Memory laws,mnemonic weapons: The diffusion of a norm across Europe and beyond

Abstract

The diffusion of memory laws across Europe maps onto global trends towards legal memory protection writ large. Through applications of cosmopolitan memory and norm diffusion, this article demonstrates that differences across laws – although they derive language and sentiment from a shared global norm – also adhere to the specific memory politics of the state. The author proposes that three categories of memory law have emerged since the 1980s, each resulting from isomorphic pressures exerted by an international community with expectations of shared sociolegal human rights norms. The article concludes with a case study of recent laws in Russia (2014) and Poland (2018): both illustrative of a new nationalistic paradigm of memory laws as mnemonic weapons in ongoing memory wars. By tracing isomorphic similarities across Europe, this article reveals a mirroring of language that has recently appeared in the United States. It is with an eye towards worldwide shifts in populism that the current research remains urgent. This study offers a theoretical contribution from which memory scholars might draw when considering globally relevant mnemonic trends.

Keywords

Europe genocide denial global norms memory laws national memory politics norm diffusion

The explosive expansion from a national to a global scale set into motion by globalization has required a shift in priorities away from sovereignty towards a set of nation-transcending ideals (Levy and Sznaider, 2006). Shared norms – and states’ acceptance or resistance of them – have become fundamental to the operation of the international system (Dixon, 2017). Legitimacy as a nation state is now irrefutably bound up with adherence to established, purportedly universal, human rights, both in terms of external reputation and legitimacy in the eyes of its own citizens (Finnemore and Sikkink, 1998). Based on ‘universalistic global scripts’, nation states often end up with remarkable similarities across a range of features in spite of the diverse structures and traditions that uphold them (Meyer et al., 1997). Tracing the process of norm diffusion can help to explain how and why this happens.

While norms exist across fields and levels of interaction, this article focuses on the global level in order to examine the transnational spread of the legal protection of certain historical memories. A subtype of memory laws concerning Holocaust denial descends from a post-Holocaust legal climate (Bazyler, 2016), but they did not emerge in its immediate aftermath. As with all human rights norms, it takes time for them to concretize into legislative language. Thus, memory laws did not begin to proliferate until the 1980s and onwards. Now, almost 30 nations prohibit the denial of the Holocaust and other crimes in regulations known as ‘memory laws’. The 2010s saw the emergence of a new character of memory laws in Central Eastern Europe (CEE) and Russia: political gestures that open new areas of inquiry into the legal policing of historical memory on some of its most contentious territory with global implications, as linguistic similarities have been used in recent policing of critical race theory (CRT) in the United States (Ray and Gibbons, 2021).

In this article, I trace the diffusion of memory laws across Europe with attention paid to transnational efforts to unify laws under a ‘common European memory’. Using frameworks of cosmopolitan memory (Levy and Sznaider, 2006) and isomorphism (DiMaggio and Powell, 1983), I demonstrate that differences across memory laws – although they derive language and sentiment from a shared global norm – also adhere to the specific memory politics of the state. I propose three categories of memory law that have emerged since the 1980s, all resulting from isomorphic pressures exerted by an international community with expectations of shared human rights norms.

The article is organized as follows: first, I place the larger concept of legal memory protection in conversation with global norm and diffusion literature. I then outline the recent history of memory laws passed in Europe, analysing both national and transnational policies to show these levels in mutual dialogue. I briefly highlight two recent laws in Russia (2014) and Poland (2018) as illustrative cases which introduce a new nationalistic memory law model with echoes elsewhere in the world. Finally, I draw conclusions about the global implications of memory protection writ large, arguing that memory laws today are used both as mnemonic tools to reinforce existing standards but are also weaponized in nationalistic directions.

Human rights norms and legitimacy

At the most basic level, a norm is a standard of behaviour expected by some collective (Katzenstein, 1996). Norms are typically morally charged, and the decision to adopt them automatically engages with the sense of ‘oughtness’ that they inhabit (Florini, 1996). Key to understanding the evolution of a norm’s influence across spaces, Finnemore and Sikkink’s (1998) life cycle features three stages: norm emergence, norm cascade and internalization. Norm emergence is marked by the presence of norm entrepreneurs: influential actors (individuals, organizations or states) with strong ideas about what represents appropriate behaviour in a given system. Norm entrepreneurs operating in the global sphere work through national and international organizations to engage state actors.

States adopt norms for myriad reasons, including sincere belief in the importance of a norm, or as ‘window dressing’ without intent to actually enforce it (Hafner-Burton and Tsutsui, 2005). The latter is one example of decoupling, which occurs when a state endorses a norm but is unwilling or unable to conform to it. Nonetheless, the norm is accepted at surface level in order to maintain the sense of legitimacy outlined above or to adhere to requirements for funding, for example. A norm reaches a threshold or tipping point when a critical number of states have adopted it. What exactly constitutes a ‘critical mass’ varies, but Finnemore and Sikkink (1998) propose that it requires one-third of the states in a given system. On the other side of the tipping point lies stage two: norm cascade, characterized by rapid regional or international adoption of a norm. Internalization occurs when a norm becomes so pervasive that its acceptance is uncontroversial and virtually automatic. Global norms become institutionalized through the process of isomorphic diffusion at the national level, bringing about a constant back-and-forth between global demands and local engagement with them. Internalization often remains incomplete both as a result of structural differences and decoupling.

Norms generally enter contested spaces in competition with other norms (Finnemore and Sikkink, 1998). Memory laws are frequently in conflict with free speech protections, a tension that receives much attention in existing literature (see, for example, Dworkin, 2006; Garton Ash, 2007). States in a system like the European Union (EU) tend to cite free expression as the reason for not adopting Holocaust denial laws (Bazyler, 2016). Past research shows that these types of contestations nonetheless lend credence to the rejected norm by engaging it in language of legitimacy rather than rejecting it outright (Dixon, 2017).

