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Home EJIL Analysis A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague”

A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague”

Published on April 22, 2016        Author: 

As recently reported, Croatia has blocked the opening of Chapters 23 and 24 of the accession negotiations between Serbia and the European Union (EU). One of the reasons given relates to Serbia’s law establishing the jurisdiction of Serbian prosecutors and courts over war crimes committed anywhere on the territory of the former Yugoslavia. Justifying their actions, Croatian officials have said that Serbia must follow “European standards”, with some Croatian officials and media reports referring to Serbia’s extension of jurisdiction as the creation of a “mini-Hague” (a media report in Serbo-Croatian is available here). Croatia has asserted that such jurisdiction is incompatible with international law and that it actually constitutes a “hybrid”, rather than universal, jurisdiction (available here in Serbo-Croatian). From the perspective of States whose national legislation provides for universal jurisdiction over international crimes, the issues arising here are quite interesting.

The involvement of the European Commission and its request that the Croatian government cease its opposition has added further complexity to the matter. In a ‘non-paper’, the European Commission has expressed its opinion that the arguments advanced by Croatia are not justified. Commenting on the document, a Croatian official has described it as an old document meant for internal use, and one that the Croatian public should not be bothered with.

Jurisdiction over Croatian Nationals

Croatia’s criticism seems to be aimed at the statutory provisions themselves. In particular, Croatia takes issue with Article 3 of the Serbian Law on Organization and Jurisdiction of State Organs in War Crimes Proceedings, which provides:

The government authorities of the Republic of Serbia set out under this Law shall have jurisdiction in proceedings for criminal offences specified in Article 2 hereof, committed on the territory of the former Socialist Federative Republic of Yugoslavia, regardless of the citizenship of the perpetrator or victim. (An older English version of the law is available here; the quoted provision remains unchanged.)

Croatia thus appears concerned with the possibility of Serbia exercising its jurisdiction over Croatian nationals. No accusations of discriminatory or systematic prosecutions by Serbian prosecutors against Croatian nationals have been advanced by Croatia.  To date, universal jurisdiction has not been extensively used to prosecute foreign nationals for war crimes allegedly perpetrated in the Yugoslav conflict; reported cases include both an acquittal and a rejection of a request for extradition (for the reason of an allegedly politically motivated process) of two Bosnians. In 2015, a Croatian national sentenced in Serbia for war crimes was transferred to serve his sentence in Croatia.

Compliance with “European Standards” and International Law

The Croatian government is targeting a particular statutory provision, which in its opinion, marks Serbia’s intention to act as a “regional policeman”. Hence, the requirement to follow “European standards” would seem to be understood as a critique of Serbian law’s failure to conform to the standards contained in the legislation of the rest of Europe. In 2015, the then government of Croatia opposed Serbia’s laws on universal jurisdiction, suggesting the European Arrest Warrant as the cooperative device to be used between the two States upon entry of Serbia into the EU. Moreover, Croatia has argued that the contested law violates the sovereignty of the other former Yugoslav States and interferes in their domestic affairs.

The issue then becomes, whether Serbia’s universal jurisdiction legislation is in violation of “European standards” and international law. In its ‘non-paper’, the European Commission, stated that the contested law neither violated sovereignty, nor interfered in the domestic affairs of the other former Yugoslav States (the document is not public, but it was apparently disclosed to the Croatian journal, Jutarnji list). This analysis is further supported by the International Committee of the Red Cross’ (ICRC) rules of customary international humanitarian law. The Commentary to Rule 157 provides: “[t]he right of States to vest universal jurisdiction in their national courts for war crimes is supported extensively by national legislation”. In fact, the ICRC states that there is an international obligation to establish universal jurisdiction stemming from the Geneva Conventions, Additional Protocol I, and other treaties. Belgium, France, Germany, Luxembourg, Slovenia, Sweden, Switzerland and the United Kingdom are given as examples of States whose legislation includes universal jurisdiction.

The contested provisions of the Serbian law refer exclusively to international crimes, and particularly to the crimes recognized in the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY). In this context, one might remember the view of the ICTY’s Trial Chamber in the Furundžija case (in the context of the prohibition of torture), where it stated:

It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes. As stated in general terms by the Supreme Court of Israel in Eichmann, and echoed by a USA court in Demjanjuk, “it is the universal character of the crimes in question [i.e. international crimes] which vests in every State the authority to try and punish those who participated in their commission”.

