Oggi è arrivata una bella notizia per chi crede nella libertà di manifestazione del pensiero e, più in generale, la garanzia dei diritti fondamentali. Infatti, dopo ben 22 mesi di custodia “cautelare” è stato liberato Patrick Zaki. Bologna lo aspetta a braccia aperte.
Professor Justin Orlando Frosini, Direttore del Center for Constitutional Studies and Democratic Development
Giuseppina Scala isPostdoctoral Research Fellow in Comparative Public Law at the Department of Political Sciences, Legal and International Studies, University of Padua (Italy); Affiliate Research Fellow at the Center for Constitutional Studies and Democratic Development, Bologna (Italy); Academic Fellow at Bocconi University, Milan (Italy). As Affiliate Research Fellow at the Center for Constitutional Studies and Democratic Development, Dr Scala is in charge of the spin-off project “Legal Reforms in Nordic Constitutionalism: the Challenges of a State-religion” within the main research field “Constitutionalism in Illiberal Democracies”. At Bocconi University, she has been teaching several modules on Law and Religion within the module “Comparative Public Law”.
The case of Magdalena Andersson is exeptional for two reasons. First, because she is the first female prime minister elected in the Kingdom of Sweden replacing Stefan Löfven; secondly because she has been elected twice in few days a hundred years after Swedish woman were given the vote.
Magdalena Andersson is 54 years old, she started her political career in 1996 as adviser to the then prime minister Goran Persson finally spending the past seven years as finance minister in the Stefan Löfven government. She is the leader of the Social Democratic Party of Sweden where she now serves as the first female prime minister after 33 men. So, as of November 2021, four out of five prime ministers in Scadinavia are women. In fact, at the moment, the other three prime ministers are: Mette Frederiksen (Denmark), Katrín Jakobsdóttir (Iceland) and Sanna Marin (Finland). Only in the kingdom of Norway a male represents the office as prime minister: he is the Labour leader Jonas Gahr Støre. The latter replaced a woman: Erna Solberg of the Conservative Party, who led the country over the last eight years. So, with the new office of Magdalena Andersson, the Nordic countries confirm their position as the leading legal orders in the field of gender equality between women and men. In these countries, the representation of women in political institutions is strongly high and theglobal gender gap index of 2021 shows how Iceland, Norway, Finland and Sweden are characterized by the most gender equal conditions in the field of economics, politics and education.
Magdalena Andersson has been elected prime minister for the first time on November 24th 2021 with 117 voting in favour, 174 against and 57 abstained. This could happen because the Swedish Constitution provides that for the election of the office of prime minister he or she needs only the majority of MPs not to vote against. Art. 4, Chapter 5 of the Regeringsformen (The Instrument of the Government) affirms that if more than half the members of the Swedish parliament (Riksdag) vote against the Speaker’s proposal for a new prime minister (that is at least 175 members), it is rejected; in any other case, the proposal is adopted. This means that Magdalena Andersson won the election by a single vote. However, after just few hours of her appointment, she resigned when her coalition partner (the Green Party) decided to quit the government because the budget was drafted with the anti-immigrant far right. In fact, in Sweden, as a consequence of a constitutional practice the prime minister is expected to resign if a coalition party leaves government.She then informed Anderas Norlen to be still interested on guiding a one-party government. This morning, MPs backed Magdalena Andersson by a new vote with 101 voting in favour, 75 abstained and 173 against.
The Swedish prime minister will hardly pass legislation without her historiacal political partner but she can prove her skilfulness from tomorrow, after a meeting at Royal Palace with the King Carl Gustaf XVI, to September next year when new general elections are scheduled.
 As for Scandinavia, we refere here to the Nordic countries consisting of Norway, Sweden, Denmark, Finland and Iceland.
 The Regeringsformen of 1974is one of the four Swedish Fundamental Laws. The other three Fundamental laws are: the Freedom of the Press Act (Tryckfrihetsförordningen) of 1949; the Freedom of Speech Act (Yttrandefrihetsgrundlagen) of 1991; and the Act of Succession of 1809.
Lauren is a first year MAIR student at Johns Hopkins SAIS working as a Research Assistant at the CCSDD. Lauren is from Topeka, Kansas. She graduated from Kansas State University in 2021 with a BA, double majoring in Economics and International Studies and minoring in Russian.
Lauren began her studies of Russian and the former Soviet Union in 2016 when she studied in Kirov, Russia on the National Security Language Initiative for Youth. Then, during her time at Kansas State, received a Critical Language Scholarship to study Russian in Bishkek, Kyrgyzstan. Studying in Kyrgyzstan is what sparked her interest in the development of the former Soviet Union region. She is particularly interested in how the individual states in the region transitioned – or not – towards democracy.
MaameEkua Ampem, Research Assistant
Maame is a Political Science and Chinese language graduate from the University of Ghana, currently enrolled in the Master of Arts International Relations program at SAIS, interested in Chinese Politics and Development in Sub-Saharan Africa.
She graduated from the University of Ghana in 2018 with a double major in Political Science and Chinese. She also studied Chinese Language and Culture at the Zhejiang University of Technology in China for an academic year. After graduating from the University of Ghana in 2018, Maame worked as a Teaching and Administrative Assistant at the University’s Department of Political Science for one year. She worked with two Chinese companies in Ghana as a bilingual Assistant.
Maame aspires to be a Policy Analyst and Advisor, and she is currently assisting at the CCSDD with Research on Ghana and other African countries by extension.
Marin Lovejoy Christensen, Research Assistant
Marin is an MEPP candidate (Masters of European Public Policy) at Johns Hopkins SAIS from Portland, Oregon. She will be assisting in research on Central and Eastern Europe surrounding constitutions and judicial affairs. Marin graduated from George Washington University in Washington D.C. this past Spring with a Bachelor’s of Arts in Political Science, History, and Public Health.
While attending GWU, Marin chose to study abroad at Charles University in Prague, Czech Republic, where she developed her interest in Central and Eastern Europe. During her time in Washington, Marin worked within the U.S. Congress, Homeland Security, and several non-profit organizations focused on judicial advocacy.
At Johns Hopkins SAIS, Marin has chosen to specialize in the laws and institutions of the European Union and is excited to continue pursuing her interests at the CCSDD. Marin enjoys taking her black German Shepherd, Kenai, around Bologna and hunting down rare books in her personal time.
Timothy Feng, Research Assistant
Tim Feng is a first-year MAIR student at Johns Hopkins SAIS from Washington, D.C. He joins the CCSDD team as a Research Assistant.
Tim graduated from Pennsylvania State University in 2018 with a Bachelor of Arts in Political Science with minors in International Studies, Chinese, and History. He has also spent time studying in Xi’an, China, and Barcelona, Spain. Tim’s prior experience includes interning at the U.S. Army War College’s Peacekeeping and Stability Operations Institute, where he worked on research regarding post-conflict development in Liberia. After graduating, Tim joined the Peace Corps as an English Teacher Trainer. He moved to Nakhon Ratchasima, Thailand, in 2019 and devoted his time to teaching at local community schools within the region.
