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Criminalizing Communism: Transnational in Europe
Keywords: criminalizing communism transnational politics
europe
Maria Mälksoo
DOI: http://dx.doi.org/10.1111/ips.12041 82-99 First
published online: 1 March 2014
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Abstract
The Eastern enlargement of the European Union has
intensified calls for the reconstruction of a common European remembrance of
the continent's multiple totalitarian legacies. Various political initiatives
to condemn, along with counter-attempts to re-legitimize, the legacy of
communism have emerged at the pan-European level. Each aspires to leave an
imprint on the symbolic moral order and the legal regime of the broader
European community. This article builds a conceptual framework for
understanding the contestation of political and juridical regulation of the
transnational remembrance of totalitarian communist regimes in Europe.
Critically engaging the concept of cosmopolitanization of memory, it is argued
that mnemonic identity in Europe is being transformed via new claims on
“European memory.” These claims are being made by various East European actors
seeking recognition of the region's particular historical legacies as part of
the pan-European normative verdict on twentieth-century totalitarianisms.
In December 2010, the European Commission rejected calls
made by six East European countries to criminalize the denial of crimes
perpetrated by communist regimes, in the same way as a number of EU countries
have banned the public condoning, denial, and gross trivialization of the
Holocaust. The EU Council Framework Decision (2008) on combating racism and
xenophobia does not cover crimes directed against a group of persons defined by
reference to criteria other than race, color, religion, descent, or national or
ethnic origin—such as social status or political convictions, for example. As
the denial of crimes committed by totalitarian communist regimes is likewise
largely absent in the national legislation of EU member states (with the
exception of the Czech Republic, Poland, Hungary, Lithuania, and, somewhat less
explicitly, Latvia), the Commission concluded that the necessary legal
conditions for adopting an additional legislative instrument for tackling these
crimes at EU level had not yet been met (European Commission 2010). As is often
the case, the legal justification hides further political controversies: many
suspect the undertaking to include international crimes against social and
political groups (which comprise the bulk of so-called communist crimes) into
the European Union's area of legal coverage to be a thinly veiled attempt to
mitigate East Europeans' own complicity in the Holocaust (Guerreiro in European
Parliament 2009c; Katz 2009). Seeking equal legal treatment of totalitarian
crimes of different origin is thus regarded as political relativism,
threatening to “dilute the unique nature of the Nazi crimes” (Ford in European
Parliament 2009c).
Recent years have indeed witnessed intensified attempts on
the part of various East European actors to politically condemn and criminalize
the totalitarian communist legacy by means of national, European, and/or
international law. At a pan-European level, this has resulted in a sequence of
political declarations, legal initiatives, and resolutions by the Council of
Europe (CoE), the European Court of Human Rights (ECtHR), the Organization for
Security and Co-operation in Europe (OSCE), and the European Union, condemning
totalitarian communist regimes in various ways. As the debates held in these
multiple political fora demonstrate, efforts to influence the normative and
institutional formation of a pan-European remembrance of communist regimes have
hardly gone unchallenged. The meaning of the communist legacy for the “European
memory” has emerged as a political issue of substantial controversy and
significance. How, then, should we make sense of this struggle over
criminalizing totalitarian communist regimes in Europe? On what basis is the
institutionalization of the “memory” of totalitarian communism being called
for? And what discourses are invoked in the respective pan-European
mnemopolitical debates?
Exploring how initiatives to condemn totalitarian communist
regimes are translated into the symbolic moral order and legal regime of the
broader European community brings to the fore an overlooked aspect of
transnational mnemopolitics in Europe. It is not that existing research has
ignored the normative power of constructing a “common European memory”—indeed,
it has paid considerable attention to it (Spohn and Eder 2005; Challand 2009;
Jarausch 2010; Karlsson 2010; Leggewie 2010; Pakier and Stråth 2010;
Littoz-Monnet 2012). Rather, current works have largely failed to theorize the
normative implications of mounting calls for the juridification of
“remembering” communism for the dynamics of transnational mnemopolitics in
Europe, nor have they adequately captured the role of East European actors in
the process (cf. Closa 2010a,b, 2011). While there is a growing acknowledgment
of the transformation and pluralization of European memory regimes in the
literature (Levy and Sznaider 2007:174), the diversification of the mnemonic
inventory in Europe remains to be substantiated, with analyses focusing on the
new trajectories of remembrance intersecting with the established mnemonic code
of the Holocaust.
This article develops a conceptual framework in order to
begin to fill this void. Taking account of the various calls to criminalize,
and counter-attempts to re-legitimize, the legacy of totalitarian communist
regimes in Europe, I sketch out a condensed genealogy of the formation of a
common assessment, or “memory,” as it is often dubbed, of the communist legacy
at four main pan-European fora, paying particular attention to the increasing
volume of juridifying discourses. A genealogy—what Nietzsche (1967) conceived
as “effective history” (wirkliche Historie) and Foucault (1984) as a “history
of the present”—aims to describe how the present became logically possible
(Bartelson 1995:7), or to illuminate a contemporary phenomenon that is deemed
to be problematic from the perspective of the past (Elbe 2001:260–263). As a
Foucaultian genealogical approach is specifically concerned with interpreting
the sources of moral discourses (Price 1995:85–86), and demonstrating the
diversity and specificity of battles between different interpretations of
social phenomena (Vucetic 2011:1301), it is particularly well suited for
explaining the scattered emergence of a pan-European discourse of remembering
communism. A genealogical inquiry into pertinent debates from the CoE and the
ECtHR to the OSCE and the European Union highlights how something is reclaimed
from the past—in this case the communist legacy—for the purpose of
reinvigorating a particular understanding of “common European values” in the
present or, indeed, questioning “the value of these values themselves” (see
Nietzsche 1967:20). Legal debates disclose the attempted translation of
specific national and regional experiences into pan-European norms and practices,
providing a window into understanding law as a medium of collective
remembrance, aimed at furnishing a particular sense of European community (cf.
Levy and Sznaider 2010:18). Embracing four pan-European fora enables us to
examine areas of overlap and the mutual reinforcement of tropes of condemnation
across distinct organizations, illuminating recognition-seeking and struggles
for mnemonical hegemony, contingency, and resistance in the operation of the
emerging moral discourse. Zooming out of the European Union is therefore
essential for incorporating the respective pan-European debates with the active
presence of the representatives of the Russian Federation as political and
legal successor to much of the communist experiment in Europe (cf. Rostoks 2011).
