Judicial facts memorized in law – the story of the Hague tribunal

Vučić, Mihajlo (2025) Judicial facts memorized in law – the story of the Hague tribunal. In: Memory Laws and the Politics of History. Semper Publising House, Warszawa, pp. 139-160. ISBN 978-83-7507-341-6

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Abstract

The idea of the research is to provide an analysis of a certain type of memory laws in the region of the Western Balkans that prohibit the denial of historical crimes. The criminal codes of Serbia, Montenegro, Bosnia and Herzegovina, Macedonia and the territory of Kosovo offer several variations of the crime of negationism – denial, minimization, or condonation of crimes of genocide, war crimes or crimes against humanity. There are three interrelated factors that make these countries interesting for a comparative research of this kind. First is that they share a past full of atrocities committed on all sides, not only from the two world wars but from the more recent civil wars in the aftermath of the breakup of socialist Yugoslavia, a state that once incorporated all these successors. Combined with a lack of any commonly accepted history by national academia or political elites, there are plenty of opportunities for various interpretations of the same events by both benevolent and malign actors. Second factor which contributes to historical misunderstandings is the controversial role of the International Criminal Tribunal for former Yugoslavia, constituted ad hoc by the United Nations Security Council Resolution while the civil wars were still raging. Although the Tribunal gave legal qualifications of all the important atrocities that occured during the civil wars, the most famous probably being the crime of genocide in the municipality of Srebrenica, it was never fully accepted in its legitimacy and impartiality by political elites and common people of the region. The official history of crimes of the Yugoslav civil wars, written in its judgments, was nevertheless incorporated into some of these criminal codes. The third factor lies in the prerequisites of the EU membership process. The formal aspiration of all these countries to align themselves with the EU legislation in this field, resulting in the implementation of the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. Thus, the denial, minimization or condonation of crimes of the common Western Balkans past has been put into context of spreading hatred and xenophobia among its peoples. The author’s hypothesis is that taken together, these three factors make the original idea of the memory laws in conflict ridden societies – to bring stability, conciliation and some redress for victims – difficult to implement in the specific Western Balkans context, and can even lead to further social polarization in its multiethnic societies and greater instability in inter-state relations.

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