Laws Against Holocaust Denial - Overview and Commentary

Overview and Commentary

Scholars have pointed out that countries that specifically ban Holocaust denial generally have legal systems that limit speech in other ways, such as banning hate speech. According to D. Guttenplan, this is a split between the "common law countries of the United States, Ireland and many British Commonwealth countries from the civil law countries of continental Europe and Scotland. In civil law countries the law is generally more proscriptive. Also, under the civil law regime, the judge acts more as an inquisitor, gathering and presenting evidence as well as interpreting it". Michael Whine argues that Holocaust denial can inspire violence against Jews; he states, "Jews' experience in the post-World War II era suggests that their rights are best protected in open and tolerant democracies that actively prosecute all forms of racial and religious hatred."

János Kis and TASZ, in particular András Schiffer feel the work of Holocaust deniers should be protected by a universal right to free speech. An identical argument was used by the Hungarian Constitutional Court (Alkotmánybíróság) led by László Sólyom when it struck down a law against Holocaust denial in 1992. The argument that laws punishing Holocaust denial are incompatible with the European Convention on Human Rights and the Universal Declaration of Human Rights have been rejected by institutions of the Council of Europe (the European Commission of Human Rights, the European Court of Human Rights) and also by the United Nations Human Rights Committee.

Historians who oppose such laws include Raul Hilberg, Richard J. Evans, and Pierre Vidal-Naquet. Other prominent opponents of the laws are Timothy Garton Ash, Christopher Hitchens, Peter Singer, and Noam Chomsky. An uproar resulted when Serge Thion used one of Chomsky's essays without explicit permission as a foreword to a book of Holocaust denial essays (see Faurisson affair). These laws have also been criticized on the grounds that education is more effective than legislation at combating Holocaust denial and that the laws will make martyrs out of those imprisoned for their violation.