Denial is not a criminal matter - The Jewish Chronicle

In its issue of October 3, the JC ran the story of the arrest, at Heathrow airport on an EU warrant issued by the German government, of a German-born Holocaust-denier, Frederick Toben. Mr Toben is actually an Australian citizen. No matter; he arrived at Heathrow from the USA, en route to Dubai. The Metropolitan Police arrested him because the German government alleges that he has persisted in posting material on the internet denying or "playing down" the Nazi Holocaust of the Jews.

In 1999, Mr Toben served a term of imprisonment in Germany after publishing pamphlets denying that mass murders of Jews were carried out at Auschwitz. Following his appearance before London magistrates earlier this month, a spokesperson for the Community Security Trust was quoted as having praised the action of the British authorities in executing the EU warrant and as having expressed the hope "that the German law will take its course".

I hope that nothing of the kind befalls Mr Toben. I hope that the extradition warrant is quashed, so that Mr Toben is once again free to roam the world denying the Holocaust to his heart's content. I also hope that not only will this kind of incident never happen again in this country, but that the British government will demand that German (and Austrian) laws criminalising Holocaust-denial are repealed at the earliest possible moment.

A great deal has been written in the press about Toben's disgraceful treatment. My fellow JC columnist Melanie Phillips has rightly condemned this treatment as a denial of free speech. On October 10, Anshel Pfeffer correctly argued in the JC that prosecuting Holocaust-deniers is a waste of money, serving only to give these odious cretins the attention they crave. With all of this I heartily agree. But my worries about the Toben case go much deeper.

My worries have to do with the alarming tendency of nation-states to criminalise the past and, in particular, with a wretched proposal now under consideration by the European Union, to compel EU member states to enforce particular interpretations of history under the guise of "combating racism and xenophobia". This proposal emanates (surprise, surprise!) from the German government, whose justice minister apparently wants to bring about a state of affairs in which "publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes" would, throughout the EU, be punishable by between one and three years' imprisonment.

Ask yourself how such a mad law might be enforced, and with what result. Ask yourself who will decide whether a particular historical event amounts to a "genocide". Ask yourself by what grotesque yardstick a trivialisation of, say, a war crime amounts to a "gross" trivialisation.

But as you begin to answer these questions, bear the following in mind. In Turkey, it is currently a criminal offence to assert that Ottoman treatment of the Armenians 90 or so years ago amounted to genocide. But in Switzerland it is a criminal offence to assert the precise opposite. In France, in 1995, the distinguished Jewish historian of the oriental world and of Islam, Bernard Lewis (born in Stoke Newington and now professor at Princeton University), was actually convicted for having written an article (in Le Monde) arguing that, although the Armenians were brutally repressed, this did not amount to a genocide because the massacres that took place were neither government-controlled nor sponsored.

As the distinguished British historian Timothy Garton Ash (a professor at Oxford) recently reminded us in The Guardian (October 16), according to a French law promulgated in 2001, slavery has been designated as a crime against humanity. If, while on holiday in France, I am overheard casually denying that slavery did in fact amount to a crime against humanity, do I risk being hauled before the French courts? And if I escape to England will the boys in blue arrest me here on a French-inspired EU extradition warrant? Or suppose I declare that the killing of Palestinians at Deir Yassin in 1948 did not actually amount to a war crime. If the EU proposal were implemented, would I face imprisonment, just because I had exercised my professional judgment in a way that upset Arab propagandists?

The task of the historian is to investigate, confront, challenge and, if necessary, correct society's collective memory. In this process, the state ought to have no role whatever, none at all. Certainly not in the UK, which delights in presenting itself as a bastion of academic freedom.