The only people really not allowed to mention the Holocaust

Peta Deutschland v Germany  (No. 43481/09) – read judgment

Referring to the concentration camps has become an offence on a par with holocaust denial, it seem, in certain contexts.

In 2004 the applicant animal welfare association planned to start an advertising campaign under the head “The Holocaust on your plate”. The intended campaign, which had been carried out in a similar way in the United States of America, consisted of a number of posters, each of which bore a photograph of concentration camp inmates along with a picture of animals kept in mass stocks, accompanied by a short text. One of the posters showed a photograph of emaciated, naked concentration camp inmates alongside a photograph of starving cattle under the heading “walking skeletons”. Other posters showed a photograph of piled up human dead bodies alongside a photograph of a pile of slaughtered pigs under the heading “final humiliation” and of rows of inmates lying on stock beds alongside rows of chicken in laying batteries under the heading “if animals are concerned, everybody becomes a Nazi”. Another poster depicting a starving, naked male inmate alongside a starving cattle bore the title “The Holocaust on your plate” and the text “Between 1938 and 1945, 12 million human beings were killed in the Holocaust. As many animals are killed every hour in Europe for the purpose of human consumption”.

Three individuals filed a request with the Berlin Regional Court to be granted an injunction ordering the applicant association to desist from publishing or from allowing the publication of seven specified posters via the internet, in a public exhibition or in any other form. They submitted that the intended campaign was offensive to them as survivors of the holocaust and violated their human dignity.

The German courts considered this issue under the protection of speech under Article 5 of the Basic law. There was no indication that the applicant association’s primary aim was to debase the victims of the Holocaust, as the posters obviously intended to criticise the conditions under which animals were kept and to encourage the spectator to reflect upon these conditions. It followed that the expression of opinion related to questions of public interest and would thus generally enjoy a higher degree of protection when weighing the competing interests. However, in the instant case it had to be taken into account that concentration camp inmates and Holocaust victims had been put on the same level as animals. In the light of the image of man conveyed by the Basic Law, which put human dignity in its centre and only marginally referred to the protection of animals, this comparison appeared arbitrary because the Holocaust victims were confronted with their suffering and their fate of persecution in the interest of animal protection. The debasement of concentration camp inmates was thus exploited in order to militate for better accommodation of laying hens and other animals.

The Regional Court considered that it was not its task to determine from a philosophical or ethical point of view whether the suffering of highly developed animals could be compared to human suffering, as the Basic Law put human dignity in its centre.

This attitude was not reflected in other countries. Earlier in 2004 the applicant association organised an exhibition in Vienna, where the same posters which form the subject matter of the instant proceedings were publicly displayed. A number of Austrian citizens complained, seeking to injunct the exhibition.  The Austrian Supreme Court (no. 6 Ob 321/04f) rejected the request. That court expressed its doubts as to whether the plaintiffs were directly affected by the impugned poster campaign. It considered, in any event, that the impugned campaign was justified by the right to freedom of expression. The poster campaign did not debase the depicted concentration camp inmates.  Conversely, the applicant association had a legitimate interest in publicly addressing its subject even in a drastic way.

Peta’s arguments before the Court

In its petition to the Strasbourg Court, the applicant association relied heavily on the Austrian Court’s position and pointed out that their poster campaign was in no way intended to debase or insult the persons represented on the posters and did not violate any of the plaintiffs’ rights. It was neither trivialising the suffering, nor did it have any anti-Semitic background. The applicant association pointed out that the posters did not depict the applicants and that it was not even certain that all the persons depicted on the photographs were of Jewish Faith. Many persons of Jewish origin would not consider that such a comparison would violate their personality rights and had even made such comparisons in their own publications or had participated in the original planning of the campaign. Holocaust comparisons were not unlawful and had been widely used in public debate.

