In May 2009, on the sixty-fourth anniversary of the Soviet victory in World War II, ‘United Russia’ delegates tabled a draft ‘memory law’ in the Duma.

They sought to make it a culpable offence to ‘violate the historical memory of events which took place during the Second World War’. The government considered the draft to be half-baked: just what kind of statements about the past should people be sent to prison for? The delegates have done further work on the law and have once again presented it to Parliament. But they have yet again failed to find an appropriate way of formulating it. Instead, they have hidden behind the verdict of the Nuremberg Tribunal. But they have apparently not taken the time to look at that properly, either.

What they are proposing is that it should become illegal to deny facts established by the Tribunal. But the text of the verdict is neither readily accessible nor easy to interpret. Not a single accusation which has been levelled at Russia in relation to its role in the war can be challenged by reference to the verdict of the Nuremberg Tribunal. Moreover, several judgements in the verdict were long ago re-assessed by the Russian leadership. So, it remains unclear what ‘violations of historical memory’ could be made to stick. The law might open the gates to a legal free for all. Besides, any legislative control of ‘historical memory’ is misconceived.

The campaign begins

The idea of passing a ‘memory law’, as laws controlling historical memory are called, has been under discussion for several years, usually by people of a nationalist persuasion. They maintain that a propaganda war is being waged against Russia, aimed at ‘blackening our history’, especially the role of the Soviet Union in the Second World War.

The supporters of such a law are particularly outraged by three accusations levelled at the USSR:

-       its complicity in initiating the war

-       the plunder and violence carried out by the Red Army in the liberated territories

-       its seizure of independent states with subsequent installation of puppet (or occupation) ‘popular democratic’ régimes.

In their view attempts to “falsify history to the detriment of Russia” can best be answered by a Russian ‘memory law’.

The first version appeared on the eve of the sixty-fourth anniversary of the victory. It was immediately overshadowed by the presidential decree that created a commission to address the falsifications of history. This provoked considerable levels of criticism, because only three of the twenty-eight members were historians. But the difference between creating a commission and passing a law is clear: the powers of a commission are limited to making suggestions to the President, while a law empowers all judges to condemn anyone ‘traducing the past’.

Although surveys have suggested that 60% of people supported the idea of a law on the falsification of history, it was met with a barrage of criticism.  Historians were divided. While some supported the initiative, others expressed the hope that the archives would now be opened. But many saw the decree and the law as infringing the freedom of scientific research. There was a sense that this was all rather predictable in the context of the anniversary. 

As for the President’s commission, it held only two meetings (in August and January) and supported the publication of several leaflets. For a long time the idea lay dormant. But now the Duma have returned to it.

The long and the short drafts

The original version of the law was published on the website of the information agency ‘Regnum’ on 20 April 2009. The long document envisaged a comprehensive law on the ‘politics of memory’ under the aegis of a specially created Public Tribunal. A third of its members would be appointed by the President, a third by the Duma and a third by the Public Chamber. It envisaged amendments to the Criminal Code and the introduction of punishments for rehabilitating Nazism and ‘distorting’ the verdict of the Nuremberg Tribunal.

Critics quickly pointed out inconsistencies.  The proposal was that the law should operate within the borders of the former USSR as defined on 22 June 1941.  These borders were established by the treaty with Fascist Germany, but declared illegitimate by the USSR itself when the anti-Hitler coalition was being set up in July 1941.

It is hardly surprising that this draft did not reach the Duma. A year later, the idea of passing such a comprehensive law on historical memory appears to have been buried - probably because of the difficulties of enforcement, of which more later. However, both components of the proposed plan have been realised, albeit in amended form.    On 15 May the President set up a commission accountable exclusively to him, rather than a Public Tribunal. On 6 May the following amendment to the Criminal Code was officially tabled in the Duma by a group of delegates headed by Boris Gryzlov:

‘Distortion of the Verdict of the Nuremberg Tribunal, or of the verdicts of national courts or tribunals based on the Verdict 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 of up to 300,000 roubles, or up to three years imprisonment.’

The same ‘acts’ by persons in official positions or through the mass media, would, it was proposed, be punishable by a fine of up to 500,000 roubles or imprisonment for up to five years. [1]

Public protests

The bill was received positively by the Supreme Court and included in the Duma schedule. But the matter dragged on.  The wave of protest that followed was by current standards considerable.  Several collective appeals against the commission and the law were published.  The protests were international – not only from the ‘near abroad’, where the history wars are being waged, but also from the countries of former allies in the anti-Hitler coalition, on whose understanding the legislators had felt they might count. In the West the protests came above all from historians: they usually do protest against ‘memory laws’, since they know all too well how difficult it is to evaluate the past.

