Holocaust Denial, Human Rights and Freedom of Speech

Auschwitz concentration camp

Senior World Affairs Correspondent Elliot Keck discusses and debates with Johannes Schumacher holocaust denial and its relation to the wider debates on human rights and freedom of speech.

Co-authored by Johannes Schumacher

Amidst the criticism of the Conservative government’s move towards withdrawing from the European Convention of Human Rights (ECHR), it is easy to forget that Britain’s stance on human rights is often conceptually different to that of Europe’s.

While the UK, for example, has a strong tradition of not persecuting Holocaust deniers under the pretext of freedom of expression, Germany and France continuously imprison such individuals and have successfully lobbied for the European Union Framework Decision for Combating Racism and Xenophobia in 2007 in which denying or grossly trivialising acts of genocide can be punished by law in all EU member states.

Does, or should, freedom of expression have its limits; and, if so, is the restriction of the right to deny the holocaust one of them? In the context of the current political debate in Britain regarding the ECHR a brief discussion regarding the issue of holocaust denial and its ties to the nature of freedom of expression in continental and British Europe is appropriate.

Johannes Schumacher:

Denying the Holocaust is unquestionably one of the most despicable acts of hatred and undoubtedly an immense insult to any survivors and the entire Jewish community.

When confronted with this incredible ignorance and stupidity it can be easy to let our emotions guide us towards a call for legal punishments. Yet such a law is a disgrace for the liberal tradition of free speech that is a pre-requisite to the existence of Western democracies. It essentially denies the platform of expression to someone who represents a particularly immoral opinion. Our civil-society has abandoned such simplistic notions of ethics two centuries ago when Voltaire declared in a letter to an opponent: ‘I detest what you write, but I would give my life to make it possible for you to continue to write’.

Holocaust deniers should be treated with ridicule and contempt, but they should by no means be punished under the law

By criminalising Holocaust denial we accept a single of version of truth, which is impossible to scrutinise or render. Indeed, this is not only a dangerous mechanism within any judicial system, but also as Noam Chomsky argues a “poor service to the memory of the victims of the holocaust”. It further shuts out the debate around the historical particularities of the genocide itself, since the state apparatus already claims to possess absolute historical certainty.

Paradoxically, the effect of ostracising a notion from the public obscures the issue into something exotic and dark, which ultimately attracts niche anti-Semitic supporters such as the followers of the French comedian Dieudonné. This only highlights that ontological absolutism and censorship on any level is not only counter-productive in terms of its goals, but also a dangerous component of any society. Holocaust deniers should be treated with ridicule and contempt, but they should by no means be punished under the law.

Elliot Keck:

Freedom of expression as a universal, indivisible and impenetrable right is an inherently utopic goal. To live in a structured society it is necessary to accept limits on our freedom both to act and, unfortunate as it may be, to speak. We necessarily accept laws prohibiting libel and slander which, although often abused, are an unavoidable part of structured society. Now we have established this position we can address the question of whether it is acceptable to criminalise the act of holocaust denial.

It is clearly a justifiable legal provision to criminalise the denial of the Holocaust

The issue is not whether holocaust denial should be criminalised and censored on a universal level – this, again, is a utopic goal; there will always be a segment of society willing to engage in the flagrant, despicable denial of one of the most tragic and horrifying events in history. The issue is whether it is acceptable for individual nations to decide to criminalise the act if it is clear that it is in the interest of society to do so. In the case of Germany it is clearly a justifiable legal provision to criminalise the denial of the Holocaust. This is so because of the simple fact that it was the state itself which actively and systematically carried out the act. It is thus right that the state ensures that the version of the history told is as close to the truth as possible, however difficult this may be, and ensures that no one living under its domain actively denies its occurrence.

With the despicable acts of evil committed by the German state not just against Jews but against the disabled, homosexuals and Gypsies among others, it is an important part of the healing process – still ongoing – that the German state dedicates itself to ensuring the memory of the Holocaust is not stained or, in the case of Holocaust deniers, rejected entirely.

Is it worth defending the right of the tiny but often loud-mouthed minority when the harm that Holocaust denial does to victims and family/ friends of victims is so immeasurable and completely unimaginable? It is vital that Germany – and perhaps even Europe as a whole – ensures that the crimes committed against them are held as undeniable fact and truth.

Johannes Schumacher response to Elliot:

Elliot makes an appropriate point that freedom of speech and the absence of holocaust denial are both utopic goals in any society.

Whilst this is an accurate observation, it ignores the possibility of working closer towards any utopic goal. Moreover, absolute freedom of expression is as unrealistic as the goal of nullifying offensive notions and arguments within a society. By equating the ‘healing process’ to minimising offense to a certain group, the issue is simply reflected in utilitarian terms. Yet surely in utilitarian terms, the payoff for limiting emotional distress to one group is far lower than for the act of reducing freedom of expression throughout an entire society.

In the case of the German state, it is indeed its responsibility to protect those vulnerable members of its society, which it violated in the past. It seems strange, however, that this is done through prescribing one version of a historical truth. Our liberal democracies are fundamentally based on inquiry and uncertainty and not on absolute doctrines. We should enquire what is true or not as individuals and it should by no means be dictated by our government.

Any individual who denies the holocaust should be treated with ridicule and contempt, but not with judicial measures

Blindly confiding to the general consensus is a primary human instinct, but not one that has advanced mankind in any way. It is true that denying the Holocaust is an act that causes great distress to members of our society, but this is never an excuse for a state to submerge into the role of the moral censor. As soon as a state has adapted this role, it is grossly difficult to draw the line to which action causes offence or not.

Thus, the point remains that any individual who denies the holocaust should be treated with ridicule and contempt, but not with judicial measures, since this creates the possibility of creating a statehood, which defines itself by censorship. Such a state is far more dangerous than the emotional distress of some of its members.

Elliot Keck’s response to Johannes

Johannes notes that Holocaust denial is an immense insult to survivors and the Jewish community. I actually go against my general disdain for those who fight for political correctness and the general consensus among many that there is some intangible right of people to live without being offended when I put forth my argument.

Nevertheless, the Holocaust is an exceptional case. Ideals and principles are fine but when they reach levels of uncompromising dogmatism they are wholly utopic. Thus, I argue that the Holocaust is an exception to the rule that freedom of expression should include the freedom to offend, as well as of course the freedom to be offended.

I reject the consideration Johannes makes that by criminalising Holocaust denial “we accept a single of version of truth which is impossible to scrutinise or render”. This is not the case. By criminalising Holocaust denial we are far from proscribing one truth. We can analyse, historicise and interpret the Holocaust in a million and one ways without reaching the conclusion that it never happened in the first place. We also protect a group of people who at the hands of European governments and peoples have suffered more than perhaps any other group in history.

Concluding remarks:

In the midst of the debate regarding the ECHR, the polarised issue of the legal status of the Holocaust denial helps to crystallise the real differences between the continental and British perceptions of human rights. As this brief discussion has shown there is perhaps merit in the Conservative government’s proposals to replace the ECHR with a British Bill of Rights. The issue of the legality of Holocaust denial helps illustrate this point although is of course only one very restricted facet of this debate.