|
EXPLANATORY MEMORANDUM
TO
A BILL PROPOSED BY DEPUTY HUIZINGA-HERINGA TO THE DUTCH PARLIAMENT ON PENALISING OF NEGATIONISM
__________________________________________________________________________
Translated into English by: Arsen Nazarian
Commissioned by: 24 Arpil Committee.
The Hague, December 2006
The Second Chamber of The Netherlands
___________________________________________________________________________
Sitting Year 2005-2006
___________________________________________________________________________
30 579 Proposal of a law by deputy Huizinga-Heringa on making punishable the denial, gross trivialisation, approval
or justification in public of a genocide or a crime against humanity with the intention of inciting hate, discrimination
or violence against people or their property on the ground of their race, religion or philosophy of life, their
gender or hetero- or homosexual orientation, or when it is presumed, or reasonably can be presumed, that as a result
of such an act or treatment a group of people would be insulted on account of their race, religion or philosophy
of life or due to their sexual orientation (penalizing of negationism).
NUMBER 3 EXPLANATORY MEMORANDUM
CONTENT
1. Introduction
2. Main Points of the proposed bill
3. Present Legislation
4. Penalizing Negationism
5. Other Countries
6. Summary
7. Genocide and Crimes against Humanity
8. Scientific Debate
9. Weighing against other Constitutional Rights
10. Protocol of the Treaty concerning Penalization of Treatment of Racist or
Xenophobic Nature, Carried out via Computer systems.
11. Illustration per Article
1. Introduction
The denial, approval, justification or trivialisation of genocide or a crime against humanity is a phenomenon that
quite often raises its ugly head in the society and provokes the usual commotion associated with it. Almost immediately
after the end of World War II news appeared in which the massive persecution of Jews in Nazi Germany was denied
or was played down as unimportant. These voices are being heard up to this day. Also in respect of other very grave
happenings, we hear similar denials or trivialisations. Think for instance of the Armenian Genocide, the extent
and severity of slavery or justification of the crimes committed by communist regimes against their peoples.
The denial, trivialisation, approval or justification of genocide or a crime against humanity is defined as revisionism.
This term is not precise enough. (Historical) revisionism is in itself nothing more than investigation by historians
with the intention of rewriting the history on the basis of newly discovered facts with the help of information
that contains less distortion or with the help of more accurate information. In this respect, historical revisionism
is a generally accepted goal of the historical studies.
Contrary to this type of (historical) revisionism, with clear scientific objective, one could rather speak of negationism
when it concerns consciously denying or grossly trivialising the historical events. This last term will be further
used in this explanatory note and will not refer only to denial of the crimes of Nazi Germany, but also denial,
trivialisation, approval or justification of genocide and crimes against humanity in general.
Another goal of negationism can be to make certain extremist views and tendencies (right extremism, left extremism,
Muslim extremism) a legitimate political viewpoint. If genocide or a crime against humanity that has been committed
in the name of an extremist idea allegedly 'has not taken place, or has not taken place in such an extent', then
evidently one could say that that extremist idea is not so reprehensible after all. This way a climate can be created
where discrimination as such is or becomes an issue open to discussion.
What makes negationism so grave is that its expressions (denial, trivialising, approval or justification) generally
speaking are made consciously and willingly. The culprits know fully well that the crimes they deny have actually
taken place, but they nevertheless and consciously deny them. For those directly involved such as the victims or
their survivors, the issue becomes all the more painful. While ignorance can be painful enough, a deliberate distortion
of facts can only be considered as a particularly discriminating act.
The sectors of population which are the object of denialist utterances are directly affected by denial (trivialization
etc). Genocide or crimes against humanity are committed, because the people against whom these acts are carried
out, are considered to belong to a certain sector or group of the population. Therefore, the denial, trivialization,
approval or justification is deeply hurtful to the victims and their surviving relatives.
In general negationist expressions and utterances are not self-serving, but they are made deliberately with a definite
goal, namely, to disregard/ offend/discriminate against / belittle the victims of the crimes against humanity or
their survivors.
The circumstance in which negationism is coupled with, or is suggested with such intentions, makes the negationist
utterances in principle punishable by law. In other words, it is especially the combination of the conscious distortion
of facts and the intended goal (disregarding/offending/ discriminating/trivialising and marginalising of the victims
of these crimes against humanity) that makes the negationist expressions and utterances a grave fact, which must
in principle be regarded as punishable.
It is this circumstance that this initiator considers decisive against a possible counter-argument that although
negationism is indeed morally reprehensible and absurd, but that this cannot be considered
sufficient ground for making it explicitly punishable (1). We should take into consideration that if the negationist
utterances are not effectively combated, they can lead to the creation of a climate where the constitutional rights
and freedoms of the people can in fact be endangered.
The goal of this initiative is to provide and explicit ground for making negationist utterances punishable.
It suits a democratic constitutional state system to show also on a legal level sufficient preparedness to counter
expressions which are inherently anti-democratic and which are meant to destroy the rights and freedoms of others
(2).
This bill is not intended to restrict the freedom of expression (the right of 'free debate'). People should be
able to debate and discuss differing views. The debate can, and should, be carried out, where necessary, to its
sharpest point. This applies not in the least degree to scientific debates which paragraph 8 further elaborates.
