Why Bosnia’s ban on genocide denial was a necessity
On July 23, the Office of the High Representative (OHR), the top international body overseeing the implementation of the peace agreement that ended Bosnia’s war, criminalised the denial and glorification of genocide in the country. The outgoing OHR head, Valentin Inzko, announced that he has introduced jail terms for anyone who “publicly condones, denies, grossly trivialises or tries to justify” the genocide or other war crimes committed in Bosnia and Herzegovina. “Genocide in Srebrenica, war crimes and crimes against humanity … must not be forgotten or denied,” his decree read.
But why did Inzko feel the need to make such a move, some quarter of a century after the end of the war?
Genocide denial in Bosnia started in 1992, almost simultaneously with the genocide itself. In May 1992, the first major massacre of the war was committed when Serbian forces shelled the main street in Sarajevo, hitting a breadline of civilians and killing 26 people. That same day, Serbian media reported that the Bosnian government had bombed its own citizens in order to blame the Serbs. In the following three and a half years, Serbian authorities and media used similar tactics to deny, trivialise or justify many other genocidal massacres in Bosnia and Herzegovina.
From the very beginning, those invested in denying a genocide ever took place in Bosnia used the term “ethnic cleansing” to describe the worst atrocities committed in the region. By doing so, they hoped to forestall the use of the term “genocide” in the Bosnian context and prevent a public outcry in support of Bosnians. They were successful to a certain degree. The term “ethnic cleansing”, introduced merely as a euphemism for genocide, evolved into an established academic term over the years and was repeatedly used to obscure the reality of what really happened in the region during that dark period.
The International Court of Justice (ICJ), the International Criminal Tribunal for the former Yugoslavia (ICTY) and later domestic courts also contributed to this ever-growing wave of genocide denial by repeatedly issuing rulings that narrow the scope of the genocide both in terms of time and territory. While the genocide actually lasted for three and a half years and included atrocities committed over a wide geography, the courts ruled that only the events that took place in Srebrenica between July 11-12,1995 can officially be considered a “genocide” – a restriction not applied to any other case of genocide before or since.
State officials, politicians, journalists and civilians, both in Republika Srpska – the Serb-dominated entity within Bosnia and Herzegovina – and Serbia, however, continued to reject even this very limited interpretation of genocide, routinely claiming that a genocide never took place at all in Bosnia.
In 2018, the Republika Srpska parliament rejected a 2004 report, issued by a special investigative commission established by a previous Republika Srpska government, which acknowledged that Bosnian Serb forces had committed the crime of genocide in 1995.
Then in 2019, Bosnia’s Serb-dominated entity set up two new supposedly independent commissions – the Independent International Commission for Investigating the Sufferings of all Peoples in the Srebrenica Region in the Period from 1992 to 1995 and the Independent International Commission for Investigating the Sufferings of Serbs in Sarajevo in the period from 1991 to 1995 – to “determine the truth” about wartime crimes in Srebrenica and Sarajevo.
In July 2021, the first of the two commissions published its “concluding report” on Sufferings of all Peoples in the Srebrenica Region in the Period from 1992 to 1995. The report accused the ICYT of staging politically biased trials of Bosnian Serb political and military leaders, and of wrongly classifying the Srebrenica massacres as genocide. It suggested, without any shame or hint of irony, that the mass killings of Bosniak civilians in the city should be considered not a “genocide” but a “horrific consequence” of their refusal to surrender to Bosnian Serb forces. In the words of Menachem Z Rosensaft, general counsel of the World Jewish Congress, the report disparaged “as illegitimate and politically biased not just the ICTY but just about all war crimes trials beginning with the International Military Tribunal at Nuremberg”.
Denying the Bosnian genocide and glorifying the war crimes committed in the country, sadly, is not an infliction limited to Republika Srpska, Serbia or even the Balkans. Many respected individuals and institutions around the world are also putting their support behind genocide deniers or even engaging in genocide denial themselves. For example, Austrian author Peter Handke – a well-known genocide denier and apologist for Serbian war criminals, who once described Srebrenica as a “revenge massacre” for earlier Muslim killings of Serbs and gave a eulogy at Slobodan Milosevic’s funeral – was awarded the Nobel Prize for Literature in 2019.
Serb nationalists and their supporters across the world have been working for decades to convince the world that a genocide never took place in Bosnia and their efforts to whitewash their history are more forceful and effective today than ever before. Thus, it was crucial for Inzko to take action now and put a stop to the efforts to erase this crime against humanity from our collective memory.
After Inzko announced his decision to criminalise genocide denial in Bosnia and Herzegovina, Milorad Dodik, Serb member of Bosnia’s tripartite presidency, held a press conference and announced that this law would never be accepted in Republika Srpska. This is “the final nail in the coffin of the country of Bosnia and Herzegovina,” he declared, “the Republika Srpska has no choice but to launch the process of dissolution”.
