First it was Ernst Zundel who was put behind bars for two years. Then it was David Irving who was sentenced to a three-year term in prison. Their crimes? Stating that less than six million Jews were killed by the Nazis in concentration camps during World War Two. While both the trials produced an uproar in the media, there was a greater hype about the various aspects of freedom of expression after the David Irving trial. Some equated his prison sentence to a blow to freedom of expression, while others praised Austria for imprisoning the “hatemonger”. However, even after all the hype, what didn’t happen was a clarification of the fact whether his imprisonment was really a blow to freedom of expression or not. This post attempts to explain this ambiguity in the context of international and European laws.
First, it is important to understand what Holocaust denial is. Wikipedia, one of the leading electronic encyclopedias, says:
Holocaust denial, or Holocaust revisionism … is the belief that the Holocaust did not occur as it is described by mainstream historiography. Key elements of this belief are the explicit or implicit rejection that, in the Holocaust:
- The Nazi government had a policy of deliberately targeting Jews, people of Jewish ancestry, and the Roma (also known as Gypsies) for extermination as a people;
- Over five million Jews were systematically killed by the Nazis and their allies.
- Tools of efficient mass extermination, such as gas chambers, were used in extermination camps to kill Jews.
The Universal Declaration of Human Rights states:
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
However, this is a resolution not a treaty, which means it is not legally binding. Another covenant, the International Covenant on Civil and Political Rights, which is legally binding on as many as 150 nations, guarantees freedom of expression by saying:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice,
However, there are some limitations to this freedom. These limitations, called “duties” or “responsibilities”, are for:
- The respect of the rights or reputations of others;
- The protection of national security or of public order, or of public health or morals.
Granted these freedoms and limitations, it can be reasonably argued that, as defined by the definition cited above, Holocaust denial is not internationally illegal. Yet, as many as ten countries in Europe have laws prohibiting it.
A look at the European laws reveals that there are at least two legal codes—the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union—safeguarding freedom of expression. Nonetheless, none of these two is legally binding. The former, having been signed by all EU members, has the following restrictions to the freedom of expression:
The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Again, Holocaust denial (according to the above definition) doesn’t constitute an offense according to European laws. This can lead us to the conclusion that Holocaust denial– regardless of the verity of what is claimed–is completely in accordance to the international and European legal codes of conduct. And, any limitations restricting an individual from exercising the freedom of expression in shape of Holocaust revisionism, is an infringement of international law.
Tags: Holocaust, Holocaust Denial, Freedom of Expression, David Irving, Ernst Zundel