Criminalising Holocaust Denial in 1971

'The Holocaust' is one of the most disparaging words that emerged during the Second World War, where the German Nazis killed Jews brutally and systematically. However, when one removes the article 'The' and generally uses the word 'Holocaust', we go back to the literal meaning as per the Oxford Dictionary. 'Holocaust' means 'an occasion of great destruction, especially by fire, and great loss of human life'. Throughout human civilisation we have witnessed such atrocious desecration of these fundamental human rights, which are also violation of the sacred right to life, liberty and personality by our fellow Homo sapiens. Yet it is apparent that there are people living within society who blatantly deny such brutalities and further substantiate such denial by using the Goebbelsian theory of lies. However, various European states have adopted legislation criminalising such denial of 'The Holocaust'. From noted British historian David Irving to London Mayor Ken Livingstone who either completely or partially denied the mass massacre of Jews at the time of World War II, many have been punished or admonished under the law.

Paradoxically, in Bangladesh where nearly three million people were brutally murdered, almost two hundred thousand women were raped, and hundreds and thousands of people were tortured and displaced by the then West Pakistani military officials along with some Bangladeshi (then East Pakistan) perpetrators during 1971, there is still a group of people within Bangladesh, in disguise of some political parties, who deliberately deny the genocide of 1971. The government has already taken legal initiative to prosecute the war criminals and perpetrators under the International War Crimes Tribunal 1973 and arrested and convicted a number of war criminals for committing crimes against humanity during the Liberation War. But the question remains, can we adopt law or legislation like in various European countries, which would criminalise the denial of the 1971 holocaust. Holocaust in 1971 was not merely a 'democide' as it is depicted by the leaders of some particular political parties, but was a Genocide committed by the then West Pakistani army along with its collaborators.

However, problems may occur when such denials of a historical fact takes the form of 'freedom of expression' or 'the right to hold an opinion'. There is no doubt that free speech is one of most pertinent fundamental human rights in an egalitarian society.  Since the inception of all the major international human rights instruments, free speech is considered to be a means of enriching and expanding the scope of life itself. Nevertheless, freedom of expression also carries certain obligations within its ambit, as it is not an absolute right. In the international scenario, if we analyse the words of Article 19 of the Universal Declaration of Human Rights which guarantees 'the right to freedom of opinion and expression', it is not an unlimited right as Article 19 is restricted. Further, Article 19 (1) and (2) of the International Covenant on Civil and Political Rights confer freedom of expression in a broader way. Nonetheless, Article 19(3) of the ICCPR 'carries with it special duties and responsibilities'. Under Article 19(3) such restrictions shall be such as are prescribed by law and necessary 'for respect of the rights and reputations of others and 'for the protection of national security or public order (order public), or of public health or morals'. Similarly, if we look at the regional human rights instruments, freedom of expression always carries some duties in order to establish proportionality between rights and restrictions. Rights should not be exercised in a malicious manner that abrogate as well as offend the rights of another. Similarly, Article 39 of the Constitution of Bangladesh also confers right to freedom of expression to every citizen of the country. However, Article 39 is a qualified right which carries certain obligations and restrictions with an object to preserve the rights along with some duties towards other fellow citizens.

we look at the European milieu, most of the countries have adopted legislation which criminalised denial of 'The Holocaust', specifically the meticulous elimination of the Jews by the Nazis. In Europe, legislation making denial of 'The Holocaust' a criminal offence is not part of its broader based legislation making it a misdemeanour to refute other crimes or other instances of genocide. In Europe it is not an offence to deny the historical facts of the mass killing in Cambodia by Polpot, atrocities done by various war lords in some African nations, or in Bosnia, purges of Stalin and Mao, and yet more people were massacred under those regimes than under the Nazi regime. 'The Holocaust' denial is often accompanied by the assertion that the historical account of 'The Holocaust' is a Jewish fabrication for financial gain. In 1990 the British Holocaust denier, David Irving, was fined DM 30,000 for denying that Jews had died in the gas chambers at Auschwitz. He had described the buildings which are now visible at Auschwitz as "great dummies for which the German state had paid a fine of sixteen million Deutschmarks." His appeal against conviction was quashed by a Munich court in 1993 and his original fine was trebled.

