Senior Lecturer in Law James Mendelsohn comments on the growing trend of ‘Holocaust Denial’ and its status in law
“In an age of slogans like “fake news” and “post-truth”, it is grimly fitting that the distasteful topic of Holocaust denial has hit the news several times in 2017. In January, the film Denial (starring Rachel Weisz and Timothy Spall) was released in the UK. It portrays the famous 2000 libel trial involving the British Holocaust denier David Irving and the American academic Deborah Lipstadt, in which the court found that Irving was a racist and an antisemite who had deliberately falsified history for ideological purposes. In the same month as the film’s release, however, it was reported that a new generation of deniers was emerging. In August, the denier Ernst Zündel died in Germany at the age of 78.
The seriousness of denial
Lipstadt’s 1993 book Denying the Holocaust: The Growing Assault on Truth and Memory remains a key work. Lipstadt forensically scrutinises deniers’ fraudulent academic methods and malign motives. Since Holocaust denial has no basis in fact, deniers often have an ideological agenda, such as the exoneration of the Nazis, the rehabilitation of fascism, the vilification of Jews and/or hostility towards the state of Israel. Lipstadt also outlines why denial is so hurtful. By implying that they are lying about their horrific experiences, deniers abuse Holocaust survivors. They also perpetuate a key feature of the Holocaust itself: Jews being transported to Poland were told they would be safe, and had no inkling of their fate until they entered the gas chambers. By denying both the existence of the gas chambers and the deliberate mass murder of Jews, deniers continue this deception. Unsurprisingly, therefore, the International Holocaust Remembrance Alliance’s Working Definition of Antisemitism, which the UK government adopted last year, includes Holocaust denial among its examples of contemporary antisemitism. However, it is not only Jews to whom denial is a concern. Since deniers ditch recognised academic methods in favour of fabrication and the distortion of the historical record, they pose a threat to all who practise proper research based on factual evidence and reason. Holocaust denial, like the denial of other genocides, is perhaps the ultimate “fake news”.
Whether Holocaust denial should be criminalised, however, is another matter. In the United Kingdom, freedom of expression has long been recognised as a fundamental legal right – both under the common law and under Article 10 of the European Convention on Human Rights. The latter is given effect in domestic law by the Human Rights Act 1998. This will remain the case after Brexit, unless that Act is repealed.
The first paragraph of Article 10 establishes a basic right to freedom of expression, which includes the “freedom to hold opinions and to receive and impart information and ideas without interference by public authority.” In broad terms, this establishes a right to hold and express ideas which others may find offensive; it also, implicitly, establishes that there is no right not to be offended. The right to freedom of expression is not an absolute right, however: the second paragraph of Article 10 sets out various grounds on which the right may be legally restricted if this is necessary in a democratic society. As yet, the UK Parliament has passed no law criminalising the denial of the Holocaust. In contrast, it is a criminal offence to deny the Holocaust in Germany, France, Austria and Canada. David Irving, who remains among the best-known deniers, was jailed for three years in Austria in 2006.
Debates about the efficacy and desirability of such laws rumble on. Interestingly, Deborah Lipstadt herself opposes such laws as a form of censorship which is less effective at combatting denial than history and truth. Others, such as Charles Asher Small of the Institute for the Study of Global Antisemitism and Policy, contend that such laws are a necessary weapon in the fight against resurgent antisemitism. As the last of the survivors and eyewitnesses of the Holocaust die, denial is likely to increase, particularly on social media and in the dark places of the internet. The debate about how best to counter it, will therefore continue.”
A recent story on Holocaust Denial appeared in International Business Times