Toben's Arrest: A New Assault Against Free Speech
Why 'Holocaust Denial' Laws are Dangerous
By Mark Weber
Institute for Historical Review
October 15, 2008
On October 1, British police at London's Heathrow airport arrested Dr. Frederick Toben – an Australian citizen and a Holocaust revisionist – during a stop on a flight from the United States to Dubai. He was detained on the basis of a “European Arrest Warrant” issued by German authorities that accuses him of publishing material online "of an anti-semitic and/or revisionist nature.”
Toben, a former schoolteacher who holds a doctorate in philosophy, has reportedly described the Holocaust as "a lie". His Australia-based “Adelaide Institute” website allegedly carries the transcript of an interview in which he says there is "no proof" that the Hitler regime systematically exterminated Jews.
He is being held in custody until a British court decides if he is to be extradited to Germany. A hearing is scheduled for Oct. 17. A German prosecutor says that if Toben is extradited, he could be sentenced to five years in prison. He would then join two German citizens, Ernst Zundel and Germar Rudolf, who are already serving prison terms for having violated Germany's “Holocaust denial” law.
In Germany it is crime to “deny, play down or justify” genocidal acts carried out by the Hitler regime. “Holocaust denial” is also a crime in France, Switzerland, Belgium, Austria, and several other European countries, as well as in Israel. Over the years many individuals have been fined, imprisoned or forced into exile for “denying the Holocaust,” including Robert Faurisson and Roger Garaudy in France, Siegfried Verbeke in Belgium, Juergen Graf and Gaston-Armand Amaudruz in Switzerland, and Ernst Zundel, Germar Rudolf, Guenter Deckert and Hans Schmidt in Germany.
The Toben case has generated considerable media attention and much critical commentary. One of Britain's most influential daily papers, the Telegraph, sharply condemned the arrest as a “blatant attack on free speech.” In an editorial headlined “Dr. Fredrick Toben's Arrest Should Alarm Us All,” it cautioned that “the British legal system should have no part in this process.” Chris Huhne, a British parliamentarian and home affairs spokesman of the Liberal Democratic party, noted that “Holocaust denial” is not a crime in Britain, and said that British courts should refuse to extradite Toben.
In most of the world, Europe's “denial” laws are regarded as peculiar and unjust. This was obvious after the November 2005 arrest in Austria of British historian David Irving. He was detained on the basis of an outstanding warrant for the “crime,” committed 16 years earlier, of having expressed dissident views about the wartime treatment of Europe's Jews. After a sensational trial in Vienna, he was sentenced to three years imprisonment. (He was released after 13 months.)
Irving's ordeal prompted commentary in newspapers around the world – nearly all of it critical of the arrest and of the laws in a few European countries under which he, and many others, have been imprisoned, fined or forced into exile.
“Denial” laws criminalize even factual or truthful statements that “play down” the wartime treatment of Europe's Jews, thereby violating ancient and universal standards of justice.
Justice applied selectively is not justice. It is a form of injustice. Because “denial” laws prohibit dissident views about only one chapter of history, they are inherently unfair. They inhibit historical inquiry and restrict free speech.
Free and open societies normally protect even offensive speech. That's why western countries defend the right of their citizens to “deny, play down or justify” crimes committed by the United States, Israel or the Soviet Union, or to publish offensively anti-Christian or anti-Muslim writings.
Across Europe authorities routinely punish those who say or write things that the Jewish community regards as offensive, but take no action against those who offend Christian or Muslim sensibilities. Thus, in Germany and several other countries, it's a criminal offense to say that Elie Wiesel is a liar or that the Anne Frank diary is a fraud, but perfectly legal to say that Jesus or Muhammad were liars.
“Holocaust denial” laws are the result of a well-organized, long-term Jewish campaign. In 1982, the Institute for Jewish Affairs in London, a London-based agency of the World Jewish Congress, announced that it was launching a worldwide campaign to persuade and pressure governments to outlaw "Holocaust denial.” The anti-revisionist laws that were subsequently enacted in several European countries reflect the success of this initiative. Germany enacted its “Holocaust denial” statute in 1985 (amended in 1994), France in 1990, Austria in 1992, Belgium in 1995, and Slovakia in 2001. Underscoring the organized nature of this campaign, the International Association of Jewish Lawyers and Jurists in June 1998 called for new and more severe laws against “Holocaust denial.”
Because Germany is trying to impose its “denial” statute beyond its own borders, the Toben case has dangerous implications for online freedom of expression everywhere. Everyone who cares about freedom of speech – even those who are outraged by Toben's views -- should be alarmed by Germany's high-handed attempt to censor the World Wide Web.
Toben's extradition to Germany would establish a dangerous precedent. Britain and other European Union countries would be obliged to turn over to Germany anyone in any EU state, including visitors from non-EU countries, who expresses dissident views on “the Holocaust” that are accessible on the Internet.
In the Zundel and Rudolf cases, German state prosecutors claimed the right to prosecute persons for Internet “denial” postings on websites in countries where such writings are legal. In the Toben case, German authorities are asserting the right to punish even non-citizens for such violations.
German authorities claim the right to prosecute anyone anywhere for expressing dissident views on “the Holocaust” that can be accessed online in Germany, even when such expressions of opinion are entirely legal in the country where they are posted, and regardless of the language in which they are written.
