Introduction

Belonging to the intersection of law and history, memory laws manifest a legislator's intervention in the domain of historical memory, and "enshrine state-approved interpretations of crucial historical events" (Belavusau & Gliszczyńska-Grabias, 2017, pp. 13-24). Two basic types of memory laws are identified in the doctrine – one that promulgates a certain historical interpretation as official history (Fraser 2011, p. 29; Vučić, 2021, p. 846), and the other that prohibits the negation of history as interpreted by a statute, historical doctrine, political declaration or a judicial decision (Vučić, 2021, p. 847). Both types might include sanctions for an opposite interpretation, ranging from civil to criminal.

Although rarely applied in practice (Bachmann et al., p. 2020), the global situation of memory laws is characterized by proliferation1, expansion in scope, and tightening of sanctions for disobedience (Belavusau, 2015, pp. 539-540). 21 out of 27 EU member-states provide for a crime of negation of certain historical events, mainly atrocities (Fronza, 2018, p. 180). In the territory of former Yugoslavia, the Criminal Codes of Serbia2, Croatia3, Slovenia4, Montenegro5, and Bosnia and Herzegovina6 have for some years instituted a crime of denial of certain atrocities committed during Yugoslav civil wars.

Chronologically, memory laws firstly appeared in Europe as a reaction to the crime of the Holocaust (Belavusau, 2015, pp. 541-542), to distance democratic Europe from the horrors of the Second World War. By the end of the Cold war and the system of communist states, the crimes of communist regimes became their subject matter (Belavusau, 2015, pp. 542-543). As time passed by, other topics began springing up – colonial crimes7, the Armenian genocide, slave trade (Rousso, 2017, p. 2), and most recently a prohibition on "public condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes", has become the standard8. In this sense, it seems that any society that experienced conflict or atrocities in its past tries to legally regulate the memory of these events.

The ratio legis of memory laws usually lies in the attempt to enhance social stability. Thus, a memory law might enshrine the historical feats of national armed forces for strengthening the national identity or suppress narratives that question the official version of atrocities that occurred on the state territory9. Memory laws are most often justified by the need to prevent new conflicts or to protect the victims of past crimes (Genocide Watch, 2021). The doctrine sometimes adds to this the special role of memory laws in regions such as the Western Balkans, sensitive to the phenomenon of denial of historical crimes due to relatively recent experiences of atrocities and the inadequate reconciliation still in progress (Smailagić, 2020, p. 227).

Notwithstanding the original idea of memory laws as instruments of reconciliation, the doctrine nevertheless recognized in them the potential tools of conflict among various national identities based on opposing interpretations of the same historical events (Kahn, 2019, p. 51; Koposov, 2020, p. 110). Building on this recognition, and by using the author's analytical concept of "vulnerable society", this paper hypothesizes that memory laws function as the catalyst for social conflict in vulnerable societies.

Research methodology

The primary hypothesis of the research is to prove that instead of attaining social stability, memory laws aggravate the existing social tensions concerning the interpretation of common history. If a society is characterized by divisions between various political, ethnic, religious, or other identifiable social groups over the interpretation of historical conflicts, any legally enshrined official history is rarely based on the interpretation acceptable to every single group. Therefore, memory laws might contradict their very purpose, instead of stabilizing society, they catalyze the underlying conflicts. This paradox of memory laws is caused by a society being vulnerable to their effects.

Several elements are present in the definition of a vulnerable society. Firstly, the history of such a society is burdened by the experience of a civil war or a conflict of similar nature among various social groups. Secondly, a vulnerable society lacks a consensual historical interpretation of the nature, causes, and consequences of the conflict. Thirdly, the national identity of a vulnerable society is considered threatened by different interpretations of the same historical events in other states. Fourthly, the consensual interpretation of a historical conflict, either among social groups of the same society or among states previously involved in the conflict is substituted by a temporary arrangement that had enabled the continuation of co-existence of conflicting social groups. This arrangement may be in the form of the amnesty law, armistice, or peace treaty. The existence of one or more of these elements makes a vulnerable society a fertile ground upon which memory laws can sow the seeds of further future conflicts.

