Genocide Denial Laws As Heresy

"Genocide Denial" Laws as Secular Heresy: A Critical Analysis with Reference to Bosnia
Author(s): Robert M. Hayden

Source: Slavic Review, Vol. 67, No. 2 (Summer, 2008), pp. 384-407
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DISCUSSION
"Genocide
Denial"
as Secular
Laws
A Critical Analysis
with Reference
Heresy:
to Bosnia
M. Hayden
Robert
In early February
the Daily Telegraph reported
2007, the British newspaper
to
that Germany
would
the
Parliament
propose
legislation
European
measures
to
state
"each
member
shall
take
the
that
necessary
requiring
ensure
that the following
intentional
is punishable:
conduct
'publicly
or
crimes
of crimes of genocide,
condoning,
denying
grossly
trivialising
war
imme
and
crimes.'"1
The
Ottawa
Citizen
against
humanity
reported
thereafter
that
retired
under
such
Canadian
Major
diately
legislation,
the num
Lewis MacKenzie
General
face charges
for questioning
would
ac
to the paper, MacKenzie
bers killed at Srebrenica
in 1995. According
were
acts
that
thousands
the
killed
but
denies
that
constituted
knowledges
genocide.2
events
for criminalizing
This German
proposal
speech about historical
no
a
raises many
Deborah
and
less
scholar
than
issues,
troubling
genocide
on the issue of Holo
who won a legal case against David
Lipstadt,
Irving
came out
caust denial,
The
law is clearly con
it.3
firmly against
proposed
a
in
1985 criticism of the prosecution
International,
trary to what Amnesty
nationalists
of various
in what was then Yugoslavia,
and other dissidents
as "the non-violent
hu
described
exercise
of internationally
recognized
man
the right to freedom
The legisla
of expression."4
rights, in particular
on such
tion has been
criticized
But this
and passage
grounds,
delayed.5
Union
denial
is only
about genocide
(EU) legislation
proposed
European
one of a number
some of which
are in force and
of such laws in Europe,
to convict
have been used
of verbal crimes. A Turkish
people
politician,
was convicted
in Switzerland
for example,
in March
that
2007 for denying
even
the mass killings of Armenians
in 1915 constituted
though
genocide,
I am grateful
for the comments
of Jennifer
Bill Chase,
Noam
Cash,
Chomsky,
Ilya Pri
and
for
those
of
for
Slavic
several
reviewers
zel, Mark
anonymous
Steinberg,
especially
Review.
1. "EU Plans
'Genocide
Denial'
2 February
Law," Daily
Far-Reaching
Telegraph,
2007.
2. Ottawa
2 February
Citizen,
3. Daily
2 February
Telegraph,
4. Amnesty
International,
5. The
blog
of Deborah
to Outlaw
Lipstadt
Genocide
admitted
on
2007.
Yugoslavia:
Lipstadt,
29 May 2007 ("EU Legislation

Law
2007.
on Genocide
Denial
29 May
Prisoners
"History
Defeated"),
2007,
premature.
of Conscience
on Trial,"
covered
9-10.
(London,
1985),
the issue: see entries
the latter pronouncement

though
See lipstadt.blogspot.com
(last
22 February 2008).
Slavic
Review
67', no.
(Summer
for
Denial: Still in Flux") and 23 April 2007 ("EU
2008)

as
was,
consulted
"Genocide Denial"
385
as Secular Heresy
Laws
con
took place.6 Others
have been
he had acknowledged
that massacres
in Austria
the reality of the Holocaust.
victed
and France
for denying
In Europe,
overall by the European
Conven
such cases are governed
of
that
has
tion on Human
Article
which
10(1)
provides
"Everyone
Rights,
to
of expression.
This right shall include
freedom
the right to freedom
hold opinions
and to receive
and impart
information
and ideas without
of frontiers."
This
interference
and regardless
right,
by public
authority
states
is qualified
Article
that
"The
exercise
of
which
however,
10(2),
by
these freedoms,
since it carries with
it duties and responsibilities,
be
may
or
as are pre
restrictions
conditions,
subject to such formalities,
penalties
in a democratic
in the interests
scribed by law and are necessary
society,
or
of national
territorial
for
the preven
security,
integrity
public
safety,
or crime, for the
or morals."
of
tion of disorder
health
Further,
protection
in this Convention
Article
that "Nothing
17 provides
be
may
interpreted
as
or person
in any ac
for any State, group
any right to engage
implying
or
act
at
aimed
the
of
of
the
destruction
any
any
tivity
perform
rights and
or at their limitation
set forth herein
to a greater
extent
freedoms
than
is provided
for in the Convention."
Taken
Articles
and
10(2)
together,
on the
for imposing
restrictions
17 provide mechanisms
otherwise
rights
10(1).
guaranteed
by Article
states may
A provision
in the proposed
legislation
saying that "member
a manner
to
out
is
in
choose
conduct
either
which
carried
punish
only
or insult
order or which
is threatening,
abusive
likely to disturb
public
since it would
increase
the vagueness
ing" is hardly
reassuring,
actually
that Amnesty
International
of
in 1985: that
and uncertainty
complained
the "verbal delict"
sections
of socialist Yugoslavia's
criminal
law rested on
"the vague formulation
of legal provisions
enables
them to be ap
which
so as to
for
the
of
non-violent
exercise
their human
plied
penalize
people
states would
the
of
the
EU
be
By
language
proposed
legislation,
rights."7
to criminalize
verbal actions
that are not likely to
nonviolent,
empowered
or
order and are not "threatening,
in
disturb
abusive,
public
insulting";
are
on
to be more
to do so, but given the option
called
deed,
they actually
in their approach.
This call to criminalize
verbal
or
are not
abusive,
threatening,
limited
denial"
resemble
closely
legislation
acts
that do not disturb public

the proposed
insulting makes
two
other
regimes
of
order
and
"genocide
criminalization
of
to Yugoslavia,
in modern
in regard
Europe. As already mentioned
speech
the states of what was then "actually existing
socialism"
had similar prohi
on
of the socialist order,
bitions
critical of key elements
and this
speech
out some of the similarities
to justify
in the language
article points
used
some verbal actions
denial
laws and those criminalizing
under
genocide
on
state socialism.
to
rest
of
efforts
both
these
criminalize
Further,
speech
6.
"Turkish
(last
.org/eng
7. Council
Politician
over
Fined
Genocide
Denial,"
9 March
2007,
at www.swissinfo
consulted
of
22 February
2008).
the European
2794th
Union,
"Council
19-20
2007,
April
fairs, Luxembourg,
ism and Xenophobia,"
added.
(EN). Emphasis
Council
Amnesty
of
the European
International,
Af
and Home
meeting,
Justice
on
Decision
Rac
Combating
Union
Press Release
8364/07
(Presse
77)
10.
Yugoslavia,
Council
Framework

386
Slavic Review
to those used
as a criminal
to justify
similar
justifications
treating heresy
state
courts
in Brit
rather
than
ones,
offence,
punishable
by
just religious
ain and the United
States from the late eighteenth
until the early twenti
eth centuries.
It is due to these similarities
denial"
that I analyze
"genocide
to
laws as efforts
secular
punish
heresy.
the concept
of heresy
is derived
dis
from religious
Though
originally
as "a doctrine,
or set of
the term has wider meaning,
course,
opinion
at variance
or
with established
received
views or doc
opinions
generally
to
trines."8 I see criminalization
of such unorthodox
views as an attempt
are
as
so
held
doctrines
that
protect
deeply
widely
regarded
important
that challenging
them should be a punishable
The whole
offense.
point
of criminalizing
the presentation
of a point of view is to prevent
anyone
from considering
that some elements
of it might
be true, and so defin
as
all
forms
of
criticism
be
the
clearest
indication
may
ing
illegitimate
a heretical
to
that the ban involves heresy. Were
be
true, the
challenge
to
that
belief
would
have
and
thus
the
fall,
system
impugned
possibility
a
true
is
be
Reli
with
the
itself.
very concept
heresy might
incompatible
cannot
to an empirical
since
gious heresy
question,
logically be reduced
God's
truth is not testable empirically.
Genocide
denial
claims could often
as
at least in
be treated,
but criminalizing
principle,
empirical
questions,
of genocide
the denial
is aimed at preventing
that
empirical
investigation
counter
would
of
the officialized
truth; that is, after all, the very essence
the
crime.
of the concept
of genocide
is that it is being
denial
striking feature
to justify
to freedom
of
of
the
fundamental
infringement
right
cen
in
to
societies
that
otherwise
claim
make
human
expression
rights
can be made
even in cases
tral to their ideology.
Since
this infringement
to the classic
when
there is no threat to public order,
it is not comparable
of
in
of
free
the
United
States,
example
justifiable
infringement
speech
that freedom
of speech does not cover "falsely calling fire in a theatre," or
same
to public
the creation
of a "clear and present
order.9 The
danger"
to
violation
of
fundamental
what
would
otherwise
be
capacity
justify
prin
cen
action was, until the twentieth
social or political
ciples of legitimate
as a secular
was
of
the
since
it
tury, exhibited
concept
by
heresy,
punished
states. One
one, in self-consciously
crime, not a religious
secular, modern
is reminded
of Kenneth
Burke's
"God terms," those key concepts
that can
as ultimate
be invoked
values
that stop further discussion
and that need
as a God term for economists.10
not be deistic: money,
If God
for example,
terms need not be deistic,
neither must heresy.
are not abstract
These
that can have real con
issues, but rather ones
not
for
deniers
of
the
Turkish
of
the
Holocaust,
sequences,
only
reality
massacres
who
that
the
1915
of
Armenians
constituted
politicians
deny
to
and Canadian
unwise
their
genocide,
generals
enough
speak about
in
missions
in
scholars
the
but
also
for
Balkans,
experiences
peacemaking
invoked
8. Webster's
2d ed.
Dictionary,
unabridged,
Twentieth-Century
v. United
47 (1919).
States, 249 U.S.
10. Kenneth
A Grammar
Burke,
(1945; Berkeley,
1969).
ofMotives
9.
Schenck

