The European Commission believes that the issue of the Serbian law on universal jurisdiction for war crimes should not be a condition for the opening of Chapter 23 (Judiciary and Fundamental Rights) in accession negotiations with Serbia and has advocated this position from the start.
According to a European Commission non-paper, an internal document that has been leaked to the public, the Serbian Law on Organisation and Competence of Government Authorities in War Crimes Proceedings, by which Serbia has declared jurisdiction for trying war crimes committed in the territory of the former Yugoslavia regardless of the nationality of perpetrators or victims, "does not constitute a violation of the sovereignty" of the countries of the former Yugoslavia and does not interfere in the affairs of other countries.
Croatia did not give the green light for the opening of Chapter 23, demanding that Belgrade revoke regional jurisdiction for war crimes, guarantee the rights of the Croat minority in Serbia and ensure full cooperation with the Hague war crimes tribunal.
The Commission says in its internal document that even if Serbia deleted the article of the law on jurisdiction over the territory of the former Yugoslavia, it would still be able to prosecute war crimes under the universal jurisdiction principle "which is actually not disputed, and even acknowledged by the Croatian authorities".
The Commission says that the issue should be solved "through cooperation between the two concerned States as it is for any case where a conflict of jurisdiction arises."
It notes that "Serbia is not the only European country which has limited the application of universal jurisdiction over crimes committed during a specified conflict," citing a French law of 1995 relating to crimes falling within the temporal and territorial jurisdictions of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and a British law applying to war crimes committed between 1 September 1939 and 5 June 1945 in Germany or German-occupied territory.
The Commission says that there are no EU laws on universal jurisdiction, but acknowledges the existence of universal jurisdiction in several member states that have laws empowering domestic courts to exercise universal jurisdiction.
The Commission's position was anticipated in February 2015 by Simon Mordue of the Directorate General for Enlargement, who said during a European Parliament debate on the progress of Serbia that requirements not provided for in the acquis communautaire and the negotiating framework should not be added as a condition for the opening of policy chapters.
However, the Commission does not decide on any steps in the accession process and can act only on the basis of the mandate given to it unanimously by the member states.
For years the European Commission has been recommending opening accession negotiations with Macedonia and its recommendation is supported by nearly all member states. However, Greece refuses to give the green light, disputing the constitutional name of Macedonia, and a country's name is not an issue in the acquis communautaire.
According to the Negotiating Framework for Serbia, which the Council of the EU adopted on 17 December 2013, negotiations on Chapter 23 (Judiciary and Fundamental Rights) and Chapter 24 (Justice, Freedom and Security) should be opened at the start of negotiations and closed at the end of the process to give the country enough time for legislative alignment and to start implementing the relevant laws.
The Negotiating Framework says, among other things, that regional cooperation and good neighbourly relations are "essential parts of the enlargement process" and that Serbia's progress will be measured against its undertaking to resolve "outstanding issues and legacies of the past, in line with international law and relevant Council conclusions, and in conformity with the principle of peaceful settlement of disputes in accordance with the United Nations Charter, including, if necessary, the compulsory jurisdiction of the International Court of Justice or arbitration mechanisms."