David Pettigrew: Ending Impunity in Republika Srpska


“Ending Impunity in Republika Srpska”


KRUG 99, Sarajevo, 22.3.2020.

Prof. Dr. David Pettigrew
Professor of Philosophy and Holocaust and Genocide Studies
Southern Connecticut State University
Member, Steering Committee, Yale University Genocide Studies Program

I

Republika Srpska declared itself as an entity in 1992, pursued a plan to create an ethnically homogeneous territory through atrocities that have been judged to be genocide and other war crimes, was recognized and legitimized by the Dayton Peace Agreement, and now its officials deny the genocide, all with impunity. Recently, when the Constitutional Court ruled that Republika Srpska’s effort to appropriate State land was unconsititional, Bosnian Serb member of the Presidency, Milorad Dodik, opposed the ruling, and sought the expulsion of the international judges from the court by boycotting normal government operations. In this way, he was attempting to hold State institutions hostage for 60 days. Mr. Dodik also renewed his threats to secede.[1] Through this initiative, Mr. Dodik has effectively declared himself and Republika Srprska to be above the law. The High Representative has declared that Mr. Dodik has crossed the “red line” in a way that may require the use of the BONN Powers.[2] Indeed, Republika Srpska’s impunity should no longer be supported, and even “enabled” by the international community.[3]


II


            From 1992 to 1995, the leadership of Republika Srpska was able to pursue its plan to create an “ethnically homogeneous state,”[4] in part, because the international community and the media either dismissed the atrocities altogether, or referred to the crimes as “ethnic cleansing,” or as “civil war,”  rather than as war crimes, or as genocide. Professor Edina Bećirević has emphasized that by referring to the Bosnian Serb atrocities in Bosnia as “ethnic cleansing,” the international community was able to avoid the “mandate imposed on them by the UN Convention on Genocide.”[5] For most of the three years of the Serb aggression, the New York Times, for example, used the phrase “ethnic cleansing” rather than “genocide”. But the expression, “ethnic cleansing,” was also wielded consistently by the United Nations Security Council. Resolution 819, which established the Srebrenica “safe area,” condemned atrocities that were being committed by the Bosnian Serb forces as “ethnic cleansing,” and used the expression five times.[6] It should not escape our attention that Bosnia and Herzegovina had submitted an “Application instituting proceedings against Yugoslavia (Serbia and Montenegro) for violating the Genocide Convention,” to the International Court of Justice on March 20, 1993. The Application stated that, “The abominable crimes taking place in the Republic Bosnia-Herzegovina at this time can be called by only one name: genocide.[7] Hence, with Bosnia and Herzegovina’s Application in March 1993, the term “genocide” had indeed been officially inserted into the domain of public discourse, along with the identification of the Serbian nationalist goal of a “Greater Serbia,” as well as an account of the “systematic shelling and starvation of large cities,” crimes of which “civilians were the primary targets…”[8] Hence, there was no reason thereafter to avoid using the term. But with the failure of the international community and of the media to refer to the war crimes being committed as genocide, the atrocities at Omarska, Trnpolje, and Visegrad, for example, and the siege of cities and towns, including Sarajevo and Srebrenica from 1992-1995, involving the terrorizing, starving, and murdering of civilians,  proceeded with impunity.

III


            Further, the International Criminal Tribunal for the former Yugoslavia (ICTY)  has thus far failed to rule that the atrocities committed in the municipalities were genocide. In the Karadžić case, the Chamber found that there was an “organized and systematic pattern of crimes committed” against non-Serbs in the municipalities–the so-called Bosnian Serb claimed territory–that there was unlawful detention in approximately 50 detention facilities in which living conditions were deplorably inhumane, including “torture, beatings, and psychological and physical abuse,” and that there was the murder of non-Serbs in villages and in the concentration camps on a “mass scale”.[9]  However, in spite of these findings the Chamber was “not convinced that the evidence demonstrated that this amounted to conditions of life calculated to bring about the physical destruction of the Bosnian Muslims or Bosnian Croats in these municipalities,” and was not satisfied “that the acts… were carried out with genocidal intent.”[10] Moreover, the agreement between the prosecution and the Tribunal in 2009 to remove eight municipalities from the Karadžić indictment meant that there would be no genocide conviction for the crimes committed in Višegrad, for example, since it was one of the excluded municipalities.[11] But an ICTY Trial Chamber asserted that the atrocities committed in Višegrad stood out as the most heinous crimes of the 20th century in terms of the “viciousness”… and “sheer callousness, monstrosity and brutality of herding, trapping and locking the victims in the two houses,” and setting them on fire and burning them alive.[12] One must wonder if the crimes committed in Višegrad had not been excluded from the indictment, whether the gravity of the atrocities against the innocent women and children would have led to a judgment of Genocide for Count 1. The failure to achieve a conviction for Genocide for Count 1, in the Karadžić case and in the Mladić case, means that Republika Srpska, and its Army and Police Forces that carried out its eliminationist objective, committed these crimes with an impunity that encourages historical revisionism and denial.