This approach tallies with the so-called three E definition of genealogy—a
reference to episodes, examples, and effectiveness in bringing about a
particular normative assessment of the past in the context of the present
(Vucetic 2011:1300). The empirical account offered here is necessarily
episodical; exploring a more comprehensive evolution of the discourse on the
remembrance of communism through a condemnatory prism would have necessitated a
considerably broader focus, with a wider range of discursive genres and fora,
starting at least with the critical debates related to the publication of The
Black Book of Communism in France in 1997 (1999 in English) and the German
Historikestreit in the late 1980s.
I propose two non-exclusive contexts through which debates
over the pan-European condemnation of totalitarian communist regimes may be
theorized. First, the way in which East European actors of various stripes have
taken the so-called Holocaust template and modeled their own quest for
determining the contents of the “European memory” accordingly warrants a
critical interrogation of the concept of the “cosmopolitanization of memory,”
underpinned by the remembrance of the Holocaust as the universal ethical
problem (Levy and Sznaider 2010). As a mnemonic signifier, the Holocaust is an
example of the transnational memory discourse, putting pressure on national
narratives and thereby reshaping them (Berger 2012:31). If communism was
supposed to “embody, exemplify and spread a kind of universal, therefore
universally comprehensible, culture” (Judt and Snyder 2012:239), this article
seeks to fathom whether a universalist ethos of a similar kind is informing the
contemporary anti-communist movement in Europe. I maintain that the
pan-Europeanization pursuits of the mostly East European recollections of
communism offer an intriguing case of transnational remembrance in the making.
Lessons drawn from the Second World War (WWII) and the Nazi atrocities once
laid the foundation for the European project, making it “a peculiar kind of
monument to the Second World War” (Müller 2010:30), with Holocaust recognition
as a “contemporary European entry ticket” (Judt 2010:803). The campaign for the
pan-European condemnation of totalitarian communist regimes calls inter alia
for the revision and substantive enlargement of the existing constitutive
narrative of the European Union, raising potentially uncomfortable questions
for some about West European complicity with the East European postwar plight
under communist rule. The remembrance of WWII and the communist legacy are thus
closely connected in Europe, given the very centrality of WWII as the founding
event of the European project.
Second, I suggest that the East European politics of seeking
pan-European condemnation of totalitarian communist regimes in explicitly
universalist, moral, and increasingly legal terms is an evocative example of
the expression of political grievances over insufficient recognition of the
region's particular historical legacies. Seeking condemnation of totalitarian
communist regimes and, furthermore, the criminalization of the denial of crimes
committed by these regimes at the pan-European level, interrogates, in
particular, the hegemonic mnemonic narrative of the pre-Eastern enlargement
European Union with its exclusive denouncement of the Holocaust. As the debates
in multiple pan-European fora demonstrate, the struggle for the universal
condemnation of totalitarian communist regimes is a sub-strand of the human
rights movement which strives to expand the official pan-European category of
criminal totalitarianism. This endeavor (which in fact reaches back to the very
origins of the Cold War) is based on an assumption of the universal dignity of
all victims, regardless of the perpetrator regime. It stems from a position of
ethical cosmopolitanism, maintaining that a shared sense of European-ness
should make the historical injustices caused by totalitarian communist regimes
a universal concern for all Europeans.
The politics of recognition comprises, particularly at EU
level, attempts to broaden the base of the “universal lessons” of
totalitarianism in Europe in order to turn the particular East European
experiences with totalitarian communist regimes into a part of the established
European mnemonic “master narrative.” This is exemplified by the predominantly
East European membership of the all-party Reconciliation of European Histories
Group in the European Parliament, chaired by the Latvian representative, Sandra
Kalniete, and aimed at “including the experience of the postcommunist nations
into common narrative of the European History.” The numerical preponderance and
vocality of East European interventions in debates at Parliamentary Assembly of
the Council of Europe (PACE) and the European Union reflects further this
struggle for recognition (see Rostoks 2011:196–197 for a detailed account).
Important public hearings and international conferences on the subject of
crimes committed by totalitarian regimes have been organized under the aegis of
the Slovenian, Czech, Hungarian, and Polish EU Presidencies in 2008–2011. Calls
for the pan-European condemnation of totalitarian communist regimes explicate a
move from the renationalization of memories (typical during the immediate
aftermath of communism in Eastern Europe) to postnationalist aspirations. These
initiatives also constitute a demand for political justice of a particular
kind. By seeking recognition for the inclusion of their encounters with
communism into the established European mnemonical narrative of twentieth-century
totalitarianisms, the East European mnemonic actors concurrently seek
recognition for their agency as Europeans (Mälksoo 2009).
While the experiences and assessment of communism in Eastern
Europe have hardly been homogeneous (Judt 2010), this politics of recognition
is also designed to legitimate a particular regime of truth in the countries
making the pertinent claims. It is therefore important to identify that
although the fault lines of “European memory” along the Cold War East–West
dichotomy are regularly emphasized in debates, mnemonical unity is nonetheless
illusory on both sides. The alleged anti-communist consensus varies greatly in
the postcommunist countries of Eastern Europe (Troebst 2010). Likewise, the
discourse of the various spokespersons seeking to condemn totalitarian
communist regimes frequently obfuscates the distinctly heterogeneous views
among so-called Western public opinion on the issue, breaking down the binary
between fiercely anti-communist “East” and indifferent “West.” While no tidy
symmetry exists between different assessments of the communist legacy in the
East and West of Europe, it is nonetheless undeniable that before the Eastern
enlargement of the European Union, the institutionalized European remembrance
remained largely silent on the issue.