As some observers have pointed out, Germany is trying to "legislate for the entire world" by treating downloadable Internet material as a German publication. Nigel Farage, leader of the UK Independence Party, said that while his party in no way condones Toben's views, “not only has he not broken any UK laws, but in seeking to arrest him, Germany is claiming censorship rights to the entire Internet network.”
The danger also exists that other countries, citing the German precedent, may similarly seek to punish persons outside their borders who post writings that violate their parochial notions of permissible speech and writing.
Turkey, for example, could demand the extradition and punishment of anyone in any European state who posts online writings that violate the country's law that makes it a crime to insult the Turkish nation. Pakistan or Saudi Arabia could demand the extradition and punishment of persons in Europe who post writings or images that insult Islam. China could demand the extradition and punishment of persons who call for the independence of Tibet, or who question the legitimacy of China's Communist Party.
It is difficult to believe that Germany would allow other countries to punish its citizens on the same basis that Germany insists on punishing anyone who violates its own “thought crime” law.
Germany's effort to impose its peculiar limits on free speech outside its borders has potentially harmful consequences for Internet freedom of expression everywhere. Because the Toben case has such far-reaching implications, people in many countries will be closely watching how British authorities decide to handle Germany's extradition request.
Mark Weber is director of the Institute for Historical Review. He has written extensively about the issue of free speech on controversial historical questions. In Dec. 1998 and again in Oct. 2000 he testified in Canadian Human Rights Tribunal hearings in Toronto. For five days in March 1988 he testified in a Toronto District Court case as a recognized expert on the “Final Solution” and the Holocaust issue. He studied history at the University of Illinois (Chicago), the University of Munich, Portland State University and Indiana University (M.A., 1977).
For Further Reading
“Töben's arrest ‘fatally flawed', says lawyer,” by J. Rozenberg. The Telegraph (London), Oct. 10 or 11, 2008.
( http://www.telegraph.co.uk/news/newstopics/lawreports/joshuarozenberg/3175523/Tobens-arrest-warrant-fatally-flawed-says-lawyer.html )
“Holocaust denier Fredrik Toben's trial soon: prosecutor,” by P. Wilson. The Australian, Oct. 9 or 10, 2008.
( http://www.theaustralian.news.com.au/story/0,25197,24478370-5006787,00.html )
“British Parliamentarian Rejects Extradition of 'Denier' Toben,” by Jonny Paul. The Jerusalem Post (Israel), Oct. 7, 2008.
( http://hypercrypton.livejournal.com/262201.html )
“Western Hypocrisy on the Holocaust,” by Paul Grubach. Mehr News Agency (Iran), Oct. 7, 2008.
( http://www.mehrnews.com/en/NewsDetail.aspx?NewsID=761339 )
“Dr Fredrick Toben's Arrest Should Alarm Us All.” The Telegraph (London), Editorial. Oct. 5, 2008.
( http://www.telegraph.co.uk/comment/telegraph-view/3562585/Dr-Fredrick-Tobens-arrest-should-alarm-us-all.html )
“Breaking News from Freedom's Front Line” [Toben arrest]. Telling Films (Britain), Oct. 3 or 5, 2008
( http://www.jailingopinions.com/toben.html )
“Australian Revisionist To Remain in British Custody,” by A. Balakrishnan. The Guardian (Britain), Oct. 3, 2008
( http://www.guardian.co.uk/world/2008/oct/03/germany.australia )
“Toben Case Sets 'Dangerous Precedent',” by Julian Joyce, BBC News, Oct. 3, 2008.
( http://news.bbc.co.uk/2/hi/uk_news/7648980.stm )
Banged Up, by David Irving. (Windsor, England: Focal Point, 2008). Book in pdf format. 2008.
( http://www.fpp.co.uk/books/Banged/up.pdf )
“German Holocaust Denier [German Rudolf] Imprisoned for Inciting Racial Hatred” Deutsche Welle (Germany), March 16, 2007.
( http://www.dw-world.de/dw/article/0,2144,2386563,00.html )
“Ernst Zundel” [biographical profile] Revisionists.com. Feb. 15, 2007.
( http://www.revisionists.com/revisionists/zundel.html )
“'Holocaust Denial' Laws are Disgraceful,” by Mark Weber. Nov. 2005.
( http://www.ihr.org/news/112705HoloDenial.html )
“The Importance of the Zundel Hearing in Toronto,” by M. Weber. The Journal for Historical Review, Sept.-Oct. 2000.
( http://www.ihr.org/jhr/v19/v19n5p-2_Weber.html )
“Australia Orders Censorship of Toben Website.” The Journal of Historical Review, Sept.-Oct. 2000.
( http://www.ihr.org/jhr/v19/v19n5p14_censorship.html )
“Fight Over Holocaust Denial,” The Associated Press. International Herald-Tribune, June 29, 1998. Reprinted in: “What the Papers Say,” Justice, The International Association of Jewish Lawyers and Jurists (Israel), Spring 1999, p. 30.
“Jewish Group Demands More Anti-Revisionist Laws,” The Journal of Historical Review, July-August 1998, p. 22
“Who is Ernst Zundel, and Why is He in Jail?,” by M. Weber. Sept. 2003.
( http://www.ihr.org/news/030923Zundel.shtml )
“IJA Wants Holocaust Denial Law.” Jewish Chronicle (London), April 23, 1982.
“Making the Denial of the Holocaust a Crime in Law,” Research Report, Institute of Jewish Affairs (in association with the World Jewish Congress), London, March 1982, pp. 1-12.