On International Holocaust Remembrance Day, Katharine Booth considers Holocaust denial and the special legal regime that applies to it in the European Court of Human Rights’ jurisprudence
This blog reflects on the importance of commemorating the Holocaust, especially in the current political climate of rising nationalism, xenophobia, and racism. It also considers the special significance of the Holocaust in European law, in view of the European Court of Human Rights’ jurisprudence with respect to negationism. It refers to Paolo Lobba’s chapter in Law and Memory (edited by Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias) regarding the special legal regime applicable to Holocaust denial under the European Convention on Human Rights.
A Day of Remembrance: International Holocaust Remembrance Day
Today, 27 January 2020, marks International Holocaust Remembrance Day. This day commemorates the 75th anniversary of the liberation of the former concentration and extermination camp Auschwitz, and was designated by the United Nations in 2005 as an International Day of Commemoration in memory of the victims of the Holocaust.
Numerous events have been scheduled across the world to mark the anniversary. Last week, on 23 January 2020, the Fifth World Holocaust Forum on ‘Remembering the Holocaust: Fighting Antisemitism’ was held at Yad Vashem, the World Holocaust Remembrance Centre, in Israel. Attended by world leaders, including French President Macron, Russian President Putin, German President Steinmeier, and US Vice-President Pence, the forum explored the rise of the Nazis to power, the Holocaust and liberation, as well as contemporary anti-Semitism across the globe. Today, up to 200 Holocaust survivors, as well as heads of state and other political dignitaries, are attending a ceremony at Auschwitz.
These commemorations are particularly important at this time, and in the current political climate. The rise of right-wing populist parties in Europe, as well as across the globe, and the corresponding, heightened climate of nationalism and xenophobia, is unquestionably concerning for those who value democratic liberalism. Even in the birthplace of Nazism, in the 2017 federal election, the far-right, extreme nationalist Alternative für Deutschland (Alternative for Germany - AfD) gained significant electoral support and became the biggest opposition party in Germany. The AfD has repeatedly been associated with negationists. Co-chairman of the AfD, Alexander Gauland, provoked outrage in June 2018 by describing Hitler and the Nazi-era as “just bird shit in more than 1,000 years of successful German history.” A member of AfD labelled the Holocaust an “effective tool to criminalise Germans and their history”, and yet another described Berlin’s Holocaust Memorial as a “monument of shame”.
In a recent interview for International Holocaust Remembrance Day, Piotr Cywiński, director of the Auschwitz-Birkenau memorial and museum, opined that the motive to ‘never forget’ is more relevant than ever because of the resurgence of racism, xenophobia, populism, demagoguery, and anti-Semitism, and the decline of democratic institutions. To Cywiński, the Holocaust should not be relegated to mere history: “When we see lesbians beaten up on a bus or monkey chants at a football match, these are symptoms of ‘othering’ – and that’s exactly how the Holocaust and most genocides start. There is no greater lesson than the warning from history of the Holocaust.”
The Special Significance of the Holocaust in Europe
The European Court of Human Rights has repeatedly recognised the important lesson of the Holocaust, as well as its special or unique significance for Europeans. The Court has developed an exceptional legal regime in relation to Holocaust negationism, explored by Paolo Lobba in ‘Testing the “Uniqueness”: Denial of the Holocaust vs Denial of Other Crimes before the European Court of Human Rights’. In his chapter, Lobba examines the legal principles that apply to denial of historical events in the Court’s decision in Perınçek v. Switzerland, which held that Swiss legislation prohibiting the denial of the Armenian genocide was irreconcilable with Article 10 of the Convention on the right to freedom of expression. (For a detailed summary of this case, see the blogpost by Uladzislau Belavusau here.)
Whereas the Court generally considers the denial of traumatic historical events to be punishable only when doing so amounts to incitement to hatred or violence, cases involving Holocaust negationism do not require specific evidence of such incitement, because negationism “must invariably be seen as connoting an antidemocratic ideology and anti-Semitism”. According to the Court, this is derived from the historical context of the states that were involved in the perpetration of the Nazi atrocities. Lobba concludes: “the negation of the Holocaust stand[s] out as unique; all other types of denialism require specific evidence to attest to their qualification as hate speech.” Critical of the Court’s stance, Lobba proposes the adoption of an alternative approach, where restrictions upon the freedom of expression of negationists can only be upheld when tangible symptoms of harm (such as malicious falsification of history) can be shown as properly addressed by the legislation.
Clearly, there is tension and differing opinions, both in the Court and in the academic community, about the correctness of the unique legal regime currently surrounding Holocaust negationism under the Convention. Today, however, I propose to set to one side this (legitimate) debate and these differing opinions, and rather to reflect on the significance of International Holocaust Remembrance Day. Today’s commemoration is particularly important because, 75 years after the liberation of Auschwitz, the number of Holocaust survivors is naturally declining. Each year there are fewer and fewer direct witnesses to the atrocities committed during the Second World War. There are fears that our collective memories of these atrocities will fade and that, especially in today’s political climate, the lessons of the past will be forgotten and grave crimes and new atrocities will occur.
Today is a day for commemoration and remembrance. It is our responsibility as lawyers, historians, and academics, but also as global citizens of the world, to counter negationism, and to advocate for historical truth. It is reprehensible to deny the wanton perpetration of the Holocaust, and it is our individual and collective responsibility to act to prevent atrocities akin to the Holocaust from ever happening again.
Katharine Booth is an Australian solicitor and recent graduate (cum laude) from Leiden University’s LL.M., Advanced Programme in European and International Human Rights Law. She holds a LL.B. (Honours) and B.A. (History) (Honours) from the University of New South Wales. Katharine is currently undertaking an internship at the T.M.C. Asser Institute.