The current shift toward adopting a condemnatory stance
toward the communist legacy owes much to the interpretation of European values
and identity, as opposed to the tenets of totalitarianism. This sentiment was
evocatively captured by a Czech politician, Alexander Vondra, as
President-in-Office of the Council of the European Union during the European
Parliament debate on European Conscience and Totalitarianism. He claimed that
the European Union:
… stands for everything that is the opposite of
totalitarianism. For those of us who emerged from the grip of Communism,
membership of the European Union is one of the main guarantees that we will
never again revert to totalitarianism… It is something to be valued and never
taken lightly. A collective conscience and memory of the past is a way of
reinforcing the value of the present. (European Parliament 2009b)
The empirical part of this paper dissects specific claims on
“European memory” which range from seeking equal legal treatment of communist
and Nazi crimes, to calls for the overall condemnation of communism as a strand
of political thought. These claims can be regarded as communication tools for
venting resentment about the alleged imbalance of representation and power
between the “new” and “old” members of the European Union—the traditional and
emergent actors in European politics. Regardless of proponents' universalist
framing of this struggle, diverse East European actors' claim to a place in a
shared European memoryscape of twentieth-century totalitarianisms has often
been understood as a particularistic project, deliberately challenging the
hegemonic mnemonic narrative currently informing the contemporary European
identity, broadly conceived. A genealogical inquiry into pan-European struggles
to bring about a political, moral, and legal condemnation of the totalitarian
communist legacy enables us to probe the diverse ways discourses constitute the
subject positions of different East European actors in pan-European mnemopolitics,
and to problematize the production of these discourses as a form of normative
power.
It is through “memory,” after all, that a political
community validates and reproduces, but also challenges itself (Levy and
Sznaider 2010:4). “Memory” refers here to the officially endorsed, or
politically coordinated and sanctioned remembrance of the past, manufactured by
elites and shaped by institutional control. The “common memory” in question is
really more a pan-European self-representational strategy, a form of discursive
power rather than a cognitively shared collective remembrance. I approach the
“European memory” as a particular discourse which is based on social and
political negotiation and bargaining; it requires considerable social work and
is therefore also reflective of the power relationships that constitute it
(Pakier and Stråth 2010:6–7). As a genealogical approach is more concerned with
an interpretation of what kind of politics is promoted by a moral system,
rather than seeking to account for the conscious intentions of actors engaged
in the process, it does not presume a necessary convergence between discursive
and material, or structural, power (Price 1995:88).
While “memory” is the term generally used in the discourses
under review, the notion of remembrance is preferred here for its emphasis on
processuality instead of a fixed storage space. “Remembrance” is particularly
apposite for this study due to its emphasis on the active process of
remembering, as reflected in the sought institutionalization of the guidelines
outlining the suggested public relationship to Europe's multiple totalitarian
pasts. Likewise, the recognition pursued in transnationalizing the
predominantly East European condemnation of totalitarian communist regimes can
only be understood as a dynamic process, rather than a static notion, for “even
if obtained and institutionalized politically, [recognition] is always subject
to new contestation” (Cooke 2009:29). Pan-European political declarations,
legal initiatives, and international court decisions are thus taken as an
exemplary embodiment or attempted reification of certain remembrance practices,
as the putative “common European memory” in flesh.
The next section locates the subject matter against the
backdrop of the argument on mnemonical cosmopolitanization, as recently
developed in political sociology. Consequently, the contention over determining
the nature of the largely East European claims for recognition, in the context
of the struggle for condemning totalitarian communist regimes, is addressed.
The workings of the conceptual framework are then illustrated with a brief
genealogical cut into pan-European fora that have contributed, to differing
degrees, to the construction of the remembrance of the communist legacy through
a condemnatory normative prism. The chosen examples, adumbrated here for the
purposes of brevity, together constitute a part of the latest episode in the
transnational mnemopolitics in Europe, enabling us to delineate an emerging
discourse on “remembering communism” in contemporary Europe.
Constructing a Cosmopolitan Memory?
Cosmopolitanization of memory is often regarded as a
coproduct of European integration (Spohn and Eder 2005; Beck, Levy, and
Sznaider 2009; Levy and Sznaider 2010). This is only symptomatic against the
backdrop of the academic study of the European Union that is full of references
to its alleged sui generis nature. The expected emergence of a shared
memoryscape of Europe, with a harmonization of moral and political attitudes
and remembrance practices in dealing with different pasts, is a characteristic
expression of an assumption about the European Union's role in fundamentally
reshaping the traditionally national patterns of social remembrance.
In light of recent critical revisions of the concept of
mnemonical cosmopolitanization (Levy, Heinlein, and Breuer 2011), there are two
relevant observations to take on board for making sense of the politics of
pan-European condemnation of totalitarian communist regimes. First, just as it
is with the “memory imperative” of the Holocaust (Levy and Sznaider 2002:101),
the consolidation attempts of the condemnation of totalitarian communist
regimes underscore the urgency of remembrance for the future of Europe.
Likewise, an attempted Europeanization in relating to “communist crimes” is
built on a cosmopolitan ethic, or the “acknowledgement of some notion of common
humanity that translates ethically into an idea of shared or common moral
duties toward others by virtue of this humanity” (Lu 2000:245). Second, a major
argumentative thread in the respective calls seeks recognition of the history
and memories of the “Other” (or the incorporation of the historical experiences
of East European countries in the pan-European “lessons” of totalitarianism and
war), resonating with so-called methodological cosmopolitanism, aimed at
including the “otherness of the other” (Levy and Sznaider 2002:103). As a
Polish Member of the European Parliament, Adam Bielan has captured both strands
of the discourse: “We must remember that understanding the past of the whole of
Europe, and not only its western part, is the key to building a common future”
(European Parliament 2009c).
The “Holocaust template” has a strong resonance in
pan-European debates over the condemnation of totalitarian communist regimes.
The way the Holocaust was turned into a cosmopolitan equivalent of “evil” in
Western historical consciousness has provided inspiration for the criminalizers
of other historical legacies in their pursuit of international recognition of
particular past experiences (Luik 2008). That is why the “Holocaust analogy”
has become a sword for some and a shield for others in the contention over the
reconstruction of a new moral order regarding the universal condemnability of
totalitarian communist regimes, along with Nazism. Those critics disapproving
of the way this analogy has been appropriated in the emerging normative
discourse on communist regimes have denounced the pertinent East European-led
mnemopolitics as an attempt at the kind of interpretive reversal that Foucault
(1984:85–86) described as “seizing the … rules, to replace those who had used
them, to disguise themselves so as to pervert them, invert their meaning, and
redirect them against those who had initially imposed them.”
