French Memory Laws. For a Better Past Henry Rousso
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“The function of law is to settle the future. The past is no longer in its power” Jean-Etienne Portalis, 18411
On February 7, 2018, two far right recently elected deputies presented a bill before the Parliament to express a national acknowledgment for the mass crimes committed by the Republican armies against the Vendeans in 1793-1794, during the French Revolution.2 It was rejected like three previous equivalent texts, presented in 2007, in 2012, and in 2013. All three included one single article: “The French Republic acknowledges the genocide of 1793-1794”.3 The 2018 bill no longer used the concept of “genocide”, but the political message was the same: what has been done for several other mass crimes in history has to be done for this particular episode. And the text added: “The Republic will be all the stronger as it will recognize its weaknesses, its errors and its faults. It cannot keep silent about what is a stain in its history [and] this bill won’t open the way to sanctions or reparations that, after two centuries, would be meaningless”.4
1 “L’office des lois et de régler l’avenir. Le passé n’est plus en leur pouvoir.” Jean-Étienne-Marie Portalis, Discours préliminaire du premier projet de Code civil. Discours prononcé le 21 janvier 1801 et le Code civil promulgué le 21 mars 1804. Foreword by Michel Massenet, Bordeaux: Éditions Confluences, 2004, p. 81.
2 ”Proposition de loi visant à la reconnaissance des crimes commis contre la population vendéenne en 1793-1796 et annulant les lois en exécution desquelles ils ont été commis, présentée par Mesdames Emmanuelle Ménard et Marie- France Lorho, députées”, Assemblée nationale, 7 February 2018.
3 See for example: ” Proposition de loi relative à la reconnaissance du génocide vendéen de 1793–1794”, présentée par MM. Lionel Luca, Hervé de Charrette, Mme Véronique Besse, etc.”, Assemblée nationale, 21 February 2007.
4 Id. 2
These bills looked like similar laws voted in the previous years, especially the 29 January 2001 Act, recognizing the Armenian genocide, or the 21 May 2001 Act, defining Slavery as a crime against humanity. While framed in a very different political perspective, it used a similar narrative expressing a moral obligation to pay a tribute to forgotten victims in order to reinforce national identity and unity. However, it didn’t ask for any kind of reparation or retribution, procedures that the far right has often denounced when it challenged most of the public policies of memory implemented in France since the 1990’s.
Everyone knew that none of these bills recalling the fate of the Vendeans had any chance to pass. The issue has been a well-known and traditional marker for the extreme right. The concept of “genocide”, first used in 1986 by Reynald Seicher, a historian and an activist5, didn’t convince more than a bunch of right-wing intellectuals. For most reliable historians, the war in Vendée, as it was called during the event itself, had nothing to do with a mass crime targeting a specific group and resulting from a planned systematic violence to exterminate the group as such. At the same moment, many other insurgent movements all over France were repressed by the revolutionary government, and the Vendeans didn’t represent an “ethnic” target. On the contrary, this is the Revolution repression which created a new identity afterwards, due to the huge death toll in the area: around 200 000 casualties. The Republican armies committed numerous atrocities against civilians: mass killings, rapes, plundering, destruction of villages.6 The event marked the memories for a long time at a local, national, and even international level, indeed leaving a stain on the Revolution’s legacy. If one accepts to use contemporary legal categories, these massacres could have been targeted as a violation of article 3 of the 1949 Geneva convention about prisoners of war in a non-international conflict or even as crimes against humanity, but not qualified them as a genocide, which doesn't diminish their seriousness. Those who raised this issue in the mid-1980’s, in the context of the anamnesis of the Nazi crimes in Europe, wanted to challenge the memory of the Holocaust and to draw a dubious comparison. These
5 Reynald Seicher, Le Génocide franco-français. La Vendée-Vengé. Foreword by Jean Meyer. Paris : Presses Universitaires de France, 1986.
