France cancels ‘unconstitutional’ genocide denial ban; ignores identical existing law(s)

On 28th February 2012, the Constitutional Council of France cancelled the law against genocide denial; or, as Hürriyet Daily News (@HDNER) put it, the Constitutional Council cancelled the law against “‘genocide’ denial“. The Council ruled that the law was ‘contrary to the Constitution [contraire à la Constitution]’.

Turkish Foreign Minister Ahmet Davutoğlu hoped that the Constitutional Council’s ruling will set a ‘precedent‘; but, like the Constitutional Council itself, he ignored the precedent of existing (and structurally identical) blackletter law and case law.

I have already explained the crimes of expression in France and Turkey; explored the politics and morality of the law against the denial of crimes against humanity; and challenged basic misunderstandings of the anti-denial law. Here, I will just make five key points:

  1. Holocaust denial has been illegal since 1990 (under the Gayssot Law). If the law against Armenian Genocide denial is unconstitutional, so is the law against Holocaust denial.
  2. Both chambers recognise the Armenian Genocide; a cross-party consensus in the National Assembly wants the criminalisation of denial; both socialists and conservatives support the law.
  3. Under laws criminalising incitement to hatred (and understanding denial or justification as incitement), French courts already punish denial or justification of French or international war crimes, crimes against humanity and genocide. (Thus, denial of the Atlantic slave trade has been illegal since 2001 (under the Taubira Law).)  Again, if the law against denial of the Holocaust is unconstitutional, so are the rulings in case law.
  4. The European Court of Human Rights and the United Nations’ Human Rights Committee recognise the French anti-discrimination laws as ‘necessary’.
  5. Claims that the law is an election vote-winner are dependent upon falsehoods about, or misunderstandings or misrepresentations of parliamentary activity and election results, and the nature and value of minority community “bloc votes”.

7 Responses to “France cancels ‘unconstitutional’ genocide denial ban; ignores identical existing law(s)”

  1. The Constitutionnal Court did also adress the issue of the Gayssot Law, and deemed it different from the Armenian Genocide law due to a different formulation and legal basis, in this case the Nuremberg trials. Indeed the law does not condemn negation of the holocaust but negation of those facts found true by the Nuremberg trials : thus it is not an “historical” law but a “judiciary” one, a law to make everyone uphold a verdict.

    Thus it is not a case where the governement is both judge (punishing something) and party (defining what is to be the truth) but a case where it defends the position of another entity in order to maintain order : while there are few, if any, conflicts between french of turquish and armenian descent, neo-nazis and far right-wing extremists are aplenty and need to be kept under control due to their anti-democratic and violent comportement.

    Read for more details about the court’s decision.


    • Thank you for your comment, and for showing me that blog post.

      The 2011 bill did criminalise denial of rulings of the 1945 London Agreement and the 1998 Rome Statute; but, in order to protect communities from denialism of past genocides, it also criminalised denial of other crimes recognised by French courts, laws and international conventions.

      So, if a French bill (or subsequent prosecution for Armenian Genocide denial) cited a European Parliament resolution rather than a French law, it would be acceptable? Or if the prosecution cited the Swiss court’s conviction of Doğu Perinçek, it would be acceptable?

      Apart from that, I do not understand why French far right-wing extremists ‘need to be kept under control due to their anti-democratic and violent’ behaviour, whereas Turkish far right-wing extremists do not need to be kept under control for their anti-democratic behaviour. They have attacked Armenian Genocide memorials in France (e.g. the bombing of the Alfortville memorial in 1984; the defacement of the Grenoble memorial and firebombing of the Alfortville memorial in 2002); they have attacked Kurdish communities (e.g. St. Etienne in 2011).


  2. I’m no jurist, more of an historian of ancient warfare, so I could not answer you on the point of wheter a conviction or a bill based on an european text would be valid (although I suspect so). But the prosecution based upon a swiss court would probably not hold (not in the UE…)

    I was not aware of those specific events (which are still much less numerous than extreme right wing attacks on cemeteries, peoples of foreign origin, etc…) but they can (and, I presume, are) be prosecuted without using a special law.

    Also, in my own opinion as an historian, the special laws about the events of WW2 are also uncalled for. While I agree that the industrialized massacre of millons is indeed a fact worth remembering, it does not mean that the survivors of the attacked communities have to be entitled to any specific protection or a special place in the national community. Otherwise we should also have laws against criticizing those who killed nazi collaborators and died for it, laws forbidding the negation of the rwandese massacre (but that one we have on my country’s book, sorry…), etc…

    Also laws on antisemitism, anti-gay, anti-… should disapear and be replaced by one single law against hate, because hating jews is no different from hating gays, and hating jewish gays is not more hatefull than hating other peoples, it’s just the same unsavory comportement. But those laws offer high mediatic exposure, and cheap gifts to lobbies for media starving politicians looking for votes…


    • As I understand it, the point of the most recent bill was precisely to make a universal law against hate. However, it needed to address “clever”/”cunning” ways of inciting hatred (which imply vulnerable minority communities lie about history, and take political advantage of those false histories).

      According to the French Central Directorate of Internal Intelligence (DCRI), ‘Turkish foundations are directly and easily mobilized by Turkish intelligence services. Our sources in Ankara confirm that this operation [march against the ban on genocide denial] was organized by Turkish intelligence upon orders from the Turkish government.’ So the diaspora nationalist movement is a Turkish state-run programme to create conflict and violence in the international community. I think we would agree that that is different from extreme right-wing gang activity but, nonetheless, very serious indeed.


  3. Yes but then it’s just under the laws against espionage and serving a foreign governement, no need for a new law, it’s just pure old-fashioned treason ! (although the defendant would say they only serve Turkey, but then they should’nt be in France anymore.)

    (I’d just also add that the DCRI’s position must be taken with a grain of salt due to it’s boss proximity with Sarkozy)


  4. Yes! I guess they could argue that they were not undermining the French state, “only” minority communities within France. Existing laws certainly should be able to cope with these agents of foreign governments and intelligence services.



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