historein11 (2011)

2011

11

ιστορειν

historein

2011

NEFELI

11

Pierre Nora

Jörn Rüsen

Wolfgang Benz

Luigi Cajani

Antoon De Baets

ιστορειν

historein

a review of the past

and other stories

C o n t e n t s

n t e n t s

Antonis Liakos Introduction:

5

How to Deal with Tormented Pasts

Pierre Nora History, Memory and the Law in France,

10

Jörn Rüsen Using History: The Struggle over

14

Historical Culture

Luigi Cajani Criminal Laws on History:

19

The Case of the European Union

Marina Cattaruzza How Much Does Historical Truth

49

Antoon De Baets Conceptualising Historical Crimes

59

69

as a Refusal to Accept Reality

Thanasis D. Sfikas Does the Iliad need an Agamemnon Version?

80

Vangelis Kechriotis From Oblivion to Obsession: The Uses of History

99

Marja Jalava Kulturgeschichte as a Political Tool:

125

I N T E R V E N T I O N S

Thomas W. Gallant Women, Crime and the Courts in the Ionian

137

Aris Sarafianos In-N-Out Greece: Cultural Tourism

157

B O O K R E V I E W S

Eleni Andriakaina John Seed, Marx: A Guide for the Perplexed d

175

Seraphim Seferiades Yannis Voularis and Loudovikos Kotsonopoulos

178

και πολιτισμός από το έθνος-κράτος στην

Gramsci: Politics and culture from the nation-state to globalisation]

Foti Benlisoy Anna Frangoudaki and Çağlar Keyder (eds),

180

Ελλάδα και Τουρκία: Πορείες Εκσυγχρονισμού Οι Αμφίσημες Σχέσεις τους με την Ευρώπη, 1850–

1950 [Greece and Turkey: ways to modernity; the encounters with Europe, 1850–1950]

Nikolaos Chrissidis Ada Dialla, Η Ρωσία απέναντι στα Βαλκάνια:

184

Ιδεολογία και πολιτική στο δεύτερο μισό του 19ου αιώνα [Russia vis-à-vis the Balkans: ideology and politics in the second half of the 19th century]

Erik Sjöberg Basil C. Gounaris, Το μακεδονικó ζήτημα απó τον

190

19ο έως τον 21ο αιώνα: Ιστοριογραφικές προσεγγίσεις [The Macedonian Question,

19th-21st centuries: Historiographical approaches]

David Ricks Dimitris D. Arvanitakis, Στον δρόμο για τις

194

πατρίδες: Η Αpe italiana, ο Ανδρέας Κάλβος, η Ιστορία [Towards the nations: The Ape

Italiana, Andreas Kalvos, the history]

Thomas W. Gallant Andrekos Varnava, British Imperialism in Cyprus

197

1878–1915: The Inconsequential Possession

Effi Gazi Niki Maroniti, Πολιτική εξουσία και εθνικό ζήτημα

200

στην Ελλάδα 1880–1910 [Political authority and the: national question in Greece, 1880–1910]

Vasileios Dalkavoukis Vassilis Nitsiakos, Στο Σύνορο: ‘Μετανάστευση’,

202

σύνορα και ταυτότητες στην αλβανο–ελληνική μεθόριο [On the Border: Transborder Mobility, Ethnic Groups and Boundaries on the Albanian–

Greek Frontier]

Androniki Dialeti Daniel T. Lochman, Maritere López and Lorna

205

Friendship in Early Modern Europe, 1500–1700

Photini Danou David Rollison, A Commonwealth of the People:

207

Popular Politics and England’s Social Revolution 1066–1649

από το Συμβούλιο των 150 [Venetian Zakynthos, 1588–1594: The allocation and management of power by the Council of 150]

Alexandra Lianeri Apostolos Lampropoulos and Antonis

215

Ιστορία και γεωγραφία των κριτικών αφηγημάτων [States of theory: history and geography of critical narratives]

Dina Vaiou Kostas Yannakopoulos and Yannis

219

Yannitsiotis (eds), Αμφισβητούμενοι χώροι

στην πόλη: Χωρικές προσεγγίσεις του πολιτισμού [Contested spaces in the city: spatial approaches to culture]

Pandelis Kiprianos Alexander Kitroeff, Ελλάς, Ευρώπη, Παναθηναϊκός!

222

100 χρόνια Ελληνικής Ιστορίας, 1908–2008 [Greece, Europe, Panathinaikos! A century of Greek history]

Dimitris Plantzos Susan E. Alcock, Αρχαιολογίες του ελληνικού

225

παρελθόντος: Τοπία, μνημεία και αναμνήσεις [Archaeologies of the Greek Past: Landscapes, Monuments and Memories]

Nikos Tzafleris Polymeris Voglis, Η ελληνική κοινωνία στην ν

228

occupation, 1941–1944]

Loukianos Hassiotis Stratos Dordanas, Η γερμανική στολή στη

233

ναφθαλίνη: Επιβιώσεις του δοσιλογισμού στη Μακεδονία 1945–1974 [The German uniform in mothballs: Collaborationism’s survival in Macedonia, 1945–1974]

Yiorgos Stathakis Sotiris Walden, Παράταιροι εταίροι: Ελληνική

236

δικτατορία, κομμουνιστικά καθεστώτα και Βαλκάνια 1967–1974 [Unseemly partners: The Greek

dictatorship, communist regimes and the Balkans 1967–1974]

Since the last quarter of the twentieth century, history has been a battleground regarding the traumatic events of the past, mainly those of the same century. The past has become the apple of discord between historians, governments, lawmakers and the media. Memo-ry wars and memoMemo-ry laws have reproduced each other and this spiral has spread from one country to the other. Although history and poli-tics were always entangled in different forms and roles, today memory laws, history wars, transitional justice and the creation of an interna-tional framework of norms regarding the teaching of history at school level are presenting historians with new epistemological problems and moral dilemmas. This volume of Historein addresses the question of how to come to terms with dark pasts: partly in terms of the lega-cies of division and conflict created by them but mainly those pasts that still create suffering and are related with historical traumas. This is a pressing question

because histori-ans are obliged not only to research the past but to shift

their attention from the question of what happened in the past to the question of what is happening in our present regarding its past. This latter question, which is the subject of this issue, marks a shift from history, as an enquiry into the traces of the past, to the historical cul-ture which regards the way in which the past lives in the present and is related to our lives, decisions and future orientations.

