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Photo by Paolo Caroli (2016)
Photo by Paolo Caroli (2016)

Memory laws affect us in various and often controversial ways. They sometimes impose criminal penalties on speech or conduct deemed offensive to the plight of national heroes or tragic victims. In that punitive form, memory laws impose limits on democratic freedoms of expression, association, the media, or on scholarly research.

Yet memory laws reach beyond the bounds of criminal law. Children everywhere grow up reading state-approved texts designed to impart not merely a knowledge, but an interpretation of history. Governments everywhere designate national memorial ceremonies or authorise the construction of public monuments. The line between punitive and non-punitive laws indeed remains far from clear. Decisions, for example, about the content of school texts ordinarily fall outside the criminal law, but, in many countries, instructors dissenting from a prescribed view of the past may find themselves dismissed or disciplined.

Background and legacies

(Excerpted from the Introduction to: Law and Memory: Addressing Historical Injustice by Legislation and Trials (Uladzislau Belavusau & Aleksandra Gliszczyńska-Grabias, eds., Cambridge University Press, forthcoming)

The political deployment of memory traces back to the origins of the modern, ‘post-Westphalian’ state, where we discover patterns still at work in today’s world. In the aftermath of the Thirty Years’ War, the reformer Jean Calvin preaches Christian forgiveness. He demands that rivals cast off hatred and banish all remembrance of injustice. That kind of sermon may well inspire awe, but it is above all military security and social pragmatics that will favour Calvin’s approach.

What emerges might generously be called a forgiveness model, or more shrewdly an oblivion model. In the Treaty of Westphalia (1648), a stepping stone in the development of modern international law, states are expressly obliged to enforce amnesties and pardons for all wartime wrongdoings. Public rituals surrounding local and national hostilities will, to safeguard the emerging nation states, remain vigilantly prudent. That politics of sheer silence, aimed at preventing public discord, haunts much of our world today.

A century later, we nevertheless find French Revolutionaries introducing an approach ostensibly opposite to that model. Austerely rationalist Jacobins orchestrate a nation’s march into an enlightened future. That future ends up defined in express opposition to France’s past. Earlier institutions—indeed the entirety of the ancien régime—come to be presented as ignorant and antiquated. We now find a model of zealous remembrance, which, to this day, will compete with, yet will also interweave with the oblivion model.

Among the revolutionaries’ mnemonic novelties we discover prescribed rituals of civic remembrance, comprehensive museum reforms, and the creation of republican state archives. The state modernises the very concepts of ‘past’ and ‘future’ through its new republican calendar, and by decreeing a clock divided into 100 hours of 100 minutes. Twentieth-century revolutions will replicate those simulacra of modernity, notoriously those of Kim Il-Sung’s North Korea and Pol Pot’s Cambodia.

‘[T]o forget’, Søren Kierkegaard would later muse, ‘is an art that must be practiced in advance. To be able to forget always depends upon how one remembers.’ And state-supervised forgetting requires state-supervised remembrance.

On 10 August 1793, the first anniversary of the monarchy’s demise, the Louvre opens its doors to all. From that moment forward, French republicanism will dictate not only the nation’s future, but also its past. A thousand years of monarchy metamorphose, on that single day, into a showcase of curios. Those loyal to the aristocratic past are the outsiders and the enemies. The feudal past becomes mythologised as the ‘Other’ of political and legal modernity. That binarist badge—now codifying the crime of treason—attaches to all rivals of the bourgeois state. Museum displays transform from elite trifles into tools for engineering national unity, or rather cultural homogeneity, along with mass republican consciousness.

State-appropriated memory succeeds by emerging as obvious and truthful. To this day, Marie Antoinette stands as a symbol of our wonderment, not as a symbol of our anxieties.  Few of us pity the demise of a privileged aristocracy. Yet states will use those same techniques to shape public attitudes towards nationhood, ethnicity, race, religion, and class.

The 1776 Declaration of Independence, promulgated in Philadelphia by peoples’ representatives within the North American colonies, fashions the ‘history of the present King of Great Britain’ as ‘a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states.’ Those words will shape the minds of countless Americans. In reality, the colonists were paying lower taxes and enjoying an average quality of life higher than their old-world counterparts. (Europeans were already commenting on ‘how big’ their American cousins were.) And they would inflict on their own indigenous peoples and African slaves a ‘tyranny’ more devastating than any wrought under George III.