"Genocide DeniaV
Laws
as Secular
Heresy
387
to understand
the facts, causes,
and others who
take seriously
the need
and meanings
of instances
of mass
that
are,
genocide,
arguably,
killings
or at least dis
the nature
because
of "genocide
denial"
laws is to prevent,
to show the
In order
from taking place.
the argument
courage
strongly,
a sustained
nature
makes
of
this
article
these
laws,
potentially
oppressive
for
Criminal
Tribunal
critical analysis of the findings
of the International
Krstic
that
the Former Yugoslavia
Radislav
(ICTY) in the case of General
in Srebrenica
of Bosniaks
Serb forces
in July
the mass killings
by Bosnian
EU
Since
the
calls
for
1995 constituted
genocide.
legislation
proposed
acts
the
of
when
been
denial
have
recog
criminalizing
genocide
specific
nized as such by a competent
international
court, if that legislation
passes,
to Srebrenica
term
to
the
of
the
seems,
facie,
denying
applicability
prima
a criminal
act.
constitute
some discomfort
It is thus with
that I do exactly
that, by questioning
It ismy contention
the ICTY decision.
that the finding
that the Srebren
ica massacre
distorts
the definition
of the term by
constituted
genocide
it so broad
of uniform
If
that it loses the possibility
making
application.
is true, however,
the concept
of criminalizing
this contention
"genocide
to
of free speech
denial" not only becomes
and intel
contrary
principles
lectual
the same problem
that Amnesty
Inter
inquiry but also manifests
in its reports
national
identified
of the
twenty years ago on the vagueness
of the criminal
"verbal crimes" provisions
laws of the former Yugoslavia,
it possible
for them to be applied
for politically
which made
motivated
reasons
to punish
of human
exercise
the legitimate
rights and freedoms.
An Inherently
Provocative
The Issue of "Genocide"
Case Study:
in Bosnia
unavoidable
that this case study be provocative.
Bosnia was
in violation
the site of major
hu
crimes
of international
unquestionably
mass
manitarian
the site of the single
law, and Srebrenica
largest
killing
in Europe
since the 1940s. As such, they have become
emblematic
of the
new means
to develop
felt by many
need
of punishing
such crimes. To
whether
took place must
therefore
be provocative
"genocide"
question
to those who
be questioned.
that that supposed
fact cannot
truly believe
to
such a seemingly
But it is precisely
well-settled
situation
that is needed
to make
show the fallacy of attempting
decision
immune
from
any judicial
It is probably
challenge.
nature
The
of the case study makes
discussion
inherently
provocative
one
as
of it difficult,
for
however.
referee
this
Indeed,
journal
bluntly
of this paper
that the first version
constituted
denial"
serted
"genocide
and was "brilliant and vicious," without
any of my arguments.
addressing
a scholarly
one faces
but indicative
of the problem
Not exactly
critique,
in even discussing
from
these issues. The word genocide, a term stemming
its unquestionably
the Holocaust
and invoking
well-documented
horrors,
connotes
than other war crimes and mass killings.
evil, more
exceptional
has occurred,
that
To those who firmly believe
that genocide
questioning
even a "vicious," act.
is an immoral,
belief
perhaps

388
Slavic Review
to state up front that my

It is necessary
is not to the facts of
challenge
as determined
at Srebrenica
the mass killings
the
ICTY, or to the crimi
by
as
to
of
In arguing
those
but
rather
them
acts,
nality
labeling
"genocide."
what will be a controversial
the
this
first
discusses
article
case,
magnitude
at Srebrenica,
of the mass
the figures
put forth by the
killing
accepting
in scientific
that
ICTYs experts
from Sarajevo
articles and a study directed
no
states.
has been
that
is
There
several
by
European
question
supported
were guilty
were criminal
at Srebrenica
the killings
and their perpetrators
of a number
ICTY:
of serious
crimes punishable
the
extermination,
by
to name other crimes of
and inhumane
murder,
treatment,
persecution,
which General
Krstic was convicted.
The
issue is simply the applicability
of the term genocide.
A Necessarily
Provocative
Analytical
Framework:
Secular
Heresy
of the term heresy to cover genocide

invocation
denial
laws, equating
in concepts
those in
this purpose
such as human
beliefs
rights with
as stated
seems
to
Yet
the tenets of deistic
also
be
religions,
provocative.
to Kenneth
reference
above with
Burke's
"God terms" and the diction
is comparable
of heresy
and in more
detail below, what
ary definition
denial
and
the "verbal
between
heresy,
religious
genocide
prohibitions,
state socialism
with
of criticizing
is that they are all concerned
delicts"
I
to the just ordering
of society.
essential
considered
beliefs
protecting
and
and
these
belabor
this point because
references,
arguments
despite
or even
of an ear
indeed without
them, one reviewer
noting
discussing
from
of
medieval
lier version
the
heresy
"arguing
questioned
applicability
and dogma,"
that I was not doing
that, and
argument
despite my explicit
that the
of heresy
I ignore
that by invoking
the concept
another
asserted
in
serious
favor
and
had
their
denial
laws
"serious
arguments
genocide
no doubt
it is ir
is
those
this
behind
true,
arguments."
Although
people
of the
criticisms
and
relevant: many of those who banned
heresy
religious
were serious
serious
state
of
socialism
arguments.
premises
people making
Or at least, they thought
that they were. The point
is that those who would
of state
criticisms
criminalize
like those who criminalized
denial,
genocide
her
of religious
the promulgation
socialism
and those who criminalized
to
even
their
similar
used
similar
and
esy,
very
justify
wording,
reasoning,
My
for
actions.
term:
I use the term heresy not as a metaphor
but rather as an analytical
to criminalize
efforts
that encompasses
this is the larger concept
speech
or belief
that questions
basic tenets of an ideological
system, such as inter
or denial
of the term
nal criticisms
of state socialism,
of the applicability
some mass
a
to
in
make
for
that
central
crimes,
system
purports
genocide
as reviewers
have
the protection
of human
If
this
is
rights.
"provocative,"
seems necessary
to
of
force
consideration
the
complained,
provocation
on
the similarities
between
these efforts at criminalizing
political
speech
to those who
think
The comparison
may well cause discomfort
grounds.
same
are
to protect
to
not
the
that efforts
secular belief
systems
subject
as deistic ones, but that is an
forms of criticism
that
this
article
assumption

"Genocide Denial"
Laws
to bring
into question
is meant
which we now turn.
in a Secular
Heresy
389
as Secular Heresy
with
of
the concept
"secular
heresy,"
to
Europe
linked to religion,
is generally
of criminal
act, heresy
espe
in English
and American
of years,
Yet
for
hundreds
cially Christianity.11
some of
in terms of denying
law, at least, while
heresy has been defined
has been justi
its criminalization
of Christianity,
doctrines
the essential
to protect
but rather on the need
fied, not on theological
public
grounds,
in the classic eighteenth-century
Thus
and the bases of morality.
order
it clear that while
made
Blackstone
statement
of English
law, Sir William
as denials
of
should
to punish
and
the decision
religion
apostasy
heresy
criminal
of
in
the
ecclesiastical
realm
remain
courts,
penalties
exclusively
were
the
because
to three years imprisonment
justified
by the state of up
cor
of
to "destroy all moral
those
acts threaten
principles
obligation,"
almost
rect action upon which
relies, because
everyone
society ultimately
cases from the nineteenth
and
and British
in them.12 American
believes
same position
it by say
and extended
the
took
centuries
twentieth
early
was
on the
for verbally denying
justified
Christianity
ing that punishment
of the people
and thus
beliefs of the majority
it
the
that
offended
grounds
was that verbal
the public peace.13 By 1883, the law in England
threatened
as crimes
if
could only be punished
of the tenets of Christianity
denials
intent to insult others.14
there was malicious
are secular,
to be punished
since
for permitting
These
heresy
grounds
doctrine
but the
is at stake is not the truth of any specific Christian
what
since the vast majority
of these truths may spark violence
risk that denial
one
true religion.
to
Thus
the
be
believe
of the population
Christianity
is pronounced
it challenges
belief
because
the
is
system
heresy
punishable
to the maintenance
of social order.
central
that "endanger
and writings
the social or
We may recall that speech
eastern
state socialism
in
and that
under
der" were prohibited
Europe
were
on such
such as Am
cited by organizations
grounds
prosecutions
case of
as
In the specific
of human
violations
International
rights.
nesty
code prohibited
114 of the federal
criminal
Article
socialist Yugoslavia,
class
of the working
to curtail or overthrow
the authority
acts "intended
. . .
and unity or de
and working
up the brotherhood
breaking
people
A
of Yugoslavia."15
and nationalities
of the nations
the equality
stroying
at
the
the
of
the
government
by
Yugoslav
provided
justification
large part
International
"hate speech." Amnesty
time was that they were punishing
severe in Bos
of speech was most
that repression
in its 1985 report
noted
As
a category
11.
Moses
12. William
bk.
W. Levy,
1993).
(New York,
Commentaries
Blackstone,
See generally
to Salman Rushdie
Leonard
4, p. 44.
4, chap.
413.
13. Levy, Blasphemy,
14. Ibid., 486-87.
in Amnesty
15. Quoted
International,
Blasphemy:
on the Laws
Yugoslavia,
Verbal
Offense
of England,
against
9th
ed.
34.

