late as 2009, and
continuing well beyond to the present, transnational actors in Bosnia-Herzegovina have
continued to voice their concern over the lack of “quality” or “well written” legal judgments
authored by domestic Bosnian judges.
88
For example, in a widely distributed and influential
2009 report, the Organization for Security and Cooperation in Europe (OSCE),
89
which was

86
See Chapter 4 § II(C) for a discussion of the changes to the Bosnian legal system initiated in 2003 with the promulgation
of the new Criminal Procedure Codes (Zakon o krivičnom postupku) on the central government and entity levels. As
discussed in detail in Chapter 4, the new Codes eliminated the position of the non-partisan investigative judge and instead
shifted control over the judicial process to the prosecution and defense. New trial procedures limiting the role of the presiding
judge in the questioning of witnesses and introducing concepts such as the authentication of evidence at trial and the cross
examination of witnesses were also instituted. Taken together these changes had the effect of attempting to initiate the
transformation of the formerly inquisitorial legal model in place in Bosnia-Herzegovina into an accusatorial one.

87
See id.

88
See e.g. DAVID TOLBERT & ALEKSANDAR KONTIĆ, INTERNATIONAL CRIMINAL LAW SERVICES (ICLS), FINAL
REPORT OF THE INTERNATIONAL CRIMINAL LAW SERVICES EXPERTS ON THE SUSTAINABLE TRANSITION OF THE
REGISTRY AND INTERNATIONAL DONOR SUPPORT TO THE COURT OF BOSNIA AND HERZEGOVINA AND THE
PROSECUTOR’S OFFICE OF BOSNIA AND HERZEGOVINA IN 2009 para. 100 (2008) (“Another aspect of the work of the
judges is the quality of the judgements produced. In this regard, the form of the judgements follows a strict format
that is in accordance with national practices. These judgements are difficult to read for outsiders and often discuss
the applicable legal principles in a manner that is difficult for those outside the system to understand … While the
judgements may be in compliance with local practice, the international community is losing out on many of the legal
developments and other benefits that could flow from well written judgements.”).

89
Beginning its life as the Conference on Security and Cooperation in Europe (CSCE) in 1973, the later renamed
Organization for Security and Cooperation in Europe (OSCE) is one of the principle inter-governmental
organizations in the world. Focusing its activities on arms control, the protection of human rights, freedom of the
127
charged in the Dayton Agreement
90
with assisting Bosnia-Herzegovina in democratic
governance and legal reform,
91
had criticized the “legal reasoning” of Bosnian criminal
judgments as lacking clarity and logical consistency.
92
The report had highlighted the key
problem as being that the majority of judgments dedicated too much detail in describing the
evidence the court used to base their judgment on, whilst devoting very little space to “legal
reasoning” which sought to connect “the relevant facts to the relevant law in order to establish
the veracity of the charges.”
93
Were domestic Bosnian judges so inept that they, on a system
wide scale, had no idea on how to draft a legal judgment --- or, as was discussed earlier,
94
is
there perhaps another explanation? Could it possibly be that the authors of the OSCE report, not
to mention the international judges on the State-Court discussed earlier,
95
were mistakenly
assessing the quality and standards of the written judgments they were encountering based on a
problematic set of expectations and values --- expectations and values that flowed from an
accusatorial template where “pragmatic legal reasoning” --- a standard which emerged directly
from the need to evaluate the model’s generation of competing sets of evidence, collected and
orally presented by the opposing parties at the “singular procedural episode” of the trial, was
mistakenly being viewed as the only standard for a “quality” or “well written” legal judgment?
Were what these critics identified as badly written legal judgments, lacking in their view both
clarity and logical consistency, in fact judgments that flowed from an inquisitorial criminal
procedure that had still somehow found a way to operate in Bosnia-Herzegovina past 2003 even
though its formal structures had been dismantled? Could it be that these judgments that were
being critiqued for not connecting “relevant facts to the relevant law in order to establish the
veracity of the charges”
96
were actually employing “logical legal reasoning” --- a standard which
emerged directly from the inquisitorial model’s multi-stage dossier driven nature? These

press, the promotion of democratic governance, and judicial reform; the OSCE has dozens of diplomatically
accredited missions in Eurasia, with a mixture of seconded and directly hired staff.

90
See Chapter 4 § I for a discussion of the Dayton Agreement, the international treaty that brought an end to the violent
conflict that engulfed Bosnia-Herzegovina when it broke away from the SFRJ in the early 1990s.

91
See The General Framework Agreement for Peace in Bosnia and Herzegovina, 50th Sess., Agenda Item 28, U.N.
Doc. S/1995/999 (Dec. 14, 1995), Annex 1B (Agreement on Regional Stabilization), Annex 3 (Agreement on
Elections); Annex 6 (Agreement on Human Rights).

92
See ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE (OSCE), REASONING IN WAR CRIMES
JUDGEMENTS IN BOSNIA AND HERZEGOVINA: CHALLENGES AND GOOD PRACTICES 14-16 (2009).

93
Id. at 14.

94
See supra § I(B).

95
See id.

96
REASONING IN WAR CRIMES JUDGEMENTS IN BOSNIA AND HERZEGOVINA: CHALLENGES AND GOOD PRACTICES,
supra note 92, at 14.

128
questions form the heart of the hypothesis this study proposes to test
97
and the data that it
proposes to utilize in order to engage in said test.
98

II. Testing the Bosnian Case: Legal Recursivity and Institutional Design

In order to test for legal recursivity and control for institutional design on the ability of
transnational actors to change the procedure through which criminal cases in Bosnia-
Herzegovina are adjudicated (the dependent variable), the total adjudicated first instance
99

judgments of the Bosnian State (N = 49), district (N = 21), and cantonal (N = 38) courts from
2004 through to the end of 2010 were collected and coded according to the doctrinal issue area
of international criminal law they dealt with (i.e. crimes against humanity, genocide, and war
crimes).
100
The longitudinal analysis was set from 2004 to 2010 to account for the introduction
of the new changes to the Bosnian criminal procedure codes in 2003;
101
the growth of the
internationalization of the State-Court’s judicial arm through the non-Bosnian international
judges that served on it from 2005 through to 2012,
102
and the new post-October 2004 dual-track
process for prosecuting international crimes in Bosnia.
103

The presence (or lack thereof) of recursive cycles in the three main doctrinal areas of
international criminal law (stage 1 of the framework: the independent variable) was determined
through the analysis of international jurisprudence, scholarly commentary, and documentation
and reports from international organizations and domestic governments that was conducted in
Chapter 3. Recall that this analysis was conducted with an eye towards identifying whether the
key mechanisms that Terence Halliday and Bruce Carruthers have identified as driving the

97
I.e. whether legal recursivity and / or institutional design had any bearing on the attempts of transnational actors in
Bosnia-Herzegovina to shift the country’s criminal procedure from an inquisitorial to accusatorial model.

98
I.e. legal judgments from Bosnia-Herzegovina’s courts.

99
Only those first-instance judgments where the parties had subsequently exhausted all legal remedies (i.e. appeals)
were included.

100
Judgments which dealt with more than one doctrinal issue area of international criminal law were coded twice.

101
See Chapter 4 § II(C) for a discussion of the changes to the Bosnian legal system initiated by then High Representative
Paddy Ashdown in 2003. These changes, which were anchored by the promulgation of the new Criminal Procedure Codes on
the central government and entity levels, eliminated the position of the non-partisan investigative judge and instead shifted
control over the judicial process to the prosecution and defense. New trial procedures limiting the role of the presiding judge
in the questioning of witnesses and introducing concepts such as the authentication of evidence at trial and the cross
examination of witnesses were also instituted. Taken together these changes had the effect of attempting to initiate the
transformation of the formerly inquisitorial legal model in place in Bosnia-Herzegovina into an accusatorial one.

102
See Chapter 4 § III(A)(1) for a discussion of the State-Court of Bosnia-Herzegovina, including the circumstances that led
to its establishment and the temporary internationalization of its judicial component.

103
See Chapter 4 § III(C) for a discussion of the ICTY’s “Completion Strategy” which sought to enable the Tribunal to
transfer cases out of its own docket to national level courts in the post-Yugoslav successor states, and how this process
manifested itself (in part) in Bosnia-Herzegovina through the Tribunal putting a stop to its review of domestic Bosnian
indictments related to alleged international criminal offense (in October 2004), and instead placing the domestic indictment
and prosecution of such cases fully in the hands of Bosnian institutions.

129
process of legal recursivity
104
were present or not. The ultimate conclusion reached at the close
of Chapter 3 was that whilst crimes against humanity are still the subject of recursive cycles of
norm-making, genocide and war crimes no longer are, and they have instead reached the status
of accepted, and therefore authoritative, norms.

Institutional design (stage 2 of the framework: the mediating variable) was controlled for
through the use of three very different judicial institutions in testing the hypothesis at the center
of this study --- these three judicial institutions being the Bosnian State, district, and cantonal
courts. Recall from Chapter 4 that the State-Court is the only real national institution in a highly
decentralized country divided into two “entities” or constituent units --- the Republic of Srpska
and Federation of Bosnia-Herzegovina.
105
The State-Court is unique as both a “hybrid” judicial
institution employing both domestic and non-Bosnian international judges (until 2012), and as an
institution under central governmental control in a country where most governance is conducted
on the entity level. Local Bosnian district courts in the Republic of Srpska and cantonal courts in
the Federation share neither the hybrid structure of the State-Court nor are under direct central
Bosnian government control --- being run instead on an entity level. All three institutions are
empowered to hear cases originating from international criminal offenses committed in the
territory of the former Yugoslavia during the conflict of the early 1990s, and all three courts
apply (in theory) the same body of law (in regards to criminal procedure). Indeed, recall from
Chapter 4 that the post-2004 the prosecution of international crimes in Bosnia-Herzegovina was
based on a dual-track model where all suspected international criminal offenses were under the
exclusive jurisdiction of the State-Court (which had to approve their indictments). It would be
only after the investigation and indictment stage that the majority of these cases would be
funneled back to the entity level district and cantonal courts, with the few cases deemed most
sensitive remaining with the State-Court.
106

The ability of transnational actors to change the procedure through which criminal cases
in Bosnia-Herzegovina were adjudicated (stage 3 of the framework: the dependent variable), was
operationalized through a set of specifically created measurement indicators designed to
operationalize the use of pre-2003 inquisitorial criminal procedure versus post-2003 accusatorial
criminal procedure (in Bosnia-Herzegovina) through the structure of judicial opinions. These
indicators were developed and presented earlier in this chapter
107
and are summarized in figure

104
As introduced earlier in Chapter 2, and in more detail in Chapter 3, these four mechanisms are: (1) the
indeterminacy of law (the ambiguities inherent in statutes, regulations, and court opinions that leads to the possible
unintended consequences of their application, setting off repeated rounds of redrafting and reapplication); (2)
contradictions (the phenomenon that emerges ideologically when clashing visions amongst actors leads to imperfect
legal settlements, or institutionally when legal implementation is divided out between different institutions); (3)
diagnostic struggles (the struggle, between various actors, of diagnosing perceived shortcomings in legal norms and
identifying corrective prescriptions); and (4) actor mismatch. See Terence C. Halliday & Bruce G. Carruthers, The
Recursivity of Law: Global Norm Making and National Law Making in the Globalization of Corporate Insolvency
Regimes, 112 AM. J. SOC. 1135, 1149-1151 (2007); Terence C. Halliday, Recursivity of Global Normmaking: A
Sociolegal Agenda, 5 ANNU. REV. LAW & SOC. SCI. 16.1, 16.15-16.19 (2009).

105
See Chapter 4 § III(A)(1).

106
See Chapter 4 § III(C).

107
See supra § I.
130
5.03 above. To recap, inquisitorial criminal procedure was operationalized through indicators
which focused on (a) whether the judgment(s) in question contained some reference or indication
to a single source of evidence that had then been proofed into the judgment or record; and (b)
whether the judgment(s) in question contained a variant of legal reasoning that referenced mainly
statute / treaty in a style of legal analysis that sought to connect concrete legal principles to facts
and evidence in order to create a solution that was consistent to a set of wider general principles
applicable across cases. Accusatorial criminal procedure was operationalized through indicators
which focused on (a) whether the judgment(s) in question discussed and evaluated duplicate
evidence collected by each side (i.e. prosecution and defense) in the dispute; and (b) whether the
judgment(s) in question contained a variant of legal reasoning that referenced mainly case-law in
a style of legal analysis that sought to connect abstract legal principles to facts and evidence in
order to create a solution that was tailor-made or “particularized” to the specific events at hand.

A. Testing for Legal Recursivity (Stage 1)

In testing for legal recursivity, the following results (listed in figure 5.04 below) were
generated by an analysis of the total adjudicated first instance judgments of the Bosnian State-
Court (N = 49) from 2004 to 2010:

Figure 5.04: Testing the Bosnian Case (Judgments of the State-Court of Bosnia-Herzegovina
by Offense, 2004-2010)

OFFENSE PRESENCE OF
RECURSIVE
CYCLES?
MODEL OF
ADJUDICATION
YEAR TOTAL
2004 2005 2006 2007 2008 2009 2010
CRIMES
AGAINST
HUMANITY

YES INQUISITORIAL 0/0 =
0%

0/0 =
0%

6/7 =
85.7
%

2/8 =
25%

3/5 =
60%

0/5 =
0%

0/1 =
0%

11/26 =
42.3%

ACCUSATORIAL 0/0 =
0%

0/0 =
0%

1/7 =
14.3
%

6/8 =
75%

2/5 =
40%

5/5 =
100
%

1/1 =
100
%

15/26 =
57.7%
GENOCIDE

NO INQUISITORIAL 0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/3 =
0%

0/1 =
0%

0/0 =
0%

0/4 = 0%

ACCUSATORIAL 0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

3/3 =
100
%

1/1 =
100
%

0/0 =
0%

4/4 =
100%

WAR
CRIMES
NO INQUISITORIAL 0/0 =
0%

1/1 =
100
%

1/1 =
100
%

0/4 =
0%

1/8 =
12.5
%

0/5 =
0%

0/0 =
0%

3/19 =
15.8%

ACCUSATORIAL 0/0 =
0%

0/1 =
0%

0/1 =
0%

4/4 =
100
%

7/8 =
87.5
%

5/5 =
100
%

0/0 =
0%

16/19 =
84.2%

* Please note that a complete coded list of the State-Court judgments used (including case name and citation, panel
composition, specific offense charged, and basic facts) is contained in Appendix XIII.

131
The first column lists each of the three main doctrines of international criminal law (crimes
against humanity, genocide, and war crimes). The 49 completed first instance judgments of the
State-Court were coded (c. 2004-2010) based on which of these three doctrines the accused
defendant(s) were charged under. The second column lists whether any of these doctrines was
the subject of recursive cycles as established in chapter 3. The third column indicates the model
of adjudication that was utilized --- inquisitorial or accusatorial. The fourth column breaks this
down by year (i.e. longitudinal analysis running from 2004-2010), with each year given the
number of cases that were adjudicated according to either model, inquisitorial or accusatorial,
and the percentage this represented for the year (out of the total number of cases). The fifth and
final column indicates the model of adjudication utilized for the entire 2004-2010 period (i.e.
without breaking it down year by year).

Looking at the data, several intriguing points quickly emerge. Looking just at the results
emerging from the State-Court judgments (figure 5.04), it would appear that legal recursivity had
next to no effect on the model of legal adjudication used (i.e. inquisitorial or accusatorial).
Judgments arising out of offenses centered on crimes against humanity, the one doctrinal issue
area of international criminal law subject to recursive cycles of norm-making,
108
were not
seemingly more or less likely to be adjudicated through an accusatorial procedural model.
Instead what the longitudinal analysis makes clear is that, around 2007, a general trend emerged
in the State-Court, across all offenses, towards an accusatorial model. A look through Appendix
XIII, which contains a complete coded list of all of the 49 State-Court judgments used (including
case name and citation, panel composition, specific offense charged, basic facts, and the model
of adjudication used), reveals that up until 2006 the trend was strongly in the other direction ---
towards an inquisitorial model (8/9 total cases adjudicated up until that point --- across all
offenses, whether subject to recursive cycles or not --- were done under an inquisitorial model).
Starting in 2007, however, a strong trend begins in the direction of the accusatorial model (across
all offenses) that continues on through 2010 (as listed in detail in Appendix XIII, only 6 of the
remaining total 40 cases adjudicated from 2007-2010 were done following an inquisitorial
model). Figure 5.05 below shows this trend in stark terms, breaking down (by percentage) the
number of State-Court judgments that were adjudicated based on each model for the 2010-2010
period across all offenses.

108
See Chapter 3 § II(A).

132
Figure 5.05: Testing the Bosnian Case (Judgments of the State-Court of Bosnia-Herzegovina
in Total, 2004-2010)

What explains the dramatic shift in the State-Court in 2007? Recall from Chapter 1 that,
despite the many disadvantages that observational studies utilizing a quasi-experimental design
face, they do also provide an exceptional source of inferential leverage in the form of what David
Collier, Henry E. Brady, and Jason Seawright have labeled “causal process observations” or
CPOs.
109
CPOs are observations which consist of “data that provide information about context or
mechanism,” which can provide exceptional insight to the causal chains driving relationships
under study.
110
CPOs come to the fore here through an ability to look deeper at the cases under
study (i.e. due to the small sample size), in an effort to attempt to gain insight into the causal
chains in possible operation. In the present context, two important observations come into play,
the first being the key issue of the examples and guides on judgment writing put out by some of
the American international judges at the State-Court in 2006, and the second being the
importance of the composition of the panels adjudicating the cases.

Recall from the discussion earlier in this chapter that the examples and guides put out by
some of the American judges on the State-Court in 2006 were designed in order to distill the
basic elements of what these judges, trained in the accusatorial system, considered “quality” or
“well written” legal judgments.
111
These examples and guides were put out to act as models not
only for the domestic Bosnian judges on the State-Court, but also for the international judges

109
See Chapter 1 § I(B). See also Collier, Brady, & Seawright, supra note 3, at 252.

110
Id. at 252-255.

111
See supra § I(B).

0
10
20
30
40
50
60
70
80
90
100
2004 2005 2006 2007 2008 2009 2010
Inquisitorial Adjudication (by
% total per year)
Accusatorial Adjudication (by
% total per year)
133
from inquisitorial legal backgrounds. Recall that the models attempted to demonstrate how,
following an accusatorial template, relevant facts in a written judgment could be adequately
synthesized to the sometimes abstract legal principles that applied.
112
It would seem that the
examples and guides had an effect post-2006, as the structure (i.e. to a written judgment) that
they model and the style of “pragmatic legal reasoning”
113
they emphasize can clearly be seen to
have taken hold in the State-Court in the years following 2006.

The second important observation that comes into play here is the importance of panel
composition. Recall from Chapter 4 that in the State-Court, on both the first instance (trial) and
second instance (appellate) levels, judges sit in panels of three.
114
In going through Appendix
XIII and observing the minority of judgments from 2007 onwards that applied the inquisitorial
model (i.e. when the trend was clearly moving to a more accusatorial model), a curious pattern
emerges: out of the grand total of 6 (out of 40) cases that followed an inquisitorial model post
2007, the one common denominator in all six panels was that not one had an international judge
with prior international legal experience. As highlighted in Appendix XIII, all of the panels were
composed (in keeping with the early practice in the State-Court) of a ratio of two international
judges to one national judge,
115
with several containing international judges from accusatorial
systems, and others containing international judges from inquisitorial systems --- the one
common denominator, however, was that not a single of these panels contained an international
judge with prior international legal experience. Why would something like this make a difference
in this situation? One possible explanation centers on the fact that, over the years, the procedural
model that has emerged in the main international criminal tribunals (i.e. such as the ICTY, ICTR,
and ICC) has primarily been an accusatorial one.
116
International judges on the State-Court with

112
Recall from earlier in this chapter that these examples and guides on judgment writing fell under three general
categories of materials: (1) so called “indictment flowcharts” that demonstrated how the facts and complaints
alleged in a criminal indictment could be broken down and simplified; (2) judgment outlines detailing how
judgments should be generally organized; and (3) sample examples of judgments showing how case-law could be
incorporated into discussions of laws and / or legal principles. See supra § I(B).

113
As discussed earlier in detail, this standard of legal reasoning, inherent to the accusatorial model, looks to craft
solutions that are tailored to the specific facts of the case at hand and trades clarity and consistency across cases for
particularized justice. See supra § I(A).

114
See Chapter 4 § III(A)(1). See also Zakon o sudu Bosne i Hercegovine [Law on the Court of Bosnia-Herzegovina],
Službeni glasnik Bosne i Hercegovine [Official Gazette of Bosnia-Herzegovina], No. 29/00, 16/02, 24/02, 3/03,
37/03, 42/03, 4/04, 9/04, 35/04, 61/04, 32/07 & 49/09, art. 13(4); Zakon o krivičnom postupku Bosne i Hercegovine
[Criminal Procedure Code of Bosnia-Herzegovina], Službeni glasnik Bosne i Hercegovine [Official Gazette of
Bosnia-Herzegovina], No. 3/03, art. 24.

115
Recall that in the early years of the State-Courts operation (2005-2008) the practice was to have ratio of two
international judges to one national judge on the panels, with the gradual shift to one international judge to two
national judges (2009-2011), and eventually all national judge panels (2012) as the international judges were phased
out. See Chapter 4 § III(A)(1).

116
See e.g. VIRGINIA MORRIS & MICHAEL P. SCHARF, AN INSIDER’S GUIDE TO THE INTERNATIONAL CRIMINAL
TRIBUNAL FOR THE FORMER YUGOSLAVIA, VOL. I 177 (Transnational Publishers 1995); SALVATORE ZAPPALÀ,
HUMAN RIGHTS IN INTERNATIONAL CRIMINAL PROCEEDINGS 22-24 (Oxford University Press 2003); ROBERT
CRYER, HÅKAN FRIMAN, DARRYL ROBINSON, & ELIZABETH WILMSHURST, AN INTRODUCTION TO INTERNATIONAL
CRIMINAL LAW AND PROCEDURE 427-429 (Cambridge University Press 2007).

134
prior experience in these international fora, who had previously been involved in adjudicating
complex international criminal offenses utilizing an accusatorial template, were possibly better
suited to bring this model to bear on the State-Court (whatever their prior national legal
background --- inquisitorial or accusatorial) than international judges with zero international
legal experience.
117
Interestingly, this strong trend towards an accusatorial model in the State-
Court (c. 2007) coincides with a clear emphasis on prior international legal experience in the
recruitment (c. 2007-2008) of the final six international judges clearly shown in figure 4.04 ---
all of whom had extensive international legal experience prior to joining State-Court. Compare
this to the clear lack of prior international experience of the majority of the international judges
appointed to the State-Court in the preceding period (c. 2005-2007) also revealed in figure 4.04.

To conclude, the data from the State-Court indicates that legal recursivity had very little
effect on the model of legal adjudication used. Instead, institutional factors, such as the examples
and guides on judgment writing put out by some of the American judges on the State-Court in
2006, and the shift in emphasis (in international judge recruitment) to prior international legal
experience, seem to have played an outsized role in changing the procedural model through
which cases were adjudicated. Given these findings, the importance of controlling for
institutional design (the mediating variable) takes on special importance.

B. Testing for Institutional Design (Stage 2)

Moving from testing for legal recursivity in the State-Court and instead shifting towards
controlling for institutional design --- an especially key concern now given the seeming
importance of the mediating institutional variable from the findings above --- the following
results (listed in figure 5.06 below) were generated by an analysis of the total adjudicated first
instance judgments of Bosnian district (N = 21) and cantonal (N = 38) courts from 2004 to 2010:

117
See e.g. TOLBERT & KONTIĆ, supra note 88, at para. 98 (“The other primary reason put forward for the use of
international judges [i.e. on the State-Court] is that they bring relevant experience that can be very useful to their
national colleagues, which can be shared to help develop and build the skills of national judges and staff, often
referred to as ‘capacity building’. The record on this front is mixed and has depended largely on the quality and
commitment of the international judges. Those international judges who have experience at the ICTY or the ECHR
have been able to impart important knowledge of the law and principles to their national colleagues.”).
135
Figure 5.06: Testing the Bosnian Case (Judgments of the Bosnian District and Cantonal
Courts by Offense, 2004-2010)

OFFENSE PRESENCE
OF
RECURSIVE
CYCLES?
MODEL OF
ADJUDICATION
YEAR TOTAL
2004 2005 2006 2007 2008 2009 2010
CRIMES
AGAINST
HUMANITY

YES INQUISITORIAL 0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 = 0%
ACCUSATORIAL 0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 = 0%
GENOCIDE

NO INQUISITORIAL 0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 = 0%
ACCUSATORIAL 0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 =
0%

0/0 = 0%
WAR
CRIMES
NO INQUISITORIAL 6/6 =
100%

12/12
=
100%

14/14
=
100%

13/13
=
100%

5/5 =
100%

8/8 =
100%

1/1 =
100%

59/59 =
100%

ACCUSATORIAL 0/6 =
0%

0/12
= 0%

0/14
= 0%

0/13
= 0%

0/5 =
0%

0/8 =
0%

0/1 =
0%

0/59 =
0%

* Please note that a complete coded list of the district and cantonal judgments used (including case name and
citation, panel composition, specific offense charged, and basic facts) is contained in Appendix XIV.

The first column lists each of the three main doctrines of international criminal law (crimes
against humanity, genocide, and war crimes). The 59 completed first instance judgments of the
district (N = 21) and cantonal (N = 38) courts were coded (c. 2004-2010) based on which of
these three doctrines the accused defendant(s) were charged under. The second column lists
whether any of these doctrines was the subject of recursive cycles as established in chapter 3.
The third column indicates the model of adjudication that was utilized --- inquisitorial or
accusatorial. The fourth column breaks this down by year (i.e. longitudinal analysis running from
2004-2010), with each year given the number of cases that were adjudicated according to either
model, inquisitorial or accusatorial, and the percentage this represented for the year (out of the
total number of cases). The fifth and final column indicates the model of adjudication utilized for
the entire 2004-2010 period (i.e. without breaking it down year by year).

Looking at the data, two interesting observations emerge and again, just as in the
previous discussion above, the importance of CPOs to the process of inferential leverage here
cannot be underestimated. The first observation is that not a single judgment out of the 59 cases
adjudicated in the district and cantonal courts in the 2004-2010 period followed an accusatorial
model of adjudication. This would seem to indicate that the mediating variable, institutional
design, has some effect on the model of adjudication that was followed. The data here is in stark
contrast to the data from the State-Court for the same period --- recall that there, after an initial
period in the early years of the State-Court’s operation, where the trend was to an inquisitorial
model of adjudication, a general trend began to emerge, around 2007, (across all offenses)
136
towards an accusatorial model. In the district and cantonal courts the trend is in precisely the
opposite direction --- across all international offenses and all of the courts involved, whether in
the Republic of Srpska or the Federation, the trend is completely in an inquisitorial direction.
Despite the seeming dismantling of the formal structures of the inquisitorial model in 2003 with
the promulgation of the new Criminal Procedure Codes on the central government and entity
levels, the model had still somehow found a way to operate in Bosnia-Herzegovina post-2003,
even though its formal structures had been dismantled with the elimination of the position of the
non-partisan investigative judge, new procedures limiting the role of the presiding judge at trial,
and the introduction of the concepts of the authentication of evidence at trial and the cross
examination of witnesses.
118
How had this been achieved? What strikes out in textually
surveying the 59 cases adjudicated in the district and cantonal courts in the 2004-2010 period is
how all of them used the same technique to make up for the lack of the investigative judge and
his all-encompassing dossier. This technique consisted of incorporating the formally separate
(pre-2003) investigative reports that had been previously compiled by the investigative judge,
119

into the written judgment itself. As such, whereas pre-2003 written judgments had not contained
an extensive catalogue of collected evidence and witness testimony (such records instead being
contained in the investigative report compiled by the investigative judge and proofed into the all-
encompassing dossier), the new post-2003 written judgments did. In essence, then, the
elimination of the investigative judges had not resulted in an accusatorial model being put into
place in the district and cantonal courts, but rather had simply resulted in the trial judges taking
over the duties of the now non-existent investigative judges, all the while continuing to employ
the “logical legal reasoning” that is the hallmark of the inquisitorial model.

