The last decade and a half has seen heated public debates and controversies around a new type of national laws, popularly known as “memory laws.” Broadly considered, different types of national laws address the historical record or the shared perception of the past; for example, 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 (Reference FronzaFronza 2006: 29; Savelsberg & Reference Savelsberg and KingKing 2011; Reference ZerubavelZerubavel 2003). Yet the controversies relate to another type of laws, those that seek to shape or draw the boundaries of the public debate on the past. These memory laws are utilized with regard to difficult and violent histories and are of two central categories: one that bans and criminalizes a positive perception of an atrocious past such as genocide or mass-violence, and the other that bans a negative perception of a violent past.Footnote 1 The first type seeks to maintain a negative memory of a violent history, and the second aims to fortify a positive memory of such history. The first type, which includes laws against Holocaust and genocide denial, has been addressed in scholarly work on the use of laws and trials against the denial of genocide and mass violence.Footnote 2 The second type, however, has received little scholarly attention, although it has triggered great public controversies in the last decade. Laws that enforce a positive depiction of colonial or authoritative periods in France (2005) and Russia (2011) were denounced by local and international associations of historians and intellectuals and civil society groups; and a law against mourning the Palestinian displacement in the 1948 war during the Israeli Independence Day celebration (2011) initiated a heated public debate in Israel. I will center here on the less theorized (with the exceptions of Reference BoydBoyd 2008; Reference CurranCurran 2015; Reference Hannebel and HochmannFraser 2011; Reference MillerMiller 2010; Reference Tremlett and AmagoTremlett 2010; Reference WartanianWartanian 2008; Reference Lemarchand and ReyntjensLemarchand 2006–2007; Reference KoposovKoposov 2005) and more recent phenomena of memory laws of the second type: laws that ban a negative perception of a violent history in order to fortify a positive memory of the nation-state (from here on I use the term memory laws to refer specifically to this category, unless otherwise specified).
Such laws raise tensions both domestically and in the regional or international level. On the international and regional level, memory laws that fortify a positive perspective of a nation-state's past and ban negative perceptions stand in contrast to progressive efforts of truth-seeking regarding violent histories in the past decades. International law, as well as international and regional courts such as the European and Inter-American courts, have determined the rights of victims to know the fate of their loved ones who were victims of mass violence and imprisonment, as well as the importance of commemoration and remembrance for survivors and their descendants.Footnote 3 Such entities have, therefore, worked to stop nation-states from closing down the public space, limiting collective memories, and presenting only the historical narrative of state leadership. They instead sought to open up a space for different perceptions and experiences of the past, especially of surviving victims. Although nation-states’ efforts to construct a dominant collective narrative for their national community have been widely researched, documented, and analyzed (Reference DavisDavis 2005; Reference NoraNora 1996, Reference Nora1984−1992), the growing international paradigms that call for addressing past atrocities and a “politics of regret” since the 1980s have also shaped states’ perceptions and responses about their national pasts (Reference BarkanBarkan 2000; Reference Berg and SchaeferBerg and Schaefer 2009; Reference CohenCohen 2001; Reference Olick, Coughlin and TorpeyOlick & Coughlin 2003; Reference OlickOlick 2007; Reference Torpey and TorpeyTorpey 2003).
On the nation-state level in which memory laws are legislated, they do not guard against hate speech more than existing free speech and hate crimes laws (Reference Savelsberg and KingSavelsberg and King 2011), nor do they replace the state's education system and memorial institutions in teaching citizens about the dominant perception of the national past. Moreover, these laws are criticized by legal scholars, historians, and intellectuals for limiting the freedom of speech, the freedom of media, as well as the freedom of occupation for those who professionally study the past.
National memory laws in the recent decade therefore merit examination on several grounds. First, because state efforts in the last decade and a half to control the “truth” about the past undermine decades-long international and regional efforts, laws, and rights “to know” and to commemorate violent national histories.
Second, memory laws of the second type are worth studying because, as I argue, they are a legal technique that has been utilized in the last decade by elected governments for non-democratic proposes. As I will show, such laws have been used in democracies for the exclusion of citizens and non-citizens from public debate. They were proposed in order to limit and narrow the national public debate on the collective past, in contrast to the principles of free speech and deliberative democracy that advocate the opening up of public debate to a variety of voices, experiences, and interpretations of the past and present (as well as visions for the future. Reference DryzekDryzek 2005). Their legislators use these laws to try and guard against critical interpretations and counter-memories of a previous regime's conduct toward citizens and non-citizens either explicitly, by forbidding negative perceptions of the past (as in the Israeli and Russian cases), or implicitly, by exclusively acknowledging the dominant perception of a contested past (as in France). Sometimes disguised as protecting against hate speech and genocide denial (for example in Russia), they are always directed at a social group or groups whose critical perceptions of the past they aim to block and silence.
I compare two prominent instances of memory legislation: the “Law Against the Rehabilitation of Nazi Criminals” in Russia (2014), an amendment to the penal law that bans views different from the verdict of the Nuremberg Tribunal or distributing false facts about the actions of the USSR during the Second World War; and the “Nakba Law” in Israel (2011), an amendment to the Budget Principles Law of 1985, which bans the commemoration of “Independence Day or the day of the establishment of the state as a day of mourning.” I analyze what characterizes these laws and the contexts in which they have been used. My goal is to evaluate and compare the impact of this legislative tool on public debate in practice: Has public debate on the past at issue been expanded and opened up to a variety of voices as an intended or unintended consequence of the law or the public debate surrounding its legislation, or has the law limited public debate by excluding critical views on the past from public expression? The former outcome would suggest a democratic and inclusive impact, whereas the latter would indicate a non-democratic outcome that excludes some groups from public debate and political participation. I also point to another case of memory legislation—the French “Colonialism Law” (2005), which was named after a section that required high-school curricula to “recognize in particular the positive role of the French presence overseas, notably in North Africa.” Unlike the Russian and Israeli laws, the French law was publically rejected as undemocratic and subsequently repealed.Footnote 4 Drawing similarities and differences between the two prominent cases of memory legislation and the “failed” law in France would widen our understanding of a state's capacity to restrict public debate on the collective past, as well as the limits of state power.
Analyzing the legislative process and public debate surrounding these memory laws through discourse analysis, this article offers a sociopolitical and cultural analysis of memory laws. Following Reference LöytömäkiLöytömäki (2013), the national legal arena is perceived here as a discursive public arena in which different interpretations of the past express and shape the historical understanding of different groups in society, including majority and elite groups as well as minority and marginalized groups. Although the law is commonly perceived of as reflecting and reinforcing the majority's perceptions, conflicts and competitions between different perceptions are publically expressed during the legislation process. Therefore, the legal arena is one of the channels through which nation-states deal with international and domestic calls to address difficult memories of their violent histories (Ibid.).
The case studies were chosen because in each of them democratically elected legislators forbade by law negative perceptions of the state's violent history. These perceptions were held by a specific group or groups that the legislators sought to control and silence. Moreover, each of the cases of legislation generated opposition in a heated public debate, a response that manifests the conflict between democratic law and state memory of a violent past. These debates serve as a lens to the central conflicts, actors, positions, stakes, and power relations that surrounded the processes of legislation in each context and shaped the success or failure of the law in pursuing its task in the eyes of the legislators.
