Global Policy Forum

Recently, the National Assembly, France's lower legislative chamber, voted to criminalise the denial of the Armenian genocide in 1915, imposing a potential prison sentence of up to one year as well as a maximum fine of 45,000 euros. The timing of this controversial initiative seemed to represent a rather blatant Sarkozy bid for the votes of the Le Pen rightists and the French minority of Armenian descent in the upcoming presidential election, the size of which is somewhere more than 300,000.

It follows similar pre-election initiatives in 2001, when the French parliament officially declared that the massacres of Armenians in 1915 were an instance of genocide, and in 2006 when the Assembly first voted to criminalise Armenian genocide denial, an initiative that never became law because the French Senate failed to give its assent. And this hopefully may happen again with respect to this recent Assembly grandstanding gesture.

It is hardly surprising that Turkey perceived this French action to be a hostile provocation. The Turkish government, which has so far refused to describe the 1915 events as "genocide", immediately reacted, warning France of adverse economic consequences if this initiative went forward, and has reacted by withdrawing its ambassador and freezing inter-governmental economic relations.

The Turkish prime minister, Recip Teyyip Erdogan, denounced the action of the French Assembly that had been initiated by a prominent member of Sarkozy's party. Erdogan, known for his forthrightness, advised the French government that instead of criminalising the Turkish unwillingness to acknowledge the 1915 events as genocide, France should busy itself with determining whether its harsh tactics used during the 1950s in Algeria - where it was supposedly responsible for up to a million Algerian deaths during the long French campaign to hold onto to its north African colony - constituted "genocide".

Freedom of speech

There are many issues raised by this turn for the worse in French-Turkish relations, and its embittering dialogue about historic events. Perhaps the most important is whether it is ever justifiable or useful to criminalise the expression of an opinion about a set of past occurrences that goes against a societal consensus.

It is true that any refusal to acknowledge a well-documented genocide - or "holocaust denial" will be hurtful to those who are survivors or descendants of survivors, and identify with the victims of such severe wrongdoing, and its attendant suffering. But this does not answer the question as to whether the sensitivities of these communities should ever be protected by the criminal law.

Any such protection conflicts with freedom of expression and censures controversial inquiries into historical events that may not be fully established beyond reasonable doubt. It has been occasionally illuminating enough to challenge conventional wisdom on such salient events in the past, and open the possibility of debate. Revisionist history is often a corrective to opportunistic efforts to foreshorten inquiry into the complexities of the past.

It would seem that informed agreement and social pressure should be normally sufficient to deter all but the most extremist instances of denial, if a genuine and sufficient consensus exists as to the locus of responsibility and the character of past events. In this instance, such criminalisation is especially unfortunate, as even if the facts of the 1915 events are reasonably well established, the relevance of genocide as a crime in international law is certainly somewhat problematic, especially from a legal perspective.

Against this background, where Turkey has not yet been willing to describe the events of 1915 as "genocide", the criminalisation of the denial is more likely to raise tensions than to encourage a long overdue accommodation. Of course, there are related irritants to the Turkish-Armenian relationship, especially the unresolved conflict over the future of the Nagorno-Karabakh Armenian disputed enclave in Azerbaijan.

Among thoughtful Turks, there continues to be some questioning of the character of the World War I events in question, not about their tragic character or even an increased readiness to admit and condemn Ottoman wrongdoing, but there remains a Turkish governmental and societal reluctance to pin the label of genocide on these occurrences. This reluctance is reinforced by an ultra-nationalist Turkish minority that views any acknowledgement as a political betrayal that would spark anti-government unrest.

Legalising historical truth?

It is common knowledge that the Armenian diaspora has long been seeking to induce key governments around the world to make formal declarations to the effect that what happened in 1915 was in fact "genocide", and some 25 governments have done so, as have many lesser political entities such as sub-divisions of the state or cities.

These efforts to legalise historical truth, as distinct from mourning historical events, is itself a political gimmick that does little to resolve the dispute, and makes diplomatic compromise more difficult and accommodation virtually impossible.

Going beyond such declarations by criminalising genocidal denial represents a still further escalation of Armenian efforts to resolve the controversy over this potent g-word through treating denial as a distinct crime. We would insist that rather than resolving the conflict, such steps make the quest for a good faith politics of reconciliation beyond the reach of both parties.

The discourse on genocide has always been confusing, multi-layered, and often toxic. The word "genocide" is weighted down by its resonant implications, explaining both why there exists such strong motivations to invoke it and equally intense efforts to deny its applicability.

We need to distinguish genocide as a crime in international law from the political assessment of historic events as genocide due to a clear pattern of deliberate killing of an ethnic or religious group. And such a political assessment needs to be further distinguished from a moral condemnation of a pattern designed to destroy systematically a beleaguered minority that might properly be described as "genocidal", or what has been more recently described as "ethnic cleansing" in the setting of Bosnia, which is distinct from the judicially certified "genocide" that shook the foundations of Rwanda in 1994.