6 Jean-Clément Martin, ”Sur la guerre de Vendée et le concept de 'génocide'. Une mise au point historique,
Invention of a tradition
To understand the French debates over the memory laws, one must keep in mind some particularities of its legal and political system. First, in principle, according to the French political traditions, the Parliament is not allowed to deliver general statements. Its role is to produce the law, which is actually the only way to express an opinion on a given topic, including historical or memorial issues. Second, before being adopted, a bill can be introduced in the Parliament agenda either by the government as a "project" (“projet de loi”), or by a group of deputies as a "proposal" (“proposition de loi”). Most of memory laws came from a parliamentary initiative, reflecting more or less the desire to fulfill the claims of associations or specific civil society groups, and they have been adopted with the support of the government. Last but not least, unlike international law and many other national cases, the 1994 French criminal code splits crimes against humanity into two categories: genocide and “other” crimes. In addition, for historical reasons linked to the fear seeing officers sued after the end of the Algerian war, France didn't sign the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.7 As a consequence, only crimes against humanity are imprescriptible whereas war crimes benefits from a statute of limitations after twenty years until recently (now, thirty years). These singularities raised many specific issues related to the application of such criminal qualifications to historical events. At an international level, the notion of crime against humanity, defined by the 1945 London Agreement creating the International
7
Military Tribunal, was applied retroactively to the Nazi crimes at Nuremberg, when the notion of genocide defined by the 1948 Convention was not retroactive and has never been judicially applied to any crime committed before, including the Holocaust. By introducing the genocide as a sub-category of crimes against humanity, the new French penal code created a very particular situation in leaving open the possibility that the legal notion of genocide could or could not be applied to events occurred before 1994 or 1948, mainly the Armenian genocide.
In France, the concept of “loi mémorielle”– which influenced the English notion of “memory law”8 – appeared for the first time after a fierce controversy about a text voted into law on 24 February 2005, expressing the “Nation’s gratitude for the Français rapatriés”. This law referred to the million or so of people in Algeria with a French or a European background, forced to find an asylum in France in 1962, after the Algerian war. For many right-wing politicians, these victims didn’t get the same attention as other categories, and their fate was neglected in French national memory. As a matter of fact, France began to cope with its colonial past in the 1990’s mainly focusing on the wrongdoings she did as a colonial power, for instance the large-scale practice of torture in Algeria against French or Algerian anti-Colonialists. Emphasizing the fate of those who were obliged to leave their native country and who suffered because of the independence of the former colony wasn’t neutral at all: it shows how each political camp may have its own “good victims”, in a well- known process of competition. Meanwhile, this wasn’t the law as such that provoked the dispute – few voices openly criticized the idea of recalling the fate of these people – but just one article, eventually withdrawn, requiring the school curricula “to acknowledge the
8 On this issue, see Nikolay Koposov, Memory laws, memory wars : the politics of the past in Europe and Russia. New York: Cambridge University Press, 2017, p. 1. See also: Stiina Löytömäki, Law and the politics of memory: confronting the past. New York: Routledge, 2014. On French memory laws, there are many other references. See for instance: Bernard Accoyer (ed.), Questions mémorielles: rassembler la nation autour d’une mémoire partagée: rapport de la mission parlementaire d’information, Paris, Assemblée nationale, 2009; Myriam Bienenstock, Devoir de mémoire ? : les lois mémorielles et l’histoire. Paris: Éditions de l’Éclat, 2014; Sarah Gensburger et Sandrine Lefranc, A quoi servent les politiques de mémoire ? Paris, Presses de Sciences Po, 2017. 5 positive role of the French presence overseas”.9 In the midst of many debates about the integration of minorities in a political tradition that tends to ignore them as such, the law demanded the teaching of all the benefits of one century of colonial domination, especially in North and Sub-Saharan Africa. As a consequence, this obviously ideological position should have been taught to students who, for many of them, belonged to families who came precisely from these areas as immigrants, in the 1960’s, after the independences, coping with huge economic, social, and cultural difficulties.