Norms typically diffuse from core to periphery, bearing important implications for which norms spread and which states are pressured to adopt them (Acharya, 2004). Examining the process of diffusion allows me to identify patterns along the trajectory of memory laws. Through a tracing of the timeline below, I will demonstrate how a specific formulation of legal memory protection – while not yet internalized – is well on its way through a cascade not only in Europe but also with beginnings across the globe.

The rising norm of memory protection

In the aftermath of the world wars, global norms enshrined by human rights and international law proliferated (Boyle and Meyer, 1998). Specifically in response to the Holocaust, legal norms against genocide brought about a new political climate of accountability. The expectation emerged for nation states to recognize past wrongs through public apology and legal engagements like trials and tribunals (Barkan, 2000). In this way, juridification of past events entered the stage as a new criterion of legitimacy (Levy and Sznaider, 2010). This included both the prosecution of direct perpetrators of war crimes and larger efforts towards the denazification of Germany and other European countries (Bazyler, 2016). Thus, laws governing the remembrance of certain historical events came into being as a measure towards protection of victim dignity and to quell rises in antisemitic Holocaust denial.

The term ‘memory law’ encompasses a wide range of legal action concerning the management of the past. Memory laws may include those that recognize state symbols and holidays, commemorative events, the naming of streets and regulations surrounding historical education (Belavusau and Gliszczyńska-Grabias, 2017). Laws that prohibit the denial, justification or minimization of the Holocaust and other crimes against humanity make up what Nikolay Koposov (2018) deems a ‘hard core’ of memory laws (p. 6). This subset of laws governing state-sanctioned accounts of the past is the focus of this study.

While the majority of states that have engaged with this most formal version of memory laws are European, a general political engagement with national pasts is happening in various forms across the world. Outside of Europe, Canada, Israel, Rwanda and Turkey have memory laws or memory law ‘like’ standards in place (MELA, n.d.). In the United States, political memory battles are playing out at the federal and state levels over the formative role of slavery in the nation’s origin story (Ray and Gibbons, 2021). This includes a legal turn with striking similarity to European memory laws, as I will demonstrate. Although the specific content and mnemonic tool varies by place, I argue that the legal policing of memory is well on its way through the norm cascade phase as it continues to spread through Europe and other regions of the world.

Isomorphism

As a sociological term, isomorphism refers to similarities across institutions and the processes through which shared standards arise. DiMaggio and Powell (1983) identify three types of isomorphism in their conceptualization of the term: mimetic, coercive and normative. In mimetic isomorphism, organizations or states look to each other to determine the best action, particularly in times of uncertainty. Most often, new or less secure states/institutions will mirror more established ones. An example of mimetic isomorphism in conversation with memory laws is the boom of laws as a means towards prevention: an attempt to quell rising antisemitism across Europe. Coercive isomorphism occurs in the context of a power imbalance, either in the literal imposition of policy like the European Union Framework Decision (EU FD) of 2008 or softer pressure from powerful states (Gilardi, 2013). Finally, normative isomorphism occurs as a play for legitimacy, especially to maintain membership in a group (like the EU) and/or actual endorsement of the norms in question (Farquharson, 2013). Where coercive isomorphism typically occurs as a top-down process, mimetic and normative are more often parallel pressures from peers (Boxenbaum and Jonsson, 2017). Thus, policymakers often follow the lead of other states – either by election as in normative or mimetic isomorphism and sometimes by force through coercive. These pressures to conform become especially salient when the norm at hand constitutes an incontestable human rights norm. In Table 1, I map critical memory law events onto the three types of isomorphism.

Table 1.

Types of isomorphism.

	Normative	Mimetic	Coercive
Motivation	Out of normative endorsement, desired maintenance of membership	Look to model states and exemplary policies, adopt similar for own context especially in times of uncertainty	Under pressure or force, for example, regulations and sanctions
Application to memory laws	Belief in the legitimacy of Holocaust memory protection; European Union membership; international law-abiding state	Following earlier models, especially Germany and France. Particularly applicable in response to rise in antisemitism	Council of Europe 2003; EU Framework Decision 2008
Case study example: Poland	EU membership	Followed language of earlier laws (1998 version)	Soft pressure from international community in 2018

Theoretical Framework: DiMaggio and Powell (1983).

EU: European Union.

In the memory law timeline section below, I map isomorphic trends across the trajectory of European laws. Because the specific implementation methods differ by state, we expect some level of variation as norms diffuse across place. Still, adjustments made at the local level are typically based upon the original design (Weyland, 2005). Following this logic, a central question of this study asks how isomorphic the diffusion of memory norms is. What degree of linguistic similarity do we find across legislations? Which states do others tend to borrow from? Can we identify fundamental deviations from the original models?

I seek to expand upon existing memory law research by emphasizing the role of international pressure in the diffusion of memory laws as a global norm. In order to explore this process, I analyse translations of existing laws from the population of European states with a memory law in place in order to probe similarities and differences in language, tone and intent. Attention is paid to two existing attempts to unify existing laws transnationally. These are the Council of Europe’s (CoE) 2003 ‘Additional Protocol to the Convention on Cybercrime’ and the ‘EU Framework Decision’ of 2008. This selection allows me to examine the global and local back-and-forth at play. Finally, I consider Russia’s and Poland’s laws as illustrative cases of isomorphic pressures in their establishment of a new paradigm of memory law as mnemonic weapon.

This article offers a distinctly sociological treatment in its focus on theories of norm diffusion as a complement to existing historical and legal works on memory laws: a theoretical contribution that advances the conceptual toolkit from which memory scholars might draw when considering globally relevant mnemonic trends. While the current research is largely limited to Europe, the norm of memory protection more generally is not, suggesting a space for further research into the juridification of memory as a global norm.

