The Law of Holocaust Denial in Europe: Towards a (qualified) EU-wide Criminal Prohibition

A majority of EU countries have long considered that the right to freedom of expression precludes the criminalization of Holocaust denial per se. The full implementation of the 2008 EU Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law (hereinafter: the EU FD on racism) will, however, considerably harmonizes the law of Holocaust denial in Europe. While several provisions of the EU FD on racism offer a series of legal options enabling any EU country to limit the scope of national provisions criminalizing “genocide denial,” it remains that all EU Member States are now under the legal obligation to criminalize genocide denial when it is carried out either in a manner likely to incite to violence or hatred or in a manner likely to disturb public order or which is threatening, abusive or insulting. Before offering a critical review of the EU FD on racism and arguing that the political necessity of laws punishing genocide denial and the legal need for an EU-wide prohibition may be seriously questioned, this paper will contend that the legal reasoning developed by national courts in “militant democracies” is far from convincing and that the European Court of Human Rights should have refrained from labeling the Holocaust a clearly established historical fact whose denial constitutes ipso facto an “abuse of right”.