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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. Read the rest of this entry…