Observing the district and cantonal court data, a second interesting observation also
comes to the fore. Every single case was prosecuted exclusively under only one (out of the three
main) doctrinal areas of international criminal law --- war crimes. Not a single case on the
district and cantonal level for the 2004-2010 period was prosecuted as either a crime against
humanity or genocide. What does this second observation tell us about the strength (or lack
thereof) of the mediating institutional variable? More intriguingly, can this observation tell us
something about the independent variable of legal recursivity? The importance of these issues to
the process of inferential leverage here cannot be underestimated, but before an investigation can
be initiated, some background context must be provided.

Recall that in Chapter 4 a detailed discussion was presented that compared and contrasted
two very different domestic criminal codes that both incorporated international crimes into their
provisions --- the 1977 SFRJ Criminal Code and the 2003 Criminal Code of Bosnia-
Herzegovina.
120
Until the appearance of the 2003 Criminal Code of Bosnia-Herzegovina, it
would be the applicable provisions of the 1977 SFRJ Criminal Code, still in residual use even
after the breakup of Yugoslavia and the subsequent independence of Bosnia-Herzegovina, which

118
See Chapter 4 § II(C).

119
For an example of such an investigative report under the pre-2003 inquisitorial model as practiced in Bosnia-
Herzegovina, see LAZIN & BEJATOVIĆ (EDS.), supra note 64, at 193-195 (Example of Investigation Report)
translated into English from the original Serbo-Croatian and reprinted in Appendix VI.

120
See Chapter 4 § III(B).

137
would define the incorporation of international offenses into domestic Bosnian law. In figure
4.06, presented at the tail end of the discussion on the two codes, a simplified summary was
given of how each code addressed each of the three main doctrinal areas of international criminal
law. Figure 4.06 and the accompanying discussion clarified how of the three main doctrinal areas
of international criminal law --- crimes against humanity, genocide, and war crimes --- the 1977
SFRJ Criminal Code incorporated only genocide and war crimes into domestic law. The absence
of crimes against humanity from the Code being directly attributable to the fact that when the
Code was drafted, there was little international consensus on what constituted a crime against
humanity.
121
In contrast, the 2003 Criminal Code of Bosnia-Herzegovina incorporated all three
main doctrinal areas of international criminal law into domestic law. Why revisit this discussion
comparing the 1977 SFRJ Criminal Code (with its pointed exclusion of crimes against humanity
as a listed international offense) to the 2003 Criminal Code of Bosnia-Herzegovina? The
comparisons between the two codes are important because, even with the promulgation of the
Criminal Code of Bosnia-Herzegovina post-2003, district and cantonal courts continued, en
masse, using the 1977 SFRJ Criminal Code to try international criminal offenses. This is in
marked contrast to the situation in the State-Court, where the 2003 Criminal Code of Bosnia-
Herzegovina has been, with the exception of a single appellate judgment in 2009,
122
in exclusive
use. How and why could this occur and what is the importance to the present discussion?

Recall that post-2004 the prosecution of international crimes in Bosnia-Herzegovina was
based on a dual-track model that left the more sensitive cases within the jurisdiction of the State-
Court, but funneled the majority of cases back to the entity level district and cantonal courts.
123

As highlighted in figure 4.07, the State-Court had exclusive jurisdiction over the investigation
and indictment of international crimes, and it was only after these stages that the majority of
cases were then funneled back to the entity level district and cantonal courts for trial (with the
few cases deemed more sensitive remaining with the State-Court). Though the actual indictments
(handled by the State-Court) of these funneled cases were based on the 2003 Criminal Code of
Bosnia-Herzegovina, once they reached the district and cantonal courts the 1977 SFRJ Criminal
Code was instead applied --- in cases where the original indictment was for a crime against
humanity (an offense, recall, included the 2003 Code but not in the 1977 Code), the alleged
crime would be reclassified to one of the two offenses covered by the 1977 Code (usually war
crimes).
124
The legal justification for applying the defunct 1977 SFRJ Criminal Code over the

121
See Chapter 3 § II(A) for a discussion of how the end of the Second World Wars saw an initial burst of activity, followed
by a nearly forty year freeze, in the doctrinal development of crimes against humanity --- a freeze that only expired in the
1990s with the establishment of first the ICTY and ICTR, and later of the ICC. It was these more recent developments (i.e.
within the ICTY, ICTR, and ICC) that contributed to crimes against humanity’s status as a doctrine of international criminal
law, currently subject to the presence of recursive cycles of norm-making as numerous actors, on both the international and
national levels, struggled over competing claims and conflicts as to its meaning and application.

122
See Zijad Kurtović, Case No. X-KRŽ-06/299 (Second Instance Verdict), State-Court of Bosnia-Herzegovina
(Mar. 25, 2009).

123
See Chapter 4 § III(C).

124
This reclassification of an alleged crime after the issuance of an indictment could be accomplished through the
so-called ex oficio powers enjoyed by Bosnian courts. For a description of these powers and discussion of their use,
see ORGANIZATION FOR SECURITY AND COOPERATION IN EUROPE (OSCE), MOVING TOWARDS A HARMONIZED
138
2003 Criminal Code of Bosnia-Herzegovina by the district and cantonal courts was the
“principle of leniency,” recognized in both domestic Bosnian
125
and international law,
126
which
holds that if a law has been changed or amended after the commission of a crime, the law that is
more lenient to the accused should always be applied. The district and cantonal courts justified
themselves by claiming, correctly, that the sentencing ranges for international crimes were much
more lenient in the 1977 SFRJ Criminal Code than in the 2003 Criminal Code of Bosnia-
Herzegovina.
127
Though these claims regarding the leniency of the 1977 SFRJ Criminal Code
over the 2003 Criminal Code of Bosnia-Herzegovina in regards to sentencing ranges were
correct, their justification for applying the 1977 Code over the 2003 Code is problematic.
Legally, the district and cantonal courts could have easily still used the 2003 Criminal Code of
Bosnia-Herzegovina and still stayed true to the “principle of leniency.” All they would have had
to do was apply a lower range (at sentencing) in line with the lower range provided for in the
1977 SFRJ Criminal Code. Indeed, this is exactly the approach advocated by the European Court
of Human Rights (ECHR) when, in a recent highly discussed judgment, it held that the State-
Court’s use of the sentencing ranges of the 2003 Criminal Code of Bosnia-Herzegovina were
violative of the “principle of leniency” enshrined in Article 7 of the European Convention on
Human Rights.
128
The ECHR held that its ruling would not prevent the use of the 2003 Code in
the prosecution of international crimes in Bosnia-Herzegovina, but rather that it would only
prevent the use of the 2003 Code’s sentencing provisions.
129

Now that the background context has been provided over the debates regarding the use of
the 1977 SFRJ Criminal Code versus the 2003 Criminal Code of Bosnia-Herzegovina in the
district and cantonal courts, the conversation can return to identifying CPOs in assessing the
strength (or lack thereof) of the mediating institutional variable and, intriguingly, of the
independent variable (legal recursivity) as well. Recall that in the discussion of figure 5.06
above, assessing the data from the judgments of the district and cantonal courts in the 2004-2010
period, two observations emerged. The first was that not a single judgment of the 59 cases
adjudicated in the district and cantonal courts in the 2004-2010 period followed an accusatorial
model of adjudication. The second observation was that every single case was prosecuted
exclusively under only one (out of the three main) doctrinal areas of international criminal law --

APPLICATION OF THE LAW APPLICABLE IN WAR CRIMES CASES BEFORE COURTS IN BOSNIA AND HERZEGOVINA 11-12
(2008).

125
Krivični zakon Bosne i Hercegovine [Criminal Code of Bosnia-Herzegovina], Službeni glasnik Bosne i
Hercegovine [Official Gazette of Bosnia-Herzegovina], No. 3/03, art. 4(2).

126
See e.g. Scoppola v. Italy No.2, App. No. 10249/03, paras. 105-108 (Eur. Ct. H.R., Sept. 17, 2009).

127
Indeed, on average, the sentences handed down for international crimes by the State-Court (i.e. using the ranges
provided by the 2003 Criminal Code of Bosnia-Herzegovina) have been double the length of those handed down by
the district and cantonal courts (i.e. using the ranges provided by the 1977 SFRJ Criminal Code). See MOVING
TOWARDS A HARMONIZED APPLICATION OF THE LAW APPLICABLE IN WAR CRIMES CASES BEFORE COURTS IN
BOSNIA AND HERZEGOVINA, supra note 124, at 8.

128
Maktouf and Damjanović v. Bosnia-Herzegovina, App. No. 2312/08 & 34179/08, paras. 61-76 (Eur. Ct. H.R.,
Jul. 18, 2013).

129
Id. at para. 76.

139
- war crimes. Not a single case on the district and cantonal level for the 2004-2010 period was
prosecuted as either a crime against humanity or genocide. A look through Appendix XIV, which
contains a complete coded list of all of the 59 district and cantonal court judgments used
(including case name and citation, panel composition, specific offense charged, criminal code
used, basic facts, and the model of adjudication used), reveals a key reason for the seemingly
exclusive prosecution of these cases as war crimes --- all accused in all 59 cases were charged
under the 1977 SFRJ Criminal Code (which, recall, does not include the offense of crimes
against humanity) and not the 2003 Criminal Code of Bosnia-Herzegovina. Why this insistence
in the district and cantonal courts on the 1977 SFRJ Criminal Code over the 2003 Criminal Code
of Bosnia-Herzegovina, especially when the State-Court had no issues utilizing the 2003 Code,
and the “principle of leniency” arguments in favor of the 1977 Code clearly did not stand up to
scrutiny? As highlighted in Chapter 4 in the discussion comparing and contrasting the 1977 and
2003 Codes, aside from the 1977 Code’s failure to include crimes against humanity, the
treatments of the two Codes in their classifications of genocide and war crimes do not differ
dramatically from one another.
130
Why then the insistence by the district and cantonal courts on
the 1977 SFRJ Criminal Code? Interestingly, the original independent variable of legal
recursivity can possibly provide some insight into the behavior of the district and cantonal courts
here. Recall from Chapter 3 that crimes against humanity is the one doctrinal area of
international criminal law that is still subject to recursive cycles of norm-making as numerous
actors, on both the international and national levels, struggle over competing claims and conflicts
as to its meaning and application.
131
Indeed, as discussed earlier in Chapter 4,
132
the unsettled
nature of the offense, in contrast to its sister offenses of genocide and war crimes, helps explain
why it was not included in the 1977 SFRJ Criminal Code, whilst genocide and war crimes were.
A possible explanation of the reluctance of the district and cantonal courts to charge and try
alleged international offenses as crimes against humanity could stem from its unsettled nature as
opposed to genocide and war crimes, which, as the discussion and analysis in Chapter 3 made
clear, are standardized and clear in terms of their meaning and application.
133

Is there any evidence to indicate that the reluctance of the district and cantonal courts to
charge and try alleged international offenses as crimes against humanity possibly stems from its
unsettled nature? Indirectly, surveys of district / cantonal prosecutors and judges by well-
respected NGOs do reveal a clear lack of training and exposure to the most recent cutting edge
doctrinal developments in international criminal law.
134
Whereas with genocide and war crimes,

130
See Chapter 4 § III(B).

131
See Chapter 3 § II(A)

132
See Chapter 4 § III(B).

133
Of course this does not necessarily explain the dearth of genocide prosecutions in both the State-Court and
district / cantonal courts. Given genocide’s status (mainly stemming from the events of the Second World War) as
the “ultimate” crime however, its use has traditionally been restricted to only the most serious of acts (as opposed to
its sister international offenses of crimes against humanity and war crimes). See generally GIDEON BOAS, JAMES L.
BISCHOFF, & NATALIE L. REID, ELEMENTS OF CRIMES UNDER INTERNATIONAL LAW 138-154 (Cambridge University
Press 2008); ILIAS BANTEKAS, INTERNATIONAL CRIMINAL LAW 203-219 (Hart Publishing 2010).

134
See e.g. HUMAN RIGHTS WATCH, STILL WAITING: BRINGING JUSTICE FOR WAR CRIMES, CRIMES AGAINST
HUMANITY, AND GENOCIDE IN BOSNIA AND HERZEGOVINA’S CANTONAL AND DISTRICT COURTS 52-57 (2008).
140
(two offenses which, as Chapter 3 described, were fairly standardized as to their meaning and
application as late as the 1970s), this lack of training / exposure would perhaps not be as
problematic, one could certainly see how with crimes against humanity, it could prove a
significant issue. This lack of training / exposure and the possible implications that it presents
were / are well-known and internalized by district / cantonal prosecutors and judges, and have
been surmised to possibly play a role in their decision-making.
135
Compare this state of affairs in
the district / cantonal courts to that in the State-Court, where lack of training / exposure to the
most recent cutting edge doctrinal developments in international criminal law, on both the part of
domestic Bosnian judges and also international judges with little international legal experience,
was tempered through the institutional dynamic of the fact that they were joined on the Court by
an additional coterie of colleagues with extensive experience in the very international criminal
tribunals where the most dynamic innovations were developed.

To conclude, the data from the district and cantonal courts indicates that the mediating
institutional variable is especially significant in determining the model of legal adjudication. This
finding is in line with the classic historical institutionalist approaches which conceptualize
institutions as not classic independent or explanatory variables, but rather as mediators or filters
that shape the effects of other independent variables --- leading to the phenomena of similar
independent variables across cases producing different outcomes if the institution(s) in question
differ in substantial ways.
136
This being said, however, the specter of the district and cantonal
courts’ insistence on charging criminal offenses using the 1977 SFRJ Criminal Code, instead of
the 2003 Criminal Code of Bosnia-Herzegovina, presents observations that lead to a finding that
recursive cycles of norm-making may have an (admittedly heavily mediated) effect on the
behavior of actors (i.e. in this case the district and cantonal courts).

SUMMARY

This chapter has presented and tested the research design that was briefly introduced in
Chapter 1, and, in doing so, has sought to determine whether legal recursivity and / or
institutional design have any bearing on whether transnational actors have been able to change
the procedure through which criminal cases in Bosnia-Herzegovina are adjudicated. This test
was conducted through a collection of the judgments of the Bosnian State (N = 49), district (N =
21), and cantonal (N = 38) courts arising from international criminal offenses from the 2004-
2010 period. These judgments were then coded according to the doctrinal issue area of
international criminal law they dealt with (i.e. crimes against humanity, genocide, and war
crimes). The operationalization of legal recursivity conducted in Chapter 3, which checked for
the presence (or lack thereof) of recursive cycles in the three main doctrinal areas of international
criminal law (crimes against humanity, genocide, and war crimes) through an analysis of
international jurisprudence, scholarly commentary, and documentation and reports from

135
Interview with Božidarka Dodik, Prosecutor, State-Court of Bosnia-Herzegovina, in Sarajevo, Bosnia-
Herzegovina (Mar. 17, 2011).

136
See Chapter 2 § II(A)(2). See also Evan S. Lieberman, Causal Inference in Historical Institutional Analysis: A
Specification of Periodization Strategies, 34 COMP. POL. STUD. 1011, 1012-1015 (2001).

141
international organizations and domestic governments,
137
was joined in this chapter by a set of
specifically constructed measurement indicators designed to capture the unique characteristics of
inquisitorial versus accusatorial models of legal adjudication. A year to year longitudinal
analysis was utilized in order to combat threats to the internal validity of any findings, and the
judgments of the Bosnian district and cantonal courts served as non-equivalent controls (on the
Bosnian State-Court) for the mediating effect of institutional design.

Initial findings indicated that legal recursivity has a possible effect on outcomes, but that
this affect is heavily mediated by the institutional variable. In the State-Court, institutional
factors such as the examples and guides on judgment writing put out by some of the American
judges on the Court in 2006, and the shift in emphasis (in international judge recruitment) to
prior international legal experience, seem to have played an outsized role in changing the
procedural model through which cases were adjudicated. In the district and cantonal courts, the
absence of these institutional variables led to very different results and what was observed
instead was the continued resilience of the inquisitorial model, despite the dismantling of its
formal structures in 2003. Are such explanations beyond reproach? Not absolutely, for the world
this study inhabits is that of quasi-experimental design with non-randomized assignment of
causes to units and uncontrolled variables but, to echo Donald T. Campbell, the spirit of quasi-
experimental design takes the approach that the results from any such design are to be assumed
as valid if and until proven invalid by plausible rival explanations.
138
What the findings
presented in this chapter mean in context, and how they fit into the discussion and overview of
current state of the field of transnational relations surveyed in Chapter 2, will be the subject of
the next and final chapter of this study.

137
Recall that this analysis was conducted with an eye towards identifying whether the key mechanisms that have
been identified as driving the process of legal recursivity were present or not.

138
See Donald T. Campbell & H. Laurence Ross, The Connecticut Crackdown on Speeding: Time Series Data in
Quasi-Experimental Analysis, in THE QUANTITATIVE ANALYSIS OF SOCIAL PROBLEMS 123 (Edward R. Tufte ed.,
1970) (“A final note on the treatment of uncontrolled variables is in order. On the one extreme there is that attitude
often unwittingly inculcated in courses on experimental design, which looks askance at all efforts to make inferences
where some variables have been left uncontrolled or where randomization has not taken place. In contrast, the quasi-
experimental approach takes a radically different posture: any experiment is valid until proven invalid. The only
invalidation comes from plausible rival explanations of the specific outcome. Subsequent consideration may
uncover plausible rival hypotheses which have been overlooked, but such transitory validity is often the fate of
laboratory experiments as well.”).
142
Chapter
CONCLUSION
6

This chapter sets to conclude this study by placing findings presented in the previous
chapter in context and then expanding on how they fit into the research question presented in
Chapter 1, and the interdisciplinary framework for the study of transnational relations proposed
in Chapter 2. Chapter 1 presented the research question at the heart of this study: the ability of
epistemic transnational communities of international legal professionals, diplomats, and
international governmental agency officials to affect domestic policy change in the country of
Bosnia-Herzegovina (Bosna i Hercegovina). The specific domestic policy change studied was
the attempted transformation of Bosnia-Herzegovina’s criminal procedure from a “civil” or
inquisitorial model based of the post-revolutionary French criminal codes, to a more “common”
or accusatorial model based on the English tradition of de-centralized justice. This attempted
transformation was initiated in 2003 when radical changes were made to Bosnia’s criminal
justice system.

Chapter 2 presented an inter-disciplinary framework for the study of transnational
relations that looked to build upon earlier work across the multiple disciplines of international
relations, socio-legal studies, and political science in its quest to study how transnational actors
could affect domestic state behavior. From transnational studies scholarship within international
relations, this framework accepted the value in studying how transnational actors could affect
domestic state behavior and the importance that the scope and extent of international regulations,
treaties, and regimes governing specific policy areas could have on the potential success (or lack
thereof) of transnational actors in affecting domestic policy change. From socio-legal scholarship
studying the interactions between norms on the international and national levels, this framework
accepted that the nature of norm formation and interaction is iterative. Finally, from historical
institutionalist approaches from political science, this framework accepted that institutions can
both mediate outcomes and shape preferences. These important insights from multiple
disciplines were then brought together to form a framework for the study of transnational
relations which builds on the contributions of the existing literature on “transnational studies”
within international relations but then turns to literature in socio-legal studies and political
science in order to rectify problems of under-specification. This new inter-disciplinary
framework: (1) more explicitly identifies the sequence of the variables that affect the ability of
transnational actors to influence domestic state politics; and (2) replaces the vague concepts of
“international institutionalization” and “domestic state structure” from the original international
relations literature with more detailed and concrete concepts centering on the recursive nature of
norm formation and the importance of institutional structure in influencing outcomes.

As highlighted in Chapter 2, the study of transnational relations in the early years
following the Second World War was dominated by the debate between advocates of the so-
called state-centered approach and advocates of what came to be known as the society-centered
approach. The state-centered approach looked to study how transnational actors affected state
behavior within the international system, whilst the society-centered approach looked beyond
how transnational actors affected state behavior and instead looked to also study how they were
143
actually creating a new institutionalized environment, where the primacy of the state in the
decision-making process (within the international system) was being eroded. New literature in
the mid-1990s tried to move transnational studies beyond the state-centered / society-centered
debate of the past. This new literature premised that, if viewed objectively, the debate between
advocates of the state-centered approach and those of the society-centered one was very much
based on a mistaken premise. What both approaches failed to grasp was that, because both
looked to how transnational actors could affect domestic state behavior, they really in the end
shared the same research question it was only their approach to the question that differed.

The new theoretical framework for the study of transnational actors that emerged in the
mid-1990s was spearheaded with the publication of Thomas Risse’s edited volume, Bringing
Transnational Relations Back In,
1
which looked to reorientate the direction of transnational
studies away from the state-centered versus society-centered debate of the past and instead move
towards synthesizing the two approaches into a realistic understanding of the place of
transnational actors within the international system. By suggesting that the state-centered /
society-centered debate was really a difference of semantics, Risse was able to step over the old
debate and instead propose that the real research question that transnational relations scholars
should ask was the following: under what circumstances are transnational actors successful in
attempting to change policy outcomes (in regards to specific issue-areas) in targeted states?
2
It
was with this question in mind that Risse constructed a theoretical framework for identifying the
conditions in which transnational actors succeed in affecting domestic state policy / behavior.

The theoretical framework Risse conceptualized looked to national level institutions /
networks and the international level norms they operated within, in order to identify the policy
impact of transnational actors. Two general factors were identified as affecting policy impact:
variation in the amount of international institutionalization in regards to the policy being
advocated; and variation in the composition of national level structures of the state being targeted
for influence. International institutionalization was identified as important because such
processes could facilitate the access of transnational actors into national level structures.
3

National level or “domestic” structures mattered because these structures could control both the
ability of transnational actors to access the institutions of the state being targeted and, once in,
form “winning policy coalitions” with relevant national level actors.
4
As highlighted in Chapter
2, although original in its effort to move away from broad discussions of whether the state or
international society is the proper unit of analysis, and innovative in identifying factors that can
shape transnational actor influence, Risse’s framework remains underspecified through being too
vague in describing the factors that affect the ability transnational actors to affect domestic state
behavior. The result is a thin account of how transnational actors matter and a series of

1
See THOMAS RISSE-KAPPEN (ED.), BRINGING TRANSNATIONAL RELATIONS BACK IN: NON-STATE ACTORS,
DOMESTIC STRUCTURES, AND INTERNATIONAL INSTITUTIONS (Cambridge University Press 1995).

2
Thomas Risse-Kappen, Introduction, in BRINGING TRANSNATIONAL RELATIONS BACK IN: NON-STATE ACTORS,
DOMESTIC STRUCTURES, AND INTERNATIONAL INSTITUTIONS 5 (Thomas Risse-Kappen ed., 1995).

3
Id. at 31.

4
Id. at 6-7, 25.

144
measurement problems due to the underlying concepts being much too general. Far from
addressing these issues, the theme of subsequent scholarship has been a duplication of earlier
research, and while many scholars have favorably cited the initial call to bridge the state-
centered / society-centered debate of the past, only a few have taken up the task.
5

As discussed in Chapter 2, an inter-disciplinary framework for the study of transnational
relations would offer a new model for studying transnational actor behavior and the sequencing
of factors that affect their ability to influence domestic state politics. The socio-legal literature
surveyed in Chapter 2, mainly the work of Terence Halliday and Bruce Carruthers on legal
recursivity,
6
described the nature of norm formation and interaction as iterative and marked by
possible recursive cycles driving the transformation of conflicting norms into settled ones --- the
literature identified these cycles as being driven by clear mechanisms. It was proposed that such
insight could offer distinct advantages to the study of how norms (whether primarily
international or national in origin / nature) could be adopted by transnational actors and then
targeted into domestic states. Similarly, the historical institutionalist approach highlighted by the
literature surveyed in Chapter 2, with its emphasis on how institutions both mediate outcomes
and shape preferences, possibly offered a clear path towards the study of how specific cases of
institutional design could influence the ability of transnational actors to affect domestic state
behavior, as well as the development of these processes over time.

At the close of Chapter 2, a 3-stage inter-disciplinary framework was presented for the
study of transnational actor influence over domestic state behavior. This framework proposed to
offer a systematic operationalization of the variables driving the relationships under study, as
well as more explicitly identify the sequence of processes that affect the ability of transnational
actors to influence domestic state politics. Stage 1 of the framework analyzes the nature of the
norms that are adopted by transnational actors and targeted into domestic states. Are these norms
subjected to competing claims and conflicts as to their meanings and application, or rather have
they gained the status of accepted and / or authoritative status? In other words, are recursive
cycles on-going (thereby indicating conflicts as to application and meaning), or rather have such
cycles settled and come to an end (indicating acceptance as to application of meaning)? Stage 2
of the framework looks to how these norms are possibly affected by the design of the institutions
they are filtered through in their application and how this can possibly either magnify or diffuse
transnational actor influence. Stage 3 of the framework tests transnational actor influence by
observing their success / failure in implementing their preferred policy outcomes on targeted
domestic states.

5
Indeed, as discussed in Chapter 1, the running theme of much of this subsequent scholarship has been a duplication
of earlier research. While many scholars have favorably cited the initial call to bridge the state-centered / society-
centered debate of the past, only a few have taken up the task. Additionally, the few scholars that have attempted to
move beyond state-centered / society-centered debates have not meaningfully engaged relevant literature in other
disciplines.

6
See Terence C. Halliday & Bruce G. Carruthers, The Recursivity of Law: Global Norm Making and National Law
Making in the Globalization of Corporate Insolvency Regimes, 112 AM. J. SOC. 1135 (2007); Terence C. Halliday,
Recursivity of Global Normmaking: A Sociolegal Agenda, 5 ANNU. REV. LAW & SOC. SCI. 16.1 (2009).

145
Chapter 3 conducted an in-depth analysis of Terence Halliday and Bruce Carruthers’
theory of legal recursivity, initially first surveyed in Chapter 2, and discussed how legal
recursivity holds that law making and implementation, on both the system and national levels,
can act as an iterative and recursive process driven by four distinct identifiable mechanisms.
7

When norm-making episodes do occur, they have a beginning (time 1), when there are
competing claims and conflicts, and an end (time 2), when behavior and expectations have
become “routinized, orderly, and predictable” by accepted, and therefore authoritative, norms ---
recursive cycles being what occur between time 1 and time 2.

The discussion of legal recursivity at the start of Chapter 3 was framed with the purpose
of setting the stage to test the three main doctrinal areas that have emerged within international
criminal law (crimes against humanity, genocide, and war crimes) against the presence (or lack
thereof) of recursive cycles (stage 1 of the framework). Such an analysis was vital, for recall that
variation in cycles of norm-making was the independent variable at the heart of the framework
for the study of transnational relations presented at the close of Chapter 2. This independent
variable, the existence of on-going versus settled episodes of norm-making (in regards to the
three doctrinal areas of international criminal law analyzed) was operationalized in Chapter 3,
through an analysis of international jurisprudence, scholarly commentary, and documentation
and reports from international organizations and domestic governments. This analysis was
conducted with an eye towards identifying whether the key mechanisms Halliday and Carruthers
identified as driving the process of legal recursivity were present or not. The ultimate conclusion
reached at the close of Chapter 3 was that, whilst crimes against humanity are still the subject of
recursive cycles of norm-making, genocide and war crimes no longer are and have instead
reached the status of status of accepted, and therefore authoritative, norms.