the Sacred,
(London,
From
1783),
390
Slavic Review
nia and Herzegovina

and also that the government
referred
"frequently
to the bloodshed
of that period
War
communal
World
"bitter
IPs
[that is,
as a
for repressive measures."16
Inter
But Amnesty
fighting"]
justification
national
not
did
that
since
it
fourteen
accept
clearly
argument,
adopted
of conscience"
from among
those so persecuted.
"prisoners
It is, however,
the same kind of reasoning
that lies behind
very much
recent
to
criminalize
denial."
The
attempts
"genocide
proposed
legisla
as an attempt
tion is justified
to prohibit
racism and xenophobia.
A similar
on
for "the criminalisation
of acts of
regulation
"Cybercrimes,"
providing
a racist and
nature
committed
xenophobic
computer
through
systems,"
a clear statement
of the centrality
of the ideology underlying
the
provides
rules: that "acts of a racist and
a
nature
constitute
violation
xenophobic
a threat to the rule of law and democratic
of human
rights and
stability."
even
this regulation
that "freedom
of expres
Thus,
though
recognizes
one of the essential
sion constitutes
foundations
of a democratic
society,
and is one of the basic conditions
for its progress
and for the develop
ment
of every human
of this core democratic
value
being,"
application
must
be denied
when
communication
involves
"racist and xenophobic
propaganda."17
A principle
one is infe
that must
fall upon
the invocation
of another
to the latter, so this
means
that
the
phrasing
achieving
goal of fighting
racism and xenophobia
to
is superior
usu
mechanisms
the
protecting
as
a
for
democratic
necessary
ally regarded
maintaining
society. Clearly,
of genocide
denial
sanctifies
the beliefs
then, criminalization
challenged
as the true core values
the stability of
by racism and xenophobia
ensuring
the social order of modern
I say "sanctifies"
because
while
these
Europe.
in the sense of not being grounded
es
values are secular,
in
the
directly
as
tablished
core
orders
of
function
moral
values
religious
Europe,
they
in the same way that the
doctrines
of the period did when heresy
religious
was criminalized
on
Of course,
it is not necessary
nonreligious
grounds.
to define
a
in
terms
of
belief
in
and
"religion"
power,
solely
supernatural
Emile Durkheim's
as
seems
view of religion
itself
ap
society celebrating
here.18
plicable
denial
Genocide
differs from other proscribed
in that
"hate speech"
as a criminal
it is defined
in all contexts,
offense
other verbal hate
while
crimes are defined
in terms of contexts
that are especially
Ac
dangerous.
the Cybercrimes
convention
the Council
of Europe
had
tually, in adopting
earlier
called for criminalization
of certain
forms of speech,
and specifi
the
of
the EU pro
denial, without
cally of genocide
controversy
attracting
to be criminalized
of Europe
posal. The electronic
speech
by the Council
includes
"Dissemination
of racist and xenophobic
com
material
through
with
"racist
and
material"
defined
(Article 3)
puter
systems"
xenophobic
as
of ideas
any image or any other
"any written material,
representation
rior
16.
17.
Ibid., 27-28.
Council
of
Europe,
the Criminalisation
concerning
through
consulted
18.
Computer
Systems,"
22 February
2008).
Protocol
"Additional
of Acts
28 January
of
a Racist
2003
at
to
and
the
on
Convention
Xenophobic
Nature
http://conventions.coe.int/Treaty/
Ibid.

Cybercrime,
Committed
(last
"Genocide Denial"
Laws
391
as Secular Heresy
or incites hatred,
or theories,
discrimination
which
advocates,
promotes
or group of individuals,
or violence,
based on race,
individual
any
against
or national
or ethnic
as well as
if used
descent
colour,
origin,
religion
as a pretext
to be criminalized
for any of these factors"
(Article 2). Also
is the making
of a "racist and xenophobic
threat"
motivated
(Article 4),
or a "racist and
motivated
insult"
(Article
5).
xenophobic
Prohibiting
and "inciting" hatred
"insults," and "promoting,"
"threats,"
"advocating,"
or violence
of preventing
violent
social
may be seen as a rational means
seems of a different
conflict.
"Genocide
denial"
nature,
(Article 6), though,
or otherwise
a
since it criminalizes
available,
"distributing
making
through
which
denies,
minimises,
computer
system to the public, material
grossly
or
or crimes
acts constituting
approves
justifies
genocide
against human
These
and
ity."
actions?denying,
minimizing,
approving,
justifying?are
an immediate
not linked to circumstances
in which
the action might
spark
are to be criminalized
even in contexts
threat to social peace.
Instead
they
serve to advocate,
in which
there is no danger
that they could
incite, or
or threaten
are
not
and
in terms
violence,
promote
anybody,
they
phrased
or racism. The draft EU
of hatred
in
states
that
proposal,
specifying
"may
to punish
choose
out in a manner
which
is either
carried
only conduct
or which
to disturb
is threatening,
abusive or insulting"
likely
public order
is instructive:
to
added),
they may also choose
(emphasis
speech
punish
or
or a threat to
that is not threatening,
abusive,
insulting
public order.
seem
human
in a dilemma,
Major
sup
rights organizations
caught
in
of speech but also supporting
freedom
porting,
principle,
prosecution
concerns
to express
of "hate speech." Amnesty
International
continues
some
about the potential
to violate
of
kinds of genocide
denial
legislation
the right of free speech.
In October
International
issued a
2006, Amnesty
statement
the
the
French National
of a
by
criticizing
adoption
Assembly
massacres
bill that would make
it a crime to contest
the
that
of Armenians
a
in 1915 constituted
in Turkey
since "the proposed
law has the
genocide,
mas
effect of criminalising
those who question
whether
the Armenian
a
sacres constituted
matter
of
than
genocide?a
legal opinion?rather
or not the
matter
whether
of fact."19 On
occurred?a
the other
killings
site shows no expression
International's
web
of concern
hand, Amnesty
a Turkish
in
that Switzerland
did exactly
that
2007, convicting
February
man
for denying
even
that the 1915 massacres
constituted
"genocide"
massacres
he
that
took
A
month
after
though
acknowledged
place.20
on "Racism and Discrimination
as
that conviction
another
press release
Human
states
to
Problems"
for
called
EU
member
Europe's
Key
Rights
. .hate
across
effective
the
while
EU,
against.
protection
"provide
speech
of expression."21
freedom
safeguarding
some concern
Human
for its part, has expressed
about
Rights Watch,
19.
France
tober
Amnesty
to Protect
Statement:
"France:
Public
International,
AI Index:
Freedom
of Expression,"
EUR
International
Amnesty
21/009/2006
Urges
18 Oc
(Public),
2006.
20.
21.
Europe's
2007.
"Turkish
Politician
International
Amnesty
Key Human
Rights
over
Fined
EU
Genocide
Office
Problem,"
Press
AI
Denial,"
Release,
Index:
IOR
9 March
"Racism
61/010/2007
2007.
and
Discrimination
(Public),

21 March
392
Slavic Review
the dangers
of criminalizing
"hate speech"
and
denial,"
yet
"genocide
seems to be
in
the
end
unlike
though he
King Solomon
willing
(probably
was not,
to split the baby: "Genocide
put to the test) actually
ultimately,
deniers
should be marginalized,
and even subject to other forms of sanc
to incar
tion where
they cause real harm, but they should not be subject
to
amount
to
ceration
where
their
actions
incitement
violence."22
except
re
or of "other forms of sanction"
The mechanisms
of "marginalization"
as does
of
main
the
"real
harm,"
concept
raising problems
unspecified,
of
vagueness.
and Human
International
The difficulty
faced by both Amnesty
Rights
an organization
that
is in keeping with the unremarked
Watch
incongruity
a
to prosecute
is running
called Amnesty
International
people
"campaign"
war crimes,
and "crimes against
accused
of genocide
torture,
humanity,
to support
and specifically
and disappearances"
executions
extra-judicial
that defines
such as the ICTY. If an organization
tribunals
international
of human
the impartial
itself as being
"concerned
protection
solely with
not
it
that
is willing
it
should
be
prosecutors,
surprising
rights" supports
of the
to accept a ban on any criticism of the philosophical
underpinnings
prosecutions.23
sense if one accepts

that genocide,
for genocide
denial makes
Liability
is the
as the ultimate
of racism and xenophobia,
manifestation
actually
to define
Euro
said
to
moral
the
currently
greatest
principles
challenge
rac
makes
the possibility
of genocide
pean civilization.
By this reasoning,
to "the rule of law and democratic
ist and xenophobic
threatening
speech
concern
to the recipient,
than being of purely personal
stability," rather
a local community.
It is, af
to the peace
of
and possibly
only
threatening
the suppression
that justifies
ter all, this threat to the general
social order
be essential
democratic
otherwise
of what would
rights. But if the risk of
to the democratic
is as
order
threat
is
the
remote,
occurring
genocide
much
less
for censoring
hate speech becomes
well, and so the justification
that
I think, that the occasional
It
is
for
this
reason,
finding
compelling.
the
for justifying
condition
is actually a necessary
has occurred
"genocide"
is thus not criminalized
denial"
"Genocide
of
"hate
speech."
suppression
the
it threatens
but because
it actually
threatens
because
order,
public
social
and
moral
the
hate
that
general
speech
endangers
presumption
order.
take
has not taken place or cannot
is not to say that genocide
This
so sacred that
to
is
of
the
but
genocide
only
question
explain why
place,
forms of heresy,
it is
not only is its denial
but, as with other
punishable,
to facts
to
the
defend
definition
referring
against
charge by
impossible
by
since the
to the established
that would
the challenge
doctrine,
support
denial.
to do so would
itself constitute
the crime of genocide
very attempt
us
to
the
not
understand
is
in thought
control
Yet this exercise
help
likely
22.
Human
2007
Report
at
Rights
Watch,
"Genocide
Denial:
or Hate
Incitement
(last
www.hrw.org/wr2k7/essays/shrinking/4.htm
consulted
World
Speech?"
22 February
2008).
23.
web.amnesty.org/en/international-justice
(last
consulted
22 February