One might also recall the Arrest Warrant (Democratic Republic of the Congo v. Belgium) case before the International Court of Justice, where, it seems, the judges in a series of separate and dissenting opinions accepted that universal jurisdiction for war crimes generally existed.

Universal Jurisdiction vs. “Hybrid” Jurisdiction

But the real issue here for Croatia is that the “universal jurisdiction” at stake is not so universal. Although Article 3 of the contested Serbian law refers to jurisdiction “regardless of the citizenship of the perpetrator or victim”, the same Article limits the application of that law to the crimes committed in the territory of the former Yugoslavia. Thus for Croatia, this is not a form of universal jurisdiction but rather, a “hybrid” jurisdiction serving the purpose of prosecuting the crimes committed in the Yugoslav conflict.

Yet, one might consider the example of French Laws Nos. 95-1 of 2 January 1995 and 96-432 of 22 May 1996, which specifically regulated the exercise of universal jurisdiction by French courts in respect of international crimes committed in the context of the Yugoslav and Rwandan conflicts. This is another example of universal jurisdiction being “adjusted” so as to provide for the trial of crimes committed in specific conflicts.

A Misinterpretation of the Law

Critically, it seems that Croatia has misinterpreted Serbian law. The contested Article 3 does not, in itself, create Serbian criminal jurisdiction over crimes committed during the Yugoslav conflict based on the universality principle. In fact, this jurisdiction exists independently of the contested law. It is provided for by virtue of what is today Article 9(2), in conjunction with Article 10(3), of the Serbian Criminal Code (previously Articles 107(2) and 108(4) of the Criminal Code of Yugoslavia), regulating “real” universal jurisdiction for international crimes. Indeed, a similar argument was apparently raised by the European Commission. Articles 9(2) and 10(3) provide that:

Criminal legislation of Serbia shall also apply to a foreigner who commits a criminal offence abroad against a foreign state or foreign citizen, when such offence is punishable by five years’ imprisonment or a heavier penalty, pursuant to laws of the country of commission, if such person is found on the territory of Serbia and is not extradited to the foreign state.

[…]

In case referred to in Article 9 paragraph 2 hereof, if the act at time of commission was considered a criminal offence under general legal principles of international law, prosecution may be undertaken in Serbia following the permission of the Republic Public Prosecutor, regardless of the law of the country where the offence was committed. (An older English version of the Serbian Criminal Code is available here; the Criminal Code of Yugoslavia had essentially identical provisions in its Articles 107(2) and 108(4).)

Therefore, what the contested law does is establish specialized organs for investigating and trying cases of war crimes committed in the Yugoslav conflict, such as the Office of the Prosecutor for War Crimes and the War Crimes Chamber at the Higher Court in Belgrade. The contested law regulates their jurisdiction. This is how the law has been previously discussed, particularly in the context of its drafting and adoption (see M. Ellis, ‘Coming to Terms with Its Past – Serbia’s New Court for the Prosecution of War Crimes’ at 165). This reading is supported by the wording of Article 1, which defines the subject matter of the law and refers to the “jurisdiction and powers of state organs”, and Article 3, which also makes reference to organs and their jurisdiction.

It is worth noting that Article 16 of the Croatian Criminal Code provides Croatian courts with universal jurisdiction in respect of international crimes. In practice, the main difference between this and the Serbian system is that the former does not have a specialized chamber dedicated to the trial of crimes committed in the former Yugoslavia. A comparison of the regimes raises two interesting questions:  (i) would/could Croatia maintain its argument, in particular, the accusation that Serbia has created a “mini-Hague”, if the Serbian War Crimes Prosecutor and Chamber were not charged with prosecuting crimes committed in the Yugoslav conflict exclusively, but rather, war crimes more generally? and (ii) if the exercise of universal jurisdiction which is somehow limited (e.g. by limiting certain chamber’s jurisdiction to a particular conflict) amounts to a violation of international law (as Croatia claims it does), would it not then follow from this argument that the broader principle of universal jurisdiction likewise amounts to an interference in the internal affairs of the concerned State(s) and a violation of international law?

Conclusion

If the above mentioned reference to the EU ‘non-paper’ as an “old document” is a valid description, it would mean that the Croatian authorities knew well in advance that their position was without foundation, or at least that it would not be well received by the EU. Regardless of the arguments themselves, the practice of the former Yugoslav States blocking each other’s accession to the EU continues. This reminds of the previous scenario when Slovenia blocked Croatia’s accession to the EU, which finally resulted in instituting arbitration over the maritime boundary (a case which had an interesting development, and which was discussed here and here). With all this said, it seems that a central issue here is the extent to which  former Yugoslav States will continue to pursue  a practice of inter-blocking by relying on arguments, which although they claim have legal grounding, are sometimes essentially political.

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10 Responses

  1. SK

    Another perspective that could be advanced is the argumentum a maiore ad minus. If international law allows international jurisdiction, it also allows less than international jurisdiction. Croatia (and other ex-YU) countries could, of course, advance that the limitation of Serbia was discriminatory, however, not every discrimination is also illegal. Serbia would have good reasons to limit its “international” jurisdiction: limited resources, proximity of conflict/effect on its own country/citizens, wish for peace and accountability in its immediate surroundings, etc.

    Of course, I realise that this argument would only be relevant if Serbia in fact limited its jurisdiction, which, it appears from your article, it in fact didn’t; it only indicated its priorities by creating a special institution focusing on ex-YU.

    Very interesting post! Thank you!

  2. Matthias Zechariah

    Except for the crime of piracy that has crystallized into what one may call ‘de jure’ international crime,over which states may exercise universal jurisdiction, the question of universal jurisdiction over international crimes is still contested. But I think that in this 21st century globalized world (in which the idea of absolute state sovereignty is waning more and more), states cannot and should not be put on trial, as it were, for limiting or otherwise expanding their international jurisdiction over crimes that the international community regards as heinous or egregious. Several bilateral, trilateral and multilateral treaties have been adopted and international tribunals/courts established on criminal jurisdictions over certain crimes in addition to the ubiquitous work of the ICRC on armed conflicts and the role of customary international law. The The question of ‘discrimination’ or selectivity in punishing international crimes is immaterial and alien to international law as it is largely a moral question, similar to the cynical argument by the African elite that the ICC targets only Africans. The issue is whether a state has jurisdiction to try a particular crime. If it does, it is not the concern of another State to question the scope of jurisdiction which a particular state has defined for itself for purposes of trying a crime, as the case is with Serbia. It could be, as argued by ‘RK’, that Serbia has enacted this law to deal with an immediate situation that affects it (and indeed the other republics constituting the the former Yugoslavia) more directly; after all, charity begins at home. Assuming that there was not such a law in Serbia limiting its focus to crimes committed in the former YU, and then she (Serbia) decided to limit her prosecutions to such an area, what could have been the ‘legal’ argument of Croatia. Therefore, in my opinion, the Serbian law has not created a ‘mini-Hague’ or a ‘hybrid’ universal jurisdiction, if the meanings attached to these concepts are interpreted in the light of the cynical view that Serbia’s law on the issue is discriminatory. We must not politicize law, though unfortunately, international law itself is laced with politics.
    As a lecturer in international law (I teach at the Faculty of Law, University of Jos, Jos, Nigeria),I find Radovic’s analysis very critical, rich and beneficial to me. I also commend ‘SK’s educating response.
    Thank you.

  3. Thank you, Mr. Relja Radović, for a very interesting post.
    Since the Supreme Court of Israel decision in Eichmann, was mentioned, it is worthwhile to note that the Israeli Statute under which jurisdiction was exercised over Eichman was limited to international crimes during the Nazi regime and World War II and on certain territories (Nazis and Nazi Collaborators Punishment Law, 5710-1950, an English translation is available here: http://www.mfa.gov.il/mfa/mfa-archive/1950-1959/pages/nazis%20and%20nazi%20collaborators%20-punishment-%20law-%20571.aspx)
    I agree with SK and Mr. Matthias Zechariah that Power to do “A” includes the Power to do “A-X “. Maybe it can be considered a general principal of legal interpretation? On the normative level, too, I think it is legitimate for a state to prioritize the enforcement of some categories of international crimes within its general universal jurisdiction. However, on the concrete level, each person accused has the right to a fair trial and in some jurisdictions the Court may dismiss the case on grounds of selective and discriminative enforcement.
    Lastly, I think a good response to legitimate concerns about interference in the internal affairs of a foreign state will be to adopt a complementary clause, such as the one included in principle 8 of The Princeton Principles on Universal Jurisdiction, titled “Resolution of Competing National Jurisdictions” (available here: https://lapa.princeton.edu/hosteddocs/unive_jur.pdf).
    Is there such a clause in the Serbian Law?

  4. SL

    Very interesting post. Just a question: Does the law take into account potential immunities of state officials?

  5. Relja Radović Relja Radović

    Many thanks to all of you for great comments.

    As for the couple of questions that appeared, I will try to be short and precise.

    Concerning the rules governing the resolution of competing jurisdictions: As quoted above, Serbian (and former Yugoslav) law condition exercise of universal jurisdiction with non-extradition to another State. The extradition process, conditions etc. are regulated in the Law on International Cooperation in Criminal Matters. That act will be applicable if there is no treaty in force between the two States concerned, or if the the applicable treaty does not regulate certain issues. Certain provisions aiming at protection of human rights do exist in the act (e.g. the prohibition of extradition when there is a threat of capital punishment, and the provision securing the trial in presence of the accused). Therefore, although there is no special provision for the resolution of a competing issue, criteria can be traced in other places.

    As for the immunities: Being a procedural question, the Code of Criminal Procedure regulates “circumstances precluding criminal prosecution”. International law is part of Serbian domestic legal system (it is positioned above regular statutory laws, but under the Constitution). Hence, any rules of international law establishing immunities should be observed.

  6. Klara

    Cijenjeni g. Radović,

    Vjerujem da ste pročitali rad dr. Davora Derenčinovića: ‘Nekoliko komentara uz Zakon o organizaciji i nadležnosti državnih organa u postupku za ratne zločine Republike Srbije’? On jako dobro objašnjava kontroverze glede čl. 2. i 3. toga Zakona. Ako niste, molim Vas, pročitajte, ima na netu. Rado bih pročitala Vaš komentar na njegov paper. LP. Klara.

  7. Relja Radović Relja Radović

    Klara,

    I am replying in English, because I would like others to be able to follow completely this discussion.

    The article you suggested is available here http://hrcak.srce.hr/93202?lang=en; so who ever is capable of reading Croatian/Serbian, it is of course an opportunity to hear the opposing arguments.

    Of course, I will not go through the article argument by argument. But there is one point I would like to make. It is extremely important to distinguish between, on the one hand, critiques of the law and its statutory provisions themselves and, on the other, critiques of the prosecutorial/judicial practice. The first ones aim at saying that the law at stake is simply bad law, because of its incompliance with the rest of the legal system, or in this case with the international law. However, a critique against prosecutorial or judicial practice would suggest that there is nothing wrong with the law, but that certain actors are not acting in good faith, or simply competently, when implementing that law.

    Now, the problem I see in this whole situation is that there is an argument that Serbian law is simply bad law (i.e. in contradiction with international law), but on the other hand, when elaborating on that argument, the main point that remains is how did the Serbian War Crimes Prosecutor act when he asked for the extradition which was ultimately denied in the UK (a case which was mentioned in my post, but also discussed extensively in the article you suggested).

    Unfortunatelly, media reports simply do not offer enough information so as to know what were concrete points made by the Croatian government when discussing its arguments with the European Commission. Nevertheless, it seems clear that the main argument is that the law at stake is simply bad law.

  8. Klara

    Thank you for your reply. I will now go to certain parts of the text of Dr. Derenčinović which I have found controversial – or, which some of the Croatian legalist, incl. ex minister of Justice Orsat Miljenić refer to as controversial – and will write them here in English so that other can comment, too.
    P.S. Pls. do take account of the fact that I am not of legal profession but, if I may say so, am quite familiar with the legal themes as I work as ghost writer for one Croatian politician who is of legal profession.

  9. Klara

    P.S. the other day I have also read this book (some pages are not available!): https://books.google.hr/books?id=bK6lBAAAQBAJ&pg=PA206&lpg=PA206&dq=serbian+universal+jurisdiction&source=bl&ots=aH0AUWhQ0E&sig=Sbo_y8cPRJR5IxF9aqSbFDI9R90&hl=hr&sa=X&ved=0ahUKEwii89ei1ZjMAhUsDZoKHWW5BTM4FBDoAQg7MAM#v=onepage&q=serbian%20universal%20jurisdiction&f=false

    but you can find some very interesting info; ok. the basic idea of the author was obviously not to criticize the law itself but the practice of the prosecutors, proceedings, etc. what is also clear from his book is that this law is primarily designed as a political leverage aimed at ex yu republics, i.e. the continuation of the war with other means. btw. my personal view is that the Croatian politicians did not prepare the ‘blocade’ in a proper way. but this is another theme.

  10. […] This article reflects on Relja Radović’s article “A Comment on Croatia’s Concerns over Serbia’s So-Called “Mini-Hague”. […]