Posted By admin on October 22, 2021
Laws against Holocaust denial
Sixteen European countries and Israel have laws against Holocaust denial, the denial of the systematic genocidal killing of approximately six million Jews in Europe by Nazi Germany in the 1930s and 1940s. Many countries also have broader laws that criminalize genocide denial. Among the countries that ban Holocaust denial, Austria, Germany, Hungary, Poland and Romania also ban other elements associated with Nazism, such as the display of Nazi symbols.
Laws against Holocaust denial have been proposed in many other countries (in addition to those nations that have criminalized such acts) including the United States and the United Kingdom. Such proposed laws have been criticised and faced opposition, most significantly from civil rights and human rights advocates who contend that such laws would violate people's established rights of freedom of speech and freedom of expression. Organizations representing the groups victimized during the Holocaust have generally been split in opinion about such proposed laws.
Some courts in the United States, Germany and the United Kingdom have taken judicial notice that the Holocaust occurred.
Along with genocide denial, attempts to justify genocide are punishable in several countries.
Scholars have pointed out that countries that specifically ban Holocaust denial generally have legal systems that limit speech in other ways, such as banning "hate speech". According to D. D. Guttenplan, this is a split between the "common law countries of the United States, Ireland and many British Commonwealth countries from the civil law countries of continental Europe and Scotland. In civil law countries the law is generally more proscriptive. Also, under the civil law regime, the judge acts more as an inquisitor, gathering and presenting evidence as well as interpreting it".[1] Michael Whine argues that Holocaust denial can inspire violence against Jews; he states, "Jews' experience in the post-World War II era suggests that their rights are best protected in open and tolerant democracies that actively prosecute all forms of racial and religious hatred".[2]
Jnos Kis[3] and in particular Andrs Schiffer[4] feel the work of Holocaust deniers should be protected by a universal right to free speech. An identical argument was used[5] by the Hungarian Constitutional Court (Alkotmnybrsg) led by Lszl Slyom when it struck down a law against Holocaust denial in 1992. The argument that laws punishing Holocaust denial are incompatible with the European Convention on Human Rights and the Universal Declaration of Human Rights have been rejected by institutions of the Council of Europe (the European Commission of Human Rights,[6] the European Court of Human Rights[7]) and also by the United Nations Human Rights Committee.[8]
Historians who oppose such laws include Raul Hilberg,[9] Richard J. Evans, Pierre Vidal-Naquet, and Timothy Garton Ash.[10] Other prominent opponents include Christopher Hitchens, Peter Singer,[11] and Noam Chomsky,[12] who wrote:
It seems to me something of a scandal that it is even necessary to debate these issues two centuries after Voltaire defended the right of free expression for views he detested. It is a poor service to the memory of the victims of the holocaust to adopt a central doctrine of their murderers.[13]
An uproar resulted when Serge Thion used one of Chomsky's essays without explicit permission as a foreword to a book of Holocaust denial essays (see Faurisson affair).
In January 2019, in an interview in The New Yorker in connection with the publication of her book, Antisemitism: Here and Now, Holocaust historian Deborah E. Lipstadt expressed her opposition to laws against expressing Holocaust denial:
I still am a firm opponent of laws against Holocaust denial. First of all, I'm a pretty fierce advocate of the First Amendment. Having been sued for libel, and having had that in my life for about six years, I'm more than ever. Even though libel is not covered by the First Amendment, [David Irving] wouldn't have been able to sue me in this country because he was a public figure.
But I also don't think that these laws are efficacious. Forget the morality I don't think they work. I think they turn whatever is being outlawed into forbidden fruit. We saw it in Germany, when Mein Kampf was released from the embargo on it a few years ago. People bought it because suddenly it was something they could get ahold of. I just don't think these laws work. And the third reason I'm opposed to them is I don't want politicians making a decision on what can and cannot be said. That scares me enormously.[14]
These laws have also been criticized on the grounds that education is more effective than legislation at combating Holocaust denial and that the laws will make martyrs out of those imprisoned for their violation.[15]
While Australia lacks a specific law against Holocaust denial, Holocaust denial is prosecuted in Australia under various laws against "hate speech" and "racial vilification".[16][17] Fredrick Tben was found guilty at Australia's Federal Court of contempt in 2009 for not following a court order in 2002 to desist from publishing anti-semitic material on his Adelaide Institute website. The material queried whether the Holocaust happened, as well as the presence of gas chambers at the Auschwitz death camps.[18]
In Austria, the Verbotsgesetz 1947 provided the legal framework for the process of denazification in Austria and suppression of any potential revival of Nazism. In 1992, it was amended to prohibit the denial or gross minimisation of the Holocaust.
