Perjuring the Past: On Criminalization of Armenian Genocide Denial

BY VACHE THOMASSIAN

All that makes existence valuable to any one depends on the enforcement of restraints upon the actions of other people.
–John Stuart Mill (On Liberty)

Last week, the French Senate approved a bill that, in effect, makes it a criminal offense to deny the genocide committed by Ottoman Turks against Armenians. Predictable Turkish “outrage” has included threats to recall its Ambassador to France, restrict trade between the nations, and a move to deport Armenian laborers from Turkey.  The legislation has also aroused public debate about the freedom of speech and expression as it relates to genocide denial.  While the law should be applauded as a milestone in punishing an ongoing genocide, some are misrepresenting it as a violation of a universal right. 

The purpose of the law (as stated by the French Senate;  translated into English), “aims to punish those who have publicly made an apology for, trivialized, or denied crimes of genocide, crimes against humanity and war crimes…or [crimes] recognized by France.”

This bill is written in the same spirit as the Gayssot Act,  enacted in France in 1990.  The Gayssot Act responded to “revisionism” by individuals who justified their writings by their (perceived) status as historians, who challenged the existence of the Holocaust.  To the French government these revisionist arguments constituted a contemporary form of anti-Semitism that warranted a limitation of the freedom of speech in France.  The law has since been challenged and upheld, by the United Nations Human Rights Committee, as a necessary restriction of expression “intended to serve the struggle against racism and anti-Semitism.” ¹

The committee’s judgement  mentioned Article 19 of the International Covenant on Civil and Political Rights as justification for upholding the law.  Article 19 of the Covenant states that “Everyone shall have the right to hold opinions without interference, and everyone shall have the right to freedom of expression…[however,] the exercise of these rights carries with it special duties and responsibilities [and] may therefore be subject to certain restrictions [which are] provided by law and are necessary for respect of the rights and reputations of others; [and] for the protection of national security or of public order.” 

In recognizing the legality of the Gayssot Act, the Human Rights Committee acknowledged the duality of “the freedom of speech and expression” as both a right and a duty.  Free speech is only a right as far as it does not infringe on rights of others to be free from assaults on their dignity.  Moreover, free speech carries with it the duty to act responsibly and with respect to others and to society as a whole.

These laws highlight differences between European and American value systems and resulting legal responses.  While the United States prides itself on being a protector of individual liberties², European countries place a higher onus on the inviolability of human dignity.³ For this reason, denialist speech is not understood to be a right, rather it is seen as an indefensible form of racism.

Regardless of geographic location, it is absurd to think that societies exist today or should exist, which place no boundaries on speech and expression (consider laws that prohibit child pornography, advertising cigarettes to kids, or exposing state secrets).  So the question is not whether to place limits, rather the question is where to place the limits. 

Even in the United States, considered the bastion of liberty, the concept of free speech has never been absolute.  US courts have agreed that not all speech is protected speech.  Unlawful speech, under the United States Constitution, includes defamation, perjury, incitement and several other categories.

 
Unlawful Speech (under the US Constitution)
Defamation: False statements about another person, which causes harm to that person. 
Perjury: False statements made during a judicial proceeding while under oath to speak the truth.
Incitement: Speech that is intended to cause an immediate breach of the peace. 

To better understand where the limits to speech and expression should be, the question that must be asked is, “Does the speech in question further or hinder our society’s most fundamental values/goals?”  While it is said, “truth emerges from the clash of ideas,” governmental intervention is necessitated in many instances. 

In American society, we value dignity and aim to protect it from untruths; therefore we punish defamation because it spreads lies, which hurt people’s reputation and honor.  We value due process, a truthful historical record and honesty; therefore we punish perjury because false testimony becomes a part of court transcripts that can be used to unjustly convict (or acquit) others.  We value peace and lawfulness; therefore we punish incitement because instigating illegal activity is dangerous.

Genocide is understood to be a crime against all of humanity, and it remains society’s obligation to punish it and prevent its recurrence.  In order to do so, a strong message must be sent that recognizes historical facts and simultaneously condemns their distortion.  This is important, not to “prove” the history to the perpetrators, but to safeguard the education of future generations, and to isolate and discredit the revisionists. 

The International Association of Genocide Scholars has stated, “The single best predictor of future genocide is denial of a past genocide coupled with impunity for its perpetrators.”  Since denial is the last phase of genocide, Turkey represents a continual threat to Armenia’s national security (not to mention the safety of its minority populations) as an unrepentant human rights violator, and a threat to the international community through its audacious state-sponsored denial campaign and political bullying.  Steps, such as those taken by France, should be adopted without cowering to threats of reprisal, implicit⁴ or explicit⁵, from the Turkish government.

The notion that today’s Turkey is organically and voluntarily coming to terms with its past, and should therefore be left to its own devices is dangerously misguided.  If not for international condemnation, resulting from decades of global activism, the Armenian genocide would be a non-issue relegated to the annals of history.  Moreover, Armenian genocide-related human rights violations continue to this very day in Turkey, from the failure to investigate state culpability in Hrant Dink’s murder, to the arrest of Ragip Zarakolu, to the calls for new deportations.  Therefore, it is justifiable and reasonable for the international community to condemn Turkey through their legislative bodies. 

External pressure and international isolation have finally led to discussion about the genocide inside of Turkey.  However, as long as the government of Turkey continues its current policies, these measures will remain necessary to raise the issue, for the sake of the victims, their descendants, Turkish citizens, and the international community at large. 

Notes
1. In 1993 Holocaust-denying “academic” Robert Faurisson challenged the legality of the Gayssot Act.  He claimed the law curtailed his right to freedom of expression and academic freedom in general, guaranteed by the International Covenant on Civil and Political Rights (ratified by 67 nations, including France: 1980; Turkey: 2003; Armenia: 1993; United States: 1992).  The United Nations Human Rights Committee found that Faurisson was convicted for “violating the rights and reputations of others” and ruled that the Gayssot law was a necessary restriction of his expression “intended to serve the struggle against racism and anti-Semitism.”

2. Seen in the Bill of Rights, most notably in the First Amendment’s protection of free speech and press.

3. Seen in Article 1 of the Charter of Fundamental Rights of the European Union;  Article 4 of the Declaration of the Rights of Man;  Article 1 of The Constitution of Germany

4. Concerning the well-being and safety of the remaining Armenian communities within Turkey today

5. Concerning threats from the Turkish government to severe political ties, trade relations, and military cooperation with countries that condemn the Armenian genocide and its denial

Vaché Thomassian is the Chairperson of the ARF “Shant” Student Association, Editor of Haytoug magazine, and a member of the executive board of the Loyola Law School Armenian Law Students’ Association.