International Criminal Justice Series Volume 19 Memory and Punishment Historical Denialism, Free Speech and the Limits of Criminal Law Emanuela Fronza International Criminal Justice Series Volume 19 Series editors Gerhard Werle, Berlin, Germany Moritz Vormbaum, Berlin, Germany Series Information TheInternationalCriminalJusticeSeriesaimstocreateaplatformforpublications in the whole field of international criminal justice. It, therefore, deals with issues relating, among others, to: – the work of international criminal courts and tribunals; – transitional justice approaches in different countries; – international anti-corruption and anti-money laundering initiatives; – the history of international criminal law. The series concentrates on themes pertinent to developing countries. It is peer- reviewed and seeks to publish high-quality works emanating from excellent schol- ars, in particular from African countries. Editorial Office Prof. Dr. Gerhard Werle Humboldt-Universität zu Berlin Faculty of Law Unter den Linden 6, 10099 Berlin, Germany [email protected] [email protected] More information about this series at http://www.springer.com/series/13470 Emanuela Fronza Memory and Punishment Historical Denialism, Free Speech and the Limits of Criminal Law 123 Emanuela Fronza Department ofLegal Sciences AlmaMater Studiorum UniversitàdiBologna Bologna Italy ISSN 2352-6718 ISSN 2352-6726 (electronic) International Criminal JusticeSeries ISBN978-94-6265-233-0 ISBN978-94-6265-234-7 (eBook) https://doi.org/10.1007/978-94-6265-234-7 LibraryofCongressControlNumber:2017959910 PublishedbyT.M.C.ASSERPRESS,TheHague,TheNetherlandswww.asserpress.nl ProducedanddistributedforT.M.C.ASSERPRESSbySpringer-VerlagBerlinHeidelberg ©T.M.C.ASSERPRESSandtheauthor2018 Nopartofthisworkmaybereproduced,storedinaretrievalsystem,ortransmittedinanyformorbyany means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permissionfromthePublisher,withtheexceptionofanymaterialsuppliedspecificallyforthepurposeof beingenteredandexecutedonacomputersystem,forexclusiveusebythepurchaserofthework. Theuseofgeneraldescriptivenames,registerednames,trademarks,servicemarks,etc.inthispublication doesnotimply,evenintheabsenceofaspecificstatement,thatsuchnamesareexemptfromtherelevant protectivelawsandregulationsandthereforefreeforgeneraluse. Printedonacid-freepaper ThisT.M.C.ASSERPRESSimprintispublishedbySpringerNature TheregisteredcompanyisSpringerScience+BusinessMediaB.V. Theregisteredcompanyaddressis:VanGodewijckstraat30,3311GXDordrecht,TheNetherlands For my father who taught me the culture of freedom and the culture of limits For my mother who reminds me to forget For Mattia, Cosimo and Simone, my companions in time and memory Foreword1 In the Outer London district of Walthamstow stands an eighteenth-century house originally used as a workhouse for the local poor, one of many that once dotted Britain.Today,thebuildingisknown(tothefewwhoknowit)astheVestryHouse Museum.Itisoneofthosemuseumswhosetwoorthreeemployeeslavishanardent welcomeonvisitorssimplyforwalkingthroughthedoor,delightedthatsomeoneis dropping in. The collection comprises no more than half a dozen small rooms documenting local history through to the twentieth century, no different from countless small-town museums around Europe. What they lack in regal splendour they reclaim in humble charm. Suchplacescertainlytellusaboutthepast.Butdotheyteachusanythingabout how states use law to promote historical memory? The Vestry House is not a private collection. Like many museums, it is government-run. Thesitewaslegally chartered bygovernment asamuseum asfar back in 1931. Visitors who pay close attention will certainly carry away an impressiondifferentfromthepicture-booknostalgiawhichmightatfirsthavelured them in. They will leave with a remarkably bleak, un-celebratory history. The Vestry House stands not to sound trumpets of Britain’s imperial past, but to invite critical reflection. That,atitsbest,iswhathappenswhengovernmentsuselaw,suchastheVestry House charter, to promote public understandings of history, not to woo the public with national self-flattery buttourge contemplation anddialogue. Even if that aim was not altogether clearly envisaged in the original charter, it is certainly how officials interpret it today. Such use of law to shape historical consciousness does not always reflect any such socio-critical motive. Throughout the world today, states use legal means, 1SomepassagesfromthisForewordareadaptedfromE.Heinze,‘BansonHolocaustdenialdon’t help Jews’, 8 November 2016 (https://www.opendemocracy.net/can-europe-make-it/eric-heinze/ bans-on-holocaust-denial-don-t-help-jews), originally published at OpenDemocracy.net under a CreativeCommonsLicence. vii viii Foreword such as censorship and penalties