The alleged Hitlerian gas chambers and the alleged genocide of the Jews form one and the same historical lie, which permitted a gigantic financial swindle whose chief beneficiaries have been the State of Israel and international Zionism, and whose main victims have been the German people and the Palestinian people as a whole.
Incorporating Holocaust denial into the catalogue of issues governed by legal provisions, and in particular by the provisions of criminal law, raises a number of understandable doubts[i]. Aside from the controversies related to the indisputable interference with freedom of speech, there are problems concerning the form of legal regulations that would ban the dissemination of negationists’ thesis, as well as difficulties in guaranteeing the effectiveness and consistency of their proper enforcement.[ii]
The essential differences between the European and the American understanding of the free speech doctrine lead to distrust or even objection in the US towards every single court trial or a custodial sentence for a Holocaust denier in Europe.[iii] Moreover, the question whether, and how to punish someone for Holocaust denial, but also more broadly: for hate speech dissemination, poses a challenge especially for those European enthusiasts of the greatest possible freedom of speech who, at the same time and contradictorily as it may seem from the outside, acknowledge the need to resort to legal instruments, which restrict this freedom, in order to protect different values and the rights of other individuals.
II. Holocaust denial – Controversies in Definition
The basic difficulty which occurs while discussing the idea of penalizing Holocaust denial concerns the attempt to define the concept in legal terms. Due to the lack of a coherent, internationally recognized definition of the crime of negationism as a whole and Holocaust denial in particular, the scope of the penalization may differ considerably.[iv] At the same time, such divergence in definitions allows for a more flexible approach, where the newly generated forms of Holocaust denial can also be considered as legally forbidden negationism.
We observe differing approaches to negationism in the legal regulations of European states which penalize the public dissemination of Holocaust denial. Most obviously, the historical factors play a major role in defining the crime of negationism, as well as the political intention to shape and to influence the memory of the nation.
A. Selected Examples
In Polish legislation it is legally forbidden to contradict, publicly and contrary to the facts, Nazi crimes, communist crimes and other crimes constituting crimes against peace, crimes against humanity or war crimes, perpetrated against persons of Polish nationality and Polish citizens of other ethnicity or nationalities in the period between 1 September 1939 and 31 July 1990. Such contradiction is to be subject to a fine or a penalty of the deprivation of liberty of up to three years and the judgment is to be made publicly known.[v] The objective scope of the provision is not limited to negationism concerning crimes committed by Nazi Germany – it includes also the legitimate penalization of Katyn Massacre denial.[vi]
The French Gayssot Act, named after its initiator, Jean-Claude Gayssot (a socialist deputy in the French parliament), stipulates a punishment of one month up to one year of imprisonment or a fine for individuals who publicly question the existence of one or more crimes against humanity. These are defined in the statute of the International Military Tribunal at Nuremberg, included in the London Agreement of 8 August 1945 and carried out either by members of an organization declared criminal pursuant to Article 9 of the aforementioned statute, or by a person found guilty of such crimes by French or international jurisdiction.[vii]
The Austrian solution to penalize Holocaust denial was introduced in 1992 in the form of an amendment to the Prohibition Act of 1947, a special bill which banned the Nazi Party and provided the legal framework for the process of ousting all possible consequences of Nazism in Austria. It was aimed to suppress any potential future revival of the murderous Nazi regime.[viii] However, the foremost reason for introducing the legal ban on Holocaust denial in Austria was a number of court proceedings, in which Holocaust deniers were acquitted due to the ineffective basis for accusation. Austrian judges considered the legal ban on incitement to racial hatred as inapplicable to the negation of the Holocaust.[ix] As a result, a new provision was introduced. It stipulates that whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a printed publication, in a broadcast or other media, shall be punished with imprisonment from one up to ten years, and in cases of particularly dangerous suspects or activity, with up to twenty years imprisonment. The court may also decide on the forfeiture of property, which is most frequently, the edition of the publication containing the negationists’ thesis in its entirety.
Lichtenstein[x] and Romania[xi] explicitly mention the crime of the Holocaust in their negationism penalization laws. Legislation of the former penalizes anyone who by the spoken word, through pictures, in writing or electronic media denies, coarsely deprecates or tries to justify the Holocaust or other crimes against humanity with imprisonment of up to two years. The latter, on the other hand, punishes for the public negation of the Holocaust or its effects with imprisonment from six months up to five years. It is prohibited to erect or to maintain in public space, statues, statuary groups, or commemorative plaques celebrating persons guilty of committing crimes against peace and humanity as well as to name streets, boulevards, squares, parks or other public space after such persons.[xii]
If one agrees that penalizing this form of negationism is legitimate and relevant, it should be stated that in order to make the penal method effective, the legal definition of Holocaust denial must be sufficiently broad and contain not only negation of the crime of the Shoah but also inter alia, its trivialization and justification. However, accepting such an extensive definition obviously implies a higher risk of excessive interference into the sphere of free speech and freedom of scientific research. It is also bound with doubts concerning legal interpretation of such legally imprecise concepts as trivialization or justification. Nevertheless, the Europeans remain firmly convinced that the interpretative difficulties do not prevail over the need to legally regulate the dissemination of Holocaust denial. This is because the borderline between legal and illegal behavior in this respect is very fine, and it is highly inadvisable to leave it without a legal response and clarification.
