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Memory Laws and Nationalist Lies

Memory laws emerged in Western Europe’s old democracies as a means to promote reconciliation after World War II. Now, such laws have become one of the preferred instruments of populists attempting to consolidate their own power – and to incite the very xenophobic nationalism that provided fertile soil for the Holocaust.

ATLANTA – A controversial law recently enacted by Poland’s ruling Law and Justice (PiS) party has attracted a tremendous amount of attention around the world for its criminalization of expressions like “Polish death camps.” But the law is intended to be much more than a means to get people to mind their language.

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The law states that one could face a fine or up to three years imprisonment for “publicly and contrary to the facts” ascribing to the Polish people or government “responsibility or co-responsibility for Nazi crimes” or “other offenses” that constitute crimes against peace, crimes against humanity, or war crimes.

True, “Nazi crimes” were committed by the Nazis, and Poles should not be blamed for them. Likewise, while Nazi extermination camps were located in Poland, they were by no means Polish. But it is the mention of “other offenses” that should concern us.

The truth is that, in many places in Eastern Europe, the arrival of German troops during World War II prompted an immediate outbreak of homicidal anti-Semitism. Many Jews were murdered by their neighbors or the local police force, only sometimes pursuant to German orders. While Nazism was the catalyst for such murders – which include pogroms all across German-controlled Europe, particularly in the east – should Nazis alone be blamed for them?

Poland’s PiS government is far from the first to introduce “memory laws” aimed at reshaping historical narratives by criminalizing certain statements about the past. Such laws exist in some 30 European countries, as well as in Israel, Russia, Rwanda, and Turkey.

Laws criminalizing the denial of the Holocaust or other crimes against humanity – the most common type of memory law – were first introduced in the 1980s and 1990s in West European democracies that had been implicated in those crimes, including Austria, France, and Germany. Whether or not it is advisable to use criminal law in such a way, there is no doubt about the intentions of the people behind such efforts: to protect the memory of the victims, while acknowledging shared responsibility and regret for the misdeeds of the past.

Some Eastern European countries have likewise prohibited Holocaust denial. But they have also introduced memory laws with essentially the opposite aim: to whitewash national narratives by shifting the responsibility for historical atrocities entirely onto others, whether Hitler’s Germany or Stalin’s Soviet Union. Poland introduced such a law in 1998. Similar norms exist in the Czech Republic, Hungary, Latvia, and Lithuania.

By obscuring the role that local populations played in both Nazi and communist crimes, such laws help to advance nationalist narratives, which can prove very handy for politicians looking to win popular support. The PiS, for one, has accrued substantial electoral support, thanks in part to its exploitation of past tragedies for political ends.

There are more extreme cases than that of Poland. In Russia, a 2014 law prohibits any criticism of Stalin’s policy during WWII. In Turkey, a 2005 law forbids calling the extermination of Armenians under the Ottoman Empire genocide. These laws differ fundamentally from memory laws in Western Europe, because they actively protect the memory of the perpetrators, rather than the victims, of state-sponsored crimes.

Of course, Turkey, and especially Russia, can hardly be called a democracy, and neither is a member of the European Union. But Poland is – and its government, too, is now actively protecting the memory of the perpetrators of crimes against humanity, though they were individual citizens, not state officials acting in their government’s name.

This is not even the first time the PiS has attempted to introduce such a law. In 2008, it proposed a law that penalized “slander against the Polish nation,” including accusations concerning Poles’ involvement in Nazi and communist crimes. The country’s Constitutional Tribunal invalidated that law on procedural grounds.

Memory laws emerged in Western Europe’s old democracies as a means of promoting truth, peace, and reconciliation. But, in attempting to avoid future tragedies, these countries may have set a dangerous precedent. Now, memory laws have become one of the preferred instruments of nationalist populists attempting to consolidate their own power – and to incite the very xenophobic nationalism that once provided fertile soil for the Holocaust.;

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