RADA NAUKOWA

prof. Małgorzata Ciesielska (Northumbria University Newcastle), prof. dr hab. Zbigniew Czachór (Uniwersytet Adama Mickiewicza w Poznaniu), dr Katarzyna Czeszejko-Sochacka (Uniwersytet Rzeszowski), prof. Alexander Galushkin (Academy of the International Agency of Public Security – Geneva), prof. Óscar García Luengo (Uniwersytet w Granadzie), prof. Andrey A. Kinyakin, (Centro Universitário Integrado di Campo Mourão, Brazil), dr Judita Krasniqi (Public International Business College, Mitrovica, Kosovo), doc. JUDr. Filip Křepelka (Uniwersytet Masaryka), prof. José Luis Orella Martínez (Universidad CEU San Pablo Madrid), dr Mario De Martino (International Research Group on E-Learning & Innovative Education (IRGELIE), University of Rome “Foro Italico”, Italy), prof. Josef Melchior (Uniwersytet w Wiedniu), prof. Michael Minkenberg (Uniwersytet Viadrina we Frankfurcie nad Odrą), prof. Darko Nadić (Uniwersytet w Belgradzie), prof. Peter Nedergaard (University of Copenhagen), prof. assoc. dr. Islam Qerimi, LL.M (University "Isa Boletini" Mitrovica, Kosovo), prof. Josep Mª Reniu Vilamala (Uniwersytet w Barcelonie), prof. dr hab. Janusz Ruszkowski (Uniwersytet Szczeciński), prof. Dieter Segert (Uniwersytet w Wiedniu), prof. dr hab. Ewa Stasiak-Jazukiewicz (Uniwersytet Warszawski), prof. dr hab. Stanisław Sulowski (Uniwersytet Warszawski), prof. Jolanta Urbanovic (Uniwersytet Michała Römera w Wilnie), prof. Alessandro Vitale (Uniwersytet w Mediolanie), prof. dr hab. Tadeusz Wallas (Uniwersytet Adama Mickiewicza w Poznaniu), prof. dr hab. Yaroslav Zhalilo (Narodowy Instytut Studiów Strategicznych w Kijowie), prof. Peter Zervakis (Uniwersytet w Bonn), prof. Ricardo Zugasti (University of Zaragoza), prof. Jan Žukovskis (Uniwersytet Witolda Wielkiego – Vytautas Magnus University w Kownie).

REDAKTOR NACZELNA

prof. univ. dr hab. Marta Witkowska (University of Warsaw, Poland)

ZASTĘPCY REDAKTORA NACZELNEGO

prof. univ. dr hab. Monika Klimowicz (University of Wroclaw, Poland)

dr hab. Wojciech Lewandowski (University of Warsaw, Poland)

dr Piotr Pietrzak (Sofia University "St. Kliment Ohridski", Bulgaria)

SEKRETARZ REDAKCJI

dr Elena Kucheryavaya (University of Warsaw, Poland)

ASYSTENTKA REDAKTOR NACZELNEJ

mgr Kaja Wenedy (University of Warsaw, Poland)

ADRES REDAKCJI

Wydział Nauk Politycznych

i Studiów Międzynarodowych

Uniwersytet Warszawski

ul. Krakowskie Przedmieście 26/28

00-927 Warszawa

e-mail: przeglad.europejski@uw.edu.pl

https://przegladeuropejski.com.pl/

PROJEKT OKŁADKI

Anna Gogolewska

ILUSTRACJA na OKŁADce

Przemysław Koch/123RF

REDAKTOR PROWADZĄCY

Anna Kołtunowska

REDAKCJA JĘZYKOWA

Svetlana Kucheriavaia

SKŁAD: Tekanet Tomasz Kasperczyk

DRUK: POZKAL

Edycja papierowa jest wersją pierwotną czasopisma

ISSN 1641–2478

e-ISSN 2657-6023

REDAKTORZY MERYTORYCZNI NUMERU

prof. dr Sadmir Karović (University of Travnik, Bosnia and Herzegovina)

dr Katarzyna Czeszejko-Sochacka (University of Rzeszów, Poland)

CZŁONKOWIE REDAKCJI

prof. dr hab. Inna Khovrak (State Tax University, Ukraine)

prof. dr Jaroslav Dvorak (Klaipeda University, Lithuania)

prof. univ. dr hab. Adam A. Ambroziak (SGH Warsaw School of Economics, Poland)

prof. asst. dr Labinot Hajdari (Public International Business College, Mitrovica, Kosovo)

doc. dr Olena Hrybiuk (International Scientific and Technical University, National Academy of Educational Sciences of Ukraine)

dr Magdalena Dobrowolska-Opała (University of Warsaw, Poland)

dr Miruna Balosin (Babeș-Bolyai University, Cluj-Napoca, Romania)

dr Kamil Ławniczak (University of Warsaw, Poland)

mgr Alenka Antloga (The Friends of ERA Association and The International Association of Constitutional Law, Slovenia).

ZESPÓŁ WSPARCIA REDAKCJI (JUNIOR COPYWRITERS)

mgr Maria Zielniewicz (University of Warsaw, Poland)

mgr Izabela Opozda (Aarhus University, Denmark)

Magdalena Marynowska (University of Warsaw, Poland)

Klaudia Sienkiewicz (University of Maria Skłodowska-Curie in Lublin, Poland)

OBSŁUGA BAZ INDEKSACYJNYCH

dr Michał Szczegielniak (University of Warsaw, Poland)

Wydawnictwa Uniwersytetu Warszawskiego

02-678 Warszawa, ul. Smyczkowa 5/7

wuw@uw.edu.pl

Dział Handlowy: tel. (48 22) 55-31-333

e-mail: dz.handlowy@uw.edu.pl

Księgarnia internetowa: www.wuw.pl

© Copyright by Authors, 2025.

Publication under the Creative Commons Attribution 4.0

(CC BY 4.0) license, full text available at: http://creativecommons.org/licenses/by/4.0/

Czasopismo dofinansowane ze środków programu Inicjatywa Doskonałości – Uczelnia Badawcza (IDUB) Uniwersytetu Warszawskiego.

CONTENTS

Sadmir KAROVIĆ • Genocide in international criminal law with reference to Srebrenica – prevention and challenges

Vedad GURDA • Denial of genocide and other war crimes in Bosnia and Herzegovina and its impact on violation of human rights

Katarzyna CZESZEJKO-SOCHACKA • Participation of child soldiers in armed conflicts: the case of Bosnia and Herzegovina

Krzysztof KRYSIENIEL • Foreign judges in the Constitutional Court of Bosnia and Herzegovina. Legal and political aspects

Maria OCHWAT • An examination of human rights conditions in Bosnia and Herzegovina: a case study approach

Laura KOBA • Anti-discrimination policy in Bosnia and Herzegovina

Piotr TOCZYSKI • The roots of contemporary European identity: Carolingian and Arthurian references in the postmedieval acquis mythologique

Magdalena MARYNOWSKA • Balancing judicial apoliticism and the right to freedom of speech – a critical analysis of ECHR Judgement no. 16915/21

SPIS TREŚCI

Sadmir KAROVIĆ • Ludobójstwo w międzynarodowym prawie karnym w kontekście Srebrenicy – zapobieganie i bariery

Vedad GURDA • Zaprzeczanie ludobójstwu i innym zbrodniom wojennym w Bośni i Hercegowinie oraz jego wpływ na łamanie praw człowieka

Katarzyna CZESZEJKO-SOCHACKA • Udział dzieci-żołnierzy w konfliktach zbrojnych na przykładzie Bośni i Hercegowiny

Krzysztof KRYSIENIEL • Sędziowie zagraniczni w Sądzie Konstytucyjnym Bośni i Hercegowiny. Aspekty prawne i polityczne

Maria OCHWAT • Analiza przestrzegania praw człowieka w Bośni i Hercegowinie: podejście oparte na studium przypadku

Laura KOBA • Polityka antydyskryminacyjna w Bośni i Hercegowinie

Piotr TOCZYSKI • Geneza współczesnej tożsamości europejskiej: odniesienia karolińskie i arturiańskie w post-średniowiecznym acquis mythologique

Magdalena MARYNOWSKA • Równowaga pomiędzy apolitycznością sędziów a prawem do wolności słowa – krytyczna analiza wyroku ETPCz nr 16915/21

Przegląd Europejski – European Studies Quarterly, ISSN: 1641-2478

vol. 2025, no. 1

Copyright © by Sadmir Karović, 2025

Creative Commons Attribution 4.0 (CC BY 4.0)

http://creativecommons.org/licenses/by/4.0/

DOI: https://doi.org/10.31338/1641-2478pe.1.25.1

Genocide in international criminal law with reference to Srebrenica – prevention and challenges

Sadmir Karović, University in Travnik (Travnik, Bosnia and Herzegovina)

E-mail: karovic.s@hotmail.com

https://www.orcid.org/0000-0003-1777-0370

Abstract

In 2025 will be 30 years since the end of the war in Bosnia and Herzegovina (BiH). In May 2024, the United Nations adopted a resolution to establish 11 July as International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica. The author focuses in this article on the crime of genocide, which is often referred to in the literature as the “crime of crimes” with a special reference to Bosnia and Herzegovina, i.e. the Srebrenica genocide. The analysis of this issue is based on the convention concept of genocide arising from the legal construction defined in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. The most important segments of the text are: examination of the genocide crime through the prism of the general legal and social context, the convention concept of genocide with reference to the misuse of the concept of genocide, as well as to the negation or denial of the crime, the glorification of the persons legally convicted of committing genocide and other war crimes. The genocide committed in Srebrenica in July 1995, where between 7000 and 8000 people were killed, must be a warning to humanity with a clear preventive message that genocide will never and nowhere be repeated, and that the international community will take all necessary actions to provide adequate protection. The essential problem in establishing or proving the existence of genocide is primarily related to the complexity of establishing the specific genocidal intent of the perpetrator as a specific and unique feature of this crime. The crime of genocide is precisely recognisable by specific genocidal intent as the subjective component of this crime, which distinguishes it from other related international crimes. Additionally, the intention of the author is to point out the importance of establishing judicial truth, general prevention, affirmation and promotion of the universal human values, on which the civilised world rest, in order to reconcile, coexist and ensure peace, security, human rights and freedom, the rule of law, the culture of dialogue, humanity and so on. The article also emphasises the inability of the international community to find effective enforcement mechanisms aimed at the timely detection and prevention of risky behaviour that may escalate into a crime. For this reason, the author appeals for strengthening international cooperation in criminal matters and using the full potential of criminal law as a preventive instrument.

Keywords: genocide, Bosnia and Herzegovina, genocidal intent, human rights in Europe, prevention.

Ludobójstwo w międzynarodowym prawie karnym w kontekście Srebrenicy – zapobieganie i bariery

Streszczenie

W 2025 roku minie 30 lat od zakończenia wojny w Bośni i Hercegowinie. W maju 2024 roku ONZ przyjęła rezolucję ustanawiającą 11 lipca Międzynarodowym Dniem Refleksji i Upamiętnienia Ludobójstwa w Srebrenicy w 1995 roku. W związku z tym, autor skupia się w niniejszym artykule na zjawisku ludobójstwa, które w literaturze często określane jest jako „zbrodnia zbrodni” ze szczególnym uwzględnieniem Bośni i Hercegowiny, tj. ludobójstwa w Srebrenicy. Analiza omawianego zjawiska opiera się na normatywnej definicji ludobójstwa wynikającej z Konwencji o zapobieganiu i karaniu zbrodni ludobójstwa z 1948 roku. Główne segmenty tekstu obejmują analizę ludobójstwa w kontekście prawnym i społecznym, przedstawienie koncepcji ludobójstwa i problemu niewłaściwego użycia tego pojęcia, a także kwestię negowania ludobójstwa, zaprzeczania zbrodniom oraz gloryfikowania osób prawomocnie skazanych za ludobójcze lub inne zbrodnie wojenne. Ludobójstwo popełnione w Srebrenicy w lipcu 1995 r., w którym zginęło od 7000 do 8000 osób, powinno być ostrzeżeniem dla ludzkości z jasnym przekazem zapobiegawczym, że ludobójstwo nigdy i nigdzie nie powinno się powtórzyć, a społeczność międzynarodowa podejmie wszelkie niezbędne działania w celu zapewnienia odpowiedniej ochrony. Znaczączą trudność w ustaleniu lub udowodnieniu istnienia ludobójstwa stanowi identyfikacja konkretnego ludobójczego zamiaru sprawcy jako unikalnej cechy tej zbrodni. Zbrodnia ludobójstwa jest rozpoznawalna po konkretnym ludobójczym zamiarze, będącym subiektywnym elementem tej zbrodni, co odróżnia ją od innych pokrewnych zbrodni międzynarodowych. Ponadto, intencją autora jest wskazanie znaczenia ustalania prawdy sądowej, ogólnej prewencji, potwierdzenia i promowania uniwersalnych wartości ludzkich, na których opiera się cywilizowany świat, w celu pojednania, współistnienia i zapewnienia pokoju, bezpieczeństwa, praw człowieka i wolności, rządów prawa, kultury dialogu, ludzkości itd. Artykuł wskazuje również na niezdolność społeczności międzynarodowej do znalezienia skutecznych mechanizmów egzekwowania prawa, których celem byłoby terminowe wykrywanie i zapobieganie ryzykownym zachowaniom, które mogą przerodzić się w przestępstwo. Z tego względu autor apeluje o wzmocnienie międzynarodowej współpracy w sprawach karnych i wykorzystanie pełnego potencjału prawa karnego jako instrumentu prewencji.

Słowa kluczowe: ludobójstwo, Bośnia i Hercegowina, zamiar ludobójczy, prawa człowieka w Europie, zapobieganie ludobójstwu

Genocide – social and legal context

The crime of genocide, by its nature, method of execution, destructive consequences and some other specifics (heinousness, brutality, cruelty, etc.), causes special attention of the scientific, professional and general public in the world. By its destructiveness directed against conventionally protected groups and the existence of specific genocidal intent as a subjective component of the perpetrator, this crime constitutes an autonomous and independent international crime, that is, a crime against humanity and values protected by international law. Therefore, genocide is specifically distinguished from other international crimes (crimes against humanity, war crimes, crimes against peace – aggression), and for good reason is often referred to in the literature of international criminal law and the practice of international justice as the “crime of crimes”. The drafting and adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, after the Second World War, represents a particularly significant international legal document. Genocide is not only a crime under general international law but is also the subject of an international legal prohibition imposed on States (Kreß 2006: p. 468).

The milestone that expresses the clear commitment of the international community to prevent this crime and to punish the perpetrators irrespective of their political, military, economic or other status or position in a particular country. The Convention also foresees the responsibility of the state parties for genocide, and the possibility that states, as subjects of public international law, initiate a dispute against each other before the International Court of Justice in order to determine responsibility for this crime (Gurda 2015: p. 37).

Particularly for this reason, this international legal document also contains a very important preventive message, since high-ranking political, military, police or other officials are not exempt from criminal prosecution, when there is a justified suspicion that they participated or contributed in any way to the commission of the crime of genocide (execution, complicity, order, command responsibility). “One of the most important issues of international criminal law is the principle of individual criminal liability, according to which those who commit international crimes are personally liable for them, regardless of their position or function” (Czeszejko-Sochacka 2022: p. 98).

The atrocities of World War II were the ultimate alarm, when the international community had to undertake certain activities in terms of drafting and adopting one such document (convention) that would send an important preventive but also repressive message (punishment) to the world. However, the Genocide Convention has certain shortcomings and omissions and the most noticeable are: the definition of genocide does not include cultural and economic genocide, does not include extermination on political grounds; no criteria have been established to define conventionally protected human groups; and the enforcement mechanism provided for in the Convention is not effective (Cassese 2005: p. 110–111).

The term genocide is attributed to the Polish jurist Raphael Lemkin who coined the term by combining the Greek word “genos”, meaning race, people, or tribe, with the Latin term “cide” (caedere, occidere) meaning to kill (Lemkin 1944: p. 79). This concept was originally much broader. Due to the lack of one voice and consensus on certain issues, it is narrowly limited to only certain genocidal acts, with the existence of genocidal intent directed against certain human groups, but not all human groups, since some other human groups (cultural, sexual, economic, political or other), are omitted from the list of protected human groups.

Even today, both theory and practice, recognises numerous questions, different understandings, attitudes and dilemmas that require adequate answers and solutions in order to properly understand and interpret the legal nature of the crime of genocide. Especially, when it comes to defining this crime, distinguishing it from other international crimes, determining the protected convention group and proving the existence of a subjective intention of the perpetrator (genocidal intent) by which this crime is recognizable. The common characteristics of international crimes sometimes lead to unnecessary comparisons, which is wrong from a legal aspect and causes numerous dilemmas and conflicts, when understanding the legal elements (Karović 2012a: p. 792). Despite all the efforts and dedication of the international community and the civilised world after the Second World War to prevent this crime, we have witnessed its repetition in an even more destructive form (Rwanda, Bosnia and Herzegovina – Srebrenica), which requires a critical review of the preventive-repressive capabilities, capacities and resources for the prevention of this crime. War destruction, systematicity, its organisation and the number of people killed, especially children and civilians, in the Gaza Strip (Palestine) clearly demonstrate that human destruction is on the increase, that crimes are still part of our daily lives and that they require an adequate response from the international community in terms of prevention and adequate punishment. It is quite clear that certain economic sanctions, political and diplomatic appeals or certain warnings are not adequate and proportionate. Therefore, the international community must demonstrate determination at the implementation level, in order to achieve the purpose of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, as well as the purpose of numerous other international instruments guaranteeing the protection of the fundamental human rights and freedom of every individual irrespective of his or her national, ethnic, religious or racial affiliation or other personal characteristics.

This means that the implementation plan must establish adequate preventive protection mechanisms aimed at the timely prevention of genocide, it is necessary to identify at an early stage all risky behaviors that, by their nature and destruction, can ‘develop’ into the crime of genocide. The area of criminal etiology requires special attention, i.e. causation, with the intention of eliminating or at least reducing etiological (causal) factors that directly or indirectly contribute to the occurrence of the crime of genocide. On the other hand, attention and reaction occurs mainly when on the social “scene”, i.e. in practice, we have very harmful and destructive consequences, when the conflict escalates in full capacity, which is completely wrong because in that case it is much more difficult to stop and bring certain destructive processes and events under control.

Conventional concept: defining genocide – (mis)use of the term

(a) Defining the term genocide

A correct understanding and interpretation of the definition, i.e. the conventional concept of genocide, is of the utmost importance for the correct legal qualification of certain events in the world, given that the concept of genocide is very often misused for certain political, ideological or other purposes, neglecting or ignoring its legal nature and definition. With the drafting and adoption of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948, this crime acquired its autonomy and independence as a specific international crime, since this convention determined the objective and subjective elements that constitute the legal construction of this crime. Prior to the drafting and adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, the crime of genocide existed as a subset of the crime against humanity. Genocide is the deliberate act of certain actions against members of a national, ethnic, racial or religious group with the aim of its complete or partial physical or biological destruction (Fabijanić Gagro, Škorić 2008: p. 1388).The crime of genocide consists of undertaking various actions with the aim of the total or partial destruction of a national, ethnic, racial or religious group (Babić 2011: p. 136). Considering its content, the feature of a passive subject and above all, the subjective component – the genocidal (destructive) intention of the perpetrator, genocide is often referred to as “the crime of crimes, or the most serious, so-called “capital crime” (Škulić 2020: p. 240). From the aforementioned definitions of genocide, which are identical in content, we note that they include the same determinants that make up the definition, namely: certain acts of execution, genocidal intent (total or partial destruction of a certain human group) and certain protected human groups as the object of this crime (national, ethical, religious or racial group). It is very important to emphasise a clear differentiation or distinction between genocide and other international crimes in order to avoid the misidentification of genocide with other crimes. In scientific and professional debates, there are different opinions and understandings regarding the legal qualification of certain events, especially in the part related to the standards of proof, the determination of the protected group, the determination of the subjective component (genocidal intent) of the perpetrator and other specificities of this crime.

The practice of international justice in specific criminal cases has established high standards of proof of the crime of genocide, in order to ensure the specificity of this crime in relation to other international crimes. Recognising that the Convention on the Prevention and Punishment of the Crime of Genocide is generic, and that it has not prescribed more precisely and clearly certain concepts relevant to a proper understanding of genocide, the practice of international justice has offered certain answers of a practical nature and has removed certain dilemmas and ambiguities.

The relatedness and certain similarities of the crimes against humanity and the values protected by international law (genocide, crimes against humanity, war crime, crime against peace – aggression) may be the cause of misclassification of the above-mentioned crimes, i.e. international crimes. In addition, in certain cases political and ideological bias and partiality make it very difficult to call a crime by its proper name and to define and qualify it properly. In practice, it is common for a party that participated, assisted or in any other way directly or indirectly participated in the organisation, planning or execution of genocide to deny or deny genocide with the clearly expressed intention of minimising a particular crime, concealing the real situation and not calling it by its proper name – genocide. The misuse of the term genocide in political circles often carries a strong emotional and political charge, in order to achieve certain political or ideological goals. The notion of genocide must be free of all political, ideological or any other prejudices, in order for certain events to be properly formulated, that is, legally qualified.

The correct legal formulation, i.e. the qualification of a certain event as genocide is of crucial importance, which means that in each specific case, two constitutive cumulative elements must be satisfied: objective element (act of execution) and subjective element (genocidal intent on the part of the perpetrator – dolus specialis).

The prescribed execution actions of this crime under the objective element are the following: „(a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group” (Article II of the Convention on the Prevention and Punishment of the Crime of Genocide 1948).

„The following acts shall be punishable: (a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide” (Article III of the Convention on the Prevention and Punishment of the Crime of Genocide 1948). The acts of execution are prescribed alternatively and for the criminal existence of this crime it is enough for the perpetrator to take one of the five prescribed acts, in addition to fulfilling the existence of a subjective element of the perpetrator that is manifested through the specific intention of total or partial destruction of a protected human group (Karović 2013: p. 96). The claim that the intended destruction must always be physical or biological is well supported in special literature.1 The Genocide Convention prescribes five alternatively defined acts of execution as an objective element of the crime of genocide, which clearly and unequivocally confirms that the acts we call cultural genocide and ethnic cleansing do not constitute acts of execution of this crime.

It is also important to emphasise the mass, systematic rape in war, often mentioned in the context of a possible act of genocide, since it leaves negative consequences for biological reproduction, but the conventional concept of genocide does not allow the extension of the existing definition. In addition to the above, another important victimological issue is the children of war rape in BiH, who deserve special attention in relation to the provision of adequate status. Regardless of the place of conflict, children are born as a result of war rape and experience stigmatisation in the form of social exclusion from the beginning of their birth (Czeszejko-Sochacka 2023: p. 93). Considering the above, there is a real need to reconsider the expansion of the catalog of genocidal acts, in order to prescribe systematic rape as an act, that is, the act of committing the crime of genocide. Through comparative analysis, we note that the crime of genocide is defined in the same way, as prescribed by the Genocide Convention, in Article 2 of the Statute of the International Criminal Tribunal for Rwanda, in Article 4 of the Statute of the International Criminal Tribunal for the former Yugoslavia, as well as in Article 6 of the Statute of the International Criminal Court.

Therefore, it is very important to establish a clear line of differentiation, i.e. of demarcation, between the crime of genocide and other related crimes against humanity and the values protected by international law, above all crimes against humanity, to understand properly the legal nature and the conventional concept of genocide.

The practice of international justice in its work has made a significant contribution to the proper understanding of the objective-subjective component of the crime of genocide, in order to avoid misinterpretations and understandings of this crime, especially when it comes to the act of execution (objective element), then the subjective component that manifests itself in the existence of genocidal intent on the part of the perpetrator, the determination of a protected human group for which criminal protection is prescribed (national, ethnic, religious or racial group) and other important issues that depend on the correct determination, i.e. the legal qualification of the crime of genocide.

The work and practice of the international judiciary has provided concrete answers to the aforementioned questions, given that these crucial or essential issues are very often discussed in the scientific and professional community, and there are conflicting or different opinions and positions, especially when it comes to proving the existence of a specific genocidal intention on the part of the perpetrator of this crime. Unfortunately, in Bosnia and Herzegovina, as well as in the countries of the former Yugoslavia, we very often observe biased attitudes and opinions aimed at achieving certain ideological or political goals.

(b) Denial of genocide and glorification of convicted persons

One of the concrete examples of the wrong approach and abuse of the term genocide is the denial of the crime of genocide in Srebrenica, which was committed in July 1995, a genocide committed in the heart of Europe, even though Srebrenica had a special and protected status by the United Nations. The youngest victim was Fatima Muhić, the baby-girl born on 13 July 1995, two days old (Dimitrijević 2021: p. 36). The abomination, brutality and cruelty of the Bosnian Serb army’s treatment of innocent civilians is now well known and documented.2 Bosniak women, children and old people were taken from the enclave,3 and 7000 to 8000 Bosnian Muslim men were systematically killed.4

In addition to the foregoing, the facts and judgments of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 confirming that genocide, the ‘crime of crimes’, was committed in Srebrenica, are knowingly and deliberately ignored or disregarded.

Denying the crime in Srebrenica certainly has very negative consequences, viewed from the aspect of general prevention but also reconciliation in the future, and the affirmation and promotion of universal human values, on which the civilised world rests (peace, security, culture of dialogue, human rights and freedoms, rule of law, etc.), especially bearing in mind that even certain individuals who have been legally convicted for committing international crimes are glorified (e.g. Ratko Mladić, Radovan Karadžić, etc.). In connection with Decision of the High Representative Valentin Inzko, No: 26/21 of 22.07.2021, the Law on Amendment to the Criminal Code of Bosnia and Herzegovina5 was adopted, more precisely the amendment of Article 145a, and new paragraphs (2) to (6) are added, which criminalise acts of denial of genocide or other international crimes and the glorification of persons legally convicted for the said crimes. The intention and purpose of passing the aforementioned law is of a preventive and repressive nature, i.e. to prevent the aforementioned activities or to sanction the persons who commit them in accordance with the prescribed procedure. It is worrying that young people, particularly in BiH, but also in surrounding region, on which the future and prosperity rest, are being imposed or ‘served’ with retrograde and anti-civilisational values such as denial of crimes and glorification of those convicted of international crimes.

It is well known that Ratko Mladić and Radovan Karadžić, as two most important high-ranking military and political figures, hid in Serbia for a long time, which certainly clearly expresses their real (non)commitment in terms of criminal prosecution and prosecution of persons suspected of committing genocide and other war crimes. The foregoing makes it quite clear that it is necessary to establish a culture of dialogue and to promote the process of reconciliation, but also to investigate consistently all cases of war crimes, so that all persons who are suspected of having committed a certain crime are prosecuted, regardless of their status, social position or any other characteristic. Therefore, when investigating, documenting and prosecuting persons who are suspected of having committed a certain crime, it is necessary to approach professionally, expertly, impartially and responsibly, from which it follows that a “supportive” relationship on the part of the general public is unacceptable. I note that I personally witnessed it several times, while passing through the municipality of Gacko, small Bosnian town in the Republic of Srpska entity, I noticed a mural with the figure of Ratko Mladic on the facade of the building, so at that moment I was just thinking about how the returnees to this place who suffered the horrors of war in the period 1992–1995 felt. Likewise, in other municipalities in the Republic of Srpska entity, graffiti or murals with the image of a legally convicted person were written in public places (Prijedor, Nevesinje, Kalinovik, Gradiška, Foča, etc.).

In this context, the Resolution on Srebrenica Genocide adopted on 23 May 2024 by the United Nations General Assembly also deserves special attention to several key aspects, namely:

declares 11 July as the International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica to be commemorated annually;

condemns „any denial of the Srebrenica genocide as a historical event and actions that glorify those convicted of war crimes, crimes against humanity and genocide by international courts”, including those responsible for the Srebrenica genocide” (United Nations 2024);

emphasises “the importance of completing the process of finding and identifying the remaining victims of the Srebrenica genocide” (United Nations 2024);

calls on all states to fully comply with their obligations under the Convention on the Prevention and Punishment of the Crime of Genocide;

requests the Secretary-General to establish informational programme entitled The Srebrenica Genocide and the United Nations;

calls on all UN Member States, “international and regional organizations and civil society, including non-governmental organizations, academic institutions and other relevant stakeholders to mark the International Day, including special commemorations and activities to commemorate and honor the victims of the Srebrenica genocide in 1995, as well as appropriate education and public awareness activities” (Borić 2024; see also: United Nations 2024).

(In)ability to prove the existence of specific genocidal intent

One of the fundamentally important issues when determining, or proving the existence of genocide, is determining or proving the existence of a subjective component that manifests itself in the existence of a specific genocidal intent on the part of the perpetrator of this crime. In addition to the act of execution, it is necessary to establish the existence of another subjective element of the crime of genocide, which is the specific genocidal intent, manifested in the intent of the perpetrator to destroy, completely or partially, a certain convention-protected human group. Usually, the crime was executed as a quite overt facet of State policy, particularly within the context of war or colonial conquest (Schabas 2000: p. 1). Theoretically, the situation is quite clear, but in practice, we have a number of questions and problems related to the complexity of establishing or proving the existence of genocidal intent on the part of the perpetrator. Therefore, it is necessary to prove in criminal (evidential) proceedings that the perpetrator, by undertaking a specific act, the perpetrator had the intention to destroy, in whole or in part, a specific protected group of people. When proving, it is very important to determine whether the perpetrator committed the act of execution against a specific person or persons as individuals or had the intention to destroy, completely or partially, a specific human group by undertaking these genocidal acts. The essential problem, when proving genocidal intent, is the impossibility of obtaining convincing evidence (e.g. orders, minutes of meetings, directives, activity plans, schedules, dispatches, etc.) which beyond reasonable doubt confirm the existence of a specific genocidal intent on the part of the perpetrator. The evidence obtained must be convincing, that is, it must confirm the existence of genocidal intent. In cases where the existence of specific genocidal intent by the perpetrator cannot be established or proven beyond a reasonable doubt, a legal reclassification from genocide to another crime, most commonly a crime against humanity is carried out. Thus, in the crime of genocide, the ultimate victim is a protected group (the object of attack) in accordance with the Convention, while in crimes against humanity the victims of the crime are individuals (Karović 2012b: p. 92).

The genocidal intent of the perpetrator as a subjective component makes the crime of genocide special, recognizable and unique compared to other international crimes. Precisely because of the existence of genocidal intent of the perpetrator, the crime of genocide, often referred to, in the literature as “the crime of crimes”, but at the same time, high requirements are prescribed in terms of meeting the standards of proof, so that a certain crime can be called, or legally qualified as genocide. Given that in certain criminal cases, it is impossible to provide or obtain direct evidence that directly confirms the existence of genocidal intent on the part of the perpetrator, the practice of international justice is to approach the proof of genocidal intent by indirect means. Before the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, in the cases Krstić, Jelisić, Sikirica, Nikolić, circumstances were identified, on the basis of which it is possible to draw a conclusion about the existence of genocidal intent: general context; criminal acts systematically directed against the same group; number of committed crimes; systematic targeting of civilians due to their membership in a protected group; repetition of destructive and discriminatory acts; the breadth and distribution of crimes committed; general political doctrine, from which the existence of genocidal intent can be established; the extent of destruction achieved or attempted; methodical in planning the killing; systematic killing and removal of corpses; discriminatory nature of the act (destruction or attacks on property, cultural, religious objects and other symbols belonging to members of the group); discriminatory intent of the accused, genocidal plan or policy (Karović 2014: p. 126).

When it comes to the genocide in Srebrenica, the genocidal intent was directed at the Bosnian Muslims as a conventionally protected human group whereby in July 1995, 7000 to 8000 male Bosnian Muslims were systematically killed. Therefore, in this case too, three essentially important elements are met: the act of execution (killing of male Bosnian Muslims), the genocidal intent and the protected group of people (Bosnian Muslims). The Appeals Chamber declares with full conviction that justice condemns, in appropriate wording, the enormous and lasting harm that has been done and calls the Srebrenica massacre by its true name: genocide (Judgement of the Appeals Chamber 2004: par. 37). Of particular concern is the fact that Srebrenica was publicly known as a “protected zone” of the United Nations Security Council, which certainly points to the responsibility of the international community that did not use all available capacities, resources and took all adequate actions to prevent or at least stop the act of genocide. The Security Council resolution declaring Srebrenica a protected zone states that it is a “zone which may not be attacked by armed force or subjected to any other hostile act” (UN Security Council 1993). However, despite the status of a protected zone, genocide was committed in Srebrenica, in the heart of Europe, at the end of the 20th century, with unfathomable human consequences that will forever remain the dark side of human history and the evidence of obvious weakness of humanity to oppose human evil – the crime of genocide. The inability of the international community to prevent international crimes (genocide, crime against humanity, war crime, crime against peace – aggression) is unfortunately still a key problem on the world stage with highly complex international relations. Considering the above, the key question is how to find and ensure adequate and effective enforcement mechanisms to implement international legal instruments (conventions, resolutions, etc.) and to ensure in practice adequate protection of human rights and freedoms of every individual, and to prevent the commission of international crimes in a timely manner. In addition to determining the individual criminal responsibility, the crime of genocide in BiH was also prosecuted before the International Court of Justice, in proceedings initiated in 1993 by BiH against Serbia and Montenegro on the basis of Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide, which was completed on 26 August 1993. In February 2007, Serbia and Montenegro were declared guilty of failing to prevent and punish the crimes of genocide in the area of Srebrenica, committed by the police and army of the Republic of Srpska against the Muslim population of Srebrenica.6

The foregoing actualizes a very important issue, which is the preventive role and obligation of the state in terms of timely recognition of risky behaviors and undertaking preventive – protective activities. The essential problem refers to the unwillingness of a certain state to react in a timely manner and use all available capacities and resources to prevent crimes in situations, where the state directly or indirectly supports certain destructive processes and activities. In practice, there are no adequate enforcement mechanisms that can impose on a particular state to respond in a timely manner and to comply consistently with its obligation to prevent the commission of international crimes.

Conclusions

Prevention of international crimes, i.e. crimes against humanity and international law, is an imperative of the civilised world. Drafting and adoption of international legal documents (conventions, resolutions, etc.) represents a significant step in the prevention plan, but the international community must find and provide adequate preventive and protective mechanisms at the implementation or executive level, in order to ensure the implementation and enforcement of the aforementioned documents in practice. The genocide in Srebrenica, the “crime of crimes” committed in July 1995, in the heart of Europe, in which between 7000 and 8000 people were killed, Bosnian Muslims as a conventionally protected human group, warns of the inability of the international community to react in a timely manner and take adequate measures and actions, and prevent the crimes. In addition to genocide, numerous war crimes and crimes against humanity have been committed in BiH, characterised by brutality, cruelty, abomination and human destruction.

If adequate enforcement mechanisms are not provided, then we conclude that many international legal instruments that affirm and promote the protection of human rights and freedoms of each individual have no practical application, and as such are not purposeful. Unfortunately, international crimes (genocide, crimes against humanity, war crimes, and crimes against peace) are repeated in even more destructive forms, targeting the most important goods and values (life, etc.). The international community has demonstrated its commitment to the protection of human rights and freedoms of every individual regardless of their national, ethnic, religious or racial affiliation but it is necessary in practice, in our daily lives, to implement the prescribed standards and at the executive level to show full consistency in terms of practical application.

Of particular concern is the fact that the crime of genocide is most often carried out under the direct or indirect action or participation of the state (support, assistance, etc.), which clearly confirms that in addition to individual criminal responsibility there is also the responsibility of the state. On the other hand, in modern criminal law, collective responsibility has been overcome and rejected. It is very important to emphasise that the meaning of the term genocide is misused in order to achieve certain political, ideological and other destructive goals. The concept of genocide must be understood in the context of the restrictive conditions prescribed by the Convention on the Prevention and Punishment of the Crime of Genocide from 1948, but it is also necessary to consider the possibility of redefining this concept in terms of expanding the catalog of genocidal acts as well as providing criminal legal protection to some other human groups (cultural, economic, sexual, etc.).

In accordance with the above-mentioned arguments, it is necessary to emphasise several key preventive guidelines:

developing the concept of raising awareness about the harmfulness of international crimes, especially genocide,

implementing public media campaigns that promote the protection of fundamental human rights and freedoms, especially minority human groups,

implementing educational seminars and workshops in schools and other educational institutions that promote universal human values and the prevention of genocide,

introducing the subject “Prevention of Genocide” into the educational system of Bosnia and Herzegovina,

affirming and promoting fundamental human rights and freedoms and protecting every individual, regardless of their national, ethnic, religious or racial affiliation.

Sadmir Karović – PhD, associate professor (Faculty of Law, University of Travnik), employed at the State Agency for Investigations and Protection (Bosnia and Herzegovina). An expert in criminal law scientific field, a participant in numerous international scientific conferences, seminars, etc. Permanent educator of judges and prosecutors at the Public Institution Center for the Education of Judges and Prosecutors of the Federation of Bosnia and Herzegovina. An author and co-author of more than 100 articles published in refereed scientific and professional journals in Bosnia and Herzegovina, Serbia, Croatia, North Macedonia, Brazil, Russia, Turkey and other countries. The last published co-authored monograph: Narcotic drug abuse in the criminal law of Bosnia and Herzegovina (Grafomark, Laktaši, 2022).

Sadmir Karović – doktor, profesor nadzwyczajny (Wydział Prawa, Uniwersytet w Travniku), zatrudniony w Państwowej Agencji ds. Śledczych i Ochrony (Bośnia i Hercegowina). Ekspert w dziedzinie prawa karnego, uczestnik licznych międzynarodowych konferencji naukowych i seminariów. Stały edukator sędziów i prokuratorów w Instytucji Publicznej Centrum Edukacji Sędziów i Prokuratorów Federacji Bośni i Hercegowiny. Autor i współautor ponad 100 artykułów opublikowanych w recenzowanych czasopismach naukowych i zawodowych w Bośni i Hercegowinie, Serbii, Chorwacji, Macedonii Północnej, Brazylii, Rosji, Turcji i innych krajach. Ostatnia opublikowana współautorska monografia: Narcotic drug abuse in the criminal law of Bosnia and Herzegovina (Grafomark, Laktaši, 2022).

References:

BABIĆ Miloš (2011), International Criminal Law, Banja Luka.

BORIĆ Faruk (2024), Bosnia-Herzegovina external relations briefing: Srebrenica resolution in the United Nations, Weekly Briefing, vol. 72, no. 4 (BH), April 2024, https://china-cee.eu/2024/05/14/bosnia-herzegovina-external-relations-briefing-srebrenica-resolution-in-the-united-nations/ (14.05.2024).

CASSESE Antonio (2005), International Criminal Law, Beograd.

Convention on the Prevention and Punishment of the Crime of Genocide (1948), Adopted by Resolution 260 (III) A of the U.N. General Assembly on 9 December 1948. Entry into force: 12 January 1951, http://www.preventgenocide.org/law/convention/text.htm (20.02.2025)

CZESZEJKO-SOCHACKA Katarzyna (2022), The impact of the jurisprudence of the International Criminal Tribunal for the former Yugoslavia on the development of the commander’s individual liability under international criminal law, „Przegląd Europejski“, vol. 2022, no. 4. DOI: 10.31338/1641-2478pe.4.22.1

CZESZEJKO-SOCHACKA Katarzyna (2023), Amendment to the act on civilian victims of war and the legal situation of children of war rape in Bosnia and Herzegovina, „Polityka i Społeczeństwo”, no. 1(21)/2023.

DIMITRIJEVIĆ Nenad (2021), Life After Death: A View From Serbia, in: Sead Turčalo, Hikmet Karčić (eds), Bosnian Genocide Denial and Triumphalism: Origins, Impact and Prevention, Sarajevo.

FABIJANIĆ GAGRO Sandra, ŠKORIĆ Marissabell (2008), The crime of genocide in the practice of international criminal ad hoc tribunals, “Zbornik Pravnog fakulteta u Zagrebu”, no. 58 (6).