B. The Council of Europe
The core and the idea of creating the Council of Europe is undoubtedly inextricably linked to the horrors of the Second World War and the Holocaust. Accordingly, all member states of the Council of Europe unanimously recognize any manifestation of anti-Semitism as human rights violation and the obligation to fight it is seen as an integral part of counteracting racism in Europe. This position of the Council of Europe has been confirmed repeatedly.[xiii] The willingness and, at the same time, necessity of an active and effective fight against anti-Semitism was also one of the motivations behind the establishment of the Council of Europe’s European Commission against Racism and Intolerance (ECRI) which happened during the First Vienna Summit Conference of Heads of State and Government of the member States of the Council of Europe in 1993.[xiv] In the “Vienna Declaration” adopted at that time, the common policy of counteracting racism, xenophobia, anti-Semitism and intolerance was agreed upon, underlining that the member states of the Council of Europe declare to combat all ideologies, policies and practices constituting an incitement of racial hatred, violence and discrimination, as well as any action or language likely to strengthen fears and tensions between groups of different racial, ethnic, national, religious or social background.
In 1997, the executive body of the Committee of Minister of the Council of Europe issued Recommendation No. R (97) 20, which deals exclusively with the phenomenon of hate speech.[xv] In the Appendix to that document, hate speech has been defined as speech covering all forms of expression which spread, incite, promote or justify racial hatred, xenophobia, anti-Semitism or other forms of hatred based on intolerance, including: intolerance expressed by aggressive nationalism and ethnocentrism, discrimination and hostility against minorities, migrants and people of immigrant origin. It is important that the concept of Holocaust denial has been included in the category of speech which disseminates and propagates anti-Semitism.
In light of the growing wave of anti-Semitic attitudes in the counties of the Council of Europe, its Parliamentary Assembly adopted Resolution No. 1563, entitled “Combating anti-Semitism in Europe”.[xvi] The Assembly emphasized how immense the danger of anti-Semitic contents is and called on all member states of the Council of Europe to vigorously and systematically enforce legislation criminalizing anti-Semitic and other hate speech, in particular any incitement to violence, and to make public denial, as well as, trivialization, justification or praise, with racist intentions, of crimes of genocide, crimes against humanity or war crimes, a criminal offence. The Resolution also includes the call to actively and strongly condemn all states sponsoring anti-Semitism, Holocaust denial and incitement to genocide.
Moreover, the Additional Protocol to the Council of Europe Convention on Cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems, deals with the issue of Holocaust denial in its Article 6, which stipulates that the states who are parties to the Protocol shall adopt such legislative measures as it may be necessary to establish, under its domestic law, that intentional: “distributing or otherwise making available, through a computer system to the public, material which denies, grossly minimizes, approves or justifies acts constituting genocide or crimes against humanity …” is a criminal offence.[xvii]
A direct reference to the need of Holocaust denial’s penalization may also be found in the ECRI General Policy Recommendation No. 9 “The fight against anti-Semitism”.[xviii] The most important aspect of the Recommendation concerns the shape of legal regulations in the Council of Europe member states and their effective implementation. Those states should ensure that for all criminal offenses, anti-Semitic motivation will be regarded as an aggravating circumstance. ECRI mentions actions, which, if committed intentionally, should be penalized: the public denial, trivialization, justification or condoning of the Shoah and public denial, trivialization, justification or condoning, with an anti-Semitic aim, and of crimes of genocide, crimes against humanity or war crimes committed against persons on the grounds of their Jewish identity or origin. Moreover, ECRI Recommendation indicates the need to punish by legal means public dissemination or public distribution, or the production or storage aimed at public dissemination or public distribution, of anti-Semitic intended written, pictorial or other material containing, inter alia, Holocaust denial.[xix] The need to implement an effective, legal ban on disseminating Holocaust denial is thus emphasized here in the most explicit way.
C. Council of the European Union’s Framework Decision
The records of debates, held for many years in the EU on the shape of the common Council Framework Decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, make it evident that those who supported the introduction of an obligation to penalize Holocaust denial by the EU member states followed European rationale for such penalization.[xx] It should be emphasized that these regulations were the object of a most serious and turbulent dispute. The discrepancies obviously stemmed from the differing approaches of individuals EU member states to the general problem of penalizing speech.
