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How genocide denial legislation confuses law and history

Denial of genocide is not always tantamount to a refutation of the fact that a morally untenable event has taken place. Before we can properly discuss the criminalization of genocide denial, it is important to reach a clear understanding of what constitutes a genocide
Elfadil Ibrahim
12 January 2012

The 20th century was a century of immense progress largely attributed to the brutality that had preceded it. The lesson of this century was to curb the power of propaganda; Europe witnessed firsthand the kind of destruction it tends to create. Many had acquiesced to Hitler’s "Final Solution", not only in Nazi Germany, but throughout the continent. With this in mind, France’s recent legislative initiative to criminalise denial of the Armenian genocide may be misguided, but not without its merits.

The Holocaust was not unprecedented, as war crimes carried out in the Ottoman Empire against the Armenian community indicate, but it was exceptional for its inhumanity. Myth and conspiracy theories played a large role in the technological dissemination of literature espousing ideas that would set the scene for what was to come. Books such as "The Protocols of the Elders of Zion" were widely read and circulated by some of the most prominent members of society. Henry Ford, for example, not only helped print tens of thousands of copies but also wrote his own article titled "The International Jew: The World's Fundamental Problem." Through this process, myth became "real" to many and finding a "Final Solution" met with little resistance as anti-Semitism was allowed to become socially acceptable.

Laws criminalising denial, however, only appeared in the 1980s as the revisionist stage had been reached. Initially, it was accepted that the Holocaust was exceptional in its cruelty; the use of concentration camps and assembly-line killing were without precedent. Investigation into the wider history, however, revealed the use of similar techniques in Armenia prior to the Holocaust, as did later events in Rwanda, Screbrenica, and Cambodia.

Revisionism took an awkward turn when it came to questioning the use of gas chambers, that is, speculating as to the actual causes of death and reassessing the accuracy of estimated casualties. Even in some of the most extreme cases of revisionism, there is still no implication that the Nazi authorities lacked genocidal intent – the intent to destroy in whole or in part any racial, linguistic, national or ethnic category as per the Rome Convention. The fact that certain groups were targeted, isolated, and placed in conditions so that death was a logical result still constitutes a genocide, and is not a denial of the events per se.

Genocide denial, as a legislative concept, is ignorant of the possibility that it can be done without mal intent, and it supposes that denial of historical details or, in the most extreme cases, a denial of genocide, automatically undermines the gravity of war crimes. In another example, Bernard Lewis sparked controversy when he denied the Armenian Genocide. This did not amount to a delusional declaration that nothing happened, but rather that the events did not constitute a "genocide" as defined in the Rome Convention. Speculation as to whether events constitute a genocide does not equate to a flat-out denial of events or detract from the gravity of a serious violation that might instead be classified as a crime against humanity.

Though history oftentimes does not reveal static and timeless truths, scepticism is necessary for proper academic study. Without it, our view of history becomes limited and distorted. Take, for example, the "victors' justice" at Nuremberg where all those tried were Nazis. The Allies were not reprimanded for the bombing of Dresden, which constituted a crime against humanity in the opinion of a vast majority of international criminal lawyers, and no charges were brought against bureaucrats from other European nations who complied with the "Final Solution." Genocide denial legislation can potentially lead to simplistic "good guys versus bad guys" distinctions and generate propaganda of its own by negating facts and creating an atmosphere where political correctness stifles free speech.

The late Raphael Lemkin coined the term "genocide" in a time of awakening tied to the realisation that something had gone horribly wrong in Europe and the Ottoman Empire. These events should inform the basis of civic education on the matter, and its denial in bad faith – with disregard to the victims, families, and general public – should be reprimanded as a matter of law. The line, however, should stop there because the rest is history.

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