Denying genocide and celebrating war criminals may only be stopped by the adoption of a law that sanctions the actions
Cristian Dan Preda, European Parliament's Rapporteur for Bosnia and Herzegovina, requested mid-April an opinion and position of the European Commission regarding genocide in Srebrenica denial and celebrating war criminals in the Republika Srpska, asking the Commission what they were going to do to stop these activities. It is almost depressing that after almost 25 years since the Srebrenica genocide and after a number of rulings of two UN courts – the International Criminal Tribunal for Former Yugoslavia and the International Court of Justice – and several resolutions of the European Parliament (accepting the rulings) it is recommended but also ordered to accept them (like it was done with the 2018 resolution). At the same time, international officials are going around in circles and fail to realize a way to stop and oppose the constant denial of Srebrenica genocide coming from the Republika Srpska and Serbia, strongly supported by the Russian Federation.
European Parliament resolutions, based on the rulings of the ICTY, made in 2005, 2009, 2015, and 2018, clearly state that genocide did happen in Srebrenica as well as who was responsible for it. The most recent resolution of 29 November 2018, reads that “the European Parliament regrets the reiterated denial of the Srebrenica genocide by some Serbian authorities“, reminding them that “fully cooperating with the International Criminal Tribunal for the former Yugoslavia, and its successor the International Residual Mechanism for Criminal Tribunals, also implies fully accepting and implementing its rulings and decisions”, and stresses “that the recognition of the Srebrenica genocide is a fundamental step in Serbia’s path towards joining the European Union”. (European Parliament resolution on the Report on Serbia, whose integral part and the abovementioned text/amendment was proposed by Slovenian European Parliament member Igor Šoltes)
Dan Preda’s question related to whether the European Commission is aware of the fact that genocide is denied and that war criminals are celebrated, and whether it is aware of the consequences, matches the type of questions we used to hear in the 1990s – are you aware that the capital of a European country, Sarajevo, has been held under siege for years, and that fascist snipers and gunners kill civilians on a daily basis. Just like at that time, everyone today knows what is happening, and the denial policy coming from the RS and Serbia, to which the international community fails to oppose, is the key driver of the disturbance of security situation in Bosnia and Herzegovina, the region, and the EU.
There are countless examples that genocide denial as well as celebration and affirmation of war criminals are basis for the disturbance of security and spreading the Great Serbia and Great Croatia projects in BiH, and the recent activities of the RS authorities to arm auxiliary police forces, announcing that Russian volunteers will participate in them (and also get citizenship and documents of the RS) are more than alarming proof of sabre-rattling in the Balkans, followed by loud war threats. Of course, the question arises as to what extent the EU itself is burdened by its internal turmoil and crises that have been evident and present long before the migrant crisis and whether the EU would be caught up by the fire of a possible conflict in the Balkans.
More than a decade ago, just after first genocide rulings in The Hague, an idea of state-level adoption of a law on denial of genocide and other crimes emerged in BiH. Now that the security situation is escalating both in BiH and the region, Dan Preda refers to the judgment in the case of Radovan Karaždić thus reminding not only about denial, but only about the content and the essence of the judgment which clearly states that during the war and through four joint criminal enterprises, Serb political, military, and police forces committed unprecedented crimes in BiH, including genocide. Some international officials then recalled the law on genocide denial that has been waiting for years to be adopted by the Parliament of BiH. It cannot be adopted because political and legal successors of the ones who committed genocide and crimes are sitting in the Parliament of BiH and, in accordance with the Constitution of BiH, they may be found throughout the structure of authorities in BiH. Everyone knows this. And they are silent. Why would the ones who celebrate criminals and genocide perpetrators adopt a law that prohibits them from doing that? Especially if no one requests them to adopt it? And if they have been doing so without any local or international consequences?
The story of adopting the law on genocide denial at the level of BiH now reminds of the unsuccessful story of resolutions of the UN Security Council from the 1990s when “protected” enclaves of the UN were established, when cessation of the conflict was requested through resolutions, they urged for respecting international conventions, especially Geneva conventions, etc. It seems that the current story on the law on genocide denial is a daily political story, and by the lack of interventions the international community supports the development of such situation. How can one interpret the fact that the ones who are the loudest deniers of genocide, crimes, and rulings of the two international courts in Brussels, receive assurances of highest consideration and respect without anyone asking them about their activities?
“The need to adopt a law on genocide denial is more than obvious. The newly elected authorities of Bosnia and Herzegovina now have a chance to show that they are dedicated to the rule of law and good management and to adopt the relevant legislation”, OHR commented after the judgment in the case against Karadžić. Actually, this was a message to the citizens of BIH that this is not a concern of the international community, but of the local leaders who are supposed to agree on, I am free to say, the essence of all relations in BIH and the region, starting from who was responsible for the war, who committed the genocide, whose responsibility it was, who…? Why did the UN establish the ICTY is local leader can and should agree and punish the perpetrators? To clean their conscience?
Is it necessary to remind Mr Inzko, the High Representative in BIH in charge of implementation of the Dayton Agreement (which in many instances refers to this as well), that in his country, Austria, there is a law (number 148) from 1992, amending the previous law from 1945, that prohibits the National Socialist German Workers’ Party and supporting Nazi goals. The 1992 law prohibits denial, strong trivialization, support or justification, in a public manner that is available to many persons, of the National Socialist genocide and crimes against humanity. This action is a criminal act if there is a political intention, propaganda or if it includes a “lie about Auschwitz”. Such a case in Austria carries from one to 20 years in prison. Do Inzko, Dan Preda, the European Commission or the European Parliament really think that Milorad Dodik and SDS, Aleksandar Vučić and Vladimir Putin would agree to adopt a law on denial according to which genocide deniers would accept jurisdiction of BiH, i.e. that they could be sentenced to multiple years in prison.
