Under a European Union directive tabled this week, anyone found denying or even questioning the official history of the Holocaust or recent conflicts in Africa and the Balkans could be punished with up to three years in jail.

The legislation was proposed by Germany, the current holder of the rotating EU presidency. Germany currently has domestic laws against Holocaust denial, along with other European countries such as Austria, Belgium, France and Switzerland; this new legislation would bring in Europe-wide legislation that extended beyond the Holocaust to also include recent conflicts.

The legislation has sparked a backlash amongst many observers. Deborah Lipstadt, professor of Modern Jewish and Holocaust Studies at Emory University, Atlanta, vehemently decried the proposals. “I adhere to that pesky little thing called free speech”, she said in a statement released Thursday, “and I am very concerned when governments restrict it.”

The benchmark set by the legislation is that the “minimisation” of genocidal crimes must be borne out of “racist and xenophobic motives”. Exactly what qualifies as “racist and xenophobic” is anyone’s guess, as is the reason why “racist and xenophobic” minimisation of such crimes is deplorable but minimisation for other means is not.

The law would have a particular impact on scholarly research, if activists were successfully able to convince a judge that any minimisation had racist or xenophobic implications. The events at Srebrenica, for example, where an estimated 8,300 Bosniaks were killed by ethnic Serbs, have been the subject of heated debate over the last decade. General Lewis Mackenzie, Chief of Staff for the United Nations Protection Force in Yugoslavia, has himself denied the figure of 8,300: “Evidence given at The Hague war crimes tribunal casts serious doubt on the figure of ‘up to’ 8,000 Bosnian Muslims massacred. . . . The math just doesn’t support the scale of 8,000 killed.”

Whatever the truth, such scholarly debate would be severely damaged and perhaps even stopped altogether under the new legislation. The pursuit of truth would be cast aside in favour of an unconditional acceptance of the official account of events, and the citizenry’s right to free speech would be completely trampled upon.

This view is echoed by scholars such as Lipstadt, who believes that the facts should stand for themselves. “When you pass these kinds of laws it suggests to the uninformed bystander that you don’t have the evidence to prove your case.”

While one would hope such opposition would prevent the law from passing, there is certainly a precedent for such legislation among European nations. Last February, for example, controversial British historian David Irving was jailed for three years in Austria for denying the Holocaust — something Lipstadt herself decried at the time: “I am not happy when censorship wins, and I don’t believe in winning battles via censorship. . . . The way of fighting Holocaust deniers is with history and with truth.”

This legislation, if passed, will truly be a strike against the already precarious state of free speech in Europe, and pass it probably will: there seems to be no opposition to the directive from national governments or from MEPs and, since most people are not Holocaust deniers, the legislation seems to have gone unnoticed by most of the public. That shouldn’t be surprising, though: the thin end of the wedge rarely meets with much resistance.

First they came for the Holocaust deniers. . .