* Articles Editor, Boston College Third World Law Journal (2002–2003).
1 Deborah E. Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory, at xvii (1994).
2 Id. at 1. Lipstadt notes that participating in a debate with Holocaust deniers would give deniers an undeserved legitimacy and stature and would treat their anti-Semitic ideology as responsible historiography. Id.
3 Michael Shermer & Akex Grobman, Denying History: Who Says the Holocaust Never Happened and Why Do They Say It? 31–35 (2000); Geri J. Yonover, Anti-Semitism and Holocaust Denial in the Academy: A Tort Remedy, 101 Dick. L. Rev. 71, 74 (1996).
4 Lipstadt, supra note 1, at 17.
5 Id.
6 Id. at xi; Yonover, supra note 3, at 73.
1 Vera Ranki, Holocaust History and the Law: Recent Trials Emerging Theories, 9 Cardozo Stud. L. & Literature 15, 16 (1997); Yonover, supra note 3, at 73. There are an estimated 127,000 to 145,000 survivors living in the United States, and 800,000 worldwide, living mostly in Israel and the former Soviet Union. Amy Dockser Marcus, As Survivors Age, Debate Breaks Out on Holocaust Funds, Wall St. J., Jan. 15, 2003, at A1, available at 2003 WL-WSJ 3956509; see also United States Holocaust Memorial Museum, Benjamin and Vladka Meed Registry Of Jewish Holocaust Survivors, at http://www.ushmm.org/remembrance/reg-istry/ (last visited Jan. 11, 2003).
7 Yonover, supra note 3, at 73.
8 See id.
9 See Credence Fogo-Schensul, More Than a River in Egypt: Holocaust Denial, the Internet, and International Freedom of Expression Norms, 33 Gonz. L. Rev. 241, 247 (1997–98).
10 Id. at 242.
11 Kenneth Lasson, Holocaust Denial and the First Amendment: The Quest for Truth in a Free Society, 6 Geo. Mason L. Rev. 35, 37–38 (1997).
12 Id. at 37. Inmates at concentration camps testified that they were often taunted by their Nazi captors, who would say that even if the inmates survived, no one would believe the atrocities they would describe. Id.
13 Id.
14 See id. Most legal theorists and historians believe that law plays a valuable role in understanding the past. Lawrence Douglas, Wartime Lies: Securing the Holocaust in Law and Literature, 7 Yale J.L. & Human. 367, 368 (1995).
In the case of the Holocaust, an appreciation of the special role that law can play in securing an adequate understanding of the past largely prompted the Allies at the end of World War II to agree upon a juridical response to Nazi crimes. The Nuremberg Trials, the Allies maintained, were less an instrument of retribution than one of pedagogy, in which the law would provide a public forum for historical instruction and neutral judgment.
Id. at 368–369.
15 See Lasson, supra note 12, at 35, 38. In response to the name “Revisionism,” Lipstadt writes:
Because the movement to disseminate these myths is neither scholarship nor historiography, I have chosen to eschew the term revisionism whenever possible and instead to use the term denial to describe it. The deniers’ selection of the name revisionist to describe themselves is indicative of their basic strategy of deceit and distortion and of their attempt to portray themselves as legitimate historians engaged in the traditional practice of illuminating the past.
Lipstadt, supra note 1, at 20.
16 Ranki, supra note 7, at 22.
17 Fogo-Schensul, supra note 10, at 247.
18 Jewish Virtual Library, Holocaust Denial � 8, at http://www.us-israel.org/jsource /Holocaust/denial.html (last visited Jan. 11, 2003) (hereinafter Holocaust Denial).
19 See Lipstadt, supra note 1, at 38, 47.
20 See id. at 38–47. Political conspiracy arguments included contentions that a Roosevelt-led military conspiracy had been perpetrated to drag the U.S. into war, as well as claims that minimized the severity of Germany’s hostile actions by portraying Nazi Germany in a positive light and claiming that the Allies committed comparable wrongs. See id. at 38, 41.
21 Id. at 47.
22 Id. at 49.
23 See Lipstadt, supra note 1, at 65; Shermer & Grobman, supra note 3, at 43–46; John C. Zimmerman, Holocaust Denial: Demographics, Testimonies, and Ideologies 121 (2000); Holocaust Denial, supra note 19, � 9.
