International Journal of Transitional Justice, 2018, 0, 1–16

doi: 10.1093/ijtj/ijy014
Article

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The Thin Line between Transitional Justice and
Memory Activism: The Case of the German and
British ‘Pardons’ for Convicted Homosexuals
Paolo Caroli*

A BS TR A C T
In 2017 the British and German parliaments adopted laws in order to pardon those
convicted when homosexuality was criminalized. This article compares the two laws
and the respective social and legal contexts in which each was adopted, highlighting
their peculiarities. Thereafter, the two laws are categorized by discussing two working
hypotheses. The first considers them as reparatory measures of transitional justice.
The second associates them with various private or social ventures, very different in
content, motivations and impact. The hypothesis is that behind these initiatives a com-
mon implicit attitude may be perceived: a desire to amend the past in the light of cur-
rent values. Finally, some sceptical thoughts about the future are presented, related to
the possibility that these laws may constitute the beginning of a new legislative trend
aimed at removing the effects of past criminal trials.
K E Y W O R D S : memory activism, presentism, posthumous pardon, homosexuality,
amnesty

I N TRO D UC T IO N
In 2017, the British parliament adopted the so-called Alan Turing Law,1 effectively
an amnesty law for those convicted under the offence of ‘buggery,’ which punished
homosexual intercourse until 1967.2 In the same year, the German parliament
adopted a law that provides for the rehabilitation of homosexuals convicted in the
Federal Republic of Germany (Bundesrepublik Deutschland, or BRD) after 8 May
1945 in paragraph 175 of the German Criminal Code (StGB), which was abolished
in 1994.3

* Postdoctoral M.E.L.A. Researcher, Alma Mater Studiorum Università di Bologna. Email: paolo.caroli@
unibo.it
1 It is included in the Policing and Crime Act 2017 of the UK parliament, which received the Royal Assent
on 31 January 2017. It applies in England and Wales. See, http://www.legislation.gov.uk/ukpga/2017/3/
contents/enacted (accessed 4 July 2018).
2 For the content and evolution of this offence, see, infra n 5. Homosexuality was legalized in England and
Wales in 1967; the rest of the UK and the Commonwealth followed in the 1980s and early 1990s.
3 Bundesministerium der Justiz und für Verbraucherschutz, ‘Gesetz zur strafrechtlichen Rehabilitierung der
nach dem 8. Mai 1945 wegen einvernehmlicher homosexueller Handlungen verurteilten Personen und zur

C The Author(s) (2018). Published by Oxford University Press. All rights reserved.
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2  P. Caroli

This article compares the two laws and the respective social and legal contexts in
which each was adopted, highlighting their peculiarities and anomalies with respect
to other clemency measures. After a brief description, the article categorizes the two

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legal interventions by discussing two working hypotheses.
The first hypothesis considers these 2017 laws as mechanisms of – as it is defined –
‘transitional justice,’ which would qualify them as reparatory measures within a wider
range of instruments geared towards the transition to a more democratic and tolerant
society.
The second hypothesis departs from a different perspective. It associates both
laws with various private ventures or social phenomena, very different in content,
motivations and impact from reparatory measures. The working hypothesis is that
behind all these different initiatives, a common implicit attitude towards the past
may be perceived, that is, a desire to amend the past and its traces in the light of
contemporary values. Such an attitude seems connected with so-called ‘memory
activism,’4 a growing phenomenon aimed at amending the collective memory and
using it to affirm certain values of the present, in view of the future. In order to better
understand such an evolution of historical memory, the article proposes a parallel
with the uses and abuses of historical memory in the legislative measures of the
2000s, particularly in the context of the Holocaust.
Finally, some sceptical thoughts about the future are presented. They do not dir-
ectly refer to the two 2017 laws, but to the possibility (not yet confirmed in practice)
that these may constitute the beginning of a new legislative trend aimed at removing
the effects of criminal trials that took place decades or centuries ago. These thoughts
highlight the risks of fragmenting memory and of using the past as one would a sac-
ralized moral book.
Before venturing into the analysis, a caveat is in order. This article in no way
intends to discuss the content or merit of such legislative interventions and the moti-
vations that inspired them. Rather, it merely aims to analyze them systematically.
When criticism or perplexity is expressed, it refers only to the means chosen, that is,
the law or the trial.

‘ AL A N TU RI NG LA W ’
The so-called Turing Law is effectively an amnesty law (very rare in common law)
for the benefit of those convicted under the offence of ‘buggery.’5 This punished anal
penetration and bestiality after the passage of the Buggery Act, issued in 1533 under
the reign of Henry VIII. In 1885, however, the so-called Labouchere Amendment6
extended the punishable acts to all forms of ‘gross indecency’ in order to include all
sorts of homosexual intercourse, even if nonpenetrative. Homosexuality became legal
Änderung des Einkommensteuergesetzes,’ https://www.bmjv.de/SharedDocs/Gesetzgebungsverfahren/
DE/Rehabilitierung_175.html (accessed 4 July 2018). This issue is discussed further later in the article.
4 On the concept of memory activism, among recent publications, see, Yifat Gutman, Memory Activism:
Reimagining the Past for the Future in Israel–Palestine (Nashville, TN: Vanderbilt University Press, 2017);
Janine Holc, The Politics of Trauma and Memory Activism: Polish–Jewish Relations Today (London: Palgrave
Macmillan, 2017).
5 In English, the terms ‘buggery’ and ‘sodomy’ are often used interchangeably and both refer to anal inter-
course. Nonetheless, ‘buggery’ as a common law offence encompasses both sodomy and bestiality.
6 Section 11 of the Criminal Law Amendment Act 1885.
 The Thin Line between Transitional Justice and Memory Activism  3

in England and Wales in 1967, while the remaining parts of the UK and the
Commonwealth followed between the 1980s and early 1990s.
The adoption of the 2017 law was preceded by a social and media mobilization,

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centred on the figure of Alan Turing, a brilliant scientist who decoded the Nazi ciphers
during the Second World War and invented a prototype of the modern computer.
After his conviction for ‘gross indecency’ in 1952, he lost his job and had to undergo
compulsory oestrogen-based treatment designed to reduce libido, which rendered him
impotent. Finding this intolerable, Turing took his life in 1954 by poisoning an apple
which he then ate. He was granted a posthumous individual pardon by the queen in
2013. However, for reasons of fairness, many asked for a collective clemency measure.
An initial proposal by the David Cameron government in 2012 provided only for the
possibility, for those still alive, to file an application to have these offences disregarded
during criminal record checks.7 The Labour Party’s proposal of an amnesty law, pre-
sented by Ed Miliband,8 was supported by both Cameron and Theresa May.
Collective clemency is a rare measure in common law, especially in the UK.9 This
particular measure seems to be comparable to that which civil lawyers call ‘clemency
for the purpose of justice’ (in the face of a changed social assessment on the criminal
conduct, ex post).10 However, it is normally based on the fact that the variation of
such a social assessment should not be permanent, but linked to a context that is ex-
ceptional and closed in time, determined by exceptional and unpredictable factors,
unless the amnesty accompanies legislative reform in order to anticipate its effects
retroactively.11 Clemency, as provided for in the Turing Law, does not apply to per-
sons who are still serving a sentence that now appears unjust, solely on the basis of
the increased social acceptability of the conduct for which the sentence was imposed.
Moreover, both the reference to Turing and the passage from Cameron’s to
Miliband’s proposals clarify that the intent of the provision does not seem to refer
(only) to the few convicted persons still alive. On the contrary, the aim seems rather to
posthumously ‘absolve’ (in a broad sense) those – many more – who were convicted
in the past.12 These interventions to remove criminal convictions for deceased people