2008).
"Genocide Denial"
Laws
393
as Secular
Heresy
causes
of mass killings
in the modern
In fact, the contrary
world.
is true.
out
cases
some
worst
of
forms
of
of
the
By ruling
empirical
investigation
of mass killing
in recent history,
of "genocide
the criminalization
denial"
can only
our
of the nature
of the crimes.
impede
understanding
Courts,
and Meaning
Facts,
seem extreme,
sentence
the European
Court
of Human
to
with
that
there is a
stated,
denial,
Rights
specific
genocide
regard
as the Holocaust?
of
established
facts?such
historical
clearly
"category
or revision would
be removed
from the protection
of Ar
whose
negation
ticle 10 by Article
then become
17."24 The question
would
how a "histori
cal fact" should become
Genocide
denial
"clearly established."
legislation
to conform
of
written
the
Council
with
proposed
by
specifically
Europe,
seems
of this European
the provisions
Court of Human
decision,
Rights
to answer
this in a rational
and indeed
way: "acts constitut
indisputable
or crimes
as defined
law
ing genocide
against humanity,
by international
as such
final
of
International
and recognized
and
decisions
the
binding
by
of 8 August
1945
established
Tribunal,
Military
by the London
Agreement
or of any other international
court established
[the Nuremberg
Tribunal],
of the ICTY and the
international
Decisions
instruments."25
by relevant
Court of Justice
International
would
(ICJ)
clearly qualify.
of the U.S. Supreme
Court once quipped
that
Justice Robert Jackson
we are infallible,
he and his colleagues
"are not final because
but we are
we are final." And while
courts do indeed make
infallible
only because
in regard to the matters
in front of them, the adversarial
final dispositions
for making
unsuited
reliable determi
process used in courts is notoriously
nations
of fact. Were
it otherwise,
would
be conducted
scientific
progress
constant
of
rather
than
the
via adversarial
process
through
proceedings
no ap
be
final
because
there
is
ideas.
International
tribunals
may
testing
are any more
not mean
that their decisions
peal from them, but this does
or accurate
reliable
than those of any other court.
Lest
the
last
has
Differences
the varying
and
skills of advocates,
presented,
to
As
lead
decisions.
shown
inevitably
differing
benches
of the same court, may
courts, and even different
so that a
on whether
took place,
decisions
"genocide"
give contradictory
even
to
Yet
if
is a
be
hard
isolate.
there
may
opinion
single authoritative
on
or reli
no guarantee
that
it
is
based
there
is
complete
single opinion,
in law and social
It has long been a stable of the literature
able evidence.
in
is
between
science
that the formal
parties
legal proceedings
equality
over
substantial
and that some litigants
often a fiction,
advantages
enjoy
in a number
of cases
In particular,
involved
their adversaries.26
parties
same
sets
of
issues
have
with
the
substantial,
sys
dealing
("repeat players")
the predilections
below, different
24.
Case
ofLehideux
23 September
25.
Council
26. Marc
Legal
Change,"
in evidence
of judges
and Isorni
v. France,
1998 (55/1997/839/1045),
European
Court
of Human
Rights,
Judgment,
para. 47.
of Europe,
Protocol."
"Additional
Out Ahead:
Galanter,
"Why the 'Haves' Come
Speculations
1 (Autumn
95.
Law and Society Review
9, no.
1974):

on
the Limits
of
394
Slavic Review
over
whose
sole interest
is in the single case
opponents
advantages
is a
between
them
In
the
ICTY, the prosecutor
("one-shotters").
litigated
resources
over
far
command
repeat player par excellence,
greater
having
of money,
and political
connections
than do defense
attorneys.
personnel,
at
Few of the latter have participated
in more
than one case, and defense
are
a
event
to
in
have
less
than
the
any
strategy
torneys
likely
prosecution
cases and in fact are
the disparate
barred
connecting
ethically
probably
so. For
from doing
can
do
with
while
and
prosecutors
example,
negotiate
a
"small fish" to get their testimony
defense
attorney
against
"big fish,"
who would
sacrifice
the interests of one client in favor of those of another
can
be acting unethically.
would
Prosecutors
bring strings of coordinated
cases all aimed
at
that
defendants
establishing
point,
against
single-shot
and their lawyers who may have neither
the personal
interest nor the insti
a
tutional or economic
to counter
them. For this reason,
capacity
finding
case may well reflect
in a particular
of "genocide"
the
ability of the
only
resources
to bring superior
to bear in the proceedings
and to
prosecution
cases
not
to
in
defense
ways
open
attorneys.
manipulate
strategically
a court decision
to be final, however,
The ultimate
flaw in proclaiming
is that the question
of whether
took place is not one of fact but
"genocide"
a set of facts taken to have been
to
of the meaning
The
assigned
proved.
fundamental
difference
is that a question
between
these two enterprises
on the basis of
of fact can in principle
be determined
evidence
empirical
were
at
how
killed
the
while
(for example,
Srebrenica?),
many
assignment
to facts thus established
can have no
of meaning
referent
(for
empirical
how many must be killed, under what circumstances,
for "geno
example,
cide" to be said to have occurred).
Tzvetan
Todorov
puts the matter well:
are constructed
"facts can be right or wrong,
but meanings
by the writing
and
A
be
that
untenable,
may change.
may
subject,
given
interpretation
no
it
at
be
there
is
but
of
absolute
truthfulness
the
is, may
refuted,
degree
other
end of the scale."27 Genocide
denial
laws treat questions
of mean
as
of fact, a logical error that is also an attempt
to freeze
ing
questions
an
at
is
over the
This
least
without
control
total
task,
history.
impossible
and
of
dissemination
social
A
critical
discussion
of
memory.
production
a case
of genocide
the findings
in Bosnia
to
the
support
provides
study
temic
above
The
arguments.
Factual
1992-95,
Context:
Numbers
of Dead
and at Srebrenica,
July 1995
in Bosnia,
as soon
as the war
in Bosnia,
in 1992, high numbers
of dead
began
a
on
At
of
the
U.S.
and
Commission
Co
reported.
hearing
Security
on
in
"War
Crimes
and
the
Humanitarian
Crisis
(CSCE)
operation
Europe
on 25
in the former Yugoslavia"
1993, Congressman
January
Christopher
Smith noted
that a few weeks
President
earlier, Bosnian
Alija Izetbegovic
Almost
were
27.
Bellos
History
Tzvetan
Todorov,
(Princeton,
(Minneapolis,
2003),
and Memory:
Lessons from
Hope
123; see also Tzvetan
Todorov,
the Twentieth
trans.
"Fictions
Morals
Century,
and Truths,"
1995).

David
and
"Genocide Denial"
Laws
395
as Secular
Heresy
stated that more

than 200,000
had been killed and that 70,000 were
on 4 February
a CSCE hearing
in
held
At
detention
1993,
being
camps.28
and
Minister
Haris
the
Bosnian
200,000
figure,
Foreign
Silajdzic
repeated
a
of
House
the
At
U.S.
thereafter.
that figure was widely
hearing
accepted
on 18 October
of De
International
Relations
Committee
1995, Secretary
more
had
been
said
that
than
fense William
200,000
killed;
people
Perry
on
Committee
before
the U.S. Senate Armed
Services
but at a hearing
ci
7 June
130,000
1995, Perry had stated that, in 1992, there were about
on the other hand,
in an
in Bosnia.
Richard
vilian casualties
Holbrooke,
had
on the tenth anniversary

raised the
of the Dayton Agreements,
to keep
to the 200,000
to
accounts
tended
News
dead.29
300,000
figure
as
as 18 December
2005 in the New York Times.30
recently
figure, used
the war varied
of casualties
made
researchers
Estimates
during
by
or individual
researchers
within
Bosnia
from
institutions
widely.
Figures
a low of 156,824
to a high of 329,000.
Those
from
and Croatia
ranged
to 60,000
from 25,000
from outside
somewhat
Bosnia were
lower, ranging
to 200,000
officer George
Kenney
by Chicago
by former State Department
Cherif Bassiouni.31
law professor
and Jakub Bijak, working
After
the war, demographers
Ewa Tabeau
as experts
in the ICTY, drew on a variety
for the Office
of the Prosecutor
to arrive at an estimated
casual
total of 102,621 war-related
of sources
casualties
from 1992 to 1995.32 Of known
ties in Bosnia-Herzegovina
(as
were
to estimates),
Muslims
called
Bos
68.6
percent
(officially
opposed
18.8 percent
niaks after 1994),
Croats, with 47,360
Serbs, and 8.3 percent
to be military
civilian. They noted,
how
and 55,261
estimated
casualties,
were
least
the
from Republika
ever, that their figures
complete
Srpska
and reliable.
center
research
the director
of a nongovermental
Mirsad
Tokaca,
to
a number
western
the
initial
of
governments,
responded
by
supported
in an interview
in the main
Sara
and Bijak's findings
of Tabeau
release
in
was headlined
of victims
"The total number
that
jevo daily, Oslobodjenje,
"33
evidence
The exclamation
B&H was less than 150,000!
point provides
In a Reu
wisdom.
this lowered number
of how much
accepted
challenged
ab
ters interview
the next day, Tokaca
said, "we can now say with almost
to be more
than
but
that
the
number
is
solute
100,000
certainty
going
to revise
the total
has continued
less than 150,000."34 Tokaca
definitely
interview
be accessed
of the CSCE may
of hearings
Transcripts
are
where
22 February
2008),
by issue
they
organized
within
each
category.
chronologically
The Charlie Rose
29. On U.S. Public
Broadcasting
System,
at www.csce.gov
28.
sulted
and
by
country,
(last con
then
listed
2005.
Show, 23 November
18 December
of War," New York Times,
2005.
and Jakub
evaluated
and
31.
Bijak,
by Ewa Tabeau
A Cri
in Bosnia
and Herzegovina:
Conflicts
in the 1992-95
Armed
Deaths
"War Related
and Recent
Estimates
21, nos. 2-3
Results,"
Journal
of Population
European
tique of Previous
30.
Toll
"The Civilian
Bill Marsh,
are summarized
studies
These
(2005): 187-215.
32.
33.
34.
Ibid.
9 December
2004.
Oslobodjenje,
on
carried
listserv,
Justwatch
Report
bosnia.org.uk/news/news_body.cfm?newsid=1985
10 December
(last
2004.
consulted
Also
available
22 February

