Expanding Holocaust Denial and Legislation Against It

, April 27, 2008

Jewish Political Studies Review 20:1-2 (Spring 2008)

 

Over half the states of Europe now criminalize Holocaust denial. They accept the premise that deniers are extremists who use denial, among other means, to rehabilitate Nazism. Their legal rationale in doing so is usually that denial negates the historical facts established at Nuremburg in 1945 rather than that it constitutes offensive or threatening speech. International agreements take the same line and this was reinforced and given a legal basis in April 2007 by the EU Common Framework Decision, which requires European states to criminalize denial. Legislation, however, has not stopped extremists from continuing to promote Holocaust denial and they are now joined and invigorated by Iran, which promotes it as state policy. Nevertheless, states now accept that Holocaust education is vital and several intergovernmental initiatives offer hope for the future.

Holocaust deniers, and the media they use, are changing as a consequence of international political developments. It is necessary to update earlier analyses by this author of Holocaust denial in the United Kingdom.1 Those works noted, to begin with, that the media for promoting denial had been revamped in light of technological advances, just as the nature of the propaganda itself was changing. New forms of this propaganda encompassed pseudoscientific books and papers; crude denial material, usually published in leaflet form by small neo-Nazi groups; and what can be called political denial, which includes the most recent and increasingly potent source, namely, Islamists as well as Internet and television transmissions within some Muslim states.

Many of the pseudoscientific publications available internationally were published under cover of fictitious academic publishing houses. These works included, for example, The Hoax of the Twentieth Century by Arthur Butz, Did Six Million Really Die? by Richard Harwood, and The Leuchter Report. Historians challenged these and rebutted their false theses.

The very public destruction of David Irving’s already tarnished reputation, as a result of his libel case against Deborah Lipstadt, effectively undermined the position of the pseudoscientific deniers, as did the more recent conviction of Germar Rudolf.2 Some years ago Fred Leuchter attempted to prove technically that Zyklon B was not used in the gas chambers. His lack of any engineering qualification was the subject of a successful criminal action in the American courts and his capacity to comment was curtailed.3

In Britain, distribution of the crude leaflets published by Lady Jane Birdwood’s English Solidarity Organisation, Combat 18, and the National Front was halted after the criminal convictions of some of the main actors. These only took place after the Criminal Justice and Public Order Act (1994) and the Crime and Disorder Act (1998) came into force.4 These measures gave the police powers of arrest for the distribution of material that incites racial hatred, and of immediate arrest without a warrant for suspected racially motivated public-order offenses. They effectively put a stop for some years to the widespread dissemination of Holocaust-denial material in Britain by the far Right.

Thus, whereas in the 1980s and 1990s Britain became a world center for publishing Holocaust-denial material, in many languages and for many markets, the British courts have successfully prosecuted such works despite the lack of specific Holocaust-denial legislation, where it contained material that incited hatred against Jews.5

This author’s previous work also reviewed the genesis and progress of international agreements against anti-Semitism and Holocaust denial, including that promoted online. In this regard, too, there are new developments.

Holocaust Denial and the Internet

An increasing amount of Holocaust denial and trivialization propaganda comes from the Middle East. It is being transmitted primarily through the Internet, and also through print media and television. This, in turn, appears to be encouraging the far Right in several countries to resume promoting denial after a lull of several years, and even after the criminal convictions of some of its earlier proponents.

Holocaust trivialization and inversion have also become more common, possibly because outright denial itself has been criminalized in some jurisdictions.6 The trivialization argument is usually that far fewer Jews were murdered from 1939 to 1945 than the generally agreed figure of around six million, that the majority died of illness contracted in the death camps, or that the plight of the Palestinians in 1948 was worse than what befell the Jews. The inversion argument portrays Israel and the Jews’ behavior toward the Palestinians as being at least as bad as that of the Nazis toward the Jews.

In all cases the logic follows a similar route: to shift the moral responsibility for genocide, and to portray the victims as the new perpetrators. The promoters of these arguments come from a wider range than the outright deniers and may include the Arab and Muslim states, nonstate propagandists within those countries, as well as some ideologues and activists on the political far Left.7

The promotion via the Internet of Holocaust denial, trivialization, and inversion poses new challenges. The founders of the Internet intended it to be a domain for free speech, unhindered by any restrictive legislation. Over the past ten years this ethos has been challenged by antiracist and Jewish NGOs, and recently by some governments concerned that political extremists have seized on the freedoms of cyberspace to spread incitement and hatred. Of increasing concern is that those most influenced are the young, who may be less able to differentiate authoritative and factual material from propaganda.8 The governments of those countries most affected by the Nazi takeover of Europe, and the Holocaust, have most strongly called for legislation to criminalize denial propaganda, including that online.

A second challenge posed by online Holocaust denial is one of jurisdiction, even if states have laws that criminalize it. Canada, Australia, France, and Germany, adopting different approaches, have recently brought successful criminal prosecutions against deniers, and the sites that published their material, within their own jurisdictions. But jurisdictions stop at states’ borders.

Hence, denial and racist sites have relocated to jurisdictions where no supervisory regime exists or where there are no legal sanctions. One of the Internet’s founding fathers recently asserted that the Internet should not allow itself to be used for hate promotion.9 Nevertheless, the influence of the First Amendment to the U.S. Constitution plays an important part in determining international attitudes toward online hate. Internet service providers in the United States and elsewhere, however, have generally proved responsive to criticism that they host denial and other hate sites, and have enforced contractual nonhate terms-of-service obligations on users.10

International Agreements

Diplomatic pressure from some states, and particularly from NGOs, has prompted European intergovernmental organizations to pass resolutions and conclude agreements commemorating the Holocaust and condemning its denial or trivialization. These include: the Declaration of the Stockholm International Forum on the Holocaust, by which the signatory states agreed to institute educational programs and national commemorative initiatives; the European Parliament Resolution on remembrance of the Holocaust, anti-Semitism and racism; and the various declarations of the Organization for Security and Cooperation in Europe (OSCE), including the Permanent Council Resolution (2004), the Berlin Declaration (2004), the Cordoba Declaration (2005), the Brussels Declaration of the OSCE Parliamentary Assembly (2006), and a resolution passed by the Parliamentary Assembly of the Council of Europe in 2007.11

In 2005, the European Monitoring Centre on Racism and Xenophobia (EUMC) (reconstituted in March 2007 as the European Union Agency for Fundamental Rights) published the Working Definition of Antisemitism, intended as a guide for criminal justice agencies. The RAXEN network of focal points monitoring racist violence identifies Holocaust denial as a specific form of anti-Semitism.

