The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?

“I disapprove of what you say, but I will defend to the death your right to say it.” –Voltaire

valentin inzko
Valentin Inzko, former High Representative (HR) of Bosnia and Herzegovina (BiH)

With a week left in his 12-year stint as the High Representative (HR) of Bosnia and Herzegovina (BiH), the Slovenian-born Austrian diplomat and honorary citizen of BiH, Valentin Inzko, exercised his omnipotent legislative authority granted to him by the Peace Implementation Council at its December 1997 meeting in Bonn, Germany or “Bonn powers”– the powers conferred to the HR to avoid obstruction by local authorities in implementing the Dayton Peace Accords (DPA) – to impose an amendment to the BiH Criminal Code. Effectively, he criminalized the denial or trivialization of genocide, crimes against humanity, or war crimes that have been found by the International Military Tribunal in Nuremberg, International Criminal Tribunal for the former Yugoslavia (ICTY), and other courts in BiH. With the War Crimes Section of the Court of BiH readily accepting adjudicated facts from ICTY final judgments as presumptively, though rebuttably, proven (thus reversing the burden of proof on the defense, as was the practice at the ICTY), the imposed amendment seemingly removes the rebuttable presumption, thus making any adopted adjudicated facts definitive and incontestable; ditto for conclusions of law.

For those who may not be aware of the functions and authority of the Office of the High Representative (OHR), the simple and rather crude way of putting it is that it was established based on the negotiated DPA that brought the BiH civil war to an end. The HR was entrusted with sovereign-like powers to effectively govern BiH by having, among other prerogatives, the right to impose laws without regard to or consultation with the democratically elected officials entrusted by the citizens of BiH to represent them (see paragraph XI(2) of the Conclusions of the Peace Implementation Council held in Bonn). As imperial or dictatorial as such plenipotentiary powers may be, the argument goes that these powers were essential for the HR to implement and fulfill the overarching aims of the DPA when considering the savagery and cruelty of the war that has forever torn to shreds BiH’s multi-cultural, multi-ethnic, and multi-confessional fabric (save for a modicum of tolerance and inclusion on matters of common interest, and even this, is questionable).

Much can be written about post-DPA BiH, the role of the OHR, the justification for it, or the heavy-handedness (depending on your perspective and subjectivity) of the various HRs. Just as much can be written about the political dysfunctionality of BiH at the municipality, district, cantonal, entity, or state level, or the unrelenting shenanigans of the political elite on all sides, or on the intrusiveness and influence peddling of foreigners who shamelessly side with and advocate for one side or the other while hypocritically claiming to be cloaked in objectivity. But that’s beside the point of this post.

Setting aside politics (though even when descriptive, the specter of politics or playing favorites is enthusiastically implied when discussing transitional justice matters in BiH), my aim is to objectively analyze this imposed amendment –  anathema as it may appear to some – and express my views on why it is fraught with perilous traps and obvious flaws that call into question not just the rationale of the legislation, but its implementation as well. Others may see things differently, but if we can at least agree that it is sound, if not essential, to be able to disagree without being disagreeable, and certainly without fear of repercussions, then I invite you to read on.

The Process

When drafting and adopting legislation, process is principal – even more so than substance if the aim is acceptability and legitimacy. As acknowledged, HR Inzko had the authority to impose laws, so his actions here cannot be claimed illegitimate. This does not mean that his actions should not be questioned, any more than his exercise of his raw authority should categorically be assumed prudent. And lest there be any misunderstanding, I am neither questioning his motive nor his integrity, which, as I see it, are distinguishable from his purpose or reasoning for imposing the amendment to the Criminal Code.

The preambular considerations for imposing this amendment notice that “all legislative initiatives brought before the parliamentary assembly of Bosnia and Herzegovina to address this issue have been blocked,” thus necessitating HR Inzko’s intervention as he was parting from BiH, presumably because he thought no further discussions should be held, saw this as a legacy accomplishment, and/or did not want the matter to be left to the discretionary authority of his successor. Whatever his reasoning, HR Inzko seems to have concluded that exigency forced his hand in imposing this amendment because “prominent individuals and public authorities in Bosnia and Herzegovina continue to deny that acts of genocide, crimes against humanity and war crimes were committed during the armed conflict, that individuals and public authorities publicly question the legitimacy of judgements issued by the International Criminal Tribunal for former Yugoslavia and the Court of Bosnia and Herzegovina and that individuals and public authorities honor or praise convicted war criminals.”             