at www.
2008).
396
Slavic Review
as the
downwards
has neared
in December
2005 the
project
completion:
BBC reported
not
until
the
be
would
that, although
project
completed
March
final
data
about
the
would
be
and
that
2006,
102,000
figures
using
to
were
of
Bosnian
67.87
the
casualties
date,
Muslims,
processed
percent
25.81 percent
Croats. Of the Muslim
casualties,
Serbs, and 5.39 percent
were
50 percent
50
civilian, a ratio that holds for the far
percent
military,
as well. Serb casualties
were
fewer Croat
casualties
mili
overwhelmingly
to
Serb
civilians.35
1,978
tary: 21,399,
war agree that there
recent
Thus
the two most
studies of the 1992-95
were
about
casualties.
differ
in
that Tokaca's
102,000
They
study
mainly
Serb military
shows more
casualties
than
and fewer Serb civilian casualties
does Tabeau
and Bijak's
Rather
study.
figure
ironically, George
Kenney's
of 60,000
1994 was thus apparently
than
closer to the true figure
through
more
an
of
the
Ken
ironic
result
because
numbers,
any
widely
accepted
at the time. It is
ney was called a "revisionist"
striking that the ratio of mili
to
was
a war in
victims
civilian
for
tary
actually very high
twentieth-century
more
Most
modern
conflicts
than
far
civilian casualties
Europe.
produce
ones.
military
The single greatest
of mass killing during
in
incident
the war occurred
1995
when
the
Bosnian
Serb
of
took
control
the
"safe
area"
of
July
Army
in eastern Bosnia.
Srebrenica
The judgment
of the Trial Chamber
of the
states concisely
next:
ICTY in the case of General
Krstic
what happened
a few
days, approximately
Within
children
women,
uprooted
buses
and
in
and,
the
by
an
Bosnian
25,000 Bosnian
people
elderly
of
atmosphere
Serb
forces
and
tion lines into Bosnian Muslim-held

Muslim
As
men
of
thousands
of
were
them
never
seen
terror,
Muslims,
in
living
onto
loaded
across
transported
most
the
were
to
conditions
flee
consigned
the area,
of them
area,
were
overcrowded
confronta
the
territory. The military-aged
however,
attempted
in brutal
oner, detained
people
Srebrenica,
were
who
Bosnian
to a
they
and then executed.
fate.
separate
were
taken
More
pris
than 7,000
again.36
of the Prosecutor
of the
experts
by the Office
employed
estimated
that at least 7,475 persons were killed
in this action,
of all Muslim men
one-third
enumerated
in the April
1991 cen
including
sus of Srebrenica.
Less than 1 percent
of the victims were women,
and 89.9
were
men
some of
between
the
of
sixteen
and
While
percent
ages
sixty.37
these men were killed
were
in military
executed.
The
thousands
action,
was to drive almost
result of the operation
from Srebrenica,
all Muslims
which was almost
73 percent Muslim
the war; only a few hundred
before
Demographic
ICTY have
have
since
35.
BBC
17 December
Not
a Matter
returned.
Worldwide
2005.
See
of Numbers,"
Monitoring,
also Emir
Bosnian
on
listserv,
Justwatch
Is
"Genocide
Tokaca,
at www
News
and Analysis,
19 January
2006,
22 February
(last consulted
2008).
Chamber
IJudgment,
2 August
2001
(here
17 December
Suljagic,
Institute
.bosnia.org.uk/news.news-body.cfm?newsid=2139
v. Radislav
36. Prosecutor
ICTYTrial
Krstic,
after Krstic
trial
1.
para.
judgment),
are from
37. All figures
Helge
Brunborg,
for Genocide:
How
Were
"Accounting
Many
229-48.
19, no. 3 (2003):
Population
interview
2005;
with
Torkild
Hovde
Killed
carried
Mirsad
Lyngstad,
in Srebrenica?"
and Henrik
European

Urdal,
Journal
of
"Genocide Denial"
397
as Secular
Heresy
Laws
The
of many
of these actions
is clear. What may be ques
criminality
term
iswhether
the
is ap
however,
applying
genocide to this action
mass
a
at
Because
the
ICTY
the
Srebrenica
propriate.
proclaimed
killing
a discussion
in
must
the
trial
of
of
this
General
Krstic,
genocide
question
on the
of
focus, first, on the tribunal's
reasoning,
specifically
judgments
both
the Trial Chamber
in this case.38 At the
and the Appeals
Chamber
in the
time those crimes were committed,
General
Krstic, a general-major
was chief of
of
the
then
commander,
Army
Republika
staff/deputy
Srpska,
of the Drina Corps of that army, the corps that committed
commander,
the crimes at Srebrenica.
tioned,
The
Trial
Chamber
in the Krstic
Decision
Case
as
in
is defined
"acts committed
with
intent to destroy,
specific
as such,"
in part, a national,
racial or religious
ethnical,
group,
of the group or causing
serious bodily or men
including
killing members
to them; the goal of bringing
in
tal harm
about
the "physical destruction
or in
as well.39
was undeniable
It
that
the
Bos
is
whole
important
part"
of the group
nian Serb Army had killed members
and caused bodily
and
was that of intent:
mental
harm to those who
survived. The only question
were committed
in whole
the offences
with the intent to destroy,
"whether
as such."40
or in part, a national,
racial or religious
ethnical,
group,
to Srbrenica,
In regard
this definition
is more
than
problematical
1946
realize.
The
As
United
Nations'
General
original
non-lawyers
might
as "a denial
of
the
of
resolution
defined
existence
genocide
right
sembly
of entire human
and it was said at that time that the victim of
groups,"
was not the individuals
killed but the group.41 But what counts
genocide
was inconsistent,
as "the
at
in
this
case?
The
prosecution
referring
group"
times to the Bosnian Muslims,
the Bosnian Muslims
of Srebrenica,
various
of eastern
Bosnia.
and the Bosnian
The Trial Chamber
Muslims
agreed
that the proper
with the defense
Muslims,
group was the Bosnian
leaving
of a part of that group would
of whether
the destruction
the question
as
qualify
genocide.42
the Trial Chamber
then
made
this determination,
however,
Having
itself by saying that
contradicted
Genocide
or
whole
the
killing
geographical
to
intent
of
of
all members
. . .would
area
the
destroy
part
of
the
of
part
qualify
the group
as
located
group
within
out
with
if carried
genocide
as such
located
in
this
small
the
small
geo
graphical area. Indeed, the physical destruction may target only a part of
limited part of the larger group because the perpetra
the geographically
38.
the
ICTY has
two
these
decision;
a final
judgment.
makes
39.
Krstic
in the
found
tions
The
initial
trial
judgment,
ICTYs
founding
levels, or chambers.
decisions
be
may
para.
statute,
540.
this
The
Trial
appealed
Although
is drawn
Chamber
to
the Krstic
directly
from
cases
hears
the Appeals
court
the
uses
relevant
treaty definitions.
544.
40.
Ibid., para.
41.
Ibid., para. 552.
42.
Ibid.,
para.
and makes
which
Chamber,
560.

the
definition
United
Na
398
Slavic Review
as sufficient to an
tors of the genocide
regard the intended destruction
area at issue.43
nihilate
the group as a distinct entity in the geographic
seems unlikely
to threaten
Yet even annihilation
of a small local group
as the Bosnian
that
the larger "group as such," already defined
Muslims,
is
itself (rather than the individuals
that comprise
is, the group
it), which
Serb Army
the party to be protected
from genocide.
the Bosnian
Further,
as mentioned
court
did not try to kill all members
of the group,
by the
and
in its reasoning,
between
but rather only males
the ages of sixteen
were
and
small
treated
women,
children,
sixty; although
they
appallingly,
were
out
the
old people
of
In
this
Srebrenica.
connection,
transported
to "the
Trial Chamber
that
the
referred
disappear
catastrophic
impact
ance of two or three
of men would
have on the survival of
generations
a
into its reasoning
thus incorporating
traditionally
patriarchal
society,"
also re
about
Bosnian
Trial
Chamber
the
stereotypes
society.44 Strangely,
to Srebenica's
the
ferred
that
location
and
noted
men,
strategic
by killing
to
the Serbs
Bosnian
effective
the
Muslims
any
attempt
"precluded
by
seems
this
the
because
say "strangely,"
recapture
reasoning
territory."451
a
reason
to
The
for targeting
the men.
strategic
acknowledge
military
to destroy
of prisoners
murder
would
be a war crime, but not an attempt
the
"as
group,
such."
on
commentator
in
the leading
Schabas,
genocide
perhaps
on many
of these
trial decision
the Krstic
law, criticized
intent was not to physically
the
that the perpetrators'
grounds:
destroy
remove
to
it
from
but
that
the
the
conclusion
that
the
group
territory;
com
was
to
intent in killing
the
the men and boys of military
eliminate
age
as a whole
was
or actual combatants
than target potential
rather
munity
a "rather enormous
at Sre
and that, although
the atrocities
deduction,"
as crimes
brenica
them as
"surely qualify"
"categorizing
against humanity,
seems
to
distort
the
definition
Yet,
'genocide'
through
unreasonably."46
this reasoning,
of "geno
the Krstic Trial Chamber
extended
the definition
of
cide" from acts made with the intent to cause the physical
"destruction
a group as such," to acts made
to remove an ethnic or religious
community
one of
from a specific
territory, especially
strategic
importance.
William
international
The Appeals
Chamber
Decision
in the Krstic
Case
The
defense
the findings
of the Krstic Trial Chamber
that geno
appealed
in part on the grounds
cide had occurred,
of the "part"
that the definition
of
the
of
group?men
protected
age
military
too narrow,
the Bosnian
and
Muslims?was
the Trial Chamber
had enlarged
the definition
43.
Idid.,
para.
590.
44.
Ibid.,
para.
595.
45.
Ibid., para.
46. William
A.
of the
Judgments
national
Law Journal
in
Srebrenica,
as
part
of
on
in part
the grounds
that
to encompass
of genocide
595.
Schabas,
International
25, no.
"Was Genocide
Criminal
1 (November
Committed
Court
2001):
for
in Bosnia
the Former
and Herzegovina?
Fordham
Yugoslavia,"
45-47.

