UNDENIABLY DIFFICULT: EXTRADITION AND GENOCIDE DENIAL LAWS.

• Published date: 22 September 2018
• Author: Fotiadis, Dylan
• Date: 22 September 2018

INTRODUCTION

Denial is often considered the final stage of genocide. (1) This is due to the alarming frequency of denial and skepticism that appears to immediately follow the physical killings. (2) No act of genocide in the past one-hundred years has been without its subsequent doubters, detractors, or outright deniers. (3) The quintessential example of this phenomenon is the denial of the Holocaust--the murder of millions of people, approximately six million of them Jews, in Europe during the Second World War by Nazi Germany and its collaborators. (4)

The phenomenon of post-genocide denialism has gained worldwide scholarly attention. (5) Gregory Stanton, professor of Genocide Studies and Prevention at George Mason University, produced a renowned report in 1996 laying out the "eight stages of genocide" (6) for the U.S. Department of State. In that report, Stanton assigned denial as the eighth stage of genocide, and recommended the proper punishment for genocide denial to be criminal prosecution. (7) Indeed, most nations of the European Union (as well as Israel and Russia) criminalize Holocaust denial. (8) Despite the threat of criminal prosecution, however, Holocaust and genocide denial have taken on a cult-like following of their own on the internet. (9)

Denialism of atrocities including the Rwandan Genocide, (10) the Armenian Genocide, (11) the Cambodian Genocide, (12) and others (13) is also quite common. Recognizing denial of the Rwandan genocide as a social ill, for example, the Rwandan government constitutionally forbids it.

Similarly, the Holodomor, or "Great Famine" of Ukraine, an ethnic cleansing of the Ukrainian people by the Soviet Union beginning in 1933, (15) has fallen victim to widespread denialism. (16) Although several countries do not recognize Holodomor as a fully-fledged genocide, the Ukrainian parliament passed legislation in 2006 prohibiting the denial of the Holodomor as well as the Holocaust. (17)

Accordingly, several countries have enacted laws criminalizing genocide denial. (18) Crucially, the United States, Canada, and Great Britain do not have laws expressly or impliedly prohibiting genocide denial, (19) largely due to the strength of free speech principles within the legal traditions of those countries. (20)

A unique legal issue therefore arises with respect to extradition of defendants to face prosecution under genocide denial laws. In extraditing a defendant from one nation to another with incongruent laws, there will always be a balance of moral and legal imperatives: on the one hand, denying an extradition petition for a Holocaust or genocide-denying defendant to a nation forbidding genocide denial risks appearing to sanction or excuse denialism. (21) On the other hand, a grant of the petition to extradite that defendant to face prosecution under such laws would certainly pose its own legal, moral, and public policy concerns as an assault on freedom of speech. (22)

With respect to the United States, genocide denial laws could most likely never exist anywhere in America, as they would be a direct violation of Constitutional protections of free speech. (23) Although European nations like France do have strong traditions protecting free speech and press in their legal systems, (24) their perspectives on balancing the imperatives between free speech and curbing hateful speech are different than those in America; they are decidedly less libertarian. (25) The motivation behind genocide denial laws is not merely concern about distortions of historical fact. Holocaust denial, for example, has been frequently considered hate speech, (26) and is widely thought to be driven mainly by anti-Semitism. (27) These legal conflicts are compounded by modern developments in communication technology and social media. Unfortunately, the rise of the internet has exposed a grim picture of the popularity of genocide denial. (29) Despite the internet's utility and advantages, anonymity on the internet allows virtually complete impunity in spreading messages of hate and denialism. (30) This is especially problematic when the individual is computer and internet savvy. (31)

In Part I, this paper will examine the history and development of genocide denial, will examine genocide denial laws globally, and will introduce a brief survey of extradition laws and customs in the United States. In Part II, the paper will explore in greater detail the legal conflicts that arise from extradition petitions to common law nations for genocide deniers by prosecuting nations. (32) It will also explore current and past commentary on the matter, analogous situations that have occurred in Europe and elsewhere, legally related situations (denials of asylum requests, deportations), and the legal conflicts that arise therefrom. In Part III, this paper will then suggest means of mitigating some of the legal challenges arising from these conflicts with a focus on the United States.

