Memory laws

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A memory law (German Erinnerungsgesetz, French loi mémorielle) is a legal provision governing the interpretation of a historical event and showcases the legislator’s or judicial preference for a certain narrative about the past. In the process, competing interpretations may be downplayed, sidelined, or even prohibited.

Various types of memory laws exist, in particular, in countries that allow for the introduction of limitations to the freedom of expression to protect other values, such as the democratic character of the state, the rights and reputation of others, and historical truth.

Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias define memory laws as "enshrine[ing] state-approved interpretations of historical events." [1]

Eric Heinze argues that law can work equally powerfully through legislation that makes no express reference to history, for example, when journalists, academics, students, or other citizens face personal or professional hardship for dissenting from official histories.[2]  

Memory laws can be either punitive or non-punitive. A non-punitive memory law does not imply a criminal sanction. It has a declaratory or confirmatory character. Regardless, such a law may lead to imposing a dominant interpretation of the past and exercise a chilling effect on those who challenge the official interpretation. A punitive memory law includes a sanction, often of a criminal nature. Nikolai Koposov refers to "memory laws per se" as "laws criminalizing certain statements about the past."[3]

Memory laws often lead to censorship.[4] Even without a criminal sanction, memory laws may still produce a chilling effect and limit free expression on historical topics, especially among historians and other researchers.[5]

Memory laws exist as both ‘hard’ law and ‘soft’ law instruments. An example of a hard law is a criminal ban on the denial and gross trivialization of a genocide or crime against humanity. A soft law is an informal rule that incentivizes states or individuals to act in a certain way. For example, a European Parliament resolution on the European conscience and totalitarianism (CDL-AD(2013)004) expresses strong condemnation for all totalitarian and undemocratic regimes and invites EU citizens, that is, citizens of all member states of the European Union, to commemorate victims of the two twentieth century totalitarianisms, Nazism and Communism.

History[edit]

The term "loi mémorielle" (memory law) originally appeared in December 2005 in Françoise Chandernagor article in Le Monde magazine. [6]

Chandernagor protested about the increasing number of laws enacted with the intention of "forc(ing) on historians the lens through which to consider the past". She referred to the 1990 Loi Gayssot introduced to the French Act on the Freedom of the Press a prohibition on the "contestation" of crimes against humanity, as defined by the Charter of the International Military Tribunal [7] as well as to "loi Arménie” adopted in 2001, that recognized the Armenian genocide [8], the "loi Taubira” from 2001 recognizing slavery and the transatlantic slave trade as a crime against humanity [9] and the "loi Rapatrié” from 2005, which required French schools to teach the positive aspects of French presence on the colonies, in particular in North Africa [10].

Scholars of memory laws have pointed to the proliferation[11] and promulgation of memory laws in the past decade within the member states of the Council of Europe and well beyond.[12]

The headings of "memory law" or "historical memory law" have been enthusiastically applied to diverse regulations adopted around the world. For example, both journalists and academic scholars used the terms to describe Spain’s 2007 Historical Memory Law [13], Russia’s 2014 law prohibiting rehabilitation of Nazism[14], Ukraine’s 2015 de-communization laws [15], and Poland’s 2018 law prohibiting the incorrect attribution of responsibility for the atrocities of the Second World War to the Polish state or nation [16].

The Council of Europe has provided a working definition of memory law as laws which "enshrine state-approved interpretations of crucial historical events and promote certain narratives about the past, by banning, for example, the propagation of totalitarian ideologies or criminalising expressions which deny, grossly minimise, approve or justify acts constituting genocide or crimes against humanity, as defined by international law."[17]

States tend to use memory laws to promote the classification of certain events from the past as genocides, crimes against humanity and other atrocities. This becomes especially relevant when there is no agreement within a state, among states or among experts (such as international lawyers) about the categorization of a historical crime.[18] Frequently, such historical events are not recognized as genocides or crimes against humanity, respectively, under international law, since they predate the UN Genocide Convention[19].

