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Universal Jurisdiction or Regional Lawfare

Published on June 1, 2016        Author: 

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

The major point of contention

As a major point of contention between Croatia and Serbia in the current “jurisdictional debate”, Radović rightly pinpoints Article 3 of the Law on the Organization and Competence of State Authorities in War Crime Proceedings (the “LWC”) (see here) by which Serbia extended its criminal jurisdiction in proceedings for the most serious violations of IHL committed on the territory of the former SFRY (LWC Article 2), regardless of the citizenship of the perpetrator or victim (LWC Article 3). Radović also summarizes Croatia’s objections to LWC Article 3 and the jurisdiction it introduced, which argue that it is incompatible with international law (including international criminal law) and “European standards”, as well as contrary to the very notion and basic principles of universal jurisdiction. For the sake of clarity, it should be noted that LWC Article 2, which introduces the aforementioned territorial extension of the Serbian criminal jurisdiction, and Article 3, which reasserts this extension and simultaneously cuts any links to the citizenship of the perpetrator or victim, must be read in conjunction. However, for the purposes of this article, reference will be made to Article 3 to cover both, as was Radović’s approach.

In his analysis of the dispute, Radović fully and unreservedly accepts the official Serbian narrative, which equates LWC Article 3 to universal jurisdiction as it is commonly understood or – as Radović later in his contribution dubs it – to “real” universal jurisdiction. Namely, according to Radović:

“the contested Article 3 does not, in itself, create Serbian criminal jurisdiction over crimes committed during the Yugoslav conflict based on the universality principle” … but “… this jurisdiction exists independently of the contested Law … and is provided by the virtue of … Article 9 para 2 in conjunction with Article 10 para 3 of the Serbian Criminal Code … regulating “real” universal jurisdiction for international crimes”.

The author therefore concludes that there is no difference between the two (LWC Article 3 and “real” universal jurisdiction), that “it seems that Croatia has totally misinterpreted the whole issue”, and that by opposing LWC Article 3 Croatia is blindly and unreasonably opposing a form of jurisdiction (“real” universal jurisdiction) accepted in criminal legislation in many EU Member States, as well as other States, including Croatia’s own criminal legislation.

The flaws of LWC

However, from Croatia’s point of view there are two basic objections to this kind of narrative. First of all, equating LWC Article 3 to “real” universal jurisdiction – either by claiming that there is no difference between the two or by claiming that Article 3 only “…establishes specialized organs for investigating and trying cases of war crimes committed in the Yugoslav conflict…”, without establishing any kind of jurisdiction, since such jurisdiction already “… exists independently of the contested Law…” and is provided for by virtue of the Serbian Criminal Code – is fundamentally wrong. And – second – claiming that Croatia’s opposition to LWC Article 3 solution eo ipso (as a consequence of equalizing LWC Article 3 to “real” universal jurisdiction) amounts to Croatia’s opposition to “real” universal jurisdiction as such ­– is intentionally deceiving.

Even a short glance at LWC Article 3 reveals significant difference between the kind of jurisdiction it introduces and “real” universal jurisdiction as it is commonly understood. Primarily, in contrast to universal jurisdiction’s unconditional applicability to all States and areas, without regard to where the crime was committed and solely based on the gravity of the crime, Article 3 introduces new criteria for its implementation and that is anteriorly defined territorial scope. This new criteria, by changing the spatial (from unlimited to limited) and temporal (from a posteriori to a priori) framework of “real” universal jurisdiction, profoundly changes its very concept and purpose. Such “universal jurisdiction” ceases to be universal (unlimited) as it is applied exclusively to a defined number of States that came into existence after the dissolution of the former SFRY, and ceases to be a subsidiary (a posteriori) safety net set up as the last resort in the fight against impunity as it is implemented irrespective of the clearly expressed readiness of States to prosecute alleged crimes. It becomes a limited preliminary (a priori) assumption (suspicion or allegation) that a number of discretionally selected sovereign States are not or would not be up to their jobs as regard the prosecution and punishment – on their own territory – of the most serious violations of international law. As a result, it also ceases to be politically neutral. These changes cut deep into the very notion of universal jurisdiction and profoundly alter its main purpose and functions.

In this context, it should be added that a claim based on argumentum a majore ad minus (that “if international law allows international jurisdiction it also allows less than international jurisdiction”), as was suggested by some commentators to Radović’s contribution, is not valid, because the “majore” in this case (“real” universal jurisdiction) is qualitatively absolutely different from the “minus” (LWC Article 3): there can be no universal jurisdiction without its principle universal application – anything less amounts to its abuse, and results in jurisdictional lawfare. Equally so, the answer to Radović’s a minus ad maiore question:

 “if the exercise of universal jurisdiction which is somehow limited…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?”

at the end of his article is a simple no, because initially illegal Article 3 cannot become legal simply by its universal application. On the contrary, universal application of such concept would lead to absolute legal chaos and irrevocable destruction of universal jurisdiction as such.

Such “jurisdiction” also contradicts the basic principles on which the EU and relations between its Member States are established. It is incompatible with the political criteria in individual Chapters within the accession negotiations, in particular Chapters 23 and 31, including regional cooperation in the prosecution of war crimes, as well as harmonization of the criminal legislation of the EU Member States. As such, this issue is by no means just a bilateral affair between Croatia and Serbia, but a wider matter of the defense of, and full respect for, the values and fundamental principles of the EU.

In addition, LWC implementation in absentia from 2010 prompted a number of European states to reject Serbian extradition requests on the basis of that Law (e.g. Ganić, Divjak, Orić, Haradinaj), characterizing them as biased, politically motivated or not grounded in facts or law (e.g. see City of Westminster Magistrates’ Court, Great Britain, Ejup Ganić case).

Thus, in Croatia’s view, LWC, which is neither universal nor subsidiary, is actually the exact opposite of “real” universal jurisdiction’s basic purpose and principles. Accordingly, such “regional jurisdiction” simply becomes regional hegemony, or legal aggression.

