In our history, there are some events that might occur both in extraordinary times just like during a war period or in a time period of peace; humanity cannot accept them rightful. The United Nations, especially with the effective work of lawyer Jeremy Lemkin, called these events genocide and means of the follow-up acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious geoups, as such ;

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its

physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group. (1)

And also established the legal punishment for people who attempted to genocide, direct or indirect. In the same year with the Universal Declaration of Human Rights, Genocide Convention established in 1948 and created the basis for international effort to tackle with this crucial crime. The Second World War and Halacoust played the primary role in these developments, also for jurisdictional perspective of genocide crimes highly effected by the Holocaust.

Article 19; everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers. (2)

In 2010, a German citizen, Udo Pastörs, argued that the so-called Holocaust is being used for political and commercial purposes. He also referred to a barrage of criticism and propagandistic lies and Auschwitz projections terms about the events. (3) After two years, the German court found him guilty of violating the memory of the dead and the intentional defamation of the Jewish people. After the application of Pastors European Court of Human Rights, The Court decided that he had argued untruths to defame Jews, and this statement cannot be covered by freedom of speech. The decision of the Court established the appearance of the problem between freedom of speech and article 19 of the declaration.

In terms of Udo Pastor vs. German case, limitations for freedom of speech is not a new phenomenon. Even in the most democratic states, there are examples of this problem. Hovewer, this idea basically has a motivation to prevent hate speech and future problems between different groups of society. That phenomenon experienced its top limit with the German court decision against Udo Pastors and also with the Human Rights Court decision on this case. This event officially established the basis of limitation over Article 19 of the Universal Declaration of Human Rights. If we look from the genocide perspective, with the huge impact of the Holocaust on the international consensus for crimes against humanity, this decision has similar views with the common basis of Genocide Convention. But we should not forget one thing in this case, this decision first occurred in the domestic court of Germany, not in the international arena. After the explanation of the second case, the essay will focus on this idea more specifically.

If we move forward to the other case study of this essay, in 2005, Turkish political party leader Dogu Perincek was found guilty by the Swiss Court in terms of the criminal code of racial discrimination of Switzerland and argued that the Armenian Genocide is an established historical fact. Subsequently, the Grand Chamber stated that Dogu Perincek’s statements did not amount to incitement of hatred towards the Armenian people and had not been prosecuted for seeking to justify a genocide. (4)

Beyond the court decision, when we look at the trial day in Grand Chamber, we can see that numbers of European states attented to support Swiss Court decision; on the other side, Turkey was also behind the Dogu Perincek against the Swiss Court decision. The decision of the Grand Chamber was criticized by some scholars as a weak example of Chamber power, staying away from making any statement about the Armenian case and implementing the freedom of speech seen as an over-limit for the denial of genocide. This idea is quite logical if we look from the perspective of the Holocaust.

If we look at the academia in this topic, there are several examples of arguments in this topic, and most of them are comparing the Armenian case with the Holocaust. From that perspective, with the use of the strong emotional side of the Holocaust, comparing these cases might create some problems. The Genocide Convention is explaining core motivations of crimes against humanity, but it does not mean accepting any event as a genocide based on this. It is simply based on the recognition of people and on their conscience. The case in Germany established the judicial basis of limiting the freedom of speech, and we can say that this act also created a basis for jurisdictional recognition of Holocaust. However, in terms of the Armenian case, this recognition is still on the political parties and their motivations. The French delegation stated a rejection for the Chamber’s decision on the Perincek case, when we look at the French domestic political agenda, we can see that the French parliament recognised the Armenian case as a Genocide in 2 decades ago and they are celebrating 24 April as a remembrance day of Armenian Genocide.

There are also several other countries which recognised the Armenian case as a genocide, such as Germany, Italy, Canada, Russia and Biden using the word of Genocide in his presidential speech. However, these are all based on the political motivations of these countries, moreover, we can basically say that there is huge lobby effects on these political recognitions and, at another point, they might used as a political monouver in terms of domestic political agenda of governments. My point is more about the consequences of these actions, not the cause, but because of that I will pass the reasons behind these actions. If we focus on the consequences, political strategies of governments shape the daily life of their society. These strategies have reasons and also effects, sometimes positive but sometimes negative. In this crucial topic, genocides, political manoveurs, and actions such as the recognition of an event as genocide might cause negative effects over the freedom of speech. This right shows itself in daily life, in political aspects of the country. Democratic debate is one of the outcomes for the freedom of speech, and the threat of political actions to these democratic debates might be a reason of pressure over the parts of society. The government’s open warning to people who speak against crucial events pushes the limit of the scope of the right, enlightening from a judicial statement on the Holocaust cannot be appliacable for other events. Comparing these topics is the start point of the problem, but leaving the decision to the hands of politicians is the start point of discussion.

I am going to discuss an example in here, In 2016, French parliament established a resolution which creates a penalty to denial of crimes, and it has also include Armenian genocide denial. With this resolution, up to 1 year imprisonment and 45.000 £ fine became possible to these people who reject Armenian genocide, but in the same year, the French Constitution Court decided that the resolution is unconstitutional and blow to the freedom of expression which is neither necessary nor proportionate. The same situation also happened in 2012, similar to 2016 resolution made by same presidency rule and accepted by parliament but then struck down by constitutional court. If we look at the basis of this resolution, France formally recognized the Armenian Genocide in 2001 with a special law. First, legal basis was established, and the idea of resolution occurred.

With this example, the effects of political movements can show itself over the society in a negative way. After the constitutional decision in France, Armenian groups declared that decision as a humiliation of their identity. On the other hand, almost 800.000 Turkish population live in the France territory, the same situations happen in Germany too, and the population of Turkish people close to 3 million. As two sides of this case, political movements of governments are keeping the tension between these societies in a problematic level. In 2016, a year of imprisonment was accepted, but with this understanding, it could increase to more than 1 year, using the legal basis of recognition inside the country, when there is no authority to critize, creating the reason for the problem in the future.

With these cases and events, at the domestic level of governance, the ties of recognition of an event as a genocide are in the hands of politics, which is highly changeable and questionable authority. To understand the threat of future actions, it is better to look at these actions from an identity-politics perspective. With the rise of right-wing in European countries, identity politics started to shape the daily agenda of these countries. Brexit might be a good example of this trend. From this perspective, the tensions between the different societies became more important than the past and also the increasing power of political actions over the country also plays an important role. My question in this perspective is: how will freedom of speech be affected by these political actions in the future ? Even now, we are facing with an imprisonment penalty to denial of crimes, but this is basically a conscience of human being. Leaving a huge space to states in terms of recognition of events as a genocide and using them as a legal basis is the core of the contraversion between article 19 of the Universal Declaration of Human Rights and genocides.

References

Akçam, Taner. From Empire to Republic : Turkish Nationalism and the Armenian Genocide. Zed Books, 2004.

Baker, C. Edwin. Human Liberty and Freedom of Speech. Oxford university press, 1989.

Barendt, Eric M. Freedom of Speech. 2. ed, Oxford university press, 2005.

Castberg, Frede. Freedom of Speech in the West : a Comparative Study of Public Law in France, the United States and Germany. University press Allen & Unwin, 1960.

Court, R. o. (2019). Press release. European Court of Human Rights.

Nations, U. (1948). Genocide Convention.

Nations, U. (1948). Universal Declaration of Human Rights. United Nations.

Melson, Robert. Revolution and Genocide : on the Origins of the Armenian Genocide and the Holocaust. University of Chicago press, 1992.

Winter, Jay M., and Jay M. Winter. America and the Armenian Genocide of 1915. Cambridge university press, 2003.