What If: Obama and Biden against Hitler, or….Chamberlain and Halifax against Ahmadinejad?

Elihu Richter

The parallels to the run-up to WWII are striking. During this period, Hitler bullied and bluffed as the world cringed. Suppose Obama and Biden had been in power in the US at the time. What would they have done?

As Ahmadinejad struts into the UN Non-Proliferation Treaty meeting, Obama and his Administration continue to dither. The Iranian Revolutionary Guards are racing towards nuclear capacity and ever more potent missile delivery systems, stepping up their genocidal incitement and support for terror proxies, and suppressing dissidents. Obama's clenched fist has withered into a limp wrist.

The parallels to the run-up to WWII are striking. During this period, Hitler bullied and bluffed as the world cringed. There was the Anschuss of Austria in March 1938, the Munich Agreement in Sept 1938, and the Molotov-Ribbentrop Pact on Aug 23 1939, one week before Hitler invaded Poland and Chamberlain’s UK declared war.

Let’s do a little counterfactual history to examine the roles of yesterday’s appeasers and today’s engagers. Then the actors were Neville Chamberlain and Lord Halifax, who were pitted against Hitler and his Axis. Today they are Barack Obama and Joseph BIden, his all influential Vice President, and formerly the powerful chairman of the US Senate Foreign Relations Committee. Today's Hitler wannabe is Ahmadinejad, along with his Axis of Genocide and Genocidal Terror.

Fact and counterfact
Counterfactual history is the academic buzz term for playing “what if."

The idea is to simulate how the big players in past crises would act in current crises, or conversely, to simulate how players in current crises would have -- or should have --acted in past crises. Because we know the results of decisions in past crises, we can make some educated guesses about the results of such decisions in similar crises today. Counterfactual history implies there are lessons from yesterday's then and there to today’s here and now ---, and vice versa. As a medical doctor with history as a hobby, I think it would be interesting if historians were to diagnose prognose, prescribe, make house calls, and tell us when our leaders could be sued for malpractice.

Hitler and Ahmadinejad:
Both Hitler and Ahmadinejad mobilized hate language to dehumanize, demonize and delegitimize. A copy of Mein Kampf in Iranian is the centerpiece of the show window in the bookstore alongside the entrance of Iran's Foreign Ministry, but Ahmadinejad's explicit calls for destruction of Israel surpass Hitler's euphemisms. Hitler annexed Austria, forged alliances with Italy and Japan, and then signed the notorious non-aggression pact with Russia, while discreetly supporting indigenous Nazi front movements in Norway, the Netherlands and France. Ahmadinejad’s diplomats have shrewdly built an axis of genocidal and genocidal terror, which now includes Syria, Hezbollah, Hamas, with Venezuela as a possible enabler, protector and accomplices, and they are drawing Turkey into Iran's orbit. Ahamadinejad, like Hitler, disarms appeasers and doubters, by making eloquent and moving peace speeches every now and then--while intimidating the world.

In the meantime, the clock on Iran is ticking. (Today the two big US players are Barack Obama and Joe Biden, now as powerful as Cheney was in Bush Jr's first term.)

Obama and Chamberlain
Google gives more than 600,000 hits for the phrase “Obama and Chamberlain.” Obama sees himself as a mediator healing the rift between clashing civilizations---Christian and Muslim; Chamberlain saw himself as saving the world from war. Like Chamberlain, he has been socially progressive, humane and enlightened, but does not support groups subject to conquest, (Tibet), and projects a low profile towards human rights abuses of repressive regimes (the state orchestrated political starvation campaigns in North Korea and the repression of the Falun Gong in China, and the protestors of a stolen election in Iran). Some historians say he appeased to buy time for a weak England to get ready. He has backed away from supporting dissidents in Iran---e.g., his famously closing the New Haven Iran Human Rights Documentation Center. I would not be surprised to discover that he sees himself as a future Secretary General of the UN, as the Grand Conciliator.

Obama’s administration has even turned a blind eye to Iran’s support, equipping and training of groups attacking civilians and US soldiers in Iraq and Afghanistan. This prolonged dithering in response to loss of American lives goes far beyond Chamberlain’s appeasement, which abruptly came to an end on Sept 1 1939, when Nazi Germany attacked Poland, a faraway place for Brits. Chamberlain then declared war on Germany--to honor the UK's treaty with Poland. Would Obama have done so, had he been the UK’s Prime Minister, and if so how long it would have taken him to decide?

We have forgotten Chamberlain's progressive domestic policies, but remember his appeasement and its disastrous consequences. But Chamberlain was a faster learner than Obama has been until now. Right after returning from Munich, he ordered increases in the British defense budget, manufacture of aircraft and heavy weaponry, and distribution of gas masks to the population for the war he knew was coming. And after all, he went to war immediately in response to Hitler's invasion of Poland. This was the very war which appeasement sought to avoid, but in fact brought on. By contrast, Obama's dithering has bought time for an originally weak Iran to raise the ante against the U.S.