The issue of ‘memory laws’ has acquired particular resonance in France for various reasons.  In 2005 an association called ‘Liberté pour l’Histoire’ was set up, with a membership of some thousand leading historians.  Its President, the Academician Pierre Nora, publicly declared the Association’s solidarity with the Russian historians. A very important national organisation of historians - the American Historical Association - sent an open letter to President Medvedev. Soon afterwards the American Association for the Advancement of Slavic Studies officially gave its support to the letter. It read:

‘The American Historical Association believes that it can never be in the public interest to forbid the study of, or publications about, any historical topic or to forbid the publication of particular historical theses. Any limitation on freedom of research or expression, however well intentioned, violates a fundamental principle of scholarship: that the researcher must be able to investigate any aspect of the past and to report without fear what the evidence reveals.’

The letter emphasises that the Association takes the same position regarding any memory laws in any country:

‘It may interest you to know that the sentiments expressed above are the same that informed the American Historical Association’s response to the European Union’s framework decision seeking to make Holocaust denial a crime. As much as we reject the work of Holocaust deniers, we still believe, even in this extreme case, that it should be left to open scholarly debate and judgement to determine the reality of the past and the veracity of the various accounts of it.’ [2]

The government’s conclusion

The historians were not the only ones who opposed the memory law. It appears that there was some resistance to it even in the establishment. For the project had been extremely badly prepared. Though the government supported the idea in principle, in practice, it acknowledged that the text was unusable:

‘The bill is problematic because it contains statements such as  “the declaration that actions of countries which were participants in the anti-Hitler coalition were criminal”: it is not clear what range of actions or period of time that declaration covers and what is meant by the term declaration (…))

‘The authors refer to “distorting the verdict of the Nuremberg Tribunal”. This is legally inaccurate: it is unclear from the text of the bill how the verdict handed down by the Nuremberg Tribunal and enshrined in law could be distorted.’

Indeed, actions carried out by the countries of the anti-Hitler coalition included not only the Stalinist repressions, but also allied air forces’ barbaric bombing raids on German cities, not to mention the atomic bombs dropped on Hiroshima and Nagasaki. The authors of the bill hardly intended to imprison those who condemn these actions. They just didn’t think. Thankfully the government rectified this and the Duma Legislation Committee proposed that those who had conceived this law should complete their work on it. [3]

Bureaucratic ‘artistry’

The new version was declared ready on 30 March and submitted to the Duma on 16 April.  Government comments had been formally taken into consideration, but this had not greatly improved it:

‘Approval or denial of Nazi crimes against peace and the security of humanity as established by the Verdict of the Nuremberg Tribunal shall be punishable by a fine of up to 300,000 roubles or up to three years imprisonment.’

Those drafting it had heeded Napoleon’s exhortation to the creators of his constitution to ‘Write it in such a way that it is brief and obscure’. The description of the crimes whose denial merits a prison sentence is terse indeed. Hiding behind the backs of the Nuremberg judges, the drafters had laid responsibility entirely on them.

At first glance, this is achieved with great artistry. The Tribunal was authoritative and international and the crimes under consideration were Nazi crimes. How could such a law not be passed? But this bureaucratic artistry, like any transfer of responsibility, only conceals the real problems.

So what did the Nuremberg Tribunal establish?

Clarifying exactly what the Nuremberg Tribunal did establish is not so easy, and this has a direct bearing on whether or not the law can be passed. For a start, not every library has the edition of the Nuremberg trial files. It was published in 1954 and runs to many volumes. The shortened version of the Tribunal Statute can be found on the internet, but not the verdict. I found it on the site of the Yale Law School (USA). It is, of course, in English [4].  A Russian version could be made available, but it is about fifty pages long. Not everyone will read it. Needless to say, ignorance of the law is no excuse, but does this rule extend to court verdicts, even very authoritative ones? Does a citizen of the Russian Federation have the right not to know precisely which Nazi crimes were ‘established by the Nuremberg Tribunal’? And if s/he does have that right, can s/he be condemned for denying crimes about whose ‘establishedness’ he or she is not obliged to know?

After familiarising myself with this extensive document, which I had previously known only from extracts, my own conclusion was that the authors of the bill had not consulted it. If they had, they would have realised that Major-General Justice Nikitchenko, the Soviet representative at Nuremberg (a participant in the show trials of the 1930s, who had sentenced Zinoviev and Kamenev to the firing squad), was not the answer to their problems.

