Perincek v Switzerland and the Armenian ‘genocide’: Euro Rights Blog by Noelle Quenivet
On 17 December 2014 the European Court of Human Rights (ECtHR) found Switzerland to have violated Article 10 of the European Convention on Human Rights (ECHR) for having prosecuted and convicted Dogu Perincek on the charge of denial of the Armenian genocide (Perincek v Switzerland, Application No 27510/08).
The Court’s reasoning could have been better articulated and would have warranted a more in-depth examination of the distinction between the legal and historical characterisation of the 1915 events.
The Court acknowledges that genocide is an established, narrowly defined, legal concept (para 116). For example the events in Cambodia in 1975 do not fulfil the strict requirements of the Convention on the Prevention and Punishment of the Crime of Genocide (which explains why the Extraordinary Chambers in the Courts of Cambodia are prosecuting individuals for crimes against humanity) but are widely recognised as genocide. Genocide in common parlance is different from genocide in legal terminology (see Concurring Opinion of Judges Raimondi and Sajó).
While the Court correctly understands the legal characterisation of genocide (by referring to the Convention on Genocide and the Statute of the International Criminal Court in para 116) it fails to recognise that strictly speaking neither the events in 1915 nor the Holocaust can be classified as genocides, for the prohibition of genocide as a violation of international law (from a State responsibility perspective) and the crime of genocide (from an individual liability perspective) only appeared in international law after the events. In their Concurring Opinion Judges Raimondi and Sajó point out that the 1915 events predate the creation of the term genocide and that, as a result, some States, such as Switzerland, have struggled to fit the 1915 events into the legal definition of genocide. Undoubtedly the 1948 Convention was the legal response to the Holocaust, though the concept appeared in 1944 in the writings of Lemkin who had in mind the 1915 events. Following the principle that ‘a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force at the time when a dispute in regard to it arises or falls to be settled’ (Island of Palmas Case (or Miangas), USA v The Netherlands, 2 RIAA 829, 845 (1928)), States that organised or condoned the massacres in 1915 and in the Holocaust have not breached the prohibition of genocide. With regard to individual liability, owing to the principle of non-retroactivity of penal laws, individuals cannot be prosecuted for the crime of genocide (see by analogy discussion on war crimes in Kononov v Latvia, Application No 36376/04, Grand Chamber, paras 205-227). None of the perpetrators of the Holocaust was prosecuted for genocide either by the Nuremberg tribunal (though the word ‘genocide’ was used once in the indictment (Trial of the Major War Criminals before the International Military Tribunal, Ofﬁcial Documents, Vol. 1)), the Allied courts set up in pursuance of Control Council Law No 10, or national courts. The acts were prosecuted as crimes against humanity. In other words the events in 1915 cannot be characterised in law as genocide.
If Perincek would have presented his legal views at an academic conference no doubt he would have been correct. After all Perincek is a trained lawyer with a PhD (paras 7 and 71). However it appears that Perincek’s utterances were not solely targeted at a legal audience but professed at various public conferences (para 7). It could thus be argued that his speech had a more political tone (see discussion in partly dissenting, partly concurring opinion of Judges Vučinić and Pinto de Albuquerque), all the more as he referred to the ‘genocide’ in Armenia as an ‘international lie’ rather than a flaw in legal terminology. By doing this Perincek removed himself from a purely legal distinction and placed his speech into the historical and political fields. The Court indeed acknowledged that ‘the discourse of the applicant was of a historical, legal and political nature’ (para 112, author’s translation).
It would have been helpful if the ECtHR had neatly distinguished between a legal and a historical characterisation of the acts. It was even more imperative as the Court recognised that Perincek did not deny the events but their legal characterisation (para 51) though in the same breath the Court referred to Perincek’s speech as historical, legal and political (para 112). This contradistinction in the usage of the term ‘genocide’ would have warranted a more thorough examination even if both approaches qualify as political speech under Article 10 ECHR.
That being said, the legal characterisation does not deny a historical characterisation of the events. Indeed, based on a historical recognition of certain facts, States have passed laws ensuring that history is not manipulated for political ends and used for stirring racial, ethnic or religious hatred. Some States have criminalised the denial of events such as the Holocaust (para 30). Fewer States have put into place legislation prohibiting the denial of genocide and crimes against humanity more generally (para 30). Some States (e.g. France, Switzerland) have specifically recognised the Armenian genocide (paras 31 and 115).