The idea to focus this issue originates in the panel on Ethics, Histori-cal Research and Law, organised by Luigi Cajani at the 21st Inter-national Congress of Historical Sciences in Amsterdam in August 2010, in which Pierre Nora, Jörn Rüsen, Paolo Pezzino and Antonis Liakos participated. All the speakers agreed that laws attempting to regulate the ways we talk about the past constitute a new field of

Introduction

controversy between historians, lawmakers and the European and national parliaments. The initial legislative intervention regarding the denial of the Holocaust was soon followed by new laws condemning north Atlantic slavery, colonial crimes, the communist repression in central and eastern Europe and specific crimes in national historiographies. Pierre Nora, in his inter-vention “History, Memory and the Law in France, 1990–2010”, recognises that governments and legislative bodies have the right to orientate the collective memory but disputes strongly the le-gal sanctions on topics concerning the representation of the past. He argues that the subjection of historical events to legal qualification renders any further discussion impossible at the risk of sanctions and paralyses research. He explains why he took the initiative to create the French association Liberté pour l’histoire. In his words, “it is up to the politicians to commemorate, to pay homage and to organise compensation; it is up to them to honour the victims. It is up to the historians to do the rest, to establish the facts and to propose interpretations of these facts, re-stricted by neither constraint nor taboo.” Taking an opposite position, Wolfgang Benz, in his ar-ticle “Holocaust Denial: Anti-Semitism as a Refusal to Accept Reality”, argues that the law does not concern itself with historians and truth seekers but only those who deny or tend to margin-alise the genocide of six million Jews. The denial or marginalisation of genocide is a typical at-titude among people who share a rightwing extremist worldview and who adopt hate speech against Jews and immigrants.

One of the main issues of concern in the public use of history and the memory wars is the ceptualisation of genocides and crimes against humanity. How can these horrific events be con-ceived? How can we talk and write about the mass killing of human beings and the destruction of their lives? What concepts should be used? Should we adopt a position of historical distance, or should we advocate the cause of the victims? Are genocides just something that happened in the twentieth century, or are historians more able and sensitive to see and explore them now because their mentality and the way of doing history has changed? Antoon De Baets, in his ar-ticle “Conceptualising Historical Crimes”, reflects on the historicity of the concepts we possess and use. “Should crimes committed in the course of history that are comparable to genocide, crimes against humanity or war crimes be referred to as such, whatever the label used at the time?” The framework of the present debate on mass atrocities is the United Nations Conven-tion on the PrevenConven-tion and Punishment of the Crime of Genocide in 1948. This lawintroduced a moral dimension in thinking and writing about the past. Does the involvement of morality in historical work strike at the value freedom of historians, one of the pillars of their profession, at least since the rise of nineteenth-century historicism? The neutrality and objectivity demanded of historical scholarship have, in fact, been replaced by open sympathy and a sense of respect for victims, which has gone along with open public revulsion at such acts, captured by the popu-lar expression Never again! Historians could no longer behave as distant and indifferent observ-!

ers, without taking into consideration the moral ethic and implications of their writings. But does this preoccupation hinder the autonomy of historical thinking and prescribe historical interpre-tations and represeninterpre-tations by the force of law or by political pressure? Jörn Rüsen responds to this question in his article “Using History: The Struggle over Traumatic Experiences of the Past in Historical Culture”. For Rüsen, although there is “a clear distinction between political and judi-cial intentions and norms, on the one hand, and the principles of proper historical thinking . . . on the other”, there are intersections between politics and law, and historical thinking. Rüsen reads

HISTOREIN VOLUME 11 (2011)

7 these intersections through three successive generations in Germany, where historians shared common perspectives on the past with public opinion. His conclusion is that historical research is not in contradiction with the universal principles of morality. It is the trap of moralistic ethno-centrism which leads historical integrity to be compromised through political intentions. Since the nineteenth century, historians have had a strong interest in international relations, and the history of foreign policy was a stronghold of their field. But genocides are not only a his-torical problem. Their politicisation through the question of official recognition, restitution and apologies have implicated history and historians in the forming of international policy. Since the end of the Second World War, petitions requesting recognition of more than 40 genocides from around the world have been submitted to international organisations and national parliaments. Some of them, such as the Armenian genocide, the Ukrainian Holodomor and Japanese atroci-ties in China and Korea are still the subjects of international dispute. Some others, such as the Rwandan and the Bosnian massacres, are being tried in international criminal courts. A number of genocides or massacres of communities are related to emerging nationalities and their cam-paign for recognition and emancipation, but there are also genocides espoused mostly by aca-demics and campus activists such as those of the Native Americans and African slaves. Histori-ans were called to advocate or oppose these petitions for official recognition, and, in one way or the other, were deeply implicated in all of these cases. But this involvement, although it allowed historians to address audiences much bigger than their usual readership, was not without con-sequences for what these audiences expected from them because the legal recognition and the institutionalisation of the Holocaust and the genocides which preceded or followed it affect the expectations of history, change the forms of representation and commemoration of these events and also impose terms on the nature of the related historical debates.

By institutionalising the memory of crimes against humanity, the world order that was estab-lished after the Second World War defended a certain way of remembering the past and pro-claimed it as a moral value that needs to be respected, even by coercion. In the following years, the expansion of the definition of what constitutes a “genocide” and the drive for recognition led to an effort by various nations or ethnic groups to seek revenge for the injustices they have expe-rienced in the past. The term “genocide”, besides being a demand for justice, is a symbol of rec-ognition for crimes committed since it has acquired performative power. It validates in the pub-lic memory the suffering of a community and produces a demand that it be respected at home and abroad. When genocides are declared as such, past sufferings acquire the status of a cul-tural distinction and become a source of moral obligation in politics and international relations. As a consequence, the official recognition of certain traumas and the institutionalisation of their memory becomes a way of dealing with the past under certain rules. At the same time, the in-stitutionalisation of memory becomes highly selective, and not all memories are considered worthy of safeguarding. Memorialisation of the past in the public domain depends on power re-lations in the present, and there are horrendous crimes against humanity that are still unrecog-nised and unpunished because the victims do not have the power to bring their cases before the global public or because the perpetrators are still in power. But respect should be defended, and defended by law. The penalisation of the denial of genocide is the subject of Luigi Cajani’s

“Crimi-nal Laws on History: The Case of the European Union”. He refers to the memory laws not only in the countries of the European Union and in the European Parliament but also in Israel, Ukraine and Switzerland. He recognises that memory laws, and in some cases criminal legislation, are now the custodian of memory. Reading his article it is understandable why the intervention of the law in the remembering of the past means that historians and historical institutions can no longer perform their traditional role as the guardians of memory because the relationship with the past is much more diffused and, through the effects of new media, has acquired dimensions that make it impossible for academic institutions to control. The claim to history has become an uncontrollable force, affecting not only the learned elites but also the masses. History is read as literature and the borders between the reception of history, the historical novel and fiction are coming down. In contemporary historical culture, the traumatic stands for the sublime, martyr-dom and victimhood stand for the heroic and the past is regarded as a symptomatology of un-related symptoms and is connected with justice and moral demands. Finally, the new epony-mous heroes of the past are not illustrious men but evil people. Marina Cattaruzza, in her article “How Much Does Historical Truth Still Matter?”, examines how historical narratives are affected by existing practices of victimisation and self-victimisation. Her purpose is to “examine to what degree the currently widespread attribution of victim status to groups of people in the past can be a hindrance to an unbiased historical analysis. In other words, to what degree do historians tend to adopt in their historical narrative to what I want to call here a “moral narrative”.