Ultimately, Article 1 section d) of the Framework Decision places the EU member states under obligation to use necessary measures to ensure penalization of a deliberate: public approval, negation or gross diminishing of crimes (specified in Article 6 of the Charter of the International Military Tribunal[xxi]; crimes against peace, war crimes and crimes against humanity) targeted at any group of people defined by their race, skin color, religion, descent, national or ethnic affiliations, or at any member of such a group, if such actions instigate violence or incite hatred addressed to such a group or its member. The provision also decides of the introduction of the same ban with respect to genocide, crimes against humanity and war crimes as defined by the Statute of the International Crime Court.[xxii] Notwithstanding these provisions, the final content of the Decision was disappointing to its supporters.[xxiii]
The Framework Decision indeed makes it possible to significantly limit the obligations imposed on member states. In addition to the remarks quoted above, member states may also declare that negation or gross diminishing of the crimes stipulated in the Decision shall be penalized only if it is ultimately ascertained by the national court of a particular member state and the international tribunal or by the international tribunal itself.[xxiv]
The Framework Decision came into force in December 2008, but the nature of the regulation required a prolonged period of its transposition in the EU member states.[xxv] Eventually the states were obliged to take the necessary measures to comply with the provisions of this Framework Decision by 28 November 2010. By the same date EU member states were required to transmit to the General Secretariat of the EU Council and to the EU Commission the text of the provisions by which they implemented the Framework Decision into their domestic legal orders. In three years, the EU Council shall assess the extent to which member states have complied with the provisions of this Framework Decision and review this regulation. It seems highly predictable that for those member states which haven’t penalized any form of negationism before the entry into force of the Framework Decision, it will be most problematic to comply with this part of the regulation. However, the question whether, or to what extent, the review process planned for November 2013 will indicate the need to exclude or strengthen the ban of negationism from the scope of the EU provision remains open.
III. Jurisprudence of the European Court of Human Rights
The essence of each of the above prerequisites is clearly mirrored in the jurisprudence of the Strasbourg European Court of Human Rights (ECtHR), the supervisory body of the European system of human rights protection.[xxvi] The Court (and previously also the European Commission of Human Rights, serving until 1998 as a part of the Strasbourg system) has repeatedly been faced with the problem of evaluating the method in which the member states of the Council of Europe limit the freedom of speech of Holocaust deniers by means of their domestic legislation. It is crucial that up until now ECtHR has consistently and unambiguously refused to grant the protection for Holocaust deniers, founding their complaints concerning the limitation of free speech, inadmissible.[xxvii]
However, the ECtHR’s position in regard to Holocaust denial has never been based on one consistent way of reasoning. The Strasbourg Court used various techniques to manifest the inadmissibility of negationists’ requests to cover their views with Article 10 of the European Convention of Human Rights, guaranteeing freedom of speech.[xxviii] In several cases, it considered the legal limitations of Holocaust deniers’ free speech, imposed by the member states, to be measures necessary for the protection of the rights of others, of the public security or public morals in a democratic society. At other times, ECtHR invoked Article 17 which stipulates that: “Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein (…)”. As a result, every attempt of negationists to rely on Article 10 is considered to be an abuse of rights guaranteed in this international human rights treaty.
X. v. Germany belongs to the earliest cases concerning Holocaust denial which were examined by the Strasbourg Court.[xxix] The author of the complaint displayed brochures which described the Holocaust as an ‘unacceptable lie’ and a ‘Zionist swindle’ on a notice board placed on the fence of his property. A neighbor of a Jewish descent whose grandfather had been murdered in a German concentration camp in Auschwitz filed a civil lawsuit against him. The Court of First Instance ruled that despite the fact that the brochures were not directly addressed at the neighbor or his grandfather, they must be considered offensive towards all Jewish victims of National Socialism and their surviving relatives. The court instructed Mr. X. to refrain from expressing his beliefs publicly. However, the Court of Appeal ruled that contents which denied the fact of the Holocaust did not insult people of Jewish origin as a whole, but rather solely individuals who were expressing certain opinions on the extermination of Jews during the Third Reich rule, opinion which, according to Mr. X., were untrue. The Federal Court of Justice issued a decision which reiterated the previous rulings of that court, according to which in Germany, because of its particular historical context, every individual of Jewish descent may feel insulted by attacks on Jews as a group, or as a community, regardless of his or her personal experiences during the time of the Nazi regime, and even regardless whether the person was alive at the time. The Court emphasized that Holocaust denial is not covered by the freedom of speech stipulated in the German Constitution.
