An Almost Interesting Moral Question

berlin holocaust memorial

So we were in Berlin last weekend, and we passed the Holocaust Memorial next to the Reichstag. Our 5 year old son was intrigued by the structure and went ahead of us and entered it. He then started to use it as a playground, a maze, to play hide-and-seek. Of course, I wasn’t seeking. He still had a lot of fun, but I had mixed feelings, as you can probably understand.

On the one hand, he was showing a lack of respect for the dead. This – given his age – is understandable though still jarring. I felt ashamed of him and of myself for allowing him to do what he did. On the other hand, maybe his display of innocence and vitality was an appropriate antidote to the burden of national guilt and cosmic morbidity expressed by the memorial (which is beautiful by the way).

National guilt is a concept that is becoming less and less relevant, although you sense that Germany still suffers from it. In addition, the morbidity of holocaust remembrance, although it expresses a fitting form of respect for the dead, is also in a sense an expression of respect for the perpetrators. It makes the perpetrators more important than they should be. Perhaps the Nazis were just a bunch of ridiculous losers which should be laughed at instead of morbidly feared.

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The Causes of Human Rights Violations (52): Not Enough Bias

If I count correctly, I have blogged about at least 12 ways in which our psychological or mental biases can lead us to violate other people’s rights:

  1. spurious reasoning justifying our actions to ourselves post hoc
  2. the role distance plays in our regard for fellow human beings
  3. the notion that what comes first is also best
  4. a preference for the status quo
  5. the anchoring effect
  6. last place aversion
  7. learned helplessness
  8. the just world fallacy
  9. adaptive preferences
  10. the bystander effect
  11. inattentional blindness, and
  12. stereotype threat

So it may come as a surprise that rationality – in the sense of the absence of biases that distort our proper thinking – can also cause rights violations. But when you think about it, it’s just plain obvious: whatever the irrational basis of Nazi anti-Semitism, the Holocaust was an example of rational planning; many people argue that Hiroshima and Nagasaki made perfect military sense; and others say the same about torture in the ticking bomb scenario.

However, the point is not just that rationality can be harmful, but that biases can be helpful. For example:

Take crime. The rational person weighs the benefit of mugging someone – the financial reward and the buzz of the violence netted off against the feeling of guilt afterwards – against the cost; the probability of being caught multiplied by the punishment.

But we don’t really want people to think so rationally because it would lead them to actually mug someone occasionally. It would be better if they had the heuristic “don’t mug people.” Such a heuristic is, however, irrational in the narrow economistic sense, as it would cause people to reject occasionally profitable actions. (source)

Given the low probability of getting caught for any crime, we would encourage crime if we would favor rationality over bias. If, on the other hand we could adopt a bias that people like us are highly likely to get caught (or, for that matter, another bias, such as the one that rich people deserve their wealth), then crime would go down.

All this is related to the question of whether false beliefs are useful for human rights.

More posts in this series are here.

What’s So Special About the Holocaust?

History has seen many genocides and large scale killings. Some of those resulted in more deaths than the Holocaust. So why is the Holocaust special? It’s special because it was the first and last example of the industrial production of corpses. It was, quite literally, a murder machine. The murders were not the actions of specific individuals who did what they did because of their identity, motives or pathologies. They were not like the brutalities of the Roman Emperor Nero, which were clearly his. Nor were they like the crimes of Saddam Hussein or any other identifiable criminal. In the case of the Holocaust, it was impossible to recognize an identity in the deed. The killers were impersonal, insignificant, loyal, conscientious and hardworking civil servants operating together in an organized, efficient, systematic and planned extermination, characterized by division of labor and the industrial production line. Everyone knew exactly what to do, and often that was a very small part of the process. Shared responsibility is often seen as diminished responsibility, and makes it easier to produce corpses. The detailed planning, organization and execution of the project sets the Holocaust apart from other genocides. Eichmann protested against spontaneous pogroms in the east, not because he was a humanitarian but because those unorganized interventions messed up his bookkeeping and made it difficult to count how many exactly were killed by the otherwise machine-like operation.