7 Thomas Penny, ‘Cameron Pledges Pardons for “Outdated” U.K. Gay-Sex Convictions,’ Bloomberg, 14
April 2015, https://www.bloomberg.com/news/articles/2015-04-14/cameron-pledges-pardons-for-out
dated-u-k-gay-sex-convictions (accessed 4 July 2018).
8 Matthew Holehouse, ‘Ed Miliband Proposes “Turing’s Law” to “Pardon” Convicted Gay Men,’ Telegraph,
3 March 2015, http://www.telegraph.co.uk/news/politics/ed-miliband/11446543/Ed-Miliband-pro
poses-Turings-Law-to-pardon-convicted-gay-men.html (accessed 4 July 2018).
9 Lorenzo Pasculli, ‘Gli istituti della clemenza nel common law,’ Diritto Penale XXI Secolo 1/18
(forthcoming).
10 In the Italian scholarship, see, Gustavo Zagrebelsky, Amnistia, indulto e grazia: Profili costituzionali
(Milano: Giuffrè, 1974); Vincenzo Maiello, Clemenza e sistema penale (Napoli: Edizioni Scientifiche
Italiane, 2007). In the German scholarship, see, Klaus Marxen, Rechtliche Grenzen der Amnestie
(Heidelberg: Müller, 1984).
11 See, Nicola Mazzacuva, Il principio di difesa sociale e i provvedimenti di clemenza. Profili di politica criminale
e materiali per una ricerca storica (Bologna: Lorenzini, 1983).
12 A source at the Ministry of Justice confirmed that Oscar Wilde, the playwright and poet, was among
more than 50,000 gay men posthumously pardoned. However, the issue is still under debate, because his
conviction might also refer to homosexual intercourse with boys under the age of 16. See, Kate McCann,
‘Turing’s Law: Oscar Wilde among 50,000 Convicted Gay Men Granted Posthumous Pardons,’
Telegraph, 31 January 2017, http://www.telegraph.co.uk/news/2017/01/31/turings-law-thousands-con
victed-gay-bisexual-men-receive-posthumous/; Owen Bowcott, ‘Posthumous Pardons Law May See
4  P. Caroli

seem anomalous, since clemency, like criminal trials, usually concern the living. In
terms of criminal trials, an exception is the Inquisition trials of the dead.13

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GERMAN ANNULMENT OF THE CONVICTIONS
Section 175 of the StGB was introduced in 1871 in order to punish ‘fornication that
goes against nature,’ which was interpreted as fornication between men or between
humans and animals. However, in 1935, the Nazi regime turned it from a Vergehen
(a minor criminal offence, punished less severely) into a Verbrechen (an offence of
high seriousness),14 also extending the punishment to nonpenetrative acts.
According to the jurisprudence, the crime could be perpetrated by conduct
objectively considered offensive to the general sense of decency or conduct that
made evident the corrupt intention to excite sexual desire in other men. This led to
about 8,000 annual convictions, with the possibility of preventive detention by the
Gestapo as well as of an additional ‘reeducation’ in the concentration camps. The
numbers of the so-called ‘Homocaust’ are not unequivocally established; the esti-
mated number of victims ranges from 10,000 to 600,000.
The German Democratic Republic amended the Nazi provision in 1950 by limit-
ing it to cases of homosexual intercourse with minors, and then fully abolished it in
1968. Nonetheless, after World War Two the jurisprudence had already established
the nonadmissibility of the proceeding when the conduct did not constitute a threat
to socialist society. Thus, the provision became dormant. The BRD, too, amended
the provision in 1969 by limiting it to cases of homosexual intercourse with minors,
and then, in 1973, reverting to the original limitation only to penetrative sex. The of-
fence was finally repealed in 1994.
Germany has undertaken a process, unparalleled in other countries, of elaborating
its national–socialist past.15 While that process was certainly long, starting from the
complex legacy of the Nuremberg trials, a turning point can be noticed when the first
postwar generation started questioning their parents’ burden of responsibilities. This
process is marked by moments of social, political and cultural confrontation, such as
the Frankfurt Auschwitz trials (1963–1965); the so-called Warschauer Kniefall
(Warsaw genuflection) by Willy Brandt in 1970; the airing of the television series
Holocaust,16 directed by Marvin J. Chomsky, in 1979; the debate, in 1986, between

Oscar Wilde Exonerated,’ Guardian, 20 October 2016, https://www.theguardian.com/culture/2016/oct/

20/posthumous-pardons-law-may-see-oscar-wilde-exonerated (both accessed 4 July 2018).
13 David S. Katz, ‘Reviewed Work: The Expulsion of the Jews. 1492 and after by Raymond B. Waddington
and Arthur H. Williamson,’ English Historical Review 112(445) (1997): 182.
14 The distinction somewhat resembles the common law division into misdemeanours and felonies.
15 In the vast literature on the German Vergangenheitsbewältigung, see, from different scientific perspectives,
Wulf Kansteiner, In Pursuit of German Memory: History, Television and Politics after Auschwitz (Athens,
OH: Ohio University Press, 2006); Günther Anders, ‘Nach “Holocaust” 1979,’ in Besuch im Hades:
Auschwitz und Breslau 1966, by Günther Anders (München: Beck, 1997); Annette Weinke, Gewalt,
Geschichte, Gerechtigkeit: Transnationale Debatten über deutsche Staatsverbrechen im 20. Jahrhundert
(Göttingen: Wallstein, 2016). See also, David Rieff, In Praise of Forgetting: Historical Memory and Its
Ironies (New Haven, CT: Yale University Press, 2016).
16 On the topic, see, Anders, supra n 15; Emiliano Perra, ‘Narratives of Innocence and Victimhood: The
Reception of the Miniseries “Holocaust” in Italy,’ Holocaust and Genocide Studies 22(3) (2008): 411–440.
 The Thin Line between Transitional Justice and Memory Activism  5

Jürgen Habermas and Ernst Nolte; Chancellor Gerhard Schröder’s participation in

the celebrations for the 60th anniversary of D-Day in 2004; and, finally, the inaugur-
ation of several memorials in Berlin, in particular the Denkmal für die ermordeten
Juden Europas17 in memory of Jewish victims, designed by Peter Eisenman and