Τhe changes in the ways we remember, initiated in the postwar period, were the result of syn-ergies which have to do with the experiences of wars and mass sufferings but also with the as-piration to escape from the previous awful period and reconstruct a peaceful future, and in do-ing so verbalisdo-ing and dealdo-ing with the past as much as possible. Through these shifts, history is now rarely conceived as a social science explaining the course of society. It has been trans-formed into a discipline focused on our relations with the past, including feelings about the past, the sense of respect, the request for acknowledgement and the attribution of justice. History was called to meet needs such as healing, respect, reconciliation and the moral reconstruction of societies in an environment where representation of the past was passing from the printed to the virtual world. New needs and new environments are outpacing the traditional role of history, as it has been conceived and elaborated in the communities of scholars based on the pursuit of a detached and purposeless knowledge. This shift brought history into the realm of historical culture, where historians are no longer the privileged definers of the relationship of the present with the past. As a consequence, in order to understand the new roles of historical communi-ties, we should move beyond the normative concept of the uses and abuses of history and see history not as a window to the past, asking what happened in the past, but as a window into the house in which we are now living, asking how does the past operate in the present. We should not cease to be interested in the past, but we should also be interested in history as a cultural feature of our present societies; not how history should be conducted, but how it is in fact per-forming. This inversion of our outlook does not imply indifference to or an acceptance of the ir-responsible uses of the past or the manipulation of history and historical consciousness. On the contrary, it helps historians understand better the complexity and the multiple dimensions of the environment in which we now work. Vangelis Kechriotis attempts such an exploration into the historical culture of the Turkey of 2011 in his article “From Oblivion to Obsession: The Uses of

HISTOREIN VOLUME 11 (2011)

9 History in Recent Public Debates in Turkey”. He presents two cases, one the TV series on the life of Sultan Süleyman the Magnificent (1494–1566) and the other on a film on Bediüzzaman Said Nursi, a Kurdish scholar and political leader (1868–1960) of the early Republican period. Both events challenged the official version of the past and provoked extended reactions, polemics and debates. For Kechriotis, the political, social and demographic changes in recent Turkey have led to a questioning of the compatibility of individual and group memories with the public versions of the past. The result of this questioning is that state and academic elites have lost “the monopoly over the legitimacy to organise and interpret the past”. History becomes an arena where social or ethnic groups demand their emancipation from past stigmas and claim their participation in the shaping of the future. On the same ground, newly emerging elites are establishing their own hegemony and in the process undermining the authority of older ones.

But what about the rigour of historical inquiry? Do historians, at least historians whose work is in the tradition of the European and American scholarly tradition of recent decades, have a distinct role in historical culture and in the uses of the past? What is expected from them in the coming to terms with a the civil war past? Taking the Greek debate on the Second World War and the Greek Civil War as a case study, Thanasis Sfikas and Anna Mahera, in their joint article “Does the Iliad need an Agamemnon Version? History, Politics and the Greek 1940s”, scrutinise the evidence, the argumentation and the epistemological presupposition of a group of revision-ists. Yet, although a juxtaposition between the methodological coherence of historical thinking, on the one hand, and the political use of history, on the other, might be possible in the present, it is very interesting to note that when one views the history of historiography from a long per-spective, the differences become more and more indistinct. According to Marja Jalava, in her ar-ticle “Kulturgeschichte as a Political Tool: The Finnish Case”, the methodological modernisation of Finnish historiography and its turn to social history was concomitant with a turn to national history, dissociated from the prevailing model of political history in Sweden.

Viewed from the long perspective and from a cultural point of view, the articles included in this issue of Historein make it obvious how history (or at least public history) has been transformed or understood and conceived as a political culture of back-projected accountability. From this point of view, the historical practices became also part of a broader tendency of verbalising and rationalising differences stemming from wars, civil wars, dictatorships and traumatic experienc-es. This international or global ideological context has gained increasing importance in shaping national debates and policies and in producing historical narratives in our time.

a particularly intense relationship in France over the past twenty years or so. It is the intensity of this relationship which I wish to stress here by briefly recalling its history and its causes.

This history chiefly began in 1990 with the Gayssot law, which makes it an offence to question or “contest” crimes against hu-manity as defined by the Nuremberg tribu-nal, an offence punishable by penal sanc-tions and which was extended to the crime of “genocide” two years later.

However, the promulgation of this law did not at the time provoke much protest from historians. Indeed the opposite was true, being as it was taken within a specific con-text: the arrest of a milicien,1_{Touvier, after}

years of accomplices turning a blind eye, and above all the increasing power of what has become known as “negationism” (Hol-ocaust denial), started by Robert Fauris-son and taken up by Jean-Marie Le Pen. There were only two well-known person-alities from the historical community who spoke out. Madeleine Rebérioux, then pres-ident of the Human Rights League (Ligue des droits de l’Homme) in a sensational ar-ticle in the magazine L’Histoire,2 _{and Pierre}

Vidal-Naquet,3 _{whom no one could suspect}

of complacency towards negationism, who had brilliantly picked apart its mechanisms and whose parents died during deporta-tion. I will add here that personally I was not very favourable because, having worked for some years on the matter of national mem-ory, I feared that by giving preference – were it for the best reasons in the world – to the

Pierre Nora

the Law in France,

1990–2010

HISTOREIN VOLUME 11 (2011)

11 memory of a particular group, this would be but the thin end of the wedge; a process impossible

to halt once set in motion. What is more, the existing legal armoury was sufficient as it had al-ready permitted the conviction of Faurisson. However, these misgivings did not extend to formal opposition.

It was only in 2005 that the historical community took action following two coinciding incidents. Firstly, the Mekachera law of 23 February 2005 according to which “the nation gives recogni-tion to its repatriated French citizens” and stipulating in Article 4 that the school curriculum and textbooks were under obligation to “show colonisation in the positive light which it deserves”. Secondly, the Pétré-Grenouilleau affair, named after the historian who had shortly before pub-lished a book in the Bibliothèque des histoires series – a collection which I head at Gallimard – entitled Les traites négrières (The Slave Trades).4 _{The author won several prizes, yet he was}

taken to court by a black action group, the Collective of Antilleans, Guyanese and Réunionnais (Collectifdom), for statements published in Le Journal du dimanche that he made when receiving the French Senate’s history book award; statements which called into question the legitimacy of the 2001 Taubira law, which had been voted unanimously at the suggestion of the National Assembly deputy for Guyana, who declared that slavery and the Atlantic slave trade since the fifteenth century were a “crime against humanity”.

These simultaneous incidents – one coming from the right, the other from the left – all of a sud-den sensitised the historical community to the legislative drift, which for fifteen years had been leading the National Assembly more and more frequently and disturbingly to qualify the past. y

The parliament was liberally declaring historical events to be “crimes against humanity”, events which were certainly morally condemnable, but whose legal qualification rendered any further l

discussion impossible at the risk of sanctions.

