Testing the ‘Uniqueness’: Denial of the Holocaust vs Denial of Other Crimes before the European Court of Human Rights

Abstract

The European Court and the European Commission of Human Rights have long dealt with expressions denying the existence of the Holocaust. Invariably, they have found that such statements do not merit protection under the free speech principle.

An opportunity to test the Court’s case law against other forms of denialism emerged in the case of Perinçek v. Switzerland, concerning the denial of the Armenian genocide. The question arises as to whether the special protection afforded against the denial of the Holocaust equally applies to the denial of other historical facts. The goal is not to analyse whether the Holocaust is a unique historical event, but rather whether it calls for a unique legal regime with respect to negationism.

Two critical issues raised by this case are addressed. The first revolves around the scope and functioning of the abuse clause under Article 17 of the European Convention. The second one is whether the Court convincingly justified a differentiated protection against the denial of the Holocaust and that of other past tragedies, in particular the one inflicted upon Armenians by the Ottoman Empire, which was at the heart of the Perinçek judgment.

Keywords: free speech, freedom of expression, Holocaust, Armenian genocide, denial, European Court of Human Rights, racism, abuse of right

JEL Classification: K14, K33