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.
humanrightsdoctorate.blogspot.com
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)).
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