A BLANKET BAN ON HOLOCAUST DENIAL WOULD BE A SERIOUS MISTAKE
Timothy Garton Ash

The Guardian
Thursday January 18, 2007

Germany’s intentions are good, but it should take care not to impose
the wrong conclusions from its unhappy past

The German justice minister has proposed that all EU states should
criminalise Holocaust denial and ban the public display of Nazi
insignia, as Germany itself does. The EU’s justice commissioner has
apparently supported her. No reasonable person will doubt their good
intentions, but this would be a big mistake. I hope and trust that
other EU members will put a stop to this deeply unwise proposal,
as they have to similar ones in the past.

Let me be clear about my starting-point. The Nazi Holocaust of the
European Jews was unique. The main historical facts about it should be
known by every contemporary European. Trying to ensure that nothing
like that ever again happens here in Europe (or anywhere else in
the world, insofar as that is in our power) should be one of the
fundamental aims of the EU. As someone who came to European affairs
through the study of Nazi Germany, I can say that this was a major
reason for my personal commitment to what we call the European project.

That a measure is well-intended does not, however, make it wise. The
road to hell is paved with good intentions. And this proposal is
very unwise. First of all, if passed, it would further curtail free
expression – at a time when that is under threat from many quarters.

Free expression is a unique and primary good in free societies; it’s
the oxygen that sustains other freedoms. You must therefore have very
good reasons for restricting it by law.

The German justice minister, Brigitte Zypries, argues that she has
such reasons. Recalling the way in which the anti-semitic words of
Hitler and others paved the way for the horrors of Nazism, she says:
"This historical experience puts Germany under a permanent obligation
to combat systematically every form of racism, anti-semitism and
xenophobia. And we should not wait until it comes to deeds. We must
act already against the intellectual pathbreakers of the crime"
(I translate from a speech posted on the German justice ministry’s
website). So this additional restriction on free expression – an
EU-wide ban on Holocaust denial and Nazi insignia – is justified
because it will make a significant difference to combating racism,
anti-semitism and xenophobia today.

But what is the evidence for that? Nine EU member states currently have
laws against Holocaust denial: Austria, Belgium, the Czech Republic,
France, Germany, Lithuania, Poland, Romania and Slovakia.

That happens to be a list of countries with some of the strongest
rightwing xenophobic parties in the EU, from France’s National Front
and the Vlaams Belang in Belgium to the NPD in Germany and the Greater
Romania party. Self-evidently those parties don’t exist as a result of
Holocaust denial laws. Indeed, the existence of such parties is one of
the reasons given for having the laws, but the laws have obviously not
prevented their vigorous and dangerous growth. If anything, the bans
and resulting court cases have given them a nimbus of persecution,
that far-right populists love to exploit.

The same thing has happened with the imprisonment of David Irving
in Austria. Six years ago Irving lost, in the British high court,
a spectacular libel case that he had himself initiated against the
American historian Deborah Lipstadt, who had described him as "one
of the most prominent and dangerous Holocaust deniers". Mr Justice
Gray concluded that Irving was "an active Holocaust denier". The last
shreds of his reputation as a serious historian were torn apart –
in a country that does not ban Holocaust denial. Now, having served
time in Austria for statements he made there 16 years before, he can
pose as a martyr for free speech and receives renewed publicity for
his calumnies. At a press conference after his release, he reportedly
endorsed the drunken anti-semitic comment of Mel Gibson that "the Jews"
are responsible for all the wars in the world

Now suppose the ban on displaying Nazi insignia had already been in
force EU-wide and the British courts had therefore been obliged to
prosecute Prince Harry for (offensively and idiotically) sporting
an Afrika Korps uniform and swastika armband at a friend’s fancy
dress party. What would that have done to combat Eurosceptic and
xenophobic extremism in Britain? Nothing. Quite the reverse: it would
have been worth thousands of votes to the British National party. And
while we’re on the subject of the swastika, Hindus across Europe are
protesting against the proposed ban, on the grounds that for them the
swastika is an ancient symbol of peace. Meanwhile, the German legal
authorities have got themselves into a ridiculous tangle because a
court in Stuttgart has convicted the manager of a mail-order company
for selling T-shirts showing crossed-out and crushed swastikas. These
might be anti-fascist T-shirts, you see, but they still showed
swastikas and were therefore illegal. And so it goes on, and would
go on even more if the whole EU adopted such measures.

The argument that these well-intentioned bans actually feed the flames
they are meant to quench is, of course, ultimately unprovable, although
circumstantial and anecdotal evidence points in that direction. But
the burden of proof is on the proponents of the ban.

In a free society, any restriction on free speech must have a
compelling justification – and that is not available here.

Holocaust denial should be combated in our schools, our universities
and our media, not in police stations and courts. It is, at most, a
minor contributing factor to today’s far-right racism and xenophobia,
which now mainly targets Muslims, people of different skin colour,
and migrants of all kinds. Nor will today’s anti-semitism be countered
most effectively by such bans; they may, at the margins, even stoke
it up, feeding conspiracy theories about Jewish power and accusations
of double-standards. Citizens of the Baltic states, who suffered
so terribly under Stalin, will ask why only denial of the Holocaust
should be criminalised and not denial of the gulag.

Armenians will add: and why not the genocide that our ancestors
experienced at the hands of the Turks? And Muslims: why not cartoons
of Muhammad?

The approach advocated by the German justice minister also reeks
of the nanny state. It speaks in the name of freedom but does not
trust people to exercise freedom responsibly. Citizens are to be
treated as children, guided and guarded at every turn. Indeed, the
more I look at what Zypries does and says, the more she seems to me
the personification of the contemporary European nanny state. It’s
no accident that she has also been closely involved in extending
German law to allow more bugging of private homes. Vertrauen ist gut,
Kontrolle ist besser (trust is good, control is better). Isn’t that
another mistake Germany made in the past?

Zypries is right: we must learn the lessons of history. But we
must learn the right lessons of history, the ones relevant to a
free, multicultural continent today. "Experience shows," writes the
former attorney general of India, Soli Sorabjee, "that criminal laws
prohibiting hate speech and expression will encourage intolerance,
divisiveness and unreasonable interference with freedom of expression
… We need not more repressive laws but more free speech to combat
bigotry and to promote tolerance." True for India and true for Europe.

From: Emil Lazarian | Ararat NewsPress