Results

Memory law timeline

At the time of writing, nearly 30 European countries have implemented some form of legal action prohibiting the denial of certain crimes. The content of genocide denial itself can take many forms, including outright denial that the event took place, or debating/minimizing the numbers impacted. Arguing that genocidal deaths were the result of some other cause (e.g. non-human-induced famine) or equating victims of genocide to casualties of war can also constitute denial (Gorton, 2015). Penalties range from fines to prison sentences to more creative punishment, as in one Hungarian case that mandated visiting a Holocaust museum in addition to a prison sentence (Hawkins, 2017).

The first two states to legally enshrine prohibitions against Holocaust denial were Germany and Israel in 1985 and 1986, respectively, although Germany’s bill went through some significant evolutions before reaching its all-out denial ban in 1994. Yet, it is France whose 1990 model begets the title of ‘Classical Memory Law’: the one that ‘set the standard for several international agreements and national laws’, many of which followed in its immediate footsteps in a show of both mimetic and normative isomorphism (Koposov, 2018: 82). Of particular significance is the fact that France’s Gayssot Act is the first to reference the International Military Tribunal, a nod which would be repeated by many laws to come. By the mid-1990s, memory laws had risen to the level of a ‘pan-European trend’ (Koposov, 2018: 89).

The first wave to follow Israel, Germany and France included Austria in 1992, then Belgium, Spain and Switzerland, all in 1995. Importantly, this is also the date of Russia’s first proposed memory law bill. Although it failed initially, the attempt is indicative of mimetic pressures analyzed in greater detail below. Shortly thereafter came Luxembourg (1997), Poland (1998), Lichtenstein (1999), the Czech Republic and Slovakia (2001) and Romania (2002). A first transnational effort came in 2003, when the CoE introduced the ‘Additional Protocol to the Convention on Cybercrime’, which encouraged ‘the criminalisation of acts of a racist and xenophobic nature committed through computer systems’, including Holocaust denial. This is the first showing of coercive isomorphism, although the protocol exerts softer pressure due to its optional nature. In spite of the lack of hard mandate, a number of states passed laws in line with its contents. These were Macedonia (2004), Andorra (2005), Cyprus (2006) and Portugal (2007).

While some precedent had been set by the 2003 Protocol, the 2008 EU FD was the first to mandate criminalization without the right to abstain: a blatant act of coercive pressure (Pech, 2011). The passing of the Framework Decision brought about another boom across EU member states and beyond. Among the newly adopted laws were Latvia’s and Malta’s in 2009 and Hungary’s, Lithuania’s and Montenegro’s in 2010. The most recent participants are Greece, which ‘reproduces the wording of the Framework Decision’ in 2014 and Italy in 2016 (Koposov, 2018: 97). Russia’s memory law also passed in 2014 after multiple failed bills and competing legislations. This brief outline demonstrates that the norm of memory protection via memory law is well on its way through the cascade stage, with an estimated 27 laws now on the books. With 20 of those laws represented by members states of the EU, this exceeds the standard of one-third of states in a system to constitute a norm cascade (Finnemore and Sikkink, 1998).

Memory laws by state

While many of the prohibitions appear generally similar, a handful are nearly identical in terminology, closely following the language of Austria and Germany and adding the French model’s nod to the international tribunal. In addition to this verbatim reference, repetitions of ‘publicly or in a meeting’ and variations on ‘minimizes, justifies or plays down’ are particularly isomorphic phrases. In addition to the similarities, a number of distinctions demand attention. While early models exclusively reference the Holocaust (Model 1: Traditional, Table 2), later ones tend to refer to crimes against humanity or genocide more generally (Model 2: Expanded, Table 2): an essential shift away from the Western European emphasis on the Holocaust as universal moral touchstone (Levy and Sznaider, 2006).

Table 2.

Memory law types

	Model 1	Model 2A	Model 2B	Model 3
Label	Traditional	Expanded (General)	Expanded (Specific)	Nationalistic
Contents	Exclusive to Holocaust denial	Invokes international tribunal and cites multiple crimes. Usually Armenian genocide and/or crimes against humanity	Invokes international tribunal and cites multiple crimes, but further specifies communist crimes	Follows model of Holocaust/multiple crimes, with the addition of self-protection
Example legislations	Germany (1994)	France (1990), Luxembourg (1997), EU FD (2008)	Poland (1998), the Czech Republic (2001)	Russia (2014), Poland (2018)

EU FD: European Union Framework Decision.

Luxembourg’s 1997 law, while ‘almost verbatim’ to the Gayssot Act’s penalization clause, was the first to ban ‘denial of Nazi crimes and of other genocides’ in the same law: ‘an approach that later became paradigmatic’ in the EU and provides the structure for the 2008 EU FD (Koposov, 2018: 92). In line with cosmopolitan memory (globalized collective memories that transcend exclusively national or ethnic boundaries (Levy and Sznaider, 2002)), this example shows that in addition to between-nation isomorphism, international legislations also borrowed language from national provisions: evidence for a more multidirectional diffusion. Norms do not simply flow from international (global) to national (local). Instead, local laws also inform the global. Following the EU FD, most laws take that more generalized (non Holocaust-specific) direction.

As with the travelling of any norm across state lines, conflicts arise when they come into contact with diverse memory cultures. Transnational legal efforts like the CoE Protocol and EU FD reflect a now-global memory space: one that requires the disentanglement of memories contained by nations (Lim, 2018). Global memory space brings about not only a linking of world events but also a ‘memory contest’ composed of competing victimhoods. It follows, I argue, that memory laws enshrining genocide denial would deviate along the same lines. A watering down of the FD language was necessary to facilitate its unanimous passing but also made possible relativistic implementations that skirt its original intentions (Pech, 2011). Ultimately, the FD imposed aspirational universal norms against genocide denial, but can be paradoxically bent towards right-wing nationalist projects.

