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Conference reports Okategoriserade Legislating Memory: From Memory Laws to Transitional Justice

Two panels on memory laws were arranged the same day as part of the annual series of on USSR 30 years after (1991-2021). The panel “Dealing with the totalitarian past: Laws on memory and legislation” took up how different countries have approached the Soviet past in legislation and by “memory laws”. The panel “Memory laws: an interregional perspective on commemoration and legislation” followed this theme up. An aspect discussed throughout the whole event was the Western vs. Eastern models of memory laws.

Published on balticworlds.com on June 13, 2021

Regulating the writing of history by introducing memory laws is a trend that has grown in scale during recent decades after the dissolution of the USSR, and of course in the aftermath of WWII. The legal and legislative regulation of memory can be realized at transnational, national, and local levels, and its impact might also concern individuals – victims, perpetrators, war veterans, their relatives and so on. The legislative aspect can act out within a broad range of areas derived from international humanitarian laws to the use of criminal law as a punitive instrument of state; from transitional justice and judicial practices to the legal definition of victim/perpetrator status; from post-conflict reparations to legislation concerning the rehabilitation of victims and war veterans. It can relate to dealing with the legacies of authoritarian regimes, and to memory regulations within post-conflict, post-war and post-genocide contexts. All those different perspectives were discussed, explored and compared by researchers who took part in two round table meetings on April 21, 2021.The two consecutive events concerning memory laws and legislation were both part of the CBEES series “1991-2021: Thirty Years After”. The first, the round table “Dealing with the Totalitarian Past: Laws on Memory and Legislation”, was arranged by Yuliya Yurchuk and Florence Fröhlig. Speakers at the event included Maria Mälksoo from University of Kent; Andrii Nekoliak from Tartu University; Nataliya Sekretareva from Human Rights Memorial; and Felix Krawatzek from the Centre for East Europe and International Studies (ZOIS). This round table was followed by a follow-up workshop “Memory laws: an interregional perspective on commemoration and legislation” arranged by Cagla Demirel and Martin Englund. The speakers here were: Jelena Subotic from Georgia State University; Joanna Michlic from the UCL Centre for Collective Violence, Holocaust and Genocide Studies; Johanna Mannergren Selimovic from Södertörn University; and David Gaunt from Södertörn University. In this report we will present an overview of the outcome of those events that allows us to reflect on the different thought-provoking perspectives raised.

Dealing with the Totalitarian Past: Laws on Memory and Legislation

Fröhlig’s introduction to the round table looked at how the past has been overly politicized and framed to meet the needs and ends of the state and even in the interest of securing the state. This has led to several issues such as how legacies of Soviet Union have been managed in post-Soviet countries, what consequences occurred in terms of rehabilitation and liberation of victims and perpetrators, and how political demands have been reflected in legal systems. The presentations and discussions throughout the round table and the workshop revealed that most post-Soviet and post-communist states used and use memory laws and legislation in order to enforce certain parts and ways of remembering the past while silencing alternative interpretations. In this respect, contemporary memory laws are often understood within the context of state valorization of national unity and coherence.

How memory laws and legislations are used in terms of securing national identity was examined by Maria Mälksoo, comparing Russia, Ukraine, Poland and beyond. Mälksoo (2015: 223) defines memory as a “referent object of security”. In this respect, fixating memory laws, in general, seek to secure historical narratives by excluding and even criminalizing alternative views, and this can be considered as creating a state autobiography, a sort of grand narrative. Providing examples from Russia, Ukraine and Poland, Mälksoo emphasized the production of memory laws as a punitive mechanism that serves to protect the image of the state according to security theory. To clarify, she read out the example of the 2020 Constitutional Amendment adopted in the Russian Federation that included a clause on protecting a historical truth.

“Article 67.1 of the constitution declares that the Russian Federation honors the memory of the defenders of the fatherland and ensures the defense of historical truth. Diminishing the significance of the heroism of the people in defense of the fatherland will not be permitted.”

