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The rationale for genocide denial laws has undergone a shift similar to that for hate speech. In the wake of World War II, Germany’s strict laws prohibiting the use of Nazi symbols or the promotion of Nazi ideology were designed to stifle any revival of the movement or the passions of anti-Semitism. But rather than fading away with the passage of time, Holocaust denial laws proliferated in Europe right through the 1990s, more as political statements against anti-Semitism than as responses to some genuine prospect of incitement to genocide. Indeed, it may have been the increasing marginality of Holocaust deniers that made laws somewhat easier to propose and pass than in the immediate aftermath of WWII.
In 2006 France’s legislature considered criminalizing denial of the Armenian genocide, but hardly because there was a live prospect of repetition, much less in France. Also in 2006, a Belgian cabinet minister proposed a denial law for the Rwandan genocide. It is safe to assume this was more likely a political gesture in view of Belgium’s historical role in Rwanda than an admission that Belgium is a serious incubator of renewed violence against Tutsi.
Joel Simon, executive director of the Committee to Protect Journalists, describes a dynamic common to many African countries since the International Criminal Tribunal for Rwanda convicted individuals of inciting genocide over the radio. Political parties are often organized along ethnic or tribal lines; reporting on government failings ignites political protests; and the government then takes action against the media on the basis of “incitement to rebellion” or “incitement to hatred,” citing the need to avert large-scale ethnic violence. This dynamic is particularly evident in Rwanda, where charges of “divisionism” or “negationism” (the latter, in essence, genocide-denial) are frequently launched against perceived government opponents and critics, including Rwanda’s one independent newspaper, Umuseso.23
The potential of genocide denial laws for abuse should make us think hard about their rationale. In Rwanda the blood of genocide is barely dry and there would seem to be a more compelling case for outlawing genocide denial. And yet the government’s use of genocide denial laws to stifle critics is cautionary. Prosecuting genocide denial to protect victims from insult or the genuine harm that denial of their suffering inflicts can easily be taken to extremes. And taken to extremes, such laws can create new means of persecution that could well stifle political and social debate and undermine pluralism. The criminalization of genocide denial seems more plausibly grounded in concerns over inciting violence or even genocide, and the evaluation of whether speech should be suppressed should take into account the likelihood of inciting criminal acts in the particular context.
Making genocide denial a crime of political correctness has rather obvious deleterious effects. It makes martyrs of cranks, as has been the case with Austria’s conviction of David Irving, a Nazi apologist whose fade into obscurity was only halted by his trial in February 2006. It invites expansive interpretations of “denial” and “genocide” and the slide into new crimes of ideological deviance, as governments are often eager to rally support by tarring critics as threats to national security or human rights. And it cheapens the concept of genocide in the process, arguably making governments less willing to intervene or call the deliberate destruction of peoples by its true name.
That said, genocide denial, even when not amounting to incitement to a crime, is often a type of hate speech that inflicts serious harm, both to the group and to individual members. The state’s duty regarding genocide denial does not begin and end with the criminal law. Above all, the state should recognize the crime of genocide where the evidence establishes it, and provide appropriate avenues of reparation and prevention, including positive acts of acknowledgment, education, and debate. Genocide deniers should be marginalized, and even subject to other forms of sanction where they cause real harm, but they should not be subject to incarceration except where their actions amount to incitement to violence. In this regard, it is notable that Australia allows those harmed by public expression of racial hatred to apply to the Human Rights and Equal Opportunity Commission for conciliation and relief, and generally reserves criminal sanction for acts of racial vilification that intentionally cause criminal menace or harassment.24
The state’s duty to recognize genocide and similar mass crimes where they have been committed flows not only from the harm done to individual or group survivors through denial, but the harm done to humanity itself. Denial is a form of desecration of the dead, a violation of one of the most basic human norms. It brutalizes us, and facilitates repetition of atrocity. As a corollary to the duty to recognize and remember genocide and crimes against humanity, the state should not do so selectively, favoring some victims and ignoring or denying others. In this context, it is particularly reprehensible that some Turkish writers continue to be prosecuted for “insulting Turkishness” under article 301 of the criminal code when they probe into the mass killing of Armenians in 1915 or suggest that those actions might have been genocide.25
