Law and Memory: Towards Legal Governance of History,
by Uladzislau Belavusau and Aleksandra Gliszczynska-Grabias
Reviewed by Jan Peczkis
As per this review, I reject double standards, and advocate equal rights for all. If Jews can have Holocaust denial criminalized, then the denial of ALL genocides should be criminalized, and critics should stop getting so hysterical about the Polish Anti-Defamation law. Conversely, since questioning of non-Jewish genocides is legal, and the Polish Anti-Defamation law continues to be trashed, then questioning the Holocaust should also be legal. Memory laws should either be for everyone, or they should be for no one.
MEMORY LAWS ARE A COMPETITIVE IMITATION OF THE FIRST MEMORY LAW–THE ONE THAT PROTECTED THE JEWS’ HOLOCAUST FROM ANY CHALLENGE
It is ironic that so many Jews gripe about memory laws, especially the Polish Anti-defamation law, when it was the Jews that initiated this whole process by pressing for laws that criminalize Holocaust denial. Furthermore, “Holocaust denial” has expanded: It has moved beyond just questioning the magic number of 6 million Jews, and now encompasses the questioning of other aspects of Holocaust orthodoxy. We hear about “Holocaust obfuscation” and “Holocaust distortion”.
Let us trace the history of memory laws. Uladzislau Belavusau and Aleksandra Gliszczynska-Grabias write, “…criminalization of Holocaust denial after World War II has transformed social reality and led to a global spread of memory laws in three ways.” (p. 8). They add that, “Holocaust denial laws have been followed by at least four–interlinked and not necessarily chronologically distinctive–streams of memory laws after World War II.” (p. 12).
Robert A. Kahn adds that, “Why the recent upsurge of genocide denial bans? Until 1970, prosecutions based on denial of historical facts were almost unheard of: since then, Holocaust deniers have been prosecuted in Canada and across Europe. More recently, the impetus to ban denial has spread to other genocides and historical acts.” (p. 343). Well, if the Jews can do it, then so can everybody else!
ALL MEMORY LAWS SHARE THE OBJECTIONS DIRECTED AGAINST THE POLISH ANTI-DEFAMATION LAW
Tomasz Tadeusz Koncewicz (pp. 253-on) goes on and on about the horrors of the Polish Anti-Defamation law. He waxes eloquent about how it mandates a particular version of history and stifles research. Fact is, exactly the same–and more–can be said about laws that criminalize Holocaust denial and other memory laws, as noted by the following authors:
Ionna Tourkochoriti comments, “Memory laws can serve to prescribe or proscribe an official version of historical truth. Using the mechanisms of state constraint against opinions that are contrary to this official version of truth can be very dangerous for individual and collective liberties.” (p. 151). She adds that, “Maintaining laws that criminalize the denial or trivialization of crimes against humanity, can have pernicious unintended consequences upon important constitutional freedoms such as academic freedom and the freedom of association.” (p. 173).
Uladzislau Belavusau and Aleksandra Gliszczynska-Grabias comment, “In that punitive form, memory laws impose limits on democratic freedom of expression, association, the media, or scholarly research.” (p. 1). They add that, “The dominant concerns of critics of memory laws are that such laws will lead to censorship, ‘thought police’ restrictions of freedom of expression and academic freedoms. These fears are not to be dismissed lightly…” (p. 15).
UNEQUAL JUSTICE IS NO JUSTICE: THE JEWS’ HOLOCAUST AND THE ARMENIAN GENOCIDE ARE UNEQUAL BEFORE THE LAW
Consider the infamous Perincek v. Switzerland case. The court ruled that banning denial of the Armenian genocide violates free speech, while banning Holocaust denial does not. The rationalization behind this two-faced policy was based on nexus: that nation-states that had “experienced the Nazi horrors” have a “special moral responsibility”. (Kahn, p. 329). The reasoning behind Perincek is lame. What realistic danger is there of Nazism making a comeback? (How far geographically does nexus go in the first place? Ironic to the Perincek argument, Switzerland was never occupied by Nazi Germany in the first place!)
Evidently, the Holocaust is above all other genocides. Just who has decreed that only the Holocaust imposes some kind of “special moral responsibility”? (Lobba, p. 128). And for how long? How many generations and decades must pass before this presumed “special moral responsibility” sunsets?
The geography of the argument is even lamer, and Kahn (p. 343) admits as much. He comments, “Conversely, there is only a ‘tenuous’ connection between Switzerland and the events of the Armenian genocide, the subject matter of the Perincek case.” (Kahn, p. 329). Really? What happened to the notion that genocides are crimes against humanity (such that the Armenian genocide is a crime not only against Armenians but against all humans [including the Swiss], just as surely as the Holocaust is a crime not only against Jews but against all humans)? Something is not kosher here. “An injustice to one is an injustice to all” evidently does not apply to non-Jewish genocides.
The double standard is palpable. Kahn (p. 347) identifies it as the double standard and uses this phrase. Lobba (p. 110) adds that, “The Chamber seemed to suggest that whereas Holocaust denial is a main vehicle of anti-Semitism, and thus requires constant vigilance internationally, denials targeting the Armenian massacre cannot be said to have the same repercussions.” (p. 125). Once again, Jews have special rights.
BANNING KNOWLEDGE OF THE NAQBA (NAKBA) IN ISRAEL WHILE BANNING DENIAL OF THE HOLOCAUST
Jeremie M. Bracka notes the following delicious irony, “Ultimately, the Israeli case is a striking example of the legal proscription of history and the politics of memory. Judicial engagement with 1948, and the legislative ban on Nakba commemoration, have been instrumental to enforcing a nationalist past, and an exclusive claim to victimhood. Pitted against the Holocaust Denial Law, Israeli society is at once commanded to sanctify the Holocaust, and to silence the Palestinian Nakba.” (p. 373). Those who are exorcized about the Polish Anti-Defamation law should turn their indignation against Israel.
MEMORY LAWS: NAZI CRIMES (AGAINST JEWS, THAT IS) ARE A BIG DEAL; COMMUNIST CRIMES ARE NO BIG DEAL
Memory laws do not consistently criminalize the denial of Communist crimes. The following discussion concerns the Framework Decision by the EU member states. Luigi Cajani observes, “Many speakers harshly condemned the double standard employed with respect to Nazi and communist crimes, which was widespread in Western Europe for cultural and political reasons and was reflected in the then-current draft of the Framework Decision.” (p. 139).