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One Century Later: Freedom of Speech and the Denial of the Armenian Genocide

0 Comments 🕔20.Feb 2015

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

European Court of Human Rights. Photo credit: CherryX

by Thomas Hochmann

The year 2015 will mark the 100th anniversary of the Armenian genocide. One century after the events, the denial of this crime – or its qualification as a genocide – still persists and, so far, no country has ever specifically criminalized the Denial of the Armenian Genocide (hereafter: DAG). When Greece adopted a new “hate crime” law in September 2014, many publications announced that Greece had criminalized DAG. Greece, those articles argued, followed Switzerland on this path. However, such depictions of the legal statutes governing genocide denials in those countries are misleading.[1]

Before examining the laws dealing with DAG in various countries, a distinction must be made. Hereafter, I will call “qualified DAG” the denial of the existence of the crime accompanied by an explicit attack against a specific population group. An example could be the claim that “the alleged genocide of 1915 is a lie disseminated by the Armenians.” “Bare DAG,” on the other hand, entails no explicit accusation against the Armenians. The denial of the crime, or of an essential component of it, stands alone. For example, the statement that “some Armenians died in 1915 as war casualties, but there was no plan to exterminate this population group” is bare DAG.

Armenians deported in Turkey. Photo credit: Narek

Armenians deported in Turkey. Photo credit: Narek

 

Bare Denial of the Armenian Genocide

A few people have been condemned for bare DAG on the basis of general laws. For instance, in 1995, a tribunal in Paris condemned Bernard Lewis to pay one franc in damages to several Armenian associations. The basis of this sentence was article 1382 of the Civil Code, which compels the one who harms another to repair the harm. It seems, however, that no country criminalizes bare DAG. France attempted to pass such a law in January 2012, but it was ruled unconstitutional by the Constitutional Council. Since the debate on this topic has been flawed, it seems worthwhile to underline the real questions that a specific prohibition of bare DAG raises. My main point is the following: that the focus should not be on the qualification of genocide, but on the speech denying its existence.

Opponents and supporters of a ban on DAG have wrongly focused their attention on the definition of the genocide itself.[2] Some supporters have argued that a country that forbids Holocaust denial should also forbid DAG, since no “ranking” should be undertaken among atrocities. Some opponents, however, insist that a major difference between the Holocaust and the Armenian genocide should justify a different legal treatment: the crimes perpetrated by the Nazis and their accomplices have been established by an international tribunal, while the Armenian genocide has not. The French Constitutional Council partly grounded its obscure and terse decision on this reasoning.

But both of those arguments focus on the wrong point. According to most constitutions and international treaties (e.g., the European Convention on Human Rights), freedom of speech can be restricted when its use would provoke some harm. The real question surrounding the criminalization of an expression is therefore whether it is likely to lead to harmful consequences, for instance by provoking violence or by inflicting moral harm on certain individuals. Therefore, what matters is whether DAG provokes such harmful effects. The discussions focused on the particularities of one genocide or another are beside the point.

First, it is not the gravity of the denied crime, but the danger posed by the expression of denial, that justifies the criminalization of denial. One can at the same time recognize the gravity of the massacre of the Helots of Sparta, and estimate that the denial of this crime poses absolutely no threat in contemporary society. One can consider that the Armenian genocide was a terrible tragedy, but that bare DAG, contrary to bare Holocaust denial, does not threaten to lead to violence or moral harm, and should therefore not be criminalized. Such an assessment is a political choice that should be made by the parliament.

Second, whether the genocide was or was not established by a tribunal is absolutely not related to the dangers raised by its denial. It is quite hard to dispel the impression that some Members of Parliament used the argument of judicial recognition as a pretext: it is easier to invoke a (deceptive) legal argument than to defend the opinion that bare DAG presents no sufficient danger to justify a criminalization. During the debate on the ban of DAG in France, many Members of Parliament preferred to “hide behind Nuremberg” – i.e., reasoned as follows: “I would very much like to criminalize this awful attack against our fellow citizens of Armenian descent, but alas, this genocide was not established by an international court: my hands are tied.”

Criminalizing bare DAG also needs parliamentary recognition that the expression threatens, in every case, to provoke sufficient harmful consequences. Once bare DAG is criminalized, tribunals need not verify that a danger exists in the present case. They only have to establish whether the defendant publicly denied the existence of the Armenian genocide. A less draconian step for a parliament is therefore to ban “qualified DAG”: it will be easier to regard such speech as harmful.

Qualified Denial of the Armenian Genocide

In 2008, the European Union passed the Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law. Among other things, it asks Member States to criminalize “publicly condoning, denying or grossly trivialising” the crimes defined in the Charter of the International Military Tribunal of Nuremberg, but also “the crimes of genocide, crimes against humanity and war crimes” as defined in the statue of the International Criminal Court. In other words, the Framework Decision does not only deal with Holocaust denial.

The Framework Decision, however, does not demand a general ban of bare denial of any crime of genocide, crime against humanity or war crime. It asks Member States to punish the type of speech defined above, but only when the expression satisfies further conditions. It must be “directed against a group of persons or a member of such a group defined by reference to race, colour, religion, descent or national or ethnic origin.” To put it more simply, the Framework Decision deals only with qualified denial. Furthermore, the expression must also be “likely to incite to violence or hatred against such a group or a member of such a group.” No preliminary assessment of harmful consequences needs to be done by the parliament: the judge will have to verify in every concrete case whether the speech provokes harmful effects or not.

