by Tara Kalaputi
The increased migration flows in 2015/2016 demonstrated the incapability of the EU and countries along the Balkan Route to find a collective and adequate response to fulfilling their obligations towards people on the move. While Serbia and Croatia are similar in their geographical position and legal framework, they differ in their respective political approaches. This paper, therefore, explores the reasons for these differences through examining the legal framework and political environments by reviewing and analysing treaties, conventions, declarations as well as reports covering political responses to migration from both national and international levels. I hypothesise that Serbia adopted a more humanitarian approach towards refugees due to its legitimate self-interest of continuing negotiations for accession to the EU. Croatia, on the other hand, shifted from a humanitarian approach towards securitization due to the aftermath of the elections where the government manifested political center-right tendencies.
The refugee[i] flow of 2015/2016 presented one of the major recent challenges in terms of finding appropriate responses in respect of the human rights of refugees. That has produced considerable political instability in the countries on the Balkan Route[ii] and the EU as a political, economic and security entity. Serbia and Croatia played an essential role primarily due to their geographical position as the gate to Western Europe – the final destination for many refugees. Even though Serbia has a candidate status and Croatia is a member state of the EU, both countries were transit, rather than destination countries. In addition, due to EU directives, both countries implemented a similar legal framework concerning migration and asylum. However, despite the similarities, both countries adopted different approaches towards the refugee increase. These differences are mostly the result of their respective political environments.
In this article, I elaborate on two relevant criteria shaping Serbia and Croatia’s respective approaches towards the refugee crises of 2015/2016 – their legal frameworks concerning migration and asylum and their political environments. The study demanded the use of a qualitative method by consulting primary sources such as treaties, conventions, and resolutions concerning migration and asylum on both national and international level followed by secondary sources such as field reports and local and international NGO reports, online journals as well as watchdog organizations.
Why are the Serbian and Croatian responses to the refugee arrivals of 2015/2016 different despite the countries’ similar legal frameworks for migration and asylum and similar geographic position as transit countries?
Thus, I address the following research question: Why are the Serbian and Croatian responses to the refugee arrivals of 2015/2016 different despite the countries’ similar legal frameworks for migration and asylum and similar geographic position as transit countries? By focusing on the countries’ respective political environments, this paper argues that Serbia’s humanitarian[iii] approach was highly conditioned by attitudes of the EU in relation to its further accession negotiations, while Croatia’s aftermath of the elections with the winning of center-right party contributed to a change of the primarily altruistic approach to one adhering to securitization[iv]. The aim of this paper is to stimulate further academic debate challenging democratization when considering different approaches to the increased refugee arrivals of 2015/2016 by countries part of the Balkan Route and the EU.
First, I elaborate on the legal framework of Serbia and Croatia regarding migration and asylum, including their national legislation as mainly influenced by EU requirements. Second, by comparing their legal frameworks, I conclude that despite the fact that Serbia is not a member state unlike Croatia; both their legislations have been considerably moderated for the purpose of alignment with the EU acquis. Third, I present the political environments of both countries with the intention of highlighting how despite having the necessary legislation, their respective political interests do not coincide. Finally, I conclude their different political environments contribute to different resulting approaches when dealing with the refugee influx.
The migration[v] flows along the Balkan Route were not a novelty for either Serbia or Croatia considering their strategic geographical position as a gate to Western Europe. However, large movements and a dire need for implementation and improvement of migration and asylum policies both on national and international level led to a unique development of a formalized corridor in June 2015[vi] by organizing public transport from Northern Greece to Western Europe within two days. Both Serbia and Croatia have established their asylum systems in the framework of their EU enlargement so as to bring them in line with the EU acquis. Thus, the EU has shown significant commitment by shaping the legislative framework in Serbia which undoubtedly had a beneficial impact on their negotiations for accession to the EU. As a member state, Croatia also had to further improve its legislative system, particularly concerning integration policies so as to comply with the newly established EU directives concerning migration and asylum.
