Af Jacob Mchangama & Aaron Rhodes, 01-01-2011
Democracies don't ban offensive speech, not even the denial of the Holocaust or Stalin's crimes
The European Commission wisely rejected this week a proposal to criminalize the denial of Stalin’s atrocities. This is a good occasion to reexamine the logic of banning any form of revisionism, including Holocaust denial.
In a letter to Justice Commissioner Viviane Reding, the foreign ministers of Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania and Romania wrote that “the denial of every international crime should be treated according to the same standards to prevent favorable conditions for the rehabilitation and rebirth of totalitarian ideologies.” But the Commission demurred, stating that when it comes to memorializing past totalitarian crimes, “one size does not fit all.”
The proposal by the six former communist countries comes in the wake of a recent European Union decision obliging member states to criminalize the hateful condoning, trivialization and denial of certain internationally recognized crimes, among them the Holocaust. The ban does not cover though the crimes committed under communism, whose victims outnumber even those of Nazism. If the logic behind such laws is to prevent the resurgence of totalitarian regimes and to protect the dignity of the victims, it seems quite arbitrary to omit communism.
This double standard—which puts the commission in the position of deeming one set of mass murders deniable, while another is not—shows how ill-advised is the entire concept of banning the denial of well-documented horrors. Freedom of expression, which must include the freedom to be wrong and to offend, is a basic democratic principle. If the proposal had been adopted, the European Union would have become more like the very totalitarian system whose resurgence the foreign ministers so fear. Peddling the lies of denying the Holocaust or Soviet crimes is morally reprehensible. But unless the lies result in a specific harmful act, democracies must tolerate them.
The writing of history is not the role of governments. It is the job of historians and other members of civil society, who, empowered by academic freedom, access to information and vigorous free discussion, can convincingly establish the truth.
All serious historians and the vast majority of people in Europe acknowledge that millions of Jews were annihilated in the Holocaust. They understand this not because of laws establishing it as a historical fact, but because numerous historians have scientifically documented the horrors of the gas chambers beyond any meaningful doubt. Criminalizing those who persist in denying historical facts does nothing further to convince the public of the truth.
On the contrary, prosecuting Holocaust denial and similar revisionism makes martyrs out of liars, since they cannot legally defend themselves with the “evidence” that they use to support their claims. Banning Holocaust denial only drives the phenomenon underground and endows it with a perverse form of intellectual legitimacy.
Moreover, many revisionists do not deny the Holocaust outright or use anti-Semitic language but resort to trivialization. Criminalizing even such “soft-denial” leads to draconian restrictions on free speech. German courts, for example, have convicted a teacher for sending a private letter to a historian that denied Hitler’s part in the Holocaust but not the crimes of the Holocaust itself. The European Court of Human Rights upheld the German ruling. The carefully worded letter probably disguised much more sinister views. But convicting people on the basis of their assumed motives is a step toward totalitarianism.
No doubt a North Korean historian challenging the myths surrounding the “Great Leader” or an Iranian historian documenting the betrayal of the Islamic Revolution would face serious consequences in these countries. By adopting inherently vague laws criminalizing international crimes, Western democracies lend legitimacy to the totalitarian practices of dictatorships.
There might have been compelling reasons for banning Holocaust denial in Germany and Austria in the immediate aftermath of World War II. But while the Nazi ideology still has its followers, today Germany and Austria, as well the other European countries that ban Holocaust denial, are consolidated democracies with respect for the rights of individuals and minorities. The intellectual rebuttal of Holocaust deniers will do more to prevent anti-Semitism than gagging and jailing them.
Mr. Mchangama is director of legal affairs at the Danish think tank CEPOS and lectures international human rights law at the University of Copenhagen. Mr. Rhodes is an international human rights advocate and visiting lecturer at Helmut Schmidt University, Hamburg.
Bragt i Wall Street Journal Europe 24-12-2010.