Objectively, anyone familiar with BiH politics would forthrightly admit that of the three national constituencies controlling the levers of government whether at the municipality, district, cantonal, entity, or state level, all, without exception, engage in high and low politics, disruptive gamesmanship, chicanery, and opportunistic mendacity. It is not about partisan politics – as all the above could succinctly describe the state of affairs in the US, where misinformation, dog-whistling, and gaslighting is also tolerated if not encouraged by a large segment of the population – but ethnic-identity politics.

This is not the place to go into the BiH political scene (as promised). But having closely followed the internal and external politics of BiH, in my humble opinion, far too many issues that were the cause of or emerged during the war remain unresolved. And herein lies the Gordian knot in achieving a consensus for agreeing to the need for and the passage of an amendment in the Criminal Code that effectively criminalizes thought and forces the acceptance of final judgments from the ICTY, which, to many, are flawed, biased, and result-determinative. Whether these sentiments are warranted is irrelevant; they speak to a reality, which, assuredly, HR Inzko would have known from his 12-year tenure in BiH (assuming he was not smitten with one of the sides and/or harbored misgivings as to the other two).

Setting aside the merits for adding this crime to the BiH Criminal Code, other than the shadowy assertion of legislative initiatives having been blocked, HR Inzko provides nothing concrete. Perhaps there is something to his claims, but questions abound. Who initiated these initiatives? What was the text of the initiatives? What was the drafting process of the initiatives? Were these initiatives proposed for a first reading before the parliamentary assembly of BiH? Were the draft initiatives outright opposed as initiatives per se or opposed because, as drafted, they seemed overly sweeping or inexact? Were there proposed amendments to the initiatives, and if so, who proposed them and what were they?

I could go on, but my point should be obvious.

There is no legislative history nor draft initiatives from which to conclude whether the supposed legislative initiatives brought before the parliamentary assembly of Bosnia and Herzegovina were formally presented and debated or whether they were informally discussed between the leaders of the national constituencies (Bosniaks, Serbs, and Croats) and party elites. Having worked for the OHR, I can attest, for what it’s worth, that while there is a general process in place, the OHR conveniently indulges in situational ethics when it suits its needs or wants by ignoring transparent procedures and protocols and taking action, while shamelessly blaming one or more sides for dragging things out or obstructing by not submitting to the HR’s or OHR’s will.

No, I am not suggesting that this is the case in this instance. But considering the controversial (and political) nature of the added crime, not to mention the host of attendant issues related to its implementation (discussed below), if it is the expectation of the OHR and the states who are signatories to the DPA that this imposed legislation be viewed as legitimate by the BiH body politic, transparency in drafting process, legislative history, legal discussions, etc. would certainly assist. It would also be of use to those interested in examining the process and attempting to understand how the imposed amendment – assuming it or a similar version was presented for parliamentary discussion – should be interpreted and implemented.

The Imposed Amendment

As abhorrent as it is to deny irrefutable historical facts of crimes committed by states, state actors, non-state actors, or individuals, as a champion of free speech, I find it even more abhorrent to legislate thought or prohibit deeds that express thought (speech) – however distasteful and provocative – when not intended to incite violence, as prescribed by law. Put differently, I am willing to tolerate one’s right to harbor absurd, irresponsible, bigoted, racist, and revisionist views that fly in the face of common knowledge and decency, however offensive they may be. It is not about excusing or condoning or engaging in clever moral-equivalency arguments. It is about freedom of thought, freedom of expression, and freedom of speech.

So, yes, as I look at HR Inzko’s imposed crime to the BiH Criminal Code, I find it offensive to legislate what the BiH body politic and others should accept as irrefutable facts because the ICTY Appeals Chambers’ judgments say so. No, I am not suggesting that medals should be given to convicted war criminals, no more than I am suggesting that someone convicted by the ICTY must intellectually accept as unassailable truths the findings of fact and conclusions of law – even if the case has run the full gamut.

