DENIAL IS NOT A CRIMINAL MATTER
Geoffrey Alderman

Jewish Chronicle

Oct 30 2008
UK

Legislating against deniers of the Holocaust is part of a dangerous
trend.

In its issue of October 3, the JC ran the story of the arrest, at
Heathrow airport on an EU warrant issued by the German government, of
a German-born Holocaust-denier, Frederick Toben. Mr Toben is actually
an Australian citizen. No matter; he arrived at Heathrow from the USA,
en route to Dubai. The Metropolitan Police arrested him because the
German government alleges that he has persisted in posting material on
the internet denying or "playing down" the Nazi Holocaust of the Jews.

In 1999, Mr Toben served a term of imprisonment in Germany after
publishing pamphlets denying that mass murders of Jews were carried
out at Auschwitz. Following his appearance before London magistrates
earlier this month, a spokesperson for the Community Security Trust
was quoted as having praised the action of the British authorities
in executing the EU warrant and as having expressed the hope "that
the German law will take its course".

I hope that nothing of the kind befalls Mr Toben. I hope that the
extradition warrant is quashed, so that Mr Toben is once again free to
roam the world denying the Holocaust to his heart’s content. I also
hope that not only will this kind of incident never happen again in
this country, but that the British government will demand that German
(and Austrian) laws criminalising Holocaust-denial are repealed at
the earliest possible moment.

A great deal has been written in the press about Toben’s disgraceful
treatment. My fellow JC columnist Melanie Phillips has rightly
condemned this treatment as a denial of free speech. On October
10, Anshel Pfeffer correctly argued in the JC that prosecuting
Holocaust-deniers is a waste of money, serving only to give these
odious cretins the attention they crave. With all of this I heartily
agree. But my worries about the Toben case go much deeper.

My worries have to do with the alarming tendency of nation-states to
criminalise the past and, in particular, with a wretched proposal
now under consideration by the European Union, to compel EU member
states to enforce particular interpretations of history under the
guise of "combating racism and xenophobia". This proposal emanates
(surprise, surprise!) from the German government, whose justice
minister apparently wants to bring about a state of affairs in which
"publicly condoning, denying or grossly trivialising crimes of
genocide, crimes against humanity and war crimes" would, throughout
the EU, be punishable by between one and three years’ imprisonment.

Ask yourself how such a mad law might be enforced, and with what
result. Ask yourself who will decide whether a particular historical
event amounts to a "genocide". Ask yourself by what grotesque
yardstick a trivialisation of, say, a war crime amounts to a "gross"
trivialisation.

But as you begin to answer these questions, bear the following in
mind. In Turkey, it is currently a criminal offence to assert that
Ottoman treatment of the Armenians 90 or so years ago amounted to
genocide. But in Switzerland it is a criminal offence to assert
the precise opposite. In France, in 1995, the distinguished Jewish
historian of the oriental world and of Islam, Bernard Lewis (born
in Stoke Newington and now professor at Princeton University),
was actually convicted for having written an article (in Le Monde)
arguing that, although the Armenians were brutally repressed, this
did not amount to a genocide because the massacres that took place
were neither government-controlled nor sponsored.

As the distinguished British historian Timothy Garton Ash (a professor
at Oxford) recently reminded us in The Guardian (October 16), according
to a French law promulgated in 2001, slavery has been designated
as a crime against humanity. If, while on holiday in France, I am
overheard casually denying that slavery did in fact amount to a crime
against humanity, do I risk being hauled before the French courts? And
if I escape to England will the boys in blue arrest me here on a
French-inspired EU extradition warrant? Or suppose I declare that
the killing of Palestinians at Deir Yassin in 1948 did not actually
amount to a war crime. If the EU proposal were implemented, would
I face imprisonment, just because I had exercised my professional
judgment in a way that upset Arab propagandists?

The task of the historian is to investigate, confront, challenge and,
if necessary, correct society’s collective memory. In this process,
the state ought to have no role whatever, none at all. Certainly
not in the UK, which delights in presenting itself as a bastion of
academic freedom.