The Legal Prosecution of “Wrong” Historical Consciousness

“The mass killings around Srebrenica in July 1995 took place in the context of the Bosnian civil war that led to the dissolution of Yugoslavia. Whereas Muslim troops terrorised Serb villages around Srebrenica during winter and spring, Bosnian Serbs took over the old mine-town in July and killed hundreds, if not thousands of Muslim men in the following days and weeks. The killing of Muslims around Srebrenica was a war crime like others that happened during the years 1992 to 1995. To name it a genocide is not justified.”

According to new laws in the European Union, an evaluation like this immediately risks to lead to a court procedure in all EU-European countries. Denying of genocide became a new corpus delicti, a new cause of accusation as a crime.

“The displacement of hundreds of thousands of Armenians in 1915 is hardly to be characterised as a genocide. It was part of the cruelties during World War I, when Armenian nationalist forces tried to overwhelm the Ottoman rule with the help of the tsarist military. The commemoration of this event should be held under the expression ‘massive violation of human rights’ or ‘massacres’ but not under the term genocide.”

This is again an analysis, which could bring the author to court and to jail, if the new laws in the European Union were executed. The same is possible to happen if historians, journalists or politicians will question genocide in Darfur, Kampuchea, Ruanda etc. pp.

Council Framework Decision criminalises opinion

On the 28th of November 2008 the Council of the European Union passed the Framework Decision 913/JHA on “combating certain forms and expressions of racism and xenophobia by means of criminal law”. Perfidiously enough the law aiming on “wrong” opinion is labelled with the expression “fighting racism and xenophobia”. But in article 1c one can read what else the EU-Council is going to criminalise. The text states the following: ”Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: 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.” Within two years after the Framework Decision, in November 2010, all EU-member-states had to implement this decision into national laws, another three years later, on the 28th of November 2013, there will be a review guided by Brussels to check if it is well implemented.

Where does this criminalisation of denials lead to? First and for all the new laws on prosecuting the denial of genocide or even its condoning is mixing criminal acts and deeds with discussions about their political and/or historical classification. By this the European Union is following a dangerous path in the development of judicature. Since a couple of years we can see a shift from criminal law covering deeds to criminal law covering social enemies and their opinions. As the German Minister of Justice in 2007, Brigitte Zypries, noted when she fought for the implementation of the law: “We do not want to wait until a criminal act will be accomplished to persecute the criminal and punish him eventually, but we will be able to take legal measures before a crime is accomplished to avoid it.” What sounds understandable at the first instant, is a serious contradiction to what forms the basis of Western democratic constitutions: the separation of legislative and executive power. In case of the new laws on denial of genocide or “wrong” commemoration it is very likely that an “enemy” will be identified first – like for example the Serb-Bosnian army in 1995 – and then judged along political and historical demands of those, who control the procedure.

One may argue that this criminalisation of opinions requires to be codified by an international Court, precisely by the International Criminal Court in Den Haag. But this is worse than being based on pure political decisions. In cases of historic commemoration or political opinion (on codifying for examples massacres as genocide) court judgements are to question, because they exclude political debates. We thereby face a general shift in Western societies to submit more and more interactions to legal court procedures. In our case it touches an intellectual interaction like an open debate on what happened in Srebrenica in July 1995, which is submitted to a legal procedure.

Laws and courts replace political arguments. The Council of the European Union by passing the Framework Decision suppresses possible and necessary discussions on heavily disputed events by handing decisions over to an international court. By the way: this International Criminal Court is not recognised by the most powerful states in the world like the United States, Russia, China and India.

What is genocide? This question is the key issue. What differs massacres, ethnic cleansing und mass murder form genocide? The answer cannot be found any more in a free and open discussion. Scientific debate or journalistic research is out-ruled, more over: it is threatened by the judgement of a widely not recognised Court.

Political instrumentalisation

Genocide and war are like twins. Massacres, ethnic cleansing and war crimes go together with what was codified in the United Nations under the UN-Convention to prevent genocide drafted in 1948. This convention clearly states that a precondition for genocide is the will to exterminate an ethnic, national or religious group. Who is going to define war events with regard to this UN-Convention? As everybody knows, wars are not only carried out on land, airspace and sea, but also in the sphere of propaganda. So we should look accurately, who is accusing whom for committing genocide. And in who’s interest is it to define a massacre to be a genocide?

