Criminalizing Conscience

In Germany and Austria, Holocaust “denial”[1] and “hate” laws are basically an amplification and extension of Lycurgan Allied occupation policies dating back to 1945, whereby published literature or public behavior deemed to be reminiscent of National-Socialist propaganda was prohibited by law, commencing with a ban on all National-Socialist symbols and gestures, or distribution of “Nazi propaganda.” Article 86 of the German Criminal Code prohibits dissemination of the propaganda of unconstitutional organizations:

“Whoever […] distributes, produces for distribution rights within this area, keeps in supply or imports into this area, propaganda:

1. of a political party which has been held unconstitutional by the Federal Constitutional Court, or of a political party or association, concerning which an unappealable determination has been made that it is a substitute organization of such a political party, or
2. of an association which has been unappealably prohibited because its activities are directed against the constitutional system of government or the concept of international understanding, or concerning which an unappealable determination has been made that it is a substitute organization of such prohibited association […]
3. of a government, organization or institution outside of the territorial area of application of this law which is active in pursuing the objectives of one of the parties indicated in Numbers 1 and 2; or
4. propaganda, the contents of which is designed to further the aspirations of a former National-Socialist organization

shall be punished by up to three years imprisonment or by fine.”

Holocaust “denial” was later substantively incorporated into these laws and interpreted as a continuation of “Nazi propaganda.”

In 1985, German legislators appended Article 130 to the German Penal Code. The law ostensibly dealt with incitement to racial hatred, and contains no specific reference to “Holocaust denial” per se, yet “deniers” fell within the scope of this legislation, as it loosely interpreted “Holocaust denial” as an insult to the personal honor of Jewish people, and prescribed that any person who denied, trivialized or expressed approval of, in public or in an assembly, crimes attributed to the National-Socialist regime, was liable to prosecution. The law was indisputably political in nature, and stipulated that individuals who took umbrage at legally proscribed statements were entitled to register a complaint and file charges against persons or organizations that had given offense. For those convicted of violating it, the law decreed a prison term of up to one year in prison for any person unfortunate enough to run afoul of the new legislation.

In the run up to the enactment of Article 130, Jewish pressure groups had been actively campaigning to influence passage of this and similar legislation. In April 1982, just one year after Israel’s criminalization of Holocaust denial, Dr. Stephen Roth, the director of the Institute of Jewish Affairs (hereafter referred to as the IJA), an affiliated agency of the World Jewish Congress situated in London, England, resolutely pressed the British government to introduce legislation criminalizing Holocaust denial in Great Britain. These determined Jewish groups were highly motivated, organized and well financed, with connections reaching into the highest echelons of government.

Mr. Ivan Lawrence, MP, spoke out in favor of Holocaust-denial legislation, equating Holocaust revisionists with neo-Nazi propagandists. During the course of a public press conference which took place at IJA’s London headquarters, Lawrence, coincidentally a member of the latter’s policy planning panel, exclaimed:[2]

“The radical right-wing elements realize that the strongest motive of the resistance to their movements and ideas is the memory of the Nazi horrors. They want these wiped off the slate of history, be it by distortion or falsification.”

Lawrence concomitantly expressed his personal revulsion towards Professor Arthur Butz of Northwestern University, who had authored the controversial groundbreaking book The Hoax of the Twentieth Century, which questions the scope and extent of National-Socialist Germany’s persecution of the Jews, and disputes the claims of homicidal gas chambers in the concentration camps.

In conjunction with Mr. Lawrence’s public statements, the IJA had drafted a report underlining Jewish disquietude over the worldwide impact of Holocaust revisionism, and set forth the Institute’s proposals to the British government on how best to counter and stifle the expanding influence of revisionist historians. Conspicuously ignoring Israel’s precedent in first outlawing Holocaust denial, Dr. Roth sagaciously redirected attention toward the West-German Ministry of Justice, which was proposing to amend the German Criminal Code to make it a punishable offense to “deny the facts of a committed or attempted genocide or to make it appear harmless.”[3] Whereupon Dr. Roth blithely suggested, “This is a major initiative which we in this country should emulate.”[4]

In March 1982, one month prior to the above-described press conference, the IJA officially released a “research report” dealing with the problem of Holocaust denial. The report predictably opens with a reference to “the political dangers inherent in the denial of the Holocaust, and the boost thus given to neo-Nazi propaganda […]” and proffers detailed suggestions as to how “the law can deal with these problems.”[5]

The report advances certain propositions that cannot, prima facie, be accepted as inerrantly accurate, and provides an interesting study in the methodology employed by pressure groups to influence legislators and orchestrate the flow of public opinion.