The Politics of Recognition
The struggle for pan-European moral and political
condemnation of totalitarian communist regimes and the equal legal treatment of
communist and Nazi crimes, driven largely by East European actors, features as
the politics of recognition. Charles Taylor (1992) has distinguished between
two meanings of the politics of recognition, arguably in the form of a
historical sequence: the politics of equal dignity and the politics of
difference. While the first of these focuses on what should be shared by all
human beings (human rights, for instance), the second, the politics of
difference, is related to social movements seeking to protect and celebrate
distinct identities instead. Accordingly, the politics of equal dignity seeks
the establishment of an identical set of rights and immunities, while the
politics of difference (even though underlying its demand is a principle of
universal equality) has a more particularistic flavor, for “what we are asked
to recognize… is precisely this distinctness that has been ignored, glossed
over, assimilated to a dominant or majority identity” (Taylor 1992:38–39).
Taylor's argument's setup is essentially the nation versus the universal,
whereas the transnational but not universal drops out.
While a concern for recognition of the communist legacy as
part of the European remembrance of totalitarianism is not universally shared
within Europe, it cannot quite be captured within the framework of the politics
of equal dignity. Yet, for all its appeals to universal values, and emphasis on
the right of the victims of totalitarian communist regimes to equal dignity and
respect (see Bruzga 2008), it hardly fits Taylor's category of the politics of
difference either. Following Maeve Cooke's (2009:79–80) emphatic deconstruction
of Taylor's binary, it is fair to claim that the largely East European
actor-driven transnational mnemopolitics of condemning totalitarian communist
regimes entails both elements of the politics of equal dignity and a demand for
the recognition of the substantive value of East European encounters with
communism for the normative foundations of the European community. Thus, it is
not the issue of seeking recognition of the East European difference (or
identity politics) that is at stake here. Rather, while demanding pan-European
recognition for the universally condemnable qualities and capacities of
totalitarian communist regimes, this struggle also calls for recognition of the
value of the distinctly East European experience that has not been universally
shared in Europe. As such, the logic of the East European politics of
recognition is similar to the functioning principle of mnemonic
cosmopolitanism: it is not either universalism or particularism, but both a
push for universal condemnation of the communist legacy and a call for
simultaneous recognition of the specifically East European contribution to the
European remembrance of totalitarianism.
As the empirical discussion demonstrates, condemnation of
the crimes of communist regimes is generally sought in an abstract manner, or
as formal recognition (Cooke 2009:81), and less frequently for the value of a
substantive end (or concrete good). Seeking the establishment of the right to
be a recognized part of a pan-European “memory” by legal provisions via the
official institutional condemnation of communist regimes, and the
criminalization of the denial of their crimes, thus runs parallel to a campaign
for simply winning more prominent public acknowledgment of the crimes of
totalitarian communist regimes (reflected inter alia in pan-European
commemoration and memorialization policies; see Closa 2010a:13). Hence, the
struggle to include the legacy of totalitarian communist regimes under the
denouncing gaze of pan-European institutions of various kinds breaks down the
binary suggested by Taylor (1992) according to which the politics of equal
dignity corresponds to a type of social movement in which a concern for legal
issues is paramount, while the politics of difference is related to social
movements in which the principal issues are identity related (Cooke 2009:77).
Moreover, as the spheres of recognition-seeking, criminal justice, and
identity-building tend to overlap (Closa 2011:18), it might be difficult to
distinguish in practice the nature of desired goods in the process of
recognition-seeking. As Carlos Closa, who directed the European
Commission-solicited Study on How the Memory of Crimes Committed by
Totalitarian Regimes in Europe Is Dealt with in the Member States (2010b), uses
the example of the former communist states to suggest that efforts to
criminalize the denial of crimes committed by totalitarian communist regimes
are primarily seeking recognition for sanctioning a certain kind of behavior as
a crime, rather than striving for specific punishments or actual criminal
proceedings (Closa 2011:20). “Criminalizing communism” is therefore more about
seeking recognition of East European actors' equal standing in the European
community—their right to be a recognized part of “European memory”—and less
about the practical potency of the criminalizing measure as such.
The following empirical illustrations highlight that this is
nonetheless a moot point for those actors seeking condemnation of the communist
legacy in Europe and those perceiving this struggle as an anti-Russian movement
in moral disguise. The former strive to unite Europe through an appeal to
universal judgment on the communist experience of Eastern Europe and the need
for equal dignity for the victims of different totalitarian regimes. Their
claim to a “right to memory” (that is occasionally accompanied by a demand to
hold equal rights under the law, or equal respect for equal suffering)
indicates the degree to which the institutionalized European recognition is
constitutive of their subjectivity as Europeans. The latter emphasize the
particularity of the respective interpretation instead, understanding the
condemnation campaign as a modern right-wing political revenge strike on the
left, as well as a vicious, if emancipatory, blow by Russia's former East
European dependents on their despised ex-colonial “master.” The proponents of
the pan-European condemnation of communist regimes claim to seek recognition,
in the first instance, as an abstract universal right. Meanwhile, their critics
suspect concrete legal and political consequences, mainly to the detriment of
contemporary Russia.
The pan-Europeanization of the condemnation of totalitarian
communist regimes has been further criticized as an attempt to sway the focal
position of the Holocaust in the European memoryscape, to debate its
significance as a constitutive event. This thread of criticism sees the venture
as a deliberate ploy to relativize the criminalizers' own participation in the
Holocaust, camouflaged behind their employment of the language of universal
human rights and values of human dignity. That is the case in spite of the
official discourse of the criminalizers of totalitarian communist regimes
taking exquisite care with wording, emphasizing the uniqueness (and hence the particularity)
of the Holocaust.
The two conceptual lines outlined above bear on the
following empirical examples in distinct ways. A critical cosmopolitan
perspective is helpful for illuminating the mnemonical transformations in
contemporary Europe as it provides a diagnostic capacity for analyzing the
interplay between the agendas of particularistic origin and universalistic
drive in the transnational mnemopolitics over the remembrance of multiple
totalitarian legacies in Europe. Understanding this pursuit as a struggle for
recognition sheds further light on the predominantly East European rationale in
this politics. As both parts of the suggested conceptual framework are informed
by the interaction between a cosmopolitan ethic and processes of particularization,
they are mutually reinforcing.
