The public denial of the Holocaust is a criminal offence in most European countries. The legal instruments vary in their specific drafting; their underlying purpose is the same. They exist because the countries that enacted them have judged, on the basis of the historical experience of the period in which the Holocaust occurred, that the public denial of the Nazi crimes is not a question of ordinary historical inquiry but a specific kind of public conduct that the criminal law has reason to address.
Germany: section 130 of the Strafgesetzbuch
The German criminal-law instrument is section 130 of the Strafgesetzbuch (the Volksverhetzung statute, “incitement of the people”). The statute in its current form criminalises, among other conduct, the public denial, gross minimisation, or approval of the Nazi crimes against humanity. The provision was added to section 130 in 1985 and was significantly extended in 1994 in the wake of a German Federal Constitutional Court decision (the Auschwitz-Lüge case) that had clarified the scope of the previous law.
The statute has been used in many hundreds of cases since 1985. Notable convictions include those of Günter Deckert (the former leader of the National Democratic Party of Germany), Horst Mahler (the former lawyer for the Red Army Faction who became a far-right activist), and Ernst Zundel after his deportation from Canada in 2005. Section 130 is the principal European statutory model and has been a reference for legislation in several other countries.
Austria: the Verbotsgesetz
The Austrian criminal-law instrument is the Verbotsgesetz, the Prohibition Statute originally enacted in May 1945 as a de-Nazification instrument and amended in 1992 to include explicit provisions against Holocaust denial. The 1992 amendment added section 3h, which criminalises the public denial, gross minimisation, approval or justification of the National Socialist genocide or other National Socialist crimes against humanity.
The Verbotsgesetz was the basis for the prosecution of David Irving in 2006, after his arrest at Hartberg in November 2005. He was sentenced to three years’ imprisonment for two speeches he had given in Austria in 1989. The statute is the strictest in Europe in terms of available sentencing: penalties of up to ten years’ imprisonment are available for serious cases.
France: the Loi Gayssot
The French criminal-law instrument is the Loi Gayssot of 13 July 1990, named for its principal sponsor Jean-Claude Gayssot, the Communist Party deputy who introduced it. The Act amended the 1881 Press Law to criminalise the contestation, by any of the means listed in the 1881 Act, of crimes against humanity as defined in the London Charter of 1945. The statute is therefore tied specifically to the Nuremberg-defined offences and does not cover all genocides; it covers the specific historical category of the Nazi crimes.
The first prosecution under the Loi Gayssot was of Robert Faurisson in 1991. The most significant prosecution under it was of Roger Garaudy in 1998, the conviction that produced the European Court of Human Rights ruling in Garaudy v. France in 2003. The statute remains in force.
The European Court of Human Rights
The European Court of Human Rights addressed the question of whether Holocaust denial fell within the protection of Article 10 of the European Convention on Human Rights (freedom of expression) in Garaudy v. France (Application No. 65831/01) in 2003. The Court ruled that Roger Garaudy’s contestation of crimes against humanity, as established in his 1998 conviction, fell outside the protection of Article 10 by operation of Article 17 of the Convention (the prohibition on the abuse of rights for purposes contrary to the values of the Convention). The application was rejected as inadmissible.
The Garaudy ruling is the principal European-jurisprudential decision on the legal status of Holocaust denial. It establishes that European countries that criminalise Holocaust denial do not, in doing so, violate the European Convention. The reasoning has been applied in subsequent cases, including Witzsch v. Germany (Application No. 41448/98) and M’Bala M’Bala v. France (Application No. 25239/13).
Other European jurisdictions
Belgium criminalised Holocaust denial in the Negationism Law of 23 March 1995, in force from 1 April 1995.
The Czech Republic criminalised Holocaust denial in section 260 of the Criminal Code as amended in 2001, with provisions on denial of Communist-era crimes added in 2009.
Hungary criminalised Holocaust denial in 2010, with the relevant provisions in section 333 of the Criminal Code (Act C of 2012).
Liechtenstein criminalised Holocaust denial under article 283 of the Criminal Code in 1998.
Luxembourg criminalised Holocaust denial in 1997.
Poland criminalised Holocaust denial in the Act on the Institute of National Remembrance of 18 December 1998. The Polish provisions cover the denial of both Nazi and Communist crimes against humanity. The 2018 amendment to the Act, which created a controversial provision criminalising the attribution to “the Polish nation” of complicity in Nazi crimes, was substantially amended after international protest in 2018; the prison sanction was removed but the provision remains in modified form.