The Working Definition notes, among other things, that:

Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to:

Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).12

At the international level, the United Nations was finally persuaded to address the issue of the Holocaust. In 2005, it established 27 January as the International Day of Commemoration in Memory of Victims of the Holocaust. It now marks this day annually at Security Council headquarters in New York.13 In January 2007, the UN General Assembly unanimously passed a resolution condemning Holocaust denial, with only Iran dissenting.

This states:

Noting that 27 January has been designated by the United Nations as the annual International Day of Commemoration in memory of the victims of the Holocaust,

1. Condemns without reservation any denial of the Holocaust;

2. Urges all Member States unreservedly to reject any denial of the Holocaust as a historical event, either in full or in part, or any   activities to this end.14

A recent poll of the OSCE’s fifty-six member states reported that thirty-nine (71 percent) have now established a Holocaust Memorial Day (HMD) or commemorate Holocaust victims. Of these, nineteen (33 percent) have HMD on 27 January and fifteen (27 percent) on a different day; six (11 percent) incorporate commemoration of Holocaust victims into their national memorial days.15

Thus, Holocaust denial is now universally recognized as a specific form of hate. Many states deem it to constitute criminal behavior that is subject to sanction. Until recently, however, the Additional Protocol to the Council of Europe Convention on Cybercrime had been the only international agreement requiring states to criminalize denial. Article 6 of the Additional Protocol states:

1. Each Party shall adopt such legislative measures as may be necessary to establish the following conduct as criminal offences under its domestic law, when committed intentionally and without right: Distributing or otherwise making available, to the public through a computer system, material which denies, grossly minimises, approves or justifies acts constituting genocide or crimes against humanity, as defined by ternational law and recognised as such by final and binding decisions of the International Military Tribunal, established by the London Agreement of 8 August 1945, or any other international court established by relevant international instruments, and whose jurisdiction is recognised by that Party.

2. A Party may either

a) require that the denial or the gross minimisation referred to in paragraph 1 of this article is committed with the intent to incite hatred, discrimination or violence against any individual or group of individuals, based on race, colour, descent, or national or ethnic origin, as well as religion if used as a pretext for any of these factors, or otherwise.

b) reserve the right not to apply, in whole or in part, paragraph 1 of this article.16

To date, twenty-one states have signed this protocol and ten have ratified it.17

National Legislation

Fourteen European states have now criminalized Holocaust denial. All have adopted the basic premise that deniers are extremists who use denial as a means to rehabilitate Nazism. Thus, denial activity strikes at the heart of democratic governance in a continent that was torn apart from 1939 to 1945.

An additional consideration is that deniers use Holocaust denial to incite hatred against Jews. They usually claim that Jewish demands for reparations and restitution for property stolen during the Nazi era are specious and based on a falsification of history. There was no Holocaust, or the consequences were much less serious than Jews say they were, hence Europeans and European governments are being conned by the Jews. Almost invariably this constitutes incitement against Jews and Jewish communities, and frequently has led to violence against Jews and Jewish institutions. Again this undermines fundamental concepts of civil liberty and fundamental rights.

The assumption that Jewish organizations urge legislation against Holocaust denial because it constitutes offensive speech is not completely correct.  They also do so because they know from experience that the Jews are always the first in line; a society’s treatment of its Jews is a paradigm for how it will treat all minorities. 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. Holocaust survivors themselves have been an important source of support for legislation. In France, for example, they have pressed for prosecutions under the Gayssot Act of 1990 (see note 21 below)

The European states that now criminalize Holocaust denial posit that such denial constitutes an attempt to justify crime, incites hate crime, or seeks to undermine the findings of the International Military Tribunal of August 1945 (the Nuremberg Tribunal). Criminal prosecutions have also taken place in Canada and Australia, but using other legislation. In both cases, though in different ways, this legislation addresses the issue of “offending speech” to a defined section of the community.

In Austria, article 3h of the Prohibition Act (Verbotzgesetz) states that:

a person shall also be liable to a penalty under Act 3g if, in print or a broadcast, or in some other medium, or otherwise publicly in any manner accessible to a large number of people, he denies the National Socialist genocide, or other National Socialist crimes against humanity, or seeks to minimise them in a coarse manner, or consents thereto or to justify them.

Punishment is by imprisonment for one to ten years, and if the offender or his activities are considered particularly dangerous, for up to twenty years.18

In Belgium, article 1 of the law of 23 March 1995 states that:

Whoever, in one of the circumstances indicated by Article 444 of the   Penal Code, denies, grossly minimises, tries to justify or approves of   the genocide committed by the German National-Socialist regime during the Second World War will be punished by imprisonment of 8 days to 1 year, and to a fine of up to 5000 francs.19

In the Czech Republic, article 261a of the amended constitution of 16 December 1992 states that:

the person who publicly denies, puts in doubt, approves or tries to justify Nazi or communist genocide, or other crimes against humanity of Nazis or communists will be punished by prison of 6 months to 3 years.20