In a society where individuals, viewpoints, religions and philosophies of life differ from one another, tolerance
and readiness for dialogue are fundamental values in their own right. This point is nonnegotiable. Anyone who wishes
to be part of the Dutch social life and the Dutch constitutional system should at least show such tolerance towards
those who think differently. But, tolerance and readiness for dialogue are by their nature a two-way traffic. They
bring with themselves obligations when it concerns implementation of freedom rights. The international human rights
documents are clear on this point (3).
This initiator thus finds here a further ground - all the more so at this time when "communis opinio"
(general feeling/view) is that thorny issues should be subject to discussion - to make it clear that negationist
utterances that evidently are ill-intentioned and are intended to insult and discriminate, to instigate hate, to
sow violence and discord, should be considered impermissible. The penal law as the ultimate remedy should therefore
not lag behind.
2- Main Lines of the Proposed Bill
This bill is intended to make in explicit terms negationist expressions that are made public intentionally punishable.
The bill is in keeping with Article 137d, paragraph 1 of the Penal Code where publicly inciting hate or discrimination
against people by word of mouth, in writing or in picture, or acting violently against people or their goods on
the ground of their race, religion, philosophy of life, their gender or hetero- or homosexual orientation, are
made punishable. Besides, there is a connection between Article 137c and Article137e of the Penal Code.
The supplement, in the form of a new Article137da, provides for the criminalizing of the denial or grave trivialization,
approval or justification of genocide or crimes against humanity publicly, (orally, in writing, in picture or via
internet) with the intention of inciting hate or discriminating against people or acting violently against persons
or their properties on account of their race, religion or philosophy of life, their gender or their hetero-homosexual
orientation. The second paragraph of the proposed article makes one subject to punishment when he commits such
acts while he knows or should reasonably have suspected that by his act he insults a group of people because of
their race, religion or philosophy of life or their hetero- or homosexual orientation. Genocide, crimes against
__________________________________________
(1) See among others R. de Winter, De Auschwitz-Lüge na 50 jaar, strafwaardig? (The Auschwitz-Lüge after
50 years, still punishable? (not translated into English - tr.), NJB 1995, pages 653-859 and F. Janssens, De ontkenning
van Auschwitz en de strafwet (The Denial of Auschwitz and the Penal Law (not translated into English - tr.)), DD28
(1998), Afl. 6, blz. 565 ev. According to De Winter and Janssens, public debate and adequate education and information
are better instruments to combat such views and conceptions.
(2) Compare with Article 17 of the ECHR. (European Convention on Human Rights).
(3) Thus the Universal Declaration of Human Rights, the BUPO Treaty and the European Convention of Human Rights
place responsibility not only on states, but also on the citizens of the participating parties when realisation
of the full implementation of freedom rights at stake.
humanity and war crimes are defined in Articles 6 and 7 of the Rome Statute in the framework of the International
Criminal Court.
The proposed provision presupposes an explicit connection therewith.
The bill, as far as it concerns the criminalizing of negationist utterances and expressions via internet or other
electronic networks, is seen as the actual fulfilment of the supplementary Protocol to the Treaty concerning Combating
Punishable Acts Related to Electronic Networks regarding treatments of racist or xenophobic nature performed via
computer systems (4) (1) (hereinafter called: Protocol). The idea here is that each party of the Protocol, takes
legislative and other measures to combat spreading in public of racist and xenophobic material via a computer system
(Article 3 of the Protocol). This penalization can be extended to include the denial, gross trivialization, approval
or justification of genocide or crimes against humanity (Article 6 of the Protocol). Paragraph 10 further elaborates
the Protocol.
Finally, a reference should also be made to the guideline decision on establishment of the (rules of) European
writ of arrest dated 13 June 2002 (2002/584/JBZ) with regard to regulations concerning the procedures of extradition
between EU member states (5) (2). The list of punishable acts to which this guideline decision applies includes,
among others, racism and hatred against aliens. By the adoption of the proposed bill, it will be clearer which
acts are to be understood as racism and xenophobia.
3. Current Regulations and Jurisprudence
Notwithstanding the absence of an explicit Dutch legislation penalising negationism, the Supreme Court of the Netherlands
has in 1987 pronounced that the denial of the Holocaust in certain circumstances falls under the prohibition of
discrimination (6) (3).
In the beginning of nineties, Siegfried Verbeke, a notorious holocaust denier (7) (4), was condemned for spreading
of material in which the Holocaust was denied. Verbeke had sent such unsolicited materials to schools, libraries
and private persons with Jewish-sounding surnames. The LBR (National Bureau for Combating Racism), the Anne Frank
Foundation, the CIDI (Centre for Information and Documentation on Israel) and the Consulting Organ of the Jews
and Christians decided to take action against this. In a summary proceeding, the court prohibited further spreading
of the material. In 1995, Verbeke was condemned on account of insulting by virtue of Article 137c Penal Code and
on account of spreading discriminatory statements by virtue of Article 137e of the Penal Code. The Supreme Court
confirmed the judgment of The Hague Court, dated 2 May 1996, whereby it can be concluded that the denial of the
Holocaust in principle goes against the prohibitions on discrimination (8) (5).
The Court of Appeal of Antwerp (Belgium), on 14 April 2005, condemned Verbeke on similar grounds to a one-year
prison term and a fine of 2500 euro on account of the denial of the genocide carried out by the Dutch National-Socialist
regime during the WW II.
