Dort, wo man Bücher verbrennt, verbrennt man auch am Ende Menschen.

Your starter for ten, this morning, is to read this over at Devil’s Kitchen, and then this article from the Financial Times.

Yes, you are reading that correctly. DK was right on the money when he picked this up a couple of months back and the European Union is seeking to make Holocaust denial a criminal offence punishable by up to three years imprisonment. Three years in prison simply for expressing wrong-heading, ahistorical, and easily debunked dissent.

Why? What possible purpose can this serve? What are the European Union trying to achieve here?

The suggestion that the Holocaust was a lie is one of such manifest absurdity that the very last thing we should be doing is trying to ban people from expressing such opinions. Since when did it become the job of governments to try prevent people form making complete and utter arses of themselves and telling the world that they’re a bunch of fascist, Jew-hating, nut-jobs. If anything we should be encouraging them speak up, simply because it makes it stupidly easy to identify and ridicule the scumbags. I mean, come on, if you recall my little expose of Sandwell BNP councillor Simon Smith’s Stormfront alter-ego, ‘Steve Freedom’ then you may recall that one of his more absurd Holocaust denying ‘suggestions’ was this one:

The so called eye witness testimony was a stumbling block for me a couple of years ago. Since maturing in my outlook as to how the world works, I realise that those who say they witness “gassings” etc and the like are:

1/Deluded

2/Or liars including

a)Those who would extrapolate from genuine hardship experienced, to fictional “genocide”

b)Those who are paid.

3/Forced under torture to “confess”

Fuck me, what kind of low grade moron would believe crap like that?

Well okay, Smith, obviously – but then that’s rather the point here isn’t it?

One of the primary reasons why he posted nonsense like that on under an on-line pseudonym is precisely because if his constituents realised he held views like they’d see him for the fascist scumbag he is and vote for someone with a considerably better grasp of reality and historical truth than a casual acquaintance with it.

I’m not going to go over the ground that DK’s already covered, it’s enough to say that I also have a copy of the same framework document that he saw when writing his original articles on the subject, the author of which is cited in the document’s properties as Claudia Gualtieri, a legislative officer with the European Commission’s Justice, Freedom and Security division (Criminal Justice) and have now obtained the latest version of the document, which contains some changes – most notably provisions that would have forced the UK to reinstate provisions removed from the Religious and Racial Hatred Act by the House of Lords, covering insulting and abusive behaviour, have been toned down and now appear to optional.

Having obtained these documents, I have no problem whatsoever with publishing them by making them available for download. The Ministry of Truth is published, physically, in California – which is where the servers on which it is hosted reside – and but for any matters of libel, entitled to the full protection of the First Amendment of the United Constitution, which I will invoke should any attempt be made to suppress publication by mean of litigation. Any such litigation must, of course, be filed in the appropriate jurisdiction, i.e. the State of California.

And so, without further ado, this is the first document, which is dated 27th May 2005 –

racismxenophobiaframework.rtf

And this is the latest version, obtained today –

st08544-latest-rx-text-1.rtf

Despite the apparent assurances given to the FT by EU ‘diplomats’:

Diplomats stressed the provision had been carefully worded to include only denial of the Holocaust – the Nazi mass murder of Jews during the second world war – and the genocide in Rwanda in 1994.

They also stressed that the wording was designed to avoid criminalising comical plays or films about the Holocaust such as the Italian comedian Roberto Benigni’s prize-winning Life is Beautiful . The text expressly upholds countries’ constitutional traditions relating to the freedom of expression.

The provisions of this framework document do nothing of the sort – remember diplomats do not interpret and apply the law, that’s the job of prosecutors and judges, who may see things very differently when presented with an actual case, especially when the provisions themselves are so vaguely worded as to include, as an offence, the act of ‘grossly trivialising’ genocide – so as I am aware the terms ‘grossly trivialising’ has no particular status or clear definition in the UK’s common law and will be a matter to determined by the judiciary should these provisions be foisted on the UK as and when a case arises. Such assurances are, consequently, not worth the cost of the phone call it, presumably, took the FT to obtain them.

