The courts of Bosnia and Herzegovina use three types of criminal code for war crimes cases: the Criminal Code of Bosnia and Herzegovina (March 2003), the Criminal Code of the Socialist Federal Republic of Yugoslavia (in force during the conflict), and the interim 1998 Federation of Bosnia and Herzegovina Criminal Code. The Constitutional Court of Bosnia and Herzegovina has stated that the use of different criminal codes undermines the rule of law and the equal treatment of citizens. It has urged the courts to use the Criminal Code of Bosnia and Herzegovina. The Council of Europe has also expressed its concern with the lack of harmonisation of the law applicable to war crimes.
The report argues that applying the Criminal Code of Bosnia and Herzegovina in all domestic war crimes proceedings will lead to a more effective administrative system of justice and can enhance the consistency of sentencing throughout the country. According to the report the Criminal Code of Bosnia and Herzegovina is better able to address the serious violations of humanitarian law and human rights during the conflict and the criminal responsibility of individuals of the violations, because it acknowledges the developments in international criminal law in the statutes of the ICTY and ICC by incorporating ‘crimes against humanity’ and a comprehensive definition of ‘command responsibility’. The report states that since the Criminal Code provides for the notion of crimes against humanity the problem of defining the nature of the conflict can be overcome by courts. Use of the 2003 Criminal Code will also put an end to the discrepant sentencing practices which currently reflect the different sentencing standards of the various criminal codes.
At the end of the report the OSCE recommends that the prosecutors and courts apply the Criminal Code of Bosnia and Herzegovina, that those involved in prosecuting and ruling receive training in international humanitarian law and jurisprudence, and that the state establishes a state-level judicial institution as the final authority on interpretation and application of the laws pertaining to war crimes to promote consistency in practices.