This article provides an overview of “memory laws” in Europe, reflecting upon what may be called the “asymmetry” of such laws. It then looks at the special case of Poland and its troubled experience with memory laws; it considers the question of whether, in the eyes of the law – genocide, and in particular the Holocaust – is so “special” that its public denials warrant legal intervention. It also looks at the case law of the European Court of Human Rights and its (not necessarily coherent) “doctrine” on memory laws and their consistency, or otherwise, with the European Convention for the Protection of Human Rights and Fundamental Freedoms (and in particular with freedom of expression as laid down in Art. 10). The article concludes by asserting that even if we take the law as an indicator of European public memory, there is no consensus on the past, except perhaps for the special case of the Holocaust. The main challenge lies in determining whether memory laws, defined by some as social engineering and the imposition of “imperative” versions of memory, are consistent with the principles inherent in open, democratic and free societies in Europe. This challenge remains unmet.

The Holocaust constitutes one of the most powerful symbols in the history of humankind. Its memory, and in particular its irrefutable relationship with anti-Semitism, should trigger strict scrutiny every time anti-Semitic attitudes re-emerge, even if disguised as seemingly harmless words or actions. This applies also to legal measures, neutral on their face but which, in their consequences, may have an adverse effect on Jews, and thus raise the suspicion of anti-Semitic implications. Such implications are visible in the recent phenomena that serve as the two case studies for the present article: boycotts of Israel and bans on ritual slaughter (Shechita). While in the case of anti- Israeli boycotts, the core arguments relate to international anti-discrimination law and policies, in relations to the Shechita bans claims about violation of the religious freedom of observant Jews prevail. At the same time, in both cases strong references to the Holocaust and the memory of its victims are being invoked, allowing one to raise objections as to the status of the relevant legal developments. Here again history and memory enter into the public and legal discussions, legislative processes, and courtrooms.

Given the whole spectrum of doubts and controversies that arise in discussions about laws affecting historical memory (and their subcategory of memory laws), the question of assessing them in the context of international standards of human rights protection – and in particular the European system of human rights protection – is often overlooked. Thus this article focuses on the implications and conditions for introducing memory laws in light of international human rights standards using selected examples of various types of recently-adopted Polish memory laws as case studies. The authors begin with a brief description of the phenomenon of memory laws and the most significant threats that they pose to the protection of international human rights standards. The following sections analyse selected Polish laws affecting historical memory vis-à-vis these standards. The analysis covers non-binding declaratory laws affecting historical memory, and acts that include criminal law sanctions. The article attempts to sketch the circumstances linking laws affecting historical memory with the human rights protection standards, including those entailed both in binding treaties and other instruments of international law.