The French Position on the Denial of the Armenian Genocide:
A Question of Legal and Moral Legitimacy? 1. Introduction I would like to start with a quote which many of you will no doubt be familiar with, and which I feel serves as an apt point of departure for the discussion I want to present here. In August 1939, in a statement concerning his plans for Poland, Adolf Hitler is reported as having said: I have placed my death-head formations in readiness – for the present only in the East – with orders to them to send to death mercilessly and without compassion, men, women and children of Polish derivation and language. Only thus shall we gain the living space (Lebensraum) which we need. Who, after all, speaks today of the annihilation of the Armenians?1 The central relevance for the discussion here lies in the manner in which the final line invokes questions of memory and memorialisation, of recognition and denial – questions which continue to preoccupy historians, politicians and legal scholars interested in the massacres committed by the Ottoman Empire against the Armenian population in 1915. Unlike the Holocaust, to which it is often compared and contrasted (cf. Joseph Guttmann, Raphael Lemkin and Christian Gerlach), the Armenian genocide has never been incorporated or fixed into collective memory – in 1989, Vahakn N. Dadrian still referred to these events as the ‘forgotten genocide’.2 And although the Parliament of the European Union officially declared in 1987 that the massacres committed by the Young Turk regime during the First World War did constitute an act of genocide as defined by the Convention for the Prevention and Punishment of the Crime of Genocide, certain scholars continue to debate whether this was truly the case, focusing on questions of systematicity, premeditation and planning, or the perceived lack thereof. Much of this debate is conducted in polemical terms; and political agendas and ideological entrenchments continue to exert considerable influence, whether it be Armenian demands for recognition, official Turkish denial, or even the EU’s declaration that such denial represents an ‘insurmountable obstacle’ to Turkey’s entry into the European community.3 As such, the study of the Armenian genocide remains a minefield of controversial political, legal and ethical issues.
In my paper today, I want to explore some of these problematic issues by examining the French position on the legislative recognition of the Armenian genocide. On 18 January 2001, the French parliament proposed a law publicly and officially acknowledging the events of 1915 as genocide. Eleven days later, on 29 January 2001, this law was formally adopted. Comprising a single straightforward article stating that ‘France publicly recognises the 1915 Armenian genocide’4, this law forms part of the so-called “lois mémorielles” or memorial laws, which are currently composed of the following: - Firstly, the “Loi Gayssot” of 13 July 1990, recognising the Nazi Genocide and criminalising the denial of the Holocaust.
- Secondly, the Law of 29 January 2001 concerning the recognition of the Armenian genocide.
- Thirdly, the Law of 21 May 2001 recognising slavery as a crime against humanity.
- And fourthly, the Law of 23 February 2005 which is concerned with the recognition of the French Nation and the national contribution of the repatriated French.
The aim of these memorial laws is both to condemn the perpetrators of such odious crimes, and to acknowledge the suffering of the victims. Yet recognition of the occurrence of a genocidal act against the Armenians was only seen as a first step, and on 12 October 2006, the French deputies of the Assemblée Nationale decided to vote a proposition of legislation aimed at criminalising denial of the genocide. This proposition stated that: Punished in accordance with Article 24 bis of the law of 29 July 1881 will be those who have contested, by any of the means listed in Article 23 of the above-mentioned law, the existence of the 1915 Armenian genocide.5 A proposition of law can, however, only become effective legislation when the two chambers of the Parliament vote for its adoption. From October 2006 onwards, this proposition was awaiting transmission to the Sénat, but on 2 December 2008, the government eventually declared that it was not in favour of submitting it for vote. Efforts to criminalise the denial of the Armenian genocide in France have thus reached an impasse, yet the controversies raised by the proposal remain of the utmost relevance. Had it been adopted, how would it have worked? Which agencies would have been subjected to prosecution? And what of the broader legal and ethical implications? Might the adoption of such a proposal infringe upon freedom of speech? Is it possible to legislate history? And if so, can we be selective in determining which historical events are to be officially memorialised? These are some of the questions that I want to look at here. 2. Legal and Historical Overview Before doing so, I would, however, like to give a brief legal and historical overview of the events of 1915 to help contextualise the discussion. On 22 March 2006, the Los Angeles Times ran an article entitled ‘It was Genocide’ in which it was stated: What happened in Armenia in 1915 is well-known. The Ottoman Empire attempted to exterminate the Armenian population through slaughter