The Holocaust was not the action of an individual or a small group of people. Nor was it motivated by egoism, the will to power, money, hate, rage, revenge, sadism, war or the elimination of opposition. The victims were not guilty of opposition or even crime. The perpetrators weren’t motivated by self-interest (for example, the Nazis prohibited private confiscation of Jewish goods for personal use). Neither was it primarily the hatred of Jews that led the Nazis to try to exterminate them. It was the love of humanity – or better what they considered to be true humanity – and the need to protect it. The Holocaust wasn’t a war crime either and wasn’t part of the normal atrocities of war. It started well before the war and the German war effort suffered substantially from it: potentially useful labor forces were eliminated, soldiers and other means that could have been used in the war were diverted to the extermination effort etc. The Jews were murdered, not because that would have allowed soldiers to fight rather than guard prisoners, but because they were Jews. The extermination continued even in the final days of the war, when Germany was losing and all military resources should have gone to the war effort. And, finally, the purpose of the Holocaust wasn’t to instill fear. Normal state terror serves to scare the population and convince it to submit and to behave in ways that are acceptable to the rulers. Not in the case of the Holocaust. Fear had become useless because it couldn’t serve to guide actions and to steer away from danger. Danger would have found you anyway. Everyone knew that you were a Jew, and tactical maneuvering motivated by fear could have helped you escape only in very few cases.

Self-interest, power hunger, sadism, revenge or other utilitarian motives were seen by the Nazis as diversions from the genocidal operation that was undertaken for the benefit of mankind. As was the military self-interest of Germany’s success in the war. The project of extermination of the Jews and the protection of mankind was more important than the risk of a possible military defeat of Germany. Pity as well could not stand in the way of the demands of nature and history. The pleas of the victims were not heard and people convinced themselves of the historical and natural necessity of the Holocaust. Like pity, the taking of money from a victim as a bribe for letting him or her live was a betrayal of nature. Germans had to be the superhumans that they were destined to be, free from all that makes us ordinary humans: pity, self-interest, hate and the will to power.

The Holocaust wasn’t a crime. A crime is a deed that goes against social order and established law and that challenges the powers that represent social order. In this case, we have an atrocity that emanated from the state and that had become the moral and legal law. Murder had become a form of government. Evil no longer had to fight the Good, and no longer had to hide and to be hypocritical. Evil ruled. There was only evil. The world was without a horizon, without hope or salvation. Another reason why the Holocaust can’t really be called a crime is the fact that the perpetrators didn’t have criminal motives. They just carried out the verdict of nature and implemented the laws of nature. A deeper legality defined the actions of government. Murder had become the law of nature as well as the legal law and the law of morality.

More on the Holocaust here.

The Ethics of Human Rights (55): The Widening Circle of Equality

Allow me to engage in some simplistic historical generalizations. Although, like most us, I have abandoned my youthful illusions about the overall progress of humanity, I still think we’ve taken giant steps towards the moral ideal of human equality. See what you think about this:

  • During the 17th, 18th and 19th centuries, with the formation of the nation state in Europe and the development of the virtue of patriotism, citizens of those new states – and their copies elsewhere in the world – stopped acting as if members of neighboring tribes were somehow subhuman. Human equality, equal concern and equal rights were extended from the tribe to the nation.
  • After the end of the religious wars in Europe in the 16th and 17th centuries, and the gradual acceptance of religious liberty, adherents of other religions were no longer viewed as sinners who had to be destroyed, but rather as equal citizens enjoying the same rights.
  • From the middle of the 19th century (with the abolition of slavery) to the middle of the 20th (with the Civil Rights movement), non-whites gradually won equal rights.
  • During roughly the same period, workers and the workers’ movement convinced the other social classes that someone who has to sell his or her labor power for a living isn’t destined to an animal-like life in filth and misery.
  • From the beginning of the 20th century (with the suffragette movement) until the end of that century, women gradually won their equal place in many areas of society: politics, the labor market, etc. This movement, like all the previous ones, isn’t complete, but at least nowadays it’s rare to encounter the view that women are lesser men and should be relegated to the home.
  • The Holocaust, ironically, resulted in a dramatic acceleration of the emancipation of Jews.
  • The end of colonialism in the mid-20th century was the culmination of a long process during which westerners convinced themselves that the people they had colonized were not animals or subhumans but rather human beings like themselves.
  • The latest step forward in the history of human equality can be witnessed in our own time: gays and lesbians are now in the process of achieving what other outgroups have achieved before them.

