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Europe diary: Denying war crimes

15 February 2007

BBC Europe editor Mark Mardell on a German attempt to criminalise Holocaust-denial across Europe, and the next steps to be taken in the life cycle of the proposed EU law limiting CO2 emissions from cars.

The diary is published every Thursday.


The Germans, who are the current holders of the EU presidency, are very keen to bring in a Europe-wide law making it an imprisonable offence to deny genocide or war crimes. So, it would become a crime to deny the fact of the Holocaust, the Rwandan genocide or the Yugoslav war crimes. Or would it?

Each member state shall take the measures necessary to ensure that the following intentional conduct is punishable: 'publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes...'
On first reading, it is clear enough: the proposed law says "publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes" must be punished. But there is a "but". A key clause says that a crime is only committed if there is a threat to public order. The British government hopes to use this to avoid bringing in a new law.

Diplomats argue that Britain's tough rules against crimes motivated by racial hatred would cover such offences.


One who will be celebrating is the man who was sentenced to three years in prison by an Austrian court for genocide-denial.

David Irving
David Irving: Having second thoughts about the Holocaust
Historian David Irving now thinks he might have been wrong about the Holocaust, but told me: "Germany... is trying to dictate terms but it's really a political tactic. It's what Germans call a Persilschein, which is a Persil certificate to prove that they are thinking decently now.

"And they can't do that at the expense of the other European nations and they can't do that at the expense of free speech. I will be the first person in this country to go out into the street and try to break the law. Because I think it's a silly law and silly laws need to be exposed as such."


Most Jewish organisations in the UK don't want a new law. A panel of lawyers and distinguished experts, which looked into the question of introducing a holocaust-denial law in the UK in 1999 agreed with the government line that what we had was enough.

But now the man who chaired the panel, the lawyer Anthony Julius, has had second thoughts.

Anthony Julius
Anthony Julius: Second thoughts about Holocaust-denial law
"Times have changed. At that time Holocaust denial was the plaything of cranks, impotent cranks. People who could represent no real threats to Jews or others," he tells me.

He goes on: "Since then, the president of Iran has made a series of potentially lethal interventions into global political life, both sponsoring Holocaust-denial and calling for the destruction of the state of Israel. Now that combination creates an entirely new set of circumstances - meaning that the German proposal should be taken very seriously.

"The legal tradition in this country has been very heavily biased in favour of free speech, and that is a good thing, but I think that we need to recognise the changed political circumstances and give much more consideration to the German proposal than we might otherwise be inclined to."

It's the European Commission's third bash at getting some sort of law on racism on the books and it's been weakened along the way, dropping for instance, plans to outlaw the swastika everywhere in the EU.

There are doubtless pros and cons of having what amounts to a Europe-wide law, but what is the point of having such laws that member states can ignore?


"So it's a law now is it?" This innocent question from a colleague in London as I prepared a piece on the European Commission's plans for a legal curb on CO2 emissions from cars made me think it might be a good idea to follow in detail how something becomes an EU law - as I promised last week. I hope it will be enlightening to follow the life cycle of a law.

After this there was a discussion in the regular meeting of Coreper. Who? Oh, the 27 ambassadors to the EU, or their deputies
The commission's proposal is a law to ensure that by 2012 the average car sold in Europe emits no more than 130g of CO2 kilometre driven. We've seen the baby law get to its wobbling feet and now we'll track its progress as it makes its perilous way through the Brussels jungle.

The first to look over this frail beast were the desk officers within the embassies of the 27 EU countries, in Brussels. After this there was a discussion in the regular meeting of Coreper. Who? Oh, the 27 ambassadors to the EU, or their deputies, that's Coreper: Comité des représentants permanents. (In this hunt you will also learn some Brussels acronyms which may come in useful in Scrabble.)

The first full-blown political discussion will be at the meeting of environment ministers on 20 February. The Germans, who are in the chair, want to ask two fundamental questions. Indeed, they go to the very guts of the existence of this law. They are: "Should there be binding legislation on car manufacturers?" and "Is the level of 130g of carbon for every kilometre driven, the right one?" If the ministers answer "No", then it's game over. But I very much doubt they will (find out next week) although they might offer up some changes for form's sake.


Then there will probably be lot of discussions in European foreign ministries but little public action until the Spring Council, the meeting in March of Prime Ministers and Presidents. Watch the Germans, Angela Merkel says they will not make the "error" of thinking only of narrow national interests, even though changing the way cars are produced "won't be easy" for Germany. But will she really not give an inch to the powerful German motor industry?

