Chapter

The Law of Holocaust Denial in Europe

Laurent Pech

in Genocide Denials and the Law

Published in print January 2011 | ISBN: 9780199738922
Published online May 2011 | e-ISBN: 9780199895199 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199738922.003.0007
The Law of Holocaust Denial in Europe

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The full implementation of the recently adopted EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law (EU FD on racism) will radically alter the legal landscape in Europe. This chapter offers a critical review of the EU FD on racism, arguing that the political necessity of laws punishing genocide denial and the legal need for an EU-wide prohibition may be questioned seriously. It begins by considering why and to what extent national approaches on the question of Holocaust denial have diverged. This review will help determine the national model(s) the drafters of EU FD on racism sought to emulate. It also will prove, on the one hand, that scholars were not entirely right to oppose an American approach to a European model regarding hate speech—if one agrees to include Holocaust denial in this category—and, on the other hand, that even among EU Member States with criminal provisions aimed at punishing Holocaust denial, these provisions have been drafted diversely and interpreted. What is striking, however, is that national courts in militant democracies invariably have upheld the compatibility of Holocaust denial laws with the right to freedom of expression. The chapter argues that the legal reasoning developed by German and French courts is far from being entirely convincing. It further argues that the European Court of Human Rights should have refrained from labeling the Holocaust a clearly established historical fact for which denial constitutes ipso facto an “abuse of right”.

Keywords: genocide denial; criminal law; European law; racism; xenophobia; national courts; freedom of expression

Chapter.  22436 words. 

Subjects: Public International Law

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