Historians under Criminal Law: EU Legislation Casts a Shadow on Historical Research
Luigi Cajani, October 2009
The “framework decisions” of the Council of the European Union rarely get the attention of historians. Intended to align the laws of the various EU member states, the framework decisions deal with matters that do not usually impinge upon the historical profession.
However, a “Framework decision on combating racism and xenophobia,” approved on November 28, 2008, by the Council of the European Union, aroused simmering anxieties among historians because in its implications it cast a long and dark shadow on historians and history educators.1
Indeed, this EU framework decision not only seeks to punish truly racist and xenophobic behavior, such as “publicly inciting to violence or hatred directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin,”2 but also, alarmingly, the expression of opinions that are directly connected with historical research, such as:
publicly condoning, denying or grossly trivializing crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;
publicly condoning, denying or grossly trivializing the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group.3
In this framework decision four major problems stand out as possible dangerous outcomes for historians.
First, the reference to the International Military Tribunal (more commonly known as the Nuremberg Tribunal), implies, inter alia, the Holocaust; in other words, this framework decision thus requires all member states of the European Union to prosecute those who “deny, condone, or grossly trivialise” the historical reality of the Holocaust. Not all European states agreed up to now on such prosecution. Some of them, like France, Germany, Austria, and Belgium, do already proscribe and prosecute such denials, but others, like Italy, the U.K., Norway, or Sweden, don’t. Also the debate among jurists is still open. However, this in itself is a problem that concerns citizens in general, and not historians in particular, because the denial of the Holocaust has nothing to do with historical research, much like creationism, for example, which has nothing to do with palaeontology. What is really problematic for historians is the fact that this framework decision enlarges the prosecution of the denial of the Holocaust as a fact to the denial of the definition of war crimes or crimes against humanity, notably genocides, to an unspecified and, therefore, potentially unlimited set of historical events—like the fate of Armenians in the Ottoman Empire during the World War I or the Ukrainian famine in 1932–33— whose reality is not at all denied by any historian, but whose interpretation is controversial.
A second problem arises when it comes to the question of the authorities that would be entitled to decide which historical events come under the aegis of the framework decision. Besides international tribunals, including the International Criminal Court, which anyway is competent only for crimes perpetrated after July 1, 2002, the date on which the court came into force,4 the framework decision also refers to national tribunals, and this can consequently lead to differences and conflicts from member state to member state which would create a chaotic juridical landscape. Moreover, the framework decision doesn’t deny nonjudicial authorities, such as national parliaments (which in some cases, as in France, have indeed already legislated on such crimes) and the European Commission itself, the power or authority to define these crimes.
Another problem arises from the definition of the criminal behaviors. Whilst “denying” is quite clear, “condoning” and above all “grossly trivializing” are rather blurred and indistinct terms, and can therefore lead to great differences in judgments. This concern is confirmed by the analysis of similar juridical texts, like the Belgian law on Holocaust denial. According to some jurists, “trivialization” could be said to have occurred when an historical event defined as a crime against humanity is explained or its gravity is diminished according to the context, for instance if it is considered as the reaction of the perpetrator to a danger or to a previous act of violence.5 By such interpretations a judge or another authority obviously intrudes into the historian’s domain.
A fourth problem stems from the “reserve clauses” that are appended to the framework decision. This framework decision has to be implemented by all member States of the European Union in two years; by that time, the final juridical landscape can be expected to be quite complex and differentiated. All the tensions and divergences that accompanied the long evolution of the legislation are expressed by a set of reserve clauses appended to the final text. These reserve clauses go in different directions. France declared, for instance, that it will recognize the exclusive competence of international courts in this regard, thus excluding not only national courts, but also all other authorities. This French turnaround went against its previous politics of lois mémorielles, and it can be understood in terms of the recent official change of mind expressed by the parliamentary Rapport Accoyer, which declared that no more laws concerning historical facts should be introduced, especially when they included a criminal prosecution, and also invited the French government to limit the action of the framework decision.6
Germany stressed the necessity of safeguarding the different legal systems of the member States, pointing out that in some states the conduct referred to in the framework decision can be punished only when it affected an individual or a group of individuals, whilst in other members states such conduct will become punishable only when it harms collective interests. Such differences lead to different juridical practices, and, the German government asserted, these differences must be preserved.
