War crimes law poisons Serbia accession talks
By Eric Maurice
It is a typical story of a behind-closed-doors dispute in Brussels that meets national sensibilities back home and becomes a political and diplomatic issue.
On 7 April, a Croatian expert told his colleagues in an EU committee on enlargement that his country did not agree with a document prepared by the European Commission ahead of discussions to open two chapters of Serbia's accession process.
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Media in Serbia said that Croatia was vetoing its EU membership and the Croatian government was reportedly asked by the European Commission and other member states not to stop the process.
The context was quite inflammable, as Serbia was in a campaign for last Sunday's (24 April) elections. And in Croatia, the government has stirred controversies over its rehabilitaion of nationalism.
But EU officials, although annoyed by the move, do not see it as so dramatic.
"It's a storm in a tea cup," a EU source told EUobserver.
"For the EU, it's not a big deal. This kind of things happens at other stage of the process and with other countries. There is nothing to get excited about."
"Croatia did not block. It did not say no, it said it was not yet ready to agree," the source said.
Another EU contact told this website that although Croatia did not veto the process, it was delaying it.
The commission said that "discussions are currently going on, with our support" and that it was "ready to move forward with next steps as soon as the required unanimity among member states is met".
Serbia's EU accession negotiations were launched last December with the opening of two chapters, on financial control and on the normalisation of Serbia-Kosovo relations.
The EU now wants to open two crucial chapters before the end of June: chapter 23 on the judiciary and fundamental rights, and chapter 24 on justice, freedom and security.
"We want to open them early because they are huge chapters and we want to have enough time to go through them," the second source told EUobserver.
One of the first steps to open accession chapters is agreeing on so-called opening benchmarks, which are prepared by the commission and set the requirements to be met by the candidate country.
Talks on the opening benchmarks for chapter 24 are going well. The controversy is over the benchmarks for chapters 23.
Croatia wants the EU benchmarks to include that Serbia must scrap a law on universial jurisdiction.
The legislation passed in 2003 gives Serbia's judiciary a competence over war crimes committed on the territory of the former Yugoslavia in the 1990s.
"We have the right to say that this law affects regional cooperation," a senior Croatian official told EUobserver.
"This a question of national interest and there is 100 percent support for this position in Croatia," he said.
'Mini Hague Tribunal'
Last year, the then-prime minister Zoran Milanovic said that the law was "unacceptable" and that Serbia could not enter the EU with it in place.
His justice minister, referring to the UN tribunal on war crimes during the wars in ex-Yugoslavia, said that with this law, Serbia was trying to have its own "mini Hague Tribunal".
But Milanovic's government did not block the opening of accession negotiations with Serbia.
The new government led by Tihomir Oreskovic has kept the same positions over Serbia's accession and over the judiciary law.
"We are the biggest supporters of enlargement," the Croatian official said. "For any country including Serbia, if you don't have that goal, you cannot expect progress."
The official said that Croatia wanted to "make sure that everyone fulfills the criteria".
Accession negotiations are a legal process, but also a political one, the official said. And good neighbourhood relations and the rule of law are part of these political criterias Croatia wants Serbia to fulfill.
In Brussels, officials understand the political sensitivity expressed by Croatia.
Croatia, which is the newest EU member after joinining in 2013 saw its own accession process delayed by the case of Ante Gotovina, a former general who was hiding for The Hague war crimes tribunal, and then by a border dispute with Slovenia.
Two decades years after they ended, the wars in the former Yugoslavia also still weigh on the relationships with Serbia.
But for the EU, the political context cannot escape the legal reality.
The EU says that laws on universal juridiction are not covered by the community acquis that new member states have to absorb and that it cannot oblige Serbia to drop its legislation on the matter.
"The EU recognises that the existence of universal jurisdiction is well established under international law," a EU official said, adding that "a number of member states have adopted laws granting universal jurisdiction to their domestic courts".
Croatia insists these existing laws are different because they do not harm relations with neighbours.
Abolishing the Serbian law would affect Serbia less than its existence affects Croatia, the official said. He admitted that this particular point is not understoood by Croatia's EU partners.
"There is a certain emotional rejection of Croatia's arguement," he said, adding that Croatia wanted "some kind of guarantee that [its] concerns will be taken into account".
Another issue is the protection of minorities in Serbia, in particular the Croatian minority.
Croatia says that Serbia "has not done enough" and points out that Croats are not represented in the Serbian parliament despite a bilateral agreement signed in 2004.
"Serbia needs to guarantee in practice" minorities' right in education, public administration and over the use of their language, an EU source said.
Chapter 23 has not yet been opened and discussions will be long before it is closed. It’ll be evn longe before the whole accession process is concluded, the EU sources said. That will leave plenty of time to secure guarantees from Serbia.
The EU "will carefully monitor" how Serbia will implement the measures requested by the EU on the "efficient and impartial treatment of war crimes, equal treatment of suspects, proportionality of sentences and protection of victims," a source said.
The discussions are going on and will stay at experts level, because the 27 other member states do not want it to be raised at the level of their ambassadors.
The commission still hopes to be able to open chapters 23 and 24 in June.