I shall approach this subject as a jurist.
One might say that the loi Gayssot (the Gayssot Act of 1990, which criminalizes the public denial of crimes against humanity as defined at Nuremberg) is perhaps not the best law, but it is a necessary one.
This debate was all the more necessary in that yesterday, in Le Monde, some of you no doubt saw the statement by Michel Tournier, who was presumably interviewed following the release of the film Le Roi des Aulnes (The Erl-King); Michel Tournier, who pronounces himself in rather astonishing terms on this loi Gayssot. Let me read you a few extracts:
“The massacre of the Jews was a historical fact; the loi Gayssot turns it into an article of faith, the denial of which becomes a blasphemy, on the same footing as the Immaculate Conception or the dogma of the Trinity.”
That is to say, Michel Tournier comes and says: “you are in the process of establishing truth by means of the law, in the same way that one asks the believer or the Christian to believe in the Immaculate Conception or the dogma of the Trinity.” A rather astonishing confusion — not when it comes from Michel Tournier, which to be honest did not really surprise me, but from figures such as Vidal-Naquet or Madeleine Rebérioux. And so, as a jurist, I shall give you a few explanations so that we may debate this loi Gayssot. First, let us clarify a problem of terminology concerning négationnisme (Holocaust denial): this movement first called itself “revisionist,” then came to be called “negationist” (négationniste). I believe the term that corresponds most closely to the reality is “negationist.” One can sum up the negationists’ position around three refusals, around three rejections, three denials. First denial: the gas chambers had no homicidal character; they were there only to disinfect persons whose state of health was extremely deficient; second denial: there was never any policy of extermination on the part of the Third Reich against the Jews; third denial: the figure of six million (victims) that has been advanced has no foundation and is altogether inaccurate.
It seems to me that the term revisionist cannot apply to this category of individuals. I believe they wanted to take up this expression revisionist in order to place themselves under the cover of a pseudo-historical revisionism, by saying that the work of historians is in perpetual evolution, in perpetual revision, and that a historian will constantly evolve in the positions he takes, in his study of the facts and documents submitted to him. So they attempted to present themselves as revisionists, but I believe the three “noes” I have just mentioned show clearly that they must be called negationists.
This denial has been, and is, punishable in France under a law of July 1990 known as the loi Gayssot. The loi Gayssot, named after the man who proposed the text, the Communist-group deputy Gayssot, is a law that has a single article, which is extremely short, which one might think is very clear, but whose very lack of clarity is precisely what gives rise to this debate. Here is what this legal text says: “Shall be liable to the penalties…” — which I shall not enumerate — “those who have contested the existence of one or more crimes against humanity as defined by Article 6 of the Charter of the International Military Tribunal (I.M.T.) annexed to the London Agreement” — that is, of Nuremberg. So, to sum up, the loi Gayssot says: “you are liable to criminal sanctions from the moment you contest the existence or the reality of crimes against humanity”; but note carefully that it is not a question of this or that crime against humanity, but exclusively of those that were defined at Nuremberg — that is, the crimes against humanity committed against the Jews or against the Roma. I make this clear right away, because there exist other crimes against humanity, in particular after Nuremberg, to which the loi Gayssot does not apply. The loi Gayssot covers only the crimes committed during the Second World War against the Jews or the Roma. Let me recall what a crime against humanity is, as it was defined at the Nuremberg trials.
The loi Gayssot covers only the crimes committed during the Second World War against the Jews or the Roma.
These crimes do not, therefore, concern only the gas chambers or the crematorium ovens: they are “murder, extermination, enslavement, deportation, and all other inhuman acts committed against civilian populations for political, racial, or religious motives.” That is the Nuremberg definition of the crime against humanity. And when, in France at any rate, one comes and contests the existence of these crimes, well, one is liable to a criminal sanction. It is true that when this law came out, a certain number of historians, intellectuals, and jurists — and I was one of them — did not fully understand its meaning: what, someone who expresses an opinion, who says “in my view the gas chambers did not exist” — that person should be punished criminally? I was somewhat uneasy with this type of law, which is rather exceptional in our French law. And then I understood, along with other jurists, that négationnisme is not simply the expression of this discourse, the expression of an opinion — namely, that the gas chambers had no homicidal character — but that in reality this discourse underlay a wholly other discourse.
