Careful Doing History in Europe -- You Might Go to Prison:

From a newly adopted EU proposal:

1. Each Member State shall take the measures necessary to ensure that the following intentional conduct is punishable: ...

(c) publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group;

(d) publicly condoning, denying or grossly trivialising the crimes defined in Article 6 of the Charter of the International Military Tribunal appended to the London Agreement of 8 August 1945, directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin when the conduct is carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group....

1b. For the purpose of paragraph 1, the reference to religion is intended to cover, at least, conduct which is a pretext for directing acts against a group of persons or a member of such a group defined by reference to race, colour, descent, or national or ethnic origin.

So if you're writing about whites' relations with American Indians', or the Crusades, or the reconquest of Spain from the Moors, or for that matter about any aspect of history that involves ethnic-based slaughter — think how much of that there has been in history — you might be violating the law. True, this would be covered only if your actions are "carried out in a manner likely to incite to violence or hatred against such a group or a member of such a group." Is that really great comfort, though? If a tribunal concludes that your actions were likely to incite hatred against the defeated group, or even a member of the group, you're a criminal.

The enactment does give states the latitude to limit this:

1a. For the purpose of paragraph 1 Member States may choose to punish only conduct which is either carried out in a manner likely to disturb public order or which is threatening, abusive or insulting....

2. Any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement that it will make denying or grossly trivialising the crimes referred to in paragraph 1(c) and/or (d) punishable only if the crimes referred to in these paragraphs have been established by a final decision of a national court of this Member State and/or an international court or by a final decision of an international court only.

Thank you very much; states may choose not to suppress discussion of history quite as much as the EU suggests. For instance, until a court "establishe[s]" the Official View Of The Crusades, you're free to write history about them; only after the court establishes the True Historical Account would any attempt to question the new legally announced historical orthodoxy become a crime.

Oh, and here are the penalties:

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by effective, proportionate and dissuasive criminal penalties....

Each Member State shall take the necessary measures to ensure that the conduct ... is punishable by criminal penalties of a maximum of at least between 1 and 3 years of imprisonment.

But of course there's no danger of restricting free speech: "This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles, including freedom of expression and association, as enshrined in Article 6 of the Treaty establishing the European Union.... This Framework Decision shall not have the effect of requiring Member States to take measures in contradiction to [...] fundamental principles relating to freedom of association and freedom of expression, in particular freedom of the press and the freedom of expression in other media as they result from [...] constitutional traditions or rules governing the rights and responsibilities of, and the procedural guarantees for, the press or other media where these rules relate to the determination or limitation of liability." Well, OK, then.

Thanks to Victor Steinbok for the pointer.

Related Posts (on one page):

  1. Historians Getting Into Legal Trouble:
  2. Careful Doing History in Europe -- You Might Go to Prison: