The 2021 Memory Law in Bosnia and Herzegovina – Reconciliation or Polarization?

Abstract

ABSTRACT In July 2021, the outgoing international High Representative (HR) of Bosnia and Herzegovina (BiH) imposed a set of amendments to the Criminal Code of BiH, which outlawed the denial of genocide and relativization of war crimes. The decision was largely welcomed by Bosniaks but met with animosity to many in the Bosnian Serb entity and sparked one of the worst crises in post-war BiH. In this article, we demonstrate that because of the manner of the adoption and the legal stipulations, the HR’s decision played straight into the raging BiH memory wars. It exacerbated tensions and distrust in state institutions, rather than contributing to reconciliation and peace as intended. We present a two-pronged argument, aligned with the scholarship that critically assesses external transitional justice. First, we argue that a punitive memory law adopted in such an opaque and elite-driven manner can hardly contribute to reconciliation in a divided post-war context as it does not contribute to an inclusive societal discussion about the past but merely silences the most outrageous dissenters. Second, even the minimal objectives of curbing hate speech and incitements of hatred – which some memory laws achieve – has delivered mixed results in the BiH case due to the poor design and implementation of the law. We showcase how the practical application has stalled, laying bare the weak capacities of state-level institutions, further reducing public trust in their functioning – the opposite of what was declaratively intended.