Accordingly, narratives emphasizing the Soviet role in World War II with a negative connotation – such as the role of the Molotov–Ribbentrop Pact – or rhetoric that compares the Soviet invasion of Poland to the Nazi invasion are deemed offensive to Russia and in accordance with the recent amendments, these are now criminal acts with legal consequences. When Soviet statues of Marshal Ivan Konev in Prague were removed, adoption of Article 243.4 Russian Criminal Code in the Russian constitution made it a punishable offense to damage war graves, monuments, or memorials dedicated to Russia’s military glory or the defense of the Russian fatherland – regardless of the location within or outside of the Russian Federation.

In Ukraine, there has been a similar tendency to regulate the interpretation of the past from the Ukrainian nation-state perspective, argued Mälksoo. The Ukrainian memory laws are punitive and concern especially the condemnation of communist and Nazi crimes. Mälksoo also touched upon two memory laws that were adopted in 2016 and 2018 in Poland: to prohibit propaganda of communism and to penalize public statements which claim that the Polish people and Poland were responsible for or complicit in the Nazi crimes, respectively. She stressed that although these two laws refer to different time periods and different historical events, their very nature demonstrates how legislation of memory is used to promote particular aspects of the past at the expense of others. Similarly, memory laws in Ukraine, the Czech Republic, Hungary, Latvia, Lithuania and Poland all criminalize the denial of the totalitarian communist regimes, unlike the Russian law (2014) that aims at protecting the image of the USSR in WWII.

Mälksoo concluded by highlighting the transnational dimension of punitive governance of memory in terms of memory laws’ functionality. Memory laws in Russia and Eastern Europe not only serve to legitimize domestic political authorities seeking security; they also relate to states’ national history narratives through seeking transnational recognition. This is evident in the construction of alliances among Eastern European countries, their replication of Holocaust memory laws and laws on denial of crimes by authoritarian communist regimes. Mälksoo underlined that the triangle of Russia, Ukraine, and Poland has revealed a severe contest over status-seeking, to gain international recognition for their own stories.

Competing memory models and grand narratives

The two neighboring countries Ukraine and Poland and the memory politics and memory laws applied in those countries were the focus of Andrii Nekoliak’s contribution. Nekoliak described how different mnemonic actors in the Ukraine parliament advocated two competing memory models, also referred to as grand narratives: The Soviet-era memory model versus the National-Ukrainian memory model. The legislation of memory in Ukraine is understood by Nekoliak in the context of this competition. The Soviet model emphasizes the heroic commemoration of The Great Patriotic War and preserving Soviet memory culture in the public sphere while denying mnemonic validity to the national cause in Ukraine during World War II. The National-Ukrainian model lays emphasis on the nationalist struggle for an independent Ukraine. In particular, the Holodomor Famine in Ukraine 1932-1933 under the Stalin regime has been a key point in the nationalist Ukrainian narrative, and its memory has been regulated through anti-denialist laws. These two memory models are manifested geopolitically in the west versus the east of Ukraine. The Euromaidan revolution of 2013-2014 led to a demise of the Soviet-era memory model and a normalization of the National-Ukrainian model. Nekoliak emphasized the role of activist scholars in disseminating knowledge of Holodomor Famine to battle/combat the Soviet-era memory model and promote the National-Ukrainian model.

There has been a continuous rise in the number of memory laws introduced in Poland since 1989. Nekoliak described how a nationalist narrative has gradually been introduced and promoted by nationalist politicians and intellectuals. The focus has been the interpretative work of the Polish experience of World War II. In the 1990s the focus was mainly on a settlement with the communist narrative of the cultural memory. Since the early 2000s a shift has led to a nationalist discourse in legislative work on memory, directed against a critical historiography of Poland’s modern history.

Nataliya Sekretareva talked about the transitional justice model adopted in Russia for Gulag children, and as a lawyer and practitioner, she brought up the legislative changes implemented and presented by Russia as the USSR’s successor. Implementation of the Russian law regarding the rehabilitation of victims of political repression concerns Gulag children, people who were born in internment and exile. Sekretareva highlighted that although according to Russian law, Gulag children have the right to return to the places of their parent’s origin, subsequent legislative changes diminished the implementation of the law, and by 2005 it became unfunctional. One of the problems, she argued, revolved around the issue of victim-blaming: The Russian public questions Gulag children’s right to social housing and other rehabilitation benefits due to their parents’ potential identity as constructed by the “enemy of the state” narrative. Human Rights Memorial helped some Gulag children to appeal to the constitutional court in order to force authorities to implement the amendments to the law and to allow Gulag children to return to the place of parents’ residency before their deportation. Sekretareva’s example illustrates how court decisions can also be important and determinative for how victim status is defined and whether reparations are delivered; in this way, judiciary processes become a component of history writing.

