JURIST Guest Columnist Vivian Curran of the University of Pittsburgh School of Law says that the Armenian genocide law must be viewed in the context of French lois mémorielles, the complex history of France and EU law, noting that the French Constitutional Court will have to carefully balance dedication both to human rights and to freedom of expression…

On January 23, 2012, the French Senate, or upper house of Parliament, passed a law criminalizing the negation of any genocide recognized as such under French law. The Senate adopted the criminalization law that the National Assembly, the lower chamber, had passed a few weeks earlier, on December 22. Some 10 years earlier still, in 2001, France had accorded legislative recognition to the effect that the 1915 Turkish massacre of Armenians had been in the nature of genocide.

After the Senate’s action last month, Turkey’s Prime Minister Recep Tayyip Erdogan angrily promised retaliation, with his Minister of Justice Sadullah Ergin characterized the law as a complete lack of respect for Turkey, and citizens throughout the country prepared to boycott French goods and businesses. Although the law unofficially is known in France as the law on the Armenian genocide, France replied that the law targets no country in particular and, indeed, its text does not refer expressly to the Armenian genocide. However, it criminalizes the denial of any genocide legally recognized by France, and as of now French law recognizes only two genocides: the Holocaust, the denial of which already carries criminal penalties, and the Armenian genocide.

Turkey has accused President Nicolas Sarkozy of election-year antics in supporting the law, which he has committed himself to signing. France has an Armenian population of 500,000, far outnumbering its citizens of Turkish origin. While it is true that during a recent visit to Armenia, Sarkozy urged Turkey to acknowledge its role in the genocide, he may have been taken by surprise when a member of Parliament from his own party, representing a district heavily Armenian in ethnicity, subsequently proposed the criminalization legislation, pursuant to which denial of the genocide is punishable by €45,000 and one year in prison. President Sarkozy, embattled in a struggle to maintain France’s prosperity, especially after the downgrading of France’s credit rating just 10 days before the law passed, may not have been happy to see more trouble erupt with Turkey, France’s second most important trading partner, which was already bristling from Sarkozy’s opposition to its joining the EU as a member state.

The legislation still remains of uncertain future, however. France’s Constitutional Council was successfully seised when members of Parliament from across the political spectrum and from both houses of Parliament requested a constitutional review. For the moment, Turkey appears to be placing great hope in the review process, and declared in the wake of the Constitutional Council’s seisin that its relations with France will thaw. If the Constitutional Council rejects the law, it is possible that its decision will also invalidate Holocaust denial legislation, which has been in force for more than 21 years.

The Armenian genocide law must be viewed within the context of a growing controversy concerning laws relating to history, known in France as the lois mémorielles. These laws started in 1990 with a law banning and criminalizing the denial of crimes against humanity, enacted in response to an educator who was teaching Holocaust denial. Eleven years later, the law recognizing the 1915 Turkish killings of Armenians as genocide was passed. Later the same year, a law was enacted, recognizing slavery and the transatlantic black slave trade as crimes against humanity.

All of these laws were met with a certain amount of criticism as legislating history and restricting freedom of expression, but it was a subsequent, 2005 law that elicited a firestorm of protests. In that year, legislation recognized the positive role of France overseas, and particularly in North Africa. Among the many groups protesting the law (which later was rescinded) were historians who initiated a national discussion against government legislation of history. Perhaps best known among these historians is Pierre Nora, himself the editor of a magisterial multi-volume work, Les lieux de mémoire and a member of the French Academy. In reaction against the 2005 law, he founded the group Freedom for History with fellow intellectuals to combat legislation dealing with historical events.

France’s Armenian genocide law also should be considered within two other frameworks: that of EU law and of France’s national history. The EU has taken an assertive stance with its Council Framework Decision of 2008, endorsing member states in “combating … forms and expressions of racism and xenophobia by means of criminal law.” In balancing freedom of speech against genocide denial laws, France’s Constitutional Council will deal both with this European framework and with the nation’s own complicated past.

The French Revolution of 1789 led to the downfall of the Bourbon monarchy, but also to a reign of terror, and subsequently to a long series of struggles between forces of democracy, anti-democracy, royalty and fascism, the latter from 1940-1944, under a Nazi collaborationist government. The promise of the Revolution was of equality and fraternity, and the pride of France to date is its Declaration of the Rights of Man and Citizen of 1789. The country’s first four republics were riddled with parliamentary instability, however, its governments collapsing frequently as political coalitions fractured. War with Germany was a recurrent threat and a reality, both in the two world wars and also in the Franco-Prussian War of 1870-1871. The latter war, fought for the most part under France’s Second Empire led by Napoleon III, included a brutal siege and occupation of France, as well as the subsequent loss of territory, Alsace and Lorraine.

French politics became virulent, as the Dreyfus Affair soon revealed. A ferocious anti-Semitism developed and exploded during the time of the Affair, when an innocent French Jewish captain was tried and convicted of spying for Germany, with the assistance of false testimony offered by a group of army officers who also oversaw the forgery of documents and committed other unlawful acts in order to ensure Dreyfus’s initial conviction and later fight his appeals. Dreyfus’s ultimate exoneration caused as much bitterness as triumph, and owed much to the courage of individual lawyers, politicians, and, most of all, an army colonel who exposed the truth at great personal cost. The case’s impact was such that it brought down a government, caused a succession of war ministers to lose their posts, one of France’s most famous writers, Emile Zola, to flee into exile, and communities and families to be pitted against each other. Among the many aspects of French society that it elucidated was France’s self-understanding as fragile and vulnerable. The lengths to which some in France were prepared to go to hide or to turn a blind eye to the truth spoke volumes about the extent to which they feared the nation might crumble.

When a half century later France capitulated to Germany in 1940, a freely elected legislature voted to turn over the reins of government to a leader dedicated to collaborating with Nazi Germany. France’s part in the Holocaust was highly complex. In part, it was fueled by the rhetoric and actions of those whose anti-Semitism harked to the Dreyfus days and made common cause with the Nazis during the Second World War.

Due to France’s history, the freedom of speech and press which has allowed a vast panoply of views and practices to flourish in France is not the same as its First Amendment counterpart in the US. Underlying the French value of freedom of expression is a greater sense of vulnerability that comes from knowing first-hand that democracy is not necessarily a self-perpetuating system. Thus, when France’s Constitutional Council analyzes the validity of the Armenian genocide criminalization law, its considerations will reach into French history, past and present, as it navigates between the country’s fundamental values of championing human rights and preserving freedom of expression.

Vivian Curran is a Professor of Law at the University of Pittsburgh School of Law. She is a member of the American Law Institute and of the International Academy of Comparative Law, and was awarded the Grand Decoration of Merit in Gold for Services Rendered to the Republic of Austria for her work as the US appointee to the Austrian General Settlement Fund Committee for Nazi-era property compensation.

Suggested citation: Vivian Curran, Balancing Freedom of Expression and Human Rights in France, JURIST – Forum, Feb. 14, 2012, http://jurist.org/forum/2012/02/vivian-curran-genocide-denial.php.