Extradition will make Dr Toben a martyr
17 Oct 2008

The European Arrest Warrant is a valuable tool, writes Chris Huhne, but it should not be used to restrict freedom of expression

The case of the odious Dr Frederick Toben is destined to become a cause celebre precisely because such hard cases test fundamental liberal principles. ‘I disapprove of what you say’ goes the maxim, ‘but I will defend to the death your right to say it.’ My position is the same on Dr Toben. Dr Toben’s views about the Holocaust are offensive, ugly and wrong. But freedom of speech is the cornerstone of liberal democracy without which all the other freedoms flounder. We restrict that freedom at our peril and only in extreme circumstances (such as incitement to racial hatred and violence).

Much of my political life I have spent fighting racism including anti-Semitism. I was proud to be a member of the path-breaking all-party parliamentary inquiry into anti-Semitism in 2006, and to champion practical measures to tackle its growth in Britain. But I now find myself oddly defending Dr Toben’s right to deny that the Holocaust happened, and to refuse his extradition to Germany under a European Arrest Warrant.

In Dr Toben’s case, the European Arrest Warrant is being used to detain someone who lives in Australia and who was changing planes at Heathrow, but is accused of the offence of holocaust denial in Germany. Dr Toben has not committed an offence under British law or indeed under the law of 17 of the 27 European Union member states. I respect the right of Germany, Austria and others to criminalise Holocaust denial, but I do not want to imitate them. That is why the courts should refuse extradition when they consider the matter today (Friday).

The legal controversy does not end with the use of the warrant. Dr Toben is accused in Germany but his offence is to post on an Australian website. Germany has taken on itself the role of censor, because of the capacity to download content in Germany. It is hard to see where such an attempt to extend jurisdiction might end, or what its chilling effects on freedom of speech might ultimately be.

The legal technicalities may yet stop Dr Toben’s extradition. The arrest warrant is designed to respect each European Union country’s legal system by allowing automatic extradition, although it allows British courts to assess whether someone’s fundamental rights are being challenged. A clause in the legislation also allows our courts potentially to refuse extradition because the offence was committed outside the territory of the issuing member state, and does not allow prosecution here.

At least one member state — Belgium — has already said that it will look behind a warrant to assess whether it should be executed. Poland issues about a third of all European arrest warrants, and are said to treat abortion as murder. However, the Belgians have said that they will not execute warrants for abortion or euthanasia. Belgium’s attitude provides a precedent for refusal.

Whatever the outcome of Dr Toben’s case, though, it highlights why it is important to reopen debate on the arrest warrant. I am not arguing, as the Conservatives do, that it should be ended. In a globalised criminal world, it has proved far too useful in extraditing one of the London bombers from Italy and in shutting down the old Costa del Crime in Spain. In the vast majority of cases, the EU arrest warrant is a good example of how member states can work together to tackle problems much more effectively.

The arrest warrant is extradition for the Ryanair age. If criminals can re-emerge hundreds of miles away in a different jurisdiction within hours of a crime, the state must be able to pursue offenders without the interminable bureaucracy that is such a feature of traditional extradition. But countries must be able to trust each other’s legal systems and the responsible use of the warrant, or the political support for the warrant will wither.

The warrant was principally designed to ensure swift extradition between member states for core offences such as murder, human trafficking, money laundering, organised or armed robbery, rape and terrorism. When the legislation was considered, the Commons committee warned about the inclusion of racism and xenophobia in the list of offences where it was unnecessary to prove it was against the host and issuing country’s law, precisely because of differences in interpretation from one EU country to another.

The cleanest solution would be to exclude racism and xenophobia. But there may be other solutions that respect the essential differences in history and culture from one member state to another. In Britain, we value freedom of speech too highly to see it sacrificed because of the racist views of an oddball academic. Nor should we turn Dr Toben into a misplaced martyr. Strength of argument, widespread outcry and ridicule will defeat the Holocaust deniers. Let us not dignify their status or their argument with prosecution.

Chris Huhne is the Liberal Democrat Shadow Home Secretary.