Two months later, in June 2005, a prominent historian of slavery, Olivier Pétré- Grenouilleau, declared in an interview that the above-mentioned 21 May 2001 Act, known as the “Loi Taubira”, was wrong. In defining the transatlantic triangle trade and Slavery as “crimes against humanity”, it did an irrelevant comparison with the Holocaust. Unlike the Nazis, he explained, the slave traders or owners didn’t intend to exterminate those they captured and exploited, but on the contrary to get a benefit from their working force until they died.10 Whether Slavery considered as a genocide is intellectually debatable, the 1945 London agreement defined with no doubt the action to enslave people as a crime against humanity. Then, the only question remained whether one could apply such contemporary criminal categories to remote historical events, what has been at stake with most of memory laws. However, Pétré-Grenouilleau’s statements weren’t contradicted on an intellectual basis. His expertise and his ability to express a free opinion on history were simply denied by French West Indies activists who accused him of being a “racist” and sued him in court, before withdrawing the complaint.11 To contest or to deny a crime against humanity is punishable under the French penal code only under very specific
9 ”Loi du 23 février 2005 portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés”, article 4.
10 Olivier Pétré-Grenouilleau, interview in the Journal du Dimanche, 12 June 2005. He has written many important books, including: From Slave Trade to Empire. Europe and the Colonisation of Black Africa (1780s-1880s). Routledge: London, 2004, first published in France under the title: Les Traites négrières. Essai d’histoire globale, by Pierre Nora, in his prestigious series: ”Bibliothèque des Histoires”, Paris: Gallimard, 2004).
11 See for example: Jean-Baptiste de Montvalon, "Les historiens pris sous le feu des mémoires", Le Monde, 16 December 2005. 6 circumstances, and this has been another major issue of most memory laws. The whole debate deepened the gap between history, memory, and the law, an ongoing controversy for more than a decade.
In June 2005, a group of scholars, mainly from a left-wing background like the historian Gérard Noiriel, denounced the 2005 Act on the “Français rapatriés” as an inappropriate use of history. They created a new organization called the “Comité de vigilance des usages historiques de l’histoire” (CVUH) – recalling the famous “Comité de vigilance des intellectuels antifascistes” founded in 1934 – and triggered a campaign against the text:
“This law is not only worrying because it is underlain by a conservative vision of the colonial past, but also because it conveys the deep contempt of the authorities for the colonized people and for the work of historians. This law also reflects a more general tendency. The increasing intervention of the political power and of the media in historical matters tends to impose value judgments to the detriment of the critical analysis of the phenomena.”12
While defending the historical profession’s autonomy and refusing any “hierarchy of victims” of historical atrocities, the Manifesto focused only on the 2005 Act, without mentioning other similar texts promulgated earlier. As a matter of fact, many of those who denounced here the misuses of the past have accepted – and even praised – in the previous years, several other similar laws, especially the “Loi Taubira”, inspired by a post-colonial perspective. In the meantime, other scholars and intellectuals reacted not to the content of the 2005 text, but to its very principle. Prominent historians like René Rémond and Pierre Nora created the association: “Liberté pour l’Histoire”, and declared in their first appeal:
“In a free State, it is not the role of the Parliament or the Judiciary to define historical truth. State policy, even driven by the best intentions, is not a politics of history. Violating these principles, articles of successive laws, notably the 13 July 1990, the 29 January 2001, the 21 May 2001 and the 23 February 2005 Acts, have restrained
12 ”Manifesto of Committee of Vigilance on the public use of history”, 17 June 2005 < http://cvuh.blogspot.com/2007/02/manifesto-of-comite-de-vigilance-face.html>, seen on 8 June 2018. 7
the freedom of historians, have told them under fear of sanctions what they should research and what they should find, have prescribed methods to them and set limits to their work. We ask for the abrogation of such legislative provisions unworthy of a democratic regime.”13
This appeal denounced a process that most of those who signed it didn’t really pay attention to before 2005. However, gathering different kinds of acts together and asking for their abrogation, it created retrospectively a new category, coined a few weeks later as the “lois mémorielles”.
