DOCUMENT SENT TO MEMBERS OF THE FRENCH NATIONAL ASSEMBLY AND FRENCH CABINET MINISTERS

AZG Armenian Daily
25/05/2006

Laws against Genocide Denial: Potential Consequences for Human Rights

May 18, 2006: Today the French National Assembly was set to debate a
bill to criminalize the denial of the Armenian Genocide, but has now
postponed the debate to November. The Turkish ambassador to France was
temporarily recalled in protest of this bill. What are the implications
of the French law for Turkish-Armenian relations and freedom of speech?

The International Institute for Genocide and Human Rights Studies, of
which I am currently the chair, deals with genocide in a comparative
manner, including its causes, methods, aftermath and denial. Our
research, based on archival sources both in and outside Turkey,
confirms that over a million Armenians perished in an Ottoman
state-sponsored campaign between 1915 and 1923 as victims of genocide.

Kemal Ataturk, the founder the new Turkish Republic, also publicly
disapproved of the wrongs committed against the Armenians, calling
them "a shameful act," but the true story of other founding fathers
of modern Turkey, many of whom had been intimately involved in the
Armenian Genocide as perpetrators, was suppressed.

This was despite the fact that the Ottoman government itself found
the leaders of the Young Turk party guilty in absentia of crimes
against the Armenians.

Ever since then, successive Turkish governments have denied what they
euphemistically called "the events of 1915."

In this respect, I wrote to Turkish Prime Minister Erdogan on May
5, 2005, regarding his proposal for a joint group, consisting of
historians and other experts, to study "the events of 1915." I found
this proposal insincere, given the Turkish state's numerous attempts to
stifle open discussion of the Armenian Genocide, including prosecuting
over seventy scholars, writers, journalists and publishers on the
grounds that they were denigrating Turkey. In that letter, I made
the following points.

"...the two sides must listen to and hear each other. As part
of this process, a common body of knowledge needs to be created,
so that established facts can help alleviate the polarization of
opinions. This, in turn, will lead to the "peaceful and friendly
environment in which tolerance and mutual respect shall prevail."

[Note, quote taken from P.M. Erdogan's proposal.]

I then urged that his government take some simple steps to allow
for a free and open discussion within Turkish society, such as those
listed below.

1) Facilitate critical scholars educating society about the events of
1915 from different points of view and not only from the government's
perspective.

2) Allow the broadcast of a series of lectures on this issue by
renowned Armenian, Turkish and/or third party scholars, who do not
necessarily reflect the government's official position, through
Turkish television networks, without any censorship, and with the
accessibility to the public for questions.

3) Allow Turkish academics and intellectuals, whose point of view
challenges the official version of what happened in 1915, to express
their ideas through public lectures, publications, and translations of
Ottoman archival materials, without fear of persecution by the state.

I also asked the government to make it unequivocally and publicly
clear that Article 305 of the Penal Code should not criminalize ideas
which deviate from those of the state's defined position, such as
the Armenian Genocide issue, and that individuals who say that the
Armenians suffered a genocide will not be persecuted by the state.

The proposed new legislation is intended to give force to the law
passed in 2001 officially recognizing the Genocide by providing
penalties for those engaged in its denial. One should question how
this law, if adopted, would facilitate dialogue between the Armenians
and Turks, which is a stated objective of the 2001 law, or between
the French and the Turks?

Does not this law inadvertently provide new opportunities for the
reactionary elements of Turkish state and society to radicalize the
masses against the French and the Armenians? By using the French law,
which limits freedom of speech as an example, would the Turkish state
not justify laws that promote its policy of denial and therefore make
it even harder to deviate from the official government position on
history? If so, how does that help Turkish civil society in gaining
any awareness on this issue? Does this law advance the language of
reconciliation or the language of conflict? Can such laws bring
a solution to the problem, or do they become part of the problem
themselves? Does using the penal code in France for any limitation
on the discussion of historical events endanger the prime function
of scholars, writers and journalists-to analyze, question, and
debate issues?

