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UDC 340.5
BecTHMK CT6ry npaBO. 2023. T. 14. Bwn. 4
Models of legal support for implementing the official remembrance policy in Russia and other European countries: Comparative analysis*
А. A. Dorskaia1, A. Yu. Dorskii2, А. V. Sidorov1
1 North-Western Branch of the Russian State University of Justice, 5, Alexandrovsky Park, St. Petersburg, 197046, Russian Federation
2 St. Petersburg State University,
7-9, Universitetskaya nab., St. Petersburg, 199034, Russian Federation
For citation: Dorskaia, Aleksandra A., Andrei Yu. Dorskii, Andrei V. Sidorov. 2023. "Models of legal support for implementing the official remembrance policy in Russia and other European countries: Comparative analysis". Vestnik of Saint Petersburg University. Law 4: 1077-1086. https://doi.org/10.21638/spbu14.2023.415 (In Russian)
This article looks at the issues of legal support for implementing the official remembrance policy in Russia and other European countries. The evolution of remembrance policy is shown through the transition from the predominant role of religion to the incorporation of "memorial laws". Factors that have led to the current revision of history have been identified. Common guidelines have been elucidated for all European countries regarding the historical past: they have been developed within the bounds of the United Nations and reflected in UN General Assembly resolutions, educational programs, international commemorative days, etc. It was concluded that European countries over the past three centuries have had a more or less similar way of emphasizing the main event, around which conceptual framework for the stances on history were constructed: at the end of the 18 th century this was the French Revolution and in the 20th century — World War II. It has been demonstrated that the presence of numerous evaluations of such historically significant "points", the use of the past to attain current political goals, the particularities of national laws, and the formation of new international unions have all led to the development of various models of legal support for implementing the official remembrance policy in Europe, which is reflected in the use of both different terminology and legal means. The categorization of protective, patriotic, post-traumatic, restorative and conciliatory models is proposed, which could be further split into subcategories. It has been highlighted how crucial legal instruments are to both stopping and averting the "memory wars" that many European nations are now engaged in.
Keywords: official remembrance policy, legal support models, memory wars, World War II, United Nations, European Union.
1. Introduction
The idea of an "official remembrance policy" is not firmly established, leading to its application in a variety of combinations and arrangements. On the one hand, modern scholars have little doubt that the remembrance policy was present during most stages of
* The part of the A. A. Dorskaia's and A. V. Sidorov's research was funded by the Russian Science Foundation (RSF), according to the research project no. 22-28-01346 "Experiencing history as a factor in the self-identification of States and peoples in the 21st century: The legal dimension".
© St. Petersburg State University, 2023
the statehood evolution, though for quite a considerable length of time its implementation was carried out not by legal means, but through religious ones. To begin with, the legacy of the great rulers, commanders, spiritual mentors was kept alive through their canonization. Only with the proliferation of the notion of state sovereignty during the mid-17th century, did legal measures start to be enforced for guaranteeing the execution of the official remembrance policy. This course of action had a pan-European scope and was evident, among other things, in the legislation of the Muscovite State (Sokolova 2015). On the other hand, the utilization of various terms persists in the 3rd millennium. The most frequently used notion in Russian-language scientific works is "remembrance policy" (Denisov, Staurskii, Staurskii 2022; Medushevskii 2019), but the phrases "state memorial policy" (Yarychev 2022), "official remembrance policy" (Botantsov 2022; Matevosova 2022), "historical policy" (Khubrikov 2020), "historical memory policy" (Kokoulin 2021), "national memory policy" (Galitskaia 2021), and others are similarly employed. The terms applied in foreign studies are relatively parallel: "collective memory" (Figueiredo, Olden-hove, Licata 2018), "memory policy" (Leon Galarza 2018), "historical memory" (Cerdan, Labayen 2017), etc.
Currently, the actualization of the official remembrance policy is made manifest through the actions countries are taking to form the past and shape attitudes about it, including with the help of legal means, the global "memory wars", endeavors to "re-write" history, clashes caused by discrepancies between the official understanding of events and people's memories, etc. Naturally, leveraging the legal factor can not only resolve existing disputes but also preempt them.