In the verdict, many Nazi crimes are for understandable reasons set out quite summarily:

‘An enormous amount of detailed proof of war crimes was laid before the court. It is not possible to examine it properly in this verdict, so the Tribunal will dwell on it in the most general terms. Prisoners of war were subjected to cruel treatment, tortured and killed...’

The most important crimes are included in the indictment, but only an insignificant number are listed in the verdict. Should the other charges be regarded as unproven? Of course not, as is made clear by the quotation above. But can we say that all the crimes enumerated in the indictment and not mentioned in the verdict have been established? We don’t know. Who should decide, how and on what basis, whether one or other specific episode has been proved?

So what about Katyn?

Here, for example, is one of the charges from the section of the verdict ‘VIII C. Murders and cruel treatment of prisoners of war’:

‘In September 1941 11,000 Polish officers, prisoners of war, were killed in the Forest of Katyn near Smolensk.’ [5]

Does this mean that the Nuremberg Tribunal ruled that Katyn was a Nazi crime? If so, and if the law goes through, then people in official positions who publicly admit that the mass executions at Katyn were the work of the NKVD risk up to five years in prison.

What happened at Nuremberg was that the Soviet prosecutor Colonel Pokrovskii made great efforts to include the Katyn executions in the indictment:  they were, after all, widely known about even during the war.  At the time the Nazis and the Communists were accusing each other of the crime and each side carried out its own examination of exhumed remains. The allied prosecutors at first agreed with Pokrovskii, as they considered that ‘any other position would impact negatively on public opinion, because it would show that we had been allies of a state guilty of the same kind of outrages as Germany’ (as one of the English representatives at the trial reported to London).

During the investigation, the prosecution and the defence each called three witnesses.  No contradictions could be proved in the evidence of the defence witnesses. The prosecution witnesses were far from convincing.  They included the Bulgarian Professor Markov, who had taken part in the Nazi investigation of the executions and who was arrested by the pro-Soviet Bulgarian government as an enemy of the people after the war. The judges could not agree. The lawyers demanded that fresh witnesses be called. At that point Colonel Pokrovskii threatened to call so many prosecution witnesses that the trial would be paralysed. In the summary the court preferred ‘in the interests of clarity’ to hush up the problem of Katyn.

Does the project envisage a punishment for Holocaust denial?

It is not completely clear whether the proposed law would cover the denial of crimes like Katyn.  It stipulates punishment for the ‘approval or denial of Nazi crimes established by the Verdict of the Nuremberg Tribunal against peace and the security of humanity’.  Denial of other Nazi crimes is not forbidden. Nonetheless, the authors of the law failed to look at the case files. If they had, they would have kept to the concepts used at Nuremberg, rather than inventing new ones. The scrupulously elaborated classification of Nazi crimes and the clear definition of each category are an important contribution of the Nuremberg Tribunal to the development of international law. Three types of crime are identified in the statutes of the Tribunal, in the prosecution’s conclusion and in the verdict:

a) ‘crimes against peace’ (preparation for, and declaration of, aggressive war)

b) ‘war crimes’ (‘infringements of the laws or customs of war’, including ‘the murder, torture, and enslavement of civilians in occupied territory; the murder or torture of prisoners of war’ etc.)

c) ‘crimes against humanity’ (‘persecution for political, racial, or religious reasons’, and the like)

Why not use this classification?  Is it so old-fashioned? And how can one refer to the document of entitlement, changing its terminology but not specifying how the new concepts relate to the old ones?

The Nuremberg Tribunal certainly knew about crimes against peace; it also knew about crimes against humanity; but it didn’t know about crimes against the security of humanity and, consequently, couldn’t establish them.

What are crimes against the security of humanity? Are they crimes against humanity or crimes against peace? If the latter, then Holocaust denial cannot be punishable under the new law, which does not stipulate punishment for denying crimes against humanity. Who will decide what our legislators had in mind? In any event, one will be able to deny as emphatically as one likes both the execution of Soviet prisoners of war and the deportation of civilians for enslavement in Germany: after all, the denial of war crimes established by the Tribunal is certainly not provided for in the law. I don’t think the authors of the bill decided on this formulation for any reason. They were simply trying their best.

It may not seem possible, but in its review of the first version of the bill, posted on their site on 18 May 2009, the Duma’s legal department wrote:

‘The list of crimes, whose approval or denial must entail criminal liability, needs to be made more precise…..bearing in mind that the Statute, the indictment and the verdict of the International War Tribunal contain a clear classification of crimes, for which war criminals were held to account.  These were crimes against peace, war crimes and crimes against humanity...’

It would appear that the legislators hadn’t even read the recommendations of their own lawyers. With a tenacity that should have been put to better use, they reproduce in the new version the defects that experts had identified in the preceding version.