What’s new in this practice? As many historians pointed out, to legislate on history is hardly a new phenomenon. There are many examples where the narrative of an event has been framed by a political or a juridical norm. To take some cases in French history, the 1598 Edict of Nantes, the famous royal Act which put an end to the religious war between Catholics and Protestants, in order to reconcile the parties, imposed the removal of the whole event from French collective memory: “The recollection of everything done by one party or the other [during the conflict] remains obliterated and forgotten, as if no such things had ever happened”.14 In the 1814 Chart during the Restauration, king Louis XVIII,
13 ”Appel du 12 décembre 2005”, firstly signed by: Jean-Pierre Azéma, Elisabeth Badinter, Jean-Jacques Becker, Françoise Chandernagor, Alain Decaux, Marc Ferro, Jacques Julliard, Jean Leclant, Pierre Milza, Pierre Nora, Mona Ozouf, Jean-Claude Perrot, Antoine Prost, René Rémond, Maurice Vaïsse, Jean-Pierre Vernant, Paul Veyne, Pierre Vidal-Naquet, and Michel Winock). See also: Pierre Nora et Francoise Chandernagor, Liberté pour l’histoire, Paris, Cnrs, 2008. I participated to the debate (cf. Henry Rousso, "Mémoires abusives", Le Monde, 24 December 2005), but I didn’t sign this appeal because I thought abrogating the law against Holocaust deniers would have been a tremendous political mistake when, at the same moment, some countries like Ahmadinejad’s Iran were officially promoting the Holocaust denying as a new form of Antisemitism. I eventually joined Liberté pour l’Histoire, in 2008. Cf. Henry Rousso, « Pourquoi j’adhère à LPH », 25 février 2008, < http://www.lph- asso.fr/index9cd0.html?option=com_content&view=article&id=9%3Ahenry-rousso-l-pourquoi-jadhere-a-lph- r&catid=4%3Atribunes&Itemid=4&lang=fr>.
14 ”La mémoire de toutes choses passées d'une part et d'autre depuis le commencement du mois de mars 1585 [assassinat du Duc de Guise] jusqu'à notre avènement à la couronne, et durant les autres troubles précédents [...], 8 considering that the French Revolution and the Napoleonic episode were mere parentheses in the long history of France’s monarchy, declared: "By thus seeking to renew the chain of time, which fatal errors had interrupted, we removed from our memory, as we would like to be erased from history, all the evils which have afflicted the country during our absence”.15 Later on, in the XIXth and XXth century, after almost any major civil conflict, many collective amnesty laws were passed in order to pardon to specific categories of political crimes, imposing an official oblivion (in particular in the judicial files) on them: after the Commune (1880), after Vichy and the Collaboration (1947-1953), or after the Algerian war (from 1964 on).
These texts had in common not to promote a particular interpretation of the past, nor to impose an official narrative on school curricula, but to express a strong position dictated by the raison d’État: to remove a specific episode of the past from collective memory and to prescribe an official oblivion to make possible social and political reconstruction. Inspired by very old Greek and Christian traditions, they considered that in a post-conflict situation, societies must turn away from the past and look forward to the future. The contemporary memory laws founded their legitimacy on the exact opposite. They resulted from a political and moral perspective which refutes any attempt to defend a suppress from memory of crimes committed in a recent or a remote past. They are based on a “presentist” approach to history that expresses the superiority of the values of our time (i.e. the human rights) over the values of our ancestors. They affirm the ability and the duty for contemporaries not only to fill the black holes of disgraceful historical episodes, but to redress, to repair, to act upon their long-lasting sequels. In this context, a memory law presents as a norm an official historical narrative on a precise episode, with political, social, and financial consequences: it gives a symbolic acknowledgment and usually new rights to demeurera éteinte et assoupie comme de chose non advenue.” The French version is available on many sites. See for example: http://huguenotsweb.free.fr/histoire/edit_nantes.htm, seen on June 11, 2018.
15 "En cherchant ainsi renouer la chaîne des temps, que de funeste écarts avaient interrompus, nous avons effacé de notre souvenir, comme nous voudrions qu'on pu les effacer de l'histoire, tous les maux qui ont affligé la patrie durant notre absence", full text quoted in Sylvie Aprile, La Révolution inachevée 1815-1870. Paris : Belin, 2010, p. 22 (series : Joël Cornette, Jean-Louis Biget, and Henry Rousso (eds), Histoire de France. Paris : Belin, 15 vol., 2010-2012). 9 victims, it may open the possibility to sue before a court those who contest accepted views on the past, it changes the teaching of history in the high schools. As such, the very concept of memory law has been an important step in the recent judicization of the past, which should be analyzed in the framework of new public policies of memory. This process assumed an important place in France as elsewhere in the last three decades: commemorations, historical commissions, trials for remote mass crimes, etc.