This article aims to arrange a categorization of models of legal support for the execution of the official remembrance policy in Russia and other European countries.
2. Basic research
Notwithstanding the diverse strategies for official remembrance policy that each country develops, there are some fundamental constants that are acknowledged by the international community. These include: recognizing World War II as one of the most catastrophic chapters in the history of humankind, which predetermined the foremost direction of further development — to protect people from the recurrence of the war atrocities and the huge casualties; entrusting the United Nations with the primary responsibility for the promotion of human rights, collaboration and conflict resolution; acknowledging the slavery and slave trade as appalling, disgraceful occurrences in the past, any reverberations of which should be extinguished; sustainable development.
The international legal model for ensuring the implementation of the official remembrance policy includes: the provision of the UN Charter of 19451 on world wars as twice bringing immense suffering to humanity; proclamation of days of remembrance in the UN General Assembly resolutions (for example, January 27 — International Day of Commemoration in Memory of the Victims of the Holocaust, March 25 — International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade, December 9 — International Day of Commemoration and Dignity of the Victims of the Crime
1 "United Nations Charter". Official website of the United Nations. Accessed April 28, 2023. https:// www.un.org/en/about-us/un-charter.
of Genocide and of the Prevention of this Crime, honoring their dignity and preventing this crime, etc.)2; the implementation of educational programs on the events of the past, as instructed by the resolutions of the UN General Assembly (for instance, under the Resolution 60/7 of November 1, 20053, the United Nations Outreach Programme on the Holocaust4 was formulated and commenced); annual adoption of resolutions on combating the glorification of Nazism since 2005, etc.
Nevertheless, recent occurrences demonstrate that the world community does not possess a unified stance. For example, on November 4, 2022, at its meeting, the Third Committee of the 77th session of the UN General Assembly adopted another resolution "Combating glorification of Nazism, neo-Nazism and other practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance"5 proposed by Russia, in which it once again condemned the glorification and whitewashing of the Nazi movement, expressed concern about the fact that a number of States approved the opening of the new memorials dedicated to those who fought on the side of the Nazis or collaborated with them and at the same time — about the "wars" with the monuments erected in remembrance of fighters against fascism. This document was co-authored by the following European states (including those that are partly located in Europe or geopolitically and culturally can refer to Europe): Azerbaijan, Armenia, Belarus and Kazakhstan. One hundred and five countries voted in favor of the document, fifty-two voted against it, fifteen abstained.
Alongside the UN's established universal remembrance policy, there exists the notion of regional historical memory.
The Great French Revolution, a pivotal moment in pan-European history, marked the end of the 18th century with its principles of freedom, equality and fraternity. Subsequently, human rights encompassing the civil, political, social and economic spheres gave birth to a new epoch in the development of parliamentarism, and the work of international organizations and conferences became the central forms of international communication following the Napoleonic wars.
The events of the 20th century slightly shifted the focal point of remembrance policy in European countries. The experience of the past primarily harkens back to World War II. Both countries that made a considerable impact on the defeat of Nazism, nations that surmounted the Nazi period in their history and countries under occupation, which fought for their freedom, agreed that such tragic events should never take place again. A vivid example illustrating the fact that generations of people who had endured the war were striving to avoid the new armed conflicts was the Conference on Security and Cooperation in Europe's recognition of the principles of cooperation, the inviolability of state
2 "United Nations General Assembly resolution 60/7"; "United Nations General Assembly resolution 62/122"; "United Nations General Assembly resolution 69/323". UN General Assembly Resolutions. Accessed April 28, 2023. https://research.un.org/en/docs/ga/quick/regular.
3 "United Nations General Assembly resolution 60/7 on Holocaust remembrance". UN Documents. Accessed April 28, 2023. https://documents-dds-ny.un.org/doc/UNDOC/GEN/N05/487/96/PDF/N0548796. pdf?OpenElement.
4 "The United Nations Outreach Programme on the Holocaust". Official website of the United Nations. Accessed April 28, 2023. https://www.un.org/en/holocaustremembrance.