Memory laws adopted in national jurisdictions do not always comply with international law and, in particular, with international human rights law standards. For example, a law adopted in Lithuania includes a definition of genocide that is broader than the definition in international law.[20]

Types of memory laws[edit]

Non-punitive laws of declarative and interpretative character about the past. Such legal acts are often adopted in a form of political declarations and parliamentary resolutions.

See:

  • Recognition of Armenian genocide
  • European Parliament resolution of 2 April 2009 on European conscience and totalitarianism
  • European Parliament resolution of 23 October 2008 on the commemoration of the Holodomor, the Ukraine artificial famine (1932-1933)[21]
  • European Parliament resolution of 26 March 2019 on fundamental rights of people of African descent in Europe (2018/2899(RSP)[22]

Holocaust and genocide denial bans are memory laws in the strict sense of the term. Such laws entail a criminal sanction for denying and minimizing historical crimes.[23] Initially Holocaust and genocide denial bans were considered a part of hate speech.[24] Yet the recent doctrine of comparative constitutional law separates the notion of hate speech from genocide denialism, in particular, and memory laws, in general.[25] Denial of the historical violence against minorities has been connected to the security of groups and individuals belonging to these minorities today. Therefore the often-invoked rationale for imposing bans on the denial of historical crimes is that doing so prevents xenophobic violence protects the public order today.[26] See:

Bans on propagating fascism and totalitarian regimes prohibit the promotion and whitewashing of the legacy of historical totalitarianisms.[27] Such bans limit the freedom of expression to prevent the circulation of views that may undermine democracy itself, such as calls to abolish democracy or to deprive some individuals of human rights. The bans are popular in countries within the Council of Europe, especially in those with first-hand experience of twentieth century totalitarianism such as Nazism and Communism.[28] This type of memory law also includes banning certain symbols linked to past totalitarian regimes, as well as bans on publishing certain literature.

See:

Laws protecting historical figures prohibit disparaging the memory of national heroes. They often reinforce a cult of personality. Turkish Law 5816 ("The Law Concerning Crimes Committed Against Atatürk") and Heroes and Martyrs Protection Act adopted in China are examples of these types of memory laws.[29]

See:

Punitive laws prohibiting expression of historical narratives that diverge from, challenge or nuance the official interpretation of the past. Such norms often include a criminal sanction for challenging official accounts of the past or for circulating competing interpretations.

A notable exception was a French law that obliged high school teachers in France to teach about the “positive elements” of the French presence in colonies did not include a criminal sanction element. Regardless, teachers could have faced administrative consequences for not complying with its requirements.

Laws prohibiting insult to the state and nation function as memory laws too. They are devised to protect the state or nation from forms of insult, including "historical insult". In other words, these laws prohibit intentionally wrongful and slandering attribution of responsibility for historical crimes - even when such attribution is based on historical facts.[30]

See:

Laws protecting historical figures prohibit disparaging the memory of national heroes. They often reinforce a cult of personality. Turkish Law 5816 ("The Law Concerning Crimes Committed Against Atatürk") and Heroes and Martyrs Protection Act adopted in China are examples of these types of memory laws.

Laws prohibiting commemorations. Another category of memory laws object to or even prohibit certain commemorations, especially held by minorities who have different views of historical events than a majorities or titular nations.[33]

See:

Transitional justice laws or legacy laws enforce norms introduced in the contexts of post-conflict and post-authoritarianism to promote the entrenchment of democratic culture and prevent backsliding into conflict or undemocratic forms of political regimes. Their aims are decidedly oriented to the present and future, but an official repudiation and condemnation of elements of the past is an important feature to reckon with past atrocities.

Examples include annulments of political sentences, laws obliging removal of monuments and mass street renaming.

See:

Memory laws and the politics of memory[edit]

Memory laws constitute a central element to the politics of memory and impact on the culture of historical memory and culture of remembrance.