So these are all consecutive steps during which the circle of people who are considered as “people like us” has been widened again and again. Sure, this is history painted with a very rough brush. I obviously don’t mean to say that the inclusion of new groups into the class of “equal human beings” has been complete or final after each step. There are many racists left after the Civil Rights movement; many intolerant religious fundamentalists after the acceptance of the right to freedom of religion etc. Also, there have been major steps backward: nazism came after a long period of Jewish emancipation; the end of slavery in the U.S. resulted in renewed racism etc. And neither do I mean to imply that prior to the abolition of slavery there wasn’t a single soul who believed blacks were equal human beings, or that there were no women considered as equal before the victories of feminism.

There’s no reason to believe that this inclusionary movement is about to stop. I can see at least three additional steps:

  • Our current treatment of criminals may come to be seen as unacceptable. There’s already a strong movement for the abolition of capital punishment, but I’m convinced that our whole system of criminal punishment is without justification. And I’m not just talking about overcrowding, prison rape, excessively long sentences etc. Read more here.
  • Migrants as well may become more accepted, to the point that an open borders policy will be generalized. Currently, we still condemn people to misery for no other reason than the fact that they are born in the wrong place, like older generations condemned people to slavery for no other reason than their skin color. The causes of this exclusion are an insufficient awareness of the benefits of immigration and lingering prejudices against outgroups.
  • And, finally, the inclusionary movement may one day lead to better treatment of animals: our current system of industrial meat production will then be considered barbaric.

Do I forget something?

Measuring Human Rights (17): Human Rights and Progress

We’re all aware of the horrors of recent history. The 20th century doesn’t get a good press. And yet, most of us still think that humanity is, on average, much better off today  than it was some centuries or millennia ago. The holocaust, Rwanda, Hiroshima, AIDS, terrorism etc. don’t seem to have discouraged the idea of human progress in popular imagination. Those have been disasters of biblical proportions, and yet they are seen as temporary lapses, regrettable but exceptional incidents that did not jeopardize the overall positive evolution of mankind. Some go even further and call these events instances of “progressive violence”: disasters so awful that they bring about progress. Hitler was necessary in order to finally make Germany democratic. The Holocaust was necessary to give the Jews their homeland and the world the Universal Declaration. Evil has to become so extreme that it finally convinces humanity that evil should be abolished.

While that is obviously ludicrous, it’s true that there has been progress:

  • we did practically abolish slavery
  • torture seems to be much less common and much more widely condemned, despite the recent uptick
  • poverty is on the retreat
  • equality has come within reach for non-whites, women and minorities of different kinds
  • there’s a real reduction in violence over the centuries
  • war is much less common and much less bloody
  • more and more countries are democracies and freedom is much more widespread
  • there’s more free speech because censorship is much more difficult now thanks to the internet
  • health and labor conditions have improved for large segments of humanity, resulting in booming life expectancy
  • etc.

So, for a number of human rights, things seem to be progressing quite a lot. Of course, there are some areas of regress: the war on terror, gendercide, islamism etc. Still, those things don’t seem to be weighty enough to discourage the idea of progress, which is still quite popular. On the other hand, some human rights violations were caused by elements of human progress. The Holocaust, for example, would have been unimaginable outside of our modern industrial society. Hiroshima and Mutually Assured Destruction are other examples. Both nazism and communism are “progressive” philosophies in the sense that they believe that they are working for a better society.

Whatever the philosophical merits of the general idea of progress, progress in the field of respect for human rights boils down to a problem of measurement. How doe we measure the level of respect for the whole of the set of human rights? It’s difficult enough to measure respect for the present time, let alone for previous periods in human history for which data are incomplete or even totally absent. Hence, general talk about progress in the field of human rights is probably impossible. More specific measurements of parts of the system of human rights are more likely to succeed, but only for relatively recent time frames.

