Holocaust-denial law and the attempted extradition of a man for publishing antisemitic material
Last updated at 12:06 PM on 06th October 2008
Later this week, a London magistrates’ court will hear a bail application in an extradition case which should be ringing alarm bells.
A German-born Australian citizen, Fredrick Toben, was arrested as he passed through Heathrow by British police acting under an EU arrest warrant issued by the German authorities.
The Germans have accused him of publishing antisemitic Holocaust-denial material on his Australian website.
There is no doubt that the views expressed by Toben, a notorious falsifier of history who was previously sentenced to nine months’ jail in Germany for breaching its Holocaust- denial law, are vile. He says, for example, that there is no proof that Hitler systematically exterminated the Jews and that Auschwitz was merely a ‘transit camp’.
As a Jew, I am acutely alive to the vicious potential of denying the Nazis’ attempted extermination of the world’s Jews. Such lies are used to whip up hatred against the Jewish people by effectively accusing them of fabricating claims of genocide. There is no question that this not only denies the historical evidence of Hitler’s ‘Final Solution’, but also subjects Jews round the world to further hatred and persecution. Holocaust-denial is, indeed, a modern form of Jew-hatred.
But, through gritted teeth, I have to say that I am totally against the extradition of this man and appalled at the political and legal developments that have brought these moves about.
There are two fundamental issues at stake here. First is the threat to the principle of freedom of speech. Second is the erosion of Britain’s power to uphold its own historic commitment to that principle.
Freedom of speech is a bedrock of our society. Sure, it’s not absolute; but we limit it only in the most rare of circumstances where it poses a direct threat to individuals, such as inciting or encouraging people to violence.
For similar reasons, we also outlaw incitement to racial hatred. But we draw a distinction, for example, between inciting hatred of people for what they inescapably are, which we rightly treat as a crime, and inciting hatred of their views, which we see as part of the cut and thrust of a liberal democratic society. That’s why there was such uproar over the new crime of incitement to religious hatred.
It’s because of this respect for debate that this country has never criminalised Holocaust-denial.
Odious as it is, it is an interpretation of history – and one which in any event defies easy categorisation.
True, it’s an interpretation that used to stir up hatred against Jewish people. But once you argue that it should therefore be made a crime, there’s no end to it.
After all, you could make exactly the same point that the current vilification of Israel and the denial that it is the victim of aggression in the Middle East has led to an upsurge in violence and prejudice against Jews worldwide.
Even more fundamentally, classic English literature is stuffed with anti- Jewish stereotypes and attitudes. But no one would suggest that expressing such opinions about Israel should therefore be made a crime, or that such literary classics should be censored.
In a free society, the proper antidote to the dissemination of lies is the expression of the truth. The arch Holocaust-denier David Irving was jailed for this crime in Austria. Did that expunge his poison? Of course not; if anything, it helped him pose as a martyr.
What was more effective was surely the destruction of his ideas in a British courtroom when he chose to bring a libel action – which rebounded against him by discrediting his claim to be a ‘historian’ and ending with his denunciation by the trial judge as a ‘pro-Nazi polemicist’.
That is the British way of doing things. But what is so disturbing about the Toben case is that we may be forced to become accomplices to a view which is inimical to our own.
If Toben is extradited, this will mean that Britain will be treating as a criminal suspect someone who is accused of behaviour which is not regarded as a crime in this country.
That breaches an ancient principle of our law – which we so regrettably junked when we signed up to the European arrest warrant. Moreover, it is not just foreigners but British citizens who in theory can now be arrested in the UK and extradited to a country which accuses them of committing a crime there which is not treated as a crime here.
This is part of the attempt to create a ‘corpus a European body of criminal law, which is in turn a key element of the EU vision of a unified super-state whose inhabitants all subscribe to the same principles.
But we do not. Both Germany and Austria have a very particular reason for criminalising Holocaust-denial. Given their appalling history, they are understandably terrified that it will help bring about a revival of Nazism.
They are entitled to reach such a conclusion and enshrine it in their own law. But equally, we should be entitled to say that we don’t share this view. By signing up to the European arrest warrant, however, we have removed that most precious privilege.
Even if Toben is not extradited – and there is a view that the wording of the Extradition Act may provide him with a loophole – the EU arrest warrant remains a threat to our liberties.
Its scope is dangerously imprecise. Under its terms, people can be extradited to a country which accuses them merely of ‘racism and xenophobia’. But these prejudices are notoriously difficult to define.
Indeed, those who object to the EU arrest warrant and the EU project itself as an attack on national sovereignty are themselves routinely accused of xenophobia.
It is surely not fanciful, therefore, to imagine an Orwellian scenario in which such people may themselves be extradited and prosecuted – for warning against the very abuse of power that may put them in the dock.
Holocaust-denial falls into the category of ‘hate-crime’ which has become such a fixation among Left-wingers and an article of faith within the EU. These zealots appear to believe that hatred and prejudice can be expunged from the human heart through the exercise of the law.