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Against the proposed Europe-wide legal ban on genocide denial
Posted: January 28, 2015 in anti-semitism and racism, genocide,
Israel / Palestine
Tags: anti-semitism, European Council on Toleration and
Reconciliation, genocide denial,Holocaust denial, Israeli ban on
Nakba, Nakba
I published this letter in the Guardian on 27 January 2015 (scroll
down for my letter):
http://www.theguardian.com/world/2015/jan/27/hopes-and-fears-in-shadow-of-holocaust
'The proposals of a European Council on Toleration and Reconciliation
report for a Europe-wide ban on genocide denial, as part of a swathe
of new legal measures (Jewish groups want EU ban on intolerance, 26
January), are highly problematic. First, it is proposed to ban denial
of the Holocaust, but not of other historic cases such as the Armenian
genocide or the Palestinian Nakba - although Nakba denial (legally
enforced in Israel) is as likely to contribute to antisemitism (a
major concern of the report) as is Holocaust denial.
Second, it is proposed to outlaw denial only of any "other act of
genocide the existence of which has been determined by an
international criminal court or tribunal". This sounds reasonable, but
international courts try individuals, only adjudicating history
incidentally; most recent genocide, like historic genocide, has not
been tried internationally; and these courts' operations are highly
politically constrained.
The proposed bans will only lead to arbitrary and contested
prosecutions which increase polarisation, not reconciliation. It is
better to combat genocide denial through argument and evidence.
Martin Shaw
Author, What is Genocide?'
To expand, there are at least five separate issues here:
1. Banning ideas, however reactionary, as such - rather than when they
threaten violence or discrimination - breaches freedom of speech.
2. The report doesn't say what is to be banned - 'literal' denial (of
the facts) or 'interpretative' denial (whether the events constitute a
genocide). My reference to the Nakba illustrates the contentiousness
of the latter issue, and the line where legitimate debate and denial
gets blurred. I do not think it is possible to legally define this
line: it is a matter for historians.
3. Naming the Holocaust as a genocide that can't be denied, while
requiring all other genocides to pass a legal test before their denial
counts for the purposes of banning, is inconsistent and protects the
memory of the Holocaust while not protecting that of many other
historic and contemporary episodes.
3 In any case, there is no international legal framework for
recognising genocides and the corpus of international legal decisions
is decidedly not robust enough to provide an impartial framework. Many
cases cannot be brought before international courts for political
reasons, and courts are subject to political pressures in operations,
leading them to inconsistent decisions which even involve genocide
denial as in the case of the International Court of Justice decision
on Bosnia.
4 In the contemporary European context, to legally ban Holocaust
denial while not protecting the memory of other genocides such as the
Nakba, which matter particularly to Muslim and Arab minorities, can
easily be construed as a partisan intervention, and enforcement could
easily contribute to polarisation. The incarceration of
Holocaust-denying 'historian' David Irving in Austria did little good,
and the indictment of Muslim Holocaust-deniers in France, say, could
actively cause harm.
5 The report is considerably motivated by the desire to stem (indeed
ban) anti-semitism. However we know that contemporary European
anti-semitism, while rooted in jihadist ideology as well as historic
legacies, is hugely stimulated by Israel's treatment of the
Palestinians, as the big spike following last summer's Israeli
atrocities in Gaza showed. Israel has instrumentalised the Holocaust
while simultaneously banning commemoration of the Nakba. Netanyahu is
now shamelessly instrumentalising the recent genocidal mini-massacre
of Jews in Paris. I argue that to weaken anti-semitism, rather than
reinforcing these Israeli narratives by banning Holocaust denial, it
is necessary to seek a settlement between Israel and the Palestinians
and to challenge Israeli ideology. Recognition of the Nakba could be a
powerful step in that direction. The European Council on Toleration
and Reconciliation would have done better to focus on.this alternative
agenda.