The Causes of Human Rights Violations (21): Hate is Just a Word Away

It’s shouldn’t be surprising that there are so many human rights violations. Psychologists have shown how easy it is to induce cruelty, prejudice and hate. There’s for example the famous Milgram experiment. People seem to be very obedient to authority figures, even if they are told to be cruel to other people (giving them electric shocks in this case; the shocks were fake but the subjects didn’t know that). Milgram’s test suggested that the millions of accomplices in the Holocaust were violent and cruel because they were following orders. Authority made them do things that violated their deepest moral beliefs. If you see how much pain people are willing to inflict on another person they don’t even know, simply because they are ordered to by an experimental scientist, you can imagine how easy it is for real authority figures to “convince” them. Which doesn’t mean that ordinary perpetrators of genocide or other acts of cruelty are guiltless tools of central command.

(The Milgram experiment was recently “reproduced” in a game show on television).

A similar experiment is the Hofling hospital experiment. Nurses were ordered by unknown doctors to administer what could have been a dangerous dose of a (fictional) drug to their patients. In spite of official guidelines forbidding administration in such circumstances, Hofling found that 21 out of the 22 nurses would have given the patient an overdose of medicine, even though they were aware of the dangers.

Then there are the Asch conformity experiments. One subject and a series of fake subjects were asked a variety of questions about an image containing lines, such as how long is A, compare the length of A to an everyday object, which line is longer than the other, which lines are the same length, etc. The group was told to announce their answers to each question out loud. The fake subjects always provided their answers before the study participant, and always gave the same answer as each other. They answered a few questions correctly but eventually began providing incorrect responses. You wouldn’t expect a majority of people to conform to something obviously wrong, such as “line A is longer than line B” when it’s clear to the eye that the opposite is the case. However, when surrounded by individuals all voicing such an incorrect answer, many participants also provided incorrect responses. This kind of group pressure and tendency to conform can explain mob violence and government organized genocide.

In the Stanford prison experiment, also called the Zimbardo experiment, people were selected to play the roles of guards and prisoners and live in a mock prison in the basement of the Stanford psychology building. The participants adapted to their roles well beyond what was expected. The guards became authoritarian and effected draconian, sadistic and abusive measures which were even accepted by the suffering prisoners.

And, finally, there is the Third Wave experiment demonstrating the appeal of fascism for ordinary people.

These social psychology experiments show that government efforts to mandate and enforce cruelty, prejudice, racism, hate and even genocide fall on fertile grounds. Human nature’s dark side seems to lurk just below the surface, ready to come out, and merely awaiting the wink of the boss or the group. A negative dialectic quickly settles in between government prejudice and private prejudice.

The Ethics of Human Rights (20): Why Are There Genocides?

How can there be genocides? Genocides, and especially the holocaust, seem to be impossible to understand. They leave even the most astute thinkers perplexed. What is it that makes ordinary people, people who have never before engaged in violence or crime, turn on their neighbors and even friends in the most extreme way, without any apparent rational reason or provocation?

Hannah Arendt has written a lot about this, and she made the following observation while watching the trial of Eichmann in Jerusalem:

Eichmann committed his crimes under circumstances that make it well-nigh impossible for him to know or to feel that he is doing wrong. (source)

Under extreme circumstances people seem to lose their “moral compass”. They are

swept away unthinkingly by what everybody else does and believes in. (source)

This is what Heidegger called the “dictatorship of the They“: society, the general cultures or mores and the common practices force individuals to act in certain ways and undermine their independent judgment.

It is indeed difficult to tell right from wrong, independently, if almost everyone around you tells you that wrong is right. People’s sense of morality – or moral compass – is deeply influenced by the society they live in and grow up in. If you live in a racist society, chances are high you end up being a racist.

When this “dictatorship of the They” is purposefully cultivated by political elites, propaganda, indoctrination etc, and when, furthermore, it is combined with thoughtlessness or the willingness to give up on thinking – as was the case of Eichmann – then evil and genocide are just a small step away. Thinking, according to Arendt, makes it hard to engage in evil. Thinking is the silent dialogue with yourself. Since people generally want to be in harmony with themselves, it’s better to be the victim of an injustice than the perpetrator (in the words of Socrates), because the perpetrator has to live with the criminal. In this way, a conscience is a byproduct of thinking (Arendt), and the absence of thinking leads to immorality.