It is hardly a revelation that not all ICTY Chambers were composed of experienced, competent, and conscientious judges and not all ICTY Trial Chambers meticulously examined all the facts objectively in rendering their judgments. And, as I have bemoaned in the past, Appeals Chambers were loath to go beyond the surface of the facts by claiming that since Trial Chambers enjoy a “margin of deference” and unless no reasonable trier of fact could have reached such findings, they should not be disturbed (for contrary authority, see the ICC Appeals Chamber’s decision in Bemba, where the Majority was accused of applying a lower standard of review by daring to dig into the record, “identify significant problems with the manner in which a Trial Chamber has analysed the evidence or applied the standard of proof,” and “ensure that the evidentiary basis for its factual findings is set out ‘fully’” – a necessary function of the Appeals Chamber according to Judges Christine Van den Wyngaert and Howard Morrison; see here for my take). Hence, can we, or better yet, should we, without hesitation, without doubt, without inquiry, accept as unwavering truths these findings, however flawed and unreliable they may be? I think not. Even if these Chambers (Trial and Appeal) got it right, why should anyone be forced to intellectually accept them by remaining silent or refraining from expressing honestly or even dishonestly held beliefs? No, I am not advocating revisionism or for final convictions to be claimed illegitimate and non-binding.

But there are more reasons to be concerned over the imposed crime. If it merely abridged one’s rights to freedom of thought, expression, and speech, I might be less inclined to get worked up to the point of blogging about it (but knowing myself, I probably would). The imposed crime does much more: it abridges the fundamental fair trial rights of the accused before BiH courts handling cases resulting from the BiH civil war where crimes of genocide, crimes against humanity, and war crimes were adjudicated by the ICTY.

Let’s look at the imposed amendment before going any further.

LAW ON AMENDMENT TO
THE CRIMINAL CODE OF BOSNIA AND HERZEGOVINA

Article 1

(Amendment to Article 145a)

      • In the Criminal Code of Bosnia and Herzegovina (Official Gazette of BiH Nos. 3/03, 32/03, 37/03, 54/04, 61/04, 30/05, 53/06, 55/06, 32/07, 8/10, 47/14, 22/15, 40/15 and 35/18) in Article 145a, after paragraph (1) new paragraphs (2) to (6) shall be added to read:

“(2) Whoever publicly incites to violence or hatred 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 that behaviour does not constitute the criminal offence from paragraph (1) of this Article, shall be punished by imprisonment for a term between three months and three years.

(3) Whoever publicly condones, denies, grossly trivializes or tries to justify a crime of genocide, crimes against humanity or a war crime established by a final adjudication pursuant to the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945 or by the International Criminal Tribunal for the former Yugoslavia or the International Criminal Court or a court in Bosnia and Herzegovina, 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, shall be punished by imprisonment for a term between six months and five years.

(4) Whoever perpetrates the criminal offence referred to in paragraphs (1) to (3) of this Article by public dissemination or distribution of tracts, pictures or other material, shall be punished by imprisonment for a term not less than one year.

(5) If the criminal offence referred to in paragraphs (1) to (3) of this Article is carried out in a manner likely to disturb public peace and order or which is threatening, abusive or insulting, the perpetrator shall be punished by imprisonment for a term not less than three years.

(6) Whoever gives a recognition, award, memorial, any kind of memento, or any privilege or similar to a person sentenced by a final judgement for genocide, crimes against humanity or a war crime, or names a public object such as a street, square, park, bridge, an institution, building, municipality or a city or similar, or registers a brand, after or under a name of a person sentenced by a final judgement for genocide, crimes against humanity or a war crime, or whoever glorifies a person sentenced by a final judgement for genocide, crimes against humanity or a war crime in any way, shall be punished by imprisonment for a term not less than three years.”

      • Paragraph (2), which shall become paragraph (7), shall be amended to read:

“(7) A perpetrator of the criminal offence referred to in paragraphs (1) to (4) of this Article who is an official or responsible person or employed in an institution of authority or any body financed through public budget, shall be punished by imprisonment for a term not less than three years.”

Article 2

(Entry into Force)

This law shall enter into force eight days after the date of its publication on the official website of the Office of the High Representative or one day after the date of its publication in the “Official Gazette of Bosnia and Herzegovina”, whichever comes first.

Before delving into the specifics of the imposed law, some context worth considering.

For nearly two decades, war crimes cases have been prosecuted at the Court of BiH as well as at lower courts in BiH. Indeed, prosecutions are ongoing. The end is nowhere in sight. Prosecutors in these cases have persistently and reflexively attempted to have ICTY case transcripts and judgments admitted wholesale as adjudicated facts, absent the rebuttable presumption afforded to adjudicated facts at the ICTY.1 See e.g., Prosecutor’s Office of Bosnia and Herzegovina v. Babić  et al., S1 1 K003472 09 KrI (X-KR-08/549), Verdict, 21 December 2010, para. 71 (noting a motion by the Prosecutor’s Office of BiH for the Court to accept as “established facts” the facts established in the judgments of several ICTY cases) (found on the BiH State Court website here).  Wisely, the judges have resisted this call to effectively abandon their judicial obligation to hold the prosecutors to their burden of proof by adducing relevant and reliable evidence as opposed to accepting findings made by the ICTY judges.

