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Careful Doing History in Europe -- You Might Go to Prison:

From a newly adopted EU proposal:

1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: ...

(c) publicly condoning, denying or grossly trivialising 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;

(d) publicly condoning, denying or grossly trivialising 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....

1b. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.

So if you're writing about whites' relations with American Indians', or the Crusades, or the reconquest of Spain from the Moors, or for that matter about any aspect of history that involves ethnic-based slaughter — think how much of that there has been in history — you might be violating the law. True, this would be covered only if your actions are "carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group." Is that really great comfort, though? If a tribunal concludes that your actions were likely to incite hatred against the defeated group, or even a member of the group, you're a criminal.

The enactment does give states the latitude to limit this:

1a. For the purpose of paragraph 1 Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting....

2. Any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement that it will make denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) punishable only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court or by a final decision of an international court only.

Thank you very much; states may choose not to suppress discussion of history quite as much as the EU suggests. For instance, until a court "establishe[s]" the Official View Of The Crusades, you're free to write history about them; only after the court establishes the True Historical Account would any attempt to question the new legally announced historical orthodoxy become a crime.

Oh, and here are the penalties:

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by effective, proportionate and dissuasive criminal penalties....

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.

But of course there's no danger of restricting free speech: "This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty establishing the European Union.... This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to [...] fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from [...] constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability." Well, OK, then.

Thanks to Victor Steinbok for the pointer.

Related Posts (on one page):

  1. Historians Getting Into Legal Trouble:
  2. Careful Doing History in Europe -- You Might Go to Prison:
45 Comments
Historians Getting Into Legal Trouble:

In response to my post about how the European Union is requiring states to criminalize (among other things) "condoning, denying or grossly trivialising crimes of genocide ... when [the speech] is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group," a commenter writes:

I'm not a fan of such laws because of free speech concerns and I think they do more to encourage hate speech (making it forbidden attracts the very people you want to discourage) however to be fair you won't get jailed or arrested for doing serious scholarship.

Well, here's a story I wrote about in 2002:

Several years ago, prominent historian Bernard Lewis was sued in France for his comments (made in a Le Monde interview) on the Turkish killing of Armenians during World War I; he stressed that the killing happened, but argued that -- unlike with the Holocaust during World War II -- it was not part of a deliberate campaign of extermination by the Turks. Various plaintiffs, including the French Forum of Armenian Associations and the International League Against Racism and Antisemitism sued, claiming that his speech violated French prohibitions on the historical denial of genocide; and they won.

The invaluable research librarians at UCLA Law School have gotten me an English translation of a French court's decision, and it is as troubling as press accounts described it to be. (Note that I'm not yet sure of the source of the translation, but I found it on a site that appears to be harshly critical of Bernard Lewis, so I doubt that the translation is incorrectly Lewis-friendly.)

Though the court didn't find that Lewis made any false statements, it concluded that Lewis didn't give a balanced presentation (and this in a necessarily brief newspaper interview, not an academic work) -- under this standard, even the most responsible historians could be vulnerable, especially if they are tried before courts that are hostile to their viewpoints. And though Lewis lost only 14,000 Francs, I suspect that the potential damages for future cases would be considerably greater. Here's what seems to me to be the court's key language, though you should just read the entire decision (it's not long and not very legalese) yourselves:

Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter.

(Note again that the Lewis statement about the lack of serious proof of the genocide referred to the supposed "lack of serious proof ... of a decision and plan of the Ottoman government for extermination of the Armenian nation"; Lewis acknowledged "that the Armenians' suffering [was] a terrible human tragedy," and that many Armenians died as a result of the deportation.)

Say that a European country enacts the core EU proposal (especially without the modifications that the proposal would tolerate though not encourage). Say that a historian -- especially one who lacks Bernard Lewis's prominence -- likewise says that the mass killing of Armenians wasn't "part of a deliberate campaign of extermination by the Turks," which I'm sure some will say "grossly trivialis[es] crimes of genocide." And say that he says this in a way that condemns some Armenians who say the contrary (perhaps claiming that they're deliberately distorting the facts in support of their view), so that it is "likely ... to incite ... hatred against ... a member of such a group [i.e., ethnic Armenians]."

Would we say "to be fair [this historian] won't get jailed or arrested for doing serious scholarship"? (Recall that the EU proposal expressly calls for "effective, proportionate, and dissuasive criminal penalties," specifically with a statutory "maximum of at least 1 to 3 years of imprisonment.") Or is it that sharing Lewis's views, coupled with condemning some who you think are distorting the facts, is per se not "serious scholarship"?

Related Posts (on one page):

  1. Historians Getting Into Legal Trouble:
  2. Careful Doing History in Europe -- You Might Go to Prison:
37 Comments