Towards a dissolution? Lex Inzko and the fight over history

The Srebrenica-Potocari memorial and cemetery for the victims of the 1995 massacre over muslims in Bosnia Herzegovina. Photo: ToskanaINC / Shutterstock

The reinterpretation of the Srebrenica massacre and attempts to penalise its deniers have become an element of election discourse and political rivalry in Bosnia and Herzegovina, which in the summer of 2021 also engaged the international community. In fact, the Serbs from the Bosnian Republika Srpska used the imposed regulation of the High Representative for Bosnia and Herzegovina stipulating punishment for denying genocide in Srebrenica, to enforce their own pro-autonomy movement. This has brought the Bosnian state one step closer to dissolution. As a result, when the memory of the massacre is used as a dirty political tool, peace and reconciliation look like foggy ideals of the past.

Genocide and denial

During the four-year war in Bosnia and Herzegovina the strategy of ethnic cleansings was brought to perfection. However, the cruellest and bloodiest massacre took place in the summer of 1995 in Srebrenica. It was a multi-ethnic, Serbian-Muslim enclave located in an area of strategic importance for the territorial integrity of the new Serbian state. From the beginning of the war the city was taken over, a few times, by both sides – Muslim and Serbian. With time, it became the destination of choice for Muslims, who came here from other areas where they could no longer stay for various reasons. The area, besieged and cut off from humanitarian aid by Serbian forces, faced over-population as well as food, shelter and medical products shortages; as a result, it became a humanitarian catastrophe. In 1993 it was declared a safe area by the United Nations, but since March 1995, when Serbian forces took control over the town and its surroundings, access to humanitarian assistance was hindered and, consequently, the population’s living conditions worsened.

In this situation, over just a few days in early July 1995, over 8,000 Bosnian Muslims (Bosniaks), men and boys over the age of 12, were murdered by Serbian armed forces and paramilitary units in an act of genocide. Women and children, who were also victims of various crimes, including rape, were expelled from the city. In 2004, the Appeal Chamber of the International Criminal Tribunal for the former Yugoslavia univocally determined that the Srebrenica massacre was a genocide. It was aimed at the purposeful elimination of one ethno-national group, which is considered a crime by international law. In 2007 this interpretation was repeated by the International Justice Tribunal. Other international agencies, including the European Tribunal of Human Rights and the UN General Assembly also passed resolutions recognising that the Srebrenica massacre was an act of genocide. Indicatively, Bosnia and Herzegovina abstained from passing such regulations.

Despite court rulings, the denial of the Srebrenica genocide is present in local political discourse, the media, the politics of memory and Bosnian education system. The spectrum of scepticism stretches from the questioning of the court’s decisions that the massacre was a genocide, to a denial that a massacre ever took place in Srebrenica. Instead, it is said that an anti-Serb coup was organised. Also, the number and type of victims is questioned and the Serb war leaders are glorified. These are just examples of the tactics used by the genocide deniers.

With the passing of time, genocide denial, which is in line with the nationalistic discourse of the Serbian political elite, has become increasingly more visible. This, in turn, is interpreted as the last element of the genocide itself. It is also the official position of the authorities of Republika Srpska – one of the entities that make up the state of Bosnia and Herzegovina and inhabited mainly by Serbs. However, it also influences Serbs’ vision of the Bosnian state as well as Republika Srpska, which was often referred to as a “genocide creation” (genocidna tvorevina) by Muslim politicians.

Politically motivated commissions and studies

In 2002, when Bosnian Serbs were still actively trying to undermine the validity of Bosnia and Herzegovina’s existence, the Bureau of Government of Republika Srpska for Relations with the International Criminal Tribunal for the former Yugoslavia issued a highly controversial publication titled Report about Case Srebrenica authored by Darko Trifunović. In his text he claimed that 1,800 Bosnian Muslim soldiers were killed during fighting, while 100 died as a result of exhaustion and around 100 perished as a result of personal revenge or lack of knowledge of international law. The report also mentions the existence of mass graves, yet suggests that they were created for hygienic reasons.

In 2003, responding to the statements issued in this report, the Human Rights Chamber of Bosnia and Herzegovina ordered Republika Srpska, among others, to conduct a full investigation into the Srebrenica massacre. A commission that was then established presented its final report on June 4th 2004 (amended on October 15th 2004). In the text of this document it was admitted that at least 7,000 men and boys were killed by Bosnian Serb forces. At that time the president of Republika Srpska, Dragan Čavić, who was under strong international pressure, also admitted, in a speech, that a few thousand civilians had been killed by Serbian forces in violation of international law and that Srebrenica constitutes a dark chapter in Serbian history. Subsequently, the government of Republika Srpska issued official apologies to the families of the massacre’s victims.

