Holocaust Denial as a Legal Issue in Europe

Emilie Mendes de Leon reflects on Holocaust denial as racist speech in Europe and explains the special place it holds as a legal concept in many member states of the EU.

In the past 70 years, the term genocide has become cemented in popular and legal discourse. Its origins lie in the aftermath of the Second World War and promises of “never again”, even though as Rwanda, Yugoslavia, and Cambodia have shown us, genocide has happened “again and again”. You will find few who disagree that denying or trivializing such atrocities is inappropriate and criminal. Yet in Europe, the Holocaust, the very reason for the creation of the term genocide as well as numerous cultural and political institutions mandated to prevent such violence, is distinct from other genocides in law. Holocaust denial is different because it has become a part of anti-Semitic discourse in Europe while the denial of other genocides has not. Therefore, punishment specifically reflects the particularity of Holocaust denial as an expression of racism in Europe.

In the late 1980s and early 1990s, acts such as French politician Jean-Marie Le Pen decrying the gas chambers as “a detail of history” on public radio and the popularisation of books by Holocaust deniers such as David Irving and Arthur Butz gave way to legislation prohibiting denial of the Holocaust in the 1990s. The French legislature passed the Loi Gayssot in 1990, Austria passed similar legislation in 1992, and Germany did the same in 1994. Since then, nine other Member States have introduced provisions explicitly prohibiting denial of the Holocaust or acts by the National Socialist Regime in Germany.

However, even in the absence of specific laws banning Holocaust denial, other national courts and the European Court of Human Rights have also emphasized the particularity of the Holocaust. Though framed by each country’s particular experience, cases in Belgium and Germany demonstrate that the national courts generally treat the Holocaust differently. In a 1980 ruling, before German legislation explicitly prohibited Holocaust denial, the Bundesgerichtshof argued that Holocaust denial was an “assault to the dignity of every Jew in Germany” considering their “special relationship vis-à-vis their fellow citizens” to which all others have “a special moral responsibility.” In the Belgian case, Verbeke et Delbouille, the court ruled that Holocaust denial threatens stable democracy and insults the Jewish people. In the Garaudy case, the European Court of Human Rights (ECtHR) called Holocaust denial “one of the most serious forms of racial defamation of Jews and of incitement to hatred against them.”

Although other genocides, specifically the Armenian genocide by the Ottomans in 1915, have been recognized by many states for decades, only recently have there been attempts to criminalize denial of specific genocides other than the Holocaust. Switzerland, France, Slovakia, and Greece have passed laws explicitly banning denial of the Armenian genocide, but some of these laws have faced trouble. The French Conseil Constitutional struck down the French law in 2012 shortly after it was passed, and in a challenge of the Swiss law, the European Court of Human Rights found that denying the Armenian genocide was not an abuse of right to freedom of expression in the way that Holocaust denial was. The Court reasoned that calling the Armenian genocide an “international lie” was not of a nature to incite hatred towards the Armenians nor was it contrary to the spirit of the European Convention on Human Rights.

The European Union includes denial crimes in a Framework Decision (legislation that addressed criminal justice matters before the Lisbon Treaty) on racism and xenophobia. The Framework Decision requires Member States to punish acts “publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity, and war crimes as defined… in the Statute International Criminal Court” and in a separate clause requires Member States to punish “condoning, denying or grossly trivialising” the Holocaust. Here Holocaust denial is presented separately from other crimes of genocide, and 12 Member States have implemented laws explicitly addressing Holocaust denial.

It is worth noting that the Spanish Tribunal Constitucional has found that “mere” denial of the Holocaust is not necessarily an affront to dignity. In Spain, Holocaust denial must be accompanied by contempt or incitement to hatred in order to be punishable within the meaning of the criminal code. Qualifiers in the text of the Framework Decision do allow Member States to limit punishment of genocide denial to cases where it is likely “to incite to violence or hatred,” “likely to disturb public order,” or “threatening, abusive or insulting.” However, even in other states which take a broad interpretation of freedom of expression, such as the UK and Denmark, the courts have treated Holocaust denial as hate speech. The European Court of Human Rights agrees with Spain when it comes to genocides, but the Garaudy ruling makes clear that Holocaust denial ipso facto is an incitement to hatred. In this regard, the Tribunal Constitucional stands alone.

This special place of the Holocaust in the history of several Member States and the European integration project as well as the rulings by the European Court of Human Rights justify the acceptance of Holocaust denial as a racist crime in Europe. Denial of other genocides, while offensive, could still be effectively prosecuted under hate speech laws of Member States if it were threatening or incited violence. However, in most states, denying other genocides does not constitute a racist crime ipso facto because their denial or minimization has not emerged as an expression of racism. Holocaust denial has been accepted as a racist crime in the legislations of many Member States, in the national courts, and in the European Court of Human Rights. Denial of other genocides, while terrible, has not yet emerged as an inherent expression of racism in experience or practice. Consequently, it does not appear as such in law.

Cover and In-text Image: ‘flowers’ courtesy to Paolo Dallorso, released via flickr.com under creative commons 2.0. No changes were made.