The research subject is the norms contained in the memory laws of vulnerable societies. Memory laws use the law as an instrument of the formation of collective societal historical memory. From the point of view of the freedom of research, any "official history" is an unacceptable social phenomenon (Kahn, 2019, p. 45). In several instances, historians in various countries have protested through their professional organizations against memory laws, especially those that criminalize certain historical interpretations (Cherviatsova, 2020a, p. 123; Koposov, 2020, p. 108; Stojanović, 2017). To define more closely the norms that would be the objects of research, it must be noted that the role of law in the formation of historical memory is not controversial per se, nor should it be regarded in absolute negative terms. For a society to exist, some degree of official history must be present, at least for the education of new generations in historical curricula (Ravitch, 2004, pp. 134-135). The point is to identify those laws that create a dominant historical narrative against minor or, to put it better, marginal narratives, while these narratives must be tied to historical conflicts, primarily wars or atrocities.

In such a case, a memory law is no longer just an innocent memory keeper. It morphs from a vehicle of translation of historical memory to future generations, to an instrument of social control which leaves open the public space for the social group whose historical memory the legislator finds legitimate, while other social groups are silenced and controlled in their own memories (Gutman & Tirosh, 2021, str. 705; Gutman 2016; Löytömäki, 2012, str. 19). In the international context, memory laws might lead to "memory wars" where different national interpretations of the same historical events fight for the monopoly on truth, unilaterally and both territorially and extraterritorially (Mälksoo, 2017, str. 91-92).

The laws memorializing the Holocaust are taken as a referential point in the research. Although they too suffer from the same deficiencies as any ordinary memory law, their differentia specifica is a European-wide and strong consensus on the nature, causes, and consequences of atrocities against the Jews. Juxtaposed to the Holocaust is the colonial and revolutionary history of France as the first case study. This is followed by the conflicting narratives in the triangle of Poland, Ukraine, and Russia that revolve around the need to build and preserve the national identity and state integrity. Finally, the study encompasses Spain, Israel, Bosnia & Herzegovina, and Rwanda, as societies where memory laws impose a one-sided interpretation of historical civil wars.

Research results and discussion

The Holocaust – A crime of social consensus

Memory laws that deal with Jewish suffering during the Second World War (Holocaust, Shoa) represent bright examples of a legislator's intervention in collective memory. The main reason is the widely adopted consensus over the meaning of the Holocaust not only for German society (Fahrner, 2020, pp. 188-189), but the wider European society as well Cherviatsova, 2020b, p. 8; Kamiński, 2020, p. 71;),since its whole post-war history is based on the denunciation of the Holocaust as the ultimate evil that must be condemned if democratic values in a society should continue to function (Sierp, 2014, pp. 125-127; Grzebyk, 2020, p. 13; Vučić, 2021, pp. 853-854). In addition to it, historical doctrine both in Germany and all over Europe, although engaged in fierce debates on the degree of German society's guilt for the Holocaust, achieved almost a unanimous vision of historical facts that serve as the basis of this crime (Koposov, 2020, p. 108).

The labyrinths of French colonial and revolutionary past

In line with this development, the Holocaust memory law in France10 received overwhelming social support. However, the attempts to legislatively interpret some other, socially more controversial conflicts were met with a different reaction. Certain members of the Parliament unsuccessfully tried to push through the law which would declare the crimes of the republican army over the citizens of Vendée during French revolutionary wars as genocide (Rousso, 2017, p. 1). The initiators argued that these dark periods in national history must not be overlooked. However, it seems that the refusal of the Parliament to adopt these laws was the echo of the wide consensus in French society that the crimes in Vendée were acceptable by-products of the civil war, although certainly tragic and awful atrocities (Bell, 2019; Joes, 2007; Jones, 2006). Historians insisting on the qualification of Vendée crimes as genocide (Seicher, 1986), belong to the margin of the public debate and their social influence is limited to certain far-right organizations.

The situation is not quite the same with French colonial crimes, exactly because there is a far lower degree of social consensus on their nature, causes, and consequences (Adjemian, 2012; Tourkochoriti, 2017). In 2005, the Law on Colonial Past was adopted11, obligating the educational system to punctuate positive contributions of French colonial administration to the colonial peoples and expressed gratitude towards more than a million rapatriés, people of mainly French ethnic origin that were forced to return to France after the end of the Algerian independence war in 1962. For many members of the political right, these victims did not receive the proper attention in French national memory politics (Löytömäki, 2018, p. 91). The law divided the society, viciously attacked by the political left attacked while enthusiastically greeted by the right (Cherviatsova, 2020b, p. 7). It spoiled the relations with Algiers whose President promptly declared the conquest of Algeria by the French in the 19^th century as genocide, while the Algerian Parliament unanimously condemned the statute, the result of both actions being the postponement of the signature of the planned friendship treaty between the two countries (Errera, 2007, p. 28).