Maria Mälksoo uses the term "mnemonic security" to describe the function of memory laws as element of historical and security policies in post-Soviet context. Competing nationalisms may be channeled through memory laws adopted in neighboring countries sharing a difficult history and producing conflicting accounts on the past.[35] Nikolai Koposov calls such phenomenon "memory wars".[36]

The nexus of securitization and historical memory[37] is visible in constitutional and criminal law provisions in post-Soviet democracies in Central and Eastern Europe.[38] Uladzislau Belavusau introduced the term and has marked the rise of “mnemonic constitutionalism” in Europe, that is a type of legislation and judicial decisions that  transcend pure measures against genocide denialism and declarative memory laws postulating or commemorating certain historical events”,[1] embedding historical myths into constitutional texts and major statutes.[39]

Memory laws across the world[edit]

Europe[edit]

Council of Europe[edit]

Framework decision on combatting racism and other forms of antisemitism from 2008.

European Union[edit]

European Union: EU Parliament resolution of 1 April 2009 on European Conscience and Totalitarianism, European Parliament resolution of 15 April 2015 on the centenary of the Armenian Genocide.[1]

Albania[edit]

Genocide law (Albania)

Bulgaria[edit]

2016 amendments to ban on communist symbols

Estonia[edit]

Fundamental law that implies the narrative of occupation of Estonia by the Soviet Union instead of narrative of voluntary incorporation of the Estonian Republic.

Prohibitions on the denial of Soviet repression.

France[edit]

France criminalizes denial, minimizing, and grossly abating Holocaust and other genocides recognized by international tribunals on the grounds of the first of the French lois memorielles loi Gayssot and subsequent judicial reviews by Constitutional Council. In 2001 on the grounds of loi Taubira France officially condemned historical slave trade as crime against humanity. In counterpoint, in 2005 the country adopted loi Mekacher with provisions ordering to include information about positive elements of French presence in colonies, in particular in North Africa. Those controversial elements of the law were later on struck as unconstitutional by the Conseil Constitutionnel.

Hungary[edit]

2011 Fundamental Law (the Constitution) which establishes a radical cesura between the past and present Hungarian State.

Poland[edit]

1998 laws against the denial of Soviet-era atrocities.

2016 amendement to the Act on the Institute of National Remembrance, punishing up to three years imprisonment for intentional referring to concentration and extermination camps built and run by Nazi Germany on the occupied Polish territory during the Second World War as “Polish death/concentration camps".

Access to Russian archives on the Katyn Massacre pronounced in the European Court of Human Rights judgment Janowiec and Others v. Russia in 2012.

Spain[edit]

Laws easening granting citizenship to descendant of Sephardic Jews expulsed in 1492 by the Alhambra Decree.

Historical Memory Law from 2007, amended in 2016, aimed at coming to terms with General Franco regime, which reversed the previous policy of oblivion known as Pact of Forgetting.

Ukraine[edit]

2006 law against denying the Holodomor.

2015 Ukrainian decommunization laws.

2016 ban on communist symbols

Russia[edit]

2014 Federal Law which defends positive narrative about the Soviet Union based on dominant Russian narratives about Great Patriotic War and the USSR’s role in defeating Nazi Germany, known as law against public rehabilitation of Nazism.[40]

Middle East[edit]

Israel[edit]

The barriers to the commemoration of the mass displacement of Palestinians in Israel, so-called Nakba laws.[2] See also Arab school in Haifa controversy.[3]

Asia[edit]

Bangladesh

2016 draft Liberation War Denial Crimes Act

South America[edit]

Chile[edit]

Laws aiming at overturning Amnesty Laws dating back to Gen. Augusto Pinochet military dictatorship.[4]

Argentina[edit]

Juicio por la Verdad

North America[edit]

Canada[edit]

Canadian Aboriginal Law

Africa[edit]

Rwanda[edit]

2003 Law No. 33n bis/2003 of 2003 Repressing the Crime of Genocide, Crimes Against Humanity and War Crimes

2008 Law No. 18/2008 of 2008 Relating to the Punishment of the Crime of Genocide Ideology

South Africa[edit]

1996 South African Constitution in the preamble recognizes injustices of the past (Apartheid) with aim to heal the divisions and establish more just and democratic society.

Australia[edit]

Laws concerning indigenous Australians

United Nations[edit]

The Convention on the Prevention and Punishment of the Crime of Genocide from 1948

See also[edit]

References[edit]

  1. ^ Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias, "Introduction: Memory Laws: Mapping a New Subject in Comparative Law and Transitional Justice" in Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (rds.), Law and Memory: Towards legal Governance of History (Cambridge University Press, 2017), p. 1.
  2. ^ Erik Heinze, Theorising law and historical memory: Denialism and the pre-conditions of human rights, Journal of Comparative Law 290(1018)/2018, pp. 43-60.
  3. ^ Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press, 2017), p. 6.
  4. ^ Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (rds.), Law and Memory: Towards legal Governance of History (Cambridge University Press, 2017), pp. 1-26.
  5. ^ Ilya Nuzov, "Freedom of Symbolic Speech in the Context of Memory Wars in Eastern Europe", Human Rights Law Review (2019), pp. 1–23.
  6. ^ Françoise Chandernagor, "L'enfer des bonnes intentions", Le Monde 16.10.2010. Accessible at: https://www.lemonde.fr/idees/article/2005/12/16/l-enfer-des-bonnes-intentions-par-francoise-chandernagor_722124_3232.html (accessed: 20.08.2019).
  7. ^ Loi n° 90-615 du 13 juillet 1990 tendant à réprimer tout acte raciste, antisémite ou xénophobe , NOR: JUSX9010223L.
  8. ^ Loi n° 2001-70 du 29 janvier 2001 relative à la reconnaissance du génocide arménien de 1915 , NOR: PRMX9803012L.
  9. ^ Loi n° 2001-434 du 21 mai 2001 tendant à la reconnaissance de la traite et de l'esclavage en tant que crime contre l'humanité, NOR: JUSX9903435L.
  10. ^ Loi n° 2005-158 du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés, NOR: DEFX0300218L.
  11. ^ Robert Kahn, Free Speech, "Official History and Nationalist Politics: Toward a Typology of Objections to Memory Laws". U of St. Thomas (Minnesota) Legal Studies Research Paper, 2018, pp. 18–25.
  12. ^ See  Nikolai Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press 2017).
  13. ^ Omar G. Encarnación, "Spain Exhumes Its Painful Past", The New York Review of Books, 24.08.2018, https://www.nybooks.com/daily/2018/08/24/spain-exhumes-its-painful-past/.
  14. ^ Jacob Mchangama, "First They Came for the Holocaust Deniers, and I Did Not Speak Out", Foreign Policy, 2.10.2016, https://foreignpolicy.com/2016/10/02/first-they-came-for-the-holocaust-deniers-and-i-did-not-speak-out/.
  15. ^ Eduard Dolinsky, "What European Jews fear", The New York Times, 11.04.2017, https://www.nytimes.com/2017/04/11/opinion/what-ukraines-jews-fear.html.
  16. ^ Noah Feldman, "Poland Has a Way Out of Its Holocaust Memory Law", Bloomberg Opinion, 4.04.2018, https://www.bloomberg.com/opinion/articles/2018-04-04/poland-has-a-way-out-of-holocaust-law.
  17. ^ Council of Europe, Memory Laws and Freedom of Expression. Thematic Factsheet. July 2018. https://rm.coe.int/factsheet-on-memory-laws-july2018-docx/16808c1690."
  18. ^ George Soroka and Felix Krawatzek, "Nationalism, Democracy, and Memory Laws" Journal of Democracy, 30(2) (2019), pp. 157-171.
  19. ^ Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the. United Nations on 9 December 1948.
  20. ^ Justinas Žilinskas,"Broadening the Concept of Genocide in Lithuania's Criminal Law and the Principle of" Nullum Crimen sine Lege"". Jurisprudencija, (4) (2019), 333-348.
  21. ^ http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-0523&language=EN
  22. ^ http://www.europarl.europa.eu/doceo/document/TA-8-2019-0239_EN.html?redirect
  23. ^ Emmanuela Fronza, "The Crime of Historical Denialism and International Law" In Memory and Punishment (TMC Asser Press 2018), pp. 51-69.