PART I: BACKGROUND AND ISSUES

Instances of genocide denial are unfortunately as frequent as genocide itself. (33) Although genocide can be denied by a wide range of people, (34) genocide denial is often related to bigotry or ethnic tensions (35) or age-old canards. (36) Genocide denial is a personal insult to the memory of the deceased victims of genocide, to the survivors of genocide, and to the family members and descendants of either. It is a generalized insult to the various ethnic groups victimized by genocide. Moreover, it is an indignity to the truth and pursuit of understanding of history.

A recent increase in skepticism of denialism about the Holocaust (37) could be aided by the internet and the ease at which individuals wishing to remain anonymous can access certain web forums, (38) blogs, or "news" websites (39) devoted to denying the Holocaust. (40)

Obviously, there is a vast array of legal issues associated with policing free speech on the internet, especially if the websites are not officially or discemably sourced within a particular nation or region. This phenomenon is of greater consequence in recent decades with the expansion of, and greater access to the internet, which potentially presents legal issues relating to genocide-denial prosecution based on particular comments.

Holocaust denial on the internet is further complicated by laws criminalizing genocide denial. Despite the deep-seated diplomatic and social consequences of enacting such legislation, several countries during the twentieth and twenty-first centuries were motivated to enact them. (41) The motivation for these laws is multifold: some scholars claim that anti-genocide-denial laws are intended ("ostensibly" (42)) to prevent a reoccurrence of genocide, (43) while in most respects it appears that genocide denial laws in particular were enacted to combat hate speech; for symbolic reasons; and or, in the case of Holocaust denial, to discourage the circulation of neo-Nazi or anti-Semitic conspiracy theories that serve to harm and re-traumatize the victims of the Holocaust or their families. (45)

Pertinently, author Marissa Goldfaden of New York University writes that "[t]o refute genocide is an attack on the psyche and morale of the society in which it occurred. It is an affront to the victims, both living and dead." (46) Although this is an excellent summary of public motivation for outlawing genocide denial, a more nuanced analysis of the actual laws intended to prevent these consequences is needed.

There appear to be different overlapping categories of genocide denial laws. Some nations, such as France and Portugal, enacted Holocaust-denial laws in an attempt to combat racism, extremism, bigotry or expressions sympathizing with the perpetrators of genocide. This is made clear in the statutes' use of words tending to speak to the state of mind of the offender. (48) By contrast, atrocity-denial laws in Poland (49) appear to be intended for broader dignitary reasons, (50) although the distinction is minor.

Genocide denial laws (51) are remarkably common. These laws are popular either in regions in which genocide took place (e.g., Poland and Ukraine), (52) regions considered the successors of the perpetrator nations (e.g., Germany), (53) or regions with a significant population of victims or victims' families (e.g., Israel and Rwanda). (54) The efficacy of these laws has long been disputed, (55) but they largely still remain in effect. (56) Notable examples of Holocaust denial laws include those of Israel, Poland, Portugal, Russia, and Germany. (57) Other examples of similar non-Holocaust-related genocide denial laws include those of Rwanda (58) and Cambodia. (59)

A primary example of a law criminalizing Holocaust denial is that of Israel. Israel's genocide denial law is deeply rooted in the nation's Jewish heritage, presumably as a strong nod to its European Jewish past. (60) The Israeli Knesset (parliament) passed its Holocaust denial law in 1986, (61) perhaps in response to a rise in denialism or questioning of the Holocaust worldwide. (62) The law reads, in part, that "[a] person who... publishes any statement denying or diminishing the... acts... committed in the period of the Nazi regime... shall be liable to imprisonment for a term of five years." (63)

Relatedly, Germany has enacted a law outlawing Holocaust denial. (64) They are rooted in part in the country's collective shame and affirmative willingness to confront dark aspects of its history during the Nazi era. (65) Though it does not specifically refer to the Holocaust as perpetrated against the Jews, the laws of "Incitement to Hatred" (66) and "Dissemination of Propaganda Material of Unconstitutional Organisations" (67) are invoked very frequently to prosecute deniers of the Holocaust in Germany. (68) In its most important segments, the law of "Incitement to Hatred" provides:

(1) Whosoever, in a manner capable of disturbing the public peace: 1
                incites hatred against a national, racial, religious group or a group

...