Criminalizing Genocide Denial: The Case of Srebrenica Commentary
Criminalizing Genocide Denial: The Case of Srebrenica

The UN General Assembly (UNGA) passed a resolution last week establishing a commemoration day for the 1995 killings of more than 8,000 Bosniak men and boys in Srebrenica and to formally recognize the event as genocide. Proposed by Germany and Rwanda, two countries with a unique history dealing with genocide in the 20th century, and supported by a number of other UN members, the resolution marks another step in the international efforts to address past atrocities and promote the acknowledgment of them as historical truths. Yet, as the adoption moves forward, the resolution’s legitimacy faces substantial challenges, including not surprisingly, firm opposition from Serbia.

The official narrative of Belgrade that Srebrenica did not constitute genocide remains widespread among its allies, and the President of the Serb Republic in Bosnia & Herzegovina, Milorad Dodik, has spearheaded a yearslong campaign to “de-mythicize” the event to the point of accusing international tribunals of staging politically-biased trials against Bosnian Serb leaders. And while the EU and the US have unequivocally dismissed any notion of questioning the truth or the extent of the atrocities in Srebrenica, denial appears to be gaining traction. Hours before the UNGA’s vote, church bells rang across Serbia in protest, with the Serbian Orthodox Church associating the process with unjust accusations. Indeed, the resolution passed with no consensus from the conflicting parties, and with such an aggressive diplomatic approach from Serbia, it would be no surprise if the resolution’s international implementation and recognition were hindered.

Although UNGA resolutions can raise global awareness about past atrocities, they are typically non-binding and lack the enforceability of, for example, Security Council resolutions. At first sight, their success hinges on the commitment of domestic governments and regional bodies to acknowledge the scale of the atrocities, and subsequently implement provisions that prevent genocide denial, including measures such as its criminalization. Without such commitment, a UNGA resolution alone may not fully achieve justice for the victims.

But before embarking on legal analysis, it is good to keep a few qualifying principles in mind. First, it can never be emphasized too often that debates about the origins of aggression and events from centuries prior to the wars in the former Yugoslavia are often irrelevant when assessing modern-day wrongdoings. That is, to put the focus on some sort of ancient hatred among the three ethnic groups in Bosnia and Herzegovina as the root cause that led to the war is not only unfair but factually misleading in understanding the region’s plague. The mainstream narrative of an inherently fractured historical relationship—unfortunately endorsed by many in the media, governance, and academia—not only distorts the past but also hinders the pursuit of constructive solutions in the present.

With that in mind, any reference to genocide or genocide denial in other parts of Bosnia & Herzegovina or in the Balkans overall, other than Srebrenica, will not be considered in this analysis, including allegations put forth by Serbia and Croatia before the ICJ. Fair or not fair, there has been no judicial finding of genocide in other instances, as the ICJ, the International Criminal Tribunal for the former Yugoslavia (ICTY) and several domestic courts repeatedly narrowed the scope of what is considered genocide in both time and territory. While in Bosnia the genocide might actually have lasted for three-and-a-half years and included atrocities committed over a wide geography, the courts localized its application and set up an exceptionally high benchmark for confirming it, as they ruled that only the events that took place in Srebrenica in June 1995 are to be considered genocide. As such, for the purpose of this commentary, Srebrenica is the only event that falls within the scope of my analysis.

Secondly, the denial regarding Srebrenica is mostly not a complete rejection of the event’s occurrence but rather a reinterpretation, often downgrading it from “genocide” to a mere “massacre” or “ethnic cleansing.” This distinction is crucial, as genocide is a crime punishable under international criminal law and carries significant legal weight under the Convention on the Prevention and Punishment of the Crime of Genocide. As defined by the convention, genocide involves specific acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group, and the convention obligates countries to prevent it.

In contrast, the term “massacre” does not have a universally agreed-upon legal definition. While it generally refers to the indiscriminate killing of a large number of people, it lacks the specific intent element required for genocide. Massacres may be prosecuted under various legal frameworks, but they do not carry the same legal weight or specific international legal consequences as genocide.

