HOLOCAUST DENIAL: AN EXCEPTIONAL REGIME?
Introduction
Spanish philosopher George Santayana used to say that “Those who cannot remember the past are
condemned to repeat it”. For this very reason, in various occasions, due to its concerns over the
increasing presence of Holocaust denial and the distortion of historical events in the new means of
communication, the UN General Assembly has underlined that the key role of the remembrance of
the Holocaust in preventing the reenacting of these tragic events, which count millions of victims
whose deaths are to be ascribed to their ethnical and religious identity. Following this lead, the UN
General assembly condemns “without any reservation any denial of the Holocaust as a historical
event”.
The Holocaust is the systematic persecution and killing of six million Jews and millions of other
minorities perpetrated by Nazi Germany and its collaborators during World War II. The genocide of
Hebrews consisted in a first stage of legal discrimination and social exclusion conducted by the
Government, that culminated with the so called “final solution”, an organised mass murder
implemented through State laws. This genocide rested on the grounds of “racial superiority and
aspirations of racial purity”, an ideology that considered the Jews as subhumans.
Despite the thousands of testimonies and the introduction of programs on the Holocaust in schools
all over the World, the past few decades have registered a consistent increase in the diffusion of
misinformation and distortion of historical events related to the Holocaust, a phenomenon known as
“Holocaust Denial”. Its working definition was adopted by the International Holocaust Remembrance
Alliance(IHRA)’s Member Countries in a meeting in Toronto on 10 October 2013. The same definition
has been used by the UN General Assembly in its resolution A/76/L.30 in which the Assembly
condemns this phenomenon. The Holocaust Denial is so defined as “Any attempt to claim that the
Holocaust did not take place”, including the denying and calling into doubts the methods, Nazi
Germany’s paternity of the genocide, the number of the victims; and attempts to blame the Jews for
causing their own genocide.
In this paper the issue of Holocaust denial will be analysed starting from the role of the criminalisation
of Holocaust Denial; following with the necessity to balance the right to freedom of expression and
the protection and respect of the rights and reputation of others, also comparing the European and
the US case-law related to hate speech. Finally, the research is focused on the reasons for
differentiation produced by courts between Holocaust Denial, as an exceptional regime, and other
cases of mass murder, with a particular emphasis on the differences between the former and the
genocide of Armenians.
Criminalisation of Holocaust Denial
The criminalisation of Holocaust Denial consists in addressing some interpretations of these historical
events in criminal law through legislation. This trend originated in Europe where, starting from the
early 1990s, several member States adopted statutes criminalising this phenomenon, as well as
remembrance laws to prevent any individual to be discriminated base on them belonging to a specific
minority, and to prevent other similarly heinous acts to occur. This tendency has been originated in
Europe because the Continent was the theatre of such tragedy.
The obligation of considering the denial as a crime was incorporated in international and EU law.
Consequently, other States started to either develop criminal provisions related to the criminalisation
of Holocaust denial or extend the application of already existing internal laws.
In the EU, this tendency to integrate international anti-denial provisions in domestic legal systems
gained even more importance after the adoption of the Council Framework Decision 2008/913/JHA
to hinder not only the Holocaust but also other internationally recognised crimes. For example, Central
and Eastern EU Member States legislations cover not only nazi crimes but also those committed by
the communists, while western European countries do not.
Moreover, every legislation presents a vast array of optional elements allowed under the 2008
Framework Decision, for instance the possibility to prosecute conducts that disturb public order or
that are threatening, abusive or insulting.
One example of how EU provisions have been introduced in EU member States can be Germany,
where the criminalisation of Holocaust denial is regulated by Section 185 of GCC and Section 189 GCC,
in which the denial is considered to be an infringement to the right to dignity of Jewish people and
their descendants and a threat to public peace. Another example can be Italy, where Holocaust denial
is an aggravating circumstance within the crimes of racist propaganda and incitement of acts of
discrimination based on race, ethnicity, national origin or religion, all punishable under Law 654/1975.
