quality of being honest and having strong moral principles that you refuse to
is not a criminal matter
The Jewish Chronicle
against deniers of the Holocaust is part of a dangerous trend.
In its issue of October 3, the JC ran the story of the arrest, at Heathrow
airport on an EU warrant issued by the German government, of a German-born
Holocaust-denier, Frederick Töben. Mr Töben is actually an Australian citizen.
No matter; he arrived at Heathrow from the USA, en route to Dubai. The
Metropolitan Police arrested him because the German government alleges that he
has persisted in posting material on the internet denying or "playing
down" the Nazi Holocaust of the Jews.
In 1999, Mr Töben served a term of imprisonment in Germany after publishing
pamphlets denying that mass murders of Jews were carried out at Auschwitz.
Following his appearance before London magistrates earlier this month, a
spokesperson for the Community Security Trust was quoted as having praised the
action of the British authorities in executing the EU warrant and as having
expressed the hope "that the German law will take its course".
I hope that nothing of the kind befalls Mr Töben. I hope that the
extradition warrant is quashed, so that Mr Töben is once again free to roam the
world denying the Holocaust to his heart's content. I also hope that not only
will this kind of incident never happen again in this country, but that the
British government will demand that German (and Austrian) laws criminalising
Holocaust-denial are repealed at the earliest possible moment.
A great deal has been written in the press about Töben's disgraceful
treatment. My fellow JC columnist Melanie Phillips has rightly condemned this
treatment as a denial of free speech. On October 10, Anshel Pfeffer correctly
argued in the JC that prosecuting Holocaust-deniers is a waste of money, serving
only to give these odious cretins the attention they crave. With all of this I
heartily agree. But my worries about the Töben case go much deeper.
My worries have to do with the alarming tendency of nation-states to
criminalise the past and, in particular, with a wretched proposal now under
consideration by the European Union, to compel EU member states to enforce
particular interpretations of history under the guise of "combating racism
and xenophobia". This proposal emanates (surprise, surprise!) from the
German government, whose justice minister apparently wants to bring about a
state of affairs in which "publicly condoning, denying or grossly
trivialising crimes of genocide, crimes against humanity and war crimes"
would, throughout the EU, be punishable by between one and three years'
Ask yourself how such a mad law might be enforced, and with what result. Ask
yourself who will decide whether a particular historical event amounts to a
"genocide". Ask yourself by what grotesque yardstick a trivialisation
of, say, a war crime amounts to a "gross" trivialisation.
But as you begin to answer these questions, bear the following in mind. In
Turkey, it is currently a criminal offence to assert that Ottoman treatment of
the Armenians 90 or so years ago amounted to genocide. But in Switzerland it is
a criminal offence to assert the precise opposite. In France, in 1995, the
distinguished Jewish historian of the oriental world and of Islam, Bernard Lewis
(born in Stoke Newington and now professor at Princeton University), was
actually convicted for having written an article (in Le Monde) arguing that,
although the Armenians were brutally repressed, this did not amount to a
genocide because the massacres that took place were neither
government-controlled nor sponsored.
As the distinguished British historian Timothy Garton Ash (a professor at
Oxford) recently reminded us in The Guardian (October 16), according to a French
law promulgated in 2001, slavery has been designated as a crime against
humanity. If, while on holiday in France, I am overheard casually denying that
slavery did in fact amount to a crime against humanity, do I risk being hauled
before the French courts? And if I escape to England will the boys in blue
arrest me here on a French-inspired EU extradition warrant? Or suppose I declare
that the killing of Palestinians at Deir Yassin in 1948 did not actually amount
to a war crime. If the EU proposal were implemented, would I face imprisonment,
just because I had exercised my professional judgment in a way that upset Arab
The task of the historian is to investigate, confront, challenge and, if
necessary, correct society's collective memory. In this process, the state ought
to have no role whatever, none at all. Certainly not in the UK, which delights
in presenting itself as a bastion of academic freedom.
History be Decided in a Courtroom?
Fredrick Töben - Why is he in Prison in London?
Dr Töben is an Australian citizen and founder and director of the Adelaide
Institute and author of works on education, political science and history.
completed a Doctor of Philosophy at the University of Stuttgart in 1977.