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inaugurated in 2005, after a 10-year debate.
Although such a lengthy and profound collective confrontation with past respon-
sibilities remains unique, this process, with the exception of the most recent years,
was also marked by ‘denial and disregard, most notably with respect to the so-called
forgotten victims. . .deliberately excluded from reparation.’18 In particular, Article
1(1) of the Federal Compensation Law of 1953 (Bundesentschädigungsgesetz),

Clearly and conclusively defined who was to be considered a victim of Nazi

persecution, namely someone who had been persecuted for ‘racial, religious,
and political reasons or because of the victim’s world view.’19

The German legislator reiterated the so-called formula of the 1943 Bermuda
Conference (which referred to the persecution of national, ethnic and religious
minorities) and included persecution for political reasons. It has been stated that this

Has remained the dominant frame in West German post-war reparations until
now. . .Other lines of power and domination such as gender, sexual orienta-
tion, class, or notions of normality and fitness rarely formed the focus of transi-
tional justice.20

It is worth noting, for example, that denial of the Nazis’ forced sterilization or ‘eu-
thanasia’ policies, which targeted disabled people, is not punishable under the provi-
sion of the German criminal code that criminalizes denialism.21
The issue of the ‘forgotten victims’ began to emerge only in the 1990s, especially
in relation to homosexual victims. An explanation for that may be found not only in
the changed perception regarding homosexuality in society, but also in the fact that,

In the cases of ‘euthanasia’, coercive sterilization, and the persecution of people

deemed as ‘asocial’, there was no such thing as a shared collective identity
among the victims, at least not one that predated the persecution.22

17 On this monument, see, Enzo Traverso, Il passato: istruzioni per l’uso. Storia, memoria, politica (Verona:
Ombre Corte, 2006); Eric Heinze, ‘Historical Memory Is Not about Victims – It’s about Us,’ Open
Democracy, 27 January 2016, https://www.opendemocracy.net/can-europe-make-it/eric-heinze/historic
al-memory-is-not-about-victims-it-s-about-us (accessed 4 July 2018). See also the considerations of Tony
Judt, as reported in Rieff, supra n 15.
18 Kathrin Braun, ‘Transitional Justice, Political Temporality and the Injuries of Normality,’ IPW Working
Paper 1 (2017), 16.
19 Ibid., 17.
20 Ibid.
21 This is affirmed in Emanuela Fronza, Memory and Punishment: Historical Denialism, Free Speech and the
Limits of Criminal Law (The Hague: Asser, 2018).
22 Braun, supra n 18 at 28.
6  P. Caroli

Therefore, afterwards, there was no identified group that could execute the claims
for reparation. For homosexuals, the situation is different. The latter not only repre-
sented a community even before the persecutions, but they consolidated and

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organized their collective identity in the following decades, in particular in the phase
of the LGBT (lesbian, gay, bisexual, transgender) post-Stonewall movements.23 In
2002, the German legislator amended the 1998 law of annulment of the unjust
judgements of national socialism by extending it to encompass the convictions under
Section 175 of the StGB in the Nazi era (from 1935 to 1945),24 and accompanying
this reform with an official apology made by parliament for maintaining in force the
Nazi norm even under the Republican regime. In 2008, an official monument for
homosexual victims was inaugurated in Berlin. The monument refers to homosexuals
in general, although the inclusion of lesbians was hotly debated.25 The monument
was followed in 2012 by one dedicated to the Sinti and Roma communities, and
then in 2014 by one commemorating the victims of Nazi euthanasia. Germany has
recently begun a new judicial phase against those who worked in the extermination
camps and are still alive, but who were never indicted because their respective roles
were previously considered collateral and not directly linked to the extermination.
The 2017 law’s rehabilitation for homosexuals, which also provides for compensation
for those still alive, may be seen as completing the remedial measures for
homosexuals.

APOLOGIES AND AMENDATIONS AS A NEW POLITICAL HORIZON

OF TRANSITIONAL JUSTICE
The laws passed in the UK and Germany in 2017 cannot be considered ordinary
clemency measures. As noted, they are anomalous because they intervene on judg-
ments rendered in trials that took place decades ago, and because the vast majority
of the recipients of clemency are already dead. Therefore, it should be considered
whether these measures can be included among those mechanisms that we label
‘transitional justice.’
Of course, the definition of ‘transitional justice’ is highly relevant.26 It is no longer
considered an alternative to criminal prosecution for societies undergoing a

23 Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End (New York: New York
University Press, 1995).
24 ‘Gesetz zur Änderung des Gesetzes zur Aufhebung nationalsozialistischer Unrechtsurteile in der
Strafrechtspflege,’ https://www.bgbl.de/xaver/bgbl/start.xav?startbk¼Bundesanzeiger_BGBl&jumpTo¼
bgbl102s2714.pdf#__bgbl__%2F%2F*%5B%40attr_id%3D%27bgbl102s2714.pdf%27%5D__151456221
1159 (accessed 4 July 2018).
25 Lesbianism was not criminalized. This was not based on tolerance, but because of the general invisibility
of the phenomenon. See, ‘Lesbians and the Third Reich,’ https://www.ushmm.org/wlc/en/article.php?
ModuleId¼10005478 (accessed 4 July 2018). Nevertheless, in the Nazi era many unmarried and childless
women (lesbians among them) were deemed ‘asocials.’ For the debated role of lesbians within the com-
memoration of gay victims of Nazi persecution, see, Christiane Wilke, ‘Remembering Complexity?
Memorials for Nazi Victims in Berlin,’ International Journal of Transitional Justice 7(1) (2013): 136–156.
26 The literature on transitional justice is too vast to be summarized. For the main examples, from the point
of view of historians, see, Jon Elster, Closing the Books: Transitional Justice in Historical Perspective
(Cambridge: Cambridge University Press, 2004). From a legal perspective, see, Neil J. Kritz, ed.,
Transitional Justice: How Emerging Democracies Reckon with Former Regimes (Washington, DC: US
Institute of Peace Press, 1995); Kai Ambos, ‘The Legal Framework of Transitional Justice: A Systematic
 The Thin Line between Transitional Justice and Memory Activism  7

postconflict or postdictatorial political transition.27 On the contrary, such a concep-

tion would be considered outdated. It would be more accurate to affirm that, in the
21st century, transitional justice is no longer an exceptional instrument, given that it

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provides a series of mechanisms addressing structural problems related to economics
or the environment, becoming ‘an enduring feature of political liberalization.’28 This
greatly expands the notion of transitional justice, which has become much more
nuanced, given that it includes

Anything that a society devises to deal with a legacy of conflict and/or wide-
spread human rights violations, from changes in criminal codes to those in
high school textbooks, from creation of memorials, museums and days of
mourning, to police and court reform, to tackling the distributional inequities
that underlie conflict.29