24 Holocaust Denial, supra note 19, � 9.
25 Id. Leading activists affiliated with the IHR have included Mark Weber, Bradley Smith, and Fred Leuchter (USA); Ernst Zundel (Canada); David Irving (England); Robert Faurisson (France); Carlo Mattogno (Italy); and Ahmed Rami (Sweden). Id. � 11.
26 Id. The advertisements are placed for the Committee for Open Debate on the Holocaust (CODOH). Id. The question of whether or not to publish these advertisements has been the source of controversial debate on college and university campuses. See Lasson, supra note 12, at 44. The IHR has succeeded in placing advertisements in about half of the campus newspapers to which the ads have been submitted. Id. Editors choosing to publish the advertisements defend their decisions on the basis of the First Amendment freedom of speech and the press, as well as their aversion to censorship. Id. Those refusing to publish the advertisement argue that the advertisements merely are disguised racial hatred and that the First Amendment does not require newspapers to publish every article, editorial, or advertisement submitted. Id. at 44–45.
27 Fogo-Schensul, supra note 10, at 250. For example, in the United States, notorious freelance deniers include the National Association for the Advancement of White People, former Republican presidential candidate Patrick Buchanan, and pamphleteer Gary Lauck; in Canada, James Keegstra, an Alberta high school teacher; and in Germany, Guenther Deckert, a former high school teacher. Id. at 244, 251, 253.
28 Yonover, supra note 3, at 77.
29 Id. at 74.
30 Id. at 75. See generally Arthur Butz, The Hoax of the Twentieth Century (1976). Holocaust denial in academia is not just an American phenomenon. Yonover, supra note 3, at 76. Other Holocaust deniers include Ernst Nolte, onetime chair of the modern history department at the Free University in Berlin and the University of Marburg; Werner Maser, professor at Halle University in Germany; Malcolm Ross and James Keegstra, Canadian schoolteachers; and Jean-Louis Bonnat, professor at the University of Nantes, France. Id. at 76–77.
31 Fogo-Schensul, supra note 10, at 242. Proliferation via the internet became apparent in 1996, when Northwestern University students drew media attention for protesting their school’s housing of Butz’s denial Website. Id. at 242–43.
32 http://www.ihr.org/top/links.html (last visited Jan. 11, 2003).
33 http://www.zundelsite.org/ (last visited Jan. 11, 2003).
34 http://www.codoh.com (last visited Jan. 11, 2003).
35 Fogo-Schensul, supra note 10, at 245–46. There are several websites run by individuals and mainstream Jewish organizations devoted to rebutting Holocaust denial. Id. at 246–47. The most well known is that of the Nizkor Project. Id. at 246 n.39; The Nizkor Project, at http://www.nizkor.org/ (last visited Jan. 11, 2003).
36 See Lipstadt, supra note 1, at 17–18.
37 Id.
38 Id. at 18.
39 Id.
40 Id. at 18.
41 See Lipstadt, supra note 1, at 20; see also Shermer & Grobman, supra note 3, at 77–78. The term “revisionism” originated with historian William Appleman Williams’ “Wisconsin School,” which questioned American foreign policy, particularly as it related to the Cold War’s origins and the conflict between the West and the Communist world. Lipstadt, supra note 1, at 20–21.
42 Lipstadt, supra note 1, at 20. The academic community has spoken out about Holocaust denial. Holocaust Denial, supra note 19. The History Department at Duke University, in response to a CODOH ad, published the following statement:
That historians are constantly engaged in historical revision is certainly correct; however, what historians do is very different from this advertisement. Historical revision of major events . . . is not concerned with the actuality of these events; rather, it concerns their historical interpretation—their causes and consequences generally. There is no debate among historians about the actuality of the Holocaust . . . there can be no doubt that the Nazi state systematically put to death millions of Jews, Gypsies, political radicals and other people.
Id. Professors at other universities such as Rutgers University and Northwestern University have put forth similar statements. Id. Most significantly, in December 1991, the American Historical Association, the largest and oldest professional organization for historians, unanimously approved a statement condemning Holocaust denial and stating that “[n]o serious historian questions that the Holocaust took place.” Id.
43 Ranki, supra note 7, at 22.
44 Lipstadt, supra note 1, at 21; Anti-Defamation League (ADL), Holocaust Denial: An Online Guide to Exposing and Combating Anti-Semitic Propaganda � 5, at http://www.adl.org/ holocaust/introduction.asp (last visited Jan. 11, 2003) (hereinafter ADL).