IV


            Today, following the commission of the atrocities, which have been judged to be war crimes, the political leadership of Republika Srpska engages in hate speech and genocide denial with impunity. When President Dodik claimed in 2017 that Muslims were re-occupying the Podrinje, this was dehumanizing Islamophobic hate speech.[13] In an interview in November 24, 2019, he fabricated a plan of the international community and of the “Muslims” in Bosnia and Herzegovina to suppress the Serbs and make the country for Muslims, and stated, moreover, that Serbs and Croats were being subjected to the will of “Muslim Sarajevo.”[14]
            With recent developments there has indeed been a rise in anti-Muslim rhetoric. But such Islamophobic rhetoric entails an assault on the very sovereignty of Bosnia and Herzegovina. In other words, under the guise of Muslim hatred, Mr. Dodik carries out an even more troubling plan to undermine Bosnia’s sovereignty.[15] Bosnia’s national sovereignty is under attack from Republika Srpska and, in a certain sense, from Herzeg-Bosna, attacks which can be seen as extensions of Serbia’s and Croatia’s ethnonationalist and territorial war aims in the 1990s.[16] Mr. Čović, for his part, joined Mr. Dodik in his attack on the Constitutional Court.[17] Bosnia’s sovereignty faces renewed risk due to Mr. Dodik’s “exceptional” behavior. Mr. Dodik’s attempt to undermine Bosnia’s sovereignty by declaring himself above or outside the law, as he has in his reaction to the ruling of the Constitutional Court, is analogous to declaring what Carl Schmitt treated as the “state of exception”.[18] In his work, Schmitt was providing the essential conceptual justification or rationale of Article 48 in the Weimar Constitution according to which the President could suspend civil liberties and legal safeguards.[19] This was the step taken by Hitler in 1933, to begin to solidify his dictatorial powers, with the declaration of the “Order of the Reich President for the Protection of People and State,”[20] followed by the “Law to Remedy the Distress of People and Reich“.[21] Giorgio Agamben explains that the Nazis, building on Schmitt’s theory, spoke of a “gewollte Ausnahmenzustand,  a ‘willed state of exception”‘.[22] Thus, Hitler declared himself progressively outside and above the law, and instituted a series of inhumane and discriminatory laws, which lead to violent persecution and the Holocaust.  By declaring himself above the law, Mr. Dodik seeks to facilitate the impunity with which Republika Srpska seeks to secede as part of his so-called “RSexit”.[23] In a provocative move, and to symbolize his boycott of the state, he met with state-level officials in East Sarajevo. This behavior was condemned by the High Representative.[24] Mr. Dodik’s threats of secession pose a direct challenge to the sovereignty of Bosnia and Herzegovina.

V


            Mr. Dodik and other officials in Republika Srpska have also engaged consistently in genocide denial. In 2015, for example, President Dodik stated that the genocide at Srebrenica was the “biggest sham of the 20th century.”[25] More recently, Mr. Dodik oversaw the formation official Commissions to revisit and re-investigate the Srebrenica genocide and the Siege of Sarajevo.[26] As we approach the 25th commemoration of the Srebrenica Genocide, it is important to stress, further, that the current Mayor of Srebrenica, who is a Bosnian Serb, denies the genocide. In a BBC news report, Srebrenica Mayor Mladen Grujičić asserts that “the truth about Srebrenica has not been proven.” He rejects the judgments of the international courts regarding the Srebrenica genocide. He asserts that Radovan Karadžić is a hero and speaks favorably of Republika Srpska’s secession from Bosnia and Herzegovina. Regarding secession, in the interview, he says he is “All for it”.[27] An even more pernicious form of denial that continues unchallenged is the glorification of convicted war criminals in Republika Srpska along with the suppression of memorials for the victims. The glorification of war criminals suggests that the atrocities were not crimes but were rather a heroic or noble undertaking, thereby threatening further cruelties. In addition to such plaques and statues, there has been a proliferation of chants, songs, T-shirts, and posters that amount to celebrating the atrocities. This phenomenon has been deemed “Triumphalism” by Hariz Halilovich, as part of which perpetrators celebrate their crimes.[28] This toxic combination of hate speech, denial, and  triumphalism should be unacceptable to the international community, but it continues today in Republika Srpska with impunity. Such rhetoric and actions only serves to incite ultranationalist gatherings such as occurred in Srebrenica and Višegrad on Orthodox Christmas Eve.[29]

VI

            Hence, it is incumbent upon the international community to respond to Republika Srpska’s rejection of international laws, norms, and human rights, and to its continuing assault on the truth. The problem with genocide denial, in this context, that is to say, in a post-genocide society, is that it suggests that the crime could be repeated. Hence, there is nonetheless a crucial need, as we approach the 25th commemoration of the Srebrenica Genocide, to restore respect for the rule of law, with laws against genocide denial, against the glorification of war criminals, and against hate speech in Bosnia so as to bring impunity in Republika Srpska to an end. Such laws would also prevent further trauma to the survivors. 

