The timing of this controversial initiative seemed to represent a rather blatant Nicolas Sarkozy bid for the votes of the 500,000 French citizens of Armenian descent in the upcoming presidential election. It follows similar pre-election initiatives in 2001 when the French Parliament officially declared that the massacres of Armenians in 1915 were an instance of genocide and in 2006 when the assembly first voted to criminalize Armenian genocide denial, an initiative that did not become law because the French Senate failed to give its assent.
For obvious reasons, the assembly’s action was perceived by Turkey as a hostile and provocative undertaking. The Turkish government, which has so far refused to describe the 1915 events as “genocide,” immediately reacted, warning France of adverse economic consequences if such a move went forward, and has both withdrawn its ambassador and frozen inter-governmental economic relations. The Turkish prime minister, Recep Tayyip Erdoğan, denounced the move in the French Assembly initiated by a member of Sarkozy’s party and said that, instead of condemning Turkey, France should busy itself with determining whether its tactics in Algeria, responsible for as many Algerian deaths during the 1950s, constituted genocide.
There are many issues raised by this turn for the worse in French-Turkish relations. Perhaps the most important is whether it is ever justifiable to criminalize the expression of an opinion about a historical event that goes against a societal consensus. It is true that genocide or Holocaust denial can be hurtful to those who are survivors or descendants of survivors, and identify with the victims of such severe wrongdoing, but whether the sensitivities of these communities should be protected by criminal law seems dubious, conflicting with freedom of expression and censuring inquiries into historical occurrences that are unpopular, controversial and provocative. It would seem that social pressure should be sufficient to deter all but the most extremist instances of denial if a genuine consensus exists. In this instance, such criminalization is especially unfortunate as even if the facts are reasonably well established, the relevance of genocide is ambiguous and somewhat problematic from a legal perspective.
Criminalization of denial raising tensions
And here, where Turkey has not yet been willing to describe the events of 1915 as “genocide,” the criminalization of the denial is more likely to raise tensions that encourage a long overdue accommodation. In Turkey there continues to be some questioning of the character of the events in question, not their tragic character or even a willingness to condemn Ottoman wrongdoing, but there remains a Turkish governmental and societal reluctance to pin the label of genocide on these occurrences. It is well known that the Armenian diaspora has long been seeking to induce key governments around the world to make a formal declaration that what happened in 1915 was genocide, and some 25 governments have done so, as have many lesser political entities such as sub-divisions of the state or cities.
The discourse on genocide is confusing and multi-layered. We need to distinguish genocide as a crime in international law from the political assessment of historical events as genocide due to a clear pattern of deliberate killing of an ethnic or religious group. And such a political assessment needs to be further distinguished from a moral condemnation of a pattern designed to destroy systematically a beleaguered minority that might properly be described as “genocidal,” or what has been more recently described as “ethnic cleansing” in the setting of Bosnia, which is distinct from the judicially pronounced “genocide” that shook the foundations of Rwanda in 1994.
From a legal perspective it is difficult to call these events in 1915 as genocide. After all, the word did not exist until coined by Rafael Lemkin in 1943, and the crime was not so delimited until the Genocide Convention came into force in 1951. Beyond this, the indictments at Nuremberg did not charge the surviving Nazi leaders with genocide, but convicted these Germans of “crimes against humanity” for their connection with genocidal conduct. If the Holocaust did not seem to the Nuremberg tribunal to be a distinct crime, then it seems even less plausible to regard the Armenian tragedy as genocide. When the UN expert body, the International Law Commission, put into words what was done at Nuremberg it explicitly invoked the Roman dictum prohibiting retroactivity: no crime without law (nullum crimen sine lege).
At the same time, if what took place in 1915 were to have occurred anytime after the Genocide Convention became effective, it would seem to qualify as genocide. The International Court of Justice in examining the Bosnian allegations of genocide, put the bar high by requiring written or documentary evidence of a clear intent by Serb governmental leaders to commit the crime of genocide (except in relation to the horrific massacre of several thousand Bosnian males at Srebrenica in 1995), but if such evidence was difficult to present in relation to wider Bosnian events in the 1990s, then it seems almost impossible in relation to Armenian claims dating back almost a century. If this reasoning is accepted, it has two important implications: It could provide some political space for bringing closure to the issue: Turkey could formally declare that if what happened to the Armenians in 1915 took place in the 1960s it would have been genocide, while those on the Armenian side could accept the idea that the 1915 massacres were not then genocide, but that their extent and character would constitute genocide if taking place now.
Possible mutual benefits
It seems to me that such an approach would have mutual benefits. It would bring a conflict that has endured for decades nearer to closure. It would allow Armenians to regard their victimization as genocide from a political and moral perspective, while enabling Turkey to make such a concession without fearing such legal implications as Armenian demands for reparations and the recovery of lost property. Turkish good faith and remorse could be further expressed by appropriating funds for the establishment of a major museum of Armenian History and Culture in Ankara and by recognizing April 24 as a day of Armenian remembrance.
Of course, such an approach could only succeed if there is good will and a search for positive relations between the two peoples. It is to be expected that extremists on both sides would object to such an accommodation. There would not be complete satisfaction even among the majority of Armenians and Turks, but there would be a new opening that would allow a more benevolent future to unfold for both peoples.
*Richard Falk is a professor emeritus of international law and practice who taught at Princeton University for 40 years. Hilal Elver is a professor at UC Santa Barbara.