In France, article 24 bis of the amended Press Act of 29 July 1881 states that:

those who have disputed, by one of the means stated in article 23A, the existence of one or more crimes against humanity as they are defined by the article of the statute of the International Military Tribunal, annexed to the London Agreement of 8 August 1945, and which were committed by members of an organisation declared criminal by the application of Article 9 of the above-mentioned statute or by a person found guilty of such crimes by a French or an international tribunal, will be punished with the penalties foreseen by the sixth paragraph of the Article 24.21

In Germany, article 130 of the amended Penal Code of the Federal Republic of Germany states that:

(3) Whoever publicly, or at a meeting, denies, diminishes, or approves of an act committed under the regime of National Socialism, of the kind described in article 220A, paragraph 2, in a way likely to disturb public peace, shall be punished by imprisonment up to 5 years, or a monetary fine.22

In Liechtenstein, article 283 of the Penal Code states that:

Public denial or trivialisation or attempts to justify genocide or other crimes against humanity constitute a criminal act.23

In Lithuania, Holocaust denial is illegal with prison sentences of two to ten years and a fine.24

In Luxembourg, Article 457-3 of the revised Criminal Code states that:

it is forbidden to contest, trivialise, justify or deny publicly the existence of crimes against humanity or war crimes linked to the Holocaust.25

Successful Prosecution

In the Netherlands, there is no primary legislation against Holocaust denial but article 137 of the Criminal Code, which criminalizes defamation and religious and racial incitement, has been the basis for two successful prosecutions. The first was against Siegfried Verbeke, a Belgian national whose appeal against the May 1996 verdict by a Hague court was turned down on 25 November 1997.26 The second occurred on 21 December 2004 when the District Court of Hertogenbosch convicted Ivo Janssen for having deliberately insulted Jews on his website by posting links to denial sites, including one that published Did Six Million Really Die?27

In Poland, denial of the Nazi crimes committed during 1939-1945, and of Communist-era crimes, is illegal under article 55 of the 1998 Law on the Institute of National Remembrance-Commission for the Prosecution of Crimes against the Polish Nation. This states that:

He 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.28

In Portugal, article 240(2) of the Criminal Code punishes anyone who

in a public meeting, in writing intended for dissemination, or by any other means of social communication, defames or insults an individual   or group of individuals on grounds of their race, colour, or ethnic, national or religious origin, particularly by denying war crimes and crimes against peace or humanity, with the intention of inciting to or encouraging racial or religious discrimination.29

In Romania, Emergency Ordinance 31/2002 of the Penal Code prohibits publicly denying the Holocaust and its consequences. Penalties range from fines to fifteen years’ imprisonment.30

In the Slovak Republic, an amendment to section 261 of the Criminal Code ,which punishes public sympathy for fascism or any similar movement, allows the criminal prosecution of

public negation, doubts, acceptance or justification of fascist crimes or other similar movements.31

In Switzerland, article 261 bis of the Penal Code states that:

He who publicly incites hatred or discrimination toward a person or group of persons because of their racial, ethnic or religious adherence;

He who, publicly, propagates an ideology with the intention to belittle or denigrate in a systematic manner members of a race, ethnic group or a religion;

He who, for the same reason, organises or encourages actions of propaganda or participates in them;

He who, publicly, by word of mouth, in writing, by image, by gesture, by assault or in any other way, belittles or discriminates in a way which affects the human dignity of a person or a group of persons because of their race, their ethnic belonging to their religion or who, for the same reason, denies, grossly minimises or tries to justify a genocide or other crime against humanity;

He who refuses to give to a person or group of persons, because of their racial, ethnic or religious belongings, a prestation destined for public use, shall be punished with imprisonment or with a fine. (prison: three years maximum; fine: up to Sfr. 40,000).32

In a recent setback in Spain, the Constitutional Court overturned the legislation that criminalized Holocaust denial in an appeal case initiated by far-Right activist Pedro Varela. According to government leaders, however, the legislation seems likely to be reinstated. Foreign Minister Miguel Ángel Moratinos asserted: “Even if this means changing the penal code, we must overturn this decision…. this government or any other government will never permit Spain to become a center for neo-Nazi activity.”33

Adversaries of legislation against Holocaust denial have argued that such laws restrict the basic human right of freedom of expression. An authoritative answer was given by the European Court of Human Rights (ECHR) in its judgment of 24 June 2003 against French denier Roger Garaudy. He had appealed against the dismissal of his earlier appeal by the French Court of Cassation following his conviction for several offenses involving denial.

The ECHR noted that:

There are limits to freedom of expression; the justification of a pro-Nazi policy cannot enjoy the protection of Article 10 and the denial of clearly established historical facts-such as the Holocaust-are removed by Article 17 from the protection of Article 10. As regards the applicant’s convictions for denying crimes against humanity, the Court refers to Article 17: in his book the applicant calls in question the reality, degree and gravity of historical facts relating to the Second World War which are clearly established, such as the persecution of Jews by the Nazi regime, the Holocaust and the Nuremberg trials. Denying crimes against humanity is one of the most acute forms of racial defamation towards the Jews and of incitement to hatred of them.34

The European Common Framework

The European Parliament is now moving to rationalize and make consistent European states’ laws against racial and religious hatred. Early in 2007, the German Presidency announced its plan to ensure the passage of the Common Framework Decision, which had been the subject of negotiation since 2001 and requires European states to legislate against racism in general, encompassing Holocaust denial.35 This was agreed in Luxembourg on 19 April 2007.

Article 1 of the Common Framework Decision states that:

1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: (a) publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin.

(b) the commission of an act referred to in point a) by public dissemination or distribution of facts, pictures or other material.

(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin, where the conduct is carried out in a manner likely to incite violence or hatred against such a group or a member of such a group.36

Article 1 (c) refers to denial of genocide, as defined in articles 6, 7, and 8 of the Statute of the International Criminal Court.