Romania criminalised Holocaust denial in Emergency Ordinance No. 31 of 13 March 2002.
Slovakia criminalised Holocaust denial in section 422d of the Criminal Code as amended in 2009.
Switzerland criminalised Holocaust denial in article 261bis of the Penal Code as amended in 1995, in force from 1 January 1995.
Israel criminalised Holocaust denial in the Denial of Holocaust (Prohibition) Law, 5746-1986.
The United Kingdom and the United States
The United Kingdom has no specific Holocaust denial statute. Some denier content can be prosecuted under the public-order legislation (the Public Order Act 1986 contains provisions on incitement to racial hatred that have been applied to denier publications) but the threshold is incitement rather than the bare fact of denial. The position has been the subject of public debate since the 1990s; no government has chosen to introduce a specifically tailored statute.
The United States has no Holocaust denial statute and could not constitutionally have one. The First Amendment to the United States Constitution protects political speech, including denier speech, except where it crosses into the established speech-act exceptions (incitement to imminent lawless action, true threats). The American academic and journalistic response to denial has been to engage with it through scholarly publication and public-press refutation.
The argument for and against criminalisation
The case for criminalisation rests on three propositions. First, that Holocaust denial is, in most of its expressions, a vehicle for antisemitic incitement and that the criminal law has a legitimate role in addressing such incitement at its source. Second, that the historical specificity of the Holocaust, and the special responsibility of the European countries in which the Holocaust took place, justifies a specific legal response that is not required for other categories of historical falsification. Third, that the existence of the laws sends a normative signal about the public unacceptability of denier rhetoric that contributes to the broader cultural defence against the resurgence of antisemitism.
The case against criminalisation rests on three counter-propositions. First, that the criminal law is not an appropriate instrument for the regulation of historical inquiry and that the proper response to bad history is good history. Second, that the laws can be used as platforms for denier publicity, since each prosecution becomes a public event that draws media attention to the denier and the denier’s claims. Third, that the laws push denier activity into harder-to-regulate online spaces and to permissive jurisdictions, with no measurable effect on the underlying problem.
The debate is genuine. The legal record of the European jurisdictions that have criminalised denial is mixed: convictions occur, deniers are sentenced, but the underlying movement persists. The legal record of the jurisdictions that have not criminalised denial (the United States, the United Kingdom) is also mixed: deniers operate openly, but the historical profession’s response (Lipstadt, Evans, van Pelt) has produced the most authoritative single repudiation of the denier movement, in the form of the 2000 Gray judgment.
The dedicated denial-claim leaves under “Legal and Political Suppression” elsewhere in this section address the specific denier claim that the existence of the laws is itself evidence that the historical case for the Holocaust cannot withstand scrutiny. The claim is not supported by the legal or historical record.
See also
- Roger Garaudy
- Crimes Against Humanity, a New Concept in International Law
- Robert Faurisson
- Ernst Zundel
- David Irving
Sources
- Strafgesetzbuch (German Criminal Code), section 130 (Volksverhetzung), as amended
- Verbotsgesetz 1947, section 3h (Austrian Prohibition Statute, as amended 1992)
- Loi n° 90-615 du 13 juillet 1990 (the Gayssot Law), Journal Officiel de la République Française, 14 July 1990
- Garaudy v. France, European Court of Human Rights, Application No. 65831/01, decision of 24 June 2003
- Witzsch v. Germany, European Court of Human Rights, Application No. 41448/98, decision of 13 December 2005
- M’Bala M’Bala v. France, European Court of Human Rights, Application No. 25239/13, decision of 20 October 2015
- Polish Act on the Institute of National Remembrance, 18 December 1998, as amended
- Act C of 2012 (Hungarian Criminal Code), section 333
- Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study, Palgrave Macmillan, 2004
- Michael Whine, “Expanding Holocaust Denial and Legislation Against It”, in Communications Law, vol. 13, 2008
- Laurent Pech, “The Law of Holocaust Denial in Europe: Towards a (Qualified) EU-Wide Criminal Prohibition”, in Genocide Denials and the Law, ed. L. Hennebel and T. Hochmann, Oxford University Press, 2011