[translations idioma=”ES” url=”http://rgnn.org/2015/04/13/serie-libertad-de-expresion-libertad-de-expresion-y-negacionismo-de-los-genocidios/”]
Freedom of Expression is a basic human right and the founding value of ROOSTERGNN. In this Special Series, ROOSTERGNN explores the state of Freedom of Expression around the world. Follow the complete series here.

GLOBAL. Maybe the reader will be surprised by the title of this article, but the debate it references has been going around for decades, especially in Europe and the US. Is it tolerable to assert in the name of freedom of expression that the Nazis did not murder any Jews, or that the Jews did not die in gas chambers or that they had partial blame for their demise, that 200,000 citizens have not been murdered in Syria, or that if it indeed happened it was for the advancement of radical Islam or that Gaddafi was a criminal but gave stability to the country and it was more convenient for “our Western” interests that the chaos now unfolding in Libya? From this long list, not all of them are absurd or untruthful; others are radically false and even injurious.

Truth is, we would find consensus on the aforementioned about Libya or even partially about Syria, but that doesn’t diminish the intensity of the crimes committed by Gaddafi or Bashir al-Assad. We can reject the first statements concerning Jews and the Nazis, but many proclaim Holocaust exaggerations in the name of freedom of expression, like when David Irving stated “more women died in Edward Kennedy’s backseat in Chappaquiddick that in an Auschwitz’s gas chamber” (1991) or that Hitler ignored the existence of extermination camps (Barcelona, 2007), and later on reducing the number of assassinated Jews from 6 million to 2 or 3 million, as if lowering the amount of the deceased made the act less abhorring.

The debate is crystal-clear, and it stands between two completely distant and opposing criteria.

First we have those who understand – including the Constitutional Court of Spain – that freedom of expression is one of the fundamental pillars of the democratic system. This freedom, either through scientific research or ideological essays, has two purposes: to contribute positive knowledge or to provide ideas or opinions of repugnant nature. Thus, freedom of expression advocates believe that citizens have the right to know opinions and expressions of totalitarian, racist or xenophobic nature, or any other type of thinking that is contrary to democracy and human rights: “the State should not hinder the expression of low morals, on the contrary, it should be publicly permitted” (Marc Carrillo). If the result were an uninformed population, it would not be the State’s responsibility to fix it by imposing criminal sanctions to defamers or twisted diffusers.

For our Constitutional Court, this position is relatively legitimate in Spain, provided that the use of freedom of expression doesn’t look for a different purpose: the Holocaust the Jews went through, along with the Armenian and the Rwandan, can be denied, as demented as this can be, provided that the goal isn’t to justify, protect, or even worse, foster hate or violence against these people or groups of people that suffered these events. Only in this instance is it possible to criminally punish a person exerting its right of freedom of expression. In brief, it is possible in Spain to exert freedom of expression under the protection of article 20 of the Constitution even if the expressions are opinions or subjective, selfish, twisted, completely wrong or baseless information, even about veridical, historical incidents. Therefore, this isn’t just about protecting freedom of expression or of investigation to theorize about Kennedy’s killer – an ongoing debate since 1963 – or if the British knew that Katyn’s killings had been done by their Russian allies and not by the Germans, but also to protect so those who deny that any black citizen was discriminated in apartheid South Africa or that the Soviet gulags or the Cultural Revolution in China were innocuous regarding human casualties. What’s the limit, then? For our Spanish courts, the borderline lies in that these affirmations do not lead to contempt nor generate hostility or violence, nor do they discriminate or commit a major crime. In a nutshell: in a Spanish university a researcher could dedicate his whole life to build and spread the theory that the Spanish Inquisition had a positive effect in Medieval Spain, or that Stalinism was positive, as a final settlement, for the Soviet Union.

On the contrary, those who believe freedom of expression has limits base their opinions on reflections about everything that is not allowed under its protection. And that these limits are not just to steer clear of freedom when the goals are of a wretched nature, but also when dealing with a presumably scientific or ideological debate in a free society. That it is not possible in a state governed by the rule of law to investigate, publish, or affirm ideas or conclusions that deny criminal, despicable, or miserable historical realities.

This debate has increased significantly in the last few years thanks to a very specific event. This event is so concrete that even the jurisprudence of our Constitutional Court, of the European courts, and, all the more, of the European Court of Human Rights, have mainly established it as a specific type of disdain denominated “negationism” of the Holocaust: the inexistence of Nazi crimes against Jews.

It is true this negationism is also applied to the massive killings of Rwanda (800,000 killed in 1984) and of Cambodia (more than 2 million between 1975 and 1979), amongst others, but almost always the debate is in relation to the exterminated Jews during World War II. Such is the case that the most recent sentence of our Constitutional Court dealt with this, when in Spain, to be clear, never occurred a Jews’ genocide and, thus, we do not need to “wash” our historic memory from the topic, at least in the immense levels the German and Austrian populations, along some others from political allies, should do so. Nonetheless, here in Spain, in our country, there have been and there are “negationists”.