The document states “whenever the denial of the Holocaust is accompanied by the accusation that Jews or Zionists invented the story for their own ulterior motives, such statements could and should be dealt with by laws against incitement to racial hatred.”[6] The report protests that current laws are wholly inadequate to punish offenders for thought crimes, and cites the Federal Republic of Germany, rather than Israel, as setting a proper precedent other governments should emulate. The striking irony of Jewish pressure groups based in England advocating punitive laws to prosecute German citizens for thought crimes was apparently lost on the compilers of the report.

The appendix to this publication lists “54 books” which the IJA claims “falsifies the horrible truth of Nazi crimes.”[7] The titles and authors listed in the report are of unique interest to the continued development of this book’s [The Prohibition of “Holocaust Denial” – Ed.] theme, in that a significant number of individuals cited were later prosecuted under hastily improvised Holocaust-denial laws in France and Germany. Thus, the recommendations contained in this early report, initially drafted in Great Britain, may be regarded as a blueprint designed to encourage the future prosecution of Holocaust revisionists. Among the numerous individuals and titles mentioned in the report may be found:

• Thies Christopherson, Die Auschwitz-Lüge (The Auschwitz Lie)
• Robert Faurisson, Mémoire en defénse contre ceux qui m’accusent de falsifier l’histoire. La question des chambres à gaz (Memoir in Defense Against the Accusation that I am Falsifying History: The Question of the Gas Chambers)
• Richard Harwood, Did Six Million Really Die? The Truth at Last
• Paul Rassinier, Le mensonge d’Ulysse (The Lie of Odysseus)
• Wilhelm Stäglich, Der Auschwitz-Mythos: Legende oder Wiklichkeit? Eine Kritische Bestandsaufnahne (The Auschwitz Myth-Legend or Truth? A Critical Assessment)
• Udo Walendy, Bild ‘Dokumente’ für die Geschichtschreibung (Picture ‘Documents’ for Historiography)

Arguing the thesis that the Holocaust is unique in history, the redactors advance the proposition that Holocaust denial must be regarded as a crime in a moral sense, “because it is offensive to survivors of the Holocaust and indeed to all Jews and other groups whose members were victims of the Nazis. It is also a crime politically, because it gives aid to the neo-Nazi movements.”[8]

Whether the statement of the IJA is well-founded or not is irrelevant to the fact that freedom of expression without fear of persecution is normally considered to be a fundamental right in modern civilized nations. This fact notwithstanding, critical commentators who have gone on record favoring Holocaust denial laws generally evince no compunction whatsoever when advocating limitations on freedom of speech whenever the latter disagrees with their own opinions or agenda. Moreover, the law as currently formulated and interpreted primarily focuses attention on only one tragic historical event to the exclusion of all others: National-Socialist Germany’s persecution of the Jews. As such, the law trespasses over and into the realm of historical dogmatism and political correctness. It lends credence to the suggestion that Jews alone have suffered unique persecution and historical tragedies over and above all other people of the earth, necessitating special laws for their continued protection. The law attempts to coerce recusant historians to conform to the mainstream version of history or else suffer dire legal consequences. As such, these laws seek to place a muzzle on the conscience of humanity. Holocaust denial laws, then, are fundamentally flawed as they are based upon a dangerous form of legal coercion curtailing responsible freedom of expression. This fact alone demonstrates the palpable weaknesses inherent in such laws, and this vulnerability has not gone unnoticed or unexploited by other offended or ignored ethnic groups, which have attempted to jump on the Holocaust bandwagon demanding equal status under the law, thereby creating a quandary for courts and legislative bodies alike.