Social opposition towards the Law resulted in the abrogation of its most controversial provision related to educational programs (Rousso, 2017, p. 7), and the proposal by the French foreign minister to create a committee composed of French and Algerian historians to evaluate its provisions (Errera, 2007, p. 29). However, this proposal never materialized and the act continued to divide the French society.

Inter-state memory wars – cases of Ukraine, Poland, and Russia

The triangle of mutual wars waged with memory, historical truth, and occasional force of arms is characteristic for these three countries. The Second World War represented a culmination of these wars, with the Red Army massacre over Polish officers and the intelligentsia in the Katyn Forest, the Volhynia massacre of Polish people by the Ukrainian nationalists, and the crimes of Polish collaborationists over the Ukrainians (Davies, 2005; Marples, 2017; Petrović, 2008). With the outburst of civil war in Ukraine in 2014 between Russian and Ukrainian ethnic populations, never fully investigated and clarified crimes of Soviet authorities over Ukrainians between two world wars surfaced again (Plokhy, 2014).

In 2015, the package of 4 laws was adopted in the Ukrainian National Assembly with the aim of society's "de-communization" (Мyshlovska, 2019; Klymenko, 2017). For the purpose of this paper, the most important is Law No. 314-VIII which designated all the irregular military formations and partisans that fought for Ukrainian independence in the 20^th century as freedom fighters and prohibited public denigration of their historical role12. This provision grouped together a motley crew of people, from conspirators against the Russian Tzar, peasant rebels that opposed Bolshevik measures of collectivization, and Nazi collaborationists during the Second World War (Marples, 2017, p. 132; Soroka & Krawatzek, 2019, pp. 161-162). The civil war in Ukraine exacerbated further the animosity of ethnic Russians against such a legal policy of central authorities in Kyiv since this population nurtures a different picture of Ukrainian collaborationists from the legal norm (Korostelina, 2013, pp. 312-313). Furthermore, certain collaborationist organizations such as "Ukrainian nationalists" that committed massacres against Polish civilians in the period 1943-1944 have become legally protected against public scrutiny which can easily fall under the "denigration" category, which creates problems in relations with the Polish minority and generally in Polish-Ukrainian relations (Cherviatsova, 2020a, p. 133). The other law from the package, on the condemnation of communist and Nazi-socialist regimes and the ban on the propagation of their symbols13, equals totalitarian Soviet crimes with Hitler's genocide against the Jews, which is controversial of itself, but the even greater problem for social stability is caused by the consequences of the ban on public propagation of communist symbols. This implies that in Ukraine is forbidden to publicly perform the Soviet anthem which served as the basis for several anthems of states that have diplomatic relations with Ukraine (Uzbekistan, Tajikistan, Belarus and, of course, the Russian Federation).

The Polish Parliament adopted a declaration in 2016 as a reaction to the situation in Ukraine that designates the massacre against Poles by Ukrainian nationalists as genocide and establishes the national day of remembrance every 11^th July (Radio Poland, 2016). Two years later, Poland instituted criminal responsibility for denial of Ukrainian nationalists' crimes through the amendments of the Act on the Institute of National Remembrance14. The memory war between two states gained momentum. The same Act contains a provision that criminalizes any act that publicly and against "facts" assigns to Polish people or authorities the responsibility for crimes of the Nazis, crimes against humanity, war crimes, and crimes against peace15. Regardless of the existence of abundant evidence on the collaboration of Polish authorities with the German occupation force in the execution of the Holocaust, and crimes of the local population over Jews motivated by greed, hatred, fear, or political conviction (Tsesis, 2020, pp. 109-113), the Act essentially accorded the immunity from any historical reappraisal to all potentially responsible. The bilateral relations with other states suffered as a consequence, including Israel (Israel, 2018), the USA (Noack, 2018), and France (BBC News, 2018). The diplomatic crisis was toned down after the amendment of controversial provisions in the accelerated parliamentary procedure (Jaraczewski, 2018).

