Amnesty laws in Bosnia and Herzegovina

The central authorities in Bosnia and Herzegovina and the respective governments of the two entities have passed amnesty laws:

•           National Amnesty Law was passed by the parliament of the Republic of Bosnia and Herzegovina and came into force on 24 February 1996

•           Federal Amnesty Law was passed by the Federation parliament and came into force on 1 July 1996

•           Republika Srpska(RS) Amnesty Law was passed by the RS parliament and came into force 4 July 1996.

In addition, the Bosnian Croat (so-called "Herzeg-Bosna") authorities passed an Amnesty Law on 13 September 1996, although it should be noted that these authorities and their laws are not internationally recognised.

Geographical scope

The Federal and RS Amnesty Laws apply in the respective entities. The National Amnesty Law is not currently being applied in the entire territory of Bosnia and Herzegovina: it will not apply in Republika Srpska until it has been passed by the appropriately elected parliament and, it is not clear whether it is being applied in Bosnian Croat majority areas ("Herzeg-Bosna").

Time frame

The National Amnesty Law applies to offences committed up to 14 December 1995. The RS Amnesty Law applies from 1 January 1991 to 14 December 1995. As the state of war ended on 22 December 1995, there was some concern that the 7 day time gap may prove to be a loophole. However, both the central and RS authorities have indicated that they are prepared to extend the law up to 22 December 1995. The Federation authorities have already amended their amnesty law to cover offences committed up to 22 December 1995.

UNHCR is also concerned that where an offence is of an ongoing status (e.g. being a member of the enemy's army, a draft evader or deserter) which might not expire with the end of the war, the offender would still be liable for punishment. For example, someone might be considered a deserter until the precise unit s/he deserted has demobilized, and the demobilization process did not end with the war but continued well into 1996. UNHCR has not received adequate assurances from any of the authorities that such ongoing offences will be covered by the amnesty.

Offences covered

The National, Federal and RS amnesty laws cover criminal acts against the social order and security of Bosnia and Herzegovina (or RS); criminal acts against the (respective) military forces; and criminal acts of propagating false information and illegally possessing arms and explosive materials. The National and Federal laws provide amnesty for draft evasion and desertion. The RS law does not provide amnesty for RS citizens for draft evasion or desertion. According to current RS citizenship laws this essentially means that Serbs are not amnestied for the offences of draft evasion and desertion while non-Serbs are. The RS law also denies amnesty to persons who've committed the above-mentioned acts if in so doing pre-meditated murder is committed.

All 3 amnesty laws apply ex officio in that no action is required on the part of the individual in order to benefit from the amnesty. However the condemned/sentenced person or a person acting on behalf of the accused (legally defined) can request that the decision on amnesty be made.

It should be noted that persons being granted amnesty for draft evasion or desertion will nevertheless be required to complete compulsory military service.

Implementation

The National Amnesty Law has been applied to 31,044 persons as at 17 September 1996: 14,891 for desertion; 10,055 for draft evasion; 5,189 for criminal acts of "attack on constitutional order". The current Federal amnesty law is not being applied anywhere in the Federation as the appropriate Federal institutions have not been established. UNHCR has received some sketchy information that the RS amnesty law is being implemented in several locations.

Assessment

Both the National and Federal laws generally provide a comprehensive amnesty, other than the concerns raised above. The Republika Srpska law is seriously flawed regarding the offences covered and requires significant amendment. Nonetheless, thousands of people have been released under the terms of the respective Amnesty Laws or had proceedings against them stopped. However, UNHCR has received some reports of people being charged with new offences, once the original charge was amnestied, in order to ensure that they remain in detention.

In addition, the application of all three laws is being circumvented by the respective authorities with accusations of war crimes. As noted above, amnesty does not apply for charges of war crimes or genocide. Throughout the war, thousands of people have been charged with these crimes and had warrants for arrest issued against them. In practice, the majority of charges are unsubstantiated and are brought against large groups of people at one time, e.g. one charge may contain the names of 400 people accused of the same offence. These "lists"have not been made public and thus generate fear amongst the general population, acting as a deterrent to freedom of movement. Numerous people have been arrested on the basis of these charges, held for investigation for 72 hours and then released for want of evidence. However, the beatings frequently sustained during the investigation ensure that further movement is discouraged. UNHCR is currently seeking better information as to the extent of the above methods of circumventing the application of amnesty.

The Office of the Federation Ombudsman has confirmed that it is aware of a number of cases of the circumvention of the amnesty through arbitrary arrests on the basis of war crimes "charges"as well as some instances of the non-implementation of the amnesty e.g the Military Court has not issued decisions which it is required to do automatically for persons it has already sentenced if they have not asked for such a decision personally.

It remains unclear which amnesty provisions are being applied in Bosnian Croat areas.

Amnesty Law in Croatia

General

The law on General Amnesty came into force on 5 October 1996 and covers perpetrators of criminal acts committed during or in relation to the aggression, armed rebellion or armed conflict during the period 17 August 1990 to 23 August 1996 (date of signing of the Normalization Agreement between the Federal Republic of Yugoslavia and Croatia). It excludes criminal acts against humanity and international law, acts of terrorism and criminal acts not committed as part of the aggression or armed rebellion. The amnesty will not automatically benefit those sentenced "in absentia": such persons must return to Croatia and submit a renewal of the court procedure within one year of the entry into force on the law on General Amnesty.

Assessment

The text of the amnesty law is generally considered to be satisfactory and an improvement on previous amnesty laws in terms of its comprehensive scope. For example, the clarification that all criminal acts related to the war are covered by the law on general amnesty has curbed the practice of adding to the list of criminal acts not covered by the amnesty and thereby trying people on other charges. There must be close monitoring to ensure that the provision for the exclusion of war crimes is implemented fairly as there is much tension and concern that this provision is being used to detain persons on apparently unsubstantiated war crimes charges. The Ministry of Justice has reportedly released a list of 811 persons suspected of being war criminals of which only 50 have been sentenced with the remainder being persons under investigation. In some cases war crimes charges are being laid after the person has already been amnestied for an earlier offence.

Amnesty Law in Federal Republic of Yugoslavia

General

The amnesty law which came into force on 22 June 1996 grants amnesty for acts of draft evasion and desertion (Articles 214 and 217 of the Federal Criminal Code) but does not cover a number of related military offences and does not apply to those falling into the professional officer category. It is valid for offences committed up to 14 December 1995.

Assessment

It remains to be seen whether the exceptions to amnesty in terms of offences and categories of person lead to a serious cause for concern.

As far as implementation of the law is concerned, information received by UNHCR from the NGO community indicates that some 50 draft evaders and deserters have been released and court proceedings dropped against some 12,000 to 13,000 persons. There is no available information indicating that the amnesty law is not being respected in the country as a whole. Nevertheless there are reports from the Kosovo Albanian NGO community stating that an unspecified number of Kosovo Albanians suspected of desertion are being summoned and interrogated by the police. Harassment may occur in these circumstances. There are no actual cases of Kosovo Albanians being indicted or convicted for draft evasion or desertion after the entry into force of the amnesty law. It should be noted that draft evaders and deserters will have to complete military service upon return to FRY.

 

SOFY
21 January 1997

Disclaimer: © UNHCR