Europeanizing the Remembrance of the Communist Legacy in
Europe
The following empirical section identifies and delineates
the dynamics of the contending discourses on the communist legacy, pinpointing
the features of totalitarian communist regimes that have come to be regarded as
essential in disputes over (i) the definition of their legitimate remembrance;
(ii) their labeling and evaluation, and (iii) (legal) standards of judgment to
be applied across the main pan-European political and legal fora (cf. Price
1995: 89).
Parliamentary Assembly of the Council of Europe
The Council of Europe has been a pioneering organization
among those pan-European fora in which the search for political condemnation of
totalitarian communist regimes has borne fruit. To date, the PACE has produced
two important resolutions on the matter. The first of these is of a general
character, dating back to 1996 (Council of Europe Parliamentary Assembly 1996).
The second, and arguably the most comprehensive resolution on the matter to
date (Žalimas 2010), was issued on January 25, 2006, whereby the Council of
Europe strongly condemned crimes of totalitarian communist regimes, implicitly
recognizing genocidal intent behind the communist liquidation policies of
certain groups of people (Council of Europe Parliamentary Assembly 2006a; see
also Council of Europe Parliamentary Assembly 2006b, c, 2010). The Assembly
furthermore called on all communist or postcommunist parties in its member
states to “clearly distance themselves from the crimes committed by
totalitarian communist regimes and condemn them without any ambiguity” (Council
of Europe Parliamentary Assembly 2006a:para.13).
While the full draft recommendation for a 2006 PACE
resolution by the Swedish rapporteur Göran Lindblad was issued with a large
majority by the Political Affairs Committee, it nonetheless did not receive the
necessary two-thirds majority in the Parliamentary Assembly since the group of
communist parties, including prominent Russian representatives, vehemently
opposed the resolution. This turned out to be the main contingency in framing
the undertaking rather cautiously as the “need for” international condemnation
of crimes of totalitarian communist regimes, instead of calling a spade a
spade; it also contributed to the obstruction of the draft recommendation
calling on European governments to adopt a similar stance. The draft
recommendation had indeed foreseen more thoroughgoing measures than the
resolution adopted by the Assembly eventually contained, ranging from carrying
out legal investigations into individuals engaged in “communist crimes” to the
creation of commemoration and memorialization policies.
The debates accompanying the adoption of the Resolution
1481/2006 nonetheless reveal a straightforward call for the Europeanization of
the treatment of the communist legacy. This is particularly the case when
Europeanization is understood as Beck et al. (2009:120) define it: “to struggle
for institutional answers to the barbarity of European modernity.” For them,
the construction of a “cosmopolitan Europe” thus means “the institutional
self-critique of the European way.” A typical trinity of arguments is presented
in support of condemning totalitarian communist regimes: the need to raise
general public awareness of the criminal legacy of communist regimes (see
Mihkelson in Council of Europe Parliamentary Assembly 2006b; and Herkel and
Němcová in Council of Europe Parliamentary Assembly 2006c); the desire to
morally restitute the victims (for the legal and economic restitution remains,
due to the distance in time, in most cases unachievable anyway); and to
politically condemn the ideology and methods of totalitarian communism in order
to avoid the possible re-emergence of this model of governance in the future
(Saks in Council of Europe Parliamentary Assembly 2006b; Němcová in Council of
Europe Parliamentary Assembly 2006c).
Representatives from the Baltic states, Bulgaria, Ukraine,
and the Czech Republic further emphasized the symmetry between Nazi and
communist crimes and pointed to the vital connection between the willingness to
approach one's own history critically and the potential for true
democratization, clearly alluding to the prospects for democracy in Russia.
Opinions diverged on whether or not the communist ideology should be deemed
guilty as such: while there were voices among the pro-condemnation group
arguing relentlessly that communism could “never be reformed and is absolutely
incompatible with the notion of democracy” (Němcová in Council of Europe
Parliamentary Assembly 2006c), others preferred to leave this thorny issue for
intellectual discussion and out of the debate over the PACE report.
What was generally presented as at stake by those
representatives calling for the condemnation of the crimes of totalitarian
communist regimes in the debates leading to the adoption of the respective
resolution was not criminal justice for the perpetrators, or reparatory justice
to materially repair and compensate for prior wrongs, but rather historical
justice—the creation of historical accountings of communism in order to redefine
the European experience of totalitarianism more comprehensively, and to
reconstruct a common European identity accordingly. The arguments presented in
support of the international condemnation of totalitarian communist regimes
spoke very much for the connection between a particular relationship to the
communist legacy and modern European sensibilities. They highlighted a request
for the formal acknowledgment of equal dignity for the victims of totalitarian
communist regimes rather than seeking recognition for the value of a
substantive end.
As with any disciplining discourse, the attempted
condemnation of totalitarian communist regimes drew considerable resistance
from numerous national and ideological quarters. Greek, Cypriot, Czech, and
Russian representatives, some of them with explicitly communist party
affiliation, reached for a standard defense in support of the communist cause
in the PACE debate of January 25, 2006. This defense centered on the Soviet
Union's role in the fight against Nazism and the allegedly consequent
impossibility of equating the legacies of the Soviet and Nazi regimes. Not only
was it claimed to be “unacceptable to equate the word ‘communist’ with crime”
given the impossibility of “criminaliz[ing] class struggle” (Kanelli in Council
of Europe Parliamentary Assembly 2006b), but “the sacrifice of the lives of
twenty millions Russians” could never be forgotten either (Christodoulides in
Council of Europe Parliamentary Assembly 2006c). Critics read Lindblad's draft
resolution as a text aimed at “stigmatization of the communist ideology as
such,” and therefore, a “merely political declaration and a dangerous and
unworthy attempt for rewriting of history” (Konečná in Council of Europe
Parliamentary Assembly 2006c). The push for international condemnation of
totalitarian communist regimes was accordingly labeled “a reactionary and
ideological campaign” (Konečná, ibid.); “a desperate attempt by conservative
and extremist forces to defocus the people of Europe from their day-to-day
problems” (Christodoulides in Council of Europe Parliamentary Assembly 2006c).
A Russian communist representative, Gennady Zyuganov, even reproached the
condemnation campaign as a push to “revert back to fascism” (Council of Europe
Parliamentary Assembly 2006b). Depicting the condemnation of totalitarian
communist regimes in exclusive either/or terms vis-à-vis the condemnation of
Nazism, the critics denounced the universalistic appeal of the campaign.