5 "United Nations General Assembly resolution 72/156 on Combating glorification of Nazism, neoNazism and other practices that contribute to fuelling contemporary forms of racism, racial discrimination, xenophobia and related intolerance". UN Digital Library. Accessed April 28, 2023. https://digitallibrary. un.org/record/1469040?ln=ru.
borders and respect for human rights and fundamental freedoms as generally accepted principles of international law in 19756.
Nevertheless, it was in the 1970s that another trend began to gain traction in European countries. Research has been conducted in an effort to demonstrate that many of the horrors of World War II are misconceptions. Particularly, the French professor of literary criticism, writer Robert Faurisson (1929-2018) in 1978-1979 published a series of articles and a book in which he denied the genocide of Jews by the Nazis, challenged the plausibility of gas chambers as they were described and proclaimed the diary of Anne Frank a fake (Faurisson 1982). This provoked a tremendous public response. Subsequently, similar works emerged.
Changes to the world political landscape, the collapse of nationally organized federations, such as the Soviet Union, Yugoslavia, Czechoslovakia, the disruption of the socialist camp, integration processes within the European Union led to the circumstances where many new countries and peoples confronted the choice of their new identity, and thus history became a potent source of both constructive and destructive strategies.
Although states typically use the same legal means of preserving historical memory (regulatory acts, public holidays, memorable dates, an award system, etc.), as for now, several models of legal support for implementing the official remembrance policy in European countries have been developed.
First, it's a protective model. It is typically seen in states with a centuries-old history. Its primary objective is to protect the sanctity of the evaluation of past events, which are system-forming in laying the foundation of statehood and people's memory.
France was among the pioneers of creating such a legal model.
Since the late 1960s, the country has been exposed to a number of books and films that depict the events of World War II as a story of collaboration and crime. To counteract this trend, in 1978 the Institute of the history of the current age (Institut d'histoire du temps présent) was established, and in 1979 a law granting access to archives after 30 years was approved. On June 13, 1990, Law no. 90-615 on the suppression of any racist, anti-Semitic or xenophobic actions was passed7; it was unofficially called the Gayssot Act (after its initiator, the communist Jean-Claude Gayssot) (Dorskii, Chernogor 2019, 314). This law made denial of the Holocaust a criminal offense. R. Faurisson was one of the first to be found guilty under it. Other cases are still being heard in courts. For example, on April 15, 2019, the Paris Correctional Court (Tribunal correctionnel de Paris) sentenced French writer Alain Soral (Bonnet) to a year in prison for Holocaust denial8.
On January 21, 2001, France adopted the Law no. 2001-70 on the recognition of the Armenian Genocide of 1915, which consists of one article: "France publicly recognizes the Armenian Genocide of 1915"9. The denial of the Armenian Genocide was much later — only in 2006 (Dosse 2017, 73).
6 "Helsinki Final Act dated 1 August 1975". Official website of the Organization for Security and Cooperation in Europe (OSCE). Accessed April 28, 2023. https://www.osce.org/helsinki-final-act.
7 "Loi n° 90-615 du 13 juillet 1990 tendant à réprimer tout acte raciste, antisémite ou xenophobe". Légifrance — Le service public de la diffusion du droit. Accessed April 28, 2023. https://www.legifrance.gouv. fr/loda/id/JORFTEXT000000532990.
8 "Media: The court sentenced French essayist to a year in prison for Holocaust denial". TASS. Accessed April 28, 2023. https://tass.ru/proisshestviya/6336068. (In Russian)
9 "Loi n° 2001-70 du 29 janvier 2001 relative à la reconnaissance du génocide arménien de 1915". Légifrance — Le service public de la diffusion du droit. Accessed April 28, 2023. https://www.legifrance.gouv. fr/loda/id/J0RFTEXT000000403928.
The number of "memorial laws" is not rising notably. Nevertheless, judicial practice reveals that the state's protective stance on shielding historical memory remains unchanged. As an illustration, the administrative tribunal of Toulouse in 2006 deemed it necessary to award reparations to the families of deported Jews in a case against the state railway company "SNCF" and against the state (Orlenko 2019).
