Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
And coming from Germany again. Not content with merely banning holocaust denial, now they are proposing an EU law that would prosecute anyone who denies any claimed genocide, war crime or crime against humanity:.
Berlin's draft EU directive extends the idea of Holocaust denial to the "gross minimisation of genocide out of racist and xenophobic motives", to include crimes dealt with by the International Criminal Court...The draft text states: "Each member state shall take the measures necessary to ensure that the following intentional conduct is punishable: 'publicly condoning, denying or grossly trivialising of crimes of genocide, crimes against humanity and war crimes as defined in'... the Statute of the ICC."
This is absolutely absurd. It essentially rules out any defense for anyone accused of crimes in the ICC. If someone is accused of war crimes and they or someone else denies that they committed the crime, they've broken this proposed law. And here's a recent example of where such a law might be applied:
General Lewis MacKenzie, the former commander of UN peacekeepers in Bosnia, courted controversy two years ago by questioning the numbers killed at Srebrenica in 1995.He took issue with the official definition of the massacre as genocide and highlighted "serious doubt" over the estimate of 8,000 Bosnian fatalities. "The math just doesn't support the scale of 8,000 killed," he wrote.
Balkans human rights activists have branded Gen MacKenzie an "outspoken Srebrenica genocide denier" and, if approved, the EU legislation could see similar comments investigated by the police or prosecuted in the courts after complaints from war crimes investigators or campaigners.
A German government spokesman said: "Whether a specific historic crime falls within these definitions would be decided by a court in each case."
But this is not the sort of thing a court ought to decide. The government has no business deciding what is the official belief that can be expressed, that should be left to scholars, historians and others to debate. And ironically, one of the world's strongest opponents of the validity of holocaust denial, Deborah Lipstadt of Emory University, says that such laws actually undermine the position of scholars and historians combatting such myths:
But the legislation faces stiff opposition from academics who fear it would stifle debate over some of the biggest issues in contemporary international relations.Prof Lipstadt has an international reputation for challenging Holocaust denial.
She was sued unsuccessfully for libel in 2000 by David Irving, the British historian, after exposing his misrepresentation of historical evidence and association with Right-wing extremists. But she does not believe denying the Holocaust or genocide should be a crime.
"The Holocaust has the dubious distinction of being the best documented genocide in history," she said.
"When you pass these kinds of laws it suggests to the uninformed bystander that you don't have the evidence to prove your case."
The professor is also worried by broad-brush definitions of genocide denial, particularly applied to recent conflicts that are still being researched and investigated.
Even without the threat of prosecution, there is concern that academics will try to avoid controversy by ignoring or even suppressing research that challenges genocide claims or numbers of those killed.
David Chandler, the professor of international relations at the University of Westminster's Centre for the Study of Democracy, fears that the draft law could inhibit his work.
"My work teaching and training researchers, and academic work more broadly, is focused upon encouraging critical thinking. Measures like this make academic debate and discussion more difficult," he said.
Prof Chandler also worries that the legislators will close down democratic debate on foreign policy. "Genocide claims and war crimes tribunals are highly political and are often linked to controversial Western military interventions. Should this be unquestioned? Is it right for judges to settle such arguments?" he asked.
Norman Stone, the professor of history at Turkey's Koç University, argues that any attempt to legislate against genocide denial is "quite absurd".
"I am dead against this kind of thing," he said. "We can not have EU or international legal bodies blundering in and telling us what we can and can not say."
An absolutely ridiculous and reprehensible proposal and the German government should be told in which orifice to insert it.
Comments
It's yet another reminder how rare and precious the freedom of speech the people of the United States possess truly is in this world.
Posted by: Jim Satterfield | February 4, 2007 1:26 PM
You are lucky in the USA, even in once free Britain the politicians seem intent on forbidding dissent.
I am not suprised at the French or Germans (Austrians included in Germans) wanting such restrictions; they have a history of suppressing dissent by law. Hopefully the other EU countries will tell them to stuff it, though, given the control freaks in Bliars goverment I don't have much faith in the UK doing so.