And there is no other example in history of the great tragedies that have crossed humanity becoming the object of currents of contestation of this kind. There will be questions of interpretation, differences of appraisal; but never will you find, with respect to the great tragedies of history, currents of pseudo-historians tending to contest the facts. Speaking of the enslavement of Black people, no one contests the enslavement of Black people.
One can take the mass graves of the trenches of the 1914–18 war: no one will come and contest the existence of these tragedies. I believe, therefore, that in order to try to understand the reason for négationnisme and the reason the law intervened, one must take as a point of reference the evolution of what antisemitic expression has been, and consider it before the Shoah and after the Shoah.
Before the Shoah, as we all know, antisemitism had a direct, aggressive, violent expression; there was a political antisemitism and an antisemitism that one might qualify as theologico-religious. Both on the political plane and by way of religious conceptions, there was a convergence against the Jews within the framework of this antisemitism, which took the forms we know and that I shall not develop here. And the Shoah came. And I could almost say that the Shoah compromised antisemitism, and that at the end of the war one could not be antisemitic as one could have been before the war. I believe one must start from a pivotal point in antisemitic expression, between before the Shoah and after the Shoah. But at the same time another event will occur, and there will be a telescoping of these two events: the creation of the State of Israel. And this will become the focal point of a new expression of modern antisemitism. And one will find this expression with Professor Faurisson, the apostle of the negationists, the one to whom all the negationists lay claim. And whose creed I would like to recall, from 1978. Here is what he writes then:
“The alleged Hitlerian gas chambers and the alleged genocide of the Jews form one and the same historical lie, which has made possible a gigantic politico-financial swindle whose beneficiaries are the State of Israel and international Zionism, and whose principal victims are the German people — not its leaders — and the Palestinian people in its entirety.”
In this sentence one finds all the clichés of prewar antisemitism: that is, the conspiracy, that is, the politico-financial swindle: they are everywhere, the Jews, this people without a land, and who today have a land, always have the same behavior, which is to form this gigantic politico-financial swindle. We thus have, with this statement by Faurisson, which is the creed of the negationists, this new form of antisemitism.
And we shall see it with the recent Garaudy–Abbé Pierre affair, where the same themes will be taken up with even greater precision, because the negationists will want to justify their position, and to push back in time — and not only to the creation of the State of Israel or to the Shoah — a certain number of criticisms against the Jews. Garaudy, like Abbé Pierre, will come and say that the Jews are in reality executioners since antiquity, and that the fact of presenting them as victims over twenty centuries is, here again, a gigantic swindle and a gigantic lie, since — Garaudy will tell us, echoed by Abbé Pierre — in reality, look at what happened in the time of Joshua, when the Jews massacred the Canaanites; and Garaudy, like Abbé Pierre, will say: that was the first Shoah of History.
There is thus a kind of slippage in the gaze the negationists cast upon the Jews: not only was it a deicide people, but in reality it was an executioner people since antiquity. They were never victims; they are executioners. I would like to make a brief aside on this precise point: it is extraordinary that today, while the negationists who come to discuss, to divide, to fragment all the historical events, the testimonies, the documents, in order to try to say “all of that is not true,” we have Abbé Pierre — and others, of course — who refer to a document, which is the Old Testament, in order, there, to come and say: “there was a Shoah.” That is to say, that in ’39–’45, during the Second World War, there was no Auschwitz in the sense in which we understand it, but that in reality there was a Shoah, 30 centuries ago. And one takes as a reference a document that was written four or five centuries later, which is the Old Testament; that is to say, there is a kind of total contradiction — but it is not the only one — in the discourse of the negationists, who refer to a biblical text in order to say that the Jews are executioners.
There was manifestly an attempt at genocide against the Armenians, willed by the Turkish government in 1915.
But when one wants to say that the Jews were victims during the Shoah, then they come and say: that is not true; and one can present them with all the documents, all the work of historians, and all the witnesses who survived this tragedy, and they come and say: that is not true. This clearly underscores the aberration of their discourse. We thus have the myth of the Jew as conspirator, swindler, executioner. This kind of new antisemitic discourse is not exactly the same as the one that was held before the War, or in any case it is the same concepts, the same criticisms that are made, but which are carried by other realities, notably the creation of the State of Israel. So these negationists are driven by hatred of the Jew, hatred of Zionism, hatred of Israel. And if the Shoah had been able, in a certain way, to compromise antisemitism, well, I believe that with the creation of the State of Israel, and the resumption of this discourse — through, in particular, the statements of Faurisson — one sees how this antisemitism is not dead, even after the Shoah.
