Is it time to adopt laws on historical memory in Britain?
Anti-racism protestors in the UK, enraged by the death of Floyd George, vented their anger at the injustices of the present by targeting symbolic injustices of the past. Protestors across the UK removed statues, renamed streets and graffitied monuments that honoured those involved in slavery. The most prominent example of this was the statue of the 17th Century slave trader Edward Colston which was torn down and thrown into a river in Bristol.
Interestingly, local authorities have now taken up the protestors’ work. Municipal authorities in London confirmed that a statue of the 18th Century slave-owner Robert Milligan had been taken down. In effect, these events have started a nation-wide debate about who should be honoured by monuments in Britain. From former slave traders to former Prime Ministers, local councils and universities are considering who should stay and who should go. On the same day that the statue of Robert Milligan was taken down, the mayor of London, Sadiq Khan, announced that he would set up a commission to consider how public monuments reflected London’s present values.
But why did it take this long for authorities to act? Is it time for Britain to pass “memory laws” that provide new historical clarity?
COURTS IN FAVOUR OF AMNESIA
Recent legal disputes have underlined flaws in the judicial treatment of historical justice. The British government in 2015 faced a legal challenge led by a campaign group, for refusing to open an inquiry into a shameful part of the UK’s colonial past. In 1948, a Scots Guard patrol killed 24 unarmed civilians in a village in Selangor, Malaysia, which was then a British Protected State. At the time, the British Army justified the soldiers’ actions, but this was later disproved by testimony from eyewitnesses and the victims’ families. Despite this, the UK Supreme Court in November 2015 ruled that the government did not have to open an inquiry into what amounts to a war crime.
This decision was in part informed by the 2014 judgement of the European Court of Human Rights (ECHR) in Janowiec v. Russia. Janowiec’s father was a Polish lieutenant in World War II who was executed in 1941, along with 21,000 others, by Russian troops – an atrocity today known as the Katyn Massacre. The KGB, the main security agency for the Soviet Union at the time, in 1959 ordered the official records of the massacre to be erased, but the records were made public in 1990. Since 2004, the Russian government has become increasingly obstructive, leaving the victims’ families to go to court in search of their right to truth. As alluded above, Janwiec did not receive justice from the court: the victims were denied a criminal investigation into the war crimes. The law found itself unable to investigate history, ironically, owing to the lapse of time. In light of this, could memory laws remedy such injustices?
THE RIGHT TO TRUTH
A 2006 United Nations (UN) report on the promotion and protection of human rights concluded that the right to truth is an “inalienable and autonomous right”. Moreover, it is linked to “the duty and obligation of the State” to protect human rights. In other words, a nation’s commitment to the right to truth is a sign of their moral compass. The report states that in fulfilling this duty, states should conduct “effective investigations” and guarantee “effective remedy and reparations” for human rights violations. This can be achieved through truth commissions, criminal tribunals or even so-called “truth trials” that do not necessarily involve prosecution and punishment. Access to information and historical projects are alternative, but slightly “softer”, solutions.
It is this spirit of the right to truth that has given rise to the latest generation of “memory laws”. A “memory law” is a legal method for a nation to try to reshape a popular historical narrative. These laws either suppress or highlight a part of a nation’s history. Some aim to prevent the denial of past events, such as laws that criminalise denying the Holocaust, and fiercely protect certain historical figures and events. Suppressive memory laws ban ideological symbols and aim to condemn figures from the past. These memory laws have often gone beyond their immediate justification of better remembering the past and reflect the desire of the powerful to enshrine in law their preferred version of the past. So, is the law a suitable tool for satisfying the right to truth?
FREEDOM OF SPEECH
The effect of memory laws on freedom of speech is an important factor in determining whether the UK might benefit from such legislation. Over the past few decades, France has done a U-turn on some of its memory laws on the grounds that they damage free speech. In the 90s and 2000s, France passed laws that included criminalising holocaust denial, recognising the Armenian genocide, and considering the slave trade to be a crime against humanity. However, historians have argued that a legislative response to these issues is not appropriate and violates France’s constitutional commitment to liberty. They believe that these are issues for public debate, not judges in courts. Their arguments in public inquires and court have since rendered many of these laws ineffective.
The danger of such laws imposing themselves on history was underlined by the Mekachera Law 2005 which indoctrinated a positive view of French colonialism in school curricula. Without freedom of speech, a distorted version of the past may have prevailed in French classrooms. However, France has not neglected the initial rationale behind its memory laws: tackling discrimination and xenophobia. This led to the prosecution of the notoriously anti-Semitic French comedian Dieudonnée M’Bala M’Bala that was upheld by the European Court of Human Rights (ECHR) in 2013.
