In Turkey, it is illegal to recognise the Armenian Genocide; and, in France, it may soon be illegal to deny the Armenian Genocide. I believe it is possible, in law, to balance the right to freedom of expression and the right to freedom from persecution. I think the real difficulty, in politics, is successfully promoting both freedom from persecution in free countries and freedom of expression in unfree countries.
This blog post may be quite dull; but then the next one, on public reactions to denial, can be fun, laughing at idiots. [The follow-up post ended up as exasperatedly sighing at idiots discussing the politics and morality of the ban.]
Crimes of expression
Turkey
Under Article 216 of the Turkish Penal Code, it is illegal for anyone to ‘incite… hatred‘ based upon ‘social class, race, religion, sect or region’ if the incitement ’causes a clear and present danger to public security’. (However, as academic and journalist Professor Baskın Oran has observed, it is used to do the opposite; even to prosecute ‘the Minorities Report, which was written against discrimination and hate speech’.)
Under Article 301, it is illegal for anyone to ‘insult [aşağılama]’ the government, judiciary, military or security services; it is a worse crime for anyone to insult the ‘Turkish nation [Türk milleti]’ (previously, ‘Turkishness [Türklük]’), the state or parliament; and it is a still worse crime for Turkish citizens outside Turkey to insult any of those things. The Turkish state and nationalists consider recognition of the Armenian Genocide an insult to the Turkish nation and state.
France
Under the Fabius-Gayssot Act (Law 90-615 of the French Penal Code), racial, ethnic, national or religious ‘discrimination [discrimination]’ is illegal. Since France considers Holocaust denial to be an incitement to hatred, it is illegal to ‘dispute the existence [contest(er)… l’existence]’ of crimes against humanity committed by the Nazi regime; and to publish or publicly make an ‘apology [apologie]’ for crimes against humanity. (There are translations of the articles on Wikipedia.)
Under the “Armenian Genocide bill” (in the process of becoming law), it would be a crime to deny any officially-recognised genocide.
Freedom of expression
PEN campaigns against ‘laws that clearly breach international standards‘ for free expression by criminalising insults to the Turkish nation, or by criminalising Holocaust denial. It has said of Turkey (and the Network of Concerned Historians (NCH)has echoed) that:
it [is] extraordinary that a state that has ratified both the United Nations International Covenant on Civil and Political Rights, and the European Convention on Human Rights, both of which see freedom of expression as central, should have a Penal Code that includes a clause that is so clearly contrary to these very same principles.
That statement would seem to apply to France’s anti-denial law, too. Certainly, PEN supported historian Deborah Lipstadt, when she condemned Austria’s imprisonment of historian David Irving for Holocaust denial as ‘censorship‘.
Lipstadt argued that ‘[t]he way of fighting Holocaust deniers is with history and with truth‘. Historian Pierre Vidal-Naquet warned that ‘imposing historical truth as legal truth’ was ‘dangerous’. However, as I explain later, the Gayssot Law is not a general law against the expression of opinion; and it is certainly not a counter-factual law against the statement of the truth; rather, it is an effective measure against incitement to hatred.
The Faurisson Affair
Academic Robert Faurisson has repeatedly denied the Holocaust, and has repeatedly been prosecuted for it by France; and he has been physically attacked for it by the Sons of the Memory of the Jews. There has been a campaign to defend Faurisson’s freedom of speech, most notably including intellectual Noam Chomsky (though it might be better to say that Chomsky defended his own defence of freedom of speech).
The controversy around his activities developed into the 1978/1979 (onwards) Faurisson Affair, because the petition presented Faurisson as a ‘respected’ academic, with ‘findings’ from ‘extensive historical research into the “Holocaust” question’; but his critics dismissed him as a ‘forger’ exercising his ‘right to lies and falsehood‘.
Freedom from persecution
Intellectual Bernard-Henri Lévy denies that French anti-denial laws are ‘memorial laws’; he described them as laws against acts that, ‘in denying it, intensify and perpetuate the genocidal act‘. While Lipstadt agrees that Holocaust deniers are driven by ‘racism, extremism, and virulent anti-Semitism’, she does not believe that Holocaust denial is an incitement to hatred.