Building upon Mälksoo’s presentation on Russian glorification of WWII, Sekretareva also explained how glorification of the Russian patriotic memory of WWII and the crimes of the authoritarian regime cancel each other out, because acknowledgement of crimes committed by the Soviet regime would pose a moral dilemma when it comes to glorifying the very same rule. Therefore, Sekretareva explained, Russia’s severe reactions against the claims over Soviet-Nazi collaboration and Russian laws of 2014 and 2020 were due to Russia’s failure to distance the state image from the communist past. On the contrary, it is written into the constitution that Russia is the successor of the USSR. Sekretareva argued that Russia will not fully deal with the crimes in the past without distancing itself completely from the communist past. This notion of Russian national identity seems to impact on both mainstream national memory narratives and transitional justice mechanisms adopted for victims. For example, when a rehabilitation law for the victims of political oppression was first proposed by Russian parliamentarians, its similarity to the law for war veterans was considered to be offensive, so a different model was adopted.

Felix Krawatzek introduced his talk with a general reflection on the topic of memory laws and where the post-communist world stands right now. He reminded us that the concept of memory laws emerged in the West as a tool for the reintegration of a political world order after World War II. In the 1980s Germany and France legislated against Holocaust denial, and Krawatzek stressed the importance of this as a background to the memory laws in post-communist countries. In the early post-Soviet era, Russia followed the path of what might be called the Western model of commemoration in condemning the Holocaust and the crimes of Stalinism, but since then it has developed towards a more nationalist narrative on the Soviet era, especially with an emphasis on heroism during the Great Patriotic War.

Krawatzek, together with George Soroka, conducted three surveys in January 2021 about the impact of governmental initiatives to shape the cultural memory in Russia, Germany and Ukraine. The underlying aim was to understand how these top-down memory initiatives affect what people actually think is appropriate to say about history. In all three countries the respondents were asked to what extent they could speak freely about history. When speaking about history, the largest extent of experienced restrictions was evident in Germany while the Ukrainians and Russians felt less restricted. In Germany, the restrictions on what is appropriate to be spoken of are connected to the memory of World War II and the Holocaust, while elsewhere the focus is broader and includes more recent events as glasnost and perestroika in Russia and the Maidan revolution in Ukraine.

Applying a vignette methodology, Krawatzek and Soroka distinguished the factors that affected the respondents’ opinions on memory laws. In Russia, the respondents tend to find it more inappropriate when a foreign academic makes a statement that violates a memory law, compared to when somebody from their own nation says the same thing. In Ukraine, the main line of difference runs between what language the respondents have taken the survey in, Ukrainian or Russian. Krawatzek concluded that there is a demand in the populations for memory laws. In Russia, a clear majority considers it appropriate that somebody should be punished if they publicly state that the Soviet Union collaborated with Germany in the Molotov-Ribbentrop treaty. In Germany there is also quite wide support for memory laws in addition to Holocaust denial while in Ukraine the support of memory laws is relatively low when a scenario about somebody glorifying the Communist past is being surveyed. In the discussion on his talk, Krawatzek returned to the aspect of demand, concluding that memory laws are not solely a tool to control the cultural memory from above, but that there is an observable demand for memory laws in the populations.

Memory laws: an interregional perspective on commemoration and legislation

The afternoon event, the workshop “Memory laws: an interregional perspective on commemoration and legislation” was introduced by Martin Englund and followed by Jelena Subotic’s presentation about the emergence of the memory laws from a historical perspective. She discussed how they are utilized by Russia and Eastern European countries, but also embedded in most Western countries’ “memory war” to counter the rise of historical revisionism in the West, as in France, Germany, or Austria. Jelena Subotic defines the concept of memory law as “an umbrella term for a great diversity of legislation that in some form tries to organize, discipline and order acceptable and unacceptable renderings of the past.” Subotic highlighted that memory laws emerged in the context of considerations in relation to criminalizing Holocaust and genocide denial; however, they have been increasingly utilized and instrumentalized for nation-building purposes.