The Framework Decision had hitherto been held up by objections from Italy, Ireland, the UK, and some Scandinavian countries, which see blanket legislation against Holocaust denial as an infringement of the free-speech prerogative their states guarantee. To meet these objections, additions were made to the draft document that allow prosecutions only where Holocaust denial is carried out in a manner likely to incite violence or hatred (article 1 1c). This was further reinforced by a codicil stating that:

1a) For the purpose of paragraph 1 member states may choose to   punish only conduct which is either carried out in a manner likely to disturb public order, or which is threatening, abusive or insulting.

1b) For the purpose of paragraph 1, the reference to religion is intended to cover, at least, a conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent or national or ethnic origin.

2. Any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement that it will make denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) punishable only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State, or by a final decision of an international court.37

The additional clauses meet the objections raised by the UK in particular, and allow for prosecution only where Holocaust denial is intended to incite hatred. An academic publication where specific aspects of the Holocaust might be debated, however inaccurate historically, would therefore be permissible. European states now have two years to enact legislation which ratifies the Framework Decision, if they do not have laws which meet the common criteria.

Recent Convictions

The momentum to institute criminal proceedings, however, has not diminished in recent years, and some states continue to demonstrate their commitment to prosecute offenders. According to the Austrian authorities, for example, more than two hundred criminal convictions were secured under their prohibition statute from 1999 to 2006.38

Ernst Zündel, a German citizen formerly domiciled in Canada, was sentenced in February 2007 to five years on fourteen counts of incitement at his trial in Mannheim, Germany. For more than twenty years Zündel had been a prominent publisher of neo-Nazi and denial material in Canada, which he illegally exported to Germany and Austria. His first trial some months earlier had been terminated because of the behavior of his defense attorney Sylvia Stolz.39

In the 2007 trial, Stolz was finally banned from the court on the ground that she was trying to sabotage her client’s trial, and she had to be replaced. She has also now been charged with incitement, attempting to thwart a prosecution, and using symbols of a banned organization. During Zündel’s first trial she repeatedly disputed the mass murder of Jews by the Nazis, called for hatred against Jews, and ended a legal document with the words “Heil Hitler.”40

In March 2006, Germar Rudolf, whom the United States had extradited to Germany, was also convicted by a court in Mannheim for denying the Holocaust in his pseudoscientific Rudolf Report. He was sentenced to two and a half years in prison.41

In March 2007, Bruno Gollnisch, a French Member of the European Parliament and deputy head of the National Front, was fined $6,450 and given a three-month suspended sentence for publicly disputing the facts of the Holocaust. He also was ordered to pay $71,200 in compensation to those who had brought the action against him, and was suspended for five years from his teaching post at Jean Moulin University in Lyon.42

John Gudenus, a former representative of the far-Right Freedom Party in the Austrian Bundesrat, was sentenced to a year’s probation in April 2006 after publicly claiming that there were no gas chambers. He had been forced to resign from the Austrian National Council in 1995 for a similar public statement.43

In September 2006, however, in Torun, Poland, prosecutors dropped a criminal case against Radio Maryja commentator Stanislaw Michalkiewicz. They accepted that a broadcast he had made on 27 March 2006 did not constitute an intentional action ridiculing or denigrating the Holocaust, and that he had not denied the Nazi crimes in Poland. Michalkiewicz had labeled restitution efforts by Polish Jews as extortion and had belittled the facts of the Holocaust but was not guilty of a criminal offense.44

Back in December 1999, a court in Opole (Silesia) had found history professor Dariusz Rarajczak guilty of denial. He received no punishment because the book he had written, Tematy niebezpieczne (Dangerous Themes), had only a limited distribution. He was, however, barred from teaching for three years.45

In July 2007, the leader of the Hessen branch of the German National Democratic Party, Marcel Woll, was imprisoned by the Friedberg county court for publicly proclaiming that state-sponsored school trips to former concentration camps amounted to “brainwashing.”46

In August 2007, the Austrian denier Gerd Honsik was arrested in Spain in connection with an outstanding conviction for publishing books and leaflets disputing the number of Jews killed. He had fled to Malaga to escape imprisonment.47

In Greece, the public prosecutor brought a case under Law 927/1979 of the Criminal Code against Kostas Plevris, author of the book Jews: The Whole Truth and publisher of the extreme-Right weekly Eleftheros Kosmos, both of which allegedly deny the Holocaust. An amendment to this law, which criminalizes “acts or initiatives aiming at racial discrimination,” allows the public prosecutor to bring charges ex officio.48 On 13 December 2007, Plevris was convicted and sentenced to fourteen months’ imprisonment.49

In Belgium, the Forum of Jewish Organisations in Flanders filed a complaint against former senator Roeland Raes of the Vlaams Blok party (now reconstituted as the Vlaams Belang) for denying the existence of Nazi death camps during an interview on Dutch television. Raes was indicted in March 2007 and his trial was due to reconvene in December.50

In France, Vincent Reynouard was sentenced to a year’s imprisonment and fined 10,000 euros in November 2007 for denying the Holocaust in a pamphlet he had published in 2005. Holocaust? The Hidden Facts was sent to museums and town halls across the country and described the Holocaust as an “old propaganda theme.” His sentence is stated to be the heaviest  handed down to date in France.51

The Iranian Government’s Initiative

As stated, the latest and most determined impetus to promote denial comes from the Middle East. Unlike previous initiatives, this has the clear backing of governments.