Another school of thought believes that education in the form of indoctrination is a preferable response to Holocaust denial, yet in effect both groups seek to rely on the arbitrary power of the State to enforce compliance of belief in the mainstream version of the Holocaust. Both groups evidently support the notion that the end justifies the means. In contradistinction to these opinions, many civil libertarians favor the more civilized process of unrestricted investigative research and open debate over government sponsored programs of indoctrination.

Ten years would elapse before the recommendations suggested by the IJA gathered enough momentum to enlist the support of British legislators. In 1996, the British Labour Party responded with unconcealed enthusiasm to Dr. Roth’s earlier recommendations and announced that if they were elected, they would make Holocaust denial a criminal offense in Great Britain. The London Jewish Chronicle candidly reported that the Labour Party’s decision came about as a direct result of a “lengthy campaign” conducted by Jewish groups such as the Board of Deputies and the Holocaust Education Trust.[9] In spite of these solemn assurances by the British Labour Party, passage and enforcement of the proposed law would ultimately prove to be legally problematic.

Early efforts to criminalize Holocaust denial were to meet with greater success on the European mainland, where sympathetic German and French legislators, reluctant to offend Jewish sensibilities, enacted restrictive legislation intended to punish individuals for expressing doubts about the Holocaust. As early as 1979, the German courts perceived Holocaust denial as a prosecutable offense, declaring,

It is part of the personal consciousness (Selbstverstaendnis) of the persecuted to be considered as belonging to a group that stands out because of the persecution suffered and to whom all other citizens bear a moral responsibility. This consciousness of being victims of persecution is a matter of their personal dignity. Respect for that consciousness is the guarantee against the repetition of similar discrimination in the future and an essential condition which makes their life in Germany possible. Whoever tries to deny the truth of the past events denies to every Jew the respect to which he is entitled.[10]

In prosecuting cases of Holocaust denial, German judges are bound to uphold the strict letter of the law, which often becomes problematical. According to Article 130, an individual may become liable if prosecutors determine that their statements constitute “agitation of the people” which German legislation defines as follows-

(1) Whoever, in a manner that is capable of disturbing the public peace:

1. incites hatred against segments of the population or calls for violent or arbitrary measures against them; or
2. assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population,

shall be punished with imprisonment from three months to five years.

(2) Whoever:

1. with respect to writings…which incite hatred against segments of the population or a national, racial or religious group, or one characterized by its folk customs, which call for violent or arbitrary measures against them, or which assault the human dignity of others by insulting, maliciously maligning or defaming segments of the population or a previously indicated group:
   1. disseminates them;
   2. publicly displays, posts, presents, or otherwise makes them accessible;
   3. offers, gives or makes accessible to a person under eighteen years;
   4. produces, obtains, supplies, stocks, offers, announces, commends, undertakes to import or export them, in order to use them or copies obtained from them within the meaning of numbers a through c or facilitate such use by another; or
2. disseminates a presentation of the content indicated in number 1 by radio, shall be punished with imprisonment for not more than three years or a fine.[11]

Although the Holocaust is not specifically mentioned, it seems self-evident that the law was drafted in respect to the latter. Although the law has been applied to various criminal offences in respect to “hate” crimes, it is elastic enough to encompass thought crimes. Yet practically speaking, interpretation of the law is largely left to the discretion of the courts.

One striking fact that presented a challenge to the integrity of the courts was the fact that Holocaust revisionism simply did not appear to fall under the strict provisions stipulated in the laws, in that scholarly revisionist writings do not constitute incitement to violence, nor do they prompt reasonable people to commit hate crimes. Neither do scholarly revisionist writings “assault the human dignity of others by insulting, maliciously maligning or defaming any segment of the population,” although determined critics endeavor by diverse means to apply this criterion to accused revisionists.