Would it not create a slippery slope that would allow the state to
sanction and impose dogmas as to how society should think? Finally, is
this not the very method of limiting freedom of speech that countries
like Turkey use, as the state attempts to control history in order
to control society?

Of course, we do need laws to protect against such problems as racism
and neo-Nazism, and there are legal limits to freedom of speech, such
as libel, fraud, defamation. Therefore, those who argue that freedom
of speech is not absolute are absolutely right. Some observers have
argued that you can not have a law criminalizing Holocaust denial and
not allow a similar law for denying the Armenian Genocide, which is
officially recognized as genocide in France.

The Holocaust denial policy grew out of two things: many European
countries were complicit in the death of the Jews, and punishing
denial of the Holocaust is seen as a form of atonement; and there
was a fear that neo-Nazi and other fascist groups would try to
vindicate themselves by eliminating the Holocaust, while maintaining
racism. Thus, the idea was that suppression of fascism was in part
a matter of suppressing denial of the Holocaust.

On the level of principle, one could argue either for or against
treating all denial of genocide as equal.

But there is the historical context of the Holocaust denial laws that
is different from Armenia, Rwanda, etc. At the same time, if only
the Holocaust cannot be legally denied, then some will take this to
mean that only the Holocaust was a genocide; others will feel that
the suffering of their people is being slighted.

But if we open this up and list all genocides and criminalize denial
of all of them, then our minds would be enormously constrained by
the State. Freedom of inquiry, expression, thought would be limited
in ways that are totally unnecessary and unintended.

Accordingly, are laws such as this a mistake and contrary to freedom
of speech? Some might argue that governments should eliminate all
cases of prosecution of denial, rather than extend the net.

We know Turkey already requires its students to write essays denying
the Armenian Genocide and uses its penal code to stifle human
rights. As recently as three days ago, an opposition deputy in the
Turkish Grand National Assembly presented a bill stipulating prison
terms of up to three years for those who claim that Turkey committed
genocide against Armenians in 1915. (This bill is not very different
from the current Turkish Penal Code article (301) that criminalizes
"denigrating Turkishness," which is what claiming there was a genocide
of the Armenians apparently does.) If the bill passes, what would
happen to Turkish intellectuals like Taner Akcam, Murat Belge, Halil
Berktay, Hrant Dink, Fatma Muge Gocek, Orhan Pamuk, Ragip Zarakolu,
and others, who openly challenge the Turkish state's definition of
the Armenian Genocide? Who then would dare attempt to educate Turkish
civil society? How then would Turkey ever have a chance to become
democratic? How then are the Armenian and Turkish people going to
have any kind of dialogue on this issue? If one supports such a law
in France limiting freedom of speech, then should one not also support
such a law in Turkey?

We must do all we can to overcome denial of genocide, by raising
awareness, employing scholarship, applying reason, and means other
than state sanction, to defend truth, justice and human rights. We
must demand that Turkey reform its penal code. The French, German and
other governments of Europe who were bystanders or even participants
in the crime should provide resources in order to bring the parties
together, and give incentives to solve the problem, not widen the
divide. Denial should be against the law only if it is in the context
of a hate or racist argument.

One wonders if these developments can contribute to the peaceful
solution of the problem. Rather than employ the language of conflict,
which exacerbates the problem, the parties should be more dispassionate
and rational, in order to be open to developing other means and
tools that will help with establishing dialogue, and hopefully lead
to normalization of relations.

France, for its part, has an option, as well. Instead of criminalizing
Armenian Genocide denial, which serves to stifle freedom of speech,
it could use its positive influence to support efforts within Turkey
for democratization there.

Freedom of speech and debate on the issue of the Armenian Genocide
in Turkey is the best hope for eliminating government control of this
history. By allowing such debate, Turkey can become open, democratic
and pluralistic. There is no guarantee that Turkey will follow suit,
but France, with its legacy of "freedom, equality and brotherhood,"
and as one of the world's leaders in democracy and human rights,
must show the way by not itself imposing laws that penalize freedom
of speech on the Armenian Genocide or any historical event.

By Roger W. Smith, Professor Emeritus of Government, College of William
and Mary and Chairman, International Institute for Genocide and Human
Rights Studies.