Thursday, 2 October 2008

Be very afraid

According to an article in The Independent newspaper, one Gerald Fredrick Töben, a “holocaust revisionist” was arrested yesterday (1 October) at Heathrow airport by officers from Scotland Yard’s extradition unit at the request of authorities in Germany. He will appear in court on Friday under an EU arrest warrant accused of committing offences in Germany, though in fact he had just arrived from the USA, and is an Australian citizen.

Now it may just be me, but I find this deeply, deeply, disturbing.

There is no doubt in my mind that the holocaust occurred pretty much as most people think — involving a systematic and deliberate attempt to exterminate the Jewish race in Europe, and resulting in the deaths of millions of Jews and others.

No one who has seen contemporary news footage can feel anything but horror, not just at Nazism, but at the human race, for what was perpetrated in a few short years. Nor can anyone who has read Mein Kampf, incidentally, have any doubt but that Adolf Hitler was a clear and deliberate anti-Semite who saw the Jews as being the root of Europe’s troubles.

To deny the holocaust is therefore unreasonable as well as unpleasant. But being unreasonable and unpleasant is not a crime. There are those (sometimes those who send comments to this blog) who think I personally am both. But surely so, too, is the denial of free speech.

We can hardly condemn the Nazis for burning books if we are a society which bans ideas. (Indeed I suspect that it is this very attitude which goads some people into the very attitudes they seek to ban.)

Moreover, there is undeniably a ‘slippery slope’ at work here. We should not forget what ought to be a notorious speech given by the Darwinist philosopher and scientist, Nicholas Humphrey, to the Oxford branch of Amnesty International in 1997, in which he argued that parents of certain religious persuasions which might question Darwinism ought not to be allowed “freedom of expression” with regard to their own children - in other words, I presume, that their children should, if necessary, be taken away from them.

There is no record that he was hissed, booed, or censured by his audience. Yet surely he should have been?

Similarly, we have seen in the last few days an eminent scientist levered out of his post in the Royal Society for saying something which was misquoted in the press.

What is truly frightening is the increasing silence which greets these pronouncements and actions. We have become a society which ignores the abuse of power when it is directed against those who are an easy target: the BNP-supporting teacher, the holocaust denier, the accidental ‘creationist’.

But the very fact that the innocent, such as Professor Michael Reiss, have already suffered should warn us things have gone too far. Moreover, we should surely take note of the fact that what some people warned against is happening before our very eyes, namely that you can now be arrested in this country for something which is not a criminal offence here, and which, in fact, is in accordance with a deeply held tradition, long exemplified by the existence of Speaker's Corner at Hyde Park, that no matter how daft your ideas, you should be allowed the freedom to express them. (There will be some who will observe that, nevertheless, certain expressions of ideas are illegal in this country. I would simply comment that this is not, in my view, generally a good thing.)

We have all heard the pious saying, “I disagree with what you say, but will defend to the death your right to say it.” Unfortunately, almost no one seems to want to step in when real harm might result to their own reputation.

Our cultural leadership have, it seems, learned the ‘Frank McGarahan’ lesson. He, you will remember, was the banker murdered when he intervened to help a Lithuanian being beaten up by some young men in Norwich. Sometimes ‘defending to the death’ means just that.

And maybe declaiming ‘Free Gerald Töben’ would be social suicide. Much better, surely, to wait til they pick on someone everyone agrees is innocent. But that, trust me, will never happen. First they will turn society against them. Then it will be safe to pick on them. After all, isn’t that just what they did with the Jews?

John Richardson
2 October 2008

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  1. I'm not for 1 moment denying the holocaust, but if the evidence is so strong, which I'm convinced it is (news footage, speaking to witnesses) then why aren't holocaust deniers just laughed at? What are they affraid of?

    Let's be straight, these people are not those who committed these acts. They just have a quirky view of history. One which we find offensive. Nobody takes them seriously, until they are arrested.