Assuredly, in no small measure it is because of the challenges mounted by defense counsel that adjudicated facts from ICTY cases have not been adopted wholesale by the BiH judges. More to the point, it is because the accused before these courts have certain inalienable fundamental constitutional rights grounded in the Universal Declaration of Human Rights (BiH Constitution, Preamble, Art. I), International Covenant on Civil and Political Rights (BiH Constitution, Preamble, Annex I), the European Convention on Human Rights (BiH Constitution, Art. II(2)); and the right to fair hearing in criminal matters and other rights related to criminal proceedings (BiH Constitution, Art. II(3)(e)), that defense counsel on behalf of the accused have been permitted, if not compelled by their ethical and professional duty of due diligence obligations under the Law on Attorneys’ Profession of the Federation of BiH (here) or Law on Attorney’s Profession in Republika Srpska (unofficial translation here) to challenge any and all factual assertions and legal claims in the charging documents, including whether, as alleged, genocide, crimes against humanities, and war crimes occurred.

With cases ongoing in BiH, the imposed law, on its face, seems to positively prohibit any challenges to ICTY adjudicated facts proposed by the prosecution, as well as any challenges as to whether genocide, crimes against humanity, or war crimes were committed where the factual matrix of the case touches on ICTY final judgments. Does this not infringe on an accused’s fair trial rights? Yes. The imposed law makes no distinction between those who may be denying these ICTY adjudicated findings, say, in a coffeehouse setting or from a political bully pulpit, or in a legitimate legal submission in a case where an accused cloaked with the presumption of innocence is defending against criminal charges. And query whether a reasonable argument can be made by the prosecution that a judge or panel of judges declining to commence a trial with an acknowledgment that genocide, crimes against humanity, or war crimes were in fact committed or declining to unquestionably accept adjudicated facts from ICTY judgments are committing a crime under the imposed amendment.

Were this not enough, what do such phrases as “grossly trivialize” or “tries to justify” mean? Is it a gross trivialization for instance, to assert that the attack on Srebrenica by the Army of Republika Srpska (VRS) was legal and/or justified in light of the circumstances such as the illegal militarization of Srebrenica and the constant raids by the Army of Bosnia and Herzegovina (ABiH/Muslim) fighters (as acknowledged by Naser Orić, who bragged about “cutting the throat” of one of his alleged Serb victims)? And what if, despite the numerous final judgments, an accused wished to challenge whether genocide occurred at Srebrenica while acknowledging that the facts more fittingly meet the elements of extermination, which is what I and others maintain (see my final trial brief in Blagojević & Jokić); even William Schabas has expressed doubts. Would the accused also be charged under this imposed crime of genocide denial? Or to put it differently, does an accused enjoy his/her full fair trial rights if s/he is forced to select between pressing ahead with a viable defense only to be charged under the imposed crime, or forego the defense and hope for the best to avoid being charged with the imposed crime?

Aside from the inexact framing of the actus reus, what exactly is the mens rea? I’ll stop here. Objective readers can draw their own conclusions as to whether the imposed crime is overly broad and constitutionally flawed.

Advice to BiH Defense Counsel

For what it’s worth, my advice to my BiH colleagues defending war crimes cases is to resist going forward in any such cases until the BiH Constitutional Court weighs in and decides on the constitutionality of the imposed amendment. The HR is not above the BiH Constitution, and under the authority vested in him, he has no right to override any of the human rights protections afforded to BiH citizens. Put simply, HR Inzko is not above the BiH Law and his edicts and impositions, however well intended, are subject to scrutiny, and if appropriate, reversal, by the BiH Constitutional Court.

In brief, defense counsel should consider arguing:

    1. The unconstitutionality of the imposed amendment on the grounds that:

a. It violates your client’s right under the Preamble and Article II(1) of the BiH Constitution:

        • The Preamble and Article 1 of the Universal Declaration of Human Rights guarantee “freedom of speech and belief” and “reason and conscience;”
        • Article 10 of the Universal Declaration of Human Rights guarantees the right to a fair trial;
        • Article 14 of the International Covenant on Civil and Political Rights guarantees the right to a fair trial; and
        • Article 19 of the International Covenant on Civil and Political Rights guarantees the rights to hold opinions without interference and freedom of expression.

b.  It violates your client’s right under the Article II(2) of the BiH Constitution:

        • Article 6 of the European Convention on Human Rights guarantees the right to a fair trial; and
        • Article 10 of the European Convention on Human Rights guarantees the right to freedom of expression.

c.  It violates your client’s rights under Article II(3)(e) of the BiH Constitution, which guarantees all accused in BiH, however charged in whatever BiH court, to a fair trial, and, inexorably, provides the accused with the right to a robust defense through competent and unhindered defense counsel by challenging the evidence, confronting witnesses, adducing evidence, and challenging all legal issues before an impartial and independent judge or panel of judges.