A century later, in Bismarck’s Europe, we find the Prussian empire continuing that project of manufacturing myths of continuity from past heroism to present glory. The French model— some might say ‘myth’—of citizenship steadily infuses legal discourse to the point that the Treaty of Versailles (1919) includes a ‘War Guilt Clause,’ attributing comprehensive responsibility to a still-monarchical Germany for loss and damage incurred during World War I. Far from Westphalian oblivion, Versailles constructs transnational law through a discourse of foundational guilt.

Few events better illustrate how precarious the business of official constructions of memory can become. Through the spread of national secular states and global colonialism, law’s mnemonic narratives increasingly pervade constitutional ideals of citizenship beyond the Western world, as witnessed, for example, in post-Ottoman Turkey with the cult of Atatürk or in post- imperial Japan, with censorship of its militarist past. Coerced oblivion and coerced remembrance become two versions of the same—politically explosive—tactic.

The universalised ‘duty to remember’ emerges after World War II, with mediatised criminal proceedings, most famously during the international military tribunal in Nuremberg (1945–1946), the Israeli trials of Adolf Eichmann (1961) and Ivan Demjanjuk (1986–1988), or the French trial of Klaus Barbie (1987). The distinctly modern legal concept of ‘genocide’ enters international law in 1948 with the UN Genocide Convention.

Such a concept becomes central to conceptualising past horrors as criminal. That legal appropriation of the past manifests notoriously through the crime’s retroactive liability. It carves out an exception to time-honoured rule of law principles that forbid ex post facto penalties (nullum crimen, nulla poena sine lege). Since the demise of the Soviet-backed dictatorships, democratic advances towards consolidating the rule of law have collided with pressures for quick retribution meted out on those deemed collectively responsible for decades of oppression, even absent evidence of specific crimes.

Subsequent prohibitions on Holocaust denial in various countries offer an arch-example of the contemporary legal regulation of memory. Denial or trivialisation of the annihilation of six million Jews is now criminal in several Western democracies, either as a form of hate speech (Volksverhetzung or incitement to hatred) or as a distinct crime of genocide denial. Trials outside Germany include, for example, Canada’s proceedings against James Keegstra (1984) and Ernst Zündel (1985), or the Holocaust denier David Irving’s libel action brought in Britain against the American historian Deborah Lipstadt.

A leading precedent in international law is the 1996 finding of the UN Human Rights Committee, upholding a criminal conviction of the French revisionist historian Robert Faurisson. Faurisson had received a special ‘courage’ award for his negationism from the Iranian President Mahmoud Ahmadinejad in 2012, emblematic of the Holocaust denial long documented in many Muslim-majority (but also other) states. The French judiciary (2008) and the ECtHR (2013), while supportive of laws criminalising denial of the Nazi-perpetrated Holocaust, have held those newer bans to be in violation of rights of free expression. (Similar problems arise around atrocities committed in Rwanda or in Cambodia under the Khmer Rouge.) Likewise, the classification of the Srebrenica massacre as a genocide of the Bosnian population remains contested within international law and politics. Behind such conflicting results looms the disquieting spectre of a ‘hierarchy of atrocities.’

In addition to acknowledging the suffering of millions of Jewish victims, criminalisation of Holocaust denial after World War II has transformed social reality and led to a global spread of memory laws. Together with prohibitions on displays or commerce in Nazi and other extremist memorabilia, symbols and literature, anti-negationist laws have, some would argue, promoted a reductively binary vision of World War II.

Consensus around the condemnation of Nazi atrocities is certainly broad, but some observers challenge the binarist narrative. The allied powers, they claim, too easily emerge as untainted. The 1945 atomic bombings by US forces and the carpet bombing of Dresden under British and US orders stand as tragically anti-heroic episodes. Widespread rape of German and Hungarian women by allied soldiers, too, has only recently attracted serious attention. The binarist narrative ends up eagerly exploited by radical groups in states such as Austria, Germany, or Japan—on the right and the left—to advance their credo that European governments manipulate the past to prop up an elitist, US-dominated world.