Too much political interference in peoples lives. If only revolutions weren't normally bloody affairs.
Posted by: Chris' Wills | February 4, 2007 2:57 PM
I doubt that I need to remind you of which party is ruling Germany now.
That's right. The conservatives.
Posted by: raj | February 4, 2007 3:50 PM
Please remember this is just a proposed law.
The last one you commented on had been taken of the table, and so will this. I just think the german government wants to further some domestic political goal.
Its never gonna be a EU wide law.
Posted by: Soren | February 4, 2007 4:20 PM
If you're right about that, then Germany's proposing this law is almost as despicable as if they were serious.
Posted by: Orac | February 4, 2007 4:25 PM
Could this be aimed at the Turks? As I recall, there was an earlier provision (not ultimately passed) to force Turkey to acknowledge the Armenian Genocide as a precondition for EU admission; maybe some of the same people are trying again.
Posted by: MJ Memphis | February 4, 2007 7:02 PM
Yes, I believe this is aimed at the Turkish government, and that, too, is despicable, since the law is aimed at individuals, not governments. I suppose it also has some relevance to internal German politics, as I imagine the government there doesn't object to indirectly bashing the large immigrant Turk population.
Almost any time a government starts passing laws that have anything to do with race or ethnicity you can be sure it is up to no good.
Posted by: kehrsam | February 4, 2007 7:10 PM
My dire prediction for the EU:
In a few decades a wave of far-right populism sweeps over the EU and some form of totalitarian regime emerges, using laws of this type to elimiate any opposition. Once you've granted this kind of power to the state, it may be turned to any purpose, not merely the purpose for which it was originally intended.
I really hope I'm wrong.
Posted by: James | February 4, 2007 11:45 PM
Quoth Ed: If someone is accused of war crimes and they or someone else denies that they committed the crime, they've broken this proposed law.
That's not entirely correct, to my mind. What you wouldn't be permitted to deny is that the alleged crime took place, but there's nothing to stop you from saying "my client didn't do it; it was somebody else." Mind you, the ICC Statute states that the ICC has no jurisdiction over crimes committed prior to 01-Jul-2002. Does that mean that, as long as you only deny genocides committed prior to 2002, you're in the clear?
I don't know what the deal is with MacKenzie. Considering he left Bosnia in '92, and retired from the Canadian armed forces in '93, I don't know what special information he's privy that led him to conclude "the math doesn't support" the estimated number of victims from Srebrenica. Sure, fewer than that have been dug up, but then again, the VRS went to extensive lengths to cover their tracks, and there were insufficient funds to dig up all of eastern Bosnia. The estimate of 8,000 might not be entirely correct, but it is far from implausible.
Posted by: Jurjen S. | February 5, 2007 5:37 AM
"My dire prediction for the EU:
In a few decades a wave of far-right populism sweeps over the EU and some form of totalitarian regime emerges, using laws of this type to elimiate any opposition."
Let's not lose the run of ourselves here. I think the US is a much more likely candidate for a right-wing totalitarian regime than the EU. Patriot Act anybody? I live in Ireland and so I'm not really familiar with the various laws on the continent, but the freedom of speech we enjoy here is comparable to that of the US. Perhaps our libel laws are more stringent, but maybe we enjoy greater freedom in the language and pictures the media are allowed to use. I've always thought it a particularly right-wing mythology that the US is the most free place in the world and everyone wants to be an American. Don't tell me that readers of this blog have fallen for it.
As for the German proposal, it definitely doesn't seem at all workable or democratic. However, I wonder if the existing German (& certain other countries) ban on Holocaust denial is not in some ways justifiable as a special case. Free speech should be the a priori condition in a democracy, but there are several cases in which it's curtailed: safety, incitement to violence, etc. Maybe banning Holocaust denial (and *only* the Holocaust) in a country whose government perpetrated the atrocities in living memory and where there still are some neo-Nazi threats to society could be justified.