However, despite having adopted relevant legislative measures concerning migration and asylum, Serbia and Croatia developed different responses towards the increased refugee arrivals. The government of Serbia aspired to a humanitarian approach toward refugees to simultaneously gain “political points” in its accession negotiations with the EU. In Croatia, on the other hand, the growing ideological clash between the political center-left and political center-right and its aftermath changed the initially humanitarian approach towards that of securitization.
To comprehend the measures taken by Serbia and Croatia, it is compulsory to enquire into their national as well as international legislative measures.
Serbia has signed numerous international treaties concerning asylum, including the 1951 UN Convention relating to the status of refugees, including its 1967 Protocol. Moreover, Article 57 of the Serbian Constitution guarantees the right to asylum. This right is mainly regulated in national legislation, consisting of the 2008 Law on Asylum and Foreigners and the Law on State Border Protection, the 2012 Law on Migration Management, and the 2014 Law on the Employment of Foreigners. Migration management responsibilities are divided between several state institutions, while the Asylum Office, a separate unit in the Ministry of Interior, is the asylum determining authority. Regarding its status as a candidate country for the EU, Serbia’s legislation has been identified as partially compliant with the EU acquis (European Commission Screening Report Serbia, 2014). Thus, there has been a gradual incorporation of the EU’s wider migration control agenda in its national institutions and policy through several legislative reforms. First, several EU directives concerning asylum were introduced: Directive 2011/95, which provides the right to asylum to third-country nationals and stateless persons as well as standards concerning the status of a refugee, Directive 2013/32 stating the procedure of recognition and withdrawal of asylum, Directive 2013/33 providing standards for reception of asylum-seekers, and Directive 2011/55 regulating the institution proving protection (European Parliament Briefing, 2016). The massive migration flow in 2015 stressed the need that Serbia should further harmonize its national legislation within the EU directives, which according to their Stabilization and Association Agreement (SAA) is imperative for starting the negotiations for accession after the opening of Chapter 24 (Justice, Freedom and Security).
There has been a gradual incorporation of the EU’s wider migration control agenda in its national institutions and policy through several legislative reforms.
There has been a gradual incorporation of the EU’s wider migration control agenda in its national institutions and policy through several legislative reforms.
For that reason, in 2014, Serbia adopted aNational Program for the Adoption of the Acquis (NPAA) covering the period from 2014 until 2018, identifying the weaknesses of the national asylum system and envisaging measures to improve them. They included the provision of adequate financial resources and administrative capacities, sufficient accommodation for asylum seekers and implementation of adequate procedures of integration (European Integration Office, 2014). In relation to that, the developed Action Plan for Chapter 24 as stated in itself “will be given primacy”, which was positively assessed by European Officials? Thus, Serbia has five permanent reception centers for asylum seekers with a capacity of 5340 beds and three centers hosting unaccompanied minors with a capacity of 30 beds. However, in its progress report of 2016, the EU Commission stresses its concern by the facilities’ susceptibility to infiltration by smugglers and other criminal activities, as well as the lack of cooperation between institutions (Commission Staff Working Document, Serbia 2016).
Finally, the New Draft for Asylum Law (proposed by the Ministry of Interior in 2014 and adopted in March 2018) contains significant improvements: linguistic refinements avoiding contradictions, introduction of higher standards in terms of protection of asylum seekers, refinement of deadlines and acceleration of procedures, introduction of the gender dimension, improvement of acceptance of unaccompanied minors etc. The Draft also introduces equality of treatment of refugees and persons under subsidiary protection, granting de facto uniform status for all persons seeking international protection. However, Serbia has failed to implement these laws and the United Nations High Commissioner for Refugees (UNHCR) have expressed their concern regarding aggravation of the situation in Serbia concerning refugees waiting in the open due to lack of resources, poor conditions in the reception centers and mistreatment by administration officials (Murray, 2015).
Additionally, Serbia has participated in bilateral and international agreements with countries on the Balkan Route. Initially, after the closure of the Hungarian border, relations between Serbia and Croatia were deteriorating resulting in interruption of traffic between the two, but were soon re-established due to the need for legal movement of refugees to EU countries, provided by the 17-point plan (European Commission Press Release Database), which forecasts the distribution of refugees along the route, and calls for the implementation of re-admission agreements with regard to third-country nationals. Consequently, in February 2016, the police directors of Serbia, Croatia, Austria, Slovenia and Macedonia established the Joint Declaration restricting the flow of migration in the Western Balkans, allowing entry primarily to those who have the appropriate identification documents. That followed the Declaration of Joint Border Management, by representatives of the Ministries of Internal Affairs of the same countries, once again confirming the dominance of security issues, especially border security.