As far as the injunctions were concerned, the applicants contended they had no legal basis in German law.  The case law quoted by the Government exclusively referred to the denial of the Holocaust, and was thus not applicable in the instant case. The decisions in this respect were devoid of any legal basis and had thus to be considered as being arbitrary.  Freedom of expression constituted one of the essential foundations of a democratic society and a special degree of protection was afforded to expressions of opinions which were made in the course of a debate on matters of public interest. The applicant association accepted that accepted that the historical background in Germany made it necessary to apply specific criteria enabling every person of Jewish origin to take steps against anti-Semitic discrimination. However, this approach was taken too far if every depiction of a person of Jewish origin was automatically considered a collective insult.However, this approach was taken too far if every depiction of a person of Jewish origin was automatically considered collective insult.

 The German courts had failed to weigh the competing interests, having particular regard to the fact that the applicant association pursued objectives of the highest ethical and moral standards, as was further supported by the fact that the protection of animal rights was expressly mentioned in Article 20 a of the German Basic Law. Due to sensory overload through commercials and advertisements, the applicant association was dependent on gaining attention for its cause in drastic ways. It thus did not matter that the applicant association would have had other means at its disposal to express its opinion.

The judgment

The Court rejected these arguments and adopted the approach of the German Regional Court. It accepted that the civil injunctions issued against the applicant association were a proportionate means to protect the plaintiffs’ personality rights and accordingly found no violation of Article 10 of the Convention.

In their partially concurring opinion, Judges Zupanacic and Judge Spielman go even further. They would not allow a comparison of human and animal suffering anywhere, whether or not in Germany or whether or not involving depiction of Jews in concentration camps:

Clearly, these human beings, not only Jewish but of all nationalities, in a concentration camp, are here treated as an instrument for the advancement of animal rights. If their image is so instrumentalised, little is left of their human dignity, I’m certain, even in the context of German constitutional law.

Comment

In their indignation, the judges in the Strasbourg Court would do well to consider the Nobel prize-winning author, J.M. Coetzee. His long career involved strong criticism of the apartheid regime in his early novels such as Waiting for the Barbarians and The Life and Times of Michael K.  The Nobel Prize, following publication of his celebrated novel Disgrace, was awarded in 1993 for  “well-crafted composition, pregnant dialogue and analytical brilliance,” while focusing on the moral nature of his work. Coetzee’s alter ego is the eponymous heroine of one of his novels, Elizabeth Novello, but she appears frequently in his other work. Costello is a lecturer on ethics who tours the world lecturing on topics including the lives of animals and censorship. She draws constant parallels between the plight of animals and that of the Holocaust victims. She also compares those who would rather not know about abattoirs and factory farms with the Poles in the vicinity of Treblinka who chose not to think about the ash on the wind.

No-one slapped an injunction on the Nobel Laureate, nor have they done so when in his various lectures and public appearances across the world he takes on the persona of Costello and renders his audience very uncomfortable on the question of our relationship with fellow species.

So how has Peta perpetrated this terrible infraction? Why has the right to “human dignity” – a principle  reminding the strong that the weak are also entitled to respect for their integrity  – become a basis for censoring any speech that compares our suffering with that of non-human animals? The rights revolutions that brought forth these instruments may have had religious backing in the 18th century, but modern human rights jurisprudence is about curtailing the power of the state, not punishing those who point out the undeniable biological similarity between ourselves and animals; still less is it about slapping down the natural instinct for empathy, hard-wired and established by the neurological observation of our “mirror neurons”. Surely such empathy is at the core of the modern concept of human dignity, not something that threatens to subvert it.

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14 thoughts on “The only people really not allowed to mention the Holocaust

  1. Peter Porter attracted similar problem over the poem ‘Annotations of Auschwitz’
    http://www.poetrylibrary.edu.au/poets/porter-peter/annotations-of-auschwitz-0287036

    I wonder if the text in the banners suffered from any ‘translation/localisation’ difficulties? ‘Austrian German’ can differ considerably from ‘German German’, as Pfizer recently discovered (34 billion fine for using the wrong German variant in an advertisement for over-the-counter-pain medication).