GURDA Vedad (2015), The Prosecution of genocide in Bosnia and Herzegovina before international, domestic and national courts of other jurisdictions, in: Monumenta Srebrenica, Tuzla.

Judgment of the Appeals Chamber (2004), Prosecutor v. Radislav Krstić (Case No: IT-98-33-A), 19 April 2004, Hague, https://www.icty.org/x/cases/krstic/acjug/en/ (20.02.2025).

JUDGEMENT of the Trial Chamber (2004), Prosecutor v. Radislav Krstić, https://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e-1.htm (20.02.2025).

JUDGMENT of the International Court of Justice (2007), Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), 26 February 2007, Judgment, I.C.J. Reports 2007, https://www.icj-cij.org/sites/default/files/case-related/91/091-20070226-JUD-01-00-EN.pdf (26.02.2007).

KAROVIĆ Sadmir (2012a), Crimes against humanity and international law - common features, “Police and security”, vol. 21, no. 4.

KAROVIĆ Sadmir (2012b), The relationship between genocide and crimes against humanity, „Civitas”, no. 3.

KAROVIĆ Sadmir (2013), Criminal determination of the crime of genocide, „Pregled“, no. 2/2013.

KAROVIĆ Sadmir (2014), The complexity of determining the existence of genocidal intent, „Zbornik radova Pravnog fakulteta u Splitu“, vol. 51, no.1.

KREß Claus (2006), The Crime of Genocide under International Law, “International Criminal Law Review”, vol. 6 (4).

LAW on Amendment to the Criminal Code of Bosnia and Herzegovina (2021), “Official Gazette of Bosnia and Herzegovina”, no. 46/21.

LEMKIN Rafael (1944), Axis Rule in Occupied Europe, Carnegie Endowment for International Peace, Washington.

SCHABAS A. Wiliam (2000), Genocide in International Law, Cambridge University Press.

ŠKULIĆ Milan (٢٠٢٠), International Criminal Law, Beograd.

UN Security Council (1993), Resolution 819 (1993) adopted by the Security Council at its 3199th meeting, on 16 April 1993, S/RES/819 (1993), https://digitallibrary.un.org/record/164939?v=pdf (20.02.2025).

UNITED NATIONS (2024), General Assembly Adopts Resolution on Srebrenica Genocide, Designating International Day of Reflection, Commemoration, UN Meetings Coverage and Press Releases, Seventy-eighth Session, 82nd Meeting (AM), GA/12601, 23 May 2024, https://press.un.org/en/2024/ga12601.doc.htm (23.05.2024).

1 For example, in the Judgement of the Appeals Chamber in the Radislav Krstić case, par. 48 (case: IT-98-33-A).

2 For example, in the Judgement of the Appeals Chamber in the case of Radislav Krstić, par. 2 (Case: IT-98-33-A); Judgment of the Trial Chamber in the case of Radislav Krstić, par. 6 (available at www.icty.org).

See more in the Judgement of the Trial Chamber in the case of Radislav Krstić, par. 52; Judgment of the Appeals Chamber in the case of Radislav Krstić, par. 2 (available at www.icty.org).

4 See more in the Judgement of the Trial Chamber in the case of Radislav Krstić, par. 84; Judgment of the Appeals Chamber in the case of Radislav Krstić, par. 2 (available at www.icty.org).

5 Official Gazette of Bosnia and Herzegovina, no. 46/21.

See more in the Judgment of the International Court of Justice in the case Bosnia and Herzegovina v. Serbia and Montenegro from 26 February 2007, par. 438 and 450.

Received: 25.08.2024. Accepted: 23.02.2025.

Przegląd Europejski – European Studies Quarterly, ISSN: 1641-2478

vol. 2025, no. 1

Copyright © by Vedad Gurda, 2025

Creative Commons Attribution 4.0 (CC BY 4.0)

http://creativecommons.org/licenses/by/4.0/

DOI: https://doi.org/10.31338/1641-2478pe.1.25.2

Denial of genocide and other war crimes in Bosnia and Herzegovina and its impact on violation of human rights

Vedad Gurda, University of Tuzla (Tuzla, Bosnia and Herzegovina)

E-mail: vedad.gurda@untz.ba

https://www.orcid.org/0000-0001-5951-9833

Abstract

Since the war in Bosnia and Herzegovina (BiH) ended in 1995, hundreds of people have been found guilty by international, domestic and foreign courts, of various war crimes, including the most terrible crime of the genocide in Srebrenica. Nevertheless, in the past three decades, examples have been continuously registered in public sphere of denying, minimising and approving these crimes. It is especially dangerous that the denial of these crimes takes an institutional form. These denialist practices are primarily encountered in the BiH's entity Republika Srpska (RS) and neighbouring Serbia, as well as in Montenegro and North Macedonia. In 2021, the High Representative in BiH, imposed amendments to the Criminal Code of BiH, by which he criminalised the denial of genocide and other war crimes. Unfortunately, the criminalisation of denying these crimes did not stop the deniers. Although over 100 criminal charges have been reported, the Prosecutor’s Office of BiH has filed only two charges, but none of the reported persons have been convicted to date. This article criticises this kind of prosecution practice.

The article’s aim is to investigate the ways, in which certain political elites deny the genocide and other war crimes in BiH, as well as to analyse the prosecution of deniers before the BiH criminal justice authorities. The author attempts to answer the following research questions: (1) What are the dominant ways of denying genocide and other war crimes in the public sphere, and who are the most frequent deniers? (2) How has the denial of these crimes been criminalised, and do the competent courts in BiH prosecute the deniers? (3) What is the possible impact of denying these crimes on the human rights and freedoms of the victims, and does the incrimination and potential prosecution of deniers limit their freedom of expression? The research methods include analysis and synthesis, induction and deduction, as well as normative and dogmatic approach. At the end, the author concludes about the impact of processing genocide denial on human rights and freedoms, including the freedom of expression guaranteed by Art. 10 of the European Convention on Human Rights.

Keywords: Bosnia and Herzegovina, Europe, genocide denial, war crimes, freedom of expression, the Srebrenica genocide, violation of human rights

Zaprzeczanie ludobójstwu i innym zbrodniom wojennym w Bośni i Hercegowinie oraz jego wpływ na łamanie praw człowieka

Streszczenie

Od zakończenia wojny w Bośni i Hercegowinie (BiH) w 1995 r. setki osób zostało uznanych za winne popełnienia zbrodni wojennych przez sądy międzynarodowe, krajowe i zagraniczne, w tym najcięższej zbrodni, jaką było ludobójstwo w Srebrenicy. Mimo to, w ciągu ostatnich trzech dekad w przestrzeni publicznej stale pojawiają się przypadki zaprzeczania i usprawiedliwiania tych zbrodni. Szczególnie niebezpieczne jest to, że zaprzeczanie tym zbrodniom przyjmuje formę instytucjonalną. Zjawisko to najczęściej obserwuje się w Republice Serbskiej (RS) będącej częścią BiH oraz w sąsiedniej Serbii, a także w Czarnogórze i Macedonii Północnej. W 2021 roku Wysoki Przedstawiciel w BiH wprowadził zmiany do Kodeksu karnego BiH, które kryminalizują zaprzeczanie ludobójstwu i innym zbrodniom wojennym. Niestety, mimo wprowadzonych zmian, działania negacjonistyczne nie zostały skutecznie powstrzymane. Chociaż zgłoszono ponad 100 przypadków, Prokuratura BiH wniosła jedynie dwa zarzuty, ale żadna ze zgłoszonych osób nie została do tej pory skazana. Niniejszy artykuł krytycznie ocenia tego rodzaju praktykę ścigania.

Celem artykułu jest zbadanie sposobów, w jakie pewne elity polityczne negują ludobójstwo i inne zbrodnie wojenne w BiH, a także analiza ścigania negacjonistów przed organami wymiaru sprawiedliwości w BiH. Autor próbuje odpowiedzieć na następujące pytania badawcze: (1) Jakie są dominujące sposoby zaprzeczania ludobójstwu i innym zbrodniom wojennym w przestrzeni publicznej i kto jest najczęstszym negacjonistą? (2) W jaki sposób kryminalizowano zaprzeczanie tym zbrodniom i czy właściwe sądy w BiH ścigają negacjonistów? (3) Jaki jest możliwy wpływ zaprzeczania tym zbrodniom na prawa człowieka i wolności ofiar oraz czy oskarżenie i potencjalne ściganie negacjonistów ogranicza ich wolność wypowiedzi? Metody badawcze obejmują analizę i syntezę, indukcję i dedukcję, a także podejście normatywne i dogmatyczne. W konkluzjach autor podsumowuje rozważania na temat wpływu przetwarzania spraw dotyczących zaprzeczania ludobójstwu na wolność wypowiedzi gwarantowaną przez art. 10 Europejskiej Konwencji Praw Człowieka.

Słowa kluczowe: Bośnia i Hercegowina, Europa, zaprzaczanie ludobójstwu, zbrodnie wojenne, wolność słowa, ludobójstwo w Srebrenicy, łamanie praw człowieka

1. Research goal and methodology

The research goal of this article is to investigate the ways, in which certain political elites in the country and in the neighbouring countries deny the genocide and other war crimes in BiH, as well as to analyse the prosecution of deniers before the BiH criminal justice authorities.

The article attempts to answer the following research questions: (1) What are the dominant ways of denying genocide and other war crimes in the public space, and who are the most frequent deniers of these crimes? (2) How has the denial of these crimes been criminalised, and do the competent courts in BiH prosecute the deniers? (3) What is the possible impact of denying these crimes on the human rights and freedoms of the victims, and does the incrimination and potential prosecution of deniers limit their freedom of expression?

The research methods used in the article include analysis and synthesis, induction and deduction, as well as normative and dogmatic approach. In order to answer the research questions, online sources and the content related to the denial of these crimes were analysed, as well as the relevant criminal laws in BiH, certain decisions of the European Court of Human Rights, some EU legal acts, as well as relevant scientific literature. The analysis is essentially qualitative and descriptive in nature.

The article is structured as follows. The introduction discusses the prosecution of war crimes committed in BiH before the competent courts, whose decisions have confirmed that many denied crimes have actually been committed. The following three sections serve as the framework for providing the answers to each of the research questions. The end of the article brings the concluding considerations.

2. Introduction to processing war crimes

In 2025 year will be three decades since the end of the international armed conflict in Bosnia and Herzegovina (BiH), whose four-year duration was marked by serious violations of human rights, such as persecution of civilian population, deportation to camps, rape, destruction of property, devastation of religious buildings, etc. (Čekić 2018: p. 41). However, the most terrible consequences of this conflict, whose apocalyptic images of have become known worldwide, were mass and cruel murders, that is, taking people’s lives, in the numbers still not determined to this day.

The collaborators of the Research and Documentation Center Sarajevo in their study The Bosnian Book of the Dead determined that during the observed period in BiH the death or disappearance of a total of 95,940 citizens was documented, out of whom 62,013 were Bosniaks (64.63%), 24,953 were Serbs (26.0%), 8,403 Croats (8.75%) and 571 (0.59%) – persons of other nationalities. At the same time, the ratio of civilian (31,107 or 50.16%) and military victims (30,906 or 49.84%) among Bosniaks is approximate, while among the persons of Serbian nationality the number of military victims is much higher (20,775 or 83.26%) compared to civilian victims (4,178 or 16.74%). When it comes to the persons of Croatian nationality, a total of 2,484 civilians (29.56%) and 5,919 soldiers (70.44%) were killed while among the persons of other nationalities, 470 civilians and 101 soldiers were killed (Tokača 2012: p. 111–117).

On the other hand, Ewa Tabeau and Jan Zwierzchowski, the associates of the Demographic Unit, Office of the Prosecutor (OTP), in the International Criminal Tribunal for the Former Yugoslavia (ICTY) estimate that the number of war victims in BiH, i.e., the „minimum number of war-related deaths” is 104,732 persons, out of whom 68,101 (65%) are Bosniaks, 22,779 (21.7%) Serbs, 8,858 (8.5%) Croats, and 4,995 (4.8%) persons of other nationalities.1

A significant part of the aforementioned human loss as well as other previously mentioned consequences of the armed conflict in BiH took on the characteristics of individual war crimes, i.e., other crimes against humanity and values protected by international law. In the past period, these crimes were prosecuted before various international, foreign, and domestic courts in BiH.

At the international level, the aforementioned crimes were prosecuted before the ICTY, that is, since 2018, before the International Residual Mechanism for Criminal Courts (IRMCT), which represent the judicial bodies of the United Nations, which are (were) competent for trials for war crimes and other violations of international law committed on the territory of the former Yugoslavia, that is, on the territory of BiH, Croatia, Kosovo, Serbia, and North Macedonia. In the period from 1993 to 2017, during the operations of the ICTY before this international ad hoc tribunal, a total of 161 persons were accused or prosecuted, with as many as 113 (70.2%) were accused of war crimes committed on the territory of BiH. A total of 75 people were convicted of crimes committed in BiH, eight people were acquitted, the charges against seven people were withdrawn, while 12 accused persons died before or during the trial and the proceedings against them were suspended (Gurda 2020: p. 47). In the end, the conviction of the IRMCT Appeals Chamber dated 8 June 2021 marked the legal end to the proceedings against Ratko Mladić, the former commander of the Army of Republika Srpska (VRS),2 while the conviction of the same Chamber dated 31 March 2023 marked the legal ending of the proceedings against Jovica Stanišić and Franko Simatović, the two highly positioned officers of the Serbian State Security during the wars on the territory of the former Yugoslavia (Judgement of the Appeals Chamber 2023).

Out of the total number of people convicted before the ICTY and IRMCT of crimes committed in BiH, the military and civilian commanders of the VRS: Ratko Mladić, Radovan Karadžić, Radoslav Krstić, Zdravko Tolimir, Vujadin Popović, Drago Nikolić, and Ljubiša Beara were convicted of the crime of genocide as a „crime beyond all crimes”. They were directly committed by individual members of the VRS and the Ministry of Internal Affairs of Republika Srpska (MUP RS) against the Muslim (Bosniak) population in the area of Srebrenica, while the other defendants were found guilty of crimes against humanity, violation of the laws and customs of war or serious violations of the Geneva Conventions (Gurda et al. 2021a: p. 262).

Apart from international courts, war crimes committed in BiH were also prosecuted before the judicial bodies of the neighbouring countries Croatia and Montenegro, and to a somewhat larger number before the competent courts in Serbia (Gurda 2020: p. 29). Also, based on universal jurisdiction, these crimes were sporadically prosecuted before the courts of individual European countries. This refers to the proceedings conducted before the courts in Germany against Nikola Jorgić, Maksim Sokolović, Đurađ Kušljić, and Novislav Đajić (Karčić 2015: p. 59–66), in Austria against Duško Cvjetković, in Denmark against Refik Sarić, in Norway against Mirsad Repak, and in Sweden against Džeki Arklov and Ahmet Makitan (Klamber 2009; De Vlaming, Clark 2014: p. 172). It is worth pointing out that the members of the (para)military formations of Republika Srpska, Nikola Jorgić and Maksim Sokolović, were declared guilty by the final judgement before the German courts for committing genocide against Bosniaks in Doboj (Jorgić) and in Osmaci near Kalesija (Sokolović) (see: Karčić 2015: p. 59–66). Finally, Siniša Đurđić was prosecuted before the judiciary in the United States of America (Perviz 2021).

However, the largest number of crimes committed in BiH during the aforementioned international armed conflict were prosecuted before the domestic courts in BiH. The primary jurisdiction for prosecuting these crimes lies with the Court of BiH, i.e. its War Crimes Chamber. From the beginning of its work in 2005 until mid-2024, it prosecuted 562 persons accused of various types of war crimes.3 It is worth mentioning that about 15 former members of the VRS were convicted of committing genocide, as the most brutal crime committed against Bosniaks in the area of Srebrenica (Gurda et al. 2021b: p. 262). However, in addition to the Court of BiH, as the court operating at the state (national) level, from the beginning of 2004 until mid-2024, a similar number of defendants were prosecuted before the judiciary of the entities, that is, before the cantonal courts in the Federation of BiH (325), the district courts in Republika Srpska (217), which are a medium level of judicial authority in BiH, and the courts of the Brčko District of BiH (32).4

In view of these facts, it can be concluded that since the war ended, about 1,300 defendants have been prosecuted for war crimes committed in BiH before international, foreign and domestic courts, whereby some two thirds were found guilty, while approximately one third of them were acquitted (Gurda et al. 2021a: p. 260–267).

Finally, it should be noted that in addition to the criminal prosecution of natural persons before international, foreign and BiH courts, the crimes in question were also prosecuted before the International Court of Justice (ICJ), which functions as the principal judicial organ of the United Nations with the jurisdiction to resolves disputes between states as subjects to public international law. This refers to the case initiated by BiH in 1995 against the then Federal Republic of Yugoslavia (FRY), later the State Union of Serbia and Montenegro and, since 2006, the Republic of Serbia, for the violation of the Convention on the Prevention and Punishment of the Crime of Genocide. The case ended in 2007, with the court finding that the members of the army and police of Republika Srpska, which today represents an entity in BiH, committed genocide against the Muslim (Bosniak) population in Srebrenica in July 1995, and that the neighbouring country, the Republic of Serbia is not responsible for the directly commission or complicity in the commission of that heinous crime. However, the court decided that Serbia was responsible for violating the mentioned Genocide Convention, because this country did not take any measures to prevent the crime, nor did it prosecute the perpetrators of the crime, as it had an influence on the military and police forces of its compatriots in neighbouring Republika Srpska.5

Despite many legally adjudicated judgments, in which the court chambers found many defendants guilty of committing genocide, crimes against humanity or other war crimes, during the past three decades in BiH public various forms of denial, minimisation and approval of these crimes have been constantly identified. In this regard, both the factual background as well as the legal qualification of certain crimes are disputed, and consequently, the formal judicial truth is also denied.

3. Denial of genocide and other war crimes in a public arena

Denial of genocide and other war crimes is dominantly evident in the BiH entity Republika Srpska, but also in neighbouring Serbia. The parts of Bosnian Serb political elites spearhead this heinous anti-civilisation narrative, but many revisionist statements, lies and quasi-truths related to the crimes res legally ruled by the competent courts can also be found on the Internet. What is especially devastating is the fact that since 2010, as Karčić states, the denial of the Srebrenica genocide, as well as other crimes, has become much more institutionalised and systematic, both in Republika Srpska and in neighbouring Serbia (Karčić 2021: p. 60–61). The reason why some political elites as well as a significant part of the public in Republika Srpska and neighbouring Serbia, deny the war crimes ruled by court decisions is primarily related to the perception that international (ICJ and ICTY), as well as domestic courts, did not judge objectively, but were rather biased and tendentious while prosecuting the members of the Serbian people.6

It is a fact that more members of the Serbian ethnic community have been prosecuted before the ICTY and domestic courts in BiH than the members of the other two majority communities in BiH (Bosniaks and Croats). However, this is quite reasonable, bearing in mind the fact pointed out by objective Serbian academics as well, that „ethnic Serbs participated in almost all conflicts on the territories of the former Yugoslavia, that the Serbian side had significant military superiority and the most organised military formations, especially in BiH and Kosovo, and that they also committed the largest number of crimes, especially the most serious ones, including the Srebrenica genocide” (Dimitrijević et al. 2013: p. 39–41).

3.1. Denial of other war crimes

As stated by Džananović, the denial of certain crimes began as early as during the war. The first recorded case of denying and relativising the crime was related to the massacre in Sarajevo’s Vase Miskina Street, where on 27 May 1992, a grenade fired from a position of the VRS killed 26 and wounded 108 civilians. In the well-known Belgrade newspaper Politika on 28 June 1992, in an article entitled „The streets were mined”, the claims were made that this crime was not committed by the members of the VRS, but that it was „mining” and „self-shelling” made by the authorities of BiH (Podržavaju ga šire mase... 2023). It is the identical matrix of revisionism and negation action, which was done in the past, for example, by the head of propaganda of the Franco regime, claiming that it was not the Nazis, but the Basques, who destroyed their cultural capital Guernica.

A similar matrix of denial of crimes is evident in the case of two horrific crimes committed against civilians at Sarajevo’s Markale market. The first crime occurred on 5 February 1994, when 68 civilians were killed and 144 were wounded. The second crime took place on 28 August 1995, when 43 people were killed and 84 were wounded. Both crimes were committed by the members of the VRS by firing grenades at the civilian population at the market in the centre of Sarajevo. Stanislav Galić, the commander of the Sarajevo-Romanian Corps of the Army of Republika Srpska, was found guilty before the ICTY of the crimes at Markale, as well as of other crimes that included killings and spreading terror against the civilian population of Sarajevo, and was sentenced to life imprisonment (Judgement of the Trial Chamber of ICTY 2003: par. 256–296). Also, the wartime president of Republika Srpska, Radovan Karadžić, and the Commander of the General Headquarters of the VRS, Ratko Mladić, were found guilty before the ICTY of the Srebrenica genocide, as well as of other war crimes committed in BiH, including individual crimes (terrorism and illegal attacks on civilians) committed as a part of the campaign of sniper attacks and shelling of Sarajevo (Gurda 2022: p. 49–53).

However, only a few days after the first crime at Markale, the members of the highest Bosnian Serb political leadership, Radovan Karadžić in the newspaper “Glas Srpske” and Momčilo Krajišnik, the wartime president of the National Assembly of Republika Srpska in the Belgrade newspaper “Borba”, denied the responsibility of the VRS for these crimes. Karadžić even monstrously claimed that “Muslims were killing themselves” (Karović 2013: p. 96–97). Unfortunately, not even three decades after these horrific crimes and the legally binding decisions of The Hague Tribunal, which established the real and legal nature of these crimes as well as individual criminal responsibility, the political leader of the Bosnian Serbs and the current president of Republika Srpska, Milorad Dodik, denies the responsibility of the “Serbian side”, that is, the fact that these crimes were committed by individual members of the VRS (Kovačević 2024).

An identical matrix of revisionist activities is also related to the crime committed on May 25, 1995 at the site “Kapija” in the centre of Tuzla, the second largest city in the Federation of BiH. A grenade fired from the position of the VRS killed 71 and wounded more than 173 civilians, whose average age was 24. The VRS general Novak Đukić was convicted of this crime before the Court of BiH. In the meantime, he fled to neighbouring Serbia and is currently at large (Karović Babić 2023: p. 343–346). In relation to this crime, the Serbian author Ilija Branković published a book in 2017, and then in 2019, another book titled Tuzlanska kapija – directed tragedy. In these books, in a perfidious manner he disputes the historical and legally established facts related to this terrible crime and its executors. It is particularly devastating that these books were published and promoted under the auspices of the Ministry of Defense of Serbia, which points to an institutional form of denying crimes, which was strongly criticised by the Council of Europe Commissioner for Human Rights, Dunja Mijatović (Kritike Srbiji 2019). However, such an institutional approach to denying this crime is nothing new, bearing in mind that as early as in 2009, the then (and current) President of Republika Srpska Milorad Dodik declared that in this particular case it was a „forced explosion” and a staged crime, stating that „a day earlier in the training center of the Muslim army in Živinice, a significant number of young men were killed by an explosion”, and that their bodies, according to his monstrous claims, were brought from the nearby town of Živinice to Tuzla, where the „situation was staged” related to the crime at „Kapija” (Kahrović 2009).

3.2. Denial of genocide as the highlight of denialist narrative

The public arena offers numerous examples of denial of other war crimes committed in BiH, as well as the glorification of their perpetrators. Undoubtedly, the largest number of cases of denial is related to the denial and minimisation of the Srebrenica genocide. According to the results of the study carried out by the associates of the Srebrenica Memorial Center over the last few years, 241 cases were registered of the Srebrenica genocide denial in 2021, 681 cases in 2022, and 90 such cases in 2023. Milorad Dodik, the president of the BiH entity Republika Srpska, Branimir Kojić, the president of the Organization of Families of Captured and Killed Fighters and Missing Civilians from Srebrenica, and Miodrag Linta, the member of the Serbian National Assembly stand as the main deniers of the genocide (Džananović et al. 2023: p. 21–22).

Denial of the Srebrenica genocide takes place in several forms or stages, as follows:

a) Denial of the legal nature of this heinous crime, by disputing the fact that the atrocities committed in the area of Srebrenica during July 1995 are a crime of genocide is the first form. Rather, it is claimed that they are a „crime” or a „terrible crime”. This denialist approach represents the minimisation and trivialisation of genocide in a „qualitative sense” and as such it is used by the majority of the ruling political elites as well as by a significant part of the general public in Republika Srpska and neighbouring Serbia, and sporadically in Montenegro as well.

Serbian President Aleksandar Vučić often states that a „horrific crime” happened in Srebrenica, but denies that this crime can and should be legally qualified as a „crime of genocide”. While explaining why he, as the personification of the current government in Serbia, would find it unacceptable to admit that the crime in Srebrenica, despite the judgments of the ICJ and ICTY, is a crime of genocide, he states that it would be then realistic to expect demands for the abolition of Republika Srpska, since some would claim that it was created as a result of genocide and that as such it has no right to continue to exist. In addition, according to his statements, requests may be expected from the BiH authorities to Serbia and Republika Srpska for the payment of war reparations (Vučić: U Srebrenici se desio stravičan zločin... 2019). Apart from Vučić, the former Prime Minister, and the current President of the National Assembly of Serbia, Ana Brnabić (Brnabić: „Ratni zločin se desio, ali nije bio genocid“ 2024), as well as the Vice President of the Government of Serbia Aleksandar Vulin in a similar manner denied the Srebrenica genocide on multiple occasions (Vulin poručio Stanu: Genocida u Srebrenici nije bilo 2024).

Also, in neighbouring Montenegro, there have been cases, when high-ranking Serbian politicians denied the Srebrenica genocide. Vladimir Leposavić, the former Minister of Justice, Human and Minority Rights in the Government of Montenegro,7 Jovan Vučurović, the member of the Parliament of Montenegro, and Marko Kovačević, the mayor of Nikšić, all denied the Srebrenica genocide (Mehmedović et al. 2022: p. 31). Finally, a certain number of high-ranked politicians from the BiH's entity Republika Srpska constantly deny the legal nature of the Srebrenica.

b) Reduction in the number of the Srebrenica genocide victims as another form of its denial. This is actually the „quantitative reduction”, that is, a sort of minimisation of the scale of the Srebrenica genocide. In this regard, the Bosnian public accepted the concept that 8,372 people were killed in the genocide in the area of Srebrenica.8 The International Commission of Missing Persons (ICMP) operates with similar figures; according to its data over 8,000 Bosnian Muslim men and boys were killed in this area.9 Finally, based on the evidence presented in court proceedings before the ICTY, it was established that during the Srebrenica genocide, around 7,000 people were killed.10

However, despite the judicially established facts and forensic evidence, institutional efforts are made in Republika Srpska to reduce the number of victims of this genocide. In this context, according to the 2021 Report by the Independent International Commission of Inquiry on the Sufferings of All Peoples in the Srebrenica Region between 1992 and 1995,11 whose findings were verified by the National Assembly of Republika Srpska in April 2024, the number of victims cannot exceed 3,715 people (Mehmedović et al. 2022: p. 31), while this commission believes that the crime committed in the area Srebrenica is not the crime of genocide. On the other hand, Siniša Karan, the minister in the Government of Republika Srpska, besides denying the genocidal nature of the crimes in Srebrenica, claims that the number of Bosniaks (Muslims) killed in Srebrenica is 2,000 (Karan opet negirao genocid 2024). Additionally, some Serbian (quasi) scientists, such as Marko Atlagić and Aleksandar Martinović, completely ignoring the previously mentioned data and estimates of the ICMP and the findings of the ICTY, claim that the number of Muslim victims in Srebrenica and its surroundings is between 800 and 1,200 (Atlagić, Martinović 2021). Also, the President of Republika Srpska, Milorad Dodik, a few months ago, went one step further in minimising this crime, stating that no one was killed in Srebrenica on 11 July 1995 (Dosad najdrskiji istup lidera bosanskih Srba 2024). Finally, it should be noted that the President of the Republic of Croatia, Zoran Milanović, on two occasions in a certain way trivialised the Srebrenica genocide in a certain way (Tužiteljstvo BiH radi... 2022).

Despite the fact that over 6,500 victims of the Srebrenica genocide have been buried in the Memorial Center in Potočari (Srebrenica), after the forensic identification of their remains, and that about 300 victims of the Srebrenica genocide have been buried at other graveyards, a certain part of the public in the BiH's entity Republika Srpska denies those figures, that is, they do not believe that the genocide victims were actually buried there. Given that some of the political and intellectual elites in Republika Srpska promote such narratives, some Republika Srpska citizen actually believe that the dead Bosniak victims were „brought from other places to be buried there” or that „the coffins are simply empty” (Simic 2024: p. 6).

c) The third form of denial of the genocide in Srebrenica, or more like a new phase in committing this crime, is the glorification of the crime and the legally adjudicated war criminals, as well as their criminal heritage, and the ridicule of the victims of the genocide. Contemporary literature on genocide in BiH marks this phase in committing genocide as „triumphalism”, i.e. the glorification of the genocidal legacy, the term coined a few years ago by the Bosnian-Australian scientist Hariz Halilović (Halilovich 2017).12

Namely, as a result of the mythomaniacal denial of the Srebrenica genocide by a part of the Serbian political elite, individuals within the general population in Republika Srpska and Serbia started glorifying the crime of the Srebrenica genocide in public and celebrating the convicted criminals as national heroes. In this regard, banners with the monstrous message „Knife, wire, Srebrenica” were displayed in football stadiums in Republika Srpska and Serbia, for which FIFA fined the Football Association of Serbia in 2005 (Šunjić 2022). Unfortunately, this slogan did not become a part of the past, because in 2023 the fans of the football club Vojvodina from Novi Sad at a match in Novi Pazar shouted this slogan together with the name of Ratko Mladić, the former commander of the VRS (U srcu Sandžaka... 2023).13 In parallel, over the last decade, recordings of folk celebrations appeared on the Internet, where a terrible song was sung: „Srebrenica, you are so dear to me, yes, God grant it happened three times” (Bursać 2020), which very quickly became widespread on the Internet. It is particularly scandalous that at the beginning of 2022, a video appeared, in which police officers and members of the Ministry of Internal Affairs of Serbia in Priboj sang this infamous song during a celebration (Skandalozno...2022).

In addition, glorification of the former president of Republika Srpska, Radovan Karadžić, and especially the commander of the VRS, Ratko Mladić is rather evident in Republika Srpska and neighbouring Serbia. They are praised as national Serbian heroes, despite the fact that both were convicted before the ICTY for the Srebrenica genocide whereby Mladić personally commanded the military operation of the VRS taking Srebrenica in July 1995. This glorification is manifested in printing t-shirts,14 setting up billboards, creating murals with their faces on residential buildings, etc.15 This is not surprising, considering that the competent authorities institutionally encourage the creation of a broader picture and general perception of them as national heroes.16

However, the most heinous form of denial and trivialisation of the Srebrenica genocide is undoubtedly its ridicule. A few months ago, Nenad Nešić, a Serbian politician and the current Minister of Security of BiH, told a monstrous joke minimising the victims of genocide during his guest appearance on a Belgrade TV programme (Nešić sramotno ismijavao žrtve genocida u Srebrenici 2024). Even more heinous was the speech of Ivan Stojiljković, the president of the Democratic Party of Serbs in North Macedonia and a member of the parliament of this country. This April on social media he shamefully characterised the Srebrenica genocide as a „necrophilia Disneyland“ (Predstavnik Srba u Makedoniji genocid u Srebrenici nazvao „nekrofilskim diznilendom“ 2024). Finally, the morbidity of the denialist narrative of some Serbian politicians is perhaps most vividly reflected by the fact that the undisputed political leader of the Bosnian Serbs during the last two decades and the current president of Republika Srpska, Milorad Dodik, in mid-2023 at a meeting of representatives of the political parties currently in power at the national level in BiH, cursed the genocide in Srebrenica (Helez: Dodik je opsovao genocid u Srebrenici 2023).

Additionally, due to the institutional and systematic denial of the Srebrenica genocide by some of the Serbian political and intellectual elites in Republika Srpska and neighbouring Serbia, which is wholeheartedly supported by the regime media, and has become a part of „popular culture”, for a significant part of the public this denialist opinion has become the heritage. It is particularly devastating that the young generation has been indoctrinated with these ideas. It is therefore not surprising that on 11 July 2023, the day of the funeral and burial of the newly identified victims of the Srebrenica genocide, two female students of the Faculty of Criminalistics, Criminology and Security Studies of the University of Sarajevo posted the pictures of Ratko Mladić, the criminal convicted of the Srebrenica genocide, on their Instagram profiles with the message: „Condemned to immortality. You were and will remain our hero. Long live general”.

Bearing in mind that this happened on the day of the 28th anniversary of the Srebrenica genocide, such an announcement caused a painful revolt by the families of the victims, their fellow students, and a significant part of the BiH public. Certain Serbian political leaders came to their defence, including the President of Republika Srpska, Milorad Dodik, who pointed out that these female students were exposed to an unprecedented lynching „because of the opinion they expressed”. In parallel with that, Dodik, in cooperation with Aleksandar Vulin, then the director of the Security and Information Agency, and today’s vice president of the Government of Serbia, arranged for these students to continue their studies at the National Security Academy of Serbia in Belgrade, at the expense of the Government of Serbia (Na poziv Aleksandra Vulina... 2023). These facts demonstrate that the representatives of the authorities of Republika Srpska and Serbia not only deny the genocide, but also officially reward its deniers (Simic 2024: p. 12).

4. Criminalisation of denial of genocide and other war crimes

In September 2014, the Parliament of the Federation of BiH adopted the amendments to the Criminal Code (CC) of this BiH entity, criminalising denial of genocide as a special (the most severe) form of the criminal offence of „provoking national, racial, and religious hatred and intolerance” (Article 163 of the CC FBiH).17 The basic form of this criminal offence is committed by „Whoever publicly provokes or incites national, racial or religious hatred, dissension or intolerance among the constituent peoples and others living in the Federation” (Art. 163 par.1 of the CC FBiH), while the amendments from 2014 stipulate three months to three-year imprisonment for whomever commits this criminal offence „by publicly denying or justifying genocide, crimes against humanity or committed war crimes determined by a final decision of the International Court of Justice, the International Criminal Court for the former Yugoslavia or the domestic court.”

This legislative novelty of the Parliament of the Federation of BiH was praiseworthy, but not particularly significant, given that the aforementioned law is applied in the territory of this entity, where only sporadic cases of denial of war crimes were registered during the previous years. The dominant practice of denialism is registered in another BiH entity, Republika Srpska, whose National Assembly members did not show political will to vote on such amendments to the criminal code. This was to be expected, bearing in mind the fact that precisely the representatives of the official authorities in Republika Srpska were the most ardent proponents of denialism, and that by adopting such amendments to the Criminal Code, they would actually criminalise themselves.

As a result, the representatives of the political parties from the Federation of BiH initiated on several occasions similar or identical amendments to the Criminal Code of BiH in the Parliamentary Assembly of BiH, which stands as the umbrella parliamentary body at the national/state level. However, the parliamentary representatives from Republika Srpska used the entity’s right to veto and prevented the adoption of amendments that would criminalise the denial of genocide and other war crimes (Išerić et al. 2022: p. 12–15). However, given that the policy of denialism was gaining momentum, the High Representative in BiH, Valentin Inzko, in 2021, in accordance with the powers vested in him, imposed amendments to the CC BiH,18 which, among other things, criminalised certain denialist practices as a special form of criminal offence of „provoking national, racial and religious hatred and intolerance” (Art. 145a of the CC BiH).

In this regard, the provisions of Art. 145a par. 3 of the CC BiH stipulate that „Whoever publicly approves, denies, grossly trivializes or tries to justify a crime of genocide, crime against humanity or a war crime established by a final adjudication pursuant to the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945 or by the International Criminal Tribunal for the former Yugoslavia or the International Criminal Court or a court in Bosnia and Herzegovina, directed against a group of persons or a member of such a group with regard to race, colour, religion, descent or national or ethnic origin, when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group, shall be punished by imprisonment for a term between six months and five years” (version amended by: HR’s Decision... 2021). Apart from this most significant incrimination, which criminalises public denial, minimisation or justification of genocide, crimes against humanity or war crimes ruled by final judgments of certain courts, the amendments also criminalised giving recognition to persons legally convicted of war crimes, i.e., naming public buildings, institutions and settlements/cities by such persons, as well as some other activities (Nurkić 2021: p. 143–151; Hasanović 2021: p. 212–218).

Even though since the adoption of these amendments, over the last three years, about a hundred criminal charges have been filed for denying war crimes, the vast majority of which relate to the denial of the Srebrenica genocide, no one has been convicted to date before the Court of BiH for this criminal offence, i.e. incrimination.19 Moreover, until half a year ago, no one was charged with this criminal offence by the Prosecutor’s Office of BiH. In the majority of cases, the Prosecutor’s Office issued orders not to conduct an investigation, because there are no reasonable grounds that this criminal offence was committed. Such prosecutorial decisions caused disappointment and anger among the families of the victims and a part of the general public, as quite a few cases referred to denying or minimising the Srebrenica genocide in the media, which the entire BiH public could witness. The prosecutors mainly explained their decisions stating that it is not disputed that the reported persons verbally denied the genocide, but that this was not done „in a way that could incite violence or hatred directed against (members of) a national, racial or religious group”, which together with the previous action represents an essential feature of the observed criminal offence.20

Such prosecutorial practice can be justifiably criticised as the characteristic of the given criminal offence is the fact that the denial act was carried out in a way that objectively „might have provoked” violence or hatred, rather than it „provoked” violence or hatred. It can be concluded that the consequence of this criminal offence is an abstract danger, during which recognition it is extremely important to appreciate its context, that is, the personality and status of the denier. When denialist statements are made by a person holding a significant position, as was the case of Radovan Kovačević, who was the spokesperson of the SNSD, the largest political party in Republika Srpska and adviser to Milorad Dodik (Grebo 2023) or the President of Republika Srpska Milorad Dodik himself, as the most prominent figure and political authority in this entity, the existence of this abstract danger is much more certain. This is especially true if repeated denials of genocide are committed, such as the case of Milorad Dodik, who, since the adoption of the aforementioned amendments to the CC BiH until the end of April 2024, according to the research by the Balkan Investigative Reporting Network (BIRN BiH), denied the Srebrenica genocide at least 23 times (Husarić Omerović 2024), which is why several criminal charges were filed against him at the Prosecutor’s Office.

A small sign of encouragement can be seen in the fact that the Prosecutor’s Office of BiH filed the first two indictments for this criminal offence in the first quarter of this year, which were confirmed by the court.21 However, bearing in mind the increasingly frequent denial of genocide and other war crimes in the public discourse, which is certainly encouraged by this practice of the prosecutors of the mentioned Prosecutor’s Office, in order to prevent additional victimisation of the victims of these crimes, as well as inter-ethnic hatred, which may cause much more serious consequences, this Office would have to redefine its current rather rigid practice of identifying the existence of characteristics of the analysed criminal offence. As it is not certain, we appreciate that the High Representative (OHR) should again amend the CC BiH and redefine the characteristics of this criminal offence. Indeed, the legal description of the analysed crime imposed by the High Representative in 2021 relies to a significant extent on the provisions of the Council Framework Decision of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law (The Council of the European Union 2008). However, according to the reports of the European Commission, not even individual member states of the European Union (EU) had implanted in their national legislation all the provisions of this decision. In this regard, for example, France, Italy, Latvia, Luxembourg, and Romania have not incorporated into their criminal laws the requirement that denial must be done in a way that provokes violence or hatred (Memišević 2015: p. 158). Therefore, it would similarly pro futuro make sense to redefine the characteristics of the analysed criminal offence, at least on a temporary basis, in order to facilitate the prosecution of deniers of genocide and other war crimes.

