If the Holocaust Were True There Would Be No Need for Denial Laws

The argument is the same as the previous leaf in essence: legal protection equals evidential weakness. The argument has appeared in the denial literature for decades and is one of the standard rhetorical moves in the denier toolkit. It is dealt with at greater length on leaf 526. The short answer is that the laws do not exist because the underlying evidential record is weak; they exist because the social harm of denial activity has been judged by the relevant democratic legislatures to warrant restriction. The two propositions are independent. Many evidentially overwhelming historical events are not subject to denial laws (the Battle of Hastings, the moon landings, the assassination of John F. Kennedy, the 9/11 attacks); the absence of denial laws around them does not establish their evidential weakness, and the presence of denial laws around the Holocaust does not establish its evidential weakness.

This leaf addresses the version of the argument as it most commonly appears in popular discourse, distinct from the more formal version on leaf 526. The popular version is shorter, more rhetorical, and more easily refuted by the immediate observation that very many historical events of high evidential standing are not subject to denial laws. The deniers’ argument requires the listener to ignore the existence of these counter-examples.

The asymmetry of legal regimes

The standard counter-examples illustrate the asymmetry. The American moon landings of 1969 to 1972 are subject to a small but persistent conspiracy-theory community claiming the landings were faked. No country has criminalised denial of the moon landings. The historical record (the lunar samples returned by Apollo 11 and subsequent missions, distributed to laboratories worldwide; the lunar laser-ranging retroreflectors still in operation; the contemporary Soviet tracking of the missions; the photographic record; the testimony of the astronauts and ground crew) is overwhelming and is not threatened by the denial. The denial does not have organised political support, is not the central activity of any politically significant movement, and does not produce concrete social harms beyond a marginal degradation of public understanding of the space programme. No legislature has judged the social harm to warrant restriction.

The Armenian Genocide of 1915 to 1923 is subject to active state-sponsored denial by the Republic of Turkey, which classifies the events as a wartime tragedy rather than a genocide. France criminalised denial of the Armenian Genocide in 2012; the law was struck down by the French Constitutional Council on free-speech grounds. Switzerland convicted a Turkish denier under its general race-discrimination laws in 2007; the European Court of Human Rights overturned the conviction in 2015 (Perinçek v. Switzerland), holding that Armenian Genocide denial differed from Holocaust denial in its political and social context and did not warrant the same legal treatment. The European Court’s reasoning is illuminating: it explicitly distinguished the two cases on the basis of the specific political and social conditions in Europe, the specific organisation of the denial movement, and the specific harm-potential of denial in the European context. The Court did not class the Armenian Genocide as evidentially weaker than the Holocaust; it classified the conditions for legal restriction differently.

The Rwandan Genocide of 1994, the Cambodian Killing Fields of 1975 to 1979, the Srebrenica massacre of 1995, and the Bosnian wider campaign are all evidentially established at the same level as the Holocaust by the standards of historical and legal investigation, but they are subject to denial laws in only a few jurisdictions (Rwanda’s own genocide-ideology law applies within Rwanda; Bosnia and Herzegovina’s law on Srebrenica denial applies within Bosnia; some European countries have laws covering the broader category of genocide denial). Their evidential standing is not in dispute; the absence of denial laws in most jurisdictions does not weaken their historical record. The pattern is that denial laws track the political conditions of the relevant jurisdictions, not the evidential standing of the underlying events.

The German and Austrian cases

The German and Austrian denial laws are the most thoroughly developed because Germany and Austria are the successor states of the regime that committed the crime, and because the post-war democratic order in both countries was constitutionally founded on the repudiation of National Socialism. The German Basic Law of 1949 and the Austrian Federal Constitution of 1945 onwards both rest on the proposition that the new democratic states would not allow National Socialism to return. The denial laws are part of this constitutional framework. They exist not because the Holocaust evidence is contested but because the political reconstitution of the relevant societies after 1945 included the legal foreclosure of National Socialist political activity, of which denial of the Holocaust is one form.

The political question of whether such laws are appropriate in liberal democracies is a separate and legitimate one. It has been debated since the laws were passed, particularly in the academic and journalistic communities. The standard liberal objection is that political truth should be established by argument rather than by sanction; the standard counter-argument is that the post-war democratic order in Germany and Austria has specific constitutional features that warrant departures from the standard liberal framework. Both positions are held by serious people. The contestation is part of the legitimate liberal debate; it is not a referendum on the evidential standing of the Holocaust.

Why the claim is harmful

The claim is harmful because it converts the existence of a legal-political framework into evidence about a historical question. The legal framework reflects specific political judgements made by specific democratic legislatures in specific historical contexts; it does not reflect doubt about the underlying historical record. The historical record stands on its own evidence (the German archive, the Allied intelligence record, the demographic accounting, the perpetrator and survivor testimony, the photographic and film record, the wider international historiography), unaffected by the existence or non-existence of any particular legal regime. To use the existence of denial laws as evidence about the historical record is to confuse the two domains. The deniers’ argument relies on this confusion.

What is the evidential standing of the Holocaust on the historical record itself? Why do the denial laws exist? What other historical events of overwhelming evidence are not subject to denial laws, and what does that show?

See also

• Switzerland
• The Photographic Record

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Sources

• European Court of Human Rights, Perinçek v. Switzerland, application no. 27510/08, Grand Chamber judgment of 15 October 2015
• French Constitutional Council, decision n° 2012-647 DC of 28 February 2012, on the law criminalising denial of recognised genocides
• Strafgesetzbuch (German Criminal Code), §130 (Volksverhetzung), Federal Republic of Germany
• Verbotsgesetz 1947, BGBl. Nr. 25/1947, as amended 1992, Republic of Austria
• Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study, Palgrave Macmillan, 2004
• Michael J. Bazyler, Holocaust Justice: The Battle for Restitution in America’s Courts, NYU Press, 2003
• Charles Gray (Mr Justice Gray), Judgment in Irving v. Penguin Books Ltd and Deborah Lipstadt, 11 April 2000
• International Military Tribunal, Trial of the Major War Criminals, Nuremberg, 1947 to 1949
• Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust, Yale University Press, 2001
• Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice, fourth edition, Penguin, 2012, on the legal frameworks for genocide and denial
• Yair Auron, The Banality of Denial: Israel and the Armenian Genocide, Transaction, 2003, with the comparative discussion of denial regimes
• USHMM Holocaust Encyclopedia, “Combatting Holocaust Denial: Evidence of the Holocaust”, https://encyclopedia.ushmm.org