12 responses to “Extradition will make Dr Toben a martyr”

  1. […] + new article by Chris Huhne MP […]

  2. […] put you in a very uncomfortable position. At Index on Censorship over the past year we’ve had to stand up for racists and Holocaust deniers. My colleague Padraig Reidy was somewhat disturbed to get a Christmas card from one of the leading […]

  3. Karl Pfeifer says:

    Of course one can criticise laws and international obligations, one can question if the law forbidding nazi activities is reasonable. Perhaps it is the case that one does not need a law, to stop nazi activities? Should we then abolish the law against murder? It is clear to everyone that murder has been forbidden since more than two thousand years. Has it helped? People are still murdered. And from the point of view of prevention the punishment for murder is not very effective. And can we be sure that a murderer has mended his ways after being in prison?

  4. Amy Aremia says:

    Dr. G. Frederick Toben’s delays for justice:

    Delays after delays gives one to wonder why?
    Many Revisionists have written facts and opinons about the Holocaust. So much diversity in opionions and facts should be integrated into a meeting of minds on any issue that is the underlying procedure of free interpaly of many different viewpoints from which comes solutions or answers closest to the truth.

    The power elite cnanot allow such freedom to exist in fear tht the collective minds of a truly preprsentative society can hit upon the correct line of action—this principle has grown out of centuries of Anglo-Saxon experience and is now under fire because it gives political freedom, and respects the opinions of all individuals.

    There is no doubt that to eliminate freedom of speech, the envy of tyranny, grew out of the questioning and seeking for answers to facts of Holocaust, the so-called “Hate Crimes Laws” have been forced upon the world. Under such an unjust law, all freedom will wither along with the destsrsuction of independent nations.

    The next step could lead to dictatorship. Dictatorship is not a suit of armor that can be donned and doffed at will. It is a philosophy of life and government in it own right, and once utilized, it may not be discarded without residual effects that are permanent and cumulative, developing a new mode of thought and a mental atmosphere conducive to an ever-easier assumption of authoriatarian techniques, which, in turn, creates an ineffective, valueless, self-sacrificing support.

    There is no finer proof that where moral ideals have been deeply planted the mind can not be enslaved; nor can the enemies of humanity gain possession of an unimparied brain. Muzzled, broken, humiliated, they continue to teach by example.

    The courts, lawyers and judges, members of UK Parliament, all governments of independent nations, serving justice, must rise up againist the radicals in dignity to rescind such an unwarranted and unjust law. These men and women must serve for the benefit of a majority presently unable to realize how much the fight for freedom is really theirs.

    Respectfully submitted, Amy Aremia

  5. The time has come to end the Orwellian-thoughtcrimes laws which protect Holocaust orthodoxy throughout Europe but limit free investigation and inquiry. Throughout Europe it is legal and some might even say fashionable to question or outright deny the deity of Jesus Christ, but expressing doubt about even one element of the traditional Holocaust story results in jail time. The Germans today ban and even burn books. Authors, publishers and researchers are in prison. Only and open and free exchange of ideas on this or any other subject will allow us to understand and learn from our past. Only dogma requires the support of the government, its thoughtpolice and its prisons. Free Toben, Free Rudolf, Free Zundel Now!

  6. Conor Walsh says:

    I don’t think rigid adherence to notional standards of free speech can be justified in all circumstances. And I don’t think we are truly concerned with issues of academic method and discourse. Anti-Semitism in all its lunatic protean forms is on the rise and acts of Anti-Semitic violence are too. The forms of Holocaust denial employed by Toben and others are coded incidences of hate speech which have a real capacity to mobilize the violent and catalyze acts of violence. I refuse to lock myself in an ivory tower and close my eyes to what is happening. If deported to face trial Toben will no more be seen as a martyr than the egregious David Irving. He will have the opportunity to defend his views in a German Court, just as Irving did in an Austrian court. Arguably the forensic cross examination of Irving and the utter discrediting of his so-called research was more of a punishment than the 3 years imprisonment imposed by an Austrian court. I am sure Mr Toben feels he can do better.

