Memory Laws and Historical Justice: The Politics of Criminalizing the Past 3030949133, 9783030949136

Table of contents :
Contents
Notes on Contributors
Chapter 1: Mapping Memory Laws
The Emergence of Memory Laws
Memory Laws Beyond Western Europe
Memory Laws as Majoritarian Onslaught
The Politicization of Memory: From Spain to Latin America
Toward Historical Dialogue
Part I: European Bookends: Acknowledging Guilt and Confronting Denial
Chapter 2: French Laws for a Better Past
Invention of a Tradition
Changing the Past
Targeting the Holocaust Deniers
The Algerian War Was a War
The Genocide of the Armenians Was a Genocide
The Western Slavery
Colonialism, the Good Old Days
The Duty to Remember Versus the State of Law
Norms for What?
Chapter 3: (De) Criminalizing the Past: Spain’s Legal Response to History, Memory, and Historical Memory
Introduction: Spain Is Different—Or Is It?
A Brief History of Spanish Exceptionalism: Legal Remembering, Societal Forgetting, and the Hegemonic Heroic Narrative of the Transition
Spain’s Post-Millennial Memory Wars: A Battle of Legal Narratives
The 2007 Law of Historical Memory: Universal Rights, Particular Constraints
Back from the Dead: The PSOE Returns to Memory Law-Making
By Way of Conclusion: Spain and Europe’s Past and the Future of Democracy
Part II: WMDs and Memory Laws: Revisiting the Holocaust versus Soviet Occupation
Chapter 4: Polish Memory Laws and the Distortion of the History of the Holocaust
Holocaust Envy
Part 2: The “Institutes of State-Sanctioned History”
From Holocaust Envy to Holocaust Distortion to Holocaust Denial
Auschwitz—a lieu de memoire—a Polish lieu de memoire
Penalizing Independent Research
Chapter 5: Legislating Historical Memory in Post-Soviet Ukraine
Ukraine in the (Eastern) European Context
A Brief Overview of the History of Mnemonic Legislation in Ukraine since 1991
The De-communization Legislation of 2015
Dilemmas of Legislating History in Times of War
Conclusion
Chapter 6: Holocaust Remembrance, the Cult of the War, and Memory Laws in Putin’s Russia
Chapter 7: Protecting Memory or Criminalizing Dissent: Memory Laws in Lithuania and Latvia
Identifying Different Categories of Punitive Memory Laws in Europe
Placing Baltic Memory Laws in Context
Criminalizing Denial: Memory Law in Lithuania
Discussing Initial Case Law
Criminalizing Denial: Memory Law in Latvia
Criminal Investigations and Public Representation of Cases
Conclusions
Chapter 8: Criminalizing Denial as a Form of Erasure: The Polish-Ukrainian-Israeli Triangle
I
II
III
IV
V
VI
Part III: Memory Laws as Majoritarian Assault
Chapter 9: Memory Laws: The Continuation of Yugoslav Wars by Other Means
Memory Laws and the Wars of the 1990s
The Case of Croatia
The Case of Serbia
Back to World War II
Chapter 10: Communism Versus National Socialism: Legislation as a Tool of Selective Historical Narrative in Hungary
Introduction
Constitutional Basis: The Fundamental Law
Official Truth Revelation: The Committee of National Remembrance
Criminal Justice Responses: ‘Communist Crimes’ and the Use of Totalitarian Symbols
Concluding Remarks
Chapter 11: The Perils and Limits of Memory Laws: The Case of Israel’s “Nakba Law” (2011)
Theoretical and Historical Background
The Paradox of Memory Laws
Democracy as Justification and in Practice
Breaking Democracy
The Peril and Limits of the Nakba Law
Chapter 12: Memory Law and the Duty to Remember the “1994 Genocide Against the Tutsi” in Rwanda
Introduction
Establishing Rwanda’s First Memory Institutions: 1994–2000
Toward an Official Narrative of the “1994 Genocide against the Tutsi”: 2001–2010
Internationalizing the “1994 Genocide of the Tutsi”: 2010–Present
The Impact of Rwanda’s Memory Laws: The Cases of Kizito Mihigo and Victoire Ingabire
Conclusion
Index

Citation preview

Memory Laws and Historical Justice

The Politics of Criminalizing the Past Edited by Elazar Barkan · Ariella Lang

Memory Laws and Historical Justice

Elazar Barkan  •  Ariella Lang Editors

Memory Laws and Historical Justice The Politics of Criminalizing the Past

Editors Elazar Barkan School of International and Public Affairs Columbia University New York, NY, USA

Ariella Lang Institute for the Study of Human Rights Columbia University New York, NY, USA

ISBN 978-3-030-94913-6    ISBN 978-3-030-94914-3 (eBook) https://doi.org/10.1007/978-3-030-94914-3 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2022 Chapter 5 is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/). For further details see licence information in the chapter. This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Palgrave Macmillan imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

For Carl and Willow and For Lela, Nina and Gabe

Contents

1 Mapping Memory Laws  1 Elazar Barkan and Ariella Lang Part I European Bookends: Acknowledging Guilt and Confronting Denial  23 2 French  Laws for a Better Past 25 Henry Rousso 3 (De)  Criminalizing the Past: Spain’s Legal Response to History, Memory, and Historical Memory 45 Stephanie R. Golob Part II WMDs and Memory Laws: Revisiting the Holocaust versus Soviet Occupation  73 4 Polish  Memory Laws and the Distortion of the History of the Holocaust 75 Jan Grabowski 5 Legislating  Historical Memory in Post-Soviet Ukraine 97 Tatiana Zhurzhenko vii

viii 

CONTENTS

6 Holocaust  Remembrance, the Cult of the War, and Memory Laws in Putin’s Russia131 Nikolay Koposov 7 Protecting  Memory or Criminalizing Dissent: Memory Laws in Lithuania and Latvia167 Eva-Clarita Pettai 8 Criminalizing  Denial as a Form of Erasure: The Polish-­ Ukrainian-­Israeli Triangle195 Omer Bartov Part III Memory Laws as Majoritarian Assault 223 9 Memory  Laws: The Continuation of Yugoslav Wars by Other Means225 Dubravka Stojanović 10 Communism  Versus National Socialism: Legislation as a Tool of Selective Historical Narrative in Hungary251 Eszter Kirs 11 The  Perils and Limits of Memory Laws: The Case of Israel’s “Nakba Law” (2011)275 Yifat Gutman 12 Memory  Law and the Duty to Remember the “1994 Genocide Against the Tutsi” in Rwanda291 Erin Jessee and David Mwambari Index321

Notes on Contributors

Elazar Barkan  is a Professor of International and Public Affairs and the Director of the Human Rights Concentration at Columbia’s School of International and Public Affairs. His research interests focus on human rights and on the role of history in contemporary society and politics and the response to gross historical crimes and injustices. His books include Historical Dialogue and the Prevention of Mass Atrocities, an edited volume with Constantin Goschler and James E.  Waller (2020); Choreography of Sacred Spaces: State, Religion and Conflict Resolution, (edited book with Karen Barkey, 2014); No Return, No Refuge: Rites and Rights in Minority Repatriation (with Howard Adelman, 2011); The Guilt of Nations: Restitution and Negotiating Historical Injustices (2000); Claiming the Stones/Naming the Bones: Cultural Property and the Negotiation of National and Ethnic Identity, (an edited volume with Ronald Bush, 2003); and Taking Wrongs Seriously: Apologies and Reconciliation (an edited volume with Alexander Karn, 2006). Omer  Bartov is the John P.  Birkelund Distinguished Professor of European History at Brown University. Author of the prize-winning Anatomy of a Genocide: The Life and Death of a Town Called Buczacz (2018), which has been translated into multiple languages, Bartov has authored eight monographs and several edited volumes, most recently Israel-Palestine: Lands and Peoples (2021). His forthcoming book is titled Tales from the Borderlands: Making and Unmaking the Past.

ix

x 

NOTES ON CONTRIBUTORS

Stephanie  R.  Golob  is Department Chair and Associate Professor of Political Science at Baruch College, CUNY, where she also serves as the Director of the Initiative for the Study of Latin America (ISLA). She is also Faculty in the PhD/MA Program in Political Science at The Graduate Center, CUNY. Her essays on the Pinochet Case were awarded the Frank Cass Prize by the journal Democratization, and she is a member in an international research team based at the Spanish National Research Council (CCHS-CSIC) studying the politics of memory related to mass grave exhumations in Spain in comparative perspective. (https:// politicasdelamemoria.org/) Jan  Grabowski is Professor of History at the University of Ottawa. His  research includes the issues surrounding the extermination of the Polish Jews as well as the history of the Jewish-Polish relations during the 1939–1945 period. He is the author of several monographs, including Hunt for the Jews: Betrayal and Murder in German-Occupied Poland (2013) which won the Yad Vashem International Book Prize for 2014. Grabowski has recently completed a project dealing with the involvement of the Polish “Blue” and criminal police in the Holocaust. His forthcoming research focuses on the open ghettos in the Generalgouvernement. In 2020, Grabowski was named a Fellow of the Royal Society of Canada, and a Distinguished Fellow at the Institut für Zeitgeschichte in Munich, Germany. Other academic honors include the 2019 Arie van Mansum Award for Excellence in Holocaust Education and the 2014 Faculty of Arts Professor of the Year Award. Yifat Gutman  is a Senior Lecturer in the Department of Sociology and Anthropology at Ben-Gurion University of the Negev. She holds a PhD in Sociology from the New School for Social Research in New York (2012). Her research focuses on memory activism and reconciliation in and after ethnonational conflict, as well as memory laws in comparative perspective. She is the author of Memory Activism: Reimagining the Past for the Future in Israel-Palestine” (2017) and co-editor of the volume Memory and the Future: Transnational politics, ethics and society (Palgrave Macmillan, 2010). Erin Jessee  is Senior Lecturer in History at the University of Glasgow. Her research uses oral historical and ethnographic methods to engage with people’s diverse experiences of genocide and related mass ­atrocities, especially Rwanda, where she has spent over a decade working closely with

  NOTES ON CONTRIBUTORS 

xi

Rwandans from different sides of the conflict, and from varied socio-­ economic, regional, religious, and political backgrounds. She is the author of Negotiating Genocide in Rwanda (2017) and co-­editor of Researching Perpetrators of Genocide (2020). She has written peer-reviewed articles with Medical History, Memory Studies, Conflict and Society, Oral History Review, and History in Africa, among others. Eszter  Kirs  is Associate Professor at the Department of International Relations of the Corvinus University of Budapest since 2016. From 2003, she has been lecturing on international law and human rights at various academic institutions. She has been a legal officer of the Hungarian Helsinki Committee since 2013. From 2010 to 2015, she worked for a defense team at the ICTY.  She was a Fulbright visiting researcher at the Columbia Law School in 2009–2010 and a visiting lecturer at the University of Minnesota Law School in 2019. Nikolay Koposov  (Emory University/Georgia Institute of Technology) is a scholar of modern European intellectual history, historiography, and historical memory. He has authored six books including De l’imagination historique (2009), Pamyat’ strogogo rezhima: Istoriya i politika v Rossii (Strict-Security Memory: History and Politics in Russia) (2011), and Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (2017). Ariella Lang  is a Lecturer at the Institute for the Study of Human Rights at Columbia University, where she also serves as  Associate Dean of Academic Affairs. Her research interests include Holocaust and  genocide studies, historical memory, and transitional justice. Among other scholarly projects, Lang serves as editor for the Historical Dialogues Network; she was project author for the digital Mapping Historical Dialogue Project, and she served as guest editor for the 2019 volume, “Dealing with the Past: Mapping the Edges of ‘Historical Dialogue’,” published in Kritika Kultura. David Mwambari  is Lecturer in African Security and Leadership Studies at the African Leadership Centre at King’s College London (UK). He is a Meaning-making Research Initiative (MRI) fellow at The Council for the Development of Social Science Research in Africa (CODESRIA). He is also a core faculty at the Oxford Consortium for Human Rights. His research seeks to contribute to leadership, peacebuilding and security studies; the politics of knowledge production in sensitive contexts; and memory studies.

xii 

NOTES ON CONTRIBUTORS

Eva-Clarita  Pettai is a senior research associate at the Imre Kertész Kolleg, University of Jena (Germany) and editor of the Cultures of History Forum. She has previously worked at the University of Tartu, Estonia, and written extensively about the politics and memory and transitional justice processes in the post-communist region, especially the Baltic states. In 2015, her book Transitional and Retrospective Justice ion the Baltic states (co-authored with Vello Pettai) won the Baltic Assembly Prize for Literature, the Arts and Science. Henry Rousso  is senior researcher at the Centre national de la Recherche scientifique, member of the Institut d’histoire du temps présent, which he chaired from 1994 to 2005. He has been teaching in many French and foreign universities (Institut d’Études Politiques de Paris, École normale supérieure de Cachan, University of Paris I Sorbonne, and at Harvard University, University of Iena, Yale  University, Columbia  University, University of La Plata, Texas A&M University). His works focus on the history and memory of traumatic pasts, especially World War II.  In February 2019, he was appointed by the French Government to conceive a Museum and Memorial on terrorism. His most recent books are The Latest Catastrophe: History, the Present, the Contemporary (2016); and Face au passé: Essais sur la mémoire contemporaine (Paris, 2016). Dubravka Stojanović  is Professor of History in the Faculty of Philosophy, University of Belgrade, where she teaches contemporary history. Her research interests include processes of modernization and Europeanization in South East Europe, the  history of ideas, processes of democratization in Serbia, the history of urbanization, the history of Belgrade, the relation between history and memory, and presentations of history in history textbooks. She is a consultant at the United Nations, working on the issues of history and memory and misuses of history in education. Tatiana Zhurzhenko  teaches East European Politics at the Department of Political Science, University of Vienna. Her research interests include memory politics, borders and borderland identities as well as gender politics and feminism in Ukraine and the post-Soviet space. Her work was published in Europe-Asia Studies, Nationalities Papers, East European Politics and Societies (EEPS), and other academic journals. She is a co-­editor (together with J. Fedor, M. Kangaspuro, and J. Lassila) of the collected volume War and Memory in Russia, Ukraine and Belarus (Palgrave 2017).

CHAPTER 1

Mapping Memory Laws Elazar Barkan and Ariella Lang

Memory laws are a relatively new category of laws and regulations that aim to explicitly enable the government to impose its views of the past with the goal of censoring what it sees as antinationalism, defamation, distortion, or denial of criminal behavior toward its own people. This volume explores memory laws in a variety of different historical, geographical, and political contexts. As a mechanism to confront the past and impact contemporary politics, memory laws were initially inspired by the desire to offer historical clarification and even justice to victims. Perhaps aspirational, memory laws also sought to make amends for the past in some way, by seeking to contribute to the reconciliation of groups previously involved in mass violence and extreme atrocities against one another. Germany provides the paradigmatic example of such objectives. But memory laws also emerged from an attempt to repress demands for redress and whitewash mass atrocities, as was the case in Turkey’s criminalizing offenses against the nation.

E. Barkan School of International and Public Affairs, Columbia University, New York, NY, USA A. Lang (*) Institute for the Study of Human Rights, Columbia University, New York, NY, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_1

1

2 

E. BARKAN AND A. LANG

The proliferation of memory laws in the 1990s point to a larger paradigm shift in the focus of human rights on the “right to history,” and “the right to truth,”1 on the one hand and the “victim-centered approach” on the other. These laws are part of the flourishing of human rights and especially demands for redress for past violations—a growth that has included transitional justice as a possible mechanism for responding to human rights violations.2 As a political phenomenon, however, memory laws are an officially sanctioned narrative about the past, a framing of history that bridges present politics in the countries that legislate them and that uses the memory of past violence to justify the current national identity. In tracing the spread of memory laws from their origins in Western Europe to their adoption by countries around the world, it is clear that memory laws have since become a widespread tool employed by governments with a nationalist, majoritarian outlook. Indeed, as this volume illustrates, in countries that move from pluralism to majoritarianism, memory laws serve as the canary in the proverbial coalmine, serving as a tentative forerunner to more nationalist, less democratic measures, and the expunging of pluralist ideals. In this sense, the political element of memory laws deserves careful consideration—something that the legal analysis that has recently emerged in the examination of memory laws has largely overlooked. But before considering the genesis of memory laws, a few clarifications may be useful. The term memory laws is often used to refer to two distinct forms of regulations: one is the establishment of a public or official act of memory with regard to a certain set of historical facts. So, for example, setting an official date of commemoration, or recognizing in an official capacity that a specific event is a genocide. These are both public acts that, while certainly having their own set of interpretative baggage and political implications, do not censor speech and do not have a punitive component attached to them. This type of policy of commemoration is widespread and is largely not part of this volume. The other form of regulation is just that, a law that makes it illegal to deny the occurrence of particular horrific historical events, or that “imposes the imperative, ‘we need to remember in

1  The terms “right to history” and “right to truth” refer to the right that individuals have to learn the truth about past human rights violations. 2   Elazar Barkan, “Historical Dialogue and the Prevention of Atrocity Crimes,” Reconstructing Atrocity Prevention, eds. Sheri P. Rosenberg, Tibi Galis et al. (Cambridge UP: 2015): 175–195.

1  MAPPING MEMORY LAWS 

3

a certain way.’”3 Not adhering to this particular interpretation or engaging in denialism (genocide denial of a particular event) is seen by the government as criminal and includes punitive measures.

The Emergence of Memory Laws Laws of memorialization emerged in this era specifically with relation to the Holocaust.4 The Gayssot Law that was passed in France in 1990 made Holocaust denial in France a crime and is typically pointed to as the first such law, declaring Holocaust denial punishable by a prison term and a fine. It provided a framework for numerous other such laws in France and elsewhere across Europe. The intellectual background of memory laws intertwines two contradictory forces: on the one hand, there is the ambition to go beyond empiricism, to embrace the postmodernist ethos that challenges the very existence of realism. But such an impulse denies space to any fixed perspective in the name of relativism and subjectivity. On the other hand, the increasing validity of victims’ perspectives are part of the growing commitments to human rights, which often reject challenges to victims narratives as denialist or racist. But historical relativism can go only so far: not everything can be subject to doubt. The veracity of World War II is not up for debate, and contesting the gravity of the war crimes and atrocities of this period is not a matter of opinion. There is, in other words, an empirical base for historical narratives, even if interpretations vary. It is easier to recognize the truth (reality) empirically beyond the subjectivity of the observer, but how to delineate it in the abstract is much more difficult. This complexity is amplified by the ethics of embracing or confronting victims’ narratives, and in considering how to integrate the skepticism of postmodernism with the increasing role and respect accorded victims in confronting, remembering and dealing with the past. Can a victim of mass atrocities, of torture, be doubted in the name of theoretical relativism? This question is at the core of the tension embedded in memory laws and the predicament of constraining freedom of speech. But memory laws are not theoretical stipulations; as this volume illustrates, they differ in each

3  Emanuela Fronza, “The Punishment of Negationism: The Difficult Dialogue between Law and Memory,” Vermont Law Review 30 (2005–2006): 609. 4  Article 301 of Turkey’s new penal code, which was implemented in June 2005, provides something of an exception to this trend, and is discussed below.

4 

E. BARKAN AND A. LANG

case, depending on local circumstances, historical context, and the unique ways in which collective memory is being politicized. Consider for example the context of the Gayssot Law. While a judgment of court is final (post appeals), historical determination is always in principle subject to revisions and open to challenges from newly written histories. Yet the delineation between perspective and reality, and the finality of historical narrative, have created a separate space when the debate involves the Holocaust, the existence of which is beyond debate, irrespective of new histories or interpretations. Memory laws have to be understood within the intellectual and political context in which this fact itself has been challenged. One early example of these forces is illustrated by the statement made by a group of French historians published in 1979 in Le Monde in response to the growing trend of Holocaust denial in France: Everyone is free to interpret a phenomenon like the Hitlerian genocide according to his philosophy … everyone is free to apply to it one or another means of explication; everyone is free, up to the limit, to imagine or dream that these monstrous facts did not take place. They unfortunately did take place, and no one can deny their existence without outrage to the truth … This is the obligatory starting point of any historical inquiry on the subject … it is impossible to have a debate on the existence of the gas chambers.5

These historians are clearly asserting not simply the limits of historical postmodernism and the supremacy of historical reality—the gas chambers are not a matter of legitimate historical debate—but they are also articulating the moral obligation inherent in their acceptance of this truth. The language here is striking, both as a narrative on Holocaust representation, but also in relation to the memory laws that come to the fore a decade later. And this brings us to the more immediate motivation for the Gayssot Law of 1990, namely the desecration of a Jewish cemetery in Carpentras, in Southern France, where more than 34 tombstones were severely damaged and a body was exhumed and mutilated. This moment was seen as the first openly anti-Semitic act in the country after World War II, and it came amid a broader national debate about racism and tolerance. Apart from the huge demonstrations that coalesced in the period following the cemetery incident, the ultimate result was this law, which was seen as a 5  Cited in Berel Lang, “The Representation of Limits,” Probing the Limits of Representation: Nazism and the “Final Solution,” ed. Saul Friedlander (Harvard UP: 1992): 312–313.

1  MAPPING MEMORY LAWS 

5

means of responding to Holocaust denialism and as a means to promote racial tolerance. The law might be seen as a legal extension of the stance put forth in the 1979 Le Monde editorial. As the lawyer Arno Klarsfeld writes, “legislation must set the moral boundaries of such matters to fight against genocide denial.”6 Not only does Klarsfeld here suggest a moral purpose but also that historical limits must be codified by the state. Supporters of memory laws have elsewhere argued that such laws assuage the pain that survivors experience in the face of the assault that denialism represents to their lived experience, quite apart from history itself. In other words, memory laws against Holocaust denial act as an implicit acknowledgment of the survivor experience, possibly a form of redress, and arguably, an act of national repentance—a desire to condemn past actions, to accept responsibility, to atone for the past, and to ensure that such actions do not occur again. But as Henry Rousso writes in his chapter, the Gayssot Law did more than that: it essentially changed the spirit of what memory laws are meant to do, both in terms of their ability or value as a means to frame history, and also as a means to look backward and to remember the past. In exploring the memory laws that were proposed in the early 2000s, Rousso argues that the laws themselves represented a crisis of the Republican model— one in which memory laws became a means for offering redress to immigrants who had come from former colonies who did not see themselves as included in the national narrative of Republican France. One important precursor to the French legislation is what is now known as Article 301 of the Turkish Penal Code, previously known as Article 159 of the 1926 legislation, which covered the same crime of offending the state. Amended several times, it nonetheless remains the core of the Turkish state national narrative, and in that sense, is very different from Holocaust denial laws, and closer to more recent laws that exalt the nation and its historical pride. These two very different sources will become clearer below, but it should be stated upfront that much of the confusion surrounding memory laws stems from their origin. While some memory laws protect nationalist ideology, often perpetrators’

6   Cited in Raffi Wartanian, “Memory Laws in France and their Implications: Institutionalizing Social Harmony,” www.humanityinaction.org/knowledge_detail/ memor y-­l aws-in-france-and-their-implications-institutionalizing-social-harmony/, November 2009, accessed August 20, 2021.

6 

E. BARKAN AND A. LANG

history aims to redress victims and their descendants. The ethics of memory laws are often determined by their substance and context. Understanding these early examples of memory laws as an act of reparation toward Jewish Holocaust survivors specifically, or even toward the Jewish community in France more broadly, is one way of understanding the rationale for establishing memory laws such as the Gayssot Law. Rather than a claim that the Holocaust was a unique expression of violent anti-­ Semitism, another way of considering memory laws would be to analyze them in the context of the evolving representation of the Holocaust as symbolizing a broader view of racism and crimes against humanity. In this context, denialism, and the impulse to establish memory laws as a response to Holocaust denial, might be interpreted less as a form of penance, and more as a statement about the identity and ethics of the post-World War II state. As Daniel Levy and Natan Sznaider note, it is the “abstract nature of ‘good and evil’ symbolized by the Holocaust that contributes to the extra-territorial quality of cosmopolitan memory and the consolidation of new ethical norms.”7 Put differently, one might consider the universalization of the Holocaust, the idea, as Giorgio Agamben puts forth, that while Auschwitz has an undeniable historical specificity all its own, the camp also represents a paradigm, a lens through which one can understand, analyze, and reframe the dangers of modernity and the potential for violence of the modern state.8 If, as Nikolay Koposov writes, the rise of a democratic culture of memory was inspired by a recognition and celebration of “history from below” and a view on the “victimization in the past,”9 the memory laws being passed in western Europe appear as a symbol of opposition to the political structures that were in place and created a framework in which genocide was perpetrated. In this sense, memory laws can be understood to reflect not only a mea culpa against anti-Semitism per se, but also a stance against the political and national structures that were in place and enabled these massive crimes to be executed.10 One sees in this r­ emembrance 7  Daniel Levy and Natan Sznaider, “The Institutionalization of Cosmopolitan Morality: the Holocaust and Human Rights,” Journal of Human Rights 3.2 (2004): 144. 8  See Giorgio Agamben Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-­ Roazen (Stanford, CA: Stanford UP, 1998). 9  Nikolay Koposov, Memory Laws, Memory Wars: the Politics of the Past in Europe and Russia (Cambridge: Cambridge UP, 2017) 44. 10  David M.  Seymour, “Holocaust Memory: Between Universal and Particular,” The Holocaust in the Twenty-First Century: Contesting/Contested Memories, eds. D. Seymour and M. Camino (New York: Routledge, 2017) 19.

1  MAPPING MEMORY LAWS 

7

and representation of the Holocaust the phenomenon that Michael Rothberg terms multidirectional memory, and the ways in which Holocaust memory has informed how other victims’ histories are understood and framed, in large part because of its salience to broader questions about identity, historical memory, and violence.11 Memory laws present an example of multidirectional memory, as this volume illustrates. Such laws were initially passed to address Holocaust denial, subsequently inspiring—well intentioned or not—laws that addressed other national contexts where historical memory, identity, and violence have led to a desire to inform, control, and censor public consciousness with regard to these events. Multidirectionality goes beyond informing victims of other conflicts of potential redress; it also breeds nationalistic and xenophobic legislation in majoritarian systems. Similar to authoritarian regimes that are grandstanding on their records of human rights and participating in international human rights institutions, these states abuse the ethics that inform legislation against Holocaust denial in order to push their own nationalist agenda.

Memory Laws Beyond Western Europe As the European Union has expanded, memory laws have become an increasingly popular tool, both among Western European countries, but also, and particularly, in Central Eastern European (CEE), former Soviet bloc countries. The experience of Central Eastern Europe during World War II and post war differed markedly from Western Europe. In the West, it took time for societies and institutions (including governments) to recognize the role of collaborators with the Nazi occupier, but the Holocaust and the policy of “never again” have come to be presented as a fundamental consensus identity. In contrast, the memory of the Soviet domination after 1945 in CEE countries led to different national memories of atrocities: Nazi collaborators were viewed primarily as fighting the Soviets, and were thus often seen as subterranean national heroes.  The  narrative of local  participation in the killing of the Jews—alongside local support of the Nazis—was ignored and repressed, and national memory privileged the fighting against the Soviets. The expansion of the European Union to the East thus challenged Western Europe’s shared memory  of unified opposition to Nazism. In this context, memory laws are legislated as 11  Michael Rothberg, Multidirectional Memory: Remembering the Holocaust in the Age of Decolonization (Stanford, CA: Stanford UP, 2009) 6.

8 

E. BARKAN AND A. LANG

questioning European memory itself. Instead of a unified memory, the Holocaust looms over European identity as a matter of debate and anxiety. An implied competition over European identity is reflected in the post-­ modern space of the ‘New Europe.’ The memory of the Holocaust in Western Europe is that of a moral stance—an anchor—that marks the transition from modernity to post-modernity, from national sovereignty to interconnected globalization.12 The universalism of these goals, however, has been challenged in CEE European Union countries, where the memory of communism and the atrocities of Soviet authoritarianism, connected as they are to narratives of national victimhood, prevail. Under populists ruling several countries, including Poland, Hungary, Ukraine and Lithuania, memory laws have been passed that seek to consolidate a national narrative of suffering from both Nazism and communism, but that in practice underscore Soviet violence as the worst offence, while diminishing the Nazi genocide. The result has been a reframing of historical responsibility for collaborating with Nazi occupation forces, and participating in violence against the Jews and other victims during the Holocaust, as a form of national heroism. That is, the nationalist governments in these countries have sought, in promoting memory laws, not only to invent a historical tradition that celebrates the nation and its past, while whitewashing crimes, but also to extend that repression to the rights of minorities in the present. Thus, for example, Poland has attempted to criminalize assertions that “the Polish nation” was complicit in the Holocaust, as the 2021 trial against Jan Grabowski and Barbara Engelking illustrates. The two scholars were accused of defamation for a survivor interview that was included in their scholarly work, Night Without End: The Fate of the Jews in Selected Counties of Occupied Poland, in which the interviewee suggested that a wartime Polish mayor was complicit in a Nazi massacre of his town’s Jews.13 The recently announced verdict in the case, which ordered Grabowski and 12  Levy and Sznaider, “The Institutionalization of Cosmopolitan Morality: the Holocaust and Human Rights,” 155. 13  See Andrew Higgins, “A Massacre in a Forest Becomes a Test of Poland’s Pushback on Wartime Blame,” New York Times, February 8, 2021, www.nytimes.com/2021/02/08/ world/europe/poland-massacre-jews-nazis-blame.html, accessed August 20, 2021. For the Polish Israeli conflict over memory and rhetoric, the diplomatic and civil society crises, see Yifat Gutman and Elazar Barkan, “The Challenge of Historical Dialogue to Politicians and Diplomats: Israel and Poland Confront Holocaust Memory” POLIN: Studies in Polish Jewry 35 (2021).

1  MAPPING MEMORY LAWS 

9

Engelking to apologize to a relative of the aforementioned mayor for libel, is part of a broader campaign of Poland’s current government “to silence the legitimate work of Holocaust scholarship in favor of protecting the supposed interests of the Polish state for which the narrative of Polish innocence during the Holocaust plays an important role.”14 This effort, namely how national discourses about the past in Poland have increasingly sought to stress the citizenry’s foremost opposition to communism, their victimization at the hands of the Nazis, and an emphatic denial of any collaboration with Nazis in their annihilation of Polish Jewry, is likewise the subject of Grabowski’s chapter in this collection. In her discussion of memory laws in Ukraine, Tatiana Zhurzhenko likewise focuses on the recent past, namely the post-Maidan era, considering the 2015 “de-communization laws” within the broader picture of the country’s post-Soviet transition. Proponents of these laws justify the legislation of historical memory as a tool that will allow the country to deal with its Soviet past, while reinforcing a sense of national identity; critics understand the new legislation to be anti-democratic, threatening critical scholarship and freedom of expression. In a country where national sovereignty and democracy have long felt  fragile  and, as this text goes to print, are under violent attack, with Putin using World War II to justify his violent acts, these memory laws present a particularly difficult set of challenges. In her chapter on memory laws in the Baltic States, Eva Clarita Pettai explores two memory laws in Lithuania and Latvia (Estonia has yet to pass such laws), and the implications and focus of such laws in post-­ Soviet bloc countries that are now part of the European Union. Complicating the discussion is the fact that both of these countries adopted punitive memory laws following the 2008 Framework Decision on Combating Racism and Xenophobia that the European Union passed, suggesting once again the multidirectional nature of Holocaust memory. Hungary’s current government has similarly promoted a revisionist view of the past in which Hungary is portrayed as a protector of Christian Europe. As Ester Kirz argues in her chapter, Orbán’s government has reinforced memory laws that criminalize the denial of both communist and Nazi crimes, but in such a way that reinforces a history of the past that leaves no space for a critical examination of historical injustices committed 14  Jonathan Brent and Jan Grabowski, “When Writing History Becomes a Crime,” Tablet, February 25, 2021, www.tabletmag.com/sections/news/articles/poland-holocaust-­ history-­jonathan-brent-jan-grabowski, accessed August 20, 2021.

10 

E. BARKAN AND A. LANG

in the name of the state or by state actors. In her essay, Dubravka Stojanovic examines the shifting memory of World War II in the Balkan context, and how the official narrative of World War II was used to justify the crimes committed in the Balkan Wars of the 1990s. Nikolay Koposov describes a similar phenomenon in his chapter on Russia. That is, if memory laws in Western Europe were inspired by the need to counter Holocaust denialism, and the desire to denounce the political and historical realities that created the possibility of the Holocaust, the criminalization of history in the east transformed these universalist principles to serve other, more nationalist, political goals. In Russia, nationalism has led to the prioritizing of Soviet victory over the Nazis as the heroic legacy of the nation, and to the whitewashing of crimes committed under Stalin. In light of the unprovoked 2022 Russian war against Ukraine, it is clear that the balance between the Holocaust and Soviet/ Russian crimes is bound to change again, and with this evolution, the division between Western and Eastern European attitudes toward the Holocaust and genocide in Eastern Europe will once again be rewritten. In and of itself, this rewriting provides evidence of the ways in which politics determines the historical narrative  that is  being written.  In other words, the typology of memory laws continues to shift dramatically: in countries such as Germany and France, such laws are passed15 in an effort to acknowledge responsibility and guilt for crimes committed in the past and to promote a pluralist view of society. In countries such as Russia and Ukraine, memory laws are passed to invent a tradition of a glorious national history, and in so doing to repress the experiences of minorities and the historical reality of violence. Indeed, it is useful to consider memory laws within the broader context of the human rights movement, which was born in the shadow of the Holocaust with the passage in 1948 of the Universal Declaration of Human Rights and the adoption of the Genocide Convention, both of which symbolized a global commitment to prevent similar crimes in the future. The fourth Geneva Convention (1949) and the Refugee Convention (1951) reflect an expansion of the human rights movement in subsequent years, and the establishment of memory laws a generation later in Western Europe can be understood as part of the extension of human rights during 15  The French law on colonialism deserves particular mention as a counter example. Passed by the National Assembly in 2005, the law required high school teachers to teach the “positive values” of colonialism. The outcry against the law by prominent historians and others led to its repeal in early 2006.

1  MAPPING MEMORY LAWS 

11

the 1990s. Governments that took a stance against Holocaust denial were part of the trend to embrace human rights. In Germany and France, both non-majoritarian countries, memory laws thus serve as an effort to ensure that the framework that allowed for the Holocaust would be prevented in the future. Such memory laws were part of a broader embrace of the commemorative activities, primarily evoked by the memory of World War II, that emerged in the 1990s. This surfeit of memory included countries that did not legislate memory laws, underscoring the increased importance of historical memory in the political and cultural life of the nation. The worldview that promoted redress enjoyed proliferation in the 1990s, and as such, it was taken up by Central and Eastern Europe, but in these regions, the motives and goals of memory laws are turned upside down. As Koposov describes in his chapter, aggressive nationalism escalated especially after the end of the Cold War. Koposov links this phenomenon to the rise of memory driven by competition among countries, which created a political climate where memory laws became used to promote nationalist agendas. In CEE countries, in Russia, and elsewhere, nationalist governments established majoritarian, populist positions leveraging memory laws to undercut minority rights and democratic pluralism. The privileging of narratives of national suffering on the one hand and the repression of any acknowledgment of state violence on the other created a framework that was hostile to the language of human rights. This book was written before Russia's invasion of Ukraine. And while it is not our goal to predict the outcome, it is clear that the trends described herein will be consolidated further, with Russian atrocities becoming the dominant national memory in CEE countries and the nationalists’ narrative being reinforced and uncontested.  And thus, while memory laws may have begun as an effort to frame pluralistic identity, to accept responsibility for historical crimes, to promote an ethics of responsibility and to embrace the wider social and political discourse of human rights, the expansion of memory laws to majoritarian states is inspired by a very different objective. Indeed, the use of memory laws to promote nationalist narratives emulates these states’ attacks on human rights, in which the language of human rights is appropriated, but the substance is transformed to reflect anti-­ democratic goals that reject pluralism and accountability. Memory laws are critical pieces in an informal historical dialogue that is expanding to include agonistic conflict resolution.16 16  Historical Dialogue and the Prevention of Mass Atrocities, eds. Elazar Barkan, Constantin Goschler, James Waller (New York: Routledge, 2020).

12 

E. BARKAN AND A. LANG

Memory Laws as Majoritarian Onslaught The establishment of memory laws as a step toward majoritarian, populist rule is not limited to CEE countries  and Russia. In places as diverse as Turkey and Israel, Bangladesh and Rwanda—despite the fact that the Tutsi are a governing minority—, memory laws have likewise been established as a means to threaten ethnic minorities and to promote a nationalist political identity of the state that is in line with the majoritarian positions of the party in power. And thus, if we are to map out a typology of memory laws, we must distinguish between those countries who pass memory laws to acknowledge their own criminal past and to protect against the defamation of minorities, and countries who promote memory laws in order to repress minorities and invent a cleansed nationalist tradition. In these latter countries, the rise of memory laws corresponds to a rise and accentuating of nationalist rhetoric and majoritarianism, with memory laws often becoming a source and a manifestation for national conflicts. Returning to the example of Turkey, the implementation of a new penal code in 2005 initially sparked hopes that the country would put forth more robust protections for the constitutional rights of Turkish citizens. But Article 301, which made it a crime to insult “Turkishness” or publicly denigrate the Turkish government, continues to curtail freedom of expression in the country, and has been used by nationalists to undermine the cultural and political rights of civil society and of ethnic minorities. As Jahnisa Tate writes in her analysis of the updated penal code, “the history of Turkey and the establishment of the Turkish identity with the presence of so many different ethnic groups has led some Turkish citizens to desire a democracy and others to desire a more authoritarian regime that will protect traditional Turkish identity. This authoritarian regime is what drives the desire to keep Article 301 intact.”17 While framed in legal terms, Article 301 speaks to historical tensions and violence toward ethnic ­minorities in Turkey, and the historical implications of this law are important to consider. Hrant Dink and Orhan Pamuk were both prosecuted for calling the Armenian genocide by its name. Dink was murdered by Turkish nationalists as a result. Unlike Dink, Pamuk never actually used the term ‘genocide’ in his comments. Nonetheless, his statement that “‘a million 17  Jahnisa Tate, “Turkey’s Article 301: A Legitimate Tool for Maintaining Order or a Threat to Freedom of Expression?” Georgia Journal of International and Comparative Law 37.1 (2008): 185.

1  MAPPING MEMORY LAWS 

13

Armenians and 30,000 Kurds were killed in this country and I’m the only one who dares to talk about it,”18 was seen as challenging the official Turkish narrative regarding the number of victims of state violence during World War I, an interpretation that led to death threats and contributed to Pamuk’s decision to emigrate. In this sense, the historical denial of acknowledging the crime of the Armenian genocide that is protected by Article 301 in and of itself constitutes a new stage in this story of collective violence against Armenians and their historical presence in Turkey. Fatma Muge Gocek speaks to this evolution in Denial of Violence, in which she traces the assassination of Dink to a more general increase in state condoned violence against non-Muslims residing in Turkey. Dink gave voice to a history of violence that the state sought to repress, censor, and deny, and in so doing, he himself became “a public target of violence, the violence that had been so often practiced by the republican leadership.”19 As Gocek argues, there is an explicit connection between Turkish denials of historic violence against the Armenians and the law that enshrines such censorship. Turkey’s Article 301 thus offers a relatively early example of how memory laws can be used to promote a nationalist and authoritarian agenda, and suppress minority voices. It did so by preserving a version of this law that had existed previously, and by employing it vigorously: in 2006, 1522 individuals were tried under Article 301 and another 1189 were tried in the first months of 2007 alone.20 In her chapter on memory laws in the Israeli context, Yifat Gutman discusses the 2011 “Nakba Law,” which prohibits the commemoration of the displacement of Palestinians during the 1948 War. This memory law similarly suppresses the historical memory of a minority from entering the public discourse, once again illustrating the tension that exists between the memory promoted by the state and the political concerns of the ruling party, versus democratic law in Israel. In his chapter, Omer Bartov considers historical memory in Israel in a broader context, examining conflicting historical narratives across national discourses as well as within them. In considering the memory laws, denialism, and attempts to establish official 18  Maureen Freely, “I stand by my words. And even more, I stand by my right to say them…’” The Guardian, October 23, 2005, https://www.theguardian.com/world/2005/ oct/23/books.turkey, accessed August 20, 2021. 19  Fatma Müge Göçek, Denial of violence: Ottoman past, Turkish present, and collective violence against the Armenians, 1789–2009 (Oxford: Oxford UP, 2015) 421. 20  Cited in Tate, “Turkey’s Article 301: A Legitimate Tool for Maintaining Order or a Threat to Freedom of Expression?” 184.

14 

E. BARKAN AND A. LANG

narratives of remembrance in Israel, Ukraine, and Poland, Bartov argues that the memory laws in these three countries are linked by the goals of the laws themselves. That is, in all three cases, memory laws are as much about erasing inconvenient truths as they are about countering denialism. These political missives are paralleled in communal memory, which ensures a similar pattern of remembrance and erasure. In their chapter on the Rwandan genocide, Erin Jessee and David Mwambari examine the evolution of Rwanda’s memory laws, from the emergence of Rwanda’s first memory institutions in the years immediately succeeding the genocide, to the emergence of an official narrative that has been, and continues to be, asserted under current Rwandan President Paul Kagame. As they argue, the increasingly politicized nature of Rwandan memory laws has resulted in a shift away from efforts to commemorate the genocide in ways that are inclusive of Tutsi, Hutu and Twa victims, reinscribing ethnic divisions by focusing only on Tutsi victims of the genocide, and suggesting an implicit form of denialism with regard  to non-Tutsi victims of the genocide. Rwanda’s memory laws are significant for a number of reasons. First, it should come as no surprise that, in response to criticism on the part of the international community regarding its denialism laws, Rwanda’s then-prosecutor-general reminded Western critics of the origins of such memory laws, highlighting European Holocaust denial laws as a model.21 Indeed, while Kagame’s actions raised some concerns among the international community regarding the anti-democratic path of his government, the United Nations and many within the international community remained silent, embracing Kagame because of the economic prosperity he promoted, despite his increasingly draconian policies. And this brings us to the third point, namely that Rwanda illustrates the ways in which so often memory laws serve as a first step toward a more repressive, majoritarian government. That is, rather than transitioning into democracy, Rwanda provides an example of a government that is ­transitioning into dictatorship, and its memory laws can be viewed as an early measure in this repressive direction. In 2016, a draft law in Bangladesh, the Liberation War Denial Crimes Act similarly recalled European Holocaust denial laws in its rationale, seeking to present an official historical account of the country’s liberation 21  Jacob Mchangama, “First they came for the Holocaust Deniers, and I did not speak out,” Foreign Policy, October 2, 2016, foreignpolicy.com/2016/10/02/first-they-came-­ for-the-holocaust-deniers-and-i-did-not-speak-out/, accessed August 20, 2021.

1  MAPPING MEMORY LAWS 

15

war from Pakistan, and threatening with prison anyone who disputed its claim that three million people were killed during this violent separation. (Official accounts dispute that statistic.) David Bergman writes of the political implications of this law, explaining that, “Since the Awami League came to power again in 2009, it has tried to use the emotions surrounding the 1971 war to justify a move toward authoritarian one-party rule. In its version of history, only the Awami League is the part of liberation, and therefore of government, and opposition parties are branded as ‘pro-­ Pakistan,’ and therefore dangerous and disloyal.”22 The phenomenon of memory laws that promote a nationalist identity should thus be considered not primarily a legal development, but foremost political propaganda that has its origins in expanding the memory of responsibility for the Holocaust. This was amplified by the turning of the Holocaust into a synecdoche of universalist memory of evil. Such representations of the Holocaust in Western Europe have become a rhetorical lighthouse for ethics, and then manipulated toward other ends by majoritarian governments in places where ethnic minorities present a threat to the invented tradition of those in power, and the ways in which their own, contrived history of victimization has helped cement their grip on power. Japan and Korea offer another model for memory laws, in terms of the politicization of memory, and the ways that this politicization corresponds to a move away from pluralism to nationalist rhetoric. In Japan, this conversation has largely emerged around the issue of so-called  ‘comfort women,’ and the refusal to take responsibility for forcing women into sex slavery for the Japanese military during World War II.  Christine Lévy notes the connection between Japanese negationism and its right-wing, nationalist political groups: “Confronted with a demand that had become a national cause in Korea, revisionist currents and extreme right-wing circles in Japan discovered fertile ground for distilling their racist and sexist reaction.”23 The question Levy poses speaks to the conundrum of legislating history in Japan: the post-war trend in Japan has been largely critical of militarism and there is less prejudice toward Korea and Koreans than in 22  David Bergman, “The Politics of Bangladesh’s Genocide Debate” New York Times, April 5, 2016, www.nytimes.com/2016/04/06/opinion/the-politics-of-bangladeshs-genocide-­­ debate.html, accessed August 20, 2021. 23  Christine Lévy, “The Japanese Imperial Army’s ‘Comfort Women’: Political Implications and the Gender of Memory,” The Asia-Pacific Journal, July 12, 2012, www.sciencespo.fr/ mass-violence-war-massacre-resistance/fr/category/mots-violences-de-masse/japan, accessed August 20, 2021.

16 

E. BARKAN AND A. LANG

the past. Nonetheless, the push against an internationally accepted historical truth, and privileging self-serving justifications when it comes to state crimes and individual responsibility—the issues at the heart of the sexual slavery issue—the majoritarian tendencies continue to hold sway.

The Politicization of Memory: From Spain to Latin America The development of memory laws as political phenomena does not fall neatly into two categories. There are countries where memory laws have proliferated in political contexts that are neither entirely populist nor entirely democratic in nature. In Spain, for example, the transition to democracy following the death of Franco in 1975 was defined in many ways by the so-called Pact of Oblivion, which institutionalized a collective amnesia about the past, including the atrocities carried out during the Spanish Civil War and the repressive measures of the Franco regime. Interestingly, with democratization, despite this deliberate amnesia and resistance to addressing past violence, memory and redress slipped back into public discourse and have come to play a role in public political culture. The indictment of Augusto Pinochet in 1996 and the 2007 Law of Historical Memory create a political reality for memory laws that Stephanie Golob explores in this volume. While different from those of other Western European countries such as Germany and France, the adaptation of memory laws in Spain echoes efforts in other western European countries in terms of the goal of promoting a democratic culture of pluralism, and making an effort to come to terms with the past. In considering the political nature of memory laws, it is also important to highlight regions or countries where, even if formal memory laws have not been legislated, informal structures analogous to memory laws have become part of the political fabric of the country. Sometimes linked to the development of memory laws in Spain, historical memory in Latin American countries has rarely culminated in the passage of memory laws— not, at least, in the conventional sense. Nonetheless, the region provides an interesting example of how memory laws and the politicization of memory can take different forms, and how memory laws have been institutionalized as part of the transitional justice mechanisms that play a central role in the politics of South and Central America. In 1984, for example, Argentina’s National Commission on the Disappearance of Persons

1  MAPPING MEMORY LAWS 

17

(CONADEP) published its report about the atrocities committed by that country’s military regime. In the absence of other records, the memories of a missing person were often all that was available to assert that person’s existence, and the inclusion of such memories in the commission’s report marked, as Charles Hatfield writes, “the rise of memory as an accepted source for knowing the truth of the past in Latin America.”24 CONADEP and subsequent truth commissions established by governments across Latin America in the 1990s—the Guatemalan Truth and Reconciliation Commission (TRC) and the El Salvadoran TRC are two examples—point to the effort to use memory in an effort to come to terms with state violence, and as an affirmation of human rights. The Truth and Reconciliation Commissions in several countries provided an opportunity for victims’ narratives to enter the discourse, and to complicate the official narrative. These efforts took place in vastly different political environments, but that they took place at all points to the interest in memory as an assertion of truth, as a means to expose human rights abuses, and as a means to achieve justice. Here again, we see Rothberg’s idea of multidirectional memory having particular resonance. The more the politics of memory advance, the more important they become as a regional tool for fighting abuse. The right to truth, in other words, has been incorporated as a regional demand to promote human rights. But in thinking specifically about memory laws, perhaps more relevant in Latin America is the surge of non-governmental organizations and, in the early 2000s, other officially recognized spaces that commemorate, address, and confront the violence, state repression, and dictatorships of the twentieth century. This second phase of transitional justice attempts to address the shortcomings of redress—legal and political—in the immediate aftermath of transition in the 1980s, where the right wing remained powerful throughout the transition. (In political science the references are to “spoilers,”—for example, military leaders who continue to hold power after the political transition, ensuring that fear would limit accountability for the crimes of the old regime.) In Argentina, for example, it took a generation before investigations and trials were renewed; in many other countries, no such accountability took place, as the military was too powerful, and the threat of a forceful response was very real. Emerging during 24  Charles Hatfield, “The Memory Turn in Latin America,” Política común 6 (2014), https://quod.lib.umich.edu/p/pc/12322227.0006.015/%2D%2Dmemory-turn-in-latinamerica?rgn=main;view=fulltext, accessed August 20, 2021.

18 

E. BARKAN AND A. LANG

a period when left-leaning governments held sway in most Latin American countries, non-governmental organizations have provided spaces that have served as an important measure of memory wars in the nations that built them, and of the non-judicial measures that complement memory laws. The Museum of Memory and Human Rights in Chile, for example, opened in 2010, with the aim, among other things, of making more visible the human rights violations committed by the state. In Lima, Peru, the Place of Memory, Tolerance and Social Inclusion opened in 2015, and houses testimonies and exhibits relating to the armed conflict in that country. In Colombia the National Center for Historical Memory, itself founded in 2011, is planning to open a National Museum of Memory in the 2020s. The city of Bogota has such a museum, as do other cities, and the country looks to memory as a method of peacebuilding. It is critical to note in these developments that there is a gulf between privileging memories and commemorations—that is, the focus of museums—versus the prohibition of conflicting narratives that is so often the goal of memory laws. Nonetheless, in these places, and in non-­ governmental organizations established by memory activists, government repression, defamation, and other acts of censorship have become increasingly common. In 2009, the Peruvian government turned down a two-­ million dollar donation from Germany to construct a national memory museum. In the national uproar that followed, the government ultimately acquiesced to public pressure, but simultaneously appointed the Peruvian novelist and political conservative Mario Vargas Llosa to head the commission that would oversee the creation of the museum.25 In 2018, the newly appointed Chilean Minister of Culture, Mauricio Rojas, was criticized for his comments regarding that country’s Museum of Memory and Human Rights, which appeared in a book he published in 2015  in which he attacked the museum, claiming that it provided a one-sided narrative of the past.26 While these comments ultimately forced Rojas’ resignation, opposing political beliefs and the defensive posture of right-wing governments speak to ways in which NGOs more generally—and museums in particular—have come under attack in their pursuit of a less sanitized 25  Joseph P.  Feldman, “Exhibiting Conflict: History and Politics at the Museo de la Memoria de ANFASEP in Ayacucho, Peru,” Anthropological Quarterly 85.2 (Spring 2012): 487–488. 26  Katherine Hite and Manuela Badilla, “Memorializing in Movement: Chilean Sites of Memory as Spaces of Activism and Imagination,” A contra corriente: Una revista de estudios latinoamericanos 16.3 (Spring 2019): 8.

1  MAPPING MEMORY LAWS 

19

version of history, one that acknowledges past atrocities and the individuals who perpetrated them. While not fitting the example of memory laws set forth in other countries where majoritarian politics have been at the fore, the legislative pressures against international support and the legal or political attacks on the mandates endured by NGOs and other institutions committed to exploring historical memory amount to a similar measure. Moreover, as with memory laws, the pressure placed on these organizations speaks to a worrisome trend in terms of denying communities the ability to come to terms with the violence of the past, and rebuffing efforts that seek to prevent future atrocities from occurring.

Toward Historical Dialogue We will conclude by considering the case of the United States, which provides yet another variant of memory laws, largely because of its size and structure. Based on the First Amendment, freedom of speech protections in the United States firmly reject the prohibition of opinions or assertions espoused, regardless of the falsity or harm that a statement may cause. The extent of the protections afforded by the First Amendment differentiates the United States from most other liberal democracies, where “one uses racial epithets at one’s legal peril, one displays Nazi regalia and the other trappings of ethnic hatred at significant legal risk, and one urges discrimination against religious minorities under threat of fine or imprisonment.”27 While such speech remains constitutionally protected in the United States, at the state and municipal levels there is much more room for politicians to legislate historical content—not through forbidding language but through policies that regulate state symbols (such as the Confederate flag), memorialization, museums and support or rejection of local initiatives. At present, the focus of such regulations revolves around the legacy of slavery and racism as constitutive of American identity. Textbooks provide a particular rich space for legislation, as the state can shape historical narrative by insisting that  publishers exclude or insert prescribed content. This long-term contestation goes back at least to the era of Reconstruction and the dispute of the causes of the Civil War. The celebration in the South of the Lost Cause—that is, the revisionist commemorations and accounts that sought to justify slavery and the Confederate experience—provides a 27  Frederick Schauer, “The Exceptional First Amendment,” American Exceptionalism and Human Rights, ed. Michael Ignatieff (Princeton: Princeton UP: 2005) 38.

20 

E. BARKAN AND A. LANG

rich terrain of proscribing historical narratives. Over the last generation, this discourse has been accentuated, and one prominent contemporary example has been The 1619 Project28 of the New York Times, and the attempts to outlaw its teaching in certain states.29 Texas provides a major example in terms of the multi-pronged efforts of right-wing politicians to proscribe the ways in which slavery is taught in an effort to reinforce the heroism and moral standing of the state’s history and its historical leaders. At the same time that states, particularly those led by Republican majorities, are attempting to limit what can be taught in state mandated history curricula, the debate over reparations has picked up momentum, and is becoming a core around which race relations is contested. To this end, attempts to establish a congressional committee to investigate the question of reparations for slavery—attempts that have failed for more than a generation—have taken their first successful legislative steps in 2021. The range of developments illustrated through examples such as this one reflect how, in many ways, the multiplicity of jurisdictions facilitates a greater role for advocacy, and provides examples which may be picked up by others around the world.30 In mapping memory laws across time and place, it is important to acknowledge the difference between activism for more pluralistic memory and memory laws and similar legislative or political measures that limit memory activism and representation. Non-judicial measures, what we term historical dialogue processes, speak to the former, and to the need to question what might be considered normative historical memory. In a wide range of contexts, historical dialogue seeks to recognize the central role of history in understanding conflict and in exploring restorative action at the group level. This work can happen in different modalities: testimonies and activism  at the  grass roots level, highlighting both community suffering and individual abuse; historical reinterpretations of causal and contingent origins of conflict; analysis and policy recommendations for the future are but a few examples of the ways in which historical dialogue 28  Nikole Hannah-Jones, Mary Elliott, Jazmine Hughes et al., The 1619 Project: New York Times magazine, August 18, 2019. 29  Carole Levine, “Republicans in 5 States Seek to Keep 1619 Project Curriculum out of Schools,” Nonprofit Quarterly, February 15, 2021, https://nonprofitquarterly.org/ republicans-­in-5-states-seek-to-keep-1619-project-curriculum-out-of-schools/, accessed 5/23/2021. 30  One such example can be seen in the African American Redress Network, https:// redressnetwork.org/.

1  MAPPING MEMORY LAWS 

21

can engage opposing sides of a conflict in a critical understanding of the past. What these modes have in common are the efforts for a more multidimensional understanding of the past. They stand in contrast to the struggles between majoritarianism and pluralism that have too often animated a proliferation of memory laws, and the increasingly draconian, anti-democratic measures that such laws portend.

PART I

European Bookends: Acknowledging Guilt and Confronting Denial

CHAPTER 2

French Laws for a Better Past Henry Rousso

The function of law is to settle the future. The past is no longer in its power. —Jean-Etienne Portalis, 1841 (“L’office des lois et de régler l’avenir. Le passé n’est plus en leur pouvoir,” Jean-Étienne-Marie Portalis, Discours préliminaire du premier projet de Code civil. Discours prononcé le 21 janvier 1801 et le Code civil promulgué le 21 mars, Foreword by Michel Massenet (Bordeaux: Éditions Confluences, 2004) 81).

On 7 February 2018, two far right recently elected deputies presented a bill before the Parliament to express a national acknowledgment for the mass crimes committed by the Republican armies against the Vendeans in 1793–1794, during the French Revolution.1 It was rejected like three 1  “Proposition de loi visant à la reconnaissance des crimes commis contre la population vendéenne en 1793–1796 et annulant les lois en exécution desquelles ils ont été commis, présentée par Mesdames Emmanuelle Ménard et Marie-France Lorho, députées,” Assemblée nationale, February 7, 2018.

H. Rousso (*) Centre national de la recherche scientifique (CNRS), Paris, France © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_2

25

26 

H. ROUSSO

previous equivalent texts, presented in 2007, in 2012, and in 2013. All three included one single Article: “The French Republic acknowledges the genocide of 1793–1794.”2 The 2018 bill no longer used the concept of “genocide,” but the political message was the same: what has been done for several other mass crimes in history has to be done for this particular episode. And the text added, “The Republic will be all the stronger as it will recognize its weaknesses, its errors and its faults. It cannot keep silent about what is a stain in its history [and] this bill will not open the way to sanctions or reparations that, after two centuries, would be meaningless.”3 These bills looked like similar laws voted in the previous years, especially the January 29, 2001 Act, recognizing the Armenian genocide, or the May 21, 2001 Act, defining Slavery as a crime against humanity. While framed in a very different political perspective, it used a similar narrative expressing a moral obligation to pay a tribute to forgotten victims in order to reinforce national identity and unity. However, it did not ask for any kind of reparation or retribution, procedures that the far right has often denounced when it challenged most of the public policies of memory implemented in France since the 1990’s. Everyone knew that none of these bills recalling the fate of the Vendeans had any chance to pass. The issue has been a well-known and traditional marker for the extreme right. The concept of “genocide,” first used in 1986 by Reynald Seicher, a historian and an activist,4 did not convince more than a bunch of right-wing intellectuals. For most reliable historians, the war in Vendée, as it was called during the event itself, had nothing to do with a mass crime targeting a specific group and resulting from a planned systematic violence to exterminate the group as such. At the same moment, many other insurgent movements all over France were repressed by the revolutionary government, and the Vendeans did not represent an “ethnic” target. On the contrary, this is the Revolution repression which created a new identity afterwards, due to the huge death toll in the area: around 200,000 casualties. The Republican armies committed numerous atrocities against civilians such as mass killings, rapes, plundering, and 2  See for example, “Proposition de loi relative à la reconnaissance du génocide vendéen de 1793–1794,” présentée par MM. Lionel Luca, Hervé de Charrette, Mme Véronique Besse, etc.,” Assemblée nationale, February 21, 2007. 3  Ibid. 4  Reynald Seicher, Le Génocide franco-français. La Vendée-Vengé, Foreword by Jean Meyer (Paris: Presses Universitaires de France, 1986).

2  FRENCH LAWS FOR A BETTER PAST 

27

destruction of villages.5 The event marked the memories for a long time at a local, national, and even international level, indeed leaving a stain on the Revolution’s legacy. If one accepts the use of contemporary legal categories, these massacres could have been targeted as a violation of Article 3 of the 1949 Geneva convention about prisoners of war in a non-international conflict or even as crimes against humanity, but nothing qualified them as a genocide, which does not diminish their seriousness. Those who raised this issue in the mid-1980’s, in the context of the anamnesis of the Nazi crimes in Europe, wanted to challenge the memory of the Holocaust and to draw a dubious comparison. These reactionary bills looked similar to all liberal memory laws voted before, but they were also a provocation to denounce the very principle to legislate on history. They emphasized how risky it could be opening Pandora’s box and implementing a process of redressing the past in an old country like France: among all the possible victims in a very long history of warfare and violence, which of them deserve such belated official tributes? And what would be the best criteria to distinguish between them?

Invention of a Tradition To understand the French debates over memory laws, one must keep in mind some particularities of its legal and political system. First, in principle, according to French political traditions, the Parliament is not allowed to deliver general statements. Its role is to produce the law, which is actually the only way to express an opinion on a given topic, including historical or memorial issues. Second, before being adopted, a bill can be introduced in the Parliament agenda either by the government as a “project” (“projet de loi”), or by a group of deputies as a “proposal” (“proposition de loi”). Most of the country’s memory laws came from a parliamentary initiative, reflecting more or less the desire to fulfill the claims of associations or specific civil society groups, and they have been adopted with the support of the government. Last but not least, unlike international law and many other national cases, the 1994 French criminal code splits crimes against humanity into two categories: genocide and “other” crimes. In 5  Jean-Clément Martin, “Sur la guerre de Vendée et le concept de ‘génocide’. Une mise au point historique,” Association des Professeurs d’Histoire et de Géographie (APHG), March 7, 2018, www.aphg.fr/Sur-la-guerre-de-Vendee-et-le-concept-de-genocide, accessed August 25, 2021.

28 

H. ROUSSO

addition, for historical reasons linked to the fear of seeing officers sued after the end of the Algerian war, France did not sign the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.6 As a consequence, only crimes against humanity are imprescriptible whereas war crimes benefit from a statute of limitations after twenty years until recently (now, thirty years). These singularities raised many specific issues related to the application of such criminal qualifications to historical events. At an international level, the notion of crime against humanity, defined by the 1945 London Agreement creating the International Military Tribunal, was applied retroactively to the Nazi crimes at Nuremberg, whereas, the notion of genocide defined by the 1948 Convention was not retroactive and has never been judicially applied to any crime committed before, including the Holocaust. By introducing the genocide as a sub-category of crimes against humanity, the new French penal code created a very particular situation in leaving open the possibility that the legal notion of genocide could or could not be applied to events occurred before 1994 or 1948, mainly the Armenian genocide. In France, the concept of “loi mémorielle”—which influenced the English notion of “memory law”7—appeared for the first time after a fierce controversy about a text voted into law on 24 February 2005, expressing the “Nation’s gratitude for the Français rapatriés.” This law referred to the million or so people in Algeria with a French or a European background, forced to find asylum in France in 1962, after the Algerian war. For many right-wing politicians, these victims did not get 6  United Nations Human Rights Office of the High Commissioner, Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, www.ohchr.org/EN/ProfessionalInterest/Pages/WarCrimes.aspx, accessed August 25, 2021. 7  On this issue, see Nikolay Koposov, Memory laws, memory wars: the politics of the past in Europe and Russia (New York: Cambridge UP, 2017) 1. See also, Stiina Löytömäki, Law and the politics of memory: confronting the past (New York: Routledge, 2014). On French memory laws, there are many other references. See for instance, Bernard Accoyer (ed.), Questions mémorielles: rassembler la nation autour d’une mémoire partagée: rapport de la mission parlementaire d’information (Paris, Assemblée nationale, 2009); Myriam Bienenstock, Devoir de mémoire  ?  : les lois mémorielles et l’histoire (Paris: Éditions de l’Éclat, 2014); Sarah Gensburger and Sandrine Lefranc, Beyond Memory. Can We Really Learn From the Past? Palgrave Macmillan Memory Studies (Cham: Palgrave Macmillan, 2020); Sébastien Ledoux and Noëlline Castagnez, “Enjeux nationaux, globalisation et limites des lois mémorielles. Interview avec Henry Rousso,” Parlement[s], Revue d’histoire politique, hors-série 15.3 (2020): 179–195.

2  FRENCH LAWS FOR A BETTER PAST 

29

the same attention as other categories, and their fate was neglected in French national memory. As a matter of fact, France began to cope with its colonial past in the 1990’s mainly focusing on the wrongdoings the country committed as a colonial power, for instance the large-scale practice of torture in Algeria against French or Algerian anti-Colonialists. Emphasizing the fate of those who were obliged to leave their native country and who suffered because the independence of the former colony was not neutral at all, these acts show how each political camp may have its own “good victims,” in a well-known process of competition. Meanwhile, it was not the law as such that provoked the dispute—few voices openly criticized the idea of recalling the fate of these people; rather the dispute emerged from just one Article, eventually withdrawn, that required school curricula “to acknowledge the positive role of the French presence overseas.”8 In the midst of many debates about the integration of minorities in a political tradition that tends to ignore them as such, the law demanded the teaching of all the benefits of one century of colonial domination, especially in North and Sub-Saharan Africa. As a consequence, this obviously ideological position should have been taught to students who, for many of them, belonged to families who came precisely from these areas as immigrants, in the 1960s, post-independence, and were coping with huge economic, social, and cultural challenges. Two months later, in June 2005, a prominent historian of slavery, Olivier Pétré-Grenouilleau, declared in an interview that the above-­ mentioned 21 May 2001 Act, known as the “Loi Taubira,” was wrong. In defining the transatlantic triangle trade and Slavery as “crimes against humanity,” the law made an irrelevant comparison with the Holocaust. Unlike the Nazis, he explained, the slave traders or owners did not intend to exterminate those they captured and exploited, but on the contrary sought to benefit from their workforce until they died.9 Whether Slavery can be considered a genocide is intellectually debatable; the 1945 London agreement defined with no doubt the action to enslave people as a crime against humanity. The only question that therefore remained was whether 8  “Loi du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés,” Article 4. 9  Olivier Pétré-Grenouilleau, interview in the Journal du Dimanche, 12 June 2005. He has written many important books, including: From Slave Trade to Empire. Europe and the Colonisation of Black Africa (1780s–1880s) (Routledge: London, 2004), first published in France under the title: Les Traites négrières. Essai d’histoire globale, by Pierre Nora, in his prestigious series: Bibliothèque des Histoires (Paris: Gallimard, 2004).

30 

H. ROUSSO

one could apply such contemporary criminal categories to remote historical events, which is what has been at stake with most memory laws. However, Pétré-Grenouilleau’s statements were not contradicted on an intellectual basis. His expertise and his ability to express a free opinion on history were simply denied by French West Indies activists who accused him of being a “racist” and sued him in court, before withdrawing the complaint.10 To contest or to deny a crime against humanity is punishable under the French penal code only under very specific circumstances, and this has been another major issue of most memory laws. The whole debate deepened the gap between history, memory, and the law, an ongoing controversy for more than a decade. In June 2005, a group of scholars, mainly left-wing, like the historian Gérard Noiriel, denounced the 2005 Act on the “Français rapatriés” as an inappropriate use of history. They created a new organization called the “Comité de vigilance des usages historiques de l’histoire” (CVUH)—recalling the famous “Comité de vigilance des intellectuels antifascistes” founded in 1934—and triggered a campaign against the text: This law is not only worrying because it is underlain by a conservative vision of the colonial past, but also because it conveys the deep contempt of the authorities for colonized people and for the work of historians. This law also reflects a more general tendency. The increasing intervention of the political power and of the media in historical matters tends to impose value judgments to the detriment of the critical analysis of the phenomena.11

While defending the historical profession’s autonomy and refusing any “hierarchy of victims” of historical atrocities, the Manifesto focused only on the 2005 Act, without mentioning other similar texts promulgated earlier. As a matter of fact, many of those who denounced here the misuses of the past have accepted—and even praised—in the previous years, several other similar laws, especially the “Loi Taubira,” inspired by a post-colonial perspective. In the meantime, other scholars and intellectuals reacted not to the content of the 2005 text, but to its very principle. Prominent

10  See for example: Jean-Baptiste de Montvalon, “Les historiens pris sous le feu des mémoires” Le Monde, December 16, 2005. 11  “Manifesto of Committee of Vigilance on the public use of history,” Comité de Vigilance face aux Usages Publics de l’Histoire (CVUN), June 17, 2005, cvuh.blogspot. com/2007/02/manifesto-of-comite-de-vigilance-face.html, accessed June 8, 2018.

2  FRENCH LAWS FOR A BETTER PAST 

31

historians like René Rémond and Pierre Nora created the association: “Liberté pour l’Histoire,” and declared in their first appeal: In a free State, it is not the role of the Parliament or the Judiciary to define historical truth. State policy, even driven by the best intentions, is not a politics of history. Violating these principles, Articles of successive laws, notably that of the 13 July 1990, the 29 January 2001, the 21 May 2001 and the 23 February 2005 Acts, have restrained the freedom of historians, have told them under fear of sanctions what they should research and what they should find, have prescribed methods to them and set limits to their work. We ask for the abrogation of such legislative provisions which are unworthy of a democratic regime.12

This appeal denounced a process that most of those who signed it did not really pay attention to before 2005. However, gathering different kinds of acts together and asking for their abrogation, it created retrospectively a new category, coined a few weeks later as the “lois mémorielles”. What is new in this practice? As many historians pointed out, to legislate on history is hardly a new phenomenon. There are many examples where the narrative of an event has been framed by a political or a juridical norm. To take some cases in French history, the 1598 Edict of Nantes, the famous royal Act which put an end to the religious war between Catholics and Protestants, in order to reconcile the parties, imposed the removal of the whole event from French collective memory: “The recollection of everything done by one party or the other [during the conflict] remains obliterated and forgotten, as if no such things had ever happened.”13 In the 1814 12  “Appel du 12 décembre 2005,” firstly signed by: Jean-Pierre Azéma, Elisabeth Badinter, Jean-Jacques Becker, Françoise Chandernagor, Alain Decaux, Marc Ferro, Jacques Julliard, Jean Leclant, Pierre Milza, Pierre Nora, Mona Ozouf, Jean-Claude Perrot, Antoine Prost, René Rémond, Maurice Vaïsse, Jean-Pierre Vernant, Paul Veyne, Pierre Vidal-Naquet, and Michel Winock. See also, Pierre Nora et Francoise Chandernagor, Liberté pour l’histoire (Paris: CNRS, 2008). I participated in the debate (cf. Henry Rousso, “Mémoires abusives,” Le Monde, 24 December 2005), but I did not sign this appeal because I thought abrogating the law against Holocaust deniers would have been a tremendous political mistake when, at the same moment, some countries like Ahmadinejad’s Iran were officially promoting Holocaust denial as a new form of anti-Semitism. I eventually joined Liberté pour l’Histoire, in 2008. Cf. Henry Rousso, “Pourquoi j’adhère à LPH,” 25 février 2008, www.lph-asso.fr/ index9cd0.html?option=com_content&view=article&id=9%3Ahenry-rousso-l-pourquoijadhere-­a-lph-r&catid=4%3Atribunes&Itemid=4&lang=fr, accessed August 25, 2021. 13  “La mémoire de toutes choses passées d’une part et d’autre depuis le commencement du mois de mars 1585 [assassinat du Duc de Guise] jusqu’à notre avènement à la couronne, et

32 

H. ROUSSO

Charter during the Restoration, King Louis XVIII, considering that the French Revolution and the Napoleonic episode were mere parentheses in the long history of France’s monarchy, declared: “By thus seeking to renew the chain of time, which fatal errors had interrupted, we removed from our memory, as we would like to be erased from history, all the evils which have afflicted the country during our absence.”14 Later on, in the nineteenth and twentieth century, after almost any major civil conflict, many collective amnesty laws were passed in order to pardon specific categories of political crimes, imposing an official oblivion (in particular in the judicial files) on them: after the Commune (1880), after Vichy and the Collaboration (1947–1953), or after the Algerian war (from 1964 on). These texts sought neither to promote a particular interpretation of the past, nor to impose an official narrative on school curricula, but to express a strong position dictated by the raison d’État: to remove a specific episode of the past from collective memory and to prescribe an official oblivion to make possible social and political reconstruction. Inspired by very old Greek and Christian traditions, they considered that in a post-conflict situation, societies must turn away from the past and look forward to the future. Contemporary memory laws founded their legitimacy using the exact opposite rationale. They resulted from a political and moral perspective which refutes any attempt to defend a suppression of the memory of crimes committed in a recent or a remote past. They are based on a “presentist” approach to history that expresses the superiority of the values of our time (i.e. the human rights) over the values of our ancestors. They affirm the ability and the duty for contemporaries not only to fill the black holes of disgraceful historical episodes but also to redress, to repair, and to act upon their long-lasting sequels. In this context, a memory law presents as a norm an official historical narrative on a precise episode, with political, social, and financial consequences: it gives a symbolic acknowledgment and usually new rights to victims, it may open the possibility to sue before durant les autres troubles précédents […], demeurera éteinte et assoupie comme de chose non advenue.” The French version is available on many sites. See for example: huguenotsweb.free.fr/histoire/edit_nantes.htm, accessed June 11, 2018. 14  “En cherchant ainsi renouer la chaîne des temps, que de funeste écarts avaient interrompus, nous avons effacé de notre souvenir, comme nous voudrions qu’on pu les effacer de l’histoire, tous les maux qui ont affligé la patrie durant notre absence,” full text quoted in Sylvie Aprile, La Révolution inachevée 1815–1870, Coll. Histoire de France, sous la direction de Joël Cornette, Jean-Louis Biget, and Henry Rousso, eds. (Paris: Belin, 2010) 22.

2  FRENCH LAWS FOR A BETTER PAST 

33

a court those who contest accepted views on the past, it changes the teaching of history in high schools. As such, the very concept of memory law has been an important step in the recent judicialization of the past, which should be analyzed in the framework of new public policies of memory. This process assumed an important place in France as elsewhere in the last three decades: commemorations, historical commissions, trials for remote mass crimes, and so on.

Changing the Past French memory laws include five main texts, each with different characteristics, with different aims, and modified several times in some instances. Targeting the Holocaust Deniers The first memorial law is the well-known “Loi Gayssot,” named for the Communist deputy Jean-Claude Gayssot who initiated it, and passed on 13 July 1990. According to the text, the law punishes “those who will have disputed the existence of one or more crimes against humanity as defined by Article 6 of the Statute of the International Military Tribunal annexed to the London Agreement of 8 August 1945 and which were carried out either by the members of an organization declared criminal pursuant to Article 9 of the aforementioned Statute or by a person convicted of such crimes by a French or an international court.”15 Actually, this text was not a new act as such but a modification of the Article 24bis of the law on the Freedom of Press, voted on 29 July 1881, on the eve of the Third Republic, and considered one of the pillars of the French political system. This law had already been changed in 1972 with elements defining and repressing hate speech, and the new “Loi Gayssot” completed it by considering the denial of the Holocaust as a similar felony. This law was passed in a very sensitive context. Many politicians and intellectuals were concerned by the revival of neo-Nazis movements and the scandals caused by Holocaust deniers in several major universities, in 15  “Loi du 13 juillet 1990 tendant à réprimer tout acte raciste, antisémite ou xénophobe,” Assemblé nationale, July 13, 1990 www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFT EXT000000532990&categorieLien=id, accessed August 25, 2021. For a comparative perspective on laws against deniers, see: Ludovic Hennebel & Thomas Hochmann, Genocide Denials and the Law (Oxford: Oxford UP, 2011).

34 

H. ROUSSO

particular in Lyon 2 and Lyon 3.16 The vote itself occurred a month after the defamation of a Jewish cemetery in Carpentras, in Southern France, on 10 May 1990. This event sparked a tremendous outcry, and drove the necessity to react against what appeared to be a new wave of anti-­Semitism. The “Loi Gayssot,” initiated by the left, under the patronage of President Mitterrand and Prime Michel Rocard, remained during a decade an isolated initiative, taken in the context of the growing attention paid to the memory of the Holocaust. It has never been labeled as a memory law until the 2005 Appeal and it was targeting the denial of crimes committed only by the Axis powers. This restricted interpretation resulted from the widespread assumption of the radical uniqueness and singularity of the destruction of the European Jews during World War II. Then, most of the critics, including prominent scholars such as Pierre Vidal-Naquet or Madeleine Rébérioux, focused on the possible limit to free speech, and on this unusual situation of letting the justice system distinguish between what was considered an acceptable historical statement and what was a “negationist” one. However, very few voices pointed out the fact that only one genocide was at stake, even if the “Loi Gayssot” established a precedent, and opened the path for other memory laws. The Algerian War Was a War On 18 October 1999, the National Assembly passed an act modifying the rules regarding military pensions: “The French Republic recognizes, in conditions of strict equality with combatants of previous conflicts, the services rendered by persons who participated under its authority in the war in Algeria or in the battles in Tunisia and Morocco between January 1st 1952 and July 2nd 1962.” The act gives these combatants the status of veterans and added that in all official texts the words “operations done in North Africa” shall be replaced by the words “the Algerian war” or “the fights in Tunisia and Morocco.”17 This first real French memory law resulted from a long held claim. It legalized the usual way anyone in France was speaking about the war of decolonization in Algeria since 16  Cf. Henry Rousso, Le dossier Lyon III: le rapport sur le racisme et le négationnisme à l’Université Jean-Moulin (Paris: Fayard, 2004). 17  “Loi relative à la substitution, à l’expression ‘aux opérations effectuées en Afrique du Nord’, de l’expression ‘à la guerre d’Algérie ou aux combats en Tunisie et au Maroc’,” Assemblée nationale, October 18, 1999, www.legifrance.gouv.fr/affichTexte.do?cidTexte=L EGITEXT000005628635&dateTexte=20180509, accessed August 25, 2021.

2  FRENCH LAWS FOR A BETTER PAST 

35

1962. The core of this decision was not only to provide a more accurate narrative of a painful historical episode. It aimed to establish an equality between veterans of all wars in which France was involved. There were no real controversies about it, and even Liberté pour l’Histoire did not ask for its abolition. During the war itself, many anti-Colonialists criticized the euphemisms used by the Government to cover the reality, using expressions such as the “events in Algeria” (“les événements d’Algérie”) or the “law enforcement operations” (“les operations du maintien de l’ordre”). Nevertheless, what happened in Algeria had clearly nothing to do with any police operation. This act raised a kind of paradox. If the French Government had proclaimed in 1954, on the eve of the conflict, or even in 1960 at its climax, that it was waging “a war,” this would have meant that it was fighting an independent state, which was what France refused to recognize and which was precisely the reason for the conflict. This inconsistency is anything but new: all successful wars of independence—the official denomination of the conflict in Algeria—present the same contradiction. Before being defined afterwards as a war, meaning fighting an independent or an autonomous political entity, the conflict is usually considered by the dominant party (Empire, Colonial power) as an inner conflict. Those who are fighting are not combatants but “criminals,” “separatist activists,” or “terrorists”. Here, wishing to give decades later the status of veterans to all the French combatants involved in these fights, the State had to redefine retrospectively the event itself. Thus, in some respect, it unwillingly recognized that it was wrong to have waged such a long conflict before accepting the independence of Algeria. This is a very good example of “historical redress,” that is a political decision whose legitimacy is grounded in the present and not in the past. The Genocide of the Armenians Was a Genocide On 29 January 2001, the French parliament passed another memory law with a single and very brief article: “France publicly acknowledges the Armenian genocide of 1915.”18 The law belatedly followed the example of the European Parliament, which, on 18 June 1987, adopted a resolution 18  “Loi relative à la reconnaissance du génocide arménien de 1915,” Assemblée nationale, January 29, 2001 www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000403928, accessed August 25, 2021.

36 

H. ROUSSO

on a political solution to the Armenian question and put pressure on the Turkish Government to recognize the genocide committed in 1915–1917, which Turkey has never accepted. It is interesting to note that, for the first time, a law providing a historical narrative did not directly concern French history. Like the Holocaust, remembering the Armenian genocide was an act that came at the end of the twentieth century, pointing to an important element of the European legacy and of its common values. However, there was here another argument. France had—and still has—the largest Armenian community in Europe (half of a million people), as well as the largest Jewish community (around 700,000) and the largest Muslim community (around five million). The politics of memory is a politics of identity; and in France, where minorities had difficulties gaining wider attention, memory laws were a tool to provide symbolic gestures in their direction. Nevertheless, the law on the Armenian genocide raised many subsequent challenges. First, as opposed to the two other previous texts, it did not have any concrete effect. It did not prevent any prejudice or hate speech—will the Turkish Ambassador in France ever be sued?—and it did not provide any new rights. It was denounced by many lawyers as a “declarative law,” an official and very general statement made by the Parliament, which was not one of its prerogatives. Second, could a Parliament decide on its own that a specific crime could be legally defined as a “genocide” while no tribunal ever charged any defendant for this kind of a crime because of the non-retroactivity of the 1948 Convention? The question is a general one, including at the European level, but it took on a particular importance in France in subsequent years. The Western Slavery A few months later, on 21 May 2001, the parliament passed what is probably the most important memory law, the “Loi Taubira,” named for the French Guyanese deputy Christiane Taubira, who is closely affiliated with the Socialist party. It addressed many issues in the same text, all related to Slavery. Article 1 gave a historical and legal definition of the process itself: “The French Republic acknowledges that the transatlantic slave trade, trafficking in the Indian Ocean on the one hand, and Slavery on the other, perpetrated from the 15th century onwards in the Americas and the Caribbean in the Indian Ocean and in Europe against the African, Amerindian, Malagasy and Indian populations constitute a crime against

2  FRENCH LAWS FOR A BETTER PAST 

37

humanity.” Article 2 recommended, “school and research programs in history and human sciences will give the slave trade and Slavery the consequent place they deserve.” This was the first time that a memory law tackled the very sensitive issue of how to teach history at school. If the curricula in France are established by the ministry of Education, they usually respect the autonomy of teachers and the principle of a strict State neutrality. The law did not go beyond this recommendation, but it opened the door to other similar initiatives. Articles 3 and 4 recommended a change to the 1983 law commemorating Slavery’s abolition—a changed enacted five years later, in 2006, when the Parliament created on the 10th of May (the anniversary of the 2001 debate), a new National Day remembering “the slave trade, Slavery and its abolitions,” meaning that not only the good deed (i.e. abolition) but the crime as well would be memorialized.19 The first draft of this text also included an Article making it an offense to deny or trivialize these newly defined crimes against humanity, but this Article was eventually withdrawn. When the law was passed, it did not attract much attention. The real debate began in 2005, during the controversy surrounding memory laws. The “Loi Taubira” was one of the more frequently attacked, mainly for its Article 1. Many criticized its definition of such a complex phenomenon, which fulfills a political goal with little respect for historical realities. The Atlantic trade began at the eve of the sixteenth century, especially between Portugal and Brazil, and not during the fifteenth century, when the slave trade was between Africa and Europe. In the text, nothing is said about the African protagonists of the process, who captured most of the Slaves before selling them to Portuguese, Spanish, or French merchants. Nor is there any mention of Slavery as a phenomenon practiced by other civilizations prior to, at the same time, or even today, for instance the Arab Empire or contemporary enslavement practices in some Asian or African areas. The law targeted only the acts perpetrated by Western colonial Empires. When Christiane Taubira was asked by a journalist, in 2006, why some other examples of Slavery were absent of the definition, she replied bluntly that the Arab-Muslim slave trade should not be discussed too much so that “young [French] Arabs “do not bear on their backs all the 19  “Loi tendant à la reconnaissance de la traite et de l’esclavage en tant que crime contre l’humanité,” Assemblée nationale, May 21, 2001, www.legifrance.gouv.fr/affichTexte.do?ci dTexte=JORFTEXT000000405369&dateTexte=&categorieLien=id, accessed August 25, 2021.

38 

H. ROUSSO

weight of the legacy of the misdeeds of the Arabs.”20 It would be hard to state more clearly that the “Loi Taubira” obeyed a post-colonial perspective on identity. Colonialism, the Good Old Days If we leave out the 1990 law on Holocaust deniers, the three others voted on between 1999 and 2001 had much in common. They present a set of “liberal” texts, defending values like transparency, or accountability, aiming to redress the mistakes or wrongdoings made on behalf of the State. All of them deal with identity politics as well. They benefited from a specific political context, when the Gaullist President Chirac nominated the Socialist Lionel Jospin as Prime minister, during a period of “cohabitation,” a kind of bi-partisan governance between 1997, when President Jacques Chirac, who was elected in 1995, lost the majority in Parliament, and 2002, when Chirac began a second presidential term. The center-­ right and the left agreed on many issues related to dealing with the past, and Jacques Chirac has even been considered the “president of the duty to remember.”21 Meanwhile, when the right regained the full exercise of power after the threat caused by the presence of Jean-Marie Le Pen, the leader of the extreme right, in the second round of the April 2002 presidential election, the most conservative part of the new majority decided to react. After all, the right and the extreme-right have their own historical victims as well. This was the reason that the above-mentioned memory law passed on 24 February 2005, was established, giving the gratitude of the Nation to the ‘Français rapatriés’. Similar in its structure to the “Loi Taubira,” it came up with the opposite agenda. In Article 1, it stated, “the Nation expresses its gratitude to the women and men who participated in the achievement accomplished by France in the former French départements in Algeria, and in Morocco, Tunisia, and Indochina as well as in the territories formerly under French sovereignty. It acknowledges the sufferings and sacrifices endured by the rapatriés, the former members of the auxiliary forces, the 20  “Christiane Taubira déclare sans ambages qu’il ne faut pas trop évoquer la traite négrière arabo-musulmane pour que les “jeunes Arabes” “ne portent pas sur leur dos tout le poids de l’héritage des méfaits des Arabes,” interview with Éric Conan, “Encoure aujourd’hui,” L’Express, May 4, 2006. 21  Béatrice Gurrey, “Le président du devoir de mémoire,” Le Monde, March 13, 2007, special issue on Jacques Chirac at the end of his second term.

2  FRENCH LAWS FOR A BETTER PAST 

39

missing, and the civilian and military victims of the events linked to the independence process of these former départements and territories, and pays a solemn tribute to them and their families.” The list included all manner of European victims of decolonization, both civilians and soldiers, as well as North African veterans who fought on the French side, either in the Army or in auxiliary forces, and known under the generic name of “Harkis”. The latter were considered “collaborators” by the Algerian Independentists, and many of them were massacred in summer 1962. This Article was not particularly controversial, and appeared to be a way to balance competitive French memories. After all, the Algerian war deeply divided French society. Unlike what happened after Vichy France, most of the “losers,” both the millions of European refugees and the French drafted veterans, were considered victims. As I already mentioned before, Article 4 triggered the controversy about memory laws as such, by trying to impose a pedagogical neo-­ colonial narrative: ‘Academic research programs give to the history of the French presence overseas, particularly in North Africa, the place it deserves. The school curricula recognize the positive role of the French presence overseas, particularly in North Africa, and give the history and sacrifices of the French army combatants from these territories the outstanding place to which they are entitled.’ This Article was a strong reaction to policies of “negative memory,” that is, policies of redress, and was used by many right-wing leaders, including future French president Nicolas Sarkozy, to denounce an “ideology of repentance.” Eventually, this Article was abrogated in February 2006, but the rest of the text remained.

The Duty to Remember Versus the State of Law In the 2000’s, memory laws became part of European policies. Between 2001 and 2007, the European Union’s ministries of Justice tried to find an agreement to fight against hate speech and various forms of historical revisionism. Following a proposal made on 20 April 2007, the European Council finally took on 28 November 2008, a Framework Decision to combat expressions of racism and xenophobia by means of criminal law, including “publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal,

40 

H. ROUSSO

when the conduct is carried out in a manner likely to incite violence or hatred against such a group or member of such a group.”22 The initiative triggered a new controversy in France. Pierre Nora and “Liberté pour l’histoire” launched a new appeal, “L’Appel de Blois,” in October 2007, recalling, “in a free state, it does not belong to any political authority to define historical truth” A few months later, the National Assembly created a special commission to investigate the need and the legitimacy of memory laws. The almost 500 pages report was released the 18 November 2008, a few days before the European Framework Decision. While probably the most complete account on the topic, and despite some recommendations to promote a “shared memory” (“une mémoire partagée”) or asking to the Parliament to avoid legislating on history, the report did not lead to any concrete decision, and moreover could not stop the process that tried adapting the European Framework Decision in French law.23 In October 2011, the Parliament had to examine a bill reformulating the “Loi Gayssot” in order to punish those who contest the existence of any crime against humanity—and not only the Holocaust—recognized by international or French texts.24 At stake was the possibility of punishing all those who contested the genocidal nature of the massacres of the Armenians. To bypass the fact that these crimes were never judicially qualified as a genocide, the bill referred to the 2001 Act, which proclaimed the acknowledgment of the Armenian genocide as a legal statement. Meanwhile, in February 2012, the Constitutional Council, the highest French court, rejected the bill, arguing that the Parliament was not competent to apply a criminal qualification—the crime of genocide to a specific case—the Armenians, which is the prerogative of a criminal court.25 This decision triggered again the debate over the legitimacy of memory 22  “Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law”, 2008/913/JHA, November 28, 2008, eur-lex.europa. eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al33178. 23  Bernard Accoyer (ed.), Questions mémorielles. “Appel de Blois,” during the “Rendez-­ vous de Blois,” the unofficial congress of French historians, October 11, 2008. 24  “Proposition de loi portant transposition du droit communautaire européen sur la lutte contre le racisme et réprimant la contestation de l’existence du génocide arménien,” October 18, 2011, www.assemblee-nationale.fr/13/dossiers/lutte_racisme_genocide_armenien.asp, accessed August 25, 2021. 25  “Décision du Conseil Constitutionnel, 28 février 2012,” www.conseil-constitutionnel. fr/decision/2012/2012-647-dc/decision-n-2012-647-dc-du-28-fevrier-2012.104949. html, accessed August 25, 2021.

