Douglas Lawrence. History and Memory. Volume 7, Issue 2. Fall 1996.
The 1985 trial of Ernst Zündel placed an unusual question before a Toronto jury: did the Holocaust actually happen? Zündel, who had made a small fortune in Canada as a photo retoucher for mass circulation magazines (his work had twice received awards from The Art Directors’ Club of Toronto), had arranged for the publication of Did Six Million Really Die?, a pamphlet that alleged that the Holocaust was a Zionist hoax. Charged with violating a little-used portion of the Canadian Criminal Code prohibiting the publication of false statements “likely to cause injury or mischief to a public interest,” Zündel turned his trial into a small media circus, arriving at court each day in a flak jacket and hard-hat emblazoned with the words “Freedom of Speech.”
Yet more noteworthy than the defendant’s courtroom histrionics was the case’s odd procedural profile. Because the indictment charged Zündel with knowingly publishing false statements, the court reasoned that it was incumbent upon the prosecution to prove the falsity of Zündel’s Holocaust denials. Though courts commonly take “judicial notice” of the truth of certain “notorious” and accepted facts, the trial judge reasoned that taking such notice of the Holocaust essentially would have relieved the prosecution of its burden of proving guilt. The Crown, as a consequence, was thrust into the peculiar position of having to prove—in accordance with legal conventions of proof and evidence—that the Holocaust in fact occurred, a discomfiting position to occupy in a trial meant to demonstrate that certain statements are so beyond the pale of legitimate dispute as to justify the imposition of criminal sanction.
Notwithstanding the unusual, perhaps unseemly evidentiary questions placed before the court, the Zündel trial provocatively captures the changing terms of the law’s engagement with the Holocaust. The spectacular trials staged about Nazi atrocities—the first Nuremberg trial in 1945-1946, the Eichmann trial in 1961 and the Barbie trial in 1978—were all centrally concerned with the problematic of responsibility: how could the conventional idiom of the criminal law accommodate the extreme evil of genocide? Half a century after the commission of the original crimes, the need to punish the perpetrators diminishes—for reasons less moral than actuarial. Yet the gradual dying off of the perpetrators does not signal the end of legal struggles to do justice to the Holocaust. As the Zündel case suggests, the problem that the Holocaust poses to the law today is less one of assigning responsibility than one of preserving responsible memory. The law has been enlisted in the project of safeguarding historical truth.
Yet the Zündel case does more than merely exemplify the changing nature of the law’s engagement with the Holocaust; it also poses in stark terms the question that will animate this essay: is the law adequate to the task of securing the history of the Holocaust in responsible memory? The answer, I believe, is no, and finding my examples in Germany, France and Israel, before returning to the Canadian Zündel case, I will argue that the efforts to use legal means to safeguard the history of the Holocaust may contribute to distortions of the very historical record that the law has been asked to defend.
Prominent among recent legal efforts to safeguard the history of the Holocaust is the rise of statutes criminalizing Holocaust denial. While such laws run afoul of free speech jurisprudence in the United States, other Western democracies have demonstrated less discomfort with using the coercive arm of the law to proscribe hateful distortions of the historical record. Consider the law passed by the Federal Republic of Germany in 1985 to staunch the rise of rightist and neo-Nazi disputations of the death camps. The statute, known as the Auschwitzlüge or “Auschwitz-lie” Law, criminalizes claims that the Holocaust was a phantasm of the Zionist imagination. Based on the theory of criminal libel, the law treats Holocaust denial as an insult (Beleidigung) punishable by up to one year in prison. The 1985 law, however, did not pioneer the concept of criminal libel in German jurisprudence. Instead, it modified the existing law to enable the state, on its own, specifically to punish Holocaust denial. Prior to these modifications, the old statute functioned as an interesting hybrid of civil and criminal law, relying upon the insulted individual—the person who had putatively suffered the legal harm—to petition the state to initiate criminal proceedings against the alleged insulter. This arrangement, however, had begged the question: who, within the meaning of the German law, could claim to be insulted by denials of the Holocaust?
