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Evolving French Memory Laws in Light of Greece’s 2014 Anti-Racism Law

0 Comments 🕔20.Feb 2015

This article is part of our Genocide Denial and the Law feature.

Monument to the Armenian genocide in Aix-en-Provence. Photo credit: Gustave Deghilage

 

by Vivian Grosswald Curran

Time is irreversible in the same way that man is free: essentially and totally.”

Vladimir Jankélévitch[1]

 

Greece enacted a law in September 2014 to criminalize and impose stiff fines for the denial of genocides, including the Holocaust, the Armenian genocide, or any other genocide that an international tribunal or Greece’s Parliament recognizes to have been one.[2] Parliament acted, so to speak, as if the Nobel Prize in Literature was being conferred on Modiano for writing about Nazi victims in occupied France. The Nobel Committee praised Modiano’s “art of memory” in “evok[ing] the most ungraspable human destinies …” “Ungraspable” appears in French as “insaisissable,” that which cannot be seized, held fast, as time itself cannot be. Where the past relates to events whose extremity is such as to defy imagination or be “ungraspable,” later denial of their veracity may be all the more likely to appear reasonable the greater the passage of time, and the fewer the eyewitnesses remaining alive to tell the truth. The postwar and post-colonial world has not been wanting in discourses of victimhood, sometimes contradictory, sometimes competing. Since a law against Holocaust denial in 1990 triggered a flurry of what have been known as other “memory laws,” France has debated with increasing vigor whether law is the appropriate arena for safeguarding the memory of historical truth.

Page of the French Code Civil from 1804.

Page of the French Code Civil from 1804.

After all, the art of the fiction writer, from Modiano to Kertesz, both Nobel laureates who have conveyed the “ungraspables” of genocide often through metaphorical indirection, may be the aptest way to convey a glimpse into the unimaginable. On the other hand, the voice of law can give another form of credence, especially where the relation of law to citizenry has a stronger element of pedagogy, as it tends to in states with a civil law tradition, like those of continental Europe, than it does in those with a common law tradition, like nations whose legal orders were established in or borrowed from England. These legal systems are accompanied by a somewhat differently envisioned and experienced version of the Rousseauist social contract.

Greece’s new law seems to be perceived as oriented in large measure towards punishing the denial of the Armenian genocide of 1915,[3] although it is not restricted to that massacre by its terms. Moreover, it arises in the particular context of Greece’s severe economic woes and the rise of the Golden Dawn, a far-right nationalistic, anti-immigrant, and anti-Semitic party.[4] France has a longer experience than Greece with memory laws, including laws concerning the denial of crimes against humanity and genocide, the most recent of which died on its arrival to the Constitutional Council in 2012. It had been passed by the French Parliament in that year, and was generally understood to be targeted specifically at punishing the denial of the Armenian genocide, although, like Greece’s law, its terms were not expressly limited to any particular event. It was proposed in an election year by a National Assembly representative with a large French-Armenian constituency, and challenged in the Constitutional Council, according to normal French legal and political procedure, immediately after passage but before entering into force.

Three years later, as Greece begins its experience with its newly reinforced criminalization of genocide denial, the same French politician has drafted a newer version of the Armenian genocide denial law that failed in 2013. It purports to address the reasons for which the Constitutional Council rejected the last one and therefore to have a better chance of withstanding future challenge. President Hollande stated only a few months ago, in April 2014, that he fully supports such a law. It seems less likely than in 2011 and 2012, however, that Parliament will be eager to pass this one, given the gradual shifts that have taken place in the public’s attitude to memory laws in general and the French Parliament’s reasons to fear that the European Court of Human Rights (ECtHR) will condemn France if such a law is enacted today.