In Perincek the Court found that there was no imperative social need for the criminalisation of the denial of the Armenian genocide. Its first argument is that whereas historical facts regarding the Holocaust are proven (see also Garaudy v France, Application No 65831/01; Lehideux and Isorni v France, Application No 55/1997/839/1045, para 47; Chauvy and others v France, Application No 64915/01, para 69) the same cannot be said of the 1915 events. The lack of consensus amongst the academic community means that there is room for debate (para 117) and thus the criminalisation of the denial of the Armenian genocide blocks this important debate (see para 123). The Court reiterates that it is not its role to proceed to the legal characterisation of the events (para 99, see also Concurring Opinion of Judges Raimondi and Sajó and Dink v Turkey, para 135). Yet Judges Vučinić and Pinto de Albuquerque remind us that a number of perpetrators were prosecuted by Turkey, that at the time France, Great Britain and Russia issued a joint declaration denouncing these crimes, and that the Treaty of Sèvres referred to them too. Winston Churchill went so far as to describe the events as an ‘administrative Holocaust’. In fact Judges Vučinić and Pinto de Albuquerque enumerate a long list of organisations and States that have recognised the events as facts and genocide. In their opinion the genocide had been recognised and thus the interference with freedom of expression, i.e. the criminalisation of the denial of the Armenian genocide, was lawful.
The second argument relates to the inherent link between the denial of genocide and the prohibition of incitement to hatred. It is contended that the overall aim of the aforementioned laws is to deny individuals the opportunity to incite racial, ethnic or religious hatred against a group by negating the existence of crimes against the group. The denial of genocide is automatically viewed as an act of discriminatory nature (Concurring Opinion of Judges Raimondi and Sajó; see also Garaudy). For example, the ECtHR admits that ‘the negation of the Holocaust is today the principal motor of antisemitism’ (para 119, author’s translation). To some extent, the denial of the acts is equated with the denial of the right of existence of a specific group. In other words the denial discourse has a destructive aim and must thus be condemned. After all, the ‘origins of the Convention [on Genocide] show that it was the intention … to condemn and punish genocide as “a crime under international law” involving a denial of the right of existence of entire human groups, a denial which shocks the conscience of mankind and results in great losses to humanity’ (Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide,  ICJ Rep 15, 23, emphasis added).
Mr Perincek was convicted on the basis of a Swiss legal provision that prohibits the denial of genocide with a view to violate the human dignity of a person or a group on the basis of race, ethnicity or religion. Yet, the ECtHR found that his speech ‘was not of such a nature as to incite hatred towards the Armenian people’ (para 51, author’s translation, see also para 112), explaining that the ‘rejection of the legal qualification of “genocide” of the tragic events that occurred in 1915 and in the following years would not have the same repercussions’ as the denial of the qualification of the Holocaust as genocide (para 119, author’s translation). Following its jurisprudence (see Gündüz v Turkey, Application No 35071/97, ECHR 2003-XI, para 40 and Dink v Turkey, Applications Nos 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, para 135) the ECtHR found Switzerland in violation of the ECHR. Using the 2008 Council Framework Decision Judge Vučinić and Judge Pinto de Albuquerque disagreed with this approach, stating that the ‘criminalisation of the denial of genocide … is even required within the framework of a European system of human rights protection’.
The third argument stems from the case-law of the French Constitutional Council and General Comment No. 34 of the Human Rights Committee: laws that criminalise the expression of opinions about historical facts violate freedom of expression (paras 122-124). This does not mean that States are not allowed to recognise certain acts as genocide, only that they should not criminalise the denial of the existence of these acts. Judge Vučinić and Judge Pinto de Albuquerque clearly differ with the Court’s reasoning in this regard, namely because they believe that 1915 events to have been established as ‘genocidal’ acts. It seems that the overall conclusion of this case is that States can only criminalise the denial of historical facts when such facts are clearly established.
The question remains: who decides that certain facts are established? In pursuance of its case-law (Chauvy, para 69; Lehideux and Isorni, para 47) the ECtHR has stressed that it is not its role to provide a legal qualification of the events (para 99). Yet, to determine whether the State interference is proportionate to the legitimate aims pursued and whether the reasons adduced by the national authorities to justify it are relevant and sufficient the ECtHR is bound to arbitrate historical questions. By stating that there is no consensus amongst the academic community with regard to the 1915 events the ECtHR has in fact indirectly expressed an opinion, that is that whilst the Holocaust can be considered a genocide the 1915 events cannot (as of yet). This decision is difficult to understand. Whereas the Chauvy and Lehideux and Isorni cases raised issues that might have been open to debate (collaboration and resistance in France), the 1915 events are established as crimes against humanity (in legal terms) and genocide (in historical terms) as the extensive list provided by Judges Vučinić and Pinto de Albuquerque demonstrate. To avoid having to debate the existence of the crimes, the Court could have endorsed a strict legalistic approach to the subject; yet, that would have meant declaring that neither the Holocaust nor the 1915 events can be characterised as ‘genocide’, something that no-one but a lawyer would have understood!