Britain and the US are, moreover, not the only culprits. Most older Central and Eastern Europeans were indoctrinated with false information about Soviet conduct, such as the Molotov- Ribbentrop partition of Poland (1939). Similarly, the Kremlin long attributed the Katyń massacre to the Germans, although it was committed under Soviet command. Recent attempts to commemorate Stalinist crimes include the 1998 Polish laws against the denial of Soviet-era atrocities and the 2006 Ukrainian law against denying the Holodomor, the politics of mass starvation engineered by Joseph Stalin in 1932-33 to crush national autonomy movements. We must again ask how far that renewal of memory ought to extend. How legitimate are the Baltic states’ prohibitions on the denial of Soviet repression? How selective are EU resolutions commemorating Stalinist crimes?

Leading European (EU and CoE) institutions have nonetheless built their normative concepts upon the value of acknowledging past crimes and avoiding future ones, precisely through their policies of political and cultural integration. Memory laws have proved instrumental to the politics of coming to terms with the past (Vergangenheitsbewältigung). They have promoted a post-war German civil society generally educated about Nazi atrocities. Memory laws have been central to the concept of ‘militant’ (streitbare or wehrhafte) democracy, which excludes incitement to hatred from constitutionally protected rights of free expression in order to preserve liberal democracy.

For some experts, however, that approach remains flawed. Intellectuals increasingly question bans as overly intrusive into the spheres of expression and enquiry. Faurisson’s conviction was questioned by a jurist of no less stature than Simone Veil, former President of the European Parliament, former member of France’s Conseil constitutionnel, and Auschwitz survivor. Despite their increasing currency, concepts such as the ‘right to the truth’, the ‘right to memory’ or the ‘right to mourning’ raise vexing questions as to their scope, their implementation, and their impact on rights of expression and association.

The desire to define the past extends beyond individual European states to generate pan-European (EU and CoE) or even international attempts to preserve some constitutional order; however, it remains far from clear whether a distinctly European concept, let alone an international concept of public order can command any consensus. Any notion of a national ‘margin of appreciation’, as recognised by the European Court of Human Rights, raises further dilemmas in view of the internationalisation of concepts such as ‘genocide’ or ‘crimes against humanity’.

Objectives

Any practicing lawyer quickly learns that countless rules and regulations play nothing more than pragmatic, managerial or administrative roles. Memory laws could not be more different. They are the very model of official norms as bearers of symbolic meaning. Central to the development of critical approaches to memory laws will be the exchange of expertise on historical and cultural context.

MELA’s aim is to undertake both an interpretive (descriptive) and a normative (prescriptive) study of memory laws. Through our collaborative research, we shall be proposing a European code of best practice for the drafting and implementation of memory laws—a ‘Framework Declaration on Historical Memory’ as a set of legal and policy guidelines to aid national governments, European and international bodies, and non-governmental organisations in adopting critically-minded images of the past within the spheres of education, media, and civic life.

Memory laws are glaringly embedded in culture, demanding an interdisciplinary analysis informed by political science, sociology, history, and linguistics. Linguistic analysis in particular anchors the other approaches, as the wording of memory laws symbolically codifies certain political stances. Consider, for example, references to a regime’s past ‘crimes’. One must distinguish between, on the one hand, that word’s legal meaning in Europe, denoting findings of guilt adjudicated through competent trial proceedings, and, on the other hand, the term’s more popular or colloquial usage, denoting a broader but perhaps vaguer sense of injustice. That dilemma sharpens within the multilingual contexts which a general theory must take into account. We cannot assume Verbrechen, délit, ‘crime’, and other Western and non-Western cognates to be coextensive, either in formal legal usage or within the vernaculars of various cultures.

In addition to an analysis of constitutional provisions, statutes, jurisprudence, and commentaries, we discuss arguments put forward in government, scholarly and public debates surrounding the proposals and the enactment of the relevant bills, with attention to constitutional courts, including cultural disagreements expressed by dissenting or separate judicial opinions, and by public critics of such laws.

