Related Rule
Bosnia and Herzegovina
Practice Relating to Rule 99. Deprivation of Liberty
The Federation of Bosnia and Herzegovina’s Criminal Code (1998) provides that “illegal arrests and detention” are war crimes. 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 154(1).
The Republika Srpska’s Criminal Code (2000) contains the same provision. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 433(1).
Bosnia and Herzegovina’s Criminal Code (2003) criminalizes the following acts as a crime against humanity:
Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack, perpetrates any of the following acts:
e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 172(1)(e).
The Criminal Code also states that, in time of war, armed conflict or occupation, ordering or committing “unlawful confinements in concentration camps and other illegal arrests and detention”, in violation of international law, constitutes a war crime. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 173(1)(e).
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[I]n order to establish the crime of imprisonment as a crime against humanity, the following elements must be established: i) an individual is deprived of his or her liberty; ii) the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; iii) the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty, or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty … [T]he deprivation of physical liberty … imposed arbitrarily without any legal basis … constitutes the crime of imprisonment or other deprivation of liberty in violation of basic rules of international law. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Janković case, Judgment, 23 October 2007, p. 14.
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
Police may deprive a person of liberty if there are grounds for suspicion that he may have committed a criminal offence and if there are any of the reasons as referred to in Article 132 of this Code [Grounds for Pre-trial Custody], but they must immediately, but no later than 24 hours, bring that person before the Prosecutor. In apprehending the person concerned, the police authority shall notify the Prosecutor of the reasons for and time of the deprivation of liberty. Use of force in accordance with law is allowed when apprehending the person. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 139(1); see also Article 134(1)–(3).
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
The elements of “imprisonment” as a crime against humanity are as follows: “an individual is deprived of his or her liberty; the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty” [ICTY, Krnojelac case, Judgement, 15 March 2002, para. 115].
The Court notes that imprisonment of civilians is unlawful where: “civilians have been detained in contravention of Article 42 of the [1949] Geneva Convention IV, i.e. that they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; the procedural safeguards required by Article 43 of the IV Geneva Convention are not complied with in respect of detained civilians, even where initial detention may have been justified; and the imprisonment occurs as part of a widespread or systematic attack against a civilian population” [ICTY, Kordić and Čerkez case, Appeals Chamber Judgement, 17 December 2004, para. 114].
The Court also considers that “… deprivation of an individual’s liberty is arbitrary if imposed without due process of law. The Trial Chamber outlined the following elements to establish a crime of imprisonment (or unlawful confinement) as a crime against humanity … : an individual is deprived of his or her liberty; the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty”. [ICTY, Simić case, Judgement, 17 October 2003, para. 64].
The Court considers that the deprivation of liberty of the individual without the due process of law is a distinctive element of the definition of imprisonment. Indeed, the ICTY Appeal Chamber noted that it “agrees with the Trial Chamber’s finding that the term imprisonment in Article 5(e) of the statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without the due process of law, as part of a widespread and systematic attack directed against the civilian population” [ICTY, Kordić and Čerkez case, Appeals Chamber Judgement, 17 December 2004, para. 116]. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 51–52.
The Court also held:
It is true that the Geneva Conventions and their additional protocols, in case of an armed conflict, both international and non-international, provide for internment and assigned residence as possible measures to be taken. But this exceptional measure is subject to many guarantees that must be met … Indeed, the Court emphasizes that these measures must be “absolutely necessary for the State security”. This is implied under the general principle that personal liberty is a rule and that criminal justice system is able to deal with persons suspected of representing a danger to State security. Another guarantee provided by Article 78 of the [1949] Fourth Geneva Convention and Article 4(2)(b) of the [1977] Additional Protocol II, consists in the prohibition of internment as a collective punishment, meaning that this internment can only be ordered on a case-by-case basis, and not as a collective measure. Also, the principle of legality implies that where a State decides to derogate the right to liberty, such a decision must, inter alia, be officially proclaimed so as to enable the affected population to know the exact material, territorial and temporal scope of application of that emergency measure. Furthermore, “internment” implies the right to be informed about the reasons for such a measure and to be registered and held in a recognized place of internment, with a right to challenge the lawfulness of the detention …
The Court concludes that … none of the required guarantees for internment have been respected. The Court further concludes that the detention at issue was not “interment” but proper unlawful imprisonment. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 67–68.
[footnotes in original omitted]
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states: “A person deprived of liberty must, in his native tongue or any other language that he understands, be immediately informed about reasons for his apprehension and instructed on the fact that he is not bound to make a statement”. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 5(1); see also Article 78(2).