The FT’s article also states that:

In an attempt to assuage Turkish fears, several EU diplomats said the provisions would not penalise the denial of mass killing of Armenians by Ottoman troops in the aftermath of the 1915 collapse of the Ottoman empire. Turkey strongly rejects claims that this episode amounted to genocide.

This may well be the case for the time being as, irrespective of the manner in which the framework document actually defines genocide – which is by reference to the Rome Statute of the International Criminal Court and the Charter of the International Military Tribunal that sat at Nuremburg following World War II – the assurance that only the Nazi Holocaust and the Rwandan Genocide will be covered rests on questions of official international recognition – hence the exclusion of events during the Bosnian conflict, which have not been officially recognised as genocide.

But can one reasonably give such an assurance for the future?

No, of course not. In fact, the wording of the provisions on genocide in the framework document amount to an open invitation to interested parties to seek to use the courts to create precedents in order redefine certain historical events in terms of genocide.

No court has ever ruled on the matter of whether the mass killings of Armenians by Ottoman troops between 1915 and 1917 should be considered to be an act of genocide, not least because the term itself had not been defined when these events took place – the term was not, in fact, coined until 1943, by the Polish-Jewish legal scholar Raphael Lemkin.

Irrespective of the claims of EU diplomats, several EU countries, including Austria, Belgium,  France, Greece, Holland, Italy, Lithuania,  Poland, Slovakia and Sweden already recognise the Armenian massacres as an act of genocide. Given that, in the first instance, cases of genocide ‘denial’ will be brought before national courts, it seems impossible that Turkey’s refusal to acknowledge the Armenian massacres as a genocide will not be an issue, given that in 10 EU states these events are already defined in terms that would allow Turkish nationals to be prosecuted for following the line set by their own government.

It should also be remembered, in addition, that one of key purposes of this framework is to harmonise national laws in order to facilitate ‘judicial cooperation between Member States’ – which one can take to mean amongst, other things, ensuring that offences of genocide denial committed in one member state can be tried in another or facilitating the extradition of individuals between member states to stand trial for such offences – hence:

9. Approximation of criminal law should lead to combat racist and xenophobic offences more effectively, by promoting a full and effective judicial cooperation between Member States. The difficulties which may exist in this field should be taken into account by the Council when reviewing this Framework Decision with a view to considering whether further steps in this area are necessary.

But that will only work fairly if their is a uniform definition of which event do, and do not, constitute genocide for the purposes of this law.

As things stand, a Turk, living perfectly legally in Britain, who makes a blog post denying that the Armenian massacres constitute a genocide or even took place, could not be prosecuted, even if this law were to come into force, simply because the UK does not recognise these events as being genocide. What is unclear however, is whether the combination of this law plus those that allow for fast-track extradition between EU member states could result in our hypothetical Turkish blogger being extradited to France, Austria, or any of the other EU states that officially recognise the Armenian massacres as a genocide, should that country decide to mount a prosecution because their blog can be read by that country’s citizens via the Internet.

In the circumstances, and with so many unresolved matters arising from the vagaries of the proposed legislation, it is impossible to give any clear assurances that this legislation will not affect Turkey’s accession to the European Union, unless the EU is prepared to give Turkey and undertaking that the Armenian massacres with be afforded a blanket exemption from recognition as genocide across the entire EU, compelling 10 member states in the process to alter a position on recognition that they have already adopted.

Without wishing to sound too conspiratorial here, what this looks like to me is an object lesson in how to drive a wrecking ball through Turkey’s accession to the EU without taking the blame for it.