The complaint filed by Mr. X. to the Strasbourg Court specifically referred to an alleged violation of article 10 of the Convention (a right to the freedom of speech), which in his opinion, supposedly took place as a result of the distortion of historical truth by the German nation for political reasons. He also claimed a violation of article 6 (a right to a fair trial), which was alleged due to the German Judge’s objection to order a review of popular Holocaust denial publications and views, which were supposed to serve as evidence in the civil suit.
Concerning the alleged violation of Article 10, the European Commission of Human Rights (which at that time decided on the admissibility criteria) delivered a very significant decision, finding that: “(…) it was neither arbitrary nor unreasonable to consider the pamphlets displayed by the applicant as a defamatory attack against the Jewish community and against each individual member of this community. By describing the historical fact of the assassination of millions of Jews, a fact which was even admitted by the applicant himself, as a lie and a Zionistic swindle, the pamphlets in question not only gave a distorted picture of the relevant historical facts but also contained an attack on the reputation of all those who were described as liars or swindlers, or at least as persons profiting from or interested in such lies or swindles. The Commission considers that the courts rightly identified this as the underlying tendency of the pamphlets in question. Their restriction was therefore not only covered by a legitimate purpose recognised by the Convention (namely the protection of the reputation of others), but could also be considered as necessary in a democratic society. Such a society rests on the principles of tolerance and broadmindedness which the pamphlets in question clearly failed to observe. The protection of these principles may be especially indicated vis-à-vis groups which have historically suffered from discrimination. The fact that collective protection against defamation is limited to certain specific groups including Jews is based on objective considerations and does not involve any element of, discrimination contrary to Article 14 of the Convention”.
Furthermore, in response to the accusation of violation of Article 6 of the Convention by not allowing the negationist materials as evidence, the Commission reiterated that the crime of the Holocaust was a historical fact which was proven beyond any reasonable doubt and did not need to be proven in the courtroom again. German courts were not supposed to rule over whether the contents of the brochures were true or not, but to answer the question concerning their insulting nature. Concluding, the European Commission stated that the entire complaint of Mr. X. was manifestly ill-founded.
The penalization of Holocaust denial was further considered in Strasbourg in another, interesting context. The complaint concerned the imposition, by the authorities of the city of Munich, upon the National Democratic Party of Germany – NDP (German radical, far-right political party) various duties related to the organization of a conference entitled “Germany’s future in the shade of political extortion?”, where David Irving, a well known anti-Semite and Holocaust denier, was to deliver a key lecture.[xxx] NDP was obliged to ensure that the crime of the Holocaust will not be negated during the course of the entire conference as well as to inform participants of penalty sanctions resulting from inciting to hatred and insulting the memory of the dead. Were such contents to occur, the organizers of the meeting had the duty to block them or even to discontinue the conference immediately. Because of David Irving’s participation in the conference, the risk that the statements negating the Holocaust would occur in the course of the meeting was assessed as very high. The NDP complaint on the decision of the Munich authorities was rejected in subsequent court instances. Ultimately, the German Federal Constitutional Court ruled yet another time that the negation of the Shoah did not fit within the framework of the constitutional protection offered to the freedom of speech.
The authors of the communication submitted to Strasbourg claimed in particular that: “statements denying the persecution of Jews under the Nazi regime, in particular the denial of the existence of gas chambers were protected by the Convention as statements or opinions relating to contemporary history. In this respect, the applicant organisation maintains that, according to scientific research, the gas chambers in Auschwitz were not authentic”. In the opinion of the NDP, the conference scheduled was only to refer to the concept of the anti-German atrocity propaganda.
The European Commission of Human Rights clearly stated the inadmissibility of the complaint and judged the intervention of German authorities as justified and proportionate. David Irving’s presence was rightly assessed, according to the Commission, as a factor which made it highly probable that statements negating the fact of the Holocaust would occur and instances of disturbing public order and provision were made to duly prevent committing such offense. The Commission decided, referring to article 17 of the Convention, that statements negating the fact of persecution of millions of Jews by the Nationalist Socialist regime, made in the context of the discussion about ‘anti-German atrocity propaganda’, stood in contradiction to the essential values underlying the entire Convention.
Among numerous complaints submitted to Strasbourg by Holocaust deniers, there was also one of Roger Garaudy, one of the key leaders of the European negationist movement, who had been fined by the French courts for denying the crime of the Holocaust.[xxxi] In the process of considering the legitimacy of the said complaint, the ECtHR’s standpoint regarding the attempts to use the Convention by the persons who disseminate Holocaust denial was unmistakably presented. In its decision, the Strasbourg Court firmly asserted that the negation of the Shoah is: “one of the most serious forms of racial defamation of Jews and of incitement to hatred of them. The denial or rewriting of this type of historical fact undermines the values on which the fight against racism and anti-Semitism are based (…). Such acts are incompatible with democracy and human rights because they infringe the rights of others”. As a result, the complaint was found inadmissible on the basis of Article17 of the Convention.