In February 2006, in what was clearly an Iranian-government-initiated response to the Danish cartoon controversy, the Tehran daily Hamshahri launched an international competition to find the “best twelve cartoons about the Holocaust.” Masoud Shojai, organizer of the exhibit for the cartoons, said, “You see they allow the Prophet to be insulted. But when we talk about the Holocaust, they consider it so holy that they punish people for questioning it.”52 The winner of the competition, Abdollah Derkaoui of Morocco, received $12,000 for his work depicting an Israeli crane piling cement blocks on Israel’s security fence, on which was a picture of Auschwitz, thereby obscuring the Al-Aqsa Mosque in Jerusalem.53

The Tehran Holocaust Conference, held in December 2006 by the Iranian government, should be seen in the light of the government’s other long-term strategies. These include, among others, the Shiite challenge to the Sunni and particularly Saudi leadership of the Muslim world, extending Iranian power in the Gulf region, and the campaign to delegitimize Israel and gain control of Jerusalem. Israel having in part been established as a haven for Holocaust survivors, one aim of the Tehran conference was to cast doubt on the Holocaust and therefore on the necessity for Israel.54

The conference was organized by the hitherto respected Institute for Political and International Studies, linked to the Foreign Ministry. Sixty-seven participants came from thirty countries, and particularly noteworthy was the wide range of the participants’ backgrounds and beliefs. They included David Duke, the American white supremacist and former Ku Klux Klan leader; European neo-Nazi propagandists; members of the Jewish anti-Israeli Neturei Karta sect; Shiraz Dossa, political science professor at St. Francis Xavier University in Nova Scotia; and an anti-Hindu campaigner for Dalit (“untouchable”) rights.55

The conference came in the wake of an aborted March 2006 conference, also organized by Iranian-government-linked entities, which was abandoned when the German authorities withdrew the passports of the would-be participants from that country. As a consequence only two of the foreign invitees, the Australians Frederick Toben and Richard Krege, attended alone and instead embarked on a lecture tour of Iranian universities.56

Toward the end of the two-day December conference, the Iranian government announced the establishment of the Foundation of Holocaust Studies to promote “the study of the Holocaust”-that is, denial. The director, Mohammad Ali-Ramin, plans follow-up conferences and announced the appointment of a group of advisers who include the UK-domiciled Michelle Renouf, supporter of David Irving and other deniers.57 Other members are Christian Lindtner of Denmark, the abovementioned Frederick Toben of Australia, Serge Thion of France, and Bernhard Schaub of Switzerland.

On her return from the Tehran conference to London in early 2007, Renouf began to write and lecture on denial. Although her only audiences in Britain so far have been tiny neo-Nazi groups such as the New Right Group on 14 January and the British People’s Party on 20 January, she also has spoken in the United States and has given interviews on Iranian television.58

David Irving

The Iranian initiative coincided with renewed far-Right activity, particularly in Central and Eastern Europe where right-wing parties sometimes constitute the main parliamentary and extraparliamentary opposition. Although Holocaust denial is not part of these parties’ platforms, their presence has made it easier for David Irving, for example, to visit several countries since his early release on probation and lecture there to invited audiences. He had served eighteen months of a three-year sentence received in Austria in 2005 for Holocaust-denial offenses committed in 1989.

In January 2007, Irving visited several former death camps in Poland and carried out research for a new book.59 In March he was in Hungary, to which he had been invited by his new publishers Sandor and Tibor Gede, to launch the Hungarian version of his book Nuremberg: The Last Battle. He also spoke on 15 March at an open-air rally of the far-Right Justice and Life Party, which ended in a riot with police arresting scores of neo-Nazi demonstrators though this was after Irving had left.60

In April, Irving exhibited his books at a book fair in Barcelona and spoke at a meeting organized by the abovementioned Pedro Varela.61 However, he was denied a place at the 52nd Warsaw Book Fair after complaints to the organizers, and was asked to remove his stand and books after he had set them up.62

On 23 March, Irving was interviewed on the Italian SKY TG24 documentary program Controcorrente (Countercurrent). He claimed that engineering techniques supported his contention that mass gassings could not have occurred at Auschwitz.63 An Italian bill to outlaw denial was recently withdrawn by the government because of free-speech concerns, though Irving had been refused entry into the country during the 1990s.

Future Outcomes

Irving’s renewed activity will provide a boost to Holocaust denial. As Medoff and Grobman note:

The prosecution and imprisonment of prominent Holocaust-deniers in Europe dealt a serious blow to the Holocaust-denial movement in 2006. Some civil libertarians decried the use of laws prohibiting Holocaust-denial, but there was a noticeable decline in denial activity, following the jailing of the movement’s best-known figure, David Irving, in Austria, and the prosecution of prominent activists Ernst Zündel, and Germar Rudolf in Germany. The release of Irving from prison in December 2006, after serving about one third of his three year sentence, is likely to re-invigorate the denial movement in the years ahead.64

Likewise, the Iranian government’s encouragement and assistance will provide a further boost, and possibly financial rewards.

Recent initiatives include the International Holocaust Revisionist Conference organized by Eric Gliebe of the white-supremacist National Alliance, which took place in Hillsboro, West Virginia, on 26-27 May 2007. Among the speakers were Canadian Paul Fromm, Michelle Renouf, and veteran deniers Arthur Butz and Willis Carto.65 The far-Right Argentinian Second Republic Movement plans to hold a “multidisciplinary international conference on the Holocaust debate” in Buenos Aires in 2008 to “establish the true nature of power and leverage exerted by International and Local Zionists [sic] organizations and interests in our country.”66

It does not appear that the international criticism, and the criminalization of public denial activity in almost half the states of the European Union, will stop the denial promoters. Instead they may shift the focus of their activity to those states where no criminal sanctions exist. The legal and political environment in the states that have legislation may be too hostile to risk further prosecution, particularly for the older activists such as Faurisson or Irving who have previous convictions and may now face severe penalties if convicted again.

The United States will continue to allow Holocaust-denial activity because of the First Amendment guarantees, although mainstream Internet service providers have been prepared, when requested, to remove posters of hate speech from their sites. Deniers may therefore have to rely increasingly on sympathetic hosts. The United States also will continue to present an attractive destination for deniers, particularly the older, better-known activists whose entry is not barred as their criminal convictions are not for crimes recognized by American courts. Moreover, paid personal appearances and book-sale opportunities provide a source of income otherwise denied them in Europe.

