Can the Law Understand the Harm of Genocide Denial?

Abstract

INTRODUCTION What's so bad about genocide denial? Several countries (largely in Europe) have banned denial of the Nazi crimes against the Jews. French Armenians have tried repeatedly to pass legislation banning Armenian genocide denial. Rwanda has banned denial of its genocide. The European Union Framework Decision calls on Member States to ban denial of genocide and crimes against humanity. Statutory violations can be enforced with prison sentences. One must add to this a general loathing of genocide denial. Even those who would tolerate genocide denial, describe it as offensive, vile and disgusting. This often comes with a call for non-legal responses to genocide denial ranging from education and counter-speech to ‘informal censorship’ (i.e. when libraries, social media outlets, newspapers, and other non-state actors refuse to engage with genocide deniers). While there is a consensus that genocide denial is harmful, the harm is rarely spelled out. Instead, the focus is on the genocide denial bans. Reactions include shock (‘how can a free society ban a view about the past?’), assertions of the importance of history, and well-intentioned efforts to cabin the problem by narrowing the zone of acceptable genocide denial bans. These last efforts take two forms. Either one creates a hierarchy of genocides in which some killings (i.e. the Holocaust) become more important than other genocides. Or one makes an argument based on geography: given the deportation of 80,000 Jews during the occupation, France can (possibly) ban Holocaust denial; but the Ottoman genocide against the Armenians is another matter entirely since it did not occur on French soil. These attempts to justify legal toleration of genocide denial make it easy to pass over a central question of the Denialism and Human Rights conference: what is it about denial that poses harm? For some of the types of denial discussed at this conference, the harm is relatively easy to see. For example, denial of global warming encourages states, corporations and individual consumers to make decisions that will exacerbate climate change. Likewise, the South African government's denial of AIDS led it to restrict access to anti-AIDS drugs. The harms here are immediate and visceral.