Germany, which is the main sponsor of this legislation – although its actually based on Italian proposals that failed to gain support in 2001 – and has made it the centrepiece of their Presidency of the EU well known to be rather cool on the matter of Turkey joining the EU as a full member. In 2004, Angela Merkel, who is now the German Chancellor, suggested that Turkey should be offered only a ‘privileged partnership’ with the EU and not full member. A poll by FG Wahlen, in November 2006, showed that 61% of Germans opposed Turkish accession to the EU and by far the majority of the race relations problems and incidents of racially-motivated violence in Germany in recent years have involved attacks on Turkish economic migrants.

However, in 2005, Germany stopped short of formally recognising the Armenian massacre as genocide. The Bundestag, instead, passed a resolution apologising for any German responsibility for those events that, in addition, “honors and commemorates the victims of violence, murder and expulsion among the Armenian people before and during the First World War” and notes that “many independent historians, parliaments and international organizations describe the expulsion and annihilation of the Armenians as genocide”.

To me that looks like a near perfect set-up, one that allows the Germans to drive through legislation that cannot result in anything but further delays and problems in moves towards Turkey joining the EU, without being seen to be a direct barrier to accession – blame the notorious liberal Swedes instead, as they’re the one who actually recognise an Armenian genocide, not us.

There is something else that’s puzzling me in regards to the assertion that this legislation has been carefully drafted such that it would only apply to denial of the Holocaust and the Rwandan genocide. If that is true, then why does the legislation cover not only genocide – which is a quite specific term – but also the much more generic ‘crimes against humanity’ and ‘war crimes’, the application of which is infinitley broader that that of genocide.

Even if one takes the view that the Armenian massacre or the events of the Bosnian war, to give but two examples – there are many more including the mass killing of  Bangladeshi civilians by Pakistani forces during the ‘Bangladesh Liberation War‘ of 1971, which could become of particular relevance to the UK – can one also exclude these events from the category of crimes against humanity, which the Rome Statute defines as:

… any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

( a ) Murder;

( b ) Extermination;

( c ) Enslavement;

( d ) Deportation or forcible transfer of population;

( e ) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

( f ) Torture;

( g ) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

( h ) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

( i ) Enforced disappearance of persons;

( j ) The crime of apartheid;

( k ) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Of course not, and yet these fall squarely within the purview of this legislation.

Sorry, but in no reasonable sense whatsoever can one rationally make the assertion that legislation whose scope, as written, covers the full extent of genocide, crimes against humanity and war crimes means that only the Nazi holocaust and the Rwandan genocide are actually covered by its provision unless you are liar so well practised in mendacity as a matter of routine that you have absolute contempt for the intelligence of the citizenry of the European Union.

This is an absolutely monstrous piece of legislation that, in it passes into law, sets an appalling precedent in as much as its purpose is to criminalise dissent.

Goodbye freedom of expression. Hello thought-crime.

It is right that we should work to combat racism and xenophobia, but censorship, particularly when based on criminal sanctions, is not the way to do.

Prohibition, in general, does not work, least of all when it comes to ideas. Banning the expression of certain ideas merely drives those ideas underground, giving them the status and allure of being ‘forbidden knowledge’. Put simply, if you want to fan the flames of Holocaust denial and ensure that its spreads as widely as possible then there is no better or more effective way of doing so than by trying to suppress those idea by means of legal suppression and criminal sanctions. As the American educator, historian and President of Yale University, Alfred Whitney Griswold, observed:

“Books won’t stay banned. They won’t burn. Ideas won’t go to jail. In the long run of history, the censor and the inquisitor have always lost. The only sure weapon against bad ideas is better ideas.”

Forget the fine words about combatting racism and xenophobia and do not, whatever you do, be taken in by the claim that this legislation is only about banning Holocaust denial. The book-burners are back and we oppose them and their works at every turn because, as the German poet Heinrich Heine observed:

“Dort, wo man Bücher verbrennt, verbrennt man auch am Ende Menschen.”

Where one begins by burning books, one will end up burning people.

