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“So there’s no confusion, I’m Radovan Kovacevic, I respect all the victims of Srebrenica, but I state clearly: ‘There was no genocide in Srebrenica’,” the then adviser to Dodik told media.
A man called Ekrija Ramic from Bratunac decided to take action. As someone who lost many family members during the 1995 genocide of Bosniaks from Srebrenica by Bosnian Serb forces, and who witnessed the shooting of his own father in 1992, he said he felt hurt and upset.
Ramic reported Kovacevic to the state prosecution. “I considered that he breached the law and I wanted to report him. That is my civic duty,” he explained.
However, several months later, Kovacevic was publicly boasting that he would not be investigated.
Via a freedom of information request, BIRN obtained the state prosecution’s decision which said that that there are no grounds for initiating proceedings against Kovacevic because he didn’t break the law and only exercised his right to freedom of speech.
A legal change to ban the denial of genocide and war crimes and the glorification of war criminals if it is “likely to incite to violence or hatred” was imposed in July 2021 by High Representative Valentin Inzko, the top international official responsible for overseeing the implementation of the peace deal that ended the 1992-95 Bosnian war.
Transgressors can be punished with prison sentences ranging from six months to five years. Inzko said he was imposing the changes because he was “deeply concerned that prominent individuals and public authorities” in Bosnia and Herzegovina were continuing to deny that the Srebrenica massacres constituted genocide.
From the imposition of the ban in July 2021 to the end of 2022, state prosecutors decided not to conduct a total of 27 investigations into alleged denial and glorification offences.
BIRN has obtained partially anonymised decisions from the prosecution which suggest that prosecutors rejected a number of reports of genocide denial in comments that individuals and officials made in the media and in social media posts.
Lejla Gacanica, a Bosnian legal expert who researches war crimes prosecutions, who analysed these decisions for BIRN, said she is worried that opportunities to investigate and prosecute criminal offences are being passed up too easily.
“A realistic outcome is that such practices will discourage the public from reporting [offences] and trusting in the enforceability of the law. At the same time, it will encourage those who deny and glorify war crimes and criminals,” Gacanica said.
So far no indictments have been filed, so there are no court verdicts for genocide denial or the glorification of war criminals.
In a significant number of cases, prosecutors didn’t conduct investigations because they couldn’t determine the identity of the alleged perpetrators. This mainly concerned comments on social media or on articles on websites, but in one case police failed to identify a large group of citizens who walked through the streets carrying a banner depicting a convicted war criminal.
Chief state prosecutor Milanko Kajganic also pointed out that the prosecution has not received a single report about such a criminal offence from the police or any other agency. “Such things make the prosecution’s work more difficult,” Kajganic said.
‘He didn’t try to justify the crime’
In Kovacevic’s case, the prosecutors concluded that his statement that there was no genocide didn’t contain essential features of the offence of incitement to ethnic, racial and religious hatred, discord or intolerance “because he did not publicly approve of, deny or grossly diminish, or try to justify a crime”.
In its decision not to order an investigation, the prosecution said Kovacevic pointed out that he respected all victims of Srebrenica and expressed his personal opinion, which was not targeting anyone.
Ramic told the prosecutors that he was out of the country when Kovacevic made the statement and he had not discussed it with anyone, but the statement upset him and hurt him psychologically because his family members had been killed in the genocide.
However, the prosecution cited the fact that he was outside Bosnia and Herzegovina and had not discussed it with anyone as part of the explanation for not launching an investigation.
Ramic pointed out that he knows that Kovacevic’s statement “insulted everyone” even though he filed the report as an individual, and said he didn’t see why it mattered that he was out of the country. He made a complaint about the decision to not conduct an investigation, but he has never received a response.
Gacanica argued that the prosecutors failed to determine whether the alleged denial and glorification offences actually incited hatred and violence.
She said that in none of the cases did they consider the context in which the incident happened, or its consequences for a deeply ethnically-divided community in which subjective interpretations of crimes have often replaced judicially established facts.
“It is a truly alarming notion that it is enough just to say that you had no intention to offend anyone and that you sympathise with victims to establish that there are no elements of a criminal offence,” she added.
Kajganic said however that proving that people’s statements had real-life consequences has been a major problem for prosecutors. “So far, we have not had cases in which we have managed to do it,” he said.
The free speech defence
Lejla Gačanica. Foto: BIRN BiH
In four cases in which people reported for denial offences have been questioned, the prosecution based its decision not to conduct an investigation on statements by the perpetrators who argued that freedom of speech and opinion are guaranteed under the Bosnian constitution o ther European Convention on Human Rights.
Gacanica explained that a direct denial of a war crime was deemed a personal opinion by prosecutors.
“Worryingly, prosecutors interpret the freedom of speech and opinion so broadly and so contrary to the existing legal provisions, because what we have here are acts which literally meet several elements of a clearly and unambiguously proscribed criminal offence,” she said.
In July and August 2021, the prosecution received two emailed complaints about public appearances by Dodik, one which concerned the petition against the ban on genocide denial and the other an event at which genocide was repeatedly denied.
The prosecution checked the allegations and concluded there was no basis for initiating criminal proceedings against Dodik. It concluded that Dodik had the political right to launch a petition and hadn’t incited people to hatred, discord or intolerance.
