Regarding the publication Naming War Crimes by their Real Name
Legal regulation of the prohibition of denial, minimizing, justification or approval of genocide, Holocaust, crimes against humanity or war crimes
Almost twenty-five years after the signing of the Dayton Peace Agreement, Bosnia and Herzegovina is still perceived as a country in transition. In addition, it should also be emphasized that the end of the 1980s and the beginning of the 1990s was marked by the creation of a new paradigm – the paradigm of ethno-national policies, which was accompanied by the reestablishment of the patriarchal mindset and regression of Bosnia and Herzegovinian society. The Dayton Peace Agreement ended the armed conflict, but the work of post-conflict peace-building is still unfinished today and continues to take place in the specific circumstances of a socio-political system that ensures the dominance of confessional, ethno-national communities.
The changes that were heralded in ’89 as the global spread of democracy led Bosnia and Herzegovina into a conflict of war, where political rhetoric appealed to the needs of democratization of society through profiling ethno-national identity policies. The Dayton Peace Agreement put an end to the state of war, but socio-political conflicts persisted and ethno-political communities were established in the constitutional-legal order. As Ivo Tomic points out, Bosnia and Herzegovina “instead of a true democracy, has reached a state of real-political nation-building in which national-political elites and leaders, such as the classic oligocracy, decide on the fate of not only ‘their’ peoples, but also of the fate of Bosnia and Herzegovina as a whole, and for the most part, nations listen to and ride on the already well-established national-ideological paths ”(Tomić, 1999: 53).
In doing so, as other authors have observed, ethno-nationalist ideology sees a continuous stronghold in the history of separate communities, where history is interpreted as it suits them, there is selective approach, and adaptation to political ambitions. In post-conflict peacebuilding processes, the necessary reference point becomes closer history, that is, the 1992-1995 war, where selective and revisionist approaches become especially visible. “New” rhetoric also involves denying, minimizing, justifying or approving of certain war crimes, in a way that suits individual political elites who speak about the community and on behalf of the community. When it conquers public space (which it has already done), it also becomes an agent of socialization, an accepted and socially desirable attitude within the community, a narrative that acts as a cohesive force, and the conflict still exists as part of social reality.
In the circumstances described above, resistance to the legal regulation of the prohibition of denial, minimization, justification or condemnation of genocide, Holocaust, crimes against humanity or war crimes should also be understood. To speak of the suffering of only one people, while negating or minimizing the suffering of another; presenting convicted war criminals as saviors of a nation – are just some of the matrices of existing narratives that deepen social conflicts between communities, while neglecting and manipulating individual experiences. With the aforementioned legal regulation, political elites would lose a powerful mechanism, which, if needed, could be used in a variety of situations, including when it is necessary to impose a “new” topic in the discussion of economic issues. However, a mechanism suitable for various political manipulations will still need to be regulated at some point, given efforts to harmonize at European Union level criminal bans on the most serious forms of hate speech (which include the denial of genocide and other crimes), which we can follow since 1996.
As Ehlimana Memisevic (2015: 143-144) recalls and in her work, by claiming that “efforts have been made to criminalize genocide at European Union level” in order to harmonize national legislation: criminalizes racist and xenophobic behavior in all Member States’; “Then, in 2001, a Framework Decision on Combating Racism and Xenophobia was drafted, which provided for the criminalization of ‘public support for genocide or crimes against humanity as defined in the Statute of the International Criminal Court’ as a form of racist and xenophobic behavior.” Council Framework Decision 2008/913 / JHA of 28 November 2008 on combating certain forms and ways of expressing racism and xenophobia through criminal law was adopted only after seven years of negotiations – 28 November 2008 (Memišević, 2015: 145; Gačanica and Finleldey, 2019 : 15).
Thus, having in mind these tendencies of European Union law, criminalization of the prophecy of genocide and other crimes will necessarily happen, but for the sake of healing the Bosnia and Herzegovinian society that has been characterized by the experience of various types of conflict for some 30 years, it is necessary to do so as soon as possible. Due to the process that awaits us, the publication of Leila Gacanica and Caroline Finkeldey’s publication titled Naming War Crimes by True Name: Legal Regulation of the Prohibition of Denial (Denial), Minimizing, Justifying or Approving Genocide, Holocaust, Crimes against Humanity or War Crimes, is extremely valuable publication of The Civil Peace Service Forum (forumZFD) and TRIAL International. As the authors explain in the introduction, this paper “questions the cause-and-effect relationship between the importance of legal regulation and its actual realization in Bosnia and Herzegovina, that is, how the sources of denial, justification, minimization are restored, what they serve for, and how it affects the social situation of permanent conflict by maintaining the state” frozen conflict ” (Gacanica and Finleldey, 2019: 7). In the first part of the paper, the authors offer a sociological analysis, and findings from a qualitative study show that transitional justice in Bosnia and Herzegovina did not come to life “neither in conceptual nor real meaning” and identified “the challenge of judgments” as the major source of the problem (Gačanica and Finleldey, 2019: 11). It is of huge importance to emphasize, though, that the authors note the breadth and continuity of the problem, that is, they observe that denials or minimizations are “noticeable and visible in different places of political activity and, as a consequence, imprinted in many places of daily life in divided communities” (Gačanica and Finleldey, 2019: 12).
