Preparatory Document

Preparatory document

Please notice that we recommend that you read the first ten pages of the first three documents, the last document is optional.

• International Holocaust Remembrance Alliance, Recognizing and Countering Holocaust Distortion: Recommendations for Policy and Decision Makers (Berlin: International Holocaust Remembrance Alliance, 2021), read esp. pp. 14-24 • Deborah Lipstadt, "Holocaust Denial: An Antisemitic Fantasy," Modern Judaism 40:1 (2020): 71-86 • Keith Kahn Harris, "Denialism: What Drives People to Reject the Truth," The Guardian, 3 August 2018, as at https://www.theguardian.com/news/2018/aug/03/denialism-what-drives- people-to-reject-the-truth (attached as pdf) • Optional reading: Giorgio Resta and Vincenzo Zeno-Zencovich, "Judicial 'Truth' and Historical 'Truth': The Case of the Ardeatine Caves Massacre," Law and History Review 31:4 (2013): 843- 886

Holocaust Denial: An Antisemitic Fantasy Deborah Lipstadt

Modern Judaism, Volume 40, Number 1, February 2020, pp. 71-86 (Article)

Published by Oxford University Press

For additional information about this article https://muse.jhu.edu/article/750387

[ Access provided at 15 Feb 2021 12:42 GMT from U S Holocaust Memorial Museum ] Deborah Lipstadt

HOLOCAUST DENIAL: AN ANTISEMITIC FANTASY*

*** When I first began working on the topic of Holocaust deniers, colleagues would frequently tell me I was wasting my time. “These people are dolts. They are the equivalent of flat-earth theorists,” they would insist. “Forget about them.” In truth, I thought the same thing. In fact, when I first heard of Holocaust deniers, I laughed and dismissed them as not worthy of serious analysis. Then I looked more closely and I changed my mind. Denial flies in the face of not just reams of documents, but of basic logic. The Holocaust has the dubious distinction of being the best documented genocide in the world. For deniers to be right, who would have to be wrong?

• The survivors would have to be wrong.1 • The bystanders, the non-Jews who lived in the countries on the eastern front and saw their Jewish neighbors being marched to the outskirts of their towns, where they were shot and left in ditches.2 • The people who lived in towns near the death camps and watched the trains go into the camps ﬁlled with people and emerge empty.3 • The scores of historians who have studied and written about the Holocaust over the past sixty years would either have to be part of this massive conspiracy or have been completely duped. • But, above all, the perpetrators themselves—those who actually admitted their guilt—would have to be wrong.

Survivors say, “this was done to me.” Perpetrators say, “I did it.”4 This, of course, is no small thing, for in criminal cases, the perpetrator’s

*Portions of this paper are drawn from my book Antisemitism Here and Now (New York, 2019).

doi:10.1093/mj/kjz019 ß The Author(s) 2020. Published by Oxford University Press. All rights reserved. For permissions, please e-mail: [email protected] 72 Deborah Lipstadt admission of guilt has more clout than the victim’s accusation. How can deniers explain that, in not one war crimes trial since the end of World War II, has a perpetrator of any nationality denied that these events occurred? They may have said, “I was forced to kill,” or “I had no choice,” but not one asserted that it did not happen. Yet deniers, who have no direct connection to the killing fields, claim they know better. There are other illogical inconsistencies to deniers’ arguments. Why has Germany shouldered the enormous moral and financial responsibility for the crimes committed in the Holocaust, if it did not happen?5 Of course, according to the deniers, the answer to this question is quite simple: In 1945, German officials were forced into a false admission of guilt by “the Jews,” who, with the complicity of the Allies, threatened to prevent Germany’s reentry into the “family of nations” if it did not falsely admit to this crime. But this too makes little sense. German leaders had to know that to admit to this terrible crime would impose upon the nation a horrific legacy, one that would become an integral part of its national identity. Why would a county take on such a vast historical burden, if it was innocent? Moreover, sixty years after the end of the war, with Germany now a political and economic leader of the “family of nations,” it could have proclaimed that, “it’s not true; the Jews made us say this back in 1945.” It could have marshaled the puta- tive “evidence” demonstrating that it had been forced into admitting to this crime. Instead the German government created a massive memorial in Berlin to the murdered Jews. There is yet another bit of illogic on which deniers depend. They demand to be shown the one specific piece of evidence that would con- vince them there was a Holocaust: Hitler’s written order authorizing the murder of all of Europe’s Jews. In all likelihood, Hitler realized the folly of affixing his signature to such an order while the war was being fought. More importantly, historians are not troubled by the absence of such a document. They never rest their conclusions on one document, particularly when the Third Reich left a vast cache of evidence attesting to a government-directed program whose goal was the annihilation of the Jewish people. Deniers, of course, will insist that “the Jews” have forged these documents. But, if that were the case, why didn’t the Jews also forge the all-important document from Hitler himself? The list of illogical arguments goes on. Deniers contend that had the Third Reich, a regime they describe as the epitome of efficiency and power, wished to murder all the Jews, it would have ensured that no witnesses remained alive to testify about the death camps. Therefore, the fact that there were survivors alive at the war’s end constitutes proof that there was no genocide and that the survivors’ testimonies are lies. One need not be familiar with any documentary evidence to recognize Holocaust Denial 73 the fallacious nature of this argument. Simply put: The Third Reich was also intent on winning the war, which it did not do. Therefore, the assumption that the Third Reich succeeded in all it set out to do is false. Anything based on that premise is equally false. Struck by the complete lack of logic in any of their claims, I initially dismissed the Holocaust deniers and their theories out of hand. Then two respected historians—Yehuda Bauer and Yisrael Gutman— suggested I take a closer, more systematic look. They wondered how deniers—given the implausibility of their arguments—had been able to attract any adherents at all. Though still skeptical, I took up their challenge and thought this would be, at most, a two-year project before I moved on to other matters. I was wrong. It was not deniers’ arguments that intrigued me. They remained illogical and evidence free. It was their modus operandi. It soon became apparent to me that deniers were a new type of neo-Nazi and white supremacist. Unlike previous generations of neo-Nazis—people who openly celebrated Hitler’s birthday, sported SS-like uniforms, and hung swastikas at meetings where they would give the Sieg Heil salute—this group eschewed all that.6 They were wolves in sheep’s clothing. They didn’t bother with the physical trappings of Nazism—salutes, songs, and banners—but proclaimed themselves “revisionists”—serious scholars who simply wished to revise “mistakes” in the historical record, to which end they established an impressive-sounding organization—the Institute for Historical Review—and created a benign-sounding publication—the Journal for Historical Review.7 Nothing in these names suggested the revisionists’ real agenda. They held conferences that, at first blush, seemed to be the most mundane academic confabs. But closer inspection of their publications or conference programs revealed the same extremism, adulation of the Third Reich, antisemitism, and racism as the swastika-waving neo-Nazis. This was extremism posing as rational discourse. Among the leading purveyors of Holocaust denial arguments are far-right, neo-Nazi, and white power groups. Their adulation of Nazi ideology, “Aryan” superiority, and, above all, of Adolf Hitler make them perfect candidates for denial. They are masters of inconsistency. They argue that murdering the Jews was entirely justified, but that it never happened. I suppose you could call this the “no, but” argument. “No, it didn’t happen. But, it should have.”

FACTS, OPINIONS, AND ... LIES

Many people have complimented me for consistently confronting deniers and for being willing to stand up to them. While I appreciate the 74 Deborah Lipstadt accolades, they are, in fact, not fully deserved. It is true that I have spent time studying their lies and inconsistencies. However, I have not entered into debate with them. I refuse to do so for a simple reason: they are liars and one cannot debate a liar. I will debate someone who holds a diametrically opposed position on a matter about which I am quite passionate. But, I cannot debate a person who has a record of lying and falsifying history. It is akin to trying to nail a blob of jelly to the wall. I learned something from this as well. Generally speaking, people differentiate between facts and opinions—you can have your own opinions, but not your own facts. But in the case of deniers, there are facts, opinions, and lies. In 2000, when I was on trial in London for libel, having been sued by David Irving, then one of the world’s leading deniers, for having called him a denier, we had two choices for a legal strategy. We could have marshaled all the documentation of the Holocaust, which is vast, and placed it before the judge. That, however, would have created a “level playing ﬁeld” with a man who lied and distorted the evidence. It would have become a “he said/she said” kind of exchange. It would have elevated his lies into his opinions. Instead, we chose to do something else. Rather than prove what happened, we proved that what David Irving and, by extension, all deniers say happened, did not happen. We tracked all the deniers’ “proofs” back to their sources and found that imbedded in each of the claims made about the Holocaust was a falsiﬁcation, invention, distortion, change of date, or some other form of untruth. Once these lies were exposed, his arguments collapsed.

HOLOCAUST DENIAL: BUILT ON A FOUNDATION OF ANTISEMITISM

As should be obvious, Holocaust denial is, quite plainly, a form of antisemitism. It is not about history. It is about attacking, discrediting, and demonizing Jews. The claims of the deniers—that the Jews planted evidence, got German prisoners of war to admit to crimes they did not commit, and forced Germany to shoulder a tremendous financial and moral burden when the war ended—are predicated on the notion of the mythical power of the Jews, which, they firmly believe, was extensive enough to realize this vast conspiracy. Unconcerned about how their actions would affect millions of people and with only their own political and financial benefit in mind, the Jews created the myth of the Holocaust in order to obtain a state of their own and extract vast amounts of money from Germany. Then, according to this theory, they proceeded to displace other people from their land in order to gain sovereignty for themselves. These assertions rely on classic Holocaust Denial 75 antisemitic tropes, the same ones found throughout two thousand years of antisemitic accusations. Just as the Jews during the Second Temple period at the time of Jesus persuaded the Roman Empire, then the ruler of Palestine, to do to their bidding and crucify Jesus, so too they persuaded the Allies to create evidence of a genocide. They did so for their own financial and political gain. Deniers are not flat-earth equivalents or just plain loonies. Theirs is not a cognitive error that can be rectified by showing them additional documentation or evidence. They have been adherents to and purveyors of a conspiracy theory. They are, pure and simple, antisemites, and their agenda is to reinforce and spread the very antisemitism that produced the Holocaust.

DENIAL: A NEED FOR CONCERN?

But should we be worried about these people? Are they an imminent threat or just a nasty group of haters and falsifiers of fact? While I do not panic, I do believe that there is room for concern. Deniers have learned to use social media to their great advantage. It is social media that has really given these extremists a new lease on life. Holocaust denial publications used to be mailed in plain envelopes to anonymous post office boxes. In many countries, including Germany, mailing this material was against the law. Today, denial materials are easily accessed with a basic computer search engine. Proponents of these noxious ideas can conveniently spew their hatred without revealing their identity. It’s much easier for them to find one another, and they now have a robust platform that allows them to amplify and spread their views with an ease that was unthinkable decades earlier. Social media allows the extremists not only to communicate more easily with one another, but also to make their voices and views heard beyond their adherents. Through the various social media platforms, these hate-mongers can reach a wider audience of people, including those who might previously not have been exposed to these messages of hate. There are, as recent studies have shown, different levels of extremism. There are those at the center, the hardcore. Beyond them are those who may read the materials and believe them, but do not make denial the main focus of their lives. Beyond that are those who read the materials but do not take part in any other denial related activities. Finally, there are those who may not read the materials but are in conversation with those who do. Slowly these ideas seep into the mainstream. Some indication of the increased openness of deniers was evident on Holocaust Remembrance Day in 2017 when the BBC interviewed a 76 Deborah Lipstadt survivor. The producers were “shocked” by the “staggering” number of “brazen” Holocaust denial and antisemitic phone calls and social media posts they received. Though they had previously broadcast shows on the Holocaust and had received some antisemitic and denial comments, this response, one producer told me, was “unprecedented ... unlike anything we have seen before.” They were so deeply unsettled that they invited me to appear on a subsequent show, one that addressed this denial.8 But denial is not just something engaged in by the far right. In many segments of the Muslim community, including among European Muslims, there is an inclination to deny this historical reality. There are schools in Europe where teachers cannot teach about the Holocaust because the students insist it never happened and the material the teachers present is dismissed as false.9 Ultimately, it is hard to gauge whether deniers have increased in number or are using social media to make themselves seem more numerous than they are. While either alternative is disturbing, they clearly feel more emboldened than ever before.

SOFTCORE DENIAL

What I have described thus far is what I would call hardcore denial, i.e., denial of the facts of the Holocaust. There is another form of Holocaust denial, something I call softcore denial. Rather than deny that the Holocaust happened, softcore deniers create a moral equivalency with other events. Let me offer a few examples. Israelis are often described as the equivalent of Nazis. I have seen protestors on the streets of London, New York, and other cities both in North America and Europe carry placards with the image of Israeli leaders in Nazi dress. Sometimes the signs read “Israelis ¼ Nazis.” During one of Israel’s wars with Hamas in Gaza, at a rally in Berlin people chanted “Jews to the gas.” At a meeting of the Security Council at the United Nations the Venezuelan ambassador asked, “What does Israel plan to do with the Palestinians? Will they disappear? Does Israel seek probably to wage a final solution? The sort of solution that was perpetrated against the Jews?” What is described here is what many scholars call “genocide inversion,” turning the victims of genocide into perpetrators. In most cases, it is Israelis, and not Jews in general, who are equated with Nazis. This tactic can be traced to the Soviet Union which, within a week after the conclusion of the Six-Day War, was calling the then Israeli Defense Minister Moshe Dayan a “pupil of Hitler and a darling of the Nazis all over the world.”10 This Holocaust inversion is a form of softcore Holocaust denial, in which the event to which it is being compared Holocaust Denial 77 shares none of the characteristics of the Holocaust. It often presents itself in the “yes, but” context. “Yes, what happened to the Jews was awful. But look at what the Israelis (i.e., Jews) are doing today to the Palestinians.” Softcore deniers speak of a “genocide of the Palestinians” or of the “Nazi-like tactics of the Israeli Army.” Regarding the Venezuelan ambassador’s comments at the United Nations, after some criticism he subsequently apologized “if he had offended Jewish people [emphasis added].”11 (It is hard to imagine how he could pos- sibly think that his remarks might not offend Jews, since they seemed designed to do precisely that.) In 2013, a British member of Parliament used the opportunity of Holocaust Remembrance Day to link Israel with the Nazis. After signing the House of Parliament’s Book of Remembrance he said: “Having visited Auschwitz twice ... I am sad- dened that the Jews, who suffered unbelievable levels of persecution during the Holocaust, could within a few years of liberation from the death camps be inflicting atrocities on Palestinians in the new State of Israel and continue to do so on a daily basis in the West Bank and Gaza.” When he was accused of Holocaust inversion and antisemitism, he defended himself by saying that he was only attacking those Jews who did these things. “So, if you’re a Jew and you did not do it, then I’m not accusing you. I’m saying that those Jews who did that and continue to do it have not learned those lessons.”12 He was, of course, equating what the Nazis did with what the Israelis were doing. I want to stress that one can totally disagree with Israel’s policies vis-a-vis the Palestinians, but to equate this with a genocide is beyond the pale. A similar attack was mounted by Oxford professor Tom Paulin in an interview with Al-Ahram, the Egyptian newspaper. He described Jewish settlers in the West Bank as “Nazis and racists,” recommended that they be “shot,” and then stated that “I feel nothing but hatred for them.” Even though his comments were made on the same day that a suicide bomber in Jerusalem killed six people and injured sixty, he not only stood by his remarks but also added words of empathy for Palestinian suicide bombers. His only critique of the bombers was of the efficaciousness of their actions. “I can understand how suicide bombers feel,” he said. “I think, though, it is better to resort to con- ventional guerrilla warfare. I think attacks on civilians in fact boost morale.”13 Some of his colleagues dismissed his remarks as “‘Tom being Tom’—a loose cannon whose thinking is so erratic it is not worth dig- nifying with a response.”14 Would they have been so understanding had he made these comments about someone who opened fire on an abor- tion clinic because he sincerely believed that the people inside were murdering babies? Many of the people who make these accusations contend that their remarks are not antisemitic because they concern Israel specifically, 78 Deborah Lipstadt and not Jews in general. But their accusations against Israelis hearken back to classic medieval antisemitic accusations—murdering non-Jews to achieve world domination. Some observers posit that these comparisons are used precisely because by upsetting people—Jews in particular—they draw immediate attention. In other words, they constitute a kind of “Jew-baiting.”15 Let me stress that criticism of Israel’s policies, however severe, does not constitute antisemitism. False analo- gies to the Holocaust and this kind of inversion, does.

BRANDING VICTIMS AS COLLABORATORS

Another form of softcore denial has been engaged in by the former mayor of London, Ken Livingstone. He recently told the press that, “During the 1930s, Hitler collaborated with the Zionists and supported them because he believed that a possible solution to his problem—the Jews—was that they should all move to Palestine. Then in the 1940s that changed, and he decided on genocide.”16 Unlike white supremacists who might defend Hitler, Livingstone condemned him as “a monster from start to finish.” But then he made it sound as if the Zionists were in cahoots with him. “It’s simply the historical fact. His policy was originally to send all of Germany’s Jews to Israel, and there were private meetings between the Zionist movement and Hitler’s government which were kept confidential; they only became apparent after the war.” 17 Ken Livingstone can be described as a softcore denier or softcore denier-enabler—someone who provides the ammunition for the deniers. What Livingstone did was take a limited agreement between an organization of German Zionists and the Third Reich and misrepresent it to fit his own political agenda. The facts are that, in August 1933, the Zionist Federation of Germany and the Economics Ministry of the German government reached an agreement—which became known as the Transfer Agreement—that allowed German Jews who wanted to emigrate to Palestine to turn some of their assets into funds that they would use to buy goods in Germany which they could then export to their new home in Mandatory Palestine. These funds would have otherwise been frozen and confiscated by the Nazis. The agreement took three months to negotiate, but it was not a secret deal that “only become apparent after the war.” Because there was at the time an international boycott of German-made goods by Jews living outside Germany, the agreement was quite controversial, and was condemned by both the U.S. leadership of the World Zionist Congress and the Revisionist Zionist movement. There were also Nazis who opposed it. It was in place from 1933 until the German invasion of Poland in 1939. Holocaust Denial 79

Livingstone also falsely claimed that “the SS set up training camps so that German Jews who were going to go there [i.e., Palestine] could be trained to cope with a very different sort of country when they got there.” In fact, these camps were actually set up by German Zionists before the Nazis came to power. They were designed to prepare them for life in Palestine. Livingstone was sort of right on one point. When the Nazis came to power in 1933, the SS prohibited any singing and dancing at the camps. The best refutation to Livingston’s claims that Hitler thought his “Jewish problem” would be solved if all Jews moved to Palestine comes from Hitler himself, in this excerpt from Mein Kampf, which was published in 1925, fifteen years before, according to Livingstone, Hitler “went mad” in 1940 and decided to annihilate the world’s Jews. For while the Zionists try to make the rest of the world believe that the national consciousness of the Jew finds its satisfaction in the creation of a Palestinian state, the Jews again slyly dupe the dumb Goyim. It doesn’t even enter their heads to build up a Jewish state in Palestine for the purpose of living there; all they want is a central organization for their international world swindle, endowed with its own sovereign rights and removed from the intervention of other states: a haven for convicted scoundrels and a university for budding crooks.18 Hitler’s plans for the Jews of Palestine became part of the historical record during his meeting with the Grand Mufti of Jerusalem, Haj Amin al-Husseini, on November 28, 1941, in Berlin, during which he reassured the Mufti of his “active opposition to the Jewish national home in Palestine... . Germany was resolved, step by step, to ask one European nation after the other to solve its Jewish problem and at the proper time to direct a similar appeal to non-European nations as well.” And when the German Army eventually reached the Middle East from Caucasia, “Germany’s objective would then be solely the destruction of the Jewish element residing in the Arab sphere under the protection of British power.” 19 Critics such as Livingstone who claim there was a collaboration between Nazis and Zionists do so for one repugnant reason only: to imply that the Jews themselves were complicit in the Nazis’ horrendous crimes. Livingstone’s argument is rooted in an immoral equivalency that treats Nazis and Zionists as “ideological soulmates.”20 While not an exterminationist antisemite, Livingstone is an antisemitic enabler who provokes in others contempt for Jews.21 When criticized for antisemitic remarks, he reflexively casts himself as the victim of pro-Israel hacks. “There’s been a very well-orchestrated campaign by the Israel lobby to smear anybody who criticizes Israeli policy as antisemitic. I had to put up with thirty-five years of this.”22 He relies on this rhetorical device so frequently that sociologist David Hirsh has 80 Deborah Lipstadt branded it the Livingstone Formulation: “Accuse me of antisemitism and I will accuse you of smearing me in the name of Israel.”23 This Holocaust inversion of victims with perpetrators and “Holocaust- Zionist collaboration” plays politics with the Holocaust by accusing Jews of playing politics with the Holocaust. “It engages in victim competition by accusing Jews of engaging in victim competition. It obscures the actual relationship between Israel and the Holocaust by proposing all sorts of tangential, exaggerated and invented relationships between Israel and the Holocaust.”24

HOLOCAUST DENIAL ON A NATIONAL SCALE

In Eastern Europe we are witnessing softcore denial on a national level. What is taking place in a number of former Soviet bloc countries— particularly those governed by parties with strong nationalist orientations—is serious. They are currently engaged in blatant and conscious efforts to rewrite their countries’ histories. Strongly anti-communist, these governments are often the ideological and political heirs of the nationalist parties that collaborated with the Nazis during the war. They equate the evils of communism and Nazism. And who, they imply, was behind communist evils? The Jews of course. Some have gone even further, designating nationalists who collaborated with the Nazis and, in some instances, participated in the murder of Jews to be national heroes. At the same time, these governments have labeled as traitors those who fought with the Soviet-backed anti-Nazi partisan groups, including many Jews. In Lithuania in the early 1990s, one of the first acts of the post-communist government was the exoneration of Lithuanian nationalists who participated in the Holocaust. In 2004, after Lithuania had already qualified for membership in the EU and NATO, the state began to prosecute Jewish partisans as pro-Soviet collaborators who “paved the way for postwar Soviet ‘genocide.’”25 An academic paper posted on the website of the Lithuanian governmental body responsible for investigating war crimes questioned whether the Holocaust even constituted genocide. This paper argued that “although an impressive percentage of the Jews were killed by the Nazis, their ethnic group survived” and subsequently thrived. In contrast, the paper pointed out that the Lithuanian intelli- gentsia that was exterminated under Stalin has never been replaced.26 In Poland, the far-right nationalist Law and Justice party (PiS) has attempted to rewrite Poland’s World War II historical record. Anyone, or any institution, that told a less than stellar version of wartime Poland’s record, was attacked. Museum curators who tried to present an accurate portrait of Poland’s behavior during the war were fired.27 Holocaust Denial 81

Exhibits at various government-sponsored museums were reconfigured to stress Polish heroics and erase any complicity with the Germans.28 The situation escalated in the winter of 2018 when, after extended deliberation, the government passed a law making it illegal for anyone to assert that Poles cooperated or collaborated in any way with the Nazis in the persecution of the Jews. Norman Davies, a specialist in Polish history, described the law’s effort to paint Poles purely as victims as “a part of the present government’s attempt to rewrite history. It’s one of the pillars of every authoritarian or totalitarian regime, that they want to reorder the past to their own fantasies.”29 There were Poles who helped Jews. But there were also those, probably far more, who betrayed them. And there were Poles who murdered Jews on their own without any instigation by the Germans.30 This law did more than just fly in the face of historical and scholarly freedom. It constituted an attempt to obscure Poland’s long history of antisemitism, one that persisted during and even after World War II. A recently declassified 1946 State Department report assessed the situation of surviving Jews in post-war Poland. It described how Jews there were “fleeing” Poland in “panic” because of the attacks on them, some of which were facilitated by police. The report took particular note of the fact that Jews, whom the Germans had tried to annihilate, now preferred to live in Germany rather than in Poland. Jews were experiencing, the report contended, the continuation of the pre-war Polish nationalist antisemitism.31 With this bill, PiS intended to satisfy its rural and nationalist elec- toral base and to demonstrate to them “that Poland has risen from its knees and won’t be humiliated.”32 While this may have been the intent, the law did something else as well. It helped dredge up antisemitic sentiment. Suddenly antisemitism seemed to be everywhere: throughout social media, on television and in the press that supported the government.” The PiS-controlled media contended that outside forces “Jews in particular — want to prevent Poland from telling the truth about its own history.”33 Responding to strong international criticism, the Polish prime minister, Mateusz Morawiecki, justified the bill by arguing that “there were Polish perpetrators, as there were Jewish perpetrators, as there were Ukrainian; not only German perpetrators.” While there were Jews who served on the ghetto police forces or as members of the Judenrate€ ,the ghetto councils established by the Germans, one could not equate their actions with the genocidal activities of the perpetrators and their collaborators, including many Poles. The Jews who “collaborated” generally did so to save themselves and their family from certain death. In contrast, Poles who collaborated did so, by and large, out of either antisemitic or material (money) considerations.34 There have been 82 Deborah Lipstadt amendments and revisions to the law, but its essence remains the same. The Poles must be seen as one thing and one thing only: victims. In Hungary there has been a consistent effort by the government of Prime Minister Viktor Orban to diminish, if not deny, the role of Hungarians in the murder of the Jews during the war. As Germany’s wartime ally, the Hungarian government persecuted its Jews severely but resisted German attempts to deport them. Then in March 1944, upon discovering that the Hungarian government was engaging in armistice negotiations with Britain and the U.S., the German Army invaded Hungary and established a puppet government. Most Hungarian government officials remained in place and enthusiastically carried out German orders. That spelled the end for Hungarian Jews. Adolf Eichmann, who was in charge of deporting Hungary’s Jews to death camps, had only a few hundred SS officers under his command, hardly enough to destroy the substantial Hungarian community. But he was energetically assisted by Hungarian police, militia, railway officials, and private citizens. With their help, over the course of approximately seven weeks, he organized the deportation of more than half a million Hungarian Jews to Auschwitz- Birkenau, where more than four hundred thousand were murdered. In an effort to strengthen Hungarian nationalism and erase an inconvenient history of collaboration and complicity, Orban depicted Hungary as a victim, not a perpetrator, of war crimes during World War II.35 Any attempt to challenge this view and insist that Hungary own up to its past crimes has been interpreted by the government and its supporters as an attempt to blacken the country’s good name and reputation. Western Europe is not immune to this type of historical reconfigu- ration. On April 9, 2017, Marine Le Pen, the then president of the National Front (a far-right political party in France) and a member of France’s National Assembly, contended that France bore no responsibility for the notorious Vel d’Hiv roundup of more than 13,000 Jews (including approximately 4,000 children) in July 1942. Jews were held at a stadium near the Eiffel Tower in Paris for five days in searing heat and horrific conditions—little food, water, or facilities—until they were deported to Auschwitz, where they were murdered.36 This roundup was planned by the Gestapo and members of France’s collaborationist government, was conducted by French police, and supervised by French officials. But for decades after the war the French government steadfastly denied any complicity in the affair. That changed in July 1995 when the then President Jacques Chirac unequivocally declared, “France, the homeland of the Enlightenment and of the rights of man, a land of welcome and asylum—France, on that day, committed the irreparable. Breaking its word, it handed those who were under its protection over to their executioners.” Every subsequent French president and leading politician has reaffirmed that statement. But in 2017 Holocaust Denial 83

Le Pen attacked France’s willingness to own up to its blemished historical record. She condemned the teaching of the July roundup in French schools. “I want them to be proud to be French again,” she stated. And in July 2017, Jean-Luc Melenchon, a left-wing member of the National Assembly, echoed Le Pen’s comments, declaring it “totally unac- ceptable” to say that, “France, as a people, as a nation, is responsible for this crime [of the deportation of the Jews].”37 But this kind of historical obfuscation does not come only from those at the more extreme ends of the political spectrum. In 2018 the French government issued its annual Book of National Commemorations. It was designed, the French Minister of Culture wrote in the introduction, to bring French citizens “great pleasure and beautiful emotions!” Included in the events commemorated in the book was the 150th anniversary of the birth of Charles Maurras. Maurras, the editor of the antisemitic newspaper L’Action Francaise, wrote numerous vitriolic articles about Jews. He described French collaboration with the Nazis as a “divine surprise.” After the war, he was imprisoned for his collaboration with the Nazis and for “betraying French resistance workers to the Nazis.”38 Though the French ultimately withdrew the book in order to remove Maurras’ name, many critics wondered how a man, whose only claim to “fame” was his antisemitism and pro-Nazism, had been included in the ﬁrst place. Finally, let me put this kind of denial in a larger context. This rewriting of history is part of a bigger issue, namely an attack on democracy, a weakening of democratic institutions, and with it a feeding of the antisemitic “beast.” These things never happen in isolation. They may start with the Jews but rarely end there. Holocaust denial is not the danger. It is what follows in its wake that should scare us.

