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Last Updated: Wednesday, 7 February 2007, 10:09 GMT
Banning the freedom to deny
By Clare Murphy
BBC News

British historian David Irving
Irving's imprisonment for Holocaust denial sparked heated debate
Germany is courting a row over freedom of speech as it seeks to clamp down on those who deny genocide or mass murder.

Before its six-month spell at the helm of the EU is up, it hopes to push through measures which would criminalise, and possibly imprison, not just those who downplay the Holocaust but also those who belittle genocide, war crimes and crimes against humanity.

"Historically proven facts must not be denied," said German Justice Minister Brigitte Zypries in a radio interview this week.

"When an international court determines that such crimes have taken place, then you should no longer be able to say: 'You're making that all up.'"

It is a proposal which Germany sees as part of its historical responsibility to fight racism and xenophobia.

But it has drawn fire from those who prefer to put up with Holocaust deniers than relinquish freedom of speech, and others who worry historians will stop researching mass murder, for fear of prosecution if they come up with the "wrong" conclusion.

Take two

Criminalising those who deny the murder of six million Jews in World War II has long been a fraught issue.

The EU has been thwarted in its efforts to do this in the past. An attempt two years ago was rejected by Italy, but Berlin hopes that with a new centre-left government in Rome, it can breathe new life into the measures.

We have immense difficulty defining what constitutes genocide... any attempt to stifle discussion is very worrying
Stephane Bruchfeld, Uppsala Programme for Holocaust and Genocide Studies

Yet the conviction of British historian David Irving in Austria last year for Holocaust denial sparked an intense debate about freedom of speech in several member states.

Some of his most ardent foes expressed their discomfort with jailing him for his views, however unsavoury they might be.

In Italy, nearly 200 historians have signed a manifesto against criminalising Holocaust denial.

But a string of European countries already ban it, including France, Belgium, and Poland, as well as Austria and Germany, arguing that such views have no place in societies which reject outright the crimes of the Nazis.

Czech Republic

Indeed it is the genocide denial aspect of the package which looks set to draw the most consternation.

"With Holocaust denial, there are some cases where the justice system is the only way to stop it pervading society, where public debate isn't enough," says Stephane Bruchfeld, a researcher at Sweden's Uppsala Programme for Holocaust and Genocide Studies.

"But we have immense difficulty defining what constitutes genocide. Observers, scientists, historians, they need the freedom to research, to debate. These discussions are incredibly important - any attempt to stifle them is very worrying."

The deaths of hundreds of thousands of Armenians during World War I is a case in point. Some countries have declared that a genocide took place, but others have resisted calls to do so - and in Turkey it is even a crime to give the killings that label.

'Heart not head'

Under the proposals, a person would face up to three years in jail for "approving, denying, or grossly minimising" a war crime that had been proved to be such at the International Criminal Court (ICC).

The court, which has just agreed to hear its first case - the trial of DR Congo militia leader Thomas Lubanga, deals only with crimes committed after 1 July 2002.

Questions surrounding genocide and war crimes committed in the Balkans during the 1990s for instance would not be at issue under the German proposals.

In any event, some EU observers doubt the proposals will ever make it into European law, noting they are likely to fall foul of countries like Sweden, which cherish the right to freedom of speech.

The proposals will be formally discussed at a Council of Ministers meeting before June, according to a spokeswoman from the German government.

But the failure to ratify the European Union constitution, which would have facilitated more joint action in the field of justice and home affairs, means that even if the measures were accepted it would be hard to foist them upon those countries wary of them.

"There's a lot of wrangling going within the EU about who we are, how we see the world, what we find acceptable and what we find abhorrent," says Hugo Brady, research fellow at the London-based Centre for European Reform. "But it's all happening within a very legally ambiguous atmosphere."

"These proposals prompt debate - but I predict nothing more. They are from the heart, not the head."



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