Other judicial pronouncements have found that in certain circumstances it is even possible to ban a
political party under the present legislations (9) (6).
__________________________________________________
(4) (1) Trb. 2005, 46, c.q. 2003, 60.
(5) (2) See Parliament paper 29 042 (Extradition Act).
(6) (3) HR 27 October 1987, NJ 1988, 538.
(7) (4) For years Verbeke used to spread written materials in which Holocaust was denied. Together with his brother,
he led the organisation Free Historical Research (VHO). The organisation disseminates pamphlets and books in Belgium
and the Netherlands containing the so-called negationist ideas. The organisation also does this via Internet.
(8) (5) HR 25 November 1997, NJ 1998, 261, where it was found that the denial of Holocaust should be considered
as insulting in the sense of Article 137c of the Penal Code, because the condemned party had suggested that the
Holocaust myth had locked the Jews in a "psychic ghetto"
(9) (6) In 1997, the CP '86 (Centrum Party '86) was irreversibly condemned as a criminal organisation, which had
made itself culpable by constantly instigating hate and discrimination against groups of people on account of race.
At the request of the Public Prosecutor, the party was declared banned and dissolved by the Amsterdam District
court (Court of Amsterdam, 18 November 1998, NJ 1999, 377).
4. Penalising of Negationism
Notwithstanding what the law has already provided for, the explicit regulation of penalisation of public negationist
expressions is something that is pleaded by different parties.
The Meijers Permanent Commission (10) (1) has in a number of advices with regard to the draft guideline decision
to combat racism and hate towards aliens (11) (2) urged to codify the existing jurisprudence of the Supreme Court
of the Netherlands with regard to making the denial and trivialisation of genocide, crimes against humanity and
the Holocaust punishable.
In the Council of ministers of Justice and Internal Affairs, no agreement has been reached over the draft "guideline
decision" with regard to combating racism and hate towards aliens. However, the cabinet has in different occasions
informed the Parliament that it would be prepared to approve the draft, which - as far as relevant for the proposed
bill - like the Protocol, contains a separate provision for penalisation of the public denial, gross trivialisation
and/or exculpation of genocide and crimes against humanity, as well as the denial and gross trivialisation of the
Holocaust (article 1, c and d) (12) (3).
The National Bureau for Campaign Against Racial Discrimination (LBR) in a letter dated 25 November 2002, addressed
to the Minister of Justice, concerning the same draft EU guideline decision, made it clear that it is desirable
that publicly expressed insults or threats with racist or xenophobic motives should be made punishable by law in
all EU member states and has expressed the opinion that, what concerns the Netherlands, the legislative regulation
making this punishable should have preference over the remedy that the jurisprudence in this regard offers at this
moment. This standpoint of the LBR has been expressed against the background of the wish to combat racism and hate
against aliens at European level as well.
In the introduction to this memorandum, it was already mentioned that especially the cases where negationist expressions
are not, generally speaking, self-serving, but are meant to disregard/ insult/ discriminate/ marginalize the victims
of the crimes against humanity or their survivors, provide the ground for explicit penalization of negationism.
The current legislation needs to be supplemented in that sense.
5. Other Countries
The Belgian law stipulates a prison term from eight days up to one year for the denial, trivialization, justification
or approval of the Genocide carried out by the German National-Socialist regime during WW II. Right now, broadening
of the scope of the Belgian legislation in conformity with the present bill is being prepared. The legislation
in Austria concerns the denial, trivialization, justification or
approval of the genocide carried out by the German National-Socialist regime during WW II, provided that such expressions
are accessible by the public. Under the same punishability falls negationism with regard to other crimes against
humanity. The punishment criterion is stronger than in Belgium, namely, 1 to 20 years of imprisonment. In Switzerland,
it is punishable by law to deny, to justify or to trivialize with discriminatory intent genocides or other crimes
against humanity.
____________________________________________
(10) (1) Permanent Commission of the Experts in International Penal Law for Aliens and Refugees, in advices for
the JBZ-Councils of 28 and 29 November 2002, of 27 and 28 February 2003 and of 2 and 3 December 2004.
(11) (2) 2001/0270 (CNS).
(12) (3) See among others Parliament paper 23 490, 364, pages 5/6 and 23 490, 237, page 5.
France makes punishable disputing the occurrence of crimes against humanity that have been committed by members
of a criminal organization with a penalty of one month to one year of deprivation of liberty. To compliment this
and in supplementation of an earlier explicit recognition of the Armenian Genocide, a draft bill is now pending
in the French parliament where the denial of the Armenian Genocide is made punishable. Possibly sometime in the
autumn of the year 2006 it will be put to vote.
Germany punishes the denial, trivialization or approval of the actions of the National-Socialist regime, publicly
or in private, with a penalty of up to five years imprisonment.
In Spain, a freedom-related punishment of one to two years hangs on the denial or trivialization of genocide as
well as on supporting regimes or institutions, which advocate genocide.
Finally, Luxemburg has made a legislation explicitly forbidding denial of the Holocaust.
6. In Summary
1. The circumstance in which negationism is coupled to, or is prompted by, reprehensible objectives, such as discriminatory
treatment of persons or groups of people, warrants a punishment for public negationist expressions. Individuals
and groups of people deserve protection against such acts.
