Against the proposed Europe-wide legal ban on genocide denial

I published this letter in the Guardian on 27 January 2015 (scroll down for my letter):

‘The proposals of a European Council on Toleration and Reconciliation report for a Europe-wide ban on genocide denial, as part of a swathe of new legal measures (Jewish groups want EU ban on intolerance, 26 January), are highly problematic. First, it is proposed to ban denial of the Holocaust, but not of other historic cases such as the Armenian genocide or the Palestinian Nakba – although Nakba denial (legally enforced in Israel) is as likely to contribute to antisemitism (a major concern of the report) as is Holocaust denial.

Second, it is proposed to outlaw denial only of any “other act of genocide the existence of which has been determined by an international criminal court or tribunal”. This sounds reasonable, but international courts try individuals, only adjudicating history incidentally; most recent genocide, like historic genocide, has not been tried internationally; and these courts’ operations are highly politically constrained.

The proposed bans will only lead to arbitrary and contested prosecutions which increase polarisation, not reconciliation. It is better to combat genocide denial through argument and evidence.
Martin Shaw
Author, What is Genocide?‘

To expand, there are at least five separate issues here:

1. Banning ideas, however reactionary, as such – rather than when they threaten violence or discrimination – breaches freedom of speech.

2. The report doesn’t say what is to be banned – ‘literal’ denial (of the facts) or ‘interpretative’ denial (whether the events constitute a genocide). My reference to the Nakba illustrates the contentiousness of the latter issue, and the line where legitimate debate and denial gets blurred. I do not think it is possible to legally define this line: it is a matter for historians.

3. Naming the Holocaust as a genocide that can’t be denied, while requiring all other genocides to pass a legal test before their denial counts for the purposes of banning, is inconsistent and protects the memory of the Holocaust while not protecting that of many other historic and contemporary episodes.

3 In any case, there is no international legal framework for recognising genocides and the corpus of international legal decisions is decidedly not robust enough to provide an impartial framework. Many cases cannot be brought before international courts for political reasons, and courts are subject to political pressures in operations, leading them to inconsistent decisions which even involve genocide denial as in the case of the International Court of Justice decision on Bosnia.

4 In the contemporary European context, to legally ban Holocaust denial while not protecting the memory of other genocides such as the Nakba, which matter particularly to Muslim and Arab minorities, can easily be construed as a partisan intervention, and enforcement could easily contribute to polarisation. The incarceration of Holocaust-denying ‘historian’ David Irving in Austria did little good, and the indictment of Muslim Holocaust-deniers in France, say, could actively cause harm.

5 The report is considerably motivated by the desire to stem (indeed ban) anti-semitism. However we know that contemporary European anti-semitism, while rooted in jihadist ideology as well as historic legacies, is hugely stimulated by Israel’s treatment of the Palestinians, as the big spike following last summer’s Israeli atrocities in Gaza showed. Israel has instrumentalised the Holocaust while simultaneously banning commemoration of the Nakba. Netanyahu is now shamelessly instrumentalising the recent genocidal mini-massacre of Jews in Paris. I argue that to weaken anti-semitism, rather than reinforcing these Israeli narratives by banning Holocaust denial, it is necessary to seek a settlement between Israel and the Palestinians and to challenge Israeli ideology. Recognition of the Nakba could be a powerful step in that direction. The European Council on Toleration and Reconciliation would have done better to focus on.this alternative agenda.