When we started working on an initiative for the adoption of a legal regulation to ban denial, minimizing, justifying or condoning genocide, holocaust, crimes against humanity or war crimes two years ago, we put the following questions in our work paper: the context (do we need it and why), possibilities (what are the obstacles, what are the advantages), legal text models (what needs to be regulated, at which level, to what extent and what kind of sanctions need to be in place). The purpose of adopting such a regulation would be to put an end to a culture of impunity: in order to punish those responsible for crimes and prevent this matter from being used for manipulation purposes. Crimes in case of which a court handed down a judgment of conviction must be acknowledged in the public, irrespective of the ethnic origin of the perpetrator. A regulation to ban denial, justifying or condoning war crimes and war criminals that have been found guilty will not resolve all problems resulting from the (failure) to face the past in Bosnia and Herzegovina, and we have been aware of this since the very beginning. Ensuring that a regulation is adopted in Bosnia and Herzegovina will not be an easy process, we are also aware of this. In terms of activism, human rights and professionalism, this should most certainly not mean that we should give up on asking for a regulation to ban denial, minimizing, justifying or condoning war crimes.
In case of discussions regarding the need to adopt a regulation to ban denial, minimizing, justifying or condoning genocide, holocaust, crimes against humanity or war crimes, we frequently hear the opinion according to which the need for such a legal solution is viewed not in terms of what we would like to achieve by ensuring its adoption, but rather whether it is (realistically) possible to have it in Bosnia and Herzegovina, having in mind the political situation and a low level of compliance with the law. In such a situation, the impossibility prevails over the need for a regulation. And this is exactly what favours obstructions of such initiatives. However, a ban on denial, minimizing, justifying or condoning genocide, holocaust, crimes against humanity or war crimes would help us to stop manipulations of narratives and victims in the public and political discourse. It is true that there is no political will (and it is also clear why), just as it is a fact that a law or laws will not resolve all problems regarding the current state of peace building in Bosnia and Herzegovina, so that such an unrealistic expectation should not be connected with these legal solutions. The legislation should be part of a solution, a tool that we did not have before, in order to face the past in a constructive manner, decrease the tensions among ethnic groups and support the process of healing of the society. Because war crimes and war criminals still live in this region, systems, in our ‘absence of an armed conflict’. They last longer than the lives of war survivors and affect the whole society. The denial of war crimes dehumanises whole groups of people, which resulted in mass crimes in the past.
The duration of a crime 1: a war crime is not subject to a statute of limitations. This means that genocide, a crime against humanity, a war crime (violation of international agreements, The Hague Conventions of 1899 and 1907 and the 1949 Geneva Convention for the Protection of War Victims as well as customary rules of the international humanitarian law) are not subject to a statute of limitations when it comes to prosecution and punishment. As opposed to criminal responsibility for the commission of war crimes, in case of rights of civilian victims of war, a statute of limitations was unfortunately imposed in Bosnia and Herzegovina. The exclusion of the statute of limitations in case of war crimes is based on reasons related to the character of crimes themselves (these are extremely serious criminal offences that cannot be forgotten and forgetting them is unjustified; the statute of limitations is related to the purpose of punishment, and the justification of the assumption about a resocialisation of a perpetrator (without the punishment) is questionable, on the contrary, many of them represent a potential danger in the future; reasons related to international solidarity). It seems that crimes do not even fade in our public discourse and societal awareness. They are emphasized, celebrated, glorified, denied, and war narratives are successfully transferred to new generations. Of course, this does not mean that we have not attained criminal justice for war crimes committed in 1990s (court proceedings against the perpetrators) as well as sentences and legal qualifications – we have attained it. However, what we failed to achieve is to ensure that the commission of such crimes is acknowledged. We are thus witnesses of a selective acceptance of judgments of conviction (when they are in favour of ‘our’ ethnic group), a direct denial of judgments of conviction (‘there was no crime’, ‘there was no genocide’), glorification of crimes in case of which perpetrators were sentenced (‘a hero, not a criminal’). In such an environment, criminal justice is not worth much, and social justice is influenced by the ethnic affiliation.
