Table Of ContentOutlawing Genocide Denial
Outlawing Genocide Denial
The Dilemmas of Official Historical Truth
Guenter Lewy
The University of Utah Press
Salt Lake City
Copyright © 2014 by The University of Utah Press. All rights reserved.
The Defiance House Man colophon is a registered trademark of the
University of Utah Press. It is based on a four-foot- tall Ancient Puebloan
pictograph (late PIII) near Glen Canyon, Utah.
18 17 16 15 14 1 2 3 4 5
Library of Congress Cataloging-in- Publication Data
Lewy, Guenter, 1923– author.
Outlawing genocide denial : the dilemmas of official historical truth /
Guenter Lewy.
p. cm.
Includes bibliographical references and index.
isbn 978-1-60781-372-9 (pbk. : alk. paper)— ISBN 978-1-60781-373-6
(ebook)
1. Genocide— Historiography.
2. Criminal liability (International law)
3. Freedom of speech.
4. Historiography— Political aspects.
5. Holocaust denial.
I. Title.
KZ7180.L49 2014
345’.0251— dc23 2014018321
Printed and bound by Sheridan Books, Inc., Ann Arbor, Michigan.
Contents
Preface vii
1. Introduction 1
2. Holocaust Denial Law in the German Federal Republic 8
3. Holocaust Denial under the Austrian Verbotsgesetz 51
4. Genocide Denial Law in Switzerland 66
5. The French Lois Mémorielles 91
6. The Zündel Case in Canada 103
7. International Bodies and Genocide Denial 113
8. Criminalizing the Denial or Affirmation of the Armenian
Genocide 131
9. American Exceptionalism: The Mermelstein Case 140
10. State- Mandated Genocide Education 144
11. Conclusion 154
Notes 165
Index 193
v
Preface
In this book I examine how and why genocide denial laws have been
enacted in Germany, Austria, Switzerland, and France and analyze the jurispru-
dence that has developed with regard to these laws. Other countries also have
criminalized genocide denial, but only these four countries have seen a substan-
tial number of prosecutions for this offense. Practically all of these laws limit their
application to the Holocaust. Only Switzerland criminalizes genocide denial as
such, including denial of the “Armenian genocide,” while Turkey, in an indirect
and haphazard manner, penalizes affirmation of the Armenian genocide claim.
Advocates of this kind of legislation have argued that truth must be
defended against those who distort it or seek to exploit freedom of expression
to incite hatred and threaten public order. The protection of historical truth
and the defense of the democratic state are held to outweigh the protection of
free speech. The downfall of the Weimar Republic and Adolf Hitler’s rise to
power are cited as an example of the grave social risk created by skillful propa-
ganda and the manipulation of public opinion by speech. The blatant lie that
the German Army had not lost World War I but rather had been “stabbed
in the back” by the home front contributed to the victory of the Nazis.
After learning how genocide denial legislation actually works and how the
idea of an official historical truth spreads even into the curriculum of public
schools, readers of this book should be able to form their own judgment
about the validity of these kinds of arguments. My own view of whether
genocide denial laws are compatible with freedom of speech and opinion
can be found in the conclusion of this book.
vii
viii Preface
I owe a great debt to the many persons who helped me obtain the text of
relevant court decisions. Unlike in the United States, European court deci-
sions often are not published. Their release is up to the discretion of judges,
prosecutors, or court clerks. In this connection I am especially grateful to
the following people, who exerted themselves on my behalf well beyond
the call of duty: in Austria, Richterin Petra Schindler-P ecoraro, Vienna;
in Germany, Staatsanwalt Andreas Grossmann, Mannheim; Staatsanwalt
Thomas Steinkraus-K och, Munich; Staatsanwalt Walter Vollmer, Tübingen;
and Staatsanwältin Anne Wickinger, Berlin; in Switzerland, Erste
Gerichtsschreiberin Gabrielle Kremo, Basel; première greffière adjointe
Valérie Midili, Lausanne; MLaw Martina Quadri, EKR, Bern; and content
manager Andrea Schmidheiny, Zurich. I extend my thanks to them as well
as to all others who could not be listed individually for reasons of space.
Also unlike the situation in the United States, when made available to
researchers court decisions in the European countries are often released
with the names of the convicted person and other individuals redacted so
that they are anonymous. Privacy laws are so strict that sometimes even
the names of the judges are blacked out. Nevertheless, in my discussion of
almost all of these cases I have used the names of the accused for two reasons.
First, in practically all instances I was able to learn the names of the
accused from public sources such as books, articles, press reports, and the
Internet. Given this state of public knowledge, I saw no reason to forego
the use of the full name of the convicted person.
Second, in regard to German cases, an additional reason in my opinion
justified the use of the names of the accused. The Federal High Court for
Civil Cases declared in a decision handed down on November 21, 2006
(VI ZR 259/05): “Those who are active in the economic life of the nation
must put up with criticism of their performance. Such criticism includes the
naming of the individual. In these cases the public has a legitimate interest
to learn who the individual is, and the press could not fulfill its essential task
if it were to resort to anonymous reporting.” I believe that what is justified
in regard to the economic life is even more necessary with regard to the
activities of right- wing extremists, the deniers of Auschwitz. These people
“must put up with criticism,” including the naming of names.
Research for this book was supported be a fellowship research grant from
the Earhart Foundation, for which I express my gratitude.
1
Introduction
Seeking to combat neo- Nazi extremism, German courts have
handed down 315 convictions for Holocaust denial under a law enacted in
1994. These convictions resulted in a prison sentence or fine or both impris-
onment and a fine. In most of these cases the convictions also involved the
confiscation and physical destruction of the offending books or pamphlets.
Despite Germany’s well-d eserved reputation for having built a healthy dem-
ocratic system, it is little known that the country thus has developed a system
of censorship that, while limited in scope, is quite inconceivable under the
American First Amendment.
Germany is not the only state to have criminalized genocide or Holocaust
denial, the subject of this book. The German practice of censorship is part of
a recent trend in several European countries to enact laws that establish an
official version of history and at times make it a criminal offense to deny or
question the officially prescribed historical truth. International organizations
like the European Union also have enlisted in this endeavor. In April 2007
the Council of the European Union approved a framework decision, sub-
sequently approved by the European Parliament, that requires all member
states to criminalize denying or trivializing crimes of genocide and crimes
against humanity.
European historians have reacted to this initiative with concern. Two
hundred Italian scholars signed a petition asserting that such a law was
dangerous, useless, and counterproductive and endangered free intellectual
inquiry. In the fall of 2008 the French organization Liberté pour l’Histoire,
1