Memory Laws in Russia and Poland

In 1998, Poland implemented the first memory law of this subtype in Eastern Europe (Koposov, 2018). This timeline puts it in step with the larger wave of memory laws in the 1990s, but it also introduced new substantive elements that would lay the groundwork for what was to come in Poland and elsewhere. The 1998 law specifies Nazi and communist crimes: a small but important distinction from neighbouring laws that reference ‘crimes against humanity’ more generally. While the inclusion of communist crimes that horrifically impacted Eastern European countries is certainly justifiable, historians and legal scholars have pointed to a duality created by this new law (here the Expanded Specific Model 2B) in which the suffering of one’s own nation takes centre stage. This shift in intention sets the stage for a more fundamental change of direction for memory laws. (Also fitting this description are the 13 attempted legislations banning Holodomor denial in Ukraine, sometimes proposed on its own and sometimes alongside Holocaust denial, Kasianov, 2022). Following the 1998 Polish model, Eastern European states split, as they went on to replicate either the Polish model (Czech Republic) or the French (Slovakia) (Koposov, 2018).

Any attempt at forging a pan-European unity requires a direct confrontation of diverse memory cultures at the national level (Young, 1994). Tensions are especially high along the supposed division of mnemonic communities by region, as in Western Europe, CEE and sometimes Russia separately: a trifurcation made especially apparent across World War II memory (Melchior, 2016). Western Europe’s selection of the Holocaust as the universal touchstone conflicts with competing victim narratives in CEE and Russia, where copious wartime losses and suffering under communism often take precedence. But because the concept of shared history became a crucial means towards a unified Europe, the symbol of Holocaust memory became an ‘entry ticket’ for reunification efforts (Kasianov, 2022). The early 2000s to present have borne witness to a number of memory clashes as Western Europe reluctantly made room for the recognition of additional crimes in its push for legal protections of Holocaust memory. Recent memory law scholarship has shifted along with a new wave of bills that have cropped up as a result of this complicated history. In this section, I briefly trace the significance of the 2014 Russian law and the 2018 Polish amendment as two case studies in the introduction of Model 3: Nationalistic (Table 2) in which memory laws are weaponized in ongoing wars of the region, symbolic and actual.

Russia

While every nation has its own memory politics to grapple with, Russia has a particularly storied history related to narrative control (Snyder, 2021). Post-World War II memory of the Soviet past has gone through myriad phases. Following a period of repression, a (re)emergence of testimony and research took place in no small part due to the efforts of the organization Memorial International in the late 1980s. Almost immediately, though, restrictions were attempted on the organization’s scope: a signal of what would be a decades-long battle (Adler, 2005).

A string of mnemonic conflicts has intensified, particularly since Vladimir Putin’s 2012 presidential re-election (Maida, 2017). Examples from the past 3 years alone include Putin’s fictitious claim that Poland was to blame for World War II (Reuters, 2020), the ‘watershed moment’ that is the forced closure of Memorial International (Osborn and Kiselyova, 2021) and the string of historical falsehoods in Putin’s address concerning Ukraine on 21 February 2022, 3 days before launching an invasion. No mere rhetoric, these claims have real-world consequences that we have seen play out through the egregious weaponization of fictionalized narratives in ‘legitimizing’ Russia’s multiple aggressions against Ukraine. Many of Russia’s narrative battles have played out on the legal front, including a ‘fake news’ law restricting criticism of the government (Van Sant, 2019) as well as numerous interventions in surveillance, regulation of media use, communication data storage and assembly rights (Maida, 2017).

In line with previous decades of clashes came Russia’s own memory law bids. 1995 saw the first of many unsuccessful proposals, several of which closely followed the language of the initial models (see Appendix 1; and for a comprehensive analysis of Russian memory law history see Koposov, 2018, Chapters 5 and 6). These early bills were rejected by the State Duma for various reasons: imprecise language, procedural barriers, regime change or because certain clauses were already outlawed elsewhere. A divided political climate also played a role in the drafting and reception of each new wave of bills: a partial explanation for the 9-year delay before the successful bill – colloquially known as the ‘Yarovaya Act’ – was accepted by the Duma on 29 April 2014 and signed into law by President Putin on 5 May the same year (Koposov, 2018).

In addition to the logistical reasons for rejection listed above, some early proposals were rejected because they could challenge the Soviet ‘cult of the Great Patriotic War’ by implicating Stalinist crimes along with Nazi crimes, such as a 1996 draft bill that listed ‘crimes of national-socialist, fascist and other regimes (. . .) involved in acts of genocide, war crimes, crimes against peace and humanity, as well as public glorification and attempts to justify the leaders of such regimes’ (Koposov, 2018: 231).

But why would Russia, not itself a member of the EU or party to its coercive pressures, feel the need to pass a Holocaust denial law in the first place? Here, we have mimetic isomorphism on display as Russia initially mirrored the behaviour of its Western European neighbours. Not only did the language of the earlier 1990s bills mimic the first European models, but also Irina Yarovaya – champion of the law that passed in 2014 – referenced the existence of similar Western laws in order to hasten its passing (RT International, 2014). A memory law that imitated the model of the Gayssot Act could be seen as another bid towards credibility through the adoption of a now widely accepted norm.

Russia’s 2014 law echoes the language of the Expanded/Model 2 category (e.g. it references the International Military Tribunal in much the same manner) but deviates from its European predecessors in important ways. Where the 1990s bills indicated the more general term ‘fascism’, the 2000s wave precludes Russia itself from incrimination by specifying ‘Nazism’ according to Koposov (2018). The Yarovaya Act further narrows its language in a decidedly self-protective fashion. In addition to listing criminals of Axis countries (updated from a 2009 draft that prohibited ‘declarations that actions of countries participating in the anti-Hitler coalition were criminal’), it goes on to prohibit the distribution of ‘knowingly false’ information about Russia’s own war activities. A subsequent provision prohibits the ‘distribution of information expressing obvious disrespect’ for ‘the days of military glory and memorable dates of Russia’ (2014).

