Prof James A. Sweeney
Over the last month I’ve done work in Turkey and London with the Kosovo judiciary, and spoken by invitation at a conference on ‘transitional cosmopolitanism’ in Oslo. In this post I’ll try to set out what connects these activities, and offer a comment upon a recent European Court of Human Rights case.
There are some real difficulties in the administration of justice in the former Yugoslavia. At present I am involved in two projects in Kosovo, funded by the UK Foreign and Commonwealth Office, and delivered via RIPA International (the successor to the Royal Institute for Public Administration): improving capacity in the Kosovo Judicial Institute (which trains new judges and prosecutors); and continuing training for the judges of the Kosovo Constitutional Court and Supreme Court.
In both of these projects I am helping the judiciary in Kosovo, and its trainers, to understand and apply European and international human rights law. There is a sense in which belonging to the international community, and especially applying international human rights law, leads to a form of cosmopolitan legal community: where common principles are incorporated, exchanged, and evolved. I was part of an important discussion of the benefits and perils of such cosmopolitanism as a guest of the Pluri-Courts project at the University of Oslo the week before my work with Kosovo Judicial Institute, in March. Together with speakers including Andreas Føllesdal, Asbjørn Eide, Patrick Glenn, Sabino Cassese, and Ruti Teitel, we examined both the notion of transition and the notion of cosmopolitanism.
To give you a sense of the dilemma, we can think about how the ‘Radbruch formula’, emanating from post-World War II Germany, became synonymous with the removal of legal barriers to the prosecution of war criminals and the perpetrators of crimes against humanity, even if such prosecutions and trials were retroactive (Lancaster’s Agata Fijalkowski has written on this also). However, when the European Convention on Human Rights came into force on the 3rd September 1953 it guaranteed a prohibition on retroactive prosecution and punishment (although it permits prosecutions based on existing international law, even where the offence did not exist in domestic law: see Article 7 ECHR).
In a series of cases involving post-cold war prosecutions of leaders and border guards responsible for deaths at the Berlin Wall, the European Court found that the German prosecutions and convictions were not retroactive: the offences were made out in both domestic and international law. This was despite applicants to the ECHR claiming that they could never have foreseen that their actions would ever result in prosecution (see the 2001 cases of Streletz, Kessler and Krenz, and K –H W: these are discussed in detail in my recent book). The striking part of these cases was that the European Court accepted the argument that Germany could radically re-interpret former East German law, in such a way that the actions at the Berlin Wall could safely be said to have been prohibited in domestic law at the time they took place. This despite the fact that the leaders had purported to alter those rules, and that soldiers were regularly rewarded – not punished – for killing ‘border violators’. Rather than explicitly citing the Radbruch Formula, the European Court attempted to assimilate its reasoning with other non-transitional cases about the judicial clarification of criminal liability.
Fast forward to 2013, and we have the case of Maktouf and Damjanović v. Bosnia and Herzegovina. Here two convicted war criminals challenged their sentence on grounds of non-retroactivity. Both were sentenced according to the 2003 Criminal Code, rather than the 1976 Criminal Code that was in effect when they committed their offences. In situations like this, where potentially two clashing laws could have been applied, there is a presumption that in order to avoid retroactivity, the lex mitior – the more lenient law – should be applied. Bosnia and Herzegovina argued that the 2003 law was more lenient because it did not allow for the death penalty (but which had in any event ceased to be applied, and would not have arisen for the crimes at issue). However the 2003 Code was more strict when it came to lesser offences, such as the ones that really were at issue, and so the European Court found a violation of Article 7 ECHR. It did not given compensation, and did not require a re-trial.
Here’s what’s interesting: Bosnia and Herzegovina cited the German border guard cases as authority for the proposition that the principle of non-retroactivity could be ‘set aside’ in the interests of justice, and in ‘certain historical situations’. In other words, they sought assistance from the Radbruch Formula. The European Court denied it had ever countenanced such a perspective. However the argument by Bosnia and Herzegovina was by no means ill-founded, and in my book I have observed a range of circumstances in which the European Court has given considerable leeway to transitional states to address the actions of a prior regime without violating the European Convention. These claims for special treatment can be termed claims for ‘transitional relativism’ – by analogy to states claiming special treatment on cultural, or culturally relativist, grounds.
So where does this leave us? It shows that domestic judiciaries in transitional states may struggle within a whirlpool of conflicting cosmopolitan influences including but not limited to, domestic approaches such as the Radbruch Formula, and international advice from the European Court of Human Rights. However the real tragedy in this case was that – and even though the European Court certainly did not require or even recommend it – Bosnia and Herzegovina has released a swathe of war criminals pending re-trial, including people who were convicted of genocide at Srebrenica.
James A. Sweeney (@James_Sweeney_) is Professor of International Law in the Law School at Lancaster University. He has published widely in the areas of human rights and refugee law, and is the author of The European Court of Human Rights in the Post-Cold War Era: Universality in Transition, the first monograph to examine transitional justice in the jurisprudence of the ECHR. His work on the human rights of failed asylum seekers,  Public Law 277-301, has the distinction of being cited with approval both by the House of Lords and the Court of Appeal, in the cases of R (on the application of M) v Slough BC  UKHL 52, , and SL v Westminster City Council  EWCA Civ 954, .
You can find out more about James’ research at http://www.lancaster.ac.uk/fass/law/profiles/james-sweeney