Drawing on his professional and academic background, he wishes to analyze how constitutions can help create or destroy democratic stability within different world regions. In his free time, Tim enjoys mixology.
Olivia Ingram, Research Assistant
Olivia is a first-year Masters of International Relations student at Johns Hopkins SAIS. She joins the CCSDD to research Ukrainian constitutionalism and decentralization. Her academic concentration is international development and democratization as related to Eastern Europe and Eurasia.
Olivia holds a Bachelor’s degree in Media and Journalism and International Studies from the University of North Carolina at Chapel Hill. Before her time at SAIS, she served as a community economic development volunteer with Peace Corps Ukraine. In the socio-economic development cabinet of a mayoral office in northeastern Ukraine, she and colleagues worked on understanding the potential local outcomes of national policy.
In addition to her home country, the United States, Olivia has studied and worked in the United Kingdom, China, Italy and Ukraine.
Yonatan Litwin, Communications Intern
Yonatan is a first-year MAIR student at Johns Hopkins SAIS concentrating in International Economics and Finance and Latin America. Yonatan assists the CCSDD’s internal and external communications.
Yonatan graduated from the University of Chicago with a Bachelor of Arts in Political Science in 2017. He worked at the Economist Intelligence Unit, where he worked in the Public Policy, Economics and Politics division that provides bespoke research projects for clients in the public and private sectors. Yonatan had also worked as a visiting researcher for Libertad y Desarrollo, a think tank based in Santiago, Chile, where he had helped produce policy memos on issues of public policy in Latin America. In 2019, he joined Altshuler Shaham, an asset management firm located in Tel Aviv, as an analyst focusing on regulatory risks in the US, Latin America, and Europe.
At SAIS, Yonatan plans on studying the political economy of financial markets, regulatory regimes, and infrastructure in emerging markets and developing countries–particularly in Latin America and Europe. Outside the classroom, Yonatan enjoys biking, crosswords, and exploring boutique stores in Bologna.
Julianna Rak, Research Assistant
Julianna is a first-year MAIA student at Johns Hopkins SAIS with interests in European and Eurasian studies and international law. Originally from Maryland, Julianna joined CCSDD as an intern assisting in research on Ukraine’s Constitutional Court and writing for the CCSDD blog.
Julianna graduated from Trinity University in 2020 with a Bachelor of Arts in Political Science and History. At the CCSDD, she hopes to further improve her research skills and acquire knowledge on the topics of constitutional law and democratization. Drawing from her academic background in international law and the social sciences, she hopes to learn more about the growing intersections between national constitutions and international governance. When not working or studying, she likes to spend time exploring Bologna’s food scene and traveling to other cities throughout Europe.
Yifang Wang, Research Assistant
Yifang is a first-year MAIR student at Johns Hopkins SAIS concentrating on Asia, Latin America and their respective processes of democratization. Originally from Hangzhou, China, he is joining the CCSDD team as a research assistant in the Fall of 2021.
Yifang graduated from Macau University of Science of Technology in 2021 with a BA degree in Portuguese Language and Literature, and a minor in Communications and Journalism. He worked as a Research Assistant for Intellisia Institute and Charhar Institute writing on social movements and constitutional crises. He also spent some time as an intern at the ASEAN-China Centre, facilitating and researching the topic of media cooperation. Aside from academics, Yifang is also interested in competitive debating and photography.
Carlee Wright, Research Assistant
Carlee Wright, from Norman, Oklahoma, is a first-year MAIA student working as a Research Assistant at the CCSDD. Carlee graduated from the University of Oklahoma with a BA in International Studies and Italian before moving to South Korea to work full-time with North Korean refugees.
At the CCSDD, Carlee is combining her work with her previous experience in the field. Currently, she is creating an exhaustive list of the South Korean Supreme Court’s judgements referencing its constitutional preamble, while quantifying how many times the ruling referenced it and analyzing how exactly the judgement used it. When not working or studying, she is likely updating her list of best gelaterias in Bologna.
Criminalizing genocide denial in Bosnia and Herzegovina
By Dr. Carna Pistan
Carna Pistan is a Marie Skłodowska-Curie Global Fellow at the Harriman Institute, Columbia University (US) and a Senior Researcher at the Institute for Comparative Federalism, Eurac Research (Italy).
On 23 July 2021 – only a few days before the end of his term – the former High Representative (HR) of Bosnia and Herzegovina (BiH), Valentin Inzko, has imposed a law, which bans genocide denial and the glorification of convicted war criminals. According to his official press release this was a response to BiH’s violent past and current political situation. In the ethnically rooted Bosnian war (1992-1995), the country was the scene of war crimes and crimes against humanity, which culminated in the Srebrenica genocide. Following the conflict, the Dayton Peace Agreement of 1995 split the country into two entities – the Bosniak-Croat Federation of Bosnia and Herzegovina and the Serb-majority Republika Srpska – a solution that ended the war, but also maintained and reinforced divisions along ethnic lines. Over the past twenty-six years, nationalist rhetoric denying war crimes, including the crime of genocide, and celebrating the perpetrators persisted in the public sphere. It even increased in recent years – a trend that represents a serious obstacle to lasting peace, stability, and reconciliation in the country.
In this scenario, the imposed legislation is important because it represents the first concrete attempt to fight against the culture of denial regarding the mass atrocities committed in the Bosnian war of the 1990s. The law, which is an amendment to BiH’s criminal code, has been enacted by the HR using his so-called Bonn powers, according to which the HR has the authority to adopt binding decisions and remove public officials in order to carry out his mission of overseeing the civilian implementation of the Dayton Peace Agreement. Considering that this special set of powers has not been used in the past decade to not interfere with BiH’s sovereignty, the imposed law seems to be even more relevant. The new denial ban in BiH represents a potentially powerful instrument to combat an alarming normalization of genocide denial, and a shameful glorification of war criminals. It is, however, unlikely that an internationally imposed memory law can contribute to reconciliation in a deeply divided society.
Breaking the wall of denial
Officially entitled “Decision on Enacting the Law on Amendment to the Criminal Code of Bosnia and Herzegovina” (No. 26/21), the imposed legislation can be ascribed to the category of punitive memory laws criminalizing the denial of the Holocaust and crimes against humanity. This type of legislation, which exists in most European countries, has often been criticized for imposing an official, state-approved interpretation of history, thus limiting the freedom of expression and historical research. Proponents of punitive memory laws, on the other hand, view them as a pre-emptive measure, which uses criminal law against racism, anti-semitism and xenophobia by prosecuting the incitement of violence or racial hatred.
In the case of BiH, the amendment changed Article 145a of the criminal code by introducing prison sentences from six months to five years for anyone who publicly condones, denies, grossly trivializes or tries to justify a crime of genocide, crimes against humanity or war crimes when three conditions are met: a) the crimes are established by a final adjudication of the International Military Tribunal, the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC), or a court in BiH; b) the offense is directed against a group of persons or a member of a group defined by race, color, religion, descent or national or ethnic origin, and c) the act is likely to incite violence or hatred. Prison sentences of not less than one year are further envisaged for public dissemination or distribution of tracts, pictures or other material related to those crimes. If the criminal offense disturbs public peace and order, is threatening, abusive or insulting, or is committed by a public official, it is punished by not less than three years of imprisonment. Glorifying convicted war criminals, by giving them a recognition, award, memorial, any kind of memento or privilege, or by naming a public object after them is also punishable under the new regulation.
