Denial Laws Prove the Story Cannot Withstand Scrutiny

The argument is that legal protection equals evidential weakness, with the corollary that the willingness of governments to criminalise denial is itself proof that denial would otherwise prevail. The argument confuses two different things: the evidential standing of a historical event, and the political-legal judgement that public denial of that event constitutes a sufficient social harm to warrant legal restriction. The two questions are independent. Many historical events of overwhelming evidential standing are not subject to denial laws (the Battle of Waterloo, the assassination of Archduke Ferdinand, the moon landings, the Asian tsunami of 2004); their evidential standing does not need legal protection because no socially harmful denial industry has grown up around them. The Holocaust is the subject of denial laws not because its evidence is weak but because its denial has been the central organising activity of the post-war neo-Nazi movement, and because the European states that adopted denial laws judged that the social harm of allowing the denial to circulate freely was greater than the political cost of restricting it. The judgement is contestable on liberal grounds (and is contested in some serious quarters); it has nothing to do with the evidential standing of the underlying event.

What the denial laws are

Holocaust denial laws exist in approximately seventeen European countries, with substantial variation in scope, sentence and application. Germany’s Strafgesetzbuch §130 (the Volksverhetzung law, “incitement of the people”) criminalises denial of the Holocaust as part of a broader law against incitement of hatred against ethnic, religious or national groups, with penalties up to five years’ imprisonment. France’s Loi Gayssot of 13 July 1990 specifically criminalises the contestation of crimes against humanity as defined by the Nuremberg Tribunal, with penalties up to one year and substantial fines. Austria’s Verbotsgesetz of 1947, amended in 1992, criminalises denial of National Socialist crimes with penalties up to ten years (twenty years in aggravated cases). Belgium, Luxembourg, the Netherlands, Switzerland, the Czech Republic, Slovakia, Hungary, Poland, Romania, Lithuania, Latvia, Greece and Liechtenstein have variously framed laws. The UK does not criminalise Holocaust denial as such, although it can be prosecuted under broader incitement-to-racial-hatred laws if the denial constitutes such incitement. The United States does not criminalise Holocaust denial, since the First Amendment’s free speech protection generally prohibits content-based restriction on political speech.

The variation in approach reflects the different legal and political traditions of the relevant states. Germany and Austria, the successor states of the regime that committed the crime, have the most restrictive laws and the most settled view that public denial of the Holocaust constitutes a continuing threat to the democratic order built on its repudiation. France’s Loi Gayssot was passed in response to the Robert Faurisson case and the wider pattern of denial activity in French academia; Belgium’s law (1995) was passed in response to the activity of the Vlaams Blok and other far-right movements. The laws are politically contested in their own jurisdictions and have been challenged on free-speech grounds at various points; the European Court of Human Rights has generally upheld them, treating Holocaust denial as falling outside the protection of Article 10 (freedom of expression) under the abuse-of-rights provision in Article 17.

The “scrutiny” claim

The claim that the Holocaust would not survive scrutiny absent the denial laws requires the listener to ignore the actual scrutiny the historical record has been subjected to. The Nuremberg Trials of 1945 to 1949 were the first systematic judicial scrutiny, conducted by Allied prosecutors with adversarial defence representation, with German defendants able to challenge any element of the evidence. The findings of the International Military Tribunal and the subsequent military tribunals were that the killing operations, the gas chambers, the Einsatzgruppen, the Reinhard camps and the wider apparatus had occurred substantially as the prosecution alleged. The Eichmann Trial of 1961 in Jerusalem subjected the documentary record to further adversarial scrutiny, with Eichmann’s defence team able to examine prosecution evidence and witnesses. The Frankfurt Auschwitz Trial of 1963 to 1965 was a German trial of Auschwitz personnel under German law; the defence had full opportunity to challenge the evidence; the convictions were based on what survived that challenge. The Demjanjuk trial in Israel (1986 to 1988) and the subsequent Demjanjuk trial in Munich (2009 to 2011) further tested elements of the documentary record. The Irving v. Penguin and Lipstadt libel case in London (2000) was a non-criminal civil proceeding in which Irving sued Lipstadt for libel after she described him as a Holocaust denier; the court found, after a sixty-day trial in which Irving acted as his own counsel and presented his arguments without restriction, that the historical record was as Lipstadt had described and that Irving’s denial-claims were unfounded. Justice Charles Gray’s 333-page judgment is the most extensive single judicial finding on the evidence for the Holocaust. The Holocaust has been subjected to more sustained adversarial scrutiny than almost any other historical event of the past century. It has not failed under that scrutiny.