However, this explanation of evil, immorality and genocide is unsatisfactory, because it abandons moral responsibility and the possibility of moral and legal judgment. Arendt was acutely aware of this. If we again take the case of Eichmann, how can we possibly judge and convict him if his actions were the result of social pressure and his inability to think? Civilized legal systems as well as moral systems understand that the intent to do wrong and freedom of choice are necessary prerequisites for the commission of a crime.  No responsibility without mens rea: “actus non facit reum nisi mens sit rea”, “the act does not make a person guilty unless the mind be also guilty”.

It’s good to understand how morality is influenced by circumstances and culture, and how crime can result from education, society and thoughtlessness, but that’s not the whole picture. People aren’t just products of their environment. They can think and choose, except perhaps under the most extreme circumstances (such as torture). And I don’t think Eichmann lived in such extreme circumstances. This element of moral freedom is shown by the fact that evil people can arise from the best of circumstances.

Lies, Damned Lies, and Statistics (10): How (Not) to Frame Survey Questions

I’ve mentioned before that information on human rights depends heavily on opinion surveys. Unfortunately, surveys can be wrong and misleading for so many different reasons that we have to be very careful when designing surveys and when using and interpreting survey data. One reason I haven’t mentioned before is the framing of the questions.

Even very small differences in framing can produce widely divergent answers. And there is a wide variety of problems linked to the framing of questions:

  • Questions can be leading questions, questions that suggests the answer. For example: “It’s wrong to discriminate against people of another race, isn’t it?” Or: “Don’t you agree that discrimination is wrong?”
  • Questions can be put in such a way that they put pressure on people to give a certain answer. For example: “Most reasonable people think racism is wrong. Are you one of them?” This is also a leading question of course, but it’s more than simply “leading”.
  • Questions can be confusing or easily misinterpreted. Such questions often include a negative, or, worse, a double negative. For example: “Do you agree that it isn’t wrong to discriminate under no circumstances?” Needless to say that your survey results will be infected by answers that are the opposite of what they should have been.
  • Questions can be wordy. For example: “What do you think about discrimination (a term that refers to treatment taken toward or against a person of a certain group that is based on class or category rather than individual merit) as a type of behavior that promotes a certain group at the expense of another?” This is obviously a subtype of the confusing-variety.
  • Questions can also be confusing because they use jargon, abbreviations or difficult terms. For example: “Do you believe that UNESCO and ECOSOC should administer peer-to-peer expertise regarding discrimination in an ad hoc or a systemic way?”
  • Questions can in fact be double or even triple questions, but there is only one answer required and allowed. Hence people who may have opposing answers to the two or three sub-questions will find it difficult to provide a clear answer. For example: “Do you agree that racism is a problem and that the government should do something about it?”
  • Open questions should be avoided in a survey. For example: “What do you think about discrimination?” Such questions do not yield answers that can be quantified and aggregated.
  • You also shouldn’t ask questions that exclude some possible answers, and neither should you provide a multiple-choice set of answers that doesn’t include some possible answers. For example: “How much did the government improve its anti-discrimination efforts relative to last year? Somewhat? Average? A lot?” Notice that such a framing of the question doesn’t allow people to respond that the effort had not improved or had worsened. Another example: failure to include “don’t know” as a possible answer.

Here’s a real-life example:

In one of the most infamous examples of flawed polling, a 1992 poll conducted by the Roper organization for the American Jewish Committee found that 1 in 5 Americans doubted that the Holocaust occurred. How could 22 percent of Americans report being Holocaust deniers? The answer became clear when the original question was re-examined: “Does it seem possible or does it seem impossible to you that the Nazi extermination of the Jews never happened?” This awkwardly-phrased question contains a confusing double-negative which led many to report the opposite of what they believed. Embarrassed Roper officials apologized, and later polls, asking clear, unambiguous questions, found that only about 2 percent of Americans doubt the Holocaust. (source)

Human Rights and International Law (16): In Defense of Universal Jurisdiction

Universal jurisdiction, according to Wikipedia, is:

a principle in international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other relation with the prosecuting country. The state backs its claim on the grounds that the crime committed is considered a crime against all, which any state is authorized to punish. (source)

Universal jurisdiction departs from the standard principle that there should be some kind of connection between an act and the state asserting jurisdiction over it. In other words, the normal rule is that states exercise justice in relation to crimes committed on their territory or crimes committed by their nationals abroad. Indeed, this departure is the main criticism of universal jurisdiction: by allowing a state to prosecute individuals who are not its citizens, and who have committed crimes in other states, against people who are citizens of other states, we in fact allow this state to violate the right to self-determination of other states.