While the adopted resolution was ultimately quite restrained
in light of the demands of the vehement anti-communists, as well as legally
non-binding, the European Court of Human Rights, established under the auspices
of the Council of Europe, has managed to address calls for criminal justice for
the victims of communist crimes in a more sustained and comprehensive manner.
From the standpoint of international law, a political resolution, such as
PACE's 1481/2006, could be considered as merely a subsidiary tool or additional
source to interpret relevant rules of international law regarding the
qualification of the international crimes committed by communist regimes as
crimes against humanity, war crimes, or genocide (Žalimas 2010:8). ECtHR
rulings, however, are binding to those states who are contracting parties to
the European Convention on Human Rights. They have thus given a more concrete
substance to criminalizing communism, functioning as a symbol of
recognition-seeking for the value of distinctive experiences with communism for
the normative reformation of the European community.
European Court of Human Rights
The legal basis for international condemnation of the crimes
of communist regimes can be found in the customary international law principles
recognized in the Statute of the Nuremberg International Military Tribunal, and
the jurisprudence of this Tribunal.
The debate over holding the standard formulated at Nuremberg
to be universal in the context of WWII acquired wider resonance for the overall
pan-European assessment of the totalitarian communist legacy, with the
consecutive rulings of the ECtHR in the case of Kononov v. Latvia. Former
Soviet partisan, Vasily Kononov, had been convicted by the Latvian courts for
leading a group of Soviet partisans who killed nine inhabitants of the Eastern
Latvian village of Mazie Bati on May 27, 1944, for their alleged collaboration
with the Germans occupying the country at the time. The 2008 judgment by the
ECtHR's former Third Section found Latvia to be in violation of Article 7 of
the European Convention on Human Rights which enshrines the prohibition of
retroactive application of criminal law when convicting Kononov for a war
crime. As Judge Egbert Myjer of the Netherlands put it, in the concurring
opinion to the chamber's judgment (Myjer 2008:65): “… the Nazis and their collaborators
were entirely in the wrong and those who fought against the Nazis … were
completely in the right.” Just two years later, however, the Grand Chamber of
the ECtHR reversed the previous judgment of the Court's Third Section (European
Court of Human Rights 2010). Symptomatic of the dividing lines of the debate,
the Russian Federation intervened in the process before the Grand Chamber as a
third-party state in support of Kononov, while Lithuania stepped in for Latvia.
Contra the openly discriminatory understanding of war crimes
that had informed the original ECtHR ruling in the Kononov case, the Grand
Chamber upheld the war crimes conviction of Kononov by the previous rulings of
the Latvian courts. Thereby, the Court established an important precedent in
applying the Nuremberg standards to the winners of WWII, approving the
measuring of all international crimes committed in the context of the war by
the universal normative benchmark, regardless of their perpetrators' allegiance
to the supposedly more rightful jus ad bellum (Mälksoo 2011). The successful
Latvian appeal thus constituted a major victory for the broader politics of
seeking recognition for the distinct East European experiences with
twentieth-century totalitarian regimes, and the legal treatment of communist
crimes on par with the crimes of the Nazis. Sandra Kalniete, Latvian chair of
the European Parliament's informal group, Reconciliation of European Histories,
welcomed the Grand Chamber's judgment as a step toward historical justice. In
turn, the Russian Ministry of Foreign Affairs (2010) called the Court's final
judgment “a very dangerous precedent” that represented:
an attempt to cast doubt on several key legal and political
principles that emerged following the Second World War and the postwar
settlement in Europe, particularly with regard to the prosecution of the Nazi
war criminals … [T]he Grand Chamber has actually agreed today with those who
seek to revise the outcome of World War II and whitewash the Nazis and their
accomplices … [T]he decision seriously damages the credibility of the Council
of Europe in general and may be viewed as an attempt to draw new dividing lines
in Europe and to destroy the continent's emerging consensus on pan-European
standards and values.
The debates about, and repercussions of, the Kononov case in
the ECtHR provide an emblematic illustration of the fundamental divide between
the universalistic and particularistic assessments of communist crimes,
emphasizing ongoing contestations over the hegemonic mnemonic narrative of
twentieth-century totalitarianisms and war in Europe at large. This case
vividly exemplifies the multiple “fronts” of the East European struggle for
seeking political and legal recognition of communist crimes. Moreover, the
discussions surrounding the Kononov case confirm the observation about how
justice established in trials addressing human rights abuses can itself become
a new form of remembrance and, consequently, the inaugurated law a medium of
collective memory (Levy and Sznaider 2010:18–19). As Levy and Sznaider remind
us (2007:166), it was “ultimately … the memory of the Second World War and not
the Holocaust that stood at the center of both the Nuremberg trials and the
nascent idea of a European community.” The final ruling of the ECtHR in the
Kononov case could accordingly be read as a codification of an emerging
remembrance at the European level, as it encapsulates the intertwining of the
remembrance of WWII with a broader assessment of the communist legacy for
Europe. In this sense, “the jurisprudence serves a fixative role,” as the
finality of legal judgment can eventually help to settle contested histories
(Buyse and Hamilton 2011:6). Judgments, such as the ECtHR Grand Chamber's
ruling in the Kononov v. Latvia case, are thus transformative opportunities for
the wider European assessment of the crimes committed by communist regimes.
Organization for Security and Co-operation in Europe
Yet another such transformative opportunity was provided by
the OSCE Parliamentary Assembly's (PA) adoption of the Resolution “On Divided
Europe Reunited: Promoting Human Rights and Civil Liberties in the OSCE Region
in the 21st Century,” in 2009, at the annual session of the Assembly in
Vilnius. This resolution, also known as the Vilnius Declaration, compared the
two major totalitarian regimes in twentieth-century Europe, “the Nazi and the
Stalinist, which brought about genocide, violations of human rights and
freedoms, war crimes and crimes against humanity” (2009:48, para.3). While
acknowledging the uniqueness of the Holocaust, the resolution reminded the OSCE
participating states of their commitment “to clearly and unequivocally condemn
totalitarianism” (ibid. para. 5). The Declaration further supported the
initiative of the European Parliament to proclaim August 23, the day the
Molotov-Ribbentrop Pact was signed, in 1939, as “a Europe-wide Day of
Remembrance for Victims of Stalinism and Nazism,” (ibid. para. 10) and urged
its member states to increase awareness of totalitarian crimes. The Vilnius
Declaration encouraged all OSCE members to take a “united stand against all
totalitarian rule from whatever ideological background” (ibid. para. 11) and
criticized the “glorification of totalitarian regimes, including the holding of
public demonstrations glorifying the Nazi or Stalinist past” (ibid. para. 17).