In fact, none of the criteria described in the law and its various sub-divisions appears to apply to historical revisionists or homicidal-gas-chamber negationists. By and large, many people categorized for convenience’s sake as “Holocaust deniers” are in fact Holocaust agnostics. Their antagonists, the “Holocaust True Believers,” have elevated belief in the Holocaust to the level of a devout religious dogma. Within this murky world of skepticism versus faith, the Doubting Thomases of revisionism insistently demand, “Unless I see… I will not believe,” while the true believers rejoin, “Blessed are they that have not seen, and yet have believed.”[12]

Questioning or revising an historical event is not a matter for courts or legislative assemblies to decide. Indeed, in rendering verdicts against accused “deniers,” most courts simply take “judicial notice” of the judgment rendered by the legally questionable International Military Tribunal at Nuremberg, conducted under the auspices of the victorious allies. In fact, it was neither international, nor military, nor a Tribunal in the strict sense, for it served as both judge and aggrieved party to the cases over which it pronounced judgment. Historical disputes involving the existence or non-existence of homicidal gas chambers in the concentration camps must be placed before the bar of history and forensic specialists, chemists, scientists and criminologists rather than before the courts. If arbitrary laws seek to prosecute historical revisionists, then certain criteria as described in the law must be proved. As they now stand, Holocaust denial laws appear to deliberately conflate the process of generating controversy with “disturbing the public peace.” Moreover, the laws are based upon a flagrant double standard, for they are arbitrarily applied only to one specific group of individuals: those deemed to be Holocaust deniers.

The interests of justice demand that the law should be limited to clearly defined acts of violence or acts of specific incitement to commit crimes of violence. Clearly, Holocaust revisionism does not fit the criteria and thus the prosecution of Holocaust revisionists enters into the realm of interdicted thought crimes. No individual should be prosecuted on the basis of his or her personal beliefs or expressions of opinion. The highest obligation of the law is in fact to uphold and defend the right of individuals to speak their opinion freely, without fear of persecution.

In their zeal to prosecute the heretics and agnostics who publicly questioned the use of homicidal gas chambers in the concentration camps, it was necessary for German courts and prosecutors to rely on old legislation dating back to the Third Reich.

For example, in 1982 a court in Stuttgart, Germany ordered the seizure of all copies of the book, Der Auschwitz Mythos (The Auschwitz Myth)[13] authored by Wilhelm Stäglich, a former German judge. The book had originally been published in 1979, but evidently acting on the basis of repeated complaints, the German prosecutor’s office applied for the book to be banned on the ground that, by “denying the Nazi mass murder of Jews during the Second World War, it was inciting hatred against Jews.”[14]

Stäglich interpreted matters differently. On the basis of his experience and expertise serving as a judge in the Superior Court, Stäglich thoroughly scrutinized the evidence relating to homicidal gas chambers at Auschwitz concentration camp and arrived at the conclusion that mass murder on the scale claimed at Nuremberg was technically and logistically impossible. Exasperated and unable to charge Stäglich under laws enacted by the Federal Republic of Germany, prosecutors eventually discovered a legal precedent to charge him under provisions contained in an old law enacted during the Third Reich era. As a consequence, the former German judge was deprived of his doctorate, his book confiscated and banned, and all existing copies were consigned to the flames. The printing plates were ordered destroyed by the court.

Significantly, during the course of this trial, the prosecution was under no obligation to explain or demonstrate how the book was “inciting hatred against Jews.” If anything, Stäglich’s book incited hatred against himself.

Nevertheless, the court, in rendering its opinion, stated that Stäglich had deliberately ignored evidence proving the fact of genocide against the Jews. Neither did the court stipulate precisely what evidence was supposedly ignored, nor did they offer an explanation as to why Stäglich was legally obligated to accept such evidence. Obviously, Stäglich himself was contesting the past evidentiary record, but for the court, the reality of the mainstream version of the Holocaust was beyond debate and indisputable. As will be seen, the latter is a charge frequently leveled against revisionists prosecuted for Holocaust denial. Accused of irresponsibly distorting the facts, Stäglich and his publisher were only able to escape personal punishment due to the fact that prosecutions for publishing offences could only be initiated within six months of the date of publication. Nevertheless, Stäglich’s person and reputation were assailed and censured in the press.

Ironically, article 344 of German law, entitled “Prosecution of the Innocent,” also seemingly provides for the prosecution of government officials who maliciously prosecute individuals, but this legal safeguard is denied to accused “heretics” such as Wilhelm Stäglich.