However, universal jurisdiction is nothing new, and most countries accept some kinds of universal jurisdiction. For example, few now oppose the right of Israel to judge Adolph Eichmann. The discussion, therefore, centers on the proper extent of universal jurisdiction. Human rights activists claim that states should be able to exercise universal jurisdiction in cases of genocide, crimes against humanity, torture, war crimes and slavery.

The reason behind this list is also the main justification of universal jurisdiction. These crimes affect all of us, the whole of humanity, and not just the immediate victims. Those who commit these offenses are hostis humani generis, enemies of humanity. And this has to be taken literally: these crimes are attacks on humanity, not just on individual human beings. The torturer dehumanizes his victim, but also himself. And he infects the society in which he operates. A society that allows torturers in its midst, can no longer be called a society. The same can be said of genocide and the other crimes in the list.

Universal jurisdiction is the act of reclaiming humanity. It is a statement by different parts of the world community, claiming that humanity does not accept such crimes. It is, therefore, an expression of humanity against those who attack humanity. And it’s a powerful expression of humanity precisely because it emerges from different parts of humanity, different countries and nations which all have an interest in the preservation of humanity.

I can imagine that some would object to all of this and would insist that crimes are committed against individuals, and not against an abstract entity such as “humanity”. But then I would invite those people to explain how they differentiate between a single anti-semitic murder and the holocaust. Or between a single case of an individual torturing another individual, and a case of state organized torture. I do believe that the concept of “crimes against humanity” makes sense, and that universal jurisdiction is a good way to respond to those crimes, maybe not from a purely legal point of view (universal jurisdiction isn’t the most effective jurisdiction) but from a human point of view.

Limiting Free Speech (2): Holocaust Denial

In the introductory post of this series, I summarized the dangers of limiting free speech while at the same time granting that such limits are necessary in some cases. One case is Holocaust denial, or Holocaust revisionism as it is referred to by its supporters.

What is Holocaust denial?

Holocaust deniers only rarely claim that the Holocaust didn’t take place or that no Jews were killed by the Nazis. Rather, they claim that either or all of these facts are lies:

  • The Nazi government of Germany had a policy of deliberately exterminating the Jews
  • Over five million Jews were systematically killed by the Nazis
  • The extermination was carried out with tools such as gas chambers.

Instead of outright negation, there is trivialization. Moreover, Holocaust denial claims that the holocaust is a deliberate Jewish conspiracy created to advance the present-day interest of Jews and Israel.

Most historians and scholars reject Holocaust denial as a pseudo-science that fails to respect the rules of historical evidence and that is grounded in hatred rather than the pursuit of knowledge. Holocaust denial is characterized by the distortion or falsification of historical documents and the selective use of sources.

Holocaust deniers are mainly far-right, neo-nazi types and antisemites, but there are also far-left deniers, islamic deniers etc.

How can we justify the limits on free speech inherent in laws prohibiting Holocaust denial?

Nothing that went before is in itself sufficient to justify laws limiting the right to free speech of Holocaust deniers. According to the rules set forth in the introductory post in this series, one has to show that some rights are violated by Holocaust denial, and that this violation is worse than the violation of the rights of Holocaust deniers which would result from Holocaust denial laws.

There are a few possible kinds of justification:

1. Antisemitism

There is antisemitism inherent in Holocaust denial, although it is not necessarily obvious or immediately apparent. It is often implicit rather explicit antisemitism: the Holocaust is an invention of Jews, a tool to make them look like victims instead of criminals, and thereby gaining some sort of immunity for their vicious acts. Or a tool to make financial claims on Germany.

However, the mere antisemitism of Holocaust denial is not a sufficient reason to prohibit it. Antisemitism as such should enjoy the protection of the freedom of speech. Only when antisemitism explicitly incites to violence against or discrimination of Jews can it be forbidden. And Holocaust denial is rarely this explicit.

The offensive nature of Holocaust denial does undoubtedly inflict harm on Jews, especially the survivors of the camps, but no harm in the sense of rights violations. One could claim that Holocaust denial perpetuates and encourages antisemitism and therefore increases the likelihood of antisemitic attacks on individual Jews. But it would be a tough job establishing the causal links.