and mass deportation. It finished half the job, killing about 1.2 million people.6 It is, however, important to trace the origins of the violence perpetrated against the Armenians back further through history. This was not an impulsive, sudden action – the Armenians were subjected to violent attacks throughout the 1800s, and in the period between 1894 and 1897, the number of victims is thought to have been anywhere between 100, 000 and 200, 000. In 1936, the Harvard historian Langer declared that it was ‘perfectly obvious’ that during this three year period, ‘the Sultan was determined to end the Armenian question by exterminating the Armenians’.7 The Sultan in question is Abdul Hamit, and his name and regime are thus already associated with what appears to have been a state-sponsored massacre of the Armenians. In 1908, Abdul Hamit was deposed in a violent revolutionary coup by the Ittihadists – also known as the Young Turks – who set about purging the Ottoman Empire of all non-Turks, whether Kurds, Arabs or Armenians. Within a year of coming to power, the new regime introduced a number of constitutional changes which in the Balkans, where there was a particularly large concentration of Armenians, notably in Macedonia and Albania, swiftly radicalised into oppression. On 3 August 1914 a large-scale deportation programme affecting all male Armenians was launched, the majority of whom were used as pack animals for the transportation of military equipment. On 6 September 1914 the Interior Minister issued an instruction to provincial leaders to keep all Armenian leaders under close surveillance. Then began confiscation of property and harassment, followed by arrests and executions. The last official sanction – i.e. in accordance with Turkish historiography – was the full-scale deportation order issued in 1915, demanding the transferral, or rather the removal, of the entire Armenian population. Evidence suggests, however, that ‘deportation’ here serves as a substitute for genocide, for none of the deportees were to ever return. According to the American Ambassador Henry Morgenthau: The real purpose of the deportation was robbery and destruction; it really represented a new method of massacre. When the Turkish authorities gave the orders for these deportations, they were merely giving the death warrant to a whole race; they understood this well, and, in their conversations with me, they made no particular attempt to conceal the fact.8 As the First World War ended, the Allies turned their attentions to the massacre of the Armenians, and in 1915 the French, British and Russian Governments issued a joint declaration providing that:
In view of these new crimes of Turkey against humanity and civilisation, the Allied governments announce publicly to the Sublime Porte that they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.9 This declaration was, however, merely a political proclamation of defence of Armenian minorities, and lacked all binding force. Despite the general rigour of its terms, the Treaty of Sèvres, signed on 10 August 1920, also refrained from officially criminalising commission of the massacres. Debates concerning recognition, denial and memorialisation thus continued throughout the twentieth-century, and look set to continue into the twenty-first, with the French proposals concerning legal recognition and denial marking a new and important juncture in this discursive context. 3. The French Position on the Armenian Genocide To begin my analysis of the French position, I would like to first consider certain practicalities concerning the application of the proposed law on denial, had it been adopted. The model for the law is provided by the ‘Loi Gayssot’ on Holocaust denial, which carries a charge similar to that enounced in Article 24 alinea 6 of the law on freedom of the press [“loi sur la liberté de la presse”] – namely a one year prison sentence and a fine of 45, 000 euros. The legislation does, however, recognise that the penalty might be limited to either the prison sentence or the fine – it need not necessarily include both. With regards the proposed law on the Armenian genocide, the penalties were to be exactly the same. Yet how would the law have been applied? What would have been its sphere of applicability, and would there have been any restrictions or limitations? In the first instance, it is important we try to understand the thinking and motivation behind the proposals. French deputies justified the adoption of this legislation first and foremost as a political measure designed to help facilitate a reconciliation between the Armenians and the Turks. What makes this a particularly relevant issue for the French government is the fact that there are an estimated 500, 000 French nationals with Armenian origins; and so criminally punishing the denial of the Armenian genocide would have been a symbolic gesture of solidarity with a sizeable proportion of its population whose forefathers suffered such atrocities at the hands of the Young Turk regime. This has, however, been seen in certain quarters as nothing more than political opportunism, with parliamentarians accused of pandering to a powerful political lobby in the run-up to presidential elections; whilst others have accused political leaders of exploiting the Armenian issue to whip up opposition to Turkey’s entry into the EU.