Two proposals on genocide and holocaust denial have been unsuccessfully submitted to the Parliament of BIH. The first was submitted under the title “Proposal of a law on denial, minimization, justification, or approval of holocaust, crime of genocide and crimes against humanity” on 5 September 2011 by Professor Azra Hadžiahmetović and Beriz Belkić, the then members of the Parliament of BiH. Among other things, the Proposal states the following: “Genocide is a crime defined in Article 2 of the Convention on the Prevention and Punishment the Crime of Genocide as of 9 December 1948 and it is recognized as such in final and binding decisions and rulings of the International Court of Justice, any other international court established by relevant international mechanisms whose competence has been recognized by Bosnia and Herzegovina, or the Court of Bosnia and Herzegovina (…) Considering that Bosnia and Herzegovina is the only country in the world for which the International Court of Justice has established that a crime of genocide happened on its territory, and that Bosnia and Herzegovina is a country in which, according to a number of final and binding rulings of the International Criminal Tribunal for the Former Yugoslavia, the crime of genocide and numerous crimes against humanity were committed, it is necessary that Bosnia and Herzegovina criminalises every denial, minimization, justification or approval of such crimes.”
The second Proposal, submitted to the Parliament of BiH on 22 March 2016 by a group of Parliament members from SDP as a “Proposal of prohibition of public denial, minimisation, justification or approval of holocaust, crime of genocide and crimes against humanity, states, among other things, the following: “(Denial of rulings) (1) Person who denies rulings of the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia is committing a crime that shall be punished by up to three years in prison or a fine in the amount from BAM 1,000 to BAM 10,000. (2) Person who commits the crime referred to in paragraph (1) of this Article in the capacity of a public servant, or through misuse of position or power, or if such acts caused disorder, violent or other serious consequences for co-existence of the citizens of BIH, shall be punished by six months to three years imprisonment and a fine in the amount from BAM 5,000 to BAM 10,000. (3) Repeat offenders of the crime referred to in paragraph (1) of this Article shall be punished by six months to four years imprisonment or a fine in the amount from BAM 5,000 to BAM 10,000”.
Another example is found in German criminal legislation in which two laws are relevant for genocide denial – amendments to Article 194 of the 1985 Criminal Code and amendments to Article 130 of the 1994 Criminal Code. According to the 1985 amendment, holocaust denial is prohibited as an insult to personal honour, i.e. as an insult to every Jew in Germany. Criminal prosecution for this act requires approval of the victim. According to the 1994 amendment, genocide denial becomes a crime under criminalisation of incitement to racial hatred. Denial, trivialisation, or support in public or at a gathering, and actions of the National Socialist regime are incriminated. The 1985 law stipulates that the punishment for the actions is up to one year in prison or a fine, while the 1994 law the punishments are up to five years in prison or a fine. Community service is provided for offenders under the age of 18. The procedure is launched by a public prosecutor. If the crime is committed by underage persons, the competence is transferred to the lower court (Amtsgerichte) composed of a judge and two officers. More difficult cases are dealt with by district courts (Landgerichte) composed of three judges and two officers.
It is necessary to point at the fact that in 2014 and 2015 representatives of genocide victims held a series of meetings with the members of PIC, EU, and OHR, requesting them to provide support to preventing genocide denial. Perhaps their proposal was the best – not to adopt a new law but to amend the Criminal Code of BiH with a new article. The PIC members supported the initiative in principle, but they also considered that the initiative should be implemented through the institutions of BiH, and not by imposition of the law or intervention of the High Representative. They strongly opposed the use of Bonn powers. However, such policy led to serious threats to peace and security, which is what we are experiencing every day, all due to years-long denial of the ICTY rulings in the region without any consequences whatsoever.
The question of genocide denial law is a question of recognising and accepting the heritage of the ICTY and the Mechanism as its successor; the question of recognising and accepting a whole set of acts of the UN and the EU that deal with the issue of genocide; the question of accepting all international acts and conventions through which the contemporary world tried to prevent crimes against people; but also the question and statement that genocide deniers do not accept mankind, civilisation, and universal values. The international policy, primarily the one of the EU, should first understand that genocide denial and affirmation of criminals is the denial of the sole essence of existence of the western civilisation and the EU itself and the international order established after the Second World War when the people said “never again”. It is the denial of rulings of the international courts and the denial of the rule of law as one of the basic and underlying values of the western civilisation.
Therefore, genocide denial law in BiH is not only necessary for BiH but for Europe as well, and BIH is a hostage of genocide deniers who take positions both in the BiH Presidency and the BiH Parliament. Once the international community realises that fight against genocide denial and hunting criminals are still priorities of any kind of serious politics in BiH, then the question of genocide denial law would be the same as the question of the law on defence, intelligence, establishment of the High Judicial and Prosecutorial Council – laws that were previously adopted by the Parliament of BiH, but with strong support and engagement of the international community, primarily the High Representative.
It is important to remind that the abovementioned laws, as well as a number of other laws in this country that were adopted in the past with strong support of the international community, are also denied in the present moment by the ones who have been continuously denying genocide. The entry of Russia’s favourite Milorad Dodik into state level power will result not only in failure to adopt the genocide denial law, but also in jeopardising the position of all other laws in BiH that the western democracy has been creating for decades.
In the end, I quote Gregory H. Stanton who identified eight phases of committing genocide and who claimed that “denial is the eighth phase that always follows genocide. This is one of the most certain indicators of future genocide massacres.”