    Obviously it's a crime to have unpalatable views. The only problem is who is deciding on which views count. Many (most - it's all relative) of us here would be included

    Darren Moore

  2. There are several separate issues which led to this outcome. Some are more worrying than others and Töben of course has to take some responsibility in all of this.

    1) Germany having laws which criminalise holocaust denial
    2) Germany giving extra-territorial effect to those laws (even when committed by foreigners)
    3) Töben allegedly committing acts in breach of the German law against holocaust denial
    4) the UK being subject to the European Arrest Warrant procedure
    5) Töben travelling to a country (the UK) which can extradite him to Germany
    6) British police acting on the European Arrest warrant and arresting Töben.

    Personally (and as a lawyer) I think (1), (2) and (4) are all troublesome, but (4) is by far the most worrying.

    As objectionable as I find the actions of the holocaust deniers (eg Töben in (3)) I don't think holocaust denial should be a crime anywhere. But in Germany (among other places) it is and Töben has known that for a long time. He is therefore also partly responsible for getting himself in the mess he's now in. Given (1)-(3) Töben should have known to avoid travelling to Germany. After already spending some time in a German gaol I think he's smart enough to know that.

    Of course Töben travelled to the UK and not Germany and he still finds himself in hot water. That's why (4) -- the European Arrest Warrant (EAW) procedure -- is the most worrying aspect of all of this. Like most things in the EU it was sold with the idea of "streamlining" existing procedures. The existing extradition agreements between the member states needed to be made "more efficient" to catch the bad guys (terrorists, drug dealers, organised crime syndicates etc). Well some of that "inefficiency" in extradition proceedings was deliberately there in order to preserve the liberty of the accused. That has now gone out the window.

    The traditional approach to extradition relied on the principle of dual criminality -- that is, the acts alleged to have been committed had to be criminal in *both* countries. One thing the EAW did was abolish this for "32 serious categories of offences" (wording from the EU site for Justice and Home Affairs Interestingly that website lists some but not all of these 32 "serious" categories of crime and not surprisingly there is no mention whatsoever of the principle of dual criminality being abolished for thought crimes. Unfortunately I can't access the full text of the EU legislation -- every time I try I get the words "fatal error" -- but I'm sure that if you read the actual text of the EU legislation we would have to find Töben's thought crimes listed. Otherwise (as I understand it) there would be no way Töben could be the subject of an EAW.

    The fact that the EAW abolishs dual criminality for thought crimes -- and the fact that HM Britannic Government signed up to such a scheme -- is the most worrying thing about this whole sorry fiasco.

    Anyway, given (4) Töben would have been well advised to avoid (5) -- i.e. stay clear of any country subject to the EAW. If he's going to make statements he knows will fall foul of German law then he ought to do his homework about the law of extradition and work out which countries he can no longer safely visit. EU countries (even for the purpose of airport transit) are no longer safe for people accused of thought crimes.

    Of course saying that Töben should simply have avoided travelling to the UK is no comfort to the 60 odd million people who call the UK home. They have to live in a country which has abolished the principle of dual criminality for extradition on the basis of a thought crime. That's a very worrying situation.

    Given (1)-(5) the British police were right to do (6). They had no other choice so I don't blame them.

  3. From BBC News Dec 2005,

    "Iranian President Mahmoud Ahmadinejad has courted further controversy by explicitly calling the Nazi Holocaust of European Jewry a 'myth'."

    That man was recently given the podium at the U.N. to speak his nonsense. Of course that is not the same as shouting "Fire" in a crowded theater, but if spoken to post-war Germany, it would have been.

    I guess my question is this, should Germany change it's laws with regards to this matter given the amount of time that has past?

    The other question was answered by apodeitic in the negative because the warrant agreement, and that was, "Should Britain offer asylum to persons expressing freedom of speech who are condemned by their country of origin?" Remember Salman Rushdie.

  4. An excellent discussion and observation, John, of what many (dare I say majority?) feel, but are either too afraid or too apathetic to speak up about.

    That certain expressions of ideas are illegal in this country is clearly worrying in itself, and the idea of harm to reputation seems to me to hit the proverbially nail on the head. How much easier to keep one’s “status” intact than to rabble rouse for one’s true beliefs?

