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Report from Seminar 2 B on Legislation: Possibilities limits and effects
Presentation by Mr. Jeremy Jones
Presentation by Mr. Charles Korman

Report from Seminar 2 B on Legislation: Possibilities limits and effects

Combating Holocaust denial through law

Prof. Irwin Cotler (moderator) (IC)
Mr. Charles Korman (CK)
Prof. Deborah Lipstadt (DL)
Mr. Jeremy Jones (JJ)
Dr. Steven Shapiro (SS)
Mr. Heinz Fischer, Speaker of Parliament, Austria, opened the seminar by giving an account of the law concerning nazi ideology and hate crimes in Austria.
IC then listed a number of questions that could be of significance for the coming seminar.

1. What are the nature, scope and impact of Holocaust denial?
2. Should Holocaust denial be illegal? In that case how can we legislate against it? What are the legal remedies?
3. What experience has been gained of that expedient?
4. What risks of using a legislative tool have been posed?
5. What remedies, of a non-legal nature, do we have?
6. Does the Internet change these remedies?

DL told the story of how she won over David Irving. The Irving case was very different from any of the previous Holocaust cases. This was the first time the academic was the accused and the denier the accuser. DL and her defense team managed to turn the case around by proving that Irving was a denier, a Hitler partisan and that he knew the truth but lied. DL and her team were very aware that it was important the Holocaust didn’t go on trial. If it had turned out to be a “did the Holocaust happen”-trial, a victory would have been a Pyrrhic victory. Their approach was to go through all of Irving’s sources.

This way they could show that they almost invariably turned out to be false. This was not by chance. If it had been the sources would have pointed in different directions. The conclusion was that Irving was lying and consciously distorting the facts. The other part of their strategy was to prove that Irving was a fascist, racist and anti-Semite and that all this was connected with his writing.

CK posed the question if we should take any legislative action on Holocaust deniers and if so, what kind of action. His answer was, yes we should. First, denial can be seen as a propaganda crime. It can also be seen as a crime against humanity. In France it is criminal to spread racist ideas, express race hatred and defamation. CK made clear that he regetted the restrictions on the freedom of speech. But he said we must remember that denial is never an end in itself. A denial of the Holocaust always has another purpose.

SS, feeling that he had proclaimed his views last session, kept it short. Legislation is never the solution. Legal experts can never decide on history, that is up to the historians. And he ended by quoting an American lawyer as saying: “The answer to speech is more speech, not to enforce silence”.

JJ mentioned Scully as an example of how they have dealt with the problem in Australia. She was finally convicted under the Racial hatred act. This was possible by regarding the victims. There are always victims in cases of Holocaust denial. The same went for Fredrick Toben. In that case they also succeeded in proving that the Internet was a public act. JJ, like CK, wanted to point out that legislation was the last resort, or as he was once quoted, “a way to do with the jerks”. The victims of the Holocaust have a right to be able to live in peace. And we have an obligation to give them that peace.

Question from the auditorium: What do we do in other cases of Holocaust? JJ answered that this was no problem as long as it came under the Racial Hatred Act.
A discussion followed on all the risks of putting the deniers on trial. They can turn out to be martyrs, the Holocaust itself can turn out to be a subject of discussion, etc.
JJ pointed out that Australia was well aware of the risks, possible consequences and dangers. The legislation existed to establish the fact that there were victims.
Question from the auditorium: As soon as Irving got convicted the newspapers were writing on the case. How do we handle the press and the journalists?

IC recalled a case in Canada when a Swedish revisionist had posed as an expert witness in the Zundel trial. The day after the testimony one paper ran the headline “Women and children dancing in the camps, expert says” (or words to that effect).
A discussion on the problems followed, but no suggestions were made concerning possible strategies.

Finally DL summed up by saying that it was not possible to win over the deniers, the important thing was not to lose.

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Opening Session

Plenary Sessions: Messages and Presentations

Workshops, Panels and Seminars

Closing Plenary Session and Declaration

Other Activities

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