The law does not introduce an overall ban of genocide denial but limits the persecution to judicially established crimes and to expressions motivated by violence or hatred based on ethnic or other discriminatory grounds. Alternative approaches and interpretations of past events remain possible for scientific reasons, for example, or in dissenting opinions of national judges. The new legislation thus offers a balance between protection from hate speech and protection of freedom of expression.
Although the amendment does not exclude a much broader application (it implicitly includes a Holocaust denial ban for example), it primarily aims at preserving the judicially established truth regarding the mass atrocities committed in the Bosnian war, and especially its darkest chapter, the crime of genocide. More than 7.000 Bosnian Muslim (Bosniaks) men and boys were executed by the Bosnian Serb Army and more than 25.000 women, children and elderly were forcibly deported from the UN “safe area” of Srebrenica in July 1995. In its landmark caseProsecutor v. Radislav Krstic in 2001, the ICTY ruled that the crimes committed in Srebrenica fit the legal definitionof genocide. Following this verdict, the ICTY and its successor found several other officials of Republika Srpska guilty of genocide, most notably the former President Radovan Karadzic and the General Ratko Mladic – both sentenced to life imprisonment. In 2007, the International Court of Justice also ruled that the massacre committed in Srebrenica was an act of genocide.
A land where war criminals are heroes
Despite these rulings and the overwhelming forensic evidence, political leaders and institutions in Republika Srpska and neighboring Serbia continue to engage in a systematic genocide denial. Mladen Grujicic, the first Serb mayor of post-war Srebrenica has repeatedly denied that the ICTY has ever proved that the Srebrenica massacre was a genocide and publicly questioned the number of victims. Milorad Dodik, the Serb member of BiH’s tripartite presidency, has called the Srebrenica genocide “a fabricated myth,” promoted conspiracy theories to contradict the judicially established facts on genocide, and even named a student dormitory after Radovan Karadzic, one of the convicted war criminals. In 2016, the Parliament of Republika Srpska awarded several convicted war criminals with honors. More recently, it set up a “truth commission,” largely composed of foreign academics, “Investigating the Sufferings of all Peoples in the Srebrenica Region in the Period from 1992 to 1995.” On 21 July 2021, the commission issued a report which concludes that a genocide did not happen in Srebrenica, minimizes the number of victims, and portrays Bosniaks as the aggressor and the Bosnian Serbs as victims. Menachem Z. Rosensaftcalled this report an “embarrassment to scholarship” and a “legal and factual abomination.” Murals and graffiti celebrating convicted war criminals as heroes, and streets and squares named after them are decorating many cities in Republika Srpska and a poll in 2018 revealed that 74 percent of Serbs in Republika Srpska consider Radovan Karadzic to be a war hero. The persistent glorification of war criminals resulted in the normalization of genocide denial and the implicit affirmation of genocide as an “acceptable” act. It goes without saying that all of this is blocking any possible path to reconciliation.
A much needed law
In the 10-stage model of genocide, elaborated by Gregory H. Stanton, genocide denial is the final stage following a genocide and among the surest indicators of its repetition. In BiH, in addition to a widespread genocide denial, the trend even went a step further culminating in the glorification of convicted war criminals. Hariz Halilovich calls this phase, in which war criminals are celebrated and honored as war heroes, “triumphalism.” BiH might be a singular case of triumphalism, but it shows what can happen when a post-conflict society lacks an appropriate legal framework punishing genocide denial. Analyzing the situation using Stanton’s 10-stage model suggests that without the continuous presence of the international community, BiH represents an ideal ground for the repetition of violent conflicts. A punitive memory law thus appears to be much needed in this disturbing context of normalization of genocide denial, triumphalism, and a growing culture of impunity. As has been rightly observed, revisionism in BiH has nothing to do with allowing a plurality of approaches and interpretations of historical atrocities, but is a rewriting of history “with little or no respect for facts.”
One brick at a time
What remains unlikely, however, is that an internationally imposed memory law can create internal reconciliation. The existing literature generally agrees on the fact that reconciliation cannot be imposed from the outside. International actors may be present and support national initiatives, but reconciliation will remain an internal affair. In other words, a law banning genocide denial should have been adopted by national institutions. That would have been a clear signal of former enemies coming together to create a shared understanding of the painful past and build a bridge towards a common future. Previous attempts to pass such law by the BiH Parliament have, however, all failed mainly due to Bosnian Serb opposition.
In the absence of an internal political will to address past wrongs, the imposed legislation risks to trigger an internal memory war and further exacerbate divisions. This has already been proven in practice. The law was welcomed by the relatives of the victims and Bosniak politicians, but firmly rejected by politicians and institutions in Republika Srpska. Milorad Dodik immediately announced that Serbs will not accept this legislation, that genocide did not happen, and called the new law the “last nail in the coffin of BiH.” He further threatened with the dissolution of the country, and encouraged the Parliament of Republika Srpska to decide on an “institutional response” to the imposed denial ban. As a result, on 30 July 2021, the Parliament adopted a law on the non-implementation of the HR’s decision, and an amendment to the criminal code of Republika Srpska, which introduced prison terms of up to fifteen years for calling Republika Srpska a “genocidal creation” or for disrespect of its symbols, independence and territory.
Yet, despite these newly emerged tensions, the imposed genocide denial ban represents a necessary instrument. It provides for a legal framework capable of combatting the deep institutional and social acceptance of denialism and triumphalism. The ending of which would be the first brick for unblocking the path to reconciliation. In fulfilling this primary mission the imposed law has already shown some positive effects: genocide denial on media reports and social media rapidly decreased after the ban came into force.
This publication is part of the project We-R (Illusions of eternity: the Constitution as a lieu de mémoire and the problem of collective remembrance in the Western Balkans) that has received funding from the European Union’s Horizon 2020 research and innovation programme under the Marie Skłodowska-Curie grant agreement No 898966.
Morgane holds a Master degree in Human Rights and Multi-level Governance from the University of Padova with a focus on the Middle East and North Africa area – with in depth studies on Palestine and Syria –, humanitarian law, and detention matters/rights.
ANWAR AL-BUNNI is an influential and authoritative Syrian lawyer and human rights defender. He is well-known and deeply trusted within the Syrian exile communities as well as within the transnational network of actors committed to Syrian matters.