            A conceptual framework for such legislation can be found in the Council (of the European Union) Framework Decision of 28 November 2008, on “combating … expressions of racism and xenophobia by means of criminal law.” The EU Framework Decision indicates that “Member States shall … insure” that “publicly condoning, denying, or grossly trivializing crimes of genocide is punishable.”[30] Switzerland (1995)[31] and Belgium (2019)[32] have passed such laws against genocide denial. One would assume that laws against genocide denial build on the tradition of laws against Holocaust denial such as have existed in Austria and Germany.[33] These laws, and the punishments they entail,  provide a conceptual model for the long overdue legislation in Bosnia and Herzegovina. What these laws share, is the idea that the denial of a genocide is intrinsically an act of hatred and discrimination, since it minimizes or justifies the barbaric crimes suffered by the targeted group, minimizing not only the crimes but also the suffering, and in this way, the denial entails a threat that the crime could be repeated. The denial identifies the group of victims as unworthy of empathy or protection against harm, and renders the group vulnerable to a repetition of the harm. Such laws in Bosnia and Herzegovina would need to criminalize the denial of not only the Srebrenica genocide, but of all war crimes that were committed, along with hate speech, as well as the glorification of war criminals and celebration of the atrocities.
            While the EU directive and related laws in Europe provide a compelling conceptual model for Bosnia, the fact is that such a model has already existed in Bosnia for some years, namely, in the Criminal Code of the Federation of Bosnia and Herzegovina. The Criminal Code of the Federation of Bosnia and Herzegovina includes a law against genocide denial under Article 163, which is analogous to the EU Framework and the law in Belgium insofar as it bears on  “Inciting National, Racial or Religious Hatred, Discord or Hostility.” The law stipulates that  “(1) Whosoever publicly incites and inflames national, racial or religious hatred, discord or hostility among constituent peoples and others who live in the Federation of Bosnia and Herzegovina shall be punished by imprisonment for a term of between one and five years three months and three years.” In section five, the law reads: “(5)Whoever commits the criminal offence referred to in paragraph 1 of this Article by public denial or justification of genocide, crimes against humanity or war crimes established by a legally binding decision of International Court of Justice, International Criminal Tribunal for the former Yugoslavia or a national court shall be punished by imprisonment for a term of between three months and three years.”[34]

            However, an even more complete model exists in the amendment to Article 145a of the Criminal Code of Bosnia and Herzegovina that was proposed recently by Zlatko Miletić of the Democratic Front in the House of Peoples. Article 145a, “Inciting national, racial and religious hatred, discord or hostility,” reads: ” (1) Whoever publicly incites or inflames national, racial or religious hatred, discord or hostility among the constituent peoples and others who live in Bosnia and Herzegovina shall be punished by imprisonment for a term between three months and three years.”[35] Article 2 In Article 145a. paragraph 2 is amended to read: “(2) Whoever commits the criminal offense referred to in paragraph (1) of this Article by public denial or justification of genocide, a crime against humanity or a war crime established by a legally binding decision of the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia or a domestic court, shall be punished by imprisonment. from six months to five years.” But this recent proposed amendment went even further by criminalizing the glorification of war criminals. After paragraph (2), a new paragraph is added. (3) and (4) which read as follows: “(3) Whoever commits the criminal offense referred to in paragraph (1) of this Article by making a decision on the award of a recognition, award, privilege to a convicted war criminal or a decision to assign a name to a public object – street, square, park, bridge, institution, institution, settlement, or settlement by the name and surname of a convicted war criminal convicted by a final decision of the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia or a domestic court, shall be punished by imprisonment for a term between six months and five years.”[36]

            The proposed amendment was defeated in the House of Peoples but given the escalation of impunity in Republika Srpska, it would be profoundly important for the High Representative to implement such laws this year, by virtue of the BONN Powers, if necessary.[37] Given the EU Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, given existing laws against genocide denial in Europe, given Article 163 in the criminal code in the Federation of Bosnia and Herzegovina, and given the proposed amendment to the Criminal Code of Bosnian and Herzegovina, the High Representative has the form and the detailed content required for the implementation of a law against genocide denial and against the glorification of war criminals that is needed and long overdue in Bosnia. Both the law in the Federation and the amendment proposed for the State are fundamentally consistent with the terminology of laws against Holocaust denial in Austria and Germany where the laws were precisely meant to prevent the resurgence of  anti-Semitism and fascism,  as well as to prevent a repetition of the Holocaust.
            The implementation of a law against genocide denial and against the glorification of war criminals would be an indispensable step in the process of restoring the rule of law in Bosnia and of responding to impunity in Republika Srpska. Mr. Dodik’s attempt to declare a state of exception, through his rejection of the ruling of the Constitutional Court and his threat to secede, that is, to place himself above the law,  which entails no less than a “suspension of the juridical order itself,”[38] must be condemned in the strongest possible terms. Let us not forget that the ICTY Trial Chamber in the Karadžić judgment determined that there was a common plan “to permanently remove the Bosnian Muslims and Bosnian Croats from Bosnian Serb-claimed territory.”[39]
            An additional crucial response to Mr. Dodik divisive rhetoric, and to Mr. Grujičić’s denial and glorification of Karadžić, regards election law insofar as it pertains to Srebrenica. 8,372 victims of the Srebrenica genocide who were unjustly murdered, and thousands of residents who were forcibly displaced, were deprived of the human right to vote and to participate in the local elections. One such person who was deprived of the right to life and civic participation was Fatima Muhić, the youngest victim of the Srebrenica genocide, who was buried in 2013, after her human remains were located and identified in a mass grave on the grounds of the Potočari battery factory. Fatima would have been 25 years old this year. One of the tragic and unacceptable consequences of the Srebrenica genocide has been that, in the absence of the original pre-genocide population from 1991, a Bosnian Serb who denies the genocide has been elected Mayor. His election was, in a sense, a completion of the genocide and a betrayal of the memory of the victims. Therefore, justice demands an amendment to the election law that would allow former Srebrenica residents and their descendants to vote in the local election in 2020 regardless of where they now live. [40] In this way, we can honor the memory of Fatima, and of all of the victims, and work to bring Republika Srpska’s impunity to an end. This would also contribute to remembrance, restorative justice, and healing.