The greatest controversy, however, revolves around the possible tension between a law criminalising denial and the right to freedom of speech – a constitutional principle guaranteed by the French Declaration of Human Rights and re-affirmed by the European Convention of Human Rights. Turkish representatives have been particularly keen to denounce the proposed law as a violation of this fundamental right and to accuse the French of double standards. Is this, then, a justifiable reproach? In terms of applicability, the ‘Loi Gayssot’ is limited to views expressed openly in the press – it cannot be employed to censor private opinions. The proposed law on the denial of the Armenian genocide would, it is safe to assume, take the same form with the same restrictions, and so would not impact on an individual’s right to express his or her own opinions. In the context of the Holocaust, there are few serious objections to a law criminalising public denial, and so this sense of direct linkage and parallel may be seen to lend legitimacy to the proposed law on the Armenian case. For if legal sanctions can be imposed for denial of the Holocaust, then surely this ought to be the case for Armenia too – otherwise do we not run the risk of creating a hierarchy of genocidal acts according to which one is granted greater significance than others? Yet given the current state of debate, one might question whether it is really legitimate to equate the Holocaust and the massacre of the Armenians. Whereas all but a few isolated voices recognise the Shoah, there is a far greater number of scholars, and even some states, who continue to deny that the atrocities committed in Armenia constituted genocide, and so there remains far greater open space for ongoing genuine debate. The counter-argument would be that, having officially recognised the Armenian genocide as such, France has already – from a legal perspective – assimilated the two instances, and thus respect for the sovereignty of the French State dictates that no individual within the state can legally deny the occurrence of the genocide. Viewed under this aspect, the equation between the two can be seen to be legitimate, and the proposed resolution does not necessarily contravene the right to freedom of expression, although we can clearly see that there a number of acute legal and moral dilemmas involved in the issue.
4. The Consequences of Rejection I would now like to turn attention to the legal and moral implications of the government’s decision not to submit the proposed law for vote by the Sénat. As mentioned moments ago, the decision may be seen as a victory for freedom of speech, and provided commentators remain neutral and only want to enhance the debate concerning the qualification of the massacres objectively and without political bias, then it seems only proper that they should be granted the right to express opinions which deny that the atrocities were in fact genocide. But what if the press does not remain neutral? Are there other sanctions in place allowing the government to take action against politically-motivated attempts to discredit or disparage the suffering of the Armenians? The answer would seem to be yes – to some degree. The law of 29 July 1881 on the freedom of the press, for instance, includes Article 24 alinea 6 which concerns the criminal liability of the editor of a publication in case of racist or discriminatory views. If seen as racist or discriminatory, a comment denying the Armenian genocide may thus be punished under traditional criminal prosecution, without the need for a new specific resolution. In alinea 3 of the same Article, it is also stated that individuals can be held criminally liable should they have:
[…] apologised, by one of the means listed in Article 23, the commission of crimes mentioned in the first alinea, the commission of war crimes, the commission of crimes against humanity or the commission of crimes and offences of collaboration with the enemy.10 Article 24 alinea 3 can therefore be seen as providing a legal basis for the prosecution of denial of the crimes committed against the Armenians, which were characterised in 1915, during the Nuremberg Trial, and by the United Nations War Crimes Commission in 1948 as crimes against humanity. As William Schabas rightly notes:
How quickly people forget that the term “crimes against humanity” was itself coined to describe the massacres of the Armenians, in May 1915, and was subsequently codified as international law’s nomenclature for the perverse acts of the Nazi regime.11 Explicitly, the law refers only to the act of ‘apologising’ for the commission of crimes, which on the one hand may simply mean submitting that the crimes were justified. On the other hand, however, it may also involve questioning the historical reality of such crimes. To apologise for the commission of crimes and to deny their occurrence thus may not be synonymous, but the two acts may share common features and occupy similar ground. With this in mind, it might be argued that Article 24 paragraph 3 could be legally applied by analogy to the denial of the Armenian genocide.