BMW car
Many German cars are big emitters

By the end of the year our little "Communication" may have evolved into a full-blown draft "Directive". All it then has to brave is two or three years' more debate, starting with the European Parliament.

A pessimistic environmental pressure group that I talked to reckons it may not be passed until 2010, two years before it has to come into effect. It gloomily predicts car manufacturers will argue this leaves them little time to implement it, and argue for a delay.

Your comments:

I believe that the Holocaust did occur. However, it does seem ironic to me that the courts will turn down requests to ban political parties with paedophile agendas - as was recently the case in the Netherlands - on the grounds of Freedom of Speech ¿ and yet people¿s right to deny historical events, even if they are based on misinformed information, seems to takes precedence. It seems to me that Society has its priorities all mixed up ¿ we should be focussing our energies on protecting our children!
Peter V, UK

I'm a Jew, with no family left in Europe after the war. A law restricting free speech is *wrong*. The best way to fight lies is with facts and truth. Let the deniers speak, and be there to correct them and call their lies as they are.
Dave Weingart, Levittown, NY, USA

My grandather was in the ground troops that liberated Bergen-Belsen camp so he saw what the Nazi's did. Holocaust denial offends me personally from the point of having Jewish ancestry. However to criminalise this would probably give those with these stupid uneducated views the opportunity to use arguments of free speech to support their ridiculous cause. Let them have their rants. It is their right just as much as it is mine to decry their ignorance.
Bree, ST Peter Port, Guernsey

Your analysis reduces the german proposition in two ways. First, it is worth noting that the first part of the two-part draft deals with "Public incitement to hatred and violence for reasons of racism or xenophobia..." And only in this context the cited qualification of "conduct that is apt to disturb the public peace" is mentioned. (Press release "Outlawing Racism and Xenophobia Throughout Europe", German Ministry of Justice, Jan 29th 2007) Second, and that has consequences for a number of commentaries published here, the definition of genocide is further qualified: "The Framework Decision...refers to the Statute of the International Criminal Court and the International Military Tribunal of 1945...Whether a concrete historic crime falls within these definitions would be decided by a court in each concrete and specific case." (Same source)
CC, Berlin, Germany

You quote D.Irving: "Germany... is trying to dictate terms but it's really a political tactic. It's what Germans call a Persilschein, which is a Persil certificate to prove that they are thinking decently now." Is there any further prove needed that this man has a mental problem? There are some 80 Mio. Germans. Are they all thinking the same way? Even under the Nazis, only 10% of the population were party members. Some 600.000 Germans fled the country, and the first and the last victims of the Nazis were Germans. It is comfortable to put entire nations into a box, but it doesn't bring us closer to the truth. What would you say if I claimed that all British men wear women's underwear just because some are known to do so?
Ronald Grünebaum, Brussels, Belgium

The most worrying aspect is how Germany wants to impose this law. One can understand that the Germans need such a law because the Holocaust is uniquely tied up with their history. So for a German to deny the Holocaust means something very different from an Englishman (or an Iranian for that matter) who does the same thing. One can't help wondering if this is more about "guilt fatigue" on Germany's part. As for Bosnia, in 2005 officials from the Hague Tribunal published a paper estimating that 102,000 people died, on all sides. But one still sees 200,000 or 250,000 quoted, figures whose provenance the paper revealed are not based on rigorously checked data. Would this paper have been published if the proposed law had been in place? The question of why a scientific figure is ignored is the flip side of "genocide denial" - should it be called "genocide inflation" - which can equally result in hate mongering against the "baddies", in that case the Serbs.
Brian Pocock, London, UK

I think the law is absurd. At no point should thought be legislated. I personally find it incomprehensible that someone could deny one of the greatest tragedies in modern history. However, if denial or refusal to believe is made illegal we are surrendering tremendous power to the state; the power to tell us what to believe or disbelieve. I think we all know that once power is surrendered it is rarely, if ever, retrievable. In my mind this is one very scary step towards state thought control. We should never allow the state to tell anyone what to believe or disbelive. Truthfully, we all know that these laws will not change anyone's mind on the subject. It will only make it illegal for them to speak their mind.
Andrew, Chicago, USA

It won't be long before there's criminalization of climate change denial!
Reggie Lawson-Tims, Manchester