45 Ranki, supra note 7, at 22.
46 Lipstadt, supra note 1, at 99; Shermer & Grobman, supra note 3, at 100. These basic assertions were formulated by Austin J. App, one of the most prominent American academic Holocaust deniers, and were offered to readers of his 1973 pamphlet The Six Million Swindle: Blackmailing the German People for Hard Marks with Fabricated Corpses as “eight ‘incontrovertible assertions’ that demonstrate the fallaciousness of the figure of six million, which the media kept repeating ‘ad nauseam without any evidence.’” Lipstadt, supra note 1, at 85, 94, 98–99 (emphasis in original).
47Lipstadt, supra note 1, at 99. Deniers go on to assert that the Nazis only wanted Jews to emigrate, and that the USSR was responsible if any Jews did die. Id.
48 Id.
49 Id.
50 See Shermer & Grobman, supra note 3, at 100–01; Holocaust Denial, supra note 19, �� 26–53.
51 Holocaust Denial, supra note 19, �� 26–33. While there was no single document, the “Final Solution,” the Nazis’ comprehensive plan to murder all European Jews, was “the culmination of a long evolution of Nazi Jewish policy.” Id. � 27. Hitler maintained that “the Jewish question” was the pivotal question for his party, and he was recorded declaring that “the result of this war will be the complete annihilation of the Jews . . . [t]he hour will come when the most evil universal enemy of all time will be finished, at least for a thousand years.” Id. � 32.
52 Id. �� 40–42. The Germans themselves, however, left no shortage of documentation and testimony to these events, and it is largely from these primary sources that the history of the Holocaust has been compiled. Id. � 40.
53 Shermer & Grobman, supra note 3, at 100–01; see Holocaust Denial, supra note 9, �� 26–53.
54 Holocaust Denial, supra note 19, �� 34–39. By October 1941, when the mass shootings of Jews became an increasingly unwieldy process, directors of the genocide met to discuss the use of gas chambers in the genocide program. Id. � 35. Previously, gas chambers had been used as a central part of Hitler’s eugenics program; between January 1940 and August 1941, a total of 70,273 physically handicapped or mentally ill Germans were gassed. Id. � 34. Starting in November 1941, mobile gassing vans were used to kill Jews at Chelmno, Treblinka, and other sites. Id. � 36. Gas chambers were installed and operated at Belzec, Lublin, Sobibor, Majdanek, and Auschwitz-Birkenau from September 1941 to November 1944. Id. � 37. It is estimated that these gas chambers are responsible for the deaths of approximately two to three million Jews. Holocaust Denial, supra note 19, � 37.
55 Id. �� 43–46.
56 Id. Twenty-one leading officials from the Nazi party, German government ministries, central bureaucracy, armament and labor specialists, and military and territorial chiefs were tried at Nuremberg. Id. � 50.These trials, however, “did not result in either ‘rubber stamp’ guilty verdicts or identical sentences.” Id. � 51. Rather, of the twenty-one defendants, three were set free, one received a ten-year sentence, one a fifteen-year sentence, two received twenty-year sentences, three were sentenced for life, and eleven received the death penalty. Holocaust Denial, supra note 19, � 51. It is important to note that valid legal and historical scholars, while never questioning the occurrence of the Holocaust, have examined the validity of the Nuremberg trials. For further discussion, see Steven Fogelson, Note, The Nuremberg Legacy: An Unfulfilled Promise, 63 S. Cal. L. Rev. 833, 858–67 (1990).
57 Holocaust Denial, supra note 19, � 47.
58 See Lipstadt, supra note 1, at xi.
59 Id.
60 Id.
61 Id.
62 Id. Lipstadt comments in a footnote that, ironically, those who conceived the poll considered omitting this question because they assumed that the affirmative responses would be insignificant in number. Lipstadt, supra note 1, at xi, n.*.
63 Id. at xi.
64 See Fogo-Schensul, supra note 10, at 247.
65 See Yonover, supra note 3, at 85; Dennise Mulvihill, Comment, Irving v. Penguin: Historians on Trial and the Determination of Truth Under English Libel Law, 11 Fordham Intell. Prop. Media & Ent. L.J. 217, 218 (2000).