National Socialism Prohibition Law (1947, amendments of 1992)
3g. He who operates in a manner characterized other than that in 3a 3f will be punished (revitalising of the NSDAP or identification with), with imprisonment from one to up to ten years, and in cases of particularly dangerous suspects or activity, be punished with up to twenty years' imprisonment.[19]
3h. As an amendment to 3 g., whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media.[20]
In Belgium, Holocaust denial was made illegal in 1995.
Negationism Law (1995, amendments of 1999)
Article 1 Whoever, in the circumstances given in article 444 of the Penal Code denies, grossly minimises, attempts to justify, or approves the genocide committed by the German National Socialist Regime during the Second World War shall be punished by a prison sentence of eight days to one year, and by a fine of twenty six francs to five thousand francs. For the application of the previous paragraph, the term genocide is meant in the sense of article 2 of the International Treaty of 9 December 1948 on preventing and combating genocide. In the event of repetitions, the guilty party may in addition have his civic rights suspended in accordance with article 33 of the Penal Code.
Art.2 In the event of a conviction on account of a violation under this Act, it may be ordered that the judgement, in its entity or an excerpt of it, is published in one of more newspapers, and is displayed, to the charge of the guilty party.
Art.3. Chapter VII of the First Book of the Penal Code and Article 85 of the same Code are also applicable to this Act.
Art. 4. The Centre for Equal Opportunities and Opposition to Racism, as well as any association that at the time of the facts had a legal personality for at least five years, and which, on the grounds of its statutes, has the objective of defending moral interests and the honour of the resistance or the deported, may act in law in all legal disputes arising from the application of this Act.[21]
In May 2007 Ekrem Ajanovic, a Bosniak MP in the Bosnian Parliament proposed a legislation on criminalizing the denial of Holocaust, genocide and crimes against humanity. This was the first time that somebody in Bosnia and Herzegovina's Parliament proposed such a legislation. Bosnian Serb MPs voted against this legislation and proposed that such an issue should be resolved within the Criminal Code of Bosnia and Herzegovina.[22] Following this, on 6 May 2009 Bosniak MPs Adem Huskic, Ekrem Ajanovic and Remzija Kadric proposed to the BH parliament a change to the Criminal Code of Bosnia and Herzegovina where Holocaust, genocide and crimes against humanity denial would be criminalized.[23] Bosnian Serb MPs have repeatedly been against such a legislation claiming that the law "would cause disagreement and even animosity" according to SNSD member Lazar Prodanovic.[24]
On 23 July 2021, the High Representative of Bosnia and Herzegovina Valentin Inzko passed a law using the Bonn Powers given to him banning the denial of Genocides, Crimes against Humanity and War Crimes.[25]
In the Czech Republic, Holocaust denial and denial of communist-perpetrated atrocities is illegal.
Law Against Support and Dissemination of Movements Oppressing Human Rights and Freedoms (2001)
405 Anyone who publicly denies, disputes, approves or attempts to justify a Nazi, Communist or other genocide or Nazi, Communist or other crimes against humanity or war crimes or crimes against peace will be punished by imprisonment for six months to three years.[26]
In France, the Gayssot Act, voted for on July 13, 1990, makes it illegal to question the existence of crimes that fall in the category of crimes against humanity as defined in the London Charter of 1945, on the basis of which Nazi leaders were convicted by the International Military Tribunal at Nuremberg in 194546. When the act was challenged by Robert Faurisson, the Human Rights Committee upheld it as a necessary means to counter possible antisemitism.[27] Similarly, the applications of Pierre Marais and Roger Garaudy were rejected by the European Court of Human Rights, in 1996 and 2003.[28]
In 2012, the Constitutional Council of France ruled that to extend the Gayssot Act to the Armenian genocide denial was unconstitutional because it violated the freedom of speech.[29][30] The Gayssot Act itself, however, was found consistent with the Constitution four years later.[31]
LAW No 90-615 to repress acts of racism, anti-semitism and xenophobia (1990)
MODIFICATIONS OF THE LAW OF JULY 29, 1881 ON THE FREEDOM OF THE PRESSArt 8. Article 24 of the Law on the Freedom of the Press of 29 July 1881 is supplemented by the following provisions:In the event of judgment for one of the facts envisaged by the preceding subparagraph, the court will be able moreover to order:Except when the responsibility for the author of the infringement is retained on the base for article 42 and the first subparagraph for article 43 for this law or the first three subparagraphs for article 93-3 for the law No 82-652 for July 29, 1982 on the audio-visual communication, the deprivation of the rights enumerated to the 2o and 3o of article 42 of the penal code for imprisonment of five years maximum;
Art 9. As an amendment to Article 24 of the law of July 29, 1881 on the freedom of the press, article 24 (a) is written as follows:
Art. 24 (a). [] those who have disputed the existence of one or more crimes against humanity such as they are defined by Article 6 of the statute of the international tribunal military annexed in the agreement of London of August 8, 1945 and which were carried out either by the members of an organization declared criminal pursuant to Article 9 of the aforementioned statute, or by a person found guilty such crimes by a French or international jurisdiction shall be punished by one month to one year's imprisonment or a fine.