The analysis undertaken in Chapter 3 fed into Chapter 4, which discussed the emergence
of transnational actors in Bosnia-Herzegovina and their attempts to transform the country’s
criminal procedure from a “civil” or inquisitorial model, based on the post-revolutionary French
criminal codes, to a more “common” or accusatorial model, based on the English tradition of de-
centralized justice. Chapter 4 concluded with a discussion of how criminal cases in Bosnia-
Herzegovina are adjudicated by three very different judicial institutions, each in different in
institutional structure but each in theory charged with applying the same accusatorial model of
criminal procedure (stage 2 of the framework). The State-Court of Bosnia-Herzegovina (Sud
Bosne i Hercegovine) is unique as both a “hybrid” judicial institution employing both domestic
and international staff, and as an institution under central governmental control in a highly
decentralized country divided into two “entities” or constituent units --- the Republic of Srpska
(Republika Srpska) and Federation of Bosnia-Herzegovina (Federacija Bosne i Hercegovine).
Local Bosnian district (okružni sudovi) and cantonal (kantonalni sudovi) courts share neither the
hybrid structure of the State-Court nor are under direct central Bosnian government control ---
being run instead on an entity level. All three institutions are empowered to hear cases

7
These four mechanisms are: (1) the indeterminacy of law (the ambiguities inherent in statutes, regulations, and
court opinions that leads to the possible unintended consequences of their application, setting off repeated rounds of
redrafting and reapplication); (2) contradictions (the phenomenon that emerges ideologically when clashing visions
amongst actors leads to imperfect legal settlements, or institutionally when legal implementation is divided out
between different institutions); (3) diagnostic struggles (the struggle, between various actors, of diagnosing
perceived shortcomings in legal norms and identifying corrective prescriptions); and (4) actor mismatch. See
Halliday & Carruthers, supra note 6, at 1149-1151; Halliday, supra note 6, at 16.15-16.19.
146
originating from criminal offenses committed in the territory of the former Yugoslavia during the
conflict of the early 1990s, and all three courts apply (in theory) the same body of law (in regards
to criminal procedure).

Chapter 5 tested whether legal recursivity and / or institutional design have had any
bearing on the attempts of transnational actors to change the procedure through which criminal
cases in Bosnia-Herzegovina were adjudicated post-2003 (stage 3 of the framework). Such an
analysis was possible because, as discussed in Chapter 4, although the international criminal
doctrines of crimes against humanity, genocide, and war crimes are all part of domestic Bosnian
law and directly applicable, the jurisdiction over criminal cases originating from such offenses
are handled by three very different sets of judicial institutions. In Chapter 5, the judgments of the
Bosnian State, district, and cantonal courts arising from international criminal offenses were
collected. These judgments were then coded according to the doctrinal issue area of international
criminal law they dealt with. The operationalization of legal recursivity conducted in Chapter 3,
which checked for the presence (or lack thereof) of recursive cycles in the three main doctrinal
areas of international criminal law, was joined by a set of specifically constructed measurement
indicators designed to capture the unique characteristics of inquisitorial versus accusatorial
models of legal adjudication. What was being tested here was (a) the effect of legal recursivity;
and (b) the mediating effect of institutional design on whether the judicial institution in question
continued to attempt to apply the old pre-2003 inquisitorial criminal procedure, or whether they
applied the new post-2003 accusatorial criminal procedure model. A year to year longitudinal
analysis (2004-2010) was utilized in order to combat threats to the internal validity of any
findings, and the judgments of the Bosnian district and cantonal courts served as non-equivalent
controls (on the Bosnian State-Court) for the mediating effect of institutional design.

Initial findings indicated that legal recursivity had a possible effect on the model of legal
adjudication applied, but that this affect was heavily mediated by the institutional variable. In the
State-Court, institutional factors, such as the informally circulated examples and guides on
judgment writing (put out by some of the international judges on the Court starting), and the shift
in emphasis (in international judge recruitment) to prior international legal experience, seem to
have played an outsized role in changing the procedural model through which cases were
adjudicated --- resulting in a decisive shift towards the accusatorial model. In the district and
cantonal courts, the absence of these institutional variables led to very different results as the
inquisitorial model continued to flourish despite the dismantling of its formal structures in 2003.
This being said, in the district and cantonal courts, recursive cycles of norm-making had a
possible (admittedly heavily mediated) effect on behavior by affecting the choices made in
relation to the specific offenses that individual crimes were prosecuted under. Prosecutions under
crimes against humanity, the one doctrinal area of international criminal law still subject to
recursive cycles of norm-making, were purposefully avoided, and instead all cases heard in the
2004-2010 period in the district / cantonal courts were classified as war crimes. The placing of
what these findings mean in context, and how they fit into the inter-disciplinary framework for
the study of transnational relations first presented in Chapter 2, will be the subject of this final
chapter.

I. Theoretical Considerations and Empirical Findings: An Inter-Disciplinary
Approach to the Study of Transnational Relations
147

The findings presented at the close of Chapter 5 point to the heightened importance of the
mediating institutional variable in determining the model of legal adjudication, inquisitorial or
accusatorial, but also highlight that the independent variable of legal recursivity does play a role
(albeit one that is heavily mediated) in outcomes. These findings demonstrate how a more
systematic approach to the exploration of how transnational actors can possibly affect domestic
state behavior can reveal particularly important insights into the conditions through which such
interventions can find success.

A. The “Sticky” Mediating Institutional Variable in the State-Court

In his well-regarded survey of the historical institutionalist approach within political
science, Evan S. Lieberman describes institutions as “sticky” in the sense that, once firmly
established, they are far more robust and resistant to change than the non-institutional
independent variables that they mediate and filter.
8
If this characterization is to be accepted, what
it means in practical terms is that the stability of institutional arrangements can restrict the span
of outcomes on the dependent variable across cases with similar independent variables.
9
With the
present study, in comparing the models of adjudication employed by the State-Court versus those
employed by the district and cantonal courts, the “sticky” mediating institutional variable led to
very different outcomes on the dependent variable (i.e. a decisive shift towards the accusatorial
model in the State-Court and the stubborn resistance of the inquisitorial model on the district and
cantonal courts). The heavy mediation of the institutional variable in the State-Court muted the
influence of legal recursivity so that it had very little effect on the model of legal adjudication
used. What counted instead were the institutional factors at play in the State-Court (i.e. the
examples and guides on judgment writing put out by some of the American judges on the State-
Court, and the shift in emphasis (in international judge recruitment) to prior international legal
experience).

To put it tritely, then, institutions not only “matter” in assessing the ability of
transnational actors to affect domestic policy change, but they matter a great deal. Such a
conclusion, however, has only been able to be drawn here through the systematic
operationalization of the independent variable cited in this study (legal recursivity). By
understanding the nature of norm formation and interaction as iterative, and marked by possible
recursive cycles driven by clear mechanisms, the process through which such cycles were
triggered and operated in relation to the three main doctrinal areas of international criminal law
could be isolated and studied. Only through being confident in regards to if, when, and where

8
See Evan S. Lieberman, Causal Inference in Historical Institutional Analysis: A Specification of Periodization
Strategies, 34 COMP. POL. STUD. 1011, 1012-1015 (2001).

9
Id. See also ELLEN M. IMMERGUT, HEALTH POLITICS: INTERESTS AND INSTITUTIONS IN WESTERN EUROPE
(Cambridge University Press 1992) (Where the author describes how health policy in several Western European
countries was influenced by the differing institutional arrangements in said countries, despite similar circumstances
arising out of the legacy of the Second World War.); SVEN STEINMO, TAXATION AND DEMOCRACY: SWEDISH,
BRITISH, AND AMERICAN APPROACHES TO FINANCING THE MODERN STATE (Yale University Press 1993) (Where the
author describes how taxation policy in the countries surveyed was influenced by the differing institutional
arrangements in said countries, despite similar circumstances arising out of the legacy of the Second World War.).

148
recursive cycles were at play, could the effect of institutions in mediating such cycles be
established with any confidence. Inferential leverage, then, here was based specifically on the
ability to rigorously operationalize the independent variable of legal recursivity. Future research
must heighten its appreciation of the “sticky” institutional variable and also work towards
assessing the conditions under which its mediating effects can be either reduced or amplified.

B. The Effect of Legal Recursivity in the District and Cantonal Courts

If institutions “matter,” then what of legal recursivity --- does it have any role at all to
play in determining the ability of transnational actors in affecting domestic policy change in
Bosnia-Herzegovina? In observing the reluctance of the district and cantonal courts to charge
and try alleged international offenses as crimes against humanity, and instead rely on the 1977
SFRJ Criminal Code to charge such offenses exclusively as war crimes, evidence emerged that
indicated a possible explanation stemming from the unsettled nature of crimes against humanity.
As the analysis in Chapter 3 made clear, the international offense of crimes against humanity is
still subject to recursive cycles and thus subject to competing claims and conflicts as to its
meaning and application. War crimes, on the other hand, is no longer subject to such cycles of
norm-making and has thus become standardized and clear in terms of its meaning and
application. The lack of training and exposure of district / cantonal prosecutors and judges to the
most recent cutting edge doctrinal developments in international criminal law presents a
compelling explanation for their behavior, especially when compared side by side to the very
different state of affairs in the State-Court, where institutional dynamics ensured that access to
such cutting edge doctrinal developments were well represented in the form of international
judges with extensive experience in these areas.

Legal recursivity then, “matters” as well in assessing the ability of transnational actors to
affect domestic policy change, but it is one that is heavily mediated by institutional factors.
Future research must appreciate this complicated inter-play between legal recursivity and
institutional design and investigate more closely the ways in which legal recursivity can
influence the behavior of transnational actors independent of the mediating effect of institutional
design. Future work must also more specifically study how exactly legal recursivity can both
possibly assist in transnational actor penetration into domestic state structures (in the present
study, given the unique position of Bosnia-Herzegovina vis-à-vis transnational actors,
penetration was taken for granted) and continue the investigation begun here in this study on
how the nature of norms and the timing of sequences can amplify / moot transnational actor
influence on targeted states.

II. Policy Considerations: A Final Word

The accusatorial model of legal adjudication has made inroads in Bosnia-Herzegovina,
but only in a highly limited manner in one very unique judicial institution --- the State-Court. In
the country’s main courts, the district and cantonal courts, the inquisitorial model has remained,
despite the dismantling of its formal structures in 2003. Even without the non-partisan
investigative judge, new procedures limiting the role of the presiding judge at trial, and the
introduction of the concepts of the authentication of evidence at trial and the cross examination
of witnesses, the inquisitorial model still found a way to function. As highlighted in Chapter 5,
149
necessary adaptions were made to make up for the lack of the investigative judge and his all-
encompassing dossier by the district and cantonal judges that enabled the inquisitorial to
continue to operate.
10

The resilience of the inquisitorial model in Bosnia-Herzegovina points to a particular
dynamic at play --- that of “path dependence.” Path dependence refers to the idea that established
institutions can engender “powerful inducements that reinforce their own stability and further
development.”
11
In other words, institutional arrangements can entrench over time in a way that
makes them exceedingly difficult to reverse. As the discussion in Chapter 4 pointed out, the
inquisitorial model of legal adjudication in Bosnia-Herzegovina has been in place for a very long
period of time and proven especially resilient to attempts to alter it, whether by the Yugoslav
Communist Party in 1948 (in attempting to replace it with a socialist legal model) or, seemingly,
by transnational actors in 2003.

In terms of policy considerations, what do such findings reveal about the wisdom of
transnational actors attempting to affect domestic policy change in targeted states? In Bosnia-
Herzegovina, at first glance, it seems that the attempt was a qualified failure in that the
accusatorial model of legal adjudication imposed by transnational actors has made only very
limited inroads in the country. If the goal of transnational actors in 2003 was to begin a process
of “reform” in a country wracked by post-war corruption and negligence in its legal system, then
the results today are truly problematic, for what redeeming purpose does it serve when the
majority of a country’s courts are systematically unable / unwilling to implement the procedural
model of adjudication that the letter of the law commits them to follow? To take the point
further, why is the accusatorial model of legal adjudication particularly adept at addressing such
problems?
12
Was the inquisitorial model of legal adjudication truly the source of ills in post-war
Bosnia-Herzegovina’s legal system, as transnational actors seemed to continually suggest in the
period up to 2003?
13
As the extensive discussion of the two models of legal adjudication,
inquisitorial and accusatorial, presented in this study has made clear, neither model is, by itself,
particularly inclined to the administration of justice and good governance. Instead, the two

10
See Chapter 5 § II(B) for a discussion of the technique used by district / cantonal court judges, which allowed them to
continue employing the inquisitorial model of adjudication even though its formal structures had been dismantled. Recall that
this technique involved incorporating the formally separate (pre-2003) investigative reports that had been previously
compiled by the investigative judge, into the written judgment itself.

11
Paul Pierson, Increasing Returns, Path Dependence, and the Study of Politics, 94 AM. POL. SCI. REV. 251, 252-
253 (2000).

12
Indeed, well known comparative scholars have criticized the accusatorial model as exacerbating the potential for
inconsistency and unequal treatment in criminal adjudication, see ROBERT A. KAGAN, ADVERSARIAL LEGALISM:
THE AMERICAN WAY OF LAW 61 (Harvard University Press 2001).

13
See Chapter 4 § II(C). See also UNITED NATIONS MISSION TO BOSNIA AND HERZEGOVINA, JUDICIAL SYSTEM
ASSESSMENT PROGRAM THEMATIC REPORT VIII: PROSECUTING CORRUPTION 29-34 (2000) (Describing the
inquisitorial model of legal adjudication employed in Bosnia-Herzegovina as open to manipulation and corruption.);
UNITED NATIONS MISSION TO BOSNIA AND HERZEGOVINA, JUDICIAL SYSTEM ASSESSMENT PROGRAM THEMATIC
REPORT X: SERVING THE PUBLIC 6, 32-33, 43-44 (2000) (Describing the inquisitorial model of legal adjudication
employed in Bosnia-Herzegovina as inefficient.).
150
models present different approaches to legal adjudication born out of different historical
circumstances and defined by different institutional pathologies.

The one silver lining in the attempt of transnational actors to affect domestic policy
change in Bosnia-Herzegovina --- the emergence of the accusatorial model in the State-Court ---
may or may not prove to be fleeting. On the one hand, the institutional factors introduced into the
State-Court have clearly played an outsized role in changing the procedural model through which
cases were adjudicated. On the other hand, it must be asked whether (a) these institutional factors
will outlast the departure of the international judges from the Court (the last of which, Phillip
Weiner, departed in December 2012); and (b) whether such institutional factors can be replicated
in the district and cantonal courts in any way. In one way, the work of transnational actors in
Bosnia-Herzegovina with the State-Court was a rousing success --- they managed to replicate, on
a smaller scale, a domestic version of the International Criminal Tribunal for the former
Yugoslavia (ICTY). This smaller scale model (the State-Court) was complete with the same
model of criminal procedure employed by the ICTY, and even contained international judges,
many of whom formerly served on the ICTY in some capacity. The State-Court has emerged as
an important institution in Bosnia-Herzegovina, engaged with the vital task of adjudicating the
myriad of horrific crimes committed during the violent conflict that engulfed it the early 1990s.
This being said, if this was the end goal of transnational actors and the legal “reform” they
pushed in Bosnia-Herzegovina in 2003, it could be asked the cost at which this was achieved,
and whether there were any other alternatives available in achieving it by working within the
inquisitorial model that had proven so resilient in Bosnia-Herzegovina, instead of against it.

151

APPENDICES

APPENDIX I: The Development of Crimes Against Humanity as an International
Offense

APPENDIX II: The Development of Genocide as an International Offense

APPENDIX III: The Development of War Crimes as an International Offense

APPENDIX IV: A Comparison of International Offenses under Domestic Bosnian and
International Law

APPENDIX V: Examples of Witness Testimony Collected and Proofed into the Dossier
under the Inquisitorial Model Practiced in the former Yugoslavia and (pre-
2003) Bosnia-Herzegovina

APPENDIX VI: Example of Investigation Report Collected and Proofed into the Dossier
under the Inquisitorial Model Practiced in the former Yugoslavia and (pre-
2003) Bosnia-Herzegovina

APPENDIX VII: Example of Written Judgment under the Inquisitorial Model Practiced in
the former Yugoslavia and (pre-2003) Bosnia-Herzegovina (Dismissal of
Charges)

APPENDIX VIII: Example of Written Judgment under the Inquisitorial Model Practiced in
the former Yugoslavia and (pre-2003) Bosnia-Herzegovina (Acquittal)

APPENDIX IX: Example of Written Judgment under the Inquisitorial Model Practiced in
the former Yugoslavia and (pre-2003) Bosnia-Herzegovina (Conviction)

APPENDIX X: Example of Indictment Broken Down into Component Parts (aka
“Indictment Flowchart”) under the Accusatorial Model Practiced in (post-
2003) Bosnia-Herzegovina

APPENDIX XI: Example of an Outline to a Written Judgment under the Accusatorial
Model Practiced in (post-2003) Bosnia-Herzegovina

APPENDIX XII: Example of a Draft Section of a Written Judgment under the Accusatorial
Model Practiced in (post-2003) Bosnia-Herzegovina

APPENDIX XIII: Completed First Instance State-Court of Bosnia-Herzegovina Cases (2004-
2010)

152
APPENDIX XIV: Completed First Instance District and Cantonal Court Cases, Bosnia-
Herzegovina (2004-2010)

153
APPENDIX I: The Development of Crimes Against Humanity as an International
Offense

---------------------------------------------------------------------------------------------------------------------

Crimes Against Humanity
1945 IMT
CHARTER
(ARTICLE
6(c))
1945
ALLIED
CONTROL
COUNCIL
LAW NO. 10
(ARTICLE
II(c))
1954 ILC
DRAFT
CODE OF
CRIMES
AGAINST
THE PEACE
AND
SECURITY
OF
MANKIND
(ARTICLE
2(11))
1993 ICTY
STATUTE
(ARTICLE 5)
1994 ICTR
STATUTE
(ARTICLE 3)
1996 ILC
DRAFT
CODE OF
CRIMES
AGAINST
THE PEACE
AND
SECURITY
OF
MANKIND
(ARTICLE 18)
1998 ROME
STATUTE OF
THE ICC
(ARTICLE 7)
The following
acts, or any of
them, are
crimes coming
within the
jurisdiction of
the Tribunal
for which
there shall be
individual
responsibility:

…
(c) Crimes
against
humanity:
namely,
murder,
extermination,
enslavement,
deportation,
and other
inhumane acts
committed
against any
civilian
population,
before or
during the
war; or
persecutions
on political,
racial or
religious
grounds in
execution of or
in connection
with any crime
within the
Each of the
following acts
is recognized
as a crime:

…
(c) Crimes
against
humanity:
Atrocities and
offences,
including but
not limited to
murder,
extermination,
enslavement,
deportation,
imprisonment,
torture, rape, or
other inhumane
acts committed
against any
civilian
population, or
persecutions on
political,
racial or
religious
grounds
whether or not
in violation of
the domestic
laws of the
country where
perpetrated.
The following
acts are
offences
against the
peace and
security of
mankind:

…
Inhuman acts
such as
murder,
extermination,
enslavement,
deportation or
persecutions,
committed
against any
civilian
population on
social,
political,
racial, religious
or cultural
grounds by the
authorities of a
State or by
private
individuals
acting at the
instigation or
with the
toleration of
such
authorities.
The
International
Tribunal shall
have the power
to prosecute
persons
responsible for
the
following
crimes when
committed in
armed conflict,
whether
international or
internal in
character, and
directed
against any
civilian
population:

(a) Murder;
(b)
Extermination;
(c)
Enslavement;
(d)
Deportation;
(e)
Imprisonment;
(f) Torture;
(g) Rape;
(h)
Persecutions
on political,
racial and
religious
grounds;
(i) Other
The
International
Tribunal for
Rwanda shall
have the power
to prosecute
persons
responsible
for the
following
crimes when
committed as
part of a
widespread or
systematic
attack
against any
civilian
population on
national,
political,
ethnic, racial or
religious
grounds:

(a) Murder;
(b)
Extermination;
(c)
Enslavement;
(d)
Deportation;
(e)
Imprisonment;
(f) Torture;
(g) Rape;
(h)
Persecutions
on political,
A crime against
humanity means
any of the
following acts,
when committed
in a systematic
manner or on a
large scale and
instigated or
directed by a
Government or
by any
organization or
group:

(a) Murder;
(b)
Extermination;
(c) Torture;
(d) Enslavement;
(e) Persecution
on political,
racial, religious
or ethnic
grounds;
(f)
Institutionalized
discrimination
on racial, ethnic
or religious
grounds
involving the
violation of
fundamental
human rights
and freedoms
and resulting in
seriously
disadvantaging a
(1) For the
purpose of this
Statute, ‘crime
against
humanity’
means any of
the following
acts when
committed as
part of a
widespread or
systematic
attack directed
against any
civilian
population, with
knowledge of
the attack:

(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;
154
jurisdiction of
the Tribunal,
whether or not
in violation of
the
domestic law
of the country
where
perpetrated.
inhumane acts. racial and
religious
grounds;
(i) Other
inhumane acts.
part of the
population;
(g) Arbitrary
deportation or
forcible transfer
of population;
(h) Arbitrary
imprisonment;
(i) Forced
disappearance of
persons;
(j) Rape,
enforced
prostitution and
other forms of
sexual abuse;
(k) Other
inhumane acts
which severely
damage physical
or mental
integrity, health
or human
dignity, such as
mutilation and
severe bodily
harm.
(g) Rape, sexual
slavery,
enforced
prostitution,
forced
pregnancy,
enforced
sterilization,
or any other
form of sexual
violence of
comparable
gravity;
(h) Persecution
against any
identifiable
group or
collectivity on
political, racial,
national, ethnic,
cultural,
religious, gender
… or other
grounds that are
universally
recognized as
impermissible
under
international
law, in
connection with
any act
referred to in
this paragraph
or any crime
within the
jurisdiction of
the Court;
(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.

---------------------------------------------------------------------------------------------------------------------

155
APPENDIX II: The Development of Genocide as an International Offense

---------------------------------------------------------------------------------------------------------------------

Genocide
1948 GENOCIDE
CONVENTION
(ARTICLE 2)
1993 ICTY
STATUTE
(ARTICLE 4)
1994 ICTR
STATUTE
(ARTICLE 2)
1996 ILC DRAFT
CODE OF CRIMES
AGAINST THE
PEACE AND
SECURITY OF
MANKIND
(ARTICLE 17)
1998 ROME
STATUTE OF THE
ICC
(ARTICLE 6)
In the present Convention,
genocide means any of the
following acts committed
with intent to destroy, in
whole or in part, a national,
ethnical, racial or religious
group, as such:

(a) Killing members of the
group;
(b) Causing serious bodily or
mental harm to members of
the group;
(c) Deliberately inflicting on
the group conditions of life
calculated to bring about its
physical destruction in
whole or in part;
(d) Imposing measures
intended to prevent births
within the group;
(e) Forcibly transferring
children of the group to
another group.
(2) Genocide means
any of the following
acts committed with
intent to destroy, in
whole or in part, a
national, ethnical,
racial or religious
group, as such:

(a) Killing members
of the group;
(b) Causing serious
bodily or mental harm
to members of the
group;
(c) Deliberately
inflicting on the
group conditions of
life calculated to
bring about its
physical destruction
in whole or in part;
(d) Imposing
measures intended to
prevent births within
the group;
(e) Forcibly
transferring children
of the group to
another group.
(2) Genocide
means any of the
following acts
committed with
intent to destroy,
in whole or in
part, a national,
ethnical, racial or
religious group,
as such:

(a) Killing
members of the
group;
(b) Causing
serious bodily or
mental harm to
members of the
group;
(c) Deliberately
inflicting on the
group conditions
of life calculated
to bring about its
physical
destruction in
whole or in part;
(d) Imposing
measures
intended to
prevent births
within the group;
(e) Forcibly
transferring
children of the
group to another
group.
A crime of genocide
means any of the
following acts
committed with intent
to destroy, in whole or
in part, a national,
ethnic, racial or
religious group, as
such:

(a) Killing members of
the group;
(b) Causing serious
bodily or mental harm
to members of the
group;
(c) Deliberately
inflicting on the group
conditions of life
calculated to bring
about its physical
destruction in whole or
in part;
(d) Imposing measures
intended to prevent
births within the group;
(e) Forcibly
transferring children of
the group to another
group.

For the purpose of this
Statute, "genocide"
means any of the
following acts
committed with intent
to destroy, in whole or
in part, a national,
ethnical, racial or
religious group, as such:

(a) Killing members of
the group;
(b) Causing serious
bodily or mental harm
to members of the
group;
(c) Deliberately
inflicting on the group
conditions of life
calculated to bring
about its physical
destruction in whole or
in part;
(d) Imposing measures
intended to prevent
births within the group;
(e) Forcibly transferring
children of the group to
another group.

---------------------------------------------------------------------------------------------------------------------

156
APPENDIX III: The Development of War Crimes as an International Offense

---------------------------------------------------------------------------------------------------------------------

War Crimes

1907 HAGUE
CONVENTION
NO. IV (ARTICLES
23, 25, 27, 28)
1949 GENEVA
CONVENTIONS
(ARTICLES I/50,
II/51, III/130,
IV/147)
1993 ICTY
STATUTE
(ARTICLES 2, 3)
1998 ROME
STATUTE OF THE
ICC
(ARTICLES 8(2)(a),
8(2)(b))
1

“HAGUE LAW:” 23. In addition to the
prohibitions provided
by special
Conventions, it is
especially Forbidden:

(a) To employ poison
or poisoned weapons;
(b) To kill or wound
treacherously
individuals belonging
to the hostile nation or
army;
(c) To kill or wound an
enemy who, having
laid down his arms, or
having no longer
means of defense, has
surrendered at
discretion;
(d) To declare that no
quarter will be given;
(e) To employ arms,
projectiles, or material
calculated to cause
unnecessary suffering;
(f) To make improper
use of a flag of truce,
of the national flag or
of the military insignia
and uniform of the
enemy, as well as the
distinctive badges of
the Geneva
Convention;
(g) To destroy or seize
the enemy's property,
unless such destruction
or seizure be
imperatively demanded
by the necessities of
war;
(h) To declare
n/a 3. The International
Tribunal shall have the
power to prosecute
persons violating the
laws or customs of
war. Such violations
shall include, but not
be limited to:

(a) Employment of
poisonous weapons or
other weapons
calculated to cause
unnecessary suffering;
(b) Wanton destruction
of cities, towns or
villages, or devastation
not justified by
military necessity;
(c) Attack, or
bombardment, by
whatever means, of
undefended towns,
villages, dwellings, or
buildings;
(d) Seizure of,
destruction or willful
damage done to
institutions dedicated
to religion, charity and
education, the arts and
sciences, historic
monuments and works
of art and science;
(e) Plunder of public or
private property.
2. For the purpose of
this Statute, "war
crimes" means:

(b) Other serious
violations of the laws
and customs applicable
in international armed
conflict, within the
established framework
of international law,
namely, any of the
following acts:

…
(vi) Killing or
wounding a combatant
who, having laid down
his arms or having no
longer means of
defense, has
surrendered at
discretion;
(vii) Making improper
use of a flag of truce,
of the flag or of the
military insignia and
uniform of the enemy
or of the United
Nations, as well as of
the distinctive
emblems of the
Geneva Conventions,
resulting in death or
serious personal injury;
…
(ix) Intentionally
directing attacks
against buildings
dedicated to religion,
education, art, science
or charitable purposes,
historic monuments,

1
For the sake of brevity, the provisions of the Rome Statute incorporating the 1977 Additional Protocols have not
been included. For a list of these provisions, see GIDEON BOAS, JAMES L. BISCHOFF, & NATALIE L. REID, ELEMENTS
OF CRIMES UNDER INTERNATIONAL LAW 292 n.436 (Cambridge University Press 2008).

157
abolished, suspended,
or inadmissible in a
court of law the rights
and actions of the
nationals of the hostile
party. A belligerent is
likewise forbidden to
compel the nationals of
the hostile party to take
part in the operations
of war directed against
their own country,
even if they were in the
belligerent's service
before the
commencement of the
war.

…
25. The attack or
bombardment, by
whatever means, of
towns, villages,
dwellings, or buildings
which are undefended
is prohibited.