We apply our inter-disciplinary and comparative approaches to constitutional and sub- constitutional laws in two respects. First, as an important part of the project deals with the pan- European (EU and CoE) level, attention will be devoted to the case law of the European Court of Human Rights (in particular, on genocide denials, ‘right to truth’, and related discussions of historical memory), as well as to soft law promulgated within the various EU bodies. We examine the emerging ‘duty to memory’ in recent programs promoting ‘European Remembrance’. In particular, we scrutinise memory laws in view of their compatibility with freedoms of academic public expression. Second, to broaden the critical-comparative element, we examine debates around memory laws in some non-European democracies, such as Australia, Brazil, Canada, Israel, Turkey, the USA, South Africa, along with decisions of the Inter-American Court of Human Rights. Although our focus remains on Europe, we seek outreach with UN Human Rights bodies, which, although subject to criticism in recent years, might well find that some integrated position helps in the creation of adopting general standards through which possible abuses can be assessed.

Framework Declaration on Historical Memory

The ‘Framework Declaration on Historical Memory’ is planned to offer a model code of best practice for the formulation and implementation of national, European, or international memory laws. For models we shall look to the texts and drafting histories of documents such as the Council of Europe’s (CoE) Framework Convention for the Protection of National Minorities (1995), its Framework Convention on the Value of Cultural Heritage for Society (2005), and the anti- revisionist provisions of the 2008 EU Council Framework Decision on Combating Racism and Xenophobia.

Just as the 2005 document, for example, includes headings such as ‘Cultural heritage law and dialogue’ (art. 7) or ‘Sustainable use of the cultural heritage’ (art. 9), so our Framework Declaration will include headings such as ‘Historical memory and free expression’, ‘Historical memory and academic freedom’, ‘Historical memory and minority rights’, ‘Historical memory and political pluralism’, and ‘Historical memory and the dangers of nationalism’.

A broader corpus of European and international instruments concerned with images of the past will also inform our fundamental norms and concepts (such as ‘crimes against humanity’), including the landmark UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948, as well as subsequent UN instruments concerned with cultural rights and historical memory. To achieve MELA’s ‘prescriptive’ Framework Declaration, we shall apply the following ‘descriptive’ methods.

A ‘declaration’ (as opposed, for example, to a ‘treaty’) is adopted in international and European law as non-binding, aimed at promoting ethical standards, but not with a view towards imposing penalties. ‘Prescriptive’, for that kind of legal instrument, does not mean ‘punitive’. Prior Council of Europe and European Union Framework instruments (cf. Full Proposal, A.3(3)) presuppose ‘subsidiarity’ or ‘margin of appreciation’ doctrines: they articulate minimum standards while acknowledging divergent histories and contexts across European states. CoE and EU institutions are neither empowered nor do they desire to impose Framework norms through ‘edicts’. Framework declarations can support media professionals, civil society organisations, activists, and scholars who seek to challenge abusive state practices. 

A monument recently in Budapest in 2015, for example, portrays Hungary in the form of an angel, as the innocent victim of Nazi occupation. It omits any reference to the Horthy regime (1920-44), which had in fact adopted anti-Jewish race laws before the Germans did so, and then pro-actively collaborated in Nazi atrocities. Yet Europe lacks a declaration of norms to which dissident Hungarian politicians, judges, journalists, teachers, or scholars can turn as means of authoritatively contesting that official history. Similar problems arise with regard to fascist legacies in Spain or Portugal, or the former communist regimes of Eastern Europe.

A Framework instrument will serve neither to formulate overarching dogma nor to impose punishments, but rather to ensure that European institutions function as more than technocratic bodies by promoting minimum standards in the commemoration of brutal episodes from Europe’s past. As the Hungarian example shows, the Declaration can credibly enshrine norms challenging official histories that would pervasively falsify state complicity in large-scale atrocities. 

Not all historical controversies lend themselves to straightforward resolutions. Whether an equally strong norm can be adopted at the opposite end of the spectrum—not with respect to the state falsifying history, but with respect to citizens or non-state entities punished by the state for doing so, as in the case of Holocaust denial—is admittedly a harder question. Several states maintain such a penalty, and yet do not punish the denial of other heinous events. At the very least, however, a minimum standard can recommend that such states provide accounts (for example, in textbooks) to explain the state’s choices as to those historical events which do or do not attract special legal protection.

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