  • You make a much better case than Devil’s Kitchen or Iain Dale, which is hardly a surprise. But I don’t think that there is much evidence that banning Holocaust Denial ‘fans the flames’ of it and spreads it more widely. For example, in Germany, there are laws against Holocaust Denial. In Egypt, there are no laws against holocaust denial, and the Protocols of the Elders of Zion is the basis for a TV series. In which country do more people think that the holocaust was a hoax?

    There is a difference between thick Nazis of the kind that you cite, and more sophisticated ‘revisionists’ such as David Irving. It’s worth remembering that Irving’s arguments were demolished in a court of law, where it was possible to have the debate about historical truth and finally nail him. You and I may think that denying the Holocaust is a lie of manifest absurdity, but it took a team of expert historians several months to be able to take apart his arguments. Unless people like that are challenged and exposed, their revisions undermine public knowledge of what happened. At the moment people think that open holocaust deniers are fascist scumbags, but it would be unwise to assume that this will always be the case if the people trying to undermine the truth about the Holocaust are not challenged.

    I’m not convinced that the legislation is proof from being misused in the ways that you mention, and am ambivalent about whether such a law is overall a good idea. But Germany today is not a police state where people are locked up for committing ‘thought-crime’, and not all ideas flourish when they are banned.

  • With respect Don, comparing Germany with Egypt is rather an apples and oranges comparison.

    Germany’s prohibition on Holocaust denial may have been a useful expedient in the immediate post-war era is assisting to slough off the past but, 60+ years on, I doubt that it is today either necessary or useful simply because the character of the mainstream public discourse in Germany on the Holocaust has altered fundamentally over that time.

    Egypt and other Arab states, such as Iran, are a very different matter because anti-Semitism is afforded at least the tacit, if not explicit, sanction of the state and, of course, the character of the public discourse is far from being free and open in either country.

    As Griswold correctly said, to fight a bad idea you need a better one – the real fight against racism and xenophobia is the fight against ignorance and our weapon of choice has to be education.

    Banning holocaust denial merely sweeps its under the carpet and into an underground where ignorance and prejudice can all too easily flourish – if the EU wishes to tackle racism and xenophobia effectively then the answer is not criminal sanctions against dissent but investment in education.

    My view has long been that the way forward, for the UK, in policy terms, is the removal of the requirement that schools incorporate religious education into the curriculum and its replacement by a broad-based social education in citizenship.

    Education about religion would form part of that curriculum (although not religious instruction) as would philosophy, especially critical thinking, civics and government and history, particularly as it is relates to the development of parliamentary democracy from Anglo-Saxon law, through the Levellers, Chartists and Suffragettes, right up to the modern day. It is within the scope of such a curriculum, which would run right through schooling from 7 to 16/18 that one would tackle issues such as racism and anti-Semitism, the Holocaust, the slave trade and a host of other matters besides.

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  • Dave Essel

    I liked the Griswold quote. Made me think of another I collected a few months back which defines (for me, at least) the tyranny to come

    Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies, The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for own good will torment us without end, for they do so with the approval of their own conscience.

    – C.S. Lewis

    [I am currently an expat in a land of robber barons and fear a return to the ‘civilisation’ that I read is being created in EUSSR]

  • Ah yes. Lewis’ comments on tyranny I know well. In fact I think I’ve used them in the past in a different post.

  • We agree that education is important in tackling anti-semitism. But I don’t think you’ve made a case than a ban on Holocaust Denial contributes to ignorance about the Holocaust. It was in court where Irving’s lies got examined and torn to shreds by expert historians, which was one of the biggest aids to public understanding of the Holocaust in the last decade.

    As time passes and the number of survivors of the holocaust decreases, it becomes all the easier for so-called revisionists to undermine public understanding of the Nazis’ crimes with their apparently plausible and well researched – at least to the non-expert – arguments. This can then feed calls for these alternative explanations to be taught alongside the ‘official’ account of the Holocaust. This is already the tactic used by other ideologically motivated right-wing groups such as the creationists.

    Making Holocaust Denial a crime is a signal from the state that historical truth is important and needs to be defended against anti-semitic, ideologically motivated attacks. It is complementary to, not antithetical to, social education.