EMORY UNIVERSITY

NOTES

1. For survivor testimonies, see: Yale University Library, Fortunoff Archive for Holocaust Testimonies, http://web.library.yale.edu/testimonies; University of Southern California, SHOAH Foundation, https://sﬁ. usc.edu/full-length-testimonies; United States Holocaust Memorial Museum, https://www.ushmm.org/remember/the-holocaust-survivors- and-victims-resource-center/survivors-and-victims/survivor-testimonies 2. Many of the witnesses from the areas in which these murders occurred have spoken of what they saw. See, for example, Patrick Debois, The Holocaust by Bullets: A Priest’s Journey to Uncover the Truth Behind the Murder of 1.5 Million Jews (New York, 2009). See also the interviews conducted by 84 Deborah Lipstadt

Claude Lanzmann for his documentary Shoah, https://www.ushmm.org/ online/ﬁlm/docs/shoahstatus.pdf. 3. See, for example, Claude Lanzmann’s interviews in Shoah with some of the villagers who lived near Treblinka. Sue Vice, Shoah (Basingstoke, 2011), p. 77. 4. For a collection of interviews letters, journal entries, and testimony of perpetrators including from those who put the Zyklon B into the gas chambers and those who participated in the shootings on the eastern front, see Ernst Klee, Willi Dressen and Volker Riess (eds.), “The Good Old Days”: The Holocaust as Seen by its Perpetrators and Bystanders (Old Saybrook, CT, 1991). 5. Many perpetrators who were tried for war crimes after World War II argued that they had no option but to follow orders and kill the victims otherwise they themselves would have been killed. However, this does not seem to have been the case. As David Kitterman concludes after an investigation of over 100 cases of Germans who refused to execute civilians, “the most remarkable conclusion about this investigation is the failure to ﬁnd even one conclusively documented instance of a life-threatening situation (shot, physically harmed, or sent to a concentration camp) occurring to those who refused to carry out orders to murder civilians or Russian war prisoners. In spite of general assumptions to the contrary, the majority of such cases resulted in no serious consequences whatever.” David Kitterman, “Those Who Said ‘No!”: Germans Who Refused to Execute Civilians during World War II.” German Studies Review, Vol. 11, No. 2 (1988), pp. 241--54. 6. Gideon Resnick, “David Duke: Trump Makes Hitler Great Again,” The Daily Beast, March 17, 2016. 7. For background on the Institute for Historical Review and revisionism, see Richard Evan’s expert report, “David Irving, Hitler and Holocaust Denial,” which was submitted to the court by the defense in Irving v. Penguin UK and Deborah Lipstadt, HDOT.org, https://www. hdot.org/evans/#evans_3-5. 8. “Jeremy Vines Show,” BBC Radio 2, February 18, 2017. Relevant interview begins about 1.05 http://www.bbc.co.uk/programmes/ p04tj3gx; Conversation with producers of Jeremy Vines Show, February 18, 2017. 9. Eliezer Sherman, “Sarkozy: There are Schools in France Where You Cannot Teach the Holocaust,” Algemeiner, June 8, 2015; Alison Smale, “Teaching the Holocaust to Muslim Germans, Or Not,” New York Times, June 17, 2015; Benjamin Weinthal, “German Muslim Students Protest Holocaust Remembrance, Attack Israel,” Jerusalem Post, January 27, 2017. 10. Walter Laqueur, The Struggle for the Middle East: The Soviet Union and the Middle East, 1958-68 (London, 1972), p. 54. 11. Seth Frantzman, “The Outrage of Comparing Israel to the Nazis,” Algemeiner, May 10, 2016. Holocaust Denial 85

12. Rowena Mason, “Lib Dem MP Condemned for Linking Israeli Treatment of Palestinians with Holocaust,” The Telegraph, January 25, 2013. 13. Sarah Hull, “Death to Jewish Settlers, Says Anti-Zionist Poet,” The Guardian, April 13, 2002. 14. Peter Foster, “What are Oxford Dons to Make of Tom Paulin?” The Telegraph, April 27, 2002. 15. Chip Berlet (ed.), Constructing Campus Conflict: Antisemitism and Islamophobia on US College Campuses, 2007--2011. Political Research Associates Report, 2014, p. 24. 16. “Ex-London Mayor Ken Livingstone Reaffirms Remarks About Nazi Support for Zionism,” Haaretz, September 5, 2016. 17. John Stone, “Labour Antisemitism Row: Read the Ken Livingstone Interview Transcripts in Full,” Independent, April 28, 2016; Ken Livingstone Stands by Hitler Comments,” BBC.co.uk, April 30, 2016. 18. “Extracts from Mein Kampf by Adolf Hitler,” Yad Vashem, www.yadvashem.org/docs/extracts-from-mein-kampf 19. Documents on German Foreign Policy 1918-1945, Series D, Vol. XIII, London, 1964. 20. Paul Bogdanor, “An Antisemitic Hoax: Lenni Brenner on Zionist ‘Collaboration’ With the Nazis,” Fathom Journal, http://fathomjournal. org/an-antisemitic-hoax-lenni-brenner-on-zionist-collaboration-with-the- nazis/ . 21. David Baddiel, “Why Ken Livingstone Has It So Wrong over Hitler and Zionism,” The Guardian, April 6, 2017. 22. Jon Stone, “Labour Antisemitism Row: Read the Ken Livingstone Interview Transcripts in Full,” Independent, Independent Digital News and Media, April 28, 2016; Ken Livingstone, “This is About Israel, Not Antisemitism,” The Guardian, March 4, 2005. 23. Lesley Klaff, “Holocaust Inversion,” Israel Studies, Vol. 24, No. 2 (2019), pp. 73--90. 24. David Hirsh, Contemporary Left Antisemitism (New York, 2017), pp. 11ff, 76--77. 25. Daniel Brook, “Double Genocide,” Slate, July 26, 2015. 26. Ibid. 27. Florian Peters, “Remaking Polish National History: Reenactment over Reflection,” Cultures of History Forum, May 17, 2017, www.cultures-of- history.uni-jena.de/debates/poland/remaking-polish-national-history- reenactment-over-reflection/. 28. In July 2017, I visited the new World War II museum and the Solidarity Center in Gdansk, Poland. Conversations with curators, researchers, and others involved in the building and administration of these two institutions, revealed the way history has become completely politicized. Ibid. 29. Rachel Donadio, “A Museum Becomes a Battlefield Over Poland’s History,” New York Times, November 9, 2016; Soraya Sarhaddi Nelson, “Nationalist Polish Government Wants Changes to World War II Museum,” National Public Radio, March 25, 2017; Nina Porzucki, 86 Deborah Lipstadt

“Poland’s Right-Wing Government Thinks This WWII Museum Isn’t ‘Glorious’ Enough,” Public Radio International, February 23, 2017; “Historians Defend Scholar who Studies Poland and Holocaust,” History News Network, June 20, 2017. 30. Jan T. Gross, Neighbors: The Destruction of the Jewish Community in Jedwabne, Poland (Princeton, NJ, 2001). 31. United States Department of State, Intelligence Research Report, OCL- 2312, May 15, 1946, pp. 22--24, http://www.wiesenthal.com/atf/ cf/%7B54d385e6-f1b9-4e9f-8e94-890c3e6dd277%7D/INTELLIGENCE- RESEARCH-REPORT-DEPT-OF-STATE_022218.PDF. 32. Griff Witte, James McAuley and Luisa Beck, “In Laws, Rhetoric and Acts of Violence, Europe is Rewriting Dark Chapters of Its Past,” Washington Post, February 19, 2018. 33. Jan Gross, “Poland Death Camp Law is Designed to Falsify History,” Financial Times, February 6, 2018; Jonah Shepp, “Poland’s Holocaust Law and the Right-Wing Desire to Rewrite History,” New York Magazine, February 3, 2018. 34. Cnaan Liphshiz, “Poland’s Prime Minister Said Some Jews Collaborated with Nazis. Scholars Say He Distorted History,” Jewish Telegraphic Agency, February 20, 2018. 35. James Kirchick, “Hungary’s Ugly State-Sponsored Holocaust Revisionism,” Tablet, March 13, 2017. 36. Adam Nossiter, “Marine Le Pen Denies French Guilt for Rounding Up Jews,” New York Times, April 10, 2017. 37. “Far-Left French Leader Slams Macron for Accepting French Complicity in Holocaust,” Haaretz, July 19, 2017 38. Elian Peltier, “France Rethinks Honor for Charles Maurras, Condemned as Anti-Semite,” New York Times, January 28, 2018. Recognizing and Countering Holocaust Distortion

RECOMMENDATIONS FOR POLICY AND DECISION MAKERS

1 First edition published in 2021 by the International Holocaust Remembrance Alliance (IHRA).

This publication was made possible through the financial support of the Federal Foreign Office, Berlin.

The views, opinions and positions expressed in this publication do not necessarily represent the views of the IHRA’s Member Countries.

All rights reserved. The contents of this publication may be freely used and copied for educational and other non-commercial purposes, provided that any such reproduction is accompanied by an acknowledgement of the IHRA as the source.

2 No one has the right to deny or downplay the worst crime in human history – the Holocaust. The purpose of the Global Task Force on Holocaust Distortion is to counter the dangerous lies and twisted facts about the Holocaust. We must learn from our past. We owe that to every victim and every survivor. We know where hatred and hate speech can lead if too many people shrug their shoulders and look away. It is up to us all to defend democracy.”

Heiko Maas, 2020

Memory has its own language, its own texture, its own secret melody, its own archeology, and its own limitations; it too can be wounded, stolen, and shamed; but it is up to us to rescue it and save it from becoming cheap, banal, and sterile. To remember means to lend an ethical dimension to all endeavors and aspirations.

Elie Wiesel, 2003

3 Contributions

This publication would not have been possible without the invaluable contributions offered by Juliane Wetzel (Center for Research on Antisemitism, Germany/ forthcoming Chair of the Committee on Antisemitism and Holocaust Denial), and Robert Williams (United States Holocaust Memorial Museum, USA/ Chair of the Committee on Antisemitism and Holocaust Denial).

The publication was produced through the assistance offered by experts and delegates of various Member Countries throughout the IHRA, as well as the representatives of the Permanent International Partner Organizations to the IHRA.

Special gratitude for their support is offered to Brigitte Bailer (Documentation Centre of Austrian Resistance, Austria), Jurmet Huitema-de Waal (The Anne Frank Foundation, Netherlands), Robert Rozett (International Institute for Holocaust Research, Yad Vashem, Israel), Kamilė Rupeikaitė-Mariniuk (Vilna Gaon State Jewish Museum, Lithuania), Andrea Szőnyi (USC Shoah Foundation, Hungary), Christian Wee (The Falstad Center, Norway), Mark Weitzman (Simon Wiesenthal Center, USA).

The content within was developed through a series of expert workshops and special thanks for their participation and contributions are extended to Johanna Barasz (DILCRAH -- Interministerial Delegation to Combat Racism, Anti-Semitism and Anti-LGBT Hate, France), Ildikó Barna (Eötvös Loránd University, Hungary), Zanet Battinou (Jewish Museum of Greece, Greece), Werner Dreier (erinnern.at, Austria), Karel Fracapane (UNESCO -- United Nations Educational, Scientific and Cultural Organization), Eva Fried (The Living History Forum, Sweden), Daniel Gerson (Institute for Jewish Studies, University of Bern, Switzerland), Annemiek Gringold- Martinot (National Holocaust Memorial Hollandsche Schouwburg, Netherlands), Andrew Hollinger (United States Holocaust Memorial Museum, USA), Jane Jacobs (Yad Vashem, Israel), Viktor Kundrák (OSCE -- Organization for Security and Co- operation in Europe/ODIHR -- Office for Democratic Institutions and Human Rights), Thomas Lutz (Topography of Terror Foundation, Germany), Alex Maws (AJR - The

4 Association of Jewish Refugees , UK), Anna Míšková (Museum of Romani Culture, Czech Republic), Henri Nickels (European Union Agency for Fundamental Rights, Austria), Zuzana Pavlovska (The Jewish Museum in Prague, Czech Republic), Tracey Petersen (United Nations, Holocaust Education Outreach Programme), Iris Rosenberg (Yad Vashem, Israel), Otto Rühl (Helsingør Gymnasium, Denmark), Leon Saltiel (World Jewish Congress), Paweł Sawicki (Auschwitz-Birkenau State Museum, Poland), Robin Sclafani (CEJI -- A Jewish Contribution to an Inclusive Europe, Belgium), Simonetta Della Seta (National Museum of Italian Judaism and the Shoah, Italy), Tome Shekerdjiev (OSCE -- Organization for Security and Co-operation in Europe/ODIHR -- Office for Democratic Institutions and Human Rights), Miško Stanišić (Terraforming, Serbia), Irena Šumi (University of Lubljana, Slovenia), Elisabeth Ungureanu (The “Elie Wiesel” National Institute for the Study of the Holocaust, Romania), Mike Whine (Community Security Trust, UK), and Gadi Luzzatto Voghera (Foundation Jewish Contemporary Documentation Center, Milan)

For the editing of this publication, particular thanks are extended to Toby Axelrod.

For their contributions to and review of this publication, warmest thanks are also extended to representatives of UNESCO, particularly Karel Fracapane.

Members of the Advisory Board responsible for guiding the publication’s production are: Robert Williams (United States Holocaust Memorial Museum, USA/ Chair of the Committee on Antisemitism and Holocaust Denial), Juliane Wetzel (Center for Research on Antisemitism, Germany/ forthcoming Chair of the Committee on Antisemitism and Holocaust Denial), Michael Baier (Head of Austrian IHRA Delegation), Karina Häuslmeier (Head of German IHRA Delegation), Lennart Aldick (IHRA Deputy Secretary General), and Kathrin Meyer (IHRA Secretary General).

The project is coordinated by Julana Bredtmann (Program Officer, IHRA Permanent Office).

5 Table of Contents

FOREWORD BY HEIKO MAAS 8

FOREWORD BY JULIANE WETZEL AND ROBERT WILLIAMS 10

ABOUT THE IHRA 13

INTRODUCTION 14

1. Why Should We Counter Holocaust Distortion?...... 15 2. What Is Holocaust Distortion?...... 17 3. Responding To Holocaust Distortion...... 21 4. What Can Policymakers Do?...... 25

I. IDENTIFYING AND MONITORING HOLOCAUST DISTORTION 28

1. Guidelines For Monitoring: Recognizing Distortion...... 30 2. Transparent Methodologies: Focusing In On Distortion...... 32 3. Domestic and International Cooperation: The Borderless Approach...... 33

6 II. TRAINING TO TACKLE DISTORTION 34

1. Sustainable Funding For Training: Staying Ahead Of The Game...... 38 2. What To Teach: The ABCs Of Distortion...... 40 3. Whom To Reach: Opinion Leaders And Mentors...... 43

III. STRENGTHENING INSTITUTIONS THAT ADDRESS THE HOLOCAUST: SAFEGUARDING THE HISTORICAL RECORD 46

1. Ensure Sustainable Support: Backing For Institutions That Defend History...... 49 2. Finding Frameworks For Group Visits And Encounter Programs: Preparation And Debriefing...... 51 3. Professional Development: Providing Direction For Guides...... 52 4. Strengthen International Cooperation: Distortion Knows No Boundaries...... 53

IV. RECOGNIZING AND RESPONDING ONLINE 54

V. ADDITIONAL RESOURCES 58

IHRA CHARTERS AND WORKING DEFINITIONS 61

Stockholm Declaration...... 61 2020 Ministerial Declaration...... 61 Working Definition Of Holocaust Denial And Distortion...... 61 Working Definition Of Antisemitism...... 61 Working Definition Of Antigypsyism/Anti-Roma Discrimination...... 61 International Memorial Museums Charter...... 61

7 Foreword

Over 75 years after the end of the Second World War, the field of Holocaust education, remembrance and research is now at a critical juncture. As a generation of Holocaust survivors sadly passes, we have an even greater duty to safeguard the record, to ensure that the truth of the Holocaust is fortified for future generations. We have a responsibility to counter its distortion.

Holocaust distortion erodes our understanding of historical truth. It is a persistent problem that benefits from a general lack of awareness, a problem that neither stops at national borders, nor is found only in countries directly affected by the Holocaust. It does require us all to counter it, as it undermines the values on which our multilateral order was built after the Second World War.

With this in mind, the German Presidency of the International Holocaust Remembrance Alliance (IHRA) established a Global Task Force Against Holocaust Distortion. From its inception, the Global Task Force recognized that cooperation, both among governments and with experts, civil society and international organizations, is crucial to address this phenomenon. To further this goal, the Global Task Force drew upon the international and cooperative spirit of the IHRA.

8 The Recommendations are a product of the fruitful exchanges that have come out of this forum. They focus on defining Holocaust distortion, recommending practices for identifying and monitoring distortion and strengthening institutions, and addressing the issue of distortion on social media. I would like to thank all experts and delegates involved for their passion, dedication and expertise, which made this project possible. Our cooperation with UNESCO, with whom this volume is published in partnership, is a further marker of this spirit.

Countless institutions throughout the IHRA’s Member Countries and beyond already work tirelessly to maintain an accurate history of the Holocaust and counter denying and distortive tendencies in their communities. It is with this same tireless commitment that governments, policy- and decision-makers must now approach the problem of Holocaust distortion, engaging all of society in the process. With the commitments outlined in the 2020 IHRA Ministerial Declaration, IHRA members accepted their responsibility as governments to work together to counter Holocaust distortion, underlining the damage it does to fundamental democratic principles. The Recommendations on Recognizing and Countering Distortion provide a useful contribution toward furthering this effort. May these Recommendations find ample distribution and use.

Heiko Maas Federal Minister for Foreign Affairs Germany

9 Foreword

In many ways, attempts to distort the reality of the Holocaust began at the same time that Nazi Germany and its collaborators carried out the genocide of the Jews of Europe and North Africa.

After 1945, Holocaust distortion, as such, was not a subject of much discussion. Rather, at least in recent decades, the related phenomenon of Holocaust denial has warranted considerable attention. The dangers of outright denial of the Holocaust prompted policymakers, scholars, and educators to develop a series of responses that have included legislative efforts, enhanced educational outreach, and supporting and sustaining museums and memorials that inform and keep alive the memory of the Holocaust and related atrocities. These efforts led to a number of significant developments, but challenges remain.

Although denial is still a significant problem, Holocaust distortion has become in many ways a more pernicious threat. After all, Holocaust distortion does not necessarily suggest that the Holocaust did not occur. At the simplest level, distortion misrepresents the Holocaust and its relevance. Yet, distortion is much more complex than this. As outlined in these guidelines, it can appear in a variety of ways, including some that might seem innocent at first glance. Distortion is also a shared international challenge, in that it crosses cultural and national borders. This development is all the more acute due to the rise of post-truth politics and the proliferation of online hate.

It is notoriously difficult to ascertain the motives behind Holocaust distortion. Does distortion appear due to cynical or hateful reasons, or out of ignorance of the facts

10 or sensitivities of the Holocaust? Regardless of the motive, excusing or making allowances for distortion erodes our understanding and respect for the Holocaust, and it is an insult to the memories of Holocaust victims and survivors.

This document represents a major step in shaping international responses to the challenge of Holocaust distortion. Like the work of the International Holocaust Remembrance Alliance (IHRA), these guidelines and the Global Task Force Against Holocaust Distortion are the products of dialogue and cooperation between a diverse and international group of subject matter experts, IHRA partner organizations, and policymakers. The Task Force would not have been possible without the support of the Federal Republic of Germany and its Presidency of the IHRA. The wider fields of Holocaust education, remembrance, and research owe a considerable debt of gratitude to German for its indefatigable support of the continued search for solutions to sustain honest engagement with the Holocaust as an historical subject that continues to resonate in the present day. Finally, these guidelines are the result of work that began generations ago, when the first Holocaust survivors shared their personal experiences with the world. It is our duty to uphold the memory of the victims and survivors. It is for them that we must continue to push back against all attempts to destroy, forget, or distort the past.

Robert Williams, PhD (USA) Juliane Wetzel, PhD (DE)

Current and Forthcoming Chairs IHRA Committee on Antisemitism and Holocaust Denial

11 All IHRA Member Countries have committed themselves to “Lead efforts to promote education, remembrance and research on the Holocaust and the genocide of the Roma to counter the influence of historical distortion, hate speech and incitement to violence and hatred.”

Article 8 of the 2020 IHRA Ministerial Declaration

12 About the IHRA

The events of the Holocaust scarred humanity and today our world continues to confront their legacy. The International Holocaust Remembrance Alliance (IHRA) identifies the most pressing post-Holocaust issues across the globe, casting a spotlight upon them for the benefit of experts and policymakers, and promoting practicable actions to address them.

The IHRA solicits input from a range of disciplines and geographical regions and ensures that its recommendations are backed by research, informed by good practice and communicated effectively.

As part of its strategy, the IHRA experts and political representatives focus their efforts on countering Holocaust distortion and safeguarding the historical record. This is made possible through the development of engaged networks, through the sharing of good practices and by making those practices visible and accessible to decision- makers. In this way, the IHRA ensures sensitive remembrance of history with a view to informing the policymaking of today.

Each country’s relationship with its past is distinct. Nevertheless, many countries face common challenges to efforts to advance Holocaust education, research and remembrance. The IHRA provides a critical forum for its Member Countries to communicate about their specific national experiences and to work together with their counterparts to develop international good practices that are also sensitive to national contexts.

Within the IHRA, more than 300 experts and policymakers from over 40 countries come together to discuss and advance Holocaust-related issues of contemporary political importance. Delegates to the IHRA include many of the world’s leading experts on the Holocaust. Heading each of the IHRA’s national delegations is a senior governmental representative, often from ministries of foreign affairs, ministries of education, or ministries of culture. This cooperation has resulted in a wide range of materials, including practice recommendations, educational materials, working definitions and a charter, and research publications.

13 Introduction

1 Why Should We Counter Holocaust Distortion?

2 What is Holocaust Distortion?

3 Responding to Holocaust Distortion

4 What Can Policymakers Do?

14 1 Why Should We Counter Holocaust Distortion?

Holocaust distortion is a critical threat to Holocaust memory and to fostering a world without genocide.

References to the Holocaust that mischaracterize and distort its history and relevance are an insult to the memories and experiences of victims and survivors. Holocaust distortion erodes our understanding of this history and nourish conspiracy theories, dangerous forms of nationalism, Holocaust denial, and antisemitism.

Through their pledge to uphold the tenets of the Stockholm Declaration, IHRA Member Countries have been at the forefront of developing and supporting research, educational, and commemorative engagement with the subject of the Holocaust. Through these efforts, the IHRA has become increasingly concerned over the ways by which misuse of the Holocaust and its legacy undermine history and threatens social, political, and cultural coexistence.

15 Over the course of the past decade, Holocaust distortion has grown in intensity. It manifests in multiple ways that have a negative influence on efforts to confront hate, and threatens the long-term sustainability of the relevance of the Holocaust as a subject of common reflection. It is therefore essential that IHRA Member Countries raise awareness of distortion and advance better ways to identify and respond to it.

Policymakers and government officials within the IHRA community are essential partners in this endeavor. Understanding Holocaust distortion in all of its concrete, nebulous, and subtle forms can inform and strengthen policymaking on multiple fronts, from the cultural and educational to the legal. Yet this is not just a responsibility for governments and policymakers. There is a pressing need for media, social media, civil society partners as well as law enforcement at the local, national, and international levels to increase their awareness and strengthen their responses to this growing problem.

These guidelines and recommendations reflect the IHRA mission to promote Holocaust education, remembrance and research. In order to fulfill this mission, IHRA Member Countries promote international efforts to combat Holocaust denial and antisemitism.

The IHRA presents these recommendations as a first step toward responding to and strengthening awareness of Holocaust distortion.

16 2 What Is Holocaust Distortion?

Holocaust denial seeks to erase the history of the Holocaust in order to legitimize Nazism and antisemitism. Holocaust distortion is more difficult to understand and identify.

Holocaust distortion acknowledges aspects of the Holocaust as factual. It nevertheless excuses, minimizes, or misrepresents the Holocaust in a variety of ways and through various media.

In its 2013 Working Definition of Holocaust Denial and Distortion, the IHRA initially identified the following forms of Holocaust distortion:

Intentional efforts to excuse or minimize the impact of the Holocaust or its principal elements, including collaborators and allies of Nazi Germany.

For example, to assert that the Holocaust is not relevant to a nation’s history because it was perpetrated by Nazi Germany could be a form of distortion because such an argument a) ignores the roles played by local collaborators or members of the Axis in the crimes of the Holocaust and b) suggests that the legacies of the Holocaust did not influence postwar international norms and institutions.

Gross minimization of the number of victims of the Holocaust in contradiction to reliable sources.

One form of Holocaust distortion is the assertion that the number of victims was several million less than the accepted figure of approximately 6 million Jews murdered by the Nazis and their accomplices. Note: Scholarly estimates have ranged from 5.3-6.2 million victims, with 5.7 million as an accepted figure by most experts in the field.

17 Attempts to blame the Jews for causing their own genocide.

Forms of blaming the victim include claiming that Jewish reactions to the rise of Nazism or that participation of individual Jews in communist movements justified Nazi persecution of Jews. Such forms of distortion are historically inaccurate, lessen the burden of guilt on perpetrators, and suggest that the Holocaust was somehow justifiable.

Statements that cast the Holocaust as a positive historical event... [suggesting that it] did not go far enough in accomplishing its goal of “the Final Solution of the Jewish Question.”

For example, the assertion that the Nazis were justified in their drive to exterminate the Jewish people is not just a historically spurious claim; it is also a bald-faced form of antisemitism that seeks to justify continued atrocities against Jews.

Attempts to blur the responsibility for Nazi Germany’s establishment of concentration and death camps by blaming other nations or ethnic groups.

This form of distortion shifts sole blame for the Holocaust onto local collaborators while ignoring Nazi Germany’s responsibility for the genocide.

Since the adoption of IHRA’s Working Definition of Holocaust Denial and Distortion, additional forms have arisen, including (but not limited to) the following:

Accusing Jews of “using” the Holocaust for some manner of gain.

Claims that the Jewish people “use” the Holocaust for the purposes of financial gain or to justify the establishment of the state of Israel are antisemitic conspiracies, and suggest that the Jewish people have used this history in order to secure particular or nebulous ends.

18 Use of the term “Holocaust” to reference events or concepts that are not related in any meaningful way to the genocide of European and North African Jewry by Nazi Germany and its accomplices between 1941 and 1945.

Because of the paradigmatic status of the Holocaust as a genocide and its symbolic status as an ultimate evil, it has become somewhat common to identify troublesome comparisons between the Holocaust and unrelated contemporary events, individuals, and other genocides or mass atrocities. Irresponsible comparisons can distort understanding of contemporary phenomena and of the Holocaust. In short, drawing inappropriate comparisons degrades understanding of the implications and significance of the Holocaust.

State-sponsored manipulation of Holocaust history in order to sow political discord within or outside a nation’s borders.

State-sponsored pronouncements against other countries’ actions during the course of the Holocaust were common to Cold War propaganda, and they have continued through the present day. Such pronouncements instill defensive responses and threaten honest engagement with this history.

Trivializing or honoring the historical legacies of persons or organizations that were complicit in the crimes of the Holocaust.

Attempts by states and/or local municipalities to generate particular forms of national identities are often accompanied by efforts to rehabilitate the reputations of persons, organizations, or ideologies associated with Holocaust-era crimes. Such actions not only distort history, they can also be seen as acts that glorify collaboration with the Nazis or as an effort to legitimize Nazi ideology.

The use of imagery and language associated with the Holocaust for political, ideological, or commercial purposes unrelated to this history in online and offline forums.

Increasingly, language and images associated with Nazism are used in a variety of contexts, particularly online, in an attempt to cast negative aspersions or to attract public attention. By overusing the word “Holocaust” or associated terms it leads to the point that they lose significance and meaning.

19 Holocaust distortion can be influenced by a country’s experiences during and after World War II: Was it a perpetrator state? Was it occupied by the Nazis or a member of the Axis Alliance? Was it neutral, or one of the Allies? What were its experiences during the Cold War and what are its present political conditions?