2. A strong and solid democracy should be able to react effectively against negationist expressions, which aim
at providing a platform to extremist political views and movements.
3. An explicit law making negationism punishable is a strong signal both to possible victims and potential perpetrators.
4. Several European countries are ahead of the Netherlands on this issue.
5. The Protocol for making racism and hate against foreigners via computer systems punishable contains the explicit
possibility of making negationism punishable. This initiator considers the mentioned possibility as a stimulus
(see also paragraph 10) to have the foregoing adopted in the Dutch penal Code.
7. Genocide and Crimes against Humanity
The proposed penalisation of the open and intentional negationism is related to Articles 6 and 7 of the Statute
of Rome concerning the International Criminal Court (ICC), which, in their turn, originate from Article 6 of the
Statute of International Military Tribunal (IMT) created by the Treaty of London on 8 April 1945. In the Statute
of the ICC, genocide and crimes against humanity are defined in Articles 6 and 7, respectively.
Genocide (13) (1) includes a series of crimes such as murder or mutilation with the aim of destroying a whole section
of the population. The term is generally used, among others, to refer to the organized murder of 6 million Jews
and hundreds of thousands of gypsies, homosexuals and invalids during the WW II by Nazi Germany. http://nl.wikipedia.org/wiki/_Wereldoorlog.
In the year 1951, the United Nations adopted a convention against genocide (14) (2).
According to Article 6 of the Statute of the ICC, by genocide it is meant systematic murder, causing of serious
harm and injury, frustrating of living conditions in order to bring about the actual annihilation, taking of measures
to prevent births and the forcible transferring of children from one section of population to another; all this
with the aim of extermination of one nation, race, people or
_____________________________________________
(13) (1) The term Genocide is coined by the Polish jurist Raphael Lemkin in his book named: Axis Rule in Occupied
Europe, published in 1944 in United States. It is a combination of the Greek words: genos (race, nation or people)
and cide (murder).
(14) (2) Convention on Prevention and Punishment of the Crime of Genocide.
religious group, in whole or in part (15) (3).
The term crimes against humanity should not be understood as crimes against the 'human nature', where compassion
and rationality fit in, but should be seen as acts and treatments that touch upon human dignity.
According to Article 7 of the Rome Statute of the ICC, one talks about "crimes against humanity" if a
series of atrocities such as murder, imprisonment, enslavement, deportation, torture and rape, are committed as
part of a widespread or systematic attack upon a certain section of population. Also, Article 6 of the Statute
of the International Military Tribunal under the Treaty of London defines the term crimes against humanity (crimes
against humanity) (16) (1).
Besides, it should also be mentioned that the Law concerning International Crimes put into force in the year 2003
also contains defining regulations from which one can infer what by genocide and crimes against humanity, respectively,
is meant. The relevant articles 3 and 4 of this law are for that matter grafted in the comparable provisions of
the Rome Statute of the ICC.
In certain circumstances, there may be ambiguity about an occurrence as whether or not it falls under the notion
of genocide or crime against humanity in the meaning of the Rome Statute, despite the clear definition in itself
of the articles 6 and 7 of the named Statute and the comparable provisions in other regulations. Concerning the
question whether a negationist expression falls under the scope of Articles 6 and 7, one can find a point of reference
in the ICC jurisprudence itself as well as other Criminal Courts such as Yugoslavia War Tribunal. Furthermore,
of significance is the steadfast national jurisprudence in connection with, among others, denial of the Holocaust
(see par. 4) as well as the communis opinion with regard to certain events. This communis opinio can be found in
authoritative scientific publications (16-a)(2), but can also manifest itself in resolutions of Dutch or European
_____________________________________________
(15) (3) Article 6 of the Statute of ICC:
For the purpose of this Statute, "genocide" means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such: a. Killing members of the
group; b. Causing serious bodily of mental harm to members of the group; c. Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole or in part; d. Imposing measures
intended to prevent births within the group; e. Forcibly transferring children of one section of population to
group to another.
(16) (1) Article 7 of the Statute:
1. For the purpose of this Statute, "crime against humanity' means any of the following acts when committed
as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
a. Murder; b. Extermination; c. Enslavement; d. Deportation or forcible transfer of population; e. Imprisonment
or other severe deprivation of physical liberty in violation of fundamental rules of international law; f. Torture:
g. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity; h. Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as impermissible under international law, in connection with any act referred to in this paragraph or
any crime within the jurisdiction of the Court; i. Enforced disappearance of persons; j. The crime of apartheid;
k. Other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or
to mental or physical health.
(16-a) (2) See, among others, Centre for Holocaust and Genocide Studies www.chgs.nl , Genocide Studies Program,
Yale, www.yale.edu/gsp: Center for Holocaust and Genocide Studies University of Minneapolis, www.chgs.umn.umn.edu
; Holocaust and Genocide Studies, Webster University, www.webster.edu/~woolflm/holocaust.html; Institute for the
Study of Genocide/International Association of Genocide Scholars, www.isg-iags.org; Studie-en Documentatiecentrum,
Fritz Bauer Instituut, www.fritz-bauer-instituut.de ; The Uppsala Programme for Holocaust and Genocide Studies,
www.multietn.uu.se/uppsalaprogrammet.html; The Danish Center for Holocaust and Genocide Studies, http://www.holocaust-education.dk;
Institut für Diaspora- und Genozidforschung an der Ruhr-Univerität Bochum .
parliaments. The European Parliament has thus declared several times as from 18 July 1987 that the notion of 'genocide'
is applicable to the mass murder of the Armenians in 1915; see, among others, the Resolution of the European Parliament
on the start of negotiations with Turkey (17) (3). Various parliaments have made similar statements (18) (4). In
view of all this, one can conclude that next to Holocaust, in any case, the mass murders of Armenians in the Ottoman
Empire in 1915 (19) (5), of the other Christian minorities in that empire in the same period (20) (6), of Tutsi's
in Rwanda in 1997 (21) (7) and of certain population groups in former Yugoslavia such as Moslems (22) (8) fall
under the notion of genocide (or crimes against humanity).
Further, we have desisted from the inclusion of the "war crimes' defined in Article 8 of the Rome Statute
of the ICC (23) (1) in this bill.
There is a juridical tradition, which is at least four centuries old, concerning the so-called just war, meaning
a war that is waged to repel a great danger or to free a people from oppression. However, according to the UN norms,
even in a 'just' war not everything is permitted: Use of certain types of weapons such as land mines is always
forbidden. Committing war crimes would be a violation of the Geneva Conventions (24) (2). Under the common Article
3 of the Geneva conventions concerning the humanitarian law of war, dating back to 1949, the acts, which are always
forbidden, even when we are dealing with a non-international conflict, have been enumerated. These acts are, among
others: torture, mutilating, corporal punishment, hostage taking, acts of terrorism, 'violation of human dignity'
including rape and forced prostitution, plundering and trial without due process. War crimes are therefore considered
extremely grave in this sense.
The reason why in spite of this, we have desisted from making the denial, minimization/ trivialization etc) of
war crimes also punishable in the bill lies in the circumstance that the proposed bill addresses
__________________________________________
(17) (3) Page 6_TA (2005 0350.
(18) (4) What concerns the Dutch Parliament, on 21 December 2004, a motion by Rouvoet et al recognizing the Armenian
genocide was adopted unanimously (Parliament Paper 21501-20, Nr 270). Other countries where the Armenian Genocide
has been designated as such are: (Greek-) Cyprus (1982), Greece (1996), Belgium (1997), Sweden, Lebanon, and Italy
(2000), France (2001), Switzerland (2003), Canada and Slovakia (2004), Poland, Argentine, Russia, Uruguay, Germany,
Venezuela and Lithuania (2005).
(19) (5) Since April 1915, through the direction of the Ottoman Empire one and a half million Armenians lost their
lives in organized massacres, deportations and other crimes.
(20) (6) In the same period as when the Armenian Genocide took place, many other members of Christian minority
groups of the Ottoman Empire, especially the Christian Assyrians were also killed. The European countries which
recognize these events as genocide are: Sweden and Greece. Recognition of this genocide is under discussion at
this moment in Germany, Switzerland and France. Data: see, among many others,: prof. Dr. J. Yacoub, Catholic University
of Lyon, The Assyrian Question, (La question assyro-chaldéene, 1984).
(21) (7) In April 1994, Hutu extremists started genocide of the Tutsi minority and the moderate Hutu's. Number
of the victims reached 800,000. A recent census by the Rwandan government puts the number of victims even higher,
i.e. 937,000 deaths.
(22) (8) After the fall of the Srebrenica enclave (July 1995), the Bosnian-Serb army deported and murdered 7500
Muslim men and youth. Among others, the Serbian former president, Slobodan Milosevic, was put on trial for this
in The Hague.
(23) (1) Article 8, par. 2:
For the purpose of this Statute, "war crimes" means:
A. Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons
or property protected under the provisions of the relevant Geneva Convention: i. Wilful killing; ii. Torture or
inhuman treatment, including biological experiments; iii. Wilfully causing great suffering, serious injury to body
or health; iv. Extensive destruction and appropriation of property, not justified by military necessity and carried
out unlawfully and wantonly: v. Compelling a prisoner of war or other protected person to serve in the forces of
a hostile power; vi. Wilfully depriving a prisoner of war or other protected person on the rights of fair and lawful
trial: vii. Unlawful deportation or transfer or unlawful confinement; viii. Taking of hostages.
(24) (2) The four treaties of 12 August 1949 of Geneva concern the treatment of the sick and the land and sea war
-wounded, prisoners of war and the protection of the civilians.
itself to denial (etc) of acts of genocide or crimes against humanity that are intended to incite hatred, discrimination
or violence against people due to their race, religion or philosophy of life, gender or hetero- and homosexual
orientation, as well as with the apparent knowledge that thereby peoples or groups of people are being insulted
on account of their race, religion or philosophy of life, gender or hetero- and homosexual orientation. Acts of
genocide and crimes against humanity, as appears from the provisions of Articles 6 and 7 of the Rome Statute, are
in essence in conformity with the afore-mentioned grounds of discrimination. In other words, the motive for these
acts is for the most part related to discrimination against groups of people. In the case of war crimes, this internal
relationship, generally speaking, is not a given fact. It is therefore, less relevant to extend the scope of this
bill to include the denial (etc) of war crimes, because the intent to discriminate, to insult or to stir hate or
violence will likewise be absent here.