A side-by-side view of the Expanded Model language alongside Russia’s law makes plain that Russia’s law is couched in the legitimized language of the genocide denial bans that came before it, but it shifts intention towards protecting the state, rather than protecting victims of the state as previous European models intended (Gutman, 2016), a step made more explicit by a 2021 law that bans drawing equivalencies between the actions of Nazi Germany and the Soviet Union (TASS, 2021). These laws take a leap forward in maintaining a selectively heroic image of the past: a general trend rearing its head elsewhere in the world.

Poland

Poland remained a satellite state of Soviet Union until 1989, which both delayed a collective confrontation and laid the ground for a complicated national education vis-à-vis World War II, namely, a conflation of Jewish and Polish suffering (Tobias, 2018). Reports of participation in and profiteering from Nazi crimes emerged from parts of Polish society (e.g. Gross, 2001), but it was also the case that many non-Jewish Poles staunchly resisted Nazi occupation and acted as rescuers. Polish history consists of many such dualities, and it follows that any legal grappling with this past would be equally complicated. The 1998 Act on the Institute of National Remembrance, in addition to its isomorphic memory law components and the novel specification of communist crimes, established the Institute of National Remembrance (Instytut Pamięci Narodowej [IPN]) as an official commission for the prosecution of crimes against the Polish nation: a consequential self-emphasis later adopted by Lithuania’s (2010) and Latvia’s (2014) memory laws. Indeed, Lithuania’s law goes a step further in specifying crimes ‘committed by the USSR or Nazi Germany on the territory of the Republic of Lithuania’, thereby ‘whitewashing’ complicity of individual Lithuanians (Koposov, 2022: 280). Here, we glimpse the beginnings of self-protection largely absent in the Traditional and Expanded memory models.

Then, in February of 2018, as a measure towards defending ‘the good name of Poland’, Polish President Andrzej Duda signed an amendment to the Act on the Institute of National Remembrance that would penalize claims of Polish nation and state complicity in Nazi crimes including the Holocaust (Lou, 2018). The political manoeuvre introduced by the Law and Justice Party came about in part as a defence against the error of referring to Nazi death camps as ‘Polish death camps’: a prevalent mistake due to the location of the six extermination camps in German-occupied Poland (Bethke, 2018). This addition – a ‘U-turn towards the past’ – imposed a fine or imprisonment for a person who accused the Polish nation of collaborating with Nazi Germany (Bucholc and Komornik, 2019). The word nation bears emphasis because the provision specifically targets those who claim a collective Polish action. It does not necessarily bar dialogue about Polish individuals, although critics point to the troubling vagueness of the language. In addition to the 1998 law identifying Nazi crimes, communist crimes and other crimes against humanity, the 2018 amendment further specified the category ‘crimes of Ukrainian nationalists and members of Ukrainian formations collaborating with the Third German Reich’: another weapon in existing memory wars of the region.

The walk back

International response was swift and severe. When French foreign minister Jean-Yves Le Drian was asked what action the EU might take in response to Poland, he responded that he hoped the ‘moral pressure will be strong enough’ (Le Figaro, 2018). To some degree, it was. Here, a key difference emerges in terms of the Polish and Russian cases. Social pressure is a key component of isomorphic coercion, such that ‘the likelihood that an actor will violate a norm decreases as the social pressure to conform increases’ (Ring, 2014: 31). A target nation must first be sensitive to the pressures administered, largely based on ‘international image’ (Risse et al., 1999: 38): one Russia has regularly flouted. However, Poland’s role as an EU member state desirous of good standing increases its likelihood of responding to international pushback (Taras, 2003). In addition to a lingering warning from the European Commission, which ‘threatened to strip Poland of voting rights’ due to additional actions beginning in 2015, came particularly vocal contestations from Israel and the United States (Kershner and Berendt, 2018). Thus, coercive isomorphism ensured that a mere 4 months after the announcement of its addendum, international reports shifted to announce that Poland was walking back the criminalization aspect of its law, although the non-criminal civil suit options would remain (Bucholc and Komornik, 2019).

Human rights norms have reached a level of incontestability such that states do not have the freedom to deny them outright and remain in good standing. In line with isomorphism, they must argue that their approach mirrors other states’ or engage competing norms (Dixon, 2017). Russian and Polish officeholders attempted legitimacy in exactly this way. At a meeting in January of 2014, Irina Yarovaya urged prioritization of the Russian bill on the grounds that ‘similar laws’ had existed ‘in other countries, such as Germany, Austria and Belgium for a long time already’ (RT International, 2014). Four years later in February 2018, Polish Prime Minister (PM) Morawiecki released a video statement in support of the Polish amendment stating that ‘similar laws operate in other countries across Europe and the world’ (Kancelaria Premiera, 2018). Both politicians subsumed the deviations of these particular laws in the legitimacy of the Western European models that came before them. Just a few months later, PM Morawiecki maintained that ‘those who say that Poland may be responsible for the crimes of World War II deserve jail terms’ but acknowledged that ‘we operate in an international context, and we take that into account’ regarding the walk back of the criminal provision (Noack, 2018): a clear demonstration of coercive international pressure regarding accepted norms.

Conclusion

Overall, we see all three types of isomorphic pressures at play as legal memory protections cascade through Europe and elsewhere: (1) mimetic across the board, as states look to each other (and especially to leaders in the area: Germany, France) in the adoption of policies, (2) normative in that nations were compelled to get on board with memory laws to maintain legitimate standing in the international community and (3) coercive in the case of the 2008 EU FD and later in response to Poland’s 2018 amendment, portions of which were walked back in response to external demand.

There is an expectation of willingness to legally engage with past abuses (Levy and Sznaider, 2010), but this engagement is expected to be self-reflexive: a component of state legitimacy that the Polish and Russian cases defy. In its conclusions that global movements have shifted the memory-scape while simultaneously allowing the nation as container, this research contributes to ongoing memory studies dialogue in its transnational third wave. As suggested by Verovšek (2021), if there is common ground to be found across Europe and towards a global solidarity, it must confront and accommodate diverse memory cultures.