The differences between the two prominent cases, however, introduce variations and suggest limitations of state power to control public views about the collective past, which enables one to evaluate the actual and potential impact of memory laws on democratic public debate with more nuance. In both cases memory laws that targeted political and national minorities have successfully passed but had a differing impacts on controlling and narrowing down public debate on the past in practice: The Israeli “Nakba Law” was less effective in blocking the airing of the contested past at issue, while the Russian legislation process of the law against the rehabilitation of Nazism was more successful in limiting the Russian public debate even before the law had passed.
The type of government, political culture, and historical events that these laws concern are of course very different in each case, and my intention is not to compare these aspects; instead, I examine the similarities and differences between the meanings and purposes assigned to these memory laws and the context and public debate that surrounded their legislation. Comparing these factors reveals how memory laws function in and after conflict and a transition to democracy in which the current government addresses the previous government's violent conduct: In Russia, where the current regime addresses the past's authoritative regime, there is continuity or at least duality regarding the violent conduct of the previous regime; in Israel, a transition from conflict with the Palestinians to peace is yet to come and the regime had not changed. And so depicting the regime's conduct in the past carries high stakes for the present and future of the conflict. A brief discussion of the relations between state, memory, and truth in and after a transition to peace and democracy in the remainder of the introduction sets the ground for such inquiry.
Not only authoritative regimes, but also democratic states attempt to control what “truth” is allowed in the public domain and what is not allowed. In times of conflict as well as in times of peace, such endeavors to control the public discourse include legal techniques and militant measures to exclude and ban groups, parties, and speech, often justified by security arguments (Wagner-Pacifici forthcoming). Another manifestation of state silencing takes place in transitions from conflict to post-conflict, when the state sets out to suppress truth-telling mechanisms and to draw a line between past atrocities that divide the society and the transition to peace around which society is supposed to renew social relations and reconcile (Reference BoydBoyd 2008; Reference JudtJudt 2005). State leaders justify this silencing in the interest of stability after a societal breach (for example, Polish PM Mazowiecki's call to draw a thick line between the past and present in 1989). This has been the case in post–Second World War Germany and France, and even more so in post-dictatorship Spain and post-socialist Poland, where drawing a “thick line” with the past or agreeing to a “pact of silence” were some of the measures taken by the government to ease the transition to democracy and peace (Reference BoydBoyd 2008; Reference JudtJudt 2005; Reference WüstenbergMazowiecki 1989; Wüstenberg 2009). However, such state efforts to silence “truths” that air a contested past did not last long in the abovementioned cases of transition. A few decades after the transition, the younger generation called for a revision of the state's collective memory to address the violent past in a more open and inclusive manner (Reference BoydBoyd 2008; Reference JudtJudt 2005; Reference MichlicMichlic 2012; Reference WüstenbergWüstenberg 2009). These domestic calls to address the past are joined by others from diasporic communities (like Jews or Armenians), international bodies (The International Center for Transitional Justice, The United Nations, or the European Parliament), or rival states in the past or present (Algeria and France, Armenia and Turkey, or Russia and the Ukraine among others). Memory laws are one of the ways in which the nation-states I studied dealt with such calls: by attempting to block the airing of the contested past by domestic and external groups through criminalizing negative perceptions and fortifying a positive perception of the same historical periods.
However, my findings suggest that the use of law to fortify a positive collective memory in light of public contestations could lead to the opposite outcomes than those anticipated by lawmakers. Instead of limiting the publicity of officially silenced memories, it disseminates them further. Instead of increasing solidarity as a basis for social stability, guarding against polarization, and advancing democratic principles, memory laws brought heated debates that threatened to further polarize the society around the contested past, and in the cases I present in this article they also seemed to narrow public debate instead of opening it to greater plurality and diversity.Footnote 5
In the next section, before introducing the case studies and comparing them, I provide the theoretical background. The comparison of case studies is followed by a concluding discussion of memory laws and their consequences for democratic public debate and minority rights in relation to mechanisms of inclusion and exclusion.
The Tension Between Democratic Law and Nation-States’ Memory
National laws are usually shaped in line with the hegemonic perception of the national past and, in turn, help shape and fortify this perception.Footnote 6 For example, hate-crime laws are shaped according to the dominant perception and collective memory of certain atrocities in the nation-state's history and democratic tradition (for a German-American comparison see Savelsberg & Reference Savelsberg and KingKing 2011), and laws that dedicate memorial days, national ceremonies, and archives assist the educational system in disseminating these perceptions and memories among society members (Reference DurkheimDurkheim 1995 [1912]; Reference NoraNora 1996; Reference ZerubavelZerubavel 2003). Even in the absence of memory laws that fortify a positive perception of the nation-state regarding a difficult past, national laws often accommodate the national majority and exclude minority memory and experience (Rothberg & Reference Rothberg and YildizIldiz 2011).
Memorial-day laws powerfully demonstrate this point. These laws “remind” the dominant national community of its shared past, in order to reactivate the society's identification and solidarity every year through the social calendar (Reference DurkheimDurkheim 1995[1912]; Reference NoraNora 1996; Reference ZerubavelZerubavel 2003). Officially, memorial-day laws set the rules of public conduct in these occasions for public institutions, media programs, and businesses, yet they also reflect and, in turn, shape the narrative of the past that is being commemorated in these specially assigned days (Ibid.). Some such laws designate a broad and general theme to be molded into particular narratives by local branches of educational and national institutions according to specific social and political contexts, interests, and sensibilities (Reference Vinitzky-SeroussiVinitzky-Seroussi 2001). In many cases, however, these laws include predetermined specific narratives about the nation and people and by so doing centralize and unify national commemoration around the majority, while excluding national minorities (Reference AndersonAnderson 1991; Reference GellnerGellner 1983; Reference NoraNora 1996). In Israel, for example, significant events in the history of the 20 percent minority of Palestinian citizens have always been excluded from memorial-day laws or laws that establish memory institutions or archives.
What, then, is the “added value” of memory laws to the safeguarding and fortification of the majority's national history and culture? How does the active banning of minority groups’ memories in these laws differ from simply ignoring them in memorial-day laws that systematically propagate the dominant national memory? Analyzing the legislative process and public debate in different cases of memory laws, I found that both types of laws (memorial-day laws and memory laws that fortify the dominant perception) are in fact stages of the same process of reaction to calls to address violent histories and difficult memories. While memorial-day laws often pertain only to the majority's victimhood and suffering and exclude minorities’ suffering, memory laws actively ban contested memories of mass violence by minority groups – a step further against existing attempts to break the official silence about violent pasts. Such memory laws are therefore another stage in the process of return of the once-lived, long-silenced memory into public consciousness and debate (Reference CohenCohen 2001).
To be sure, when the memory of a group is absent from public consciousness, contested, or suppressed, it is difficult to mobilize it into legal action or policy (Savelsberg & Reference Savelsberg and KingKing 2011: 128; see also Reference BarkanBarkan 2000). However, instead of viewing amnesia and public consciousness as a binary opposition, Reference CohenCohen (2001) and Reference StolerStoler (2009) propose a spectrum that lies between these poles as a space of various conflicts between different perceptions of the past against which legal intervention takes place. I return to this argument in my analysis of the Israeli and French memory laws.