The debate is not a minor one: it is a clear contraposition between freedom of expression (and of investigation, professorship, or information) against other rights and constitutional freedoms, such as honor, intimacy, a person’s dignity, and, even more, the national security of the democratic state.

On an Internet analysis, the reader could even find institutes or centers supposedly of investigation dedicated to Holocaust negationism. It is very hard to find places dedicated to other types of negationism, – although they do exist, including negationism of the relationship between HIV and AIDS, the evolution theory or climate change –, but what this reveals is the use of freedom of expression against Jewish people is something more than a fleeting “sickness.”

The major global example in this topic is the Institute for Historical Review, located in the freedom of expression’s paradise, the United States. On the other hand, in Europe, where these abhorring events happened, many countries – not including Spain, even though it tried and was declared unconstitutional within legal standards – have approved laws that sanction with prison penalties affirmations or studies to aid the negation of the reality of racial extermination, whichever it is.

What is the negationism of the Holocaust and why, so particularly, it is connected to freedom of expression? On October 10, 2013, the International Holocaust Remembrance Alliance (IHRA) adopted a new definition concerning the negationism of this historical event. This definition references the anti-Semitic base of this negation: the historical reality is denied along with the degree of the Jew extermination by the Nazis, known as “Holocaust” or “Shoah” – Hebrew word that means “catastrophe” –. The negation of Holocaust refers specifically to any affirmation effort that the Holocaust never happened or the justification or minimization of it.

The negation of the Holocaust can include the negation or call into question in a public manner the use of main destruction mechanisms (for example, gas chambers, murder, famine and torture) or that there was no intention of exterminating the Jews. The negation of the Holocaust is in many ways an expression of anti-Semitism, states the 2013 declaration. To try to deny the genocide against the Jewish people is an effort towards exonerating Nazism and anti-Semitism of the blame for the genocide against Jews. Negation of the Holocaust also includes blaming Jews of exaggerating or of creating genocide to receive political or financial benefits, as if all this was the result of a conspiracy planned by Jews or a permanent alibi for Israel’s politics. The ultimate goal of negationism would be the rehabilitation of an explicit anti-Semitism and the promotion of political ideologies that would allow conditions for a new genocide.

Why is this a complicated debate? Basically because freedom of expression is a freedom picked up in a “positive” sense and generally democracies are unarmed or have difficulties to aggressively react against the usage of its own democracy. Freedom of expression is one of the conquests of Western democracy, the possibility that any citizen freely expresses their ideas, or exerts their right to investigate (as a journalist, professor, researcher) or states ideological opinions (political, philosophical) without fear of sanctions or repression. For a country like Spain, subjected to a military dictatorship until 1975 and with freedom of expression, amongst other things, restricted to the utmost degree, it is a plus of psychological demonization to restrict it for the sake of protecting the rights of others. Thereby, we are offspring of our most recent history but also guilty of some negligence.

Is it freedom of expression to deny the Holocaust? To our understanding, definitely. Still, this is not an easy conclusion and many Spanish jurists oppose the legal penalization of negationism. Nevertheless, we should move forward following an essential premise: no right or freedom is absolute, maybe with the exception of the “right to life.” Every right has its limits, usually noticeable when colliding with rights and freedom of other citizens.

Negationism – as we have already established, practically a majority relating to the Jewish Holocaust – doesn’t mean an exercise of freedom of expression; it is not just another opinion, neither another historical investigation. It is true that it is perfectly legitimate to study if the Vatican, to a greater or lesser degree, helped save Jews or if it active or passively collaborated with the Nazi regime by inhibiting itself from the matter – something that is highly debatable and still unclear today – but it is not legitimate to “deny” when the final outcome becomes disregard or attack to genocide, or any other crime against humanity, victims. The Kurdish-Iraqi citizen should be protected before the affirmation that Saddam Hussein never killed with gas nor exterminated tens of thousands of Kurds, for it is most likely that a friend, family member or fellow countryman of this citizen suffered from Bagdad’s satrap’s genocidal wraths, and because negation imposes suffering, rage, embarrassment, and it encourages or justifies those who committed it. That personal dignity is also a fundamental right, in Spain and in Europe.

Furthermore: negationism is almost always centered on Jews’ assassination, when Nazism also massively murdered the gypsies, homosexuals, and people with disabilities. This leads us to wondering if freedom of expression, the one that protects negationism, isn’t going too far: is it defending anti-Semitism?

In countries like France and Germany, negationism is considered one of the more modern versions of anti-Semitism. However, a certain degree of tolerance in many countries has led to the debate of Armenian negationism or even the justification or diminishing the historical fact of African slavery. The reader shouldn’t be unaware of affirmation readings concerning the relative kindness of Stalin’s regime in the construction of modern Russia or that Franco’s dictatorship set the foundation for a democratic government after his death. That is, diminishing what was transcendental allows the trivialization of that which doesn’t seem, supposedly, transcendent.