Art 13. It is inserted, after article 48-1 of the law of July 29, 1881 on the freedom of the press, article 48-2 thus written:
Art. 48-2. [] publication or publicly expressed opinion encouraging those to whom it is addressed to pass a favourable moral judgment on one or more crimes against humanity and tending to justify these crimes (including collaboration) or vindicate their perpetrators shall be punished by one to five years' imprisonment or a fine.[32]
In Germany, Volksverhetzung ("incitement of the people")[33][34] is a concept in German criminal law that bans incitement to hatred against segments of the population. It often applies to (though not limited to) trials relating to Holocaust denial in Germany. In addition, Strafgesetzbuch 86a outlaws various symbols of "unconstitutional organisations", such as Nazi symbolism or the ISIL flag.
130 Incitement to hatred (1985, Revised 1992, 2002, 2005, 2015)[35][36]
(1) Whosoever, in a manner capable of disturbing the public peace:
shall be liable to imprisonment from three months to five years.[35][36]
[]
(3) Whosoever publicly or in a meeting approves of, denies or downplays an act committed under the rule of National Socialism of the kind indicated in section 6 (1) of the Code of International Criminal Law, in a manner capable of disturbing the public peace shall be liable to imprisonment not exceeding five years or a fine.[35][36]
(4) Whoever publicly or in a meeting disturbs the public peace in a manner which violates the dignity of the victims by approving of, glorifying or justifying National Socialist tyranny and arbitrary rule incurs a penalty of imprisonment for a term not exceeding three years or a fine.[35][36]
The definition of section 6 of the Code of Crimes against International Law referenced in the above 130 is as follows:
6 Genocide
(1) Whoever with the intent of destroying as such, in whole or in part, a national, racial, religious or ethnic group:
The following sections of the German criminal code are also relevant:
189 Disparagement of the Memory of Deceased Persons (1985, amendments of 1992)Whoever disparages the memory of a deceased person shall be punished with imprisonment for not more than two years or a fine.[38]
194 Application for Criminal Prosecution
(1) An insult shall be prosecuted only upon complaint. If the act was committed through dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a meeting or through a presentation by radio, then a complaint is not required if the aggrieved party was persecuted as a member of a group under the National Socialist or another rule by force and decree, this group is a part of the population and the insult is connected with this persecution. The act may not, however, be prosecuted ex officio if the aggrieved party objects. When the aggrieved party deceases, the rights of complaint and of objection devolve on the relatives indicated in Section 77 subsection (2). The objection may not be withdrawn.
(2) If the memory of a deceased person has been disparaged, then the relatives indicated in Section 77 subsection (2), are entitled to file a complaint. If the act was committed through dissemination of writings (Section 11 subsection (3)) or making them publicly accessible in a meeting or through a presentation by radio, then a complaint is not required if the deceased person lost his life as a victim of the National Socialist or another rule by force and decree and the disparagement is connected therewith. The act may not, however, be prosecuted ex officio if a person entitled to file a complaint objects. The objection may not be withdrawn. [][39]
The German Federal Supreme Court has, in at least one case, taken judicial notice that the Holocaust occurred.[40]
In September 2014, with a vote of 54 out of 99 present of the 300-member Hellenic Parliament (the body was in summer session at the time), Greece amended its 1979 law 'On the penalization of actions or activities intending unto racial discrimination' (N.927/1979) to make malicious denial of the Holocaust and other crimes against humanity for the purposes of inciting violence, discrimination or hatred or by way of threat or insult, a criminal offense.[41] In contrast to other European countries, the Greek law is not a blanket ban on expressing the opinion that a genocide did not take place, but rather requires an additional condition of intending to cause violence, incite hatred or threaten or insult a protected group.