In some countries, the history of the Holocaust can be manipulated to suit narrow ideological and political ends. History museums may even engage unwittingly in acts of distortion as purveyors of a national narrative. For example, some institutions may draw an equivalence between Nazi crimes and those crimes of the Stalinist regime in ways that de-emphasize the Holocaust. Sometimes, these efforts promote narratives of national suffering or the reputations of national heroes, some of whom might have been participant in the persecution of Jews.

Holocaust distortion may also arise out of a desire to obscure the roles played by religious institutions, political parties, educational institutions, and prominent figures in the arts and sciences in Holocaust-era crimes.

Holocaust distortion may also result from comparing atrocity crimes without careful contextualization. While a comparative approach may be fruitful, unreflective equations of the Holocaust with other atrocity crimes may hide certain aspects of the history; further its political instrumentalization; or imply links between genocides that diminish or trivialize the Holocaust.1

Finally, some Holocaust distortion results from lack of awareness. Declines in historical knowledge or a lack of opportunity to engage deeply with the subject can lead to ignorance, misrepresentations, a lack of sensitivity, and uninformed remarks and/or comparisons to the Holocaust.

Regardless of the motivations, all forms of Holocaust distortion risk inviting or building legitimacy for more dangerous forms of hate: Distortion can undermine the historical and contemporary importance of this unprecedented tragedy and its lessons for today.

1 See materials of the IHRA Committee on the Holocaust, Genocide, and Crimes Against Humanity: https://holocaustremembrance.com/holocaust-genocide-and- crimes-against-humanity

20 3 Responding to Holocaust Distortion

IHRA Member Countries pledge to adhere to the tenets of the Stockholm Declaration of 2000. They affirm the need to “uphold the terrible truth of the Holocaust” and ensure that their citizens “can understand the causes of the Holocaust and reflect upon its consequences.”

Countering Holocaust distortion is essential to this goal and the IHRA has dedicated itself to identifying resources and mechanisms that can aid in minimizing its influence. Some examples of such resources can be found in the appendix to this publication.

Recent IHRA documents on distortion include:

IHRA Working Definition of Holocaust Denial and Distortion (2013): https://www.holocaustremembrance.com/resources/working-definitions-charters/ working-definition-holocaust-denial-and-distortion

Committee on Antisemitism and Holocaust Denial Paper on Holocaust Denial and Distortion (2019): https://www.holocaustremembrance.com/resources/working- definitions-charters/working-definition-holocaust-denial-and-distortion

IHRA Statement on Rehabilitation (2020): https://www.holocaustremembrance.com/statements/ihra-statement-rehabilitation

IHRA Ministerial Declaration (2020): https://www.holocaustremembrance.com/about-us/ihra-2020-ministerial-declaration

21 Whether countering Holocaust distortion online, in print or broadcast media, or face-to-face, policymakers and decision makers must be girded with facts: about the Holocaust, about the common arguments of those who actively distort the Holocaust, and about emerging trends. They need enhanced resources and focused materials focusing on identifying and responding to Holocaust distortion, including whether and how to engage with distorters without appearing to legitimize their positions.

It will be necessary to work with partners to develop such new approaches. The IHRA will contribute concrete scenarios explaining manifestations of Holocaust distortion, such as the following:

Scenario 1 An individual, organization, or public campaign draws comparisons between a contemporary event and the Holocaust.

Response: The Holocaust was a singular crime of the twentieth century. While it is sometimes used as a point of reference to other phenomena, inappropriate comparisons ultimately dilute understanding about the specificity of the Holocaust. Furthermore, overuse of the term “Holocaust” can erode respect for the seriousness of the crimes it represents. Responding to such statements, either through fact- based counter-narratives or through educational campaigns, is necessary. One could develop such responses in cooperation with civil society partners, scholars, and Holocaust-survivor organizations.

22 Scenario 2 An individual or organization claims that a focus on the Holocaust diminishes consideration and respect for other genocides or crimes against humanity.

Response: While most experts agree that use of the term “Holocaust” (or “Shoah”) relates specifically to the mass murder of approximately 5.7 million European and North African Jews by the Nazis and their accomplices, there are no serious arguments that scholars, educators, or the broader public must focus their interest only on the Holocaust and not on other atrocities. Indeed, there were a great many other Nazi-led atrocities that accompanied the Holocaust, such as the genocide of the Roma, as well as a host of genocides, mass atrocities, and crimes against humanity that preceded and followed the Holocaust era. It is necessary to maintain the specificity of the Holocaust as the genocide of the Jews in order to ensure that we respect the specific nature of that crime and honor the memory of the victims. So, too, is it necessary to understand the specific features of other genocides and atrocities in order to build and maintain a respectful and honest understanding of those crimes. To address the nuances involved, policymakers should encourage dialogue with local or international scholars of the Holocaust and/or Holocaust- focused institutions, such as an authentic site, a memorial, or a museum.

23 Scenario 3 National Holocaust curricula or commemoration ceremonies exaggerate or focus exclusively on the actions of rescuers.

Response: While rescuers should be honored, an overemphasis on rescue might suggest that it was the norm during the Holocaust, when it was in fact rare. Moreover, too great a focus on rescue could limit discussions of other aspects of the Holocaust, such as the roles played by perpetrators, collaborators, bystanders, and of course the experiences of victims, inviting particular forms of distortion to emerge. Engagement with Holocaust educators and with institutions that address the subject of the Holocaust in ways that account for a range of cultural, national, and international perspectives can lead to more balanced and nuanced presentations of this complex history.

24 4 What Can Policymakers Do?

These guidelines seek to support policymakers, other government officials, and civil society in addressing Holocaust distortion in four primary arenas:

● Identifying and tracking the phenomenon;

● Training of policymakers in ministries of culture, education, interior, justice and foreign affairs, as well as police, the judiciary, elected officials and administrators on the national, regional, and communal levels;

● Educational work in institutions whose work touches upon the history and relevance of the Holocaust (i.e., museums, memorials, and authentic sites of persecution);

● And ways to counter the spread of distortion online.

These guidelines consist of four sections, each providing insight and recommendations. The final section lists additional resources.

The recommendations for these four areas have many elements in common: They depend on sustained funding, transparency, and – when relevant – international cooperation. They depend on training of professionals, and development of new methods to track and monitor distortion. They require a broad coalition of experts and share the goal of increasing knowledge about the Holocaust on all levels of society. This requires not just education, but also sustained efforts to provide access to museums, memorials, commemorations, and other cultural touchstones that reinforce Holocaust memory. It also requires more resources and opportunities for Holocaust research at universities and other academic institutions, as well as regular, unconditional governmental engagement with internationally recognized experts on identifying and responding to Holocaust distortion.

25 These guidelines will assist policymakers in recognizing and curbing distortion of the Holocaust. They will also strengthen related initiatives, such as national strategies against antisemitism, educational policies against hate speech, and the work of memorials and museums.

Recognizing that ease of implementation will be influenced by national and regional contexts, IHRA Member Countries should share good practices in this and other matters.

Build Professional Capacities

Foster Cooperation and Exchange

Develop Tools and Guidelines

Secure Sustainable Funding

26 SECTION OVERVIEW

I II

Identifying and Training Programs Monitoring about Holocaust Holocaust Distortion Distortion

In order to address the scope, depth, In order to increase awareness and and the problems associated with build capacities about Holocaust Holocaust distortion, governments distortion, governments in cooperation and civil society must ensure the with civil society should develop and sustained identification, monitoring, support sustainable training programs and tracking of its manifestations. for a variety of audiences.

III IV

Strengthening Social Media Memorials and Strategies Museums There is a need for Holocaust-focused institutions to make use of social media in These institutions are increasingly ways that will strengthen their audiences‘ important bulwarks against awareness of Holocaust distortion. An Holocaust distortion. They international exchange of good practices offer manifold opportunities for is needed, as is more support for the safeguarding the historical record, social media output of these institutions. and need help facing the challenges posed by those who distort the truth.

27 I

Identifying and Monitoring Holocaust Distortion

This section raises the issue of monitoring the scope and depth of Holocaust distortion as an essential step in addressing this problem. In order to understand the problems posed by distortion, governments and civil society must enhance identification, monitoring, and tracking. Experts agree that Holocaust distortion appears in a variety of forms and can influence other forms of hate. Monitors of hate speech or hate crimes regularly encounter distortion, but current statistical indicators, including those focused on antisemitism, insufficiently address it. To understand the scale and impact of distortion we need tools for identifying and tracking this phenomenon.

Tracking strategies should complement and conform to internationally agreed-upon standards and good practices.

It is recommended that policymakers:

1 Develop monitoring guidelines.

In cooperation with significant governmental, intergovernmental, and civil society stakeholders, policymakers should work toward developing guidelines for groups that monitor hate speech and hate crime so they can deal adequately with distortion in an effective way that also respects universal standards for human rights, including freedom of expression.

2 Encourage the use of transparent methodologies for tracking and monitoring.

Monitoring bodies and digital platforms should utilize transparent approaches that facilitate the sharing of information to enhance accountability, while respecting the right to privacy. This should include the reporting of outcomes through formal mechanisms and international frameworks, or in the case of digital platforms, regular transparency reporting.

3 Strengthen domestic and international cooperation.

Recognizing that the problem requires global solutions, policymakers and civil society actors must engage in cooperative international multi-stakeholder dialogue through multilateral organizations, such as the OSCE, whenever possible, in order to develop common strategies.

29 1 Develop Tools and Guidelines Guidelines for monitoring: Recognizing distortion

International guidelines will enable governments, international organizations, civil society, the media, fact-checkers and online platforms to identify and track Holocaust distortion.

Distortion is usually not criminalized. Judicial actors should know, a fortiori, how to distinguish between legal and illegal speech, following international standards for freedom of expression.2

IHRA resources can help build understanding of the problem, but there is still a need for international guidelines that capture the various manifestations of Holocaust distortion. Policymakers and their relevant partners should engage in sustained multi-stakeholder dialogue aimed at developing standards by which they can act to minimize and counter distortion.

2 Set out in the International Covenant on Civil and Political Rights (Articles 19 and 20) and the Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

30 Partners In and Users of Monitoring Guidelines

International bodies, such as the OSCE/ ODIHR, the Fundamental Rights Agency or the Council of Europe, which are charged with monitoring hate crime/ hate speech manifestations, or UNESCO which has a mandate on freedom of expression and countering hate speech.

National agencies that are responsible for monitoring and reporting hate crime/ hate speech

NGOs and civil society organizations that gather information about hate crime/ hate speech and other forms of discrimination

31 2 Build Professional Capacities Transparent methodologies: Focusing in on distortion

Beyond the need for easy-to-use identification tools, there is a need for new, transparent methodologies for tracking distortion across communities, countries, and international borders, as well as across communication platforms.

Technological tools alone remain insufficient; the subtleties involved in identifying Holocaust distortion and determining whether action should be taken to remove or de-amplify it, often require human intervention, and policies and approaches may differ from one community to the next. Therefore, there is a need for social media companies to enhance their engagement with governments and subject matter experts to better account for local, regional, national, and international differences in the ways that Holocaust distortion appears.

32 3 Foster Cooperation and Exchange Domestic and international cooperation: The borderless approach

The tracking of Holocaust distortion should be a permanent part of efforts to enhance knowledge of the Holocaust and counter antisemitism. Presently, no international or national body tracks distortion in a systematic manner, although some do monitor related phenomena such as Holocaust denial, antisemitism, and hate speech. In part, this lack may be ascribed to the challenges of recognizing Holocaust distortion and about the dangers associated with it. One solution is to share good practices with international and national bodies that already monitor forms of antisemitism, and developing and applying consistent tools for monitoring distortion.

33 II

Training to Tackle Distortion

This section addresses the challenge of raising awareness about Holocaust distortion among policymakers and other professionals. Governments at the local, national, and regional levels should ensure support for training programs on recognizing and countering distortion. Wherever possible, they should cooperate with international bodies.

34 Due to the many ways Holocaust distortion can appear, government and police professionals need the tools and capacities to recognize and respond to it. Governments and major international organizations – in cooperation with Holocaust-focused institutions and civil society partners – should develop sustainable training programs for a variety of audiences.

There is a sense of urgency: Recent surveys indicate significant declines in awareness of the Holocaust and of history in general. This sometimes shocking deficit informs the rise of distortion of these crimes, a phenomenon closely tied to antisemitism.

It is recommended that policymakers:

1 Develop a sustainable, funded framework.

Governments should provide consistent funding for training on how to recognize and respond to forms of distortion. Policymakers should advocate for financial support for organizations with recognized expertise in hate speech, antisemitism, and Holocaust-related issues, including civil society, media, academic, and international organizations.

2 Develop targeted and sustainable training programs.

Local and international experts should collaborate with the IHRA and relevant international and national organizations to design and lead sustainable training programs for target audiences (including opinion leaders, media representatives, internet companies, and others) and / or use existing materials either as focused discussions or as full-fledged training programs.

3 Encourage participation in training.

IHRA Member Countries should identify policy- and decision-makers whose work would benefit from training programs focused on recognizing and responding to Holocaust distortion, and then encourage them to participate.

35 Failing Knowledge, Fading Interest: Holocaust awareness in IHRA Member Countries

A survey of A significant number... Millennials and cannot name one concentration camp or ghetto and believe that two Gen Z in all 50 US million or fewer Jews were killed. states revealed... Approximately half (49 percent)... September 2020: A survey of Millennials and Gen Z in said they had seen Holocaust all 50 US states by the Conference on Jewish Material denial or distortion posts online. Claims Against Germany (Claims Conference)

A “concerning percentage”... believe that Jews caused the Holocaust.

The Claims Conference Holocaust Knowledge and Awareness Survey of Austrian citizens (Feb–March 2019) found... 56% over all, and 58% of Millennials and Gen Z, did not know that six million Jews were killed during the Holocaust.

The frequency of hearing or seeing the statement...

“The Holocaust is was 5% for “all the time”, a myth or has been 19% for “frequently” and exaggerated” 38% for “occasionally”

According to the survey by the EU’s Fundamental Rights Agency on experiences and perceptions of antisemitism, December 2018 Failing Knowledge, Fading Interest: Holocaust awareness in IHRA Member Countries

In Europe poll showed that:

One third of European respondents... said they knew little or nothing about the Holocaust.

Four out of 10 Austrian adults... said they knew “just a little.”

20% of French respondents aged 18–34 and 12% of Austrians in that age group... said they’d never heard of the Holocaust. According to the CNN – Anti-Semitism in Europe Poll (carried out by ComRes) September 2018

A survey of Only 56% of Millennials and Gen Z French citizens knew about the Vel d’Hiv’ Roundup revealed that... of Jews in 1942, compared to 74% of French respondents overall.

The Claims Conference Holocaust Awareness Survey of French citizens Only 2% of all respondents knew November 2019: about the Drancy internment camp, located in a suburb of Paris.

An Infratest survey of Germans for the Deutsche Welle news agency (November 2019) suggested that... The number of those who think it’s time to put the Nazi past behind them is slowly climbing.

While 37% overall agreed, 56% of those with at most 8 to 10 years of schooling wanted “to close this chapter.” The survey also found that 72% of supporters of the right-populist party Alternative for Germany agreed that Germans should not spend so much time dealing with the Nazi period. 1 Secure Sustainable Funding Sustainable funding for training: Staying ahead of the game

Governments should provide Holocaust-focused organizations with sustainable and consistent financial support so that they can shape, develop, and lead training programs for policymakers, the judiciary, prosecution, police, journalists, clergy and other opinion makers. The beneficiaries of such support might include academic, educational, and resource institutions with recognized expertise in hate speech, antisemitism, and Holocaust-related issues, and ones that cooperate with the IHRA and relevant international organizations.

Consistent, dependable funding can ensure that these institutions can commit the time and personnel necessary to developing training programs that are capable of adjusting to a constantly evolving challenge. Distortion is a moving target.

Whether it is at the secondary school level, in universities, or in other learning environments, Holocaust education is not a panacea by itself. Distortion continues to proliferate, particularly during times of social, political, or economic upheaval, and conspiracy myths – including the distortion of history – have enormous pull.

Yet it is clear that improved educational approaches, including media and information literacy, can play a major role in holding Holocaust distortion in check. To that end, funding must be secure and unconditional.

38 Goals of Training

● Engage with and learn from academic and educational institutions with recognized expertise in hate speech, antisemitism, and Holocaust- related issues

● Ensure that candidates for training reflect the diversity of the local society, the visiting public and any additional desired audience

● Develop ways to enhance knowledge of and critical thinking about the Holocaust with a focus on distortion and its link to antisemitism

● Help policymakers and others to develop historical consciousness by studying interpretations and remembrance of the Holocaust, and participating in national and local traditions of commemoration and remembrance

39 2 Develop Tools and Guidelines What to teach: The ABCs of distortion

Curricula on Holocaust distortion for professional audiences should cover many facets and be accessible to a variety of participants, including but not limited to the police, the judiciary, civil servants, or other groups of decision makers.

Local and international experts should jointly design training programs and / or use existing materials in focused discussions on Holocaust distortion, depending on factors such as local context, priorities, and target groups.

Education about Holocaust distortion will vary depending on national contexts, which will inform decisions regarding which topics are to be explored more or less deeply. Educational programs should reflect the diversity of pluralistic societies.Although courses may require specific features to suit the needs of particular audiences, there may also be a need to anticipate the perspectives and concerns of a broader public, as well as local communities in prospective training courses. Such training must make use of the most recent data gained through research and monitoring of distortion.

The questions listed here represent a set of core learning goals and content. Concerns will change over time. Given these important caveats, training programs should address the questions of why Holocaust distortion is a threat, what forms it takes, and how it relates to other phenomena. They should take a multi-pronged approach, covering trends in media and online communities, the dynamics of Holocaust distortion, relevant local and international standards, as well as regulations or laws concerning freedoms of expression.

40 Key Questions to Address in Training

● Why is recognizing and countering Holocaust distortion relevant? ● What are key forms and manifestations of Holocaust distortion? ● What is the difference between Holocaust denial and distortion? ● What are international, national, and local contexts? ● How does Holocaust distortion relate to phenomena including general historical misrepresentations, antisemitism, hate speech/ hate crimes, or freedom of speech? ● If national histories distort memory or understanding of the Holocaust, what is the individual’s responsibility to rectify this problem? ● What are effective ways to prevent and counter Holocaust distortion in the target group’s respective field of work, while respecting freedom of expression?

Possible formats range from focused discussions to full-fledged workshops. In certain contexts, a module on Holocaust distortion might be appropriate within a broader program on hate speech and freedoms of expression, human rights, or more specifically on antisemitism or Holocaust issues.

In other contexts where the problem may be particularly potent, a full workshop could be offered for a target audience such as judicial operators or the media on, for example, respecting international standards on freedom of expression while countering the denial of atrocity crimes.

41 Key Topics for Workshops

Historical literacy Including basic historical knowledge of the Holocaust, notions as to how it has been remembered and researched, and an understanding of persistent challenges in these fields.

Forms of Holocaust distortion Including identifying Holocaust distortion, rhetorical strategies, related political and ideological motives and their relationship to expressions of hate, and the harms that this causes to individuals, communities, and societies as a whole.

Media and information literacy Including demonstrating and identifying trends in Holocaust distortion in traditional and online media, as well as the critical thinking skills needed to recognize and counter it.

Regulations and laws Including local, regional, and national regulations on hate speech, Holocaust denial, and Holocaust distortion; how these mechanisms work; whether they protect and promote freedom of expression in line with international standards; and who is responsible for enforcing these regulations/laws.

General topics Including intolerance and discrimination, human rights education, countering violent extremism, Holocaust-related topics and antisemitism.

42 3 Build Professional Capacities Whom to reach: Opinion leaders and mentors

Training programs will help diverse audiences to recognize the seriousness of the phenomenon and build capacity and skills to effectively address it.

Training programs should be tailored to target audiences of various cultural backgrounds and professions, including policy and decision makers (ministry officials, local authorities; media; lawmakers and judiciary; police; staff of social media and search companies). Training in recognizing and countering Holocaust distortion might inspire additional policy changes, including in arenas that influence general education. These programs might also influence other training efforts, such as those responsible for curriculum and textbook development in colleges, universities, or schools.

43 Tailored programs can help...

Policymakers ● to recognize the seriousness of the phenomenon ● to identify distortion and inaccuracy when the Holocaust is used as a rhetorical device in the service of social, political and ideological agendas ● to incorporate the subject of Holocaust distortion into governmental and intergovernmental action plans against antisemitism and related forms of bias

Educational stakeholders ● to ensure that educational policies and programs recognize and address Holocaust distortion and media and information literacy

Law enforcement and judiciary ● to build skills for effective implementation of existing regulations and laws ● to recognize the grey zones and borderlines of distortion and its mainly non- criminal nature, to ensure that efforts to counter Holocaust distortion to not unduly infringe on the right to freedom of expression

Journalists, media-content creators and fact-checkers ● to build an understanding of the need to publicly debunk and reject Holocaust distortion

Technology companies ● to recognize Holocaust distortion on their platforms and best practices for responding to in a transparent way in line with international human rights standards

44 45 III

Strengthening Institutions that Address the Holocaust: Safeguarding the Historical Record

This section looks at the challenges that memorials, authentic sites, museums, archives and other sites that deal with national or local history face when confronted with Holocaust distortion. Here, too, international cooperation can have a significant positive impact.

46 More than 75 years after the end of World War II, institutions that teach about and commemorate the Holocaust and its aftermath are increasingly important bulwarks against distortion. Documents, photographs, artifacts, access to authentic sites, and recorded testimony of survivors and other witnesses are key to this task, especially as we move to an era without eyewitnesses among us.

Such institutions are often the point of broadest direct contact with the public (from school groups to scholars, from tourists to individual visitors), and thus offer manifold and unique opportunities for safeguarding the record and countering Holocaust distortion.

The passing of the generation of Holocaust survivors will require these institutions to keep alive the memory and understanding of the Holocaust. Yet, at this moment, these institutions face many new and unique challenges. In some countries, for example, right-wing extremists and figures from right-populist movements target such institutions; they challenge historical facts and interrupt guided tours. Some institutions exist within societies and cultures that tolerate distortion of history, that juggle competing historical memories (e.g. Soviet versus Nazi crimes), or celebrate as resisters those whom others consider war criminals; some face a loss of public financial support; and they often are subjected to politicization of history (including in commemoration ceremonies) for partisan and other ideological ends.

Equipped with the support that allows for updated exhibitions and proper training, professionals in authentic sites and institutions that address the subject of the Holocaust – including management and guides – will be better able to respond to the wide array of challenges that occur when conveying this history to diverse and growing audiences.

Governmental funding for such institutions must be secure. This support should be unconditional, in keeping with IHRA International Memorial Museums Charter, according to which “…states, governments, and local communities bear a great responsibility to memorial museums and should safeguard their collections and assure them the highest degree of independence from political directives”; that is, local or government authorities should not pressure institutions to present history in order to suit particular political or ideological perspectives. Greater cooperation is needed between governments and institutions to enhance visitor programming; to prepare professionals to respond to distortion; and to ensure that exhibitions do

47 not inadvertently distort history themselves. As the International Memorial Museums Charter notes, memorial museums as contemporary history museums are always engaged in criticism of their own history.

In keeping with this commitment, efforts should be made to avoid presenting the Holocaust together with crimes perpetuated by occupiers other than the Nazis and their accomplices in the same exhibition, whether temporary or permanent. Where this is not currently possible, particular care should be directed at avoiding the depiction of the Holocaust as a minor event in comparison to other crimes.

It is recommended that policymakers:

1 Ensure sustainable, unconditional support

Stable financial, material, and technical assistance enables institutions to create new exhibits, update existing ones, and fight distortion, while guarding independence from political pressure.

2 Develop tools and guidelines

Encourage governments to develop a sustainable framework to ensure that school curricula include student visits (both in person and online) to Holocaust-related museums and sites, with preparation beforehand and debriefing afterward.

3 Support professional development of staff

Ensure that governmentally funded Holocaust institutions support professional development and ensure that exhibitions do not unintentionally mischaracterize aspects of this history. Staff should be equipped to address diverse audiences.

4 Strengthen international cooperation and exchange

Engage with major oversight bodies (e.g., UNESCO and/or national cultural ministries) major professional organizations (e.g., ICOM) and international networks of institutions that address the subject of the Holocaust so that they can support efforts to counter distortion of the Holocaust in concert with IHRA experts (including the possibility of designing special exhibitions on this subject).

48 1 Secure Sustainable Funding Ensure sustainable support: Backing for institutions that defend history

Institutions that address the subject of the Holocaust – such as museums, memorials, authentic sites and others that play an active role in education on this subject – need additional funds to combat growing ignorance about this history and to respond to an increase in antisemitic conspiracy theories linked to current events (currently related to the origin and spread of the Coronavirus).

Governments should provide regular and stable funding and support (including moral, material and technical assistance) to such institutions. States or local governments should reinforce specific initiatives aimed at countering distortion; should consult with international experts to check facts in their own historical narrative on the Holocaust; and should commit to publicly standing up for institutions under attack by intentional distorters. As noted in the IHRA International Memorial Museums charter, it is important that support be unconditional.

This assistance can ensure that exhibitions, publications, and educational opportunities are dynamic and speak to a wide range of audiences. In addition, governments must ensure that institutions that address the Holocaust have ease of access and a low financial burden when utilizing materials (documentary, filmic, photographic, etc.) held by government-sponsored or state-run archives.

49 Institutions need sustained funding for...

● Professional development and continuing education for staff, focusing on recognizing and responding to distortion ● Research on distortion ● Curating exhibits that help raise awareness ● Ensuring school visits, with adequate preparation and debriefing ● Development of an early warning system for emerging trends in deliberate distortion ● Maintaining a vigilant online presence, monitoring website feedback

50 2 Develop Tools and Guidelines Finding frameworks for group visits and encounter programs: Preparation and debriefing

Policymakers should encourage governments to develop a sustainable framework to ensure that school curricula include visits to an authentic site, memorial, or museum for students of an appropriate age, with preparation beforehand and debriefing afterward. Participants should learn to recognize forms of Holocaust distortion. Educational visits should be the result of cooperation between the Holocaust-related institution and the educational authority.

Because they reach a wide range of audiences, Holocaust memorials, museums and authentic sites have dedicated themselves to presenting history in a clear and direct manner. This requires that they ensure that visits by educational groups incorporate appropriate preparation and follow up, in both in-person and online forums for engagement.

To ensure that the subject of distortion is included, institutions that address the Holocaust could – as capacities allow – work with educational authorities to prepare visiting groups with facts, historical context, and accessible narratives. Funding should be earmarked for this mandate.

51 3 Build Professional Capacities Professional development: Providing training for guides

Guides encounter Holocaust distortion on a regular basis. They must have opportunities to update their knowledge of Holocaust history and their skills in responding to distortion. They also need the support of governments and policymakers for their work, which can lead to greater awareness and ultimately to individuals or governments understanding how to identify, and when it is appropriate to respond to, acts of Holocaust distortion.

Institutions that address the subject of the Holocaust with authority reach many audiences. They can advise on or engage in the training of policymakers and be key partners in countering Holocaust distortion. Stronger cooperation with educational authorities will enhance training and learning at these institutions, while at the same time ensuring that these institutions and their government funders do not (intentionally or unintentionally) mischaracterize aspects of Holocaust history.

Policymakers should provide support and a framework for the education of museum guides to understand Holocaust history and to recognize/respond to forms of distortion.

Efforts should be made to hire staff from backgrounds that reflect those of an institution’s environment and audience. Doing so can inform better responses to distortion and encourage a greater variety of visitors.

52 4 Foster Cooperation and Exchange Strengthen international cooperation: Distortion knows no boundaries

International cooperation between institutions that address the subject of the Holocaust can boost efforts to counter distortion through the exchange of good practices in response to:

● audience misperceptions about the Holocaust; ● pressure to conform to politically acceptable but historically inaccurate narratives; or ● distortion that surges during times of political or social instability

Policymakers should engage with relevant institutions and international networks that address the Holocaust, antisemitism, and hate speech so that they can support efforts to counter distortion through multi-stakeholder cooperation in concert with IHRA experts. Outcomes of such engagement could lead to the development of focused presentations on the subject, greater dialogue on the challenges posed by distortion to the health of these institutions, and to new approaches to countering distortion of history and other forms of disinformation.

53 IV

Recognizing and Responding to Distortion Online

Online media has the potential to raise awareness about the Holocaust, while at the same time it has the potential to serve as one of the principal carriers of Holocaust distortion and other misinformation.

54 Holocaust distortion is a significant problem on social media. Distortive comments and campaigns have a deleterious impact on individuals and on institutions that address the subject of the Holocaust. Several civil society initiatives have focused on holding social media companies responsible for the content that appears on their platforms. These are important and necessary efforts. In addition, policymakers and Holocaust-focused institutions must become more aware of the challenges of online distortion and work together to push back against it.

