Luigi Cajani explains how Italy’s draft law on the denial of international crimes minimises the impact on intellectual freedom.
On 11 February 2015 the Italian Senate approved a bill implementing the Framework Decision of the European Union, adopted on 28 November 2008, to harmonise the laws of member states on the fight against racism and xenophobia, with particular regard to the crime of denialism. The text, which will have to go to the Chamber of Deputies for final approval, amends article 3 of the Law of 13 October 1975 n. 654, which adopted the International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature by the UN General Assembly on 7 March 1966. The previous version of this article established imprisonment for one to four years for:
a) those who in any way spread ideas based on racial superiority or hatred;
b) those who in any way incite to discrimination, or incite to commit or commit acts of violence or provocation to violence against persons because of their belonging to a national, ethnic or racial group.
In the new version of this article the words “in any way” are replaced with “publicly”, thus specifying and restricting the scope of criminal conduct. Moreover, the following paragraph 3-bis is added:
For the events referred to in paragraph 1, letters a) and b), and paragraph 3, the penalty is increased if propaganda, public instigation and public incitement are based in whole or in part on the denying of the Holocaust or of crimes of genocide, crimes against humanity and war crimes, as defined in Articles 6, 7 and 8 of the Statute of the International Criminal Court, ratified under the Act of 12 July 1999 number 232.
In comparison with article 1 of the EU Framework Decision, only the criminal conduct of denial is mentioned, ignoring the two other offences of condoning and of grossly trivializing these crimes. The new text also omits the Framework’s reference to the Charter of the International Military Tribunal of 8 August 1945. Finally, the new text modifies article 414 §1 n. 1, on incitement to perpetrate any crime, and reduces the maximum punishment from five to three years imprisonment.
What is important is that this bill does not introduce denialism as a new and separate crime as in the Framework Decision and as had been envisaged in a previous version, provisionally approved by the Justice Commission of the Senate in 2013. On the contrary, denialism is made an aggravating circumstance of another crime, racist conduct, which was already an offence in Italy as in other European states. That means that one cannot be prosecuted for denialism in itself, but only for racism, and in this case the punishment would be aggravated if a form of denialism was present. Considering the pressure exerted by the Framework Decision and by the EU Commission, which has announced infringement procedures against states that do not adopt it, this Italian bill can be considered the best solution as it formally adopts the EU Framework Decision but at the same time minimises and rather nullifies the impact on historical research and communication. As a result, other considerations that are currently debated in the context of denialism legislation, regarding the special reference to denial of the Holocaust, the lack of distinction between facts and interpretations, and the lack of indication of the authorities which are entitled to define a historical event as an international crime, become, in this case, practically irrelevant.
Luigi Cajani is Professor of History at the Sapienza University of Rome. Alongside other research he has investigated comparative European historical consciousness amongst young people and reviewed structures and standards of history teaching in Europe.