But if the authors of the bill didn’t actually manage to formulate what precisely ‘falsifiers of history’ should be punished for, how can one expect an ordinary Russian judge to cope? Even if he’s given seven volumes of case files.

War justice versus customary legal proceedings

Irrespective how precise the language of the bill is, it is not going to be easy to decide what exactly the Nuremberg Tribunal verdict did establish. Particularly in view of the following excerpt taken from its governing document:

‘Article 19. The Tribunal shall not be bound by formality in the use of evidence. It establishes and applies the most rapid and formally uncomplicated procedure possible and admits any evidence which, in its opinion, has evidentiary force.’

This is understandable.  The Tribunal was both a military and an extraordinary Tribunal, and the scale and monstrosity of the Nazi crimes were such that a certain vagueness of detail would hardly affect the overall evaluation.  But in the present situation we are dealing with ordinary courts and ‘acts’ of an incomparable degree of gravity.

Deciding what exactly was established by the Tribunal and to what extent the evidence laid before it was convincing at the time and remains so today requires detailed study. ‘A procedure uncomplicated by formalities’ will not do.

Let me be clear: I have no doubt that the Nazi war criminals received their just deserts at Nuremberg. The trials were the start of a new stage in the development of international law. Many of the norms underpinning the present system of international security had developed gradually over the preceding years. But it was in the course of the trials that they were drawn together into a single system. Bearing in mind the history, including the strained relations between the victorious powers, the Nuremberg Tribunal and its work were a reasonable way of articulating international condemnation of Nazism. Democracy and communism had joined forces to defeat fascism, though this rather complicated subsequent attempts to condemn communism.

The authors of the bill climb down

The authors’ main aim is to prevent Russia being held responsible for starting the war, war crimes and setting up governments of occupation. But the new version of the law cannot address either the second or the third problem, because the Nuremberg Tribunal ‘established’ nothing in that regard. It did not examine the actions of the Red Army and, consequently, could neither condemn nor justify them. And the ‘socialist revolutions’ in Eastern Europe all happened after the Tribunal had completed its work.

The first version of the law stipulated punishment for ‘declaring that certain activities of countries participating in the anti-Hitler coalition had been criminal’.  This could be interpreted as including the war crimes laid at the door of the Red Army and its conquest of Eastern Europe. But the legislators ‘found no words’ to retain this in the new draft. They have obviously climbed down.  ‘Traducers’ can brand the liberating army as an occupying force to their heart's content with no fear of being put in jail. The legislators are now trying to defend a minimum position:  justifying the Soviet Union in respect of starting the war.  Of what possible use is the Nuremberg Verdict here?

The Nuremberg Tribunal on the subject of Munich

At first sight, a great deal. The politics of fascism are treated in the Verdict as a ‘plot’ to make preparations for war and then unleash it.  The responsibility for this is laid fairly and squarely on Germany.  But even in the works of the most determined falsifiers, there is little doubt that Hitler’s regime was essentially aggressive. Recognition that Germany was the aggressor still leaves open the question as to whether the politics of other countries really were aimed at preserving the peace. In this respect the text of the Verdict lays itself open to questions. The Munich Pact, for instance, is presented as follows:

‘The Munich Pact was signed on 29 September, after negotiations between Hitler and Mussolini on the one hand, and the British and French Prime Ministers on the other. Under its terms Czechoslovakia was compelled to acknowledge the transfer of the Sudetenland to Germany. The “piece of paper” brought to London by the British Prime Minister, signed by him and Hitler, expressed the hope that in future Great Britain and Germany might live without war. That Hitler never intended to support the Munich Agreement is confirmed by the fact...’

Great Britain and France are depicted as peacemakers who were deceived. The Soviet-German Non-Aggression Pact is presented similarly in the verdict: it is mentioned in connection with the substantive charge against Germany of violating international agreements.

Soviet historians denied this interpretation of the Munich Pact. It is still denied in Russia by official figures and at a high level, in particular Foreign Minister Sergei Lavrov.  If the law is passed, he might expect some problems if he continues to express himself in the spirit of his recent article on the 65th Anniversary of Victory:

‘The high point of historical revisionism is the attempt to equate 23 August 1939 with 1 September i.e. the conclusion of the Soviet-German Non-Aggression Pact and the German invasion of Poland. These two events are taken entirely out of the general historical context, leaving aside:

• the Munich Pact of 1938, which led to the dismemberment and occupation of Czechoslovakia;
• the Anglo-German Declaration (that very ‘piece of paper’ N.K.), which was signed at the same time and was essentially a non-aggression pact between Great Britain and Hitler’s Germany;
• a whole series of other events, preparing the German attack and directing that attack towards the East.