Referring to Nikolay Koposov (2017), Subotic argued that Western European memory laws are fundamentally passed to construct a shared European memory and an integrated European identity based on Holocaust memory and antifascism. In contrast, recent memory laws have aided a very different purpose in Russia and Eastern Europe: basically, nation-building projects and political instrumentalization of nations’ victimhood. Overlapping with Mälksoo’s argument from the previous round table, Subotic also described recent memory laws in Russia and Eastern European countries in reference to foreign policy and state identity. She stressed that in countries such as Poland, Lithuania, Ukraine, Croatia, and Slovakia, legislation of the past is used as a political tool and feeds into nation-building projects, and that these nations position their national identities in disagreement with the West and the communist past, which entails praising the nation’s victimhood while omitting involvement in WWII atrocities and the communist regimes’ crimes.

Subotic also touched upon the memory dialogue between Russia and Eastern European countries, which reflects itself in contradictory memory laws and legislation. Russia reacted to memory laws concentrating on anti-Soviet memory in Eastern European countries, considering these as pro-fascists, while Eastern European countries reacted to laws passed in Russia to endorse Soviet heroism as pro-Russian and pro-Putin. Subotic concluded by stressing that the EU has also been complicit in this circle of memory contestation “by often uncritically accepting Eastern European claims of equaling the crimes of communism with the crimes of the Holocaust and providing cover for these claims with a series of high-profile EU resolutions, the most significant of which is the 2008 Prague Declaration”.

Joanna Michlic stressed the importance of comparative studies on public memory and how this interacts with the legal system. Michlic brought forward three significant cases to illustrate the work of memory laws in post-communist Europe. The first example was about the reactions in Ukraine to Grzegorz Rossolinski-Liebe’s research on Stepan Bandera. The second and third examples were taken from Poland, first the controversies around Jan Tomasz Gross and his book Neighbours and second the legal controversies around Jan Grabowski and Barbara Engelkind. These three cases display how researchers’ bringing to light what are seen as dark spots of the national history is being faced with severe consequences, both legally and by other means. These scholars have been marginalized and stigmatized by the established conservative elites in the countries that they are writing about. They have been portrayed as national traitors and enemies of the people. Michlic described how the historical past is being transformed into a vital symbolic resource, the black gold of memory politics. It is not only a threat to the freedom of historians but also a threat to democracy, she argued. Memory politics is, in many aspects, the essence of the illiberal and ethno-nationalistic democracy that exists in many post-socialist countries. Michlic described memory laws as one of the key strategies for reshaping the cultural memory.

Michlic presented a broader historical picture to contextualize the mnemonic situation in the post-socialist countries of the early 2020s. One might argue that memory laws have always been part of human societies: That the people in power have always had an official version of public memory and that they have exercised different kinds of regulations to control it. In this respect, the concept of memory laws might be normalized in a way. Moving from this broader understanding of memory laws, Michlic presented the specific function of memory laws in Poland, Ukraine, Hungary and other similar examples. In these cases, the preferred version of the past is being promoted with moral arguments rather than substantial discussions. Michlic stressed that the memory laws have been stimulated within a framework that promotes ethno-national unity. Therefore, they tend to marginalize minorities and polarize the citizens within these contexts. Michlic suggested that the memory laws of the early 2020s in post-socialist countries can be seen as deviations from earlier memory laws. She made a clear distinction between the old Western and the more recent ethno-nationalistic memory laws in terms of their transition from non-punitive to punitive.

Drawing upon the ethno-national political project in Poland which aims at a transformation of public memory, Michlic explained how national identity, institutions and research are being reshaped, an ethno-national elite is being established and memory laws take a central role in this process. Michlic concluded by addressing the necessity of understanding the nature and functions of memory laws to comprehend how public memory is shaped and reshaped. Understanding the nature of memory laws requires a realization of the concept of honor and to what extent people share the views about their nation’s glorious past. The honor of the nation is the core value in the memory laws of the post-communist countries. It is a moral approach to the past where the aim is to strengthen a sense of pride and unity in the nation. To reveal dark spots or display complexity threatens national integrity.

