# Foundational texts — WCC-BiH

## 1. Law on the Court of Bosnia and Herzegovina

**Adopted:** Parliament of BiH, **3 July 2002**.
**Originally promulgated by:** OHR Decision of 12 November 2000 (under the OHR's "Bonn powers"); subsequently adopted by Parliament.
**Official Gazette of BiH:** consolidated text 49/09 (with subsequent amendments).

**Function:** establishes the Court of BiH as a state-level court. Its Criminal Division is organised into three sections:
- **Section I — War Crimes**
- **Section II — Organized Crime, Economic Crime and Corruption**
- **Section III — General Crime**

Establishes the Appellate Division with corresponding sections. Provides for international judges during the transition period (programmed phase-out by 2009/2012).

**Note on the three-section structure:** Section I (War Crimes) was **not** part of the original 2002 Law — it was introduced by the **amendment of December 2004** (the Registry for Section I was established on 1 December 2004), which is why the War Crimes Chamber only began operations on **9 March 2005**.

## 2. Law on the Prosecutor's Office of Bosnia and Herzegovina

Establishes the Prosecutor's Office of BiH, which includes the **Special Department for War Crimes (SDWC)**. The SDWC has exclusive competence to issue indictments for cases tried before Section I of the Court of BiH.

## 3. Criminal Code of Bosnia and Herzegovina

**Adopted:** 2003.
**In force from:** **1 March 2003**.
**Official Gazette of BiH:** 3/03 (with amendments — most recently 8/10, 47/14, 22/15, 40/15, 35/18, 46/21, 31/23).

Key chapters for WCC-BiH:
- **Chapter XVII — Criminal Offences against Humanity and Values Protected by International Law** — defines genocide (Art. 171), crimes against humanity (Art. 172), war crimes (Arts. 173-179), torture (Art. 190 in some classifications), and other offences against international law

**Critical issue — temporal application:** the 2003 Criminal Code is applied by the WCC-BiH to conduct from the 1992-1995 conflict. The European Court of Human Rights in **Maktouf and Damjanović v. BiH** (Grand Chamber, 18 July 2013) held that this **violated Article 7 ECHR** in cases where the 1976 SFRY Criminal Code (in force at the time of the conduct) prescribed lighter sentences. See Trap 1 in `verification-workflow.md`.

## 4. Criminal Code of the SFRY (1976) — "the old Code"

**Adopted:** 1976 (with amendments through 1990).
**Status in BiH:** applied transitionally and, post-*Maktouf*, increasingly recognised as the **applicable law** for 1992-1995 conduct where its application produces a more favourable result for the accused under the *lex mitior* principle.

Key provisions for WCC-BiH practice:
- **Chapter XVI — Criminal Acts Against Humanity and International Law** — defines genocide (Art. 141), war crimes (Arts. 142-145), among others
- Generally provides **lower maximum sentences** than the 2003 Code, which is the source of the Article 7 ECHR issue

## 5. Criminal Procedure Code of Bosnia and Herzegovina

**Adopted:** 2003.
**Official Gazette of BiH:** 3/03 with subsequent amendments.

Defines proceedings before the State Court of BiH, including:
- Pre-trial investigation by the Prosecutor's Office
- Indictment and its confirmation by the Court
- Trial procedure (panels of 2 international + 1 national during phase I; fully national from 2009)
- Appellate procedure
- Witness protection (Articles 86-90, with implementing rules)
- Rights of victims

## 6. Rules of Procedure and Evidence of the Court of Bosnia and Herzegovina

Internal court rules supplementing the Criminal Procedure Code. Address case-management, language, evidentiary matters specific to international crimes.

## 7. National War Crimes Processing Strategy

**Adopted:** BiH Council of Ministers, **December 2008**. Revised 2018 and 2020.

**Function:** governs the **allocation of war crimes cases** between the State Court (Section I) and entity/cantonal courts (FBiH, RS, Brčko). Sets criteria:
- **State Court (Section I)** — most complex, highest-priority cases (typically involving high-ranking accused, large-scale events, multiple victims, cross-entity scope)
- **Entity/cantonal courts** — less complex cases

**Timeframes** (significantly revised over time):
- Most complex cases: originally 7 years (2008-2015), repeatedly extended
- Other cases: originally 15 years (2008-2023), partially achieved

**Why this matters:** the WCC-BiH is **not the only forum** for BiH war crimes prosecutions. The National Strategy is the operative document determining which cases go where. Citations to "Bosnian war crimes prosecutions" must specify the **level** (state vs entity/cantonal) — see Trap 4 in `verification-workflow.md`.

## 8. ICTY Rules of Procedure and Evidence — Rule 11 bis

**The rule governing referrals from ICTY to national jurisdictions.** Introduced in 2002 as part of the ICTY Completion Strategy. The Referral Bench of the ICTY (and later the IRMCT) considers whether a case can be referred to a national jurisdiction based on:
- The gravity of the crimes (lower- and mid-level accused only)
- The likelihood of a fair trial
- The applicable death penalty issues
- Conditions on monitoring and reporting

**Rule 11 bis cases referred to BiH:**
- *Stanković* (referred 2005, tried at WCC-BiH)
- *Janković* (referred 2005, tried at WCC-BiH)
- *Mejakić et al.* (referral ordered 20 July 2005, transferred 2006, tried at WCC-BiH)
- *Trbić* (referred 2007, tried at WCC-BiH)
- *Rašević and Todović* (referred 2006, tried at WCC-BiH)
- *Lukić and Lukić* (referred 2007, **referral revoked 2007**, returned to ICTY)

## 9. Constitution of Bosnia and Herzegovina (Dayton Agreement Annex 4)

The constitutional framework within which the Court of BiH operates. Article III divides competences between the State and the Entities; the Court of BiH's state-level jurisdiction over war crimes derives from this framework.

## Working with foundational texts in project knowledge

Recommended workflow:
1. Add the **Law on the Court of BiH** for institutional questions.
2. Add the **Criminal Code of BiH 2003** for substantive law questions.
3. For temporal-application questions, also add the **SFRY Criminal Code 1976** and the **Maktouf and Damjanović v. BiH** ECHR Grand Chamber judgment of 18 July 2013.
4. Add the **National War Crimes Processing Strategy** for case-allocation questions.
5. Add the **ICTY RPE Rule 11 bis** for referred cases.

If not in project knowledge, retrieve from sudbih.gov.ba or legal-tools.org.