A case referred to French Constitutional Court was widely covered in Turkish media, after some Turks and Armenians became parties to the case. We talked to Philippe Kalfayan, international law scholar and former Secretary General of International Human Rights Federation.
A French citizen who denied Holocaust filed a lawsuit and claimed that the law inflicting punishment on the ones who deny the crimes against humanity committed during World War II contradicts with French constitution. This case unavoidably put the law concerning Armenian Genocide on agenda.
The court decided that the law doesn't violate the constitution. In Turkish media, it was discussed that this decision might lead the way for repealing the law, which passed in the parliament in 2001, that recognizes the Armenian Genocide. In order to avoid disinformation, we talked to Philippe Kalfayan, international law scholar and former Secretary General of International Human Rights Federation.
First of all, could you please explain what is this case about?
Let's start from the beginning indeed. The case is about a French citizen who has been tried and condemned two times by French courts for having denied the Jewish Holocaust. After his last condemnation in February 2015 (2-year of liberty privation for propagation of denialism through Internet), he constitutionally challenged the provisions of the unique law repressing the denial of crimes against humanity (Loi Gayssot - 1990). There is a mechanism for that kind of legal challenge, which is called the QPC (Question Prioritaire de Constitutionalité). His legal question was accepted by the Cassation Court and referred to the Constitutional Court for decision. The challenge is grounded on the basic legal principle of equality of rights: why is the denial of Jewish holocaust a criminal offense while the denial of other crimes against humanity (including the Armenian genocide) is not? The question is quite pertinent and was pending for a while.
Why did and to what extent Armenian side and Turkish side get involved? What was their demand from the Council?
First of all, the protagonists in this case were: the defender, the anti-racism and antisemitism NGOs (LICRA and MRAP) represented by the same attorney, two French lawyers of Armenian descent representing some people from their families, the Government, another NGO called “Association pour la Neutralité de l'Enseignement de l'Histoire Turque dans les Programmes Scolaires” (ANEHTPS – Organization demanding the neutrality in the Turkish History curriculum in the school books, in other words, asking the French government to remove any reference to the Armenian Genocide in the school books).
Surprisingly, the CCAF (representing the interests of the Armenian organizations in France) was not represented in the case, while it was a unique occasion to defend their rights. The “French-Armenian” lawyers present in the case did ask the annihilation of the Loi Gayssot based on the violation of equal rights principle and replacing it by a more inclusive law criminalizing the denial of all crimes against humanity and genocides. The problem is that their request is based on a totally wrong assessment: the normativity of the 2001 French law recognizing the Armenian genocide. The same mistake was made in 2011 with the Loi Boyer’s initial draft law (prepared by one of these two lawyers). It has to be said quite clearly: the 2001 law is a declarative law, of purely political nature, and has no legally binding effect.
The ANEHTPS is of course a submarine of Turkish government.
Do you think that French Constitutional Council's decision is parallel to the ECHR's ruling on Perincek case?
The decision is not related to the same legal issue, but the decision made about the uniqueness and specifics of Jewish Holocaust reach the same conclusion, although the French Constitutional court had never mentioned the Jewish Holocaust or Genocide. In fact, many commentators tend to forget that the challenged law Gayssot itself never quotes the Jewish Holocaust. The Gayssot law provisions condemn the denial of the crimes against humanity committed during the Second World War that were condemned by Nuremberg International Military Tribunal. These crimes did not affect only the Jewish people. But, in the minds of most people, it is assimilated as such.
The reasoning of the Constitutional Court is similar to that of the European Court in the Perinçek case in the sense that it is considered that the denial of the crimes against humanity condemned in Nuremberg shall be automatically considered as speeches inciting racial or anti-Semitic opinions, especially in countries where those crimes have been committed, which is the case of France.
It is being discussed that with this decision of the Council, there is a way to repeal the Armenian Genocide law passed in 2001. Do you think this argument is valid?
This is what ANEHTPS already demanded in the court, but their petition was rejected by the Constitutional court, because the judges were not referred about the question of assessing the constitutionality of the 2001 Armenian genocide recognition law.
For sure, the Turkish Government under the guise of some NGOs will try to repeal this law in the future. But there is no risk of success for them, as long as this law is considered as a political declaration, which is the case. If one day, a French tribunal condemns a citizen for denying the Armenian Genocide based on this law, or if there is a new law criminalizing the denial based on this declarative law, then yes, there would be some risks. It is quite easy to understand: genocide is a crime, and only a judge can form a decision on the nature and the qualification of a crime. I do remind the readers that the Swiss tribunals’ decision to condemn Perinçek asserted the crime of genocide in order to condemn the speech of that one. What European Court defeated is not that assertion but the fact that a criminal sanction is disproportionate in regard to Perinçek 's offense. In conclusion, the assertion of genocide by Swiss judges remained valid, but the denial speech, especially in the specific case of Perinçek, was considered as not deserving a criminal sanction.
If French Parliament considers passing a law about the denial of Armenian Genocide , what would be their options now? Would this decision of the Council have an effect on such an initiative?
Of course, this decision will have an effect. I personally consider that the options for drafting a criminal law provision about the denial of the Armenian Genocide are almost nulls for the time being. French Armenian organizations are still able to institute civil proceedings for denial cases. This is what the European court encouraged in its 15 October judgment basing its argument as such: the Armenian genocide is a component of the Armenian identity. To deny the reality of the genocide amounts to insulting Armenian dignity and its right to be respected is then violated. However, if there is a development of aggressive and offending denial speeches inciting hatred against Armenians in the future, like in Turkey, then the need to draft a criminal law will be opportune. For the time being, there is no such environment: the Armenian genocide reality is widely known and accepted in France and worldwide. French government has no real intention to pass a new law.
I must however say that both European Court and French Constitutional Court 's reasoning could and should be challenged. An international crime, wherever it has been committed and whoever committed it, is universal. The obligations of prevention and repression are peremptory for every state. The European Court and the French Court haven't considered the need to criminalize the hatred speech on the model of the direct and public incitement to commit a genocide, which is prohibited. The future battle is there: if states want to prevent crimes against humanity they should universally accept to indict hate speeches against vulnerable or minority groups and assimilate them to incitements to commit crimes.