The limits to freedom of expression - Arieh Kovler

Does the denial of crimes against humanity mark the outer limit of freedom of speech? The ongoing dispute between France and Turkey over the Armenian genocide sheds light on a complex and sensitive issue.

In February, France’s Constitutional Council – the quasi-judicial body charged with upholding the Constitution of the Fifth Republic – struck down a bill ‘to prevent the denial of genocides recognised by law’. The bill would have created a new criminal offence, punishable by a year’s imprisonment and a €45,000 fine, of:

‘justifying, denying or trivialising the crimes of genocide, crimes against humanity and war crimes, defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court […] or recognised by France.’

The bill had passed though both the Senate and the National Assembly with cross-party support before legislators referred it to the Council for a ruling.

The government of Turkey protested and threatened France with economic and diplomatic reprisals, responding to the real motivation behind the bill: to make it a crime in France to deny the Armenian genocide, the only other genocide apart from the Holocaust to be formally recognised by the French National Assembly.

Turkey accused the then-French President, Nicolas Sarkozy, of trying to pander to France’s 500,000 ethnic Armenian voters, suggesting this as a possible motive for the bill. However, France also has between 500,000 and a million ethnic Turkish voters; moreover a version of the bill was first introduced in 2006. French politicians claimed to be acting out of a moral duty to prevent the denial of massacres in history, but French suspicion of Turkey and its attempts to join the European Union might also have played a part. The bill was opposed by Amnesty International, which claimed it represented ‘an attempt to curtail freedom of expression’. Since his election earlier this year, President François Hollande has indicated his support for a new genocide bill, echoing the sentiments of his predecessor.

Elsewhere, Štefan Harabin, President of the Slovak Republic’s Supreme Court, drew his own rebukes and threats from Turkey after publicly promising that Slovakia’s new law, which prohibits denial of the Armenian genocide, would be enforced. Mr Harbin said that anyone who denied the genocide – even Turks of official rank – would be sentenced to up to five years in jail.

Diplomatic pressure
Armenian genocide Remembrance Day is marked every year on 24 April. On this day in 1915, Interior Minister Mehmed Talaat signed the order to arrest 250 prominent Armenian intellectuals, businessmen and cultural figures in Constantinople and take them to holding centres. Several hundred more followed them.
A few weeks later Talaat – part of the de facto ruling triumvirate of the Ottoman Empire – signed the Tehcir Law, expelling the Armenian population of the Empire. Armenians were forced out and their property seized. Ottoman soldiers massacred Armenian villages, burying the residents in mass graves. Some Armenians were forced into concentration camps. By 1919, more than a million Armenians had been killed.


'‘Historical or scientific or other facts and debates are best established and proved through open debate and argument, and allowing the clear light of day to shine on weak or false arguments’ '
Kirsty Hughes
Chief Executive, Index on Censorship

At first, the defeated Ottoman Empire recognised the massacres of Armenians and tried some of the perpetrators. However, after Atatürk overthrew the Ottoman regime and founded modern Turkey in 1923, attitudes began to change. Following the Second World War, Turkish academics began to argue that the deportation and massacre of Armenians didn’t constitute ‘genocide’; that reports were exaggerated; or even that events had been justified.

Ensuring that the deportations and massacres weren’t recognised as genocide became a cornerstone of Turkish foreign policy in the late 20th century. Turkey used its role as a NATO member and ally to discourage the United States from recognising the genocide, and placed similar diplomatic pressure on Israel to prevent Armenia from being discussed at genocide conferences. Turks who discuss the genocide have been harassed and, in some cases, faced criminal charges for ‘insulting Turkishness’. However, despite Turkey’s best efforts, though, the Armenian Genocide is increasingly recognised and acknowledged as historical fact, and not just a point of view.

Why is Turkey so hostile to the recognition of the Armenian Genocide? Arguably, it’s partially a matter of national pride. Modern Turkey is supposed to be a rejection of the long-dead Ottoman regime and its crimes. Nevertheless, there remains just enough identification with faded imperial glories for modern Turkish leaders to want to defend its actions. As Turkey has become an increasingly assertive regional actor under the Erdogan government, this defence of its past has become more important.
Reparations are another key concern for successive Turkish governments. Following the Holocaust, West Germany paid substantial reparations to survivors and to the newly-formed State of Israel. Armenian groups have been pressing Turkey for reparations since the 1920 Treaty of Sèvres, and pushing for a return of Armenian property seized by the Ottoman government. Some even propose moving the border between Turkey and Armenia to account for territory lost during the conflict. If the Armenian genocide becomes universally recognised, some in the Turkish government worry that the pressure to pay reparations would become unassailable.