Such changes to the CC would indeed mean a temporarily step back in the process of harmonising domestic legislation with the EU acquis communautaire, but they would make a significant step forward in the process of protecting the rights of victims, as well as the general civilisational values, on which the EU rests. One of these values is the obligation to respect the rule of law and final court decisions, including the decisions of various international and national courts that confirmed the committing of many war crimes in BiH, including the most terrible crime of genocide in Srebrenica. Finally, a part of the EU acquis is also the European Parliament resolution on the Srebrenica commemoration (2015/2747(RSP)), which confirms that more than 8,000 Muslim men and boys were killed in the horrific crime committed by „Bosnian Serb forces under the command of General Mladić and paramilitary formations” in the Srebrenica area, and that international courts legally qualified that crime as a crime of genocide (European Parliament 2015).

5. Potential impact of denial on human rights violations

The denial of genocide and other war crimes in BiH can undoubtedly have a certain impact on the violation of fundamental human rights and freedoms. This is because the denialist discourse represents the most difficult form of provoking national and ethnic hatred and intolerance, which, at least on an abstract level, can be the driver of various criminal activities, whose consequences are reflected in the violation of these rights and freedoms. In this regard, in the BiH entity Republika Srpska, since the end of the war, there have been continuous attacks on Bosniak returnees, including the attacks on their lives, physical integrity, property, and other legal assets. According to the data of the Association of Genocide Victims and Witnesses, in the period from 1996 to 2022, 13 returnees were killed on the territory of Republika Srpska, 22 returnees were seriously wounded, 1,020 returnees were the victims of physical attacks, while 3,500 returnees suffered some kind of verbal attack, most often based on their nationality (Huseinović 2023). The last in a series of such attacks was registered in the middle of last year. In August 2023, four police officers from MUP RS at the police station in Osmaci harassed and beat a fourteen-year-old boy of Bosniak nationality, Ajdin Jusić. For this crime charges were pressed against them at the beginning of this year by the competent prosecutor’s office (Radio Sarajevo 2024). Also, in June 2023, in the neighbouring municipality of Bratunac, three young men of Serbian nationality physically attacked, using a knife, a nineteen-year-old young man of Bosniak nationality, Osman Mehanović, inflicting serious physical injuries on him, with terrible threats: „We will slaughter you like we slaughtered you in 1995” (Ovčina 2023).

Bearing in mind that these criminal events are undoubtedly hate crimes,22 we cannot rule out that, at least on an abstract level, the denialist and xenophobic statements of the President of Republika Srpska Milorad Dodik and other members of his denialist political milieu contributed to the development of national and ethnic hatred that fueled the young men who committed the criminal offence in the area of Bratunac. This is primarily because young people, due to being immature, are extremely susceptible to various ideological influences, especially if such influences come from national political leaders, who spread destructive hate speech and xenophobia on a daily basis.23

Finally, the question arises whether the very criminalisation of genocide denial represents a violation of certain rights and freedoms of persons who make denialist statements, more specifically the freedom of expression proclaimed in Art. 10 of the European Convention on Human Rights (ECHR). After the High Representative imposed the amendments to the CC BiH, which criminalised the denial of genocide and other war crimes, the representatives of the ruling political parties in Republika Srpska strongly opposed the act, claiming that these amendments to the CC BiH introduce a “speech crime” and potentially restrict the freedom of thought and expression (Nurkić 2021: p. 142).

It is worth emphasising that freedom of expression is not freedom of the absolute nature and it belongs to the category of the so-called qualified convention rights and freedoms, which states may limit pursuant to Article 10 par. 2 of the ECHR, in order to enable the realisation of other rights and freedoms. In this regard, many European countries through their (criminal) laws criminalised denying, trivialising or justifying the Holocaust, genocide, and other (war) crimes (see more: Pruitt 2017: p. 270–281), legally limiting the freedom of expression of their citizens. Based on these legal provisions, several dozen persons were prosecuted and convicted before the competent national courts in the past few decades for denying or trivialising the Holocaust. They filed appeals with the European Court of Human Rights (EctHR), claiming, inter alia, that these convictions were an alleged violation of their freedom of expression defined by the provisions of Art. 10 of the ECHR. In most cases, the ECtHR, referring to the provisions of Art. 17 of the ECHR declared the appeals prima facie inadmissible and rejected them without entering into their substantive merits,24 as such denialist speech is the abuse of rights.25

Such conduct of the ECtHR related to (criminal) convictions for denying the Holocaust, which, as this court has often stated, represents a clearly established historical fact. However, in the case of Doğu Perinçek vs. Switzerland, which referred to the denial of the Armenian genocide, the ECtHR decided in a fundamentally different way. In the specific case, the Court ruled on the appeal of the Turkish politician Doğu Perinçek, who claimed at three public events in Switzerland in 2005 that the genocide committed by Turkey against the Armenians was nothing more than an „international lie”. Due to the aforementioned statements, Perinçek was prosecuted before the Swiss judiciary and convicted of the criminal offence of racial discrimination (sw. Rassendiskriminierung). After exhausting all legal remedies before the Swiss judiciary, he turned to the ECtHR claiming, among other things, that the mentioned criminal conviction violated his freedom of expression, proclaimed by the provisions of Art. 10 of the ECHR. The ECtHR, in this specific case, in its decisions in 2013 and 201526 court did not declare the appeal inadmissible based on the provisions of Art. 17 of the ECHR but it entered into a discussion on its substantive merits. The Court found that the Swiss judicial authorities violated the appellant’s freedom of expression by the aforementioned criminal conviction. Several positions of the Court from the relevant decisions are significant, which the ECtHR took in assessing whether there was a „justified social interest” for the Swiss judiciary to limit the appellant’s freedom of expression by its criminal convictions in pursuant to the provisions of Art. 10 par. 2 of the ECHR.

The first is that the appellant did not deny the historical event, but its genocidal legal qualification, which according to the ECtHR does not constitute a statement that aims to incite violence or hatred, which is why the Court did not prima facie declare the appeal inadmissible. In addition, the Court, analysing the subtle balance between the protection of the appellant’s freedom of expression and the dignity of the victims’ families, concluded that Switzerland failed to prove the social need to punish such denialist statements, that is, the social need to limit the freedom of expression. In this regard, the Grand Chamber emphasised that the criteria for the Holocaust cannot be applied in this particular case, because it is an event that happened 90 years ago in the Ottoman Empire, and it is discussed in Switzerland (Herceg Pakšić 2017: p. 243–247). The third position is related to the fact that the Swiss courts in their decisions claimed that the crime committed by Turkey against the Armenians, both in Switzerland and globally (generally), is legally qualified as a crime of genocide. The ECtHR did not accept such a standpoint emphasising in its decisions that until then only about 20 countries recognised this crime as genocide, and concluded that there is no general (global) consensus about it, which would represent the basis for the national (Swiss) condemnation of the crime. Finally, as one of the reasons for its decision on the violation of the appellant’s freedom of expression, the Court cited the fact that the context in which his statements were made was not marked by heightened tensions or a special historical overtone in Switzerland (Judgment of Grand Chamber 2015: par. 280).

Even though these decisions of the ECtHR are criticised by some authors (Thus 2015; Basak 2019; Wojcik 202027),28 the presented criteria and positions viewpoints suggest that if a denier of the Srebrenica genocide was declared guilty before domestic courts of such an act, such conviction would not constitute a violation of his freedom of expression, bearing in mind that it is: (a) the genocide on which a global consensus has been reached, given that it was judged by international courts, and recognised as such by the resolutions of the UN General Assembly and the European Parliament; (b) the genocide that was committed a only a couple of decades ago on the territory of the state in which it is denied; (c) in the post-conflict Bosnian society the discussions about the genocide happen on a daily basis, which leads to serious inter-ethnic tensions.29

Conclusions

Almost three decades after the end of the international armed conflict in BiH, despite the verdicts of international, foreign and domestic courts that confirmed the committing of many war crimes, including the most terrible crime of genocide in Srebrenica, examples of denial of these crimes are constantly registered in the public discourse. Denialist statements are encountered daily on the Internet and social media, but it is especially dangerous that the denialist practice is encouraged and inherited by parts of the Serbian ruling political elites in the BiH entity Republika Srpska as well as in neighbouring Serbia, and sporadically in Montenegro and North Macedonia. Although other legally adjudicated war crimes are also denied, the highlight of the denialist narrative is the denial of the Srebrenica genocide in Srebrenica, spearheaded by the current president of Republika Srpska, Milorad Dodik.

In order to prevent this, the Parliament of the Federation of BiH criminalised the denial of genocide and other war crimes, prescribing it as the most serious form of criminal offence of „Provoking national, racial, and religious hatred and intolerance”. However, in the Assembly of the other BiH entity (Republika Srpska) there was no political will to vote on the amendments to the criminal code and to criminalise the denial of these crimes. By doing so, the representatives of the official authorities in Republika Srpska as the most ardent inheritors of denialism, would criminalise themselves. Also, the political representatives of the ruling structures from Republika Srpska at the Parliamentary Assembly of BiH on several occasions blocked the adoption of amendments to the CC BiH that would criminalise the practice of denial.

However, as such practice was gaining momentum, in 2021, the High Representative in BiH, Valentin Inzko, following the example of the laws of certain European countries, in accordance with the powers vested in him, imposed amendments to the CC BiH, which, among other things, criminalised the denial of genocide and other war crimes as a special form of criminal offence of „provoking national, racial and religious hatred and intolerance” (Art. 145a CC BiH). This kind of endeavour was worthy of praise, because it may contribute to reducing denialist practices, preventing historical revisionism, preventing the committing of new crimes, and inflicting further injuries on the victims and their descendants (Karčić 2007: p. 295). The criminalisation of denialism is particularly important for preventing the secondary victimisation of crime victims and their family members, because as Grand Mufti of the Islamic Community in Bosnia and Herzegovina Husein Kavazović pointed out: „By denying a crime, the victims are killed twice.” (Ef: Kavazović: Negiranjem genocida žrtve se svjesno ubijaju po drugi put 2020).

Although after the aforementioned amendments to the CC BiH came into force over 100 criminal charges were filed for denying the Srebrenica genocide, as well as several for other war crimes, not one of the reported persons has been convicted to date. Moreover, it was only at the beginning of the year that the first two indictments were brought and confirmed for denying these crimes, which represents a qualified form of the criminal offence of „provoking national, racial and religious hatred and intolerance” (Art. 145a CC BiH). At the same time, in the majority of cases, the prosecutors of the Prosecutor’s Office of BiH made orders not to conduct the investigation, because they assessed that there were no reasonable grounds that the reported persons made statements which actually had the characteristics of the criminal offence under Art. 145a CC BiH.

In this regard, the paper criticises the current prosecutorial practice and processing of the reports for denying these crimes, and advocates its redefinition, so as to prevent additional victimisation of the victims of these crimes, as well as inter-ethnic hatred. Alternatively, the paper pleads for the High Representative in BiH to impose new appropriate amendments to the CC BiH related to the given criminal offence, in order to enable better processing and sanctioning of denialist practices.

Finally, taking into account the fact that after the criminalisation of the denial of genocide and other war crimes in BiH, opinions could be heard in the public discourse that such actions represent an impediment to the exercise of freedom of expression guaranteed by the provisions of Art. 10 of the ECHR, through the analysis of the ECtHR practice, it was concluded that such claims are unfounded, and that the denial of these crimes does not fall under the freedom of expression protected under the relevant convention, but is one of the most serious forms of hate speech, which is strictly prohibited and deserves the harshest social condemnation.

Vedad Gurda – a full professor specialising in the scientific field of Criminal Law at the Faculty of Law of the University of Tuzla (Bosnia and Herzegovina). The subject of his scientific interest is related to the field of criminal law, especially to the branches of juvenile criminal law, the system of criminal sanctions and the prosecution of genocide and other war crimes.

Vedad Gurda – profesor specjalizujący się w dziedzinie prawa karnego na Wydziale Prawa Uniwersytetu w Tuzli (Bośnia i Hercegowina). Przedmiot jego zainteresowań naukowych jest związany z dziedziną prawa karnego, w szczególności z gałęziami prawa karnego nieletnich, systemem sankcji karnych oraz ściganiem ludobójstwa i innych zbrodni wojennych.

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PREMIJERKA SRBIJE: Haški tribunal nije objektivno procesuirao ratne zločine, uglavnom se sudilo Srbima (2017), https://www.source.ba/clanak/Region/451616/Premijerka-Srbije--Haski-tribunal-nije-objektivno-procesuirao-ratne-zlocine-uglavnom-se-sudilo-Srbima (02.11.2017).

PODRŽAVAJU GA ŠIRE MASE DŽANANOVIĆ: Negiranje genocida postalo je duboko ukorijenjeno u ključnim institucijama RS-a i u Srbije (2023), https://nap.ba/qpost/240792/PODRAVAJU-GA-IRE-MASE-Dananovi-Negiranje-genocida-postalo-je-duboko-ukorijenjeno-u-kljunim-institucijama-Rs-ai-u-Srbiji (28.05.2023).

Radio Sarajevo (2024), Podignuta optužnica protiv policajaca iz Osmaka koji su u stanici pretukli dječaka Ajdina (14), https://radiosarajevo.ba/vijesti/bosna-i-hercegovina/podignuta-optuznica-protiv-policajaca-iz-osmaka-koji-su-u-stanici-pretukli-djecaka-ajdina-14/531421 (02.02.2024).

SIMIC Olivera (2024), “Celebrating” Srebrenica Genocide: Impunity and Indoctrination as Contributing Factors to the Glorification of Mass Atrocities, „Journal of Genocide Research“, February 2024. DOI: 10.1080/14623528.2024.2308326

SKANDAL KOJI JE ZGROZIO BIH: Cijelo vodstvo kluba smijenjeno zbog degutantnog ispada navijača (2016), https://net.hr/sport/nogomet/degutantna-poruka-cijelo-vodstvo-kluba-smijenjeno-zbog-skandiranja-koje-je-zgrozilo-bih-7a9802f6-b1cd-11eb-b5a3-0242ac150024 (28.12.2016).

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SOFTIĆ Sakib (2020), Some Legal Issues in the Dispute Between Bosnia and Herzegovina and Serbia for Violating the Convention on the Prevention and Punishment of the Crime of Genocide, „Monumenta Srebrenica“, vol. 9.

SPAIĆ Igor (2022), Gideon Greif tells Haaretz 8,000 were killed in Srebrenica, https://n1info.ba/english/news/gideon-greif-tells-haaretz-8000-were-killed-in-srebrenica/ (19.01.2022).

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ZWIERZCHOWSKI Jan, TABEAU Ewa (2010), The 1992-95 War in Bosnia and Herzegovina: Census-Based Multiple System Estimation of Casualties’ Undercount, Conference Paper for the International Research Workshop on ‘The Global Costs of Conflict’ The Households in Conflict Network (HiCN) and The German Institute for Economic Research (DIW Berlin), 1-2 February 2010, Berlin.

Out of the total number of war casualties 42,106 (40.2%) were civilians and 62,626 (59.8%) were soldiers (Zwierzchowski, Tabeau 2010: p. 16–17)

2 See more: United Nations WWW.

The aforementioned information was provided to the author by the OSCE Mission in BiH. They were collected within the programme of monitoring court proceedings in war crimes cases.

4 Data was provided to the author by the OSCE Mission in BiH.

Judgment of the ICJ of 26 February 2007 in case concerning application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). See the summary in the publication: Softić 2020: p. 57–89.

6 For example, such point of view, among many others, was expressed by the recent Prime Minister of Serbia Ana Brnabić (see: Premijerka Srbije... 2017).

On 17 June 2021, the Parliament of Montenegro removed Minister Leposavić from office for the denial of the Srebrenica genocide. At the same session, the Montenegrin Parliament adopted a resolution that strongly condemns the Srebrenica genocide, confirms that more than 8,000 Bosniak civilians died in the genocide, prohibits the public denial or downplay of the Srebrenica genocide, and declares 11 July as the day of remembrance of Srebrenica victims (see: Crna Gora... 2021).

8 The names of the Srebrenica genocide victims are available on the website of the organisation Remembering Srebrenica (https://srebrenica.org.uk/what-happened/list-victims).

9 By July 2022, the ICMP managed to identify 7015 Srebrenica victims using the DNA or some other method based on the found remains (see more: ICMP 2022).

10 See https://www.irmct.org/specials/srebrenica20/index.html

11 The commission was formed by the Government of Republika Srpska in 2019. At its head was the Israeli historian Gideon Greif, who, after accusations of minimising the number of victims of the Srebrenica genocide, allegedly told the Israeli newspaper Haaretz that about 8,000 people were killed in Srebrenica and that the Commission would correct its report, which has not been done to date (Spaić 2022).

12 Although in the context of studies on genocide for several decades, certain scientific authorities (Gregory Stanton) established that the crime of genocide is not committed and ended at one moment, but that it takes place and is carried out through several (ten) stages, the last of which is denial of genocide, Hariz Halilović pointed to the fact that the denial of genocide does not necessarily represent its last stage but that an even more terrible stage can follow, which he labeled as triumphalism. It is a stage, as pointed out, that is reflected in celebrating the criminals who committed genocide and glorifying their criminal heritage, while at the same time humiliating the victims (Halilovich 2017: p. 7).

13 Due to fans of the football club Kozara from Bosanska Gradiška (BiH) chanting this heinous slogan at a match in October 2016, the Football Association of Republika Srpska dismissed the entire management of this club, which is seen as a positive example of a resolute response to the until then fairly widespread form of fan vandalism in BiH (Skandal koji je zgrozio BiH... 2016).

For example, the company „011 Shop” from Belgrade printed t-shirts with the morbid inscription „Knife, wire”. It is commendable that the Market Inspection of Serbia banned this company from selling and advertising all products with this inscription in January 2021, due to causing national, racial, and religious hatred. (See more: Vlasti Srbije zabranile oglašavanje robe sa natpisom „Nož, žica“ 2021).

15 It is interesting that at the beginning of 2023, the Youth Initiative for Human Rights identified as many as 308 graffiti and murals celebrating the convicted war criminal Ratko Mladić in 10 cities and municipalities in Serbia, of which at least 250 in the Belgrade area. They submitted 308 reports to the competent communal services requesting the removal of these graffiti and murals (Nastevski 2023). Unfortunately, there is no information available as to whether the Serbian municipal authorities complied with this request.

16 For example, it should be pointed out that in 2016, Milorad Dodik, then in the capacity of Prime Minister of Republika Srpska, opened a student dormitory in Pale called „Dr. Radovan Karadžić”, intended for housing students of the University of East Sarajevo. However, under the pressure of the international community and the Office of the High Representative (OHR), following the legally adjudicated conviction of Radovan Karadžić by the ICTY, the plaque on the student dormitory with Radovan Karadžić’s name was removed in December 2020 (see more: Uklonjena ploča sa imenom Radovana Karadžića na Palama 2020).

17 The Law on Amendments to the Criminal Code of the Federation of Bosnia and Herzegovina (“Official Gazette of FBiH”, no. 76/2014)

HR’s Decision on Enacting the Law on Amendment to the Criminal Code of Bosnia and Herzegovina n 26/21, 23 July 2021.

19 Also, no person has been convicted for denying genocide before the courts in the Federation of BiH in accordance with the CC FBiH. However, it is interesting to point out that the Swiss judiciary issued certain convictions on this matter, although not final. Criminal proceedings were conducted against the politician Donatello Poggi because in several articles published in 2012 on local portals he denied and trivialised the Srebrenica genocide, based on the criminal charges filed against him by a lawyer of Bosnian origin. On all those grounds, in 2016 in the first instance, and then in 2017 in the second instance, he was sentenced to a two-year suspended prison sentence, for denying genocide as a form of racial discrimination. However, in 2018, the Supreme Court of Switzerland acquitted Poggi of responsibility for the crime and determined that his freedom of expression was limited by the decisions of the lower courts, stating that Poggi’s texts were humiliating and represented a form of genocide denial, but that the defendant did not have the intention to discriminate against others, nor to cause racial hatred and intolerance towards Muslims (See more: Swiss politician… 2018).

In the explanations of their orders, the prosecutors also emphasised other reasons whose relevance is extremely questionable. For example, they stated that „it was not possible to determine the identity of the notifiers”, which is completely irrelevant to the prosecutor actions, who ex officio should investigate and detect potential criminal acts. They also emphasised that the denialist statements did not provoke violence and hatred, which is not a feature of this criminal offence, to the point that it was stated approximately that the reported and interrogated persons invoked their freedom of expression, which would be limited in the event of potential accusations of denialist statements. This is also an unfounded explanation, because the freedom of expression guaranteed by the ECHR does not have absolute effect and can be limited for the sake of achieving certain legitimate goals (see more: Išerić et al. 2022: p. 43-53).

In this regard, the Prosecutor’s Office of BiH pressed charges against Samir Nukić from Bihać, because after the visit of the High Representative Christian Schmidt to the monument in Vitez, erected for eight children of the Croatian nationality killed in 1993 by a grenade fired from a position of the Army of the Republic of BiH, he posted on Facebook curses and expression of hatred towards the murdered children. Also, the the charges were pressed against Vojin Pavlović from Bratunac, the president of the Eastern Alternative Association, known for his actions and statements in which he denies the Srebrenica genocide and glorifies war criminals (see: Dvije optužnice za tri godine... 2024).

22 For more on the characteristics of hate crimes see: Hodžić, Mehmedović 2014.

23 Apart from his constant denial of genocide, the president of Republika Srpska Milorad Dodik is also known for his xenophobic statements towards Bosniaks, whom he often calls „Muslims” in order to challenge their national identity. The highlight of his xenophobic narrative is represented by the statement that „... we do not want to share air with Bosniaks, let alone other values” (See: Dodik poručio „Ne možemo dijeliti ni zrak” 2024).

There are many such decisions of the ECtHR. For example, decisions in the following cases can be cited: Remer v. Germany (Application no. 25096/94, 6.09.1995); Marais v. France (Requête no 31159/96, 24.06.1996); D.I. v. Germany (Application no. 26551/95, 26.06.1996), Nachtmann v. Austria (Application no. 36773/97, 9.09.1998); Schimanek v. Austria (Application no. 32307/96, 1.02.2000); Garaudy v. France (Requête no 65831/01, 24.06.2003); Witzsch v. Germany (Application no. 7485/03, 13.12.2005); Williamson v. Germany (Application no. 64496/17, 8.01.2019).

25 Article 17 of the ECHR stipulates: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.“ This means that no one is allowed to use the Convention’s rights and freedoms in a way that violates the rights and freedoms of others, and that such behaviour represents a kind of abuse of rights. Given that the ECtHR uses the provisions of this article as a procedural mechanism for rejecting appeals, i.e. declaring them inadmissible, without entering into the merits of the appeal, in the literature this procedural mechanism is sometimes referred to as the case-killer mechanism (see more in: Herceg Pakšić 2017: p. 240).

26 On 17 December 2013, the ECtHR brought its first decision, in which it found that Switzerland, by convicting Doğu Perinçek for his public denial of the Armenian genocide, violated his freedom of expression. After that, the Swiss government requested that the Grand Chamber of the ECtHR reconsider the appeal in question. On 15 October 2015, the Chamber made its decision, which also confirmed that the Swiss courts, with their convictions for denying the Armenian genocide, violated the appellant’s freedom under Art. 10 of the ECHR.

27 On the other hand, quite expectedly, certain Turkish authors evaluate these decisions positively (Tacar 2014).

28 The controversial character of these decisions is confirmed by the fact that the first decision was made with 5 votes for and 2 votes against, and the decision of the Grand Chamber was made with 10 votes for and 7 votes against. Therefore, seven judges of the Grand Chamber, including the President of the Court, were of the opinion that the Swiss courts did not violate the appellant’s freedom of expression. Additionally, four judges were of the opinion that the provisions of Art. 17 of the ECHR should have been implemented as the Armenian genocide is a clearly established fact. To deny it is to deny something that is obvious (Voorhoof 2016).

As previously pointed out, in a significant number of cases, the deniers of the Srebrenica genocide denied solely its genocidal legal nature, which is why the acting prosecutors were of the opinion that such denial was not committed „in a way that could provoke violence or hatred” and concluded that there were no characteristics of the criminal offence from Art. 145a of the CC BiH. Consequently, the prosecutors suspended investigations. However, if the prosecutors were to redefine their practice in the foreseeable future, or if the High Representative were to impose amendments to the CC BiH, which would delete that the denial must be carried out in a way “that could provoke violence and hatred” as a feature of this criminal offence, it would make the prosecution and criminal conviction of genocide deniers easier, while convictions would also not constitute the violation of genocide deniers’ freedom of expression.

In such cases, if the convicted denier would turn to the ECtHR for an alleged violation of their freedom of expression, the Court would not, according to the criteria from the decisions in the case of Doğu Perinçek vs. Switzerland, pursuant to Art. 17. of the ECtHR dismiss their appeal as inadmissible, but it would enter into a discussion of its content. However, if the other previously described criteria from these decisions were to be consistently followed, the Court would certainly decide that such an appeal was not founded, that is, that the appellant’s freedom of expression was not violated.

Received: 05.08.2024. Accepted: 19.03.2025.

Przegląd Europejski – European Studies Quarterly, ISSN: 1641-2478

vol. 2025, no. 1

Copyright © by Katarzyna Czeszejko-Sochacka, 2025

Creative Commons Attribution 4.0 (CC BY 4.0)

http://creativecommons.org/licenses/by/4.0/

DOI: https://doi.org/10.31338/1641-2478pe.1.25.3

Participation of child soldiers in armed conflicts: the case of Bosnia and Herzegovina1

Katarzyna Czeszejko-Sochacka, University of Rzeszów  (Rzeszów, Poland)

E-mail: kczeszejko@ur.edu.pl

https://www.orcid.org/0000-0001-7978-1687

Abstract

The issue of child soldiers occurs in various parts of the world during international and non-international wars. This phenomenon was also present during the war in Bosnia and Herzegovina from 1992 to 1995. In BiH, minors joined the army as volunteers.

The subject of this article is participation of children in armed conflicts as soldiers during the war in BiH. The article’s aim is to answer the following questions: (1) What is the legal situation of such people today? (2) Are there legal regulations in BiH, on the basis of which they are entitled to rights reserved for war veterans? This topic seems to be important, because there are currently four generations of people living in BiH, whose lives are affected by the events of the war in the 1990s. Today’s state of knowledge indicates that the now-adult child soldiers are overlooked by the Bosnian state system. Their situation is complicated by the fact that they participated in the war as volunteers, and this form of participation was not provided for by legislation of the Socialist Federal Republic of Yugoslavia (SFRY, Yugoslavia). The study applied the dogmatic-legal method, through which the analysis of legal acts concerning this issue in the international arena was carried out.

Keywords: Bosnia and Herzegovina, child soldiers, Convention on the Rights of the Child, war in Bosnia and Herzegovina, armed conflicts, war veterans, human rights

Udział dzieci-żołnierzy w konfliktach zbrojnych na przykładzie Bośni i Hercegowiny

Streszczenie

Problematyka dzieci-żołnierzy występuje w różnych częściach świata przy okazji wojen o międzynarodowym i niemiędzynarodowym charakterze. Sytuacja ta miała miejsce także w czasie wojny w Bośni i Hercegowinie w latach 1992-1995. W BiH małoletni wstępowali do armii w charakterze wolontariuszy.

Przedmiotem niniejszego artykułu jest kwestia udziału dzieci w konfliktach zbrojnych jako żołnierzy podczas wojny w BiH. Celem artykułu jest próba udzielenia odpowiedzi na następujące pytania: (1) Jak dzisiaj wygląda sytuacja prawna takich osób? (2) Czy w BiH istnieją regulacje prawne, na podstawie których przysługują im uprawnienia zarezerwowane dla weteranów wojennych? Temat ten wydaje się być istotny, gdyż obecnie w BiH żyją cztery pokolenia osób, na życie których wpływ mają wydarzenia wojny z lat 90. ubiegłego wieku. Dzisiejszy stan wiedzy wskazuje, że dorosłe już dzieci-żołnierze zostały pominięte przez bośniacki system państwowy. Ich sytuację dodatkowo komplikuje fakt, że brały one udział w wojnie w charakterze wolontariuszy, a taka forma udziału nie była przewidziana przez ustawodawstwo Socjalistycznej Federacyjnej Republiki Jugosławii (SFRY). W niniejszym badaniu posłużono się metodą dogmatyczno-prawną, za pomocą której dokonano analizy aktów prawnych odnoszących się do tej problematyki na arenie międzynarodowej.

Słowa kluczowe: Bośnia i Hercegowina, dzieci-żołnierze, Konwencja o Prawach Dziecka, wojna w Bośni i Hercegowinie, konflikty zbrojne, weterani wojenni, prawa człowieka weterani wojenni, prawa człowieka

Despite nearly thirty years having passed since the end of the war in Bosnia and Herzegovina (BiH), its consequences are still present in the lives of the country’s residents. The physical scars of war can be completely removed with appropriate financial resources. As opposed, psychological traumas leave a lifelong mark. One of the groups that most strongly feels the effects of the war past are young adults, who had to face the reality of war when they were children. Studies conducted after the war in the former Yugoslavia indicate the devastating impact of the war on the psyche of children and adolescents (War Childhood Museum WWWb), who were exposed to various forms of violence. Children were victims of torture, sexual violence, many of them experienced displacement, separation from parents, others were orphaned or injured, and some of them were born as a result of war rape2 (Czeszejko-Sochacka 2023: p. 92–105). All these events left long-term effects on children’s development, lasting until adulthood. Among the most common psychopathological consequences are depression, suicidal thoughts, somatic problems, and behavioural issues (Hasanović 2011: p. 46). Hasanović notes that the proximity to wartime atrocities and personal losses is strongly correlated with the development of symptoms characteristic for post-traumatic stress disorder3 (Hasanović 2011: p. 47). He drew attention to its particularly strong impact on children and adolescents, who survived the genocide in Srebrenica and the siege of Sarajevo (Hasanović 2011: p. 48–52). Studies conducted in this group demonstrated that younger children were more protected by adults and as a result were less exposed to traumatic events than older children (Arshad Husain 2000: p. 146–147). Due to their cognitive immaturity and limited understanding of the irreversibility of death and readiness to accept war conditions as a part of life, they presented fewer symptoms of post-traumatic stress than older individuals. Older children, on the other hand, were more exposed to life-threatening situations, as they had more memories of what their lives were like before the war and, therefore, a greater sense of loss.

Currently, four generations of people live in BiH, whose lives are affected by the events of the 1990s war. It is worth mentioning the phenomenon known as intergenerational trauma. Parents and grandparents often pass on their traumas to their children and grandchildren (Hola, Simic 2023). This phenomenon is common in all armed conflicts, for example, the intergenerational effects of PTSD were revealed among the offspring of women survived the Holocaust (West 2015; Dashorst et al. 2019), women who were exposed to international crimes during the war in the Balkans, and also exposed to genocide during the civil war in Rwanda in 1994 (Rudahindwa et al. 2020). Among the offspring of mothers exposed to such suffering, there was a higher rate of post-traumatic stress, and the severity of depressive symptoms compared to the offspring of mothers who were not exposed to such stress.

The subject of the article is the issue of participation of children in armed conflicts as soldiers during the war in Bosnia and Herzegovina.

The article’s aim is to answer the questions: what is the legal situation of such people today? Are there legal regulations in BiH, on the basis of which they are entitled to rights reserved for war veterans?

This topic seems to be important, because there are currently four generations of people living in BiH, whose lives are affected by the events of the war in the 1990s. Today’s state of knowledge indicates that now adult child soldiers have been overlooked by the Bosnian state system, their situation is complicated by the fact that they participated in the war as volunteers, but this form of participation was not provided for by legislation of the Socialist Federal Republic of Yugoslavia (hereinafter: SFRY, Yugoslavia). The study applied the dogmatic-legal method, through which the analysis of legal acts concerning this issue in the international arena was carried out. In order to obtain reliable information, the author contacted many institutions4 in BiH that collect data on the participation of BiH’s population in war in the years 1992–1995.

Definition of child soldier

The phenomenon of child soldiers is associated with nearly every armed conflict, and it was also present during the war in the former Yugoslavia. As D. Savić, R. Piralić, and A. Janković rightly point out, most studies focusing on the phenomenon of child soldiers are related to conflicts in Africa, whereas it has a global character (Savić et al. 2021: p. 44). However, it had different roots in BiH. There was no forced conscription of minors into the army, but children took an active part in the fighting as volunteers.

The concept of a child soldier was defined at the 1997 United Nations Children’s Fund symposium in Cape Town (see: UNICEF 1997), according to which it is: “A child associated with an armed force or armed group” refers to any person below 18 years of age who is or who has been recruited or used by an armed force or armed group in any capacity, including but not limited to children, boys and girls, used as fighters, cooks, porters, messengers, spies or for sexual purposes. It does not only refer to a child who is taking or has taken a direct part in hostilities”. At this point, it is worth mentioning the definition of a child contained in Article 1 of the Convention on the Rights of the Child of 1989 (hereinafter: CRC or Convention), according to which it is any human being below the age of eighteen, unless, in accordance with the law applicable to the child, he or she acquires majority earlier (see: Convention on the Rights of the Child 1989: art. 1).

From the point of view of the subject of this article, it is justified to refer to the regulations in force in the territory of BiH during the war of the 1990s, because it is crucial due to the rights of persons, who – as children – took part in the fights together with the armed forces. According to Article 63 of the Constitution of the Federal Republic of Yugoslavia of 1992, the defence of the homeland was “the right and duty of every citizen” (Constitution of the Federal Republic of Yugoslavia 1992: art. 63).

Military service was regulated by the provisions of Articles 279 to 336 of the Law on the Yugoslav Army. According to its provisions (Article 288(2)), the obligation to conscript began with registration at the beginning of the calendar year in which a Yugoslav citizen turned 17, but the actual conscription to the army took place in the calendar year in which the conscript turned 18 (Article 291(1)). Voluntary conscription was also possible from the beginning of the calendar year, in which a potential conscript turned 17. This minimum age limit was also in force during the war by order of the President of the SFRY. However, Articles 301 and 302 of this law stated that a recruit is sent to perform military service only after reaching the age of 21 or, if he requested it, at the earliest in the year, in which he turned 18 (Child Soldiers International 2001). Despite such regulations, numerous testimonies from child soldiers indicate that participation in the war as volunteers involved much younger children (Ahmetasevic 2014). However, there are no official data on exactly how many minors and of what gender fought during the war in Bosnia and Herzegovina.

G. Machel, in a 1996 report for the UN regarding the impact of armed conflicts on children, noted that countries with weak administrative systems do not maintain a systematic record of conscription (United Nations General Assembly 1996: p. 16). However, many organisations cite data on this phenomenon. The Coalition to Stop the Use of the Child Soldiers states that there is substantial evidence confirming the participation of child soldiers in the past armed conflict in BiH. UNICEF states that children under 18 years of age were not obligated to participate in the armed forces, though some joined as volunteers, and they were only accepted if they were over 16 years old (Child Soldiers International 2001). According to cautious estimates, around 10,000 people under the age of 18, some of whom were as young as ten, participated in the Balkan wars in the 1990s (Alić 2013). The United Nations provides different data, which claims that this phenomenon affected 3,000 to 4,000 children. According to the Research and Documentation Centre in Sarajevo, 40 child soldiers aged 10 to 15 died during the war, while there were 621 such cases in those aged 16 to 18 (Tokača 2012: p. 142).

Protection of children during armed conflict in the acts of international law

In recent decades, the protection and well-being of children during armed conflict has taken an important place on the political agenda of the international community (EU Guidelines… 2017). It should be noted that during a conflict, all civilians (including children) enjoy equal protection under international humanitarian law. The protection of children is dictated by their vulnerability and developmental needs. However, despite the principles resulting from numerous regulations, the rights of millions of children around the world are still violated (War Childhood Museum WWWb). The atrocities that took place during World War II became an inspiration to take action to protect individuals from the dangers of the state apparatus. It was then noted that a totalitarian state poses a threat not only to adults, but also to children, who are the weakest element of the social structure, requiring special protection (Smyczyński 1999: p. 7).

The provisions of the Geneva Conventions of 1949 are of priority importance in this respect. In accordance with the regulations of Article 14 of the Geneva Convention for the Protection of Civilian Persons in Time of War, the States Parties may create on their territory, and if necessary in occupied territories, hospital zones and localities, so that they can protect against the effects of war, in addition to ot

her eligible groups, also children under 15 and mothers of children under 7. The following articles of this document refer to the need to protect and support children in times of armed conflict: Article 1, 17, 23, 24, 38, 50, 51, 82, 89, 94, and 132 (see: Geneva Conventions 1949).

A significant role in the protection of children in armed conflicts was played by the Additional Protocols to the Geneva Conventions concerning the protection of victims of international armed conflicts (Protocol I) and non-international armed conflicts (Protocol II) (see: Protocols Additional 1977). Under Article 77 of Protocol I, the parties to the conflict are obligated to provide care and assistance to children, who shall enjoy special respect and shall be protected from all forms of indecent assault. The States Parties are obliged to prevent the direct participation of children under 15 years of age in hostilities and to strive to prevent the recruitment of such children as participants in the armed forces. In case of recruitment of persons between 15 and 18 years of age, priority should be given to older persons. If children under 15 years of age participate directly in hostilities and fall into the power of an opposing party, they are to enjoy special protection, regardless of whether they have the status of prisoners of war. In the event of the detention, imprisonment, or internment of children for reasons related to the armed conflict, they are to be placed in separate rooms from adults.

In turn, under Article 4(3) of Protocol II related to non-international armed conflicts, fundamental guarantees were specified that must be provided to children in the event of such a conflict. Protocol II specifies, among other things, their right to education, to take steps to reunite separated families, and prohibitions on the recruitment of children under 15 into armed groups. As in the case of international conflicts, the death penalty is prohibited for persons who are under 18 years old (Article 6(4) of Protocol II). This provision corresponds to the regulations adopted in the Rome Statute of the International Criminal Court (RSICC), as discussed later in this research paper. Protocol II provides broader protection for children, as it prohibits any participation in armed activities (Szpak 2014: p. 304). Agnieszka Szpak is right when she claims that, according to international humanitarian law, children are treated as civilians who do not take part in armed activities (Szpak 2014: p. 303). Notably, the application of humanitarian law norms cannot be suspended during an armed conflict. Sandorski rightly points out that they constitute the “last resort” for victims of the conflict (Sandorski 1999: p. 427). At this point, it is necessary to address the issue of children’s participation in armed conflicts based on the provisions of the Convention on the Rights of the Child. According to the provisions of Article 38 (par. 2 and 3), the States Parties commit “to refrain from recruiting any person who has not attained the age of fifteen into their armed forces” (Convention on the Rights of the Child 1989: art. 38, par. 3). Moreover, when conducting recruitment among persons who have reached the age of 15, but not yet reached the age of 18, the States Parties committed to take into account older persons first. This provision applies in both international and non-international armed conflicts and pertains to both forced and voluntary recruitment (Prucnal 1999: p. 299).

According to the content of the provision of Article 38(1) of Convention, the States Parties have committed to respect and order compliance with the norms of international humanitarian law applicable to them in the event of armed conflict and relating to children in the event of an armed conflict of both an international and non-international nature, but it does not refer to internal disturbances that do not have the character of an internal armed conflict (Sandorski 1999: p. 435). We must agree with J. Sandorski, who states: “In comparison with other provisions of the Convention on the Rights of the Child, the legal solutions adopted in Article 38 evoke an effect reminiscent of metal scraping against glass” (Sandorski 1999: p. 436). This provision allows minors to participate in armed conflicts, while the provision of Article 1 clearly recognises a person under the age of fifteen as a child. Importantly, during the work on the Convention, the age of a person, excluding the possibility of taking part in armed actions, aroused great emotions. It is worth noting that in 1986, the original version of the draft of the CRC included a statement that no child would participate in armed conflicts; however, it ultimately did not gain support.

The aforementioned provisions correspond with the Optional Protocol to the CRC on the involvement of children in armed conflict, adopted on 25 May 2000 (see: Optional Protocol 2000). According to the Article 1 of this document, ”States Parties shall take all feasible measures to ensure that members of their armed forces who have not attained the age of 18 years do not take a direct part in hostilities” (Optional Protocol 2000: art. 1). Importantly, Article 2 of the Optional Protocol emphasises the need to make efforts to ensure that children under 18 „are not compulsorily recruited into their armed forces” (Optional Protocol 2000: art. 2). The term “all feasible measures” means that states shall take “such measures as are practicable in the circumstances surrounding armed operations aimed primarily at achieving military success” (Sandorski 1999: p. 433).