Duration of a crime 2: impermissibility of causing or inciting to national, racial and religious hatred, discord and intolerance. As long as war crimes and war criminals are promoted and supported in the public, we can hardly speak about peace building. If we prohibit this, will the versions of the past, according to which criminals are heroes and war crimes a lie, disappear? Probably not, and they will certainly not disappear overnight, but this will mean that politicians, for example, cannot deny war crimes in case of which a court handed down a judgment of conviction, glorify war crimes, base their politics on war ideologies. And here we come to the question – how? What kind of political will is needed to adopt such a regulation? Politicians that have been in power since 1995 and various coalitions they formed are unable and unwilling to act, they sabotage draft laws or regulations that might put a ban on denial, minimizing, justifying or condoning genocide, holocaust, crimes against humanity or war crimes. This happens at all levels – at the state level four times, at the entity level in Federation of Bosnia and Herzegovina two times, and in Republika Srpska and Brčko District of Bosnia and Herzegovina there have never been any attempts to adopt such legislation. The international community, however, has a very clear opinion on this – there must be a ban on denial or glorification of war crimes in Bosnia and Herzegovina. This has added another dimension to the discourse about the international community in Bosnia and Herzegovina, and there is a well-known phrase – ‘The OHR must be closed’, or ‘We ask the OHR to do something’. Just like spilt water, a dialogue on adopting a law to ban denial, minimizing, justifying or condoning genocide, holocaust, crimes against humanity or war crimes has spilled out into a myriad of discussions that are irrelevant for the purpose and need for such a regulation, turning it into discussions pertaining to ‘Serbs’, ‘Croats’ and ‘Bosniaks’, and reactivating mythological arguments. Crimes and criminals are once again at the centre of our lives, based on the same recipe they have been using over the past 25 years. Victims, crazed citizens, generations living based on separate versions of the truth about a war they never experienced, the civil society sector, activists, all our non-ethnic identities are on the margin, while our needs and our peace are subject to spins once again. The question of importance of having a regulation banning denial, minimizing, justifying or condoning war crimes does not and may not depend on our pessimism regarding political will and possibility to adopt a law in a regular parliamentary procedure or to impose it. The issue of importance must be a reflection of our need and insistence on such a regulation in order for war crimes and war criminals to be called by their name, and their permanence in our lives to be limited by a ban on denial or glorification.
Duration of a crime 3: Laws must be complied with. We all too frequently face the question why we need another law that will not be complied with or implemented. That is wrong. Laws are adopted to regulate (new) social phenomena and relations. The purpose is not to apply them, but rather the opposite – the adoption means that both the society and the institutions are obliged to implement them. A twisted logic, according to which laws are there to be violated or according to which we have poorly functioning institutions that do not implement laws and ensure a low level of protection in terms of rights, does not free us from the need to adopt laws that will improve our lives (Can we imagine a world without the right to property? To marriage? To privacy? To freedom of speech? And can we imagine a situation in which we would accept the current legislation in the mentioned fields and never ask for it to be amended?). The point of adopting a law is not to put a ban on denial, glorifying, justifying genocide, war crimes and war criminals ‘on paper’, and that in practice everything remains the same. The purpose of having such a legislation is to ensure that nobody can say that a crime, in case of which a court handed down a judgment of conviction, never happened. That there was no genocide in Srebrenica. That sentenced war criminals are heroes and that streets, institutions, awards are named after them. Once established facts of responsibility are no longer subject to negotiations or interpretation. In such a case, we could no longer claim that only one ethnic group was victimised. Because victims and criminals came from all ethnic groups. Making it impossible to call war criminals heroes in the public space, as well as making it possible to talk about victims in the public space, would constitute a change in the paradigm about the role of crimes committed in our post-conflict society and our daily lives. This is necessary, especially due to the fact that the only structure we have is the one that speaks with dissonant voices about a past that is subject to negotiation. In spite of facts, judgments and damage it causes to all three post-conflict parties in Bosnia and Herzegovina.
Duration of a crime 4: There is no compromise when it comes to the past. I believe that it is fully clear that spontaneous understanding of the necessity for a critical culture of remembrance and institutional peace building will not happen here. There is no compromise about the past, since opposing war narratives have been successfully introduced in all areas of our lives (education, religion, the media, public spaces), and the political elites live almost exclusively off them. Such a deep frozen conflict and peace keeps us in the same (ethnic) positions and achieving agreement about the war would also mean assuming (individual) responsibility and steering clear of war rhetoric. This will not happen on its own, of course. This requires systematic efforts, not just in Bosnia and Herzegovina, but also everywhere else. It is necessary to create a context and attract empathy in order to understand what happened (to all of us!) in 1990s and how we live with it. The failure to do so over the past 25 years did deepen the hatred, divisions and versions of the truth about the war. And the war still plays an important role in our lives. If we experience these events exclusively from the perspective of the collective ethnic war narrative, we fail to see everything that has been carefully left out from this aspect – other people that were killed, the humanity of other people, crimes committed by persons belonging to our ethnic group. And this gives us the right to deny and contest other peoples’ suffering and justify crimes committed by the members of our ethnic group. Lack of knowledge, a narrow and simplified view of memories can defend us from a difficult past, but they can also keep us surrounded by silence, our own trauma and other persons’ fear. A step toward a serious and responsible attitude toward the past would imply the compliance with judgments handed down in case of war crimes and war criminals. This will also not happen spontaneously – just take a look at the past 25 years – this is the reason why there has to be a legislation. In addition to all other peace building efforts.
How long does a war crime last in Bosnia and Herzegovina? By reaffirming it in the public space, the duration and consequences of the crime are prolonged. This is a practice that must stop and we must be aware that it will not happen on its own. Denial of victims and the suffering of survivors, ethnic divisions and the continuous maintenance of a latent conflict are both goals and consequences of exclusively nationalist interpretations of the past. This has never been prevented, and empathy and societal awareness are obviously absent both in case of the society and individuals. We lack responsibility for our attitude toward the past and a vision of a peaceful future. The present is the time to change this paradigm. In spite of resistance.
The author is a doctoral student in the field of law. She currently works as a legal advisor and independent researcher. She is interested in topics such as facing the past, culture of remembrance, human rights, constitutional law. She has published articles, analytical, scientific and research works in these fields.