A week later, on July 30, the parliament of Republika Srpska passed a law on “non-implementation” of the high representative’s decision and another providing for penalties of up to 15 years in prison for “violating the reputation of the Republika Srpska”. “The institutions of the Serb Republic will not cooperate with … bodies of Bosnia and Herzegovina in the implementation of the decision of the High Representative,” the parliament said in a statement.
Republika Srpska parliament’s aggressive, united and unapologetic rejection of the legal changes introduced by Inzko demonstrated clearly why criminalisation of genocide denial was an urgent necessity in Bosnia and Herzegovina. Indeed, genocide denial is a deeply institutionalised problem in the country. Not only a large segment of the Bosnian Serb population, but all of Republika Srpska’s political institutions are supportive of and invested in historical revisionism.
Indeed, there have been a number of attempts to criminalise genocide denial at the state level in Bosnia in the past, but every single attempt was blocked by the representatives of Republika Srpska.
For the first time in May 2007, a member of the Parliamentary Assembly of Bosnia and Herzegovina submitted to the House of Representatives a legislative proposal on the prohibition of denial, minimising, justifying or approving Holocaust, genocide or crimes against humanity. The proposal never passed due to “insufficient entity majority”, ie, opposition from representatives of Republika Srpska.
In September 2011, the same legislative proposal was resubmitted to the House of Representatives. Republika Srpska’s representatives once again voted against the adoption of the resolution, claiming that the aim of the law was “to disable demystification of war crimes in Bosnia and Herzegovina and to prevent the wrong impression in the world on war horrors to be changed”.
In response, the Bosniak representatives emphasised that the law should determine whether the country “supports or condemns Holocaust, genocide and crimes against humanity”, and that the legislation should be adopted “for the sake of respect to all victims of war” and “for the sake of the future of the country”. They also pointed out that the law may not change the past, but it can help “prevent the past from repeating itself”.
Their pleas, however, fell on deaf ears. The legislative proposal was resubmitted to the House of Representatives several times between December 2011 and May 2012, but has not been adopted due to persistent resistance from Bosnian Serb representatives.
These past efforts showed that despite the growing problem of genocide denialism in the country, Bosniak representatives could not do anything to stop it at the state level.
Genocide denial is not only a renewed attack on the victims of this crime against humanity, but also an undeniable obstacle to the country’s progress. It blocks any attempts at reconciliation or healing and keeps the country stuck in a dark chapter. Moreover, and perhaps most importantly, it raises the risk of similar atrocities being committed again in the future.
Thus, as it was practically impossible for the country’s institutions to address the problem, it was the OHR’s responsibility, as part of its duty to oversee the effective implementation of the Dayton Accords, to take the necessary steps to criminalise genocide denial.
Those who oppose the OHR’s move to criminalise genocide denial claim that the international body should not have “imposed” on the country legislation that limits free speech and hinders Republika Srpska’s legally protected autonomy.
While there is an ongoing discussion in Europe over whether criminalisation of genocide denial hinders free speech, such laws are already widespread on the continent. Over the years, the European Court for Human Rights repeatedly ruled that there are limitations to freedom of expression and that countries can criminalise and punish genocide denial and other forms of hate speech without violating the European Convention on Human Rights.
Genocide denial is already illegal and punishable by substantial jail terms in many European countries. Germany and Austria, for example, criminalised Holocaust denial years ago, and many other countries have since joined them and criminalised the denial of not only the Holocaust but other genocides and crimes against humanity. With the aim of harmonising national legislations, efforts have been made to criminalise genocide denial as a form of racist and xenophobic behaviour at the EU level. Framework Decision 2008/913/JHA was adopted in 2008 and it obliges all member states to criminalise “public condoning, denial or gross trivialisation of genocide, crimes against humanity and war crimes”.
Given that Republika Srpska is insistent on blocking any legal attempts to end historical revisionism and genocide denial in Bosnia, the OHR was right to make the necessary changes to the country’s criminal court itself. Even the US, a country that takes any limitations to free speech very seriously, supported the move, demonstrating that the OHR’s decision was not an attack on free speech but an attempt to end the ongoing attacks on Bosniaks and their identity.
Freedom of speech is undoubtedly a cornerstone of a democratic society. But it is not absolute and never should be. If we allow people to deny genocide, demonise victims and celebrate perpetrators with impunity, we pave the way for more violence, more oppression and senseless bloodletting. This is why democratic societies have to take action against historical revisionism in general and genocide denial in particular – even if this means limiting freedom of speech.
The OHR’s decision to criminalise genocide denial, therefore, was a step in the right direction. But only time will tell whether it will be effective in helping the peoples of Bosnia and Herzegovina to collectively accept and condemn past atrocities and start looking at the future.