Four “memory laws” had thus been voted: in addition to the Gayssot law repressing the denial of the Jewish genocide, the law of 21 January 2001 by which, in a single article, “the French Republic recognises the Armenian genocide of 1915” (a tragedy for which France is in no way responsible); the law of 21 May 2005, known as the Taubira law, condemning slavery and the Atlantic slave trade, yet sparing the Arab and inter-African slave trades. Lastly, the colonisation law described above. A drift all the more disturbing for it came to light on this occasion that a dozen such laws were being drafted, starting with a law on the Romani people, another on the War in the Vendée during the French Revolution and a third on the famine in Ukraine in 1932.

It is within this context that a widespread reaction occurred among historians. Firstly, a petition against the colonisation law was initiated, following a forum organised by Claude Liauzu, Gilbert Meynier and Gérard Noiriel, entitled “No to teaching an official history”, which led to the creation of the Vigilance Committee against the State Use of History (Comité de vigilance contre les

us-ages publics de l’histoire, or CVUH), presided over by Noiriel. Secondly, at the initiative of 19 in-ternationally renowned historians, the Liberté pour l’Histoire association was created, presided over by René Rémond, whom I had the honour of succeeding, and which quickly gathered sev-eral hundred members.

This legislative drift could not in fact appear anything but dangerous to historians on several levels. Aside from the fact that it risked paralysing research and that it dangerously mirrored totalitarian practices, aside from the fact that this drift was not occurring in any democracy other than in France – already all good reasons to condemn it – this collection of laws was, in its very nature and in the eyes of professional historians, contrary to the very ethos of historical research. It demonstrated a tendency to reread and rewrite the whole of history exclusively from the victims’ point of view. It also demonstrated a regrettable tendency to project onto the past moral judgments belonging exclusively to the present without taking into account the change in the times; this being history’s very purpose and the very reason for learning and teaching history in the first place.

Many historians were at first hesitant about joining Liberté pour l’Histoire because in its very prin-ciples it went as far as challenging the Gayssot law, which had taken on a sacred quality thanks to the increasingly pregnant memory of the Shoah. It is important therefore to be clear on this point. We continue, I continue, to be wary of the Gayssot law, all the more so since alongside the old rea-sons for not being in favour of it, an additional reason – the most powerful and important argument of all – presents itself: the Gayssot law was certainly not voted against historians, on the contrary; yet it was the legal model and template for all of the laws which followed; it inspired them. This had what is known as a perverse effect. A condemnation of the other laws, and following the very principle of all of these laws, would unavoidably entail a condemnation of this first law.

It is now over 20 years since the law was voted, and even if we continue to regret it intellectu-ally speaking, Liberté pour l’Histoire does not campaign for its suppression and does not wish to challenge it, for the simple reason that this legal and official challenge would only be seen in the public eye as authorising and even encouraging the denial of the Jewish genocide.

History and memory

The wishes of Liberté pour l’Histoire have been heard at the national scale. A commission, pre-sided by Bernard Accoyer, president of the National Assembly, led to a report being voted unani-mously in 2008. According to its terms, with the existing laws remaining unchanged, it would be preferable for the National Assembly to abstain in the future from any law qualifying the past; all the more so given that constitutional reform from now on permits questions of memory to be settled not through laws but through “resolutions”.

At the European level, the debate on legislation dealing with the past was reopened by a draft Framework decision of 17 April 2007, making it an offence punishable by imprisonment to “grossly trivialise” any genocide, crime against humanity or racist war crime. It represents, in

HISTOREIN VOLUME 11 (2011)

13 other words, a generalisation and even an extension and enforcement of the Gayssot law, and

the 27 countries of the European Union were given two years to inscribe into their respective constitutions. At the time of ratification and at the suggestion of Liberté pour l’Histoire, France chose an option whereby it would only recognise those crimes against humanity defined as such by an international tribunal. This means that genocides during the twentieth century could be po-tentially recognised, but not those occurring earlier within the nation’s history.

To conclude, let us clarify the precise separation made between the political and the historical, between history and memory, by an association such as Liberté pour l’Histoire. It is clear that political decision-making bodies have the right and indeed the duty to take an interest in the past in order to orientate and position the collective memory, this clearly lying within their province. Yet they do not have the right to make use of laws which qualify the facts of the past and dictate history. It is up to the politicians to commemorate, to pay homage and to organise compensa-tion; it is up to them to honour the victims. It is up to the historians to do the rest, to establish the facts and to propose interpretations of these facts, restricted by neither constraint nor taboo. In short, to practice what Marc Bloch called their “metier d’historien” (profession of historian). If the debate in France took on this particular form and this intensity, generating books and de-bates, political divisions and an evocation of the bigger picture, there are two reasons for this. First, because the automatic recourse to the law, and with it all that is formal and judicial, ex-acerbated the relationship of politics with history and memory. Recent constitutional reforms planned to make it possible once more for deputies to vote for a “resolution” instead of a law, as they had been under the Fourth Republic, precisely in order to avoid these conflicts of memory. A “resolution” commits to nothing.

What made the conflict so visible – and precisely allowed historians to win it, albeit provisionally – was the opportunity for the historical community to react.

Various conditions contributed to this: the central Paris location, the legal means to create an “association” in accordance with the law of 1901, the ease of access to political figureheads, at least for the most well-known historians. This combination of factors does not exist in other Eu-ropean countries and the absence of these conditions does not make it easy for colleagues in the European Union to take action. And yet it is at this level that the game is now played.

NOTES

* This paper was delivered to the 21st International Congress of Historical Sciences, Amsterdam, on 23 August 2010. I would like to thank Prof Luigi Cajani for organising the roundtable debate and for offering me this forum.

1 A member of the “Milice”, the militia of the Vichy Regime.

2 Madeleine Rebérioux, “Le génocide, le juge et l’historien”, L’Histoire 138 (1990), 92–94. 3 Pierre Vidal-Naquet, Les Assassins de la mémoire, Paris: La Découverte, 1987.

Jörn Rüsen

The Struggle

over Traumatic

Experiences of the

Past in Historical

Culture

Kulturwissenschaftliches Institut Essen; University of Witten/Herdecke

fend the autonomy of historical thinking as a basis of our work as professional histori-ans against any attempts to prescribe his-torical interpretations and representations by the force of law or by political pressure. The presupposition of this intention is a clear distinction between political and judi-cial intentions and norms, on the one hand, and the principles of proper historical think-ing, which constitute historical studies as an academic discipline, on the other. For every professional historian, this distinc-tion is evident. But, unfortunately, it is not as clear as it seems to be at first glance. There are intersections between politics and law and historical thinking as an integral part of our culture. In this article, I would like to ad-dress those principles of historical thinking which mediate between both sides. I think of fundamental principles of historical sense generation, which constitute the particular-ity of history in human culture and lie be-yond the difference between politics, law and academia. If they are sufficiently explicated, it becomes evident why historical thinking always is an issue of politics, so that poli-tics cannot be kept out of the realm of our profession despite the logical difference be-tween a rational argumentation in academia and the power games in politics.