66 Holocaust Denial, supra note 19, �� 20–21. “To deny the Holocaust is to defame the dead and to cause direct suffering to the survivors of the Death Camps, their children and grandchildren, as well as to the relatives of those who died.” Yonover, supra note 3, at 77. The language of Holocaust denial is that of group defamation, and there is a strong connection between anti-Semitism and Holocaust denial. Id. at 77–78. Holocaust denial establishes a climate of animosity, racial hatred, and repression. Id. Thus, a number of nations have enacted laws forbidding certain forms of hate speech. Id. at 78.
67 See id.
68 Fogo-Schensul, supra note 10, at 247. The traditional justification for deference to the First Amendment’s guarantee of free speech is the need to encourage an open and unregulated exchange of ideas. See Lasson, supra note 12, at 64.
69 Charles Lewis Nier III, Racial Hatred: A Comparative Analysis of the Hate Crime Laws of the United States and Germany, 12 Dick. J. Int’l L. 241, 266 (1995).
70 Id. at 267.
71 Id.; Friedrich K�bler, How Much Freedom for Racist Speech?: Transnational Aspects of a Conflict of Human Rights, 27 Hoftstra L. Rev. 335, 348 (1998). Constitutional law regarding hate crimes originated in the Supreme Court’s decisions regarding the prosecutions of individuals whose speech threatened to disrupt the draft during World War I. Nier, supra note 70, at 266.
72 See generally 395 U.S. 444 (1969). Brandenburg was the leader of a Klu Klux Klan group who filmed a rally and then broadcast it on local and national television networks. Id. at 444–45. He was convicted under an Ohio statute for advocating crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform, and for voluntarily assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism. Id. The Supreme Court reversed, holding the statute in violation of the First Amendment and stating that the mere abstract teaching of the necessity for a resort to force and violence is not the same as preparing a group for violent action and steering it to such action. Id. at 449; see Nier, supra note 70, at 266–267.
73 Brandenburg, 395 U.S. at 449; see Nier, supra note 70, at 267.
74 See generally 315 U.S. 568 (1942).
75 Id. at 569. The Court stated that there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem. Id. at 571–72. Included in these classes are the lewd and obscene, the profane, the libelous, and insulting or “fighting” words. Id. at 572; see Nier, supra note 70, at 267.
76 See generally 403 U.S. 15 (1971). The Court required that personally abusive epithets must be directed at a specific individual. Id. at 20; Nier, supra note 70, at 267.
77 See generally 415 U.S. 130 (1974). At least one commentator believes the Court implied that a physical confrontation is necessary to invoke the doctrine of “fighting words.” See id.; Nier, supra note 70, at 267.
78 Nier, supra note 70, at 267. In R.A.V. v. City of St. Paul, the Minnesota Supreme Court initially rejected Plaintiff’s First Amendment challenge using the doctrine of “fighting words.” 505 U.S. 377, 391 (1992). The Supreme Court reversed, finding that while “fighting words” is a mode of expression not protected by the First Amendment, the St. Paul ordinance only applied to “fighting words” affecting race, creed, color, religion, or gender. Id. In failing to include prohibitions on other hostile expressions, such as political affiliation, union membership, or sexual orientation, the Court found the ordinance unconstitutional given its imposition of special prohibitions on certain disfavored subjects. Id.
79 See R.A.V., 505 U.S. at 391.
80 See Yonover, supra note 3, at 84.
81 Id.; Lipstadt, supra note 1, at 137.
82 Lipstadt, supra note 1, at 138.
83 Id. at 139.
84 Id.; Yonover, supra note 3, at 84. Another survivor, Simon Weisenthal, had also filed an affidavit with the IHR, but withdrew the affidavit when the IHR insisted on its right to designate its own tribunal to judge the proof instead of allowing a judge of the California Supreme Court to preside. Lipstadt, supra note 1, at 139–40. Weisenthal submitted a signed statement explaining that he would not participate in an effort in which one party was to serve as both prosecutor and judge. Id. at 140.