This antisemitic discourse — and I say that négationnisme is not simply an opinion, but underlies a militant antisemitic discourse — I would like to set it against the Armenian question. The Armenians lived through a tragedy; there was manifestly an attempt at genocide against the Armenians, willed by the Turkish government in 1915. Who today, apart from the Turks, contests the reality of this genocide? There are differences of appraisal. There was the example of Professor Lewis, who in an article in Le Monde had spoken of the “Armenian version of the genocide,” and who, for this expression “Armenian version of the genocide,” was sanctioned by the courts: this statement was somewhat careless, did not take account of reality, and had therefore caused harm to the Armenian community. And he was ordered to pay damages.
Whereas, as concerns the Jews, this negationist current will attempt to sweep away entirely what happened during the war. As concerns the Armenians, even if there are differences of appraisal, no one in France tends, has the wish — expressed or not — to set them apart from the national community. Whereas the discourse of the negationists, which is a militant antisemitic discourse, has as its object to set apart from the French community the Jews.
I believe this is an extremely important point. For one hears the Armenians say, “why are we not protected by the loi Gayssot?” Their suffering is real; they suffer from a non-recognition. Because in France, perhaps, some do not know the reality of this genocide. But when they learn of it, it occurs to no one to contest this genocide. Whereas with respect to the Shoah there is, among the negationists, a systematic contestation.
I therefore believe it is extremely important to show in what way négationnisme constitutes a militant antisemitic discourse. And it is in that sense that the legislator intervened, in order to say: the denial of crimes against humanity is an offense, is a wrong that is criminally punishable. And how does one demonstrate this in law: there is first the statement itself, there is the manifest intent to harm, and there are victims, for the negationist statement is an outrage to the memory of the dead, an outrage to the survivors and to the suffering of the survivors. We thus have here all the elements that make for a criminal wrong in French law; that is to say, there is a statement, an intent to harm, a direct injury, against the memory of the victims and against the survivors.
The discourse of the negationists, which is a militant antisemitic discourse, has as its object to set apart from the French community the Jews.
I believe one must go by way of the detour of what négationnisme is in order to understand that it is not simply an opinion, that one cannot simply say that the gas chambers did not exist, as others might say “Clovis was baptized in 496 and not in 498.” One can say 498 or 499; that causes no injury to anyone whatsoever. It is a debate, it is an opinion, and everyone can express it.
I would like, further on this point, and in order to explain the intervention of the loi Gayssot, to evoke another aspect of this négationnisme. One of the mainsprings of the Nazi extermination policy was the concealment of the crime, the erasure of the proof of the crime. That is to say that not only was there an erasure of the victims, but also an erasure of the proof of the murder. It is therefore a kind of double erasure.
If the common-law murderer seeks to conceal the proofs of his crime, it is in order to escape the sanction. With the Nazis it was something altogether different; it was not at all in order to escape the sanction; they had, themselves, the will to amputate the community of mankind of a part of that community. And so there was an erasure of the crime, an erasure of the proof of the crime. And one can say that the denial of the crime today, fifty years later, is a kind of prolongation of the crime itself.
And I would like to read you a passage from a remarkable book, Le gardien des promesses, written by a magistrate, Antoine Garapon, which is a reflection on justice and democracy. And here is what Garapon writes:
“denial is part of the crime against humanity; the murder has as its intrinsic component its own denial — that is no doubt why it is not a question of an ordinary crime. The other is not only killed, but is destroyed, denied, evaporated; even his death disappears. The processor of the crime against humanity is denial. The erasure of proofs by anticipation, which characterizes all these types of crimes, does not proceed from the very human concern to escape the sanction, but from the will to accomplish the crime by rendering its proof impossible. The crime, at the very moment it is consummated, renders all memory impossible. It kills memory, forbids mourning, by rendering the injustice committed improbable in both senses of the term — uncertain, and above all unprovable.”
So there are two foundations to this loi Gayssot. People have come and said: “But it is an exceptional law, exorbitant from the standpoint of criminal law.” I believe that this is an untruth. I believe that this loi Gayssot brings its coherence to the whole of the legislation concerning the crime against humanity. We have Nuremberg, which fixes what the crime against humanity is; and we have a text that we too often forget; we have, in 1964, this law that renders the crime against humanity imprescriptible.
