Updated: Aug 1, 2020
Extradition matters, more often than not, aid in regional co-operation. War crimes are considered as an exception when it comes to such matters. They are protected under the umbrella of political offences which again form an exception to extradition requests. In such situations, the alleged criminals are not extradited back to the requesting country. However, the trial and prosecution of such criminals vary from state to state even if they are not extradited.
The case of Osman Osmanovic is one such example of exercising the exception of war crimes. Osmanovic, a Bosnian citizen was arrested in November 2019 on Serbia-Bosnia border and remanded custody. Bosnia asked for him to be extradited back but Serbia clearly refused. As per Osmanovic’s lawyer; the crime was committed in Bosnia, the evidence and the witnesses are also in Bosnia and thereby, there is no reason for Serbia to take cognizance of the matter and it investigates it as per its own laws. So far, however, Serbian War Crimes Prosecution has been in charge of carrying out the investigation into the alleged crimes committed by Osman Osmanovic.
Law on Organization & Competence of Government Authorities in War Crimes Proceedings:
Article 2(2) of the Law on Organization and Competence of Government Authorities in War Crimes Proceedings states that:
This law shall apply in detecting, prosecuting and trying: (2) serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1 January 1991. stipulated in the Statute of the International Criminal Tribunal for the former Yugoslavia.
Now, the former Yugoslavia comprised Croatia, Serbia and Bosnia & Herzegovina and the crime for which Osmanovic has been convicted was also committed on the former “Yugoslavian” territory. Hence as per this article, Serbia has the authority to try and prosecute Osmanovic as per the Serbian laws. The nationality of the suspect/victim and whether the suspect was present on the territory of Serbia are some factors that shall not be considered for the trial and prosecution of the suspect. This is backed by a statement made by Red Cross which stated that: “States have the right to vest universal jurisdiction in their national courts over war crimes.
Article 9 of the same law gives the District Court of Belgrade the power to try offences mentioned in Article 2 and subsequently Article 10 calls for the establishment of a War Crimes Panel within such court that shall have exclusive jurisdiction for the criminal offences referred to in Article 2. Thus, Serbia clearly lays down its power and jurisdiction for the trial of such offences. Accordingly, Osman Osmanovic is being tried in the High Court of Belgrade.
Article 2(1) of the Law on Mutual Assistance in Criminal Matters provides for mutual assistance in extradition of defendants or convicted persons. Article 7 of the same law provides for the “Preconditions to the execution of requests for mutual assistance”. Article 7(4) states that such a request should not refer to political offences or any other offences relating to it. Article 16 then adds a few more conditions that shall be applicable only in the matters pertaining to extradition. Article 16(3) mentions that the person with respect to whom extradition is demanded should not have been prosecuted for the same offence in the Republic of Serbia. Both of these conditions were not fulfilled by Bosnia. War crimes form a part of “political offence” and therefore failed to come under Article 7(4). Similarly, the prosecution of Osman Osmanovic started prior to the extradition request made by Bosnia. Hence, it could not fulfil the conditions required by Article 16 either.
As per Article 28, if the preconditions under Article 7 and Article 16 are not fulfilled then extradition of the alleged can be refused, which Serbia did in this situation. This again is substantiated by Article 33(1) wherein the Minister of Justice shall have the power to refuse extradition. Even, Article 41 gives Serbia the right to prosecute any suspect or defendant falling within its jurisdiction and the term “jurisdiction” for Serbia included the former state of Yugoslavia as mentioned earlier. However, Article 51(1) and 51(3) could have worked out in favour of Bosnia & Herzegovina if the conditions stipulated in Article 7 had been met. Article 51(1) provides that the person resides in the requesting state and Article 51(3) provides for ease of carrying out proceedings in the requesting state. Article 51(3) is the law that has been perpetually relied on by Osmanovic’s lawyer to extradite him back to Bosnia & Herzegovina. Article 51 refers to conditions for the transfer of criminal prosecution.
As far as Bosnia’s stand for extraditing its citizen back is concerned, it has a weak legal backing to successfully extradite Osmanovic back. Furthermore, it does not have any detailed laws when it comes to extradition. However, the best option for both countries, for now, can include prosecution of Osmanovic by the International Criminal Tribunal for former Yugoslavia. This Tribunal cannot decide on extradition disputes for lack of jurisdiction over states. However, it has the jurisdiction to decide cases against individual persons for any of the crimes mentioned in Article 2 to Article 5 of the International Criminal Tribunal of the former Yugoslavia’s statue. War crimes come under the ambit of these articles and hence the case can always be transferred to the Tribunal if Bosnia isn’t quite satisfied with Serbia’s refusal of its extradition request and wants to consider an alternative option. Even though this will add on to the already building number of cases, it definitely brings out the possibility of the alleged convict being tried with justice and equity, without relying specifically on its good relations with anyone Balkan country.