The basic question then in the ongoing “jurisdictional debate” is not whether Croatia accepts universal jurisdiction, or whether Serbia’s “universal jurisdiction” is in violation of “European standards” (as Serbia continuously presents the issue), but rather whether LWC Article 3 significantly differs from the basic principles and the very notion of “real” universal jurisdiction (and for that matter is also contrary to international law and international criminal law standards), and, if it does, whether this difference is compatible with the common understanding of universal jurisdiction or not.

Serbian Criminal Code

Article 9 para 2 of the Serbian Criminal Code (regarding the application of Serbian criminal legislation to foreigners who commit criminal acts abroad) applies to foreigners who committed crimes against a foreign State or its citizens irrespective of the nature of the crime, provided that the prescribed punishment in the State on whose territory the crime was committed is five years of imprisonment or more and that the alleged perpetrator is present on the territory of the Republic Serbia and is not extradited to the foreign State. This provision, unlike LWC Article 3, fully and correctly represents the substance of universal jurisdiction while respecting general principles of international law and international criminal law standards. It enables Serbia, under certain conditions, to prosecute the most serious violations of international humanitarian law. This would include crimes such as the genocide in Srebrenica or the worst international crimes committed in Vukovar, which are sometimes cited by Serbian officials as the main justification for LWC.

Bearing the aforementioned in mind, the crux of the “jurisdictional debate” between Croatia and Serbia could be rephrased, as suggested by Radović himself towards the end of his contribution:

 “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 turned into the following question: What is the added value of LWC Article 3 and why does Serbia, in spite of the fierce opposition from neighboring States, hold so dearly to it if there is no difference between LWC Article 3 and the “real” universal jurisdiction contained in the existing Serbian Criminal Code?

Why Serbia needs LWC

From the above it is apparent that LWC Article 3 has a different goal and purpose than the “real” universal jurisdiction contained in Serbia’s Criminal Code. Serbia’s unprecedented jurisdictional encroachment upon criminal jurisdictions of States that came into existence after the dissolution of the former SFRY as introduced by LWC Article 3 does not have anything to do with the noble goal and purpose of universal jurisdiction. By taking the role of the regional chief policeman and final judge for the most serious violations of international law on the territory of the former SFRY, LWC Article 3 clearly demonstrate Serbia’s intention to rewrite history, redistribute responsibility and equalize culpability for the bloodiest armed conflict in Europe since the Second World War. Serbia has decided to cover up its established defeating record in the armed conflict on the territory of the former SFRY and mitigate the “damage sustained” by the judgements of the ICJ and ICTY to the greatest extent possible. Such attitude is simply a continuation of aggressive policies of the “greater Serbia”, and the fierce debate that Serbia is waging on the issue of Article 3 signals that Serbia is still far from facing its past and turning a new page.

As regards the French example (see here), showcased by Radović as similar to LWC Article 3, it seems that the French Law 95-1 of 2 January 1995 is based on a quite specific (unprecedented) understanding and interpretation of the UN Security Council resolution 827 (1993)’s operative paragraph 4 wording “shall cooperate fully with the Tribunal and its organs” (as further elaborated in the ICTY’s Statute Article 29). It is certainly open to debate whether the term “cooperate fully” should include the identification of material and territorial jurisdiction of national courts with material and territorial jurisdiction of the Tribunal established by the decision of the UN Security Council acting under Chapter VII of the UN Charter, as well as whether such interpretation is in any way warranted or even permitted. It is also interesting to note that France actually never applied this Law. Be that as it may, it is clear that France and Serbia could not differ more as regards their position and role in the armed conflict on the territory of the former SFRY. However, despite all their differences, Serbia arbitrary and without any legal justification decided to follow France’s unprecedented legal experiment and, in one stroke, based on UNSC resolution 827, become the supreme judge on its own case. In view of the devastating criminal dossier developed by international courts and tribunals (ICJ, ICTY), as well as national courts, regarding Serbia, its citizens and persons of Serbian origin under which Serbia exerted significant control in connection with the armed conflict on the territory of the former SFRY, Serbia is the last state to have any legal, let alone moral, ground to exercise its criminal jurisdiction on the territory of the neighboring States as regards that same conflict. Some see this Serbian ambition as a sheer impertinence and detachment from reality, but others – perhaps more realistically – see it as a continuation of the greater Serbian policies, this time by legal means.

Conclusion

Hence, between LWC Article 3 and “real” universal jurisdiction there is a flat contradiction. Serbia persistently negates this contradiction and, consequently, depicts Croatia, by opposing LWC Article 3, as simultaneously opposing universal jurisdiction itself. On the other hand, Croatia confirms its full acceptance of universal jurisdiction and its lawful implementation, and sees LWC Article 3 as a practical negation of the concept and purpose of universal jurisdiction, based on a politically motivated assumption or allegation that a number of a priori designated neighboring States are unable or unwilling to fulfil their international obligations. In Croatia’s view, Serbia’s motives for this unprecedented legal experiment are transparent.

It should be assumed that this debate is being followed by both the proponents as well as the opponents of universal jurisdiction, and its potential should not be underestimated. It could serve as another brick in the emerging house of universal jurisdiction, through clarification of its basic purpose as well as necessary preconditions of its lawful implementation. Or it could give its critics strong wind beneath their wings by showcasing serious possible misinterpretations and abuse of the emerging noble concept of universal jurisdiction, thus leading to its weakening, confusion and even disintegration. Anyhow, on whatever side any of the States may stand, one thing is sure: none of them would tolerate such jurisdictional encroachment (for those who want to better understand the issue, putting themselves in Croatia’s shoes is a recommended exercise that often helps more objective thinking). In that context, and fully aware of the UK, Israeli and French examples, it should be stressed that there is not a single example in contemporary comparative legislation, either in Europe or wider, that would be equivalent to LWC 3 as described above.

Thus far, LWC has led to great complications in the region and has become one of the main stumbling blocks in the relations between the neighboring states, substantially slowing down the process of the normalization and stabilization of relations and undermining cooperation between States’ in the prosecution of international core crimes and the rule of law.