In 2014, new Article 354.1 was added to the Criminal Code of the Russian Federation that criminalizes any act of denial or approval of the crimes established by the decisions of the International Military Tribunal in Nuremberg, as well as any "intentional spread of false information related to the activities of the USSR during the Second World War"16. Russian authorities felt the need to legally protect the historical interpretation according to which the red army played a key and heroic role in the elimination of Nazism in Europe, scoring a string of great victories over Hitler's forces (Belavusau et al., 2021, p. 12; Koposov, 2017, p. 307). Such interpretation was needed not only to preserve the antifascist values as part of universal European heritage but more importantly the Russian national identity and the perception that the country's image was under threat (Mälksoo, 2015, p. 226). In the years preceding the law's adoption, in post-soviet states of Central and Eastern Europe, a narrative started to crystallize about the red army as the occupational force not any different from the Axis powers (Soroka & Krawatzek, 2019, p. 166). With the introduction of the new crime, any attempt in Russia to objectively research the red army's atrocities became the "rehabilitation of Nazism". Thus in 2016, the Supreme Court upheld the decision convicting a citizen who posted a link to the article "15 facts about the 'Banderovtsy', or: What the Kremlin Is Silent About" on his profile on social network VKontakte (Edele, 2017, p. 90). The article allegedly counters the Russian misconceptions of the Ukrainian independence movement during the Second World War, in particular of its leader Stepan Bandera. The perpetrator just reposted the article from another source, and due to the few friends he had on the network, a relatively small number of people had the chance to read the story. However, the Supreme Court still decided to criminally suppress such an act on the basis of Article 354.1.

Such unilateral, legally sanctioned historical interpretations prevent any attempt to create a transnational and reconciliatory common history that would contribute to social stability and improve inter-state relations (Torbakov, 2011, p. 224). Even worse, they put a strain on the system of international relations established after the Second World War and the breakup of communist social systems in Europe.

Victors write memory laws – examples of Spain, Bosnia and Herzegovina, Rwanda, and Israel

In 2007, Spain adopted a law that condemns the crimes of Francisco Franco's dictatorship and pays homage to its victims17. The aim of the Law on Historical Memory, as it came to be known (Labanyi, 2008), was to bridge the divide over the interpretation of this period of national history between previously opposing sides of the civil war. However, it attempted this through the imposition of the period's official historical interpretation as the dictatorship marked by criminal state behaviour, and insisted on the need to finally count the victims and condemn the perpetrators, which did not resonate well with parts of the Spanish population that still puts flowers on Franco's grave (Hepworth, 2014; Soroka & Krawatzek, 2019, p. 165). Opposition parties vehemently opposed the law, arguing that it erodes the democratic foundations of modern Spain (Boyd 2008, pp. 133-148; Soroka & Krawatzek, 2019, p. 165), based mainly on the general legal amnesty for crimes of the dictatorship, adopted after its fall in 1977 (Humphrey 2014, p. 34). The Law imposed a specific reading of history to a society that had not previously attained a consensus on the nature, causes, and consequences of a difficult and tragic period during which many Spanish citizens lost their lives due to political differences. The stability achieved by the adoption of the Constitution of democratic Spain in 1978, based on human rights and democratic dialogue, was rocked by the unfortunate intervention of the legislator into historical memory.

The Criminal Code of Bosnia and Herzegovina was amended in 2021 to criminalize the negation of judicially established crimes that occurred during the civil war in this country if capable of inciting hatred or violence, with the maximum sentence of 5 years in prison18. The complex socio-political situation in this state that experienced bloody inter-ethnic and inter-religious conflict relies for its stability on the Dayton Peace Agreement19, and the political system it created. The three constitutional peoples interpret the common history of the civil war in very different and sometimes conflicting narratives over the nature, causes, and consequences of the conflict (Nešković, 2013, pp. 390-407). This volatile situation resulted in the rise of social and inter-ethnic tensions after the adoption of the amendments. Probably the biggest bone of contention is the decision to tie the crime of negation to the judicially established facts of the ad hoc International Criminal Tribunal that has convicted almost complete military-political establishment of Serbs during the civil war for genocide against Bosniak people (Arnaut-Haseljić, 2019). The old disputes on the Tribunal's (un) biased adjudication, qualification of the massacre in Srebrenica as genocide or war crime, the issue of who fired the first gun in 1992 when the war started, etc., were energized by the adoption of the amendments. The Parliament of Republika Srpska immediately adopted the Law on the non-application of the prohibition of crime negation20, eroding the legitimacy of central authorities. In addition, the Criminal Code of Republika Srpska was amended with new Article 280a that provided for prison sentences of up to 3 years for those that "denigrate, show contempt or grossly deprecate the symbols of Republika Srpska", or from 6 months to 5 years for those that "designate Republika Srpska or its citizens as genocidal or as aggressors". First criminal charges have started arriving at the Prosecutor's office in Sarajevo, most recently against a journalist from Banjaluka, Branimir Đuričič, who posted on his Twitter account that there was no genocide in Srebrenica (Maksimović, 2021).

