The Gayssot law of 1990, in the context of a general reinforcement of the struggle against racism and anti-Semitism, sanctions the public questioning of the reality of crimes against humanity “as they are defined by article 6 of the Statutes of the International Military Tribunal appended to the London Agreement of 8 August 1945”, that is to say in practice the genocide committed by the Nazis. The object of the law is not to protect Jewish sensitivity against attacks by those who deny the Holocaust; legal instruments to that end already existed, at least in civil courts, and they have been used also against those who deny the Armenian genocide. The law sanctions negationism not because it is an insult to the victims but as an incitement to racial hatred. According to the terms used by the then Minister of Justice (Pierre Arpaillange) when presenting the text of the law to the French Senators, “the denial of the Holocaust (…) is, today, merely an expression of racism and the chief vector of anti-Semitism”. What is at stake therefore is not remembrance, however respectable it may be, but the current use made of the negation of memory.
The “Freedom for history” petition takes up an often heard argument, according to which the Gayssot law is questionable because it is not up to a judge to say what is truth when it comes to history. Now, this law – as is the case with other anti-negationist laws adopted by several of France’s neighbours – does exactly the opposite. It makes it possible for the judge to avoid making a pronouncement on historical truth, because it defines very precisely the theses whose promotion is a crime.
This may be easily demonstrated if one compares it to the situation faced by one of our neighboring countries which does not have a law that is equivalent to the Gayssot law: this is the United Kingdom.
Toward the end of the Nineties, the Old Bailey Law Courts in London were required to make a ruling in a case opposing the English negationist David Irving and the American historian Deborah Lipstadt. The latter had argued against David Irving in a book on those who deny the Holocaust. As a result, David Irving’s reputation in the United States suffered durably, to the point that he encountered difficulties in placing his books with American publishers. Considering that he had suffered moral and material damages, David Irving sued Deborah Lipstadt and her British publisher, Penguin Books, in the London courts.
If the United Kingdom had had the equivalent of the Gayssot law in its legal arsenal, it would have been sufficient for the judge to take note of the fact that David Irving’s writings did indeed include a negation of the Shoah. But in the absence of such a law, the Court had no other option but to bring historians to the witness stand, who among other things testified that there had indeed been gas chambers at Auschwitz-Birkenau.
After seemingly endless debates, David Irving lost his suit. In its conclusions, published in April 2000, the judge described Irving as “an active negator of the Holocaust”, an “anti-Semite and a racist”, and a “polemicist from the far right” and “pro-Nazi”. These conclusions, however, were only reached after an in-depth debate on the Nazi extermination camps, the “mobile killing operations”, the ghettos, etc. To summarize, the British judge was obliged to “state the truth on historical matters”, precisely because there is no equivalent of the Gayssot law in British law. It is precisely the Gayssot law which avoids the French judge having to “make a pronouncement on historical matters”.
The crime of incitement to racial hatred and discrimination was not invented by the Gayssot law in 1990. What the law did was to abolish one of the arguments behind which racists – and more particularly anti-Semites – hide in order to pursue their work.
Meïr Waintrater is chief editor of “L’Arche: The monthly magazine of French Judaism”.
English
Français