Biden and Halifax
Many know about Chamberlain, but few remember Lord Halifax, his Foreign Secretary, and perhaps the strongest proponent of appeasement. Halifax was a pillar of British society and a deacon in the Anglican Church. After replacing Anthony Eden, who resigned in February 1938 in protest against Chamberlain’s appeasement, he supported the Munich Agreement with Hitler to destroy Czechoslovakia. Halifax also meddled in French politics, toppling Leon Blum, who had his doubts about appeasement. Daladier, Blum’s replacement, was a more complaint type, who went along with Chamberlain's Munich deal.. During the 5 days of Dunkirk, when Hitler was sending out generous peace feelers, Halifax wanted to take England out of the war.

Just before Dunkirk, after backbenchers led a rebellion to force Chamberlain to resign, there was a touch-and-go period in which Halifax could have become Prime Minister instead of Churchill. Had he been the man, one shudders to think what would have happened to Europe, and Western Civilization. Thanks to Churchill, all the rest is history.

Is Joseph Biden today’s Lord Halifax as it were? A liberal Democrat on domestic issues when in the Senate, as the powerful Chairman of the Senate Committee on Foreign Relations, he voted against sanctions against Iran. Most notably, he blocked the Senate from considering a 2007 House of Representatives Resolution calling upon the US Government to use the tools of international law to indict Ahmadinejad for his incitement to genocide, support for terror, and illegal development of nuclear weapons. He has called for dividing up Iraq, which would have turned over its western side to Syria and its eastern side to Iran. Biden is said to be the Iranian Mullah’s favorite senator. He has been silent on their brutal repression of dissidents.

What would Chamberlain and Halifax have done to confront the Iranian threat? They probably would have appeased. What would Obama and Biden have done against the Nazi threat had they been in charge of the UK? They might have engaged, endorsed the Munich agreement, and wobbled on the UK treaty to join Poland when Germany attacked it. Would Biden, had he been in the US Senate in the dark days of the Battle of Britain, have advised FDR, to go along with Joe Kennedy to abandon the UK?

Joe Biden’s influence may be one reason why President Obama’s clenched fist has withered into a limp wrist. JB Kelley has used the term “preemptive cringe” to describe “engagement.” In fairness to Chamberlain and Halifax, some historians say their appeasement during the mid 1930’s right up to Sept 1939 and even after, was based on a realistic perception of the UK’s military weakness and unpreparedness and the need to buy time.

Furthermore, the world then lacked a coherent body of historical experience on the furious evil energy which drives modern megalomaniac totalitarian genocidal regimes. The tools of international law to counter genocidal threats did not exist yet. There was no UN Convention on the Prevention and Punishment of Genocide, or a body of cases in criminal international aw, Universal Jurisdiction, or a Rome Statute of the International Criminal Court specifying that incitement to genocide is a crime against humanity.

Today, Obama and Biden would expected to know what happens when such regimes are appeased, a.k.a. engaged. Yet the two have been distinguished by their failure so far to make use of the tools of international law against genocide and its incitement. The world developed these tools precisely to prevent such threats. There can be no more compelling case for applying these tools than Iran's incitement to genocide, its support of genocidal terror and its suppression of human rights. Since incitement to genocide leads to genocide, Obama and Biden's indifference to the dehumanizing hate language of Ahmadinejad and his associates means they have become complicit bystanders.

I suggest that the foregoing counterfactual comparisons suggest a harsh counterintuitive conclusion: Obama and Biden deserve lower ratings than Chamberlain and Halifax.



What if: The bit players
Others have bit roles in this exercise in What If's. William Shirer, in The Rise and Fall of theThird Reich writes about how Geoffrey Dawson, the editor in chief of the London Times, killed reports from his correspondent in Berlin on the Nazi brutality inside Germany. He was protecting Chamberlain’s appeasement policies. I was reminded of Dawson’s role by the postures of the editors of the NY Times in US and Haaretz in Israel, both the Daily Bibles of the liberal classes. Recall the NY Times Roger Cohen’s description of the vibrancy of Islamic democracy in his pre-election reports on Iran just before the regime's brutal crackdown on dissidents. David Landau, the former editor of Haaretz, suppressed reports of the investigation of Sharon’s corruption so as to not to jeopardize the withdrawal from Gaza. He remains notorious for telling Condoleeza Rice that Israel needed to be raped for its own good.

Let’s get back to Anthony Eden, who quit in protest against Chamberlain’s appeasement. Is Robert Gates trying to play Obama’s Eden? As John Bolton has pointed out on Fox News, Gates’ leaked memo to Obama warning that the US government has no Iran policy is the classic Washington DC CYA maneuver for paving the way for a resignation.

Is there a Churchill in the House?
Churchill towers over all, but only in hindsight. In real time, he was regarded by his peers as a failed military strategist after the Dardanelles disaster in World War I. A political opportunist who ditched the Liberals for the Conservatives, he had been on the outs for some 20 years, having the reputation of a brilliant, witty, boozing loose cannon. A non-apologetic imperialist, he was hated by Indians for calling Gandhi a dirty little Indian. An opponent of the socialists, he was hated by trade unionists for crushing the strike of coal workers. But he instinctively sized up Hitler as a monster of apocalyptic evil.