History is a narrative answer to the ques-tion of who the people to whom the histori-ans belong are. Historihistori-ans are specialists in providing a proper and convincing answer to this question of identity. Herein lies the cul-tural function of their work, which, as aca-demic professionals, they cannot abandon.

HISTOREIN VOLUME 11 (2011)

15 The narrative structure of historical thinking and its results in all forms of historical

represen-tation have a specific logic of making sense of the experience of the past for purposes of the temporal orientation in present practical life.1 _{The clear distinction between fact and norm, and}

empirical data and value judgments, loses its plausibility since in the procedure of telling a sto-ry both elements are synthesised. Take the idea of value-free research: We have to realise that this idea can be highly misleading if it really means that historians only use neutral facts and no norms and values in representing the past.

Nevertheless, the idea of value-freedom2 _{can have an acceptable meaning if it means that}

histori-cal statements have another logihistori-cal form than ethihistori-cal, moral or juridihistori-cal statements. Additionally, it opens up and protects a space for rational argumentation in the field of historical culture. In doing so, it makes historical studies an academic discipline that is independent from any obedience to political and ideological prescriptions which may aim at determining the understanding of the past. I don’t wish to go further into this issue of academic autonomy and value-freedom in the hu-manities and social sciences.3_{Instead, I want to look at principles of historical sense generation,}

which span the division of value-freedom and rational argumentation, on the one hand, and po-litical obedience and legitimation by history, on the other. It has become a stereotype to make a clear distinction between the power of historical memory in the cultural life of the people and the academic distance from it.4 _{This may even reach a state of neutrality towards the needs for}

historical orientation in practical life. But this juxtaposition is misleading. A distancing, rational argumentation and the functioning in practical life are systematically interrelated in historical studies. Memory and academia share basic principles of sense generation.

I want to address these principles in the special perspective of the cultural strategies of coming to terms with traumatic historical experiences. For me, the paradigm of these experiences is the Holocaust. Nobody can deny that the Holocaust is both a subject matter of historical research and academic interpretation and an essential element in the historical culture of not only Jews, Germans and all people who were involved in this event – as victims, perpetrators, bystanders, profiteers, witnesses or as simple contemporaries. It has a meaning for every human being. I would like to pick up the German case since it represents a remarkable structural change in historical sense generation. This change took place along the lines of the change of generations and of an intergenerational discourse, and it can be applied to many other cases of dealing with historical traumata.

In an ideal typological manner, we can distinguish three attitudes towards the Holocaust in German identity formation, each of which is typical for a generation.5 _{I would like to characterise them in a}

very short and abstract way as the prewar, and the first and the second postwar generation. To say it in a very personal way: the generation of my parents, my own generation and that of my children.

The attitude of the prewar generation can be characterised as one of concealment. The traumatic experience of the Holocaust could not find a place in a pregiven pattern of historical understand-ing. This was even the case in academic discourse, where the Holocaust did not play an impor-tant role in coming to terms with the recent past in the new field of contemporary history. The acceptance of responsibility for Nazi barbarism would have destroyed the established historical identity of this generation, which was shaped by traditional nationalism.

The second generation was deeply determined by a hidden transference of responsibility onto their innocent shoulders. They had to get rid of this burden and they did so through assuming a moral-ising attitude. Historical identity was brought about by a mentality of distancing oneself from the previous period of German history, by condemning it and the perpetrators, by throwing it out of the field of (positive) sense-bearing historical experience. The postwar generation developed its identity through this negative judgment and the idea of a universal morality that lay behind it. (By the way, it was this attitude that brought about a definite end to the so-called German “Sonder-weg” (special path to modernisation), and which has integrated the political culture of the Federal Republic of Germany into the western tradition of democracy based on human and civil rights.)6

This way of dealing with the Holocaust is deeply ambivalent. Historical identity always needs elements of the past with which the people of the present can identify. In respect to the recent past, there were not very many events for identification, apart from the resistance and opposi-tion to the Nazi regime. Rather, the more sensitive and reflective people identified with the vic-tims. This could only be done by ignoring the pregiven chain of generations, where parents grow into the identity of their children.

For the third generation, this breach could not be continued but had to be overcome. They had to reintegrate the morally guilty generation of their grandparents, and by doing so they brought a good deal of ambivalence into the historical culture and the collective identity of Germany. The most telling indication of this new relationship to the disturbing past of the Nazi period is the Holocaust memorial in Berlin.7 _{I think that my people – to date, at least – are the only ones to}

have erected a monument for their victims in the centre of their capital.

I strongly believe that the German case is not an exemption but a paradigm for a forward-looking European historical culture.8 _{It includes the criteria of a universal morality in dealing with the past by}

overcoming its fatal consequences. A moral judgment based on universal principles makes a strong division between innocent victims and responsible perpetrators. And this division serves as a base line in the identity-forming historical perspective of modern and contemporary history. The distinc-tion between victims and perpetrators is a necessary element of historical understanding, of course. But when it becomes the essence of forming historical identity, it falls into the trap of ethnocentrism. Ethnocentrism is a strategy of identity formation which inserts positive values into one’s self-im-age and negative values into the imself-im-age of the others.9 _{This is even the case when the sense}

crite-ria of universalistic morality were used in forming one’s own historical identity. Because of logical reasons, this use brings about the ethnocentric imbalance between historical evaluation and judg-ment since it makes a clear distinction between good and evil. This can easily be demonstrated by

HISTOREIN VOLUME 11 (2011)

17 the attraction of victimisation in conceptualising historical identity today. There is a corresponding

phenomenon on the other side: the growing culture of officially apologising for misdeeds of one’s own people in the past. (Recently the Japanese prime minister gave an official apology for the treat-ment of the Koreans on the occasion of the 100th anniversary of the annexation of Korea by Japan.) Victims are innocent, and the others are not. And this otherness includes not only the perpetrators. I think the achievement of ambivalence in historical culture is a chance to overcome this moralistic ethnocentrism, without negating universalistic moral principles of historical evaluation and judgment. Apologising is based on the same moral principles as the accusing of perpetrators by the offspring of victims. In this way, both sides share a basic values system. If apologising means that the dark side of one’s own history becomes integrated into the historical self-image of the people, a new concept of historical identity will be the outcome. Here, ways for reconciliation are opened up. But reconciliation needs the acceptance of the other side. And therefore a new element of historical culture has to be developed, namely forgiveness.10 _{There are only a very few examples of a}

histori-cal culture of forgiving – like the Truth and Reconciliation Commission in South Africa – but they do exist and have set new terms of trade in dealing with a burdening past.11

The moralistic attitude in historical culture finds its highly problematic equivalent in the field of identity politics, in the form of laws prescribing correct historical statements and attitudes. If this moralism becomes transformed by apologising and forgiving, identity politics will change as well. This change needs a common attitude towards the past in the cultural processes of identity formation brought about and shared by both the offspring of the victims and the perpetrators as well as of the other participants in the dark events of the burdening past. It must be an attitude that is essentially related to the realm of identity, and should spring from a mental activity which belongs to the essentials of human culture: We are all aware of this attitude – it is the general and fundamental cultural phenomenon of mourning.