LWC – the Law that brings nothing at/or all?

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18 Responses

  1. Dapo Akande

    Dear Toma,

    Many thanks for your post. However, it seems to me that your piece is based on a misapprehension of the concept of universal jurisdiction. Roger O’Keefe, in his prize winning article in the Journal of International Criminal Justice – Universal Jurisdiction: Clarifying the Basic Concept provides what is probably the best definition. He says:
    “universal jurisdiction can be defined as prescriptive jurisdiction over offences committed abroad by persons who, at the time of commission, are non-resident aliens where such offences are not deemed to constitute threats to the fundamental interests of the prescribing state or, in appropriate cases, to give rise to effects within its territory.” (p. 745)

    He then quotes Herve Ascencio who says that universal jurisdiction “is usually defined negatively as a ground of jurisdiction which does not require any link or nexus with the elected forum.”

    So all that universal jurisdiction indicates is the absence of a link with the prescribing forum. There is nothing in the concept that requires that the exercise of prescriptive jurisdiction on this basis be global. Of course, where universal jurisdiction is lawful the state exercising it will usually be permitted to prescribe globally. But it is not required to do so.

    As Relja Radovic and commentators to his post observe there are many examples of states providing for a limited form of universal jurisdiction. France and Israel were alluded to. Other examples include the UK and Australia War Crimes Acts (of 1991, and 1945 respectively with the latter amended in 1988) both which provided for prosecution of war crimes committed during the Second World War. These are all cases providing for prosecution of international crimes which at the time of commission were without connection to the forum. But they did not provide for a global prosecution of all war crimes committed at all times anywhere in the world. They were limited geographically and temporally by reference to particular conflicts.

    Of course, the fact that this form of universal jurisdiction is legally permissible does not necessarily make it wise or conducive to the smooth conduct of international relations. But it is nonetheless legally permissible

  2. Jordan

    There is also the practice, or problem, of some domestic prescriptions not fully reflecting customary criteria or definitions of crimes or non-criminal violations (e.g., torture). The US torture criminal statute is inadequate vis a vis US responsibilities under the CAT and the Geneva Conventions, which reflect CIL, as is the 2006 War Crimes Act (although 10 USC incorporates all of the customary war crimes as offenses under the laws of the US).
    And any violation of the laws of War is a war crimes, whether or not it is of a certain gravity!
    And Dapo, that definition of universal prescriptive competence is poor because it is an independent prescriptive competence under CIL and certainly is not obviate because the state using such also has an “interest,” or direct and significant national security interest to allow use of protective jurisdiction, or effects within, that may be one of the factors allowing objective territorial jurisdiction.
    Another question relates to state obligations aut defere aut judicare.

  3. Dapo’s comment is spot-on. Indeed, we can illustrate the validity of the “argumentum a majore ad minus” argument by imagining that Serbia simply adopted “universal” universal jurisdiction — UJ limited by neither time nor place — and then announced that, as a matter of prosecutorial policy, it would only prosecute crimes committed within the same temporal and spatial parameters as the LWC. That might be bad policy. It might be ignoble. But it would certainly not be illegal under international law. And if that is the case, it’s difficult to see how international law would prohibit enshrining those parameters in the LWC itself.

  4. Dapo Akande

    Jordan,

    I think we are in agreement that a state may have a basis for exercising jurisdiction both on the basis of prescriptive universal jurisdiction and on some other basis, such as the protective principle. However, I think the point being made in the O’Keefe definition is that when a state prescribes on the basis of universal jurisdiction that prescription is not based on, and is therefore independent of, any link between the crime, the offender, the victim and the state. Where such a link also exists then the crime would fall within two basis of jurisdiction both independent of each other.

  5. Toma Galli

    Thank you, Dapo. Please let me clarify some of the points.
    First – notwithstanding consensus in international law that universal jurisdiction is “the right and the duty” to prosecute perpetrators of the worst international crimes, no matter where the crime was committed, who committed it and no matter who the victims were, with the ultimate objective to protect the fundamental values of the international community – many States and scholars see the concept as in statu nascendi.

    In that sense, no matter how valuable O’Keefe’s contribution might be, it is not the ultimate definition of the concept. It is a contribution to the debate, albeit – in my opinion – unconvincing. O’Keefe contradicts many other interpretations, including the prevailing position. The discussions in the Sixth Committee (http://www.un.org/en/ga/sixth/70/universal_jurisdiction.shtml), the opinions of scholars such as Bassiouni and Becker, and opinions of many judges at the ICJ (see, e.g., http://www.icj-cij.org/docket/files/121/8128.pdf, http://www.icj-cij.org/docket/files/121/8132.pdf and http://www.icj-cij.org/docket/files/121/8138.pdf) speak to that end. They either do not support the concept of universal jurisdiction, or at least do not support it as suggested by O’Keefe.

    Second – I have issues with the two definitions that you put forward. The one by O’Keefe – which I see as being developed primarily in relation to the protective principle – is, in my opinion, incomplete and does not capture the essence of the emerging common understanding of universal jurisdiction, i.e. the concept’s constitutional element of the gravity of the crime. The one by Ascencio is, on the other hand, quite controversial and has been strongly repudiated in practice, as Belgian and Spanish short-lived experiments showed. Equally so, I feel that reducing universal jurisdiction to the absence of a link with the prescribing forum represents a total misinterpretation of universal jurisdiction. Actually, it ignores the concept’s tenants and focuses on one of the possible ways of its implementation. Accordingly, while I appreciate your comments, I feel they miss the point of my writing as I don’t see our discussion as a discussion on the implementation of universal jurisdiction, but on its substance.
    Basically, the message I am trying to get across is that changing the spatial (from unlimited to limited) and temporal (from a posteriori to a priori) framework of universal jurisdiction – with universality and subsidiarity as its basic elements – absolutely regardless of the prerequisites for its implementation (nexus or not), inevitably leads to its misinterpretation, abuse and, in ultima linea, legal aggression. Obviously, a priori geographical extension of criminal jurisdiction to the territories of neighboring sovereign States, instead of its use as subsidiary (a posteriori) safety net set up as the last resort in the fight against impunity, necessarily rests on the assumption that States concerned are not able or willing to prosecute alleged crimes. Such an assumption, because it is made a priori, is, eo ipso, contrary to the basic principles and norms of international law. Furthermore, if such an assumption, as it is the case here, is made by the State having serious problems with its judiciary against States whose judicial systems have recently successfully passed the EU’s scrutiny – the motives of the whole exercise become clear. What is even more striking is the fact that the State making this bold move has on its shoulders a heavy burden of unprecedented legal record established by international courts and tribunals that undoubtedly strip it of any authority to be “the one” to prosecute events for which precisely that State itself bears by far the greatest responsibility.