First
Inter
"Genocide Denial"
399
as Secular Heresy
Laws
destruc
of a group
from a territory,
rather than their physical
expulsion
so made
but in doing
the appeal,
tion. The Appeals
dismissed
Chamber
clear.
the issues less rather than more
to "part" of a protected
Chamber
In regard
the Appeals
group,
simply
was that "the alleged
intended
said that all that was necessary
perpetrator
"Substantial
to destroy
at least a substantial
part of the protected
group."
a
was left undefined,
Chamber
then
introduced
but
the
Appeals
part"
a
is
"If
of
the
emblem
consideration:
group
specific part
purely political
... that
that the part quali
atic of the overall group
may support a finding
was
militar
It then stated that Srebrenica
fies as substantial."47
important
to
its
would
undermine
Bosnian
because
the
Serbs,
capture
"severely
ily
state to ensure
Muslim
its viability."48
efforts of the Bosnian
the military
the Appeals
Further,
was
Srebrenica
Bosnian
of
by
important
and
Muslims
the Muslim
the
said that
Chamber
the
population
international
due
to its prominence
international
of
community,
Srebrenica,
would
in the eyes of both

. . .The
community.
despite
as
serve
the
a
potent
the
elimination
assurances
example
given
to all
in the face
Bosnian Muslims
of their vulnerability
and defenselessness
of Serb military
forces. The fate of the Bosnian Muslims
of Srebrenica
of that of all Bosnian Muslims.49
would be emblematic
on
is an extraordinary
because
it conditions
statement,
"genocide"
of
the purely political
determination
that even a relatively
small portion
a
so
or
so
is
either
lo
group
prominent
protected
politically
strategically
from a territory,
cated that its removal
rather
than its physical
annihila
of
the
the
would
tion,
symbolize
vulnerability
larger group.
This
then advanced
this determination,
the Appeals
Chamber
Having made
statement
out for
the normative
that "the crime of genocide
is singled
The
crime
is
horrific
in
condemnation
and
its
scope;
special
opprobrium.
its perpetrators
entire human
for extinction.
Those
who
groups
identify
to
devise and implement
seek
of
the
manifold
genocide
deprive
humanity
richness
its nationalities,
and religions
Yet
races, ethnicities
provide."50
in
the same court had just decided
could
found
be
that,
fact, "genocide"
an entire group,
nor even a
when
the intent was not to destroy
large part
a
of
of it,much
less "seek to deprive
race, ethnicity,
humanity"
nationality,
or religion.
This inconsistency
the Krstic appeals decision
reflects
within
the prob
to single
in
that
the
lem faced by the judges:
is
intent
is
genocide
specific
ac
out an entire human
the
for
themselves
extinction,
group
yet
judges
was
not
at
this
Bosnian
Serb
that
the
what
Srebrenica
knowledged
Army
to do.
did, or even attempted
v. Radislav
19 April
ICTY Appeals
Chamber
2004
Krstic,
(here
Judgment,
12.
para.
appeal),
a Bosnian
as one between
15. The
of the conflict
Muslim
48.
Ibid., para.
depiction
state
state was
accurate
state and a Serb
it
in
the
Croatian
(though
ignored
empirically
to the
that the recognized
Bosnian
but contradictory
government
premise
Herzegovina)
all of Bosnia's
peoples.
represented
47.
after
Prosecutor
Krstic
49.
Ibid.,
para.
16.
50.
Ibid.,
para.
36.

400
Slavic Review
ICTY Trial Chamber

about
"some hesitancy"
subsequent
expressed
a
this
"which
characterisation
of
adopting
reasoning,
permits
genocide
even when
a limited
the specific
intent extends
area,
only to
geographical
such as a municipality."
was "aware that this
This Trial Chamber
approach
distort
the definition
of genocide
if it is not applied with caution."51
might
This court cited a law review article
that had argued
that if such a defini
to prevail,
tion were
to indicate
local mass
that
be
taken
killings might
there was not a plan on a national
level. Carrying
this logic further, Tomis
are defined
as
even the
lav Dulic notes
that if local mass killings
genocide,
or
in
Holocaust
becomes
of
"individual
many
part
composed
genocides"
local massacres.52
At that stage, the possibility
arises of seeing reciprocal
or "retributive"
or
forces of antagonistic
when
racial, ethnic,
genocides
a
massacre
even
each
commit
of
local
the
other's
groups
religious
people,
of their military
forces.53 Yet at that point, what distinguishes
"genocide"
from other ethnic,
racial, or religious mass killings?
The
Trial
Chamber
Decision
in the Krajisnik
The
more
of whether
question
genocide
with
the decision
complicated
one of the most
Momcilo
Krajisnik,
Bosnian
Serbs from 1990 throughout
indictment
even
in Bosnia
became
occurred
in the case of
of the Trial Chamber
actors among
the
important
political
to
the
the war. Krajisnik,
according
him,
against
a
held
Case
prominent
position
in
the
Bosnian
Serb
and
leadership
was
as
sociated with Radovan KARADZIC, Biljana PLAVSIC, Nikola KOLJEVIC,

of
and other members
other members
of the Bosnian Serb leadership,
the joint criminal enterprise. He was a member
of the National
Security
of Bosnia
the Expanded
of the Serbian Republic
Council,
Presidency
and Herzegovina,
the Main Board of the SDS and the Bosnian Serb As
By virtue of those associations,
sembly, of which he was also President.
he had de facto control and authority over
and memberships,
positions
Serb Political and Governmental
the Bosnian
Serb Forces and Bosnian
in this
in the crimes alleged
and
their
who
agents,
participated
Organs
indictment.54
He
was
indicted,
and
convicted,
The
these
of crimes
positions.
presentation
involved
3,800
27,000
pages of transcripts,
fense exhibits,
and 27 chamber
exhibits.55
51.
Prosecutor
52.
Tomislav
1941-42"
(PhD
ICTY Trial Chamber

Stakic,
of Nation:
Local Mass
"Utopias
II Judgment,
in Bosnia
Killing
18-19.
diss., Uppsala
2005),
University,
"The Partition
of India and Retributive
e.g., P. Brass,
Methods
and
Means,
Journal
of Genocide
Purposes,"
53.
jab,
v. Milomir
Dulic,
on his
in
responsibility
lasted more
than two years,
380 de
exhibits,
prosecution
Krajisnik
openly
argued with
based
of evidence
See,
1946-47:
31 July 2003.
and Herzegovina,
in the Pun
Genocide
Research
5, no.
1 (March
2003): 71-101.
54.
Prosecutor
v. Momcilo
55.
Prosecutor
v. Momcilo
Krajisnik,
Consolidated
amended
7 March
Indictment,
2002.
2006,
para.
Krajisnik,
ICTY Trial
Chamber
I Judgment,
21.

27
September
"Genocide Deniar
Laws
401
as Secular Heresy
so the defense
was not unified
his defense
and the case should
attorneys,
to win. And,
in fact, Krajisnik was con
have been easy for the prosecution
of extermination,
victed
and forced
murder,
persecution,
deportation,
of
restrictive
transfer, all as crimes against humanity
involving
imposition
measures
mur
and the denial
of fundamental
and discriminatory
rights;
on
treatment
towns
cruel
and
and
inhumane
attacks
der;
during
villages
de
various detention
and within
forcible
unlawful
centers;
displacement;
or
forced
labor at front lines; appropriation
of
tention;
plunder
private
and destruction
of private property
and of cultural monuments
property;
sites. Further,
of a
and sacred
all of this was the result,
the court found,
"common
criminal
and
the
other
persons
involving Krajisnik
enterprise"
named
above.56
Yet despite
all this evidence,
the court found
that "none of these acts
were
to destroy,
in part, the Bosnian-Muslim
committed
with
the intent
or Bosnian-Croat
as such," and thus that
was not
ethnic group,
Krajisnik
or of
to
in
of
In
the
latter
genocide
genocide.
guilty
complicity
regard
a
was
there
Krstic
with
the
however,
charge,
seeming
inconsistency
judg
ment.
Krstic was not convicted
of perpetrating
he per
because
genocide,
that crime, but rather of "aiding
sonally did not have the intent to commit
to decide
ICTY
and abetting"
Thus
the
that while
managed
genocide.57
to say that one of the main
there was not sufficient
evidence
leaders of the
or abetted
one
in its perpetration,
Bosnian
Serbs perpetrated
genocide
of the leading Bosnian
who did not have
Serb army generals,
the intent
to commit
nevertheless
abetted
the commitment
of genocide.
genocide,
the leading Appeals
Chamber
decision
said that, while
the perpe
Further,
trators of genocide
to
no such
exterminate
entire
human
and
try
groups,
was
at
still
made
occurred
there.
Srebrenica,
attempt
genocide
The
Decision
of
the International
Court
of Justice
The 26 February
of the ICJ in the case brought
2007 decision
by Bosnia
to clarify
and Herzegovina
Serbia
and
did
against
Montenegro
nothing
It simply adopted
the ICTYs finding
in Krstic that genocide
matters.58
had
at Srebrenica,
occurred
without
the
behind
that
de
discussing
reasoning
that Bosnia
cision.59 It also decided
and Herzegovina
had not proved
that
in Belgrade
the authorities
had ordered
the massacre
and indeed
that
are to the contrary:
to kill the adult male
"all indications
that the decision
was taken by the VRS
of the Muslim
of Srebrenica
population
community
Serb
Main
but
instructions
from or effec
without
Staff,
[Bosnian
Army]
Serbia
and
For
this
the ICJ found
tive control
reason,
by"
Montenegro.60
that Serbia had not committed
incited
the
commission
of geno
genocide,
56.
57.
Ibid.,
Krstic
867-69.
paras.
appeal,
International
paras.
Court
135-44.
of Justice,
the Application
Case Concerning
of the Convention
v. Serbia
and Punishment
and Herzegovina
the Prevention
(Bosnia
of the Crime
of Genocide
26
2007.
February
Montenegro),
Judgment,
59.
Ibid., paras.
296, 297.
60.
413.
Ibid., para.
58.

