Memory laws

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A memory law (French loi mémorielle, German Erinnerungsgesetz) is a law that enshrines state-approved interpretations of particular historical events and promotes certain narratives about the past, often at the expense of alternative historical interpretations. Memory laws are important elements of state-sanctioned politics of memory.

Memory laws are found in both hard law and soft law.

Another conceptual binary is division between positive and negative memory laws.

  • Positive memory laws: for example national parliamentary resolutions recognizing the Armenian genocide, the EU Parliament’s resolutions establishing a European “duty to remember”
  • Negative memory laws: for example laws criminalizing genocide denial or gross trivialization, bans on propagation of totalitarian ideologies

History of memory laws[edit]

Peace of Westphalia is considered as example of forgiveness of oblivion model, the same as more contemporary Pact of Forgetting in post-Franco Spain and the thick line policy of Tadeusz Mazowiecki's government in Poland.

The model of zelous remembrance is examplified by actions of Jacobins during the French Revolution and by ‘War Guilt Clause” in Treaty of Versailles which ended the First World War.[1]

Holocaust and genocide denial[edit]

Decommunization[edit]

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.[2]

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 Remembrancee, 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 pronoucned 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.[1]

Middle East[edit]

Israel[edit]

The barriers to the commemoration of the mass displacement of Palestinians in Israel, so-called Nakba laws.[3] See also Arab school in Haifa controversy.[4]

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.[5]

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

Memory Laws in international courts[edit]

European Court of Human Rights[edit]

Inter-American Court of Human Rights[edit]

Controversies and critique[edit]

Memory laws may impose limits on democratic freedoms of expression, association, the media, or on scholarly research.[1] Some memory laws allow state for ordering of public attitudes towards nationhood, ethnicity, race, religion, and class. Ivan Kurilla noted that while the first European memory laws "were propagated by left-wing political forces aiming to preserve the memory of oppressed groups and the crimes of their states", newer laws are increasingly "backed by pro-state right-wing politicians that seek to create a heroic national narrative and legislate away any doubt about the state’s historical righteousness".[2]

See also[edit]

References[edit]

  • Belavusau, U., & Gliszczyńska-Grabias, A. (Eds.). (2017). Law and Memory: Towards Legal Governance of History. Cambridge University Press.
  • Belavusau, U. (2015) "Memory Laws and Freedom of Speech: Governance of History in European Law", in A. Koltay (ed.), Comparative Perspectives on the Fundamental Freedom of Expression, Kluwer, 2015. 537-558.
  • Heinze, E. (2016). Beyond ‘Memory Laws’: Towards a General Theory of Law and Historical Discourse.
  • Gliszczyńska-Grabias, A. (2013). Penalizing Holocaust Denial: A View from Europe. In Global Antisemitism: A Crisis of Modernity (pp. 237–256). Brill.
  • Osiel, M. (2000). Why prosecute? Critics of punishment for mass atrocity. Human Rights Quarterly, 22(1), 118-147.
  • Rousso, H. (2002). The haunting past: history, memory, and justice in contemporary France. University of Pennsylvania Press.
  • Ristić, K. (2014). Imaginary Trials: War Crime Trials and Memory in Former Yugoslavia.
  • Sierp, A., & Wüstenberg, J. (2015). Linking the Local and the Transnational: Rethinking Memory Politics in Europe.

Notes[edit]

  1. ^ a b "First They Came for the Holocaust Deniers, and I Did Not Speak Out".
  2. ^ Kurilla, Ivan (August 2014). "The Implications of Russia's Law against the "Rehabilitation of Nazism"" (PDF). PONARS Eurasia Policy Memo No. 331.

External sources[edit]