LAW 927/1979 (as amended by Law 4285/2014)
Article 1 Public incitement of violence or hatred
1. Whoever intentionally, publicly, verbally or in print, over the internet or through any other medium or means, incites, causes, arouses or solicits acts or activities which are capable of causing discrimination, hatred or violence against a person or group of persons, who are identified on the bases of race, colour, religion, genealogical background, national or ethnic origins, sexual orientation, gender identity or disability, in a way that endangers public order or poses a threat to the life, liberty or bodily integrity of such persons, shall be imprisoned for between three (3) months and (3) years and fined between five and twenty thousand (5.000 - 20.000) euros.
[]
Article 2 Public approval or denial or crimes
1. Whoever intentionally, publicly, verbally or in print, over the internet or through any other medium or means, approves, ridicules or maliciously denies the existence or seriousness of crimes of genocide, war crimes, crimes against humanity, the Holocaust and other crimes of Nazism which have been recognised by decisions of international courts or the Hellenic Parliament and this behaviour is targeted against a group of people, or member thereof, which is identified on the basis of race, colour, religion, genealogical background, national or ethnic origins, sexual orientation, gender identity or disability, when this behaviour is expressed in a way that is capable of inciting violence or hatred or is of a threatening or insulting character against such a group or a member thereof, is subject to the penalties of paragraph 1 of the previous article.[42]
This law was harshly criticised at the time of its passage for its vague language and alleged infringement of freedom of expression. In a letter signed by 139 Greek historians, they argued that "as international experience has shown, such provisions lead down dangerous paths: they critically wound the democratic and inalienable right to freedom of speech, while simultaneously not being at all effective in terms of fighting racism and nazism. Indeed, they often lead to the opposite result, allowing the enemies of democracy to present themselves to public opinion as "victims" of censorship and authoritarianism. The conditions set forth in the bill, being highly vague and fluid, are unfortunately not a guarantee."[43]
The first prosecution under Article 2 of the law was brought against German historian Heinz A. Richter, who was tried in absentia for denying Nazi atrocities in Crete during World War II. The court found Richter not guilty on the grounds that, while his work was proven to contain historical inaccuracies, there was no evidence he intended to incite hatred against the people of Crete [44] and that the 2014 law was unconstitutional, as it violated the principle of freedom of speech.[45] Though the finding of unconstitutionality is not finally binding, as it was issued by a court of first instance, as of March 2018, no one has been successfully convicted in Greece for genocide denial under this law.[46]
The National Assembly of Hungary declared the denial or trivialization of the Holocaust a crime punishable by up to three years' imprisonment on February 23, 2010.[47] The law was signed by President Lszl Slyom in March 2010.[48] On June 8, 2010, the newly elected Fidesz-dominated parliament changed the formulation of the law to "punish those, who deny the genocides committed by national socialist or communist systems, or deny other facts of deeds against humanity".[49]
In 2011, the first man was charged with Holocaust denial in Budapest. The Court sentenced the man to 18 months in prison, suspended for three years, and probation. He also had to visit either Budapest's memorial museum, Auschwitz or Yad Vashem in Jerusalem. He chose his local Holocaust Memorial Center and had to make three visits in total and record his observations.[50]
In January 2015, the court ordered far-right on-line newspaper Kuruc.info to delete its article denying the Holocaust published in July 2013, which was the first ruling in Hungary of its kind.[51] The Association for Civil Liberties (TASZ) offered free legal aid to the website as a protest against restrictions on freedom of speech,[52] but the site refused citing the liberal views of the association, and also refused to delete the article.[53]
In Israel, a law to criminalize Holocaust denial was passed by the Knesset on July 8, 1986.
Denial of Holocaust (Prohibition) Law, 5746-1986
Definitions 1. In this Law, "crime against the Jewish people" and "crime against humanity" have the same respective meanings as in the "Nazis and Nazi Collaborators Law", 5710-1950.
Prohibition of Denial of Holocaust 2. A person who, in writing or by word of mouth, publishes any statement denying or diminishing the proportions of acts committed in the period of the Nazi regime, which are crimes against the Jewish people or crimes against humanity, with intent to defend the perpetrators of those acts or to express sympathy or identification with them, shall be liable to imprisonment for a term of five years.