    1. As it stands, the imposed amendment is so overly broad and vague that it makes it impossible to discern the actus reus and mens rea elements of the crime, which impleads the right of the accused, through his counsel, to challenge certain facts and conclusions emanating from ICTY judgments without risking being charged, prosecuted, and incarcerated under the imposed amendment.
    1. The imposed amendment has a chilling effect on defense counsel who are placed in the untenable position of either not robustly defending their client as expected of them under their Law on Attorneys’ Profession (code of conduct) and thus contributing to the client’s denial of a fair trial, or acting diligently at the risk of being charged, prosecuted, and incarcerated for carrying out their professional duties in the finest tradition of the legal profession and in keeping with their oaths.
    1. Judges are effectively forced to abdicate their authority by denying the accused to mount a full defense and to effectively admit as proved beyond doubt and beyond challenge, findings of facts and conclusions of law of ICTY judgments, thus manifestly abridging the accused’s constitutional rights.
    1. The proceedings should be suspended until the BiH Constitutional Court can thoroughly examine and decide on the constitutionality of the imposed amendment.
    1. The Trial Chamber should request the Plenum of the Court (plenary session of all Courts of BiH judges) to seize the BiH Constitutional Court with this matter under Article IV(3)(c) of the BiH Constitution, which provides:

The Constitutional Court shall have jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with this Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, or with the laws of Bosnia and Herzegovina; or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.

Parting Thought

For those who write academic articles or blogs, query whether they too may be subject to prosecution under this imposed law. Now that I have reaffirmed my opinion on Srebrenica that the more appropriate crime was extermination and not genocide, will I risk arrest and prosecution when I next visit BiH? Let’s hope not, but if so, at least I will have the satisfaction of having exercised my fundamental right to think independently and speak freely.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

3 thoughts on “The BiH High Representative’s Criminal Code Amendment’s Criminalization of Thought to Foster Reconciliation: dare we publicly question the infallibility of the ICTY’s findings of facts and conclusions of law?”

  1. Very interesting, and you know what, one can understand and sympathize with those arguments raised here.

    Yet, only prima facie so. And why is that:

    First, in law or litigation, there is a clear concept, named: common knowledge necessity. The latter, suggests, that one can’t challenge, what is common knowledge. Suppose that one lawyer, would asset in court, that second world war, is fake story or event. Never ever happened. Of course, no sane judge, would further let him argue and debate and prove further such ridiculous notion or assertion. Unacceptable.

    Now, the issue then, must be the following:

    Whether, final judgment, concluding findings of facts and law, fall into such notion or scope as: common knowledge. Well:

    Some, and even many, would argue, that definitely yes. Judges are too serious. The process is too serious. Binding as hell. Why second world war, and not the findings and conclusions of one panel of experienced judges ? Let alone, while evidentiary process, is far stronger, than any historian can dream of. Direct, and amazingly powerful.

    Yet, we can’t neglect the constitutional concerns raised in the post, concerning fair trial issues. One strong argument, would be, that:

    Those judgments, by nature, are criminal, but never, and frontally so, decide or prevail about general conclusions, but rather, concentrate, about the guilt or innocence of natural persons. It is not about judging states. Nor groups. But, individuals.

    As such, one individual, must distance himself from those crimes, which are to be considered as common knowledge. For, not the general occurrence or event is the issue. But, his individual share or individual participation.

    Thanks

  2. Hereby in legal dictionary(USLegal) they describe, exemption to the rule concerning the need to testify an expert. I quote relevant part:

    ” In Fossett v. Bd. of Regents, 258 Neb. 703 (Neb. 2000), it was held that common-knowledge exception is an exception to the requirement of expert testimony. It is invoked in a situation where the evidence and the circumstances are such that the recognition of the alleged negligence may be presumed to be within the comprehension of laymen.”

    So, even while dealing with an expert testimony, there is no need to testify such expert, if it is about, common knowledge.

    https://definitions.uslegal.com/c/common-knowledge-exception/

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