…
27. In sieges and
bombardments all
necessary steps must
be taken to spare, as
far as possible,
buildings dedicated to
religion, art, science,
or charitable purposes,
historic monuments,
hospitals, and places
where the sick and
wounded are collected,
provided they are not
being used at the time
for military purposes.

It is the duty of the
besieged to indicate the
presence of such
buildings or places by
distinctive and visible
signs, which shall be
notified to the enemy
beforehand.

28. The pillage of a
town or place, even
when taken by assault,
is prohibited.
hospitals and places
where the sick and
wounded are collected,
provided they are not
military objectives;
…
(xi) Killing or
wounding
treacherously
individuals belonging
to the hostile nation or
army;
(xii) Declaring that no
quarter will be given;
(xiii) Destroying or
seizing the enemy's
property unless such
destruction or seizure
be imperatively
demanded by the
necessities of war;
…
(xv) Compelling the
nationals of the hostile
party to take part in the
operations of war
directed against their
own country, even if
they were in the
belligerent's service
before the
commencement of the
war;
(xvi) Pillaging a town
or place, even when
taken by assault;
(xvii) Employing
poison or poisoned
weapons.

“GENEVA LAW:” n/a 147. Grave breaches to
which the preceding
Article relates shall be
those involving any of
the following acts, if
2. The International
Tribunal shall have the
power to prosecute
persons committing or
ordering to be
2. For the purpose of
this Statute, "war
crimes" means:

(a) Grave breaches of
158
committed against
persons or property
protected by the
present Convention:

Willful killing, torture
or inhuman treatment,
including biological
experiments, willfully
causing great suffering
or serious injury to
body or health,
unlawful deportation
or transfer or unlawful
confinement of a
protected person,
compelling a protected
person to serve in the
forces of a hostile
Power, or willfully
depriving a protected
person of the rights of
fair and regular trial
prescribed in the
present Convention,
taking of hostages and
extensive destruction
and appropriation of
property, not justified
by military necessity
and carried out
unlawfully and
wantonly.
committed grave
breaches of the Geneva
Conventions of 12
August 1949, namely
the following acts
against persons or
property protected
under the provisions of
the relevant Geneva
Convention:

(a) Willful killing;
(b) Torture or inhuman
treatment, including
biological experiments;
(c) Willfully causing
great suffering or
serious injury to body
or health;
(d) Extensive
destruction and
appropriation of
property, not justified
by military necessity
and carried out
unlawfully and
wantonly;
(e) Compelling a
prisoner of war or a
civilian to serve in the
forces of a hostile
power;
(f) Willfully depriving
a prisoner of war or a
civilian of the rights of
fair and regular trial;
(g) Unlawful
deportation or transfer
or unlawful
confinement of a
civilian;
(h) Taking civilians as
hostages.
the Geneva
Conventions of 12
August 1949, namely,
any of the following
acts against persons or
property protected
under the provisions of
the relevant Geneva
Convention:

(i) Willful killing;
(ii) Torture or inhuman
treatment, including
biological experiments;
(iii) Willfully causing
great suffering, or
serious injury to body
or health;
(iv) Extensive
destruction and
appropriation of
property, not justified
by military necessity
and carried out
unlawfully and
wantonly;
(v) Compelling a
prisoner of war or
other protected person
to serve in the forces of
a hostile Power;
(vi) Willfully
depriving a prisoner of
war or other protected
person of the rights of
fair and regular trial;
(vii) Unlawful
deportation or transfer
or unlawful
confinement;
(viii) Taking of
hostages.

---------------------------------------------------------------------------------------------------------------------

159
APPENDIX IV: A Comparison of International Offenses under Domestic Bosnian and
International Law

---------------------------------------------------------------------------------------------------------------------

OFFENSE LEGAL SOURCE
DOMESTIC INTERNATIONAL
1977 SFRJ
CRIMINAL
CODE
2003 BIH
CRIMINAL
CODE
1993 ICTY
STATUTE
1998 ROME
STATUTE OF
THE ICC
CRIMES AGAINST
HUMANITY
Enacting Clause

n/a
Enacting Clause
(Article 172 (1))

(1) Whoever, as part
of a widespread or
systematic attack
directed against any
civilian population,
with knowledge of
such an attack
perpetrates any of the
following acts:
Enacting Clause
(Article 5)

The International
Tribunal shall have
the power to
prosecute persons
responsible for the
following crimes
when committed in
armed conflict,
whether international
or internal in
character, and
directed against any
civilian population:
Enacting Clause
(Article 7 (1))

For the purpose of
this Statute, “crime
against humanity”
means any of the
following acts when
committed as part of
a widespread or
systematic attack
directed against any
civilian population,
with knowledge of
the attack:
Murder

n/a

Murder (Article
172 (1) (a))

(a) Depriving another
person of his life
(murder)
Murder (Article 5
(a))

(a) Murder
Murder (Article 7
(a))

(a) Murder
Extermination

n/a
Extermination
(Article 172 (1)
(b))

(b) Extermination
Extermination
(Article 5 (b))

(b) Extermination
Extermination
(Article 7 (b))

(b) Extermination
Enslavement

n/a
Enslavement
(Article 172 (1) (c))

(c) Enslavement
Enslavement
(Article 5 (c))

(c) Enslavement
Enslavement
(Article 7 (c))

(c) Enslavement
Deportation

n/a

Deportation
(Article 172 (1)
(d))

(d) Deportation or
forcible transfer of
population
Deportation
(Article 5 (d))

(d) Deportation
Deportation
(Article 7 (d))

(d) Deportation or
forcible transfer of
population
Imprisonment

n/a

Imprisonment
(Article 172 (1) (e))

(e) Imprisonment or
other severe
deprivation of
physical liberty in
violation of
Imprisonment
(Article 5 (e))

(e) Imprisonment
Imprisonment
(Article 7 (e))

(e) Imprisonment or
other severe
deprivation of
physical liberty in
violation of
160
fundamental rules of
international law
fundamental rules of
international law
Torture

n/a
Torture (Article
172 (1) (f))

(f) Torture
Torture (Article 5
(f))

(f) Torture
Torture (Article 7
(f))

(f) Torture
Sexual Intercourse
through Coercion

n/a

Sexual Intercourse
through Coercion
(Article 172 (1)
(g))

(g) Coercing another
by force or by threat
of immediate attack
upon his life or limb,
or the life or limb of a
person close to him,
to sexual intercourse
or an equivalent
sexual act (rape),
sexual slavery,
enforced prostitution,
forced pregnancy,
enforced sterilization
or any other form of
sexual violence of
comparable gravity
Sexual Intercourse
through Coercion
(Article 5 (g))

(g) Rape
Sexual Intercourse
through Coercion
(Article 7 (g))

(g) Rape, sexual
slavery, enforced
prostitution, forced
pregnancy, enforced
sterilization, or any
other form of sexual
violence of
comparable gravity
Persecution
Against a
Collectivity

n/a

Persecution
Against a
Collectivity
(Article 172 (1)
(h))

(h) Persecutions
against any
identifiable group or
collectivity on
political, racial,
national, ethnic,
cultural, religious or
sexual gender or
other grounds that are
universally
recognized as
impermissible under
international law, in
connection with any
offense listed in this
paragraph of this
Code, any offense
listed in this Code or
any offense falling
under the competence
of the Court of
Bosnia and
Herzegovina
Persecution
Against a
Collectivity
(Article 5 (h))

(h) persecutions on
political, racial and
religious grounds
Persecution
Against a
Collectivity
(Article 7 (h))

(h) Persecution
against any
identifiable group or
collectivity on
political, racial,
national, ethnic,
cultural, religious,
gender as defined in
paragraph 3, or other
grounds that are
universally
recognized as
impermissible under
international law, in
connection with any
act referred to in this
paragraph or any
crime within the
jurisdiction of the
Court
Enforced
Disappearance

Enforced
Disappearance
(Article 172 (1) (i))

Enforced
Disappearance

Enforced
Disappearance
(Article 7 (i))

161
n/a (i) Enforced
disappearance of
persons
n/a (i) Enforced
disappearance of
persons
Apartheid

n/a
Apartheid (Article
172 (1) (j))

(j) The crime of
apartheid
Apartheid

n/a
Apartheid (Article
7 (j))

(j) The crime of
apartheid
Inhumane Acts
Causing Injury or
Anguish

n/a

Inhumane Acts
Causing Injury or
Anguish (Article
172 (1) (k))

(k) Other inhumane
acts of a similar
character
intentionally causing
great suffering, or
serious injury to body
or to physical or
mental health
Inhumane Acts
Causing Injury or
Anguish (Article 5
(i))

(i) Other inhumane
acts
Inhumane Acts
Causing Injury or
Anguish (Article 7
(k))

(k) Other inhumane
acts of a similar
character
intentionally causing
great suffering, or
serious injury to body
or to physical or
mental health
GENOCIDE Enacting Clause

n/a
Enacting Clause
(Article 171)

Whoever, with an aim
to destroy, in whole
or in part, a national,
ethnical, racial or
religious group,
orders perpetration or
perpetrates any of the
following acts:
Enacting Clause
(Article 4)

Genocide means any
of the following acts
committed with intent
to destroy, in whole
or in part, a national,
ethnical, racial or
religious group, as
such:

Enacting Clause
(Article 6)

For the purpose of
this Statute,
“genocide” means
any of the following
acts committed with
intent to destroy, in
whole or in part, a
national, ethnical,
racial or religious
group, as such:
Genocide (Article
141)

Whoever, with the
intention of
destroying a national,
ethnic, racial or
religious group in
whole or in part,
orders the
commission of
killings or the
inflicting of serious
bodily injuries or
serious disturbance of
physical or mental
health of the group
members, or a
forcible dislocation
of the population, or
that the group be
inflicted conditions
of life calculated to
bring about its
physical destruction
in whole or in part, or
that measures be
Genocide (Article
171)

(a) Killing members
of the group;
(b) Causing serious
bodily or mental
harm to members of
the group;
(c) Deliberately
inflicting on the
group conditions of
life calculated to
bring about its
physical destruction
in whole or in part;
(d) Imposing
measures intended to
prevent births within
the group;
(e) Forcibly
transferring children
of the group to
another group
Genocide (Article
4)

(a) Killing members
of the group;
(b) Causing serious
bodily or mental
harm to members of
the group;
(c) Deliberately
inflicting on the
group conditions of
life calculated to
bring about its
physical destruction
in whole or in part;
(d) Imposing
measures intended to
prevent births within
the group;
(e) Forcibly
transferring children
of the group to
another group.
Genocide (Article
6)

(a) Killing members
of the group;
(b) Causing serious
bodily or mental
harm to members of
the group;
(c) Deliberately
inflicting on the
group conditions of
life calculated to
bring about its
physical destruction
in whole or in part;
(d) Imposing
measures intended to
prevent births within
the group;
(e) Forcibly
transferring children
of the group to
another group.
162
imposed intended to
prevent births within
the group, or that
children of the group
be forcibly
transferred to another
group, or whoever
with the same intent
commits one of the
foregoing acts
WAR CRIMES
(AGAINST
CIVILIANS)
Enacting Clause
(Article 142)

Whoever in violation
of rules of
international law
effective at the time
of war, armed
conflict or
occupation, orders
that civilian
population be subject
to:

Enacting Clause
(Article 173 (1))

(1) Whoever in
violation of rules of
international law in
time of war, armed
conflict or
occupation, orders or
perpetrates any of the
following acts:
Enacting Clause
(Article 2)

The International
Tribunal shall have
the power to
prosecute persons
committing or
ordering to be
committed grave
breaches of the
Geneva Conventions
of 12 August 1949,
namely the following
acts against persons
or property protected
under the provisions
of the relevant
Geneva Convention:
Enacting Clause
(Article 8 (1))

(1) The Court shall
have jurisdiction in
respect of war crimes
in particular when
committed as part of
a plan or policy or as
part of a large-scale
commission of such
crimes
Attack on Civilian
Population (Article
142)

Application of
measures of
intimidation and
terror, taking
hostages, imposing
collective
punishment, unlawful
bringing in
concentration camps
and other illegal
arrests and detention,
deprivation of rights
to fair and impartial
trial
Attack on Civilian
Population (Article
173 (1) (a))

(a) Attack on civilian
population,
settlement, individual
civilians or persons
unable to fight, which
results in the death,
grave bodily injuries
or serious damaging
of people’s health
Attack on Civilian
Population (Article
2 (c))

(c) Willfully causing
great suffering or
serious injury to body
or health

Attack on Civilian
Population (Article
8 (2)(b)(i))

(i) Intentionally
directing attacks
against the civilian
population as
such or against
individual civilians
not taking direct part
in hostilities
Negligent Attack
on Target which
results in Civilian
Harm

n/a
Negligent Attack
on Target which
results in Civilian
Harm (Article 173
(1) (b))

(b) Attack without
selecting a target, by
which civilian
population is harmed
Negligent Attack
on Target which
results in Civilian
Harm (Article 2
(a))

(a) Willful killing

Negligent Attack
on Target which
results in Civilian
Harm (Article 8
(2)(b)(iv))

(iv) Intentionally
launching an attack in
the knowledge that
such attack will cause
incidental loss of life
or injury to civilians
or damage to civilian
163
objects or
widespread, long-
term and severe
damage to the natural
environment which
would be clearly
excessive in relation
to the concrete and
direct overall military
advantage anticipated
Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Article 142)

Killings, torture,
inhuman treatment,
biological
experiments,
immense suffering or
violation of bodily
integrity or health

Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Article 173 (1) (c))

(c) Killings,
intentional infliction
of severe physical or
mental pain or
suffering upon a
person (torture),
inhuman treatment,
biological, medical or
other scientific
experiments, taking
of tissue or organs for
the purpose of
transplantation,
immense suffering or
violation of bodily
integrity or health
Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Articles 2 (a), (b)

(a) Willful killing

(b) Torture or
inhuman treatment,
including biological
experiments

Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Article 8 (2)(a)(ii))

(ii) Torture or
inhuman treatment,
including biological
experiments
Forced Conversion
/ Deportation
(Article 142)

Dislocation or
displacement or
forcible conversion to
another nationality or
religion
Forced Conversion
/ Deportation
(Article 173 (1)
(d))

(d) Dislocation or
displacement or
forced conversion to
another nationality or
religion
Forced Conversion
/ Deportation
(Article 2 (g))

(g) Unlawful
deportation or
transfer or unlawful
confinement of a
civilian
Forced Conversion
/ Deportation
(Article 8
(2)(a)(vi))

(vi) Unlawful
deportation or
transfer or unlawful
confinement
Rape / Forcible
Prostitution,
Intimidation /
Terror, Hostage
Taking, Collective
punishment,
Unlawful
Detention,
Deprivation of
Right to Fair Trial,
Forcible Service in
Enemy Armed
Service (Article
142)
Rape / Forcible
Prostitution,
Intimidation /
Terror, Hostage
Taking, Collective
punishment,
Unlawful
Detention,
Deprivation of
Right to Fair Trial,
Forcible Service in
Enemy Armed
Service (Article
173 (1) (e))
Rape / Forcible
Prostitution,
Intimidation /
Terror, Hostage
Taking, Collective
punishment,
Unlawful
Detention,
Deprivation of
Right to Fair Trial,
Forcible Service in
Enemy Armed
Service (Article 2
(e), (f), (h))
Rape / Forcible
Prostitution,
Intimidation /
Terror, Hostage
Taking, Collective
punishment,
Unlawful
Detention,
Deprivation of
Right to Fair Trial,
Forcible Service in
Enemy Armed
Service (Article 8
(2)(a)(viii),
164

Forcible prostitution
or rape

Forcible service in
the armed forces of
enemy's army or in
its intelligence
service or
administration

(e) Coercing another
by force or by threat
of immediate attack
upon his life or limb,
or the life or limb of a
person close to him,
to sexual intercourse
or an equivalent
sexual act (rape) or
forcible prostitution,
application of
measures of
intimidation and
terror, taking of
hostages, imposing
collective
punishment, unlawful
bringing in
concentration camps
and other illegal
arrests and detention,
deprivation of rights
to fair and impartial
trial, forcible service
in the armed forces of
enemy’s army or in
its intelligence
service or
administration

(e) Compelling a
prisoner of war or a
civilian to serve in
the forces of a hostile
power

(f) Willfully
depriving a prisoner
of war or a civilian of
the rights of fair and
regular trial

(h) Taking civilians
as hostages
(2)(b)(xxii),
(2)(b)(xiv))

(xxii) Committing
rape, sexual slavery,
enforced prostitution,
forced pregnancy …
enforced sterilization,
or any other form of
sexual violence also
constituting a
grave breach of the
Geneva Conventions

(xiv) Declaring
abolished, suspended
or inadmissible in a
court of law the
rights and actions of
the nationals of the
hostile party

(viii) Taking of
hostages.
Forced Labor /
Property
Confiscation /
Requisitioning
(Article 142)

Forcible labor,
starvation of the
population, property
confiscation,
pillaging, illegal and
self-willed
destruction and
stealing on large
scale of a property
that is not justified by
military needs, taking
an illegal and
disproportionate
contribution or
requisition,
devaluation of
domestic currency or
the unlawful issuance
of currency
Forced Labor /
Property
Confiscation /
Requisitioning
(Article 173 (1) (f))

(f) Forced labor,
starvation of the
population, property
confiscation,
pillaging, illegal and
self-willed
destruction and
stealing on large scale
of property that is not
justified by military
needs, taking an
illegal and
disproportionate
contribution or
requisition,
devaluation of
domestic money or
the unlawful issuance
of money
Forced Labor /
Property
Confiscation /
Requisitioning
(Article 2 (d))

(d) Extensive
destruction and
appropriation of
property, not justified
by military necessity
and carried out
unlawfully and
wantonly
Forced Labor /
Property
Confiscation /
Requisitioning
(Article 8 (2)(iv))

(iv) Extensive
destruction and
appropriation of
property, not justified
by military necessity
and carried out
unlawfully and
wantonly
WAR CRIMES
(AGAINST
PRISONERS OF
WAR)
Enacting Clause
(Article 144)

Whoever, in violation
of the rules of
Enacting Clause
(Article 175 (1))

(1) Whoever, in
violation of the rules
Enacting Clause
(Article 2)

The International
Tribunal shall have
Enacting Clause
(Article 8 (1))

(1) The Court shall
have jurisdiction in
165
international law,
orders murders,
tortures or inhuman
treatment of prisoners
of war, including
therein:

of international law,
orders or perpetrates
in regard to prisoners
of war any of the
following acts:
the power to
prosecute persons
committing or
ordering to be
committed grave
breaches of the
Geneva Conventions
of 12 August 1949,
namely the following
acts against persons
or property protected
under the provisions
of the relevant
Geneva Convention:
respect of war crimes
in particular when
committed as part of
a plan or policy or as
part of a large-scale
commission of such
crimes
Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Article 144)

Biological
experiments

Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Article 175 (1) (a))

(a) Depriving another
persons of their life
(murders), intentional
infliction of severe
physical or mental
pain or suffering
upon persons
(tortures), inhuman
treatment, including
therein biological,
medical or other
scientific
experiments, taking
of tissue or organs for
the purpose of
transplantation
Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Articles 2 (a), (b)

(a) Willful killing

(b) Torture or
inhuman treatment,
including biological
experiments
Killing, Torture,
Inhumane
Treatment,
Biological /
Medical
Experimentation
(Article 8 (2)(a)(ii))

(ii) Torture or
inhuman treatment,
including biological
experiments

Suffering / Injury
(Article 144)

Causing of great
sufferings or serious
injury to the bodily
integrity or health
Suffering / Injury
(Article 175 (1)
(b))

(b) Causing of great
suffering or serious
injury to bodily
integrity or health
Suffering / Injury
(Article 2 (c))

(c) Willfully causing
great suffering or
serious injury to body
or health
Suffering / Injury
(Article 8
(2)(a)(iii))

(iii) Willfully causing
great suffering, or
serious injury to body
or health
Compulsive
Enlistment in
Enemy Armed
Forces (Article
144)

Compulsive
enlistment into the
armed forces of an
enemy power or
deprivation of the
right to a fair and
impartial trial
Compulsive
Enlistment in
Enemy Armed
Forces (Article 175
(1) (c))

(c) Compulsive
enlistment into the
armed forces of an
enemy power, or
deprivation of the
right to a fair and
impartial trial
Compulsive
Enlistment in
Enemy Armed
Forces (Article 2
(e), (f))

(e) Compelling a
prisoner of war or a
civilian to serve in
the forces of a hostile
power

(f) Willfully
Compulsive
Enlistment in
Enemy Armed
Forces (Article 8
(2)(a)(v), 2(a)(vi))

(v) Compelling a
prisoner of war or
other protected
person to serve in
the forces of a hostile
Power

166

depriving a prisoner
of war or a civilian of
the rights of fair and
regular trial
(vi) Willfully
depriving a prisoner of
war or other protected
person of the rights of
fair and regular trial

---------------------------------------------------------------------------------------------------------------------

167
APPENDIX V: Examples of Witness Testimony Collected and Proofed into the
Dossier under the Inquisitorial Model Practiced in the former
Yugoslavia and (pre-2003) Bosnia-Herzegovina

Source: ZAGORKA SIMIĆ-JEKIĆ (ED.), PRAKTIKUM ZA KRIVIČNO PROCESNO PRAVO
111-114 (Novinsko-izdavačka ustanova Službeni list SFRJ OOUR knjige
1980).

Translated into English from the original Serbo-Croatian by Rudy Baker

---------------------------------------------------------------------------------------------------------------------

RECORD ON WITNESSES’ HEARING

Made on March 20, 1977, at the request of the Investigative Judge of the County Court in
Belgrade, in the case against Matić, Miloš from Belgrade for the crime of attempted murder,
Article 47 of the Criminal Code of Serbia, in conjunction with Article 19 of the Criminal Code
of the SFRJ.

Present parties:

Investigative Judge
V.S.
Court Reporter Witness,
M.P. Marković, Tomislav

Also present:
Public Prosecutor
Defense Counsel Marko Šibalić
The Accused

Commencement: 9:30

The witness was instructed that he has the duty to tell the truth, that he must not withhold any
information, and then he was warned about the consequences of giving false testimony, and
about his right not to answer certain questions, if there is danger that he might expose himself or
his close family to significant amount of shame, considerable amount of damage or if he would
incriminate himself or a member of his close family (Article 227, paragraph 1 through 3,
Criminal Procedure Code).

To the following questions the witness gave the following answers:

1. Last name, first name: Marković, Tomislav
2. Father’s name: Radovan
3. Occupation: Worker
4. Place of residence: Vrčin, 8 Volgina Street
168
5. Place of birth: Vrčin
6. Age: Born in 1938
7. Relationship with the accused and the injured party: The injured party is a distant family
member, not related to the accused

The witness then testified to the following:

Marković, Tomislav

On March 7, 1977, I came back home from work around 15.00, and then at 17.30 I got to a store
in Vrčin to get something for my house. At that time there were several locals at the store, and
Radomir Nikolić was among them. He was in the company of several other locals. I could see
they were drinking wine and beer.

Around 18.00 the store was supposed to be closed, and we were all supposed to leave. As we
were leaving, that is, we were still in the store, an argument started between Miloš Matić and
Radomir Nikolić. I could hear that Radomir Nikolić was asking Miloš Matić if he wanted to
fight, and if Miloš was going in the same direction --- towards Radomir’s home. Since I work for
the company that owns this store, I wanted to prevent them from fighting, so I grabbed Radomir
Nikolić by his shoulder and told him to get out and not to have a fight, and he listened to me.
While we were leaving, as I was going down the stairs outside of the store, I could see Miloš
Matić hit Radomir Nikolić in the chin with his fist, so he fell to the ground on his back. At that
point Živomir Bošković went to Radomir and picked him up, while Miloš Matić went with
Đorđe Pešić in the direction of Radomir Nikolić’s home. Why he went this way I do not know.
Incidentally, he was supposed to take the right turn form the store, which is the way to his home.

As soon as Radomir Nikolić got off the ground with Živomir Bošković’s help, he headed in the
same direction where Đorđe Pešić and Miloš Matić had gone, and around 10 meters from the
store there was another fight between the two of them. They were punching each other, and
Radomir almost fell to the ground several times. Then I could see Miloš Matić trying to reach
something, possibly the knife hanging from his belt on his right side, and Živomir Bošković and
I could see this. I yelled to both of them to stop fighting, but they did not listen. Later, as Miloš
was trying to reach something on the right side, that is, as he was trying to open his coat at the
right side, I could see that he was holding a knife in his right hand, and that he was trying to get
Radomir, but I could not tell if he managed to do this, because Radomir did not show any
reaction. After he had pulled his knife at Radomir, Radomir fell to the ground, and Miloš was
kicking him. Radomir had fell facing the ground. Seeing Miloš kicking Radomir, who was on the
ground, I went to them, grabbed Miloš and pushed him away from Radomir, to which he did not
object, so I begged him to leave Radomir alone, and not to beat him. He actually listened to me
and went in the direction of his home.

Radomir Nikolić got up from the ground and went with me in the direction of his home, but he
did not tell me straight away that he was injured. Živomir Bošković joined us on our way. At one
point Radomir moved away from us, a step or two away, and sat down. Bošković tried to pick
Radomir up, and when he could not, he called me to come back. Radomir did not want to get up,
and he just said: “He stabbed me to the heart!” At this point I lit a match, Bošković unbuttoned
169
Radomir and we could see the blood on his belly under the ribs. We immediately got a car, and
got him to surgery.

Both Miloš Matić and Radomir Nikolić were inebriated that night. I heard stories about them
arguing and fighting in the past, but I was not present when that happened.

The witness answered the Defense Counsel’s question, saying that he had seen a knife in the
accused’s hand, but that he was not able to describe what kind of a knife it was. Radomir had
gotten up after the fight, walked in the direction of his home for around 50 meters, and then we
could see that he had been stabbed, although he did not say that.

That is all I have to say.

The present parties were acquainted with the Article 82 of the Criminal Procedure Code, so they
stated that they did not wish for the record to be read to them, since they could hear the witness’s
account of the event to the investigative judge, and they will sign the record.

End: 10.20.

Marković, Tomislav

Court Reporter Investigative Judge
T.M. V.S.

RECORD ON WITNESS’S HEARING

Made on March 20, 1977, by the request of the investigative judge of the County Court in
Belgrade, in the case against Matić, Miloš from Belgrade for the crime of attempted murder,
Article 47 of the Criminal Code of Serbia, in conjunction with Article 19 of the Criminal Code of
the SFRJ.

Present parties:

Investigative Judge
V.S.
Court Reporter Witness / Injured Party
M.P. Nikolić, Radomir

Also present:
Public Prosecutor
Defense Counsel
The Accused

Commencement: 10:30

170
The witness was instructed that he has the duty to tell the truth, that he must not withhold any
information. He was also warned about the consequences of giving false testimony, and about his
right not to answer certain questions, if there is danger that he might expose himself or his close
family to significant amount of shame, considerable amount of damages or if he would
incriminate himself or a member of his close family (Article 227, paragraph 1 thru 3, Criminal
Procedure Code).

To the following questions the witness gave the following answers:

1. Last name, first name: Nikolić, Radomir
2. Father’s name: Ratomir
3. Occupation: Carpenter
4. Place of residence: Vrčin, 2 Topolska Street
5. Place of birth: Vrčin
6. Age: Born in 1934
7. Relationship with the accused and the injured party: None (injured party)

The witness then testified to the following:

Nikolić, Radomir

I had no problems with Miloš Matić from Vrčin until I was called to testify before the magistrate
in SO Voždovac, because I witnessed Matić fire a gun from his car in front of the Two Pigeons
Tavern in Trešnja. This was four months before the fight in Vrčin occurred. I told the magistrate
exactly what I had seen, and Matić was angry at me because of the testimony and this is why
there is bad blood between him and I.