In addition to condemning the silencing and exclusion of minority experiences and memories, the critics of memory laws in Russia and Israel, as well as in France, argued that constructing the memory of the past or determining the historical record is not the task of the law. Assigning such responsibility to the law limits freedom of speech as well as the freedom of academic research and the freedom of occupation for historians and history teachers, they state (Reference Garton-AshGarton-Ash 2008; Reference NoraNora 2008; Reference WartanianWartanian 2008). However, a variety of legal techniques has been used in practice for collective memory construction, sometimes for oppositional goals and outcomes, especially in the international and regional level in comparison to the national level. These tasks were taken up by courts (Reference OsielOsiel 1997; Reference BroudeBroude 2012), legislation of hate crime laws, and official apologies and redress (Savelsberg & Reference Savelsberg and KingKing 2011; Reference BarkanBarkan 2000; Reference Torpey and TorpeyTorpey 2003), as well as memory laws. I, therefore, examine not whether memory laws should be used but how they were used in practice and the paradoxes, contradictions, and framing of this use.
Two historical and theoretical contexts are of particular relevance to understanding the assignment of history-writing and memory-construction roles to the law: the transnational paradigm of historical or transitional justice and truth-telling (Reference BarkanBarkan 2000; Reference Berg and SchaeferBerg and Schaefer 2009; Reference CohenCohen 2001; Reference OlickOlick 2007; Reference Olick, Coughlin and TorpeyOlick & Coughlin 2003; Reference Torpey and TorpeyTorpey 2003) and growing calls to address atrocious pasts in practice around the world. The expert-based paradigm of “Historical Justice” (Reference BarkanBarkan 2000; Reference Berg and SchaeferBerg and Schaefer 2009) and increasingly also “Transitional Justice” (Reference BackerBacker 2003; Reference McAdamsMcAdams 1997; Reference TeitelTeitel 2000) have widened to include researchers from various academic disciplines as well as a growing number of practitioners and consultants. These experts design and utilize practical tools and models to assist the public airing of national contested pasts, which is viewed as a condition for putting this past to rest so it does not come to haunt the creation of a better society in the future (Reference BarkanBarkan 2000; Reference Berg and SchaeferBerg and Schaefer 2009; Reference VerdejaVerdeja 2014; Reference Torpey and TorpeyTorpey 2003). Legal tools developed by such experts have envisioned transitioning from conflict and authoritative regime to peace and democracy as involving truth seeking, historical record-setting, acknowledgment and empowerment of victims, teaching the public about human rights violations, and contesting exclusive national state narratives (Reference McAdamsMcAdams 1997; Reference OsielOsiel 1997; Reference TeitelTeitel 2000).
Such scholarly and practical efforts to intervene in states’ preoccupation with the past and to shape post-conflict or post-transition national memory are pursued because of the stakes involved in how the legacy of a violent past may be mobilized in the present. It may be used to build peaceful social relations or to perpetuate violence (Reference Levy and SznaiderLevy and Sznaider 2006; Reference MosesMoses 2011). Moreover, within the nation-state, collective memory can be a significant site for political participation and citizenship, and so including marginal or victim groups in the dominant recollection of the past enables them to participate politically and become active citizens in relation to present problems as well (Reference Rothberg and YildizRothberg and Ildiz 2011).
Many of the memory conflicts within a nation-state therefore manifest struggles to change the boundaries of national membership and political participation by opening up the dominant collective memory to include the memories of those who had a less favorable experience of the state's history. The dominant perception of the national past may, on the other hand, reinforce existing mechanisms of exclusion of minority groups who remember less-glorious periods in the nation-state's history. Such memories of state-sponsored or intercommunal violence, political imprisonment, and collective punishment undermine democratic legacies and the ethos of human and citizen rights that democratic states claim. In other words, while the dominant perception of a specific past is the object of memory laws, they carry high stakes for political participation and legitimacy of the nation-state that extend beyond the specific past. Memory laws that attempt to guard the dominant narrative of the national past against delegitimizing views are therefore of great importance to understanding the exclusion of minority groups from the central avenues of mobility and political discourse. As mentioned, an absent memory is harder to mobilize into social or legal action (Reference Savelsberg and KingSavelsberg and King 2011: 128; see also Reference BarkanBarkan 2000).
Instead of viewing amnesia and public consciousness as a binary opposition, I follow Reference CohenCohen's (2001) and Reference StolerStoler's (2009) aforementioned approaches in opening up the spectrum that lies between these poles of knowing and not knowing. This spectrum is a space of various conflicts between different perceptions of the past that seek publicity and legitimacy, against which legal intervention can take place. I, therefore, follow Reference LöytömäkiStiina Löytömäki (2013) in arguing that the law is a discursive arena in which different interpretations of the past express and shape the historical understanding of different groups in society. It is a multidirectional process in which conflicts between different perceptions of the national past that exist outside of the legal system are fought. At the same time, the legal arena is one of the channels through which nation-states deal with the collective memory of atrocities in light of public contestation. In France, for example, where the national concern with the past has shifted in the past two decades from focusing on the Vichy Government to French Colonialism and in particular the Algerian war (1954–1962), Löytömäki shows how the politics of memory of this violent past is enacted within the French legal system, primarily through trials regarding torture (Ibid.; see also Reference CohenCohen 2003). In comparison to courts, memory laws can be viewed as more of a one-sided form of legal intervention in the perception of the past, yet some of the cases of memory laws I examined revealed a basic paradox that gives room to counter-memories and contestations. The state uses the legal system to maintain a positive perception of its violent past and block counter-hegemonic interpretations, yet as I will show, these interpretations gain visibility and publicity in the process of legislation and become better-known to the larger society (and the world) than they were before the legal intervention. While trials expose conflicts between different views and claims, memory laws reveal the force of silencing other interpretations by the state. And yet, as we will see, even this force cannot silence what has already been aired in public.
Examining two prominent cases of memory legislation in the last decade raises interesting similarities regarding the motivations behind memory laws, the groups toward which the legislators directed their efforts, and how such laws function in practice. The comparison also reveals a parallel tendency regarding minority rights and democratic public debate, which carry different consequences in each case.
The Russian Law Against the Rehabilitation of Nazi Criminals (2014)
In Russia a law first drafted in 2009 appeared to resemble laws against Holocaust denial but was in fact aimed at forbidding any criticism of Russia's actions during and after the Second World War. A 2002 federal law on counteracting extremists, known as the Extremism Law, already criminalized Nazi public propaganda and paraphernalia, mandating a penalty of up to five years in prison (Reference GrossGross 2003). Additionally, a list of banned extremist literature has been maintained by the Ministry of Justice, including Adolf Hitler's Mein Kampf.Footnote 7 Yet a law pertaining to the same offences was proposed in 2009 on the eve of the 64th anniversary of the Allies’ victory in WWII (May 8) and was approved around the same date five years later.
The first and lengthiest version of the Law Against the Rehabilitation of Nazi Criminals (Law project number 197582-5) was presented in the Duma on May 6, 2006, by a group of deputies representing the ruling party, United Russia. The proposal was immediately overshadowed by another legal initiative: a historical truth commission that President Dmitry Medvedev ordered to convene on May 15, 2009 (Reference RodgersRodgers 2009). The official aim of the commission was evident in its full name: “The Commission to Counteract Attempts at Falsifying History to Damage the Interests of Russia” (Reference AndrieuAndrieu 2011). Yet there was another goal behind the commission, as well as the law—they were both designed to block the surge of Eastern European narratives about World War II as part of a larger attempt “to politicize history and to prevent the emergence of any historical narrative that would belittle the image of the Soviet Union, the legal predecessor of today's assertive ‘new Russia,’ ” as Kora Andrieu explains (2011: 213). The commission met twice, supported the production of some leaflets, and was adjourned in 2012. The debates about the law proposal were only the beginning of a long and volatile process of legislation.