2  FRENCH LAWS FOR A BETTER PAST 

41

laws. One of France’s most prominent lawyers and intellectuals, Robert Badinter wrote a harsh criticism of the 2011 bill: “Only the judicial authority has the capacity to say whether a crime has been committed and who the perpetrators are. Thus, the Jewish genocide by the Nazis was established by the International Military Tribunal of Nuremberg […] The same is true for crimes against humanity judged by international criminal courts for the former Yugoslavia, Rwanda. No such thing exists for the 1915 Armenian Genocide, committed before the awareness of the international community of the moral imperative that the executioners of humanity do not go unpunished. But this mission falls under international jurisdiction, and first and foremost the ICC.  The French Parliament has no competence in this respect and cannot set itself up as a universal jurisdiction and proclaim by French law the existence of crimes which, in the interests of being historical, do not fall within its competence.”26 Actually, the argument could be applied to other memory laws. For instance, the “Loi Taubira” did the same thing in terms of applying a criminal offense—the crime against humanity—to a specific episode— Slavery. While it is unlikely that any memory law will be repealed for such a reason, the fact remains that the extension of the “Loi Gayssot” has been legally restricted, creating a moral inequality between the victims. In January 2017, the application of the European Framework Decision returned once again to the French Parliament agenda, leading to a new modification of article 24bis of the “Loi Gayssot”. The same penalties would now be applied to “those who have denied, abused or grossly trivialized […] the existence of a crime of genocide other than those mentioned in the first paragraph of this Article [the Holocaust], of another crime against humanity, a crime of enslavement or exploitation of a person reduced to Slavery or a war crime,” as defined either by the Statute of the International Criminal Court or the French Criminal Code. This new writing added an important statement, a consequence of the 2012 Constitutional Council decision. It restricted its application to the crimes which already “gave rise to a sentence pronounced by a French or an international court.”27 As a paradoxical consequence, the French law forbids 26   Robert Badinter, “Génocide arménien: la pitié dangereuse,” Le Monde, January 25, 2012. 27  Modification of Article 24bis of the 1881 Law on the Freedom of Press, January 27, 2017, www.legifrance.gouv.fr/affichTexteArticle.do?idArticle=LEGIARTI000006419717 &cidTexte=LEGITEXT000006070722, accessed August 25, 2021.

42 

H. ROUSSO

today the denial or gross trivialization of the genocide of the Tutsi in Rwanda, judged as such in many national and international courts (including in France), but does not allow the possibility to sue those who deny the Armenian genocide, which was never taken into account by any international or French court: this is one of the very reasons for recognizing the genocidal nature of this massacre by many national parliaments, including the French one!

Norms for What? At a global level, laws dealing with historical issues have been generally implemented in two kinds of situations. They can be part of a process of transition, of coming to terms with many important and urgent issues, such as establishing the truth about mass crimes, creating institutions to collect archives and testimonies, or installing various sorts of truth and reconciliation commissions. There are of course plenty of examples in recent history, like the 2011 Decree creating the National Center for Historical Memory in Colombia, whose purpose goes far beyond an administrative decision and is part of a larger reconciliation process, or even the famous 2007 Spanish Historical Memory Law, a belated text, a consequence of a long and difficult democratic transition after Franco’s death, in 1975. In these situations, the notion of memory refers to what will be said in the future about the historical events the text is dealing with. This justifies the use of a law-making process to impose a strict norm—forgetting, reconciliation or justice—reflecting a raison d’État, to protagonists who may be rather reluctant to follow such a path. Laws voted decades after the event, sometimes centuries later, such as texts on Slavery, whose purpose is to pay a tribute to real or alleged forgotten victims in order to sustain a policy of identity for the descendants, or to promote an official historical narrative, are of a very different nature. Here, the concept of memory means to redress a situation where the crimes or the wrongdoings committed in a belated past, especially by the State, have been underestimated or ignored during the transition. This is the case of the French laws, which proposed a different interpretation of Slavery, Colonialism, or the crimes against the Armenians than the one which appeared at the end of the process itself. In such cases, there is a major distinction to make between repairing a crime after its perpetration, and repairing it generations later. In the first case, this is a process of justice, in terms of targeting the criminals or a reparation for the survivors.

2  FRENCH LAWS FOR A BETTER PAST 

43

In the second one, the process of justice includes targeting the last criminals, but also criticizing the generation who was unable to understand in time the deep meaning of the event as well. Moreover, while transitional memory laws are dealing with one major event—that is, the sequels of a civil war—belated memory laws opened a much wider field of application, with no limits going backward in time. It fostered instead competition between victims or descendants of victims, and obliged the State to respect equality, a French political pillar. What has been done for the victims of the Holocaust should be done for the victims of the Algerian war—and all the victims of this conflict—and for all the descendants of Slaves, and for the Armenians and the Tutsi. Who’s next? In the early 2000’s, most memory laws were voted in the context of a crisis of the Republican model. The French melting pot encountered difficulties in integrating new generations of immigrants, especially those who came from the former colonies. Memory laws can thus be considered a kind of symbolic reparation, integrating into the national narrative the fate of these minorities. That is why most French memory laws have been passed while, at the same time, France launched various policies of memory and acknowledgment covering a large part of its own history. For example, of the 15 National Days (“Journées nationales”), not including international commemorations, or Bastille Day, two were created before World War II (Joan of Arc’s feast and the armistice of November 11), three between 1946 and 1985 (May 8 Victory Day, Deportation Day, and Europe’s Day), and ten since 1993, during the memory boom, beginning with the commemoration of Vichy’s anti-Semitic crimes. This last one was the first French negative commemoration, and it was followed by many new commemorations on the Holocaust, the Algerian and Indochina wars, Colonialism, new commemorations of the Resistance, and the last one, in 2019, for the victims of terrorism.28 It is understandable that specific laws were necessary to create new rights or to give new status to people, or to punish new kinds of felonies, like the denying of major mass crimes, but one must keep in mind that these texts also led to unsolved legal knots. They dealt with real issues, rooted in the present, and addressed issues for living individuals: pensions for the Algerian war’s veterans still alive, or minorities libeled by the denial of their own or parent’s suffering. But what about legislating on remote 28  See the official site of the Ministry of Defense, whose list is incomplete www.defense. gouv.fr/memoire/memoire/ceremonies/ceremonies-nationales, accessed August 25, 2021.

44 

H. ROUSSO

events? Slavery in history has been without a doubt a crime against humanity in the common sense, but the need for such a contemporary judicial definition when there is nobody to punish, nor any reparation to claim, remains in question. Law is politics, memory laws are memory politics, and politics depends on a balance of powers. Nowadays, in many European countries under the rule of illiberal governments, for instance in Poland or in Hungary, memory laws are used not to redress the past in a progressive way but to revise it, and to promote the official denial of historical facts, that is, indigenous complicities in the Holocaust.29 The road to hell is often paved with good intentions.

29  See Delphine Bechtel and Henry Rousso, “Les politiques illibérales de Mémoire,” Mémoires en jeu/Memories at Stake 9 (2019).

CHAPTER 3

(De) Criminalizing the Past: Spain’s Legal Response to History, Memory, and Historical Memory Stephanie R. Golob

Introduction: Spain Is Different—Or Is It? In the early 1960s, as Spain began to emerge from the isolation of post-­Civil War autarky to embrace a new identity as a sunny tourist mecca, advertisements proclaimed from the glossy pages of magazines in the West the slogan “Spain is Different.”1 And within Europe, Spain really was different: a former Nazi ally magically turned Cold War partner, and a dictablanda whose The author gratefully acknowledges the financial and collegial support of the Spanish National Research Council (CSIC), Center for Humanistic and Social Science (CCHS) Research Projects CSO2009-09681, “The Politics of Memory in Contemporary Spain: Analysis of the Impact of Civil War Exhumations in the 21st Century,” (2011–2013), CSO2012-32709, “The Past Below Earth: Exhumations 1  Justin Crumbaugh, Destination Dictatorship: The Spectacle of Spain’s Tourist Boom and the Reinvention of Difference (Albany, NY: SUNY Press, 2009).

S. R. Golob (*) Baruch College and The Graduate Center, CUNY, New York, NY, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_3

45

46 

S. R. GOLOB

edges were smoothed by its reputation for providing safe streets in cities and cheap hotels at beaches. Fast-forwarding to contemporary times, Spain’s memory politics similarly appear to be fundamentally different from those of Spain’s European neighbors. Despite experiencing a devastating economic crisis in the past decade, nostalgic, authoritarian, xenophobic, and nationalistic populism is not the leading edge of its politics of the past. Instead, the major cleavage in Spanish memory politics has been between those who demand public remembrance of long- forgotten crimes and victims of the Civil War and the Franco era, and those who deem such remembrance a violation of norms central to the democratic transition—in particular, the implicit agreement to exile the past from present politics. This different kind of memory war was most recently on view between 2018 and 2019 in the fierce public debate about exhuming the remains of Generalísimo Francisco Franco from the Valley of the Fallen, the massive polemical mid-century monument to the Civil War dead he ordered constructed just outside of Madrid.2 Once a newly installed Socialist and Memory Politics in Contemporary Spain in Transnational and Comparative Perspective,” (2014–2016) and CSO2015-66104-R, “Below Ground: Mass Grave Exhumation and Human Rights in Historical, Transnational and Comparative Perspective,” (2017–2019). Special thanks go to their Principal Investigator, Francisco Ferrándiz Martín, and to the outstanding interdisciplinary, international research team he assembled, for sharing their knowledge so generously, and for their critical comments on earlier iterations of this work. All insights bear the imprint of their contribution; all errors are my own. Also gratefully acknowledged is the constructive critical feedback provided by participants in the workshop, “Memory Laws: Criminalizing Historical Narrative,” (Columbia University, October 27–28, 2017); the international conference “Bodies Out of Place: Masws Violence, Mass Graves and Necropolitics,” (University of the Basque Country, July 18–21, 2018); and the workshop, “Circulating across Europe? Transgressive Narratives about the Past,” (Harvard University, August 28–29, 2018). Generous support has also been provided by the PSC- CUNY Research Award Program of the Research Foundation of CUNY and the Dean’s Office of the Weissman School of Arts and Sciences at Baruch College-CUNY. 2  Natalia Junquera, “El gobierno prepara la salida de Franco del Valle de los Caídos,” El País (June 17, 2018) elpais.com/politica/2018/06/16/actualidad/1529162410_486351. html, accessed August 22, 2021. The PSOE claimed it had the legitimacy to move ahead, even via a royal decree, given that they sponsored a successful non-binding proposition (Proposición no de Ley) to that effect back in May 2017. On the controversy set off by the return of memory politics at that time in both Spain and the U.S., see Stephanie R. Golob, “Memoria sin excepciones,” El País, June 29, 2017, elpais.com/elpais/2017/05/31/opinion/1496218116_864281.html, accessed August 22, 2021.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

47

government—after a decade out of power—announced its plans in the summer of 2018, it was immediately met with praise from other parties of the left, victims’ groups and human rights NGOs, on the one hand, and counter-­mobilization—on the Internet and at the Valle—in defense of “heritage” by traditionalist and fringe pro- Franco groups, on the other. But the sound and fury of the fringe merely distracted from the left’s true antagonist in this wrangling over the past: a “silent majority” which responds either with defensiveness or with indifference to their calls for memory and justice. Masterful in its (de-) mobilization of this group, the main center-right political party returned to its habitually apocalyptic, yet effectively pro-status-quo, rhetoric in this matter, warning that such “historical memory” policies would “break Spain” because they would destroy the hard-earned social peace inherited from the forward-facing Transition. Franco’s remains did leave the Valle in October 2019, Spain did not break, and the issue again took a backseat to pressing matters such as Catalán separatism and (more recently) the coronavirus pandemic. This is a cyclical, endogenous debate about unfinished business, one that rose again in the new millennium and re- emerged with the return of the left to power, rather than one that has responded to the diffusion of European political trends inciting the politics of the past and infusing it with populist ire. And yet, as this chapter will argue, beneath this dynamic lies a deeper debate about legal-cultural3 beliefs that have bolstered and enforced “Spanish exceptionalism”—is Spain “different” enough to claim an exception to confronting its violent past? Recast this way, memory politics in Spain actually share a great deal with emerging European patterns: a globalized universalist civil society-based movement mobilizes international law and human rights norms to confront a protectionist, nostalgic view that venerates not authoritarianism per se, but rather the negotiated Transition (impunity being the price paid for democracy) as the 3  Comparative law  scholars Rogelio Pérez-Perdomo and Lawrence M.  Friedman define “legal culture” as “the cluster of attitudes, ideas, expectations, and values that people hold with regard to their legal system, legal institution, and legal rules…[eventually shaping] the patterns of demands on the legal system.” They also distinguish between internal legal culture, which refers to the beliefs and practices within the legal system itself, held by practitioners such as judges, lawyers, and other related professionals such as paralegals, court officials, and even civil servants; and external legal culture, which encompasses the beliefs and expectations of the public. See Rogelio Pérez-Perdomo and Lawrence M. Friedman, “Latin Legal Cultures in the Age of Globalization,” Legal Culture in the Age of Globalization: Latin America and Latin Europe, eds. Lawrence M. Friedman and Rogelio Pérez-Perdomo (Stanford, CA: Stanford UP, 2003) 2.

48 

S. R. GOLOB

centerpiece of a heroic national narrative. In Spain, the former is led by the memoria histórica movement in civil society, aided by individual judges and members of the legal profession, who embrace twin internationallegal narratives asserting the rights of “the disappeared” and condemning “denialism.” Confronted with a revisionist narrative of the Transition critical of impunity and insistent upon state responsibility to investigate international crimes, a conservative judiciary has mobilized its own legal-sovereigntist discourse upholding the central memory law of the Transition—1977 Amnesty Law—and defending legal certainty, rendered in Spanish as seguridad juridica, as if the citation of international legal norms in a Spanish court constituted a violation of sovereignty. Similarly, the center-right, both in and out of power, has mobilized a nationalistic discourse of nostalgia not for Franco, but for the Transition, and in particular its legalistic, forward-looking pact centered on the idea of equidistancia, whereby if both sides were equally to blame for the Civil War, both sides could let bygones be bygones. The legal framework that institutionalized this deal—the Amnesty Law of 1977 and the 1978 Constitution— provided guarantees that the past would stay out of Spanish politics, and from there, as the heroic narrative goes, Spain went on to become “the very model of a modern elite settlement,” in the words of leading political scientists of the day.4 And as a model, its new heroic national narrative of reconciliation meant that no looking back was required, or expected. Thus, while the right in Europe today is asking whether enough is enough regarding Holocaust responsibilities, in Spain the responsibility (or lack thereof) of the State to investigate franquista crimes has formed a legal, ethical and political third rail. Likewise, by giving the equidistancia narrative the force of law and relegating Franco’s victims’ memories of repression into legal limbo—a dual process I will call here legal remembering and societal forgetting—the 1977 Amnesty Law has served the function of a memory law, legislating the limits of remembrance and forming the untouchable and inviolable heart of Spain’s exceptional democratic order. In this chapter I will argue that in post-Franco Spain, law and legal narrative have been mobilized by both sides of the nation’s “memory wars,” serving as the key vehicle for both maintaining the hegemonic exceptionalist Transition narrative and for challenging it. I seek to interrogate this dynamic through a legal-cultural analysis of the Socialist government’s 4  Richard Gunther, “Spain: The Very Model of a Modern Elite Settlement,” Elites and Democratic Consolidation in Latin America and Southern Europe, eds. John Higley and Richard Gunther (Cambridge: Cambridge UP, 1992): 38–80.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

49

2007 Law of Historical Memory, infused with universal rights talk and yet ultimately constrained within the legal, cultural, and institutional limits set by nostalgic “exceptionalist” norms. Though it disappointed one side and enraged the other, over a decade later this emblematic law—which provoked local efforts to fill its gaps and recent efforts to reform it on the national level—provides a window into the legislative dimension of Spain’s unresolved memory wars, and how those conflicts fit into the context of a continent whose past is at the center of its democratic future.

A Brief History of Spanish Exceptionalism: Legal Remembering, Societal Forgetting, and the Hegemonic Heroic Narrative of the Transition It is easy, on the surface, to see why the law mattered so much to so many of the elites participating in Spain’s “pacted” transition to democracy, forged in the tumultuous years of negotiation and the social mobilization that followed the death of Generalísimo Francisco Franco in 1975.5 Regime loyalists looked to the law as a means of fulfilling the deathbed directive of their leader: if there would not be direct continuismo of oneman rule, then the legal order needed to “tie up, good and tight” (“atado y bien atado”) the social, economic and political hierarchy.6 A market economy, a special relationship with the Catholic Church, and provisions for “exceptional” circumstances under which the military could intervene to maintain order: all of these would need to be legislated. Others more on the center of the right viewed the law as the means of securing the stability and guaranteeing the rights (with an emphasis on property) that would give Spain entrée into the European Community, with all of the material and ideological benefits that would bring. Demonstrating good behavior to investors, Spain was poised to leverage a modernized legal and

5   On the workings of the “pact,” see Gunther, Ibid., and more recently, Omar G. Encarnación, Democracy Without Justice in Spain: The Politics of Forgetting (Philadelphia, PA: University of Pennsylvania Press, 2014). 6  For a critique of the rational pacting view, focusing on the weaknesses of the regime vis a vis civil society, see Ignacio Sánchez-Cuenca, Atado y mal atado: El suicidio institucional del franquismo y el surgimiento de la democracia (Madrid: Alianza Editorial, 2014); for mistakes made on the left that permitted continuismo, see Ferran Gallego, El mito de la transición: La crisis del franquismo y los orígenes de la democracia, 1973–1976 (Barcelona: Crítica, 2008) esp. 482–598.

50 

S. R. GOLOB

regulatory order to lift itself out of obscurity to join its continental brethren in peace and prosperity. Ironically, it was the radical left—since all left-wing political parties were banned, this encompassed the entire spectrum of socialist and communist parties—that helped forge the legal narrative that proved essential for the Transition and its subsequent ideological legitimation.7 In negotiations with pro-regime elites, the left’s aim was two-fold: amnesty—for left-wing political prisoners—and the re-legalization of the Communist Party, still a bridge too far for the heirs of Franco in the continued context of the Cold War. In exchange, the left would accept reconciliation as a purely forward-looking operation: impunity for crimes of the Franco era would be the price paid for achieving democratic rule of law, guarantees against future state repression based on political opinion, and an electoral system by which they could, in the future, return to power. What emerged from these negotiations was what I would cite as the most important “memory law” of the Transition, known widely as the Amnesty Law of 1977.8 The product of Spain’s first democratically elected (though pre-Constitutional) legislature, the law itself says nothing about memory, or about history for that matter. Rather, its text forms the beating heart of the Transition “deal”: a double amnesty that frees the political prisoners of the left while making any and all crimes committed by civil and military officials of the Franco regime not subject to criminal prosecution. This was not, then, a classic “self-amnesty” law, of the type perfected and promulgated by right-wing dictatorships in Latin America in the 1980s and 1990s. The outgoing authoritarian regime did not unilaterally protect its side; rather, underlying the Amnesty Law is a supposition that appeared to be accepted by both right and left, which has become known as equidistancia: since both sides in the Civil War (in Spanish, los dos 7  Dating back to its darkest days in exile, the Spanish Socialist Party debated its role in the polarization that weakened the fledgling Second Republic (1931–1939) and left it vulnerable to right-wing agitation and, in the end, a violent Civil War (1936–1939) and a repressive Nationalist-Catholic dictatorship. Emerging from these autocríticas was a consensus that the left would never be trusted to return to political life in Spain unless its leaders accepted responsibility for the Civil War, and sought reconciliation rather than confrontation. And so it was the Socialist Party (known by its initials PSOE) that moderated its rhetoric and achieved re-legalization through promises to foreground reconciliation. This history is recounted in Santos Juliá, Transición: Historia de una política española, 1937–2017 (Barcelona: Galaxia Gutenberg, 2017) 205–249. 8  For the text of the law as it was entered into the official record, see Ley 46/1977, de 15 de octubre de 1977, de Amnistía, Boletín Oficial del Estado (BOE) no. 248, disposition no. 24397, 22765.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

51

bandos) committed atrocities and bore responsibility for that fratricidal conflict, both sides have to turn together toward constructing democracy, rather than look back on the past. In effect, the 1977 Amnesty Law enshrined a particular way of remembering the Civil War—as a collective failure best left in the past—and, going forward, the Transition—as a collective success based on leaving that past behind. While critics would later refer to this as olvido—or a policy of collective forgetting—here I am arguing that selective legal remembering of this type induced selective societal forgetting, along the lines of a heroic legal narrative of the Transition. Historians would be free to examine the evidence and come to conclusions about which side had been at fault or more rapacious in its violence, but these conclusions (a) could have no criminal, legal or judicial consequences and (b) would be viewed within a consensual and hegemonic normative framework denaturing them and giving them no political weight in the present. At the moment of the Transition, it should be recalled, it was the Left that feared a constant recall of its “excesses” and “irresponsibilities” and actively sought this exit ramp onto the highway toward modernization and democracy. The construction of this heroic legal narrative of the Transition via the Amnesty Law had long-lasting legal consequences that were only recognized and mobilized in the new millennium. In the short run, the Amnesty Law had the effect of decriminalizing the violent acts that were committed in the name of public order by the Franco regime.9 Moreover, under the principal of legal certainty (seguridad juridica), Spain’s Constitution (1978) also protects individuals against the retroactivity of law, meaning that one cannot be tried under criminal law for acts now deemed illegal if they were legal when committed. Rather than victimless crimes, the Amnesty Law produced crimeless victims. Under the principle of equidistancia, the Amnesty Law ostensibly protected both regime supporters and opponents equally from retroactive prosecution. However, regime opponents had already been found criminally responsible under Franco-era laws. As Julius Ruiz’s groundbreaking 9  This was because Spain’s tradition of criminal law is focused on attributing a crime to a guilty party, or depuración de responsabilidad criminal. If regime officials, like their antiregime counterparts who were released from prison, could be considered free from criminal responsibility going forward, then investigation of evidence of any of these acts—torture, for example—would not lead to the identification of an “author” and therefore was not technically within the legal purview of the criminal justice system.

52 

S. R. GOLOB

study revealed, Franco developed a judicial system during the Civil War as part of a coordinated campaign to legitimate the Nationalist’s sovereignty over occupied territory, “re-conquered” (in a direct reference to the historic Reconquista by Christians over the Muslim Caliphate) from a Republic whose supporters he deemed foreign enemies (“la anti-­España”) in the name the “true” Spanish nation.10 Under this system, which was highly bureaucratized and disciplined, civilians—in particular, Republican elected officials—were tried as military combatants, and those that were not executed faced long prison sentences. After the war, these same prisons were filled past capacity with supporters of the Republic, with most of them being tried under the Law of Political Responsibilities as part of Franco’s answer to transitional justice, the massive Causa General, which retroactively criminalized support for the Republic going back to its inception in 1931.11 Also in line with Spanish legal traditions, those found guilty in these trials (without any guarantees) owed the State not only time served in prison, but also financial compensation, often left to wives, widows and other vulnerable family members to pay by selling homes, pawning jewelry, and liquidating businesses.12 Others had to pay off their debt to society in forced labor, often losing their lives in dangerous work such as road construction and building the massive Valley of the Fallen. Thus, equidistancia was not necessarily fully equitable: some would be tried twice for the same crimes, while others would not be tried at all. It is a tribute to the political skills of the Transition elites that the heroic Transition narrative survived its early years to become firmly consolidated—a feeling that was reinforced when, on February 28, 1981, the Congress of Deputies was taken hostage by leaders of an ostensible military coup. To this day, the 23-F serves as an emotionally charged reminder to society as a whole 10  See Julius Ruiz, Franco’s Justice: Repression in Madrid After the Civil War (Oxford: Clarendon Press, 2005) esp. 1–28. 11  For the text of the Law of Political Responsibilities, which was enacted before the war’s end on April 1, 1939, see LEY de 9 de febrero de 1939 de Responsabilidades Políticas, Boletín Oficial del Estado (February 13, 1939): 824, www.boe.es/datos/pdfs/ BOE/1939/044/A00824-00847.pdf, accessed August 22, 2021. 12  One such case is the wife of Blas Infante, a prominent Andalusian intellectual and politician who was charged with “revolutionary rebellion” under the Law of Political Responsibilities because he had participated in the elections of 1932 under the Republic. After his arrest and execution, his widow, Angustias García Parias, who was left with four children to support, found herself with a guilty verdict by association, and was forced to pay 2000 pesetas, which was an extremely large sum for the time. See María Serrano, “La ‘eterna’ sentencia sobre Blas Infante,” Público.es, August 10, 2018, www.publico.es/espana/andalucia-eterna-sentencia-pesa-blas-infante.html, accessed August 22, 2021.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

53

and to politicians across the political spectrum, that outside of the forwardfacing law lay chaos. The miraculous rescue from the abyss by none other than King Juan Carlos, Franco’s handpicked successor, further burnished the heroic Transition legal narrative and sent an additional message that revanchist elements must not be angered. Here, the Amnesty Law again served as a backstop, and as a memory law—it legalized and legitimated the acceptable boundaries of how far back society could look without dire consequences. Impunity, the judicious and pragmatic decision to withhold the prosecutorial power of the law in the name of social peace, not only was an unfortunate side effect of a moment of dangerous instability; rather, it would become the central and counterintuitive guarantor of democracy’s future.13 13  The heroic Transition legal narrative continued its march toward hegemony through and past Spanish democracy’s first decade. The election of the first Socialist government in 1982, signing the Single European Act in 1985, and the double victory laps of the Seville World’s Fair and the Barcelona Olympics in 1992 marked Spain’s arrival into the heart of democratic and modernized Europe. Meanwhile the return to power in 1996 of the centerright (the re-named Popular Party, or PP) after over a decade of Socialist rule also demonstrated the consolidation of a de facto two-party system at the national level, helped along by the agility of smaller regional and nationalist parties who facilitated governing coalitions. For most parties, pragmatism was front and center and ideology was on the back burner. In this context of rising incomes, Spain’s political agenda remained presentist and futurist at the most, with no room for looking backward. The exception to this rule, of course, was the constant undertow of the Transition and its legally entrenched exceptionalist consensus, linking impunity and the survival of democracy, and barring the past from present politics. I recognize that I am eliding here one other major source of Spanish memory politics, emanating from the Basque Country and its irredentist separatist/nationalist groups, both political and armed. It is beyond the scope of this paper to address Basque memory politics, but it should be noted that the consensus described here was resisted and rejected in many quarters in that region. The past—in particular the consistent delegitimation of Basque national aspirations and the particular fury with which Franco used the criminal justice system to impose a unitary Spanish national and cultural sphere (e.g., outlawing Euskera, the Basque language)—is essential for understanding the trajectory of Basque politics. Franco died in 1975, but Madrid remained a symbol of oppression even after the Transition, and after the Basque Autonomy Statute was approved giving the region control over taxes and education, special privileges not enjoyed by all Autonomous Communities. This type of symbolic politics was, at least on one level, based upon continuity of policies. The new democratic state showed zero tolerance toward ETA and its terrorist attacks, and as the GAL scandal of the late 1980s revealed, even under Socialist governments security forces engaged in brutal methods previously associated with the Franco era. In addition, convicted ETA militants were routinely incarcerated in prisons far from the Basque Country, a practice begun under Franco and continued under democratic rule. To this day, even after ETA has disbanded completely, there is still a strong civil society movement in towns and cities around the Basque Country calling for amnesty and protesting geographic dispersion of those still serving their sentences (which the new Socialist government has started reversing). Meanwhile, the center-right PP

54 

S. R. GOLOB

Spain’s Post-Millennial Memory Wars: A Battle of Legal Narratives If the Amnesty Law ostensibly decriminalized atrocities on both sides, enforcing a legal memory of equidistancia, what it did effectively criminalize was the transgressive heroic narrative of Republican memory, which remembered that era as Spain’s first modern experiment in democracy, and which should be seen as latent and cyclically reoccurring. This is what happened at the dawn of the new millennium, when the transgressive heroic narrative of Republican memory re-emerged into the public sphere and breached the barrier of Spain’s taboo on political memory. The pioneers were newly formed local memoria histórica (MH) civil society groups, led by the grandchildren of Franco’s victims, that revived the exhumation of mass graves starting in the year 2000.14 Refusing to take the judicial “no” for an answer, local groups under the umbrella of the Association for the Recovery of Historical Memory (ARMH)15 and the Forum for Memory (FpM)16 have mobilized a variety of experts—in forensics and DNA technologies—to develop protocols to locate, exhume and identify the remains of civilian Republican victims from Civil War- and postwar-era mass graves. While the ARMH has emphasized the familial and the universal/human rights dimensions, and the Foro has emphasized the collective leftist political and ideological dimensions, both groups display Republican flags at exhumations, public ceremonies and reburials, and make explicit connections in their public rhetoric between the Republican political commitments of victims and their targeting by Franco during and after the war. Similarly, groups like La Comuna Presxs del

has championed the rights of victims of ETA terrorism, demonstrating this party’s selective approach to memory politics—compensation and commemoration of these victims is viewed as compatible with the Transition’s constraints on politicizing the past. 14  For background, see Carlos Jerez-Ferrán and Samuel Arango (eds.), Unearthing Franco’s Legacy: Mass Graves and the Recovery of Historical Memory in Spain (Notre Dame, IN: Notre Dame UP, 2010). 15  For a description of the ARMH’s founder’s life-altering experience in 2000 searching for his missing grandfather’s remains (and a manifesto of sorts for the MH movement), see Emilio Silva Barrera and Santiago Macías, Las fosas de Franco: Los republicanos que el dictador dejó en las cunetas (Madrid: Ediciones Temas de Hoy, 2003). For the website of the ARMH, see: www.memoriahistorica.org.es/joomla/, accessed August 22, 2021. 16  For the Foro por la Memoria’s website, see www.foroporlamemoria.info/, accessed August 22, 2021.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

55

Franquismo17 represent former political prisoners and their relatives from the latter years of the regime (mid-1950s-mid-1970s), who vindicated the Republic through resistance to dictatorship, and who today raise awareness of the crimes of the regime up to its very end. The aim is to counteract the legal narrative of equidistancia by underscoring a justice deficit inherited by Spain’s democratic state that belies any legal adjudiction of equal burden or equal guilt. There are four key elements of this emerging legal narrative that confronts and dismantles Spanish legal exceptionalism. The first is reinstantiating the legality and democratic legitimacy of the Second Republic and typifying Franco’s victory as that of an insurgent military that launched an illegal coup based on a fascistic extreme religio-nationalist ideology. As such, the heroic narrative of the Transition was less a ‘virgin birth’ than it was an original sin: there had been a progressive democracy before, but its legacy was denied so that Franco’s heirs could enjoy the erasure of their own past. Second, Franco, formally allied with the leading Fascist powers of the day, Hitler and Mussolini, shared their goal of defeating “degenerate” democratic European adversaries, and embraced the dehumanization of political and ideological opponents (concentration camps, bombing civilians, trying civilians and political officials in military tribunals, summary executions, removing babies and children from Republican parents deemed dangerous). Thus, rather than an exception to Europe’s history, Spain’s own fight against fascism places it in the heart of a story that should have ended with prosecutions and not with impunity. Next, the massive and systematic targeting of political opponents for elimination, both during the war and in postwar repression, constituted crimes against humanity, for which there are no statutes of limitations. These crimes therefore must be viewed through an international human rights law lens that allows for no exceptions based upon political deals or claims to a societal consensus on a memory of equal legal and moral responsibility. Finally, the conclusion to be drawn from this persistent state of impunity—with the remains of hundreds of thousands of “crimeless victims” still in mass graves—is that the post-Transition democratic Spanish state has failed to live up to its international legal obligations under human rights law and jus cogens. Spanish judges and politicians cannot in good faith continue to

17  See their manifesto, ¿Por qué La Comuna?, www.lacomunapresxsdelfranquismo.org/ manifiesto/por-que-la-comuna/, accessed August 22, 2021.

56 

S. R. GOLOB

defend impunity as the necessary defense of democracy, when it is, in fact, a threat to Spain’s internal and external democratic legitimacy. This new universalist legal narrative draws a perhaps overly simplistic direct line between the Second Republic and Spain’s democracy today, which is a constitutional monarchy and is, in many other respects, far more moderate and “liberal” in both the free market and free politics senses. Still, such a revisionist view is better understood as a lever inserting a new legal narrative designed to re- legalize the Republic, place it in the context of the fight against European fascism in the 1930s, and thereby connect Spain’s post-Franco democracy to the evolution of human rights norms at the center of “European norms” throughout the postwar and post-Cold War era. A key element supporting Spanish legal exceptionalism is the sense that Spain did not travel the same road as the rest of Western Europe after 1945; its path to democracy was different, and so its commitment to the progressive post-Holocaust narrative of cosmopolitan human rights (Universal Declaration Genocide Convention, Covenant of Civil and Political Rights) came about as a result of its Transition. In other words, without the Transition—without the pact, the Amnesty Law and equidistancia—the embrace of international norms and European identity would not have been possible. By contrast, the universalist MH movement does more than reject this causal narrative; it critiques the Transition as an obstacle to the embrace of human rights and European values. In addition to their personal claims, these groups claim a collective, social responsibility to break the legal, logical, and normative bond between impunity and democracy. As such, it is not surprising that this challenge to the status quo would provoke a vigorous defense of the heroic Transition legal narrative by those who benefited most directly from it: the heirs of the pro-regime right wing whose democratic credentials depended upon the preservation of the forward-facing “pact” that exiled the past from present politics. From the start of the post-2000 mass grave exhumations, the center-right Popular Party (PP) dismissed the demands of the MH movement as irresponsible, needlessly provocative, and borderline disloyal. In particular, its rhetoric stressed the divisiveness of the return of the past into present politics, accusing MH groups of purposefully undermining the social peace that has undergirded Spanish democracy to date. The PP has counted on the fact that their own voters are, in general, more concerned with economic issues, and in general agree with the heroic Transition narrative.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

57

Indifference, not opposition, is all they need to keep the MH issue from gaining electoral traction. The PP can also count on a number of other national institutions to support their defense of the exceptionalist ramparts against MH assaults on the heroic Transition legal narrative. First and foremost, they can effectively rely on the judiciary, also a bastion of conservative values and dominated by the elective affinities of conservative, typically affluent jurists who gravitate toward the profession. As noted by Toharia, Spain’s judicial culture is influenced by the civil law tradition that sees judges as administering law, very careful not to expand the realm of interpretation.18 For that reason, when presented with evidence from located mass graves, it became pro forma for local judges to cite the 1977 Amnesty Law in their decisions refusing to open a judicial investigation. The ramparts were again defended when renegade Judge Baltasar Garzón—famous for attempting to extradite and prosecute Augusto Pinochet, Chile’s former dictator—was tried in the Supreme Court for judicial misconduct for attempting to open such a criminal investigation that legally recognized the mass graves as evidence of crimes against humanity. The Supreme Court’s ruling, in February 2012, exemplifies the judiciary’s rhetorical defense of the hegemonic heroic Transition legal narrative and adds an important element: the defense of national law from the foreign ‘incursion’ of international law.19 In addition to the judiciary, the PP can count on a number of other conservative, Transition-venerating national institutions that consistently bolster the dominant legal narrative, among them the Roman Catholic Church and the military. Both institutions embraced equidistancia and the 1977Amnesty not only for obvious self-interest, but also as a legitimating mechanism of post-authoritarian self-reinvention. Another key group—what Spaniards call “los ultra,” or the Franco nostalgics of the far right, has served for many years as the useful foil that has allowed the conservative groups to burnish their democratic credentials and claim a pragmatic middle ground between two “dangerous” extremes hitting the wasp’s nest of memory politics (the other being the MH movement). More recently, even as the PP has entered into 18  José Juan Toharia, “The Organization, Functioning, and Evaluation of the Spanish Judicial System, 1975–2000: A Case Study of Legal Culture,” in Friedman and PérezPerdomo, Legal Culture in the Age of Globalization, 378–80. 19  Tribunal Supremo, Sala de lo Penal, Sentencia No. 101/2012, Causa Especial No. 20048/2009, Fecha Sentencia February 27, 2012, *Causa especial: Prevaricación judicial. Los denominados ‘juicios de la verdad.’ Interpretación errónea del Derecho e injusticia.

58 

S. R. GOLOB

coalition governments with Vox, a new far-right party, it has maintained its line as the keeper of the Transition flame Faced with this backlash, the MH movement benefited from a final twist of fate: the embrace of a “historical memory” agenda by the Socialist Party (PSOE), which came to power unexpectedly and dramatically in the wake of the 11-M train bombings in 2004. Experiencing generational change away from the Greatest Generation that made the Transition, the PSOE was led by a youthful prime minister, José Luis Rodríguez Zapatero, who was himself a grandson of a victim of Franco. The PSOE’s MH agenda could also be understood as one piece of a broader “agenda of rights” that formed a central element of the party’s 2004 electoral platform. This agenda included same-sex marriage, stronger measures against gender-based violence, and a new “Education for Citizenship” curriculum that stressed European values and universal human rights. In this new political context, and heading toward the 70th anniversary of the outbreak of the Civil War in 2006, suddenly memory politics was mainstream, and a new kind of memory law was introduced that codified a new right—the right to personal and family memory—and confronted the legal taboos of the Transition head on. In the next section, I will analyze this law, arguing that for all its innovation and confrontation, it was no match for the hegemonic legal-exceptionalist narrative.

The 2007 Law of Historical Memory: Universal Rights, Particular Constraints Soon after coming to office in 2004, the Zapatero government signaled its newfound commitment to memory politics by convening an interministerial commission, chaired by first vice president, María Teresa Fernández de la Vega, to study a new law that would potentially meet the MH movement’s demands for “truth, justice and reparation.”20 At first glance, the law that resulted from this consultative process, the 2007 Law of Historical Memory,21 qualifies as “landmark legislation” in Spain 20  For the final report, see Informe General de la Comisión Interministerial para el estudio de la situación de las víctimas de la Guerra Civil y del franquismo (tabled July 28, 2006), www.memoriahistorica.gob.es/es-es/LaLey/Documents/InformeVictimas.pdf, accessed August 22, 2021. 21  Ley 52/2007, de 26 de diciembre, por la que se reconocen y amplian derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la guerra civil y la dictadura [known colloquially as the Ley de Memoria Histórica; I will use the initials

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

59

in a number of ways. Its very title breaks ground by referring to the Franco regime as “the Dictatorship,” and it defines as a victim class “those who suffered persecution or violence” during the Civil War and during the long decades of authoritarian rule that followed. The latter time period mentioned is significant because it challenges the equidistancia legal narrative: while those on the winning side,  who were targeted during the Civil War but not afterward, are technically included, their rights do not need to be “recognized or expanded,” whereas those who suffered at both moments require such action from the state in order to produce juridical equality under the law. But more significantly, as expressed in the introductory “Exposition of Motives” section, the law is designed to promote “democratic memory,” which in legal-cultural terms means a democratization of the narrative of guilt and innocence beyond the artificial limits set by the Amnesty Law as the arbiter of national memory. Instead, the LMH aims to recast the narrative of “reconciliation” from the Transition, arguing that “full knowledge of, and reflection on our history” via the full inclusion of the persecuted and their suffering into the national narrative will benefit not only victims finally recognized as full citizens, but also “Spanish Democracy in its full sense.” Rather than its necessary ingredient, impunity, in this new formulation, is incompatible with democracy. The deeper contribution of the LMH to legal-cultural transformation lies in this incorporation of universalist ‘rights talk’ throughout the text, with its most significant innovation being the articulation of a “right of all citizens to personal and family memory.”22 This right is not subject to restraint based upon political affiliation, ideology, gender, race, religion, or any other categorization that the state might attempt to delegitimize. Rather, it is a citizenship right that is based upon equality before the law and a human right based on equality as human beings. This right, then, has a series of consequential effects in the LMH: it undergirds the right to a Declaration of Reparation from the government, as well as the rationale for government funding for pensions and for the professionalization and subsidization of mass grave exhumation procedures. This same right LMH in the text to denote this law]. leymemoria.mjusticia.gob.es/cs/Satellite/ LeyMemoria/es/memoria-historica-522007, accessed August 22, 2021. 22  For a full analysis, see José María Sauca Cano, “El derecho ciudadano a la memoria histórica: Concepto y contenido,” Derecho y memoria histórica, José Antonio Martín Pallín and Rafael Escudero Alday (cords.), 73–104., esp. 84–85.

60 

S. R. GOLOB

sustains the emphasis placed upon consolidation of documentation and improved access to archives and funding for their maintenance—note also the renaming of the Civil War Archive in Salamanca as the “Archive of Historical Memory.” In keeping with the mention of human rights throughout the text, several other universalist ideas are evident: the right to know, or to the truth,23 and the connection of that right to the responsibility of states to investigate crimes against humanity as part of a guarantee of non-repetition. Furthermore, the law itself engages in a form of “legal remembering” by including in its text a statement regarding the injustices visited upon Franco’s opponents via quasi-legal and judicial institutions designed to punish support for the Republic during and after the war. First, Article 2 declares “radically unjust” such repression based on “membership in political parties, unions, religious groups, secret societies, Masonic lodges, resistance groups…as well as conduct associated with linguistic and cultural options, or with sexual orientation.” Similarly, it declares equally unjust the fact that so many Spaniards were forced by this repression into exile. Both of these statements place the historical experience of those outside of the margins of regime acceptability squarely back into the national narrative. Moreover, their status as victims of injustice reverses the implied guilt imposed not only by Franco’s Law of Political Responsibility (also abrogated in the LMH), but also by the narrative of equidistancia embodied in the Amnesty Law. The weight of responsibility thereby shifts from the Republic’s supporters, long considered guilty of bringing Spain to the brink of destruction, to the current democratic government, which has an obligation to compensate victims of such state atrocity.

23  For an excellent genealogy of this norm in its region of origin, Latin America, see Juan E.  Mendez, “An Emerging ‘Right to Truth’: Latin American Contributions,” Legal Institutions and Collective Memories, Susanne Karstedt, ed. (Portland, OR: Hart Publishing, 2009) 41–60. See also United Nations, Human Rights Council, Resolution 9/11, “Right to the Truth,” September 18, 2008, ap.ohchr.org/documents/E/HRC/resolutions/A_HRC_ RES_9_11.pdf. For a more extended analysis, see United Nations, Economic and Social Council, Commission on Human Rights, 62nd Session, “Promotion and Protection of Human Rights: Study on the Right to the Truth,” Report of the Office of the United Nations High Commissioner for Human Rights, E/CN.4/2006/91, February 8, 2006, daccess-ddsny.un.org/doc/UNDOC/GEN/G06/106/56/PDF/G0610656.pdf?OpenElement, accessed August 22, 2021.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

61

Then, Article 3 goes further: it contains a “Declaration of Illegitimacy” which condemns Franco’s legalized and judicial repressive apparatus during and after the war, citing the Tribunal for the Repression of Masons and Communists, the Tribunal for Public Order, the Tribunal for Political Responsibilities and the military trials (consejos de guerra) which tried civilians as enemy combatants “for being against Law and for violating the most basic requirements of the right to a fair trial.” Finally, a separate paragraph declares to be “illegitimate, for vices of form and content” the sentences of courts during the Dictatorship “against those who defended the previous legal authority [i.e., the Second Republic], sought to reestablish a democratic regime in Spain, or lived according to lifestyles protected by rights and liberties today recognized by the Constitution.” The law thus reminds Spaniards that what was really transgressive was not the Republic per se, but rather the criminalization of dissent under Franco, with executions for political crimes occurring all the way up to his death in the mid-1970s. One can also see the influence of European postwar and post-Cold War symbolic memory politics in the LMH. Specifically, some of the strongest provisions in the law, located in Articles 15 and 16, address the built environment, enjoining municipalities and other levels of government to identify and dismantle public works that “exalt the uprising and the consequent Dictatorship.” Street names, monuments, and other commemorations would have to be studied, identified, and if found to be in violation of the law, dismantled or removed to a more appropriate location (warehouse, or museum). Here, the law ‘remembers’ the 1936 uprising and the post-1939 dictatorship as historical events that should not be celebrated and commemorated uncritically. In particular, Article 16 sets an agenda of resignification for the most egregious case of such commemoration, the Valley of the Fallen monument outside of Madrid, Covered in Falangist symbols and built into a mountain under an enormous crucifix, the Valley symbolizes the regime’s particular idea of ‘reconciliation’ as complete Republican submission. At the same time, the LMH is, in many ways, less transformational than meets the eye. In particular, the text still lives very much within the constraints of legal exceptionalist norms, and thus perpetuates them. First and foremost, there is no attempt to reform the Amnesty Law to make it possible to investigate evidence of human rights violations, as seen in the mass graves and also in the testimony of former political prisoners. This is the case despite the widespread acceptance among Western democracies of

62 

S. R. GOLOB

international jurisprudence claiming the incompatibility of domestic amnesty laws and state obligations under human rights treaties. Indeed, the LMH is very vague and somewhat contradictory in terms of its acceptance of such state obligations under international law, hewing instead to a more ‘protectionist’ view of domestic legality. This is particularly noteworthy in the aforementioned Articles 2 and 3, which proclaim the “illegitimacy” of Franco’s justice but do not vacate sentences or rehabilitate those who were condemned of crimes such as treason and rebellion retrospectively for being elected officials of the Republic. In fact, in their testimony during consultations with the Interministerial Commission, MH groups put the nullification of condemnatory sentences at the top of their demands for the new law. This is not at all surprising, given the universalist legal culture these groups were advancing. These groups looked to the law to perform what Ruti Teitel has described the “before and after” that demarcated a corrupt dictatorial order from one based on liberal rule of law.24 From this vantage point, the amnesty not only provided impunity for perpetrators, it was unjustly protecting the democratic state from fulfilling its legal obligations to a class of citizens, first and foremost among them the legal recognition of them as victims, not criminals. Vacating the sentences would fully rehabilitate those unjustly condemned, both legally and symbolically, and officially shift the valence of Franco’s opponents from criminal to victim and from “la anti-España” to full citizens. The idea was studied, but in the end, the commission claimed that it was not possible to vacate sentences without threatening the principle of seguridad jurídica, or legal certainty, central to the rule of law. Under this principle, retrospective application of the law undermines the fairness of the legal order, such that a slippery slope then makes all of Spain’s criminal law subject to revision. While it is true that retroactivity is, according to positivist legal thought, the enemy of fairness, there are exceptions made under international law for crimes that are considered beyond the pale for and in all nations—international crimes under what is known as jus cogens in customary international law. As Francisco Ferrándiz’s ethnographic research has demonstrated, in the face of domestic legal and political intransigence, Spain’s MH movement has appropriated the language of international law, arguing that international crimes such as forced disappearance and torture were committed by Franco starting in 1936 and over  Ruti Teitel, Transitional Justice (New York: Oxford UP, 2000) 9.

24

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

63

four decades of dictatorship.25 They use the term “the disappeared”— which came into parlance in the 1980s in Latin America—to refer to the thousands of victims of Franco whose remains are in unmarked graves, and the graves themselves are presented routinely as evidence of a systematic policy of eliminationism congruent with “crimes against humanity.” In their universalist view, international law is a higher law, and in the face of a deficit vis-à-vis international law, domestic law must be reformed and revised to expand the realm of rights accordingly. By contrast, the defense of seguridad jurídica reflects a protectionist posture: it is the Transition that secured democracy, and anything that might dislodge any of the deals has the potential to break the national bond and unravel the society. The LMH bore other indications of a reluctance of the PSOE to break free from the constraints of the legal exceptionalist paradigm. The right to “personal and family memory,” as it was articulated, allowed the central government to privatize memory rather than develop robust public policies that would place the state’s own role in ‘truth, justice and reparation’ at the center. Even purely symbolic acts, such as an official apology or a ceremony of remembrance, were avoided. The right to personal memory entitled family members of victims to request a Certificate of Rehabilitation, but this was mailed to the family, not presented in a formal, public ceremony. While clearly an improvement upon  dependence solely on the extra-legal, ‘do it yourself’ procedures that had developed for mass grave exhumation after 2000, the state assistance measures described in the LMH amount to what Francisco Ferrándiz has critically assessed as “human rights outsourcing.”26 Civil society groups could now receive subsidies to cover the costs of location, identification of remains, exhumation, reburial, and public ceremonies, and there was an effort made to create a common scientific protocol. Still, the government continued to avoid taking a direct role. The mass grave map that was publicized by the government on the Ministry of Justice “Historical Memory” website depended upon self-reporting by local groups, rather than a state-led census, and funding for DNA testing technology was on a case-by-case basis, rather than a coordinated effort to spearhead a nation-wide DNA databank. But most of all, the LMH did not open a path for victims and their 25  Francisco Ferrándiz, “From Mass Graves to Human Rights: The Discovery of Forced Disappearances in Contemporary Spain,” Revista de Antropología Social 19 (2010): 161–189. 26  Francisco Ferrándiz, “Exhuming Defeat: Civil War Mass Graves in the 21st Century,” American Ethnologist 40.1 (2013): 41.

64 

S. R. GOLOB

families to bring cases in the judicial system and get a judicial inquiry. It did not even require judges to appear at exhumation sites and see the mass grave before invoking the Amnesty to close the case. The sacred, untouchable nature of the Amnesty Law permitted judges, as the representatives of the judicial branch of the Spanish democratic state, to continue to close cases, sight (and site) unseen.

Back from the Dead: The PSOE Returns to Memory Law-Making After 2011, having defeated the PSOE at the polls with an absolute majority, the PP and its leader, Prime Minister Mariano Rajoy, could safely say that there would be no place on the national political agenda for the PSOE’s experiment in “historical memory” policy. But while the hegemony of the protectionist/legal exceptionalist side appeared to re-­consolidate, the universalist side honed their legal narratives in two arenas—global and local— during their time in the wilderness. On the global side, starting in 2010, hundreds of victims and their families overcame blockage at home and filed claims in the courts of Argentina under the figure of universal jurisdiction, (Querella Argentina).27 Meanwhile, MH groups testified before the UN Special Rapporteur for Truth, Justice and Non-Repetition, Pablo de Grieff, during his historic fact-finding mission to Spain in 2014.28 In these arenas, civil society groups, legal and legislative allies bolstered two key elements of 27  There are two main requirements for such cases to prosper: (1) there must be evidence of international crimes, which are not subject to statutes of limitations and for which there is a state obligation to investigate, no matter where or when they took place; (2) there must be evidence, according to the principle of complementarity, that the state in question is not currently investigating or prosecuting the crime. For the full text of the initial lawsuit filed on April 14, 2010, see “Promueven querella criminal por la comisión de los delitos de genocidio y/o lesa humanidad que tuvieron lugar en España en el período comprendido entre el 17 de julio de 1936 y el 15 de junio de 1977,” viejositio.apdh-argentina.org.ar/asuntos_juridicos/ trabajos/querella_crimenes_franquismo.pdf. For detailed description of the case, see the website of the main umbrella civil society support organization, Coordinador Estatal de Apoyo de la Querella Argentina (CeAQUA), Dossier de Actividad, www.ceaqua.org/dossier-de-actividad/. On the theory and implementation of the principle of universal jurisdiction, see Stephen Macedo, Mary Robinson et. al., Princeton Principles on Universal Jurisdiction (Princeton: Program in Law and Public Affairs, Princeton University, 2001). 28  United Nations, General Assembly, Human Rights Council, Twenty-seventh Session, Report of the Special Rapporteur on the promotion of truth, Justice, reparation and non-recurrence, Pablo de Greiff, Mission to Spain (July 22, 2014) A/HRC/27/56/Add.1.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

65

the universal legal narrative: that there had been international crimes committed by the Franco regime subject to state obligation to investigate; and that Spain’s identity as a democracy was diminished by impunity and enhanced by confronting the past.29 At the same time, in a context of inaction at the national level under the PP, the motor of memory politics shifted to the local level. The splintering of the de facto two-party- dominant system in 2016 produced many left-­ leaning coalition governments on the municipal level (Madrid and Barcelona being the primary examples), and also on the level of the autonomous communities. Indeed, of the 17 autonomous communities, all but one have passed their own LMHs, providing subsidies to local MH groups for locating and exhuming mass graves, recording testimony of witnesses to atrocities, opening museum exhibitions, placing plaques in cemeteries and legislating the changing of street names, among other policies. Some governments have also sponsored a census of victims, a map of mass graves, and new education curricula that place historical memory into the context of human rights and democratic citizenship. These initiatives have responded to the policy vacuum at the national level, in some cases establishing dedicated memory-related institutions (such as Gogora in the Basque Country,30 and the Memorial Democràtic in Cataluña31), and in others creating government agencies dedicated to ‘historical memory’ (as in Andalucía32 and Navarra33). This supply of policies also has responded to local demand, since most repression during the Civil War and the postwar was quite localized: neighbors participated in the extrajudicial killings of their neighbors, and Franco’s judicial system sent many of those arrested in occupied territory to be shot in their hometowns.34 Local knowledge  Ibid., para. 100, 19.  Gogora, Institute for Remembrance, Coexistence and Human Rights, www.gogora.euskadi.eus/aa82-home/en/, accessed August 22, 2021. 31  Memorial Democràtic, Generalitat de Catalunya, memoria.gencat.cat/ca/organismes/ memorial-democratic/, accessed August 22, 2021. 32  Consejería de la Presidencia, Administración Local, y de Memoria Democrática, Junta de Andalucía, www.juntadeandalucia.es/organismos/presidenciaadministracionlocalymemoriademocratica/areas/memoria-democratica.html, accessed August 22, 2021. 33  Dirección General de Paz, Convivencia y Derechos Humanos, Gobierno de Navarra, www.navarra.es/home_es/Gobierno+de+Navarra/Departamento+Relaciones+Ciudadanas +Institucionales/Dg+paz+convivencia+derechos+humanos.htm, accessed August 22, 2021. 34  See, for example, Peter Anderson, “In the Interests of Justice? Grass-roots Prosecution and Collaboration in Francoist Military Trials, 1939–1945,” Contemporary European History 18.1 (2009): 25–44; and Michael Richards, Time of Silence: Civil War and the Culture of Repression in Franco’s Spain, 1936–1945 (Cambridge: Cambridge UP, 1998). 29 30

66 

S. R. GOLOB

also plays a critical role in the location of mass graves, and as many witnesses are well into their 80s and 90s, there is added urgency to push for coordination and funding from municipalities and regional governments. Finally, municipal governments have the most immediate authority over the built environment. In two emblematic cases, the mayor of Madrid convened a panel of experts that recommended changing the names of over 50 streets,35 and the mayor of Pamplona ordered the removal of the remains of one of the leaders of the 1936 coup from a monument controlled by the city.36 By the time the PSOE made it back to power under prime minister Pedro Sánchez—again dramatically, following a rare no-confidence maneuver in 2017—these acts of legal remembering at the local and global levels generated momentum toward a renewed effort at the national level to confront legal exceptionalism. The PSOE’s renewed MH agenda was most visibly symbolized by the efforts—launched in 2017 and achieved in 2019—to exhume Franco’s remains from the Valley of the Fallen. But there were less visible changes, inside the government, that marked a shift in the levers of policymaking toward implementing the LMH. First, the Sánchez government inserted the MH agenda directly into the structures of governance. The first phase of this institutionalization came in 2018 with the naming of a Director General for Historical Memory within the Ministry of Justice, charged with coordinating policy design and implementation across ministries.37 A bigger step was taken in January 2020, when the Sánchez government reorganized government ministries, and a Secretariat for Democratic Memory (Secretaría de Estado de Memoria Democrática, or MD) was established within the Presidential Ministry, which itself was renamed 35  There has been some pushback against the Madrid initiative in the courts; see Carmen Pérez-Lanzac, “Otra sentencia tumba el cambio de nombre de seis calles de Madrid y de dos nuevas,” El País, August 1, 2018, elpais.com/ccaa/2018/08/01/madrid/1533110046_ 576496.html, accessed August 22, 2021. 36  General Sanjurjo’s remains were exhumed from the municipal Monument to the Fallen in Pamplona and moved on November 16, 2016, but his family appealed, leading to a later ruling that his remains be returned. See “Un juez de Pamplona revoca la exhumación de Sanjurjo y ordena restituir sus restos,” Público.es, July 2, 2018, www.publico.es/politica/ juez-pamplona-revoca-exhumacion-sanjurjo-ordena-restituir-restos.html, accessed August 22, 2021. 37  “Fernando Martínez López será el director general de Memoria Histórica,” Público.es, June 29, 2018, www.publico.es/politica/memoria-historica-fernando-martinez-lopezdirector-general.html, accessed August 22, 2021.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

67

“Ministry of the Presidency, Relations with Congress, and Democratic Memory.”38 Now, the MH agenda was symbolically and operationally at the heart of the executive, and given the direct attention of Sánchez’s First Vice President, Dr. Carmen Calvo, a former law school professor herself, who now headed up Presidencia. Under the new governmental structure, the Director General for Historical Memory, Fernando Martínez López, moved from Justice to the expanded Presidencia to become Secretary of State for Democratic Memory, where he could have more leverage to coordinate activities across ministries and direct new initiatives.39 The primary aim of MD, from the start, was to implement and enforce the 2007 LMH, in particular its provisions for attention to victims which had been left unfunded under the previous PP government. But it was also significant that, in the naming of the new agency, the designation “historical memory” was replaced by “democratic memory,” to underscore the connection within universalist legal culture between public memory and democratic citizenship.40 In its introductory page, MD describes Spain’s trajectory away from Civil War and dictatorship toward the Constitution as a triumph of the rule of law, arguing that the work of constructing a more just and prosperous society requires delinking impunity and democracy, breaking with the hegemonic heroic Transition narrative. Instead, for all of Spain’s citizens to be equal before the law, there must by policies that “repair and restore” the rights and dignity of the victims of dictatorship, not to reopen wounds but to “avoid divisions” and “encourage bonds of social 38  Presidencia was reorganized via Real Decreto 2/2020 (12 January) to add Democratic Memory as one of its three main branches (Secretaría de Estado). The specific agency to address MH issues (Dirección General de Memoria Democrática) was established via Real Decreto 139/2020 (28 January). See “Verdad, Justicia y Reparación: Introducción a la Memoria Democrática,” Secretaría de Estado de Memoria Democrática, Gobierno de España, Ministerio de la Presidencia, Relaciones con las Cortes y de Memoria Democrática, at www.mpr.gob.es/memoriademocratica/Paginas/index.aspx, accessed August 22, 2021. 39  Gobierno de España, Subdirección General de Recursos Humanos, “Organigrama del Ministerio de la Presidencia, Relaciones con las Cortes y Memoria Democrática,” (February 9, 2021) 3; www.mpr.gob.es/mpr/estructura/Documents/ORGANIGRAMA%20 MINISTERIO%2009_02_2021.pdf, accessed August 22, 2021. 40  This formulation should be compared with that of the first ‘memory ministry’ in Spain, the Memorial Democràtic in Cataluña, whose narrative of the “demos” is at once liberal (anti-fascist, anti- impunity) and nationalist/nostalgic (but in reference to a once-and-future Catalán nation independent of Spain). See memoria.gencat.cat/ca/inici, accessed August 22, 2021.

68 

S. R. GOLOB

cohesion and solidarity across generations of Spaniards based upon the higher values of our legal order, the principles of our Constitution, and our fundamental rights and liberties.” If the first vector of the latest rebirth of the Socialist MH agenda has focused on implementing the existing LMH, the second vector has focused on correcting that law’s deficits and drafting a new “Law of Democratic Memory.” Approved by the Council of Ministers in September 2020 and tabled in Congress for debate in November, the Draft Law of Democratic Memory (known by its initials in Spanish APL-MD)41 drew upon a previous attempt by the PSOE at reform, starting in 2017,42 and further benefited from the input of the MD’s expanded professional staff brought together by Martínez López, many of them with extensive experience either participating in or studying the MH movement over the past two decades.43 The resulting document, like its antecedent, is likely to please and frustrate in equal measures. In their “technical report” outlining the APL-­ MD’s strengths and weaknesses, Amnistía Internacional España praised new advances beyond the limitations of the 2007 LMH, in particular the acceptance of a direct role of the state in mass grave exhumation, including the creation of a national DNA database to aid in identification of remains; the vacating of sentences from military tribunals; the creation of a special prosecutor’s office to investigate alleged crimes from the Franco era (1936–1975); and the sociopedagogical work of resignifying the Valley of the Fallen and of updating school curricula and professional development for teachers.44 At the same time, the Amnistía report noted the 41  Ministerio de la Presidencia, Relaciones con las Cortes, y Memoria Democrática, “Anteproyecto de Ley de Memoria Democrática,” November 11, 2020, www.mpr.gob.es/ servicios/participacion/Documents/APL%20Memoria%20Democr%C3%A1tica.pdf, accessed August 22, 2021. 42  Partido Socialista Obrero Español PROPOSICIÓN DE LEY para la reforma de la Ley 52/2007, de 26 de diciembre, por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la guerra civil y la dictadura. Tabled in the Chamber of Deputies December 14, 2017, www.psoe.es/mediacontent/2018/01/171214_PPL_memoria-historica.pdf, accessed August 22, 2021. 43  Confidential interview, Manzanares el Real (Spain), July 18, 2020. 44  Amnistía Internacional, España, “Aportaciones de Amnistía Internacional al Anteproyecto de Ley de Memoria Democrática, 2 de diciembre de 2020,” Centro de Documentación: www.doc.es.amnesty.org/ms-opac/doc?q=*%3A*&start=0&rows=1&sort=fecha%20desc& fq=norm&fv=*&fo=and&fq=mssearch_fld13&fv=EUR41900020&fo=and&fq=mssearch_ mlt98&fv=gseg01&fo=and, accessed August 22, 2021.

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

69

persistence of many limitations and deficits, including the failure to establish a truth commission, and the slippery slope of limiting freedom of speech and association by criminalizing a vaguely phrased set of speech acts and other public acts aimed at “insulting, degrading or humiliating victims of Franco or their families, or personal or collective exaltation of the military coup (of 1936), the Civil War or the Dictatorship.”45 The most troubling and—for our purposes—significant is the lack of attention to the Amnesty Law of 1977 as a key obstacle to investigation.46 Taking a closer look at the Exposition of Motives,47 the introductory section of the draft law that lays out the jurisprudential and philosophical foundations on which the law is based, we see a full expression of the universalist legal culture and a head-on confrontation with the legal- sovereigntist defense of the hegemonic heroic narrative of the Transition. Three key ‘moments’ stand out. In the very first section, the law links the work of democratic memory to the long history of atrocity in Europe, and thus places the LMD into the context of other memory laws that have sought to construct shared identities and national projects in the aftermath of authoritarianism in Spain’s fellow European countries. Despite the fact that Spain did not experience the Holocaust as other European countries did, here the law connects Spain to this experience as a universalizing and democratizing process. It invokes “Nunca Más,” a phrase associated with both the postwar moral consciousness of the Nazi genocide and the rallying cry of Latin Americans exerting their “right to know” when faced with state terrorism and forced disappearance under dictatorships in the 1960s-1980s. It then confronts the nostalgics by praising the Transition but then going further back to the Republic to praise “the sacrifices of the men and women of Spain in the fight for liberties and democracy,” a democratic lineage that does not begin in the late 1970s. And rather than posing an existential threat to a democracy that is fragile and needs protecting, “knowledge about our recent past contributes towards setting our common life (convivencia) on firmer and more stable bases, protecting us from repeating the errors of the past.” It concludes, “the consolidation of our Constitutional order makes it possible for us to face the need for truth and justice with regard to our past…Forgetting (olvido; which also denotes a dash of denial or erasure) is not an option for a [quality] democracy.”  Ibid., 9.  Ibid. 47  Anteproyecto de Ley de Memoria Democrática, November 11, 2020, 1. 45 46

70 

S. R. GOLOB

The second key moment comes in the third section, when the text calls out the Franco regime for imposing its own “totalitarian memory regime” that “excluded, criminalized, stigmatized, and made radically invisible the defeated victims after the victory of the military coup.”48 Rejecting equidistancia, this narrative claims that there were memory policies that recognized victims—but only on one side, that of the victors. This section then becomes a genealogy of the LMH of 2007, showing how the Transition—based upon the principle of “consensus” and the broad shelter of the Constitution—made the first steps, and that other small steps were achieved in a march toward a more robust democracy that embraced a more inclusive memory regime. The section highlights how the LMH 2007 sought to bring Spain into compliance with its international obligations as well as the obligation to “[pay the] historical debt that weighed on the legal order of our country [in the form of] the reparation of the victims of the Civil War and the subsequent dictatorship.”49 Thus the universalist legal culture sees no threat from international law; rather, it reinforces the legal and political momentum toward constructing a democratic culture centered on democratic memory. Finally, toward the end of the third section, the Disposition becomes a manifesto of sorts that articulates three key universalist ideas about what the law can do to link past, present and future—a central element of legal culture: “With this law, we aim to pay down a debt that Spanish democracy has with its past and promote a shared discourse based on the defense of peace, pluralism, and the condemnation of all kinds of political totalitarianism that would put at risk the effective enjoyment of the rights and liberties inherent to human dignity. Moreover, this [law] is also a commitment to the future, defending democracy and fundamental rights as a common paradigm and indelible horizon of our public sphere, our common life (convivencia), and our civic consciousness.”50 First, the law can link Spanish citizens today to their past, incentivizing certain activities and actions in the present that will address the justice deficit and their own selective memories in ways that will improve democratic life going forward. Second, the law can create a shared discourse, a new vocabulary that also leads to a new way of thinking about what Spanish society values and what ‘democracy’ means. Third, the law may  Ibid., 3.  Ibid., 6. 50  Ibid., 8–9. 48 49

3  (DE) CRIMINALIZING THE PAST: SPAIN’S LEGAL RESPONSE TO HISTORY… 

71

look to the past, but it also links Spaniards to the future, in that it aims to fight complacency, denial, and exceptionalism by linking the rights and the responsibilities of citizenship via a commitment to non-repetition and to defending democracy as a common project. The ultimate aim, then, is to ‘normalize’ Spain, bringing its memory politics and its ‘democratic memory’ more in line with international human rights norms. Rather than take pride in being an exception, the universalist narrative goes, Spain should aspire to reject exceptionalism.

By Way of Conclusion: Spain and Europe’s Past and the Future of Democracy This chapter has analyzed Spain’s ‘memory wars’ as an outgrowth of its exceptionalist trajectory, at once an apparent outlier and yet firmly in line with current debates in European politics regarding how history should be understood and interpreted as a guide for present politics and future visions of democracy. I have argued that the law—through a process of legal remembering—has been the vector of change and liberation for those whose memories have exiled from the national narrative. Yet at the same time, the law also has served to enforce that same exile, as legal remembering can be selective or coerced, and can serve nostalgic populists as easily as it can serve progressive democrats. The analysis started by recognizing the role played by the 1977 Amnesty Law in constructing a hegemonic legal narrative of Spain’s transition to democracy. Functioning as a memory law, the amnesty ‘exiled’ Republican memory as it enforced the culture of equidistancia, which in practice did not create equity between the two sides of the Civil War. Thus Spanish memory wars pit those who want to excavate and air out the hidden past against those who view these acts as a threat to the nation—but these latter groups are more often than not nostalgic for the Transition, not for dictatorship. Inspired by the memoria historica (MH) movement in civil society and advanced by progressive PSOE governments, the two more recent memory laws profiled in this chapter attempt to weaken the armor of this hegemonic memory regime, but they are limited in what they can accomplish, still circumscribed by the borders of acceptable remembrance. These borders, in turn, are defended to protect Spain’s legal exceptionalism—the self-concept of a model democratic transition accomplished without major bloodshed, but premised on the idea that impunity was, and remains, necessary for the maintenance of democracy. Rather, as the

72 

S. R. GOLOB

MH movement has articulated through its embrace of international law and universalist legal culture, impunity undermines democracy and eviscerates the rule of law. Spain cannot have it both ways—its democratic government cannot claim to be a model European democracy embracing Europe’s universalist view of states’ human rights obligations and then also claim an exception from those same obligations in the name of democracy. And with the rise of Vox, Spain does not look quite as exceptional any more when it comes to the development of xenophobic, nativist parties. This wild card in the memory wars is a reminder that, in spite of the ongoing and concerted attempt to close the proverbial borders and protect the nation from lawlessness and chaos, authoritarian rule can arise through law and through the ballot box. Parties that peddle a nostalgia for a more orderly time in the past—be they moments of transition or decades of dictatorship—have a tendency to seek hegemony, a selective legal memory that includes some in the national narrative of safety and acceptance, and marginalize and stigmatize those who are outside those bounds. The past, thus, is at the center of Europe’s democratic future, and its political shockwaves may yet reach Spain, no longer removed, apart, and legally inoculated after all.

PART II

WMDs and Memory Laws: Revisiting the Holocaust versus Soviet Occupation

CHAPTER 4

Polish Memory Laws and the Distortion of the History of the Holocaust Jan Grabowski

I would like to take this opportunity to dedicate this text to my colleagues, Polish historians and history teachers who have recently been fired from their jobs—or who currently face termination—for opposing the ongoing falsification of Polish history, and more specifically, for opposing the falsification of history of the Holocaust. I would also like to mention here about my fellow researchers who are now being vilified and slandered and whose reputations and careers are being destroyed by the Polish state-­ owned and state-controlled mass media in an atmosphere of virulent nationalism and growing anti-Semitism. During the 1990s a new paradigm emerged, one where the Holocaust became a shared responsibility, a part of the tragic European—and world— legacy. It was during these years that France, Germany, and Israel passed a series of memory laws which directly targeted Holocaust denial. Several other European nations soon followed suit. Laws which regulate collective representations of the past were not a new phenomenon, but laws that criminalize statements about the past are definitely a novelty. This phenomenon,

J. Grabowski (*) Department of History, University of Ottawa, Ottawa, ON, Canada © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_4

75

76 

J. GRABOWSKI

called by Jürgen Habermas Verrechtlichung, or “juridification” of memory had much to do with the Shoah becoming the universal symbol of evil. In Eastern Europe, at the same time, the focus on World War II and the associated national traumas was much more evident than elsewhere. The local memory laws had, however, a very different goal and they were designed to stress and underline the alleged massive and popular opposition to communism. The memory of the Holocaust was at the same time, largely absent. This, in turn was related to the “unlearned” lessons of the Holocaust—the most important one being the scale of the local populations’ involvement in the extermination of local Jews. This went hand-in hand with communistera insistence upon the Holocaust being only a part of the general suffering of the conquered populations under the Nazi yoke. In Poland, the official party line (gladly swallowed by the eager public) was that the victims of the Nazis were all “Polish citizens”—as if it were citizenship, and not race, which determined their fate. In the Soviet Union, the recognition of Jewish suffering had to disappear in order to make room for the “Soviet people” to become both the hero and the victim of the “Great Patriotic War.” In the 1990s, with the looming accession of several countries of Eastern Europe to the EU the historical narrative had to undergo an important correction. This included, above all, the recognition of the extermination of European Jewry as an act of ultimate evil. Not that the process was easy, or successful. Quite to the contrary—today (perhaps even more than before) we witness in the East the rejection of the notion of the shared responsibility for the Shoah. As Randolph L. Braham justly stresses, “the collapse of communism brought about the resurgence of conservative nationalist-populist fervor, reminiscent in its nuances of the 1930s.”1 It was this nationalist fervor which helped to fuel the spread of “deflective negationism” and Holocaust relativization—both phenomena known for shifting the blame for the Holocaust away from one’s own national/ethnic group, or diminishing its uniqueness through comparisons with the Soviet terror. This is the reason for the evident rift between politics of memory in Western and in Eastern Europe. It is also quite likely that this interpretative key offers at least some answers to the political tensions which currently test the endurance of the European unifying project. In Eastern Europe, criminalizing of negationism goes hand in hand with the defense of local national 1  Randolph L. Braham, “Antisemitism and the Holocaust in the Politics of East Central Europe,” Antisemitism and the Treatment of the Holocaust in Postcommunist Eastern Europe (New York: Rosenthal Institute for Holocaust Studies, CUNY/ Columbia UP, 1994).

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

77

memory projects which have little, if anything, to do with the Shoah itself. In the East, the memory laws have been used, and are being used increasingly often, as weapons against historical narratives “unlicensed” by the state or running contrary to the state “history policy.” In January 2018, the nationalist Polish government introduced the “Holocaust Law” which called for prison terms of up to three years for those found guilty of “slandering the good name of the Polish nation” and implying that Polish society and its institutions were in any way complicit in the Holocaust. The law has been speedily approved by the Parliament and signed into law by the Polish president. Three months later, bowing under tremendous international pressure, and in the face of world-wide indignation, the Polish nationalists rescinded the criminalizing provisions of the law, hoping that this would settle the issue. The issue is, of course, far from being settled. But in order to understand the causes of illness, one needs to step back and place these attempts at “legislating” the past in a larger historical perspective.

Holocaust Envy In May 1945, when the Third Reich collapsed and people around the world celebrated the end of World War II, Poland was a scene of utter and complete devastation. The human losses were simply staggering. Entire cities lay in ruins, and Warsaw, the capital, had been literally turned into a rubble-covered graveyard: more than 460,000 Jews of Warsaw had been murdered here between 1940 and 1943, close to 150,000 Poles (civilians, for the most part) died during the August-September 1944 uprising, the remaining 700,000 inhabitants of the city had been expelled by the Germans and forced to leave the dying city. By mid-October 1944 Warsaw, until recently a city of more than a million, stood empty—with the exception a handful of horrified Jews who—like the pianist Władysław Spielman rendered famous by director Roman Polanski—decided to continue hiding, in the sewers and cellars of the deserted city. And around and above them special German Brandkommandos (Burning units)—set fire and blew up the remaining structures, executing Hitler’s explicit order to “raze Warsaw to the ground.” When the Soviet winter offensive finally liberated Warsaw in January 1945, the city’s landscape looked like the surface of the moon—void of human presence, with 85% of its buildings either partially or totally destroyed. Although other Polish cities fared much better, wounds

78 

J. GRABOWSKI

inflicted by the five and a half years of brutal occupation were showing everywhere. There was hardly a Polish family which did not suffer a personal loss of close ones—uncounted thousands were executed in public executions, others were sent to the concentration camps never to be heard from again, or otherwise fell prey to one of the most brutal occupation regimes in European history. Nevertheless, there were various levels of destruction and various strata of desolation. Two panoramic pictures of Warsaw, taken in 1945, tell a part of this story. In the forefront of the first photograph is the sea of rubble—there are houses that have been leveled to the ground, where the main streets have simply disappeared. This is the former Warsaw ghetto. In the other photo are the ruins of the so-called Aryan Warsaw—the “Polish” side of the city. The damage is terrible—but there is hope. Some of the structures are still standing, and reconstruction is not out of the question. Despite great human losses, the great majority survived the war. The photographs can be seen as a graphic metaphor of the physical condition of Polish—and of Jewish—society.

“The ruins of the Warsaw ghetto, 1945,” archival collections of Lo Hamei-ha Getaot, or the Ghetto Fighters’ House Archive, catalogue no. 749, 1945, infocenters.co.il/gfh/multimedia/GFH/0000029707/0000029707_1_web.jpg. Accessed September 4, 2021.

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

79

“The ruins of Warsaw, 1945,” archival collections of Lo Hamei-ha Getaot, or the Ghetto Fighters’ House Archive, catalogue no. 22208, 1945, infocenters. co.il/gfh/multimedia/GFH/0000021366/0000021366_1_web.jpg. Accessed September 4, 2021.

As soon as the war was over, the time of healing had to begin. The Poles, like many other peoples of devastated Eastern Europe, took stock of their losses and tried to move on with their lives. For many this act of healing, of coming to terms with the recent horrors, was difficult. For others, however, such an effort was simply impossible. Indeed, it is hard to expect a mortally wounded people to heal. And while the Polish nation had suffered greatly, the nation of Polish Jews had been—without hyperbole—destroyed. Lucy Dawidowicz, one of the foremost scholars of the Holocaust, gave her 1975 book a title: War Against the Jews.2 In the case of Polish Jews, this war had been decisively won by Adolf Hitler: from among the 3.2 million Polish Jews who—at some point—found themselves under the German occupation, only 30,000- 40,000, or 1.5% survived. The remaining 98.5 % fell victim to the extreme “efficiency” of

2

 Lucy S. Dawidowicz, War Against the Jews, 1933-45, Bantam Books, 1975.

80 

J. GRABOWSKI

mass-murder perpetrated by the Germans and by their local enablers and facilitators. These last two terms: “local enablers and facilitators,” in the Polish context of the Holocaust, concern not only the deadly Polish “Blue” police—one of the most efficient agents in the ongoing Jew hunts, but also voluntary firefighters and one’s own neighbors, the so-called bystanders who, unfortunately, very often chose to do much more than to stand by, thus making their own contribution to the implementation of the “final solution of the Jewish Question”—as the extermination was euphemistically named by the Germans. Because, in the eyes of many Jews who survived occupation in Poland, the dangers of daily exposure were, in a large part, linked to the locals. Neighbors knew much better than the Germans who was a Jew and who was not and it was these neighbors who had the necessary expertise to locate the fugitives. Denunciation (or killing) usually followed detection. The experience of survival and death under occupation was therefore very different for both nations. And the balance of past wrongs weighted heavily—with many unforeseen and disturbing consequences. For the Poles, emerging from their own war-time trauma, accusations leveled against them by the few Jewish survivors were greeted with anger, deemed unacceptable and forcefully, often violently, rejected. So it was in 1945 and so it is now. It was in such a moral landscape that—in early fall of 1945—the Office of War Reparations, a branch of the new Polish government, came up with an estimate of Polish “biological losses.” According to this count, some 4.8 million Polish citizens (including 3 million Jews) lost their lives during the war.3 Such an estimate, as the statisticians in the Office of War Reparations soon learned, was—from the official standpoint—quite unacceptable. “Should we recognize the fact that 3 million Jews were murdered,” said Jakub Berman, the chief of the feared Polish communist secret police, “then we need to sharply increase the numbers of Polish dead.” In a policy memo entitled “Establish the Number of Dead at 6 million,” Berman requested that the Jewish and the Polish losses be declared equal: 3 million dead each. Berman himself was a Jew, but—first, second and foremost—he was a communist. He read the public sentiments well enough to know that putting Jewish losses at nearly twice the number of Polish ones would create major problems for the communists who already 3  Marcin Zaremba, Wielka trwoga: Polska 1944–1947 (Kraków : Wydawnictwo Znak : Instytut Studiów Politycznych Polskiej Akademii Nauk, 2012) 95.

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

81

were perceived by large segments of the Polish society not only as foreign agents, “Russian and Soviet proxies,” but also as “Jewish lackeys”—to use the expression employed often then, and often employed now. The only way to make the Jewish losses palatable to the traumatized and anti-­ Semitic Poles, thought Berman, was to elevate the number of Polish dead so it would at least match the “Jewish” level. And so it was decreed in 1945, and so it is taught in schools still today, 73 years after Berman sent out his memo. The desire to elevate one’s own suffering to the level of the Holocaust has been given a name: today scholars refer to this curious phenomenon as the “Holocaust envy.” And this envy is by no means limited to Poland.

Part 2: The “Institutes of State-Sanctioned History” Few things are more pernicious—from a historian’s perspective—then state-legislated history. And memory battles in Eastern Europe, whether we talk about Ukraine or Poland—or Lithuania, for that matter—are not being fought in secluded lecture rooms, on the pages of academic journals or in learned monographs. They are being fought in the open, in mass and social media, in daily press, with the active participation of general audience- and everybody seems to have a very good idea who is right and who is wrong--especially who is wrong. In order to make the national ethos safe from marauding independent historians and meddling foreigners, national memory has become an object of intense—and very partisan— interest of the state apparatus. In order to ensure the “correct” interpretation of its own national past and in order to protect the so-called good name and honor of the nation, Polish parliament created, in 1999, the Instytut Pamieci Narodowej—Institute of National Remembrance. In 2006 its Ukrainian equivalent, the Ukrainian Institute of National Remembrance (Українськij інститут національної пам’яті) was likewise created by an Act of Parliament. The Slovak National Memory Institute (Ústav pamäti národa) was created in 2002 and soon after Lithuania saw the creation of its own, slightly more focused Genocide and Resistance Research Institute. The wartime experiences of Poles, Ukrainians, Slovaks, and Lithuanians were very different. Poland was the first victim of German military aggression, and between 1939 and 1945, Polish society suffered greatly under the cruel regime of German terror. There was no serious attempt at political or military collaboration with the occupier. Ukrainians, depending on

82 

J. GRABOWSKI

chronology and geography, collaborated and fought with the Germans; Lithuanians threw their lot in with the Germans en masse; and the Slovak quasi-independent state was an official ally of the Third Reich. Nevertheless, as far as the extermination of the Jews was concerned, everyone was involved, although to a different extent and in different ways. The Slovak government shipped off its Jewish citizens to their deaths in the extermination camps. Ukrainian and Lithuanian volunteers and other military formations took part in brutal extermination campaigns both on their own territories, or they were “delegated” by the Germans into other areas. In Poland, at the same time, the Polish “Blue” police, the voluntary firefighters and uncounted thousands of “bystanders” took part in the brutal and bloody liquidations of the ghettos and in the later Jew hunts which proved to be particularly deadly for Jewish refugees. Despite the differences in their war-time fate and experience, all state-­ approved and enforced historical narratives share a common problem—a Jewish problem. At the core of their “Jewish problem” was (and still is) the wide-spread anti-Semitism which created the toxic soil upon which killings of Jews became not only possible but even socially acceptable. Consequently, being a patriot and a member of the patriotic resistance did not preclude one from being a hardened killer of Jews. And in each case, historians trying to study these painful issues are confronted with defensive mechanisms, both on institutional and popular levels. In Poland, the extermination of the Jews occupies a very special place in collective memory. It can be compared to a thorn, lodged deeply in the collective consciousness and subconsciousness. At first sight, nothing can be seen, but when probed, painful reactions testify to the fact that discomfort is quite real. The Shoah is, at the same time, the only universal aspect of Polish history, one which has a meaning and importance on the international scene, which resonates in the hearts and minds of many. Most of all—and annoyingly—it is the only aspect of Polish history over which the Polish authorities have little or no control. Therefore, the frantic energy deployed to counter real or perceived threats to the national ethos and to the founding national myths, although deplorable and misguided, is also—in a way—understandable, as is the relentless pressure of Polish officials to keep the “historical tiller” firmly in their hands. In Poland, practically every discussion of the Holocaust triggers a quasi-­ automatic defensive reaction, which I will refer to as the “Righteous defense.” It is practically impossible nowadays to find any official declaration concerning the Shoah, which would not make a specific reference to

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

83

the number of Poles decorated by the state of Israel as Righteous people who helped to rescue Jews during the war. The fact that the Righteous were but a tiny minority of the Polish society and that they were deadly afraid of their own neighbors seems to be lost on the defenders of “national innocence.” At this stage, one could ask, what is wrong with celebrating the Righteous? Unfortunately, it is not the Righteous who are celebrated, but the myth of “national innocence” which their sacrifice and bravery are supposed to shield. The relentless push for the recognition of the alleged universality of Polish sacrifice is a cynical attempt to use the actions of the few courageous and just people to excuse and to shield the actions and non-actions of the vast majority of Polish wartime society. A society which, by and large, steeped in anti-Semitic clichés and influenced by anti-Semitic clergy, found little sympathy for the dying Jews and for the few extraordinary people who dared to help them. Once the history of the Holocaust has been sufficiently infused with the stories of noble gentiles and, at least partially, de-Judaized, the stage is ready for the transformation of the Righteous into a norm, into a standard, into the expected, default behavior of the Polish masses under the occupation.

From Holocaust Envy to Holocaust Distortion to Holocaust Denial Holocaust Envy and the “Righteous defense” go hand in hand with the appropriation of symbols and the conquest of the very few symbolic spaces on Polish territory which—until recently—belonged to the victims of the Holocaust. One of the recent examples of the “Righteous defense” appropriating the space devoted previously to victims of the Shoah can be observed in the immediate vicinity of the impressive Museum of the History of Polish Jews. The building of the museum, opened in 2014, has been erected at the center of what used to be the Warsaw Ghetto—the place of the suffering and death of 460,000 Polish Jews. And now the museum is being surrounded by a sui generis firewall of visible representations of Polish virtue. In front of the museum, visitors encounter a monument in honor of Righteous Pole Jan Karski, a courageous courier of the Polish underground who delivered to the West a first-hand account of the Holocaust. Next to that monument, along the southern wall of the museum, an alley has been dedicated to Righteous Pole Irena Sendler, a courageous Polish woman who “saved 2500 Jewish children”—as some

84 

J. GRABOWSKI

would like to believe. On the northern side of the museum, a large monument is being erected: the monument of “Jews Grateful to Righteous Poles who saved them.” And ten minutes’ walk from the museum a park was opened in 2014, called “Park of the Righteous.” The commemorative plaques, monuments, signs, and sculptures can be called “memory patches” intended to cover up the wounds—not to heal these wartime wounds, but to cover them up. It is not enough to celebrate one’s own virtue; in order to allow the appropriation of space and meaning, the celebration has to be performed in the right location and the memory patches have to be applied where the voices of Jewish victims still tend to be heard.

Auschwitz—a lieu de memoire—a Polish lieu de memoire

The symbolic conquest of the Warsaw Ghetto by the triumphant Polish narrative pales when compared with the ongoing commemorative conquest of Auschwitz. For most of us, Auschwitz (the place of death of more than one million Jews) has become synonymous with the Holocaust. In Poland, however, decades of patriotic indoctrination and triumphant historical discourse have brought about a very different perception. In a public opinion poll taken in Poland, in 2005, 51% of respondents declared that the majority of the victims of Auschwitz were Jews, while 39% thought that there were more Polish victims or that the proportions were equal. A similar poll, taken five years later, in 2010, revealed that the percentage of respondents who thought that the Jews formed the majority of Auschwitz’s victims dropped to 47%, while 39% declared that the camp was, above all, the place of the martyrdom of the Polish nation. The most recent poll, conducted in January 2015, demonstrated the accelerated pace of the “revisionist” perception of the past: currently only 33% of Polish respondents associate Auschwitz primarily with Jewish suffering, while a stunning 47% think that Auschwitz was, most of all, the place of Polish martyrdom. Another poll observed the same revisionist trend: while in 1992 46% of respondents were still convinced that the Jews had suffered more than the Poles during the Holocaust and only 38% thought that Polish suffering was equal or greater to that of the Jews, 20 years later, in 2012, 61% of respondents were already convinced that Polish suffering at the time of the Shoah was at least equal, or greater than, that of the Jews.

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

85

However surprising it may sound, Auschwitz—in the course of the last two decades—began its transformation. For the “internal,” Polish use, it became a qualitatively different lieu de memoire. As far as the majority of Poles are concerned, it no longer is a symbol of the Jewish tragedy. It is a symbol of Polish suffering and perseverance. It is a Polish lieu de memoire. To quote Orwell once again, “Who controls the past controls the future […] who controls the present controls the past.”4 It is important to note that these numbers, dates, and trends predate—by several years—the more recent arrival of populists and nationalists to power. They are, therefore indicative of a much deeper-rooted problem, one which transcends vagrancies of political life. They are a constant process, one which has been underway for several decades. The Polish town of Kielce and the house on Planty 7 Street stand in history as places of infamy, and as a symbol of vicious, murderous prejudice—the last example of the “ritual murder” legend that led to a very real and not ritual murder. It is here that, on July 4, 1946, a Polish mob, enraged by tales of blood libel, of Christian children being drained by Jews of blood, murdered 40 survivors of the Holocaust. It is the most recent and most bloody pogrom in European history. Last year, however, the scene of the murder received—as was the case of the former Warsaw ghetto—its own “memory patch.” The square in front of the notorious Planty 7 house (from which the Jewish victims have been dragged out and later murdered) now bears the name of Irena Sendler—the brave Polish woman who helped save hundreds of Jewish children from the Warsaw ghetto. Once again, Kielce is a large city, Sendler has no relation to Kielce (her activity was limited to Warsaw)—but the “memory patch” has to be strategically located. Rather than being located in a place where it would make historical sense, or where it would simply be in good taste, it has to be applied directly over the festering wound. Another Holocaust-related “memory patch” has been applied in the former site of the notorious Kraków Płaszów concentration camp. As mentioned earlier, the so-called Polish Blue Police was one of the most deadly forces engaged in hunting down and murdering Jews. A 20,000 strong formation of so-called Blue Police killed Jews not only at the behest of Germans and not only as a result of following their orders. Rather, they demonstrated a surprising degree of agency all their own. In thousands of documented cases, they robbed and murdered the Jews without any 4

 George Orwell, 1984 (New York: Signet Classics, 1961) 34.

86 

J. GRABOWSKI

German involvement. Today, in Poland, attempts are being made to portray the “Blue” police as true Polish patriots, deeply engaged in the resistance, the unsung heroes of the struggle against the Hun. In very many cases, this depiction is indeed true. Unfortunately, as we know now, patriotic engagement can go hand-in-hand with involvement in the German policies of extermination. Many patriotic policemen were, at the same time, ruthless killers of Jews. Not that this particular insight was of any value to the creators of the monument dedicated to the memory of the “Blue” policemen from Kraków, who were then executed in late 1943 by the Germans. The monument, erected in 2012, could have been placed in several different locations: in front of the Kraków police headquarters, for instance, or in the prestigious Krakow Rakowiec cemetery, or in front of one of Krakow’s 135 churches. Instead, without being excessively subtle, the monument now sits right in the middle of the site of the former notorious Płaszów concentration camp, known to many from Spielberg’s “Schindler’s List” as the place of work of Amon Goth, one of the most horrifying Nazi killers of Jews. The Płaszów camp became the place of death of more than 15,000 Jews of Kraków, many of whom had been arrested and delivered to Płaszów, and then executed by the officers of the Polish “Blue” police. The conquest of the Warsaw Ghetto, the memorial triumph at Auschwitz, the victory in Płaszów concentration camp and the blitz in Kielce, all of these developments are a warning sign of things to come. With the passing of the last survivors, the Holocaust, like so many other disturbing events in human history, will become one of the many tragedies which can be studied sine ira et studio. And the empty space which the survivors leave behind will soon be filled with other stories, with new, optimistic voices, full of new meanings. These voices will build a new, empowering narrative which will help people to feel proud of their history. The Polish Institute of National Remembrance, by far the largest of the above-mentioned “institutions of memory control” and one entrusted with the most sweeping mandate, with time became instrumental in reinforcing cornerstones of patriotic creed—which is founded on a nationalistic and ethnic (as opposed to citizen-based) view of history. Its most prominent messages include: the glorification of the Warsaw Uprising of 1944; the concept of massive resistance to communist rule; the equivalence of Nazi and Soviet crimes; the defense of the “good name of the Polish nation”; competing victimology during World War II, with particular stress being placed on Aktion AB and the Katyń massacre. The two

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

87

latter examples usher Polish historical policy into the area of Holocaust equivalence: equating Stalinist crimes and German policies of terror with the Holocaust. According to one historian, “one of the most sophisticated types of postwar Holocaust equivalence is to present the victimization of people by communism in the same way as that of the Holocaust.”5 This kind of approach introduces the parallel (and equivalent) concepts of “Red and Black Holocausts,” concepts which play well to domestic and foreign audiences.6 In short—everybody suffered—the Poles, Balts, Ukrainians, and Jews. The fact that the policies of total, national extermination targeted only the Jews, that many Balts, Ukrainians, Romanians, French, Dutch, Belgians, and Poles also took part in the implementation of the “final solution” and, finally, the fact that the war waged against the Jews has been largely won—is altogether forgotten in the heat of the “equivalence” debate. The most important myth however, one which is relentlessly sold to the Polish and to the foreign audience is the alleged universality of help and rescue offered to the dying Jews by their Polish co-citizens at the time of the Shoah. We will return to this issue in a moment. Public polemics, broadly understood historical dialogue, and even not-­ so-­subtle censorship of the school curricula, are not always sufficient to guarantee adequate defense of the myth of own national innocence. That’s where the “history laws” become expedient force to ensure that the state-­ approved narrative remains unchallenged.