On the day Matić attacked me and injured me I had gone to the store in Vrčin to get some
cigarettes. Since the store was getting closed at 18.00, all of us who were inside had to go outside
of the store. Matić and I were going downstairs, and he was on my left side. As we got to the
concrete surface at the bottom of the stairs, Matić punched me in the face with his right hand,
which is why I fell to the ground. Živomir Bošković ran to me and helped me get up. I was on
the way to my house, but Matić was waiting for me at the corner of the store where he attacked
me, he was the first to attack me, so I had to defend myself, which is why we were punching
each other. At some point he moved back a meter or two, then came at me again and waved his
knife. Since I could see that he was going to get me, I blocked the blow with my left hand, so he
cut me between my little and ring fingers, and then stabbed me in the left side of my chest and
hurt my spleen. I fell to the ground due to this blow. The following people were present when
this happened: Tomislav Marković and Živomir Bošković. Whether the witnesses saw Matić
stabbing me I do not know, but they must have seen us fighting, because this was in the near
proximity, even though there was not light. It was dark.

Because I was injured, my nephews Dragomir Nikolić and Ljubomir Nikolić took me to the
surgery in Belgrade, where I stayed for a month because of the injuries. Dr. Popović was treating
me. In the meantime I caught smallpox, so I was held for almost one month. I was finally
released from the hospital on April 29, 1977.
171

I support the criminal procedure against Miloš Matić for an attempted murder and I seek
compensation, the amount of which I will specify at the main hearing.

This is all I have to say.

I heard what was entered in the record, I acknowledge what was said and offer my signature.

End: 11.15.

Nikolić, Radomir

Court Reporter Investigative Judge
T.M. V.S.

---------------------------------------------------------------------------------------------------------------------

172
APPENDIX VI: Example of Investigation Report Collected and Proofed into the
Dossier under the Inquisitorial Model Practiced in the former
Yugoslavia and (pre-2003) Bosnia-Herzegovina

Source: ĐORĐE LAZIN & STANKO BEJATOVIĆ (EDS.), PRAKTIKUM ZA KRIVIČNO
PROCESNO PRAVO 193-195 (Naučna knjiga 1988).

Translated into English from the original Serbo-Croatian by Rudy Baker

---------------------------------------------------------------------------------------------------------------------
Kr. 287/77

RECORD

of investigation made by the Investigative Judge of the Municipal Court in Titovo Užice on July
12, 1977, regarding the traffic accident which happened in Uzići, on the road between Titovo
Užice and Požega.

Present parties

Investigative Judge, SUP Inspector
V.M. R.I.
Record Keeper Crime Scene Technician
S.C. N.M.

Commencement: 17:30

The Emergency Service of the Inter-municipal Secretariat for Internal Affairs in Titovo Užice
informed the Investigative Judge of the Municipal Court in Titovo Užice that a traffic accident
had happened at 17:15 in the village of Uzići, on the road between Titovo Užice and Požega, and
that several people were injured.

The Investigative Judge immediately responded to the crime scene for further investigation.

Several internal affairs officers were already at the crime scene, securing it.

Participants in the traffic accident were Zastava 101, license plate: TU/147-50, which was
operated by a “B” category driver R.Z., driver’s license no. 9425 issued by SUP SO Titovo
Užice on November 11, 1969, Renault 4, license plate: ČA 248-17, which was operated by a “B”
category driver M.J., driver’s license no. 4850, issued by SUP Čačak on May 12, 1974, and a
cart, operated by R.J., a farmer from Užice.

Description of crime scene:

The traffic accident occurred in the village of Uzići, on the road between Titovo Užice and
Požega, 153 meters from the kilometer post no. 27. The road is 9 meters wide, covered with
173
asphalt of good quality, flat and clear in length of 320 meters. In the middle of the road there is a
white interrupted line. On the sides of the road there are shoulders the width of 70 cm. There are
no speed limit signs in this part of the road, nor any other prohibitory signs, mandatory or
indication signs.

The weather is cloudy and gloomy, and the asphalt is wet and partially covered with dirt from the
fields on both sides of the road out of which carts can enter the road.

According to the statements of the internal affairs officers, R. M. and R.R., as well as others who
were there at the time of the accident, there was a drizzle when the accident happened.

On the right side of the road, in the direction of Požega, there was a cart with license plate no.
2850 SO Titovo Užice, with the oxen unharnessed. The cart was loaded with hay, which was
partially dispersed on the right side of the lane, in the length of 12 meters. The cart was sloping
to the left, towards the center line, its front part being only 10 cm away from the line, and the
rear end 56 cm. Judging from the edge of the right lane, the front of the cart was 2.90 m away
from it, and the rear end 2.44 m. 22.60 m away from the rear end of the cart, traces of its
movement in the muddy and wet road can be seen. The traces appear in the field of R. J., the
owner of the cart, on the right side of the road, and spread towards the center line in a semi-
circle, for another 23.60 m.

Zastava 101 and Renault 4 are positioned 17.80 m in front of the cart, at the left side of the lane,
in the direction of Požega. Zastava 101 is turned in the direction of Požega, and its frontal part is
1.25 m away from the center line, whereas rear wheels are 0.78 m from the center line. The skid
marks of this vehicle start on the right side of the road, 5.70 m behind the cart, and slightly curve
towards the left lane, ending at 17.80 m in front of the cart. At the beginning the marks were of
medium intensity in the length of 4.30 m, and then of high intensity, curving to the left in the
length of 19.20 m, which is the place of impact with Renault 4, which was moving in the
opposite direction.

Renault 4 is positioned in the direction Titovo Užice. Its frontal part is out on the shoulder, and
its rear wheels are 0.38 cm away from the left edge of the road, judging from the direction of
Požega. Skid marks made by this vehicle start 67 m away from the place where the impact with
Zastava 101 had occurred. The traces are visible, first of low intensity in the length of 12 m,
medium intensity in the length of 18 m, and high intensity in the length of 37 m. The marks
curve from the center of the left lane towards the right side of the lane in the direction of the
vehicle’s movement (to Titovo Užice). 7.5 m from the point of impact, in the direction of Titovo
Užice, the vehicle turned and stopped at the right shoulder.

Blood traces can be seen at the point of impact, as well as inside of Zastava 101. In the area of 3
m
2
there are pieces of glass, Zastava 101 headlight rims, and the Renault 4 side batten.

Damage on the cars:

All the vehicles involved in the accident are significantly damaged. The rear end of the cart is
damaged on the left side, where some of the boards are sticking out, and are partially damaged.
174
There are traces of the Zastava 101 paint on the boards. The damage on Zastava 101 comprises
broken headlights, significant damage to the right fender, and in the front area the car is
completely deformed, its cooler indented and the engine moved towards the inner part. Front
windshield is broken, the steering wheel bent to the right, and the left door deformed. Renault 4
is indented in the front, the left headlight is broken, and the hood is out of its frame. The
windshield is broken, the left bender leaning on the left wheel, which cannot move.

Injured parties:

Both drivers have suffered light injuries and did not ask for a doctor.

The passenger from Zastava 101, M.A., who was, according to the driver, sitting in the front
passenger’s seat, was severely injured and taken to hospital in Titovo Užice.

Passengers in Renault 4 D.J. and J.J. are not injured.

Other notes:

The crime scene was photographed and sketched by the crime scene technician N.M. Photo-
documentation and the sketches of the crime scene are a part of this record.

The drivers of the vehicles do not show any signs of intoxication, whereas in the cart driver R.J.
these signs are clearly there. An order was issued to take blood from the cart driver to determine
whether there is any intoxication and to which degree.

The vehicles are to be taken to the car shop “Raketa” to estimate their technical condition.

D.Z., B.A., D.M., and A.M. were also present at the crime scene, and they can offer information
about the accident.

The investigation ended at 18:30.

Record Keeper Investigative Judge
S.Č. V.M.

---------------------------------------------------------------------------------------------------------------------

175
APPENDIX VII: Example of Written Judgment under the Inquisitorial Model
Practiced in the former Yugoslavia and (pre-2003) Bosnia-
Herzegovina (Dismissal of Charges)

Source: ĐORĐE LAZIN & STANKO BEJATOVIĆ (EDS.), PRAKTIKUM ZA KRIVIČNO
PROCESNO PRAVO 219-220 (Naučna knjiga 1988).

Translated into English from the original Serbo-Croatian by Rudy Baker

---------------------------------------------------------------------------------------------------------------------
K. 48/7

IN THE NAME OF THE PEOPLE

The Panel of the Municipal Court in Aleksinac, composed of Judge T.M., as the President, and
Lay Judges R.I. and S.S., as members, with Z.N. as the court reporter, in the criminal case
against D.D., charged with violent behavior, Article 220(1) of the Criminal Code of Serbia,
acting upon the recommendation of the Municipal Public Prosecutor of Aleksinac, KT. 126/77,
issued on July 2, 1977, and after public hearing in the presence of the Deputy Public Prosecutor
N.T. and the Accused, issued on September 7, 1977, the following

JUDGMENT

That in the case against the accused D.D. aka Dal, father V. and mother S. née M., born on
August 23, 1955 in Aleksinac, where he is living now, Serb, SFRJ national, unemployed
carpenter, unmarried, literate, graduated from elementary school, no prior convictions,

CHARGES ARE DISMISSED

regarding the accusation that on January 24, 1977 in a public place in front of the store “Zora”
in Aleksinac, the accused disturbed the peace of Lj.S. and M.R. and V.B. with his reckless
behavior, that is, by throwing icy snow balls at them, for which reason they had to run inside the
store, and when the witness N.M. warned the accused of the behavior, he cursed his mother.
Insight into the accused’s past shows that he is prone to act in this manner, and since he already
has several misdemeanors, he meets the conditions for the crime of violent behavior, Article 220,
paragraph 1, Criminal Code of Serbia;

Due to the fact that the Public Prosecutor dropped all charges at the main hearing, the cost of the
proceedings will be reimbursed from within the budget.

EXPLANATION

In his recommendation, KT. 126/77, issued on July 2, 1977, the Public Prosecutor of Aleksinac,
charged D.D. from Aleksinac for the crime of violent behavior, Article 220, paragraph 1,
Criminal Code of Serbia. At the main hearing held on September 7, 1977, after evidence
176
submission, the representative of the Municipal Public Prosecutor stated that he was dropping the
charges against the accused.

The injured parties who attended the hearing stated that they did not wish to pursue the matter
any further, and that they had come to peace with the accused. Since the Public Prosecutor
dropped the charges during the main hearing, based on Article 349, paragraph 1, section 3 of the
Criminal Procedure Code, the Court has reached the judgment as stated above. Pursuant to
Article 99, paragraph 1 of the Criminal Procedure Code, the cost of the proceedings will be
reimbursed from within the budget.

Municipal Court in Aleksinac
September 7, 1977, K. 48/77

Court reporter: Panel President:
Z.N. T.M.

Legal notice: Within 15 days of receipt the parties can submit the appeal to the judgment through
this court to the County Court in Niš.

---------------------------------------------------------------------------------------------------------------------

177
APPENDIX VIII: Example of Written Judgment under the Inquisitorial Model
Practiced in the former Yugoslavia and (pre-2003) Bosnia-
Herzegovina (Acquittal)

Source: ĐORĐE LAZIN & STANKO BEJATOVIĆ (EDS.), PRAKTIKUM ZA KRIVIČNO
PROCESNO PRAVO 220-222 (Naučna knjiga 1988).

Translated into English from the original Serbo-Croatian by Rudy Baker

---------------------------------------------------------------------------------------------------------------------

K. 377/77

IN THE NAME OF THE PEOPLE

The Panel of the Second Municipal Court in Belgrade composed of Judge Lj.K., as the President, and
Lay Judges G.F. and D.J., as members, with J.B. as the court reporter, in the matter of the aggravated
case of crime against the safety of public traffic, Art. 201, paragraph 5, in conjunction with Article
195, paragraph 3, Criminal Code of Serbia, acting upon the Indictment of the Public Prosecutor P.Z.,
in the presence of Deputy Public Prosecutor, P.Z., and the Accused and his Defense Council M.M.,
on Sept. 17, 1977, has reached the following

JUDGMENT

The accused T.N., son of Nj. and mother P., née S., born on May 19, 1932 in Belanovica, living in
Belgrade, 7 Kraljevića Marka Street, Serbia, SFRJ national, driver, literate, graduated from
elementary school, married, father of two minors, completed military service, no prior convictions,

Pursuant to Article 350, par. 1, sec. 3 of the Criminal Procedure Code

IS ACQUITTED

of the charges that on May 9, 1976, while operating the tram in Borisa Kidriča Street, turning from
Slavija in the direction of Law School, endangered public transport, and brought in danger the lives
of people, by not adjusting the speed in accordance with the circumstances of the traffic, nor paying
attention to the pedestrians at the marked crossing at the intersection with Proleterskih Brigada
Street, which resulted in his running over a pedestrian N.V. on a marked crossing.

The injured party who was critically injured died ten days after, all of which constitutes sufficient
conditions for the aggravated case of crime against the safety of public traffic under Article 201,
paragraph 5, in conjunction with Article 195, paragraph 3, of the Criminal Code of Serbia.

The cost of the criminal proceedings will be covered from within the budget.

The injured parties are instructed that they may take civil action to pursue their claims under property
law.

EXPLANATION
178

In the Indictment of the Municipal Public Prosecutor KT. 237/77, issued on July 5, 1977, T.N. from
Belgrade is charged for aggravated case of crime act against the safety of public transport, Article
201, paragraph 5, in conjunction with Article 195, paragraph 3, of the Criminal Code of Serbia. The
Public Prosecutor persisted in keeping the indictment until the end of the main hearing.

The accused denied all accusations. In his defense he said that on October 9, 1976, he was operating
tram no. 2 from Slavija in the direction of Law School. As he was getting closer to the pedestrian
crossing at the intersection of Boris Kidriča and Proleterskih Brigada Streets, he could see clearly
that none of the pedestrians were crossing the street, because a heavy vehicle of the Mercedes brand
was coming from the opposite direction, signaling the intention to turn to Proleterskih Brigada Street.
Since there were no pedestrians at the crossing, there was no need to stop the tram, only to slow it
down, so the vehicle that was cutting across could pass. After the truck had passed the pedestrian
crossing, and after the tram driver could see the rear end of the truck getting off of the tracks, a
pedestrian appeared five meters ahead, recklessly trying to cross the street behind the truck, outside
of the pedestrian crossing. The accused tried to brake, but could not avoid running over the
pedestrian. The pedestrian died after short hospital treatment. The accused is asking the Court to drop
all charges, because the accident happened exclusively due to the pedestrian’s fault.

The Court has taken evidence from the hearing of the witnesses S.I., M.D., Z.R. and S.S., from
expert evaluation conducted by the expert witness S.N., the record from the crime scene together
with photo-technical documentation, the record on the autopsy of the late N.V., and the record from
the recreation of the accident.

Upon evaluating the evidence, the Court finds that there is not enough evidence that the accused had
committed the crime for which he is charged.

The evidence shows that the pedestrian was not run over at the crossing, but seven meters away from
it, in the direction of Law School. The witnesses confirmed that the pedestrian was run over seven
meters away from the crossing, right after the heavy vehicle had made a turn to the Proleterskih
Brigada Street. This supports the claims by the accused that the pedestrian was not crossing the street
at the pedestrian crossing, but that he had suddenly appeared behind at the truck which was cutting
across the tram, trying to turn to Proleterskih Brigada Street. The witnesses are not related, and they
are unbiased, so there is no reason not to believe their testimonies. Considering the accused’s
defense, as well as the statements by the witnesses, the Court cannot accept the testimony by the
witness Z.R., who said that the pedestrian was crossing the street at the crossing. This witness was
walking along Proleterskih Brigada Street, and he was watching the event fifteen meters away, so, to
his own admission, he could have made a mistake as to where exactly the pedestrian was crossing the
street. Besides, the statement of this witness is in contradiction to the information from the record
from the crime scene, namely that the injured party’s bag was found 8.70 meters away from the
crossing. This is why the Court could not accept this witness’s statement, which was contrary to all
other evidence.

The Court accepted the accused’s defense that the pedestrian appeared all of a sudden, right behind
the rear end of the heavy vehicle, at the moment when the operator could not see this coming, so he
was not able to stop the tram. His defense is in accordance with the testimonies from S.I., M.D., Z.R.
and S.S., and there is no other evidence that places his defense into doubt.

179
According to the findings and the opinion of the expert witness S.N., the tram’s velocity was 28
km/hour. If we accept the accused’s claim that the pedestrian appeared 5 meters in front of the tram,
the operator could not have stopped the vehicle at this distance, since the tram would have needed
13.5 meters to stop at the speed of 28 km/h.

The Court accepts the expert witness’s findings since they are logical, clear and richly elaborated.

Taking into consideration that there were no pedestrians at the crossing, the velocity of 28 km/h, in
Court’s opinion, is not unadjusted to the circumstances of the traffic, which is what the accused is
charged with by the Public Prosecutor’s indictment.

The pedestrian N.V. recklessly and suddenly tried to cross the street outside of the crossing, so the
harmful consequences that ensued are to be attributed solely to him.

Since he unexpectedly and suddenly stepped onto the tracks, blocked by the vehicle which was
turning to Proleterskih Brigada Street, the accused could not see this sudden obstacle coming, nor
could he take action to avoid running him down.

Since it could not be proven that the accused was guilty of endangering public transport and
producing harmful consequences, the Court acquits the accused of all charges, based on Article 350,
paragraph 1, section 3 of the Criminal Procedure Code.

Based on Article 99, paragraph 1, section. 3 of the Criminal Procedure Code, the cost of the criminal
proceedings will be covered from within the budget.

The decision on the financial claim was made based on Article 108, paragraph 3 of the Criminal
Procedure Code.

Second Municipal Court in Belgrade,
September 17, 1977, K. 377/77

Court reporter Panel President
J.D. Lj.K.

Legal notice: Within 15 days of receipt the parties can submit the appeal to the judgment through this
court to the County Court of Belgrade.

---------------------------------------------------------------------------------------------------------------------

180
APPENDIX IX: Example of Written Judgment under the Inquisitorial Model
Practiced in the former Yugoslavia and (pre-2003) Bosnia-
Herzegovina (Conviction)

Source: ĐORĐE LAZIN & STANKO BEJATOVIĆ (EDS.), PRAKTIKUM ZA KRIVIČNO
PROCESNO PRAVO 222-226 (Naučna knjiga 1988).

Translated into English from the original Serbo-Croatian by Rudy Baker

---------------------------------------------------------------------------------------------------------------------

K. 616/77

IN THE NAME OF THE PEOPLE

The Panel of the County Court in Titovo Užice, composed of Judge P.J., as the President, Judge
D.P., and Lay Judges M.Z. and S.T. and M.V., as members, with N.M. as the court reporter, in
the case against M.U. from Titovo Užice, for the crime of murder, Article 47, paragraph 1, of the
Criminal Code of Serbia, acting upon the Indictment of the County Public Prosecutor in Titovo
Užice Kt. 361/76, issued on July 8, 1977, in the presence of the Public Prosecutor’s Deputy,
R.R., the Accused M.U. and his Defense Council V.B., has made the following

JUDGMENT

The accused M.U. from Titovo Užice, living in 4 Strahinjića Bana Street, born on December 17,
1947 in Pilica, municipality of Bajina Bašta, father R. and mother M., née V., Serb, SFRJ
national, literate, married, father of one, with monthly income of 4900 dinars, graduated from
technical secondary school, in 1973 completed military service, stationed at VE SO Titovo
Užice, no prior convictions, in detention since October 1, 1976

IS FOUND GUILTY

because on October 1, 1976, around 10.30 in Titovo Užice, in front of the Insurance Company
“Dunav,” he had taken the life of his wife, D.U. by stabbing her four times with a 12-centimeter
blade: in the right part of the neck, cutting the artery, in the area around the right breast, cutting
through the upper part of the right lung, adding two stab wounds on the back of the neck, through
the muscles of the neck, which led to internal and external bleeding, and her immediate death,

--- thus committing the crime of murder, Article 47, paragraph 1, of the Criminal Code of Serbia,
so the Court

SENTENCES HIM

to a 12-year prison sentence, crediting the time spent in custody, from October 1, 1976.

181
The accused is obliged to pay 4670 dinars for proceedings expenses, and the lump sum of 700
Dinars.

EXPLANATION

County Public Prosecutor in Titovo Užice charged the accused M.U. from Titovo Užice in the
Indictment Kt. 36/76, issued on October 29, 1976, of committing the crime of murder, Article
47, paragraph 1, of the Criminal Code of Serbia. The Deputy Public Prosecutor R.R stuck to the
original indictment till the end of the main hearing, and suggested that the accused be found
guilty of the crime and sentenced in accordance with the law.

The accused admits to taking the life of his wife D., now the deceased injured party, in the way
which was described in the dispositive of this judgment. The admission of the accused was
confirmed in the record from the crime scene (made on October 1, 1976), the record on the
autopsy of the late D., photo-technical documentation, the findings of the Bureau for
Criminalistic Techniques RSUP in Belgrade, and, partially, the testimonies of R.M., M.M., R.J.,
Lj.R., B.S. and M.B.

The defense is based on the claim that the accused did not plan the murder, but that he had
stabbed his wife only after she refused categorically to come back to their home, and after she
had said: “I don’t care about you or the child anymore.” The accused added that he had married
D. on May 5, 1973 after a short acquaintanceship, that marriage was fine for the first year, but
that it deteriorated because of the influence of the wife’s sister Lj., whom he blamed for the
deterioration, although he could not state specifically how the witness Lj. influenced her sister.
He admits to slapping D. on some occasions during arguments. She had left him for the first time
on August 6, 1975, but they had reconciled on his insistence. Another argument broke out on
February 7, 1976, because he had said that he did not need her sister Lj. Fifteen days later D. had
again left him, went away with her father and uncle, definitively refusing to continue to be
married to the accused, and filed for divorce. She did not want to see their child, which was at his
parents’ house.

Without disputing that a crime had been committed, the defense attorney argued that the criminal
act that the accused had committed was not the one he was charged for, but manslaughter,
Article 48, Criminal Code of Serbia. The defense argued that the injured party had severely
offended the accused by leaving him, and that had continued offending him by refusing to come
to peace with him, enraging him during their conversation at the Insurance Agency “Dunav,” by
stating that she is no longer interested in him or their child.

The Court acknowledges the defense’s argument that on October 1, 1976, in the building of the
Insurance Agency “Dunav,” after a short conversation with his wife D., the accused took out a
knife from his inner coat pocket, and took his wife’s life by stabbing her multiple times in the
neck area.

The admission of the accused was confirmed by objective evidence, as well as testimonies of the
witnesses R.M. and M.M., who had witnessed some of the events. The evidence is not
182
contradictory, so this part of the defense is in agreement with the rest of the evidence, and there
are no contradictions in the defense.

However, the part of the defense regarding the circumstances which led to the crime the Court
could not accept, since they are contradictory to the evidence introduced at the main hearing.

Since the accused admits to taking his wife’s life, the Court has evaluated his psychological
attitude towards the crime, and concluded that it was committed with prejudice. The Court has
reached this conclusion based on the set of evidence from the main hearing. It cannot be
contested that the accused stabbed the late D. forcefully in the neck area four times with the 12-
centimeter blade. Four strong stabs in the vital part of the body demonstrate resolution of the
accused to take D.’s life. Furthermore, the accused admits to buying the knife after D. had finally
left him, and that he had kept it in his pocket unsheathed, although the knife had a holster. From
this the Court concludes that the accused had come to the building of the Insurance Agency
“Dunav,” with prior intent to take his wife’s live if she had refused to come back. The Court
cannot accept the defense that the accused had gotten the knife to defend himself from D.’s
uncle, since this witness does not live in Titovo Užice, but in Smederevo, and none of the
evidence points to the conclusion that anyone had threatened the accused or had put him in
danger. From M.M.’s testimony, is was determined that the accused had said the following after
the crime: “I couldn’t take it anymore, and I did what I intended to do.” However, the witness
R.M. does not confirm that the accused had said this. Considering the stressfulness of such
situations, the Court finds that the witness may have not heard these words. That is why the
Court takes the witness M.M.’s testimony as truthful.

Other evidence points to the conclusion that the accused had committed this crime with
prejudice. From the beginning of 1976, the accused had threatened his wife D. that he would take
her life, for which reason she felt she was in danger. In the report to the Public Prosecutor’s
Office in Titovo Užice, on May 3, 1976, D. states that the accused had beaten her on April 27,
1976, inflicting severe injuries to her body, pulling a knife on her, and that she could barely
defend herself. In the second report from May 17, 1976, D. states that the accused had threatened
her using the following words: “I’ll cut you to pieces right in the middle of this street.” She
further states that the accused had disturbed her at her place of work, waited for her after work
hours, and threatened to kill her. The report from the Police Station from May 20, 1976 says that
the accused was brought in for hearing and that the authorized officers had concluded the
following: “There is justified fear that the threats will come true.”

The witness S.B., D.’s father, testifies that the accused had threatened D. and Lj., so he was
forced to wait for D. after work hours to protect her. The witness M.B., D.’s uncle, testified that
the accused had threatened D., which is why she complained to him that she was afraid to fall
asleep, fearing he would kill her. On one occasion, the accused had said in front of the uncle:
“You don’t need courts --- I’ll be the one who will pass judgment whether you live or die.” The
witness Lj. testified that D. at first denied that the accused was beating her, but that in 1976 she
admitted he was. She said he was harassing her, that he had pulled a knife on her, and that she
had asked her father and uncle to protect her. The witnesses R.J. and R.B. gave similar
testimonies.

183
The witnesses’ testimonies were evaluated as convincing and truthful, regardless of the fact that
S.B., Lj.B., and M.B. were close family members of D. These testimonies were confirmed by
written evidence and reports that D. had filed to Public Prosecutor’s Office.

Expert witness opinions, which were accepted fully by the Court, find M.V. to be sane. At the
time of the crime he was aware of what he was doing and he could control his actions. In the
Court’s opinion, the crime was committed with direct prejudice, and this conclusion can be
derived from all the mentioned evidence. Accordingly, all the elements of the crime of murder,
Article 47, paragraph 1, of the Criminal Code of Serbia, are in place, objective and subjective
alike.

Though the accused did not confirm this directly, the Court finds that he argued with D. often,
even though he could not explain why he did this, nor mention a single reason which would
justify such behavior. However, the witness Lj.B. testified convincingly in front of the Court that
the accused was jealous and that is why he was harassing D. D. had told her that the accused had
forbidden her to put on make-up. On one occasion, while they were waiting for the traffic light to
change in their car, the accused had said: “Why are you looking at that driver?” The witness
M.B. had also noticed that the accused was jealous. On another occasion, when D. told the
accused that she would leave him, at the price of leaving their child with him, he said, “Of
course, missy, you want to be alone and single.” All the evidence confirms that the murder was
motivated by the unfounded jealousy of the accused.

The Court had to evaluate the defense’s argument that the accused’s crime should be classified
as manslaughter, Article 48, Criminal Code of Serbia. This could not be accepted, since the
evidence shows otherwise. In order for the crime to be seen as manslaughter from the Article 48,
Criminal Code of Serbia, the accused had to have been severely enraged by an attack or serious
offensive action by the injured party. The evidence does not support that either of these elements
existed. D. did not attack the accused, nor did she severely offend him. All of the witnesses who
knew D. stated that she was an excellent worker and exemplary wife. The accused himself did
not deny this. The reason D. had left the accused was solely due to his fault, since he beat his
wife and harassed her without any reason. Therefore, leaving the accused, refusing to stay
married to him, saying that she was not interested in him nor their child cannot be considered
severe insults, which is the condition required by Article 48, Criminal Code of Serbia.

The accused was not enraged either, which is also required by Article 48, Criminal Code of
Serbia. The expert witness J.R.’s findings show that the accused was excited at the time of the
crime, but that he could control his emotions.

For all these reasons, the Court could not accept the argument of the defense, that the elements
from Article 48, Criminal Code of Serbia can be detected in the accused’s crime.