From denazification to genocide denial
The notion of banning genocide denial developed from laws passed in the aftermath of the Holocaust and the Second World War; however, the first denial laws didn’t specifically aim at the Holocaust at all. In the immediate aftermath of the war, the victorious allies began a programme of civic reform known as ‘denazification’, designed to root out Nazism and to prevent it from re-emerging. Denazification laws punished the worst offenders and tried to prevent fascist movements from rehabilitating themselves and retaking power.

Nazi symbols were banned, and publicly supporting the Nazi regime was criminalised. Key to denazification was making Germans and other perpetrator nations understand and acknowledge the crimes committed during the Second World War; therefore, the act of denying, minimising or justifying Nazi atrocities was also made illegal.

Holocaust denial emerged as an organised phenomenon in the early 1960s in America. Historian Harry Elmer Barnes, an opponent of US involvement in the First and Second World Wars, claimed that all of the crimes of the Nazis and Japanese were exaggerations, including: the Holocaust; that there were no gas chambers; and that the Holocaust was merely anti-German propaganda. Following Barnes’ lead, pseudo-academic Holocaust deniers sprung up all over the world: Ernst Zündel in Canada, David Irving in the UK, Robert Faurisson and Roger Garaudy in France.

Holocaust denial found followers among Europe and North America’s increasingly organised Far-Right, acting as its intellectual vanguard and providing the jackbooted neo-Nazis of the 1970s and 1980s with a veneer of credibility. They found fertile ground in the Middle East too; Palestinian President Mahmoud Abbas’ PhD thesis claimed that the Holocaust was exaggerated, and Iran hosted an international conference on Holocaust denial in 2006.

The links between Holocaust denial, fascism and antisemitism encouraged several European countries to clarify or amend their anti-Nazi laws in the 1990s to explicitly criminalise Holocaust denial. After specific Holocaust denial laws became well-established, victims, campaigners and academics argued for similar laws prohibiting the denial of other genocides.

In word but not deed
A number of states consider genocide denial a criminal offence. Sixteen countries – all in Europe, apart from Israel – have laws against Holocaust denial. Hungary was the most recent to join this group, passing a law banning Holocaust denial in early 2010. Later that year, a new right-wing government changed the law to cover ‘the genocides committed by Nazi or communist systems,’ a similar form of words to that used by the Czech Republic. Poland and Lithuania also ban the denial of crimes against the Polish and Lithuanian people committed by either the Nazi or Soviet regimes, although these laws don’t specifically mention genocide. The Swiss penal code makes it a crime to deny, minimise or justify any genocide, as does the law in both Portugal and Lichtenstein. The struck-down French bill was similarly broad.


'‘There are limits to freedom of expression: the justification of a pro-Nazi policy cannot enjoy the protection of Article 10 and the denial of clearly established historical facts – such as the Holocaust – are removed… from the protection of Article 10’ '
European Court of Human Rights, Garaudy v France (2003)

The breadth of such limits is a problematic concept. ‘That there should be limits to freedom of speech is now widely accepted,’ according to former war crimes prosecutor Richard Goldstone, ‘It is for each democracy to decide where those limits should be situated.’ However, such limits can be difficult to define. Kirsty Hughes, Chief Executive of free speech campaigning organisation Index on Censorship, told IBA Global Insight that ‘freedom of expression is a fundamental right and any limits on it should be necessary and proportionate and relate to very serious threats’. Such limits should not be established lightly: ‘criminalising speech and debate is not the route either to good historical understanding or to tackling racial hatred,’ she warns.

Intent to destroy


The term ‘genocide’ itself was coined by Raphael Lemkin in 1943; he invented the word to describe the then-ongoing Holocaust perpetrated by Nazi Germany, and the past massacres of Armenians. The preeminent legal definition of ‘genocide’ is taken from the 1948 UN Convention on the Prevention and Punishment on the Crime of Genocide, and has since been incorporated in to the Rome Statute of the International Criminal Court.
It defines genocide as:

‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a)    Killing members of the group;  

(b)    Causing serious bodily or mental harm to members of the group;  

(c)    Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;  

(d)    Imposing measures intended to prevent births within the group;  

(e)    Forcibly transferring children of the group to another group.’