Penalizing Independent Research The pioneering work in terms of introducing prison terms for thorough historical research has been undertaken in Russia. There, in 2009, President Dmitry Medvedev established “a presidential committee charged with putting an end to attempts at falsifying history contrary to Russia’s interests.” Falsifying history in Russia’s interests, the wording implies, would be fine with President Medvedev. Indeed, Article 354.1, voted by the Russian Duma (Parliament) in 2014, modified the Penal Code such 5  Manfred Gerstenfeld, The Abuse of Holocaust Memory: Distortions and Responses (Jerusalem: Center for Public Affairs, 2009) 93. 6  Elżbieta Janicka, “Zamiast negacjonizmu: Topografia symboliczna terenu dawnego getta warszawskiego a narracje o Zagładzie,” Zagłada Z ̇ ydów. Studia i materiały 10 (2014): 253-254.

88 

J. GRABOWSKI

that it outlawed “any misrepresentation of the decisions of the Nuremberg Tribunal with the intention of rehabilitating Nazism, as well as any attempt to designate as criminal the actions of the countries of the anti-Hitler alliance, including the Soviet Union.” One can forget the negation of Nuremberg Trials—the carrying phrase here is the penal sanction for those who “designate as criminal actions of the Soviet Union,” that is, those, for instance, who would like to delve into the issue of Soviet complicity with the Nazis during the 1939-1941 period, or other issues which are not in line with the official version of Russia’s history. Ukraine soon followed the Russian example. In 2015, the lawmakers in Kiev introduced a number of laws and regulations which sought to help scholars and the members of the public to understand what history was all about. Law No. 2538-1, “On the legal status and honoring of fighters for Ukraine’s independence in the 20th century,” states that “the public denial of…the just cause of the fighters for Ukrainian independence in the 20th century insults the dignity of the Ukrainian people and is illegal.” The fighters for Ukrainian independence explicitly include the World War II nationalists of the OUN [Organization of Ukrainian Nationalists] and UPA [Ukrainian Insurgent Army], whose involvement in the mass murder of Jews has been richly documented and is no longer disputed by any historian worth his or her salt.7 The Russian and the Ukrainian examples did not pass unnoticed in Poland. The triumphant nationalist discourse, which has already been for a long time a dominant feature of Polish “history policy,” became much more pronounced and aggressive after the 2015 elections which brought to power the nationalist and populist Law and Justice (PiS) party. Firmly in control of the parliament and of the presidency, PiS turned energetically to national myth-building in order to reaffirm and to consolidate its electorate. The declarations of leading PiS politicians and their appointees left no doubt where the new regime was headed in matters of Holocaust memory and commemoration. The previous stress on the Righteous Poles’ commemoration increased even further, turning mild obsession into deep paranoia. And the Righteous are used instrumentally, in order to deflect any and all critical probes of Polish war-time attitudes to Jews and the anti-Semitism associated with it. 7  Jared McBride, “How Ukraine’s New Memory Commissar Is Controlling the Nation’s Past,” The Nation, August 13, 2015, https://www.thenation.com/article/archive/how-­ ukraines-­new-memory-commissar-is-controlling-the-nations-past/, accessed April 5, 2021.

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

89

In their pursuit of national myths, the ruling nationalists released forces which they were unable to control. And so, during the recent March of Independence, in November 2017, 60,000 Poles took to the streets of their capital in a demonstration co-organized by two neo-fascist organizations. It is of little importance whether all or some of the participants shared the extremists’ ideology. What matters is that they chose to take part in a march organized by the fascists. It is within such a climate and within such a political context, that the authorities in Warsaw decided to move ahead with the new law “to defend the good name of the Polish nation.” Certain of public support, and contemptuous of the voice of international public opinion, they rammed the bill through the Parliament. To quote the new Polish Holocaust law (Article 55 a. 1): “Who publicly and against the facts ascribes to the Polish Nation, or to the Polish State the responsibility or complicity for the Nazi crimes committed by the III German Reich […] or other crimes which constitute crimes against peace, humanity, or war crimes, […] will be subject to a fine or three years of imprisonment. The sentence shall be made public.” One should not be deluded by the words “against the facts” included in the new legislation because it will be, of course, the police and the prosecutors who will henceforth establish what the facts are and what can be said and written. Now, how should one understand the real meaning of the new Polish legislation? What is it that hides between the lines of ambiguously worded paragraphs? This is the junction where Holocaust envy meets Holocaust distortion—which in itself is a form of Holocaust denial. A memo sent out by the Polish ministry of Foreign Affairs allows us to better understand the true intent of the Polish legal minds responsible for Article 55. In order to help historians to avoid costly (and potentially time-consuming, i.e. time in jail) mistakes that the Polish ministry of Foreign Affairs established— and I am not being facetious—include a long list of “wrong memory codes,” or expressions which “falsify the role of Poland during WW II” and which need to be reported to the nearest Polish diplomat for further action. Sadly—and not by chance—the list of wrong memory codes includes mostly the expressions linked, one way or the other to the Holocaust. On the long list of these “wrong memory codes” which have to be expunged from historical narrative one finds, among others: “Polish genocide,” “Polish war crimes,” “Polish mass murders,” “Polish internment camps,” “Polish work camps (!)” and—most importantly—“Polish participation in the Holocaust.”

90 

J. GRABOWSKI

And it is at this stage, that Polish “history policy” meets Holocaust denial, or—to be more precise—“Holocaust deflection.” Holocaust deflection entails admitting that the Holocaust happened while denying the complicity or various types of participation of countries, specific groups, or individuals, despite ample evidence to the contrary. Major examples of deflection occur in those countries where, during the war, Germans were helped by important segments of the local populations in the despoliation, deportation, and killing of the Jews. Many European nations have tried to present themselves exclusively as victims of the Germans and have denied or diluted their participation and responsibility or that of their nationals for the role they played in the Holocaust. Michael Shafir calls this “deflective negationism.” He and others have analyzed the phenomenon in various countries of Eastern and Central Europe in the communist and post-communist periods. Shafir observes that whereas outright negationism rejects the very existence of the Holocaust, its deflective alternative does not; or, to some extent, it does, but more perversely so. Rather than negate the Holocaust, deflective negationism transfers the guilt for the perpetration of crimes to members of other nations or it minimizes own-nation participation in their perpetration to insignificant “aberrations.”8 The intensity of the international outcry which followed the introduction of the Polish Holocaust Law must have come as an unpleasant surprise to the authorities. It was, however, too late for any immediate changes: the new law was very popular with PiS voters and not unpopular with those who favor the opposition. Attacks from abroad were thus initially discounted as a foreign assault upon “national history” and an “abuse of the honor of the Polish Nation.” The state run television and radio explained the protests against the new law as a vicious attack on Poland perpetrated by vaguely defined “Jewish-German interests.” If anti-Semitic discourse was, until then, largely absent from the mainstream media, now the sewers exploded. “chciwe parchy!”—“greedy scabs!” one journalist on state television referred to Jews—and by scabs he did not mean strike-­ breaking workers but an awful skin disease, one of the most vile, hateful and repugnant expressions used to describe the Jews (and in the Polish vocabulary the choice of vile expressions to describe Jews is truly impressive). Prof. A. Zybertowicz, the adviser to the Polish president, also had a contribution to make—“the Jews protest [the new law] because they 8

 Manfred Gerstenfeld, The Abuse of Holocaust Memory: Distortions and Responses, 58.

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

91

want to cover up their own passivity during the Holocaust!”—he declared on national television. “Who was collaborating in the ghettos? Jews,” declared the presidential advisor, “and Israel still did not work its way through this lesson.” From other quarters, one could hear that the Jews faked indignation with the new law but their true purpose was to blackmail Poles into offering restitution for property lost during the Shoah. Member of the Senate, Czerwinski of the ruling party, declared, “it’s not freedom and liberty that they [i.e. the Jews] want, it’s - as always - money!” He went on: “these strange activities, hostile to Poland, conducted by the Jewish circles, can only be explained as an attempt to recover substantial monetary benefits from Poland.” From the main channel of state television, one could learn that concentrations camps should be called “Jewish camps,” because it was the Jews who fed other Jews into the ovens of the crematoria. Politicians’ statements about “Jewish ingratitude” are too numerous to be listed here. Finally, the Israeli embassy had to file an official complaint about the unprecedented wave of hate targeted at Jews and Israel and Michael Schudrich, the chief Rabbi of the Polish Jewish community, expressed concern about fearful Jews leaving the country. Perhaps the narratives themselves are not new; what is new is the rank of officials who now publicly espouse them. And so, Anna Zalewska, the Polish Minister of Education queried on national television about the identity of perpetrators of the massacre in Jedwabne, in 1941, or that of the murderers involved in the notorious Kielce 1946 pogrom, was at a loss for words. “The facts need to be checked again,” she said, “historians are not sure,”; “[Professor Jan T.] Gross writes lies,” or “it’s the antisemites who killed them,” were the stumbling responses coming from the Minister of Education. These were shocking words, and equally shocking was the lack of any reaction whatsoever on the part of the Polish government. Indeed, the ignorance (or bad will) demonstrated by Minister Zalewska is not an isolated event. Jaroslaw Szarek, the Director of the Institute of National Remembrance (IPN), when asked about the identity of the murderers from Jedwabne, immediately pointed to the Germans, invalidating, by the same token, the previous findings of the IPN, which placed the blame squarely on the shoulders of the murderous Polish mob. If someone had hopes linked to Mateusz Morawiecki, the new Polish prime minister, they were soon disabused of their illusions. Very much a partisan of the “national innocence” myth, Morawiecki waded into the fields of history with much bravado and with little sense. In his inaugural speech he reminded listeners that Polish history was glorious and declared,

92 

J. GRABOWSKI

presumably without irony, that Poland’s mission was “to re-Christianize” Europe, whatever that might mean. Soon enough, the Polish PM gathered new insights into the history of the Holocaust, and more specifically into the real identity of the perpetrators of the notorious 1946 Kielce pogrom. Wasting no time, he placed the blame—against overwhelming and widely accepted historical evidence—on the communists, rather than on the enraged mob of Polish townspeople driven to frenzy by tales of ritual murder: “it needs to be stated firmly,” he declared, “that the Kielce pogrom was organized by and, in a sense, provoked, by the communist authorities.” To make matters worse, if that were possible, Morawiecki took advantage of his short visit to Germany to pay his respects to the deceased members of the NSZ “Swietokrzyska” Brigade, one of the very rare units of the Polish resistance which placed struggle against the communists above the struggle against the Germans, and in 1944-45 openly collaborated with the Nazis. To add more spice to his visit, the Polish PM, during a press conference in Munich, made a comment about “Jewish murderers during the Holocaust.” There is a German proverb, “Einmal ist keinmal”—“once does not count.” But the same outrage repeated time and time again indicates a more profound problem, indeed a systemic one. On June 27, 2018, the Polish lawmakers passed changes to a disputed Holocaust speech law, removing criminal provisions for attributing Nazi crimes to Poles. The changes have been voted at a breakneck pace, and once again the law was rushed without debate, without arguments being heard or questions asked. Barely out of the parliament, the changes were signed into law by the obedient president and, still the same day, the Polish and Israeli prime ministers issued a joint declaration indicating that the crisis was over and that business should return back to normal. The joint declaration was not a simple admission of previous follies—it was another element in the ongoing “memory war” raging in Poland—with the Holocaust as its stage. The joint declaration condemned “every single case of cruelty against Jews perpetrated by Poles during World War II” but noted “heroic acts of numerous Poles, especially the Righteous Among the Nations, who risked their lives to save Jewish people.” It also stressed the good offices of the Polish people and Polish government in exile in rescuing the Polish Jews and, in a very strange twist, it rejected anti-­Semitism and at the same time introduced a new term: “antipolonism,” placing it on equal footing with anti-Semitism. For those who are unfamiliar with the darker corners of the internet, dusty spaces to which Polish nationalists and right-wing conspiracy theorists were—until recently—largely limited,

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

93

should know that the term “antipolonism” subsumes the existence of a dark conspiracy whose names are many: Jews, Germans, Russians and other evil forces, which scheme to malign the good name of the Polish nation. To have this term recognized by an Israeli prime minister on equal terms with anti-Semitism can only testify to the desperation and isolation of the Israeli authorities ready to align themselves with the most odious political forces in Europe in their quest for political support. During the recent meeting of the ruling Law and Justice (PiS) party, Mateusz Morawiecki—the Polish PM—gave a speech to loyal party members. In addition to many half-truths and outright lies, he went on to say, “now, after a few months, I can say that Israel talks about history using our terms.” This, unfortunately, seems to be true—at least as far as “official” Israel of Benyamin Netanyahu and his acolytes is concerned. The cozying up of Netanyahu to the authoritarian regimes in Warsaw and in Budapest can no longer be denied. According to Yehuda Bauer, the dean of Israeli Holocaust historians, Netanyahu’s participation in the joint declaration amounted to nothing less than an act of treason with regard to the memory of the six million Jewish victims of the Shoah: “It’s a betrayal of the memory of the Holocaust and the interest of the Jewish people. And the reason for it is entirely pragmatic: the diplomatic, political, and economic ties between the Israeli government and the government of Poland.”9 A few days later Yad Vashem published an important, principled, and forceful statement which showed the recent joint Polish-Israeli governmental declaration on the Polish Holocaust Law, for what it was—a disingenuous and heavy-handed attempt to distort the history of the Shoah. Israeli politicians seemed to look for badly needed political allies, it stated, while Polish nationalists seemed to look for a way back to the diplomatic mainstream from which they have been expelled during the last few months. Historical truth is the victim. It is important to note that, with the notable and sad exception of Israeli scholar Dina Porat, no historian of the Holocaust endorsed the Polish-Israeli declaration. However, the pernicious echoes of the declaration are proliferating. Independent scholars are already attacked by the Polish authorities, and are being accused of “anti-Polish racism,” whatever that might mean. In February 2019, the

9  Cited in Raphael Aren, “Does the Israeli-Polish Holocaust law agreement defend truth or betray history?” Times of Israel, July 4, 2018, https://www.timesofisrael.com/does-the-­israelipolish-holocaust-law-agreement-defend-truth-or-betray-history/, accessed April 5, 2021.

94 

J. GRABOWSKI

Polish PM Morawiecki made repeated references to “racist antipolonism,” actually directing his remarks at the members of the Israeli government.10 While international pressure managed to get Poland to annul the criminal sanctions threatening researchers, scholars, educators and journalists, the controversial law still stipulates fines for individuals who accuse the “Polish Nation or the Republic of Poland” of having been complicit or co-complicit in the Holocaust. More importantly, it introduces into the legal arena the undefined, vague, and highly subjective concept of “good name of the Polish nation” and gives NGOs and the state institutions tools with which they can initiate civil legal action and harassment of those who cross the lines of the “historical warfare.” The end of criminal charges is, of course, not a sign of Polish authorities’ changing their mind about the past. Quite the contrary. On June 27, 2018, the same day the law had been decriminalized, Morawiecki stated in the Parliament, “those, who claim that the Polish nation, or the Polish state, bear responsibility for the crimes of WWII, should—of course—be in prison. But we have to act bearing in mind international realities and this is why we take them into account.” Not prone to subtlety, and using tough, military language, Morawiecki continued, “Today an American or a German publisher will think twice before he publishes an article where ‘Polish concentration camps’ are mentioned. He will face a threat of civil litigation and 100 million Euros in fines. These provisions remain in the law. We strengthened our ability to defend our rights. We are not retreating. This slight correction [that is, decriminalization] will only strengthen our positions. Over the last few months we were able to raise the consciousness of our partners. This [joint declaration] shows that our legislation was a step in the right direction. Our historical consciousness looks today better—and thanks to this legislation.” One could continue quoting the jingoistic declaration of Polish politicians but one thing is certain: the militant, threatening discourse and tone in matters of history and most specifically in matters of history of the Holocaust is nowadays a trademark of the Polish political scene. For the nationalists in power the legal, illegal and semi-legal instruments deployed 10  “It saddens me that anti-Polonism seems to be the position of one of the top Israeli officials [i.e. foreign minister Israel Katz],” Ofer Aderet, “Polish Prime Minister to Haaretz: Tens of Thousands of Poles Aided Jews. We Won’t Give in to Lies,” Haaretz, February 22, 2019, https://www.haaretz.com/world-news/europe/.premium-polish-pm-tens-of-­­thousands-ofpoles-aided-the-jews-we-won-t-give-in-to-lies-1.6958688, accessed April 4, 2021.

4  POLISH MEMORY LAWS AND THE DISTORTION OF THE HISTORY… 

95

to shore up and defend the myths of national innocence, to reaffirm their own ethos of victims of history who always held high moral ground, are not a marginal, fringe, after-hours pursuit. This theme, this area, is precisely what makes them who they are; it constitutes the core of their beliefs and—more importantly—the core of the beliefs of the electorate. One of the most pernicious aspects of the new “history laws” is that they are very popular—because, in most cases they reinforce what the vast majority of people believe in and want to continue to believe in. Until 1989, in Eastern Europe, communists tried to impose their own historical narrative. They were largely unsuccessful because they were selling the merchandise that no one wanted to buy. Nationalists today offer a product which is not only palatable but even desired by their audience. Who does not want to be told that his forefathers, his nation, or his tribe held—in the course of history—high moral ground and always found themselves on the side of justice and freedom? To quote one of the most quotable books of all time—George Orwell’s “1984”—“The best books… are those that tell you what you know already.”11 The new laws need not necessarily be immediately enforced. It is enough that they are on the books—or even that they are being contemplated by the authorities. They have already started having the so-called freezing effect. Humanists, professionally speaking, tend to be delicate and fragile creatures. Professors, teachers, educators and graduate students, largely dependent on government-funded and public jobs, are fearful of crossing unwritten lines. And crossing the written ones can be—as many historians in Poland have already learned to their chagrin- a career ending exercise. Under the shield of new laws, with established scholars afraid of voicing their objections, with graduate students wisely choosing “safe” areas for their historical interest, and with the massive support of the state, very disturbing and pernicious historical narratives gain ground— and gain legitimacy.

 Orwell, 1984, 200.

11

CHAPTER 5

Legislating Historical Memory in Post-Soviet Ukraine Tatiana Zhurzhenko

This chapter analyses the legislation of historical memory in Ukraine focusing mainly on the post-Maidan era, but addressing the notorious “de-communization laws” in the broader historical perspective of the post-Soviet transition. While there are some recent publications on various aspects of mnemonic legislation in Ukraine,1 a systematic account is still missing. The so-called de-communization laws adopted by the Ukrainian parliament in 2015 have met with a lot of domestic and international criticism; they have also polarized the academic community and the Ukrainian public opinion. Some aspects of the new legislation have provoked 1  See for example Georgi Kasianov, “Istoricheskaia Politika i ‘memorial’nye’ zakony v Ukraine: nachalo XXI veka,” Istoricheskaya Ekspertiza 2 (2016): 28–57; Oksana Shevel, “Decommunization in Post-Euromaidan Ukraine. Law and Practice,” PONARS Eurasia Policy Memo, January 2016; Nikolay Koposov, Memory Laws, Memory Wars. The Politics of the Past in Europe and Russia (Cambridge: Cambridge UP, 2018) 177–206; Ilya Nuzov, “The Dynamics of Collective Memory in the Ukraine Crisis: A Transitional Justice Perspective,” International Journal of Transitional Justice 11 (2017): 132–153.

T. Zhurzhenko (*) Researcher ZOiS - Centre for East European and International Studies, Berlin, Germany © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_5

97

98 

T. ZHURZHENKO

concerns regarding the freedom of academic research and freedom of media as well as the potentially divisive and excluding features of the new official historical narrative. The proponents of the de-communization laws, in turn, refer to the Russian hybrid aggression and the need for a strong national identity. They use this argument as an additional justification for a long overdue legislation in a country which has in fact hardly ever dealt critically and in a systematic way with its Soviet past. Legislation of historical memory, a rather controversial issue in the West, is thus even more disputed in war-torn Ukraine which is facing the difficult challenge of preserving both democratic freedoms and national sovereignty. Imposing a single historical narrative on a culturally diverse country with distinct regional identities and collective memories, not to mention the conflict in Donbas, may not be the best way to promote national reconciliation. At the same time, as many in Ukraine would agree, the Maidan has opened a historical window of opportunity for comprehensive de-­ communization and for leaving Russia’s cultural and political orbit. Denouncing Soviet totalitarianism and commemorating its victims strengthens Ukraine’s strategic choice in favour of Europe. The wording of the new legislation is, however, often reminiscent of the Russian attempt to protect the “victory in the Great Patriotic war” from “falsifications.” In any case, Ukraine’s troubled transition to democracy, further complicated by the armed conflict, can serve as a perfect testing ground for different conceptual approaches to the issue of legislating historical memory, from post-colonialism to transitional justice to mnemonic security. The first section of this chapter positions Ukraine in a comparative Eastern European perspective and in the broader geopolitical context of competing Western and Russian politics of legislating history. The second section offers a brief overview of the history of mnemonic legislation in Ukraine, with an emphasis on the criminalization of statements about the past. The third and fourth sections address the most recent wave of mnemonic legislation in Ukraine—the de-communization laws of 2015—in the new political, cultural, and social context of Ukraine after the Maidan, the annexation of Crimea by Russia and the military conflict in Donbas. I will analyse the public perception of the de-communization laws, the political and intellectual debates around them (both domestic and international), and the responses from the regions in several overlapping contexts which include: (a) reconceptualization of the country’s national identity, its pro-European choice and political as well as cultural distancing from Russia termed by some observers as “decolonization”; (b) democracy, freedom of speech and human rights vs.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

99

national security, and more specifically, “mnemonic security”; (c) historical justice for victims and perpetrators of communist crimes vs. truth-seeking, justice and reconciliation in the current Ukrainian conflict.

Ukraine in the (Eastern) European Context The dramatic history of the twentieth century in the Ukrainian lands might excite scholars interested in transnational, regional, and entangled history but it poses a serious challenge for those who believe that nation and state building requires a single incontestable historical narrative accepted by all citizens. Attempts to create an independent state in 1917–1921 ultimately failed, and the Soviet regime was established over much of today’s Ukrainian territory, while its western borderlands became parts of interwar Poland, Czechoslovakia, and Romania. In the 1920s, the affirmative cultural politics of the Ukrainian Bolsheviks led to a short period of “national renaissance,” which ended abruptly with mass political repressions, forceful collectivization, and the Great Famine of 1932–1933, known in contemporary Ukraine as the Holodomor. During World War II, millions of Ukrainians fought in the Red Army against Nazi Germany. At the same time, in Western Ukraine the nationalist underground (Organization of Ukrainian Nationalists, OUN) and its military wing, the Ukrainian Insurgent Army (UPA), pursued what appeared to be another chance to establish a Ukrainian state. At the beginning of World War II, the OUN collaborated with Nazi Germany, and the UPA, which was fighting against the Red Army, committed crimes against the Polish and Jewish populations. The Volhynia massacre and the involvement in the Holocaust overshadow the popular memory of the UPA as fighters for the national cause, making their political rehabilitation controversial. After World War II the nationalist underground was crushed by the Soviet regime, with the result that the newly acquired western Ukrainian territories were Sovietized and the UPA was stigmatized by Soviet propaganda as Nazi criminals and “traitors”. The Soviet Ukraine shared with Russia and other Soviet republics two powerful official myths: the myth of the October Revolution 1917 and that of the Great Patriotic War. And while the former hardly survived the end of the Soviet Union, the latter has been deeply rooted in Soviet collective memory, especially in Eastern and Central Ukraine. Re-appropriated by the post-Soviet political elites, it became the main symbolic bond connecting Ukraine to Russia where the “victory over fascism” became the main pillar of its post-Soviet national

100 

T. ZHURZHENKO

identity. Finally, and not unimportantly when it comes to understanding the impetus to enact de-communization laws and their political legitimation, this myth was instrumentalized by Moscow in winter and spring 2014 in order to mobilize the Russian-speaking population in Crimea and Donbas against the “fascist” Maidan and later the Kyiv “junta.”2 Back in 1991, with the collapse of the Soviet Union, independent Ukraine faced multiple challenges: not only did it have to implement market reforms on the ruins of the planned economy, but it also had to build new state institutions and to integrate former Soviet citizens with diverse ethnic, linguistic, and cultural backgrounds into a viable and coherent national community. As in other countries of Eastern Europe, legislating historical memory in Ukraine was used as an instrument to deal with the legacy of the Soviet regime and to build a new democratic system.3 But as was common elsewhere in the post-Soviet space, priority was given to constructing the new national identity around narratives of suffering, heroic myths, and symbols of historical continuity.4 As argued by some observers,5 in Ukraine the national democratic opposition to the communist regime failed to seize power, instead making a deal with the former communist nomenklatura (the so-called sovereign communists), providing the latter with national symbols and historical narratives in exchange for being accepted as junior partners. The legislation of historical memory in Ukraine, at least until the Orange Revolution in 2004, reflected this compromise as it aimed at constructing a new “national memory” rather than dealing critically with the Soviet past. This compromise was largely limited to narratives and historical figures that had already been included in the Soviet canon and thus was broadly accepted throughout Ukraine. Issues such as the Holodomor and the role of the UPA remained politically controversial and were polarizing Ukrainian political elites and society. In search of a new state identity, Ukraine, unlike most countries of East Central Europe and the Baltic states, could not draw on political and legislative traditions of an interwar statehood. In contrast, for example, one 2  Tatiana Zhurzhenko, “Russia’s never-ending war against ‘fascism’: Memory politics in the Russian-Ukrainian conflict,”Eurozine, May 8, 2015, www.eurozine.com/russias-never-­ ending-war-against-fascism/, accessed August 25, 2021. 3  Koposov, Memory Laws, Memory Wars. 4  Kasianov, “Istoricheskaia Politika i ‘memorial’nye’ zakony v Ukraine.” 5  E.g. Mykola Riabchuk, “Holodomor: The Politics of Memory and Political Infighting in Contemporary Ukraine,” Harriman Review 16.2 (2008): 3–9.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

101

can consider the case of Lithuania, which, while still being a part of the Soviet Union, adopted some transitional legal measures aimed at “establishing the illegality of the Soviet occupation and creating a basis for reconstituting Lithuania’s sovereignty.”6 In 1989, the Lithuanian Supreme Council declared the occupation and annexation of Lithuania in 1940 to be international crimes; and in 1990, the Constitution of 1938 was reinstated (albeit briefly) with the purpose of establishing legal continuity between the interwar state and post-Soviet Lithuania. Independent Ukraine borrowed its new state symbols from the short-lived Ukrainian People’s Republic (1918–1921), but what mattered legally was the Law “On the Legal Succession of Ukraine,”7 adopted by the Ukrainian parliament on 12 September 1991, that declared independent Ukraine the legal successor of the Ukrainian SSR. The post-Soviet Ukraine thus “sought to reconcile both political traditions, but the crisis of legitimacy and the Russian aggression in 2014 raised anew the question of whether Ukraine had gained or restored its national independence back in 1991.”8 More than 70 years of Soviet rule in Ukraine made it difficult to follow the Baltic model and externalize the communist regime as a result of a foreign “occupation”. The idea found some resonance in Western Ukraine, which was fully incorporated in the Ukrainian SSR only after World War II. But in general, independent Ukraine as it emerged in 1991, with its state borders, industrial economy and urbanized society, was largely perceived as a product of the “Soviet century”. It was the fall of the Moscow-­ backed Yanukovych regime and the Russian aggression in 2014 that helped legitimize the discourse of “Soviet occupation,” making its appropriation by the post-Maidan Ukrainian government possible. Since then, the Ukrainian Institute of National Memory has been promoting a new official narrative of Ukraine’s century-long fight against the Soviet empire. Moscow’s open questioning of the legitimacy of the Ukrainian state at the peak of the 2014 crisis contributed to the ontological anxiety of the

6   Tomas Balkelis and Violeta Davoliū tė, “Legislated History in Post-Communist Lithuania,” The Palgrave Handbook of State-Sponsored History After 1945, eds. Berber Bevernage and Nico Wouters (London: Palgrave Macmillan UK, 2018): 123. 7  Law № 1543-XII from September 12, 1991 “On the Legal Succession of Ukraine,” zakon.rada.gov.ua/laws/show/1543-12#Text, accessed August 25, 2021. 8  Tatiana Zhurzhenko, “The making and unmaking of revolutions: 1917 in the light of Maidan,” in Eurozine, November 30, 2017, www.eurozine.com/the-making-and-­unmakingof-­revolutions/, accessed August 25, 2021.

102 

T. ZHURZHENKO

Ukrainian political elite and opened the way to a new mnemonic legislation, namely the “de-communization laws” of 2015. In the context of Ukraine’s competitive politics, the legislation of historical memory has been an instrument used to gain electoral support, to create political alliances and to denounce opponents. From the early 1990s, Ukraine’s relative political pluralism (especially in comparison with other post-Soviet countries) allowed history to become a matter of public politics, thus inevitably opening it to instrumentalization and political manipulation.9 Since the early 1990s, the Ukrainian parliament has been an arena of heated debates about Ukraine’s history, and especially since the mid-2000s, presidents, political parties, and deputies have been prolific in drafting memory laws. The legislation of historical memory in Ukraine should also be considered in the context of the country’s political system, which has been under permanent re-construction. The constitutional reform of 2004, which transformed Ukraine from a semi-­presidential to a parliamentary-presidential republic, was revoked in 2010 under Yanukovych and then restored in 2014. In any case, Ukrainian presidents have played an important role in symbolic and historical politics, just as presidential decrees have been an important part of historical legislation.10 The judiciary, on the other hand, has hardly been involved in legislating history, a fact that differentiates Ukraine from East Central Europe and the Baltic states. One important exception to this general lack of involvement, however, was the decision of the Kyiv Court of Appeals on the Ukrainian genocide of 1932–1933.11 On 13 January 2010, the court declared Stalin, Molotov, Kaganovich, Postyshev, Kosior, and Khataievich guilty of “deliberately organizing a genocide of a part of the Ukrainian national group, which resulted in the killing of 3,941,000 persons.” Some authors have described the Ukrainian collective memory as “divided,” characterized by the persisting clash of two competing 9  It is this aspect of instrumentalization and political manipulation of the past that some critically minded historians see as the driving force behind legislating history. See for example Kasianov, “Istoricheskaia Politika i ‘memorial’nye’ zakony v Ukraine”; Georgi Kasianov, Past Continuous: Istorychna polityka 1980h–2000h: Ukraina ta susidy (Kyiv: Laurus, 2018). 10  See the recent detailed research on the role of Ukrainian presidents in memory politics by Oleksandr Hrytsenko, Prezydenty i pam’iat’. Polityka pam’iati prezydentiv Ukrainy (1994–2014): pidhruntia, poslannia, realizatziia, rezul’taty (Kyiv: K.I.C, 2017). 11  “Decision of the Kyiv Court of Appeals in the criminal case upon the fact of the crime of genocide in Ukraine in 1932–33,” Kharkiv Human Rights Protection Group, February 1, 2010, khpg.org/index.php?id=1265039604, accessed August 25, 2021.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

103

historical narratives—the Ukrainian nationalist on the one hand and the Soviet nostalgic on the other.12 Historian Stefan Tröbst, who differentiates between several modes of coping with the communist past in the countries of the region, suggests a typology of “cultures of remembrance” in Eastern Europe.13 According to him, Ukraine, along with Hungary and Poland, belongs to societies where fierce political controversies over the interpretation of the communist past take place. As Oxana Shevel argues, Ukraine in this respect can be compared to countries that have experienced civil war (such as Spain) as it faces a similar dilemma, namely reckoning with the crimes of state dictatorship in the name of justice vs. amnesia for the sake of civic peace.14 Until 2014, she argues, the mnemonic regime in Ukraine can be defined as fractured and contentious:15 key mnemonic actors “comprised two sets of mnemonic warriors (communist and nationalist) who have been striving to establish a unified memory field wherein their view of the past will be hegemonic, and a power-holding centre that has occasionally preferred strategic abnegation but has frequently acted also as a mnemonic warrior siding with either the left or the right.”16 From this perspective, the legislation of history in post-Soviet Ukraine was a hostage of the profound conflict between the Soviet nostalgists and national democrats/nationalists both acting as mnemonic warriors and perceiving the 12  Wilfried Jilge, “The Politics of History and the Second World War in post-Communist Ukraine (1986/1991–2004/2005),” Jahrbücher für Geschichte Osteuropas Neue Folge, Bd. 54, H. 1, Themenschwerpunkt: Gespaltene Geschichtskulturen? Zweiter Weltkrieg und kollektive Erinnerungskulturen in der Ukraine, eds. Wilfried Jilge und Stefan Troebst (Stuttgart: Franz Steiner Verlag, 2006): 50–81; Oxana Shevel, “The Politics of Memory in a Divided Society: A Comparison of Post-Franco Spain and Post-Soviet Ukraine,” Slavic Review 70.1 (2011): 137–164; Oxana Shevel, “No Way Out? Post-Soviet Ukraine’s Memory Wars in Comparative Perspective,” Beyond the Euromaidan: Comparative Perspectives on Advancing Reform in Ukraine, eds. Henry Hale and Robert Orttung (Stanford: Stanford UP, 2016): 21–40. 13  Stefan Troebst, “‘Was für ein Teppich?’ Was Postkommunistische Erinnerungskulturen in (Mittel)Europa,” Kommunismus im Museum. Formen der Ausnandersetzung in Deutschland und Ostmitteleuropa, eds. Volkhard Knigge, Ulrich Màhlert (Köln: Böhlau, 2005). 14  Shevel, “The Politics of Memory in a Divided Society”; Oxana Shevel, “Memory of the Past and Visions of the Future: Remembering the Soviet Era and its End in Ukraine,” Twenty Years After Communism, eds. Michael Bernhard and Jan Kubik (Oxford: Oxford UP, 2014): 146–169; Shevel, “No Way Out? Post-Soviet Ukraine’s Memory Wars in Comparative Perspective.” 15  See the typology of mnemonic regimes suggested by Bernhard and Kubik (2014). 16   Shevel, “No Way Out? Post-Soviet Ukraine’s Memory Wars in Comparative Perspective,” 29.

104 

T. ZHURZHENKO

battle for the hegemony of their historical narrative as a zero-sum game. As a result of the annexation of Crimea by Russia and the military conflict in Donbas, a significant part of the electorate that had supported pro-­ Russian politicians (representing the Soviet-nostalgic paradigm of memory) was excluded from political participation,17 and the Communist Party was delegitimized due to its support of Russian aggression. Shevel identifies a potential shift towards a unified mnemonic regime, as the absence of a significant political opposition to de-communization seems to indicate. In any case, a democratic mnemonic regime that opens the public space up for pluralist narratives of the past remains a distant aim. Finally, the transnationalization of memory is another important perspective to be considered when assessing the legislation of history in Ukraine. Nikolay Koposov in his study of mnemonic legislation in Western and Eastern Europe, underlines the importance of the Ukrainian case as a battlefield where (Eastern) European and Russian influences and approaches clash.18 In his analysis, he focuses rather on the “entangled” Russian and Ukrainian legislative initiatives and specifically argues, “The vocabulary of most Russian and some Ukrainian memory law projects and, more broadly, the language of Putin’s current politics of memory was initially developed by a group of pro-Russian Ukrainian politicians and Russian nationalists actively involved in Ukraine’s internal affairs.”19 However, the impact of East Central European countries and the Baltic States have been very important too, albeit on a different level. Already in the wake of the Orange Revolution, there was a strong feeling on the part of Ukrainian society and the political opposition that while several Western neighbours were entering the European Union in 2004, Ukraine was going to miss this train. The de-communization laws in Poland and in the Baltic states (the Czech Republic and Hungary were also referred to) came to be seen as a precondition for successful democratic transition and European integration of these countries. A part of the Ukrainian opposition believed that Ukraine had to catch up with these countries in terms of dealing with its communist past. The internationalization and Europeanization of the discourse on communist crimes in the 2000s (e.g. the Prague Declaration 2008) was a strong incentive for these political 17   Shevel, “No Way Out? Post-Soviet Ukraine’s Memory Wars in Comparative Perspective,” 30. 18  Koposov, Memory Laws, Memory Wars. 19  Koposov, Memory Laws, Memory Wars, 177.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

105

forces. The Polish example (the creation of the Institute for National Remembrance, the 1998 Memory Law,20 the heroization of the Armia Krajowa, and the political rehabilitation of the anti-communist underground fighters) became a model for those political forces in Ukraine that supported Viktor Yushchenko as presidential candidate. Last but not least, the universalization of Holocaust discourse and the institutionalization of Holocaust memory on the international level, and in the EU in particular, stimulated public debate on the Holocaust in Ukrainian history and memory. More specifically, these tendencies affected mnemonic legislation in Ukraine in two ways: Holocaust discourse was adopted by some political actors as proof of Ukraine belonging within the realm of European commemorative culture, and thus to Europe, and at the same time it was used for strengthening and legitimizing its own narrative of national victimhood.

A Brief Overview of the History of Mnemonic Legislation in Ukraine since 1991 The analysis of the four memory laws adopted in 2015 and of the ongoing debate on de-communization should be preceded by a brief overview of the history of mnemonic legislation in post-Soviet Ukraine. Attempts to provide such an overview were recently made by Georgi Kasianov21 and Nikolay Koposov,22 albeit from rather opposite perspectives. Kasianov deals with mnemonic legislative initiatives mainly coming from the national democratic and nationalist camp; he focuses on the instrumentalization of historical memory and its political manipulation by this part of the political elites. Koposov pays more attention to the draft laws coming from Ukrainian Communists and pro-Russian politicians, and sees the historical legislation in Ukraine as an arena of Russian influences. For him, the legislative initiatives of Viktor Yushchenko and his political allies were a justified reaction to the consolidation of the pro-Russian forces on the platform of the Soviet/Russian cult of the Great Patriotic War. While Kasianov is rather critical of the political uses of history by the Ukrainian 20  “Act on the Institute of National Remembrance—Commission for the Prosecution of Crimes against the Polish Nation,” December 18, 1998. 21  Kasianov, “Istoricheskaia Politika i ‘memorial’nye’ zakony v Ukraine”; Kasianov, Past Continuous, 293–321. 22  Koposov, Memory Laws, Memory Wars, 177–206.

106 

T. ZHURZHENKO

“nationalizing state” and the legislation of historical memory in particular, Koposov sees the latter as a legitimate instrument for coming to terms with the Soviet past. Both perspectives complement each other and provide insight into the Ukrainian war of two historical narratives (and political camps supporting them) by means of mnemonic legislation. Before we examine the history of mnemonic legislation in Ukraine, a brief note on what is understood by the term “memory law” in this chapter is needed. According to Koposov, “the hard core of the broadly understood category of memory laws consists of legislation penalizing statements about the past (or memory laws per se) while its periphery includes several other kinds of laws”23 referring to history and memory but regulating various aspects of state policy, from official commemorations and education to social protection of war veterans. In a similar vein, Antoon De Baets differentiates between prohibitive and prescriptive memory laws, the latter being coercive or non-coercive.24 The focus of this chapter is on those memory laws that prohibit and/or criminalize statements about the past. These laws are particularly controversial because they are often seen as a challenge to basic freedoms of a democratic society. They are addressed here in the broader context of mnemonic legislation in post-Soviet Ukraine. It should be noted that already in April 1991, before the official declaration of state independence, the Ukrainian parliament adopted the Law “On the Rehabilitation of the Victims of Political Repressions in Ukraine.”25 Similar legislation was adopted in other Soviet republics (e.g. in the Russian Federation in October 1991), at the peak of the democratization processes launched in the era of perestroika and glasnost. But in general, during the first post-Soviet decade, Ukrainian legislators hardly addressed issues of historical memory. Some laws adopted during this period can be seen as managing the (dis)continuity with the Soviet regime, such as the Law “On Converting the Property of the Communist Party of Ukraine and the Communist Party of the Soviet Union into  Koposov, Memory Laws, Memory Wars, 6.  Antoon de Baets, “Laws Governing the Historian’s Free Expression,” The Palgrave Handbook of State-Sponsored History After 1945, eds. Berber Bevernage and Nico Wouters (London: Palgrave Macmillan UK, 2018): 55. 25  Law № 962-XII from April 17, 1991“On the Rehabilitation of the Victims of Political Repressions in Ukraine.” It was amended by the Law № 2325-VIII, March 13, 2018, which, among other things, changed the title of the 1991 law into Law “On Rehabilitation of Victims of Repressions by the Communist Totalitarian Regime of 1917–1991.” 23 24

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

107

State Property”26 or the Law “On the Status of War Veterans, Guarantees for their Social Protection.”27 Others, such as the Law “On the National Archive Fund and Archival Institutions”28 were meant to create the “infrastructure” of the national memory. Not being “memory laws” per se, however, they belong to the periphery of mnemonic legislation. According to Kasianov, the first memory law per se in independent Ukraine can be considered the Law “On Commemorating the Victory in the Great Patriotic War 1941–1945,”29 adopted on 20 April 2000 in the wake of the 55th anniversary of the end of World War II.  Like the law regarding war veterans, it created continuity with the Soviet public cult of the Great Patriotic War, at the same time re-appropriating it for nation-­ building purposes. The law reaffirmed the status of Victory Day (May 9) as a national holiday and stated that symbols of the Great Patriotic War era should be used during public festivities. The law specifically mentioned the “Victory Banner” (the banner raised by Soviet army soldiers on the Reichstag building in Berlin on May 1, 1945) as “a symbol of victory of the Soviet people, their army and fleet over fascist Germany.” Moreover, the law ordered measures like “preventing the falsification of the history of the Great Patriotic War in scientific research, educational literature, textbooks and mass media,” obviously inspired by the discourse on the “falsification” of history in Russia.30 In a rather Soviet manner, the law also ordered “recreating the heroic acts of the participants of the Great Patriotic War in works of literature and art, books and memorial albums, and mass media.”

26  Law № 2004-XII from December 20, 1991 “On Converting the Property of the Communist Party of Ukraine and the Communist Party of the Soviet Union into State Property,” zakon.rada.gov.ua/laws/show/2004-12#Text, accessed August 25, 2021. 27  Law № 3551-XII from 22 October 22, 1993 “On the Status of War Veterans, Guarantees for their Social Protection,” zakon.rada.gov.ua/laws/show/3551-12#Text, accessed August 25, 2021. 28  Law № 3814-XII from December 24, 1993 “On the National Archive Fund and Archival Institutions,” zakon.rada.gov.ua/laws/show/3814-12#Text, accessed August 25, 2021. 29  Kasianov, Past Continuous, 294–296; Law № 1684-III from April 20, 2000 “On Commemorating the Victory in the Great Patriotic War 1941–1945,” zakon.rada.gov.ua/ laws/show/1684-14#Text, accessed August 25, 2021. 30  After the conflict around the “Bronze Soldier” in Tallinn 2007, president Medvedev had set up the Presidential Commission of the Russian Federation to Counter Attempts to Falsify History to the Detriment of Russia’s Interest, with the main purpose to protect the official narrative of the Great Patriotic War. The Commission was invalidated in 2012.

108 

T. ZHURZHENKO

The law caused little controversy until 2011, when, under the presidency of Viktor Yanukovych and on the initiative of the Communist Party, an amendment was adopted ordering the official display of the Victory Banner, together with the national flag, at state institutions on May 9 and other memorial days related to World War II.  In so doing, the Victory Banner was practically elevated to the status of a state symbol. The amendment met resistance from the opposition in Parliament and provoked violent clashes in Lviv, where Soviet war veterans and pro-Russian activists were attacked by radical nationalists. One month later the Constitutional Court revoked the controversial amendment.31 This episode should be understood in the context of the later memory wars, which became a routine in the Ukrainian parliament from the mid-2000s on (discussed further below). Back in the first post-Soviet decade, conflicts between the left (Communists, sometimes supported by Socialists) and the national democrats were not rare in the parliament, but the power of legislating history was yet to be discovered by both sides. Public commemorations of important historical events and personalities were usually regulated by presidential decrees, which in most cases avoided polarizing political judgements. Nikolay Koposov sees Ukraine during Leonid Kravchuk’s (1991–1994) and Leonid Kuchma’s (1994–2005) presidencies as a typical case of “politics without a past” and explains it by the communist nomenklatura origins of both presidents.32 Other scholars agree that Kuchma’s politics of memory was pragmatic and situational, avoiding polarizing issues, and reactional rather than proactive.33 Positioning himself as an arbiter who stays above the fight of nationalists and communists, the president often acted as “mnemonic abnegator” sometimes siding with one or the other camp, mainly for reasons of political expediency. Legislation of historical memory intensified in Ukraine in the mid-­2000s as a result of important shifts in the Ukrainian (and Russian) political landscapes. The Orange Revolution of 2004 enabled the re-run of the second round of presidential elections and the victory of Viktor Yushchenko. The discourse of his political opponents stigmatizing him as a Ukrainian nationalist and even “fascist” (referring also to his project of rehabilitating  More in Kasianov, “Istoricheskaia Politika i ‘memorial’nye’ zakony v Ukraine,” 29–32.  Koposov, Memory Laws, Memory Wars, 181. 33  E.g. Hrytsenko, Prezydenty i pam’iat’. Polityka pam’iati prezydentiv Ukrainy (1994–2014), 266–272. 31 32

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

109

the OUN and UPA) pushed the politicization of historical memory in Ukraine to a new level. Moscow saw the Orange Revolution as a direct threat and thus became involved in the Ukrainian disputes about the past, siding with Yushchenko’s political opponents. The pro-Russian groups organizing public protests against his politics of memory received support from Russia, and the contacts between the Party of Regions and some notoriously anti-Ukrainian Russian politicians intensified. The memory war between Kyiv and Moscow encouraged the former to use legislation of history as an instrument of establishing and legitimizing its historical narrative on the international level. President Viktor Yushchenko, unlike Leonid Kuchma, had a strong opinion with regard to some contested topics of Ukrainian history. He believed that the collective memory of Ukrainians should be revived and cleansed from the artificially constructed Soviet narrative. Yushchenko’s politics of memory has usually been reduced to two main topics—rehabilitation of the OUN and UPA and gaining the legal recognition of the Holodomor as a genocide of Ukrainians by the Soviet regime.34 But in fact, Yushchenko’s memory politics included other priorities as well, such as the Cossack past, and in particular, the restoration of the Cossack capital Baturin and the historical rehabilitation of Hetman Mazepa. While his controversial decrees honouring the leaders of the OUN and UPA Stepan Bandera and Yuriy Shukhevych with the Hero of Ukraine title are frequently referenced, less known is the fact that Yushchenko awarded several Soviet war heroes of Ukrainian origins with the same title, thus including them in the new national canon. In the beginning of his presidential term, Yushchenko somewhat naively called for the reconciliation of the UPA and Soviet war veterans.35 Still, in some contexts he acted as mnemonic warrior, especially when promoting the official recognition of the Famine of 1932–1933 as a genocide of the Ukrainians by the Soviet regime. Using the occasion of the 75th anniversary of the Holodomor in 2008, Yushchenko made the international recognition of the Holodomor as an act of genocide a political priority of his presidency. By November 2008, the new national memorial “Candle of Memory” in Kyiv was inaugurated and memorials to the Holodomor victims were set up all over Ukraine. 34  The question if the Holodomor fits the legal definition of genocide has been intensely discussed by historians and will not be addressed here. 35  A not very realistic agenda, considering that Soviet veterans organizations belonged to the clientele of the Party of Regions or supported the Communists.

110 

T. ZHURZHENKO

The Institute for National Remembrance, created in 2006 on the initiative of Yushchenko as a state body with executive power, coordinated the commemoration nation-wide. A presidential decree from 2009 explicitly ordered the “dismantling of memorials and memorial signs devoted to persons involved in the organization of the Holodomor and political repressions.”36 In other words, during the years of Yushchenko’s presidency, not only the discourse of the Ukrainian nation as a collective victim of the communist regime became mainstream, but the Holodomor was represented as the ultimate crime, comparable with the Holocaust.37 In this context, one can better understand the significance of the draft of the law on the Holodomor, which Viktor Yushchenko submitted to the parliament at the beginning of November 2006 by express procedure. The draft declared the Famine an act of genocide against the Ukrainian nation, outlawed public denial of the fact of the Holodomor and introduced administrative liability for denial. The discussion of the draft in Parliament turned into a fierce political fight. The Party of Regions came up with an alternative draft, which proposed to define the Holodomor as a crime of Stalin’s regime against humanity and as a tragedy of the Ukrainian people (but not a genocide). The authors argued that the “genocide” definition would split Ukrainian society and alienate Russia. Eventually a compromise version was passed by the parliament in the same month. It declared the Holodomor an act of genocide against the Ukrainian people (not the nation), included as victims other nationalities living in Ukraine, and blurred the legal consequences of public denial. The Law “On the Holodomor of 1932–1933 in Ukraine”38 was supported by three parties, Our Ukraine (OU), Block of Yulia Tymoshenko (BYUT), and the Socialist Party, thus symbolically restoring the initial unity of the “Orange coalition”. In point of fact, the term “genocide” had already been used with regard to the Holodomor in President Kravchuk’s official speech of 1993. And in 2003, after parliamentary hearings on the Famine, the Ukrainian 36  Decree of the President of Ukraine № 432/2009 from June 12, 2009, “On Additional Measures to Commemorate the Victims of the Holodomor 1932–33 in Ukraine,” zakon5. rada.gov.ua/laws/show/432/2009, accessed August 25, 2021. 37  Tatiana Zhurzhenko, “’Capital of Despair’: Holodomor Memory and Political Conflicts in Kharkiv after the Orange Revolution,” East European Politics and Societies 25.3 (2011): 602–603. 38  Law № 376-V, cited in “On the Holodomor of 1932–33 in Ukraine,” November 28, 2006, zakon.rada.gov.ua/laws/show/376-16#Text, accessed August 25, 2021.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

111

parliament issued an appeal to the nation calling the Holodomor a genocide. But the law of 2006 marked a new situation, as it legally secured one single official interpretation of the Holodomor, thus excluding and even prohibiting those discourses which contested or avoided the term “genocide”. Consequently, the Party of Regions, supported by the Communists, adopted an “anti-genocide” discourse in an attempt to mobilize the “anti-­ Orange” electorate and to demonstrate solidarity with the official Russian position. (Moscow fiercely opposed the definition of the Famine in Ukraine as genocide and referred to it as a “common tragedy” of many nationalities living in the USSR.) In the following year, President Yushchenko submitted a new draft law criminalizing both the denial of the Holodomor as a genocide of the Ukrainian people and the denial of the Holocaust as a genocide of the Jewish people. Although unsuccessful, this initiative demonstrated an important development in the Ukrainian legislation on historical memory. The reference to international legislation criminalizing Holocaust denial signalled the internationalization of the Ukrainian discourse on genocide. On the one hand, this effort can be seen as an attempt to avoid a “competition of victimhoods”—an effort to win the support of the Ukrainian and international Jewish community, which was alarmed by the glorification of the UPA. On the other hand, critics of Yushchenko’s politics of memory saw this move as an attempt to instrumentalize the Holocaust for nationalist purposes, which in their eyes was especially disturbing in the absence of almost any serious public debate about the role of the Holocaust in Ukrainian history. Although Yushchenko’s draft was rejected, the idea of coupling the Holodomor and the Holocaust in order to justify the criminalization of public denial reappeared in other, subsequent law drafts.39 The issue remained on the agenda of the Ukrainian parliament in subsequent years: representatives of Yushchenko’s and Tymoshenko’s political parties tried to build on the relative success of the 2006 legislation and to criminalize the denial of the Holodomor, while the Party of Regions sought to redeem the legal designation of the Holodomor as genocide and replace it with the less political formula “tragedy of the Ukrainian people”. Nevertheless, the 2006 law on the Holodomor remained unchanged, and was not revoked even during Viktor Yanukovych’s presidency. Instead, 39  For example, in a draft proposed in 2015 by Oleksandr Feldman, businessman and head of one of the Jewish associations in Ukraine (Kasianov, “Istoricheskaia Politika i ‘memorial’nye’ zakony v Ukraine,” 38).

112 

T. ZHURZHENKO

the Holodomor commemoration was depoliticized, relegated to the level of civil society, and freed from “anti-Soviet” and “ethnic” connotations that irritated Moscow. The newly elected President Yanukovych publicly rejected the definition of the Holodomor as genocide at a session of the Parliamentary Assembly of the Council of Europe (PACE) just some weeks after his inauguration and practically never addressed the issue again. Although his era is sometimes characterized as a “neo-Soviet backlash,” Yanukovych himself acted rather as mnemonic abnegator disinterested in an active political use of the past. At the same time, the memory war continued in the parliament around alternative interpretations of World War II. The Communists and some notorious, pro-Russian politicians from the Party of Regions came up with several draft laws criminalizing fascist propaganda, the “rehabilitation of Nazism,” and the desecration of Soviet military graves and war memorials.40 Aimed against the legacy of Viktor Yushchenko’s controversial politics of rehabilitating the OUN and UPA, these legislative initiatives resonated with Moscow’s growing concern about “historical revisionism” and the “falsification of history” in its neighbourhood. Nationalists and national democrats responded with draft laws prohibiting communist ideology and criminalizing the vandalism of the graves of independence fighters. Some drafts proposed to criminalize the public denial of Communist and Nazi crimes, thus denouncing both totalitarian regimes as equally criminal, following the example of the Baltic States and Poland, among others. None of these laws were adopted by the parliament (the only exception being the aforementioned amendment of the Law on the Victory Banner), but the significance of the proliferation of draft memory laws before the Euromaidan should not be underestimated: first, it points to the internationalization of the Ukrainian discourse on the past, reflecting the growing tensions between Russian and European regimes of memory; second, it shows that the idea of legislating history and criminalizing certain statements about the past was becoming widely accepted throughout the whole spectrum of Ukrainian politics.

The De-communization Legislation of 2015 The four memory laws on de-communization adopted by the Ukrainian parliament on April 9, 2015 and signed by President Poroshenko on May 15 thus did not come as a surprise. In fact, the authors of the new legislation saw it as a new attempt to accomplish that which was not achieved  More in Koposov, Memory Laws, Memory Wars, 190–194.

40

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

113

after the Orange Revolution. Moreover, the failure to complete de-­ communization during the Yushchenko era has often been evoked as one of the main causes of the anti-Ukrainian mobilization in the east and south of the country, as well as Russian aggression. The Maidan, the annexation of Crimea and the beginning of the war in Donbas led to a patriotic mobilization and a radical shift in Ukrainian politics. The Party of Regions was marginalized and lost a significant part of its electoral base with the occupation of Crimea and Donbas, while the Communists were heavily compromised by their sympathies with Moscow. As a result of the snap parliamentary election in October 2014, a new pro-European coalition was forged consisting of the Petro Poroshenko Block, the People’s Front (led by Arseniy Yatsenyuk), Self-Reliance (the party of the mayor of Lviv Sadovyi), Yulia Tymoshenko’s Bat’kivshchyna, and the Radical Party of Oleh Lyashko. The informal successor of the Party of Regions, the Opposition Block, showed only modest results, and the Communist Party for the first time received no seats in the parliament. The four memory laws thus were easily passed by the parliamentary majority in the first reading and without any debates. They included the following acts: (1) “On Access to the Archives of Repressive Organs of the Communist Totalitarian Regime from 1917–1991;”41 (2) “On the Commemoration of [the] Victory over Nazism in World War II 1939–1945;”42 (3) “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century;”43 (4) “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propaganda of their Symbols.”44 The first two laws have been the least controversial. The first one, “On Access to the Archives of Repressive Organs of the Communist Totalitarian Regime from 1917–1991,” requires, as a long overdue transitional justice 41  Law № 316-VIII, “On Access to the Archives of Repressive Organs of the Communist Totalitarian Regime from 1917–1991,” April 9, 2015, zakon.rada.gov.ua/laws/ show/316-­19#Text, accessed August 25, 2021. 42  Law № 315-VIII, “On the Commemoration of Victory over Nazism in World War II 1939–1945,” April 12, 2015 zakon.rada.gov.ua/laws/show/315-19#Text, accessed August 25, 2021. 43  Law № 314-VIII, “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century,” April 12, 2015, zakon.rada.gov.ua/ laws/show/314-19#Text, accessed August 25, 2021. 44  Law № 317-VIII, “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propaganda of their Symbols,” from April 12, 2015, zakon.rada.gov.ua/laws/show/317-19#Text, accessed August 25, 2021.

114 

T. ZHURZHENKO

measure, free access to the former KGB archives. The second law, “On the Commemoration of [the] Victory over Nazism in World War II 1939–1945,” replaces the above discussed Law “On Commemorating the Victory in the Great Patriotic War 1941–1945” from 2000. The new law refrains from the Soviet formula of the “Great Patriotic War”; instead, it refers to the European narrative of World War II as the great tragedy of the twentieth century and to the victory over Nazism as a common achievement to which Ukraine has contributed. It also makes respect for the memory of war veterans, members of the liberation movement and victims of Nazism (in this order) a duty of the state and of the citizens of Ukraine, thus seeking to reconcile Soviet, nationalist and European approaches. The law introduces the Day of Memory and Reconciliation on May 8 (as an attempt to adjust to the European tradition) but also re-­ affirms the status of the old Soviet Day of Victory on May 9 as a national holiday. In general, the law reflects the turn in Ukrainian society away from the Soviet war myth, which had been politically instrumentalized by Russian propaganda during the 2014 crisis. The third memory law, “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century,” establishes a long list of organizations, movements, and military formations, declaring them “fighters for Ukrainian independence in the 20th century.” Most of them are known only to historians, but what matters politically is that this list rehabilitates the UPA and OUN, thus putting an end to a protracted debate. This law has been criticized for failing to mention the controversial aspects of UPA and OUN activities, and for making the struggle for independence the main aspect of Ukrainian history.45 What met with the most severe criticism was the provision of the law that “public denial of the legitimacy of the struggle for independence of Ukraine in the twentieth century is recognized as insult to the memory of the fighters for independence […], as disparagement of the Ukrainian people and is unlawful.”46 The law introduced no explicit sanctions for such denialism, but the coercive prescription of the official historical

 Koposov, Memory Laws, Memory Wars, 203.  “Law of Ukraine. On the Legal Status and Honoring the Memory of Fighters for Ukraine’s Independence in the Twentieth Century,” trans. Institute for National Remembrance (UINP), www.memory.gov.ua/laws/law-ukraine-legal-status-and-honoringmemory-fighters-ukraines-independence-twentieth-century, accessed August 25, 2021. 45 46

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

115

narrative outlawing alternative or critical voices has worried historians and human right activists in Ukraine and abroad. Finally, the fourth law, “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propaganda of their Symbols,” deems criminal both the “Communist totalitarian regime of 1917–1991 in Ukraine” and the Nazi regime. It characterizes communism and Nazism in practically identical categories as regimes “that exercised the policy of state terror characterized by numerous violations of human rights in the form of individual and mass murders, slaughters, deaths, deportations, tortures, use of forced labour and other forms of mass physical terror, persecution for ethnic, national, religious, political, class, social and other reasons, inflicting mental and physical sufferings via application of psychiatric measures for political purposes, violation of the freedom of conscience, thought, expression, press and lack of political pluralism and due to these reasons it is condemned as incompatible with the fundamental human and citizens’ rights and liberties.”47 The law thus does not differentiate between these two totalitarian regimes and between Stalinism and the late Soviet period.48 In equating Nazi and communist regimes, it follows several earlier, not so successful, legislative initiatives in the Ukrainian parliament and refers to both the Ukrainian legislation (law on the Holodomor) and to the respective resolutions of the PACE, OSCE and the European Parliament underlining the need to dismantle the heritage of the communist totalitarian regimes. This fourth law orders de-communization per se by enforcing the dismantling of remaining monuments to the leaders of the Soviet regime as well as the removal of Soviet symbols in the public space and changing Soviet-related geographic names and toponyms. Due to its practical implications, this law has had the biggest impact on the everyday life of Ukrainian citizens and has therefore caused fierce debates. The law explicitly prohibits propaganda and symbols of communist and national socialist totalitarian regimes, and introduces criminal liability, that is, restraint of liberty for a term of up to five years (up to ten years if committed in a group or by a person holding public office) for the production, 47  “Law of Ukraine. On the condemnation of the communist and national socialist (Nazi) regimes, and prohibition of propaganda of their symbols,” trans. the UINP, www.memory. gov.ua/laws/law-ukraine-condemnation-communist-and-national-socialist-nazi-regimes-­ and-prohibition-propagan, accessed August 27, 2021. 48  Koposov, Memory Laws, Memory Wars, 204.

116 

T. ZHURZHENKO

dissemination, or public use of such symbols. This law in particular has been the target of criticism inside and outside of the country. The criminalization of the public use of communist symbols, the critics argue, limits freedom of expression, imposes a narrow view of the Soviet period of Ukrainian history, and suppresses alternative narratives. The de-communization legislation raised a number of concerns, first of all about “the divisive potential of imposing such a unilateral view of history”49 in a country with significant regional differences in collective memory.50 Not only the Communists protested most loudly against the new laws; the Opposition Block (the successor of the Party of Regions) sharply criticized them in the parliament. Activists of grassroots initiatives fostering public dialogue and reconciliation were concerned of a further escalation of political tensions in a country torn by conflict. Local councils referred to budget constraints (e.g. exceeding costs for renaming streets), and local inhabitants, more concerned with economic and social issues, showed passive resistance. Even some of the pro-Ukrainian activists, while admitting that de-communization of the public space was overdue, saw a risk insofar as the new legislation could bring the Party of Regions back to power. Nonetheless, the new legislation was welcomed by pro-Ukrainian activists pushing for de-communization from below—and local authorities actually understood that the only way to cope with such “wild de-­ communization” was to give the process a legal form. In autumn 2016, an opinion poll conducted by the Sociological Group “Rating” confirmed the low popularity of the de-communization policy, especially in the east and south.51 But as Oxana Shevel observed half a year after de-communization officially started, “thus far, however, the process has not led to any sizeable protests, and parties that vocally opposed the laws have not been able to convert their stance into any actual mobilization.”52 49  Ilya Nuzov, “Transitional Justice in Ukraine: National Reconciliation or Reconsolidation of Post-Communist Trauma?” ICTJ, October 17, 2016, ictj.org/es/node/22470, accessed August 25, 2021. 50  See also Halya Coynash, “Parliament ignores public opinion on Ukraine’s history. Will the President?” Human Rights in Ukraine, khpg.org/en/index.php?id=1428876846, accessed August 25, 2021. 51  “Stavlennia do okremykh istorychnykh postatei ta protsesu dekomunizatsii v Ukraini,” Rating Group Ukraine, November 17, 2016, ratinggroup.ua/research/ukraine/ otnoshenie_k_otdelnym_istoricheskim_lichnostyam_i_processu_dekommunizacii_v_ ukraine.html, accessed August 25, 2021. 52  Shevel, “Decommunization in Post-Euromaidan Ukraine. Law and Practice,” 1.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

117

Indeed, some renamings caused local protests and heated debates, as was the case with Kirovohrad, named after Soviet leader Sergei Kirov and re-named Kropyvnytsky in the course of de-communization to honour one of the fathers of Ukrainian national theatre born in the area. While the majority of local residents opted to resuscitate the city’s historical name of Yelisavetgrad, this solution was vetoed by the Institute for National Remembrance due to its imperial Russian connotations. The case of Dnipropetrovsk (named after the Ukrainian Bolshevik Petrovskyi) was much less controversial, as the new name—Dnipro—was not politically polarizing. Heated discussions emerged also around some Soviet monuments which had a cultural and historical value (e.g. the equestrian statue of Mykola Shchors, a Red Army commander during the Civil War in Kyiv, or a gigantic monument of the Bolshevik leader Artyom by famous Soviet sculptor Ivan Kavaleridze in the ‘Donetsk Oblast’). The local elites in Eastern and South Ukraine sometimes instrumentalized controversial cases to stir discontent with Kyiv. Such was the case with the Soviet military hero Marshal Georgy Zhukov, whose monuments (and the avenues named after him) in Kyiv and Odesa became a subject of protracted legal conflict. But Marshal Zhukov, a military figure rather than a Soviet political leader, was one of only a few contested cases, a result of the fact that the “hot” memory of World War II seemed to possess more significant potential for mobilization than the “cold” memory of the Bolshevik Revolution. De-communization legislation left local authorities little opportunity for sabotage as their responsibility and the deadlines for removing Soviet symbols were determined by law. The pressure from grassroots de-communization activists (often joined by radical nationalists) played a role, too. Therefore, despite widespread criticism in the media regarding de-communization, and a general lack of enthusiasm for such efforts on the part of the majority of Ukrainians, the de-communized symbolic landscape soon became a new status quo. After a group of deputies (mainly from the Oppositional Block) had appealed to the Constitutional Court, the latter confirmed the constitutionality of the Law “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propaganda of their Symbols” in June 2019.53 53  See Andrii Nekoliak, “Ukraine’s Constitutional Court, Historical Narrative-Making, and the Law,” MELA (Memory Laws in European and Comparative Perspective), November 30, 2020, melaproject.org/blog, accessed August 25, 2021, for an analysis of the verdict.

118 

T. ZHURZHENKO

Dilemmas of Legislating History in Times of War In this section, I will discuss the public and academic reception of the de-­ communization legislation and the political and intellectual debates around it in the following contexts: (a) nation building, “decolonization” and Europeanization; (b) freedom of speech vs. mnemonic security; (c) transitional justice. (a) The most obvious dimension of the debate around the de-­ communization laws concerns the use of legislative instruments for forming the narrative of national history and for re-shaping national identity in the context of the ongoing Ukrainian-Russian conflict. The 2015 legislation continues the already existing tradition of legislating history (the 2006 law on the Holodomor being the most prominent example of the pre-Maidan era), but it is far more ambitious and comprehensive. It positions the official narrative of Ukraine’s twentieth century as a “national liberation struggle,” creating a canon of “fighters for national independence,” that reduces the Soviet period of Ukrainian history to “crimes of a totalitarian regime” and replaces the Soviet narrative of the Great Patriotic War with a European one. Some observers see this radical re-­ definition of Ukraine’s “national memory” as connected to the sharp political shifts in Ukraine and the region since 2014, such as the “rapid consolidation of Ukrainian national identity,” and “the end of Ukrainian government’s geopolitical and cultural-historical oscillation between Russia and the West.”54 Indeed, the perception of Russia as the eternal threat to Ukraine’s independence, and its role of the constituting “Other” for Ukrainian national identity, have been reinforced by recent events. Particularly in the context of the centenary of the 1917–1921 revolution in Ukraine, the national liberation aspirations of the Ukrainians and their attempt to create their own state are again, as they were 100 years ago, depicted as being thwarted by Russian aggression. Once again, Ukraine is presented as facing the threat of losing its independence to Russia. Volodymyr Viatrovych, the director of the Institute for National Remembrance in 2014–2019 and one of the main architects of de-communization, went even further The perspectives of the decommunization legislation under the new political leadership (President Volodymyr Zelenskyi and the parliament dominated by his “Servant of the People People” party) are addressed in the conclusion. 54  Oxana Shevel, “The Battle for Historical Memory in Post-Maidan Ukraine,” Current History 115.783 (2016): 258.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

119

speaking about Ukraine’s “hundred-year war for independence.”55 The laws of 2015 are thus supposed to undo the legacy of the Soviet regime in Ukraine which is seen as a form of Russian dominance. One can agree with Andriy Portnov that the idea of the new legislation is to draw a new symbolic dividing line between post-Maidan Ukraine and Putin’s Russia.56 This division, according to Portnov, is supposed to be constructed “not according to language or religious identification but alongside the attitude to the Soviet past: largely glorified in Russia and condemned in Ukraine.” Such an approach could be characterized as “civic nationalism” if it had not been combined with legislation celebrating the ethno-linguistic and cultural core of the nation (such as the Law “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century”). Formally, de-­ Russification is not the aim of the de-communization legislation, and yet in practice these notions often merge, as Russia’s current hybrid aggression against Ukraine serves to legitimize the nationalist narrative of Ukrainian history as a history of recurrent Russian aggression and occupation. Combined with a policy aimed at limiting the access of Russian cultural products to the Ukrainian market, language quotas in the media and, most recently, a political campaign aimed at creating a national church independent from the Moscow Patriarchy, the legislation on de-­ communization has often been seen in Ukraine as part of a greater “decolonization” agenda. The discourse on Ukraine as a “post-colonial nation” has become rather popular in Ukrainian public debates. In its common interpretation, post-coloniality is associated with collective victimhood, ignorance about one’s own history and dominance of the colonial mind-set imposed from outside.57 The aim of the de-communization legislation is thus seen as overcoming the post-colonial status. However, some prominent Ukrainian intellectuals such as Mykola Riabchuk criticize the de-communization 55  “Institute of National Remembrance is starting an information campaign for the 100th anniversary of the Ukrainian Revolution 1917–1921,” official website of the Cabinet of Ministers of Ukraine, March 13, 2017, www.kmu.gov.ua/control/uk/publish/article?art_ id=249805754&cat_id=244276429, accessed August 25, 2021. 56   Andriy Portnov, “’De-Communisation’ and Legislating History in Post-Maidan Ukraine,” Aspen Review 4 (2017). 57  David Marples, “The Destruction of ‘Colonial Remnants’ in Ukraine,” E-international Relations, July 14, 2017, www.e-ir.info/2017/07/14/the-destruction-of-colonial-remnantsin-ukraine/, accessed August 25, 2021.

120 

T. ZHURZHENKO

laws for targeting the “dead” communist ideology instead of addressing the still existing cultural, political, and economic colonial dependence from Russia.58 They see the Ukrainian political elites (including the authors of the de-communization legislation) as main bearers of the colonial mind-set. Journalists, public intellectuals, as well as some scholars have made an attempt to interpret Ukraine’s de-communization laws from a post-­ colonial perspective.59 Yurchuk introduces the concept of “reclaiming the past,” or regaining control over a narrative of national history that during the Russian and Soviet rule was imposed by the imperial centre.60 She sees a dynamic tension between the two approaches: “reclaiming the past” and “coping with a difficult past,” and writes, “as a post-colonial state, Ukraine needs to produce its own history, distanced from the Soviet master narrative; as a (potentially) European state it is expected to be self-reflexive and self-critical about its past. The post-colonial agenda of reclaiming the past may be questioned on the grounds that glorifying national heroes and silencing or even denying their involvement in perpetrating atrocities and human rights violations runs counter to the proclaimed adherence to European values.”61 Another aspect of the public debate on de-communization concerns the consequences of externalizing the Soviet past from the Ukrainian historical narrative. For some left-minded critics of de-communization, the Soviet symbols banned by the new legislation refer to the positive aspects of Soviet economic and cultural modernisation and, more importantly, to the idea of economic and social justice which gained new actuality with the rise of post-Soviet oligarchic capitalism. In their eyes, the total ban on Soviet symbols, regardless of the context and purpose of their use, impoverishes Ukrainian history. It excludes not only Russian Bolshevism but also Ukraine’s own socialist traditions from public space and intellectual 58  Mykola Riabchuk, “Zamist‘ dekolonizatsii vlada voiuie z komunoiu yaka i tak mertva,” Zbruc, March 14, 2018, zbruc.eu/node/77618, accessed August 25, 2021. 59  Yulia Yurchuk, “Reclaiming the Past, Confronting the Past: OUN-UPA Memory Politics and Nation-Building in Ukraine (1991–2016),” War and Memory in Russia, Ukraine, and Belarus, eds. Julie Fedor, Markku Kangaspuro, Jussi Lassila, Tatiana Zhurzhenko (Cham: Palgrave Macmillan, 2017): 107–137; Barbara Törnquist-Plewa and Yuliya Yurchuk, “Memory politics in contemporary Ukraine: Reflections from the postcolonial perspective,” Memory Studies (2017), https://doi.org/10.1177/1750698017727806. 60  Yurchuk, “Reclaiming the Past, Confronting the Past.” 61  Yurchuk, “Reclaiming the Past, Confronting the Past,” 112.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

121

debate. By denying the early Ukrainian SSR and Ukrainian Communists their role in nation building, the politics of de-communization reduces the Soviet history of Ukraine to a narrative of national victimhood.62 Finally, the authors of the de-communization legislation, and the Institute of National Remembrance in particular, underlined that the laws are a necessary instrument for achieving the country’s “Europeanization”. As Lina Klymenko argues, by establishing the new narrative of the past through “decommunization” laws, the Ukrainian leadership seeks not only to differentiate between Ukrainian and Russian remembrance cultures but also to demonstrate a commonality between Ukrainian and European values, thus reinforcing Ukraine’s belonging to European civilization.63 In this sense, legislating history is about the future rather than the past; it is about Ukraine’s “return” to Europe. References to EU legislation and the EU discourse on the condemnation of communist totalitarian regimes thus serve to inscribe Ukraine into European political culture. However, as noted by some critics, “the spirit” of the new legislation does not always follow the “letter”: the approach to history they promote is reminiscent of the Soviet one, with one single correct interpretation decreed by the state that results in a highly ideological black-and-­white picture.64 The laws do not reflect, in other words, “European standards of memorialization policies whereby freedom of expression is upheld [… and] honouring civilian victims of political violence is a central priority.”65 (b) Being involved in a military conflict on its own territory, Ukraine has struggled to preserve both democratic freedoms and national sovereignty. Therefore, another important context of the debate on de-communization legislation concerns the tension between two political priorities: democracy, freedom of speech and human rights, on the one hand, and national security, and more specifically, “mnemonic security,” on the other. Since spring 2014, there have been concerns inside the country and among its Western partners that human rights and freedom of media might be sacrificed under the pretext of counteracting Russia’s information war. The most vocal criticism of the de-communization laws in Ukraine thus came from  More in Zhurzhenko, “The making and unmaking of revolutions.”  Lina Klymenko, “Cutting the Umbilical Cord: A Narrative of the National Past and Future in Ukrainian De-Communization Policy,” Law and Memory: Towards Legal Governance of History, eds. Uladzislau Belavusau, and Aleksandra Gliszczynˊ ska-Grabias (Cambridge: Cambridge UP, 2017): 310–328. 64  Shevel, “The Battle for Historical Memory in Post-Maidan Ukraine,” 263. 65  Ibid. 62 63

122 

T. ZHURZHENKO

international organizations monitoring the freedom of public expression and the rule of law (e.g. the OSCE or the Venice Commission) as well as international and Ukrainian scholars concerned with the freedom of academic research. An Open Letter signed by a number of well-known historians and other scholars and addressed to President Poroshenko expressed concern with imposing a monopoly of one single historical narrative, and with the potential threat of criminalizing critical opinions.66 The letter appealed to the President to veto the legislation passed by Parliament. Some professional historians in Ukraine have long been outspokenly critical towards the legislation of history (e.g. Georgi Kasianov), seeing it as manipulation of the past for political purposes and as a means to curtail the freedom of research. The de-­communization legislation is, from this perspective, a further step in the wrong direction. In general, the laws of 2015 have divided the professional community of historians into two camps: the “statists” believe that the Ukrainian state should take a proactive position in establishing a national narrative, promoting it in society, and defending it against neighbouring countries. In contrast, the “liberals” give priority to the freedom of academic research and fear potential censorship. The central concern of the first group is national security, especially relevant in times of crisis and external aggression. According to Volodymyr Viatrovych, de-communization is a matter of security politics because Ukraine’s independence and European identity are threatened by bearers of Soviet values. In his eyes, “it is precisely on this island of ‘Sovietness,’ which for historic reasons remained strongest in the Donbas and Crimea, that Putin’s aggression against Ukraine is taking place. The bearers of Soviet values (…) are today the main source of manpower for the terrorist bands of the so-called DNR and LNR.”67 The de-communization legislation in Ukraine is thus a prominent example of the securitization of cultural policy,68 including historical 66  David Marples, “Open Letter from Scholars and Experts on Ukraine Re. the So-Called ‘Anti Communist Law’,” Krytyka, March 2015, https://krytyka.com/en/articles/open-­ letter-­scholars-and-experts-ukraine-re-so-called-anti-communist-law, accessed August 25, 2021. 67  Volodymyr Viatrovych, “’Decommunization’ and Academic Discussion,” Krytyka, April 2015, krytyka.com/en/articles/decommunization-and-academic-discussion, accessed August 25, 2021. 68  Andrei Richter, “Cultural security of Ukraine in times of conflict: Legal aspects,” Handbook of Cultural Security, ed. Yasushi Watanabe (Cheltenham, UK: Edward Elgar Publishing, 2018): 461–486.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

123

memory and national identity. The tendency towards the securitization of historical memory, or understanding the control over the national historical narrative as a matter of national sovereignty, is not new in Eastern Europe, torn as it has been by mnemonic conflicts (e.g. the Baltic-Russian and Polish-Russian memory wars). Departing from the concept of ontological security used in International Relations, some scholars from the region69 have developed the notion of “mnemonic security”. From this perspective, Maria Mälksoo argues, “Ukraine’s de-communization laws raise fundamental questions about the legitimate defence of democracy in times of political transformation and war.”70 She asks further if militant democracy is “a more acceptable solution in the context of ongoing nation building, regime change and active conflict (including a continued ‘memory war’) as compared to consolidated democracies during more ‘normal’ times.” The question makes sense given that denying the historical and political legitimacy of the Ukrainian state in its current borders was the key element of the Moscow’s anti-Ukrainian propaganda at the peak of the conflict in 2014. The opponents of the “security argument,” from their side, argue that the threats to the Ukrainian state come not only from the outside; some of them are home-made, such as the divisive effects of de-communization on Ukrainian society and the risk of sliding into authoritarianism by curtailing freedoms. (c) The de-communization legislation in Ukraine can also be discussed from the perspective of transitional justice. Transitional justice refers to a range of measures that societies transforming themselves from authoritarianism to democracy or moving from a violent conflict towards peace undertake to reckon with legacies of systematic or widespread violations of human rights.71 In the narrow sense, transitional justice “is used as a synonym for criminal prosecution of authoritarian rulers (and their agents) 69  Maria Mälksoo, “‘Memory Must be Defended’: Beyond the Politics of Mnemonical Security,” Security Dialogue 46.3: 221–237; Dovilė Budrytė, “Memory, War, and Mnemonical In/Security: A Comparison of Lithuania and Ukraine,” Crisis and Change in Post-Cold War Global Politics. Ukraine in a Comparative Perspective, eds. Erica Resende, Dovilė Budrytė and Didem Buhari-Gulmez (Cham: Palgrave Macmillan, 2018): 155–180. 70  Maria Mälksoo, “Decommunization in Times of War: Ukraine’s Militant Democracy Problem,” Verfassungsblog, January 9, 2018, verfassungsblog.de/decommunization-in-­ times-of-war-ukraines-militant-democracy-problem/, accessed August 25, 2021. 71  “What is Transitional Justice?” International Center for Transitional Justice, www.ictj. org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf.

124 

T. ZHURZHENKO

for alleged mass atrocities.”72 In practice, however, transitional justice goes far beyond judicial measures and includes such approaches as truth commissions, reparation for victims, reform of public security and restoring trust in state institutions as well as commemorative programs. The contemporary understanding of transitional justice is bound to a forward-­ looking perspective, meaning that its main aim is the prevention of human rights abuses in the future. Lavinia Stan, an expert on post-communist transitional justice, argues that former Soviet republics, with the only exception being the Baltic States, “have engaged in only limited reckoning with the mass human rights abuses perpetrated by the communist regime in 1917–91.”73 Among her explanations for this reality are an incomplete democratic transition marked by a high level of corruption and disregard of the rule of law, the continuing political influence of former Communist Party officials and KGB officers and agents, the weakness of civil society, and the lack of international pressure. In addition, she notes that the more time has passed after mass human rights abuses the more difficult it is to implement transitional justice.74 Although not part of legislation on historical memory per se, transitional justice, similarly deals with a problematic past by means of law and is meant to transform the historical consciousness of post-authoritarian and post-conflict societies. In the post-communist context, transitional justice measures have often been merged with (and sometimes substituted by) the instrumentalization of memory for the purpose of nation building. While post-communist nations were defined as collective victims of the Soviet regime, little was done to bring perpetrators to justice. Ukraine’s record in transitional justice has so far not been very impressive, albeit better than in other post-Soviet republics. Until 2014, emphasis was made on the commemoration of victims (e.g. the 2006 law on the Holodomor), while criminal justice towards perpetrators was only symbolic (see the Decision of the Kyiv Court of Appeals 2010, mentioned above). The Law “On the Rehabilitation of the Victims of Political

72  Paola Cesarini, “Transitional Justice,” The SAGE Handbook on Comparative Politics, eds. Todd Landman and Neil Robinson (London: Sage Publications, 2009): 498. 73   Lavinia Stan, “Limited Reckoning in the Former Soviet Union: Some Possible Explanations,” Transitional Justice in the Former Soviet Union. Reviewing the Past, Looking toward the Future, eds. Cynthia Horne and Lavinia Stan (Cambridge: Cambridge UP, 2018): 19. 74  Stan, “Limited Reckoning in the Former Soviet Union,” 35–40.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

125

Repressions”75 was selective and material compensation provided by it was rather limited. Not a single official of the Soviet regime was prosecuted for abusing human rights, and many former high officials of the Communist Party of the Soviet Union and of the Ukrainian KGB continued to play key roles in Ukrainian politics. In this context, one could argue that the Maidan protests and the subsequent fall of the Yanukovych government gave the impetus to the most ambitious transitional justice measures thus far. These measures concern some aspects of the de-communization legislation, and in particular, the law providing public access to former KGB archives. By addressing the “fighters for independence” (many of whom fell victim to Soviet repressions), the amended rehabilitation law is more inclusive (even if still modest in terms of material reparations). Removing Soviet symbols from the public space and banning Soviet propaganda, albeit politically controversial, goes in the same direction. Moreover, the “authoritarian moment” of the Yanukovych regime, and its use of brutal violence against the protesters (including the Maidan massacre on February 20, 2014), mobilized Ukrainian civil society to lobby for radical reforms of public security and the judiciary. In 2014, two of the laws that were among the measures that the Ukrainian parliament took in response to these demands were the Law “On Restoring Trust in the Judiciary”76 and the Law “On Government Cleansing” (also called Lustration Law).77 This first law reflected a popular demand to dismiss judges involved in the unlawful prosecution of the Maidan protesters. The second regarded the removal from office of civil servants “who made decisions, took actions or inaction (and/or contributed to their taking) facilitating power usurpation by the President of Ukraine Viktor Yanukovych” or who violated human rights and freedoms. Additionally, reflecting the issue of disloyalty on the part of the state apparatus in the face of Russian aggression, the lustration law also imposed a ban on public servants who cooperated as secret informers of other countries, undermined national security or called publicly for the breach of Ukraine’s territorial integrity and sovereignty.

 See footnote 25.  Law № 1188-VII from April 8, 2014, “On Restoring Trust in the Judiciary in Ukraine,” zakon.rada.gov.ua/laws/show/1188-18#Text, accessed August 25, 2021. 77  Law № 1682-VII from September 16, 2014 “On Government Cleansing,” zakon.rada. gov.ua/laws/show/1682-18#Text, accessed August 25, 2021. 75 76

126 

T. ZHURZHENKO

Moreover, public servants who worked in senior positions in the Soviet Communist Party, as full-time employees or covert agents of the Soviet KGB, became a subject of lustration. The long overdue post-communist lustration thus arrived in Ukraine in one package, with measures meant to restore justice and trust in public institutions after the fall of the Yanukovych regime, often denounced by critics as “neo-Soviet”. However, blending together in this way the responsibility for the wrongdoings of the Soviet regime and the abuses committed by the Yanukovych government obscured the goals of the new legislation on lustration.78 Another problem with both laws is that they compromise rather than implement the idea of transitional justice. Ukrainian experts and human rights activists as well as international organizations such as the Venice Commission have criticized both draft laws and proposed to make serious amendments to them in order to avoid manipulations, abuse of human rights and political pressure on the judiciary. In fact, passing both laws was a populist move resulting from the pressure of radical activists practicing “wild lustration” (de facto harassment and attacks on some public officials accused of cooperation with the Yanukovych regime). If the aims of transitional justice measures are the reform of public security and the renewal of civic trust, Ukraine is still far from achieving them. Moreover, lustration in its current form adds to the deterioration of the legal and political culture in the country. The Ukrainian case of transitional justice is especially complicated because dealing with the crimes of the communist regime has to be undertaken not in a “post-conflict” society, but in a society currently affected by a political crisis and an ongoing military conflict. Thus far, the criminal investigations into the Maidan massacre on February 20, 2014, and the Odesa tragedy on May 2, 2014, have not resulted in a triumph of justice; 78  Cf. the Venice Commission’s “Final Opinion on the Law on Government Cleansing (Lustration Law) of Ukraine” № 788/2014 from 2015, especially section C on the “Temporal Scope of the Application of the Law,” paragraphs 67–71. As mentioned, the law deals with two periods of undemocratic rule in Ukraine: the Soviet communist regime and the Yanukovych regime. With respect to the first period, the Commission stressed, “Whereas the totalitarian non-democratic nature of the pre-1991 regime in the Soviet Union is not open to question, the need to use lustration measures with respect to the representatives of this regime, almost 25 years after its fall, seems controversial.” And with respect to the second period, the Commission repeats that “applying lustration measures in respect of acts committed after the end of the totalitarian regime may only be justified in the light of exceptional historic and political conditions,” www.venice.coe.int/webforms/documents/default. aspx?pdffile=CDL-AD(2015)012-e, accessed August 25, 2021.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

127

in both cases, civil society and journalists pursued truth seeking and put pressure on state investigators. In addition, Ukraine has to deal with new injustices, war crimes, and mass violations of human rights, especially in Donbas. While civic activists do important work documenting such cases and assisting victims in protecting their rights, the question remains if a broader restoration of justice and rule of law is possible before the resolution of the military conflict. If the current priority in Ukraine is peace and reconciliation, then a truth commission might be a more appropriate instrument of transitional justice than the legislation on (Soviet) history.79 To conclude, historical justice for victims and perpetrators of communist crimes, one of the aims of de-communization legislation, seems to compete with the more urgent goals of truth-seeking, justice and reconciliation in the current Ukrainian conflict. While the legacy of the Soviet regime is one source of Ukraine’s rule of law deficit, of its politicized and corrupt judiciary and low civic trust, the legislation of history alone cannot solve these problems.

Conclusion Post-Soviet Ukraine is not an exception among the countries of Eastern Europe, a region where the legislation of historical memory since 1989 has become an instrument of nation building and reckoning with the communist past, a means of asserting the “sovereignty” of national memory, and a weapon utilized by rival elites in the ongoing culture wars. Unlike neighbouring Russia and Belarus, where history and memory have been used by authoritarian regimes for consolidating mass support, Ukraine became increasingly torn apart by mnemonic conflicts fuelled by competing interest groups which manipulated divisive historical narratives with the purpose of electoral mobilization. Pluralism and competitiveness in Ukrainian politics, combined with conflicting geopolitical imaginaries, encouraged the weaponization of the mnemonic legislation by fractured political elites. While some legislative initiatives were meant, according to their authors, to restore the Ukrainian collective memory supressed by the communist regime and to facilitate the country’s European integration, others aimed at preserving continuity with the Soviet past and the “spiritual unity” with Russia. With political polarization growing, prohibitive 79  Ilya Nuzov, “The Dynamics of Collective Memory in the Ukraine Crisis: A Transitional Justice Perspective,” International Journal of Transitional Justice 11 (2017): 132–153.