1999 he was imprisoned for nine months at Mannheim, Germany, for breaching
Germany's Holocaust Law, Section 130.
202 a judgment was passed in the Federal Court of Australia that prohibits him
from questioning/denying the three pillars on which the >Holocaust-Shoah<
story' legend/myth rests:
World War II, Germany had an extermination policy against European Jewry;
of which they kill six million;
using as a murder weapon homicidal gas chambers.
was further persecuted from 2006 to 2008 in a Federal Court of Australia action
which alleges contempt of court. he is awaiting judgment in this case, and the
prosecution has asked that a prison sentence be handed down.
October 1, 2008 Dr Töben was detained at London's Heathrow Airport on an
European Arrest Warrant issued by the German Federal Authorities, which sought
his extradition to Germany. Andreas Grossmann, the Mannheim district prosecutor
handling Dr Töben's case, said that despite his attempts to avoid extradition
from Britain to Germany, he expected Dr Töben to be on trial early next
Grossmann also warned that Dr Töben faced up to five years in jail and,
although most prisoners in germany served a third to half of their sentences,
the stubborn refusal of long-term Holocaust revisionists to recant their views
meant they usually failed to win parole." 
following letter gives a good summary of the issues involved and was written at
the time of Dr Töben's 1999 imprisonment in Germany, by Robert Faurisson
- former French Professor of Literature.
My friend Frederick Töben
If my Australian friend Frederick Toben is in jail in Germany it is for three
reasons--factors for which I share responsibility.
First, he became a convinced revisionist essentially by reading my own
historical material, of which he has published several articles and essays in
translation in his country.
Second, after visiting me for the first time in Vichy (France), he decided to
investigate the alleged Nazi gas chambers at Auschwitz (Poland) in exactly the
way in which I had advised him to do so: essentially, to examine the remains of
the so-called Nazi gas chamber or Krematorium-II in Birkenau and thus see with
his own eyes that there were no holes in the roof for the alleged pouring of
Zyklon B pellets, and to remark, consequently, that no gassing operation could
ever even have begun in that place, the center of the entire
"Holocaust" story. In other words, to state: No hole, no
Third, it is because, after his second visit, that he decided to go and put some
questions to a public prosecutor in Mannheim named Heiko Klein, although Dr.
Toben and I both knew that he might well be arrested and thrown in jail.
A man deeply attached to his native land and sincerely distressed by the Niagara
of lies told about Germany, F. Toben wanted to achieve something that no
revisionist had yet done. I am the one who supplied him with the tools for the
job in the form of the following ideas:
- *On the one hand, we have "exterminationists" asserting that
Germany committed an unprecedented crime, especially with an unprecedented
- *On the other hand, we have "revisionists" asserting that this
is a lie, a defamation, a calumny.
*The question is, "Who is right?"
- *Where should such a question be put? Should it not be in Germany first,
the people being, in principle, the most concerned?
- *More precisely, the question should be put to "Bonn" (in April
1999, when F. Toben last visited me, Berlin was not yet the capital of
Germany), or to "Ludwigsburg," or to "Arolsen-Waldeck."
- *The trouble is that "Bonn" is interested in "political
truths," not historical truths. The job of "Ludwigsburg" is
essentially to define official truths about this or that camp. "Arolsen-Waldeck"
closed its "Historische Abteilung" in 1978 precisely because the
place was being visited by people asking questions.
And I said to my friend F. Toben that he should go and visit not an
institution in Germany but an individual German, and as a matter of fact, the
right man in the right place was the public prosecutor, Heiko Klein, the
individual who seemed most certain of his right to jail people who did not
respect the official truth about Auschwitz.
I remarked to him that he would thus be the first to go and ask an individual in
authority: "Why exactly do you throw revisionists into jail?" He would
in this way get the answer straight form the proverbial horse's mouth.
This had never yet been done by any revisionist "in camera clausa,"
eye to eye. It would be as if, in 1610, someone visited the presiding judge who
had found Galileo Gailei guilty of heresy. Should we not be keen to have the
account of that man? From a historical point of view, it would be very valuable
today to get an individual answer from Pontius Pilate (assuming that the story
of Jesus and Pilate is not mere fiction).