The term “ethnic cleansing,” on the other hand, brings further complications to the prosecution of some of the worst crimes committed worldwide. It is a term invented by journalists and analysts as a euphemism for genocide at the time, and in return to prevent a public backlash in support of Bosnians. The unfortunate irony is that ethnic cleansing, one of the very first concepts used by genocide deniers, has continuously evolved into usage within academia to describe these crimes.

And finally, legally determining what is and what is not genocide has been a matter for the courts and not historians since at least 1948, when the Convention on the Prevention and Punishment of the Crime of Genocide was adopted. In the case of Srebrenica, the ICTY and the ICJ made their determinations based on extensive evidence and examinations. As such, while it is often argued that continuous academic discussion might be needed when a wide consensus has not been reached on an event’s truth or scale, genocide, including Srebrenica, is not an abstract term subject to philosophical debate. It is an event now firmly established by international criminal law and courts. The next part, then, will not center on whether the events in Srebrenica constitute genocide, but rather on several policy proposals due to the inadequacy of a simple UNGA resolution to prevent the denial of that genocide from continuously occurring.

Domestic reform: does a ban conform to International Law?

First, genocide denial bans are not uncommon in Europe, with countries like Germany and France implementing laws criminalizing the denial of the Holocaust. In Germany, Section 130 of the German Criminal Code (Strafgesetzbuch) criminalizes incitement of hatred against national, racial, and religious groups, while in France, the 1990 Gayssot Act specifically prohibits Holocaust denial, making it a criminal offense to question the existence or scale of crimes as defined by the Nuremberg Trials.

The reasoning behind these laws is two-fold. First, they are based on the notion that hate speech played a significant role in Hitler’s rise to power. By inciting hatred and targeting minority groups, the Nazi regime gained support in elections and subsequently carried out its genocidal policies. Today, genocide denial poses similar dangers as it can contribute to the spread of extremist ideologies and enable extremist parties to win elections in fully established democracies.

Secondly, these laws aim to protect the memory of the victims and construct a system of awareness about the human suffering caused by genocides. Holocaust denial not only disrespects this memory but also undermines the historical truth of their experiences. It is a renewed attack on the victims, impeding reconciliation and healing, and keeping the nation mired in a dark chapter of its history. By criminalizing denial, these laws ensure that the atrocities of the Holocaust are remembered accurately, promoting a culture of remembrance and understanding.

In the case of Bosnia & Herzegovina, the head of the country’s Office of the High Representative (OHR), Valentin Inzko, criminalized the genocide denial of Srebrenica in 2021. Created by the Dayton Peace Accords, the OHR oversees the implementation of the peace agreement and possesses broad powers to amend constitutions, legislate, and dismiss public officials who undermine the agreement through the so-called “Bonn powers.” The newly enacted law authorizes a penalty of up to five years of imprisonment for individuals who deny the occurrence of genocide, war crimes, or crimes against humanity committed during the Bosnian War, or who glorify convicted war criminals by, for instance, naming streets or public institutions after them. Inzko cited years of waiting for Bosnia’s politicians to act, specifically pointing to the Bosnian Serb assembly’s refusal to withdraw decorations awarded to three convicted war criminals as a significant factor in his decision.

The reaction to the ban was sharply divided along ethnic lines. Bosniak politicians and relatives of victims welcomed the decision, seeing it as a crucial step toward acknowledging and honoring the memory of those lost. In contrast, Bosnian Serb leader Milorad Dodik condemned the law, alleging that it posed an infringement on Republika Srpska’s autonomy, and even threatened secession from Bosnia in response. This defiance was further demonstrated in January 2022, when a parade was held in Republika Srpska to commemorate the day when Bosnian Serbs declared independence in 1992 at the outset of the war, an outlawed holiday that mirrors a deep-seated division within the country.

Whether Bosnia’s outlawing of genocide denial will achieve its goals of curbing denialism and promoting unity remains to be seen. In the first year of its enactment, however, reports of public acts of genocide denial decreased drastically. In Republika Srpska, for example, Srebrenica Memorial Center reported that denial dropped by eighty percent. And despite no charges having been filed to date, and the argument that without prosecutions acts of denialism and glorification of war criminals will continue, the significant reduction in public denials indicates that the law has had a noticeable impact, demonstrating a measure of effectiveness.