A case study from recent history may help illustrate how denial of the Armenian genocide might be legally prosecuted despite the absence of a specific criminal law. On 7 May 2003, a number of associations filed a complaint against the Quid (an encyclopaedia on subjects of society), which, in its 2002, 2003 and 2004 editions, denied the qualification of the massacres in Armenia as genocide. It was also accused of minimalising the number of victims, and equating those victims with perpetrators in the context of a violent conflict. On 6 July 2005, the Tribunal de Grande Instance of Paris condemned the Quid editions for its representation of the atrocities in Armenia, basing its ruling on the 2001 law on recognition.12 In its judgement the tribunal declared that by presenting the Armenian genocide in such a light, the Quid had generated:
For close ones and heirs of this [Armenian] community, as well as for groups whose objective is to preserve the memory of these events, agitation and moral harm, enhanced by the fact that memory and historical interest had just triumphed over decades of silence.13 And so it seems that even without the specific resolution criminalising denial of the Armenian genocide, existing instruments nonetheless permit criminal sanctions being implemented for such acts.
The final point I would briefly like to raise before concluding relates to the problems presented by the rise in internet forums and blogs. In this era of free media exchange, the internet has become increasingly popular as a site of debate, interaction and contestation. Currently, the law on the liberty of the press holds the editor of a publication responsible for all comments posted on the internet in response. That such a position is problematic is self-evident: for example, how can it be just that the editor of a publication running an article arguing for the recognition of the genocide is held responsible for later comments denying the crime? Similar problems abound in the case of internet blogs, where there seems to be another legal loophole. In both situations, the freedom of expression and opinion either ought to be respected entirely – meaning that any comments, even those denying the crime, are accepted and authorised – or else clear limitations have to be given by the legislator, meaning that the authors of individual comments are made fully responsible for their own personal views. The latter solution of personal responsibility perhaps seems more appropriate and would be in concordance with the sanctions of the French Penal Code concerning discriminatory comments expressed in the private sphere – according to which (Article R 624-4), any individual insulting the race, ethnicity, gender or nation of another can be held criminally liable – albeit at a lower level than for opinions expressed more publicly. Yet ultimately it seems either solution would be preferable to the current legal situation, which is both unsatisfactory and unjust.
5. Conclusion I hope, then, that I have been able to provide an overview of some of the legal and moral dilemmas involved in the issue of genocide denial, and in particular with regards the recent controversy in France. For some, denial – or ‘negationism’ or ‘revisionism’ as it is sometimes termed – is the uttermost stage of genocide, eradicating memory, prolonging the suffering of the victims and their relatives, exonerating the perpetrators, and inciting further crimes. In the case of Armenia, denial seems to have been incorporated into the act itself – not as a retroactive strategy, but as a simultaneous removal of all trace of the crime; and it is for this reason that Hitler admired the Armenian massacres as the perfect crime and ideal model for Nazi Jewish policy. Criminalising denial thus seems desirable. And yet such measures raise, as we have seen, a number of problems. Firstly, there is the question of creating a hierarchy between recognised genocides: why should the memory of certain genocidal acts be legally protected, whilst others are not? Are the Holocaust and the Armenian genocide any more worthy of protection than the genocides committed in Rwanda, Cambodia, or – should it come to be recognised as such – Darfur? Secondly, there is the problem of the conflict with freedom of expression and opinion: is it not paradoxical for a state such as France which guarantees Human Rights to legally restrict such freedoms through a law on denial? And thirdly, the more general question of the role of legislation in the consecration of historical truth – should history fall under legal rule? And is it