The answers that German courts had supplied were problematic at best. A 1979 case, for example, posed the question whether a German citizen with one Jewish grandfather could petition the state to prosecute a man who had publicly posted a leaflet attacking the Holocaust as a Zionist swindle. The Bundesgenchtshof (Federal Court of Justice) concluded that the man could bring an insult claim because, though not a “full Jew,” he would have been classified as a second-degree Mischling (mixed breed) according to the notorious Nuremberg laws of 1935, and thus subject to considerable discrimination. Extending this mode of analysis, a 1985 appellate court acquitted a defendant because the petitioner was neither a Jew nor a Mischling and therefore could not claim to be offended by the words of a Holocaust denier. Yet the unseemliness of applying the very Nuremberg laws that paved the way to the Holocaust to decide who may legally claim to be insulted by Holocaust denials, did not signal an idiosyncratic failing of the German courts. The notion of legal harm, the concept through which the law structures its institutional capacity to redress social wrongs, inevitably thrust German courts into the position of having to decide who could legitimately claim to be insulted for the purposes of the statute.
The 1985 law solved this problem by abolishing the requirement of the private petitioner, authorizing instead the state to initiate criminal prosecution ex officio. By placing the state in the position of the complainant, the statute seemed now to recognize that Holocaust denial insults not only Jews as “a group singled-out by fate,” but the German state itself and its historical record. Indeed, the new law seemed to commit the state to using its coercive power to preserve a singular historical truth. To deny the Holocaust was now to violate a criminal statute.
The wisdom of using state force to sanction denials of the historical record, however, has not escaped scholarly and judicial challenge. The terms of these challenges are, in a sense, familiar: die stability of the distinction between facts and interpretation has long been subject to academic debate within liberal jurisprudence. In the hands of figures such as Ernst Nolte, a controversial right-wing scholar associated with the German Historikerstreit (historians’ debate) of the last decade, these arguments have been enlisted against the Auschwitz-Lie Law. Arguing that the Final Solution found ample precedent in Stalin’s gulag, Nolte has attacked the Auschwitz-Lie Law not because he denies that the mass killings of Jews took place in World War II, but because he objects to the Law’s implicit interpretation of these facts—that is, that such killing was so unique and unprecedented that its memory deserves special judicial protection. Such a law, Nolte fears, might silence not only Holocaust deniers, but also the work of “legitimate” scholars who question the dogma of the Holocaust’s uniqueness.
If the fact-interpretation colloquy sounds a bit suspect in the context of discussions of the Holocaust—concealing, perhaps, less theoretical objections to the law—more interesting is the idea that by legislating against the Auschwitz-Lie, the German state seems committed to the position that the sole foundational truth deserving the protection of its legal/coercive apparatus should be the fact of the state’s own criminal past and lawlessness. Derrida, following the lead of Weber and Benjamin, has detailed the complex ways in which states buttress their claims to legitimacy through acts of forgetting—rituals of erasure that obscure any connection to the state’s foundational moment, inevitably a time of violent, lawless instantiation. By contrast, the German Federal Republic attempts to redeem its claims of legitimacy through an act of coerced remembering, in which the history of past crimes remains ever present and in which the law serves as the muscle of memory. The German law demands that no one deny the state’s monstrous past.
Yet this very reliance upon the law to police responsible memory serves both to connect the present German state to its past incarnation and to sever such ties. For the state’s very candor in admitting past transgressions appears as a legitimating virtue; and the law that proscribes insults to the historical record, by adopting a posture of obsessive mindfulness of the past, also serves to create a gulf that separates the present state from its reprobate precursor. In its final form, however, the Auschwitz-Lie Law came to proscribe more than simply Holocaust denial. Opposed by the Christian Democrats, the senior party of the ruling coalition, the bill was subtly changed in committee to win support among the government’s conservative flank. In its altered and approved form, the law now criminalizes two distinct statements of denial: those that deny the Nazi death camps, and those that deny the forced expulsion of “ethnic” Germans from the formerly German provinces of Poland at the war’s conclusion. The law thus equates the destruction of European Jewry with the forced migration of Silesian and East Prussian Germans. As grotesque as this may seem, it is in a sense predictable. For once the state views itself as harmed by representations of the past, then the laws used to police these representations will tend to reveal more about the state’s own sensitivities than about the history it seeks to protect. When the state supplants the survivors as the object of legal harm, it should come as no surprise that the very legal instrument originally meant to protect the survivors from “insults” to the historical record should itself become a source of fresh insults.