States that ratified the provisions of the CRC thereby committed to take appropriate legislative and administrative measures to ensure full implementation of the rights contained in its provisions (see: UNICEF WWW). Although most countries are party to the Convention, its provisions are not always respected. This is particularly visible during armed conflicts. The issue of the impact of armed conflicts on children was subject to detailed analysis in the aforementioned report by G. Machel of 1996, in which she called for better recognition of violations of the human rights of children and adolescents, as well as for the establishment of special protective centres in areas affected by conflict (United Nations General Assembly 1996). The report highlights that some commanders are enthusiastic about the participation of children in armed conflicts, which results from their immaturity and obedience, not asking questions, and their easier manipulation. The role of child soldiers is very diverse, some of them cook, others carry luggage, carry messages, and are even used as spies (United Nations General Assembly 1996: p. 16). However, girls suffer a particularly difficult fate, often becoming sex slaves, and are often forced into forced marriages and to bear children for combatants. The report stated that conscripting children into the army should be considered a crime against humanity (United Nations General Assembly 1996). The currently applicable RSICC states in Article 8(2)(b)(xxvi) that the conscription or recruitment of children under the age of fifteen into the armed forces or their use in hostilities is a war crime. As noted by the ICC in the case of Prosecutor v. Lubanga (International Criminal Court 2012; see also: Ambos 2012: p. 115–153; Kurth 2013: p. 431–453), the crime of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities,” as set out in Article 8(2)(b)(xxvi) of Statute, falls within “the established framework of international law” as one of the “other serious violations of the laws and customs applicable in international armed conflict”. The essential elements related to the issue of conscription of child soldiers are: the conscription by the perpetrator of one or more persons under the age of 15 into the national armed forces, or the use of such persons to actively participate in warfare. In such case, the perpetrator may have the intention of dolus eventualis, which is confirmed by the formulation used in the provision that “the perpetrator knew or should have known” that the given person was under 15 years of age, this term imposes on the perpetrator the obligation to take reasonable steps before conscripting him or her into the army. The purpose of this regulation is to protect the rights of children under the age of 15 (Cottier, Grignon 2015: p. 527–528). As Cottier and Grignon note, this standard deviates from the requirement of awareness, which is specified in Article 30 of the RSICC, according to which, “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge” (Cottier, Grignon 2015: p. 527–528).

War crimes specified in the ICC Statute are limited to the conscription or enlistment and use of children in armed conflicts under the age of 15 (Klamberg 2017: p. 106). Significantly, the terms “conscription” and “recruitment” are not defined in the Statute or the Elements of Crimes, leaving their interpretation to case law. In analysing this issue, it is also worth mentioning Article 8(2)(e)(vii), which states that other serious violations of the laws and customs in the established framework of international law applicable to armed conflicts that are not international in nature, such as conscripting or enlisting children under the age of 15 into armed forces or using them in hostilities, also constitute a war crime. This prohibition corresponds to the previously cited provision, mentioned in Article 77(2) of Protocol I.

We should also not forget about Convention concerning the prohibition and immediate action for the elimination of the worst forms of child labour also known as Convention no. 182 of the International Labour Organization, according to which among the “worst forms of child labour” are listed: “all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict” (see: Worst Forms... 1999: art. 3(a)).

The case of Bosnia and Herzegovina

The International Criminal Tribunal for the former Yugoslavia (ICTY), established to resolve the criminal responsibility of individuals who committed crimes during the 1990s conflict, did not address the involvement of children in armed conflict, nor did it list such acts as war crimes or crimes against humanity. The Statute of the ICTY did not mention conscription into the military, either (UN ICTY 2009). It should be noted, however, that international conventions are considered sources of international criminal law (Hofmański, Kuczyńska 2020: p. 32). These conventions establish prohibitions on certain behaviours and introduce substantive legal norms, which, due to violations of fundamental values associated with human dignity, are unacceptable (Hofmański, Kuczyńska 2020: p. 32). In terms of the subject matter, it should be noted that the SFRY was bound by the provisions of the Geneva Conventions, the Convention on the Rights of the Child, and the additional protocols introducing prohibitions related to the participation of children in armed combats. It is worth recalling that the Socialist Federal Republic of Yugoslavia took an active part in the development of the CRC and was the author of the relevant resolutions concerning this Convention (United Nations 1994). The Assembly of the SFRY ratified the CRC in December 1990, with the consent of the Assemblies of all federal entities of the former Yugoslavia (United Nations 1994).

Yugoslavia was also one of the first countries to sign a cooperation agreement with UNICEF and the second country in the world, after Switzerland, to ratify the IV Geneva Convention relative to the Protection of Civilian Persons in Time of War. It was the fourth country to ratify additional protocols, committing to uphold the provisions of the conventions and to implement various measures prescribed by them, such as penalizing all acts violating the Geneva provisions (United Nations 1994). After the dissolution of the SFRY and Bosnia and Herzegovina’s (BiH) declaration of independence, the Convention was listed as having direct application in BiH in Annex 1 of the BiH Constitution (see: Constitution of Bosnia and Herzegovina 1995). The Constitution of BiH of 27 April 1992 states that all international treaties, approved and published, are an integral part of the internal legal order of the country (Office of the High Representative 2024). Therefore, BiH has remained a party to this Convention, so there is no doubt that even during armed conflict, children’s rights should be respected (United Nations 1994).

Today, adults who were child soldiers in BiH are beginning to demand their rights. However, as they emphasise, they have been abandoned by the BiH legal system (Ahmetasevic 2014). Compared to other categories of combatants, they are not guaranteed any special rights, and no reintegration programmes are being conducted for them in society (Savić et al. 2021: p. 44). Despite the fact that BiH is a State Party to many conventions on the protection of children, it has not formally recognised the participation of child soldiers in war to this day. At this point, comparisons related to the status of CHiBOW and their fight for their rights come to mind (Office of the High Representative 2024). The BiH authorities argue that these children were volunteers, and, in some cases, their parents signed consent for their military enlistment. For this reason, they should not be treated differently from other individuals who participated in the war under similar terms (Ahmetasevic 2014). However, it must be remembered that children are usually not aware of the consequences of their actions. In 1996, G. Machel, in a report on the impact of armed conflicts on children, pointed out that the phenomenon of child soldiers is often related to cultural, social, economic, or political pressure, and such a choice in the case of minors is only seemingly voluntary (United Nations General Assembly 1996). While it is difficult to pinpoint definitive motives for such decisions, analysing the case of BiH, one likely reason seems to be the pervasive violence and chaos that led children to join armed groups, often as a matter of safety. Such behaviour was often glorified. Children died on the battlefield were frequently regarded as war heroes or martyrs (Savić et al. 2021: p. 43).

D. Savić, R. Piralić and A. Janković draw attention to the socialist discourse on childhood prevailing in the SFRY, which encouraged the indoctrination and militarisation of children and youth, which was additionally fuelled by mechanisms such as the education system, the pioneer movement, television programmes and literature addressed to children (Savić et al. 2021: p. 48). It is worth mentioning that the phenomenon of children volunteers also occurred during the civil war in Sierra Leone (Zack-Williams 2001: p. 73–82). Among the motives for choosing this phenomenon, A. B. Zack-William mentions the desire for revenge for lost parents, for some children military service was also a surrogate for lost family ties. The collapse of the state and previous social structures left a social void that could be filled in this way (Zack-Williams 2001: p. 78–79).

M. Klamberg has a different perspective on the concept of “voluntariness,” noting that “although presumed voluntariness may be negated by force or intimidation, the child’s consent legally qualifies the behaviour as enlistment rather than conscription. Consent is therefore not irrelevant, yet enlisting a child into the armed forces still falls within the scope of Article 8, regardless of the manner of their enlistment” (Klamberg 2017: p. 106).

Conclusions

The phenomenon of child soldiers is common in almost every armed conflict. Regardless of its nature, however, under the regulations of international law, their active participation in armed conflict is prohibited. The Convention on the Rights of the Child, which constitutes the core of children’s fundamental rights, is not consistent in terms of protecting children in armed conflicts. On the one hand, it defines children as persons under the age of 18, and on the other hand, it allows them to participate in armed conflicts under certain conditions (Article 38). However, it should be remembered that children are often not aware of the consequences of the decisions they make, and the motives that guide them often result from the need of the moment, they are often forced to do so, and sometimes, as in the case of BiH, they may be the result of a romanticised idea of military service.

Due to the fact that minors took part in the war as volunteers, they are not currently treated as war veterans under the legal provisions in force in BiH and, therefore, they are not entitled to any benefits available to persons with this status (Ahmetasevic 2014). Regardless of the reasons for these decisions, however, they should be treated like other war veterans. The effects of their participation in the conflict often left, apart from psychological trauma, physical ailments that prevent them from functioning properly in adult life. Post-conflict support for these individuals is also crucial; children should be surrounded by special protection. They have specific needs, which include in particular: finding family members who went missing during warfare, integration with society. It is particularly advisable to provide them with psychotherapeutic care to solve the problem of PTSD, as well as obtaining legal assistance for compensation claims (EU Guidelines 2017: p. 3). It is to be hoped that over time this situation will change and, as with the CHiBOW initiative, they will finally receive their due rights.

Katarzyna Czeszejko-Sochacka – Doctor of Juristic Science, Assistant Professor at the Department of Criminal Law, Faculty of Law and Administration, University of Rzeszów. Academic teacher and author of articles on substantive criminal law and international criminal law. Her primary research interests are focused on the protection of individual rights in specific areas and issues related to international crimes. Resent publication on this topic: Amendment to the act on civilian victims of war and the legal situation of children of war rape in Bosnia and Herzegovina, “Polityka i Społeczeństwo”, no. 1(21)/2023.

Katarzyna Czeszejko-Sochacka – doktor nauk prawnych, adiunkt w Zakładzie Prawa Karnego na Wydziale Prawa i Administracji Uniwersytetu Rzeszowskiego. Nauczyciel akademicki i autorka poświęconych prawu karnemu materialnemu oraz międzynarodowemu prawu karnemu. Główne zainteresowania naukowe dotyczą zagadnień związanych z ochroną jednostki na określonym odcinku jej praw oraz problematyka zbrodni międzynarodowych. Poprzednia publikacja związana z tematyką wojny w Bośni i Hercegowinie: Amendment to the act on civilian victims of war and the legal situation of children of war rape in Bosnia and Herzegovina, „Polityka i Społeczeństwo”, nr 1(21)/2023.

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1 The author would like to thank Ms. Ismena Čaušević (an Expert Assistance of the Sarajevo Information Centre on ICTY) and Mr Nedžad Smailagić (a lecturer at University of Bihać) for their help in collecting the materials, without whom this work would not be possible.

2 Children Born of War (CHiBOW).

3 Hereinafter: PTSD.

4 In order to obtain reliable data, the author requested statistical information from organisations and ministries in Bosnia and Herzegovina, such as: Post-Conflict Research Center, War Childhood Museum, Institute for War & Peace Reporting and to the BiH Ministry of Defense, Ministry for Statistics.

Received: 30.10.2024. Accepted: 16.03.2025.

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DOI: https://doi.org/10.31338/1641-2478pe.1.25.4

Foreign judges in the Constitutional Court of Bosnia and Herzegovina. Legal and political aspects

Krzysztof Krysieniel, WSB Merito University in Poznań Faculty in Chorzów (Chorzów, Poland)E-mail: krzysztof.krysieniel@chorzow.merito.pl

https://www.orcid.org/0000-0001-8839-6350

Abstract

The article presents the analysis of the competences and constitutional position of the Constitutional Court of Bosnia and Herzegovina. In case of this country, there are a number of unique political arrangements, because under the Dayton Peace Agreement from 1995, ending the bloody war, representatives of international community play a significant role in political system. The Constitutional Court is a case in point, as one-third of the court consists of foreign judges. Starting the study, the author hypothesised that the presence and participation of these judges, on the one hand, allowed the Constitutional Court to avoid the typical purely ethnic division of authorities in Bosnia and Herzegovina leading to ethnocratic solutions, but on the other hand, it indicates the still incomplete state sovereignty that has persisted for almost 30 years. The hypothesis was verified based on research methods appropriate to social sciences, primarily institutional and legal, as well as a case study.

Keywords: Bosnia and Herzegovina, Constitutional Court, state sovereignty, foreign judges, international community, European Union

Sędziowie zagraniczni w Sądzie Konstytucyjnym Bośni i Hercegowiny. Aspekty prawne i polityczne

Streszczenie

W artykule poddano analizie kompetencje i pozycję ustrojową Sądu Konstytucyjnego Bośni i Hercegowiny. W przypadku tego państwa można mówić o szeregu wyjątkowych rozwiązań ustrojowych, gdyż na mocy porozumienia pokojowego z Dayton w 1995 roku, kończącego krwawą wojnę, istotną rolę w systemie politycznym odgrywają przedstawiciele wspólnoty międzynarodowej. Przykładem jest właśnie Sąd Konstytucyjny, gdyż jedną trzecią składu stanowią sędziowie zagraniczni. Przystępując do badania, autor postawił hipotezę, że z jednej strony obecność i udział tychże sędziów w Sądzie Konstytucyjnym pozwala na uniknięcie typowego dla Bośni i Hercegowiny, czysto etnicznego podziału organów władzy prowadzącego do etnokratycznych rozwiązań, z drugiej jednak strony wskazuje na wciąż niepełną suwerenność państwową, utrzymującą się już niemal od 30 lat. Hipoteza ta została zweryfikowana w oparciu o metody badawcze odpowiednie dla nauk społecznych, w tym przede wszystkim instytucjonalno-prawną oraz studium przypadku.

Słowa kluczowe: Bośnia i Hercegowina, Sąd Konstytucyjny, suwerenność państwowa, sędziowie zagraniczni, wspólnota międzynarodowa, Unia Europejska

The legal and constitutional arrangements that are currently in place in Bosnia and Herzegovina (BiH) are the aftermath of decisions made in the fall of 1995 in the U.S. city of Dayton, Ohio.1 The General Framework Agreement for Peace, which ended the bloodiest armed conflict in Europe since World War II, also brought a new constitutional order for this multi-ethnic post-Yugoslav republic. Since the end of 1995, BiH has had a constitution, originally written only in English and adopted completely bypassing the existing then constitutional procedures, which to date has not received formal approval in the relevant proceedings. The text of the Constitution of Bosnia and Herzegovina, which is de iure the most important legal act, was published in Annex 4, being a part of the Dayton Agreement (see: The General Framework Agreement… 1995; see also: Krysieniel 2012: p. 225–234). The Constitution itself omits some essential constitutional issues or treats them superficially. For example, the form of the state is undefined (not directly specified in the Constitution), and an attempt to analyse specific provisions leads to different conclusions – depending on the thesis adopted and political views expressed. The result is a lack of full consensus among constitutionalists as to what BiH really is. Most features support defining it as asymmetric federation, primarily due to its different internal structure – the decentralised Federation of Bosnia and Herzegovina (composed of ten cantons; hereinafter – FBiH), the centralised Republika Srpska (RS), and the Brčko District (Bieber 2008: p. 105).

The aim of the research and used methodology

The main aim of this research is to analyse selected aspects of political and legal implications of the presence of foreign judges in the Constitutional Court of Bosnia and Herzegovina (hereinafter also: CC BiH). The appointment of one-third of such a crucial political body by citizens of third countries is an uncommon phenomenon, therefore, all the more deserves an in-depth study. From the researcher’s point of view, it should also be noted that sufficient time has passed for the solutions in question, almost three decades, to be able to assess the effects of the solutions adopted in 1995. The circumstances and international position of Bosnia and Herzegovina have also changed. After obtaining the status of a candidate country for the European Union, its political system can be evaluated through the prism of the problems that will arise during the – probably long – integration process.

The article is aimed to verify the hypothesis that the presence of foreign judges, serving as “safeguards” in the composition of the Constitutional Court, has helped avoid typical ethnocratic solutions in BiH, but at the same time represents one of the main problems and challenges, leading to a deep legal and political crisis and calling into question the sovereignty of the country. For this purpose, research methods appropriate to social sciences were used, primarily the case study and elements of the institutional-legal method.

Origins of constitutional judiciary in Bosnia and Herzegovina

The constitutional judiciary in the area of the former Socialist Federal Republic of Yugoslavia has a rich history, especially compared to other socialist countries. As early as 1963, at both the federal and republican levels, new constitutions introduced constitutional judiciary. This process included the Socialist Republic of Bosnia and Herzegovina. Its Constitution, adopted in Sarajevo on 10 April 1963 (modified in 1969, see: Ustav Socijalističke Republike Bosne i Hercegovine 1969), defined the appointment, functioning, and powers of the CC BiH (art. 225–231). It is worth noting that these regulations did not differ – at least declaratively – from those adopted in Western democracies, e.g. they introduced the irrevocability of judges (with some exceptions related to resignation or a valid conviction for a crime) and the finality of the Court’s decisions. The scope of competencies was also typical for such organ, although it referred only to the republican level (Tadić 2017: p. 5). However, it should be remembered that equating the actual constitutional position and significance of the constitutional judiciary in democratic states and in authoritarian Yugoslavia would be unjustified due to the constitutional practice in the latter.

The next Constitution, adopted by republican parliament in Sarajevo in 1974, also included provisions related to the CC BiH, again copying the federal constitution in this regard. Formally, this legal state persisted until the declaration of independence and the establishment of the Republic of Bosnia and Herzegovina in 1992.2 However, it should be remembered that at the outbreak of the war in April of that year, the internationally recognised authorities in Sarajevo controlled only part of the republic’s territory, because most of it was under Serbian or Croatian troops’ control. Ultimately, under the pressure of the international community, primarily President Bill Clinton’s administration, the conflicting parties were forced to end the war and sign the Dayton Agreement in the fall of 1995, which included a series of provisions regarding the foundations of a common state, including the aforementioned Annex 4 containing the text of the new constitution.

Structure and operational principles of the Constitutional Court of Bosnia and Herzegovina. The issue of foreign judges

The current key provisions concerning the CC BiH are found in the extensively detailed Article VI of the Constitution of Bosnia and Herzegovina (see: Ustav Bosne i Hercegovine 1995; Constitution of Bosnia and Herzegovina 1995).3 Additionally, Article IV (par. 3(f)) lists the CC BiH as a body that assesses substantively and procedurally whether the legislative process in the parliament has violated the vital interests of any of the constituent nations (Gazić et al. 2023: p. 333). There is no separate law dedicated to this body; instead, the detailed regulations on the functioning, internal structure, and procedures of the Court are specified in internal legal act, namely the Rules of the Constitutional Court of Bosnia and Herzegovina (bos. Pravila Ustavnog suda Bosne i Hercegovine).

According to the provisions of the Constitution, the CC BiH is composed of nine members, four of whom are chosen by the House of Representatives of the Federation of Bosnia and Herzegovina, and two – by the National Assembly of the Republika Srpska. The remaining three positions are filled by the President of the European Court of Human Rights, in consultation with the Presidency of Bosnia and Herzegovina (a collegial three-member body representing Bosniaks, Serbs, and Croats). The Constitution sets no exceptionally high requirements for candidates for judges, who must simply be „distinguished jurists of high moral standing” (Constitution of Bosnia and Herzegovina 1995: art. VI, par. 1 (b)). There are no specific requirements regarding sufficiently long professional experience or academic achievements, which, in combination with political conditions, results in the fact that, on more than one occasion, positions in the CC BiH were occupied by people who did not necessarily meet the substantive requirements for judges in lower courts of general jurisdiction (Smailagić, Keranović 2011: p. 311). It should be noted that, unlike several other central-level bodies (e.g. the Presidency of BiH, the House of Peoples of the Parliamentary Assembly), the Constitution does not impose ethnocratic solutions that would limit selection only to representatives of the three constituent nations, discriminating against other citizens of Bosnia and Herzegovina (Marko 2004: p. 29). Nevertheless, in practice, only Bosniaks and Croats have been elected from the Federation to the CC BiH, and only Serbs from the Republic (Međunarodne sudije… 2024).

The Constitutional Court, in its new post-war form, officially commenced its operation on 22 May 1997, nearly 1.5 year after the signing of the peace agreement. According to its provisions, the term of the first composition lasted five years, expired in May 2002. During this period, the CC BiH issued several rulings in 2000 that led to the removal of discriminatory provisions from the constitutions of both entities, which targeted Serbs in the FBiH and Bosniaks and Croats in the RS. It is worth noting that this outcome was achieved thanks to the votes of foreign judges, as only the Bosniak members of the Court supported this position among the locals (Krysieniel 2012: p. 278).

Due to delays in the election of judges by the National Assembly of RS, the new composition could only convene for its inaugural session a year later, in May 2003. During this period, no sessions were held, nor any decisions were made, although numerous cases within the Court’s jurisdiction were formally submitted. From the spring of 2003, the CC BiH functioned without major disruptions for two decades (Tadić 2017: p. 6).

Article VI of the Constitution also regulates the scope of competencies of the CC BiH. Primarily, it is responsible for resolving disputes between entities (FBiH and RS), between the authorities of BiH and any of the entities, as well as between central-level institutions themselves. The Constitution particularly emphasises the role of the CC BiH in controlling the constitutionality of agreements made by entities with neighbouring countries, as well as laws and other legal acts adopted by the entities’ authorities. Additionally, it is granted the competencies of a higher (appellate) court in matters regulated by the Constitution if they have been decided by any court in Bosnia and Herzegovina. What may be surprising, however, is how the Constitution addresses the Court’s ability to review laws passed by the Parliamentary Assembly for compliance with the Constitution (and the Convention for the Protection of Human Rights and Fundamental Freedoms, which the Constitution explicitly mentions). This is possible when any court refers a question to the CC BiH in a particular case, the review of which depends on the content of the questioned law. Moreover, the Constitutional Court has clarified in its rulings that it can evaluate not only individual provisions contained in laws, but also entire legal acts (Steiner, Ademović 2010: p. 637). Summarising the powers and scope of tasks of the CC BiH, it can be stated that it combines classical solutions that are typical for the European model with certain elements of the Anglo-Saxon approach (Smailagić, Keranović 2011: p. 311).

The Constitution does not regulate the internal structure or the operation of the CC BiH. Specific solutions have been adopted in the aforementioned Rules of the Constitutional Court of BiH. The CC BiH can make decisions in one of three forms of sessions (Articles 8–12). These are: Plenary Court (all judges, requiring a majority of the full composition, i.e. five votes), Grand Chamber (only judges from Bosnia and Herzegovina) and Small Chamber (the president and two deputies, local judges).

For both the Plenary Court and the Grand Chamber, a quorum is five judges, while for the Small Chamber – all its members must be present. The president of the CC BiH can only be a judge selected by the parliament of one of the entities, hence must be a local judge (Articles 84–86). The term of the president of the CC BiH is three years. Simultaneously with the president, three deputies are selected, none of whom can come from the same constituent nation as the president, nor can they come from the same nation if the president is from one of the other constituent nations. Among the deputies, there may also be foreign judges.

A separate but extremely important issue, which is a key aspect of this research, is the appointment of three positions in the CC BiH by the President of the European Court of Human Rights. In Dayton, it was decided (and this formulation is included in the Constitution: art. VI, par. 1 (b)) that these positions would belong to foreign judges, none of whom can be citizen of a country neighbouring Bosnia and Herzegovina. This provision was aimed at excluding the possibility of choosing citizens of Croatia and Serbia, countries that were quite strongly, but formally only indirectly, involved in the conflict in BiH. It was explained that participation of foreign judges was intended to serve as a safeguard in case when the legislative and executive bodies undertook actions dangerous to the political and social stability of the country (Steiner, Ademović 2010: p. 625). Although the Constitution provides for the possibility that after five-year term of the first composition of the Court the Parliament could adopt a law specifying a different method for selecting the three judges than by the President of the European Court of Human Rights, this possibility has not been exercised.

It is worth emphasising that this specific international oversight was not limited to the CC BiH. A similar constitutional safeguard against potentially destructive actions by local politicians was also provided for the Central Bank of Bosnia and Herzegovina (Article VII of the BiH Constitution), where for the first six years, the position of governor was to be held by a person who was not a citizen of BiH or any neighbouring country.4

The aforementioned “safeguards” of appointing certain key state functions to foreigners can be considered as justified, but only until 1997, when the entities overseeing the implementation of the Dayton Agreement endowed the High Representative of the International Community (OHR), established under Annex 10, with extraordinary powers, effectively making BiH a protectorate.5 It should be noted that the Constitutional Court on numerous occasions refused to review the legal acts imposed by the High Representative. It was argued that the constitutional terms of reference did not provide for the possibility of reviewing acts of international law, and the CC BiH considered the OHR’s decisions to be precisely such. The above interpretation was adopted despite the fact that by its activities – parallel to the state bodies – the High Representative strongly interfered and interferes in the legal and political system of Bosnia and Herzegovina (Steiner, Ademović 2010: p. 749).

Bosnia and Herzegovina’s constitution has not introduced, except for the first composition, the tenure of judges. The only restriction on serving is reaching the age of 70. Earlier vacating of a position is possible in only two cases: upon the judge’s resignation or a unanimous decision by the remaining judges to remove the member from the Court.

Genesis and course of the crisis in the Constitutional Court

The personnel crisis began in November 2022, when Serbian judge Miodrag Simović resigned from his position due to age. Later, under pressure from the authorities of Republika Srpska (RS), Zlatko Knežević resigned in January 2024. Since the National Assembly did not elect anyone to replace them, there was no longer a judge from the RS in the Constitutional Court. This was the realisation of the goal set by the president of this entity and at the same time the most important politician in RS for many years – Milorad Dodik. He publicly stated that, in his opinion, since the decisions adopted by the majority in the CC BiH hit Serbs and the Republika Srpska, it would be rational to refrain from electing judges and undermine the legitimacy of this body (Maksimović 2023). Dodik’s attitude is a part of an escalation in political and legal conflict that arose from the Constitutional Court’s annulment in 2023 of several laws passed by the National Assembly of RS (addressing, among others, the seizure of real estate, the declaration of a national holiday, a refusal to enforce Constitutional Court’s verdicts in RS, and the publication of OHR’s decisions). However, an analysis of the distribution of votes during the decision-making on these politically important issues for the RS does not allow us to state that foreign judges played a decisive role and tipped the balance. Each time, the majority of local judges also voted to repeal the controversial provisions (Išerić 2024).

Among the arguments put forward by the Serbs from RS, the basic one emphasises the negative impact of the participation of representatives of other countries in the functioning of such important body as the CC BiH. They argue that this fact undermines the sovereignty of Bosnia and Herzegovina, creating a form of protectorate (especially in conjunction with OHR’s actions). Another issue is the lack of understanding of the legal, political, and social realities in this ethnically divided state, as well as the necessity to translate documents into foreign languages to enable participating judges to review them (which generates additional costs and slows down the process, especially during sessions). It is worth noting that, of the 12 foreign judges, who have served on the CC BiH since 1997, only two spoke any of the official state languages (Bosnian, Croatian, or Serbian). They were the Austrian Joseph Marco in 1997–2002, and the Macedonian Margarita Caca-Nikolovska in 2011–2020 (Išerić 2024).

The aforementioned language inconveniences became particularly visible from December 2022, when due to the lack of adequate number of local judges, it was not possible to convene the Grand Chamber sessions, and all cases had to be considered by the Plenary Court. This situation resulted in a significant slowdown in the pace of work, which contributed to the weakening of the role of the Constitutional Court as a body guarding human rights and freedoms.6 For comparison: from November 2021 to November 2022 (i.e. the moment when problems with the composition appeared), about 950 cases were considered, and in the following 12 months – only about 170 (Išerić 2024).

The main goal of Serbian politicians is to achieve the adoption of the law on the CC BiH, according to which the full composition of this body would be based on judges from Bosnia and Herzegovina. To this end, in August 2023, a draft law on the Constitutional Court was submitted to the Parliamentary Assembly of Bosnia and Herzegovina, which stipulates that within six months from the date of entry into force of the law, foreign judges will be replaced by local ones. If their election within this period does not take place, the mandate of foreign judges would expire anyway, and the Court would function on the basis of a 6-person composition. However, as of the time of drafting this article, parliamentary proceedings on this bill have not yet begun. It should be noted that this is not the first attempt to pass a law on the CC BiH. Similar efforts in 2007, 2010, and 2020 also failed, primarily due to resistance from Bosniak representatives (Išerić 2023).

Paradoxically, the demands to remove foreign judges from the CC BiH are also made by one of the most important Croatian politicians in BiH, Dragan Čović. He argues that such move would increase the numerical representation of Croatian judges, who, in coordination with Serbian judges, would diminish the influence of Bosniak judges, who usually vote similarly to foreign judges (Wankiewicz 2024). However, this seemingly reasonable pursuit by Serbian and Croatian politicians has a deeper motive, as the removal of foreign judges from the Court would likely further slow its work, limit the role and significance of yet another central governing institution, and thereby weaken the cohesion of the state. This situation could benefit regional authorities, which is precisely what the Serbs in Republika Srpska and Croats in the FBiH are counting on.

The Constitution itself does not help to solve the problem either, because it does not expressis verbis provide for the possibility of removing foreign judges from the Constitutional Court. It only mentions the oportunity of alternative method for their appointment, other than through the President of the European Court of Human Rights. Therefore, the key legal question is whether such law – should it be passed by parliament – would be constitutional. Two High Representatives – the previous one (Valentin Inzko) and the current one (Christian Schmidt) – were negative about such a possibility. Since the OHR has a competence to remove from the legal system of BiH any legal act that would pose a threat to the stability of the state, the chances of effectively carrying out the procedure of terminating the mandates of foreign judges are negligible (Išerić 2023).

It is worth emphasising that despite the negative circumstances indicated above, changes in the CC BiH are necessary to continue the process of integration with the European Union. Although in December 2022 BiH received the status of a candidate country, it was a gesture of purely symbolic meaning, rather without prospects for starting the actual negotiation process. The European Commission had already set a number of conditions for the authorities in Sarajevo (more precisely –14 priorities) that they must meet in order to start real talks. One of these priorities is the reform of the Constitutional Court and solving the problem of foreign judges (Transparency International 2021). In most cases, no significant improvement in the situation was noted.

During the peak of the Constitutional Court’s crisis, on 22 March 2024, a press conference was held with all judges present. During the event, the Court’s president Valerija Galić emphasised that, since November 2022, the Court has been operating under exceptional circumstances, because the lack of three local judges7 has made it impossible to convene sessions of the Grand Chamber, which in previous years reviewed approximately 99% of cases under appeals procedure. The plenary sessions considered only cases related to the assessment of the constitutionality of legal acts and a negligible part of appeals. The scale of the problem is evidenced by the data cited by Valerija Galić, according to which in 2023 the Constitutional Court received 5,465 cases from the scope of appeals and only 32 concerning the review of constitutionality. The partial paralysis of the CC BiH led to the situation that at the end of 2023 there were over 8,000 unfinished procedures (Ustavni sud BiH… 2024). Later, at the conference, the judges stated that the attempt to paralyse the activity of the CC BiH is a threat to the stability and existence of Bosnia and Herzegovina, and it constitutes another example of an attack on the independence of the judiciary, reflecting a broader global trend.8 Therefore, in the judges’ opinion, all possible steps, in accordance with the Constitution, had to be taken to ensure the continuity of the functioning of the body.

Faced the threat of complete inability to make any decisions due to a lack of the required quorum, a change was made in regulations regarding the performance of duties by a judge after the age of 70 (Odluka… 2024). A new provision (Article 99.a) was added to extend a judge’s mandate exceptionally if the relevant body fails to appoint a successor by the time, when the term expires.

It is noteworthy that the controversial concept of extending the sitting of judges in the CC BiH beyond the constitutionally defined age of 70 was put forward in March 2024 by Venice Commission (Opinion No. 1176/2024, see: Venice Commission 2024).9 In addition to this solution, it was proposed, among others, to appoint ad hoc judges, who – following the solutions in force in Austria, Chile, or Liechtenstein – would fill vacant positions. Ultimately, it was decided to extend the mandate until a successor was elected, which on the one hand allowed the Constitutional Court to avoid complete paralysis, but on the other hand – exposed this body to accusations of acting in violation of the Constitution, which formally it supposed to guard.

Conclusions

According to the provisions of the Constitution, the removal of foreign judges from the CC BiH requires introducing changes to the fundamental law by the Parliamentary Assembly. The amendment would have to be accepted by both houses of parliament, with a two-thirds majority required in the House of Representatives. However, looking rationally, the chances of reaching such a compromise are minimal – in thirty years, the Constitution of Bosnia and Herzegovina has been amended only once, in March 2009 (provisions concerning the Brčko District were included in it). The amendment was possible only after an agreement was reached among the most important party leaders representing all three constituent nations. In current reality, it is difficult to imagine reaching such compromise, when the national interests related to the continued functioning of foreign judges in the CC BiH are contradictory (Bosniaks versus Serbs and Croats). The lack of chances to reach any agreement was also influenced by the fierce political rivalry before the local elections held on 6 October 2024 (Išerić 2023).

The problem of the presence of foreign judges in the CC BiH seems to be disproportionately greater than the role that they actually play. Their participation is limited only to the work of the Plenary Court, which normally deals with only a small part of the cases flowing to the Constitutional Court. Similarly, it is impossible to defend the thesis put forward by Serbian politicians that foreign judges are biased, and their activity contributes to attacks on the Republika Srpska and affects the limitation of its independence. On the other hand, it should be noted that there are voices from high-ranking Western politicians directly indicating that the reason for maintaining the presence of foreign judges in the CC BiH is the policy of the authorities of the Republika Srpska (Williamson’s… 2025).

Of course, it does not change the fact that the mere presence of foreigners in the Constitutional Court indicates the limited sovereignty of BiH as a country aspiring to join the European Union. If there is to be any progress in the process of integration with the EU, the influence of the international community on the political system of Bosnia and Herzegovina must be limited. In the current reality, i.e. with an almost potentially omnipotent High Representative and foreigners in the CC BiH, there is no such possibility. However, solving this problem is not easy, because, paradoxically, the presence of external entities is the most important guarantee of the continued existence of BiH as a political entity. Without this external “brake”, strong centrifugal tendencies, visible especially among the Serbs, could lead to the disintegration of the state and destabilisation of the situation in the region.

Finally, referring to the hypothesis put forward, it can be viewed precisely through the prism of this specific situation with no way out. Without a doubt, the presence of foreign judges in the composition of the Constitutional Court proves the lack of full state sovereignty of BiH, but on the other hand, a significant part of the democratic changes in the law, including the constitutions of both entities, were made thanks to the active participation of these judges, with the opposition of the majority of local judges. Therefore, we can draw the sad conclusion that the solution limiting the sovereignty of BiH de facto supports maintaining its relative unity as a state entity. Taking into account not only the announcements of actions but the steps already taken in recent years by some key politicians, handing control of the Constitutional Court entirely to judges from BiH, appointed by representatives of nationalist parties, could mean the total paralysis of this body.

Krzysztof Krysieniel – PhD in social sciences, professor at the WSB Merito University in Poznań, Faculty in Chorzów. Research interests: political systems and constitutional law of post-Yugoslav countries, especially Bosnia and Herzegovina and Croatia. Latest publication: Wybory generalne w Bośni i Hercegowinie w 2022 roku – aspekty prawne i polityczne, „Studia Politologiczne” 2024, no. 3.

Krzysztof Krysienel – dr hab. nauk społecznych, profesor na Wydziale Chorzowskim WSB Merito w Poznaniu. Zainteresowania badawcze: systemy polityczne i prawo konstytucyjne krajów byłej Jugosławii, zwłaszcza Bośni i Hercegowiny oraz Chorwacji. Najnowsza publikacja: Wybory generalne w Bośni i Hercegowinie w 2022 roku – aspekty prawne i polityczne, „Studia Politologiczne” 2024, nr 3.

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Ustav Socijalističke Republike Bosne i Hercegovine (1969) sa ustavnim amandmanima i ustavnim zakonima, Sarajevo, https://radnici.ba/wp-content/uploads/2018/04/Ustav-SRBIH-1963-sa-amandmanima.pdf (30.04.2018).

Ustavni sud BiH: Međunarodne sudije ostaju, duži mandat onima koji trebaju u penziju (2024), https://balkans.aljazeera.net/news/balkan/2024/3/22/ustavni-sud-bih-medjunarodne-sudije-ostaju-duzi-mandat-onima-koji-trebaju-u-penziju (22.03.2024)

VENICE COMMISION (2024), Opinion on certain questions relating to the functioning of the Constitutional Court of Bosnia and Herzegovina, Adopted by the Venice Commission at its 138th Plenary Session (Venice, 15-16 March 2024), Opinion No. 1176/2024, CDL-AD(2024)002, Strasbourg, 18 March 2024, https://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2024)002-e (18.03.2024).

WANKIEWICZ Paulina (2024), Dispute over the justice system in Bosnia and Herzegovina, „Analyses”, Centre for Eastern Studies, https://www.osw.waw.pl/en/publikacje/analyses/2024-02-12/dispute-over-justice-system-bosnia-and-herzegovina (12.02.2024).

WILLIAMSON’S: Foreign judges are in BiH Const. Court because of RS authorities (2025), https://n1info.ba/english/news/williamsons-foreign-judges-are-in-bih-const-court-because-of-rs-authorities/ (27.03.2025).

1 Although the General Framework Agreement for Peace in Bosnia and Herzegovina (well-known as Dayton Agreement) was formally signed in December 1995 in Paris, however, there was Dayton, where key decisions were made for the future of BiH.

2 The last consolidated text of the Constitution of the Republic of Bosnia and Herzegovina was announced during the war on 24 February 1993. Part XIII was entirely devoted to the Constitutional Court.

An unofficial but widely used text of the Constitution (in three language versions: Bosnian, Serbian, and Croatian) is available on the website of the Constitutional Court: https://www.ustavnisud.ba

The original version (in English) can be found, for example, on the website of the High Representative (OHR).

This position was filled by New Zealander Peter Nicholl.

5 The OHR can repeal or impose any legal act, including laws passed by the Parliamentary Assembly, amend the constitutions of both entities and the Brčko District, and remove any person from their position, even if they are elected through popular elections, including members of the Presidency.

6 Due to the memory of the tragic consequences of the war, human rights are particularly strongly articulated in the Constitution of Bosnia and Herzegovina, including the direct application of the Convention for the Protection of Human Rights and Fundamental Freedoms (Article 2), which takes precedence over other laws.

7 In addition to the judges from RS, one of the judges from FBiH was not elected – due to the lack of political agreement in the parliament of this entity.

The attack on the rule of law occurring in Poland was cited at the conference as one of several other examples.

9 One of the members of the 5-person team appointed to consider the problem was Hanna Suchocka.

Received: 30.10.2024. Accepted: 20.05.2025.

Przegląd Europejski – European Studies Quarterly, ISSN: 1641-2478

vol. 2025, no. 1

Copyright © by Maria Ochwat, 2025

Creative Commons Attribution 4.0 (CC BY 4.0)

http://creativecommons.org/licenses/by/4.0/

DOI: https://doi.org/10.31338/1641-2478pe.1.25.5

An examination of human rights conditions in Bosnia and Herzegovina: a case study approach

Maria Ochwat, independent researcher (Szczecin, Poland)

E-mail: mochwat@gmail.com

https://www.orcid.org/0000-0001-6192-423X

Abstract

It will soon be 30 years since the end of the war in Bosnia and Herzegovina (BiH). Despite the establishment of the International Criminal Tribunal for the former Yugoslavia, Bosnia and Herzegovina’s membership in the UN and the Council of Europe, and recently obtaining the status of EU candidate country, the human rights situation in BiH remains unsatisfactory. The aim of this article is to analyse the situation of human rights in Bosnia and Herzegovina over the last few years, however, in a slightly broader historical context, taking into account the role of the International Tribunal for the former Yugoslavia. This article is divided into three parts. The first part presents the role of the Tribunal, the second part analyses documents and institutions for the protection of human rights, and the third part demonstrates how the state implements human rights.