  7. JDK says:

    “The case of the odious Dr Frederick Toben…”

    Toben is no more odious than the odious Elie Wiesel. Yet Wiesel gets rich and Toben gets jail.

    I guess it all depends on who you’re rubbing the wrong way.

  8. What sort of Truth is it, that crushes the freedom to seek the truth?

    I wish to express my outrage that the Holocaust, unlike any other historical event, is not subject to critical revisionist investigation. Furthermore I deplore the fact that many so-called democratic states have laws that criminalize public doubting of the Holocaust. It is my position that the veracity of Holocaust assertions should be determined in the marketplace of scholarly discourse and not in our legislatures bodies and courthouses.

    Let’s end ‘thought crimes’ in the twenty-first century. Dr. Toben’s thoughts cannot be killed by his imprisonment.


    Michael Santomauro

  9. Emile says:

    Toben deserves whatever he gets. He’s made a mockery of the dead for many years, and for this there is a karmic debt to be paid. One way or the other.

    Send him to Germany, let them deal with their own and good riddance!

    He’ll be no more a martyr than a common theif or swindler.

  10. Syd Walker says:

    How disgraceful, G. Fabien, that you deny the righteous Mr Hulme the comfort of his opening cliche.

    Is nothing sacred? Is no received wisdom safe from re-examination by revisionists?

    Shame on you and M Faurisson for your infaturation with pesky facts!

    Downright hateful, I say!

  11. J Bayldon says:

    Like Robert Faurisson, I too am reminded of a legend, and like Dr. Toben, I was once heaped with ignominy for asking an innocent and simple question, Additionally, my question also concerned non existent holes in a real and actual roof.
    I was about five years of age and had gone to stay with relatives over Christmas. I was very distressed that I would not get any Christmas presents from Santa, but my aunt tried to sooth my fears telling me that Santa knew about the location of every good little boy and would surely deliver my Christmas presents as usual.
    But I was still upset and told her. ‘But Santa can’t deliver my presents because you don’t have a chimney on your house for him to come down. This set up a wail from the other siblings who would not be quieted. The fact- which had previously escaped them- the absence of chimney on this all electric house was a fact, and this fact meant only one thing- no Christmas presents.
    Even worse- my little brother suggested a solution, but one so dismal (as befits his dark sense of humour) it left us all terrified and in dread of Santa:
    ‘He will have to come through the filthy drains and out of the toilet, and he will be covered in poo, and all our toys will have poo on them.’ he suggested.
    Dr. Toben, as most of us, has read the testimony of the Nazi trials where cackling Nazi guards poured insecticide through holes in the concrete roofs onto the screaming Jews below, we may have seen the Hollywood dramas, as the ever Seig Heiling Nazi caricatures, their right arms going like locomotive pistons, sneered and cackled away.
    But I have seen the film of these buildings too- there were no holes for the cackly cartoon Nazis to use. I have also seen the allied aerial photographs- available on the internet- no holes in any roofs.
    No holes= no gas chamber= no Holocaust- lying bastards.Lying bastards who had people hanged for no crime, who have spread poisonous hatred, more toxic than all the decontamination powder, for the last Sixty years.Lying bastards so afraid of the truth they have banned it. Lying bastards who have with their fire bombs (See Ernst Zundel Tony Hancock- bookstore burnings) character assassination, and show trials, terrorized politicians- as we see evidenced above, where even the few individuals like Mr. Huhne, who dare to speak up, are obliged for fear of the Jews vengeance, to describe Dr. Toben’s clearly harmless enquiry in such intemperate and rather daft language. “Dr Toben “odious”(*). Dr.Toben’s views about the Holocaust are offensive, ugly and wrong” Then in an attempt to distance himself further, goes out of his way to cite his impeccable pro Jewish credentials- there goes a terrified man,(*) (Though one presumes a fragrant- not ‘odious’ one) and all the greater credit to him for standing up for his principle- that is if crawling on ones belly while wagging ones tail and fawning can be construed as ‘standing up’ And what is the source of all this vitriol and distancing? It is the simple, honest and decent question that Dr. Toben asked of the Jewish wise man: ‘How did they get the poison into the gas chamber when there were no holes in the roof?’ and ‘Why did all those witnesses claim that there were holes in the roof when this was plainly untrue.’
    The true answer may perhaps be the one which my aunty sold us kids that Christmas eve long ago:
    ‘Santa is magic, he can fly through the roof with his magic powers. Possibly those Nazis were magic too. Yes that must be the answer. Please don.t jail me, for I’m a true believer too.

