—Javid Gadirov, Assistant Professor, ADA University (Azerbaijan)
It may seem surprising to readers in the United States that there is a criminal prohibition of the denial of the Holocaust in Germany, and of genocides and crimes against humanity in other European countries. The First Amendment’s robust protection does not allow any specific exceptions for hate speech. Speech may be restricted if, for example, it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (Brandenburg v. Ohio, 395 U.S. 444, 1969); or if it constitutes a “fighting word”, which may by its “very utterance inflict injury or tend to incite an immediate breach of the peace” (Chaplinsky v. New Hampshire, 315 U.S. 568, 1942).
Moreover, as the US Supreme Court explained in R. A. V. v. City of St. Paul, Minnesota, (505 U.S. 377 1992) the reason why “fighting words” are not protected is “not that their content communicates any particular idea, but that their content embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey”. In other words, hate speech may be proscribed only for its form or if it is likely to produce an “imminent lawless action”.
This is not the case in several European countries that establish criminal penalties for denying that particular genocides took place. Yet the reasoning behind such prohibitions may be different from country to country as I will discuss in this post.
Recently, the Grand Chamber of the European Court of Human Rights (ECtHR) in Strasbourg issued the final judgment on merits with regard to the application of the Swiss law that criminalizes denials of genocides and crimes against humanity to the Armenian genocide perpetrated in the Ottoman Empire (hereinafter Perinçek GC Judgment). The decision is important as it defines the context in which the freedom of expression as protected by the European Convention of Human Rights may be limited by criminal prohibitions on denials of genocides and crimes against humanity. The decision confirms the earlier ruling by the second section of the Court in 2013 (section judgment) that such application was contrary to the freedom of expression protected by Article 10 of the European Convention on Human Rights.
This judgment was discussed in the news and blogosphere, and invariably compared to Holocaust denial cases. The judgment contributes to the accumulating jurisprudence of the Court with regard to denials of genocides and crimes against humanity and historical revisionism (such as in Chauvy and Others v. France, Monnat v. Switzerland, Giniewski v. France, etc.). The Court clarified the context in which it will tolerate criminal prohibitions of genocide denials. It doing so, it distinguished the context for criminal prohibition on, for example, denying the Holocaust in Germany from a criminal prohibition on denying the Armenian genocide in Switzerland.
The basis for the Perinçek case is a provision of the Swiss criminal code that establishes criminal liability for “any person who publicly … denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity” (GC Judgement, para 32, emphasis added). Perinçek, a Turkish politician, publicly denied the Armenian genocide while in Switzerland, and was prosecuted pursuant to this law. He appealed to the European Court of Human Rights (ECtHR) claiming that the criminal liability for denial of the Armenian genocide was contrary to the freedom of expression as protected by Article 10 of the Convention.
According to the ECtHR’s approach, interferences with the freedom of expressions must pursue a “legitimate aim” and be “necessary in a democratic society”. The latter requirement consists in establishing whether there was a “pressing social need” for the interference and whether the interference was “proportionate to the legitimate aim pursued” (GC, 196). The Court held that the interference pursued a “legitimate aim” of “the protection of the … rights of others” (GC Judgment, para 157). The Court then proceeded to examine whether the interference was “necessary in a democratic society”, and found that it was not (GC Judgment, para 280), considering:
that the context in which [ the applicant’s statements] were made was not marked by heightened tensions or special historical overtones in Switzerland, that the statements cannot be regarded as affecting the dignity of the members of the Armenian community to the point of requiring a criminal law response in Switzerland.
The argument concerning the “heightened tensions or special historical overtones” that could have justified the criminal prohibition of genocide denial in other circumstances was elaborated in the joint concurring opinion of Judges Raimondi and Sajó in the Second Section’s Judgment:
Although the applicant’s remark was disrespectful, even outrageously so, it does not necessarily diminish the humanity of the affected group. Of course, negationist statements may constitute a crime to the extent that they incite hatred and violence and represent an actual danger given the history and social conditions in the society in question. However, none of these elements were present in Switzerland.