However, the Holocaust Educational Trust’s Chief Executive, Karen Pollock, argues that ‘Holocaust denial is anti-Semitism dressed up as intellectual debate. It should be regarded as such and treated as such’. And Lévy insists that ‘the only ones this [Gayssot] law has seriously hindered are the Faurissons, the Irvings, and the other Le Pens'(1); indeed, the Gayssot Law is also known as the Faurisson Law (Lex Faurissonia).
The United Nations’ Human Rights Committee decision on the Gayssot Law
When Faurisson denied the use of gas chambers for extermination, French resistance fighters and concentration camp prisoners prosecuted him for disputing the Holocaust; and, on the 18th of April 1991, he was found guilty.(2)
Then, depending on the source, either the University of Lyon dismissed Faurisson, or he retired. The United Nations’ Human Rights Committee (UNHRC) recorded that Faurisson was ‘removed from his chair’; so, perhaps Lyon suspended Faurisson, then he left. So Faurisson went to the French Court of Appeal (without success), then to the UNHRC.
Despite public and scholarly concern about accidental misapplication or deliberate abuse of France’s Gayssot Act, the UNHRC unanimously ruled that the law banning Holocaust denial was ‘in compliance with’, ‘permissible’ and ‘necessary’ under the UN’s 1966 International Covenant on Civil and Political Rights (ICCPR).
The UNHRC decided that Faurisson was not denied the right to ‘express an opinion in general’; he was punished for statements that would ‘raise or strengthen anti-semitic feelings’ – i.e., that would incite hatred. The UNHRC judged that the Gayssot Law protected people’s right to freedom from persecution and fear.
So, legally speaking, it is possible to balance freedom of expression and freedom from persecution. The real difficulty, politically speaking, is to successfully promote both freedom from persecution in free countries and freedom of expression in unfree countries.
Freedom from persecution in free countries versus freedom of expression in unfree countries
The last time the French parliament considered banning the denial of genocide as an incitement to hatred, on the 9th of October 2006, several famous targets of political prosecutions in Turkey appealed against the French bill; they included academic and novelist Elif Şafak and journalist Hrant Dink. Şafak believed that it was
highly problematical not only in terms of curbing freedom of expression but also in terms of undermining any potential bonds of empathy and amity between Armenians and Turks. This move will only create a nationalist backlash in Turkey. It will harm all attempts to build dialogue. Perhaps more significantly,… it is not up to states or the state elite to write or dictate history. It is not democratic to impose one version of history and silence all other conflicting interpretations.
Dink stated that
I have been tried in Turkey for saying the Armenian genocide exists, and I have talked about how wrong this is. But at the same time, I cannot accept that in France you could possibly now be tried for denying the Armenian genocide. If this bill becomes law, I will be among the first to head for France and break the law…. What the peoples of these two countries [Turkey and Armenia] need is dialogue.
On the 19th of January 2007, Dink was murdered by Turkish ultranationalists.
It is indicative of the difficulties of this balancing act that those who most need protection from persecution then fear that protection as a threat to their own freedom of expression. If even they perceive a law against incitement to hatred to be an undemocratic silencing of dialogue, how can sensitive, nationalist communities be convinced to accept a perceived violation of their freedoms?
Yet free countries cannot avoid making good laws in order not to give unfree countries an excuse to make bad laws. Free countries do not avoid criminalising violence against women in order not to give unfree countries an excuse to legalise violence against women. Equally, free countries cannot avoid criminalising incitement to hatred in order not to give unfree countries an excuse to legalise incitement to hatred.
If France implements the anti-denial law, it should show understanding to Turkish deniers, because they are brainwashed into believing a false history; and even free-thinking Turkish deniers find it difficult to access – let alone accept – the true history. Nonetheless, it should prosecute those who knowingly ignore, exclude or misrepresent evidence in order to incite hatred.
1: “the” le Pens are the father-and-daughter founder (Jean-Marie le Pen) and leader (Marine le Pen) of the far-right-wing French National Front (Front National).
2: Journalist Oliver Kamm said that ‘Faurisson was convicted in a civil not a criminal trial’, but he was not: it was a private, but still criminal, prosecution.
conflict antiquities 
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