  12. G. Fabien says:

    Here is an article about Toben and his activities. Note on Voltaire quotation at the end. GF

    Robert FAURISSON 22 August 2000

    The “Toben Case” as seen by Voltaire

    For the historian, the sociologist, or the jurist, the case of Australian revisionist Fredrick Toben is one of the simplest and most instructive. It is also both appalling and amusing.

    One day, moved by curiosity, this German-born Australian left the antipodes on a journey to Europe in order to confer with an individual who had coined the phrase « No holes, no “Holocaust” ». From there he went on to Poland, to Auschwitz, where with his own eyes he observed that, in the effective absence of any “holes” in the collapsed roof of an alleged homicidal gas chamber, there was cause to doubt whether such chemical slaughterhouses had ever existed at that spot, the veritable centre of the “Holocaust”. Finally, on a pilgrimage to the Germanic lands, he shared his doubts and asked for explanations, an act which earned him forthwith a stay in prison.

    Voltaire would have liked this “affaire Calas” (of a less tragic sort). From it he could have drawn inspiration for a tale entitled: The Emperor’s New Clothes or The Imposture. It seems right to imagine that, as in a classical French play, the story should evolve in five stages.

    In the first of these stages, our hero from the other hemisphere hears tell that a certain European emperor, dear to the Jews and thus also to today’s Germans, is, in the eyes of his court, bedecked in the most extraordinary attire, whilst in reality he is quite simply naked. It is said that some ingenious rascals had pretended to create for the emperor garments of an exceedingly rare cloth, costing a fortune. In the next stage, our Australian, modern-day Huron of the Voltaire tale Le Huron ou l’Ingénu, armed with some advice on how to carry out his inquiry arrives in Europe and prepares to see for himself. Once on location, he gets the impression that this emperor could well be naked. In a third stage, he proceeds to inquire of those around him, going so far as to whisper to the courtiers: “Is your emperor perhaps naked?” For want of a fitting reply, he resolves to go to the Germanic lands and consult a man of the craft. This latter person, most certainly a German and perhaps a Jew as well, has a reputation, the world over, for such good knowledge of the solution to the riddle that he will not abide any answer other than his own. This individual, prosecutor of woeful mien, invites the sceptic to come back to see him the next day in order to get his answer. This our Australian does not fail to do. There, in the prosecutor’s study, with a stranger present, he is asked to repeat his question. Which he does. And so it is that, in a fifth and final stage, the question-man finds himself behind the bars of a German jail.

    In the reality of the Toben case, the prosecutor was a man called Heiko Klein, the stranger was a police officer and the jail was, for seven months, that of Mannheim.

    What followed would equally have inspired Voltaire. It throws a stark light on the way in which the German justice system works at present and on the mode of conduct adopted by a large number of Western democracies as soon as the most hallowed of their taboos, that of the “Holocaust”, appears to be in peril.

    Removed from his jail cell, F. Toben, in handcuffs and duly escorted, was led into a courtroom. But, given the gravity of his case, he had the right only to a mock trial. He was, of course, provided with counsel, but the latter was made to understand that he would do well to keep quiet if he did not want to join his client in prison. The lawyer kept quiet and F. Toben was found guilty, sentenced to time served and a heavy fine, and then released on bail the next day.

    In Australia, the authorities were careful not to intervene in favour of the victim. Indeed they fell little short of applauding the German judges’ decision, most likely envying the German magistrates freedom of action.