Interestingly, France, the initiator of criminalizing the denial of past crimes, simultaneously became the hub of intellectuals in opposition to the enactment of such legal instruments (Kosiak 2022). Despite this, this model has become widespread and has been adopted in Austria, Belgium, etc.
Even though a number of former republics of the Soviet Union created a legal model to support their official remembrance policy, they opted for a protective approach.
It was not until 2007 that this question was brought up in the Russian Federation since the events of the Great Patriotic War, which affected nearly every family, were preserved in collective memory, and the law was not needed. B. Gryzlov, Speaker of the State Duma, when addressing veterans, announced that it was time to draft a bill criminalizing activities intended to "reassess the outcomes of World War II". It took two years to draft the bill, and five more to finalize it (Nelaeva, Sidorova, Khabarova 2020, 40). In 2014, the Criminal Code of the Russian Federation introduced an article banning the rehabilitation of Nazism10. In 2020, part 3 of Art. 67 of the Constitution of the Russian Federation was amended to honor the memory of the defenders of the Fatherland at the state level, protect historical truth and prevent the importance of the people's feat in defending the Fatherland from being diminished11.
The same protective model was adopted in Belarus, where in 2021-2022 the laws on preventing the rehabilitation of Nazism and on the genocide of the Belarusian people were adopted12, and 2022 was declared the Year of Historical Memory. This was largely attributable to what was occurring in neighboring countries. In Poland, for instance, the Institute of National Remembrance (Instytut Pami^ci Narodowej) has rehabilitated Romuald Rice, even though he was responsible for the slaying of at least 79 Orthodox Belarusian peasants (and these are only the cases that are not disputed by Poland) (Dalimaeva 2021, 64).
Therefore, the protective model is featured by the use of multiple legal means to preserve historical memory, however what really matters is the criminalization of denying an official stance on the evaluation of particular events in history, most frequently related to World War II, as well as the formal acknowledgment of crimes perpetrated in the past.
The second model of legal support for implementing the official remembrance policy in European countries can be conditionally termed post-traumatic.
Two subcategories can be differentiated within its framework.
The first one is that the official remembrance policy is grounded on the recognition that the state in the past has become a victim of crimes by other countries. The legislation of such countries prohibits the denial of crimes not only by fascist states but also by the
10 Article 3541 ofthe Criminal Code ofthe Russian Federation no. 63-FZ dated June 13, 1996 (amended on April 14, 2023). Sobranie zakonodatel'stva RF. 1996 25: 2954.
11 "Constitution of the Russian Federation (adopted by popular vote on December 12, 1993 with amendments approved during the all-Russian vote on July 1, 2020)". Official Internet portal of legal information. Accessed April 28, 2023. http://www.pravo.gov.ru/constitution.
12 For instance, the Law of The Republic of Belarus no. 146-Z On the genocide of the Belarusian people dated January 5, 2022. National Legal Internet Portal of the Republic of Belarus. Accessed April 28, 2023. https://pravo.by/document/?guid=12551&p0=H12200146&p1=1.
communist regime (Czech Republic, Slovakia, Poland, Lithuania and others). Researchers claim that it is plausible to discuss the "Eastern European model" of memory, due to the fact that the majority of these nations belonged to the socialist camp (Nelina, Tsyganov 2021, 353). Specifically, in Slovakia in 2002, the years 1939-1989 were legislatively described as the "period of non-freedom"13 (Nelina, Demeshko 2021, 174).
This model is substantially impacted by the entry of these nations into the European Union in 2004, as the EU seeks to establish a uniform approach to assessing historic events, as demonstrated in the concerned documents. Thus, on August 23, 2008, the European Parliament adopted Declaration on the proclamation of August 23 as European Day of Remembrance for the Victims of Stalinism and Nazism and on September 19, 2019 — Resolution 2019/2819 (RSP) on the importance of European remembrance for the future of Europe timed to the 80th anniversary of the World War II outbreak. 535 deputies voted for the Resolution, 66 were against it, 52 abstained from voting. It notes that if the crimes of Nazism were convicted at the Nuremberg Tribunal, then punishment for the crimes of Stalinism is a matter of the future14.