This ruling interestingly contrasts another judgment also in 2013. In Perinçek v. Switzerland, the former leader of the Turkish Workers party Doğu Perinçek had been prosecuted by Swiss authorities for denying the Armenian genocide. The ECHR however defended Perinçek’s freedom of speech, ruling that he just had a different opinion to the Swiss and was not violating the dignity of the Armenians. This revealed both the judicial sensitivity to protecting freedom of speech in such cases and the discrepancy between legally documented genocides like the Holocaust as a comparison with M’Bala M’Bala v. France: why is denying the Armenian genocide acceptable, but denying the Holocaust not? This reflects the difficulty of establishing a clear line about freedom of speech in the law.
THE LIMITS OF THE LAW
Even when well-motivated memory laws are put in place, it is far from guaranteed that justice will be served. Spain’s Historical Memory Law of 2007 has demonstrated that the law is only as good as its enforcers. The law, which launched investigations into crimes committed under Franco’s dictatorship, was largely ignored when a conservative government (the Partido Popular) were in power from 2008 to 2018. It has now been reinforced upon the return of the left-wing Partido Socialista.
The will of the enforcers can also threaten those who wish to uphold the law. The renowned human rights judge Baltasar Garzón was tried for judicial-overreach due to his 2008 investigations into the “crimes against humanity” that were committed under Franco’s dictatorship. Although Garzón was later acquitted, the political pressure led him to drop his investigations that hoped to provide the truth to tens of thousands of victims’ families.
Recently, the United Nations Human Rights Committee approved a case arguing that Spain did not give Garzón a fair trial and acted with questionable legality when faced with a variety of allegations between 2009 and 2012. This reflects the clash between the legislative and executive branches of power when contentious memory laws are passed, that ultimately had a detrimental effect on Spain’s initial attempts to investigate its Francoist past.
A HISTORY OF HEROES AND VILLAINS
In light of these cases, it is easy to feel that historical memory laws are doomed. However, there are instances where memory laws have been vital in providing transitional justice. In Rwanda, laws that criminalise talking about ethnicity and the existence of a “genocide ideology” aim to prevent a recurrence of the nation’s genocide in 1994 and install Rwandan unity. Similarly, the Pact of Forgetting that was indoctrinated in Spain’s 1977 Amnesty Law sought to ensure a secure transition to democracy by ignoring the nation’s Francoist past. Today, some in Rwanda feel that the laws may be counterproductive. In Spain, there has been a clear rejection of the Pact of Forgetting by the left. Ultimately, the issue has left Spain divided on the issue. Regardless of the difficulty of knowing when to repeal such memory laws that secure transitional justice, it is clear that they can play a very important role in the dealing with national trauma.
So, what about the UK? It is important to realise the complexities of historical memory before jumping to legal solutions. It is likely that Sadiq Khan and local councils will discover the complexity of our history when they review the UK’s various monuments. Should the statue which the mayor unveiled in 2018 of the suffragette Millicent Fawcett be removed for her lazy incompetence in a Government review of the sanitation of concentration camps in South Africa where around 28,000 Boers died? What about Downing Street, named after George Downing who defended West-Indian slavery or the Bank of England that was long involved in the slave trade? The list could go on. Equally, British universities who today enjoy the benefits earned from past slavery that today is undoubtedly in breach of human rights, have similar issues. In addition, the UK does not have a history of memory laws. This has allowed Holocaust deniers such as David Irving to be quietly debunked, without becoming a notorious martyr as M’Bala M’Bala became through his various legal disputes.
As we have seen, memory laws range from the benign, to the bad and the ugly depending on their creators and enforcers. Despite this, they tend to share one characteristic: they are points of contention in the present. A state would not waste its time passing legislation to shape history, unless that history is problematic (or traumatic) today. Whilst using the law to rewrite history does not satisfy any obligation or duty to an unsatisfactory past, being able to freely discuss these issues goes a long way to confronting them. Although monuments (and laws) are set in stone, shared public values are not. Considering the rigidity of the law, to my mind, the focus should not be on memory laws, but rather on enabling a high-quality public debate and decent historical research. Museums, protests and artistic responses can offer much here to help respond to these issues and provoke debate. The question, not the rule, is the answer.