for open dissent, to impose uncritically minded nationalism.Inadditiontosuchpunitivemeans,statesalsousenon-punitivemeans suchasmuseums,butwithnosuchdialecticalaspirationinmind—spacesdedicated to one-sided national glorification, often at the expense of silencing more sinister pasts.2 Studies of state writings and rewritings of history are long established and well known.Butdetailedandcomparativescholarlyattentiontothespecificroleplayed by law is remarkably new. One anthology undertaking that comparative study, edited by Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias, is entitled Law and Memory: Towards Legal Governance of History. It includes chapters on Canada, the Czech Republic, Greece, Hungary, Israel-Palestine, Peru, Poland, Romania, Russia, Ukraine and Spain.3 Another collection, edited by Kalliopi Chainoglou, Barry Collins, Michael Phillips and John Strawson, is entitled Injustice, Memory and Faith in Human Rights. It includes chapters on Australia, Bangladesh, ISIS, New Zealand, Northern Ireland and Spain.4 With such anthologies,andmanyotherpublishedworks,wearewitnessingthebirthofanew discipline, or rather an ‘inter-discipline’. We observe the study of law intersecting not only that of history but also with studies of politics, culture and society. Emanuela Fronza leads in this field. The present monograph offers a probing, rigorous analysis not only of the complex laws, but of the fraught ethics and emotionsanimatingthelegislationandadjudicationofmemorylaws,alongwiththe risks they pose to democratic public discourse. In the spirit of London’s Vestry House, Fronza wholeheartedly commits herself to states adopting a socio-critical stancetowardstheirnationalhistories.Thisbookshowshowdifficultthatidealcan be to achieve. One of the salient problems to arise under the more controversial memory laws involves the necessary extent and limits offree speech within a robust democracy. That states must commemorate the victims of atrocities is certain; that they must punish those who, howeverbenignly or maliciously, may challenge such histories, is, as Fronza explains, far less certain. The present study emerges from Fronza’s yearsofpainstakingandcomprehensiveexaminationofthecriminalpenalisationof ‘negationism’ (historical denialism), particularly of twentieth-century genocides. Fronza examines denialism as a criminal offence, its evolution and questions of constitutional legitimacy through a comparative European survey, exploring them as part of the internationalisation of legal norms and criminal justice—a study 2On distinctions between punitive and non-punitive approaches to disseminating state-approved histories, see, e.g. Heinze, E., ‘Beyond “memory laws”: Towards a general theory of law and historical discourse’, in U. Belavusau and A. Gliszczyńska-Grabias (eds.), Law and Memory: TowardsLegalGovernanceofHistory.Cambridge:CambridgeUniversityPress(2017),pp.413– 33,at415–21. 3U.BelavusauandA.Gliszczyńska-Grabias(eds.),LawandMemory:TowardsLegalGovernance ofHistory.Cambridge:CambridgeUniversityPress(2017),pp.413–33,at415–21. 4K. Chainoglou et al. eds., Injustice, Memory and Faith in Human Rights. Abingdon, UK: Routledge(2017). Foreword ix particularly relevant in our era of ‘post-truth’ and fake news proliferated through new electronic technologies. Consider the example of modern-day Germany. ‘I’d rather not think about how horrible Germany would be’, exclaimed Stephan J. Kramer, General Secretary of Germany’s Central Council of Jews, ‘if Holocaust denial were lawful’.5 What else could he say? The Holocaust had almost extinguished Germany’s Jewish com- munity. Numbers have revived since the fall of the Berlin Wall, but remain tiny.6 For many who have studied the rise of fascism in the early twentieth century, Kramer’sresponseseemsobvious.Ofcourse,Germanlawtodayprovidesiron-clad guaranteesforfreespeech.Fordecades,therangeandqualityofthecountry’sprint andbroadcast mediahave beensecond tonone,noticeably superiorinbreadthand depth to those of English-speaking nations. Notwithstanding the bogus scientific façade, however, Holocaust denial is unequivocally hate speech, as research has repeatedly shown.7 For most of the German population, the scale and brutality of the Shoah have createdamoralabsolute.Nothingthatwouldappeartominimiseitsgravitycanbe ethical. Many Germans believe thattheirlaw must reflect that ethics. Forthem, no moralvalue,noteventheonemostdistinctiveofademocraticsphere—freespeech —can trump the nation’s duty to honour both the dead and the survivors. In 2008, Dr. Wolfgang Hoffmann-Riem, retiring from the Constitutional Court, nevertheless voiced his reservations about anti-negationist bans. Kramer then fired back. ‘It is irresponsible for a legal authority to speak so thoughtlessly’. Yet