The fact that the ECtHR relies on Article 17 of the European Convention on Human Rights in its jurisprudence concerning public dissemination of Holocaust denial is very significant. However, it simultaneously raises several doubts, arising from an exceptional character of this provision. In accordance to the case law of the Strasbourg Court, as well as to the idea governing the creators of the European Convention themselves, Article 17 is designed to serve solely as the ‘last resort’ in cases where the limitation clauses appended to those provisions of the Convention, granting specific rights and freedoms, may no longer be applied or would be deemed insufficient. The essence of the meaning of Article 17 was expressed during the consideration of the complaint in the case of De Becker v. Belgium[xxxii], where the ECtHR emphasized that Article 17 was applicable only to those individuals who posed a threat to the democratic order of the State-parties to the European Convention.
The fact that the ECtHR rules Holocaust deniers to be individuals who pose this kind of threat, is a clear sign that the Strasbourg judges understand and are ready to fight the dangers resulting from negating the Holocaust in Europe. However, a question arises as to the scope and wording of negationists’ statements which are to be covered by Article 17. Moreover, would a similar line of argumentation be recalled towards the efforts to negate the genocide which took place in Bosnia during the Balkan wars? The fact that the crime of genocide was committed in Bosnia at that time has also been proven and established beyond reasonable doubts.[xxxiii] Moreover, new provisions penalizing negation of other genocides are being implemented by the individual European states, as was the case with the French legislation forbidding negation of the genocide committed by the Turks on the Armenian people.[xxxiv] Until now, the ECtHR has not been required to respond to this question, but it is most likely that it will soon face such challenges. Only than will it be possible to assert with certainty that the anti-Semitic character of Holocaust denial is a decisive factor on which the invocation of Article 17 in negationism context of the Convention relies.
V. Jurisprudence of the UN Human Rights Committee on Holocaust denial in the European context
A question concerning freedom of speech of Holocaust deniers in the European context, similar to the one discussed above, was examined by an international, quasi-judicial body of the universal human rights protection system, namely, the UN Human Rights Committee. Robert Faurisson, yet another prominent representative of the European negationist movement, submitted the complaint to the Committee.[xxxv] Shortly after the so-called Gayssot Act, penalizing negation of the Holocaust, had been passed in France, Faurisson gave a press interview, in which he stated inter alia that he did not believe in the “policy of extermination of Jews” and “magical gas chambers”. Eventually, the French court fined Faurisson.
During the proceedings in front of the UN Committee, where Faurisson submitted his complaint, France raised the issue of admissibility of the communication, arguing that it should be dismissed as inconsistent ratione materiae with the provisions of the International Covenant on Civil and Political Rights.[xxxvi] It evoked Article 5 of the Covenant, which is similar in its character and effect to the regulation of Article 17 of the European Convention on Human Rights and stipulates that: “Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein (…)”. It was emphasized that Faurisson’s complaint should be treated in the same manner as similar complaints submitted to the Strasbourg Court and found inadmissible. Furthermore, Article 20 of the Covenant was evoked. The provision explicitly imposes an obligation on all its State-parties to prohibit by law any war propaganda, as well as any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. However, the UN Human Rights Committee did not share the position of the French government and found the complaint admissible to the extent of alleged violation of Faurisson’s freedom of speech, guaranteed by Article 19 of the Covenant.
When considering the merits of the communication, the Committee stated that in certain circumstances, the Gayssot Act may lead to the breach of the Covenant, as it limits the freedom of speech in too extensive way. However, it also emphasized that in the case of Roger Faurisson, the French courts managed to eliminate such a risk by carefully analyzing all circumstances of the case. Furthermore, the Committee referred to its General Comment No. 10, where it is explicitly stated that legitimacy of restrictions of the freedom of speech may be necessary in order to protect and ensure the interests of other persons and specific groups as a whole.[xxxvii] Therefore, restricting free speech of a Holocaust denier served to protect the right of the Jewish community in France to live a life free of fear and the atmosphere of anti-Semitism. The statements made by Faurisson, interpreted in their wider context, stirred anti-Semitic feelings. As a result, the Committee decided that France did not violate any provisions of the Covenant. However, the Committee’s decision was accompanied by a number of individual opinions of the Committee’s members, who emphasized their concerns related to – in their view – too restrictive a nature of the French legal regulation penalizing Holocaust denial. Although they all agreed with the final conclusion of the Committee, the Gayssot Act was perceived as a threat to the freedom of speech, if used in a context that would be different from the anti-Semitic one.