Of course. Heiko Klein is not a judge, only a prosecutor. Still, his power in
the matter is considerable. His name will go down in history as that of a major
figure in a major historical problem. Why not go and visit this man, even at the
risk of being jailed? History deserves that such risks are undertaken and
sacrifices made, for its sake.
When on the walk back toward his car at the conclusion of our meeting, I
remarked to him: "Frederic, you know, don't you, that you may go to
jail?," he replied, "Yes."
I said "Good luck!," and I, for one, thought that we revisionists were
fortunate to have such people on our side.
There you have essentially what I would say if ever I were allowed to testify in
court on behalf of my friend Frederick Toben.
[Fredrick Töben comments: Since my legal battles began in the
Victorian courts against the Education Department during the early 1980s, even
winning an appeal that I did without legal representation, I realized that in
Revisionism the matters of fact had been done and established, while the matters
of law needed to be challenged. In 1997 I undertook my first world Revisionist
tour, meeting many revisionists, and also venturing into the legal minefield by
interviewing in Germany judges, prosecutors and legal counsels. One such was the
Mannheim prosecutor, Hans-Heiko Klein. During my second world Revisionist trip I
again spoke with legal people, including, again, prosecutor Klein. After we
agreed on a suitable time I returned to his office where he invited me to inform
him of my latest research results at Auschwitz, in particular the position of
the gas induction holes at Krema II. He then informed me that he is arresting
me. To my question why now and not in 1997 he replied that he should have done
it then! My legal intentions 'to challenge German law' made front page
news in our local newspaper, long before I visited Robert Faurisson. This has
led to some commentators misinterpreting my 'walking into the enemy's camp' -
but we must never shy away from confronting those who believe in the
Holocaust-Shoah, especially those that wilfully perpetuate its lies.]
Conclusion: Is it not time that free
discussion of historical events is allowed in society as well as at universities
and other learning institutions? What is there to hide? The truth is a
pre-requisite for the integrity and advancement of society.
Man accused of denying the Holocaust may escape extradition from Britain
New laws should make it easier for the Germans to have Fredrick Töben
extradited for 'racism and xenophobia'.
But the Extradition Act was not drafted
with the internet in mind.
Joshua Rozenberg, First published October 3
A teacher wanted in Germany for the crime of Holocaust denial has been
remanded in custody for a week by a district judge in London.
The German authorities are seeking to have Gerald Fredrick Töben extradited
for conduct that is not an offence under English law. That would not have been
permitted until the Extradition Act 2003 came into force less than five years
Dr Töben, 64, was arrested on a plane at Heathrow Airport on October 1 while
in transit between the US and Dubai. He was detained under a European arrest
warrant issued in 2004 by a court in Mannheim, Germany, where he is accused of
denying the mass murder of Jews by the Nazis during the Second World War.
Lawyers for Dr Töben, who holds Australian nationality, will make a bail
application at City of Westminster Magistrates’ Court next Friday, October 10.
A week later, the German government is expected to apply for his extradition. The first question for the Westminster district judge to decide on October 17
is whether the offence specified in the arrest warrant amounts to an extradition
offence, as defined by the 2003 Act.
Germany is one of the European countries that the Government has
designated under the Extradition Act as a category 1 territory. For conduct to amount to an extradition offence in relation to a category 1
territory, three conditions must be satisfied. The alleged conduct must have occurred in the category 1 territory and not in
the UK. It must be punishable with at least three years’ imprisonment. And it
must fall within the so-called European framework list.
This list is taken from the EU Council Framework Decision of 2002 that sets
out the scope of the European arrest warrant and the surrender procedures
between member states. Among the offences listed in the framework are “racism
Strictly speaking, all that’s needed is a certificate from the German
warrant-issuing authorities that this — or another crime on the framework list
— is what Dr Töben’s alleged conduct amounts to. It would be far from easy
for an English judge to decide whether a German law is covered by terms that are
not legally defined in English law, but this does not seem to be required.
What is certainly not needed is proof that Holocaust denial amounts to an
offence under English law. This “double criminality” does not apply to cases
covered by the European arrest warrant. There is also no longer any role for the Home Secretary to approve or refuse
extradition in category 1 cases.
But it seems to me that Dr Töben’s alleged conduct may not be an
extradition offence after all, even if it comes within the definition of racism
and xenophobia. As I understand it, he is accused of publishing anti-Semitic or revisionist
material on his website. That website is registered in Australia. It can be
accessed in Germany, of course, and so its contents are certainly published
But if it is published in Germany, it is also published in Britain. And
conduct is an extradition offence under section
64(2)(a) of the Act only if “the conduct occurs in the category 1
territory and no part of it occurs in the United Kingdom”.
This restriction on extradition is specifically permitted by Article 4 of the
EU framework decision. It would prevent someone who publishes material that is
lawful in Britain from being extradited to Germany on the basis that the
published material breaches German law.
In Dr Töben’s case, the German authorities would have to establish that he
had published prohibited material in Germany that could not be read in Britain.
Unless there is evidence of printed or spoken Holocaust-denial by him in
Germany, that may be hard to prove.
Speaking on the Today programme, Chris Huhne MP, the Liberal Democrat
home affairs spokesman, seemed to suggest that the English courts could refuse
to extradite Dr Töben on the basis that Article 4 allows further exceptions.
But these do not apply to the listed offences, such as racism and xenophobia. It is only in relation to other offences that a state may refuse extradition
on the ground that the offence for which a person is sought is not an offence in
the country which is being asked to execute the arrest warrant.
The question of whether a fugitive can be extradited even though part of the
alleged conduct occurred in the UK was considered by the law lords in November
2005. Cando Armas, an Ecuadoran, was convicted in his absence by a Belgian court
of trafficking in illegal immigrants and related offences. Armas was said to
have arranged accommodation and fake passports for the immigrants in Brussels
but to have directed the operation from London. Armas
lost his appeal against extradition to Belgium. The law lords decided that
he could be extradited under another subsection of the Act which deals with
offences that are crimes in the UK as well as in the requesting state. That
subsection would not benefit Dr Töben.
But Julian Knowles of Matrix Chambers, author of Blackstone's Guide to the
Extradition Act 2003, says the English courts have tried to make extradition
workable in cases where the law is not clearly worded. "I think the courts would focus on the conduct complained of in the
warrant, as they did in the Armas case," he tells me. The warrant would
have to be drafted carefully.
"On the assumption that the focus of this complaint is on publication in
Germany, then the court would probably hold that the conduct complained of did
not involve anything happening in the UK." However, Mr Knowles also reminds me of a much more principled defence that Dr
Töben could deploy. Section 21 of the 2003 Act prevents the district judge from
ordering extradition if to do so would be incompatible with the Human Rights
It could be argued that prosecution for Holocaust denial is a breach of
Article 10, which protects freedom of expression. But it could also be said that
German law is covered by the second paragraph of Article 10, which permits such
restrictions "as are necessary in a democratic society ... for the
prevention of disorder or crime" and so on.
The double-criminality rule and the need for ministerial involvement in
extradition — still applicable in cases not covered by the framework list —
are safeguards that were designed to protect people from being sent to countries
where they might not receive a fair trial. It is implicit in membership of the
European Union that its member states trust each other to try all defendants
fairly, even though some crimes may not be precisely replicated in each of the
27 member countries.
We might want to try someone in Britain for offences such as stirring up
racial or religious hatred even though, for all I know, they may not be specific
crimes in Latvia or Slovenia. Though anyone charged with such an offence in
Britain might find it easy to enter another EU state, they would not be able to
take refuge there.
The European arrest warrant also ensures that fugitives accused of more
conventional crimes cannot use delaying tactics to avoid justice. We saw this
when the Italians promptly extradited Hussain Osman, who was later convicted of
conspiracy to murder in the failed London suicide bombings of July 21, 2005. Should our commitment to free speech in Britain inhibit us from helping one
of our fellow-EU members to prosecute someone accused of breaking its
Holocaust-denial laws? I believe not.
Germany has more reason that we do in Britain for making such activity
criminal. We simply treat it with contempt or, better still, ignore it. The
Germans do not feel they can afford to do this. I have concerns about the vagueness of the framework list. But I would
certainly not want to see English or European law changed for the benefit of Dr
2008. Last updated October 5, 2008.
Töben’s arrest ‘fatally flawed’, says lawyer
But a district judge in London refuses to consider whether
the alleged Holocaust denier should be released from custody ahead of a hearing
planned for next week.
By Joshua Rozenberg
Last Updated: 11:27AM BST 12 Oct 2008
Fredrick Töben, the alleged Holocaust denier detained in London last week,
was arrested under a “fatally flawed” European arrest warrant, his counsel
submitted today. Ben Watson tried to persuade City of Westminster Magistrates’
Court that Dr Töben should be released unconditionally and allowed to leave the
country. But District Judge Daphne Wickham refused to hear Mr Watson’s
application, pointing out that the case had been listed only for a decision on
bail. A public prosecutor in Mannheim is seeking Dr Töben’s extradition on
charges of “instigation to race hatred, insult and reviling the memory of the
dead”. The charges go back to 2004.
When the hearing opened, Melanie Cumberland, instructed by the Crown
Prosecution Service on behalf of the German authorities, told the judge that
Germany opposed bail for Dr Töben. He had a “strong incentive to flee”, she
said, and no bail conditions would be sufficient.
After speaking to his client, Mr Watson said the bail application would be
deferred until next Friday afternoon, when he would be able to develop the
submissions he has lodged with the court.
In his written application for his client’s discharge, Mr Watson argues
that the European arrest warrant is “plainly defective” because it does not
give enough information about the conduct alleged against his client. Without
that information, the court cannot resolve the issue I raised in my analysis
last week: did any part of Dr Töben’s alleged conduct occur in the United
Kingdom? If so, that would prevent his extradition.
This is how the warrant describes the conduct alleged against Dr Töben:
“From 2000 up to this day, worldwide internet publications of anti-Semitic
and/or revisionist nature. Deliberately contrary to the historical truth, the
said publications deny, approve or play down above all the mass murder of the
Jews planned and implemented by the National-Socialist rulers. The offender is
committing the acts in Australia, Germany and in other countries.”
I surmised last week that this was alleged to amount to “racism and
xenophobia”, one of the offences on the so-called European framework list. It
is indeed, but the conduct is also said to come within an even more vague
framework offence, that of “computer-related crime”. The warrant for Dr
Töben’s arrest on October 1 was issued under section
2 of the Extradition Act 2003.
For the warrant to comply with subsection 4(c) of that section, it must
contain “particulars of the circumstances in which the person is alleged to
have committed the offence, including the conduct alleged to constitute the
offence” and “the time and place at which he is alleged to have committed
Any warrant that does not contain this information is invalid and “cannot
be eked out by extraneous information”, the law lords have ruled
in a previous case.
But, says Mr Watson in his written argument, there is no clear description in
the warrant of the time and place at which Dr Töben is alleged to have
committed the offence. The warrant does not say where he was when the
information was published on the internet. It is not clear whether he is alleged
to have committed the offences in Britain.
It follows, Mr Watson says, that the court cannot even begin to decide
whether the German authorities can rely on the framework list offences — as
they intend to do — because the warrant fails to specify whether any part of
the conduct is alleged to have taken place in the United Kingdom. He also
submits that the description of his client’s alleged conduct is “is simply
too vague to fulfil the requirements of section 2”. The court cannot decide
whether it amounts to computer-related crime; racism and xenophobia; or an
offence under English law.
On behalf of the German authorities, Ms Cumberland handed in written
submissions opposing Mr Watson’s arguments. However, a senior CPS lawyer was
unable to provide a copy of them for the press.
Dr Töben’s solicitor, Kevin Lowry-Mullins, told reporters that the court
would have to define “racism and xenophobia” and “computer-related
crime” before deciding whether Dr Töben’s conduct meets either of these
definitions. The solicitor also argues that Dr Töben is being prosecuted on
account of his political opinions. If established, this would be a bar to
extradition under section
13 of the Act. If the case is not completed on October 17, a further hearing
is planned for November 11. So far, I have heard nothing from Ms Cumberland to
persuade me that the Germans are going to win this one.
First published October 10, 2008
Holocaust denier allowed bail
judge says German extradition warrant ‘not valid’ and must be
Töben granted bail pending appeal by Germany but on strict conditions.
By Joshua Rozenberg
Last Updated: 4:09PM GMT 29 Oct 2008
Fredrick Töben, the alleged Holocaust denier detained in
London a month ago, will be released on bail if he can raise £100,000.
The sum of money is described as “security” rather than a surety because
it must be lodged with the court and not merely pledged.
Other bail conditions imposed by District Judge Daphne Wickham are residence
at an approved address, daily reporting to the police, surrender of all
passports, no participation in public meetings, no media interviews and no
use of the internet — even to receive information.
It is is difficult to see how this last condition could be enforced. In any
event, it may be some days before arrangements can be made for Dr Töben's
release as the district judge ordered inquiries into other passports that he
may have been issued in Australia, where he has citizenship.
Watson, for Dr Töben, applied for bail after the district judge at City of
Westminster Court ruled that the warrant under which his client had been
arrested was not valid. This was because it did not say where and when
he is alleged to have committed the offence, under German law, of Holocaust
merely referred to "worldwide internet publications" and alleged
that "the offender is committing the acts in Australia, Germany and in
court rejected an argument by Melanie Cumberland, for the German
authorities, that the required information could be supplied. The district
court said: "Compliance, in my view, cannot be fulfilled by a drip-feed
of information as and when issuing authority provides it. I find that the
particulars are vague and imprecise, I find the warrant invalid and
therefore discharge the defendant."
added that she had not been required to decide at this stage whether the
alleged crime were valid extradition offences.
Cumberland said the German authorities would appeal to the High Court. As I
suggested in earlier reports, the arrest warrant may have been drafted in a
deliberately vague manner.
the German authorities accepted that the material that forms the basis of
the charge was published in the United Kingdom as well as in Germany, Dr Töben
may have a defence to extradition.
published October 29, 2008
Alleged Holocaust denier released
District judge says German extradition warrant ‘not
valid’ and must be discharged.
Fredrick Töben to leave Britain after Germans abandon their
By Joshua Rozenberg
Last Updated: 11:09AM GMT 21 Nov 2008
Fredrick Töben, the alleged Holocaust denier detained in London at the beginning
of October, is free to leave Britain.
Last month he was told he would be released on bail if he could lodge £100,000
as “security” with the court. Other bail conditions imposed by District
Judge Daphne Wickham were residence at an approved address, daily reporting to
the police, surrender of all passports, no participation in public meetings, no
media interviews and no use of the internet — even to receive information.
It is difficult to see how this last condition could have been enforced. In
any event, the bail conditions were never met. Ben Watson, for Dr Töben, applied for bail in October after the district
judge at City of Westminster Court ruled that the warrant under which his client
had been arrested was not valid.
This was because it did not say where and when he is alleged to have
committed the offence, under German law, of Holocaust denial. It merely referred to “worldwide internet publications” and alleged that
“the offender is committing the acts in Australia, Germany and in other
The court rejected an argument by Melanie Cumberland, for the German
authorities, that the required information could be supplied. The district judge said: “Compliance, in my view, cannot be fulfilled by a
drip-feed of information as and when the issuing authority provides it. “I find that the particulars are vague and imprecise, I find the warrant
invalid and therefore discharge the defendant.” She added that she had not been required to decide at this stage whether the
alleged crimes were valid extradition offences.
Miss Cumberland said the German authorities would appeal to the High Court.
As I suggested in earlier reports, the arrest warrant may have been drafted
in a deliberately vague manner. Once the German authorities accept that the material that forms the basis of
the charge was published in the United Kingdom as well as in Germany, Dr Töben
may have a defence to extradition.
On November 18, Dr Töben's lawyers were told that the German authorities had
abandoned their appeal. He was released from custody. On November 21, his lawyer said that Dr Töben had been given back his
passport and was preparing to leave Britain. He would not be entitled to
For the reasons I have explained previously, I am not surprised that the
extradition case was dropped. I care little for Dr Töben and less for his
views. But I do find it disturbing that he was kept in custody for nearly two
months on the strength of an invalid arrest warrant.
First published October 29, 2008. Updated November 21, 2008.
"If he (Töben) is
suffering from a delusion, let him."
Schueler, spokesman for the Jewish Community in South Australia,
an interview with Channel 7, Adelaide, 3 November 2008