128 

T. ZHURZHENKO

memory laws criminalizing “wrong” historical narratives came to be seen as an acceptable instrument of politics. Yet the same political pluralism and the rotation of elites prevented Ukraine from a consistent and sustainable mnemonic law-making. The Maidan revolution of 2013–2014, the military conflict in Donbas and Russian aggression contributed to the de-legitimation of the Soviet-­ nostalgic narrative, thus empowering mnemonic warriors who sought to reckon with the Soviet past and provided the legislation of historical memory with the additional argument of national security. The “memory laws” adopted in spring 2015 were seen by their initiators as long overdue measures meant to overcome Ukraine’s Soviet legacy and thus facilitate the country’s European integration. Presented as a part of the ambitious reform agenda aimed at Ukraine’s modernization, the “memory laws” were, however, perceived by many critics as a symbolic substitute for real reforms, obscuring anti-corruption and de-oligarchization with nationalizing politics and fighting phantoms of the Soviet past. The opponents of “de-communization” used arguments often employed against “memory laws” worldwide:80 first, they argued that the legislation of historical memory violates freedom of speech; second, that it imposes a single official historical narrative (reminiscent of the Soviet era) and thus limits freedom of research; and third, that it fosters a narrow, particularistic politics which excludes significant groups of the Ukrainian population (e.g. ethnic minorities), and thus reinforces the polarisation of Ukrainian society. The debate, however, did not result in any amendments to the de-­ communization laws (e.g. removing criminal liability for the public use of Soviet symbols) as it was proposed by moderate critics. Half a decade since the de-communization laws have been adopted, their most significant effect has been a rather consequential cleansing of Ukraine’s cultural landscape of the Soviet symbolic legacy (monuments and toponyms). While some protracted conflicts took place on the local level around such historical personalities as Soviet Marshal Georgy Zhukov (see above), they remained on the periphery of the country’s political life. In general, however, the outcome of the de-communization legislation has been controversial. The much criticized provision of the law “On the Legal Status and Honouring of the Memory of the Fighters for the 80  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 No. 18–25 (2018), ssrn.com/abstract=3299751, accessed August 25, 2021.

5  LEGISLATING HISTORICAL MEMORY IN POST-SOVIET UKRAINE 

129

Independence of Ukraine in the 20th Century,” which stipulates the “public denial of the legitimacy of the struggle for independence of Ukraine in the twentieth century” as “unlawful,” has remained declarative so far and has had no repercussions for academic freedom and historical debate (although some historians would argue that the very fact of a single official narrative combined with the potential threat of violence from radical nationalist groups does limit academic freedom). A more worrying signal is that there have been criminal cases regarding the “propaganda of communism” that have resulted in real, albeit suspended, sentences. On the positive side, and not without some historical irony, the legislation and the debates around de-communization stimulated the re-discovery and a new interpretation of Ukraine’s Soviet modernist art and architecture by a new generation of artists and cultural activists who seek to integrate Soviet Ukrainian cultural heritage into the national canon. An uncontroversial and positive result of the de-communization legislation is the opening of the archives of Soviet state security agencies and their re-organization into a new archival institution under the auspices of the Institute for National Remembrance. The long-term outcomes of the de-communization legislation are as open as the future of Ukraine. The ongoing military conflict and the political polarization within the country certainly make it more difficult to sustain pluralism when it comes to memory politics, just as it is more difficult to transform the critical attitude to the Soviet past into a new political culture based on democratic and liberal values. The last presidential and parliamentary elections seem to indicate a retreat of the most notorious mnemonic warriors of the Poroshenko era and a more relaxed attitude of the new leadership to the historical past. The new head of the Institute for National Remembrance has declared openness for dialogue and a more inclusive approach based on consultations with local communities.81 Volodymyr Zelenskyi, despite owing much of his electoral success to the role of a history teacher he played in the “Servant of the People” television series, has shown little interest in issues of historical memory so far. The populism that brought him to power is quite different from its Polish or Hungarian versions, as it does not draw on nationalism, “traditional values,” and historical traumas. (All this was reserved for Poroshenko and his 81  See Andrii Nekoliak, “Towards Liberal Memory Politics? Discussing Recent Changes at Ukraine’s Memory Institute,” Cultures of History Forum, January 16, 2020, https://doi. org/10.25626/0107.

130 

T. ZHURZHENKO

“European Solidarity” party, now in opposition). Nor is Zelenskyi a neo-­ Soviet nostalgist, seeking to restore the pre-Maidan status quo—a mission that the opposition from the pro-Russian side is in fact pursuing. That there has been no major backlash regarding de-communization, nor has there been a new round of memory wars thus far, has to do with the fact that President Zelenskyi—a “mnemonic abnegator” according to Bernhard and Kubik—still has a solid majority in the parliament.82 Changes to this fragile political constellation could encourage mnemonic warriors on both margins of the political spectrum to once again use historical legislation as an instrument of politics.

82  Michael Bernhard and Jan Kubik, eds., Twenty Years After Communism (Oxford: Oxford UP, 2014).

Open Access  This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/ by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made. The images or other third party material in this chapter are included in the chapter’s Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter’s Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

CHAPTER 6

Holocaust Remembrance, the Cult of the War, and Memory Laws in Putin’s Russia Nikolay Koposov

Acts that regulate collective representations of the past and commemorative practices have recently attracted a lot of scholarly attention due to their rise all across Europe and their increasingly politicized character.1 Alongside Poland, Ukraine, and Turkey, Russia’s case justifiably figures as 1  Uladzislau Belavusau and Aleksandra Gliszczynska-Grabias, “The Remarkable Rise of ‘Law and Historical Memory’ in Europe: Theorizing Trends and Prospects in Recent Literature,” Journal of Law and Society 47.2 (2020): 325-38; Antoon De Baets, “Laws Governing the Historian’s Free Expression,” The Palgrave Handbook of State-Sponsored History after 1945, eds. Berber Bevernage and Nico Wouters (London: Palgrave Macmillan, 2018) 39-67; Law and Memory: Towards Legal Governance of History, eds. Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias (Cambridge: Cambridge UP, 2017); Marc Olivier Baruch, Des lois indignes? Les Historiens, la politique et le droit (Paris: Talandier, 2013); Stiina Löytömäki, Law and the Politics of Memory: Confronting the Past (London: Routledge, 2014); Emanuela Fronza, Memory and Punishment: Historical Denialism, Free Speech and the Limits of Criminal Law (The Hague: Asser Press, 2018); Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge: Cambridge UP, 2017).

N. Koposov (*) Department of Russian and East Asian Languages and Cultures, School of History and Sociology, Emory University/Georgia Institute of Technology, Atlanta, GA, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_6

131

132 

N. KOPOSOV

an example of using law for purposes of manipulative history politics. This populist politics aims at promoting national narratives rather than the cosmopolitan memory of the Holocaust, which is the main goal of West European memory laws. The 2014 Russian law, which forbids “disseminating knowingly false information about the activities of the USSR during the Second World War,” is an extreme example of such politics.2 Instead of protecting the memory of the victims of state-sponsored violence, this act protects the reputation of one of the most violent regimes in history. This chapter examines the history of the legislation of memory in post-communist Russia in the context of the conflict between the “cosmopolitan” victim-centered memory of the Holocaust3 and the Soviet/ Russian war myth. History was of central importance to Soviet ideology. However, the USSR had no special laws to prohibit statements about the past or give an official assessment of historical events. The official conception of history was formulated in Communist Party documents, and any deviation from it could be punished on the basis of articles 70 and 191.1 of Soviet Russia’s Criminal Code, which forbade “anti-Soviet propaganda and agitation” and “the dissemination of knowingly false and calumnious information” about the Soviet system.4 Heretical claims about history could be easily subsumed under these notions. 2  Other examples include Article 301 of the Turkish Criminal Code (first introduced in 2005), which forbids insults to the Turkish state and is typically used against those who call the extermination of the Armenians in the Ottoman Empire genocide; the January 2018 Polish law (partly repealed, in response to international protests, in June of the same year), which initially criminalized accusations against the Polish nation of being co-responsible for the extermination of Polish Jews; and the April 2015 Ukrainian “decommunization laws,” which banned disseminating communist literature and insulting the memory of the “fighters for Ukraine’s independence,” some of whom collaborated with the Nazis and were involved in the Holocaust (the law, however, does not foresee any penalty for violating the latter ban). In addition, the Czech Republic, Hungary, Lithuania, and Latvia have memory laws that whitewash their national narratives and silence the participation of the local populations in the extermination of the Jews. See Koposov, Memory Laws, Memory Wars, and his “Populism and Memory: Legislation of the Past in Poland, Ukraine, and Russia” (forthcoming in East European Politics and Society). 3  Elazar Barkan, The Guilt of Nations: Restitution and Negotiating Historical Injustices (New York, London: W.W. Norton, 2000); Daniel Levy, and Nathan Sznaider, The Holocaust and Memory in the Global Age (Philadelphia: Temple UP, 2006). 4  Ugolovnyi kodeks RSFSR, October 27, 1960, articles 70 and 190.1; Ukaz Prezidiuma Verkhovnogo Soveta RSFSR “O vneseniyi dopolneniya v Ugolovnyi Kodeks,” September 16, 1966.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

133

Battles over the past were an essential aspect of Russian politics in the late 1980s and early 1990s. In a sense, Mikhail Gorbachev’s perestroika was a revolt of the suppressed counter-memories of various social, national, ethnic, and religious groups against the Soviet master narrative. The notion of legislating on issues of the past emerged in Russia (and elsewhere in Eastern Europe) at the turn of the 1990s in the context of those battles and, more broadly, of the de-communization process. Governmental declarations and legal acts were adopted to codify the new view of history, in line with the gradual shift of political power from the Communist Party organs to governmental institutions. These documents included the November 1989 resolution of the USSR Supreme Soviet that declared Stalin’s deportations of repressed peoples “illegal and criminal”;5 the December 1989 resolution of the Congress of People’s Deputies of the USSR that condemned the “secret protocols” of the 1939 Soviet-Nazi non-aggression pact;6 the April 1991 Law of the Russian Federation On the Rehabilitation of Repressed Peoples, which in Article 2 characterized Stalin’s deportations of entire peoples as acts of genocide;7 and the October 1991 Law of the Russian Federation On the Rehabilitation of Victims of Political Repressions, which condemned Stalinism as a “totalitarian state.”8 Russian memory laws and bills of the 1990s reflected the turbulent political climate, characterized by harsh conflicts between President Boris Yeltsin and his liberal reformers, on the one hand, and the communist and nationalist opposition, on the other. Several Russian enactments (such as the 1995 statute “On Perpetuating the Victory [sic!] of the Soviet People in the Great Patriotic War of 1941-1945”)9 gave the force of law to the old Soviet-style cult of this war, despite the fact that it was by no means as central for Yeltsin as it had been for his predecessors and was to be for his successor. At the same time, in response to the growing “red-brown” 5  Deklaratsiya Verkhovnogo Soveta SSSR, “O priznanii nezakonnymi i prestupnymi repressivnykh aktov protiv narodov, podvergshikhsya nasil’stvennomu pereseleniyu, i obespecheniyi ikh prav,” November 14, 1989. 6  Postanovleniye Syezda narodnykh deputatov SSSR, “O politicheskoy i pravovoy otsenke sovetsko-germanskogo dogovora o nenapadenii ot 1939 goda,” December 24, 1989. 7  Zakon RSFSR no. 1107-I, “O reabilitatsii repressirovannykh narodov,” April 26, 1991. 8  Zakon RSFSRN no. 1761-1, “O reabilitatsii zhertv politicheskikh repressiy,” October 18, 1991. 9  Federal’nyi zakon no. 80-FZ, “Ob uvekovechenii Pobedy sovetskogo naroda v Velikoy Otechestvennoy voyne 1941-1945 godov,” May 19, 1995.

134 

N. KOPOSOV

danger, there emerged the idea of passing some kind of “anti-fascist” law, which would also counter attempts to spread neo-Stalinism. This idea harkens back to the mid-1990s, when a group of democratic politicians and activists supported by the Moscow Anti-Fascist Center proposed several draft laws modeled after the 1990 Gayssot Act, which prohibited Holocaust denial in France. However, the Russian Parliament, dominated as it was by communists and nationalists, blocked all those initiatives, the only outcome of which was the ban on fascist propaganda in the July 2002 law On Countering Extremist Activities (articles 1.1, 1.2, and 1.3) and the ban on the display of fascist symbols in the December 2001 Code of Administrative Offenses (Article 20.3).10 Russian legislators returned to the idea of criminalizing certain statements about the past in a completely different political context in 2007. With the emergence of Vladimir Putin’s authoritarian regime, the politics of memory in Russia took a different turn. Instead of blaming the communist past, using the notion of Russia’s cultural heritage to stimulate “cultural patriotism” and counter-balancing the negative assessment of the Soviet system (which were the main components of Yeltsin’s history politics), the new regime began promoting the cult of the Great Patriotic War, which has become the foundational myth of post-Soviet Russia.11 This cult allowed for the whitewashing of Soviet history, including Stalin’s repressions, whose memory has been marginalized by the heroic war myth. The cult of the war includes, as one of its main components, the notion of the Yalta post-war political order, which legitimizes Putin’s neo-­ imperial ambitions and simultaneously makes a majority of East European countries reject the “new Russian ideology.” Since the 2000s, the memory wars between Russia and her former East European satellites typically deploy around interpretations of the war. The national populists’ coming to power in Ukraine and Poland in 2005, as a result of the Ukrainian Orange Revolution and Poland’s Law and Justice (PiS) Party’s electoral victory, further aggravated the international climate in Eastern Europe and led to the escalation of the memory wars in the region.12 The 2007 Russo-Estonian conflict that followed the removal of the memorial to Soviet soldiers from the center of Tallinn and its relocation to  Koposov. Memory Laws, Memory Wars, 236-37.  Pamiat’ o voine 60 let spustya: Germaniya, Rossiya, Yevropa, a special issue of Neprikosnovennyi zapas 2-3 (2005) and Koposov, Memory Laws, Memory Wars, 247-59. 12  Koposov, “Populism and Memory.” 10 11

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

135

a war cemetery was a typical manifestation of East European memory wars.13 One of its results was to popularize the notion of protecting the memory of Soviet soldiers killed during World War II.14 The confrontation with the West after the 2008 Russo-Georgian armed conflict triggered a wave of nationalist mobilization in Russia. On June 3, 2008, a group of the leading East European politicians and intellectuals called for “recognition that many crimes committed in the name of Communism should be assessed as crimes against humanity […], in the same way Nazi crimes were assessed by the Nuremberg Tribunal.” This document, known as Prague Declaration on European Conscience and Communism, was very negatively received in the Kremlin: putting Stalinism and Nazism on a par undermines the Russian/Soviet cult of the Great Patriotic War. In the fall of that year, Russian lawmakers began drafting their bills to criminalize certain statements about the past. Western Holocaust denial laws were routinely invoked as a precedent for these bills. However, protecting the memory of the Jewish victims was not on Putin’s lawmakers’ agenda. During the Soviet period, the concept of the Holocaust was almost unknown in Russia. Nazi crimes were a key element of the Soviet narrative of the war, but their victims were identified as civilians rather than Jews. It was not until the end of the 1980s that the Holocaust began being recognized in Russia (and other East European countries) as a major crime against humanity. Boris Yeltsin cautiously promoted Holocaust remembrance. Its institutional foundations were laid with the organization of the Memorial Society (1989/1991), the Moscow Anti-Fascist Center (1990), the Russian Research and Educational Holocaust Center (REHC, 1992), the Russian Jewish Congress (RJC, 1996), the Interregional Holocaust Foundation (1997), and the Federation of Jewish Communities in Russia (1999). In 1998, the Museum of Jewish Heritage and the Holocaust, also known as the Holocaust Memorial Synagogue, was opened on Poklonnaya Hill in Moscow, as part of the outdoor museum dedicated to Russia’s victory in World War II (the museum also includes an Orthodox church and a 13  Maria Mälksoo, The Politics of Becoming European: A Study of Polish and Baltic Post-Cold Security Imaginaries. London (New York: Routledge, 2010) 106-16; Meike Wulf, Shadowlands: Memory and History in Post-Soviet Estonia (New York: Berghahn Books, 2016), especially 156-63. 14  Natalia Narochnitskaya, “Komu vygoden peresmotr itogov Vtoroy mirovoy?” [Who Is Interested in Revising the Outcomes of the Second World {War}?], Ria Novosti, May 8, 2007.

136 

N. KOPOSOV

mosque). But all efforts notwithstanding, the memory of the Holocaust failed to become an integral part of the Russian national memory. Under Putin, Holocaust remembrance and the notion of human rights came to be widely seen as an ideological weapon wielded by the West in its “crusade” against Russia. Silencing the Holocaust and trivializing it by comparison with the sufferings of other peoples of the former Soviet Union became the prevailing Russian version of Holocaust distortion. This is why most Russian MPs characterized as absurd the 2008 European Council Framework Decision, which obliged member states to punish Holocaust denial.15 Thus, Oleg Panteleyev from the Federation Council said, “We should not single out the tragedy of the Holocaust. […] Alongside the Holocaust, there were other atrocities and tragic events as well.”16 This logic largely determined the spirit of the new legislative initiatives about the past. Although these bills protected the memory of the Holocaust, they clearly downplayed it. They were aimed primarily at protecting the Soviet/Russian war myth as reflected in the spirit and the letter of the Nuremberg Judgment to which they referred (in contrast to most Western laws, which refer to the definition of crimes against humanity given in the August 1945 London Agreement on the creation of the Nuremberg Tribunal).17 Two drafts were simultaneously published in Russia in the spring of 2009, to coincide with the celebration of Victory Day on May 9. Both were authored by the members of United Russia, the party in power. However, there were tensions between the two teams of lawmakers, one of which included the leadership of the party, which at that time was moderately nationalist. The second team consisted of the party’s relatively peripheral members and radical nationalist activists close to Mayor of Moscow Yuri Luzhkov. Arguably, the initial plan was to pass both laws, but the Presidential Administration refused to support the radicals’ draft. 15  European Council Framework Decision 2008/913/JHA of 28 November 2008 on Combating Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law, Article 1. 16  “Chleny Soveta Federatsii prokommentirovali ratsionalnost razrabotki Evrosoyuzom zakona ob ugolovnoy onvenstvennosti za otritsanie Kholokosta,” April 23, 2007, http:// council.gov.ru/events/news/23060/. Russian MPs were interviewed in April 2007, when the Framework Decision was agreed upon. 17  Koposov. Memory Laws, Memory Wars, 124-125 and his “Lois mémorielles: Histoire et typologie,” Le Débat 201 (2018): 165-75.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

137

The core of their proposal (known as Zatulin Draft, after its main author, Konstantin Zatulin, Deputy Chair of the Duma Committee on the Affairs of the Commonwealth of Independent States) was to create a Civic Tribunal to oversee the government’s politics of the past, including counteracting “anti-Russian” history politics in the new independent states (the former Soviet republics, which the Kremlin considered then, and considers now, its legitimate sphere of influence).18 Instead, then-­President Dmitry Medvedev created a Commission Reporting to the Presidency to Counter Attempts to Falsify History to the Detriment of Russia’s Interests (it was abolished in February 2012, after two and a half years of remarkably uneventful existence).19 The other draft, which criminalized what both teams called “rehabilitation of Nazism” (i.e., deviations from the Soviet/Russian war myth), made its way to the Duma. The notion of rehabilitation of Nazism was worked out in the milieu of the pro-Russian Ukrainian politicians and Russian nationalists (including Zatulin) involved in the battles over the past in Ukraine.20 Putin’s government and the Russian media actively promoted the Soviet/Russian cult of the war in-country (and elsewhere  in Eastern Europe) with the obvious goal of presenting pro-Western Ukrainians as “Nazi accomplices” and stimulating the discord between the “two Ukraines” (the Ukrainian-speaking West and the predominantly Russian-speaking East).21 However, the draft was negatively reviewed by the government and the parliament’s own experts who found its wording obscure and imprecise. The decisive factor was a “reset” in the Russian-­ American relationship, which began after President Barak Obama’s visit to Moscow in the summer of 2009. In the fall of 2009 and in 2010, the Russian government made several symbolic gestures to demonstrate its willingness to stop memory wars in the region. In particular, in November 18  Proekt: Federal’nyi Zakon, “O protivodeystvii reabilitatsii v novykh nezavisimykh gosudarstvakh na territorii byvshego Soyuza SSR nazisma, nazistskikh prestupnikov i ikh posobnikov,” Regnum, April 20, 2009. 19  Ukaz Prezidenta Rossiyskoy Federatsii no. 549, “O Komissii pri Prezidente Rossiyskoy Federatsii po protivodeystviyu popytkam falsifikatsii istorii v ushcherb interesam Rossii,” May 15, 2009. 20  Koposov. Memory Laws, Memory Wars, 191. 21  Andrey Portnov, Uprazhneniya s istoriyey po-ukrainski [Ukrainian Exercises with History] (Moscow: OGI, Polit.ru, Memorial, 2010); Georgiy Kasyanov, Danse macabre: Golod 1932-1933 rokiv u polititsi, masoviy svidomosti ta istoriografii, 1980-ti – pochatok 2000-­ kh [Danse Macabre: The 1932-1933 Famine in {Ukrainian} Politics, Mass Consciousness, and Historiography in the 1980s – early 2000s] (Kiev: Nash Chas, 2010).

138 

N. KOPOSOV

2010, the Russian parliament formally recognized Soviet responsibility for the 1940 Katyn massacre of Polish prisoners of war.22 (This declaration could have been considered a criminal offense had the 2009 draft become law: it prohibited declaring “that actions of countries participating in the anti-Hitler coalition were criminal.”23) In the new context, criminalizing the narratives developed by the Kremlin’s opponents in memory wars became inappropriate. It was not until the rise of the democratic protest movement in Russia in the fall of 2011 and the concomitant 2012 radical conservative turn in Putin’s politics that the Russian parliament returned to the idea of passing new memory laws. The regime drastically changed its cultural policy, adopted an aggressive posture vis-à-vis the West in international relations, and passed several repressive laws that introduced censorship of the internet, restricted the freedom of meetings, and proscribed “insults to religious sentiments” and “the denial of traditional family values.”24 A law criminalizing counter-memories of the war was a logical continuation of this policy. In 2013, several bills were introduced in the Russian parliament to criminalize heretical statements about the war. One of them was authored by Oleg Mikheev, an MP from the Just Russia political party (a “Kremlin project” that pretends to represent the social-democratic political segment). A business man from Volgograd and a long-time leader of his party’s local organization, he became known due to his extravagant legislative activities (thus, he proposed to ban the “importation of Keds, ballet flats, and high-heeled shoes into Russia”),25 publicly appearing in Nazi

22  Zayavlenie Gosudarstvennoy Dumy, “O Katynskoy tragedii i yeyo zhertvakh,” December 3, 2010. 23  Proekt no. 197582-5, Federal’nyi Zako,n “O vnesenii izmeneniya v Ugolovnyi kodeks Rossiyskoi Federatsii,” May 6, 2009. 24  Federal’nyi zakon no. 136-FZ, “O vnesenii izmenenii v statiu 148 Ugolovnogo kodeksa Rossiiskoy Federatsii i otdelnye zakonodatelnye akty Rossiyskoy Federatsii v tselyakh protivodeystviya oskorbleniyu religioznykh ubezhdeniy i chuvstv grazhdan,” June 29, 2013, and Federal’nyi zakon no 135-FZ, “O vnesenii izmenenii v statiu 5 Federalnogo zakona ‘O zashchite detei ot informatsii, prichinyayushchey vred ikh zdoroviu i razvitiyu’ i otdelnye zakonodatelnye akty Rossiyskoy Federatsii v tseliakh zashchity detey ot informatsii, propagandiruyushchei otritsanie traditsionnykh semeynykh tsennostey,” June 29, 2013. 25  Alexander Podrabinek, “Russian Duma Works Miracles,” July 1, 2014, imrussia.org/ en/politics/766-russian-duma-works-miracles, accessed August 22, 2021.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

139

uniform,26 and a series of financial scandals, as a result of which he was deprived of parliamentary immunity (2013), put on the federal wanted list (2017), and arrested in absentia in 2019.27 These “persecutions,” of which he accused his opponents from United Russia, may partly explain his patriotic initiatives. One of his bills punished with up to seven (!) years of incarceration: Actions that express manifest disrespect of society and insult the memory of events, veterans, and victims of the Great Patriotic War, committed near Great Patriotic War memorials or the burial places of participants in the Great Patriotic War.28

Almost simultaneously, Mikheev authored another bill introducing criminal sanctions for desecrating Russia’s national anthem (on the model of the law prohibiting the desecration of Russia’s flag and emblem)29 and for insults to patriotic sentiments (on the model of the recently introduced ban on insults to religious sentiments).30 These initiatives coming from a dubious politician had little chances of being supported by the parliament. Two other bills had much better chances. However, there arose a competition between them. They were proposed by two groups of memory entrepreneurs supported by different houses of the Russian parliament. The first of these groups was the same team that presented the 2009 criminal draft law. It was led by Irina Yarovaya, an MP from United Russia and a co-author of some of the aforementioned repressive laws. The second group was coordinated by Boris Spiegel, a prominent Russian-Jewish activist, “oligarch,” and member of the Federation Council in 2003-2013. In 26  Ksenia Burmenko, “Sud ne nashel priznakov fotomontazha,” December 26, 2012, rg. ru/2012/12/26/reg-ufo/miheev.html, accessed August 22, 2021. 27   Tamara Shkel’, “Tretiy poshel: Olega Mikheeva lishili neprikosnovennosti,” rg. ru/2013/02/19/miheev-site.html, accessed August 22, 2021; “Eks-deputata Gosdumy Olega Mikheeva zaochno arestovali,” August 30, 2019, iz.ru/916031/2019-08-30/eks-­ deputata-­gosdumy-olega-mikheeva-zaochno-arestovali, accessed August 22, 2021; “Eks-­ deputat okazalsya nevisimkoy,” 30 August 2019, www.kommersant.ru/doc/4079147, accessed August 22, 2021. 28  Zakonoproekt no. 397255-6, “O vnesenii izmeneniy v Ugolovnyi kodeks Rossiyskoy Federatsii i Ugolovno-protsessual’nyi kodeks Rossiyskoy Federatsii,” November 29, 2013. 29  Zakonoproekt no. 386030-6, “O vnesenii izmeneniy v statiu 329 Ugolovnogo kodeksa Rossiyskoy Federatsii,” November 15, 2013. 30  Sergey Podosenov, “Oskorblenie patrioticheskikh chuvstv khotyat priravnyat’ k ekstremizmu,” November 1, 2013, iz.ru/news/559864, accessed August 22, 2021.

140 

N. KOPOSOV

June 2010, he created World Without Nazism, an international human rights movement, which proclaimed the struggle against Nazi ideology and historical revisionism as its main goal (in 2013, Spiegel had to resign from the Federation Council due to a new law that prohibited combining governmental positions with those in international NGOs; most recently, in March 2021, Spiegel was arrested for alleged bribes).31 His group included, on the one hand, several former members of Zatulin’s team and RussianUkrainian memory activists: born in Ukraine, Spiegel had a strong business and political network there. On the other hand, it also included more liberal-minded politicians such as Konstantin Dobrynin, a young lawyer from Saint Petersburg and a member of the Federation Council. Dobrynin was reportedly close to President Medvedev, who was widely, although naively, viewed as a possible liberal alternative to Putin and who did indeed (unsuccessfully) try to create a coalition for modernizing the country.32 Both groups agreed that an “anti-Nazi” law was needed to stop the “rehabilitation of Nazism” in Russia and the “near-abroad” (a code word for the former Soviet empire). They both intended to introduce criminal sanctions for these offenses. But they differed significantly in their approach to criminalizing deviations from the official cult of the war. Yarovaya’s draft protected the classical Soviet/Russian version of this cult, according to which the Soviet people was the main victim of the Nazis and the main hero of the war. In contrast, Spiegel sought to modernize this cult and make it more acceptable to international opinion by integrating the Holocaust in the traditional Soviet/Russian narrative. Although Holocaust remembrance remained peripheral to Putin’s cult of the war, it had tactical promise insofar as the Nazis had indeed found collaborators in some East European countries—a fact that those countries’ politics of memory sought to obscure.33 The Kremlin could 31  Cnaan Liphshiz, “Russian-Jewish billionaire and communal funder arrested for alleged bribes,” March 24, 2021, www.timesofisrael.com/russian-jewish-billionaire-and-communal-­­ funder-arrested-for-alleged-bribes/, accessed August 22, 2021. 32  Richard Sakwa, Putin Redux: Power and Contradiction in Contemporary Russia (New York: Routledge, 2014) 38-60, 83; Idem, The Crisis of Russian Democracy: The Dual State, Factionalism and the Medvedev Succession (New York: Cambridge UP, 2011) 347-48. 33  Bringing the Dark Past to Light: The Reception of the Holocaust in Postcommunist Europe, eds. John-Paul Himka and Joanna Beata Michlic (Lincoln, NB: Nebraska UP, 2013); Michael Shafir, “Denying the Shoah in Post-Communist Eastern Europe,” Holocaust Denial: The Politics of Perfidy, ed. Robert S. Wistrich (Boston: Walter de Gruyter, Hebrew University Magnes Press, 2012) 27-65.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

141

therefore hope to build a “coalition of memory” with the West against its East European opponents. However, the traditional Soviet war myth was of little help here, as the unanimously negative Western reaction to the 2009 draft law had clearly demonstrated. Under Medvedev’s presidency, several attempts were undertaken to use Jewish suffering to discredit the Kremlin’s opponents in memory wars in the eyes of the West. Spiegel’s draft law was one such attempt. The creation of the Historical Memory Foundation in 2008 was another sign of changes. This foundation, which closely collaborated with the REHC on the one hand, and the archives of the Russian secret services on the other, began publishing documents provided by those archives and showcasing anti-Semitic attitudes and pro-­ Nazi sympathies typical of many East European (especially Polish, Ukrainian, and Baltic) politicians and activists in the 1930s and 1940s.34 In the long run, all these attempts prepared the ground for a significant shift in Holocaust commemoration in Russia, which began in the mid-­2010s and to which we will return. In March 2013, shortly before resigning from the Federation Council, Spiegel had proposed expanding the list of offenses detailed in Article 282 of the Criminal Code by including the rehabilitation of Nazism and Holocaust denial. Had his proposal been accepted, Article 282 would have criminalized: Actions aiming at inciting hatred or enmity, rehabilitating Nazism, glorifying Nazi criminals and their accomplices, denying the Holocaust, the disparagement of the human dignity of a person or a group of persons on the basis of gender, race, nationality, language, origins, religion, or belonging to a social group, committed publicly or through the media.35

This bill was indeed similar to West European Holocaust denial laws, which consider Nazi crimes offenses of a racist nature. But Spiegel’s approach eroded the “purity” of the Russian war myth and was rejected by the Duma in the context of the nationalist hysteria that followed the annexation of Crimea in March 2014. The Yarovaya Law passed in the midst of the Ukraine crisis introduced the following article (Article 354.1) into the Criminal Code:  Koposov, Memory Laws, Memory Wars, 282-83.   Proekt no. 246065-6. Federal’nyi zakon, “O vnesenii izmeneniy v statyu 282 Ugolovnogo kodeksa Rossiyskoy Federatsii,” March 25, 2013, Article 1. 34 35

142 

N. KOPOSOV

The denial of facts established by the Judgment of the International Military Tribunal for the trial and punishment of major war criminals of European countries of the Axis, the approval of crimes established by the above-­ mentioned judgment, as well as dissemination of knowingly false information on the activities of the USSR during the Second World War, committed publicly, are punishable […] by deprivation of liberty for up to three years.36

The law provides an increase of punishment to up to five years of incarceration in the event of aggravating circumstances, including “artificial fabrication of the prosecutorial evidence” (Article 2). It also, in Article 3, introduced the following norm in the Administrative Code (Article 13.35): Public distribution of information expressing manifest disrespect toward society regarding Russia’s days of military glory and the commemorative dates associated with the defense of the Fatherland or public insults to the symbols of Russia’s military glory are punishable by a fine of up to three hundred thousand rubles […] or by correctional labor for up to one year.

Obviously, Holocaust denial has become punishable under the new enactment. However, the way in which it is referenced in the statute is indirect. The Nuremberg Tribunal did indeed establish the fact of the Holocaust, but the extermination of the Jews was then seen as one of the war’s many tragedies,37 which is quite close to its current understanding in Russia. The authors of the law were mostly concerned with unequivocally identifying Germany as the only aggressor responsible for the outbreak of the war. “Dissemination of knowingly false information” is a—arguably intentional—word-for-word borrowing from the aforementioned Soviet Criminal Code (this provision was typically used against dissidents). Criticism of any action of Stalin’s regime undertaken in 1939-1945, including the August 1939 Molotov-Ribbentrop Pact, can be easily subsumed under this intentionally broad formula. Furthermore, “artificial fabrication of the prosecutorial evidence,” which arguably means presenting “false” evidence by means of historical research, is an unmasked 36  Federal’nyi zakon no. 128-FZ, “O vnesenii izemeniy v otdel’nyie zakonodatel’nyie akty Rossiyskoy Federatsii,”May 5, 2014, Article 1.1. 37  Jeffrey C. Alexander, “On the Social Construction of Moral Universals: The Holocaust from War Crime to Trauma Drama,” European Journal of Social Theory 5.1 (2002): 6; Tony Judt, Postwar: A History of Europe Since 1945 (New York: Penguin Books, 2005) 805; Peter Novick, The Holocaust in American Life (New York: Houghton Mifflin, 2000) 29.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

143

attempt at censoring historical thought. Finally, the protection, in Article 3, of “Russia’s military glory” also goes far beyond the scope of West European anti-racist Holocaust denial legislation and shows that the real motivation behind the 2014 Russian statute was to promote the Soviet/ Russian war myth. Members of the Russian Duma claim that this particular piece of legislation is no different from Western memory laws.38 But it can be regarded as an extreme case of the East European trend toward using memory laws for the protection of national narratives, as it openly privileges the memory of an oppressive regime over that of its victims. In contrast, West European (and some East European) memory laws, notwithstanding their shortcomings, protect the memory of victims of state-sponsored crimes.39 Article 354.1 is applied very infrequently. Yet its application clearly shows that its function is to protect the Soviet/Russian war myth rather than the memory of the Holocaust, although Holocaust denialism is quite widespread in Russia. As elsewhere in Eastern Europe, it began emerging in the late 1980s following the abolition of censorship and the formation of nationalist, far-right, and neo-fascist movements. Despite the communist regimes’ systemic covert anti-Semitism, open manifestations of the latter (as well as of nationalism in general) were not allowed during the communist period. In contrast, in the 1990s, anti-Semitism became an important component of anti-democratic and anti-Western propaganda used by both communist and nationalist opposition to Boris Yeltsin’s reforms. At the early stage of its development, post-Soviet Russian nationalism was largely dependent on the West for the supply of “theoretical” approaches and propaganda materials, including the works of Holocaust deniers. The writings of Richard Harwood, Ernst Zündel, Robert Faurisson, and Jürgen Graf became known (and were sometimes translated) in Russia, and they themselves became frequent guests at the Russian deniers’ gatherings. The first writings of Russian deniers were also published in the 1990s, including those of Yury Mukhin, editor-in-chief of the newspaper Duel, Stanislav Kunyaev, editor-in-chief of the review Nash Sovremennik [Our Contemporary], and Aleksandr Prokhanov, editor-in-­ chief of the most important radical nationalist newspaper Zavtra 38  Cf. the rationale for the May 5, 2014 law annexed to its draft (filed in the State Duma archives as 197582-5). 39  Koposov. Memory Laws, Memory Wars, 305-08.

144 

N. KOPOSOV

[Tomorrow] (more recently, Prokhanov became President of the Izborsk Club, a leading far-right organization in Russia).40 Denialism and anti-­ Semitism in general were endorsed by several other far-right organizations, including Dmitry Vasilyev’s neo-fascist Pamyat’ [Memory], Vladimir Zhirinovsky’s Liberal Democratic Party of Russia (LDPR), which despite its name is a far-right party, and some leaders of the Communist Party of the Russian Federation (CPRF). In addition to deniers’ generic claims, typical of Russian deniers was (and still is) the idea that the myth of the Jewish Holocaust aims at marginalizing the real Holocaust of the twentieth century, that of the Russians.41 Russian nationalists are split in their attitudes toward the Putin regime. Some (including Mukhin) are strongly opposed to Putin, while most (including Prokhanov) switched from initially mistrusting Putin as Yeltsin’s nominee, to enthusiastically supporting him. Putin’s own United Russia party and the parties of the “official” opposition (i.e., parties that are represented in the Russian parliament) are also openly and increasingly nationalistic. It comes as no surprise that, while paying lip-service to the memory of the Holocaust, the Russian government remains indulgent toward the deniers. In May 2018, the Agora International Human Rights Group published its report Russia against History: Revision and Punishment, which speaks about “the de facto monopolization by the State of the interpretation of key historical events” and claims: Imposition of sacredness over the Soviet Union’s victory in the Great Patriotic War, punishment for the “defamation” and “profanation” of memorial dates and symbols, curbing any assessments of historical events and persons which diverge from the official ones, prohibition of scientific publications, proscription of archived documents as extremist materials, and

40  Marlene Laruelle, “The Izborsky Club, or the New Conservative Avant-Garde in Russia,”The Russian Review75.4 (2016): 626–644. 41  Pavel Polyan, Mezhdu Aushvitsem i Babyim Yarom: Razmyshleniya i issledovaniya o Katastrofe (Moscow: ROSSPEN, 2020) 471-502; S. Rock, “Russian Revisionism: Holocaust Denial and the New Nationalist Historiography,” Patterns of Prejudice 35.4 (2001): 64-76; Ilya Altman, and Semen Charnyi, “Otritsanie Kholokosta v Rossii,” February 2006, www. jewukr.org/observer/eo2003/page_show_ru.php?id=1421, accessed August 22, 2021; Ilya Altman, “Russia and the Holocaust  – whose genocide was it anyway?” Open Democracy, January27,2014,www.opendemocracy.net/od-russia/ilya-altman/russia-and-holocaust-–-whosegenocide-was-it-anyway, accessed August 22, 2021.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

145

persecution of historians – all come under the overarching tendency towards restriction of freedom of speech observed in Russia over the recent years. 42

According to the report, Article 20.3 of the Administrative Code is increasingly used to punish the display of fascist and other prohibited symbols (the number of such cases increased from 238 in 2012 to 2063 in 2017). Obviously, the authorities take any manifestations of sympathy for fascism seriously and interpret this notion broadly.43 In contrast, multiple cases of Holocaust denial typically remain unpunished, although even before the adoption of the 2014 law they could be prosecuted on the basis of Article 282 of the Criminal Code, which prohibits hate speech. Only ten items containing the word “Holocaust” are included in the list of extremist materials the dissemination of which is forbidden in Russia (all in all, this list contains 4400 titles). According to the Agora report and the Sova Center (an analytical center specializing in studying political extremism, nationalism, and xenophobia), Article 354.1 was used five times in 2015, five times in 2016, eight times in 2017, five times in 2018, two times in 2019, and ten times in 2020. In addition, several defendants charged on the basis of this article were acquitted. Almost all the charges were brought against those who called into question the Soviet-Russian war myth, not against Holocaust deniers. Here are several examples of that. In June 2016, Vladimir Luzgin was sentenced by a court in Perm to a fine of 200,000 rubles (then about $3000) for reposting an article claiming that World War II began with the German and Soviet invasion of Poland, which contradicts the interpretation of that event in the Judgment of the Nuremberg Tribunal. The court ignored Luzgin’s argument that he had not read the Judgment, stating that he had received a good grade for modern history in high school and was therefore knowledgeable enough to understand that the article in question contained “false information” on the actions of the USSR during the war. This case suggests that the Yarovaya Law is an instrument of censorship and that the reference to the

42  “Rossiya protiv istorii: Doklad Mezhdunarodnoy Agory,” 2018, 6-7; “Istoria pod zapretom,” [2018], pobedobesie.info/istorija-pod-zapretom/. 43  The rapidly growing number of such cases forced the government to reinterpret its practice in 2019, which resulted in their substantial decrease in the following years.

146 

N. KOPOSOV

Nuremberg Judgment is used to penalize any criticism of the official Soviet/Russian narrative of the war.44 In November 2017, Ivan Lyubshin from Kaluga was sentenced to a fine of 400,000 rubles for posting on a popular social network, VKontakte, a video representing the joint Nazi-Soviet military parade in Brest in 1939, criticizing war crimes committed by the Red Army, and equating the Stalinist USSR to Nazi Germany. The video mentioned the presence of Russian troops in Donbass. Lyubshin also posted a propaganda leaflet representing German soldiers “bringing freedom to Russia” (as an inscription on the leaflet said). Lyubshin claimed that he had no intention of inciting hatred, justifying the German invasion of Russia, or calling into question the Judgment of the Nuremberg Tribunal. He explained his actions by his negative attitude toward communism and Stalinism, but the court did not accept his explanations45 (in 2020, Lyubshin was also convicted of justification of terrorism).46 For the first time, Article 354.1 was used to counter Holocaust denial in August 2017, when a criminal case was brought against Roman Yushkov, a nationalist activist and blogger from Perm. In July 2017, he was convicted (and immediately amnestied) of having called for extremist activities. Soon thereafter, he was charged with Holocaust denial for having reposted an article by Anton Blagin, a blogger from Murmansk, entitled “Jews! Return to Germans Money for Your Fraud with ‘Holocaust Six Million Jews.’” In his open video-letter to Putin (which is no longer available on YouTube), Yushkov asked, “Don’t you see that the religion of the Holocaust is invading Russia from the West?” Yushkov was acquitted in

44  Maksim Strugov, “Ssylka v Nurenberg,” Kommersant, June 30, 2016; Aleksandr Skobov, “Istoriyu rassudyat,” [History Will Have a Fair Trial] Grani.ru, July 1, 2016; Elena Smaraeva, “Otritsanie otritsateley: Kak v Rossii i Evrope nakazyvayut za reabilitatsiyu natsizma,” April 25, 2017, zona.media/article/2017/04/25/denial, accessed August 22, 2021. “The Case of Vladimir Luzgin,” Global Freedom of Expression, Columbia University, globalfreedomofexpression.columbia.edu/cases/case-vladimir-luzgin/, accessed August 22, 2021. 45  “Sud v Kaluge oshtrafoval mestnogo zhitelya na 400 tysyach rubley za posty cv sotssetyakh,” November 16, 2017, graniru.org/Society/Law/m.265660.html, accessed August 22, 2021. 46  “Kaluzhanin Lyubshin polychil 5 let obshchego rezhima za kommentarii ob aktsii Zhlobinskogo,” March 5, 2020, graniru.org/Politics/Russia/Politzeki/m.278406.html, accessed August 22, 2021.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

147

September 2018.47 Clearly, Russian courts have no interest in prosecuting Holocaust denial, which in their idiom is no rehabilitation of Nazism. Most recently, in January 2021, charges against Vladimir Matveev, a professor at one of Saint Petersburg’s universities, have been brought on the basis of Article 354.1 for openly denying the Holocaust during a public event dedicated to the “memory of the victims of the Holocaust and the members of the Red Army who [had] liberated Auschwitz.”48 Matveev was fired from his position at the university. At the time of writing, the outcome of his trial remains uncertain. The reluctance of the Russian courts to punish denialism may seem strange given the changes in the regime’s approach to Holocaust commemoration. These changes, which became particularly visible after 2015, were partly due to the situation that resulted from the annexation of Crimea and the war in Donbass, when Russia’s increasing isolation manifested itself in heavy new blows to its reputation as Eastern Europe’s liberator from fascism (the reputation on which the Kremlin builds its pretentions to the role of super-power). The scandal over Putin not attending, in January 2015, the seventieth anniversary of the liberation of the Auschwitz-Birkenau extermination camp by the Soviet army, became the single most important sign of Russia’s “mnemopolitical” loneliness. The Polish government, controlled by the Civic Platform Party in 2008-2015, was far more inclined to take a conciliatory attitude toward the Kremlin with regard to the past than the PiS Party had been; yet, it resolutely supported Ukraine in her conflict with Moscow, which inevitably led to a new round of mnemonic conflicts (they became even harsher after the PiS Party returned to power in the fall of 2015). Russia—and Putin personally—being excluded from the international celebration of an event that could have been used for praising Soviet military glory arguably contributed to the Kremlin’s decision to better integrate Holocaust remembrance into its cult of the war. However, the “rehabilitation” of Holocaust remembrance was no one-­ time event. The 2015 turn was prepared by a long-term evolution of which World Without Nazism and the Historical Memory Foundation’s 47  “Perm’: Yushkov opravdan po tretyemu ugolovnomu delu,” September 5, 2018, www. sova-center.ru/racism-xenophobia/news/counteraction/2018/09/d39970/, accessed August 22, 2021. 48  Elena Dmitrieva, “Rossiyskiy professor provel lektsiyu dlya uchiteley ob otritsanii Kholokosta,” January 27, 2021, lenta.ru/news/2021/01/27/professor/, accessed August 22, 2021.

148 

N. KOPOSOV

activities were signs. This turn was in part due to the persistent efforts of the aforementioned research centers and Jewish organizations created mostly in the 1990s. The context of the memory wars in Eastern Europe made the Russian government support some of their initiatives. Russia’s close relationship with Israel established under Ariel Sharon and Benjamin Netanyahu also contributed to this change. Another aspect of the regime’s politics that explains its increasing support for Holocaust commemoration was its tendency to develop the cult of the war in an inclusive rather than exclusive way to reach out to as many constituencies as possible. During the early years of Putin’s rule, the government sought to establish (or rather reestablish) the cult of the war as the cornerstone of the country’s identity and marginalize alternative memories, especially that of Stalin’s repressions.49 To achieve this goal, the regime could leverage the infrastructures inherited from the Soviet times (such as the associations of veterans, museums, memorials, movies, and so on). Already at that stage, however, Putin’s cult of the war differed from its “over-polished” version typical of the Brezhnev era: the revelations of the Gorbachev and Yeltsin periods made it impossible to silence the hardships of the war, human losses, the cruelty of the Soviet command, which did not care about the cost of victory, and even some of the war crimes committed by the Red Army. The narrative of the war on which its celebration came to be founded in the 2000s has become much more tragic and realistic, which helps explain why it has been embraced by the population. This narrative still excludes a few things, such as the Kremlin’s complicity in unleashing the war and the Soviet occupation of Eastern Europe, which the regime persistently presents as liberation. As the new cult of the war became firmly established, it became possible to further complicate the official narrative of the Soviet past without calling this cult into question. Along with the Holocaust, Stalin’s repressions could now be more fully integrated into this narrative. The opening of the Wall of Grief (the Soviet victims’ memorial in Moscow) in 2017 was the most important manifestation of this approach. The project for such a memorial was first proposed by Nikita Khrushchev as part of his politics of de-Stalinization, but it was not (and could not be) implemented then. 49  Dina Khapaeva, “Historical Memory in Post-Soviet Gothic Society,” Social Research 76.1 (2009): 367. See also her “Triumphant Memory of the Perpetrators: Putin’s Politics of Re-Stalinization,” Communist and Post-Communist Studies 49.1 (2016): 61-73.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

149

During perestroika, Gorbachev’s politburo decided to create such a memorial, but what was accomplished was only the erection of the Solovetsky Stone, a large stone brought from the Solovetsky Islands, the birthplace of the Gulag, and installed in front of the KGB headquarters in the center of Moscow.50 This decision was taken by the Moscow City Soviet, in which the democrats had a strong majority, on the initiative of the recently formed Memorial Society. In the following years, similar memorials were created in other Russian cities. But erecting a national memorial was not realistic during the turbulent Yeltsin years. The idea went out of style in the first years of Putin’s rule. The authorities returned to this project in the spring of 2011, when Medvedev’s attempts to form a coalition for modernization and the mnemonic truce with the West created a favorable context for that. The program of perpetuating the memory of the victims of the totalitarian regime, which the regime-appointed human rights defenders, members of the Presidential Council for Civil Society and Human Rights, proposed to Medvedev, foresaw the creation of such a monument.51 In December, when Moscow’s streets were witnessing mass rallies protesting against the fake elections, Medvedev created a working group to further develop this program,52 which was formally approved in August 2015. This happened despite the regime’s radical conservative turn, the adoption of repressive laws, the annexation of Crimea, and the escalating cult of the war.53 Characteristically, the name of the program was modified: “victims of the totalitarian regime” was replaced with “victims of political repressions.”

50  On the memorialization of communist repressions in Russia in the 1990s, see Nanci Adler, Victims of Soviet Terror. The Story of the Memorial Movement (Westport: Praeger, 1993); Kathleen E. Smith, Remembering Stalin’s Victims: Popular Memory and the End of the USSR (Ithaca: Cornell UP, 1996). 51  Predlozheniya ob uchrezhdenii obshchenatsional’noy gosudarstvenno-obshchestvennoy programmy, “Ob uvekovechenii pamyati zhertv totalitarnogo rezhima i o natsional’nom primirenii,” April 7, 2011, rg.ru/2011/04/07/totalitarizm-site.html, accessed August 22, 2021. 52  Rasporyazhenie ob obrazovanii rabochey gruppy po podgotovke predlozheniy, napravlennykh na realizatsiyu programmy uvekovecheniya pamyati zhertv politicheskikh repressiy, December 27, 2011, http://kremlin.ru/events/councils/by-council/18/14161, accessed August 22, 2021. 53  Kontseptsiya gosudarstvennoy politiki po uvekovecheniu pamyati zhertv politicheskikh repressiy, August 15, 2015, http://president-sovet.ru/documents/read/393/#doc-1, accessed August 22, 2021.

150 

N. KOPOSOV

Erecting the Wall of Grief was central to this program. Putin personally inaugurated the memorial on October 30, 2017. Since 1991, this day is officially commemorated in Russia as a national Day of Remembrance of the Victims of Political Repressions. Choosing that day for the unveiling of the Wall appeared logical. The authorities’ intention, however, was to contrast the monumental state-sponsored memorial to the much more modest Solovetsky Stone and so to expand its control over the symbolic landscape of the capital. Equally important was the fact that the Wall was inaugurated a week before the centennial of the 1917 Bolshevik revolution. The ceremony was planned and staged as the main state-sponsored event in commemoration of the revolution, while November 7 (the day of the revolution and the main Soviet holiday) was not celebrated at all.54 Indeed, the Bolshevik revolution has a bad reputation in the eyes of the regime’s ideologists who miss no opportunity to condemn the use of force for overthrowing what they consider legitimate authorities. They present Lenin and his group as traitors because they rebelled against the government during the war and accepted Germany’s financial support. Two successful TV mini-series launched to commemorate the centennial in the fall of 2017 present the revolution in light of the infamous myth of Judeo-­ Communism. Trotsky, with Konstantin Khabensky (Russia’s most popular actor) in the title role, presents Trotsky as the main figure of the Bolshevik revolution. Although the plot does not emphasize Trotsky’s Jewish origins, he is depicted as a stereotypical Jew. Demon of the Revolution, starring another popular actor, Fyodor Bondarchuk, tells an unproven story of Alexander Parvus, an influential Marxist thinker and a supposed broker between the German intelligence and Lenin during World War I.  Jews providing financial support to the revolution, and the revolution being a betrayal of Russia’s national interests, are among the main themes of the mini-series. Russians remain highly receptive to Jewish conspiracy theories: according to a 2018 VCIOM poll, 67% of respondents believe that there exists a “world government.”55

54  Shaun Walker, “Revolution, what Revolution? Russians Show Little Interest in 1917 Centenary,” The Guardian, November 6, 2017, www.theguardian.com/world/2017/ nov/06/revolution-what-revolution-russians-show-little-interest-in-1917-centenary, accessed August 22, 2021. 55  “Otkuda iskhodit ugroza miru? Analiticheskiy obzor,” July 11, 2018, wciom.ru/ analytical-­reviews/analiticheskii-obzor/otkuda-iskhodit-ugroza-miru, accessed August 22, 2021.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

151

The Putin regime has rehabilitated many aspects of the Soviet legacy that were almost entirely rejected by liberal reformers in the 1990s. But the Kremlin’s approach to the Soviet past is highly selective: Putinists enthusiastically embrace Soviet imperialism and authoritarianism, but denounce the communists’ revolutionary legacy. The timing of the Wall’s inauguration implied an interconnection between the communist terror and the revolutionary origins of the Soviet regime. Several former Soviet dissidents have unambiguously condemned the government practicing large-scale political repression and pretending it cares about the Soviet victims.56 They have also criticized the “system’s human rights defenders” (sistemnye pravozashchitniki) for supporting the government’s hypocritical politics. Transforming the memory of state terror into an official memory of an oppressive regime changes this memory’s nature and dilutes its humanistic and democratic potential. In the same way, state-controlled human rights organizations are used to marginalize independent activists who are persecuted without their better-established colleagues being willing or able to protect them. This analysis helps in explaining the regime’s changing attitudes toward the Holocaust, which was strictly parallel to the “domestication” of communist repressions’ memory. Instead of exorcizing Holocaust commemoration as an “irritating competitor” of the Soviet/Russian war myth, the Kremlin began establishing control over it by institutionalizing it as part of its own history politics in order to limit its potential as an alternative memory and avoid reproaches for anti-Semitism. It goes without saying that the place the extermination of the Jews occupies in the renewed Russian war narrative remains subordinate and that its memory is used manipulatively to promote the Kremlin’s imperialistic agenda. And yet, undeniable progress has been made in recent years in creating an infrastructure of Holocaust remembrance in Russia. Here are several examples to illustrate this point and demonstrate the ambiguities of Holocaust commemoration à la Russe. In 2005, the United Nations General Assembly designated January 27 (the day of the liberation of Auschwitz) as an annual International Day of Commemoration in

56  “Sovetskiye dissident nazvali ‘Stenu skorbi’ litsemeriem vlasti,” October 31, 2017, www. rfi.fr/ru/rossiya/20171031-sovetskie-politzaklyuchennye-i-dissidenty-nazvali-stenu-­ skorbi-­litsemeriem, accessed August 22, 2021.

152 

N. KOPOSOV

memory of the victims of the Holocaust.57 In 2011, Putin’s Presidential Administration refused to introduce this day into Russia’s commemorative: With all respect to the tragedy of the Jewish people […] we believe that we should not forget about millions of innocent victims of the Nazi regime from among other nations (Russians, Ukrainians, Poles, Belarusians, [and the] Roma people).58

The Presidential Administration’s letter also refers to the existence of other remembrance days, which makes the proposed one superfluous. Besides, January 27 was (and is) dedicated in Russia to commemorating the breaking of the Leningrad Siege, which is far more central to the Soviet/Russian war myth than the extermination of the Jews. The International Day of Liberation of the Nazi Concentration Camps is celebrated in Russia on April 11, when the Americans liberated Buchenwald. It might seem that the liberation of Auschwitz by the Soviets would be more appealing to the Kremlin as a historical symbol. Since Soviet times, however, Buchenwald rather than Auschwitz symbolized Nazi crimes in the Russian imagination, because most German communists (including Ernst Thälmann) were murdered there. Celebrating their memory was more in line with the Soviet conception of fascism viewed as an anti-­ communist and anti-Russian rather than a racist and anti-Semitic movement. This tradition was still alive in 2011 (and is alive now). Occasionally, local celebrations of International (not national) Holocaust Remembrance Day took place after 2006. Since 2015 (when Putin was not invited to the ceremony in Auschwitz), Memorial Week for the Victims of the Holocaust is annually co-organized by the Moscow City Government, the RJC, and the REHC to coincide with International Holocaust Remembrance Day. In its framework, Russian leaders regularly make public statements in which one can notice interesting nuances. Thus, Putin said in January 2015:

57   United Nations General Assembly, “Holocaust Remembrance,” Resolution A/ RES/60/7, November 1, 2005. 58   V administratsii prezidenta RF initsiativu REK o vnesenii Dhya pamyati zhertv Kholokosta v perechen’ pamyatnykh dat nazvali “izlishney,” April 12, 2011, www.newsru. com/russia/12Apr2011/holokost.html, accessed August 22, 2021.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

153

The Holocaust was one of the most tragic and shameful pages in human history. Millions of innocent people fell victim to the Nazis […]. The Red Army put an end to these atrocities […] and saved not just the Jewish people but also other peoples of Europe and the World.59

In line with the Russian war myth, this statement emphasizes the role of the USSR in the victory over Nazism and downplays the Holocaust as a crime against the Jews, who are referenced here among other “innocent people.” In January 2018, Putin and Benjamin Netanyahu visited the recently founded Jewish Museum and Tolerance Center in Moscow (its creation in 2012 was an important step in the development of the Holocaust remembrance’s institutional infrastructure; the idea had been under discussion since the early 2000s). In his speech, Putin condemned attempts “to deny the Holocaust and belittle the decisive contribution of the Soviet Union in the victory over Nazi Germany.”60 In the same spirit, Valentina Matvienko, Chairperson of the Federation Council, said in 2019, “We mourn the victims of the Holocaust, [and] we bow our heads before the great feat of Soviet soldiers and officers who defeated fascism.”61 Here as well, commemorating the Holocaust is a way to glorify the Soviet army. In contrast, Medvedev (prime minister in 2012-2020) consistently mentioned in his speeches “six million Jews who perished in the Holocaust.”62 This suggests that the first attempts to include the Holocaust in the Soviet/Russian war myth, which were undertaken during his presidency, could have to do with his personal take on the issue. Writing in 2013, a distinguished Russian sociologist, Boris Dubin (Levada-Center), stated, “the Holocaust [did] not exist as a theme in mass Russian culture.” He meant that there were almost no works of art,

59  Privetstvie uchastnikam Memorial’nogo vechera-rekviema, posvyashchennogo 70-letiyu osvobozhdeniya Krasnoy armiyey uznikov kontslagerya Osventsim i Mezhdunarodnomu dnyu pamyati zhertv Kholokosta, January 26, 2015, http://kremlin.ru/events/president/ news/47520, accessed August 22, 2021. 60  Meropriyatie, posvyashchennoye dnyu pamyati zhertv Kholokosta i godovshchine snyatiya blokady Leningrada, January 29, 2018, http://kremlin.ru/events/president/ news/56740, accessed August 22, 2021. 61  Obrashchenie predsedatelya SV V.  Matvienko v svyazi s Mezhdunarodnym Dnem pamyati zhertv Kholokosta, January 27, 2019, http://council.gov.ru/events/ news/100724/?hl=холокост, accessed 8/21/2021. 62  Dmitry Medvedev posetil Evreyskiy muzey i tsentr tolerantnosti, January 26, 2017, http://government.ru/news/26210/, accessed August 21, 2021.

154 

N. KOPOSOV

movies, or novels about it that would attract considerable attention.63 Things have been changing since then. In particular, three successful Russian feature films discuss the theme of the Holocaust. The 2017 Cold Tango by one of the leading Soviet/Russian film directors, Pavel Chukhray, deals with the Holocaust (and the Soviet repressions) in Lithuania and emphasizes the participation of the Lithuanians in the extermination of the Jews. In July 2018, Konstantin Fam’s film Witnesses was released. It includes three short cinematic novels: Shoes, Brutus, and Violin, representing the Holocaust as reflected in minor details of everyday life. Konstantin Khabensky’s 2018 Sobibor tells the story of the October 1943 uprising in the Sobibor camp led by a lieutenant of the Red Army, Aleksandr Pechersky (played by Khabensky himself). Unsurprisingly, the movie focuses on Russia’s decisive role in the anti-Nazi resistance.64 Holocaust education in Russia has been considerably improved since 2003 when under pressure from the REHC, the Ministry of Education included the Holocaust into the high school curriculum. In 2011, questions about the Holocaust were included in the Common National Examination in history, which an increasing proportion of school leavers have to take. Since 2004, history textbooks typically include a one-page paragraph on the topic. Some schools offer elective courses on the Holocaust.65 Recent years have also been characterized by an expansion of Holocaust memorials in Russia supported by the RJC’s Restore the Dignity project, in which the REHC also participates. Activists and researchers have identified more than 500 sites of mass killing of Jews in Russia. The plan is to create memorials in all of them. Several dozen memorials have already been opened, including in Plavsk (Tula region, 2018), Khabarovsk (May 2018), Bryansk (2013, 2018), Zlynka (Bryansk region, 2017), and Pavlovsk (Leningrad region, 2018).66 63  Boris Dubin, “Vtoraya mirovaya voyna i Kholokost v rossiyskom obshchestvennom soznanii,” November 14, 2013, http://urokiistorii.ru/article/51913, accessed August 22, 2021. 64  Izabella Tabarovsky, “Russia’s Strange Obsession with Sobibór,” May 9, 2018, http:// www.kennan-russiafile.org/2018/05/09/russias-strange-obsession-with-sobibor/, accessed August 22, 2021. 65  See a recent collection of articles on Holocaust education in Russia in Prepodavanie istorii v shkole 5 (2019) and Prepodavanie temy Kholokosta v regionakh Rossii, ed. Ilya Altman, http://www.jerusalem-korczak-home.com/konkorcz/bul1/pr.html, accessed August 22, 2021. 66  Rossiyskiy evreyskiy congress. Sokhraneniye pamyati o Kholokoste, rjc.ru/ru/projects/1, accessed August 22, 2021.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

155

The erection of these memorials, however, may have an aspect of Holocaust distortion. Here is a typical example. On January 27, 2013, opening a memorial at Bryansk, Igor Zelsburg, the leader of a local Jewish organization, Khesed Tikva, stated that the Nazis exterminated 17,000 Jews in the Bryansk region.67 He did not mention, however, that some Jews were murdered by the local population, including anti-Semitic activists of the Lokot Autonomy, the largest semi-independent Russian region under the German occupation. Similar things (the “Holocaust by bullets”) happened in most East European countries during the war, and Russian ideologists never miss their chance to accuse Poles, Ukrainians, Lithuanians, Latvians, or Estonians of being involved in them. But the Russians’ participation in the Holocaust, as well as the scale of their collaboration with the Nazis, remains taboo in Russia. The predominantly manipulative use of the Holocaust by Russian memory entrepreneurs seeking to expand their control over as many different memory landscapes as possible explains the otherwise illogical combination of the expanding (although still limited) governmental support to Holocaust commemoration with indulgence toward the deniers. Very limited sociological data is available to “measure” the results of all these efforts. According to its website, the Russian Public Opinion Research Center (VСIOM) has never asked questions about the Holocaust. The main (relatively) independent sociological research institute, the Levada-Center, conducted its last survey on the Holocaust (and the Armenian genocide) in 2015. The number of respondents claiming to know nothing about the Holocaust decreased from 13% to 8% between 2007 (when the previous survey was conducted) and 2015; the proportion of “deniers” fell from 12% to 6%, and the number of those who agree that the Nazis had attempted to exterminate “the entire [Jewish] nation” increased from 63% to 74%. The only significant difference between different social categories is age-related: 23% of the respondents under 24 said they had not heard about the Holocaust.68 These are precisely the age groups that could have profited from an improvement in Holocaust education. Arguably, media (which older people are more likely to follow and 67  Aktsiya v pamyat’ o bolee chem 17 tysyachakh evreyev, unichozhennykh za gody okkypatsii v Bryanskoy oblasti, proshla v Bryanske, January 27, 2013, ria.ru/society/20130127/919956905.html, accessed August 22, 2021. 68   “Genotsid armyanskogo i evreyskogo narodov,” June 15, 2016, www.levada. ru/2015/06/15/genotsid-armyanskogo-i-evrejskogo-narodov/, accessed August 22, 2021.

156 

N. KOPOSOV

which cover Holocaust-related commemorative events) are more efficient than high schools in promoting Holocaust awareness. These polls suggest that the situation has improved and that, statistically speaking, Holocaust negationism has relatively little support in Russia. But first, we simply do not know how things have evolved since 2015. And second, the Levada-Center sociologists did not try to uncover the respondents’ “real” attitudes by asking indirect questions. Holocaust historian Ksenia Poluektova-Krimer observes: All those who address the Russian audience on the topic of the Holocaust know well that the very first commentators […] would resend and wave aside: “We are bored with your Holocaust, stop puffing out your tragedy, we have our own twenty-seven million dead.”69

Such comments, which are indeed very common, testify to Holocaust fatigue, which is also typical of some other countries, and to the persisting Soviet tradition of Holocaust distortion. As already mentioned, straightforward denial is also common on the Russian internet. Clearly, the memory of the Holocaust has been very selectively and half-heartedly embraced and protected by the Kremlin. Let us return to memory laws. Several bills were introduced in the State Duma following the adoption of the Yarovaya Act. In November 2014, the parliament amended the aforementioned 1995 law on the victory over Nazism and Article 20.3 of the Administrative Code by equating the symbols of Stepan Bandera’s Organization of Ukrainian Nationalists to Nazi symbols, the display of which both acts forbid.70 This amendment was in line with the Kremlin’s interpretation of the 2014 Ukrainian Revolution of Dignity as well as the wartime nationalist guerilla groups as pro-Nazi movements. Several bills of 2014-2016 protected the mainstream war myth, and they competed with each other in proposing increasingly radical and unworkable formulas in the context of the continuing war in Ukraine and 69  Ksenia Poluektova-Krimer, “O Evreyakh prosyat ne bespokoit’sya,” May 3, 2018, pobedobesie.info/o-evrejah-prosjat-ne-bespokoitsja/. Twenty-seven million is an official estimate of the Soviet military and civil casualties in World War II. 70  Federal Law no. 332-FZ, “O vnesenii izmeneniy v statyu 6 Federal’nogo zakona ‘Ob uvekovechenii Pobedy sovetskogo naroda v Velikoy Otechestvennoy voyne 1941-1945 godov’ i statyu 20.3 Kodeksa Rossiyskoy Federatsii ob administrativnykh pravonarusheniyakh,” November 5, 2014.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

157

the confrontation with the West. It is hard not to suppose that their authors were primarily interested in self-promotion. Note that all parties represented in the Duma participate in whipping up patriotic hysteria by proposing punishments for heretical statements about the past. With few exceptions (such as the CPRF objecting to the recognition of Soviet responsibility for Katyn in 2010), all Duma parties pursue similar history policies and care about their share in the moral high-ground of the war cult. A 2014 bill authored by an MP from LDPR, Mikhail Degtyaryov, forbade “discrediting the Victory of the Soviet people” in World War II and “equating the liberation by the Soviet armies of the Soviet republics of the USSR and the countries of Europe from the German fascist occupants to the beginning of an occupation.”71 Some other similar initiatives were not pre-approved by the government, and they did not make it to the Duma. Thus, in May and June 2015, Vitaly Zolochevsky (LDPR) and Valery Rashkin and Sergey Obukhov (CPRF) proposed two bills criminalizing “publicly equating the political regime of the USSR and the regime of Nazi Germany.” To explain why these bills appeared almost simultaneously, Zolochevsky reportedly said, “Ideas are in the air.” The government, however, decided that both drafts were superfluous because these offenses were punishable on the basis of Article 354.1.72 In 2016, Sergey Obukhov chose a different approach and proposed to criminalize: Actions that express manifest disrespect of society and have been committed to insult the sentiments of the veterans of the Great Patriotic War, by intentionally falsifying the information about the Great Patriotic War […] or by abasement or belittling the deeds of the USSR armed forces’ members.73

71  Koposov. Memory Laws, Memory Wars, 296-298; “O vnesenii izmeneniy v Federal’nyi zakon ‘Ob uvekovechenii Pobedy sovetskogo naroda v Velikoy Otechestvennoy voyne 1941-1945 godov’ i v Ugolovnyi kodeks Rossiyskoy Federatsii,” Article 2, http://degtyarev. info/document/zakonproekti/139237/, accessed August 21, 2021. 72  Anzhelina Grigoryan, and El’dar Akhmadiev, “Publichnoye prihavnivamiye SSSR k natsizmu ne stanet sostavom prestupleniya,” Izvestiya, September 15, 2015. 73   Zakonoproekt no. 1166853-6, “O dopolnenii Ugolovnogo kodeksa Rossiyskoy Federatsii statyey 148 (v chasti ugolovnoy otvetstvennosti za oskorblenie chuvstv veteranov Velokoy Otechestvennoy voyny),” September 6, 2016, Article 1. See also Vladimir Dergachev, “Tri goda rabot za oskorblenie veteranov,” May 7, 2016, www.gazeta.ru/ politics/2016/05/06_a_8217995.shtml, accessed August 21, 2021.

158 

N. KOPOSOV

The bill also forbade, in its Article 2, “dismantling, destruction, or damage” of war memorials. Obukhov, however, proposed relatively mild sanctions for these crimes (correctional or compulsory labor for up to three years). All these bills, which resulted from their authors’ personal initiative, were not approved by the parliament. But they have prepared the ground for similar government-initiated 2021 enactments. In response to these drafts, Konstantin Dobrynin (Spiegel’s co-author) initiated a bill “On Counteracting the Rehabilitation of Crimes of Stalin’s Totalitarian Regime,” which had no chance of being adopted although it was in line with the aforementioned program of perpetuating the memory of the victims of political repressions. But this program was not intended to create an efficient means of “de-Stalinization.” Dobrynin’s bill prohibited the denial of those actions “that had been officially condemned by the [Russian] state as crimes of Stalin’s totalitarian regime,”74 referring to the 1991 laws on the rehabilitation of victims of political repressions and repressed peoples. After the end of Dobrynin’s term on the Council of the Federation, Dmitry Gudkov (the only remaining independent MP) submitted two similar bills, but they were not supported by the parliament either.75 These initiatives had a purely symbolic character. The same can be said about the suggestion of the Karachay-Cherkess Autonomous Republic to criminalize the denial of political repressions, including Stalin’s deportations of repressed peoples.76 Finally, in 2015, the Just Russia Party proposed to prohibit denying the 1915 Armenian genocide,77 which had been recognized in Russia in 1995. The 2015 bill, however, was designed not so much to commemorate (as one would expect) the centennial of this tragedy, but rather in response to the crisis in Russo-Turkish relations that followed the downing, a day prior 74  Zakonoproekt no. 885220-6, “O protivodeystvii reabilitatsii prestupleniy stalinskogo totalitarnogo rezhima (stalinizma),” September 21, 2015, Article 3. 75  Zakonoproekt no. 923007-6, “O protivodeystvii reabilitatsii prestupleniy stalinskogo totalitarnogo rezhima (stalinizma),” November 6, 2015; Zakonoproekt no. 1028277-6, “O protivodeystvii reabilitatsii prestupleniy stalinskogo totalitarnogo rezhima (stalinizma),” March 25, 2016. 76  Zakonoproekt no. 307263-6, “O vnesenii izmeneniy v Ugolovnyi kodeks Rossiyskoy Federatsii (v chasti dopolnenuiya UK RF novoy statyey 128.2 ‘Otritsanie, opravdanie, odobrenie, preumen’shenie sovershennykh politicheskikh repressiy’),” July 1, 2013. 77  Zakonoproekt no. 938567-6, “O vnesenii izmeneniy v Ugolovnyi kodeks Rossiyskoy Federatsii i v statiu 151 Ugolovno-protsessual’nogo kodeksa Rossiyskoy Federatsii (v chasti ustanosleniya ugolovnoy otvetstvennosti zaotritsanie faktov genitsida armyanskogo naroda Zapadnoy Armenii I v Osmanskoy Turtsii v period 1915-1922 godov),” November 21, 2015.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

159

to the submission of the bill, of a Russian warplane by a Turkish missile, and in response to the October 2015 decision of the European Court of Human Rights, according to which the denial of the Armenian genocide, in contrast to Holocaust denial, does not always carry a hate message (case of Perinçek vs. Switzerland).78 This was an occasion for some Russian politicians to accuse the ECtHR of double standards and of indifference toward the Armenian victims. The Just Russia bill was an attempt to manipulatively use this tragedy. But it was not supported by the Russian government, which was seeking to improve its relationship with Turkey. A new period in the development of the legal governance of memory in Russia began with the adoption of amendments to the 1993 Constitution in June 2020.79 The main goal of the reform was to allow Putin, whose fourth presidential term ends in 2024, to run for the presidency for two more terms under the pretext that he served his previous terms under the “old” constitution. In addition to slightly modifying the functions of several governmental bodies, these sloppy amendments develop the Constitution’s “symbolic and identity program,” including by reconceptualizing the historical lineages of the Russian state.80 In particular, the first paragraph of the newly introduced Article 67.1 stipulates that the Russian Federation is the “legal successor of the USSR,” while its second paragraph expands the notion of historical continuity to include one thousand years of history. This paragraph is worth being quoted fully: The Russian Federation, united by its millennial history, preserving the memory of ancestors who have conveyed to us ideals and faith in God, as well as continuity in the development of the Russian state, recognizes the historically established state unity.

This paragraph partly duplicates the preamble of the Constitution as formulated in 1993, which the 2020 reform has left untouched and which also speaks about the “the multinational people of the Russian Federation” 78  Cour européenne des droits de l’homme, Grande Chambre, Affaire Perinçek c. Suisse, Requête no. 27519/08, Arrêt, Strassbourg, Cctobre 15, 2015. 79  Konstitutsiya Rossiyskoy Federatsii, http://publication.pravo.gov.ru/Document/Vie w/0001202007040001?index=24&rangeSize=1, accessed August 22, 2021. 80  Jukub Sadowski, “Amendments of 2020 to the Russian Constitution as an Update to Its Symbolic and Identity Programme,” International Journal for the Semiotics of Law 2021, link.springer.com/content/pdf/10.1007/s11196-020-09802-w.pdf, accessed August 22, 2021.

160 

N. KOPOSOV

being “united by a common fate on [their] land, […] preserving the historically established state unity,” and “revering the memory of ancestors who have conveyed to us the love for the Fatherland, belief in the good and justice.” In typical Putin style and without caring for consistency, the authors of the amendments did not dare to modify the preamble; instead, they introduced an alternative preamble “hidden” in one of the Con­stitution articles (which is why I referred to these amendments as sloppy). The 1993 preamble refers to “human rights and freedoms, civic peace and accord” and “the universally recognized principles of equality and self-determination of peoples.” In contrast, the “hidden preamble” does not mention these values but emphasizes “faith in God,” which may not be fully in line with Article 14.1 stipulating, “the Russian Federation is a secular state.” The trickiest aspect of the paragraph, however, is the word “millennial” (tysyacheletnyaya), which looks like a poetic expression for “being here from immemorial times.” But it also refers to a very concrete moment in Russian history, as the mention of “faith in God” in the same sentence suggests, namely the adoption of Christianity by Prince Vladimir in 988. The annexation of Crimea in 2014 gave rise to a real cult of Prince Vladimir, because his conversion to Christianity took place in the town of Chersonese in Crimea. The reference to “Korsun shrines” returning to the possession of their home country (Korsun is a medieval Russian word for Chersonese) was widely used in official propaganda and by Russian nationalists to justify the annexation of Crimea, which was viewed as an integral part of Russia rather than Ukraine. Several monuments to Prince Vladimir were recently erected in Russia, including a gigantic statue in Moscow, right in front of the Kremlin (2016), with the intention of “Russifying” Vladimir, who ruled in Kiev, not in Moscow (which did not even exist then). The Moscow statue was designed as an alternative to the famous Saint Vladimir monument on Saint Vladimir Hill in Kiev (1853), one of the symbols (and the most romantic places) of Ukraine’s capital. Parallel to the “monumental dispute” over Prince Vladimir’s identity, the expression “Kievan Rus,” which since the nineteenth-century was used to refer to the Kievan period in the history of Ancient (i.e., pre-Petrine) Rus, has been banned from Russian history textbooks. Dina Khapaeva has every reason to emphasize the importance of neo-medieval motives in current Russian history politics.81 81  Dina Khapaeva, “Neomedievalism as a Future Society,” The Year’s Work in Medievalism 32 (2017), ed. Richard Utz, sites.google.com/site/theyearsworkinmedievalism/all-­ issues/32-2017 and her “Triumphant Memory of the Perpetrators: Putin’s Politics of Re-Stalinization,” 61–73.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

161

The hidden (but obvious to most Russians) reference to the adoption of Christianity as the birth of the Russian state can also be seen as not fully consistent with Article 14.1 of the Constitution, which forbids establishing any official religion and (in its part 2) declares all confessions separate from the state and equal to each other. The same tension between the multinational and multi-confessional nature of the Russian state, on the one hand, and the privileged status of ethnic Russians and Orthodox believers, on the other, is manifest in the amended Constitution’s emphasis (in Article 68.1) on Russians being a “state-forming people.” This is why their language is declared “a state language on the whole territory of the Russian Federation.” The amended Constitution thus contributes to further nationalizing the Kremlin’s official history narrative. Most important for the topic of this chapter is paragraph 3 of the Constitution’s Article 67.1, which stipulates: The Russian Federation respects the memory of the defenders of the Fatherland and protects the historical truth. It is not allowed to diminish the significance of the heroism of the people in defending the Fatherland.

The theme of protecting historical truth has been central to Putin’s propaganda since the beginning of the memory wars between Russia and its East European neighbors in the mid-2000s. The amended Constitution raises this demagogical formula to the rank of constitutional norm. History politics is thus officially recognized as being the government’s legitimate function, despite Article 13.2 of the Constitution, which forbids any official ideology. Protecting historical truth by legal means, however, is little different from having an official ideology. Characteristically, this norm is introduced as part of an article prohibiting doubts about Russia’s “military glory,” including the reputation of veterans. This is a clear indication that the war cult remains the cornerstone of the regime’s ideology and that no “religion of the Holocaust” (as Russian nationalists put it) can compete in Putin’s Russia with the traditional militaristic historical narrative. The Kremlin spares no effort to promote a vision of Russia being assaulted by the falsifiers of history working all across the world to undermine its historical reputation as the main bastion against fascism. The obvious goal of this propaganda is to exclude any accusations that the regime is evolving toward a near-fascist dictatorship. Thus, a June 2020 report of the Ministry of Foreign Affairs meticulously documents, on

162 

N. KOPOSOV

several hundred pages, the “heroization of Nazism” in the US, Canada, and 36 European countries, and presents it as a world-wide anti-Russian conspiracy initiated by the “inherently fascist” West.82 It was easy to predict that the amendments to the Constitution would trigger a new wave of repressions on heretical claims about the past and legislative initiatives criminalizing such claims. In September 2020, the Investigative Committee of the Russian Federation, which in recent years has emerged as a major instrument of political terror, announced the creation of its new division specifically tasked with the struggle against “rehabilitation of Nazism and falsification of [Russia’s] national history.” According to the Chair of the Investigative Committee Aleksandr Bastrykin, this division, staffed with employees competent in history, will investigate offenses committed both in Russia and abroad (e.g., the activities of the Ukrainian Institute for National Remembrance and the destruction of the monument to the Soviet Marshal Ivan Konev in the Czech Republic); it will also provide assistance to local prosecutors confronted with cases of the rehabilitation of Nazism.83 In other words, a large-scale campaign against “the falsifiers of history” is currently in preparation. In this context, it comes as no surprise that several memory laws have been passed in preparation for this campaign, in order to increase the penalties for deviating from the official narrative of the war. Like the 2014 Yarovaya Law, the new enactments about the past are part of a large-scale legislative effort aimed at further limiting freedom of expression. Thus, a 2019 law introduced new administrative fines for expressing “obvious disrespect” to the society, government, state symbols, and constitution of the Russian Federation.84 Also, a 2021 law amended the 2012 act on education and established the government’s full control over educational activities through the internet, including privately organized lectures and 82  “O situatsii s geroizatsiey natsizma, rasprostranenii neonatsizma i drugikh vidov praktiki, kotoruye sposobstvuyut eskalatsii sovremennykh form rasizma, rasovoy discriminatsii, ksenofobii n svyazannoy s nimi neterpimosti: Doklad Ministerstva inostrannykh del Rossiyskoy Federatsii,” June 2020, www.mid.ru/foreign_policy/humanitarian_cooperation/-/asset_ publisher/bB3NYd16mBFC/content/id/4145891. On the portraying the West as essentially anti-Russian and pro-fascist in the Ministry of Foreign Affairs’ official documents see Koposov, Memory Laws, Memory Wars, 255-59. 83  “Aleksandr Bastrykin: Neonatsizm i revanshism poka, vidimo, ne pugayut Evropu,” September 16, 2020, ria.ru/20200916/bastrykin-1577302863.html, accessed August 22, 2021. 84  Federal’nyi zakon no. 28-FZ, “O vnesenii izmeneniy v Kodeks Rossiyskoy Federatsii ob administrativnykh pravonarusheniyakh,” March 18, 2019.

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

163

discussions.85 This happened in response to the attempts of scholars fired from state-owned institutions to create independent educational networks. Along with Irina Yarovaya, Elena Yampolskaya, an MP from United Russia, chair of the Duma Committee on Culture, and a devoted Stalinist, became the driving force of the new memory law initiatives. These initiatives began being widely discussed after the adoption of the amended Constitution in 2020. They went in line with the aforementioned bills of the previous years, which aimed at penalizing insults to veterans and equating Stalinism with Nazism. Two new memory bills were introduced into the parliament by Yarovaya in November 2020. They were passed in March 2021 and signed into law on April 5, simultaneously with the aforementioned changes to the act on education. The first one amended Article 13.15 of the Administrative Code, which forbids insulting the symbols of Russia’s military glory. Since April 2021, it also prohibits insulting, or disseminating false information about, veterans. The new law has also increased fines for legal entities to up to five million rubles (currently about $ 70,000).86 Such fines are unbearable for most independent media, which typically have limited readership and modest financial resources. The second law has introduced similar changes in Article 354.1 of the Criminal Code. It stipulates that using the internet for disseminating heretical statements about World War II constitutes an aggravating circumstance and makes the offense punishable by five years of incarceration; it adds insults to veterans’ honor and dignity to the range of criminal offenses; and considerably (also to up to five million rubles) increases fines on physical individuals for violating these bans.87 Given that a fine is a typical punishment imposed on those sentenced on the basis of Article 354.1, the amendment has clearly introduced much more severe sanctions for statements contradicting the official narrative of the war. The most recent legislative initiative aimed at protecting the cult of the war has been suggested by Yampolskaya. On several occasions, including at the October 2020 meeting of the Presidential Council for Culture and Art, she proposed to criminalize equating the goals of the USSR and 85  Federal’nyi zakon no. 85-FZ, “O vnesenii izmeneniy v Federal’nyi zakon ‘Ob obrazovanii v Rossiyskoy Federatsii,’” April 5, 2021. 86  Federal’nyi zakon no. 58-FZ, “O vnesenii izmeneniy v statii 3.5 i 13.15 Kodeksa Rossiyskoy Federatsii ob administrativnykh pravonarusheniyakh,” April 5, 2021. 87  Federal’nyi zakon no. 59-FZ, “O vnesenii izmeneniy v statiu 354-1 Ugolovnogo kodeksa Rossiyskoy Federatsii,” April 5, 2021.

164 

N. KOPOSOV

Germany in World War II. This was done largely in response to the January 2020 resolution of the Polish Sejm, which condemned “the provocative and untrue statements by representatives of the highest authorities of the Russian Federation attempting to hold Poland liable for the Second World War.” Such accusations against Poland were (and are) often made by Russian officials and media, so that the Sejm’s resolution was not ungrounded, especially given that the current Polish regime is highly sensitive with regard to the country’s reputation as one of the main victims and opponents of Nazism.88 The resolution also states that “the Second World War was caused by two totalitarian regimes: Hitler’s Germany and Stalin’s Soviet Union.”89 In its turn, the Kremlin is hypersensitive to such accusations, obviously because of its emphasis on the historical continuity of the Soviet/Russian state. At the October meeting, Putin expressed his support for Yampolskaya’s initiative. In January 2021, he officially instructed the Duma “to draft a federal law to amend the federal law ‘On Perpetuating the Victory of the Soviet People in the Great Patriotic War of 1939-1945’ to prohibit publicly equating the roles of the USSR and Nazi Germany in the Second World War.”90 The deadline for drafting such a law was set as July 1, 2021. However, the Duma received Yampolskaya’s bill as early as May 5, to coincide with the Victory Day propaganda campaign. It outlaws “equating the goals, decisions, and actions of the USSR leadership, high command, and members of the military” to those of Nazi Germany “as established by the Judgment” of the Nuremberg Tribunal, “as well as denying the decisive role of the Soviet people in defeating Nazi Germany and the humanitarian mission of the USSR in liberating European countries.”91 The ban applies to claims made “in a public speech, in a publicly displayed work, in mass media, or with the use of information and telecommunication networks, including the internet.” This can be  Koposov, “Populism and Memory.”  Uchwała Sejmu Rzczypospolitey Polskiej w sprawie wyrażenia sprzeciwu wobec manipulowania faktami i zakłamywania historii przez polityków Federacji Rosyjskiej w celu dyskredytowania Polski i pogarszania relacji rosyjsko-polskich, January 9, 2020, www.sejm.gov.pl/ media9.nsf/files/MARA-BKTDSU/%24File/154_u.pdf, accessed August 22, 2021. 90  Perechen’ porucheniy po itogam zasedaniya Soveta po kul’ture i iskusstvu, www.kremlin.ru/acts/assignments/orders/64925, accessed August 22, 2021. 91  Zakonoproekt no. 1166218-7, “O vnesenii izmeneniy v Federal’nyi zakon ‘Ob uvekovechenii Pobedy sovetskogo naroda v Velikoy Otechestvennoy voyne 1941-1945 godov,” May 5, 2021. 88 89

6  HOLOCAUST REMEMBRANCE, THE CULT OF THE WAR, AND MEMORY… 

165

interpreted as covering academic lectures, published research (including published online), and works of art. However, the bill introduces no new criminal sanctions, which may be due to several reasons. First, the 1995 law on “perpetuating the victory” over fascism, which it proposes to amend, does not foresee such sanctions either; it only declares the “propaganda of fascism” illegal. Second, Article 354.1 as interpreted by the Russian courts allows for punishing the statements that Yampolskaya seeks to forbid, and which her bill presents as propaganda and self-promotion. Characteristically, the law is not intended to forbid comparing Stalinism and Nazism in general, in contrast to the aforementioned communist-­ sponsored draft of 2015. What the authorities seek to protect is not communism, but Russia’s imperial foreign policy. Protecting the Soviet/Russian cult of the war remains the main objective of the Russian government’s politics of memory, including its legislation of the past. Attempts to more fully integrate Holocaust remembrance into this cult undertaken since 2008 and especially 2015, have resulted in positive changes in Holocaust education and commemoration, even though the memory of Jewish sufferings is used manipulatively and remains peripheral to Russia’s memory landscapes. Russian legislation of the past and its application focus almost exclusively on the country’s military glory. This makes this legislation the exact opposite of its West European homologue. As the Kremlin’s confrontation with the West escalates and nuclear blackmail emerges as the cornerstone of Putin’s rhetoric, the notion of Russia’s military glory becomes increasingly central to his politics of the past. The growing punitive trend in Russian memory laws faithfully reflects the increasingly authoritarian and nationalistic character of the Putin regime.

CHAPTER 7

Protecting Memory or Criminalizing Dissent: Memory Laws in Lithuania and Latvia Eva-Clarita Pettai

If Russian troops would enter Lithuania today, they would be in a similar situation as in 1940: they would be met with kisses and flowers and [people would] be happy as hell (ir būtų laimingi iki išprotėjimo). Dear President of the Russian Federation, the absolute majority of the brotherly people of Lithuania wants you to not leave us in the lurch and help as well as the brotherly Russian people currently helping the new Russia.

For this and countless other similar statements, posted on social media and uttered during TV shows and in interviews over the course of several years, Jurijus Subotinas, a notorious figure in Lithuanian public debate, was sentenced to a fine of 1883 Euro in September 2016. The Vilnius Appeals Court found that the defendant had consciously and continuously incited hostility towards the current political system and government in Lithuania by publically praising the Soviet Union’s aggression and occupation of the

E.-C. Pettai (*) University of Jena, Jena, Germany © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_7

167

168 

E.-C. PETTAI

Republic of Lithuania in 1940 and downplaying the crimes committed by that occupation regime against Lithuanian inhabitants.1 Subotinas had thus committed a criminal offence according to article 170.2 on “Public condoning, justification, trivialisation or denial of the aggression of the USSR or Nazi Germany against the Republic of Lithuania or their crimes of genocide or other crimes against humanity, or war crimes or other grave crimes or felonies.”2 This law has been in Lithuania’s national criminal code since 2010. Its institution was part of a wave of new laws across Europe that criminalize negationism following the 2008 European Council’s Framework Decision “on combating certain forms and expressions of racism and xenophobia by means of criminal law.”3 Lithuania was one of only a handful of EU member states that not only banned the denial of genocide, crimes against humanity and war crimes as defined by international norms and conventions, but also explicitly penalized the denial or justification of “Soviet (communist) crimes” as part of this law. Another country that went beyond what was required by European framework legislation was Poland, a country  that in 2018 amended an already existing memory law penalizing public statements that “accused the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich.”4 This so called Holocaust-law triggered much debate about the limits of the Rechtsstaat to interfere in public memory and historical discourse by way of criminal law. Polish government officials praised the law as protecting the dignity

1  Vilniaus Apygardos Teismas Nuosprendis, Baudžiamoji byla Nr. 1A-309-318/2016 (November 21, 2016), Vilnius. 2  Lietuvos Respublikos baudžiamojo kodekso 95 straipsnio pakeitimo bei papildymo, kodekso papildymo 1702 straipsniu ir kodekso priedo papildymo įstatymas, No. XI-901 (June 15, 2010), Vilnius. Translation provided by Justinas Žilinskas, “Introduction of ‘crime of denial’ in the Lithuanian criminal law and first instances of its application,” Jurisprudence, 19.1 (2012): 321. 3  Framework Decision 2008/913/JHA. 4  The exact wording of the proposed article 55a(1) is “whoever accuses, publicly and against the facts, the Polish nation, or the Polish state, of being responsible or complicit in the Nazi crimes committed by the Third German Reich … or other crimes against peace and humanity, or war crimes, or otherwise grossly diminishes the actual perpetrators thereof, shall be subject to a fine or a penalty of imprisonment of up to three years.” (Full text of Poland’s controversial Holocaust legislation, The Times of Israel, February 1, 2018, www.timesofisrael. com/full-text-of-polands-controversial-holocaust-legislation/, accessed January 3, 2021.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

169

of the Polish nation and its “true history.”5 Other governments as well as historians by contrast warned about the possible repercussions of this law for academic research and open discourse about complex historical issues.6 Critics compared the Polish law to Russian and Turkish legislation that aimed to silence critical voices about Soviet crimes during World War II (in the case of Russia), or Turkish regime crimes against Armenians in 1915 (in the case of Turkey) in the name of protecting the dignity of the nation.7 Both the 2015 Ukrainian so-called de-communization laws and the denial laws of Lithuania and Latvia have also been heavily criticized for their alleged attempt to impose a historical narrative of national victimization and to deflect from more painful questions of local complicity in crimes of past regimes.8 This article will take a closer look at the latter two laws in Lithuania and Latvia that have been criticized for such “deflective negationism.” The aim is, however, not so much to discuss the ways in which these laws contributed to a legally imposed re-writing and re-presentation of history in the societies of these countries. Rather, my intention is to closely scrutinize the political and public debates that accompanied these legislative acts in order to provide a more nuanced understanding of how European (or Western) norms where understood and appropriated in the radically different historical and political contexts of the Baltic region. Moreover, where these already exist, I will discuss first instances of case law and prosecutorial activities that may reveal more about how these laws are being interpreted, the effect they may have on issues of free speech and open historical discourse, that is, about powerful indicators for the state of 5  Mark Santora, “Poland’s ‘Death Camp’ Law Tears at Shared Bonds of Suffering with Jews,” The New York Times, February 6, 2018. 6  Volha Charnysh and Evgeny Finkel, “Rewriting History in Eastern Europe,” Foreign Affairs, August 14, 2018, www.foreignaffairs.com/articles/hungary/2018-02-14/ rewriting-­history-eastern-europe, accessed December 20, 2020. 7  Uladzislau Belavusau and Anna Wójcik, “The Polish memory law: When history becomes a source of mistrust,” New Eastern Europe, February 19, 2018, neweasterneurope. eu/2018/02/19/polish-memory-law-history-becomes-source-mistrust/, accessed December 1, 2020. Confronted with such an onslaught of international criticism, the Polish Sejm later decided on a partial revocation of the law and removed the respective provision that banned any “accusation of the Polish nation” (Klaus Bachmann, Civil Law and the Amendment of German and Polish Memory Laws. In Responsibility for negation of international crimes (Warsaw: Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2020) 167–178. 8  Nikolay Koposov, Memory Laws, Memory Wars. The Politics of Memory in Europe and Russia (Cambridge: Cambridge UP, 2017).