The aesthetics of historical culture provide a few, but remarkable, examples of historical mourn-ing.12 _{It is an open question as to what it means to introduce elements of mourning into the}

aca-demic field of history. But it is evident that mourning can be a procedure in intellectual activities like philosophy, so why not in history?

In order to prepare academic historical discourse for the development of these new elements and strategies of sense generation, a change in the basic categories of historical interpretation is neces-sary. Historical thinking is mainly interested in human activity and agency. A corresponding form of human life – which is as elementary and universal as agency – is suffering. This dimension of human life has found much less attentiveness from the historians than the “res gestae” in the human past. This is so evident that a theory of historical consciousness might arrive at the result that it is one of the main functions of historical consciousness to cover, if not to suppress, the memory of suffering. The first attempts are already underway to represent suffering as a basic element of historical experience.13 _{But without a change in basic concepts of historical interpretation, the normal work}

A new awareness of the fundamental importance of human suffering in understanding history is required. It has to be combined with the cultural practice of mourning and forgiving and the new, fundamental elements of ambivalence and ambiguity in the concepts of historical identity. All these elements have the potential to lead to a new form of historical culture in general and of academic discourse in particular. I would not hesitate to characterise these forms as genu-inely humanistic. So our academic criticism of the political misuse of historical cognition and of political interference should not only defend the achievements of an open, rational discourse in historical studies but it should be an incentive for a new humanism in history.

NOTES

1 For more details, see Jörn Rüsen, History: Narration – Interpretation – Orientation, New York: Berghahn, 2005. 2 The classical text on this issue is Max Weber, “‘Objectivity’ in Social Science”, in idem, Sociological

Writ-ings (The German Library, vol. 60), ed. Wolf Heydebrand, New York: Continuum, 1994, 248–259.

3 See Jörn Rüsen, “Historical Objectivity as a Matter of Social Values”, in Joep Leerssen and Ann Rigney (eds), Historians and Social Values, Amsterdam: Amsterdam UP, 2000, 57–66.

4 A typical example is Pierre Nora, “Between Memory and History: Les Lieux de Mémoire”,

Representa-tions 26 (1989), 7–25.

5 For a more detailed argumentation, see Rüsen, History, 163–204.

6 See Heinrich August Winkler, Germany. The Long Road West, 2 vols, Oxford: Oxford UP, 2006, 2007. 7 Jan-Holger Kirsch, Nationaler Mythos oder historische Trauer? Der Streit um ein zentrales

Holocaust-Mahnmal für die Berliner Republik (Beiträge zur Geschichtskultur, vol. 25), Köln: Böhlau, 2003.k

8 See, for example, Klas-Göran Karlsson and Ulf Zander (eds), Echoes of the Holocaust: Historical

Cul-tures in Contemporary Europe, Lund: Nordic Academic Press 2003; Klas-Göran Karlsson and Ulf

Zander (eds), Holocaust Heritage: Inquiries into European Historical Culture, Malmö: Sekel, 2004. 9 See Jörn Rüsen, “How to Overcome Ethnocentrism: Approaches to a Culture of Recognition by

His-tory in the 21st Century”, in Taiwan Journal of East Asian Studies 1/1 (2004), 59–74; also in History and Theory 43 (2004), 118–129.y

10 See Paul Ricoeur, Memory, History, Forgetting, Chicago: University of Chicago Press, 2006; “Memory, History, Forgiveness: A Dialogue Between Paul Ricoeur and Sorin Antohi”, Janus Head 8/1 (2005), d

14–25, available at www.janushead.org/8-1/Ricoeur.pdf, accessed 6 Mar 2011.ff

11 See examples in Mamadou Diawara, Bernhard Lategan and Jörn Rüsen (eds), Historical Memory in

Africa: Dealing with the Past, Reaching for the Future in an Intercultural Context (Making Sense of His-t

tory, vol. 12), New York: Berghahn, 2010.

12 The Vietnam Veterans Memorial in Washington, for example. The issue of mourning in historical culture is addressed in Jay Winter, Sites of Memory, Sites of Mourning: The Great War in European Cultural

His-tory. Cambridge: Cambridge UP 1995; Burkhard Liebsch and Jörn Rüsen (eds), Trauer und Geschichte

(Beiträge zur Geschichtskultur, vol. 22), Köln: Böhlau, 2001; Jörn Rüsen, “Trauma and Mourning in His-torical Thinking”, Journal of Interdisciplinary Studies in History and Archaeology 1/1 (2004), 10–21.y

Criminal Laws on

History: The Case of

the European Union

Luigi Cajani

Sapienza University of Rome

Since the early 1990s, one can observe in Europe a proliferation of memory wars and controversies related to tragic histori-cal events. The reasons are many and both of a domestic and international nature: the multicultural transformation of many soci-eties that has involved the self-assessment of previously silent communities, which de-mand public recognition for what they con-sider their own historical identity; the cri-sis of Cold War political ideologies, which has given representation to political actors which were previously marginalised from the main historical narrative of states;1

tensions with former colonies, which claim reparations for colonial crimes and the slave trade;2 _{and the collapse of the Soviet}

Union, with the birth of new states which want to come to terms with past wounds. A particular feature of these memory wars is the use of the penal code in order to en-force a unique, official interpretation of these events and to punish diverging opin-ions. A corpus of new laws is thus being established, which are often mutually in-fluenced and which have given rise to con-cerns over their impact on the freedom of expression and particularly on the freedom of historical research. Historians are in fact directly targeted by the provisions of these laws, alongside journalists, teachers, poli-ticians and anybody who makes use of his-torical discourse.

A significant example of these conflicts and of the political bias on historical discourse is the Holodomor, the famine of 1932–33 in Ukraine, which is matter of heated contro-versy not only between Russia and Ukraine

but also inside Ukraine. Historians debate on the interpretation of this event: some maintain that it was a genocide planned by the Soviet regime in order to crush Ukrainian resistance against collectivisation while others consider it rather as the consequence of gross mistakes on the part of the regime, which, unable to face an agricultural crisis, actually worsened it but which did not have the intention of targeting the Ukrainian people.3

On 28 November 2006 Ukraine’s parliament passed a law4 _{declaring the Holodomor an act of}

genocide against the Ukrainian people, and added that its public denial should be considered as dishonouring the memory of the millions of victims and humiliating the dignity of the Ukrainian people, and, therefore, be deemed unlawful. The issue was very much debated between the op-posing anti-Russian and pro-Russian fronts, the former represented by President Viktor Yush-chenko, who accepted the famine’s characterisation as genocide, and the latter by his opponent Prime Minister Viktor Yanukovich, who rejected it, arguing that the famine was the outcome of the mass collectivisation of farms which affected the whole Soviet Union and not specifically Ukraine. The divided opinion was mirrored by the vote: only 233 MPs supported the bill – a mini-mum of 226 votes was required for it to be passed – while 200 deputies abstained.

