Il Commento

Europe moves to censor historians

by Luigi Cajani (July 2007)

During its session of 19–20 April 2007, the Council of the European Union adopted a framework decision on the fight against racism and xenophobia[1] (see Appendix: “english text.pdf”, pages 23–25), a decision which strikes a blow against the freedom of historical research.

This framework decision is the result of an initiative launched at the beginning of January 2007 by the German Justice Minister, Brigitte Zypries[2], who, in the context of Germany’s presidency of the European Union, wanted to bring about the successful completion of a process, which began in 2001[3], involving all the Member States of the European Union in legislation to criminalize the denial of genocides, notably the Holocaust; as is already the case in Germany, Austria and France. This initiative has provoked a great deal of negative response: such as the reaction of the political commentator Timothy Garton Ash, writing in The Guardian on 18 January[4] that this initiative, however well–intentioned, “is very unwise… [and] it would further curtail free expression – at a time when that is under threat from many quarters”. The German historian Eberhard Jäckel, in an interview on 1 February with Deutschlandradio[5] also asserted that the denial of the Holocaust was “a stupid thing to do” which did not need to be punished unless it incited hatred; and could be combated more effectively by information. In Italy especially, a huge debate took place[6] when the Italian Justice Minister, Clemente Mastella, immediately followed his German counterpart in proposing a law for Italy to criminalize Holocaust denial[7]. This initiative gave rise to a revolt among Italian historians: in a single day, more than 200 people signed a petition[8] asserting that such a law was dangerous, useless and counterproductive: because it would provide deniers with “the opportunity to present themselves as defenders of freedom of expression”; because in its efforts to impose historical truth, the State would expose this truth as losing all legitimacy and would undermine “confidence in the free confrontation of stances and in the free historiographical and intellectual research”; and because laws criminalizing incitement to violence, incitement to racial hatred, and the praising of crimes against humanity already exist in Italy. The petition concluded with the assertion that civil society alone was empowered to combat denial by means of “a cultural fight, by ethics and by steadfast policy”. In the face of such universal opposition and outrage, Mr. Mastella fundamentally changed his bill by eliminating all references to Holocaust denial and by limiting it to imposing tougher penalties on those who “disseminate ideas of racial superiority”[9].
Minister Zypries’ proposal, despite its failure in Italy, has continued on its course at European level[10], and will be realised through this framework decision, which applies not only to racist and xenophobic remarks and the denial of the Holocaust, but also to “publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes as defined in the Statute of the International Criminal Court (Articles 6, 7 and 8)” (page 23).
Within a time frame of two years, after the adoption of this framework decision, each Member State will be required to adopt matching legislation which makes provisions for a penalty of between 1 to 3 years’ imprisonment.
This framework decision contains many worrying elements. One should immediately notice the vagueness regarding the judicial powers to decide which historical events form part of the crimes named above. The Holocaust is not included, since it has been subjected to the Nuremberg Trials. As far as the International Criminal Court is concerned, it is only allowed to judge crimes committed after 1 July 2002, when its statute came into force. Therefore, one assumes that for the other crimes, the decisions will be taken by the tribunals on an ad hoc basis, as was the case for Rwanda or the former Yugoslavia; with decisions taken by ordinary national judges or by legislative representatives. In addition, the concept of “grossly trivialising” remains very vague and, as a result, can be abused very easily. This framework decision, even if it remains outside of the stated normative framework, is also concerned with crimes of totalitarian regimes: it considers them to be deplorable and envisages encompassing this norm after a “public European hearing” organised by the Commission (page 25). The aim of this hearing remains technically undefined, though one may speculate that it will consist in drawing up a list of historic events which will form part of a specifically stated crimes.
This framework decision stands within the context of the French memorial laws [lois mèmorielles]: firstly the Gayssot Law in 1990, concerned with the denial of the crimes pursued at Nuremberg; then, a law of 2001, which recognised the Armenian genocide during World War I, a law that was reinstated in 2006 with norms criminalising denial; the Taubira Law in 2001, on the treatment of African slaves; and the Mekachera Law in 2005, on the subject of French colonialism. These laws stirred up strong protests among French historians, notably the Libertè pour l’Histoire [Freedom for History] petition in 2005, which received 1000 signatures[11], and demanded that they be totally repealed, with the assertion that “in a free State, it is not within the power of either Parliament or the judiciary to define historical truth”. The very serious danger that these laws pose to the freedom of historians’ research is clearly illustrated by the case of the French historian Olivier Pètrè–Grenouilleau, author of the essential text on the slave trade Les traites nègrières, against which the French Collectif des Antillais, Guyanais, Rèunionnais lodged a formal complaint based on the Taubira Law, for having asserted that the Atlantic slave trade did not constitute genocide. The complaint, which also called for Pètrè–Grenouilleau to be expelled from the university, was finally retracted by the Collectif in February 2006 under intense protests from French historians.
All this shows the dangers that similar legislation represents. Although it is borne out of the necessary and just fight against racism and xenophobia, it ends up – via a series of conceptual shifts – affecting the issues which are solely those concerned with historical research. On the contrary, it is necessary for historians and politicians to remain autonomous, each in his own domain. Politicians can decide which political use of history best serves their own ends, by instituting official memorials, for example ; but they must not interfere – with the aid of judicial powers – in the work of historians. This framework decision marks a very dangerous development in the delicate and often difficult relations between politicians and historians. It is therefore necessary that historians in Europe and elsewhere in the world question the motives and the consequences of such a framework decision and take a stand publicly on this issue.

Luigi Cajani
Dipartimento di storia moderna e contemporanea
P.le A. Moro, 5
00185 Roma




[1] [


[3] For the history of this process, see



[6] See the press review at



[9] Cfr.–stampa/xv_leg/25.01.07.htm

[10] For documents relating to the public hearing of the European Parliament on 19 March 2007, see:

[11] A dossier covering this appeal and all the memorial laws [lois mèmorielles] can be found on the website:; see also the statement of Renè Rèmond, Quand l’Etat se mêle de l’histoire, Paris, Stock, 2006.


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Pagina modificata Thursday 23 October 2008