Travelling norms: echoes abroad

When it comes to global norms, localization to national memory politics is allowed to a point: but third-order changes as displayed by Model 3 (Table 2) apparently stretch the paradigm past its limit. The Russian and Polish laws of the 2010s signalled a significant departure from the existing paradigm of protected memory, and in so doing, created a new nation-centric model in a transnational political climate that no longer accepts a purely nationalist focus. Indeed, as of January 2020, Lithuania began following that path for itself as it drafted legislation to prohibit claims of Lithuanian collaboration in the Holocaust, following a meeting with Polish legislators over their ‘common challenge’ of historical memory (Liphshiz, 2020).

While the implications for European memory politics are significant in themselves towards the goal of a common memory culture (Sierp, 2014), the diffusion of memory protection has a global impact as well. In his influential framework of multidirectional memory, Michael Rothberg (2009) posits that Holocaust memory often serves as a vehicle for other types of memory. The nationalistic legal examples from Poland and Russia exemplify not only such a reliance on Holocaust memory as vehicle but also a manipulation of its legitimacy to push through nationalist narratives: a political manoeuvre that is simultaneously occurring in a wholly different historical context thousands of miles away.

Historians reacting to backlash over CRT in the United States – which draws a line from past to present-day racism, stating that white supremacy is embedded within social institutions (Fleming, 2018) – have noted a connection between new US proposals and nationalist-leaning memory laws in Europe (see Gessen, 2021; Snyder, 2021), but this is the first study to my knowledge to draw a direct linguistic link between these new policies and diffused models of Holocaust denial laws. In the clearest example of this, the Florida Department of Education (2021) couches its restriction in the language of Holocaust denial in striking similarity to the Russian and Polish laws above. Rule 6A-1.094124 of the Florida Administrative code, effective 26 July 2021 begins:

Examples of theories that distort historical events and are inconsistent with State Board approved standards include the denial or minimization of the Holocaust, and the teaching of Critical Race Theory . . . (see Appendix 1 for full language).

The meeting of Holocaust memory and slavery in the United States is far from novel (Rothberg, 2009), but this particular legal linking invites further research as it reveals the same tensions between critical inquiry, free speech and state-sanctioned history as the memory laws that came before it. While Florida’s CRT ban is the only one to my knowledge that invokes Holocaust denial alongside it, a string of similar proposals skew towards what Gutman (2016) typifies as mandating a positive perception of national history. Furthermore, all three examples (Russia 2014, Poland 2018, and the Florida code of 2021) use accepted models of Holocaust denial language as a vehicle to transport their chiefly nationalistic concerns: multidirectional memory in a more subversive form (Rothberg, 2009).

Where the Traditional and Expanded memory law models were initially borne from an intention to protect the dignity of victims and towards the prevention of future crimes, memory laws of type 3 remove the self-reflective lens of atonement, reject responsibility while holding tight to victimhood and establish that national pride takes precedence. Memory laws also go beyond mere symbolic relevance. The political climate created by laws of type 3 discourages historical scholarship and inquiry for fear of punishment. Beyond recent legal cases that have been prosecuted in Russia and Poland (see Belavusau et al., 2021), memory laws map onto material memory wars with real, physical consequences as we have seen in Russia’s continued weaponization of false narratives for geopolitical gain. Because a rise in populist memory control is not limited to CEE, it is with an eye towards the worldwide trend that the current research remains urgent. As Genevieve Zubrzycki warned during a recent discussion of Poland’s 2018 law, the undoing of damage takes much longer than its planting (Zubrzycki and Rothberg, 2021).

Footnotes

Appendix

Appendix 1.

Select memory law texts.

