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Should Holocaust Denial be Banned?

by Sabine Seifert

In the battle against right-wing extremism German Justice Minister Brigitte Zypries wants an EU-wide ban on denial of the Holocaust. But does such a ban make sense? And wouldn't it encroach on freedom of expression?

Holocaust denial is the subject of heated debate, not only in Europe but all over the world. In January 2007 the United Nations General Assembly passed a resolution condemning denial of the Holocaust.

UN passes a resolution in January 2007 in which denial of the Holocaust is
Photo: UN Photo/Paulo Filgueiras

As current holder of the rotating EU presidency, Germany is seeking to harmonise European laws on Holocaust denial. Pointing to Germany's "historical obligation" and under the auspices of a "draft resolution for combating racism and xenophobia," German Justice Minister Brigitte Zypries hopes to push through an EU-wide ban.

For years now the question of whether such a ban makes sense has fuelled debate. The answer varies from country to country and from legal system to legal system. While proponents of the ban want to establish inviolable limits, opponents claim it would only give a few "nutcases" the attention they crave - and infringe too much on freedom of speech.

The liberal stance of the British

British journalist and historian Timothy Garton Ash warned on 18 January 2007 in the British daily the Guardian that "the approach advocated by the German justice minister also reeks of the nanny state. It speaks in the name of freedom but does not trust people to exercise freedom responsibly."

By adopting this position Ash is upholding a liberal Anglo-Saxon tradition that is diametrically opposed to prevalent opinion in Germany and Austria. For in these countries the experience of their own historical errors is of fundamental importance and is inextricably bound up with the need to prevent a recurrence and make amends.

Nine EU member states have already criminalised Holocaust denial: Austria, Germany, France, Romania, Poland, Slovakia, Belgium, the Czech Republic and Lithuania. Austria has the toughest laws. As early as 1945 it introduced a "ban law" which made Holocaust denial punishable by law on the grounds that it "reactivated National Socialism". In Germany it wasn't until 1994 that the Federal High Court exempted denial of the Holocaust from the basic right of freedom of expression.

Meanwhile, in Great Britain and Denmark neither trivialising nor even negating the Holocaust are criminal offences.

The Irving case

When British historian and Holocaust denier David Irving went on trial in Austria last year, British journalists expressed ambivalent emotions: "Today David Irving, the infamous and discredited British historian, languishes in an Austrian jail. Just writing that sentence makes me feel happy," British columnist Ben Macintyre confessed on January 20, 2006 in the Times, but added: "The next sentence is much harder to write. He should be released."

The Austrians took a different view of the matter. Those who want to grant neo-Nazis freedom of expression, wrote Hans Rauscher on 21 February 2006 in the Austrian daily the Standard, are "mostly people who haven't had much to do with them. (...) The popular argument that 'crimes of opinion' can't be punished is unfounded. 'Holocaust deniers' like David Irving have no 'opinion'. They know – or they can if they want to – that these terrible crimes were committed and how they were committed. But they want to deny them, trivialise them, make them politically acceptable."

A state-controlled view of history

The Irving trial perfectly illustrated the conflicting lines of argument. Irving was sentenced to three years in prison and then released on probation in November 2006 following appeal proceedings.

Although Holocaust denial is a punishable offence in Germany, there were those there who criticised the proposal to criminalise it throughout the EU. Several German historians, among them Eberhard Jäckel and Götz Aly, as well as the German-American Konrad Jarausch, voiced their concern. In an interview with Deutschlandradio on 1 February 2007, Jäckel called for a scientific rather than a legal confrontation with Holocaust deniers.

In a commentary piece published in the Frankfurter Allgemeine Zeitung on 12 March 2007, Reinhard Müller, a journalist, expressed the following view: "Comments on historical events should not be a subject for penal law unless the objective is to make certain issues taboo or prescribe a certain way of thinking... Historical facts are fixed, but what we know of them and how we judge them is subject to constant change. In this respect both Orhan Pamuk, who was prosecuted in Turkey for insisting that the Turks committed genocide against the Armenians, and the British historian David Irving, who was imprisoned in Vienna for denying the Holocaust, were the victims of a misguided penal law that seeks to define attitudes."

Should denying the Soviet occupation also be banned?

Brigitte Zypries' initiative has raised an awkward question: If denial of the crimes of the Holocaust is to be made punishable by law across Europe, shouldn't the same rules apply to other historical events?

Latvian journalist Bens Latkovskis posed the following question in the 12 January 2007 edition of Delfi: "[...] if our 'friends' in the west would like to see that happen, why not add a few other issues to the mix, such as a ban on denial of the Soviet occupation? That would effectively end the exasperating debate about whether Latvia was occupied or not in 1940."

So we're not just talking about the Holocaust here, but about a fundamental problem that could take on absurd dimensions, as Timothy Garton Ash pointed out on 20 October 2006 in the Guardian: "Let the British parliament now make it a crime to deny that it was Russians who murdered Polish officers at Katyn in 1940. Let the Turkish parliament make it a crime to deny that France used torture against insurgents in Algeria. Let the German parliament pass a bill making it a crime to deny the existence of the Soviet gulag. Let the Irish parliament criminalise denial of the horrors of the Spanish Inquisition."

For the freedom of history

This scenario may seem exaggerated but such initiatives already exist. On 12 October 2006 the French parliament passed a law that made denial of the genocide against the Armenians a punishable offence. The Turkish government and some members of the opposition were angered, and the EU also criticised the new French law.

The Armenian genocide law is the latest of a series of French laws that deal with historical issues such as the Holocaust, the history of slavery and colonialism. French historians have protested "against political interference in historical matters"; "Liberté pour l'histoire!" (Freedom for history) endorses the appeal of eminent French historians, including Pierre Nora, Pierre Vidal-Naquet, Jean-Pierre Azema and Michel Winock.

Pierre Nora has described the 1990 French law that criminalised the denial of the Holocaust as the beginning of state interference in the sovereign field of historical research. In a programme broadcast on 30 January 2006, he told TV journalist Miriam Carbe: "This was the beginning of an official version of history. This path, which was taken with the best intentions, has led to more and more groups wanting their interpretation of history to be prescribed by law."

But representatives of human rights organisations and memorial sites take a different view. On 2 May 2006, Francois de Smet, vice-president of Belgium's Movement against Racism, Anti-Semitism and Xenopohobia (MRAX), wrote in La Libre Belgique: "One cannot fight racism without a constant reminder of what it leads to in its terminal phase: the physical annihilation of the other because he is the other. This is why revisionism amounts to a legitimate restriction on freedom of expression: by allowing someone, in the future, to freely accept or deny the existence of the genocide of the Jews, Tutsis and Armenians inevitably helps justify, indirectly, the ideology that allowed these massacres to occur."

A consensus resolution

On April 19/20 the European Council will discuss and vote on the draft resolution for combating racism and xenophobia. Only if there is a unanimous vote in its favour will it be adopted.

Austrian journalist Robert Misik sums up the situation as follows in the 31 January 2007 edition of the tageszeitung: "There is no single approach to dealing with Holocaust deniers and fans of Nazi insignia that is entirely satisfactory for all democracies... Each variant has its - historical - justification, which may differ according to time and place. However, it is a good thing that the banning approach is not becoming a generalised 'European policy'."

Sabine Seifert
Sabine Seifert was an editor for euro|topics. She studied German studies and History before going on to work as a cultural editor at the tageszeitung ...
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Alison Waldie

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