170 

E.-C. PETTAI

liberal democracy in these countries. This analysis in turn helps us to place the Baltic laws on negationism more carefully into the wider European context of punitive memory laws.

Identifying Different Categories of Punitive Memory Laws in Europe The scholarly literature about memory laws in Europe has flourished in recent years. Laws on negationism are no longer discussed solely by legal experts; they have increasingly become the subject of inquiry also by historians and political scientists studying memory and identity politics.9 The emerging, multi-disciplinary discussion has increased our awareness not only about the multiple ways in which the state can interfere in public debate and “govern” collective memory by way of law; it has also revealed the necessity to more clearly conceptualize the phenomenon that we talk about.10 Indeed, states use the regulatory power of the law quite frequently to shape public perceptions and narratives about the past, be it through archival or education policy or by instituting official remembrance days and commemorative institutions and symbols. This form of state intervention may be criticized, but it is perfectly legitimate. It is a state’s prerogative to determine some sort of official narrative of the past that can serve as frame of reference for the citizenry.11 It is the degree to which these state regulations and practices are subject to continuous negotiation and revision that provides us with a potent indicator for assessing the state of liberal democracy in any given country. Laws that go beyond regulating the representation of history in the public sphere by way of declaration or procedural laws, but actually 9  Law and Memory: Towards Legal Governance of History, Uladzislau Belavusau and Alexandra Gliszczynska-Grabias, eds. (Cambridge: Cambridge UP, 2017); Nikolay Koposov, Memory Laws, Memory Wars. The Politics of Memory in Europe and Russia (Cambridge: Cambridge UP, 2017); Criminalizing history: Legal restrictions on statements and interpretations of the past in Germany, Poland, Rwanda, Turkey and Ukraine, Klaus Bachmann and Christian Garuka, eds. (Berlin: Peter Lang, 2020); Responsibility for negation of international crimes, Parysja Grzebyk, ed. (Warsaw: Wydawnictwo Instytutu Wymiaru Sprawiedliwości, 2020). 10  Eric Heinze, “Beyond ‘memory laws’: Towards a general theory of law and historical discourse,” Law and Memory: Towards Legal Governance of History (Cambridge: Cambridge UP, 2017) 413–433. 11  Grażyna Baranowska and Anna Wójcik, “In defence of Europe’s memory laws,” Eurozine.com, November 6, 2017, www.eurozine.com/in-defence-of-europes-memory-­­ laws/, accessed December 1, 2020.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

171

penalize certain categories of historical speech in public constitute are arguably the most controversial form of state intervention, as they deliberately restrict the possible scope for negotiation and open debate on matters of the past. Regulatory memory laws in this narrow, punitive understanding are what Nikolay Koposov has called “the hard core of memory laws.”12 They are a relatively new phenomenon and they raise important questions about the limits of free speech and the rights of the democratic state to defend its constitutional order by impinging on some of its basic elements. In a comprehensive study on the history of memory laws in Europe and Russia, Koposov traces the origins of these punitive memory laws back to the first Holocaust denial laws in Austria and West Germany in the mid-­1980s, and later in France and other Western-European states.13 He argues that these first acts of criminalizing negationism grew out of postwar anti-fascist legislation and they were meant as a response to resurging racism and anti-Semitism in society. Thus laws against Holocaust denial were originally driven by a “duty to remember” the Holocaust and to protect the memory and dignity of its victims against defamation and denigration. Moreover, linking Holocaust denial to the broader phenomenon of hate speech and anti-constitutional activism provided a further legitimizing frame for presenting denial laws as exceptional, yet necessary measures to prevent the spread of radical right-wing political ideas that undermined the liberal democratic order.14 It was in this legal tradition that the 2008 Framework Decision on combating racism and xenophobia further consolidated the acceptance of memory laws as legitimate legislative measures on the European level. Such a pan-European act had been discussed since the late 1990s, yet earlier efforts to translate this into legally binding European framework legislation had continuously failed to achieve consensus in the European Council due to some member states’ concerns that it would impinge too much on freedom of expression. Equal criticism was voiced again when, in 12  Nikolay Koposov, “Memory Laws: Historical Evidence in Support of the ‘Slippery Slope’ Argument,” Verfassungsblog.de, January 8, 2018, https://doi.org/10.17176/ 20180108-150448. 13  Nikolay Koposov, Memory Laws, Memory Wars. The Politics of Memory in Europe and Russia (Cambridge: Cambridge UP, 2017). 14  Erik Bleich, “The Rise of Hate Speech and Hate Crime Laws in Liberal Democracies,” Journal of Ethnic and Migration Studies 37.6 (2011): 917—934; Roger Smith, “Legislating against genocide denial: Criminalizing denial or preventing free speech?” Univ. of St. Thomas Journal of Law & Public Policy, 128.4 (2010): 128–137.

172 

E.-C. PETTAI

2007, the German presidency to the European Council re-introduced the bill, including a provision on Holocaust denial. The concern grew all the more as the EU now included many new member states from the former communist region, who brought with them their own understanding of criminalizing negationism. In particular, delegates from Central Europe (including the Baltic states) argued that should the new Framework Decision include negationism, this should be expanded not only to Nazi, but also to communist crimes.15 Such expanded denial laws already existed at the time in both Poland and the Czech Republic. They had been established in the late 1990s in the context of post-communist de-communization processes, and they differed radically in both their legal nature and political purpose from their Western European counterparts. Their main objective was to further undergird the political and ideological break with the previous communist regime and to safeguard the nascent democratic institutions from those that promoted totalitarian ideologies by denying, downplaying, or even justifying the crimes of the previous Nazi and communist regimes. These “post-communist memory laws,” as we may call them, were also meant to instill a narrative of anticommunism that served as a legitimating foundation for the new political order. Moreover, rather than being aimed against hate speech and racism, laws like the “IPN law” of 1998 in Poland or section 405  in the Czech Criminal Code of 2000 signaled a specific post-­ communist perspective according to which Nazi and communist regime crimes (as well as their denial) should be politically and legally treated on equal terms. In their references to often vaguely defined “communist or Soviet crimes,” however, these post-communist memory laws have attracted criticism for abusing the authority of the law to impose simplified historical interpretations and to pursue a dangerous “nationalistic history politics,” embroiled in national symbolism and mythology that is potentially detrimental to democracy.16 Today, a majority of EU member states have, in one form or another, legal provisions on their books that criminalize certain statements about the past. The majority of states have complied with EU recommendations 15  Laure Neumayer, “Integrating the Central European past into a common narrative: the mobilizations around the ‘crimes of Communism’ in the European Parliament,” Journal of Contemporary European Studies 23.3 (2015): 344–363. 16  Nikolay Koposov, “Memory Laws: Historical Evidence in Support of the ‘Slippery Slope’ Argument,” Verfassungsblog.de, January 8, 2018, https://doi.org/10.17176/ 20180108-150448.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

173

to institute these amendments as part of anti-hate speech legislation, thus following the spirit of most Western European memory laws. Moreover, most of these denial laws more or less reproduce the formulations suggested by article 1(c) of the 2008 Framework Decision with regard to the definition of crimes.17 Six member states—among them Hungary, Czech Republic, Slovakia, Poland, Lithuania and Latvia—divert from the latter by going beyond the international statutory crimes and adding crimes committed by the communist regime (often simply called “communist crimes”) in their legal provisions. The 2018 amendment to the Polish memory law constituted a qualitative shift in memory-related (criminal) legislation within the European Union that is worth spelling out. In fact, I would suggest that the (later partially retracted) IPN law of January 2018 belongs to another distinct category of punitive memory laws in Europe altogether. As can be seen in Table 7.1, these laws differ from both anti-hate speech and anti-­communist memory laws in that they are no longer concerned with the dignity of the victims of past state crimes, nor do they aim to protect democratic institutions from extremist talk. In fact, memory laws that belong in this category have so far mostly occurred outside the EU and in states with struggling or non-existing democratic institutions such as Turkey, Ukraine, and Russia.18 While some of these memory laws, like the Ukrainian law No. 2538-1 “On the legal status and honoring of fighters for Ukraine’s independence in the 20th century,” are still framed as part of decommunization,19 the context in which these laws have been adopted is no longer one of anti-communist memory politics. Instead, these “anti-­liberal memory laws,” as we may call them here, are rooted in an authoritarian 17  Article 1c of the 2008 Framework Decision reads as follows: “Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: /…/ publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.” (EC Framework Decision 2008/913/JHA.) 18  Uladzislau Belavusau and Anna Wójcik, “The Polish memory law: When history becomes a source of mistrust,” New Eastern Europe, February 19, 2018, neweasterneurope. eu/2018/02/19/polish-memory-law-history-becomes-source-mistrust/, accessed December 1, 2020. 19  Oxana Shevel, “Decommunization in Post-Euromaidan Ukraine. Law and Practice,” PONARS Eurasia Policy Memo, January 2016.

174 

E.-C. PETTAI

Table 7.1  Categories of punitive memory laws in Europe

(legal/ political/ discursive) Origin

Objectives

Anti-hate speech memory laws

Anti-communist memory laws Anti-liberal memory laws

Postwar anti-fascist legislation and fear of resurgent anti-Semitism and racism; Duty to remember the Holocaust To protect memory/dignity of victims of past state crimes (minority); To combat racism, anti-Semitism, and right-wing extremism; To defend the constitutional order of the liberal democratic state

Post-1989 dismantling legal, political and representational legacies of Communism (De-communization); Duty to remember the Stalinist crimes

Authoritarian mind-set of state leaders and need for legitimization; Discourse of external and internal threats to the nation

To protect memory/dignity of victims of past state crimes (majority/minority); To enforce the notion of equal legal treatment of both Nazi and Communist-era mass crimes; To defend an official anti-communist narrative

To enforce a myth of national heroism/ victimhood and defend perpetrators of state crimes against critical scrutiny; To protect ‘the nation’ from the influence of liberal ideas of pluralism and open historical discourse

turn of government that draws legitimacy from a rhetoric of “defending the nation” against perceived threats from liberal ideas about pluralism and open, (self-)critical historical discourse. By penalizing criticism of certain glorified national groups or of state actions, these laws effectively protect perpetrators of past state crimes and directly silence any voices that dissent from the officially propagated readings of the past.

Placing Baltic Memory Laws in Context The Baltic states make for an interesting selection of cases to study in this context. They share a history of Soviet-era repression, of rigorous post-­ Soviet de-communization processes and a widespread anti-communist political consensus since 1991, when they regained independence from the Soviet Union. Different from  Poland or the Czech Republic, both Latvia and Lithuania adopted punitive memory laws only rather late, in the aftermath of the EU Framework Decision on combating hate speech

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

175

and xenophobia. Thus the context of their institution and the political debates that preceded and accompanied these acts to criminalize negationism, both on the domestic and European levels, make them interesting cases to discuss against the backdrop of the proposed framework of different punitive memory laws. It is worth noting that the third Baltic state, Estonia, has, to this date, not seen the need to transpose the EU Framework Decision and has otherwise no law on denial on its books. It was therefore not included in this study.20 In order to understand the legal and political origins of Latvian and Lithuanian memory laws, a brief recourse to the period of regime change is necessary. From the late 1980s onwards, the anti-Soviet social movements of the three Baltic Soviet republics based their claims to full state independence not simply on notions of freedom from state repression, but also on claims that were rooted in international law. After Mikhail Gorbachev and the entire Soviet administration officially acknowledged in 1989 the existence of the secret protocols of the 1939 Hitler-Stalin Pact, Baltic independence activists could legitimately proclaim their countries as de iure still independent states illegally under occupation by the USSR. The events of summer 1940, when the three then neutral states were first occupied by the Soviet army and then annexed to the Soviet Union, were declared an act of foreign aggression, followed by an almost 50-year-long occupation in clear violation of international law.21 This legal continuity paradigm, which was recognized by the international community (including Russia at the time), is relevant for the discussion here in that it formed a strong legitimizing framework for rebuilding the democratic states; it also charted the direction of subsequent criminal law and jurisdiction. In all three states, the fledgling judicial systems started to prosecute still living perpetrators of Stalin-era mass crimes against local populations—including mass-scale deportation of civilians and extra-judicial killings—for crimes against humanity and war crimes 20  Explaining Estonia’s outlier position with regard to punitive memory laws could be an interesting exercise, which would probably have to take previous legislation on history and memory as well as the broader legal culture with regard to restricting constitutional freedoms into account. Yet such an analysis clearly falls outside the scope of this article. 21  Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR: A Study of the Tension Between Normativity and Power in International Law (Amsterdam: Martinus Nijhoff, 2003).

176 

E.-C. PETTAI

according to international norms. Lithuanian courts went even further and used a broadened definition of the crime of genocide in the amended national Criminal Code to convict several dozen former Soviet security operatives for killing anti-Soviet armed partisans after the end of World War II for genocide. The latter legal practice has been controversially debated both among Lithuanian legal experts and courts as well as by the European Court of Human Rights (ECtHR).22 However, the classification of the Stalin-era deportations of tens of thousands of Baltic civilians to the Gulag and Siberian exile as crimes against humanity has been confirmed in several instances by the ECtHR.23 Apart from criminal jurisdiction, all three states firmly institutionalized an anti-communist narrative of national victimization and resistance through numerous non-punitive legal acts to rehabilitate and compensate the victims of Stalinist crimes, to provide recognition and commemorate, but also to repeatedly condemn the criminal character of the past regime and to sanction those who conspired with it.24 These various activities have frequently drawn protest and criticism especially from Moscow, where under Vladimir Putin’s second term as president, the politics pursued by the Kremlin have turned towards revising existing narratives of Stalin’s rule and Soviet conduct during World War II. Among other changes, this revision includes an open questioning of the illegal character of the 1940 occupation of the Baltic states, a downplaying of Stalinist atrocities and a re-interpretation of the events of 1989–1991 together with repeated talk by Russian Federation officials about the Baltic region as a legitimate sphere of Russian influence today.25 Quite convincingly, Koposov has argued that Putin’s “neo-imperialist ambitions” and historical revisionism after 2004 have intensified “memory 22  Nina Bruskina, “The Crimes of Genocide Against the Lithuanian Partisans. A Dialogue Between the Council of Europe and the Lithuanian Courts,” European Papers 5.1 (2020): 137–159. 23  Eva-Clarita Pettai, “Prosecuting Soviet genocide: comparing the politics of criminal justice in the Baltic states,” European Politics and Society 18.1 (2017): 52–65; Lauri Mälksoo, “The European Court of Human Rights and the Qualification of Soviet Crimes in the Baltic States,” Human Rights Law Journal 39.1–12 (2019): 19–22. 24  For a complete overview and discussion of Baltic transitional and retrospective justice politics after 1991, see Eva-Clarita Pettai and Vello Pettai, Transitional and Retrospective Justice in the Baltic States (Cambridge: Cambridge UP, 2015). 25  Dina Khapaeva, “Triumphant memory of the perpetrators: Putin’s politics of re-­ Stalinization,” Communist and Post-communist Studies 49.1 (2016): 61–73.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

177

wars” across the region.26 On the level of national politics, he draws a link between bilateral memory disputes and local attitudes vis á vis regulating public historical discourse by way of criminal law. The Baltic preoccupation with the Soviet past also drew criticism from Western governments and organizations, who saw this as diverting attention from uncomfortable questions regarding the collaboration, in particular by Lithuanian and Latvian inhabitants, in the round-up and murder of Jews during the roughly three years of Nazi occupation from 1941 to 1944. Much has been written about these disputes and Baltic responses to them.27 To be sure, Baltic governments have been reluctant to address issues of local collaboration and complicity in the mass killing of local and European Jews during World War II with the same vigor that they showed in pursuing justice for Soviet-era crimes. At the same time, the force with which Western governments and international organizations pushed the young Baltic democracies towards confronting the Holocaust had rather counterproductive effects, in large part because they occurred at a time (during the 1990s) when these societies felt urgently the need to reveal and assess the enormity of Stalinist crimes against the local populations. The insistence by Baltic actors to define Stalin’s crimes in the Baltics as genocide, and the repeated lobbying for the criminalization of both totalitarian regimes on equal terms on the EU level can be traced back to these earlier debates over Baltic Holocaust remembrance.28 As we will see in the analysis of political debates surrounding the denial laws in Latvia and Lithuania, the notion of “equal legal treatment” of the legacies of both totalitarian regimes was, indeed, a strong motive in the negotiations over criminalizing negationism.

26  Nikolay Koposov, Memory Laws, Memory Wars. The Politics of Memory in Europe and Russia (Cambridge: Cambridge UP, 2017) 160. 27  Tatiana Zhurzhenko, “The geopolitics of memory,” Eurozine, May 10, 2007, www. eurozine.com/the-geopolitics-of-memory/, accessed January 3, 2021; Eva-Clarita Pettai, “Negotiating History for Reconciliation: A Comparative Evaluation of Baltic Presidential Commissions,” Europe-Asia Studies 67.7 (2015): 1079–1101; Philippe Perchoc, “European memory beyond the state: Baltic, Russian and European memory interactions (1991–2009),” Memory Studies 12.6 (2019): 677–698. 28  Eva-Clarita Onken, Demokratisierung der Geschichte in Lettland. Staatsbürgerliches Bewusstsein und Geschichtspolitik im erste Jahrzehnt der Unabhängigkeit (Hamburg: Krämer, 2003).

178 

E.-C. PETTAI

Criminalizing Denial: Memory Law in Lithuania The initial draft of a law that would introduce, for the first time, the crime of negationism into Lithuanian criminal law was proposed by conservative members of the Seimas in 2009 as a necessary step to comply with EU legislation. This draft law proposed penalizing the “public approval, denial or condoning” of genocide and crimes against humanity recognized by international courts and the Republic of Lithuania, “if such acts could incite violence or hatred against a person who has suffered genocide, a crime against humanity or a person or group of persons in a war crime.”29 In its wording, the provision thus relatively closely followed EU recommendations, yet it was met with considerable opposition by both parliamentarians of different ideological backgrounds and academics concerned with freedom to research and debate controversial historical issues. Members of the oppositional Social Democrats and the ruling national-­ conservatives called the law a “politization of history”30 and warned, “this comes very close to political persecution.”31 It thus took a second attempt a year later, and heated debates inside and outside parliament in the meantime, until a re-drafted memory law was finally passed in June 2010. The phrasing of this law responded to the earlier criticism in so far as it defined the subject of denial more carefully and further specified the criteria for when a statement should be punished. Thus, the full text of Article 170.2 reads as follows: He or she who publicly endorses the crime of genocide and other crimes of humanity or war crimes, established by the Lithuanian Republic laws, acts of the European Union, final (effective) decisions of the Lithuanian courts or decisions by international courts, denies or grossly diminishes such crimes, if it was committed in a threatening, abusive or insulting manner or resulted in disturbance of public order; also if he or she publicly endorses the aggression of USSR or Nazi Germany against Lithuania as well as genocide crime or other crimes against humanity and war crimes committed by USSR or 29  Lietuvos Respublikos Baudžiamojo kodekso papildymo 170(2) ir 284(1) straipsniais ir priedo papildymo i ̨statymo Projektas, No. 87-3663, September 10, 2009, Vilnius. 30  Cited by Eglė Samoškaitė, “Pritari SSRS ar Vokietijos agresijai – sėsi į kalėjimą,” DELFI.lt, September 29, 2009, www.delfi.lt/news/daily/lithuania/pritari-ssrs-ar-vokietijos-agresijai-­­ sesi-i-kalejima.d?id=24294174, accessed December 1, 2020. 31  Cited by Indrė Bungardaitė, “Už SSRS ir nacių agresijos neigima ̨ bausmių nebus,” TV3. lt, November 6, 2008, www.tv3.lt/naujiena/222397/uz-ssrs-ir-naciu-agresijos-neigimabausmiu-nebus, accessed December 8, 2020.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

179

Nazi Germany in the territory of the Republic of Lithuania or against the residents of the Republic of Lithuania, or endorses the serious or grave crimes, committed in 1990–1991, denies or grossly diminishes them, if it was committed in a threatening, abusive or insulting manner or resulted in disturbance of public order—is punishable by a fine, restriction of freedom, or arrest, or imprisonment up to 2 years.32

According to Justinas Žilinskas, especially the repeated reference to the modalities of the denial (highlighted in the quote above), was an effort to put in a series of “safeguards […] in order to strike sufficient balance with the freedom of expression.”33 While legally speaking these “safeguards” may place the Lithuanian law in the tradition of other laws on negationism aimed at combatting hate-­ speech and extremist talk, from a historical perspective the wording of the law is problematic. As Koposov notes, the law shows clear prioritization of Soviet over Nazi crimes and deflects questions regarding “the Lithuanians’ own responsibility for crimes perpetrated.” According to him, the Lithuanian memory law of 2010, therefore, is “an extreme example of the tendency to use memory laws to promote national narratives and shift the blame for crimes against humanity to others, namely Nazi Germany and especially the USSR.”34 The phrasing of the law does, indeed, raise interesting questions about the extent to which law can re-write history. However, accusing Lithuanian lawmakers of historical revisionism solely on the basis of the law’s wording falls short of grasping the full range of political motivations and intentions behind the criminalization of negationism in the Lithuanian context. To be sure, during the debates over this legislation some conservatives suggested going even further and also penalizing the “slandering of participants in the Lithuanian Freedom Fighters’ Movement and volunteer soldiers, who fought in the years 1944–1953 against the Soviet occupation.”35 Such an addition to the denial law would have clearly moved Lithuania closer to the 2018 Polish, and earlier Ukrainian,  LR Baudžiamojo Kodekso, 2010, emphasis mine.  Žilinskas, “Introduction of ‘crime of denial’,” 321. 34  Nikolay Koposov, Memory Laws, Memory Wars. The Politics of Memory in Europe and Russia (Cambridge: Cambridge UP, 2017) 174. 35  Eglė Samoškaitė, “Pritari SSRS ar Vokietijos agresijai  – sėsi i ̨ kalėjima ̨,” DELFI.lt, September 29, 2009, www.delfi.lt/news/daily/lithuania/pritari-ssrs-ar-vokietijos-agresijai-­­ sesi-i-kalejima.d?id=24294174, accessed December 1, 2020. 32 33

180 

E.-C. PETTAI

legislation in their effort to protect ‘the nation’ and national myths of heroism from critical scrutiny. However, other supporters of the denial law argued that for Lithuania to meet its international obligations and ban the denial of genocide was necessary in order to honor “the dignity of the people who have suffered from Nazi and Soviet occupations,” thus mirroring similar laws in the West. This argument also corresponded with other efforts by Lithuanians and other Central Europeans within EU institutions to achieve greater condemnation of Soviet crimes.36 Considered from this angle, the Lithuanian memory law can be seen as falling more into the category of ‘anti-communist memory laws.’ This categorization is reconfirmed by the fact that it stands in a longer tradition of the Lithuanian judiciary to “correct the error” made in international law with regard to the codification of ‘genocide’ and thus achieving international recognition of Stalinist crimes as genocide.37 A final line of argument by those promoting the criminalization of negationism in Lithuania points to the perceived and real threat to the current public and political order posed by Putin’s (memory) “politics of re-Stalinization.”38 Referring to attempts by Russian Federation officials in Lithuania to re-write the story of the Hitler-Stalin Pact, the initiator of the first draft law, conservative MP Vilija Aleknaitė-Abramikienė, was quoted in the media as saying that “if Kremlin ideologists arrive [in Lithuania] after the adoption of this law, then our law enforcement could probably take measures to prevent the humiliation of the Lithuanian nation.”39 The notion of external threat and of denialism as potentially disturbing the public order that is expressed in this argument resonates considering the “information” or “hybrid warfare” that has been going on for many years 36  Delfi.lv, “Konservatoriai vėl siekia bausti už sovietų agresijos neigima ̨,”DELFI.lt/BNS, September 29, 2009, www.delfi.lt/news/daily/lithuania/konservatoriai-vel-siekia-baustiuz-­sovietu-agresijos-neigima.d?id=23997075, accessed December 1, 2020. 37  Rimvydas Valentukevičius, “Nusikaltimų žmoniškumui tyrimo problemos,” Paper presented at the conference Crimes Against Humanity and War Crimes Research Problems (Vilnius: Genocide and Resistance Research Center of Lithuania, 2004); Dainius Žalimas, “Crimes committed by the communist regimes from the standpoint of international legislation: Lithuanian case study,” Paper presented at the international conference The Crimes of Communist Regimes, Prague, February 24–25, 2010. 38  Dina Khapaeva, “Triumphant memory of the perpetrators: Putin’s politics of re-­ Stalinization,” Communist and Post-communist Studies 49.1 (2016): 61–73. 39  cited by Eglė Samoškaitė, “Pritari SSRS ar Vokietijos agresijai – sėsi į kalėjimą,” DELFI.lt, September 29, 2009, www.delfi.lt/news/daily/lithuania/pritari-ssrs-ar-vokietijos-agresijai-­­ sesi-i-kalejima.d?id=24294174, accessed December 1, 2020.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

181

now in the form of Russian social media trolls and cyberattacks on Baltic websites, but also in public statements by Russian Federation government officials.40 Even though these developments have clearly increased after the Ukraine crisis in 2014, concerns over historical disinformation and anti-state agitation promoted by Russia and its allies within Lithuania did obviously inform some of the legislators’ leaning towards criminalizing negationism already in 2010. Discussing Initial Case Law The case against Subotinas, introduced at the beginning of this article, seems to indicate that the court interpreted the law likewise in this “security” vain. Thus, the Vilnius district court argued in its verdict of 2016 that the defendant had “deliberately and in an abusive manner promoted a favorable attitude towards the occupation of Lithuania and hostility towards the existing Lithuanian system and government,” by praising (endorsing) the occupation of Lithuania in 1940 and calling on Russia to “help” Lithuanians today. The court took pains not only to explicate the falsity of the historical claims made by the defendant, but also emphasized the threat to the current political order posed by Subotinas.41 Subotinas’ case was one of only a handful of cases of denialism that have been deliberated in Lithuanian courtrooms since 2010. One other case regarded Holocaust denial, two others pertained to charges of denial of Soviet crimes/aggression. One additional case ended in pre-trial investigations, as not enough evidence was found to charge the accused of denying the Holocaust.42 It is worth examining these cases more closely in order to get a fuller indication of the Law’s interpretation. In one case, Raimondas Pankevičius, a conservative member of the Panevėžys Municipal Council, was accused of having denied the Holocaust during a speech he gave at a public meeting of the Council in 2014, at which representatives of the local Jewish community were also present. In 40  Andris Spruds et al., n.d., “Internet Trolling as a Toll of Hybrid Warfare. The Case of Latvia,” 2015 Report to the NATO Strategic Communication Centre of Excellence (NATO StratCom COE), www.stratcomcoe.org/internet-trolling-hybrid-warfare-tool-case-latvia-0, accessed December 8, 2020. 41  Vilniaus Apygardos Teismas Nuosprendis, Baudžiamoji byla Nr. 1A-309-318/2016 (November 21, 2016), Vilnius. 42  For a more detailed discussion of this case, see Žilinskas, “Introduction of ‘crime of denial’,” 323.

182 

E.-C. PETTAI

a prepared speech he said that “Jews [were] in the Juden Polizei”; that “it was them, who deported Jews and escorted them to shooting places in Paneriai (Ponary). There was even a squad of Jewish SS, which killed 5,000 Jews per day in southern Lithuania.”43 The representatives of the Jewish community of Panevėžys saw this as an insult and an open denial of the Holocaust by implying that Jews had killed each other. Yet, both the City District Court and the Regional Appeals Court acquitted Pankevičius of the charges of Holocaust denial. In its confirmation of the previous ruling, the Regional Appeals Court agreed with the appellants that Pankevičius’ utterances had been deeply offensive and negative towards Jews. Moreover, after consulting with various research institutions, among them the Gaon Jewish Museum, the Regional Court concluded that the defendant had clearly related false historical information. Nevertheless, the court found that he had not, in fact, denied the Holocaust or had the intention to do so. Moreover, the court made it explicit that the undeniable anti-Jewish tone of Pankevičius’ speech did not suffice to declare the statement a threat to the public order and thus qualify as a criminal offense according to article 170.2 of the Criminal Code.44 The third case to be discussed here was also the very first one that was brought to the courts based on the 2010 denial law. In 2011, Algirdas Paleckis, a political activist, journalist and chairman of the Socialist People’s Front (‘Frontas’), had publicly voiced doubts about the established historical version of the Soviet military crackdown of January 1991. In a radio talk-show that discussed the assault of Soviet OMON troops on the TV tower in Vilnius, which killed 14 people and left many more injured, Paleckis claimed that “now it is becoming clear that they were firing at their own.”45 The implication was that rather than having been killed by Soviet security forces, Lithuanians had been killed by Lithuanian provocateurs, a version that had been advanced by Soviet media shortly after the events and was suggested at the time by some Russian sources.46 Another guest on that radio show, MP Kęstutis Masiulis, filed a complaint to the prosecutor’s office, thus initiating pre-trial investigations against Paleckis and his organization on charges of denying the Soviet aggression against the Republic of Lithuania in 1991. In the first instance, the court 43  Panevėžio Apygardos Teismas, Nutartis. Baudžiamoji byla 1 A–33–491/2017 (February 7, 2017), Panevėžys. 44  Ibid. 45  cited in Žilinskas, “Introduction of ‘crime of denial’,” 323. 46  Sergey Orlov, “Litva, January 1991: Svoi strelyali b svoich?” Svobodnaya Pressa, January 12, 2011, svpressa.ru/society/article/36914/, accessed December 8, 2020.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

183

acquitted Paleckis, arguing that the statement had not been intended as an insult and that even the precise wording did not constitute a definitive claim, but rather a suggested point of view, and thus could not be classified as denial.47 Upon appeal, however, another court overruled this judgment and found Paleckis guilty of the offense of denying Soviet aggression against Lithuania, and sentenced him to a fine of 10,400 Litas (roughly 3000 Euro). Differently from the previous court, the judge now saw a clear aim by the plaintiff “to deny and grossly downplay the fact of the 1991 aggression and [he] did this in a public and insulting manner.”48 This was also confirmed by the Supreme Court in 2013. This limited case law leaves us with a rather mixed picture. In the “Soviet aggression” cases, the courts seem to have made quite an effort to prove that the denial of Soviet crimes and or glorification of aggression had incited public disorder, or that they were done in a clearly insulting manner, thus justifying the limitation of the plaintiff’s rights to freedom of expression. Indeed, the case of the reversed acquittal of Paleckis, the defendant’s persistent refusal to explain his statement and continued agitation in the media, seems to have influenced the Regional Court’s decision to consider his false representation of the events of 1991 an insult to the victims and a threat to the public order. In the one “Holocaust” case discussed here, however, the courts did not seem to weigh as heavily the broader context of hate speech. Instead, they largely dismissed the prosecutor’s (and the  Jewish community’s) claims that Pankevicius’ statements were part of growing anti-Semitism in the region. Moreover, despite acknowledging that Pankevicius’ statement was done in a rather insulting manner vis à vis the Jewish community, the judges still did not view his statement as constituting a hate crime. Instead, they only assessed whether he actually denied the Holocaust (which he did not) without taking the broader context into account. I will return to this point in the conclusion again.

Criminalizing Denial: Memory Law in Latvia In Latvia, the process of transposing the EU Framework Decision into national criminal law went initially rather smoothly. Without much debate, in 2009 the Saeima passed an amendment to the criminal code that would  Žiliniskas, 2012, 324.  Cited in “Algirdas Paleckis found guilty of denying Soviet aggression,” 15min.lt/BNS, June 12, 2012, www.15min.lt/en/article/in-lithuania/algirdas-paleckis-found-guilty-of-­­ denying-soviet-aggression-525-225836, accessed December 1, 2020. 47 48

184 

E.-C. PETTAI

include a new provision 74.1 on “acquittal of genocide, crimes against humanity and war crimes” stipulating that [F]or a person who commits public glorification of genocide, crime against humanity, crime against peace or war crime or public denial or acquittal of committed genocide, crime against humanity, crime against peace or war crime, –– the applicable punishment is deprivation of liberty for a term of not exceeding five years or temporary deprivation of liberty, or community service, or a fine.49

Similar to the Lithuanian case, for some legislators the law was yet another opportunity to get the international community to acknowledge that “the term ‘genocide’, as defined by the UN Convention is incomplete and that it hinders our move towards […] the international condemnation of totalitarian communism,” as former Latvian Foreign Minister and then MP Sandra Kalniete proclaimed during debate in parliament (Kalniete, Saeima stenogramma, 13.03.2008). This statement needs to be seen in the wider legislative context at the time, as the Latvian parliament had only recently passed a (legally non-binding) declaration in which it had called the 1930s Holodomor a “genocide, intentionally carried out by the Soviet regime against the Ukrainian people.”50 For some legislators, this aim was obviously not sufficiently expressed in the wording of the 2009 law. Therefore, they proposed an amendment that would explicitly mention the two regimes that had perpetrated genocide, crimes against humanity and war crimes, namely the USSR and Nazi Germany. In May 2014, Article 74.1 was amended to read as follows: For public glorification of genocide, crimes against humanity, crimes against peace and war crimes or public glorification, denial, acquittal or gross trivialization of committed genocide, crimes against humanity, crimes against peace and war crimes, including genocide, crimes against humanity, crimes

 Criminal Law of the Republic of Latvia (1998, amended 2013). Official Translation, available at www.legislationline.org/documents/section/criminal-codes, accessed December 1, 2020. 50   Anhelita Kamenska and Ilze Brands-Kehris, Combating Hate Crimes in Latvia: Legislation and Police Practice (Riga: Latvian Centre for Human Rights, 2008) 40. 49

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

185

against peace and war crimes perpetrated by the USSR or Nazi Germany against the Republic of Latvia and its inhabitants.”51

An earlier draft bill that also included the words “Soviet aggression” as a subject of denial, similar to the Lithuanian law of 2010, was postponed. Yet otherwise, the amendment resembled its Lithuanian counterpart in that it attributed the perpetration of crimes to forces outside the country—the Soviet Union and Nazi Germany. However, differently from the Lithuanian version, neither the 2009 law, nor its amendment of 2014 laid out the criteria under which denial was to be seen as a criminal offence— that is, whether it was done to incite hatred or to cause public disorder, as the EU Framework Decision prescribed it. Thus, even though the law was justified, at least initially, with the need to transpose EU legislation to combating hate speech and xenophobia, the central criteria for defining denialism as hate speech did not appear in the final law itself. From a formal point of view, the Latvian memory law thus resembles more closely the other ‘anti-communist memory laws’—like those in Poland and Czech Republic—that have no built-in safeguards to balance anti-hate speech law with rights to freedom of expression. In Latvia the disputes over the legacies of the Soviet past run, more than in Lithuania, along ethnic lines, between the majority of Latvians on the one hand and a sizable Russian minority population on the other hand. While Latvia has come a long way since 1991 in terms of integrating its multi-ethnic population in both socioeconomic and political terms, divisions remain irreconcilable when it comes to the interpretation of the Soviet period in Latvia as an occupation—a term and notion that is strongly rejected by a majority of Russian-speakers.52 The political integration of Russians in Latvia’s democratic system led over the years to the emergence of several Russian minority parties that eventually merged in 2005 to form the Harmony Centre. This strong, yet eternally oppositional fraction in the Latvian parliament has taken the dispute over divergent historical narratives of Soviet rule in Latvia straight into the center of 51  Latvijas Republikas 11. Saeimas sēdes 2. un 3. lası ̄jums, stenogramma, May 15, 2014, available at: titania.saeima.lv/LIVS11/saeimalivs11.nsf/webSasaiste?OpenView&restricttoc ategory=749/Lp11, accessed December 1, 2020. (originally: Latvijas Republikas Krimināllikums, 2016), emphasis mine. 52  Mār tin ̧š Kaprāns and Andris Saulı ̄tis, “Latvijas sociālās atmin ̧as monitorings,” Presentation of survey data 2017, prezi.com/cs84pdgereae/latvijas-socialas-atminas-­ monitorings/, accessed December 8, 2020.

186 

E.-C. PETTAI

legislative decision-making of the democratic state. This move was already demonstrated during the debates on the first memory law of 2009, when members of the Russian opposition criticized the bill as a thinly veiled attempt by Latvians to ban the denial of the “so-called occupation fact,” as one MP put it during the March 2009 plenary debate.53 The events that unfolded in spring 2014 in Crimea and Eastern Ukraine certainly fed into these debates and aggravated fears of Russian interference in domestic affairs. The illegal annexation of Crimea had sent shockwaves through the Baltic societies, where memories of the 1940 Soviet invasion and occupation of the Baltic states re-emerged in public and informed political discourse. Quite closely in tow, Latvian MPs worried in spring 2014 about increasing violence during the annual celebrations of Soviet Victory Day on May 9 in Riga, attended mostly by Russian-speakers. Taking action against participants at those commemorative events had already motivated a ban of Soviet symbols in 2013.54 MPs were also concerned about a number of incidents where public figures had called the 1949 mass deportations of thousands of Latvian civilians, including women, the elderly and children, as merely a re-settlement measure in accordance with the state law at the time; or where these same deportations had been portrayed as aimed against fascist collaborators. In particular, one such incident had attracted considerable public attention and led to the first criminal investigation on the basis of article 74.1, which was initiated in summer 2013 against the last Soviet-era Communist Party chairman and (at the time) Latvian member of the European Parliament, Alfreds Rubiks. In a widely distributed interview, he had said that the repressive policies of 1949 “can be evaluated in not just one way” [nevar vērtēt viennozīmīgi], that they had been directed “against many people who deserved it for their collaboration with the fascists.” In January 2014, however, the Latvian authorities dropped the case due to a lack of sufficient evidence for a criminal offense pursuant to article 74.1. Even though they acknowledged that Rubik’s claims had been historically wrong, his statement was seen as sufficiently ambiguous as to not justify the overruling of his rights to freedom of speech.55 These conclusions were obviously  Buzajev, Saeima stenogramm, March 5, 2009.  Clarita Pettai and Vello Pettai, Transitional and Retrospective Justice in the Baltic States (Cambridge: Cambridge UP, 2015) 164. 55  “Drošı ̄bas policija izbeigusi kriminālprocesu par Rubika izteikumiem par 1949.gada represijām,” NRA.lv/LETA, January 9, 2014, nra.lv/latvija/politika/109193-drosibas-­ policija-izbeigusi-kriminalprocesu-par-rubika-izteikumiem-par-1949-gada-represijam.htm, accessed December 1, 2020. 53 54

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

187

not shared by some Latvian MPs, who were intent on taking more decisive action against not only Rubiks, but also against some of the mostly Russian-speaking commemorators on May 9.56 Indeed, for the supporters of the amendment, any denial, justification, or banalization of the Soviet occupation and subsequent state crimes against the local population constituted an “act against Latvia.” In their eyes, this was insufficiently reflected in the earlier wording of the law and was justification enough to allow the state to interfere in free speech.57 Especially during the final reading of the amendment in May 2014, the deep historical divisions among parliamentarians were once again revealed. Members of Harmony Centre, the only ones who opposed the amendment, took aim not only at its restrictive nature with regard to freedom of expression; they also, once again, rejected the historical interpretation that they saw as implied in the new wording, namely that the USSR committed genocide in the Baltics. This they saw as a highly politically motivated view that was not in accordance with international judicial norms.58 Such remarks in turn compelled Judins, one of the members of the judicial committee and the initiator of the amendment, to remind the opposition of “the fact that Latvia was occupied, that an aggression took place against Latvia, which has been stated not only by the Latvian Constitutional Court, but also by the European Court of Human Rights” and threatened those, who still doubted these facts with a revocation of their parliamentary immunity.59 The amendment was ultimately adopted with the votes of the majority of liberal and conservative factions. The heated exchanges between MPs prior to voting, however, show the strong emotional and political power that history still has in Latvian politics.

56  Seržants, Latvijas Republikas 11, Saeimas sēdes 2. un 3. lası ̄jums, stenogramma, May 15, 2014, available at titania.saeima.lv/LIVS11/saeimalivs11.nsf/webSasaiste?OpenView&restr icttocategory=749/Lp11, accessed December 1, 2020. 57  Judins, Latvijas Republikas 11, Saeimas sēdes 2. un 3. lası ̄jums, stenogramma, May 15, 2014, available at titania.saeima.lv/LIVS11/saeimalivs11.nsf/webSasaiste?OpenView&restr icttocategory=749/Lp11, accessed December 1, 2020. 58  Cilevičs, Latvijas Republikas 11, Saeimas sēdes 2. un 3. lası ̄jums, stenogramma, May 15, 2014, available at titania.saeima.lv/LIVS11/saeimalivs11.nsf/webSasaiste?OpenView&restr icttocategory=749/Lp11, accessed December 1, 2020. 59  Judins, Latvijas Republikas 11, Saeimas sēdes 2. un 3. lası ̄jums, stenogramma, May 15, 2014, available at titania.saeima.lv/LIVS11/saeimalivs11.nsf/webSasaiste?OpenView&restr icttocategory=749/Lp11, accessed December 1, 2020.

188 

E.-C. PETTAI

Criminal Investigations and Public Representation of Cases A number of cases involving article 74.1 have been investigated so far, yet they all ended at the pre-trial stage, which makes it difficult to draw conclusions about the article’s ultimate legal interpretation or its effects on free speech and open historical debate. We have to therefore draw on the way the law and its later amendment were debated by the Saeima, and here Koposov’s assessment seems to be correct in that the law primarily serves as a weapon in an ongoing, mostly domestic and inter-ethnic “memory war” over the interpretation of the Soviet regime. Combating racist talk, anti-Semitism and other hate speech were only indirectly part of the debates surrounding this piece of legislation. In media reports that appeared in connection with criminal investigations against individuals for the potential crimes of denial or gross trivialization of Stalinist crimes, hate speech and anti-state agitation were, however, central. Thus, statements like those of Alfreds Rubiks or a Riga City Council deputy Alexandrs Gilmans, who trivialized and even justified the mass deportations of the 1940s, are widely perceived as deeply offensive to the victims and survivors of these internationally acknowledged crimes against humanity and as a form of anti-state agitation.60 The case of Aleksandrs Gilmans is indeed telling in this context. In 2012, on request by the Saeima subcommittee for education, he was investigated by the Latvian State Security Police for various published accounts in which he had questioned the tragic nature of the deportations and suggested that Latvians had deported their own people in the 1940s.61 A member of the Russian Party For Human Rights in a United Latvia (PCTVL), Gilmans was already well-known to the state authorities at the time. In 2008, he had been prosecuted (but ultimately acquitted) for hate crimes and anti-state agitation pursuant to section 81 of the Criminal Code (“Invitation to Forcibly Overthrow the State Authority of the Republic of Latvia and Forcibly Change the Political System”), as a result of statements published on a school website in which he had declared Latvia to be a “totalitarian state” which should be liquidated.62 60  “Lindermans aicina pārpublicēt Gil ̧mana rakstu, tā protestējot pret kriminālprocesa sākšanu,” Nra.lv/LETA, July 2, 2012, nra.lv/latvija/75035-lindermans-aicina-parpublicetgilmana-­rakstu-ta-protestejot-pret-kriminalprocesa-saksa.htm, accessed December 1, 2020. 61  Ģirts Zvirbulis, “Lūdz Drošı ̄bas policijai pārbaudı ̄t Gil ̧mana rakstu,” Latvijas Avize, June 12, 2012, www.la.lv/ludz-drosibas-policijai-parbaudit-gilmana-rakstu-2/, accessed January 2, 2020. 62  “Attaisno par naida kurināšanu apsūdzēto Giļmanu,” DELFI.lv/LETA, June 5, 2008, www.delfi.lv/news/national/criminal/attaisno-par-naida-kurinasanu-apsudzetogilmanu.d?id=21118218, accessed December 2, 2020.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

189

Thus, the question needs to be asked whether the current geopolitical situation and specific political constellations of contemporary Latvia suggest a more lenient interpretation of the law as a legitimate state measure in defense of the current political order. Denying the illegal (and criminal) foundations of the Soviet regime in the Baltics (by way of denying or justifying Stalinist mass crimes and Soviet aggression against the Baltic states and populations) puts the legal continuity paradigm into question and with it a core legitimizing narrative of the Latvian state in its current form. This was very much the understanding that informed the decision of a majority of Latvian lawmakers in favor of the amendment. Yet, the amendment never fully spelled out the anti-hate speech purpose of the law, nor did it clearly formulate the conditions under which denialism would become a punishable offense. Ultimately, these legal ambiguities clearly contributed to the fact that no case has so far been seriously pursued or has even made it to the courts.

Conclusions Any state regulation that criminalizes certain historical statements is deeply problematic when we consider an open and diverse public debate about painful and uncomfortable aspects of human actions in the past, and their importance to liberal democracy. Yet in the past decades, several so-called denial laws, as well as European framework legislation have suggested that freedom of expression can be restrained where the dignity of victims of genocide and crimes against humanity are at stake. Moreover, where the denial, glorification or gross trivialization of such crimes is used in public to incite hatred against minorities, or to threaten public safety and order, punitive memory laws have come to be seen as a way to actually protect free speech.63 Recent memory legislation, especially in some of the states from the former communist region, have raised doubts regarding the extent to which they actually protect minorities or safeguard against public hate-speech; instead, they appear to criminalize dissenting historical interpretations and to interfere considerably in open debate over a controversial past and free speech. Indeed, balancing between protecting freedom of speech and fighting hate speech remains a difficult task for any judiciary, including or especially those in democratic states.

 Grażyna Baranowska and Anna Wójcik, “In defence of Europe’s memory laws,” Eurozine.com, November 6, 2017, www.eurozine.com/in-defence-of-europes-memory-­­ laws/, accessed December 1, 2020. 63

190 

E.-C. PETTAI

This article has put the spotlight on two memory laws and the debates and jurisdiction that surround them. Both were adopted in former communist states that are now part of the EU, namely Lithuania and Latvia, and they were adopted as part of the last wave of punitive memory laws in the wake of the 2008 Framework Decision on combating racism and xenophobia. This Decision further strengthened the legal acceptance of criminalizing negationism across Europe, yet it also urged EU members to consider this legislation as part of combating hate crimes and “to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting”64 in order to safeguard important constitutional rights. Of the two laws discussed here, only the Lithuanian included the respective formulation in the final law—and only after considerable debate. Latvian legislators by contrast did not discuss issues of protection of free speech at all. Moreover, unlike their Lithuanian colleagues, Latvian lawmakers did not include any specification as to the legal definition of the crimes (i.e. references to the Statutes of the International Criminal Court (ICC) or other international conventions) in the final phrasing of the law, again, despite EU recommendations and vehement criticism of this point by the parliamentary opposition. This absence, however, leaves considerable room for historical interpretation and legal insecurity. In conceptual terms, moreover, it places the Latvian memory law more in the category of ‘anti-communist memory laws’ than its Lithuanian sibling. This impression is confirmed when we look into how the law was debated in the Latvian parliament, where any criticism about the law’s lack of safeguards vis à vis free speech was responded to with historical arguments, insinuating that those who were concerned about freedom of expression where in fact denying the historical fact of Soviet crimes and Latvia’s illegal occupation. Even though the debates also show that such revisionist views are, indeed, present among some of the representatives of Russian minority parties, Latvian MPs’ quick dismissal of, in fact, reasonable legal arguments against the phrasing of this law are equally problematic. The purpose of this law also  becomes apparent when we consider that, according to Latvian law enforcement officials, there was no need to amend the original law of 2009. Thus the 2014 amendment was foremost 64  European Council (EC) Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, 2008/913/JHA, Brussels, November 28, 2008.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

191

politically motivated: to respond to Russian revisionist agitation and, at the same time, to make once again the point vis à vis Western Europe that both Nazi and Stalinist crimes should be considered on equal legal terms. Both laws are problematic in their representation of history. Not only do they suggest that all guilt and responsibility for past regime crimes lie with Nazi Germany and the USSR, thus deflecting notions of local (national) wrongdoing under foreign criminal regimes; the analysis of public debates that surround cases of historical denial or gross trivialization of Stalinist era mass crimes and/or Soviet aggression also show the potential danger of these laws to be misused in domestic “memory wars.” In this sense, Koposov is absolutely correct when he warns that these laws may well play into the hands of those who question the values of democracy and the rule of law.65 In Latvian public debates, the crime of denial is clearly linked to the long-standing conflict over divergent historical narratives and memories regarding the Soviet regime that divides Latvia’s society along ethnic lines. Latvian politicians and the media are rather quick to present statements that justify, downplay or ridicule Stalin-era mass crimes not only as denigrating the victims of Stalinism, but as an expression of disloyalty with, or even an attack on the Latvian state and political order. Cases like that of Gilmans show that anti-Latvian sentiments are strong among some minority representatives, even to the extent that they question the legitimacy and legal foundations of the state itself. Yet the danger such sentiments pose towards the current political order has been difficult to prove in court and the denial law will not make this an easier task. Instead, it could simply serve to aggravate anti-Russian sentiments in the Latvian population and to prevent the emergence of a more constructive historical dialogue among the inhabitants of Latvia. The recent developments in Lithuanian public debates over issues of history and memory, especially with regard to the legacy of the postwar anti-Soviet national partisans, leave an equally ambivalent impression. According to some observers, the Ukraine crisis led to an increase in anti-­ Russian security rhetoric in the Lithuanian public, which has also spilled over into the field of public memory and historical debate. This concerns in particular the representation of the postwar anti-Soviet insurgent movements as national heroes and the predecessor of the Lithuanian armed 65  Nikolay Koposov, “Memory Laws: Historical Evidence in Support of the ‘Slippery Slope’ Argument,” Verfassungsblog.de, January 8, 2018, https://doi.org/10.17176/ 20180108-150448.

192 

E.-C. PETTAI

forces today. Yet the national partisans as a highly politicized trope of historical controversy existed long before recent Russian actions, as exemplified by the fact that some legislators proposed as early as 2009 to ban any criticism (slandering) of national partisans as part of the denial law. Among the Lithuanian public today, any criticism of the insurgent movement is met with considerable public indignation and individuals who dare to point out that national partisans committed crimes against civilians or that there were Nazi collaborators among them face considerable public acrimony and even negative consequences for their professional lives.66 But this happens outside the law. So far, there is no law that makes it possible to prosecute individuals who deconstruct myths of national heroism or victimhood in either Lithuania or Latvia. In this sense, both memory laws still fundamentally differ from what I have conceptualized as ‘anti-­ liberal memory laws.’ Yet this should not divert our attention from the fact that these memory laws are built on and further contribute to the institutionalization of a narrative that leaves no room for historical complexity and ambiguity. Critical questions about local collaboration and complicity with foreign powers, or questions  about crimes committed by national heroes—though not legally proscribed—are nevertheless strongly discouraged. It remains to be seen how exactly memory laws will end up being interpreted by prosecutors and courts in the longer term. The first handful of cases that already exist hint at the highly problematic character of these laws both from a legal and political perspective. The analysis of case law in Lithuania illustrates that the courts take a rather more cautious approach and usually take pains to prove the criteria named in the law to define a given statement as threatening or insulting, or as disturbing public order. The limited jurisdiction on article 170.2 does show a bias towards taking a harsher stance on cases of denial or glorification of Soviet crimes than similar offences with regard to the Holocaust. Without wanting to jump to premature conclusions given the extremely small number of cases discussed in this article, it is striking how much more leniently the court ruled with regard to obvious anti-Jewish hate speech and open distortion of the Holocaust history in the Pankevičius case as opposed to the two cases of denial of Soviet aggression against Lithuania (in 1940 and 1991). 66  Violeta Davoliūtė, “Heroes, Villains and Matters of State: The Partisan and Popular Memory in Lithuania,” Cultures of History Forum, November 17, 2017, https://doi. org/10.25626/0078.

7  PROTECTING MEMORY OR CRIMINALIZING DISSENT… 

193

This interpretation certainly fits within the broader public and political discourse of recent decades, which tends to avoid openly addressing questions of anti-Semitism and historical co-responsibility for the fate of Lithuania’s Jewish population during World War II. However, it does not say much about the extent to which the current memory law may or may not restrict freedom of speech or stifle open historical discourse. Russia’s current politics vis à vis the former Soviet countries have certainly played a role in the drafting of both memory laws and will continue to influence public and also judicial discourses on the implementation and interpretation of these new provisions. This is arguably more the case in Latvia with its sizable Russian speaking population and strong presence of a “Russian perspective” on the Soviet past than it is in Lithuania. The presence of a neighboring state that pursues an official policy of denial or diminishing of Stalinist crimes in the Baltics does not make things easier for Baltic judiciaries and lawmakers. When we look at the debates that preceded the memory legislation in both states, the potential threat posed by Russia’s re-Stalinization of memory for domestic public order was clearly a more important reason for adopting a denial law than was anti-­ Semitism or racist talk in Baltic societies. On a conceptual level, this once again shows the epistemological distance between these laws and those original denial laws that were adopted in Western Europe; any assessment of the value and effects of punitive memory laws in the former communist region should take this into account.

CHAPTER 8

Criminalizing Denial as a Form of Erasure: The Polish-Ukrainian-Israeli Triangle Omer Bartov

I The enactment of laws criminalizing or penalizing certain versions of the past, and more generally, the struggle over competing historical narratives and the status of victims and perpetrators, national heroes and internal or foreign villains, have become an increasingly prominent feature of the last few decades, both in Europe and in other parts of the world. The predilection to criminalize unwanted or objectionable representations of past events is often related to differing interpretations of the events of World War II and its immediate origins and aftermath, although in some cases, most prominently perhaps the genocide of the Armenians, memory laws

O. Bartov (*) Brown University, Providence, RI, USA © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_8

195

196 

O. BARTOV

stretch back to World War I.1 Such interpretations, in turn, are usually related to the roles played in the war, but also in the pre- and postwar periods, by different national, ethnic, religious, and ideological groups, as well as to the political arrangements reached by or imposed on the states that emerged from the conflict. Subsequent changes in official and popular versions of the past and the relevant legislation of historical perspectives have similarly reflected the transformation in the political order—not least since the fall of communism—as well as the emergence of new postwar generations and an ongoing tension between a desire to expose the obfuscations and denials of past wrongs and a no less potent urge to reassert national honor and dignity, even at the price of suppressing or outlawing historical facts that threaten to undermine the favored perception of the nation’s history. Much has been written on this issue in recent years and there is little point in recapitulating it here.2 What interests me in this chapter, rather, is the interdependence of recognition and criminalization of several distinct national discourses. Thus, for instance, in 2006, Ukrainian President Viktor Yushchenko proposed a law that both recognized the Holodomor— the Stalinist state-directed famine in Ukraine—as genocide, and introduced penalties to its denial. To its credit—but also largely because of the fraught internal politics of memory in Ukraine between the pro-Russian (formerly Soviet) east and the pro-nationalist anti-Russian west—the parliament refused to adopt concrete penalties for denial even as it signed into law the following unequivocal statement:

1  The Turkish Penal Code as amended in 2008 states: “Any person who publicly denigrates the Turkish nation, the state of the Turkish Republic, the Grand National Assembly of Turkey or the judicial bodies of the state shall be sentenced to six months to two years of imprisonment.” See Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (New York: Cambridge UP, 2018) 111–112, who argues that this amendment was meant to protect those who deny the Armenian genocide (which is the official position of Turkey) rather than to criminalize its assertion. See also Jahnisa Tate, “Turkey’s Article 301: A Legitimate Tool for Maintaining Order or a Threat to Freedom of Expression?” Georgia Journal of International and Comparative Law 37.1 (2008): 181–217; Bülent Algan, “The Brand New Version of Article 301 of Turkish Penal Code and the Future of Freedom of Expression Cases in Turkey,” German Law Journal 9.12 (2008): 2237–2252. 2  The single best recent study of this entire complex is Koposov, Memory Laws. See also John-Paul Himka and Joanna B. Michlic, eds., Bringing the Dark Past to Light: The Reception of the Holocaust in Postcommunist Europe (Lincoln: Nebraska UP, 2013).

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

197

The 1932–1933 Holodomor in Ukraine is an act of genocide of the Ukrainian people. Public Denial of the 1932–1933 Holodomor in Ukraine shall be recognized as desecration of the memory of millions of victims of the Holodomor as well as disparagement of the Ukrainian people and shall be unlawful.3

The following year, Yushchenko traveled to Israel, where he visited the Holocaust memorial at Yad Vashem as well as the Western Wall, reportedly stating there that his trip was intended “to express identification with the Jewish people and its heritage and to pray in the holiest site of the Jewish people.” In his speech to the Israeli parliament, the Ukrainian president also condemned anti-Semitism, but did not make any apology for the role of Ukrainians in the Holocaust. Conversely, alongside the chairman of the Knesset, Daliah Itzik, Yushchenko condemned the massacre of Ukrainians by Stalin’s regime. For her part, while Itzik stressed that “many Ukrainians are among the righteous of the nations who risked their lives to save Jews,” she also added, “we cannot accept the commemoration of the actions of Ukrainian individuals who, in the course of the national struggle for Ukrainian independence, took part in mass murder of Jews.”4 Ultimately, just as Ukraine did not formally assume any responsibility for collaboration in the Holocaust, Israel did not formally recognize the Holodomor as genocide, apparently one of Yushchenko’s main goals in his visit. In part, Israel’s reluctance to use the “G” word in this context can be attributed to its relations with Russia. Almost a decade later, in 2016, Russia’s deputy ambassador in Tel Aviv, Leonid Frolov, warned Israel against passing a proposed law that would formally recognize the Holodomor as genocide: “This is not a good time to discuss such a proposal,” he said. “It will be bad. It will be (the) wrong step.”5 But beyond the constraints of policy, there clearly was and remains a more profound reason for refusing to take this step. For Israel, recognizing the Holodomor 3  “Law of Ukraine №376–V ‘On Holodomor of 1932–33 in Ukraine’,” canada.mfa.gov. ua/en/ukraine-%D1%81%D0%B0/holodomor-remembrance/holodomor-remembrance-­ ukraine/holodomor-law-ukraine, accessed June 9, 2018. For a slightly different translation, see Koposov, Memory Laws, 189. 4  “Yushchenko Condemns Antisemitism at Knesset Plenum,” November 15, 2007 [in Hebrew], news.walla.co.il/item/1195390, accessed June 9, 2018. 5  Dan Williams, “Russian envoy says Israeli bill on Ukraine’s Stalin-era deaths a ‘wrong step’,” Reuters, February 7, 2018, www.reuters.com/article/us-israel-russia-ukraine/russian­e nvoy-says-israeli-bill-on-ukraines-stalin-era-deaths-a-wrong-step-­i dUSKBN1FR1YW, accessed June 9, 2018.

198 

O. BARTOV

as genocide would put it perilously close to the Holocaust; hence, Ukrainians and Jews might be seen as equal victims. Yet for Israel, not only does the claim of being the answer to the Holocaust serve as its cardinal raison d’être, the insistence on the Shoah as a unique historical event elevates Israel above all other national entities and puts it on a higher moral plane than those who might either reject its existence or even criticize any of its policies. It is precisely for this reason that for Ukraine recognition of the Holodomor as genocide by Israel is of greater importance than by any other state, providing a uniquely powerful stamp of approval by the self-­ proclaimed successor state of the Holocaust. Additionally, especially because of Ukraine’s checkered history vis-à-vis its Jewish inhabitants dating back at least to the widespread massacres of Jews in 1919–1920, if not indeed to the massacres during Bohdan Khmelnitsky’s Cossack uprising of 1648—yet another bifurcated yet constitutive historical narrative of an earlier period—acquiring the status of a fellow genocide victim from the Jewish state would go a long way to redressing a perceived moral imbalance, liberating Ukraine from the ghosts of the past more effectively than could be expected from a more conventional international declaration. In other words, precisely because of Israel’s success in making itself into the universally recognized representative of Jewish victimhood, an official statement by its leaders on the Holodomor as genocide would have ranked as a major accomplishment by a Ukrainian president who was trying to rewrite his nation’s history. Which is, ultimately, exactly why the request was denied. Collective Israeli and Jewish memory had a great deal to do with this as well. For many Jewish survivors stemming from Ukraine, especially from those parts of Eastern Poland that subsequently became postwar West Ukraine, the Ukrainians were “worse than the Germans.” Memories of Ukrainian slaughter of their Jewish neighbors, perpetrated by Ukrainian auxiliary police units under German command, Ukrainian nationalist militias and other paramilitaries, as well as bandits, acquaintances and villagers, fill the testimonies of Jewish survivors.6 The sense of bitterness over betrayal by neighbors, colleagues, and friends, is palpable even decades 6  Omer Bartov, Anatomy of a Genocide: The Life and Death of a Town Called Buczacz (New York: Simon and Schuster, 2018) 158–264; Kai Struve, Deutsche Herrschaft, ukrainischer Nationalismus, antijüdische Gewalt: Der Sommer 1941  in der Westukraine (Berlin: De Gruyter Oldenbourg, 2015); John-Paul Himka, Ukrainians, Jews and the Holocaust: Divergent Memories (Saskatoon, Sask.: Heritage Press, 2009).

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

199

after the event. What complicates matters even further is Ukraine’s post-­ communist veneration of its freedom fighters and liberators, whose cult, especially popular in West Ukraine, concerns mostly the fight against the re-imposition of Soviet rule in the wake of the German occupation in World War II, recently provided with additional fuel by the Russian annexation of Crimea and incursion into Eastern Ukraine.7 The problem with the resurrection of these national heroes’ memory since Ukrainian independence in 1991 is, however, that it also entails the denial or suppression of their darker side, namely, their collaboration with the Germans in the mass murder of the Jews and, no less important in the regional politics of memory, their entirely independent campaign of ethnic cleansing of the Polish population in Volhynia and Galicia.8 From this perspective, then, while Israel might have been in the best position to legitimize the categorization of Soviet crimes in Ukraine as genocide, it simultaneously threatened to hamper the glorification of Ukrainian nationalists precisely because of its self-perception as the main bulwark against Holocaust denial. Indeed, for the State of Israel, the Holocaust exists not only as a past event whose memory must never be denied or erased, but also as the most powerful tool in its arsenal in the constant struggle to legitimize its existence and policies. Before visiting dignitaries sit down to negotiate with Israeli officials, before they perhaps gingerly raise sensitive questions about settlements, occupation, and the treatment of Palestinians, they must first attend Yad Vashem, the state’s official shrine to the Holocaust in Jerusalem. 7  David R.  Marples, Heroes and Villains: Creating National History in Contemporary Ukraine (Budapest: Central European UP, 2007); Per Anders Rudling, “‘The Honor They So Clearly Deserve’: Legitimizing the Waffen-SS Galizien,” The Journal of Slavic Military Studies 26.2 (2013): 114–137; Per Anders Rudling, “The Cult of Roman Shukhevych in Ukraine: Myth Making with Complications,” Fascism 5.1 (2016): 26–65; Per Anders Rudling, “The OUN, the UPA and the Holocaust,” The Carl Beck Papers in Russian & East European Studies 2107 (2011): 1–72; John-Paul Himka, “Debates in Ukraine over nationalist involvement in the Holocaust, 2004–2008,” Nationalities Papers 39.3 (2011): 353–370; Grzegorz Rossoliński-Liebe, “Debating, Obfuscating and Disciplining the Holocaust: Post-­ Soviet Historical Discourses on the OUN–UPA and Other Nationalist Movements,” East European Jewish Affairs 42.3 (2012): 199–241. See also Marco Carynnyk, “Foes of Our Rebirth: Ukrainian Nationalist Discussions About Jews, 1929–1947,” Nationalities Papers 39.3 (2011): 315–352. 8  Bartov, Anatomy of a Genocide, 265–302; Grzegorz Motyka, “Der Krieg im östlichen Galizien,” Karta 30 (2000): 36–37; Timothy Snyder, “The Causes of Ukrainian-Polish Ethnic Cleansing 1943,” Past and Present 179 (2003): 197–234; Mikolaj Terles, Ethnic Cleansing of Poles in Volhynia and Eastern Galicia, 1942–1946 (Toronto: Alliance of the Polish Eastern Provinces, 1993).

200 

O. BARTOV

There, they are forcefully and unambiguously reminded that the entire Jewish people, for which Israel claims responsibility no matter where its sons and daughters may reside, will and must never again become the target of genocide. They are also told in no uncertain terms that all nations of the world must be committed to the defense and the might of Israel because of the guilt they bear for the abandonment of the Jews in World War II.9 And, almost in the same breath, so to speak, the memory of the Nakba, the expulsion of the vast majority of the Palestinians from what became the State of Israel in 1948, is expunged. For one cannot speak about the fate of the Jews and the fate of the Arabs at the same time, and any mention of the Nakba evokes the automatic and officially sanctioned response of “How can you compare?” and is immediately perceived as casting doubt on the very right of Israel to exist, and thereby as in fact promoting another Holocaust.10

II The relationship between Ukraine’s desire for an Israeli stamp of approval over the Holodomor’s status as genocide and Israel’s insistence on the Holocaust as a unique crime in the annals of human history is further complicated by Poland’s similar claims of being the “Christ of nations.” For Poland, the Jewish/Israeli claim of unique victimhood stands not only in competition to its self-perception but also undermines Poland’s victim status by suggesting Polish complicity in the Holocaust. The Polish sense of victimization is further exacerbated both by the fate of the nation in the latter parts of World War II, when Polish residents of Eastern Poland were 9  See, e.g., Tom Segev, The Seventh Million: The Israelis and the Holocaust, trans. Haim Watzman (New York: Hill and Wang, 1993); Gulie Ne’eman Arad, “Israel and the Shoah: A Tale of Multifarious Taboos,” New German Critique 90 (2003): 5–26; Roni Stauber, The Holocaust in Israeli Public Debate in the 1950s: Ideology and Memory, trans. Elizabeth Yuval (London: Vallentine Mitchell, 2007); Yechiel Klar, Yonat Klar, and Noa Schori-Eyal, “The ‘Never Again’ State of Israel: The Emergence of the Holocaust as a Core Feature of Israeli Identity and Its Four Incongruent Voices, Journal of Social Issues 69.1 (2013): 125–143. On the interaction between traumas and politics of memory of the Holocaust and the Nakba, see Bashir and Amos Goldberg, “Deliberating the Holocaust and the Nakba: Disruptive Empathy and Binationalism in Israel/Palestine,” Journal of Genocide Research 16.1 (2014): 77–99; Bashir and Amos Goldberg, eds., The Holocaust and the Nakba: A New Grammar of Trauma and History (New York: Columbia UP, 2018). 10  See, e.g., Shira Stav, “Nakba and Holocaust: Mechanisms of Comparison and Denial in the Israeli Literary Imagination,” Jewish Social Studies 18.3 (2012): 85–98.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

201

subjected to massive ethnic cleansing by Ukrainian nationalists, and by the imposition of a decades-long communist regime often associated with so-­ called Judeo-Bolshevism, or żydokomuna, denoted as Jewish sympathy for the Soviets and complicity in their rule.11 Poland’s memory laws have therefore attempted to confront the conundrum of pre-1989 communist obfuscation, competition of victimhood with the Jews and rejection of any hints of complicity in the Holocaust, and a response to Ukrainian nationalist glorification of its World War II liberation fighters by claims of Ukrainian genocidal actions in the Polish borderlands, precisely those majority Ukrainian lands seen by Ukrainians as sites of Polish colonization and suppression of national aspirations. In 1998, Poland legislated the first memory law in Eastern Europe, stipulating, “He who publicly and contrary to facts contradicts the crimes mentioned in Article 1, clause 1, shall be subject to a fine or a penalty of deprivation of liberty of up to three years.” These were specified as “crimes perpetrated against persons of Polish nationality and Polish citizens of other ethnicity, nationalities in the period between September 1, 1939 and December 31, 1989,” including “Nazi crimes,” “communist crimes,” and “other crimes against the peace, crimes against humanity, or war crimes.”12 As noted by Nikolay Koposov, this law put Nazi and Soviet crimes in the same basket of crimes against humanity, while eschewing any direct reference to the genocide of the Jews, referenced only by the phrase “Polish citizens of other ethnicity, nationalities,” thereby adopting the Soviet 11   See, e.g., Marci Shore, “Conversing with Ghosts: Jedwabne, Zydokomuna, and Totalitarianism,” The Holocaust in the East: Local Perpetrators and Soviet Responses, ed. Michael David-Fox, et al. (Pittsburgh: University of Pittsburgh Press, 2014), 5–28; Paweł Śpiewak, Z ydokomuna: interpretacje historyczne (Warsaw: Wydawnictwo “Czerwone i Czarne,” 2012); Andrzej Zbikowski, U genezy Jedwabnego: Z ydzi na Kresach Północno-­ Wschodnich II Rzeczypospolitej, wrzesień 1939–lipiec 1941 (Warsaw: Zydowski Instytut Historyczny, 2006); Antony Polonsky and Joanna B. Michlic, eds., The Neighbors Respond: The Controversy Over the Jedwabne Massacre in Poland (Princeton: Princeton UP, 2004); Marek Wierzbicki, Polacy i Z ydzi w zaborze sowieckim: stosunki polsko-zydowskie na ziemiach północno-wschodnich II RP pod okupacja ̨ sowiecka (1939–1941) (Warsaw: Stowarzyszenie Kulturalne Fronda, 2001); Jan Tomasz Gross, Upiorna dekada: trzy eseje o stereotypach na temat Z ydów, Polaków, Niemców i komunistów, 1939–1948 (Kraków: TAiWPN Universitas, 1998). 12  “Act of 18 December 1998 on the Institute of National Remembrance –Commission for the Prosecution of Crimes against the Polish Nation (Journal of Laws, 19 December 1998),” www.memoriaabierta.org.ar/materiales/pdf/act_poland_1998_inr.pdf, accessed June 9, 2018. For a slightly different translation, see Koposov, Memory Laws, 161.

202 

O. BARTOV

formula of subsuming the Holocaust under the general category of “crimes against the Polish nation,” a vague definition at best.13 Moreover, definitions of what constitutes such crimes, who committed them, and what are the parameters of denial, have been shifting between the fall of communism and the present day. In 2018, the Polish Parliament passed an amendment to the Act of 1998, which was signed into law by Polish President Andrzej Duda later that year. As the new version states, Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich… or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes— shall be liable to a fine or imprisonment for up to 3 years.

Here, then, not only is denial of Nazi and Soviet crimes against the Polish nation criminalized, but also the assertion that Poles might have been in anyway complicit in Nazi crimes (or other crimes, presumably by communists, although those are not explicitly stated for the obvious reason that the legislators were perfectly aware of the fact that the communist regime in their country was run by Poles). Additionally, and significantly, the law expands both the timeline of crimes committed against the Polish nation and the list of perpetrators. As the revised Article 1 reads, these crimes include the following: Nazi crimes, communist crimes, crimes committed by Ukrainian nationalists and members of Ukrainian units collaborating with the Third Reich, and other felonies that constitute crimes against peace, crimes against humanity or war crimes, committed against persons of Polish nationality or Polish citizens of other nationalities between November 8, 1917 and July 31, 1990.14

As the legislator notes, the law was amended specifically with a view to “protecting the reputation of the Republic of Poland and the Polish Nation,” namely, in order to act against any accusations of Polish complicity in the genocide of the Jews, an issue that became especially heated  Ibid., 161–162.  “Full text of Poland’s controversial Holocaust legislation,” The Times of Israel, February 1, 2018, www.timesofisrael.com/full-text-of-polands-controversial-holocaust-legislation/, accessed June 9, 2018. 13 14

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

203

following the publication in 2000 of Jan Tomasz Gross’s book Neighbors on the massacre of the Jewish inhabitants of the village of Jedwabne by their own Polish neighbors. More recently, Polish officials have become increasingly obsessed with vehemently (and justifiably) rejecting any use of the term “Polish death camps,” as was done most prominently by President Barack Obama in 2012 (for which the administration promptly apologized).15 But the amended law had another intent, generally ignored by Western commentators. This time, the law specifically stated that crimes committed by Ukrainian nationalists and members of Ukrainian units collaborating with the Third Reich constitute acts committed by Ukrainian nationalists between 1925 and 1950 which involved the use of violence, terror or other human rights violations against individuals or population groups. Participating in the extermination of the Jewish population and genocide of citizens of the Second Polish Republic in Volhynia and Eastern Małopolska [Lesser Poland] also constitutes a crime committed by Ukrainian nationalists and members of Ukrainian units collaborating with the Third Reich.16

Hence, the law not only included Ukrainian nationalists, along with the Nazis and the Soviets, as committing crimes against humanity and genocide against the Polish nation, but also viewed accusations of collaboration by Ukrainians in Nazi crimes as legitimate even as it simultaneously criminalized similar allegations against Poles. This controversial amendment therefore refers to two important episodes in the period since the fall of the communist regime. One, which has 15  See, e.g., Tara John, “Poland Just Passed a Holocaust Bill That Is Causing Outrage,” Time, February 1, 2018, time.com/5128341/poland-holocaust-law/; Marc Santora, “Poland’s ‘Death Camp’ Law Tears at Shared Bonds of Suffering With Jews,” New York Times, February 6, 2018, www.nytimes.com/2018/02/06/world/europe/poland-death-­ camp-law.html; Brigit Katz, “Poland’s President Signs Highly Controversial Holocaust Bill into Law,” Smithsonian Magazine, February 7, 2018, www.smithsonianmag.com/smart-­ news/poland-grants-initial-approval-controversial-death-camp-bill-180967975/; Nikolay Koposov, “Memory Laws and Nationalist Lies,” Project Syndicate, March 7, 2018, www. project-syndicate.org/commentary/poland-holocaust-law-nationalist-tool-by-nikolay-­ koposov-­2018-03; Alissa Valles, “Scrubbing Poland’s Complicated Past,” The New  York Review, March 23, 2018, www.nybooks.com/daily/2018/03/23/scrubbing-polands-­ complicated-past/, all accessed June 9, 2018. 16  See note 12.

204 

O. BARTOV

drawn much greater public attention, is the case of the Holocaust. While several scholars, including not a few Poles living in Poland and elsewhere, have documented Polish complicity in the murder of the Jews, sparking what had been seen as controversial but fruitful Polish confrontations with the past, this law seems to criminalize any further investigations into the murkier aspects of the German occupation, its immediate aftermath, which included several major massacres of Jews by Poles, and Poland’s prewar increasingly anti-Semitic 1930s.17 The second aspect of this law, which, as noted, drew much less international attention, but enraged many Ukrainians, greatly exacerbated Poland’s fraught relationship with Ukraine, which up to that point seemed to have been resolved thanks to mutual efforts by the two states following the fall of communism. Thus on May 21, 1997, the Presidents of Ukraine and Poland issued a joint statement “On Concorde and Reconciliation”; on July 11, 2003 another statement was issued “On Reconciliation on the Sixtieth Anniversary of the Volhynia Tragedy” (i.e., the ethnic cleansing of the Poles by nationalist Ukrainian paramilitaries in 1943–1944); and on April 27, 2007, yet another mutual statement was issued on the occasion of the sixtieth anniversary of the “Vistula Operation” (i.e., the deportation of ethnic Ukrainians by the postwar communist Polish regime). These proclamations by the heads of the two states were accompanied by several statements of reconciliation between Ukrainian Greek-Catholic and Polish Roman-Catholic bishops in 2005 and 2013.18 17  Bartov, Anatomy of Genocide, 82–128; Jan Grabowski, Hunt for the Jews: Betrayal and Murder in German-Occupied Poland (Bloomington: Indiana UP, 2013); Jan Tomasz Gross and Irena Grudzińska Gross, Golden Harvest: Events at the Periphery of the Holocaust (New York: Oxford UP, 2012); Havi Dreifuss, We Polish Jews? The Relations between Jews and Poles during the Holocaust—The Jewish Perspective (Jerusalem: Yad Vashem, 2009 [in Hebrew]); Jan T.  Gross, Fear: Anti-Semitism in Poland after Auschwitz. An Essay in Historical Interpretation (New York: Random House, 2006); Joanna Beata Michlic, Poland’s Threatening Other: The Image of the Jew from 1880 to the Present (Lincoln: Nebraska UP, 2006); Natalia Aleksiun, “Jewish responses to Antisemitism in Poland, 1944–1947,” Contested Memories: Poles and Jews during the Holocaust and Its Aftermath, ed. Joshua D.  Zimmerman (New Brunswick, NJ: Rutgers UP, 2003), 247–261; Frank Golczewski, “Der Jedwabne-Diskurs. Bemerkungen im Anschluß an den Artikel von Bogdan Musiał,” Jahrbücher für Geschichte Osteuropas 50.3 (2002): 412–437; David Engel, “Patterns of Anti-­ Jewish Violence in Poland, 1944–1946,” Yad Vashem Studies 26 (1998): 43–85; Frank Golczewski, Polnisch-jüdische Beziehungen 1881–1922: Eine Studie zur Geschichte des Antisemitismus in Osteuropa (Wiesbaden: Steiner, 1981). 18  Alina Cherviatsova, “Memory Wars: The Polish-Ukrainian Battle about History,” Verfassungsblog: On Matters Constitutional, February 9, 2018, verfassungsblog.de/memory-­ wars-­the-polish-ukrainian-battle-about-history/, accessed June 9, 2018.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

205

But these concerted efforts were thwarted first by Ukraine’s adoption in April 2015 of the so-called de-communization package, a set of four laws, which included the “Law On the Legal Status and Honoring the Memory of Fighters for Ukrainian’s Independence in the Twentieth Century,” namely precisely those individuals associated with what the Poles perceived as acts of terrorism against their rule in the interwar period and especially the ethnic cleansing operation in Volhynia and Galicia in 1943–1944 (as well as complicity in the genocide of the Jews in these regions). The Ukrainian law, for its part, proclaims that Ukraine “considers as legal all forms and methods of struggle for its independence in the twentieth century,” and states that it would hold responsible those who “publicly display a disrespectful attitude” toward its heroic liberation fighters, including members of the fascist Organization of Ukrainian Nationalists (OUN) and its military arm, the Ukrainian Insurgent Army (UPA), and those who “publicly deny the legitimacy of the struggle for the independence of Ukraine.” Specifically, the law states that “Ukrainian nationals, foreigners and stateless persons who publicly express disrespect for those stipulated in Article 1 of this law,” namely the “fighters for Ukrainian independence in the twentieth century,” would “bear liability in accordance with current Ukrainian legislation. Public denial of the legitimacy of the struggle for Ukraine’s independence in the twentieth century is deemed desecration of the memory of fighters for Ukraine’s independence in the twentieth century, denigration of the dignity of the Ukrainian people, and is unlawful.”19 No wonder, then, that in July 2016 the Polish parliament adopted a resolution “On the Perpetuation of the Memory of Victims of Genocide Committed by the Ukrainian Nationalists Against the Citizens of the Second Republic in 1943–1945,” which specifically described the massacres in Volhynia as a “genocide” and declared July 11 as a “National Day of Remembrance for the Victims of the Volhynian Genocide.”20 This was followed, as we have seen, by the criminalization of any denial of Ukrainian nationalist crimes signed into law in January 2018. The extraordinary attempts made by both nations, whose history of mutual animosity dates back to the seventeenth century, to bring about mutual reconciliation in  Ibid. See also Koposov, Memory Laws, 201–203, with slightly different translations. Koposov rightly notes that the law introduced no specific sanctions for such acts. 20  Cherviatsova, “Memory Wars”; Koposov, Memory Laws, 205. 19

206 

O. BARTOV

the wake of the disintegration of Soviet rule, has thus been undone by the nationalist memory warriors on both sides. And while there is no imminent prospect for armed conflict or irredentist claims, the fragile state of Ukraine coming under Russian pressure, and the increasingly nationalist and anti-democratic trends in Poland, which include the undermining of the judiciary’s independence, do not bode well for the future.21 This is also a particularly dispiriting moment since, until quite recently, Poland had made major strides toward facing up to its past, serving as a model for other post-communist East European countries. Indeed, Poland has gone out of its way in recognizing its rich history of Polish-Jewish coexistence, beautifully exhibited in the new POLIN Museum as well as in the reconstruction of Jewish sites throughout the country.22 And yet, Polish officials have increasingly insisted that while millions of Jews were murdered on its soil, anyone claiming that Poles were in any way involved is engaging in fake history. The “bloodlands,” it is argued, were the product of external invaders from East and West, and Poles as much as Jews were their common victims. This is, in fact, also the underlying argument of the Polin Museum itself, despite, but also consistent with its emphasis on harmonious Polish-Jewish relations.23 Yet now the museum itself has been coming under attack, while scholarly works exposing Polish collaboration in the Holocaust and local murder of Polish Jews by their Christian neighbors have elicited outrage among nationalist politicians and other defenders of the national pride. If denying the event is illegal, excavating the manner in which it actually happened on Polish soil can be not merely

21   See, e.g., Rick Lyman, “Polish Parliament Approves Law Curtailing Courts’ Independence,” New York Times, July 21, 2017, www.nytimes.com/2017/07/21/world/ europe/poland-courts-independence.html; Pawel Sobczak, “Polish parliament, defying EU, approves judiciary overhaul,” Reuters, December 8, 2017, www.reuters.com/article/us-­ poland-­judiciary-supremecourt/polish-parliament-defying-eu-approves-judiciary-overhaul-­ idUSKBN1E21PR; Christian Davies, “Polish MPs pass judicial bills amid accusations of threat to democracy,” The Guardian, December 8, 2017, www.theguardian.com/ world/2017/dec/08/polish-mps-pass-supreme-court-bill-criticised-as-grave-threat, all accessed June 9, 2018. 22  See: www.polin.pl/en, accessed June 9, 2018. 23  Omer Bartov, “The Truth and Nothing But: The Holocaust Gallery of the Warsaw POLIN Museum in Context,” New Directions in the History of the Jews in the Polish Lands, ed. Antony Polonsky, Hanna Węgrzynek, Andrzej Zbikowski (Brighton, MA: Academic Studies Press, 2018), 111–118.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

207

embarrassing but also downright unpatriotic and therefore ultimately illegal, since it sullies the name and reputation of the Polish nation.24

III There is, therefore, a bond of blood, of victimization and perpetrations of violence between Poles, Ukrainians, and Jews, just as much as a history of centuries-long coexistence and mutual cultural exchange. There is a bond of memory and vengeance, of commemoration and erasure. But while the Poles and Ukrainians remain on either side of their mutual border (their minorities within the other nation having been murdered, expelled, or “exchanged”), the case of the Jewish state is different. For even as Israel is committed to the memory of the Holocaust, it is also founded on a tale of heroism and erasure that both links it to Poland and Ukraine and, at the same time, contains its own regional narrative of glorification and forgetting. Are these simply three cases that bear similarity to each other or are they intrinsically linked? After all, we can cite many other such examples, not least in the United States, where the glorification of fallen heroes proceeds independently from their actions as instruments of policies that not infrequently produce large numbers of civilian deaths in other nations, as in the cases of Vietnam and Iraq. Merely mentioning civilian victims in the same breath threatens to diminish both the individual glory of the fallen and the good name of the nation that sent them on such missions. Hence, for instance, the Vietnam memorial in Washington, D.C., makes no reference to the hundreds of thousands of civilian Vietnamese killed in the

24  See, e.g., Dariusz Stola, Director of POLIN Museum, and Piotr Wiślicki, Chairman of the Board of the Association of the Jewish Historical Institute of Poland, “Statement of POLIN Museum concerning a proposed amendment to the Act on the Institute of National Remembrance,” January 29, 2018, www.polin.pl/en/news/2018/01/29/statement-of-­ the-director-of-polin-museum-concerning-a-proposed; Professor Andrzej Nowak, Jagiellonian University, and Professor Robert Frost, Fletcher Chair in History, University of Aberdeen, “An Open Letter to Mr. Mateusz Morawiecki, Prime Minister of the Republic of Poland,” February 27, 2018, www.polin.pl/en/news/2018/02/27/an-open-letter-to-mr-­­ mateusz-morawiecki-prime-minister-of-the; “Polish ex-presidential candidate sues Jewish museum over tweet,” The Times of Israel, March 20, 2018, www.timesofisrael.com/polish-­ ex-­presidential-candidate-sues-jewish-museum-over-tweet/; Eva Hoffman, “Hearing Poland’s Ghosts,” New York Review, March 22, 2018, www.nybooks.com/articles/2018/03/22/hearing-polands-ghosts/, all accessed June 9, 2018.

208 

O. BARTOV

war.25 Nevertheless, I would maintain that in the case of the Ukrainian-­ Polish-­ Israeli triangle the mechanism whereby remembrance facilitates denial, criminalization of denial enables erasure, and erasure creates space for the mobilization of self-righteous victimhood, is particularly visible precisely because of the complex links between the three nations’ narratives of victimization and self-assertion.26 Crucially, then, the “duty to remember” and the urge to forget are inextricably linked within each of these national discourses, just as they are also dependent on competing national narratives. This relationship, as noted, actually goes all the way back to the “never again” slogans of the immediate postwar era; but the discourse of anti-fascism has been replaced since the 1990s by a post-communist ethno-nationalist rhetoric that often masquerades as or creates strange alliances with anti-neoliberal and anti-­ globalization discourses. In the specific cases of Poland, Ukraine, and Israel, I would reiterate that laws enforcing remembrance and censuring denial, just as much as those enforcing denial by way of restricting the content of legitimate remembrance, are linked to each other not only conceptually but also historically. If popular presentations of Soviet crimes in Poland and Ukraine are often associated with Jews, popular Israeli views of the Nazi crimes in Eastern Europe are just as often associated with Poles and Ukrainians. Indeed, in all three nations distorted popular perceptions are used to their own benefit by politicians and demagogues. In other words, such laws are never merely against denial but also invariably seek to utilize it. By the same token, such laws’ insistence on exposing the truth about the past is also always invariably about forgetting and erasing its more inconvenient components. Remembrance and erasure in Israel is a case in point.

25  The official site of the memorial declares, “The Wall That Heals. Honoring the men and women who served in the controversial Vietnam War, the Vietnam Veterans Memorial chronologically lists the names of more than 58,000 Americans who gave their lives in service to their country.” See www.nps.gov/vive/index.htm, accessed June 9, 2018. 26  On the politics of memory in Ukraine, see, e.g., Christoph Mick, Lemberg, Lwów, L’viv, 1914–1947: Violence and Ethnicity in a Contested City (West Lafayette, Indiana: Purdue UP, 2016); Omer Bartov, Erased: Vanishing Traces of Jewish Galicia in Present-Day Ukraine (Princeton: Princeton UP, 2007). More generally on the violent potential of victimhood narratives, see Omer Bartov, “Defining Enemies, Making Victims: Germans, Jews, and the Holocaust,” The American Historical Review 103.3 (June 1998): 771–816.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

209

IV Having spent several years studying Jewish-Polish-Ukrainian coexistence and violence from the perspective of one small town, and as a member of the generation born in Israel in the immediate aftermath of World War II, the Holocaust, and the establishment of the state, my interest here is not only in official commemoration and eradication but also in collective, communal, and personal engagement, trauma and memory; not only in criminalization of denial but also in the perhaps more powerful effects of public and social censure of what must not be denied (or must be remembered) and what must be denied (or may not be remembered). Young teenagers growing up in Israel of the late 1960s and early 1970s had to contend with two major denials. First, there was the denial of the Diaspora, or shelilat ha-galut. For the children born in the wake of the 1948 War, this fundamental tenet of Zionism was associated not with criminality but with something both very far and unknown and at the same time familial and familiar: grandparents, the sounds of spoken Yiddish and Polish around us, remnants of religious practice in generally secular spaces, as well as old age, foreign and embarrassing mannerisms, along with evocations of names of people and places we could not pronounce or locate. These were, in other words, vicarious memories we neither had nor wanted to have: alien, unpleasant, vaguely threatening, yet simultaneously intimate; something from which we had been liberated and refused to be dragged back into, whatever it was (which we didn’t really know), but also at times alluring in a menacing sort of way as forbidden fruits and neglected graveyards tend to be, especially for the young. We, after all, were the first generation of Israelis, the very embodiment of the “new Jew,” so new, indeed, that we were said to have been born from the waves and to have none of the burden of those long, dark millennia of exile.27 27  “Born from the waves” refers to the iconic novel by Moshe Shamir, With His Own Hands [be-mo yadav] (Merkhavyah: Sifriyat Poalim, 1951 [in Hebrew]). See also A.  B. Yehoshua, In Praise of Normality: Five Essays on the Question of Zionism (Tel Aviv: Schocken, 1984 [in Hebrew]); Oz Almog, The Sabra: The Creation of the New Jew, trans. Haim Watzman (Berkeley: University of California Press, 2000); Anita Shapira, “Where did the Negation of the Diaspora Go?” Alpayim 25 (2003 [in Hebrew]): 9–54; Yuval Dror, “From ‘Negation of the Diaspora’ to ‘Jewish Consciousness’: The Israeli Educational System, 1920–2000,” Israel Studies Forum 18.2 (2003): 58–82; Gideon Katz, “Negation of the Diaspora from an Israeli Perspective: The Case of A. B. Yehoshua,” Handbook of Israel, ed. Eliezer Ben-Rafael, et al. (Berlin: De Gruyter Oldenbourg, 2016) II: 1116–1333.