To a certain extent, aspects of Holocaust distortion on social media resemble the phenomenon in other arenas: Both online and off, words or themes associated with the Holocaust are subject to misrepresentation, misinterpretation, or abuse, and the understanding of Holocaust content is influenced by a wide range of cultural and regional factors. But the online space has its own challenges.

Each online platform has particular features — including userbase, terms of service and community guidelines, and technological design—that affect the tenor and reach of content that distorts Holocaust history. Social media also allows such content to reach many more audiences than traditional media. Some of these audiences have an ingrained bias against Holocaust-related content, while others may not understand the relevance and importance of the Holocaust at all. Importantly, many of these consumers use social media to elevate their misinterpretations of the Holocaust in ways that attract new audiences and thus reproduce the distortion of this critical subject.

Challenges of Online Distortion

● Some platforms are conducive to spreading falsehoods ● Keywords attract clicks: Auschwitz, Holocaust, etc. ● Moderators must identify the difference between intentional distortion and distortion resulting from ignorance to respond adequately ● Responding to some distorters only encourages them ● Some distorters deliberately misuse content, including content from respected organizations, such as Holocaust museums and memorials ● Current events may prompt surges in online distortion

55 There are many potential responses. First and foremost, there is a need for social media, search and social messaging companies to monitor and, when necessary, take action on a wide variety of manifestations of hate speech and other content that may cause harm, including Holocaust denial and dangerous distortion. Actions may include promoting true and reliable content; adding fact-check labels; downranking, de-amplifying, placing under warning label or removing harmful content; disabling advertising revenue; and/or deactivating accounts of actors producing and spread such content, including through inauthentic coordinated behavior. All actions by companies should respect international standards on human rights—including the rights to freedom of expression and privacy—and provide transparency and possibility for redress.

Governments should ensure that Holocaust institutions have the capacity to develop material designed to teach online audiences how to recognize distortion. Moreover, these institutions should work with policymakers and social media companies to build understanding of the threat of Holocaust distortion and recognition of the patterns, trends, and forms that it can take. Social media companies and Holocaust- focused institutions must become partners in the effort to counter distortion. Doing so will not only lead to proactive approaches; it will also allow each to engage in developing good practice solutions.

Strategies should include providing fact-checking resources for online audiences; deciding when to respond to, hide, block or ignore distortive comments when they engage with institutions’ social media or online programs; engaging with digital communities in joint responses; and encouraging social media platforms to identify and address forms of distortion. There is also a need for such institutions to engage with their audiences on topics related to media and information literacy and the identification of misinformation and disinformation, including distortion. Holocaust-focused institutions might also work with social media platforms to identify patterns and trends that indicate the interests or misunderstandings of particular audiences; cooperatively develop materials to help combat malicious forms of Holocaust distortion; or create standards for the training of social media monitoring bodies, including internet companies, governments, and civil society organizations. Cooperation will also enable social media companies and Holocaust institutions to identify strategies that work and how best to communicate with audiences at risk of misunderstanding the Holocaust and/or engaging in hate speech.

56 It is recommended that policymakers:

Cooperation between Holocaust-focused institutions 1 and social media companies

Social media companies hold the data needed to understand the prevalence, spread and impact of Holocaust distortion on their platforms, which is essential for understanding the phenomenon and ways to counter it. In order to most effectively combat Holocaust distortion online, social media companies should cooperate with Holocaust-focused institutions and other organizations that have expertise and content. Building cooperation between the two is an essential first step.

2 Social media accounts of Holocaust- focused institutions

Memorials, museums and other institutions working in the fields of Holocaust education and commemoration require sustainable and vigorous support for the development of proactive tools and accessible educational resources that will be resistant to abuse by distorters in the fast-moving world of social media.

3 Cooperation with monitoring organizations

Organizations that monitor online distortion, disinformation and hate speech, and institutions that face challenges from Holocaust distorters, should be encouraged to share data and good practices in order to improve understanding of the depth and sources of the problem.

57 V

Additional Resources

IHRA Member Countries have developed valuable materials on topics connected to training and learning about Holocaust distortion that can be used for raising awareness and for capacity-building training programs. Additionally, certain Permanent International Partners of the IHRA offer some guidance that can complement training programs on distortion.

58 Please note that this list is not exhaustive. For a fuller list of available resources, please consult the individual country pages of the IHRA, as at https:// holocaustremembrance.com/about-us/countries-membership, as well as the IHRA Overview of Holocaust-related organizations, at https://www.holocaustremembrance. com/resources/overview-holocaust-related-organizations

IHRA Recommendations for Teaching and Learning about the Holocaust http://holocaustremembrance.com/resources/educational-materials

OSCE-ODIHR/ UNESCO Addressing Anti-Semitism Through Education: Guidelines for Policymakers https://www.osce.org/files/f/documents/8/0/383089_0.pdf

OSCE-ODIHR Addressing Anti-Semitism Through Education: Teaching Aids https://www.osce.org/odihr/441146?page=1.

UNESCO Education about the Holocaust and Preventing Genocide. Guidelines for Policymakers https://unesdoc.unesco.org/ark:/48223/pf0000248071

UNESCO Recommendation concerning the Protection and Promotion of Museums and Collections http://www.unesco.org/new/en/culture/themes/museums/recommendation-on-the- protection-and-promotion-of-museums-and-collections/

UNESCO Recommendation Concerning the Preservation of, and Access to, Documentary Heritage Including in Digital Form https://en.unesco.org/memoryoftheworld/recommendation2015

UNESCO Countering Online Hate Speech https://unesdoc.unesco.org/ark:/48223/pf0000233231

59 Fact Checking Resources

The United States Holocaust Memorial Museum, Washington, DC https://www.ushmm.org/learn

Yad Vashem, The World Holocaust Remembrance Center, Jerusalem, Israel https://www.yadvashem.org/holocaust/about.html

Auschwitz Memorial and Museum at the former German Nazi concentration and extermination camp http://auschwitz.org/en/history/

60 IHRA Charters and Working Definitions

Stockholm Declaration https://www.holocaustremembrance.com/about-us/stockholm-declaration

2020 IHRA Ministerial Declaration https://www.holocaustremembrance.com/news-archive/ihra-2020-ministerial- declaration

Working Definition of Holocaust Denial and Distortion https://holocaustremembrance.com/resources/working-definitions-charters/working- definition-holocaust-denial-and-distortion

Working Definition of Antisemitism https://www.holocaustremembrance.com/resources/working-definitions-charters/ working-definition-antisemitism

Working Definition of Antigypsianism/Anti-Roma Discrimination https://www.holocaustremembrance.com/resources/working-definitions-charters/ working-definition-antigypsyism-anti-roma-discrimination

International Memorial Museums Charter https://holocaustremembrance.com/resources/working-definitions-charters/ international-memorial-museums-charter

61 In partnership with UNESCO

nited Nations Educational, Scientiﬁc and ultural Organiation 62 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian

Denialism: what drives people to reject he truth From vaccines to climate change to genocide, a new age of denialism is upon us. Why have we failed to understand it? By Keith KahnHarris

Main image: Photograph: Getty/Guardian Design

Fri 3 Aug 2018 01.00 EDT

e are all in denial, some of the time at least. Part of being human, and living in a society with other humans, is ﬁnding clever ways to express – and conceal – our feelings. From the most sophisticated diplomatic language to the baldest lie, humans ﬁnd ways to deceive. Deceptions are not necessarily malign; at some level they are vital if humans are to live together with civility. As Richard Sennett has argued: “In practising social civility, you keep silent about things Wyou know clearly but which you should not and do not say.”

Just as we can suppress some aspects of ourselves in our self-presentation to others, so we can do the same to ourselves in acknowledging or not acknowledging what we desire. Most of the time, we spare ourselves from the torture of recognising our baser yearnings. But when does this necessary private self-deception become harmful? When it becomes public dogma. In other words: when it becomes denialism.

Denialism is an expansion, an intensiﬁcation, of denial. At root, denial and denialism are simply a subset of the many ways humans have developed to use language to deceive others and themselves. Denial can be as simple as refusing to accept that someone else is speaking truthfully. Denial can be as unfathomable as the multiple ways we avoid acknowledging our weaknesses and secret desires.

Denialism is more than just another manifestation of the humdrum intricacies of our deceptions and self-deceptions. It represents the transformation of the everyday practice of denial into a whole new way of seeing the world and – most important – a collective accomplishment. Denial is furtive and routine; denialism is combative and extraordinary. Denial hides from the truth, denialism builds a new and better truth.

In recent years, the term has been used to describe a number of fields of “scholarship”, whose scholars engage in audacious projects to hold back, against seemingly insurmountable odds, the findings of an avalanche of research. They argue that the Holocaust (and other genocides) never happened, that anthropogenic (human-caused) climate change is a myth, that Aids either does not exist or is unrelated to HIV, that evolution is a scientific impossibility, and that all manner of other scientific and historical orthodoxies must be rejected.

https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 1/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian In some ways, denialism is a terrible term. No one calls themselves a “denialist”, and no one signs up to all forms of denialism. In fact, denialism is founded on the assertion that it is not denialism. In the wake of Freud (or at least the vulgarisation of Freud), no one wants to be accused of being “in denial”, and labelling people denialists seems to compound the insult by implying that they have taken the private sickness of denial and turned it into public dogma.

But denial and denialism are closely linked; what humans do on a large scale is rooted in what we do on a small scale. While everyday denial can be harmful, it is also just a mundane way for humans to respond to the incredibly diﬃcult challenge of living in a social world in which people lie, make mistakes and have desires that cannot be openly acknowledged. Denialism is rooted in human tendencies that are neither freakish nor pathological.

All that said, there is no doubt that denialism is dangerous. In some cases, we can point to concrete examples of denialism causing actual harm. In South Africa, President Thabo Mbeki, in office between 1999 and 2008, was influenced by Aids denialists such as Peter Duesberg, who deny the link between HIV and Aids (or even HIV’s existence) and cast doubt on the effectiveness of anti-retroviral drugs. Mbeki’s reluctance to implement national treatment programmes using anti-retrovirals has been estimated to have cost the lives of 330,000 people. On a smaller scale, in early 2017 the Somali-American community in Minnesota was struck by a childhood measles outbreak, as a direct result of proponents of the discredited theory that the MMR vaccine causes autism, persuading parents not to vaccinate their children.

More commonly though, denialism’s eﬀects are less direct but more insidious. Climate change denialists have not managed to overturn the general scientiﬁc consensus that it is occurring and caused by human activity. What they have managed to do is provide subtle and not-so-subtle support for those opposed to taking radical action to address this urgent problem. Achieving a global agreement that could underpin a transition to a post-carbon economy, and that would be capable of slowing the temperature increase, was always going to be an enormous challenge. Climate change denialism has helped to make the challenge even harder.

Denialism can also create an environment of hate and suspicion. Forms of genocide denialism are not just attempts to overthrow irrefutable historical facts; they are an assault on those who survive genocide, and their descendants. The implacable denialism that has led the Turkish state to refuse to admit that the 1915 Armenian genocide occurred is also an attack on today’s Armenians, and on any other minority that would dare to raise troubling questions about the status of minorities in Turkey. Similarly, those who deny the Holocaust are not trying to disinterestedly “correct” the historical record; they are, with varying degrees of subtlety, trying to show that Jews are pathological liars and fundamentally dangerous, as well as to rehabilitate the reputation of the Nazis.

The dangers that other forms of denialism pose may be less concrete, but they are no less serious. Denial of evolution, for example, does not have an immediately hateful payoﬀ; rather it works to foster a distrust in science and research that feeds into other denialisms and undermines evidence-based policymaking. Even lunatic-fringe denialisms, such as ﬂat Earth theories, while hard to take seriously, help to create an environment in which real scholarship and political attempts to engage with reality, break down in favour of an all-encompassing suspicion that nothing is what it seems.

Denialism has moved from the fringes to the centre of public discourse, helped in part by new technology. As information becomes freer to access online, as “research” has been opened to https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 2/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian anyone with a web browser, as previously marginal voices climb on to the online soapbox, so the opportunities for countering accepted truths multiply. No one can be entirely ostracised, marginalised and dismissed as a crank anymore.

The sheer profusion of voices, the plurality of opinions, the cacophony of the controversy, are enough to make anyone doubt what they should believe.

o how do you fight denialism? Denialism offers a dystopian vision of a world unmoored, in which nothing can be taken for granted and no one can be trusted. If you believe that you are being constantly lied to, paradoxically you may be in danger of accepting the untruths of others. Denialism is a mix of corrosive doubt and corrosive credulity. SIt’s perfectly understandable that denialism sparks anger and outrage, particularly in those who are directly challenged by it. If you are a Holocaust survivor, a historian, a climate scientist, a resident of a flood-plain, a geologist, an Aids researcher or someone whose child caught a preventable disease from an unvaccinated child, denialism can feel like an assault on your life’s work, your core beliefs or even your life itself. Such people do fight back. This can include, in some countries, supporting laws against denialism, as in France’s prohibition of Holocaust denial. Attempts to teach “creation science” alongside evolution in US schools are fought with tenacity. Denialists are routinely excluded from scholarly journals and academic conferences.

The most common response to denialism, though, is debunking. Just as denialists produce a large and ever-growing body of books, articles, websites, lectures and videos, so their detractors respond with a literature of their own. Denialist claims are refuted point by point, in a spiralling contest in which no argument – however ludicrous – is ever left unchallenged. Some debunkings are endlessly patient and civil, treating denialists and their claims seriously and even respectfully; others are angry and contemptuous.

Yet none of these strategies work, at least not completely. Take the libel case that the Holocaust denier David Irving brought against Deborah Lipstadt in 1996. Irving’s claim that accusing him of being a Holocaust denier and a falsiﬁer of history was libellous were forensically demolished by Richard Evans and other eminent historians. The judgment was devastating to Irving’s reputation and unambiguous in its rejection of his claim to be a legitimate historian. The judgment bankrupted him, he was repudiated by the few remaining mainstream historians who had supported him, and in 2006 he was imprisoned in Austria for Holocaust denial.

https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 3/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian

David Irving in Austria after being imprisoned for Holocaust denial in 2006. Photograph: Herbert Neubauer/Reuters

But Irving today? He is still writing and lecturing, albeit in a more covert fashion. He still makes similar claims and his defenders see him as a heroic ﬁgure who survived the attempts of the Jewish-led establishment to silence him. Nothing really changed. Holocaust denial is still around, and its proponents ﬁnd new followers. In legal and scholarly terms, Lipstadt won an absolute victory, but she didn’t beat Holocaust denial or even Irving in the long term.

There is a salutary lesson here: in democratic societies at least, denialism cannot be beaten legally, or through debunking, or through attempts to discredit its proponents. That’s because, for denialists, the existence of denialism is itself a triumph. Central to denialism is an argument that “the truth” has been suppressed by its enemies. To continue to exist is a heroic act, a victory for the forces of truth.

Of course, denialists might yearn for a more complete victory – when theories of anthropogenic climate change will be marginalised in academia and politics, when the story of how the Jews hoaxed the world will be in every history book – but, for now, every day that denialism persists is a good day. In fact, denialism can achieve more modest triumphs even without total victory. For the denialist, every day barrels of oil continue to be extracted and burned is a good day, every day a parent doesn’t vaccinate their child is a good day, every day a teenager Googling the Holocaust ﬁnds out that some people think it never happened is a good day.

Conversely, denialism’s opponents rarely have time on their side. As climate change rushes towards the point of no return, as Holocaust survivors die and can no longer give testimony, as once-vanquished diseases threaten pandemics, as the notion that there is “doubt” on settled scholarship becomes unremarkable, so the task facing the debunkers becomes both more urgent and more diﬃcult. It’s understandable that panic can set in and that anger overwhelms some of those who battle against denialism.

A better approach to denialism is one of self-criticism. The starting point is a frank question: why did we fail? Why have those of us who abhor denialism not succeeded in halting its onward march? And why have we as a species managed to turn our everyday capacity to deny into an organised attempt to undermine our collective ability to understand the world and change it for the better? https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 4/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian These questions are beginning to be asked in some circles. They are often the result of a kind of despair. Campaigners against anthropogenic global warming often lament that, as the task becomes ever more urgent, so denialism continues to run rampant (along with apathy and “softer” forms of denial). It appears that nothing works in the campaign to make humanity aware of the threat it faces.

The obstinacy with which people can stick to disproved notions is attested to in the social sciences and in neuroscientific research. Humans are not only reasoning beings who disinterestedly weigh evidence and arguments. But there is a difference between the pre- conscious search for confirmation of existing views – we all engage in that to some extent – and the deliberate attempt to dress this search up as a quest for truth, as denialists do. Denialism adds extra layers of reinforcement and defence around widely shared psychological practices with the (never articulated) aim of preventing their exposure. This certainly makes changing the minds of denialists even more difficult than changing the minds of the rest of stubborn humanity.

There are multiple kinds of denialists: from those who are sceptical of all established knowledge, to those who challenge one type of knowledge; from those who actively contribute to the creation of denialist scholarship, to those who quietly consume it; from those who burn with certainty, to those who are privately sceptical about their scepticism. What they all have in common, I would argue, is a particular type of desire. This desire – for something not to be true – is the driver of denialism.

mpathy with denialists is not easy, but it is essential. Denialism is not stupidity, or ignorance, or mendacity, or psychological pathology. Nor is it the same as lying. Of course, denialists can be stupid, ignorant liars, but so can any of us. But denialists are people in a desperate predicament.

It is a very modern predicament. Denialism is a post‑enlightenment phenomenon, a Ereaction to the “inconvenience” of many of the ﬁndings of modern scholarship. The discovery of evolution, for example, is inconvenient to those committed to a literalist biblical account of creation. Denialism is also a reaction to the inconvenience of the moral consensus that emerged in the post-enlightenment world. In the ancient world, you could erect a monument proudly proclaiming the genocide you committed to the world. In the modern world, mass killing, mass starvation, mass environmental catastrophe can no longer be publicly legitimated.

Yet many humans still want to do the same things humans always did. We are still desiring beings. We want to murder, to steal, to destroy and to despoil. We want to preserve our ignorance and unquestioned faith. So when our desires are rendered unspeakable in the modern world, we are forced to pretend that we do not yearn for things we desire.

Denial is not enough here. As an attempt to draw awareness and attention away from something unpalatable, it is always vulnerable to challenge. Denial is a kind of high-wire act that can be unbalanced by forceful attempts to draw attention to what is being denied.

Denialism is, in part, a response to the vulnerability of denial. To be in denial is to know at some level. To be a denialist is to never have to know at all. Denialism is a systematic attempt to prevent challenge and acknowledgment; to suggest that there is nothing to acknowledge. Whereas denial is at least subject to the possibility of confrontation with reality, denialism can rarely be undermined by appeals to face the truth.

https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 5/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian The tragedy for denialists is that they concede the argument in advance. Holocaust deniers’ attempts to deny that the Holocaust took place imply that it would not have been a good thing if it had. Climate change denialism is predicated on a similarly hidden acknowledgment that, if anthropogenic climate change were actually occurring, we would have to do something about it.

Denialism is therefore not just hard work – ﬁnding ways to discredit mountains of evidence is a tremendous labour – but also involves suppressing the expression of one’s desires. Denialists are “trapped” into byzantine modes of argument because they have few other options in pursuing their goals.

Denialism, and related phenomena, are often portrayed as a “war on science”. This is an understandable but profound misunderstanding. Certainly, denialism and other forms of pseudo- scholarship do not follow mainstream scientiﬁc methodologies. Denialism does indeed represent a perversion of the scholarly method, and the science it produces rests on profoundly erroneous assumptions, but denialism does all this in the name of science and scholarship. Denialism aims to replace one kind of science with another – it does not aim to replace science itself. In fact, denialism constitutes a tribute to the prestige of science and scholarship in the modern world. Denialists are desperate for the public validation that science aﬀords.

While denialism has sometimes been seen as part of a post-modern assault on truth, the denialist is just as invested in notions of scientiﬁc objectivity as the most unreconstructed positivist. Even those who are genuinely committed to alternatives to western rationality and science can wield denialist rhetoric that apes precisely the kind of scientism they despise. Anti-vaxxers, for example, sometimes seem to want to have their cake and eat it: to have their critique of western medicine validated by western medicine.

The rhetoric of denialism and its critics can resemble each other in a kind of war to the death over who gets to wear the mantle of science. The term “junk science” has been applied to climate change denialism, as well as in defence of it. Mainstream science can also be dogmatic and blind to its own limitations. If the accusation that global warming is an example of politicised ideology masked as science is met with indignant assertions of the absolute objectivity of “real” science, there is a risk of blinding oneself to uncomfortable questions regarding the subtle and not-so- subtle ways in which the idea of pure truth, untrammelled by human interests, is elusive. Human interests can rarely if ever be separated from the ways we observe the world. Indeed, sociologists of science have shown how modern ideas of disinterested scientiﬁc knowledge have disguised the inextricable links between knowledge and human interests.

I do not believe that, if only one could ﬁnd the key to “make them understand”, denialists would think just like me. A global warming denialist is not an environmentalist who cannot accept that he or she is really an environmentalist; a Holocaust denier is not someone who cannot face the inescapable obligation to commemorate the Holocaust; an Aids denialist is not an Aids activist who won’t acknowledge the necessity for western medicine in combating the disease; and so on. If denialists were to stop denying, we cannot assume that we would then have a shared moral foundation on which we could make progress as a species.

Denialism is not a barrier to acknowledging a common moral foundation; it is a barrier to acknowledging moral diﬀerences. An end to denialism is therefore a disturbing prospect, as it would involve these moral diﬀerences revealing themselves directly. But we need to start preparing for that eventuality, because denialism is starting to break down – and not in a good way. https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 6/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian n 6 November 2012, when he was already preparing the ground for his presidential run, Donald Trump sent a tweet about climate change. It said: “The concept of global warming was created by and for the Chinese in order to make U.S. manufacturing non-competitive.”

At the time, this seemed to be just another example of the mainstreaming of Oclimate change denialism on the American right. After all, the second Bush administration had done as little as possible to combat climate change, and many leading Republicans are prominent crusaders against mainstream climate science. Yet something else was happening here, too; the tweet was a harbinger of a new kind of post-denialist discourse.

Trump’s claim is not one that is regularly made by “mainstream” global warming denialists. It may have been a garbled version of the common argument on the US right that global climate treaties will unfairly weaken the US economy to the beneﬁt of China. Like much of Trump’s discourse, the tweet was simply thrown into the world without much thought. This is not how denialism usually works. Denialists usually labour for decades to produce, often against overwhelming odds, carefully crafted simulacra of scholarship that, to non-experts at least, are indistinguishable from the real thing. They have reﬁned alternative scholarly techniques that can cast doubt on even the most solid of truths.

Donald Trump announcing his decision to withdraw the US from the Paris climate agreement. Photograph: Kevin Lamarque/Reuters

Trump and the post-truthers’ “lazy” denialism rests on the security that comes from knowing that generations of denialists have created enough doubt already; all people like Trump need to do is to signal vaguely in a denialist direction. Whereas denialism explains – at great length – post- denialism asserts. Whereas denialism is painstakingly thought-through, post-denialism is instinctive. Whereas denialism is disciplined, post-denialism is anarchic.

The internet has been an important factor in this weakening of denialist self-discipline. The intemperance of the online world is pushing denialism so far that it is beginning to fall apart. The new generation of denialists aren’t creating new, alternative orthodoxies so much as obliterating the very idea of orthodoxy itself. The collective, institutional work of building a substantial bulwark against scholarly consensus gives way to a kind of free-for-all.

One example of this is the 9/11 truth movement. Because the attacks occurred in an already wired world, the denialism it spawned has never managed to institutionalise and develop an orthodoxy in the way that pre-internet denialisms did. Those who believe that the “oﬃcial story” of the September 11 attacks was a lie can believe that elements in the US government had foreknowledge https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 7/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian of the attacks but let them happen, or that the attacks were deliberately planned and carried out by the government, or that Jews/Israel/Mossad were behind it, or that shadowy forces in the “New World Order” were behind it – or some cocktail of all of these. They can believe that the towers were brought down by controlled demolition, or that no planes hit the towers, or that there were no ﬂoors in the towers, or that there were no passengers in the planes.

Post-denialism represents a freeing of the repressed desires that drive denialism. While it still based on the denial of an established truth, its methods liberate a deeper kind of desire: to remake truth itself, to remake the world, to unleash the power to reorder reality itself and stamp one’s mark on the planet. What matters in post-denialism is not the establishment of an alternative scholarly credibility, so much as giving yourself blanket permission to see the world however you like.

hile post-denialism has not yet supplanted its predecessor, old-style denialism is beginning to be questioned by some of its practitioners as they take tentative steps towards a new age. This is particularly evident on the racist far right, where the dominance of Holocaust denial is beginning to erode.

Mark Weber, director of the (denialist) Institute for Historical Review, glumly Wconcluded in an article in 2009 that Holocaust denial had become irrelevant in a world that continues to memorialise the genocide. Some Holocaust deniers have even recanted, expressing their frustration with the movement and acknowledging that many of its claims are simply untenable, as Eric Hunt, previously a producer of widely circulated online videos denying the Holocaust, did in 2016. Yet such admissions of defeat are certainly not accompanied by a retreat from antisemitism. Weber treats the failures of Holocaust denial as a consequence of the nefarious power of the Jews: “Suppose The New York Times were to report tomorrow that Israel’s Yad Vashem Holocaust centre and the US Holocaust Memorial Museum had announced that no more than 1 million Jews died during the second world war, and that no Jews were killed in gas chambers at Auschwitz. The impact on Jewish-Zionist power would surely be minimal.”

Those who were previously “forced” into Holocaust denial are starting to sense that it may be possible to publicly celebrate genocide once again, to revel in antisemitism’s ﬁnest hour. The heightened scrutiny of far-right movements in the last couple of years has unearthed statements that might once have remained unspoken, or only spoken behind closed doors. In August 2017, for example, one KKK leader told a journalist: “We killed 6 million Jews the last time. Eleven million [immigrants] is nothing.” A piece published by the Daily Stormer in advance of the white nationalist rally in Charlottesville that same month ended: “Next stop: Charlottesville, VA. Final stop: Auschwitz.”

Indeed, the Daily Stormer, one of the most prominent online publications of the resurgent far- right, demonstrates an exuberant agility in balancing denialism, post-denialism and open hatred simultaneously, using humour as a method of ﬂoating between them all. But there is no doubt what the ultimate destination is. As Andrew Anglin, who runs the site, put it in a style guide for contributors that was later leaked to the press: “The unindoctrinated should not be able to tell if we are joking or not. There should also be a conscious awareness of mocking stereotypes of hateful racists. I usually think of this as self-deprecating humour – I am a racist making fun of stereotypes of racists, because I don’t take myself super-seriously. This is obviously a ploy and I actually do want to gas kikes. But that’s neither here nor there.”

https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 8/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian Not all denialists are taking these steps towards open acknowledgment of their desires. In some ﬁelds, the commitment to repressing desire remains strong. We are not yet at a stage when a climate change denier can come out and say, proudly, “Bangladesh will be submerged, millions will suﬀer as a result of anthropogenic climate change, but we must still preserve our carbon- based way of life, no matter what the cost.” Nor are anti-vaxxers ready to argue that, even though vaccines do not cause autism, the death of children from preventable diseases is a regrettable necessity if we are to be released from the clutches of Big Pharma.

Still, over time it is likely that traditional denialists will be increasingly inﬂuenced by the emerging post-denialist milieu. After all, what oil industry-funded wonk labouring to put together a policy paper suggesting that polar bear populations aren’t declining hasn’t fantasised of resorting to gleeful, Trumpian assertions?

he possibility of an epochal shift away from denialism means that there is now no avoiding a reckoning with some discomfiting issues: how do we respond to people who have radically different desires and morals from our own? How do we respond to people who delight in or are indifferent to genocide, to the suffering of millions, to venality and greed? TDenialism, and the multitude of other ways that modern humans have obfuscated their desires, prevent a true reckoning with the unsettling fact that some of us might desire things that most of us regard as morally reprehensible. I say “might” because while denialism is an attempt to covertly legitimise an unspeakable desire, the nature of the denialist’s understanding of the consequences of enacting that desire is usually unknowable.

It is hard to tell whether global warming denialists are secretly longing for the chaos and pain that global warming will bring, are simply indiﬀerent to it, or would desperately like it not to be the case but are overwhelmed with the desire to keep things as they are. It is hard to tell whether Holocaust deniers are preparing the ground for another genocide, or want to keep a pristine image of the goodness of the Nazis and the evil of the Jews. It is hard to tell whether an Aids denialist who works to prevent Africans from having access to anti-retrovirals is getting a kick out of their power over life and death, or is on a mission to save them from the evils of the west.