Defining genocide

Such distinctions may seem legalistic, but more thoughtfully considered, this effort to distinguish the legal from the political and moral touches on fundamental matters of justice. From a legal perspective, it is not plausible to call these events in 1915 "genocide". After all, the word did not exist until coined by Rafael Lemkin in 1943, even though the Armenian ordeal was part of the background Lemkin relied upon to advocate criminalisation. In fact, the crime of genocide was not so delimited until the Genocide Convention came into force in 1951.

Beyond this matter of sequence, and more telling than this technical observation, is the fact that the indictments at Nuremberg did not charge the surviving Nazi leaders with genocide, but convicted these Germans of "crimes against humanity" for their connection with genocidal conduct, and even here only if the alleged criminal acts were associated with World War II, found by the tribunal to be an unlawful war, and held to be a "crime against peace". If the holocaust perpetrated against Jews and others did not seem to the Nuremberg tribunal to be a distinct crime, then it seems untenable to regard the Armenian tragedy as embodying the crime of genocide.

When the UN expert body, the International Law Commission, put into words what was done at Nuremberg, it explicitly affirmed the Roman dictum prohibiting retroactivity: no crime without law (nulla crimen sine lege). Such a dictum touches on an essential component of justice to the effect that behaviour, however detestable from moral and political points of view, is not to be treated as a "crime" until so designated in advance of the acts in question by a competent judicial body.

This principle has never been contested, and it pertains to the genocide debate whenever attached to pre-1951 events, whether the Armenian experience or to the destruction of a variety of indigenous peoples in various parts of the world or to the barbarous institution of slavery.

At the same time, if what took place in 1915 were to have occurred any time after the Genocide Convention became effective, it would seem beyond any reasonable doubt to qualify as genocide. The International Court of Justice, in the course of examining the Bosnian allegations of genocide, set the bar high, by requiring written or documentary evidence of a clear intent by Serbian governmental leaders to commit the crime of genocide that was not available. (The particular incident involving the horrific massacre of several thousand Bosnian males at Srebrenica in 1995 was, however, declared to be genocide.)

While such evidence was difficult to provide to the satisfaction of the World Court in relation to this notorious Bosnian experience of the 1990s partly as a result of a questionable arrangement with the ad hoc International Criminal Tribunal for former Yugoslavia not to release documentary evidence tying the Belgrade regime to the anti-Muslim cleansing operations in Bosnia, the situation with respect to Armenia is different. Unlike Bosnia, documentary evidence from the ruling Ottoman authorities does exist in sufficient quantity and quality to make persuasive the argument that "genocide" took place in 1915, but, because the events occurred 36 years before genocide formally became a crime, such a showing is legally irrelevant.

Agreeing to "genocide"

If this reasoning is accepted, it has important implications, including establishing some political space for bringing closure to the issue: Turkey could formally declare that if what happened to the Armenians in 1915 took place any time after 1951 it would have been genocide, while those on the Armenian side could accept the idea that the 1915 massacres were not then an instance of the crime of genocide, but that the extent, character, and evidence of the events would constitute genocide if taking place any time after 1951.

The French move, if indeed it becomes law, is irresponsible in the extreme as it disallows the mutual explorations of constructive ways that the violence and suffering of the past might be mitigated. As post-apartheid South Africa has illustrated, it might sometimes be politically and morally preferable for a victimised people to opt for "truth and reconciliation" than to insist on the criminalisation of past wrongs - however heinous.

It seems to us that such an approach would have mutual benefits. It would bring a conflict that has endured for decades nearer to closure. It would allow Armenians to regard their victimisation as genocide from a political and moral perspective, while enabling Turkey to make such a concession without fearing such legal implications as Armenian demands for reparations and the recovery of lost property.

Turkish good faith and remorse could be further expressed by appropriating funds for the establishment of a major museum of Armenian History and Culture in Ankara, by recognising April 24 as a day of Armenian remembrance, and by encouraging unrestricted historical inquiry into these horrific occurrences, including access to all archival records.

Of course, such a politics of reconciliation and compromise can only have any hope of succeeding if there is a large display of goodwill, and a sincere search by Turkish and Armenian leaders for positive relations between the two peoples. It is to be expected that extremists on both sides would strenuously object to such an accommodation, however delimited.

Admittedly, there would never be complete satisfaction even among that largely silent majority of Armenians and Turks who might welcome a reconciling development. What would be created seems valuable and worthy of the risk of failure - a new opening that would allow a more benevolent future to unfold for both peoples that could include a joint eyes-wide-open and cathartic reexamination of the past.

Such a development might add to the solemnity and dignity of the expected worldwide observances in 2015 of the 100th anniversary of these events, and avoid these occasions from being little more than sad remembrances and shrill recriminations.