The proposed provision relates in this way better to the comparable regulations in other European countries, where
they likewise limit themselves generally to acts of genocide (in a number of cases only to the crimes of the Nazi
regime) and crimes against humanity. Also the Protocol (see paragraph 10) refers only to genocide and crimes against
humanity.
8. Scientific Debate
The precise state of affairs regarding a number of genocides and crimes against humanity is subject to
discussion. As argued in the introduction to this memorandum, historical revisionism is as such not reprehensible.
Historians of course should be open to the possibility that history, such as traditionally is reported, is perhaps
not fully accurate and thus may be subjected to a revision. Historical revisionism in this sense is a generally
accepted part of historical studies. In this sense, there should always be room for scientific debate. Scientifically
also there exists some distance between thoughtless denial of a certain event, such as Holocaust, and the unqualified
adoption of a certain historical vision. Therefore, there should always be opportunity to discuss the extent and
the causes as well as the full facts of genocide that has occurred in the past.
However, the crucial issue here is which motives are behind the questions which are brought forth in a scientific
publication on certain events such as genocide or other crimes against humanity. The context where a certain statement
is made is thus important in order to determine when we are dealing with a free scientific debate and when a statement
is made solely or preponderantly with a racist and discriminatory motive. For example: even a serious looking publication
on a website which is explicitly maintained by the Neo-Nazi's will not readily fall under this scientific exclusion.
For this reason, the proposed regulation includes in its first paragraph the component: 'with the intention of
inciting hate, discrimination or violence' whereby it is coupled also with Article 90quarter (25) (1) of the Penal
Code, and, in the second paragraph contains the component: 'whereas he knows or should reasonably have suspected'
that he is thereby insulting a group of people due to their race, their religion or their philosophy of life or
because of their hetero- or homosexual orientation.
The draft law lying before us as such obliges us to be careful in our public utterances where recognized genocides
or crimes against humanity are being mentioned.
9. Weighing against other Constitutional Rights
By explicitly making negationist utterances punishable, the interests which this regulation strives to
protect can, in certain clear-cut cases, clash with the interests which are protected by constitutionally _______________________________________________
(25) (1) Article 90 quarter. of the Penal Code defines the notion of discrimination. "Under discrimination
it is understood every kind of differentiation, exclusion, limitation of preference, which is intended or can result
in the nullification/ voiding or impairment of the recognition, enjoyment or implementation of human rights and
the fundamental freedoms in political, economic, social or cultural sphere or in other spheres of social life on
equal footing ".
laid down freedom rights such as Articles 6 and 7 of the Constitution and the Articles 10 and 11 of the ECHR*
The framework within which it is determined whether an appeal to the freedom of expression or freedom of religion
and philosophy of life fails because we are dealing with a punishable utterance, is formed by court judgments,
which relate to the already existing anti-discrimination Articles of 137c to 137g of the Penal Code. Analysis of
these articles yields the following (26) (2). An appeal to these freedom rights is not entertained if the utterance
is intended to offend or, taking everything into consideration, cannot reasonably be defined other than offending,
for instance by the formulation of the expression, considering the context in which the utterances are made. The
freedom of expression or of religion is meanwhile violated if a call is made to violence or discrimination.
In 1991, Minister Hirsch Ballin of Justice stated in defence of his proposed bill in the Parliament providing for
broadening of the provisions concerning campaigning discrimination, that an element of offending should be present.
In the explanation to the meaning of "discrimination" pursuant to Article
90quater of Penal Code, he spoke about the disqualifying element in expression or in action. Also the comment made
by Noyon-Langemeijer-Remmelink on Article 90quater of Penal Code confirms this reading.
Applied to the bill in question, this means the following: the proposed bill is intended to penalize the denial,
gross trivialization, approval or justification of genocides and crimes against humanity. A punishable utterance
or expression in this area can be recognized more easily to the extent that the expression in itself cannot be
understood as anything other than insulting or to the extent that it could reasonably be concluded that discriminatory
or racist motives (too) were behind the utterance in question. Thus the context of the utterance likewise is of
importance. In view of the history and in view of the role that the Holocaust denial plays in negationist circles
and in view of their relationship with anti-Semitism in general, such an utterance will quite easily fall under
the reach of the proposed regulation.
In an assessment that the court may make in a concrete case of, possibly discriminatory utterance, it is likewise
important whether the subject of the utterance forms part of a public debate. The consistent jurisprudence of the
European Court of Human Rights shows among others that the prohibition of a differing view (27) (1) as such very
easily can constitute a breach of the freedom of expression. According to the Court, a public discussion, that
is, 'the bedrock of any democratic system' should not be gagged too severely, because there is a danger that the
development of democracy can thereby be restricted (28) (2). Also here (see previous paragraph) the intent of the
expression is of importance. Shocking, hurtful or annoying views and standpoints as such can also be part of a
public debate. Within the context in which they are expressed, it can be just as well ascertained whether they
are expressed exclusively, or are also, to destroy or to touch upon the rights and freedoms of others.
The freedom rights thus should not be used or, better said, should not be abused for those purposes. Freedom rights
are in general framed by prevention of abuse provisions under Article 17 of ECHM, which stipulates that the rights
and freedoms incorporated in the Convention should not be used to
___________________________________________
* European Convention on Human Rights.
