GENOCIDE DENIAL AS AN INTERNATIONAL CRIME

GENOCIDE DENIAL AS AN INTERNATIONAL CRIME

 

I

 

At the very beginning I would like to start with the mere concept of an international crime. One is the concept required by the international law and the second one is the concept required by the criminal law.

 

In international law:

An unlawful act to be an international crime must meet certain requirements:

1.      Act  should be unlawful;

2.      Act or work must be specified as such in an international convention;

3.      Characteristics / elements of the unlawful act must be determined in an international convention;

4.      Sanctions must be fully provided for such an act or work;

5.      International convention must be ratified by a determined number of countries;

6.      International convention must enter into legal force.

 

In criminal law:

There are basic elements that constitute a crime:

 

1.      Behavior that includes: human action, a result caused by human action, and causal connection;

2.      Social danger;

3.      Illegality;

4.      A determination of an act or work in legal regulations;

5.      Offender's culpability.

There is usual classification of international crimes into two types:

1. International crimes in the narrow sense (real or pure);
2. International crimes in general (mixed).

 

The first group comprises the international crimes that violate the laws or customs of war (norms of international humanitarian law and law of armed conflicts). Primarily, those are the crimes contained in the Nuremberg and Tokyo Judgement, which are completed in the Rome Statute of 1998 as follows: the crime of genocide, war crimes, crimes against humanity and the crime of aggression.

The second group includes the international crimes that violate other rules of international law. Those that international community wants to criminalize and penalize as such. Those crimes include: illicit traffic in narcotic drugs and nuclear materials, trafficking, arms trafficking, prostitution, pornography, cyber criminal, the acts against the safety of air traffic, etc.

Denial of genocide as such should be autonomous international crime, which means that the act: the denial of genocide must meet all the previously mentioned elements from the standpoint of international law as well as criminal law.

 

II

 

There are three types of countries in the world in terms of characterization of acts of genocide denial:

1. States that have enacted a special law prohibiting the denial of genocide and the Holocaust;
2. States which have prohibited the denial of genocide in their criminal law;
3. States which still have not criminalized the denial of genocide.

Denial of genocide as such is incriminated and sanctioned in some states in the international community in two ways:

1.      Special law that prohibits the denial of genocide;

2.      Within the existing criminal code, the genocide denial as a new crime is introduced.

 

However, at the level of the international community and the United Nations, there is no unique and adopted international convention that would at the international level criminalize the acts of genocide denial.

Potential problems for not having yet an international convention that would legally prohibit the acts of genocide denial at the international level most rightly lie in the facts:

1. Human rights and freedoms were guaranteed to all people in the world, especially freedom of thought and public expression;
2. Denial of genocide is still not recognized as something that represents an attack on the fundamental values of human society and the international community as such;
3. Denial of genocide has a very weak and limited adverse consequences;
4. What sanctions should be envisaged for this international crime;
5. Which international court should be competent or should have jurisdiction in terms of genocide denial;
6. What degree of criminal responsibility or culpability should be sought;
7. Who could be the perpetrator of acts: the individual or the state or both;
8. Lack of will and political obstructions (example of Bosnia and Herzegovina).

 

We suggest that the genocide denial would be an autonomous international crime that would be defined and adopted in the form of legally binding international convention within the auspices of the United Nations, namely by the UN General Assembly.

Also, the International Law Commission of the United Nations should be given the task by the UN General Assembly and UN Secretary General to undertake preparatory work and activities to have the draft convention finalized, and, furthermore, to be sent to the Member States of the United Nations for draft approval. In the end of this legislation process within the United Nations, an international conference would be organized at which official and the final text of the convention would be adopted.

Although, we are more than aware that such an intention at the international level will cause a very big debate, because some countries consider the freedom of expression untouchable. The pure example for this could be the United States. However, one should understand that human rights and freedoms might be very limited if it is in the interests of public health or morals, public order, rights and freedoms of others. The limitation of certain human rights and freedoms is provided by the European Convention on Human Rights and Fundamental Freedoms of 1950, and on the international basis, by the International Covenant on Civil and Political Rights of 1966.

 

 

 

III

 

The genocide denial could be interpreted in the following terms:

 

1. The object of protection would be: humanity, dignity of one group over which the genocide committed, and international law as such. (The object of protection of the crime of genocide denial is identical to the object of protection of the crime of genocide);
2. A target would be: a national, ethnical, racial or religious group as a collective, a community with its features and specifics. (The crime of genocide has the same target);
3. A perpetration action would be: a public denial of the crime of genocide which is determined by the final court verdict or by scientific empirical research and comprehension;
4. The result of the act would be: re-attack on a particular national, ethnical, racial or religious group as such. The essential element here is the term re-attack with different means, and it always comes after genocide is being committed;
5. A perpetrator of the crime of genocide denial could be any person;
6. In terms of culpability or guilt, the intent would be required – that is a deliberate, premeditated „public“ denial of genocide.