The year 2004 was thus the only moment in recent history when the Bosnian Serb political elite were willing to offer an apology and reach out towards reconciliation. In fact, this situation was to a large degree a result of the international pressure put on the then ruling Serb Democratic Party (SDS). Things changed with the Office of the High Representative entering into a passive phase and the takeover of power by the Alliance of Independent Social Democrats (SNSD) led by Milorad Dodik. It was Dodik’s government which in 2010 started a revision of the 2004 report, claiming that the number of victims in the report was higher than the real one, while the language of the text had been manipulated. What is more, in July of that year, during the 15th anniversary of the Srebrenica massacre, Dodik said that even though he recognises the murder which had taken place in Srebrenica, he would not call it a genocide. He also added that had there been a genocide, then it was committed against the Serbian inhabitants of the region (meaning eastern Bosnia).

SNSD’s growing influence, as well as that of Dodik himself, allowed the parliament of Republika Srpska in 2018 to dismiss the 2004 report and organise a new commission to review it. This moment marked the peak of the ongoing policy of denying the genocide and historical revisionism, which has been practiced by Republika Srpska’s government for well over the last ten years.

The report published in July 2021 by the Independent International Commission of Inquiry on the Suffering of All People in the Srebrenica Region between 1992-1995 was aimed at verifying whether the thousands of Bosniaks who were murdered by Serb forces in July 1995 were indeed civilians. The report also accused the International Criminal Tribunal for the former Yugoslavia of organising politically biased trials of Bosnian Serb political leaders and military personnel. Finally, the report challenged classification of the Srebrenica massacre as a genocide. The authors of the report stated that after Srebrenica had been captured by Bosnian Serbs, the 28th Division of the Army of Bosnia and Herzegovina established a military column of over 12,000 members and broke through the Serbian lines. They then headed towards the territory controlled by Bosniaks. This column was then attacked by the forces of the Bosnian Serbs, who killed between 4,000 to 5,000 people, which was deemed a legal military activity.

The report also stated that a few thousand Muslims were cruelly killed while people who were responsible for this crime should be punished. However, it also stressed that among these victims there were between 2,500 to 3,000 prisoners of war and only a few hundred male civilians. It also stated that it is impossible to determine whether these crimes were committed for any other reason than the elimination of a military threat. This report was prepared by one of the two Serb commissions. The second one released in April 2021 also a highly controversial report. It states that during the war in Sarajevo there were also ethnic cleansings committed against the Serbs, which were ignored. These two reports demonstrate that the official narrative of Republika Srpska has changed; it denies the genocide in Srebrenica and presents Serbs as the true victims of the war – a position which is usually denied to them.

Lex Inzko and a “new-old” crisis

Considering the history of the reports issued by Republika Srpska and the behaviour of its politicians, it is clear that the regulations that penalise the denial of the genocide in Srebrenica that were introduced in July 2021 did not appear out of thin air. Such initiatives have been undertaken for over a decade now. In fact, there have been already two attempts to pass the law that would ban the genocide’s denial, but the bill did not pass the vote in 2011 or 2016.

Also, the first attempt to change the criminal code to introduce such a ban was made in 2009 and followed by a second try in 2017. During the last attempt – in April 2021 – when Serbian and Croat representatives in Bosnian House of Peoples voted against changes in the criminal code, Denis Becirović, one of the initiators of the law, stated that since the deputies of the main parties of the Bosnian Serbs and Croats, SNSD and the Croatian Democratic Union (HDZ), did not support these changes, the time had come for the High Representative to propose a solution. His call was supported by the organisations representing the victims of the genocide. In the end, already back in July 2019, Valentin Inzko, the High Representative for Bosnia and Herzegovina from 2009 to 2021, had announced that he expected that by July 2020 a law on genocide denial would be passed. He also stated that after that date he was ready to impose regulations on the basis of the so-called “Bonn powers”, even though the last time he had to force through his decisions was 11 years earlier.

