Alexandra Merguerian examines the attempts to criminalize the denial of the Armenian genocide in France and Belgium.
The purpose of this essay is to outline the political deadlocks surrounding the attempts to criminalize the denial of the Armenian genocide in France and in Belgium and, thus, to shed light on the politicization of a traumatic memory.
On the aftermath of the First World War and the forced mass exodus of the Armenians from Eastern Anatolia (known as their original homeland), a meaningful Armenian presence began to be recorded among European countries. By way of illustration, France hosts, to this day, the third largest Armenian diaspora in the world. In fact, it is well established that most Armenians live outside the modern Republic of Armenia, currently inhabited by roughly one-quarter of the entire Armenian population. The distinctiveness of the Armenian nation therefore lies, to a great extent, in its diaspora. In this respect, the Armenians constitute, along with the Jews, a rare example of a scattered community, the majority of whose representatives live outside the independent states referred today as their homeland. It therefore follows a natural inclination of these ethnic groups to find a balance between their citizenship and their historical and cultural roots. Accordingly, the two diasporas have in common that they equally strive to anchor the memory of a genocide that occurred in the twentieth century, which they see as part of their historical identity.
Today, the century-old Armenian genocide occupies – along with the Jewish Holocaust – a distinct place both in European collective memory and in the political agenda of EU Member States. Indeed, the European Parliament has, over the years, sought to preserve the memory of dreadful historical events having directly affected minority communities living on the EU continent. Such duty of remembrance has been achieved, inter alia, through the adoption of resolutions, notably the 1987 resolution on a political solution to the Armenian question, which states that “the tragic events of 1915-17 involving the Armenians living in the territory of the Ottoman Empire constitute genocide” and, more recently, the 2018 resolution on the rise of neo-fascist violence in Europe that “calls on the Member States to condemn and counteract all forms of Holocaust denial”. Undeniably, these resolutions serve as a political tool to cultivate and protect the memory of these two tragic events.
It seems, however, that rather than being properly remembered – and contrary to the Shoah – the history of the Medz Yeghern (“the Great Crime”) is mired in political controversy. To say the least, the Armenian genocide fuels the heated (French) debate on the raison d’être of anti-denial laws, the so-called lois mémorielles, and, more broadly, the link between history and law. In the following, we shall see how these laws, when concerned with the Armenian genocide, are held hostage to international politics.
Over the past decades, the Armenian diaspora of France and Belgium have repeatedly petitioned their governments to have the massacres carried out by the Young Turks in 1915 officially recognised as a genocide and to prescribe the negation of those events as criminally sanctioned. As outlined in what follows, the first request was achieved both in France and Belgium, while the latter has been subject to a more tumultuous path.
In 2001, the French Parliament passed a law publicly recognizing the Armenian genocide (Law no. 2001-70 of January 29, 2001). In the same vein, as recently as April 10, 2019, French President Emmanuel Macron instituted April 24 as the official day of commemoration for the Armenian genocide – a decision that was immediately criticised by Turkish President Recep Tayyip Erdogan. Similarly, both the Senate and the House of Representatives of Belgium have formally recognized the Armenian genocide, respectively in 1998 (Resolution 1-736/3 of March 26, 1998) and in 2015 (Resolution of 23 July 2015). Additionally, in response to the latter resolution, Belgium’s Prime Minister Charles Michel has officially recognized the massacres of 1915 as a genocide on behalf of his government. Despite those significant, yet purely symbolic, gestures, France and Belgium continue to allow the revision and the denial of the Armenian genocide, even as they recognise it as an atrocity.