This law had, of course, an international resonance. The Ukrainian government in fact acted in order to have other states recognise the quality of genocide. On 28 May 2008, Canada, where there is a strong community of Ukrainian origin, recognised the “Ukrainian Famine of 1932–33 as an act of genocide” and established an Ukrainian Famine and Genocide (“Holodomor”) Memorial Day,5 _{but without foreseeing a punishment for its denial. Also, the European Parliament}

recog-nised, on 23 October 2008, the Holodomor as “an appalling crime against the Ukrainian people, and against humanity”. The text of the resolution avoided using the term “genocide”, but in any case backed an interpretation which charged the Soviet government with the intention of target-ing Ukraine: “[It] was cynically and cruelly planned by Stalin’s regime in order to force through the Soviet Union’s policy of collectivisation against the will of the rural population in Ukraine.”6

On the opposite side, the Russian Duma on 2 April 2008 approved a statement which expressed sorrow for the famine tragedy which struck much of the Soviet Union in the 1930s, but rejected the charge of genocide, asserting that “there is no historical evidence that the famine was or-ganised along ethnic lines. Its victims were millions of Soviet citizens, representatives of differ-ent peoples and nationalities living largely in agricultural areas of the country.”7

The Parliamentary Assembly of the Council of Europe discussed the Holodomor in early 2010, and was directly affected by the domestic Ukrainian controversy. It received in fact three docu-ments: two, from the Our Ukraine party and the Yulia Tymoshenko Bloc, respectively, which sup-ported the interpretation of the famine as genocide, and another from the Party of Regions, which supported Yanukovych, who in February 2010 succeeded Yushchenko as state president, which asserted that the famine did not fully meet the criteria established for the crime of genocide by the UN Convention on the Prevention and Punishment of the Crime of Genocide of 1948.8 _{On 27}

April 2010 Yanukovych attended a sitting of the Parliamentary Assembly, and when asked about his opinion on this pending issue, declared that the great famine of the 1930s had affected the Volga region, Belarus and Kazakhstan as well as Ukraine. He added that it had been a conse-quence of the policies of the Stalinist regime, and all countries had been affected. To recognise

HISTOREIN VOLUME 11 (2011)

21 the Holodomor as genocide in respect of one or another people, he said, would be incorrect and

unfair. It had been a shared tragedy between all members of the Soviet Union.9

Encouraged in this way, on the following day the Parliamentary Assembly passed a resolution that stated “Millions of innocent people in Belarus, Kazakhstan, Moldova, Russia and Ukraine, which were parts of the Soviet Union, lost their lives as a result of mass starvation caused by the cruel and deliberate actions and policies of the Soviet regime.”10

On the issue of genocide, the resolution avoided a clear position: it simply mentioned that Ukrain-ian law recognised the famine as a genocide, without further comment. This cautious attitude had been actually suggested by the rapporteur, Mevlüt Çavuşoğlu, who observed that it was not opportune to back the thesis of genocide because in Ukraine historians and politicians were not unanimous on that and also because “I firmly believe that politicians, both on the national and on the international level, should avoid being involved in the interpretation of historical facts of the past.”11_{In the context of the current history wars, this was a very significant stance for a}

politi-cian to take.

Yanukovych’s words in Strasbourg show how a political change can bring about change in an official historical interpretation. But Ukrainian law was still there, and on the basis of it Volody-myr Volosiuk, a member of the People’s Movement of Ukraine, a political party which opposed Yanukovych, sued him for this statement and asked the court to oblige the president to apologise before him and the Ukrainian people.12 _{Eventually, after a judicial path through some courts, on 8}

December 2010 the Kyiv Court of Appeals acquitted Yanukovych.13 _{One might think that it would}

have been difficult for the court to condemn the president, but in any case it seems that, despite the law, the behaviour of the Ukrainian courts is not uniform. In fact, in January 2010 an Ukrain-ian court declared Joseph Stalin and several other senior Soviet officials guilty of genocide.14 _But

the following March, a court in the Donetsk region, in eastern Ukraine, refused to prosecute the editor of the Rodnoye Priazovye newspaper, who in an article had written that the Holodomor was not a genocide.15 _{This represents a worrying absence of legal certainty, which reflects the}

split in Ukrainian public opinion.

The prosecution of Holocaust denial

The wave of criminal laws on history has its origin and model in the laws against the denial of the Holocaust. The first one was approved in Israel in 1986, and punished with five years’ im-prisonment “any statement denying or diminishing the proportions of acts committed in the pe-riod of the Nazi regime, which are crimes against the Jewish people or crimes against human-ity, with intent to defend the perpetrators of those acts or to express sympathy or identification with them”.16 _{In this text one must underline two points in order to allow for a comparison with}

similar laws. First, the definition of the criminal conduct: not only the simple and total denial of the event, but also the diminution of its size; and second, the restrictions placed on the prosecu-tion: the aforementioned criminal conduct must be qualified by a clear, positive attitude towards the perpetrators.

Meanwhile, in Europe too the introduction of such a law was discussed as a response to the in-crease in incidents of anti-Semitism, often in connection with extreme right parties, and in cases of Holocaust denials. First came France in 1990 with the so-called Gayssot law (loi Gayssot).17

This law, which had the general intent of suppressing “every act of racism, anti-Semitism or xenophobia”, imposed one year’s imprisonment and a heavy fine (equivalent to €45,000 today) on those who disputed “the existence of one or more crimes against humanity defined by arti-cle 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945”, which made up the legal basis of the Nuremberg trials.18 _{For the identification}

of these crimes against humanity, both the competence of international and French courts was recognised. Concerning the nature of the criminal conduct targeted by the Gayssot law, one must note that the French text uses the verb “contester”, which means not only “to deny” but also “tor

dispute” and “to doubt”. This semantic pluralism produces, therefore, a certain ambiguity in the interpretation of the conduct. With the French law, in any case, the simple criminal conduct is prosecuted, with no need of qualification, as in the Israeli law. The French Human Rights League (Ligue des Droits de l’Homme) criticised the Gayssot law for being useless in the fight against racism and dangerous for freedom of the press and of research:19 _{an argument which often}

re-curs in the debates about prosecuting Holocaust denial. In an article written in 1990, the historian Madeleine Rebérioux added that this law was even superfluous, as shown by the fact that Rob-ert Faurisson, a well-known Holocaust denier, had been convicted20 _{for his statements in 1981,}

when this law did not exist, on the base of the provisions that punished defamation. Moreover, she continued, judges and historians have different tasks and different strategies, which must not be confused: “Historical truth refuses the authority of a state,” she concluded. In a 1996 ar-ticle, she also foresaw that this law would open the way to the definition of an official historical truth also for other genocides.21

Rebérioux’ clairvoyance was confirmed by the subsequent set of memory laws (lois

mémori-elles) that were approved in France under the pressure of various social groups.