210 

O. BARTOV

The second great denial was that we had inherited another people’s place. We grew up next to remnants of villages, often unnamed, misnamed, or renamed, and eventually bulldozed away: we grew used to the new names for sites whose origins we did not know or want to know, even as the older generation still used the previous names without ever recalling that they had once stood for sites of habitation filled with now vanished men, women, and children; we played next to sabra fences, whose locations and purpose were never explained; we skirted the fading boundaries of cemeteries, unfamiliar and overgrown. For us the Nakba, as a word and an event, did not exist; or if it did, it was merely as a distant rumor, inarticulate, hidden, unpronounceable, and shameful, if not downright offensive. These two denials were at the core of the first generation’s identity, and thus the founding truth, the national blind spot, the tunnel vision through which everything was seen and understood by the Jewish state’s founding native generation. These same two denials were simultaneously rooted in two fundamental, constitutive events, fated to be commemorated, celebrated, and codified. The first was the Warsaw Ghetto Uprising and all that it symbolized as the defiant act of a nation both dying and being reborn phoenix-like in the fire and sword of the Holocaust. The second was the first’s natural product, the War of Independence, in which the few heroically vanquished the many, against all odds, a replay of the Warsaw Uprising but with the opposite result. Anything that might threaten, belittle, or undermine this memory had to be denied—not by law but by society at large. The Uprising was the core event of the Holocaust: the masses who went “like sheep to the slaughter” were on its margins; the victory by the few and the transformation of the Jewish minority in the Yishuv into a majority in the new state of Israel was a redemptive miracle: the violence of the expulsion and eradication of Arabs was mere collateral damage that could not be allowed to mar the magnificence of national rebirth.28 28  Among the first to oppose the notion of “sheep to the slaughter” was the influential poet Nathan Alterman, whose poem, “The Day of Remembrance—and the Rebels,” was published in the newspaper Davar on April 30, 1954: “On Memorial Day the fighters and the rebels said: / Do not put us on a pedestal, to separate us from the Diaspora as a sacred light. / At this memorial hour we descend from the pedestal / To intermingle once again in the darkness with the history of the masses of Israel… / The fighters and the rebels said a share of the nation’s heroism and honor goes / Also to the Jewish fathers who said the underground will bring disaster, / And also to that boy or girl who / Went on and on till they were lost somewhere / And all they left behind is a little white sock / On a memorial stone in the archive.” But Alterman’s lines were not well received; it took the trial of Adolf Eichmann in

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

211

Grandparents might have had sentimental memories of the Diaspora, and young men and women might have been haunted by the atrocities committed in 1948. But with few exceptions that proved the rule, in the public sphere, these remained unspoken, repressed, and denied.29 Memory, denial, and law have a complex relationship. Legislating remembering can lead to forgetting; prohibiting denial can be the best way to let it back in. In 1956, Israeli border guards murdered over forty residents of the Arab village of Kafr Qasim. In the trial that followed, Judge Benjamin Halevy determined that the troops had obeyed an unlawful order which they had a duty to refuse: “The hallmark of a ‘manifestly unlawful’ order,” he stated in 1958, must fly like a black flag over the given order, as a warning sign that says, “Forbidden!” What matters here is not a formal illegality, obscure or quasi-­ obscure, not illegality that can be discerned only by legal scholars, but rather: a visible and distinct violation of the law, a certain and inescapable illegality that appears on the face of the order itself, a clear criminal nature of the order or of the actions that the order demands to carry out, an illegality that pierces the eye and revolts the heart, if the eye is not blind and the heart is not impenetrable or corrupt—that is the measure of illegality needed in order to override the soldier’s duty to obey and to impose on him criminal liability for his actions.30 Jerusalem, and the wars of 1967 and 1973, to finally undermine the distinction between the heroic rebels and the slaughtered sheep. See also: blog.nli.org.il/eichmann_trial/, accessed June 9, 2018. On the expulsion of the Palestinians as a dream come true, see Alon Confino, “Miracles and Snow in Palestine and Israel: Tantura, a History of 1948,” Israel Studies 17.2 (2012): 25–61; Alon Confino, “The Warm Sand of the Coast of Tantura: History and Memory in Israel after 1948,” History & Memory 27.1 (2015): 43–82. 29  The main exceptions at the time were the novella by S. Yizhar, Khirbet Khizeh, trans. Nicholas de Lange and Yaacob Dweck (Jerusalem: Ibis Editions, 2008, orig, pub. 1949), and the poem by Avot Yeshurun, “Passover on Caves,” published in 1952. For a series of essays on these and other writings on 1948, see Amir Eshel, et al., eds., “History and Responsibility: Hebrew Literature Facing 1948,” special issue, Jewish Social Studies 18.3 (2012): 1–224. 30  Central District 57/3/ Military Prosecutor, Defendants Major Malinki et  al., Verdict XVII 90 (1958) 211–214. See also Leora Y. Bilsky, Transformative Justice: Israeli Identity on Trial (Ann Arbor: University of Michigan Press, 2004) 170. Further in Adi Parush, “Critique of the ‘Black Flag’ Test: The Verdict in the Kafr Qasim Affair, the Black Flag Test, and the Concept of a Manifestly Unlawful Order,” Kafr Qasim: Events and Myth, ed. Ruvik Rosenthal (Tel Aviv: Ha-Kibbutz ha-Meu’khad, 2000 [in Hebrew]), 131–177; Ziv Borer, “Clear and Obvious? How Can a Soldier Identify a Manifestly Unlawful Order?” Mishpat ve-Tsava 17 (2004 [in Hebrew]): 351–407; Keren Weidberg, “Justice Dr. Benjamin Halevy” (seminar paper, Law School, Haifa University, 2009 [in Hebrew]), 27–36.

212 

O. BARTOV

The event was recalled publicly less as an atrocity and much more as a triumph of Israeli justice and a demonstration of the purity of the arms (tohar ha-neshek) of the Israeli Defense Forces (IDF). While it has become part of Israeli lore and repeated claims that the IDF is “the most moral army in the world,” it has never formed a constituent element of military practice.31 Indeed, even at the time, most of the Israeli public came out against Halevy’s ruling, and subsequent judicial actions radically reduced the sentences; by 1959, all involved had been pardoned.32 Halevy’s ruling was not invoked, for instance, after the last major Gaza operation in July-­ August 2014, euphemistically named “Protective Edge” (Miv’tsa Tsuk Eitan), in which approximately 2200 Palestinians were killed, including close to 400 children under age 15, and up to 500,000 local residents were displaced from their homes as large parts of the built-up area were

31  See, e.g., Yehonatan Kilnger, “The Most Moral Army in the World” (June 18, 2006 [in Hebrew]): 2jk.org/praxis/?p=570; Avraham Burg, “The Half-Most Moral Army in the World” (April 5, 2016 [in Hebrew]): www.haaretz.co.il/opinions/.premium-­1.2904314?= &ts=_1528508023351; Niki Gutman, “We Are the Most Moral Army in the World, and Hamas Exploits It” (May 17, 2018 [in Hebrew]): www.israelhayom.co.il/article/556857, all accessed June 9, 2018. 32  Weidberg, “Benjamin Halevy,” 32. There are various similarities here to the court-­ martial and conviction for premeditated murder of United States Army First Lieutenant William Calley for his part in the My Lai Massacre during the Vietnam War on March 16, 1968, in which up to 500 Vietnamese civilians were murdered. The court rejected Calley’s argument of obeying the order of his superiors and sentenced him to life in prison, but thanks to the public outcry in the United States, his sentence was drastically reduced even before President Nixon granted him clemency after only three and a half years under house arrest. See, e.g., Christopher J.  Levesque, “The Truth Behind My Lai,” New York Times, March 16, 2018, www.nytimes.com/2018/03/16/opinion/the-truth-behind-my-lai.html; Seymour M. Hersh, “The Scene of the Crime,” New Yorker, March 30, 2015, www.newyorker.com/magazine/2015/03/30/the-scene-of-the-crime; Seymour M.  Hersh, “Coverup-I,” New Yorker, January 22, 1972, www.newyorker.com/ magazine/1972/01/22/i-coverup. According to the 2016 US Manual for Courts-Martial, “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.” See Article 90, 2 (a) (1): jsc.defense.gov/Portals/99/Documents/MCM2016.pdf?ver=2016-12-08-181411-957, all accessed June 9, 2018. This logic was applied in 2004 in the case of military personnel charged with mistreating prisoners and detainees in Iraq under orders.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

213

flattened by aerial bombs and artillery.33 In Israel of the twenty-first century, the mere evocation of the term “war crimes” or “crimes against humanity” in this context is anathema, considered by many as treasonous and anti-Zionist, if not anti-Semitic.34 Born in Germany in 1910, where he received a doctorate in law in 1933, Halevy was also the judge in the so-called Kasztner trial of 1955, in which he declared that Rudolf Israel Kasztner, who negotiated with Adolf Eichmann in Budapest during the Holocaust, had “sold his soul to the devil” since he collaborated with the Nazis, a ruling that led to Kasztner’s assassination. And although the Israeli Supreme Court subsequently ruled that “Kasztner would be judged by history and not by the court,” the question of Jewish collaboration in the Holocaust persisted as a troubling and disruptive component in the struggle between memory and forgetting, commemoration and denial: a constant reminder—relentlessly denied—of the cost entailed in the attempt to derive moral superiority and

33  Even the interim report of the IDF and the Israeli Foreign Ministry issued on June 14, 2015, notes that a total of 2125 Palestinians were killed during the operation, of whom 761 were “uninvolved civilians,” including “369 children under the age of 15… 284 women… and 108 men…” An additional 428 males aged 16–50 killed had not been identified as civilians or militants. See “Annex—Palestinian Fatality Figures in the 2014 Gaza Conflict,” mfa. gov.il/ProtectiveEdge/Documents/PalestinianFatalities.pdf. On material damage see, e.g., Jason Burke, “Gaza homes ‘uninhabitable’ as tens of thousands come back to rubble,” The Guardian, August 11, 2014, www.theguardian.com/world/2014/aug/11/damage-gaza-­ homes-israel-hamas-conflict; Jeremy Ashkenas, et al., “Assessing the Damage and Destruction in Gaza,” New York Times, August 15, 2014, www.nytimes.com/interactive/2014/08/03/ world/middleeast/assessing-the-damage-and-destruction-in-gaza.html?_r=0, all accessed June 9, 2018. 34  A report by the Israeli Foreign Ministry on “factual and legal aspects” of the Gaza conflict in 2014, dated June 14, 2015, blames Hamas for crimes against humanity, while insisting that the IDF went out of its way to avoid civilian casualties and damage to structures. See mfa.gov.il/ProtectiveEdge/Pages/default.aspx and “Israel’s Investigation of Alleged Violations of the Law of Armed Conflict”: mfa.gov.il/ProtectiveEdge/Documents/ IsraelInvestigations.pdf. See also Gerald M. Steinberg, et al., “NGOs and the Political-Legal Theater in Operation Protective Edge,” Strategic Assessment 19.1 (2016): 73–86: www.inss. org.il/wp-content/uploads/systemfiles/adkan19-1ENG_3_Steinberg%20et%20al.pdf. Further, e.g. Ralph Seliger, “How Vulnerable Is Israel To War Crimes Charges?” The New York Jewish Week, January 12, 2015, jewishweek.timesofisrael.com/how-vulnerable-is-­ israel-to-war-crimes-charges/; David Shulman, “Israel Without Illusions: What Goldstone Got Right,” New York Review, November 17, 2009, www.nybooks.com/daily/2009/11/17/ israel-without-illusions-what-goldstone-got-right/, all accessed June 9, 2018.

214 

O. BARTOV

ethical license from victimhood.35 Indeed, Halevy also served as one of the three judges in the Eichmann trial of 1961–1962 in Jerusalem. It was this trial that exposed the Israeli public, and especially members of my generation, for the first time to the Holocaust not as a shameful event in which the Jews went like sheep to the slaughter and were redeemed only by the allegedly Zionist rebels in Warsaw, but as an unfathomable genocide that still haunted its survivors, men and women who turned out to be our neighbors and family members.36 But it was also during this trial that Halevy interrogated Eichmann on the question of Jewish collaboration in the organization of the “final solution,” speaking to the defendant, as he put it, “in his own language,” namely German. Was it true that “the Jewish functionaries were given the task of registering the members of their communities for the purpose of emigration, settling property matters, and exercising fairly stringent controls here, which greatly facilitated emigration?” he asked the defendant. “Jawohl, das stimmt,” responded Eichmann. “And then,” continued Halevy, “that could be switched rapidly and smoothly to deportation?” Again, Eichmann responded with “Jawohl.” Halevy persisted: “Then there was the idea of the Jewish councils… As instruments of German policy regarding the Jews, these Jewish councils—shall we say—considerably facilitated the implementation of measures against the Jews?” Eichmann agreed: “Jawohl.” This, Halevy stated, “saved a great deal of manpower and staff.” Eichmann agreed again: “Jawohl.” Hence, concluded Halevy, the Jewish councils “made it possible, by misleading the victims, to facilitate the work, and also to harness the Jews to work for their own extermination.” Eichmann appeared almost relieved; finally, the court had understood, “Jawohl, das stimmt,” he confirmed.37 Whatever might have been Halevy’s purpose in pursuing this line of questioning, he clearly exposed the danger of trying to use absolute evil as justification for the actions of its victims and survivors. And yet the emergence of the Holocaust from denial to memory, supported by the growing 35  See, e.g., Tom Segev, The Seventh Million: The Israelis and the Holocaust, trans. Haim Watzman (New York: Henry Holt, 2000), 255–322. See also Weidberg, “Benjamin Halevy,” 14–26. 36  Segev, Seventh Million, 323–386; Weidberg, “Benjamin Halevy,” 22–26; Hanna Yablonka, The State of Israel vs. Adolf Eichmann, trans. Ora Cummings with David Herman (New York: Schocken Books, 2004). 37  Cited in Omer Bartov, The “Jew” in Cinema: From The Golem to Don’t Touch My Holocaust (Bloomington: Indiana UP, 2005), 87, 91–92.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

215

prominence of Yad Vashem, created by law as a national institution commemorating the Holocaust in 1953, facilitated denial just as much as it institutionalized remembrance.38 The vast shadow the Holocaust increasingly cast over the entire land made the war of 1948 appear all the more miraculous, the existence of the Jewish state all the more precarious, and the fate of the Palestinians and their rapidly vanishing villages, bulldozed systematically by the authorities as a prelude to allegedly conquering the wilderness and greening the wasteland, appear ever more marginal.

V Memory and forgetting, marginality and centrality, consciousness and unconsciousness: I recall jumping a gate in the small German town of Kornelimünster in 1981. I had heard there was a Jewish cemetery there, but the gate was locked. The overgrown space was filled with tombstones, mostly inscribed in German. Those Jews who were still living in the town under Nazi rule, my landlady recalled, were carted off in 1942, including her best friend, Ruth. She remembered Ruth fondly, and how the Jews in the town were assembled in its beautiful medieval square one day and taken away, never to return. She also had fine memories of the Third Reich, as she told me over Kaffee und Kuchen: she was a member of the Bund Deutscher Mädel (BDM, the Nazi League of German Girls), where they learned how to make Eintopf, a stew into which you could throw anything you had in the kitchen and that brought everyone together. These were times of scarcity, but also of fraternity, pride, and decency, she said. No one spoke openly about those matters at the time in such small German towns, but things have since changed a great deal. Two decades later, I visited for the first time Jewish cemeteries in West Ukraine, formerly Eastern Galicia, including the cemetery in my mother’s hometown of Buczacz. There were no gates and fences; goats were grazing among the derelict tombstones, where local residents deposited their garbage. It took me all those years to recall the Muslim cemeteries of my childhood, 38  See, e.g., Doron Bar, “Holocaust and Heroism in the Process of Establishing Yad Vashem (1942–1970),” Dapim 30.3 (2016): 166–190; Jeffrey C. Blutinger, “Yad Vashem and the State of Holocaust Education in Israeli Schools in the 1960s,” Jewish Social Studies 21.1 (2015): 123–150; Amos Goldberg, “The ‘Jewish Narrative’ in the Yad Vashem Global Holocaust Museum,” Journal of Genocide Research 14.2 (2012): 187–213.

216 

O. BARTOV

as I tried to see the remains of my ancestors through the eyes of Ukrainian children playing in the ruins.39 Questions about that past were not welcomed. Memory has a price, usually gauged more in terms of property than shame. Silence was definitely safer, as one walked through graveyards, forests, and creeks, where thousands of bodies lay buried in shallow graves within earshot of the town center. Here there was no need to legislate either for or against denial: everyone was in agreement not to talk, not to remember, not to commemorate. Yet by then commemoration was all the rage. With the communists gone, one could finally remember. Those who had been maligned and discarded returned, proudly stepping back into history. And, just as it was at the time when they were living, what was recalled about their deeds and what was forgotten had to be balanced between historical reconstruction and political need. As the surviving old men and women of the Organization of Ukrainian Nationalists and the Ukrainian Insurgent Army gathered to remember their heroism and suffering, many of them having spent years in gulags and prisons, they also recalled how they had fought for freedom from Poland and the Jews, Germany and the Soviets. They had nothing to be ashamed of and they had paid a heavy price. Others, too, were victimized, but they had worked with the enemy and were justly punished. And in any case, it wasn’t us who killed the Jews.40 Criminalizing Holocaust denial in Ukraine and Poland comes wrapped together with criminalizing denial of communist crimes and defaming the nation. Yet the manner in which we remember one defines how we remember the other, and the vision we wish to have of the nation and its honor is the prism though which we filter these public recollections. Who were the communists who committed crimes against Poles and Ukrainians? And who were those who committed crimes against the Jews? In public memory, the communists are associated with the Jews, while the murderers of the Jews are associated with the Germans. The Jews, in other words, were, and must be remembered as having been murdered by others, those who

 Further on this in Bartov, Erased.  See, e.g., Andre Liebich and Oksana Myshlovska, “Bandera: Memorialization and Commemoration,” Nationalities Papers 24.5 (2014): 1–21; Wilfried Jilge, “‘Nationalist-­ Ukrainian Struggle for Liberation.’ The Re-evaluation of the Second World War in Ukraine,” Osteuropa 58.6 (2008): 167–186; Wilfried Jilge, “The Politics of History and the Second World War in Post-Communist Ukraine (1986/1991–2004/2005),” Jahrbücher für Geschichte Osteuropas 54.1 (2006): 50–81. 39 40

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

217

marched into the “bloodlands” from elsewhere;41 our own people, real Poles and Ukrainians, were murdered not just by external outsiders but also by our own internal enemies. It is, ultimately, the memory of Judeo-­ Bolshevism, that infamous żydokomuna, that helps organize all these other memories, denials, and erasures. But for the Jews who came to Palestine, much as they wished to negate the Diaspora, it was precisely the Diaspora experience that determined the manner in which they remembered and denied their own actions. The vocabulary was already in place, the need was even more urgent, and the opportunity could not be missed. What was denied to us had to be denied to others; what was forgotten and erased had to be remembered and reconstituted, albeit elsewhere; the victims of injustice could not be guilty of committing crimes, and the victims of forgetting, those who vowed never to forget and always to remember, could not be blamed for erasure. This was and remains the mechanism of repression of the events of 1948. The state of Israel was built around the notion of “never again” and “we shall never forget.” And the process of its very making, the war in which the vast majority of the Arab Palestinian population of Palestine was expelled from the territory of what became the state of Israel, was legitimized by these very slogans: only by creating an independent majority Jewish state would another Holocaust be prevented, and any objections to the manner in which this goal was achieved would be pushed aside by the overwhelming memory—never to be forgotten—of the genocide of the Jews. But at the same time, the constitutive events of 1948 were based on the precise opposite—the mirror reflection, if you like—of these slogans: the process of expulsion, the Palestinian Nakba, was not merely an event that would never happen again, but became an ever-recurring, never-­ ending event, whereby an entire people remains either exiled or under various forms of oppression. The “never again” in this case became “again and again,” an interminable effort to “complete the job” in the face of a stubborn insistence to hold out, either as “sumud,” that is, holding on to the land, or as in never giving up the aspiration to return to it. And thus, the slogan of “we shall never forget” was turned on its head as regards the Nakba, an event which for the Jewish state is one that must always be repeatedly forgotten, just as it must be eternally remembered by those subjected to it. In this sense, the evident and bitter irony is that just as the 41  That is the basic contention of Timothy Snyder, Bloodlands: Europe between Hitler and Stalin (New York: Basic Books, 2010).

218 

O. BARTOV

insistence on remembering the Holocaust has encountered repeated attempts to forget, “contextualize,” marginalize, or blatantly deny it in different countries in which it occurred throughout the past seven decades, so too the mounting scholarship on the actual events of the expulsion of the Palestinians has only increased the efforts by the state of Israel and many members of the political, media, scholarly, and intellectual community to forget, “contextualize,” marginalize, or blatantly deny it.

VI From this perspective, then, the infamous recent “Nakba law” should come as no surprise. In a sense, it merely attempts to legislate a long-term convention in Jewish-Israeli public discourse, namely, that the state celebrates its war of independence in 1948 and that any talk about those who paid the price for this accomplishment is at best irrelevant and at worse downright seditious. The so-called Nakba Law specifically originated in a bill proposed in 2009 to criminalize the commemoration of the Day of Independence or the establishment of the state of Israel as a day of mourning. This bill was supported by the government but encountered a great deal of public opposition and criticism abroad. As a result, the criminalizing element of the bill was removed, and a new version of it was smuggled into the state budget legislation as amendment number 40  in March 2011. The law passed that year states that the minister of finance would be allowed to deprive an institution funded or supported by the state of some of its funding (up to three times the amount of the disallowed expenses used by that institution) if that institution engaged in any of the following: 1. Denying the existence of the State of Israel as a Jewish and democratic state; 2. Incitement to racism, violence or terrorism; 3. Support for an armed struggle or act of terror by an enemy state or a terrorist organization, against the State of Israel; 4. Commemorating Independence Day or the day of the establishment of the state as a day of mourning; 5. An act of vandalism or physical desecration that dishonors the state’s flag or symbol.42 42  See “Records of the Law Book,” March 30, 2011, www.nevo.co.il/law_word/law14/ law-2286.pdf, 686.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

219

In May 2011 the Association for Civil Rights in Israel and Adalah, the Legal Center for Arab Minority Rights in Israel, launched a public petition against the law. The petition noted that as a result of the so-called Nakba Law, academic bodies, educational and cultural institutions, local municipalities and other funded bodies find themselves at the moment conflicted over the question whether an event that would include reference to the very occurrence of the Nakba could expose their budget to monetary diminution… Such a conflict may bring about self-censorship, thereby causing severe damage to the freedom of expression and restricting democratic discourse… In our opinion, the law causes severe and scandalous damage to the right of equality, the freedom of political and cultural expression, the right for personal and group dignity and other constitutional rights… Clearly this law cannot be seen separately from the rising tide of anti-democratic legislation in the Knesset, which in many cases is aimed to harm the rights of the Arab citizens of Israel.43

That same month these two organizations appealed to the Israeli Supreme Court, on their own behalf as well as on behalf of several other institutions, including the parents and students of a bilingual Jewish-Arab school in the Galilee. The appeal argued, “the law causes unprecedented harm to historical memory by using the power of the majority in order to try and erase and repress minority narratives about events, facts, emotions and ideologies,” and “seeks to suppress essential ideological disputes that concern the fundamental questions of Israeli society.” The main effect of the law, it was noted, would be “on Arab citizens—who as a national minority should in fact be provided with greater constitutional protection of their right for full civil equality.” Finally, and importantly, the appeal noted that “the immediate effect of the law” would be “a chilling effect on a large public in Israeli society,” not least because “the law employs opaque and vague terms, increasing the uncertainty as to how they will be interpreted by the Minister of Finance and the legal authorities.”44

43   Appeal by Hagai Elad and Hassan Jabarin: www.acri.org.il/he/wp-content/ uploads/2011/05/nakbaletter.pdf. 44  The Association for Civil Rights in Israel, “Abolish the Nakba Law,” January 5, 2012, www.acri.org.il/he/11916; Appeal to Supreme Court of Justice, case 3429/11, May 4, 2011, www.acri.org.il/he/wp-content/uploads/2011/05/hit-4.5.11.pdf.

220 

O. BARTOV

On January 5, 2012, the Supreme Court turned down the appeal. As the President of the court, Justice Dorit Beinisch wrote, the appeal “raises complex issues of public significance” which “may under certain circumstances touch on the roots of the problems that divide Israeli society.” But, she concluded, the appeal “is not mature for a legal debate. On the declarative level the law does indeed raise difficult and complex questions, but the constitutionality of the law depends first of all to a large degree on the interpretive content given to its instructions, and this will be clarified only upon its implementation.”45 What the court did not address, therefore, was the “chilling effect” of the law on publicly airing a historical narrative that undermined the conventional perception of Israel’s constitutive event of 1948. Indeed, the court showed no interest in this debate and thereby implicitly accepted the state’s right to impose its own—and generally the Jewish majority’s—views of the past. While alternative views were eventually not criminalized, within the context of an ongoing conflict over the land and the state’s overwhelming power over its Arab citizens, this could be seen as nothing less than an agreement to stifle the collective memory of a fifth of the state’s population. A nation built on a cult of resurrection and memory could not possibly allow the summoning of the memory of its own birth in sin. One can go back to the desolate remnants of Jewish civilization in Europe and gain an understanding of the cruelty of history: but this understanding can breed either empathy and compassion or determination and ruthlessness. To remember, and to forget: perhaps no other nation has internalized that lesson more powerfully.46 But it is a brittle tool; the mightier the edifice, the more likely it is to crack and disintegrate if built on doubtful foundations. Laws trying to suppress the event, memory, and commemoration of the Nakba are the dark side of legislating Holocaust remembrance. Their roots reach back to all those other attempts to remember and forget for which the Jewish State was supposed to have been the answer. As long as denial of the Diaspora and denial of the Nakba remain at the core of Israeli identity, no law will be able to liberate the state and its people from their own false memories, free them from premonitions of catastrophe, and 45  “Abolish the Nakba Law”; Supreme Court of Justice ruling, case 3429/11, January 5, 2012, elyon1.court.gov.il/files/11/290/034/C04/11034290.C04.htm. 46  In this context, see the remarkable and largely forgotten novel by Dan Ben-Amotz, To Remember, to Forget, trans. Zeva Shapiro (Tel-Aviv: Metziuth, 1979), about this major Israeli public figure’s relationship to his Diaspora past and his remaking into the iconic Israeli.

8  CRIMINALIZING DENIAL AS A FORM OF ERASURE… 

221

allow them to contemplate the possibility of coexistence with the Palestinian inhabitants of the land. From this perspective, too, the Polish-Ukrainian-Israeli triangle can both be broken down into its constitutive parts and be reprioritized. Poland and Ukraine’s relationship to the Holocaust and ethnic cleansing in World War II is about confronting the past. It matters, of course, for nations to be able to look back to the darker episodes of their history clear-­ eyed and critically: not only in order to understand their own making but also so as to build a better, more open, and more just society in the present, free of lies and obfuscations. But ultimately, the borders between Poland and Ukraine are unlikely to be disputed, disagreements about the past are unlikely to cause major conflict, and the minorities that were at the core of those past horrors have been either murdered or expelled. As part of this process, the Jewish component of that era is now largely represented by the state of Israel as the third side of that previously uneven triangle. But in the battles of memory, Israel is in a very different spot vis-­ à-­vis the Palestinians. Here the conflict is far from over, the borders have not been determined, and the populations are mixed as never before. Here memory rises from the recesses of the past fully armed, populating the battlefields of the present as a concrete, lethal presence. One can try to ignore it, avert one’s eyes, and deny its existence or veracity. Yet it will be disarmed not by erasure but only through recognition and acceptance.

PART III

Memory Laws as Majoritarian Assault

CHAPTER 9

Memory Laws: The Continuation of Yugoslav Wars by Other Means Dubravka Stojanović

He who controls the past controls the present. This slogan has a daily presence in Serbia and other former Yugoslav countries where political elites have transferred ethnic conflicts onto the field of history, all the while ostensibly making an effort to conform to European norms and pursue policies that are supposed to impress foreign partners in the EU integration process as attempts at reconciliation and cooperation. Commemorations of events from the 1990s Yugoslav wars, such as holidays, monuments, and street namings are used by opposing sides to revitalize conflicting memories and emotions. Of particular interest for this essay, however, is the use of official declarations and memory laws to ensure the relevance and ‘legitimacy’ of particular historical narratives. Through these official narratives, the ethnic conflicts of the Balkan Wars of the past continue—as Clausewitz’s well-known dictum states, history is a continuation of war by other means. This essay will analyze the parallel effect of two different memory policies and two corpuses of memory laws, primarily in Serbia and Croatia.

D. Stojanović (*) Department of History, Faculty of Philosophy, University of Belgrade, Belgrade, Serbia © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_9

225

226 

D. STOJANOVIĆ

The two countries experienced two simultaneous processes: both changed the official memory of World War II and constituted new memories of the 1990s wars, turning both historical events into factors for renewed instability in the frozen conflict of the Yugoslav peoples. This essay will attempt to demonstrate the ways in which the shifting memory of World War II was first employed to create a psychological possibility of a new war in Yugoslavia. That is, the new, revitalized, and official World War II narrative was used to sow fear among both Serbian and Croatian populations that the crimes and violence of the war would be repeated. In so doing, this new narrative established the psychological groundwork for hatred and aggression toward the other country’s neighbors. Then, in the next stage, the newly constructed narrative of the 1990s was used to justify or conceal the crimes committed in those conflicts. Finally, in the third stage, Serbia and Croatia initiated an additional revision of the official memory of World War II, namely using it as justification for the crimes of the 1990s. In other words, a revitalization of the official memory of World War II, a process that began with the evidence presented at The Hague, created a framework by which the crimes committed during the 1990s could be explained and justified. Simply put, I argue that rehabilitating the ideologies defeated 50 years earlier enabled a rehabilitation and rationale for the crimes of the 1990s, committed in the name of very similar ideologies. To understand the connection between World War II and the wars of the 1990s, a brief historical overview is in order. Yugoslavia had its own World War II.1 The Axis occupation was opposed by the local communist partisan movement led by Josip Broz Tito, who had, with limited help from the Red Army, liberated Yugoslavia at the end of the war. This victory meant victory over the occupiers, victory over the collaborationists, and finally, the political victory of communism in Yugoslavia. This grassroots revolution resulted in the construction of an exceptionally powerful memory policy grounded in the glorification of the winners—the Partisan fighters.2 These fighters became the heroes of the new socialist era and symbols of Yugoslavia, a country founded on ideas of reconciliation and renewal, both of which were necessary after the horrific crimes that its

1  Stevan Pavlowitch, Hitler’s New Disorder: The Second World War in Yugoslavia (New York: Columbia UP, 2008). 2  Hajke Karge, Sećanje u kamenu-okamenjeno sećanje (Belgrade: XX Century, 2014).

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

227

peoples committed against one another during the war.3 Indeed, this point deserves particular emphasis: along with the cruel occupation, the Holocaust, the Partisan revolution, and the struggle against the occupier’s collaborators, the Yugoslav nations fought one another, using the global context to settle their own accounts.4 This intra-regional violence led to mass crimes against civilians, which were particularly brutal against Serbs in the Independent State of Croatia,5 especially in the Jasenovac concentration camp.6 For their part, the Serbian forces, calling themselves Chetniks and led by a pre-war Yugoslav army general, Draža Mihailović, carried out war crimes against Croat and Bosniak civilians in today’s Croatia and Bosnia and Herzegovina.7 In other words, a range of extremist nationalist groups saw the world war as an opportunity to ethnically cleanse territories where the populations had lived together for centuries in multiethnic and multiconfessional empires. The violence and brutality of these actions resulted in serious traumas with regard to the historical memory of Yugoslav peoples, particularly with regard to one another, and the new communist authorities were left with the task of defining a narrative that would simultaneously become the foundation of the new regime, as well as establish the new Yugoslav federation as a reconciliatory state. In his wartime speeches, the leader of the Yugoslav revolution, Josip Broz Tito, defined these new memory policies.8 He ruled that the new historical periodization would be delineated according to what was already then being called “enemy offensives,” major battles between the occupying forces and the Yugoslav partisans. This was to become the only sanctioned, state-monopolized, and official memory, and it served as a guide to many generations. From Tito’s speeches at party congresses, he prescribed the narrative, memory laws, history textbooks, monuments, 3  Olga Manojović-Pintar, Arheologija sećanja, spomenici I identiteti u Srbiji 1918–1989 (Belgrade: Udruženje za društvenu istoriju, 2014). 4  Jozo Tomašević, War and Revolution in Yugoslavia 1941–1945 (Stanford: Stanford UP, 2002). 5  Fikreta Jelić-Butić, Ustaše i Nezavisna Država Hrvatska 1941–1945 (Zagreb: Liber, 1978). 6  Barry M. Lituchy, ed., Jasenovac and the Holocaust in Yugoslavia: analyses and survivor testimonies (New York: Jasenovac Research Institute, 2006). 7  Jozo Tomašević, The Chetniks (Stanford: Stanford UP, 1975). 8  Snježana Koren, Politika povijesti u Jugoslaviji (1945–1960): komunistic ̌ka partija Jugoslavije, nastava povijesti, historiografija (Zagreb: Srednja Europa, 2012).

228 

D. STOJANOVIĆ

­ olidays, school essays, field trips, and street names that monopolized the h memory of the partisan epic and erased all earlier or competing memories, which were consequently pushed into the private sphere. The official memory, a compulsory narrative, served the purpose of papering over the otherwise very dissimilar war experiences, thus turning them into an unlikely shared experience and hardly achievable sense of communion under the central ideological formula of the Yugoslav peoples’ “brotherhood and unity.” All forms of memory in socialist Yugoslavia, from holidays to monuments and rituals, were subordinated to the memory of the national liberation struggle and the socialist revolution of World War II.9 Consequently, all memory was enclosed within the ideology of the ruling Communist Party.10 To this end, a hierarchy among the victims was also created. The long undisputed first place was held by the fighter, the soldier-revolutionary-­ partisan who was ready to give his life for the new political order.11 The creation of the Partisan victim cult erased all other “competing war victims.” In particular, civilian victims were denied the honorary place at the top of the victim hierarchy because they did not fit into the revolutionary narrative that required a conscious, politically justified, and motivated death. Indeed, in addition to being killed by the occupying forces, civilians were victims of the Yugoslav fascist organizations, so the political decision was made not to “reopen those wounds,” and to consign these mutual crimes to oblivion so as not to undermine the recently restored Yugoslavia with memories of the mutual slaughter of her peoples. By denying civilian victims a place in the national narrative, the new state sought to avoid spiraling back to revenge and renewed infighting. The subject of civilian victims thus became something of a taboo, pushed to the margins of memory, and, one could argue, even prohibited by its active erasure from national discourse. Monuments were not built for civilians who lost their lives in the confrontations among the Yugoslav peoples. Instead, remembrance of them remained part of private, family memories of lost relatives. Included in this strategy of official oblivion were Holocaust victims. It should be noted that in occupied Yugoslavia, partly due to the activities of 9  Wolfgang Hoepken, “War, Memory and Education in a Fragmented Society: The Case of Yugoslavia,” East European Politics and Society 13:1 (1998): 196. 10  Vjeran Pavlaković, “Opet za dom spremni. Desetotravanjske komemoracije u Hrvatskoj nakon 1990,” Kultura sjećanja: 1941. Povjesni lomovi i svladavanje prošlosti, eds. Sulejman Bosto, Tihomir Cipek, Olivera Milosavljević (Zagreb: Disput, 2008): 115. 11  Karge, Okamenjeno sećanje, 206.

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

229

collaborators, 95% of the Jewish population was exterminated.12 In relative terms, this made Jewish victims the greatest victims of World War II in Yugoslavia, notwithstanding the fact that the entire country, with its million dead, was among the countries with the highest number of total casualties in the war. And yet, despite the fact that Jews suffered the greatest losses, they did not fit into the new revolutionary narrative, in part because they were civilians, and in part because of the Yugoslav peoples’ culpability in helping the occupying forces carry out the Final Solution with such success. This collaboration corrupted the image of the Yugoslav peoples as the greatest victims, and as a result, it was denied a central space in the historical memory and victim identity of the Yugoslav experience in World War II.13 By privileging one category of victims over another, we arrive at a multi-level memory system: the dominant memory was the official one, incorporated into all memory laws, covering with a heavy blanket the scars of memory, which continued their surreptitious, subversive lives, “passed down from generation to generation.”14 As time passed, and as the regime was increasingly plagued by different crises, it began losing the credibility and strength required to firmly support its ideological pillars, even those of memory; the domain of subversive memories that collided with official memory narratives was expanding, with official narratives growing ever more compromised alongside the weakening regime that created it. Thus, when in the mid-1980s Yugoslavia began to disintegrate, official memory also started breaking down. “Grandpa’s war stories” that conveyed a revisionist stance in its treatment of the victors, and even more so toward the defeated, gradually produced a new form of memory: the memories that had been marginalized, erased, or pushed “under the rug,” gradually began reaching the public. They first “emerged” in literature, which acted as the primary instrument of a new nationalist narrative,15 12  Milan Koljanin, “Holokaust u Jugoslaviji 1941–1944,” Jugoslovenski istorijski c ̌asopis, 1–2 (1996). 13  Dubravka Stojanović, Populism the Serbian way, (Belgrade: Peščanik, 2017) 180. 14  Opa war kein Nazi: Nationalsozialismus und Holocaust im Familiengedachtnis, eds. Harald Welzer, Sabine Moller, Karoline Tsuggnall (Frankfurt am Main: Fischer Taschenbuch Verlag, 2002). 15  The road to war in Serbia: Trauma and Catharsis, ed. Nebojša Popov (Budapest: Central European University Press, 2000); Jasna Dragović-Soso, Saviours of the nation: Serbia’s intellectual opposition and the revival of nationalism (Montreal: McGill-Queen’s University Press, 2002).

230 

D. STOJANOVIĆ

through the extraction of suppressed, private memories. Many saw this phenomenon as the first stage of liberation from an authoritarian regime, a newly found area of freedom, a crack in the monolithic way of thinking and, consequently, in the way society understood the past. But soon it became apparent that this so-called liberation was not so different from the narratives that it replaced: propagators of the “new” World War II memory narratives were simultaneously disseminating nationalist ideologies that were in many ways similar to those defeated in World War II, like the ideologies of Serbian Chetniks and Croat Ustastas. In this sense, the change in the political order and democratic transition facilitated the penetration of fascist discourse into public life, which proved to be a “collateral” consequence of democratization.16 The new memory models had two political goals: they were meant to dismantle communism, but perhaps more importantly, they sought to dismantle Yugoslavia as well. They failed to bring about a critical confrontation with the past and a new, more rational, basis for democratic reconciliation and memory culture, but instead directed neighboring nations against neighboring nations, bringing about new stereotypes and calls for revenge.17 Thus the opening of the repressed memories of World War II in the 1980s gradually brought about historical revisionism and revanchism, which would serve as a basis for new conflicting narratives, and ultimately a new war—the Yugoslav war of the 1990s. Another problem was that these new interpretations of World War II, aimed at undermining communism and the state of Yugoslavia, simultaneously undermined anti-fascism. The new authorities sought to portray themselves as liberators freeing the countries from communism, and they used this opportunity to discard, along with communist ideology, those elements that were ill-suited to their nationalism: Yugoslavia and anti-­ fascism. To achieve this goal, they contrived a symbiotic relationship between communism, anti-fascism, and Yugoslavia, even though Yugoslavia had existed since 1918, and anti-fascism was an integral part of many ideological currents before and during World War II. Given the fact that the new authorities were in large part ideological successors of World 16  Tihomir Cipek, “Sjećanje na 1945: Č uvanje i brisanje,” Kultura sjećanja: 1945. Povjesni lomovi i svladavanje prošlosti, eds. Sulejman Bosto, Tihomir Cipek (Zagreb: Disput, 2009) 159. 17  Oil on Fire? Textbooks, ethnic stereotypes and violence in South Eastern Europe, ed. Wolfgang Hoepken, (Hannover: Verlag Hansche Buchhandlung, 1996).

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

231

War II collaborationists, it suited them to present anti-fascism exclusively as part of the communist movement, because in that manner they could discredit it before the public and score another ideological victory. With rising nationalism, there thus emerged a new phenomenon that analysts named anti-antifascism, which increasingly meant the judicial rehabilitation of movements ideologically close to fascist and Nazi forces during the war.18 Memory researchers can draw several important conclusions from the Yugoslav case. It turned out that earlier memory laws could not even survive the first assault of alternative memories, hitherto stored in the private sphere and other pockets of memory. Official memory has the same lifespan as the regime that fabricates it, and the Yugoslav case illustrates how its demolition can be a first step toward a regime’s deconstruction. This was not an exclusively Yugoslav problem after the fall of communism. But what clearly distinguished Yugoslavia from other East European countries are two facts: its anti-fascist movement was established very early in the occupation, thereby employing new memory policy that required the earlier reality to be completely erased and forgotten, including an acknowledgment of the approximately one million Yugoslav casualties in World War II and the virtual annihilation of the Jewish population. The disintegration or revocation of this memory model could only be accomplished through the invocation of the nearest competing model of memory: the transformation of former villains, World War II collaborators, into heroes. Of all the tragedies produced by the Yugoslav wars, this particular conversion has had the most lasting consequences, and continues to hold sway in former Yugoslav societies, which defend and celebrate perpetrators of unspeakable violence.19 Another important difference between Yugoslavia and other Eastern European nations was the fact that simultaneous with the fall of the Berlin Wall, Yugoslavia was preparing for a war to redraw its borders and redefine the ethnic makeup of a historically multiethnic region. This objective necessarily involved ethnic cleansings and new mass crimes. Significantly, the ideologies that laid the groundwork for the 1990s wars were very similar to those of the collaborationist forces in World War II, which explains why the revisionist memory of World War II became the cornerstone of the  Todor Kuljić, “Anti-Antifašizam,” Godišnjak za društvenu istoriju 1–3 (2005): 171–184.  Todor Kuljić, Prevladavanje prošlosti. Uzroci I pravci promene slike istorije krajem XX veka (Belgrade: Helsinški odbor za ljudska prava u Srbiji, 2002) 63. 18 19

232 

D. STOJANOVIĆ

new war. The new nationalist ideology found its natural allies on the losing side of World War II. The first images on television from the early conflicts in Croatia were those of paramilitary units dressed in uniforms that recalled those worn during World War II, namely black shirts with the Ustasha insignia.20 Among Serbs, the main fashion details became those brandished by Chetnik units in World War II—units which, quite apart from their collaboration with fascist and Nazi forces, were known for having committed brutal crimes against the non-Serb population in the region. During the Balkan Wars of the 1990s, these uniforms became official, and thus the flamboyant historical reminiscences of the past could be seen on the ground. Indeed, while clothing most frequently recalled the World War II, Ratko Mladić, commander of the Serbian forces in Srebrenica, insisted on wearing a hat that, as he himself noted, recalled the legendary Serbian generals of World War I, while others wore berets like those from Rambo movies and various collaborationist World War II uniforms.21

Memory Laws and the Wars of the 1990s After the Yugoslav wars of the 1990s ended, war crimes trials began at the International Criminal Tribunal for the former Yugoslavia (ICTY) and at the International Court of Justice in The Hague, where the belligerent states filed suits for genocide against one another. In addition to convicting criminals, one of the main objectives of the ICTY trials was to confront the past, and help the process of transitional justice and reconciliation. A number of verdicts have been issued, convicting  perpetrators of crimes, and a huge amount of evidence has been collected that is available online. An important fact for this essay is that the International Court of Justice ruled that what happened in Srebrenica, in Bosnia and Herzegovina, was indeed genocide, with Serbia being found responsible for not having prevented genocide and with punishments being meted out to the individuals responsible for committing acts of genocide.22 20  Pavlakovic, “Opet za dom spremni. Desetotravanjske komemoracije u Hrvatskoj nakon 1990,” 123. 21  Ivan Č olovic, Bordel ratnika: folkor, politika i rat (Belgrade: Č igoja štampa, 2000). 22  See International Court of Justice. Reports of Judgments, Advisory Opinions and Orders: Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26 February 2007. www.icj-cij.org/public/files/case-related/91/091-20070226-­ JUD-01-00-EN.pdf, accessed August 20, 2021.

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

233

Apart from these trials, Croatia and Serbia adopted their own declarations and laws that prescribed specific interpretations of the 1990s wars. These memory laws starkly contradicted that which was proven before the ICTY and the verdicts reached in that context. Indeed, the main purpose of these laws was to respond to The Hague verdicts and to proclaim the wars of the 1990s defensive and liberating, with the omission of any reference to crimes perpetrated by one’s own forces or the suffering or victimhood of citizens of neighboring nations.

The Case of Croatia Interestingly, both Croatia and Serbia recorded their respective, preferred interpretations of the past into their Constitutions, binding their citizens through the highest legal act to respect the historical truth as they interpreted it. In its Preamble, the Constitution of the Republic of Croatia mentions events that linearly, almost fatefully, led to the creation of today’s state. The events are listed sequentially, from the first principalities in the seventh century to the war of the 1990s, creating the impression that today’s state was the legitimate consequence of a centuries-long history and its only possible conclusion. This interpretation fully adheres to Popper’s critique of teleological historicism as a reliable basis for all authoritarian orders that rest on the idea of history as a closed system with a clear goal.23 In the Constitution’s unambiguous assessment of the most recent war, it states that the country was founded on the “victory of the Croatian nation and Croatia’s defenders in the just, legitimate and defensive war of liberation, the Homeland War (1991–1995), wherein the Croatian nation demonstrated its resolve and readiness to establish and preserve the Republic of Croatia as an independent and autonomous, sovereign and democratic state.”24 This phrase of a “just, legitimate and defensive war of liberation” would become a key mantra with an almost mystical effect that is ritually repeated as an undisputed truth, becoming the centerpiece of a myth on which today’s official ideology rests.25  Karl Popper, The Open Society and its Enemies (London: Routledge, 1945).   “Ustav Republike Hrvatske,” Narodne novine 85 (2010), narodne-novine.nn.hr/ clanci/sluzbeni/2010_07_85_2422.html, accessed August 20, 2021. 25   See Dejan Jović, Rat i mit. Politika identiteta u suvremenoj Hrvatskoj (Zagreb: Fraktura, 2018). 23 24

234 

D. STOJANOVIĆ

Apart from the legal act required to include a particular memory model into its constitution, Croatia defined its attitude toward the war through two Declarations: the Declaration of the Homeland War in 2000, and the Declaration on Operation Storm in 2006. These documents, although adopted by politically dissimilar governments, sought to define what happened in the 1991–1995 war in Croatia and to create an official narrative with regard to these events. In this sense, both declarations were politically very significant for Croatia, for whom the wars of the 1990s were gradually becoming its founding myth, a myth predicated on the fact that in those wars, Croatia had achieved all its goals: it left Yugoslavia, created an independent state and, after ethnic cleansing, significantly reduced the percentage of the Serbian population, dropping the overall proportion of minorities in its population from 22% to 7.5%.26 However, this reality did not in itself lead to the myth of the Homeland War. According to political scientist Dejan Jović, what happened was a preservation of various special interests in power or in the possession of power, and by creating an image of a victimized and triumphant people, a myth was built that is not to be questioned.27 In the mythmaking process, memory laws played an important part. Chronologically, the Declaration of the Homeland War came first, and was adopted by the ruling Social Democrats in an attempt to reach a political compromise and placate the public. Croatia, under heavy international pressure, had begun to cooperate with the International Criminal Tribunal for the Former Yugoslavia (ICTY), a move which was strongly resisted in both public and political circles.28 Indeed, public and political refusal to cooperate with the court had been obstructing Croatian EU integration for years, and the Social Democrats believed it necessary to cooperate in order to ensure entry into the EU. At the same time, they sought to calm internal resistance to such cooperation by issuing the Declaration that would provide the necessary narrative of the war. More specifically, the Declaration excluded the possibility that crimes were committed and thereby contested potential ICTY judgments in advance. In this sense, the document is a prime example of negotiating the past, but also exemplifies  Jović, Rat i mit. Politika identiteta u suvremenoj Hrvatskoj, 20.  Jović, Rat i mit. Politika identiteta u suvremenoj Hrvatskoj, 30. 28  Snježana Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” Kultura sjećanja: 1991. Povjesni lomovi i svladavanje prošlosti, ed. Tihomir Cipek (Zagreb: Disput, 2011) 128. 26 27

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

235

how a historical event is made totemic and taboo in the process.29 Playing to the nationalists, in order to placate them before the Croatian war crimes indictees were turned over to the Hague Tribunal, it was necessary to pass a declaration which denied the existence of any war crimes, and which formalized the narrative about the nature of the war in Croatia. The idea was to create a balance between the possible ICTY judgments for “domestic use.” Making these events taboo was supposed to render them untouchable for researchers and historians, because the Declaration specified “what actually happened.” As Article 2, the crucial part of the Declaration, reads, “The Republic of Croatia led a just and legitimate, defensive war of liberation, not an aggressive and invading war against anyone, in which it defended its territory from Great Serbian aggression within its internationally recognized borders.”30 The war is thus defined as a consequence of Serbian aggression, a matter which constitutes one part of the debate with the Serbian side, which defines this conflict as a civil war. The distinction between a victim and perpetrator on the one hand, and a civil war on the other, is the subject of a memory war between Croatia and Serbia today. In other words, the Croatian side starts from the position that the 1990s war was a result of an attack on Croatia by the Yugoslav People’s Army and paramilitary and police forces that came from Serbia, after the Croatian declaration of independence on June 25, 1991. This interpretation means that Croatia was attacked from the outside, and thus that its position and response was strictly defensive. The official Serbian narrative, on the other hand, claims that Croatia was not an internationally recognized country when the war broke out (the EEC countries recognized Croatia on January 15, 1992), and that the war was an intervention by the army of the still unified Yugoslav state against Croatian secessionism. Defining the war as a civil war, the Serbian side often cites the fact that conflicts broke out after the rebellion of Serbs who had been living in Croatia for centuries, and so this was a conflict between the country’s citizens.31 In this interpretation, the responsibility for the war shifts to Croatia, and doubly so—as the side that threatened the rights of the Croatian Serbs, prompting them to rebel, and as a secessionist republic that destroyed Yugoslavia by seceding. This interpretation justifies the Yugoslav National Army’s intervention as a legitimate  Jovic, Rat i mit. Politika identiteta u suvremenoj Hrvatskoj, 22.  “Deklaracija o domovinskom ratu,” Narodne novine 102 (2000). 31  Jovic, Rat i mit. Politika identiteta u suvremenoj Hrvatskoj, 57. 29 30

236 

D. STOJANOVIĆ

i­ntervention against the secession of a part of the state. The conflicting narratives of the war’s causes are significant in and of themselves, and for the differences that emerge with regard to the war’s course. Indeed, these differences have contributed to the constantly deteriorating relations between the two neighboring countries. In addition to the definition of the war, the greatest problem with the Declaration on Homeland War is the fact that it explicitly states that the war was purely defensive and that it was fought only on the territory of Croatia, thereby denying the participation of Croatian units in the war in Bosnia and Herzegovina, which began less than a year after the war in Croatia. The war in BiH is an especially important political issue, because it speaks about the complexity of the Yugoslav wars in which there was no sharp distinction between perpetrators and victims. In other words, from 1992, Croatia participated in the Bosnian war in almost the same manner as Serbia, trying to organize the territories inhabited by the Croats into a separate, ethnically cleansed parastate. The ICTY indicted many people from the Croatian areas of Bosnia and Herzegovina, a process which concluded in 2017 with a ruling that convicted the Croatian leadership for a joint criminal enterprise with Bosnian Croats in the war in Bosnia. This ruling stands in complete contradiction with the Declaration on the Homeland War, in which the Bosnian work is not even mentioned. In this sense, the Declaration on the Homeland War provides an excellent example of the denialism of official Croatian memory narratives with regard to their responsibility for the Bosnian war. Another significant section of the Declaration is that which imposes a government monopoly on the truth about the war, because it states that “the fundamental values of the Homeland War are universally accepted by the entire Croatian people and all the citizens of the Republic of Croatia,” excluding the possibility that someone could hold a different opinion on these events. This statement renders sacred the official interpretation of the Homeland War, a point which liberal circles in Croatia are criticizing as a theological and mystical explanation of this event, in contrast with the principles of a free society.32 The Declaration reaffirms this position with a kind of oath which calls on “citizens, government and social institutions, as well as trade unions, NGOs and the media to protect the basic values and dignity of the Homeland War, as a pledge of our civilization’s future,” binding the society not to question the claims made in this document and  Jovic, Rat i mit. Politika identiteta u suvremenoj Hrvatskoj, 199.

32

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

237

instructing them to hold these “historical truths” as holy scripture. Furthermore, the emphasis on the core value of war is, as the Croatian historian Snježana Koren has rightly noted, an intrusion of patriarchal and martial values into modern society.33 The other document, the Declaration regarding Operation Storm, was adopted by a government dominated by the Croatian Democratic Union, a party that was in power during the war in Croatia. This Declaration’s adoption was also motivated by the public alarm surrounding the activities of the ICTY, and in particular the tribunal’s decision to file a joint ICTY indictment against the Operation Storm commanders. Operation Storm was a military operation in 1995, when the Croatian army took back most of the region of Krajina, an area that Serbian forces had declared their parastate in 1991, seceding from Croatia and, during the early months, expelling the Croatian population. After Operation Storm, the authorities in Zagreb took control over almost the entire internationally recognized state of Croatia, but problems arose during and after the operation, which saw the exodus of the Serbian population, with an estimated 200,000 civilians fleeing Croatia in a matter of days and seeking refuge in Serbia. The problem was also the fact that of the remaining Serbs, mostly those prevented from fleeing by old age or illness, some 600 to 1000, were killed after the operation. This event, as well as the participation of the Croatian government in the war in Bosnia, compromised the memory of the victim nation and the exclusively defensive character of this war. After the ICTY issued indictments for Operation Storm, the governing coalition proposed the text of the new Declaration to parliament. The explanation accompanying the proposal stated that this memory law was the result “of attempts by Croatian journalists, the Prosecutor’s Office of the Hague Tribunal, quasi historians and scientists to revise contemporary Croatian history.”34 The Declaration was adopted by an overwhelming majority in June 2006. As Snježana Koren points out, the Declaration is a “fully rounded narrative with a historiographical ambition—it contains crucial facts, actors, purpose, causes and objectives of the campaign, the basic course of events, conclusion and a moral lesson.”35 Since the main  Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” 137.  Quoted after Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” 138. 35  Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” 140. 33 34

238 

D. STOJANOVIĆ

purpose of this Declaration was to answer the charges in The Hague, as revealed in the preamble, the authors primarily felt the need to evaluate the event, so this military operation was assessed in separate articles as “legitimate, victorious, allied, antiterrorist, decisive and legitimate under international law.” The text is filled with overtly nationalistic phrases. For example, in addition to the fact that Article 5 is titled “Decisive battle,” and Article 6, “Unforgettable battle,” the preamble and the narrative use vocabulary that suggest that a warfare myth is being created: “Recalling with excitement, pride and gratitude the dramatic and tragic, but victorious and glorious days (…) when our people realized their historic right to freedom.” This myth of chivalry is incompatible with the crimes perpetrated in this military operation. As a result, the Declaration’s authors had the difficult task of mentioning and condemning the war crimes, but at the same time providing a firm response to the ICTY indictment, which qualified these crimes as a joint criminal enterprise and as ethnic cleansing. Using linguistic acrobatics, the authors tried to express all this: to show concern regarding The Hague indictments, to condemn the crimes, but also to relativize them in the same sentence:36 “Unanimous in condemning each individual crime and all the crimes that really did happen during and after Operations Flash and Storm, whose victims were unfortunately—as usually happens in wars—innocent and helpless civilians.” The phrase “innocent and helpless civilians” conceals the fact that these were Serbian civilians and that the essence of the crime is precisely in their ethnic character, which is one problem. Another problem is that the phrase “as usually happens in wars,” serves to emphasize that this was a typical consequence of warfare and not a premeditated war aim, which is in total contradiction with the Hague indictment. It is interesting how the Declaration treats the war in Bosnia and Herzegovina. Croatian participation in that war is omitted as well, but the claim is made that relations with Bosnia and Herzegovina were those of allies, and that Operation Storm prevented new genocides by the Serbian forces in Bosnia: “Operation Storm” was, as it turned out, organized and carried out at the last minute, because the Serbian forces’ defeat prevented the repetition of the Srebrenica “scenario” in other parts of Bosnia and Herzegovina,37 with which the operation was assigned a humanitarian character as well.  Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” 140.  Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” 140.

36 37

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

239

As Koren concludes, the Declaration is particularly interesting in the section that prescribes the tasks of future historical research. The aforementioned Article 6 (“Unforgettable battle”) explicitly states: “The duty of the Croatian Parliament, Croatian professional community, Croatian academic and educational institutions and the media is to turn Operation Storm over time into a battle that cannot be and will not be forgotten, a decisive, glorious, victorious battle of the Homeland War, which will become part of Croatia’s ‘useful past’ for future generations.” Although the next sentence allows scholars and journalists the right to freely research the “dark side,” this sentence clearly prescribes not only how the battle is to be remembered, but also what institutions and categories of citizens are obliged to foster such a perspective. What is particularly interesting is the concept of “useful past,” which prescribes the mandatory attitude toward these events.38 This view of Operation Storm also directly reflects on anniversaries and commemorations organized each year on August 5, the day the offensive was launched. On that day, which is a national holiday and a non-working day, mass events are organized, and their highlights are concerts of the controversial singer Marko Perković Thomson, often dressed in a  black uniform with World War II Ustasha symbols, working the crowd into a delirium by shouting out “For homeland—ready!”, an Ustasha salute.39 Apart from a few exceptions during the time of a Social Democratic president, Serbian victims are not commemorated on that day. At the same time, in Serbia, there are memorial services and commemorative ceremonies attended by government officials, with speeches about Serbian victims of Operation Storm, which never mention why this operation occurred and why Serbian forces occupied parts of Croatian territory in the early stages of the war. This way, the annual marking of the Operation Storm anniversary is an opportunity to incite new conflicts between the two countries, most often concerning the interpretation of the war.

 Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” 140.  Catherine Baker, Sounds of the Borderland: Popular Music, War and Nationalism in Croatia since 1991 (Farnham, Surrey: Ashgate, 2010). 38 39

240 

D. STOJANOVIĆ

The Case of Serbia For its part, Serbia was less active than Croatia in adopting memory laws, so in the case of this country it is more important to analyze that which was left out rather than that which was said. This lack of prescribed thinking about the past is easily explained by the fact that Serbia essentially lost all four Yugoslav wars (the war in Slovenia in 1991, in Croatia in 1991–1995, in Bosnia and Herzegovina in 1992–1995, and in Kosovo in 1998–1999), so these wars and their causes and character are for the most part not discussed. Milošević’s rule that ended in 2000, shortly after the end of the NATO bombing campaign against Serbia (1999), did not reach the stage of “legalizing” the narratives of those events, and the disoriented coalition that came to power after Milošević was itself divided over the wars’ assessment and the Serbian role in them, so it passed no laws to that effect. That is why only two documents appear as memory laws—the Preamble to the Constitution of the Republic of Serbia and the Declaration on Srebrenica. The Constitution of the Republic of Serbia40 was adopted in 2008, after the process of Yugoslav dissolution had ended, with Montenegro leaving the union in 2006 and Kosovo declaring independence in 2008. At that moment, Serbia, the last ex-Yugoslav republic that eventually remained alone, had to settle the question of its most important legal act. Following fierce debates, a preamble was added to the Constitution that denied Kosovo’s independence and stipulated that government bodies and all citizens must act as if Kosovo was an integral part of Serbia. In other words, it stated that citizens must act as if the independence of this former Serbian autonomous province had not been declared (after unsuccessful negotiations and the NATO bombing campaign caused by violent conflicts and crimes against civilians, followed by yet another round of failed negotiations). The preamble reads as follows: Considering the state tradition of the Serbian people and equality of all citizens and ethnic communities in Serbia, considering also that the Province of Kosovo and Metohija is an integral part of the territory of Serbia, that it has the status of a substantial autonomy within the sovereign state of Serbia and that from such status of the Province of Kosovo and Metohija follow consti40   See Constitution of the Republic of Serbia: www.ustavni.sud.rs/page/view/139100028/ustav-republike-srbije, accessed August 20, 2021.

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

241

tutional obligations of all state bodies to uphold and protect the state interests of Serbia in Kosovo and Metohija in all internal and foreign political relations.41

Omitted in this opening is any mention of Kosovo proclaiming independence or the events that preceded its independence, a silence that speaks louder than words. It not only demonstrates a disregard for reality, but also a tacit denial of everything that happened in Kosovo during the 1998–1999 war. Ignoring this reality, the Serbian Constitution continues to function as a memory law, because it plays a part in creating an impression that nothing happened, that there were no war crimes in Kosovo and that Kosovo still remains an integral part of Serbia, which is the official position. Moreover, based on such an interpretation of the past, this being the supreme law of a country, it directly affects the present and also potential historical research of the Kosovo war, because any analysis of what happened there or possible discussion about the need to recognize Kosovo’s independence could be labeled as anti-constitutional. Major debates in Serbia regarding the 1990s wars begin every year in early July, as the day of commemoration of the Srebrenica genocide (July 11th) approaches. Non-governmental organizations and individuals who objected to Serbian crimes committed during the 1990s wars chose this day to pressure the Belgrade authorities to deal with the recent past and Serbian responsibility for wars and war crimes. Except for the Serbian President Boris Tadic’s 2010 visit to Srebrenica and his apology to the victims’ families, there have been no major developments in Serbia when it comes to facing the horrors of this crime. The landscape became extremely complicated after the International Court of Justice in The Hague gave its verdict on Bosnia and Herzegovina’s lawsuit against Serbia for genocide. The verdict cleared Serbia of responsibility for genocide in Bosnia and Herzegovina as a whole, but it ruled that genocide took place in Srebrenica, and that Serbia was responsible for not preventing it. This alarmed a public that tended to forget war crimes, and President Tadić, under pressure, decided that the Assembly should adopt a Declaration regarding this event. After serious dilemmas, the Declaration was adopted in parliament in 2010. The text states that the Declaration is adopted “in compliance with the verdict of the International Court of Justice, the main judicial body of the United Nations, reached in the 41   See Constitution of the Republic of Serbia: www.ustavni.sud.rs/page/view/139100028/ustav-republike-srbije, accessed August 20, 2021.

242 

D. STOJANOVIĆ

Bosnia and Herzegovina’s lawsuit against Serbia and Montenegro on February 26, 2007.”42 However, in this Declaration key elements of the verdict are omitted. In other words, as already stated, the court ruled that what happened in Srebrenica was genocide, but this word could not be uttered aloud in Serbia. This ruling brought about a remarkable display of linguistic acrobatics: “The People’s Assembly of the Republic of Serbia strongly condemns the crime against the Bosniak population in Srebrenica in July 1995 as determined by the International Court of Justice ruling.”43 Stylistically very clumsy, this formulation was supposed to do the impossible, both to say something and not say it. But by avoiding the use of the crucial term “genocide,” this “partial recognition” implicitly continued to perpetuate Serbian denialism. One could ask how it is possible to admit and condemn a crime, put out a declaration, call for it never to be repeated, and still avoid at all costs the critical term that describes the nature of this crime, particularly since such an action essentially rejects the Court’s ruling in its most severe aspect. Naturally, the government found this ruling troubling, as being found responsible for such a terrible crime is a serious problem, but in this case, I would like to suggest that deeper motives might be at play. While returning to the self-victimization that was discussed earlier, it is important to acknowledge that Serbian nationalism, like nationalism more broadly, is based on the martyrdom of one’s own nation. Starting from the myth about the lost Kosovo battle in 1389, to every “Golgotha,” as difficult moments in Serbian history are typically called, a mythical narrative about the victim-nation was built. Milošević’s entire nationalist movement, which brought about the wars of the 1990s, was constructed on the victim narrative and the idea of a preventive war that would thwart the repetition of the Serbian genocide in Croatia.44 In other words, in the complex binary that exists between victim-as-perpetrator and perpetrator-as-victim, I would submit that the Serb government’s concern in recognizing themselves as perpetrators of genocide is born out of a concern that such acknowledgment would diminish the experience of earlier Serbian victims, 42  “Deklaracija o Srebrenici,” Pescanik, March 31, 2010, pescanik.net/deklaracija-o-­ srebrenici-­2/, accessed August 20, 2021. 43  “Declaration on Srebrenica,” Pescanik, April 1, 2010, pescanik.net/declaration-on-­ srebrenica/, accessed August 20, 2021. 44  The road to war in Serbia: Trauma and Catharsis, ed. Nebojša Popov.

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

243

and even eliminate the reality of calling the Serbian experience in the Independent State of Croatia “genocide”. The assertion being made through the censorship of the term “genocide” implicitly suggests that the categories of “victim” are static. This would imply that the status of victim is exclusive, that it can be attained by one nation only, the one that was victimized in the previous historical moment, that this position is unchangeable and that the status is to be held for all time. This would also mean that the number of victim-nations is limited, that the status once obtained ensures that “competitors” cannot surface in future conflicts. At the same time, it can even mean something more radical—that a people who suffered a genocide cannot, in a later situation, perpetrate the same crime. The victim therefore cannot be (or  become) a perpetrator; he is pardoned in advance. This memory law speaks to how Serbia and Croatia, the two largest countries created by the breakup of Yugoslavia, and the two countries that bear the greatest responsibility for the war in Bosnia and Herzegovina, absolved themselves of responsibility for the greatest crimes committed in Europe after World War II.  The responsibility for the war was passed entirely on to the other side, minimizing, justifying, or completely omitting the crimes of one’s own side for domestic purposes. Memory laws were the mechanism through which both countries prescribed, or at least intended to prescribe, the future narrative of these events, just as it was an effort to abolish the freedom of scholarly, historical, and independent research. The ramifications of these actions, and the dangers they represent, are particularly evident in local communities in Serbia and Croatia, where the weight of verdicts pronounced by international courts has been diminished as a result. More broadly, however, these memory laws illustrate the governmental intention to avoid facing the recent past, and to use this type of interpretation of the past for intensifying conflict in the Balkans.

Back to World War II Apart from denying war crimes in the previous war, over time national narratives in both Serbia and Croatia saw an increasing revision and retelling of World War II.45 The Croatian Parliament adopted a series of  See Ivo Goldstein, Goran Hutinec, “Neki aspekti revizionizma u Hrvatskoj historiografiji devedesetih godina XX stoljeća – motivi, metode I odjeci,” Revizija prošlosti na prostorima bivše Jugoslavije, ed. Vera Katz (Sarajevo: Institut za istoriju u Sarajevu, 2007): 145–170. 45

244 

D. STOJANOVIĆ

­ eclarations relating to the past, with which, according to Koren, “the d government sought to create a public image of the past, but also often acted as an adjudicator between conflicting public views, seeking to uphold certain views of the past as official and suppress the undesirable ones.”46 One particular document should be mentioned, the “Declaration on the Condemnation of the Court Trial and Verdict against Cardinal Dr. Alojzije Stepinac,”47 which was adopted in 1992, during the war in Croatia. This declaration is significant in light of the fact that it rehabilitates a cardinal from the Independent State of Croatia, who was sentenced in 1946 to 16  years of imprisonment and hard labor for collaborating with the Ustasha regime and forcibly converting tens of thousands of Orthodox Serbs to Catholicism. His rehabilitation was raised a step higher in 1998, when the Vatican beatified him, and now the process of his canonization is under way. In 2016, Croatia annulled his 1946 verdict, arguing that he was sentenced in a show trial by the communist regime. In other words, socialist Yugoslavia’s condemnation of the Cardinal was used as a rationale to reject the original verdict and to absolve him from responsibility for cooperating with the Ustasha regime. In vacating the original decision, the Croatian government sought to erase the memory of Stepinac’s crimes, and in so doing to reinterpret the narrative of Croatian actions in World War II such that crimes are diminished and even denied. The Croatian Parliament made another very important decision in 1995, when it adopted the Day of Remembrance of Croatian Victims in the Struggle for Freedom and Independence. The problem with this act was the fact that it officially endorsed the commemoration of Bleiburg victims, members of the defeated collaborationist armies who were, by the end of World War II, eliminated by Tito’s partisan units as they tried to withdraw from Yugoslavia. Their elimination became the cornerstone of the Croatian victim myth48 and is an essential World War II memorial in today’s Croatia. The goal of turning Bleiburg into the main memorial is to erase that which happened beforehand, especially mass crimes against Serbs, Jews, and Roma in 1941–194549—crimes that were committed by  Koren, “Korisna prošlost? Ratovi devedesetih u deklaracijama Hrvatskog sabora,” 128.  “Deklaracija o osudi političkog procesa i presude kardinalu dr. Alojziju Stepincu,” Narodne novine (1992). 48  Vjeran Pavlaković, “Komemorativna kultura Bleiburga 1990–2009,” Kultura sjećanja: 1945. Povjesni lomovi i svladavanje prošlosti, eds. Bost Sulejaman, Tihomir Cipek (Zagreb, Disput, 2009) 174. 49  Ivo Goldstein, Hrvatska 1918–2008 (Zagreb: Novi Liber, 2008) 350–368. 46 47

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

245

those who later fell as victims of Bleiburg. The purpose of this legislation is to rehabilitate the defeated, collaborationist side in World War II, to proclaim that these people were the greatest victims of the war, to “whitewash” their responsibility for crimes and to portray them as national freedom fighters to a large part of the public. Although other collaborators, including Serbian Chetniks were also killed in the events in Bleiburg of May 1945, this event and the city of Bleiburg were completely “nationalized” in the Croatian narrative, with Croats remaining the only recognized victims. I should mention another Bleiburg related sub-narrative: as time passed, during and after the war between the rebelling Serbs and Croats in 1991–1995, the public discourse saw ever clearer and historically erroneous parallels between World War II and the 1990s. Tito’s partisans were inaccurately portrayed as a Serbian army that carried out the slaughter of Croats in Bleiburg for nationalist reasons, a portrayal that drew direct memory links to 1945, and the false suggestion of a continuity of Croatian victimhood at the hands of Serbian aggressors,50 with history presented as a cyclical movement and an everlasting repetition of the same pattern. Even more importantly—this connection created a direct link between World War II and the wars of the 1990s, which then were framed as a natural continuation of the former, even though circumstances and the international historical context were quite different. In Serbia, the revision of World War II began as early as the Milošević era, with the invention of a platitude about two anti-fascist movements in Serbia—Partisan and Chetnik. Such memory amalgamation was typical of the Milošević regime, which itself was a synthesis of socialist and nationalist concepts with broad support from far left-wing and far right-wing political organizations. It was for this reason that he kept “both anti-­ fascisms” under his thumb, maintaining control over both of his political lynchpins.51 However, full revision and rehabilitation of collaborators in Serbia came only after Milošević’s fall, after 2000.52 The reasoning behind this  Pavlakovic, “Komemorativna kultura Bleiburga 1990–2009,” 176.  Dubravka Stojanovic, Ulje na vodi. Ogledi iz istorije sadašnjosti Srbije (Belgrade: Pescanik, 2010) 163–175. 52  See Civic and Uncivic Values: Serbia in the Post-Milosevic Era, eds. Ola Listhaug, Sabrina P. Ramet, Dragana Dulić (Budapest: Central European University Press, 2011). 50 51

246 

D. STOJANOVIĆ

memory gymnastics was simple: the new order portrayed itself like the one that took down communism in Serbia (although it was Milošević who did that, abandoning his communist ideology for a nationalist one in the late 1980s). To find its historical footing and legitimation, the new regime had to define its historical ancestors, and found them in Draža Mihailović’s monarchist and nationalist Chetniks.53 Such a maneuver required a complete transformation of historical facts and quick action on all “memory plans.” In Belgrade, approximately 900 streets were renamed, holidays were changed, and, since 2002, a revisionist interpretation of World War II was introduced into history textbooks. War crimes against civilians and collaboration were now attributed to Tito’s Partisans, while anti-fascism remained only a Chetnik feature.54 A highpoint was reached in 2004 with an urgent adoption of the Law on the Rights of Veterans, Military Disabled Persons and Their Family Members,55 which equated the rights of Chetniks and Partisans.56 This legalized a complete revision of the interpretation of the Chetnik movement, and with that, of World War II itself. In 2015, this bill brought about the rehabilitation of the Chetnik leader, Draža Mihailović, who had been sentenced to death and executed after World War II. As with Stepinac, the confrontation with communism was used to rehabilitate ideas and movements defeated in World War II. The construction of a new World War II image continued with the rehabilitation of Milan Nedić, head of the Serbian puppet government during the German occupation of 1941–1944. Not only is there historical proof that Hitler himself appointed Nedić prime minister, and that Nedić acted in concert with the occupying forces, ordering police to carry out the extermination of Jews in Serbia and sending train convoys to death camps, but his speeches and writings are proof of his unambiguous embrace of Nazi ideology, primarily in his anti-Semitism.57 53  Dubravka Stojanović, “Revisions of Second World War History in Contemporary Serbia,” Serbia and the Serbs in World War Two, eds. Sabrina Ramet, Ola Listhaug (London: Palgrave Macmillan, 2011) 265–282. 54  Stojanovic, “Revisions of Second World War History in Contemporary Serbia,” 273. 55  Aleksandar Ćirić, “Č etnici-partizani 12:5,” Vreme, 21 May 2015. 56  “Zakon O Pravima Boraca, Vojnih Invalida I Clanova Njihovih Porodica,” www.osobesainvaliditetom.rs/attachments/023_Zakon%20o%20pravima%20boraca,%20vojnih%20 invalida%20i%20clanova%20njihovih%20porodica.pdf, accessed August 20, 2021. 57  Olivera Milosavljevic, Savremenici fašizma (Belgrade: Helsinški odbor za ljudska prava u Srbiji, 2010).

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

247

The connection between World War II and the wars of the 1990s is quite clear: since there is a fair degree of ideological continuity between the defeated side in World War II and the forces that led the wars of the 1990s, by rehabilitating collaborators from World War II one arrives at a historical whitewashing of those who committed crimes in the 1990s, many of whom are in power in post-war Yugoslav countries. Naturally, memory laws are exclusively concerned with current political requirements; but in the dangerous case of the former Yugoslavia, there is a concern that they might also determine our new, contentious future. A few lessons can be learned from the Yugoslav case: first, the Yugoslav experience has shown that memory laws fail in their intention to impose an official memory on a society. It is true that the Yugoslav regime was not democratic, which undermined confidence in almost every law, and that this historical narrative was not a “democratic historical truth.” But it is also true that there was sincere empathy for the numerous World War II victims and a strong identification with a country that broke up in a process which left no one unharmed. However, the change of the political regime was also understood as liberation from memorial, statutory dogmas, which in the case of World War II created a dangerous precedent. Memory laws are thus tied to a particular political order, and if the dominant system of values is altered, a dramatic collapse of the previous memory order can occur. Second, there is ample room for the abuse of memory laws. The resolution on European conscience and totalitarianism served as a useful tool in the hands of revisionist forces that were anti-Communist, but ideologically close to fascism. At one interesting discussion at the Sorbonne about the legacy of communism,58 there was a sharp division between the countries that supported this declaration, where communism came on “Russian tanks,” and those countries where communists fought in a civil war, as in Spain, Greece, and Yugoslavia. And even in the latter category, ideology depended upon whether the communist forces were victorious or defeated. This debate has shown how context is invaluable for understanding historical controversies, providing context that laws and declarations themselves are unable to express, as well as all the necessary subtleties inherent to historical complexity. Naturally, first and foremost is the question of historical truth, historical facts, their interpretation, and understanding.

 Articles from that conference published in: European Politics and Society 18.1 (2017).

58

248 

D. STOJANOVIĆ

Declarations are by their very essence, their wording, adverse to any kind of subtle contemplation of the past. Third, the Yugoslav experience has confirmed the necessity for a society to face its role in the Holocaust, not only because of the importance of acknowledgment and redress as part of the work of addressing past wrongs and encouraging empathy with victims, but also because dealing with this issue facilitates a thorough, broader, more critical reevaluation of a country’s past. The Yugoslav case is particularly interesting when it comes to Holocaust memory,59 because the founding myth of that state demanded the glorification of an exclusively partisan, communist movement which liberated the country without the help of the Red Army (except in final operations) and simultaneously carried out a communist revolution. The cult of the People’s Liberation War did not allow competition from other victims, not even the victims of the Holocaust.60 It is thanks to that “oblivion” that the narrative about World War II could be so easily and quickly overturned, and the rehabilitation of forces that cooperated with occupiers and contributed to the successful implementation of the Holocaust so easily realizable. Fourth, it is well known that historical narratives serve the present. This applies in particular to laws that not only reflect the current system of values, but also actively participate in its formation. The Yugoslav case has demonstrated that legislating a narrative about an earlier event was aimed at the historical justification of another, more recent and politically more sensitive event. Because the Yugoslav wars of the 1990s were inspired by ideas that echoed those of the early 1940s, the rehabilitation of criminals from the 1940s simultaneously brought about the heroicization of actors responsible for ethnic cleansings, mass rapes, and genocides 50 years later. Thus, an older memory is used to historically whitewash a newer one, turning both into factors of ongoing instability in the suspended conflict of the Yugoslav peoples. Fifth, in a situation where the first rulings on the Yugoslav wars were made by international courts, declarations and laws were passed in Croatia and Serbia that relativized these rulings, reducing or completely rejecting 59  Jelena Subotić, Yellow Star, Red Star: Holocaust Remembrance after Communism (Ithaca, NY: Cornell UP, 2020). 60  Dubravka Stojanović, “Invisible Victims of the Holocaust. A Role Play: Perpetrators and Victims in Serbian Memory of the Second World War,” Südost-Forschungen 75.1 (2016): 153–164.

9  MEMORY LAWS: THE CONTINUATION OF YUGOSLAV WARS BY OTHER… 

249

those crimes. This reality shows another risk with memory laws, because they can have a greater impact on a national scale than on international law, undermining the system of international justice and its institutions. Instead, countries that instate memory laws take a route of self-indulgence that isolates them from the values and justice of an international system of rights, simultaneously encouraging a departure from a rational connection between past and the present. Indeed, the legal acts adopted in Yugoslavian successor states were aimed at defining the narratives of certain events and, primarily, at clearing the nation that adopted them of any responsibility for crimes. Interestingly, these laws did not limit the freedom of expressing alternative views or narratives, and one must wonder why this was the case. One hypothesis is that the wars of the 1990s were too recent, with societies still deeply divided and sensitive to such censorship. What is more, those who prescribed official narratives in the former Yugoslav countries “had their hands full,” because they needed to work concurrently on the memory of the latest wars and World War II, so one might assume that they found the process too demanding. What we can say with certainty is that in time, with the deepening economic, social and political crises in Yugoslav successor states, the wars of the 1990s have become increasingly “more urgent,” the narratives have become ever more rigid, antagonistic and provocative, with the result that new legal provisions that will penalize counter national narratives can be expected in the near future. Ultimately, without a comprehensive confrontation with the past, especially with one’s own crimes, there is a danger of reviving frozen conflicts. A critical confrontation is not possible when there are memory laws which prescribe a desirable interpretation. The Yugoslav example has clearly shown that there will be no successful conclusion to the transitional justice and reconciliation process, nor what Pablo de Grieff calls the guarantees of non-recurrence,61 if the past is not handled extremely carefully. To be clear, a careful handling of the past does not include the passage of laws. With societies being “memorially plural,” legislation means that memories different than “official” ones will be pushed to the sidelines, where they will wait for a new opportunity. Occasions when this new opportunity emerges are usually dramatic or revolutionary changes in a 61  Pablo de Greiff, “Report of the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence,” Report of the Special Procedure of the Human Rights Council, Geneva: UN, 22 July 2014. digitallibrary.un.org/record/780680, accessed August 20, 2021.

250 

D. STOJANOVIĆ

society, when there is a danger of creating room for identifying with dangerous memory contents which intensify the conflict. What position should one take, aided by history, with regard to controversial issues of the past? A group of historians from all twelve Balkan grappled with this question, and concluded that, among other things, the solution lies in changing the education system, especially history teaching. This approach would prepare students for a critical evaluation of the past, which is the opposite approach to that upon which memory laws are based. Last year, after years of close cooperation, this group of historians published two books of additional teaching materials relating to the Cold War period, as well as to  the Yugoslav wars of the 1990s.62 The basic method applied was multiperspectivity, where sensitive and controversial events were presented from multiple perspectives, as they are seen by different participants whose interpretation of those events is now completely different and liable to foster new conflicts. History should no longer be “the only, prescribed national truth,” closer to religion than to academic discipline. It should become a dialogue of memories, different visions of past events, as well as a dialogue between conflicting sides and countries. This would reduce the scope for manipulation coming from various memory makers and agents, and the students would be better prepared to respond to “fake news from the past.” Conflicts and tensions within communities would be reduced, especially in situations where there are significant differences between “private” and “official” memory. A multiperspectival approach to traumatic past does not mean a relativization of historical truth. As the prominent historian E.H. Carr once said, “It does not follow that, because a mountain appears to take on different shapes from different angles of vision, it has objectively either no shape at all or an infinity of shapes.” A dialogue between perpetrators and victims will not erase the crime. The purpose is to open a discussion on painful subjects within institutions such as schools and to introduce to one another the sections of society that preserve their memories as seeds for new conflicts. Intergenerational dialogue is also introduced, and it can alleviate the deep social shocks which come up when children pose the famous question: “Daddy, what did you do in the war?” This alleviates the “memory war” and prevents the possible open conflict that can be fueled by historical traumas.

 cdrsee.org/projects/education-projects/joint-history-project.

62

CHAPTER 10

Communism Versus National Socialism: Legislation as a Tool of Selective Historical Narrative in Hungary Eszter Kirs

Introduction The current Hungarian governing parties have maintained exceptional power for a decade by a two-thirds majority in Parliament. This position has provided them the opportunity to adopt a new constitution and a wide range of important legal regulations without the need of consensus by any opposition political parties or any substantial or open political dialogue. In the present paper, I seek to explore the legislative avenues employed in the politicization of historical memory. Three aspects of the relevant legislation will be discussed: first, regarding constitutional law, the particular emphasis put on communist crimes by constitutional provisions will be examined; second,  the essay will examine the establishment of the Committee of National Remembrance and its mandate with regard to research and other prosecution-related activities, which focused on the communist past;

E. Kirs (*) Department of International Relations, Corvinus University of Budapest, Budapest, Hungary © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_10

251

252 

E. KIRS

finally, with regard to criminal law, this chapter will explore the adoption of a special law on “communist crimes,” and the unusual legislative response of a judgment of the European Court of Human Rights with regard to the use of communist totalitarian symbols. Importantly, these three developments demonstrate the proactive stance of the governing parties when the revelation of the communist past is at stake, and a corresponding reluctance to inquire and reveal responsibility for crimes committed under National Socialism. As I argue, this politicization of the past, made official through legislative initiatives, reflects the government’s understanding of its role in reinforcing national unity through a vision of national identity and the celebration of a heroic past, one in which there is no space nor political will to acknowledge the state’s responsibility for the anti-Semitic atrocities carried out before and during World War II. I started to draft this chapter on a special day in Hungary’s history, 4 June 2020, the 100th anniversary of the signature of the Treaty of Trianon, which officially ended World War I for the country. It provided for the status of the independent Hungarian state and defined its borders. The territory of the state was reduced by two-thirds, with the result that more than three million ethnic Hungarians found themselves living outside the borders of the post-war state. In 2010, the Hungarian Parliament declared 4 June the Day of National Togetherness to officially commemorate “one of the gravest historical tragedies of the Hungarian people.”1 Contemporary public discourse and political action at the parliamentary sessions related to this day, and the consequences of the Trianon Treaty in these discussions, demonstrate how divided the country is and how politicized the discourse is with regard to the memories of the twentieth century. Thus perhaps it is not surprising that, immediately following the change of the regime from communism to the new born democracy, on 4 June 1990, the representatives of the currently governing political party, the FIDESZ (Fiatal Demokraták Szövetsége, Alliance of Young Democrats), left the parliamentary chamber. The reason related to the fact that the Speaker of the National Assembly made a commemorative declaration about the Trianon Treaty without negotiating its terms with all parliamentary parties. The FIDESZ complained that the Speaker failed to listen to different opinions about the case and thereby failed to ensure 1  Act XLV of 2010 on National Togetherness (2010. évi XLV. törvény a Nemzeti Összetartozás melletti tanúságtételről), May 31, 2010.

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

253

parliamentary consensus before making a declaration about this highly important historical issue.2 Fast-forward to the present, 30 years later, at the commemorative session of the Parliament on 4 June 2020, the Speaker of the Parliament (László Kövér, member of the FIDESZ) and the Head of State (János Áder, who has held this position since 2012 based on the appointment of the FIDESZ) delivered speeches followed by discussion about the latest commemorative declaration. The opposition parties were not allowed to intervene or contribute to this discussion, demonstrating the lack of open debate about the issue even 30 years following the events under discussion. One of the opposition political parties, the MSZP (Magyar Szocialista Párt, Hungarian Socialist Party) filed a proposal to amend the agenda of the session to let other parties’ representatives speak, but the initiative was rejected.3 Explaining the reason for excluding the opposition political parties from the parliamentary debate, the Speaker of the Parliament, László Kövér made the following statement: The HuAQ1ngarian left, for more than a hundred years, has repeatedly attacked its own nation. Our borders would not have been defined as done in Trianon if the Hungarian left had not betrayed the nation in 1918-19. Today’s left liberal politicians are not dedicated to the nation. A minority of leftist politicians is ashamed of their views about the nation and fails to promote it. Others of theirs try to pretend to be nationalistic in certain issues out of political calculations but show their left liberal faces in determining moments. The third group of them is reprobate nation-haters.4

With these words, Kövér puts forth a vision of the leftist parties as an abstract entity of an ‘eternal left’, connecting past with present and suggesting that the betrayal of the nation represented by the Trianon Treaty

2  Minutes of the 10th Session of the Hungarian Parliament, June 4, 1990. www.parlament. hu/naplo34/010/0100003.htm, accessed August 22, 2021; www.parlament.hu/ naplo34/010/0100034.htm, accessed August 22, 2021. 3  “Az ellenzék nem szólalhat fel a trianoni szerződés évfordulóján tartott parlamenti emlékülésen,” HVG, June 3, 2020, hvg.hu/itthon/20200603_Az_ellenzek_nem_szolalhat_fel_a_trianoni_szerzodes_evfordulojan_tartott_parlamenti_emlekulesen, accessed August 22, 2021. 4  “Kövér László: A jövőt illetően hinni kell az egy isteni örök igazságban,” Magyar Nemzet, June 3, 2020, magyarnemzet.hu/belfold/kover-laszlo-a-jovot-illetoen-hinni-kell-az-egy-­ isteni-orok-igazsagban-2-8192066/, accessed August 22, 2021.

254 

E. KIRS

precludes, even 100 years later, the need for balanced, open and reasonable debate with the opposition parties. The repressive regimes established in Hungary following the Trianon Treaty and World War II continue to be politically fraught topics of analysis, and even in the 30 years that have passed since the establishment of Hungarian democracy, no official process of truth revelation with the involvement of all sides and all political stakeholders has been undertaken. The result, as seen with the June 4 commemoration, is that the history of twentieth century Hungary remains a field of political battles. I will not attempt in this essay to provide an analysis of the roots and consequences of the relevant social and political phenomena; rather, I seek to explore Hungarian legislation related to the official memory of the Nazi and communist regimes. In particular, this chapter focuses on primary legislation that not only defines the rightness or wrongness of particular historical positions, but also bears strong symbolic meaning by putting forward a revisionist view of the past that frames Hungary as a fighting nation, which has protected Europe and Christianity for centuries. More specifically, I focus on the years following the adoption of the Fundamental Law in 2011. Readers will remember that the Hungarian Constitution, which is the primary basis of the legal system defining the fundamental norms for any further legislation and state authorities’ action, and which was adopted by the governing parties as a declaration of a new “change of regime” in 2011, met with national and international criticism, in large part because of the majoritarian, nationalist sentiment and treatment of the past which are made official through this document. By focusing on the years following this date, I seek to examine the current legal and political order, and in particular the political scene determined by the two-thirds majority of the FIDESZ-KDNP in the Parliament. This majority provided extraordinary legislative and constitution-making power to the two allying parties under the leadership of Prime Minister Viktor Orbán, which in turn has informed a politicized use of historical memory meant to adhere to the majoritarian views of the Orbán government.