Keywords: Europe, Bosnia and Herzegovina, human rights, International Criminal Tribunal for the former Yugoslavia, International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica

Analiza przestrzegania praw człowieka w Bośni i Hercegowinie: podejście oparte na studium przypadku

Streszczenie

Niebawem minie 30 lat od zakończenia wojny w Bośni i Hercegowinie (BiH). Mimo utworzenia Między-narodowego Trybunału Karnego ds. byłej Jugosławii, członkostwa Bośni i Hercegowiny w ONZ, Radzie Europy, a ostatnio uzyskanie statusu państwa kandydującego do UE, sytuacja poszanowania praw człowieka w BiH wciąż pozostaje niezadowalająca. Celem artykułu jest analiza sytuacji z przestrzeganiem praw człowieka w Bośni i Hercegowinie na przestrzeni ostatnich kilku lat, jednakże w nieco szerszym kontekście historycznym i z uwzględnieniem roli Międzynarodowego Trybunału Karnego ds. byłej Jugosławii. Niniejszy artykuł podzielony jest na trzy części. W pierwszej przedstawiono rolę Trybunału, w drugiej – dokumenty oraz instytucje ochrony praw człowieka, w trzeciej – pokazano jak państwo realizuje prawa człowieka.

Słowa kluczowe: Europa, Bośnia i Hercegowina, prawa człowieka, Międzynarodowy Trybunał Karny ds. byłej Jugosławii, Międzynarodowy Dzień Refleksji i Upamiętnienia Ludobójstwa w Srebrenicy w 1995 roku

“Hundreds of men buried alive, men and women mutilated and slaughtered, children killed before their mothers’ eyes, a grandfather forced to eat the liver of his own grandson. These are truly scenes from hell, written on the darkest pages of human history” (UN ICTY 1995) – this is how the Srebrenica genocide was described by Riad, a judge at the International Criminal Tribunal for the former Yugoslavia in The Hague, in November 1995, just months after the worst crime in Europe since the Second World War.

In 2025 will be 30 years since the end of the war in Bosnia and Herzegovina (BiH). In May 2024, the UN adopted a resolution to establish 11 July as International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica (United Nations 2024), which triggered a series of tensions in the Western Balkans region. This document was initiated by BiH, Germany and Rwanda, and such a long-term goal is supposed to be reconciliation between the peoples of BiH. While the Bosnian side argued that the adoption of the resolution would end the infamous practice of genocide denial, the Serbian political elite felt that the document targeted the Serbs and labelled them as a ‘genocide’ nation. However, contrary to the Serbian narrative, the resolution does not address the issue of the collective responsibility of the nation, but condemns the denial of genocide and the glorification of war criminals, and calls on member states to develop appropriate educational programmes with due regard to historical facts.

Since 1992, BiH has been a member of the United Nations (see more: UN Bosnia and Herzegovina WWW), and since 2002 – of the Council of Europe (see more: Council of Europe Office in Sarajevo WWW). In 2016, BiH applied to join the European Union. In 2022, it was granted EU candidate status on the assumption that the country takes the steps set out in the Commission’s Communication of 12 October 2022 on EU Enlargement Policy to strengthen the rule of law, the fight against corruption and organised crime, migration management and fundamental rights (European Commission 2022). Unfortunately, the human rights situation in BiH continues to be of concern for many international human rights organisations.

The aim, hypothesis and research methods

The aim of this article is to analyse the situation of human rights in Bosnia and Herzegovina over the last few years, however, in a slightly broader historical context, taking into account the role of the International Tribunal for the former Yugoslavia.

The hypothesis: despite BiH’s accession to international human rights organisations such as the UN or the Council of Europe, as well as its application for membership of the European Union, the authorities continue to fail to comply with international human rights standards and do not take sufficiently effective measures to eliminate human rights violations.

The following research methods will be used to achieve the intended purpose and verify the hypothesis: historical, comparative, document analysis. In addition, the author will use normative, realist, institutional, functional, behavioural and system approaches.

The International Criminal Tribunal for the former Yugoslavia –its role and the path to justice

The immediate reason for the establishment of the International Criminal Tribunal for the former Yugoslavia was the need to try and punish those guilty of crimes of genocide, crimes against humanity, and war crimes committed between 1992 and 1995 in Bosnia and Herzegovina. The warring parties were the Bosnian Serbs fighting for autonomy and the Bosniaks together with the Croats, who had been confederated with them for some time. As a result of hostilities, and above all ethnic cleansing, between 97,000 and 110,000 people died (some sources even claim that up to 200,000) and more than 1.8 million were forced to leave their homes. All parties of the conflict committed numerous ethnic cleansings, looting and rape of civilians. The conflict included the Srebrenica massacre, now considered as the largest genocide in Europe since World War II. In July 1995, the Armed Forces of the Republika Srpska (VRS) murdered over 8,000 Bosnian Muslims – men and boys. Until now, the remains of all the victims have not been identified, and some of them have still not been found. Women and children were also victims of ethnic cleansing carried out by the Serbs. The war and ethnic cleansing, which lasted almost four years, ended with the Dayton Agreement enforced by the North Atlantic Alliance NATO (Ośrodek Informacji ONZ w Warszawie 2005).

The International Criminal Tribunal for the former Yugoslavia was established by UN Security Council’s resolution of 25 May 1993 (S/RES/827 (1993)). The Tribunal operated on the basis of a Statute of the same date but amended nine times.1 The procedure for the internal workings of the Tribunal is set out in the Rules of Procedure and Evidence of 11 February 19942 (UN ICTY 2015). In addition, other regulations also deserve attention, such as the Practice Directions, which “contain policies defining certain practical aspects of judicial proceedings and other legal procedures related to the Tribunal’s work” (UN ICTY WWW). We are referring in particular to the provisions on issues such as access to confidential material, appeals, contempt, rules of procedure and evidence, sentences and miscellaneous (see: UN ICTY WWW).

It is worth looking at the jurisdiction of the Tribunal (see: UN ICTY 2009). Its jurisdiction ratione materiae, included the prosecution of those guilty of: grave breaches of the Geneva Conventions of 12 August 1949, violations of the laws and customs of war, genocide and crimes against humanity.

Grave breaches of the Geneva Conventions include the following acts, directed against persons or property protected under the provisions of these documents: willful murder; torture or inhuman treatment, including biological experiments; willful infliction of great suffering or grievous bodily or health harm; destruction and appropriation of property, not justified by military necessity and done on a large scale in an unlawful and arbitrary manner; forcing a prisoner of war or civilian to serve in the armed forces of an enemy power; intentionally depriving a prisoner of war or civilian of the right to a fair trial conducted in the normal course; unlawful deportation, resettlement or unlawful deprivation of liberty of a civilian or taking civilians hostage (UN ICTY 2009: art. 2). Violations of the laws and customs of war include, inter alia, acts such as the use of poisoned weapons or other weapons intended to inflict excessive suffering; arbitrary destruction of towns and villages or their devastation not justified by military necessity; attacking or bombarding by any means undefended towns, villages, dwellings and buildings; seizure, destruction or willful devastation of religious, charitable, educational, artistic, scientific institutions, monuments, works of art and science; looting of public or private property (UN ICTY 2009: art. 3). Genocide, on the other hand, according to Article 4 of the Statute of the International Tribunal, “means any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group”, namely: the murder of members of such group; causing serious bodily or health damage to members of the group; deliberately creating “conditions of life for the group calculated to bring about its physical destruction in whole or in part”; using measures to stop births within the group; forcibly transferring children of members of the group to another group (UN ICTY 2009: art. 4, par. 2). At the same time, it was emphasised that the following acts are punishable: “genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; complicity in genocide” (UN ICTY 2009: art. 4, par. 3). Finally, crimes against humanity, which are crimes against civilian population committed during an international or internal armed conflict, such as: “murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial and religious grounds; and other inhumane acts” (UN ICTY 2009: art. 5).

Jurisdiction ratione personae applies to persons committing or ordering the acts referred to in ratione materiae (UN ICTY 2009: art. 1). Any natural person regardless of nationality, “who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or exercution” of the aforementioned crimes in the territory, over which the Tribunal’s jurisdiction extends, was to be responsible to the International Tribunal (UN ICTY 2009: art. 7, par. 1). It is worth noting that the official position of any accused person, whether as head of state, head or member of government, did not absolve them from individual criminal responsibility for the crimes committed (UN ICTY 2009: art. 7, par. 2). In addition – the failure to prevent the crime or the failure to punish the guilty by superiors, who knew or could have known of the crime committed, was also punishable by the ICTY (UN ICTY 2009: art. 7, par. 3). Finally, acting on orders also did not exempt one from criminal responsibility, with a certain exception. Well, it could be a basis for exemption from criminal responsibility if the Tribunal found that justice required it (UN ICTY 2009: art. 7, par. 4).

Speaking about the competence ratione loci, it should be noted that the territorial jurisdiction of the International Tribunal for the former Yugoslavia covers “the territory of the former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and territorial waters”. On the other hand, when considering ratione temporare, it should be noted that the ICTY can exercise jurisdiction over crimes listed in the Statute committed since 1 January 1991 (UN ICTY 2009: art. 8).

During 24 years of activity, the International Criminal Tribunal for the former Yugoslavia has indicted 161 people from BiH, Serbia, Croatia, Montenegro and Kosovo, while convicting 83. The ICTY tried, among others, former president of the self-proclaimed Serb Republic of Bosnia and Herzegovina Radovan Karadžić, former Serbian and Yugoslav president Slobodan Milošević, and Bosnian Serb commander Ratko Mladić (Bowcott 2017). To handle appeals following the closure of the ICTY, the UN established in 2010 the so-called United Nations Mechanism for International Criminal Tribunals (MICT) – the international tribunal that will take over the jurisdiction and core functions of the Yugoslavia and Rwanda tribunals once their mandates end.

The International Criminal Tribunal for the former Yugoslavia is seen as a „key step towards the establishment” of the International Criminal Court (ICC). Over the past two decades, the Court has irreversibly changed the landscape of international criminal and humanitarian law. However, there is no shortage of criticisms, such as the procedure itself, the high costs, the length of the proceedings, and the fact that around two-thirds of the accused are Serbs (Bowcott 2017).

Documents, institutions and implementation mechanisms on human rights in Bosnia and Herzegovina

Respect for human rights and personal dignity, freedom, equality, peace, justice, tolerance and reconciliation (preamble of the Constitution) is guaranteed by the Constitution of Bosnia and Herzegovina from 1995. In Article II par. 1, Bosnia and Herzegovina “ensure the highest level of internationally recognized human rights and fundamental freedoms”. At the same time, in par. 2, it is ensured that all rights and freedoms indicated in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Additional Protocols are guaranteed and respected. Furthermore, it was emphasised that these documents „shall have priority over all other law” (Constitution of Bosnia and Herzegovina 1995: art. II, par. 3).

These rights and freedoms, as indicated in the aforementioned Convention and Additional Protocols, as mentioned in paragraph 3 of the Constitution, are guaranteed not only to citizens, but also to all persons residing in the territory of BiH. This point lists such rights and freedoms as the right to life, the prohibition of torture and inhuman treatment or punishment, the prohibition of slavery, the right to liberty and security of person, the right to a fair trial, the right to respect for private and family life and secrecy of correspondence, freedom of thought, conscience and religion, freedom of expression, freedom of assembly and association, the prohibition of discrimination, the right to marry and to found a family, the right to property, the right to education, and the right to freedom of movement and residence. It is also prohibited to discriminate against anyone on the grounds of „sex, race, colour, language, religion, political or other opinion, national origin or national or social origin, association with a national minority, property, birth or other status” (Constitution of Bosnia and Herzegovina 1995: art. II, par. 4). Special attention has been given to refugees and displaced persons, who „have the right freely to return to their homes of origin”, as well as the right „to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any such property that cannot be restored to them. Any commitments or statements relating to such property made under duress are null and void” (Constitution of Bosnia and Herzegovina 1995: art. II, par. 5).

BiH is also party to a number of international human rights documents. It is worth pointing out here, for example: International Covenant on Civil and Political Rights (1966) together with two Optional Protocols (1966, 1989) aiming to the abolition of the death penalty, International Covenant on Economic, Social and Cultural Rights (1966), Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) together with Optional Protocol, International Convention for the Protection of All Persons from Enforced Disappearance (2006), Convention on the Elimination of All Forms of Discrimination against Women (1979), International Convention on the Elimination of All Forms of Racial Discrimination (1965), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), Convention on the Rights of the Child (1989) with two Additional Protocols, Convention on the Rights of Persons with Disabilities (2006), European Convention on Human Rights (1950) and others.

In principle, according to Article II, par. 6 of the Constitution, all bodies and institutions are responsible for respecting human rights in BiH. However, the courts and the ombudsman have a special role in this regard. At the same time, readiness has been expressed to cooperate with the International Criminal Tribunal for the former Yugoslavia and international organisations dealing with the protection of human rights and humanitarian assistance, authorised by the United Nations Security Council.

Originally, under Annex VI to the Dayton Agreement, the institution set up to protect human rights in BiH was to be the Human Rights Commission, consisting of the Office of the Ombudsman and the Human Rights Chamber (Sloan 1996).

The Human Rights Chamber, composed of 14 members (eight of whom were from outside of BiH) constituted a quasi-international judicial body. It had a mandate to hear cases of human rights violations identified in the ECHR and other international human rights documents to which it was a party. The Chamber could be reached indirectly – through the Ombudsman, or directly. This could be done by interested parties, NGOs and civic groups. If the Chamber considered a complaint to be potentially justified (and in accordance with the rules), then proceedings were initiated. Such proceedings could end in an amicable settlement (which happened only once in the institution’s history) or in an obligation to remedy the damage or pay compensation. The majority of cases heard by the Chamber were related to the right to property. These involved situations, in which property rights had been violated in connection with war and forced displacement.

The Chamber operated from 1996 to 2003. It was originally intended to operate only until 2000, but due to the unstable political situation, a duration was extended until 2003. However, the Chamber did not manage to deal with all the cases that came to it. Almost 9,000 cases were referred to a newly created body, the Human Rights Commission of the Constitutional Court. The Commission consisted of five former judges of the Human Rights Chamber (two of them, until the end of 2004, were foreign judges). The Commission gradually dealt with the backlog of cases, and by the time it was disbanded (i.e. 2006) there were only 595 cases left. These cases were already being considered by the Constitutional Court, which had completed all proceedings by mid-2007 (Steiner, Ademović 2010).

It is worthwhile at this point to look at the institution of Ombudsman, which is still in place today. The first Ombudsman law3 was imposed by Wolfgang Petritsch (the High Representative) in 2000, when attempts by the state to enact such a law failed (see: OHR 2002). The current legal basis for the institution of Ombudsman is the Law on the Human Rights Ombudsman of Bosnia and Herzegovina (2002), amended in 2004 and 2006 (see: Law amending... 2004; Law on amendments... 2006).

According to Article 8 of the amended Ombudsman law, the institution of Ombudsman is composed of three members. The term of office is six years, and members are elected by both houses of Parliament (the House of Representatives and the House of Peoples) by majority vote. In order to be eligible for a seat in this institution, one has to document his/her origin of one of the three constituent nations (Serb, Bosniac, and Croat), „which shall not preclude the possibility of appointing the Ombudsmen from among the Others” (art. 8, par 7). In addition, candidates must have: at least ten years of experience in any of the legal professions, a distinguished professional record and experience in topics related to the protection of human rights (art. 11). The coordination of the work of this collegial body is handled by all members on a rotating basis. Each of them serves as chair for two years and the order is determined by alphabetical order (art. 8, par. 6). Ombudsmen, in the performance of their duties, are independent and autonomous. They must act in accordance with the laws in force in Bosnia and Herzegovina, including those arising from international obligations (art. 15). They have full immunity, and possible indictment and arrest is only possible with the consent of both houses of parliament and only for offences punishable by imprisonment of at least five years (art. 16). Article 17, in turn, introduces a prohibition on combining the position of ombudsman with any professional activity or political activity.

The primary object of the Human Rights Ombudsman institution is to deal with cases of malfunctioning or violation of human rights and freedoms by any authority at any of its many levels (art. 2). Ombudsmen may act on the basis of a complaint or ex officio. Proceedings may be conducted not only against administrative bodies, but also against the armed forces (art. 3) and the judiciary (art. 4), although in the latter case it concerns procedures but not judgments. A complaint may be lodged by any natural or legal person who has a legal interest (art. 18). It should be in writing and signed. Complaints submitted in a less formal manner may be considered, but this is decided by the ombudsman (art. 19). All authorities in BiH are obliged to co-operate with the Human Rights Ombudsman (art. 25), including in particular the provision of information, including occluded information (art. 28). When an abuse, arbitrariness of a procedure, discrimination, error, negligence committed by a representative of an administrative body is demonstrated during an investigation, the Ombudsman presents the findings to that person and at the same time forwards the information to his/her superior, attaching relevant conclusions (art. 29).

It is worth emphasising that the institution of the Human Rights Ombudsman is not a sovereign body. It can make recommendations to individual authorities (art. 32), but it cannot force action (e.g. to change laws). An important tool that can improve the situation of human rights protection is the annual reports (art. 34), which are submitted to the members of the BiH Presidium, the Parliamentary Assembly and the parliaments of both entities.

Implementation of human rights and freedoms in Bosnia and Herzegovina

Despite the adoption of many documents on human rights, the creation of institutions and monitoring mechanisms, the human rights situation in Bosnia and Herzegovina is of concern to many international human rights organisations. Among the most frequently violated rights and freedoms are: freedom of expression, freedom of assembly and association, freedom of thought, conscience and religion, torture and inhuman or cruel treatment or punishment, the right to a fair trial, political rights and labour rights. There is racial and ethnic discrimination, as well as discrimination against LGBTI people and persons with disabilities. In addition, there have been reports of ill-treatment of migrants, refugees, stateless persons or asylum seekers. Other serious problems include domestic violence, corruption, serious air pollution, but also impunity and delays in the prosecution and punishment of persons who have committed serious human rights violations. Poor conditions in prisons and detention centres are also mentioned.

Discrimination and intolerance, mainly on the basis of ethnicity, religion, gender or against persons belonging to the LGBTI community, is a serious problem in Bosnia and Herzegovina. According to the OSCE, 91 hate crimes on ethnic or religious grounds were committed between January and June 2023, four of which involved physical violence. By the end of 2023, “13 hate crime trials were ongoing and 1 person was convicted in 2022” (Human Rights Watch 2023: p. 86). UN High Commissioner for Human Rights Michelle Bachelet highlighted discrimination based on ethnicity, gender and sexual orientation, and raised concerns about access to education, social protection and the rights of Roma people and persons with disabilities (see: UN High Commissioner for Human Rights 2022). In addition, it is worth noting that there is “long-standing political discrimination against Jews, Roma and other minorities” in BiH, who are not allowed to stand as candidates in presidential elections, despite a slight “increase in the number of seats for such minorities in the upper house of the Federation Parliament” (Human Rights Watch 2023: p. 86). According to UNICEF and UNDP, the COVID-19 pandemic has increased poverty and food shortages in Bosnia and Herzegovina, as well as exacerbated social and economic inequalities, especially among already disadvantaged groups and those at risk of deprivation, or groups considered as “vulnerable” (UNDP 2021).

Discrimination also affects representatives of the LGBTI community. In Gallup World Poll conducted in 175 countries, BiH was ranked as one of the most hostile places in the world for LGBTI people, scoring 144th in LGBT Acceptance Index (Flores 2021: p. 33). According to human rights organisations, threats, such physical attacks, are directed against members of this community. LGBTI activists face “widespread discriminattory speech on social media platforms, including from public officials” (Amnesty International 2023).

In Bosnia and Herzegovina, racial, ethnic and other hate speech is prohibited. Unfortunately, state authorities have sporadically enforced regulations concerning hate speech (U.S. Department of State 2023).

According to the Press Freedom Index, BiH was ranked 81st (out of 180 countries) in 2024 (see: Reporters without Borders 2024). The year before, it was in 64th place (see: Reporters without Borders 2023), and in 67th place in 2022 (see: Reporters without Borders 2022).4 The realisation of freedom of expression, including the media and the quality of journalism, is quite varied across the country (Human Rights Watch 2023). It can be said that the media operate in a rather unfavourable political and economic climate. It is not uncommon for politicians to exert pressure on the media, especially the public media, and persecute investigative journalists in particular. Journalists are sometimes intimidated, prosecuted for alleged violations of their freedom of expression, their homes are broken into, their computers are stolen, other journalistic equipment is also destroyed, and they are hindered in their work by, for example, obstructing access to public information or preventing them from attending press conferences convened by political representatives (U.S. Department of State 2023). According to the BiH Journalists’ Association, more than 70 such cases were reported in 2023, of which less than 25% were investigated (Amnesty International 2023).

According to Reporters Without Borders, however, there was no murder of a journalist or media worker between 2000 and 2024. The functioning of the media is further hampered by uneasy economic situation, as well as numerous ethnic, racial and cultural divisions (U.S. Department of State 2023). However, experts claim that the situation of the media is slightly better in Sarajevo or the Federation of Bosnia and Herzegovina (Human Rights Watch 2023). In Republika Srpska, on 20 July 2023, the RS National Assembly recognised defamation as an offence punishable by a fine of up to BAM 3,000 (EUR 1,500). At the same time, defamation itself was rather vaguely defined, and as a consequence, this will mean that journalists will self-censor for fear of the consequences lurking in front of them (ENCL 2024). The UN, the Council of Europe and the EU have condemned the move, saying that BiH violates international human rights standards (Amnesty International 2023).

Although BiH guarantees the freedom of assembly and association, the authorities have infrequently restricted this freedom. The country has as many as 12 laws regulating the freedoms of assembly and association in different parts of the country. Most of them, according to NGOs and the OSCE, contain very restrictive provisions. For example: in Republika Srpska, assemblies near numerous public institutions are prohibited, while some cantonal laws in the Federation (e.g. in the canton of Central Bosnia) provided for criminal liability for failure to comply with administrative procedures related to the organisation of peaceful assemblies.5 The only law that fully complied with international human rights standards was the Law on Public Assembly in Brcko District (OSCE 2021: p. 29, 31; OSCE 2023: p. 1). For years, the authorities made no effort to amend any of the other 11 laws to bring them in line with European standards. Only in 2023 Bosnia and Herzegovina, with OSCE support, committed to harmonise the legal norms in the country with international standards (OSCE 2023). On the other hand, as far as respect for freedom of association is concerned, it can be said that it was generally respected by the authorities. Nevertheless, some NGOs complained that the government only granted funds to groups that were established, fully controlled or affiliated with the ruling political parties and that carried out activities in support of the government (U.S. Department of State 2023: p. 26).

A worrying measure, targeting the activities of human rights organisations, is the adoption by the National Assembly of Republika Srpska of the Law on the Special Registry and Transparency of the Work of Nonprofit Organisations in 2023. Under this document, a register of foreign-funded NGOs classified as “agents of foreign influence” was created, and a number of obligations were imposed on NGOs to report their activities. Severe penalties were introduced for non-compliance (ENCL, ICNL 2024). This document has been criticised by international organisations, including the Council of Europe Commissioner for Human Rights, according to whom such a law would further restrict the rights of NGOs and human rights defenders (COE 2023a), and the EU has called for its withdrawal (EEAS 2023).

Respect for workers’ rights is also worth mentioning at this point. While workers have the freedom to form and join independent trade unions, to bargain collectively and to strike legally, in practice this freedom has not always been respected, and the authorities have seemed to do little about it. Employers, who prevent workers from associating, threatened with dismissal or even fired union leaders or supporters have gone essentially unpunished (U.S. Department of State 2023: p. 66–71).

Although BiH guarantees the right to a fair trial and mentions the independence of the judiciary in the Constitution, it should be noted that, according to human rights organisations, it is not uncommon for politicians to influence the judiciary, especially in corruption cases. Furthermore, the authorities have not always respected judicial rulings, especially those of the Constitutional Court (U.S. Department of State 2023).

At this point, it is also worth mentioning respect for the right to truth, justice and reparation. The pace of prosecution of war crimes is unfortunately too slow, and the perpetrators continue to go unpunished6 (U.S. Department of State 2023: p. 3).

In 2023, the Council of Ministers extended the original deadline for the consideration of the remaining complex war crimes cases from December 2023 to 2025. In turn, the International Residual Mechanism for Criminal Tribunals “confirmed the original guilty verdicts for former Serbian state security officials Jovica Stanišić and Franko Simatović, increasing their prison sentences from 12 to 15 years for war crimes and crimes against humanity in six municipalities of BiH” (Amnesty International 2023).

However, the glorification by high officials of Republika Srpska at the highest levels, of war criminals and the feeling of absolute impunity is cause for concern (U.S. Department of State 2023). According to the Srebrenica 2023 Genocide Denial Report, published by the Srebrenica Memorial Center, there were 90 cases of genocide denial between May 2022 and May 2023 alone. A year earlier, 693 such cases were reported (Džananović et al. 2023).

BiH is a religiously diverse country. Approximately 50.7% are Muslim, 30.7% – Orthodox, 15.2% – Roman Catholic, atheist – 0.8%, agnostic – 0.3%, other – 1.2%, undeclared 1.1% (CIA 2024). Tensions between adherents of different religions led to conflict in the 1990s and, despite the end of the conflict, continue to occur (see: USIP WWW). Although the European Commission’s Bosnia and Herzegovina 2022 Report (see: European Commission 2022), as well as Bosnia and Herzegovina 2023 Report (see: European Commission 2023) emphasised that freedom of thought, conscience and religion is generally respected, the BiH Interreligious Council registered many acts of vandalism in religious buildings, cemeteries, as well as aggression against religious officials (U.S. Department of State 2024). Organization for Security and Co-operation in Europe (OSCE) has reported dozens of incidents targeting Muslims, Christians, Orthodox Christians and Jews. The actual number of such religiously motivated incidents was much higher, but members of religious groups were afraid to report them (see: USIP WWW).

According to Muslim, Catholic and Serbian Orthodox religious communities, authorities discriminate against them in regions, where they are religious minorities, including by selectively enforcing their rights regarding access to education, language integration, employment, healthcare and other social services (U.S. Department of State 2024).

According to UN Women, “In Bosnia and Herzegovina (BiH) every second woman experienced some form of violence since the age of 15. This violence is often seen as socially acceptable behavior justified by traditional patriarchal norms and gender stereotypes” (UN Women 2020). The crime of rape (regardless of gender), domestic violence and violence against a partner is criminalised by law (Criminal Code of Bosnia and Hercegovina 2003: art. 203). The current legislation unfortunately does not adequately protect victims of violence, as evidenced e.g. by allowing the perpetrator to return home in less than 24 hours. Despite the existence of provisions for the removal of the perpetrator from the home, in practice officials rarely did so, even when the perpetrator was a repeat offender (U.S. Department of State 2023, 2024). Although the authorities in BiH have taken numerous measures to combat violence against women and domestic violence, as highlighted in the report of the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO), there is still a lack of effective action, support and legal solutions for women who have experienced sexual violence, rape, female genital mutilation, forced marriage, forced abortion, forced sterilisation and stalking (COE 2022).

On 28 July 2022, the UN General Assembly adopted a resolution stating that everyone has the right to live in a clean, healthy and environmentally sustainable environment. While this resolution does not yet impose binding obligations on states, it is a first step towards the creation of legislation with standards that can be directly and effectively enforced (UNDP 2023). Polluted air is a huge problem in BiH, especially in Sarajevo and Banja Luka. According to World Bank’s data, 3300 people in Bosnia and Herzegovina die annually because of it. Despite commitments under the Sofia Declaration on the Green Agenda for the Western Balkans from 2020, the authorities have made limited progress in reducing carbon emissions.

In May 2023, The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) published a report on the 2021 ad hoc visit, noting the failure of the BiH’s authorities to follow the CPT’s recommendations from the 2019 visit and to take action to stop inhuman treatment and punishment by police and gendarmerie officers. During the visit in 2021, the CPT found further violations of Article 3 of the European Convention on Human Rights. Police and gendarmerie officers (mainly from Sarajevo) were alleged to have committed acts of violence against detainees and prisoners such as: slapping, kicking, hitting them with batons, gun butts, handcuffing them to furniture for many hours, depriving them of food and drink, psychological abuse in order to force confessions, putting pressure on doctors in order for them to falsify medical records so that alleged injuries are either not disclosed or appear to have occurred under unclear circumstances (COE 2023b). In 2022, the Human Rights Ombudsman in BiH received 77 complaints from prisoners regarding inadequate health care, conditional release, conditions in prisons and detention centres (e.g. lack of daylight, ventilation, cleanliness, etc.). Unfortunately, the CPT has not noted that the Human Rights Ombudsman has initiated any proceedings on these cases at all (U.S. Department of State 2023).

An extremely serious problem with a huge impact on human rights is corruption. Experts say that BiH is downright devastated by corruption and the situation is getting worse. Bosnia and Herzegovina once again ranked very low in the Corruption Perceptions Index (CPI) published by Transparency International, i.e. ranked 108th7 in 2023 (see: Transparency International 2023a). It is noted that BiH is unable to suppress organised crime due to the deterioration of the rule of law and an enslaved judiciary. Ethnic divisions hamper the functioning of democratic institutions set up to fight corruption, among other things. We could mention, for example, the illegal election of the Attorney General in 2022, in which three of the four candidates resigned or were forced to resign. Numerous corruption scandals and the improper manner, in which the new prosecutor was selected, undermined the integrity of the prosecutor’s office and the public’s trust (U.S. Department of Treasury 2022). The same is true of other organised crime and corruption cases, including those involving senior officials, which have gone unaddressed by the judiciary for years (U.S. Department of State 2023). One recent example is the trial of those responsible for a crime in Bobar Bank worth more than BAM 8 million, which, after a lengthy trial, ended with the acquittal of one of the first defendants in the case (OSCE 2018: p. 32, 68). Other cases ended similarly.

We can take the opportunity to look at the 2022 general election, which was accompanied by a series of scandals related to vote theft, electoral committee trafficking and misuse of public funds. Changes to the electoral law did not solve this problem, but rather deepened the political crisis (U.S. Department of State 2023).

According to Srđan Blagovčanin, Chairman of the Board of Directors of Transparency International in Bosnia and Herzegovina, Transparency International’s report underlines “that corruption has led to serious consequences for global peace because it causes decline of democracy and strengthening of authoritarian leaders, while peace and stability become endangered in countries with a lower index. These tendencies have been present in BiH for years and, as stated in the TI report, an additional reason for concern is the leader of Republika Srpska and his recent mention of the Criminal Dafamation Law which could be used to silence independent critics” (Transparency International 2023b).

Conclusions

Some authors argue that BiH is the “bastard child” of Dayton and that it is impossible to move forward without a revision of the peace agreement (Wilczak 2005). The Serbian reaction to the UN resolution establishing the International Day of Reflection and Commemoration of the 1995 Genocide in Srebrenica seems to confirm that there are still tensions and unresolved issues from the war between the people. The International Criminal Tribunal for the former Yugoslavia, established after the war, is viewed positively and considered as a key step towards justice. The criticism concerns the fact that the vast majority of the accused are Serbs, as well as the cost of the proceedings, the procedure itself and the length of the proceedings.

It should be noted that over the years, BiH has done a tremendous amount of work for the respect of human rights – by joining international human rights organisations (such as the UN or the Council of Europe), ratifying numerous international human rights documents, establishing national human rights standards, national human rights institutions and implementation mechanisms. However, contemporary Bosnia and Herzegovina is plagued by serious problems that have a huge impact on the respect for human rights in the country. These problems include: ethnic and religious disputes that have been unresolved for years, organised crime, high level of corruption, political and economic instability, serious problems in the judiciary, and the low effectiveness of implementation mechanisms. This means that perpetrators of human rights violations often go unpunished, and there is a growing tendency among some group even glorify former war criminals.

Maria Ochwat – PhD, independent researcher, until March 2025 she was employed at the University of Szczecin. Her research interests are related to human rights. Two main publications: Amnesty International. Monografia ruchu społecznego (Toruń, 2013), Myanmar media: Legacy and challenges, “The Age of Human Rights Journal”, no. 14 (2020).

Maria Ochwat – doktor, obecnie niezależna badaczka, do marca 2025 roku pracowała na Uniwersytecie Szczecińskim. Zainteresowania badawcze dotyczą tematyki praw człowieka. Najważniejsze publikacje: Amnesty International. Monografia ruchu społecznego (Toruń, 2013), Myanmar media: Legacy and challenges, “The Age of Human Rights Journal”, no. 14 (2020).

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1 In 1998 by Resolution 1166, 30 November 2000 by Resolution 1329, 17 May 2002 by Resolution 1411, 14 August 2002 by Resolution 1431, 19 May 2003 by Resolution 1481, 20 April 2005 by Resolution 1597, 28 February 2006 by Resolution 1660, 29 September 2008 by Resolution 1837, 7 July 2009 by Resolution 1877.

2 As amended several times, the last time on 10 February 2015.

3 Law on the Human Rights Ombudsman of Bosnia and Herzegovina of 12 December 2000, published in “Official Gazette of BiH“ no. 32/00, “Official Gazette of the FBiH“ no. 54/00, and “Official Gazette of the Republika Srpska“ no. 45/00. This law has been adopted by Parliamentary Assembly of BiH and published in “Official Gazette of BiH” no. 19/02.

4 Both rankings also included 180 countries.

LGBTQI+ minorities were prevented from organising peaceful assemblies.

6 Especially “those responsible for the approximately 8,000 people killed in the Srebrenica genocide and for approximately 7,600 other individuals who remained missing and presumed killed”. In addition, “authorities also failed to prosecute most of the more than 20,000 instances of sexual violence alleged to have occurred during the war” (U.S. Department of State 2023: p. 3).

Out of 180 countries surveyed.

Received: 20.11.2024. Accepted: 23.05.2025.

Przegląd Europejski – European Studies Quarterly, ISSN: 1641-2478

vol. 2025, no. 1

Copyright © by Laura Koba, 2025

Creative Commons Attribution 4.0 (CC BY 4.0)

http://creativecommons.org/licenses/by/4.0/

DOI: https://doi.org/10.31338/1641-2478pe.1.25.6

Anti-discrimination policy in Bosnia and Herzegovina

Laura Koba, Jagiellonian University (Cracow, Poland)

E-mail: laura.koba@uj.edu.pl

https://www.orcid.org/0000-0001-8571-3955

Abstract

Bosnia and Herzegovina (BiH) is a multinational state that has only been learning to coexist for thirty years, despite the strong separatist tendencies of the Republika Srpska. As a European country, it is also involved in various problems of the continent, especially in terms of contemporary crises related to the nationalist and populist activities, etc. The prohibition of discrimination contained in the Constitution of Bosnia and Herzegovina of 1995 and other legal documents poses a very difficult task for the state authorities in terms of developing policies aimed at protecting marginalised groups and those excluded from political, economic and social life. The aim of this article is to identify the problems related to the implementation of the above-mentioned tasks and the activities of the emerging civil society to combat discrimination and promote diversity in BiH. The basic question concerns the chances of implementation of the policy against discrimination by artificially created state. The search for answers is possible through the analysis of legal documents, the discussion of cases of violations, and the use of national and international studies and reports. Studies on areas of political, economic and social life other than those discussed here were also helpful.

Keywords: Bosnia and Herzegovina, Europe, human rights, discrimination, anti-discrimination law, anti-discrimination policies, equality/diversity

Polityka antydyskryminacyjna w Bośni i Hercegowinie

Streszczenie

Bośnia i Hercegowina (BiH) to państwo wielonarodowe, które od trzydziestu lat uczy się współ-istnieć, pomimo silnych tendencji separatystycznych Republiki Serbskiej. Jako państwo europejskie, jest również uwikłane w różne problemy kontynentu, zwłaszcza w aspekcie kryzysów związanych z działalnością nacjonalistyczną i populistyczną itd. Zakaz dyskryminacji zawarty w Konstytucji Bośni i Hercegowiny z 1995 roku i w innych dokumentach prawnych stawia przed władzami państwowymi bardzo trudne zadanie w zakresie opracowywania polityk mających na celu ochronę grup marginalizowanych i wykluczonych z życia politycznego, gospodarczego i społecznego. Celem niniejszego artykułu jest próba zidentyfikowania problemów związanych z realizacją powyższych zadań oraz działań rodzącego się społeczeństwa obywatelskiego na rzecz zwalczania dyskryminacji i promowania różnorodności w BiH. Podstawowe pytanie badawcze dotyczy szans zrealizowania polityki antydyskryminacyjnej przez państwo sztucznie stworzone. Szukanie odpowiedzi możliwe jest dzięki analizie dokumentów prawnych, omówieniu przypadków naruszeń oraz wykorzystaniu krajowych i międzynarodowych badań i raportów. Pomocnymi okazały się również opracowania dotyczące innych niż omawiany obszarów życia politycznego, gospodarczego, czy społecznego.

Słowa kluczowe: Bośnia i Hercegowina, Europa, prawa człowieka, dyskryminacja, prawo antydyskryminacyjne, polityka antydyskryminacyjna, równość/różnorodność

Bosnia and Herzegovina (BiH) “emerged less as an independent state than as a visible protectorate” (Blitz 2015: p. 50) under the General Framework Agreement for Peace in Bosnia and Herzegovina (well-known as Dayton Agreement) signed in Paris on 14 December 1995. On the basis of Annex 4, the parties implemented the constitution of the new state. The legal and systemic solutions it established were intended to prevent future ethnic conflicts and ensure the participation of the three most numerous nations (Bosniaks, Croats and Serbs) in power. The federal state created at that time had a complicated constitutional order, which over time became the cause of an inefficient central government with extensive mechanisms for representing the above-mentioned nations/ethnic groups (consociational democracy). This led to an unproductive government in which every important issue remained deadlocked because the ruling tripartite states (Bosnia, Herzegovina, Republika Srpska) had conflicting priorities based on ethnic politics rather than common ideals (Yordán 2003: p. 59–74). According to Article V of the Constitution, the Presidency consists of three members: two persons elected from the Federation of Bosnia and Herzegovina (representing Bosniaks and Croats) and one Serb from the Republika Srpska (they are replaced every eight months). This is a discriminatory element against members of other ethnic groups and has been the subject of a complaint to the European Court of Human Rights in Strasbourg (cases Sejdić and Finci v. Bosnia and Herzegovina, as well as Slaven Kovačević v. Bosnia and Herzegovina – see below).

The imposed system of governance in BiH eventually became a symbol of fictitious stability or stagnation, which for a long time blocked changes towards a democratic rule of law. In the long run, this led to deep political polarisation and disagreements between the main parties of the ruling coalition, which resulted in a standstill in the work of democratic institutions and reforms on the way to EU accession negotiations. It was not until 2016 that the EU decided to start such negotiations. In 2016, the European Commission (EC) identified 14 key areas that the candidate country needed to reform in order to start negotiations, including the functioning of democratic institutions, the rule of law, fundamental rights, human rights, including problem of discrimination, and administrative reform. According to the Bosnia and Herzegovina 2022 Report accompanying the Communication on EU Enlargement Policy, “political parties based in the Republika Srpska entity blocked legislative and executive institutions at state level and adopted initiatives to unilaterally take over state competences at entity level, in breach of the constitutional and legal order” (European Commission 2022: p. 3). Moreover, the President of Republika Srpska, Milorad Dodik, is still trying to secede from BiH in 2024. But do almost thirty years of coexistence not create opportunities for the survival of this multinational state, unique in the world? Isn’t forced diversity the basis for building peaceful coexistence, even if it is sometimes imposed by international bodies? Doesn’t this in turn force state and local authorities to adopt effective anti-discrimination policies?

The aim of this article is to provide answers to the above-mentioned questions by focusing on:

firstly, the analysis of the legal documents that form the basis for the functioning of public authorities and citizens;

secondly, the analysis of the actions of the authorities and the effectiveness of the decisions they take;

thirdly, the analysis of the participation of citizens in the governance of their own state.