Surveys showed that 60 percent of Russians supported a law on the falsification of history (Reference KoposovKoposov 2010). One of the initiators of the law proposal, Duma Deputy Irina Yarovaya from the Ruling party United Russia, told the pro-government newspaper KM: “We will not allow the re-writing of history; the Soviet soldier will remain a liberating soldier, protecting peace in the face of the fascist plague” (Reference SubbotinaSubbotina 2013). The paper praised the bill because it would make the scientific community “hit the breaks” and “filter the conclusions” (Ibid.). As the paper suggests, the law was directed against revisionist historiography and critical views of Russia. Its aim was to produce an ideological consensus regarding the positive and liberating role of the country in ending the Second World War as a basis for contemporary national identity by silencing critical voices both within the country—such views are held by the liberal creative class, pro-West intellectuals and civil society groups—as well as from abroad.
Russian historians were divided: Some supported such a law or hoped it would at least bring an opening of the archives; others saw it as severely limiting their scientific freedom (Reference KoposovKoposov 2010; Reference MillerMiller 2010). They received the support of external historians’ organizations such as the French Liberté pour l'histoire, the American Historical Association, and the American Association for the Advancement of Slavic Studies, as well as a petition by Italian historians.Footnote 8
The revisionist historiography and critical views of the past from within joined regional condemnations of the practices of the Soviet occupation and the Red Army during the Second World War. The law and the commission came at the end of a decade during which post-socialist countries have revisited their past under the USSR as part of their transition to democracy and nation-building efforts (Reference AndrieuAndrieu 2011; Reference KoposovKoposov 2005). They condemned the crimes of Stalin's military death squads, SMERSH, which showed that the Soviet regime was oppressing rather than liberating, in addition to producing scholarly publications on the violence of the Red Army in the countries it occupied during World War II (the mass rape of women, for example) (Reference KoposovKoposov 2005). Their denunciation conflicted with the national sentiment of Russia; the Second World War is, in the minds of some, the only historical event that can unite the Russian people today (see, for example, Patrov in Reference AndrieuAndrieu 2011: 214), and so countering the growing contestation of the dominant and positive perception of this national past was the task that the legislators set out to accomplish.
The first version of the law against the “rehabilitation of Nazism in the newly independent states within the territory of the former Soviet Union” was made public when it was posted on the Website of the news agency Regnum on April 20, 2009 (Reference KoposovKoposov 2009, Reference Koposov2010). As is evident from its title, it was to be enforced within the borders of the USSR as defined in June 22, 1941, both for Russian citizens and for citizens of today's independent countries that were then part of Soviet territory. The law enforces a range of sanctions on these new states if they were found guilty. This version outlined an expansive memory law that included two measures: (1) a civil tribunal that would oversee the preservation of national memory, develop a policy of historical memory, identify public claims that justify the Nazi regime, and create programs to combat it and; (2) an amendment to the penal code that criminalized rehabilitating Nazism and “distorting” the verdict of the Nuremberg Tribunal, with a penalty of three to five years in prison (Ibid.).
However, it was unclear how the law would be executed and what version of the past is “the right one,” and so this first version was not presented to the Duma (Reference KoposovKoposov 2009, Reference Koposov2010). The proposal that was presented in the Duma on May 9 was drafted by a group of delegates headed by Boris Gryzlov, and it stated:
Distortion of the Verdict of the Nuremberg Tribunal, or of the verdicts of national courts or tribunals based on the Verdict of the Nuremberg Tribunal, with the aim of fully or partially rehabilitating Nazism and Nazi criminals; declarations that actions of countries participating in the anti-Hitler coalition were criminal, and also the public approval and denial of Nazi crimes against peace and the security of humanity shall be punishable by a fine of up to 300,000 roubles, or up to three years imprisonment.) Law project number 197582-5, in Reference KoposovKoposov 2010)
If the perpetrator of these crimes is a state official or if she uses the media to disseminate them, the fine would be raised to 500,000 rubles and the imprisonment to up to five years (Reference KoposovKoposov 2010). Yet it was still unclear how to translate its vast scope and overly general phrasing into usable legislation, and the Duma Legislation Committee sent the authors to another round of revisions (Ibid.). The Russian public learned of this document and its rejection only on January 14, 2010, from an article in the newspaper Vedomosti.Footnote 9 Yarovaya reportedly stated that a new and improved version of the bill would be ready by mid-January.
The new version was submitted to the Duma on April 16, 2010, and it briefly stated: “Approval or denial of Nazi crimes against peace and the security of humanity as established by the Verdict of the Nuremberg Tribunal shall be punishable by a fine of up to 300,000 rubles or up to three years imprisonment” (Reference KoposovKoposov 2010). Although it was significantly shorter, the law proposal remained obscure and continued to rely on the Nuremberg judges for clarifications.
The choice of the Nuremberg verdict may seem legitimate and difficult to argue with—indeed, in order to gain legitimacy, Yarovaya and other sponsors of the law have noted that similar laws exist in other European countries, hinting at laws against Holocaust denial.Footnote 10 Yet Reference KoposovNikolay Koposov (2010) argues not only that the verdict serves as a cover for the law's unwritten goals—to prevent charging Russia with the responsibility for starting the war, for the war crimes of the Red Army, and for the atrocities of the Soviet occupation—but also that this choice produces various contradictions that make it difficult to achieve these goals. First, Nuremberg did not discuss the Red Army or the Allies’ actions, and so the law in fact does not protect one from claiming Russia's responsibility for crimes during World War II. Second, some historical events mentioned in the verdict have since been revealed to be different. One known example is the massacre of Polish officers in Katyn in 1940 that was inserted into the Nuremberg verdict by the Russian persecutor as a Nazi crime and yet that was revealed to be a crime Russia admitted to in 1992 (Ibid.).
Third, the Nuremberg verdict has different categories for Nazi crimes than those used by the authors of the Russian law (Reference KoposovKoposov 2010). The Nuremberg Tribunal created three categories of crimes: crimes against peace, war crimes, and crimes against humanity. The Russian law, on the other hand, mentioned crimes against the security of humanity, and it is unclear whether they are included in Nuremberg's crimes against peace or against humanity. If they are not included, it is not certain that a law that does not include crimes against humanity can pertain to Holocaust denial. Moreover, as the Russian version does not include the category of war crimes, it may leave out the denial or justification of Nazi crimes in Russia (Ibid.). In addition, it is unclear what would qualify as a crime: Is stating that Russia is responsible for the Katyn massacre a crime, or mentioning the crimes of Stalinism a violation of the verdict? (Ibid.).
With a diminishing civil society in Russia and the closing of media outlets in favor of a governmental news agency, the domestic public debate on the proposed law was limited, given that the central outlets are saved for the ideology of Putin and Medvedev (Reference Evans, Evans, Henry and SundstromEvans 2006; Reference HendersonHenderson 2011).Footnote 11 Social-media networks in Russia did host debates and called for the firing of those responsible for antidemocratic legislation (Reference GlushkoGlushko 2013), yet it was not domestic debates alone that eventually determined the fate of this law, but rather the international context that shapes Russia's foreign policy. Since the height of the debate in 2009, the relationships of Russia with Poland and the United States warmed for a period of time in 2010–2012, in an atmosphere that did not accommodate an aggressive memory politics, and Putin and Medvedev distanced themselves from the law proposal (Reference KoposovKoposov 2011). The law was put aside and not discussed in the Duma. Its supporters, however, continued to propose new versions in 2012 and 2013 until a more suitable international context—hostility between Putin, Poland, and the United States in light of Russian aggression in Ukraine—enabled the rapid approval of the law on time for the 2014 anniversary of the Allied victory in the war.