This description captures a large number of events in history, including the massacres of the Maya during the Guatamalan civil war; the Hutu genocides of Tutsi in Rwanda and Burundi; Serbia’s ethnic cleansing of Muslims in the Yugoslavian civil war; Saddam Hussein’s gassing of Iraqi Kurds; and, of course, the 20th century’s most organised, systematic and inhuman genocide: the Holocaust of the Jewish people during the Second World War.

European Union law does much to encourage the criminalisation of genocide denial. A 2008 EU framework decision on racism agreed that ‘Member States shall ensure that the following intentional conduct is punishable: ‘Publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes’, while allowing Member States to limit this to acts ‘likely to disturb public order or [acts which are] threatening, abusive or insulting’. Index on Censorship opposed the 2008 decision on the grounds that it threatens the right to free expression and could leave the EU open to charges of hypocrisy from authoritarian states. Hughes explained that ‘historical events should not be barred from public discussion, no matter how unpleasant that discussion may be’.

Further afield, Rwandan law forbids the denial of the Rwandan genocide, with a severe maximum sentence of 25 years’ imprisonment.

Although these laws exist on statute books, in some jurisdictions they are almost ornamental; a legislative statement of public policy, rather than a practical law to be implemented. The vast majority of prosecutions have been brought in only a few countries: Austria, France, Germany and Switzerland have been the most active in prosecuting Holocaust deniers.

Former Red Army Faction founder and subsequent neo-Nazi Horst Mahler is currently serving a five-year jail sentence for denying the Holocaust. Jean-Marie Le Pen, the long-time leader of the French National Front, has been convicted for ‘minimising the Holocaust’ in both France and Germany, after calling the gas chambers a ‘detail of history’.

Rwandan courts place a wide interpretation on its genocide denial law, leading to accusations that it is used as a political tool against opponents of the government. Peter Erlinder, a US lawyer and academic who served as Lead Defence Counsel at the UN International Criminal Tribunal for Rwanda, was arrested as a ‘genocide denier’ in 2010, provoking an outcry in the US. Erlinder was eventually freed on bail. Rwandan newspaper editor Agnes Uwimana Nkusi, a critic of government corruption, was sentenced to 17 years in prison for claiming that there were victims on both sides of the Rwandan genocide. In early April, her sentence was reduced on appeal to four years.

In what may be the first successful prosecution for denying the Armenian genocide, Switzerland convicted Turkish politician Dogu Perinçek in 2007 under their denial laws. He is currently appealing to the European Court of Human Rights, claiming that the law is an unjustifiable restriction on his freedom of expression.
 

Proving history
Most common law jurisdictions do not have genocide denial laws, but may still prosecute deniers under racial hatred or incitement laws. This is a relatively frequent occurrence in the UK, Canada and Australia.

In 1984, Canadian schoolteacher James Keegstra was convicted of ‘willfully promot[ing] hatred’ against Jews for teaching his students that the Holocaust was a hoax. Keegstra appealed to the Supreme Court of Canada, claiming the law against promoting hatred was an unconstitutional restriction on his free speech. The Court found that the law did restrict his freedom of expression, but that the restriction was reasonable and justifiable.

The Court reached a different conclusion in the case of Ernst Zündel, a German neo-Nazi resident in Canada and a publisher of pamphlets including The Hitler We Loved & Why and Did Six Million Really Die? In 1988, Zündel was convicted under a law banning the malicious spreading of false information.

Zündel appealed, claiming that the offence itself was a breach of his right to freedom of expression. The Supreme Court struck down the law and cleared Zündel. Ironically, Zündel – who had never been granted Canadian citizenship – was deported in 2003 from Canada to Germany, where he was convicted of Holocaust denial under German law.

The most important UK court case on Holocaust denial was a civil libel action, brought by British Holocaust denier David Irving against historian Deborah Lipstadt and her publisher Penguin Books. Lipstadt’s book, Denying the Holocaust, called Irving a Holocaust denier and a bigot, and accused him of deliberately misrepresenting evidence about the Holocaust. The case was tried using English libel law, under which the burden of proof is on the defendant to show that the libellous comments are true or justified. This forced the defence to prove in court that the Holocaust had happened, and that Irving’s denial of it stemmed from his far-right political beliefs, rather than any historical evidence.