    In the rest of the Western world, everyone, by and large, fell into tune with Germany and Australia. The “élites” in place kept silent or approved. None of them got the idea of decrying an outrage. No petitions in support of the heretic, no demonstrations. “Amnesty International” considered it natural and normal that an intellectual, an academic should be so treated. In effect, precisely because he is a professor, many must be of the opinion that F. Toben surely ought to know that some questions simply offend decency.

    Twenty years earlier

    Twenty years previously, I myself had lived through an experience comparable to that of my Australian colleague. In the columns of Le Monde (Feb.21, 1979), thirty-four French historians — among whom some, like Fernand Braudel, enjoyed international renown — had issued a joint declaration rebuking me for having put a question that propriety should have forbidden me to conceive.

    I had discovered that the existence and operation of the alleged Nazi gas chambers were, for physical and chemical reasons understandable to a child of eight, fundamentally impossible. In the late seventies I had therefore asked Germany’s accusers how, for them, such mass murder by gassing had been technically possible. The answer took some time in coming, then gushed forth:

    It must not be asked how, technically, such mass murder was possible. It was technically possible, given that it took place. That is the requisite point of departure of any historical inquiry on this subject. It is incumbent upon us to simply state this truth : there is not, there cannot be any debate on the existence of the gas chambers.

    I had the awkwardness to think then that I had just brought off a decisive victory. My adversaries were taking flight. They showed themselves to be unable to reply to my arguments except by spin. For me, the myth of the alleged gas chambers had just breathed its last.

    Pressac’s surrender, Spielberg’s triumph

    Of course, from a scientific standpoint, those gas chambers had fallen back into nothingness. The following years were to confirm this. From 1979 to 1995, every attempt to demonstrate their existence would abort: the Rückerls and Langbeins, the Hilbergs and Brownings, the Klarfelds and Pressacs would all suffer the most humiliating failures. It is not I who say this but rather one of their keenest apostles, historian Jacques Baynac. In 1996, in two long and particularly well-informed articles, this fierce opponent of the revisionists drafted, with a heavy heart, an assessment of the vain tries to establish the existence of the Nazi gas chambers (Le Nouveau Quotidien [of Lausanne], Sept. 2 and 3, 1996). Baynac’s conclusion: the historians had failed totally and, as a result, recourse was had to the judiciary in order to silence the revisionists.

    In March 2000, Jean-Claude Pressac was, in a way, to announce his own surrender. On this point one may read an interview with him published by the French academic historian (and staunch anti-revisionist) Valérie Igounet in her book Histoire du négationnisme en France (Paris, Éditions du Seuil, 2000, p. 613-652). The last two pages of the interview are staggering: J.-C. Pressac states that the “rubbish bins of history” await… the official story of the concentration camps! This text of a recorded talk, supposedly of June 15, 1995, must have been somewhat modified afterwards.

    But, as is well known, the sphere of science, on the one hand, and that of the mass media, on the other, are plainly different in nature. In the latter sphere, while the Nazi gas chambers have had a very rough time of it, the adjoining myths of the genocide and the six million have prospered thanks to a thunderous promotion. Hilberg and his like may have failed in their work as historians but Spielberg, the master of special effects cinema, triumphs with his holocaustic epics. Today, the kosher version of Second World War history has force of law and of custom to such a degree that the nasty “deniers” seem annihilated.

    The particular case of F. Toben

    Nevertheless, a number of these rebels called revisionists remain alive, and very much so, to the despair of the thought police and their lackeys in the prosecution service, the judiciary, and the media. Among these revisionists stands F.Toben, who, upon leaving prison, did not have the decency to show the least contrition or, as is said today, repentance. It may be feared that, for him, the emperor (of the Jews) will stay definitively naked, and that he will continue going about repeating “No holes, no ‘Holocaust’”, or, in allusion to the non-existent fabric , “No clothes, no ‘Holocaust.’”

