Prohibiting Holocaust Denial

 In 2007 the European Union made Holocaust Denial a crime in member states punishable by a prison term of one to three years.  Specifically, the EU provision prohibits:

Publicly condoning, denying or grossly trivialising

- crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8) 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

- crimes defined by the Tribunal of Nuremberg (Article 6 of the Charter of the International Military Tribunal, London Agreement of 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.

Here the EU was building on existing laws in Germany (Volksverhetzung) and Austria (Verbotsgesetz 1947). 

As Stefan Sasse points out in his Geschichtsblog, there are three problems with laws prohibiting Holocaust Denial:

1. They discourage legitimate historical inquiry. Historians may worry that any further research into the subject might violate the law.
2. They encourage those who want to use the laws to punish their political adversaries.  For example, conservatives who want to equate the genocidal crimes of the Holocaust to the Gulag (see also Der Historikerstreit).
3. Finally, these well-intentioned laws make martyrs of Holocaust deniers such as David Irving who are imprisoned for breaking them.  Their views should be ridiculed in the court of public opinion; the overwhelming majority of Europeans - Germans and Austrians included - reject these opinions and wouldn't change their views if these crackpots were allowed to speak freely, like they are in the US and UK.

Finally, Sasse points out the futility of trying to legislate thought:

Letztlich können Verbote wie diese ihren Zweck nie erfüllen. Sind sie überflüssig, weil die überragende Mehrheit ohnehin nie auf die Idee kommen würde, ihren Gegenstand zu vertreten, so können sie unerwünschte Nebeneffekte wie oben beschrieben haben. Wären sie aber notwendig, weil tatsächlich substantielle Teile der Öffentlichkeit die "schlechte" Meinung teilen, so wird auch ein Verbot nichts fruchten; die Gedanken sind und bleiben frei. Es ist notwendig, aktive Prävention und Aufklärung vor sich gehen zu lassen; die Vorstellung, ein juristisches Verbot könne einen unerwünschten Gedankengang aus der Welt schaffen, ist bereits in der liberalen Revolution des 19. Jahrhunderts zigfach zum Guten widerlegt worden. Warten wir nicht darauf, dass es auch noch im Schlechten widerlegt wird.

("In the end, these bans can never achieve their goals. If they are superfluous because the overwhelming majority don't hold these opinions anyway, then they can have the negative unintended consequences mentioned above. If they are necessary because large segments of the public ascribe to these "bad" opinions, then a ban won't do any good - thoughts are free.  It is necessary to practice active prevention and enlightenment.  The notion that a legal prohibition can somehow make unwanted views vanish from the world was already discredited  - for the good - in the liberal revolution of the 19th century.  Let's not wait for it to be discredited for the bad.")

As I've pointed out before, the EU laws are completely ineffectual anyway;  Holocaust Denial sites such as www.kreuz.net simply operate on servers located in the US, where one is free to deny the Holocaust all day long.

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Comments

[Zyme]

I wonder whether you also disapprove of the laws that prohibit lifting your right arm for the German salute or the criminalization of political organizations wearing uniforms?

Because should these bans be lifted, I would see a serious threat for our current system (which is why they are not lifted). The power of the masses enthralling the nation were quite visible recently at world cup events.

[David]

Zyme, I'd like to think that democracy is so firmly rooted in Germany that it can withstand a handful of idiots marching around in uniforms giving the Hitler salute.

[Strahler 70]

Objection, David! That's wishful thinking. The locations most frequently abused by that "handful of idiots" are soccer stadiums and clubs like Hansa Rostock work hard to keep them out. Indeed they are not only a handful, but hundreds or thousands in every major city. Allowing the Hitler salute before a TV audience of several million spectators, goal getters eventually giving back the salute to these "fans", would quickly open the gates for further fascist activities.

[Zyme]

Exactly. Democracy is by no means firmly rooted. Instead what is firmly rooted is appreciation for a systems that produces wealth for most in the society.

And since our democracy gets ever worse at that, so does its appreciation sink ever since the late 90s.

David, don't you remember the surveys asking Germans whether there is a need for more than one political party? :-)

[Chrétiens persécutés]

Opinion (any kind of opinion) is free, or is not. In Europe, it's not.

[Strahler 70]

So if it was my opinion to kill all coloured people, watch child porn and trade hard drugs, the USA would be the perfect place to run a website advocating that?

[Marxdoc]

Although I do not doubt the existence of the Holocaust, althgough I am not ati-semitic and not right-wing motivated, I am strictly against those anti-denial laws. In German courts no proofs of the statement for which the defendant is on trial are accepted. The defendant's lawyers, claiming to enter evidence are prosecuted for "denial" too. In the European Framework for the "Anti-Denial-Legislation" truth is no excuse*. One of the reasons for those laws is that "denial" or "relativating the severity" of the genocide is insulting the dignity of the deceased.
That point has several difficulties: 1. As seen after the official confirmation by the Russians, to be responsible for the Katyn massacres, the dignity of the deceased is not impaired in any way whoever murdered them and if they were murdered together with 1.000 or 10.000 others.
2. If truth is no excuse in court and the right of legal defense by proving a statement is abrogated, no more abhorrend and shameful insults to the dignity of the living people is possible.
Here those laws create what they maintain to prevent. Those laws are the shame of this century for any legal system. They bring us back to the time of inquisition and witch hunts.

http://www.law.fsu.edu/journals/lawreview/downloads/361/knechtle.pdf