Without Munich, there would have been little else of what followed.’

Lavrov is doubtless right: out of weakness and a desire to knock the two dictators’ heads together, Great Britain and France did not adopt a position of principle in Munich.   But what point is the Minister making, if not the official Russian review of some of the judgements recorded in the Nuremberg Verdict? Is he not calling for the continuation of that review, when he writes:

‘In its time the Russian Parliament acknowledged the mistake committed by the Soviet Union when it condemned the Ribbentrop-Molotov Pact. We are entitled to expect this from other countries which did a deal with the Nazis and it should not be just words from political leaders, but political decisions. Soviet Russia was fallible, but so was the West.’ [6]

In order to help their own Parliament out of this situation, the drafters might try something along the lines of: ‘Revision of Nuremberg Tribunal judgements is prohibited, other than those which have already been reviewed by the Russian leadership ’. True, this would mean that the legislators would take upon themselves responsibility for establishing historical truth, which is just what they are making strenuous efforts to avoid. Others might ask: if you can review things, then why can’t we? There is no easy way forward.

It’s a statement of the obvious that the Nuremberg Tribunal wasn’t always able to speak the truth. The victorious countries didn’t set it up so that it could express public repentance. Acknowledging this is not rehabilitating Nazism. Enough has been written to ensure that there is no question of that. But is this really a reason for idealising the politics of other countries and absolving them of all responsibility for the fatal miscalculations and self-centred calculations which contributed to the imminent catastrophe?

We need to be careful here too.  In my opinion it is quite reasonable to consider that many countries should accept partial responsibility for initiating the war, but this often leads to the conclusion that they are all (except, of course, Germany) equally ‘tainted’. So no one is pure as driven snow and entitled to make moral judgements. For example, Poland too ‘seized’ a part of the Sudetenland from Czechoslovakia, so can have little justification for outrage that the USSR subsequently came to an arrangement with Germany over the division of Poland itself. This is one of the manifestations of the relativism defining the moral climate in Russia, when we conclude that because there’s no such thing as perfection, there’s no distinction between varying degrees of evil.

The political régime of ‘Pańska Polska’ on the eve of war evokes little sympathy in the modern democratically-minded historian. But not everything is equal and there were worse régimes. Poland did not carry out mass repressions in Sudetenland on a scale comparable to the USSR and Germany’s.  The seizure of lands by force and national oppression are terrible and unacceptable.  The seizure of lands by force followed by mass repression and the establishment of totalitarian regimes is even worse.  This is what outraged international public opinion and provided the impetus to set up an international tribunal to condemn these crimes and prevent them being repeated.

The Nuremberg Tribunal on the Ribbentrop-Molotov Pact

German fascism was condemned in Nuremberg in particular for violating the Ribbentrop-Molotov Pact, initiating aggression and unleashing war against the USSR. According to the document, the USSR had intended to observe the pact:

‘On 23rd August 1939 Germany signed a non-aggression pact with the Union of Soviet Socialist Republics.

‘The facts clearly state that the Soviet Union for its part observed the conditions of this pact and the German government itself had even received assurances of this from its highly placed sources of information. The German ambassador in Moscow communicated to his government that the Soviet Union would enter the war only in the event of an attack by Germany.  

‘But in spite of the non-aggression pact, in the summer of 1940 Germany started preparations for an attack on the USSR.’

For the historian the reference in the verdict to the 6 June 1941 report from the German ambassador in Moscow Count von der Schulenburg is less than convincing. The count (executed in 1944 for his part in the plot against Hitler) was opposed to the war with the USSR and was trying to assure his government of Stalin’s peaceful intentions, not that this proves those intentions existed.

The Verdict indirectly absolves the USSR from the charge that the Ribbentrop-Molotov Pact untied Hitler’s hands for an attack on Poland:

‘The final decision on the date of the attack on Poland, which was planned and agreed earlier that year, was taken by Hitler shortly before 22 August 1939.’

This means that the decision was taken before 23 August i.e. before the pact was signed. So it was not the pact that led to war. But there is an ambiguity here. What happened on 22 August? The Verdict mentions a speech Hitler gave to a narrow circle of associates. But Hitler knew that the decision about the pact had already been taken and that Ribbentrop was flying to Moscow. So the phrase ‘shortly before 22 August’ could be taken to mean that the attack against Poland, planned and prepared in advance, was set in motion as a result of the deal done in Moscow.