As the genocide scholar Robert Melson has written, had Churchill been Prime Minister in 1938, he might have’ gone to war to protect Czechoslovakia, and perhaps would have toppled Hitler. But thousands of British soldiers would have been killed. He would have been hauled before a Parliamentary Commission of Investigation, and hounded out of office. Opponents would have said he had no business pursuing a reckless military adventure so far away from home.

Suppose Obama and Biden had been in power in the US at the time. Would they have distanced themselves from Churchill? There were plenty of reasons to do so. The US had not recovered from the effects of the Depression’s second hit in 1937. Anti-Semitism was endemic. The US population was isolationist. Would Obama and Biden have orchestrated some backchannel moves to topple Churchill, perhaps with the help of Joe Kennedy. I infer this “what if" scenario” from their failure to counter Iranian terror raids in Iraq, Syrian support for terror, their lukewarm support for the dissidents in Iran, their shutting off of funding for the Iran Human Rights Documentation Center, and the cold reception for the Dalai Lama. Add to this list the appeasement of Syria as well as Iran, the wobbliness on North Korea, and their attempts to bludgeon Netanyahu and destabilize his government.

Today’s Joe Kennedy could be Martin Indyk. And John Bolton may be today’s John Kennedy, who later wrote the book, Why England Slept.

Back then, the air was thick with appeasement, Now it is thick with engagement. But appeasement produced a chain reaction, ending with the Molotov Ribbentrop Pact, after Stalin panicked, and felt that the Western allies would do nothing if Hitler attacked the Soviet Union. Churchill would have thundered against the dangers of the United States pandering to the enemies of freedom and democracy and dumping its friends.

I thank Professors Israel Charny and Elliot Berry, Gregory Stanton and Jacob Neusner and Dr. Yael Stein, Richard Hellman and David Bedein for encouragement, criticisms' and feedback, and Dr. Joel Fishman and Professor Richard Landes for incisive editorial comments.

Professor Elihu D Richter MD MPH, an environmental epidemiologist, is Editor and Director of the GPN World Genocide Situation Room and Associate Director of the Institute on the Holocaust and Genocide in Jerusalem. He is also Head of the Genocide Prevention Program at Hebrew University-Hadassah School of Public Health and Community Medicine and former head of the Unit of Occupational and Environmental Medicine. He has published and lectured on the use of public health models for the prediction and prevention of genocide.

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The Laws Banning Holocaust Denial

Jacqueline Lechtholz-Zey

I. INTRODUCTION
A survey of the sixteen countries that have enacted laws that either directly criminalize Holocaust denial or can be used to prosecute individuals who deny the Holocaust: Austria, Belgium, the Czech Republic, France, Germany, Hungary, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, Slovakia, and Switzerland.

II. DISCUSSION
A. Laws that explicitly ban Holocaust denial
Austria
The Verbotsgesetz 1945 (The Prohibition Act 1945) is an Austrian constitutional law that provided the legal framework for denazification and aimed to suppress any potential of revival of Nazism in Austria. Yet the law did not clearly state that Holocaust denial was a Nazi activity, although the Austrian courts interpreted the act in this way. Because it was becoming more and more difficult to apply the law to neo-Nazi endeavors, particularly when “revisionism” became part and parcel of the neo-Nazi message, the law was finally amended in February of 1992. Among the changes to the law was a section that explicitly bans the denial or gross minimization of Nazi genocide or other Nazi crimes against humanity, thus making it easier to address Nazi propaganda and historical “revisionism.” The text of this law is as follows:

National Socialism Prohibition Law (1945, Amendments of 1992)
§3g. He who operates in a manner characterized other than that in § § 3a – 3f will be punished (revitalizing of the NSDAP or identification with), with imprisonment from one to up to ten years, and in cases of particularly dangerous suspects or activity, be punished with up to twenty years imprisonment.

§3h. As an amendment to § 3 g., whoever denies, grossly plays down, approves or tries to excuse the National Socialist genocide or other National Socialist crimes against humanity in a print publication, in broadcast or other media.

Belgium
The Holocaust denial law in Belgium was passed on March 23, 1995. This law makes it a crime to deny, grossly minimize, attempt to justify, or approve of the genocide committed by the Nazis during WWII. The offense is punishable by imprisonment of up to one year and a fine of up to 124 EUR, and prosecution is carried out by the Belgian Centre for Equal Opportunities.

Negationism Law (1995, Amendments of 1999)
Art. 1 Whoever, in the circumstances given in article 444 of the Penal Code denies, grossly minimizes, attempts to justify, or approves the genocide committed by the German National Socialist Regime during the Second World War shall be punished by a prison sentence of eight days to one year, and by a fine of twenty six francs to five thousand francs. For the application of the previous paragraph, the term genocide is meant in the sense of article 2 of the International Treaty of 9 December 1948 on preventing and combating genocide. In the event of repetitions, the guilty party may in addition have his civic rights suspended in accordance with article 33 of the Penal Code.

Art.2 In the event of a conviction on account of a violation under this Act, it may be ordered that the judgment, in its entity or an excerpt of it, is published in one of more newspapers, and is displayed, to the charge of the guilty party.

Art.3. Chapter VII of the First Book of the Penal Code and Article 85 of the same Code are also applicable to this Act.