    Finally, as regards the „many examples of States providing for a limited form of universal jurisdiction“, there is not a single example anywhere that would be equivalent to LWC. I do not think the examples of the UK and Australia prove your point since, though geographically limited, they apply only to their own nationals (in accordance with active nationality principle), unlike the Serbian example, and, actually, do not reflect universal jurisdiction as commonly understood. The Israeli example also fails to prove your point. Quite the opposite! Their a priori extension of criminal jurisdiction to the territory of “enemy States“ rests precisely on the premise that these States, for obvious reasons, are not able or willing to do their job. This actually vehemently confirms my main point. Such a premise, and that is the crux of my argument, is totally unacceptable in relations between modern States and in particular between prospective EU member States.

    With the exception of you considering this form of jurisdiction as permissible, I could not agree more with your conclusion that its application is neither wise nor conducive to the smooth conduct of international relations. Least so in South East Europe!

  6. Jordan

    Dapo: we seem to be in agreement that there can be alternative jurisdictional competencies under customary international law. Our courts have sometimes found that the extension of a particular statute to conduct outside US territory was justifiable under universal and protective jurisdiction (as in the indictment in absentia of bin Laden and a dozen others before 9/11) and the fact that two or more basis exist does not obviate the permissibility of use of universal jurisdiction. My problem with the O”keefe definition is that it seems to set up limits to the applicability of universal jurisdiction as if it is not available if there is also a competence under protective or objective territorial (his words look like a limit: “where such offences are NOT…”). In any event, the existence of two or more other bases would not obviate competence under universal jurisdiction.
    Toma: you seem to focus on universal under customary international law. You might also consider the treaty-based obligations of parties to enact appropriate legislation and take effective measures — e.g., the CAT, art. 4(1) together with art. 5(2); the Genocide Convention, art. I together with art. V; and the Geneva Civilian Convention, art. 146.
    US legislation with respect to Genocide is miserable and leaves the U.S. in violation of the Convention. The CAT Committee has notified the US that US legislation regarding torture is not adequate, that the US remains in breach of the CAT.

  7. Elena Stavrevska

    Thank you for an interesting debate here. I see reports about Serbia’s talks with the EU continuing, so my guess is that this topic will remain as present in the coming months, too.

    In any case, this is what I actually want to emphasize here – that this discussion is taking place within Serbia’s EU accession context, in which mutual trust – in criminal matters especially – is one of the main pillars.

    To presuppose that your neighboring EU countries – Croatia and Slovenia – are unwilling or unable to prosecute war crimes shows, in my opinion, quite the opposite. It shows a priori distrust towards their legal systems when actually, your own legal system (i.e. Serbia’s) is the one that needs improvement.

    The OSCE made quite a thorough analysis of Serbia’s war crimes trials record – see http://www.osce.org/serbia/194461?download=true – and noted that over the past decade Serbia prosecuted mostly isolated and sporadic cases of war crimes and that “the independence of [Serbia’s] judiciary is still generally weak, public opinion is unsupportive of war crimes prosecutions and the War Crimes Prosecutor’s Office is increasingly subjected to undue interferences by other State organs”. Likewise, ICTY’s President and Prosecutor say – just last week in their report to the Security Council – that there are „legitimate concerns about the strength of the commitment of Serbia to war crimes justice and reconciliation“. This is after having reported Serbia to the SC for its lack of cooperation. If you can’t properly “do it at home”, what justification is there to try and do it elsewhere?

  8. Toma Galli

    Thank you for your comment, Kevin.
    First, there is a huge difference between a bad policy and a bad/corrupted law and, unfortunately, I would argue that LWC belongs to the latter. If this was only a policy issue, it would not be an issue at all. Also, there is no need to imagine Serbia adopting “universal” universal jurisdiction since Serbia already has “universal” universal jurisdiction in its Criminal Code. Accordingly, and under generally accepted preconditions, Serbia was – and is – absolutely free to apply universal jurisdiction to the worst international crimes, including crimes committed on the territory of the former SFRY in accordance with any kind of prosecutorial policy it chooses. The real questions – around which I have built my intervention – then become the following two: why does Serbia need LWC at all, and why does it, despite fierce opposition from neighboring States, go so far to apply LWC in absentia?
    The argumentum a majore ad minus as introduced in my post obviously exceeds the question of prosecutorial policies and cuts deep into the very notion of universal jurisdiction. It demonstrates that any a priori change of spatial or temporal elements of universal jurisdiction profoundly changes its very nature and purpose and turns it into the allegation of unwillingness or inability of States concerned to do their job as regards prosecution and punishment – on their own territory – of the most serious violations of international law. The annulment of universal jurisdiction’s general applicability (its universality) by its a priori territorial limitation necessarily leads to the annulment of its neutrality (through arbitrary a priori selection of those “unable and unwilling”) and on that basis introduces flagrant discrimination between legal systems of sovereign States. Such approach is in flat contradiction to the Charter of the UN (sovereign equality and non-intervention in internal affairs), general rules and principles of international law (as contained, e.g. in the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations) as well as the applicable rules of international criminal law.

  9. Jordan

    Toma: international crimes, and universal jurisdictional competencies and responsibilities under customary and treaty-based international law, are not simply the affairs “of” a single state (re: 1970 Declaration on Principles of International Law, etc.). They are affairs of an international character and of the community. Further, they are not “essentially within the domestic jurisdiction” of a single state, re: UN art. 2(7).