As is often the case in Bosnia and Herzegovina, the parliament did not manage to pass the legislation. Thus, in July 2021, Inzko introduced an amendment to Bosnian criminal code which enforces punishment from six months to five years of imprisonment for the public denial, approval, diminishing, or justification of genocide, crimes against humanity or war crimes, if it takes place in a way that could stimulate violence or hatred. Providing any form of recognition, awards, special positions or privileges to people who had been convicted of genocide, crimes against humanity or war crimes can be punished by imprisonment of no less than three years. The same punishment is foreseen for people who name streets, squares, parks, bridges, institutions, buildings, communes or cities after a person who had been convicted of those crimes. As part of the justification, he pointed to the decision of Republika Srpska’s parliament to refuse to take away the medals that had been awarded to three war criminals.

Reacting to the so-called “Lex Inzko”, Dodik stated that he had no other choice but to pursue the secession of Republika Srpska. It was not enough that according to the official position of Republika Srpska there had been no genocide. The penalisation of genocide denial was put in force in a way which had been boycotted for many years by the Serbs, that is by means of the decision of the High Representative. Consequently, all Serbian parties withdrew their representatives from federal institutions. Then the National Assembly of Republika Srpska voted for laws which prevented implementation of the new regulations and amendments to the criminal code which criminalised attempts to accuse the RS of being responsible for a genocide on its territory.

Continuing this streak, in December 2021, Republika Srpska’s parliament passed a series of laws which allowed a transfer of power in the area of defence, justice and security from the central level to the entity. These legal acts also stipulate that the laws passed at the federal level in the aforementioned areas, together with the decisions made by the High Representative, do not apply in Republika Srpska. What is more, they called for the authorities of Republika Srpska to establish within the next six months their own institutions, including an army, intelligence agency and anti-corruption office. It has been almost a year and those institutions have not been created but in this way, Dodik has made successful attempts (which have been undertaken in the last decade and a half) to undermine the integrity of the federal structure of Bosnia and Herzegovina. The last months have also been described as a return to the politics of the 1990s and pre-war tensions.

The January commemorations of the Day of Republika Srpska, which have been deemed illegal by the Constitutional Court of Bosnia and Herzegovina, were accompanied by numerous nationalistic provocations. Yet, in a way, this is nothing new. For over two decades, Serbian and Croatian politics in Bosnia and Herzegovina have been defined by artificially created impasses and abuse of its constitutional system to force solutions that would fit the interests of certain stakeholders. The main cause of this escalation of tensions is the increasingly worsening economic situation and growing social discontent in Republika Srpska which have translated into a drop in support for SNSD. For decades such an escalation in ethnicized politics has been used to distract public opinion from contemporary problems and consolidate public support for the most radical parties. However, this is not all. The current stalemate has to be overcome if Bosnia and Herzegovina is ever to become a truly functional state.

Falsehoods, fraud and half-truths

Declassified protocols show that the European Commissioner for Neighbourhood and Enlargement Olivér Várhelyi stated that the responsibility for the current crisis, which brings the risk of a renewed conflict in the region, lies with Lex Inzko. Thus, EU officials are working on an “amendment” to the regulation to make it acceptable to all parties. For the moment, in February 2022, the National Assembly of Republika Srpska supported a bill on establishing its own agency to control its justice system – the High Judicial and Prosecutorial Council, thereby undermining the authority of the federal justice institutions in Bosnia and Herzegovina. This only deepened the political crisis in the country. It also shows that in Bosnia and Herzegovina the genocide in Srebrenica has proven to be a very effective political tool while politics in the country, despite the passage of time, is still dominated by ethnic interests.

As David Tolbert, former president of the International Center for Transitional Justice, stated: “Denial is the final fortress of those who commit genocide and other atrocities. […] It not only damages the victims and their communities, but also promises a future based on lies, sowing the seeds of future conflicts, repression and suffering.” A complete annihilation of a nation or an ethnic group requires the destruction of testimonies and memory, while falsehood and half-truths create confusion, making it difficult to distinguish what is true in a sea of lies. It is clear that without justice and paying tribute to the victims, peace cannot be achieved. And without peace, Bosnia and Herzegovina will eventually collapse.

Yet, everything suggests that this is what Dodik wants – or at least he bases his political capital on such claims. Recognising what took place in Srebrenica as a genocide would be a signal that Republika Srpska treats seriously its past, origin, as well as its belonging in the Bosnian state. It is thus not surprising that discourse which is based on the denial of the genocide in Srebrenica fits Dodik’s agenda and his secessionist plans. It also explains why he will try to take advantage of the decision imposed by the High Representative after 11 years of his passivity and indecisiveness.

Aleksandra Zdeb is a researcher and photographer. Her work concentrates on the post-Yugoslav area, conflict management, democratisation and minorities.

Bosnia and Herzegovina, genocide, lex Inko, politics, Srebrenica