But Gacanica argued that the prosecutors failed to take account of the broader context and the consequences the petition could produce. Following the High Representative’s decision to impose the denial ban in July 2021, Dodik launched a political blockade of state institutions and caused one of the deepest political crises in the country since the war, while continuing to say that he didn’t accept that the Srebrenica massacres were genocide.
Gacanica says that prosecutors didn’t observe the broader context in another case against Dodik’s adviser Kovacevic either. In this case Kovacevic was reported for denying genocide during an appearance on Federal TV.
While saying that he genuinely felt sorry for all victims, Kovacevic told the TV station that “the crime that happened in Srebrenica cannot be classified as genocide because it can in no way be compared with the crimes of genocide against the Serb people in the Independent State of Croatia [during World War II]… it cannot be compared with the crime of genocide or the Holocaust against the Jewish people, or the genocide which Turks, or in fact Turkey committed against Armenians [during World War I].”
Bosnian law says it is a punishable offence to grossly minimise genocide or other crimes, but the prosecution took the position that Kovacevic didn’t do this.
One of the reports filed about his comments on the TV programme said that they contributed to destablising people’s lives, adding that after the broadcast, several acquaintances asked him if there were going to be new “massacres, murders or armed conflicts”, fearing for themselves and their families’ safety.
The State Investigation and Protection Agency questioned Kovacevic, who said he had no intention of offending anyone’s feelings or inciting anyone to hurt anyone else’s, which the prosecution accepted as one of the arguments for not launching an investigation.
While saying he supports freedom of speech, Murat Tahirovic, the head of the Association of Genocide Victims and Witnesses, argued that there must be some limits.
“The moment it hurts the feelings of others, you must think about it, particularly if you represent or are involved in a public service,” Tahirovic said.
He argued that the authorities should protect war victims and sanction genocide and war crimes deniers.
A Twitter user who the prosecution also decided not to investigate for genocide denial in January 2022 used the same freedom of speech justification as Kovacevic.
The Twitter user argued there was not a single piece of evidence that his posts on the social media platform had incited anyone to hatred or violence, and that he had the right to express his agreement or disagreement with court verdicts and amendments to the law because the constitution of Bosnia and Herzegovina guarantees him such freedom.
Kajganic explained that it must be proven that any such statement “could lead to consequences”.
Gacanica said however that prosecutors have not yet “considered sufficiently” whether some restriction on freedom of expression would uphold the rights of certain groups to live without fear and violence.
Unidentified suspects on social media
The night before January 9, 2022, the day when Bosnian Serbs celebrate the anniversary of the founding of the country’s Serb-dominated Republika Srpska entity, a man phoned the Prijedor police to report that he had seen several young men flying a red, blue and white flag with the image of war criminal Ratko Mladic, who the Hague Tribunal sentenced to life in prison for the Srebrenica genocide and other wartime crimes.
The man said he felt uncomfortable but didn’t feel fear for his own safety. However, the police spoke to another man who said he did feel worried by the Mladic supporters’ gathering.
Police also spoke to Marinko Zdjelar, a member of the MC Serbs bikers club, whose members display neo-Nazi insignia but were unable to identify the people flying the flag glorifying Mladic, so no investigation was ordered.
“This is worrying, because there are a number of other indicators on the basis of which they could identify the perpetrators, particularly considering the fact that this was undoubtedly a criminal offence,” said Gacanica, explaining that an element of incitement to hate or violence is not required for proving the glorification of war criminals.
She added that in this case and several others, the prosecution appeared not to have taken into account the fear that was caused by the incident.
Chief prosecutor Kajganic said he was unable to comment on the specific case but said that if the prosecutor assigned to it did not receive evidence about the suspects’ identity, he had to take a decision based upon whatever information he or she had on file.
Kajganic also explained that only three state prosecutors are working on denial cases, and that they also have to deal with election fraud cases and the non-execution of constitutional court decisions. He argued that prosecutors couldn’t be sent all the way to Prijedor to question flag-waving youths.
“We simply don’t have that many personnel,” he added, arguing that this was police business.
In ten orders to not conduct investigations, the prosecution cited the inability to identify the plaintiff or alleged perpetrator as one of the reasons.
Two of the complaints to prosecutors concerned readers’ comments posted beneath articles on the Klix website. One claimed that for six years the site had not deleted comments in which an anonymous user was spreading “unprecedented hate and nationalism”.
However, after checking, the State Investigation and Protection Agency determined that the commenter had been banned. It received information about the individual from Klix, but didn’t check any further beyond determining that the IP address belonged to BH Telecom internet provider.
The prosecutors were unable to determine when the act was committed or who committed it, so decided to not conduct an investigation.
The editor of Klix, Semir Hambo, said that the site cooperates with security agencies over offensive comments, but it had received no direct request for help in determining the identity of commenters denying genocide or glorifying war criminals.
“We have not received such requests since we introduced a special section enabling readers to report genocide denial,” Hambo said.
In the months after the genocide denial ban was imposed in July 2021, reported incidents decreased. But Tahirovic said he is concerned that if no legal action is taken, the situation could deteriorate again.
“I’m afraid that if it continues with the same practice, the prosecution might end up bringing the entire law into ridicule and enabling the continuation of what we had before the passing of the law,” he said.