The migration and asylum system in Croatia is based on the Constitution of Croatia, the 1951 UN Convention relating to the status of refugees and its 1967 Protocol, the EU acquis in the field of asylum, and the Asylum Act with accompanying subordinate legislation. The Asylum Act came into force in 2008 and was amended in 2010 and 2013 as the Law on International and Temporary Protection to be fully aligned with the EU acquis. It provided accelerated asylum procedure by the Service for Foreigners and Asylum and the Ministry of Interior, as well as four regional administrative courts (Zagreb, Rijeka, Osjek and Split) dealing with asylum appeals.[vii] Moreover, since its accession to the EU in 2013, Croatia became part of the Dublin Regulation which determines the state responsible for examining an asylum application – normally, the State where the asylum applicant first entered the EU. However, the Commissioner of Human Rights by the Council of Europe Nils Muizhnieks states in his April 2016report that only 10% of the asylum seekers who transited through Croatia were fingerprinted there and reported to the EU Asylum fingerprint database (EURODAC). In November 2015, Croatia adopted the national Human Rights Structures Joint Declaration on the protection and promotion of the human rights of refugees and migrants. Additionally, the Draft Law on Amendments to the Alien’s Law contains a significant positive provision, as it contains an expended list of alternatives to detention and broadens the scope of vulnerable persons (Niels, 2016).
Another significant improvement is the amendments to the Asylum Act of 2015 which ensure integration of refugees and persons under subsidiary protection, guaranteeing their right to accommodation, work, health protection, education, legal aid, social welfare, family unification, freedom of religion and assistance in integrating into society. In relation to that, there are two reception centers in Zagreb and Kutina with a capacity of 700 places, where legal aid, psychological assistance, and language courses are provided. However, the Commissioner of Human Rights by the Council of Europe reported a lack of legal aid and insufficient language courses. Moreover, there is one detention center in Jezhevo with a capacity of 140 persons, where legal aid and medical assistance is provided. However, authorities tend to prolong the stay of detainees and continuously practice obliging them to pay for their accommodation and removal according to the 2001 Aliens Law. Regarding unaccompanied minors, there was a Migration Policy 2013-2015 for the appointment for special guardians for unaccompanied children. However, it has been reported that they lack the necessary training and the criteria of appointment are unclear, and centers face continuous disappearance of children (Niels, 2016).
Regarding integration, the Migrant Integration Policy Index (MIPEX) 2015 ranked Croatia 30th out of 38 countries. This means that newcomers to Croatia face barely half-way favorable policies for their integration. There is a strong need for work-related language courses, access to vocational training, targeted educational support for children, health access and political participation.” Integration is seen as a key component to be regulated as under the EU resettlement and relocation programs Croatia is to accept 1618 refugees (European Commission, 2015).
The legal framework concerning migration and asylum in Croatia is different than the one in Serbia due to its responsibility to examine the Dublin Criteria and to carry out transfers to another member state. Thus, in 2015, 30 out of 162 applications succeeded in refugee status, 7 in subsidiary protection, and 115 were rejected (Asylum Information Database, 2017). Serbia’s Draft Asylum Act introduces the concept of a “safe third country” with which an asylum seeker will be allowed access to the asylum procedure in Serbia if they have been denied asylum for having passed through a safe third country prior to Serbia. Thus, in 2015, 579 518 people expressed an intention to seek asylum, but only 586 lodged an application: 16 received refugee status, 14 subsidiary protection, and 40 were rejected. In both countries, the procedure often was suspended because the applicant was no longer present in the country (European Commission, 2016). In addition, Serbia has shown considerably more preparedness in its capacities – holding five permanent reception centers with a total capacity of 5340 beds, while Croatia holds two with a capacity of 700 beds total. Both countries, however, faced criticism from the EU in terms of coordination between institutions and lack of professional capacities.
