Mihran Dabag
In a Dec. 17, 2013 judgment on the case of Perincek vs. Switzerland,
the European Court of Human Rights (ECHR) denounced the conviction of
Turkish nationalist Dogu Perincek by the Swiss courts.
In 2005, during several events in Switzerland, Perincek had described
the genocide of the Armenians as an “international lie,” thereby
violating Swiss anti-racism legislation (Article 261 of the Swiss
Penal Code). However, the ECHR viewed the remarks as protected by the
fundamental right to freedom of expression, which it deemed was breached
by the judgment of the Swiss courts. It would appear that the goal
associated with this specific expression of opinion and the political
context in which it occurred played no role.
Immanuel Kant once pointed out that “opinion is a consciously
insufficient judgment.” And thus the following question begs to be
asked: What is the political agenda behind a consciously “insufficient
judgment” of false historical factual assertions in the case of human
rights and international law violations?
In this context, namely the sanctioning of genocide denial on the one
hand and the protection of the fundamental right to freedom of
expression on the other, it is helpful to remind ourselves of the legal
foundations of the punishability of “Auschwitz denial” (Penal Code §130,
section 3) in the Federal Republic of Germany. With regard to
“Auschwitz denial,” the Federal Constitutional Court examined the
question of breaching the fundamental right to freedom of expression. In
this respect, a fundamental distinction was made between opinions and
factual assertions, with the latter being protected only if
they serve as the foundation for forming opinion. But according to the
Federal Constitutional Court, a democracy has, in principle, no interest
in protecting untrue factual assertions, as these make no positive
contributions to forming societal opinions. For this reason, the Federal
Constitutional Court did not deem the protected space of freedom of
expression to be breached in the case of Holocaust denial. According to
this jurisdiction, which has existed for decades, such false remarks
therefore do not constitute an opinion in the sense of basic
constitutional law. The fundamental right to freedom of expression is
therefore not even pertinent (BVerfGE 90, 241 from April 13, 1994).
This view confirms the judgment of the ECHR insofar as it also does
not view the denial of the Holocaust as protected by the fundamental
right to freedom of expression, as the crimes of the National Socialists
against the European Jews have been historically established and
decreed by a court, the Nuremburg war crimes tribunal.
The denial of the genocide of the Armenians can be seen in a
comparable sense as a false factual assertion, which should likewise not
be protected by the fundamental right to freedom of expression.
Indeed, the crimes against the Armenians are not only historically
documented but were, as in the case of the Holocaust, established by the
1919 conviction of the initiators, the persons responsible,
and the main perpetrators. The trials were conducted by a special war
court, which was set up on the basis of a note from the Allied
governments in May 1915; the charge was “crimes against humanity and
against civilization.”
In both cases, the main perpetrators were not on trial for the
criminal offence of “genocide,” as this term did not yet exist as a
category of international law, but for the criminal offence of “crimes
against humanity,” from which the legal category of “genocide” was later
derived. These two genocides, the genocide of the Armenians and the
Holocaust, thus prompted the establishment of the category of “genocide”
in international law. The Armenian Genocide led the international law
expert Raphael Lemkin to call for the establishment and stimulation of
such a category in international law; the Holocaust led to this being
implemented in 1948 with the UN Genocide Convention.
Beyond this formal-legal and legal-historical context, it can be
established that the denial of the genocide of the Armenians is
fundamentally a political strategy of Turkey, and Dogu Perincek is one
of the most important and provocative exponents of this strategy. For
instance, he was a central protagonist of the Talat Pasha movement,
which was named after one of the main persons responsible for the
extermination of the Armenians. Among other things, in 2006, the
movement aimed to protest against the “genocide lie” with a “march in
Berlin.” In a judgment on March 17, 2006, the Higher Administrative
Court of Berlin permitted the event, but under the condition that the
Armenian Genocide not be described as a lie, either in speech or in
verbal or written contributions, as this would fulfill the objective
facts of denigrating the remembrance of the deceased, according to §189
StGB.