 

Court jurisdiction: working on amendments to the Rome Statute concerning the determination of court competence / jurisdiction in terms of the international crime of genocide denial might not be real, conductive or enforceable in the following period.

However, the best solution regarding the determination of a court jurisdiction would be that the international convention determines that the genocide denial falls under the universal jurisdiction in criminal matters under international law. This would mean that every criminal court of any country in the world, which ratifies the international convention may prosecute those responsible for this international crime (genocide denial), irrespective of time and place where this crime is committed. A Court criminal proceedings would be conducted on the basis of universal jurisdiction in criminal matters (Belgium is the example of a country that has universal jurisdiction in criminal matters), and, in the case of convicting verdict, the court could pronounce a criminal sanction upon the guilty person.

As the perpetrator of a crime may be any natural person. Also, international convention should provide provisions for the state responsibility in case of genocide denial where the state would correspond to the omission.

 

Criminalization of genocide denial in the European Union, generally speaking, has two models:

 

1.      Criminalization of the Holocaust denial and crimes against humanity committed during the Second World War;

2.      General criminalization of genocide denial regardless of the time and place of its commission.

 

IV

 

With regard to Bosnia and Herzegovina, before the ICJ Judgement in the case of Bosnia and Herzegovina vs. Serbia for the crime of genocide, there were no formal requests for the criminalization of genocide denial in Bosnia and Herzegovina. However, after February 2007,

the situation has been changing:

 

I – A member of the Parliamentary Assembly of Bosnia and Herzegovina on 24 May 2007 submitted a draft law on the criminalization of the genocide denial in Bosnia and Herzegovina, which would be a special law that would encompass the denial of the Holocaust, genocide and crimes against humanity). However, during the strong debate in the Parliamentary Assembly of Bosnia and Herzegovina it was established that a special law is not necessary. There was a suggested possibility that the Bosnian Criminal Code be amended in terms of genocide denial be included as a separate offense.

II - In April 2009 representatives of the Parliamentary Assembly of B&H submitted amendments to the Criminal Code of B&H. They suggested the criminalization of genocide denial.

III – On 5 November 2009 the Council of Ministers of Bosnia and Herzegovina accepted these amendments to include them in a package of necessary amendments sought by the European Union for visa liberalization, and that Bosnia and Herzegovina be put as a country to the Schengen white list.

 

IV - In January 2010, representatives of the Parliamentary Assembly of B&H belonging to the Alliance of Independent Social Democrats (SNSD) and Party Chairman Milorad Dodik, who currently serves as the President of the Republic of Srpska, were against the adoption of amendments to the Criminal Code of B&H.

 

It could be stated that one of the main reasons for the inability to B&H criminalizing genocide denial is the fact that in B&H there is no single consensus, or understanding, what actually happened in Bosnia and Herzegovina from 1992 to 1995.

Also, the internal structure of the legislative procedures in B&H prevents criminalization of genocide denial.

 

V

 

Ultimately, the legal prohibition of genocide denial has its own, generally speaking, the pro and contra arguments:

PRO arguments are:

1. Criminalization of genocide denial prevent further harm on victims and their    descendents;
2. In order to prevent future genocides;
3. To stop supporters of genocide and to give them no chance to conduct genocide in the future;
4. Symbolic function: denial activities could be reduced.

 

CONTRA arguments are:

1.      Limitation of freedom of expression (although this freedom is not absolute - it can be derrogated);

2.      Definition of denial (sometimes is very difficult to have genocide denial comprehensively defined);

3.      Legal Prosecution of genocide denialists could be contra-productive as they could have undeserved publicity.

 

VI

 

Possible future solutions in Bosnia and Herzegovina in terms of the genocide denial:

-          Opponents will continue with their opposition;

-          European Union (Parliament) must adopt a unique definition of genocide denial in order to Bosnia and Herzegovina accepts EU legislation.

-          In the next phase, the European Union must order Bosnia and Herzegovina to change its Penal Code legislation in order to adopt the criminalisation of genocide denial, following the EU legislation.

 

 

 

 

 

Mr. ENIS OMEROVIĆ, LL.B. LL.M. PhD candidate