One could also claim that Holocaust denial perpetuates negative stereotypes in society, and thereby contributes to the marginalization of Jews. Again, difficult to prove.

In general, Holocaust denial is such a marginal phenomenon that it’s difficult to claim that it makes a substantive contribution to violence and discrimination. But in some countries or subcultures, the balance can be different.

2. Offensive speech

Justifying the prohibition of Holocaust denial merely on its offensive nature, would open the floodgates to a massive number of possible limitations of free speech, especially in the field of blasphemy. This would lead to an excess of political correctness and ultimately to “thought police”.

3. Libel

A justification based on the harm to the reputation of Jews would make Holocaust denial similar to libel. However, libel is traditionally designed to protect an individual’s reputation, income, and honor against abusive and harmful accusations. I fail to see how Holocaust denial can be directly harmful to individual Jews. Group defamation is highly controversial and could lead to the same problems cited in the previous point.

4. Democratic self-defense

Sometimes limits on rights are necessary to protect a rights-supporting community against anti-democrats who use democracy against democracy. A democracy is a particularly vulnerable form of government. The freedom it delivers can easily be misused by those who want to take it away. Anti-democratic and illiberal forces are free to use rights, freedoms and democratic procedures for the promotion of tyranny and oppression. The purpose of many holocaust deniers is the resurrection of Nazism, and a condition for this resurrection is the denial of the Nazis’ greatest crime. There can be no hope for acceptability of far-right policies as long as the Holocaust stands in the way. German Nazism, of course, is notorious for the way in which it misused the imperfect Weimar democracy.

Seen in this light, the criminalization of Holocaust denial is a self-defensive act of democracies in their struggle against extremism. Holocaust deniers use the freedoms of democracy in order to overthrow it. One cannot reasonably force democracies to abstain from self-defense. No system can be required to cherish the seeds of its own destruction.

To the extent that Holocaust deniers aim to overthrow democracy, they are hardly in a position to complain about limitations of the freedoms they would like to destroy:

One has no title to object to the conduct of others that is in accordance with principles one would use in similar circumstances to justify one’s actions towards them. A person’s right to complain is limited to violations of principles he acknowledges himself. John Rawls

You should not ask something for yourself that you are planning to deny to others. This, according to me, is the strongest justification of Holocaust denial laws, even in those countries were the revival of Nazism of highly unlikely. It may be unlikely precisely because of measures such as Holocaust denial laws.

5. The defense of Israel

Some extreme Islamists use Holocaust denial in their campaign against Israel. They hope that when they negate the Holocaust, they can remove one of the moral foundations of the state of Israel (as a refuge for the survivors). This negation, they hope, can help their efforts to destroy Israel.

However, whereas this justification may be useful in some circumstances, it is difficult to use it for an outright, worldwide prohibition on Holocaust denial since Holocaust denial outside of the Middle East can hardly be linked to the possible destruction of Israel.

6. The special case of Germany

In Germany, there may be an additional justification available. Holocaust denial laws can there be seen as part of a package of reparative justice, a kind of “sorry” issued by the state, a public acknowledgment of responsibility.

7. The interest of historical truth

Whereas truth is very important, it seems wrong to use laws to enforce the truth. Truth should be based on proof and sound argument, and using the law to punish “lies” only encourages those who believe the lies. They, and others as well, will think that there must be something wrong with the “truth” if it needs the law for its protection.

Conclusion

There is a case to be made for Holocaust denial laws, but one should be very careful and limit the prohibitions to cases and circumstances that really require them. Not all forms of Holocaust denial is equally pernicious, and not all circumstances are equally dangerous. Moreover, one should take into account the counterproductive effects of stigmatizing a certain group: persecution by the law can encourage them, can increase the number of sympathizers, and can give them more publicity than they would otherwise receive. Ignoring Holocaust deniers rather than criminalizing them could often be the most successful strategy. And some justifications should be avoided because they can create a dangerous precedent.

Countries with laws against Holocaust denial

Holocaust denial is explicitly or implicitly illegal in 13 countries: Austria, Belgium, Czech Republic, France, Germany, Israel, Liechtenstein, Lithuania, Luxembourg, Poland, Portugal, Romania, and Switzerland (source: here or here).