Al-Bunni is one of the founders of the Syrian Human Rights Association and, as a lawyer, in Syria, he was particularly committed to defending civil society’s activists, who were systematically persecuted, imprisoned, and tortured for expressing their ideas through peaceful demonstrations and nonviolent actions, especially in the wave of the 2001 Damascus Springrepression. The lawyer started to defend political prisoners in 1986, and until he was in Syria, despite challenges and risks carried from this activity, he never stopped carrying on such a job. For this reason, he – and his family members – have repeatedly been the target of repressive measures, including the disbarment from the Damascus Bar Association. Moreover, in 2006, after having signed the so-called Damascus-Beirut Declaration, together with a number of human rights activists, the lawyer was arrested and charged with “dissemination of false information which could harm the morale of the nation.” After a trial he was found guilty and, thus, sentenced to five years of detention. In addition, al-Bunni’s human rights training center was closed. The outstanding lawyer has therefore spent various years in the Adra detention center, in the Damascus area, where he reported to have systematically been subjected to abuses and tortures from the prison’s staff. In 2014, after his release, notwithstanding his willingness “to stay in Syria as long as possible to defend the increasing number of political prisoners” – as he stated during an interview with the author – he was forced to leave the country because of the increasing threats he was receiving. Once established in Germany, the lawyer founded the Syrian Center for Legal Studies and Research[LS – center], which aims at collecting information about high-ranking Syrian officials in order to start criminal cases against them and at developing researches and trainings regarding the justice process of Syria. Although in Germany he does not have the license to practice as a lawyer, al-Bunni has started to cooperate with the European Center for Constitutional and Human Rights[ECCHR] in order to prepare a strong case file, to assist and support Syrian survivors and mediating between German prosecution offices and the Syrian exile community. As many Syrian tortures’ witnesses and survivors personally know him from Syria, the lawyer has been able to encourage them to actively participate in the Al-Khatib Trial, managing to gather a strong group of plaintiffs and witnesses.
The Detention Time: Anwar al-Bunni has reported – over the course of an interview with the author – that during the long detention time, he “tried to make the best of [his] time [there].” Therefore, he “started working out and devised plans for Syria’s political future, that later, [once released], [he] wrote down and published.” Particularly, he based such a state-building project for the future of Syria on four drafts: a set of transitional provisions (2017), a new Constitution (2005) and its fundamental principles (2019), and a document regulating political parties (2007).
Thus, the following interview with the lawyer will tackle some relevant points of the Syrian case. Particularly, starting from the meaning and impact of the ongoing Al-Khatib Trial, other significant issues will be discussed. In the first instance, the abovementioned trial, based on universal jurisdiction and addressing core international crimes committed in Syria, represents a ground-breaking proceeding as it appears as the last resort for accountability for the vast amount of crimes that have been committed in Syria in the last ten years. Indeed, given the deadlock situation at the international level, both the General Assembly of the United Nations[UNGA] and the Independent International Commission of Inquiry on the Syrian Arab Republic[CoI] have expressly called upon states to use universal jurisdiction to fill the huge gap of impunity covering Syrian most severe crimes and perpetrators. Anyhow, such a trial carries both challenges and strengths, that will be investigated with the lawyer over the course of the interview.
Going on, the conversation will deal with the need of a victim-focused and victim-oriented transitional justice processwhich – based on a combination of criminal accountability measures and on a set or reparatory justice measures – could pave the way to a successful and inclusive constitution-making process for the future of Syria. Therefore, the interview will close with the lawyer’s vision regarding future perspectives of constitution making in Syria. Specifically, al-Bunni will call attention to the hypothetical state building project for Syria he laid down, aimed at achieving a representative democracy for Syria and based on the respect of individual fundamental human rights and on citizens’ political participation in the country’s government.
Concluding, regarding his work, Anwar al-Bunni stated that “as a human rights defender it is not the repression, imprisonment, and torture that we have suffered that counts, but what we have seen and documented. The crimes against humanity, the war crimes committed and still being committed while the world looks on.”
Dr. Zarije Seizović graduated from the Sarajevo Law School and holds Master of Science and Doctorate in Political Sciences. He is currently employed as Full Professor at the Faculty of Political Sciences of the University of Sarajevo, where he teaches International Humanitarian Law, Law of Defence and Security, Political System of BiH, Study of Holocaust and Genocide at Bachelor and Master level, and Humanitarian Interventions and Collective Security at doctoral level. He worked as a lawyer in the War Crimes Chamber of the BiH State Court, as legal counsel in number of international organizations such as OSCE and UN Missions to BiH as well as International Crisis Group (ICG). He also worked as an Attorney-at-Law, Criminal Court Judge and Registrar of the Constitutional Court of the Federation of BiH, and spokesperson of the Border Police of BiH. As consultant he was involved in a number of judicial and public administration reform projects in BiH and Balkans. He is the author/co-author of 17 books in English and national language/s as well more than 100 articles published in BiH and abroad. He is member of Political Sciences Board of the Academy of Sciences and Arts of Bosnia and Herzegovina.
I Indictment and charges
Chief Commander of the Bosnian Serb Army General Ratko Mladić was arrested on 15 May 2011 and transferred to the ICTY on 31 May. The trial commenced on 16 May 2012 while closing arguments were held from 5 until 15 December 2016.
The Initial indictment of 14 November 1995 charged Ratko Mladić and Bosnian Serb key political leader Radovan Karadzic with genocide, crimes against humanity and violations of the laws or customs of war. During the trial, the indictment had been changed three times. The last one, fourth amended indictment of 11 December 2011, charges General Mladić with genocide, crimes against humanity and violations of the laws or customs of war.
The accused was finally charged with two counts of genocide (Counts 1 and 2), five counts of crimes against humanity (Persecutions – Count 3, Extermination – Count 4, Murder – Count 5, Deportation – Count 7, Inhumane acts i.e. forcible transfer – Count 8) as well as four counts of violations of the laws or customs of war (Murder – Count 6, Terror – Count 9, Unlawful attacks on civilians – Count 10 and Taking of hostages – Count 11).
The indictment argues that General Ratko Mladić is individually criminally responsible pursuant to Article 7(1) of the ICTY Statute for the counts listed above, inter alia through his participation in a number of Joint Criminal Enterprises (JCEs).It is being alleged that, from 12 May 1992 until 30 November 1995, General Mladić participated in a JCE to permanently remove Bosnian Muslim and Bosnian Croat population from part of the territory of Bosnia and Herzegovina, which was claimed to be a “Bosnian Serb territory“. It is also alleged that, between 12 May 1992 and November 1995, Mladić participated in a JCE to establish and carry out a campaign of sniping and shelling against the civilian population of the City of Sarajevo, aimed to spread terror amongst them. Additionally, it is alleged that, during the period immediately proceeding 11 July and until 1 November 1995, Mladić participated in a JCE to eliminate Bosnian Muslims in the area of Srebrenica by killing men and boys and forcibly removing women, young children and the elderly from the said area. Eventually, it is alleged that during May and June 1995, Mladić participated in a JCE to take United Nations personnel hostage in order to compel NATO to abstain from conducting air strikes against Bosnian Serb military forces and targets. General Mladić is also charged as a superior pursuant to Article 7(3) of the ICTY Statute for the crimes in the indictment, for inter alia, knowing or having reason to know that crimes were about to be committed or had been committed by forces under his effective control and failing to prevent the crimes or punish the perpetrators.