Germany, however, is not alone in the effort to use the law to silence the voice of Holocaust denial. France, for example, passed a law in 1990 making it a crime for anyone to contest “the existence of one or several crimes against humanity as defined in Article 6 of the Statute of the International Military Tribunal….” The International Military Tribunal was the official name of the court that presided over the Nuremberg Trial of the Major War Criminals; Article 6 of the Tribunal’s Charter (the “London Charter”) defined crimes against humanity to include:
Murder, extermination, enslavement, starvation or deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal.
By proscribing denials of the very crimes condemned at Nuremberg, the French law seems drafted with greater specificity and precedential force than the comparable law in Germany. Unfortunately, however, Article 6 of the London Charter offers a less capacious definition of crimes against humanity than the text suggests. While the words “before or during the war” imply that the Nuremberg court enjoyed a broad power to condemn Nazi crimes, a reader of the original document finds his eye drawn to an asterisk after the word “war” and to the laconic accompanying footnote, the only explanatory note in the entire text of the Charter: “Comma substituted in place of semicolon by Protocol of 6 October 1945.”
The consequence of this seemingly minor last-minute substitution was that the first clause of Article 6 was placed under the control of the last: “… in connection with any crime within the jurisdiction of the Tribunal.” This was crucial, as the court concluded that only crimes involving the “planning, preparation, initiation or waging of a war of aggression” were “within the jurisdiction of the Tribunal.” The Tribunal, as a result, had no authority to condemn murder, extermination, etc., if committed unconnected to the “war of aggression.” The Allies’ worries that too robust a concept of crimes against humanity would supply a potentially unattractive precedent for challenging a sovereign’s control over its own domestic population found voice in a provocative example of the power of diacritics. The idea of jurisdictional competence—the notion that a court’s authority to pronounce judgment is restricted geographically, conceptually and by the knowledge that its present decisions may bind future adjudication—thus led the Nuremberg Tribunal to understand the Holocaust essentially as the horrific consequence of a war of aggression.
The record of the French prosecution at the Nuremberg trial only underscores the ironies produced by the 1990 French law. Responsible at Nuremberg for presenting evidence of war crimes and crimes against humanity, the French neglected to include the annihilation of European Jewry as one of the Nazis’ principal offenses. Indeed, the only mention of Jews in the entire French case was prosecutor de Menthon’s statement:
It is also well known that racial discriminations were provoked against citizens of the occupied countries who were catalogued as Jews, measures particularly hateful, damaging to their personal rights and to their human dignity.
Thus, the recent French law, if read in the light of the French case presented at Nuremberg, would not even touch Holocaust denial, as the extermination of the Jews was not, judging by the evidence submitted by the French prosecution, one of the “several crimes against humanity as defined in Article 6 of the Statute of the International Military Tribunal…”
A 1992 Austrian statute that makes it a crime if a person “denies, grossly trivializes, approves or seeks to justify the national socialist genocide or other national socialist crimes against humanity” raises similar problems. While Austrian courts have not yet parsed the meaning of such potentially fraught language as “grossly trivializes” (grosslich verharmlost), one could make the case—not entirely facetiously—that such a law could make actionable the performance of the respective prosecutorial teams, particularly the French, at Nuremberg. The crime of “genocide,” coined in 1944 by Raphael Lemkin, an Adviser on Foreign Affairs in the US War Department, to describe the systematic annihilation of European Jewry, is specifically named in the Nuremberg indictment under “War Crimes,” but the word is never uttered at the trial itself. The trial’s most spectacular testimony regarding the Final Solution—the testimony of Rudolf Hoss, former commandant at Auschwitz—is supplied by a witness not for the prosecution but for the defense: the defense called Hoss for the purposes of establishing that the existence of centers of extermination was a well-concealed fact, unknown even to the senior members of the Nazi command on trial at Nuremberg.