Art. 4. The Centre for Equal Opportunities and Opposition to Racism, as well as any association that at the time of the facts had a legal personality for at least five years, and which, on the grounds of its statutes, has the objective of defending moral interests and the honor of the resistance or the deported, may act in law in all legal disputes arising from the application of this Act.

Czech Republic
The Czech Republic has made denial of the Holocaust as well as negationism of communist atrocities illegal.

Law Against Support and Dissemination of Movements Oppressing Human Rights and Freedoms (2001)
§ 260 (1) The person who supports or spreads movements oppressing human rights and freedoms or declares national, race, religious or class hatred or hatred against other group of persons will be punished by prison from 1 to 5 years. (2) The person will be imprisoned from 3 to 8 years if: a) he/she commits the crime mentioned in paragraph (1) in print, film, radio, television or other similarly effective manner, b) he/she commits the crime as a member of an organized group c) he/she commits the crime in a state of national emergency or state of war

§ 261 The person who publicly declares sympathies with such a movement mentioned in § 260, will be punished by prison from 6 months to 3 years.

§ 261a The person who publicly denies, puts in doubt, approves or tries to justify Nazi or communist genocide or other crimes of Nazis or communists will be punished by prison of 6 months to 3 years.

France
The Gayssot Act was passed in France on July 13, 1990. The Act criminalizes questioning the existence of crimes of humanity as defined in the Charter of the International Military Tribunal, which was used at Nuremberg in 1945 to 1946 to convict Nazi leaders. Robert Faurisson, an infamous Holocaust denier, challenged the Act but the Human Rights Commission upheld it as a necessary means to counter possible antisemitism.

Law No. 90-615 to repress acts of racism, anti-Semitism and xenophobia (1990)
Art 9. – As an amendment to Article 24 of the law of July 29, 1881 on the freedom of the press, article 24 (a) is as follows written: Art. 24 (a). - those who have disputed the existence of one or more crimes against humanity such as they are defined by Article 6 of the statute of the international tribunal military annexed in the agreement of London of August 8, 1945 and which were a carried out either by the members of an organization declared criminal pursuant to Article 9 of the aforementioned statute, or by a person found guilty such crimes by a French or international jurisdiction shall be punished by one month to one years imprisonment or a fine.

Art 13. - It is inserted, after article 48-1 of the law of July 29, 1881 on the freedom of the press, article 48-2 thus written: Art. 48-2. - publication or publicly expressed opinion encouraging those to whom it is addressed to pass a favorable moral judgment on one or more crimes against humanity and tending to justify these crimes (including collaboration) or vindicate their perpetrators shall be punished by one to five years imprisonment or a fine.

Germany
Volksverhetzung (“incitement of the people”) is a concept under German criminal law that prohibits the incitement of hatred against a particular group of people.

§130 Public Incitement (1985, Revised 1992, 2002, 2005)
(1) Whoever, in a manner that is capable of disturbing the public peace:

1.incites hatred against segments of the population or calls for violent or arbitrary measures against them; or
2. assaults the human dignity of others by insulting, maliciously maligning, or defaming segments of the population,
shall be punished with imprisonment from three months to five years.

(3) Whoever publicly or in a meeting approves of, denies or belittles an act committed under the rule of National Socialism of the type indicated in Section 6 subsection (1) of the Code of Crimes against International Law, in a manner capable of disturbing the public peace shall be punished with imprisonment for not more than five years or a fine.

(4) Whoever publicly or in a meeting disturbs the public peace in a manner that assaults the human dignity of the victims by approving of, denying or rendering harmless the violent and arbitrary National Socialist rule shall be punished with imprisonment for not more than three years or a fine.

Section 3 above refers to the following crimes:

§ 6 Genocide
(1) Whoever with the intent of destroying as such, in whole or in part, a national, racial, religious or ethnic group:
1. kills a member of the group,
2. causes serious bodily or mental harm to a member of the group, especially of the kind referred to in section 226 of the Criminal Code,
3. inflicts on the group conditions of life calculated to bring about their physical destruction in whole or in part,
4. imposes measures intended to prevent births within the group,
5. forcibly transfers a child of the group to another group,
shall be punished with imprisonment for life.

Hungary
In 1992, The Hungarian Constitutional Court struck down an existing law against Holocaust denial on the grounds that criminalizing it was incompatible with the right to free speech. However, on February 22, 2010, the Hungarian Parliament again passed legislation that criminalizes the minimization or denial of the Holocaust, and President Laszlo Solyom signed the bill into law on March 3, 2010. According to a spokesperson, the current President does not believe that this legislation contravenes the Hungarian constitutional right to free speech.

The reform was passed with a 197-1 vote, with 142 abstentions. The new law will come into effect in early April. The text reads:

Those who publicly hurt the dignity of a victim of the Holocaust by denying or questioning the Holocaust itself, or claim it insignificant, infringe the law and can be punished by prison sentence of up to three years.

Israel
The Knesset (the Supreme Court in Israel) passed a law to criminalize the denial of the Holocaust on July 8, 1986.

Denial of Holocaust (Prohibition) Law, 5746-1986
Definitions
1. In this Law, "crime against the Jewish people" and "crime against humanity" have the same respective meanings as in the "Nazis and Nazi Collaborators Law, 5710-1950.