If the new realm of unrestrained online discourse, and the example set by Trump, tempts more and more denialists to transition towards post-denialism and beyond, we will ﬁnally know where we stand. Instead of chasing shadows, we will be able to contemplate the stark moral choices we humans face.

Maybe we have been putting this test off for too long. The liberation of desire we are beginning to witness is forcing us all to confront some very difficult questions: who are we as a species? Do we all (the odd sociopath aside) share a common moral foundation? How do we relate to people whose desires are starkly different from our own?

Perhaps, if we can face up to the challenge presented by these new revelations, it might pave the way for a politics shorn of illusion and moral masquerade, where diﬀerent visions of what it is to be human can openly contend. This might be a ﬁrmer foundation on which to rekindle some hope for human progress – based not on illusions of what we would like to be, but on an accounting of what we are.

https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 9/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian Adapted from Denial: The Unspeakable Truth by Keith Kahn-Harris, which will be published by Notting Hill Editions on 13 September, and is available to pre-order at guardianbookshop.com

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Topics The long read Climate change (Environment) Holocaust Donald Trump Vaccines and immunisation Climate change (Science) Health https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 10/11 2/15/2021 Denialism: what drives people to reject the truth | News | The Guardian features

https://www.theguardian.com/news/2018/aug/03/denialism-what-drives-people-to-reject-the-truth 11/11 Judicial "Truth" and Historical "Truth": The Case of the Ardeatine Caves Massacre Author(s): GIORGIO RESTA and VINCENZO ZENO-ZENCOVICH Source: Law and History Review , November 2013, Vol. 31, No. 4 (November 2013), pp. 843-886 Published by: American Society for Legal History Stable URL: https://www.jstor.org/stable/43670671

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This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial "Truth" and Historical "Truth": The Case of the Ardeatine Caves Massacre

GIORGIO RESTA AND VINCENZO ZENO-ZENCOVICH

1. Legal and Historical Adjudication

It is frequently claimed that adjudication before a court of law and historical adjudication are two entirely different tasks.1 The methods and techniques employed by judges and historians contrast sharply. The judge faces many constraints, in terms of choice of subject matter, the arguments to be considered, the evidence to be evaluated, the procedural steps to be followed, the substantive rules to be applied, and the time available to reach a decision; historians, by contrast, are relatively free to choose

1. See Carlo Ginzburg, The Judge and the Historian: Marginal Notes on a Late-Twentieth-Century Miscarriage of Justice (London: Verso, 2002), 12-18; Asher Maoz, "Historical Adjudication: Courts of Law, Commissions of Inquiry and "Historical Truth," Law and History Review 18 (2000): 559-606, especially 568-70.

Giorgio Resta is associate professor of comparative law, University of Bari "Aldo Moro" (Italy) . Vincenzo Zeno-Zencovich is full professor of comparative law, University of Roma Tre (Italy) . This article is the result of joint research and reflection. In the break- down of the text, Sections 2-7 are written by Vincenzo Zeno-Zencovich; the rest is by Giorgio Resta. Financial support for this research was provided by the Italian Ministry of Education, University and Research (PRIN 2008: "Le ferite della storia e il diritto riparatore: un'indagine storico-comparatistica"). The authors owe special gratitude to Marcus Moore for his assistance in revising the text; this article has greatly benefited from his thoughtful input. They also thank Daniel Boyer, Luigi Cajani, Antoon De Baets, Helge Dedek, Filippo Focardi, Pieter Lagrou, Helena Lamed, Paolo Pezzino, Giuseppe Tucci, and the anonymous reviewers of Law and History Review for their suggestions and comments on earlier versions of this article. The usual disclaimer applies.

Law and History Review November 2013, Vol. 31, No. 4 © the American Society for Legal History, Inc. 2013 doi: 1 0. 1 0 1 7/S07382480 1 3000485

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 844 Law and History Review , November 2013 their field of research, manage their own time, gather the evidence, evaluate it, decide when findings are ready to be published, and reexamine them.2 The different rules and epistemological foundations of the two intellec- tual activities are easily explained by their diverging social functions: legal adjudication is primarily aimed at resolving disputes among individuals or between the individual and the state; historical adjudication is primarily aimed at fostering knowledge about past "events" and preserving long-term social memory within a community. Whereas a judicial decision is official and normative in character (and formal rules clearly determine who is a "judge"), historical adjudication is generally unofficial and descriptive (and it is not easy to answer the question: "who is a 'historian'"?). The former directly affects the fate and fortune of a person; the latter has immediate implications only for the realm of ideas. In court, a final judgment is a source of knowledge, but its outcome is generally unreviewable; by contrast, historical knowledge, if unreviewable, is not knowledge at all.3 As a consequence, it is argued that the notions of judicial "truth" and historical "truth" cannot be confused and should be clearly distinguished.4 Historical grievances cannot be settled in a courtroom; legal disputes cannot be resolved by historians.5

2. Among the first and best analyses of the similarities and differences between the judge and the historian are the writings by Guido Calogero, La logica del giudice e il suo controllo in Cassazione (Padua: Cedam, 1964, originally published in 1937), 128; and Piero Calamandrei, "Il giudice e lo storico," Rivista di diritto processuale civile 16 (1939): 105-28. More recently, see Claudio Pavone, "Note sulla Resistenza Armata, le rappresaglie naziste ed alcune attuali confusioni," in Priebke e il massacre delle Fosse Ardeatine (Rome: L'Unità, 1996), 39-49; Yan Thomas, "La vérité, le temps, le juge et l'historien," Le Débat 102 (1998): 17-36; Michael Stolleis, "Der Historiker als Richter - der Richter als Historiker," in Geschichte vor Gericht. Historiker, Richter und die Suche nach Gerechtigkeit , ed. Norbert Frei, Dirk Van Laak, and Michael Stolleis (München: Beck, 2000), 173, 177-179; Pietro Costa, "In Search of Legal Texts: Which Texts for Which Historian?" in Reading Past Legal Texts, ed. Dag Michaisen (Oslo: Unipax, 2006), 1 58- 81; and Maria Borrello, Sul giudizio. Verità storica e verità giudiziaria (Naples: Edizioni Scientifiche Italiane, 2011). 3. Massimo Donini, "La gestione penale del passaggio dal fascismo alla democrazia in Italia. Appunti sulla memoria storica e l'elaborazione del passato 'mediante il diritto penale'," Materiali per una storia della cultura giuridica 39 (2009): 183; see also Norberto Bobbio, "A quando, la libertà dagli 'spietati doveri'?" in Una "inutile strage"? Da via Rasella alle Fosse Ardeatine, ed. Angiolo Bandinelli and Valter Vecellio (Naples: Pironti, 1982), 68-69 (noting that "in the court of history, there are no final judgments"). 4. Thomas, "La vérité,' le temps, le juge et l'historien," 21 ("historiens et juristes ne s'ap- puient pas sur une même idée de la vérité [. . .] On dit communément que la vérité en histoire est affaire d'adéquation du jugement aux faits alors que, en droit, le jugement ne constate pas, mais déclare la vérité"). 5. Stolleis, "Der Historiker als Richter - der Richter als Historiker," 180.

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These assertions are theoretically accurate and there is no reason to dispute them even from a normative point of view. The question to be raised concerns their correspondence to reality. Taking a legal realist perspective, it might be doubted that such a sharp dichotomy is exactly mirrored in the way in which law and history actually work in our social systems. At least since the Nuremberg Trials,6 the boundaries between legal and historical adjudication have become increasingly blurred, and the two disciplines have started to interact more closely. The postwar paradigm shift has transformed the courts into a social arena in which history is frequently put on trial,7 with the aim of redressing wrongs, repairing historical injustices, and even fulfilling social demands for reliable knowledge and impartial "truth" about past events.8 Criminal trials have been natu- rally at the forefront in this process, but nowadays civil trials have assumed an increased importance,9 as is clearly shown by the Holocaust-related litigation,10 or by the slavery reparations debate.11 As a result, adjudication of legal disputes is often intertwined with the

6. See Annette Wieviorka, "Justice, Histoire et Mémoire. De Nuremberg à Jérusalem," Droit et société 38 (1998): 59-67. 7. This is clearly shown by the impressive list of worldwide "history-related legal cases," provided by the Network of Concerned Historians, http://www.concernedhistorians.org/con tent/le.html (September 8, 2012). 8. Particularly relevant, from this point of view, is the example of the so-called truth-finding trials in Argentina: see Elena Maculan, "Prosecuting International Crimes at National Level, Lessons from the Argentine 'Truth-Finding Trials'," Utrecht Law Review 8 (2012): 106-21; and Martín Abregú, "La tutela judicial del derecho a la verdad en la Argentina," Revista IIDH Instituto Interamericano de derechos humanos 24 (1996): 1 1-41. 9. Antoine Garapon, Peut-on réparer l'histoire? Colonisation, esclavage, Shoah (Paris: Odile Jacob, 2008); and Saul Levmore, "Privatizing Reparations," Boston University Law Review 84 (2004): 1291-318. 10. Leonard Orland, A Final Accounting. Holocaust Survivors and Swiss Banks (Durham, NC: Carolina Academic Press, 2010); Regula Ludi, "Historical Reflections on Holocaust Reparations: Unfinished Business or an Example for Other Reparations Campaigns?" in Repairing the Past? International Perspectives on Reparations for Gross Human Rights Abuses, ed. Max du Plessis and Stephen Peté, (Antwerpen-Oxford: Intersentia, 2007), 119-44; Michael J. Bazyler, "The Holocaust Restitution Movement in Comparative Perspective," Berkeley Journal of International Law 20 (2002): 1 1-44; and Samuel P. Baumgartner "Human Rights and Civil Litigation in United States Courts: The Holocaust-Era Cases," Washington University Law Journal 80 (2002): 835-54. 11. Diane E. Sammons, "Corporate Reparations for Descendants of Enslaved African-Americans - Practical Obstacles," in Repairing the Past? (Antwerpen-Oxford: Intersentia, 2007), 315-58; Keith N. Hylton, "Slavery and Tort Law," Boston University Law Review 84 (2004): 1209-55; Charles J. Ogletree, "Repairing the Past: New Efforts in the Reparations Debate in North America," Harvard Civil Rights-Civil Liberties Law Review 38 (2003): 279-320; and Eric A. Posner and Adrian Vermeule, "Reparations for Slavery and Other Historical Injustices," Columbia Law Review 103 (2003): 689-747.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 846 Law and History Review, November 2013 resolution of historical controversies, whose importance is no longer restricted to political decisions or scholarly debates. Not only has the practice of using history to support legal arguments become pervasive12; legal institutions - the courts, but also extrajudicial committees13 - have also increasingly resorted to historical expertise to ascertain specific facts, elucidate their background, or evaluate opinions whose understanding goes beyond the skills or time constraints of a judge or other decision maker. In a number of cases, historians have been called upon to appear in court as expert witnesses.14 The Frankfurt Auschwitz trial15 and the Papon trial16 are two paradigmatic examples, but this phenomenon is by no means limited to criminal adjudication. Particularly in North America, the use of historical expertise has become a distinctive feature of many civil trials, chiefly deployed in regard to controversies concerning civil rights, property law, and aboriginal rights.17 History, in short, has been rendered auxiliary to law, and the ascertainment of "truth" by

12. Matthew J. Festa, "Applying a Usable Past: The Use of History in Law," Seton Hall Law Review 38 (2008): 479, 488-98 (discussing the phenomenon of "law office history," as it was first defined by Alfred Kelly). 13. As regards the role of historians within so-called truth committees, see Maria Rosaria Stabili, "Gli storici e le Comisiones de la verdad latinoameričane," Contemporanea 12 (2009): 137-42; for an interesting account of the experience of the Swiss Bergier-Commission, an independent body created to investigate the issue of restitution of property unlawfully seized by National Socialists, see Gregor Spuhler, "Die Bergier-Kommission als «Geschichtsbarkeit»? Zum Verhältnis von Geschichte, Recht und Politik," Traverse: Zeitschrift fiir Geschichte 11 (2004): 100-114. 14. See Paolo Pezzino, "'Experts in truth?': The Politics of Retribution in Italy and the Role of Historians," Modern Italy 15 (2010): 349-63; Vladimir Petrovic, Historians as Expert Witnesses in the Age of Extremes (PhD diss. Budapest: Central European University, 2009); David Rosner, "Trials and Tribulations: What Happens When Historians Enter the Courtroom," Law and Contemporary Problems 72 (2009): 137-158; Festa, "Applying a Usable Past: The Use of History in Law," 540; Richard J. Evans, "History, Memory and the Law: The Historian as Expert Witness," History and Theory 41 (2002): 326-45; and Dominique Damamme and Marie-Claire Lavabre, "Les historiens dans l'espace public," Sociétés Contemporaines 39 (2000): 5, 10-16. 15. Irmtrud Wojak, "Die Verschmelzung von Geschichte und Kriminologie. Historische Gutachten im ersten Frankfurter Auschwitz-Prozeß," in Geschichte vor Gericht, 29-42. 16. See Henri Rousso, "Justiz, Geschichte und Erinnerung in Frankreich. Überlegungen zum Papon-Prozeß," in Geschichte vor Gericht, 141, 155. 17. Olivier Dumoulin, Le rôle social de l'historien. De la chaire au prétoire (Paris: Albin Michel, 2003): 11, 63-106; Olivier Lévy-Dumoulin, "Des faits à l'interprétation: l'histoire au prétoire. Un exemple ćanadien," La revue pour l' Histoire du CNRS [en ligne] 16 (2007): 1-7; Petrovic, Historians as Expert Witnesses in the Age of Extremes , 142, 176; and Eric H. Reiter, "Fact, Narrative, and the Judicial Uses of History: Delgamuukw and Beyond," Indigenous Law Journal 8 (2010): 55-79.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial "Truth " and Historical " Truth " 847 historians has started to influence, directly or indirectly, the definition of "judicial truth."18 If the law turns out to be increasingly dependent on historical disciplines to accomplish its tasks, historical research has also been affected by a far- reaching phenomenon of "juridification." It is probably going too far to claim that historiography has been "saisi par le droit"19; however, it can hardly be denied that today's historians face many legal constraints both as regards the writing of history and the diffusion of its results. True, the proliferation of legal norms is not in itself proof of increasing restriction of historians' freedom. Regulation can be perfectly freedom enhancing, as is shown by the example of state archives, whose existence and free accessibility to all are crucial to any historical inquiry.20 However, the tendency in recent years, particularly in continental Europe, has clearly been toward a narrowing of the scope of historians' freedom. Access to sources has been put under closer supervision, particularly (but not only) with the aim of safeguarding the individual's interest in privacy and reputation.21 Above all, the disclosure of research results and the expression of opinions in historical matters have been - particularly in the field of contemporary history - subjected to stricter limits.22 Whether by means of judicial rulings or legislative intervention (of which the French "memorial laws" are paradigmatic), a series of official historical "truths" have been authoritatively established and protected against public contestation or gross trivialization, under threat of civil or criminal liability.23 Holocaust denial is the most

18. For an early critique of the tendency toward a kind of "forensic historicism" see Ernst Forsthoff, "Der Zeithistoriker als gerichtlicher Sachverständiger," Neue Juristische Wochenschrift 18 (1965): 574-75 (discussing the Frankfurt Auschwitz trial). 19. Carole Vivant, L 'historien saisi par le droit. Contribution à l'étude des droits de l'histoire (Paris: Dalloz, 2007). 20. Emmanuel Cartier, "Histoire et droit: rivalité ou complémentarité?," Revue française de Droit constitutionnel 67 (2006): 509, 516. 21. Particularly relevant is the Italian experience: see legislative decree 30-7-1999, no. 281 (introducing a particular regime for the processing of personal data for purposes of historical research) and the decision of the Italian Data Protection Authority, 14-3-2001, http:// www.garanteprivacy.it/garante/doc.jsp?ID= 15564 19 (September 8, 2012) (sanctioning the adoption of a code of self-regulation concerning the processing of personal data for purposes of historical research). See Paola Canicci, "La salvaguardia delle fonti e il diritto di accesso," in Segreti personali e segreti di stato. Privacy, archivi e ricerca storica, ed. Carlo Spagnolo (Fucecchio: European Press Academic Publishing, 2001), 47-54. 22. See, generally, Diane de Bellescize, "L'autorité du droit sur l'histoire," in L 'autorité, ed. Jean Foyer, Gilles Lebreton and Catherine Puigelier (Paris: Presses Universitaires de France, 2008), 51-84. 23. For a comparative overview, see Ludovic Hennebel and Thomas Hochmann, ed., Genocide Denial and the Law (Oxford: Oxford University Press, 2011); as regards the

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 848 Law and History Review , November 2013 salient example,24 but not the only one. In 2012, the French Constitutional Court struck down the last of the so-called lois mémorie lies, prohibiting the denial of the Armenian genocide (loi 23-1- 2012, no. 2012-647).25 Such a phenomenon is not limited to France or Germany. In 2008, the European Union adopted a framework decision providing for the punishment of activities including "publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes."26 Historians have been deeply concerned by this development, but their responses have not been uniform; many historians have publicly opposed such content-based regulations of speech, maintaining that "[i]n a free state, no political authority has the right to define historical truth and to restrain the freedom of the historian with the threat of penal sanctions"27; others have been less critical, considering the "institutionalization of truth" with regard to "clearly established historical facts"28 as an effective instru- ment to drive out of the marketplace of ideas dealers that lack factual foundation and scientific legitimacy.29 In practice, however, the impact of legal norms concerning the way in which history is written and publicly

French experience, see Cartier, "Histoire et droit: rivalité ou complémentarité?" 527-33 (discussing "la derive historicide du droit"). 24. Robert Kahn, Holocaust Denial and the Law . A Comparative Study (New York and Basingstoke: Palgrave-Macmillan, 2004). 25. Cons. Const., 28-2-2012, no. 2012-647 DC, Les petites affiches 70 (2012): 1 1, with a comment by Jean-Pierre Camby, "La loi et le négationnisme: de l'exploitation de l'histoire au droit au débat sur l'histoire"; see also Tim René Salomon, "Meinungsfreiheit und die Strafbarkeit des Negationismus," Zeitschrift jur Rechtspolitik 45 (2012): 48. 26. Luigi Cajani, "Criminal Laws on History: The Case of the European Union," Historein 11 (2011): 19-40; and Laurent Pech, "The Law of Holocaust Denial in Europe: Toward a (qualified) EU-wide Criminal Prohibition," in Genocide Denial and the Law, 185-234. 27. The sentence quoted is taken from the "Blois Appeal" promoted by the Association "Liberté pour l'histoire," http://www.lph-asso.fr/index.php?option=com_content&view= article&id=47&Itemid=14&lang=en (September 8, 2012); on this see Pierre Nora, "History, Memory and the Law in France, 1990-2010," Historein 11 (2011): 10-13; Luigi Cajani, "Historians between Memory Wars and Criminal Laws: The Case of the European Union," in Jahrbuch der Internationalen Gesellschaft für Geschichtsdidaktik (Schwalbach/Ts: Wochenschau, 2008), 27. 28. This is the category adopted by the European Court of Human Rights to affirm the compatibility of genocide denial legislation with Article 10 of the European Convention of Human Rights. See Pech, "The Law of Holocaust Denial in Europe," 213. 29. On this, see the remarks by Jean-Clément Martin, "La démarche historique face à la vérité judiciaire. Juges et historiens," Droit et société 38 (1998): 13, 16-17; and Wolfgang Benz, "Holocaust Denial: Anti-Semitism as a Refusal to Accept Reality," Historein 11 (2011): 69-78.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial "Truth " and Historical " Truth " 849 represented30 is certainly growing, just as it is in relation to many other disciplines and social phenomena.31 It seems, therefore, that the dichotomy between judicial truth and historical truth is an extremely useful ideal type; however, its orthodoxy has come under strain, and it seems sometimes to be flawed in practice. Some authors have been explicitly talking about a "judicialization of history" (" tribuna - lizzazione della storia "), adapting a famous aphorism by Friedrich von Schiller in order to designate the distinctively modern phenomenon of historical adjudication by courts of law, and the influence of legal trials on the writing of history.32 Such a development presents novel and interesting challenges both to legal scholars and to historians. If a process of enhanced communication between law and history is under way, and in particular if judicial institutions are frequently called upon to fulfill societal needs for impartial knowledge about past events, are courts to be regarded as reliable historians? Can they offer consistent narratives, between one court and another? Should historians be bound by the outcome of a trial? And should judges exercise self-restraint in second guessing the findings of historical inquiries? These are some of the controversial issues at the intersection of law and history that we address in this article. We will not approach them from a theoretical perspective. Rather, we will start from analysis of a specific case, which will be used to illustrate in concrete terms some of the problems arising from the "judicialization" of contemporary history. The case is taken from the Italian postwar experience and consists of a complicated set of controversies which all ensued from the same chain of events: the partisan (Italian resistance forces) attack on via Rasella, Rome (March

30. On the notion of "public use of history" see Nicola Gallerano, "Storia e uso pubblico della storia," in L'uso pubblico della storia, ed. Nicola Gallerano (Milan: F. Angeli, 1995), 17; Damamme and Lavabre, "Les historiens dans l'espace public" ; and Dumoulin, Le rôle social de l'historien, 91. 31. See, generally, Gunther Teubner, ed., Juridification of Social Spheres. A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law (Berlin and New York: De Gruyter, 1987); Stefano Rodotà, La vita e le regole. Tra diritto e non diritto (Milan: Feltrinelli, 2006), 9-72; Lars Chr. Blichner and Anders Molander, "What is Juridification?," Working Paper University of Oslo, 14 (2005): 2-41, https://www.sv.uio. no/arena/english/research/publications/arena-publications/workingpapers/working-papers 2005Avp05_14.pdf (September 8, 2012); and David Levi-Faur, "The Political Economy of Legal Globalization: Juridification, Adversarial Legalism, and Responsive Regulation. A Comment," International Organization 59 (2005): 451-62. 32. Alberto Melloni, "Per una storia della tribunalizzazione della storia," in La storia che giudica, la storia che assolve, ed. Odo Marquard and Alberto Melloni (Rome-Bari: Laterza, 2008), 30; see also Jean-Paul Jean, "Le procès et l'écriture de l'histoire," Tracés. Revue de science humaines [en ligne] 9 (2009): 61-74, http://traces.revues.org/4344 (September 8, 2012).

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23, 1944) and the Nazi massacre of the Ardeatine Caves33 which happened the next day (March 24, 1944). The bomb attack on via Rasella and the mass executions that occurred in response to it are two of the most significant and debated events of the story of the Italian Resistance. They are not only part of a collective - albeit strongly divided - memory, but also represent a landmark for any scholar interested in the interplay between legal and historical adjudication. An enormous amount of litigation arose out of them. Two main categories of controversies can be distinguished:

1 . criminal and civil proceedings related to the facts that occurred in Rome on March 23- 24, 1944; 2. criminal and civil proceedings related to the discourses about the same events.

The judgments rendered in these cases are extremely interesting. They are interesting not only because they extend over a long period of time and span the entire legal system (as they concern private law, criminal law, international law, military justice), but also because they delineate one or more judicial "truths" that interact - and sometimes conflict - with the interpretation of the same events given by historians. Particularly significant in these cases is the circumstance that rulings concerning specific facts or omissions (war crimes, civil wrongs) are combined with rulings concerning speech about the same events (defamation and privacy claims). Whereas the debate on the juridification of history has generally focused on the first type of ruling listed, disputes of the latter type are no less important, because they illustrate the way in which the law also constructs historical reality through regulation of speech concerning past events of general interest.34 We will try to shed some light on these questions by referring to the judicial treatment of the violent saga that culminated in the Ardeatine Caves massacre. We will first provide the necessary historical background

33. It is a matter of debate whether the best translation of the Italian "Fosse Ardeatine" is "Ardeatine Quarries" or "Ardeatine Caves." We opted for the latter, as "[t]he 'Fosse' were originally quarries, and the Italian for 'quarries' is cave, which is why they are known as 'caves' in English (as well as because they were underground). Soon after the war the name was changed to 'Fosse' which means 'graves', but also 'ditches'." (Alessandro Portelli, "The Massacre at the Fosse Ardeatine. History, Myth, Ritual and Symbol," in Memory, History, Nation. Contested Pasts, ed. Katharine Hodgkin and Susannah Radstone [Piscataway, NJ: Transaction, 2005], 40). See also the entry "Ardeatine Caves," in The Oxford Companion to World War //, ed. Ian C.B. Dear (Oxford: Oxford University Press, 2001), 38. 34. On this issue, see Antoon De Baets, Responsible History (New York-Oxford: Berghahn, 2010), especially 72-90; and Nathalie Mallet-Poujol, "Diffamation et 'vérité historique'" Recueil Dalloz (2000): jur., 226-31.

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(Section 2). Then we will examine the first category of cases, namely the criminal and civil proceedings dealing with the facts that occurred in Rome on March 23-24, 1944 (Sections 3-7). Finally, our attention will be focused on the second category of controversies, those concerning the discourses about the massacre, and the massacre's causes and effects (Sections 8-1 1). In the final section, we will try to generalize the findings that arise out of our empirical analysis (Section 12).

2. The Historical Background of the Ardeatine Caves Massacre

On July 19, 1943, Allied aircraft bombed Rome for the first time. The main target was the railway infrastructure, but the bombing caused approximately 3000 civilian casualties. On July 25, the "Grand Council" of the Fascist party deposed Dictator Benito Mussolini. A few days later, on August 14, Rome was unilaterally declared (by the new Italian government) an "open city," meaning that it was without military defenses. This declaration was not accepted by the Allies, however, who, in the following months, repeatedly bombed infrastructures and industries around the city.35 On September 3 1943, Italy signed a separate armistice with the Allies. The armistice was only made public on September 8. 36 Immediately, German troops advanced on and overcame weak resistance by a few Italian military corps that had not disbanded, and the Germans took control of the city. The consequences were similar to what had happened in the rest of Europe occupied by the Nazis. In October, the remaining members of the Jewish community, who had been progressively discriminated against under Fascist rule and deprived of political and civil rights, were first con- vinced by the Rome-based SS (and Gestapo) commander Col. Herbert Kappler to surrender all their gold and jewels. Once this had been done they were deported to concentration camps (October 16-18, 1943). Out of 1023 people, only a handful survived.

35. This fact would hypothetically have fallen under Article 25 of the Annex to the 1907 Hague Convention. "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited." For a historical overview see Umberto Gentiloni Silveri and Maddalena Carli, Bombardare Roma. Gli Alleati e la "città aperta" (1940-1944) (Bologna: il Mulino, 2007), 187-202. 36. Giorgio Rochat, "L'armistizio dell' 8 settembre 1943," in Dizionario della resistenza, vol. I, Storia e geografia della liberazione, ed. Enzo Collotti, Renato Sandri and Frediano Sessi (Turin: Einaudi, 2000), 32-40.