The Nuremberg Tribunal said not a word about the secret protocol attached to the pact.   This served as the basis for the division of Eastern Europe between Stalin and Hitler. The reason remains the same: before the beginning of the Cold War the allies were afraid to admit to their peoples that their struggle against fascism had been conducted in alliance with a régime which in many respects was not very different from it. But can it be said the Nuremberg Tribunal established that the secret protocol played no part in initiating the war? In that case what about the official condemnation of the secret protocol in Russia referred to by Lavrov?

The Nuremberg Tribunal on 22 June

To continue with our analysis of the Verdict:  ‘On 22 June 1941, without a declaration of war, Germany invaded Soviet territory in accordance with plans made earlier. The defence asserted that the attack on the USSR was justified because the Soviet Union was making preparations to attack Germany. It is impossible to believe that this view was ever honestly entertained.’

As we see, the falsifiers’/ revisionists’ version of the history of the war in the account of the German war criminals did not find favour with the judges.  But here too the Tribunal retained a certain ambiguity. Of course, it was impossible to hush up an ‘episode’ on this scale, particularly because the accused held stubbornly to their version. The version, incidentally, reproduced Germany’s position as formulated in the declaration of war which Schulenburg handed to Molotov on the morning of 22 June. The only argument against this version quoted in the Verdict is Schulenburg’s already mentioned report. But that’s in another section of the document. It too is ambiguous - not because it doesn’t prove Moscow’s peaceful intentions, but because it shows Germany’s concern that Stalin might attack. On the basis of Article 21 of its Statute, the Tribunal could refer to the German aggression as a well-known fact without adducing evidence. But the judges chose quite a strange formula for a verdict: ‘impossible to believe’. Why? 

What exactly did the judges refuse to believe?  That the Soviet Union was preparing an attack or that this justified German aggression? The first boils down to establishing a fact. The second is a moral evaluation based on an interpretation of the motives of the accused. The Tribunal could scarcely refer to belief when it was a matter of establishing a fact. It would be more likely to produce evidence or refer to the fact that it was a matter of common knowledge.

Interpreting motives is more complicated. Did the accused think ‘honestly’ or otherwise? Or was he simply looking for a pretext to justify actions dictated by completely different motives? In the end it is a question of belief. Did the German command ‘honestly’ believe that Germany had to attack the USSR in self-defence? Or were the Nazis preparing an attack irrespective of whether the USSR was contemplating such a thing, i.e. motivated not by self-defence, but by the internal logic of its politics? In that case, the assertion that both Germany and the USSR were preparing to attack, but that it was Germany who actually did so does not contradict the Nuremberg Tribunal Verdict. As far as I know, not one of the revisionist historians asserts any more than this. Can we rule out this interpretation of the Nuremberg Tribunal? I’m not at all sure that it is the right one. I am simply stating how difficult it is to interpret this text. 

Once again to avoid misunderstandings: I am not saying that the theory that Stalin was planning to attack Germany in the summer of 1941 has been proved. I consider that the revisionist historians have drawn attention to a series of facts which cannot be adequately explained by the traditional concept of war:

• the enormous supremacy of the Red Army over the Wehrmacht in tanks, air force and artillery undermines the thesis that the USSR was not prepared for war;
•  the fact that the Soviet forces were grouped for attack rather than defence:  the main attacking force was positioned in salients penetrating deep into German-held territory, which facilitated their rapid encirclement by the Germans;
• the abrupt change in the tone of Soviet war propaganda on the eve of the war began the army’s moral and psychological preparation for an attack etc. 

These facts have to be explained and a new, scientific history of the war with no ideological blinkers developed. The secret archives must be opened and documents regarding the war plans of the Soviet leadership must be published.  They are hardly a military secret any more, but until now they have only been made available to researchers in small fragments.  Critics of revisionist theories are right to point out the weakness of their documentary base. But as long as the archives remain closed, the historian can only speculate, whatever his position.

Why Nuremberg?

So we are left with a rather strange situation. The legislators assert that if we prohibit the denial of Nazi crimes established by the Nuremberg Tribunal, then revisionist theories of the war become indictable. But reference to the Verdict makes it clear that this is far from the case - if, of course, this complex text is used at all conscientiously. The Verdict was a compromise between the victorious powers; it sidestepped many of the facts they found inconvenient (sometimes failing even to establish them precisely) and at times it resorted to ambiguities. Ordinary people find the resulting document very hard to understand.  Only specialists know it well, though it’s unwieldy even for historical research.  On several issues the point of view set out in the Verdict is not one shared by even the Russian government today. Using it in court would simply invite subjective and arbitrary interpretations.