In Bangladesh it is often argued and alleged by some political leaders who are associated with some religion-based political parties that there was 'no genocide' or liberation war in East Pakistan in 1971, rather it was a year of chaos/separatist movement by some misguided persons of the then East Pakistan. Further, they also claim that the number of casualties in 1971 as known by whole world is merely a 'democide' rather 'genocide'. During the liberation war of  1971 the West Pakistan army in collaboration with some East Pakistani perpetrators like the Jamat-e-Islam, the Islami Chatra Sangho (currently renamed Islami Chatra Shibir) and their militant killing squads; the Razakar, the Al-Badr, the Al-Shams and the Shanti Bahini tried their utmost to apprehend and kill those who demand a 'sovereign and independent Bangladesh'. The West Pakistan army systematically killed the unarmed people of the then East Pakistan in the name of Islam over a period of 9 months, 3 million people were reportedly killed, 2 million women were raped, 30 million were dislodged from their homes and 10 million had to take refuge in neighbouring India due to the cleansing operation committed by the West Pakistan army and their collaborators. As per global ranking, Bangladesh genocide is second to that of Nazi genocide of Jews. According to a report of the UN Human Rights Commission in 1981 it was stated that the genocide committed in Bangladesh in 1971 was the worst in history. In order to cripple Bengali nationalism and culture the West Pakistan army in collaboration with the Jamat-e-Islam and few other such parties and their affiliates systematically and calculatedly murdered Bengali intellectuals, writers, doctors, journalists, educators and their political leadership. Such is a testimony of cleansing of a religious group, a clear evidence of genocide.

In modern democracy, countries like the United Kingdom, Germany, USA, Canada and Austria criminalised 'The Holocaust' denial by instituting new legislations. In UK the existing law of defamation, the Malicious Communications Act 1988 and the Public Order Act 1986 are considered to be enough to deal with Holocaust denial if some of its provisions are modified by the lawmakers. In Austria the National Socialism Prohibition Law 1947 (Amended in 1992) and in Belgium the Negationism Law 1995 (Amended in 1999) deal with the crimes related to denial of the Holocaust. In Bosnia and Herzegovina in May 2007 Ekrem Ajanovic, a Bosniak MP in the Bosnian Parliament proposed a legislation on criminalizing the denial of Holocaust, genocide and crimes against humanity. This was the first time that somebody in Bosnia and Herzegovina's Parliament proposed such legislation. Bosnian Serb MP's voted against this legislation and proposed that such an issue should be resolved within the Criminal Code of Bosnia and Herzegovina. Following this, on 6 May 2009 Bosniak MP's Adem Huskic, Ekrem Ajanovic and Remzija Kadric proposed to the parliament a change to the Criminal Code of Bosnia and Herzegovina where denial of holocaust, genocide and crimes against humanity would be criminalized. Bosnian Serb MP's have repeatedly been against such a legislation claiming that the law "would cause disagreement and even animosity" according to SNSD member Lazar Prodanovic. In France, the Gayssot Act, voted for on July 13, 1990, makes it illegal to question the existence of crimes that fall in the category of crimes against humanity as defined in the London Charter of 1945, on the basis of which Nazi leaders were convicted by the International Military Tribunal at Nuremberg in 1945-46. When the Act was challenged by Robert Faurisson, the Human Rights Committee upheld it as a necessary means to counter possible anti-Semitism. Hence, adopting such legislations to criminalise holocaust denial is not new in modern democratic societies.

Ironically even to this day, Jamaat-e-Islami leaders blatantly deny the globally acknowledged facts of the Liberation War and tag the liberation war as civil war, contending that there are no war criminals in Bangladesh. In furtherance they also deny the brutality that took place in 1971 by the West Pakistani Army along with the perpetrators, and consider the freedom fighters as miscreants and enemies of Islam who took up arms to divide Pakistan. This denial not only hurt the feelings of freedom-loving people and the relatives of martyrs, but also are a virtual negation of the very existence of Bangladesh. This is virtually an offence of sedition, a crime against the existence of a country.

In 1971 our forefathers fought and sacrificed their lives for the freedom of our country and unchained us from the shackles of social, economic and political discrimination. Today when we are initiating judicial action against the war criminals, simultaneously it has also become a necessity to adopt new legislation to penalise those groups and individuals who deny the facts of the Liberation War of 1971. We have to accommodate new provisions in the Penal Code to criminalise those persons who term the Liberation War of 1971 as merely a civil war or an act committed by some misguided troublemakers with an object to diminish the Islamic structure of Pakistan. It is not enough to record the history in paper books only; we have to ensure whether the history that we are nourishing in our daily lives is on the right track.