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In the 9 months of German occupation (Gen. Clark's Allied troops entered Rome on June 5, 1944), no major military incidents occurred in the city. However there was much resistance activity, mostly in the form of propaganda and sabotage.37 The Nazis, together with the remnants of the Fascist militia, engaged in a manhunt: capturing, torturing, deporting, and executing many Resistance members. On March 23, 1944, members of the central unit of "Gruppi di Azione Patriottica" (hereafter GAP), a resistance group affiliated with the Communist Party, prepared and put into action a bomb attack against German troops in Rome.38 On that afternoon, explosives hidden in some garbage cans on downtown via Rasella were detonated, destroying a patrol composed of policemen - mainly from Italian South-Tyrol - of the Eleventh Company, Third Battalion, Ordnungspolizeiregiment "Bozen." After the explosion, partisan commandos attacked the survivors with machine guns and hand grenades. Thirty-two soldiers were killed; one died shortly after, and another nine died a few days later. The German reaction was immediate. The military commander of the city of Rome, Gen. Mälzer, after consultations with Gen. Mackensen, Gen. Harster, and Field Marshal Kesselring, ordered reprisals: ten Italians for each German casualty. It is debated whether the Germans had requested that those responsible for the attack take responsibility in order to avoid the reprisal; however, the most recent analyses by historians, supported by official documents and oral witnesses, have ruled this out.39 What is known, is that 21 hours after the attack, the German commander put into action the reprisal plan: 335 people, held by the German and Italian authorities on account of suspicion of belonging to the Resistance, as well as a few surviving Jews and a few people arrested immediately after the attack in the surroundings of via Rasella, were removed from jail and brought to a quarry near Rome: the Ardeatine Caves. There, they were executed. Subsequently, the Germans loaded and detonated explosives in the quarry, causing it to collapse in order to cover up the corpses. The corpses were not recovered until the liberation

37. See Gabriele Ranzato, "Roma," in Dizionario della resistenza, 412-23. 38. For a detailed account of the partisan attack on via Rasella, see Joachim Staroń, Fosse Ardeatine und Marzabotto : Deutsche Kriegsverbrechen und Resistenza (Paderborn, München, Wien, and Zürich: Schöningh, 2002), 35-77; Steffen Prauser, "Mord in Rom? Der Anschlag in der Via Rasella und die deutsche Vergeltung in den Fosse Ardeatine im März 1944," Vierteljahrshefte fiir Zeitgeschichte 50 (2002): 269, 279-86; Ranzato, "Roma," 420; and Roberto Battaglia, Storia della Resistenza Italiana (Turin: Einaudi, 1964), 224. 39. See below, note 90.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial " Truth " and Historical " Truth " 853 of Rome. The officer in charge of the execution was Col. Kappler, who commanded approximately seventy-three SS officers and soldiers.40 Very little was actually known of the mass execution other than a short communiqué stating that ten "Badoglio-Communists" had been executed for each of the thirty-two German soldiers killed. Col. Kappler and his aides left Rome before the arrival of the Allies, and were deployed to other war fronts. However there was an immediate outcry after the Ardeatine Caves massacre, and considerable controversy. This is because, despite the horrors of the Second World War and the fact that the war on Italian soil lasted nearly 2 years, there were only two other episodes of mass executions in Italy: 770 civilians (mostly women, children and elderly persons) were killed in the summer/autumn of 1944 at Marzabotto on the Apennine front, and 560 victims (of the same categories of people) suffered the same fate at Sant'Anna di Stazzema.41

3. Judging the Facts: Criminal and Civil Trials

After the end of the war and the Nuremberg trials, the newly born Italian Republic also prosecuted German officers and soldiers accused of war crimes. Among them were Col. Kappler along with two officers and three subordinates who had taken part in the Ardeatine Caves executions. There were two main trials concerning the Ardeatine Caves massacre:

1. The first, held in its various instances between 1948 and 1952, was against Col. Kappler and five other former SS members. In this trial, Kappler was also accused of having extorted 50 kg of gold from the Jewish community. 2. The second prosecution, held 50 years later, between 1996 and 1998, was against two SS officers, Karl Hass and Erich Priebke.

One must also consider, however, the actions, both criminal and civil, brought between 1949 and 1998 by the parents of some of the victims of the Ardeatine Caves massacre against the members of the partisan commando unit that conducted the operation on via Rasella.

40. For the details see Robert Katz, Roma città aperta. Settembre 1943 - Giugno 1944 , (Milan: Il Saggiatore, 2009), 282. 41. The Sant'Anna massacre is in the background of Spike Lee's Miracle at Sant'Anna (2008). There were also other terrible mass executions, such as Civitella Valdichiana (115 victims), but these were not of the same scale as Marzabotto and Sant'Anna di Stazzema. See, generally, Luca Baldissara and Paolo Pezzino, Il massacro. Guerra ai civili a Monte Sole (Bologna: il Mulino, 2009); Lutz Klinkhammer, Stragi naziste in Italia. La guerra contro i civili 1943-1944 (Rome: Donzelli, 1997); and Staron, Fosse Ardeatine und Marzabotto , 12-13.

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4, The Kappler Trial

The first thing to note is that the main trials were conducted before military courts, composed of senior officers. The judges in what would be the first trial had been variously deployed during the Second World War, originally as part of the allegiance with German troops, and afterwards in the army of liberated Italy against the Germans. In both trials, the legal framework was, for the most part, the wartime Military Penal Code.42 A second factor that should be recognized is that the extremely detailed reconstruction of the facts that was put forth in the trial - condensed into hundreds of written pages - had as its aim the establishment (or not) of the responsibility of the accused. Therefore, it was necessarily filtered through a legal sieve. The records of the various trials undoubtedly represented the essential materials necessary for a historical reconstruction of the events of via Rasella and the Ardeatine Caves. Although many new facts were uncovered later, the trials are seen as having had a high degree of authenticity, especially if one compares the versions of events provided by the accused with those offered by witnesses for the prosecution. The trial also sheds light on a number of surrounding facts, and other people who had been involved at various levels. Third, and more specifically, certain circumstances that might appear quite marginal in a historical reconstruction obtain central importance in the context of a trial, as will be discussed. For example, this is clear when one considers Col. Kappler's defense: the execution of 330 persons was a legitimate act of reprisal. The execution of a further five persons was the result of a mistake in the prisoner list, and, therefore, lacked criminal intent. Therefore the Court - in the first trial - was forced to consider whether the Germans could legitimately claim a right to retaliation. There were two options: either the via Rasella attack was an act committed by belligerents (and in that case there might be a right of reprisal), or it was committed by civilians (and in that case there might be a right to impose collective sanctions). The obvious issue was the legal characterization of the nature of the resistance forces and of its acts. The Court of first instance concluded by virtue of Article 1 of the Annex to the 1907 Hague Convention that attacking commandos could not be considered belligerents, inasmuch as they did not "have a fixed distinctive emblem recognizable at a distance," did not "carry arms openly," and did not "conduct their operations in accordance

42. See, generally, Ettore Gallo, "Diritto e legislazione di guerra," in Dizionario della resistenza, 338.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial " Truth " and Historical " Truth " 855 with the laws and customs of war."43 The act, therefore, was not militarily legitimate. At the same time, the actions of the resistance movement were directly referable to the Italian state (partisan organizations had important and official coordination with the state). The Germans, therefore, were entitled to exercise a right of reprisal. However, the Court came to the conclusion that this reprisal right was used in a disproportionate way,44 and, further, could not be considered a legitimate act of collective sanction under Article 50 of the same Annex, as the victims had played no part in the Via Rasella attack.45 Therefore the executions were not justified under international law. At this point, Col. Kappler's individual position came under scrutiny. His second line of defense was that in ordering the execution he had obeyed the orders of his commanding officers, starting with Adolf Hitler at the top, and down the military hierarchy (Gens. Kesselring and von Mackensen) to his direct superior, Gen. Mälzer.46 In response to this argument, the Court of first instance concluded that, although in abstracto an illegitimate order could have been challenged, when one took into consideration the rigid discipline of the SS corps, there was not sufficient evidence that Col. Kappler had acted with the knowledge and willfulness that he was executing an illegitimate order.47 Therefore, he could not be held liable for the death of 320 of the 335 persons killed at the Ardeatine Caves.

43. Military Trib. Rome, 20-7-1948, Rassegna di diritto pubblico 4 (1949): II, 170, with a comment by Francesco Capotorti, "Qualificazione giuridica dell'eccidio delle Fosse Ardeatine." 44. See Philip Sutter, "The Continuing Role for Belligerent Reprisals," Journal of Conflict & Security Law 13 (2008): 93-122, especially 99. 45. "No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible." 46. Generals Kesselring, von Mackensen, and Mälzer were all sentenced to death by Allied war crimes tribunals, the last two specifically for having ordered the Ardeatine Caves massacre (see Staron, Fosse Ardeatine und Marza botto, 132, 148). The verdict was commuted to life imprisonment. Gen. Mälzer died of natural causes in 1952 while serving the sentence. The other two generals were released that same year (see Pier Paolo Rivello, "Lacune e incertezze negli orientamenti processuali sui crimini nazifascisti," in Giudicare e punire. I processi per crimini di guerra tra diritto e politica, ed. Luca Baldissara and Paolo Pezzino [Naples: L'Ancora del Mediterraneo, 2005], 259) and died in their own beds, without ever disavowing their full adherence to Nazism and its abject and destructive policies. 47. One can observe a clear inconsistency on this point. The decision notes that the des- ignation of Col. Kappler as executor of the reprisal order came after the head of the battalion, Maj. Döbbrick, whose battalion the attacked German patrol was part of, excused himself from the task, arguing that his men were not trained to conduct this kind of operation. Also, when Corp. Amonn, one of the soldiers entrusted with the execution, entered the Caves and saw the corpses lying on the ground, he was so horrified that he fainted (see Katz, Roma città aperta, 290). There were, therefore, ways to not obey the order.

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A different solution was adopted by the Court concerning the ten victims that Col. Kappler added to the list after having learned of the death of another German soldier. The order he had received was to execute 320 persons. The execution of a further ten was his own initiative, for which he did not have the same authority. Col. Kappler was also held responsible for the execution of the remaining five people that make up the total, because the "mistake" made by his subordinate was the result of Kappler' s clear inten- tion to put an end to the matter without taking the least precaution, therefore showing a reckless disregard. The outcome was that Col. Kappler was sentenced to life imprisonment • (also for the illegal seizure of gold from the Jewish community).48 His codefendants Maj. Domizlaff, Capt. Clemens, and Sgts. Quapp, Schütze, and Wiedner were acquitted because they had acted under the orders of their commanding officer. This decision was upheld on appeal, and became res judicata*9

5. The Priebke Trial

Although at least seventy officers and soldiers had been involved in the Ardeatine Caves massacre, only six of them were brought to trial in 1948. The remainder could not be found, and it was assumed that they had died in subsequent war hostilities. One can easily understand how extremely difficult a task it was to find people and serve procedural legal summonses on them in the aftermath of the devastating war, and with millions of people displaced, especially in Central Europe. Attempts at

48. Kappler could not be sentenced to death because the Italian Military Penal Code of 1941 (article 185) punished acts of violence against civilians committed by a military force as a "common" murder and therefore with the sanctions contained in the Penal Code. The head of the Fascist police in Rome, Pietro Caruso, who, under Kappler' s orders, had drafted a list of fifty prisoners who were eventually executed at the Ardeatine Caves was, instead, sentenced to death in 1944 by a special tribunal (see below, note 84). 49. Sup. Mil. Trib., 25-10-1952, Kappler, Rivista di diritto internazionale 36 (1953): 193, with a comment by Roberto Ago; Court of Cassation, S.U., 19-12-1953, no. 26, Kappler , http://www.difesa.it/GiustiziaMilitare/RassegnaGM/Processi/Kappler_Herbert/Pagine/08sen tenza26.aspx (September 8, 2012). It is worth remembering that in 1976, after considerable pressure from the German government, Col. Kappler was released for medical reasons (cancer) but confined in a military hospital in Rome. On the night between August 14 and August 15, 1977, his wife smuggled him out of the hospital in a large suitcase and drove him to Germany, were he was publicly acclaimed by former Nazi supporters. The German authorities refused to extradite him, arguing that as a "prisoner of war" (not a war criminal) Kappler had exercised his right to escape. He eventually died in 1978 as a result of his cancer. For a detailed account of Kappler' s escape, see Felix Nikolaus Bohr, "Flucht aus Rom. Das spektakuläre Ende des Talles Kappler' im August 1977," Vierteljahrshefte für Zeitgeschichte 60 (2012): 111-41.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial " Truth " and Historical " Truth " 857 establishing the location of those who were not found had to be abandoned, and no further searches were made.50 Also, an attitude played a role in the reluctance to prosecute, and was comprehensible in light of the Kappler verdict: his subordinates had all been acquitted and, therefore, it was reasonable to expect that a similar verdict would have resulted if other subordinates had been tried.51 Times changed. In May 1994, the Simon Wiesenthal Center found out that one of the officers involved in the massacre, Capt. Erich Priebke, was living undisturbed in the town of Bariloche, Argentina, where he had fled, together with many other war criminals, thanks to a strong network of sympathizers, including German religious organizations. After a lengthy process, Priebke was extradited to Italy and tried in front of the same Italian military court that had decided the Kappler case. The first issue for us to consider, concerns the competency of the military tribunal. The relatives of the seventy-five Jewish victims insisted that Priebke be tried for genocide in front of an ordinary court, which was the basic pro- posal underlying the request for extradition that had been granted by the Argentinean authorities. The judge for the preliminary hearing expressed the view that as the crime of genocide had not existed in Italy until 1967, when it was introduced with the ratification of the 1948 New York Convention, such a charge could not be retroactively applied to facts dating back to 1944. This decision is in sharp contrast with the principle that had been laid down in the Nuremberg trials. However in none of the subsequent - and extremely controversial - phases of the trial was the jurisdiction of the military courts rejected, and, therefore, Priebke was charged with the same offenses as Col. Kappler had been: violence against civilians, punishable by Article 185 of the wartime Military Penal Code. Quite predictably, Priebke's defense was extremely simple: he had acted exactly as the other codefendants in the Kappler trial had acted; namely, under orders from his commanding officer. The second line of defense

50. Behind the weak prosecution of Nazi crimes in postwar Italy also lay political reasons. These were related, on the one hand, to the need to preserve good relationships with the new German state, and, on the other hand, to fear of a massive prosecution of Italian war criminals abroad. On this, see Filippo Focardi, Criminali di Guerra in libertà. Un accordo seg- reto tra Italia e Germania federale, 1949-1955, (Rome: Carocci, 2008), 35-40; Gerald Steinacher, "Das Massaker der Fosse Ardeatine und die Täterverfolgung. Deutsch-italienische Störfalle von Kappler bis Priebke," in Italien, Österreich und die Bundesrepublik Deutschland in Europa. Ein Dreiecksverhältnis in seinen wechselseitigen Beziehungen und Wahrnehmungen von 1945/49 bis zur Gegenwart, ed. Michael Gehler and Maddalena Guiotto (Wien, Cologne and Weimar: Böhlau, 2012), 296-301. 51. See above, Section 4, discussing the decisions of Military Trib. Rome, 20-7-1968, and Sup. Mil. Trib., 25-10-1952.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 858 Law and History Review , November 2013 was that the action against Priebke was barred by the statute of limitations (20 years after the fact). The decisions rendered in this trial relied heavily on the facts as determined in the earlier Kappler trial. However, in order to establish the exact role of Capt. Priebke, considerable effort was made to discover exactly how the lists were compiled of those who were to be executed (Priebke was in charge of the lists at the Ardeatine Caves, and crossed the names of the victims off as they were taken down into the Caves). The first decision (August 1, 1996)52 surveyed in detail the claimed status of Rome as an "open city" at the time, and came to the conclusion that this unilateral declaration made by the Italian government was neither accepted, nor binding on the Allies or the Germans, who, therefore, were entitled to quarter troops there. The first decision came to two further findings of fact: the German Army had publicly announced as a general rule for all the Western occupied countries a ratio of ten to one in the event of reprisals for actions taken against German troops by resistance groups. However, regarding the via Rasella attack, it had been ruled out that the Germans had first asked the authors of the attack to surrender in order to avoid the implementation of the reprisal. Coming to the more juridical aspects of the judgment, the first decision significantly differed from that of Kappler in that:

1. The "mistake" that was made in executing more than 330 prisoners was a criminal offense directly referable to Capt. Priebke, who had been checking the lists, and, therefore, had been perfectly aware of the fact that those persons were going to be executed. 2. Capt. Priebke could not hide behind the defense that he was following the orders of his commanding officer.53 The reprisal obviously violated any sense of humanity, because it was so disproportionate and because the victims bore no relationship whatsoever to the partisans' attack. Any ordinary person in Capt. Priebke 's shoes would have realized this, and the fact that Capt. Priebke was a fanatical SS officer could not be used as a justification for disregarding the rule of reasonable conduct. 3. Capt. Priebke, contrary to his assertions, not only should have refused to obey such an inhuman order, but could have done so without great risk. In this regard, it is interesting to note that the military prosecutor presented as an expert witness the German officer who at the time of trial had been in charge of the SS Archives, and that this officer declared

52. Military Trib. Rome, 1-8-1996, Priebke, Cassazione penale 37 (1997): 251. 53. See, on this issue, Giorgio Sacerdoti, "A proposito del caso Priebke : la responsabilità per l'esecuzione di ordini illegittimi costituenti crimini di guerra," Rivista di diritto internazionale 80 (1997): 130.

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that none of the SS members who had disobeyed similar orders had risked their lives by so doing. Rather, they had merely been subject to administrative sanctions such as removal from office, transfer to the front, or loss of career opportunities. Priebke, therefore, had a clear opportunity to personally avoid executing the criminal order he had received via Kappler. 4. Capt. Priebke was, therefore, responsible for the murder of all 335 victims and was, therefore, in abstracto , subject to the punishment of a life sentence. However, in concreto , some mitigating circumstances had to be taken into account. These included having obeyed an order - albeit illegitimate - from his commanding officer, and having after the war conducted his life in a way that was at odds with his previous Nazi affiliations. Factoring in these circumstances, a maximum sentence of 21 years in prison was warranted, and, therefore, applying the rules on prescription, the action was barred after 1966. Therefore, Capt. Priebke was acquitted and released. 5. The principle that crimes against humanity are never time barred could not be applied in order to avoid prescription in this case, because, as mentioned earlier, the law against genocide had been introduced after these facts had occurred.

The Priebke case decision provoked a public commotion.54 To put it in rather blunt terms, Priebke had been already condemned as a Nazi by history and by public opinion, and the military tribunal should have delivered a decision in conformity with such extrajudicial conclusions. In the end, however, the decision was short lived. On October 27, 1996, the Italian Court of Cassation ("Corte di Cassazione ") quashed the decision on procedural grounds.55 Prior to Priebke's trial in the court of first instance, the head judge who had been assigned to preside over the military tribunal hearing it, had criticized the action brought by the military prosecutor, expressing the view that Priebke should not be held crim- inally liable and that there was little sense digging up cases from more than 50 years earlier in order to prosecute an elderly man. The judge was, therefore, disqualified by the high court, and a completely new trial was ordered. This was promptly held, and, in addition to Capt. Priebke, another officer was added who had participated in the massacre: Maj. Karl Hass.56 On

54. See Steinacher, "Das Massaker der Fosse Ardeatine und die Täterverfolgung," 308-9. 55. Court of Cassation, 15-10-1996, Priebke, Foro italiano 120 (1997): II, 5. 56. What is astonishing, and revealing in terms of the lack of any real search for those involved in the Ardeatine Caves massacre, is that Maj. Hass, after the war, was recruited by United States intelligence agencies and operated in Italy under a false name. Subsequently, he returned using his real name. In 1969 he even played the role of a Nazi officer in the movie "La caduta degli dei" ("The Damned") by Luchino Visconti (see

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July 22, 1997 a new decision was rendered by the military tribunal of first instance.57 The only factual difference from the previous decision concerns the role of Maj. Hass: although he was at the murder site and personally shot at least one prisoner, his role was quite different from that of Capt. Priebke. He was involved mostly in intelligence activities against resistance movements, and, in that position, had considerable indirect contact with resistance leaders.58 From a legal point of view, this time the tribunal avoided the time limit issue through highly technical reasoning: according to the Italian Penal Code there is no time limit for crimes in abstracto punishable by a life sentence, even if the facts of the case would bring about - through mitigating circumstances - a different, and shorter, sentence. Conscious of this highly debatable principle that was affirmed (generally time limits are applied on an in concreto basis), the Court argued that according to customary international law, war crimes were no longer subject to time bar since the issu- ance of the 1880 Oxford "The Laws of War on Land" Manual. Therefore, the law applicable to the Ardeatine Caves massacre did not invoke prescription, and the existing provisions of the Italian Penal Code were to be construed in an internationally oriented way. The final verdict was a 15 year sentence for Capt. Priebke and a 10 year sentence for Maj. Hass. However, the Court applied a limited amnesty granted in 1996, which involved a number of crimes falling under the Military Penal Code. This resulted in deleting 10 years of imprisonment from the sentences. Maj. Hass was, therefore, released. Capt. Priebke still had 5 years to serve. This decision again caused public outrage, especially in light of its practical consequences: for Hass, only a few months of detention awaiting trial; for Priebke, only a few years behind bars. This decision was appealed both by the two ex-German officers and by the military prosecutor. The Military Court of Appeals, in its subsequent decision of March 7, 1998, came to some important conclusions in its

Steinacher, "Das Massaker der Fosse Ardeatine und die Täterverfolgung," 311). When he was arrested in 1996 he had been living near Milan for at least 20 years and his name was in the telephone directory. 57. Military Trib. Rome, 22-7-1997, Hass, Priebke, Diritto penale e processo 3 (1997): 1510. 58. One of Hass' defense witnesses was the eminent professor of criminal law and Minister of Justice Giuliano Vassalli, at that time a young member of the Resistance held by the Gestapo. Hass managed to postpone Vassalli's execution, which had been ordered by Col. Kappler; eventually Vassalli, through the intercession of Pope Pius XII, was set free on June 2, 1944 (see Katz, Roma città aperta, 352).

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial "Truth" and Historical " Truth " 861 interpretation of the facts, although the facts themselves were, in sub- stance, always the same.59 The new interpretations included:

1 . Because of the inconsistency of a verdict against Col. Kappler of responsibility for only 15 killings, while there was a verdict of responsibility for 335 killings for his subordinates, the new judgment launched a headlong critique of the 1948 decision. This move, although highly debatable from a procedural point of view, as it defied the principle of res judicata, was without cost from a practical point of view: Kappler had died 20 years earlier, and it was improbable that a new criminal action would be started against his subordinates who had previously been acquitted. 2. The Court of Appeals denied granting any mitigating circumstances to Priebke and Hass, as their actions were the expression of "unparalleled evil." They were, therefore, sentenced to life imprisonment. This also allowed the judgment to avoid the slippery issue of statutes of limitations in abstracto versus in concreto , and did not require the application of any limited amnesty, as it could not be used against life sentences.

Next, the Italian Court of Cassation (decision of November 16, 1998) rejected a subsequent appeal by the two German officers on the basis of strictly formal arguments, which do not seem relevant here.60 Priebke and Hass were granted house detention in 1998. Hass died, at 92 years of age, in 2004 in a rest house. Priebke was granted parole in 2007, and as of the date of this writing, is still alive, and has celebrated his 100th birthday.

6. The Trials Against the Authors of the via Rasella Attack

Although there has never been any doubt concerning the criminal nature of the Ardeatine Caves massacre, there has been considerable controversy about the nature of the via Rasella attack, which led to the German reprisal. This controversy exists across two different, yet connected, levels: historiographie and judicial. The historiographie debate has been occupied mostly with "revisionist" studies aimed at denying legitimacy to the resistance movement, which in 1945 spearheaded the move toward a democratic and anti-Fascist republic.61 The judicial debate is related to the various lawsuits launched by relatives of the Italian victims of the via Rasella attack and of the Ardeatine Caves massacre.

59. Military Court App. 7-3-1998, Hass, Priebke, Diritto penale e processo 4 (1998): 1122. 60. Court of Cassation, 16-11-1998, Hass, Priebke, Foro italiano 122 (1999): II, 273. 61. See, generally, Filippo Focardi, La guerra della memoria: la Resistenza nel dibattito politico italiano dal 1945 ad oggi (Rome-Bari: Laterza, 2005), 19-32.

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The debate on this latter level started immediately after the war, even before the final decision had been rendered on the Kappler case. In 1949, the relatives of several of the Ardeatine Caves victims brought a civil suit against the actual perpetrators of the via Rasella attack, as well as against the leaders of the resistance movement in Rome who, purport- edly, had authorized this attack. They argued that the partisan attack was not only unlawful, but also unreasonable, and that it caused the German reprisal and the death of so many victims. The claim was highly emotional: on one side were the relatives of the innocent victims of the Nazi fury, and on the other side were the heroes of the resistance movement, many of whom were already members of the democratic Parliament, and one of whom (Sandro Pertini) would many years later become president of the Republic.62 The basis for the claim was the statement contained in the 1948 Kappler case decision, which had characterized the via Rasella attack as an illegitimate act of war committed by persons who could not be considered as belligerents. The commandos had operated despite the fact that the head of the Italian military forces, who was operating incognito in Rome, had repeatedly given instructions not to attack the German forces within the city, because this would lead - as it actually did - to severe reprisals. The members of the commando unit and their political inciters had, therefore, acted in violation both of the Military Penal Code, and of the general principle of neminem laedere , through their reckless disregard for the fore- seeable consequences of their action and its direct causal link with the Ardeatine Caves massacre. The decision in the trial of first instance (Rome civil court, June 9, 1950) rejected this claim on the basis that, after the war, members of the resistance had been assimilated to the Armed Forces.63 In particular, the decision was grounded on Decree no. 194 of 1945, which stated that "The acts of sabotage, the requisitions, and every other action by the patri- ots in their fight against the Germans and the Fascists during the period of enemy occupation are considered war actions and therefore are not punishable at law. This provision applies to the military corps under the command

62. Also among the defendants in this case was Franco Calamandrei, member of the partisan commando unit and son of the distinguished jurist Piero Calamandrei. On the emotional atmosphere surrounding this trial, see Franco Cipriani, "Piero e Franco Calamandrei tra via Rasella e le Fosse Ardeatine," Clio 45 (2009): 65; Carlo Galante Garrone, "Via Rasella davanti ai giudici," in Priebke e il massacre delle Fosse Ardeatine, 51-56; and Focardi, La guerra della memoria , 28. 63. Court of Rome, 9-6-1950, Giurisprudenza italiana 102 (1950): I, 2, 577, with a comment by Domenico Riccardo Peretti Griva, "L'attentato di via Rasella e le responsabilità per l'eccidio delle Fosse Ardeatine."