VII


            Finally, insofar as the recognition and legitimation of Republika Srpska at Dayton was a “reward” for a successful genocide, the only appropriate response would be the reunification of Bosnia through constitutional reform, reform that would neutralize the discriminatory and exclusionary policies of Republika Sprska and establish nationality on the basis of citizenship rather than ethnicity. Republika Srpska’s efforts to destabilize the state and the region must be resisted.  We must hold onto the hope that telling the truth about the genocide, and acting on the basis of that truth, will lead to justice and to a future for a democratic, unified, multicultural Bosnia and Herzegovina. Emir Suljagić stated that due to Handke’s Nobel Prize, the “battle for the truth about what happened in the country during the 1992-1995 war is starting again.”[41] Let us dedicate ourselves to speaking the truth about the genocide in Bosnia and Herzegovina and to ending impunity in Republika Srpska with the implementation of a law against genocide denial, a law against the glorification of war criminals, and the restoration of voting rights for 1991 residents of Srebrenica and their descendants.

Preliminary Notes for Version for KRUG 99, Sarajevo


[1] Danijel Kovacevic, “Dodik Unveils Fresh Threat of Bosnian Serb Secession,”

BalkanInsight, Feb. 13, 2020, https://balkaninsight.com/2020/02/13/dodik-unveils-fresh-threat-of-bosnian-serb-secession/. Also see http://ba.n1info.com/English/NEWS/a410064/Dodik-We-re-in-power-now-and-we-ll-throw-out-the-judges.html. Also see https://www.telegraf.rs/english/3154000-dodik-serb-republic-is-on-its-way-out-of-bosnia-there-is-no-return. A summary of the Court’s ruling–“In the Case No. U 8/19, the Constitutional Court decided on the request of the Seven Delegates of the Council of Peoples of Republika Srpska for the review of constitutionality of Article 53 of the Law on Agricultural Land of Republika Srpska which stipulates that the agricultural land in question, which is a public good, i.e. the state property, shall become, by force of law, property and possession of the Republika Srpska. The Constitutional Court found that the challenged provision is incompatible with Article I(1), Article III(3)(b) and Article IV(4)(e) of the Constitution of Bosnia and Herzegovina, since Bosnia and Herzegovina has the exclusive responsibility to regulate the issue of state property.” –can be found at this link:

http://www.ccbh.ba/novosti/sjednice/?id=51010ed0-653f-4138-9e61-7238d09005aa

[2] “Secession from Bosnia is the red line for use of Bonn powers, Inzko told N1,” N1, Feb. 17, 2020,  http://ba.n1info.com/English/NEWS/a410748/Secession-from-Bosnia-is-the-red-line-for-use-of-Bonn-powers-Inzko-told-N1.html. Also see, “Dodik’s repeated calls for Republika Srpska secession raise alarm,” AlJazeera, Feb 18, 2020, https://www.aljazeera.com/news/2020/02/dodik-repeated-calls-republika-srpska-secession-raise-alarm-200218134127617.html. See Mladen Dragojlovic, “Dodik: ‘Goodbye BiH, welcome RSexit’,” Independent Balkan News Agency, Feb. 17, 2020, https://balkaneu.com/dodik-goodbye-bih-welcome-rsexit/.

[3] Jasmin Mujanovic, “Bosnia’s Milorad Dodik and His Enablers,” BalkanInsight, March 2, 2020, https://balkaninsight.com/2020/03/02/bosnias-milorad-dodik-and-his-enablers/

[4] International Criminal Tribunal for the former Yugoslavia, Judgement, Karadžić (IT-95-5/18-T), Trial Chamber, §3447, March 24, 2016.

[5] Edina Bećirević, Genocide on the Drina River (New Haven: Yale University Press, 2014), ix.

[6] United Nations Security Council, “Resolution 819,” April 16, 1993, http://unscr.com/en/resolutions/819.

[7] International Court of Justice, “Applicaion of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Yugoslavia (Serbia and Montenegro)],March 23, 1993.

[8] Ibid.

[9] International Criminal Tribunal for the former Yugoslavia, Judgement Summary Karadžić (IT-95-5/18-T), March 24, 2016, https://www.icty.org/x/cases/karadzic/tjug/en/160324_judgement_summary.pdf

[10] Ibid.

