Bosnia and Herzegovina
Practice Relating to Rule 155. Defence of Superior Orders
Bosnia and Herzegovina’s Criminal Code (2003) states: “The fact that a person acted pursuant to an order of a Government or of a superior shall not relieve him of criminal responsibility, but may be considered in mitigation of punishment if the court determines that justice so requires.”
The Criminal Code, as amended in 2006, also states:
There shall be no criminal offence if its legal elements are met by a subordinate pursuant to an order from his superior and that order is given in the line of official duty, except if such an order relates to the perpetration of genocide, war crimes, crimes against humanity or another criminal offence for which a punishment of imprisonment for a term of ten years or a more severe punishment may be imposed, or if it is obvious that by obeying such an order a criminal offence would be perpetrated.
In the Halilović case
in 1998, the Doboj District Court (Republika Srpska of Bosnia and Herzegovina) upheld a Municipal Court decision to sentence Ferid Halilović, a member of the Croatian Defence Council (HVO), to 15 years’ imprisonment for war crimes committed in 1992 against the civilian population during his time as a prison guard at detention centres in Odzak, Novi Grad and Bosanski Brod, where mainly Serb civilians were held. In its findings concerning mitigating circumstances, the District Court noted: “One also has to keep in mind that the accused was working in camps as a guard, so he did some forbidden acts at orders of superiors and especially at orders of the camp warden.”
In 2004, in its initial report to the Committee against Torture, Bosnia and Herzegovina stated: “No regulation whatsoever prescribes that the orders of a superior officer or authority may be invoked as justification of torture.”