chapter 2 - Stiftung "Erinnerung, Verantwortung und Zukunft"

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FREEDOM OF EXPRESSION AS A CORNERSTONE HUMAN RIGHT as well as on denying the Holocaust or other genocides. Nowhere are the substantial differences in the ways states will restrict hate speech clearer than in the European Union. EU countries have approached hate speech in a variety of fashions, from strong restrictions in France and Germany, to the greater protections offered to different types of speech in the UK or Hungary. Holocaust Denial Policies Holocaust denial laws proliferated in Europe through the 1990s to the present. In early 2007, Germany pushed for an EU-wide ban on denying the Holocaust. In 2006, the French National Assembly passed, by a vote of 106- 19, a draft law that made it an offense to deny the existence of the 1915 Armenian genocide, punishable by five years in prison and a € 45,000 ($56,400) fine. In 2006, Holocaust denier David Irving was arrested and detained in Austria, adding further confusion and tension to the question of criminal speech. Whether these Holocaust denial laws are responses to a genuine incitement to genocide is highly debatable. It may be more appropriate to see them as political statements, primarily against anti-Semitism. However, from this standpoint existing hate speech regulations would serve the purpose of setting boundaries and common values. A blanket ban on denial of the Holocaust, or, for that matter, any other genocide or historical event, raises multiple issues and its actual impact is highly questionable. First, this type of ban goes beyond the established international law standard of incitement to hatred by elevating a historical event to dogma and by prohibiting a category of statement, regardless of the context or impact. The French Armenian genocide draft bill, for example, would create taboos and stifle potentially dissenting or controversial research and publications. Second, prosecutions under Holocaust denial laws actually augment the appeal of “revisionist historians,” providing them with high-powered platforms and casting them as dissidents against the state, which loses its moral high ground. The arrest of British Holocaust denier David Irving gave him a level of international prominence that he had not previously enjoyed. It also made him a martyr in the eyes of his followers. 10 Third, government use of genocide denial laws to stifle critics should also be cautionary. In Rwanda, charges of “negationism” (in essence genocide-denial) or incitement to hatred are frequently launched against perceived opponents and critics of the government, including journalists, in order to silence them. 11 Fourth, there is the difficult challenge of defining precisely and narrowly in law what constitutes Holocaust denial, a requirement under international law for any legitimate restriction on freedom of expression. Most Holocaust denial laws go beyond the key facts recognized by leading courts, such as the existence of the gas chambers and the genocide against the Jews. For instance, the European Court of Human Rights found France in breach of its obligation to respect freedom of expression when it convicted two citizens who had contested the legitimacy of the judgment against wartime leader Marshal Pétain for collusion with the Nazis. The European Court of Human Rights specifically noted: [The impugned statements form] part of the efforts that every country must make to debate its own history openly and dispassionately. The Court reiterates in that connection that … freedom of expression is applicable not only to “information” or “ideas” that are favorably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. 12 Finally, where instances of Holocaust or genocide denial do willfully incite racial hatred, general hate speech 10 In Britain itself, which does not have a Holocaust denial law, David Irving was thoroughly and dramatically discredited when he unsuccessfully sued historian Deborah Lipstadt for describing him as a Holocaust denier in 1998. 11 Amnesty International, Report 2008, accessed on Jan. 18, 2010 from http://www.amnesty.org/en/region/rwanda/report-2008 . 12 Lehideux and Isorni v. France, para. 55. Although the events took place before the Gayssot Law was passed, and so the case did not formally involve France’s Holocaust denial law, they clearly fell within its scope. Stiftung EVZ HUMAN RIGHTS AND HISTORY: A CHALLENGE FOR EDUCATION 103