One of the most striking elements of the Committee’s decision in Faurisson case, was a statement included by Professor Thomas Buergenthal, at the time a member of the Committee: “As a survivor of the concentration camps of Auschwitz and Sachsenhausen whose father, maternal grandparents and many other family members were killed in the Nazi Holocaust, I have no choice but to recluse myself from participating in the decision of this case”. This powerful confession of a Holocaust survivor, forced by the Holocaust denier’s seeking demand of protection for his anti-Semitic views in front of the UN human rights protection body, is indeed a symbolic one.
The question of the legitimacy of penalizing Holocaust denial is an element of a broader doctrinal dispute, where the views of those who advocate the unrestricted freedom of speech of the negationists clash with the views of those who see the need to use a specific legal barrier in cases of drastic abuse of this freedom. The discussion is also constantly present among European states: in 2007, the Constitutional Court of Spain found the legal provision penalizing Holocaust denial, unconstitutional.[xxxviii] It stated that the danger of restricting free public debate within the democratic society of Spain overrides the need to counteract dissemination of Holocaust denial.
Beyond the free speech violation controversies, the fact that serious doubts appear among European legislators and judicature is also caused by another, disturbing phenomenon of multiplication in many European states of so called ‘memory laws’. Recently there have been more and more legal regulations penalizing various ‘historical lies’, some being far from rational.[xxxix] I will here quote two significant examples. As it was already noted above, in the Turkish penal code it is forbidden to publicly claim that the Armenian genocide had ever taken place. In 2005, a world-famous Turkish writer and a Noble Prize winner, Orhan Pamuk, was accused of public insult of the Turkishness. In one of press interviews he had stated that murdering Armenians by the Turks was nothing else but genocide.[xl] Grotesque as it may seem, at the same time France and Switzerland penalize public denial of Armenian genocide. The Russian Parliament, on the other hand, has in 2009 started drafting a law which can result in panalizing any critique of the role of the Soviets in the Second World War – an unprecedented abuse of the truth from the Polish perspective.[xli] The question arises: which of the historical claims deserves legal protection? When does justified action against the abuse of historical truth turn into state-sponsored decreeing of an official version of history? Those questions remain open, as the answers to them depend to a large extent on the particular contexts and individual cases of ‘memory laws’.
And yet, in the case of Holocaust denial it is not enough to speak of falsifying facts and historical events. It is an unprecedented phenomenon present all over the world and spread for very concrete reasons – in order to incite to hatred of one particular nation, the Jewish people. The fact that at the moment Holocaust denial is part of an official state doctrine of Iran is terrifying. What is, however, even more problematic, but no less terrifying, is the moment when a fellow of one of the most prestigious American universities organizes a meeting for students to meet the former president of Iran, the very same person who has for years repeated that the Jews invented Holocaust and that Israel should be wiped off the world map.[xlii] What could the future world leaders possibly learn from being exposed to the views of an anti-Semite and Holocaust denier?
The anti-Semitic motivation for spreading Holocaust denial is the most convincing reason for the necessity to punish negationists for their words. What is debatable is whether or not they should be punished by imprisonment. It is possible that setting up very high financial sanctions for spreading Holocaust denial, backed by the obligation to publicize and publicly announce the judicial sentence, could bring a desirable effect. At the same time, we should be wary of the postulate to penalize Holocaust denial solely in Germany. Even though in this case Germany does carry major responsibility, denying the murder of millions of Jews has the very same objective and the very same harrowing effects all over the world.
Aleksandra Gliszczyńska – Grabias, PhD is an SPME Fellow
 ROBERT FAURISON as quoted by the Guardian Weekly (7 Apr. 1991).
[ii] The term negationism in relation to Holocaust denial seems to be more appropriate than the frequently applied term revisionism. The school of revisionism may be associated with historical research, whereas Holocaust denial has nothing in common with any academic conduct. Negationism comprises multiple forms of denying historical truth, most frequently however it is used to describe various forms of Holocaust denial. See, e.g., DEBORAH LIPSTADT, DENYING THE HOLOCAUST: THE GROVING ASSAULT ON TRUTH AND MEMORY (1994); MICHAEL SHERMER, ALEX GROBMAN, DENYING HISTORY: WHO SAYS THE HOLOCAUST NEVER HAPPENED AND WHY DO THEY SAY IT? (2000).
[iii] The differences between the European and American perception of the conflict between free speech and hate speech, cover many more elements than only Holocaust denial. The compelling description of the American understanding of the civil liberties doctrine in the context of hate speech can be found in the book of Aryeh Neier, former leader of the American Civil Liberties Union. See, ARYEH NEIER, TAKING LIBERTIES. FOUR DECADES IN THE STRUGGLLE FOR RIGHTS, pp. 113-33 (2003).
