Bosnia and Herzegovina: The Constitutional Court Protects the Rule of Law Against Illiberal Memory Politics

The Constitutional Court of Bosnia-Herzegovina has recently annulled the attempt of the Serb-majority entity Republika Srpska – one of the country’s two entities, alongside the Bosnian-Croat Federation – to prevent the implementation, within its territory, of the law criminalizing genocide denial and the glorification of convicted war criminals.

This recent Constitutional Court decision is relevant because it represents an effort to reinforce the respect for the rule of law and the judiciary system – two pillars of every democratic society – against illiberal memory politics. The decision also clarifies the role of the High Representative – an ad hoc international institution set up by the 1995 Dayton Peace Agreement – in Bosnia’s constitutional order and the constitutional obligations of the two entities.

Background

The law criminalizing genocide denial and the celebration of convicted war criminals was imposed in Bosnia-Herzegovina by the former High Representative Valentin Inzko in July 2021. It has further prohibited the denial of war crimes and crimes against humanity if this incites hatred or violence. Inzko imposed this legislation (an amendment to the country’s criminal code) under the so-called Bonn powers that allow the High Representative to adopt binding decisions and remove public officials.

The reasons for this imposition should be ascribed to the growing culture of denial regarding the mass atrocities committed in the 1992-95 Bosnian war. During the conflict, the country experienced massive human rights violations, including Europe’s only post-WWII genocide – the massacre of more than 8,000 Bosnian Muslim men and boys (Bosniaks) by the Bosnian Serb Army in the UN-safe area of Srebrenica in July 1995.

Following the conflict, crimes committed during the war have been proven beyond any reasonable doubt before national and international courts. Despite this, reconciliation efforts have largely failed in the country. Over the past decades, the denial of war crimes, including the crime of genocide, has persisted in the public sphere. This is especially the case in Republika Srpska, where Srebrenica is situated and where genocide denial is officially promoted by institutions and politicians. It has even escalated recently into triumphalism – a situation in which genocide is celebrated and its perpetrators glorified as war heroes.

The decision of the High Representative to criminalize genocide denial triggered the country’s most significant constitutional crisis since the war ended in 1995. The National Assembly of Republika Srpska immediately rejected the imposed legislation by passing the law on the non-application of the High Representative’s decision. It further changed the entity’s criminal code by introducing prison sentences of up to fifteen years for calling Republika Srpska a “genocidal creation” or for disrespecting its symbols, independence, and territory. This has practically legitimized genocide denial and the celebration of its perpetrators within the borders of the entity.

The Bosniak Caucus in the Council of Peoples – the chamber that oversees decisions adopted by the National Assembly with a veto right – referred the law preventing the implementation of the genocide denial ban and the law changing the entity’s criminal code to the Constitutional Court of Republika Srpska. This Court rejected both cases in September 2021 by claiming that the contested legislation does not violate the vital interest of the Bosniak people because it applies “equally to all citizens.” Seven delegates in the Council of Peoples then referred the law rejecting the genocide denial ban to the Constitutional Court of Bosnia-Herzegovina which adopted its decision on July 14, 2022.

The Genocide Denial Case

In reviewing the constitutionality of the contested legislation, Bosnia-Herzegovina’s Constitutional Court first specified that the Dayton Peace Accords created the High Representative as an agent of the international community, while his special set of powers, including the authority to enact laws when Bosnia’s Parliament is unable or unwilling to act, was introduced by the 1997 Bonn Declaration.

The Court further observed that Bosnia-Herzegovina’s special political situation is not unique, as other countries experienced similar political circumstances in the past. Examples include the mandates under the regime of the League of Nations and, to some extent, Germany and Austria after WWII. Although recognized as sovereign, these countries were placed under supranational supervision, and foreign authorities acted in these states on behalf of the international community, substituting themselves for the domestic authorities. Acts by such international authorities were often passed in the name of the states under supervision.

By invoking its previous case law, the Court specified that the High Representative similarly intervenes in Bosnia’s legal order by substituting himself for the national authorities. In doing this, he acts as a state authority, and the laws he enacts are in their nature national laws enjoying the same status as laws adopted by the state Parliament. The law banning genocide denial should be thus intended as a national law. As such, it does not have a permanent character and can be changed by the state Parliament according to the appropriate procedure.

The Court then found that Republika Srpska’s law rejecting the genocide denial ban failed to comply with Article III(3)(b) of the Constitution of Bosnia-Herzegovina, establishing that entities enjoy constitutional autonomy but also that they have a positive constitutional obligation to harmonize their legislation with the Constitution and decisions adopted by state institutions. This includes laws passed by the state Parliament and decisions enacted by the High Representative.

The contested law further violated Article I(2) of the Constitution defining Bosnia as a democratic state operating under the rule of law. As observed by the Court, the rule of law principle implies a political system based on respect for the Constitution, laws and other regulations by both citizens and holders of governmental power. It further requires that entities cannot pass laws violating or evading obligations and procedures imposed by the state Constitution and legislation. By rejecting High Representative’s legislation, Republika Srpska acted unconstitutionally.

From the Rule of Chaos to the Rule of Law?

Although more than three months have passed since the adoption of the Constitutional Court’s decision, there are no signs that it has been executed or that it will be implemented in the future.

As stated by its President, Mato Tadic, the Court currently has 11 non-executed decisions by state or entities institutions. Republika Srpska, for example, has never implemented the rulings proclaiming the unconstitutionality of Republika Srpska Day because it is discriminatory against non-Serbs living in the entity. The consequence is that the holiday is still observed and celebrated each year on January 9.

These are all examples of illiberal memory politics thriving in countries such as Russia or Turkey, where memory laws openly protect the memory of oppressive regimes against the memory of their victims. In Russia, the 2014 memory law criminalized “the dissemination of knowingly false information on the activities of the USSR during WWII”, while the original version of Article 301 of the Turkish criminal code prohibited the “denigration of Turkishness” and was used in the past for prosecuting those questioning Turkey’s denial of the Armenian genocide. Similarly, in Bosnia-Herzegovina, the Serb-run entity has used illiberal memory laws to protect itself from accusations of international crimes rather than protecting the memory of the victims of war crimes and genocide.

The recent decision of Bosnia-Herzegovina’s Constitutional Court declaring the unconstitutionality of the law rejecting the genocide denial ban shows, however, that constitutional adjudication bodies can play a positive role in strengthening the respect for the rule of law against illiberal memory politics and further backsliding of countries toward legal anarchy. In the case of Bosnia-Herzegovina, this could have significant international peace and security implications.

Carna Pistan is a Marie Skłodowska-Curie Fellow at the Harriman Institute, Columbia University, and Institute for Comparative Federalism, Eurac research.

Suggested citation: Carna Pistan, ‘The Constitutional Court Protects the Rule of Law Against Illiberal Memory Politics’ IACL-AIDC Blog (8 Nov 2022) https://blog-iacl-aidc.org/new-blog-3/2022/11/8/bosnia-and-herzegovina-the-constitutional-court-protects-the-rule-of-law-against-illiberal-memory-politics.