with the scientific collaboration of
ISSN 2611-8858



Theorizing Law and Historical Memory: Denialism and the Pre-conditions of Human Rights

There is a striking, and far from coincidental, resemblance between a state’s attitude towards history and its attitudes towards human rights. Both postures, after all, centrally concern a state’s statements or silences about important events, be they of a recent or a more remote past. Any state position towards its human rights past inherently entails a two-fold denial, both of views omitted by and of views contradicting its own. There are many senses in which allegations of human rights abuse can be denied, ‘bad-faith denialism’ by states being decisive for human rights. Bad-faith denialism is not a problem like torture or lack of food. It is a ‘meta-problem’ for human rights—the problem inherently attaching to all human rights problems. By the very nature of human rights, there is no way their implementation can even in principle be expected absent adequate expressive possibilities within society to challenge official records and histories. Free expression, then, while certainly no more important than other rights as a matter of sheer human existence—protections from torture or rights to food and water are arguably more important—must not be viewed as just another right on the human rights ‘checklist’. As the only ultimate safeguard against bad-faith denialism by states, it sets a condition for the very possibility of any regime of human rights, and the only meaningful measure against which human rights ‘universality’ can be assessed.

Third Generation Denialism. From the Protection of Memory to the Protection of Truth?

In light of the previous contributions, this article highlights the current state of the discussion about the relation- ship between memory time and criminal law. In particular, the article shows us that the spectrum of this discus- sion is today very wide, forcing us to go far beyond the more limited problem of the legitimacy and opportunity of the repression of Holocaust denial. This is not only because today denialism as a crime increasingly refers to international crimes in general, but also because historical denial constitutes the matrix of new and diversified phenomena, from conspiracy theories to the so-called fake news. All these phenomena have in common the at- tack on power according to a deconstructivist methodology.

Critical Remarks About the New “Crime” of Denial

Denial is an ever-increasing phenomenon. The reaction to it seems to be likewise ever-expanding. Article 3, paragraph 3-bis, of Law no. 654/1975 which entered into force in Italy last June is in keeping with the widespread tendency towards the criminalization of the expression of thoughts that overturn in a maddening and offensive way consolidated historical achievements. The Italian regulation goes even further, punishing explicitly both the Holocaust denial and the denial of international crimes as they are legally characterised by the Rome Statute of the International Criminal Court. This article attempts to investigate the new regulation. Attention will be paid to the structure of the law and the parliamentary process behind it for the purpose of understanding its legal nature. The legal implications will be evaluated depending on whether the act is considered an aggravation of an offence or a separate offence. In conclusion, a brief comparison of the types of offences of some European countries will be presented, in order to highlight the similarities and differences of the events for which the denial is prohibited.

Di fronte al negazionismo e al discorso d’odio

La previsione (nella proposta approvata in prima lettura dal Senato) del negazionismo come circostanza aggravante del reato di cui all’art. 3 della c.d. legge Mancino, non comporta un’estensione dell’area dell’illecito penale. Sul terreno penalistico è priva di utilità, ma non presenta i rischi connaturati a un’incriminazione autonoma. Risponde a ragioni di opportunità politica: chiuderebbe il problema di dare attuazione alla direttiva quadro europea, e trasmette un messaggio di impegno politico contro l’antisemitismo.