The most sustained discussion of the annihilation of Jews is presented by the Soviet and American prosecutors, but even here certain omissions and distortions remain notable. In a revealing slip, Smirnov, a Soviet counsel, speaks of the “excessive antiSemitism of the Hitlerite criminals.” Not only does Smirnov imply that a measure of anti-Semitism may be normal; more crucially, he suggests the Holocaust can be understood as an “excess,” an uncontrolled outpouring of the same violent impulses that directed the Nazis’ brutal war effort. This reasoning echoes Robert Jackson’s opening statement for the prosecution, in which the Final Solution is portrayed as an expedient of “aggressive war,” the chief crime for which he argued the Nazi leadership could and should be held responsible. Following the Allies’ restrictive definition of “crimes against humanity” in Article 6, Jackson viewed Nazi genocide as a dreadful though ancillary transgression, a consequence of belligerent militarism.
One can, of course, claim it is unfair to condemn prosecutorial teams, burdened with shaping a vast amount of evidence into a complex juridical case in a short period of time, for failing to be fully attentive to the crimes against the Jews. Yet the failure of the Nuremberg trial adequately to address the Nazis’ most spectacular crimes was not simply an example of overtaxed prosecutors revealing the same indifference to the fate of the Jews that the Allies had shown during the war. A marginalizing of the Holocaust was in some sense the inevitable result of a juridical effort whose aim was to articulate a novel theory of jurisdiction that would legitimate the punishment of aggressive militarism.
The Eichmann trial, by contrast, importantly corrected this defect, as it supplied a harrowing, moving and remarkably complete record of the Nazis’ largely successful effort to annihilate European Jewry. The juridical narrative which explained these crimes, however, has not escaped sweeping critique. Hannah Arendt’s Eichmann in Jerusalem, the most influential of these statements, documents the strenuous, and in her mind misconceived, attempts of the Israeli prosecution to render the Holocaust judicially manageable by creating a narrative of extreme human malignancy. Arendt argues that the Israeli prosecution and court could not accept what she believes was the most unsettling aspect of Eichmann’s defense: that he organized acts of genocide out of a spirit of law-abidingness. By treating Eichmann as a liar and casting him as a monster, the court was able to preserve the concept of mens rea upon which the criminal law remains largely predicated—the idea that all serious criminals have moral knowledge of the illegality of their acts. This story, Arendt argues, failed to perceive the deeper, more sinister lesson of the Holocaust: that a vast apparatus of death could be administered by a group of unimaginative, craven, but not particularly cruel, bureaucrats.
The banality of evil thus can be understood to describe a bureaucratic and a legal phenomenon. Organizationally removed from the mass killing they sanctioned, functionaries such as Eichmann could claim to have participated in the Final Solution out of a feeling of legal obligation. So conceived, the Holocaust could be viewed as the perfection, rather than the perversion, of legal positivism—the idea that the legitimacy of a legal command derives from its status as law, and not from any underlying normative content. One need not, of course, accept the full sweep of Arendt’s critique; yet, it frames the difficulties of using the law to sanction misrepresentations and trivializations of the Holocaust, when one can plausibly argue that the law itself was an accomplice to the act.
This line of argumentation, however, invites an immediate and stern rejoinder: there is, after all, a critical difference between failing to represent the Holocaust fully and hatefully denying that there is anything to represent. Until now all I have argued is that certain common elements of Western legal discourse—the concept of harm, the notion of jurisdictional competence and the theory of criminal wrongdoing—have compromised legal efforts to do justice to the meaning and nature of the Holocaust. Yet the failure of the law to locate an idiom adequate to the task of comprehending Nazi crimes does not necessarily supply a reason for eschewing the law as a tool for punishing outright denial. Indeed, one could argue that because the Holocaust resists efforts to secure its central horror in conventional idioms (a problem that, as scholars such as Saul Friedlander, Geoffrey Hartman, Lawrence Langer and James Young have shown, plagues not only the law, but history, theology, philosophy, literature, the visual arts, etc.), this redoubles the need to establish parameters of the plausible. If we cannot fully express what the Holocaust was and meant, then perhaps we can at least establish what remains beyond the pale.