Why did the authors of the law decide to shelter behind the Nuremberg Verdict? There are two possible explanations, which are complementary. Either the drafters didn’t bother to read the document to which they refer. Or maybe they imagined that, should this law be used in court, it would be interpreted by the experts and the judges would not have to consider the background of the trial.

For my own part, I oppose memory laws unconditionally. But I wish that the people who propose them would at least try and make them work. For a start, it has to be established what precisely it is that is being prohibited.   The devil is in the detail and neither objective history nor impartial justice can afford to neglect it.  Supporters of a memory law will never be able to convince me of the necessity for such a law. But I could be persuaded to believe in their sincere desire to protect the memory of the war.  I can’t at the moment see that any serious attempt has been made at creating a law – it’s just propagandistic bogey.

So far I have only talked of the shortcomings of this law. I should like to conclude with a more general thesis: that historical truth dictated by law is unacceptable.

Should we be able to take people to court for what they say about the past?

This is no place to air the old argument as to whether or not history is a science.  Even those who consider history to be a science will not deny its connection with politics.  Those who do not consider it to be a science will agree that historians have over the centuries developed complex research practices, enabling them to establish a large number of facts with considerable authenticity. Even the history of the present day, which is closest of all to politics, is not only about politics. Moreover, responsible politics cannot reduce history to a weapon of war. It should be founded on a well-substantiated understanding of social processes.  Without historical knowledge this is unthinkable.

Of course, it is naive to demand that politicians and the government abandon their attempts to promote their concept of history. But some ways of doing this should be off limits.  Academics should remain free to express their point of view, and their colleagues should be obliged to assess that point of view in the light of accepted rules of research and academic ethics. These rules can and must be criticised and perfected. Like any other rules, they are a form of power - the authority wielded by academia over its members.  They are also a constraint on freedom, including on arbitrary interpretations. But they guarantee the autonomy of knowledge.  If academic autonomy is sufficiently well developed, as it usually is in democratic countries, it limits the interference of politics in history. Anyone with extreme views who infringes professional standards is, of course, risking his reputation and his career. This is how public influence on the scholar works and it’s a very powerful weapon. But it doesn’t limit civil liberties.

Russia lived through the period of communism, so for her academic freedoms are particularly important. They must be carefully cultivated, as they have yet to put down roots. One should also not forget that the Russian Federation constitution forbids the creation of a state ideology. Absolutely all the current new ideologies - liberal, communist, nationalist - are based on one version of history or another. I think that the ban on state ideology means preventing the state from imposing some versions of the past on people and forbidding others.  A memory law is an extreme and obvious form of ban. That is why it is, in my view, not only harmful, but against the constitution.

Knowledge through comparison

Reference to the experience of other countries is hardly a convincing argument in favour of a memory law. Unreasonable behaviour by others is no justification for behaving that way oneself. Moreover, there are several differences between the proposed Russian bill and those examples to which its supporters refer.

Above all, one should not confuse two different types of law. There are laws prohibiting the expression of misanthropic ideas, the incitement of national and religious dissension, fascist parties and their programmes and symbols. In this respect Russian legislation needs to be improved.  But what it really needs is to be observed.  

Memory laws, controlling our memory of the past, are in a category of their own. Bracketting together incitements to violence and historical interpretations, however biased, is a nonsense. Like most historians, I consider memory laws unacceptable.

France is the classic example of a country favouring memory laws. Over recent years French colleagues, united in ‘Liberté pour l’Histoire’, succeeded in persuading their government to stop publishing memory laws. The pressure of public opinion has seen the latest of them cancelled. France is also one of the oldest democracies:  public opinion is very influential, there is a tradition of debates about the past, academic and civil freedoms are deeply rooted and the judiciary has a high degree of autonomy.  Memory laws would be unlikely to cause significant damage.

In Russia the situation is quite different. We do not yet have an established democracy, public opinion is weak, professional associations of historians exist only on paper and the judiciary is by no means independent. If the leadership, especially in the provinces, wants to use a memory law to settle scores with historians, whose faces for some reason ‘don’t fit’, there is little chance that colleagues will unite in their defence or that a court will show understanding. Bearing this in mind, we should refrain from passing memory laws.

To sum up, classical memory laws defend the memory of all who suffered from crimes committed by the government or with its support. France has laws covering denial of the Holocaust, the Armenian genocide in the Ottoman Empire or the fact that the slave trade was a crime against humanity. The memory law proposed in Russia is fundamentally different. It intends, above all, to defend its memory of itself. More precisely, it intends to defend its memory of that régime which many consider criminal. After all, accusations of unleashing war and installing régimes of occupation are accusations levelled at Stalin and Stalinism.