85 Lipstadt, supra note 1, at 138–39; Yonover, supra note 3, at 84.
86 Yonover, supra note 3, at 84.
87 Lipstadt, supra note 1, at 141; Yonover, supra note 3, at 84–85. In July 1985, the Los Angeles Superior Court ordered the IHR to pay Mermelstein $90,000—the $50,000 reward plus $40,000 for pain and suffering. Lipstadt, supra note 1, at 141. The IHR also agreed to sign a letter of apology to Mermelstein for the emotional distress caused to him and all other survivors. Id. The fact that the judge took judicial notice “meant that Mermelstein did not have to prove these facts; rather, they were accepted by the court as truth in the same way a court accepts that water is wet, night follows day, or that George Washington was our first President.” Yonover, supra note 3, at 85.
88 See generally Lasson, supra note 12.
89 See id. at 69.
90 Id. at 72.
91 Fogo-Schensul, supra note 10, at 253.
92 See id.
93 Id.
94 Einundzwanzigstes Strafrechtsanderungsgesetz 1985 Bundesgesetzblatt [BGB1] I 965 (1985) (German Criminal Code); Lasson, supra note 12, at 74–75. The law was motivated by the need to prosecute a large number of cases involving the “Auschwitz lie,” the claim that the extermination of the Jews never took place. Lasson, supra note 12, at 74.
95 Id. at 75–76. This difference may be explained by the fact that the trial judges are younger and therefore less burdened by guilt about the Holocaust. Id. at 76.
96 Fogo-Schensul, supra note 10, at 253. Additionally, in the last several years, Germany has experienced an increase in violent hate crimes perpetrated by right-wing extremists and a dramatic rise in the use of weapons and the involvement of young people. See Nier, supra note 70, at 243–44.
97 Nier, supra note 70, at 261.
98 Id.
99 Id. at 261–62. The Court distinguished between the “simple Auschwitz lie” and the “qualified Auschwitz lie.” K�bler, supra note 72, at 344. A qualified lie is one which is deemed an attack on human dignity and punishable under criminal law, while a simple lie is the mere denial of the Holocaust, which, while insulting Jews living in Germany, is not considered to be an attack on their dignity and cannot be punished under criminal law. Id. In the Deckert case, the Federal Court held that it was not sufficiently established that Deckert had expressed a qualified lie. Id.
100 Nier, supra note 70, at 262.
101 Paul Lungen, Holocaust Denial Finds a New Home, Can. Jewish News, Feb. 22, 2001, � 1 at http://www.cjnews.com/pastissues/01/feb22–01/main.asp (last visited Jan. 11, 2003).
102 Id.
103 ADL, ADL Documents Spread of Holocaust Denial in Mideast � 2, at http://www.adl.org /presrele/holocaustdenial%5F83/4028%5F83.asp (last visited Jan. 15, 2003) (quoting Anti-Defamation League National Director Abraham Foxman) (hereinafter ADL).
104 Eliahu Salpeter, Fertile Soil for Holocaust Denial, Ha’aretz, Mar. 28, 2001, � 3 (Israeli daily newspaper, on file with author); ADL, Holocaust Denial in the Middle East: The Latest Anti-Israel, Anti-Semitic Propaganda Theme � 4, at http://www.adl.org/holocaust /denial%5Fme/default.asp (last visited Jan. 15, 2003) (hereinafter ADL); Lungen, supra note 102, � 3.
105 Salpeter, supra note 105; ADL, supra note 105, �� 7-8; Lungen, supra note 102, � 14.
106 See ADL, supra note 105, � 4.
107 ADL, supra note 104, � 3. Religious leaders who have rejected the facts of the Holocaust include Sheikh Mohammad Mehdi Shamseddin of Lebanon, Sheik Ikrima Sabri of Jerusalem, and Iranian religious leader Ayatollah Ali Khamenei. Id.
108 Id.
109 See ADL, supra note 105, � 3; David Trafford, Australian/Israel and Jewish Affairs Council, Beyond the Pale: Nazism, Holocaust Denial and the Arab World � 2, at http://www. aijac.org.au/review/2001/266/arab_holo.html (last visited Jan. 15, 2003). The Mufti thought that a German victory in WWII would offer much hope for success in the Palestinian fight against the Zionists and spent most of the war in Berlin coordinating German propaganda that was broadcast throughout the Arab world. Trafford, supra, � 2. This type of alliance was not one-sided; German and Italian fascists also were involved with Arab countries during the 1940s in an attempt to encourage Arab nationalists to revolt against British power. Id.