From the outset, it should be noted that in terms of explicit criminalisation of genocide denial, there is no uniform state practice. Doing so involves balancing the right to freedom of speech against the potential injury caused by negationism – a unique form of hate speech. However, in recent years, there has been a common trend among European systems to extend the scope of anti-denial laws to the denial of genocides, crimes against humanity and war crimes in general. It is notably the case of Hungary, Slovenia, Greece, Cyprus, Switzerland and Lithuania, to name but a few examples. This tendency constitutes a direct response to the militant approach of the EU on this matter, which – over the last decades – has urged Member States to criminalize genocide denial insofar as it disseminates hatred or violence. Indeed, the 2001 Convention on Cybercrime of the Council of Europe alongside with the 2009 Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law of the Council of the European Union call for the prosecution of negationism as part of the combat against hate speech in the public sphere. Both legislations aim at harmonizing laws on hate crimes across the EU and translate, in part, an attempt to take a stand against the Turkish government, which denies the Armenian genocide as a matter of policy. In that context, Belgium and France constitute an interesting exception: although both countries have laws in place prohibiting Holocaust denial, their attempts to extend the scope of the ban to the denial of other genocides – such as the 1915-17 Armenian genocide – have been mostly in vain.
Recently, in France, the National Assembly has twice attempted to establish equality between the memories of different genocides and to make the public denial of the Armenian genocide punishable. On 23 January 2012, both houses of the French legislature passed a bill outlawing the denial of all genocides officially recognized by France, including the Armenian genocide. As expected, the so-called ‘Boyer Law’ soured relations between France and the government in Ankara, which immediately imposed economic and military sanctions on France. Moreover, it sparked controversy among French politicians from both the Senate and the Lower House, to the point where some politicians lodged an appeal against the bill with the country’s highest court to review its constitutionality. The Constitutional Court proceeded to annul the resolution on the grounds that it curbed freedom of speech. Nevertheless, the French Parliament attempted once again to honour and protect the memory of the victims of mass crimes a few years later. Accordingly, the 1990 French Holocaust Law (the ‘Gayssot Law’) was amended to include punishment for the ‘denial or trivialisation’ of all events defined as genocide, crimes against humanity, war crimes, or slavery. Although the bill on “Equality and citizenship” was approved by the French Parliament in December 2016 (and passed into law in January 2017), history repeated itself, as the bill was eventually defeated by the Constitutional Council. Indeed, the latter ruled that the prohibition of denial of the Armenian genocide caused an “unnecessary and disproportionate attack against freedom of speech”.
These rulings implicitly lead us to question the Constitutional Court’s recent decision (decision n°2015-512 QPC of January 8, 2016) on the ‘Gayssot Law’ – which served as a model for both laws – that was conversely judged compatible with freedom of expression. The French and Belgian legal literature have extensively commented upon this discrepancy, and have argued that it shows the Constitutional’s Council reluctance to criminalize the denial of a genocide that has not been judicially recognized (but merely legally). Indeed, the French legislator, being the instance which both recognized the Armenian genocide and criminalised its denial, the Council ruled that it breached freedom of expression. In that context, as Sévane Garibian asks, can the regretful climate of impunity surrounding a genocide justify a differential treatment between victims of genocidal violence?
As for Belgium, both the Government and the Parliament attempted to extend the Holocaust Denial Law of March 23, 1995 to other genocides, respectively in 2004 (through the bill of July 12, 2004) and in 2015 (through the law proposal of June 17, 2015). According to political analyst Geoffrey Grandjean, both bills sparked heated debates among the parliamentarians and very much focused on the case of the Armenian genocide. Eventually, their political disagreements led to a legislative deadlock, and the draft laws were left on hold. Recently, an unexpected turn of events occurred, as on the aftermath of the April 24 Armenian Genocide Remembrance Day the Belgian Federal Parliament approved a draft law to ban the denial of genocides, war crimes and crimes against humanity. The purpose of this law was to strengthen the prohibition of denialism of genocides by adding an article to the Belgian anti-racism law of 1981, the so-called Loi Moureaux. By doing so, it transposed into Belgian law the EU laws referred to above and exercised the legal option of subordinating the prohibition of denying a mass atrocity crime to the existence of “a final decision of a national court of this Member State and/or international court, or by a final decision of an international court only”.
