Genocide Denial Bill Raises Free-Speech Fears EU Law Proposal

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."