110 ADL, supra note 105, � 6.
111 Id. � 7. Egypt, Syria, and Iran do not admit to these accusations. Id.
112 Trafford, supra note 110, �� 4–5.
113 Id. � 5
114 Id. These former Nazis were employed in government agencies such as the “Jewish Department” of Egypt’s war office, the Palestinian Liberation Front, and the Institute for the Study of Zionism in Cairo. Id.
115 ADL, supra note 105, � 5.
116 Id.
117 Id. � 7; Trafford, supra note 110, � 8.
118 ADL, supra note 105, �� 5–9. Some people in Arab states, however, do voice opposition to Holocaust denial and its deliberate distortion of the historical record. Id.
119 Id. at � 10; see also Ernst Z�ndel, The West, War, and Islam, at http://www.abbc.com/ zundels/ (last visited Jan. 15, 2003).
120 ADL, supra note 105, � 11. See generally Mahmoud Abbas, The Other Side: The Secret Relationship Between Nazism and the Zionist Movement (1983).
121 ADL, supra note 105, � 12. See also http://www.radioislam.net/ (last visited Jan. 15, 2003).
122 ADL, supra note 105, � 14-15.
123 Id. � 13.
124 Id. � 16.
125 Id.
126 Id.
127 ADL, supra note 105, � 17; Lungen, supra note 102, � 16.
128 ADL, supra note 105, � 17. See generally Roger Garaudy, The Founding Myths of Modern Israel (2000). The Arabic translation of Garaudy’s book was a best-seller in many Arab countries. ADL, supra note 105, � 17.
129 ADL, supra note 105, � 17. Numerous leaders, newspapers, and professional and social organizations in the Middle East issued statements supporting Garaudy. Id. � 18. Seven members of the Beirut Bar Association volunteered to defend Garaudy at his trial, and Egypt’s Arab Lawyer’s Union sent a legal team to Paris in Garaudy’s support. Id. Additionally, the United Arab Emirates daily, Al-Haleej, published an appeal on Garaudy’s behalf and was inundated with contributions, the most significant being $50,000 cash from the wife of United Arab Emirate leaders Sheikh Zayed inb Sultan al-Nahayan, given to cover the fine Garaudy would have to pay if found guilty. Id.
130 Id. � 21. IHR was aided by the Swiss organization, Association V�rit� et Justice, founded by denier Jurgen Graf. ADL, supra note 105, � 21.
131 Id.
132 Id. � 22.
133 Salpeter, supra note 105, � 1. Fourteen Arab intellectuals signed a manifesto against the conference, which was the deciding factor leading Hariri to cancel the conference. Id. � 2.
134 ADL: Arab Think-Tank Labels Holocaust ‘A Fable,’ U.S. Newswire, Aug. 28, 2002, �� 1–2, at 2002 WL 22070884 (hereinafter Arab Think-Tank).
135 Id. � 2.
136 Id. � 16.
137 See id. � 4; Arab League Holocaust Denial Symposium Is No Surprise, AJ Congress Says, as It Calls on European Community to Denounce Conference, U.S. Newswire, Aug. 29, 2002, � 4, at 2002 WL 22070935.
138 See Salpeter, supra note 105, �� 3,6.
139 Calvin Goldscheider, Cultures in Conflict: The Arab-Israeli Conflict, at xix, 3 (2002).
140 Id. at xix.
141 Id.
142 Id. at 3.
143 See generally id. (outlining the Arab-Israeli Conflict).
144 See generally Goldscheider, supra note 140.
145 Salpeter, supra note 105, � 3.
146 David A. Harris, Peace and Poison in the Middle East, Wash. Post, May 2, 2000, at A23, available at 2000 WL 19606705.
147 ADL, supra note 105, � 8. Opposition groups allege that their government rivals have been “taken in” by Israeli Holocaust propaganda. Id.
148 Id. � 7.
149 Id. Additionally, in 2001, Iranian leader Ayatollah Ali Khamenei claimed that the statistics of Jewish deaths during the Holocaust were exaggerated. Id.
150 David A. Harris, An Effort to Erase Jewish History, Boston Globe, Apr. 7, 2001, at A77, available at 2001 WL 3927864.