State	Original law name	Year passed	Original text	English title	Translated text	Source
France	Loi no 90-615 du 13 juillet 1990 tendant a reprimer tout acte raciste, antisemite ou xenophobe	1990	Seront punis des peines prévues par le sixième alinéa de l’article 24 ceux qui auront contesté, par un des moyens énoncés à l’article 23, l’existence d’un ou plusieurs crimes contre l’humanité tels qu’ils sont définis par l’article 6 du statut du tribunal militaire international	The Gayssot Act	Those who have disputed, by one of the means set out in Article 23, the existence of one or more crimes against humanity as defined by Article 6 of the statute of the international military court will be punished with the penalties provided for in the sixth paragraph of Article 24	Available at https://www.legifrance.gouv.fr/loda/id/JORFTEXT000000532990/
Austria	Verbotsgesetz 1947: Bundesgesetzblatt für die Republik Österreich (Verbotsgesetz Novelle 1992)	1992, updated from 1948	§ 3 h. Nach § 3 g wird auch bestraft, wer in einem Druckwerk, im Rundfunk oder in einem anderen Medium oder wer sonst öffentlich auf eine Weise, daß es vielen Menschen zugänglich wird, den nationalsozialistischen Völkermord oder andere nationalsozialistische Verbrechen gegen die Menschlichkeit leugnet, gröblich verharmlost, gutheißt oder zu rechtfertigen sucht (Freiheitsstrafe von einem bis zu zehn Jahre . . . oder Freiheitsstrafe von zehn bis zu zwanzig Jahren, bei besonderer Gefährlichkeit des Täters)	Prohibition Act 1947: Federal Law Gazette for the Republic of Austria (Prohibition Act Amendment 1992)	Anyone who in a printed work, on the radio or in another public medium . . . denies, grossly downplays, endorses or seeks to justify the National Socialist genocide or other National Socialist crimes against humanity . . . shall be punished (with imprisonment from 1 to up to 10 years, and in cases of particularly dangerous suspects or activity, be punished with up to 20 years imprisonment)	Available at https://www.ris.bka.gv.at/Dokumente/BgblPdf/1992_148_0/1992_148_0.pdf
Germany	Strafgesetzbuch (StGB), § 130 Volksverhetzung	1994	(3) Mit Freiheitsstrafe bis zu fünf Jahren oder mit Geldstrafe wird bestraft, wer eine unter der Herrschaft des Nationalsozialismus begangene Handlung der in § 6 Abs. 1 des Völkerstrafgesetzbuches bezeichneten Art in einer Weise, die geeignet ist, den öffentlichen Frieden zu stören, öffentlich oder in einer Versammlung billigt, leugnet oder verharmlost;	Amendment of the Criminal Code Section 130(3), Incitement of Masses	(3) Anyone who publicly commits an act of the type specified in Section 6(1) of the Code of Crimes against International Law, committed under National Socialism, or in a meeting approves, denies or downplays in a manner that is likely to disturb public peace shall be punished with imprisonment of up to 5 years or a fine;	Available at https://www.gesetze-im-internet.de/stgb/__130.html and https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html
			(4) Mit Freiheitsstrafe bis zu drei Jahren oder mit Geldstrafe wird bestraft, wer öffentlich oder in einer Versammlung den öffentlichen Frieden in einer die Würde der Opfer verletzenden Weise dadurch stört, dass er die nationalsozialistische Gewalt-und Willkürherrschaft billigt, verherrlicht oder rechtfertigt		(4) Any person who, in public or in a gathering, disturbs the public peace in a manner that violates the dignity of the victims by approving, glorifying or justifying the National Socialist rule of violence and despotism shall be punished with imprisonment of up to 3 years or a fine
Russia	O vneseniyi izmemeniya v Ugolovnyi kodeks Rossiyskoy Federatsiyi	1996 (proposed, did not pass)		Draft Law No. 96027807-2: On Introducing a Change to the penal Code of the Russian Federation	(Four years incarceration for) Public justification, approval, glorification or denial and gross diminishing of the crimes of national-socialist, fascist and other regimes that had been involved in acts of genocide, war crimes, crimes against peace and humanity, as well as public glorification and attempts to justify the leaders of such regimes that have been called criminal by the decisions of international tribunals	Draft law printed in English, Koposov 2018: 231
Luxembourg	Loi du 19 juillet 1997 complétant le code pénal en modifiant l’incrimination du racisme et en portant incrimination du révisionnisme et d’autres agissements fondés sur des discriminations illégales	1997	Est puni d’un emprisonnement de huit jours à deux ans et d’une amende de 251 euros à 25.000 euros ou de l’une de ces peines seulement celui qui (. . .) a contesté, minimisé, justifié ou nié l’existence d’un ou de plusieurs crimes contre l’humanité ou crimes de guerre tels qu’ils sont définis par l’article 6 du statut du tribunal militaire international	Law of 19 July 1997 supplementing the penal code by modifying the criminalization of racism and by criminalizing revisionism and other acts based on illegal discrimination	Whoever . . . contested, minimized, justified or denied the existence of one or of many crimes against humanity, as defined by Article 6 of the Statute of the International Military Court . . . shall be punished with imprisonment from 8 days to 2 years and with a fine	Available at https://legilux.public.lu/eli/etat/leg/loi/2011/02/13/n3/jo
Poland	Ustawa z dnia 18 grudnia 1998 r. o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu	1998	Art. 1. reguluje dokumentÛw dotyczących popełnionych na osobach narodowości polskiej lub obywatelach polskich innych narodowości w okresie od dnia8 listopada 1917 r. do dnia 31 lipca 1990 r.:– zbrodni nazistowskich, – zbrodni komunistycznych, – innych przestępstw stanowiących zbrodnie przeciwko pokojowi, ludzkości lub zbrodnie wojenne//(Rozdział 7, Art. 55) Kto publicznie i wbrew faktom zaprzecza zbrodniom, o których mowa w art. 1 pkt 1, podlega grzywnie lub karze pozbawienia wolności do lat 3. Wyrok podawany jest do publicznej wiadomości	Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation (Chapter 7, Article 55)	Chapter 1, Article 1 regulates documents concerning (a) – the Nazi crimes, – the communist crimes, – other crimes against peace, humanity or war crimes, perpetrated on persons of Polish nationality or Polish citizens of other nationalities between 1 September 1939 until 31 July 1990//(Chapter 7, Article 55) Anyone who publicly and contrary to the facts denies crimes referred to in Article 1 . . . shall be subject to a fine or the penalty of imprisonment of up to 3 years	Available at https://isap.sejm.gov.pl/isap.nsf/download.xsp/WDU19981551016/O/D19981016.pdf/ and https://www.legal-tools.org/doc/fc69d7/pdf/
Russia	O vnesenii izmeneniya v Ugolovnyi kodeks Rossiyskoi Federatsii	2009 (Draft)		Draft Law No. 197582-5 – ‘On a Change to the Penal Code of the Russian Federation’/Presented by United Russia	Distortion of the Judgement of the Nuremberg Tribunal or of the judgements of national courts or tribunals based on the Judgement of the Nuremberg Tribunal, with the aim of fully or partially rehabilitating Nazism and Nazi criminals; declarations that actions of countries participating in the anti-Hitler coalition were criminal, and also the public approval and denial of Nazi crimes against peace and the security of humanity shall be punishable by a fine . . . or up to 3 years imprisonment	Draft law printed in English, Koposov 2018: 268