Freedom of speech IS the freedom to speak ones mind however different from another¿s point of view and a measure of its application is the ability/freedom to do so. There are holocaust and evolution deniers, multi nationals who state that their product does not have a harmful effect (Smoking, etc.,), groups who believe the British Royal Family are really Alien Lizards!! The narrow, odd, ill, or simply uninformed as to the complexity of some issues are expressing their opinions. Having the freedom to debate or speak, informs human knowledge on the individual and the group level, moving us forward to a greater understanding. There is always reality - robust data that does exist and can be accessed by millions.
Jon, UK

Approx 12 million died in Hitlers camps. 30 million died in Stalins Gulags. Its a crime to display the swastika in many european nations but not the hammer & sickle... I think many in Poland or Latvia would see little difference between the symbols. This proposed law is very unbalanced.
Peter, Nottingham

Let's all support this law. Then can we arrest Tony Blair for denying that the Darfur genocide was genocide?
Paul Anderson, London

Its easy and cheap for the media to portray other peoples views in a completely different manner particularly when they are hated.The president of Iran asked a few good questions that everyone should ask. Did holocaust happen? Who committed the holocaust? Who should really pay the price but who is paying the price?
sharif razai, london

Sharif, it is perfectly acceptable to have the freedom to ask the question, so long as we give the answer as much thought as we give the question. It intrigues me that the arguments so quickly deployed to justify holocaust-denial are the same as are so quickly rejected when it comes to questioning religious shibboleths. It's a matter of consideration, compassion and respect.
James, London

Personally I am afraid that this wouldnt so much be a law against Holoaust denial, it will be a law against saying things that just aren't true! How can one be imprisoned for saying something that is plain and simply incorrect? Is there a difference between being criminally wrong on the one hand, and just plain stupid on the other? If there is, who defines that fine line? Should claiming that one mans terrorist is another mans freedom fighter be criminalised too? Its a slippery slope indeed.
Patrick Davidson, Copenhagen, Denmark

I think it may be a good law but I would also like to see a more inclusive law punishing anyone who speaks well of Stalin or Mao, since they were responsible for many more deaths of Human Beings than the Germans.
Richard, Los Angeles, USA

This Genocide Denial thing is absurd. People are allowed to think whatever they want, even if they are completely wrong. The truth will always remain no matter what anyone does or thinks. Whatever happened to freedom of press and freedom of speech, anyway? People try so hard to these days to control what everyone does and thinks sadly enough, as a supporter of free speech and freedom of press, I must back these people even though they are wrong about what they think. You can't send them to detention camps to re-educate them, thats what the nazis and soviets did, does anyone remember? You people in the EU need to wake up a little bit.
Kevin Ross, Kiev, Ukraine

The Holocaust did happen. It is European history, not Middle Eastern or Islamic history. Why are the Palestinians paying the price for what the Jews of Europe went through? Its no wonder why The Holocaust is a taboo subject in Europe and that there are many laws against its denail.
Farzand Ahmed, Bangkok, Thailand

For the first time I can recall I find myself agreeing with David Irving, if other countries wish to have such a law either from sincere belief or from some PR motive fine, but I am completely opposed to a further stripping away of long-held british norms on freedom of speech. Unfortunately I suspect that the current government are likely to let it through partly to prove their European credentials and partly because of their fanatical desire to remove every trace of British/English culture and norms. I really can't see that the passing of such a law by the EU or individual state is going to have any impact so what ever on the Iranians so that justification is pure nonsense.
Peter Mason, Chelmsford, England

Are there not already laws against activities that are a threat to public order? And could it become a criminal offence to deny a holocaust or war crime that had not, in fact, happened?
Bill Young, Switzerland

The need to pass legislation punishing denial of genocide, crimes against humanity and war crimes is rather worrysome. Will this really make a difference to those who were at some point, directly or indirectly, involved in the commission of such crimes? There is no doubt that the idea is morally symbolic, but if they were capable of committing the crimes, no legislation can help them feel bad about it, and no legislation can help the victims feel better. I believe the European states that are keen on making it an imprisonable offence to deny genocide should properly recognise that they are passing laws on what they failed to prevent a long time ago, and learn the lesson to act on time in the future. "The Yugoslav war crimes" the expression used in the first parapraph of this diary, is somewhat a denial in itself, at least in the eyes of the Bosnia and Herzegovina citizens. Please see the August 2001 ICTY Conviction of Radislav Krstic, a Serb General in Bosnia, for the crimes of genocide.
Ermin Gacanovic, Sarajevo, Bosnia and Herzegovina