While at the first part of the study we are given a sociological focus, the second part focuses on legal analysis, and after introducing a theoretical framework, different legal practices of European Union Member States were presented regarding regulating denial and minimizing genocide and other crimes. Comparative analysis of legal practices shows that there is still no harmonization in relation to the content of what is prohibited, but also in terms of sanctioning. However, it is also recognized that in most European Union Member States the prohibition of denying genocide is included in criminal laws.
Finally, in the third main part of the paper, the author discusses possible solutions for Bosnia and Herzegovina. Thus, this section presents initiatives and efforts made so far, in order to prohibit the denial, minimization, justification or approval of the Holocaust, genocide and crimes against humanity. By doing thorough interviews with experts, the author identifies the reasons that these initiatives failed. Such reasons are lack of political will, unwillingness to cope with the past, lack of adequate and enforceable transitional justice mechanisms in Bosnia and Herzegovina, insufficient time flow since the end of the armed conflict, etc. Although these are real political reasons, or rather (political) excuses for non-adoption of legal regulations, neither is a real social obstacle, nor does the existing socio-political concept suggest that they can be overcome internally. Twenty-five years ago, it might have been naive to believe that a “change of generations” was about to change, but precisely the ethno-national political system of Bosnia and Herzegovina as defined by the 1995 Constitution of the Dayton Peace Agreement, opened the space to create educational spaces in fragmented spaces policies according to the needs of particular ethnonational policies. This, though, may be one of the main reasons why there is no indication that socio-political circumstances will change. In addition, there is only a belief that the identified reasons will continue to exist in the coming period, and entry into a phase where the state will work more intensively to build peace will remain pending. Therefore, the legal regulation of the prohibition of denying, minimizing, justifying or approving genocide, the Holocaust, crimes against humanity or war crimes, if we are not mature enough as a political community to recognize it as “necessary” from the bottom, must be interpreted as a civilization standard “from above” and an act of confirmation the assumed formal consensus on the reforms needed for a successful European integration process.
We should have in mind that the findings of this study by Lejla Gačanica and Caroline Finkeldey show us clearly that there is agreement among key informants about the need to regulate this area, as well as “the precise and comprehensive setting of not only the actions but also the criteria that determine what genocide is. Holocaust, war crimes against humanity ”(2019: 21). However, opinions are divided on the form of regulation (regulation in a separate law or within criminal law), and on the expediency of regulation at the entity level only (Gacanica and Finleldey, 2019: 21-22). Nevertheless, it is interesting to note that administrative legal professionals who by their profession are prone to legal dogmatism, have opened up in research and critically considered the social realities of law, debating whether legal provisions would in this area were ultimately effective and effective. This concern is justified given past experience in other fields (eg gender equality). The findings of this study also show that legal experts believe that “it would be an extremely bad situation to pass laws that do not apply”, as this would lose confidence in the state system, primarily the rule of law “(Gacanica and Finleldey, 2019: 22). This confidence, according to the findings of other research, has already been lost. Nevertheless, there is of course plenty of room to assume in a broader context that such insights are justified from the perspective of one part of the experts, but this further leads us to the problem of the next insight.
The survey, specifically, has emerged from a key informant position, which sees its stronghold in “socially addressing the problem of denial, reduction or approval of war crimes”, and shifts responsibility to the sphere of civil society, which would work alongside education, culture and media and could be a big part of the solution to the problem (Gacanica and Finleldey, 2019: 22). However, the work of a large number of non-governmental organizations, especially in the field of women’s / feminist activism, has been defined by peace policies since the beginning of the conflict. As other studies (eg Zlatiborka Popov Momcinovic Survey, 2013) show, women’s peace policy is absent from politics (as are women absent from politics and as they did not participate in the negotiations over the Dayton Peace Agreement), and women are those who carry much of the burden of the work that is being done in the sphere of civil society. Based on the research done so far, it can be justified to believe that activists and feminists will continue their work, which, by adopting adequate legislation, can be expected to be accompanied by their further efforts to make it both effective and efficient. In the end, it is exactly from the civil sector that a different way of memorializing the suffering is offered, which is different primarily in that it transcends the boundaries of one collectivity. Namely, an adequate example of a different approach is found, among other things, in the unsuccessful attempt to institutionalize and, nevertheless, informally marking the Remembrance Day for the suffering of women in the war in Bosnia and Herzegovina. If there is some agreement of collectivity in the processes of “production” of memories of war suffering, then it is precisely the denial of specific women’s experiences.