The crimes alleged in the indictment include, among others: killing of Bosnian Muslims and Bosnian Croats, including leading members of these groups; detention of thousands of Bosnian Muslims and Bosnian Croats in detention facilities (concentration camps) in living conditions calculated to bring about their physical destruction; killing of over 7,000 Bosnian Muslim men and boys of Srebrenica through both organised and arbitrary executions; wanton destruction of private and public property including cultural monuments and sacred sites, such as a number of mosques across the country; acts of murder that formed part of the objective to spread terror among the civilian population of Sarajevo through a campaign of sniping and shelling carried out between 12 May 1992 and November 1995.
II The Verdict
The Trial Chamber, having considered all of the facts, evidence, and arguments of the parties; as well as the Statute and the Rules; and based upon the factual and legal findings set out in detail in the written Judgment, found Ratko Mladić not guilty for Count 1, but guilty, as a member of various joint criminal enterprises, of the following counts: Count 2, Genocide. Count 3, Persecution, a crime against humanity; Count 4, Extermination, a crime against humanity; Count 5, Murder, a crime against humanity; Count 6, Murder, a violation of the laws or customs of war; Count 7, Deportation, a crime against humanity; Count 8, the inhumane act of Forcible Transfer, a crime against humanity; Count 9, Terror, a violation of the laws or customs of war; Count 10, Unlawful attacks on civilians, a violation of the laws or customs of war; and Count 11, Taking of hostages, a violation of the laws or customs of war. For having committed these crimes, the Chamber sentenced Mr. Mladić to life imprisonment.
III International Residual Mechanism for Criminal Tribunals’ Decision
The Appeals Chamber of the International Residual Mechanism for Criminal Tribunals on 8 June 2021 delivered its judgement on the appeals filed by Mr. Ratko Mladić and the Prosecution against the judgement rendered on 22 November 2017 by a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”).
The Appeals Chamber unanimously dismissed Mr. Mladić’s appeal in relation to the Hostage-Taking JCE and dismissed his appeal in relation to the Overarching JCE, the Sarajevo JCE, the Srebrenica JCE, as well as arguments related to his fair trial rights with Judge Nyambe dissenting. The Appeals Chamber affirmed his convictions pursuant to Article 7(1) the ICTY Statute for genocide, for persecution, extermination, murder, deportation, and other inhumane acts (forcible transfer) as crimes against humanity, as well as for murder, terror, unlawful attacks on civilians, and hostage-taking as violations of the laws or customs of war under Counts 2 to 11 of the Indictment.
The Appeals Chamber further dismissed the Prosecution’s appeal in its entirety, two judges dissenting, and accordingly affirmed the Trial Chamber finding that Mr. Mladić is not guilty of genocide under Count 1 of the Indictment in relation to crimes committed against Bosnian Muslims and Bosnian Croats in certain municipalities in Bosnia and Herzegovina.
The Appeals Chamber affirmed the sentence of life imprisonment imposed on Mr. Mladić by the Trial Chamber, with Judge Nyambe dissenting.
IV Political and Legal Effects of the Trial
General Ratko Mladić – as a participant to a JCEs – was accused of having a particular intent (genocidal intent, dolus specialis), to destroy, in part the national, ethnical and/or religious groups (so called protected groups) of Bosnian Muslims and/or Bosnian Croats as such. The intent showed it’s most extreme manifestations in municipalities Bratunac, Foca, Kljuc, Kotor Varos, Prijedor, Sanski Most and Vlasenica a significant section of the Bosnian Muslim and/or Bosnian Croat groups, more precisely their leaderships, as well as a substantial number of members of these groups were targeted for destruction.
On the other side, the genocide is confirmed to have been committed by final verdict solely in Municipality of Srebrenica (General Krstic case). The International Court of Justice (ICJ), back in 2017 had confirmed this factual background. So, if General Mladić gets sentenced for crime of genocide occurred in additional six municipalities, it would mean that the very crime of genocide had wider area to have been committed across. As Mladić was on the payroll of The Army of Yugoslavia (Vojska Jugoslavije), the second instance verdict established a direct link to regime of Slobodan Milosevic in Belgrade, and showed that genocide in Srebrenica and some other widespread and systematic ethnic cleansing campaigns were planned and executed not only by Bosnian Serb forces, but also outlined by the political and military establishment of the neighbouring Republic of Serbia. Although this scenario, introducing a new fact in the factual background of the case recently ended before the ICJ (case Bosnia and Herzegovina v. Serbia and Montenegro), revealed a notorious factual linkage between Serbia and armed conflict in Bosnia and Herzegovina – by such verdict turning this link into a legal link. This link, in the last 7-8 years is being meticulously wiped away be the verdicts of ICTY (by General Perisic acquittal and by ordering new trial for two main intelligence officers of the Belgrade regime Jovica Stanisic and Franco Simatovic, who among others were members of JCE)
As Mladić was found guilty as charged, it shed a completely new “political and legal light” on the what had happened in Bosnia during the armed conflict 1992-95: (1) it established that genocide and other war crimes were planned and executed not only by the Bosnian Serb Army; (2) it implicitly denoted Serbia a participant to an armed conflict in Bosnia and (3) it raised responsibility of the State of Serbia for crimes committed across its international borders, further implicitly confirming that the armed conflict in Bosnia was not an internal conflict (civil war) but an international armed conflict. Namely, General Ratko Mladić was on the payroll of the Armed Forces of Yugoslavia (Vojska Jugoslavije) and verdict made direct link between his involvement in the Bosnian conflict, and the (at the time) regime of Slobodan Milosevic in Belgrade, which proved that mass atrocities committed were “backed up” by the political and military establishment of the neighbouring Republic of Serbia. Eventually, the above-described factual background under no circumstances may serve to BiH as legal basis for any legal action before the ICJ as the deadline for such action set by the Statute of the ICJ had already passed. Pursuant to Article 61 of the Statute of the ICJ,
1. An application for revision of a judgement may be made only when it is based upon the discovery of some fact of such a nature as to be a decisive factor, which fact was, when the judgment was given, unknown to the Court and also to the party claiming revision, always provided that such ignorance was not due to negligence.
The Court may require previous compliance with the terms of the judgment before it admits proceedings in revision.
4. The application for revision must be made at latest within six months of the discovery of the new fact.
5. No application for revision may be made after the lapse of ten years from the date of the judgment.
What a bizarre coincidence?! Ten years had passed. Has justice really been done!?
Morgane holds a Master degree in Human Rights and Multi-level Governance from the University of Padova with a focus on the Middle East and North Africa area – with in depth studies on Palestine and Syria –, humanitarian law, and detention matters/rights.
On the 23rd of April 2020 – in the courtroom 128 of the Higher Regional Court in Koblenz, Germany – the so-called Al-Khatib Trial, or Koblenz Trial, started. The trial charges are for crimes against humanity allegedly committed on Syrian political oppositors in Al-Khatib, or Branch 251, a detention center responsible for Damascus and the surrounding area. Such a proceeding represents a landmark event because the crimes under prosecution are framed in the overall picture of systemic crimes committed by the Assad government since 2011. Thus, besides collecting evidence and knowledge which could be useful in other trials, it also brings to light the broader Syrian repressive apparatus in which the indicted have operated.