Hoffmann-Riem is hardly famous as a political extremist. Any political affiliations traceabletohimappeartobeofamoderatecentre-left.Hisreputationasguardianof civil liberties, on one of the most respected courts in the Western world, remains untainted.Whateverpersonalfaults he may harbour asanindividualorasajudge, careless speech scarcely counts among them. What Hoffmann-Riem doubted was whether the bans serve their purpose, the same purpose Kramer pursues, namely, to safeguard the memory of millions of innocent dead. I share his doubt. Emerging and transitional democracies—as the Federal Republic had been in the war’s aftermath—may benefit from bans on hateful expression. (And even that concession can be made only with weighty qualifications. In many such societies, hate speech bans are manipulated by 5See,e.g.FrankJansen,‘Holocaust-Leugnernichtbestrafen’,DerTagesspiegel,10July2008,at http://www.tagesspiegel.de/politik/ex-verfassungsrichter-holocaust-leugner-nicht-bestrafen/ 1275952.html(retrieved25September2017). 6S. Urban, ‘The Jewish Community in Germany: Living with Recognition, Anti-Semitism and SymbolicRoles’,JerusalemCenterforPublicAffairs—IsraeliSecurity,RegionalDiplomacy,and InternationalLaw,29October 2009,athttp://jcpa.org/article/the-jewish-community-in-germany- living-with-recognition-anti-semitism-and-symbolic-roles/. 7Benz, W. (2005) Was ist Antisemitismus? (2nd edn.) Munich: Beck, R. Cohen-Almagor, ‘HolocaustDenialisaFormofHateSpeech’,2AmsterdamLawForum1(2009);Taguieff,P.-A. (2002)LaNouvellejudéophobie.Paris:MilleetUneNuits;Taguieff,P.-A.(2004).Prêcheursde haine:Traverséedelajudéophobieplanétaire.Paris:MilleetUneNuits. x Foreword governmentsnottoprotectvulnerablegroupsbuttoquelldissenters.)ButGermany ceased long ago to be an emerging democracy. For many years now, The Economist’sannualDemocracyIndexhasplacedEurope’sdominantpoweramong theworldleaders, joined by societies like Norway and Canada—far in front ofthe USA, and also ahead of France and Britain.8 Butdon’tthosecountriesalsobancertainformsofhatespeech?Yes(asidefrom theUSA).Evenwithinthetop-rankeddemocracies,however,weheardoubtsabout whether banning speech is right in principle. Some have also asked, as a practical matter, whether bans end up doing more harm than good.9 Those concerns are not voicedbyfanaticsorbypeopleindifferenttotheplightofthehistoricallyrepressed. A common argument in defence of bans is that democracies are not immune fromtheexcessesofhatespeech.10TheWeimarrepublic,onthatview,showshow hate speech in today’s democracy can snowball into tomorrow’s genocide. The problemwiththatclaimisits‘onesizefitsall’assumption.Notalldemocraciesare alike.Risksassociatedwithahighlyflawedstatecannotsocasuallybeattributedto all democracies across the board. Weimar was scarcely more than an on-paper democracy, boasting none of the historical, institutional or cultural supports so conspicuous among the Economist’s top ten or fifteen contenders. In a word, the familiar cry of ‘Never Again’ meant something very different in 1946 than it means in 2016. The law must start to reflect that change. The Nazi regime represented absolute evil. It is by no means obvious, however, what the ‘opposite’ofthat regime should look like.One evil oftheThird Reich wasindeed hatespeech,11fromwhichwemightdeducetheneedforitsopposite—theneedfor bans. Anequalevil,however,wassuppressionoffreespeech,12ofthetypethatmight havecounteredNaziexcesses.Fromthatevilwecanjustasplausiblydeduceaneed for the abolition of censorship. Neither view is self-evident. Therefore neither is horrible, silly, nor worthy simply to be derided. Yet that is what Kramer did by chastising Hoffmann-Riem in such dismissive terms. Kramer did not simply con- demn either the Holocaust or its denial—horrors which we must indeed decry. He instead took a very worrying step further. He ended up condemning a proposal made by an experienced, conscientious jurist concerning the best response of law and of government. 8TheEconomist—IntelligenceUnit,‘DemocracyIndex2015:DemocracyinanAgeofAnxiety’. 9AlexandreLévy,‘Lesgroupesviolents,plusfacilesàfustigerqu’àinterdire’,L’Opinion,09June 2013, at http://www.lopinion.fr/edition/politique/groupes-violents-plus-faciles-a-fustiger-qu-a- interdire-868. 10Eric Heinze, ‘Nineteen Arguments for Hate Speech Bans—And Against Them’, Free Speech Debate, 3 March 2014, at http://freespeechdebate.com/en/discuss/nineteen-arguments-for-hate- speech-bans-and-against-them/. 11‘Der Stürmer—“Die Juden sind unser Unglück!”’, Holocaust Education & Archive Research Team,athttp://www.holocaustresearchproject.org/holoprelude/dersturmer.html. 12‘NaziPropagandaandCensorship’,TheHolocaust:ALearningSiteforStudents,athttps://www. ushmm.org/outreach/en/article.php?ModuleId=10007677.