Furthermore, Serbia and Croatia participated in international agreements dealing with the restriction of the refugee flow. However, the 17-point plan being the only document from the EU that includes all Western Balkan countries does not include clear indications for border control. Countries are asked to “discourage” the refugee flow and “look for financial support from international institutions” that would deepen their borrowing. Additionally, The Joint Declaration reaffirms the possibility of the recognition of refugee status according to the nationality of the applicant, which is contrary to the definition of a refugee under the Convention relating to the Status of Refugees. Another discrepancy is that the determination of the nationality of the asylum seeker is left to interpreters and their language skills. Lastly, this declaration denies the right to family unity which is guaranteed by international and European law. Serbia and Croatia’s role in bilateral and international agreements outside the jurisdiction of the EU shows their commitment to finding common solutions. However, it also shows their dedication to broadening their security agenda by which the so-called “refugee crisis” was slowly turned into a security threat.
To comprehend how the political environment in Serbia influenced its approach and motivations towards the refugee influx from 2015 to 2016, it is essential that two factors are mentioned: the government’s aspiration towards EU accession and its political disputes with Kosovo.
Predominantly, Serbia has been perceived as the country whose government has offered the most humanitarian approach towards refugees alongside the Western Balkan route
Predominantly, Serbia has been perceived as the country whose government has offered the most humanitarian approach towards refugees alongside the Western Balkan route (Senada, 2016). As negotiations with Serbia officially took place in January 2014 when an unprecedented refugee flow was initializing, its government showed a legitimate self-interest by allowing the EU to intervene in its migration policy. That contributed to the successful finalization of the action plan required for the opening of Chapter 24 on Justice, Freedom and Security. Consequently, the Commission’s 2015 Progress Report highly encouraged Serbia to establish a constructive approach towards the weakening asylum system due to the increased mixed migration in close cooperation with EU and other member states.[viii] In the following year, The Commission adopted an even more favorable tone due to Serbia’s consistent upgrading of capacities when dealing with migratory flows:
Some progress was made in areas such as reform of the police, border controls and organized crime with the adoption in December 2015 with the first serious and organized crime threat assessment (SOCTA) in line with Europol requirements. Serbia has been affected by the refugee and migration crisis, during which it has played an active and constructive role and cooperated with neighboring countries and Member States while managing mixed migration flows (European Commission, 2016).
However, the report also emphasizes the importance of further efforts to tackle the phenomenon of unfounded asylum applications lodged by Serbia’s nationals in EU Member States after its visa liberalization. Even though debates about the suspension of the visa-free regime were eventually replaced by debates on the refugee flows, it demonstrated the desire for cooperation between the government of Serbia and the EU in tackling irregular migration. Furthermore, the Prime Minister of Serbia Aleksandar Vuchich adopted a highly humanistic rhetoric and approach when addressing the refugee increase, himself visiting refugees in Belgrade parks and distributing humanitarian help.
Nevertheless, Serbia’s role in managing the increased refugee flows was not as challenging as the one by the member states in Western Europe, as it was solely a transit country. It is highly significant therefore to contrast the government’s altruistic approach towards the refugees with the unsympathetic approach towards the dispute with Kosovo. Since Kosovo’s declaration of independence in 2008 against the will of Serbia, Serbia has been resisting to the integration of Kosovo into regional and international institutions (European Commission, 2016). In addition, the Serbian Constitution designates that Kosovo is an “integral part” of its territory, not recognizing its independence until the present day and maintaining parallel structures in the Serb-populated north. Resolving the deep-seated rivalries has been placed as priority conditions for both of the counties’ shared goal of EU entry. Consequently, there have been numerous agreements between Serbia and Kosovo[ix] that contributed to the EU granting Serbia a candidate status in 2012 and signing SAA with Kosovo in 2015. However, their long-lasting tensions persist. The political rhetoric adopted by politicians tends to be nationalistic[x] and conflicts continue to mount.[xi]
Croatia’s approach to the refugee flows was predominantly influenced by the parliamentary election in November 2015 followed by the presidential election in January 2015, as well as its role on the Balkan Route as a member state of the EU.
