Outlawing Genocide Denial: The Dilemmas of Official Historical Truth by Guenter Lewy (review)
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Outlawing Genocide Denial: The Dilemmas of Official Historical Truth, Guenter Lewy (Salt Lake City: University of Utah Press, 2014), 224 pp., paperback $24.95, electronic version available.

The question posed by Lewy in this solid, scholarly study remains intractable. Should governments use their power to establish legally-binding definitions of historical truth? Are there certain events (or series of events) that are beyond dispute and so dangerous to deny that they require the coercive power of the state? If we accept this, then people who openly advocate a contrary position may be prosecuted, fined, or incarcerated. Structuring the work as an investigation of legal precedent, Lewy proceeds by describing the social and judicial contexts for current legislation, in particular the key cases whose litigation influenced law in Europe and North America.

Lewy's concerns originate within the legal and political battles regarding both the murder of Europe's Jews under Nazi Germany and the "forced relocation" of the Armenian population in Ottoman, and then Republican Turkey. The distinction between legal and political modes of assessment remains vital to his arguments on several counts: legally, if a court has not "taken judicial notice" of an event or series of events as indisputable fact, then the burden of proof rests with those who advocate for the events' indisputability; in this situation those who deny do not bear the burden of having to prove that something did not happen. The political mode of assessment generally rests with expediency. Partisan or nationalist advantages play a large role in maintaining or denying that genocide has occurred. On the other hand, efforts to prevent hate speech can influence legislation in ways that compromise free speech, as, arguably, in the case of Canada.

In the Canadian legal system, which is based on common law and adversarial proceedings, such an approach can devolve into relegating the Jewish genocide to the legal status of "hearsay." Such happened during the Canadian trial of Holocaustdenier Ernst Zündel. Here the weight of evidence put forward by eminent historian Raul Hilberg carried the same weight as the contentions of Holocaust-denier Robert Faurisson. Although Zündel was convicted by two juries, and the second trial did "take judicial notice" of the Holocaust, concluding that the Holocaust was undisputable fact rather than "hearsay," the Supreme Court of Canada found that the "false news" statute, under which Zündel had been charged, was not constitutional. Subsequently deported to his native Germany, Zündel was convicted of Volksverhetzung (incitement to hatred) there and served a jail sentence.

The statutory language invoked against Zündel contributed to the debacle in Canada. The Canadian law had cast a wide net in efforts to respond to popular demand to curb hate speech and incitement to violence. As was the case in Germany, Switzerland, and Austria—all cases addressed by Lewy—such a politically-driven effort, however well intended, could not help but produce legislation vague enough to be perceived by some as infringing free speech. Indeed, the response of some elected officials to political pressures contributed to judicial [End Page 135] confrontations in France and Switzerland regarding whether or not denial of the Armenian suffering (Lewy does not use the word "genocide") under the Ottoman Turks is illegal.

The political considerations that guide legislation framing official truth can be complex. In both France and Switzerland, small but vocal minorities contested whether or not the events of 1915 were indeed genocide, and, therefore, whether their denial should fall under the purview of legal redress. Lobbying groups of Armenians and Turks invoked the recognition of free expression. Ultimately, at the heart of these debates lies the definition of "genocide" and all its connotations.

Having explored the legal and political frameworks, Lewy finally posits his own case against restrictions on free and open debate; he includes Holocaust denial. He does not advocate allowing the special circumstances and considerations prevailing in Germany to condition policy in other countries. His concern emanates as well from the possibility that debates revolving around the Armenian tragedy could be cut off by legislative fiat, rather than arriving at truths through professional, public debate. Instead, he argues that our definitions are best advocated...