on
and
402
Slavic Review
or been
to commit
in the commission
cide, conspired
genocide,
complicit
of genocide
in Bosnia,
it
had
convention
violated
the
though
genocide
to
in
not
Srebrenica
and
by failing
prevent
genocide
arresting
general
by
Ratko Mladic.
"Genocide"
in Bosnia?
Thus
courts
that have dealt with allegations
far, then, the international
of genocide
in Bosnia
have made
limited
that are not con
very
findings
sistent with one another.
The
ICTY and the ICJ have held
that only the
mass
men
at
at
of
Bosnian
Muslim
Srebrenica
the
very end of the
killings
war constituted
Krstic
decision,
(ICTY
genocide
by ICJ) ;
finding
adopted
a
that while
of the Bosnian
those
Serb Army who helped
general
organize
was
not
of
in
he
himself
had
intended
killings
guilty
complicity
genocide,
to commit
and thus was not guilty of committing
it (ICTY, Krstic
genocide
a
that
of
the
Bosnian
Serbs had no
decision);
leading political
authority
to by ICJ) ;
intent to commit
referred
(ICTY, Krajisnik decision,
genocide
to commit
that Serbia neither
ordered
the Bosnian
Serb Army
the mur
nor was in a
to control
ders at Srebrenica
the
Bosnian
Serb
Army
position
once
the killings began
it could have
of whether
(ICJ) ;but that regardless
the killings,
Serbia should have tried to do so but did not. All of
prevented
rest on the decision
in Krstic that a massacre
in a
these judgments
of men
as
was
counted
location
because
that
location
important
single
genocide,
and militarily. While
the intent to "to
both symbolically
genocide
requires
or in part, a national,
in whole
racial or religious
ethnical,
group,
destroy,
as such," international
courts have yet to find that anyone
actually had that
nor the Bosnian
intent?not
Serb leadership
Serbia
(the ICJ decision),
nor even one of the
out
carried
it
who
(Krstic). Pre
(Krajisnik),
generals
to
but
General
Ratko
Mladic
had
the
intent
commit
sumably,
genocide,
on a local level, and he has not yet been
less
convicted.
much
tried,
only
at a local level considered
But why is a massacre
instead
"genocide"
or
mass
murder?
Recall
the
self
of, say, persecution,
extermination,
in Krstic in identifying
contradiction
of the Appeals
Chamber
the "special
of genocide
because
"its perpetrators
opprobrium"
identify entire human
to
for
extinction"
of the mani
and
"seek
groups
thereby
humanity
deprive
its nationalities,
fold richness
and religions
and
races, ethnicities
provide"
a case in which
to have occurred
in
then pronouncing
these
"genocide"
were
seems to have worked
hard
goals
clearly not sought. The Krstic court
to extend
to cover a mass killing of purely
the concept
of genocide
local
even
not
in
it
did
in
fit
the
definition
of
found
scope,
though
genocide
ternational
law until
its decision.
the Trial Chamber
decision
in Krstic and con
Schabas, who criticized
cluded
that calling Srebrenica
the term,
distorted
genocide
unreasonably
now seems
to have
recent
that
tribunal
international
criminal
accepted
decisions
the concept
in
have expanded
the
definition
beyond
adopted
com
in
1948.61 Since
have
least
the
(at
legal scholars
long recognized
61. William
of Genocide,"
A. Schabas,
"The
'Odious
Scourge':
Genocide
Studies
and Prevention
1, no.
Evolving
2
(September
of
Interpretations
93-106.
2006):

the Crime
"Genocide Denial"
mon
403
as Secular
Heresy
Laws
is constantly
of legal concepts
that the meaning
chang
normal
But
of
is
the
the
legal scholarship.62
ing, accepting
validity
change
the problem
is not being used as a legal term, even by
is that "genocide"
at an international
his article was first given
Schabas.
because
Perhaps
in Yerevan,
the
National
Commission
conference
Armenia,
by
organized
the
Armenian
for the Commemoration
of the Ninetieth
of
Anniversary
his paper by concluding
that "Debates
about
Schabas
ended
Genocide,
case
cases of
to
in
of
historic
reassessed
need
be
evolving
light
genocide
cannot
be "particularly
law" and that the widened
definition
comforting
to those who have
within
of Armenians
tried to deny
that the massacres
one of the greatest
to
in
of
Twen
the
1915
amounted
genocides
Turkey
law world)
tieth Century."63
seems
to be saying that a
In making
this comment,
Schabas
finding
a definition
on facts
of "genocide"
does not depend
but rather
fitting
can be found
to fit the facts. This
is
the definition
position
by altering
one
to
of
of
the
the
rule
of
fundamental
that
law,
contrary
principles
act first being
is no crime without
there
the punishable
defined
by law
are
(nulla crimen sine lege). Such ex post facto criminalizations
prohibited
in the United
9 of the federal Constitution.
States by Article
1, Section
Those who have tried to deny the Armenian
Genocide
find
may actually
seems
to
assessment
it
since
that
Schabas's
comforting,
recognize
quite
one redefines
even that case cannot
be called genocide
unless
the term
to achieve
that goal.
precisely
or Srebrenica?
not rec
But why stop with Armenians
in Turkey
Why
that the "population
Greece
and Turkey
in
between
ognize
exchanges"
as Paul Brass has called
in 1947 constituted,
1923 and India and Pakistan
the latter, mutual,
"retributive"
the violent
Surely
genocides?64
expulsion
of 700,000
ethnic Germans
from
the Sudetenland
by the end of 1945,
as
also qualify,
19,000 and 30,000 dead, would
by between
accompanied
more
of
the less violent
but still forced
than two million
might
expulsion
a year later.65 Even
one work
more Germans
from Czechoslovakia
though
on this case
in 2000 distinguished
between
"ethnic cleansing,
published
as
means
to achieve
different
transfer
and
using
genocide"
population
cases
to
is right, and consideration
of past
if Schabas
needs
similar goals,
of "genocide"
in terms of the widened
definition
be conducted
recently
it is hard to see how Edvard Benes
and
courts,
by international
adopted
are not rendered
ex post facto.
the Czechs
genocidaires
to classify past cases
of genocide
is
Using
evolving
legal definitions
a criminal
even more
the
issue
involves
when
adjudicating
problematic
since a defendant
who held
for genocide
denial,
strictly to
prosecution
62.
classic
statement
is Edward
H.
Levi,
An
Introduction
to Legal
Reasoning
(Chicago,
1949).
63. William
of Genocide"
Human
Rights
Brass,
65. Data
64.
Expulsion
463-86.
A.
"The
Schabas,
(paper
presented
and Genocide,"
"The
Partition
from Eagle
of Czechoslovak
'Odious
at the
Yerevan,
of India,"
Glassheim,
Germans
Scourge':
conference,
Armenia,
71-101.
"National
in 1945,"
Evolving
"Ultimate
20-21
April
Interpretations
Ultimate
Crime,
of
the Crime
Challenge,
2005).
and Ethnic
Mythologies
Central European
History
Cleansing:
33, no. 4

The
(2000):
404
Slavic Review
the 1948 definition

could be pronounced
say that
guilty by judges who
that definition
of genocide
have
Nixon
is, as Richard
put it, in
might
we
In
in
often
this
recall
that
context,
may
operative.
heresy
religious
a later
a
text.
volves rejecting
of
fundamental
interpretation
The
Decisions:
Judicial
Exegesis
of Secular
Heresy
at Sre
that the Krstic decision
that the mass killings
argues
My analysis
not
of
in
brenica
constituted
is
the
definition
accordance
with
"genocide"
are the other deci
that crime under
international
law, and thus neither
sions that relied upon
thus
that of the ICJ. But ifmy analysis
it, including
constitutes
is being
offense
of "genocide
the criminal
denial," new ground
to criti
western
in modern,
it a crime
broken
jurisprudence
by making
cize a court decision.
of Europe's
Yet both
the language
of the Council
on
to the Convention
"Additional
and the law pro
Protocol
Cybercrime"
to
seem
to
the
EU
do
this
result.
mandate
posed
parliament
A pronouncement
that is immune
is thereby
from criticism
infallible,
in secular politics.
unknown
is unknown
but infallibility
It is also otherwise
in secular law. Indeed,
the very fact that the Council
of Europe's
language,
if taken literally, leads to this result, means
of the inter
that the judgment
de
of dogma
national
tribunal has more
the character
than of a judicial
to
cision. The
from
criticism
afforded
the
pronounce
immunity
judicial
to
ment
is strong evidence
that "genocide
denial"
laws are meant
punish
ensure
a
to
act
secular heresy,
that
laws
since, uniquely,
dogma may
heresy
not be subjected
to challenge.
Politicizing
Mass
Killing
and Other
Crimes
against
Humanity
to extend
in an
of engaging
in efforts
of genocide
the concept
arc that is
to
be better
ask
it might
inherently
politicized,
ever-widening
and well-proved
the indicted
crimes
of persecu
why
against
humanity
are not sufficient
to
treatment
and inhumane
tion, expulsion,
murder,
cover Srebrenica.
instance
the answer
is that this particular
Presumably,
of mass killing was more
than other mass killings. Assertion
reprehensible
of reprehensibility
is a political
that invokes what appears
tactic, however,
to be a timeless
in the service of a temporary
Human
purpose.
morality
has asserted
that genocide
denial
"is a form of desecration
Rights Watch
of the dead, a violation
but the
of one of the most
basic human
norms,"
in classifying
the dead as victims
of persecution
"desecration"
involved
or extermination
There
is an
is not obvious.66
rather
than of genocide
instead
added political
that victims died in genocide
value in proclaiming
or massacre,
of (mere? ordinary?)
but this
extermination,
persecution,
accrues
to benefit
not to the dead but to those who claim to be entitled
to be
from their martyrdom.
As Todorov
puts it, "although
nobody wants
. . .
a victim
one
to
in the present,
in
like
have
the
would
been
many
past.
can claim
to
If some community
of
been
victim
have
the
convincingly
Instead
66.
Human
Rights
Watch,
"Genocide
Denial."

