This article ventures into the contentious question of whether the denial of historical atrocities is per se removed from the protection of freedom of expression and the related question if states may under international human rights law proactively combat, through criminal legislation (‘memory laws’), such types of extreme speech. In so doing, the article compares and contrasts approaches employed by the un Human Rights Committee that monitors the un International Covenant on Civil and Political Rights with that of the European Court of Human Rights, regional watchdog of the European Convention on Human Rights. It is argued that both approaches are shifting—though not quite in converging directions. The article makes a case for a contextual rather than exclusively content-based approach. An approach in which the question of ‘likelihood of harm being done to the targeted group’ is guiding, best resonates with the necessity principle.
Commission of Human RightsMaraisv. France Application No. 31159/96 admissibility decision of 24 June 1996; European Commission of Human Rights Friedrich Rebhandl v. Austria Application No. 24398/94 admissibility decision of 16 January 1996.
European Court of Human RightsHans-Jürgen Witzschv. Germany [I] Application No. 41448/98 admissibility decision of 20 April 1999; European Court of Human Rights Hans-Jürgen Witzsch v. Germany [II] Application No. 7485/03 admissibility decision of 13 December 2005.