Katharine Booth explores Holocaust denial bans in Australia and Europe through the lens of the ‘nexus theory’

While Holocaust denial is not expressly prohibited in Australia, the courts have nonetheless penalised persons for such denial on the basis of racial discrimination legislation. This blogpost explores such a case in light of the normative considerations developed by Robert A. Kahn in his chapter ‘Banning Genocide Denial – Should Geography Matter?’ in Law and Memory (edited by Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias). Kahn critically examines the ‘nexus theory’, meaning the connection between a State enacting a genocide denial ban and the act of genocide being denied. Such a ‘nexus’ imposes limits on countries seeking to implement genocide denial bans, and indeed has been used by national and international institutions (including the European Court of Human Rights) to strike down legislation implementing these bans. 

A Complaint Against the Adelaide Institute

In 1996, a complaint was made to Australia’s national human rights institute, the then-Human Rights and Equal Opportunity Commission (HREOC), against The Adelaide Institute (AI), directed by Dr Fredrick Töben, by the Executive Council of Australian Jewry. The Council alleged that the AI had published material on its website contrary to section 18C of the Racial Discrimination Act. Neither the Act nor any other Australian law expressly prohibit Holocaust denial. Rather, section 18C provides that it is unlawful for a person to publicly “do an act” that is reasonably likely to “offend, insult, humiliate or intimidate” a person or group of people, if “the act is done because of the race, colour, or national or ethnic origin” of the person or group.

The HREOC held that the material on the AI’s website violated section 18C. Among other things, the website referred to the Holocaust as “an allegation” and described “those who level the homicidal gassing allegations at the Germans” as “defamers and libellers of the Germans”. Newsletters published on the website labelled the Holocaust an “evil lie” used to exploit “moral sensibility”, promote “feelings of guilt” and extort money from the United States and German governments.

The HREOC’s decision was appealed twice – to a Single Judge of the Federal Court of Australia and to the Full Court of the Federal Court – and substantially upheld on both occasions. The Full Court ordered Dr Töben to, among other things, remove the impugned material from the AI’s website and not to publish substantially similar content that conveyed serious doubt that the Holocaust had occurred. Dr Töben was prohibited from publishing material that implied that Jewish people who were offended by his views were of limited intelligence, and that some Jewish people, for improper purposes, had exaggerated the number of Jews killed during World War II and the circumstances in which they were killed. He failed to comply with these orders, and was ultimately held to be in contempt of court, for which he was sentenced to three months imprisonment (in 2009 – around 13 years after the original complaint was filed).

(Criticism of) the Nexus Theory

A Contested Judgment

In ‘Banning Genocide Denial’, Kahn examines the ‘nexus theory’, meaning the “relationship between an act of genocide and a political community enacting a ban on its denial”. He discusses the European Court of Human Rights’ decision in Perınçek v. Switzerland, in which the Court held that Swiss legislation prohibiting the denial of the Armenian genocide was irreconcilable with Article 10 of the European Convention on Human Rights on the right to freedom of expression. (Click here for a summary of this case.) The Court balanced the right to freedom of expression against Article 8 of the Convention on the right to respect for private life. In doing so, the Court considered eight principles set out in its case law, including the context of the interference (namely, the geographical and historical context of the Member State concerned, and the time elapsed between the alleged violation and the genocide). In relation to Switzerland’s historical context, the majority of the Court reasoned that the ban on the denial of the Armenian genocide violated Article 10 whereas Holocaust denial bans did not because of the “special moral responsibility” of Member States that have “experienced the Nazi horrors”. The Court reasoned that these States must “distance themselves from the mass atrocities that they have perpetrated or abetted by, among other things, outlawing their denial”. It noted that there was no “direct link” between Switzerland and the Armenian genocide: “The only such link may come from the presence of an Armenian community on Swiss soil, but it is a tenuous one.” In relation to the time factor, the Court further noted: “Whereas events of relatively recent vintage may be so traumatic as to warrant, for a period of time, an enhanced degree of regulation of statements relating to them, the need for such regulation is bound to recede with the passage of time.” The majority clearly agreed that a strong nexus was required between a Member State (its geography and history, as well as the time elapsed) and the alleged violation.

