Protecting or privileging historical narratives through law and its limits

The countries affected by the Holocaust have long wrestled with the challenges of confronting the past and with controversies surrounding their complicity for the crimes planned and carried out by Nazi Germany. At the same time, some of the historical figures involved, turned out to be the ones whose service and contribution to their country merit rehabilitation with their reputation restored. This process of rehabilitation of such individuals (but also whole nations) is often conducted with the use of memory laws that serve as legal basis for securing certain historical narratives and whitewashing the Past. In particular, Poland‘s attempt to criminalise the attribution of wartime Nazi Germany crimes to the Polish state or nation (2018) cane serve as a telling example here. Against this backdrop, this presentation intends to explore the problem of rehabilitation of historical figures conducted with the use of memory laws.

In some countries, the “good name of the state/nation“ is protected under criminal law. Such provisions generally pose a threat to the freedom of speech. The paper analyses cases when such laws are used as memory laws to promote a certain historical narrative or eliminate other narratives from public discourse. The paper presents this phenomenon with the example of two countries where such criminal provisions have been used as memory laws: Poland and Turkey. While the historical and political context in both countries is different, in both the wide scope of the criminal law provision allows for using it with such intention. At the same time, how and in which contexts these provisions have been used against persons expressing particular historical narratives, depends on the political situation and on the level of independence of the judiciary and prosecutors. The paper asserts that in states with weakened rule of law mechanisms many different provisions can be used as memory laws.

The paper demonstrates how specific elements of deliberate assault on democratic standards contribute to limiting freedom of expression in the context of historical policy. First, it explores how subordination of constitutional court disables independent review of legislation limiting freedom of expression. Second, it explains how subordination of prosecution service leads to discriminatory legalism on an example of legal harassment of individuals who share in public historical narratives that are inconsistent with historical interpretation that authorities prefer. Third, it discusses the impact of a broader turn away from and direct challenging of international human rights law standards. This paper will draw on examples from Poland and Hungary. The paper evaluates these developments from the human rights law standpoint.

Laws criminalizing genocide denial are often construed as a manifestation of the “militant democracy“ concept denying certain democratic rights to the enemies of democracy. The ECtHR that accepts the criminalization of Holocaust denial is considered as applying a “militant“ conception to the freedom of expression, association, and research. The paper sheds light on what the “militant democracy“ concept adds to the ECHR and what its exact relationship to these original memory laws is. Based on the ECtHR case law review, it argues that “militant democracy“ is more than a theoretical concept summarising “militant“ provisions of the ECHR, but that it is considered to possess distinct normative weight. The paper finds that some of the ECtHR case law‘s flaws can be explained by the inherent weaknesses of “militant democracy“. The paper explores the limits the concept sets for the restriction of the freedom of expression in the name of democracy.

Images of genocide, mass graves and torn families come to mind when one hears the term ‘war crime‘. But does cultural heritage have similar legal rights? Is it protected by the Rome Statute? What lays in the future of cultural heritage protection against destruction? And where do the boundaries of law lie with regards to the rights of cultural objects? The purpose of this paper is to answer these questions by focusing on the relationship between cultural heritage, collective memory and law, looking into the 2016 International Criminal Court‘s (ICC) judgement in the Al Mahdi case and the analysis of the 2021 ICC‘s Policy on Cultural Heritage born in its wake, which will shape our perception of the cultural heritage protection in the years to come.