Former Soviet Union and EU accession states may be particularly reluctant to legislate against speech, however offensive and even if it incites hatred. They are still affected by their experiences in the twentieth century when freedom of speech was severely curtailed by the Nazis and then by the communists. Hatred promotion will continue in some former Soviet-bloc states such as Ukraine, where the privately funded MAUP university in Kiev offers courses on anti-Zionism and publishes anti-Semitic texts, and where David Duke has lectured. In these states there currently is no legislation and no political will to confront denial activity, though the Ukrainian government has recently been responsive to criticism over MAUP.

Holocaust denial will continue throughout the Arab and Muslim world, promoted by the state-controlled and private media, for the reasons noted above. This is despite the recognition by some local political leaders and spokesmen of the harm that denial activity causes to these countries’ international reputation, as in a recent statement by Egyptian Ahmed Aboul Gheit. On 21 April 2007, he pointed out that Egypt had voted for the abovementioned UN General Assembly Resolution and supported the EU Common Framework Decision.67

On 8 June 2007, in a fence-mending exercise at an OSCE intergovernmental conference, the Egyptian representative denied that there was anti-Semitism in the Arab world.68 It is, though, a fact that anti-Semitism and Holocaust denial are now endemic in the Arab world and that state institutions play the key role in impelling them.

The Necessity of Holocaust Education

The existence of legislation that criminalizes Holocaust denial, and a history of prosecuting it in a particular country, may seem to be a sufficient deterrent in itself. But the fact that there are repeat offenders such as Faurisson suggests that this is not the case. Prominent activists in those EU countries that maintain a hostile legal environment have not stopped publishing denial material nor making public statements, sometimes via their national media, denying all or important elements of the Holocaust. As noted, they may merely shift the locus of their activity.

The abovementioned Stockholm Declaration has led to a proposal for a more comprehensive education regime for the young entailing mandatory courses for all students. Such a program is now being put in place by the International Taskforce and the OSCE Office for Democratic Institutions and Human Rights (ODIHR). This more realistic and effective solution would create an environment where denial activity would find little or no support. At the time of writing, seven OSCE participating states have begun to use teaching materials developed by the Anne Frank House in Amsterdam in their education systems, and a further three are working with ODIHR to do the same.69

At the Holocaust Memorial Museum in Washington, DC, information officers from UN Information Centres in eleven Latin and Central American states recently launched a program titled “The History of the Holocaust: Confronting Hatred, Preventing Genocide and Cultivating Moral Responsibility.” In an address to participants, Kiyo Akasaka, UN under-secretary general for communications and public information, stated that: “History has shown that the Holocaust was intimately linked to the founding of the United Nations. I urge you to be curious, ask questions and reflect on ways in which you can enhance outreach activities in your respective countries in the areas of Holocaust remembrance, human rights and genocide prevention.”70

To defeat denial, more effective than laws alone is education-coupled with the widespread understanding that denial is a means to undermine or falsify the established facts of history, promote neo-Nazi ideology, attack democracy, and delegitimize the state of Israel. However, from a moral and historical perspective it is equally important that European states legislate to outlaw this form of hatred, which has the capacity to unravel the cohesion that these states have worked to achieve since 1945.

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Notes

*    This article is based on the author’s chapter in Ivan Hare and James Weinstein, eds., Extreme Speech and Democracy (Oxford: Oxford University Press, forthcoming, 2008).

1. Michael Whine, “Holocaust Denial in the United Kingdom,” in Jan Herman Brinks, Stella Rock, and Edward Timms, eds., Nationalist Myths and Modern Media: Contested Identities in the Age of Globalisation ( London: Tauris Academic Studies, 2005), www.thecst.org.uk/docs/Holocaust%20Denial%20in%20the%20UK.pdf; Michael Whine, “Progress in the Struggle against Anti-Semitism in Europe: The Berlin Declaration and the European Union Monitoring Centre on Racism and Xenophobia’s Working Definition of Anti-Semitism,” Post-Holocaust and Anti-Semitism, 41, 1 February 2006, www.jcpa.org/phas/phas-041-whine.htm; Michael Whine, “Cyberhate, Antisemitism, and Counterlegislation,” Post-Holocaust and Anti-Semitism, 47, 1 August 2006, www.jcpa.org/phas/phas-047-whine.htm.

2. “German Holocaust Denier Rudolf Jailed for 30 Months,” Deutsche Presse-Agentur, 15 March 2007.

3.  Commonwealth of Massachusetts v. Fred A Leuchter Jnr., Cambridge District Court, 11 June 1991, Cambridge, MA. By reaching a consent agreement with the court, Leuchter avoided a custodial sentence and a fine for practicing engineering without a license.

4. Criminal Justice and Public Order Act 1994, www.opsi.gov.uk/acts/acts1994/Ukpga_19940033_en_1.htm; Crime and Disorder Act 1998, www.opsi.gov.uk/acts/acts1998/19980037.htm.

5.  For example, Lady Jane Birdwood was convicted in April 1994 for possessing and distributing threatening, abusive, and insulting literature that contained Holocaust-denial statements; Charlie Sargent, Will Browning, and Martin Cross were convicted for stirring up racial hatred in 1994 for publishing Combat 18, a magazine that denied the Holocaust; Nick Griffin and Paul Ballard were convicted in April 1998 for publishing The Rune magazine, which contained denial material; Simon Sheppard was convicted in June 2000 for publishing leaflets that contained statements ridiculing the Holocaust.

6. See Manfred Gerstenfeld, “Holocaust Inversion: The Portraying of Israel and Jews as Nazis,” Post-Holocaust and Anti-Semitism, 55, 1 April 2007.

7. For discussion of the issues, see ibid.; Manfred Gerstenfeld,  “Ahmadinejad, Iran, and Holocaust Manipulation: Methods, Aims, and Reactions,” Jerusalem Viewpoints, 551, 1 February 2007.

8. The issues and potential remedies were debated at the OSCE Meeting on the Relationship between Racist, Xenophobic and Anti-Semitic  Propaganda on the Internet and  Hate Crimes, Paris, June 2004, www.osce.org/documents/cio/2004/09/3642_end.pdf.

