Criminal penalties for Holocaust denial have been established in several democratic states, primarily in the European Union. According to author and analyst Alexander Podrabinek, such laws clearly violate the freedom of expression—and, in the end, only work to the anti-Semites’ advantage.
In late January, the Budapest Court of Appeal upheld an earlier ruling by the city court that convicted a 42-year old Hungarian citizen for holding a banner with the words “The Holocaust did not Happen” in Hebrew while attending a demonstration on October 23, 2011. For this, he was sentenced to18 months’ imprisonment (suspended for 3 years.) The name of the man has not been divulged. He was also banned from taking part in rallies or any other political manifestations. He must visit Budapest’s Holocaust Memorial Center at least three times and describe his experiences, the court ruled. Alternatively, the man was advised to visit the former Nazi death-camp Auschwitz-Birkenau in southern Poland or the Yad Vashem memorial center in Jerusalem.
In February 2010, the Hungarian parliament adopted a law imposing criminal liability for Holocaust denial. The aforementioned convict became the first citizen of this country sentenced for denying the mass extermination of Jews during World War II. 600,000 Jews were killed during the war in Hungary alone (that country was a military ally of Nazi Germany,) while the total number of Holocaust victims was approximately 6 million.
This number has always been disputed by some professional and amateur historians and anti-Semites. Different arguments have been advanced, from the simple “it could not have happened!” to a meticulous evaluation of Auschwitz crematoriums. These discussions have never had much success with the public—partly due to the overwhelming evidence of the Holocaust, partly, to the impossibility of evaluating a national tragedy in numbers.
However, in the early 1980s, debates about criminal penalties for Holocaust denial began in Europe. In the mid-1990s laws to this effect were passed in several European countries. In October 1994, Germany became the first country to adopt a law on “overcoming the consequences of crimes” of the National Socialist period. Violations of this law can result in a maximum sentence of 5-year imprisonment.
Today, Austria, Belgium, Hungary, Germany, Lithuania, Luxembourg, Poland, Slovenia, France, Switzerland, Canada and Israel have laws directly banning public denial or justification of Nazi crimes. The laws are not the same everywhere. Some countries equate Nazi crimes with Communist ones.
“Wise” moves by European lawmakers only contribute to the growth of anti-Semitism.
European courts are not overloaded with such criminal cases, but trials do take place from time to time. Heavy fines have been imposed in France (on Roger Garaudy in 1998 and Jean-Marie Le Pen in 2008), while 1-year prison sentences have been handed down in Switzerland (Jürgen Graf and Gerhard Fӧrster in 1998; Gaston Armand Amaudruz in 2000). In 2006, in Austria, British writer and historian David Irving was sentenced to 3 years in prison for Holocaust denial. After serving a little more than a year, he was deported home. In 2009, Austrian writer Gerd Honsik was sentenced to 5-year imprisonment for denying the Holocaust and promoting Nazism. In 2009, a German court fined British Bishop Richard Williamson €12,000 for denying the Holocaust in an interview on Swedish television. While these regulations are not being used to the utmost, they are not “dead letter” either. If one says that the Holocaust did not happen, one receives a prison term; the same goes for those denying crimes of the Communist regime. A Nazi and a Communist in one cell—what could be better?
What is strange, though, is that anti-Semitism in Europe has been growing despite the criminal penalties. Last January, Israeli Chief Rabbis Yona Metzger and Shlomo Amar sent a letter to European Council President Herman Van Rompuy, expressing their concern about the “growing anti-Semitism” in Europe. The president of the European Jewish Congress, Vyacheslav Kantor, declared that anti-Semitic manifestations in Europe are becoming more severe.
Not long ago, a Hungarian lawmaker from the far-right Jobbik party called for drawing up lists of prominent Jews who “pose a threat to national security.” The president of the European Parliament, Martin Schulz, expressed outrage. "There is anti-Semitism in Europe. There is a freely elected member of Parliament of a European Union member-state asking for registering Jews. This is shocking and shameful," he said.
The far-right Jobbik party is currently the third-largest in the Hungarian parliament, having received 17 percent of the vote in the 2010 election.