Changing the past
The French memory laws include five main texts, from different nature, with different aims, and modified several times in some instances.
1° – Targeting the Holocaust deniers The first memorial law is the well-known “Loi Gayssot”, named from the Communist deputy Jean-Claude Gayssot who initiated it, and passed on 13 July 1990. According to the text, the law will punish “those who will have disputed the existence of one or more crimes against humanity as defined by Article 6 of the Statute of the International Military Tribunal annexed to the London Agreement of 8 August 1945 and which were carried out either by the members of an organization declared criminal pursuant to Article 9 of the aforementioned Statute or by a person convicted of such crimes by a French or an international court.”16 Actually, this text was not a new act as such but a modification of the article 24bis of the law on the Freedom of Press, voted on 29 July 1881, on the eve of the Third Republic, and considered as one of the pillar of the French political system. This law had already been changed in 1972 with elements defining and repressing hatred speeches, and the new “Loi Gayssot” completed it by considering the denial of the Holocaust as a similar felony. This law was passed in a very sensitive context. Many politicians and intellectuals were concerned by the revival of neo-Nazis movements and the scandals caused by Holocaust deniers
16 "Loi du 13 juillet 1990 tendant à réprimer tout acte raciste, antisémite ou xénophobe", Assemblé nationale, 13 July 1990
2° – The Algerian war was a war On 18 October 1999, the National Assembly passed an act modifying the rules about military pensions: “The French Republic recognizes, in conditions of strict equality with combatants of previous conflicts, the services rendered by persons who participated under its authority in the war in Algeria or in the battles in Tunisia and Morocco between January 1st 1952 and July 2nd 1962.” It gives them the status of veterans and added that in all official texts the words "operations done in North Africa" shall be replaced by the words "the Algerian war” or “the fights in Tunisia and Morocco”.18 This first real French memory law resulted from a long held claim. It legalized the usual way anyone in France was speaking about the war of decolonization in Algeria
17 Cf. Henry Rousso, Le dossier Lyon III: le rapport sur le racisme et le négationnisme à l'Université Jean-Moulin. Paris: Fayard, 2004.
18 ”Loi relative à la substitution, à l'expression ‘aux opé rations effectué es en Afrique du Nord’, de l'expression ‘à la guerre d'Algé rie ou aux combats en Tunisie et au Maroc’”, Assemblée nationale, 18 October 1999
3° – The genocide of the Armenians was a genocide The 29 January 2001, the French parliament passed another memory law with a single and very brief article: “France publicly acknowledges the Armenian genocide of 1915”.19 It was belatedly following an example given by the European Parliament, which adopted on 18 June 1987, a resolution on a political solution to the Armenian question and put pressure on the Turkish Government in order to recognize the genocide committed in 1915–1917, which Turkey
19 ”Loi relative à la reconnaissance du gé nocide armé nien de 1915”, Assemblée nationale, 29 January 2001 < https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000403928>
12 never accepted. It is interesting to note that, for the first time, a law providing a historical narrative didn’t directly concern French history. Like the Holocaust, remembering the Armenian genocide became at the end of the XXth century an important element of the European legacy and of its common values. However, there was here another argument. France had – and still has – the largest Armenian community in Europe (half of a million people), as well as the largest Jewish community (around 700 000) and the largest Muslim community (around 5 millions). The politics of memory is a politics of identity, and in France where minorities had difficulties getting wider attention, memory laws were a tool to provide symbolic gestures on their direction. Nevertheless, the law on the Armenian genocide raised many difficulties later on. First, as opposed the two other previous texts, it didn’t have any concrete effect. It didn’t prevent any prejudice or hate speech – will the Turkish Ambassador in France ever be sued? –, and it didn’t provide any new rights. It was denounced by many lawyers as a “declarative law”, an official and very general statement made by the Parliament, which isn’t one of its prerogatives. Second, could a Parliament decide on its own that a specific crime can be legally defined as a “genocide” while no tribunal ever charged any defendant for this kind of a crime because of the non-retroactivity of the 1948 Convention? The question is a general one, including at the European level, but it took on a particular importance in France in the subsequent years.