Transitional justice and politicization of memory studies

Transitional justice and judiciary processes have been applied as legislative practices in shaping memory and historical records. Johanna Mannergren Selimovic’s presentation concerned transitional justice in Bosnia-Herzegovina. Post-war Bosnian history has been largely constructed by outside interveners ever since the Dayton peace agreement was signed, and the Office of High Representative was created with their instrumental legislation-making power. Most important, she noted, is that the verdicts of the Hague Tribunal (the International Criminal Tribunal for the former Yugoslavia – ICTY) has revealed that apart from handing out sentences to perpetrators, the Tribunal has also been performative for constructing memory. The Tribunal’s archive sets an important record for historical events, argued Mannergren Selimovic, by drawing attention to the social aspect of the judiciary processes in terms of how ordinary people perceive them, and how outcomes of the legal archives are communicated through art.

Sejla Kameric is an internationally known Bosnian artist, who works with the archives of ICTY in her art using witness statements and video recordings. Mannergren Selimovic gave this as an example of how the legal site of memory can be linked with social space. She also shared reflections from her field research experiences in the small eastern Bosnian town, Foča — a place known for war crimes committed during the Yugoslav war. When Mannergren Selimovic visited Bosnia, just eight years after the war, the Tribunal’s findings were not openly talked about in public. One of the first trials related to rape as a war crime was based on the findings of rape as a modus operandi in a camp located in central Foča. However, Mannergren Selimovic observed that over time people’s willingness to talk about these verdicts changed. She stressed that although ICTY’s verdicts were important as punitive decisions in navigating historical truths, one needs to also pay attention to how ordinary people perceive these decisions and how they “make memory” in their everyday life. She concluded by highlighting that memory is too complicated to be fixed by the Tribunal’s archives.

David Gaunt has searched the archives to reveal contested memories of mass violence against minorities in the Ottoman Empire. Gaunt stated that from an observer’s perspective, memory studies tend to become its own bubble, seemingly obsessed by its own discourse on nationalism, going back and forth on it, and the use and misuse of history. Gaunt stressed the importance of getting out of this trap. He went on to show that the concept of memory laws makes scholars focus on high politics, which is a dead end, in Gaunt’s opinion, as long as they do not look at how these memory laws are being implemented, how they affect people’s lives. Gaunt presented the picture of memory studies standing in front of a choice of paths: It could either go into social history or intellectual history. Gaunt preferred the former, arguing that scholars should be looking at trials rather than at the intentions of the legislators. He stressed the importance of having an ethical relationship to other historians. Today a lot of historians are being brought to trial and sent to prison for their research. Historians might be harassed by many other types of laws, not just by memory laws. Gaunt gave a range of examples from different countries and concluded by highlighting the necessity of looking at what other kinds of legislation are being used to control cultural memory.

Per-Anders Rudling gave a talk on memory laws in Ukraine which is also connected to Poland. He described Poland and Ukraine as an old dysfunctional couple that can neither get along nor manage to divorce. Ukrainian memory laws are being mirrored in Poland and vice versa. Ukraine developed its memory institutions and legislations later than many other post-communist countries, he argued, because the Ukrainian government did not make a clear break with Soviet politics as Poland or the Baltic states did. It was only in the late 1990s that the nationalist memory actors of Ukraine got organized and started to have an impact on public memory. After the Maidan revolution, these mnemonic actors rose to power and took control over the country’s memory politics. Rudling also addressed the central role of the Holodomor famine in the Ukrainian memory model that Nekoliak had introduced on the previous panel. According to Rudling, the Ukrainian government introduced an over-exaggerated number of people killed by the famine — also including the unborn Ukrainian children of the dead. A list of perpetrators was also publicly announced, which presented people of Jewish origin by their former Ashkenazi names to highlight their Jewish origin. Public memory politics have evident antisemitic undertones, Rudling explained. Ukrainian leaders generally stayed away from history until the Maidan revolution, but the legislation of memory became essential with Poroshenko’s memory politics.