Tons of books and miles of research have been written on the origins of European anti-Semitism. Without stating the obvious, it is worth mentioning that some “wise” moves by European lawmakers only contribute to the growth of anti-Semitism. Criminal penalties for denying the Holocaust are among these. Such laws represent a clear and unequivocal violation of freedom of expression. It is a fact that is hard to refute. There is debate on how appropriate this limitation is, and whether there are good reasons for such an exception to the principle of free speech. Lawmakers have chosen to make a certain theme of recent history sacred, a theme one is not permitted to discuss or doubt. As a result, freedom of speech does not apply to one particular historical subject. There is no denying that such an approach is unjust, which in turn causes irritation and protest in society. Protest against whom? Naturally, against the lawmakers, but at the same time against the object of their protection—the Jews.
Nothing irritates people more than official recognition of one particular group as superior to the others. Nobody wants to be second-class. European lawmakers seem to be saying to their citizens: “You can discuss anything. You can criticize anything and doubt anything, except for the Holocaust. This is beyond criticism.” What could stir up European anti-Semitism more than such laws? What a disservice to the Jewish people!
Not only is this legally unfair—fanatical anti-Semites and paranoid racists now have a moral advantage: they are not only fighting against the “international Jewish conspiracy,” but also leading the struggle for justice, because the struggle for equal rights and freedom for all is indeed a struggle for justice.
It is well known what will happen if 100 yards of the national border are privatized. The national border will disappear, because 100 yards are enough for smuggling and illegal migration. What happens if there is an exception to a law? There will not be such a law, because a law that does not apply to everybody is not a law. If there is one exception, there will have to be others. For some, the Holocaust is a sacred subject; for others, the Quran and the Prophet Muhammad; for others still, Orthodox shrines or pagan gods. In France, they have recently tried to make a sacred cow of the Armenian Genocide in the Ottoman Empire (with criminal responsibility for its denial.) In Russia, there is talk about introducing criminal responsibility for denying victory in World War II. In North Korea, they have been killing people for a long time for doubting Communist teachings.
Europe is still considered by many as a model of democracy—but if some are allowed to be different, why not others? Who defines the sanctity and inviolability of an issue? Everybody takes to heart something different, and if one follows the road of restricting discussion of certain sacrosanct matters, where does one stop?
Some countries are already starting to back off. In November 2007, the Constitutional Court of Spain abolished prison sentences for Holocaust denial. All those convicted under this law have been set free. In 2011, the Supreme Court in Madrid passed a resolution that abolished criminal prosecution for the propaganda of opinions connected with Holocaust denial.
Fanatical anti-Semites and paranoid racists now have a moral advantage: they are not only fighting against the “international Jewish conspiracy,” but also leading the struggle for justice.
In Denmark and Norway, Holocaust denial is not prosecuted. The same goes for the United States of America, where free speech is protected by the First Amendment to the Constitution. This Amendment has been in effect since 1791 and has not lost its relevance.
In 1998, the European Court of Human Rights affirmed the legality of passing laws against Holocaust denial. In 2003, in the case of Garaudy versus France, the European Court noted that by denying the Holocaust, Garaudy intended to annihilate the rights and freedoms provided by the European Convention on Human Rights, and, as a consequence, the Court rejected his defense based on freedom of expression.
By justifying the encroachment on free speech with regard to the Holocaust, European lawyers are following the principle allegedly formulated by Antoine de Saint-Just—“there is no freedom for the enemies of freedom.” This is a defined legal position confirmed by Article 17 of the European Convention on Human Rights, which states that nobody has the right to “to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth (by the present Convention).”
There is some logic in this position, but it remains on paper. It would be logical, for example, for Europe to use the same principle to ban Communist propaganda because it is aimed at violating civil rights. However, this is not happening—what is happening is that the European Court is treating unpleasant speculations on a historical topic as an encroachment on rights and freedoms.
Can an openly provocative banner that reads “The Holocaust did not happen” be considered as encroachment on somebody’s rights and freedoms? And what is more, can it be seen as one that entails criminal responsibility? By following this road one can go too far, where people can be thrown in prison for dissent or executed for adultery.
Europe is probably still a long way from the First Amendment to the U.S. Constitution. But there should be moderation in everything, and especially in laws that limit free expression. European lawmakers are doing Jews a disservice. The Jewish community and Israel should speak out against Europe’s use of the Jewish national tragedy to limit free speech. These limitations will only bring a new wave of anti-Semitism.