Posted by: George | February 5, 2007 8:49 AM
George -
I agree, it is far more likely that the EU would be swept by a left wing totalitarian regime, than a right wing one - and reverse that in the U.S. I hope that niether happens, but if toto strikes, those would be the likeliest candidates, repectively.
All in all, this proposal scares the hell out of me on a number of fronts.
Posted by: DuWayne | February 5, 2007 11:57 AM
A law preventing GOVERNMENTS from "'condoning, denying or grossly trivialising of crimes of genocide, crimes against humanity and war crimes as defined in'... the Statute of the ICC" would make a good bit of sense -- but a law banning individuals from making such statements is just way out of bounds.
Posted by: Raging Bee | February 5, 2007 12:21 PM
George -
However, I wonder if the existing German (& certain other countries) ban on Holocaust denial is not in some ways justifiable as a special case.
Absolutely not. All they do is drive those who perpetuate that kind of bullshit underground. Better to know where they are and what they are doing.
Free speech should be the a priori condition in a democracy, but there are several cases in which it's curtailed: safety, incitement to violence, etc.
You say several, but only list two. I am curious what other restrictions on speech you find acceptable. Keeping in mind that the two you list are sharply limited in the U.S. Intent and injury must be proved to begin to prosecute. I can't think of a single, acceptable condition beyond the two you list, to restrict liberty.
Maybe banning Holocaust denial (and *only* the Holocaust) in a country whose government perpetrated the atrocities in living memory and where there still are some neo-Nazi threats to society could be justified.
How? What net positive can be drawn from such restrictions?
Posted by: DuWayne | February 5, 2007 12:41 PM
You say several, but only list two. I am curious what other restrictions on speech you find acceptable.
Slander, libel, defamation, inciting to riot, blowing state secrets, revealing personal or confidential information in public, false or misleading advertizing, and shouting "Snakes!!" in crowded airplanes, to name those I remember at this moment. Also, there are LOTS of restrictions on the manner and content of advertizing, particularly of alcohol, tobacco, and drugs.
Maybe banning Holocaust denial (and *only* the Holocaust) in a country whose government perpetrated the atrocities in living memory and where there still are some neo-Nazi threats to society could be justified.
One might be able to justify it, at least temporarily, as a form of restitution or reparations, paid by the loser to the winner of a war. (It certainly makes more sense than the reparations we charged them after WWI.) Sort of like knocking your opponent to the ground and then forcing him to admit he had the wrong side of the dispute that led to the fight.
Posted by: Raging Bee | February 5, 2007 2:22 PM
Am I the only one, who after reading this paragraph, flashed back to the Samuel Jackson movie where he yells "There are SNAKES!! On the PLANE!!!!" ?
In my opinion, there should be a law against Jackson or anyone else quoting that movie ever again. In fact, Bee, I think you should be punished for making me remember that awful movie to begin with.
;-)
Posted by: doctorgoo | February 5, 2007 2:57 PM
Raging Bee -
Slander, libel and defamation are all the same thing. So there is one addition to the list, which is subject to the same tight reigns that make safety (including shouting snake on an airplane) and incitement to violence so hard to prosecute. Restrictions on advertising fall under one of two catagories. The first being public safety, the second being fraud. The first is legitamately a restriction on speech, the second is not - it is a restriction on theft.
One might be able to justify it, at least temporarily, as a form of restitution or reparations, paid by the loser to the winner of a war. (It certainly makes more sense than the reparations we charged them after WWI.) Sort of like knocking your opponent to the ground and then forcing him to admit he had the wrong side of the dispute that led to the fight.
That is not a legitamate justification, in fact that is worse than a restriction on free speech. What you are suggesting is forcing someone to make a claim that they do not in fact believe to be true. So not only are they to have their speech restricted, they are forced to lie - that's a notion that would make "big brother" proud.