appropriate for governments to act as the arbiters of historical truth, particularly in relation to events that occurred in other states? The recent controversy in France has cast such questions into sharp relief, and has also re-opened debate on the ‘Loi Gayssot’ on Holocaust denial: if there is to be no law on denial of the Armenian genocide, should there continue to be a specific law on Holocaust denial? Ironically, the efforts of the French government to criminalise denial of the Armenian genocide have led to calls, particularly from historians, for the abolition of all memorial laws, the argument being that recognition of the Holocaust is now beyond doubt, and no longer dependent on legislative protection. What seems clear in all this is that the current subjective, ‘pick and choose’ situation is far from ideal, and runs counter to effective prevention and punishment of international crimes. France surely has to take a clear position, whereby either all legally recognised genocides are protected from denial, or else none are – only then would questions of recognition and denial be removed from the current grey zone of uncertainty. Freedom of speech is, of course, a fundamental right and must be protected from violation whenever possible. Yet denial of genocide may be seen as an act of genocide itself, and measures must be taken to prevent the active commission of such a crime – care must be taken to avoid human rights being invoked to grant immunity to politically-motivated denials. Laws criminalising all genocide denial – once recognised as such – would thus seem the most appropriate option, with the caveat that the utmost rigour be applied in discussions concerning the legal recognition of such acts as genocide. This is, it seems, the best way of ensuring – in response to Hitler’s question – that people do continue to speak of the annihilation of the Armenians, and that there is never again a ‘forgotten genocide’.
1 This English version of the official document first appeared in Louis P. Lochner, What about Germany? (New York, 1942), pp. 1-4. For the German original see Akten zur deutschen auswärtigen Politik 1918-45 (Baden-Baden, 1956), vol. XII, pp. 171-2.
2 Vahakn N. Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications’, Yale Journal of International Law, 14 (1989), 221-334, p. 229.
3 The refusal of Turkey to acknowledge the genocide was described by the European Parliament as ‘an insurmountable obstacle [...] to consideration of the possibility of Turkey’s ascension to the [European] community’. See Resolution on a Political Solution to the Armenian Question, Eur. Parl. Resolution Doc. A2-33/87, no. 10 (Armenian Question), p. 31 (1987).
4 Translation by the author. The original version reads as follows: ‘La France reconnaît publiquement le genocide arménien de 1915’.
5 Translation by Caroline Fournet. The original version reads as follows: ‘seront punis comme indiqué à l'article 24 bis de la loi du 29 juillet 1881 sur la liberté de la presse ceux qui auront contesté, par un des moyens énoncés à l'article 23 de ladite loi, l'existence du génocide arménien de 1915’.
6 ‘It was Genocide’, The Los Angeles Times Online, published 22 March 2006.
7 W. Langer, The Diplomacy of Imperialism, 1890-1902 (New York : Knopf, 1935), p. 203.
8 Henry Morgenthau, Ambassador Morgenthau’s Story (New York: Doubleday Page, 1919), p. 309.
9 Dispatch of the US Ambassador in France, Sharp, to the US Secretary of State, Bryan, of the 28th May 1915, in Papers Relating to the Foreign Relations of the United States, 1915, Supplement, (Washington: US Government Printing Office, 1928), para. 981.
10 Translation by the author. The original version reads as follows: ‘Ceux qui, par l’un des moyens énoncés en l’article 23, auront fait l’apologie des crimes visés au premier alinéa, des crimes de guerre, des crimes contre l’humanité ou des crimes et délits de collaboration avec l’ennemi’.
11 Schabas, William A., ‘Darfur and the “Odious Scourge”’: The Commission of Inquiry’s Finding on Genocide’, Leiden Journal of International Law, 27 (2005), 871-885, p. 883.
12 Cdca et autres v. Editions Robert Laffont, Encyclopédies Quid, Tribunal de Grande Instance de Paris, 17e chambre civile, Jugement, 6 juillet 2005.
13 Translation by the author. The original version reads as follows: ‘aux proches et aux héritiers de cette communauté, ainsi qu'aux groupements quo ont pour objet de maintenir la mémoire de ces événements, un trouble et une douleur morale d'autant que le souvenir et l'attention historique venaient à peine de triompher de décennies de silence’.