The legitimate concerns about denial laws

The denial laws are legitimately contested on liberal-political grounds. The standard objection is that political truth should be established by argument rather than by criminal sanction, and that criminalising any historical claim, however offensive, sets a precedent for political authorities to police historical interpretation. The objection is held by many scholars and journalists who have no sympathy for Holocaust denial, including Deborah Lipstadt herself (who has consistently opposed the criminalisation of denial on principled grounds), Timothy Garton Ash, the late Christopher Hitchens, and many others. The contestation is part of the legitimate liberal debate about how democratic societies should handle the public expression of toxic political claims.

The contestation is, however, a separate question from the evidential standing of the Holocaust. One can hold that the Holocaust occurred substantially as the historical record describes and also hold that denial of it should not be criminalised. The two positions are commonly held together; many of the most rigorous Holocaust historians have been on this side of the legal question. The denier framing collapses the two questions into one, with the implication that opposition to denial laws entails sympathy with denial. The collapse is rhetorical, not analytical.

Why the claim is harmful

The claim is harmful because it inverts the meaning of the legal regime. Denial laws exist because the social harm of organised denial activity has been judged by the relevant democratic legislatures to be substantial; they do not exist because the underlying historical record is weak. The denier framing reads the laws as a confession of evidential weakness, which is the opposite of what the legislative records show. The legislative records of the German, French, Austrian and other denial laws are explicit about the political and social harm reasoning; the evidential standing of the Holocaust was treated as established and not in need of legal vindication. The claim attempts to convert a political-legal judgement about social harm into an admission of evidential weakness, which it is not.

What is the actual evidential record on the Holocaust, and what scrutiny has it been subjected to? Why do the denial laws exist? What do the democratic legislatures that adopted them actually say about their purpose?

See also

• Deborah Lipstadt
• David Irving
• Belgium
• Adolf Eichmann
• John Demjanjuk
• Robert Faurisson

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Sources

• Strafgesetzbuch (German Criminal Code), §130 (Volksverhetzung), Federal Republic of Germany, current version
• Loi n° 90-615 du 13 juillet 1990 (Loi Gayssot), Journal Officiel de la République Française, 14 July 1990
• Verbotsgesetz 1947, BGBl. Nr. 25/1947, as amended 1992, Republic of Austria
• European Court of Human Rights, Garaudy v. France, application no. 65831/01, 24 June 2003, on Holocaust denial and Article 17
• Charles Gray (Mr Justice Gray), Judgment in Irving v. Penguin Books Ltd and Deborah Lipstadt, 11 April 2000, High Court of Justice, Queen’s Bench Division, [2000] EWHC QB 115
• Deborah E. Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory, Free Press, 1993
• Deborah E. Lipstadt, History on Trial: My Day in Court with David Irving, Ecco, 2005
• Richard J. Evans, Lying about Hitler: History, Holocaust, and the David Irving Trial, Basic Books, 2001
• 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, 13:3, 2008
• International Military Tribunal, Trial of the Major War Criminals, Nuremberg, 1947 to 1949
• USHMM Holocaust Encyclopedia, “Holocaust Denial: Key Dates” and “Combatting Holocaust Denial: Evidence of the Holocaust”, https://encyclopedia.ushmm.org