Posted by: DuWayne | February 5, 2007 3:01 PM
What you are suggesting is forcing someone to make a claim that they do not in fact believe to be true. So not only are they to have their speech restricted, they are forced to lie - that's a notion that would make "big brother" proud.
That assumes they actually believe their own holocaust denial, which is a completely different question.
Restrictions on advertising fall under one of two catagories. The first being public safety, the second being fraud. The first is legitamately a restriction on speech, the second is not - it is a restriction on theft.
What about restrictions on advertising for the sake of "public decency", i.e. no naughty words and no nudity, at least at certain times and places? This is a huge area where freedom of speech tends to be more curtailed in the US than in the EU. Is this justifiable? Maybe as public safety?
And if you grant public safety is a legitimate restriction on speech, perhaps the real (or at one time real) justification for the holocaust denial ban is public safety. Think incitement to hatred. Think political marches. Think football hooligans. I honestly don't know enough about the specifics of the ban to say much more than it requires a bit more thought than has been given here.
Posted by: George | February 6, 2007 1:40 AM
George, DuWayne: Yeah left-wing is also possible, but remember that Weimar Germany was a left-wing state that produced right-wing totalitarianism. In any case once a government gets a taste for taking away liberties things generally go from bad to worse, unless an economic crisis leads to reform.
As for totalitarianism in the US, I would say that depends on what happens in '08. Hopefully American voters see through watching GWB in action that big government has serious drawbacks.
Posted by: James | February 6, 2007 1:44 AM
James, I can think of one reason why a totalitarian federated EU will never come to pass: nobody will ever agree on who should lead it.
Posted by: Jurjen S. | February 6, 2007 3:25 AM
I can think of three reasons why laws banning Holocaust denial are a bad idea. The first two have already been introduced by other posters: that once you criminalize the denial of one atrocity, it's hard to justify stopping there or indeed anywhere; and that a ban on Holocaust denial is a great gift to the deniers themselves: it provides an air of plausibility to their claim that some shadowy Zionist cabal is bent on suppressing "the truth."
The third is this: Few (though by no means no) Holocaust deniers are so divorced from reality as to claim that not a single Jew was killed in Nazi Germany. Instead, most employ a number of other strategies, the most common being to pitch far a smaller number of deaths than the consensus figure among historians. Thus any Holocaust-denial ban must specify a minimum number of deaths as part of the definition of the Holocaust, which tends to reduce the study of a complex and terrible human tragedy into an exercise in accounting. The Chinese government has made this error in its feud with Japanese nationalists over the Nanjing Massacre. The facade at the memorial in Nanjing has "300,000" engraved in enormous numerals across its otherwise blank face. If a judicious joint study between Chinese and Japanese historians were to some day establish that the actual death toll was 250,000, the Massacre would be less terrible than the Chinese now claim in only a narrow sense, but all the same that wall would have to come down: by the terms the Chinese have chosen, they would be "wrong."
Posted by: beibanjin | February 6, 2007 6:43 AM
America is of course more friendly to right-wing economic theories and the admixture of politics and religion than Europe, but there has never been anything close to European style nationalist fascism in America. I think the terror-related policies of George Bush, which are remarkably unpopular now, are the closest thing you'll see to totalitarianism in America for some time. The anti-terror policies of France and other European powers, including even the UK, are as draconian as the patriot act. The reason Americans are thought of as rightwing in Europe is their religiosity, their lack of a strong welfare state, and their willingness to use force abroad (which rightly scares the shit out of everyone) - but America is hardly more prone to fascism than those countries of Europe which invented fascism and which, before the modern era, were ruled by authoritarians secular and religious for centuries going back to the dictatorship of Julius Caesar. Not that I think America is great - but when it comes to individual liberty, America is certainly no worse than Europe. I would hope that the Germans original holocaust denial law was the result of a specific historical context, but it seems to be turning into an ideology, or melding with the ideology of socialism.
