William A. Schabas
The controversial Swiss genocide denial law has been held by the European Court of Human Rights to violate the protection of freedom of expression enshrined in article 10 of the European Convention on Human Rights. The case concerned prosecution by Swiss courts of Doğu Perinçek, a Turkish national who had described the Armenian genocide as an "international lie." Two members of the seven-judge Chamber dissented. The Swiss government can apply for leave for the matter to be reconsidered by the 17-judge Grand Chamber.
The Swiss legislation makes it a criminal offence to violate the human dignity of a person or a group of persons because of their race, ethnic identity or religion by denying, grossly minimising or seeking to justify "a genocide or other crimes against humanity." The Court said that reference to ‘a genocide’ may not be sufficiently precise (para. 71), although it said that under the circumstances of the case this did not raise a problem in terms of the foreseeability of criminal liability.
The European Court referred to the complexity of the legal debates about the definition of genocide. It disagreed with the Swiss Court that there was a "general consensus" on this as far as the Armenian genocide is concerned. (para. 116). It went on to say that "il est même douteux qu’il puisse y avoir un « consensus général », en particulier scientifique, sur des événements tels que ceux qui sont en cause ici, étant donné que la recherche historique est par définition controversée et discutable et ne se prête guère à des conclusions définitives ou à des vérités objectives et absolues" (para. 117).
Note that the decision is as yet only available in French. Google translate provides a pretty good rendition: "it is doubtful that there can be a 'general consensus,' especially scientific, on events such as those at issue here, since historical research is controversial and debatable definition does not lend itself to definitive conclusions or objective truths and absolute."
The Court also noted that in prosecutions of other "deniers," the debate had focussed on the facts, such as the existence of gas chambers, and not the legal qualification of them.
The Court cites with approval a paragraph in General Comment 34 of the Human Rights Committee that states: "Laws that penalize the expression of opinions about historical facts are incompatible with the obligations that the Covenant imposes on States parties in relation to the respect for freedom of opinion and expression." The footnote to this paragraph refers to the Faurisson v. France decision of the Committee which, as I read it, actually says the opposite. (*) My suspicion is that the Human Rights Committee changed its mind on the point as it was debating General Comment 34.
Note by "Armeniaca" (emphasis is ours)
(*) "9.1 The Human Rights Committee has considered the present communication in the light of all the information made available to it by the parties, as it is required to do under article 5, paragraph 1, of the Optional Protocol.
9.2 The Committee takes note of public debates in France, including negative comments made by French parliamentarians on the Gayssot Act, as well as of arguments put forward in other, mainly European, countries which support and oppose the introduction of similar legislations.
9.3 Although it does not contest that the application of the terms of the Gayssot Act, which, in their effect, make it a criminal offence to challenge the conclusions and the verdict of the International Military Tribunal at Nuremberg, may lead, under different conditions than the facts of the instant case, to decisions or measures incompatible with the Covenant, the Committee is not called upon to criticize in the abstract laws enacted by States parties. The task of the Committee under the Optional Protocol is to ascertain whether the conditions of the restrictions imposed on the right to freedom of expression are met in the communications which are brought before it.
9.4 Any restriction on the right to freedom of expression must cumulatively meet the following conditions: it must be provided by law, it must address one of the aims set out in paragraph 3 (a) and (b) of article 19, and must be necessary to achieve a legitimate purpose.
9.5 The restriction on the author's freedom of expression was indeed provided by law i.e. the Act of 13 July 1990. It is the constant jurisprudence of the Committee that the restrictive law itself must be in compliance with the provisions of the Covenant. In this regard the Committee concludes, on the basis of the reading of the judgment of the 17th Chambre correctionnelle du Tribunal de grande instance de Paris that the finding of the author's guilt was based on his following two statements: "... I have excellent reasons not to believe in the policy of extermination of Jews or in the magic gas chambers ... I wish to see that 100 per cent of the French citizens realize that the myth of the gas chambers is a dishonest fabrication". His conviction therefore did not encroach upon his right to hold and express an opinion in general, rather the court convicted Mr. Faurisson for having violated the rights and reputation of others. For these reasons the Committee is satisfied that the Gayssot Act, as read, interpreted and applied to the author's case by the French courts, is in compliance with the provisions of the Covenant.
9.6 To assess whether the restrictions placed on the author's freedom of expression by his criminal conviction were applied for the purposes provided for by the Covenant, the Committee begins by noting, as it did in its General Comment 10 that the rights for the protection of which restrictions on the freedom of expression are permitted by article 19, paragraph 3, may relate to the interests of other persons or to those of the community as a whole. Since the statements made by the author, read in their full context, were of a nature as to raise or strengthen anti-semitic feelings, the restriction served the respect of the Jewish community to live free from fear of an atmosphere of anti-semitism. The Committee therefore concludes that the restriction of the author's freedom of expression was permissible under article 19, paragraph 3 (a), of the Covenant.
9.7 Lastly the Committee needs to consider whether the restriction of the author's freedom of expression was necessary. The Committee noted the State party's argument contending that the introduction of the Gayssot Act was intended to serve the struggle against racism and anti-semitism. It also noted the statement of a member of the French Government, the then Minister of Justice, which characterized the denial of the existence of the Holocaust as the principal vehicle for anti-semitism. In the absence in the material before it of any argument undermining the validity of the State party's position as to the necessity of the restriction, the Committee is satisfied that the restriction of Mr. Faurisson's freedom of expression was necessary within the meaning of article 19, paragraph 3, of the Covenant.
10. The Human Rights Committee, acting under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, is of the view that the facts as found by the Committee do not reveal a violation by France of article 19, paragraph 3, of the Covenant.
(Robert Faurisson v. France, Communication No. 550/1993 , U.N. Doc. CCPR/C/58/D/550/1993(1996)).