The Criminalisation of Expressions in Post-conflict Situations

Memory laws: the policing of acknowledgment and denial of gross human rights violations

Abstract

Laws that prohibit denial – or, the other way around – acknowledgment of gross human rights violations (Holocaust denial laws being the most well-known example) bring up pressing dilemmas: some regard them as important means of consolidating ‘truth-telling’, making sure certain facts cannot be contested anymore; others are critical of the idea that state authorities thus fix an official truth and outlaw other versions of history. Such coercive 'memory laws' - mostly criminal prohibitions - exist in different forms: they can be explicit memory laws or more general laws (e.g. on 'hate speech') that the courts interpret as including denial and/or acknowledgment; they can include a range of past atrocities (and leave others out); and they can include literal and/or interpretive denial (or acknowledgment).

These laws can be regarded as transitional justice mechanisms, since they deal with the legacy of gross human rights violations and share the symbolic significance of TJ measures in times of rupture - they are often employed as the gatekeepers of the narratives that have come out of earlier transitional justice efforts. Memory laws are strongly related to one of the core goals of transitional justice: ‘truth-telling’ in the sense of turning knowledge into official acknowledgment of what happened. The extensive literature on such 'memory laws', however, is still largely separate from research on transitional justice. Few TJ studies deal explicitly with the role of memory laws. In this paper, I aim to make a start in bringing these discourses together.

Several reasons are advanced in favour or against prohibiting denial or acknowledgment of gross human rights violations - as illustrated in the European Court of Human Rights judgment in Perinçek v. Switzerland, where the ECtHR judged a criminal conviction for interpretive denial of the Armenian genocide as a violation of freedom of expression (article 10 of the European Convention on Human Rights). This paper systematises these rationales and analyses them in relation to transitional justice, identifying several problems as regards the potential of memory laws to determe the width of the public sphere within which the memory of atrocities is discussed.

Marloes van Noorloos is assistant professor of criminal law at Tilburg University in the Netherlands and president of the human rights organisation NJCM, the Dutch section of the International Commission of Jurists. She has published widely about hate speech, including her PhD thesis 'Hate speech revisited. A comparative and historical perspective on hate speech law in the Netherlands and England & Wales' (published with Intersentia, 2011).