By Tsjalling Wierdsma, Master Student on Heritage and Memory Studies, University of Amsterdam. Scholar on practice at EUROM (2018).
The volume Law and Memory: Towards Legal Governance of History (2017), edited by Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias, integrates various accounts by both lawyers and non-lawyers and approaches memory laws as a phenomenon of global law and transitional justice. The volume hereby aims to offer an alternative to legal approaches to memory laws, which as the editors contend, often focus on geographically limited laws and judgments. The global approach is further reflected in the four parts of the book, which focus on International Law, European Law (Council of Europe and the European Union), National Perspectives within the European Union, and Perspectives beyond the European Union.
This broad scope of perspectives enables the volume to focus on the ways international, supranational, and national memory laws intersect and interact with each other. Chapters by Klymenko and Carrasco, for example, draw attention to the invocation of European Holocaust denial legislation by legislators in Ukraine and Peru as a means of legitimizing their own, often fundamentally divergent, memory laws. These examples stress not merely the importance of studying memory laws beyond a national perspective, but also the (authoritative) narratives of previous memory laws. Concerning the transnational character of these memory laws, Kahn’s chapter titled Banning Genocide Denial – Should Geography Matter? is particularly eye-opening. Kahn questions the nexus argument applied by the European Court of Human Rights (ECHR) in the Perinçek case, where the Swiss ban on the denial of the Armenian Genocide was seen as violating the protection of freedom of expression in article 10. The ECHR maintained that there was only a tenuous connection between Switzerland and the Armenian genocide and thus differed from Holocaust bans in states that were involved in the commission of the Nazi horrors. Kahn questions these arguments and asks if it is logical to require a nexus between the state enacting the ban and the historical ban being denied?
These are questions we should consider when discussing the form memory laws should take, especially when taking into account the many misgivings surrounding the concept of memory laws and the various critical questions surrounding their relationship with freedom of expression, academic freedom, and their potential imposition of “truths” on both the past and present. These concerns are highlighted by Cajani, who discusses the objections of historians to the European Union’s adoption of the Framework Decision on Combating Certain Forms and Expressions of Racism and Xenophobia by Criminal Law as restricting freedom of expression and academic research, Aksenova who focuses on the performative role played by the International Criminal Tribunal as communicating a certain narrative of historical “truth” and making value judgements about history, and Přibáň who states that Czech memory laws inhibited, instead of opened up, public discussion about the totalitarian past, its impact, and the responsibility of its perpetrators.
All in all, the volume does not argue for the abolishment of memory laws, but raises questions, urging for the necessity to be critical of memory laws and especially their form. By pointing to various non-regulatory measures, the volume at moments begs the question if the punitive format is necessary or even productive, and highlights the necessity to, depending on context, consider alternatives.