The majority judgment was strongly criticised in the joint dissenting opinion of a not insignificant number of 7 judges. Concerning the issue of the geographical and historical context, the dissenting judges opined: “Minimising the significance of the applicant’s statements by seeking to limit their geographical reach amounts to seriously watering down the universal, erga omnes scope of human rights – their quintessential defining factor today.” They reasoned that protection under Article 10 of the Convention of the denial in Europe of genocides perpetrated elsewhere, such as the Rwandan or Khmer Rouge genocides, did not reflect the universal values enshrined in the Convention. Regarding the time factor, the minority posed the following questions: “Are we to infer that in twenty or thirty years’ time, Holocaust denial itself might be acceptable in terms of freedom of expression? How can this factor be squared with the principle that statutory limitations are not applicable to war crimes and crimes against humanity?” Unfortunately, the minority judgment did not elaborate further on its reasoning.

Kahn’s criticism of the nexus theory closely aligns with the minority opinion in Perınçek. Among other things, he agrees that nexus arguments ignore the universalism of human rights and the common and shared humanity of all people. He concludes that “[g]enocide is not simply a concern of perpetrators and victims, it is a concern for all of us” and therefore “when opponents of genocide denial bans rely on the nexus argument, they run the risk of downplaying the shared humanity that stands at the heart of efforts to comfort genocide victims and prevent the recurrence of genocide in the future.” Indeed, it is difficult to argue that these are not noble arguments. From where and when I stand, it is as offensive to, for example, wear a swastika in Germany as in Australia, today and in the foreseeable future. However, I cannot but agree with the more practical aspects of the majority judgment in Perınçek. It is difficult to imagine the denial of a genocidal act being prohibited everywhere and for all time. Indeed, a reason perhaps for the shortness of the minority’s opinion in Perınçek is because of the difficulty of grappling and in fact answering the questions that they pose. Moreover, laws are generally based on identifiable harms and, most importantly, identifiable perpetrators and victims. For instance, while the Australian Act has the purpose of the elimination of all forms of racial and other discrimination, to be enlivened it requires a connection between an individual victim or group of victims and a racially offensive (or otherwise) act. A strong connection between the victim/s and the impugned act is necessarily more likely to lead to a successful claim than a weak connection. Similarly, a strong connection between a State enacting a ban and a genocidal act is more likely to be considered relevant and necessary than a ban linked to a genocidal act that has little or no ‘context’ (as the European Court would put it) in the State concerned. Moreover, the successful claim against Dr Töben was undoubtedly at least partially due to the involvement of the Executive Council of Australian Jewry and the strong evidence presented to the Court of the distress caused to members of the Jewish community as a result of the material posted on the AI’s website. Sadly, neither the Australian Act, nor Australian law more generally, nor (to my knowledge) the structure of common law systems across the globe, easily accommodate Kahn’s (honourable) call for ‘common humanity’. 

A Contested Theory

Kahn identifies two kinds of nexus arguments – the ‘permissive argument’ is relevant to this short blogpost. This argument requires a link between a country and an act of genocide. For example, in Perınçek, the Court referred to the connection between Member States that had “experienced Nazi rule” and the responsibility to ban genocide denial.

