Die Konfliktregion Südosteuropa und das internationale und nationale Strafrecht

in Justice Without Borders
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Croatia and the other successor states of the Yugoslav Federation are tied to Germany by a common history. At times, more than 630.000 Yugoslav citizens lived in West Germany as so-called “guest workers“ (Gastarbeiter). Geographical and cultural proximity, as well as personal and economic relations and friendly cooperation notwithstanding, … occasional conflicts occur and demand a mutually agreed solution. This includes conflicts related to international legal assistance. Behind questions of procedure about who has to provide assistance when and under what conditions lurk historical frictions within domestic and foreign policy constellations, which still exert an effect until the present day. Questions of international legal assistance take on the broader form of coming to terms with the past. Examples for this are the judgments of the State Supreme Court at Munich in the murder case of Đureković against Krunoslav Prates of 16 July 2008, and against Josip Perković and Zdravko Mustać of 3 August 2016. The findings of the court and recent Croatian studies show the degree to which the socialist Yugoslav government under Tito, but also later governments until the democratic reform and dissolution of the Federation, were at permanent loggerheads with political opponents especially from Croatia. The Yugoslav government of the day used a two-prong approach against Croatian dissidents and especially leading members of the Croatian exile community: On the one hand by using the tools of the criminal law and international legal assistance, on the other hand through extra-legal violence and assassination orders. From 1946 to 1989, of 68 politically motivated murders of Croatian exiles, 39 were committed in Germany. This “special war“ of Socialist Yugoslavia against dissidents in its exile community proved to be a harbinger of the ensuing war in Yugoslavia from 1991 to 1995. This war in 1993 became a major cause for the creation of the icty. As its first German trial and appellate judge, Wolfgang Schomburg was part of the great international attempt to re-establish “peace through justice“ by means of judicial intervention in the conflict area of the Balkans. Without this international tribunal and its 25 years of jurisprudence, the criminal law environment for the subsequent reconciliation in the conflict region could not have come about. A late contribution to addressing this chapter of Yugoslav, Croatian but also of German history, was made by the court at Munich in its judgments of 2008 and 2016. The option of surrendering the suspects from Croatia to Germany for the purpose of trying them there became possible only after Croatia’s accession to the eu under the European Arrest Warrant framework, and after controversies between the German and Croatian – and within the Croatian – judicial systems had been put to rest.

Justice Without Borders

Essays in Honour of Wolfgang Schombourg

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