Yet just as the efforts to proscribe Holocaust denial bring the law into contact with its own troubled attempts to do justice to the Holocaust, the actual writings that such laws seek to criminalize present the law with a disturbing mockery of its own elaborate, at times bizarre, conventions of truth. For the arguments of Holocaust “revisionists” powerfully evoke the rhetoric of attorneys practiced in the art of adversarial litigation. Many deniers, of course, simply engage in the hysterical vituperative of undisguised hate speech. By questioning the capacities of gas chambers and the crematoria, such deniers simply recapitulate the very logic of the Nazis, as genocide is taken from a moral or ontological plane and reduced to a matter of technical feasibility. Yet the more notorious of these revisionists have demonstrated if not a subtlety of argument, then at least an annoying brand of tenacious speciousness suggestive of the arguments of counsel in a trial setting.
While one can understand the reluctance of serious academics to study the structure of deniers’ arguments, Pierre Vidal-Naquet’s Assassins of Memory offers a fascinating reading of the subversive hermeneutics of revisionists such as Serge Thion and Robert Faurisson (the latter, formerly a scholar of French literature). Among the several principles of argument and interpretation that guide revisionist work, Vidal-Naquet specifies the following: First, any direct testimony contributed by a Jew is considered a lie (the perjurious testimony of a partisan witness) or a fantasy (the unreliable testimony of one who has suffered a war trauma). second, any document that offers firsthand information concerning the methods of the Nazis is dismissed as forged or in some sense bogus (the prosecution has tampered with the evidence). Third, any Nazi document written in coded language is read literally, while any document written plainly is under—or overinterpreted. Thus, terms such as Umsiedlung and Sonderbehandlung are read literally as “resettlement” and “special treatment,” and not as code words for annihilation; while das Lager der Vernichtung, words that appear in a diary of an SS doctor at Auschwitz, are read as referring not to a “camp of extermination,” but to a camp visited by a typhus epidemic.
These strategies can, of course, be dismissed as predicated upon mutually exclusive principles of reading and violative of what Francis Lieber, an early theorist of both legal interpretation and international law, identified as the first principle of legal hermeneutics: reading in good faith. Vidal-Naquet himself asserts that these interpretive strategies are born, or at least exploitative, of the renegade hermeneutics of poststructuralist critics (and here he finds Faurisson’s career as a literature scholar instructive), but I would claim that the arguments of revisionists are less suggestive of Paul de Man than of American attorneys Johnnie Cochran and Robert Shapiro. Indeed, Vidal-Naquet’s analysis of the structure of revisionist arguments strongly indicates the way such works fix upon legalistic standards of proof as the preferred method for evaluating historical truth. The adversarial criminal trial, and the rules that control the submission of evidence in this setting, are held out as models of open discourse and truth-seeking inquiry.
The model is clearly inappropriate. Criminal justice, in both Anglo-American and continental contexts, has long been dedicated to values such as protecting the dignity and autonomy of the accused that may actually disable the pursuit of truth in a particular case (thus, to take an example from American law, the “exclusionary rule,” which suppresses the use of highly relevant evidence if illegally obtained, subordinates truth to other goals). By casting the trial as a truth-seeking device, the revisionists are thus able to present the most tendentious and partisan hyperbole as a proper contribution to public debate and historical instruction.
Indeed, the very distinction between Holocaust revisionism and zealous adversarial advocacy vanishes in the statement of Jacques Verges, who served as Klaus Barbie’s defense attorney at the 1978 Lyon trial: “Barbie was not a Nazi. What is a Nazi? We are all Nazis….” The statement recalls Freud’s famous example of the response of the defendant accused of breaking his neighbor’s tea kettle: “The defendant asserted first, that he had given it back undamaged; secondly, that the kettle had a hole when he borrowed it; and thirdly, that he had never borrowed a kettle from his neighbor at all.” But while Freud uses his example as a trope for the overdetermination of the psyche’s pleas for innocence, Verges’ statement aims at global incrimination, seeking less to acquit the specific defendant than to sweep the accusers under the pall of guilt.