Several following laws introduced amendments, that explicitly referred to the denial of the Shoah or
other crimes against humanity and war crimes (par.3bis). Moreover, according to Article 5 of Law
167/2017, minimising or denying the Shoah constitute an aggravating circumstance of the crime
established in Law 654/1975, art. 3.3. After the Legislative Decree of 2018, these provisions are now
contained in Article 604bis of the Criminal Code.
Fundamental Rights and Criminalisation of Holocaust Denial: Europe v. the US
The scope of the criminalisation of Holocaust denial has been extended to cover other internationally
recognised crimes. However, such prohibition is controversial because it raises issues regarding the
clash between the protection of the right of reputation and dignity of others and other fundamental
rights, such as freedom of expression and academic freedom. For this reason criminal convictions of
Holocaust deniers have led to high-profile judgments characterised by heated debates on an
international level.
Freedom of speech has always been perceived as a necessary tool against oppression, as much as
Revolutionary constitutions, like the US constitution or the French Declaration of the Rights of Men
and Citizen, considered free speech as a “sacred” fundamental human right.
Some of the most important theories in favour of free speech are the idea that “absolute truth does
not exist” by John Stuart Mill; and the idea that truth is what emerges from the free and transparent
competition between ideas in the “marketplace of ideas”, on the blue print of the economic concept
of the free market. This concept comes from the jurisprudence of the US Supreme Court Justice,
Justice Holmes, who explicitly referred to this idea in his dissenting opinion in the decision on the
Case Abrams v. United States (1919). This approach allows even “false” statements to be protected,
as an essential part of communication.
In the context of hate speech, the definition of the limits to speech among constitutional democracies
may differ. Generally, speech is restricted when is the source of discrimination and hatred against
others on the basis of their race, ethnicity, nationality or religion. Moreover, racist speech is often
prohibited because of its potential humiliating content in regards of the people subject to this
behaviour.
The way democracies handle racist speech depends on different factors, such as their historical
experiences, the way democracy works in a given country and how much free speech is valued in a
constitutional system.
To better understand how legislation on this issue can differ from country to country, in this paper will
be analysed the differences between the US an the European case-law related to hate speech.
The federal Constitution of the United State and its federal structure reflect the pluralism of peoples
and interests in the country. Strong protection of individual rights, including free speech, and the idea
that government interference with racist propaganda will undermine the right to free speech, are all
related to the origins of the Nation. Freedom of speech is guaranteed by the I Amendment, that
prohibits the Congress to restrict the activity of the press or the right of individuals to speak freely. US
Courts have also drown a very important distinction on this matter: no action or speech can be limited
based on its content. What can be limited or sanctioned is the way an individual expresses their own
opinion. Despite this, during the Red Scare, courts put out notions incoherent with this idea because
they used to thing that Communism was an imminent danger that justified limitations of speech. On
the other hand, in other cases courts protected forms of speech even more violent or disrespecting
than the former. There are several cases that can be cited to emphasises the American position on
free speech. One of which is the Case Collin v. Smith (1978), in which was decided that the right of the
neo-Nazi party to hold a march displaying Nazi symbols in a village with a significant population of
Jews and Holocaust survivors (Skokie, Illinois), was guaranteed under the First Amendment,
consequently the Village of Skokie could not prohibit the party to hold the demonstration. This
decision is justified with the fact that since the demonstration was intended to be peaceful, the public
expression of ideas can not be prohibited on the basis of their content, even if it being offensive or
degrading for the people that hear them (Bachellar v. Maryland, 397 U.S. 564 567 [1970]).