151 Yossi Klein Halevi, The Dance of Death, Pitt. Post-Gazette, May 20, 2001, at E1, available at 2001 WL 3390596.
152 ADL, supra note 105, � 7. For example, Hiri Manzour, columnist for the Al Hayat al Jadeeda wrote, “The figure of 6 million Jews cremated in the Nazi Auschwitz camps is a lie for propaganda.” Halevi, supra note 152. In addition, other newspapers such as Al-Arab Al-Yom, the Jordanian daily, consistently feature Holocaust denial. ADL, supra note 105, � 16. Id. � 9; Harris, supra note 147, at A23.
153 ADL, supra note 105, �� 7-8.
154 See ADL, supra note 104, � 3.
155 See id.
156 See ADL, supra note 104, � 3.
157 See Fogo-Schensul, supra note 10, at 271; K�bler, supra note 72, at 356; Abdulaziz Al-Saqqaf, Center for Media Freedom Middle East and Northern Africa (CMFMENA), After the Sana’a Declaration: The Fate of the Arab Media � 9, at http://www.cmfmena.org /magazine /features/after_sana%27a_declaration.htm (last visited Jan. 15, 2003).
158 ADL, supra note 105, � 7; Gamla Shall Not Fall Again!, Widespread Arab Incitement Continues Against Jews and Israelis � 1, at http://www.gamla.org.il /english/article /2000 /may/a1.htm (last visited Jan. 15, 2003).
159 Al-Saqqaf, supra note 158, � 1. See Said Essoulami, CMFMENA, The Press in the Arab World: 100 Years of Suppressed Freedom � 1, at http://www.cmfmena.org/magazine /features /100_years.htm (last visited Jan. 15, 2003).
160 Essoulami, supra note 160, � 2.
161 Id.
162 Id. � 6.
163 Id. � 7.
164 Id. � 8.
165 Al-Saqqaf, supra note 158, � 1.
166 Essoulami, supra note 160, � 12-13.
167Id. � 16.
168 Id. In the absence of direct censorship, many Arab governments manipulate the media indirectly through financing. Al-Saqqaf, supra note 158, � 7. More than fifteen journalists are currently imprisoned in Syria, Tunisia, Kuwait, and Iraq. Id. at 7. There are no organizations to protect the rights of journalists or the right of freedom of expression. Abdellhadi Khawadja, CMFMENA, Bahrain: The Human Rights Crisis in the Media � 1, at http://www.cmfmena.org/magazine/features/human_rights.htm (last visited Jan. 15, 2003).
169 See ADL, supra note 105, � 7, 9; Salpeter, supra note 105, � 5.
170 See Fogo-Schensul, supra note 10, at 271; K�bler, supra, note 72, at 356.
171 See Fogo-Schensul, supra note 10, at 255.
172 See id. at 95.
173 Id.
174 Id.; Marjorie L. Morton, Hitler’s Ghosts: The Interplay Between International Organizations and Their Member States in Response to the Rise of Neo-Nazism in Society and Government, 30 Ga. J. Int’l & Comp. L. 71, 82 (2001). See Fogo-Schensul, supra note 10, at 8.
175 See David Bederman, International Law Frameworks 95 (2001).
176 Universal Declaration of Human Rights, G.A. Res. 217, U.N. Doc. A/810, at 73, 77 (1948), available at http://www.unhchr.ch/udhr/lang/eng .pdf (last visited Jan. 15, 2003) (hereinafter UDHR).
177 Bederman, supra note 176, at 96.
178 Id. Customary international law is one of the four sources of international law defined in Article 38 of the Statute of the International Court of Justice. Id. at 12. Formation of a customary international law occurs when a rule has been followed as general practice and has been accepted as law. Id. at 15.
179 Id. at 96; Morton, supra note 175, at 86; Office of the High Commissioner for Human Rights, Introduction to the Treaty Monitoring Bodies �� 2–3, at http://www.unhchr.ch /html/menu2/6/intro.htm (last visited Jan. 15, 2003).
180 Bederman, supra note 176, at 96; Morton, supra note 175, at 86.
181 Bederman, supra note 176, at 97. Arab and Muslim countries such as the Syrian Arab Republic, Lebanon, Iraq, Iran, and Egypt are parties to these treaties. Office of the United Nations High Commissioner for Human Rights, Status of Ratification of the Principle International Human Rights Treaties 4, 5, 8, at http://www.unhchr.ch/pdf/report.pdf (last visited Jan. 15, 2003) (hereinafter OUNHCHR).
182 Bederman, supra note 176, at 98.
183 Id. at 99. The Council includes as members all countries in Western Europe, central and Eastern Europe, the former Soviet Union, and Turkey. Id.