Human Rights and International Law (9): Impunity

I deeply hope that the horrors humanity has suffered during the 20th century will serve us as a painful lesson, and that the creation of the International Criminal Court will help us to prevent those atrocities from being repeated in the future. Statement made by Luis Moreno-Ocampo on the occasion of his election as first Prosecutor of the International Criminal Court by the Assembly of States Parties in New York on 22 April 2003.

Many gross violations of rights such as genocides, state oppression, torture etc. are committed by the political class of a country, and in particular by the political leaders. And if they don’t personally dirty their hands, they organize, order, facilitate and protect the executors. They view rights violations as a necessary element in the exercise of power.

For many reasons, legal and practical, these leaders often enjoy impunity, meaning literally “without punishment”. The “Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity” describes impunity in this way:

The impossibility, de jure or de facto, of bringing the perpetrators of violations to account ’96 whether in criminal, civil, administrative or disciplinary proceedings ’96 since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims. (source)

Reasons for impunity

Here are some of these reasons for impunity:

1. Self-Preservation

A first reason for impunity is the fact that the perpetrators are in power and have subjected the justice system and the judiciary to their command. They have, in other words, destroyed the division of powers or failed to institutionalize it. Because they are so powerful, most of them die in the saddle and only have to fear a Higher Judge.

But some do not and end their reign (or see it ended) during their lifetime. But even then they manage to protect themselves. If they still have enough influence to stay in the country, they can either negotiate immunity or amnesty (take the case of Pinochet), or they have enough friends in high places to dispense with such formalities (take Deng Xiaoping, the butcher of Tienanmen).

2. The solidarity of tyrants

If their exit from power is somewhat acrimonious, they may have to flee to another country where a friendly dictator will do everything to avoid a precedent of justice and will harbor the criminal until the end of his days (take Karadzic). How beautiful solidarity can be.

3. The law

Sometimes the national justice system can’t help, and at other times the international solidarity of tyrants hinders an otherwise able and willing justice system. Also the law can come to the rescue. State functionaries (sometimes even former functionaries) claim to enjoy legal immunity in national or even international law for acts carried out while in office. Individual perpetrators hide behind their states. Heads of state or leading functionaries are said to represent their states and all their actions are “acts of state”, and therefore the state is responsible for these acts.

Lower ranking officials are not responsible either, because they can hide behind the “Befehl ist Befehl” principle. They cannot be punished because they follow orders from people who themselves are not responsible either.

Only by transcending these principles of immunity and command can individuals be punished for violations of human rights and can human rights be protected (punishing states is very difficult and is not fair because it is a kind of collective punishment.) This has been the main achievement of the Nuremberg Tribunal. The Nuremberg tribunal was the first tribunal to judge the crimes of political leaders and to refuse to grant them immunity for war crimes and gross violations of human rights such as the holocaust. The charter of the fledgling International Criminal Court (ICC) also rules out defenses based on immunity:

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person. (source)

Charles Taylor of Liberia was indicted in 2003 while still in power, and is now in the dock in The Hague. Milosevic went before him and others will follow. But they have to be extradited. Political leaders will not extradite themselves, and after they leave office they will continue to enjoy some protection at home. Taylor was arrested because he first agreed to accept exile in Nigeria.

Moreover, countries have to sign up to the ICC treaty. Zimbabwe for example has not signed up, so Mugabe will not have his day in court, unless there is a referral to the court by the Security Council. Sudanese President Omar al-Bashir is now indicted on charges of genocide, crimes against humanity and war crimes over the slaughter in Darfur, but will probably remain comfortably in his seat.

Some claim that the possibility of being handed over to the ICC after the end of their reign, forces tyrants to cling to power and use ever more violent means to do so. But then you could as well grant amnesty to all hostage takers out of fear that they would otherwise do more harm to their hostages.

4. Institutional problems

The impunity of ordinary civil servants or members of the police is often the consequence of under-developed state institutions. Judiciaries that are malfunctioning or corrupt, policemen who are underpaid or have a lack of training etc.

Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations. (source)

Data

The Committee to Protect Journalists has an impunity index in which countries are ranked according to the number of murder of journalists that are unresolved. More statistics are here.