EU justice ministers have agreed that holocaust denial should be a criminal offence throughout all 27 Member States, punishable with a sentence of between 1 and 3 years, with some caveats (summary here). It’s worth underlining that this will almost certainly have been agreed under Pillar III – Police & Judicial Cooperation in Criminal Matters – where unanimity is required and legislative initiatives do not necessarily come from the European Commission.
Now, let me state this categorically: I think anyone denying the holocaust is mad and disgusting. But on the other hand, I can quite understand the additional historical importance attached to, and fear of, holocaust denial in Germany and Austria in comparison to, say, the UK or Portugal. On the other hand, how to deal with atrocities committed by Stalin varies. Yes, what was done was gruesome, and it’s mad to deny it. But this touches today’s politics in the Baltic countries, Poland etc. more than it touches Malta.
What is the problem therefore of having mutual recognition of these matters? Each country’s own law would apply, and other countries would respect that? After all, being a democracy and respecting the rule of law is a condition for entering the European Union in the first place.
So why are we going down this road? I suspect – above all – it is because the German Presidency of the EU wants to show that it is proactive, and is working for something that is important to Germany, Germany after all being one of the European countries that is strongest when it comes to holocaust denial. As this is a Pillar III issue, the Commission does not have the sole right to initiate legislation, so this cannot be portrayed as an effort by the EU institutions to pinch power from Member States.
In short, is this legislation going to do much to prevent holocaust denial? I doubt it. Will it help prevent the rise of ne-nazism? Again, highly doubtful. It makes the EU look vaguely ethical, and starts to unearth all kinds of differences to national approaches on this issue, and I’m not sure that’s very valuable either.
I’m inclined to agree with you about this. The reason why Holocaust denial is so disgusting is that is a almost invariably motivated by anti-semitism and intended to provoke racial hatred. But the need to protect people from this kind of abuse needs to be weighed up against the right to free speech and the risk of a slippery-slope effect: it is vitally important not to close off whole areas of history to research and debate. The solution (which I agree is better pursued at member-state level) is to find ways to increase the chances of a successful prosecution for Holocaust denial under exisiting (or expanded) racial hatred legislation.
In France the 1990 law on Holocaust denial has generated a whole raft of other attempts, some more successful than others, to legislate for history, for example a 2005 law requiring schools syllabuses to focus on the ‘positive aspects of colonialism’ (subsequently repealed). The ‘Taubira’ law of 2001, which officially recognizes slavery as a crime against humanity (although does not criminalize its denial) was used in 2005 in an attempt to bring a case against a very reputable historian (Olivier Petre-Grenouilleau) who argued that it was not helpful or accurate to refer to slavery as a genocide since it was not a deliberate policy of extermination (even if it may have had this effect). The case was withdrawn, but it made a lot of academics very nervous and very concerned about being taken hostage by pressure groups of various sorts. And a few months ago the National Assembly passed a bill that recognizes the Armenian Genocide as a crime against humanity (although the parliamentary timetable and the opposition of the Senate means that it will almost certainly not become law). Whilst the recent murder of Hrant Dink should make us all pause for thought, there is no doubt that in France legislation was pushed through by deputies with large Armenian communities in their constituencies and supported by others who feel that it will help shore up opposition to Turkey joining the EU.
As the number of Holocaust survivors who can bear direct witness to the death camps diminishes with every year I understand the urgency of enshrining Holocaust denial in law. But the potential knock-on effects of the legislative approach – from an anti-semitic backlash to the exploitation of genocide by politicians courting a particular constituency – are also deeply concerning. And we should be wary of those who seek to make political or diplomatic capital of others’ suffering.