The Belgian legislation undoubtedly represents an important step forward, as it protects the memory of the Rwandan and the Bosnian genocides from being openly tarnished and eliminates, to some extent, a contestable hierarchy of genocides. However, this law is also highly polemical in that it excludes from its scope mass crimes that have not been recognized as such by a final judicial decision as a consequence of international realpolitik. In doing so, it disregards the genocide of the Christian population in the Ottoman Empire, merely because the crimes committed by the Young Turks during World War I have never been properly adjudicated by a court of law. Given that the ‘Armenian question’ was wiped out from the Lausanne Treaty (1923) for the sake of securing “a new peace between the allies and Turkey”, thereby creating a climate of impunity, such an exclusion is deemed inadmissible. Further, and most importantly, the decision to exclude the Armenian genocide contradicts the Belgian Parliament’s view on the subject, as it has formally recognized the existence of said genocide in two resolutions. In fact, discussions on whether to include the Armenian genocide have led to fierce debates within the Belgian Chamber of Representatives, to the point where some deputies among the majority were tempted to postpone consideration of the text until the next legislature. It is believed that these inconsistencies are the result of diverging approaches within the parties in the governing coalition. That is to say, a great number of elected representatives and their parties are subject to the deleterious influence of communitarianism and simply refuse to take the risk of sparking retaliation from Ankara and Belgium’s Turkish electorate. This restriction likely translates a political commitment to satisfy Belgian Turks who are largely concentrated in certain electoral districts. Considering the timeframe in which this legislative measure was adopted – a month prior to Belgium’s general elections – expediency is the most likely explanation for excluding the Armenian genocide from the newly adopted law.
For my part, I concur with the other members of the Belgian Parliament in believing that “we can either allow the freedom to deny all genocides, or ban their denial, but we must put all these crimes on the same footing”.
Conclusion
To this day, the Armenian genocide remains immersed in an everlasting and poignant controversy. This is with good reason; this event confronts us with the problematic relationship between truth and politics. Notwithstanding the legal considerations dictating this debate, it is important to acknowledge the influence of the Turkish government in the shaping of anti-denial laws relating to the Armenian tragedy as well as on the formulation of the EU Framework Decision. Moreover, penalizing hateful and negating speeches about the Armenian genocide would mark a first step towards the guarding of historical truth and counter the official discourse of the Turkish state. Denialism presents a danger for democracy and civil peace. Disallowing public denialism of mass atrocity crimes will help insure the protection and preservation of democratic values. For this reason, Europe should stand clearly against the politics of historical rewriting that has taken place in Turkey since 1923. A first step would be to treat the Armenian genocide as a matter of ‘veracity and truth’ instead of a matter of ‘politics’.
Ultimately, one wonders: how can we free history from politics and have truth prevail over perceived national interests? In other words, how can we prevent the recurring intrusion of politics in the shaping of the past?
Alexandra Merguerian is pursuing an MA in Holocaust and Genocide Studies at Uppsala University. She holds a Masters in comparative and transnational law from the Université catholique de Louvain. In Spring/Summer 2019, she conducted an internship at the Asser Institute for International and European Law, The Hague.
SOURCES:
Avedian, V., “Recognition, Responsibility and Reconciliation: The Trinity of the Armenian Genocide”, Europa Ethnica, (2013), 77-86.
Behrens, P., Terry, N. and Jensen, O. (2017). Holocaust and Genocide denial. A Contextual Perspective, New York and London: Routledge, 2017.
De Waal, T., The G-Word: The Armenian Massacre and the Politics of Genocide, (2014), https://carnegieeurope.eu/2014/12/16/g-word-armenian-massacre-and-politics-of-genocide-pub-57528.
Garibian S., “Taking Denial Seriously: Genocide Denial and Freedom of Speech in the French Law”, Cardozo Journal of Conflict Resolution, (2008), 479-488.
http://agbueurope.org/controversy-over-belgiums-implementation-of-eu-ban-on-genocide-denial/
http://agbueurope.org/wp-content/uploads/sites/17/2013/11/Armenians_Inside_Europe_-__A_Practic.pdf