During deliberation of the sentence, the Court took into account the degree of criminal
responsibility of the accused, as stated in Article 41 of the Criminal Code of Serbia. Alleviating
circumstances are that the accused is a young man, a father of the child younger than 2, with no
prior convictions, and that he admitted committing this crime. The Court has also taken into
consideration that the accused has shown no signs of remorse, because he still believes that the
184
main person to blame is Lj.R., to whom he wishes to transfer the whole burden of guilt. The
Court believes that the sentence of 12 years is sufficient to achieve the purpose of punishment, as
stated in Article 33, Criminal Code of Serbia.

The accused is found guilty. During the procedure, in accordance with the price list, a total of
4670 dinars were spent: 2520 for the witnesses, 1170 for expert testimonies, 980 for travel
expenses of authorized personnel. Pursuant to Article 98, paragraph 1, of the Criminal Procedure
Code, the accused is required to cover these expenses, if he can afford it.

The Court obliges the accused to pay the lump sum of 700 dinars, taking into account the length
and complexity of the procedure, and the accused’s financial abilities, in accordance with the
Article 95, paragraph 3, of the Criminal Procedure Code.

Since the accused is in custody, the Court decided, based on Article 351, paragraph 1, sec. 6, of
the Criminal Procedure Code, to deduct from the sentence the time spent in custody.

The accused did not have any financial claims, so the Court did not rule on any.

County Court in Titovo Užice,
July 8, 1977, K. 616/77

Court reporter, Panel President
N.M. P.J.

Legal notice: Within 15 days of receipt the parties can submit the appeal to the judgment through
this court to the Supreme Court of Serbia.

---------------------------------------------------------------------------------------------------------------------

185
APPENDIX X: Example of Indictment Broken Down into Component Parts (aka “Indictment Flowchart”) under the
Accusatorial Model Practiced in (post-2003) Bosnia-Herzegovina

Source: Provided by Patricia Whalen (International Judge, State Court of Bosnia-Herzegovina)

* Note that, in the interest of brevity, only the breakdown of the 1st count (of a 3 count indictment) is excerpted
here.

------------------------------------------------------------------------------------------------------------------------------------------------------------------

DRAFT EXAMPLE

Breakdown of Facts Alleged in the Amended Indictment

Preamble

Facts Alleged in the Indictment
Witnesses, est. facts, Motion 13 transcripts and
statements, Trbic statements
1.
□ Between 10 July and 30 November 1995,

The Panel decided there is enough evidence to support.
UČT 2- 13 Dec 2007 Decision
PW 162
Rutten Johanes
2.
□ during a widespread and systematic attack against the members of the Bosniak people in
the UN Protected Area of Srebrenica (Srebrenica enclave)

The Panel decided there is enough evidence to support.
UČT 3,4,5,20,21,27- 31 Dec 2007 Decision
Lazar Ristić (11 December 2007 main trial
hearing)
Mirsada Malagić, Mevludin Orić,
A-16 (29 Jan 2008 main trial hearing);
Joseph Kingori (8 Sept 2008 main trial hearing)
T-869 (UNMO Report)
A-46 – (23 Feb 09 main trial hearing)
PW 7 (12 Sept 06 Popović transcript); Military
186
Police officer
PW 8 (12 Sept 06 Popović transcript)
PW 9 (12 Sept 06 Popović transcript)
A-3 (15.16.1106 Popović)
A-27 Kravica Trial transcript
A-25 Kravica Trial transcript dated 7 March 07
Piter Boering(transcript)- testified about the
overall situation in Srebrenica before the attack;
movement of population, Fontana meetings,
arrangement of buses

Robert Franken – Dutch Major, Krstić Case
Transcript
A-30 - Dutch Battalion member
A-29 – testified about the attack on enclave and
fleeing the town
A-28 –fleeing Srebrenica
A-15 – Dutch Battalion member
T-161, T-162, T-183, T-184 (pg. 3), T-185 (p.4),
T-186 (p.3), T-187 (p. 3), T-189, T-190, T-218, T-
220, T-221, T-222, T-223, T-225, T-226
Pandurević transcript 29.01.09 (T 30839-30852)
03.02.09 T 31062, 31063, 12.02.09 T31332 and
26.02.09 T32137-32138
3.
□ in furtherance of a state and organizational policy,

4.
□ wherein the VRS and RS MUP conducted an operation to permanently and forcibly
transfer from the UN Protected Area of Srebrenica (Srebrenica enclave) the entire
Bosniak civilian population;

187

5.
□ an operation to capture, detain, summarily execute and bury all the able-bodied Bosniak
men and boys from Srebrenica enclave;

6.
□ and an operation to conceal the evidence of the executions where the victims’ remains
were exhumed from the initial (primary) mass graves and reburied in unmarked
(secondary) graves:

7.
□ wherein during 12 and 13 July 1995, the entire Bosniak civilian population of up to
40,000 Bosniak civilians were forcibly removed from Srebrenica enclave

8.
□ and between 12 July and 30 November 1995, over 7,000 Bosniak men and boys were
summarily executed, buried, exhumed and reburied including 3,737 identified persons
as listed in a separate Annex A that forms an integral part of this indictment;

9.
□ MILORAD TRBIĆ, as a Reserve Captain in the VRS, Security Officer (Referent) in
the Organ for Security and Intelligence Affairs in Zvornik Brigade, VRS perpetrated the
following:

Count 1.

Facts Alleged in the Indictment
Witnesses, est. facts, Motion 13 transcripts
and statements, Trbic statements
10.
□ Between 11 and 13 July 1995, MILORAD TRBIĆ participated in a joint criminal enterprise
with others in the VRS and RS MUP including General Ratko Mladić, Colonel Ljubiša Beara,

188
and Captain 1
st
Class Momir Nikolić,

11.
□ with the common purpose and plan to forcibly remove the entire Bosniak civilian population
from Srebrenica enclave and transport them to areas under the control of the Army of BiH
(ABiH),

12.
□ whereupon, from the afternoon of 12 July 1995 and continuing throughout the entire day of 13
July 1995, in the presence of Ratko MLADIĆ, Radislav KRSTIĆ, Vujadin POPOVIĆ and
others, over 25,000 Bosniak women, children and elderly men were loaded on buses and
trucks and transported by the Bosnian Serb forces from Potočari to the confrontation line near
Kladanj,

13.
□ where they were released and walked approximately 5 kilometers to BiH Army-held lines
outside Kladanj
1
during which, as the Bosniak men, women and children started to board the
buses and trucks, VRS and RS MUP forces separated over 1,000 able-bodied Bosniak men
from the women and children

14.
□ and transported these Bosniak men to temporary detention sites in Bratunac,

15.
□ so that by the end of 13 July 1995, the entire Bosniak civilian population had been removed
from the Srebrenica enclave;
2

16.
□ on 13 July 1995, approximately 5,000 to 6,000 Bosniak men from a column

of men trying to
escape from the Srebrenica enclave to Army of BiH held territory were attacked by VRS and

1
Previously 1.b.
2
Previously 1.c.
189
RS MUP forces by shelling and ambushes,

17.
□ and were then captured by or surrendered to MUP and VRS forces stationed along the Bratunac-
Konjević Polje-Milići Road in the areas of Kravica, Sandići, Konjević Polje
3

18.
□ and the majority of those captured were moved by vehicles to further temporary detention
facilities in and around Bratunac;

19.
□ and during the period 12 July to 16 July 1995: Bosniak men detained in Potočari, along the
Bratunac-Konjević Polje road and Bratunac were not provided with food or medical treatment,
nor with any meaningful rations of water;

20.
□ during their detention they were frequently beaten by their captors
4
and VRS and MUP
soldiers confiscated and destroyed personal property and effects belonging to Bosniak men
detained by them including their identification documents and valuables;
5

21.
□ wherein MILORAD TRBIĆ, sharing a common intention with others in the joint criminal
enterprise to fulfil the aims of the common purpose and plan,

22.
□ and intending that his acts would assist and contribute to it,

23.
□ perpetrated the following acts:

3
Previously 1.d.
4
Previously 1.f.
5
Previously 1.e.
190
24.
□ on 12 July 1995, acting jointly with and supervising other VRS soldiers, carried out a search
for Bosniaks in Srebrenica enclave to ensure that the enclave would be cleared of Bosniaks

25.
□ and, while doing so, captured and detained up to 15 (fifteen) civilian Bosniak males on the
road between Srebrenica and Potočari;
6

26.
□ sometime between the evening of 12 and midday on 13 July 1995, acting on the directions of
Colonel Ljubiša BEARA, selected and located school buildings in
□ Orahovac (Grbavci School),
□ Petkovci and
□ Ročević
□ to be used as temporary detention facilities to hold civilian Bosniak men from Srebrenica
enclave

27.
□ knowing that these civilian Bosniak men would be those captured by VRS soldiers and those
who were separated at Potočari and transported away from Srebrenica enclave;
7

28.
□ and on 13 July 1995 at Potočari, acting jointly with others from the VRS and RS MUP,
intimidated, mistreated and threatened Bosniak civilian population to leave the enclave
8
by
□ separating and maintaining the segregation of civilian Bosniak men from their families,

6
Previous 2.a. in part.
7
Previously 2.c.
8
Previously 1.a.
191
□ and by maintaining the Bosniak civilian population in inhumane conditions in Potočari where
there was insufficient and inadequate shelter, food, water and medical supplies by taking no
action to alleviate these conditions
□ and accepting and intending it be continued, so that the Bosniak civilian population exercised
no free choice but to leave when loaded onto buses and trucks and escorted away from
Srebrenica enclave by VRS and MUP forces.
9

------------------------------------------------------------------------------------------------------------------------------------------------

9
Previously 1.g.

192
APPENDIX XI: Example of an Outline to a Written Judgment under the
Accusatorial Model Practiced in (post-2003) Bosnia-
Herzegovina

Source: Provided by Patricia Whalen (International Judge, State Court of
Bosnia-Herzegovina)

------------------------------------------------------------------------------------------------------------

DRAFT EXAMPLE
Outline of Trbić Verdict

VERDICT

Primary Draft
Responsibility
I) Introduction
a. Referral of ICTY Cases

II) Procedural History
A. Evidence Presented
1. Prosecutor’s Office of BiH witnesses and
expert witnesses
2. Defense witnesses and expert witnesses
3. Closing arguments of the Prosecutor’s Office of BiH
4. Closing arguments of the Defense Counsel for the
Accused
5. Closing arguments of the Accused Milorad Trbic
B. Procedural Decisions (Due to volume, reference will be
made in this section that procedural decisions and list of
evidence will be incorporated in the annex attached to the
verdict.)

III) General consideration regarding evaluation of evidence
a. Scope of the evidence
b. Burden of proof
c. Testimony of vive voce witnesses
d. Evidence beyond reasonable doubt through circumstantial
evidence
e. Protected witnesses
f. Volume of evidence

193
IV) Statements of Milorad Trbić
a. Criminal Code of SFRY
b. Criminal Procedure Code of BiH

V) Summary of Law
a. Applicable Law
b. Law of Genocide
1. Elements of the Crime
2. Proof of Genocidal Intent
c. Joint Criminal Enterprise
1. Actus Reus
2. Mens Rea

VI) Did Genocide Occur – Summary of ICTY, ICJ and Court of
BiH Cases

VII) How did it occur? Summary of the Genocidal Plan

a. General Overview
b. VRS Organization
1. Main Staff
2. Corp and Brigade level
3. Zvornik Brigade
4. Role and duties of the Duty Operations officer
5. Accused Milorad Trbic
c. Events prior to 12 July
1. Preparations of the attack
2. Attack on Srebrenica and the fall of Srebrenica
3. Forcible transfer
d. Genocidal Plan: Events prior to and through 12 July 1995
1. Bratunac Brigade
2. Potocari
3. Column
e. Genocidal Plan: Events 13 July 1995 through 20 July
1995
1. Reburial Operations

VIII) The Charges – Factual Findings

a. Selected and located school buildings for temporary
detention facilities
a. Acts alleged in indictment

194
b. Panel’s findings

b. Grbavci School, Orahovac
1. General factual findings
a. Acts alleged in indictment
b. Panel’s findings
2. Acts of Milorad Trbic
a. Acts alleged in indictment
b. Panel’s findings

c. Petkovic School
1. General factual findings
a. Acts alleged in indictment
b. Panel’s findings

2. Acts of Milorad Trbic
a. Acts alleged in indictment
b. Panel’s findings

d. Rocevic School and Kozluk
1. General factual findings
a. Acts alleged in indictment
b. Panel’s findings

2. Acts of Milorad Trbic
a. Acts alleged in indictment
b. Panel’s findings

e. Kula Grad
1. General factual findings
a. Acts alleged in indictment
b. Panel’s findings

2. Acts of Milorad Trbic
a. Acts alleged in indictment
b. Panel’s findings

f. Duty Operations Officer, Kula School, Branjevo
Military Farm and Pilica Dom
1. General factual findings
a. Acts alleged in indictment
b. Panel’s findings

2. Acts of Milorad Trbic

195
a. Acts alleged in indictment
b. Panel’s findings

g. On or about 19 July 1995 and
on 20 July 1995
1. General factual findings
a. Acts alleged in indictment
b. Panel’s findings
2. Acts of Milorad Trbic
a. Acts alleged in indictment
b. Panel’s findings
3. General factual findings
a. Acts alleged in indictment
b. Panel’s findings

4. Acts of Milorad Trbic
a. Acts alleged in indictment
b. Panel’s findings

h. Reburial
1. General factual findings
a. Acts alleged in indictment
b. Panel’s findings

2. Acts of Milorad Trbic
a. Acts alleged in indictment
b. Panel’s findings

IX) Individual Criminal Responsibility of the Accused
a. Joint Criminal Enterprise
1. Introduction
2. Actus Reus
3. Mens rea

b. The Crime of Genocide
1. Actus Reus
2. Mens rea

X) Acquitting part of the verdict
XI) Sentencing
XII) Property Claims

196
XIII) Decision on the costs of the property law claims
XIV) Annex
Procedural Decisions
List of Evidence
List of Cases Cited
Other Authorities Cited
Abbreviations

---------------------------------------------------------------------------------

197
APPENDIX XII: Example of a Draft Section of a Written Judgment under the
Accusatorial Model Practiced in (post-2003) Bosnia-
Herzegovina

Source: Provided by Patricia Whalen (International Judge, State Court of
Bosnia-Herzegovina)

------------------------------------------------------------------------------------------------------------

DRAFT EXAMPLE
LAW SECTION
INDIVIDUAL CRIMINAL RESPONSIBILITY

1. Individual Criminal Responsibility –Article 180(1)

A person who planned, instigated, ordered, perpetrated or otherwise aided
and abetted in the planning, preparation or execution of a criminal offence
referred to in Article 171 (Genocide)… of this code, shall be personally
responsible for the criminal offence. The official position of any accused person,
whether as Head of State or Government or as a responsible Government official
person, shall not relieve such person of criminal responsibility nor mitigate
punishment. (emphasis added)

2. Article 180 establishes the mode of criminal liability that the Panel must find in
order to convict persons for crimes specifically referenced within Article 180.
1
It has
been charged together with Article 29 of Chapter 5 of the CC of BiH, which provides for
the manner of commission and degrees of liability for commission of offences.
2

3. Article 180 (1) is derived from and identical to Article 7 of the ICTY Statute. The
ICTY Statute is international law, by virtue of its having been drafted pursuant to the
powers of the United Nations.
3
It is a well-established principle of international law that
when international law is incorporated into domestic law, “[d]omestic Courts must
consider the parent norms of international law and their interpretation by international

1
Mitar Rašević and Savo Todović, X-KR/06/275 (Ct. of BiH), First Instance Verdict, 28 February 2008,
pg. 103.
2
Id.
3
Id. See Report of the Secretary-General, UN Doc. S/25704, 3 May 1993.

198
courts.”
4
When Article 7 was copied into the law of BiH, it came with its international
origins and its international judicial interpretation and definitions.
5

Forms of responsibility (also called modes of liability, modes,
or participation)

4. Article 180(1) provides jurisdiction over those who plan, instigate, order,
physically perpetrate a crime or otherwise aid and abet in its planning, preparation or
execution. As the Appeals Chamber in Tadić 15 July 1999 explained, any act falling
under one of these five categories contained in Article 7(1) “…may entail the criminal
responsibility of the perpetrator or whoever has participated in the crime in one of the
ways specified in the same provision of the Statute.”
6

5. “Committed” in Article 7(1) (and hence also “perpetrated” in Article 180(1) of the
CC of BiH) are buried in the paragraph. It has been suggested that this may be “…an
attempt to muddy the translation distinction between primary and secondary participation
in crime.”
7
“The person who ‘commits’ the crime is usually described as the ‘primary’
perpetrator, while he or she who plans, instigates, orders, or aids and abets in the
planning, preparation or execution is a ‘secondary’ perpetrator.”
8
“A good reason not to
insist too much on the distinction between primary and secondary participation in the
case of international crimes is that so-called ‘secondary’ offenders, that is, those who
plan, instigate, or order atrocities, are arguably far more evil than those who ‘merely’
perpetrate the foul deed.”
9
However, “…the tribunals do recognize a degree of hierarchy
here, in that where an individual is found to have both committed and planned to commit
an offence, that person will be convicted of commission and not planning.” “To this

4
Id. citing to Gerhard Werle, Principles of International Criminal Law, (The Hague: Asser Press, 2005),
pg. 80. See also Richard K. Gardiner, International Law (Essex: Pearson, 2003), p. 156; Rosalyn Higgins,
Problems and Process: International Law and How We Use It (Oxford: Clarendon Press, 1994), pg. 206.
5
Id.
6
Prosecutor v. Duško Tadić, IT-94-1-A, Appeals Judgment, 15 July 1999, para. 188
7
William Schabas, The UN International Criminal Tribunals: The former Yugoslavia, Rwanda and Sierra
Leone, (Cambridge: University Press, 2006), pg. 297.
8
Id.
9
Id.

199
extent, planning, as well as instigating, ordering and aiding and abetting, are treated as
forms of ‘secondary’ participation.”
10

(a) Commission

6. Individual criminal responsibility will attach for “committing” a crime “...where it
is established that the accused himself physically perpetrated the criminal act or
personally omitted to act when required to do so under law.”
11
The ICTY Appeals
Chamber has held that Article 7(1) “…covers first and foremost the physical perpetration
of a crime by the offender himself, or the culpable omission of an act that was mandated
by a rule of criminal law.”
12
The “commission” of a crime under the ICTY Statue and
“perpetration” under the CC of BiH may also take the form of co-perpetration in a joint
criminal enterprise.

7. The actus reus required for committing a crime is that “…the accused
participated, physically or otherwise directly or indirectly, in the material elements of the
crime charged through positive acts or, based on a duty to act, omissions, whether
individually or jointly with others.
13
The accused himself need not have participated in
all aspects of the alleged criminal conduct.”
14
There can be several perpetrators who may
be said to have “committed” the same crime if “…the conduct of each one of them fulfills
the requisite elements of the definition of the substantive offence.”
15
Guénaël Mettraux
suggests “[t]his does not mean, however, that the perpetrator must have contributed in
equal terms to the offence that has been committed. And in the case of co-perpetration in

10
Id.
11
Prosecutor v. Vidoje Blagojević and Dragan Jokić, IT-02-60-T, Judgment, 17 January 2005, para. 694
citing Prosecutor v. Duško Tadić, IT-94-1-A, Appeals Judgment, 15 July 1999, para 188.
12
Tadić Appeals Judgment, para. 188.
13
Prosecutor v. Milomir Stakić, IT-97-2-T, Judgment, 31 July 2003, para. 439; Prosecutor v. Fatmir Limaj,
et al, IT-03-66-T, Judgment, 30 November 2005, para. 509; Prosecutor v. Kvočka et al, IT-98-30/1,
Judgment, 2 November 2001, para. 251.
14
Stakić Judgment, para. 439.
15
Prosecutor v. Dragoljub Kunarac et al, IT-96-23-T & IT-96-23/1, Judgment, 22 February 2001, para.
390.

200
the context of joint criminal enterprise, particular rules would apply…”
16
which will be
discussed in the joint criminal enterprise section.

8. The requisite mens rea “…is that the accused acted with an intent to commit the
crime…”
17
or, as in other forms of criminal participation under Article 7(1) he must have
been aware of “the substantial likelihood that a criminal act or omission would occur as a
consequence of his conduct.”
18

(b) Planning

9. The actus reus of “planning” requires that one or more persons design the
criminal conduct constituting one or more statutory crimes that are later perpetrated.
19
It
is sufficient to demonstrate that planning was a factor substantially contributing to
such criminal conduct.
20

10. A person who plans an act or omission with the awareness of the substantial
likelihood that a crime will be committed in the execution of that plan has the requisite
mens rea for establishing responsibility under Article 7(1) [and Article 180(1)] pursuant
to planning.
21

11. An individual may be convicted of planning alone.
22
However, an accused found
to have actually committed a crime will not be found responsible for planning the same

16
Guénaël Mettraux, International Crimes and the ad hoc Tribunals, (Oxford: University Press, 2005), pg.
283-84.
17
Limaj Trial Judgment, para. 188.
18
Kvočka Trial Judgment, para. 251; Limaj Trial Judgment, para. 509.
19
Prosecutor v. Dario Kordić and Mario Čerkez, Appeals Judgment, IT-95-14/2-A, 17 December 2004,
para. 26; see also Limaj et al. Trial Judgment, para. 513 (similar).
20
Kordić and Čerkez Appeals Judgment, para. 26.
21
Kordić and Čerkez Appeals Judgment, para. 31.
22
Prosecutor v. Dario Kordić and Mario Čerkez, Judgment, IT-95-14/2-T, 26 February 2001, para. 386.

201
crime.
23
The fact that the accused planned - as well as took part in the commission of-
the crimes could be considered an aggravating circumstance at the time of sentencing.
24

(c) Instigating

12. The actus reus of “instigating” means to prompt another to commit an offence.
25

Both acts and omissions may constitute instigating which covers express and implied
conduct.
26
For example, it has been held that omissions amount to instigation in
circumstances where a commander has created an environment permissive of criminal
behavior by subordinates.
27
A nexus between the instigation and the perpetration must be
demonstrated;
28
but it is not necessary to prove that the crime would not have been
perpetrated without the involvement of the accused.
29
It is sufficient to satisfy the actus
reus by showing that the instigation was a factor substantially contributing to the
conduct of the person committing the crime.
30

13. The requisite mens rea for “instigating” is if the accused intended to provoke or
induce the commission of the crime in question
31
or who instigates another person to
commit an act or omission with the awareness of the substantial likelihood that a crime
will be committed in the execution of that instigation.
32
Instigating with such awareness
has to be regarded as accepting the crime.
33

23
Kordić Trial Judgment, para. 386; Prosecutor v. Milomir Stakić, IT-97-24-T, Decision on Rule 98bis
Motion for Judgment of Acquittal, 31 October 2002, para. 104; Stakić Trial Judgment, para. 443.
24
G. Mettraux, p. 280.
25
Krstić Trial Judgment, para. 601; Blaškić Trial Judgment, para. 280, Kordić Appeals Judgment, para. 27,
Kordić Trial Judgment, para. 387.
26
Limaj et al Trial Judgment, para. 514; See also Brđanin Trial Judgment, para 269 (same), Blaškić Trial
Judgment, para. 280 (similar).
27
Galić Trial Judgment, para. 168.
28
Brđanin Trial Judgment, para 269, Blaškić Trial Judgment, para. 280.
29
Kordić and Čerkez Appeals Judgment, para. 27.
30
Kordić and Čerkez Appeals Judgment, para. 27.
31
Limaj et al Trial Judgment, para. 514.
32
Kordić and Čerkez Appeals Judgment, para. 32; Limaj et al Trial Judgment, para. 514.
33
Kordić and Čerkez Appeals Judgment, para. 32.

202
14. In the Court of BiH Second Instance Verdict in Marko Samardžija, the Appellate
Panel stated the term instigation of the criminal offence is not defined by any provision of
the CC of BiH.
34

(d) Ordering

15. Following the ICTY jurisprudence, “‘ordering’ means a person in a position of
authority using that authority to instruct another to commit an offence”
35
. Thus, the actus
reus of “ordering” involves that a person in a position of authority orders another person
to commit an offence.
36
The person ordering can be a de jure or de facto commander of
the person committing the crime.
37
The order can be given in any form
38
, be it written or
oral, implicit or explicit
39
. The order may be proven by circumstantial evidence.
40
It must
also be proven that there exist a causal link between the order and the perpetration of the
crime.
41

16. As for the required mens rea, “what is important is the commander’s mens rea,
not that of the subordinate executing the order”
42
. The person who orders an act or
omission must do so either with direct intent or with the awareness of the substantial
likelihood that the crime will be committed in execution of that order.
43
It must be shown
at least that the Accused acted with the awareness of the substantial likelihood that the
criminal offence. Finally, the superior ordering with such awareness of a substantial
likelihood that a crime will be committed in execution of that order will be regarded as

34
Marko Samardžija, X-KRZ-05/07, Second Instance Verdict, 15 October 2008, pg. 24.
35
Prosecutor v. Galić, Trial Judgment, para. 168; see also Limaj et al Trial Judgment, para. 515; Stakić
Trial Judgment, para. 445.
36
Kordić and Čerkez Appeals Judgment, para. 28.
37
Limaj et al. Trial Judgment, para. 515.
38
Brđanin Trial Judgment, para. 270.
39
Blaškić Trial Judgment, para. 281.
40
Limaj et al. Trial Judgment, para. 515.
41
Strugar Trial Judgment, para. 332.
42
Blaškić Trial Judgment, para. 282.
43
See Kordić and Čerkez, Appeals Judgment, para. 30; Blaškić, Appeals Judgment, paras. 41-42.

203
accepting the crime.
44
Additionally, the person ordering must also have the requisite
mens rea of the underlying crime for which he is charged.
45

(e) Aiding and Abetting in the planning, preparation or
execution

17. In the Court of BiH Second Instance Verdict in Marko Samardžija, the Appellate
Panel analyzed aiding and abetting which was one of the forms of participation alleged in
the Indictment.
46
It was alleged that the Accused committed the criminal offense of
Crimes against Humanity in violation of Article 172(1) a) in conjunction with individual
criminal responsibility referred to in 180(1) of the CC of BiH. The Appellate Panel
stated, “[a]ccessory, as a form of criminal responsibility, is regulated by Article 31, that
is, as part of individual criminal responsibility by Article 180(1) of the CC of BiH.
47

18. Article 31 of CC of BiH provides:

(1) Whoever intentionally helps another to perpetrate a criminal offense
shall be punished as if he himself perpetrated such offence, but the
punishment may be reduced.
(2) The following, in particular, shall be considered as helping in the
perpetration of a criminal offense: giving advice or instructions as to
how to perpetrate a criminal offense, supplying the perpetrator with
tools for perpetrating the criminal offense, removing obstacles to the
perpetration of criminal offense, and promising, prior to the
perpetration of the criminal offense, to conceal the existence of the
criminal offense, to hide the perpetrator, the tools used for perpetrating
the criminal offense, traces of the criminal offence, or goods acquired
by perpetration of the criminal offence.

19. The Appellate Panel explained further that the “essence of this notion is that an
accessory, either physically or [sic] mentally (morally), that is, by act or omission,

44
Blaškić Appeals Judgment, para. 42.
45
Brđanin Trial Judgment, para. 270.
46
Marko Samardžija, Second Instance Verdict, pg. 24.
47
Marko Samardžija, Second Instance Verdict, pg. 26.

204
undertakes certain actions aiding the perpetrator to commit the offense. Subjectively, it is
required:
1) that the accessory is aware that by his actions he aides
the perpetrator to commit the criminal offense and
2) that he must be aware of the essential elements of the
criminal offense (in the specific situation – the
circumstances referring to the victims (civilians),
existence of the attack and the like).

