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Anti-Holocaust Denial Legislation in Europe

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Anti-Holocaust Denial Legislation in Europe Law against Negation: Anti-Holocaust Denial Legislation in Europe by Silvia Şuteu LL.M. SHORT THESIS COURSE: Comparative Freedom of Speech PROFESSOR: András Sajó, Dr. Central European University 1051 Budapest, Nador utca 9. Hungary CEU eTD Collection © Central European University, March 31, 2008 ABSTRACT This study deals with anti-Holocaust denial legislation in the European context. By looking at a number of different legal systems and the manner in which each has chosen to regulate denial, the present analysis aims at furthering the reader’s understanding of why such laws are adopted and how they function in practice. The study proceeds, in Chapter One, by analyzing the theoretical justifications underlying the regulation of harmful speech. It thus details the normative considerations based on freedom of speech, equality, human dignity, and democracy. It also takes into account the international aspect, accounting for what is increasingly called an international standard of banning hate speech. Furthermore, the study proposes to look at the particular message carried by anti-Holocaust denial laws. Only in so doing, the argument goes, can we fully understand the choice in adopting these laws, explain their record of implementation, and weigh their ultimate societal impact. The analysis then moves, in Chapter Two, to a detailed cross-national comparison of the texts of anti-denial legislation. Chapter Three discusses emerging jurisprudence surrounding Holocaust denial and its criminalization. The cases covered are varied, and are divided by region (Western Europe—Germany, Austria, France, Belgium; Eastern Europe—Romania and Hungary), but also according to specifics of the legal texts (which explains the grouping together of Spain and Switzerland). The reader will ultimately be able to identify common trends across these cases and even mutual reinforcement between different judicial bodies. Based on all the reviewed evidence, this examination concludes that the impetus behind anti- Holocaust denial laws is multi-fold. It is both a reaction to internal factors, signaling a certain official stance toward the victims of hate speech and society at large, and to external factors, such as international reputation and membership conditionality. CEU eTD Collection 1 INTRODUCTION .......................................................................................................................3 1. DEFINITIONS .......................................................................................................................6 2. LITERATURE REVIEW ........................................................................................................11 3. METHODOLOGY ................................................................................................................20 CHAPTER I...............................................................................................................................24 1. NORMATIVE JUSTIFICATIONS ............................................................................................25 1.1 Freedom of Speech ....................................................................................................25 1.2 Equality......................................................................................................................33 1.3 Dignity .......................................................................................................................38 1.4 Democracy .................................................................................................................42 2. INTERNATIONAL STANDARDS............................................................................................49 3. SYMBOLIC ROLE OF LAW ..................................................................................................52 CHAPTER II .............................................................................................................................59 1. ANTI-HOLOCAUST DENIAL LAWS IN WESTERN EUROPE...................................................60 1.1 Germany.....................................................................................................................60 1.2 Austria........................................................................................................................67 1.3 France.........................................................................................................................69 1.4 Belgium......................................................................................................................74 2. ANTI-HOLOCAUST DENIAL LAWS IN CENTRAL AND EASTERN EUROPE ............................76 2.1 Romania .....................................................................................................................78 2.2 Hungary......................................................................................................................82 3. ANTI-GENOCIDE DENIAL LAWS ........................................................................................85 3.1 Spain ..........................................................................................................................86 3.2 Switzerland ................................................................................................................90 CHAPTER III ............................................................................................................................94 1. ANTI-HOLOCAUST DENIAL LEGISLATION ENFORCEMENT.................................................94 1.1 The Law and Standing ...............................................................................................94 1.2 The Law in Numbers .................................................................................................96 2. ANTI-HOLOCAUST DENIAL LEGISLATION CASE LAW .......................................................99 2.1 Germany.....................................................................................................................99 2.2 France.......................................................................................................................102 2.3 Belgium....................................................................................................................107 2.4 Hungary....................................................................................................................111 2.5 Spain ........................................................................................................................114 CONCLUSION ........................................................................................................................119 BIBLIOGRAPHY......................................................................................................................125 CEU eTD Collection 2 INTRODUCTION In January 2007, the United Nations General Assembly adopted Resolution GA/10569 condemning Holocaust denial,1 while outgoing Secretary General Kofi Annan spoke against Holocaust deniers calling them “bigots.”2 Around the same time, a heated debate was raging on in Europe concerning the German proposal to have a common legal standard against Holocaust denial in the European Union (EU).3 Present in everyone’s minds were Iranian President Mahmoud Ahmadinejad’s frequent verbal aggressions against Israel and statements questioning the Holocaust. After all, it was as recently as 2005 that he boldly declared: “they [in the West] have invented a myth that Jews were massacred and place this above God, religions and the prophets."4 A year later he would also organize the so-called “International Conference to Review the Global Vision of the Holocaust,” 5 where known Holocaust deniers were treated as eminent scholars. The phenomenon of Holocaust denial has retained its prominence in media, academic, and popular debates. The spectrum of opinions as to how to best deal with denial is starkly divided, with those favoring robust speech protection rejecting any attempts at taking denial any more seriously than the utterances of politically peripheral elements. Those in favor of 1 Quoted in “UN Assembly condemns Holocaust denial by consensus; Iran disassociates itself,” UN News Centre, January 26, 2007, available at http://www.un.org/apps/news/story.asp?NewsID=21355&Cr=holocaust&Cr1 (last accessed March 31, 2008). 2 Kofi Annan, quoted in “Annan condemns Holocaust denial,” BBC News, January 27, 2007, available at http://news.bbc.co.uk/1/hi/world/europe/4653666.stm (last accessed March 31, 2008). 3 CEU eTD Collection “Berlin seeks to bar Holocaust denial in EU,” International Herald Tribune, January 12, 2007, available at http://www.iht.com/articles/2007/01/12/news/germany.php (last accessed March 31, 2008). The legislation proposed to harmonize the European juridical responses to denial. The outcome reached later the same year (allowing national legislation to take precedence) represented what many saw as a watered down compromise. “EU adopts measure outlawing Holocust denial,” International Herald Tribune, April 19, 2007, available at http://iht.com/articles/2007/04/19/news/eu.php (last accessed March 31, 2008). 4 Quoted in “Iranian leader: Holocaust a 'myth',” CNN, December, 14, 2005, available at http://www.cnn.com/2005/WORLD/meast/12/14/iran.israel/ (last accessed March 31, 2008). 5 The Conference, in the words of Iranian Prime-Minister Manouchehr Mottaki during opening remarks, sought “neither to prove nor to disprove the Holocaust.” The speech
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