Let’s take the example of the Bosnian civil war between 1992 and 1995. NATO and the United States were no neutral observers. Their airforce intervened directly since February 1994, when a massacre on the market square in Sarajevo took place, which could not be clearly attributed to one of the fighting groups. Washington used this massacre as a pretext to send bombers against Serb towns. NATO participated in the war on the side of the Muslim Bosnian army. Later, the Western military alliance, in the meanwhile enlarged by new Eastern European states to an alliance of 19, started a non-declared war on Serbia. On the 24th of March 1999 NATO ended the post-war period in Europe by attacking Serb cities with air-raids that lasted 78 days. This attack was against International Law and without any “permission” of the United Nations. Nevertheless the Western alliance accelerated the bombing. In the middle of this war, the leader of Serbia, Slobodan Milosevic, was accused by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to have committed war crimes and genocide. The ICTY had been installed ad hoc and was (and still is) under the influence of the USA and some Western NATO-allies, it is even co-financed by Western non-governmental institutes like the Soros foundation. The accusation against Milosevic cannot be interpreted otherwise than as part of the (propaganda) war the alliance led against Serbia. And the ICTY played its role as a political instrument.

As we know Milosevic did not survive his trial. But on another stage the fight for defining genocide continues. It was the International Court of Justice (ICJ) – not to be confused with the International Criminal Court – in the same town of The Haag that dealt with an accusation of Bosnia-Herzegovina against Serbia.

On the 26th of February 2007 the ICJ decided that Serbia was not culpable for the Srebrenica genocide. Ironically, this same judgement was taken as the basis for the European Union to declare the massacres of Srebrenica to be a genocide committed against the Muslim Bosnians. The word “genocide” in the judgement, although Serbia was not found guilty for it, fuelled the argument for the prospective procedures.

The circumstance, how it could come to a definition of genocide for one special event in the Bosnian civil war, quite clearly shows the dangerous character of juridical definitions of political processes. “Srebrenica” became an instrument not only for shaping the identity of Bosnia, but nowadays also for hegemonising the debate on the cruelties of civil war within European scientific and journalist communities.

The situation is very similar in other disputed historical events. If this is the war in the Darfur region or the evaluation of what happened in Kampuchea during the rule of the Khmer Rouge, or what happened in Anatolia at the end of the Ottoman Empire.

Not to be misunderstood: there are good reasons to declare the killings in Srebrenica or the ethnic cleansing in Anatolia or the hunger in Kampuchea to be a genocide. One could answer, in this case we should consider also Muslim killings around Srebrenica before July 1995 or US-bombing in Vietnam with its deployment of chemical weapons like Agent Orange as genocide. My point is different: yes, if there was a genocide, it should be brought before a trial. But no, one should not forbid the discussion about the circumstances, which easily can be interpreted as “denial” of the fact. There are always doubts on political and historical events. By accusing and punishing denial of genocide or “crimes against humanity”, Brussels is going to forbid such doubts. This is dishonourable for a democratic society. It aims at its major qualities and values such as the freedom of speech. Prosecution of denial of genocide by court in the case of Srebrenica thereby continues with legal means the preceding political and military foreign interference.

Strange laws of commemoration

Throughout the world different political regimes punish what they consider to be “wrong” thinking. In most cases this sort of legacy is closely connected with the building of national identity. The new laws in the European Union discussed above are parts of this phenomenon. But there are far more legal legacies in different countries. Let’s take the example of the “Armenian Holocaust” – as the cruel events of 1915 were called, thus introducing the term holocaust into the international debate. In Turkey it is against the law to declare the ethnic cleansing of Armenians to be a genocide. In France it is the opposite. There a law passed in 2006, which punishes the denial of this genocide. From time to time the contradicting legal situations in the two states pose diplomatic problems. The French legislation is full of so called “Lois memorielles”, commemoration laws. The “Loi Gayssot” prohibits the denial of “crimes against humanity”, the “Loi Taubira” declares the slave-trade as a “crime against humanity” which is not to be denied. On the other (conservative) side, the “Loi Mekachera” forbids to insult the French colonial troops of the 1960s in North Africa. And recently there was an attempt to declare the abatement of contra-revolutionary peasants in the French Vendee in 1793/94 to be a genocide.

In the Ukraine the Holodomor of 1932/33 is a legal subject since Viktor Yushchenko declared the Ukrainian catastrophe to be a genocide conducted by Moscow against the Ukrainian people and tried to punish its denial. Several other states followed this interpretation.

A new wave of commemoration laws is sloping from Eastern European countries. Their common issue: to declare the denial of communist crimes to be a crime. In December 2010 six new EU member-states asked for a law to prosecute the denial of what is to be declared as a communist crime. The Czech foreign minister, Karel Schwarzenberg, assembled his colleagues from Hungary, Bulgaria, Romania, Lithuania and Latvia to ask Viviane Reding, Vice-President of the EU-Commission, to implement such a law… The first attempt failed.

National, social, ethnic, religious, cultural commemoration is of great importance in every community. Key elements of commemorating often have to do with conflicts throughout history. Making laws and engaging juridical courts for implementing what is considered to be the truth, can only be interpreted as a sign of political weakness of the respective elite. Instead of open discussion they try to slip under the umbrella of court decrees, which claim truth on juridical grounds.
_______________

Hannes Hofbauer is the author of a book on “Decreed truth, punished attitude” that will appear in German language in October 2011

Source: Strategic Culture Foundation