    Darren says “it's obviously a crime to have unpalatable views.”
    Obviously ? Incidentally, perhaps, but that does not make it correct to criminalise personal opinion, which I took to be John’s point.

    Should Germany change its laws with regards to this matter given the amount of time that has past? In my opinion pewster, yes, but that is for the German people and government to decide, not Scotland Yard’s extradition team,

  5. As an Austrian deeply affected in many ways by the Nazi regime in Germany and Austria I am conflicted on this subject.

    As has been pointed out, while Töben has now been arrested while travelling to the UK, he was arrested for actions committed in Germany where they are against the law (as they also are in Austria). And like others of his ilk it was not inadvertently that he broke the laws of Germany; rather, he travelled there for the express purpose of doing so.

    And the law does not prohibit holding the views Töben holds; it prohibits publicly advocating them.

    While I personally prefer a society where everyone can express any opinion they like, I (a) have some sympathy with both Austria and Germany wanting to erect a barrier to a repeat of that period of horror, and (b) suspect that if either country were to abolish these laws, the public in your country would be among those most worried and concerned, and even condemning us, for doing so. They, too, would talk of the slippery slope we have entered by doing so.

    Wolf Paul
    Vienna, Austria

  6. As well as my initial comment here, I have posted on this on my own blog. But I would like to respond to Wolf Paul's comments.

    I really do understand your sympathies. As an Australian I have lived in Germany and have also spent a lot of time in Austria. My time in these countries as well as my knowledge of the language (and many good friends and fine Christian brothers and sisters in these countries) probably gives me a better understanding of the situation in these two countries than most Australians. Given their respective histories I fully understand why Germany and Austria have taken the course of action they have. I don't ever want to see the terrible tragedy of the holocaust downplayed or forgotten. So on that level I am at one with those wanting to criminalise holocaust denial. I agree with the end but strongly disagree with the means. I don't think we should be putting people in gaol for denying the holocaust. That is not the response of a "Rechtsstaat".

    Having said that I fully respect the right of Germany and Austria as sovereign states to criminalise holocaust denial and the requirement for foreigners who travels to these countries to obey their laws. So if Töben went to Germany and publicly denied the holocaust then he only has himself to blame if he is arrested in Germany and tried in Germany.

    But that's not what happened in this case and I have two fundamental objections to what happened here:
    1) Although the Germans are alleging actions by Töben both within Germany and outside of Germany, as I understand it the German law has extra-territorial effect which means that if Töben had never been to Germany but only made the offensive statements in Australia then he would still be in breach of German law and subject to extradition from the UK to Germany. What do you think about that? Should that be a criminal offence in Germany or Austria?
    2) As I wrote about extensively in my first reply and also my own blog post I strongly disagree with the abolition of the requirement of dual criminality (Doppelstrafbarkeit) with respect to extradition for holocaust denial. Under this principle if Töben goes to Germany or Austria he can be arrested and tried, but if he comes to the UK he cannot because his behaviour would have been lawful in the UK. If Töben sets foot in a country where holocaust denial is a crime then you can extradite him to Germany. But not until then.

    So yes I object to the German law (but sympathise with the reasons behind it). But far more objectionable are (1) its extraterritorial effect and (2) the abolition of the requirement of dual criminality
    in cases of holocaust denial.

    David Tomkins,

  7. Dear Lexia

    You wrote that one 'Madeline' had written to you saying claiming I am not accepting their comments because I don't like to be challenged.

    In point of fact, I do not post comments from the person going under the name of Madeline Bassett because they have been repeatedly abusive, despite attempts to engage more cordially with this individual.

    "Madeline Bassett" is also the name of a character from PG Wodehouse, and therefore may be a pseudonym, nor has this person ever complied with requests to provide a location, which I encourage people to do.

    I will continue automatically to reject all comments from this source.

  8. Thanks John for your info.Apologies for posting the comment to you, but I felt it had a bearing on my own comment which I am sure you appreciated in my reply.