Establishing an independent judiciary is a crucial step in a country’s transition from communism to democracy, because it allows the rule of law to take the place of autocracy and to rein in the arbitrary use of power (Dallara, 2). In this op-ed, we suggest that one of the most salient challenges to Croatia’s difficult transition has been its judiciary’s inefficient handling of war crime trials; we argue that in order to counteract the deterministic influence of Croatia’s long-fought struggle for nationalism, and the internal forces that push towards centralism in Croatia, international bodies like the ICTY and the EU have been – and will continue to be – the key to major domestic judicial reforms.
The Failures of Domestic Judicial Reform
Croatia’s history under various authoritarian regimes has had an extraordinary influence on the development of its judiciary. Under the Yugoslavian Socialist Republic’s Constitution of 1974, judges were elected and controlled by their respective political parties. The parties relegated little power to the courts, which at this point did not even have the power of judicial review (Dallara, 9-10). In 1990, Croatia’s first independent constitution gave the Croatian Minister of Justice the power to appoint and remove judicial personnel. Although the legislature created the State Judicial Council (SJC) in 1993, to appoint, remove, and discipline judges, this body was largely viewed as “a lever in the hands of the executive” until 2000, because the ruling party held the power to appoint all SJC members (Freyburg, 45).
Constitutional reforms in 2000 took some steps to reduce political influence on judicial appointments, but evidence from the preceding decade suggested that exclusionary, ethnocentric principles had not completely faded from practice. The persistent challenges facing Croatia’s judiciary are epitomized by the country’s problematic treatment of war criminals from the Croatian War of Independence (1991-1995), in which hundreds of thousands of atrocities, including 20,000 murders, were committed against both Croats and Serbs. As the judiciary is charged with corruption, inappropriate treatment of witnesses, and disorganized proceedings, 1.5 million cases (including those dating back several decades) have yet to be resolved.
“There will never be a good time to execute warrants and arrest notorious public figures. There is always some short-term political consideration at work, some local power struggle or regional election … Broad concerns of this kind will always occupy the minds of those who have to struggle with the reconstruction of divided societies, and such issues will, of course, be uppermost in their minds.” –Del Ponte
International Pressures and Judicial Reform
The ICTY
We believe that the International Criminal Tribunal for the former Yugoslavia (ICTY) has had a largely positive effect on Croatia’s national court system, which attests to the important role that international bodies can play in spurring domestic judicial reform. Established in 1991, the ICTY’s main objectives are to deliver justice to victims of war crimes, determine historical truth, and assist the transition of those countries established by the dissolution of the former Yugoslavia. Through its work, the ICTY has also set new standards of responsibility for war crimes, crimes against humanity, and genocide, thereby improving not only international criminal law and providing valuable experience for the establishment of the ICC, but also inducing domestic judiciaries to start adjusting their standards to those set by the ICTY.
In 2003, Croatia formed four new chambers within the County Courts that specifically deal with war crimes cases, as well as departments that deal with witness protection and support. Since 2012, it has become increasingly common for Croatian judges to complete two extra years of training (at state academies dedicated to war/political crimes) after passing the state bar exam, which has helped to sharpen the lines between politics and the law. Thus, Croatia’s experience with the ICTY illustrates the important watchdog influence that international bodies can have on impelling important domestic reforms.
EU Ascension
The international community has criticized Croatia’s judicial reforms, viewing them more as a political bid to gain membership to the European Union, rather than an internally-derived step towards democracy. In 2001 Croatia signed a ‘Stabilization and Association Agreement’ with the European Council; this agreement set forth a number of provisions that Croatia had to comply with or implement in order to join the European Union (Blitz, 125). These reforms aimed to effect a greater commitment to values of impartiality, independence and neutrality in the judiciary, in an effort to reconcile the ethnic bias that had defined the judiciary during the previous decade. However, these reforms were not concretely implemented until 2009-2010, after the Sanadar government was brought down on charges of corruption.
“It became obvious that Croatia’s aspiration of becoming ‘European’ and joining the ‘in-group’ EU called for different, non-compatible action than prescribed by its self-conception as a heroic, innocent nation” – Cristina Dallara
It is widely accepted that these recent reforms have been a direct result of EU conditionality, which the proceeding Kosor government implemented in the form of an amendment to the Constitution to strengthen judicial independence. Croatia’s ambassador to Italy stated that “the EU acted as an important catalyst for change during the 6 years of negotiation: many reforms could not have been implemented without stimulus from the outside…” (EUI Times, 9 July 2013). The prospect of European Union membership for Croatia was undoubtedly appealing, more so than continued isolation as a transitioning state. However, the staying power of the reforms is called into question when we consider that they were effectively imposed as a condition by a third party arbiter with socio-economic advantages for the reigning regime, as opposed to as an initiative derived within the regime itself.
To learn more about the Stabilization and Association Agreement, click here: http://europa.eu/rapid/press-release_IP-05-122_en.htm?locale=en
Forging a Productive Partnership
Croatia’s case spotlights the tension that exists between nationalism and weak institutions in many post-transition countries. The lingering effects of old regimes must be addressed by international bodies to obtain future cooperation and to bolster a fragile democratic regime. However, international justice cannot be achieved without domestic cooperation, because tribunals lack enforcement powers to compel state compliance without court orders. Thus, Croatia’s ongoing struggle to prosecute war crimes illuminates necessary cooperation between domestic and international bodies, and the constant interplay between a country’s independence and its responsibility to maintain international standards of human rights and constitutionality. Despite these and other challenges on Croatia’s path to a more accessible, transparent, and efficient judiciary, we feel that international pressure, in tandem with domestic cooperation and communication, will be the most important catalyst for Croatian court reforms.
Law and Courts in Europe 
Hey
Amazing article but in Croatia, the type of government is a Unitary parliamentary constitutional republic. In Croatia, the legislative power is vested in a Sabor. The head of the government is Kolinda Grabar-Kitarović.
http://www.confiduss.com/en/jurisdictions/croatia/politics/
It’s true?
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