The judgement, presented in April 2000, categorically found that the Holocaust occurred, and that Irving ‘persistently and deliberately misrepresented and manipulated historical evidence’ in order to deny it. Much like Zündel, Irving was eventually arrested in Austria in 2005 for denying the Holocaust and imprisoned there for 13 months.
More complicated was the case of Fredrick Töben, an Australian citizen who ran a Holocaust denial group. Töben was arrested in the UK in 2008 under a European Arrest Warrant (EAW) from Germany for publishing Holocaust denial material on the internet. The tangle of jurisdictions had to be unravelled by the court: Töben frequently put Holocaust denial materials online; he did this in Australia but they were accessible worldwide. The act was a crime in Germany but not under English law. Ultimately, the EAW was quashed and the German prosecutors withdrew an appeal.


'‘That there should be limits to freedom of speech is now widely accepted. It is for each democracy to decide where those limits should be situated’ '
Richard Goldstone
Former war crimes prosecutor

In countries where deniers are rarely prosecuted, genocide denial prosecutions often become complicated human rights cases, with courts forced to balance freedom of speech against the statute and the offence. The Spanish law on genocide denial was tested after the conviction of far-right activist Pedro Varela in 1998. Varela appealed to the Constitutional Court of Spain. The court eventually ruled in 2007 that the genocide denial law itself was unconstitutional – though it left intact laws banning the justifying of genocide.

A consensus across countries and cultures would be helpful, but has proven elusive. ‘International cooperation with regard to genocide denial would be the optimal way to go,’ says Richard Goldstone, ‘but no doubt difficult to achieve. I doubt, for example, whether the US and the EU could find an acceptable formula to satisfy both.’
The most obvious objection to genocide denial laws in Europe is Article 10 of the European Convention on Human Rights, which protects freedom of expression. In 2003, French Holocaust denier Roger Garaudy appealed to the European Court of Human Rights, arguing that France’s denial laws were incompatible with Article 10. The Court disagreed, finding:

‘there are limits to freedom of expression: the justification of a pro-Nazi policy cannot enjoy the protection of Article 10 and the denial of clearly established historical facts – such as the Holocaust – are removed […] from the protection of Article 10 […] Denying crimes against humanity is one of the most acute forms of racial defamation towards the Jews and of incitement to hatred of them.’

That ruling dealt specifically with Holocaust denial, but what are the justifications for more general genocide denial laws? Gregory Stanton of Genocide Watch considers ‘denial’ to be an integral component of genocide itself, the last of his purported eight stages of genocide, and ‘among the surest indicators of further genocidal massacres’. But if denial is an indicator of future genocides, banning it doesn’t mean that the future genocide won’t happen: only that there might be less of a warning beforehand. For Index on Censorship’s Kirsty Hughes, ‘historical or scientific or other facts and debates are best established and proved through open debate and argument, and allowing the clear light of day to shine on weak or false arguments’. She adds that ‘limits on speech and free expression should focus on cases where there is genuine incitement to violence’.

Making the case
Interestingly, almost all of the countries that have laws against Holocaust denial were directly touched by the Holocaust, either as victims or as perpetrators. The same can be said about Rwanda’s genocide denial laws, however partially they are applied.

Attempts to criminalise denial of the Armenian genocide, however, are distinguished by a lack of connection to either the victim or the perpetrator. Denying the Holocaust in Germany is easy to interpret as racism and incitement against Jews – it amounts to a claim of a conspiracy involving millions of Jews and others. This is a harder case to make if a French or Swiss academic claims that the expulsions and massacres of Armenians don’t constitute genocide.

France’s rejected bill is problematic for other reasons; it banned the denial of genocides recognised by the French Assembly, rather than those recognised by a court, making the decision of what constitutes genocide a legislative act, open to political pressures and lobbyists.  

After the Constitutional Council ruling, President Sarkozy ordered the drafting of a new bill that would avoid the Council’s objections. However, it could be too late. The European Court of Human Rights is due to rule on Dou Perinçek’s case against Switzerland’s Armenian genocide denial law.

If Perinçek wins, it is likely to spell the end for broad genocide denial laws inside all the Convention States, including France.



Arieh Kovler is a freelance writer and consultant on policy and public affairs. Raised in London, he lives in Jerusalem and can be contacted at
arieh@ariehkovler.com