Prohibition of Denial of Holocaust
2. A person who, in writing or by word of mouth, publishes any statement denying or diminishing the proportions of acts committed in the period of the Nazi regime, which are crimes against the Jewish people or crimes against humanity, with intent to defend the perpetrators of those acts or to express sympathy or identification with them, shall be liable to imprisonment for a term of five years.

Prohibition of publication of expression for sympathy for Nazi crimes
3. A person who, in writing or by word of mouth, publishes any statement expressing praise or sympathy for or identification with acts done in the period of the Nazi regime, which are crimes against the Jewish people or crimes against humanity, shall be liable to imprisonment for a term of five years.

Permitted publication
4. The publication of a correct and fair report of a publication prohibited by this Law shall not be regarded as an offence thereunder so long as it is not made with intent to express sympathy or identification with the perpetrators of crimes against the Jewish people or against humanity.

Filing of charge
5. An indictment for offences under this Law shall only be filed by or with the consent of the Attorney-General.

Luxembourg
Article 457-3 of the Criminal Code, Act of 19 July 1997 outlaws Holocaust denial in addition to the denial of other genocides. Punishment for violating this Act is imprisonment up to 6 months and/or a fine. The offense of “negationism and revisionism” applies to

...anyone who has contested, minimized, justified or denied the existence of war crimes or crimes against humanity as defined in the statutes of the International Military Tribunal of 8 August 1945 or the existence of a genocide as defined by the Act of 8 August 1985. A complaint must be lodged by the person against whom the offence was committed (victim or association) in order for proceedings to be brought, Article 450 of the Criminal Code, Act of 19 July 1997.

Poland
Poland criminalizes both Holocaust denial and the denial of crimes perpetrated by communists.

Act of 18 December 1998 on the Institute of National Remembrance - Commission for the Prosecution of Crimes against the Polish Nation

Article 55
He who publicly and contrary to facts contradicts the crimes mentioned in Article 1, clause 1 shall be subject to a fine or a penalty of deprivation of liberty of up to three years. The judgment shall be made publicly known.

Article 1
This Act shall govern:
1. the registration, collection, access, management and use of the documents of the organs of state security created and collected between 22 July 1944 and 31 December 1989, and the documents of the organs of security of the Third Reich and the Union of Soviet Socialist Republics concerning:
a) crimes perpetrated against persons of Polish nationality and Polish citizens of other ethnicity, nationalities in the period between 1 September 1939 and 31 December 1989:

- Nazi crimes,
- communist crimes,
- other crimes constituting crimes against peace, crimes against humanity or war crimes

b) other politically motivated repressive measures committed by functionaries of Polish prosecution bodies or the judiciary or persons acting upon their orders, and disclosed in the content of the rulings given pursuant to the Act of 23 February 1991 on the Acknowledgement as Null and Void Decisions Delivered on Persons Repressed for Activities for the Benefit of the Independent Polish State (Journal of Laws of 1993 No. 34, item 149, of 1995 No. 36, item 159, No. 28, item 143, and of 1998 No. 97, item 604),
2. the rules of procedure as regards the prosecution of crimes specified in point 1 letter a),
3. the protection of the personal data of grieved parties, and
4. the conduct of activities as regards public education.

Romania
Romania proposed an Emergency Ordinance on March 13, 2002 to prohibit Holocaust denial. The law was ratified on May 6, 2006, and also bans racist, fascist, xenophobic symbols, uniforms and gestures. Violations are punishable by up to five years in prison.

Emergency Ordinance No. 31 of March 13, 2002
Article 3. – (1) Establishing a fascist, racist or xenophobic organization is punishable by imprisonment from 5 to 15 years and the loss of certain rights.

Article 4. – (1) The dissemination, sale or manufacture of symbols either fascist, racist or xenophobic, and possession of such symbols is punished with imprisonment from 6 months to 5 years and the loss of certain rights.

Article 5. – Promoting the culture of persons guilty of committing a crime against peace and humanity or promoting fascist, racist or xenophobic ideology, through propaganda, committed by any means, in public, is punishable by imprisonment from 6 months to 5 years and the loss of certain rights.

Article 6. – Denial of the Holocaust in public, or to the effects thereof is punishable by imprisonment from 6 months to 5 years and the loss of certain rights.

B. Laws that prohibit genocide denial generally
Several countries do not ban Holocaust denial specifically but instead have passed legislation criminalizing the denial of any genocide, which clearly can be enforced against Holocaust deniers as well.

Liechtenstein
Liechtenstein’s criminal code prohibits the denial of genocide:

§ 283 Race discrimination
5. Whoever publicly denies, coarsely trivializes, or tries to justify genocide or other crimes against humanity via word, writing, pictures, electronically transmitted signs, gestures, violent acts or by other means shall be punished with imprisonment for up to two years.

Portugal

Article 240: Religious, racial, or sexual discrimination
2 - Whoever in a public meeting, in writing intended for dissemination, or by any means of media:

a) incites violence against an individual or group of individuals because of race, color, ethnic or national origin or religion, or

b) defames or slanders an individual or group of individuals because of race, color, ethnic or national origin or religion, particularly through the denial of war crimes or against peace and humanity;

with intent to encourage or incite to racial or religious discrimination, shall be punished with imprisonment from 6 months to 5 years.