On the other hand, in Europe free speech is protected under Art. 10 of the European Convention on
Human Rights (ECHR) in which it is stated that governments should not interfere in the exercise of
freedom of speech, unless it is for protecting national security and public safety and “the reputation
or rights of others”. This is because in Europe, contrary to what happens in the US, there is a
preference for social justice over freedom. Even though the European Union considers freedom of
expression a fundamental right and allows the States to impose limited restrictions to it, it has
developed a special regime for the denial and distortion of historical facts (especially Nazi genocide),
cases in which no speech is allowed. This exception is regulated by Art. 17 ECHR in which it is stated
that the Convention does not allow acts that could undermine rights and freedoms set in the
Convention itself. To better understand the way these articles are applied concretely in the EU caselaw, it could be helpful to take into consideration the Case Garaudy v France (2003) decided by the
European Court of Human Rights (EctHR). In 1995 the philosopher and former politician Roger
Garaudy published a book in which, the Court of Appeal found, the writer denied the extermination
of Jews had ever happened, by questioning the facts and minimising the amount of Jewish people
killed. Because of his statements, the Court decided Mr. Garaudy’s conviction. The author complained
to the European Court of Human Rights on the basis of an infringement of his right to freedom of
expression. In its decision, the EctHR reiterates that freedom of expression is indeed a fundamental
right. On the other hand, the Court states that Holocaust Denial is excluded by the protection of Art.
10. Consequently, the negation or revision of events such as the Holocaust fall in the categories
prohibited by Art. 17 of the ECHR, because these statements “constitute a serious threat to public
order” and “infringe the rights of others”.
The Holocaust and the Genocide of Armenians
Concerning Holocaust Denial, the European Court of Human Rights has developed a regime that seems
completely unique compared to other similar events, so much as to justify restrictions on free speech.
At first, Art. 17 of the ECHR could only be applied against cases of “blatantly racist offence”. After this
first stage it started to be used as an interpretative aid to accompany Art. 10, under which the states
have to provide a demonstration that the restrictions of free speech are “necessary and
proportionate”. In the third stage, Holocaust Denial has been completely excluded from the protection
of Art. 10. This principle has been set firstly by decisions related to the Leideux Case and later on
applied to the Garaudy Case, restricting the scope of the abuse clause to “Holocaust Denial as such”,
without considering any racist or antidemocratic elements. This new specific nature led to a very
important decision regarding the case Witzsch v. Germany (2005). The applicant’s conviction was not
related to contesting that the Holocaust ever occurred, but rather Hitler’s responsibility in it. The
Court’s decision to convict the applicant is justified on the grounds that they “disdained the memory
of the victims of the Holocaust ”. This decision shows that it isn’t relevant whether the applicant’s
statement meant to imply the denial of the Holocaust or not, or if it had anti-Semitic, racist, or
discriminatory intentions. It states that any statement that questions any element concerning the
Holocaust can be sanctioned.
This new and restrictive application of Art. 17 ECHR raises concerns on whether the abuse clause could
be applied against other forms of denialism. To verify if these concerns are legit or not it is interesting
to take into consideration the recent case of Perınçek v. Switzerland (2015). Doğu Perınçek, a Turkish
politician, was convicted by Swiss courts for his public statements in which he contested the legal
classification of the crimes perpetrated against Armenians by the Ottoman Empire between 1915 and
1916 as genocide. The Swiss Federal Tribunal found him guilty of racial discrimination under Art.
261bis, para. 4, of the Swiss Penal Code on the basis that the Armenian genocide “was a proven fact
according to Swiss public opinion” and was recognised by the Council of Europe and the European
Parliament. Mr. Perınçek filed a complaint to the European Court of Human Rights, claiming that the
decision violated his right to freedom of expression protected under Art. 10 ECHR. The Grand Chamber
found that his right was violated. In its decision, the ECtHR argues that the applicant’s statements are
protected under Art. 10 because they fall under the category of political speech and they do not
constitute incitement to hatred or, at least, that this is not “immediately clear”. Moreover, the Grand
Chamber considers Perınçek’s statements not aiming to any falsification of historical events,
specifically the crimes against Armenians. What must be underlined in this decision is the distinction
between Holocaust denial and this specific case, which was based on several elements: (i) the
Holocaust has been clearly established by an international court as a crime against humanity, while
there is no general consensus on the supposed “genocide” of the Armenians since no Court gave legal
recognition to these events; (ii) Holocaust denial carries with it “an antidemocratic ideology and antiSemitism”; (iii) the unique principles related to Holocaust denial derive from the historical experience
of the states, that have a “moral obligation to distance themselves from those atrocities”,
consequently since Switzerland does not have any geographical or historical link with the crimes
perpetrated against the Armenians, it does not have an international obligation to sanction these
statements.
Conclusions