  • I have to disagree with you here, Don.

    What message does a legal ban on holocaust denial send out if not that the truth – that which is taught – is not sufficiently robust to stand up to scrutiny without the protection of the law to suppress dissenting opinion.

    Therein lies the problem with censorship of this kind – by banning certain ideas one fosters only the notion that these ideas are somehow ‘forbidden knowledge’ – the truth that the ‘powers that be’ do not want you to see. That’s the premise that animates all conspiracy theories, the suggestion that there are truths known only to the powerful and are kept from the public gaze to suit their purposes.

    Conspiracy theories are inherently self-referential – the holocaust is a fiction promoted by a Jewish elite who secretly run the world, the purpose of which is to prevent the people from discovering that the world is run by a Jewish elite. If you impose a legal ban on holocaust denial, all you do is validate that contention because the ban demonstrates that the Jewish elite who secretly run the world have the power and authority to make laws to protect the ‘fiction’ of the holocaust from being challenged.

    You’re right to raise a note of caution about wedge strategies in education, although there is little sign of these creeping in in regards to the holocaust in the manner that they have around creationism and intelligent design.

    The thing is that holocaust denial, like ID, stems from abject intellectual poverty and, as with ID, the answer is to ‘teach the controversy’ but in such a way that one actively demonstrates both the intellectual poverty of the so-called ‘alternative position’ and the workings of the wedge strategy itself.

    Having given this considerable thought in terms of ID, my view now is that it should be taught in schools and as part of the science curriculum, but in such a way to demonstrate where and why it is entirely unscientific. Put ID on the curriculum but get Richard Dawkins to write the syllabus.

    The same principle applies to holocaust denial – we should teach children both about the holocaust and holocaust denial and in such a way that they are shown the mechanics of holocaust denial and how its seeks to distort the truth.

    In fact I take the principle much further and would advocate that the teaching of critical thinking and logical analysis should be as much a mandatory part the school curriculum as the 3 “R’s” – although I suspect that this would be unpopular with politicians and the press as it would make their lives considerably more difficult in the long run.

  • I think your concerns about the hypothetical Turkish blogger finding himself subject to extradition proceedings are a bit misplaced, Unity, at least with the way EU extradition law works at the moment (as I understand it, anyway). He’s in exactly the same position as is a British blogger at present who writes in his blog — accessible from Germany or Austria — that the holocaust never took place. So long as the act complained about — his writing the piece — took place in Britain, he’s safe from extradition. That’s preserved in the proposals, Article 10 (2):

    When establishing jurisdiction in accordance with paragraph 1(a), each Member State shall take the necessary measures to ensure that its jurisdiction extends to cases where the conduct is committed through an information system and:
    (a) the offender commits the conduct when physically present in its territory, whether or not the conduct involves material hosted on an information system in its territory;
    (b) the conduct involves material hosted on an information system in its territory, whether or not the offender commits the conduct when physically present in its territory.

    The effect of that, under current extradition law, is that if either the blogger or the server is based here in the UK, he’s immune from extradition.

    He’s not immune, which he would have been before the new extradition laws came into force a few years ago, if he committed the alleged offence in the jurisdiction that’s seeking his extradition even though it wouldn’t have been an offence here. So he can say what he wants about the holocaust so long as he says it here, but, if he says it in Germany and then returns here, the Germans can ask for him to be sent back there.

    I don’t see that these proposals change that.

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  • Anthony D Jones MA

    “Unity” makes a valid, indeed vital point. If Holocaust Denial becomes European and/or British Law I can see how things will develope.

    “Well, Mr Paxman, I would love to answer your question but due to the restrictions placed on freedom of speech by the “Historical Truth Act 2011″ I am unable to do so for legal reasons.”

    Also, how will it affect genuine historical research? To doubt, for example, whether a particular axe is the actual axe which beheaded Charles I in 1649 is not the same as claiming Charles I died of old age in 1658.