JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, says that the experience of France – and some principled reflections – should make the US House of Representatives think twice before adopting any resolution labelling the early twentieth-century killings of Armenians in the Ottoman Empire (now Turkey) as "genocide"…

To quote Justice Stewart, the “camel’s nose is in the tent.” Indeed, the 110th US Congress appears willing to follow in the footsteps of the French Parliament by attempting to legislate on past historical events. The numerous advocates of House Resolution 106, the so-called “Affirmation of the United States Record on the Armenian Genocide Resolution”, want the US President to acknowledge that the mass killings of Armenians committed in Turkey between 1915 and 1923 constitute, this is the controversial aspect, a “genocide”, i.e. the intentional destruction, in whole or in part, of a national, ethnic, racial or religious group.

This attempt to use the force of the law to promote a particular historical interpretation is reminiscent of the 2001 French law which acknowledges the existence of the Armenian genocide in 1915. One may hope, however, that Resolution 106 will not have the votes to pass on the House floor and that history will be left to historians. Principled and pragmatic reasons may be offered to justify this view.

One should note, in passing, that I do not intend to debate here whether the term “genocide” — a crime under international law since 1948 — is the accurate term to a posteriori characterize the 1915-1923 massacres. My general position is that no Parliament should legislate to promote or worse, enforce particular historical truths.

In France, the statutory characterization of the mass slaughter of Ottoman Armenians as a genocide led to the introduction in 2006 of several bills (yet to be adopted) whose purpose was to punish with criminal sentences those who “dispute” this characterization. Such content-based prohibition on free speech is certainly and thankfully unthinkable in the US, since the First Amendment precludes the government from prohibiting “the expression of an idea simply because society finds the idea itself offensive or disagreeable” (Texas v. Johnson, 491 US 397, at 414). Yet, the “mere” statutory recognition of the Armenian genocide may encourage diverse groups to lobby the US Congress to have their historical narratives enshrined in the law.

Generally speaking, it is important to be wary about the slippery slope effect of such laws. And indeed, the French Parliament, since it first acknowledged the existence of the Armenian genocide, seems to have found a new raison d’être in legislating with the view of promoting and eventually compelling people to accept state-sponsored historical interpretations. For instance, another law passed in 2001 obliges people to describe the slave trade as “a crime against humanity” and a provision of a 2005 law — later struck down by the French constitutional court — also required school history teachers to stress the “positive aspects” of French colonialism.

The American congressional resolution may also be opposed on the grounds that no individual country has the moral authority to sanction particular historical truths regarding events in which it is not, directly or indirectly, involved. On the contrary, what I would call “historical imperialism”, the action of legislating to sanctify a particular interpretation of a past event which took place in another country, appears to be counterproductive. First of all, historical imperialism may lead to a vicious circle where each country tries to expose each other’s past crimes and hypocrisy. For instance, Turkey may be tempted to push for the adoption of bill aimed at punishing anyone who does not characterize as genocide the killings of Algerians under French colonial rule or the mass slaughter of American Indians by European settlers. Secondly, the passing of time and the promotion of free speech values is more likely to help the Turks to “arrive at the truth on their own” as a former chief of Armenia’s National Security Council put it. The French Republic, known for its persistent refusal until 1995 to recognize the responsibility of the French State in the deportations of French Jews to Nazi Germany under the Vichy regime (1940-44), would have been well-advised to show more self-restraint. The atrocities committed against the Armenians in Turkey took place before Ataturk proclaimed the Turkish Republic. If the French Republic could distance itself from the actions of the Vichy regime, the Turkish Republic should also be entitled to distance itself from the actions of the so-called Committee of Union and Progress at the time of the Ottoman Empire.

If the causes of historical truth and the prevention of future genocides are the genuine concerns of those in favor of adopting Resolution 106, strict adherence to human rights standards at home and the non-selective defense of those standards abroad would certainly constitute a wiser policy than legislating on other countries’ historical misdeeds.

Laurent Pech is Jean Monnet Lecturer in European Union Public Law at the National University of Ireland, Galway and the author of a comparative study (in French) on the right to free speech in the US and in Europe: La liberté d’expression et sa limitation (PU Clermont-Ferrand/LGDJ, Paris, 2003). He is currently preparing an article on the 2007 EU framework decision on racism and xenophobia.
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