Verges’ statement calls attention to a final similarity between trial advocacy and revisionist rhetoric. Like the defense counsel in a criminal trial, the revisionist is less interested in proving the Nazi state innocent of systematic extermination than in tainting the accuser and in planting seeds of doubt about the Holocaust through a systematic campaign of radical skepticism. Indeed, revisionists in the United States have mastered the technique of dressing up such arguments in the rhetoric of the First Amendment, claiming that they seek not to silence or foreclose dialogue, but to subject the historical understanding of the Holocaust to “robust scrutiny” and “open debate”—the very catch phrases that lie at the heart of liberal defenses of free speech. Thus, by making actionable the lies of the revisionists, Holocaust denial laws seek to punish those who have mastered the law’s own rhetorical strategies and doctrinal pieties.
Because revisionists often strategically exploit legal styles of argumentation, the very norms that control adversary criminal justice render the law an extremely awkward tool for punishing revisionists. This point gains support by a consideration of the case I mentioned at the beginning of this essay, the 1985 Canadian trial of Ernst Zûndel for publishing tracts denying the Holocaust. As the case required the Crown to show that Zûndel’s denials of the Holocaust were in fact “false,” the Canadian trial court found itself functioning as a tribunal burdened with determining the truth of the Holocaust according to legal conventions of proof and evidence.
This made for several unseemly problems. First, Anglo-American jurisprudence’s bar against “hearsay” testimony (that is, testimony in which a witness describes as fact events that he has not personally observed but that have been reported to him by a third party unavailable to the court) rendered many Holocaust narratives either unavailable to the trial or available only through evidentiary loopholes. When Zündel appealed his conviction, the Canadian appellate tribunal had to decide whether the testimony of Raul Hilberg, the eminent Holocaust historian, had been improperly admitted during Zündel’s trial. While the appellate court conceded that Hilberg’s testimony was technically hearsay, it reasoned that exceptions to the hearsay rule “are based upon (a) necessity, and (b) the circumstantial trustworthiness of the evidence to which the exception applies.” Here the criterion of necessity was satisfied, as the question whether the Holocaust ever occurred had to be demonstrated by the Crown to sustain its burden of proving the guilt of the accused. The turn to expert—that is, hearsay—testimony was further necessitated, the Court reasoned, by the unlikelihood that “living witnesses could be obtained”:
The events sought to be proved by Dr. Hilberg’s opinion occurred more than 40 years ago, and while there are survivors of the Nazi concentration camps, some of whom were called as witnesses, it is unlikely that living witnesses responsible for formulating the policy of the Nazi government or carrying out the policies in relation to the events alleged, could be obtained.
Although survivors could offer eyewitness accounts about conditions in specific camps, presumably they could not, for example, offer first-hand testimony about what happened at the Wannsee conference. Thus the court concluded that it had to rely on expert/hearsay testimony for proof of the deeper architecture of the Final Solution.
Hilberg’s work also satisfied the second criterion of trustworthiness as it was based upon “material to which … any careful and competent historian would resort.” Yet the notion that such historical studies can be admitted only as hearsay exceptions vaguely echoes revisionist arguments and carries the further suggestion that the very facticity of the Holocaust will diminish as eyewitnesses die off. The court’s discussion thus captures the temporal vulnerabilities of litigation that remains dependent, for its legal adequacy if not its normative force, upon the testimony of survivors.
This observation is strengthened by the fact that the court permitted the defense to respond to Hilberg’s expert testimony by calling its own experts, in this case the notorious Faurisson. Faurisson’s certification as an expert witness by the court was not lost upon revisionists, who later publicized the judicial recognition that implicitly had been conferred upon one of their ilk. This circumstance remains, then, exemplary of a larger phenomenon, as the formal evidentiary agnosticism of adversarial jurisprudence may have the ironic effect of contributing to the erosion of the very boundary between truth and fiction that the law attempts to police.
Consider as well the court’s conclusion that a United States Army documentary film (compiled by the Signal Corps under the direction of George Stevens, the respected Hollywood director) chronicling the liberation of Nazi concentration camps in the west had been improperly shown to the jury at Zundel’s trial. Because the nameless screenplay writer and narrator were unavailable for cross-examination, the documentary failed under rules of hearsay. Although the film had been shown at Nuremberg as one of the centerpieces of the prosecution’s case and ostensibly produced direct visual information about the depicted historical event,87 the court concluded that because the makers of the narrative were not present for adversarial confrontation at the time of the film’s screening at Zundel’s trial, the film could not be accepted as a trustworthy window upon the disputed event (and here Zundel’s successful career as a photo retoucher creates discomfiting resonances). Despite the testimonies of Hilberg and the survivors, the admission of the Signal Corps documentary, along with other procedural defects in the original trial, led the court to toss out the original conviction.