France’s experience over the years may be germane to Greece’s future as an illustration of the role that a country’s cultural and historical contexts play in why such laws originate, and how they evolve. French experience also bears examining in light of the ECtHR, which has condemned France in some cases for its national courts’ applications of its anti-denial laws, while supporting it in others. ECtHR case law suggests that Greece’s new law may well undergo difficulties if challenged in that court, despite the European Union’s 2008 Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law, which indeed exhorts Member States to punish genocide denial.[5]

France, like Greece, underwent defeat, occupation, terrible political repression, massacres, and deportations at the hands of Nazi Germany during the Second World War. Unlike Greece, however, whose war-time puppet government the Nazis affirmatively set in place,[6] France selected its own collaborationist régime in July of 1940 in a democratic process that on its surface followed the procedures of the Third Republic.[7] Yet after the war, de Gaulle maintained that the collaborationist government under Pétain, known as Vichy, had been no more than Germany’s puppet. To simplify historical events, this position had two principal causes. The first was that it had been the consistent position of the Free French whom de Gaulle had led throughout the war years from London.[8] The argument was that France’s Constitution had never given Parliament the right to overthrow the entire system of government, and to destroy the Republic, as it had done in July 1940 when France ended the Third Republic to form the État français, and that, therefore, Vichy France was illegal. Vichy’s illegality permitted de Gaulle to claim that he incarnated the legitimate government of France in exile. It is widely accepted that after the war de Gaulle also perpetuated the myth of a unified France of resisters in order to unify France, and put an end to the brutal fratricide of the épuration period that followed Liberation. During that time, former collaborators were denounced, sometimes tortured, and often brought to a crude justice through makeshift trials.

As the decades passed, however, this initial viewpoint proved increasingly unsatisfactory for the needs of historical truth and a new generation. Moreover, this constitutional law argument would be one cause of the approximately half-century delay in trying native sons in France for their crimes against humanity. By the 1970s, Holocaust denial or minimization had begun in France.[9] Two decades later, the first of a succession of memorial laws was enacted, the loi Gayssot.[10] It prohibits acts that are racist, xenophobic, and anti-Semitic, including Holocaust denial. By 2001, France had enacted a law to recognize the Armenian genocide of 1915, but, unlike the loi Gayssot, violations were not punishable by criminal penalties, a continuing source of contention in the French-Armenian community.[11] The same year, the loi Taubira recognized the slave trade and slavery as a crime against humanity.[12]

The use of law to define history was always controversial to some extent, but it became a matter of intense debate in 2005 in France, with an ensuing explosive reaction among historians of note, when the government enacted a law to require that French schoolchildren be taught that France’s historical role in North Africa and elsewhere abroad had been positive.[13] The outcry was such, particularly in light of growing evidence that France had practiced torture as routine policy during the Algerian war, that the law was repealed a year later.[14] Among the most eminent of French historians, Pierre Nora, who had edited a magisterial, multi-volume work titled Lieux de Mémoire, literally Sites of Memory, led a movement to combat all laws that purported to define, and therefore control, history. In 2008, he co-authored a book titled Freedom for History (Liberté pour l’histoire).

Pediment above the entrance to the offices of the French Constitutional Council.

Pediment above the entrance to the offices of the French Constitutional Council.

By the time the Armenian community in France got a genocide law with bite to it, a fierce war against laws dealing with history and memory had affected public and perhaps legal perceptions. When this law with the criminal penalty was challenged, the Constitutional Council rejected it as an impermissible incursion into freedom of the press, a constitutionally guaranteed right, and therefore one a mere French statute could not violate. The Court distinguished this second Armenian genocide law from the 1990 loi Gayssot, prohibiting Holocaust denial with criminal sanctions, on the basis that the latter is defined according to the terms of the International Nuremberg Military Tribunal as annexed to the London Agreement of August 8, 1945, a treaty established by four nations, and not on the basis of a domestic statute. Under French domestic law, international law trumps French law and is automatically incorporated into it.

While the events described above were taking place in France, the ECtHR had been developing its own case law with respect to the balance between freedom of expression and a State’s legitimate rights to control the expression of hate, racism, xenophobia, and the denial of past atrocities. France had been the object of some of the claims brought to the ECtHR by former defendants who had lost in the French national courts pursuant to anti-racism or “memory” laws, and who claimed that their right to freedom of expression had been violated.

