April 2007
LONDON – People who question the official history of recent conflicts in Africa
and the Balkans could be jailed for up to three years for "genocide denial"
under new legislation proposed by the European Union.
Germany, current holder of the group’s rotating presidency, will table new
legislation to outlaw "racism and xenophobia" this spring. Included in the draft
EU directive are plans to outlaw Holocaust denial.
But the proposals, as seen by The Daily Telegraph, go much further and would
criminalize those who question the extent of war crimes that have taken place in
the past 20 years.
The legislation is expected to trigger a major row across Europe over free
speech and academic freedom.
Deborah Lipstadt, a professor of modern Jewish and Holocaust studies at Emory
University in Atlanta, believes the German proposals are misplaced.
"I adhere to that pesky little thing called free speech, and I am very concerned
when governments restrict it," she said.
"How will we determine precisely what is denial? Will history be decided by
historians or in a courtroom?" Berlin’s draft EU directive extends the idea of
Holocaust denial to the "gross minimization of genocide out of racist and
xenophobic motives" to include crimes dealt with by the International Criminal
Court.
The ICC was set up in 2002 after international outcry about war crimes and
alleged genocides in the former Yugoslavia and Africa. It was felt that the
courts in those countries were either unable or unwilling to ensure justice was
done.
The draft text states: "Each member state shall take the measures necessary to
ensure that the following intentional conduct is punishable: ‘publicly
condoning, denying or grossly trivializing of crimes of genocide, crimes against
humanity and war crimes as defined in’… the Statute of the ICC."
Retired Major General Lewis MacKenzie, the former commander of UN peacekeepers
in Bosnia, courted controversy two years ago by questioning the numbers killed
at Srebrenica in 1995. He took issue with the official definition of the
massacre as genocide and highlighted "serious doubt" over the estimate of 8,000
Bosnian fatalities and argued math did not support the figure.
"What happened in Srebrenica was definitely a war crime," he said from his home
near Ottawa yesterday. "What we’re doing is debating over the definition of
genocide."
Balkans human rights activists have branded Gen. MacKenzie an "outspoken
Srebrenica genocide denier." and, if approved, the EU legislation could see
similar comments investigated by the police or prosecuted in the courts after
complaints from war crimes investigators or campaigners.
Gen. MacKenzie said he would be surprised if the proposed legislation passed.
The EU would also have a difficult time defining genocide, he said, adding it
will be interesting to see whether the proposed law’s reach extends outside
Europe.
Let’s face it: I’m more than happy to put my record of service and comments up
for public scrutiny. There’s nothing I’m going to hide," Gen. MacKenzie said.
A German government spokesman said: "Whether a specific historic crime falls
within these definitions would be decided by a court in each case." If
agreed by EU member states, the legislation is likely to declare open season for
human rights activists and organizations seeking to establish a body of genocide
denial law in Europe’s courts.
European Commission officials insist the legislation is necessary: "Racism and
xenophobia can manifest themselves in the form of genocide denial, so it is very
important to take strong action."
But the legislation faces stiff opposition from academics who fear it would
stifle debate over some of the biggest issues in contemporary international
relations.
Prof. Lipstadt has an international reputation for challenging Holocaust denial.
She was sued unsuccessfully for libel in 2000 by David Irving, the British
historian, after exposing his misrepresentation of historical evidence and
association with right-wing extremists. But she does not believe denying the
Holocaust or genocide should be a crime.
"The Holocaust has the dubious distinction of being the best documented genocide
in history," she said.
"When you pass these kinds of laws it suggests to the uninformed bystander that
you don’t have the evidence to prove your case."
The professor is also worried about broad-brush definitions of genocide denial,
particularly when applied to recent conflicts that are still being researched
and investigated.
Even without the threat of prosecution, there is concern that academics will try
to avoid controversy by ignoring or even suppressing research that challenges
genocide claims or numbers of those killed.
David Chandler, a professor of international relations at the University of
Westminster’s Centre for the Study of Democracy, fears the draft law could
inhibit his work.
"My work teaching and training researchers, and academic work more broadly, is
focused upon encouraging critical thinking. Measures like this make academic
debate and discussion more difficult," he said.
Prof. Chandler also worries that the legislators will close down democratic
debate on foreign policy. "Genocide claims and war-crimes tribunals are highly
political and are often linked to controversial Western military interventions.
Should this be unquestioned? Is it right for judges to settle such arguments?"
he asked.
Norman Stone, a professor of history at Turkey’s Koc University, argues that any
attempt to legislate against genocide denial is "quite absurd.
"I
am dead against this kind of thing," he said. "We cannot have EU or
international legal bodies blundering in and telling us what we can and cannot
say."
From the
Daily Telegraph, and published in the National Post, Saturday,
February 3, 2007, p. A17, with files from MaryVallis.
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