[iv] The U.N. General Assembly states that it condemns without any reservation any denial of the Holocaust, See G.A. Res. 61/251, U.N. Doc. A/RES/61/255 (22 Mar. 2007). See also, Jonathan Cooper & Adrian Marshall Williams, Hate Speech, Holocaust Denial and International Human Rights Law, 6 E. H. R. L. Rev. 593 (1999).
[v] Polish Official Journal No.155, item 1016 (18 Dec. 1998), available at http://isap.sejm.gov.pl/.
[vi] In Spring 1940, in the forest of Katyn, the Soviets murdered almost 20,000 Polish prisoners of war – military officers, policemen, intellectuals.
[vii] French Official Journal No. 162 (13 July 1990), available at http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=LEGITEXT000006076185&dateTexte=vig.
[viii] Austrian Official Journal No. 148/1992 (19 Mar. 1992), available at http://www.nachkriegsjustiz.at/service/gesetze/BGBl_148_1992.gif.
[ix] See, STEPHEN J. ROTH, DENIAL OF THE HOLOCAUST. AN ISSUE OF LAW, 221-22 (1994).
[x] Lichtenstein’s Official Journal (24. Juni 1987), Article 283, available at http://www.gesetze.li/Seite1.jsp?LGBlm=1988037.
[xi] Emergency Ordinance 31/2002 of the Penal Code, Monitorul official al Romaniei (28 Mar. 2003), cited in “Final Report of the International Commission on the Holocaust in Romania”, presented to President Ion Iliescu, Bucharest (11 Nov. 2004), p. 36.
[xii] See, databases of the EU Fundamental Rights Agency, available at http://fra.europa.eu/fraWebsite/products/products_en.htm.
[xiii] See e.g., Council of Europe Parliamentary Assembly Recommendations: No. 1222 (1993) on the fight against racism, xenophobia and intolerance, No. 1275 (1995) on the fight against racism, xenophobia, anti-Semitism and intolerance, No. 1438 (2000) on the threat posed to democracy by extremist parties and movements in Europe and No. 1543 (2001) on racism and xenophobia in cyberspace. See also Council of Europe Parliamentary Assembly Resolutions: No. 1308 (2002) on restrictions on political parties in the Council of Europe member states, No. 1345 (2003) on Racist, xenophobic and intolerant discourse in politics, all available at http://assembly.coe.int/ASP/Doc/ATListing_E.asp.
[xiv] The compilation of the Council of Europe documents, available at http://www.coe.int/t/dcr/summit/decl_vienne_pl.asp.
[xv] Council of Europe Committee of Ministers Recommendation No. R (97)20 on hate speech, available at https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=568168&SecMode=1&DocId=582600&Usage=2.
[xvi] Council of Europe Parliamentary Assembly Resolution No. 1563 (2007) on Combating anti-Semitism in Europe, available at http://assembly.coe.int/main.asp?Link=/documents/adoptedtext/ta07/eres1563.htm.
[xvii] Additional Protocol to the Convention on cybercrime, concerning the criminalization of acts of a racist and xenophobic nature committed through computer systems, available at http://conventions.coe.int/Treaty/en/Treaties/Html/189.htm. The Additional Protocol entered into force on the 1st of March 2006 and has been by now ratified by 19 European states.
[xviii] ECRI General Policy Recommendation N°9 on the fight against anti-Semitism, CRI(2004)37, available at http://www.legislationline.org/documents/action/popup/id/7388.
[xx] Council of the European Union Framework Decision 2008/913/JHA of 28 Nov. 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, Official Journal of the European Union, L 328/55, (6 Dec. 2008).
[xxi] Article 6 of the Charter of the International Military Tribunal – Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”) stipulates: “The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there
shall be individual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to Wave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” See, The Charter and Judgment of the Nürnberg Tribunal: History and Analysis Appendix II. United Nations General Assembly – International Law Commission, New York, 1949 (A/CN.4/5), available at http://www.unhcr.org/cgi-bin/texis/vtx/refworld/rwmain.
[xxii] Article 6 of the Rome Statute of the International Criminal Court defines the crime of genocide as: any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.” See, The Rome Statute of the International Criminal Court, A/CONF.183/9, available at http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/
[xxiii] See e.g., Report dated 14 Nov. 2007, on a motion concerning the Framework Decision of the Council on fighting selected forms and expressions of racism and xenophobia pursuant to the regulations of the penal law, presented by Martine Roure, Member of the European Parliament acting as a commentator. The description of the entire tumultuous negotiation process related to the adoption of the Decision is available at http://ec.europa.eu/prelex/detail_dossier_real.cfm?CL=en&DosId=169885.
[xxiv] Article 1 (4) of the Framework Decision.
[xxv] Article 10 of the Framework Decision.