The research used the reports,1 which were helpful in checking the adaptation of the law to the studied reality, and academic literature, which enabled the understanding the studied facts. Due to the form of the article, it was limited to presenting basic facts about the history of anti-discrimination legislation, the functioning of the institutions established to monitor and combat the phenomenon of discrimination, and the attitudes of citizens towards the discussed problem. Attempts were also made to highlight the slow process of building civil society, as well as the threats resulting from the developing populism within the state, which is characteristic of Europe as a whole and is hampering this process.2 While this article does not cover every aspect of the issue, it is focused on the key problems related to anti-discrimination policy in BiH, as identified in available documents and studies.

Anti-discrimination law

In Bosnia and Herzegovina, human rights and fundamental freedoms are the basis of the constitutional system, and numerous international human rights conventions “represent not only international obligations but also a pillar of the country’s constitution” (COE 2022: p. 4). On the basis of international human rights law, which is directly enshrined in the Constitution, citizens can appeal directly to national and international institutions (e.g. the European Court of Human Rights in Strasbourg since 2002 or the committees of the UN treaty conventions in Geneva). These obligations are based primarily on the fundamental principles of human rights – freedom and equality. The principle of liberty allows for self-determination and personal security against state action. The principle of equality is a general principle that is relevant to the entire catalogue of constitutional rights and a public subjective right to equal treatment.

The principle of non-discrimination is primarily a derivative of the principle of equality, understood as: the right to equal treatment by public authorities at the level of their application (equality before the law), legislation (equality in law) and the prohibition of discrimination in political, social or economic life on any grounds. Equality refers primarily to the equality of women, i.e. equal rights with men, because discrimination against women is still one of the most important problems of social life in BiH. In the psychological sense, efforts are being made to equalise opportunities for women in various areas of social and political life through so-called positive discrimination (maintaining temporary or permanent solutions and legal measures aimed at equalising opportunities for people and groups discriminated against for various reasons, in this case gender), the purpose of which is to internally strengthen the sense of one’s own value. The prohibition of discrimination is primarily directed at public authorities, requiring them to respect human dignity and prohibiting any unjustified differentiation between people.

This is clearly stated in Article II par. 4 of the Constitution of Bosnia and Herzegovina: “The enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to the Constitution shall be ensured to all persons in BiH without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, membership of a national minority, property, birth or other status.” This is a standard non-discrimination provision found in various international human rights instruments.

Based on the Constitution of Bosnia and Herzegovina, the European Convention on Human Rights and the European Union’s anti-discrimination directives, the Law on Prohibition of Discrimination was adopted in 2009. Its aim is to create a legal framework for ensuring „equal rights and opportunities for all persons in BiH” and „define a system of protection from discrimination” (Law on Prohibition of Discrimination 2009: art. 1(1)). In accordance with the Constitution of BiH and international standards of human rights and fundamental freedoms, „this Law defines responsibilities and obligations of legislative, judicial, executive authorities in BiH”, as well as legal persons that „shall ensure protection, promotion and creation of conditions for equal treatment” (Law on Prohibition of Discrimination 2009: art. 1(2)).

Article 2 of the Law on Prohibition of Discrimination provides a definition of discrimination, and the following articles explain the different forms of discrimination – direct and indirect (Article 3), harassment, including sexual harassment, mobbing, segregation and activities leading to incitement to discriminate and helping others to discriminate or inciting them to discriminate (Article 4). In turn, Article 5 is important, because it presents exceptions to the principle of equal treatment. They are primarily intended to equalise opportunities for people belonging to marginalised groups.

Specific laws should also be mentioned, such as the Law on the Rights of National Minorities in Bosnia and Herzegovina, which entered into force on 6 May 2003. Its main purpose is to regulate the rights and obligations of members of national minorities in BiH and the obligations of the authorities of BiH in respecting, protecting, preserving and developing the ethnic, cultural, linguistic and religious identity of every member of a national minority in BiH who is a citizen of BiH. This law is important for strengthening anti-discrimination law and equality of citizens (Law on the Rights of National Minorities in Bosnia and Herzegovina 2003).

When discussing the anti-discrimination legislation in force in Bosnia and Herzegovina, it is necessary to emphasise the role of the European Convention on Human Rights, which, through Article 14 (prohibition of discrimination), opened the way for citizens of BiH to take their country to the European Court of Human Rights in Strasbourg on grounds of discrimination. However, while this article is limited by the need to present another violated right or freedom listed in this document (Article 14 is called the “Cinderella of human rights”, see: O’Connell 2009), the ratification of Protocol 12 does not create any restrictions, especially in the field of substantive law It is worth noting that BiH was one of the first Council of Europe states to ratify this protocol in 2005.

Institutions

When listing the institutions that, by virtue of their tasks and competences, should deal with combating all forms of discrimination, the role and importance of the Institute of the Human Rights Ombudsman of Bosnia and Herzegovina, the main national institution dealing with the protection of human rights and fundamental freedoms and thus, with combating discrimination, should be highlighted first.

The Human Rights Ombudsman of Bosnia and Herzegovina

The foundations for the work and functioning of the Ombudsman of Bosnia and Herzegovina are laid down in Annexes IV and VI of the General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement), concluded on 14 December 1995. On the basis of these documents, this institution started its work in 1996. The first Law on the Human Rights Ombudsman of Bosnia and Herzegovina was adopted in 2000, amended in 2002 and further amended in 2004 and 2006. The Law defines the powers and competences of the Human Rights Ombudsman. The rules of procedure for monitoring “the work of bodies and institutions according to the allegations contained in a complaint and ex officio, including other important issues related to the functioning of this national human rights mechanism for protection of fundamental human rights and freedoms” (Ombudsmen of BiH WWW).

One of the most important areas of activity of the Ombudsman is the prevention and elimination of all forms of direct and indirect discrimination. The Human Rights Ombudsman of Bosnia and Herzegovina has also played an active role in implementing the law, providing assistance to victims, initiating investigations and making recommendations. However, so far the Ombudsman has been rather passive in solving systemic problems leading to discrimination and has only paid attention to cases that are subject to court proceedings (Huszka 2017: p. 243).

It is thanks to the activities of the ombudsmen that we have important information about various forms of discrimination and the frequency of their occurrence (Priručnik… 2016).

Ministry of Human Rights and Refugees Bosnia and Herzegovina

The Ministry of Human Rights and Refugees has been established within the Government of Bosnia and Herzegovina. According to Article 12 of the Law on Ministries and Other Administrative Bodies of Bosnia and Herzegovina, its competences include:

monitoring and implementing international conventions and other documents in the field of human rights and fundamental freedoms;

coordinating and preparing reports on the implementation of obligations under international conventions and international documents, which are to be submitted to the competent local authorities and institutions and international institutions and organisations;

cooperating with various institutions, religious communities, associations; creating an immigration and asylum policy, etc. (Ministarstvo… WWW).

According to Article 8 of the 2009 Law on the Prohibition of Discrimination, the Ministry was obliged to develop a methodology for collecting data on discrimination after the adoption of the law, but this obligation was not fulfilled, nor were the annual reports of the aforementioned Ministry, as required by the law (Huszka 2017: p. 243). The first report was submitted to the Parliamentary Assembly of Bosnia and Herzegovina only in 2016. The next report covered the period 2016–2020. It took into account the problems arising from the impossibility of collecting data due to the lack of data from institutions that did not provide it. Therefore, the data presented are not complete. Moreover, none of the institutions provided information on how the adopted laws are implemented, how many internal procedures for protection from discrimination have been initiated and whether registers of cases/persons of discrimination are kept (see: Izvještaj o pojavama diskriminacije u Bosni i Hercegovini 2016–2020).

These examples show that the problem of discrimination and its prevention is still in its infancy in the country and also requires greater efficiency of the Ministry in its relations with various institutions.

The courts

With the adoption of the Law on Prohibition of Discrimination in 2009, a slow reform of the judiciary also began, although three years after the Act came into force, court practice was very poor: by 2012 (according to statistics kept by the organisation Vasa prava), only three cases were pending and five cases were dismissed (Hanušić 2013).

However, in 2018–2019 there were already 352 discrimination cases pending before the courts (Izvještaj... 2016–2020: p. 6).

Anti-discrimination was included in the dialogue on judicial reforms in 2011. First of all, the procedures for judicial proceedings in cases of discrimination were adopted, in which the person filing a complaint in the Municipal Court is guaranteed that the burden of proof is on the perpetrator (defendant). An official defence lawyer and the possibility of free legal aid became increasingly important. However, practice shows that victims are not aware of the protection mechanisms in discrimination cases due to their ignorance. The legal education of society is one of the basic problems of the state. The first and most important step in protection against discrimination is knowledge of the law and the use of rights and protection mechanisms. Effective protection is only possible if discrimination is reported and proceedings are initiated before institutions for the protection against discrimination. This is where organisations and associations play a very important role (Čaušević 2019: p. 674–680).

Anti-discrimination policy

Discrimination is an extremely negative phenomenon both from a social point of view, as it leads to a feeling of inequality between people, and from a legal point of view, as it is prohibited by the basic legal acts in force in BiH. The prohibition of discrimination contained in the Constitution of Bosnia and Herzegovina of 1995 (Article I par.7 concerning prohibition of discrimination and deprivation of citizenship, Article II par. 4 with a list of prohibited grounds for discrimination) poses a very difficult task for the state authorities to develop policies that protect marginalised and excluded groups from political, economic and social life. This is all the more difficult because the complex state structure created by international bodies in the Dayton Agreement of 1995 allows for discrimination of citizens (and not only) by elected political authorities, state institutions, but also by economic entities. This phenomenon has long been reinforced by the segregated education system, which has not yet been truly reformed to build a modern, multicultural society. Despite the existence of state institutions (the Human Rights Commissioner, the Ministry of Human Rights and Refugees, courts) aimed at combating discrimination in various areas of life of citizens of the Federation, discrimination is still present in BiH’s society. Corrupt elites, deteriorating economic conditions leading to increasing un-employment and lack of social security are the reasons why young people leave the country in search of a better future abroad. The so-called grassroots activity is a harbinger of the beginning of change. It manifests itself in the actions of individuals, social movements (e.g. Bosnian Spring), emerging non-governmental organisations or in complaints about discrimination, including to the European Court of Human Rights in Strasbourg.

The anti-discrimination policy developed by the authorities is a set of processes and procedures implemented by the state to maximise equality and integration in society and to promote equal opportunities. The main task of the state has been to define these concepts in order to determine what is acceptable and unacceptable behaviour.

BiH faces many challenges related to discrimination against marginalised and vulnerable groups, such as Roma, older persons, persons with disabilities, returnees, children, persons deprived of their liberty, women and men victims of wartime sexual violence, women from rural areas and lesbian, gay, bisexual, transgender and intersex (LGBTI) persons.

According to the report of the Ministry of Human Rights and Refugees (MHRR) about the cases of discrimination in BiH, discrimination is present in almost all areas of life (Izvještaj... 2016–2020).

The Law on Prohibition of Discrimination specifies the areas of special protection in Bosnia and Herzegovina (Article 6). These are:

Employment, work and working conditions, including access to work and self-employment, remuneration, dismissals and promotions;

Education, science and sports (access to education should not depend on the immigration status of children or their parents);

Social protection, including social security and social assistance (allowances for youth, housing allowance, etc.) and the treatment of beneficiaries of social protection;

Health protection, including access to care and treatment for patients;

Trainings, including initial and continuous professional training, all types and levels of vocational education, professional development, additional qualification, requalification, and gaining practical work experience;

Justice and administration, including the activities of police and other law enforcement officials, border control officials, military and prison personnel (all persons should be equal before courts and tribunals);

Access to housing, including housing conditions and termination of a lease contracts;

Public information and the media;

Membership of professional organisations, including participation in employers’ or workers’ unions or any other organisations whose members are engaged in a particular profession, access to benefits provided by such organisations;

Goods and services designated for public use and public places, including, for example, when buying goods in a shop, applying for a loan from a bank, and entering disco, cafe or restaurant;

Participation in cultural and artistic activities. (Law on Prohibition of Discrimination 2009: art 6).

Equal participation of all citizens in family life is also guaranted by the law: „full equality of rights and responsibilities in relation to marital community, during marital community and divorce, including rights and responsibilities in raising children”, as well as guarantee of the rights of the child, including the protection measures required by his or her status as a minor, by his or her family, society and the state (Law on Prohibition of Discrimination 2009: p. 6).

In addition to those listed in the law, measures are taken to equalise opportunities for LGBTI people (see more: LGBTI Equal Rights Association… WWW) and to protect victims of human trafficking. With regard to both groups, the state is not taking the appropriate measures to which it has committed itself in international documents.

The legal provisions in force in BiH do not always reflect the way things are done in practice. With regard to both groups (LGBTI and victims of trafficking), the state is not taking the appropriate measures to which it has committed itself in international documents. The analysis of the situation of LGBTI people in Bosnia and Herzegovina became the basis for the ECRI (European Commission against Racism and Intolerance) action strategy aimed at equal opportunities, prohibition of further discrimination, equal rights in all spheres of life and promotion of diversity (COE 2022).

According to the 2024 Trafficking in Persons Report, “The Government of Bosnia and Herzegovina (BiH) does not fully meet the minimum standards for the elimination of trafficking in persons, but is making significant efforts to do so” (U.S. Department of State 2024). On the other hand, the report highlighted the inadequate approach to trafficking victims from the Romani community – “some authorities did not investigate cases of potential forced child begging and forced labor involving members of the Romani community but rather justified them as traditional cultural practices and customs and returned children to their families, even when their parents were involved in their exploitation” (U.S. Department of State 2024).

Discrimination and intolerance against Roma, internally displaced persons and refugees returning to their places of residence is a serious problem. They face numerous physical attacks and hate speech. “Of 19 ongoing trials in September, the Organization for Security and Cooperation (OSCE) recorded zero convictions” (Human Rights Watch 2025).

Grassroots activity

The people of BiH live a double life – one imposed from above by the international community and the decision of the politicians who run the state, and the other, a bottom-up life developed every day in their everyday environment.

Lord Dahrendorf wrote in his book Reflections on Revolution in Europe: “The formal process of constitutional reform takes at least six months; the general feeling that the economic reform is improving may not appear until six years later; the third condition of the path to freedom is to provide the social conditions that will transform the constitution and economy from institutions that operate only in favorable conditions to those that operate in all conditions and are resistant to both external and internal storms – and sixty years may not be enough to create such conditions. [...] Civil society is the key here. It bridges the time gap and the scale of political and economic reform into a single whole. It is in this area that both reforms must be anchored if they are to survive” (Dahrendorf 1991: p. 86–87).

The future of the state depends on civic awareness. Building civic awareness is very difficult and time-consuming, and in the conditions of Bosnia and Herzegovina, where we are dealing with strong nationalism and centrifugal forces (Milorad Dodik in the Republika Srpska), it may seem impossible.

The fundamental dispute over the political system is blocking reform, with neither side willing to make concessions. In addition, they question the consensus reached in Dayton Agreement, even though it is beneficial to them, because citizens have only a limited ability to replace rulers through elections (Szpala 2022).

Despite the difficulties of collective civic action, social mobilisations in the country have increased in size, number and intensity in recent years. One example is the so-called Bosnian Spring. This was an organised social movement triggered by the events of February 2014, when police brutally attacked a demonstration of unemployed workers from privatised factories in the former industrial centre of Tuzla in BiH. The police action sparked solidarity rallies across the country. Workers from several privatised and bankrupt factories joined forces to demand action on jobs, unpaid wages and pensions. Students and political activists joined the workers. New forms of grassroots solidarity emerged in the wake of the protests, but Bosnian citizens still appear to be affected by deteriorating economic conditions, corrupt elites, rising unemployment and non-existent social protection (Milan 2015).

In recent years, protests against all forms of violence against various minority groups have intensified. Violence against women, especially women with disabilities, is a particularly serious social problem. In 2022−2023, twenty women were killed in BiH. On 14 August 2023, demonstrations took place in several cities due to the slowness of the courts and the weak response of the police and state institutions to domestic violence (Jagiełło-Szostak 2023).

Another type of grass roots activity are non-governmental organisations (NGOs), called also civil society organisations (CSOs). They play an important role in providing education, psychological support, legal and material assistance and building social awareness. They operate not for financial gain, but to achieve the goal of doing good to others. They are partners of international organisations in implementing the recommendations on the protection of human rights contained in international documents.

For example, the European Economic and Social Committee’s opinion EU–Bosnia and Herzegovina relations: the role of civil society contains the following recommendations for civil society organisations in BiH:

„To stimulate bottom-up approaches and self organisation of civil society, contributing to strengthening the societal ownership of CSOs.

To raise awareness on the role of civil society in the political process.

To facilitate networking and partnership building, i.e. exchange of information, know how and experience.

To increase knowledge and understanding of EU integration, EU policies, and European Institutions.

To increase education and training within CSOs.

To stimulate interethnic and interreligious dialogue and increase the level of cooperation, networking and twinnings among CSOs.” (European Economic and Social Committee 2009: point 1.4).

These CSOs include both global organisations, such as Amnesty International, and local organisations. One of such international NGOs (CSOs) is international organisation UN Women, which has been present in BiH since 2008, when a project office was established. It was upgraded to a country office with a resident in 2013. The organisation’s “work for gender equality and women’s empowerment focuses on three main areas:

Gender-responsive governance and leadership;

Ending violence against women;

Women’s economic empowerment” (UN Women WWW).

UN Women supports Bosnia and Herzegovina in adopting “global standards to achieve gender equality, and works with governments and civil society to design laws, policies, programmes and services to implement these standards” (UN Women WWW).

Another international organisation focused on young people is Humanity in Action Bosnia and Herzegovina. It is an important part of the international educational community of students and young professionals in Europe and the United States. The members of this organisation describe themselves as follows: “We are committed to liberal democracy, pluralism, social justice and human rights, particularly in the transatlantic context. We promote these values through education and forms of civic engagement shaped by the specific historical and cultural contexts of Bosnia & Herzegovina and our partner organizations in Denmark, Germany, the Netherlands, Poland and the United States” (Humanity in Action Bosnia and Herzegovina WWW).

Applying to the European Court of Human Rights (ECHR)

An application is one of the means by which citizens who have exhausted their domestic remedies can have their rights upheld by an impartial arbiter. Most of the cases won at the ECtHR concerned discrimination against civil and political rights.

Sejdić and Finci v. Bosnia Herzegovina, 22.12.2009

A precedent-setting case was the joint application of Dervo Sejdić and Jakob Finci, citizens of BiH. Born in 1956 and 1943 respectively, they live in Sarajevo. The first is of Roma origin and the second is Jewish. Both are prominent public figures. In its preamble, the Bosnian constitution distinguishes between two categories of citizens: the so-called “constitutional peoples” (Bosniaks, Croats and Serbs) and “others” (Jews, Roma and other national minorities, as well as those who do not identify with any ethnic group). The House of Peoples of the Parliamentary Assembly (Second Chamber) and the Presidency are composed exclusively of persons belonging to the three constituent peoples. The two gentlemen (Sejdić and Finci) were not allowed to stand for election to the House of Peoples of the Parliamentary Assembly. The judgment of the European Court of Human Rights found that the constitutional arrangements introduced by the Dayton Agreement, according to which the right to stand for election to the tripartite Presidency and the Second Chamber of the National Parliament is granted only to persons who declare themselves to be Bosniak, Croat or Serb, is discriminatory. There was a violation of Article 14 of the European Convention on Human Rights (prohibition of discrimination) together with Article 1 of Protocol No. 1 (right to free elections) and Article 1 of Protocol No. 12 (general prohibition of discrimination) to the Convention (European Court of Human Rights 2025: p. 2).

Baralija v. Bosnia and Herzegovina, 29.10.2019

In 2019, the ECtHR ruled in favour of Irma Baralija, a local politician from Mostar, who sued the state for preventing her from voting or standing in elections in the city of Mostar, where local elections had not been held since 2008. The Court found that a legal loophole had been created by the authorities’ failure to implement the 2010 Constitutional Court ruling on the arrangements for local elections in Mostar. As a result, municipal elections were held in Mostar in December 2020. Civil society and international observers described the process as generally free and fair. The Mostar City Council held its first meeting on 5 February and elected a new mayor on 15 February. There was a violation of Article 10 of the Charter of Fundamental Rights of the European Union. 1 of Protocol 12 (U.S. Department of State 2023).

Pilav v. Bosnia and Herzegovina, 09.06.2016

The case concerned a complaint by a politician residing in Republika Srpska (one of the two territorial entities of BiH), who identified himself as Bosniak, that it was legally impossible for him to run for the Presidency of the country. There was a violation of Article 1 of Protocol 12 (European Court of Human Rights 2025: p. 5).

Zornić v. Bosnia and Herzegovina, 15.07.2014

“Ms Zornić’s ineligibility to stand for election to the House of Peoples and the Presidency of Bosnia and Herzegovina because she refused to declare affiliation to any particular ethnic group but declared herself as a citizen of Bosnia and Herzegovina and, in accordance with the Constitution, only those who declared affiliation with the so-called ‘constituent peoples’ (namely, Bosniacs, Croats and Serbs) were entitled to stand for election” (European Court of Human Rights 2025: p. 5). The Court held that there had been a violation of Article 14 (prohibition of discrimination) in conjunction with Article 3 of Protocol No. 1 (right to free elections) in respect of Ms Zornić’s inability to stand for election to the House of Peoples of Bosnia and Herzegovina.

There was also a violation of Article 1 of Protocol No. 12 (general prohibition of discrimination) in relation to Ms Zornić’s ineligibility to stand for election to both the House of Peoples and the Presidency of BiH (European Court of Human Rights 2025: p. 5).

Slaven Kovačević v. Bosnia and Herzegovina, 29.08.2023

The applicant, Slaven Kovačević, although a citizen of BiH, does not belong to any particular ethnic group. He argued that the candidates who best represented his views because of their ethnic origin did not meet the territorial and ethnic requirements (only Bosniaks could stand in Bosnia, Croats in Herzegovina and Serbs in Republika Srpska). The ECtHR found that the combination of these requirements (territorial and ethnic) constituted discriminatory treatment “in the context of the right to participate in elections to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina, it considered that the same was true in respect of the right to vote in elections to the Presidency of Bosnia and Herzegovina” (European Court of Human Rights 2023).

Conclusions

The situation in BiH is not simple. It is a multinational state with areas of strong segregation and inter-ethnic tensions that determine the political reality and prevent the normal development of the state. Since January 2024, there has been a dispute over the constitutional tribunal initiated by Milorad Dodik, the leader of the Bosnian Serbs, who seeks separation from BiH, but also from European control (Wankiewicz 2024).

The above problems are aggravated by the unstable political (development of populisms), economic and social (migrations) situation in Europe, which strengthens nationalist sentiments. All this creates an atmosphere that is not conducive to building equality and strengthening diversity in the state, especially since the accession negotiations to the European Union, which began in March 2024, made it independent from the implementation of the judgments of the European Court of Human Rights on discrimination against Jews, Roma and others. “BiH authorities made at best slow progress in tackling these and other rights challenges, including femicide and war crimes accountability” (Human Rights Watch 2025). And while global issues – digital technology, artificial intelligence, climate crises, pandemics, conflicts – are added to domestic problems, they can be factors that mobilise the inhabitants of BiH to act not only for their own benefit, but also for the benefit of the global village. The citizens of this country are also interested in joining the European Union. The emerging civil society in BiH has a long tradition of peaceful coexistence among different ethnic groups and a will to change towards a democratic rule of law. However, these changes depend on the proper functioning of public institutions, education without ethnic segregation and the activity of citizens themselves. An important element that helps in this analysis is to draw attention to the social change that is taking place, leading to greater awareness of one’s human rights and action to make use of them. Positive change is slow but visible. Unfortunately, changes in social attitudes take the longest. BiH has only been transforming its social, economic and political life for thirty years. But there is also a generational change taking place and, thanks to new technologies, young people are perceiving the reality around them differently.

Laura Koba – historian, lawyer, PhD in political science. She works at the Institute of Public Affairs, Faculty of Management and Social Communication at the Jagiellonian University. She is a member of the Board of the La Strada Foundation against Human Trafficking and Slavery. For over thirty-five years she has been involved in human rights (in theory and practice) in Poland, for several years she also taught in Lithuania. She is preparing a publication entitled Human Rights in the Global Governance System.

Laura Koba – historyk, prawnik, dr nauk humanistycznych w zakresie nauk o polityce. Pracuje w Instytucie Spraw Publicznych, na Wydziale Zarządzania i Komunikacji Społecznej Uniwersytetu Jagiellońskiego. Jest w Zarządzie La Strada Fundacja Przeciwko Handlowi Ludźmi i Niewolnictwu. Od ponad trzydziestu pięciu lat zajmuje się (w teorii i w praktyce) prawami człowieka w Polsce, przez kilka lat prowadziła również zajęcia na Litwie. Przygotowuje publikację pt. Prawa człowieka w systemie globalnego zarządzania.

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European Court of Human Rights (2023), Elections in Bosnia and Herzegovina are undemocratic because the main ethnic groups enjoy a privileged position, Press Release issued by the Registrar of the Court, ECHR 235 (2023), 29.08.2023.

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European Economic and Social Committee (2009), Opinion of the European Economic and Social Committee on ‘EU–Bosnia and Herzegovina relations: the role of civil society’ (Exploratory opinion), (2009/C 317/03), OJ C 317, 23.12.2009.

HANUŠIĆ Adrijana (2013), Judicial Protection from Discrimination in Bosnia and Herzegovina – Analysis of Legislative Solutions and Practice in Light of the First Cases in this Field, Sarajevo.

HUMAN RIGHTS WATCH (2024), Bosnia and Herzegovina Events of 2023, in: World Report 2024, https://www.hrw.org/world-report/2024/country-chapters/bosnia-and-herzegovina (29.12.2024).

Human Rights Watch (2025), Bosnia and Herzegovina Events of 2024, in: World Report 2025, https://www.hrw.org/world-report/2025/country-chapters/bosnia-and-herzegovina (09.02.2025).

Humanity in Action Bosnia and Herzegovina (WWW), About us, https://humanityinaction.org/bosnia-herzegovina-about/ (20.10.2024).

HUSZKA Beáta (2017), The EU’s Changing Conditionality on Anti-Discrimination in Bosnia and Herzegovina, in: Wolfgang Benedek, Matthias C. Kettemann, Reinhard Klaushofer, Karin Lukas, Manfred Nowak (eds), European Yearbook on Human Rights 2017, Wien – Gratz.

IZVJEŠTAJ o pojavama diskriminacije u Bosni i Hercegovini za period 2016–2020. godine, Ministarstvo za ljudska prava i izbjeglice, https://www.mhrr.gov.ba/PDF/LjudskaPrava/Izvjestaj%20o%20pojavama%20diskriminacije.pdf (31.05.2021).

JAGIEŁŁO-SZOSTAK Anna (2023), Bośnia i Hercegowina: protesty przeciw przemocy wobec kobiet, „Komentarze IEŚ”, no. 932 (180/2023).

KADRIBAŠIĆ Adnan (2013), Developing Equality Legislation in Divided Societies: The Case of Bosnia and Herzegovina, „The Equal Rights Review”, vol. Ten (2013). DOI: http://dx.doi.org/10.2139/ssrn.2259545

Law on Prohibition of Discrimination (2009), “Official Gazette of Bosnia and Herzegovina”, no. 59/09, 28.07.2009.

Law on the Rights of National Minorities in Bosnia and Herzegovina (2003), “Official

Gazette of Bosnia and Herzegovina”, no. 12/03, 12.04.2003.

LGBTI Equal Rights Association for Western Balkans and Turkey (WWW), Bosnia and Herzegovina, https://lgbti-era.org/countries/bosnia-and-herzegovina/ (20.10.2024).

Ministarstvo za ljudska prava i izbjeglice (WWW), https://www.mhrr.gov.ba/default.aspx?langTag=bs-BA&template_id=127&pageIndex=1 (20.10.2024).

O’CONNELL Rory (2009), Cinderella Comes to the Ball: Article 14 and the Right to Non-Discrimination in the ECHR, “Legal Studies”, vol. 29, no. 2.

OHR (2024), 66th Report of the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina to the Secretary-General of the UN, https://www.ohr.int/66th-report-of-the-high-representative-for-implementation-of-the-peace-agreement-on-bosnia-and-herzegovina-to-the-secretary-general-of-the-un-2/ (11.01.2024).

Ombudsmen of BiH (WWW), Relevant Legislation, https://ombudsmen.gov.ba/Default.aspx?id= 14&lang=EN (20.10.2024).

OMEROVIĆ Enis, Zilić Lejla (2020), Bosnia and Herzegovina, “East European Yearbook on Human Rights”, vol. 3 (1). DOI: 10.5553/EEYHR/258977642020003001007

Open Society Fund – Bosnia and Herzegovina (2012), Report on Public Perceptions and Experiences of Discrimination, Sarajevo.

Priručnik za postupanje ombudsmana za ljudska prava Bosne i Hercegovine u predmetima diskriminacije (2016), Institucija ombudsmena/ombudsmana za ljudska prava Bosne i Hercegovine, https://www.ombudsmen.gov.ba/documents/obmudsmen_doc2016101419280006bos.pdf (31.12.2016).

SZPALA Marta (2022), Bośnia i Hercegowina – gry separatyzmem Republiki Serbskiej, „Komentarze OSW”, https://www.osw.waw.pl/pl/publikacje/komentarze-osw/2022-02-09/bosnia-i-hercegowina- gry-separatyzmem-republiki-serbskiej (09.02.2022).

UN Women (WWW), Bosnia and Herzegovina, https://eca.unwomen.org/en/where-we-are/bosnia-and-herzegovina (20.10.2024).

U.S. DEPARTMENT OF STATE (2023), 2022 Country Reports on Human Rights Practices: Bosnia and Herzegovina, https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/bosnia- and-herzegovina/ (20.03.2023).

U.S. DEPARTMENT OF STATE (2024), Trafficking in Persons Report: Bosnia and Herzegovina, https://www.state.gov/reports/2024-trafficking-in-persons-report/bosnia-and-herzegovina/ (31.12.2024).

WANKIEWICZ Paulina (2024), Dispute over the justice system in Bosnia and Herzegovina, OSW, “Analyses”, https://www.osw.waw.pl/en/publikacje/analyses/2024-02-12/dispute-over-justice-system-bosnia-and-herzegovina (12.02.2024).

Yordán Carlos L. (2003), Society Building in Bosnia: A Critique of Post-Dayton Peacebuilding Efforts, “Journal of Diplomacy and International Relations”, vol. 4, issue 2.

1 The used research materials include general reports on combating all forms of discrimination, such as Bosnia and Herzegovina Events of 2023 in the World Report 2024 (also Bosnia and Herzegovina Events of 2024 in the World Report 2025) prepared by Human Rights Watch, as well as specific reports presenting the situation of people discriminated in various areas of social life, such as national and ethnic groups, sexual minorities, gender and worldview (for example, Trafficking in Persons Report: Bosnia and Herzegovina, see: U.S. Department of State 2024). According to research conducted in 2012 by the Open Society Fund – Bosnia and Herzegovina, „86% of the country‘s citizens believe that discrimination is a serious problem in society, with ethnicity and religion being perceived as the most common grounds for discrimination” (Kadribašić 2013: p. 59; Open Society Fund – Bosnia and Herzegovina 2012). Research documents also include reports resulting from participation in international organisations, such as the Commission staff working document Bosnia and Herzegovina 2022 Report, accompanying the 2022 Communication on EU Enlargement policy (European Commission 2022).

2 E.g. new laws in Republika Srpska criminalise defamation and restrict foreign funding for civil society (Human Rights Watch 2024).

Received: 20.11.2024. Accepted: 23.05.2025.

Przegląd Europejski – European Studies Quarterly, ISSN: 1641-2478

vol. 2025, no. 1

Copyright © by Piotr Toczyski, 2025

Creative Commons Attribution 4.0 (CC BY 4.0)

http://creativecommons.org/licenses/by/4.0/

DOI: https://doi.org/10.31338/1641-2478pe.1.25.7

The roots of contemporary European identity: Carolingian and Arthurian references in the postmedieval acquis mythologique

Piotr Toczyski, Maria Grzegorzewska University in Warsaw (Warsaw, Poland)E-mail: ptoczyski@aps.edu.pl

https://orcid.org/0000-0003-1218-5623

Abstract

This article’s research subject is Europeanisation analysed through the lens of Carolingian and Arthurian references in the postmedieval acquis mythologique. Focusing on the integration process, the author examines the prominence of Carolingian mythology and the absence of Arthurian imagery in European identity formation. Analysing the use of Carolingian and Arthurian references in the early days of the EU and during its expansion, the study explores the dichotomy between these two symbolic cultures.

The author verifies a hypothesis that political communication concerning the integration process and European identity formation is based on values and symbols which refer to Charlemagne, but cultural communication resonates with King Arthur, forming an intricate acquis mythologique communautaire. This study explores early post-war Carolingian references in Western Europe (1949–1952) and subsequent appropriations in Eastern Europe (2000–2009). Whether supportive or critical, these references permanently link the idea of European unity to Charlemagne, creating a discourse where even critics tacitly accept the validity of this connection. The absence of King Arthur in the EU integration discourse prompts a call for further exploration. The author suggests that Arthurian imagery could provide a unique analytical perspective and contribute to the further deep analysis of the evolving European identity.

Keywords: European identity, Carolingian mythology, Arthurian imagery, EU integration, acquis mythologique, Charlemagne, cultural communication, political communication

Geneza współczesnej tożsamości europejskiej: odniesienia karolińskie i arturiańskie w post-średniowiecznym acquis mythologique

Streszczenie

Przedmiotem analizy w niniejszym artykule jest poszukiwanie odniesień karolińskich i arturiańskich w post-średniowiecznym acquis mythologique. Skupiając się na procesie integracji, autor bada znaczenie mitologii karolińskiej i brak wyobrażeń arturiańskich w kształtowaniu się tożsamości europejskiej. Analizując sposób wykorzystania odniesień karolińskich i arturiańskich w początkach Unii Europejskiej oraz w okresie jej ekspansji, w badaniu zgłębiono dychotomię pomiędzy obiema kulturami symbolicznymi. Autor weryfikuje hipotezę, że komunikacja polityczna dotycząca procesu integracji europejskiej i budowania tożsamości europejskiej opiera się na wartościach i symbolice związanej z Karolem Wielkim. Natomiast komunikacja kulturowa rezonuje z królem Arturem, tworząc skomplikowany zasób acquis mythologique communautaire. W niniejszym badaniu przeanalizowano wczesne powojenne odniesienia do Karolingów w Europie Zachodniej (1949–1952) i późniejsze zawłaszczenia w Europie Wschodniej (2000–2009). Niezależnie od tego, czy odniesienia te są pozytywne, czy krytyczne, trwale łączą one ideę jedności europejskiej z Karolem Wielkim. Autor konstatuje, że wytworzył się dyskurs, w którym nawet krytycy milcząco akceptują ważność tej korelacji. Nieobecność króla Artura w dyskursie integracyjnym UE skłania do zainicjowania dalszych badań. Wyobrażenia arturiańskie mogą zapewnić wyjątkową perspektywę analityczną i stanowić wkład do dalszej pogłębionej analizy kształtowania się tożsamości europejskiej.

Słowa kluczowe: tożsamość europejska, mitologia karolińska, wyobrażenia arturiańskie, integracja europejska, acquis mythologique, Karol Wielki, komunikacja kulturowa, komunikacja polityczna

1. Introduction

The main aim of the article is to examine references to Carolingian and Arthurian mythology in the context of European integration. The article is focused on understanding why the myth of Charlemagne is present in the political discourse of the European Union (EU), while the myth of King Arthur is not. The references to Charlemagne, both positive and critical, permanently link the idea of European unity to this figure. The political and symbolic discourse of the EU is dominated by the figure of Charlemagne, who is presented as the forerunner of a united Europe. References to Charlemagne appear in various forms, such as building names, awards and political speeches. The EU’s official integration discourse lacks references to King Arthur, despite the fact that he is a culturally significant figure in Europe. The article suggests that Arthurian motifs can bring a unique perspective to the formation of European identity. I re-introduce the concept of acquis mythologique communautaire, which refers to the shared imaginations, myths and memories that precede official documents and legal norms (acquis communautaire and acquis historique communautaire). The article argues that both Carolingian and Arthurian myths are elements of this resource.

There exists a dichotomy between Charlemagne, who is presented as a symbol of unity through integration, and King Arthur, who is seen as a symbol of mission and conquest. This dichotomy helps to understand why one myth has gained popularity in the context of European integration and the other has not. The purpose of the article, its theoretical and methodological frameworks, and the content of the article all relate to the prominent presence of Carolingian mythology and the absence of Arthurian imagery in the European integration process. The nature of the stark opposition between history and myth is deeply problematic in postmedieval reception. This article is the intervention, which warrants the topic of medievalism in the context of European integration. It provides a useful overview of some of the ways, in which the legend of Charlemagne has been used in the discourse around the EU, not only on the pro-EU side but also on the anti-EU side, showing a common cultural reference point even for those with opposing beliefs. The publication focuses on international politics. The examples are carefully selected from critical moments in this discourse, in particular from the early days of what was to become the EU in the 1940s and 1950s and from the period of EU expansion in the first decade of the 21st century. Even if the article does not fully engage in a genuine dialogue with contemporary medievalism studies, it will be of interest not only to those who follow the cultural and political development of the EU, but also to those who study the contemporary reception of medievalism. Both are important current topics in their disciplines. Thus, the results of this work are appropriate for both the scholars focused on foreign affairs or studying modern politics and the studies in medievalism.

The voice asking for deeper and less superficial EU political communication has been heard for some time (Toczyski 2021). I will briefly discuss the purpose of this text: what I want to achieve and how I intend to do it. I build on the intellectual offer of French political scientist Fabrice Larat, Swedish sociologist Kristian Gerner and Italian historian of the Middle Ages Tommaso di Carpegna Falconieri. Fabrice Larat’s argument frames the discussion by linking the past to a then future-oriented political project, adding historical depth to European integration. Western Europe needed this deepening after World War II, in the time of creating supranational institutions, which aimed beyond the limits of the national institutions. His idea of extending the EU-related term acquis communautaire to acquis historique communautaire led me to its further extension as acquis mythologique communautaire.

This is also the place to introduce the works of Gerner, focused on the dichotomy between postmedieval King Arthur and Charlemagne as two European legendary characters, and Falconieri focused on contemporary Europeanisation and medievalism, on which later arguments rely. The current research question is: How might medievalism be deployed in EU politics? In such a context the Carolingian myth can be fruitfully analysed in comparison with the Arthurian myth. Their Western European medieval origin and knightly content surrounding the main character of the king suggest that they are two sides of the same imaginative phenomenon. Can both the Carolingian and Arthurian elements of symbolic culture co-exist within one imaginary resource – acquis mythologique communautaire – which through the shared framework of mythological references mobilises common identity? Problems of mythologies are visible in European and EU studies (Kølvraa 2016), usually not centering and not sufficiently elaborating the concepts such as acquis mythologique communautaire.

The use of Carolingian and Arthurian references in the post-war European integration process is an interesting and relevant topic. Particularly the use of Carolingian references in Eastern Europe (in relation to the extension of the European Union) has not received much attention in scholarly literature.

