FRANCE’S CONSTITUTIONAL COUNCIL:
AN EVENT CANNOT BE CONSIDERED A GENOCIDE UNLESS
IT IS ESTABLISHED AS SUCH BY A COMPETENT COURT
On January 8, 2016, the French Constitutional Council, France’s highest Court (equivalent to the U.S. Supreme Court), pronounced a landmark decision in a trial wherein an NGO founded by the Turkish community in France called “Association Pour La Neutralité de L’Enseignement de l’histoire Turque Dans Les Programmes Scolaires” (ANEHTPS) –Association For The Impartial Teaching Of Turkish History– was involved as a third party claimant. In this decision, the Constitutional Council validated the Gayssot Act which criminalizes the denial of Holocaust.
The Constitutional Council’s verdict affirms that whether an act of genocide (or crime against humanity ) has been committed or not can only be determined as a fact by a competent court and, further, legislatures or governments cannot declare an event as genocide. The Council’s verdict demolishes the potential effects of the law adopted on January 29, 2001 by the French Parliament that recognizes the 1915 events as genocide and hinders the adoption of any laws criminalizing the denial of Armenian genocide.
The case is about a French citizen named Vincent Reynouard, who was characterized by the French press as a neo-Nazi and who, after being tried and condemned twice by the French courts for having denied the Jewish Holocaust, challenged, on February 2015, the provisions of the Gayssot Act. Article 24a of the Gayssot Act condemns the denial of crimes against humanity recognized as such by a court. The applicant argued that the restriction imposed by the words “recognized as such by a court” violates the principle of equality before the law and justice. However, removing these words would amount to a considerable extension of the scope of Article 24a. Devoid of this restriction, Article 24a would serve as the justification for criminalizing acts of any denial of crimes against humanity not only recognized by a court but also by legislatures or governments. If the Constitutional Council had followed the argument of the applicant, the definition of the crimes against humanity would have been broadened considerably and a legal equivalence between the Holocaust and the “Armenian genocide” would have been established, thus making any denial of the so-called “Armenian genocide” a criminal act.
This is why French Armenian groups, hoping that the Council may declare a decision that would strengthen their claims, participated in the case as third party claimants and were represented by two French-Armenian lawyers. But this put them in a very unfavorable position since they were obliged to support the claims of a neo-Nazi who wanted to make the Gayssot Act worthless by expanding it to all claims of genocide. Indeed, the Armenian side argued that as Holocaust and the alleged Armenian genocide are both historically proven facts, they should be treated on an equal footing and, therefore, the denial of both should be made punishable by law.
MRAP (Movement Against Racism And Friendship Between People) and LICRA (International League Against Racism And Antisemitism), both renowned NGOs in France and Europe fighting against racism and anti-Semitism, were also third-party claimants. They argued for the constitutionality of the article 24a, asserting that the denial of Holocaust is the same as expressing anti-Semitism. They argued that as Holocaust has been judged and determined as such by an international tribunal, it cannot be equated with the “Armenian genocide” claims.
The French-Turkish organization ANEHTPS, demanding impartiality in the teaching of Turkish history, had asked the French Government to remove any reference to the alleged “Armenian Genocide” from school books. The ANEHTPS also joined the case to uphold the Gayssot Act. They also wanted to prove that the 2001 law which accused Turkey of “Armenian genocide” is unconstitutional and therefore should be abrogated.
The Constitutional Council in its January 8, 2016 decision rejected the claim of the applicant and upheld the constitutionality of the Gayssot Act. It also dismissed the claims of French-Armenian groups by drawing a clear distinction between the Holocaust which is unambiguously established as a crime by the Nuremberg International Tribunal, and the Armenian claims that are devoid of any legal basis.
On this matter the Constitutional Council is very clear. It asserts that whether an act of genocide has been committed or not can only be determined as a fact by a competent court and that legislatures or governments cannot declare any event as genocide. This is perfectly in line with the United Nations Genocide Convention which prescribes that any accusation of genocide should be subject to legal due process by competent judicial authorities as provided in the Convention’s articles 6 and 9.
The Council also emphasizes that for the criminalization of the denial of a crime against humanity it is requisite that the crime against humanity in question must have been qualified as such by an authorized court, adopted one of the main requests of ANEHTPS, the French-Turkish organization. The result of this decision is that the French Parliament can no longer resort to the 2001 law that accuses Turkey of genocide and pass bills criminalizing the denial of the “Armenian genocide.” It should be noted that the Council by this decision opposed the exploitation of history and law for political motives.
Further, the Constitutional Council of France gave a clear message to the members of the European Union as well as to the international community that parliaments and other political institutions are not the appropriate organizations to pass judgments on disputed periods of history and that this should be left to the historians for their dispassionate study and evaluation.
ANEHTPS welcomed the decision of the Constitutional Council as an important development that will contribute significantly to the strengthening of bilateral relations between France and Turkey by stopping further enactment of laws criminalizing the denial of the so called “Armenian genocide” induced by the Armenian lobby.
The Constitutional Council did not approve the request of ANEHTPS to repeal the 2001 Act. The reason was ANEHTPS was a third party in the Gayssot affair and the repeal of the 2001 Act was not directly submitted to the Council. The Council, however, repudiated the decision of the Conseil d’Etat (the highest court of appeal) that had denied a previous appeal of ANEHTPS on the same matter, and implicitly made it possible for ANEHTPS to question again the unconstitutionality of the 2001 Act before the Constitutional Council.
The Constitutional Council’s decision bolsters and strengthens the recent judgment of the European Court of Human Rights (ECHR) on Perinçek v. Switzerland case. The ECHR ruled that the criminalization of the denial of a crime against humanity is justified if the denial reflects an incitement for racial hatred. It drew a clear distinction between the Holocaust and the 1915 events and established that although the denial of Holocaust leads to an automatic presumption of incitement for racial hatred, the statement of Mr. Perinçek that “Armenian genocide is an international lie” does not promote a racist and antidemocratic provocation. This is why the court found that disagreeing with the opinions of the Armenians on the 1915 events is an exercise of the freedom of speech which is not punishable by law.
The Constitutional Council’s decision prescribes that the criminalization of the denial of a crime against humanity must be based on an authorized court decision. The decision’s article 7 states: “Remarks disputing the existence of crimes committed during the Second Word War qualified as crimes against humanity and punished as such by French or international jurisdiction constitutes themselves incitement to racism and anti-Semitism.” The Council’s decision which parallels Turkey’s legal approach on this matter completes the jurisprudence of the ECHR. For the ECHR, the punishment of the denial of a crime against humanity is warranted if the denial reflects an incitement to racial hatred, whereas for the Constitutional Council the criminalization is justified because there is a court decision that this denial is necessarily an incitement to racial hatred. The Council therefore binds the mental element (incitement to racial hatred) to the procedural element (court decision).
As a final note, it should be stressed that the Constitutional Council’s decision is in reality the reiteration of the principle of the presumption of innocence that is the foundation of law and justice. According to this principle, which is also prescribed by the Universal Declaration of Human Rights as well as by the Constitution of the United States, no person can be charged with a criminal offence unless tried fairly and indicted by a court. Parliaments and governments cannot act as substitutes for judicial organs. We expect that the understanding of law and justice manifested by the decision of France’s Constitutional Council will be an example to the United States Congress.
 The expression “crimes against humanity” used by the Constitutional Council, covers the crime of genocide.