GLISZCZYŃSKA-GRABIAS: Law and memory

Hanna Arendt warned that the fragile truth of historical facts was vulnerable not only to being forgotten but also to manipulation.[i] However, she probably did not mean the necessity to introduce so-called memory laws, which governments attempt to use to legally preserve the memory of the past.

The introduction of such legislation is strongly connected with the phenomenon of transitional justice, which involves a legal reckoning with fallen regimes and their officials. Examples of this type of regulations include lustration acts.

However, “memory laws” are a much broader category, encompassing a whole array of laws: from acts penalizing genocide denial, through bans on speaking ill of the state or bans on the use of symbols of totalitarianism, to parliamentary declarations of the legal qualification of a given event from the past. There is no clear definition of memory laws, their categorization, suggested in literature, is also far from rigid.

Despite this ambiguity, there is no doubt that the existence of memory laws impacts not only the legal situation of individuals and groups, but also – if not above all – shapes the historical narrative of a given place and community. These narratives are increasingly being written down in the form of criminal law provisions.

Holocaust denial – a lie different than any other?

Those who strongly oppose legally decreeing historical truth do not make an exception for regulations penalizing the propagation of Holocaust denial. As Timothy Garton Ash argues, a more efficient method for opposing the lies spread by David Irving (a prominent Holocaust denier) was confronting him with undeniable evidence of the existence of gas chambers during his court case against the American Holocaust historian, professor Deborah Lipstadt (who herself had also voiced support for the decriminalization of Holocaust denial) than his conviction and incarceration in Austria, thanks to which he was able to pose as a “martyr of free speech”[ii].

On the other hand, such optics overlook the essence of the problem of Holocaust denial: in the overwhelming majority of cases, this denial has anti-Semitic, racist roots, so it is to prevent the proliferation of such attitudes that is the reason for introducing legislation prohibiting such stances. Genocide denial may itself constitute a mechanism for stirring up hate and excluding minorities – stigmatizing them as liars who have fabricated their suffering.

Scholars who research the phenomenon of genocide and its precursory circumstances also argue that the denial of a crime is a risk factor for its repetition and constitutes one of the successive stages of the “genocide process”[iii]. Nevertheless, the current debate as to the criminalization of negationism in the Council of Europe continues to be riddled with disputes. The most significant issue of contention concerns legal bans on the denial of crimes other than the Holocaust. The problem was clearly visible in the frequently criticized judgment of the Grand Chamber of the European Court of Human Rights in Perincek vs. Switzerland.[iv]. In an act of legal contortion, the court judged it would be impossible to equate Holocaust denial with the denial of the massacre of Armenians committed by the Ottoman Empire at the beginning of the 20^th century.

Difficult dilemmas

In 2008, a letter signed by European intellectuals and scientists protesting the introduction of memory laws, known as the Appel de Blois, received a lot of attention. The authors of the letter asked legislators to recognize that “while they are responsible for the maintenance of the collective memory, they must not establish, by law and for the past, an official truth whose legal application can carry serious consequences for the profession of history and for intellectual liberty in general”[v].

The Appel de Blois pointed to one of the key issues in the debate on memory laws: the freedom of expression, including the freedom to conduct scientific research. The UN Human Rights Committee also draws attention to this aspect of such legal regulations and considers laws that prohibit the expression of an erroneous opinion or an incorrect interpretation of the past incompatible with the universal standard of protection of freedom of expression[vi].

It is worth adding that it was not coincidental that the appeal originated in France: in the recent years, French legislators have adopted probably the most extensive body of legal regulations of expression about history. Apart from the Gayssot Act, which criminalizes the public expression of Holocaust denial, there was also an act declaring the massacre of Armenians was a genocide, the Taubira Act (which identifies slavery as a crime against humanity as well as France’s participation and responsibility), and a law “recognizing the positive role of France’s presence abroad” – meaning the former French colonies – Algeria, Morocco, Tunisia, and Indochina.

Just this brief catalogue could be seen as sufficient proof of the complicated and controversial nature of most memory laws. It shows the lack of precision contained in their provisions, the arbitrary nature of the legal qualification of certain acts and the dilemma as to the period of time memory laws should cover: how far back into history should we reach in order to fulfill the task of repairing past injustices as postulated by the advocates of such laws? Another point of contention that causes strong opposition today are the existing and planned regulations intended to protect “the good name of the state and country”.

Most states and nations are not eager to admit their own faults and reckon with the painful past. However, it seems that only governments which are deeply troubled with discovering the past and lean towards nationalist and xenophobic tendencies feel such a strong need to decree testimonies of their own heroism.

A network of memory: Poland, Ukraine, Russia

Yet different complications arise at the juncture of conflicting memory laws introduced by countries in disagreement over the interpretation of their common past.