In June 2013, Yarovaya revived the 2010 version of the negation of the Nuremberg verdict by sponsoring a law against the dissemination of “denial of the sentence passed by the international military tribunal as well as the denial of the fact that the actions of the anti-Hitler coalition were aimed at preserving the international peace and security.” This version also criminalized the “distribution of knowingly false information about the actions of the Allied armies connected with charges of various crimes, including the artificial creation of evidence.”Footnote 12 The penalty was similar to the 2010 version. Yarovaya told the paper Zwesty that the draft had undergone the necessary changes the Duma required in 2009 and now includes more precise definitions. The newspaper KM again commended her law proposal, which it said makes it “harder for historians to falsify history” (Reference GortinskayaGortinskaya 2013). The newspaper also held an opinion survey on the question, “Should the negation of USSR victory in the Great Patriotic War be punishable?” 83 percent answered yes.Footnote 13
In addition to criticism by some of the Russian historians and their supporters in the West, Russian civil society publically opposed the revived law, which it saw as a direct response to a post by human-rights blogger Leonid Guzman, who compared the Nazi SS troops to Stalin's SMERSH.Footnote 14 Nikolai Svanidze, a journalist and member of the Civic Chamber of the Parliament—Putin's version of a civil society initiative—said that Yarovaya offers a ban of criticism against Stalin, the leadership of the Red Army, and of the Allies’ armies.Footnote 15 Yet in January 2014 Yarovaya's law was pushed forward after a media-poll scandal during Russia's 70th anniversary of the lifting of the Nazi blockade of Leningrad by the independent opposition-leaning television channel Dozhd. The poll asked if Leningrad should have been surrendered to the Nazis in order to save its residents’ lives.Footnote 16 The provocative question invoked outrage on mass media and social networks and prompted a renewed interest in the law—and a ban of Dozhd.Footnote 17 Yarovaya mobilized the controversy to urge the processing of her law proposal as a new article in the Penal Code. The law's first reading was approved unanimously on April 4, 2014, and rushed through a second and third reading to be fully approved on April 23, 2014.Footnote 18 Yarovaya told the press that the law was especially crucial in light of the political crisis in Ukraine, which according to her was launched and supported by radicals and neo-Nazis.Footnote 19 Putin expanded this reference to external political actors in 2015, stating in March that politicians from other nations make attempts to rewrite history in order “to undermine the power and moral authority of modern Russia and deprive it of the victor nation status, with all the consequences that would follow in international law.”Footnote 20 He was hinting at post-socialist countries that were occupied by the Nazis with varying degrees of collaboration before being occupied by the Soviet Union.
To summarize, the Russian memory law was proposed alongside other measures to control the dominant view of Russia's role in the Second World War following a decade of contestations within and outside the country. The law had passed five years after its initial proposal, in a timely domestic and external atmosphere. Although it has not yet been enforced, the occurrences that surrounded the process of legislation can indicate that it was quite successful in its task of limiting public debate and excluding critical voices within the country. Its ban of any views that tarnish Russia has already narrowed public debate even before the law was approved, through banning a media channel that held a survey on a revisionist view of the war. The law proposal was seen by civil society leaders as a direct sanction against their critical views, and the legislators noted that the effort was directed against post-socialist countries as well. While the latter are less likely to be directly affected, the vaguely phrased law carries for Russian citizens a highly threatening penalty, which multiplies if they use the media to express their views on the past at issue. It therefore has a chilling effect even before it has been enforced that may prevent civil society groups, historians, intellectuals, and media channels from publically expressing critical opinions on the past. Such chilling effect was also discussed by the critics of the Israeli memory law, which follows.
The Israeli “Nakba Law” (2011)
While the Russian case of memory legislation revolved around the role of a previous authoritative regime in events that have already ended, the Israeli case concerns events in the ongoing conflict between Israelis and Palestinians and the role of an enduring democratic state. The interpretation of the past in an ongoing conflict carries higher stakes for the present and future than in post-conflict cases, as the side deemed responsible for the beginning of the strife—which many in the region see as the 1948 war—may be charged with greater redress in any future resolution. As a resolution to this prolonged conflict is not in sight, the legitimacy of each side is at risk, and so a “memory war” on the 1948 war has been in progress since its 50th anniversary in 1998 (Reference HillHill 2005; Reference MasalhaMasalha 2005; Reference RamRam 1998, Reference Ram and Morris2007). Unsurprisingly, the zero-sum construction of national narratives, Israeli and Palestinian, regarding the memory of the 1948 war mirrors the rival sides and works to reproduce the conflict (Reference GoldfarbGoldfarb 2011; Reference GutmanGutman 2011). Jewish Israelis celebrate the 1948 war every May as the War of Liberation or War of Independence in a national holiday, while Palestinians within and outside Israel commemorate it as Al-Nakba, the catastrophe of displacement and dispossession. As mentioned above, Israeli memorial-day laws do not mention Palestinian citizens, who make up 20 percent of the population. However, the official Israeli national memory of the 1948 war began to show cracks in the late 1970s and 1980s with the publications of Jewish-Israeli revisionist historiography and social-science research (Netz-Zhangot 2011; Reference RamRam 1998). These cracks deepened in the 1990s, when peace negotiations gave room to a more critical view of the Zionist national myths, and counterintuitively continued to expand in the following decade despite growing national sentiment and violent escalation in the conflict (Reference Ram and MorrisRam 2007). In the 2000s, the retelling of 1948 has spread to additional academic disciplines such as geography, literature, film, political science, and architecture. Jewish-Israeli artists and filmmakers who take part in the global interest in post-colonial identities have brought the Nakba to local and international art venues and film festivals, and young best-selling authors conveyed it to the mainstream Israeli reader. Human-rights associations and activist groups have themselves learned about and distributed within the radical left political community both the knowledge of the historians and memory activists as well as the message of dealing with this past.
Toward the end of this decade, a proposal to ban Nakba commemoration during Independence Day or the day of the establishment of the state of Israel was discussed in the Israeli Parliament, the Knesset. A revised version of this proposal has passed after heated debates in 2011. In between these points in time, the memory war on 1948 exploded into the center of the Jewish Israeli-dominated public debate in Israel, and from a “public secret” (Reference StolerStoler 2009) the Nakba became widely known and discussed in Israel, although not acknowledged or redressed (Reference GutmanGutman 2011; Reference Jamal and BsoulJamal & Bsoul 2014).