http://martinshaw.org/2015/01/28/against-the-proposed-europe-wide-legal-ban-on-genocide-denial/
Posted: January 28, 2015 in anti-semitism and racism, genocide,
Israel / Palestine
Tags: anti-semitism, European Council on Toleration and
Reconciliation, genocide denial,Holocaust denial, Israeli ban on
Nakba, Nakba
I published this letter in the Guardian on 27 January 2015 (scroll
down for my letter):
http://www.theguardian.com/world/2015/jan/27/hopes-and-fears-in-shadow-of-holocaust
'The proposals of a European Council on Toleration and Reconciliation
report for a Europe-wide ban on genocide denial, as part of a swathe
of new legal measures (Jewish groups want EU ban on intolerance, 26
January), are highly problematic. First, it is proposed to ban denial
of the Holocaust, but not of other historic cases such as the Armenian
genocide or the Palestinian Nakba - although Nakba denial (legally
enforced in Israel) is as likely to contribute to antisemitism (a
major concern of the report) as is Holocaust denial.
Second, it is proposed to outlaw denial only of any "other act of
genocide the existence of which has been determined by an
international criminal court or tribunal". This sounds reasonable, but
international courts try individuals, only adjudicating history
incidentally; most recent genocide, like historic genocide, has not
been tried internationally; and these courts' operations are highly
politically constrained.
The proposed bans will only lead to arbitrary and contested
prosecutions which increase polarisation, not reconciliation. It is
better to combat genocide denial through argument and evidence.
Martin Shaw
Author, What is Genocide?'
To expand, there are at least five separate issues here:
1. Banning ideas, however reactionary, as such - rather than when they
threaten violence or discrimination - breaches freedom of speech.
2. The report doesn't say what is to be banned - 'literal' denial (of
the facts) or 'interpretative' denial (whether the events constitute a
genocide). My reference to the Nakba illustrates the contentiousness
of the latter issue, and the line where legitimate debate and denial
gets blurred. I do not think it is possible to legally define this
line: it is a matter for historians.
3. Naming the Holocaust as a genocide that can't be denied, while
requiring all other genocides to pass a legal test before their denial
counts for the purposes of banning, is inconsistent and protects the
memory of the Holocaust while not protecting that of many other
historic and contemporary episodes.
3 In any case, there is no international legal framework for
recognising genocides and the corpus of international legal decisions
is decidedly not robust enough to provide an impartial framework. Many
cases cannot be brought before international courts for political
reasons, and courts are subject to political pressures in operations,
leading them to inconsistent decisions which even involve genocide
denial as in the case of the International Court of Justice decision
on Bosnia.
4 In the contemporary European context, to legally ban Holocaust
denial while not protecting the memory of other genocides such as the
Nakba, which matter particularly to Muslim and Arab minorities, can
easily be construed as a partisan intervention, and enforcement could
easily contribute to polarisation. The incarceration of
Holocaust-denying 'historian' David Irving in Austria did little good,
and the indictment of Muslim Holocaust-deniers in France, say, could
actively cause harm.
5 The report is considerably motivated by the desire to stem (indeed
ban) anti-semitism. However we know that contemporary European
anti-semitism, while rooted in jihadist ideology as well as historic
legacies, is hugely stimulated by Israel's treatment of the
Palestinians, as the big spike following last summer's Israeli
atrocities in Gaza showed. Israel has instrumentalised the Holocaust
while simultaneously banning commemoration of the Nakba. Netanyahu is
now shamelessly instrumentalising the recent genocidal mini-massacre
of Jews in Paris. I argue that to weaken anti-semitism, rather than
reinforcing these Israeli narratives by banning Holocaust denial, it
is necessary to seek a settlement between Israel and the Palestinians
and to challenge Israeli ideology. Recognition of the Nakba could be a
powerful step in that direction. The European Council on Toleration
and Reconciliation would have done better to focus on.this alternative
agenda.
http://martinshaw.org/2015/01/28/against-the-proposed-europe-wide-legal-ban-on-genocide-denial/