This is well illustrated by the example of Poland, Ukraine, and Russia. Russian law protects the memory of the heroism and victorious role of the Soviet army and its soldiers in World War II and prohibits the propagation of information presenting this role otherwise. Conversely, a Ukrainian legislator introduced regulations that declare the joint responsibility of Nazis and Soviets for World War II and protect the good name and honor of the heroes of the Ukrainian struggle for independence, including soldiers of the Ukrainian Insurgent Army.

From the point of view of the Polish state (both historical and contemporary), those memory laws are extremely problematic; the role of the Soviet Union in the invasion, occupation, and destruction of Poland as well as the Polish people during World War II is unambiguous.

In turn, the Ukrainian regulations that commemorate and hail as a foundation of the state’s national history (i.e. the struggle of the Ukrainian Insurgent Army) do not mention events like the Volhynia massacre, a stance which will not be accepted in Poland. Similarly, the Polish parliamentary declarations in the form of acts legally qualifying the events in Volhynia as genocide are rejected by the Ukrainian side.

It seems that these theoretical considerations have impact on the actual legal situation of individuals: the first judgements convicting people accused of desecrating the memory of the Great Patriotic War have already been passed in Russia[vii]. These regulations also impact the diplomatic relations between countries, deepening the divides between nations. What is most important from the protection of individual rights and freedoms perspective is that they are inconsistent with the international standards for the protection of freedom of expression. In the described cases above, it is difficult to maintain that the memory laws are meant to prevent conflicts or the proliferation of hatred on grounds of ethnicity or race; it is also difficult to argue they are supposed to protect the memory of the victims of past crimes – unless we understand this memory in an extremely selective way, as referring only to a strictly defined group of victims, determined through their nationality and belonging to a given community.

Dangerous memory games

Despite the aforementioned problems, memory laws are not only increasingly becoming features of the legal landscape but are also part of “memory politics” – the use of historical codes, myths, and figures of traitors and heroes in the struggle to gain citizens’ votes. In many ways, this is not a surprising phenomenon – governments usually claim the right to regulate the largest possible number of areas of social life, including ones that lie beyond the mandate given them in the general elections.

In their most dangerous forms, memory laws start to play the role of not only the guardians but also inquisitors of a strictly defined historical narrative. In this narrative “our” ancestors are featured solely as victims of evil and treachery and never as those who perpetrate or are complicit in the crimes of the past. When used in this manner, memory laws, instead of perpetuating the memory of the past, falsify it. They do not prevent the repetition of tragic events but constitute a threat of further misery.

Aleksandra Gliszczyńska-Grabias – doctor of law, Assistant Professor at the Poznań Human Rights Center at the Institute of Law Studies at the Polish Academy of Sciences, principal researcher in the Memory Laws in European and Comparative Perspective (MELA) project funded by the Humanities in European Research Area 2016-2019 grant, expert of the Council of Europe and member of the Academic Advisory Board for the Community of Democracies. Together with Uladzislau Belavusau she co-edited the book Law and Memory. Towards Legal Governance of History (Cambridge University Press, 2017)

The article was first published in “Res Publica Nowa” nr 3/2017 and translated into English with support from the Polish Ministry of Science and Higher Education’s research dissemination funds (contract no. 692/P-DUN/217).

Tr. Aleksandra Małecka

Tłumaczenie na język angielski artykułów z numeru kwartalnika “Res Publica Nowa” 3/2017  – zadanie finansowane w ramach umowy 692/P-DUN/217 ze środków Ministra Nauki i Szkolnictwa Wyższego przeznaczonych na działalność upowszechniającą naukę.

[i]           Hannah Arendt, Human Condition, University of Chicago Press, Chicago 1958, p. 232.

[ii]           Timothy Garton Ash, Free Speech: Ten Principles for a Connected World, Yale University Press, p. 158–159.

[iii]          Sévane Garibian, “Taking Denial Seriously. Genocide Denial and Freedom of Speech in the French Law”,

            Cardozo Journal of Conflict Resolution 2008, vol. 9, p. 488.

[iv]          Perincek vs. Switzerland, complaint no. 27510/08, judgment of the Grand Chamber of 15 October 2015.

[v]           The letter was published in the daily Le Monde on October 11^th, 2008. The English language version is accessible at https://web.archive.org/web/20081111031740/http://www.lph-asso.fr/actualites/42.html.

[vi]          General Comment No. 34 of the UN Human Rights Committee 2011, CCPR/C/GC/34.

[vii]          Commentary on the conviction of Vladimir Luzgin in the criminal trial for ‘rehabilitation of Nazism’, which he was supposed to commit by, among others, pointing to the fact that the Soviets attacked Poland together with the Nazis on September 1, 1939 under the Ribbentrop-Molotov pact. See online: https://www.ejiltalk.org/russias-supreme-court-rewrites-history-of-the-second-world-war/.

Gabriela  Rogowska