by Alexis Demirdjian* – Legal Officer at the Office of the Prosecutor, ICTY
A version with footnotes and references is available here.
In early 2012, the French Assemblée Nationale adopted a bill criminalizing the denial of genocides, amongst others that of the genocide committed by the Ottoman Empire against Armenians living on its territory, between 1915 and 1918 (hereinafter “the French Law”). Whilst the good will of the French nation and its friendship with the Armenian community is well received by the descendants of one of the most gruesome chapters of the 20th century, one should handle with caution any attempt to hamper freedom of expression.
For several decades, the Armenian community sought recognition from the Turkish government, as the successor or continuing State of the Ottoman Empire, that genocide was committed by the Ottoman leadership during the course of the First World War against its Armenian subjects. The movement bases its claim on the widespread and systematic deportation and killing of civilians which led to the death of a considerable portion of the Armenian population on Ottoman territory, coupled with letters, telegrams and other documents arguably demonstrating the genocidal intent of the leaders at the time of the events. Several States, academic institutions, scholars and writers have supported this movement and, in academic circles, these events are now largely recognized as genocidal acts.
The crime was first coined in 1944 by Raphael Lemkin; he used the killing of Armenians during the First World War and the killing of the Jewish population during the Holocaust as prime examples of what he called genocide. In 1965, on the 50th anniversary of the symbolic date (April 24th) marking the beginning of persecutory acts against the Armenian civilian population, tens of thousands of citizens demonstrated in the streets of the Armenian capital, Yerevan, demanding that the Soviet Union recognizes the genocide and requesting the erection of a monument in memory of the victims. This day is said to have marked the beginning of the movement for the recognition of the crimes committed against the Armenian population as including genocide.
Not surprisingly, Armenians have been faced with a defendant (rather, its descendant) who has decided to plead not guilty. Physical perpetrators and architects of the genocidal plan died long ago, and the prospects of a criminal trial settling their criminal responsibility have faded. Trials did take place immediately after the First World War before Turkish courts, have been recently translated and published in English and include findings of deportation, abuse of Armenian women and children, and murder of Armenian civilians. Some of the judgments refer to the “massacre”, “destruction” and “annihilation” of Armenians. The official position of the government of present-day Turkey in relation to claims that genocide was committed against Armenians is that, amongst other things, Armenians were relocated during the war and that as a result, a number of civilians succumbed during their journey. The government denies that the Ottoman leadership planned the murder of the Armenian civilian population and that the alleged number of victims is inflated.
The French Law has not persuaded Turkey to recognize acts committed against the Armenian civilian population as genocide. On the contrary, Turkey reacted strongly and temporarily broke ties with France as a result. Many may argue that a muscular stance vis-à-vis Turkey is necessary to highlight the seriousness of the matter and that political pressure might convince Turkey to recognize the crimes committed during the First World War. The French law has been compared to the “Gayssot law” adopted in 1990 in France and articles 130 and 131 of the German Criminal Code introduced in 1985, which both criminalize the denial of the Holocaust. In fact, the French deputy who initiated the bill in 2011 and advocated for the adoption of the French Law, Ms Valérie Boyer, referred to the Gayssot law as a precedent.
The adoption of the Gayssot law faced strong opposition around the time of its adoption as many historians and intellectuals felt that such commemorative laws failed to promote the fight against denial and revisionist theories, and that they adversely affect historical research. The Gayssot law was also challenged, unsuccessfully, before the Human Rights Committee based on the International Covenant on Civil and Political Rights. However, both Ms. Boyer and Mr. Patrick Ollier, the then French Minister for relations with the Parliament, highlighted the fact that the French Law was not aimed at commemorating past events, but rather to criminalize any challenge to the existence of the genocide committed against Armenians with the specific aim of provoking violent acts or hatred against members of the Armenian community.
According to the record of the session held at the Assemblée Nationale in December 2011, what sparked the creation of this law were the rallies and comments made in public forums with the aim of promoting genocide denial, the destruction of commemorative monuments and the publication of revisionist articles in the press and on internet. The objective of the law was to criminalize only the denial of events that are qualified as “genocide” by French legislation: so far, only the genocide of Armenians and the Holocaust have been qualified as such in France.