9.  Stephanie Nebehay, “Web Co-Inventor Backs Licensing,” Reuters, 27 November 1999.

10. Whine, “Cyberhate.”

11. Declaration of the Stockholm International Forum on the Holocaust, Stockholm, 26-28 January 2000, www.holocaustforum.gov.se/conference/official_documents/declaration;

Resolution on the Holocaust, anti-Semitism and racism, European Parliament, Brussels, 27 January 2005; Combating Anti-Semitism, Decision No. 607, Permanent Council, Organization for Security and Cooperation in Europe, PC.DEC/607, 22 April 2004; Berlin Declaration, Bulgarian Chairmanship, the Chairman-in-Office, Berlin, 2004, www.osce.org/documents/cio/204/042828_euipdf; Cordoba Declaration, Slovenian Chairmanship, Chairman-in-Office, Cordoba, 9 June 2005,  http://www.osce.org/documents/cio/2005/06/15109%1fen_pdf; Resolution on combating anti-semitism and other forms of intolerance, Declaration of the OSCE Parliamentary Assembly, Brussels, 3-7 July 2006; Resolution 1563, Combating anti-Semitism in Europe, Parliamentary Assembly, Council of Europe, Strasbourg, 4 June 2007.

12. Working Definition of Antisemitism, European Monitoring Centre on Racism and Xenophobia, Vienna, 16 March 2005,  http://eumc.europa.en/eumc/material/pub/AS/AS-WorkingDefinition-draft.pdf.

13. Resolution adopted by the General Assembly on the Holocaust Remembrance, A/RES/60/7, New York, 1 November 2005, www.un.org/holocaustrememberance/docs/res607.shtml.

14. Holocaust denial, Resolution adopted by the General Assembly, 61/255, adopted 26 January 2007, A/RES/61/255, New York, 22 March 2007.

15. List of participating States having established Memorial Days, OSCE ODIHR, Tolerance and Non-Discrimination Programme, Warsaw, 1 October 2006.

16. Additional Protocol to the Convention on Cybercrime, concerning the criminalisation of acts of a racist and xenophobic nature committed through computer systems, Council of Europe, Strasbourg, 28 January 2003, http://conventions.coe.int/treaty/en/treaties/html/189.htm.

17. http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=189&CM=8&DF=3/28/2007&CL=ENG.

18. Prohibition Act, Law Gazette No. 13/1945, as amended by Federal Law Gazette No. 48/1992, cited in Nina Osin and Dina Porat, Legislating against Discrimination:  An International Survey of Anti-Discrimination Norms (Leiden and Boston: Tel Aviv University and Martinus Nijhof, 2005), 87.

19. Law of 23 March 1995, Le Moniteur Belge, No. 7996, Brussels, 30 March 1995.

20. Hate Crime Legislation in European Union Member States (Paris: European Jewish Congress, 2007).

21. Law of 29 July 1881, as amended by Act No. 90-615 of 13 July 1990, cited in Osin and Porat, Legislating, 306.

22. Federal Law Journal, 1994, cited in Osin and Porat, Legislating, 330.

23. Combating Hate Crimes in the OSCE Region: An Overview of Statistics, Legislation, and National Initiatives (Warsaw: OSCE/ODIHR, 2005), 136.

24. Hate Crime Legislation.

25. Combating Hate Crimes, 138.

26. “Netherlands,” Country Reports, Stephen Roth Institute for the Study of Contemporary Antisemitism and Racism, Tel Aviv University, 1998, www.tau.ac.il/Anti-Semitism/asw97-8/holland.html; also www.meldpunt.nl/index.php?link=revisionismee. [Dutch]

27. Dorien Verhuist, “Conviction for Holocaust Denial on Website,” Institute for Information Law, University of Amsterdam, http://merlin.obs.coe.int/iris/2005/2/article35.en.html.

28. Act of 18 December 1988 on the Institute of National Remembrance-Commission for the Prosecution of Crimes against the Polish Nation, www.ipn.gov.pl/portal/en/32/46/.

29. Combating Hate Crimes, 144.

30. Monitorul official al Romaniei, 28 March 2003, cited in “Final Report of the International Commission on the Holocaust in Romania,” presented to President Ion Iliescu, Bucharest, 11 November 2004, 36.

31. Combating Hate Crimes, 148-49.

32. Osin and Porat, Legislating, 869.

33. “Spanish FM: Constitutional Court Decision ‘Must Be Overturned,'” European Jewish Press, 15 November 2007, http://www.ejpress.org/ (viewed 19 November 2007).

34. Information Note No. 54 on the case-law of the Court, European Court of Human Rights, Strasbourg, June 2003, www.echr.coe.int/Eng/InformationNotes/INFONOTENo54.htm. Article 17 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is designed to prevent abusers of rights from claiming protection that might be conferred by other articles. It states 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 or at their limitation to a greater extent than is provided for in the Convention.”

35. Jane Paulick, “Germany Moves to Silence Holocaust Deniers across Europe,” Deutsche Welle (viewed 27 March 2007), www.dwrld.de/popups/popup_printcontent/0,,2317216,00html; Framework decision on Racism and Xenophobia, Press Release 8665/07 (Presse 84), Council of the European Union, Luxembourg, 17 April 2007.

36. Council Framework Decision on combating racism and Xenophobia, 8180/2/07REV2DROIPEN2a, Justice and Home Affairs Council of the European Union, Strasbourg, 17 April 2007.

37. Ibid.

38. Hate Crime Legislation.

39. “Zündel Sentenced to Five Years in German Prison,” Associated Press, 15 February 2007.

40. “German Lawyer for Zündel Charged with Incitement,” Associated Press, Globe and Mail, 20 March 2007.

41. “German Holocaust Denier Rudolf.”

42. “Fine for Gollnisch,” Jewish News, 25 January 2007.