Constitutional Basis: The Fundamental Law Before discussing the most important provisions related to national memory about the past, repressive regimes contained within the Fundamental Law, it is worthwhile to consider the political context of the creation of the currently applicable Hungarian constitution. The

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

255

governing parties, the FIDESZ-KDNP won the 2010 parliamentary elections, gaining slightly more than two-thirds of the seats of the Parliament. They have maintained this majority ever since, providing them with the opportunity to introduce radical changes in the constitutional system of Hungary without legally requiring them to seek consensus from other parties. The new constitution put forth with the Fundamental Law was adopted on 18 April 2011 and made official on 1 January 2012. The preparatory phase of the process was short,5 with the first version of its text being drafted in a very brief few months, an abbreviated timeframe that itself illustrates the lack of transparency and debate that troubled and defined the entire constitution-making process.6 Opposition political parties either voted against the adoption or were demonstratively absent from the voting in protest of the procedures taking place. In both cases, a substantive discussion was absent, with the Fundamental Law passing on a party-­ line vote.7 The government claimed transparency through its newly introduced “National Consultation,” which initially involved paper-based questionnaires that were mailed out to all Hungarian households. Subsequently, the questionnaire was made available online, which, while it may have expanded the number of respondents, was problematic because it allowed multiple submissions by the same person.8 Equally problematic was the fact that no independent stakeholders were granted access to the incoming 5  The draft was submitted to the Parliament on March 14, 2011. Parliamentary Resolution 9/2011. (III. 9.) on the preparation of the adoption of the new Constitution (9/2011. (III. 9.) OGY határozat az új Alkotmány elfogadásának előkészítéséről. 6  Critical remarks related to the constitution-making process were articulated not only by domestic academic and political stakeholders but also by international institutions, such as the Venice Commission of the Council of Europe; “Opinion on three legal questions arising in the process of drafting the New Constitution of Hungary,” European Commission for Democracy through Law, adopted by the Venice Commission at its 86th Plenary Session, Venice, March 25–26, 2011. 7  Pál Sonnevend, András Jakab, Lóránt Csink, “The Constitution as an Instrument of Everyday Party Politics: The Basic Law of Hungary,” Constitutional Crisis in the European Constitutional Area, eds. Armin von Bogdandy, Pál Sonnevend, (Portland, OR: Hart Publishing, 2015), 46; Zoltán Miklósi, “Constitution-Making, Competition and Cooperation,” Constitution for a Disunited Nation—On Hungary’s 2011 Fundamental Law, ed. Gábor Attila Tóth (Budapest: Central European University Press, 2012): 59–81. 8  The online platform grants access only to the latest consultation without any sufficiently detailed information about past consultation results. nemzetikonzultacio.kormany.hu, accessed August 22, 2021.

256 

E. KIRS

answers to verify the results, a process that was managed solely by the government. Such national consultations have been used as a political tool to frame and emphasize policy issues that are part of the political agenda of the party in power, and thus there is a particular emphasis on governmental measures related to, for example, immigration and the “Soros Plan,”9 or the alleged protection of families. Not only are the questions politicized in terms of the subjects they focus on; they have been criticized because they are framed to lead respondents to answer in a certain way, or to disseminate misleading information.10 The eighth question of the 2011 consultation, for example, asked respondents to speak to national identity, referencing Hungarian minorities who did not reside within the country’s borders as follows: “There are those who suggest that the new constitution of Hungary should express the value of national togetherness with members of the Hungarian minorities living outside the borders, while others deem it unnecessary. What do you think?” The wording of this question is noteworthy, particularly the phrasing, ‘National Togetherness,’ which is a term rooted in a 1990 speech of József Antall, the first democratically elected, Christian Democratic Prime Minister after the change of regime from communism.11 In political discourse, the status of Hungarian minorities in neighboring countries is closely connected to the concept of “greater Hungary” due to the fact that previous generations of Hungarian minorities living in bordering nations fell outside of Hungary’s sovereignty due to the aforementioned Trianon Treaty, which is viewed as a trauma that cannot be processed or accepted by the Hungarian right wing. Due to the abstract terms of the question, the outcome published by the government was not surprising: 61% of the (somewhat more than 900,000) 9  According to the governmental propaganda, George Soros plans to settle immigrants in Europe in order to change the culture and population in an irreversible way. This—as the government explained—would endanger European and Hungarian communities and traditions, which the Hungarian government intends to protect by its anti-migration policies. 10  Agnes Batory, Sara Svensson, National consultations: A mix of old and new technology in Hungary, Tropico Project, June 29, 2019, tropico-project.eu/cases/administration-costs-­ for-bureaucracy/national-consultations-a-mix-of-old-and-new-technology-in-hungary/, accessed, August 22, 2021. 11  At a meeting of his party, the Hungarian Democratic Forum (Magyar Demokrata Fórum), he declared that even though legally, he would be the Prime Minister of 10 million Hungarians (the population of the country), in spirit, he was the Prime Minister of 15 million Hungarian people (all those living inside and outside Hungary, including those who were descendants of Hungarian people who became inhabitants of neighboring countries due to the Trianon Treaty).

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

257

respondents answered that the government should be obliged by the constitution to protect the value of national togetherness.12 The national consultation thereby provided an additional point of reference underpinning the role of the government as the primary protector of national unity, and allowing the government to claim an illusory legitimacy basis for drafting the constitution accordingly. The governing parties as constitution-makers ensured that national pride and unity were prioritized in those provisions of the Fundamental Law that related to national memory too. They kept silent on sensitive issues (e.g. access to communist-era domestic intelligence records or Hungary’s responsibility for mass atrocities during the Holocaust) in order to avoid being divisive, but they were explicit about issues seen as essential in terms of the shaping of a Hungarian historical narrative and the identity of citizens, such as, for example, the maintenance of the “historical” constitution uninterrupted by foreign occupations.13 As to the repressive regimes of the twentieth century, the Fundamental Law’s preamble (titled ‘National Avowal’), reflects on both the National Socialist and the communist era. In arguing that the Fundamental Law builds on the continuance of the Hungarian “historical constitution,” the preamble suggests that the constitution was suspended when the German occupation began, and that due to foreign occupations, it was only restored on 2 May 1990, when communism had ended, and the first session of Parliament was convened. In addition, the Preamble declares the lack of a statute of limitations in cases of “inhumane sins” committed against the Hungarian nation and citizens under the power of the National Socialist and communist dictatorships.14 This declaration has important implications, as it

12  “Az új alkotmánnyal kapcsolatos nemzeti konzultáció eredményeiről,” Report about the results of the national consultation on the new constitution, March 28, 2011, 2010-2014. kormany.hu/hu/miniszterelnokseg/miniszterelnok/beszedek-publikaciok-interjuk/az-uj-­ alkotmannyal-kapcsolatos-nemzeti-konzultacio-eredmenyeirol, accessed, August 22, 2021; w w w. k o r m a n y. h u / d o w n l o a d / 2 / d 3 / c 0 0 0 0 / K o n z u l t á c i ó k % 2 0 e r e d m é n y e i . pdf#!DocumentBrowse. 13  Miklós Könczöl, “Dealing with the Past in and around the Fundamental Law of Hungary,” Law and Memory: Towards Legal Governance and History, eds. Uladzislau Belavusau and Aleksandra Gliszczynska-Grabias (Cambridge: Cambridge UP, 2017) 261. 14  The Fundamental Law of Hungary (Magyarország Alaptörvénye), April 25, 2011, National Avowel, njt.hu/translated/doc/TheFundamentalLawofHungary_20191213_ FIN.pdf, accessed, August 22, 2021.

258 

E. KIRS

means that acts interpreted as such will be punishable without any consideration as to when they were committed.15 Even if its preamble seems balanced with regard to its treatment of the two repressive regimes of National Socialism and communism, the entire text of the Fundamental Law includes more specific articles only about the communist regime, and thereby puts more emphasis on atrocities committed by it, dedicating no further reference to the country’s National Socialist past. The Fundamental Law does not mention, for example, the state’s responsibility for mass atrocities during the Holocaust, despite the widely known, willing participation of Hungarian authorities in contributing to the swift and extensive deportation of more than 400,000 Jews. This silence reinforces the current government’s denial of Hungary’s responsibility in its  collaboration with the Nazi regime—denialism that was demonstrated by the erection of a commemorative statue on the 70th anniversary of the German occupation. The monument, erected in 2014, depicts Hungary as the Archangel Gabriel being attacked by a German imperial eagle, and its construction was greeted with a wave of protests and flash mobs organized and attended by a large number of citizens, Jewish organizations, historians, and artists. The statue—as explained in an article signed by 26 historians—falsifies history and relativizes the events of the Holocaust by representing both victims and collaborators as shared victims of the German occupation, enhancing the right-wing narrative that only the Germans and the Hungarian Fascists were responsible for the genocide.16 The Fundamental Law’s focus on the country’s communist past provides the ruling party with the means to legislate memory insofar as it regards the current socialist party as well. Thus, Article U declares that the communist dictatorship is not compatible with the rule of law created by the first free elections upon the change of regime, in 1990. With this assertion, the law defines the Hungarian Socialist Workers’ Party and all agencies established based on the communist ideology as criminal enterprises. 15  In the case of international crimes, this principle is applied globally. However, the vague term appearing in the Fundamental Law (“inhumane sins”) raises concerns related to acts, which might be interpreted as “inhumane” but do not qualify as international crimes. As a main rule, if they are crimes solely under domestic law, they cannot be prosecuted after a certain lapse of time. 16  Daniel Nolan, “German occupation memorial completed under cover of darkness,” The Budapest Beacon, July 21, 2014, budapestbeacon.com/german-occupation-memorial-­ completed-under-cover-of-darkness/, accessed, August 22, 2021.

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

259

Without a statute of limitations, their leaders shall be called to account for (among other things) maintaining an oppressive regime, betraying the nation, terminating the initiative of a multiparty system after World War II with the assistance of Soviet military assistance, depriving citizens of their human rights, in particular for murdering them, delivering them to foreign power, unlawfully imprisoning them, torturing them, or suppressing the 1956 revolution with Soviet assistance.17 A significant point of interest in this detailed provision about political and criminal responsibility declares that, “Political organizations that gained legal recognition during the democratic transition as legal successors of the Hungarian Socialist Workers’ Party continue to share the responsibility of their predecessors as beneficiaries of their unlawfully accumulated assets.”18 Importantly, the Hungarian Socialist Party (MSZP) was created in 1989 by former members of the Hungarian Socialist Workers’ Party; at the time of the adoption of the Fundamental Law, it was the largest opposition political party. Framing the party as the successor to the communist party, and thus responsible for its actions—without consideration for its changing membership or evolving ideology—exemplifies the politicization of the memory of Hungary’s communist past, and the ways in which the ruling party seeks to use historical reflection to politically weaken its political adversaries. Instead of defining a framework that would ensure individual criminal responsibility for mass atrocities—responsibility that would be relevant to both the National Socialist and communist regimes—Article U remains silent on crimes committed under National Socialism, and, in focusing unilaterally on the communist dictatorship, proposes a blurred message about collective responsibility that suggests more about the ruling party’s own political position than about acknowledgment or redress with regard to past crimes. In addition to questions of historical criminal and political responsibility, Article U provided for the establishment of a Committee of National Remembrance. The provision suggests that this committee was to function as a truth commission, revealing the operation of power and the roles that individuals and organizations played under the oppressive regime, with the results of its investigations to be published in a comprehensive report. However, the specific terms of operation of the Committee were 17  Article U (1), The Fundamental Law of Hungary, Ministry of Justice, Hungary, April 25, 2011, 6–7, www.refworld.org/pdfid/53df98964.pdf, accessed August 25, 2021. 18  Ibid., 7.

260 

E. KIRS

not defined by the Fundamental Law; its authority, special rights, and powers were not clearly regulated, and the Committee was simply given the mandate to focus on the memory of the communist dictatorship.19 While the establishment of a historical commission is much needed in order to allow the country to examine the history of the twentieth century, an open, balanced and multiperspectival discourse about both the National Socialist and communist past of the country, and the ways in which these legacies continue to impact Hungary’s political discourse is a far cry from the political Committee defined by the Fundamental Law.

Official Truth Revelation: The Committee of National Remembrance Based on Article U (3) of the Fundamental Law and upon the initiative of the government, Act CCXLI of 2013 was adopted to specifically regulate the mandate and operation of the Committee of National Remembrance. This piece of legislation extended the authority of the Committee from that initially articulated in the Fundamental Law. In addition to conducting research and raising awareness about the role that individuals and organizations played in the maintenance of the communist regime from 21 December 1944 to 2 May 1990, the Committee was mandated by the law to initiate criminal investigations under the Chief Prosecutor of Hungary and to cooperate with the prosecution,20 although it has not been invested with the power to conduct criminal investigations or public hearings. Rather, the Committee may record witness statements and conduct research. At the same time, the reports published, and the statements made by the Committee, are not appealable in any court of law.21 As to its mandate, it became a hybrid institution, a public authority funded by the 19  Ibid. Article U (3) 7. In this regard, it is interesting to compare it with another historical commission of the region of Central and Eastern Europe, the Institute of National Remembrance of Poland. As opposed to the Hungarian committee, the Polish institute is mandated with research and awareness-raising about history and crimes committed from 1917 to 1990, including both the National Socialist and the communist era (ipn.gov.pl/en/ about-the-institute/mission/2,Institute-of-National-Remembrance-Commission-for-the-­ Prosecution-­of-Crimes-again.html, accessed, August 22, 2021). 20  Ibid., Article U, The Fundamental Law of Hungary, 7–8. Act CCXLI of 2013 on the Committee of National Remembrance (2013. évi CCXLI. törvény a Nemzeti Emlékezet Bizottságáról), December 23, 2013, Article 1 (5), 20 (1) i). 21  Ibid., Article U (1), The Fundamental Law of Hungary, 6–7.

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

261

state budget,22 which primarily conducts academic research and media monitoring. While the government established its “own” historical commission, it undermined the independent operation of a widely recognized and successful academic institution, the 1956-Institute, which had already done extensive and valuable research on the communist regime. A brief introduction of the Committee will be useful in considering its role more broadly, as will concerns related to the incompatibility of the Committee with the rule of law, which were articulated by civil society representatives. The Committee is composed of five members who have Master’s degrees, five years of practice in social sciences, and were born after 1972. The term of office is 9  years. The Chair of the Committee and two members are elected by the Parliament in confidential voting, while one member is appointed by the President of the Hungarian Academy of Sciences, and one additional member by the Minister of Justice.23 External experts can be involved in the academic research of the Committee.24 The institution, currently organized into nine working groups, has been mapping previous relevant research, conducting its own academic research, and is building a mostly domestic professional network with academic institutions, archives, museums, and state authorities. It has published its findings in papers, reports and at public conferences,25 with its latest project, which focuses on repression following the 1956 revolution, launched in 2019.26 Representatives of both academia and civil society have criticized the way in which the Committee has operated, and their concerns point to the revisionist history that is implicit to the Committee’s mission. Krisztián Ungváry, a widely recognized Hungarian historian and former staff member of the 1956-Institute,27 noted that in the same period that the government was working to establish the Committee, it undermined the operation of the 1956-Institute Foundation,28 which had already  Ibid., Article 26 (1), The Fundamental Law of Hungary, 26.  Ibid., Articles 4–9, The Fundamental Law of Hungary, 16–20. 24  Ibid., Art 30 (1), The Fundamental Law of Hungary, 27–28. 25   Nemzeti Emlékezet Bizottsága, “Publications,” neb.hu/hu/publikaciok, accessed, August 22, 2021. 26   Nemzeti Emlékezet Bizottsága, “Perek56.hu,” neb.hu/hu/perek56hu, accessed, August 22, 2021. 27  1956 Institute—Oral History Archive, www.rev.hu, accessed, August 22, 2021. 28   “Nem bizottság, hanem törvény kell,” Index, March 19, 2012, index.hu/belfold/2012/03/19/nem_bizottsag_hanem_torveny_kell/, accessed, August 22, 2021. 22 23

262 

E. KIRS

­ ndertaken extensive and in-depth research on the communist dictatoru ship and managed the rich Oral History Archive (OHA). The Orbán government, once again undercutting historical research, closed the 1956-Institute Foundation in 2012, after which it became a department within the National Széchenyi Library—a move that resulted in a significant cut of funding and staff. In 2019, the historical research institute was incorporated into the Veritas Historical Research Institute. The small team that had managed to ensure that research continued even after the 2012 changes, resigned in protest,29 as the Veritas Historical Research Institute, established in 2013, was known for promoting historical views that coincided with those of the government’s leadership.30 The former Head of the 1956-Institute shared his view about this governmental measure with the public in an interview, stating, “This step marks the termination of the 1956-Institute. The story [of the Institute] ends here and now. The Veritas Institute is under the supervision of the government, where the freedom of research is not guaranteed.”31 Founders, staff members and interviewees of the OHA signed an open letter to oppose the integration of the 1956-Institute and the OHA into the Veritas Institute. In their view, the Institute served a pre-defined ideology that aligned with party politics; it had a proven lack of impartiality and it would not guarantee the requirements related to academic freedom and scholarly independence.32 Even though opposing views were expressed by experts and interviewees (of whom the latter were former victims of communism), the government failed to respect these views, refrained from dialogue, and the 1956-Institute and the OHA were incorporated into the Veritas Institute. All former staff members of the 1956-Institute declined to continue their work within the walls of the Veritas, with the exception of the aforementioned Krisztián Ungváry, who remained in his position for three weeks to 29  9/2019 (II. 5.), Govermental Decree on the Veritas Historical Research Institute and Archive (9/2019 (II. 5.) Korm. rendelet a Veritas Történetkutató Intézet és Levéltárról, veritasintezet.hu/hu/, accessed August 22, 2021. 30  “Orbán moves against historical research: The first victim is the 1956-Institute,” Hungarian Spectrum, June 2, 2019, hungarianspectrum.org/2019/06/02/orban-moves-­ against-historical-research-the-first-victim-is-the-56-institute/, accessed August 22, 2021. 31  “Rainer M. János: Vége az ‘56-os Intézetnek, és én nem fogok a Veritasba átmenni,” HVG, May 31, 2019, hvg.hu/kultura/20190531_rainer_m_janos_56_os_intezet_veritas_ intezet, accessed August 22, 2021. 32  “Petícióban kérik értelmiségiek az 56-os Intézet megtartását,” HVG, June 5, 2019, hvg. hu/kultura/20190605_Peticioban_kerik_ertelmisegiek_az_56os_Intezet_megtartasat, accessed August 22, 2021.

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

263

seek information about the reasons behind the absorption of the institute under a government supervised body. He shared his experiences during this brief period in an interview after he quit his job, reporting that, while he did not witness any sign of internal censorship within the Institute, there was a different level of control—control that came from the governmental level.33 While the establishment of the Committee of National Remembrance was overshadowed by the annihilation of the 1956-Institute, representatives of civil society articulated further controversies related to its (i.e. the Committee’s) composition and operation. The Hungarian Civil Liberties Union (HCLU, Társaság a Szabadságjogokért), a leading human rights organization in the country, declared the regulation of the Committee as incompatible with the rule of law. The HCLU was largely concerned with the hybrid character of the Committee, namely that it conducted academic research while also holding public authority through its special power to trigger criminal investigations. The HCLU also found that Act CCXLI, which mandated the establishment of the Committee, did not include sufficient guarantees to ensure that the academic research of the recent past would be conducted by scholars and academics. In other words, there were not sufficient protections to guarantee that it would not become the privilege of a state authority. Furthermore, the organization emphasized the risk of potentially serious human rights violations deriving from the fact that the reports and findings of the Committee could not be appealed before any court of law. As to the election and appointment of the Committee members, the HCLU shed light on the fact that neither the Parliament nor the Minister of Justice appointing members of the Committee were competent in determining the academic eligibility and qualifications of the candidates. In conclusion, the HCLU determined the Committee to be an institution of a hybrid character that was clearly problematic: on the one hand, it acted as an academic institution with regard to its research mandate; on the other, it functioned as a public authority with regard to its special judicial powers.34 This potent combination was 33   “‘Megkövetem a Veritast’—Ungváry Krisztián trollkodásról, ‘díszgoj’-szerepről és távozásának valódi okairól,” Válasz Online, July 17, 2019, www.valaszonline. hu/2019/07/17/ungvary-krisztian-veritas-intezet-interju/, accessed August 22, 2021. 34  A Társaság a Szabadságjogokért Álláspontja a Nemzeti Emlékezet Bizottságáról szóló törvényjavaslatról, December 18, 2013, tasz.hu/files/tasz/imce/allaspont_neb_20131218. pdf, accessed August 22, 2021.

264 

E. KIRS

emblematic of the ways in which historical memory was used in order to enhance the political narratives of the Orbán government. Given the tensions regarding the establishment and goals of the Committee of National Remembrance, it is instructive to consider the Committee within the broader framework of truth and historical commissions. Such a consideration is particularly useful because, with a mandate that includes the construction of collective memory and the power to trigger criminal investigations, the Committee embodies characteristics of both types of commissions. While truth commissions vary widely in their nature and functions, a recurring point of reference has been the definition set forth by Priscilla Hayner, who defined the contours of truth commissions along the following four major characteristics: they focus on the past, not on contemporary human rights abuses; they investigate a pattern of abuse over a period of time (as opposed to focusing on a specific event), based on a normative framework defining the time period and the types of human rights violations to be investigated; they are temporary bodies completing their operation with the publication of a final report; and finally, they are officially authorized by the state to access a wide scale of information needed for the revelation of systematic patterns of abuse.35 In addition, truth commissions strive for a broad inclusion of former perpetrators and victims, the collection of sufficiently convincing evidence and representative examples that are needed for an overall picture of past atrocities.36 The findings of truth commissions ideally enjoy wide acceptance in the relevant society. Their legitimacy is rooted in the widest possible inclusion of domestic political stakeholders, including experts, civil society representatives, and members of local communities in the commission’s establishment and operation. This latter factor determines their potential impact on balanced public, political, and historical discourse. The Hungarian Committee of National Remembrance can be described by some, but not all, of the above characteristics. It is mandated to investigate the past, with the ability to consider a pattern of human rights violations instead of a specific incident. In addition, it is authorized to access a 35  Priscilla B. Hayner, “Past Truths, Present Dangers: The Role of Official Truth Seeking in Conflict Resolution and Prevention,” International Conflict Resolution after the Cold War, eds. P.C. Stern, D. Druckman (Washington, DC: National Academy Press, 2000) 341. 36  Rodolfo Mattarollo, Truth Commissions, in Post-Conflict Justice (Ardsley, NY: Transnational Publishers, 2002); Priscilla B. Hayner, “Truth Commissions: a schematic overview,” International Review of the Red Cross 88.862 (2006); Eric Wiebelhaus-Brahm, “Truth Commissions,” Routledge Handbook of International Criminal Law, eds. William A. Schabas, Nadia Bernaz (New York: Routledge, 2011) 369–383.

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

265

wide range of information and to trigger criminal investigations—although it has never initiated any criminal proceedings. However, the Committee is not a temporary but a permanent body without the responsibility or catharsis that the publication of a final report might represent. As to its legitimacy and a wide acknowledgment of its findings, neither its establishment nor its operation has been based on negotiations or consensus of all the relevant sectors of Hungarian society. Instead, it is seen by the public as another political tool in the hands of the government to rule over national historical narratives of the twentieth century.

Criminal Justice Responses: ‘Communist Crimes’ and the Use of Totalitarian Symbols In addition to truth revelation and selective memory, governmental policies on political messaging related to the communist era have resulted both in the adoption of a special law on ‘communist crimes’ and in an unusual parliamentary response on judgments delivered by the European Court of Human Rights (ECtHR) related to the use of totalitarian symbols. Both the adoption of the special law and the unusual response on an ECtHR judgment demonstrate the ruling parties’ proactivity in raising voices and taking actions to highlight the significance of accountability for crimes committed under communism—accountability that seeks to acknowledge the feelings and experiences of victims of communism. However, the law fails to take similar steps when it comes to examining the country’s National Socialist past, again providing evidence for the politicization of memory and the creation of an understanding of the past that coheres with the majoritarian impulses of the Orbán government. The draft bill of the special law on ‘communist crimes’ was submitted by a member of the FIDESZ as a direct response to the case of Béla Biszku, a case that drew wide public and media attention, as demonstrated by the lengthy media watch reports published by the Committee of National Remembrance.37 Biszku had served as the Minister of Interior between 1957 and 1961, and played a key role in the reprisals against actors in the 1956 revolution. However, in a broadcast interview, he denied 37   “Nemzeti Emlékezet Bizottsága, Biszku-per, Nyomtatott sajtó,” neb.hu/asset/ phpE0dRyD.pdf, accessed August 22, 2021; “Nemzeti Emlékezet Bizottsága, Biszku-per, TV, rádió,” neb.hu/asset/phpfakG6Q.pdf, accessed August 22, 2021; “Nemzeti Emlékezet Bizottsága, Biszku-per, Honlapok,” 2016, neb.hu/asset/phpkdjBTI.pdf, accessed August 22, 2021.

266 

E. KIRS

responsibility for these actions. While the Constitutional Court had long ago clarified that individuals responsible for international crimes can be called to account, and that the statute of limitations did not apply to their cases,38 after the regime change, the Hungarian prosecution was reluctant to open investigations related to war crimes and crimes against humanity committed under the repressive regimes of the twentieth century. To encourage prosecution services to investigate such cases, the governing party submitted a proposal to Parliament to adopt a special law on ‘communist crimes’ (Act CCX of 2011). The governing parties, which composed a two-thirds majority in Parliament, quickly complied with the governmental proposal and adopted the special law, ignoring the criticism articulated by experts and scholars who voiced concern that the draft law included crimes which had not existed before, including at the time of the incidents to which they referred. This would result in the retroactive application of criminal law in unacceptable non-compliance with the principle of legality. The Act (known in public discourse as ‘Lex Biszku’) is composed of two major parts. Its first section repeats partially the text of the 1968 New York Convention on the non-applicability of the statute of limitations to war crimes and crimes against humanity,39 but the second section is of particular relevance to the present discussion, as it provides for the prosecution of certain crimes committed under the communist dictatorship. This section regulates criminal procedures in cases of ‘communist crimes,’ a criminal category that had never before existed. Under the Act, communist crimes include murder, physical assault, coercive interrogation, unlawful detention, treachery committed due to political reasons and on behalf of or with the consent of the state party, and crimes which had not been prosecuted for political reasons, such as the lack of state intention to call to account the perpetrators, who were acting on behalf of the communist state.40  Constitutional Court Dec. 53/1993 (X. 13.), Section V.  “Convention on non-applicability of statute of limitations to war crimes and crimes against humanity,” United Nations Treaty Collection, New York, November 26, 1968, treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-6&chapter=4&clang=_ en, accessed August 22, 2021. 40  Act CC of 2011 on the non-applicability of statute of limitations to and prosecution of crimes against humanity, and the prosecution of certain crimes committed in the communist dictatorship (2011. évi CC. törvény az emberiesség elleni bűncselekmények büntetendőségéről és elévülésének kizárásáról, valamint a kommunista diktatúrában elkövetett egyes bűncselekmények üldözéséről), December 31, 2011, Articles 3–7. 38 39

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

267

As a result of this act, Biszku, at the age of 93, was convicted of war crimes and the denial of communist crimes and sentenced to five and a half years imprisonment by the trial court in 2014. While the judgment was quashed on appeal in 2015, Biszku was retried that same year and again found guilty of war crimes and sentenced to two years imprisonment—a sentence that was suspended for three years by the trial court, and then made moot by Biszku’s death in 2016. The trials themselves have been broadly commented on and criticized by both practitioners and academics,41 and are not the focus of this current essay. What is of interest, however, is the legislation behind the trial, since it was only due to the powers given the Committee on National Memory, specifically through Act CCXLI, that allowed Biszku to be tried in the first place. With its second section, the Act created a new criminal category, namely ‘communist crimes,’ to retroactively address criminal acts committed decades before— and thus well beyond any formerly established statute of limitations. From a legal standpoint, this section was criticized as replicating a regulation that was found unconstitutional by the Hungarian Constitutional Court in the 1990s.42 In an exploration of memory laws, however, the creation of this new criminal category of communist crimes is significant. While it has not become the basis of mass prosecutions, the symbolism contained in this development cannot be ignored: it serves as a symbolic message about governmental priorities and narratives, pointing to the significance of criminal accountability for crimes by representatives of the communist regime.

41  For a detailed discussion on the case of Béla Biszku and critical commentaries, see Réka Varga, “Biszku-Case Reloaded: International Law Obligations and Lacuna in Compliance with Respect to Communist Crimes,” Hungarian Yearbook of International Law and European Law—2015 (Eleven International Publishing, 2016): 191–212. In 2016, the Academy of Sciences Institute for Legal Studies organized a public roundtable discussion about the case, where the remarks of Tamás Hoffmann, a Hungarian expert of International Criminal Law, reflected the wide public’s opinion: “In the Biszku-case, there is a clear political pressure, and it is sad that the courts have to constantly emphasize that they are taking a decision based on law.” “Közepesen jelentéktelen káder és ‘rossz zsaru’—mit kezdjünk Biszku Bélával?” Múlt-kor, March 17, 2016, mult-kor.hu/kozepesen-jelentektelen-kader-esrossz-­zsaru%2D%2D-mit-kezdjunk-biszku-belaval-20160317?pIdx=4, accessed August 22, 2021. 42  Tamás Hoffmann, “Trying Communism through International Criminal Law?—The Experiences of the Hungarian Historical Justice Trials,” The Hidden Histories of War Crimes Trials, eds. Kevin Heller and Gerry Simpson, (Oxford: Oxford UP, 2013) 246.

268 

E. KIRS

In addition to ‘Lex Biszku,’ the governmental messages related to the use of totalitarian symbols and the denial of genocide and crimes against humanity illustrate the government’s particular concern with communism, and its relegation of National Socialist crimes to the margins of Hungary’s complex history. I refer specifically to two cases that came before the courts, in which the men in question were accused of committing crimes in relation to the repressive regimes of the twentieth century. Specifically, they were accused of the “Public denial of crimes of National Socialist or communist systems” and the “Use of totalitarian symbols.”43 The first of these two laws was updated in 2012 to state that those who publicly deny, question, trivialize or strive for justifying the fact of genocide or other crimes against humanity committed by the National Socialist or communist regimes, shall be sentenced to up to three years of imprisonment; the second law was updated to confirm that any person who (a) disseminates, (b) uses in public or (c) exhibits a swastika, an SS-badge, an arrow-cross, a symbol of the sickle-and-hammer or a five-pointed red star, or a symbol depicting any of these designs as a means to breach the public peace, and specifically in such a way that offends the dignity of victims of totalitarian regimes, shall be sentenced to prison. The sole innovation in the new Criminal Code was that the sanction for the use of totalitarian symbols became more severe, namely confinement instead of the fine that had been imposable under the old Criminal Code. In both iterations of these laws, however, the wording of the two provisions does not differentiate between crimes committed under the National Socialist and the communist regimes. In two well-known cases, however, the government illustrates the ways in which it does make such a differentiation, thus adapting these memory laws to enforce its own political agenda. In the 2006 case of János Fratanoló, a member of the Hungarian Workers’ Party, a local Hungarian court convicted Fratanoló of using a communist totalitarian symbol, namely a five-pointed red star. Fratanoló had been wearing the symbol while participating in a demonstration two years earlier, during a celebration of Hungary’s accession to the European Union—a celebration that coincided with the observance of International Workers’ Day. As punishment, the court issued a reprimand, which was then vacated on appeal before the regional court, which acquitted Fratanoló, explaining that he had represented in fact no danger to

 In the old Criminal Code: Act IV of 1978, Art 269/B-C.

43

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

269

society.44 Notably, this acquittal was later reversed by the Appeals Court, which rejected the regional court’s judgment and upheld Fratanoló’s conviction on the grounds that he did indeed represent a danger to society, arguing that his behavior in and of itself consisted of a criminal offense, regardless of how the action was understood by the broader community.45 In 2007, a similar case was prosecuted, this time involving one Károly Fáber, who stood near a demonstration held by the Hungarian Socialist Party (MSZP) in Budapest that was protesting against racism and hatred. Some members of the right-wing political party, Jobbik, held a counter-­ demonstration in a nearby area. Fáber silently held an ‘Árpád-striped’ flag in the company of some other people. He was observed by the police since he stood close to both the MSZP event and the Jobbik counter-­ demonstration, at the steps leading to the Danube embankment. The location is symbolically significant, as it is the location where, in 1944–1945, Jewish victims were exterminated in large numbers. The ‘Árpád-striped’ flag, which is not generally prohibited under Hungarian law, is one of the historical flags of Hungary. However, it resembles to the flag of the Arrow Cross Party, a National Socialist organization that briefly held power in Hungary during World War II. Furthermore, it was increasingly used by a radical right-wing organization, the Hungarian Guard, which was subsequently banned. The police officers present at the events had been instructed not to tolerate the ‘Árpád-striped’ flag if it was displayed closer than 100 meters to the MSZP demonstration. When Fáber refused to follow police requests that he move, he was arrested, held in custody for six hours, and ultimately fined 50,000 Hungarian forints (approximately 155 USD) for disobeying police instructions. He appealed the fine in a court of law, constructing an argument based on his right to freedom of expression, but the court upheld his conviction, considering his conduct provocative, and arguing that his right to free expression could not be considered as reaching so far as to breach the public order.46 While the domestic decisions for these two cases were based on different domestic laws, when the cases came before the European Court of 44  The Regional Court made reference among others to a 2008 judgment of the ECtHR (Vajnai v. Hungary, 33629/06), in which it held that prosecution of wearing a red star amounted to a violation of that applicant’s freedom of expression enshrined in Article 10 of the European Convention on Human Rights. ECtHR, Fratanoló v. Hungary, 29459/10, March 8, 2012, 5–7. 45  Ibid., 8. 46  ECtHR, Fáber v. Hungary, 40721/08, July 24, 2012, 5–7.

270 

E. KIRS

Human Rights, the ECtHR faced a similar dilemma: the public display of totalitarian symbols as a form of expression had to be considered in relation to the protection of the rights of others, especially victims of totalitarian regimes. In both cases, the ECtHR gave priority to freedom of expression and found that the Hungarian courts were in violation of the European Convention. In the Fratanoló case, the Court held that for a restriction on the display of the red star to be justified, evidence had to be presented of a real and present danger that represented a political movement that sought to restore the communist dictatorship. The government had not shown the existence of such a threat, and the Court perceived a blanket ban on the use of the symbol as a potential risk that would lead to restricting the symbol’s use in contexts in which no restriction would be justified. In other words, it considered the ban too broad in view of the multiple meanings of the red star, and could find no satisfactory way to sever the different meanings of the incriminated symbol. Furthermore, the Court held that even if such distinctions had existed, uncertainties might have arisen entailing a chilling effect on freedom of expression and self-­ censorship. In any case, it reasoned, a symbol, which might have several meanings, displayed by a leader of a registered political party with no known totalitarian ambitions, could not be equated with dangerous propaganda. Fratanoló wore the red star as a member of a registered political party and at a lawful demonstration. Consequently, the display formed part of his political expression and as such enjoyed protection. The Court established that, for the interference to be justified, the government had to demonstrate that wearing the red star meant that Fratanoló identified exclusively with totalitarian ideas—proof that was even more important, given that the applicant exhibited the symbol at a lawfully organized, peaceful demonstration. The ECtHR concluded that the Hungarian Court of Appeal failed to analyze the impact of the display, namely whether the expression had resulted in intimidation. In the absence of any proportionality assessment, the ECtHR found that the government in the Strasbourg proceeding failed to prove that the restriction of freedom of expression corresponded to a “pressing social need” required under the principle of necessity.47 The ECtHR’s decision contrasts with the mission of the Orbán government, revealing its concern regarding freedom of expression and the heavy-handedness of Hungary’s courts, even in the face of historically fraught symbols.  ECtHR, Fratanoló v. Hungary, 29459/10, March 8, 2012, 25–27.

47

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

271

The ECtHR’s concern with freedom of expression led it to a substantively similar conclusion in the case of Károly Fáber. It recalled previous standards set by the Court, and the fact that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-­ fulfillment. Exceptions to freedom of expression, it concluded, must be narrowly interpreted and the necessity for any restrictions must be convincingly established. When the right to freedom of expression is exercised in the context of political speech through the use of symbols, utmost care must be observed in applying any restrictions, especially if the case involves symbols which have multiple meanings. It is only by a careful examination of the context that one can draw a meaningful distinction between shocking and offensive language, which is protected by Article 10 of the European Convention, and that which forfeits its right to be tolerated in a democratic society.48 Indeed, while the Court acknowledged the symbolism of holding aloft this flag at a site intimately connected with the mass extermination of Hungarian Jewry, it concluded that in and of itself, the flag did not disturb public order, nor was it capable of instilling violence. Given that the flag itself was not officially outlawed, it ruled that, while the ‘Árpád-striped’ flag could “create uneasiness,” such feelings in and of themselves were not a basis for limiting freedom of expression. The governing party’s response to the ECtHR rulings is noteworthy, as it openly and loudly reacted to the judgment delivered in the case of János Fratanoló and the use of the communist symbol, but had little to no complaint about the case of Károly Fáber. While this reaction can be explained in part due to the circumstances of the Fratanoló case, the party’s vehement opposition to the judgment and its official declaration of disagreement with the ECtHR’s conclusions suggest that more is at stake. The party argued that the Hungarian Court’s decision to uphold the relevant legal provision was in compliance with the need to defend democratic society, human dignity, and the “historical past of Hungary and its constitutional system.” In addition, it declared that in the future, if the ECtHR were to hold Hungary accountable for unjustified restriction of freedom of expression in cases of the use of totalitarian symbols, the compensation awarded to the victims should be paid from the state budget line that is

 ECtHR, Fáber v. Hungary, 40721/08, July 24, 2012, 34–36.

48

272 

E. KIRS

dedicated to the support of political parties.49 This legislative act demonstrates the proactive, even activist, stance of the governing parties if the dignity of the victims of communism is at stake. Furthermore, Member States of the Council of Europe rarely oppose the decisions and reasoning of the ECtHR, making this parliamentary resolution even more striking. The implications of the government’s strongly worded rejection of the ECtHR ruling also speak to the high priority that the prohibition of the use of communist symbols has for the Hungarian right. In contrast, the government’s muted response to the ECtHR’s decision in the Fáber case suggests that symbols associated with National Socialism are of less concern, as is the protection of the dignity of victims of National Socialism. Here again, the guiding principle is connected to the historical revisionism of the governing parties: proactive governmental action and support of research and open dialogue about the Hungarian past related to National Socialism counters the governing parties’ political interest in resisting any acknowledgment of the state’s responsibility for the Holocaust and for anti-Semitic measures carried out before World War II.

Concluding Remarks This paper aims to shed light on symbolic legislative acts in Hungary over the past ten years, under the current constitutional and political order, and to consider  the ways in which the governing parties, with a two-thirds majority in the Parliament, have politicized the role that the government has played in regulating history and in developing an official narrative. To this end, the government has placed primary emphasis on facing Hungary’s communist past, as opposed to its National Socialist past. Evidence of this particular focus is illustrated by Article U, a special provision in the 2011 Hungarian constitution that is dedicated to establishing a constitutional framework for the responsibility for crimes committed under communism. The government failed to include a similarly detailed provision in the Fundamental Law for crimes committed under the National Socialist regime—an omission that was similarly reflected in its attempt to establish 49  Parliamentary Resolution 58/2012 (VII. 10.) on the report about issues related to the execution of the judgment delivered by the European Court of Human Rights in the case Fratanoló v. Hungary (58/2012 (VII. 10.), OGY határozat az Emberi Jogok Európai Bíróságának a Fratanoló kontra Magyarország ügyben hozott ítélete végrehajtásával kapcsolatos kérdésekről szóló jelentés elfogadásáról.

10  COMMUNISM VERSUS NATIONAL SOCIALISM: LEGISLATION AS A TOOL… 

273

a truth commission. The ruling party’s establishment of the Committee of National Remembrance saw the creation of an institution whose mandate focuses solely on investigating the country’s communist past, with no similar institution or initiative created by the legislature to examine patterns of human rights abuses during the Holocaust. Indeed, the composition and operation of the Committee have raised additional concerns with regard to its independence in both the academy and civil society. Apart from the field of truth revelation, selective legislative action has resulted in a new category of crimes, ‘communist crimes,’ that violates the principles of legality and the prohibition on retroactivity. The legislative act that permitted this new category of crimes was openly rejected by the European Court of Human Rights, as articulated in its judgment regarding the use of the five-pointed red star as a totalitarian symbol—a ruling that was then itself rejected by the ruling parties in Hungary, as it failed to fit into its nationalistic historical vision of the past. These different measures, all recent parliamentary measures taken by the governing power, demonstrate the government’s intention to shape the Hungarian historical narrative, and in so doing to play the role of the protector of national unity against any kind of leftist ideology, which it sees as rooted in the crimes of the communist regime. Indeed, the ruling parties’ association of the contemporary left wing party with the country’s communist past, the belief that left wing parties not only share a leftist ideology but that they are a continuation of the communist party, explains the ruling party’s interest in and commitment to addressing communist crimes, while overlooking those committed during the Holocaust. The Orbán government sees itself fighting a heroic, unilateral battle for accountability and national unity, and thus it seeks to affirm a historical narrative that upholds its vision of the state and national identity rather than seeking to gain a multiperspectival understanding of the past.

CHAPTER 11

The Perils and Limits of Memory Laws: The Case of Israel’s “Nakba Law” (2011) Yifat Gutman

This chapter presents the case of the 2011 Israeli “Nakba Law,” which bans commemoration of the displacement of Palestinians during the 1948 War when Israel celebrates its independence. I use the Israeli case to conceptualize memory laws in general and to demonstrate how using legislation to block critical voices and minority memories from entering public debate radicalizes the inherent tension between nation-state memory and democratic law. In Israel, this is done by introducing an escalating degree of minority exclusion—from omission of minority memories and memorial days from the national calendar, to active banning and criminalization of minority commemoration. Using discourse analysis of the law and the public debates surrounding it from 2009 to 2017, I examine the legislative process that led to the “Nakba Law” within the wider politics of memory in Israel and domestic public debate. Specifically, I look at how the law was perceived in terms of contribution to democratic politics, asking whether it contributed to or damaged deliberative democracy. I examine the law as one legal technique

Y. Gutman (*) Department of Sociology and Anthropology, Ben-Gurion University of the Negev, Beer-Sheva, Israel © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_11

275

276 

Y. GUTMAN

that serves the larger political project of controlling public debate of the past, in order to uphold present interests, conflicts, and power relations. My findings regarding the “Nakba Law” reveal not only the capacity but also the limitation of state power to silence or control public debate of the past through legal means. First, and similar to other recent cases of memory laws, the “Nakba Law” is a disproportionate response to relatively marginal voices, which paradoxically distributed these voices widely instead of blocking and silencing them. This finding may not surprise scholars who view social memory not as a static construction, but as a site of ongoing struggle and contestation—albeit between unequal partners. Second, both legislators and opponents of the law claim that safeguarding democracy undergirds their opposing positions. Yet my assessment is that even before the law has been enforced or utilized for censorship, it carries significant damage to deliberative democracy. In addition to its chilling effect, which increases self-censorship among Palestinian citizens and far-left Jewish Israelis, the law’s active criminalization of minority commemoration is an escalating step away from democracy. Actively banning minority experiences not only from official commemoration, but also from the public arena, limits public expression, which goes against the principles of deliberative democracy. This break between memory and the law that memory laws cause is in itself alarming, and it is often accompanied by additional legislation, like “citizenship” laws that put ethno-­ national identity above the state’s commitment to civil rights1 and complementary memory laws like the “Jewish Nakba Law” (2014).2

Theoretical and Historical Background Although the legal field plays a central role in struggles of collective memory and history, it has been under-theorized in memory studies and in the sociology of culture and memory. Scholars of memory favor particular sites or acts of commemoration, such as memorials and museums,3 or ­analyze

1  Tamar Hostovsky Brandes, “Law, Citizenship and Social Solidarity: Israel’s ‘Loyalty-­ Citizenship’ Laws as a Test Case,” Politics, Groups, and Identities 6 (2018): 39–58. 2  Yifat Gutman and Noam Tirosh, “Balancing atrocities: Memory laws in Israel as a tool for domestic control and international legitimacy,” Law and Social Inquiry 46 (2021): 705–730. 3  Pierre Nora, Les Lieux de memoire, 1–7 (Paris: Gallimard, 1984–1992); Pierre Nora, “Between Memory and History,” Realms of Memory 1 (New York: Columbia UP, 1996): 1–20; Robin Wagner-Pacifici and Barry Schwartz, “The Vietnam Veterans Memorial: Commemorating a Difficult Past,” American Journal of Sociology 97.2 (1991): 376–420;

11  THE PERILS AND LIMITS OF MEMORY LAWS: THE CASE OF ISRAEL’S… 

277

the construction of narratives about the past.4 Law is central in shaping these sites, acts and narratives, and while it is often seen as fortifying state perceptions and interests, I view the process of legislation as a discursive arena in which contrasting perceptions of the past compete (albeit unequally) in an attempt to change people’s views about present problems.5 A variety of national laws addresses the historical record or the shared perception of the past; for example, hate speech laws, laws that establish the social calendar of memorial-days, and laws that create institutions that house the historical record and collective memory, such as national museums and archives.6 But the type of laws that this chapter refers to as “memory laws,” centers not on how the past will best be transmitted to the next generations, but on how to control public debate of the past in the present. The aim of these laws is to determine who will be included in shaping the collective view of the past and who will be excluded. In the last decade or so, such memory laws have been utilized in different countries with regard to difficult and violent histories. Memory laws are interesting because they go against significant domestic and international processes: they stand in opposition to truth-telling efforts in the international arena; and domestically, they are a legal technique that elected leaders utilize for a nondemocratic purpose: to exclude specific groups from the public sphere and to limit public debate on the national past, in contrast to the principles of free speech and deliberative democracy. Interestingly enough, memory laws are sometimes justified by legislators as protecting democracy from an antidemocratic threat. As part of a larger comparative project, I employ discourse analysis to examine the legislation process and public debate in Israel since 2009, Vera Zolberg, “Contested Remembrance: The Hiroshima Exhibit Controversy,” Theory and Society 27.4 (1998): 565–90. 4  Maurice Halbwachs, On Collective Memory (Chicago: University of Chicago Press, 1992). 5  Stiina Löytömäki, “The Law and Collective Memory of Colonialism: France and the Case of ‘Belated’ Transitional Justice,” International Journal of Transitional Justice 7 (2013): 205–23; Noam Tirosh and Amit Schejter, “‘I will perpetuate your memory through all generations’: Institutionalization of collective memory by law in Israel,” International Journal of Media and Cultural Politics 11.1 (2015): 21–35. 6  Tirosh and Schejter, “Institutionalization of collective memory by law in Israel”; Emanuela Fronza, “The Punishment of Negationism: The Difficult Dialogue between Law and Memory,” Vermont Law Review 30 (2006): 29; Joachim J. Savelsberg and Ryan D. King, American Memories: Atrocities and the Law, (New York: Russell Sage Foundation, 2011); Eviatar Zerubavel, Time Maps: Collective Memory and the Social Shape of the Past, (Chicago: University of Chicago Press, 2003).

278 

Y. GUTMAN

when an initial version of the Nakba Law was preliminarily approved, and analyze what characterizes memory laws and the contexts in which they have been used. The Israeli law is an amendment to the 1985 Budget Principles Law, which bans the commemoration of “Independence Day or the day of the establishment of the state as a day of mourning.” Although it is not stated in the law, those who mourn during Independence Day in Israel are the Palestinian citizens, approximately 20 percent of the population. When Israelis celebrate the 1948 War of Independence as a miraculous victory against all odds, and that cost many lives, Palestinians mark it as their national loss: the massive displacement and dispossession from their homes and lands, also known as Al-Nakba, the catastrophe in Arabic. This is also the reason why the law is popularly known in Israel as “The Nakba Law.” The Nakba Law sparked a heated public debate in Israel since its first version was approved in 2009 and until a second, less rigid version passed in the Israeli parliament (the Knesset), on March 22, 2011. During this period, the memory war on 1948 exploded into the center of the Jewish-­ Israeli-­dominated public debate, and the Nakba went from being a “public secret”7 to becoming widely known in Israeli society.8 The law was first proposed in 2008 by Knesset Member Alex Miller from the coalition’s far-right party Yisrael Beiteinu. Miller’s proposal carried a penalty of up to three years in prison (Draft Bill 458/18.). On May 24, 2009, the Ministerial Committee for Legislation and Law Enforcement approved the proposal in a preliminary reading, an act that provoked enraged responses in the media across the political spectrum, and an appeal by ministers from the Labor Party against the bill. The proposal was rejected, but a softer version of the law passed in 2011 that substituted incarceration with a financial penalty: to pull funding from state-supported institutions that either (1) “mark Independence Day or the day of the establishment of the State of Israel as a day of mourning” or that (2) “reject Israel’s existence as a Jewish and democratic state; among other expressions, contain incitement to racism, violence, or terrorism; support armed struggle and terrorism by enemy or terror organizations against 7  Ann Laura Stoler, Along the Archival Grain: Epistemic Anxieties and Colonial Common Sense (Princeton: Princeton UP, 2009). 8  Yifat Gutman, “Transcultural Memory in Conflict,” Parallax 17 (2011): 61–74; Amal Jamal and Samah Bsoul, The Palestinian Nakba in the Israeli Public Sphere: Formations of Denial and Responsibility (Nazareth, Israel: I’LAM-Media Center for Arab Palestinians in Israel [Hebrew], 2014).

11  THE PERILS AND LIMITS OF MEMORY LAWS: THE CASE OF ISRAEL’S… 

279

Israel; or support acts of vandalism or physical desecration that dishonor the Israeli flag or the symbol of the state”.9 The authority to impose fines is based on a ruling from the Ministry of Finance legal counsel and on expert opinions from the Ministry of Justice.10 Thirty-seven Knesset members voted in favor of the Nakba Law and 25 voted against, but half of the Knesset members (60 out of 120) avoided the decision by not showing up for the vote, including Prime Minister Benjamin Netanyahu. These absentees were criticized in an editorial in the liberal daily Haaretz and called upon to “wake up before it’s too late,” as their silence “encourages the instigators of racism.”11 The majority of Jewish Israelis supported the law: Only 27 percent of Jewish-Israelis supported public commemoration of the Nakba in 2011, compared with 82 percent of Palestinian citizens in 2010.12 From a legal perspective, the law provides semi-legal authority to political actors [the ministers of finance and justice] to evaluate the impact of certain expressions on the public sphere in general, as well as the power to enforce sanctions on speakers for expressions that are deemed legal according to common legal standards.13 Moreover, the penalty does not fit the “crime,” as the law states that public commemoration of the Nakba is not welcome whether it is funded by the state or not.14 Additionally, those in charge of judging the violations are economic experts who are not trained to fulfill this kind of duty. Adalah, the legal center for minority rights of Palestinian citizens, and the Association for Civil Rights in Israel (ACRI) appealed to the Supreme Court, arguing that the law is unconstitutional.15 But the court used an  Budget Principles Law—Amendment #40, 2011.  Ben Hartman, “‘Nakba law’ Passes Vote in Knesset Committee,” Jerusalem Post, March 15, 2011. 11  “Silence Over Nakba Laws Encourages Racism,” Haaretz, March 25, 2011. 12  Sammy Smooha, Still Playing by the Rules: Index of Arab-Jewish Relations in Israel 2012. (Jerusalem: The Israel Democracy Institute and University of Haifa Press [Hebrew], 2013). 13  David Ronen, “The Supreme Court’s censored freedom of speech,” Conditional Citizenship: On Citizenship, Equality and Offensive Legislation, eds. Yousef T. Jabareen and Sarah Ozacky-Lazar (Haifa, Israel: Haifa UP and Pardes Publishing House [Hebrew], 2016): 93–122. 14  Ibid. 15  HCJ 3429/11, delivered January 5, 2012. See “Adalah and ACRI: Israeli High Court Ignored the Chilling Effect Already Caused by the ‘Nakba Law’,” Adalah: The Legal Center for Arab Minority Rights in Israel, May 1, 2012, www.adalah.org/en/content/view/7188, accessed August 24, 2021. 9

10

280 

Y. GUTMAN

American legal doctrine to determine that it cannot yet judge the law, as “[t]he questions that this law raises will only become clear with its implementation.”16

The Paradox of Memory Laws Based on my research,17 the Nakba Law is less effective than other memory laws in blocking the airing of the contested past at issue, and paradoxically it even expands the dissemination of the  minority memories it is designed to repress. I will explain this finding through two of the general attributes of memory laws that may limit their impact in some cases. First, like other memory laws of its type, the Nakba Law attempted to block what has already been given publicity and visibility.18 It was introduced following a 20-year period of critical reexamination of the national past by Jewish-Israeli “new historians” and “critical sociologists,” artists and activists, as well as Palestinian intellectuals.19 These revisionist accounts exposed the false basis of many of the national myths, such as the David versus Goliath victory in the 1948 war, and revealed the extent of Palestinian displacement and in some cases, massacres committed by Israeli forces against Palestinian civilians.20 Second, the social circles that produced these critical recollections and revealed the Palestinian experience of 1948 to the Jewish majority were

 Ibid.  Yifat Gutman, “Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power?” Law and Society Review 50.3 (2016): 575–607. 18  Raffi Wartanian, “Memory Laws in France and their Implications: Institutionalizing Social Harmony,” Humanity in Action, November 2009; Nikolay Koposov, “Historical Memory Laws in Russia and Eastern Europe,” Speech delivered at the Liberté pour l’histoire General Assembly, Paris, France, May 21, 2005; Nikolay Koposov, “Does Russia need a memory law?” Democracy in Action, June 16, 2010; Nikolay Koposov, “‘The Armored Train of Memory’: The Politics of History in Post-Soviet Russia,” Perspectives on History: The newsmagazine of the American Historical Association, January 1, 2011. 19  Uri Ram, “The Future of the Past in Israel: A Sociology of Knowledge Approach,” Making Israel, ed. Benny Morris, (Ann Arbor, MI: University of Michigan Press, 2007): 202–30; Tom Hill, “Historicity and the Nakba commemorations of 1998,” European University Institute Working Papers No.2005/33 (Florence: Robert Schuman Centre for Advanced Studies, EUI, 2005). 20  Ram, “The Future of the Past in Israel”; Side by Side: Parallel Histories of Israel-Palestine, eds. Sami Adwan, Dan Bar-On, and Eyal Naveh (New York: New Press, 2012). 16 17

11  THE PERILS AND LIMITS OF MEMORY LAWS: THE CASE OF ISRAEL’S… 

281

small in number and marginal in impact.21 And so, similar to other cases, the bill was a disproportionate reaction by the state.22 Paradoxically, the legislators’ attempt to block critical voices helped disseminate them further in Israeli public discourse through media coverage of the legislation process and the heated public debate that surrounded it on mainstream news channels. “Seven years ago I didn’t know what the Nakba was; now it is in the newspaper, and not only the name; the paper writes what it is!” Nathan, a Jewish-Israeli activist told me in 2009. Nathan has participated in activist tours of Palestinian ruins conducted by an NGO called Zochrot (we remember in plural female form in Hebrew) since 2002 and, like the organization’s staff, was surprised to receive such counterintuitive assistance in spreading knowledge of the Nakba experience and memory from the government.23 Yet, this paradoxical and wide distribution of what the law was supposed to block took place without public acknowledgment of past wrongs or inclusion of minority memories in public debate.24

Democracy as Justification and in Practice During the committee’s vote, Knesset Member Miller called the legislation “an important proposal that was written in the spirit of the Israeli Declaration of Independence (Israel’s substitute of a constitution) and presents an important national answer to the varying threats that try to exploit the principles of our state’s democracy in order to fight against it and refute its foundations.”25 Arab-Palestinian MK Hanna Suweid from the opposition far-left Hadash Party asserted that the law would actually damage Israel’s democracy by limiting freedom of expression and placing collective blame on Palestinian citizens: “Commemorating the Nakba does not mean that I deny the existence of the State of Israel,” he said, “I say this as someone who for some years commemorates the Nakba. I am not the happiest person on this day, but to go from this to the criminal accusation that I want to deny the existence and independence of the State of

21  Yifat Gutman, Memory Activism: Reimagining the Past for the Future in Israel-Palestine (Nashville, TN: Vanderbilt UP, 2017); Uri Ram, “Postnationalist Pasts: The Case of Israel,” Social Science History 22 (1998): 513–45. 22  Wartanian, “Memory Laws in France and their Implications.” 23  Gutman, Memory Activism. 24  Ibid. 25  Hartman, Jerusalem Post, March 15, 2011, my emphasis.

282 

Y. GUTMAN

Israel as a Jewish and democratic state is an imposition of guilt, collective guilt without any proof.”26 Both Miller and Suweid judge the law in relation to Israel’s democratic character, but each emphasizes a different, even contradictory, aspect of it. For Suweid, Israel’s democracy should enable Nakba commemoration for Palestinian citizens, while for Miller, Israel’s democratic character is exploited to pose threats to its ethno-national Jewish character in the shape of Nakba commemoration by Palestinian nationals. They disagree on whose memory should be protected by law: majority or minority memory? Knesset Member Isaac Herzog (Labor) noted in his criticism that the law “highlights a subject that’s less and less common in the Arab public and gives it greater importance.”27 Various intellectuals and prominent public figures, including laureates of the prestigious national award, the Israel Prize, petitioned against the Nakba Law, and responses by left-wing and Palestinian politicians in Israel (as well as some center-right Knesset members) condemning the law filled the newspapers. Most of these responses called the amendment antidemocratic, harmful to free speech, and one that silences the history of Palestinian citizens. One op-ed, titled “The Palestinian Narrative Has Won,” written by Haaretz contributor Oudeh Basharat, a Palestinian citizen, stated that the law at least recognized that the Nakba exists and expressed the hope that it would spark a discussion on what really happened to Palestinians in 1948. This Palestinian journalist’s wish that the Nakba enter Jewish-majority-dominated public debate after decades of silence testifies to the extent to which silencing has taken place until the Nakba Law was introduced. As the next section elaborates, the consequences of the law for Palestinian citizens and for Israeli democracy in practice were not as optimistic as the writer had hoped.

Breaking Democracy As aforementioned, none of the law’s versions includes the words “Nakba,” or “Palestinian citizens,” but referring to acts of mourning on Independence Day in Israel points directly to a post-1948 tradition for Palestinian citizens, who visit their destroyed village lands on the national holiday. Historically, when they were living under Martial Law (1948–1966),  Ibid.  Ibid.

26 27

11  THE PERILS AND LIMITS OF MEMORY LAWS: THE CASE OF ISRAEL’S… 

283

Independence Day was the only time Palestinians were allowed to move freely throughout the country and therefore they could visit their lands, linking this tradition to this date.28 In recent decades, however, Nakba Day is collectively marked on May 15, which does not usually coincide with Independence Day. Perhaps this should not come as a surprise: Nakba Day is not the only Palestinian memorial day that is excluded from Israel’s social calendar, which marks the Jewish majority’s culture and history. Other dates of national significance to Palestinian citizens are left out: Land Day (1976), and the October 2000 events (in which 13 Palestinian protesters were killed by Israeli police) are also omitted from the state calendar. This omission reflects an inherent tension between nation-state memory that usually represents the majority and democratic law that is meant to uphold equal rights for all citizens.29 In general, the nature of collective or social memory is selective and remembering always includes forgetting.30 Memory laws in Israel and other countries are a further step of exclusion constructed by groups in power, in reaction to an atmosphere of public contestations from the margins. As the critical and revisionist view of Israeli national history began to spread among the country’s intellectual and artistic circles in the 1990s and first half of the 2000s, the Nakba Law was a new step in fortifying the official Zionist narrative of the past against the counter memory of Palestinian displacement. This was not deemed necessary before, when this memory was simply ignored through exclusion from the official calendar of memorial days. I argue that memory laws radicalize this inherent tension and create a chasm between national memory and the law; this break is caused by moving from favoring majority memories in the national calendar, to active banning and criminalization of minority commemoration, conflicting with 28  Efrat Ben-Ze’ev, “The Politics of Taste and Smell: Palestinian Rites of Return,” The Politics of Food, eds. Marianne Lien and Brigitte Nerlich (Oxford: Berg Publishers, 2004): 141–160; Nur Masalha, ed., Catastrophe Remembered: Palestine, Israel and the Internal Refugees: Essays in memory of Edward W. Said (1935–2003) (London: Zed Books, 2005); Chanan Cohen, “Israeli Public Opinion on Reducing Funding to Organizations that Mark Independence Day as the ‘Nakba’,” Israel Democracy Institute, May 7, 2014, en.idi.org.il/ articles/6466, accessed August 24, 2021. 29  Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (London: Verso, 1991). 30  Nora, Les Lieux de memoire; Nora, “Between Memory and History”; Eric Davis, Memories of State: Politics, History, and Collective Identity in Modern Iraq, (Berkeley: California UP, 2005).

284 

Y. GUTMAN

the democratic principle of free speech. Recent developments in the Nakba Law demonstrate the antidemocratic potential of memory laws in democracies, as the next section elaborates.

The Peril and Limits of the Nakba Law The Nakba Law has not yet been enforced but is likely to have created a chilling effect, as the appeal to the High Court against the law claims. The appeal was rejected. In the years immediately following the law’s inception, Nakba Day memorial ceremonies (on May 15) have grown in and around Israeli universities, as have right-wing protests against them. A bill that proposed to sanction universities that allow Nakba commemoration—even though universities are already included in the Nakba Law— was dismissed in its  early stages. At the same time, a bill for a national memorial day for the Nakba was proposed in July 2015 by Palestinian Knesset Members Ahmad Tibi and Osama Sa’adi, in response to the Nakba Law, but was removed in the early stages as well (Bill no. 1865/20/F). Two particularly interesting efforts were taken in recent years to complement or amplify the Nakba Law. Both testify to its limits, but also raise additional perils regarding the use of memory laws for the purpose of banning a particular group from public debate. The most interesting is the legislation of another memory law that has been popularly termed the “Jewish Nakba Law,” which complements the Nakba Law. Approved on June 23, 2014, the law introduces a new memorial day on November 30 to mark the “Exit and Deportation of Jews from Arab Lands and Iran.” The law names three ministries: the Ministry of Senior Citizens, which has since changed its name to the Ministry of Social Equality, and is in charge of organizing the main ceremony that opens the commemoration events; the Ministry of Education, which is responsible for educational activities related to the day; and the Ministry of Foreign Affairs (MFA), which is supposed to hold events, including at embassies abroad, for the “increase of international consciousness of the Jewish refugees from Arab lands and Iran and of their right to compensation.”31 The Knesset will also hold a special discussion to mark the day. The law was 31  For the language of the MFA Press Release, see “Final approval: The Exit and Deportation of Jews from Arab Lands and Iran Day,” Knesset News, June 24, 2014, main. knesset.gov.il/en/News/PressReleases/Pages/Pr11325_pg.aspx, accessed August 24, 2021.

11  THE PERILS AND LIMITS OF MEMORY LAWS: THE CASE OF ISRAEL’S… 

285

proposed by right-wing Knesset Members Shimon Ohayon (Yisrael Beiteinu) and Nissim Zeev (Shas). At first glance, this new law seems unrelated to the Nakba Law, since it concerns the experiences and memories of a different population: Mizrahi Jews, that is, Jews who immigrated to Israel (primarily in the 1950s) from Arab countries and were expected to assimilate into the Ashkenazi identity and culture that underlies Zionism (Ashkenazi Jews are of European and Anglo-Saxon origin). The law was framed as a correction to the historical injustice of excluding Mizrahi cultures and experiences from Israel’s official memory and popular culture, which is mostly Ashkenazi. Yet its main goal is in fact to complement the Nakba Law in blocking Palestinian claims: it pits the memory and redress claims of Mizrahi Jews for their dispossession and displacement by Arab governments in the 1950s against the memory and claims of Palestinians’ dispossession and displacement by Israeli military forces and the Jewish state in 1948. Publicizing the commemoration of Mizrahi experience and memory is meant to hinder the commemoration of Palestinians, and to even out their claims so as to delegitimize Palestinian claims. While the Nakba Law is directed at blocking Palestinian memories and claims in the domestic public debate, the “Jewish Nakba Law” is meant to increase Israel’s legitimacy in the international arena.32 The law was framed as a long-overdue step in an ongoing effort, primarily since the 1990s, to bring the long-excluded Mizrahi experience, memory, and culture to mainstream Israeli institutions. The first commemoration ceremony in November 2014 was held at the Presidential Residence and organized by then Minister for Senior Citizens Uri Auerbach. The newspaper Yedioth Ahronoth reported that the date chosen for the new annual commemoration—one day after the historical November 29, 1948 UN approval of the Partition Plan of Palestine (dividing the area into two national territories, one Jewish, one Arab, which led to the Declaration of the State of Israel)—is significant since it marked the beginning of the oppression of Jewish citizens in Arab countries. Tying the dispossession and displacement of Mizrahi Jews to Israel’s formation as an independent state, rather than viewing their contribution as one that begins at the time of immigration in the 1950s, casts them as active participants in Israel’s founding moment through public acknowledgment of their sacrifice for state independence. It also brings them to a  Gutman and Tirosh, “Balancing atrocities.”

32

286 

Y. GUTMAN

slightly more equal ground with Ashkenazi-centered leadership and institutions of pre-state settlement and the 1948 War of Independence. In the 2015 ceremony, Minister for Social Equality Gila Gamliel emphasized the law’s historical bridging of the gap in knowledge on the history and heritage of Mizrahi Jews that will finally be disseminated to schoolchildren through the education system.33 There is no doubt that Jews from Arab countries and Iran should be included and redressed for their unequal treatment in Israel, as well as in Arab countries. Yet what is hidden in the law’s appearance as the happy end of an internal dispute is in fact a foreign policy endeavor to increase Israel’s diminishing legitimacy in the international arena.34 The law is part of a larger, semi-secret national security project to document and assess the dispossession and other damages Mizrahi Jews suffered from Arab governments as a response to the success of Zionism. The project has two arms: a secret operation by the National Security Headquarters, led by retired IDF General Uzi Arad since 2007; and public memory programs in the last decades that encourage Mizrahi Jews to share their life stories, focusing on life in Arab countries and Iran, creating platforms for collecting and archiving these stories. The public platforms have changed hands and names, but have been located primarily in the Office of Retired Citizens/Ministry of Social Equality. In both public and secret operations, the MFA has been a central actor in the effort to document dispossession and draw attention to Jewish refugees in the international arena. Even before the law was proposed, in a 2013 article in the weekend supplement of the national paper Yedioth Ahronoth, General Arad explicitly stated that the project is meant first and foremost to counter the claims of Palestinian refugees against Israel:35 “Our goal was to create a situation of complete equation. When peace talks on a permanent settlement will renew, Israel would state the [Jewish claims] issue through linking it to the [Palestinian] refugees issue on each of its dimensions. One refugee’s law is another refugee’s law. For each dollar for the Palestinians, a similar dollar will be given to the Jewish refugees. All based on a symmetrical and simultaneous basis. Half goes to Jews and half to the Arabs, without preference

 Yedioth Ahronoth, December 1, 2015.  Gutman and Tirosh, “Balancing atrocities.” 35  Ronen Bergman, “This Was my Home,” Yedioth Ahronoth Weekend Supplement, July 12, 2013. 33 34

11  THE PERILS AND LIMITS OF MEMORY LAWS: THE CASE OF ISRAEL’S… 

287

to any side.”36 He went on to claim that Israel has invested a huge amount of money in integrating the Jews from Arab countries and will deduct this amount from any sum that will be passed to the Palestinians. In the same article, organizations that represent Mizrahi Jews in Israel portrayed their prolonged disappointment with the state’s failure to advance their claims for redress from Arab leaders.37 “I am unwilling to hear the word deduction ever again,” said Levana Zamir, head of the organization of Egyptian Jews in Israel. She continued to state that since the Labor government in 1950, “[…] every Israeli government wants to deduct the value of my father’s property from that of some Arab from Jaffa or Ramle. I hereby declare that we will not be part of this thing. […] there is a limit to our abuse […]. Khalass (enough in Arabic), it’s over.”38 Indeed, the state of Israel did not deal with individual redress claims of Jews against Arab governments until 2014, when the issue became a national, foreign policy matter. Even when the opportunity presented itself—in the face of the confiscation of Iraqi-Jewish possession in the 1950s, or later, in the 1979 peace treaty with Egypt, for example—redress claims were framed by the state as a strategic asset that should be saved for future occasions.39 Foreign Minister Moshe Sharet, which Zamir mentioned, had addressed the confiscation of property from Iraqi Jews for the first time in September 1949, in response to a call to assist these Jews in their time of crisis. He framed the issue as a foreign policy matter that needs to be reserved for a future peace agreement with Iraq.40 Rejecting a proposal to deduct Iraqi Jewish property from Palestinian possessions left after their displacement, Shenhav argued that Sharet only drew a weak link between the Jewish property confiscated by Arab governments and Palestinian property.41 The link between Jewish and Palestinian dispossession developed only later into “an ideological thesis and official practice of the Israeli government.”42 In 2014, it became the official discourse.

 Ibid.  Ibid. 38  Ibid. 39  Yehouda Shenhav, “The Jews of Iraq, Zionist Ideology, and the Property of the Palestinian Refugees of 1948: An Anomaly of National Accounting,” International Journal of Middle East Studies, 31.4 (Nov. 1999): 605–30. 40  Ibid., 612–13. 41  Ibid. 42  Ibid., 613. 36 37

288 

Y. GUTMAN

Internationally, the issue of Jewish refugees from Arab countries has received attention only recently, primarily as a result of active efforts by Israel and organizations like the World Organization of Jews from Arab Countries (WOJAC) and Justice to Jews from Arab Countries (JJAC).43 The World Jewish Congress has organized conferences with the explicit aim of comparing Jewish and Palestinian refugees, sometimes narrating the suffering of the former in relation to the Holocaust and European Jews in the 1940s.44 The term “Jewish Nakba” does not appear in the 2014 law, but is used by its supporters, primarily far-right columnists and state officials like former Ambassador and Mizrachi organizer Zvi Gabai, who published op-ed pieces annually on or around the new Memorial Day. Gabai was born in Iraq and has retired from the MFA—a central actor in the Memorial Day Law initiative. Gabai may have coined the term “the Jewish Nakba” in a 2012 op-ed piece that he published in Haaretz and that he used in consequent op-eds in 2014–2017 on or around November 30, the new memorial day. In his op-eds, Gabai explained that it is unreasonable to address the tragedy of the Palestinian refugees while neglecting the loss suffered by Jewish refugees. Gabai used the term “Jewish refugees” in order to equate and offset the association of refugees solely with Palestinians. Arad provided the context for this action in 2013: “We found out that in the worldwide discourse, when refugees and redress are discussed, they [i.e. the Palestinians] managed to take over the whole issue in consciousness-­ raising. In our occupation with the topic I wanted to do justice with the Jewish refugees as well.”45 In an op-ed published on a different occasion, that was on Nakba Day in 2015, entitled, “And What About Our Nakba?” Gabai addresses the comparison of Jewish and Palestinian refugees. He conflates the domestic exclusion of Mizrahi Jews with the international struggle for legitimacy in the same paragraph: “What are Israelis who migrated from Arab countries supposed to tell their children about their history? Neglecting the history of Jews of Arab countries and ignoring their heritage made their tragedy blurred and under-represented in the world. Unlike them, the Palestinians have successfully presented their narrative and gained international sympathy.” Moreover, he provides 43  Howard Adelman and Elazar Barkan, No Return, No Refuge: Rites and Rights in Minority Repatriation (New York: Columbia UP, 2011) 185. 44  Ibid. 45  Bergman, “This Was my Home.”

11  THE PERILS AND LIMITS OF MEMORY LAWS: THE CASE OF ISRAEL’S… 

289

­ emographic data as evidence that Jews have been ethnically cleansed— d which is how Palestinians describe the Nakba. Yet he assigns the term “history” to the Jewish refugees and “narrative” to the Palestinian refugees to separate what he views as fact-based history from discursive claims regarding past events. The comparison of Jewish and Palestinian suffering continues by portraying Jewish refugees as worse off than Palestinian refugees. He concludes by attributing the blame for the oppression of Jewish citizens in Arab countries directly to the–still today stateless—Palestinians: “Israel needs international recognition of the huge human tragedy that Arab-­Palestinians, actively assisted by the Arab countries, have caused.” Another effort to amplify the ability of the Nakba Law to control public debate was an attempt to use it for censorship. It was carried out in 2017 by Minister of Culture Miri Regev (Likud) in collaboration with Finance Minister Moshe Kahlon (Kulanu). Regev had previously threatened to cut the funding of cultural organizations that refused to perform in theaters in the Occupied Palestinian Territories (OPT) and of Arab-Jewish theaters in Jaffa and Haifa whose repertoires included left-wing content or Palestinian playwrights. On August 13, 2017, Regev met with Kahlon and the government’s legal counsel to set up a mechanism within the Ministry of Finance that could streamline complaints about violations of the Nakba Law. In September of that year, Regev went on to demand that the authority to determine which cultural endeavors violate the Nakba Law would be granted to her ministry so she could directly sanction cultural institutions that her office currently supports. The effort to grant the minister of culture the power to directly sanction critical artistic projects and institutions could have had a detrimental effect on Israel’s democracy and freedom of speech. It also demonstrates that memory laws are only one tool in the exclusion of critical and minority memories in national history and identity. If the use of law for state intervention in public debate continues, the break between state memory and democratic law will be complete.

CHAPTER 12

Memory Law and the Duty to Remember the “1994 Genocide Against the Tutsi” in Rwanda Erin Jessee and David Mwambari

Introduction On 17 February 2020, Rwandans around the world were shocked to learn of the death of internationally renowned gospel singer Kizito Mihigo, allegedly by suicide, while in police custody in Rwanda.1 For many, Mihigo was an iconic figure whose early life and accomplishments made him an ideal role model for the “New Rwanda” they strived to realize, following

1  “Kizito Mihigo: The Rwandan gospel singer who died in a police cell,” BBC World News, February 29, 2020, www.bbc.co.uk/news/world-africa-51667168, accessed August 20, 2021.

E. Jessee (*) University of Glasgow, Glasgow, UK D. Mwambari King’s College London, London, UK © The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3_12

291

292 

E. JESSEE AND D. MWAMBARI

the genocide that overwhelmed the nation from April to July 1994.2 During this period, Hutu Power extremists—radicalized by a three-year civil war that had been triggered when the predominantly Tutsi Rwandan Patriotic Front (RPF) invaded northern Rwanda on 1 October 1990— murdered an estimated 500,000–1 million civilians, most of whom were members of the nation’s Tutsi minority, but also political moderates.3 As a genocide survivor,  Mihigo’s early music, in particular, reinforced the Rwandan government’s efforts to establish an official narrative of the 1994 genocide that promoted recognition of the atrocities as genocide as defined in international law (UN Genocide Convention 1948), and promoted national unity and reconciliation. However, following a promising early career based on composing songs that were celebrated nationally for promoting forgiveness, social repair, and reconciliation in accordance with the official narrative that was taking shape, in 2014 Mihigo began producing music that called for more inclusive forms of commemoration that recognized the various forms of 2  David Mwambari, “Music and the politics of the past: Kizito Mihigo and music in the commemoration of the genocide against the Tutsi in Rwanda,” Memory Studies 13.6 (2020): 1322. For a historically rigorous overview of the 1994 Rwandan genocide grounded in intensive qualitative research across the country, see the work of historian Alison Des Forges, Leave none to tell the story: Genocide in Rwanda (New York: Human Rights Watch, 1999). 3  Alison Des Forges, Leave none to tell the story; André Guichaoua, From war to genocide: Criminal politics in Rwanda, 1990–1994 (Madison, WI: Wisconsin UP, 2015). For more regarding the debate that surrounds the number of Tutsi who were disappeared and/or murdered during the 1994 genocide in Rwanda, see the work of international relations scholar Jens Meierhenrich, who provides an overview of academic estimates since the genocide—ranging from 500,000 to 800,000 Rwandan civilians—in comparison with the over one million Tutsi victims currently recognized by the Rwandan government. Jens Meierhenrich, “How many victims were there in the Rwandan genocide? A statistical debate,” Journal of Genocide Research 22.1 (2020): 72–82. See also National Commission for the Fight Against Genocide (CNLG) (2020) for background of the Genocide against the Tutsi, https://cnlg.gov.rw/index.php?id=80. Additionally, in the years immediately preceding the civil war, many Rwandans were also struggling to resist divisions associated with a period of serious economic decline, growing dissatisfaction with Hutu President Juvénal Habyarimana’s regional favoritism and corruption, and related stressors, though the emergence of the Hutu Power movement is explicitly associated with the period immediately following the start of the civil war. (See Lee Ann Fujii, Killing neighbors: Webs of violence in Rwanda (Ithaca: Cornell University Press, 2009); Jean Paul Kimonyo, Rwanda’s Popular Genocide: A Perfect Storm (London: Lynne Rienner Publishers, 2016); Omar McDoom, “Rwanda’s ordinary killers: Interpreting popular participation in the Rwandan genocide,” Crisis States Programme, December 2005, http://eprints.lse.ac.uk/28153/1/wp77.pdf, accessed August 20, 2021.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

293

conflict endured by all Rwandans in the 1990s—not just “the 1994 genocide against the Tutsi,” as it was officially labelled in Rwanda after 2007. This provocation resulted in immediate official backlash, whereby Mihigo was arrested, charged, and subsequently pleaded guilty—allegedly under torture—to aiding terrorist groups in their efforts to destabilize Rwanda. He was sentenced to ten years in prison and his music banned. While he was pardoned for his alleged crimes in 2018, in 2020 Mihigo was caught by the Rwanda Investigation Bureau (RIB) trying to flee to Burundi, in violation of the terms of his release. It was three days following this second arrest that Mihigo was found dead. Mihigo’s unfortunate fate was made possible by the particular evolution of Rwandan “memory laws,” by which we mean the institutions, policies, and practices through which the Rwandan government documents, preserves, and disseminates some Rwandans’—and particularly Tutsi genocide survivors’—memories of the genocide. These memory laws are part of a comprehensive transitional justice program established by the Rwandan government following the 1994 genocide that also pursues “universal jurisdiction” for genocide-related crimes, and encourages participation in the annual national genocide commemorations, known as Kwibuka (“to remember”), among other government-led reconciliation initiatives, with the laudable goal of promoting national unity and reconciliation and educating Rwandans to resist ethnic and political bloodshed in future.4 However, these memory laws have become increasingly ­politicized over the years, simultaneously obscuring or silencing Rwandans 4  For more on Rwanda’s broader transitional justice program, see the work of theologist Richard Benda, “Promising generations: from intergenerational guilt to Ndi Umunyarwanda,” Rwanda Since 1994: Stories of Change, eds. Hannah Grayson and Nicki Hitchcott (Liverpool: Liverpool UP, 2019): 189–210, anthropologists Kristin Doughty, Remediation in Rwanda: grassroots legal forums (Philadelphia: University of Pennsylvania Press, 2016) and Laura Eramian, Peaceful Selves: Personhood, Nationhood, and the Post-Conflict Moment in Rwanda (New York: Berghahn Books, 2018); former Prosecutor General of Rwanda Gerald Gahima, Transitional Justice in Rwanda: Accountability for Atrocity (London: Routledge, 2013); conflict studies scholar Andrea Purdeková, Making Ubumwe: Power, State, and Camps in Rwanda’s Unity-building Project (New York: Berghahn Books, 2015) and “Building a Nation in Rwanda? De-ethnicisation and its Discontents,” Studies in Ethnicity and Nationalism 8.3 (2008): 502–523; development studies expert Molly Sundberg, Training for Model Citizenship: An Ethnography of Civic Education and State-Making in Rwanda (Cham: Springer, 2016); political scientist Susan Thomson, Whispering truth to power: Everyday resistance to reconciliation in postgenocide Rwanda (Madison, WI: Wisconsin UP, 2013); and the edited volume by political scientists Scott Straus and Lars Waldorf, Remaking Rwanda: State building and human rights after mass violence, eds. Scott Straus and Lars Waldorf (Madison, WI: Wisconsin UP, 2011), among others.

294 

E. JESSEE AND D. MWAMBARI

whose experiences do not uphold the preferred official narrative with threats of official harassment and prosecutions, contributing to a broader atmosphere of “precarious peace.”5 This chapter identifies and analyzes three phases in the evolution of Rwanda’s memory laws including: the 1994–2000 creation of Rwanda’s first memory institutions under President Pasteur Bizimungu; the 2000–2010 creation of an official narrative in Rwanda under President Paul Kagame (r. 2000–present); and the internationalization of “the 1994 genocide against the Tutsi” (2010–present). To illustrate the potential benefits and limitations associated with adopting the politicized understanding of Rwanda’s past and present that has been institutionalized through post-genocide Rwanda’s evolving memory laws, we consider Mihigo’s rise and fall as an artist who attempted to challenge the Rwandan government’s hegemonic official history related to the genocide. However, to further complicate the impact of Rwanda’s evolving memory laws, we also highlight the challenges considered by Victoire Ingabire, a well-­ known politician of mixed ethnic heritage who in 2010 launched a new political party that challenged the RPF’s legitimacy as the dominant political party in Rwanda. Our analysis throughout is informed by what Holocaust scholar Michael Rothberg refers to as “multidirectional memory”—memories that are “subject to ongoing negotiations, cross-­ referencing, and borrowing; as productive and not privative.”6 While we focus on Rwanda in this chapter, our findings have relevance for other genocide-affected contexts beyond Rwanda.

Establishing Rwanda’s First Memory Institutions: 1994–2000 In response to start of the civil war in 1990, the international community worked to negotiate and enforce a peace agreement between the forces of Hutu President Juvénal Habyarimana (r. 1973–1994) and the RPF.7 5  Susan Thomson, Rwanda: From Genocide to Precarious Peace (New Haven: Yale University Press, 2018) 13–14. 6  Michael Rothberg, Multidirectional Memory: Remembering the Holocaust in the Age of Decolonization (Stanford, CA: Stanford UP, 2009) 3. 7  David Mwambari, Barney Walsh, and ’Funmi Olonisakin, “Women’s overlooked contribution to Rwanda’s state-building conversations,” Conflict, Security & Development 21.4 (2021): 475–499. See also,  Wouter Reggers, Valérie Rosoux, and David Mwambari,  “In Memory of Peacekeepers: Belgian Blue Helmets and Belgian Politics.” International Peacekeeping (2022): 1–24.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

295

However, Habyarimana’s assassination on 7 April 1994 by unknown parties brought a sudden end to this process.8 A cohort of Hutu Power extremists affiliated with the nation’s Hutu majority began exterminating political moderates based in the nation’s capital, Kigali, to ensure the Hutu Power extremists’ domination of the interim government. The following day, this same cohort began inciting their followers to commit genocide against the nation’s Tutsi minority, whom they claimed was responsible for Habyarimana’s assassination, in all areas of Rwanda that were under their control. In doing so, they built upon a well-worn pattern of inciting anti-Tutsi sentiments and violence during periods of political turmoil that dated back to the period surrounding Rwandan independence in 1962.9 The resulting genocide continued until the RPF formally defeated the Hutu Power extremists on 18 July 1994.10 Immediately following the genocide, Bizimungu was made President of the new transitional government. A Hutu who had worked in Habyarimana’s government until 1990, when his brother’s murder— allegedly by Habyarimana’s inner circle—prompted him to join the RPF, Bizimungu’s government initially focused on restoring the nation’s obliterated infrastructure, only organizing burials where deceased victims’ bodies had been left exposed to address serious public health concerns.11 This approach allowed individual religious leaders and survivors to take the lead in  locating and identifying the genocide’s often anonymous 8  There is substantial debate regarding which party to the conflict was responsible for Habyarimana’s assassination. Most notably, the current government of Rwanda maintains that a cohort of Hutu Power extremists close to Habyarimana’s wife, Agathe Kanziga, were responsible for his death (Erin Jessee, Negotiating genocide in Rwanda: The politics of history (Cham: Palgrave Macmillan, 2017) 50; also see “Report of the investigation into the causes and circumstances of and responsibility for the attack of 06/04/1994 against the Falcon 50 Rwandan Presidential Aeroplane, registration number 9XR-NN,” Republic of Rwanda Independent Committee of Experts, https://www.files.ethz.ch/isn/125423/1036_ FalconReport.pdf, accessed August 21, 2021, though experts familiar with the legal investigations conducted by the International Criminal Tribunal for Rwanda (ICTR), among other international investigations, have concluded Habyarimana’s death was more likely orchestrated by the RPF (Guichaoua, From war to genocide, 144–145; Marc Trédivic and Nathalie Poux, “Rapport d’expertise: destruction en vol du Falcon 50,” (Paris, 2012), ddata.over-­ blog.com/xxxyyy/2/93/44/38/rapport-ballist-attentat-contre-habyarimana-­6-4-19-­ copie-1.pdf. 9  See, for example, Alison Des Forges, “The ideology of genocide,” Issue: A Journal of Opinion 23.2 (1995): 44–47. 10  Des Forges, Leave none to tell the story; Guichaoua, from war to genocide. 11  Kimonyo, Rwanda’s Popular Genocide, 4.

296 

E. JESSEE AND D. MWAMBARI

victims, and holding masses and related commemorative activities within communities so that people could mourn their murdered and missing loved ones.12 In instances where survivors had strong government or non-­ governmental organization (NGO) connections, the resulting ceremonies sometimes received official support, but even these sanctioned commemorative activities took place without official policies in place to determine their form.13 These early initiatives were often controversial. For example, historians Catharine Newbury and David Newbury documented the efforts of then-Minister of Justice, Alphonse-Marie Nkubito—a Hutu political moderate who had a history of resisting Habyarimana and the Hutu Power movement—to organize a public mass in Kigali to commemorate Rwandans who died during the genocide, regardless of ethnicity. A dedicated human rights defender, Nkubito’s initiative was a direct response to the Bizimungu government’s plans to hold a national victory celebration on 1 October 1994 to mark the RPF’s 1990 invasion of Rwanda, which Nkubito argued was inappropriate.14 Nkubito was subsequently dismissed from his post during a ministerial reshuffle in August 1995, but the mass he organized—while poorly attended—was a first attempt toward finding respectful ways for Rwandans to remember their missing and murdered loved ones.15 Perhaps in response to Nkubito’s efforts, in late 1994 the Bizimungu government declared 1995 the “year of tolerance.”16 At this point, the government—working with genocide survivors, and particularly those associated with a new organization, Ibuka (“remember”)—embraced the idea of commemorating the 1994 genocide in accordance with the United Nations (UN) Convention on the Prevention and Punishment of the

12  Darius Gishoma, Crises traumatiques collectives d’ihahamuka lors des commémorations du génocide des Tutsi: Aspects cliniques et perspectives thérapeutiques, Unpublished PhD, Université de Louvain (2014) 13. 13  Rémi Korman, “Le Rwanda face à ses morts ou les cimetières du genocide,” Génocides et Politiques Mémorielles, ed. F.  Blum, 1–4 (Paris: Centres d’histoires sociales du XXe siècle, 2011); Rachel Ibreck, “The politics of mourning: Survivor contributions to memorials in post-genocide Rwanda,” Memory Studies 3.4 (2010): 330–343. 14  Catherine Newbury and David Newbury, “A Catholic Mass in Kigali: Contested Views of the Genocide and Ethnicity in Rwanda,” Canadian Journal of African Studies / Revue canadienne des études africanes 33.2–3 (1999): 293. 15  Newbury and Newbury, “A Catholic Mass in Kigali,” 319. 16  Gishoma, Crises traumatiques collectives.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

297

Crime of Genocide.17 They organized the first annual genocide commemoration at the National Amahoro Stadium in Kigali in April 1995. During the event, they buried an estimated 6000 anonymous genocide victims, including several prominent Hutu victims who were named “national heroes” for their efforts to maintain peace. Most notably, one of the first high-profile political moderates to be killed during the atrocities, Prime Minister Agathe Uwilingiyimana, was honored in this manner.18 In this regard, this first official commemoration aligned with the broader tendency in contemporary official discourse to reference itsembabwoko n’itsembatsemba (“genocide and massacres”): phrasing that was inclusive of Tutsi victims of the genocide and the Hutu and Twa who were murdered for resisting Hutu Power ideology, among other simultaneous forms of political violence.19 Anthropologist Claudine Vidal argued that the government’s inclusive approach was the result of intense internal debates that ultimately concluded that the status of genocide victim should not be afforded solely to the Tutsi, lest they establish an inappropriate hierarchy of suffering that undermined the transitional government’s commitment 17  Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948, 78 U.N.T.S. 276 (entered into force January 12, 1951). treaties.un.org/doc/publication/unts/volume%2078/volume-78-i-1021-english.pdf, accessed August 20, 2021. This prohibition is grounded in the work of Polish Jewish jurist and Holocaust survivor Raphael Lemkin, (1944) who first coined the term “genocide.” Lemkin also co-authored the 1948 UN Genocide Convention, at which point Article II defined genocide in international law as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.” 18  Jennie E. Burnet, Genocide lives in us: Memory and Silence in Rwanda (Madison, WI: Wisconsin UP, 2012) 96; Jennie E.  Burnet, “Uwilingiyimana, Agathe,” Oxford Research Encyclopedia of African History (London, 2019): 12–13. Uwilingiyimana’s efforts to end the ethnic quota system that had limited Tutsi form obtaining positions of power in the government, military and education under the governments of Habyarimana and his predecessor, Grégoire Kayibanda (r. 1962–1973) meant that the Hutu Power extremists regarded her as a key internal enemy. Hutu Power extremists murdered Uwilingiyimana on 7 April, alongside the ten Belgian UNAMIR soldiers who had been charged with her protection. Two days later an interim government was established that was composed entirely of Hutu Power extremists who quickly incited genocide across those areas of Rwanda that were not yet under RPF control (Burnet, “Uwilingiyimana, Agathe,”; Guichaoua, From war to genocide, 214–240). 19  Burnet, Genocide lives in us, 20.