4° – The Western Slavery A few months later, on 21 May 2001, the parliament passed what is probably the most important memory law, the “Loi Taubira”, named from the French Guyanese deputy Christiane Taubira, close to the Socialist party. It addressed many issues in the same text, all related to Slavery. The first article gave a historical and legal definition of the process itself: “The French Republic acknowledges that the transatlantic slave trade, trafficking in the Indian Ocean on the one hand, and Slavery on the other, perpetrated from the 15th century onwards in the Americas and the Caribbean in the Indian Ocean and in Europe against the African, Amerindian, Malagasy and Indian populations constitute a crime against humanity.” The second one recommended that “school and research programs in history and human sciences will give the slave trade and Slavery the consequent place they deserve”. This was the first time that a memory law tackled the very sensitive issue of how to teach history at school. If the curricula in France are established by the ministry of 13
Education, they usually respect the autonomy of the teachers and the principle of a strict State neutrality. The law didn’t go further than just a recommendation, but it opened the door to other similar initiatives. Articles 3 and 4 recommended to change the 1983 law commemorating Slavery’s abolition – what will be done five years later, in 2006, when the Parliament will create on the 10th of May (the anniversary of the 2001 debate), a new National Day remembering “the slave trade, Slavery and its abolitions”, meaning not only the good deed but the crime as well.20 The first draft of this text also included an article making it an offence to deny or trivialize these newly defined crimes against humanity, but it was eventually withdrawn. When the law was passed, it didn’t attract much attention. The real debate began in 2005, during the controversy on memory laws. The “Loi Taubira” was one of the more frequently attacked, mainly for its first article. Many criticized its definition of such a complex phenomenon, which fulfils a political goal with little respect for historical realities. The Atlantic trade began at the eve of the XVIth century, especially between Portugal and Brazil, and not during the XVth century, when the slave trade was between Africa and Europe. In the text, nothing is said about the African protagonists of the process, who captured most of the Slaves before selling them to the Portuguese, the Spanish, or the French merchants. Nor there is any mention of Slavery as a phenomenon practiced by other civilizations before, at the same time, or even today, for instance the Arab Empire or contemporary enslavement practices in some Asian or African areas. The law targeted only the acts perpetrated by the Western colonial Empires. When Christiane Taubira was asked by a journalist, in 2006, why some other examples of Slavery were absent of the definition, she replied bluntly that the Arab-Muslim slave trade should not be discussed too much so that the “young [French] Arabs "do not bear on their backs all the weight of the legacy of the
20 ”Loi tendant à la reconnaissance de la traite et de l'esclavage en tant que crime contre l'humanité ”, Assemblée nationale, 21 May 2001
5° Colonialism, the good old days If we leave out the 1990 law on Holocaust deniers, the three others voted between 1999 and 2001 had much in common. They present a set of “liberal” texts, defending values like transparency, or accountability, aiming to redress the mistakes or wrongdoings made on behalf of the State. All of them deals with identity politics as well. They benefited from a specific political context, when the Gaullist President Chirac nominated the Socialist Lionel Jospin as Prime minister, during a period of “cohabitation”, a kind of bi-partisan governance between 1997, when president Jacques Chirac, elected in 1995, lost the majority at the Parliament, and 2002, when Chirac began a second presidential term. The center-right and the left agreed on many issues related to coping with the past, and Jacques Chirac has even been considered as the “president of the duty to remember”.22 Meanwhile, when the right regained the full exercise of power after the threat caused by the presence of Jean-Marie Le Pen, the leader of the extreme right, in the second round of the April 2002 presidential election, the most conservative part of the new majority decided to react. After all, the right or the extreme-right have their own historical victims as well. This is the reason of the above-mentioned law passed on 24 February 2005, giving the gratitude of the Nation to the ‘Français rapatriés’. Similar in its structure to the “Loi Taubira”, it came up with the opposite agenda. In the first article, it is written that “the Nation expresses its gratitude to the women and men who participated in the achievement accomplished by France in the former French départements in Algeria, and in Morocco, Tunisia and Indochina as well as in the territories formerly under French sovereignty. It acknowledges the sufferings and sacrifices endured by the rapatriés, the former members
21 ”Christiane Taubira déclare sans ambages qu'il ne faut pas trop évoquer la traite négrière arabo-musulmane pour que les «jeunes Arabes» «ne portent pas sur leur dos tout le poids de l'héritage des méfaits des Arabes”, interview with Éric Conan, L’Express, 4 May 2006.
