Holocaust denial trumps freedom of expression

In a recent opinion piece, the director of the Simon Wiesenthal Center in Israel, Dr. Efraim Zuroff, called upon the Israeli government and Jewish defense organizations to combat the dangers involved in the "ongoing assault on the accepted Holocaust narrative" taking place in some countries (Haaretz English Edition, January 13 ). He is right. But more vexing than the trends seen among some groups eager to gain political advantage by distorting the prevailing Holocaust narrative, are the stands adopted in respected human rights quarters claiming that restrictions on expression of opinions that deny historical facts are incompatible with principles of international human rights.

Such tendencies cannot be dismissed as mere anti-Semitism or biased historical revisionism. They involve serious legal issues and it is essential for Jewish organizations sensitive to these issues to deal seriously with them.

In particular, I have in mind a "general comment" adopted last summer by the Human Rights Committee, the UN agency in charge of implementation of the International Covenant on Civil and Political Rights. This document states that "Laws that penalize the expression of opinions about historical facts - 'memory laws' - are incompatible with the obligations that the Covenant imposes - in relation to the respect for freedom of opinion and expression." Though the statement does not refer by name to the denial of the Holocaust, it seems quite obvious, in view of earlier discussions in the committee and other similar developments, that it is aimed at laws that exist in a large number of European states (and in Israel as well ) prohibiting just that.

As a participant in a recent United Nations expert seminar on the prohibition of incitement to national, racial or religious hatred, I felt the need to caution against opinions of experts voiced there in favor of decriminalizing views likely to incite against religious or ethnic groups.

These are not isolated cases. In 2007, Spain's constitutional court made a controversial distinction between "justification" and "denial" of the Holocaust, declaring the punishment of plain denial unconstitutional. In 2009, in an important book on the UN Genocide Convention of 1948, Christian Tomuschat, a prominent German scholar of international law, while concurring that attempts to approve or to justify the Holocaust "deserve being repressed and prosecuted," makes a distinction between "qualified denial," which reveals a hostile attitude toward Jews, and "simple denial," which he argued should not be made a criminal offense. The same author considers inconclusive the jurisprudence of the European Court of Human Rights, which has stated repeatedly that negation of clearly established historical facts such as the Holocaust does not constitute protected speech.

A short newspaper article does not allow for analysis of the legal complexities of the matter from the perspectives of either criminal or human rights law. At this stage, the international community as a whole has a clear-cut stand on the subject - the UN General Assembly resolved in 2005 that Holocaust denial should be prohibited - as we are reminded today, as we mark International Holocaust Remembrance Day. This does not mean that such complexities and the views of those voicing doubts about the legality of Holocaust denial laws should be ignored by Jewish institutions and scholars. There has always been a need to strike a balance between respect for freedom of expression and protection of populations endangered by the abuse of that freedom.

Article 19 of the International Covenant on Civil and Political Rights proclaims the right of freedom of expression. But the exercise of such rights may be restricted out of concern for the rights or reputation of "others" and for the protection of public order. Article 20 of the same Covenant provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law. The principal international and regional human rights instruments contain similar provisions, and legislation in several countries prohibiting the denial of the Holocaust - as well as the decisions of international bodies urging the outlawing of such denial - also deal with this issue.

It may in some cases be difficult to establish precisely when denial is innocent enough not to imply advocacy of or incitement to hatred or hostility - or bias or prejudice - toward the victims or their group. But it is not impossible.

Some of the criticism being raised against criminalization of denial tends to make a distinction between denying the Holocaust of the Jewish people - a clearly established historical fact, in the words of the European Court of Human Rights - and other mass killings in the past characterized as genocide. Such a distinction implies the assumption that Holocaust denial is likely to incite to violence, discrimination or hatred against the group that was the victim of the crime, or its members, irrespective of the existence of a clearly detected specific intent. To date, no good-faith denials of the Holocaust have been identified. Decriminalizing such denials would obviously be bad policy from a public interest viewpoint. Freedom of expression should not be invoked to protect incitement, even if the intention to engage in such incitement may sometimes be difficult to prove beyond a reasonable reading of political realities and the consequences of denial.

Prof. Natan Lerner teaches international law at the Interdisciplinary Center Herzliya.