Zündel was retried from midjanuary until early May 1988. The judge in the second trial agreed to take judicial notice of Nazi genocide, directing the jury to accept that “the mass murder and extermination of Jews in Europe by the Nazis during the second World War is so notorious as not to be subject of dispute.” The judge did not, however, “take judicial notice of the facts alleged in the appellant’s pamphlet.” Indeed, as Zundel’s attorney argued in his final address to the jury, the judge’s instructions did not necessarily contradict his client’s thesis:
His Honour will tell you what he says is reasonable for reasonable men to contest. But it won’t include the six million, it won’t include the gas chambers and it won’t include an official plan. That’s basically what this book is all about.
These arguments notwithstanding, Zündel was found guilty in the second trial and sentenced to nine months in prison.
His legal odyssey, however, had not reached its end. In 1992 the Canadian Supreme Court declared unconstitutional the section of the Criminal Code under which Zündel had been convicted—the section that proscribed the publication of false statements likely to cause mischief to a public interest. Against a vigorous dissent, the majority reasoned that the statute was unconstitutionally overbroad, as it relied upon “concepts as vague as fact versus opinion or truth versus falsity in the context of history.” The Court thus accepted the instability of the distinction between fact and interpretation that rightist scholars have used to attack the Auschwitz-lie Law in Germany. Specifically, the Court questioned the institutional competence of juries and judges to distinguish between truth and falsity:
A given expression may offer many meanings, some of which seem false, others, of a metaphorical or allegorical nature, which may possess some validity. Moreover, meaning is not a datum so much as an interactive process, depending of the listener as well as the speaker.
Even a publication as crude as Zündel’s, the Court argued, “illustrates the difficulty of determining its meaning” as the text may stand for the idea “that the public should not be quick to adopt ‘accepted’ versions of history, truth, etc.” While the Court here seems to confuse significance and meaning, an important distinction in certain hermeneutic circles, it also reveals itself to be less concerned with the truth of the Holocaust than with the legitimacy of the law. Concerned as it must be with precedent, the Court treats the Holocaust in precisely the fashion rejected by so many scholars—as just another historical event about which unpopular claims can be made. As a consequence, the Court does not bother to ask whether the law might protect the history of the Holocaust from distortion; instead, it decries the statute as itself Hitlerian in its control of speech. By making possible conviction “for virtually any statement which does not accord with currently accepted ‘truths’,” the challenged law could be used, the Court warns, in a manner akin to “totalitarian states like the Nazi regime in Germany.”
The Court’s conclusion that the statute was unconstitutionally vague and overbroad does not mean that a law drafted with the specificity of the German, French or Austrian laws might not pass constitutional muster. Yet as I have tried to suggest, the problem with using the law to proscribe Holocaust denial is not, as free speech advocates would argue, that one runs the risk of silencing speech that one should protect. As the Zundel case exemplifies, at the same time that the law intervenes to protect the Holocaust from the charge that it is all falsehood, its evidentiary constraints and concerns with its own legitimacy may demand that it approach the past from a position of formal agnosticism—a circumstance that may lead to the erosion of the very distinction between historical fact and falsehood that the law has been asked to support.
In his parable “The Witness” Borges writes: “There was a day in time when the last eyes to see Christ were closed forever.” Fifty years after the liberation of the death camps, Borges’s words find a grim inversion: in the not-too-distant future, the last eyes to have seen Auschwitz—from the inside—will close forever. Their closing, however, will not bring to an end the law’s troubled attempts to find an adequate response to the extermination of European Jewry. Half a century after the first juridical effort to condemn these crimes, the law still struggles with their legacy. But the memory that haunts legal efforts to police the bounds of Holocaust representations is not simply the lingering evidence of crimes that have never been adequately comprehended by the law. Efforts to proscribe Holocaust denial remind us that the legal grammar of harm, jurisdiction, culpability and proof may permit the law to order a social world effectively, but not to speak reliably on behalf of that world’s most difficult histories and most traumatic memories.