The permissive argument is clearly present in the Australian Act. To be enlivened, section 18C requires an identified person or group of people to be discriminated against on the basis of their race, colour or national or ethnic origin. In the Töben proceedings, the Executive Council of Australian Jewry identified Australian Jews as victims of discrimination. It submitted that a very high proportion of Jewish people in Australia (around 40%) were Holocaust survivors or their direct descendants, and that Australia had the highest proportion per capita of Holocaust survivors among its Jewish population outside Israel. The Council submitted that this made it likely that the Australian Jewish community would be “very sensitive” to the material posted on the AI’s website, and extremely likely that the material would cause offence, insult, humiliation or intimidation among members of the community. The HREOC accepted that the material contravened section 18, but it considered that:

[I]t is reasonably likely to be regarded as offensive, insulting, humiliating or intimidating, even without such a proportion of “Holocaust survivors” in the Jewish population. I do not think the issue of any particular sensitivity of Australian Jews is of relevance, given the extreme and offensive nature of the material.

Accordingly, the HREOC (and subsequently the Federal Court on appeal) considered the presence of a Jewish community on Australian soil, rather than the presence of Holocaust survivors and their descendants in Australia, to be sufficient to fall under the protection of section 18C. The necessary nexus under Australian law is therefore looser than under the Convention – whereas in the Töben proceedings the presence of a Jewish community on Australian soil was a sufficient nexus, in Perınçek the presence of an Armenian community on Swiss territory was described as a ‘tenuous’ link between the genocidal act and its prohibition on Swiss soil. These cases also demonstrate that the nexus required by States varies considerably between legal systems. Kahn describes this problem as a “legal patchwork in which genocide denial is banned in one country but not another”. These differing standards may indicate the unique or exceptional legal treatment of the Holocaust above all other genocides. (For more on this, see Paul Lobba’s chapter ‘Testing the ‘Uniqueness’: Denial of the Holocaust vs Denial of Other Crimes before the European Court of Human Rights’ in Law and Memory).

“The Truth of the Matter”

Kahn also questions the refusal of the majority in Perincek to state for the record that the Armenian genocide was a historical fact. He pondered whether this was “an appropriate refusal of the Court to adjudicate a question of history”, or whether the minority of the Court was correct when they opined that the Armenian genocide was a “clearly established historical fact”.

In the Töben proceedings, Dr Töben wished to adduce evidence before the HREOC as to “the truth” of (what he called) “the alleged Holocaust”. However, neither the HREOC, nor the Executive Council of Australian Jewry, nor the Federal Court considered ‘the truth’ to be an issue for determination under the Act. As Justice Kiefel put it in her judgment: “These proceedings do not involve any determination about the truth or falsity of the appellant's claims or the historical records which he challenges.” Her Honour noted, however, that the truth (or lack thereof) may be pertinent to the Court’s decision if Dr Töben knew “his challenges to be without foundation, and that they were therefore cynically made”, leading to the inference that he intended to offend, insult, humiliate or intimidate in contravention of section 18C. However, this was not considered to be the case in the proceedings. The Federal Court therefore confined itself to adjudication of the law rather than history.  

It seems simple, at least in principle. According to the constitutional principle of the separation of powers, courts are tasked with the interpretation and enforcement of the law that the legislature has enacted, and that the executive seeks to implement. Courts therefore adjudicate the law – not history. Courts (at least, in my experience, courts in adversarial legal systems) are not the most appropriate places for determining ‘historical truth’. In these systems, evidence is sourced, selected, collated, constructed and presented by each of the parties in the proceedings to the judge for the purpose of the specific proceedings at hand. Evidence that doesn’t closely concern or perhaps contradicts the narrative put forward by the parties is discarded. The determination of history is best left to historians, and the adjudication of the law is the forum of the judiciary.

But the answer to Kahn’s question of whether it is (ever) appropriate for a court to adjudicate a question of history is less clear. And yet, what could be clearer or more certain than the wanton and horrific genocide of Jewish people and other minority groups during World War II? And when should courts be obliged to take notice of the facts of the Holocaust (or other acts of genocide, for that matter) and the harm caused by deniers of these crimes? These questions and their answers are too weighty to answer here, and I too am left pondering Kahn’s question. Perhaps you will ponder me.  

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.