CONDEMNING HATE SPEECH

by Milen Radev

Is Europe even-handed in fighting genocide denial?

After nearly seven years of debate, the EU has agreed on common legal sanctions against racist and xenophobic offences, hate speeches and denial of war crimes.

But the conclusions are still somewhat vague and they failed to placate Eastern European countries who say that the denial of Communist crimes should also be criminalised. In the end the Justice and Home Affairs Council arrived at a low-level compromise. But the conference was criticised for its refusal to broaden the scope of genocide denial.

The framework decision stipulates that all EU members must amend legislation by 2009 to include penalties for two types of offence. The first is incitement to hatred on grounds of race, colour, religion or ethnic origin. The second is denial of crimes of genocide against humanity.

Countries vary considerably in their attitudes towards Nazi activists and Holocaust denial. Traditionally, Britain is the country that has most favoured safeguarding freedom of expression. The UK ensured that the public display of National Socialist symbols, like the swastika and SS runes, was not criminalised throughout the EU.

Germany, on the other hand, has long since banned the use of Nazi symbols and the dissemination of Third Reich propaganda. Germany also attempted, unsuccessfully, to get all EU states to criminalise Holocaust denial – already a punishable offence in nine members states. Instead, the conference arrived at a general clause criminalising conduct “publicly condoning, denying or grossly trivialising all types of genocide”. It explicitly stated that these are crimes “defined by reference to race, colour, religion, descent or national or ethnic origin”.

The issue is very controversial. Lithuania and Poland demanded that denying the atrocities of Communist regimes should also be categorised as a criminal offence. But most justice ministers overruled this argument, citing the definition of genocide as agreed in the Statute of The Hague's International Criminal Court and the 1945 Nuremberg trials. In other words, the current definition of genocide is rather lenient on Communist atrocities.

Representatives from the Baltic countries apparently refused to sign a document that omitted any reference to the crimes of Communism. Perhaps you can understand their reasons considering that the victims in question are thought to number around 100 million people.

Recently there has been increasing dissatisfaction in Estonia over the downplaying of crimes perpetrated during the Soviet occupation. There are similar sentiments and tensions in Poland and Hungary. The Soviet army perpetrated massive war crimes at the end of the Second World War, some of which only came to light recently.

Some countries were apparently unwilling to include this type of genocide in the list of offences out of a wish to avoid fresh conflicts with Russia. They recalled that Russia impeded the work of the Council of Europe Parliamentary Assembly (PACE) before it passed a resolution condemning Communism last year.

In the end a compromise was reached, agreed by all participants. It included a statement to be inserted in the final version of the decision. To some extent, it appeases the demands of East European countries. The statement offers hope that denying the crimes of the Communist regime could become a legal matter. Many Eastern European victims of Communism – as well as their relatives, human rights activists and public and political organisations - will welcome this change of heart. But it all depends on the detail.

The statement says that the framework decision is limited to crimes related to genocide and crimes against humanity committed on the grounds of race, colour, religion, descent or national or ethnic origin. But, although it does not expressly address the crimes of other totalitarian regimes, the council implicitly deplores all of these crimes.

The council also invites the commission to report back within two years on whether an additional instrument is needed in the EU to include the denial of genocide in general. Specifically, this addresses criteria separate from the above, such as the social status or political conviction of the victims. So there is now a prospect of introducing common ground that will balance the crimes of the 20th Century's two most powerful totalitarian regimes.

The council also decided that, within two years, the commission will organise a public European hearing on genocide and crimes against humanity. On behalf of the commission, the council emphasised the need for appropriate redress of injustices. If appropriate, it will also submit a proposal for a framework decision on these crimes.

Bulgaria's stance in Luxembourg is unknown. But the public was shocked by the Socialist government's recent decision to award privileges to so-called anti-fascist war veterans and guerrillas who seized power with a coup d'état in 1944. In 1944-1945 these veteran members of the Communist Party sank the country in a sea of violence and terror. The “legally ruled” death sentences against their political opponents amounted to 2,730. But, according to a report by Mark Ethridge, US President Harry Truman's envoy in Bulgaria, no fewer than 30,000 people were murdered throughout the country in a few months. The Bulgarian Socialist Party has accepted historical responsibility for the acts of its predecessor, the Communist Party, but the state has yet to adopt a formal position over the regime's crimes between 1944 and 1989.

These unresolved issues must be addressed. If the European Parliament acts in a decisive manner it may succeed in calming tensions. And the latest council decisions hold out hope that we're moving in the right direction.

Ideological considerations should not gain sway when assessing the crimes of totalitarian regimes from the recent past. We owe it to the victims of Communism to ensure that their lives are viewed as no less worthy than the victims of Nazism.

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