Memory and Punishment

Historical Denialism, Free Speech and the Limits of Criminal Law

Author: Dr. Emanuela Fronza

Publisher: T.M.C. Asser Press

Book Series : International Criminal Justice Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

This book examines the criminalisation of denials of genocide and of other massatrocities in Europe and discusses the implications of protecting institutional historicalmemory through criminal law.
The analysis highlights the tensions with free speech, investigating the relationshipbetween criminal law and historical memory. The book paves the way for a broaderdiscussion about fake news, ‘post-truth’ scenarios, and free expression in a digitalworld. The author underscores the need to protect well-founded factual records fromthe dangers of misinformation. Historical denialism and the related jurisprudencerepresent a key step in exploring this complex field.
The book combines an interdisciplinary approach with criminal law methodology.It is primarily aimed at academics, practitioners and others who wish to deepentheir understanding of historical denialism, remembrance laws, ‘speech crimes’ andfreedom of expression.
Emanuela Fronza is Senior Research Fellow in Criminal Law and Lecturer in Internationaland European Criminal Law at the School of Law, University of Bologna.She is a Principal Investigator within the EU research consortium Memory Lawsin European and Comparative Perspectives funded by HERA (Humanities in theEuropean Research Area).

Frontmatter

Historical Denialism as a Criminal Offence: Origins and Development

Frontmatter

Chapter 1. The Birth of the Crime of Historical Denialism

Abstract

This first chapter defines historical denialism by characterising it as a degeneration of the related notion of revisionism. Having introduced its evolution as a criminal offence, historical denialism is distinguished from remembrance laws. Its progressive criminalisation is further analysed from a European comparative angle. On the one hand, this process is characterised by the expansion of the object of the criminal prohibition, which was originally limited only to the negation of the Holocaust but now includes other international crimes. On the other hand, the criminalisation of historical denialism is illustrative of the blossoming of speech crimes. From this viewpoint, the protection of historical memory, guaranteed by the offence of historical denialism, aligns with a general trend that expands limitations of free speech in the name of the protection of other fundamental values of democratic societies.

Emanuela Fronza

Chapter 2. The Crime of Historical Denialism and International Law

Abstract

This chapter focuses on the evolution of historical denialism as a criminal offence and, more specifically, on the migration of the offence from the domestic to the international level. This bottom-up movement culminated with the adoption of the EU Framework Decision, which established a duty to criminalise denialist statements upon member states. The Framework Decision contributes to shaping the criminal offence by, on the one hand, prescribing that it applies not only to Holocaust denial but also to the negation of other international crimes and, on the other hand, by introducing limitations in order to safeguard free speech. This panorama is further enriched by the provisions of the ECHR system and the case law of its Court.

Emanuela Fronza

Denialism in Practice

Frontmatter

Chapter 3. Criminal Law and Memory

Abstract

This chapter focuses on the conflicts between the criminal offence of historical denialism and history. It dissects the three main problematic consequences of criminalisation: the risk of tampering with historical reconstructions; the risk of establishing one historical truth only and the risk of introducing a hierarchy among historical memories. First, the analysis focuses on a few landmark cases adjudicated by French courts. The French legal experience is paradigmatic of the problematics emerging from the criminalisation of historical denialism. Second, two judgments of the ECtHR are examined. The Garaudy case epitomises the consequences of the ‘original’ form of historical denialism. The Perinçek case demonstrates the risks involved in adopting a ‘broader’ paradigm of historical denialism.

Emanuela Fronza

Chapter 4. Criminal Law and Free Speech

Abstract

This chapter focuses on the tensions between the criminal offence of historical denialism and the fundamental, yet not absolute, right to freedom of expression. A clear example of this can be found in the Holocaust denial cases involving two relevant decisions by both the German and Spanish Constitutional Courts. Setting the boundary between lawful and unlawful thoughts entails the risk of violating the cornerstone principles of criminal law, namely the legality principle, the harm principle, and the last resort principle

Emanuela Fronza

Chapter 5. Conclusion

Abstract

The conclusive chapter presents the findings of the comparative study undertaken in this book. The study of the criminal offence of historical denialism is paradigmatic of some trends of the modern criminal law. The recourse to criminal law and the trial to protect and forge collective historical memory demonstrates that human rights are now at the centre of a new ethical pact. This has supplanted the original pact against the Holocaust, the foundational event of the European identity. Yet this process has shown that, paradoxically, there is no common European memory. Rather, different domestic legislations implementing the EU Framework Decision correspond to different historical memories. Moreover, criminalisation jeopardises the tenets of the liberal approach of criminal law and unveils a widespread trend towards the juridification of memory and remembering. Therefore, politics and history, which should be the prime actors of collective memory, are somehow marginalised by criminal law. Criminal law on the contrary, is proving to be neither the most adequate nor the most effective remedy.

Emanuela Fronza

Backmatter

Title: Memory and Punishment
Author: Dr. Emanuela Fronza
Publisher: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-234-7
Print ISBN: 978-94-6265-233-0
DOI: https://doi.org/10.1007/978-94-6265-234-7