In 1998, the ECtHR ruled against France in a case that involved Isorni, the attorney who had defended Pétain at his postwar trial for treason.[15] Isorni continued to believe in Pétain so deeply that 50 years later, as a man now in his nineties, he still was trying to exhort his countrymen to remember Pétain as a great leader. To this end, he published a newspaper advertisement, suggesting that the former dictator had protected the nation from the Nazis during the Occupation and had done everything in his power to save the country. An association of former Resistance members brought suit in criminal trial as parties civiles.[16]

The French Supreme Court held that Isorni and fellow defendant, the association to vindicate Pétain’s reputation to which he belonged, could be found guilty of “justifying the crime of collaboration with the enemy,” but owed only nominal damages of one franc to the civil plaintiff victims. The defendants appealed this verdict to the ECtHR, claiming their fundamental right to freedom expression had been violated. The ECtHR agreed, finding that France had exceeded its discretionary margin of appreciation. Isorni’s advertisement nowhere had denied the fact of Pétain’s collaboration, only the motive behind it. The ECtHR found that the latter was fair game for debate, and that with the passage of time from the date of relevant historical events, what might once have come within the legitimate ambit of a State’s control when events were still proximate in time, may later cease to do so.

Eight years later, France was condemned again in the case of Giniewski v. France.[17] The applicant had written an article in reaction to a Papal encyclical. Born in 1926, the Giniewski theorized that parts of the Catholic Church’s positions and teachings in the modern era had facilitated the Nazis’ extermination project against the Jews. The Association against Racism and for the Defense of French and Christian Identity (AGRIF) brought a criminal action as parties civiles for racial defamation (a criminal offense in France) against the Christian community. The national courts of France upheld the action’s civil dimension, although awarding only a symbolic franc in damages, whereupon the defendant appealed that one franc sentence to the ECtHR.

The ECtHR agreed with the applicant, emphasizing the fundamental nature of Article 10 of the European Convention on Human Rights, vouchsafing freedom of expression, the same article that had outweighed France’s arguments in the Isorni case, and noting that the right to offend and even shock comes within Article 10’s purview. While granting that States have varying acceptable perceptions of legitimate controls of freedom of expression regarding religious matters, the ECtHR underscored that the applicant’s opinion article had not attacked any religion; rather, it had criticized a specific papal encyclical and presented a theory that was of contemporary importance to ongoing historical debate and democratic society. The ECtHR cited Isorni for the principle that crimes against humanity debates are shielded by Article 10 because they are of especially great value to ongoing public discourse in democratic societies.

The most recent and relevant ECtHR case is Perincek v. Switzerland.[18] The applicant was a Turkish national who, while in Switzerland, violated the Swiss Criminal Code by publicly denying the Armenian genocide of 1915. In Swiss court proceedings, there was some question as to whether the relevant law applied to denial of any genocide beyond the Holocaust. The Swiss courts decided that it did, inasmuch as the Armenian genocide had been established as a matter of historical consensus, also finding that the defendant was motivated by racism.

After discussing the Council of Europe’s 1997 Recommendation to prohibit hate speech in light of the “resurgence of racism” in the contemporary period, the ECtHR discussed laws throughout European States and North America. The Court noted in particular the French Constitutional Council’s rejection of the amended Armenian genocide law for failing to be based on an international consensus, such as that represented by the International Military Tribunal, annexed to the London Agreement of August 8, 1945. It quoted the French decision’s reasoning that a law which criminalizes so as to impose punishment and in so doing restricts a fundamental right such as freedom of expression, must rely on something more than merely another national law, as opposed to an international treaty.

The Perincek applicant had introduced into evidence writings by Pierre Nora’s group, noted above, concerning the right for historians to be left free from government interference with history through governmental measures dedicated to forcing only one memory of the past upon the present generation. The ECtHR once again was evaluating how to weigh Article 10 against each country’s right to exercise some control over speech it deplored as racist. It defined its own task as deciding if Switzerland’s law in repressing the applicant’s free expression corresponded to a “pressing social need.”[19] As in Isorni and Giniewski, the Court made clear that it took no position on the actual historical events, as this would not be an appropriate judicial function. While the majority opinion relied heavily on the French Constitutional Council, a concurring opinion pointed out that there might be situations in which the sorts of laws so far allowed by France might not suffice to meet pressing social needs of a State, but then it would be, presumably, because the one who violated national hate speech law had also incited to violence. The ECtHR majority itself had pointed to a precedent in which it had held the application to be inadmissible, Garaudy c. France.[20] There, after French courts had convicted a revisionist author for disputing Nazi crimes, Garaudy had sued France for repressing his freedom of expression, but the ECtHR found that Garaudy’s purpose was to be revisionist and therefore to work against “justice and peace,” core values of the European Convention.[21]