Agnès Callamard laws can be used to prosecute the perpetrators. In November 2008, the French parliament recognized that “memory laws” were not an appropriate mechanism for national memory. A report made public in November 2008 indicated that it is not the role of Parliament to adopt laws which pre-judge the relative importance or value of historical facts, particularly when such laws include criminal sanctions. The report was commissioned by the French National Assembly as part of the work of a mission of inquiry (Mission d’information sur les questions mémorielles) and was adopted unanimously. 13 Historians and other scholars have also maintained that it is not the business of any political authority to define historical truth and to restrict the liberty of historians through penal sanctions. The Appel de Blois, adopted by internationally recognized historians, called on politicians not to adopt, through legal means, “state-led truths” which undermine intellectual freedoms. 14 Memory laws too often end up elevating history to dogma, thus preventing and punishing research and debate. They legally silence potentially dissenting or controversial research and publications, create taboos, and reinforce an overall atmosphere that effectively stifles controversial research. The risks inherent in criminal laws on “historical” truths are particularly evident in Turkey, where a large number of authors, journalists and academics have been prosecuted for their writings on the Armenian genocide. Some of these individuals have been murdered. For instance, many writers, including the Nobel laureate Orhan Pamuk, have been tried for insulting “Turkishness” under Article 301 of the Turkish penal code, which prohibits a range of criticisms. The cases rest on statements or publications explicitly or implicitly recognizing the 1915 Armenian genocide, a major taboo under both Turkish law and within the country’s political culture. In January 2007, Hrant Dink, a Turkish journalist of Armenian descent, was murdered in front of his office, allegedly by an extreme nationalist. He was the editor of the bilingual weekly Agos and one of the most insightful commentators on Armenian-Turkish relations. In October 2005 Mr. Dink had been convicted under Article 301 and received a six-month suspended sentence. In the month preceding his murder, Dink had strongly criticized the French bill on the denial of the Armenian genocide: We should not be a pawn for the irrational attitude between the two states. I am being sued in Turkey, because I said that there was genocide, which is my own belief. But I will go to France to protest against this madness and violate the new French law, if I see it necessary, and I will commit the crime to be prosecuted there. 15 In fact, these “memory laws” have very little to do with the right to truth. The duty to memory requires full disclosure of official and historical archives and access to information on human rights violations without restriction. It does not require criminalizing what may be considered “untruths” unless these incite hatred or violence. Striking the Balance: Freedom of Expression and Hatred Fundamental to the protection of human rights are the principles of the inherent dignity and equality of all human beings and the obligation of all Member States of the United Nations to take measures to promote “universal respect for, and observance of, human rights and fundamental freedoms for all, without distinc- 13 For a French version of the report on the memory laws, see http://www.assembleenationale.fr/13/dossiers/mi_questions_memorielles.asp, accessed on Jan. 18, 2010. 14 See http://www.lph-asso.fr/actualites/50.html, accessed on Jan. 18, 2010. 15 See http://www.democracynow.org/article.pl?sid=07/01/23/1530254, accessed on Jan. 18, 2010. 104 Stiftung EVZ HUMAN RIGHTS AND HISTORY: A CHALLENGE FOR EDUCATION
Page 1 and 2: RESPONSES TO THE EXPERIENCE OF INJU
Page 3 and 4: Heiner Bielefeldt The principle of
Page 5 and 6: Heiner Bielefeldt little sensitivit
Page 7 and 8: Heiner Bielefeldt An Ongoing Projec
Page 9 and 10: Otto Böhm FREEDOM OF EXPRESSION AS
Page 11 and 12: Otto Böhm These strict guidelines
Page 13 and 14: Otto Böhm Michael Kohlstruck has u
Page 15 and 16: Otto Böhm “State Speech - Hate S
Page 17 and 18: Otto Böhm Menasse noted, the court
Page 19 and 20: Agnès Callamard ment of every man.
Page 21: Agnès Callamard Fundamental reform
Page 25 and 26: Agnès Callamard to make a positive
Page 27 and 28: Patrice G. Poutrus The 1953 Asylum
Page 29 and 30: Patrice G. Poutrus to asylum was hi
Page 31 and 32: Patrice G. Poutrus nations were adm
Page 33 and 34: Aidan McQuade FROM ABOLITION TO ERA
Page 35 and 36: Aidan McQuade some governments to t
Page 37 and 38: Aidan McQuade hoods, impoverishment
Page 39 and 40: Aidan McQuade invisibility of force
Page 41 and 42: Aidan McQuade treatment in the econ
Page 43 and 44: Aidan McQuade nary people from anci
Page 45 and 46: Günter Saathoff persons. Fritz Sau
Page 47 and 48: Günter Saathoff For several decade

chapter 2 - Stiftung "Erinnerung, Verantwortung und Zukunft"

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