Switzerland
The denial of genocide and other crimes against humanity is an imprisonable offense under Swiss law.

SR 311.0 Swiss Penal Code, Article 261 Racial Discrimination

Whoever publicly, by word, writing, image, gesture, acts of violence or any other manner, demeans or discriminates against an individual or a group of individuals because of their race, their ethnicity or their religion in a way which undermines human dignity, or on those bases, denies, coarsely minimizes or seeks to justify a genocide or other crimes against humanity ... shall be punished with up to three years imprisonment or a fine.

C. Rejections of laws criminalizing Holocaust denial
Because of the First Amendment’s guarantee of free speech, Holocaust denial has not been criminalized in the United States. Freedom of expression is also a cornerstone of British society, therefore Holocaust denial has not been prohibited in the United Kingdom either. Italy approved a draft law that imposes jail terms for racially motivated crimes, but does not go so far as to prohibit Holocaust denial specifically, although this was Justice Minister Mastella’s initial aim. Italy has also rejected measures proposed by the European Union to impose EU-wide bans on Holocaust denial, on the basis of protecting freedom of speech. In Bosnia and Herzegovina, a Bosniak member of the Parliament proposed a draft law in 2007 to criminalize Holocaust denial and the denial of genocide and other crimes against humanity. However, Bosnian Serb MPs have been repeatedly opposed to such legislation. There is concern that such a law might be used as a weapon against their community. As one delegate explains, “[w]ar crimes are a sensitive issue in Bosnia and Herzegovina. I am not sure this law would actually lead to reconciliation and justice fulfillment.” He continues on to say that Bosnian Serbs “consider that [the law’s] adoption would cause disagreement and even animosity.”

Several countries formally banned Holocaust denial in the past but the denial has since been decriminalized. As discussed, the Hungarian Constitutional Court formerly struck down a law against Holocaust denial in 1992 on the grounds that doing so was incompatible with the right to free speech. Spain banned genocide denial in general until the Constitutional Court of Spain ruled that prohibiting denial was unconstitutional. Thus, as of November 7, 2007, Holocaust denial is legal, but justification of the Holocaust (or any other genocide, for that matter) is still an imprisonable offense.

Jacqueline Lechtholz-Zey graduated from the Early Entrance Program at California State University Los Angeles at age 19 in 2007. She earned her B.S. in Business Administration with an option in Business Arts-Prelegal. She also minored in Economics and Law and Society. In her year off before starting law school, she had the opportunity to travel to Israel. Her Birthright experience had a tremendous impact on her, and from then on she became even more dedicated to finding meaningful work and a way to preserve human life and dignity. Jackie began her legal studies at Loyola Law School, Los Angeles, in Fall of 2008, and in her second year she took Law and Genocide with Professors Michael Bazyler and Stan Goldman. In this course, she wrote her final paper on the propriety of Holocaust denial laws, a portion of which is published here. She is also Chief Articles Editor of the Entertainment Law Review at Loyola, and her article on extending copyright protection to fashion designs will be published in Vol. 30, Issue III.

Currently, Jackie is continuing her work in the field of Holocaust and genocide law by working for Professors Bazyler and Goldman as a research assistant. She is working on a book chapter about the kapo trials, as well as a piece on societal reactions to the Nuremberg trials. While very passionate about genocide prevention, Jackie is also a lover of art and has translated that interest into pursuing fashion law. Though vastly different fields of study, she hopes to find a way to reconcile these passions and ultimately make a meaningful contribution to society. She will graduate from Loyola Law School in May 2011.

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Armenian Jews and Israelis - Remembering and Denial

Yair Auron Lecture in Paris, 2010

The State of Israel continues to struggle against Holocaust denial on one hand, but participates in the denial of another genocide on the other. This most likely will damage the struggle against Holocaust denial in the future. The recognition of the Armenian Genocide by Israel is crucial since the denial of the Armenian Genocide is very similar to the denial of the Holocaust of the Jews. One might view this attitude as a moral failure. I am sure, a great many Jews, in Israel and in the world, will continue the struggle for the recognition of the Armenian Genocide by Israel and by the world. This is our obligation to ourselves as human beings; this is our obligation as Jews and as Israelis.

I will speak about the special connections between our two peoples, about Jewish memory and Armenian memory, about the attitudes of the State of Israel to the Armenian Genocide, and then conclude with some general comments about our common responsibilities, Jews and Armenians alike, regarding moral issues.

There are similar characteristics in the history of the Armenian and the Jewish peoples, who for long periods lived as ethno-religious minorities among majorities, different from and hostile to them. The genocides we, Jews and Armenians alike, have suffered have created another similarity and connection between us.

Let me demonstrate the special connections between our two peoples by recalling two examples which appear in my first book:.

In 1918, Shmuel Talkowsky, the secretary of Chaim Weizmann, the Zionist leader who became the first president of the State of Israel, wrote with the approval of Weizmann, an important article entitled "The Armenian Question from a Zionist Point of View."

