by Mark Weber
Institute for Historical Review
October 15, 2008
Mark Weber is director of the
Institute for Historical Review.
He has written extensively about
the issue of free speech on controversial historical questions.
Dec. 1998 and again in Oct. 2000 he testified in Canadian Human
Rights Tribunal hearings in Toronto.
For five days in March 1988 he
testified in a Toronto District Court case as a recognized expert on
the “Final Solution” and the Holocaust issue.
He studied history at
the University of Illinois (Chicago), the University of Munich,
Portland State University and Indiana University (M.A., 1977).
On October 1, British police at London's Heathrow airport arrested Dr.
Frederick Toben an Australian citizen and a Holocaust revisionist
during a stop on a flight from the United States to Dubai.
He was detained
on the basis of a "European Arrest Warrant" issued by German authorities
that accuses him of publishing material online "of an anti-semitic and/or
Toben, a former schoolteacher who holds a doctorate in philosophy, has
reportedly described the Holocaust as "a lie".
Institute" website allegedly carries the transcript of an
interview in which he says there is "no proof" that the Hitler regime
systematically exterminated Jews.
He is being held in custody until a British
court decides if he is to be extradited to Germany.
A hearing is scheduled for Oct. 17. A German
prosecutor says that if Toben is extradited, he could be sentenced to five
years in prison. He would then join two German citizens, Ernst Zundel
and Germar Rudolf, who are already serving prison terms for having
violated Germany's "Holocaust denial" law.
In Germany it is crime to "deny, play down or justify" genocidal acts
carried out by the Hitler regime.
"Holocaust denial" is also a crime in France,
Switzerland, Belgium, Austria, and several other European countries, as well
as in Israel.
Over the years many individuals have been fined,
imprisoned or forced into exile for "denying the Holocaust," including:
Robert Faurisson and Roger Garaudy in
Siegfried Verbeke in Belgium
Juergen Graf and Gaston-Armand Amaudruz
Ernst Zundel, Germar Rudolf, Guenter
Deckert and Hans Schmidt in Germany
The Toben case has generated considerable media
attention and much critical commentary. One of Britain's most influential
daily papers, the Telegraph, sharply condemned the arrest as a "blatant
attack on free speech."
In an editorial headlined,
"Dr. Fredrick Toben's Arrest Should Alarm Us
All," it cautioned that "the British legal system should have no part in
Chris Huhne, a British parliamentarian
and home affairs spokesman of the Liberal Democratic party, noted that
"Holocaust denial" is not a crime in Britain, and said that British courts
should refuse to extradite Toben.
In most of the world, Europe's "denial" laws are regarded as peculiar and
This was obvious after the November 2005 arrest
in Austria of British historian David Irving. He was detained on the
basis of an outstanding warrant for the "crime," committed 16 years earlier,
of having expressed dissident views about the wartime treatment of Europe's
Jews. After a sensational trial in Vienna, he was sentenced to three years
imprisonment. (He was released after 13 months.)
Irving's ordeal prompted commentary in newspapers around the world nearly
all of it critical of the arrest and of the laws in a few European countries
under which he, and many others, have been imprisoned, fined or forced into
"Denial" laws criminalize even factual or truthful statements that "play
down" the wartime treatment of Europe's Jews, thereby violating ancient and
universal standards of justice
Justice applied selectively is not justice. It is a form of injustice.
Because "denial" laws prohibit dissident views about only one chapter of
history, they are inherently unfair. They inhibit historical inquiry and
restrict free speech.
Free and open societies normally protect even offensive speech. That's why
western countries defend the right of their citizens to "deny, play down or
justify" crimes committed by the United States, Israel or the Soviet Union,
or to publish offensively anti-Christian or anti-Muslim writings.
Across Europe authorities routinely punish those who say or write things
that the Jewish community regards as offensive, but take no action against
those who offend Christian or Muslim sensibilities. Thus, in Germany and
several other countries, it's a criminal offense to say that Elie Wiesel
is a liar or that the Anne Frank diary is a fraud, but
perfectly legal to say that Jesus or Muhammad were liars.
"Holocaust denial" laws are the result of a well-organized, long-term
In 1982, the Institute for Jewish Affairs in
London, a London-based agency of the World Jewish Congress, announced that
it was launching a worldwide campaign to persuade and pressure governments
to outlaw "Holocaust denial."
The anti-revisionist laws that were subsequently
enacted in several European countries reflect the success of this
Underscoring the organized nature of this
campaign, the International Association of Jewish Lawyers and Jurists
in June 1998 called for new and more severe laws against "Holocaust denial."
