2013 | ‘The Impact of the ECHR’s Judgment in Maktouf-Damjanovic on Accountability and Punishment for War Crimes in Bosnia and Herzegovina’ by F. De Sanctis, Blog of the European Journal of International Law (EJIL: Talk!) 12 Nov 2013
This commentator considers the ECHR’s recent decision in Maktouf (see our Cases page in this section) to be ‘questionable from the point of view of compliance with generally recognized rationales and principles in sentencing.’ He points out that application of the Yugoslavia’s 1976 Criminal Code rather than Bosnia and Herzegovina’s new 2003 Criminal Code, in the case of very serious human rights violations, could result in relatively mild sentences by comparison with those imposed for similar types of crimes committed in peacetime. This would ‘send a clear message that crimes committed during a conflict are less serious and more forgivable than those committed in ordinary times.’ In addition, there are no provisions relating to ‘crimes against humanity’ in the 1976 Code. These crimes then can only be prosecuted on the basis of the later code. According to the author, the status of the prohibitions on retroactive criminalization and anachronistic sentencing practices are not yet settled in International law and can be seen to be still evolving in the very recent case law of the ECHR itself. You can read the whole commentary here.