The Fight Against Racism and Genocide Denial

This is the outcome of a difficult negotiation initiated by the European Commission in 2001, whose aim was to harmonize laws on hate crimes across the EU. Like most EU laws, the text will be implemented through legislation adopted by the parliaments of the Member States.

According to the text, Member States can choose not to make genocide denial illegal unless the genocide in question has been recognized by an international court. This is tailored to allow Member States to exclude the Armenian genocide, which was never sanctioned by an international court, from the scope of the legislation. This was of course introduced as a sop to the Turkish government, which denies the Armenian genocide as a matter of policy.

However, while the new legislation allowed Member States to exclude the Armenian genocide from the ban on genocide denial, it does not require them to do so. The decision will be up to the parliament and government of each Member State. The exclusion clause, furthermore, is subject to review in a few years’ time and could be abolished if it is abused.

This is the first time EU law makes genocide denial- and indeed hate speech in general – subject to criminal law. Although some Member States already have similar legislation, they are in a minority, and have never applied it to the denial of the Armenian genocide.

In October 2006, a member of the European Commission had even criticized the French Parliament for voting a draft law to ban denial of the Armenian genocide. It is ironic, then, that barely six months later the EU itself should have adopted legislation which is in fact supportive of the French law.

But the decision to adopt the framework decision had not been an easy one to make. EU Member States remain divided between the imperative of preserving freedom of expression and the struggle against racism. They do not all share the opinion of philosopher Karl Popper, as quoted by German Justice Minister Brigitte Zypries: “ in the name of tolerance, we must claim the right to be intolerant with the intolerant.”.

Why European legislation against racism? In the first place, article 29 of the EU Treaty, the European institutions’ Bible, mandates the EU to act against racism. Furthermore, disparities between the Member States’ legislation make it increasingly difficult to prosecute racist crime; the Internet has indeed made that problem worse. Finally, the EU has the legitimacy to act: 84% of Europeans support increased EU action against racism.

The German government regularly invoke their country’s “specific historic responsibility” to press for the adoption of European legislation on racism.  For them, consistency self-evidently demands that genocide denial be made illegal at the same time as incitement to racial hatred.

How the EU’s Framework  Decision on Racism and Xenophobia is translated into each Member State’s law is now up to each government and parliament. But a legal principle has been established: genocide denial is now a matter for the courts.