  2. This judgement is terrible. I see no reason NOT to compare human & animal suffering. As a point of interest, were the complainants Jewish? In which case they would have had a personal bias & have been unable to view the adverts as unbiased, reasonable persons, the “man on the Clapham omnibus” test. It should have been thrown out straight away.

  3. The one thing they both have in common is a lack of humanity, factory farm systems are horrifically cruel, relatively long term acts of inhumanity to creatures very capable of suffering. No one would argue the harsh reality that life lives upon life, but because nature is indifferent to suffering should not mean that humanity is indifferent to suffering, the factory farm system states by its existents humanity is indifferent to suffering.

  4. I am very concerned about Section 49 of the judgment: ‘The Court considers that the facts of this case cannot be detached from the historical and social context in which the expression of opinion takes place (compare Hoffer and Annen, cited above, § 48 and Rekvényi v. Hungary [GC], no. 25390/94, §§ 46 et seq., ECHR 1999-III). It observes that a reference to the Holocaust must also be seen in the specific context of the German past (see Hoffer and Annen, ibid.) and respects the Government’s stance that they deem themselves under a special obligation towards the Jews living in Germany (compare paragraph 36, above). In the light of this, the Court considers that the domestic courts gave relevant and sufficient reasons for granting the civil injunction against the publication of the posters. This is not called into question by the fact that courts in other jurisdictions might address similar issues in a different way (also compare Müller v. Switzerland, 24 May 1988, § 36 , Series A no. 133).’
    So, too, are Judges Zupancic and Spielmann – though for different reasons.
    It seems their concern is over being able to exercise Holocaust exclusivity for people allegedly of Jewish extraction. This represents a deliberate attempt to shut down any kind of freedom of expression where anything impinging upon the Holocaust is concerned. The scale is different, of course, but the events of the Palestinian Nakbah never see judges like these rushing forward to remind the world of the gross breaches of human rights which accompanied the ethnic cleansing of 700,00 Palestinians from their homes, with the concomitant murder, rape, looting and destruction carried out by Israeli Haganah, Irgun and Stern Gang members.
    This follows on from the recent Pussy Riot members being sentenced to terms of imprisonment and repeated attempts by clerics to reinstate the “crime” of “blasphemy”.
    We – including the ECtHR – all need to be much more careful about safeguarding our rights and freedoms. This is one of those rare cases where I believe the judges have got it well and truly wrong due to their otherwise objective judgment being affected by the specific emotional aspects of the Holocaust in Germany.
    The law should be the law, right across Europe. The Holocaust is over – let it go !! I personally find the PETA campaign – like the level of artistic expression of Pussy Riot – tasteless; but that is not a good basis on which to remove their freedom of expression. The European Court has erred in this judgment. I hope the Grand Chamber will end up over-ruling it.

  5. While agreeing with the bottom line, as I see it, -that impact on the sentiments of others doesn’t itself argue for censoring speech- photography has certainly messed up the landscape more than this post seems willing to notice.

    That the photos (they could have been motion pictures) became rhetorical devices in a public campaign to favor one set of opinions respecting animals rather than, say, as part of a campaign to redirect human cadavers toward economic nourishment for pet dogs (camera pans to video of a happy dog) or a handy source for skin grafts, seems to me more likely to confuse than clarify. Either it’s OK to deploy extreme images of suffering and degradation of certain persons or certain groups of persons for your chosen campaign, or it isn’t.

    So I think the blog has strayed in hinting at an evaluation of offended sentiments, as shown in its title. Isn’t the right test one wherein the ‘speech’, that is, horrific photos or videos, are deployed publicly in some unpopular, even kinky, cause, and the shocked feelings that these identifiable images arouse are widely shared?