injustice
in the past,
405
as Secular Heresy
Laws
"Genocide Denial"
then
it acquires
an inexhaustible
line of credit
in the
present."67
to deal with the unquestionable

horrors
of the Ho
term devised
the status of victim while
tool for claiming
is a powerful
rhetorical
rather than indi
in both cases on groups
the status of victimizer,
imposing
such rhetori
In the former Yugoslavia,
various parties
viduals.
employed
to the mass murders
in the Inde
the Serbs in regard
cal efforts, notably
a variety
the
but
State
of
Croatia
1980s,
(1941-45);
throughout
pendent
in the 1940s:
to have been
the true victims of genocide
claimed
of groups
Croats
Muslims
Serbs
and
Muslims,
Croats,
Serbs),
Albanians),
(by
(by
with both
the
rhetoric
In
the
Serb
intensified,
1990s,
communists).68
(by
to have been
after the fact) and Albanians
Muslims
(Bosniaks
claiming
The
locaust
at the hands
who
of the Serbs. The Muslims,
of genocide
victims
really
in claiming
successful
did suffer the largest losses in the 1990s, were most
in the ICTY.
victim
status, as evidenced
by the indictments
of Serbs from 1941
Yet the Serbs' unsuccessful
claims that the murders
known by its Cro
to 1945 in the "Independent
State of Croatia"
(generally
as
should
atian acronym,
be recognized
NDH)
gives pause
"genocide,"
to
killed
relative
the
number
for thought.
absolute
numbers,
by
Judged
of the Ustasa
in the NDH,
and the ideology
the entire
Serb population
seems more
term genocide as defined
in
1948
convention
the
the
regime,
in the NDH
of Serbs, Jews, and Roma
for the mass
killings
appropriate
at
in the 1990s. Commentators
that occurred
than it does for anything
in
that the sudden
invocation
the time, however, myself
included,
argued
in the 1940s was part of an effort by Serb leaders
of "genocide"
1990-91
of how
to stir up nationalist
Serbs.69 But the choice
sentiment
amongst
on the political
in
to view the Serb victims of 1941-45
program
depends
on
are
the
circumstances
which
than
under
rather
which
invoked,
they
the Bos
they died.70 The same, however, may be said for the claims about
nature
of the
in 1995. That
both
the
nian Muslim
victims at Srebrenica
is,
are
not factual
its
claim
and
resolution
questions,
political
("genocide")
even
to challenge,
such
ones, and thus by their very nature
open
though
that
and
distasteful.
Unless,
is, they
may be both discomforting
challenges
so that any
are dogma,
is heresy.
challenge
in the NDH
raises
In fact, the politicization
of the 1940s mass killings
accusa
to
that
the uncomfortable
(not
say heretical)
thought
genocide
even when
invoked
the situation
itself be a form of hate speech,
tion may
reason
is
that
The
of
the
1948
definition
fit
well
geno
may very
genocide.
143.
and Memory,
Todorov,
Hope
and
"Mass Killings
See Robert
Hayden,
in Dan
Stone,
ed., The Historiography
1992-95,"
the Dead:
69. Robert
"Recounting
Hayden,
67.
68.
and
Wartime
Memory,
Denich,
in Late-
Massacres
History
and
Opposition
and
Post-Communist
under
State
Socialism
1941-45
of Genocide
in Bosnia,
2008).
(New York,
of Genocide
of
and Redefinition
The
Rediscovery
in Rubie
S. Watson,
ed.,
Yugoslavia,"
see also Bette
1994);
(Santa Fe, N.M.,
Images
and
the
Nationalist
"Dismembering
Ideologies
Yugoslavia:
367-90.
American
21, no. 2 (1994):
Genocide,"
Ethnologist
The Political
Lives
Katherine
70. See, generally,
of Dead
Verdery,
Postsocialist
1999).
(New York,
Change
Symbolic
Bodies:

Revival
Reburial
of
and
406
Slavic Review
cide accusations
increase not only the hostility
the accused
group
against
but the aggressiveness
on whose
of the group
behalf
the claim is made.
Research
in
set of
this idea. In a carefully
supports
psychology
designed
a
of
at
Al
the
of
students
group
experiments,
Jewish-Canadian
University
berta were much more
to
to
Palestinians
and
collective
likely
assign
guilt
to be less
to "forgive" Palestinians
when
reminded
of the Holocaust
willing
than those in the study sample who did not receive
such a reminder.
This
differential
was invoked; a refer
result only occurred
when
the Holocaust
ence
a control
no
studying
study of the Cambodian
genocide
produced
such differentiation
in Jewish-Canadian
allocations
of collective
students'
guilt to Palestinians.71
use of
the political
accusations
examples,
by
genocide
in
and
the
results
that
1990-91,
politicians
experimental
indicating
increase
into
toward other
genocide
groups,
allegations
hostility
bring
the
that
denial
laws
combat
hate
sharp question
presumption
genocide
and thus reduce
tensions
in the asser
between
speech
groups
implicated
tions of genocide.
On the contrary,
may themselves
genocide
allegations
serve to increase
not
diminish
and
thus
it,
peace be
hostility,
endanger
tween individuals
and between
groups.
of
Both
these
Serb
as Verbal Delict:
Heresy
of Politically
Unpopular
In the
mitted
The
Criminalization
Thought
of the ICJ decision

that Serbia had not com
the
in
Helsinki
Committee
for Human
genocide
Rights
Serbia
issued a remarkable
draft document,
that
the
Serbian
demanding
several
pass
legislature
immediately
legislation
containing
noteworthy
or
of genocide
relativisation
provisions:
"Any glorification,
justification
and all other violations
of international
law is a crime which
endangers
the constitutional
state of affairs and the future of the
the present
order,
of Serbia"; and "The respect of human
Republic
rights and responsibility
as well as activities which will ensure
entail also a respect
for victims,
that
measures
all necessary
to ensure
have been undertaken
the right to know
a
the truth." To this end, Serbia is to commit
itself "to prompt
and
political
not
which
will
of
tolerate
the
crimes."72
public dialogue
justification
The first noteworthy
of this draft is how very closely
element
its struc
ture parallels
the "verbal delicts"
sections
of the Criminal
of the
Code
former Yugoslav
had been
which
the target of strong criticism
federation,
International
in the mid-1980s.73
A second
is what appears
by Amnesty
to be the remarkable
assertion
that there actually
is a single truth, while
71.
immediate
Michael
tion
for Forgiveness
combe
and Bertjan
aftermath
in Bosnia,
and
J. A. Wohl
and Collective
Doosje,
eds.,
of
Nyla R. Branscombe,
"Importance
Guilt Assignment
for the Holocaust,"
Collective
Guilt: International
Perspectives
Social
Categoriza
in Nyla R. Brans
(Cambridge,
Eng.,
294-98.
2004),
72.
Helsinki
State
Organs
tional Court
73.
E.g.,
Committee
for Human
of
the Republic
of Serbia
of Justice"
(draft), Helsinki
Amnesty
International,
Rights
in Their
Bulletin
Yugoslavia,
in Serbia,
Fulfillment
no.
10, March
27-28.
"Declaration
of
the Decision
of
of Obligations
of the Interna
2007.

"Genocide Denial"
Laws
407
as Secular
Heresy
a third is the
that "will
that there can be a "public dialogue"
proposition
as
so
not tolerate"
defined
the assertion
of positions
'justification
vaguely
as
of
of crimes."
In 1985, Amnesty
had adopted
International
"prisoners
on
of
"hostile
"for
conscience"
convicted
charges
propaganda,"
people
a book or
a film or pamphlet;
for letters they had writ
writing
producing
or
that were published
abroad.
interviews
articles
ten; for writing
giving
not
views
had
advocated
had
violence;
they
merely
disap
They
expressed
an
of by the authorities
and considered
by the courts to constitute
proved
social and political
It is obvious
that the
attack on Yugoslavia's
order."74
of the human
verbal delicts
those of the
rights future may easily match
socialist past.
to assert
It would
that "human
is a worthier
be banal
rights"
goal
or "brotherhood
than "socialist
and
self-management"
unity." The flaw is
International
itself placed
it in 1985: that these
where Amnesty
precisely
even
on po
vague formulations
permit
prosecution,
persecution,
simply
But this flaw, these vague formulations,
the
litical grounds.
have provided
for
all
of
the
justifications
heresy,
regimens
including
Inquisi
punishing
we may now think of the
to
tion. Whatever
that they enforced,
ideology
was the gravest of all crimes and the greatest
the inquisitors
threat
heresy
to society. The need
to combat
it led to the development
of rules and pro
were
that
toward
the
The denial
ceedings
heavily weighted
prosecution.75
of rights in the defense
of officially
sanctified
"truth" has a long history.
In the end, the punishment
of heresy
of power
involves
the assertion
a
to
elite
that
holds
its
and
be
values
immune
by
political
assumptions
to
from challenge.
That
this kind of power
is now justified
reference
by
human
rather
than
or,
socialism,
protecting
protecting
Christianity,
rights
for that matter,
itself, is not really very comforting.
democracy
74.
75.
(Berkeley,
Ibid., 9-10.
See Steven
1990),
Haliczer,
66-67.
Inquisition
and
Society
in the Kingdom
of Valencia,

1478-1834

Genocide Denial Laws As Heresy

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"Genocide Denial" Laws as Secular Heresy: A Critical Analysis with Reference to Bosnia

Author(s): Robert M. Hayden

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29 May 2007 ("EU Legislation

the latter pronouncement

Denial: Still in Flux") and 23 April 2007 ("EU

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that do not disturb public

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to state up front that my

of the term heresy to cover genocide

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nia and Herzegovina

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sense if one accepts

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stated that more

on the tenth anniversary

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tion lines into Bosnian Muslim-held

territory. The military-aged

and then executed.

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in the eyes of both

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ICTY Trial Chamber

sociated with Radovan KARADZIC, Biljana PLAVSIC, Nikola KOLJEVIC,

ICTY Trial Chamber

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the 1948 definition

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to deal with the unquestionable

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of the ICJ decision

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