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How to Cope with the Denial of Genocide? Marcello Flores (University of Siena) and Marialaura Marinozzi (Sant’Anna School for Advanced Studies, Pisa)

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How to Cope with the Denial of Genocide? Marcello Flores (University of Siena) and Marialaura Marinozzi (Sant’Anna School for Advanced Studies, Pisa) The Laws of Memory: How to cope with the denial of genocide? Marcello Flores (University of Siena) and Marialaura Marinozzi (Sant’Anna School for Advanced Studies, Pisa) The first question we want to handle is to understand why, in the last years, the necessity to punish by law genocides' denialists has been implemented and increased, and why crimes such as war crimes, crimes against humanity etc have been notably insert within penal laws both at national and international levels. Taking into consideration the fact that we don’t live in a historical period in which violence and genocide acts are strongly present in our daily life in comparison with other periods in the last century, such as for example the 70’s and the 90’s, maybe we can find the reason why we have many legislations that are trying to define, limit and prove when an act is genocide in the idea that genocide is a process that the International community must try to prevent and stop in its very initial steps. Talking about denial means talking about free speech: what are the acceptable limits of denialist discourse in a free society? Should all denial be suppressed? Should it be permitted in the interest of preserving a liberal public sphere? In the recent years many countries in the west have adopted various approaches ranging from monitoring denialist discourse to punitive measures including fines, imprisonment and deportation. The spectrum of policies towards deniers, from permissive to persecutory, is mirrored by the debate among genocide scholars. Those who call for punitive measures against deniers stress the link between denial and genocide, including future genocides, as well as the personal suffering that denial inflicts on genocide’s survivors and their descendants. The opposing view does not dispute the corruption of scholarship that genocide denial represents however, it rejects the authority of the State to punish “speech crimes”, it stresses the arbitrariness that governs which genocide denials are prohibited, it calls for proactive engagement and public denunciation instead of prosecution. One of the main argument in favor of the denial laws is the idea that the genocide denial is the last step of genocide. Juridically speaking there are, as we all know, different positions in particular between the U.S. and Europe: one of these is the question if the genocide denial is or not a new crime with respect to the Convention provisions such as, for example the article 3 “direct and public incitement to commit genocide”, and to the other general provisions related to xenophobia, racial discrimination etc.. In our opinion the genocide denial is related to the historical truth because other aspects such as xenophobic acts, racial discrimination etc. can be solved with ad hoc laws and provisions at national and at international levels. The fact that the “genocide denial “ issue is very much related with the concept of “historical truth” it is clear looking at the list of people that were convicted and/or prosecuted in the last years for such crime (almost all in 4 – Austria, France, Germany, Switzerland- of the 15 European States that approved genocide denial laws - Austria, Belgium, Bosnia and Herzegovina, Czech Republic, France, Germany, Hungary, Liechtenstein, Luxemburg, The Netherlands, Poland, Portugal, Romania, Spain, Switzerland). Council Framework Decision 2008/913/JHA of 28 November 2008 0n combating certain forms and expressions of racism and xenophobia by means of criminal law, in its article 1 “offences concerning racism and xenophobia” points c and d (xenophobic and racial acts) provide punishment for “publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court” only if related to the violence incitement and the hate against a target group as contemplated in the article 1 point a of the same Statute. This decision was probably made with the intention of equalize all genocides and crimes against humanity to the genocides actually recognized by law such as the Holocaust and in some cases the Armenian genocide, but it is still unenforceable by many countries and in some of them like UK, Ireland, Netherlands Denmark and Sweden declared that the national legislation is sufficient to prosecute every act that might incite xenophobia and racial discrimination included genocide denial and gross trivialization. The only case in which denialists (a few number looking to the data we have) are not pseudo historians and scholars or political activists from the extreme right is the case in which the denialist is a State. The two most famous cases on State denialists are the Holocaust denial from the Iran and its President, Ahmadinejad and the one on the Armenian genocide by the Turkish Government. It is possible to weaken these public positions with an international law or even a national law? It seems difficult to affirm that so. Do we have, as international community the duty to prosecute every single Iranian or Turkish citizen who repeats concepts and prejudices studied at school without any instruments against the heads of State that utilize history as propaganda and the denial for incite hate and racial discrimination strengthening their national identity? Each Government has the moral, civil and cultural duty to take the responsibility for the acts committed in the past, with the awareness that the reality is much more complex: we cannot be responsible for the crimes committed by our countrymen in the past but, at the same time, we cannot feel not involved in it. In the 1948 Genocide Convention, there is no provision regarding the hypothesis of genocide committed by a State because, according to the Convention, only individuals and state bodies can be considered as genocide perpetrators. This is one of the reason why the genocide as crime has been delegated to the International Tribunals with all the limits and the difficulties that we all know. Only Totalitarianisms established the historical truth by laws. The possibility that a Tribunal or a Government might be the subject capable to decide the type of the historic event defining it in a way or in another (genocide or not genocide) will build up, sometimes, a sort of “State truths” that might put in serious danger the freedom of speech and the open debate. Having said that, who should decide whether an historical event was or is (if it is still going on) a genocide, a crime against humanity or a war crime? Which is the organism in charge of establishing what kind of violence we faced in the past or we are facing now? If we don’t take into consideration only the Holocaust or the Armenian genocide even the scholars have a lot of different points of view, sometimes opposite. What can we do? Do we have to consider only the events judged by a Tribunal and declared as genocide or crime against humanity by law? Considering the Srebrenica case, for example, established by an international tribunal as a genocide, but still considered not a genocide but only ethnic cleansing by many scholars. On the Armenian case who has the power and the position to judge over it if at the time the event happened the genocide was not existing as a crime? The Government or the Parliament, as in the case of the French bill penalizing denial of the Armenian Genocide which, anyway, was rejected by the French Senate this May? If we look seriously at the problems related to the genocide’s definition (but the same is for the crimes against humanity where the judgements are still more ambiguous: for instance in the cases of Hiroshima and Nagasaki, the bombing in North Vietnam and Cambodia, the communist concentration camps like the Gulag and the Laogai) we must deal with the problem of “who” has the legitimacy and the authority to declare what is genocide and what is not. Only the International tribunals? Might be the National tribunals? And what about the role of the international scholars community? Maybe are the victims that can establish who was the targeted group? We would like to have, from the people in favor of genocide denial laws, answers to these questions. It is possible and credible have legislations so much different over a such sensitive topic? It is not by chance that the only historical event in which the denial it is clearly condemned by all it is the Holocaust. Who is speaking, four years ago, promoted a campaign against a bill presented in Italy – then abandoned – for penalizing the denial only of the Holocaust, arising again the argument of the uniqueness of the Shoah as the top rank in the evils of contemporary world. Looking always at the definition alone of genocide like not only a necessary but also a sufficient step, it is one of the danger that we must try to avoid. The analysis and the discussion over the definition it is indeed useful enabling to deepen the nature of the historical events considered as mass crimes; taking into consideration all the factors and the doubts of different opinions; pointing out the reasons, the responsibilities. With the denialists all this process is not possible and in some cases they will be seen as proud defenders and/or victims of the freedom of speech. In addition to that, to consider a Court decision on the genocide definition as the solution against denialists give them the possibility to present and defend their positions and, last but not least, to spread and implement their xenophobic ideas. It is important to understand why and when only in few cases hatred and racism become the path to genocide.
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