We know that one of the foundations of criminal procedure in France is prescription, prescriptibility — that is to say that, after a certain number of years, the perpetrator of a crime or an offense must no longer be liable to prosecution, for many reasons: forgetting, pardon, and so on. The crime against humanity is, itself, imprescriptible. So already in 1964 the legislator realized that the crime against humanity was vulnerable, that one had to keep watch over what had happened, and therefore that it was imprescriptible. And in 1990 the legislator will reinforce this position by saying “take care, the fact of denying what happened can and must still be sanctioned.” I believe that the tragedy of the Shoah is a fragile thing, for it is confronted by two enemies, two implacable enemies. One of these enemies is confusion; and the Tournier text I quoted a moment ago is very symptomatic of this confusion. The negationists always come and say “but Katyn is also a crime against humanity.” At the moment of the tragic events that unfolded in Lebanon in 1996, between Israelis and Lebanese, with the bombardment of Qana, well, Garaudy came and said “there is a crime against humanity.” The second enemy is this denial.
The work of historians has not yet succeeded in fully rooting this tragedy as being one of the greatest tragedies humanity has known.
I believe that the historian lays the foundations and installs the base of our memory, which is still today too vulnerable. And I believe that precisely the law is there to protect this vulnerability; to keep watch over the remembrance of the victims, the law is there to keep watch over the suffering of the survivors in order to protect them against this type of aggression.
The law constitutes the minimum common denominator that allows a social group to live in harmony. Faurisson had been convicted in the 1980s by a judgment stating that, through such statements, he was endangering harmonious coexistence within the French nation. So it seems to me that not only is the loi Gayssot not a regression — as Madeleine Réberioux or other historians have affirmed — but that it has an extremely important function in this case, which is the protection of the victims, from the moment one understands, one admits, that denial is not simply an opinion. The law guarantees freedom of opinion, it guarantees freedom of expression, but this freedom has meaning only through the limits fixed by law. And this is not a new principle today; the Declaration of the Rights of Man of 1789 fixes freedom of opinion, sets out the principle of freedom of opinion and expression, but says immediately afterward that this freedom has meaning only through the limits that are laid down. And all the subsequent texts impose the necessity of this limit.
I could have stopped there, in order to debate with Pierre Vidal-Naquet. He is not here, so I shall try to set out his argument, in order to be able to debate it afterward: “take care, with a law such as the loi Gayssot, you are in the process of instituting a State truth, an official truth. It is not for the law to fix a truth; it is for historians to do so.” And he refers, in several texts, to State truths, notably in the Soviet Union, where official truths were common currency.
I am inclined to reply to those who maintain this argument that when a State proclaims an official truth, that State proclaims a lie — a lie whose object is to conceal its own lies, to conceal its own turpitudes. The Soviet Union long concealed the Katyn massacre by saying that the four thousand Polish officers had been massacred by the Germans, whereas it was a Soviet massacre, carried out for internal political needs. It was a lie that was fabricated, proclaimed as a kind of truth.
In the case of the Shoah we have the inverse position: that is to say that it is a truth, but one that the negationists seek to claim is a lie. That is to say that Vidal-Naquet’s argument is seductive, but it must be completely inverted; it is not a truth that conceals a lie, it is in reality a truth affirmed by all the work of historians and by all the witnesses, but which today some seek to turn into a lie. Who is it that seeks to turn it into a lie? It is not the Germans; it is not the German State that seeks to deny the reality of this crime, since, in addition to the Nuremberg trial, there was the Frankfurt trial, the Leipzig trial, where German criminals, including camp officials, were convicted. It is French people who, for crimes committed abroad and sanctioned by German law, come and say that these are lies.
So I think that one cannot follow this argument; all the more so since — final argument — the official truth has as its aim, as I have said, to conceal the misdeeds, the turpitude of the State. The loi Gayssot, for its part, has as its object to sanction an offense; it may, perhaps, have as an indirect consequence the impression that one is seeking to establish a truth, but this loi Gayssot does not have as its purpose to establish that truth; it has as its object to sanction an offense, a wrong; so it will indeed have, as a consequence, certain historians saying, “take care, you are in the process of establishing an official truth.” But that has nothing to do with the official truth in totalitarian countries, where that truth is created by the law with the purpose of establishing that truth. Whereas the loi Gayssot has as its object to sanction an offense, and on that account, I believe, it has every reason to exist.