The Al-Khatib trial, based on universal jurisdiction and addressing international core crimes, appears to be particularly challenging regarding the issue of evidence gathering and corroborating. Because of its international and political nature and the massive scale of violations under review, the trial requires a great effort on both national and international levels, therefore, it is carried on together with a network of support, meaning through close cooperation between local and international NGOs, local and foreign lawyers, and international organizations. As for now, in the Koblenz courtroom, expert lawyers of the forum state and of the states where crimes occurred, together with international and local NGOs, organizations, institutions and expert ethnologists have cooperated in collecting and verifying evidence as well as putting together a strong case file. They have testified along with a great number of Syrian plaintiffs, victims and witnesses, giving detailed insights about the social power dynamics, the secret services, the military’s role, the detention facilities’ conditions, and torture methods.
Specifically, the two Syrian officials accused in the Al-Khatib trial are Anwar Raslan and Eyad Al-Gharib. Anwar A allegedly is the head of the Investigation Unit in the General Intelligence Service of Branch 251. He is charged with being a co-perpetrator in 4000 cases of torture, 58 murders, and individual cases of sexual assault and rape in a timespan covering from April 2011 to September 2012. These alleged crimes can be classified as crimes against humanity. So far, many witnesses and plaintiffs have released testimonies against him in the Koblenz courtroom, declaring that, inside Al-Khatib, he was known as Colonel Anwar R and his task was “to gather information in any way possible”. Accused with him is Eyad A who was employed in a subdivision that worked under the Anwar R investigative unit in Branch 251. As in fall 2011 he allegedly arrested protesters and permitted the incarceration and torture of at least 30 detainees, he has been indicted of aiding and abetting crimes against humanity.
Upon request of the Federal Prosecutor Office, the court has agreed to separate the trial against Eyad A. Therefore, from the 27th of January, the proceeding is dealing exclusively with Anwar R crimes, which is scheduled to be sentenced in October 2021.On the other hand, the trial on Eyad A was concluded on the 24th of February 2021, when the defendant has been sentenced. The court’s verdict found Eyad A guilty of crimes against humanity, specifically for thirty cases of aiding and abetting torture and aggravated deprivation of liberty and sentenced him to four and a half years in prison. The judge has explained the active intervention of the accused in the arrest and transport of peaceful demonstrators to the detention center, where Eyad A himself stated to have been able to “hear the screams of the tortured all the way in the cafeteria.”
Sidita holds a Master degree in Human Rights and Multi-level Governance from the University of Padova,with an interdisciplinary focus and action-oriented approach to the study of human rights in a multi-level context.
Almost two decades after the fall of the communist regime in Central and Eastern Europe, a growing trend of nostalgic attitudes towards the past emerged in post-communist societies. The common trend of nostalgia observed in eastern Germany (GDR) and among former East Bloc has been referred to as “Ostalgie”, a combination of the word “Osten” meaning east and nostalgia.
Nostalgia is a byproduct of society and it is triggered by disillusionment with the present reality. Nostalgic attitudes towards the socialist past are motivated by multiple factors: the disintegration of family bonds, the lack of feeling of belonging, the fading of traditions, societal transformation, mass migration, expansion of consumerism and a growing void resulting from the pursuit of material goods.
The transition from a collectivist society to a capitalist one is associated with the transformation of people’s lifestyles, disintegration of social bonds in which previously societies had been embedded, thus giving way to new societies driven by profit, shaped by neo-liberal policies such as privatization and liberalization of trade. The transition to capitalism in Albania, had far-reaching negative consequences such as the demolition of welfare state, the rise of unemployment rate, the emergence of turbo-capitalism, and the rise of social injustice, accompanied by a prolonged period of political uncertainty.
In the light of such political and societal change, people long for an era when there was social order and when the individual’s fulfilment and moral values were inseparable from society. Thus, nostalgia is an attempt to imbue today’s world with the positive aspects of the bygone era. Some of the aspects that people view as positive with regards to the past include a general feeling of security, social stability, regulated employment, free education, free healthcare, state enterprises and state-controlled production, genuine social bonds, healthy lifestyle, among others.
Nostalgia can be examined on the level of individuality – as private memories about the past, and on the level of society – as collective memories about the past. Both private and collective memories of the past are based on selective remembering of positive aspects of the past and forgetting the negative ones.
For example, Lirka, former accountant and member of a former persecuted family highlights the pleasant aspects of the past such as “harmony and geniality between a close circle of family members and friends” while minimizing the negative ones such as “economic hardships and suffering of my family” due to persecution. “Whereas today people have become more distant with each-other and maybe it is so because of capitalism” she concludes.
The Public Memory of Communist past in Public Discourses
The public memory of communist period during the early phases of post-communism in Albania, was a taboo topic in public discourses. The first effort to articulate a public demand to deal with the legacy of the communist past at the national level crystallized in 2010, with the case of the “Pyramid”, and it centered around the proposals for the demolition versus the preservation of the building.
Berisha, the right-wing prime minister at the time planned to demolish the former museum and to erect a new “temple of democracy” building for Albania’s Assembly while Rama, head of the left-wing party in opposition insisted on preserving the building as evidence of Albania’s history and culture. 
In 2016, a national survey on Citizens’ perceptions of the communist past in Albania, revealed for the first time that Albanians “have very ambivalent feelings about the communist past.”
According to the published results, 62% of the respondents felt that the Communist legacy in Albania is “somewhat problematic”, while 35% felt that it is “not a problem at all.” Economy, Corruption, Education and Environmental Pollution were chosen by respondents, among the ranks that pose “big problems” in comparison to the legacy of the communist past, whereas other ranks such as Order/Security were perceived as less problematic in comparison to the above ranks, but still more problematic than the communist legacy. According to historian Celo Hoxha, “the fact that the communist crimes have still not been condemned produces this kind of result”, the tendency to view communism with nostalgic eyes by many people in Albania.
While the legacy of socialism in Albania has been contested, one thing is certain: that socialism gave Albania railways, free healthcare, mass literacy, electricity and universal suffrage, although citizens could vote only for the Communist party. As Lucas, US reporter at Boston Herald, observed during his multiple visits to Albania, after the regime change “many people remarked the time when they had a job, but they had no freedom. Now they had freedom, but they had no jobs.” 
Indeed, according to the same survey, Albanians cited “Public order”, followed by “Job security” and “Good healthcare”, as the top positive aspects of the Communist period in Albania. Other positive aspects mentioned included: Education system, social equality, rule of law and minimum standards of living, respectively. Whereas “Lack of freedom”, followed by “Class war” and “Violation of Civil and Human Rights” respectively, were mentioned as the three most negative aspects of the regime, according to the same survey. Other negative aspects mentioned included: poverty, inefficiency of food, dictatorship as a political regime, presence of terror feeling, religion & education limitations and the collectivization respectively. 
Bunkers: from symbols of isolation to mediators with the world
After almost a decade of being forgotten, the turn of the millennium witnessed a reawakening of local’s interests towards the neglected concrete bunkers scattered around the country. Once a symbol of internal domination and isolation during the communist regime, today the bunkers are nothing but remains of a collapsed political regime and a bankrupt ideology, which are now publicly mocked.