[xxvi] The European Court of Human Rights is an international court set up in 1959. It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights. Since 1998 it has sat as a full-time court and individuals can apply to it directly. The Court’s case-law makes the Convention a powerful living instrument for meeting new challenges and consolidating the rule of law and democracy in Europe. On the jurisprudence of the Strasburg Court concerning hate speech and Holocaust denial see e.g. Uladzislau Belavusau, Dernier Cri from Strasbourg: An Ever Formidable Challenge of Hate Speech, European Public Law , Vol. 16/3, 2010, pp. 373-389; Ivan Hare, Extreme Speech under International and Regional Human Rights Standards in: IVAN HARE, JAMES WEINSTEIN (eds.), EXTREEME SPEECH AND DEMOCRACY (2009); M.G. Schmidt, R. L. Vojtovic, Holocaust Denial and Freedom of Expression in: T.S. ORLIN, M. SCHEININ, THE JURISPRUDENCE OF THE HUMAN RIGHTS LAW: A COMPARATIVE INTERPRETIVE APPROACH (2000).
[xxvii]The inadmissibility of the Holocaust deniers’ complaints was found in numerous cases, including: T. v. Belgium, App. No. 9777/82 (1983); F. P. v. Germany, App. No. 19459/92, (1993); Honsik v. Austria, App. No. 25062/94 (1995); Remer v. Germany, App. No. 25096/94 (1995). Nachtmann v. Austria, App. No. 36773/97 (1998); Witzsch v. Germany, App. No. 41448/98 (1999).
[xxviii] Article 10 of the European Convention of Human Rights stipulates: “1.Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”. Convention for the Protection of Human Rights and Fundamental Freedoms
CETS No.: 005, available at http://conventions.coe.int/treaty/Commun/QueVoulezVous.asp?NT=005&CL=ENG.
[xxix] X. v. Federal Republic of Germany, App. No. 9235/81 (1982).
[xxx] Nationaldemokratische Partei Deutschlands, Bezirksverband Muenchen-Oberbayern v. Germany, App. No. 25992/94 (1995).
[xxxi] Roger Garaudy v. France, App. No. 65831/01 (2003).
[xxxii] De Becker v. Belgium, App. No. 214/56 (1962).
[xxxiii] The International Criminal Tribunal for the Former Yugoslavia found in Prosecutor v. Radislav Krstic – Trial Chamber I – Judgment – IT-98-33 (2001) ICTY8 (2 Aug. 2001) that genocide had been committed. It was upheld in Prosecutor v. Radislav Krstic – Appeals Chamber – Judgment – IT-98-33 (2004) ICTY 7 (19 Apr. 2004), available at http://www.icty.org/.
[xxxiv] French bill against Armenian Genocide denial available at http://www.assemblee-nationale.fr/12/dossiers/reconnaissance_genocide_armenien_1915_loi_2001.asp (in French). See also reports on Turkish politician fined over genocide denial by the Swiss courts: http://www.swissinfo.ch/eng/Home/Archive/Court_confirms_verdict_against_Perincek.html?cid=6324022.
[xxxv] Robert Faurisson v. France, App. No. 550/1993 (1996).
[xxxvi] International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966, available at http://www2.ohchr.org/english/law/ccpr.htm.
[xxxvii] General Comment No. 10: Freedom of expression (Art. 19), available at http://www2.ohchr.org/english/bodies/hrc/comments.htm.
[xxxviii] Constitutional Court of Spain Judgment No. 235/2007 (7 Nov. 2007), available at http://www.tribunalconstitucional.es/ES/JURISPRUDENCIA/RESTRAD/Paginas/JCC2352007en.aspx.
[xxxix] See e.g. Timothy Garthon Ash, This is the moment for Europe to dismantle taboos, not erect them, The Guardian online (19 Oct. 2006) available at http://www.guardian.co.uk/commentisfree/2006/oct/19/comment.france; Editorial, Turkey, Armenia and Denial, The New York Times online (16 May 2006) available at http://www.nytimes.com/2006/05/16/opinion/16tue3.html.
[xl] The charges against the writer caused an international outcry and led to public reaction of the European Parliament and the European Union. See European Parliament questions for written answer to the Commission, Subject: Turkish court judgment against Orhan Pamuk, E-003754/2011 (19 Apr. 2011), available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+WQ+E-2011-003754+0+DOC+XML+V0//EN&language=EN.
[xli] Andrew Osborn, Medvedev Creates History Commission, The Wall Street Journal online (21 May 2009) available at http://online.wsj.com/article/SB124277297306236553.html.
[xlii] Sam Greenberg, Relating to Iran, in seminar and in person. Jackson Institute fellow arranges private meeting with Iranian president for students in her graduate seminar, Yale Daily News (27Sep. 2010), available at http://www.yaledailynews.com/news/2010/sep/27/relating-to-iran-in-seminar-and-in-person/?print.