EU CRIMINALISATION OF HOLOCAUST DENIAL LEAVES MANY DISSATISFIED
By Tobias Buck in Brussels
FT
April 20 2007 03:00
Denying or trivialising the Holocaust will become an offence across
the European Union as part of a new law to combat racism and xenophobia
that was backed by ministers from the 27 member states yesterday.
Germany, the current holder of the rotating Union presidency and
a champion of the proposal, hailed the agreement as an "important
political signal for the whole EU". Brigitte Zypries, the German
justice minister, said it would force member states – including her
home country – to toughen their laws against hate speech.
The proposal – which member states must transpose into law within
two years – will criminalise public incitement to violence or hatred
against ethnic, national or religious groups, as well as behaviour
condoning, denying or trivialising genocide and crimes against
humanity, provided that such statements are likely to incite hatred
or violence against a certain group.
Both crimes are supposed to carry penalties of up to three years
in jail.
Legal experts and diplomats said it was uncertain whether the
decision would force countries to overhaul their criminal codes
substantially. States such as Germany, France and Austria already
have provisions against Holocaust denial and hate speech that, in
most aspects, are much tougher than the new EU law.
In Germany, for example, the mere display of Nazi symbols like the
swastika or the wearing of Nazi uniform can be punished with up to
three years in jail.
The proposal could be more problematic for Denmark, Sweden and other
Nordic countries, which argue that freedom of speech is more important
than criminalising demagogues.
However, they will not have to look too hard to find loopholes in
the new EU law that will almost certainly allow them to leave their
current free speech laws in place untouched.
Genocide denial, for example, will be punishable only if the
statements are "carried out in a manner likely to incite to violence
or hatred". Lawyers say this is important, since most countries have
laws criminalising hate speech.
In addition, the law makes clear that it will not affect the freedom
of expression or press freedom.
Yet critics are still concerned. Daniel Simons, London-based legal
officer at Article 19, a group that advocates free speech, said
that while the caveats helped, "they merely serve to underline the
irrelevance of the Holocaust denial provision".
He said that there was a danger that states "will misapply this
and will start prosecuting people who have controversial views of
history that might offend a certain group, but that don’t actually
incite hatred".
He added: "It is not necessary to elevate historical events to dogma
in order to prevent discrimination against minorities."
For some minorities the laws are likely to be more offensive than
helpful.
Armenians, for example, will draw no comfort from the fact that
only the Holocaust and incidents of genocide that have been the
subject of UN tribunals are included in the text. This means denying
or trivialising the mass killings of Armenians by Ottoman troops
starting in 1915 will not be punishable – a compromise designed not
to offend Turkey.
Laurent Leylekian, the executive director of the European
Armenian Federation, said the law showed "a great amount of
hypocrisy". Excluding Armenia’s suffering "would be a moral failure
and with this kind of position we should not be surprised if there
is a rejection of the EU in many European countries".
The Baltic countries and other eastern European states were also
unhappy.
Their governments had originally hoped to include a special reference
to Stalinist or communist crimes.
Religious groups may also have cause for complaint after the EU decided
to offer them less protection against incitement to hatred than ethnic
or national groups. As the legal text makes clear, inciting hatred
or violence against Muslims or Jews will only be punished if the
statements form a "pretext" for attacking national or ethnic groups,
for example North African migrants or Israeli citizens.
As diplomats conceded, this will mean that an appeal to kill Germans
or black people would be punished, but a call against Muslims or Jews
would not.