FORGET ‘MEMORY LAWS’
By Timothy Garton Ash

Los Angeles Times
October 16, 2008
CA

It is not the business of any political authority to define historical
truth.

Among the ways in which freedom is being chipped away in Europe,
one of the less obvious is the legislation of memory. More and more
countries have laws saying you must remember and describe this or
that historical event in a certain way.

The wrong way depends on where you are. In Switzerland, you get
prosecuted for saying that the terrible thing that happened to
the Armenians in the last years of the Ottoman empire was not a
genocide. In Turkey, you get prosecuted for saying it was. What
is state-ordained truth in the Alps is state-ordained falsehood
in Anatolia.

Of all the countries in Europe, France has the most intense and
tortuous recent experience with "memory laws." It began rather
uncontroversially in 1990, when denial of the Nazi Holocaust of the
European Jews, along with other crimes against humanity defined by
the 1945 Nuremberg Tribunal, was made punishable by law. In 1995,
historian Bernard Lewis was convicted by a French court for arguing
that, on the available evidence, what happened to the Armenians might
not correctly be described as genocide according to the definition
in international law.

A further law, passed in 2001, says the French Republic recognizes
slavery as a crime against humanity and that this must be given
its "consequential place" in teaching and research. A group
representing some overseas French citizens subsequently brought
a case against the author of a study of the African slave trade,
Olivier Petre-Grenouilleau, on the charge of "denial of a crime against
humanity." Meanwhile, yet another law was passed, from a very different
point of view, prescribing that school curricula should recognize the
"positive role" played by the French presence overseas, "especially
in North Africa."

Fortunately, at this point a wave of indignation gave birth
to a movement called Liberty for History. The case against
Petre-Grenouilleau was dropped and the "positive role" clause
nullified. But it remains incredible that such a proposal ever made
it to the statute book in one of the world’s great democracies and
homelands of historical scholarship.

This kind of nonsense is all the more dangerous when it wears the mask
of virtue. A perfect example is a directive drafted by the European
Union in the name of "combating racism and xenophobia." The proposed
rule suggests that "publicly condoning, denying or grossly trivializing
crimes of genocide, crimes against humanity and war crimes" should be
"punishable by criminal penalties of a maximum of at least between
one and three years imprisonment."

Some countries with a strong free-speech tradition, including Britain,
objected to this, so the proposed agreement now also says that "member
states may choose to punish only conduct which is either carried out
in a manner likely to disturb public order or which is threatening,
abusive or insulting." So in practice, countries will continue to do
things their own way.

Despite its manifold flaws, this proposed directive was approved by
the European Parliament in November 2007, but it has not been brought
back to the Justice and Home Affairs Council for final approval. I
e-mailed the relevant representative of the current French presidency
of the EU to ask why, and just received this cryptic but encouraging
reply: "…It is suspended to some outstanding parliamentary
reservations." Merci, Madame Liberte.

Let me be clear. It is very important that nations, states and peoples
face up, solemnly and publicly, to the bad things done by them or in
their name. The West German leader Willy Brandt’s falling silently to
his knees in Warsaw, before a monument to the victims and heroes of
the Warsaw Ghetto, is, for me, one of the noblest images of postwar
European history. To face up to these things, people have to know
about them in the first place. So they must be taught in schools as
well as publicly commemorated.

But before they are taught, they must be researched. The evidence must
be uncovered, checked and sifted. It’s this process of historical
research and debate that requires complete freedom — subject only
to tightly drawn laws of libel and slander.

This week, a group of historians and writers to which I belong pushed
back against these kinds of dangerous memory laws. In an article
published in Le Monde last weekend, we stated that in a free country,
"it is not the business of any political authority to define historical
truth and to restrict the liberty of the historian by penal sanctions."

The historian’s equivalent of a natural scientist’s experiment is to
test the evidence against all possible hypotheses, however extreme,
and then submit his most convincing interpretation for criticism by
professional colleagues and for public debate. This is how we get
as near as one ever can to truth about the past. How, for example,
do you refute the absurd conspiracy theory, which apparently still
has some currency in parts of the Arab world, that "the Jews" were
behind 9/11? By forbidding anyone from saying that, on pain of
imprisonment? No. You refute it by refuting it. By mustering all
the available evidence, in free and open debate. This is not just
the best way to get at the facts; ultimately, it’s the best way to
combat racism and xenophobia too.

Timothy Garton Ash, a contributing editor to the Opinion pages, is
a senior fellow at Stanford’s Hoover Institution and professor of
European studies at Oxford University.