In other words, the situation of the Armenians in Switzerland differs, for example, from that of the Jews in Germany. German authorities would be justified in criminalizing the denial of Holocaust, because such denial could (in the view of the German authorities) represent “an actual danger given the history and social conditions in the society in question” and by itself amount to the level of comments inciting hatred. In the absence of such conditions, a criminal prohibition of denial appears to be unjustified.
One can compare ECtHR’s approach with that of the German Federal Constitutional Court in the German Holocaust Denial decision of 1994. In that decision, the German FCC explained why a criminal prohibition of denial of Holocaust in Germany is justified, referring to the specific context such denial has for the German society:
The historical fact that human beings were separated in accordance with the descent criteria of the so-called Nuremberg laws and were robbed of their individuality with the objective of their extermination gives to the Jews living in the Federal Republic a special personal relationship to their fellow citizens; in this relationship the past is still present today. It is part of their personal self-image that they are seen as attached to a group of persons marked out by their fate, against which group there exists a special moral responsibility on the part of everyone else and which is a part of their dignity. Respect for this personal self-image is for each of them really one of the guarantees against a repetition of such discrimination and a basic condition for their life in the Federal Republic. Whoever seeks to deny those events denies to each of them individually this personal worth to which they have a claim. For those affected, this means the continuation of discrimination against the group of human beings to which he belongs, and with it against his own person.
The ECtHR, however, says that there is no urgency demonstrated that would justify criminal prohibition of utterances by the Swiss government. In fact, the criminal prohibition was not justified either because of its form (as in the US) or by reference to the importance of continued protection of the victim group (as in Germany), or by any other limitation that could be used to mitigate such a restriction on the freedom of expression. According to the ECtHR, no conditions are present in Switzerland with regard to the Armenian community that would have led to a ‘pressing social need’ to criminalize the denial of the Armenian Genocide.
It is hard not to see that consequences of a contrary approach could be drastic. Given that Switzerland is a polyethnic state, various immigrant groups living there have been victims of massacres and genocides. In the absence of contextual limitations, criminal prohibitions for denials of such genocides and crimes against humanity would significantly restrict the scope of the freedom of expression. Additionally, the ECtHR would have stepped on a slippery terrain of balancing the significance of genocides and other crimes against humanity around the world that affect the dignity of victim group members against freedom of expression.
Not everyone agrees with the Court’s approach here. For example, one commentator notes that:
The difference between the Holocaust and “the rest” of mass atrocities established by the ECtHR is not only normatively problematic, but in practice invites further speculation. Such speculation would foster nationalistic Turkic identity and anti-Armenianism amongst Turkish and – after a recent military conflict over Nagorno-Karabakh – Azeri communities throughout the world.
I am afraid this amounts to a “straw man” argument with regard to the Court’s approach. The Court in Perinçek spelled out why the criminal prohibition of the Armenian genocide denial is not justified in the context of Switzerland. The Court does not assert that free discussion concerning genocides and crimes against humanity has any value that should be recognized. The approach in Perinçek can actually be compared here with the Fatullayev v Azerbaijan case (cited by GC, at 214), where the Court held (with regard to a criminal sentence imposed on a journalist for denial of Khojaly massacre) that “it is essential in a democratic society that a debate on the causes of acts of particular gravity which may amount to war crimes or crimes against humanity should be able to take place freely.”
Accusing the Court of inviting speculation and fostering nationalistic rhetoric in Perinçek is therefore not warranted. Rather the Court is drawing a line between the necessity (from the perspective of the government whose actions are enjoying a “margin of appreciation”) of prohibiting the denial of genocide to protect victim groups whose situation requires continued protection in the state concerned, from all other situations.
Suggested Citation: Javid Gadirov, When is a Criminal Prohibition of Genocide Denial Justified? Lessons from Perinçek Case, Int’l J. Const. L. Blog, Dec. 11, 2015, at http://www.iconnectblog.com/2015/11/when-is-a-criminal-prohibition-of-genocide-denial-justified-lessons-from-perincek-case