2. Acquis mythologique communautaire

Advocates of Western European political integration after World War II sought to mobilise pan-European support for their cause and reworked a series of traditional European narratives to do so. The scholar of European studies Richard McMahon mentions three conservative narratives of Christian Europe, in which he includes a traditional concept of Europe traced by twentieth-century historians like Henri Pirenne and Alfred Toynbee “from the medieval Rhineland core of Western Christendom,” which was followed by early European federalists’ appeal to “these common Rheinish roots and the symbolism of Charlemagne,” and by the “echoes of medieval Christendom in the geography of the early European Economic Community (EEC).” These narratives “have long competed with representations of a liberal modern West, infusing east-west civilisational discourse with ideological tension” (McMahon 2017: p. 315–316). According to Philippe Perchoc, among the co-existent “soft elements of the European narrative” are “pre-EU figures, the founding fathers and cold war symbolism and events.” (Perchoc 2017: p. 369).1

From the medieval(ism) studies perspective, the most intriguing element in the above list seems to be the Carolingian reference. And indeed, the figure of Charlemagne had more connections to the emerging supranational European political institutions through the physical elements such as statues and names of buildings. One such example is a Brussels building named the Charlemagne, used in 1967 as part of the Léopold quarter since 1958 pointed to house the European Communities and developed by private companies. Pre-EU historical heritage such as Charlemagne or European mythology has been merged with the pre-existing Belgian heritage, whereas the European Commission’s Charlemagne building is based on the figure of the Carolingian emperor that was in vogue in the 1950s (Larat 2006; Perchoc 2017). The post-war history of referring to Charlemagne as a symbol of united Europe is longer than the naming of European institutions building in Brussels.

Helpful in clarifying the research question and demarcating the scope of this study will be two notions formed by analogy to the EU law named acquis communautaire. Fabrice Larat explains references to Charlemagne in a similar manner to the heuristics of naming the building. Among the consequences of referring to Charles the Great, the deepening of the sense of cross-border pan-continental Western European community is the main reason. The instrumentalisation of Charlemagne, a historical figure, fulfils “function for a time” by “linking the past to a future-oriented political project” and giving “European integration the historical depth that Western Europe needed after the war, when it was a matter of creating supranational institutions to go beyond the limits of the national framework that had prevailed until then” (Larat 2006: p. 65). Instrumentalisation makes it possible to bring out the common denominator in national memories. It even shows the importance of such denominators for the future of Europe. But it does not lead to a shared sense of belonging. Collective identity cannot be decreed. Referring to a hypothetical patron figure, a titular and tutelary figure, is not the same as creating an awareness of a shared history, says Larat in his works (see: Larat 2005, 2006).

The above-mentioned proposal of the European Union’s historical foundations is expressed as the so-called acquis historique communautaire, consisting of excerpts of normative acts ruling European supranational polity. Accumulated Preambles of EU legal acts constitute and codify beliefs about the historical purpose of the EU. Moral commitment resulting from Europe’s past (historique) and the legal character (acquis communautaire) of the treaties are two factors of an acquis historique communautaire. The principles present no juridical value, but their moral aspect builds the atmosphere, in which the new EU countries must accept the acquis historique at the moment of joining the EU. The common identity of the EU results from acquis historique. Some discourses define Europe divisions as unnatural or even abnormal and emphasise moral and historical legitimacy of the quest for unity: the unity in the diversity results in “belief that all the attempts to restore the unity of Europe since Charlemagne have sought to recollect what, in fact, belongs together” (Larat 2005). The concept does not cover other than legal expressions of European integration, such as the artistic, journalistic or even political, which did not enter into the preambles.

On this ground, another concept may be built. The debate about cultural Europeanisation may be retold in the words of Denis de Rougemont, who wrote that Europe would be an energy, which we denote by E, and which is equal to the product of its mass (surface area, raw materials, population), denoted by m, and its culture, whose effects and consequences grow at a geometric rate, which will be denoted by c squared. The famous equation: E = mc2 would be read as follows: Europe = the peninsula of Asia multiplied by the intensity of culture. Departing from de Rougemont, we may assume that supranational legal and institutional response is an epiphenomenon of the European identity, which was built more on cultural grounds than on political negotiation of normative acts. Following this we may go even one step further from Larat’s idea and introduce the concept of acquis mythologique communautaire. It would refer to common imaginations, myths and memories preceding the acquis historique communautaire. Analogously to pan-European processes of law-making (the acquis communautaire) and history-writing (resulting in acquis historique communautaire) the acquis mythologique communautaire has been formed. Is it a must to adhere to the latter? We know that during Poland’s transition from communism in 1989 to EU accession in 2004, “myths such as Arthurianism re-emerged to become a mode of debating about who won the moral argument” (Toczyski 2018).

As there is no clear space for Charlemagne nor other mytho-mnemonic persons in acquis historique communautaire, but we know that such figures exist in semi-official discourses related to the European Union, I suggest introducing one more category: acquis mythologique communautaire. It would have no legal counterpart, but would be expressed in some imaginative, artistic, journalistic and other public expressions of European phenomena such as medievalism. It was observable in mythologies such as King Arthur’s legend in the Central European political breakthrough of 1989. Can both the Carolingian and Arthurian elements of symbolic culture co-exist within one imaginary resource – acquis mythologique communautaire – which through the shared framework of mythological references mobilises common identity? It seems that they do co-exist as two sides of the same coin. Political communication refers to Charlemagne, whereas cultural communication refers to King Arthur. They both belong to the acquis mythologique communautaire category.

In the current study the space of acquis mythologique is explored and analysed, situated closer to political culture than legal documents. It also includes journalistic and artistic communication.

3. Carolingian–Arthurian dichotomy

One of the paths to such a conceptual category led me through the works of Kristian Gerner, a Swedish professor of Eastern European history and culture, who sees parallels between early medieval Carolingian Europe and the twentieth-century European integration project. Gerner suggests that the significant commencement of the medieval unifying endeavour occurred with Charlemagne’s coronation as Augustus Imperator in Rome on Christmas Day in the year 800, evolving into a different phase marked by the first crusade in 1095–1096. Similarly, the substantial initiation of the modern unifying project is attributed to the Treaty of Rome in 1957, with its transformative shift paralleling the fall of socialist regimes in Central Europe in 1989. The 8th-century Frankland of Pippin the Small served as the starting point for Charlemagne’s project, while the late 1940s and early 1950s of Monnet’s and Schuman’s France formed the backdrop for the EU project. Both projects originated in the Rhine valley, expanding south and north before turning east. Territories like Bohemia, parts of future Hungary, Saxony, and present-day Slovenia were part of Charlemagne’s empire and, after a twelve-hundred-year interval, re-emerged in the EU enlargement process post-1989. In contrast, contemporary Poland and the Baltic states represent new additions, despite their historical involvement in the expansionism of the Holy Roman Empire succeeding the Carolingian Empire. The British Isles and Scandinavia, outside the medieval empire, have remained relatively detached within the EU. He also quotes an early 1998 edition of The Economist, where this type of reference to such structural similarity between the Carolingian empire and the EU was made.

Gerner’s original observation was that “the medieval project of European unification and expansion can be associated with the mythological figures of Charlemagne and King Arthur” (Gerner 1999: p. 43). Among the medieval impact on contemporary culture, this author distinguishes two visions, which he calls Arthurian and Carolingian, representing “unity through aggression and war” in the case of King Arthur and “unity through integration by peaceful means” in the case of Charles the Great. Both characters are then for Gerner an embodiment of cognitive categories, through which he chooses to see political and cultural reality (Gerner 1999: p. 39–43). Those categories are also applied by other authors of the same volume (cf. Marácz 1999). Gerner knows that it is hard to expect direct references to these characters, but he is persuaded of their importance. The Arthurian metaphor especially is new for the European integration subject and could rarely be found in any official speech or press article.2

It is then not a connection between Arthurianism and Europeanisation, but a set of two other links leading to such a connection. The first is the medieval coexistence of Arthurian and Carolingian mythology (noticed even by medieval authors, for example the famous set of Nine Worthies, where both characters stand next each other, or Jean Bodin’s categorisation of all legendary narratives into one ancient Greek-Roman “Matter of Rome” and the two medieval: Arthurian “Matter of Britain” and Carolingian “Matter of France”). This is probably why, according to Gerner, “the ideological and political impact of Charlemagne and Arthur is linked not to factual history but to mythologization. In this capacity they are equally real. Hence Charlemagne may serve to symbolize expansion and integration, whereas Arthur symbolizes mission and conquest and, through the infusion of the legend of the Holy Grail and of the figure of Perceval in the cycle, ultimately, the crusading spirit” (Gerner 1999: p. 44).

Gerner is far from idealising Charlemagne, mentioning that “as a historical actor, Charlemagne certainly was a warrior, and a ruthless one” (Gerner 1999: p. 44). However, the Arthurian legend was embodied in “martial romanticism of chivalry and adventure in the era of the crusades,” which Gerner agrees with Dominique Boutet that “in Arthur’s kingdom peace is only a parenthesis” (Gerner 1999: p. 45). As Gerner writes, for Charlemagne “the mythological connotation is law and learning, order, civilization and security within recognised frontiers, marken (marches)” because while Charlemagne is depicted as a warrior and conqueror in 13th-century chansons de geste, his knights, in contrast, show a disinterest in warfare. Instead, they favour the tranquillity of country life and seek to amass wealth through agriculture rather than relying on plunder. This is why the Charlemagne and the Arthurian romances – which, as Gerner reminds, have the same cultural roots and were sometimes blended – “taken together, they can be said to represent the Janus face of medieval European civilisation’s manner of expansion. On the one hand, we find state building, law making, commerce, incorporation and integration, and on the other hand, warfare, mission, conquest and sacrifice” (Gerner 1999: p. 45).

The Carolingian and Arthurian metaphorical model usages can then be seen as an indicator of how Europe is imagined. Whereas “the Arthurian quest for pureness in the name of blood” is not visible in the European integration context, “the Carolingian strife for integration” is a constant element of the official integration discourse. For both metaphors, however, “the notion that Western Europe is at the centre and Eastern Europe is the object of either conquest and integration and then conquest and subjugation” is common. Gerner writes that “unity through aggression and war,” and “unity through integration by peaceful means” are two ways, in which Western European civilisation encounters the rest of the world, especially the Eastern part of the continent. Medieval metaphors are, according to him, especially usable in relation to European integration because of the identification with the idea of a universal mission: “Medieval Christianity [...] can serve as a metaphor for contemporary Europeanness” (Gerner 1999: p. 41).

Gerner’s observations are at the same time both insightful and oversimplifying. He is probably the first to define the Arthurian-Carolingian dichotomy and its meaning for the European Union. The Carolingian and the Arthurian myths compete in the European imagination, or maybe even in what C. G. Jung, the Swiss founder of analytical psychology, called the collective unconscious (Jung 1969). At the same time Caroliniana and Arthuriana, although dichotomic, are complementary. However, contrary to Gerner’s conclusions, Arthurianism does not have to be seen as a mytho-mnemonic complex focused on war and aggression. There is much more in Arthuriana. I argue that compared to Caroliniana it can be seen as an equally peaceful message from our ancestors.

According to Gerner’s late-twentieth-century observations and comparisons, contemporary interest in the Middle Ages is more widely spread than it was in previous centuries. We need to add that this interest is the expression of medievalism, as it is focused on contemporary images of the Middle Ages and not on the Middle Ages as such (with a side note that this simplification is useful for the purpose of the current study, and certainly the context of the long history of critical thinking about medievalism may be indicated here). Therefore, is this medievalism nationalist or is it cosmopolitan? Gerner writes: “Romanticism supplies the imagery of contemporary medievalism.” He mentions medieval festivals, which are not nationalist but localist and European at the same time, and connote regional rather than ethnic identity. The motivation behind them is “not an expression of Nordic narcissism, but of the wish to emerge as a strong and old component of the European Union,” the author asserts. While quoting a Swedish journalistic text published in 1997, which notes of medievalism that its “historical role-playing has a system of rules that creates security” and that “interest in the Middle Ages was a kind of harmful escapism,” Gerner asserts that medieval items are both exotic and close for contemporary people (Gerner 1999: p. 39–40). Undoubtedly, the medievalism described by Gerner is also expressed in the European political project and its collage of myths and symbols constituting acquis mythologique communautaire.

4. European medievalism3

The analysis of Carolingian imagery in contemporary European integration begins with an attempt at answering the question: How might medievalism be deployed in contemporary EU-level discourse and politics? According to Tommaso di Carpegna Falconieri, a period acknowledged as foundational in European history, spanning from the Romantic Era onwards, is universally recognised by nearly all European nations. Consequently, it should be feasible to identify within this era certain fundamental traits of a shared European society, potentially involving an exploration of the common origins of a contemporary European identity (di Carpegna Falconieri 2019).4

The value of Charlemagne for the modern or postmodern European integration process is symbolic, but historically he actually did attempt to integrate Europeans. According to di Carpegna Falconieri, the initial medieval emblem representing the European Union is Charlemagne. References to the ancient sovereign in his capacity as a founding figure emerge as soon as Charlemagne establishes the credentials qualifying him to be acknowledged as one of the progenitors of Europe – an undeniable historical reality. Indeed, contemporaneous sources referred to him as Pater Europae, meaning “Father of Europe”, underscoring the undeniable connection. It is evident that the Carolingian Empire, despite debates about its duration, idealism, and fragility, served as an institution that, in the pursuit of unity, substantially transformed societies that were in the nascent stages of European development for centuries. The Carolingian Empire was a political entity that was authentically European, with its focal point not situated in the Mediterranean region, which had evolved into a border and interface with the Islamic world, but rather in continental Europe. In the present context, the ideal of the medieval empire aligned precisely with the potential construction of European consciousness. This involves synthesising diverse populations that, while acknowledging their distinct characteristics and identities, converge on the recognition of a superior organising principle.

Therefore, the legacy of Charlemagne has to be treated more precisely than vague general reference to the mythical. In Falconieri’s words: “We are not European because Charlemagne existed, but also because Charlemagne existed,” whereas “the Carolingian Era functions so effectively as a precedent and exemplum,” and “the history of united Europe may lend itself to improper uses, the simplest of which [...] is that of recourse to a mythical and golden age as an expedient to silence the more recent – insidious and cruel – past” (di Carpegna Falconieri 2019: p. 204).

As Falconieri noted, the English do not find much relevance in Charlemagne, except perhaps to reaffirm their belief that this Europe is essentially a fragile agreement orchestrated by the Paris-Berlin axis. This perception may not be unwarranted, given historical instances such as a Vichy France volunteer unit seamlessly integrating into the Waffen SS during the Second World War and naming itself the Charlemagne Division. Additionally, in the 1960s, Charles de Gaulle actively worked on shaping the concept of a ‘Carolingian Europe,’ in contrast to an ‘Atlantic Europe’ (di Carpegna Falconieri 2019).

5. Methodology of the research

The article analyses the roots of contemporary European identity, examining references to Carolingian and Arthurian mythology in the context of European integration. The research methods are diverse and include discourse analysis, mythology comparison, historical analysis, examination of the new concept acquis mythologique communautaire and literature analysis. They allow for a comprehensive understanding of the role of Carolingian and Arthurian myths in the context of European integration. The topic is worthwhile and timely, even if some very interesting source materials are old. The work refers to seven postmedieval references. The notion postmedieval does not help much in terms of demarcating the scope of the research, because that refers to a 500-year period. While citing the arguments of other scholars, my own clear intervention draws upon three Carolingian references from the origins of the EU and four from the period of EU expansion. This parallel deserves to be signposted as early as here and will be appreciated by readers acquainted with the history of the European Union. The article essentially compiles interesting and relevant primary sources. Some of these materials are necessary and insightful, although they come from many different directions, jumping from the 1950s to the 2000s, from Germany to Croatia and from political speeches to newspaper articles.

An indication of the methods of analysis will make it easier to see what the quotations are for and what they are supposed to imply. First, the selection. The examples are deliberately chosen from critical moments in this discourse, specifically the origins in the 1940s and 50s of what would become the EU, and the period of EU expansion in the first decade of the twenty-first century. Their reconfiguration is based on digestion of sources. They will be paraphrased and condensed, although in some cases, where the sources may not be readily available, they will be cited in an extended manner.

The analysis refers to clarifying the seven sourced references in time, space, authors’ presumed nationality and the authors’ apparent attitudes to European integration. The references have been categorised in two groups, namely the references from the period of EU origins and the references from the period of EU expansion.

References from the period of EU origins:

1949, West Germany, German authors, apparent proponents of EU integration;

1952, France, German-French author, apparent proponent of EU integration;

1952, West Germany, German author, apparent opponent of EU integration.

References from the period of EU expansion:

2000, United Kingdom, British author, apparent opponent of EU integration;

2003, Germany, French author, apparent proponent of EU integration;

2005, Slovakia, Slovak author, apparent proponent of EU integration;

2009, Croatia, Croatian author, apparent proponent of EU integration.

Regarding the second part of Carolingian and Arthurian dichotomy, in the absence of Arthurianism in EU-related political discourse some Central European artistic representations of Arthurianism, connected to political communication post-1989, will be mentioned. Such an approach will enable discussion about Arthurianism’s potential.

6. Research results

6.1. Three early post-war Carolingian references: the prize, the flag and the ironic criticism (1949-1952)

The first three references to Charlemagne were made in Western European space of the institutions and print media in the context of post-war years. I will describe them consecutively in chronological order.

Reference 1: Germany (Aachen), 1949

The first Carolingian reference I will mention comes from the semi-official symbolism of the European integration movement. Since 1949, a high-profile prize, the Charlemagne Prize of the City of Aachen, has been awarded. According to the Charlemagne Prize Proclamation, it is “awarded annually to deserving personalities who have fostered the idea of Western unification in political, economic and intellectual-spiritual regard.” In the above mentioned “Proclamation of Christmas 1949” the choice of Charlemagne as a patron is explained also in relation to the “Western” world: “A number of citizens of our city of Aachen, forever bound to it by birth or by fulfilment of their life vocation, have therefore decided to establish an International Prize of the city of Aachen which in memory of the great founder of Western culture is to be named the ‘Charlemagne Prize of the City of Aachen’” (Maas et al. 1949).

Among future laureates one finds European and American politicians (e.g. Winston Churchill in 1955, George C. Marshall in 1959), several public intellectuals and from time to time popes (2004, 2016), but also collective entities (the Commission of the European Communities in 1969, the people of Luxembourg in 1986) and even the abstract entity (the recently introduced currency, the euro, in 2002).

From the perspective of more than fifty years, Walter Eversheim, the spokesman of the board of directors of the Society for the Conferring of the International Charlemagne Prize of Aachen, distinguished three levels, on which the prize has had an impact: European, national and local. On the European level the prize constitutes, through political messages, a European forum and a tool to focus public attention on the state of efforts toward integration. Nationally, as Eversheim highlighted, it helps Germans to lay the groundwork for a European consciousness based on international understanding. On the municipal level it enhances “Aachen’s standing beyond its borders” – being even a way to revive the city’s European past and “to focus the attention of European-minded people on Aachen again, making the name of the Imperial City known beyond its own walls. After all, Aachen was once the centre of the first European empire under Charlemagne” (Eversheim 2003). Walter Eversheim tells the story according to which Engelbert Pfeiffer, the creator of the prize himself proposed to name the award the Charlemagne Prize of the City of Aachen.

In Eversheim words Charlemagne is more than an eponym and a promotional vehicle, but a programme, an agenda, introduction of the idea of the Christian Occident into the Proclamation and presenting such an Occidental idea as a dominant feature in looking back at the Carolingian empire of Charlemagne with unified axio-normative, linguistic, financial, administrative, religion and culture systems, and modelling programme for the future unification of Europe. Thus, it is an award for service in the cause of Europe. In his opening sentence Eversheim quoted a statement of the prize foundation, which called it an international prize to be awarded annually in any sector “for the worthiest contribution in the service of West-European understanding and communal work, and in the service of humanity and world peace” (Eversheim 2003).

The message sent from Aachen more than half a century after the Proclamation 1949 paraphrases the idea of the prize creators and is assigned to the early reference of 1949. Located in West Germany, at the borderland, created by German authors, who apparently were the proponents of EU integration, it uses references to European Middle Ages and postmedieval medievalism. It generates no legal consequences and can be assigned to acquis mythologique communautaire, ie. the accumulated symbols with strong axio-normative vision but with no belonging to legal documents such as it would be in the case of preambles of EU documents. It distinguishes them from the corpus of supposed acquis historique communautaire.

Reference 2: France (Strasbourg), 1952

The second reference to Charles the Great is not much younger. In 1952 there was discussion as to what the official pan-European flag should be. At that time the debate concerned the case of the Council of Europe, the first intergovernmental and inter-parliamentary structure on the Old Continent. The author of the finally accepted version, Arsene Heitz, “an employee in the Council’s mail room and a talented draughtsman who produced sketches of his own and others’ ideas” (Prisacariu 2007) proposed the flag referring to Charles the Great. He gave this idea priority among other ideas, which he had had for the flag. In the letter sent to a Council senior official, Filippo Caracciolo (stamped: Strasbourg, January 5th, 1952), he argued for the green-coloured proposal as inspired by the medieval standard of Charlemagne (the standard, he noted, that was given to Charlemagne by Pope Leon III in 800). Carolingian Europe seemed to be an important point of reference for the project’s author, when he wrote in the same letter that he fact of putting the cross of Scandinavian emblems into the standard of Charles the Great may symbolise the advent of Europe more complete than that of Carolingian Empire (Archives historiques du Conseil de l’Europe WWW).

The messages sent internally by the German-French author, an apparent proponent of European integration, also belong to the acquis mythologique communautaire. Their status is similar to the status of preambles, but the final axio-normative message is graphical, non-textual, not referring to the values verbatim. As a proposal that has finally been rejected, it belongs only to the historical archives and to the discourse surrounding European integration history, not to the officially accepted conglomerate as it has been in the Reference 1. The Carolingian-inspired flag project has never been officially accepted and soon became forgotten.

Reference 3: Germany (Bonn), 1952

The third Carolingian reference comes (only coincidentally) from the same day (5th January 1952) when Heitz sent his letter explaining why Charlemagne’s standard should be used as the European flag. The German newspaper Frankfurter Allgemeine Zeitung printed an article by Hans von Hentig, a law professor previously involved in political activities. He had not long earlier returned to Germany from emigration to North America.5

The author takes Carolingian metaphor as granted and does not deny its relevance. He criticises the choice of Carolingian reference in terms of its axiological and normative relevance for the economic community. For him the European political project and its chosen symbolism is delusional and grandeur. However, it can be noted that all three Carolingian references from the years 1949–1952 come from the first years of post-war Europeanisation process, which was expressed as a community of coal and steel on the one hand, and the community of human rights on the other. It is clear that since their very first day, the references to Charlemagne had their proponents and opponents. Over the years the symbolic prize has accumulated prestige. Despite ongoing euro-scepticism the economic community has extended its reach to other initially Carolingian lands, even if Charlemagne alone would hardly be seen as peaceful. Despite discussion in the 1950s the proposed Carolingian symbolism of the flag has been suspended in favour of Biblical Christian twelve stars. Nevertheless, in all three cases a need to refer to Europe’s imagined medieval past, either seriously or ironically, remained. Sometimes it can be seen as superficial euro-medievalism, but the social, cultural and political energy connected to the early European integration debates in the three cases suggests that they belong to acquis mythologique communautaire.

6.2. Carolingian references between the West and the East of Europe (2000–2009)

European integration resulted in a supranational entity recognised worldwide as a political actor, in the 1990s becoming a strong magnet for Eastern European countries in their post-communist transition new era. These countries from behind the Iron Curtain struggled between the process of Westernisation – both simultaneous globalisation and Europeanisation influences – and Easternisation in its post-Soviet local shapes. Carolingian references, so far coming from the European West, were now accompanied by Eastern Europeans referring to Charlemagne on their way to European Union accession.

Supranational political projects obviously differ from the national in their scope. They need to be attractive to voters and their elites from different national cultures. To achieve stakeholder and audience positive attention they need to be connected to traditions acceptable even within conflicting memory cultures. These traditions may either be organically developed, or invented by political marketers and ideologists. In search of transcultural mobilisation of memory in Europe through the medium of symbols, European intellectuals, politicians and officials consistently referred to Charles the Great or tried to criticise this reference. Notably, even those who criticised some details of the European integration project, referred to the Carolingian era and its mytho-mnemonic complex.

Reference 4: United Kingdom, 2000

From the positions of what was later to become the impetus behind Brexit, Ken Gulleford wrote an ironic article titled “Prime Minister Blair, young Leo and the Charlemagne Prize” to deconstruct the myth of Charlemagne in an ironic manner. The pretext for criticism was Tony Blair’s acceptance of the Charlemagne Prize for services to European integration eighteen months earlier. The selection of words and phrases, when condensed, was such as: “spin doctors had no grasp of European history”; “the empire of Charlemagne was an ephemeral affair ordained by papal trickery barely surviving its founders death and disappearing completely within a century”; “the early forerunners of today’s Brussels fat cats”; “single currency [...] if it enjoyed any better fate than its sickly modern counterpart the Euro”; “his canonisation was delayed for some 350 years on the grounds that his sexual exploits were no less extensive than his territorial ones”; “at the Court of Charlemagne [...] the title of Europe was adopted to describe the continental peninsula so named after Europa, a legendary lady famous for enjoying carnal relations with a Bull”; “barbaric Charlemagne” and finally “a more inauspicious and foreboding symbol than the Charlemagne Prize is difficult to imagine being awarded to a third millennium Prime Minister” (Gulleford 2000).

The above selection of ironic criticism demonstrates the sceptical stance to both the medieval Carolingian figure and its postmedieval use in the symbolic function. Its publication expressed anti-Europeanism typical of some British political circles. In a satirical article Gulleford critiqued the myth of Charlemagne and questioned Tony Blair’s acceptance of the Charlemagne Prize for European integration. Gulleford used ironic language to criticise the early influencers of European integration in the overall tone leaving not much space for constructive discussion, far from the usual language of political communication.

Reference 5: Germany (Aachen, award for Valery Giscard d’Estaign), 2003

When German chancellor Gerhard Schroeder made the laudation for U.S. president Bill Clinton receiving the Charlemagne Prize in 2000, he made a clear reference to Western unification, extending the Carolingian symbolism of European unity beyond Europe, but not necessarily including the Eastern part of the continent in this unity, because “as is stated in the Prize’s founding act, [it] is awarded for outstanding service to Western unification” (Schröder 2000). The mention of Western unification makes the above speech essentially about reinventing a medieval tradition to suit current political needs, which were expressed even before the EU enlargement of 2004.

The Carolingian tradition seems, however, to be organically developed in France. At least it was propagated as such in probably the most emotional approach towards Charlemagne, expressed by Valery Giscard d’Estaign, the 2003 laureate of Charlemagne Prize. The French connotation may be significant here, as Charlemagne is a national hero of France and for some time even one of its saints, although contested and dubious because of the canonisation by antipope later invalidation. However, at the time of the speech Carolingian references had already for decades been reinvented in the pan-European context by political myth-makers.6

This long passage, intentionally included here in its full extent, exemplifies the category of Carolingian reference, which can be synthesised briefly as both the evident cult of Charlemagne and an expression of Carolingian tradition. Whereas for the Euro-American political alliance Carolingian equals ‘international’ and ‘Western’, for the French elites Carolingian means emanating from the French centre towards European semi-peripheries and peripheries. This piece of acquis mythologique communautaire by the French politician reflects on the significance of being awarded the Charlemagne Prize and draws connections between the historical figure of Charlemagne, the author’s personal experiences, and the contemporary task of drafting a pan-European Constitution.

Valery Giscard d’Estaign expresses intense emotion and happiness upon receiving the Charlemagne Prize, portraying a sense of humility by considering themselves even a disciple of Charlemagne. The humility is emphasised by contrasting their task of drafting a European blueprint with Charlemagne’s attempts of creation of an empire. The author shares a childhood memory of celebrating Saint Charlemagne’s day in schools, where the legendary figure of Charlemagne was transformed into a saint. This personal connection adds a layer of emotional significance to the prize and creates one more bridge between the past and the present. The piece delves into the historical attempts to unify Europe, citing figures like Caesar, Charlemagne, and Napoleon who sought unification through force. The author contrasts these historical approaches with the contemporary effort to unify Europe through the drafting of a Constitution, highlighting the shift from the sword to the pen.

The central question raised is whether the substitute of the Charlemagne sword, a pen, can succeed where the sword failed in unifying Europe. The author implies that the task at hand, drafting a pan-European Constitution, is a unique endeavour in the history of Europe. It signifies a departure from past methods of coercion and conquest, emphasising a more cooperative and diplomatic approach. The author contends that Europe is more than just a cooperative of Member States; it is a place where people feel European and where histories are interconnected. Charlemagne’s example is used to illustrate this point, showing how his reign, burial, and familial connections spanned different regions of Europe, contributing to a shared historical and cultural identity. The author acknowledges the weight of responsibility on the Convention tasked with drafting a pan-European Constitution. This responsibility is portrayed as unprecedented in European history, as it seeks to define the continent’s political and legal framework in a way that reflects the interconnectedness of its people and their shared history. In summary, this part of acquis mythologique communautaire combines personal reflections, historical references, and a forward-looking perspective to emphasise the unique nature of the task at hand, which is the drafting of a pan-European Constitution and its potential to shape the future of Europe in a way that diverges from past attempts at unification.

Reference 6: Slovakia, 2005

The complementary appropriation of Charlemagne can be found in the European Central East. For Eastern Europeans, the Carolingian means precedent. Politicians from the region recognise Charlemagne as the person who unified Europe. This is visible in the speech of the Deputy Prime Minister of the Slovak Republic, Pál Csáky in 2005: “The European Union lives through historical moments. 1st May 2004 became a new and perhaps one of the most important milestones in its history. All 25 capitals of the new Europe celebrated the success of the project that created conditions for shaping an alliance, unprecedented from the times of Charlemagne (Charles the Great)” (Csáky 2005).

The text highlights a significant historical moment for the European Union on May 1, 2004. On this date, the EU witnessed a crucial milestone as 25 capitals of the newly expanded Europe celebrated the success of a project that set the stage for the formation of an unprecedented alliance. The accomplishment is likened to the times of Charlemagne, emphasising the historical importance of this development in the context of European integration. This connection is presented very straightforwardly, with no intermediary moments. It exemplifies mythical thinking, extratemporal space of connection through space. Eastern Europe seems to be unified with the West in the unprecedented analogy to medieval times.

Reference 7: Croatia (Dubrovnik), 2009

Another Eastern European reference to Charles the Great comes from the Croatian city of Dubrovnik in 2009. Parts of the Carolingian myth were at that time presented in a way which suited the context of Europeanisation and forthcoming EU accession. The book Roland’s European Paths was described on the Europe House Dubrovnik website.7

Clearly visible in it is an attempt to use the Carolingian context in the Europeanisation process. However, this time the reference is not just generally Carolingian, but also specific. Roland, the Carolingian first knight, is an indicator of Europeanness and evidence of Croatian belonging to the socio-cultural community of Europeans. Dubrovnik is being self-presented as linked to Western Europe through the medium of the legendary character. The book mentions Carolingian knight Roland and his European paths, published by Europe House Dubrovnik. It explores the common roots of a united Europe, symbolised by the legendary figure. The roots, depicted as invisible threads, have connected different parts of the European continent for centuries, transcending political boundaries. The narrative traces back to the 8th century with Charlemagne, the first European ruler, seen as laying the foundations for a united Europe. A loyal knight of Charlemagne, became a symbol of justice, independence, and freedom over the centuries. Since the 15th century, his image has adorned columns in many European town centres, including Dubrovnik, where the knight is referred to as Orlando.

The book is a collaborative effort, featuring texts written by twelve social sciences and humanities experts from various European countries. To emphasise the European aspect, the texts are translated into five languages and illustrated with landscapes and Roland columns from European countries such as Latvia and Croatia. Among the words and phrases such as “a symbol of European heroism”, “Roland’s European journey”, “a symbol of freedom and state independence”, “a symbol of freedom” the notification of Croatia having remained outside of enlarged EU borders despite the recent EU enlargement is highlighted. The authors refer to the importance of Dubrovnik in the common history of Europe by connecting various aspects of reverence for Roland from the 8th to the 21st century. The project underscores the enduring significance of the legendary Carolingian knight Roland as a symbol of unity and freedom throughout European history.

The EU enlargement and expansion context between West and East induces the local Europe House, a non-profit organisation, impulse to search for European roots and to bring up the Carolingian reference. The activity contributed to the symbolic universe of Croatian EU aspirations, which were finally fulfilled four years later, in 2013.

7. Discussion on Carolingian references

We may sum up the review of Carolingian references with several observations. First, all these references to Charles the Great are either attempts to permanently link the medieval ruler with the idea of European unity or attempts to criticise the European project. Whether supportive or critical of European unity, all these references permanently link it to Charlemagne. As we read the negative quotes, there is no attempt to criticise a connection between the Carolingians and the EU. In fact, the critics take the connection for granted and use it to make their criticisms. They criticise the Carolingian Empire and the EU, but they do not suggest that the idea of a connection is a false one – they seem to agree that the connection is valid. Even when the symbol is criticised, it is at the same time a criticism of the unification project, not just its symbolic layer. Through the medium of attacking the symbol, the idea of integration is attacked. This way the symbol is accepted by its opponents as the embodiment of what they contest. The title of the first such ironic article is in the German original Karl der Grosse und Koks which means “Charlemagne and coke” and connects the symbolic ruler to grey coal-based fuel. It suggested that attacks on European idea would be conducted in forthcoming years with the use of irony towards Charlemagne. Several decades later, this is exactly what the above-mentioned British Eurosceptic writer Ken Gulleford did. When he criticised the Carolingian reference usage, he was criticising the idea of European unity as well. Both Euro-sceptical and Euro-enthusiastic references seem to refer to Charlemagne as a saint, empowering either sceptical or enthusiastic stance. This is an interesting discursive parallel between European warrior and Christian saint context.

The euro-enthusiastic discourse, as was the case of the Croatian city of Dubrovnik located in South-East Europe, followed Western European tradition of positively referring to Charlemagne, his knights and his court. There are also more general, but similarly positive, references to Charlemagne in Eastern Europe at the time of European Union enlargement. The phenomenon of referring to Charlemagne here takes either general or specific forms in Eastern Europe, but the references seem to be appreciative. No critical reference has been revealed in the analysed material.

The official documents of Aachen, the city which for half a century has sought to build its contemporary position on the historical reference to Charlemagne, are somehow mirrored by the case of Dubrovnik’s cultural institution, trying to refer the Carolingian hero Roland on a Croatian path to joining the political community focused around Germany and France. Both cities were arenas for referring to Charlemagne in a European integrationary context.

The Western European aspect of the Charlemagne Prize is more evident than its generally broader European aspect. It was obvious in the 1950s, but from the 1990s highlighting the Western European quality of the Prize did not reflect the forthcoming accession of new countries to the European Union. The Western European focus during the European Union enlargement process, even one year before the accession of “new European” countries, raises some doubts related to the potential of the Carolingian legacy for European identity-building.

We need to remember that the EU enlargement process was built on the principle of European integration conditionality: the legally binding acquis communautaire has to be accepted by a newcomer, although some pre-negotiated transitional period is available. It seems that Eastern European officials wanted to adjust their discourse to the Western focus on Carolingian references. The correlation with these countries’ EU accession is clear, and we can expect it to be a part of their communication strategy at that time.

A rock-solid ending showing what this article has given us and what new questions it opens up, may be not possible without discussing two more issues. One is the legacy of the Carolingian and Arthurian dichotomy for European integration politics. Another one is acknowledging Charlemagne and King Arthur common status between acquis communautaire and acquis mythologique communautaire countering two of Gerner’s points. One, that King Arthur is equally as applicable as Charlemagne as a legendary model for the EU – he has not been. Two, that Charlemagne represents peaceful integration, whereas Arthur represents war and conquest – he need not do so.

In the exploration of Carolingian references in the context of European integration, a multifaceted analysis emerges, shedding light on the intricate interplay between historical symbolism, political discourse, and the collective identity of a continent in transition. The review encapsulates various perspectives, presenting Charlemagne as a pivotal figure either fostering the ideals of European unity or becoming a target for critics of the integration project. Whether supportive or critical, these references inevitably tether the notion of European unity to Charlemagne, creating a permanent link between the medieval ruler and the evolving European identity.

Notably, the critique of the European idea seldom challenges the connection between the Carolingians and the EU. Even in negative quotes, the implicit agreement on the validity of this connection becomes evident. Critics may scrutinise the Carolingian Empire and the EU, yet the underlying acceptance of the connection prevails. The attacks on the symbolic layer, exemplified by the ironic article Karl der Grosse und Koks, not only criticise the symbol but concurrently assail the entire unification project. In this way, opponents unwittingly acknowledge the symbol as the embodiment of what they contest.

The Euro-sceptical and Euro-enthusiastic references to Charlemagne cast him as a quasi-saint, empowering either sceptical or enthusiastic perspectives. This duality presents a fascinating parallel between the European warrior and Christian saint contexts, showcasing the versatility of Charlemagne as a symbolic entity. Euro-enthusiastic discourse, exemplified by Dubrovnik, aligns with Western European traditions, positively referencing Charlemagne, his knights, and his court. Conversely, in Eastern Europe during the EU enlargement period, references to Charlemagne are generally appreciative, lacking critical tones.

Cities like Aachen and Dubrovnik, with historical ties to Charlemagne and Roland, become symbolic arenas for expressing European integration aspirations. However, the Western European focus of the Charlemagne Prize, even during EU enlargement, raises questions about the broader applicability of the Carolingian legacy for shaping a pan-European identity.

The integration process, built on the principle of European integration conditionality, prompts Eastern European officials to align their discourse with the Western emphasis on Carolingian references. The correlation between the usage of such references and the accession of these countries to the EU highlights a deliberate communication strategy.

8. The case of Polish Arthurianism reception as a peaceful Arthurian message

The case of Polish Arthurianism unfolds as a distinctive and peaceful reinterpretation of the Arthurian legend, steering away from traditional themes of expansion and conquest. Explored in various, including literary works such as Maria Kuncewiczowa’s Tristan 1946 and Tadeusz Słobodzianek’s political drama Merlin. The Other Story, as well as visual representations like Magdalena Abakanowicz’s sculpture King Arthur’s Court and the Japanese film Avalon, have contributed to the evolving Polish Arthurian tradition. The exploration of Arthuriana in Poland extends beyond literature to encompass psychological, political, feminist, and conspiracy-theoretical perspectives, reflecting the multifaceted nature of this cultural revival. Notably, Władysław Pasikowski’s post-1989 creations, delving into the complexities of loyalty through the knightly archetype, challenge established narratives and raise profound questions about fidelity amidst societal transformations. In essence, Polish Arthurianism emerges as a unique cultural reinvention, reconnecting with forgotten traditions and offering a distinctive narrative within the broader global discourse surrounding Arthurian legends.

The reception of Arthurianism in Poland never refers to expansion and conquest. Several instances of diverse Polish Arthurian traditions, previously presented at the fourth annual Conference for Medieval Studies (Re)Imagining Arthur: Cultural and Theoretical Contexts of the Arthurian Legends at Purdue University, West Lafayette, Indiana, provide intriguing insights from Central Europe. Despite Poland’s medieval foundation in Europe and a state tradition dating back to at least 966, there was no distinct Polish Arthurian tradition during the Middle Ages, a period when the Arthurian legend was popular in the broader European cultural context. However, recent processes of simultaneous linguistic Anglicisation, cultural Americanisation and political Europeanisation, have prompted Poles to re-examine and reinvent their Arthurian narratives. The ongoing construction of Polish Arthurianism is becoming more prominent, particularly in the cultural discourse of the era of EU expansion. Various associations exploring Arthuriana in Poland often involve analyses ranging from the psychological impact of World War II to feminist or anti-feminist discourses, as well as political, fantasy, or conspiracy-theoretical approaches. The development of Polish Arthurianism, influenced by global trends, may even prompt questions about the role of Arthurian components in Polish national identity.