Rudling mentioned four decommunization laws introduced in 2015. The whole discourse around these laws reflects the Western mnemonic concepts: decommunization and denazification, Holodomor and Holocaust. In parallel, the communist party of Ukraine was banned. One of these laws stipulated that certain nationalist Ukrainian groups such as the Ukrainian Insurgent Army, UPA or OUN were to be respected. This created tensions with Poland since these groups killed large numbers of Poles in the Eastern parts of Poland. There were also reactions from Israel since these Ukrainian nationalists killed a large number of Jews. In Poland, the focus of public memory since the fall of the communist regime has been on Nazi-German and communist-Soviet atrocities. The deeds of Ukrainian nationalists were not given much attention. However, this relative silence went through a drastic change. Recently, while the government in Ukraine has been promoting an active memory culture around Stepan Bandera and nationalist groups, Poland has been publicly declaring the deeds of the Ukrainian nationalists in Volhynia a genocide. National heroes on one side of the border, perpetrators of genocide on the other side, and both historic interpretations are legally preserved.                          

Western vs. Eastern models of memory laws

An aspect discussed throughout the whole event was the Western vs. Eastern models of memory laws. Jelena Subotic highlighted that she has been asked many times why she is not studying the West. There seems to be a risk of essentializing a dichotomy between East and West, as if restrictive memory politics and legislations belong only to the East and not to the West. Accordingly, Krawatzek described how memory laws was initially a Franco-German concept exported to post-communist countries. For example, Mälksoo explained this from a perspective of colonialization and decolonialization. Mälksoo stressed that the cultural memory of Western Europe and the politics of memory with their legislation against Holocaust denial was already set when the post-Soviet countries entered an era of mnemonic emancipation. Emancipation should not be viewed in this context as something inherently egalitarian from a scholarly perspective, but rather as a national emancipation formulated from within the nationalist discourse. The entry ticket for the post-socialist countries to enter the European community was the recognition of the Holocaust.

Another point raised throughout the discussion was the change of memory politics and legislations over time from the early post-Cold War era when mnemonic conflict lines were generally drawn between a focus on the memory of the Holocaust and atrocities under communist regimes. The EU and Western countries did support the commemoration of communist atrocities which provided a mnemonic integration of Eastern-, Central- and Western Europe into a Europeanization of public memory. However, a criticism of memory politics has emerged from the EU and other places since the nationalist turn of the politics in post-communist countries. The conflict line is not about whether to focus on the Holocaust or Communist atrocities but rather to what extent and in what way it is acceptable to bring up so-called dark spots on the history of one’s own nation. Recent memory legislation in post-communist countries increasingly includes the intention to protect the unity and honor of the nation. These memory laws have met fierce criticism from Western countries as departing from the European unity of memory that was approached in the 1990s.

Another theme raised during the discussions were related to the clash between freedom of speech and preventing the protection of victims’ memories through legislation. The recent debates in Sweden about proposing a memory law against the Holocaust denial have also formed a timely ground showing the legal aspects of freedom of speech and preventing right-wing extremism and protecting victims’ memories. Rudling argued that the proposal in Sweden derives from the same argument that is found behind the establishing of the Forum för levande historia (The Living History Forum). He regards The Living History Forum as an example of a governmental memory institution using history as an instrument to prevent racism and promote democracy. He raised concerns about this development to legislate against misuse of history because it is opposed to the liberal democratic tradition of civic rights which is manifested as freedom of speech. Rudling emphasized that no essential values are threatened by not having memory laws; on the contrary. He also questioned why there is no legislation against the denial of other genocides and atrocities, if there is to be a law against Holocaust denial in Sweden.

In this context, Rudling emphasized the importance of freedom of speech and freedom of research. Both he and Gaunt mentioned that several researchers, historians specifically, are threatened by legislation on cultural memory in post-communist countries and Turkey, for example. By embarking on the path of memory laws, Sweden would diverge from a civic liberal tradition of not legislating about different interpretations of the past. Rudling introduced the organization Historians Without Borders as one way to mobilize resistance against the restrictions on freedom of speech and freedom of research.

As the debates around a potential Swedish law have indicated, implementations of memory laws have raised questions regarding the value of free speech as a supranational European ambition. Pluralism has always been a symbol of liberal societies and it is hardly possible to abandon that value in the field of historical memory. Accordingly, it is possible to question France’s and Germany’s laws on Holocaust denial in terms of freedom of speech. Soroka and Krawatzek (2019: 158) highlighted that even though laws on Holocaust denial seem controversial regarding freedom of speech, it is still important to be aware of the purposive characteristics of the laws in terms of constructing a basis for dialogue, reconciliation and protecting minority or victim rights.