  6. One of the horrors of the holocaust was the extent to which humans were treated like farm animals. They were rounded up, put in cattle trucks, taken to holding pens where they were treated without human dignity, then slaughtered, and had their bodies piled up, again like animals. The shocking nature of this shows that it is degradingly and abusively evil to treat humans like farm animals. In what way does it follow that it is therefore degradingly and abusively evil to treat farm animals like farm animals? Surely to argue publicly and widely with horrific holocaust imagery that farming is like the holocaust is to misuse the memory of the holocaust, not to use it responsibly. It is true that it is evil to slaughter humans as if they are farm animals. It is wrong to suggest that because of this, it is evil to slaughter farm animals as if they are farm animals. For this reason it is correct to ban the campaign.

  7. As president of Jewish Vegetarians of North America, I appreciate efforts to improve conditions for animals, but I think Holocaust comparisons are counterproductive — they enable meat eaters to shift away from a consideration of the many negatives of animal-based diets. We have many powerful arguments related to health, animal-treatment, environmental sustainability, efficient resource use, help for hungry people, spirituality, and more, so we should focus on these while challenging people to shift to vegan diets for their health, the health of animals, and the health of our imperiled planet.

    For further information about Jewish teachings on vegetarianism, please visit the JVNA website (JewishVeg.com) and please see my over 150 articles and 25 podcasts and book “Judaism and Vegetarianism” at JewishVeg.com/Schwartz, and please see our acclaimed documentary “A Sacred Duty: Applying Jewish Values to Help Heal the World” at ASacedDuty.com.

  8. alistair,

    The factory farm system is not the traditional means of bringing animal products to our tables, it is a system developed for expedience and profit with no regard for the creatures in question. It is a disgusting display of inhumanity, if one can do this to creatures we know are very capable of suffering, then what makes you think humanity is very far away from doing this things to their fellow humans. The traditional methods of farming were largely humane, they lived untortured lives, under limited stress until the time of harvest, No, the factory farm system is simply humanly inexcusable, it is an expression of a humanity that says it is indifferent to suffering.

  9. boagie – I completely agree with you! I consider that abusive treatment of animals is utterly wrong and should be proscribed by law. My point was and is that this has nothing to do with the holocaust. I consider domestic violence, the deliberate inflicting of degrading poverty on children, all forms of abuse to be vile, including battery farming. But the abuses of modern farming are different to the holocaust and by putting similar pictures in juxtaposition the claim is that they are the same sort of thing – a false claim. As a meat eater who opposes abuse I think that all farm animals should be treated as decently as possible before they are killed and eaten. I do not think this about any humans. I also would insist that unregulated profit is the key to the abuses of factory farming. If you can make more money out of abuse then people will. If you introduce legislation to say that they can’t do so then they won’t. The removal of ethical regulation to curb abuse, with the aim of maximising profits and to hell with civilised behaviour, has been a major problem in many areas of our society. This also has nothing to do with the holocaust, which wasn’t committed for profit! I want to see strong legislation to stamp out abusive farming practices and to force businesses to make their profits ethically, and I think it’s wrong and counter-productive to campaign for this using holocaust imagery. I hope that clarifies my position! I also think it’s wrong to make holocaust imagery sacrosanct. We can all use WW1 trench imagery and other horrors to make our points, and should be able to do so with holocaust imagery if our point is valid. Human suffering should not be treated as more or less important depending on which group it was done to – that would also be wrong. Therefore the ban on the campaign was done for the wrong reason. They shouldn’t have banned it for the reason they did, and should have done so because the campaign was making false claims for holocaust-similarity. None of this should take away from the bigger picture, which is that abusive treatment of animals should be banned!

  10. “Family Guy” had a talking cow who compared abattoirs to the Shoah and Brian (the dog) said killing greyhounds was like “the holocaust”. A few years ago an ad was withdrawn in German for a car, the slogan “Der Selektion” a play on the idea that no other car would beat it but it was pointed out that in German der selektion was pretty much about the selection at KZ lagers.

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