The law was first proposed in 2008 by MK Alex Miller from the coalition's far-right party Yisrael Beiteinu. Miller's proposal criminalized commemoration of the Nakba during Independence Day or the day of the establishment of Israel, punishing individuals who violate the law with to up to three years in prison. (Draft Bill Independence Day - The observance of Israeli Independence Day as a day of mourning 458/18). The proposal was preliminarily approved by the Ministerial Committee for Legislation and Law Enforcement on May 24, 2009, an act that provoked enraged responses across the political spectrum in the media and an appeal by ministers from the Labor party against the bill. The Israel Democracy Institute, an independent research center, called the bill “anti-democratic, unconstitutional, and extremely detrimental to freedom of expression and to peaceful demonstration in Israel” and stated that if it passed, “it is not likely to increase the ‘loyalty’ of Palestinian citizens of Israel, but rather could lead to an increase in separatism and extremism among this population” (Reference Mordechai and KonfinoKremnitzer and Konfino 2009). A small Jewish-Israeli NGO named Zochrot (“we remember” in Hebrew, in plural female form) that since the early 2000s worked to disseminate Nakba memory among Jewish-Israelis, was asked to respond to the bill in an op-ed on the mainstream news Web site Ynet.Footnote 21 These and other responses to the bill elaborated on what the Nakba is, testifying to the poor state of public knowledge about it when the law was first discussed. In later responses to the legislative process, such elaboration no longer appears, suggesting that it is no longer needed, as the general public has become informed about the Nakba.
The proposal was rejected, but the Ministerial Committee for Legislation and Law Enforcement discussed amendments to it that instead of incarcerating individuals would fine state-funded institutions that “mark Independence Day or the day of the establishment of the State of Israel as a day of mourning” or that “reject Israel's existence as a Jewish and democratic state; contain incitement to racism, violence, or terrorism; support armed struggle and terrorism by enemy or terror organizations against Israel; or support acts of vandalism or physical desecration that dishonor the Israeli flag or the symbol of the state” (Reference GlickmanGlickman 2009). The authority to impose the fines is based on a ruling from the Finance Ministry's legal counsel and on expert opinions from the Justice Ministry and Finance Ministry (Reference HartmanHartman 2011).
From a legal perspective, the law provides a semi-legal authority to political actors to evaluate the impact of expressions on the public sphere in general, as well as the power to enforce sanctions on the speakers for expressions that are themselves legal according to common legal standards (Reference Ronen, Jabareen and Ozacky-LazarRonen, 2016). Moreover, the claim of whether the state can take back funding for events and actions that it deems unwanted does not stand on a solid ground here, as the law states that public commemoration of the Nakba is not welcomed whether it is funded by the state or not, and that there should not be a connection between the funding of an action and the authority to enforce penalties (Reference Ronen, Jabareen and Ozacky-LazarRonen, 2016). In other words, the penalty does not fit the “crime.”
None of the law's versions included the word “Nakba,” but referring to acts of mourning during Independence Day points directly to a post-1948 tradition of Palestinian citizens of Israel, who visit their destroyed village lands on the national holiday, because it was the only time during the year they were allowed to move freely throughout the country in the martial law period (1948–1966) (Reference Ben-Ze'ev, Lien and NerlichBen-Ze'ev 2004; Reference MasalhaMasalha 2005). According to the Israel Democracy Institute, the law was directed specifically at preventing financial support for Nakba Day events conducted in the Arab-Palestinian sector by entities that receive money from the state (Reference CohenCohen 2014).
The public debate mounted again in 2011 when a revised version of the bill was approved in a second and third reading in the Constitution, Law, and Justice Committee of the Knesset on March 14, 2011, and shortly thereafter passed in the Knesset plenum to become an amendment to the Budgetary Foundations Law after a heated discussion among the MKs.Footnote 22 During the same Knesset plenum, on March 22, another contested law was discussed and approved that implicitly discriminates against Palestinian citizens: The “Acceptance Commissions” bill that allows small local communities to set up admission committees, could now legally prevent Palestinians from living in small community localities.
Thirty-seven MKs voted in favor and 25 voted against the Nakba Law. Half of the MKs, 60 out of 120, avoided the decision by not showing up for the vote, including central members of the coalition, Prime Minister Benjamin Netanyahu and Finance Minister Yuval Steinitz. These absentees were criticized in an editorial in the left daily Ha'aretz and called upon to “wake up before it's too late,” as their silence “encourages the instigators of racism.”Footnote 23
What was at stake here? During the committee's vote MK Miller called the legislation “an important proposal that was written in the spirit of the Israeli Declaration of Independence 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” (Jerusalem Post, March 15, 2011, my emphasis). Arab-Palestinian MK Hanna Suweid from the opposition far-left Hadash party asserted that the law would actually damage Israel's democracy by limiting the freedom of expression and putting 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 Israel as a Jewish democratic state is an imposition of guilt, collective guilt without any proof” (Ibid.).
Both Miller and Suweid judged the law in relation to Israel's democratic character, but each emphasized 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. MK Yitzchak Herzog (Labor) noted in his criticism that the law also “highlights a subject that's less and less common in the Arab public and gives it greater importance” (Jerusalem Post, March 15, 2011).Footnote 24
Various intellectuals and prominent public figures, including laureates of the prestigious national award, the Israel Prize, petitioned against the Nakba Law, and responses of left-wing and Palestinian politicians in Israel (as well as some center-right MKs) condemning it filled the newspapers. Most of these responses called the amendment anti-democratic, harmful for free speech, and one that silences Palestinian citizens’ history. One op-ed, however, titled “The Palestinian Narrative Has Won,” by Ha'aretz contributor Oudeh Basharat, a Palestinian citizen, stated that the law at least recognized that the Nakba exists and expressed a wish that it would start a discussion on what really happened to Palestinians in 1948.Footnote 25
The legal organization of Palestinians in Israel, Adallah, and the Association for Civil Rights (ACRI) appealed to the Supreme Court, arguing that the law is unconstitutional (HCJ 3429/11; delivered January 5, 2012). But the court used an 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” (Ibid).Footnote 26
The majority of Jewish-Israelis, however, supported the law, according to Israeli academic surveys: Only 27 percent of Jewish-Israelis supported the public commemoration of the Nakba in 2011 in comparison to 82 percent of the Palestinian citizens in 2010 (Reference SmoohaSmooha 2013).
Like the Russian case, the Nakba Law was an attempt to use memory legislation to fortify an ideological consensus regarding a positive state conduct in a war that is seminal to its national identity and legitimacy today by silencing critical voices within the country. These voices in Israel were, however, not only of a political opposition groups, but primarily of the national minority of Palestinian citizens. Viewing the Nakba Law as the state's reaction to the growing awareness and visibility of Palestinian history and memory of 1948 within Israeli society is supported by the fact that a similar bill was brought to the table in the previous three Parliaments by right-wing MKs Zvi Handle and Arye Eldad but was not taken any further,Footnote 27 suggesting that there was no need to worry about Nakba commemorations before, although Palestinians in Israel marked Nakba Day and Land Day annually then as now. Yet as academic, artistic, and civil society engagement with the Nakba and the calls to include it in the collective memory and public debate about the conflict grew, the state used legislation to actively block them. Unlike the Russian case, the results were mixed, as in addition to limiting public debate and citizens’ rights, the Nakba also gained wide publicity within Israel instead of being silenced.
