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Criminalizing History

Legal Restrictions on Statements and Interpretations of the Past in Germany, Poland, Rwanda, Turkey and Ukraine


Edited By Klaus Bachmann and Christian Garuka

Why do states ban certain statements and interpretations of the past, how do they ban them and what are the practical consequences? This book offers an answer to these questions and at the same time examines, whether the respective legislation was supply-or demand-driven and how prosecutors and courts applied it. The comparison between Germany, Poland, Ukraine, Rwanda and Turkey offers several surprising insights: in most countries, memory law legislation is supply driven and imposed on a reluctant society, in some countries they target apolitical hooligans more than intellectuals or the government’s political opponents. The book also discusses, why and how liberal democracies differ from hybrid regimes in their approach to punitive memory laws and how such laws can be tailored to avoid constraints on free speech, the freedom of the press and academic freedoms.

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about why states impose sanctions on certain statements and interpretations of the past, rather than leaving such cases in the realm of civil law. Concerning the cases of supply-driven legislation, imposed by illiberal, autocratic governments, the picture is quite clear: they do so in order to impose a self-exculpatory “shield of national pride” upon society and, to say it in Emanuela Fonza’s words, “to prevent dissent” (rather than protect consensus).323 If Turkey wanted to protect the legal interest of victims, it would rather pass legislation which forbids to deny the atrocities against Kurds and Armenians, while Ukraine then could be expected to ban denial of the Holocaust and the killings and mass deportations of Poles, Czechs and other minorities during and after World War II.

Forging national unity through punitive memory laws is a major if not the main purpose of such legislation in Poland and Turkey but to some extend also in Rwanda (where denial is regarded as an obstacle to reconciliation) and Germany (where it shelters an inclusive and non-ethnic concept of collective identity, which is based on the condemnation of Nazi rule and the Holocaust). The German case also reveals an intriguing explanation, of why a liberal, pluralist country may ban denial rather than leave ←172 | 173→it (like the US do) to the free competition on a market of ideas, which gives primacy to freedom of speech.

Germany resorted to criminal law to regulate a problem, which initially emerged as a...

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