22 Béatrice Gurrey, ”Le président du devoir de mémoire”, Le Monde, 13 March 2007, special issue on Jacques Chirac at the end of his second term. 15 of the auxiliary forces, the missing, and the civilian and military victims of the events linked to the independence process of these former départements and territories, and pays a solemn tribute to them and their families.” The list included all kind of European victims of decolonization, both civilians and soldiers, as well as North African veterans who fought on the French side, either in the Army or in auxiliary forces, and known under the generic name of “Harkis”. The last were considered as “collaborators” by the Algerian Independentists, and many of them were massacred in summer 1962. This article was not particularly controversial, and appeared as a way to balance competitive French memories. After all, the Algerian war deeply divided French society. Unlike what happened after Vichy France, most of the “losers”, either the million of European refugees or the French drafted veterans, were considered as victims. As I already mentioned before, article 4 triggered the controversy about memory laws as such, by trying to impose a pedagogical neo-colonial narrative: ‘Academic research programs give to the history of the French presence overseas, particularly in North Africa, the place it deserves. The school curricula recognize the positive role of the French presence overseas, particularly in North Africa, and give the history and sacrifices of the French army combatants from these territories the outstanding place they are entitled to.’ This article was a strong reaction to policies of “negative memory”, meaning policies of redress, denounced as an “ideology of repentance” by many right-wing leaders, including future French president Nicolas Sarkozy. Eventually, this article was abrogated in February 2006, but the rest of the text remained.
The duty to remember vs the State of Law
In the 2000’s, memory laws became part of European policies. Between 2001 and 2007, the European Union’s ministries of Justice tried to find an agreement to fight against hate speech and various forms of historical revisionism. Following a proposal made the 20 April 2007, the European Council finally took on 28 November 2008, a Framework Decision to combat expressions of racism and xenophobia by means of criminal law, including “publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes as 16 defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) and crimes defined in Article 6 of the Charter of the International Military Tribunal, when the conduct is carried out in a manner likely to incite violence or hatred against such a group or member of such a group.”23 The initiative triggered a new controversy in France. Pierre Nora and “Liberté pour l’histoire” launched a new appeal, “L’Appel de Blois”, in October 2007, recalling that "in a free state, it doesn’t belong to any political authority to define historical truth".24 A few months later, the National Assembly created a special commission to investigate the need and the legitimacy of memory laws. The almost 500 pages report was released the 18 November 2008, a few days before the European Framework Decision. If it is probably the most complete account on the topic, and despite some recommendations to promote a “shared memory” (“une mémoire partagée”) or asking to the Parliament to avoid legislating on history, the report didn’t lead to any concrete decision, and moreover couldn’t stop the process that tried adapting the European Framework Decision in French law.25 In October 2011, the Parliament had to examine a bill reformulating the “Loi Gayssot” in order to punish those who contest the existence of any crime against humanity – and not only the Holocaust – recognized by international or French texts. 26 At stake was the possibility to punish all those who contested the genocidal nature of the massacres of the Armenians. To bypass the fact that these crimes were never judicially qualified as a genocide, the bill referred to the 2001 Act, which proclaimed the acknowledgement of the Armenian genocide as a legal statement. Meanwhile, in February 2012, the Constitutional Council, the highest French court, rejected it, arguing that the Parliament was not competent to apply a criminal qualification – the crime of
23 “Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law”, 2008/913/JHA, 28 November 2008
24 ”Appel de Blois”, during the "Rendez-vous de Blois", the unofficial congress of French historians,11 October 2008.