During the legislation process, the term “Nakba” became a common idiom, as it appeared on the front page of every Israeli newspaper and in the headlines of national television news programs. It also proliferated through other mainstream channels: best-selling Jewish-Israeli author Alon Hilu's novel House of Rajani, which critically discusses Jewish-Arab relations and land ownership before 1948, won the prestigious Sapir literary award (Yediot Achronot 2008); a play based on a 1969 novella by Palestinian author Ghassan Kanafani, The Return to Haifa, was shown in the national Cameri Theatre; and nonfiction books, as well as documentary and feature films, by both Jewish and Palestinian filmmakers, came out in the second half of the decade despite heated public debate and right-wing protest. No less controversial and polarizing, the Nakba has become visible to the majority of Jewish-Israelis (on the changing views of Jewish-Israelis regarding the 1948 war see Reference Nets-ZehngutNets-Zehngut 2011). Although the majority of Jewish-Israelis do not acknowledge the Palestinian suffering, it is known and became part of public debate on the conflict in mainstream channels (Reference Jamal and BsoulJamal and Bsoul 2014; Reference SmoohaSmooha 2013).
To be sure, the mobility and equality of Palestinian citizens of Israel have not changed—these have been in decline throughout the decade, as Jabareen demonstrates regarding political and legal rights (2012) (See also Reference PeledPeled 2006; Reference SmoohaSmooha 2013). But their collective representation shifted when their experience and national memory of the 1948 war entered the public debate in Israel.
Although the Nakba Law refers to institutional funding and not to individual imprisonment like its earlier version or the Russian case, and although it has not been implemented yet, it nonetheless presents a threat, or at least a chilling effect on cultural, educational, or municipal institutions that are asked by their publics to host commemorations of the Nakba, among them universities and bi-national Jewish-Arab schools. Right-wing NGOs and politicians repeatedly called for implementing the law starting May 2012, around Independence Day, in their continuing efforts to exclude Palestinian citizens and their Jewish supporters, whom they perceive as disloyal to the Jewish state.Footnote 28 In June 2012, MK Miller proposed a new version of the Nakba Law, against the recommendation of the Knesset's legal adviser, Eyal Yanon, which fines academic institutions that host Nakba events. Such events began to be held annually in 2012 at Tel Aviv University and Hebrew University but were canceled or forbidden in Haifa University, which, like Hebrew University, has a large percent of Palestinian students. Held not during Independence Day but on or around Nakba Day (May 15), these events took place alongside right-wing protest, which sometimes heated up and led to police arrests.
Comparing the Russian and Israeli Memory Laws
The comparison of the Russian and Israeli cases of memory legislation raises common characters of such laws and their impact on democratic public debate:
1. Rather than preventative, memory laws were a reaction to group efforts to disseminate counter-memories to the state's dominant perception in order to prevent the risk of de-legitimatization of the nation-state. However, in both cases they were a disproportional reaction to relatively small opposition groups and were not very effective in controlling the truth about the past. In Russia, the phrasing of the law and the contradictions in relying on the Nuremberg Verdict made it extremely threatening and at the same time difficult to enforce (Reference KoposovKoposov 2005). In Israel, the legislation initiative and processes brought attention to the contested past it sought to block, which was previously a relatively marginal phenomenon.
2. In both cases the memory law was used as a political tool of exclusion and silencing of a specific group or groups. The legislation was advocated and carried out by political parties in power who wish to guard and further disseminate nationalistic ideology. The laws were part of a larger effort by these groups to forge a memory war and conquer the contested past. This “war” included curricula reforms, historians’ debates, parliamentary commissions, and corresponding legislation or official statements. As such, in both cases a legal technique—legislation—that can be employed for democratic inclusion was utilized by groups in power for the exclusion of oppositional groups or a national minority from public debate and political participation. The law was intended to control public deliberation on the past and limit the variety of experiences, memories, and voices to those that match the state's preferred positive view. In practice, the laws, whose different penalties were not yet enforced, were effective to different extents in blocking the expression of contrary views on the past. In both cases the law carries a chilling effect that in itself limits the forbidden views or actions from being expressed in public. In addition, exercising sanctions on the media during the process of legislation in Russia and further diminishing the collective rights of a national minority in Israel, may amplify this effect on the targeted publics. The Russian law also has increased penalties for the dissemination of the banned views through the media, which directly limits freedom of the media and freedom of speech. Despite achieving the goals of controlling and narrowing public debate, both states had to wait for the right time and revise the original versions of the laws, in order to gain legitimacy for their intervention. Let us turn from these pertinent cases to a case of a “failed” memory law, in which a lack of public legitimacy led to a cancellation of the law.
The French “Colonialism Law” (2005)
By the early 2000s, France already had three memory laws of the first type: the Gayssot Act that criminalizes Holocaust denial, enacted in July 13, 1990 (expands the freedom of the press law from 1991); a law that acknowledges the Armenian Genocide from January 29, 2001 (denying it became a criminal offence in 2006); and the Taubira Act of May 21, 2001, which recognizes slave trade as a crime against humanity. None of these laws, however, discussed a more recent and troubling past: the colonialization of Algeria that included mass killing and violent oppression (Reference LöytömäkiLöytömäki 2013).
What finally broke the silence in the realm of law was, paradoxically, a 2005 memory law of the second type that attempted to guard against such a break: a law that acknowledges the contribution of “repatriates” in the former French colonies in North Africa (Algeria, Morocco, Tunisia), as well as other parts of the world (Law 2005-158, passed February 23, 2005). In the context of Algeria, the law recognized the efforts of pied noirs (French settlers in the colonies) and Harkis (the 200,000 Muslim Algerians who fought with the French in the Algerian War. Reference CrapanzanoCrapanzano 2011). The law passed in a parliament led by President Jacques Chirac and his right-leaning party the Union for a Popular Movement (UMP).
A great controversy arose regarding section 4 of the law, which required high-school curricula to “recognize in particular the positive role of the French presence overseas, notably in North Africa.” 44,000 people signed petitions calling for the cancelation of section 4, including a thousand or so historians, intellectuals, and cultural figures, and parliament members from the Socialist and Communist parties publically condemned it. One petition stated that the law enforces an official lie about massacres that sometimes went as far as genocide, as well as about slave trade and the heritage of racism. France's most notable historians organized under an initiative, by renowned historian and public intellectual Pierre Nora, titled Liberté pour l'Histoire (“Liberty for History”) and published an appeal against the law. “It is not up to the state to say how history should be taught,” explained historian Pierre Vidal-Naquet (in Reference HenleyHenley 2005). The state should not be allowed to intervene and impose “an official version of history, in defiance of educational neutrality” and the freedom of historical research or education, Gérard Noiriel and other scholars maintained (in Reference HenleyHenley 2005). Education rather than the law should write history or determine an imperative to remember, the historians argued (Reference Garton-AshGarton-Ash 2008; Reference HenleyHenley 2005).
Left-leaning parliament members protested the damage to freedom of speech and criticized the attempts of interest groups to “confiscate history for their own ends,” in the words of Noiriel (Reference HenleyHenley 2005). According to the Guardian, the section was apparently tabled by MPs with close ties to France's community of former Algerian settlers lobbying for Harkis and pied noir rights. The antiracism organization MRAP said that above all the law showed “contempt for the victims” (Reference HenleyHenley 2005).
The domestic outrage was joined by a crisis in foreign relations: Interior Minister Nicolas Sarkozy had to cancel a preplanned visit to the French Caribbean in fear of mass protest, and the French ambassador to Algeria made a special gesture by attending for the first time the official commemoration ceremony of the massacre in Setif on May 1945, in which tens of thousands of protesting Algerians were killed by the French colonial army (45,000 according to the official Algerian version, or 15,000–20,000 according to French historians (Reference SchofieldSchofield, 2005). The gesture was accepted, yet the President of Algeria Abdelaziz Bouteflika declared that his country was still waiting for a French admission of all its actions during the colonial government and Algeria's war of independence (Ibid.).