Thus, to the extent that national concerns to prevent violence and upheaval are legitimate goals in enacting anti-racism legislation, Greece’s new law may have a chance of surviving ECtHR challenges where the Swiss law failed in Perincek, and where the ECtHR seemed to suggest agreement that France’s second Armenian genocide law would have failed had it not been rejected as unconstitutional by France’s own Constitutional Council. Whether these concerns would be deemed germane to denials of the Armenian genocide, as opposed to the Jewish one, in the context of today’s Greek society remains more doubtful, unless the Greek government would be able to show a pressing need to protect Armenians today in Greece.

While Garaudy stood for the ECtHR’s continuing commitment to fight against racism, including where it manifests itself through expression, nevertheless it was a 2003 case. In the decade that has passed since then, both the ECtHR and France have been evolving toward ever-greater skepticism of government’s role in defining history.

 

Vivian Grosswald Curran is Professor of Law at the University of Pittsburgh. In her past scholarly work, she has frequently addressed issues of law’s relation to history and memory, particularly with regard to the French and German contexts arising from the Second World War. From 2004 – 2006, she was the U.S. member of the Austrian General Property Settlement Fund, which adjudicated claims for compensation arising from Nazi expropriations of 1938-1945 on the territory of Austria.

 

This article is part of our Genocide Denial and the Law feature.


[1] L’irréversible et la nostalgie 7 (1974).

[2] See Harut Sassounian, “Greece: Third Country to Criminalize Denial of the Armenian Genocide,” Asbarez.com (September 16, 2014), available at <http://asbarez.com/127003/greece-third-country-to-criminalize-denial-of-the-armenian-genocide/>.

[3] See Ibid.

[4] Ibid.

[5] Council Framework Decision 2008/913/JHA. Article 1 (1)(c) directs States to take measures to punish acts against “racism” and “xenophobia,” which explicitly include “publicly condoning, denying or grossly trivialising crimes of genocide, [or] crimes against humanity …”

[6] See, e.g., Priscilla Roberts, ed., World War II: The Essential Reference Guide (Santa Barbara, CA: ABC-CLIO, 2012), 110.

[7] For a detailed account, see Vivian Grosswald Curran, “The Legalization of Racism in a Constitutional State: Democracy’s Suicide in Vichy France,” Hastings Law Journal 50, no. 1 (1996).

[8] See René Cassin, Un coup d’État, La soi-disant constitution de Vichy (1943).

[9] See, e.g., Pierre Vidal-Naquet, Les assassins de la mémoire (2005).

[10] Loi 90-615, 1990 J.O. p. 8333.

[11] Loi 2001-70 du 29 janvier 2001 relative à la reconnaissance du genocide arménien de 1915. J.O., 30 jan. 2001, p. 1590.

[12] Loi 2001-434, J.O., 23 mai 2001, p. 8175.

[13] Loi 2005-158 du 23 février portant reconnaissance de la Nation et contribution nationale en faveur des Français rapatriés, J.O. 23 fév. 2005, p. 3128.

[14] Décret no. 2006-160, J.O. du 16 fév. 2006.

[15] Lehideux et Isorni c. France (55/1997/839/1045), 23 sept. 1998.

[16] For an explanation of this institution, see, e.g., Vivian Grosswald Curran, “Globalization, Legal Transnationalization and Crimes against Humanity: The Lipietz Case,” American Journal of Comparative Law 56 (2008): 363–401.

[17] 45 EHRR 23, IHRL 3193 (ECHR 2006), January 31, 2006.

[18] Application 27510/08, available at <http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-139276>.

[19] Perincek, §98, citing Mouvement raëlien Suisse c. Switzerland [GC], no. 16345/06, §48, ECHR 2012; Animal Defenders International v. the United Kingdom, [GC], no. 48876/08, §100, ECHR 2013.

[20] no 65831/01, 2003-IX Eur. Ct. H.R. 369.

[21] Perincek, §45 (discussing Garaudy).

 

 

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