These organizations are already working on changing the sociocultural context through various programs of non-formal education, while in formal education, as shown by, among other things, the content analysis of the national group of subjects entitled “Education in Bosnia and Herzegovina: What do we teach children?” strongly focused on highlighting one nation (community), one part of the country, one religion, one cultural tradition, and one that belongs to the majority group in the territory in which the textbooks are used ”(2007: 178-179). Given the past role of education and the media as an agent of socialization, where and if we find examples of good practice, they are almost always the result of the individual efforts of those who are usually and (peace) activists who now work in the sphere they transfer civil society into the realms of their professions. Moreover, it should be noted that a large number of scientific papers have already been written about the role of the media in shaping selective and revised social memories of collectivities (including negating and minimizing the experiences of others), of which we should mention Belma Buljubašić’s work entitled Dominant Narratives on the war in Bosnia and Herzegovina: is consensus possible on the past?
Given the past experience and the continuity of building a selective, revised and diverse interest of political elites with a tailor made memorialization, it is necessary to adopt adequate legal regulation to prohibit the denial, minimization, justification or approval of genocide, the Holocaust, crimes against humanity or war crimes. Certainly legal experts are justifiably concerned about its implementation, but this is already part of a broader question of how to restore citizens’ trust in judicial institutions and the rule of law in general. That we can truly speak of a responsible and sensitized judiciary and the existing framework – Article 163 of the Federation of Bosnia and Herzegovina Criminal Code and the legislation pertaining to the prohibition of hate speech – would be sufficient basis for adequate response and regulation.
Nevertheless, this does not change the need for further legal standardization identified in this study, signed by Lejla Gačanica and Carolin Finkeldey. Their research will certainly be useful in the further process of legal regulation, and the very act of its publication influences the further development of the dialogue on the needs and ways of legal regulation of these problems. Finally, it must be said that adopting adequate regulation, even if it is effective and effective, is only the minimum to be expected, not the realization of the utopian aspirations of peace theorists and activists.
Amila Ždralović is an Associate Professor at the Faculty of Law, University of Sarajevo. She received her professorship of philosophy and sociology at the Faculty of Humanities and Social Sciences, University of Sarajevo, while at the Faculty of Political Science in Sarajevo she obtained her master’s degree, or PhD in social sciences. Except for being involved in the teaching process at the Faculty of Law from the academic year 2006/07, also, in 2006, she was a guest lecturer at other institutions. Among other things, academic 2011/12. She was engaged as a Fellow in the subject Gender and Nationalism at the Postgraduate Gender Studies Program at the Center for Interdisciplinary Studies at the University of Sarajevo. From 2000 to 2006, she worked as a journalist, professor in high school and as a trainer on NGO programs. She is the co-author of the book Citizens in Collectivist Ideology: A Sociological-Legal Analysis of the Position of the Others in Bosnia and Herzegovina. Together with Sasha Gavric, she has produced a collection of Gender Equality. Theory, Law, Policies, the first textbook for introduction to gender studies for female students of social sciences in BiH. She presented the results of her scientific research to the scientific and professional public in more than forty papers published in journals / proceedings, but also in papers presented at scientific and professional conferences and seminars.
1. Buljubašić, Belma. Dominant narratives about the war in Bosnia and Herzegovina: is consensus possible on the past ?. In: Lejla Turcilo and Belma Buljubasic, Media Reality: Essays on Contemporary Media Use in Bosnia and Herzegovina. FPN, Sarajevo, 2020.
2. Gacanica, Lejla and Finkeldey, Caroline. Naming war crimes by real name: Legal regulation of the prohibition of denial, denial, justification or approval of genocide, Holocaust, crimes against humanity or war crimes. ForumZFD and TRIAL International, Sarajevo, 2019.
3. Memisevic, Ehlimana. Prohibition of Genocide Denial – Limiting Freedom of expression Allowed? In: Yearbook of the Faculty of Law in Sarajevo, LVIII, 2015.
4. Education in Bosnia and Herzegovina: What do we teach children? – Content Analysis of National Group of Subjects “, Open Society Fund Bosnia and Herzegovina, Sarajevo, 2007.
5. Popov Momcinovic Zlatiborka. The Women’s Movement in Bosnia and Herzegovina: The Articulation of a Counterculture. Sarajevo Open Center, Center for Empirical Research on Religion in Bosnia and Herzegovina and CURE Foundation, Sarajevo, 2013.
6. Tomić, Ivo. Unbreakable Bosnian Nodus. Magistrate, Sarajevo, 1999.