298 

E. JESSEE AND D. MWAMBARI

to building a “durable peace.”20 Such concerns were valid in light of the revenge killings of Hutu by Tutsi genocide survivors and returnees that were occurring in some Rwandan communities at this time, among other forms of ongoing political violence that threatened Rwanda’s stability.21 Designed primarily for Rwandans, with extensive coverage by international media outlets, a key theme of this first official commemoration was condemnation of international actors’ complicity in the atrocities, both in terms of supporting the Hutu Power extremists and failing to intervene successfully to stop the genocide.22 As the Rwandan government concluded its first official commemoration, it then established a Genocide Memorial Commission overseen by former UNESCO Rwanda official and genocide survivor, Louis Kanamugire, with support from Mario Ibarra, an expert on indigenous rights in Latin America who worked for the UN Office of the High Commissioner for Human Rights in Rwanda.23 For the next three years, Kanamugire and Ibarra worked closely with survivors in different communities to document major massacres and mass graves, and figure out what form Rwanda’s genocide memorials might take. Their work informed the Bizimungu government’s emergent “just memory” policies, which viewed genocide memorials as integral for educating the Rwandan people about the dangers of the “bad” history of they had been taught previously—specifically the Hutu-dominated  Grégoire  Kayibanda  (r. 1962–1973) and Habyarimana governments’ efforts to promote ethnic divisions among Rwandans and demonize Rwanda’s Tutsi minority— while simultaneously teaching Rwandans about the “good” history of the

20  Burnet, Genocide lives in us, 96; Claudine Vidal, “Les commémorations du génocide au Rwanda,” Temps modernes 613 (2001): 1–46. 21  Burnet, Genocide lives in us, 96–97; Kimonyo, Rwanda’s Popular Genocide, 110–117. 22  Burnet, Genocide lives in us, 98. There is an extensive body of literature on international—especially French—support for the Habyarimana government (see, for example, Guichaoua, From war to genocide, 63–64; Linda Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (New York: Zed Books, 2000). Similarly, the UN Assistance Mission for Rwanda (UNAMIR) was established in 1993 to oversee international efforts to enforce a peace agreement between Habyarimana’s forces and the RPF. However, this mission ultimately lacked a mandate to intervene militarily to save Rwandan lives, and so its troops became bystanders to the genocide [see, for example, Michael Barnett, Eyewitness to a Genocide: The United Nations and Rwanda (Ithaca, NY: Cornell UP, 2002).] 23  Delia Wendel, Rwanda’s Genocide Heritage: Between Memory and Sovereignty (Durham: Duke University Press, forthcoming), 36.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

299

New Rwanda, which promoted reconciliation by appealing to Rwandans shared national identity.24 Based on their analysis, the Rwandan government began prioritizing the creation of formal memorials at key massacre sites identified by survivors. These first genocide memorials—at Nyamasheke, Ntarama, Nyamata, Nyarubuye, and Murambi among others—were created in 1995 in conversation with survivors associated with Ibuka and with funding from local authorities and Rwanda’s Ministry of Youth and Culture (MYCULTURE).25 However, from the second annual genocide commemoration in Nyamagabe in 1996—which the government organized according to the theme “Twamagane ubutegetsi bubi, dushimangira ubutabera twimakaza umuco w’amahoro n’ubwumvikane” (Shun bad governance, emphasizing justice and a culture of peaceful understanding in Rwanda)—official genocide commemorations changed dramatically: introducing a strict dichotomy between Tutsi genocide victims and Hutu perpetrators.26 Vidal reported that an estimated 20,000 deceased victims of the genocidal massacre at Murambi Technical School were exhumed and reburied in mass graves— which were not consecrated ecumenically—as Tutsi victims of jenoside (genocide), while an additional 1800 bodies were preserved and displayed in the school’s classroom as evidence of the genocide, where they remain today.27 The decision to display these anonymous human remains was controversial among Rwandans due to its violation of contemporary Rwandan customs related to the respectful treatment of deceased loved ones.28 24  Wendel, Rwanda’s Genocide Heritage, 62. For more on the anti-Tutsi and related forms of political rhetoric and policies employed by the Kayibanda and Habyarimana governments, see the work of historian Marie-Eve Desrosiers, “Rethinking political rhetoric and authority during Rwanda’s First and Second Republics,” Africa 84.2 (2014): 199–225. 25  Formerly, the Ministry of Youth, Sport, and Culture (MINISPOC). Ibreck, “The politics of mourning,” 334. 26  Burnet, Genocide lives in us, 98; David Mwambari, The Malleability of Memory: Champions, Antagonists and Fatalists of the Master Narrative of the Genocide in Rwanda (Oxford: Oxford University Press, forthcoming) 61. In future, Kwibuka ceremonies would always be organized around a theme that was intended to reflect the mood in the country and provide Rwandans with a government-approved vocabulary for talking about the genocide. Mwambari, The Malleability of Memory, 93. 27  Vidal, “Les commémorations du génocide au Rwanda,” 24. 28  Déogratias Bagiliyisha, “Mourning and recovery from trauma: In Rwanda, tears flow within,” Transcultural Psychiatry 37.3 (2000): 337–353; Jessee, Negotiating genocide in

300 

E. JESSEE AND D. MWAMBARI

However, many Rwandans also found the ­ceremony’s focus on Tutsi victims of the genocide potentially dangerous for reifying the racialized ethnic categories that made the genocide possible, while obscuring the possibility of Hutu and Twa victims of the genocide and related mass atrocities, and creating an “inaccurate dyadic relationship between victim and perpetrator whereby anyone not labelled a ‘victim’ in the ceremonies automatically fell into the category of perpetrator.”29 These controversial features of the 1996 Nyamagabe commemoration were upheld in subsequent national commemoration ceremonies, and applied to the official genocide memorials in existence at this time. In 1997, the Rwandan government made its first effort to enshrine its approach to genocide commemoration in domestic law with its Draft Law on Genocide Memorials.30 Anthropologist Delia Wendel argues that this draft law established the emergent state-funded memorials as critical for preserving an important aspect of Rwanda’s cultural heritage, and prioritized the preservation and display of tangible evidence of the genocide, including anonymous human remains, related personal effects, and relevant buildings.31 In the process, this draft law set important legal precedence for the creation of additional genocide memorials around Rwanda, building upon the model established at the 1996 commemoration in Nyamagabe.

Toward an Official Narrative of the “1994 Genocide against the Tutsi”: 2001–2010 In 1999, the Bizimungu government approved a new parliamentary law that established the National Unity and Reconciliation Commission (NURC) to conduct research and oversee policy development aimed at

Rwanda, 2017, 220; Erin Jessee, “Promoting reconciliation through exhuming and identifying victims of the 1994 Rwandan genocide,” Centre for International Governance Innovation Africa Initiative Discussion Paper Series 4, July 2012, www.cigionline.org/sites/ default/files/no4_0_0.pdf, accessed August 21, 2021. 29  Burnet, Genocide lives in us, 101. 30  This draft law was the outcome of a “three-phrase plan” to create official genocide memorials at key massacre sites that had been initiated by the Bizimungu government in 1995 (Burnet, Genocide lives in us, 2012, 107). This plan included the creation of memorial sites in all eleven prefectures and consecrated reburial of all remains that were recovered surrounding these sites. 31  Wendel, Rwanda’s Genocide Heritage, 77–78.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

301

eradicating ethnic divisions among Rwandans following the genocide.32 Going forward, Rwanda’s commemorative policies and practices largely fell under its jurisdiction as one of its primary mandates was to facilitate “understanding the past” by establishing and disseminating an official history of events surrounding the genocide.33 However, soon after NURC’s creation, Bizimungu resigned as President for “personal reasons” amid rumors that he had fallen out with the RPF, and in particular, his Vice President and Minister of Defense, Paul Kagame, whom many Rwandans believed to be the real political power in Rwanda.34 Kagame was already a well-known political figure within Rwanda: a Tutsi man descended from a powerful lineage of the Abega clan that had dominated the Nyiginya monarchy in the early 1900s, he led the RPF’s military arm—the Rwandan Patriotic Army (RPA)—during the civil war and genocide, and was credited internationally with having ended the genocide by securing the RPF’s military victory.35 Kagame ascended to the Presidency in 2000, alleging that the RPF had forced Bizimungu to step down due to corruption, including tax fraud, illegally dispossessing farmers, and interfering with efforts to investigate his abuses of power.36 However, Bizimungu was not charged with any crimes until 2001, when he attempted to create a new political party, Parti Democratique pour le Renouveau-Ubuyanja (PDR), which the Kagame government allegedly feared could effectively rally Rwanda’s Hutu majority against the RPF.37 Bizimungu was immediately charged and ­imprisoned, and members of the PDR subject to police harassment. During his 2004 32  “NURC Background,” National Unity and Reconciliation Commission (NURC), 2020, www.nurc.gov.rw/index.php?id=83. Accessed 8/21/2020. 33  Mwambari, The Malleability of Memory, 87. 34  “Analysis: Why Bizimungu Mattered,” BBC World News, March 23, 2000, news.bbc. co.uk/1/hi/world/africa/688587.stm, accessed August 21, 2021; Thomson, Rwanda: From Genocide to Precarious Peace, 137. Political scientist Susan Thomson notes that Bizimungu’s resignation immediately followed a “stinging attack on parliament” during which he made “thinly veiled references to Kagame’s increasing control over the political process” and denounced several of the RPF’s most influential senior members. (Thomson, Rwanda: From Genocide to Precarious Peace, 138.) 35  Sarah Watkins and Erin Jessee, “Legacies of Kanjogera: Women political elites and the transgression of gender norms in Rwanda,” Journal of Eastern African Studies 14.1 (2020): 99. 36  Filip Reyntjens, “Rwanda, ten years on: From genocide to dictatorship,” African Affairs 103 (2004): 181; Kimonyo, Rwanda’s Popular Genocide, 159–162. 37  Danielle Beswick, “Managing dissent in a post-genocide environment: The challenge of political space in Rwanda,” Development and Change 41.2 (2010): 235.

302 

E. JESSEE AND D. MWAMBARI

trial, Bizimungu was found guilty of attempting to form a militia, inciting public violence, and embezzling funds, for which he received a 15-year sentence. He was subsequently granted a presidential pardon in 2007, but by this point, his political influence had waned.38 Legal theorist Filip Reyntjens argues that Bizimungu’s resignation was part of a larger “purge” of RPF officials who, in response to growing tensions between the Rwandan Tutsi who had lived through the genocide and those who had returned to Rwanda from neighboring nations following the RPF victory, resigned their positions in 2000.39 This purge included several genocide survivors who had helped establish Rwanda’s first memory laws and related institutions, including Ibuka’s founder, Bosco Rutagengwa, who subsequently received asylum in the US.40 This period was also characterized with internal political turmoil within the RPF leadership, whereby high-ranking officials accused each other of corruption.41 Following this upheaval and associated purges, the Kagame government’s official history of the genocide narrowed and it began gradually introducing stricter oversights to ensure Rwandans’ public adherence. One key institution that arguably helped to reinforce a narrower interpretation of events related to the 1994 genocide was the reinvention of gacaca: a dispute resolution mechanism that the Nyiginya Kingdom monarchs had employed from the sixteenth to the mid-twentieth centuries to resolve interpersonal and community conflicts.42 A 1996 UN High Commissioner for Human Rights (UNHCHR) report reveals that gacaca was identified as a possible means of promoting accountability for genocide-­ related crimes immediately following the genocide. Shortly after, the Bizimungu government agreed to trial gacaca in a few Rwandan communities in the hopes of establishing a model that could rapidly address the backlog of an estimated 150,000 people—predominantly Hutu—who had been arrested and were awaiting trial for crimes they had allegedly committed during the 1994 genocide.43

 Thomson, Rwanda: From Genocide to Precarious Peace, 140.  Reyntjens, “Rwanda, ten years on,” 180. 40  Reyntjens, “Rwanda, ten years on,” 182. 41  Jean Paul Kimonyo, Transforming Rwanda: Challenges on the Road to Reconstruction (London: Lynne Rienner Publishers, 2019) 162. 42  Gahima, Transitional Justice in Rwanda; Bert Ingelaere, Inside Rwanda’s Gacaca Courts: Seeking Justice After Genocide (Madison: Wisconsin UP, 2016). 43  Ingelaere, Inside Rwanda’s Gacaca Courts, 22–23. 38 39

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

303

It was only after Kagame became president, however, that the Rwandan government established its first law on gacaca in 2001,44 allowing them to continue adapting gacaca in a few communities to address genocide-­ related crimes, before settling on a model that could be used nation-wide starting in 2005.45 This law allowed the Rwandan government to trial gacaca in a few communities, before settling on a model that was intended to facilitate restorative justice by promoting “truth-telling” among the general public—centered on confessions by perpetrators before a committee of lay judges—that was appropriate to roll out across the country starting in 2005.46 Shortly after its nation-wide launch, however, anthropologist Bert Ingelaere observed that gacaca moved away from its intended goals and began pursuing retributive justice, whereby survivors and other witnesses made accusations—sometimes false—against defendants, in response to which the defendants frequently pleaded not guilty, but were nonetheless convicted by lay judges.47 Perhaps as a result of this shift, Ingelaere found that rates of participation in gacaca among the general public were surprisingly low—averaging at 2.2  percent of the nation’s overall population—compared to the mass participation that its advocates had originally envisioned.48 As a result, by the time gacaca concluded in 2013—having considered 1,958,634 cases of alleged participation in genocide-related crimes—its 44  “Organic Law No. 40/2000 of 26/01/2001 Setting Up Gacaca Jurisdictions and Organizing Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed Between October 1, 1990 and December 31, 1994,” www. refworld.org/cgi-bin/texis/vtx/rwmain/opendocpdf.pdf?reldoc=y&docid=52f2349c4, accessed August 21, 2021. 45  Kimonyo, Rwanda’s Popular Genocide, 171; “No.16/2004 of 19/6/2004: Organic Law Establishing the Organisation, Competence and Functioning of Gacaca Courts Charged with Prosecuting and Trying the Perpetrators of the Crime of, Genocide and Other, Crimes Against Humanity, Committed Between October 1, 1990 and December 31, 1994,” Official Gazette of the Republic of Rwanda, repositories.lib.utexas.edu/bitstream/handle/2152/4582/3677.pdf?sequence=1, accessed August 21, 2021. 46  Ingelaere, Inside Rwanda’s Gacaca Courts, 25; Kimonyo, Rwanda’s Popular Genocide, 171. 47  Ingelaere, Inside Rwanda’s Gacaca Courts, 5. (see also, Max Rettig, “The Sovu Trials: The Impact of Genocide Justice on One Community,” Remaking Rwanda: State Building and Human Rights After Mass Violence, eds. S. Straus and L. Waldorf (Madison: Wisconsin UP, 2011) 194–209; Susan Thomson and Rosemary Nagy, “Law, Power, and Justice: What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts,” International Journal of Transitional Justice 5.1 (2011): 11–30. 48  Ingelaere, Inside Rwanda’s Gacaca Courts, 22.

304 

E. JESSEE AND D. MWAMBARI

legacies as a transitional justice mechanism were mixed, with Rwandans and scholars alike divided regarding the extent to which it facilitated a kind of “negotiated reconciliation” among Rwandans through long-term formal and informal negotiations between antagonistic parties or was instead stymied by the RPF’s decision to use gacaca to maintain centralized control over its citizens. For example, Ingelaere concluded that the RPF had increasingly used gacaca to maintain centralized control over Rwanda’s rural majority through a “dense web of administrative structures, a semi-hidden network of intelligence agents, and continuous re-­ education and sensitization activities.”49 This meant that many Rwandans—anticipating constant state surveillance surrounding gacaca activities—learned to uphold rehearsed consensus with government policies and its preferred official narrative of the genocide in public settings. Simultaneously, Ingelaere argued that the judges’ tendency to systematically exclude “all crimes under investigation that could not be qualified as acts of genocide against the Tutsi population”50—even though gacaca’s foundational laws technically allowed judges to consider crimes committed during the civil war and genocide regardless of the victim’s ethnicity— left many Rwandans with the sense that gacaca prioritized Tutsi suffering during the genocide, reinforcing an “amplified silence” that surrounded atrocities allegedly perpetrated by RPA combatants against Hutu and Twa civilians during the civil war and genocide,51 as well as associated with the broader forms of political violence that overwhelmed Rwanda in the 1990s. Meanwhile, to further educate Rwandans and international visitors about the government’s preferred official narrative of the genocide, in 2004 the Kigali City Council—with support from the UK-based organization, Aegis Trust—opened the Kigali Genocide Memorial (KGM).52 Among its primary goals, the KGM was intended to provide a place where deceased victims of the genocide could be buried respectfully, and survivors could safely pay their respects. The KGM also included exhibits in Kinyarwanda, English, and French aimed at educating visitors about events in Rwanda leading up to the genocide. These exhibits have evolved  Ingelaere, Inside Rwanda’s Gacaca Courts, 115.  Ingelaere, Inside Rwanda’s Gacaca Courts, 95–96. 51  Burnet, Genocide lives in us, 2012, 111. 52  Jessee, Negotiating genocide in Rwanda, 47; Amy Sodaro, “Politics of the Past: Remembering the Rwandan Genocide at the Kigali Memorial Centre,” Curating Difficult Knowledge: Violent Pasts in Public Places, eds. E. Lehrer, C. Milton, and M. Patterson (New York: Palgrave Macmillan, 2011) 72–83. 49 50

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

305

since the KGM opened, but have remained an important first point of contact for many international visitors to Rwanda for learning about this dark period in Rwanda’s past, including the damage done by Rwanda’s colonization by the Germans (1895–1916) and Belgians (1916–1962)— the latter of whom firmly entrenched an understanding of Tutsi, Hutu and Twa as separate ethnic groups—and the “bad” history that Rwandans were taught during the Kayibanda and Habyarimana governments, which further entrenched ethnic divisionism among Rwandans.53 The KGM’s Documentation Centre and associated Genocide Archive Rwanda also leads research and education activities within Rwanda, and prioritizes education for Rwandan youth and other key cohorts, in accordance with Rwanda’s evolving laws and policies on the genocide.54 As the Rwandan government’s interest in establishing a stricter official history related to the genocide intensified, it also invested in the creation of the National Commission for the Fight Against Genocide (La Commission Nationale de Lutte contre le Genocide) in 2007.55 After being enshrined in domestic law, the CNLG became responsible for overseeing the state-funded genocide memorials and events related to the annual genocide commemorations, as well as supporting research and education on the genocide within and beyond Rwanda.56 In doing so, it began working closely with other government ministries, such as MYCULTURE and the Ministry of Education (MINEDUC), and Rwandan survivors’ organizations to ensure that the commemorations and research being carried out within Rwanda upheld the official narrative of the genocide. One of the CNLG’s first tasks was to support the creation of a new law criminalizing what the Rwandan government termed “genocide ideology”—defined as “an aggregate of thoughts characterized by conduct, speeches, documents and other acts aiming at exterminating or inciting 53  For a more detailed overview of the official history disseminated at the KGM and other state-funded genocide memorials in Rwanda, see Jessee, Negotiating genocide in Rwanda, 45–80. 54   Genocide Archive of Rwanda (2015), genocidearchiverwanda.org.rw/index. php?title=Welcome_to_Genocide_Archive_Rwanda, accessed August 21, 2021. 55  “National Commission for the Fight Against Genocide (CNLG): Overview,” Republic of Rwanda. (2021), cnlg.gov.rw/index.php?id=10, accessed August 21, 2021. 56  Law No. 09/2007 of 16/02.2007, “On the Attributions, Organisation, and Functioning of the National Commission for the Fight Against Genocide (CNLG),” cnlg.gov.rw/fileadmin/templates/documents/Law_establishing_CNLG.pdf, accessed August 21, 2021.

306 

E. JESSEE AND D. MWAMBARI

others to exterminate people basing [sic.] on ethnic group, origin, nationality, region, color, physical appearance, sex, language, religion or political opinion, committed in normal periods or during war,”—which entered into force in 2008.57 The Rwandan government justified the new law on the grounds that it was no different from the various domestic laws that criminalized Holocaust denial and hate crimes against marginalized racial groups across Europe and North America.58 This position was subsequently reinforced by Rwandan officials and survivors’ organizations who made a strong moral argument that equated recognition of non-Tutsi victims of the genocide and discussion of the other forms of political violence that occurred surrounding the 1994 genocide with a kind of genocide denial.59 Indeed, the new law created an opportunity for the CNLG to exercise even greater authority over the annual commemorations and related activities. In 2009, the CNLG introduced the title Kwibuka for the annual genocide commemorations, accompanied by appropriate branding for the event. The CNLG oversees all associated activities, as well as the resulting Kwibuka signage and related souvenirs, and removes any deviating materials. The effect is that Kwibuka-related “visual and aural reminders of ethnicity and violence appear overnight on 7 April and disappear just as quickly overnight on 3 July [sic.]” when the broader three-month commemoration period ends.60

57  Law No. 18/2008 of July 23, 2008, “Relating to the Punishment of the Crime of Genocide Ideology,” www.refworld.org/pdfid/4acc9a4e2.pdf, accessed August 21, 2021. The new genocide ideology law built upon a 2001 law that criminalized discrimination and sectarianism (Republic of Rwanda 2001b). Indeed, human rights scholars Lars Waldorf (2009, 109) notes that prior to 2008, offending Rwandans were prosecuted on charges of genocide ideology even though the government had not yet created a law to define what this term meant. 58  Martin Ngoga, “Why Rwanda Need the Law Repressing Genocide Denial and Ideology,” Umuvugizi, June 4, 2011, umuvugizi.wordpress.com/2011/06/04/why-rwanda-needs-­ the-law-repressing-genocide-denial-and-ideology/, accessed August 21, 2021. 59  See for example, Lonzen Rugira, “Genocide against the Tutsi has passed moral, legal, and political tests,” The New Times, April 16, 2020, www.newtimes.co.rw/opinions/ genocide-­against-tutsi-has-passed-moral-legal-and-political-tests, accessed August 21, 2021. 60  Gretchen Baldwin, “Constructing Identity through Commemoration: Kwibuka and the Rise of Survivor Nationalism in Post-Conflict Rwanda,” Journal of Modern African Studies 57.3 (2019): 11. A week of events from 7 to 14 April that corresponds with the most intense period of murders during the genocide are intended to encourage Rwandans to reflect on the three months of ethnic violence that overwhelmed their nation in 1994, and so people are expected to eschew non-Kwibuka events. After this week, the situation in Rwanda is less

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

307

However, international observers—often guided by research among concerned Rwandans—argued that the genocide ideology law was a new tool that the Kagame government would use to repress Rwanda’s political opposition and silence civilians who sought to discuss their complex experiences surrounding the genocide in public forums. Two years after its entry into force, Amnesty International published a report that confirmed many international human rights watchdog’s concerns, noting that while it was legitimate for the government to want to prohibit hate speech, the government’s “vague wording of the laws is deliberately exploited to violate human rights… compromising the freedom of expression and association of opposition politicians, human rights defenders and journalists critical of the government.”61 Amnesty International further warned, “The laws have had a corrosive effect on mutual trust in a society already fragile after the 1994 genocide and run counter to the government’s stated commitment to national unity.”62 With these warnings, critics anticipated the Rwandan government’s increased use of memory laws as a means to reinforce its power across Rwanda by limiting its citizens’ political freedom, among other civil liberties. Such concerns were largely overshadowed, however, by broader support for the Kagame government among high-profile international figures such as Bill Clinton and Tony Blair and the media due to its simultaneous development successes in education, healthcare, and the promotion of gender equality, among others.63

somber as people return to their regular activities, though technically Kwibuka events continue until 17 July of each year to mark the approximately 100 days of the genocide. 61  “Rwanda: Safer to stay silent: The chilling effect of Rwanda’s laws on ‘genocide ideology’ and ‘sectarianism’,” Amnesty International, August 31, 2010, 7. www.amnesty.org/ download/Documents/36000/afr470052010en.pdf, accessed August 21, 2021. 62  David  Mwambari, “Agaciro, vernacular memory, and the politics of memory in post-­ genocide Rwanda,” African Affairs 120.481 (2021): 611–628. “Rwanda: Safer to stay silent: The chilling effect of Rwanda’s laws on ‘genocide ideology’ and ‘sectarianism’,” Amnesty International, August 31, 2010, 8. www.amnesty.org/download/ Documents/36000/afr470052010en.pdf, accessed August 21, 2021. 63  Jessee, Negotiating genocide in Rwanda, 12; see also, “Tony Blair defends Rwanda’s role in DR Congo,” BBC World News, February 27, 2013, www.bbc.co.uk/news/world-­ africa-­21608906, accessed August 21, 2021; “20 minutes with Bill Clinton—up against ‘big poppa’,” BBC World News, August 12, 2013, www.bbc.com/news/world-africa-23632845, accessed August 21, 2021.

308 

E. JESSEE AND D. MWAMBARI

Internationalizing the “1994 Genocide of the Tutsi”: 2010–Present Around this time, critical scholarship began to emerge on the Rwandan government’s increased use of memory laws to reinforce its legitimacy, among other politicized purposes. Such sentiments were reinforced by political scientist Rachel Ibreck’s findings that the new official label of “the 1994 genocide against the Tutsi” “alters the context in which the commemorations take place and means that Tutsi victimhood is now securely established in public discourse.”64 Similarly, anthropologist Jennie Burnet published her critique of the Rwandan government’s official narrative of the genocide, noting it had created a “shibboleth of genocide” that oversimplifies the atrocities by focusing solely on the “innocent Tutsi victims” who were murdered by “guilty Hutu perpetrators.”65 Perhaps in response to growing international criticism, in 2013 and 2018 the Rwandan government considered revising its genocide ideology law to include “a narrower definition of the offense and a reduction in prison sentences,” though organizations like Human Rights Watch simultaneously noted that it still “retained the notion of ‘genocide ideology’ as a criminal offense punishable by imprisonment and contained vague language that could be used to criminalize free speech.”66 Meanwhile—and perhaps again in response to growing international criticism of the increased politicization of Rwanda’s Kwibuka events—after 2014 the CNLG enabled a shift “from larger, state-performed commemoration events to more intimate community-based events” that permitted a more multi-layered and dynamic Kwibuka period that people could engage with—or not, as the case may be—in accordance with their personal preferences.67 64  Rachel Ibreck, “A Time of Mourning: The Politics of Commemorating the Tutsi Genocide in Rwanda,” Public Memory, Public Media and the Politics of Justice, eds. P. Lee and P. Thomas (London: Palgrave Macmillan, 2012) 103. 65  Burnet, Genocide lives in us, 128. 66  “World Report 2013: Rwanda,” Human Rights Watch, 2013, www.hrw.org/world-­ report/2013/country-chapters/rwanda#, accessed August 21, 2021. The 2013 proposed revisions to Rwanda’s genocide ideology law ultimately did not pass, while the 2018 proposed revisions have now passed parliament. However, the 2008 law and definition currently remains in force (Eugène Kwibuka, “Parliament passes law against genocide ideology,” The New Times, July 12, 2018, www.newtimes.co.rw/news/parliament-law-genocide-ideology, accessed August 21, 2021. 67  Baldwin, “Constructing Identity through Commemoration,” 10.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

309

Simultaneously, the CNLG also worked to positively transform the memorials that served as a focal point for learning about the genocide. For example, in response to concerns that working at the memorials was proving too challenging for people who had survived or whose loved ones had been murdered at these sites, after 2010 the Rwandan government introduced a training program to provide its staff and local survivors with coping strategies for handling challenging visitors and the broader negative psychological consequences of long-term work at these sites.68 The government has also increasingly provided funding to ensure that the nation’s smaller and less well-funded memorials are renovated, as necessary, to ensure that the human remains and related evidence of the genocide are well-preserved. While the displaying of anonymous human remains as evidence still violates Rwandan customs related to the respectful treatment of the dead, some Rwandans have been appeased by recent efforts to protect these remains by placing them behind clear plastic or glass. Additionally, several larger memorials now include cement-covered mass graves or crypts full of coffins where people can remember their missing and murdered loved ones without having to see bones or other potentially distressing evidence associated with the genocide. These measures are currently associated with the Rwandan government’s efforts since 2017 to promote agaciro (“dignity”)—a concept that has increased salience for state ambitions for Rwanda’s future—via official commemorations.69 Where such improvements are impossible, smaller memorials are incorporated into larger, more sustainable sites. However, concerns persist that amid these important changes in commemorative practices the Rwandan government continues to prioritize its political interests at the expense of genuine national unity and reconciliation. One area in which such concerns are especially prevalent relate to the Rwandan government’s intensified efforts to promote widespread adoption of its official label of “the 1994 genocide against the Tutsi.” Following extensive international lobbying, it has experienced some success in convincing prominent international institutions, such as the UN, as well as friendly nations, to adopt the “1994 genocide against the Tutsi” in official discourses on the atrocities. The Rwandan government’s efforts since  Jessee, Negotiating genocide in Rwanda, 87–88.  Annalisa Bolin, “Dignity in Death and Life: Negotiating Agaciro for the Nation in Preservation Practice at Nyamata Genocide Memorial, Rwanda,” Anthropological Quarterly 92.2 (2019): 345–374. 68 69

310 

E. JESSEE AND D. MWAMBARI

2012 to encourage international recognition of the “1994 genocide against the Tutsi” by nominating four state-funded genocide memorials at Nyamata, Murambi, Bisesero, and Kigali to the UNESCO World Heritage List  are under consideration.70 In 2018, similar lobbying convinced the UN General Assembly to rename 7 April “the International Day of Reflection on the 1994 genocide against the Tutsi in Rwanda.”71 Several nations are now debating adopting this label in state discourse: for example, in 2019 the Belgian government set controversial precedence by deciding to criminalize denial of the 1994 genocide against the Tutsi in Belgium.72 Soon after, in France in December 2020, genocide survivors associated with Ibuka France convinced a Parisian judge to refer the case of journalist Natacha Polony for trial. During a media interview, Polony referred to events surrounding the 1994 genocide as characterized by “not at all a distinction between the bad guys and the good guys… we had bastards against other bastards,” which Ibuka France argued constituted a violation of France’s genocide denial laws for “equivocating around the

70  Annalisa Bolin, “Imaging Genocide Heritage: Material Modes of Development and Preservation in Rwanda,” Journal of Material Culture 25.2 (2020): 200; see also, “Sites mémoriaux du génocide: Nyamata, Murambi, Bisesero et Gisozi,” UNESCO World Heritage Centre (2012), whc.unesco.org/en/tentativelists/5753/, accessed August 21, 2021. 71  It is important to note that in doing so, the UN also encourages participants to acknowledge the Hutu and Twa who died in opposition to the genocide. See, for example, “General Assembly Designates 7 April International Day of Reflection on 1994 Genocide against Tutsi in Rwanda, Amending Title of Annual Observance,” United Nations: Meetings Coverage and Press Releases, January 26, 2018, www.un.org/press/en/2018/ga12000.doc.htm, accessed August 21, 2021; and David Mwambari, ‘Emergence of Post-Genocide Collective Memory in Rwanda’s International Relations’, in Elijah Nyaga Munyi, David Mwambari, and Aleksi Ylönen (eds), Beyond history: African agency in development, diplomacy and conflict resolution (London: Rowman & Littlefield International, 2020), 119–34. 72  Julius Bizimungu, “How significant is Belgium’s move to criminalise genocide denial?” The New Times, April 10, 2019, www.newtimes.co.rw/news/how-significant-belgiums-­ move-criminalise-genocide-denial, accessed August 21, 2021; Lisa Bradshaw, “Belgium to pass law that makes denial of genocide illegal,” The Bulletin, August 4, 2019, www.thebulletin.be/belgium-pass-law-makes-denial-genocide-illegal, accessed August 21, 2021. In addition to the scholarly concerns with adopting this label in official discourse, the Belgian government has been heavily criticized by other Belgium-based genocide survivors organizations in Belgian who wish to see a failure to properly recognize and label the genocides that resulted in their displacement from their home nations similarly reinforced in domestic laws (“Belgium implements EU ban on genocide denial; Stirs up controversy,” AGBU Europe (2019), agbueurope.org/controversy-over-belgiums-implementation-of-eu-ban-on-­ genocide-­denial/, accessed August 21, 2021.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

311

victims and executions of the genocide against the Tutsi.”73 The Rwandan government and its international supporters achieved these advances amid ongoing criticisms that Rwanda’s official approach to commemoration reinforces “a survivor nationalism diametrically opposed to the homogeneity of the rest of the year,” referring to official efforts to encourage Rwandans to eschew divisive ethnic labels and identify according to a shared national identity.74

The Impact of Rwanda’s Memory Laws: The Cases of Kizito Mihigo and Victoire Ingabire Our analysis thus far demonstrates that the Rwandan government has taken an increased interest in developing laws aimed at restricting how the 1994 genocide is commemorated in public settings, resulting in increased international criticism that Rwanda’s particular approach to nationalized commemoration and related transitional justice initiatives has attracted, especially since 2010. But it is also important to consider the consequences of Rwanda’s memory laws for Rwandans, and particularly those who have sought to create public space to discuss alternative understandings of Rwanda’s past surrounding the genocide. To this end, in the formative years that surrounded the creation of Rwanda’s first memory laws and related institutions and activities, it seems there was some space for Rwandans from different ethnic backgrounds to be recognized as victims of the genocide, and likewise, the label of “perpetrator” was attributed to the Hutu Power extremists and their supporters, rather than the Hutu as an ethnic group. Perhaps for this reason, there are few examples of Rwandans being officially harassed or persecuted for failing to uphold the government’s emergent official history of the genocide specifically, though some Rwandans were allegedly persecuted after being identified as potential political subversives for critiquing the transitional government’s ambitions or policies, more broadly, and especially related to the political purge

73  Jeune Afrique, “Rwanda/France: Journalist Natacha Polony on trial for genocide,” The Africa Report, December 17, 2020, www.theafricareport.com/55509/rwanda-france-­ journalist-­natacha-polony-tried-for-genocide-denialism/, accessed August 21, 2021. 74  Baldwin, “Constructing Identity through Commemoration,” 3.

312 

E. JESSEE AND D. MWAMBARI

in 2000.75 However, as the Rwandan government committed to the ­creation of a legally reinforced official history of the genocide, evidence began to emerge that Rwandans who attempted to complicate or resist this official history did so at great personal and professional risk. Mihigo’s case offers an example of this, particularly considering how many Rwandan interpret his imprisonment and death as motivated by his overt criticism of the Rwandan government’s official history in his later music. Born in Gikongoro prefecture in 1981 to a devout Catholic family, Mihigo was 13 years old when, due to his family’s Tutsi heritage, his parents were killed during the genocide. He and the remainder of his family fled to Burundi for safety, but following the RPF’s establishment of a broad-based transitional government, Mihigo returned to Rwanda and resumed his education at the Petit Séminaire de Butare. There, Mihigo— who was already demonstrating promise as a musician—joined the school choir. He remembered this time as transformative. While in the early months of his return to Rwanda, he found himself overwhelmed by a desire to avenge his parents’ deaths, not only on their actual killer—a man Mihigo identified as Dr. Mutazihana—but on the Hutu, whom he held responsible for the genocide, more generally. However, his positive experiences with the choir, most members of which were Hutu, gradually helped him let go of this hatred and embrace reconciliation, in accordance with contemporary Rwandan memory laws and related policies.76 Mihigo began composing and by 1999, he had written over 200 liturgical songs that were performed in Catholic masses around Rwanda. Due to his growing celebrity, in 2000 he was invited to collaborate on composing Rwanda’s new national anthem, Rwanda Nziza, which celebrates the nation’s natural beauty, as well as its citizens’ shared culture and commitment to peace. Then, in 2004—in an effort to reconcile with those individuals whom Mihigo held most responsible for the suffering endured by his family 75  For example, Nkubito died under mysterious circumstances in 1997, after having made a name for himself as a human rights champion opposed to the RPF’s increased reliance on human rights violations to consolidate their power across Rwanda (Timothy Longman, “Limitations to political reform: The undemocratic nature of transition in Rwanda,” Remaking Rwanda: State Building and Human Rights After Mass Violence, eds. S. Straus and L.  Waldorf (Madison: Wisconsin UP, 2011) 29. Newbury and Newbury argue, “his death and his silenced voice represent the marginalized—and precarious—position of political moderates, in a highly politicized atmosphere.” (Newbury and Newbury, “A Catholic Mass in Kigali,” 318). 76  Mwambari, “Music and the politics of the past,” 1326.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

313

during the genocide—he met with and forgave Dr. Mutazihana. Mihigo then re-established a childhood friendship with the man’s daughter grounded in the “sweet memories we shared before the genocide.”77 Mihigo’s first-­hand experiences of forgiveness and reconciliation began to inform his compositions, which he increasingly wrote for popular Rwandan audiences. Singing in Kinyarwanda and drawing upon contemporary Roman Catholic and Rwandan values, Mwambari argues that Mihigo’s early music provides a good example of how one artist was able to shape the mnemonic experience of Rwandans that transcended borders, and resonated with people regardless of ethnic heritage, politics, and other potential divisive factors.78 These experiences and his growing platform as a celebrated composer and performer prompted Mihigo to begin composing popular music about his journey as a genocide survivor and calling upon Rwandans to forgive each other and support unity and reconciliation in their communities, in accordance with the broader climate of nationalized commemoration in which he was embedded. Mihigo was catapulted to fame across Rwanda with the release of his 2011 song, Twanze Gutoberwa Amateka (“We refuse to let anyone confuse our History”), to coincide with Kwibuka17. His lyrics include an appeal to Rwandans to “be united” and a wish that “our History, either the best or the worst, let us protect it from torturers with destroying thoughts, let the real love of our country induce us to defend it.”79 More broadly, Amateka encouraged Rwandans to embrace their duty to remember the genocide out of love for their nation. Political scientist David Mwambari observed that Amateka provoked fruitful conversations among Rwandans from a range of backgrounds relative to the genocide, including those in prison for genocide-related crimes, and was subsequently widely played by the Rwandan media during the next three Kwibuka events. Mihigo’s 2012 release, Ijoro Ribara Uwariraye (“The One Who Was Awake Narrates the Night Tales”), continued to develop this theme, calling upon “children of our homeland Rwanda, come let us remember, remember the Genocide Against the Tutsi.” Mihigo’s lyrics further encouraged Rwandans to embrace their sorrow, as “it’s in that misery that Rwanda found its strength.” Overall, Amateka’s  Mwambari, “Music and the politics of the past,” 1327.  Mwambari, The Malleability of Memory, 174. 79  Translations of Mihigo’s lyrics are provided by David Mwambari (see also, Mwambari, “Music and the politics of the past,” 1328). 77 78

314 

E. JESSEE AND D. MWAMBARI

broader message aligned effectively with the Rwandan government’s official narrative of the genocide and its efforts to promote national unity and reconciliation. However, despite Mihigo’s initial success in producing music that aligned with the official history on the genocide and broader ambitions for Kwibuka, he soon began writing music that proved politically controversial, leading swiftly to his downfall. In particular, Mihigo’s composition for Kwibuka20, Igisobanuro cy’Urupfu (“The Meaning of Death”), included the lyrics “there is no good death, whether genocide, the civil war, being killed in revenge attacks, or dying from illness” and an expression of hope that his experiences of the genocide would “not make me lose empathy for others.” Intended to validate all Rwandans’ experiences of suffering surrounding the genocide as worthy of commemoration—Hutu and Twa experiences of which were obscured by official discourse related to the “1994 genocide against the Tutsi”—Mihigo transgressed the “amplified silence” that surrounds RPA atrocities perpetrated against ethnic Hutu and Twa civilians during the civil war, and against civilians who were alleged Hutu Power extremists or regarded as potential political threats as the RPF consolidated its power across Rwanda between 1994 and 1996.80 Mihigo’s efforts to promote empathy for everyone whose loved ones were murdered in the broader political violence that overwhelmed Rwandan in the 1990s were applauded by many Rwandans—including many Hutu—for “finally acknowledging other versions of…history.”81 However, immediately following the song’s online release, it was banned in Rwanda. Mihigo was subsequently reported missing, and his whereabouts unknown until 15 April 2014, when BBC Great Lakes News announced that he had been detained by the Rwandan police on allegations that he was planning terrorist attacks with two notorious threats to Rwanda’s internal security: the Rwanda National Congress (RNC), a political party consisting primarily of exiled opposition figures; and the Democratic Forces for the Liberation of Rwanda (FDLR), consisting primarily of Hutu Power extremists who were living in the Democratic Republic of Congo as refugees.82 80  Mwambari, “Music and the politics of the past,” 1329; Burnet, Genocide lives in us, 111; Straus 2019. 81  Mwambari, “Music and the politics of the past,” 1330. 82  “Rwanda’s Kizito Mihigo and Cassien Ntamuhanga arrested,” BBC World News, April 14, 2014, www.bbc.co.uk/news/world-africa-27028206, accessed August 21, 2014.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

315

An outpouring of anger from his fans quickly revealed concerns that his arrest was directly related to “The Meaning of Death,” which challenged the Rwandan government’s preferred official history of the 1994 genocide. Mihigo, however, subsequently pleaded guilty—allegedly based on a confession obtained under torture—and requested the government’s forgiveness, for which he was sentenced to ten years in prison and his music banned in Rwanda.83 He was then among 2000 Rwandans who were granted a presidential pardon in 2018, and released on the condition that he report once a month to the local prosecutor and seek authorization before attempting to travel abroad.84 However, on 14 February 2020 Mihigo was caught by the Rwanda Investigation Bureau (RIB) while attempting to cross the border into Burundi—allegedly to join “terrorist” groups—and rearrested for violating the terms of his 2018 pardon. Three days later, the RIB announced his alleged suicide by hanging, and Mihigo’s transition—at least according to official sources—from beloved national icon of the “New Rwanda” to “a criminal who betrayed the president” was complete.85 It is important to highlight that Mihigo was never formally charged for violating Rwanda’s memory laws, though many fans widely believed his prosecution and death was the result of his efforts to challenge to the official history of “the 1994 genocide against the Tutsi.” Arguably, his status as a Rwandan of Tutsi heritage who was also a survivor of the genocide and whose early music was featured in Kwibuka events might have made it difficult for the state to prosecute him for genocide ideology and divisionism. To this end, the case of Victoire Ingabire offers valuable insights regarding how the government applies genocide ideology and related memory laws to persecute Rwandans who challenge its preferred official history. 83  “Kizito Mihigo: The Rwandan gospel singer who died in a police cell,” BBC World News, February 29, 2020, www.bbc.co.uk/news/world-africa-51667168, accessed August 20, 2021; “Rwanda musician Kizito Mihigo admits opposition RNC contact,” BBC World News, November 7, 2014, www.bbc.co.uk/news/world-africa-29951677, accessed August 21, 2021; “We will force you to confess: Torture and unlawful military detention in Rwanda,” Human Rights Watch (2017): 41, www.hrw.org/sites/default/files/report_pdf/ rwanda1017_web_0.pdf, accessed August 21, 2021. 84  “Rwanda: Shocking death of gospel singer in custody must be effectively investigated,” Amnesty International, February 17, 2020, www.amnesty.org/en/latest/news/2020/02/ rwanda-shocking-death-of-gospel-singer-in-custody-must-be-effectively-investigated/, accessed August 21, 2021. 85  “Kizito Mihigo: The Rwandan gospel singer who died in a police cell,” BBC World News, February 29, 2020, www.bbc.co.uk/news/world-africa-51667168, accessed August 20, 2021.

316 

E. JESSEE AND D. MWAMBARI

Ingabire returned to Rwanda in January 2010, after having spent much of her adult life living in The Netherlands, with the goal of unifying Rwanda’s fledgling political opposition within a new opposition party— Forces démocratiques unifiées (FDU-Inkingi)—that sought to challenge the RPF’s domination of the government. Upon arriving, she gave a speech at the KGM during which she stated: If you look around you realize that there is no real political policy to help Rwandans achieve reconciliation. For example, if we look at this memorial, it only stops at people who died during the Tutsi genocide. It does not look at the other side—at the Hutus who died during the genocide. Hutus who lost their people are also sad and they think about their lost ones and wonder, “When will our dead ones be remembered?”86

With these comments, Ingabire transgressed the amplified silence related to RPF-perpetrated atrocities and challenged recent official commemorations’ privileging of Tutsi victims of the genocide, while obscuring those Hutu and Twa civilians whom the Hutu Power extremists murdered for resisting the genocide or rescuing Tutsi during the genocide, among other complicating factors.87

86  Victoire Ingabire, “Unity and reconciliation speech at Gisozi Genocide Memorial Centre,” 2010, www.victoire-ingabire.com/Eng/victoires-quotes/, accessed August 21, 2021. 87  There is a growing body of literature that highlights acts of rescue and resistance during the genocide (see, for example, Jennie E.  Burnet, “Cultivating Empathy and Coexistence Testimony about Rescue in the Rwandan Genocide,” Coexistence in the Aftermath of Mass Violence: Imagination, Empathy, and Resilience, eds. E. Zucker and L. McGrew (Ann Arbor: Michigan UP, 2020) 125–148; Paul Conway, “Righteous Hutus: Can stories of courageous rescuers help in Rwanda’s reconciliation process?” International Journal of Sociology and Anthropology 3.7 (2011): 217–223; Nicole Fox and Hollie Nyseth Brehm, “’I Decided to Save Them’: Factors That Shaped Participation in Rescue Efforts during Genocide in Rwanda,” Social Forces 96.4 (2018) 1625–1648), as well as the possibility of Rwandans simultaneously acting as killers and rescuers, among other complicating experiences of the genocide (see, for example, Giorgia Donà, “’Situated Bystandership’ During and After the Rwandan Genocide,” Journal of Genocide Research 20.1 (2018): 1–19; Lee Ann Fujii, “Rescuers and killer-rescuers during the Rwanda genocide: Rethinking standard categories of analysis,” Resisting Genocide: The Multiple Forms of Rescue, eds. J. Sémelin, C. Andrieu, and S. Gensburger (Oxford: Oxford UP, 2011): 145–157; Erin Jessee, “On the margins: Role-shifting in atrocity crimes,” The Oxford Handbook on Atrocity Crimes, eds. B.  Holá, H. Nyseth Brehm, and M. Weerdesteijn (Oxford: Oxford UP, 2021).

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

317

Her comments were thus interpreted by the Rwandan government as promoting genocide ideology and ethnic divisionism, and minimizing the genocide. She was arrested on these charges on 14 October 2010, prompting international human rights organizations to condemn the Rwandan government for undermining genuine political opposition and freedom of expression in Rwanda.88 Ingabire’s subsequent trial, conviction, and sentencing raised further concerns among international observers about her right to the presumption of innocence, given the hostility, anger, and disrespect that the judges displayed in their interactions with Ingabire during proceedings, as well as the court’s failure to properly investigate the circumstances under which the confessions that were used by the prosecution to build their case against Ingabire had been obtained.89 She subsequently brought a complaint before the African Court on Human and People’s Rights, and in 2017, the court found that Rwanda had violated her right to freedom of expression as defined in the African Charter and the International Covenant on Civil and Political Rights.90 Perhaps in response to this judgment, Ingabire’s sentence was commuted on 14 September 2018, as part of the 2000 presidential pardons that also made Mihigo’s release from prison possible.91 Since her release, Ingabire has remained in Rwanda and continues to critique the Rwandan government for its alleged human rights abuses and 88  See, for example, “Justice in jeopardy: The first instance trial of Victoire Ingabire,” Amnesty International, March 25, 2013, www.amnesty.org/en/documents/ afr47/001/2013/en/, accessed August 21, 2021; Human Rights Watch. (2012). “Rwanda: Eight-year sentence for opposition leader,” Human Rights Watch, October 30, 2012, 26, www.hrw.org/news/2012/10/30/rwanda-eight-year-sentence-opposition-leader, accessed August 21, 2021. 89  “Rwanda: Safer to stay silent: The chilling effect of Rwanda’s laws on ‘genocide ideology’ and ‘sectarianism’,” Amnesty International, August 31, 2010, www.amnesty.org/ download/Documents/36000/afr470052010en.pdf, accessed August 21, 2021. 90  “African court holds Rwanda violated Victoire Ingabire’s Freedom of Expression,” International Justice Resource Center, December 12, 2017, ijrcenter.org/2017/12/12/ african-court-holds-rwanda-violated-victoire-ingabires-freedom-of-expression/, accessed August 21, 2021; Sylvie Namwase, “Inclusive dialogue, freedom of speech in Rwanda and the milestone decision of the African Court in the matter of Victoire Ingabire v. Republic of Rwanda,” African Human Rights Yearbook 2 (2018): 487–508, www.pulp.up.ac.za/ images/pulp/books/journals/AHRY_2018/Namwase%202018.pdf, accessed August 21, 2021. 91  “Victoire Ingabire: Rwanda frees 2,000 people including opposition figure,” BBC World News, September 15, 2018, www.bbc.co.uk/news/world-africa-45532922, accessed August 21, 2021.

318 

E. JESSEE AND D. MWAMBARI

related violations of people’s civil liberties in the present under the auspices of her new political party, Development and Liberty for All (DALFA-­ Umurinzi). Most notably, in September 2019, Ingabire used her growing platform as a former “prisoner of conscience” to bring to the attention of international media the murder of two high-level members of FDU-­ Inkingi: Anselme Mutuyimana, the president of FDU-Inkingi, who was found strangled to death on 9 March; and Sylidio Dusabumuremyi, the FDU-Inkingi’s national coordinator, who was stabbed to death on 23 September.92 She claimed that the Rwandan government killed Mutuyimana and Dusabumuremyi, and attacked other members of FDU-­ Inkingi to intimidate Rwandans from rallying behind the opposition party. She argued that these official attacks were part of a broader plan among officials to prevent FDU-Inkingi from winning official recognition and being able to challenge Kagame and the RPF in future elections: allegations that the Rwandan government denies.93 Perhaps in response, Ingabire came under renewed investigation by the RIB in June 2020, following allegations that she was using her political activities as a cover for carrying out criminal activities, “including recruiting and operating armed terrorist groups” in the neighboring Democratic Republic of Congo.94 This latest investigation is ongoing, but it seems that despite the successful application of Rwanda’s memory laws to prosecute Ingabire, they have proven insufficient for silencing her criticism of the government. Thus, it seems plausible that the escalation of the state’s allegations against Ingabire to include more serious terrorism-related charges may be a reaction to the perceived limitations of Rwanda’s memory laws for effectively silencing Rwanda’s more determined internal critics. 92  “Rwanda: Opposition Politician Found Dead,” Amnesty International, March 18, 2019, www.amnesty.org/en/documents/afr47/0063/2019/en/, accessed August 21, 2021; “Rwanda: Ensure justice for opposition politician stabbed to death,” Amnesty International, September 24, 2019, www.amnesty.org/en/latest/news/2019/09/rwanda-ensure-justice-­ for-opposition-politician-stabbed-to-death/, accessed August 21, 2021; Victoire Ingabire, Between 4 walls of the 1930 prison: Memoirs of a Rwandan Prisoner of Conscience (CreateSpace, 2017). 93  Jason Burke, “Rwanda’s opposition leader says ally’s killing was an act of intimidation,” The Guardian, September 25, 2019, www.theguardian.com/world/2019/sep/25/rwanda-­ opposition-­leader-victoire-ingabire-ally-killing-act-intimidation, accessed August 21, 2021. 94  “Of Ingabire’s Criminal Activities and Biased Rights Watchdogs,” KT Press, June 15, 2020, www.ktpress.rw/2020/06/of-ingabires-criminal-activities-and-biased-rights-­ watchdogs/. See also, “Victoire Ingabire: Wolf in sheep’s clothing,” The New Times, June 15, 2021, www.newtimes.co.rw/opinions/editorial-victoire-ingabire-wolf-sheeps-clothing, accessed August 21, 2021.

12  MEMORY LAW AND THE DUTY TO REMEMBER THE “1994 GENOCIDE… 

319

Conclusion In this chapter, we have identified three key phases in the evolution of Rwanda’s memory laws related to the genocide, which demonstrated their increased politicization in tandem with the Rwandan government’s efforts to consolidate power in part by establishing and reinforcing an official history of “the 1994 genocide against the Tutsi.” In particular, these memory laws became more strictly enforced by the government after Bizimungu resigned, along with other Rwandan politicians whose diverse perspectives on the past necessitated their removal, from the government’s perspective, during the 2000 purge. As sites, rituals, and ceremonies associated with Kwibuka have evolved amid an at-times fragile political context, the associated memory laws have been used to guard the official history related to the genocide within Rwanda, and are now starting to influential international laws and procedures related to prohibiting genocide denial and related violations. However, the Rwandan government has also at times relied on other criminal charges to reinforce adherence to its official history of the “1994 genocide against the Tutsi”: most notably, terrorism-­ related charges. Meanwhile, the resulting internationalization of Rwanda’s official narrative is occurring despite the widespread publicity that has surrounded the cases of Kizito Mihigo and Victoire Ingabire, which in different ways demonstrate the potential dangers faced by Rwandans who are perceived as publicly challenging this official history. Thus, as Rwanda’s memory laws continue to evolve, scholars and policymakers will have to grapple with questions that are arising around Rwanda’s increasingly politicized memory laws as they have influenced law-making and interpretation at the United Nations, and in nations like France and Belgium, related to universal anti-genocide laws designed to prohibit Holocaust denial and hate crimes resulting from racism and xenophobia. What will this mean for other atrocity crimes committed and not recognized as genocide in Rwanda and the African Great Lakes region, more broadly? Is there a need to persecute these crimes against humanity and war crimes in East African or African Union human rights courts or via the International Criminal Court? Or might Rwanda’s memory laws one day be relaxed to allow for more internal debates on other versions of the pasts and “crimes not called the Genocide” as Mihigo poetically phrased it in one of his songs?

Index1

A Adalah-The Legal Center for Arab Minority Rights in Israel, 219, 279 Áder, János, 253 Aegis Trust, 304 African Court on Human and People’s Rights, 317 Agamben, Giorgio, 6 Agora International Human Rights Group, 144 Aleknaitė-Abramikienė, Vilija, 180 Algerian war, 28–29, 34–35, 38–39 Amnesty International, 307, 315, 317, 318 Amnesty laws French, 31–32 Latin American, 50 Spanish, 48–53, 62, 64, 71 Amnistía Internacional España, 68–70 Antall, József, 256 Anti-hate speech laws, 172–174 Antipolonism, 92–94

Anti-Semitism as anti-Western propaganda, 143–144 communism and, 143 in Eastern Europe, 141 in France, 4, 34, 43 in Poland, 82–83, 90–92, 204 in Russia, 150 Arad, Uzi, 286 Argentina National Commission on the Disappearance of Persons (CONADEP), 17 Querella Argentina, 64 Armenian genocide French recognition of, 26, 28, 35–36, 40–42 Russian recognition of, 158–159 Turkish denial of, 13, 36, 132n2, 169, 196n1 Association for Civil Rights in Israel, 219 Association for the Recovery of Historical Memory (ARMH), 54

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s), under exclusive license to Springer Nature Switzerland AG 2022 E. Barkan, A. Lang (eds.), Memory Laws and Historical Justice, https://doi.org/10.1007/978-3-030-94914-3

321

322 

INDEX

Auerbach, Uri, 285 Auschwitz concentration camp, 6, 84–87, 147, 151, 152 Awami League, 15 B Badinter, Robert, 41 Balkan Wars, 10, 225–232, 247–250 See also Bosnia and Herzegovina; Croatia; Serbia; Yugoslavia Baltic States, 174–177 See also Estonia; Latvia; Lithuania Bandera, Stepan, 109–110, 156 Bangladesh, Liberation War Denial Crimes Act (2016), 14 Barkan, Elazar, 1–21 Bartov, Omer, 13, 14, 195–221 Basharat, Oudeh, 282 Basque Country, 53n13, 65 Bastrykin, Aleksandr, 162 Bauer, Yehuda, 93 Beinisch, Dorit, 220 Belgium, criminalization of Rwandan genocide denial in, 310 Bergman, David, 15 Berman, Jakub, 80–81 Bernhard, Michael, 103, 130 Biszku, Béla, 265–268 Bizimungu, Augustin, 294–298 Blagin, Anton, 146 Blair, Tony, 307 Bolshevik revolution, 117, 150 Bondarchuk, Fyodor, 150 Bosnia and Herzegovina Croatian denialism of Bosnian war, 236 ethnic cleansing by Chetniks, 227 Srebrenica genocide, 232, 241–242 Braham, Randolph L., 76 Brezhnev, Leonid, 148

Buchenwald concentration camp, 152 Burnet, Jeannie, 308 C Calvo, Carmen, 67 Carpentras Jewish cemetery desecration, 4, 34 Carr, E.H., 250 Chile Law of Historical Memory (2007), 16 Museum of Memory and Human Rights, 18 Chirac, Jacques, 38 Chukhray, Pavel, 154 Clausewitz, Carl von, 225 Clinton, Bill, 307 Cold Tango (film), 154 Cold War, expansion of nationalism following, 11 Colombia National Center for Historical Memory, 18, 42 National Museum of Memory, 18 “Comité de vigilance des usages historiques de l’histoire” (CVUH), 30 Commemoration in France, 43 Israeli criminalization of, 276 memory laws as, 2 as “memory patches” in Poland, 84–86 by non-governmental organizations, 17–18 in Russia, 148–156 in Rwanda, 293, 296–300, 306, 308–311, 319 Communism and anti-Semitism, 143 and cultures of remembrance, 103

 INDEX 

Hungarian “communist crimes” law, 252, 265–273 Judeo-communism myth, 150, 217 in Poland, 80–81 post-communist memory laws, 172 post-communist transitional justice, 123–127 Prague Declaration on European Conscious and Communism, 135 in Yugoslavia, 230–231, 247 See also De-communization laws Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968), 28, 266 Crimea annexation, 98, 104, 113, 122, 141, 147, 149, 160, 186, 199 Crimes against humanity in French penal code, 28 slavery as, 29–30, 36–38, 44 in Spanish Civil War, 55–56 Croatia Bleiburg narratives, 244–245 Constitution, 233–234 Croatian Democratic Union, 237 Day of Remembrance of Croatian Victims in the Struggle for Freedom and Independence, 244–245 Declaration of the Homeland War (2000), 234–237 Declaration on Operation Storm (2006), 234, 237–239 Declaration on the Condemnation of the Court Trial and Verdict against Cardinal Dr. Alojzije Stepinac, 244 denialism of Bosnian war, 236 ethnic cleansing by Chetniks, 227 memory war with Serbia, 235–236

323

Social Democrats, 234, 239 Ustasha, 232, 239, 244 WWII revisionism, 243–245 Czech Republic de-communization laws, 172 Czerwinski, Jerzy, 91 D Dawidowicz, Lucy, 79 De Baets, Antoon, 106 De-communization laws Czech Republic, 172 European, 173–174 Latvian, 183–187, 190–191 Polish, 105, 172 Ukrainian, 97, 102, 112–121, 128–130, 132n2, 169, 205 Deflective negationism, 76–77, 90, 169 De Grieff, Pablo, 64, 249 Degtyaryov, Mikhail, 157 Demon of the Revolution (television series), 150 Denialism Armenian genocide, 13, 36, 132n2, 169, 196n1 French legislation, 3–5, 33–34, 40–41 Holocaust, 3–7, 11, 143–147, 171 in Hungary, 258, 305–308 in Israel, 207–211 Latvian negationism legislation, 183–191 Lithuanian negationism legislation, 178–183 memory laws as criminalizing, 2–3 Polish legislation, 200–204, 207–208, 216–217 Rwandan genocide, 14, 310 Ukrainian legislation, 207–209, 216–217 See also Negationism

324 

INDEX

Denial of Violence (Gocek), 13 Dink, Hrant, 12 Dobrynin, Konstantin, 140, 158 Dubin, Boris, 153–154 Duda, Andrzej, 202 Dusabumuremyi, Sylidio, 318 E Eastern Europe anti-Semitism in, 141 Baltic memory laws, 174–177 cultures of remembrance in, 103 memory wars, 134–135, 138, 148, 161–162, 177 WWII national memories, 7 Edict of Nantes (1598), 31 Eichmann, Adolf, 210, 213–214 El Salvador, Truth and Reconciliation Commission (TRC), 17 Engelking, Barbara, 8–9 Estonia lack of punitive memory laws in, 175 Russian conflict with, 135 Ethics, as informing memory laws, 6–7 European Council Framework Decision (2008), 136 European Court of Human Rights (ECtHR), 159, 176, 265, 270–272 European Union, Framework Decision on Combating Racism and Xenophobia (2008), 9, 39–41, 168, 171–175, 183, 185, 190 F Fáber, Károly, 269, 271–272 Fam, Konstantin, 154 Faurisson, Robert, 143 Federation of Jewish Communities in Russia, 135

Feldman, Oleksandr, 111n39 Fernández de la Vega, María Teresa, 58 Ferrándiz, Francisco, 62, 63 First Amendment speech protections, 19–20 Forum for Memory (FpM), 54–55 Framework Decision on Combating Racism and Xenophobia (2008), 9, 39–41, 168, 171–175, 183, 185, 190 France Algerian war, 28–29, 34–35 anti-Semitism in, 6, 34, 43 Armenian genocide recognition, 26, 35–36, 40–42 collective memory removal and amnesty laws, 31–32 colonialism law, 10n15 commemorations in, 43 Edict of Nantes (1598), 31 Français rapatriés Act (2005), 28, 30–31, 38–39 Gayssot Law (1990), 3–6, 33–34, 40–41, 134 legal system in, 27–28 Liberté pour l’Histoire, 31, 35, 40 Republican crimes against Vendeans, 25–27 Rwandan genocide recognition, 42, 310–311 Taubira Law (2001), 26, 29–30, 36–38, 41 transitional vs. belated memory laws, 42–44 Franco, Francisco, 16, 42, 46–47, 49, 52, 55, 61 Fratanoló, János, 268–271 Freedom of speech and expression anti-hate speech laws, 172–174 Hungarian sanctions against totalitarian symbols, 268–273

 INDEX 

punitive memory laws and, 171, 189–190 Rwandan “genocide ideology” law, 307–308 in Ukraine, 121–123 in United States, 19 Friedman, Lawrence M., 47n3 Frolov, Leonid, 197 G Gabai, Zvi, 288 Gamliel, Gila, 286 Gaon Jewish Museum, 182 Garzón, Baltasar, 57 Gayssot, Jean-Claude, 33 Gayssot Law (1990), 3–6, 33–34, 40–41, 134 Geneva Convention (1949), 10, 27 Genocide Armenian, 13, 26, 28, 35–36, 40–42, 158–159 in French penal code, 27–28 Holodomor, 99, 100, 102, 109–112, 118, 184, 196–199 in Latvian criminal code, 184 in Lithuanian criminal code, 176 Seicher’s concept of, 26 Srebrenica, 232, 241–243 See also Holocaust; Rwanda Genocide and Resistance Research Institute, 81 Genocide Convention (1948), 10, 36, 292 Georgia, Russian conflict with, 135 Germany, emergence of memory laws in relation to Holocaust, 10, 11 Gilmans, Alexandrs, 188, 191 Gocek, Fatma Muge, 13 Golob, Stephanie, 16, 45–72 Gorbachev, Mikhail, 133, 148, 149, 175 Goth, Amon, 86

325

Grabowski, Jan, 8–9, 75–95 Graf, Jürgen, 143 Gross, Jan T., 91, 203 Guatemala, Truth and Reconciliation Commission (TRC), 17 Gudkov, Dmitry, 158 Gutman, Yifat, 13, 275–289 H Habyarimana, Juvénal, 292n3, 294–299 Halevy, Benjamin, 211–214 Harwood, Richard, 143 Hatfield, Charles, 17 Hayner, Priscilla, 264 Herzog, Isaac, 282 Historical dialogue, 20–21 Historical Memory Foundation, 141, 147 Historical redress, 35 History education, 250 Hitler, Adolf, 55, 77, 79, 164, 175, 180, 246 Holocaust deflection, 90 denial and emergence of memory laws, 3–7, 11, 171 and European identity, 7–8 French Gayssot Law against denial of, 3–5, 33–34 Holocaust envy phenomenon, 81 Israel and, 197–200, 213–215 Polish enablers and facilitators of, 79–81 relativization of, 76–77 Ukraine’s legislation against denial of, 111 Holocaust Memorial Synagogue, 135 Holodomor, 99, 100, 109–112, 115, 118, 124, 184, 196–198, 200 Human rights movement, 10–11 universalist ideas of, 59–60

326 

INDEX

Human Rights Watch, 308 Hungary Committee of National Remembrance, 251–252, 259–265, 267, 273 communism in, 258–259 “communist crimes” law, 252, 265–273 Constitution, 251, 254–258, 272–273 Day of National Togetherness, 252–254 denialism in, 258 emergence of memory laws in relation to Holocaust, 8–10 FIDESZ, 252–253, 265 FIDESZ-KDNP, 254–255 Fundamental Law (2011), 254–260, 272–273 Holocaust relativism, 258 Hungarian Civil Liberties Union (HCLU), 263 Hungarian Socialist Party (MSZP), 253, 259, 269 Hungarian Socialist Workers’ Party, 258–259 Lex Biszku, 266–268 “National Consultation,” 255–257 National Socialism, 252, 258, 265, 268, 272 1956-Institute Foundation, 261–263 Oral History Archive (OHA), 262 totalitarian symbols sanctions, 268–273 Treaty of Trianon, 252–254, 256 Veritas Historical Research Institute, 262–263 I Ibarra, Mario, 298 Ibreck, Rachel, 308

Ibuka, 302, 310 Infante, Blas, 52n12 Ingabire, Victoire, 294, 311, 315–318 Ingelaere, Bert, 303–304 Institute for National Remembrance (Ukraine), 110, 117, 118, 121, 129, 162 Institute of National Memory, 101 Institute of National Remembrance (Poland), 81–83, 86–87, 91, 105, 201n12, 207n24, 260n19 International Court of Justice, 232, 241–242 International Criminal Tribunal for Rwanda (ICTR), 295n8 International Criminal Tribunal for the former Yugoslavia (ICTY), 232–238 International Holocaust Remembrance Day, 151–152 International Military Tribunal, 28, 33, 39, 41, 142 Interregional Holocaust Federation, 135 Israel Budget Principles Law (1985), 278 denialism legislation, 207–208 denials of, 209–211 emergence of memory laws in relation to Holocaust, 14 Holocaust and, 197–200, 213–215 Israeli Defense Forces (IDF), 212 “Jewish Nakba Law” (2014), 276, 284–289 Kafr Qasim massacre, 211–212 Mizrahi Jewish experience, 285–289 “Nakba Law” (2011), 13, 218–221, 275–289 on Polish Holocaust Law, 92–94 “Protective Edge” operation, 212–213 reluctance to recognize Holodomor as genocide, 197–200 Russian relations, 148, 197

 INDEX 

War of Independence (1948), 209–211, 215, 217–218, 278, 280 and Warsaw Ghetto Uprising memories, 210–211 Itzik, Daliah, 197 Izborsk Club, 144 J Japan, use of Korean “comfort women” during WWII, 15–16 Jasenovac concentration camp, 227 Jessee, Erin, 14, 291–319 Jewish Museum and Tolerance Center, 153 “Jewish Nakba Law” (2014), 276, 284–289 Jospin, Lionel, 38 Jović, Dejan, 234 Juan Carlos, 53 Juridification of memory, 76–77 Jus cogens principle, 55, 62 Justice to Jews from Arab Countries (JJAC), 288 K Kagame, Paul, 14, 294, 301–303, 307, 318 Kahlon, Moshe, 289 Kalniete, Sandra, 184 Kanamugire, Louis, 298 Kanziga, Agathe, 295n8 Karski, Jan, 83 Kasianov, Georgi, 105, 107, 122 Kasztner, Rudolf Israel, 213–214 Kavaleridze, Ivan, 117 Kayibanda, Grégoire, 298–299 Khabensky, Konstantin, 150, 154 Khapaeva, Dina, 160 Khmelnitsky, Bohdan, 198 Khrushchev, Nikita, 148

327

Kigali Genocide Memorial (KGM), 304–305, 316 Kirov, Sergei, 117 Kirs, Eszter, 9, 251–273 Klarsfeld, Arno, 5 Klymenko, Lina, 121 Konev, Ivan, 162 Koposov, Nikolay, 6, 10, 11, 104–106, 108, 131–165, 171, 176, 179, 188, 191, 201 Korea, Japanese prejudice towards, 15–16 Koren, Snježana, 237, 239, 244 Kosovo, 240–241 Kövér, László, 253 Kravchuk, Leonid, 108, 110 Kubik, Jan, 130 Kuchma, Leonid, 108, 109 Kunyaev, Stanislav, 143 L La Comuna Presxs del Franquismo, 54 Lang, Ariella, 1–21 Latin America amnesty laws, 51 commemoration by non-­ governmental organizations, 17–19 truth and reconciliation commissions, 16–17 Latvia denialism cases, 188–189 emergence of memory laws in relation to Holocaust, 9 Harmony Centre, 185, 187 Nazi collaboration, 177 negationism legislation, 183–187, 190–191 Law of Democratic Memory (2020), 68–71 Law of Historical Memory (2007), 16, 48, 58–64, 67, 70

328 

INDEX

Law of Political Responsibilities (1939), 52 Legal culture, 47n3 Legal remembering, 48 Le Monde, 4, 5 Lenin, Vladimir, 150 Le Pen, Jean-Marie, 38 Lévy, Christine, 15 Levy, Daniel, 6 Liberation War Denial Crimes Act (2016), 14 Lithuania denialism cases, 181–183 emergence of memory laws in relation to Holocaust, 8–9 Genocide and Resistance Research Institute, 81 genocide legislation, 176 Nazi collaboration, 177 negationism legislation, 168–170, 178–181, 190–193 post-Soviet independence, 101, 103–104 WWII experience, 82 Llosa, Mario Vargas, 18 Louis XVIII, 32 Luzgin, Vladimir, 145–146 Luzhkov, Yuri, 136 Lyashko, Oleh, 113 Lyubshin, Ivan, 146 M Majoritarianism, use of memory laws in, 12–16 Mälksoo, Maria, 123 Martínez López, Fernando, 67, 68 Masiulis, Kęstutis, 182 Matveev, Vladimir, 147 Matvienko, Valentina, 153 “The Meaning of Death” (song), 314–315

Medvedev, Dmitry, 87, 107n30, 137, 140, 141, 149, 153 Memorial Society, 135, 149 Memory laws anti-liberal, 173–174 as commemoration, 2 as controlling public debate on a national past, 277 De Baets on, 106 emergence of, 3–7 ethics of, 6–7 and historical dialogue, 20–21 as imposed imperatives, 2–3 Koposov on, 106 as majoritarian onslaught, 12–16 as normalizing an official historical narrative, 32–33, 42–44, 195–196 as a political phenomenon, 2, 10, 16–19 punitive, 170–174, 189–193 purpose of, 1–2 spread of beyond Western Europe, 7–11 Mihailović, Draža, 227, 246 Mihigo, Kizito, 291–294, 312–315, 317, 319 Mikheev, Oleg, 138–139 Miller, Alex, 278, 281–282 Milošević, Slobodan, 240, 242, 245–246 Mitterrand, François, 34 Mladić, Ratko, 232 Mnemonic legislation, see Memory laws Morawiecki, Mateusz, 91–94 Moscow Anti-Fascist Center, 134, 135 Mukhin, Yury, 143–144 Multidirectional memory, 7, 17, 294 Museum of Jewish Heritage and the Holocaust, 135 Museum of Memory and Human Rights, 18

 INDEX 

Museum of the History of Polish Jews, 83–84 Mutazihana, Dr., 312–313 Mutuyimana, Anselme, 318 Mwambari, David, 14, 291–319 N Nakba, 200, 210, 217–218, 278, 289 “Nakba Law” (2011), 13, 218–221, 275–289 Nathan (activist), 281 National Center for Historical Memory, 18, 42 National Commission for the Fight Against Genocide (CNLG), 305–306, 308–309 National Commission on the Disappearance of Persons (CONADEP), 17 Nationalism, 2, 11 National memory, 81–83 National Memory Institute, 81 National Museum of Memory, 18 Nazism Russian criminalization of rehabilitation of, 137–138, 140–141 Ukrainian criminalization of, 115 Nedić, Milan, 246 Negationism deflective, 76–77, 90 Latvian, 183–187, 190–191 Lithuanian, 168–170, 178–181, 191–193 memory laws as, 171 See also Denialism Netanyahu, Benjamin, 93, 148–149, 153, 279 Newbury, Catharine, 296 Newbury, David, 296 New York Times, 1619 Project, 20

329

Night Without End (Grabowski & Engelking), 8–9 1956-Institute Foundation, 261–263 Nkubito, Alphonse-Marie, 296, 312n75 Noiriel, Gérard, 30 Non-governmental organizations, commemoration by, 17–19 Nora, Pierre, 31, 40 Nuremberg Tribunal, 88, 135, 136, 142, 145 O Obama, Barack, 137, 203 Obukhov, Sergey, 157–158 Ohayon, Shimon, 285 Oral History Archive (OHA), 262 Orbán, Viktor, 9, 254, 262, 264, 265, 270, 273 Orwell, George, 85, 95 P Paleckis, Algirdas, 182–183 Palestinian Nakba, 200, 210, 217–218, 278, 289 See also “Nakba Law” (2011) Pamuk, Orhan, 12–13 Pankevičius, Raimondas, 181–183, 192 Panteleyev, Oleg, 136 Parias, Angustias García, 52n12 Parliamentary Assembly of the Council of Europe (PACE), 112 Pechersky, Aleksandr, 154 Pérez-Perdomo, Rogelio, 47n3 Peru, Place of Memory, Tolerance, and Social Inclusion, 18 Pétré-Grenouilleau, Olivier, 29–30 Pettai, Eva-Clarita, 9, 167–193 Pinochet, Augusto, 16, 57 Place of Memory, Tolerance, and Social Inclusion, 18 Płaszów concentration camp, 85–86

330 

INDEX

Pluralism, use of memory laws in, 16 Poland accusations against Soviet Union, 164 antipolonism, 92–94 anti-Semitism in, 82–83, 90–92, 204 Auschwitz concentration camp, 6, 84–87, 147 Blue Police, 80, 82, 85–86 Civic Platform Party, 147 commemorative “memory patches,” 84–86 communism in, 80–81 de-communization laws, 105, 172 denialism legislation, 200–204, 207–208, 216–217 emergence of memory laws in relation to Holocaust, 8–9, 14, 75–77 ethnic cleansing in by Ukraine, 201, 204–206 Holocaust envy phenomenon, 77–81, 83 Holocaust Law (2018), 77, 89–95, 168–169, 202–207 Institute of National Remembrance, 81–83, 86–87, 105, 260n19 Jewish relations, 206–207 Katyn massacre, 86, 138 Kielce pogrom, 85, 92 Law and Justice party (PiS), 88, 134, 147 March of Independence (2017), 89 myth of “national innocence,” 83 Office of War Reparations, 80–81 penalizing of independent Holocaust research, 87–95 Płaszów concentration camp, 85–86 POLIN Museum, 206–207 “Righteous defense” reaction, 82–84

“Swietokrzyska” Brigade, 92 Ukrainian relations, 203–206 Warsaw devastation, 77–79 WWII experience, 81–83 Polanski, Roman, 77 Polony, Natacha, 310 Poluektova-Krimer, Ksenia, 156 Popper, Karl, 233 Porat, Dina, 93 Poroshenko, Petro, 112, 122, 129 Portalis, Jean-Etienne, 25 Portnov, Andriy, 119 Prague Declaration on European Conscious and Communism, 135 Prokhanov, Aleksandr, 143–144 Putin, Vladimir, 9, 104, 119, 122, 134–138, 140, 144, 146–153, 159–161, 164–165, 176, 180 See also Russia R Rajoy, Mariano, 64 Rashkin, Valery, 157 Rébérioux, Madeleine, 34 Refugee Convention (1951), 10 Regev, Miri, 289 Rémond, René, 31 Reparations memory laws as symbolic, 42–44 Poland’s Office of War Reparations, 80–81 for slavery, 20 Reyntjens, Filip, 302 Riabchuk, Mykola, 119–120 Right to history, 2 Right to truth, 2 Rocard, Michel, 34 Rojas, Mauricio, 18 Rothberg, Michael, 7, 17, 294 Rousso, Henry, 5, 25–44 Rubiks, Alfreds, 186–188

 INDEX 

Ruiz, Julius, 51 Russia anti-Semitism in, 150 Armenian genocide recognition, 158–159 Christian identity, 160–161 Commission Reporting to the Presidency to Counter Attempts to Falsify History to the Detriment of Russia’s Interests, 137 Communist Party of the Russian Federation (CPRF), 144, 157 Constitutional amendments, 159–163 Crimea annexation, 98, 104, 113, 122, 141, 147, 149, 160, 186, 199 criminalization of war counter-­ memories, 138, 142–146, 157–158, 162–165 cultural patriotism, 134 emergence of memory laws in relation to Holocaust, 10, 131–134 Estonian conflict, 134 Federation Council, 136, 139, 141, 153 Georgian conflict, 135 Great Patriotic War cult, 134, 135, 137, 140, 148, 163–165 Holocaust awareness, 155–156 Holocaust denial legislation, 143–147 Holocaust distortion, 155 Holocaust education, 154 Holocaust memorials and commemorations, 148–156 Holocaust remembrance, 135–136, 140–141, 147–149, 165 Investigative Committee, 162 Israeli relations, 148, 197

331

Just Russia Party, 158–159 Katyn massacre, 86, 138, 157 Liberal Democratic Party of Russia (LDPR), 144, 157 memory wars, 134–135, 148, 161–162, 177 penalizing of independent Holocaust research, 87–88 Polish accusations against, 164 post-Soviet nationalism, 143–144 rehabilitation of Nazism criminalization, 137–138, 140–141, 156, 162 Solovetsky Stone, 149, 150 Turkish relations, 158–159 Ukrainian conflict, 9, 10, 122, 156–157 United Russia, 136, 139, 140, 144 Wall of Grief, 148, 150, 151 Yarovaya Act, 140, 141, 156, 163 Zatulin Draft, 137 Russia against History (Agora International Human Rights Group), 144–145 Russian Jewish Congress (RJC), 135, 152, 154 Russian Public Opinion Research Center (VCIOM), 155–156 Russian Research and Educational Holocaust Center (REHC), 135, 141, 152, 154 Rutagengwa, Bosco, 302 Rwanda Democratic Forces for the Liberation of Rwanda (FDLR), 314 Development and Liberty for All (DALFA), 317 Draft Law on Genocide Memorials, 300 Forces démocratiques unifiées (FDU-Inkingi), 316, 318

332 

INDEX

Rwanda (cont.) French recognition of genocide in, 42, 310–311 gacaca dispute resolution mechanism, 302–304 genocide, 292, 295–296 “genocide ideology” law, 305–308 Genocide Memorial Commission, 298–299 government labeling of genocide, 309–312, 319 Hutu Power, 292, 295–296, 311, 314 Kigali Genocide Memorial (KGM), 304–305, 316 Kwibuka commemorations, 293, 299n26, 306, 308 memorials and commemorations, 304–306, 309–311, 319 memory law evolution, 294 memory laws as majoritarian repression, 12, 14 national anthem, 312 National Commission for the Fight Against Genocide (CNLG), 305–306, 308–309 National Unity and Reconciliation Commission (NURC), 300–301 Nyamagabe commemoration (1996), 299–300 Parti Democratique pour le Renouveau-Ubuyanja (PDR), 301 Rwanda Investigation Bureau (RIB), 293, 315, 318 Rwanda National Congress (RNC), 314 Rwandan Patriotic Army (RPA), 301, 304 Rwandan Patriotic Front (RPF), 292, 294–296, 301–302, 304, 312, 314, 316, 318

transitional justice in, 293 “year of tolerance” commemorations (1995), 296–298 S Sa’adi, Osama, 284 Sadovyi, Andriy, 113 Sánchez, Pedro, 66–67 Sanjurjo, José, 66n36 Sarkozy, Nicolas, 39 Schudrich, Michael, 91 Seicher, Reynald, 26 Sendler, Irena, 83, 85 Serbia Chetniks, 227, 232, 245–246 Constitution, 240–241 Declaration on Srebrenica, 241–243 failure to prevent genocide ruling, 232, 241–242 Law on the Rights of Veterans, Military Disabled Persons and Their Family Members, 246 memory war with Croatia, 235–236 nationalism in, 242–243 Partisans, 245–246 WWII revisionism, 245–246 Shafir, Michael, 90 Sharet, Moshe, 287 Sharon, Ariel, 148 Shchors, Mykola, 117 Shevel, Oxana, 103–104, 116 Shukhevych, Yuriy, 109 1619 Project, 20 Slavery as a crime against humanity, 29, 44 France’s Taubira Law (2001), 26, 29–30, 36–38 reparations for, 20 teaching about in US schools, 19–20

 INDEX 

Slovakia National Memory Institute, 81 WWII experience, 82 Sobibor (film), 154 Societal forgetting, 48, 49, 51 Solovetsky Stone, 149, 150 Soros, George, 256n9 Soviet Union Bolshevik revolution, 150 collapse of, 100 Criminal Code, 132, 142 historical narratives in, 132 Holodomor, 99, 100, 102, 109–112, 118, 184, 196–199 Molotov-Ribbentrop Pact, 142 occupation of Baltic States, 175 Ukrainian nostalgic narrative about, 103–104, 128 Ukrainian rule, 99–100 WWII national memories, 7 See also Russia Spain Amnesty Law (1977), 48, 50–54, 57, 62, 64, 71 Amnistía Internacional España report, 68–70 autonomous communities, 53n13, 65–66 Basque Country, 53n13, 65 Constitution, 48, 51, 70 criminal law tradition in, 51n9 democratic memory ministry, 67–68 “Education for Citizenship” curriculum, 58 equidistancia narrative, 48, 51–55, 57–58, 70, 71 Franco exhumation debate, 46–47 Historical Memory Law (2007), 42 judicial culture in, 57 Law of Democratic Memory (2020), 68–71 Law of Historical Memory (2007), 49, 58–64, 67, 70

333

Law of Political Responsibilities (1939), 52 legal exceptionalism, 45–49, 56, 66, 71–72 memoria histórica (MH) movement, 54–58, 62–68, 71–72 Pact of Oblivion, 16 Popular Party (PP), 53n13, 56–58, 65 post-Transition legal narratives, 54–58 privatization of memory in, 63–64 seguridad jurídica principle, 48, 51, 62–63 Socialist Party (PSOE), 50n7, 58, 63–72 Transition, 48–53 Valley of the Fallen monument, 46–47, 52, 61, 66, 68 Vox party, 57, 72 Spiegel, Boris, 139, 140, 141, 158 Spielman, Władysław, 77 Srebrenica genocide, 232, 241–243 Stalin, Joseph, 10, 102, 110, 133, 134, 142, 148, 158, 164, 175–177, 180, 197 Stan, Lavinia, 124 Stepinac, Alojzije, 244, 246 Stojanović, Dubravka, 10, 225–250 Subotinas, Jurijus, 167–168, 181 Suweid, Hanna, 281–282 Szarek, Jaroslaw, 91 Sznaider, Natan, 6 T Tadić, Boris, 241 Tate, Jahnisa, 12, 196 Taubira, Christiane, 36–38 Taubira Law (2001), 29–30, 36–38, 41 Teitel, Ruti, 62 Thälmann, Ernst, 152

334 

INDEX

Thomson, Marko Perković, 239 Tibi, Ahmad, 284 Tito, Josip Broz, 226, 227, 244–246 Toharia, José Juan, 57 Transitional justice gacaca dispute resolution mechanism, 302–304 as response to human rights violations, 2 in Rwanda, 293 Spanish Transition, 48–53 truth and reconciliation commissions, 16–17 in Ukraine, 113–114, 123–127 Tröbst, Stefan, 103 Trotsky (television series), 150 Trotsky, Leon, 150 Truth and Reconciliation Commission (TRC) (El Salvador), 17 Truth and Reconciliation Commission (TRC) (Guatemala), 17 Truth commissions characteristics of, 264 inclusion of memories by, 16–17 Turkey Penal Code, Article 301 (2005), 5–6, 12–13, 132n2, 169, 196n1 refusal to recognize Armenian genocide, 36 Russian relations, 158–159 “Twanze Gutoberwa Amateka” (song), 313 Tymoshenko, Yulia, 110, 111, 113 U Ukraine Crimea annexation, 98, 104, 113, 122, 142, 147, 149, 160, 186, 199 Day of Memory and Reconciliation, 114

de-communization laws, 97–98, 102, 112–121, 128–130, 132n2, 169, 173, 205 denialism legislation, 207–208, 216–217 Donbas conflict, 98, 104, 113, 122, 127, 128 emergence of memory laws in relation to Holocaust, 8, 9, 14 ethnic cleansing by in Poland, 201, 204–206 Europeanization, 121 freedom of speech concerns, 121–123 Great Patriotic War narrative and commemoration, 107–108, 114, 118 historical narratives, 103–104, 127–128 Holocaust denial legislation, 111 Holodomor, 99, 100, 102, 109–112, 118, 184, 196–199 Institute for National Remembrance, 110, 117, 121, 129, 162 Institute of National Memory, 101 Jewish relations, 198–199 lustration, 126 Maidan uprising, 98, 113, 125, 126, 128 memory laws post-independence, 105–112, 128 mnemonic security, 121–123 Opposition Block, 113, 116 Orange coalition, 110–111 Orange Revolution, 104, 108–109, 113, 134 Organization of Ukrainian Nationalists (OUN), 99, 109, 112, 114, 205, 216 Party of Regions, 109–113, 116

 INDEX 

penalizing of independent Holocaust research, 88 Polish relations, 204–206 political system in, 102, 127–128 as a post-colonial nation, 119–120 post-Soviet period, 100–105, 108 Russian conflict with, 9, 10, 122, 156–157 “Soviet occupation” discourse, 101–102 under Soviet rule, 99–100 transitional justice in, 123–127 transnationalization of memory, 104–105 Ukrainian Institute of National Remembrance, 81 Ukrainian Insurgent Army (UPA), 99, 100, 109, 111, 112, 114, 205, 216 WWII experience, 81–82, 99 UN Assistance Mission for Rwanda (UNAMIR), 298n22 UN Convention on the Prevention and Punishment of the Crime of Genocide, 296–297 UN General Assembly, 151, 310 Ungváry, Krisztián, 261–263 UN High Commissioner for Human Rights (UNHCHR), 302 United States, freedom of speech in, 19–20 Universal Declaration of Human Rights (1948), 10 UN Office of the High Commissioner for Human Rights in Rwanda, 298 Uwilingiyimana, Agathe, 297 V Vasilyev, Dmitry, 144 Venice Commission, 122, 126, 255n6 Veritas Historical Research Institute, 262–263

335

Viatrovych, Volodymyr, 118–119, 122 Vidal, Claudine, 297–299 Vidal-Naquet, Pierre, 34 Vietnam memorial, 207–208 Vladimir, Prince, 160 Volhynia massacre, 99, 203–206 W Wall of Grief, 148, 150 War Against the Jews (Dawidowicz), 79 Wendel, Delia, 300 Witnesses (film), 154 World Jewish Congress, 288 World Organization of Jews from Arab Countries (WOJAC), 288 World Without Nazism, 140, 147 Y Yad Vashem, 93, 197, 199–200, 215 Yampolskaya, Elena, 163–165 Yanukovych, Viktor, 102, 108, 111–112, 125–126 Yarovaya, Irina, 139, 140, 163 Yatsenyuk, Arseniy, 113 Yeltsin, Boris, 133–135, 143, 148 Yugoslavia anti-antifascism in, 231 communism in, 230–231, 247 failure of memory laws in, 247–250 Partisan fighters, 226–228, 245 Tito’s memory laws, 227–229, 231 WWII conflicting narratives, 229–232, 247–248 WWII experience, 226–227 WWII victim identity, 228–229 Yugoslav People’s Army, 235–236 Yurchuk, Yulia, 120 Yushchenko, Viktor, 105, 108–113, 196–197 Yushkov, Roman, 146–147

336 

INDEX

Z Zalewska, Anna, 91 Zamir, Levana, 287 Zapatero, José Luis Rodríguez, 58 Zatulin, Konstantin, 137, 140 Zeev, Nissim, 285 Zelenskyi, Volodymyr, 129–130 Zelsburg, Igor, 155

Zhirinovsky, Vladimir, 144 Zhukov, Georgy, 117, 128 Zhurzhenko, Tatiana, 9, 97–130 Žilinska, Justinas, 179 Zochrot, 281 Zolochevsky, Vitaly, 157 Zündel, Ernst, 143 Zybertowicz, A., 90–91