Tristan 1946, published in 1967 in Poland and translated into English in 1974, represents an early manifestation of Polish interest in the Arthurian legend. The author, Maria Kuncewiczowa, a Polish immigrant in the U.S., confronted the Tristan and Isolde myth with the experiences of those who lived through World War II. Since the 1990s, interest in Arthurian themes has grown in Polish culture, with works such as Tadeusz Słobodzianek’s political drama Merlin. The Other Story and Andrzej Sapkowski’s Arthurian short story Maladie contributed to the evolving Polish Arthurian tradition. In addition to literature, Polish sculpture, exemplified by Magdalena Abakanowicz’s King Arthur’s Court in Warsaw’s park Pole Mokotowskie, and the Japanese film Avalon, made in Poland, further illustrate the prevalence of Arthurian themes in Polish art. Within scholarship, Tadeusz Komendant’s interpretation of the Arthurian legend as an almost-religious matter offers a unique perspective in Polish public discourse. The increased interest in the Arthurian legend in Poland reflects broader trends and the widespread influence of Arthurian narratives, now infused with a distinct East European context. This phenomenon, including the exploration of Arthurian elements in the Siedlęcin tower, represents a form of Polish cultural reinvention, reconnecting with forgotten intercultural traditions and challenging the idea of Arthurianism as foreign domination.

Władysław Pasikowski’s post-1989 creations challenge sacred mnemo-mythical narratives and address taboos, contributing to the ongoing debate on whether Polish culture is linked to Western Europe. His works portray military figures, inherently embodying high loyalty to the state. Pasikowski taps into the archetype of the warrior in its knightly form, a central figure in European cultures rooted in the imagery of the European Middle Ages. The choice of the knight is not incidental, as within European culture, knights are consistently aligned with the “good side” and form the narrative’s focal point. Symbolically, they represent the centre of the world, almost sacred and morally superior, adhering to the code of chivalry regardless of their sovereign. Even knightly anti-heroes, known as “black knights,” adhere to the code of chivalry, and their villainous status can often be transcended through death or reconciliation within royal communities. The knight’s inherent quality of loyalty, regardless of the side one stands on – especially in the post-communist context of remaining faithful to the newly “liberated” country despite past involvement in the authoritarian regime – Is a thought-provoking theme in Pasikowski’s artistic work. Introducing the narrative of betrayal alongside disillusionment with the new power adds complexity to Pasikowski’s works, consistently posing the question: Can betrayers also be knights, and can knights, in turn, be betrayers? Pasikowski’s central inquiry revolves around how to maintain loyalty to the transforming state and the transformed society, forming the core of his artistic exploration. The answer is articulated in terms of a mythscape developed into an acquis mythologique (Toczyski 2018).

The case of Polish Arthurianism represents a distinctive and peaceful reinterpretation of the Arthurian legend, deviating from the traditional themes of expansion and conquest. Explored in diverse traditions at the fourth annual Conference for Medieval Studies, the phenomenon reflects a contemporary resurgence of interest in Arthurian narratives in Poland, driven by linguistic Anglicisation, cultural Americanisation, and political Europeanisation. This cultural revival, marked by literature, sculpture, and cinema, prompts a multifaceted exploration of Arthuriana, challenging sacred narratives and prompting questions about its role in shaping Polish national identity. Władysław Pasikowski’s post-1989 creations, particularly his exploration of loyalty through the knightly archetype, contribute to this peaceful Arthurian message, delving into the complexities of fidelity amidst societal transformations. In essence, Polish Arthurianism serves as a unique cultural reinvention, reconnecting with forgotten traditions and presenting a distinct narrative within the global Arthurian discourse.

9. Conclusions and directions for further studies

The article introduces two additional considerations: the legacy of the Carolingian and Arthurian dichotomy for European integration politics and the common status of Charlemagne and King Arthur between acquis communautaire and acquis mythologique communautaire. The absence of King Arthur as a model for EU integration raises the question of why this alternative mythical figure has not been utilised. The Arthurian component of the article suggests that Arthuriana could offer a unique perspective within the European integration project. However, delivering a comprehensive exploration of Arthuriana would require further analysis and understanding of its potential impact. It may add depth to the historical or mythological elements of Europe’s cultural heritage, embedding the Arthurian Round Table in the symbolic layer of the European Union’s predecessor. Currently the Charlemagne Prize and associated buildings embody a semi-official cultural memory of Europe, reflecting the common heritage of the continent. The review of Carolingian references underscores their significance in shaping the discourse on European integration. The article encourages a deeper exploration of the Arthurian dimension, positing it as a potential avenue for understanding and adjusting the integration project. The complex interplay between historical, symbolic, and mythological elements contributes to the ongoing evolution of the European identity.

The question remains: why has Arthur not been used as a model for EU integration? As even just speculation on this may be informative, I suggest that local Arthurian traditions are currently reinvented and in the common awareness were rather seen as related to Britain, Albion, The Isles, not Europe as a whole. Reading articles on the Arthur legend in Central Europe may be an important starting point. There is much more in Arthuriana. I argue that compared to Carolingiana it can be seen as an equally peaceful message from our ancestors.

How to deal with the subtle European identity of those who either are English speakers unfamiliar with French linguistic identities or whose only lingua franca (sic!) is English for Speakers of Other Languages, available through imperfect school Anglicisation and through Anglophone global culture? The Arthurian myth available in both the medieval legends and postmedieval narratives is a suggestion worth considering within the political European integration project. The symbolic heritage of Europeans can be approached through Arthuriana, contributing to the pedagogy of Europeanisation.

I have explored and described the usage of a medieval Charlemagne myth and Carolingian empire metaphors as the imagined prototype of European integration. The analysis of Carolingian myth usage prepared by Gerner was the conceptual tool with which contemporary references to Charlemagne were approached. As Gerner suggests, the Carolingian myth should be analysed in comparison with the Arthurian myth. Their Western European medieval origins and knightly content surrounding the main character of the king suggest that they are two sides of the same imaginative phenomenon. However, only the Carolingian component of it seems to be cotemporarily used in the European integration process, both by supporters and critics of the integration process.

The Arthurian component of the dichotomy seems to need both reworking, understanding anew, and adjusting for the integration project. A prestigious award for media-makers is called Médaille Charlemagne pour des Médias Européens. One can easily imagine the Round Table medal being handed out at one of the Hanseatic “Arthus Courts,” a possible beginning of a new symbolic play in the realm of supranational politics.

Mythological and historical elements have been employed since the inter-war period, connecting to the shared cultural heritage of the European continent. As the Arthurian side of the analysis is less prominent, it may be seen as hardly of equal weight with the Carolingian one. The main thought on Arthurian references, or the lack thereof, is that the Arthurian component of Gerner’s dichotomy seems to need both reworking, understanding anew, and adjusting for the integration project. The historical or mythological elements of Europe’s cultural heritage were visible in the symbolic layer of the predecessor to the European Union as the Charlemagne. Perchoc sees as the Carolingian king’s high popularity “because he appeared to be German to the Germans and French to the French” and “his empire also very much encompassed the regions that eventually united into the ECSC [European Community of Steel and Coal],” embodying “a particular cultural memory of Europe, disconnected from the ongoing process of integration through the EU” (Perchoc 2017).

This article was aimed at presenting different approaches to the Carolingian metaphor in the European context. Based on discourses available in the public sphere, it has been shown that the character of Charlemagne may induce strong emotional effects as well as cognitive reactions leading towards peaceful European unity, in terms of Gerner’s dichotomy between the Carolingian and the Arthurian. The Carolingian metaphor is also, as shown, the object of ironic reactions among critics of the European project. It makes this metaphor a well-established imaginative category, which should be treated as an indicator of changes in the forthcoming phases of the integration process in Europe. The Carolingian myth dominates Europe’s integration discourse, although the Arthurian myth could bring a unique perspective, and the process of European integration is deeply rooted in the acquis mythologique communautaire, which includes both symbols, myths and memory, making them an important part of European identity construction. Thus, further research into the potential of Arthurian myth in the context of European integration is worthwhile.

Piotr Toczyski – PhD, a head of a department at Maria Grzegorzewska University. For several years he was associated with the European Studies Unit of the IFiS PAN, where he conducted doctoral research on the Europeanisation of culture. He has given several lectures at the International Congress on Medieval Studies (Western Michigan University), International Arthurian Society, International Society for the Study of Medievalism. He published books How does myth unite Europe? (Collegium Civitas, 2013) and Silver digital content” (APS, 2023), as well as articles on Europeanisation in education based on the example of Europa-Kontakt. He co-chaired several consortia in EC programs strengthening the European Health Union and public policies in eight EU countries (3rd Health Programme, EU4Health). He popularises knowledge about Europe on behalf of Team Europe Direct.

Piotr Toczyski – doktor, kieruje zakładem w Akademii Pedagogiki Specjalnej im. Marii Grzegorzewskiej w Warszawie. Przez kilka lat był związany z Zespołem Studiów Europejskich IFiS PAN, gdzie prowadził badania doktorskie nad europeizacją kultury. Wygłosił kilka referatów podczas zjazdów International Congress on Medieval Studies w Western Michigan University, International Arthurian Society, International Society for the Study of Medievalism. Jest autorem książek: Jak mit jednoczy Europę? (Collegium Civitas, 2013), Srebrne treści cyfrowe (APS, 2023) oraz artykułów poświęconych europeizacji w edukacji na przykładzie przedsięwzięcia Europa-Kontakt. Współtworzył kilka konsorcjów w programach Komisji Europejskiej wzmacniających Europejską Unię Zdrowotną i polityki publiczne w ośmiu krajach UE (Trzeci Program dla Zdrowia, EU4Health). Popularyzuje wiedzę o Europie z ramienia Team Europe Direct.

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1 As he writes, “the first figures used in the European narrative were distant figures and historical events” adapted by European institutions as the elements of the European narrative and historiography: “...invoking more distant figures in the post-war years such as Charlemagne and turning to recent history only when the topic became less sensitive in some member states, such as Germany and Italy. Charlemagne’s figure was widely used in the 1950s (Larat 2006), because his empire encompassed the member states of the European Coal and Steel Community (ECSC). The so-called ‘founding fathers’ of European integration are celebrated by the European institutions [...]. Many European programmes bear the names of either pre-EU figures (Erasmus, Comenius, Corvinus, Marie Curie) or founding fathers, for example the Schuman programme for interns at the European Parliament (EP) or the European Commission Jean Monnet programme for European studies” (Perchoc 2017: p. 369).

Gerner explains it the following way: “The EU as an actor is an abstraction and in spite of the use of mythological paraphernalia, nobody would consciously use the myths of Charlemagne and King Arthur as guides for action. Their importance lies in the fact that they colour perceptions and give a sense of meaning or even of destiny” (Gerner 1999: p. 61). Charlemagne “was a real historical actor, who was subsequently mythologized, whereas the latter [King Arthur] first emerged as a mythical hero in legends and tales, only subsequently to be traced back to a presumed Celtic king of early medieval Britain. In his introduction to Einhard and Notker the Stammerer: Two Lives of Charlemagne, Lewis Thorpe is keen to make this distinction between the two heroes, lest also Charlemagne too should be relegated to the mythical sphere” (Gerner 1999: p. 43).

A substantial portion of the analysis constitutes a revised and expanded iteration of the presentation delivered at the 44th International Congress on Medieval Studies in Kalamazoo in 2009. This presentation, titled Carolingian References in the Europeanization Process, was presented within the session What, in the World, is Medievalism?, sponsored by the International Society for the Study of Medievalism and chaired by Richard Utz (Toczyski 2009). The presentation, funded with the Otto Gründler Travel Award, attracted the attention of Italian scholar Tommaso di Carpegna Falconieri, who attended the session. Subsequently, he referenced the working paper in his 2011 publication Medioevo Militante, giving due acknowledgment to both the paper and some of the sources researched (di Carpegna Falconieri 2011). In turn, this section extends gratitude for di Carpegna Falconieri’s noteworthy contribution to the field, particularly in his Medioevo Militante chapter on medievalism and European integration, which represents a further development of the ideas we had the privilege to exchange. Hereby his recent English-language extended version of the book titled Militant Middle Ages, wherein he explores the Middle Ages as a pivotal era in the context of contemporary discourse, will be referenced.

4 The question asked by Falconieri is fundamental for understanding Europe’s cultural and political space: “But in which cultural legacy should Europeans recognise themselves? The possibilities are, naturally, endless. For example, the founding role of the Romans has been highlighted, or vice-versa, as we have seen, that of the Celts and the Arthurian myth, or else that of philosophy in general and above all the Enlightenment, or better yet the Law, whether “common law” or Roman codes. Even Romanticism, despite being the architect of nationalisms, is assigned a relevant role in the construction of European identity: one need only recall Guizot, the author of The History of Civilization in Europe. The Brothers Grimm themselves, aside from being fathers of the German nation, can be considered among the earliest unifiers of Europe. The desire to affirm common, Christian roots is the one that has provoked the most heated political debate in the present day” (di Carpegna Falconieri 2019: p. 198).

5 In the letter he wrote: “Charlemagne’s empire is to be resurrected as the continental Third Power under Frankish leadership. Though it occupies only a small part of Europe, that is the name it has chosen, arousing as it does delusions of grandeur and inspiring awe in American voters unversed in geography. It is, however, worthwhile examining how realistic this dream is. Charlemagne’s empire came into being in a world of religious unity. With the exception of remote countries in the East, there were no other powers in the known world. […] Charlemagne’s prospective empire would enjoy hardly any crude oil resources on European territory. […] People say Europe but what they really mean is coal. ‘Our policy’, as Schuman went on to say, ‘is not based on sentiment. It is firm and far-sighted.’ That’s what Charlemagne’s idyllic empire looks like” (von Hentig 1952).

6 Giscard d’Estaign said: “In awarding me this Charlemagne prize, you have caused me to feel an intense emotion and happiness. You have made of me a distant and humble disciple of Charlemagne. I say ‘distant’, because it is some 1200 years since he took on – in the manner of his time – the creation of a European Empire. And ‘humble’, because the task I am now charged with is simply to draft a lasting blueprint for Europe! It is a task that Charlemagne would have had some trouble in carrying out, since it appears that he failed to master the art of writing, although his extraordinary energy and his skill at arms enabled him to assemble a collection of territories in which Europe could already be seen in outline. The emotion stems from a childhood memory. The legend, by which the figure of Charles the Great was transformed and enhanced, gradually made him into a saint. In recollection of the quotation from his capitularies where he says that ‘every father of a family must send his son to school, until such time as he is properly educated’, it was a tradition in the schools and colleges of the University of France to celebrate Saint Charlemagne’s day. On that day – 28th January, the anniversary of Charlemagne’s death – the schools would hold a feast for their most deserving pupils. I was invited only once, but, along with my classmates, how proud I was! [...] I am conscious of the responsibility that weighs upon our Convention: our task is to draw up – for the first time in the history of Europe – a pan-European Constitution. Our continent has seen successive attempts at unifying it: Caesar, Charlemagne and Napoleon, among others. The aim has been to unify it by force of arms, by the sword. We, for our part, seek to unify it by the pen. Will the pen succeed where the sword has finally failed? [...] Because Europe is more than just a cooperative of Member States, because people in our countries feel European too, and because sometimes our histories are inextricably intertwined: take Charlemagne himself, crowned in Rome, his eldest son reigned over Aquitaine – it was Charlemagne’s adviser, Alcuin of York, who reformed the monasteries of Touraine; that same Charlemagne is buried not a stone’s throw from here, while his father and mother, Pepin and Bertha, are buried in Saint-Denis, at the gates of Paris” (Giscard d’Estaing 2003: p. 1–6).

7 As this extract is not easily available, I decided to quote it in an extended version: “The book Roland’s European Paths has been published by Europe House Dubrovnik with the aim of highlighting the common roots of the united Europe. Like invisible threads, these roots linked for centuries different parts of the European continent despite their long-standing political separation. The beginnings of some of these threads go as far back as the 8th century – the period of the first real European ruler, Charlemagne, who laid the foundations for the united Europe. Roland, one of his most faithful knights, over the centuries became a symbol of justice, independence and freedom. Since the 15th century, his image on stone or wooden columns has adorned many European town centres. One of the most beautiful columns is that in Dubrovnik where, as in Italy, the knight’s name has been changed to Orlando.

The texts for the book Roland’s European Paths have been written by twelve experts in history, sociology, literature and law from different European countries. In order to further illustrate the European component of this book, all the texts have been translated into Croatian, English, German, French and Italian. The book is illustrated by 350 photographs of landscapes, through which the real Roland – Orlando moved, as well as all the extant Roland columns from Riga to Dubrovnik. Roland is believed to have been the nephew of the famous emperor Charlemagne and to have died a heroic death on 15th August 778 in Roncesvalles, a gorge in the Pyrenees. Pilgrims on their way to one of the most important European centres of pilgrimage, Santiago de Compostela, spread the oral tradition about the fearless knight throughout Europe. Several centuries after his death, Roland became the hero of one of the most famous medieval epics, the Song of Roland, which inspired numerous writers and story-tellers throughout Europe. In Italy, due to the linguistic particularities of the Apennine Peninsula, Roland becomes Orlando.

As one of the most faithful of Charlemagne’s knights, over the centuries Roland was in Germany assigned the role of keeper of the imperial rights, by which the power of the feudal lords was restricted. First Roland’s columns as symbols of protection and the guarantee of imperial rights appeared in the first half of the 14th century precisely in German towns. As a model for those columns, master-builders used paintings and statues of Roland from French churches, as in his native France in that period the knight was honoured among the common people as a saint who had died a martyr’s death. The oldest preserved column was erected in 1404 in Bremen. One of the stops on Roland’s European ‘journey’ was Dubrovnik, which took over the Italian version of the knight’s name. Orlando’s column was put up in Dubrovnik as early as 1419. As a symbol of freedom and state independence, he was granted a central position in the public life of the Republic of Dubrovnik. Orlando is a symbol of freedom even today, and on top of his column during the Dubrovnik Summer Festival, a flag waves proudly wearing the inscription LIBERTAS. After the recent enlargement of the European Union, the Dubrovnik Orlando is the only one that has remained outside its borders. Europe House Dubrovnik, through its multimedia project Roland’s European Paths, is linking up various aspects of reverence for Roland throughout Europe from 8th to 21st century, with the aim of pointing out in a new way the importance of Dubrovnik in the common history of Europe” (Europski Dom Dubrovnik 2009).

Received: 10.02.2023. Accepted: 13.02.2025.

Przegląd Europejski – European Studies Quarterly, ISSN: 1641-2478

vol. 2025, no. 1

Copyright © by Magdalena Marynowska, 2025

Creative Commons Attribution 4.0 (CC BY 4.0)

http://creativecommons.org/licenses/by/4.0/

DOI: https://doi.org/10.31338/1641-2478pe.1.25.8

Balancing judicial apoliticism and the right to freedom of speech – a critical analysis of ECHR Judgement no. 16915/21

Magdalena Marynowska, University of Warsaw (Warsaw, Poland)

E-mail: m.marynowska@student.uw.edu.pl

https://orcid.org/0009-0001-5735-5510

Abstract

In recent years, the issue of judges’ freedom of expression in the context of their independence and role in a democratic state has attracted increasing interest from scholars and legal practitioners. Referring to the ongoing discussion in the literature, this article analyses the boundaries of this freedom, drawing on the jurisprudence of the European Court of Human Rights, with particular emphasis on the case of Danileţ v. Romania. The aim of this article is to examine the boundaries of judges’ freedom of expression within the framework of a democratic state governed by the rule of law. The study combines literature review, analysis of legal frameworks as well as critical doctrinal analysis to comprehensively analyse the ECHR’s position in relation to legal norms and relevant literature. A critical assessment of the impact of these rulings on the redefinition of the relationship between judicial independence and judges’ right to participate in public debate is conducted.

Keywords: judicial freedom of expression, European Court of Human Rights, proportionality principle, judicial independence

Równowaga pomiędzy apolitycznością sędziów a prawem do wolności słowa – krytyczna analiza wyroku ETPCz nr 16915/21

Streszczenie

W ostatnich latach kwestia wolności wypowiedzi sędziów w kontekście ich niezależności oraz roli w państwie demokratycznym wzbudziła duże zainteresowanie badaczy i praktyków prawa. W nawiązaniu do dyskusji obecnej w literaturze, niniejszy artykuł analizuje granice tej wolności, odwołując się do orzecznictwa Europejskiego Trybunału Praw Człowieka, ze szczególnym uwzględnieniem sprawy Danileţ przeciwko Rumunii. Celem tego artykułu jest zbadanie granic wolności wypowiedzi sędziów w ramach demokratycznego państwa prawa. Badanie łączy przegląd literatury, analizę ram prawnych, a także krytyczną analizę doktrynalną, aby kompleksowo przeanalizować stanowisko ETPCz w odniesieniu do norm prawnych i odpowiedniej literatury. Przeprowadzono krytyczną ocenę wpływu tych wyroków na redefinicję relacji między niezależnością sądownictwa a prawem sędziów do uczestnictwa w debacie publicznej.

Słowa kluczowe: wolność wypowiedzi sędziów, Europejski Trybunał Praw Człowieka, zasada proporcjonalności, niezależność sądownictwa

The aim of the article, theses, and research methods

The primary aim of this article is to explore the intricate boundaries of judges’ freedom of expression within the context of a democratic state governed by the rule of law. Drawing upon an extensive review of the literature and a critical doctrinal analysis, the study seeks to offer a comprehensive assessment of the European Court of Human Rights’ jurisprudence on the matter, contextualised within relevant legal norms and scholarly discourse.

The analysis is centred around two pivotal theses. The first is that freedom of expression, as a fundamental right protected under Article 10 of the European Convention on Human Rights, also applies to judges, allowing them to participate in public debate concerning the functioning of state institutions. The second is that the obligation of judicial apoliticism does not exclude judges’ right to freely express opinions on public matters, provided that these statements fall within the scope of Convention-protected freedom of speech.

Through these perspectives, the article aims to critically assess how these principles are interpreted in the context of European Court of Human Rights jurisprudence and to evaluate their implications for judicial independence and the rule of law.

Introduction – factual background

In January 2019, Romanian judge Vasilică-Cristi Danileţ published two messages posted on social media, criticising the judiciary and public institutions in Romania.1 At the moment, his Facebook profile had around 50.000 followers, which elevated his status to that of a public figure.

The Superior Council of Magistracy, which is the highest judicial authority in Romania, alleged that his first message undermined public institutions’ credibility, suggested „that they were controlled by the political class”, and proposed military intervention to ensure constitutional democracy, thereby breaching his duty of restraint and tarnishing the judiciary’s reputation. The disciplinary board alleged that the language used by the judge in the posted message „had overstepped the limits of decency and had been unworthy of a judge” (European Court of Human Rights 2024a: p. 1–2).

The applicant clarified that his first posted message was intended to engage readers in a public debate on a critical societal issue. He emphasised that the message was not a call to disregard the law but a reminder of existing legal provisions. He also noted that the content was unrelated to his judicial duties and reflected his personal concerns as a citizen. Regarding the second message, the applicant affirmed his support for judicial independence and any related initiatives. He argued that freedom of expression allowed him to post on his Facebook page as long as he did not make any statements strictly criticising the judiciary, such as insulting other judges (Gioroceanu 2024).

The position of the European Court of Human Rights

In its judgement, the European Court of Human Rights indicated that the Romanian authorities failed to recognise that a balance needed to be struck between the conflicting Convention rights at play. Judges are indeed obliged to exercise restraint due to the requirement of political neutrality, however, they also possess fundamental Convention rights that apply to every individual (Warecka 2024).

The European Court of Human Rights found that the first posted message did indeed criticise the political influences affecting certain state institutions, including the army and judiciary. However, the applicant referred to Romanian constitutional provisions, according to which the army was subject to the will of the people. As clarified by the Court: „Through the use of rhetorical questions, he invited his readers to imagine the army acting against the will of the people, someday, under the pretext of protecting democracy; in his view, this was a mere detail behind which lay a more serious problem” (European Court of Human Rights 2024a: p. 2).

The applicant’s position, therefore, amounted to an assessment that constitutional democracy would be at risk if public authorities were to come back under political control. The posted message was closely related to a matter of public interest – maintaining the independence of public institutions. The second comment addressed not only a public interest issue but also a matter of personal concern for the applicant, as it directly related to legislative reforms that were expected to bring changes to the judiciary system.

The Court, after analysing the judge’s social media posts, ruled that any interference with freedom of expression must be assessed with the narrowest margin of appreciation. It found that the Romanian courts failed to adhere to the principle of proportionality, noting that judges are expected to exercise restraint in their speech to uphold judicial authority and impartiality. However, in this case, the statements were neither unlawful, hateful, nor inciting violence. The European Court of Human Rights also criticised the Romanian courts for imposing a disproportionate sanction, such as dismissal, instead of a milder option (e.g. a reprimand), which likely discouraged public debate on important reforms (European Court of Human Rights 2024a: p. 3).

The disciplinary commission’s decision, which was upheld by the highest judicial body in Romania, lacked sufficient justification to demonstrate that the questioned social media posts violated the dignity and honour of the judiciary. Furthermore, in its judgement, the Court found that the national courts did not adequately consider the broader context of the applicant’s statements, which were made as part of a public debate on a matter of public interest. In their ruling, the national courts failed to assign proper importance to the freedom of expression (European Court of Human Rights 2024a: p. 1).

Freedom of speech and its limits – an analysis of the legal framework concerning possible restrictions

Protecting human rights, particularly freedom of expression, is a cornerstone of both international law and the national legal systems of democratic states. Recognised in international legal instruments and enshrined in many domestic legal frameworks, any restriction on fundamental rights must be clearly defined by statutory law and meet the principles of proportionality, legality and necessity. As Richard Moon wrote, “Freedom of expression, like other important rights, is supported by a number of overlapping justifications” (Moon 2000: p. 8) highlighting its role in the pursuit of truth, the promotion of individual autonomy, the functioning of democracy, and the fostering of social progress.

Article 10 of the European Convention on Human Rights undeniably serves as a fundamental safeguard of freedom of expression, ensuring that individuals can freely receive and disseminate information and ideas. In the context of international law, Article 10 plays a pivotal role in balancing individual freedoms and state interests, particularly in democratic societies where open discourse and access to information are essential for accountability and the protection of other human rights (see: European Convention on Human Rights 1950). However, it is important to highlight that in international law the issue of limiting freedom of expression is addressed not only by the European Convention on Human Rights. For instance, article 19 (3) of International Covenant on Civil and Political Rights states that the freedom of expression shall only be limited due to necessary reasons provided by statutory law and establishes a closed catalogue of permissible limitations, confirming the mentioned observation (United Nations 1966: art. 19(3)). Similar stance may be observed in article 29(2), in conjunction with article 19 of the Universal Declaration of Human Rights. While article 19 regulates the right to freedom of expression, article 29(2) outlines that the limitations on human rights „are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society” (United Nations 1948: art. 29 (2)). Such legislations confirm the valid role of applying the proportionality rule in interpretation of each limitation on human rights in order to prevent excessive interference with democratic discourse.

Moreover, while signatories of the European Convention on Human Rights are required to meet a minimum standard of protecting fundamental rights, they are free to adjust these protections in national legal systems and expand them. For instance, when it comes to European Union, article 52 (3) of Charter of Fundamental Rights of the European Union states that the guaranteed rights align with those safeguarded by the Convention for the Protection of Human Rights and Fundamental Freedoms, however, Union law is not precluded from granting broader protection (Charter of Fundamental Rights of the European Union 2007). The norms are also not directly applied, meaning it may take a different form or be expressed in an alternative manner. As a result, constitutional law provisions may vary between countries.

In order to illustrate how law provisions concerning this issue have been implemented in different legal systems, a comparative analysis of national law in Poland, Hungary and Romania has been conducted. The selection of states was based not only on their shared legal obligations under the European Convention on Human Rights and EU law, but also on the necessity of examining relevant jurisprudence. In particular, the cases of Żurek v. Poland, Baka v. Hungary, and Danileţ v. Romania constitute essential reference points for the doctrinal and case-law analysis developed in this article.

Against this background, the constitutional framework of Poland provides a clear example. According to article 54 (1) of The Constitution of the Republic of Poland, each person has the right to freedom of conveying one’s opinions and obtaining and sharing information. General regulation of limitations are presented in article 31(3) of the act, incorporating the principle of proportionality into the legal system: „Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute, and only when necessary in a democratic state for the protection of its security or public order, or to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such limitations shall not violate the essence of freedoms and rights” (The Constitution of the Republic of Poland 1997: art. 31(3)).

Concerning Hungary, article I (1) of Fundamental Law of Hungary acknowledges that „fundamental rights of man must be respected”, and the state bears the primary responsibility for their protection. The next paragraphs of the specified article illustrate the protection of human rights by proclaiming that „the rules for fundamental rights and obligations shall be laid down in an Act”, whereas restrictions are permissible solely „to allow the effective use of another fundamental right or to protect a constitutional value, to the extent absolutely necessary, proportionate to the objective pursued and with full respect for the essential content of that fundamental right.” (The Fundamental Law of Hungary 2011: art. I (3)).

In both of the aforementioned cases, the national law indicates that the limitations must be established in statutory law.

In reference to romanian law, according to article 20 (1) of The Constitution of Romania: „Constitutional provisions concerning the citizens’ rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and the other treaties Romania is a party to.” Moreover, according to article 30 of the act quoted above, the freedom of expression shall be inviolable and the only limitation may take place if it violates „the dignity, honour, privacy of a person, and to the right to one’s own image” (The Constitution of Romania 1991: art. 30(6)). Therefore, applying both the linguistic and systemic interpretation, it becomes evident that the Romanian courts were obligated, not only by international law, but also by national law, to apply the principle of proportionality in Danileţ’s case.

The primacy of judge’s freedom of expression in the context of public debate – a critical analysis of European jurisprudence

Judges, as integral members of society, hold a unique position that makes their participation in public debate both desirable and significant. Their authority in matters of legal knowledge, as well as the dignity of their office, places them at the meeting point of public discourse and professional ethics. As Michał Laskowski states: „The issue of the limits of a judge’s freedom of expression is of interest both in the context of international regulations, the creators of professional ethics codes for judges, and Polish legislation [...]. Generally, it is accepted that a judge, as a citizen, has the right to freedom of speech just like any other individual, but due to their office, they are subject to certain restrictions when publicly expressing their views” (Laskowski 2023). This statement captures the delicate balance that democratic societies must navigate in determining how judges can participate in public debate – balancing their duty to remain impartial with their rights and responsibilities as citizens engaged in the life of the law and society.

As a general principle, freedom of expression must be assessed in light of the core principles that define the judicial role, including independence, impartiality, dignity and diligence (Sessa 2022). In this regard, impartiality is widely regarded as the essential foundation of ethical judicial conduct (Wendel 2008). In order to safeguard the credibility and independence of the judiciary, judges are traditionally expected to refrain from public or political commentary, particularly where it might compromise the perception of their neutrality. This expectation of self-restraint is deeply embedded in judicial ethics codes across jurisdictions and plays a central role in maintaining public confidence in the judiciary’s apolitical character.

However, the rationale for such restraint presumes the existence of a stable democratic order, in which institutional checks and balances are respected and upheld. In contexts marked by democratic regression or systemic threats to judicial independence, the paradigm shifts. Under such conditions, judicial silence may inadvertently facilitate authoritarian consolidation by masking institutional deterioration. In these situations the freedom of expression of judges assumes a qualitatively different function: it becomes not merely a residual civil liberty, but a mechanism of constitutional resistance and a form of institutional accountability.

Moreover, as Dominika Bychawska-Siniarska states: „Freedom to hold opinions is a prior condition of the other freedoms guaranteed by Article 10, and it enjoys an almost absolute protection in the sense that the possible restrictions set forth in paragraph 2 are inapplicable” (Bychawska-Siniarska 2017: p. 13).

In the context of the ECHR judgement in case of Danileţ v. Romania, the European Court of Human Rights stated that freedom of expression is a fundamental principle of a democratic society and any restrictions on it must be exceptionally justified. The principle of proportionality requires that any measures taken must align appropriately with their intended purpose (Michalska 2019). Additionally, the disciplinary sanctions imposed on the judge for publicly criticising state institutions violated Article 10 of the Convention, as they were not necessary in a democratic society and did not meet the proportionality requirement established in the ECHR’ 1976 judgement in case of Handyside v. the United Kingdom ( European Court of Human Rights 1976).

Furthermore, the court adapted a similar stance in case Baka v. Hungary. ECHR ruled that Article 10 guarantees strong protection for statements on matters of public interest, allowing minimal discretion for national authorities. As it emphasised, especially in the context of comments regarding the functioning of the judiciary (European Court of Human Rights 2016). According to attorney Marek Nowicki: „Even if one were to accept that the reasons cited by the government were significant, they could not be considered sufficient to demonstrate that the alleged interference was necessary in a democratic society…” (Nowicki 2017). Given the above, it is crucial to acknowledge that matters of significant public concern should be addressed by individuals with the appropriate expertise and authority.

The case of Żurek v. Poland further illustrates the application of Article 10 to judicial freedom of expression, as the removal of a judge from his role as spokesperson for the Cracow Regional Court, seemingly neutral, raised concerns of interference due to his criticism of judicial reforms. The ECHR highlighted that „the general right to freedom of expression of judges to address matters concerning the functioning of the justice system may be transformed into a corresponding duty to speak out in defence of the rule of law and judicial independence when those fundamental values come under threat” (European Court of Human Rights 2022: p. 1, 55).

Regarding the European Union, all Member States are also signatories to the European Convention on Human Rights. Furthermore, according to article 6 (3) of the Treaty on European Union: „Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law” (TEU: art. 6(3)). Therefore, the values upheld by the Convention must be respected and safeguarded by all parties involved.

While the ECHR focuses directly on judges’ freedom of expression, the jurisprudence of the CJEU, particularly in case of the Polish Disciplinary Chamber, highlights how disciplinary measures may undermine judicial independence and indirectly restrict judges’ ability to express their opinions freely. For instance, in case of European Commission v. Poland (C-791/19), the CJEU examined Poland’s disciplinary regime for judges (see: Judgment of the Court 2021).

In 2017, the Polish parliament, dominated by one political party, introduced a Disciplinary Chamber in the Supreme Court. One of the allegations raised by the Commission at the time was the issue of holding judges accountable based on the content of their rulings. The CJEU ruled that provisions allowing the content of judicial decisions to serve as grounds for disciplinary liability violate the principle of judicial independence. Even though the CJEU did not specifically mention the right to freedom of speech, it is evident that a clear connection exists between freedom of speech and the freedom to adjudicate. (CJEU 2021) In the context of judges’ freedom of expression, this indicates that the disciplinary system cannot be used to restrict the freedom to adjudicate or to exert pressure on judges through the threat of sanctions for the content of their rulings.

Judicial impartiality and the rule of law crisis

The issue of judges’ freedom of expression is a persistent point of tension in liberal democracies, and its significance grows depending on the context in which it is framed (Jabłoński et al. 2023). Current debates consider whether, during a rule of law crisis, such as the erosion of the separation of powers, restrictions on judges’ freedom of expression should be adjusted.

Political power often positions itself as the authority responsible for identifying issues within the judiciary and proposing solutions, which extends to influencing judges’ freedom of expression (Jabłoński et al. 2023). It is argued that the limits of judicial expression should include the possibility that judges may have both the right and the duty to speak out publicly in defence of the rule of law, when circumstances demand it (Laskowski 2023). As Anna Machnikowska stated: „The passivity of judges within the framework defined by evaluation mechanisms, procedures for filling vacant positions, and the appellate review system does not contribute to the public’s recognition of the values that genuinely shape the quality of contemporary justice” (Machnikowska 2018). Given this, one must question whether judicial passivity is not only undesirable but potentially socially harmful in a democratic society.

Moreover, as the ECHR stated in several cases, such actions by national courts undoubtedly have a chilling effect on judges, discouraging them from participating in public debate or speaking out on important matters concerning the judicial system (Pech 2021). While democracies aim to protect freedom of speech, the reality often diverges, with fear undermining open dialogue. Judges, essential to upholding the rule of law, should be able to engage in debates without fear of sanctions (Fajdiga, Zagorc 2023).

Conclusions

In debate concerning the limits of one’s freedom of expression, the dilemma of defining the boundaries of this freedom regarding judges, still lies at the crossroads of balancing conflicting legal norms. However, it is important to emphasise the role of ethical principles that underpin their professional conduct. On the one hand, the law imposes on judges a duty of restraint and neutrality, aimed at maintaining public trust in the impartiality and objectivity of the judiciary. On the other hand, a judge’s freedom of expression, as a citizen of a democratic state, should not be unjustifiably restricted, particularly when their statements address issues critical to the functioning of state institutions and the defence of the rule of law.

While judge Danileţ’ statements were critical of state institutions, they remained within the bounds of permissible public debate and did not breach any legal or ethical standards. The measures taken were neither necessary nor proportional, as clearly demonstrated by the fact that the sanction was excessively severe and disproportionate. Given the above, it is possible to confidently determine that the Romanian courts did not apply the proportionality test, failing to uphold fundamental principles.

The thorough examination of international law compared with European Court of Human Rights’ jurisprudence and relevant doctrinal literature, highlights the importance of proportionality rule in applying any restriction of human rights. Judges, as integral part of civil society, should be able to freely express opinions on public matters, provided that these statements fall within the scope of Convention-protected freedom of speech. The restrictions are justified only when there is a genuine threat to the dignity of the judiciary or public order, and the measures taken are proportional to achieving this aim. Otherwise, there is a risk of violating Article 10 of the European Convention on Human Rights and curtailing the space for constructive public debate, which forms the foundation of a democratic society.

Furthermore, the judge’s expertise in legal matters not only grants them the right to freedom of expression but, when fundamental values such as the rule of law and judicial independence are under threat, transforms this right into a duty to speak out in their defence. Safeguarding democratic values requires ensuring that judges are not silenced through disproportionate sanctions, as such actions diminish the judiciary’s capacity to engage in public debates on critical societal issues. The analysis emphatically shows that freedom of expression does apply to judges, allowing them to participate in public debate concerning the functioning of state institutions. Moreover, the analysis successfully verifies its two key theses.

This article has achieved its objective by critically examining the boundaries of judges’ freedom of expression through the lens of European Court of Human Rights jurisprudence, demonstrating how legal principles and doctrinal analysis support a balanced approach that upholds both judicial independence and democratic public debate.

Magdalena Marynowska – Law and International Relations student at the University of Warsaw, planning to pursue a doctoral degree. Her academic interests are focused on European law, contract law, and international commercial law. Beyond her studies, she is passionate about promoting legal literacy and fostering international dialogue on contemporary legal challenges.

Magdalena Marynowska – studentka prawa i stosunków międzynarodowych na Uniwersytecie Warszawskim, planująca podjęcie studiów doktoranckich. Jej zainteresowania naukowe koncentrują się na prawie europejskim, prawie umów i prawie handlu międzynarodowego. Poza studiami pasjonuje się promowaniem znajomości prawa i wspieraniem międzynarodowego dialogu na temat współczesnych wyzwań prawnych.

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1 One of these statements, dated 9 January 2019, was the following: “You might have noticed the string of efforts to attack, disrupt and discredit institutions such as the Directorate General of Information and Internal Protection, the Romanian Intelligence Service, the police, the National Anti-Corruption Directorate, the gendarmerie, the High Court of Cassation and Justice’s Public Prosecutor’s Office, the High Court of Cassation and Justice and the army. [The attacks in question] didn’t just happen randomly after ‘the abuses committed by the powers that be’. Do people realise what it would mean to weaken [these] institutions or, worse, to bring services, the police, the courts and the army back under political control? And speaking of the army, have you ever given much thought to Article 118 § 1 of the Constitution, which provides that ‘the army shall solely serve the will of the people in order to ensure... constitutional democracy’? What would happen if one day you happened to see the army on the streets defending... democracy, because support appears to be waning these days? Would you be surprised to know that this solution would be... constitutional?! I think we can’t see the wood for the trees...” (European Court of Human Rights 2024b: p. 2).

On 10 January 2019, in the second Facebook post, the judge shared a hyperlink to a controversial article entitled A prosecutor sounds the alarm. Living in Romania today represents a huge risk. The red line has been crossed when it comes to the judiciary, and in comment he praised a prosecutor for speaking out on political issues: “Now here’s a prosecutor with some blood in his veins, speaking his mind about dangerous prisoners being freed, our leaders’ bad ideas on legislative reform, and judges and prosecutors being lynched!” (European Court of Human Rights 2024b: p. 2).

Received: 26.12.2024. Accepted: 20.05.2025.