French deputies present at this session expressed the view, promoted by many, that the denial of genocide is an element of the crime in of itself. It was argued that, as a strategy to destroy the truth, deniers perpetuate the crime committed by the physical perpetrators and their superiors. However, while most, if not all, French deputies agreed that the mass killings of 1915 can qualify as genocide, many felt that France was better off guiding and helping Turkey get to grips with its past, rather than imposing the official government view on the events through the adoption of a law.
Reading the transcripts of the session of the French National Assembly and by viewing the video of this session, one is humbled by the fact that representatives of the French people dedicated nearly four hours of their working day debating the adoption of the proposed law, some for and some against it. All of them eloquently paid respect to the memory of those who perished in 1915. Even deputies who were against the adoption of the law articulated in a sophisticated fashion their opinion, while ensuring that no misunderstanding stemmed from their standpoint, in that their vote against the adoption of the law meant in no way that they questioned whether genocide was committed in 1915. On both sides, valid arguments were raised and many highlighted the inconsistency of having criminalized the denial of the Holocaust but not the Armenian genocide, these two historical events having already been recognized as genocide by French legislation. However, some also wondered why the genocide in Rwanda and other countries were not officially recognized and included in this law.
Despite these objections, the French law was adopted by the French Senate on the 23rd of January 2012. A week later, a constitutional review was launched, resulting in a ruling by the French Constitutional court that the law breached freedom of expression and was, consequently, unconstitutional. At the time, former-President Sarkozy promised that a revised version of the law would be submitted, but the electoral period slowed down the process. His successor, François Hollande, confirmed his commitment to criminalizing the denial of the genocide of Armenians and that work was carried out to “find the appropriate means to do so”.
The senators and members of parliament who submitted the French Law for review before the Conseil Constitutionnel were concerned about the impact of this law on a number of levels. One of the chief challenges was that Parliament was taking the risk of straying into the role of the judiciary and that, unlike the 1990 Gayssot law criminalizing the denial of crimes committed during the Holocaust, no text under international law and no judgment existed in relation to the genocide of Armenians identifying the acts constituting genocide and identifying the perpetrators. An argument could be made, however, to the effect that the trials held in Turkey against the Young Turk leadership immediately at the conclusion of the First World War constitute a valid body of judgments. Regrettably, the conditions under which those trials were conducted and their meager results may have diminished the potential for a long-lasting legacy.
The delivery of judgments relating to war crimes or crimes against humanity does not put an end to discussions and debates amongst historians. Researchers and academics may voice doubts about the validity of judgments and convincingly argue that judges may have erred in the deliberation. Whilst some challenges may be viewed as extreme, respected professors and academics frequently criticize the findings of international courts. Some question whether courts were correct in labeling certain events as genocide. Where it is understood that challenges by some professors are not made with malicious intent but, instead, with a view to furthering discussions on a topic, other challenges might be expressed for less than scientific purposes.
Neither laws nor judgments can, or should, silence opinions. Modern democracies have by now a well-developed body of criminal codes and jurisprudence protecting citizens against libel, verbal threats, moral injury and physical violence. Moreover, France has been one of the States which unequivocally recognized the genocide of Armenians and supported the Armenian community on its territory. However, the new law adopted in January 2012 will not assist the Armenian Diaspora in reaching one of its ultimate aims: a symbolic recognition of the suffering of their ancestors coupled with reparation for lost lands, lost property and lost lives. Another option for the French government could be the use of diplomatic channels to encourage a dialogue between Turkey and Armenia, help Turkey face its past and move into a new era of peaceful relations with its old-time neighbor. A strong movement has already emerged in Turkey with numerous historians, artists and authors advocating the recognition of the genocide of Armenians. Such recognition might become the springboard to opening a dialogue and put an end to the stalemate between both nations.
*Legal Officer at the Office of the Prosecutor, ICTY; Canadian lawyer (Quebec Bar); LL.M. International Law. The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Tribunal or the United Nations in general.