"We Zionists look upon the fate of the Armenian people with a deep and sincere sympathy; we do so as men as Jews and as Zionists. As men our motto is "Homo sum; humani nihil a me alienum puto." "I am a human being. Whatever affects another human being affects me." As Jews our exile from our ancestral home and our centuries of suffering in all parts of the globe have made us, I would fain say specialists in martyrdom; our humanitarian feelings have been refined to an incomparable degree, so much so that the sufferings of other people – even alien to us in blood and remote from us in distance – cannot but strike the deeper chords of our soul and weave between us and our fellow-sufferers that deep bond of sympathy which one might call solidarity of sorrow.

And among all those who suffer around us, is there a people whose record of martyrdom is more akin to ours than that of the Armenians? As Zionists we have a peculiar question of principle. Zionism being in its essence nothing else than the Jewish expression of the demand for national justice, it is natural and logical for us to be deeply interested in the struggle for emancipation of any other living nation. … In our opinion, a free and happy Armenia, a free and happy Arabia, and a free and happy Jewish Palestine, are the three pillars on which will rest the future peace and welfare of the Middle East." This was written, I remind you in 1918. Unfortunately the policy of the State of Israel is very far from the principle raised by the Zionist movement 92 years ago.

Jewish memory and Armenian memory

Jewish history in the post-Holocaust era cannot be understood without an awareness of the profound and lasting influence of the Holocaust. The Second World War and the Holocaust on one hand, and the establishment of the State of Israel on the other, fundamentally changed the history of the Jews. Within a period of only a few years the Jewish People experienced its greatest disaster and witnessed the birth of the Jewish State and Jewish sovereignty.

In spite of the passage of time, Jewish attitudes to the Holocaust and its implications remain a crucial element in contemporary Jewish identity. From the point of view of Jewish and Israeli identity, and from an educational point of view, this raises a substantive question, which is relevant in my opinion also to the Armenians: Is it possible in the long term to foster an identity on the basis of elements which are fundamentally negative? Is not a balance called for in terms of positive Jewish elements?

Similarly, Armenian history in the post-genocide era cannot be understood without an awareness of the profound and lasting influence of the genocide on the first, second, third and now even fourth generation. In spite of the passage of time, and even maybe because of it, Armenian attitudes toward the genocide and its implications remain a crucial element in contemporary Armenian identity in Armenia and, even more, in Armenian communities all over the world. The genocide is a central component today in the attitudes of young Armenians – the third and the forth generation – when viewing themselves as Armenians, be it the U.S, Canada, Armenia, Australia, Israel or elsewhere.

Furthermore, for you Armenians, there is also the painful fact that your genocide is unfortunately not recognized. By denial you have been victimized twice. There is something sad, even depressing in the ongoing efforts of the Armenians and their supporters over 95 years to gain recognition from the international community and the many states where they are living in diasporas as a direct consequence, very often, of the genocide. During the past 20 years I have seen your struggle in Israel, as well as in many other Armenian communities across the world.

The attitudes of the State of Israel

I know how important for the Armenians is the attitude of the Jews, especially the attitude of the State of Israel, to their genocide. Concern with that position is raised again and again, I believe, because the State of Israel was populated by people who were victims of a similar genocide.

The State of Israel has officially refrained from relating to the Armenian Genocide. A combination of factors connected to Israel's relations with Turkey and concepts of the uniqueness of the Shoah have brought about an almost total absence of its mention by Israeli representatives. Government ministers - apart from a few such as Yair Tzaban, Yossi Sarid, Yossi Beilin and Haim Oron [all members of the same liberal party, Meretz - Ed.] - have systematically avoided the issue altogether by declining to participate in Armenian Memorial Day ceremonies.

Public debates and argument about that official attitude towards the Armenian genocide has erupted several times due to a number of events. In 1978, a film on the Armenian Quarter in Jerusalem was banned from being screened. In 1982, the Israeli Government intervened unsuccessfully to bar an International Congress on the subject of the Shoah and Genocide, pressing the organizers to eliminate lectures on the Armenian Genocide. In 1989, Israel was involved in preventing Congress from recognizing the Armenian genocide in the American calendar. In one way or another Israel and Jews were involved in the debate in the State also in1985,1987,1989, 2000, and 2007' and eventually in 2010. In 1990, the showing of "Armenian Journey", a TV film produced in U.S., was banned.

In this context I would like to mention two statements. One was made by Yossi Sarid, at that time the Minister of Education, on April 24, 2000 at the memorial gathering of the Armenian community in Jerusalem. Sarid sympathized with the pain of the Armenians over the denial of the genocide. He concluded his statement with a commitment to ensure that the Armenian Genocide be included in the Israeli secondary school history curriculum.

He stated:

"I would like to see a central chapter on genocide, on this huge and inhuman atrocity. The Armenian genocide should occupy a prominent place in this program, which does justice to the national and personal memory of every one of you, to the memory of all the members of your nation. This is our obligation to you, this is our obligation to ourselves."

Sadly nothing resulted from this courageous statement.

