De­nial is not a crim­i­nal mat­ter

Leg­is­lat­ing against de­niers of the Holo­caust is part of a danger­ous trend

The Jewish Chronicle - - Comment&analysis - GE­OF­FREY AL­DER­MAN

IN ITS is­sue of Oc­to­ber 3, the JC ran the story of the ar­rest, at Heathrow air­port on an EU war­rant is­sued by the Ger­man gov­ern­ment, of a Ger­man­born Holo­caust-de­nier, Fred­er­ick Toben. Mr Toben is ac­tu­ally an Aus­tralian ci­ti­zen. No mat­ter; he ar­rived at Heathrow from the USA, en route to Dubai. The Metropoli­tan Po­lice ar­rested him be­cause the Ger­man gov­ern­ment al­leges that he has per­sisted in post­ing ma­te­rial on the in­ter­net deny­ing or “play­ing down” the Nazi Holo­caust of the Jews.

In 1999, Mr Toben served a term of im­pris­on­ment in Ger­many af­ter pub­lish­ing pam­phlets deny­ing that mass mur­ders of Jews were car­ried out at Auschwitz. Fol­low­ing his ap­pear­ance be­fore Lon­don mag­is­trates ear­lier this month, a spokesper­son for the Com­mu­nity Se­cu­rity Trust was quoted as hav­ing praised the action of the Bri­tish au­thor­i­ties in ex­e­cut­ing the EU war­rant and as hav­ing ex­pressed the hope “that the Ger­man law will take its course”.

I hope that noth­ing of the kind be­falls Mr Toben. I hope that the ex­tra­di­tion war­rant is quashed, so that Mr Toben is once again free to roam the world deny­ing the Holo­caust to his heart’s con­tent. I also hope that not only will this kind of in­ci­dent never hap­pen again in this coun­try, but that the Bri­tish gov­ern­ment will de­mand that Ger­man (and Aus­trian) laws crim­i­nal­is­ing Holo­caust-de­nial are re­pealed at the ear­li­est pos­si­ble mo­ment.

A great deal has been writ­ten in the press about Toben’s dis­grace­ful treat­ment. My fel­low JC colum­nist Me­lanie Phillips has rightly con­demned this treat­ment as a de­nial of free speech. On Oc­to­ber 10, An­shel Pf­ef­fer cor­rectly ar­gued in the JC that pros­e­cut­ing Holo­caust-de­niers is a waste of money, serv­ing only to give th­ese odi­ous cretins the at­ten­tion they crave. With all of this I heartily agree. But my wor­ries about the Toben case go much deeper.

My wor­ries have to do with the alarm­ing ten­dency of na­tion-states to crim­i­nalise the past and, in par­tic­u­lar, with a wretched pro­posal now un­der con­sid­er­a­tion by the Euro­pean Union, to com­pel EU mem­ber states to en­force par­tic­u­lar in­ter­pre­ta­tions of his­tory un­der the guise of “com­bat­ing racism and xeno­pho­bia”. This pro­posal em­anates (sur­prise, sur­prise!) from the Ger­man gov­ern­ment, whose jus­tice min­is­ter ap­par­ently wants to bring about a state of af­fairs in which “pub­licly con­don­ing, deny­ing or grossly triv­i­al­is­ing crimes of geno­cide, crimes against hu­man­ity and war crimes” would, through­out the EU, be pun­ish­able by be­tween one and three years’ im­pris­on­ment.

Ask your­self how such a mad law might be en­forced, and with what re­sult. Ask your­self who will de­cide whether a par­tic­u­lar his­tor­i­cal event amounts to a “geno­cide”. Ask your­self by what grotesque yard­stick a triv­i­al­i­sa­tion of, say, a war crime amounts to a “gross” triv­i­al­i­sa­tion.

But as you be­gin to an­swer th­ese ques­tions, bear the fol­low­ing in mind. In Turkey, it is cur­rently a crim­i­nal of­fence to as­sert that Ot­toman treat- ment of the Ar­me­ni­ans 90 or so years ago amounted to geno­cide. But in Switzer­land it is a crim­i­nal of­fence to as­sert the pre­cise op­po­site. In France, in 1995, the dis­tin­guished Jewish his­to­rian of the ori­en­tal world and of Is­lam, Bernard Lewis (born in Stoke New­ing­ton and now pro­fes­sor at Prince­ton Uni­ver­sity), was ac­tu­ally con­victed for hav­ing writ­ten an ar­ti­cle (in Le Monde) ar­gu­ing that, al­though the Ar­me­ni­ans were bru­tally re­pressed, this did not amount to a geno­cide be­cause the mas­sacres that took place were nei­ther gov­ern­ment-con­trolled nor spon­sored.

As the dis­tin­guished Bri­tish his­to­rian Ti­mothy Gar­ton Ash (a pro­fes­sor at Ox­ford) re­cently re­minded us in The Guardian (Oc­to­ber 16), ac­cord­ing to a French law pro­mul­gated in 2001, slav­ery has been des­ig­nated as a crime against hu­man­ity. If, while on hol­i­day in France, I am over­heard ca­su­ally deny­ing that slav­ery did in fact amount to a crime against hu­man­ity, do I risk be­ing hauled be­fore the French courts? And if I es­cape to Eng­land will the boys in blue ar­rest me here on a French-in­spired EU ex­tra­di­tion war­rant? Or sup­pose I de­clare that the killing of Pales­tini­ans at Deir Yassin in 1948 did not ac­tu­ally amount to a war crime. If the EU pro­posal were im­ple­mented, would I face im­pris­on­ment, just be­cause I had ex­er­cised my pro­fes­sional judg­ment in a way that up­set Arab pro­pa­gan­dists?

The task of the his­to­rian is to in­ves­ti­gate, con­front, chal­lenge and, if nec­es­sary, cor­rect so­ci­ety’s col­lec­tive mem­ory. In this process, the state ought to have no role what­ever, none at all. Cer­tainly not in the UK, which de­lights in pre­sent­ing it­self as a bas­tion of aca­demic free­dom.

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