Variable geometry for freedom of expression and genocides?



Serge Klarsfeld: "If the Armenian genocide had been judged, the Shoah would have probably not happened".

The French constitutional council, in a recent decision of January 2017, decided, on its own, to censor certain provisions of the Equality and Citizenship Law, exposing a group of French citizens, particularly those of Cambodian, Armenian or Rwandan origin, to have no recourse in case of denialist provocation.

It is not a question of repeating here all the analyzes related to the relations between history, memory, law and freedom of expression, but to emphasize that since the 1990s the debates surrounding these notions and what's at stakes are essentially of political nature. Thus the legal approach seemed to be the most relevant, also posing a fundamental question: why does one make laws?

As a reminder, negationism appeared shortly after the Second World War and was not personified only in Robert Faurisson, but first of all in the most contradictory figure of Paul Rassinier. A Socialist then a pacifist, a resistant deported to the camp of Dora, which was not an extermination camp. He was the socialist deputy of Belfort (North Eastern France) and the author of the Lie of Ulysses in which he denied the existence of the gas chambers. Between the 1980s and 1990s, denialist statements flourished in France. The Gayssot law, which was not the first text dealing with defamation or sanctioning the apology of war crimes or racist provocation, was adopted in the heavy atmosphere of the desecration of the Carpentras Jewish cemetery (South Eastern France). This law was not sent for constitutional control to the constitutional council, which therefore has not had the opportunity to rule on its conformity with the principle of freedom of expression.

Law can be a tool of prevention without being an instrument of legislation of history. We will not repeat here all the argumentation developed over the last twenty years by historians or jurists. But in any case, the criminalization of negationism comes down to the essence of what is a liberal State. Passing a law or rejecting it is a way of acting on social functioning. This rejection of the constitutional council is therefore not insignificant, not harmless.

To overcome the specificity of the law on the criminalization of the denial of the Shoah and to adopt a general law in which the denial of genocides is punishable made sense, despite its many imperfections. This decision, bitterly received by the French of Armenian descent, echoes the 2015 Perinçek ruling of the ECHR endorsing the fact that negationism is not in itself a prohibited speech. This decision by the French Constitutional Court creates unequal treatment and calls into question the universality of human rights, leaving the door open to the most dangerous relativism, the refoulement of history which has become a state strategy in Turkey in particular. It also leads us to wonder whether the Anglo-Saxon approach which does not criminalize denialism at all wouldn't be a better model for Europe too?

Is there a freedom, whatever it may be, without responsibility?

The status of "victim" is once again the only protest posture which is allowed to French-Armenians. And we must accept without hesitation the minimization of the crimes of history against our peoples caught in the collective memory of the host country, its guilt or in the most current geopolitics. Shouldn't the only requirement be that the history of my people be written as it should be?

This very statute of "victim" deserves to go beyond the difference of arguments, first of all with a preventive aim; It is the human condition, the fractures of our societies and the use of history in the public space that are at stake in this legal drama.

As a grandson of survivors of the Armenian genocide, this decision appealed to me deeply. It succeeds long socio-political-legal-historian discussions on the genocide, its reality, on the necessity or not of a law, on the freedom of the historian, on the "flies" that we are (Armenians according to historian Pierre Nora), the continually renewed obligation of proof and, finally, the exclusion of the national historical field decided by expert historians.

Are we aware of the humiliation that this represents?

It is true that one may wonder what my grandfather did in 1940 in national history since he was called like the other Frenchmen to serve, but on his military booklet was inscribed in small red letters, very small read letters, that he was stateless.

The State thus plays an essential role in the issue of memories which should become a dialogue of memories. The memory of the other is also my memory.

For now, Cambodians, Rwandans, Assyro-Chaldeans, Armenians, we are caught between universalism and relativism, confronted with the justiciability of certain denialists and the injustice of those who would use freedom of expression to deny the millions of deaths of our peoples, caught up in the incessant reconfiguration of the politico-juridico-economic field.

It is necessary to note the randomness of the fabrication of the universal, since by this decision the constitutional council openly abandons the inherent and intangible principle of the universality of the principles of human rights.

It is time to develop an ethic of sharing the memories of peoples coming from genocides or crimes against humanity, which is also one of living together. The impetus of a society makes sense only by the direction it is given.


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