Krawatzek discussed the colonial universalism behind the Western paradigm of memory. The reconciliation between France and Germany after World War II was based on a mutual recognition of atrocities. This model for mnemonic reconciliation was later exported to the post-socialist countries and might be understood as the discursive foundation of the later legislation on memory. In this sense, there is definitely a need to problematize the distinction between Western model of memory laws focusing on the Holocaust and Eastern model of memory laws focusing on national unity. Contemporary laws that entrench certain versions of history often undermine pluralistic approaches and valorize nationalistic ideologies. So they are oppressive rather than protective towards marginalized or victimized groups. Michlic underlined the need to look at these laws from a transnational perspective and with a focus on the concepts of pride, shame and honor. Michlic argued that even the initial memory laws against Holocaust denial were born out of a concept of pride. These emotional aspects also underlie nationalist memory politics, which — as the discussion showed — move towards depoliticization and judicialization of historical interpretations in some post-communist and post-Soviet countries. Therefore, the topic of memory laws remains deeply intertwined with other mnemonic appearances such as public commemorations, memory sites and competing victimhood narratives.

Both events highlighted that the legislative aspect of memory is inevitably a piece of a greater mnemonic whole. Gaunt stressed that memory laws are part of a broader social reality that affects people’s lives. The human factor was especially evident during the discussions on transitional justice as a significant component of legal and judiciary regulation of history. The prosecution of criminals, investigation of genocides and crimes against humanity are also significant components that shape collective memory. The decisions by international and domestic courts are not only important because they produce a certain narrative about what happened in the societies in transition, but also because they produce legal documents that present the historical facts. This was first realized through the Nuremberg trials on an international level, then it continued with the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). During the discussion, Mannergren Selimovic highlighted the ICTY’s role in terms of promoting international legal obligations to deliver justice to the victims and emphasized that Hague Tribunal has created vast archive with a range of materials that might be of great importance for generations to come.

Reparations was another component of the transitional justice mechanism discussed throughout the event. As legal responsibilities of a state to repair injustices of human rights violations, reparations are significant indicators of the main actors and characteristics of these violations. And they bring about legal consequences such as financial compensation, physical rehabilitation, and psychological healing services. Sekreteva discussed how rehabilitation laws in Russia – which cover Gulag children – perform on a domestic level and distinguished reparation laws from the memory laws that criminalize certain statements about the historical events. Sekreteva emphasized that rehabilitation laws act as instruments that honor the victims, that draw a line between victims and perpetrators by defining who is entitled to get compensation. Therefore, they are important in the sense that they show the perception of state and shapes the perspective of society about the historical events.

In conclusion, the round table and the workshop showed that the memory laws and memory politics are inevitably connected to each other. Even though memory is very cultural and contextual, it still is subject to contested relations between countries which create what might be called “memory wars”. The memory wars within and among countries and regions have also been reflected in legislative and judiciary processes. In this respect, the legislation of memory can be seen as a piece of a greater mnemonic whole. Yet, as Irina Sandomirskaja indicated during the discussions, different memory laws might take their roots from different legal traditions and norms derived from diverse legalities. For example, different traditions of socialist legality, Stalinist legality, legal contexts during WWII, post-war judicial processes against war criminals, rehabilitation laws for victims and so on might create different norms to be realized. How these legal norms and traditions within different countries transform and interact with each other remains unaddressed and deserves more attention for future studies.

Literature

George Soroka and Félix Krawatzek “Nationalism, Democracy, and Memory Laws”, Journal of Democracy 30, n.2, (2019), 157-171.

Johanna Mannergren Selimovic, “Challenges of Postconflict Coexistence: Narrating Truth and Justice in a Bosnian Town” Political Psychology 36, n.2, (2015), 231-242.

Maria Mälksoo, “‘Memory must be defended’: Beyond the politics of mnemonical security”, Security Dialogue, 46, n.3 (2015), 221-237.

Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia (Cambridge University Press, 2017).

 

 

 

Cagla Demirel and Martin Englund