“If used as souvenirs, bunkers have not ceased to communicate, but are being employed to communicate a very different message: a self-deprecating, post-communist kitsch aesthetic which recuperates the past as ‘heritage’ through the idiom of mockery.”
The last years have seen an increasing interest in appropriation of the bunkers, proper to the consumption of “bunker fantasy” and with interest for the tourism sector. While some of them have been repurposed as café and restaurant, “bed & bunker” and even a tattoo parlor, others have gradually become what Theodor Adorno called “kulturlanschaft”, ruined constructions returned to nature. Once constructed as fortification objects for the function of self-defense, today they can be appreciated for their aesthetic and artistic value.
Elton Çaushi, co-founder of Albanian Trip and local tour guide operating in Tirana, has found creative ways to engage with the communist material heritage by offering alternative tours such as “Bunkers and the Bizarre History of Albania” during which the visitors have the chance to travel to various sites where bunkers slowly ingrained on the ground and covered by plants, sea or soil are located, and enjoy an unusual visual journey where one can observe the sporadic intervening of nature with human labor in the most remote locations.
As Çaushi highlighted: “It is important to condemn Enver Hoxha and one way to do so is by converting those structures that he had created to keep people isolated into structures that attract people/custom.” 
Communist-era movies: “offensive and denigrating” vs. “a cinematic heritage”
On 30 Mach 2017, a proposal requiring the ban on the broadcast of communist-era films from national media, sparked controversy and spurred a public debate on decommunization.
The proponents of the proposal argued that the screening of communist-era movies loaded with propaganda “keeps alive and activates nostalgia for the dictatorship” and “does great damage to public health”, particularly to the young generation who are not well-informed about the communist era atrocities due to a gap in school curricula. The propaganda falsifies and distorts historical events, manipulates the truth, glorifies the Labor Party and its leaders and creates moral and national stigma by portraying members of certain groups as dangerous enemies of the country.
On the other hand, the critics of such proposal including many film producers, film critics and actors who starred in the communist-era films, shared a concern that banning those movies from television screens would result in an almost complete erasure of Albania’s cinematic heritage.
Kolec Traboini, a screenwriter for the KinoStudio during the communist era, considered the proposal inacceptable as “it is one thing to hate communism, and another is to know the realities of the time.” For Mark Cousins, director, film critic and advisor at the Albanian Cinema Project, banning the communist films would be a counter-productive way to deal with the wounds of the past as “Films didn’t commit the crimes of the Hoxha era” and “they are not better or worse than their times” but “they are evidence of what was thought and felt.”
For the broader audience, the good acting, authentic movie characters and memorable communist-era film quotes evoke memories of a familiar sight of childhood in the days gone by.
Afterall, the proposal did not receive enough support from the public and at present, there are no laws in place to regulate the broadcast of communist-era cinematographic production in national media.
A Contested Collective Memory: The fine line between remembrance and appropriation of communist symbolism
The inauguration of Bunk’Art in 2014, a communist-era underground bunker transformed into a museum dedicated mainly to communist memory at a time when the nation’s communist memory was still contested, sparked public debates and accusations of the project being politically motivated. In addition, the fact that the government who was responsible for the realization of Bunk’Art was a socialist one, has been criticized as, among other things, an attempt to appropriate the symbolism of the communist regime. 
Bollino, curator of Bunk’Art and Bunk’Art 2, explains that alongside the technical difficulties of recovering communist-era documents, “the greatest difficulties were cultural: […] as he “struggled a lot to make it clear that remembering the facts of the communist period does not mean having nostalgia for communism.”
The cultural difficulties intensified further with the inauguration Bunk’Art 2 museum in 2016, which was not well-received by the public and became subject to controversy. 
The designation of the entrance in the form of an artificial igloo-shaped bunker, similar to those constructed during Hoxha’s regime and its location in a central public space without prior public consultation, caused public reactions which eventually led to a protest. The protest was fueled by accusations of the right-wing party against the left-wing party in power, for being insensitive towards the former persecuted people or families of victims who suffered under the communist regime, alongside accusations for evoking nostalgia for the dictatorial regime.
Eventually, the protest of December 2015 degenerated into vandalism and the fake bunker was set on fire and was defaced by angry protestors. The holes that remained in the external walls of the bunker were covered in transparent plastic and repurposed as windows, thus ironically commemorating the intense public reactions against it. The museum has already been accepted by the population now.
For Elton Caushi, co-founder of Albanian trip “the entrance-bunkerwas an eccentric choice. The damage that was done to it was intentionally covered with plastic to show a part of Albania’s contemporary history too, to make the discussions about the bunkers relevant.”
Regardless of the ambivalent feelings towards the communist regime and the contested collective memory in Albania, the results of the national survey show that nearly 77% of the respondents support the creation of a museum about the communist regime whereas 63% think that the communist-era sites of persecution should be preserved for future generations.
Nostalgia: “A Necessary Evil”
All in all, nostalgia is a complex emotion and should not be equated or reduced to an irrational desire to restore the past, as it has been broadly misperceived. It should be treated as part of a broader and more complex healing process, and an attempt to come to terms with the difficult past, in order to grasp the realities of the present and address the inherent inequalities of post-communist societies.
Besides, nostalgia and especially neo-nostalgia combined with the emerging market conscious attitude, have served as a push factor for curious foreign visitors who are interested towards the so-called dark tourism associated with the communist era in Albania, a period during which the country was cut out from foreign influences.
Thus, it is no coincidence that in the new wave of heritagization, the ubiquitous bunkers, have been carefully selected as the quintessential symbol of Albanian communism in tourism marketing.
As Caushi said, “Bunkers are the symbol of Albania which are used in tourism marketing, it is a cliché that sells… this comes from a tragic past but it’s not the only example… even at the Colosseum people were killed to entertain other people or at the Pyramids where thousands of slaves were used to construct a tomb for the pharaoh.”
 Sepkowski 2010 in Reksc 2015:106. “Nostalgia for Communism in the Collective Imaginations.” Procedia – Social and Behavioral Sciences, Vol. 183, pp. 105-114.
 Turbo-capitalism refers to an unregulated form of capitalism with financial deregulation, privatization and lower tax on high earners. Turbo-capitalism involves: the absence of regulation for banking/finance system.
 Interview with Lirka Preka [5 November 2020, Shkoder]
 A museum built in honor of Enver Hoxha, located in the capital’s city center.
 Agricultural cooperatives were state-administered farms created after the collectivization of land started (1946-1990). It collectivized the land and the agricultural production, the trade and means of production while the revenue generated from the agricultural cooperatives were distributed to the people who worked in these cooperatives. By 1979 in Albania there were no existing individual private farms.