In 2015, Croatia continued to be governed by a center-left coalition government – Social Democratic Party (SDP) in alliance with People’s Coalition, led by Prime Minister Zoran Milanovic (Petak et al, 2015). During the parliamentary election, he was challenged by the center-right Patriotic Coalition led by the Croatian Democratic Union (Hrvatska Demokratska Zajednica, HDZ). SDP framed the refugee increase as a need to both be humane, but also to attend to the country’s dependency on Germany (Senada, 2016). In addition, the Minister of the Interior Ostojic travelled to the field briefing journalists and foreign officials daily (Ostojic, 2016). As elections were up-coming, the government engaged significantly in taking a constructive approach towards the migratory flow which, if not successful, could undoubtedly be exploited by the opposition. Thus, in a press release by the political opponents HDZ, it was stated: “We are asking the Croatian government clear responses and concrete security measures with regards to the growing wave of emigrants from Arab countries” (Mulalic, 2016, translation). In response, SDP stressed the need of Croatia to provide safe passage to refugees without posing security threats by an abundance of migrants staying. In their discourse, political opponents differed in their rhetoric – the social democrats referred to “refugees” while the conservatives referred to “(economic) migrants” (Jakesevic and Tatlovic, 2016). Unlike the parliament, the new President of Croatia, Kolinda Grabar- Kitarovic, frequently demanded urgent meetings of the National Security Council, highlighting the use of the army to protect the borders (Senada, 2016). Eventually, securitization sought implementation through several legislative amendments to the State Border Protection Act and the Defense Act by which the army would provide border protection (Hina, 2016).
In relation to providing a rapid and effective passageway to refugees to Western Europe assisting with humanitarian aid as well as securing its national interests, Croatia was the first country to provide state-funded train service through the newly established transit centers until the Slovenian border (Larsen, 2016). However, the local population did not have contact with the refugees and the media was their only source of information on this issue. The media had adopted a more reserved tone after the change of the social democratic government to the more national conservative. Political rhetoric focused on regulation of migration by the EU and securitization. As a result, in June 2016 Croatia erected a fence on the Serbian border in Batina to deter migrants and stop irregular migration (Milekic, 2016).
Surely, the EU played a more pressuring role for Croatia during the “refugee crisis” considering its status as a member state, particularly showing discontent with its exploitation of Serbia. The first intervention of the EU towards Croatia was due to its inability to manage the sudden massive migration flow after the closure of the Hungarian border in September 2015, after which the authorities halted all cargo traffic and close its border crossings with Serbia. In response, the Serbians imposed a counter-blockade, which was highly criticized by UN officials as a “clear breach of the free trade agreement by which Croatia is bound by its SAA (Weber, 2016) which eventually brought to normalization of the relations and lifting the bans. However, tensions reappeared when in April 2016, at a meeting in the EU Council, Croatia put a veto on Serbia’s accession talks for Chapter 23 dealing with the judiciary and human rights (Anastasjevic, 2016). After pressure from the EU and dire dissatisfaction of Serbia’s government, in June 2016 it lifted the veto and enabled Serbia to continue negotiations for accession. Finally, the EU showed its concern at Croatia’s decision to erect a fence on the Serbian border the same month, thus once more causing tension.
Although Serbia and Croatia share the same geographical importance in that they are both part of the Balkan Route and transit countries, their respective political environments have greatly influenced their approaches towards the increased refugee flows.