  24. ^ Uladzislau Belavusau, "Hate Speech", in Max Planck Encyclopaedia of Comparative Constitutional Law, 2017: https://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e130.
  25. ^ Paolo Lobba, "Holocaust Denial before the European Court of Human Rights: Evolution of an Exceptional Regime". European Journal of International Law, 26(1) 2015, pp. 237-253.
  26. ^ Uladzislau Belavusau, Rule of Law in Poland: Memory Politics and Belarusian Minority, VerfBlog, 2017/11/21: https://verfassungsblog.de/rule-of-law-in-poland-memory-politics-and-belarusian-minority/.
  27. ^ Grażyna Baranowska and Anna Wójcik, "In defense of Europe’s memory laws", Free Speech Debate, 1 November 2017: https://freespeechdebate.com/discuss/in-defence-of-europes-memory-laws/
  28. ^ Antoon De Baets, "Laws Governing Historians’ Expression". In Berber Bevernage, Nico Wouters (rds.), The Palgrave Handbook of State-Sponsored History After 1945  (Palgrave Macmillan 2018), pp. 39–67.
  29. ^ Simon Denyer, "China criminalizes slander of its ‘heroes and martyrs’ as it seeks to control history", The Washington Post, 27.04.2018: https://www.washingtonpost.com/world/asia_pacific/china-criminalizes-the-slander-of-its-heroes-and-martyrs-as-it-seeks-to-control-history/2018/04/27/c4b48f16-49e9-11e8-ad53-d5751c8f243f_story.html?utm_term=.8b20e3d49c59
  30. ^ Uladzislau Belavusau and Anna Wójcik, « La criminalisation de l’expression historique en Pologne: la loi mémorielle de 2018 » [Criminalizing Historical Expression in Poland: Memory Law of 2018], Archives de politique criminelle, n°40, 2018, pp. 175-188.
  31. ^ Nikolay Koposov, "Defending Stalinism by Means of Criminal Law: Russia, 1995–2014", In Uladzislau Belavusau and Aleksandra Gliszczyńska--Grabias (rds.) Law and Memory: Towards Legal Governance of History (Cambridge University Press 2017), pp. 293-309.
  32. ^ Uladzislau Belavusau and Anna Wójcik, "La criminalisation de l’expression historique en Pologne: la loi mémorielle de 2018" [Criminalizing Historical Expression in Poland: Memory Law of 2018] (26 October 2018), Archives de politique criminelle, n°40, 2018, pp.175-188.
  33. ^ Yfat Gutman, "Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power?". Law & Society Review, 50(3) 2016, pp. 575-607
  34. ^ Jeremie M. Bracka, "From banning Nakba to bridging narratives: the collective memory of 1948 and transitional justice for Israelis and Palestinians". In Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (rds.), Law and Memory: Towards Legal Governance of History (Cambridge University Press 2017), pp. 348-373.
  35. ^ Maria Malksoo, "Kononov v. Latvia as the ontological security struggle over remembering the second world war." In Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (rds.), Law and Memory: Towards legal Governance of History (Cambridge University Press, 2017)
  36. ^ Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press, 2017), p. 6.
  37. ^ Aleksandra Gliszczyńska–Grabias, Aleksandra: Law and Memory, VerfBlog,2018/1/04, https://verfassungsblog.de/law-and-memory/, https://verfassungsblog.de/law-and-memory/.
  38. ^ Wójcik, Anna: Memory Laws and Security, VerfBlog, 2018/1/05, https://verfassungsblog.de/memory-laws-and-security/, https://verfassungsblog.de/memory-laws-and-security/.
  39. ^ Belavusau, Uladzislau: Final Thoughts on Mnemonic Constitutionalism, VerfBlog, 2018/1/15, https://verfassungsblog.de/final-thoughts-on-mnemonic-constitutionalism/, https://verfassungsblog.de/final-thoughts-on-mnemonic-constitutionalism/.
  40. ^ "First They Came for the Holocaust Deniers, and I Did Not Speak Out".