Critics from the Russian Duma and elsewhere interpreted the
Vilnius Declaration as an assault on established historical memory (cf. Kurilla
2009:5), as yet another adventure of the “east European far right” (Katz
2010a), constituting “the new code for double genocide, Holocaust obfuscation
and the special brand of east European antisemitism” (Katz 2010b). As a
Guardian columnist evocatively concluded, “The pretense that Soviet repression
reached anything like the scale or depths of Nazi savagery… is a mendacity that
tips toward Holocaust denial” (Milne 2009). As is characteristic in the
operation of moral discourse on communist regimes, the Vilnius Declaration
epitomizes the contestation for mnemonic hegemony in Europe, featuring further
the resistance from various quarters to the attempted reconfiguration of the
pertinent pan-European narrative. While critics typically depict the
condemnation of totalitarian communist regimes as a zero-sum problem vis-à-vis Nazi
crimes, proponents emphasize the recognition of this particular legacy for the
integrity of the normative foundations of Europe, and a prerequisite for its
future thereof.
The European Union
Most prominently, the Eastern enlargement of the European Union
provided an enabling condition for the institutionalization of a moral
assessment of the communist legacy. Since the 2005 European Parliament (EP)
resolution, The Future of Europe Sixty Years after the Second World War, the
European Union has become an evocative arena for making parallel claims about
recognition of the substantive value of the largely East European encounters
with communism for the historical consciousness and “conscience” of the
European community, along with calls for a more abstract normative condemnation
of totalitarian regimes of different stripes.
The key milestones in this process include the European
Parliament's 2008 and 2009 hearings on crimes committed by totalitarian
communist regimes, the proclamation of August 23 as European Day of Remembrance
for Victims of Stalinism and Nazism in 2008, and a subsequent EP resolution
calling for the implementation of this day of commemoration (2009a). The
adjacent debates have been replete with calls to close the gap between the victims
of Nazism and communism and to remove the double standards applied to Nazi and
communist regimes. Indicative of the East European mnemonical
recognition-seeking in this venture, the resolution on European conscience and
totalitarianism (2009a) was tabled by mostly East European (Baltic, Polish,
Czech, Hungarian, and Romanian) representatives (the cosponsors also included
Belgian, German, and Swedish politicians). This resolution succeeded an earlier
Prague Declaration on European Conscience and Communism, adopted on June 3,
2008, after an eponymic international conference at the Czech Senate. The
Prague Declaration, in turn, resonated with the prior debates at PACE,
emphasizing the quintessential themes of Europeanizing the remembrance of the
criminality of communist regimes by underscoring the importance of the (right)
remembering of the past for shaping the (right) future; the impossibility of
European unification without the “reunification” of its history; and repeating
the common accusation about the unbalanced books of communism and Nazism. In
unprecedentedly strong and assertive language, the signatories, which included
Václav Havel, Joachim Gauck, Göran Lindblad, and Vytautas Landsbergis, among
others, called for the “recognition of communism as an integral and horrific
part of Europe's common history,” as well as “European and international
pressure for effective condemnation of the past communist crimes and for
efficient fight against ongoing communist crimes” (Prague Declaration on
European Conscience and Communism 2008:para. 6).
The EU-wide campaign for the condemnation of the
totalitarian communist legacy is likewise underpinned by the assumption that
Europe cannot be united as long as West and East do not agree on a common
understanding of the shared history of communism and Nazism (Pleštinská;
Romagnoli in the European Parliament 2009c). Allegedly, it is the mental and
spiritual enlargement of the European Union that is at stake here, “the
enlargement of European awareness of the massive crimes against humanity,” and
“the integration of European historic perception… of prejudices and different
views of history” (Kelam in European Parliament 2009b; cf. Figel calling for
“an expansion of awareness, an expansion of memory and an expansion of respect
and responsibility” ibid.).
Demands for concrete legal implications in the struggle for
pan-European condemnation of totalitarian communist regimes are increasingly
expressed through looser transnational formats, particularly after the
unsuccessful East European appeal on broadening the coverage of the European
Council (2008) on combating racism and xenophobia. The Declaration on Crimes of
Communism (2010), the signatories to which range from politicians to former
political prisoners and current human rights advocates, is an emblematic
illustration of this trend. The Platform of European Memory and Conscience,
established in Prague in 2011 in order to provide an umbrella institution for
organizations dealing with research, documentation, awareness raising, and
education about totalitarian regimes in twentieth-century Europe, is yet
another. Reflecting its predominantly East European origins, the Platform
currently embraces relevant institutions from Bulgaria, Canada, the Czech
Republic, Estonia, Germany, Hungary, Iceland, Latvia, Lithuania, Moldova,
Netherlands, Poland, Romania, Slovakia, Slovenia, Sweden, Ukraine, and the
United States. The creation of a supranational judicial body for the legal
settlement of communist crimes remains high on the Platform's political agenda,
punctuating the shifting accent of the campaign from historical to criminal
justice, or from a general condemnation of totalitarian communist regimes to a
more concretely defined recognition-seeking with tangible legal implications.
The Declaration on Crimes of Communism (2010) accordingly
called for the establishment of a new international court, with a seat within
the European Union, for the condemnation of crimes of communism “in a similar
way as the Nazi crimes [and] the crimes committed in former Yugoslavia… were
condemned and sentenced,” (para. 4) for leaving the crimes of communism
unpunished would mean “disregard of and thus weakening of international law”
(para. 5). While the declaration emphasized that communism needs to be condemned
in a similar way to Nazism, the signatories pointed out that they were
nonetheless “not equating the respective crimes of Nazism and communism” which
“should each be studied and judged on their own terrible merits” (para. 7).
