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

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.