This becomes clear above all in the new holistic approaches to transitional justice.
They go beyond mechanisms of criminal prosecution, truth disclosure or reparation
and include commemorative practices, educational reforms, reconciliation initiatives
and more. Holistic models such as the ‘ecological model of social reconstruction’30
broaden their spectrum of intervention, including education in democracy and eco-
nomic development policies, as part of a general social and political process that
includes both official top-down mechanisms and local and spontaneous initiatives
aimed at interrelation.
Suddenly, transitional justice is not an ‘exotic’ phenomenon; it is not considered
an entity in relation to, for example, distant African or South American countries.
Transitional justice and its arsenal of mechanisms have turned into a field of practical
and political intervention in everyday society. As has been noted, transitional justice
has become a ‘political project.’31 Could this project also include the two laws

Study with a Special Focus on the Role of the ICC,’ in Building a Future on Peace and Justice: Studies on
Transitional Justice, Peace and Development, ed. Kai Ambos, Judith Large and Marieke Wierda (Berlin:
Springer, 2009); Ruti G. Teitel, Globalizing Transitional Justice: Contemporary Essays (Oxford: Oxford
University Press, 2014); Naomi Roht-Arriaza and Javier Mariezcurrena, eds., Transitional Justice in the
Twenty-First Century: Beyond Truth versus Justice (Cambridge: Cambridge University Press, 2006); Paul
Gready, The Era of Transitional Justice: The Aftermath of the Truth and Reconciliation Commission in South
Africa and beyond (Abingdon: Routledge, 2011); Luc Huyse, ‘Justice after Transition: On the Choices
Successor Elites Make in Dealing with the Past,’ Law and Social Inquiry 20(2) (1995): 51–78; Christine
Bell, ‘The “New Law” of Transitional Justice,’ in Building a Future on Peace and Justice: Studies on
Transitional Justice, Peace and Development, ed. Kai Ambos, Judith Large and Marieke Wierda (Berlin:
Springer, 2009); Christine Bell, ‘Transitional Justice, Interdisciplinarity and the State of the “Field” or
“Non-Field”,’ International Journal of Transitional Justice 3(1) (2009): 5–27; Colleen Murphy, The
Conceptual Foundations of Transitional Justice (Cambridge: Cambridge University Press, 2017); Gabriele
Fornasari, Giustizia di transizione e diritto penale (Torino: Giappichelli, 2013).
27 See, Gready, supra n 26.
28 Teitel, supra n 26 at 111.
29 Naomi Roht-Arriaza, ‘The New Landscape of Transitional Justice,’ in Roht-Arriaza and Mariezcurrena,
supra n 26 at 2.
30 Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of
Justice to Reconciliation,’ Human Rights Quarterly 24(3) (2002): 580.
31 Braun, supra n 18 at 7. Braun actually uses the stronger expression ‘hegemonic political project’; the exist-
ence of such hegemony is not discussed in this article.
8  P. Caroli

adopted in 2017 in Germany and the UK, respectively? If we look at the recent pro-
liferation of public apologies for crimes very distant in time and other reparatory and
commemorative measures, the answer must surely be in the positive. The two laws
could be a part of what scholars have called the ‘politics of regret’32 or the ‘age of

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apology,’33 presented as a new horizon in transitional justice. Surely the two 2017
laws may be read through the lens of transitional justice, despite the fact that they do
not directly refer to a transition from a dictatorial regime to a democracy (although
the German provision is a legacy of national socialism). They have been adopted by
two European democracies that have come to terms with their respective pasts. The
laws provide victims with symbolic recognition. Heiko Maas, the German justice
minister who proposed and supported the law, spoke of a ‘belated act of justice’34
and added that ‘a Rechtsstaat [legal state] should also have the strength to correct its
own mistakes.’35
Nevertheless, the following pages demonstrate that another perspective is pos-
sible, by associating the two laws with the phenomenon of memory activism. The
connection with memory activism does not automatically exclude the link with tran-
sitional justice. As the notion of transitional justice has become more nuanced, it is
not uncommon for the political programme of transitional justice to meet the agenda
of that social activism which aims at intervening in collective memory.36 The two
phenomena are so closely interrelated that it may be difficult to distinguish them, as
‘transitional justice. . .is deeply involved with the ethics of memory.’37 One may also
disagree with the assumption that transitional justice and memory activism represent
two different phenomena. In contrast, memory activism may be considered an evolu-
tion of transitional justice, after the ages of criminal prosecution/civil litigation and
reconciliation.38

32 Jeffrey K. Olick, The Politics of Regret: On Collective Memory and Historical Responsibility (Abingdon:
Routledge, 2013).
33 Roy L. Brooks, ‘The Age of Apology,’ in When Sorry Isn’t Enough: The Controversy over Apologies and
Reparations for Human Injustice, ed. Roy L. Brooks (New York: New York University Press, 1999).
34 ‘Schwule werden mit neuem Gesetz rehabilitiert,’ Zeit Online, 22 June 2017, http://www.zeit.de/politik/
deutschland/2017-06/homosexualitaet-bundestag-gesetz-rehabilitiert (accessed 4 July 2018).
35 ‘Maas will verurteilte Homosexuelle rehabilitieren,’ Zeit Online, 13 September 2016, http://www.zeit.de/
politik/deutschland/2016-09/heiko-maas-homosexualitaet-gesetzesentwurf-rehabilitation (accessed 4 July
2018).
36 The concept of collective memory was initially developed at the beginning of the 20th century by Hugo
von Hofmannsthal (‘super-individual memory’) and Aby Warburg (‘social memory’), and defined as such
for the first time in 1925 by Maurice Halbwachs. See, Frederick Whitling, ‘Damnatio Memoriae and the
Power of Remembrance: Reflections on Memory and History,’ in A European Memory? Contested
Histories and Politics of Remembrance, ed. Małgorzata Pakier and Bo Stråth (Oxford: Berghahn Books,
2010). In the words of the sociologist Lewis Coser, in Halbwachs’ view collective memory is a ‘recon-
struction of the past in the light of the present’ (cited in Rieff, supra n 15 at 23). The core of Halbwachs’
theory is the idea that collective memory is a social construct. For Jan and Aleida Assmann’s theory of
‘cultural memory,’ see, Heidemarie Uhl, ‘Culture, Politics, Palimpsest: Theses on Memory and Society,’
in A European Memory? Contested Histories and Politics of Remembrance, ed. Małgorzata Pakier and Bo
Stråth (Oxford: Berghahn Books, 2010). For the development of Halbwachs’ theories by Pierre Nora,
see, Kansteiner, supra n 15.
37 Avishai Margalit, The Ethics of Memory (Cambridge, MA: Harvard University Press, 2002), 12.
38 On the history of transitional justice, see, Teitel, supra n 26.
 The Thin Line between Transitional Justice and Memory Activism  9

AN ALTERNATIVE PERSPECTIVE: DENIAL OF HISTORY AS

EVOLUTION OF THE COMMEMORATIVE OBSESSION
Given the possibility of considering the two 2017 laws under examination as instru-