They did highlight explicitly, however, that “[c]ommunist ideology and
communist rule contradict the European Convention of Human Rights and the
Charter of Fundamental Rights of the EU” (ibid.). Calling upon the European
Commission and European Council of Justice and Home Affairs to adopt a
Framework Decision introducing a pan-European ban on excusing, denying, or
trivializing the crimes of communism, the underlying message of the Declaration
highlighted how the fulfillment of this ambition would crown the transnational
endeavor to equalize the juridified remembrance of the two main totalitarian
legacies in Europe.
Conclusion
A genealogical approach contains some useful pointers toward
an international political sociology of the emerging European remembrance of
totalitarian communism. The transnational in this struggle remains to be
adequately populated in future research. An inquiry into the sources and
meanings of the nascent pan-European remembrance of totalitarian communist
regimes has underscored recognition-seeking, the struggle for mnemonical
hegemony, contingency, and resistance in the operation of this moral discourse.
The argument I have made here is that the shifting dynamics
in contestation of the normative condemnation of the communist legacy in
Europe—from earlier PACE debates to recent efforts to extend the European
Union's legal coverage to criminalize the denial of totalitarian communist
crimes—are indicative of the changing edifice of the European response to its
twentieth-century encounters with totalitarianism. The discursive linkage of
communist regimes with criminality has enabled the reinforcement of their moral
illegitimacy and incompatibility with “European values.” While the flow of
political declarations by various European organizations supporting the condemnation
of totalitarian communist regimes has been quite noteworthy, the legal score
card of institutionalizing the denouncement of communist regimes has
nonetheless remained rather checkered. The attempted Europeanization of the
condemnation of totalitarian communist regimes has remained politically
contentious. Yet, the gradual consolidation of a broadly anti-totalitarian
stance as an important part of “European memory” of the twentieth century has
left the Russian Federation among the few active resisters of this frame.
As moral universalism, postnationalist aspirations, and a
legalizing drive continue to inform the largely East European-led efforts
toward a pan-European condemnation of totalitarian communist regimes, the
conceptual mold of mnemonical cosmopolitanization remains useful for
understanding the process of subjecting national memories of communism to a
common remembrance patterning (see Levy and Sznaider 2007:160). The emerging
discourse owes much to the concerted efforts of various East European actors to
increase public awareness and endorse condemnation of the crimes of communist
regimes.
The ongoing argument over the place that the communist
legacy should occupy in Europeans' collective sense of themselves is reflective
of the wider politics of recognition for making East European experiences part
of a shared mnemonic inventory of the enlarged European community. The European
Union, in particular, has become “a recognition order” of sorts (Closa
2010a:17). The transnational mnemopolitics of condemning communist regimes in
Europe illustrates the mutual constitution of particular attachments and
cosmopolitan orientations (cf. Levy et al. 2011:140). As such, it constitutes a
good site for a genealogical reflection, highlighting the jolted emergence of a
pan-European remembrance of communist regimes as indictment.
Footnotes
↵This research was funded by the European Union through
the European Social Fund's Mobilitas post-doctoral fellowship, and HERA Memory
at War project. I am grateful to the MAW project members at Cambridge, Alex
Astrov, Tarak Barkawi, Duncan Bell, Jenny Edkins, Toomas Hiio, Lauri Mälksoo,
Lutz Niethammer, Eva-Clarita Pettai, and the three anonymous reviewers for
comments on draft versions of this article.
European Union
HERA
↵Lithuania, Latvia, Bulgaria, Hungary, Romania, and the
Czech Republic.
↵Many critics regard the epithet “totalitarian” as a
hypocritical, if necessary, nod toward soothing the Euro-communists, since
Europe is allegedly yet to know a non-totalitarian communist regime. This is
well reflected in the debates analyzed in this article, which frequently argue
for the ontological criminality of communism as a house of political thought,
rather than seeking to determine the degree of repressiveness contingent to actual
communist regimes.
↵While the calls to acknowledge and condemn the criminal
legacy of communism occasionally embrace a global audience (aiming at China in
particular), these initiatives are beyond the scope of this paper.
↵The interpretations of the paper draw on Foucaultian
discourse analysis which takes discourses not only to contain linguistic
expressions, but also to generate modes of power and exclusion, thus
emphasizing the relationship between the formation of discursive practices and
wider processes of social and cultural change.
↵The intertwining of remembrances of WWII and the
communist legacy is characteristically manifested in discourses criticizing the
pan-European condemnation of totalitarian communist regimes as the undertaking
of “the losers of the Second World War” (Guerreiro in European Parliament
debate 2009c).
↵See eureconciliation.wordpress.com/about/. (Accessed
August 5, 2013.)
↵As reflected in the exchanges of fervently anti- and
pro-communist arguments in PACE by the representatives of a single ex-communist
country (the Czech Republic's Němcová and Konečná). Another example is provided
by the activities of Dovid, Katz, a Yiddish scholar based in Lithuania, against
the purported “Holocaust obfuscation” accompanying the movement seeking
pan-European condemnation of communist crimes.
↵Against this backdrop, it is noteworthy that The
International Holocaust Remembrance Alliance (formerly the Task Force for
International Cooperation on Holocaust Education, Remembrance, and Research)
has recently established a specialized committee to address “comparative
genocide.”
↵Critics have pointed to the alleged abuse of this lever
by the European People's Party (EPP) against its left-wing political opponents
in the European Parliament.
↵The result—as the founding document of the Platform of
European Memory and Conscience evocatively shows—is a curious mix of both
claims. While the underlying rationale for the Platform is indeed the
comparability and equivalence of Nazi and communist crimes, a nod to the core
narrative informing the hierarchical remembrance of twentieth-century
totalitarianisms is nonetheless made at the very beginning of the establishing
agreement by taking dutiful notice of “the exceptionality and uniqueness of
Holocaust.” See http://www.memoryandconscience.eu/wp-content/uploads/2011/12/Agreement-and-Statute-of-the-Platform1.pdf.
(Accessed August 5, 2013.)
↵Today, Göran Lindblad is the President of the Platform
of European Memory and Conscience.
↵See http://eureconciliation.wordpress.com/2010/05/18/a-pivotal-judgment-of-the-echr-no-impunity-for-perpetrators-of-war-crimes-sandra-kalniete-mep/.
(Accessed August 5, 2013.)
© 2014 International Studies Association
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