  10. Goran

    Dear Jordan, dear Toma – let me jump in on this interesting discussion on customary vs. treaty basis and features/characteristics of universal jurisdiction.

    To me it seems that the basics of universal jurisdiction do not differ in treaty law from those in customary international law.

    True that in the implementation phase there are differences as to whether states are *required* to exercise this type of jurisdiction and which crimes are included, but the essentials, as far as I understand it, are identical.

    This is a document I was directed to recently in a course that the ICRC organized on IHL: https://www.icrc.org/eng/assets/files/2014/universal-jurisdiction-icrc-eng.pdf. Perhaps a useful contribution to the debate.

  11. Jordan

    Goran: yes, a helpful ICRC document. I mention the treaty base because some offenses do not reflect customary international law. Today, however, most treat-based international crimes are also crimes under CIL.

  12. Relja Radović Relja Radović

    Dear Toma,

    Thank you for your interest in my blog post, and apologies for a late reply.

    I regret to note that you are taking my post for the “official Serbian narrative”. As you probably noticed, I concentrated solely on the media reports, and my post did not reflect any position taken by the Serbian government. I could equally say that your post “fully and unreservedly accepts the official Croatian narrative”, particularly by making the same qualifications and referring to Serbia as “regional chief policeman and final judge”, as the Croatian government does (see again: https://aboutcroatia.net/news/croatia/foreign-minister-say-ec-non-paper-old-document-internal-use-17798). However, I do not find such criticisms constructive for the sake of the present discussion, so please let us leave them on side. I also do not find constructive the emotional instances aiming at showing “who is the bad guy” historically.

    Hence, I will further concentrate solely on the legal issues, and I find three critical points of our disagreement.

    Firstly, I never said that Article 9 SCC and Article 3 LWC are the same thing. Quite to the contrary. While the firmer regulates universal jurisdiction, the latter establishes and regulates organs for prosecuting and trying war crimes. And maybe that is an answer to your question why Serbia insists on keeping the LWC: Without the LWC, there would be no War Crimes Chamber, and no War Crimes OTP.

    The crucial question that remains unclear is what rule of international law has Serbia breached by adopting the LWC? Neither universal jurisdiction for war crimes, nor the LWC are new phenomenons in this area. While universal jurisdiction for international crimes dates back to the Yugoslav legislation, the LWC in Serbia was adopted back in 2003. What rule of international law is Serbia violating today, in 2016, by keeping the LWC in force?

    You are relying heavily on “the common understanding of universal jurisdiction”, which already in this discussion appeared not so common. There is no reference to any rule of international law saying “the exercise of universal jurisdiction in respect of international crimes must not be limited in any way”. Furthermore, there is no mention of a rule of international law providing that if universal jurisdiction is to be exercised, courts of one state must firstly wait wait and wait to see that the other states (having territorial or personal nexus with the crime) will not take the case (or would not do so properly).

    Even if we would assume that a conduct contradicting the universality and subsidiarity elements of universal jurisdiction would indeed amount to an interference in internal affairs of other states, should the same violation of international law appear if a state adopts policy to persecute crimes from a particular conflict, thus assuming that the states with a stronger nexus are not willing to do so? If I understood correctly, you argue that there would be no violation in such a case (“If this was only a policy issue, it would not be an issue at all”).

    Secondly, I do not remember praising any judiciary in my post; what is more, I myself referred to the case of alleged bias, which you discussed in your reply. I would not contest an argument that Serbian judiciary still has a lot to do to build its credibility, for a very simple reason: I completely agree with it! But a broader picture is much more devastating than suggested, and former Yugoslav countries in general cannot be praised for having strong judiciaries (Croatia itself has been heavily criticized for conducting biased war crimes trials, as well as for having inadequate legislation; see e.g. here: https://www.amnesty.org/en/documents/eur64/003/2010/en/).

    But the judiciaries and their credibility are irrelevant here. If Croatia argues that the LWC itself violates international law, what does the conduct of judiciary change? Should Croatia argue that Serbia is violating international law by discriminately persecuting and trying war crimes cases against Croatian citizens, that would be another thing. But that is not the argument that has been advanced. Therefore, any discussions on “who has better judiciary” should be skipped.

    Third, I cannot find convincing the argument that jurisdiction over war crimes committed in the former Yugoslavia collides with the obligation to cooperate in criminal matters. Jurisdictions collide all the time, whatever type of jurisdiction is at stake (universal, territorial or personal). And this is most certainly the case with international crimes. While such collisions require states to cooperate with each other, I do not find convincing that the only solution for “advancing the cooperation” would be to eliminate any possibility of jurisdictional collision in the first place. Perhaps a proof that cooperation between Croatia and Serbia in criminal matters is indeed possible can be seen in the Marić case (mentioned in my post: http://www.balkaninsight.com/en/article/serbia-to-transfer-croatian-war-criminal-to-croatia), who was sentenced in Serbia, but sent to serve his sentence in Croatia.

    Also related to this point, but also as a general remark, the final and crucial question of my post remains unanswered, and that is to what extent will former Yugoslav states be able to cover their political disagreements with “legal” arguments for the sole purpose of blocking each other in the EU accession process. You yourself acknowledge that the collision of jurisdiction ultimately affects the political relations between Croatia and Serbia. And I agree with that. But that is not a legal argument. The problem that I see in requalifying political disagreements as legal ones, is that ultimately they are not being discussed and resolved in the appropriate forum. Today we are facing the situation where the European Commission is supposed to give us an answer what is universal jurisdiction over international crimes. Whatever is the answer, and whatever is the extent of our disagreement on the substance, I believe we would agree that it would not be a proper way of closing the debate.