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ments of transitional justice, this section explores another perspective. It questions
whether there is a possible connection between these laws and other social phe-
nomena, mostly private initiatives and nonstate actions. The latter are very different
from the two laws in content, motives, success and impact. Nonetheless, all seem
to share a vision, probably implicit and apparently not expressly theorized, and
appear to reveal a current social trend: the attempt to eliminate signs of the past
when the past brings with it traces of behaviours deemed wrong on the basis of
modern values. Examples are found in colonialism, sexism and homophobia. To
cite only a few cases that have made headlines, consider the debate in the US over
the Confederate monuments, some of which have been vandalized or removed.39
There are others, such as the petition to remove a 1938 painting by Balthus from
the Metropolitan Museum in New York: it portrays a young girl that the painter’s
gaze depicts as provocative, indicating the artist’s supposed inclination towards
paedophilia.40 Another example is the debate around the 1951 poem by Eugen
Gomringer painted on the wall of the Alice Salomon Hochschule in Berlin. It is
considered an example of patriarchal art because it compares women to flowers
and therefore presents the former as mere objects of male admiration.41
Furthermore, the decision to ‘erase’ Kevin Spacey from Ridley Scott’s new film is
based on the newly emerging sensibility about sexual harassment in show business,
and aims at amending a past (since the film was already finished when the issue
became public) that is no longer deemed acceptable.42 A similar course of action
took place in Italy, with reference to director Fausto Brizzi.43 Think also of the
decision of the Teatro Maggio in Florence to amend the ending of the opera

39 Nicole Chavez, ‘These Are the Monuments Vandalized after Charlottesville,’ CNN, 22 August 2017,
http://edition.cnn.com/2017/08/18/us/monuments-memorials-vandalized-charlottesville/index.
html (accessed 4 July 2018).
40 Harriet Alexander, ‘New York’s Met Museum Refuses to Remove Balthus Painting Despite Petition
against Promoting Paedophilia,’ Telegraph, 6 December 2017, http://www.telegraph.co.uk/news/2017/
12/06/new-yorks-met-museum-refuses-remove-balthus-painting-despite/ (accessed 4 July 2018).
41 ‘Poem on Berlin College Wall Sparks Sexism Debate,’ DW, http://www.dw.com/en/poem-on-berlin-col
lege-wall-sparks-sexism-debate/a-40384180 (accessed 4 July 2018).
42 Ashley Collman, ‘Erased: How Ridley Scott and Sony Removed Kevin Spacey from New Film All the
Money in the World in Just Six Weeks – with Everyone Working around the Clock through
Thanksgiving to Pull off the Feat,’ Mail Online, 13 December 2017, http://www.dailymail.co.uk/news/art
icle-5175743/How-Ridley-Scott-removed-Kevin-Spacey-new-film.html (accessed 4 July 2018). This could
recall bad practices of damnatio memoriae. A relation between historical memory, morality and the ‘me
too’ movement is proposed by Gaetano Insolera, ‘Tempo, Memoria e Diritto Penale,’ Diritto penale con-
temporaneo, 19 March 2018.
43 Following sexual misconduct allegations, Warner Bros. decided to release Brizzi’s latest comedy, removing
his name from all promotional material including posters and trailers. See, Nick Vivarelli, ‘Warner Bros.
Axes Italian Director from Promotional Materials following Sexual Misconduct Allegations,’ Variety, 12
December 2016, http://variety.com/2017/film/global/warner-bros-removes-italian-director-from-promo
tional-materials-following-sexual-misconduct-allegations-1202624422/ (accessed 4 July 2018).
10  P. Caroli

Carmen, because the death of the heroine does not seem acceptable in light of the
emerging sensibility about so-called femicide.44
These are of course very different phenomena, definitely not to be confused with

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the two laws under examination. The cases differ widely, appearing contradictory
among themselves, and may be influenced by other factors. Nonetheless, they reveal,
more or less implicitly, a common attitude – one that seems to extend even beyond
presentism45 – as they not only judge the past in the context of the present, but also
amend, delete and generally censor the past in light of the values of the present, in
order to reaffirm them according to current public opinion. Practices of damnatio
memoriae46 are not new. Traditionally, they were decided and directed by the state
or at least by a higher authority such as the church. The new phenomenon seems to
be more spontaneous, growing within society from the bottom and spreading in a
way similar to that of fuzzy logic.
As explained, most of these initiatives are private. It could be asked whether the
two 2017 laws are an example of the contamination of state action by the private and
social levels. At this stage, this remains a mere hypothesis. The social evolution
described is still in fieri; the future will tell whether other similar laws will be adopted.
If such adoption were to happen, it would represent a new evolution of the ‘memory
legislation’47 that characterized in particular the European scenario at the turn of the
millennium. Thus, if the hypothesis were confirmed in practice, the question would
arise as to what we may read behind the very different phenomena described. It
should be asked what the annulment of past convictions for homosexuals and the
above-mentioned cases of damnatio memoriae have in common. Although each meas-
ure may have different means and be pursued with different motivations, all seem to
ignore the necessary perspectives of history. In other words, they tend to minimize
the historicization of historical events – their comprehension (let alone their justifica-
tion) within the complexity of their historical context.

44 Varsha Saraogi, ‘Opera “Carmen” Gets New Ending to Stop Violence against Women,’ Reuters, 3 January
2018, https://www.reuters.com/article/us-women-opera-carmen/opera-carmen-gets-new-ending-to-stop-
violence-against-women-idUSKBN1ES1Q6 (accessed 4 July 2018).
45 Reference is made here to the notion of presentism in historiography. See, Allan R. Buss, ‘In Defense of a
Critical–Presentist Historiography: The Fact–Theory Relationship and Marx’s Epistemology,’ Journal of
the History of the Behavioral Sciences 13(3) (1977): 252–260; François Hartog, Régimes d’historicité.
Présentisme et expériences du temps (Paris: Le Seuil, 2003).
46 See, Tzvetan Todorov, Les abus de la mémoire (Paris: Arléa, 1995). An example can be found in the
Soviet Union with the film The Fall of Berlin by Mikheil Chiaureli (USSR, 1950), which also featured
Lavrentiy Beria, head of the People’s Commissariat for Internal Affairs, or NKVD. After his execution,
Beria became a ‘nonperson’ and his scene was edited out of all available copies of the film. Cf. Richard
Taylor, Film Propaganda: Soviet Russia and Nazi Germany (London: I.B. Tauris, 1999). See also Slavoj
 izek’s point in the documentary The Pervert’s Guide to Ideology by Sophie Fiennes (UK, 2012).
Z
47 For an overview of memory laws, see, MELA: Memory Laws in European and Comparative Perspective,
‘Legal Database,’ http://melaproject.org/legal-database (accessed 5 July 2018). On this notion, see,
Uladzislau Belavusau and Aleksandra Gliszczy nska-Grabias, eds., Law and Memory: Towards Legal
Governance of History (Cambridge: Cambridge University Press, 2017). See, in particular, Eric Heinze,
‘Epilogue: Beyond “Memory Laws”: Towards a General Theory of Law and Historical Discourse,’ in
Belavusau and Gliszczy nska-Grabias, supra n 47 at 432, who affirms that the German law of 2017 ‘cannot
altogether, or at least non primarily, be recognised as a loi mémorielle, as it is not obviously adopted for a
specifically commemorative purpose,’ but he admits that it is a borderline case.
 The Thin Line between Transitional Justice and Memory Activism  11

This criticism is not new. It brings us back to the early 2000s when there were, on
the one hand, European policies related to the Holocaust and, on the other, an ex-
plosion of a phenomenon which scholars have called ‘malaise de la mémoire,’ ‘com-
memorative obsession,’48 ‘memory boom,’49 ‘industry of memory,’50 ‘obsession with

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the cult of memory’51 and ‘hyperthymesia.’52 The phenomenon extended beyond
Europe and has also involved a widespread diffusion of the use of the law in order to
intervene in historical memory.53 This happened at the legislative level (from the
laws establishing remembrance days to those criminalizing denialism), and also
through criminal trials (i.e. the Argentinean juicios por la verdad54 and the Inter-
American Court of Human Rights’ [IACtHR] affirmation of the ‘right to the truth’)
and civil trials (such as through ‘Holocaust litigation’).55 These issues are far too
complex to be comprehensively described here. Of course, it should not be forgotten
that those claims for memory also involved civil society; they were moved by worthy
motivation and not by mere political calculation. Nonetheless, the aim here is merely
to highlight that this phase was characterized by a tendency towards a commemora-
tive and victim-centric use of memory, which implies a detachment of memory from
the complexity of history. A memory of this nature does not imply comprehension,
discussion or a search for analogies with the present, but asks for empathy and com-
memoration. This led historians to point to bad memorial practices, using the expres-
sion ‘abuses of memory.’56 Although the practices of memory and of history
frequently overlap, in the early 2000s many historians strongly desired to distinguish
the concept of memory from that of history. A notorious statement affirms:

Memory perpetuates the past in the present, while history fixes it in a closed
temporal order, ordered and organized on the basis of rational procedures that
are at the antipodes of the sensibility of the lived experience. . .memory is al-
ways conjugated in present tense; the present determines its modalities: the se-
lection of the events that must be preserved, their interpretation, their ‘lessons’,
and so on. It turns into a political challenge and takes the form of an ‘ethical

48 Expressions of Henry Rousso and Enzo Traverso, cited in Fronza, supra n 21 at 21.
49 Małgorzata Pakier and Bo Stråth, ‘A European Memory?’ in A European Memory? Contested Histories and
Politics of Remembrance, ed. Małgorzata Pakier and Bo Stråth (Oxford: Berghahn Books, 2010), 9.
50 Javier Cercas, The Impostor, trans. Frank Wynne (London: MacLehose, 2017), 60; James Kaye, ‘Seeing
Dark and Writing Light: Photography Approaching Dark and Obscure Histories,’ in A European Memory?
Contested Histories and Politics of Remembrance, ed. Małgorzata Pakier and Bo Stråth (Oxford: Berghahn
Books, 2010). For the use of this expression by Pierre Nora, see, Rieff, supra n 15.
51 Expression used by Tzvetan Todorov, cited in Rieff, supra n 15 at 119.
52 Ibid., 120. In medicine, hyperthymesia is the condition of possessing an extremely detailed autobiograph-
ical memory.
53 See, Małgorzata Pakier and Bo Stråth, eds., A European Memory? Contested Histories and Politics of
Remembrance (Oxford: Berghahn Books, 2010).
54 In the vast literature, see, Elena Maculan and Daniel Pastor, El derecho a la verdad y su realización por
medio del proceso penal (Buenos Aires: Hammurabi, 2013).
55 See, Noah Vardi, ‘Privatizzazione dei contenziosi e risarcimento per illeciti storici. Il caso della Holocaust
Litigation,’ in Riparare, risarcire, ricordare. Un dialogo tra storici e giuristi, ed. Giorgio Resta and Vincenzo
Zeno-Zencovich (Napoli: Editoriale Scientifica, 2012); Leora Bilsky, ‘Transnational Holocaust Litigation,’
European Journal of International Law 23(2) (2012): 349–375.
56 Todorov, supra n 46, and, more recently and radically, Rieff, supra n 15.
12  P. Caroli

imperative’;. . .in short, memory, both individual and collective, is always a vi-
sion of the past filtered through the present.57

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In Europe, such memorial development was also political in its foundations, as it
was functional to the process of European integration. The Holocaust allowed us ‘to
link the present to the past, tried to act as a warning for the future, aimed at legitimis-
ing the European institutions more than the national bodies.’ It reached its apogee in
the ‘Holocaust Remembrance Day as a legitimizing symbol of the construction of a
unified Europe.’58 Thus, the Holocaust has become a form of storytelling of the
European Union (at the time) in formation, a narrative of Europe ex negativo, a
‘negative founding myth.’59 It was a social, political and cultural process, also deter-
mined by the end of the Cold War, and carried out through many stages. Among
them it is sufficient to mention the Stockholm International Forum on the
Holocaust in 2000 and its declaration; the celebrations for the 60th anniversary of
the opening of the Auschwitz gates in 2005;60 the European Parliament’s proclam-
ation in 2008 of 23 August as the European Day of Remembrance for Victims of
Stalinism and Nazism;61 and, most importantly, Council Framework Decision 2008/
913/JHA of 28 November 2008 on combating certain forms and expressions of ra-
cism and xenophobia by means of criminal law.62 Further confirmations of this path
are found in the declarations of the European bodies in the following years.63
The Council Framework Decision, which encourages the criminalization of deni-
alism, is particularly clear in terms of this tendency. I refer here to scholarship that
justifies the criminalization of denialism on the basis of the necessary defence of
those historical experiences that determine the shared values that constitute our soci-
eties from a historical and constitutional point of view, and which thus should not be
attacked.64 More than a criminalization of dissent, a criminalization of denialism

57 Traverso, supra n 17 at 15, 19 (translated by author). See also, Pierre Nora, ‘Entre mémoire et histoire.
La problématique des lieux,’ in Les lieux de mémoire, tome 1: La République, ed. Pierre Nora (Paris:
Gallimard, 1984); Henry Rousso, La hantise du passé (Paris: Textuel, 1998); Henry Rousso, Face au passé.
Essais sur la mémoire contemporaine (Paris: Belin, 2016).
58 Cf. Marco Bresciani, ‘La Giornata della Memoria è ormai storia,’ Ricerche di Storia Politica, 2016, http://
www.ricerchedistoriapolitica.it/tra-passato-e-presente/la-giornata-della-memoria-e-ormai-storia/ (accessed 28
January 2018).
59 Ibid., 36. See also, Cecilie Felicia Stokholm Banke, ‘Remembering Europe’s Heart of Darkness: Legacies
of the Holocaust in Post-War European Societies,’ in Pakier and Stråth, supra n 53.
60 For the European Union declaration of the same year, see, Klas-Göran Karlsson, ‘The Uses of History
and the Third Wave of Europeanisation,’ in Pakier and Stråth, supra n 53. Karlsson believes that the poli-
cies of remembrance constitute a ‘third wave’ of the process of European integration, after economic and
political integration; it is about cultural integration, which includes an amalgam of knowledge, attitudes
and values. In this perspective, the Shoah constitutes ‘the best example of canonization of history in the
name of the European dimension’ (Ibid., 40).
61 In 2012 the European Parliament also established the European Day of the Righteous, on 6 March.
62 See, Fronza, supra n 21.
63 See, Luca Baldissara, ‘Politiche della memoria e spazio del ricordo in Europa,’ Il Mulino 1 (2016): 6–20;
Uladzislau Belavusau and Aleksandra Gliszczy nska-Grabias, ‘Introduction,’ in Belavusau and Gliszczy nska-
Grabias, supra n 47.
64 See, Milosz Matuscheck, Erinnerungsstrafrecht (Berlin: Duncker & Humblot, 2012); Carlo Sotis, Il diritto
senza codice: uno studio sul sistema penale europeo vigente (Milano: Giuffrè, 2007); Andrea Buratti, ‘L’affaire
 The Thin Line between Transitional Justice and Memory Activism  13

would be intended to strengthen the consensus on a truth concerning historical facts

of great significance. It would criminalize

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An attack on the ethical pact. . . – meant as – the Nazi genocide which signifi-
cantly contributed to changing the essential values and foundations of numer-
ous national constitutions and the international legal system as a whole. All
these legal instruments manifest a social compact that arises from a shared ex-
perience resulting in a collective memory and a desire not to go down that
road again.65

This was the phase of the early 2000s. The new trend expressed by the German
and English laws of 2017 seems to operate in the opposite direction: they do not se-
lect some elements of the past to place at the basis of the present ethical pact.
Rather, they are intended to modify, or rather to ‘purify,’ the past on the basis of
contemporary values, while at the same time reaffirming those values officially and
symbolically for modern communities.

THE RISKS OF UNTOUCHABLE AND FRAGMENTED MEMORIES

As noted, the practice has not yet confirmed the birth of a new legislative trend.
Nonetheless, imagining the consequences of such a hypothesis may be useful,
regardless of the driving motivations. Surely memory, like history, has its social func-
tions and is able to generate good or bad practices. The new horizon of memory ac-
tivism seems, however, to lie closer to the negative aspects. If ‘“wounded memory”
become(s) political awareness’66 and memory activism is a political challenge, then
memory activism has very little to do with the past: it is more closely related to the
political needs of the present. This is not worthless per se. What I question is the po-
tential risk of using the law for these purposes. The risk is not only the fragmentation
of memory, but also its estrangement from history. The risk is a fight for the legal
recognition of one’s suffering, something similar to a final judgement on who is
guilty and who innocent. History aims at discussing the past and analyzing it in a
detached manner, in a wider context. The risk of the above-described approaches to
the past is using it for the aims of the present, just as a sacralized moral book does,
in order to learn who is good and who is evil.67
Such degeneration would constitute an abuse of memory. Scepticism of this na-
ture might be considered exaggerated, but some examples of recent practices provide
evidence of the estrangement of memory from history and should therefore be
regarded as red flags for possible abuses of memory. Reference could be made to the
fact that different courts – in particular the IACtHR – have stressed the right to his-
torical memory and to the truth, as well as an obligation to punish and a prohibition

Garaudy di fronte alla Corte di Strasburgo. Verità storica, principio di neutralità etica e protezione dei
“miti fondatori” del regime democrático,’ Giurisprudenza italiana 12 (2005): 2243–2247.
65 Fronza, supra n 21 at 166.
66 ‘Jean Ziegler Speaks of “Hatred of West”,’ Canada Free Press, 27 November 2009, http://canadafreepress.
com/article/jean-ziegler-speaks-of-hatred-of-west (accessed 4 July 2018).
67 In the poetic words of Nobel Prize winner Bob Dylan, ‘And you never ask questions/When God’s on
your side.’ Bob Dylan, The Lyrics: 1961–2012 (New York: Simon & Schuster, 2016), 85.
14  P. Caroli

on pardoning the most severe wrongdoings. In these cases, the privatization of mem-
ory is deeply connected to the privatization of criminal law.68
Another possible consequence is the production of a hierarchy of memories,

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based on the strength of a group of victims to impose the memories of their past suf-
fering in present time. This leads us back to the issue of the ‘forgotten victims’ in
Germany, such as ‘asocials’ or disabled victims of euthanasia. Unlike the memory of
the suffering of Jews, the memory of their suffering is not considered strong or cru-
cial enough to legitimize a criminal sanction for those who deny it.
In discussing selective and fragmented memories, one could also think of Italy, a
country where the Holocaust is annually commemorated and its denial is now pun-
ished by criminal sanction.69 Nonetheless, Italy has never really dealt with its fascist
past and national responsibilities for crimes committed by fascists in the country and
abroad.70 This forgotten past includes the introduction of racial laws, the anti-
Semitic public propaganda and a significant contribution to the ‘hunting’ of Jews in
occupied Italy.71 A clear example can be found in the Italian law (No. 4557 of 2000)
which introduces the Shoah (Holocaust) Remembrance Day but does not mention
the word ‘fascism.’ Contrary to an original proposition, Shoah Remembrance Day

68 A tendency can be noticed to affirm the notion of a subjective right onto the punishment of the guilty
person, as a right of the community and, above all, of those private individuals who may claim that pun-
ishment: the victims. Criticisms are expressed in, among many others, Jesus-Maria Silva Sanchez,
‘Doctrines Regarding the Fight against Impunity and the Victim’s Right for Perpetrator to be Punished,’
Pace Law Review 28(4) (2008): 865–884; Franklin E. Zimring, The Contradictions of American Capital
Punishment (Oxford: Oxford University Press, 2003). For the ‘right to the truth,’ see the following
IACtHR cases: Almonacid-Arellano and Others vs. Chile, Series C No. 154 (26 October 2006); La Rochela
Massacre vs. Colombia, Series C Nos. 163 and 175 (11 May 2007); Valle Jaramillo and Others vs.
Colombia, Series C Nos. 192 and 201 (27 November 2008); Case of the Gómez-Paquiyauri Brothers v.
Peru, Series C No. 110 (8 July 2004). For an overview of the development of this right, see, Yasmin
Naqvi, ‘The Right to Truth in International Law: Fact or Fiction?’ International Review of the Red Cross 88
(2006): 245–273; Ambos, supra n 26.
69 Emanuela Fronza, ‘L’introduzione dell’aggravante di negazionismo,’ Diritto penale e processo 2 (2017):
155–167. See also the different opinions of Emanuela Fronza, David Brunelli and Antonio Cavaliere in
Rivista italiana di diritto e procedura penale 2 (2016); Giuseppe Puglisi, ‘A margine della c.d. “aggravante
di negazionismo”: tra occasioni sprecate e legislazione penale simbolica,’ Diritto penale contemporaneo
(2016); Gabriele Della Morte, ‘Sulla legge che introduce la punizione delle condotte negazionistiche nel-
l’ordinamento italiano: tre argomenti per una critica severa,’ SIDI Blog, 2016, http://www.sidiblog.org/
2016/06/22/sulla-legge-che-introduce-la-punizione-delle-condotte-negazionistiche-nellordinamento-ital
iano-tre-argomenti-per-una-critica-severa/ (accessed 5 July 2018); Siro De Flammineis, ‘Riflessioni sul-
l’aggravante del “negazionismo”: offensività della condotta e valori in campo,’ Diritto penale contempora-
neo (2016).
70 On the Italian political transition from a legal point of view, see, Paolo Caroli, La giustizia di transizione in
Italia. L’esperienza dopo la seconda guerra mondiale (Trento: University of Trento E-Prints, 2017), http://
eprints-phd.biblio.unitn.it/1981/ (accessed 14 July 2018); Emanuela Fronza, ‘La poursuite des crimes
nazis et fascistes en Italie,’ in Mélanges en l’honneur de Geneviéve Giudicelli-Delage (Paris: Dalloz, 2016);
Sergio Seminara, ‘Die Aufarbeitung der faschistischen Vergangenheit in Italien. Strafrechtliche Probleme,’
Jahrbuch der Juristischen Zeitgeschichte 15(1) (2014): 3–65; Massimo Donini, ‘La gestione penale del pas-
saggio dal fascismo alla Repubblica in Italia,’ Materiali per una storia della cultura giuridica 39(1) (2009):
183–216; Giuliano Vassalli and Giuseppe Sabatini, Il collaborazionismo e l’amnistia politica nella giurispru-
denza della Corte di Cassazione (Roma: La Giustizia Penale, 1947). From a historical point of view, see,
Roy Palmer Domenico, Italian Fascists on Trial, 1943–1948 (Chapel Hill, NC: University of North
Carolina Press, 1991); Hans Woller, Die Abrechnung mit dem Faschismus in Italien, 1943–1948
(München: Oldenbourg, 1996).
71 See, Toni Rovatti, Leoni vegetariani. La violenza fascista durante la RSI (Bologna: Clueb, 2011).
 The Thin Line between Transitional Justice and Memory Activism  15

was set on the day of the liberation of Auschwitz and not on the day of the deport-
ation of the Jews from the Roman ghetto, the latter an event that would have implied
a major recognition of Italian responsibilities.72

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Memory activism, no matter how good the intentions, can lead to fragmentations
and memory abuses. In 2011, an Argentinian judge was asked officially to declare, on
the basis of the victims’ right to the truth, the existence of the Armenian genocide
and its qualification as such.73 The judge, on the sole basis of the evidence produced
by the appellant, confirmed the genocide and condemned not only the Turkish state,
but also the international powers that at the time remained silent, equating their si-
lence with assent. The judge defined himself as a mere procedural vector, one who
respectfully endorses the affirmations contained in the lawsuit. He also affirmed that
the factual reconstruction of the Armenian genocide was already so commonly
known that no evidence was needed in the trial. He claimed that the sole function of
a judge is to validate the victims’ truth and to recognize it as official and irrevocable.

C ON CL US I ON
The fact that homosexuality is no longer a crime, and that governments distance them-
selves from the policies of the past by paying tribute to the victims, is certainly a
commendable initiative. However, one wonders how to interpret the choice to achieve
this simply by intervening retrospectively in criminal trials carried out on the basis of a
criminal law legitimately in force at that time, in that place. If today these criminal pro-
visions appear objectively to be unjust, to the society of those times such conduct
must have appeared as deserving of both society’s contempt and of legal repercussions,
rendering those convictions even more tragic by our contemporary standards.
The issue of the use of such pardons arises not with reference to the few convicted
still alive, but to the many already deceased. Of course, if lawyers tend to be sceptical
when criminal law and punishment are moved by historical memory, as in the case of
the crime of denialism, in this case punishment is not only not extended, but reduced
ex post. Nevertheless, the following question arises: Even if moved today by the best of
intentions, which pathway does this operation open that may be followed tomorrow
by negative intentions? What is the purpose of intervening today in the criminal law
that existed yesterday and that was in fact applied, through chemical castrations, depor-
tations, imprisonments and deaths, none of which can ever be erased?
The danger is to open the way for a new fragmentation of memory and for strug-
gles between memory lobbies asking for amendments of the past. This would mark a
new phase in the already existing struggles for the recognition of one’s personal
wounds by judges or legislators. It may constitute the next step in a growing ten-
dency to use the past as

A moral memory palace: a pedagogically serviceable Chamber of Historical

Horrors. . .we encourage citizens and students to see the past – and its

72 See, Andrea Pugiotto, ‘Quando (e perché) la memoria nazionale si fa legge,’ in Per una consapevole cultura
costituzionale. Lezioni magistrali, ed. Andrea Pugiotto (Napoli: Jovene, 2013).
73 Juzgado Nacional en lo Criminal y Correccional Federal No. 5 de Buenos Aires, Resolucion declarativa de
los sucesos históricos conocidos como el genocidio del pueblo armenio – a~nos 1915/1923 (1 April 2011).
16  P. Caroli

lessons – through the particular vector of their own suffering (or that of
their ancestors). Today, the ‘common’ interpretation of the recent past is
thus composed of the manifold fragments of separate pasts, each of them

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(Jewish, Polish, Serb, Armenian, German, Asian-American, Palestinian,
Irish, homosexual. . .) marked by its own distinctive and assertive condition
of victimhood. The resulting mosaic does not bind us to a shared past, it
separates us from it.74

Again, the reasons for the adoption of the analyzed laws are not questioned here.
Perhaps, rather than denying ex post the crimes committed in the past, it would be
appropriate to understand their causes and their effects, in order to find possible sim-
ilarities in our societies, although with different modalities and different groups.
Measures such as the German and English laws can certainly offer a pedagogical con-
tribution, provided that it is not directed only towards a representation and
commemoration of one’s suffering, but towards a secular and rational analysis, to-
wards the development of critical thinking.
From this perspective, scholars and practitioners of transitional justice should
maybe try to establish borders between transitional justice and memory activism, al-
though the latter might be very appealing in terms of public opinion. We should all
perhaps remember that the original aims of transitional justice were anything but div-
isive and that transitional justice has not developed in order to perpetuate fights, to
support lobbies, to pursue recognition of an authoritative truth or to affirm a per-
manent public status of victim. On the contrary, transitional justice was meant to
overcome divisions and sufferings, to allow reconciliation, democratic confrontation
and, most importantly, critical thinking.

74 Tony Judt, Reappraisals: Reflections on the Forgotten Twentieth Century (London: Vintage, 2008), 4.