Facing this, we should consider if a researcher, historian or a person with common sense, which has carried out rigorous approaches in Europe about controversial facts, has been criminally sanctioned. The response is radically negative. There’s no European Union citizen condemned for questioning “official” versions of History or even defending political, historical, sociological theories, or of any other type. Nevertheless, yes, many criminal sentences have fallen on “counterfeiters” or defenders of political extremism positions. 

Which means: the researcher or historian, under the protection of freedom of expression, succeeds with his work and his mission. Our European laws oversee and protect ideological, political, historical, or freethinking dissidence. However, in a democratic society laws protect independence and freedom, but they shouldn’t, nor can they, tolerate overstepping boundaries concerning the inadmissible in terms of dignity. The reason is that negation of determined facts means the negation of our own human condition and the destruction of our coexistence values in a democracy.

Didier Daenickx stated more than a decade ago that the genocide of Jews and Armenians, or slavery, do not solely affect black people, or whoever the target population was: “the law allows me to say that anything that is not human is foreign to me.”

Voltaire, concerning Jews, stated: “in them you will only find a barbarian and ignorant nation with the most indignant greed towards the most detestable superstition and the most horrible hatred towards all the peoples that tolerate and enrich them (…) however there’s no need to burn them.” In an anonymous letter (a significant fact) published afterwards he was replied thus: “it is not enough to not burn people down: we can burn them with the quill and this fire is even crueler because its effect is transmitted to future generations.”

These words were written more than 250 years ago in Europe, and the tragedy of Auschwitz, Birkenau or Treblinka happened not more than 70 years ago. Therefore, our European society and democracies should remain permanently alert in front of constitutional freedom use, when these can affect, damage or propagate hatred, xenophobia or racism.

We should point out that this debate has not been specifically intense in Spain, possibly because our country did not collaborate with the genocide against the Jews, and because the Jewish fellow citizens of our country that could’ve been exterminated during World War II had been aberrantly banished from Spain since 1400, something we barely reflect upon in our country. Therefore, there’s no historical or emotional personal memory with the Holocaust, more than the rejection of any respectable person of this criminal event or some of our fellow citizens that suffered through it, or endured it through derivation, like the republican Spaniards in Nazi concentration camps.

Nevertheless, concerning the ambivalences of our Constitutional Court, giving so much importance to freedom of expression and not assuming the criteria of its European counterparts, this judicial authority has not been hesitant when illegalizing political parties that defended terrorism or even refused to condemn terrorism acts – which is not the same as the aforementioned, but very similar. And this decision – which was very criticized but has been beneficial – was readily accepted by the European Court of Human Rights by stating that democracy has the right to defend itself from those political parties that pretend to use it in order to destroy it. Moreover, the illegalization came through thanks to an “imperious social need” and that this can be necessary “in a democratic society,” especially in order to maintain “the safety, the defense of order and the protection and the rights of others.” This was ruled so without hesitation.

It is clear in the collective conscience of Spain’s citizens that the almost thousands of killings from ETA and the thousands of victims of the terrorist phenomenon in Spain are heavy in our hearts and the European Court has recognized the right to block this freedom, which also includes freedom of expression concerning the conferral of entitlement or tolerance towards terrorism.

Is Spain on the way to amend its position? We understand that at the present it is. We seek to modify the penal code, pending this year (2014) on the Spanish Parliament, to consider negationism as a form of incitation to hate and hostility against minorities, in such a way penalizing with up to four years of prison those who “deny, gravely trivialize, or extol genocide crimes (…) or praise their authors, when committed against a group or a part of it, or against a determined person because of its membership to it, for racial, anti-Semitist or other purposes related to ideologies, religion or beliefs, family situations or being part of ethnic group, race or nation, for their national origin, their sex, sexual orientation or identity, a disease or disability, when in this manner an environment of violence, hostility, hate or discrimination against the aforementioned is promoted or favored.”

Our conclusion is clear: freedom of expression cannot protect the erroneous, twisted or unfounded circulation of historical incidents that affect the citizens that went through them or were witnesses, direct or indirect, victims as well, of what happened. Because this negationism or distortion is an underestimation of dignity – a constitutional right – and because, without a doubt, it supposes a sentiment of hostility, and even violence, against its victims or their relatives, descendants or fellow citizens, but also for the citizenship in general, who should be protected by the public power and our national security be guaranteed, which is nothing else but that of democracy and the liberties and common heritage of Europeans. Besides, in a democracy everything is not fair, even what looks for refuge, in a sibylline manner, under the constitutional right of freedom of expression, because a democracy has the right and obligation to defend itself from those that want to destroy it.

— Translation: Nicole Arocho.