Memory “versus” free speech protections: competing human rights in an international court

• In Event: Sociology of Law Section Roundtables Session
  In Refereed Roundtable (60 minute): Sociology of Law Section Roundtables: Table 4 — Memory, History, and Law

Abstract

In recent decades, a nation’s attempts to deal with their own shameful past(s) have become an important fixture of legitimacy among democratic states. Amidst this political climate of accountability came an expectation for nation states to recognize past wrongs through official means like public apology as well as legal engagements like trials and tribunals. Courtroom decisions concerning historical atrocities like genocide shape their treatment and contribute to the larger collective memory of events: an especially important function given the weaponization of national memory around the world.

This paper probes the decision-making process of human rights courts with the European Court of Human Rights as its illustrative case, interrogating rights tensions (the protection of victim dignity vs. free speech) as they relate to democracy. Via qualitative content analysis of publicly available jurisprudence, I analyze cases in which claimants argue their right to free speech was violated by national rulings under genocide denial laws.

In addition to examining theoretical questions of law and morality at the macro level of atrocity crimes, of primary concern is the court’s application of a number of legal doctrines and language situating memory protections in relation to democracy. These include (1) the “margin of appreciation”: a legal doctrine that determines the scope of a nation’s obligation to enforce human rights standards based on its specific historical context, and–crucially–how this overlaps with the court’s leeway for a given state to decide what is “necessary in a democratic society”; and (2) its use of the label “established historical fact” to describe particular events. How does the court define this classification, how is it applied, and is it applied differently to different events? I argue based on initial research that the (purposefully) vague and often selective applications of these doctrines bears important implications for comparative atrocity research.

Author

• Danielle Lucksted, Stony Brook University