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.
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?