  13. Steven Becker

    Dear Mr. Galli,
    I have read with interest your article regarding the Serbian War Crimes Act (SWCA) and universal jurisdiction, as well the original post from Mr. Radović, and the comments on each piece. Although a number of the commentators focus on the fact that Serbia is not necessarily forbidden from enacting such extraterritorial criminal legislation (e.g., the argumentum a maiore ad minus), I think, as a practical matter, the more-pertinent question is what is the rationale underlying this novel, regional jurisdictional experiment?
    The traditional principles of international criminal jurisdiction – territoriality, active personality, passive personality, and the protective principle, are all predicated upon various aspects of sovereignty. The theory of universal jurisdiction, in its classic formulation, is no different, except, in contrast, it is predicated upon a lack of sovereignty, viz., the crime was committed outside of the territory of any state, i.e., in terra nullius. Piracy on the high seas is often cited to illustrate this point. Universal jurisdiction is thus a gap-filling measure, and this is why it is known as a theory, as opposed to a principle, of international criminal jurisdiction. So what is the rationale behind the pertinent provisions (Articles 2 and 3) of the SWCA?
    Everyone is in agreement that the SWCA does not constitute an expression of pure universal jurisdiction but is something less – a hybrid jurisdictional construct, as it is limited in geographic scope to the territory of the former Socialist Federative Republic of Yugoslavia, while at the same time invoking language from modern formulations of universal jurisdiction. Because of this regional, territorial restriction, the SWCA does not fit within the rationale for universal jurisdiction, which is based upon an absence of sovereignty. The territory of the former Socialist Federative Republic of Yugoslavia now encompasses multiple sovereign states.
    In addition, as Mr. Radović pointed out in his piece, Serbia already has a universal jurisdiction provision in its domestic Criminal Code. So why is the SWCA provision needed at all? Furthermore, because of universal jurisdiction’s potential to disrupt the international legal order, it should only be used as a last resort, and its exercise should be restricted by procedural safeguards to prevent abuse and political prosecutions. Although the universality provision in the Serbian Criminal Code is subject to various limitations, the SWCA is not.
    What happens when a prosecution initiated under the SWCA overlaps with a prosecution commenced by another country from the former Yugoslavia under a more-traditional jurisdictional principle? There is no provision in the SWCA to address competing jurisdictional claims, as there is, for example, in Principle 8 of the Princeton Principles on Universal Jurisdiction, which provides a multi-factor balancing test to avoid conflicts.
    Because the SWCA does not fall within any recognized jurisdictional category, one can only assume that it was enacted for the express purpose of facilitating the prosecution of Serbia’s wartime enemies (now neighbors) in the conflict in the former Yugoslavia. I am sure that Serbia’s neighbors would dispute the assumption implicit in the passage of the SWCA that they are unwilling and unable to prosecute international humanitarian violations stemming from the conflict.
    In sum, irrespective of whether Serbia has the jurisdictional competency to enact such extraterritorial “regional” criminal legislation, the SWCA, in its current form, seems neither necessary, nor prudent.

  14. Maja Munivrana Vajda

    Dear all,
    as a Croatian scholar, I was rather hesitant to join the discussion fraught with political overtones (despite some attempts to stick to legal issues). Yet, having read both articles and all the comments, I feel compelled to briefly intervene on one point only.
    In my view the main issue at stake is not whether Serbia is legally entitled to prescribe this form of limited “regional universal jurisdiction”, but instead, whether adjudicative exercise of this type of jurisdiction should be subject to certain limitations, namely the principle of subsidiarity.
    Some claim that subsidiarity in the context of universal jurisdiction has become a principle of international customary law (see e.g. Claus Kreß, ‘Universal Jurisdiction over International Crimes and the Insitut de Droit international’, 4 JICJ (2006) 561, 580). Even if this is not the case, subsidiarity lies at the heart of universality. Universal jurisdiction was developed precisely to address the problem of impunity arising out of jurisdictional gaps. Whereas several centuries ago the main factor contributing to impunity was the total absence of a title to jurisdiction where a crime was committed outside the territory of all states (as explained by Steven above), today it is mainly the unwillingness and/or inability of a territorial state (or another state with a strong connecting link) to prosecute and punish its perpetrators that is conducive to impunity. Only when there is a gap – either because the crime was committed beyond territorial reach of all states, or because the state(s) that would be expected to exercise jurisdiction failed to act – is there a need for a third state’s intervention. A contrario, when a state has a legitimate primary interest and the willingness and ability to prosecute, there should be no place for universal jurisdiction.
    Subsidiarity analysis, as far as I am reading the law, is entirely missing from the SWCA. By implicitly assuming that the neighboring countries are unwilling and unable to prosecute war crimes stemming from the conflict, Serbian legislator has unduly introduced political elements into legal arena and assumed powers greater than those delegated to the ICC. Just to briefly remind the readers unfamiliar with the ICC legal framework, the ICC may determine a case admissible only if a state with jurisdiction over a case is unable or unwilling to genuinely prosecute and this assessment must be made in each particular case (see Article 17 of the Rome Statute). Obviously, neither the ICC has to “wait, wait and wait” for a country to start investigating, nor should Serbia (or any other country) be required to do the same. The first criteria in the supranational context of complementarity is that of “ongoing proceedings” – as has now been firmly established by the ICC, the mere promise of future proceedings does not suffice. In other words, the absence of national proceedings, i.e. domestic inactivity, is sufficient to make the case admissible (see e.g. Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Judgment on the Appeal of Mr. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case,ICC‐01/04‐01/07‐1497, 25 September 2009, para. 78.). Disregarding the controversy around this test (some argue that even in cases of a State inaction, the ICC should further take into consideration un/willingness or in/ability), even this basic criterion is not present in LWC.
    And just as a final minor comparative note, Croatian Criminal Code indeed also provides for universal jurisdiction but limits its adjudicative prong according to the main lines of arguments sketched above. According to Article 18(6) of the CC, criminal proceedings pursuant to principle of universality may be instituted in Croatia only “provided that criminal prosecution has not been initiated before the International Criminal Court or a court of another country or that due process before a court of the country in which the criminal offence was committed, a court of the country of which the perpetrator is a national or another court with jurisdiction over the case cannot be expected”. If criminal proceedings were carried out in another country contrary to internationally recognized standards of fair trial, criminal proceedings may be instituted only with the authorization from the Attorney General. Similar limitation was introduced already in 2004, in Article 10 of the Law on the Implementation of the Statute of the International Criminal Court and the Prosecution of Crimes against International Laws of War and Humanitarian Law, which is why I fail to fully grasp the meaning of Mr. Radović’s argument that article 3 of LWC “establishes and regulates organs for prosecuting and trying war crimes“, which is „why Serbia insists on keeping the LWC” („Without the LWC, there would be no War Crimes Chamber, and no War Crimes OTP“). To me this argument seems beside the point, no one contends that Serbia should not exercise its jurisdiction over war crimes in the region or even that Serbia is not entitled to universal jurisdiction (perhaps even in absentia); what is controversial is complete disregard of its subsidiary nature. While exact contours of subsidiarity may still be open to debate, states could, if not applying the Princeton Principles, at least, as a minimum, rely upon criteria established by the ICC in the similar context of complementarity.

