Anne Frank, 1940.
Wikipedia Commons

In April 2015, Ukraine’s parliament adopted a series of so-called decommunization laws, which make it illegal to deny the “criminal nature” of the Soviet regime. The most controversial provision is one that recognizes veterans of the Ukrainian Insurgent Army as “fighters for Ukraine’s independence,” entitling them to government benefits and antidefamation protection despite their role in ethnic cleansing during World War II. Far from anomalous, such politically motivated laws represent just the latest examples of Europe’s attempts to legislate historical memory.

The trend is widespread. As of 2015, for example, it is illegal to deny the Holocaust in 16 European countries. Seven additional states impose generic prohibitions on the denial of genocides, war crimes, and crimes against humanity. A few more have no such legislation but nevertheless prosecute Holocaust deniers under hate-speech statutes. Laws such as these are a decidedly post–Cold War phenomenon; the overwhelming majority of them have been ratified in just the past two decades. Similar laws regarding the Armenian Genocide and the Holodomor, the 1932–1933 famine in Ukraine, are newer still.

Some of these injunctions are not particularly contentious. Holocaust deniers exist only on the fringes of political life, so Holocaust denial legislation has faced little resistance. When the laws concern events for which a wider range of interpretations is still possible, such as the actions of the Soviet Union, the legislative process has been more fractious, pitting differing political agendas and perspectives against one another globally. 

In those cases, legislating memory has become an instrument of statecraft in Europe, wielded as a moral cudgel by politicians intent on fighting today’s battles through the events of the past. This is worrisome. Memories often diverge, and politicians tend to view the past through the prism of present-day expediencies. Legislating memory thus risks driving a wedge between states, harming integration efforts and attempts at compromise and negotiation.

Fireworks explode over the Victory monument during the Victory Day celebrations in Moscow, Russia, May 9, 2015.
Host Photo Agency / RIA Novosti / Courtesy Reuters

WHOSE MEMORY IS IT, ANYWAY?

Statutes dealing with historical memory are a subset of laws concerned with speech and public conduct. They can criminalize the expression of contrary views, specifying penalties from fines to imprisonment, or they can be primarily symbolic, as in the case of declarative resolutions lacking punitive mechanisms. 

There are two types of historical memory laws: those that emphasize howto remember and those that emphasize how notto remember. The former are proscriptive; they deal with events, such as the Holocaust, around which there already exists a wide interpretive consensus. Their purpose is to maintain public order by preventing people from violating societal norms. The latter address more contentious historical episodes. They are prescriptive, designed to promote a specific understanding of the past.

Legislating memory has become an instrument of statecraft in Europe, wielded as a moral cudgel by politicians intent on fighting today’s battles through the events of the past.

Global and regional factors have driven the increase in such legislation. The rapid spread of democracy in the second half of the twentieth century allowed ordinary citizens to process and interpret historical events however they wished. In recent decades, the developed world has embraced the idea of an objective and universal human rights ethic, which has spurred governments to reconcile historical accounts with liberal commitments. Meanwhile, diaspora groups have become increasingly adroit at persuading host governments to recognize their historical grievances. At the same time, deniers and apologists are now more easily able to circulate revisionist views. Once furtive pamphleteers, they are now a perpetual Internet presence.

In Europe, where it is no longer possible to assume that a state-enforced ideology or collective memory will safeguard a particular view of the past, existential angst arising from growing societal heterogeneity has likewise contributed to the proliferation of these laws. Soon, in Europe, there will be no more living witnesses to World War II; already, private memories are being replaced by politicized histories.

The founding of supranational legal forums, such as the European Court of Human Rights (which became a full-time institution in 1998) and the International Criminal Court at The Hague (established in 2002), has also aided the legislation of memory by providing high-profile forums for adjudicating the past. The permanent standing nature of these bodies represents a new development; prior ones, such as the International Military Tribunal at Nuremberg or the International Criminal Tribunal for the former Yugoslavia, were organized ad hoc.