    Beginning with the indomitable Paul Rassinier, a good many other revisionists besides our Australian have endured or still endure a thousand travails. A few months ago, one of them, in Germany, was driven to suicide. Werner Pfeifenberger, a professor in Münster, killed himself on May 13, 2000 after years of an exhausting struggle against his persecutors. On 25 April 1995, in a Munich square, Reinhold Elstner immolated himself by fire.

    What distinguishes the revisionist Toben’s case from that of others is its simple and swift unwinding, and therefore its illustrative value. One might call it a synopsis, an all-in-a-nutshell sketch. It is nothing but the story of a man who, for having made a prosaic remark on a material fact, finds himself in prison. To whoever cared to listen, he had, in fact, held forth thus: “At Auschwitz-Birkenau, day after day, a deadly substance was apparently poured through four openings, specially made in a reinforced concrete roof, so as to kill, each time, the thousands of persons confined in the room below. How could such an operation be possible given that manifestly, as one may remark today, none of those four openings ever existed? Of course, the roof is now in ruins but, on the surface, no trace of those openings can be made out and, if one slides down beneath the ruin, one can see also that the ceiling has never had any openings in it. How do you explain that?” He received no answer. Then, he sought out a man who, by definition, must know the answer to his query (and the answer to several others of the same calibre, — material and rudimentary). As his only reply, that individual deemed it necessary to throw the inquirer into jail. But, once out of jail, what did our impertinent friend do? He repeated his question, but this time urbi et orbi, and with renewed vigour.

    A story edifying in its brevity, and not without spice.

    Toben in an Ingénue Role from a Tale by Voltaire

    I shall say it again: a Frenchman familiar with Voltaire is tempted to see in this antipodean a reincarnation, in his own mode, of Candide or the Huron (the original Ingénu). Under Voltaire’s pen, the ingenuousness, real or feigned, of those two heroes, wholly of his imagining, ended up putting them through numerous ordeals — but it also helped them overcome adversity, and not without providing some interesting perspectives for the reader on the beliefs and superstitions to be found at the foundations of our society and institutions. The story of Fredrick Toben (German as was, in fact, Candide) would probably have appealed to Voltaire on another score, that of the execrable intolerance of the Jews and their high priests (See : Henri Labroue, Voltaire antijuif [Paris, Les Documents contemporains, 1942].)

    Today, in France, the re-editions of some of the works of the “patriarch of Ferney” are expurgated, for fear of displeasing the Jews. No one can doubt that, if he came back to this world, Voltaire, following Toben’s example, would be “put inside” for his disrespectful questions. Even Switzerland, where in his time Voltaire knew he could find refuge, would today not fail to lock him.


    A note to the reader : Voltaire (1694-1778) was notably the author of Candide ou l’Optimisme (philosophical tale, 1759), Le Huron ou l’Ingénu (satirical tale, 1767) as well as the Dictionnaire philosophique ou la Raison par alphabet (1764). He intervened in a series of court cases, such as that of the Calvinist Jean Calas, to speak out against what he called the crimes of intolerance or of superstition. He spent his last twenty years at Ferney, near the Swiss border.

    Note on a false attribution to Voltaire: It is by mistake that the following remark is attributed to Voltaire: “I disapprove of what you say but I will defend to the death your right to say it”, sometimes with the adjunct “Monsieur l’abbé…”. In reality, a London author, in a book published in 1906, wrote the following, on the subject of the attitude taken by Voltaire in case of intense disagreement with an adversary: ”I disapprove of what you say but I will defend to the death your right to say it was his attitude now.” The author was called Stephen G. Tallentyre (real name: Evelyn B. Hall) and the book was entitled The Friends of Voltaire. Source : Paul F. Boller Jr and John George, They Never Said It: A Book of Fake Quotes, Misquotes, and Misleading Attributions, New York and Oxford, O.U.P., 1989, p. 124-126. Such,anyway, is the information that I have drawn from an article in L’Intermédiaire des chercheurs et curieux (Nov. 1993, p. 1157), kindly sent to me seven years ago by the Belgian revisionist Pierre Moreau, to whom I had confided my failure to find the remark in any of Voltaire’s writings.