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial "Truth " and Historical " Truth " 863 of the National Liberation Committee and to all other citizens that have aided them or, under their order, participated in operations fostering their success." The judgment took into account the statement contained in the first Kappler decision, which characterized the attack on via Rasella as an illegitimate act of war because it did not meet the criteria set by the 1907 Hague Convention. However, the Court stated that whereas the Convention was binding with regards to the relationship between states, with regards to domestic jurisdiction and controversies between private parties, Italian law (and specifically Decree no. 194/45) prevailed. The decision also tried to separate clearly the legal sphere from that of historical or moral judgment. In particular, it stated that although the GAP groups (including the commandos in via Rasella) were distinguishable from other resistance groups by the terrorist character of their actions (" car- attere anche terroristico delle organizzazioni 'gappiste "'), it was not up to the Court to establish whether these groups should have considered beforehand the consequences, namely German reprisals in response to their actions, and whether they should have surrendered to the Germans, acknowledging their responsibility, in order to attempt to avoid the reprisal. This decision was upheld on appeal and by further judgment in the Court of Cassation.64 The latter, in its decision of July 19, 1957, no. 3053, confirmed all of the reasoning of the judgment of first instance, stres- sing that from the point of view of domestic law, the via Rasella attack could not be considered an illegitimate act in violation of the (nonexistent) status of Rome as an "open city." The kind of attack executed in via Rasella was, on the contrary, the only form of action possible, considering the disproportion between the might of the German army and the scarce number of resistance forces, ill-equipped and scarcely armed, with hardly any training and no logistical support. Therefore, the attack being a legitimate war action, there could be no responsibility for its consequences, which had themselves been declared an illegal act of reprisal. Nearly 50 years later, a new action - this time criminal - was brought against the surviving members of the via Rasella commando unit through a private criminal complaint (provided for under Italian law) filed by the relatives of the two Italian civilian accidental victims of the attack. The judge to whom the inquiry had been entrusted set aside the claim on the basis that the attack was to be considered a patriotic act against the German occupation, and, therefore, fell within the exemption set by Decree no. 96 of 1944.65 However, before rendering the decision, the

64. Court of Cassation, S.U., 19-7-1957, n. 3053, Foro italiano 80 (1957): I, 1398. 65. Decision by the Rome judge for the preliminary hearing, 16-4-1998.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 864 Law and History Review, November 2013 judge made further inquiries concerning the deaths of the two civilian victims. In particular, he investigated one of the recurrent accusations against the commandos; namely, that they had planned the attack as part of a general strategy within the Italian Communist Party to delegitimize the National Liberation Committee, which had a much more cautious approach, by presenting it with a fait accompli. In his decision, the judge ruled out consideration of the attack as a legitimate act of war falling under Decree no. 194 of 1945 (which had been the basis of the 1950 and 1957 decisions by the civil courts in the wrongful death cases). The attack was, instead, characterized as having been of a terrorist nature, and, therefore, not exempted from liability. However, like many other acts of violence committed in those times, it fell under the amnesty established by the aforementioned Decree no. 96 of 1944. The decision concluded by expressing a position similar to that found in the civil cases: "After all that has transpired, one could ask whether what happened on via Rasella on March 23 1994 was really necessary or even merely appropriate considering the foreseeability of a harsh German reprisal. These questions, which have been put insistently by the private parties, may legitimately enter an ethical, political and historical debate, but cannot have any legal relevance to this trial. Nor can the judge express his opinion on issues which do not pertain to the legal problem that is in front of him." This decision was appealed by members of the commando unit, who saw in it a rejection of the defining meaning of their lives. The decision was entirely reversed in terms of its reasoning by the Court of Cassation.66 The attack on via Rasella was a legitimate act of war - and not a terrorist attack- and, therefore, fell entirely within the provisions of Decree no. 194 of 1945. No legal consequence, whether civil or criminal, could, therefore, ensue from it.67

66. Court of Cassation, 23-2-1999, no. 1560, Foro italiano 122 (1999): II, 273. 67. One should note here the caution that is required in using judicial materials as sources of historical fact finding. The decision just cited states, at para. 6, as an argument to quash the decision of the judge of the preliminary hearing, that the 1952 final decision in the Kappler case (see above, note 49) had reversed the prior decisions as regards the legitimacy, from a ius in bello perspective, of the via Rasella attack. The 1999 decision states, literally: "The Supreme Military Court, with its decision 25-10-1952, n. 171 1 ( Rassegna della Giustizia Militare , 83) has overturned this thesis, declaring the reprisal unlawful in relation to the lawfulness of the Italian action: 4 Via Rasella, in light of the norms of international law, must be evaluated with rigorous coherence. It cannot be characterized otherwise than an act of hostility against the occupation armed forces, committed by persons who possessed the status of legitimate belligerents.'" If one consults the 1952 decision as printed in the law review (published by the Italian Ministry of Defense in a special issue in 1996 devoted entirely to war crimes trials) one finds the phrase as transcribed. But when one goes to verify the text of the decision by examining it as published in many law reviews in the year 1953,

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7. Some Observations Concerning the via Rasella/Ardeatine Caves Trials

The reasons why the Ardeatine Caves decisions are important to the debate on the relationship between historical truth and judicial truth are manifold. They include:

1 . From an empirical point of view, we have a single set of facts - concen- trated in the space of 2 days (March 23 and 24, 1944) - which involves several persons. These facts are not - substantially - challenged and do not change throughout the years. What changes is the judicial interpretation of those facts. 2. Although there has been a torrent of first-hand accounts and of historical publications concerning the Ardeatine Caves massacre, any contemporary analysis must necessarily refer to the records of the first trial ( 1 948- 1952).68 Through the years, a number of additional details have been added, and the credibility of some accounts, especially of the accused, has been questioned. On the whole, however, it would be difficult at

one realizes that its sense is opposite, because the 1996 reprint omitted a "not." The correct phrase - completely consistent with the context of the decision - is, therefore: "committed by persons who did not possess the status of legitimate belligerents" [emphasis supplied]. To make things even more complicated, for unknown reasons the whole phrase was omitted in the on line text of the 1999 decision published on the Italian Ministry of Defense web site, http://www.difesa.it/GiustiziaMilitare/RassegnaGM/Processi/Priebke_Erich/Pagine/ 17 23 -02-99. aspx (September 8, 2012). After notification by the authors of this article, it was eventually corrected in January 2012. The mistaken quote in the 1996 decision has been repeatedly used in many writings and public debates as the judicial seal on the historical truth of the via Rasella attack: see ex multis Luigi Miragliuolo, "I fascisti fornirono perfino scorte armate ai treni per Auschwitz," http://www.storiaxxisecolo.it/deportazione/ deportazionefascismoll.htm (September 8, 2012); Raimondo Ricci, "Processo alle stragi naziste? Il caso ligure. I fascicoli occultati e le illegittime archiviazioni," http://www. istitutoresistenza-ge.it/Pubblicazioni/ricci.html (September 8, 2012); http://www.finanzaon- line.com/forum/arena-politica/ 1 23 1 494-priebke-bisogna-avere-pieta-per-chi-non-e-ha-mai- avuta-8.html (September 8, 2012); and http://forum.axishistory.com/viewtopic.php? f=6&t=143733 (September 8, 2012). All of this helps us to understand how much the historical debate regarding Via Rasella remains a heated topic in Italy, more than 65 years after the fact. For an interesting insight into how the extremely detailed entry on via Rasella in Wikipedia (http://it.wikipedia.org/wiki/Fatti_di_via_Rasella [September 8, 2012]) was debated, see http://www.territorioscuola.com/wikipedia/?title=Discussione:Attentato_di_ via Rasella (September 8, 2012). For a literary account of how history can be changed by the insertion or the omission of a "not" see José Saramago' s novel, The History of the Siege of Lisbon (New York: Harcourt Brace, 1996). 68. See, for example, Staron, Fosse Ardeatine und Marzabotto, 22-27 , 37; Prauser, "Mord in Rom?," 269-301; and Klinkhammer, Stragi naziste in Italia , 4-5.

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Table 1. Outcome of criminal trials

Accused Year of Trial Sentence Practical Outcome

Caruso 1944 Death Execution Kesselring 1945 Death 7 years of imprisonment Von Mackensen 1945 Death 7 years of imprisonment Mälzer 1945 Death 7 years of imprisonment Kappler 1948/52 Life 29 years of imprisonment Domizlaff 1948 Acquittal Clemens 1948 Acquittal Quapp 1948 Acquittal Schütze 1948 Acquittal Wiedner 1948 Acquittal Priebke 1996/98 Life 2 years of imprisonment and 8 years of house arrest Hass 1996/98 Life 2 years of imprisonment and 5 years of house arrest

this stage to suggest that there are still elements of the 2 day sequence of events that are unclear in the development of the case.69 3. There is an obvious inconsistency among the various judgments, as shown in Table 1. The above mentioned inconsistency, however, has to do with justice, not with history. It demonstrates that the courts may be reliable microhis- torians, but fail to provide a compelling, consistent view of the past because, for structural and procedural reasons, they do not always yield coherent decisions, between one court and another. 4. It is extremely difficult for different courts, with different rules, and sitting at different times, to render parallel decisions on the basis of the same facts. There is no single "judicial truth," but, rather, multiple case outcomes, which themselves become part of history. This is even more clear when comparing the decisions regarding the German war criminals with those concerning the members of the via Rasella commando unit. In the former cases, the assault at issue was not considered to be a legitimate act of war, in the latter cases it was. To paraphrase a famous common law expression, the 1907 Hague Convention could be used as a "shield" by the German defendants (who could legitimately claim a right to retaliation), but not as a "sword" by the Italian plaintiffs (who could not sue the

69. What is still an object of debate is the role that the Catholic Church, and Pope Pius XII, played in the case. Robert Katz' s book Death in Rome (New York: Macmillan, 1967) describes an attitude of inertia on the part of the Pope, whose intervention might have saved the victims. This reconstruction of events (entirely apart from its judicial scrutiny) has, however, been challenged (see below, note 117, sect. 11).

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perpetrators of the attack on via Rasella for violating the Convention and for the mass executions of civilians that occurred in response to it). 5. If "Truth" with a capital "T" cannot be expected from the courts, even less can - and should - it be expected from historians; nor can historians' research come to the same conclusions as those reached by courts. The Ardeatine Caves case is a classic example of this. Does it make sense for historians to only condemn Col. Kappler for having killed fifteen prisoners and extorted 50 kg of gold from the Jewish community, as the courts acquitted him of the killings of the other 320 victims, and he was not tried for the deportation of more than 1000 Roman Jews? And must historians' accounts also adhere to the judicial finding that the authors of the via Rasella attack should bear no legal consequence for it? 6. Although facts may remain unchanged, their perception in different historical periods can be extremely different. For example, it is very clear that "historical memory" of the Holocaust and of Nazi crimes had an enormous influence on the final outcome of the 1997-98 Ardeatine Caves trial. The 1996 decision was deemed irreconcilable with what was considered to be the historical truth. And the first 1997 decision was contrary to what was perceived as "just" in the world outside the courts. The Court of Appeal decision even went against res judicata , by posthumously establishing the liability of Col. Kappler for the killing of the 320 victims of which he had been, in his own trials, acquitted. If in the postwar defamation and privacy cases the attempt was to try to rewrite history through judicial decisions,70 in the Priebke case, there was an overt attempt to make the judicial outcome conform to historical judgment. Similarly, the Court of Cassation in its 1999 judgment concerning the terrorist nature of the via Rasella attack quashed the prior decision, and engaged in a detailed analysis of the facts and of their legal characterization, an operation that is highly debatable for a court of last resort. 7. How should the Ardeatine Caves case be legitimately synthesized in an academic history book? Can the condemned be named? Should reporting be limited to the result of the legal judgments? Is a historian bound by those decisions?

8. Judging the Discourses: Criminal and Civil Trials

All of the abovementioned controversies deal with civil and criminal responsibility for the facts of what happened at via Rasella and the Ardeatine Caves. A second set of cases remains to be considered. These are focused on the postwar discourses concerning the same events. Shortly after Italian Liberation, the Ardeatine Caves massacre attracted a huge amount of public attention and became an iconic symbol of the

70. See Giorgio Resta, Talking about History: A Comparative Analysis of Post-War Personality Rights Litigation in Europe, on file with the author.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 868 Law and History Review , November 2013 tragedies of the war and of the sufferings of the Italian population under German occupation.71 Various factors contributed to this: it was the only mass execution of civilians to have happened in a metropolitan urban context in Europe, and in a country's capital (unilaterally declared an "open city");72 unlike other Second World War -era massacres, this one was characterized by an extensive heterogeneity of the victims, who hailed from all over Italy, and from all social classes, belonged to different ethnic groups, and held a diversity of political orientations (there were Monarchists, Fascists, Communists, Socialists, Liberals, Christian Democrats, and even a priest);73 it happened in response to a bloody partisan attack, which was never fully supported either by the whole spectrum of political forces engaged in the war against the German occupation, or by the Roman citizenry (and even less by the ecclesiastical authorities).74 The cruelty of the massacre took firm root in the collective memory of Romans, and this was a main factor leading to the tragic death of Donato Carretta, former director of the Roman prison of Regina Coeli, who was the star prosecution witness at the trial of Police Chief Caruso.75 During Caruso's trial, when Carretta was recognized by the crowd, he was dragged from the courtroom and horribly beaten to death by the frenzied mob (on September 18, 1944).76 This episode, as well as other momentous scenes of the Caruso trial, were filmed live by the director Luchino Visconti and shown in the documentary "Giorni di Gloria" ["Days of Glory"] by Mario Serandrei and Giuseppe De Santis (1945).77 The first decade after the Liberation represented the golden age of the Italian neorealist artistic movement, and many masterpieces by Luchino Visconti, Vittorio De Sica, and Roberto Rossellini - starting with "Roma città aperta" ["Rome,

71. See Rebecca Clifford, "The Limits of National Memory: Anti-Fascism, The Holocaust and the Fosse Ardeatine Memorial in 1990s Italy," Forum for Modem Language Studies 44 (2008): 128-39; and Michela Ponzani, "La memoria divisa intorno alla strage delle Fosse Ardeatine (parte prima)," Il secondo Risorgimento d'Italia 18 (2008): 27, 37. 72. See Portelli, "The Massacre at the Fosse Ardeatine," 31. 73. Ibid. 74. See Ponzani, "La memoria divisa intorno alla strage delle Fosse Ardeatine," 34. 75. See Gabriele Ranzato, Il linciaggio di Carretta - Roma 1944. Violenza politica e ordi- naria violenza (Milan: Il Saggiatore, 1997), 35; and Katz, Roma città aperta, 371. 76. Later it was found out that Carretta secretly helped the anti-Fascist activists detained in Regina Coeli and resisted the removal of the men on Caruso's list from the prison (Katz, Roma città aperta, 371). 77. This impressive documentary is freely accessible at: http://www.mediatecaroma.it/ mediatecaRoma/permalinkView/l/IL3000088764/Giorni_di_gloria.html (September 8, 2012).

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial " Truth " and Historical "Truth " 869 open city"] - dealt with episodes of the Resistance.78 The Ardeatine Caves massacre itself became the subject of various movies and documentaries, one of which gave rise to a legal controversy that is of importance to our analysis. .

9. The Caruso Case

In 1953, Romolo Morcellini directed a documentary called "Dieci anni della nostra vita" ["Ten years of our life"]. It was produced by the company Documento Film and it covered various incidents that had happened in Italy during the period 1943-1953. One of the topics was the Ardeatine Caves massacre. The documentary made basic mistakes in the exposition of the facts and in their interpretation. In particular, it openly stated that the list of the 320 persons to be executed in retaliation for the partisan attack had been compiled by the Italian Police Chief Pietro Caruso, who also added a further fifteen names to those originally listed. This was without question a false statement of fact, as Pietro Caruso's list actually com- prised "only" fifty individuals. Also, the documentary proposed an interpretation of the events that was seriously flawed, insofar as it presented Caruso as the only person responsible for the massacre, omitting even to mention the role of the German authorities. Caruso's relatives sued in tort, on the basis of a posthumous violation of the dignity and reputation of the prominent police officer.79 There were two critical issues: 1) whether the ignorance of the falsity of the defamatory statements constituted a valid excuse; and 2) whether reputational losses suffered by a person who brought permanent dishonor upon himself could be recovered. This case led to multiple judgments. First, a decision of the Court of Appeal of Rome (September 29, 1956) was quashed by the Court of Cassation on May 13, 1958; the case was tried again, but also a second

78. See Ermanno Taviani, "L'immagine della nazione nella cinematografia tra fascismo e repubblica," in 1945-1946. Le origini della Repubblica , ed. Giancarlo Monina (Soveria Mannelli: Rubbettino, 2007), 239-76; and Claudio Vercelli, "Cinema resistente: uno sguardo d'insieme sulla raffigurazione della Resistenza dal dopoguerra ad oggi," Asti contemporanea 1 1 (2005): 303-88. As regards the importance of film and other media in understanding the climate surrounding the postwar trials, see Staron, Fosse Ardeatine und Marzabotto , 24, 115. 79. Throughout the twentieth century, European law developed a far-reaching system of post mortem protection of privacy and personality interests, which is generally alien to common law jurisdictions, and particularly United States law: see Hannes Rosier, "Dignitarian Posthumous Personality Rights - An Analysis of U.S. and German Constitutional and Tort Law," Berkeley Journal of International Law 26 (2008): 153-205.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 870 Law and History Review , November 2013 decision of the Court of Appeal of Florence (March 11, 1960) was quashed by the Supreme Court in 1962.80 The principles affirmed by the Court of Cassation are nonetheless quite clear: on the one hand the Court ruled out any requirement that in order to be held liable for defamation, a person must have actual knowledge of the falsity of the allegations;81 on the other hand, it laid down a principle according to which even a person who has lost his or her own good reputation remains capable of suffering an injury and should be granted the right to obtain compensation for damages resulting from the libel.82 The latter is firmly grounded in the constitutional guarantee of human dignity, and cannot be seriously contested; it is worth noting, however, that it has not always been unanimously followed by subsequent case law.83 More significant to our discussion is the corollary derived from the former principle: after having remarked that truth is an absolute defense to a defamation claim, the Court of Cassation urged the trial courts to compare the defamatory statements with the "historical truth." The question is, where should such a "historical truth" be derived from? The answer given by the Court of Cassation was unequivocal: it should be inferred, in this case, from the judgment of the High Court of Justice dated September 21, 1944, 84 by which Pietro Caruso was sentenced to death for (among other crimes) the role he played in the Ardeatine Caves massacre.85 This superposition of two different notions, of "judicial truth" and "historical truth," is noteworthy: once a court has evaluated facts and behaviors in the course of a trial, this trial judgment itself makes history, at least in the sense that it enters the judicial archives, and tends to influence further decisions in a circular and self-referential way. However, this is not a sufficient guarantee against inconsistent court findings, as previous analysis of war crimes trials has clearly shown. Often the passage of time and changes in public opinion alter the way in which the same facts are perceived, leading to contradictory rulings.

80. The decisions published in the law reports are Cass, 13-5-1958, no. 1563, Foro italiano 81 (1958): I, 1 1 17; Court of App. Florence, 1 1-3-1960, Foro padano 15 (1960): I, 96, with a comment by Mario Fabiani, Diffamazione e prova della verità del fatto narrato; Foro italiano 83 (1960): 1, 1028; and Cass., 24-4-1962, no. 816, Foro italiano 85 (1962): I, 1722. 81. Cass, 24-4-1962, no. 816, 1724-25. 82. Cass, 13-5-1958, no. 1563, 1120. 83. See Court of App. Rome, 14-2-2005, Diritto dell'informazione e dell'informatica 21 (2005): 256, denying that Capt. Priebke's reputation is capable of being further injured by the attribution of untrue facts (namely, alleged execution of the trade unionist Bruno Buozzi and thirteen other anti-Fascists in La Storta, Rome). 84. See High Court of Justice, 21-9-1944, Giustizia Penale 50-51 (1945-1946): II, 42; on this trial see Staron, Fosse Ardeatine und Marza botto, 103. 85. Cass, 24-4-1962, no. 816, 1724-25.

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Sometimes new facts are discovered that alter the meaning of the old findings, and result in new interpretations of past events. Delicate issues may arise: supposing inconsistent rulings do occur, on which basis should a subsequent decision be built? If the judicial evaluation of facts is by definition limited and partial, should the courts exercise self-restraint in challenging the results of research by historians?

10. The Reputation of the Partisans

The courts were confronted with the first issue (inconsistent rulings) in a group of cases arising from a series of press campaigns that took place in Italy during the 1990s. The extradition and trial of Capt. Priebke again ignited the (never extinguished) political and ideological conflict surrounding the interpretation of the Resistance.86 Shortly after Priebke's arrival from Argentina in November 1995, neo-Fascist and neo-Nazi groups started to raise their voices against the prosecution of the old SS captain; graffiti appeared on walls in Rome calling for "freedom for Priebke."87 At the same time, Priebke's prosecution sparked intense media debate over moral responsibility for the reprisal, and the legitimacy and appropriateness of the partisan attack on via Rasella.88 Old myths resurfaced and were presented to the public as untold truths. In particular, new credibility was given to the myth that, in the aftermath of the via Rasella attack, the Germans had requested that the perpetrators take responsibility in order to avoid a reprisal.89 This had been proven false at Kappler's trial, where it emerged that the reprisal had been kept (and conducted) in secret for security reasons; namely, to avoid the risk of a popular revolt. Several studies by professional historians have unequivocally confirmed this finding,90 alluded to earlier. Nonetheless, the myth held

86. See generally Filippo Focardi, "La questione dei processi ai criminali di guerra tedeschi in Italia: fra punizione frenata, insabbiamento di Stato, giustizia tardiva (1943- 2005)," Annali della Fondazione Ugo La Malfa 20 (2005): 179-212. 87. See Katz, Roma città aperta, 384-85. 88. See Michela Ponzani, "La memoria divisa intorno alla strage delle Fosse Ardeatine (parte finale)," Il Secondo Risorgimento d'Italia 19 (2009): 1 1, 35-38; the climate created by the revisionist press is described in detail in the autobiography of the partisan Rosario Bentivegna, written in collaboration with the historian Michela Ponzani; see Rosario Bentivegna, Senza fare di necessità virtù. Memorie di un antifascista, (Turin: Einaudi, 201 1). 89. On this myth, see Battaglia, Storia della Resistenza italiana, 227 ; and Steinacher, "Das Massaker der Fosse Ardeatine und die Täterverfolgung," 294-95. 90. See Alessandro Portelli, L 'ordine è già stato eseguito: Roma, le Fosse Ardeatine, la memoria (Rome: Donzelli, 1999), 317-34; Alessandro Portelli, "The Massacre at the Fosse

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 872 Law and History Review, November 2013 widespread belief within the collective memory of Romans, and was used instrumentally in order to put the blame on the partisans, who, in accordance with this narrative, should have given themselves up to the Germans to prevent the massacre of innocent civilians at the Ardeatine Caves. A few days before the opening of Priebke's trial, the newspaper II Tempo , as part of an article by Pierangelo Maurizio headlined "The Secrets of via Rasella," reproduced a photograph of a human head. This was said to be the head of 13 -year-old Pietro Zuccheretti, who had been passing by on via Rasella at the time of the partisans' attack, and who was killed by the bombing. The photograph - it would later be demonstrated at trial - was a falsification, but it worked well to make the case against the partisans emotionally stronger. This was the political climate that led to a second wave of litigation over the facts of via Rasella and the Ardeatine Caves.91 On the one hand, the relatives of the young boy who was killed in the partisan attack had lodged a criminal complaint against the surviving members of the commando unit, Rosario Bentivegna, Carla Capponi, and Pasquale Balsamo.92 On the other hand, the partisans decided to fight in court all defamatory statements aimed at distorting their version of reality and weakening the moral legitimacy of the Resistance. Whereas in the parallel trials of Priebke and Hass, the focus had been on the German retaliation, in these proceedings the issue became the legal characterization of the partisan attack. Was it a criminal offense? Or was it a legitimate act of war? As has been discussed, the 1999 judgment of the Court of Cassation intended to resolve the long-lasting inconsistency between the criminal and the civil evaluation of the same events, holding that the partisan attack was a "legitimate act of war against a foreign army occupying the country, and was directed at a military target."93 This was probably meant to be the last word on the story of via Rasella, but it was not. The memory of those days was still a divided one, and no judicial intervention could settle the political and historiographical dispute about the meaning of the partisans' behavior.

Ardeatine," 29, 33; Pavone, "Note sulla Resistenza Armata, le rappresaglie naziste ed alcune attuali confusioni," 46; Staron, Fosse Ardeatine und Marzabotto,46 ; Maria Ferretti, "Mémoires divisées, Résistance et guerre aux civils en Italie," Annales 60 (2005): 627, 630; Michela Ponzani, "Trials of Partisans in the Italian Republic: The Consequences of the Elections of 18 April 1948," Modern Italy 16 (201 1): 121, 133; and Ponzani, "La memoria divisa intorno alla strage delle Fosse Ardeatine (parte finale)," 36. 91. For further details in Katz, Roma città aperta, 385. 92. See above, note 65 and corresponding text. 93. Court of Cassation, 23-2-1999 (quoted above, note 66).

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Shortly after the Supreme Court decision, the newspaper II Tempo published an article critical of the ruling, entitled "The Court of Cassation hon- ors as heroes the slaughterers of civilians on via Rasella." Carla Capponi (who was awarded the Gold Medal for Military Distinction in the 1950s) sued, claiming that she had been libeled by the epithet "slaughterer of civilians." The Court of Rome and the Court of Appeal dismissed the charges, stating that the legal characterization of the attack as a legitimate act of war did not prevent other persons from expressing critical views about the appropriateness of the attack. The Court of Cassation - 10 years after publication of this article - reversed the lower court decisions, holding that, although the characterization of the attack as an act of war did not prevent others from expressing critical views about its appropriateness and moral justification, the epithet "slaughterer of civilians" went beyond legitimate criticism and constituted an unlawful infringement of the plaintiffs rights of honor and dignity.94 More difficult had been the task of the trial courts and the Court of Cassation in a parallel case, which arose from an allegedly defamatory article - headlined "The boy who was killed on via Rasella" - published on the front page of II Giornale (a right-wing newspaper edited by Vittorio Feltri and owned by the Berlusconi family).95 The plaintiff in this trial was the partisan Rosario Bentivegna (Carla Capponi's husband). He sued the publisher for damages, claiming that the entire press campaign was unfair, and that he had been libeled by various statements in the article. Among other elements of the coverage, he contested the claim that the partisans knew about the presence of a 13 -year-old boy close to the rubbish cart containing the explosives and decided to ignite the fuse nonetheless. He also denied that the target of the attack constituted - as stated in the article - old unarmed soldiers of Italian citizenship. Also, he alleged that it was insulting that the editorial cast him as the moral equivalent of Priebke. The Court of Milan dismissed the action on the basis of free speech's con- stitutionally protected status. This decision was overturned by the Court of Appeal of Milan, which held that freedom of speech is a valid defense in an action for defamation only if the statements refer to true facts, or at least to facts that reasonably appeared to be truthful in light of the available sources of information. At trial, several statements were found to be false, drawing also on professional historical expertise. In particular: 1) the

94. Cass, civ., 21-7-2009, no. 16916, Foro italiano 132 (2009): I, 2974, with a comment by Domenico Maltese, "La stampa sulla vicenda di via Rasella," and by Mirella Chiarolla, "Il peso delle parole." 95. Cass, civ., 6-8-2007, no. 17172, Nuova giurisprudenza civile commentata 24 (2008): I, 241; on this decision, see Vincenzo Zeno-Zencovich, "Il giudizio della storia e la storia attraverso il giudizio," Nuova giurisprudenza civile commentata 24 (2008): II, 34-40.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 874 Law and History Review, November 2013 photograph of the decapitated head was judged to be a falsification (although this issue is still debated)96 as uncertainty about the position of the youth at the moment of the explosion meant it could not be demonstrated that the partisans saw him and decided nonetheless to go on with the attack; 2) the soldiers were armed members of the Ordnungspolizeiregiment "Bozen", many of whom were born in Italian South-Tirol but who had opted for German citizenship;97 3) the number of civilians who died in the partisan attack was two, not seven; and 4) no warning was ever given by the Germans about pending retaliation absent the surrender of the perpetrators, and the reprisal was conducted in utmost secrecy only 21 hours after the attack; therefore it could not be argued that the partisans consciously refused to surrender to the Germans in order to save the lives of the civilians massacred at the Ardeatine Caves. Also, the Court placed particular importance on its characterization of the partisan attack as a legitimate act of war against a foreign enemy, expressly referring to the various prior rulings in the postwar wrongful death cases. This decision was in turn upheld by the Court of Cassation and is therefore now res judicata 98 It seems, therefore, that 60 years after the events of via Rasella, the legal dispute about how to characterize the attack has finally been settled. According to Italian law (but not necessarily international law), it was a legitimate act of war against foreign occupants. Public discourse must tolerate criticism and differing opinions about these events. However, if the reputation and dignity of other persons is at stake, those opinions may not be expressed in a dignity-offending way, facts may not be misstated, nor may the legal characterization of the events be altered. This "judicial truth," therefore, starts to work as an external limit on the freedom of the media to report on the historical event. But what if the contested speech exists within the category of historical research?