Russia	Федеральный закон г. N 128-ФЗ о введении ответственности за реабилитацию нацизма	2014	1. Отрицание фактов, установленных приговором Международного военного трибунала для суда и наказания главных военных преступников европейских стран оси, одобрение преступлений, установленных указанным приговором, а равно распространение заведомо ложных сведений о деятельности СССР в годы Второй мировой войны, совершенные публично, – наказываются штрафом в размере до трехсот тысяч рублей или в размере заработной платы или иного дохода осужденного за период до двух лет, либо принудительными работами на срок до трех лет, либо лишением свободы на тот же срок. 3. Распространение выражающих явное неуважение к обществу сведений о днях воинской славы и памятных датах России, связанных с защитой Отечества, а равно осквернение символов воинской славы России, совершенные публично, – наказываются штрафом в размере до трехсот тысяч рублей или в размере заработной платы или иного дохода осужденного за период до двух лет, либо обязательными работами на срок до трехсот шестидесяти часов, либо исправительными работами на срок до одного года	Federal Law No. 128-FZ on the introduction of responsibility for the rehabilitation of Nazism or ‘The Yarovaya Act’	354(1): Denial of the facts established by the verdict of the International Military Tribunal for the trial and punishment of the main war criminals of the European Axis countries, approval of the crimes established by the said verdict, as well as the dissemination of knowingly false information about the activities of the USSR during World War II, committed publicly, shall be punishable by a fine . . . or by compulsory labour for a term of up to 3 years, or by deprivation of liberty for the same term. (3) Distribution of information expressing obvious disrespect for the society about the days of military glory and memorable dates of Russia related to the defence of the Fatherland, as well as desecration of the symbols of military glory of Russia, committed publicly, shall be punishable by a fine . . . or by compulsory works for a term of up to 360 hours, or by corrective labour for a term of up to 1 year	Available at https://rg.ru/documents/2014/05/07/reabilitacia-dok.html
Poland	Ustawa z dnia 26 stycznia 2018 r. o zmianie ustawy o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu	2018	Kto publicznie i wbrew faktom przypisuje Narodowi Polskiemu lub Państwu Polskiemu odpowiedzialność lub współodpowiedzialność za popełnione przez III Rzeszę Niemiecką zbrodnie nazistowskie określone w art. 6 Karty Międzynarodowego Trybunału Wojskowego załączonej do Porozumienia międzynarodowego w przedmiocie ścigania i karania głównych przestępców wojennych Osi Europejskiej . . . lub za inne przestępstwa stanowiące zbrodnie przeciwko pokojowi, ludzkości lub zbrodnie wojenne lub w inny sposób rażąco pomniejsza odpowiedzialność rzeczywistych sprawców tych zbrodni, podlega grzywnie lub karze pozbawienia wolności do lat 3. (This act also adds to the crimes defined in article 1: ‘zbrodni ukraińskich nacjonalistów i członków ukraińskich formacji kolaborujących z Trzecią Rzeszą Niemiecką’)	Act of 26 January 2018 amending the Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation	Article 55a. Whoever publicly and contrary to the facts assigns to the Polish Nation or the Polish State responsibility or co-responsibility for the Nazi crimes committed by the Third German Reich in Article 6 of the Charter of the International Military Tribunal annexed to the International Agreement on the prosecution and punishment of the major war criminals of the European Axis . . . or for other crimes constituting crimes against peace, humanity or war crimes, or otherwise grossly diminishes the responsibility of the actual perpetrators of these crimes, shall be subject to a fine or imprisonment for up to 3 years. (This act also adds to the crimes defined in Article 1: ‘crimes of Ukrainian nationalists and members of Ukrainian formations collaborating with the Third German Reich’)	Available at https://orka.sejm.gov.pl/proc8.nsf/ustawy/771_u.htm
Florida (the United States)	Department of Education, Rule 6A-1.094124 Required Instruction Planning and Reporting. Section 3b	2021	Instruction on the required topics must be factual and objective, and may not suppress or distort significant historical events, such as the Holocaust, slavery, the Civil War and Reconstruction, the civil rights movement and the contributions of women, African American and Hispanic people to our country, as already provided in	NA	NA	Available at https://info.fldoe.org/docushare/dsweb/Get/Document-9177/dps-2021-66.pdf
			Section 1003.42(2), F.S. Examples of theories that distort historical events and are inconsistent with State Board approved standards include the denial or minimization of the Holocaust, and the teaching of Critical Race Theory, meaning the theory that racism is not merely the product of prejudice, but that racism is embedded in American society and its legal systems in order to uphold the supremacy of white persons. Instruction may not utilize material from the 1619 Project and may not define American history as something other than the creation of a new nation based largely on universal principles stated in the Declaration of Independence
Transnational
Council of Europe	Additional Protocol to the Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems (Article 6:1)	2003	Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimizes, approves or justifies acts constituting genocide or crimes against humanity, as defined by international law and recognized as such by final and binding decisions	NA	NA	Available at https://rm.coe.int/168008160f
			of the International Military Tribunal, established by the London Agreement of 8 August 1945 or of any other international court established by relevant international instruments and whose jurisdiction is recognized by that Party
European Union	Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law. (Article 1:d)	2008	Each member state shall take the measures necessary to ensure that the following intentional conduct is punishable: publicly condoning, denying or grossly trivializing the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group	NA	NA	Available at https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32008F0913

USSR: Union of Soviet Socialist Republics; NA: not available.

Acknowledgements

Previous versions of this article were presented at the 2020 meeting of the European Network Remembrance and Solidarity and the 2021 meeting of the Association for the Study of Nationalities. The author is grateful to participants of both conferences and to her fellow workshop participants in the University of Massachusetts Amherst’s 2021 New Directions in Law and Society Graduate Student and Junior Scholar Workshop for their helpful feedback on early drafts. The author also specially thanks Dr Daniel Levy, Dr Carrie Shandra and the anonymous reviewers at Memory Studies for their insightful comments at various stages.

ORCID iD

Danielle Lucksted

Author biography

Danielle Lucksted is a PhD student in the Department of Sociology at Stony Brook University. Her research intersects memory studies and international law and society, with particular concentrations on human rights norms, memory laws and a comparative study of atrocity memorialization. She received her MA in Human Rights from University College London in 2014 and her MA in Humanities and Social Thought from New York University in 2019. Danielle currently serves as a student representative for the Sociology of Human Rights section of the American Sociological Association.

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