Denial of Genocide and Crimes against Humanity in the Jurisprudence of Human Rights Monitoring Bodies

Abstract

In 2008, the EU Council after long disagreement adopted a Framework Decision (FD) on combating certain forms and expressions of racism and xenophobia by means of criminal law. The principal aim of the decision was to institutionalise at the EU level a framework to halt the growing instances of Holocaust denial. However, proposals from central and eastern European member states led that concept of denial to be applied to other historical issues. The EU example has inspired debates about ‘memory laws’ also in countries outside the EU and stimulated discussions on widening the existing limitations on freedom of expression in some of the member states. This has led to alarm among historians that increasingly legal regulation will construct views of historical events. This article traces the evolution and comparative assessment of ‘memory laws’ in the jurisprudence of the two human rights monitoring bodies: the Human Rights Committee (HRC) and the European Court of Human Rights (ECtHR). It analyses the arguments in favour of limitation of free speech in the jurisprudence of both bodies and gives a critical appraisal of their jurisprudence in the light of the new claims for expanding ‘memory laws’.