This type of legislation is going to prove counter-productive. It's going to polarise factions even further. Perhaps this is indeed the hidden intent of the German government. If parents favour one child over another they will be sure to to reap the results of resentment and eventual rejection by their children. In this day and age we should be thinking more in terms of reconcilliation and peace rather than provocatively, openly favouring a particular group/groups with needless new laws. Furthermore introducing new laws puts a thought in some communities' minds which otherwise may never have occured to them. I think very few British and European Moslems truly believe the Holocaust is a myth. They're going to wonder why governments are stirring up the issue. Incidently, my ancestors were Eastern European Jews, victims of the Pogroms.
P James, Leeds UK

So because Iran has stated it wants to wipe Israel off the map, we need to implement a law limiting freedom of speech? If some crackpot wants to deny the holocaust took place, then they will be derided for the plonker they clearly are. However, this law has a very broad scope and clearly limits freedom of speech that should be the foundation of any decent democracy. The Terrorism Act already has limited our speech enough, we should not allow the German Presidency to push through yet more restrictions. Interestingly, as EU correspondent, perhaps you could highlight how the Presidency of the EU is meant to be neutral in its position vis-a-vis regulation and is not meant to use the opportunity to push through laws it wants enacted throughout Europe. Why hasn't anyone made anymore of such a blatant disregard for EU principles?
John Middleton,

I find prior constraint laws pertaining to speech to be highly objectionable. This is the government's attempt to limit what people can think. Anyone is free to think or believe what s/he wants to. The limitation is on one's right to act on one's beliefs. Government should not be in the business of enforcing dogma. Rather, government is the business of facilitating the peaceful coexistence of people with all points of view, no matter how ill-informed or stupid they appear to be.
Eran Fraenkel, Jakarta, Indonesia

i think one should be able to say what that individual thinks freely and without fear of prosecution, let me give you an example, i think george w bush is fat and ugly and he is the worst president ever, now not everyone will gree with me(at least the fat and ugly part) but it is esential that one can express whats in your mind freely, if some one wishes to deny the holocaust then so be it, if you dont agree with what that individual thinks well.. simply dont agree, come on its a basic human right FREEDOM OF SPEECH!
armando, las vegas USA

I am studying for a year in Germany to learn German. On Tuesday there was an anti-nazi march and I was there in the front lines. I was talking to many of the marchers, many people came and hug me and they were very courageous and angry. Yes, angry some even crying for having to march for democracy. They could not believe the ghost of 'nazism' was back in their country. We met the neonazi mob outside the synagoge here in Dresden and all these young people run very angry at them braking the wall of policemen. I was very proud of their courage and felt very sure that this culturally rich and beautiful country of Germany has to offer much more than Holocaust deniers.
Nico Fekete , Dresden, Germany

Maybe previous comments suggest that these people should be allowed to express their opinion, or to simply ask questions about history. The problem is Holocaust Deniers are 99% of the time anti-semites, and their hatred of the Jews is what drives them to deny that the Holocaust happened. They are not simply expressing an opinion, but attempting to turn peole against Jews, and in today's Europe where anti-semitism is on the raise, particularly in Central and Eastern Europe this is very dangerous. The internet is full of Holocaust deniers spreading their 'theories' about influencing impressionable minds. As time passes and Holocaust survivors pass away, it will become easier and easier for doubt to be cast on what is one of the most widely documented and evidence supported events of recent history.
Greg, London

I'm afraid the problem isn't just one of free speech. When Holocaust denial was just the preserve of a few nutters, there was no problem in letting such people say what they wanted. But increasingly Holocaust denial is becoming part of a wider political agenda. To take an example from another correspondent: if I say "George Bush is a deeply stupid, arrogant and dangerous man", then that's my opinion and I have a right to say it. If I then carry on and say "and I demand that anyone who thinks George Bush is right and good should be herded up, forced through giant mincing machines and spread on the land as fertiliser", then I should be stopped from promoting that idea or trying to get others to agree with me or act on that idea. And if that restricts my right to free speech, then that's tough. Remember, didn't Mr Spock say "the needs of the many outweigh the needs of the few"? And for "needs", substitute "rights".
Robert Day, Coventry, UK

So decision making in the EU takes time, particularly if it involves a proposal from an unelected body that has to be scrutinized by elected governments. Sounds like democracy to me. What I still don't understand is this: I drive a small BMW emitting around 140 gr/km of CO2, only 10 gr/km more than the limit they want to impose on car makers in 2012. Many other European made cars emit even less carbon! But obviously these cars don't seem very much in demand - people don't buy them, they want and buy bigger and stronger cars. Demand is still one of the pincipal forces in a market economy, so to me it follows that politicians should try to influence demand, rather than regulate supply. Unless we agree to discard the present market economy, based on private investments, and turn to a state controlled supply economy.
Zeger, Mechelen, Belgium