About a year later, on April 10, 2001, the Foreign Minster of Israel (now the president) Shimon Peres was quoted as saying "We regret attempts to create a similarity between the Holocaust and the Armenian allegations. Nothing similar to the Holocaust occurred. It is a tragedy but not a genocide". This statement was repeated by the Israeli Ambassador to Armenia Rivka Cohen in February 2002. These statements may be regarded as Israel's escalation from passive to active denial, from moderate denial to hard-line denial. An Armenian friend told me, rightly so, "I do not know of any enlightened politician in a democratic state that has ever made remarks such as these; You, the Jews, of all people."

The Armenian Genocide was raised in the Israeli Parliament around the month of April (the Armenian Memorial day) in 2007, 2008, and 2009 by a member of the Knesset, Haim Oron, who asked the Knesset to debate the issue, but the government opposed his request. The issue will be raised by Oron another time in the next weeks, without any chance to gain the majority.

Jewish and Israeli responsibility

It is clear to all those who are involved overtly and covertly in the controversies regarding Israel’s attitude to the Armenian Genocide – Jews, Turks, Armenians – and also to the rest of the world, that the issue has special moral significance. The fact that the country in question is of a people that was the victim of the Holocaust, and the unique problems that resulted, come to the fore .

The recognition of the Armenian Genocide by Israel is crucial in this regard, since the denial of the Armenian Genocide is very similar to the denial of the Holocaust of the Jews.

The State of Israel continues to struggle against Holocaust denial on one hand, but participates in the denial of another genocide on the other. This most likely will damage the struggle against Holocaust denial in the future. One might view this attitude as a moral failure. We have to remember that moral claims can have influence only if they are consistent.

Many observers estimate, in the case of the Armenians, that one act could radically change the long-standing denial of their Genocide: recognition of the Genocide by the United States or Israel. These are the pivotal countries that could bring about a Turkish recognition of the Genocide. There is a connection or even interdependence between the decisions of the two states. If one of them recognized the Genocide, sooner or later the second would do the same.

There is no doubt that morally speaking, Israel should be the first. Sadly, however, taking a realistic view of Israeli society and policy, this is not likely to happen in the near future.

Everyone would agree that Israel has no right to bargain with the memory of the Holocaust. But, even more, it has no right – by no means, in any circumstances, and much less so than any other country – to bargain with the memory of another victim group. And yet Israel did just that with the Armenian Genocide. Israel is contributing to the process of genocide denial and by doing so, it also betrays the memory and the legacy of the Holocaust, at least from my point of view.

The attitudes of Israel and its society towards the Armenian genocide and towards other cases of genocide have a unique significance. It is because of the unique history of our people: the victim during the Nazi period, we, Israelis are, unique third parties. Our attitudes towards Genocides – the attitudes towards genocides of the present and towards genocides of the past, is in many ways an example to the rest of the world that finds itself regarding the Israeli attitudes as a moral reference point.

Our common struggle for the recognition of the Armenian Genocide bears, at least for me, a major moral significance, and in our joint moral struggle we must be consistent. That should mean that every human and every people, but in my opinion especially we, Jews and Armenians, have a continuing obligation never again to be victims, of course never to be perpetrators, but also never to be bystanders.

I can assure you that I, and I am sure, a great many Jews, in Israel and in the world, will continue the struggle for the recognition of the Armenian Genocide by Israel and by the world. This is our obligation to ourselves as human beings; this is our obligation as Jews and as Israelis.

This lecture was delivered in Paris to the International Colloquiem of the Bureau Francais de la Cause Armeniénne - Armenia-Turkey: How to normalize relations? on April 14, 2010.

Yair Auron is a professor in the field of genocide and contemporary Judaism at the Open University of Israel and the Kibbutzim College of Education.

Professor Auron has published numerous books and essays, mainly on genocide and on Jewish identity in Israel and Europe. He is the author of books in Hebrew such as Between Paris and Jerusalem (Selected Passages of Contemporary Jewish Thought in France); Jewish-Israeli Identity; Sensitivity to World Suffering: Genocide in the 20th Century; and We Are All German Jews: Jewish Radicals in France During the 60s and 70s (also in French). His book The Banality of Indifference: Zionism and the Armenian Genocide was published in both Hebrew and English (Transaction Publishers, 2000). His book, The Banality of Denial: Israel and the Armenian Genocide was published in Hebrew and English (Transaction Publishers 2003).

Most recently, Auron is co-author of A Perfect Injustice: Genocide and the Theft of Armenian Wealth (Transaction Publishers, 2009) with Hrayr S. Karagueuzian. He is currently editing for the Open University a series of twelve books in Hebrew entitled Genocide, which includes theoretical volumes concerning the phenomenon of genocide as well as an analysis of case studies such as the Holocaust, the genocide of the Gypsies, the Armenian genocide and other historical and contemporary genocides such as Rwanda, Tibet and Indian population of the Americas. In this series, he published in 2009 Reflections on the Inconceivable: Theoretical Aspects of Genocide Studies, and in 2007 The Armenian Genocide: Forgetting and Denying. In 2006, his book Genocide: So That I Will Not Be among the Silent, was also published in this series. His book Israeli Identities: Jews and Arabs Facing Mirror and the Other in 2010 is published in Israel by Resling and in a few months will be published in English in the United States by Berghahn Books.

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