Analysis of the Decision of the High Representative Enacting the Law on Amendments to the Criminal Code of BiH.
By the Decision on Enacting the Law on Amendments to the Criminal Code of Bosnia and Herzegovina
(published on 23 July 2021), the High Representative in Bosnia and Herzegovina imposed provisions banning denial, condonation, trivialisation of genocide, war crimes and crimes against humanity and glorification of persons sentenced by a final judgment for those crimes. These amendments provide BiH a regulation at the state level for the ubiquitous denial of crimes. The Decision did not impose a ‘law against genocide denial’ as the reports thereon stated; the amendments to the Criminal Code add paragraphs to the existing Article 145a (provoking ethnic, racial and religious hatred, conflicts and intolerance) with the purpose of regulating the hitherto unregulated criminal liability for justification, denial, trivialisation or condonation of crimes of genocide, crimes against humanity or war crimes.
The normalised denial, trivialisation, justification, and glorification of crimes and perpetrators confirmed by final judgments is the foundation of BiH political activity; it fills the public and media space, grossly insulting and denying the sufferings of victims. Denial of a crime means any attempt to claim that a crime did not occur, to deny factually established events, or to deny the intent of committing a crime. Calls for an end to such rhetoric have been there for as long as denial and glorification, coming from both the international community and the victims' associations and civil society; in the last two years, we see such calls in the initiated discourse on the need for a law (ZFD and TRIAL International). In addition, initiatives were launched to adopt a separate law through state institutions and/or amend the Criminal Code on four occasions, however, all were unsuccessful and lacked moral and political accountability. End to denial, trivialisation, justification and glorification of war crimes is a civilisational demand, a foundation for dealing with the past in which crimes were committed on behalf of ethnic groups, and a necessary step in building peace. However, where there is no will or accountability for indiscriminate acceptance of final court judgments for war crimes, there a legal ban on denial or justification is necessary.
Now that the legal provisions are there - what do they really mean? The amendments to the Criminal Code do not ban condonation, denial, gross trivialisation or attempts to justify crimes of genocide, crimes against humanity or war crimes as such – they ban such actions only if directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin, when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group. Therefore, not every condonation, denial, gross trivialisation or attempt to justify a crime is a criminal offence, but only the one that could incite to violence or hatred. It is important to understand this in terms of proving and prosecuting this criminal offence. Proving intent, subjective/objective incitement to violence or hatred is a legal challenge and can make the prosecution more difficult. However, this solution – where criminal liability for denying, condoning, trivialising and justifying war crimes is conditioned by incitement to violence or hatred follows the standards of the Council Framework Decision 2008/913/JHA on combating certain forms and expressions of racism and xenophobia by means of criminal law
. Also, this solution can be found in most European countries (such as Spain, Portugal, Malta, Croatia, Montenegro, Serbia). The prosecution level (implementation) varies – it is significantly lower in the countries of the region than in the EU countries. Already in this phase, we must underscore the responsibility of the judiciary in BiH to implement the amendments to the Criminal Code and to develop, regardless of potential challenges, case law to meet the purpose of these provisions and enable a more responsible attitude towards the past.
Further analysis of the new paragraph 3 of Criminal Code Article 145a shows a comprehensive approach to regulating what is banned. This paragraph defines that acts of condoning, denying, grossly trivialising or attempting to justify (therefore, not just denying) are banned; these acts relate to a crime of genocide, crimes against humanity or war crimes (not just genocide) that have been established by a final adjudication pursuant to the Charter of the International Military Tribunal or by the International Criminal Tribunal for the former Yugoslavia or the International Criminal Court or a court in Bosnia and Herzegovina. Provided, as mentioned earlier, that they have been committed in a manner that could incite to violence or hatred directed against a group of persons or a member of such a group. This formulation complies with the standards set by the Council Framework Decision 2008/913/JHA, but also overcomes the gaps that certain legislation has shown in regulating this matter. First of all, all forms of denial we can find in BiH are covered, such as trivialising the nature and/or the scope of the crime (“the number of victims is lower”, “victims are not civilians but soldiers”, “it was a crime but not genocide”), justifying and condoning the crime (“everyone committed crimes”, “we defended ourselves”, “things were done necessary for the survival of the nation”). Furthermore, denial or justification of all crimes is banned, not just genocide – as the Decision and the Amendments to the Criminal Code are tendentiously interpreted. The ban includes war crimes and crimes against humanity established by a final judgment of courts that have jurisdiction over war crime trials in BiH.
