Academic journal article The George Washington International Law Review

The Uncertain Future of Genocide Denial Laws in the European Union

Academic journal article The George Washington International Law Review

The Uncertain Future of Genocide Denial Laws in the European Union

Article excerpt

I. INTRODUCTION

In 2011, Gyorgy Nagy was arrested at a rally in Hungary for holding a banner that read, "The Shoah [Holocaust] did not happen." In early 2013, Nagy became the first person to be convicted under the 2010 Hungarian Holocaust denial law, which makes " 'denying, questioning, or making light of the Holocaust' illegal."1 Nagy was sentenced to eighteen months in prison, which was suspended for three years, and probation.2 In addition, Nagy must visit either Budapest's Holocaust memorial museum, Auschwitz, or Yad Vashem, which is Israel's memorial to Jewish victims of the Holocaust in Jerusalem, and record his observations.3

Genocide was first recognized as a crime by the Convention on the Prevention and Punishment of the Crime of Genocide, which was ratified on December 9, 1948.4 Article 2 of the convention defines genocide as follows:

[A]ny of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.5

Gregory Stanton, President of Genocide Watch, has divided genocide into eight distinct stages.6 These eight stages include: classification, symbolization, dehumanization, organization, polarization, preparation, extermination, and denial,7 the last of which will be the focus of this Note. Stanton argues that denial extends the crime of genocide to future generations of survivors because it is a continuation of the intent to destroy the group.8 Genocide denial can take a number of different forms, including, but not limited to, denying that there were any mass killing at all or questioning and minimizing the number of victims.9 In addition, genocide deniers employ a number of different tactics, including: claiming that the deaths were caused by famine, migration, or disease, blaming out-of-control militias for the killings, casting the victims as disloyal insurgents during wartime, claiming that the dead were victims of a civil war, and attempting to demonstrate that the deniers' group also suffered huge losses during the "conflict," which attempts to cloak and legitimize the genocide as selfdefense.10

Genocide denial has been recognized as a serious problem in a number of Western countries;11 however, there is a wide degree of variation in how these countries approach genocide denial from a legal standpoint.12 For example, in the United States, any attempt to restrict the freedom of speech is generally met with strong opposition, and the hope is that the free exchange of ideas will expose genocide deniers as liars and racists.13 In other words, harmful speech is combated, and hopefully defeated, with more speech.14 While this approach is appealing to the United States, other countries employ different methodologies, including the use of criminal sanctions.15 The seriousness of genocide as a crime, coupled with the fact that genocide denial extends the genocide to surviving generations,16 has prompted a number of E.U. member states to take affirmative and, in some cases, drastic steps to eradicate genocide denial.17 Austria,18 Belgium,19 the Czech Republic,20 France,21 Germany,22 Hungary,23 Luxembourg,24 Poland,25 Romania,26 Slovakia,27 Slovenia,28 and Switzerland29 have all criminalized genocide denial to a certain extent, and the punishments for violating a country's respective genocide denial laws range from a modest fine to a lengthy prison sentence.30 In addition, on a supranational level, the European Parliament has passed legislation to address the issue. The most recent piece of legislation regarding genocide denial is the 2008 Framework Decision on combating racism and xenophobia (2008 Framework Decision), which requires all member states to criminalize genocide denial in certain contexts. …

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