Europe’s well-intentioned bans on Holocaust denial have spawned a flurry of imitations — many with sinister consequences.
- By Jacob MchangamaJacob Mchangama is the director of Justitia, a Copenhagen-based think tank focused on human right and rule of law. He tweets @JMchangama.
In 2014, Russian blogger Vladimir Luzgin posted an update on VKontakte, a social media network popular in Russia. The update included this seemingly benign paragraph:
“The Communists and Germany jointly invaded Poland, sparking off World War II. That is, communism and Nazism closely collaborated.”
One hardly has to be a history buff to know that Luzgin’s post was, essentially, factually correct. On Aug. 23, 1939, Nazi Germany and the Soviet Union entered into the Molotov-Ribbentrop Pact, which divided a number of countries — including Poland — into German and Soviet spheres of influence. On Sept. 1, 1939, Germany invaded Poland; sixteen days later, Soviet troops followed suit.
But although Luzgin’s update might have had its facts right, in the eyes of Russian authorities it represented an inconvenient truth, one that complicates the otherwise heroic story of the millions of Russians who fought and died against Adolf Hitler and fascism in the “Great Patriotic War” that Vladimir Putin likes to use for propaganda purposes today. And so, this June, Luzgin was convicted and fined 200,000 rubles under Russia’s recent law against “Nazi rehabilitation,” which prohibits the “public denial of the Nuremberg trials and circulation of false information about the activities of the USSR during the years of World War II.” On Sept. 1 — the anniversary of the German invasion of Poland — Russia’s Supreme Court upheld the conviction.
The Russian law that was applied in this case was originally adopted in 2014 and has consistently been the subject of international criticism, especially from European media and institutions such as the Organization for Security and Cooperation in Europe. Yet Europe’s critics tend to skirt their own inconvenient truth: Such “memory laws” — laws that criminalize deviations from official historical accounts — were pioneered by European democracies and the EU. And they have provided impetus and legitimacy to the mushrooming of similar laws, applied to much more nefarious agendas, in places like Russia, Ukraine, Rwanda, and Bangladesh.
It is, of course, the Holocaust that has been the driver of European memory laws. Most of the laws on the continent prohibit the denial, justification, or trivialization of the crimes committed by the Nazis during World War II, the mass murder of Jews chief among them. According to University of Amsterdam legal scholar Uladzislau Belavusau, “the monumental legal prescription of historical truth has fulfilled a remarkable role in the project of Europe’s unification, with both [the EU and the Council of Europe] building their foundational discourse on the urge to avoid the misfortunes of World War II through European integration and acknowledgement of foundational atrocities.”
France has had a ban on Holocaust denial in place since 1990. Austria’s ban was adopted in 1992, and Belgium’s is from 1995. Germany itself did not adopt an explicit ban until 1994, though it countered Holocaust denial before then through laws against defamation, incitement, and disparaging the memory of the dead. The European Union also took steps in this direction through a joint action adopted in 1996, which obliged member states to take steps toward criminalizing the “public denial” of the crimes that formed part of the Nuremberg trials. Holocaust denial laws were also approved in the 1990s by the European Court of Human Rights (under the Council of Europe), which stated that the negation or revision of “clearly established historical facts — such as the Holocaust — … would be removed from the protection” of free speech under the European Convention on Human Rights. The joint action was given more bite in 2008 with the adoption of a much more detailed framework decision on combating racism and xenophobia.
Given its unprecedented scale, there are compelling reasons for affording the Holocaust a special place in European history, memory, and politics. “Never again” is a fitting raison d’être for the institutions that underpin modern Europe. But it is not clear that “never again” should be accomplished through limiting freedom of expression. It is also clear that these memory laws have been fraught with unanticipated consequences, both in and outside the EU.
With the post-Cold War enlargement of the European Union, new member states joined for which the disaster of World War II was not followed by a new golden era of European integration and liberal democracy but rather by another disaster: communist rule. These states’ most recent experiences with totalitarianism were not genocidal Einsatzgruppen but the brutal and decades-long repression of communism, and some — Lithuania, Latvia, and Hungary, for instance — have adopted laws criminalizing the denial of not just the crimes of genocide or Nazism but also those of communism.
Perhaps this doesn’t seem so bad on its face — both Nazism and communism were horrible regimes, and their atrocities ought to be remembered. But this is where the story becomes complicated. Despite pressure from former communist states, the EU has rejected including the denial of communism’s crimes in its 2008 framework decision. And although the European Court of Human Rights excludes Holocaust denial from free speech protection, it decided in 2015 that Switzerland had violated freedom of expression by convicting a Turkish national for denying the Armenian genocide initiated by the Ottoman Empire during World War I. Accordingly, Europe operates with differing legal standards when it comes to criminalizing the denial of historical crimes.