The case of Rwanda is very similar to the Bosnian experience. Due to its historical experience in the last decade of the 20^th century with the genocide against the Tutsi, committed as part of the inter-ethnic civil war, which was prosecuted in front of an ad hoc International Tribunal that categorized the massacres against the Tutsi as genocide (Jansen, 2016, pp. 191-213), Rwanda has inserted in its Constitution the provision on the suppression of genocidal ideologies and adopted laws that criminalize genocide condonation, minimization or denial. A person who states that the genocide never happened, or that the other side committed genocide as well, or otherwise disputes the established facts can be convicted for up to seven years in prison21. The memory laws that prohibit the denial of genocide were then used as a tool of suppression of political opposition. President of Rwanda, a member of the Tutsi people, according to some critics, used this law as a convenient vehicle to suppress the voices of dissent from the Hutu opposition, whose members were convicted for genocide in front of the International Criminal Tribunal for Rwanda (Kelley, p. 2017; Loyle 2018; Tsesis, 2020, p. 117).

Finally, in Israel in 2011, a legal provision was adopted that provided for fines for state-funded institutions that mourn on the Day of Independence (Gutman & Tirosh, 2021, p. 708). The independence day of Israel is for the Palestinian population the day of mourning, or "Nakba", the day when these people suffered the organized campaign of ethnic cleansing by Israel defence forces (Abu-Sitta, 2004). Israeli legislator excluded the historical memory of a social group in the State of Israel, the Palestinians, from official history, and enshrined the interpretation under which the heroic Israeli people gained a victory against aggressor forces of the Arab coalition and founded its independent state as the only proper interpretation of the events of 1948. The law aims to give legitimacy to the State of Israel in its present form (Jamal & Bsoul, 2014), regardless of the controversial status of the occupied Palestinian territories, the never redressed expulsion of the Palestinians, and the permanent discrimination of Palestinians still living in present-day Israel. In this way, the Law upholds the state of social division and conflict between Jewish and Arab populations in Israel and suppresses the attempts of historians, artists, and civil activists to evaluate the War of Independence from a different angle (Gutman, 2017). Perhaps one that instead of a miraculous victory of the Israeli army over the Arab aggressor coalition, not unlike the Biblical one of David over Goliath, would talk about the organized attempt of the superior Israeli military force to use the state of war to completely cleanse Israel of non-Jewish population.

Civil wars in analyzed countries ended with peace treaties, armistices, or amnesty laws. Compromise solutions of these legal acts enabled the continuation of peaceful co-existence of previously conflicted social groups. However, political elites in power that represent the interests of one side in the former conflict now exclude the other, "defeated" side from the official history via a memory law. The delicate social balance is thus imperilled again.

Conclusions

The analysis has shown that memory laws in vulnerable societies contribute to existing social conflicts instead of being an instrument of stability. The imposition of only one proper historical interpretation controls the social groups that share a different version of history. This social control has the potential to erode the democratic foundations of society, to restrict the guaranteed human rights and freedoms and in the end, to open the old wounds suffered in historical conflicts, never fully healed.

Memory laws often operate with symbols and myths, and in this business nationalism is more at home than democracy, which finds strength in universal values and the inclusionary approach to all social groups. It was already noted on the international level that memory laws contribute to the rise of nationalism, since they exclude the other, and create a spiral of conflicts of historical narratives (Zannier, 2018, p. 42). The only universally accepted symbol that transcends national historic interpretation, at least when memory laws are concerned, is the Holocaust, which explains the success of the laws regulating its memorialization.

The countries that have suffered historical conflicts are prone to various interpretations of the nature, causes, and consequences of these conflicts. It is doubtful that a universal historical interpretation acceptable to all conflicting sides would be ever possible. Amnesty laws, armistices, and peace treaties serve as provisional solutions for the elimination of conflicts and enable society to continue to function normally.

If a state decides to officially decree history, the resistance of social groups that do not share in the legislator's vision of history is inevitable, regardless of the legislative technique. Whether a memory law prohibits crime negationism, orders the celebration of an event in a certain manner, relates certain people with certain crimes, the result is always the same. It seems that the "distance" of the law from historical truth is irrelevant as well. The Bosnian memory law at least relies on internationally adjudicated facts, while Ukrainian finds the "facts" mainly in the work of Ukrainian historians. However, the issues of historical legitimacy and factual background of memory laws would require a separate and detailed study. For the purpose of this paper, it is enough to note the paradox of memory laws in vulnerable societies – instead of an instrument of reconciliation they are a catalyst of underlying social conflicts.

Dodatak

Project

The paper presents the findings of a study developed as part of the research project „Serbia and challenges in international relations 2022“, financed by the Ministry of Education, Science and Technological Development of the Republic of Serbia, and conducted by Institute of International Politics and Economics, Belgrade.