An example of these differences is given by the Hungarian reserve clause. Hungary declared that, following the decision of its constitutional court, freedom of expression can be restricted by means of criminal law only “if the conduct endangers the rights of identified persons in a direct and obvious way and the conduct is likely to disturb public peace at the same time.”7
Two reserve clauses that came from members states in Eastern Europe pose a different kind of problem because they seek to expand the scope of the framework decision.
Latvia insisted that the framework decision must also encompass the crimes committed by communist regimes, and expressed a strong plea for putting both the Nazi and the communist crimes on the same level. Latvia’s stance has to be understood in the context of the long-lasting (and still intense) tensions stemming from radically different perceptions about events during and after World War II between Russia on one side and many nations that had once been behind the “Iron curtain” on the other side.
Poland also joined the Latvian position, but in addition stressed a particular point concerning the German occupation during World War II. For many years Polish diplomacy has been combating the use made from time to time of the unhappy expression “Polish concentration camps” to refer to Auschwitz, Treblinka and so on. This expression is certainly wrong and misleading, because it conflates the geographical location of the Nazi death camps with their historical perpetrators. But it must be underlined that with this reserve clause the Polish government goes far beyond a diplomatic intervention aiming to correct a mistake, because, with a legislative quantum leap, as it were, it seeks to make use of the judicial power to punish a mistake, and invents for this purpose a brand new crime, that of “public gross distortion.”8
The framework decision was, no doubt, proposed with the noblest of intentions—of fighting against racism and xenophobia. Therefore, the welcome it received in some quarters can be understood (see, for example, the response of the European Union’s Agency on Fundamental Rights, at www.media4diversity.eu/en/content/fra-welcomes-new-eu-framework-decision-combating-racism-and-xenophobia). But the conceptual shift from combating racism and xenophobia through the persecution of the Holocaust denial has eventually lead to creating a juridical tool which goes far beyond its original purpose and only intrudes the field of historical research by endangering freedom of research and teaching.
Already in the last phase of its approval process this framework decision has in fact provoked a great deal of negative response among historians in Europe and outside. Timothy Garton Ash wrote in the British newspaper, The Guardian, on January 18, 2007, that this initiative, however well-intentioned, “is very unwise… [and] it would further curtail free expression at a time when that is under threat from many quarters.” The German historian Eberhard Jäckel, in an interview on February 1, 2007, with Deutschlandradio also asserted that the denial of the Holocaust was “a stupid thing to do” which did not need to be punished unless it incited hatred; and could be combated more effectively by information.9 At the same time Italian historians successfully reacted with a petition against the justice minister’s idea of introducing a law to criminalize Holocaust denial before the approval of the framework decision. In France a newly formed group, Liberté pour l’histoire, issued an appeal that declared, inter alia: “In a free state, no political authority has the right to define historical truth and to restrain the freedom of the historian with the threat of penal sanctions.” The American Historical Association issued in September 2007 one of the strongest and clearest statements on the subject (the text of the statement is available online at www.historians.org/Perspectives/issues/2007/0711/0711int3.cfm). The AHA delegate also placed the statement before the General Assembly of the International Committee of Historical Sciences (ICHS) when it met in Beijing in preparation for its quinquennial congress scheduled to be held in Amsterdam in August 2010. The ICHS also expressed its concern and decided to organize a special session of the conference, under the title “Ethics, Historical Research and Law,” that I’ve been invited to organize and in which Pierre Nora, Paolo Pezzino, Jörn Rüsen and Antonis Liakos will also participate. The panel will start with an analysis of the framework decision and then widen the horizon to the often difficult relations between historians and political powers in the world context, focusing not only on juridical but also on ethical issues, in order to propose a definition on the new role and responsibilities of historians in dealing with social and political sensitive issues beyond political bias and control.
—Luigi Cajani is professor of modern history at the Università La Sapienza, Rome.
1. Council framework decision 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law, Official Journal of the European Union, 6.12.2008, pages L 328/55–L 328/58.
6. Assemblée Nationale, Rapport d’information fait en application de l’article 145 du règlement au nom de la mission d’information sur les questions mémorielles, Président-Rapporteur M. Bertrand Accoyer. Pages 181, 184.
7. Council of the European Union, Brussels, November 26, 2008, 16351/1/08 REV 1 DROIPEN 94, Annex, Statements to be entered in the minutes of the Council at the time of adoption of the Framework Decision, pages 4–5.