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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
condemning denial of the Holocaust.
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 is an editor for euro|topics. She
studied German studies and History before going
on to work as a cultural editor at the tageszeitung ...