This subcategory of the post-traumatic model is identified by its conformity to supranational regulations, correlating with national legal norms, discarding the socialist legacy and painting it in an exclusively negative light.
Another subcategory may be illustrated by Germany that has been shouldering the burden of accountability for decades in light of the crimes committed by the Nazis during their rule.
In the early 1980s, German Chancellor H. Kohl espoused a policy of cultivating German patriotism of an affirmative nature. Given the fact that the emphasis was shifted from the German admission of guilt for crimes committed by the Nazis to the awareness of the greatness of the German nation, its contribution to world culture, the term "memory policy" was widely used15.
On May 8, 1985, during the celebration of the 40th anniversary of the capitulation of fascist Germany, German President R. von Weizsäcker (1920-2015) called this day "liberation day"16.
In September 1994, item 86a appeared in the Criminal Code of Germany17, prohibiting the use of Nazi symbols, slogans, hymns and attributes. From 3 to 6 years in prison were established for libel against Jewish and other peoples affected by World War II. It was prescribed to cover the Nazi period in detail in historical books to show the committed atrocities and try to prevent the emergence of neo-Nazi movements. Thus, this subcat-egory of post-traumatic model is featured by the ban on the use of symbols pertaining to
13 "Zakon o spristupneni dokumentov o cinnosti bezpecnostnych zloziek statu 1939-1989 a o zalozeni Üstavu pamäti naroda a o doplneni niektorych zakonov (Zakon o pamäti naroda) z 19 augusta 2002 c. 553/2002 Z. z". Slov-lex. Accessed April 28, 2023. https://www.slov-lex.sk/pravne-predpisy/SK/ZZ/2002/553.
14 "European Parliament resolution of 19 September 2019 on the importance of European remembrance for the future of Europe (2019/2819(RSP))". Eurolex. Accessed April 28, 2023. https://eur-lex.europa. eu/legal-content/EN/TXT/?uri=CELEX:52019IP0021.
15 "Kohl says shame of Nazis persists". The New York Times. 1985. Accessed April 28, 2023. https:// www.nytimes.com/1985/04/22/world/kohl-says-shame-of-nazis-persists.html.
16 "Former President of Germany dies at 94". Rossiiskaia gazeta. January 31, 2023. Accessed April 28, 2023. https://rg.ru/2015/01/31/prezident-site.html.
17 "Section 86a of the German Criminal Code (Strafgesetzbuch — StGB)". Gesetze im Internet. Accessed April 28, 2023. https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html.
a certain stage of national history, the legislative consolidation of the obligation to study the tragic events in the people's past.
The third model can be conditionally labeled patriotic. Peoples who have never had sovereign statehood or those who have had it many years ago share it. By way of illustration, in Moldova, the self-identification of the state is established by connecting to the reign of Bogdan the Founder, the first ruler of Moldova in the 14 th century, as well as the era of Stephen the Great who, between the 15th and early 16th centuries, safeguarded the autonomy of the Principality of Moldova for 47 years18. This model is characterized by the issuance of laws that manifest the significance of considering the nation's historical background. For instance, this is reflected in the award system of Moldova, regulated by the Law of July 30, 1992, no. 1123 on State Awards of the Republic of Moldova, which was then repeatedly amended and revised. The most important orders of the country are dedicated to these two outstanding rulers19.
The fourth model of legal support for implementing the official remembrance policy in European countries can be described as restorative. It can be illustrated by Great Britain. There is no notion of "commemorative legislation" in this country, but there are procedures for annulling those decisions that were taken in the past and acquired a legal basis, and later were viewed as not just wrong, but even maleficent. Particularly, in 1992, J. Major, then Prime Minister of Great Britain, signed a treaty in Prague declaring the Munich Agreement of 193820, which allowed the partition of Czechoslovakia and became the beginning of Hitler's aggression, "null and void" (Medvedeva 2019, 261). Consequently, the violated principles of the law of international treaties were restored. The main feature of this model is the use of the procedure for recognizing an international treaty concluded in the past as invalid.