For its part, in an effort to deepen integration, the European Union has actively encouraged member countries to embrace convergent interpretations of the past. There are no EU-wide memory laws as of today, but the 2008 European Framework Decision on Combating Racism and Xenophobia mandated that member states criminalize the denial of recognized genocides and related offenses, although the vagueness of the rule has resulted in uneven compliance. Likewise, the Council of Europe’s Convention on Cybercrime adopted a similar, nonbinding, protocol in 2006.

In Europe, it is no longer possible to assume that a state-enforced ideology or collective memory will safeguard a particular view of the past.

The attempts to synchronize memory have, at times, played out unexpectedly. For instance, the EU mandated that postcommunist states needed to address the Holocaust prior to accession. But once they became members of the EU, many in these states began clamoring to have the so-called totalitarian twins of Nazism and Soviet communism, especially its Stalinist variant, evaluated more equitably. The 2008 Prague Declaration on European Conscience and Communism, for example, signed by the anticommunist leaders Vaclav Havel, Joachim Gauck, and Vytautas Landsbergis, called for Soviet crimes to be assessed according to the same standards as those used to condemn Nazi Germany.

People visit former concentration camp Mauthausen during an official celebration commemorating the 70th anniversary of the end of World War Two in Vienna, Austria, May 10, 2015. 
Dominic Ebenbichler / Courtesy Reuters

FEW SAINTS, MANY SINS

In the postcommunist world, memories diverge—particularly when it comes to assessments of the Soviet Union. As of 2015, the Czech Republic, Hungary, Latvia, Lithuania, Poland, and Ukraine all explicitly ban the denial of communist crimes alongside the horrors of Nazism. This overt linkage is meant to harness the recognition and revulsion associated with the Holocaust to inculcate a parallel view of Soviet totalitarianism. Russia, in contrast, passed a law in 2014 making the denial of Nazi crimes and the “misrepresentation” of the Soviet Union’s role in World War II a criminal offense.  

Indeed, under Russian President Vladimir Putin, the Kremlin has promoted a triumphalist view of the Red Army’s contribution to defeating fascism to communicate that Russia is an inseparable part of Europe, current political estrangement notwithstanding. As Russian Foreign Minister Sergei Lavrov is fond of reminding Western leaders, “Freedom came from the East.”

Other former Soviet and Warsaw Pact states espouse an increasingly divergent view. One of the newly adopted Ukrainian laws, for example, asserts that both the Germans and the Soviets committed “crimes against humanity and against mankind, war crimes, and crimes of genocide” on Ukraine’s territory between 1939 and 1945. Similarly, in April 2015, Polish legislators moved the celebration of Victory Day from May 9, the date chosen by the Soviet Union and on which the holiday is still observed in Russia, to May 8, the date recognized in western Europe. “Why should we celebrate a holiday Stalin imposed on us?” was the prevalent feeling.

Disparate memories occasionally alienate eastern Europe from western Europe as well. Consider the successful push, in 2009, for the Organization for Security and Cooperation in Europe to pass a resolution effectively equating Stalin’s crimes with those of Hitler. Although a number of Western leaders praised this development, others voiced concerns that it represented an effort to construct competing hierarchies of victimhood. Many also worried that linking Soviet communism with National Socialism would allow eastern European populations to avoid culpability for abetting Nazi atrocities.

Nonetheless, the belief that Soviet offenses need to be more fully recognized has gained traction in Europe, championed by postcommunist states now firmly ensconced in the architecture of the EU. In 2008, the European Parliament declared that August 23, the date of the signing of the Molotov-Ribbentrop Pact, the treaty of nonaggression between Germany and the Soviet Union, would henceforth be commemorated as the European Day of Remembrance for Victims of Stalinism and Nazism.

Debates over legislating the past are not confined to Europe. The debate in the United States over the meaning of the Confederate flag is a case in point. Each country and geographic region has its own memory issues, but those of Europe have particularly wide impact, given the global implications of the squabbling. The demise of the sweeping ideological narratives that bifurcated Europe in the twentieth century resulted not in a vacuum but in the furious advent of historical particularity. The past has remained politically puissant in Europe, where geopolitical alliances increasingly reflect the resurrected and reimagined fault lines of a mutually shared, but alternately interpreted, history. In legislating historical memory, there are few saints, but many sins.