That is a morally and politically awkward position with severe consequences in the many places outside Europe’s established democracies that have drawn inspiration from the continent’s memory laws. As the Kremlin-funded media outlet RT noted about the Russian law used to convict Luzgin, “the bill’s sponsors also refuted all criticism and said that … many foreign nations, such as Germany, Austria and France already had similar legislation protecting the historical truth as stated by the Nuremberg Tribunal.” In 2015, post-Maidan Ukraine went even further and criminalized not only the denial of the “criminal nature of the communist totalitarian regime of 1917-1991 in Ukraine,” but also the denial of the legitimacy of “the struggle for the independence of Ukraine in the twentieth century” and “publicly show[ing] contempt for” those officially recognized as “fighters for independence of Ukraine.” That law’s preamble refers to various human rights conventions and resolutions by the European Parliament and names as its purpose the protection of human rights and liberties and strengthening the independent, democratic, and constitutional state. Despite these ostensibly noble purposes, the law has been criticized by concerned international and Ukrainian historians, who worry that the law bans criticism or even factual historical accounts of some Ukrainian resistance groups that were involved in mass killings of Jews and Poles during World War II, sometimes in direct collaboration with the Nazis. Moreover, a nuanced discussion of the Soviet era distinguishing between the levels of repression during different periods might also be impeded.
Outside Europe, Rwanda and Bangladesh are examples of how European memory laws have migrated across continents and are being wielded as a weapon by undemocratic regimes. Following the Rwandan genocide in 1994, perhaps understandably, tough memory laws were passed in 2003 and 2008. Today, any person who has “publicly shown, by his or her words, writings, images, or by any other means, that he or she has negated the genocide committed, rudely minimised it or attempted to justify or approve its grounds” risks between 10 and 20 years imprisonment. Human rights lawyer Nani Jansen estimates that as of 2014 the Rwandan memorial laws had resulted in upwards of 2,000 cases being brought; she also notes that they have been used to “restrict a free and open debate on matters of public interest in the country and especially the restrictive effect the laws have had on free speech in the media.” Those convicted under the law include journalists and political opponents of President Paul Kagame. When human rights organizations criticized the broad and vague nature of the country’s law, Rwanda’s then-prosecutor-general shot back at Western critics: “Their narrative is as if this is a draconian law meant to suppress political dissent and freedom of speech. What is not often told however is that the laws of similar nature actually have been in place in a number of European Countries for decades!” He then went on to specifically highlight the EU framework decision, the Holocaust denial laws in European democracies, and the case law of the European Court of Human Rights.
This year, the government of Bangladesh tabled a draft “Liberation War Denial Crimes Act” aimed at settling the historical account of that country’s bloody separation from Pakistan. The Bangladeshi draft law, too, is justified with a reference to European Holocaust denial laws. According to the draft law, undermining, misinterpreting, distorting, disrespecting, or running propaganda campaigns against the official historical account would be punishable with up to five years in prison. According to the government’s official account, the liberation war resulted in the deaths of some 3 million people. However, a number of studies suggest alternative figures ranging as “low” as 200,000 to 300,000 deaths. Yet such historical accounts would no longer be permissible if the bill is passed. Apart from cementing a questionable historical account as unquestionable truth, Bangladesh-based journalist David Bergman also worries that if passed, the law would shore up the current government and be used as a weapon against its opponents.
European memory laws have spread and metamorphosed to the extent that they now serve as the model for criminalizing accurate but nationally inconvenient historical accounts, as well as entrenching deeply flawed alternative histories used as foundations for specific national ideologies and repressive political agendas. This was hardly what the EU and its member states had in mind in the 1990s. But, in hindsight, this development was almost unavoidable in a globalized world, where legal norms spread to countries with very different histories, values, and systems of government.
Given the role that memory laws have come to play in undermining both academic freedom and political speech, the EU should urgently reconsider its approach. The Holocaust can still serve as the low point of modern European history, and its lessons as a focal point for European institutions, without criminalizing its denial. In fact, decriminalizing the denial of genocide and international crimes will only serve to strengthen the very values that have allowed historians to demonstrate beyond doubt the occurrence and magnitude of the Holocaust. That has ultimately been the most effective means of marginalizing deniers of historical truth to the ranks of xenophobes, pseudo-historians, and conspiracy theorists.
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