The fifth model can be described as conciliatory. When Spain began to enact memorial legislation, the Constitutional Court reviewed and declared the process as unconstitutional. Nevertheless, the Spanish government employed the historical factor in reaction to the Catalan authorities' plans to hold an independence referendum on October 1, 201721. Five months prior to the referendum, the Spanish government released a decree22 relating to the exhumation of the remains of the former dictator Francisco Franco, which were to be transferred from the mausoleum in the Valley of the Fallen (El Valle de los Caidos) to the site determined by his descendants. The former mausoleum was now to become
18 "Stephen, prince of Moldavia". Encyclopedia Britannica. Accessed April 28, 2023. https://www.bri-tannica.com/biography/Stephen-prince-of-Moldavia.
19 "Law of the Republic of Moldova no. 1123 on State Awards of the Republic of Moldova dated July 30, 1992". Ministry of Justice of the Republic of Moldova. Accessed April 28, 2023. http://lex.justice.md/ index.php?action=view&view=doc&lang=2&id=313284.
20 "Mr Major's Comments During Visit to Czechoslovakia". Official website of the Rt. Hon. Sir John Major KG CH. 1992. Accessed April 28, 2023. https://johnmajorarchive.org.uk/1992/05/27/mr-majors-comments-during-visit-to-czechoslovakia-27-may-1992.
21 "Catalonia calls independence referendum for October". The Guardian. 2017. Accessed April 28, 2023. https://www.theguardian.com/world/2017/jun/09/catalonia-calls-independence-referendum-for-oc-tober-spain.
22 "Real Decreto-ley 10/2018, de 24 de agosto, por el que se modifica la Ley 52/2007, de 26 de diciembre, por la que se reconocen y amplían derechos y se establecen medidas en favor de quienes padecieron persecución o violencia durante la Guerra Civil y la Dictadura". Ministerio de la Presidencia, Relaciones con las Cortes y Memoria Democrática. Accessed April 28, 2023. https://www.boe.es/diario_boe/ txt.php?id=B0E-A-2018-11836.
a place of reconciliation and memory of the bloody civil war of the 1930s. In September 2018, the Government Decree with 172 votes in favor, with 164 abstentions and 2 opposed was approved by the Spanish Parliament23. It was believed that the reburial of F. Franco, which occurred in October 201924, would be the start of mending the division in society. This model is distinctive in that it is implemented through the introduction of a by-law, which is then ratified by parliament.
It stands to reason that, in spite of the current trends, some European countries are still of the opinion that no amount of regulatory measures can alter the attitude towards the past. For example, discussions are taking place in Sweden. Subsequently, the Minister of the Interior declared that the state is going to promulgate a law that bans the Holocaust denial, yet the Minister of Foreign Affairs does not refer to the events of 1915 in the Ottoman Empire as "genocide" (Rudling 2021, 18).
3. Conclusions
Therefore, there is a marked discrepancy in the experience across European countries. Certain states still hold the view that it is unfeasible to preserve historical memory through legal instruments, to criminalize the evaluation of events of the past that does not fit the official stance. Despite the largely uniform approach to preserving historical memory through legal means (like the adoption of regulatory acts, setting up public holidays, memorable dates, an award system, etc.), there are still contrasting views on the events of the past, particularly related to World War II, among European countries. For the countries of Western Europe, the legal regulation largely centers on safeguarding the memory of the Holocaust, for the countries of Eastern Europe — overcoming the communist era of their history spawned from war, while for Russia, Belarus, Kazakhstan, and other former Soviet nations, this is an integral part of statehood and collective memory.
A potential resolution to this issue can be found through the application of international law, such as by passing suitable UN General Assembly measures with regards to the events of World War II.
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Received: April 30, 2023 Accepted: July 31, 2023
Authors' information:
Aleksandra A. Dorskaia — Dr. Sci. in Law, Professor; adorskaya@yandex.ru Andrei Yu. Dorskii — Dr. Sci. in Philosophy, Professor; dorski@yandex.ru Andrei V. Sidorov — PhD in Philology, LLM; andrei.sidorov.spb@gmail.com