[11] International Criminal Tribunal for the former Yugoslavia, Third Amended Indictment: Prosecution’s Marked-Up Indictment, Karadžić (IT-95-5/18-PT), Trial Chamber III, §38, October 19, 2009, https://www.icty.org/x/cases/karadzic/ind/en/markedup_indictment_091019.pdf

[12] “The Pionirska street fire and the Bikavac fire exemplify the worst acts of inhumanity that a person may inflict upon others. In the all too long, sad and wretched history of man’s inhumanity to man, the Pionirska street and Bikavac fires must rank high. At the close of the twentieth century, a century marked by war and bloodshed on a colossal scale, these horrific events stand out for the viciousness of the incendiary attack, for the obvious premeditation and calculation that defined it, for the sheer callousness and brutality of herding, trapping and locking the victims in the two houses, thereby rendering them helpless in the ensuing inferno, and for the degree of pain and suffering inflicted on the victims as they were burnt alive. There is a unique cruelty in expunging all traces of the individual victims which must heighten the gravity ascribed to these crimes.” International Criminal Tribunal for the former Yugoslavia, Judgement Summary, Milan Lukić & Sredoje Lukić ( IT-98-32/1-T), July 20, 2009,

[13] Igor Spaic, “Bosnian Serb President in ‘Hate Speech’ Probe,” BalkanInsight, July 18, 2017,

[14] “Unfinished Business?,” Russia Today, November 24, 2019, https://www.rt.com/shows/worlds-apart-oksana-boyko/474187-unfinished-business-milorad-dodik/.

[15] In his November 2019 report to the UN Security Council, the High Representative expressed deep concern about “frequent destabilizing rhetoric …including statements continually made by Mr. Dodik predicting the dissolution of Bosnia and Herzegovina and advocating for the secession of the Republika Srpska,and unification with Serbia.” 56th report of the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina, OHR, 11/05/19,  http://www.ohr.int/?p=102518. Mr. Dodik has maligned the country, moreover, by stating that Bosnia was a “disfigured state that should never have survived” beyond 1996. “Bosnian Serb leader: Bosnia is a disfigured state and should never have survived.” N1, 13 Sept. 2019, http://ba.n1info.com/English/NEWS/a378066/Bosnian-Serb-leader-Bosnia-is-a-disfigured-state-and-should-never-have-survived.html

[16] 55th Report of the High Representative for Implementation of the Peace Agreement on BiH to the Secretary-General of the United Nations, OHR Office of the High Representative (May 8, 2019) http://www.ohr.int/?p=100919. It was Mr. Inzko’s “21st regular report to the UN Secretary-General since assuming the post of High Representative for BiH in 2009.” “D. Challenges to the General Framework Agreement for Peace, Challenges to the Sovereignty and Territorial Integrity of Bosnia and Herzegovina. As previously noted, during the reporting period, statements continued challenging the sovereignty and territorial integrity of BiH, with BiH Presidency member Milorad Dodik again the most frequent exponent of such proclamations. In March, an association called the “Croatian Community of Herzeg-Bosna,” in reference to the wartime breakaway proto-state, held a Congress in Mostar, in which the wartime Herzeg-Bosna was praised.”  The High Representative also noted that “certain officials coming from the Republika Srpska continued with frequent statements denying the statehood of BiH, while advocating for the secession of the RS and a union with Serbia, saying for instance that the RS is ‘already separated’.”

[17] “Covic: Removing foreigners from Constitutional Court good for EU integration,”

N1, Feb. 18, 2020, http://ba.n1info.com/English/NEWS/a410882/Covic-Removing-foreigners-from-Constitutional-Court-good-for-EU-integration.html

[18] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge: The MIT Press, 1983), p. 1. “The Sovereign is he who decides the state of exception.”

[19] See The Constitution of the German Reich/ August 11, 1919/Translation of Document 2050-PS/Office of US Chief of Counsel. Donovan Nuremberg Trials Collection, Cornell University Law Library, http://hydrastg.library.cornell.edu/fedora/objects/nur:01840/datastreams/pdf/content. For a digital facsimile of the the German document, see: https://www.lwl.org/westfaelische-geschichte/que/normal/que843.pdf

[20] “Order of the Reich President for the Protection of People and State” [Verordnung des Reichspräsidenten zum Schutz von Volk und Staat]. United States Holocaust Memorial Museum. “Reichstag Fire Decree.” Holocaust Encyclopedia. https://encyclopedia.ushmm.org/content/en/article/reichstag-fire-decree.

[21] “Law to Remedy the Distress of People and Reich” [Gesetz zur Behebung der Not von Volk und Reich] United States Holocaust Memorial Museum. “The Enabling Act.” Holocaust Encyclopedia. https://encyclopedia.ushmm.org/content/en/article/the-enabling-act.

[22] Giorgio Agamben, State of Exception, Translated by Kevin Attell (Chicago: University of Chicago Press, 2005), 3.