Within Germany one of the primary instigators clamoring for Holocaust denial laws as well as censorship and repression of right-wing political parties was the ubiquitous Central Council of Jews in Germany (Zentralrat der Juden in Deutschland). Founded on 19 July 1950, the Council served as an umbrella organization for dozens of other Jewish associations. Describing itself as a federation of German Jews organizing numerous Jewish organizations throughout Germany, the Central Council monitors public statements, right- and left-wing political parties and other activities deemed to be anti-Semitic or otherwise antagonistic or detrimental to Jewish interests.

From its inception, the Council astutely maintained its offices in the German capital, first in Bonn, and subsequently relocating to Berlin so as to keep its finger on the pulse of the nation and influence legislators. The Central Council of Jews was also magnanimously subsidized by the German government. In effect, Council members were encouraged to spy on suspect individuals and organizations and denounce them to the authorities. The German government’s generous financial and unqualified moral support served as an incentive to council members to pursue their activities with unrestricted tenacity.

Interestingly, the Central Council of Jews in Germany was not even composed of German Jews, but Jews from Poland, who poured into Germany by the tens of thousands as illegal aliens during the post-war period.

From its inauspicious beginnings, the Central Council has been tainted by numerous allegations of fiscal corruption. During the administration of Werner Naumann, the first president of the Central Council, scandals involving “financial irregularities” were rife.

Under the subsequent leadership of Ignatz Bubis, the organization extended its influence by snooping and interfering in nearly every facet of German public life. The highly controversial Bubis was among the first to advocate harsh penalties for Holocaust deniers and called upon the German nation to preserve the “memory of the Holocaust.” Over the years, Bubis himself was beset and dogged by numerous scandals involving financial irregularities, speculation, and swindling, and drew the ire of both the left and right wing in Germany. Due to his perceived lack of ethics, Bubis was satirized by German playwright and film director Werner Fassbinder in his play, Trash, the City and Death, which debuted in the city of Frankfurt in 1985. Having caught wind of the play’s theme, Bubis was irate over Fassbinder’s depiction of him as a modern Shylock and countered by hijacking the stage with a number of his cohorts, forcibly preventing the play from opening.[15]

Following the death of Bubis in 1999, the Council split into two factions, both clamoring for equal financial support from the German government. In an attempt to extend its influence, the Council established a close network with other Jewish organizations around the world. All of these organizations were to act together to pursue a common agenda that specifically targeted Holocaust denial and perceived manifestations of anti-Semitism.

The great nation of France, the land of “liberty, equality and brotherhood” was the second western European nation to enact laws designed to punish Holocaust denial. In May 1986 Jewish organizations, acting in concert with the nation’s chief rabbi, Rene-Samuel Sirat, called for enactment of a law to punish Holocaust deniers and assorted agnostics. Under the tutelage of Rabbi Sirat, a number of Jewish academics, among them the prominent anti-revisionist author, Pierre Vidal-Naquet, Holocaust activists Serge and Beate Klarsfeld, and Georges Wellers, a former Auschwitz inmate and editor of Le Monde Juif, vociferously clamored for a bill in imitation of Israel’s anti-denial law.[16]

In spite of the most intense lobbying efforts, the law failed to be ratified until four years later, when a Socialist-Communist coalition government under the regime of President Francois Mitterand approved a Holocaust denial bill in July, 1990.[17]

It is perhaps fitting that France, once a bastion of progressive social thought and intellectual enlightenment, from whose sons and daughters arose such inimitable geniuses as Voltaire, Denis Diderot, Jean-Jacques Rousseau, and Rene Descartes, would also serve as the nation from whose womb arose the earliest outspoken proponents of Second World War historical revisionism in the persons of Paul Rassinier and Maurice Bardèche.

Conversely, as early as 1948 French citizens were also being targeted for prosecution in respect to thought crimes, which the government sought to justify on grounds of “attempting to justify a crime, racial discrimination against Jews, incitement to racial hatred, publication of material deemed injurious to youth, or personal injury.” Maurice Bardèche, an early French revisionist, was charged with “justifying crimes” after publishing his second book Nuremberg, or the Promised Land in 1948.