  15. Relja Radović Relja Radović

    Dear Maja,

    That is a valid point. However, I tend to disagree with your conclusion. The LWC does not – anywhere – say that the War Crimes OTP has to prosecute. Further, it most certainly does not say that the indictment in such cases has to be confirmed by the War Crimes Chamber. Therefore, I cannot follow your conclusion that the LWC presumes that the other states are incapable or unwilling to prosecute.

    I rather look at the issue of parallel proceedings as the one of procedural law, and as such governed by the Criminal Procedure Code (instead of the LWC). For example, in such cases an indictment could not be confirmed if there were any circumstances temporarily precluding prosecution, such as unavailability of the accused due to the other criminal process. Should the person be equally unavailable both to Serbian and some other state’s authorities, once s/he would become available to Serbian authorities, they would be probably firstly seized with an extradition procedure. (Of course, if someone has been already convicted and senteced abroad, that would fall under the material issues governed by the Criminal Code.)

    Furthermore, I am afraid that the subsidiarity debate is here faced with one misperception of the factual situation. Namely, it seems that the overall fear is that while Croatia (and perhaps Bosnia) would be willing to prosecute some crimes, Serbia is nevertheless continuing to try in absentia the same persons for the same crimes. However, this is not what we are actually facing. For example, none of the cases referred to by Galli above reached the trial in absentia stage, and they all concerned extradition issues. When the requested persons remained unavailable to the Serbian judiciary, they were not tried.

    In that sense, I could agree that subsidiarity plays an important role in terms of assuring effectiveness and success of prosecution. But these issues are dealt on the cooperation level. And indeed, Croatian and Serbian prosecutors (as well as Bosnian and Serbian) have signed agreements on mutual cooperation in prosecuting war crimes. The main motivation for concluding these agreements was to end parallel proceedings, by allowing the prosecutor who might have information or evidence, but does not have overall conditions for conducting a successful prosecution, to transfer that information or evidence to the other (neighboring) prosecutor who might lack them, but has better changes of successful prosecution.

    However, I cannot agree with the analogy made to the ICC system. The Rome Statute is an international treaty, and both Croatia and Serbia are parties to that treaty. That is the reason why they both have laws on implementation of the ICC statute and cooperation with the court, with essentially identical rules on preclusion of domestic prosecution after the initiation of an ICC process (Art. 8 of the Serbian ICC cooperation law).

    Unfortunately, former Yugoslav states do not have a treaty governing their mutual relations in prosecution and trial of war crimes cases. Certainly such a regime would contribute to clarity on the points where someone’s power starts and ends. Most importantly, it would create clear rules which states need to follow, instead of relying on today’s discretionary mechanism. Another question is whether that would be actually achievable.

  16. Maja Munivrana Vajda

    Dear Relja,

    Thanks for your prompt reply and some clarifications. In my comment I have deliberately refrained from assessing the factual situation on the ground and popular (mis)perceptions. When it comes to the legal framework itself, it actually seems to me that we agree that some crucial issues regarding subsidiarity in this specific context have not been explicitly addressed either by the LWC or by other (procedural/international cooperation treaties) legislation. I am obviously not an expert on Serbian legal system, but it seems to me that under Serbian CC, previous conviction abroad is not an absolute bar to new proceedings in Serbia (e.g. if the sentence has not been fully carried out). Not going into the details of procedural regulation, the word “probably” in the context of extradition calls for some caution at least. Call me a sceptic, but subsidiarity in my view should not be left to “discretionary mechanisms” of under-regulated international cooperation either, as this leaves the doors ajar to potential political abuses. I do agree with you that a treaty governing mutual relations in this field is desirable, but at the same time I also share your concern regarding the short-term feasibility of such an outcome.