In addition, the Commission, Coreper and the Parliament will be massively lobbied = wined, dined and talked at until they turn blue, said Graham Chambers, Luxembourg. YES, particularly by the environmental lobby groups, the politically correct and government sponsored NGO's who have hijacked DG environment. Which shows the whole undemocratic show of the unelected officials in the EU commission should be reformed swiftly and reflect political realities much more than it does now. That will also stop this morally superior howling about the 'nasty car lobby' = the automotive industry, good for 12 million jobs (yes, twelve million!!!!). May they also say something? It's about their income, you know.....
Krijn, Brussels

A good idea to show the path of European law making. (democratically listening to each member state's view) Please try to avoid puryeying the UK view that: a. Brussels is slow and inefficient; b. Germany's car producers' are responsible for serious CO2 emissions, don't forget they still have an industry, continually investing in the development and improvment of their products , (which, by the way, seem to be the preferred 'European car choice' of most Brits); Most important of all: the Germans appear to take the EU and its legislation seriously, and work with it for the better.
Graham Fairfax Jones, Wembley, England,

The EU and the Governments of the EU should state clearly that in 10 years time no new vehicle can be sold which has any emissions at all. Essentially this means either electric power or hydrogen. The governments should, at the same time, negotiate with the fuel producing companies the necessary changes. There should be MASSIVE government intervention, both legal and fiscal to ensure the changes. And, do you know what, once they realise that all their lobbying etc will be of no avail, these companies will work out how to do it. They are manned by very clever people, who like most of us, are more comfortable with the status quo, even though the status quo simply won't do any more. However, I doubt whether Tony Blair, Royale/Sarkozy or Merkel have the simple guts to do it.
David Powell, Salles d'Aude, France

I have worked for the European Parliament for 25 years. Of course car manufacturers will whine - they always do. But the more astute of them will already assume that the draft directive will be passed sometime around 2010 and make provisions now accordingly. In addition, the Commission, Coreper and the Parliament will be massively lobbied = wined, dined and talked at until they turn blue. The really astute lobbyists will also target the staff of the appropriate EP Committees and the staff of the Political Groups for these are the people who mostly draft the amendments as the draft directive passes through the EP.
Graham Chambers, Luxembourg

Why legislate in a piecemeal way against CO2 emissions, such as taxes on 4x4s and airflights and incentives for windfarms. These are distractions. Surely a blanket tax on carbon fuels would be easier and far more effective.
Bill Young,

The "closed door" discussions on EU lawmaking might seem remote and undemocratic to some. However becasue it takes a long time the legislation is more "tested" than national legislation made up "on the hoof". Thanks Mark for your usual objective and clear reporting, now try to get it into the UK education sysllabus too! Now there's a task!
Gerald Lambourn, ABZAC FRANCE

Let's hope the legislative process doesn't take that long - it is a hugely important proposal, not a 'piecemeal' measure as Bill Young claims. I think many people would agree that a carbon tax would be a very effective instrument for countering emissions (affecting behaviour as well). The problem: no EU tax proposal would ever see the light of day due to tax sovereignists like the UK and Ireland. So, we are reliant on progressive policies from national capitals - I wouldn't hold my breath. EU legislation is particularly important in the environment field - bring it on.
Richard, Dublin

Actually, I do not understand why everyone is talking about the CO2 emissions in grams right now. You can only burn as much carbon as you pour into the tank. This whole virtually new debate is actually about the old question of fuel economy. Its focus just got shifted from oil shortage to exhaust gas "surplus", but physically it's the same problem! So the same answer applies, which is: Make fuel more expensive and consumers will conserve. So, I do not understand why they absolutely want to put a legal limit on the CO2 emissions (i.e. fuel consumption) of new cars. Establish an EU-wide tax on gas and diesel! This will on the one hand make consumers more strongly prefer low-fuel (i.e. low CO2) models when buying new and on the other hand make them seriously consider walking, cycling or tubing, which is way less CO2-emitting than those 130g/km. The old-fashioned market-driven approach can potentially achieve more than the proposed ban and it leaves people more freedom, as they can decide whether they want to act responsibly or pay.
Moritz, Frankfurt, Germany


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