GENOCIDE DENIAL BANNED IN BOSNIA – Oh what a tangled web we weave…(when first we practice to deceive)
In July 2021 the international body overseeing the peace plan for Bosnia decided to outlaw genocide denial. The Office of the the High Representative (OHR ) announced changes to Bosnia’s criminal code that now impose prison sentences of up to 5 years for genocide denial and the glorification of war criminals.
Valentin Inzko, the outgoing head of the OHR, claimed he was countering attempts by Bosnia’s Serbs to deny the scope of the 1995 massacre in Srebrenica.
His justification stated:
“Hate speech, the glorification of war criminals, revisionism or outright denial of genocide and war crimes prevent societies from dealing with their collective past, constitute renewed humiliation of the victims and their loved ones, while also perpetuating injustice and undermining inter ethnic relationships. All of this causes frustrations, makes the society chronically ill, and prevents the emergence of desperately needed reconciliation.”
He said he decided to use his powers after waiting for years for Bosnia’s politicians to act and cited a refusal by the Bosnian Serb assembly to withdraw decorations awarded to three convicted war criminals.
“The situation has gotten worse and is now getting out of hand,” Mr Inzko declared, warning that lack of acknowledgment was “sowing the seeds” for new conflicts. “Therefore, I believe that it is now necessary to regulate this matter with legal solutions.”
The real danger is that these ‘legal solutions’ are most likely to create more problems and further impede genuine progress. To criminalise honest and well founded differences of opinion by seeking to impose a literally incredible and unsustainable version of history is hardly a recipe for happier days.
That said, freedom of speech and expression – universally regarded as fundamental human rights – have never been absolute. They have always included a duty to behave responsibly and respect the rights of others without, for example, encouraging racial or religious hatred. Article 10 of the Human Rights Act enables public authorities to restrict free speech if they can show that their action is lawful, necessary and proportionate – i.e. no more than necessary to address the issue concerned.
The grounds for restriction are commonly:
- To prevent disorder or crime
- protect health or morals
- protect the rights and reputations of other people
- prevent the disclosure of information received in confidence.
- maintain the authority and impartiality of judges.
Limits on freedom of speech have always been accepted in such clearly defined circumstances. But to apply them in the case of Bosnia is not only provocative and counterproductive but utterly perverse. That free speech – the foundation of democracy – should be sacrificed to uphold the sham findings of a rigged court such as the International Criminal Tribunal for the Former Yugoslavia, is itself a travesty.
This was an illegal court, an entirely political construct created, funded and staffed by the US. A court that convicted on hearsay evidence, withheld primary evidence even from its own prosecutors, had no independent appeals process and refused point blank to try NATO war crimes.
The real offence in these circumstances is to criminalise anyone with the common sense to dispute its genocide verdicts and deprive them of free speech. There have always been situations in which freedom of speech can justifiably be qualified but this is demonstrably not one of them.
In the early 20th century US Supreme Court judge Oliver Wendell Holmes famously asserted:
“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic … The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”( Schenck v. United States in 1919)
He later amended his clear and present danger wording to read “an incitement to imminent lawless action” – essentially the test that still applies to this day. The question therefore with regard to genocide denial in Bosnia is whether the denial itself is used in such circumstances and is of such a nature as to constitute an incitement to imminent lawless action. The context is crucial and all important. Bosnian Serbs do not deny a terrible crime against humanity or an appalling massacre. What they deny is that this crime was justly proven by a properly constituted court to be genocide as defined by the international community I.e. the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.
The evidence for the deaths of an alleged 8,000 Muslim men has never been produced. Both sides in the conflict at the time agreed there was a total death toll of around 2000, overwhelmingly as a result military engagements. The fact that Serb commander General Ratko Mladic arranged for Muslim women and children to be bused to safety from Srebrenica to Tuzla is hard to reconcile with genocidal intent.
To deny genocide at Srebrenica is not an incitement to imminent lawless action – quite the contrary, it Is an appeal for truth and justice to prevail. What ‘sows the seeds of discord’ in Bosnian society and prevents healing and reconciliation is perceived injustice and the clear determination to perpetuate it. If there is nothing to hide there is nothing to fear from ongoing academic and historic research.
Using the law to criminalise genocide denial in these circumstances is plainly a cynical attempt to shut down any further research or inquiry into the events of the Balkan conflicts. Branding as heretics all who dare to question an authorised version of events is a vengeful medieval approach unworthy of a modern civilised society. What is making Bosnian society ‘chronically ill’ is precisely the denial of the right to pursue the truth and speak it. This is infinitely more damaging to the social fabric than anything that can be laid at the door of so called ‘genocide deniers.’
The action taken by the OHR may well seem necessary and proportionate to those with a powerful need to stop legitimate inquiry because of what it may reveal. That doesn’t make it lawful. The only clear and present danger in Bosnia today is to those with something to hide and who now find themselves caught in a trap of their own making.