25 Bernard Accoyer (ed.), Questions mémorielles, op. cit.
26 ”Proposition de loi portant transposition du droit communautaire européen sur la lutte contre le racisme et réprimant la contestation de l'existence du génocide arménien”, 18 October 2011
27 ”Dé cision du Conseil Constitutionnel, 28 fé vrier 2012”
28 Robert Badinter, “Génocide arménien: la pitié dangereuse”, Le Monde, 25 January 2012. 18 court”.29 As a paradoxical consequence, the French law forbids today the denial or gross trivialization of the genocide of the Tutsi in Rwanda, judged as such in many national and international courts (including in France), but doesn't allow the possibility to sue those who deny the Armenian genocide, which was never taken into account by the IPC or any other international or French court: this is one of the very reasons for recognizing the genocidal nature of this massacre by many national parliaments, including the French one!
Norms for what?
At a global level, laws dealing with historical issues have been generally implemented in two kind of situations. They can be part of a process of transition, of coming to terms with many important and urgent issues: establishing the truth about mass crimes, creating institutions to collect archives and testimonies, or installing various sorts of truth and reconciliation commissions. There are of course plenty of examples in recent history, like the 2011 Decree creating the National Center for Historical Memory in Columbia, whose purpose goes far beyond an administrative decision and is part of a larger reconciliation process, or even the famous 2007 Spanish Historical Memory Law, a belated text, a consequence of a long and difficult democratic transition after Franco's death, in 1975. In these situations, the notion of memory refers to what will be said in the future about the historical events the text is dealing with. This justifies the use of a law-making process to impose a strict norm – forgetting, reconciliation or justice – reflecting a raison d'État, to protagonists who may be rather reluctant to follow such a path. Laws voted decades after the event, sometimes centuries like texts on Slavery, whose purpose is to pay a tribute to real or alleged forgotten victims in order to sustain a policy of identity for the descendants, or to promote an official historical narrative, are of a very different nature. Here, the concept of memory means to redress a situation where the crimes or the wrongdoings committed in a belated past, especially by the State, have been underestimated or ignored during the
29 Modification of Article 24bis of the 1881 Law on the Freedom of Press, 27 January 2017
In the early 2000's, most of memory laws were voted in the context of a crisis of the Republican model. The French melting pot encountered difficulties in integrating new generations of immigrants, especially those who came from the former colonies. Then, memory laws were a kind of a symbolic reparation, integrating into the national narrative the fate of these minorities. That is why most of French memory laws have been passed while, at the same time, France launched various policies of memory and acknowledgment covering a large part of its own history. For example, of the 15 National Days ("Journées nationales"), not including international commemorations, the first was initiated in 1880 (July 14 Bastille Day), two were created before WWII (Joan of Arc's feast and the armistice of November 11), two between 1946 and 1985 (May 8 Victory Day, Deportation Day, and Europe's Day), and ten since 1993, during the memory boom, beginning with the commemoration of Vichy's antisemitic crimes. This last one was the first French negative commemoration, and it was followed by many new commemorations on the Holocaust, the Algerian and Indochina wars, Colonialism, and new commemorations of the Resistance.30
30 See the official site of the Ministry of Defense
It is understandable that specific laws were necessary to create new rights or to give new status to people, or to punish new kind of felonies, like the denying of major mass crimes, keeping in mind that these texts also led to unsolved legal knots. They dealt with real issues, rooted in the present, and addressed issues for living individuals: pensions for the Algerian war's veterans still alive, or minorities libeled by the denial of their own or parent's suffering. But what about legislating on remote events? Slavery in history has been without a doubt a crime against humanity in the common sense, but the need for such a contemporary judicial definition when there is nobody to punish, nor any reparation to claim, remains in question. Law is politics, memory laws are memory politics, and politics depends on a balance of powers. Nowadays, in many European countries under the rule of illiberal governments, for instance in Poland or in Hungary, memory laws are used not to redress the past in a progressive way but to revise it, and to promote the official denial of historical facts, i.e. indigenous complicities in the Holocaust. The road to hell is often paved with good intentions.