11. The Silence of Pope Pius XII

On November 28, 1973, the niece of Eugenio Pacelli, Pope Pius XII, brought a private criminal complaint against Robert Katz, Carlo Ponti

96. See Gian Paolo Pelizzaro, "... E Pietro, 12 anni, saltò. In aria. . Storia in rete (2009): 42, http://www.storiainrete.com/wp-content/uploads/2009/02/05-via-rasella-pdf.pdf (September 8, 2012) (arguing that historical expertise did not consider relevant details of the places, and concluding that the photograph is not a fake). 97. As regards the history of the Regiment "Bozen " see Prauser, "Mord in Rom?" 279-82; and Lorenzo Baratter, Dall' Alpenvorland a via Rasella. Storia dei reggimenti di polizia sud- tirolesi (1943-1945) (Trento: Publilux, 2003), 51-77, 79-96. 98. Cass. civ., 6-8-2007, no. 17172.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial "Truth" and Historical " Truth " 875 and George Cosmatos. She argued that the legacy of Pope Pius XII - who died in 1958 - had been damaged by Katz's book Death in Rome. The Massacre of the Ardeatine Caves and by the movie "Rappresaglia" ["Reprisal"], which was based on it. Robert Katz, who recently died, was an American journalist and (non- professional) historian. He was the author of several books and essays concerning the Second World War and the German occupation of Italy. Death in Rome , originally published in the United States in 1967, focused on the Ardeatine Caves massacre but also covers the other most significant events of March 1944 in Rome. Among the many issues discussed by Katz is the political role and behavior of Pope Pius XII in those stormy days. In a nut- shell, Katz claimed that the Pope had information about the planned reprisal, yet made no effort to stop it or even delay it. Not only - it is argued - did he remain silent about the extermination of the European Jews; he, the Bishop of Rome, the " defensor civitatis also chose not to use his power to raise his voice against the massacre of members of his own city. This silence was alleged to be part of a sophisticated political strategy: the Pope was concerned about the territorial integrity of the Vatican and the status of Rome as an "open city"; he feared an uprising of the Roman population led by Communist forces within the Resistance, and, therefore, he had to rely on the Germans to keep public order and allow for a "peace- ful" passage of power to the Allies." Katz concluded with the following words: as regards the Ardeatine Caves massacre, the Pope's position was "not only flawed, but also immoral."100 The book Death in Rome came out only 3 years after the publication of the famous book Pie XII et le Hie Reich. Documents , by the professional historian Saul Friedländer, as well as Hochhut's controversial play The Deputy , in which it was insinuated that the Pope had sympathies for the National Socialist regime.101 Given this atmosphere of growing criticism of the figure and role of Pope Pius XII, Pacelli's relatives decided to fight in court against this denigration of the Pope's legacy. The case, however, was not an easy one: Katz invoked the constitutional safeguards of freedom of speech and historical research as a general defense against the defamation charges. He argued, in particular, that his statements concerning the Pope's failure to act did not represent a calculated and

99. Robert Katz, Morte a Roma. Il massacro delle Fosse Ardeatine (Rome: Editori Riuniti, 1996), 224-31. 100. Ibid., 231. 101 . On the various types of criticism of the role played by Pius XII dunng the totalitarian era see, ex multis, Francesco Malgeri, "La chiesa di Pio XII tra guerra e dopoguerra," in Pio XII, ed. Andrea Riccardi (Rome-Bari: Laterza, 1984), 95; and Melloni, "Per una storia della tribunalizzazione della storia," 20-23. See also the studies quoted below, note 114.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 876 Law and History Review, November 2013 malicious attack on the person of Eugenio Pacelli, but simply a historical judgment based on substantial evidence. The judges were confronted with two main issues in this case: 1) may a court of law review findings of historical research, or are historians granted a sort of immunity, provided that they respected the basic canons of professional ethics and 2) if a review of the findings is admissible in principle, were the defamatory statements here justified by the truth of the allegations? The Court gave the first question a clear answer: the historian is not granted any special privilege by the Italian Constitution.102 The protection of freedom of the arts and of scientific research, contained in Article 33 of the Constitution, applies only to teaching. By contrast, divulging of the results of the research is regulated by Article 21, concerning freedom of expression. According to this provision, and under the interpretation it was given by the courts until the 1980s, a defamatory statement is excused only if the facts referred to in it are truthful.103 The defamer bears the burden of proof of the truth of the statements. The crux of the problem, therefore, became ruling on the truth of the following statements:

1 . Pius XII had some knowledge of the planned reprisal. 2. He had channels of communication with the authorities in charge of the reprisal operations. 3. Intervention by him would have had some chance of preventing the reprisal. 4. He deliberately decided not to act in favor of the victims.104

The truth of statement no. 1 was clearly the most important issue, and at the same time, the most difficult to answer. In his book, Katz alleges facts that make it reasonable to conclude that the Pope had relevant information about the planned retaliation. He refers to six separate sources, some of them testimonies by SS officers (such as Col. Dollmann, who described a meeting on the night of March 23 with Father Pancratius Pfeiffer) and a German diplomat (Albrecht von Kessel), but also public documents (such as an editorial published in the Vatican newspaper L 'Osservatore

102. Court of Rome, 27-11-1975, Temi romana 25 (1976): 636, with a comment by Fernando Della Rocca, "Un processo storico." 103. In the 1980s the courts started to allow the defendant merely to prove that the facts reasonably appeared to be truthful on the basis of the available sources of information. See Vincenzo Zeno-Zencovich, "Damage Awards in Defamation Cases: An Italian View," International and Comparative Law Quarterly 40 (1991): 692. 104. Court of Rome, 27-11-1975, 648.

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Romano the same day as the partisan attack).105 He also states that he tried to get further information from the Vatican, without success.106 He ends his book by expressing the hope that the passage of time and the disclosure of new sources of information might make it easier for historians to find out the truth about what actually happened in those dramatic days in Rome. The judges in charge of the proceedings questioned Katz's analysis of these sources and spent great effort trying to get further information about the days of March 23 and 24, 1943. The Court travelled to Gaeta to take testimony from Col. Kappler, detained in the military prison there; then to Germany, to hear from Col. Dollmann as a witness; finally, they entered Vatican City to question Card. Nasalli Rocca, who acted as a link between the Vatican and the administrator of the Regina Coeli prison in Rome. Several other witnesses were heard from, and documents collected. After almost 2 years of investigation, the Court reached a conclusion, determining as the "one and only truth" that Pius XII did not know anything - or, at least, it could not be demonstrated that he knew anything - about the planned reprisal. The information cited by Katz was deemed insufficient to substantiate the claim that the Pope chose to remain silent. Therefore, the entire edifice built by Katz collapsed and his "moral" and "historical" judgment about the Pope's behavior was considered a libel.107 Accordingly, he was sentenced to 1 year in prison and fined. On subsequent appeal, this decision was quashed.108 The Court of Appeal did not replace one "truth" with another; it simply decided not to interfere with the historical ascertainment of truth. Granting the historian an almost absolute immunity on the basis of Article 33 of the Italian Constitution (providing an explicit guarantee of freedom of the arts and sciences), the Court expressly stated that "the 'truth' of the information provided by history, considered as a science, cannot be controlled by the judge, whose analytical tools and methodological criteria differ greatly from those of the historian."109 The judges opted, therefore, for a "procedural" approach, refusing to review the specific findings of historical analysis and contenting themselves with scrutiny of the methods adopted by the historian as well as that historian's form of expression. They also underlined the need to recognize heightened protection of freedom of speech concerning public figures. Applying such criteria, they came to

105. Katz, Morte a Roma, 224-25. 106. Ibid., 226. 107. Court of Rome, 27-11-1975, 648. 108. Court of App. Rome, 1-7-1978, Temi Romana 27 (1978): 313, with a comment by Fernando Della Rocca, "Ancora del processo su Pio XII e le fosse Ardeatine." 109. Ibid, 317.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 878 Law and History Review, November 2013 the conclusion that Death in Rome was a sufficiently serious work and that the criticism of Pius XII was based on reliable sources and expressed in a moderate way.110 Accordingly, Katz was acquitted. This ruling was reversed again by the Court of Cassation, which refused to grant the historian any particular privilege.111 Article 21 of the Italian Constitution, and not Article 33, applied to the publication of historical research. As a result, defamers could not be excused unless they proved that the relevant facts were truthful, or at least that they reasonably appeared to be truthful on the basis of the sources of information available. These principles enunciated, the case was remanded to the Court of Appeal of Rome for a new decision on the merits. A new trial was held. New witnesses were heard - among them Sen. Giulio Andreotti and Consul Eitel Friedrich von Möllhausen - and more documents collected. In July 1981, the Court rendered judgment against Katz, reinstating the original "truth": Pius XII had no previous knowledge of the planned retaliation.112 The decision is an extremely long one and strikes one as more like a historical treatise than a judicial opinion. In particular, the judges discuss at length controversial issues, such as the alleged "pro-Germanic" stance of Pius XII, his fear of Communist Russia, and the Pope's attitude toward the Italian resistance movement. As a result, Katz's findings are replaced with the Court's own authoritative version of the story. The Court of Cassation handed down the final word on this controversy in 1984. 113 In response to an appeal by Katz, it confirmed the 1981 decision, but added that the offense was not punishable, because of an intervening amnesty. Katz's confrontation with the Italian criminal justice system was over. However the underlying issues remain unresolved. The controversy about the figure and role of Pope Pius XII has not been extinguished by these judgments and still attracts great interest.114 Documents released by the CIA and the Vatican Archives have added new tiles to the mosaic. Robert Katz, in his most recent book The Battle for Rome: The Germans,

110. Ibid., 320-23. 111. Cass, pen., 19-10-1979, Foro italiano 104 (1981): II, 243. 112. Court of App. Rome, 2-7-1981, Temi Romana (1981): 715, with a comment by Fernando Della Rocca, "Brevi considerazioni conclusive sul processo contro l'accusatore di Pio XII (a proposito dell'eccidio delle fosse Ardeatine)." 113. Cass., 29-9-1983, Giustizia Penale (1984): II, 325. 1 14. See ex plurimis the important studies by Giovanni Miccoli, I dilemmi e i silenzi di Pio XII. Vaticano, Seconda guerra mondiale e Shoah (Milan: Rizzoli, 2007); and Andrea Riccardi, L'inverno più lungo. 1943-1944: Pio XII, gli ebrei e i nazisti a Roma (Rome-Bari: Laterza, 2008).

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms Judicial " Truth " and Historical " Truth " 879 the Allies , the Partisans, and the Pope , highlighted the significance of an official document contained in the Vatican Archives and disclosed only in 1980. 115 It consists of a note written under the letterhead of the Secretariat of State of His Holiness and dated March 24, 1944, 10:15 a.m. (a few hours before the massacre). It reads as follows:

Mr. Ferrero, of the Governatorato of Rome, reports the following details about yesterday's incident: the German victims numbered twenty-six soldiers; among the Italian civilians there were, unfortunately, three or four deaths; it is not easy to reconstruct what took place because everyone escaped; some apartments were sacked and the German police took complete control of the area, prohibiting any interference by other authorities; in any case, it seems that a column of German vehicles passing through Via Rasella was responsible for provoking the Italians who then hurled grenades from the building alongside Palazzo Tittoni; the countermeasures are not yet known: it is however foreseen that for every German killed ten Italians will be executed. Mr. Ferrero hopes to provide further details later.116

Katz argues that this document unequivocally proves that the Vatican had previous knowledge of the planned German reprisal operations. Other historians object that this note reveals only that the Germans were planning to execute ten Italians for every German killed, but does not say anything about the date or time of the reprisal; in particular, there is no mention that it was expected to happen within 24 hours of the attack on via Rasella.117 Who should settle this controversy? The courts or the historical community?

115. Katz, Roma città aperta, 278. 116. English translation by Robert Katz, http://www.theboot.it/mar_intros.html#anc6 (September 8, 2012). The document was originally published in Actes et documents du Saint Siège relatifs à la seconde guerre mondiale, vol. 10, Le Saint Siège et les victimes de la guerre, Janvier 1944 - Juillet 1945 , ed. Pierre Blet, Robert A. Graham, Angelo Martini and Burkhart Schneider (Vatican City: Libreria Editrice Vaticana, 1980), doc. no. 115, 189-90. In the original version, it reads as follows: " Récit de l'attentat de la Via Rasella. Contremesures encore incertaines. L'Ing. Ferrero, del Governatorato di Roma, dà i seguenti particolari circa l'incidente di ieri: il numero delle vittime tedesche è di 26 militari; tra i civili italiani si lamentano tre o quattro morti; non è facile ricostruire la scena dato che tutti si sono dati alla fuga; alcuni appartamenti sono stati saccheggiati e la polizia tedesca ha preso l'assoluto controllo della zona senza permettere ingerenza di altre autorità; sembra ad ogni modo che una colonna di automezzi tedeschi attraversando via Rasella abbia la responsabilità di aver provocato gli italiani che poi avrebbero lanciato delle bombe dall'edifi- cio di fianco al Palazzo Tittoni; finora sono sconosciute le contromisure: si prevede però che per ogni tedesco ucciso saranno passati per le armi 10 italiani. L'Ing. Ferrero spera di dare più tardi maggiori particolari." 117. For a critical evaluation of the new evidence provided by Katz, see Giorgio Angelozzi Gariboldi, "Pio XII e le Fosse Ardeatine," Nuova storia contemporanea 5 (2001): 135-42, especially 139; and Giuseppe Vedovato, "Ancora sul "silenzio-non assenso'

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12. Writing History in the Courtrooms?

In our discussion of the via Rasella/Ardeatine Caves litigation, we distinguished three main classes of controversies: 1) the criminal prosecutions of the Nazi offenders, 2) the actions for damages (and private criminal proceedings) initiated against the partisans responsible for the via Rasella attack, and 3) the defamation cases, arising from the public portrayal of these events in the mass media. The first two categories specifically deal with responsibility for the facts of what transpired at via Rasella and the Ardeatine Caves; the last one concerns the words uttered in relation to these events. The defamation cases extend over a period of 50 years and reflect some interesting features of Italian society. In particular, in the last 1 5 years, actions for damages have been brought mainly by former partisans, which is a clear sign that, even a half century after the end of the War, Italy continued to hold a divided memory of the Resistance. Its values, openly contested by a revisionist press and a center-right political majority, had to be enforced in court. Table 2 schematizes the essential features of the controversies at issue. It is an uncommon but useful exercise to examine simultaneously the decisions about the facts and those about the discourse. Doing so sheds light on multiple dimensions of the legal reconstruction of a historical reality, bringing to the fore the problems created by the contemporary trend toward a "judicialization" of the past,118 as well as the inherent limitations of courts as truth-finding institutions. We will try to generalize the outcomes of our empirical analysis. First of all, it should be noted that there tends to be a circular relationship between judgments about facts and judgments about speech. By adjudicating the issue of legal responsibility for acts and omissions, courts are called upon to ascertain facts, to characterize them according to legal rules, and to derive specific normative conclusions from this characterization. Whereas the judicial interpretation of a given event may vary over time, the ascertainment of facts - at least in legal systems without an all-lay jury119 - is generally more stable and less open to controversy. It frequently happens that courts refer to historical facts and behaviors as they were reconstructed in earlier cases (e.g., the sequence of events in the via Rasella attack, or the

di Pio XII," Rivista di studi politici internazionali 72 (2005): 99-111. See also Miccoli, I dilemmi e i silenzi di Pio XII, 270-71; and Riccardi, L'inverno più lungo, 324-28. 118. The expression "judiciarisation du passé " is used by de Bellescize, "L'autorité du droit sur l'histoire," 52. 119. The presence of an all-lay jury seems to prevent the trial from accomplishing its "epistemic tasks". See Michele TarufFo, La semplice verità. Il giudice e la costruzione dei fatti (Rome-Bari: Laterza, 2009), 183-91.

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Table 2. Outcome of defamation cases

Parties Relevant Decisions Legal Basis Outcome Caruso v. Soc. Cass. 1958; Court Arts. 2043-2059 Liability in principle; Documento of App. Florence, civil code; art. decision quashed for Film 1960; Cass. 1962 595 penal code procedural mistakes Katz Court of Rome Art. 595 penal 1 year and 1 month 1975; Court of App. code prison - € 200 fine/ Rome 1978; Cass. not punishable 1 979; Court of App. because of Rome 1981; Cass. intervening amnesty 1983 Capponi Court of App. Arts. 2043-2059 Liability: damages Bentivegna Rome 2004; Cass. civil code; art. v. Soc. 2009 595 penal code L 'editrice Romana Bentivegna Court of Milan Arts. 2043-2059 Liability: damages v. Feltri, 1999; Court of App. civil code; art. Chiocci and Milan 2003; Cass. 595 penal code Soc. Editrice 2007 Europea

involvement of Police Chief Pietro Caruso in the mass executions of the Ardeatine Caves) and take these as a starting point for further inquiries.120 This leads to an interesting result in the field of historical adjudication: the judgments about the facts give rise to one or more "judicial truths," which influence the way in which controversies over speech are decided. Seen from a legal realist perspective, this means that the prior rulings may work - not differently from statutes prohibiting the public contestation or gross trivialization of a specific historical occurrence121 - as an external limit on freedom of expression in historically related matters. Anybody could claim, without fear of sanctions, that Kappler's (or Priebke's) conduct was not morally reprehensible, as it represented the execution of a military order. Nobody could write, by contrast, that the partisans' attack was a criminal act, which should have been punished just as severely as the murders committed by the Nazis. Such a statement infringes the rights to dignity and reputation of the partisans, as interpreted in light of the

120. See above, sect. 9, discussing the Court of Cassation decision of 24-4-1962, and sect. 10, discussing the defamation cases concerning the partisans involved in the via Rasella attack. 121. See above, note 23 and corresponding text.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 882 Law and History Review, November 2013 various rulings on liability for the via Rasella attack.122 One could conclude that once a "judicial truth" is created (or selected among alternative possible "judicial truths"),123 it tends to influence the way in which history is publicly represented, particularly by the media. Second, if a sort of hermeneutical circuit is created among courts deciding different but related cases, this does not mean that adjudication by judicial institutions is a completely closed and autoreferential process. Just as a system of law is embedded within the culture of a specific society,124 so the courts - its oracles - are simply a node within a complex political and institutional network, whose stability depends upon the ability to evolve through reflexive adaptation. Deciding cases is an integral part of this evolutionary process, and should not be regarded as a purely technical activity detached from its social environment. The judicial process of "truth-building" in postwar Italy shows how significant this dialogical dimension can be. As we have seen throughout this article, the decisions of the 1940s and the 1950s concerning the Ardeatine Caves massacre display a clear reluctance on the part of the judges - sitting in military courts - to affirm the responsibility of subordinates acting under orders from their superiors.125 This appears consistent, mutatis mutandis , with the overall trends during the first decades after the War of how the past was elaborated by the Italian judiciary. As many legal historians have pointed out, the high degree of personal continuity within the judiciary,126 the cultural inheritance of the judges, and the political conditions of postwar Italy, all led to an exceed- ingly indulgent attitude toward the wrongs committed by former Fascists (and a disproportionately severe stance regarding partisans' behavior).127

122. Cass, civ., 6-8-2007, no. 17172. 123. For the selection over time of a specific judicial "truth," see above, sect. 6 and 10, concerning the legal characterization of the via Rasella attack. 124. See generally Richard Hyland, Gifts. A Study in Comparative Law (Oxford: Oxford University Press, 2009), 69. 125. See above, sect. 4 discussing The Kappler Trial. 126. On this, see the important study by Guido Neppi Modona, "La magistratura dalla liberazione agli anni cinquanta. Il difficile cammino verso l'indipendenza," in Storia dell'Italia Repubblicana, vol. III, L'Italia nella crisi mondiale (Turin: Einaudi, 1997), 83- 137. 127. Donini, "La gestione penale del passaggio dal fascismo alla democrazia in Italia"; and Luigi Lacchè, "'Sistemare il terreno e sgombrare le macerie'. Gli anni della Costituzione provvisoria: alle origini del discorso sulla riforma della legislazione e del codice di procedura penale (1943-1947)," in L'inconscio inquisitorio. L'eredità del Codice Rocco nella cultura processualpenalistica italiana , ed. Loredana Garlati, (Milan: Giuffrè, 2010), 271-304. As regards the double standard and the so-called "judicial offen- sive against the Resistance," see Michela Ponzani, L'offensiva giudiziaria antipartigiana nell'Italia repubblicana (1945-1960), (Rome: Aracne, 2008); Ponzani, "Trials of partisans in the Italian Republic," 133; Focardi, La guerra della memoria , 28-30; Emilio Franzina,

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By contrast, when the "new and tardy phase of transitional justice" began in the 1990's,128 the political and institutional climate was completely different, and the solutions adopted 40 years ago were no longer socially acceptable. Hence the radical change in the perspective adopted by the courts. Change that is epitomized, on one hand, by the Priebke decision of the Court of Cassation, in which the SS officer was convicted of the same crimes that his superior Kappler had been acquitted of in the 1950s;129 and, on the other hand, by the various rulings concerning defamation of the partisans, unequivocally endorsing the thesis that via Rasella was a legitimate act of war (a conclusion sharply contested in the aftermath of the War).130 We have noted, therefore, a dual variation in the "judicial truths" arising out of via Rasella and the Ardeatine Caves.131 First, a synchronic variation: the same fact (via Rasella), evaluated by military courts applying international law, is characterized as an illegitimate terrorist attack; meanwhile, civil courts, applying tort law, instead characterized it as a legitimate act of war. Second, a diachronic variation: the same events (the mass executions ordered by Kappler and his subordinates), as seen through the lenses of a 1940 versus a 1990 court, have different legal meaning, leading to opposite results in terms of personal responsibility. This pattern is a significant phenomenon. It not only reminds us that adjudicating cases of historical relevance may be part of the more general project of identity-building politics, aimed at constructing the future by means of a peculiar reconstruction of the past.132 It also suggests that judges should not be considered experts on "truth" in a more detached and impartial way than historians, who also - as famously argued by Benedetto Croce - look at the past through the lenses of the present.133

"L'azione politica e giudiziaria contro la Resistenza (1945-1950)," in La democrazia cristiana dal Fascismo al 18 Aprile : Movimento cattolico e Democrazia cristiana nel Veneto, ed. Mario Isnenghi and Silvio Lanaro, (Venice: Marsilio, 1978), 220; and Achille Battaglia, I giudici e la politica (Rome-Bari: Laterza, 1962), 10. 128. Pezzino, "'Experts in truth?'" 349. 129. Court of Cassation, 16-11-1998; Military Court of Appeal, 7-3-1998 (discussed above, sect. 5). 130. The Court of Cassation discussions quoted above, note 94 and note 95. 131. See above, sect. 7, discussing the outcomes of the criminal and civil proceedings related to the "facts" of via Rasella and the Ardeatine Caves. 132. The adjudication of cases by courts of law is regarded by Jon Elster as one of the many institutional devices available to achieve the aims of transitional justice: see Jon Elster, Closing the Books. Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2004), 79-135; see also Danilo Zolo, La giustizia dei vincitori. Da Norimberga a Baghdad (Rome-Bari: Laterza, 2006), 140-67. 133. See, generally, Jacques Le Goff, Histoire et mémoire (Paris: Gallimard, 1988), 1 86- 93; more specifically, on the influence of the contemporary "moralization of the past" on

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This brings once more to light the delicate issue of the relationship between judge and historian. Our inquiry confirms the main findings of the literature concerning similarities and differences between the two professions' activities,134 but also discloses a certain gap between theory and practice. As far as similarities go, the cases analyzed throughout the article clearly illustrate the fact that, despite the different orientation of the two activities, the method followed by the judge has several points in common with the method employed by the historian.135 Both have to reconstruct the past and decodify its meaning in a way that is rationally sound and as little arbitrary as possible. Describing things "as they happened" (von Ranke) remains a fiindamental canon for both professional activities. At the same time, there are obvious differences in the overall goals and instru- ments of the truth-finding process for the judge versus the historian, and these create a clear disciplinary divide between them. As argued famously by Marc Bloch, "when the scholar has observed and explained, his task is finished. It yet remains for the judge to pass sentence."136 Such a divide easily explains, for example, the heightened debate concerning the use of historical expertise in court,137 and also the traditional attitude of respect, on the part of the judiciary, for the so-called franchises de l'histoire .138 According to a maxim widely diffused in French case law and approved by the European Court of Human Rights139, " les tribunaux [. . .] n ' ont ni qualité, ni compétence pour juger l'histoire; [. . .] démunis de tout pouvoir de recherche inquisitoriale ou d'action d'office, ils n'ont pas reçu de la loi mission de décider comment doit être représenté et caractérisé tel ou tel épisode de l'histoire nationale ou mondiale ."140

historiographical practice (and on the very notion of "historical truth") see Marina Cattaruzza, "How Much Does Historical Truth Still Matter?," Historein 11 (2011): 49-55. 134. See above, note 2. 135. Calamandrei, "Il giudice e lo storico," 107; see also Stolleis, "Der Historiker als Richter - der Richter als Historiker," 177-78. 136. Marc Bloch, The Historian's Craft (New York: Vintage Books, 1953), 138. 137. See above, note 14. 138. Jean-Pierre Le Crom, "Juger l'histoire," Droit et société , 38 (1998): 37. 139. European Court of Human Rights (ECHR), 29-9-2004, App. n. 64915/01, Chauvy and others v. France, para. 69: "[t]he Court considers that it is an integral part of freedom of expression to seek historical truth and it is not the Court's role to arbitrate the underlying historical issues, which are part of a continuing debate between historians that shapes opinion as to the events which took place and their interpretation." 140. Tribunal de Grande Instance (TGI) Paris, 8-7-1981, Recueil Dalloz (1982): jur., 59 ; see also TGI Paris, 14-2-1990, Gazette du Palais (1991): II, 452 ; TGI Paris, 2-4-1998, Les petites affiches 85 (1998): 24. Similar words can be found in Irving v. Penguin Books, Lipstadt (2000) England and Wales High Court of Justice, Queen's Bench Division 115 (leave to appeal denied in [2001] England and Wales Court of Appeals Civ. 1197):

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This means that, when courts are called upon to rule on the public representation of past events, they should in principle refrain from second- guessing the "content," that is, the outcomes, of historical research, limit- ing their supervision to the methods employed by the historian.141 This position is intimately consistent with the idea of a disciplinary divide, because it is aimed at safeguarding the functional autonomy of the historical science, preventing the courts from becoming the forum of last resort for the resolution of academic controversies. However, it is increasingly under strain, as the contemporary tendency seems to be toward a heightened scrutiny over the exercise of a historian's freedom of research.142 This is to some extent the logical result of the changing role of history in the public space: the wider its social importance, especially its presence in the mainstream media domain, the stronger the need for institutional controls against an "irresponsible use of history."143 The court system is one of the main institutions in charge of this supervision; as a practical matter, however, achieving an acceptable balance between judicial control and respect for historians' freedom is not an easy task. Judicial self-restraint, emphatically affirmed in theory, is often disregarded in practice.144 If the recent French case law gives an insight into the risks of a too-rigid interpretation of the prohibitions against genocide denials,145

"Needless to say, the context in which these issues fall to be determined is one which arouses the strongest passion. On that account, it is important that I stress at the outset of this judgment that I do not regard it as being any part of my function as the trial judge to make findings of fact as to what did and what did not occur during the Nazi regime in Germany. It will be necessary for me to rehearse, at some length, certain historical data. The need for this arises because I must evaluate the criticisms of or (as Irving would put it) the attack upon his conduct as an historian in the light of the available historical evidence. But it is not for me to form, still less to express, a judgment about what happened. That is a task for historians. It is important that those reading this judgment should bear well in mind the distinction between my judicial role in resolving the issues arising between these parties and the role of the historian seeking to provide an accurate narrative of past events" (Gray J.). 141. Bernard Edelman, "L'office du juge et l'histoire," Droit et société 38 (1998), 52. 142. de Bellescize, "L'autorité du droit sur l'histoire," 66-76; Dumoulin, Le role social de l'historien. De la chaire au prétoire, 1 23 - 46. 143. de Baets, Responsible History, 16-39. 144. Thomas Hochmann, "Les limites à la liberté de P'historien' en France et en Allemagne," Droit et société 69-70 (2008): 537-38. 145. See, in particular, TGI Paris, 21-6-1995, Forum des Association Arméniennes de France c. Lewis, Les petites affiches 117 (1995): 17, holding the prominent Orientalist Bernard Lewis liable under Article 1382 c.civ. for denial of the Armenian genocide. See also the Pétré-Grenouilleau affair, recalled by Nora, "History, Memory and the Law in France, 1990-2010," 11, and by Melloni, " Per una storia della tribunalizzazione della storia 45.

This content downloaded from 159.63.132.73 on Thu, 11 Feb 2021 18:58:42 UTC All use subject to https://about.jstor.org/terms 886 Law and History Review, November 2013 the trial of Robert Katz is an illustrative example of a potentially proble- matic confusion between the role of the judge and the role of the historian.146 Called to rule upon the defamation claims lodged by Pope Pius XII's niece against the American writer Katz, courts have not resisted the temptation to use judgments to impart lectures on the history of the Second World War. They did so by asserting, for example, that it was absurd to argue that the Pope could fear an armed insurrection and seizure of power by the forces of the Resistance;147 or that it was clearly false that Pius XII had a "pro-Germanic" stance, capable of conditioning his political choices.148 To embark on such difficult and delicate historical evaluations does not seem necessary or useful in order to decide a legal controversy. Judges are not reliable historians, for the simple reason that the issues before them "are framed in a microcosm: the resolution of a dispute between one party and another."149 What they can provide is simply a frag- ment of truth, which will remain always dependent on the particular facts of the case and the evidentiary limitations of the trial.150 If the proper role of responsible historical research is to understand and to explain, the proper role of a court is to judge the responsible use of history, and not the history itself.

146. See above, sect. 11, discussing the various rulings concerning the defamation of Pope Pius XII. 147. Court of App. Rome, 2-7-1981, 722. 148. Ibid., 726. 149. Stephen Whinston, "Can Lawyers and Judges Be Good Historians?: A Critical Examination of the Siemens-Slave Labor Cases," Berkeley Journal of International Law 20 (2002): 160-75. 150. See, for a clear example, the critical analysis of the Priebke trial provided by Michele Battini and Paolo Pezzino, Guerra ai civili. Occupazione tedesca e politica del massacro. Toscana 1944 (Venice: Marsilio, 1997), 223-51, 253-58. The two historians argue that the reconstruction of the Ardeatine Caves massacre offered by the court was not entirely convincing, as the judges omitted to hear from Col. Dietrich Beelitz - Field Marshal Kesselring's chief of operations - as a witness. Col. Beelitz, informed by Gen. Mälzer of the attack on via Rasella while the Field Marshal was away from headquarters, telephoned the news to the German Armed Forces Supreme Command and witnessed the discussions that preceded the decision to execute ten Italians for every German killed. The authors conclude that by hearing from Col. Beelitz as a witness - as occurred in other proceedings - the judges could have ascertained the responsibility of the Wehrmacht (and of Field Marshal Kesselring in particular) for the reprisal and the massacre of hundreds of innocent civilians.

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