French citizens of Armenian descent endorsed the law of 29 January 2001 by which France recognised the “Armenian genocide” in the Ottoman Empire during the First World War.22 _By

its wording, this law thus assessed the existence of an historical event and its interpretation at the same time. While the law did not foresee a punishment for denial, this was soon to come, following the pattern of Holocaust denial. In fact, in April 2006 the Socialist MP Didier Migaud presented a bill on the Armenian genocide that extended the 2001 law by introducing the same penalty established in the Gayssot law. This bill was approved by the National Assembly on its first reading, on 12 October 2006,23 _{but in order to come into force it needed the approval of the}

Senate, which deferred making a decision for years before eventually rejecting it on 4 May 2011. During the debate in the Senate, one of the main arguments introduced by the rapporteur, Jean-Jacques Hyest, was that it was not the task of legislators to give juridical definitions of the past and to connect these definitions with criminal penalties.24

French citizens of black African descent promoted the Taubira law (loi Taubira), approved on 21 May 2001, which defined as crimes against humanity both the slave trade, in the Atlantic and In-dian oceans, and slavery itself, practiced from the fifteenth century onwards “in America, in the

HISTOREIN VOLUME 11 (2011)

23 Caribbean region, in the Indian Ocean and in Europe against the African, Amerindian,

Madagas-can and Indian peoples”.25 _{This law also prescribed that the slave trade and slavery must be}

al-lowed “the position they deserve” both in school programmes and in historical research.26 _This

law, too, did not introduce any penalties.

Initially, these two laws did not arouse any serious concern among historians and history teach-ers, but in 2005 a scandal erupted with the passing, on February 23, of the Mekachera law (loi Mekachera) on French colonialism, promoted by the lobby of the pieds noirs (French citizens repatriated after the end of the Algerian war). The law declared that “The nation expresses its gratitude to women and men who participated in the activities carried out by France in the former French départements in Algeria, Morocco, Tunisia and Indochina and in the other territories pre-viously under French sovereignty.”27

Like the Taubira law, the Mekachera law dictated that the history of the French people overseas, and especially in north Africa, should be allowed the “position it deserves” in academic research; but then it went much further, prescribing that school programmes should also recognise the “positive role” played by the French people in that context.28 _{This latter clause, which enforced}

the precise interpretation of an historical event and therefore directly interfered with historical research and history teaching, immediately raised a storm of protest in France.29 _{The protest}

soon turned even more fiery because of an incident that showed how this new set of laws could become a dangerous tool to attack or blackmail historians. In September 2005, the Collective of Antilleans, Guyanese and Réunionnais (Collectifdom) sued the French historian Olivier Pétré-Grenouilleau, author of an important study on the African slave trade,30 _{on the charge of “denial}

of crimes against humanity”. This charge was based on a newspaper interview31_{in which}

Pétré-Grenouilleau had maintained that the slave trade could not be regarded as a case of genocide and where he criticised the Taubira law in particular because, by defining the slave trade as a crime against humanity, it suggested an inappropriate comparison with the Holocaust. Patrick Karam, the president of Collectifdom, also announced that he would appeal to the competent authorities with a request that Pétré-Grenouilleau be suspended from academic teaching.

The reaction of the academic world was very strong, and led to an appeal entitled Liberté pour l’histoire,32 _{which requested the abolition of all the memory laws, on the grounds that “in a free}

state, neither parliament nor the judicial authorities are entitled to define historical truth”. The mobilisation was eventually successful: indeed, the second clause of art. 4 of the Mekachera law, concerning the teaching of history, was abolished in January 2006, after the Constitution-al Council had declared that French laws could not contain a prescription of that kind,33 _{and in}

the following February Collectifdom, confronted with these protests, withdrew its legal action against Pétré-Grénouilleau.34

Meanwhile, after France other European states had adopted laws against Holocaust denial, with some relevant differences. In 1992 Austria introduced a new article to the Verbotsgesetz (prohi-bition act), the 1947 law against Nazi activities, punishing with one to ten years’ imprisonment (or twenty years’ in case of a particularly serious offense) those who “deny, grossly minimise, approve or try to justify” genocide and other Nazi crimes.35 _{Thus other criminal conducts, typical}

forms of crimes of opinion, were added to the denial category and became very successful, and were adopted by many jurisdictions.

Germany in 1994 added to section 130 of the Strafgesetzbuch (criminal code), under the heading of “Incitement to hatred” (Volksverhetzung), a paragraph which punished with a fine or prison sentence of up to five years “whosoever publicly or in a meeting approves, denies or downplays an act committed under the rule of National Socialism . . . in a manner capable of disturbing the public peace”.36 _{This law came after ten years of parliamentary debates, during which the}

possi-bility of including other crimes against humanity was also discussed, but this idea was dropped because, it was felt, this would have belittled the special responsibility of Germany towards Nazi crimes.37

A Belgian 1995 law punished the “denial, minimisation, justification or approval” of the Nazi gen-ocide with a fine or imprisonment from eight days to one year.38 _{In 2005 the extension of this}

law to cover other genocides was also discussed. The Belgian lower house approved a draft bill which included genocide and other crimes against humanity defined as such by every interna-tional court recognised by Belgium, by the Security Council or the General Assembly of the United Nations, and by a national court in Belgium or any other European Union member state.39 _{But in}

the event the Senate did not approve the project, which has not surfaced since.40

Luxembourg in 1997 introduced a new penal prosecution of racist acts, including art. 457.3 of the penal code, which punished those who “disputed, minimised, justified or denied the existence of one or more crimes against humanity and war crimes defined by article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945”.41 _For

these crimes it recognised the jurisdiction of Luxembourgian, foreign and international courts. The sentence was eight days to six months’ imprisonment and a fine ranging from 10,001 to 1,000,000 francs, or only one of them. These provisions were also extended to cover genocides committed by states other than Nazi Germany, and in these cases only Luxembourgian and in-ternational courts were recognised.

In 2002 Romania decided to punish “organisations and symbols with fascist, racist and xenopho-bic character” and the cult of personalities responsible for crimes against peace and humanity and for war crimes who were found guilty by a national or international court.42 _{In addition, the}

denial of the Holocaust was explicitly mentioned and punished by imprisonment from six months to five years and the suspension of rights.43

Other states have approved laws which punish denial and related criminal conducts in relation to genocide and crimes against humanity in general, without an explicit reference to those per-petrated by the Nazis. Art. 261bis of Switzerland’s penal code, introduced in 1993,44_{punishes by}

a fine or by imprisonment of up to three years those who “deny, grossly minimise or try to jus-tify a genocide or other crimes against humanity”. Under art. 240 of the penal code, in 2007 Por-tugal introduced the punishment for the denial of war crimes, crimes against peace and crimes against humanity, the penality being imprisonment from six months to five years.45_{With no}