In January 2014, a report from the European Commission showed that not every Member State had fully transposed the Framework Decision. The recent “hate crime” law adopted in Greece is precisely such an effort to implement the Framework Decision. Here is the relevant excerpt of the statute:[3]

“Anyone who intentionally, either orally, through the press, online, or by any other means or methods, condones, trivializes, or denies maliciously the existence or seriousness of the crimes of genocide, war crimes, crimes against humanity, the Holocaust, or Nazi crimes when those crimes have been established by international court decisions or the Greek Parliament, and if this conduct is directed against a group of persons or a member of such a group defined by race, color, religion, descent, national or ethnic origin, sexual orientation, gender identity or handicap, and when this conduct is likely to provoke hatred or violence or is of a threatening or insulting nature against such a group or one of its members, will be punished with imprisonment from three months to three years, and a fine of €5,000 to €20,000.”

This is far from the mere “ban on DAG” announced everywhere. Sure, since the Greek parliament recognized the Armenian genocide, this law forbids DAG, but this is not really its main and explicit object. More importantly, only qualified DAG is targeted: the speech must be directed against a group of persons, and it must insult them, or incite hatred or violence against them.

Switzerland’s case is not very different. Since 1995, Article 261 bis of the Criminal Code provides for a sentence for “any person who publicly denigrates or discriminates against another or a group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether verbally, in writing or pictorially, by using gestures, through acts of aggression or by other means, or any person who on any of these grounds denies, trivialises or seeks justification for genocide or other crimes against humanity.”

A precise analysis should recognize that this statute targets the bare denial of a genocide or a crime against humanity. No explicit attack of a group of population is needed. But an additional element is required: the denial must have a specific animus; it must be motivated by the “race, ethnic origin or religion” of a group of persons. This is really close to qualified denial, because in most of the cases, this specific intent will be deduced from the words used by the speaker. But Swiss tribunals also use other clues to ascertain the state of mind of a genocide denier. In particular, they deduce the hateful intent from the awareness of the speaker that the crime he denies actually took place. Poorly educated Turkish people were exonerated, but a political leader named Dogu Perinçek was sentenced: being a “cultured person” with “very good historical knowledge,” he could not “believe in the non-existence of the Armenian genocide” and appeared therefore to be animated by hateful motives.[4]

Since freedom of speech can be restricted to avoid harm, the ban of qualified DAG is a more convenient way to fight DAG. The hateful content of speech makes it more likely that harmful consequences will ensue. This will be even more likely if, as in the Greek example, the law requires that these harmful effects be proven at trial. On the other hand, a ban of bare DAG, which involves a general assessment by the parliament that mere denial of the genocide of the Armenians raises significant danger, is much more difficult to justify.

In December 2013, the European Court of Human Rights found that Switzerland violated the freedom of speech guaranteed by Article 10 of the Convention when it sentenced Dogu Perinçek. The Court failed to consider the “hateful content” elements of the Swiss law, and treated it like a statute simply permitting to punish bare DAG. Yet, according to the Court, it “cannot be maintained that the rejection of the legal characterisation of the tragic events of 1915 and subsequent years as “genocide” could have similar repercussions” as Holocaust Denial.[5] Bare DAG does not entail the harmful effects that would justify its prohibition. Switzerland appealed this judgment and in 2015, one century after the events, the Grand Chamber of the European Court will consider the issue.[6] Should it confirm this appraisal of the effects of DAG, it will be clear that supporters of the criminalization of this expression would be well advised to concentrate their efforts on the punishment of qualified DAG. The Framework Decision of the European Union demands no more, and it will be easier to justify the punishment of a kind of hate speech which denies the Armenian genocide to attack a group of individuals. The burden of justifying the ban of bare DAG is much heavier and, despite reports to the contrary, no country has taken this step yet.

 

Thomas Hochmann is Professor of Law at the University of Reims Champagne-Ardenne (France). He is the co-editor of Genocide Denials and the Law (OUP, 2011) and the author of Le négationnisme face aux limites de la liberté d’expression (Genocide Denials and Freedom of Speech in Comparative Law, Pedone, 2013), and of numerous articles on freedom of speech and on other fundamental rights.

 

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


[1] Slovakia or Slovenia are alternatively quoted as “the third country” specifically criminalizing DAG. I have no knowledge of the legal situation in those countries, but I am quite confident that what I will say about Switzerland and Greece is also relevant for Slovakia and/or Slovenia.

[2] References for these arguments can be found in Thomas Hochmann, “La question mémorielle de constitutionnalité,” in Annuaire de l’Institut Michel Villey 4, (2012): 137–138.

[3] The original version is here. I scarcely modified the English translation found here.

[4] See Thomas Hochmann, “The Denier’s Intent,” in Ludovic Hennebel and Thomas Hochmann, eds., Genocide Denials and the Law (New York: Oxford University Press, 2011): 316.

[5] Perinçek v. Switzerland, December 17, 2013, § 119.

[6] Disclosure: I took part in an amicus curiae addressed to the Court by a group of scholars.

 

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