20. In this case, the Appellate Panel did not find that the Accused knew that the
imprisoned civilians would be murdered, thus he could not be an accessory to the direct
perpetrators given that he had not been aware of the crime which was subsequently
perpetrated. Furthermore, that if “based on the adduced evidence that the Accused knew
that the civilians in whose imprisonment he took part, would be executed, his actions
could rather be characterized as criminal acts of murder as a Crime against Humanity
given that taking and detaining the civilians in the case would constitute a decisive
contribution to the achievement of the final goal, that is, their murder.” As will be
discussed below ICTY jurisprudence requires the accused’s support has a substantial
effect upon the perpetration of the crime.

21. “Aiding and abetting” has been defined as the act of rendering practical
assistance, encouragement or moral support, which has a substantial effect on the
perpetration of a certain crime.
48
Strictly, “aiding” and “abetting” are not synonymous.
49

“Aiding” involves the provision of assistance; “abetting” need involve no more than
encouraging, or being sympathetic to, the commission of a particular act.
50
These forms
of liability have, however, been consistently considered together in the jurisprudence of
the Tribunal.
51

48
Limaj et al Trial Judgment para. 516 citing Krstić Trial Judgment, para 601; Aleksovski Appeals
Judgment, para 162, citing Furundzija Trial Judgment, para. 249.
49
Limaj et al Trial Judgment para. 516 citing Kvočka Trial Judgment, para. 254, citing Akayesu Trial
Judgment, para 484.
50
Limaj et al Trial Judgment para. 516 citing Kvočka Trial Judgment, para. 254, citing Akayesu Trial
Judgment, para 484.
51
Limaj et al Trial Judgment para. 516.

205
Actus reus

22. The aider and abettor carries out acts specifically directed to assist, encourage or
lend moral support to the perpetration of a certain specific crime (murder, extermination,
rape, torture, wanton destruction of civilian property, etc), and this support has as
substantial effect upon the perpetration of the crime.
52
An ICTY Trial Chamber has said
that the substantial requirement calls for “a contribution that in fact has an effect on the
commission of the crime.”
53
Additionally, it suggested that participation is substantial if
“the act most probably would not have occurred in the same way had not someone acted
in the role that the accused in fact assumed.”
54
In Kvočka, the ICTY Appeals Chamber
said it considered that

whether an aider and abettor is held responsible for assisting an individual crime
committed by a single perpetrator or for assisting in all the crimes committed by
the plurality of persons involved in a joint criminal enterprise depends on the
effect of the assistance and on the knowledge of the accused. The requirement
that an aider and abettor must make a substantial contribution to the crime in
order to be responsible applies whether the accused is assisting in a crime
committed by an individual or in crimes committed by a plurality of persons.
55

23. It has also been suggested “[t]he requirement that the contribution of the accused
to the act of the principal must be ‘substantial’ is essentially conceived as a mechanism to
exclude minor contributions from the realm of criminal responsibility.”
56
For example,
the ICTY Appeals Chamber has determined that “the actus reus of aiding and abetting
may be satisfied by a commander permitting the use of resources under his or her control,
including personnel, to facilitate the perpetration of a crime.”
57

52
Blaškić Appeals Judgment para. 45 citing Vasiljević Appeals Judgment, para. 102.
53
Prosecutor v. Duško Tadić, IT-94-1-T, Opinion and Judgment, 7 May 1997, para. 688.
54
Tadić Trial Judgment para. 688.
55
Kvočka et al. Trial Judgment, para. 90.
56
G. Mettraux, p. 284.
57
Prosecutor v. Vidoje Blagojević and Dragan Jokić, IT-02-60-A, Judgment, 9 May 2007, para.127; see
Prosecutor v. Radislav Krstić, IT-98-33-A, Judgment, 19 April 2004, para. 137, 138, 144.

206
24. But “assistance need not constitute an indispensable element, that is, a conditio
sine qua non for the acts of the principal.”
58
William Schabas points out that an isolated
ICTY case (however, ICTY Trial Judgments in Strugar and Simić, Tadić, and Zarić state
similar) says there is no requirement for proof that the conduct of the aider and abettor
had a causal effect on the act of the principal perpetrator.
59
He explains that “this seems
hard to reconcile with the requirement of a ‘substantial effect’ which is in several of the
decisions.”
60
Interestingly, the “Rome Statute does not provide any indication as to
whether there is some quantitative degree of aiding and abetting required to constitute the
actus reus of complicity.
61
The absence of words like ‘substantial’ in the Rome Statute,
and the failure to follow the International Law Commission draft, may imply that the
Diplomatic Conference meant to reject the higher threshold of the recent case law of The
Hague.”
62

25. The ICTY Appeals Chamber has left open the possibility that the circumstances
of a given case, an omission may constitute the actus reus of aiding and abetting
“provided this failure to act had a decisive effect on the commission of the crime and that
it was coupled with the requisite mens rea.”
63
ICTY Trial Chambers have “held that this
is the case, for example, if a person with superior authority is present at the crime scene,
provided that his presence had a significant encouraging effect on the principal offender,
or if there was an explicit duty to act.”
64

58
Schabas p. 304 citing Prosecutor v. Anto Furndzija, IT-95-17/1-T, Judgment, 10 December 1998, para.
209; Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Judgment, 7 June 2001, para. 33. But see
Prosecutor v. Ignace Bagilishema, ICTR-95-1A-T, Separate and Dissenting Opinion of Judge Mehmet
Guney, 7 June 2001.
59
Blaškić Appeals Judgment, para. 48. See also Prosecutor v. Blagoje Simić, IT-95-9-A, Judgment, 28
November 2006, para. 85.
60
Schabas, p. 304.
61
Schabas p. 304 citing Rome Statute of the International Criminal Court, UN Doc.A/CONF.183/9, art.
25(3)(c).
62
Schabas p. 304.
63
Blaškić Appeals Judgment para. 47.
64
Strugar Trial Judgment para. 349 citing to Blaškić Appeals Judgment para. 47.

207
26. Mere presence at the scene will not usually constitute aiding or abetting unless it
can be shown that it had a “significant encouraging effect on the principal offender.”
65

Whether the accused was the superior of the principal offender or was otherwise in
position of authority is important to the determination.
66
An example of “encouraging
effect” is “when an accused is present and participates in the beating of one person and
remains with the group when it moves on to beat another person, his presence would have
an encouraging effect, even if he does not physically take part in the second beating, and
he should be viewed as participating in this second beating as well. This is assuming that
the accused has not actively withdrawn from the group or spoken out against the conduct
of the group.”
67
Additionally, “the presence of an individual with uncontested authority
over the perpetrators of the unlawful act may, in some circumstances, be interpreted as
approval of that conduct….An individual’s authority must therefore be considered to be
an important indicium as establishing that his mere presence constitutes an act of
intentional participation under Article 7(1).”
68

27. It must furthermore be shown that the accused who is charged with having
provided such assistance by reason of his presence in or near the scene of the crime, that
he knew that his presence would indeed encourage or give moral support to the
principal(s).
69
The ICTR Trial Chamber in Kamuhanda explained the “requisite mens rea
may be established from an assessment of the circumstances, including the accused’s
prior and similar behaviour, failure to punish or verbal encouragement.”
70
“Nonetheless,
responsibility is not automatic and merits consideration against the background of the
factual circumstances.”
71

65
Vasiljević Trial Judgment, para. 70; Aleksovski Trial Judgment, para. 64; see also Kunarac, Kovač and
Vuković Trial Judgment para. 393 (requiring “a significant legitimizing or encouraging effect”).
66
Aleksovski Trial Judgment para. 65.
67
Tadić Trial Judgment, para. 690.
68
Aleksovski Trial Judgment para. 65.
69
Kayishema and Ruzindana Trial Judgment, para. 201. See also Prosecutor v. Jean de Dieu Kamuhanda,
ICTR-95-54A-T, Judgment, 22 January 2004, para. 600.
70
Kamuhanda Trial Judgment, para. 600.
71
Aleksovski Trial Judgment, para. 65.

208
28. But other than those who are alleged to have provided encouragement or moral
support by reason of their presence (and status), an aider and abettor need not be
physically present when the underlying crime is committed
72
and it may be that “the
location at which the actus reus takes place may be removed from the location of the
principal crime.”
73

29. The Trial Chamber for Tadić held that he may, in principal, “be responsible for all
that naturally results from the commission of the act in question.”
74
This suggestion
appears to have little support in international law, and does not seem to have been
reaffirmed in any other decision of either Tribunal.
75

30. An accused may be convicted for having aided and abetted a crime which requires
specific intent even where the principal perpetrators have not been tried or identified.
76

Nevertheless, the criminal act of the principal for which the aider and abettor is
responsible must be established.
77
The principal may not even know about the
accomplice’s contribution.
78
“No proof is required of the existence of a common
concerted plan, let alone of the pre-existence of such a plan. No plan or agreement
required…”
79

Mens Rea

31. The requisite mens rea is knowledge (in the sense that he was aware) that the acts
performed by the aider and abettor assist in the commission of the specific crime of the

72
Tadić Trial Judgment, para. 691; Akayesu Trial Judgment, para. 484.
73
Blaškić Appeals Judgment para. 48.
74
Tadić Trial Judgment, para. 692; see, e.g., Kvočka et al. Trial Judgment, para. 262 “The aider or abettor
of persecution will…be held responsible for discriminatory acts committed by others that were a
reasonably foreseeable consequence of their assistance or encouragement.”
75
G. Mettraux, p. 286 fn. 46.
76
Krstić Appeals Judgment, para. 143; Brđanin Trial Judgment, para. 271; Blagojević and Jokić, para. 638.
77
Blagojević and Jokić Trial Judgment, para. 726; see also Simić, Tadić and Zarić Trial Judgment, para.
161 (similar).
78
Tadić Appeals Judgment para. 229; see also Simić, Tadić and Zarić Trial Judgment, para. 161 (similar).
79
Tadić Appeals Judgment para. 229.

209
principal.
80
It is not necessary that the accused shared the intent of the principal
offender,
81
but he must be aware of the essential elements of the crime, including the
principal’s mental state,
82
and he must have taken the conscious decision to act in the
knowledge that he would thereby support the commission of the crime
83
.

32. The ICTY Appeals Chamber has held that “it is not necessary that the aider and
abettor…know the precise crime that was intended and which in the event was
committed. If he is aware that one of a number of crimes will probably be committed,
and one of those crimes is in fact committed, he has intended to facilitate the commission
of that crime, and is guilty as an aider and abettor.”
84
An ICTY Trial Chamber preferred
a stricter definition set out in Kunarac and Krnojelac which explained the mens rea of
aiding and abetting as consisting of knowledge (or awareness) that the acts performed by
the aider and abettor assist in the commission of a specific crime by the principal.
85
The
mens rea must also exist at the time of the planning, preparation or execution of the
crime.
86

33. “In sum, it is, in principal, sufficient that the aider and abettor had knowledge of
the intent of the principal (to the extent mentioned above), that he knew that his acts or
conduct would assist the principal in the commission of the crime and that, with that
knowledge, he decided to provide substantial assistance to the principal.”
87
If the
accused is found guilty as an aider and abettor rather than a co-perpetrator the ICTY
Appeals Chamber in Vasiljević said “aiding and abetting is a form of responsibility which
generally warrants a lower sentence than is appropriate to responsibility as a co-
perpetrator.” In that case, it reduced a sentence of twenty years to fifteen years because

80
Blaškić Appeals Judgment para. 45; see also Vasiljević Appeals Judgment, para. 102 (same); Brđanin
Trial Judgment, para. 272.
81
Aleksovski Appeals Judgment, para. 162; Kunarac Trial Judgment, para. 392; Furundzija Trial Judgment,
para. 245.
82
Aleksovski Appeals Judgment, para. 162; Limaj et al Trial Judgment, para. 518.
83
Kunarac Trial Judgment, para. 392; Vasiljević Trial Judgment, para. 71.
84
Blaškić Appeals Judgment, para. 50.
85
Simić, Tadić and Zarić Trial Judgment, para. 163.
86
Blagojević and Jokić Trial Judgment, para. 728.
87
Mettraux, p. 287

210
of the lesser gravity of aiding and abetting.
88
Similarly, “the acts of a participant in a
joint criminal enterprise are more serious than those of an aider and abettor since a
participant in a joint criminal enterprise shares the intent of the principal offender
whereas an aider and abettor need only be aware of that intent.”
89
However, it is
ultimately “the gravity of the conduct which determines the appropriate sentence, not the
legal label assigned to his actions.”
90

------------------------------------------------------------------------------------------------------------

88
Schabas, p. 308 citing to Vasiljević Trial Judgment, para. 182. See also Kvočka Appeals Judgment, para.
204.
89
Schabas, p. 309 citing to Krnojelac Appeals Judgment, para. 75.
90
Mettraux, p. 287 citing to Krstić Appeals Judgment, para. 268: “aiding and abetting is a form of
responsibility which generally warrants lower sentences than responsibility as a co-perpetrator”; Vasiljević
Appeal Judgment, para. 181-182; Vasiljević Trial Judgment, para. 272 and sources quoted therein.

211
APPENDIX XIII: Completed First Instance State-Court of Bosnia-Herzegovina Cases (2004-2010)

------------------------------------------------------------------------------------------------------------------------------------------------------------------

CASE

(Note
indicates that
the case was
transferred
from the
ICTY under
the Rule
11bis
procedure)
PANEL

(* Indicates
International
Judge)
CRIMINAL
CODE
USED
OFFENSE

FACTS

(In cases
involving
multiple
accused and
differential
charging, the
initials of the
individual
accused is
included in
parentheses)
SENTENCE MODEL OF
ADJUDICATION
Abduladhim
Maktouf,
Case No.
KT-127/04
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 1, 2005)

Salem Miso

Davorin Jukić

Azra Miletić

Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

As a member
of Al Mujahid
Unit (Bosnian
Muslim
military
forces), the
accused
allegedly put
civilians in
camps, where
they were then
beat and
mistreated.
GUILTY = Imprisonment (5
years)
Inquisitorial
Neđo
Samardžić,
Case No. X-
KR-05/49
(First
Instance
Verdict),
State-Court
Zorica Gogola

* Roland
Dekkers
(Netherlands)

* Tore
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Sexual Intercourse through
As a member
of Serb military
forces, the
accused
allegedly
deprived
civilians of
liberty, and
GUILTY = Imprisonment (13
years, 4 months), in relation to
Art. 172 (1) (e), (g)

ACQUITTED, in relation to Art.
172 (a), (d), (e), (g), (h), (i), (k)

CHARGES DISMISSED, in
Inquisitorial

212
of Bosnia-
Herzegovina
(Apr. 7,
2006)

Lindseth
(Norway)
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
coerced
civilians into
sexual
intercourse.
relation to Art. 172 (a), (d), (e),
(g), (h), (i), (k)

Dragoje
Paunović,
Case No. X-
KR-05/16
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(May 26,
2006)

Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)

* Almiro
Rodrigues
(Portugal)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
As a member
of Serb military
forces, the
accused
allegedly
ordered and
also engaged in
the persecution
of Bosnian
Muslim
civilians. The
accused
allegedly used
civilians as
“human
GUILTY = Imprisonment (20
years)

Inquisitorial

213
Herzegovina)

shields” which
resulted in their
wounding and
death.
Boban
Šimšić, Case
No. X-KR-
05/04 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 11,
2006)

Dragomir
Vukoje

* Richard
Gebelein
(United
States)

* Georges
Reniers
(Belgium)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
The accused
allegedly
carried out the
enforced
disappearances
of civilians;
assisted in
rape;
participated in
the attack and
unlawful arrest
and
incarceration of
civilians;
mistreated
civilians; stole
their property;
and tortured
and killed
civilians.
GUILTY = Imprisonment (5
years), in relation to Art. 172 (1)
(i), (g)

ACQUITTED, in relation to Art.
172 (1) (h), (a), (b), (e), (f), (k)

CHARGES DISMISSED, in
relation to Art. 172 (1) (h), (f),
(k)
Accusatorial

214
Nikola
Kovačević,
Case No. X-
KR-05/40
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Nov. 3,
2006)
Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)

* Almiro
Rodrigues
(Portugal)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
As a member
of Serb military
forces, the
accused
allegedly aided,
abetted,
executed, and
instigated the
persecution of
Croatian and
Bosnian
Muslim
civilians.
GUILTY = Imprisonment (12
years)
Inquisitorial
Marko
Samardžija,
Case No. X-
KR-05/07
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Nov. 3,
2006)
Zorica Gogola

* Roland
Dekkers
(Netherlands)

* Tore
Lindseth
(Norway)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

As a
commander of
Serb military
forces, the
accused
allegedly aided
and abetted in
the murders of
Bosnian
Muslim
civilians.
GUILTY = Imprisonment (26
years)
Inquisitorial
Radovan
Stanković,
Case No. X-
KR-05/70
(First
Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Enslavement (Art. 172 (1) (c),
Criminal Code of Bosnia-
The accused
allegedly
brought
Bosnian
Muslim girls to
GUILTY = Imprisonment (16
years), in relation to Art. 172 (1)
(c), (e), (f), (g)

ACQUITTED, in relation to Art.
Inquisitorial

215
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Nov. 14,
2006)

(Note: Case
transferred
from the
ICTY under
Rule 11bis
procedure)

* Almiro
Rodrigues
(Portugal)

Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)
a detention
center, where
they were
subjected to
physical and
mental abuse,
rape, and
forced labor.
172 (1) (g)

CHARGES DISMISSED, in
relation to Art. 172 (1) (g)

Nikola
Andrun, Case
No. X-KR-
05/42 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Dec. 14,
2006)

Dragomir
Vukoje

* Richard
Gebelein
(United
States)

* Georges
Reniers
(Belgium)
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective Punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)
As a member
of the military
forces of the
self-declared
Croatian
Republic of
Herceg-Bosna,
the accused
allegedly
tortured and
participated in
the torture of
civilians,
participated in
the violation of
their bodily
integrity,
treated them
inhumanely,
and intimidated
and terrorized
them.
GUILTY = Imprisonment (13
years), in relation to Art. 172 (1)
(c), (e)

ACQUITTED, in relation to Art.
172 (1) (c), (e)

Inquisitorial
Dragan
Damjanović,
Case No. X-
KR-05/51
Hilmo
Vučinić

* Paul M.
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
The accused
allegedly
committed
murder, torture,
GUILTY = Imprisonment (20
years), in relation to Art. 172 (1)
(h), (a), (f), (i)

Inquisitorial

216
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Dec. 15,
2006)
Brilman
(Netherlands)

* Shireen
Avis Fisher
(United
States)
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Torture Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)
rape, enforced
disappearance
of persons, and
other inhumane
acts causing
serious injuries
to body and
health.
ACQUITTED, in relation to Art.
172 (1) (a), (f)

Gojko
Janković,
Case No. X-
KR-05/161
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Feb. 16,
2007)

(Note: Case
transferred
from the
ICTY under
Rule 11bis
procedure)
Zorica Gogola

* Roland
Dekkers
(Netherlands)

* Tore
Lindseth
(Norway)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
As a leader of
Serb military
forces, the
accused
allegedly
participated in
an attack in
which civilians
were captured;
physically
abused; killed;
and separated
according to
sex and
detained in
several
facilities, in
which they
were subjected
to physical,
mental, and
GUILTY = Imprisonment (34
years), in conjunction with Art.
172 (1) (a), (d), (e), (f), (g)

ACQUITTED, in relation to Art.
172 (1) (g)

Accusatorial

217
Herzegovina) sexual abuse.
Radisav
Ljubinac,
Case No. X-
KR-05/154
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Mar. 8,
2007)
Zorica Gogola

* Roland
Dekkers
(Netherlands)

* Tore
Lindseth
(Norway)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
The accused
allegedly took
part in the
forcible
transportation
of a population,
with the
intention of
inflicting
serious
physical or
mental injury
and damage to
health.
GUILTY = Imprisonment (10
years), in relation to Art. 172 (1)
(d), (k)

ACQUITTED, in relation to Art.
172 (1) (a), (h)

Accusatorial
Radmilo
Vuković,
Case No. X-
KR-06/217
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Apr. 16,
2007)
Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)

* Almiro
Rodrigues
(Portugal)
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
As a member
of Serb military
forces, the
accused
allegedly
repeatedly
raped a
Bosnian
Muslim
civilian.
GUILTY = Imprisonment (5
years and 6 months)
Accusatorial

218
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)
Damjanović
et al., Case
No. X-KR-
05/107 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jun. 18,
2007)
Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)

* Almiro
Rodrigues
(Portugal)
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

As members of
Serb military
forces, the
accused (G.D.
and Z.D.)
allegedly took
part in beating
and capturing
Bosnian
Muslim
civilians.
GUILTY (G.D.) = Imprisonment
(11 years)

GUILTY (Z.D.) = Imprisonment
(10 years and 6 months)
Accusatorial
Zoran
Janković,
Case No. X-
KR-06/234
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jun. 19,
2007)
Minka Kreho

* Roland
Dekkers
(Netherlands)

* Tore
Lindseth
(Norway)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)
As a member
of Serb military
forces, the
accused
allegedly killed
Bosnian
Muslim
civilians in
addition to
persecuting and
deporting them.
ACQUITTED

Accusatorial
Niset Ramić,
Case No. X-
KR-06/197
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 17,
2007)

Hilmo
Vučinić

* Paul M.
Brilman
(Netherlands)

* Shireen
Avis Fisher
(United
States)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)
As a member
of Bosnian
Muslim
military forces,
the accused
allegedly killed
Serb civilians.
GUILTY = Imprisonment (30
years)

Inquisitorial

219
Momčilo
Mandić,
Case No. X-
KR-05/58
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 18,
2007)
Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)

* Almiro
Rodrigues
(Portugal)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)
Enslavement (Art. 172 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)

WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
In his capacity
of the Deputy
Minister of the
self-declared
Republic of
Srpska, the
accused
allegedly
planned,
instigated,
ordered and
committed, as
well as incited
the planning,
instigation, and
perpetration of
unlawful
confinement
and inhuman
treatment of
civilians; he
planned,
instigated,
ordered and
committed, as
well as incited,
aided and
abetted the
persecution of
civilians by
inhuman
treatment,
violation of
bodily
integrity,
unlawful
confinement,
labor and
enforced
disappearance;
ACQUITTED Accusatorial

220
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

he failed to
take the
necessary
measures to
prevent the acts
stated above
and punish the
perpetrators.
Nenad
Tanasković,
Case No. X-
KR-06/165
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Aug. 24,
2007)

Hilmo
Vučinić

* Paul M.
Brilman
(Netherlands)

* Shireen
Avis
Fisher
(United
States)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
As a part of
Serb military
forces, the
accused
allegedly knew
about and / or
participated in
civilian
imprisonment,
rape, torture,
forcible
transfer,
deprivation of
freedom, and
setting houses
on fire.
GUILTY = Imprisonment (12
years), in relation to Art. 172 (1)
(d), (e), (g), (f)

ACQUITTED, in relation to Art.
172 (1) (f), (h), (k)

Inquisitorial

221
Krešo Lučić,
Case No. X-
KR-06/298
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Sept. 19,
2007)
Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)

* Almiro
Rodrigues
(Portugal)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
The accused
allegedly
unlawfully
deprived
civilians of
liberty and
treated them
inhumanely by
beating the
detained
civilians.
GUILTY = Imprisonment (6
years), in relation to Arts. 172
(1) (e), (k), (f)

ACQUITTED, in relation to
Arts. 172 (1) (f)

Accusatorial
Jadranko
Palija, Case
No. X-KR-
06/290 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Nov. 28,
2007)
Minka Kreho

* Roland
Dekkers
(Netherland)

* Tore
Lindseth
(Norway)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)

As a member
of Serb military
forces, the
accused
allegedly killed
civilians,
intimidated and
raped civilians,
intimidated and
beat civilians,
and took part in
illegal arrests.
GUILTY = Imprisonment (28
years)

Accusatorial

222
WAR CRIMES (AGAINST
CIVILIANS)

Attack on Civilian Population
(Art. 173 (1) (a), Criminal Code
of Bosnia-Herzegovina)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Forced Labor / Property
Confiscation / Requisitioning
(Art. 173 (1) (f), Criminal Code
of Bosnia-Herzegovina)
Vuković et
al., Case No.
X-KR-
07/405 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Feb. 19,
2008)
Staniša
Gluhajić

* Elizabeth
Fahey
(United
States)

* Georges
Reniers
(Belgium)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY (Rn.V.)

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

CRIMES AGAINST
HUMANITY (Rj.V.)

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
As members of
Serb military
forces, the
accused (Rn.V.
and Rj.V.)
allegedly killed
Bosnian
Muslim
civilians.
GUILTY (Rn.V.) =
Imprisonment (12 years), in
relation to Art. 172 (1) (h), (a)

ACQUITTED (Rn.V.), in
relation to Art. 172 (1) (g)

GUILTY (Rj.V.) =
Imprisonment (12 years), in
relation to Art. 172 (1) (h), (a)

Inquisitorial

223
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)
Šefik Alić,
Case No. X-
KR-06/294
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Apr. 11,
2008)
Minka Kreho

* Roland
Dekkers
(Netherlands)

* Tore
Lindseth
(Norway)

Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
PRISONERS OF WAR)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 175 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

As a member
of the Bosnian
Muslim Army
of BiH, in the
capacity of
assistant
commander,
the accused
allegedly
participated in
physical and
mental abuse of
prisoners of
war; instigated
and aided in
their killing;
and failed to
take measures
to prevent or
punish other
perpetrators
who did the
same.
ACQUITTED

Accusatorial
Pekez et al.,
Case No. X-
KR-05/96-1
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Apr. 15,
2008)
Zoran Božić

* Marjan
Pogačnik
(Slovenia)

* Elizabeth
Fahey
(United
States)

Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Forced Labor / Property
Confiscation / Requisitioning
(Art. 173 (1) (f), Criminal Code
As members of
the Army of
the Republic of
Srpska and
reserve police
forces, the
accused (G.P.,
P.P., and M.S.)
allegedly
forcibly took
and illegally
arrested
GUILTY (G.P.) = Imprisonment
(21 years)

GUILTY (P.P.) = Imprisonment
(29 years)

GUILTY (M.S.) = Imprisonment
(21 years)
Inquisitorial

224
of Bosnia-Herzegovina) Bosnian
Muslim
civilians, took
their valuable
items, and
killed them.
Suad Kapić,
Case No. X-
KR-07/431
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Apr. 29,
2008)
Davorin Jukić

* Lars Folke
Bjur Nyström
(Finland)

* Patricia
Whalen
(United
States)
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
PRISONERS OF WAR)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 175 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

As a member
of the Bosnian
Muslim Army
BiH, the
accused
allegedly killed
prisoners of
war.
ACQUITTED

Accusatorial
Todorović et
al., Case No.
X-KR-
07/382 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Apr. 29,
2008)

Minka Kreho

* Roland
Dekkers
(Netherlands)

* Tore
Lindseth
(Norway)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)
As members of
the Army of
the Republic of
Srpska, the
accused (M.T.
and M.R.)
allegedly
tortured and
killed civilians.
GUILTY (M.T.) = Imprisonment
(17 years)

GUILTY (M.R.) = Imprisonment
(17 years)

Accusatorial
Zijad
Kurtović,
Case No. X-
KR-06/299
(First
Minka Kreho

* Roland
Dekkers
(Netherlands)
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
As a member
of the Bosnian
Muslim Army
of BiH, the
accused
GUILTY = Imprisonment (11
years)

Accusatorial

225
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Apr. 30,
2008)

* Tore
Lindseth
(Norway)

Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

Forced Labor / Property
Confiscation / Requisitioning
(Art. 173 (1) (f), Criminal Code
of Bosnia-Herzegovina)

WAR CRIMES (AGAINST
PRISONERS OF WAR)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 175 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Suffering / Injury (Art. 175 (1)
(b), Criminal Code of Bosnia-
Herzegovina)
allegedly
tortured
detained
civilians and
prisoners of
war; inflicted
great suffering
and inhumane
treatment on
civilians;
applied
measures of
intimidation
and terror on
civilians;
forced civilians
to perform
forced labor;
and
participated in
the destruction
of religious
establishments.
Željko Lelek,
Case No. X-
KR-06/202
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(May 23,
Hilmo
Vučinić

* Paul M.
Brilman
(Netherlands)

* Shireen
Avis Fisher
(United
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
As a member
of the Army of
the Republic of
Srpska, the
accused
allegedly put
Bosnian
Muslim
civilians into
trucks which
GUILTY = Imprisonment (13
years), in relation to Art. 172 (1)
(h), (d), (e), (f), (g)

ACQUITTED, in relation to Art.
172 (1) (h), (a), (g)

Inquisitorial

226
2008) States)

Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)
were sent off to
territories
under Muslim
and Croat
control; he also
humiliated and
raped civilians,
and assisted in
their
imprisonment.
Mejakić et
al., Case No.
X-KR-
06/200 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(May 30,
2008)

(Note: Case
transferred
from the
ICTY under
Rule 11bis
procedure)
Šaban
Maksumić

* Pietro Spera
(Italy)

* Marie Tuma
(Sweden)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY (Ž.M. and M.G.)