In December of that year, President Chirac asked for a reexamination of the law that according to him was “dividing the French,” which would lead to a new version (BBC News, January 4, 2006). Later Chirac ordered the removal of section 4 of the law. But the protest already sparked a larger criticism against memory laws in general. In January 2006, France's Constitutional Council, its constitutional court, stated that laws “should serve to set mandatory duties and rights, not to be an incantation” (Reference WartanianWartanian 2008). Legal scholar Stéphanie Gruet interprets this statement as implicitly critiquing France's excessive use of memory laws (Ibid.), which indeed was followed by termination of memory legislation in 2012. On February 28 the Constitutional Court found the law against the denial of the Armenian genocide, which brought about a crisis in French-Turkish relations, to be unconstitutional and declared that there will be no further memory laws in the future (Reference CurranCurran 2015).
Reference WartanianRaffi Wartanian (2008) finds the characteristics of memory laws described in the previous section in all of France's memory laws. The legislation of memory laws of both types in the last decade and a half was reactive, disproportionate, and triggered by specific occurrences and powerful interest groups, he argues, and these laws were a patch rather than a solution to the contemporary ailments of racism.
However, unlike the three memory laws that passed in France before 2005 that protect against the denial of crimes against humanity and carry only a declarative value, Wartanian maintains, section 4 of the 2005 Colonialism Law fails to acknowledge crimes—the crimes of French colonialism in Algeria (2008). It was created, rather, to promulgate the silencing of these crimes through the pedagogical infrastructure of the state, thus carrying a practical impact on future generations. This analysis of the French Colonialism Law suggests that like the Israeli Nakba Law, the Colonialism Law was a new step in fortifying the official national memory against the counter memory of colonial violence, something that was not deemed necessary before, when this memory was simply ignored through exclusion from the official calendar of memorial-day laws.Footnote 29 In 2005, the exclusion of French colonial violence in Algeria and North Africa from the calendar was apparently not strong enough to stop the surge in calls to publically address this past, and an active enforcement of the national memory that excluded these memories came as the state's reaction in section 4 of the law.
However, unlike the Israeli and Russian memory laws, section 4 did not outlive the public outcry of historians and intellectuals who condemned its anti-democratic character, and was canceled by the president out of fear that it would further divide the French and steal votes from his party. This fate of the French “Colonialism Law” contributes interesting aspects to the concluding discussion of memory laws and democratic politics.
Discussion and Conclusion
After reviewing and comparing two prominent case studies of memory laws and one “failed” law, I conclude with a general discussion of what the present study of memory laws contributes toward understanding the tension between nation-state memory and the law with regard to public debate and minority rights. First, in both prominent and failed cases, memory laws were constructed by groups in power in reaction to an atmosphere of public contestations from the margins. However, the French cases add interesting diversity to this finding, as the original initiators of the “Colonialism Law” were not legislators from the ruling party but nongovernmental “carriers of memory”: groups associated with former Algerian settlers lobbying for Harkis and pied noir rights in France (Reference HenleyHenley 2005). In comparison to the “top-down” attempts of the political leadership in Russia and Israel to create ideological consensus by blocking marginal counter-memories, this case of mobilization “from below” of a memory law resulted in the rejection of a memory law as antidemocratic in France. A similar mobilization of memory legislation from below took part in Spain regarding the public airing of the civil war and Franquist dictatorship, which resulted in an inclusive memory law (Reference BoydBoyd 2008; Reference Jerez-Farrán, Amago, Jerez-Farrán and AmagoJerez-Farrán and Amago 2010). Future research should assess the role of nongovernmental actors and civil society groups in advocating for and against a memory law that advances a group's view of the past over other groups’ perceptions. Such research may examine whether the involvement of nongovernmental groups in the legislation of memory laws may shape a more democratic process and public debate than a state ideological endeavor that can more successfully narrow the boundaries of the national public debate.
Second, memory laws often led to the opposite outcomes than those anticipated by lawmakers. Instead of controlling and limiting the publicity of counter memories, the bitter public debates that surrounded the legislation processes in all three cases widely disseminated these memories. Instead of increasing solidarity around a majority's view of a shared past as a basis for social stability and national identity, memory legislation brought about debates that threatened to further polarize the political and national majority and minority around the contested past, especially in Russia and Israel. Advancing democratic principles, another goal that was presented to justify memory legislation, introduced raging refutations that deemed the memory laws anti-democratic—in France such criticism resulted in the cancelation of the law—and the laws indeed seemed to narrow public debate instead of opening it to greater plurality and diversity in line with democratic principles.
From the comparative analysis of the roles assigned to memory laws and their practical outcomes and consequences we can draw more general conclusions on the function of memory laws in the last decade, to be examined in future research of additional case studies. As national memory becomes a central site for political participation and citizenship in Europe and beyond (Reference Rothberg and YildizRothberg and Ildiz 2011), memory laws can reinforce existing mechanisms of inclusion of minority groups or groups victimized by state-sponsored violence. However, they more often are used—as the three cases indicate—to strengthen mechanisms of exclusion: of Palestinians and their left-wing Jewish supporters in Israel; of victims of the Algerian war and colonial violence in French colonies and within the country; and of a political opposition and different political, national, ethnic, and religious communities that suffered political and military violence under Communism and from the Red Army during the Second World War.
This raises another issue, on the targeted audiences of memory laws, within and outside the legislating country. As seen in the Russian and French cases, domestic calls to revise the official memory of violent histories to include minority experiences were joined by diasporic communities (like Jews or Armenians in France), and previously occupied states (Algeria and post-socialist countries in Central and Eastern Europe). Additionally, international bodies (ICTJ, the U.N., or the European Parliament) carry on truth-seeking operations and call for the opening up of national narratives to include and integrate victims’ experiences and views. Memory laws are one of the ways in which the states I studied dealt with such calls. However, as we have seen in the Russian and French cases, citizens of other countries whose experiences and memories the laws ban, are protected by their state governments, affected mostly through foreign policy and diplomatic relations with the legislating country. The condemned past continues to be discussed in public in these countries, often forming the basis for a new post-transition national identity. The effect of memory laws on the citizens of the legislating country who hold counter memories forbidden by law, however, is more problematic, as the law's criminalization of such views has concrete stakes and may result in silencing.
And yet, the comparison teaches us not only about state power to silence citizens through one of its most forceful responses to contestations—legislation—it also reveals the limits of this power, which cannot stop international and domestic calls to include counter memories of violence in the official collective memory. Moreover, it shows that it was a prolonged silence of the violent past at issue in all cases that brought about the demands to address it publically. The government used a memory law as means to block such demands and fortify the exclusion of certain groups—some that experienced violence and others that are politically opposed to the government—from publicity and participation in public debate. The demands to air the past, however, were not subsumed by these memory laws. In France the popular outcry brought a cancelation of the contested article of the law. It did not result in a different and inclusive law, however, or in a state acknowledgment of colonial violence. This again clarifies the range of legal interventions through legislation: I proposed that memory laws in France, Russia, and Israel present an escalating degree of minority exclusion in comparison to the general omission of minorities’ memories in the national calendar of memorial days. These degrees of exclusion—from omission to active banning—demonstrate the exclusive and antidemocratic potential of the utilization of memory laws in democracies.