Is this not why the drafters of the law are avoiding saying clearly which historical facts cannot be denied without incurring a prison sentence?  Isn’t the memory of the war only a pretext for them to defend quite a different memory?

Notes

[1] http://www.duma.gov.ru, Number of the Bill 197582-5. All references to the memory law and to materials connected with its advancement are taken from this site.

[2] http://www.historians.org/press/Medvedev_Letter_June_17_2009.pdf

[3] The history of the bill is lost in ‘chronological opacity’. Above all, many documents, photocopies of which are found on the Duma site, are not dated, and sometimes not even signed. Furthermore, the electronic registration card of Bill 197582-5 on the Duma site informs us that a government decision on the bill is not required.   The bill was nonetheless submitted to the government, probably on 9th April 2009 (the government’s conclusion stated that it was done in response to order No. IaIA-2-183 of 9th April 2009), i.e. almost a month before the bill’s registration in the Duma, which, according to the same card, was on 6 May (the bill itself is not dated). The government decision, signed by Vice-Premier Sobianin, is dated 29 July 2009. Judging by the Duma website, it was registered in the Duma on 30 July, but it appeared on the site only on 21 August 2009. The delay could have been because it was the holiday period.   More difficult to understand is why this important and even ‘risqué’ document went unnoticed. There was no mention of it in the press until 14 January. The document, putting an end to the first version of the bill, attracted no one’s attention two days before the seventieth anniversary of the Ribbentrop-Molotov Pact, a week before the first meeting of the Commission against falsification, and ten days before the seventieth anniversary of the beginning of the Second World war. Neither publication on 31 August in the Polish ‘Gazeta Wyborcza’ of Vladimir Putin’s article calling on Poles to let bygones be bygones, nor the sensational address of Dmitrii Medvedev on the Day in memory of the victims of political repressions on 30 October (the President declared that the memory of the victims of the repressions is as sacred as the memory of the war) - nothing and no one remembered the government’s conclusion. Though it would be appropriate to stress that the Russian government does not share any extreme positions. People learned of this document only on 14 January, when the newspaper ‘Vedomosti’ published an article ‘Sobianin refused permission’ (http://www.vedomosti.ru/newspaper/article/2010/01/14/222888). Other mass media sources reported the Government’s conclusion with a reference to the article. I could find no other source than the ‘Vedomosti’ article. And in ‘Vedomosti’ no mention is made of the date; it is simply ‘fresh news’. But the conclusion is competently and sympathetically expounded; its author must have seen it. But if she had found it on the Duma website, then she would not have missed the registration date, 30 July. And in the document itself the date is encoded in the shape of the number of the document: 29071014.doc, in small print at the bottom of the page, utterly missable. Why then did this information appear in the middle of January? Soon after publication there was a second meeting of the commission against falsification, and the press started talking about the sixty-fifth anniversary of Victory. As reported by a Duma deputy, one of the ideologues of ‘Unified Russia’ and initiators of the memory law, Irina Yarovaya, a new variant of the bill, taking into account the remarks made by the government, was ready by the middle of January. Evidently, by then the prolonged period of hesitations was concluded by an acceptance of the decision to take the ‘perfected’ version of the law further. That the project had been elaborated and agreed became known to the press only on 30 March. It was reported that its tabling in the Duma would take place ‘in the following week’. But on the Duma site there first appeared, instead of the project, information that in the light of Governement remarks the legislative committee of the Duma had suggested to the ‘subjects of the law of the legislative initiative’ that they complete work on it. On the documents themselves (the decision of the committee and the accompanying letter of its president Pavel Krasheninnikov - incidentally, the co-author of the law - under Yarovaya’s name), placed on the Duma website, there is no date. The registration card of the bill informs us that the committee’s decision was taken on 23 March. But in Krasheninnikov’s accompanying letter, he points out that that decision was in reply to an appeal from Yarovaya on... 24 March! 24 March is the date on the accompanying letter, presented together with the new bill. So was the new bill too sent for some final work? And before registration in the Duma (judging by the registration card this happened on 16 April).

[4] http://avalon.law.yale.edu/subject_menus/judcont.asp. In what follows quotations are given from the Indictment and Verdict in my translation from English; the statutes of the court are cited according to the official Russian translation.

[5] This figure is erroneous. In Katyn Forest 4,000 Polish officers perished. 11,000 is the overall number of captive Polish officers executed by firing squad in the USSR.

[6] Sergei Lavrov’s article ‘The 65th Anniversary of the Great Victory’ in ‘Diplomaticheskii ezhegodnik - 2009’ is cited from: http://www.mid.ru/brp_4.nsf/0/11B29D877V188D3AC32576AC0025F4CD