Denial or Justification of Genocide as a Criminal Offence in European Law

Abstract

In this paper. the rules of the EU and the Council of Europe and the jurisprudence of the ECHR, on criminalisation of denial or justification of genocide are analysed, more specifically the Holocaust of the Jews by the Nazis in the Second War World. In view of the emergence of neo-Nazi parties and Nazi violence in other areas, such as football, it is concluded that it is appropriate to include the criminalisation of justification of Nazi genocide in the European criminal codes, when this is done with racist intent and seeking to reopen similar practices. Existing legislation in the field of international and European law is examined and some of its deficiencies have been pointed out, proposing some lege ferenda guidelines, in agreement with that indicated in Recommendation No. 7 of the ECRI, which is not a legislative text, suggesting. according to the author’s opinion. that the criminal offence of denial of genocide should be reduced to the justification of the Nazi Holocaust, according to the jurisprudence of the Nuremberg International Military Tribunal, established by the London Agreement of 8 April 1945, or at most, strictly to the genocides recognised by International Courts, and that the crime should not be extended to crimes against humanity or war crimes. Finally, it is noted that the term “genocide” in relation to the criminalisation of its justification today, should be used as a legal concept, referring only to genocide declared as such by international tribunals, after the International Military Tribunal of Nuremberg, so the criminal offence of denial of genocide should not be applied to historical events prior to that date. On the one hand, the legally protected good would be the equal dignity of every human person, combined with other rights such as freedom of expression and opinion, as well as freedom of research. In this context of criminal proceedings, the recommendations of the ECRI distinguish between hate speech with its different forms of crime and denial of genocide as a crime framed within the previous (crimes), but with a specific offense. The wrongdoing aimed at being prevented is racial discrimination or injury to the person’s dignity. It is suggested that discourses of denial and/or justification of genocide should be addressed within the crimes of racial discrimination and those cases in which this discourse takes on the form of a public denial, trivialization, justification or condonation of crimes of genocide, whose existence has been recognised by the courts, should be considered as a special form of hate speech It must respond also to the intention of denigrating or stigmatizing individuals or groups because of their race, religion, nationality or ethnic or national origin. The criminalisation of this speech is related to its objective, which is to hurt individuals or groups. What follows is that there must be incitement or provocation to denigrate individuals or groups, which requires wilful misconduct with racist intent and that the speech is made in public. The unjust part is the generation of a certain risk of unlawful acts against persons or groups. Two other features that must come together to give rise to a crime of hate speech is that speech should reflect or foster an unjustified assumption that the person giving it considers him/herself to be superior to the person or group of persons being criticised. Moreover, the intention of this speech must be to incite or reasonably expect the effect of inciting others to commit acts of violence, intimidation, hostility or discrimination against those targeted by the critical discourse, as, in this way, this is a particularly serious form of speech of hate.