(26) (2) See, among others, Noyon, Langemeyer, Remmeling, Penal Code, annotations to Article 137c: Court of Amsterdam,
26 January 1993, Information right. /AMI 1993, 3; Court of Amsterdam 20 February 1996, NJCM bulletin 21 (1996),
5; HR, 9 January 2001, NJ 2001, 203; Court of Arnhem, 7 February 1989, KG 1989, 110.
(27) (1) Differing from the 'common', 'customary', 'politically correct' view on a certain subject.
(28) (2) ECHR 19-2-1998, Mediaforum 1998, page 125, Bowman versus United Kingdom, See also. Among others, ECHR
27-02-1997, NJB 1997, page 1680, De Haes en Gijsels versus Belgium; see also 'Criminal Insult', A.L.J.M. Janssens,
Thela Thesis, namely, chapter 13.
consciously harm the rights and freedoms of others. In case the freedom of expression is used to damage the good
name or the rights of others, such as stipulated in Article 10, par. 2 of the ECHR, then it can be withdrawn or
be subject to sanctions. Thus the perpetrators of racist or xenophobic offences cannot get away with judicial persecution
by an appeal to a protection under freedom of expression.
10. Protocol of the Convention for Penalization of Acts of Racist or Xenophobic Nature Perpetrated via Computer
Systems
The proposal at issue can, as far as this initiator is concerned, be seen also as a fulfilment
of the Protocol to the Convention for Penalization of Acts of Racist or Xenophobic Nature,
Carried out via Computer Systems.
This Protocol is a supplement to the named Convention. The Protocol has been created under the flag of the Council
of Europe on 28 January 2003 in Strasburg out of worry for the increase in racist and xenophobic propaganda notably
via Internet. Nearly 20 member states of the Council of Europe have in the meantime signed the Protocol. Some member
states have already ratified the document.
The Treaty for Campaign against Crimes Related to Electronic Networks (Trb. 2004, 290) widens the possibility of
the campaign against the crimes which are committed with the help of computer technology or those which are directed
against the operation of computer systems and
networks (29) (3). The Protocol of the Convention, generally speaking, presses for legislative and other measures
against spreading of threats, insults etc of racist or xenophobic nature via the Internet or other computer systems.
In addition to that, the Protocol contains in its Article 6 a recommendation to take measures against denial, trivialization,
approval or justification of genocide or crimes against humanity.
The Dutch legislation can in principle be deemed to be sufficiently in conformity with the provisions of the Convention
and the Protocol. It should be mentioned here that the penal law at this moment does not provide for an explicit
penalization of denial, trivialization etc of genocide and crimes against humanity. While the Protocol contains
such an explicit penalization (see Article 6), it does not make it mandatory (see Article 6, second par.). This
initiator believes that it is important to make provision for this as well for reasons mentioned earlier in this
memorandum. It should also be mentioned that signing of the Protocol cannot be devoid of an obligation. As stated
in the preamble of the Protocol: there is a pressing need 'to ensure the full and effective realization of all
human rights without discrimination or distinction …' and therefore it is important to provide - taking into consideration
the vested interests with regard to the freedom of expression - for an 'efficient campaign against treatments of
racist and xenophobic nature'. In view of this, making negationism punishable can contribute to a clear and consistent
legislation in this sphere.
11. Illustration per Article
After Article 137d a new article is being added.
This new Article 137da makes in its first par. denying, grossly minimizing, approval or justification of genocide
or crimes against humanity in public (orally or in writing or in picture) intended to incite hate, discrimination
or violence against an individual or a group of individuals on the basis of race,
____________________________________________
(29) (3) The motion for the approval of the Treaty (Parliament paper 30 036) has been adopted on 15 September 2005
without deliberation and without voting. At this moment it is pending in the First Chamber (Senate) for hearing.
The proposal should be seen in connection with Computer criminality II (Parliament paper 26671), that accommodates
the present legislation with higher punishments for computer criminality, broadening the penalization scope of
a number of delinquencies as well as the powers and authorities of the Judicial bodies and the Police.
religion, philosophy of life or hetero- or homosexual orientation, punishable. The second par. of this article
makes punishable anyone who denies, gravely trivializes, approves or justifies in public orally, in writing or
in picture, acts of genocide and crimes against humanity whereas he knows or should reasonably suspect that he
thereby insults a group of people because of their race, religion, philosophy of life or their hetero- or homosexual
orientation.
Violation of this provision carries with it a maximum prison term of one year or a cash penalty of the third category.
This stipulation is related to the threat of punishment in other provisions concerning discrimination (Article
137c up to and including 137g of the Penal Code).
Genocide and crimes against humanity are defined in Articles 6 and 7 of the Rome Statute of the International Criminal
Court. An illustration of the different components of this Statute can be found in par. 7 of the Explanatory Memorandum
of this present bill.
Following on par. 7, it can be said that the denial, (gross trivialization, etc) concern facts and circumstances
about which the question cannot reasonably be asked whether they have occurred or not. In other words, it is evident
that the denial does injustice to proven facts.
Article 137c of the Penal Code has already made punishable publicly making of insulting
utterances or expressions orally, in writing or in picture, about a group of people because of their race, religion,
philosophy of life or their hetero- or homosexual orientation. In addition to that, Article 137d of the Penal Code
makes inciting of hate or discrimination against people or acts of violence against people or goods of people because
of their race, religion or philosophy of life, their gender or hetero-homosexual orientation, punishable. Article
137e of the Penal Code has made publicising or unsolicited dispatch of discriminatory or hate inciting publications
punishable.