184 Id.
185 Id. at 103; Morton, supra note 175, at 82.
186 Morton, supra note 175, at 82–83.
187 Id. Article 29 of the Declaration states: “These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.” Id.; UDHR, supra note 177, art. 29. Because the protection of human rights is a primary UN purpose, hate crimes are inferred to violate the Declaration. Morton, supra note 175, at 83. Such a general rule is very difficult to apply to a specific incident of harm. Id.
188 Bederman, supra note 176, at 103.
189 See id.
190 Id.
191 Id.
192 Id. at 104–05.
193 Bederman, supra note 176, at 105.
194 Id.
195 Id.
196 Id.; OUNHCHR, supra note 182, at 2–9. To file a complaint, there must be an identified, individual victim (not anonymously or through human rights NGOs), there must be a violation of specific rights guaranteed under the ICCPR without reservations by the States, and local remedies must be exhausted. Bederman, supra note 176, at 105.
197 Office of the High Commissioner for Human Rights, Extra-conventional Mechanisms � 1, at http://www.unhchr.ch/html/menu2/2/mechanisms.htm (last visited Jan. 15, 2003).
198 Id. Extra-conventional mechanisms, unlike mechanisms set-forth in treaty-based bodies, have no formal complaints procedures, but are based on communications received from various sources such as the victims or their relatives, or local and international NGOs. Office of the High Commissioner for Human Rights, Communications Under Extra-conventional Mechanisms � 1, at http://www.unhcr.ch/html/menu2/8/ex_conv.htm (last visited Jan. 15, 2003). To submit a communication to the extra-conventional mechanisms, there must be an identification of the alleged victim, an identification of the perpetrators of the violation, an identification of the person or organization submitting the communication (not anonymous), and a detailed description of the circumstances of the incident in which the alleged violation occurred. Id. � 2.In addition, the communications will not be considered if they are also submitted under the optional protocol. Id. � 3.
199 Bederman, supra note 176, at 106.
200 Id.
201 Id.
202 Id.
203 Id. at 108. A good example is the decade-long imposition of trade sanctions by the U.S. against the white-dominated South Africa. Bederman, supra note 176, at 108.
204 See id. at 109.
205 See Al-Saqqaf, supra note 158, � 9.
206 Fogo-Schensul, supra note 10, at 256; United Nations, Fact Sheet No.2 (Rev.1) � 7, The International Bill of Human Rights, at http://www.unhchr.ch/html/menu6/2/fs2.htm (last visited Jan. 15, 2003); UDHR, art. 19, supra note 177.
207 Fogo-Schensul, supra note 10, at 256; UDHR, art. 19, supra note 177. While the Universal Declaration is not a lawmaking document but rather a General Assembly resolution, many international and domestic tribunals have relied upon it, giving it the status of international customary law to which all states are bound. Fogo-Schensul, supra note 10, at 256.
208 See Al-Saqqaf, supra note 158, �� 6–7; Essoulami, supra note 160, � 1.
209 Al-Saqqaf, supra note 158, � 9.
210 See id.
211 ADL, supra note 105, �� 7–9.
212 See Fogo-Schensul, supra note 10, at 255–58; K�bler, supra note 72, at 356–58; Al-Saqqaf, supra note 158, � 9.
213 See Lipstadt, supra note 1, at xi; ADL, supra note 105, �� 16–17.
214 ADL, supra note 105, �� 12–15.
215 See Abraham H. Foxman, Arab Anti-Semitism and the Arab-Israeli Conflict � 3, at http://www.adl.org/israel/ArabAntisemitism_oped.asp (last visited Jan. 15, 2003); Harris, supra note 147, at A23.
216 Harris, supra note 147, at A23. Harris, Executive Director of the American Jewish Committee, writes: “This extraordinary paradox of Israeli and Arab political leaders attempting to build peace while official Arab media, schools, religious leaders, and intellectuals actively demonize the Jewish people is startling.” Id. at A23. A study conducted by the Middle East Media Research Institute found that Syrian textbooks for grades four through eleven were filled with anti-Semitism, Holocaust denial, demonization of Israel, and an open call to exterminate Jews. Id.
217 See id.
218 ADL, supra note 105, at In Their Own Words, quote 10. Teshreen is Syria’s leading daily newspaper. Id.