Posted by: Chuck | February 6, 2007 9:15 AM
MJ Memphis | February 4, 2007 07:02 PM
Could this be aimed at the Turks?
If it's aimed at the Turks, it is probably aimed at Turkey's Kurdish minority. Don't forget, the PKK (the Kurdish communist party in Turkey) was committing terrorist acts in Germany in the early to mid 1980s.
I doubt that it is aimed at the Turks, although Frau Merkel's government has signaled the fact that they don't want Turkey admitted to the EU.
Posted by: raj | February 6, 2007 9:22 AM
George -
That assumes they actually believe their own holocaust denial, which is a completely different question.
No it isn't. I generally make the assumption that people believe the bullshit they spew. Even if they do not, unless they are on record as admitting they do not, in law, it must be assumed that they do believe what they spew.
What about restrictions on advertising for the sake of "public decency", i.e. no naughty words and no nudity, at least at certain times and places? This is a huge area where freedom of speech tends to be more curtailed in the US than in the EU. Is this justifiable? Maybe as public safety?
The legality of those restrictions is not justified. Though, without the legal restrictions many venues would change very slowly, some hardly at all. There are a lot of people who would happily express their distaste for such advertising with their pocketbooks. Which is a far superior to using the law to restrict advertising.
And if you grant public safety is a legitimate restriction on speech, perhaps the real (or at one time real) justification for the holocaust denial ban is public safety.
I grant that public safety is a legitimate restriction, only under very narrow parameters. In cases such as shouting snake on an airplane, intent to cause harm must be proved. There also needs to be an injured party.
Think incitement to hatred. Think political marches. Think football hooligans.
This is a huge leap from holocaust denial. I am not sure about the phrase "football hooligans," but I am assuming that there is violence involved. That would make it the only potentially legitimate restriction on speech, but again, the intent to incite violence must be proved - a very tricky issue to deal with.
The incitement to hatred is a misnomer, it assumes that the people being incited, aren't already bigoted morons. But even given the supposition that there would be massive conversions going on, it is still not a legitimate excuse to restrict speech.
As for political marches, if only more people cared enough to do it. Do you think it would have been preferable for the Ukrainian people to just stay home, instead of taking to the streets to dispute the very sketchy election results in '04? For sure, such political movements can be very dangerous. The U.S. for the last six years is a good example of that. But when we start to restrict political speech, everybody loses.
I honestly don't know enough about the specifics of the ban to say much more than it requires a bit more thought than has been given here.
No, it does not. This is dangerous legislation - there is no need to think about how bad it is, it is nothing more than an inroad for the state to stifle debate, even legitimate debate, in academia. It is a way to allow the government and courts, decide what is acceptable historical fact, even in cases where the evidence isn't in yet, where investigations are still ongoing. This would cut to the heart of that and allow the state to decide what the acceptable "facts" are, instead of allowing things to take their natural course.
States that make it illegal to deny the holocaust, to offend the delicate sensibilities of religionists or even to offend homosexuals, need to be struck down. We do not need more laws restricting speech, we need less of them.
It really doesn't matter what the intention of the laws are. A lot of horrible things happen as the result of good intentions. I am sure that Hugo Chavez, thinks it's a great idea to change his countries constitution, so that he can run for president over and over and over. I am sure that Castro had very good intentions, so many years ago. I would even argue that Lenin had plenty of good intentions, as he led the overthrow of the Russian provisional government.
Restrictions on speech, are the antithesis of any functional democracy. The more restrictions that exist, the less democratic a state becomes. The more dissent is stifled, the stronger the validity of that dissent becomes, true or not. There is nothing to hide here. The evidence for the holocaust is overwhelming and perfectly capable of standing up against the bullshit and propaganda of revisionists. There is no need for laws to "protect" that overwhelming, obvious truth. Such laws are absolutely counter intuitive and quite dangerous.
Posted by: DuWayne | February 6, 2007 12:17 PM