43. “Austria,” Country Reports on Human Rights Practices 2006, U.S. Department of State, Washington, DC, 6 March 2007, www.state.gov/g/drl/rls/hrrpt/2006/78800.htm.

44. “Poland,” Country Reports on Human Rights Practices 2006, U.S. Department of State, Washington, DC, 6 March 2007, 7, www.state.gov.g/drl/rls/hrrpt/2006/78832.htm.

45. Mark Weber, “Polish Professor Fired for Dissident History Book,” Journal of  Historical Review,

      http://www.ihr.org/jhr/v19/v19n3p25%1fWeber.html (viewed 31 May 2007).

46. “Neo-Nazi to Serve Time for Holocaust Denial,” Jewish Telegraphic Agency, 7 August 2007,

       www.jta.org/cgi-bin/iowa/breaking/103484.html (viewed 8 August 2007).

47.  “Arrested,” Jewish News, 30 August 2007.

48. Hate Crime Legislation.

49. Correspondence between author and Central Board of Jewish Communities in Greece, 13 December

      2007.

50.  “Belgian Ex-Senator on Trial for ‘Holocaust Denial,'” United Press International, 4 April 2007,

www.politicalgateway.com/news/read/69162; email to author from Forum of Jewish Organisations, 17 July 2007.

51. “Frenchman Convicted for Holocaust Denial,” Expatica News, 9 November 2007,

      http://www.expatica.com/ (viewed 12 November 2007).

52.  “Iran Displays Holocaust Cartoons,” BBC News, 15 August 2007,

       http://news.bbc.co.uk/go/pr/fr/-1/hi/world/middle%1f_east/4795709.stm (viewed 1 December 2007).

53.  “Moroccan Wins Iran Cartoon Contest,” MSNBC.com, 2 November 2006 (viewed 1 December 2006).

54. Gerstenfeld, “Ahmadinejad.”

55.  “International Conference-‘Review of the Holocaust: Global Vision’ (Tehran,

       10-12 December 2006),” www.adelaideinstitute.org/2006December/contentsprogram.1.htm; also

       www.ipis.ir/English/meetings_roundtables_conference.htm.

56. “The Mashhad ‘Holocaust’ Conference-6 March 2006,” Adelaide Institute,

       www.adelaideinstitute.org/Iran/conference_program2.htm.

57. “Founding of the International ‘Holocaust’ Research Committee (Tehran, 13 December 2006),” http://adelaideinstitute.org/.

58. “Leeds BPP Meeting a Huge Success,” British People’s Party, 20 January 2007, http://www.bpp.org.uk/

       (viewed 21 January 2007).

59. “Real History, and a Radical’s Diary,” www.fpp.co.uk/docs/Irving/RadDi/2007/020307.html.

60. “David Irving: Controversial Historian in Hungary for Book Signing, Speeches,” Budapest Sun, 14 March 2007, www.budapestsun.com/cikk.php?id=2598; “Hungarian Protests Turn Violent,” BBC News, 15 March 2007, http://news.bbc.co.uk/go/pr/fr/-/1/hi/world/europe/6453183.stm; “Revisionist Historian to Join the Far-Right on Emotionally Charged National Holiday,” Budapest Times, 14 March

2007.

61. “Real History and a Radical’s Diary,” 27 April 2007, www.fpo.org/online (viewed 8 May 2007).

62. Lynette Owen, “Irving Booted out of Warsaw Fair,” The Bookseller, 25 May 2007. Video footage of Irving’s expulsion is also available on YouTube at http://serwisy.gazeta.pl/kraj/1,34397,4142913.html.

63. “British Historian Denies WW11 Gassings,” Associated Press, 23 March 2007.

64. Rafael Medoff and Alex Grobman, “Holocaust Denial: A Global Survey-2006,” David S. Wyman Institute for Holocaust Studies, Washington, DC, 2007, www.wymanwymaninstitute.org/articles/HolocaustDenial/2006.pdf.

65. Ralph Forbes, “Nationalist Free Speech Meeting a Success Despite Sabotage Gambits,” National Alliance News, www.natallnews.com/story.php?id=5253 (viewed 29 June 2007). See also 2007 Holocaust Revisionist Conference DVD, Catalog Item 891, National Vanguard Books, available at www.natvanbooks.com/cgi-bin/webc.cgi/st_prod.html?p_prodid=1041 (viewed 1 December 2007).

66. “New Holocaust Debate to Be Held in Argentina,” statement by the Argentine Second Republic Movement, British People’s Party, http://www.bpp.org.uk/ (viewed 28 March 2007).

67. “Egyptian Minister Reacts to EU Decision on Criminalizing Anti-Holocaust Remarks,” MENA news agency [Arabic], BBC Monitoring, 21 April 2007.

68. Rauf Saad, assistant to the minister of foreign affairs of the Arab Republic of Egypt, Plenary Session 1, OSCE Conference on Combating Discrimination and Promoting Mutual Respect and Understanding, PC.DEL/543/07, Bucharest, 8 June 2007.

69. Christian Strohal, Address by the director of the OSCE Office for Democratic Institutions and Human Rights, 672nd Session of the Permanent Council, Vienna, 28 June 2007. See also “ODIHR Tackles Anti-Semitism with Innovative Education Materials,” OSCE Highlights, 31 May 2007.

70. “UN Joins with Holocaust Museum to Foster Genocide Prevention, Remembrance,” UN News Service, 15 May 2007, www.un.org/apps/news/printnewsAr.asp?nid=22556.

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MICHAEL WHINE is director of government and international affairs at the Community Security Trust and director of the Defence and Group Relations Division of the Board of Deputies of British Jews. He acts as consultant on defense and security issues to the European Jewish Congress.

About Michael Whine

Michael Whine is the Government and International Affairs Director at the Community Security Trust, and Defence and Group Relations Director at the Board of Deputies of British Jews.