Prohibition of publication of expression for sympathy for Nazi crimes 3. A person who, in writing or by word of mouth, publishes any statement expressing praise or sympathy for or identification with acts done in the period of the Nazi regime, which are crimes against the Jewish people or crimes against humanity, shall be liable to imprisonment for a term of five years.
Permitted publication 4. The publication of a correct and fair report of a publication prohibited by this Law shall not be regarded as an offence thereunder so long as it is not made with intent to express sympathy or identification with the perpetrators of crimes against the Jewish people or against humanity.
Filing of charge 5. An indictment for offences under this Law shall only be filed by or with the consent of the Attorney-General.[54]
The Italian parliament, extending an anti-racism law from 1975, approved Law 16 June 2016 n. 115, criminalizing the spreading of Holocaust denial and making conviction for the crime subject to imprisonment for two to six years.[55][56]
Although not specifically outlining national socialist crimes, item five of section 283 of Liechtenstein's criminal code prohibits the denial of genocide.
283 Race discriminationWhoever publicly denies, coarsely trivialises, or tries to justify genocide or other crimes against humanity via word, writing, pictures, electronically transmitted signs, gestures, violent acts or by other means shall be punished with imprisonment for up to two years.[57]
In Lithuania, approval and denial of Nazi or Soviet crimes is prohibited.
170(2) Publicly condoning international crimes, crimes of the USSR or Nazi Germany against the Republic of Lithuania and her inhabitants, denial or belittling of such crimes.[58]
In Luxembourg, Article 457-3 of the Criminal Code, Act of 19 July 1997 outlaws Holocaust denial and denial of other genocides.[59] The punishment is imprisonment for between 8 days and 6 months and/or a fine.[59] The offence of "negationism and revisionism" applies to:
...anyone who has contested, minimised, justified or denied the existence of war crimes or crimes against humanity as defined in the statutes of the International Military Tribunal of 8 August 1945 or the existence of a genocide as defined by the Act of 8 August 1985. A complaint must be lodged by the person against whom the offence was committed (victim or association) in order for proceedings to be brought, Article 450 of the Criminal Code, Act of 19 July 1997.[59]
While Holocaust denial is not explicitly illegal in the Netherlands, the courts consider it a form of spreading hatred and therefore an offence.[60] According to the Dutch public prosecution office, offensive remarks are only punishable by Dutch law if they equate to discrimination against a particular group.[61] The relevant laws of the Dutch penal code are as follows:
Article 137c
Article 137d
In Poland, Holocaust denial and the denial of communist crimes is punishable by law.
Act of 18 December 1998 on the Institute of National Remembrance Commission for the Prosecution of Crimes against the Polish Nation (Dz.U. 1998 nr 155 poz. 1016)
Article 55He who publicly and contrary to facts contradicts the crimes mentioned in Article 1, clause 1 shall be subject to a fine or a penalty of deprivation of liberty of up to three years. The judgment shall be made publicly known.
Article 1This Act shall govern:1. the registration, collection, access, management and use of the documents of the organs of state security created and collected between 22 July 1944 and 31 December 1989, and the documents of the organs of security of the Third Reich and the Union of Soviet Socialist Republics concerning:
2. the rules of procedure as regards the prosecution of crimes specified in point 1 letter a),3. the protection of the personal data of grieved parties, and
4. the conduct of activities as regards public education.[64]
Although denial of the Holocaust is not expressly illegal in Portugal, Portuguese law prohibits denial of war crimes if used to incite to discrimination.
Article 240: Racial, religious, or sexual discrimination
[]
2 Whoever in a public meeting, in writing intended for dissemination, or by any means of mass media or computer system whose purpose is to disseminate:
with intent to incite to racial, religious or sexual discrimination or to encourage it, shall be punished with imprisonment from six months to five years.[65]
In Romania, Emergency Ordinance No. 31 of March 13, 2002 prohibits Holocaust denial. It was ratified on May 6, 2006. The law also prohibits racist, fascist, xenophobic symbols, uniforms and gestures: proliferation of which is punishable with imprisonment from between six months to five years.
Emergency Ordinance No. 31 of March 13, 2002
[...]
Article 3. (1) Establishing a fascist, racist or xenophobic organisation is punishable by imprisonment from 5 to 15 years and the loss of certain rights.
[...]
Article 4. (1) The dissemination, sale or manufacture of symbols either fascist, racist or xenophobic, and possession of such symbols is punished with imprisonment from 6 months to 5 years and the loss of certain rights.
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