While Serbia’s prevailing attitude was welcoming all throughout until the official closure of the Balkan Route, Croatia presented a shift of humanitarian towards more reserved stance aiming at securitization. The reason for that are the countries’ respective national interests. The Serbian government’s amiability and the introduction of migration policy compatible with the EU were largely influenced by its political needs due to the EU acquisition negotiations. Nevertheless, it is indeed questionable whether Serbia would adopt the same opinion if it was a destination, rather than a transit country. Itself having one of the highest immigration rates in Europe[xii], and an ever-lasting dispute with Kosovo that reveals nationalistic tendencies, its performance in accepting and integrating refugees from the current refugee flows is disputable. On the other hand, Croatia’s initial humanitarian approach by SDP had different incentives. Firstly, in the domestic political domain, they wished to pursue their interest within the liberal part of the electorate prior to parliamentary elections. Secondly, Croatia tried to get the support of Germany in terms of foreign policy, in order to strengthen its foreign political position. When HDZ came to power, however, there were many strong tendencies towards securitization that brought into existence the State Border Protection Act and the Defense Act by which the army would provide border protection. It is, therefore, questionable whether securitization would have been more stern if Croatia had been expected to receive and give international protection to a larger number of refugees within its borders.
Concerning the political relations between the two countries, there have been continuous attempts to normalize the tensions followed by further provocations. Putting a veto on Chapter 23 for Serbia’s negotiations, Croatia pointed out that a Serbian law giving its courts universal jurisdiction on war crimes could be used against Croatian nationals, and that Serbia was not protecting minority rights satisfactorily which is incompatible with the EU values. Even though the veto was lifted, the same month a fence was erected by Croatia to prevent irregular migration which was highly criticized by Serbian Authorities and the EU. Certainly, Serbia and Croatia found it hard to devise a common approach and take coordinated measures in dealing with the refugee increase mainly due to their different relations with the EU as well as existing past conflicts.
The increased refugee flows of 2015/2016 have shown considerable weaknesses both in individual approaches from different countries alongside the Balkan Route, and the functioning of the EU as a political and economic body. Serbia and Croatia are two countries with similar roles along the route due to their geographical position and legislative framework concerning migration and asylum but adopted different responses to the refugee influx particularly because of their political environments.
Serbia, in pursuit of its goal to become an EU member state, agreed to facilitate the transformation of its national legislation concerning migration and asylum to conform to the demands of the EU. It opted for policies that would appeal to the EU as humanitarian, strategically paving its way towards further negotiations for accession. However, implementation was partially applied due to lack of cooperation between institutions, lack of resources and inadequate conditions at reception centers. Croatia had similar approach towards amending existing laws in accordance with the EU acquis, though implementation of the integration policy was hardly executed due to lack of resources and political will. Even though a member state of the EU, Croatia, similarly was perceived as a transit country by the refugees. However, both have shown considerable devotion in broadening their security agenda by participating in international agreements so as to restrict the flow of the refugees, thus shaping it into a security threat.
Additionally, what structured the differences in the approaches of Serbia and Croatia when dealing with the increased refugee flows were the different political environments.
Additionally, what structured the differences in the approaches of Serbia and Croatia when dealing with the increased refugee flows were the different political environments. Serbia’s government has generally been perceived to offer the most humanitarian approach along the route. However, having in mind its relations to Kosovo, the question remains whether Serbia would have adopted such an altruistic tone had it already been a member state or had an obligation to integrate refugees. In Croatia, the aftermath of the elections bringing to power the center-right party HDZ has shifted its previous humanitarian approach towards one that calls for securitization and protection of national interests. Yet, whether the current or the previous government would have adopted a more humanitarian approach had Croatia been a destination country–is contentious. Additionally, clashes between its sovereign right to control its borders and its humanitarian obligation to help people in need contributed to tensions with Serbia resulting initially in traffic ban, further to veto on Serbia on its accession talks for Chapter 23 and ending with building a fence on the Serbian border.
In conclusion, Serbia and Croatia’s approaches to the refugee flows of 2015/2016 alter due to the different aspiring political interests. The incapability to find a common coordinated solution between the EU and the countries along the Balkan Route inevitably challenges the ethical standards and democratic values they are made upon.
Tara Kalaputi is a Macedonian national who holds a joint Masters in Human Rights and Democracy in South-Eastern Europe from the University of Sarajevo and the University of Bologna, where she concentrated on research on migration issues in the region. Her MA thesis was on the detention of unaccompanied minors in Bulgaria through a theoretical framework of securitization, for which she consulted relevant state institutions and organizations dealing with migration and asylum issues in Bulgaria.
The views in this article are those of the author alone and do not necessarily reflect the views of OxMo.
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