Because Germany is trying to impose its "denial" statute beyond its own
borders, the Toben case has dangerous implications for online freedom of
expression everywhere. Everyone who cares about freedom of speech even
those who are outraged by Toben's views should be alarmed by Germany's
high-handed attempt to censor the World Wide Web.
Toben's extradition to Germany would establish a dangerous precedent.
Britain and other European Union countries would be obliged to turn over to
Germany anyone in any EU state, including visitors from non-EU countries,
who expresses dissident views on "the Holocaust" that are accessible on the
In the Zundel and Rudolf cases, German state prosecutors claimed the right
to prosecute persons for Internet "denial" postings on websites in countries
where such writings are legal. In the Toben case, German authorities are
asserting the right to punish even non-citizens for such violations.
German authorities claim the right to prosecute anyone anywhere for
expressing dissident views on "the Holocaust" that can be accessed online in
Germany, even when such expressions of opinion are entirely legal in the
country where they are posted, and regardless of the language in which they
As some observers have pointed out, Germany is trying to "legislate for the
entire world" by treating downloadable Internet material as a German
Nigel Farage, leader of the UK
Independence Party, said that while his party in no way condones Toben's
"not only has he not broken any UK laws, but
in seeking to arrest him, Germany is claiming censorship rights to
the entire Internet network."
The danger also exists that other countries,
citing the German precedent, may similarly seek to punish persons outside
their borders who post writings that violate their parochial notions of
permissible speech and writing.
Turkey, for example, could demand the
extradition and punishment of anyone in any European state who posts
online writings that violate the country's law that makes it a crime
to insult the Turkish nation.
Pakistan or Saudi Arabia could demand
the extradition and punishment of persons in Europe who post
writings or images that insult Islam.
China could demand the extradition and
punishment of persons who call for the independence of Tibet, or who
question the legitimacy of China's Communist Party.
It is difficult to believe that Germany would
allow other countries to punish its citizens on the same basis that Germany
insists on punishing anyone who violates its own "thought crime" law.
Germany's effort to impose its peculiar limits on free speech outside
its borders has potentially harmful consequences for Internet freedom of
Because the Toben case has such
far-reaching implications, people in many countries will be closely watching
how British authorities decide to handle Germany's extradition request.
For Further Reading
“Töben's arrest ‘fatally flawed', says
lawyer,” by J. Rozenberg. The Telegraph (London), Oct. 10 or
“Holocaust denier Fredrik Toben's trial
soon: prosecutor,” by P. Wilson. The Australian, Oct. 9 or
“British Parliamentarian Rejects
Extradition of 'Denier' Toben,” by Jonny Paul. The Jerusalem Post
(Israel), Oct. 7, 2008.
“Western Hypocrisy on the Holocaust,” by
Paul Grubach. Mehr News Agency (Iran), Oct. 7, 2008.
“Dr Fredrick Toben's Arrest Should Alarm
Us All.” The Telegraph (London), Editorial. Oct. 5, 2008.
“Breaking News from Freedom's Front
Line” [Toben arrest]. Telling Films (Britain), Oct. 3 or 5, 2008
“Australian Revisionist To Remain in
British Custody,” by A. Balakrishnan. The Guardian (Britain),
Oct. 3, 2008
“Toben Case Sets 'Dangerous Precedent',”
by Julian Joyce, BBC News, Oct. 3, 2008.
Banged Up, by David Irving. (Windsor,
England: Focal Point, 2008). Book in pdf format. 2008.
“German Holocaust Denier [German Rudolf]
Imprisoned for Inciting Racial Hatred” Deutsche Welle (Germany),
March 16, 2007.
“Ernst Zundel” [biographical profile]
Revisionists.com. Feb. 15, 2007.
“'Holocaust Denial' Laws are
Disgraceful,” by Mark Weber. Nov. 2005.
“The Importance of the Zundel Hearing in
Toronto,” by M. Weber. The Journal for Historical Review,
“Australia Orders Censorship of Toben
Website.” The Journal of Historical Review, Sept.-Oct. 2000.
“Fight Over Holocaust Denial,” The
Associated Press. International Herald-Tribune, June 29,
1998. Reprinted in: “What the Papers Say,” Justice, The
International Association of Jewish Lawyers and Jurists (Israel),
Spring 1999, p. 30.
“Jewish Group Demands More
Anti-Revisionist Laws,” The Journal of Historical Review,
July-August 1998, p. 22
“Who is Ernst Zundel, and Why is He in
Jail?,” by M. Weber. Sept. 2003.
“IJA Wants Holocaust Denial Law.”
Jewish Chronicle (London), April 23, 1982.
“Making the Denial of the Holocaust a
Crime in Law,” Research Report, Institute of Jewish Affairs
(in association with the World Jewish Congress), London, March 1982,