[23] “Dodik: Serb Republic is on its way out of Bosnia, there is no return,” Telegraf.rs, Feb. 13 2020, https://www.telegraf.rs/english/3154000-dodik-serb-republic-is-on-its-way-out-of-bosnia-there-is-no-return

[24] “HR Valentin Inzko comments on State-level Officials Gathering in Republika Srpska Entity,” SarajevoTimes, Feb. 25, 2020, https://www.sarajevotimes.com/hr-comments-on-state-level-officials-gathering-in-republika-srpska/.

[25] Julian Borger, “Srebrenica 20 Years On,” The Guardian, July 3, 2015, http://www.theguardian.com/world/2015/jul/03/srebrenica-massacre-20-years-on.

Also see, “Dodik: Srebrenica ‘najveća prevara 20. vijeka’,” Radio Slobodna Europa, June 25, 2015, http://www.slobodnaevropa.org/archive/news/20150625/500/500.html?id=27093445&nocache=.

See as well, “Bosnian Serb Leader Says Srebrenica Genocide a Lie,” Yahoo News, July 4, 2015, http://news.yahoo.com/bosnian-serb-leader-says-srebrenica-genocide-lie-191425555.html.

[26] Albina Sorguc, “Bosnian Serbs’ War Commissions: Fact-Seeking or Truth-Distorting,”

BalkanInsight, Feb 25, 2019, https://balkaninsight.com/2019/02/25/bosnian-serbs-war-commissions-fact-seeking-or-truth-distorting/

[27] Srebrenica Massacre: A Survivor’s Fight for Justice,” BBC Newsnight, May 5, 2017, https://www.srebrenica.org.uk/survivor-stories/nedzad-avdic-a-survivors-fight-for-justice-bbc-newsnight/

[28] “In this stage, perpetrators, their sponsors, and the politics behind genocide do not deny the killings any longer, but rather they glorify them, celebrate their deeds, humiliate the survivors, build monuments to the perpetrators at the sites of the massacres, and create a culture of triumphalism such as has been seen in the parts of Bosnia where Serb militias committed genocide against Bosniaks.” See Hariz Halilovich, Globalization and Genocide, in Global Public Administration, Public Policy, and Governance (A. Faraymand ed., 2017). See Ten Stages of Genocide by Gregory Stanton, Genocide Watch: The International Alliance to End Genocide, http://www.genocidewatch.org/genocide/tenstagesofgenocide.html. See, e.g., What Are the Ten Stages of Genocide, AlJazeera Balkans, July 11, 2019, https://www.aljazeera.com/news/europe/2019/07/10-stages-genocide-190710112516344.html, which includes “Triumphalism,” the 11th stage of genocide proposed by Hariz Halilovich. Also see, Hadžimušić, Aida. “Folklorno Veličanje: Internet Preplavljen Pjesmana o Genocidu, Genocid u Srebrenici: Zločin Koji Traje.” AlJazeera Balkans, 11 July 2019, https://www.youtube.com/watch?v=v9ntS8Hn1Co.

[29] Albina Sorguc, “Serbs’ Noisy Christmas Convoy Through Srebrenica Causes Fear,” Balkan Insight, Jan. 7, 2020, https://balkaninsight.com/2020/01/07/serbs-noisy-christmas-convoy-through-srebrenica-causes-fear/. Also see, “SDA: Četničko divljanje u Potočarima i Višegradu je izliv mržnje ohrabren nizom izjava zvaničnika RS,”Dnevni Avaz, Jan. 7, 2020,  https://avaz.ba/vijesti/bih/540180/sda-cetnicko-divljanje-u-potocarima-i-visegradu-je-izliv-mrznje-ohrabren-nizom-izjava-zvanicnika-rs.

[30] “Article 1, Offenses Concerning Racism and Xenophobia, (c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, 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.” Official Journal of the European Union, “Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law,” https://op.europa.eu/en/publication-detail/-/publication/f015ed06-b071-41e1-84f1-622ad4ec1d70/language-en.

[31] “Art 261bis1 Rassendiskriminierung: Wer öffentlich gegen eine Person oder eine Gruppe von Personen wegen ihrer Rasse, Ethnie oder Religion zu Hass oder Diskriminierung aufruft,
wer öffentlich Ideologien verbreitet, die auf die systematische Herabsetzung oder Verleumdung der Angehörigen einer Rasse, Ethnie oder Religion gerichtet sind, wer mit dem gleichen Ziel Propagandaaktionen organisiert, fördert oder daran teilnimmt, wer öffentlich durch Wort, Schrift, Bild, Gebärden, Tätlichkeiten oder in anderer Weise eine Person oder eine Gruppe von Personen wegen ihrer Rasse, Ethnie oder Religion in einer gegen die Menschenwürde verstossenden Weise herabsetzt oder diskriminiert oder aus einem dieser Gründe Völkermord oder andere Verbrechen gegen die Menschlichkeit leugnet, gröblich verharmlost oder zu rechtfertigen sucht, wer eine von ihm angebotene Leistung, die für die Allgemeinheit bestimmt ist, einer Person oder einer Gruppe von Personen wegen ihrer Rasse, Ethnie oder Religion verweigert,wird mit Freiheitsstrafe bis zu drei Jahren oder Geldstrafe bestraft. Schweizerisches Strafgesetzbuch, “Art 261bis, Rassendiskriminierung,” Jan 1, 1995, https://www.admin.ch/opc/de/classified-compilation/19370083/index.html.

