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This article was written by Emīlija Branda. Emīlija is a lawyer and a human rights activist from Latvia. She holds a bachelor’s degree from the University of Latvia and is currently a student in the master’s program International Human Rights Law at Lund University.
Certain historical events and narratives possess the means of impacting the domestic laws of states. Historical narratives are crucial for shaping and guiding the public opinion and societal, perhaps even national, and protected values. These laws are memory laws, encompassing a legal interplay between the past, the present and the future of a society.
What are Memory Laws?
The Council of Europe has characterized memory laws as enshrining state-approved interpretation of crucial historical events and promote certain narratives about the past by banning, for example, propagation of totalitarian ideologies or criminalizing expressions which deny, grossly minimize, approve or justify acts constituting genocide or crimes against humanity as defined by international law. Moreover, memory laws could be hate speech laws, memorial days or laws making institutions for housing historical records such as museums or archives. Earliest forms of memory laws were aimed to protect the objective truth about victim groups and history. For example, in 1985 West Germany criminalized Holocaust denial and many states followed suit.
Memory Laws and Human Rights
Currently, the case-law of the European Court of Human Rights, impacting 46 states, has established that denial or revision of clearly established historical facts, such as the Holocaust, do not fall under the protection of the European Convention of Human Rights.
For instance, in the case Garaudy v France (2003) the applicant was an author of a book called “The Founding Myths of Modern Israel” and criminal proceedings were instigated against the applicant on the basis of denial of crimes against humanity, defamation in public of a group of persons (the Jewish community) and incitement to racial hatred. Therefore, the applicant complained of violation of his freedom of speech. The European Court of Human Rights held that the applicant’s book had disputed the existence of clearly established historical facts and accused the victims of falsifying history. Such acts were not compatible with the fundamental values of the European Convention on Human Rights, hence, this case was deemed inadmissible on the ground of abuse of rights.
A similar decision was held in the case M’Bala M’Bala v France (2015) where, following a conviction of a comedian known for insulting persons of Jewish origin or faith, resulted in a decision of inadmissibility based on abuse of rights.
Therefore, it has been strongly established that Holocaust denial is to be considered an abuse of rights in accordance with article 17, aimed at prohibiting that persons rely on the European Convention on Human Rights to conduct activities to destroy those very same rights. Furthermore, Holocaust denial has gained the “guillotine effect” – a term used to describe a categorical exclusion of a certain expression from the protection of the European Convention on Human Rights.
However, in the European Court of Human Rights the expression “clearly established historical facts” is still ambiguous as no clear explanation was given on how the Court concludes which historical facts are to be deemed “clearly established”. This question will prove itself to be important as we move through a time of information bubbles and the internet allowing for disinformation campaigns to be on the rise. While memory laws have historically emerged as the safeguard of the truth of the victims, more recently the concept of memory laws has been used by states for non-democratic purposes. A recent example of this non-democratic use is the Russian parliament banning comparisons between the Soviet regime and Nazi Germany during World War II or the law on punishment of “Rehabilitation of Nazism” – both used as a tool to control public discourse and limit critical perspectives.
Conclusion
Memory laws can influence the public opinion and they serve as a legal instrument capable of enforcing and penalizing certain behavior based on historical narratives. In times of manipulated narratives and distorted history, the internet has added a layer of complexity. The Russian example highlights the shift from protecting the truth to suppressing dissent, giving rise to human rights violations, particularly, freedom of expression. For that, it is crucial to protect both: human rights of individuals and the objective truth of history, especially that of the victims. Both can be done: the dual commitment requires not only legal scrutiny but that of other disciplines as well; the evolution of memory laws must be guided by commitment to democracy and human rights.
Sources:
Council of Europe. Factsheet “Memory Laws and Freedom of Expression”.
The New York Times. The War on History is a War on Democracy.
The European Court of Human Rights. Garaudy v. France.
The European Court of Human Rights. M’Bala M’Bala v. France.
Yifat Gutman. Memory Laws: An Escalation in Minority Exclusion or a Testimony to the Limits of State Power? Law & Society Review Vol. 50, No. 3, pp. 575-607.
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