The new Article 137da should be seen as a supplement to these three provisions. The goal of that article is to
ensure that negationist utterances will be considered punishable beyond doubt and to send a clear signal to the
society about the type of expressions that should be seen as negationist, hence, punishable.
In order to distinguish between the punishable utterances and - for instance - discussions of historical events
which should be considered scientific debate, Article 137da includes a component to the effect that the utterances
should have been made with the intention of inciting hatred, discrimination or violence against persons or the
property of persons due to their race, their religion or philosophy of life, their gender or hetero- or homosexual
orientation as well as with the knowledge or apparent knowledge that with such expressions people are being insulted
on account of their race, religion, philosophy of life or their hetero-or homosexual orientation.
Article 137da has for the rest a similar structure as the previous Articles 137c and 137d in the form of the provision
that makes only the insults that are made in public punishable. The negationist utterances are thus punishable
only if they are made in public, whether orally, in writing or in picture. Publication on the Internet can be considered
as display 'in writing'. According to Noyon-Langemiejer-Remmelink, written texts and pictures are all mechanical
reproductions of thoughts through word, print or picture. Under written text is understood every mechanical reproduction
of thoughts and ideas: that is, they needn't be made with pen or pencil, but can also be created by printing, cutting
and carving and every other possible media.
For an answer to the question when an utterance is deemed to have been made in public, one can look for a reference
to the meaning that the Supreme Court of the Netherlands (30) (1) has attached to the notion: "in public"
in the case of the crime of sedition. (Article 131 Penal Code): " 'In public' does not mean that the inciting
words are uttered in a public place, but that they are uttered in such circumstances and in such a manner that
they can be heard by the public"(31) (2).
______________________________________________
(30) (1) HR 11 December 1999, NJ 1991, 313, m.nt. A.C. 't Hart.
(31) (2) HR 22 May 1939, NJ 1939, 861
The utterances should thus be perceptible by the public. Statements in the written media or in radio or television
are always 'in public'. Sending of a book with insulting content to Jews to a small, selective party of people
is to be deemed as expressing yourself publicly about a group of people (32) (3). As distinguished from that, the
distribution, for instance, of an internal draft report cannot be seen as bringing it in public (33) (4). Since
the change in legislation of 1992, sending of unsolicited objects with discriminatory content has been made punishable
under Article 137e of the Penal Code.
In two suits concerning 'extreme right' utterances, the question whether the expressions in party meetings were
to be deemed to have been made in public was pivotal. In both cases, the meetings were not closed and the journalists
were present (34) (5). In one case, the Supreme Court found sufficient
evidence of the public nature of the meeting and in the other case not (35) (6).
In the case of the second par. of Article 137da one may use the construction of conditional intent. The doctrine
of conditional intent presumes that the suspect knowingly and willingly exposes himself to a not-imagined probability
that he is acting against the law. He thus takes the consequence of his deeds upon himself. Whether or not the
suspect has had the intention of acting against the law does not count (36) (1).
The following can still be added to that. Genocide and crimes against humanity are extraordinary wicked acts of
which the extent of the crime trespasses the boundaries of imagination. By definition, there are (very) great numbers
of victims. The sole knowledge of this should reasonably lead to the understanding that its denial, gross trivialization,
approval or justification can hardly be conceived as anything other than insulting to the victims or their survivors.
This applies all the more to those who habitually participate in public debates. They may be asked to be careful
in their statements.
The third paragraph of Article 137da is identical to Articles 137c, paragraph 2; 137d, par. 2 and 137g, par. 2
and needs no further illustration here.
Huizinga-Heringa
_________________________________________
(32) (3) Court of Arnhem, 4 June 1982 in A.C. Possel (red.) Administration of justice on Race Discrimination 1995,
Zwolle: W.E.J. Tjeenk Willink 1995, nr 41.
(33) (4) Court of Amsterdam, 13 September 1984, A.C. Possel (red.) Administration of justice on Race Discrimination
1986-1987, Lelystad: Koninklijke Vermande (Publication) 1988, nr 74: HR 24 February 1987, RR 1995, nr 143.
(34) (5) Court of The Hague, 7 May 1999. RR 1995-2000, nr 514, m.nt. Van der Meij and Court of Rotterdam, 8 April
1998, RR 1995-2000, nr 471, m.nt. Van der Meij and again Court of The Hague, 7 May 1999, RR 1995-2000, nr 514,
m.nt. Van der Meij.
(35) (6) HR 29 May 2001, www.rechtspraak.nl (twice); see also: C.C. de Fey, "The Supreme Court of the Netherlands
defines the notion of "publicity" (not translated in English -tr.), in Zebra Magazine, 4/December 2001,
Rotterdam: LBR, p. 21-22. See also Court of 's-Hertogenbosch, 18 January 1999, nr 503, m.nt. Van der Meij, HR 14
September 1999, RR nr. 527, m.nt. Van der Meij and The Court of Amsterdam, 8 June 2000, RR nr. 555.
(36) (1) Remmelink, Mr. D. Hazewinkel-Suringa's Introduction to a Study of the Dutch Penal Law (In Dutch), Deventer:
Gouda Quint BV 1996, p. 205-208.
****************
|