  17. Toma Galli

    Thank you to everyone for an interesting discussion thus far.
    Let me focus on three things.
    First – the nature and legal effects of LWC Article 3 per se. In his initial post Relja claimed that Article 3 only “establishes specialized organs for investigating and trying cases of war crimes committed in the Yugoslav conflict […] without establishing any kind of jurisdiction, since such jurisdiction already […] exists independently of the contested Law”. In his 11 June post he basically reaffirmed the above by stating that LWC Article 3 “establishes and regulates organs for prosecuting and trying war crimes” while SCC “regulates universal jurisdiction”. In my reply, I essentially argued that – first – LWC contains clear-cut jurisdictional provisions and – second – that it is fundamentally wrong or intentionally deceiving to simply disregard that fact or claim that there is no difference between LWC Article 3 and universal jurisdiction as contained in SCC Article 9. The latter happens to be the official Serbian position. LWC is evidently neither “jurisdictionally empty” nor neutral which would be the case if it had no jurisdictional provisions at all or if it merely copy-pasted the jurisdictional provisions of the SCC. The crucial question then is not whether LWC Article 3 and SCC Article 9 are the same thing (they are not), but rather whether LWC contains jurisdictional provisions (it does) and what their legal effects are.
    Second – the importance of the LWC. I understand that there would be no War Crimes Chambers and Prosecutors Offices in Serbia without LWC. However, I can easily imagine LWC – and the said institutions for this matter – without the controversial Article 3. Accordingly, LWC as such cannot serve as justification for unacceptable extension of Serbian criminal jurisdiction to its neighbours and obsessive attachment to “fake” universal jurisdiction as opposed to jurisdiction which Relja in his initial post labelled “’real’ universal jurisdiction”. In that context, my question why Serbia holds on so dearly to a jurisdictional “bastard” and “fake” legal concepts that are on so many levels politically controversial and legally wrong, when there are real ones readily available, remains unanswered.
    Third – I will argue that the international legal wrongness of LWC Article 3 stems from the fact that it (as a concept based on a priori assumptions that are untenable) flagrantly violates basic standards and rules of international law, and in particular the principle of sovereign equality of states and non-intervention in their internal affairs as contained in Article 2 para 2 of the UN Charter, as well as in customary international law as confirmed by the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the UN Charter, and in particular its principles 3, 4 and 6. As I have elaborated in detail in my initial post, LWC Article 3 obviously cuts deep into the complex and sensitive relations between modern states as well as the very notion of universal jurisdiction and its lawful application. I firmly believe that LWC Article 3 also runs counter to the founding principles of the EU. In that context, let me add that, in my view, any law that “operationalizes” universal jurisdiction must – per se – strictly adhere to international law standards and its rules. Prosecutorial policies, on the other hand, may be whatever prosecutorial authorities of a state decide it should be, which means that a state could be especially keen to prosecute crimes committed, e.g., in Rwanda, the former SFRY or in one of its neighbouring states. Nevertheless, such prosecutorial policies of state’s own choosing can be legally pursued only based on properly regulated and adequately implemented universal jurisdiction and not some kind of artificial unprecedented legal experiment. Anything else would very soon lead to total legal chaos and would generate insurmountable problems in relations between modern states.
    Allow me a few ancillary remarks, too. The question of correspondence of our views to what governments are saying is neither an accusation nor criticism. It is an observation aimed at better understanding the crux of the matter and the positions of its main proponents. At the same time, I remain more concerned with the logic, integrity and credibility of the arguments we are putting forward here then to their political correctness. With respect to what Relja calls “emotional instances aiming at showing who is ‘the bad guy’ historically”, my remark about the devastating – criminal or wrongful, however you want to call it – dossier of Serbia, its nationals and individuals under its overall control is nothing more and nothing less than – a factual observation. It is confirmed by the jurisprudence of international courts and tribunals, as well as national judiciaries, and not a mere personal (biased) impression. I do not play the emotional card when I refer, e.g., to the fact that Serbia is the only state that has ever been convicted by the ICJ for not applying provisional measures aimed at the suppression of the crime of genocide, or that it is also the only state ever to have been convicted for non-suppression of genocide itself. The highest world court also confirmed that the Serbian leadership together with Serbs from Croatia shared the objective of creating an ethnically homogenous Serbian state, in which context the worst international crimes, including ethnic cleansing, were committed. At the ICTY, on the other hand, the gravity of crimes prosecuted and the number of convicting judgments against Serbian nationals and individuals of Serbian origin over which Serbia exerted efficient overall control by far exceeds the gravity of crimes, as well as the number of judgments against individuals of all other nationalities of the former SFRY – in sum, with the ratio of app. 75-25. Facts obviously speak volumes and my claim that Serbia is the last state in the region to have any legal, let alone moral, ground to exercise its criminal jurisdiction on the territory of the neighboring States as regards the conflict on the territory of the former SFRY, is probably an absolute understatement. To turn, in this context, a blind eye to Serbia’s attempts to put itself forward as a chief policeman and a supreme judge in its own case, a priori assuming that no other (primarily responsible) judiciary is capable to prosecute and punish those crimes seems to me totally perverse and very hypocritical.
    The “whose judiciary is better” argument is actually the premise of Serbia’s LWC and was introduced into the debate by Serbia and has its relevance. Nevertheless, it is an argument empty of contents since the qualities of the two states’ judiciaries at this moment, with all due reservations, are hardly comparable. Quoting a 2010 Amnesty International’s report and ignoring subsequent – successfully passed – tests by, for example, the European Commission seems pretty irrelevant in 2016 and will do little to disturb the facts.
    As a final remark, let me say that the leitmotifs behind cooperation in criminal matters and jurisdiction over war crimes committed in the former SFRY are complementary. Still, I believe that sound cooperation in criminal matters, in adherence with all applicable standards, is one of the fundaments of the EU, which makes unprecedented patchwork solutions obsolete. The LWC effectively “killed” the two states’ judicial cooperation in war crimes cases, notwithstanding the peculiar Marić case. I hope that, absent the controversial provisions of the LWC, the two states will again find themselves in an environment conducive to cooperation and effective prosecution and punishment of war crimes. I fully share the view that it is high time for Croatia and Serbia to reset this debate by reducing the tone and separating (as much as possible) political from legal issues. I nominate the abolishment of LWC Article (2 and) 3 as a first step in that direction.

  18. Klara

    Dear Relja, I send you a link to an article re. the LWC for your reading (it is in Croatian). The article has been written by ex Minister of justice Ms. V. Skare-Ozbolt.

    unfortunately, right now i have no time to translate it.

    http://www.tportal.hr/vijesti/komentari/438209/Sto-Hrvatska-treba-poduzeti-u-vezi-kontroverznog-srpskog-zakona.html

    please, note that there are a few mistakes in the article

    a) Opionion of Badinter Commission is No.8 not 2.

    b) Case of murder of three American citizens in Kosovo was resolved in 2012. (Higher Court for War Crimes in Belgrade released two suspects for lack of evidence).

    c) Under the title: Serbia should follow examples of Belgium and Spain part of text is missing in para.2

    after …there is no information that Serbian War Crimes Prosecutor’s Office would have any secret indictment for citizens from the EU states who served in the Homeland War, theoretically it could happen that, say, a British citizen be arrested upon entering Serbia

    rgs.