[32] “CHAPITRE 12. — Modification de la loi du 30 juillet 1981 tendant à réprimer certains actes inspirés par le racisme ou la xénophobie Art. 115. L’article 20 de la loi du 30 juillet 1981 tendant à réprimer certains actes inspirés par le racisme ou la xénophobie, inséré par la loi du 10 mai 2007, est complété par le 5° rédigé comme suit : ‘5° Quiconque, dans l’une des circonstances indiquées à l’article 444 du Code pénal, nie, minimise grossièrement, cherche à justifier ou approuve des faits correspondant à un crime de génocide, à un crime contre l’humanité ou à un crime de guerre tel que visé à l’article 136quater du Code pénal, établis comme tels par une décision définitive rendue par une juridiction internationale, sachant ou devant savoir que ce comportement risque d’exposer soit une personne, soit un groupe, une communauté ou leurs membres, à la discrimination, à la haine ou à la violence, en raison de l’un des critères protégés ou de la religion, au sens de l’article 1er, § 3, de la décision-cadre du Conseil de l’Union européenne du 28 novembre 2008 sur la lutte contre certaines formes et manifestations de racisme et de xénophobie au moyen du droit pénal, et ce, même en dehors des domaines visés à l’article 5.’” Moniteur Belge,  “Sommaire, Lois, décrets, ordonnances et règlements,”

No. 115, 24 Mai 2019, http://www.ejustice.just.fgov.be/mopdf/2019/05/24_1.pdf#Page903. Also see Chambre des Représentants de Belgique, “Proposition du loi, portant des dispositions diverses en matière pénale et en matière de cultes,”

DOC 54 3535/010, 4 Avril, 2019, https://www.dekamer.be/FLWB/PDF/54/3515/54K3515010.pdf.

[33] The 1947 law on de-Nazification in Austria was amended in 1992 to criminalize Holocaust denial: “§ 3 h. Nach § 3 g wird auch bestraft, wer in einem Druckwerk, im Rundfunk oder in einem anderen Medium oder wer sonst öffentlich auf eine Weise, daß es vielen Menschen zugänglich wird, den nationalsozialistischen Völkermord oder andere nationalsozialistische Verbrechen gegen die Menschlichkeit leugnet, gröblich verharmlost, gutheißt oder zu rechtfertigen sucht.” https://www.ris.bka.gv.at/Dokumente/BgblPdf/1992_148_0/1992_148_0.pdf.
“(3) Mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe wird bestraft, wer eine unter der Herrschaft des Nationalsozialismus begangene Handlung der in § 6 Abs. 1 des Völkerstrafgesetzbuches bezeichneten Art in einer Weise, die geeignet ist, den öffentlichen Frieden zu stören, öffentlich oder in einer Versammlung billigt, leugnet oder verharmlost. (4) Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer öffentlich oder in einer Versammlung den öffentlichen Frieden in einer die Würde der Opfer verletzenden Weise dadurch stört, dass er die nationalsozialistische Gewalt- und Willkürherrschaft billigt, verherrlicht oder rechtfertigt.” Bundesmimisterium der Justiz und für Verbraucherschutz, Strafgesetzbuch (StGB) “§ 130 Volksverhetzung,” http://www.gesetze-im-internet.de/stgb/__130.html; https://www.bmjv.de/DE/Startseite/Startseite_node.html.

[34] The Criminal Code of the Federation of Bosnia and Herzegovina, Article 163 “Inciting National, Racial or Religious Hatred, Discord or Hostility,”  https://www.legislationline.org/download/id/8500/file/CC_FBiH_am2017_eng.pdf,

” (1) Whosoever publicly incites and inflames national, racial or religious hatred, discord or hostility among constituent peoples and others who live in the Federation of Bosnia and Herzegovina shall be punished by imprisonment for a term of between one and five years three months and three years. (2) Whosoever commits an offence under paragraph 1 above by employing duress and torture, jeopardizing the safety of any person, exposing national, ethnic or religious symbols to derision, damaging other people’s belongings, desecrating monuments or graves, shall be punished by imprisonment for a term of between one to eight years. (3) The aforesaid liability under paragraph 2 above shall extend to whomever commits an offence under paragraph 1 above by abuse of his official capacity, or if the offence results in riots, violence or any other serious consequence to the co-existence of the constituent peoples and others who live in the Federation of Bosnia and Herzegovina. Whoever perpetrates the criminal offence referred to in paragraph (1) of this Article by abuse of office or authority shall be punished by imprisonment for a term between one and ten years. (4) Whosoever commits an offence under paragraphs 2 above by abuse of his official capacity, or if the offence results in riots, violence or any other serious consequence to the coexistence of the constituent peoples and others who live in the Federation of Bosnia and Herzegovina, shall be punished by imprisonment for a term of between one and ten years. (5) Whoever commits the criminal offence referred to in paragraph 1 of this Article by public denial or justification of genocide, crimes against humanity or war crimes established by a legally binding decision of International Court of Justice, International Criminal Tribunal for the former Yugoslavia or a national court shall be punished by imprisonment for a term of between three months and three years.”