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)
As a member
of the Army of
the Republic of
Srpska, the
accused
allegedly
murdered,
imprisoned,
tortured, raped,
harassed,
humiliated, and
persecuted
non-Serb
civilians in the
camps of
Omarska,
Keraterm, and
Trnopolje.
GUILTY (Ž.M.) = Imprisonment
(21 years), in relation to Art. 172
(1) (h), (a), (e), (f), (g), (k)

GUILTY (M.G.) = Imprisonment
(11 years), in relation to Art. 172
(1) (h), (a), (e), (f), (g), (k)

GUILTY (D.K.) = Imprisonment
(31 years), in relation to Art. 172
(1) (h), (a), (f), (g), (k)

Accusatorial

227

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)

CRIMES AGAINST
HUMANITY (D.K.)

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
Ivica
Vrdoljak,
Case No. X-
KR-08/488
(First
Instance
Minka Kreho

Tihomir
Lukes

* Marjan
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
As a member
of the military
forces of the
self-declared
Croatian
Republic of
GUILTY = Imprisonment (5
years)
Accusatorial

228
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 10,
2008)
Pogačnik
(Slovenia)

Criminal Code of Bosnia-
Herzegovina)

Herceg-Bosna,
the accused
allegedly
treated
prisoners
inhumanely,
abused them
physically and
mentally, and
inflicted great
suffering on
them.
Petar
Mitrović,
Case No. X-
KR-05/24-1
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 29,
2008)
Hilmo
Vučinić

* Paul M.
Brilman
(Netherlands)

* Shireen
Avis Fisher
(United
States)

Criminal
Code of
Bosnia-
Herzegovina
GENOCIDE

Genocide (Art. 171, Criminal
Code of Bosnia-Herzegovina)

As a member
of Serb military
forces, the
accused
allegedly,
together with
others, helped
capture and
detain around a
thousand
Bosnian
Muslim
civilians in a
warehouse, and
then co-
perpetrated
genocide by
firing at them
and preventing
them from
escaping.
GUILTY = Imprisonment (38
years)

Accusatorial
Miladin
Stevanović,
Case No. X-
KR-05/24-2
(First
Instance
Verdict),
Hilmo
Vučinić

* Paul M.
Brilman
(Netherlands)

Criminal
Code of
Bosnia-
Herzegovina
GENOCIDE

Genocide (Art. 171, Criminal
Code of Bosnia-Herzegovina)

As a member
of Serb military
forces, the
accused
allegedly,
together with
others, helped
ACQUITTED

Accusatorial

229
State-Court
of Bosnia-
Herzegovina
(Jul. 29,
2008)
* Shireen
Avis Fisher
(United
States)

capture and
detain around a
thousand
Bosnian
Muslim
civilians in a
warehouse, and
then co-
perpetrated
genocide by
firing at them
and preventing
Trifunović et
al., Case No.
X-KR-05/24
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 29,
2008)
Hilmo
Vučinić

* Paul M.
Brilman
(Netherlands)

* Shireen
Avis Fisher
(United
States)

Criminal
Code of
Bosnia-
Herzegovina
GENOCIDE

Genocide (Art. 171, Criminal
Code of Bosnia-Herzegovina)

As a member
of Serb military
forces, the
accused (M.S.,
M.T., A.R.,
B.D., S.J.,
B.M., V.M.,
D.Ž., and
M.M.)
allegedly,
together with
others, helped
capture and
detain around a
thousand
Bosnian
Muslim
civilians in a
warehouse, and
then co-
perpetrated
genocide by
firing at them
and preventing
GUILTY (M.S.) = Imprisonment
(40 years)

GUILTY (M.T.) = Imprisonment
(42 years)

GUILTY (A.R.) = Imprisonment
(42 years)

GUILTY (B.D.) = Imprisonment
(42 years)

GUILTY (S.J.) = Imprisonment
(40 years)

GUILTY (B.M.) = Imprisonment
(40 years)

ACQUITTED (V.M.)

ACQUITTED (D.Ž.)

ACQUITTED (M.M.)
Accusatorial
Lazarević et
al., Case No.
X-KR-
06/243 (First
Mira
Smajlović

* Elizabeth
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS) (S.L.)

Killing, Torture, Inhumane
As members of
the Serb
reserve police
forces, the
GUILTY (S.L.) = Imprisonment
(10 years)

GUILTY (D.S.) = Imprisonment
Accusatorial

230
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Sept. 29,
2008)
Fahey
(United
States)

* Merja
Halme-
Korhonen
(Finland)

Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

accused (S.L.,
D.S., M.M.,
and S.O.)
allegedly
detained non-
Serb civilians
from the
Zvornik area
and treated
them
inhumanely,
inflicting
immense
suffering and
violation of
bodily integrity
on them.
(7 years)

GUILTY (M.M.) =
Imprisonment (5 years)

GUILTY (S.O.) = Imprisonment
(5 years)
Marko
Škrobić,
Case No. X-
KR-07/480
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Oct. 22,
2008)
Darko
Samardžić

Davorin Jukić

* Patricia
Whalen
(United
States)
Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)
As a member
of the military
forces of the
self-declared
Croatian
Republic of
Herceg-Bosna,
the accused
allegedly killed
a civilian.
GUILTY = Imprisonment (10
years)

Accusatorial
Božić et al.,
Case No. X-
KR-06/236
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Nov. 6,
2008)
Staniša
Gluhajić

* Merja
Halme-
Korhonen
(Finland)

* Georges
Reniers
(Belgium)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)
As members of
a Serb military
police unit, the
accused (M.B.,
Z.B., Z.Z., and
Z.Ž) allegedly
fired at
Bosnian
Muslim
civilians
detained in the
GUILTY (M.B.) =
Imprisonment (7 years)

ACQUITTED (Z.B.)

ACQUITTED (Z.Z.)

ACQUITTED (Z.Ž)

Inquisitorial

231

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
primary school
building after
witnessing
them appearing
at a window.
Zrinko
Pinčić, Case
No. X-KR-
08/502 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Nov. 28,
2008)
Minka Kreho

Tihomir
Lukes

* Marjan
Pogačnik
(Slovenia)

Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

As a member
of the military
forces of the
self-declared
Croatian
Republic of
Herceg-Bosna,
the accused
allegedly came
to a house were
Serb civilians
were captured
and on a
number of
occasions
raped a girl
being held
there.
GUILTY = Imprisonment (9
years)

Accusatorial
Miodrag
Nikačević,
Case No. X-
KR-08/500
(First
Instance
Verdict),
State-Court
of Bosnia-
Davorin Jukić

* Lars Folke
Bjur Nyström

(Finland)

* Patricia
Whalen
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
As a member
of Serb military
forces, the
accused
allegedly
defendant
raped several
civilians and
deprived one of
GUILTY = Imprisonment (8
years)

Accusatorial

232
Herzegovina
(Feb. 19,
2009)
(United
States)
Criminal Code of Bosnia-
Herzegovina)

her physical
freedom.
Savić et al.,
Case No. X-
KR-07/400
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Mar. 24,
2009)
Minka Kreho

Tihomir
Lukes

* Marjan
Pogačnik
(Slovenia)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY (S.K.)

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Extermination (Art. 172 (1) (b),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Holding the
office of the
Chief of the
Trebinje
Security
Service Center
and at the same
time as the
Minister of the
Interior of the
Serb
Autonomous
Region (SAO)
of
Herzegovina,
and as a
member of the
Staff of the
Ministry of the
Interior (MUP)
of the Republic
of Srpska in
charge of
command and
control over the
overall MUP
force, the
accused (S.K..)
allegedly
planned,
ordered and
carried out
persecution by
way of murder,
deportation and
forcible
transfer of
GUILTY (S.K.) = Imprisonment
(20 years) X

GUILTY (M.M.) =
Imprisonment (5 years and 3
months), in relation to Art. 172
(1) (h), (a), (b), (d), (e), (f), (i);
Art. 173 (1) (c), (e), (f)

ACQUITTED (M.M.), in
relation to Art. 172 (1) (h), (k)

Accusatorial

233
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)

WAR CRIMES (AGAINST
CIVILIANS) (S.K.)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

Forced Labor / Property
Confiscation / Requisitioning
(Art. 173 (1) (f), Criminal Code
of Bosnia-Herzegovina)

CRIMES AGAINST
HUMANITY (M.M.)

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Extermination (Art. 172 (1) (b),
population,
unlawful
imprisonment,
torture, rapes,
enforced
disappearances
and other
inhumane acts
of a similar
character
intentionally
causing great
suffering, or
serious injury
to body or to
physical or
mental health.
As a police
officer of the
SJB Nevesinje
Municipality,
the accused
(M.M.)
allegedly
carried out the
forcible
transfer of
population,
unlawful
imprisonment
and other
inhumane acts
of a similar
character
intentionally
causing great
suffering, or
serious injury
to body or to
physical or

234
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)

WAR CRIMES (AGAINST
CIVILIANS) (M.M.)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)
mental health;
the accused
(M.M.) also
allegedly
purchased and
possessed a
firearm,
ammunition,
explosive
substances and
other means of
combat that the
citizens are not
authorized to
purchase and
possess.

235

Forced Labor / Property
Confiscation / Requisitioning
(Art. 173 (1) (f), Criminal Code
of Bosnia-Herzegovina)
Novak Đukić,
Case No. X-
KR-07/394
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jun. 12,
2009)
Darko
Samardžić

Davorin Jukić

* Patricia
Whalen
(United
States)

Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Attack on Civilian Population
(Art. 173 (1) (a), Criminal Code
of Bosnia-Herzegovina)

Negligent Attack on Target which
results in Civilian Harm (Art. 173
(1) (b), Criminal Code of Bosnia-
Herzegovina)
In his capacity
as the
Commander of
the Ozren
Tactical Group
of the Army of
the Republic of
Srpska, the
accused
allegedly
ordered
shelling of the
town of Tuzla.
GUILTY = Imprisonment (25
years)

Accusatorial
Ferid
Hodžić, Case
No. X-KR-
07/430 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jun. 29,
2009)
Tihomir
Lukes

* Carol
Peralta
(Malta)

* David Re
(Australia)

Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

WAR CRIMES (AGAINST
PRISONERS OF WAR)

Killing, Torture, Inhumane
As the
Commander of
Bosnian
Muslim forces
in the
Municipality of
Vlasenica, the
accused
allegedly
ordered that
ethnic Serb
civilians and
prisoners of
war from the
Army of the
Republic of
Srpska be
unlawfully
apprehended
and held in a
stable, where
they were
ACQUITTED

Accusatorial

236
Treatment, Biological / Medical
Experimentation (Art. 175 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Suffering / Injury (Art. 175 (1)
(b), Criminal Code of Bosnia-
Herzegovina)
detained for
seven months
in inhumane
conditions
without
electricity,
heating,
appropriate
sleeping
conditions,
hygiene, and
were subjected
to inhumane
treatment by
soldiers from
Bosnian
Muslim forces.
Momir Savić,
Case No. X-
KR-07/478
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Jul. 3, 2009)
Šaban
Maksumić

Ljubomir
Kitić

* Snezhana
Botusharova-
Doicheva
(Bulgaria)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

As a member
of Serb military
forces and later
as a
commander
(3rd Company,
Višegrad
Brigade) of the
Army of the
Republic of
Srpska, the
accused
allegedly
persecuted
Bosnian
Muslim
civilians, in
conjunction
with
committing
murder,
forcible
resettlement,
GUILTY = Imprisonment (18
years)

Accusatorial

237
Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)
rape, detention,
and other
inhumane acts
committed
intentionally in
order to inflict
serious
physical and
mental injuries.
Ante Kovać,
Case No. X-
KR-08/489
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Mar. 24,
2009)

Šaban
Maksumić

Ljubomir
Kitić

* Snezhana
Botusharova-
Doicheva
(Bulgaria)

Criminal
Code of
Bosnia-
Herzegovina
WAR CRIMES (AGAINST
CIVILIANS)

Killing, Torture, Inhumane
Treatment, Biological / Medical
Experimentation (Art. 173 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

Forced Labor / Property
Confiscation / Requisitioning
(Art. 173 (1) (f), Criminal Code
of Bosnia-Herzegovina)
As the
commander of
a Brigade of
the military
forces of the
self-declared
Croatian
Republic of
Herceg-Bosna,
the accused
allegedly
unlawfully
incarcerated
people,
transported
them to
concentration
camps,
committed
rape, imposed
forced labor,
and plundered
property.
GUILTY = Imprisonment (13
years)

Accusatorial
Milorad
Trbić, Case
No. X-KR-
07/386 (First
Davorin Jukić

* Lars Folke
Bjur Nyström
Criminal
Code of
Bosnia-
Herzegovina
GENOCIDE

Genocide (Art. 171, Criminal
Code of Bosnia-Herzegovina)
As a reserve
Captain in the
Army of the
Republic of
GUILTY = Imprisonment (30
years)

ACQUITTED (in part)
Accusatorial

238
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Oct. 16,
2009)

(Note: Case
transferred
from the
ICTY under
Rule 11bis
procedure)
(Finland)

* Patricia
Whalen
(United
States)

Srpska, the
accused
allegedly
committed
genocide.

Predrag
Kujundžić,
Case No. X-
KR-07/442
(First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Oct. 30,
2009)
Šaban
Maksumić

* Carol
Peralta
(Malta)

* Marie Tuma
(Sweden)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Enslavement (Art. 172 (1) (c),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)
As the
commander of
Serb military
forces, the
accused
allegedly
incited and
knew, but did
not prevent,
killings and
severe
deprivations of
physical liberty
in
contravention
of the
fundamental
rules of
international
law; committed
sexual slavery;
rape;
persecution of
non-Serb
civilian
populations on
GUILTY = Imprisonment (22
years), in relation to Art. 172 (1)
(h), (a), (d), (e), (g), (k)

ACQUITTED, in relation to Art.
172 (1) (a), (f)

Accusatorial

239

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina

political,
national,
ethnical,
religious and
cultural
grounds; and
other inhuman
crimes
committed with
the intention of
inflicting great
suffering,
severe physical
injuries and
damage to
health.
Bundalo et
al., Case No.
X-KR-
07/419 (First
Instance
Verdict),
State-Court
of Bosnia-
Herzegovina
(Dec. 21,
2009)

Staniša
Gluhajić

Mira
Smajlović

* Carol
Peralta
(Malta)

Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST
HUMANITY
Persecution Against a Collectivity
[conjunction offense] (Art. 172
(1) (h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a),
Criminal Code of Bosnia-
Herzegovina)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
As
commanders of
Serb military
forces, the
accused (R.B.
and N.Z.)
allegedly
planned,
ordered,
perpetrated,
aided and
abetted the
persecution of
the entire
Bosnian
Muslim
population of
the Kalinovik
municipality by
way of killings,
forcible
transfer of
population,
extermination,
GUILTY (R.B.) = Imprisonment
(19 years), in relation to Art. 172
(1) (h), (a), (d), (e), (f), (g), (i),
(k); Art. 173 (1) (e), (f); Art. 175
(1) (b)

ACQUITTED (R.B.), in relation
to Art. 172 (1) (h), (g), (k)

GUILTY (N.Z.) = Imprisonment
(15 years), in relation to Art. 172
(1) (h), (a), (d), (e), (f), (g), (i),
(k); Art. 173 (1) (e), (f); Arts.
175 (1) (b)

ACQUITTED (N.Z.), in relation
to Art. 172 (1) (h), (g), (k)

Accusatorial

240
Criminal Code of Bosnia-
Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k),
Criminal Code of Bosnia-
Herzegovina)

WAR CRIMES (AGAINST
CIVILIANS)

Rape / Forcible Prostitution,
Intimidation / Terror, Hostage
Taking, Collective punishment,
Unlawful Detention, Deprivation
of Right to Fair Trial, Forcible
Service in Enemy Armed Service
(Art. 173 (1) (e), Criminal Code
of Bosnia-Herzegovina)

Forced Labor / Property
Confiscation / Requisitioning
(Art. 173 (1) (f), Criminal Code
of Bosnia-Herzegovina)

WCP: Suffering / Injury (Art. 175
(1) (b), Criminal Code of Bosnia-
Herzegovina)
unlawful
imprisonment,
torture, rapes,
enforced
disappearances,
arbitrary
destruction of
property on a
large scale,
starvation of
the population,
causing great
suffering and
injury to body,
by applying
measures of
intimidation
and terror and
other inhumane
acts of a
similar
character.
Bastah et al.,
Case No. X-
KR-05/122
(First
Instance
Verdict),
State-Court
of Bosnia-
Zoran Božić

Jasmina
Kosović

* Mitja
Kozamernik
(Slovenia)
Criminal
Code of
Bosnia-
Herzegovina
CRIMES AGAINST HUMANITY

Persecution Against a Collectivity
[conjunction offense] (Art. 172 (1)
(h), Criminal Code of Bosnia-
Herzegovina)

Murder (Art. 172 (1) (a), Criminal
Code of Bosnia-Herzegovina)
As members of
Serb military
forces (P.B.)
and the Army of
the Republic of
Srpska (G.V.),
the accused
allegedly
persecuted
GUILTY (P.B.) = Imprisonment
(22 years), in relation to Art. 172
(1) (h), (a), (d), (e), (i)

ACQUITTED (P.B.), in relation
to Art. 172 (1) (h), (d), (e), (i)

GUILTY (G.V.) = Imprisonment
Accusatorial

241
Herzegovina
(Feb. 4,
2010)

Deportation (Art. 172 (1) (d),
Criminal Code of Bosnia-
Herzegovina)

Imprisonment (Art. 172 (1) (e),
Criminal Code of Bosnia-
Herzegovina)

Torture (Art. 172 (1) (f), Criminal
Code of Bosnia-Herzegovina)

Sexual Intercourse through
Coercion (Art. 172 (1) (g),
Criminal Code of Bosnia-
Herzegovina)

Enforced Disappearance (Art. 172
(1) (i), Criminal Code of Bosnia-
Herzegovina)

Inhumane Acts Causing Injury or
Anguish (Art. 172 (1) (k), Criminal
Code of Bosnia-Herzegovina)
civilian
populations of
non-Serb
ethnicities on
political, ethnic
and religious
grounds by
killings,
unlawful
imprisonment,
psychological
and sexual
mistreatment,
enforced
disappearance,
torture and other
inhumane acts
committed with
the aim of
inflicting
injuries to body
or to mental
health.
(18 years), in relation to Art. 172
(1) (e), (f), (g), (i), (k)

ACQUITTED (G.V.), in relation
to Art. 172 (1) (h), (d), (e), (g),
(k)

------------------------------------------------------------------------------------------------------------------------------------------------------------------

242
APPENDIX XIV: Completed First Instance District and Cantonal Court Cases, Bosnia-Herzegovina (2004-2010)

------------------------------------------------------------------------------------------------------------------------------------------------------------------

COURT CASE PANEL

(* Indicates Lay
Judge)
CRIMINAL
CODE USED
OFFENSE

FACTS

(In cases
involving
multiple
accused and
differential
charging, the
initials of the
individual
accused is
included in
parentheses)
SENTENCE MODEL OF
ADJUDICATION
District
Court
Banja
Luka
(Republic
of Srpska)

Jakovljević et
al., Case No.
K-5/03 (First
Instance
Verdict),
District Court
Banja Luka
(Feb. 11,
2005)
Duško Bojović

Ibrahim Bubić

* Stipe Dizdar

* Petar Crnogorac

* Amir Bajrić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Attack on Civilian
Population (Art. 142,
SFRJ Criminal Code)
The accused
allegedly
ordered the
illegal
detention of
civilians.
ACQUITTED Inquisitorial
Radaković et
al., Case No.
K-50/01 (First
Instance
Verdict),
Duško Bojović

Tanja Bundalo

* Mila Medić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
The accused,
(D.R., D.K.,
and R.K.)
allegedly
acting as co-
GUILTY (D.R.)
= Imprisonment
(20 years)

GUILTY (D.K.)
Inquisitorial

243
District Court
Banja Luka
(Nov. 17,
2005)

* Amir Bajrić

* Vera Tomić
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)

perpetrators,
killed civilians.
= Imprisonment
(20 years)

GUILTY (R.K.) =
Imprisonment (15
years)
Nikola Dereta,
Case No. K-
37/05 (First
Instance
Verdict),
District Court
Banja Luka
(Dec. 5, 2005)
Daniela
Milovanović

Senad Tica

Biljana Majkić-
Marinković
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
The accused,
allegedly
acting as a co-
perpetrator,
attempted to
kill one
civilian, and
succeeded in
killing another
civilian.
GUILTY =
Imprisonment (13
years)
Inquisitorial
Milanko
Vujanović,
Case No. K-
99/00 (First
Instance
Verdict),
District Court
Banja Luka
(Mar. 9, 2006)
Daniela
Milovanović

Edina Čupeljić

* Nikola Petković

* Mileva Bekić

* Petra Crnogorac
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
The accused
allegedly (in
acting as a co-
perpetrator)
killed 5
civilians.

GUILTY =
Imprisonment (20
years)
Inquisitorial
Bulatović et
al., Case No.
011-0-K-06-
000-005 (First
Instance
Verdict),
District Court
Banja Luka
(May. 29,
2006)
Želimir Lepir

Duško Bojović

Redžib Begić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)

The accused
(Z.B., S.T.,
Z.G., D.B.,
R.V., and
M.T.) allegedly
killed two
civillians;
tortured other
civilians,
treated them
inhumanely,
terrorized
them, caused
them
GUILTY (Z.B.) =
Imprisonment (14
years)

GUILTY (S.T.) =
Imprisonment (12
years)

GUILTY (Z.G.) =
Imprisonment (10
years)

ACQUITTED
(D.B.)
Inquisitorial

244
psychological
suffering.

ACQUITTED
(R.V.)

ACQUITTED
(M.T.)
Đurić et al.,
Case No. 011-
0-K-06-000-
067 (First
Instance
Verdict),
District Court
Banja Luka
(Nov. 30,
2006)
Daniela
Milovanović

Želimir Lepir

Ibrahim Bubić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
The accused,
(P.Đ. and S.B.)
allegedly
acting as co-
perpetrators,
killed a
civilian.

GUILTY (P.Đ) =
Imprisonment (8
years)

GUILTY (S.B.) =
Imprisonment (7
years)
Inquisitorial
Boro Milojica,
Case No. 011-
0-K-06-000-
068 (First
Instance
Verdict),
District Court
Banja Luka
(Dec. 1, 2006)
Želimir Lepir

Marija Aničić-
Zgonjanin

Svetlana Marić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
The accused
allegedly killed
a civilian.

GUILTY =
Imprisonment (7
years)
Inquisitorial
Nikić et al.,
Case No. 011-
0-K-06-000-
074 (First
Instance
Verdict),
District Court
Banja Luka
(Feb. 19,
2007)
Daniela
Milovanović

Marija Aničić-
Zgonjanin

Ibrahim Bubić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)

Rape / Forcible
Prostitution,
Intimidation / Terror,
The accused,
allegedly
acting as co-
perpetrators,
wounded two
civilian, killed
five civilians,
and raped one
civilian.

ACQUITTED Inquisitorial

245
Hostage Taking,
Collective
punishment, Unlawful
Detention,
Deprivation of Right
to Fair Trial, Forcible
Service in Enemy
Armed Service (Art.
142, SFRJ Criminal
Code)
Petić et al.,
Case No. 011-
0-K-07-000-
044 (First
Instance
Verdict),
District Court
Banja Luka
(Oct. 19,
2007)
Želimir Lepir

Dragan Aćić

Svetlana Marić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
The accused
(G.P., Z.Đ.,
M.Đ., and
G.Đ.) allegedly
tortured,
intimidated,
and killed
civilians.

GUILTY(G.P.) =
Imprisonment (8
years)

GUILTY (Z.Đ.) =
Imprisonment (7
years)

GUILTY (M.Đ.)
= Imprisonment (6
years)

GUILTY (G.Đ.) =
Imprisonment (6
years)
Inquisitorial
Goran
Kalajdžija,
Case No. 11-
0-K-000004-
08 (First
Instance
Verdict),
District Court
Banja Luka
(Jul. 1, 2008)
Želimir Lepir

Svetlana Marić

Dragan Aćić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
The accused
allegedly
treated
civilians
inhumanely,
physically
abused them,
and intimidated
them.
GUILTY =
Imprisonment (2
years)
Inquisitorial
Zgonjanin et
al., Case No.
011-0-K-08-
000-026 (First
Instance
Želimir Lepir

Dragan Aćić

Srđan Forca
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
The accused
(M.Z. and
N.Z.), allegedly
acting as co-
perpetrators,
GUILTY (M.Z.) =
Imprisonment (4
years)

GUILTY (N.Z.) =
Inquisitorial

246
Verdict),
District Court
Banja Luka
(Nov. 25,
2008)
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
killed four
civilians.

Imprisonment (3
years)
Dobrnjac et
al., Case No.
11-0-K-
000783-09-K
(First Instance
Verdict),
District Court
Banja Luka
(May. 25,
2009)
Olga Malešević

Želimir Lepir

Dragan Aćić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
The accused
allegedly
injured a
civilian, who
subsequently
died as a result
of the injury.

ACQUITTED Inquisitorial
Berbić et al.,
Case No. 11-
0-K-000859-
09-K (First
Instance
Verdict),
District Court
Banja Luka
(Jun. 15,
2009)
Olge Malešević

Srđan Forca

Nermana Samardžić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Attack on Civilian
Population (Art. 142,
SFRJ Criminal Code)

WAR CRIMES
(AGAINST
PRISONERS OF
WAR)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
144, SFRJ Criminal
Code)

Suffering / Injury
(Art. 144, SFRJ
Criminal Code)
The accused
(S.B. and Ć.B)
allegedly
treated
civilians and
prisoners of
war
inhumanely,
imposed
detention on
them; harming
their physical
integrity and
their dignity by
abusing and
torturing them;
intimidated
them; and
killed two of
them.

GUILTY (S.B.) =
Imprisonment (12
years, 6 months)

GUILTY (Ć.B.) =
Imprisonment (13
years, 6 months)
Inquisitorial
Gagić et al.,
Case No. 011-
Olga Malešević

SFRJ Criminal
Code
WAR CRIMES
(AGAINST
The accused,
allegedly
GUILTY =
Imprisonment (10
Inquisitorial

247
0-K-08-000
039 (First
Instance
Verdict),
District Court
Banja Luka
(Jul. 3, 2009)
Božana Vulić

* Draga Mijatović

* Petar Crnogorac

* Mileva Bekić
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biological / Medical
Experimentation (Art.
142, SFRJ Criminal
Code)
acting as a co-
perpetrator,
killed two
civilians.

years)
Žarko
Vujanović,
Case No. 11-
0-K-001562-
09-K (First
Instance
Verdict),
District Court
Banja Luka
(Oct. 20,
2009)
Vesna Stanković
Ćosović

Daniela
Milovanović

Nermana Samardžić
SFRJ Criminal
Code
WAR CRIMES
(AGAINST
CIVILIANS)

Killing, Torture,
Inhumane Treatment,
Biolog