Capital Zagreb
Time Zone CET (GMT+1)
Country Code 385
Mobile Codes 91,92,95,98,99
ccTLD .hr
Currency Kuna (1EUR = 7.26HRK)
Land Area 56,594 sq km
Population 4.5 million
Language Croatian
Major Religion Roman Catholicism

Croatia’s Controversial Bill Affects Serbia Relations, Poses a Challenge for EU Diplomacy

By Maja Šoštarić

Despite much criticism, on 21 October 2011 the Croatian Parliament passed a controversial and long-awaited Bill that has tested relations with Serbia, and the EU as well. A chill has thus descended over relations between Belgrade and Zagreb, which had seemed to be warming over the past year. Decision-makers in Brussels are now seeking a solution or at least an approach to help put cooperation between these neighbors, and former military adversaries back on track.

In full, the law is titled The Annulment of Certain Legal Acts of the Former Yugoslavia, the Yugoslav National Army and Serbia, but in the rest of this text will be referred to simply as “the Bill.” Prior to the adoption of the Bill, both Croatian and foreign media had written extensively about its possible negative implications. Moreover, the opposition and the president of Croatia did not approve of it. The EU seemed worried, while the Croatian government, already affected by a number of its own internal scandals and affairs, insisted that the Bill was something more than just a pre-election gimmick.

The Bill came as an immediate consequence of an almost 20-year-old indictment against 44 Croatian citizens. The controversial part, besides that it is 20 years old, is also that the indictment also contains the names of some high-level Croatian politicians. The indictment was delivered in September 2011, though it had been issued as early as 1992 by the Military Prosecution of the then-Yugoslav People’s Army (JNA). Serbia justified the indictment as compliant to its Law on Organization and Jurisdiction of Government Authorities in Prosecuting Perpetrators of War Crimes (most recently amended in 2009).

In response to this, the Croatian government swiftly claimed that the indictment was a direct attack on Croatia’s sovereignty. The Serbian law in question states, in Article 3, that Serbia’s state authorities have the jurisdiction to process war crimes and crimes against humanity committed on the entire territory of the former Yugoslavia, regardless of the nationality of either perpetrators or victims.

Universal Jurisdiction and Its Controversies

Linking to that contested provision, numerous knowledgeable domestic and international lawyers started a debate on universal jurisdiction. The latter is a principle in public international law, whereby state A can claim criminal jurisdiction over crimes committed by a citizen of state B outside the territory of state A, and without any direct or plausible relationship of the alleged perpetrator with state A.

States can claim such jurisdiction for either crimes committed on areas considered to be ‘no man’s land’ (such as maritime piracy), or for grave violations, war crimes and crimes against humanity, such as genocide. The proponents of the principle of universal jurisdiction often claim that its purpose is to combat impunity worldwide.

The most prominent examples of cases where universal jurisdiction was claimed continue to regularly spark controversies in legal and political circles. The first example is that of Belgium, which indicted four Rwandans on charges of genocide in Rwanda in 1994; this indictment was made, however, in absentia and without any clear relation to Belgium.

The second well-known example is Augusto Pinochet’s trial in the United Kingdom, with the accused claiming immunity as a former head of state, but with the British House of Lords rejecting this on the grounds that some crimes, such as torture, cannot be protected by immunity.

Also, in 2003, several Iraqis sued George H.W. Bush, Colin Powell and Dick Cheney for the Baghdad bombing of 1991. All of these cases have been extensively debated in public. Later on, following fierce criticism, Belgium abolished its law on universal jurisdiction and introduced a new law on extraterritorial jurisdiction, whereby some connection to the actual territory of Belgium was re-established.

In this context, the Croatian government justified the adoption of its Bill by claiming that the Serbian provision containing elements of universal jurisdiction was controversial and highly uncommon. Nevertheless, is the Bill annulling Serbian indictments the right solution for Croatia at this time? And further, how might future relations with Serbia be affected by the adoption of the law? Finally, what does the EU – membership in which both countries aspire to gain – have to say about the Bill?

Croatian Relations with Serbia: On Ice

As soon as the contested Bill was adopted, Ivo Josipović, the President of Croatia and expert in international law, announced that he would submit a request to the Constitutional Court to reassess the constitutionality of the Bill. President Josipović argued that the Bill was a unilateral act that would be politically and legally harmful for all the parties involved.

With the passage of the Bill, Croatia will consider all Serbian indictments null and void; in response, Serbia will respond according to the principle of reciprocity. All Croatian indictments sent to Belgrade will be ignored, and many large-scale war criminals protected. On the other hand, the Bill will protect Croatian citizens only within the boundaries of Croatia, while those finding themselves outside the Croatian territory could become easier prey for any international warrants issued by Serbia.

The Croatian president added that the Bill would also harm the bilateral cooperation that has already resulted in a large number of trials conducted in Serbia. Josipović had previously suggested to abandon the idea of such a Bill and to embrace the possibility of upgrading the current cooperation mechanism to a bilateral (or multilateral) agreement instead. Some commentators contend that the binding nature of that agreement would lead to possible sanctions before the international courts for the parties found to be in breach of it.

It should not be forgotten that the debate around the Bill is happening in the larger context of mutual and contemporaneous lawsuits. The lawsuit of Croatia against Serbia for genocide, as well as the Serbian counter-suit are still pending before the ICJ. Croatia filed a lawsuit for genocide against Serbia in 1999, and Serbia responded with a counter-lawsuit in 2010. Serbia’s deadline to submit a response to the Croatian lawsuit was 4 November. It remains to be seen how the Croatian Bill will be perceived in this context by both Serbia and the ICJ.

Undisputedly, the Bill will contribute to deterioration in Croatian-Serbian relations, after a period that had seen considerable amelioration. Economically, the countries have strengthened the bilateral flow of investment in recent years, while on the political front Presidents Josipović and Tadić have held a series of meetings, eventually also contributing to the cooperation of the national judiciaries in war crimes processing. Finally, a military cooperation is currently also being envisaged.

Despite all of these apparently hopeful signs, the hectic pre-election atmosphere in both Croatia (elections being scheduled for December 2011) and Serbia (elections planned for April 2012), has now sparked tensions on both sides. Is there something the European Union can do?

The EU’s Position: Still Pondering

A further key element to factor in is the EU and its stance in this discussion. Recently, the Commission recommended granting Serbia EU candidate status depending on the resolution of its dispute with the Pristina government regarding Kosovo matters. For its part, Croatia got the green light for signing its own EU accession treaty in December 2011, and should become a full member on July 1, 2013. Some media in Croatia have written about the “pressure from Brussels” against adoption of the contested Bill.

However, Brussels currently seems not to have a position, at all. In its Croatia Progress Report for 2011, released just prior to the adoption of the Bill, the Commission dedicated a single sentence to its potential consequences: “However, draft legislation proposed by the government in September 2011, if adopted by parliament, would complicate further cooperation with Serbia in this area”.

Moreover, the EC dedicated another two sentences to the dispute in its Country Progress Report on Serbia 2011: “The activation by Serbia of indictments of war crimes issued by military courts, during the conflicts of the 1990s, against citizens of Croatia and of Bosnia and Herzegovina, has occasionally burdened relations with these countries. Serbia has initiated a review of these indictments.”

In actual fact, the EU only requested clarification from the Ministry of Justice of Croatia, and is studying the Bill and its potential consequences. The levels of euro-skepticism in Croatia are more or less stable, while reservations about EU membership in Serbia are mounting due to the tense situation in northern Kosovo.

Moreover, euro-skepticism in both countries is to some extent related to domestically-perceived injustices related to cooperation with the ICTY. Aware of this, the EU is hesitating to voice an opinion as regards bilateral disputes over transitional justice matters.

The EU, of course, would like to stabilize bilateral relations between the two countries in an admittedly trying and complex situation. There is not a lot of room to maneuver, but the EU could re-assert that when it comes to Balkan regional cooperation in war crimes matters, indictment manipulation and pre-election opportunism are always most unwelcome. Other initiatives may be made as well, though the current drama over the future of the Eurozone also means that European leaders will remain largely preoccupied with that much greater issue. However, they might also want to keep in mind that leaving thorny Balkan disputes on the back burner for too long can lead to dangerous and unwanted results.

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