The lack of an international consensus in terms of acknowledging the
genocide, which is addressed in the justification of the judgment of the
ECHR, is not based on an insufficient historical documentation of
events or on an inadequately justified qualification of the event by
historical research. Rather, it is based precisely on this policy of
denial by Turkey, which has been flanked by massive threats of economic
and political sanctions for almost 100 years. The powerful effectiveness
of this vehement state policy of denial is shown, for instance, in the
fact that the president of the United States of America, Barack Obama,
avoids the term “genocide” with regard to the Armenian Genocide, and
instead uses the Armenian term for genocide, “yeghern,” a term that has been used by the Armenian community since the 1920’s, and which is equivalent to the Hebrew term “shoah.”
The fact that thus far, only 20 nation-states have withstood the
immense pressure exerted by Turkey on the community of states, and have
acknowledged the genocide of the Armenians as such, does not reflect a
lack of consensus. Rather, it is the result of a problematic prevention
of expressing historical facts due to economic and alliance-political
considerations between the states.
The agenda of Turkish denial, which in view of the upcoming 100th
anniversary of the genocide is taking on a new quality of
state-institutional organization, by no means consists solely in the
negation of dark remembrance. The denial is a political strategy and the
basis of a policy: It is an integral element in the process of forming a
national Turkish identity. In this context, the suppression of the
analysis of one’s own history by Turkish “state opinion” enables a
repressive policy on minorities, a disregard of human rights, and an
acceleration of racist prejudices in Turkey, where the word “Armenian”
is still used as a defamatory swear word.
If the ECHR now places Perincek’s claim that the genocide of the
Armenians is an “international lie” under the protection of the human
right to freedom of expression, this has far-reaching consequences. For,
on the one hand, the qualification of the opposite standpoint as a
“lie” means depriving it of its status as an expression of opinion and
defaming it as a deliberately false factual assertion. On the other
hand, the protection of this defamation by the fundamental right to
freedom of expression ultimately applies not only to individual
expression but also to the system of political denial in which this
expression is made. It is not without reason that following the
announcement of the verdict, Turkish newspapers reported that although
it was Perinçek, the now heralded kahraman (hero), who had
enforced his rights before the ECHR, the verdict also meant a victory
for Turkey—and its politics of history and identity, as well as its
national politics.
Therefore, when comparing the protection against the denial
of genocide crimes with the right to freedom of expression, we must ask
how we can defend ourselves against ways of using this freedom in order,
through consciously insufficient judgment, to endanger or deny basic
European values—and the political-strategic denial of the most severe
crimes and the denigration of their victims is an undeniable part of
this. Therefore, in its considerations regarding the Holocaust, as
mentioned, the German Federal Constitutional Court did not deem the
protected space of the freedom of expression as being breached.
But even if one had seen such expressions as opinions, thus deeming
the protected space of freedom of expression to be breached, the
question of the justification of such an encroachment still arises. In
this respect, a balancing of interests should be taken. In terms of the
punishability of genocide denial, the weight of the apparently affected
fundamental right should be weighed against the fundamentally violated,
perhaps even dissolved personal right of the victims. Here, too, a look
at the German legislation on the punishability of Auschwitz denial can
be illuminating: The core of the legislations is the protection of
victims against derision, protection against the disparagement of the
memory of the deceased, and protection of descendants against defamation
(§189 StGB).
The decision to criminalize the denial of a genocide is not a
guideline to determine history; rather, it opens up a legal space to
enable the protection of historical knowledge about the facts of the
genocide and the remembrance of the victims. Against the backdrop of the
strategic policy of denial by Turkish “state opinion” and its agents,
it would be desirable to specifically protect the remembrance of the
victims of the Armenian Genocide by the Young Turks against false
factual assertions.
Switzerland, which is exemplary in this respect regarding its
legislation and its legal practice, is called upon not to follow the
judgment of the Small Chamber of the Strasbourg Court, but to take it to
the Grand Chamber of the ECHR.(*)
As there is a danger here of undermining a fundamental principle
established following the experience of the Holocaust, an urgent task of
international politics and, particularly, its legal bodies is to
fulfill this responsibility for protection.
"The Armenian Weekly," June 9, 2014
(*) Switzerland appealed the ruling on March 11, 2014 ("Armeniaca").
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