[35] This sentencing framework is consistent with the fact that David Irving was sentenced to 3 years in prison for Holocaust Denial: “David Irving Jailed for Holocaust Denial,” The Guardian, Feb. 20, 2006, https://www.theguardian.com/world/2006/feb/20/austria.thefarright

[36] The current text of Article 145a, the Criminal Code of Bosnia and Herzegovina reads as follows: “Inciting national, racial and religious hatred, discord or hostility, Article 145a, (1) Whoever publicly incites or inflames national, racial or religious hatred, discord or hostility among the constituent peoples and others who live in Bosnia and Herzegovina shall be punished by imprisonment for a term between three months and three years. (2) Whoever perpetrates the criminal offence referred to in paragraph (1) by abuse of office or authority shall be punished by imprisonment for a term between one and ten years.” The Criminal Code of Bosnia and Herzegovina, “Article 145a Inciting national, racial and religious hatred, discord or hostility,” https://www.legislationline.org/download/id/8499/file/CC_BiH_am2018_eng.pdf

The relevant text from the amendment proposed is as follows: Zlatko Miletić, Parliamentary Assembly of Bosnia and Herzegovina House of Peoples, Proposal for Amendments to the Criminal Code of Bosnia and Herzegovina, “Član 2. U ćlanu 145a. stav 2 mijenja se i glasi (2) Ko krivično djelo iz stava (1) ovog člana učini javnim poricanjem ili opravdanjem  genocida, žločina protiv čovječosti ili počinjenog ratnog zločina utvđenog pravosnažnom pravosnažnom odlukom Međunarodnog suda pravde, Međunarodnog krivičnog suda za bivšu Jugoslaviju ili domačeg suda, kaznit će se kaznom zatvora od šest mjeseci do pet godina. Iza stava (2) dodaju se novi st. (3) i (4) koji glase: (3) Ko krivično djelo iz stava (1) ovog člana učini donošenjem odluke dodjeli priznanja, nagrade, privilegija presuđenim ratnim zločinicima ili odlukom o dodjeli naziva javnom objektu – ulici, trgu, parku, mostu, instituciji, ustanovi, naselju, ili naseljenom mjestu po imenu i prezimenu presuđenog ratnog zločinca osuđenog pravosnažnom odlukom Međunarodnog suda pravde, Međunarodnog krivičnog suda za bivšu Jugoslaviju ili domačeg suda, kaznit će se kaznom zatvora od šest mjeseci do pet godina.” See the submitted amendment:  http://static.parlament.ba/doc/122561_Zakon%20o%20izmjeni%20i%20dopunama%20Krivicnog%20zakona%20BiH.pdf. For a news report on this initiative see: “Miletić HDZ-u: Negiranje genocida nije EU princip, Inzko da nametne zakon,” Vijesti.ba, Jan. 24, 2020,

https://vijesti.ba/clanak/476857/miletic-hdz-u-negiranje-genocida-nije-eu-princip-inzko-da-nametne-zakon.

[37] “MP submits proposal for law banning genocide denial to int. administrator,” N1, Jan. 27, 2020, http://ba.n1info.com/English/NEWS/a406432/MP-submits-proposal-for-law-banning-genocide-denial-to-int.-administrator.html

[38] Agamben, State of Exception, 4.

[39] The Karadžić Judgement of March 24, 2016 documents the following: “Having weighed the evidence discussed above in light of the systematic and organised manner in which crimes were committed in each of the Municipalities, the Chamber finds beyond reasonable doubt that between October 1991 and 30 November 1995 there existed a common plan to permanently remove Bosnian Muslims and Bosnian Croats from Bosnian Serb claimed territory through the crimes as set out in more detail below. The Chamber finds that starting in October 1991, the Accused and the Bosnian Serb leadership agreed on how they would respond to the declaration of sovereignty in BiH and the measures they would take to create their own ethnically homogeneous state.” International Criminal Tribunal for the former Yugoslavia, Judgement, Karadžić (IT-95-5/18-T), Trial Chamber, §3447, March 24, 2016.

[40] For a discussion of a one-time amendment in 2008 that allowed Srebrenica’s “pre-war” residents to vote in the municipal elections see: Cliff Bond, “Srebrenica: Confronting the Past, While Embracing the Future,” Commission on Security and Cooperation in Europe, July 24, 2008,  https://www.csce.gov/international-impact/srebrenica-confronting-past-while-embracing-future.  Also see, “Bosnia and Herzegovina Municipal Elections 5 October 2008, OSCE/ODIHR Needs Assessment Mission Report,” OSCE, July 28, 2008, https://www.osce.org/odihr/elections/bih/33034?download=true

[41] “Genocide Survivor: Swedish Academy Sees Muslim Lives as Less Valuable,” N1, 13 Dec. 2019, http://ba.n1info.com/Vijesti/a397581/Suljagic-Jednom-odlukom-su-resetovali-25-godina-nase-historije.html.