Particularly valuable is paragraph 6 of the amendments that bans glorification of persons sentenced by a final judgement for genocide, crimes against humanity or a war crime. These are now criminal offences in BiH: recognition, award, memorial, any kind of memento, or any privilege; naming a public object such as a street, square, park, bridge, an institution, building, municipality or a city or similar; registering a brand, after or under a name of a person sentenced by a final judgement for genocide, crimes against humanity or a war crime. This provision does not have an element of conditionality (incitement to violence or hatred), which means that the offence can be proven and prosecuted easier and faster. The importance of this provision lies in the fact that glorification of convicted war criminals is a serious social problem in BiH. Glorification of war criminals in BiH was analysed and systematised in the study Calling War Atrocities by Their Right Name and it includes: naming public spaces (streets, public institutions) after convicted war criminals; displaying photographs of convicted war criminals in public assemblies; awarding decorations to convicted war criminals; memorials and monuments glorifying war criminals; establishing and operating associations and organisations by war criminals or in support of war criminals, their gatherings and line-ups; direct or indirect public budget financial support to convicted war criminals and their families.
The amendments extend the previous paragraph 2 of Article 145a of the Criminal Code, now paragraph 7, in relation to the sanctions for perpetrators of the criminal offense referred to in paragraphs 3 and 4; it now precisely refers to an official or responsible person or person employed in an institution of authority or any body financed through public budget, that will be punished by imprisonment for a term not less than three years.
With regard to sanctions (punishment), the amendments from the Decision follow the standards of countries that have criminal provisions pertaining to denying, justifying, trivialising, or glorifying war crimes. Imprisonment for up to three or five years is the most common sentence in Europe. It is most severe in Austria – a prison sentence of one to ten years is envisaged, or up to twenty years in grave cases.
What does the Decision of the High Representative mean for the media in Bosnia and Herzegovina?
The role of the media in condoning, denying, trivialising, and justifying crimes and glorifying criminals is huge. The media not only convey statements, but also create content that contests the facts established by final court judgments. The formation of public opinion, the influence of the media on social dynamics, but also the responsibility for the consequences that the shared content produces must be considered from the perspective of amendments to the Criminal Code. But, first things first – are the media active actors in denying/glorifying war crimes and criminals established by court judgments?
Srebrenica Genocide Denial Report 2021
states that in the reporting period there have been 234 acts of genocide denial in the public and media space in BiH and the region. Most of them took place in Serbia (142), in BiH (60, of which 57 in RS) and Montenegro (19). The majority of persons who denied genocide come from politics, followed by people working in the media and media organisations, culture and arts, people and institutions in education and science, and those from various types of right-wing activism. The media appear not only as platforms that provide space to genocide deniers, but also as actors who deny genocide with their own “voice” through claims made directly by journalists (27 cases). The media that have actively denied or conveyed denials are most often newspaper portals, followed by web portals, news agencies and television broadcasters’ portals. Both the private and public media have been linked with instances of denial.
Denial of the genocide in Srebrenica is just an example of an aspect regulated by the new provisions of the Criminal Code. The genocide in Srebrenica was the most visible element in all reactions to the High Representative's Decision, for the simple reason that it constitutes the greatest dispute in the narratives about the past. However, the fact that these provisions refer to all war crimes and crimes against humanity must not be misinterpreted or neglected. The practice of denial or justification exists in relation to other crimes in BiH, but polarisation can be seen in the ethnic ‘sides’ of the reporting media.
Under the new provisions of the Criminal Code, the media are also held liable for condoning, denying, trivialising, justifying the crimes of genocide, war crimes and crimes against humanity if they incite to violence or hatred, or if they do so by public dissemination of tracts, pictures or other material. This means that sensationalist, inflammatory content directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin, contesting in any segment the crimes established by a final adjudication is subject to prohibition, i.e., criminal liability. We should mention here the comments in online media that may incite to violence, hate speech, threats or call to violent action. Content created with the intent to deny or justify or trivialise crimes defined by the Criminal Code and incite to violence or hatred is prohibited.
On the other hand, the dissemination of other people’s (political, media, etc.) statements or statements made in interviews that deny, justify, trivialise these crimes should be created exclusively as an event report, without any support for such statements, and should be labelled illegal and unacceptable (with clear distancing from the views being conveyed), using a tone that will not stir up tensions. It is important, of course, to keep in mind the contribution of the media to discussions on matters of public interest, and this topic falls under it. Thus, the absence of sensationalist reporting on denial should become the norm in media reporting. Although the call for responsible, accurate and independent media action is not new, these provisions now place it within the legal framework of criminal liability, which is not contrary to standards of other countries.
The media are also covered by provisions banning glorification of persons convicted of genocide, crime against humanity or war crime. This liability, as explained earlier, is not conditioned by incitement to violence or hatred – which means that any form of glorification in the media entails criminal liability and sanction. Therefore, the media in BiH are no longer allowed to call convicted war criminals heroes or to publish content that glorifies them.
A frequent argument one can hear in the discussions about laws prohibiting the denial of genocide and crimes against humanity is that these laws restrict freedom of expression, guaranteed by the Charter of Fundamental Rights of the European Union. As stated in the Charter, restriction on the freedom of expression of those who deny may be acceptable to protect the fundamental rights of others. Freedom of expression is protected as a human right also within the framework of national law in BiH, but this is not an absolute right. Restrictions are also provided for in the Press and Online Media Code of BiH, the Code on Audiovisual Media Services and Radio Media Services. Freedom of expression is not threatened by the amendments to the Criminal Code because the actions and their consequences prescribed by these provisions constitute an abuse of freedom of expression – false reporting and hate speech cannot be protected by freedom of expression.
(Non)acceptance of the Decision of the High Representative
The negative reactions and resistance that emerged after the publication of the Decision amending the Criminal Code of Bosnia and Herzegovina were expected and coincide with the rhetoric regarding both the OHR in BiH and the denial of war crimes and glorification of war criminals. The decision is legitimate and within the competence of the High Representative in BiH. The use of the Bonn Powers to make this Decision is well-founded; the Decision included all the detected forms of the problem to be regulated; it refers to all war crimes and war criminals; and it was made only after a more than sufficient number opportunities and incentives for the state and political elites to adopt a responsible attitude towards denying, condoning and glorifying convicted war crimes/criminals or adopt legal provisions that would regulate this matter. The ubiquitous ‘lack of political will’ has led to a situation where legal provisions are imposed instead of adopted.
Certainly, no ethnic group in BiH will be worse off because of these amendments to the BiH Criminal Code. For too long and too intensely, interpretations of the past instead of facts have filled political and public discourse, spreading ideologies, hatred, and divisions from the 1990s. Hiding individual political interests behind the nation, ethnicity and collective – as well as the lack of effective resistance to it – have led to clear legal (and completely ethnically neutral) provisions being perceived as an attack. It is superfluous to discuss here the challenging of legitimacy of courts and judgments for war crimes as it is based on the identical (politically oriented) sources, ignoring facts, evidence and even proceedings. The purpose of criminal trials is to establish the factual, forensic truth, and the state’s and society’s obligation is to implement and accept the truth presented in judgments. The decision of the High Representative to enact the Law on Amendments to the Criminal Code of Bosnia and Herzegovina actually establishes a mechanism for what did not exist in BiH – enabling criminal justice and facts to be integrated into social reality and allowing, instead of perpetual interpretations, dealing with the court established crimes to be able to build a secure and peaceful future. The goal of such legislation is to end the culture of impunity and prevent the inflammatory rhetoric and deepening of divisions in BiH. We should be aware that regulation will not solve all the challenges in dealing with the past, but regulation coupled with continuous efforts in other areas (education, culture, civil society, media) is an important element for building sustainable peace and democratic development in Bosnia and Herzegovina.
The Decision and amendments to the Criminal Code should therefore be understood as an important step for truth and reconciliation, but it should be noted that denying, justifying, glorifying any war crimes established by courts should have been prevented much earlier, civilisation-wise, morally and legally. The struggle does not end with this, it rather begins, but now with a different perspective – the existence of legal provisions requires their application. This is perhaps the last real opportunity for accountability and willingness to come from institutions and officials in BiH with the goal of stopping and preventing denial, justification, trivialisation and glorification of crimes of genocide, war crimes and crimes against humanity.
 Proposal of the Law Banning Denial, Trivialisation, Justification, or Condonation of the Holocaust, Crimes of Genocide and Crimes against Humanity (2011); Proposal of the Law Banning Public Denial, Trivialisation, Justification or Condonation of the Holocaust, Genocide Crimes and Crimes against Humanity (2016); Proposal of Law on Amendments to the Criminal Code of BiH (2009); Proposal of Law on Amendments to the Criminal Code of BiH (2017). None of these initiatives received the majority needed for adoption.
 For example, in Croatia, until 2017, the article of the criminal code governing this ban was never applied. In an investigative article by the Balkan Insight (2017), the Croatian Ministry of the Interior claimed that the police have never filed a criminal report related to genocide denial. To the question sent to 22 local attorney's offices, only three answered they had received criminal reports for genocide or Holocaust denial. The three have been submitted by different human rights groups and refer to Holocaust denial. On the other hand, 2015 data for Germany show that 93 people were convicted for denying, justifying or relativizing genocide committed by the Nazis, six of whom were sentenced to prison.
 For example, in Serbia, the 2016 amendments to the Criminal Code ban public approval, denial or significant impairment of genocide, crimes against humanity and war crimes committed against a group of persons or a member of the group designated on the grounds of their race, colour of skin, religion, origin, state, national or ethnic affiliation, in the manner that may lead to violence or inciting hatred towards such a group of persons, but this only applies to those criminal offences determined by a final judgement of a court in Serbia or of the International Criminal Court. This means that the decisions of the International Criminal Tribunal for the former Yugoslavia and the International Court of Justice are excluded from the ban.
 The two paragraphs stand out because they were the subject of this analysis, while the provision refers to paragraphs 2 to 4.
 Gačanica, L. and Finkedley, C. Calling War Atrocities by Their Right Name: Regulating a Ban on Denial, Trivialisation, Justification or Condonation of Genocide, the Holocaust, Crimes against Humanity or War Crimes, forumZFD – TRIAL International Sarajevo, 2019, available at: https://www.dwp-balkan.org/userfiles/file/2402/Nazivanje%20ratnih%20zlocina%20pravim%20imenom.pdf.
 We should perhaps recall here that Serbia, for example, extradited Ratko Mladić to the International Criminal Tribunal for the former Yugoslavia and then challenged the legitimacy of the court after the judgments in the proceedings (Trial Chamber Judgment and Appeal Judgment).
 Calling War Atrocities by Their Right Name – Policy Brief, forumZFD – TRIAL International Sarajevo, 2020, available at: https://www.dwp-balkan.org/userfiles/file/2402/new/Pravna_regulacija_Web.pdf