 Regis 1999 in Galaty, L. M., Stocker, S. and Watkinson, Ch. 1999: 184. “The Snake that Bites: The Albanian Experience of Collective Trauma as Reflected in an Evolving Landscape” in Brown, K. and
Justin O. Frosini is Director of the Center for Constitutional Studies and Democratic Development and an Adjunct Professor of Constitutional Law at Johns Hopkins University’s School of Advanced International Studies (SAIS). He is also Associate Professor of Comparative Public Law at Bocconi University.
Alexis Keys is a MAIA candidate at SAIS Europe and plans to study diplomacy, policy analysis and the conditions serving the proliferation of peace and self-determination in Africa and the Middle East. She is a research assistant at the Center for Constitutional Studies and Democratic Development.
Combining the areas of expertise of the two authors the paper starts by providing the contemporary context to the first Trump impeachment then it goes on to compare today’s legal instrument with the British historical roots of impeachment by making reference to the Framers’ records from the late 18th century during the Constitutional Convention in 1787 and subsequent debates for ratification. The third section of the paper then addresses the actual case that brought about the approval of articles of impeachment against President Trump and offers a critique of the Senate Trial. At this point, the paper turns to the past so as to make a comparison between all previous cases of impeachment with the first Trump impeachment and then, having in mind public trust, the paper offers some predictions for the future combined with an intricate use of counterfactuals. The paper ends by encouraging concerned parties to look beyond political polarization because the current dynamics at work in shaping American political parties and partisan moods are also shaping electoral oversight, constitutional interpretation by the legislature, and the scope of executive authority. In the final analysis, the paper underlines the fact that one should never forget that impeachment exists to uphold democratic constitutionalism.
Dr Carna Pistan is an affiliated Scholar at the Center for Constitutional Studies and Democratic Development and Marie Curie Global Fellow for the project “Illusions of Eternity: the Constitution as a lieu de mémoire and the Problem of Collective Remembrance in the Western Balkans”
It is with sadness that the Center for Constitutional Studies and Democratic Development has learnt of the passing of Jovan Divjak – the former Bosnian army general, who defended Sarajevo during the 44-month-long siege of the city. The siege of Sarajevo began 29 years ago and lasted until 29 February 1996. It was the longest siege of a capital city in modern history (1.425 days), and one of the most dramatic and emblematic events of the violent dissolution of the former Yugoslavia, with thousands of civilians killed and wounded.
With the outbreak of the war in BiH in April 1992, Jovan Divjak firmly rejected the logics of nationalism and division along ethnic lines, and fought for a multi-ethnic BiH. Although he was an ethnic Serb born in Belgrade and a retired officer of the Yugoslav National Army (JNA), he immediately chose to fight against the army he had served under and joined the practically unarmed Bosnian army, which was just being formed, to defend Sarajevo and BiH’s independence. As he once explained: “It was natural to be with those who were attacked, who did not have weapons […]. The idea of a multi-ethnic Bosnian army had won me over.” Divjak identified himself as a Bosnian and anti-nationalist: […] I did not stay in Sarajevo as a Serb. I do not define my identity through religion or nationality. I am Jovan Divjak, a citizen of this country.” During the Sarajevo siege, Divjak coordinated the defense of the city, and became the Deputy Commander of the Territorial Defense of BiH and the Sarajevo Territorial District. Divjak’s memories of the Bosnian war (1992-1995) are to be found in his books: “Sarajevo, mon amour” (Buchet-Chastel, 2004 with a foreword by Bernard-Henri Lévy; Italian edition: Infinito edizioni, 2015), and “Rat u Hrvatskoj i Bosni i Hercegovini 1991–1995” (The War in Croatia and Bosnia and Herzegovina, Jesenski i Turk, 1999).
After the war, Divjak continued to fight for a “civic BiH” by devoting himself entirely to humanitarian work. In 1994, he funded the Association “Obrazovanje gradi BiH” (OGBH – Education builds BiH), which assists with the education of children who lost their parents in the war. Over the years, OGBH has granted thousands of scholarships to orphans and children from poor families. In July 2001, Divjak was awarded the Legion of Honour by France for “his civic sense, his refusal of prejudice and ethnic discrimination.” He also won other international and national awards, including the Order of Lafayette, Sixth of April Award of Sarajevo, the International League of Humanists Plaque, and the Plaque of the Sarajevo Canton. He appeared also in the BBC documentary “The Death of Yugoslavia” (1995), Sergio Castellitto’s “Venuto al mondo” (2012), and is the subject of the Al-Jazeera World documentary “Sarajevo My Love” (2013).
Nonetheless, in the post-war period Divjak faced several lawsuits related to the war. While in Sarajevo he remain one of the most beloved wartime figures, the hero who defended the city and the symbol of multi-ethnic BiH, in neighbouring Serbia Divjak is seen as a “traitor.” On 3 March 2011, while on his way to Italy for a conference, Divjak was arrested in Vienna in response to a Serbian arrest warrant accusing him of war crimes related to an attack on a Yugoslav Army convoy in Dobrovoljacka Street in Sarajevo of 3 May 1992, during which several JNA soldiers were killed. Although his name did not appear on the lists of the ICTY or those of Interpol, the Austrian police arrested Divjak on the basis of a “black list” drawn up after the Bosnian war by Milosevic’s Serbia, where his name appeared along with 17 other people who, like Divjak, opposed the war of ethnic cleansing. A few days later after being arrested, Divjak was released on bail, and finally an Austrian court rejected Serbia’s extradition request by basing its ruling on an earlier decision of the Hague tribunal (ICTY), which stated that there was not enough evidence to start proceedings against Divjak, as well as due to the inability to guarantee a fair trial in Serbia. Divjak denied the allegations and insisted he ordered the shooting to stop. Indeed, in a television recording of that event, Divjak can be seen shouting: “Do not shoot!” Furthermore, in January 2012, the Bosnian State Prosecutor’s Office suspended an investigation against 14 suspects, including Divjak, although in 2018, the Constitutional Court ordered the prosecution to reconsider the case. In March 2017, the Croatian State Attorney’s Office indicted Divjak and several other Bosnian Army officers for war crimes against Croats during the war in Bosnia. The lawsuits Divjak had to face in the post-war period sadly reflect what one could define as “Balkan stylememory-making” where heroes are often considered as war criminals, and war criminals as heroes.
For many years now, students from the Johns Hopkins University SAIS Europe and the University of Bologna have had the opportunity of meeting Jovan Divjak at his Association “Obrazovanje gradi BiH” during the annual CCSDD Sarajevo Study Trip – a four-day study trip to Sarajevo organized to give students the opportunity to meet with representatives of organizations currently engaged in post-conflict reconstruction, human rights issues and democratic development of BiH. During these meetings, Divjak would tell students about the past and current political, social and economic situation in BiH, as well as historical facts about the former Yugoslavia and the conflict of the 1990s. With the former general as their guide, our students also had the unique opportunity of visiting two important places of memory: the Tunnel of Hope(the only connection Sarajevo had with the outside world during the siege), and the Old Jewish Cemetery (the largest Jewish cemetery in Southeast Europe, which was on the front line during the Bosnian war).
We will all remember these meeting and visits with utmost gratitude.
Thank you “Hero of Sarajevo” for everything generations of SAIS and UNIBO students have learnt from you!