But while Bosnia and Herzegovina has taken steps to criminalize genocide denial domestically, Serbia and other countries in the region have yet to follow suit. Criminalizing genocide denial in Serbia is crucial for several reasons. From a political standpoint, Serbia is the country where most support for Dodik’s denial comes from, making it logical to address the issue there first. Additionally, despite not being directly mentioned as the perpetrator in the UNGA resolution, ethnic Serb paramilitary groups were supported with Yugoslav armaments in 1992-1995 and had the political backing of Yugoslav authorities, which were essentially a façade for the Serbian political elite at the time.

Under Serbia’s Criminal Code, the incitement to national, racial, or religious hatred (Article 317) and the dissemination of ideas predicated on racial or ethnic superiority (Article 387) are prohibited. However, the legislation does not explicitly forbid the denial of genocide. While Serbia may ignore considering UNGA Resolutions as binding sources of international law and thereby refuse to recognize Srebrenica as genocide, as a signatory of the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Prevention and Punishment of the Crime of Genocide, Serbia is obligated to adhere to decisions from the ICJ and the ICTY and acknowledge the atrocities committed in Srebrenica.

Opponents of such amendments might argue that measures restricting freedom of speech should not be adopted by sovereign nations or imposed from abroad. Although freedom of speech is fundamental to a democratic society, it is not absolute and without limitations. Incitement to violence, discrimination, or hatred falls outside protected expression and into the realm of unlawful conduct. Genocide denial, which is inherently rooted in hatred rather than truth, mirrors such type of speech. Legal constraints on expression, therefore, are justified when speech incites hatred or has harmful effects on communities, safeguarding societal cohesion and harmony.

In general, the enactment of such laws is imperative to counteract discrimination and the incitement of violence based on historical events. The ICCPR explicitly prohibits advocacy of national, racial, or religious hatred that constitutes incitement to discrimination, hostility, or violence. In the context of Srebrenica, restrictions are essential as such expression, even if not overtly inciting, contributes to a broader pattern of hostility against a specific group, which in this case, are the survivors and families of the victims in Srebrenica.  

A final note: Integration into the European Union.

Convincing Serbia to amend its criminal code might appear highly unrealistic, considering the country’s steadfast refusal to recognize Srebrenica as genocide and behavior anticipating the UNGA vote. The nationalist sentiment within the current government, coupled with its unwillingness to face past war crimes, makes any immediate modifications to its criminal code regarding genocide denial improbable.

However, one of the most crucial mechanisms to secure compliance is the European Union’s accession process. The EU has historically leveraged its enlargement policy as a powerful tool to foster democratic reforms and conflict resolution in candidate countries. Indeed, the European Union is regarded as one of modern history’s most successful instances of conflict management. Through its enlargement policy, the EU has successfully integrated countries with contentious histories, fostering peace and stability.

The EU’s Framework Decision 2008/913/JHA, for example—which requires member states to criminalize the public condoning, denial, or gross trivialization of genocide, crimes against humanity, and war crimes—could serve as a model for candidate countries awaiting accession into the EU. To push such legislation, the EU has the capacity to establish conditionality frameworks similar to the Rule of Law Conditionality Regulation, tailored for non-EU states, to enhance commitment to democratic principles and the rule of law, potentially containing legislation against genocide denial. Such frameworks could link financial assistance and other incentives to achieving specified benchmarks, thereby promoting alignment with EU values and norms.

In the worst-case scenario, where it might be improbable that the EU modifies its integration prerequisites for Serbia and makes criminalization of genocide denial a formal demand, individual member states are free to mandate this as a condition for their ratification of Serbia’s membership. And unless Belgrade is willing to make a U-turn on its longstanding resistance to the recognition of Srebrenica as genocide, this demand could become a substantial impediment to its eventual membership while historical revisionism will continue to make Balkan societies chronically ill, preventing much-needed reconciliation. 

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