Paul Rassinier was a former communist and concentration camp survivor, arrested by the Gestapo in 1943 for his resistance activities, which included smuggling Jews into Switzerland. Rassinier spent the last two years of the war first in Buchenwald and thereafter transferred to the underground labor camp at Dora.

In 1948, Rassinier published Le Passage de la ligne (Crossing the Line), which was the first in a series of books that purported to show that the claims of many self-described concentration camp survivors were in fact grossly exaggerated. Rassinier denounced the brutal camp overseers, or kapos, rather than the SS staff, as being primarily responsible for the many cruelties inflicted on inmates in the camps.

Rassinier was also among the earliest proponents to claim that the Zionists purposefully latched onto the persecution of the Jews in order to provide a favorable political and moral climate for establishing the state of Israel at the expense of the indigenous population. In his Le Drame des Juifs européens (The Drama of European Jewry),[18] which was published in 1964, Rassinier advanced the thesis that the widely circulated stories of homicidal gas chambers reputedly used by the National Socialists to murder millions of Jews were stories deliberately nurtured and embellished by opportunistic Zionist propagandists as a political bludgeon to legitimate the illegal seizure of Palestine.

Rassinier’s groundbreaking work was virtually ignored by mainstream historians in France and suppressed for decades, but On December 29, 1978 and on January 16, 1979, Robert Faurisson, a professor of classical literature and an expert in textual analysis, published two articles in Le Monde openly proclaiming his rejection of homicidal gas chambers at Nazi concentration camps.[19] French Jews branded Faurisson’s essay, which relied upon original wartime documents, as offensively provocative and responded angrily to his revisionist conclusions.

In the pandemonium following the publication of his article, eight organizatons and two newspapers collectively brought civil and criminal lawsuits against Faurisson, provoking a storm of public controversy.

France had previously enacted a law against racial discrimination in 1972, and on the basis of this law Faurisson was accused of “falsification of history in the matter of the gas chambers.” The Paris Court of Appeals rendered a decision in April 1973, declaring him innocent of falsification of history, but found him guilty of “reducing his research to malevolent slogans,” and “personal injury.” As such, Faurisson was ordered to pay a small fine.

On the issue of whether Faurisson’s claims and methodology were valid or not, the first chamber of the Paris Court of Appeals paid tribute to the quality of his research, concluding that in his essay on the “problem of the gas chambers” there was no trace of rashness, or negligence, or of his having deliberately overlooked anything, nor any trace of a lie and that, as a consequence, he was entitled to claim that the gas chambers never existed.

The Court sagaciously focused on Faurisson’s inviolable right to freedom of speech as long as his opinions were expressed responsibly and without malevolence. In its final summation, the Court prudently proclaimed that “the value of the conclusions defended by Faurisson rests therefore solely with the appraisal of experts, historians and the public.”

Professor Faurisson was subsequently forced out of his position at the University of Lyons in central France.

The verdict and judgment did not sit well with Faurisson’s detractors, who responded with new strategies aimed at influencing French lawmakers. Subsequently, a parliamentary initiative designed to outlaw any public expression of criticism or questioning of the Holocaust was introduced before the French Assembly.

The two individuals most responsible for the passage of the July 1990 law were Communist Minister of Transport Jean Claude Gayssot and former Prime Minister Laurent Fabius, who announced his candidacy for the French Presidency in 2007. Fabius, of Jewish heritage, is a millionaire and a Socialist. In 1990 he served as president of France’s National Assembly. The Holocaust denial law was named after its two creators.

The ratification of such ominous legislation constituted an anachronistic throwback to the dark ages and a nadir in the history of the French Republic. Enlightened academics, jurists and concerned civil libertarians protested the ratification of this law in the same nation that proclaimed the “Rights of Man” in 1789. Interestingly, the French declaration on the rights of man preceded the emancipation of the Jews by Napoleon I in 1807-1811. It is perhaps an ironic twist of fate that the descendants of those people graciously granted full civil rights and liberties, including the right to free expression as equal citizens of France under Napoleon I, willfully served as the primary catalyst among those seeking to deprive their fellow citizens of theirs.

Notes: