Libel Lawfare in Hungary: a new attack based on an old ‘defense’

Lawfare denotes "the use of the law as a weapon of war" or, more specifically, the abuse of the law and judicial systems to achieve strategic military or political ends. It is generally regarded as a relatively recent phenomenon on the international level, in large part due to the fact that international law took an exponential developmental step in the aftermath of the Holocaust and World War II. Given the nexus between the Holocaust and the progression of the rule of law on national and international levels, perhaps it was only a matter of time until lawfare manifested in turn. The ongoing defamation lawsuit filed by former Hungarian gendarme Sandor Kepiro against the Simon Wiesenthal Center’s Israel director Dr. Efraim Zuroff, who identified Kepiro as a twice-convicted war criminal and called for his imprisonment, is a textbook example of how predatory libel lawsuits are filed as a means of silencing a critic.

The root of this case began during the Holocaust. As Hungarian History Professor László Karsai recounts,

In January 1942 in the Southern region (Délvidék, which was reclaimed from Yugoslavia) during an action taken against Serb partisans Hungarian gendarmeries murdered nearly 3,500 people. There were about 800 Jews among them. The gendarmeries shot their victims and threw their bodies into holes blown in the ice of the frozen-over Danube.

Sandor Kepiro was indisputably one of these gendarmes, but alleges that he only participated in a counter-partisan action, and that “Zuroff should have spoken of Kepiro’s alleged war crimes as opinion, instead of stating them as fact.” Under section 78(2) of the Hungarian Civil Code, “The statement, publication, or dissemination of an injurious untrue fact pertaining to another person or a true fact with an untrue implication that pertains to another person shall be deemed defamation.”

The convergence of cases across a nearly 70 year gap is but one of the unusual aspects of this affair. As Dr. Zuroff wrote in 2009, “To the best of my knowledge, it [the 1943 prosecution of the Novi Sad/ Délvidék perpetrators] is the only case of Holocaust crimes carried out by the forces of a country allied with Nazi Germany, in which the perpetrators were actually prosecuted by their own government in the course of World War II.” Yet instead of serving the 10-year sentence imposed on him by a Hungarian court in 1944 shortly before the Nazis overran Hungary and canceled it, Kepiro is suing Zuroff in order to silence him.

This last point bears repeating: a Nazi hunter is facing a lawsuit designed to silence him because he is working to bring a convicted war criminal to justice for the massacre of hundreds of Jews, Serbs and others under the flimsy pretext of ‘counter-partisan’ operations.

Dismissing ethnically-motivated massacres as simply ‘counter-partisan action’ has been tried before. During the Nuremburg Trials, Soviet Colonel Yuri Pokrovsky asked S.S. General Erich von dem Bach-Zelewski for a clarification about his activities as head of counter-partisan activities on the Eastern Front. “If I understood you correctly, you replied to the question by my colleague, the American prosecutor, by saying that the struggle against the Partisan Movement was a pretext for destroying the Slav and Jewish population?” [Emphasis added] Bach-Zelewski responded, “yes” and his testimony was used to refute a claim set forth by several Nazi officers who attempted to excuse their genocidal murders as military operations.

Why should Kepiro’s variation on the old Nazi theme bear success? The Hungarian Constitution declares that, “In the Republic of Hungary everyone has the right to the free declaration of his views and opinions, and has the right of access to information of public interest, and also the freedom to disseminate such information.” If Dr. Zuroff is silenced, Hungary will have turned its back on both its Constitution and its history. We can only hope that the Court will recognize the grave implications that accompany this predatory attempt to evade justice and rewrite history, and act accordingly.