Payam Akhavan is a Professor of International Law at McGill University in Montreal,
Canada, and a Visiting Fellow at Oxford University. He was previously a
UN prosecutor at The Hague and has served as counsel in leading cases
before international courts and tribunals. He spoke to CivilNet about
his representation of a coalition of Armenian and Turkish NGOs that have
intervened in the Perincek case, heard by the Grand
Chamber of the European Court of Human Rights in Strasbourg on January
28, 2015. Dogu Perincek, an ultra-nationalist Turkish politician and member
of the Talat Pasha Committee, had been convicted in Switzerland for
incitement to discrimination for having called the Armenian Genocide an
“international lie”. Before the European Court, he succeeded in arguing
that his freedom of expression had been violated, and that he was not
promoting hatred, because he was only questioning the legal
classification of the events of 1915, which he did not deny. After a
campaign by Armenian and Turkish NGOs, the Swiss government was
persuaded to appeal the case to the Grand Chamber of the European Court,
to try and reverse this flawed decision.
Professor Akhavan, how did you become involved with the Perincek case?
I
was first alerted to the Perincek decision by my friends at the Zoryan
Institute in Toronto. They were very concerned about this legal
precedent being used by the Turkish Government as well as
ultranationalist politicians to argue that the European Court denies
that the events of 1915 constituted genocide. That of course is not
what the Court said, but its decision was twisted and misrepresented, to
reinforce the long-standing policy of denial and incitement to hatred
against Armenians. Zoryan led a costly campaign to publish
advertisements in Swiss newspapers in both French and German and to
cooperate with other Armenian organizations to persuade Switzerland to
appeal the case. They had to overcome the opposition of Turkey which of
course did not want the case to be appealed. Turkey had intervened in
support of Perincek even though its own courts, the Istanbul Penal
Court, had convicted him of being a leading member of the Ergenekon
terrorist organization! It is important that Turkish NGOs such as the
Turkish Human Rights Association, the oldest and biggest human rights
NGO in Turkey with thousands of members, had also written to the Swiss
Government in favour of an appeal. Once Switzerland agreed to appeal
the case, we decided to put together a coalition of Armenian and Turkish
NGOs to intervene in the case. We thought that the composition of the
coalition itself would be a powerful message to the Court that this was
not an “Armenian” issue; it was a human rights issue. Perincek was not
interested in academic debates on international law, and whether the
term “genocide” applies to the events of 1915 or not. He is an
ultranationalist politician whose platform is incitement to hatred
against Armenians, based on paranoid conspiracy theories and historical
revisionism. It was also imperative for the Court to know the details
of the Ergenekon judgment and for this we needed qualified and dedicated
Turkish lawyers and activists and translators and months of work in
coordination with knowledgeable and diligent researchers at Zoryan and
the lawyers in London and Oxford to go through the 17,000 pages of the
decision, the international case-law, and complex arguments, to find
what was most relevant to establishing the discriminatory motives of
Perincek. So in the end, the coalition was Zoryan, or rather then
Institute for Genocide and Human Rights Studies, which is under Zoryan’s
umbrella, together with the Turkish Human Rights Association and the
Truth Justice Memory Centre in Istanbul, and the combined efforts of
this team, I think, had outstanding results in terms of the quality and
importance of the submission, which could have significant impact on the
Court’s decision, and which represents evidence that no other party has
brought forward in this case. In other words, without this
intervention, without this NGO coalition, the facts of the Ergenekon
judgment, and Perincek’s true agenda, would not have come to light.
Is the case about the historical truth of the Armenian Genocide? What is really at issue?
We
have emphasized that the case is not about the historical truth as
such. From the perspective of human rights law, freedom of expression
under Article 10 of the European Convention on Human Rights, is
subjected to certain limitations. One of those is when speech amounts
to incitement to discrimination and hatred. So debates about the
historical truth or legal classification of atrocities as genocide or
some other label are not the real issue. The fundamental issue is
whether Perincek’s statements when considered in their proper context
constitute incitement to discrimination and hatred.
What does the intervention of the coalition add that the other parties to the case have not already said? Why is it significant?
The
Court did not consider the impact of Perincek’s statements on Armenians
in Turkey. It may be more difficult to argue that his inflammatory
statements threaten Armenians in Switzerland. But anyone that knows
about the murder of Hrant Dink and the continuing cover-up in failing to
punish the culprits knows that calling the Armenian Genocide “a big
lie” is clearly hateful, and can even result in violence against
Armenians in Turkey. The Swiss judgment against Perincek did refer to
his membership of the Talat Pasha Committee, so this fact is in the
record. All that we did was to provide the Grand Chamber with a fuller
picture of the significance of that Committee, which of course, is also
referred to by the Istanbul Penal Court in the Ergenekon judgment.
Indeed, that judgment refers to Perincek as the head of “propaganda”
and “psychological war,” refers to his promotion of hatred against
Armenians, and further links Ergenekon with the murder of Dink and
members of other Christian minorities in Turkey. Turkey’s intervention
argues desperately that only what Perincek did in Switzerland is
relevant; that the Court should somehow ignore who Perincek really is
and why he is on this relentless campaign to deny the Armenian Genocide.
Clearly, the case is not about whether international lawyers could
dispute legal classification of those events as genocide, and it would
be a mistake to go to Court and argue that it is a genocide as if that
is the issue. The issue is whether Perincek has discriminatory motives
and the answer to that question is rather obvious.
How do you contrast the intervention of this NGO coalition with that of Armenia and Turkey?
Governments
are obviously important given that they are the ones that signed the
European Convention that established the Court. But Governments have
political interests and their perspectives are shaped by different
considerations than civil society actors such as human rights NGOs. I
think it is important that in this second round, Armenia has intervened,
just as Turkey did in the first round, and now, in the second round.
Perhaps their respective submissions will neutralize each other. But I
think the Court will take notice that Armenian and Turkish human rights
NGOs, that are not motivated by political interests, are joining forces
to expose Perincek’s hateful and violent agenda. And I believe that
the details of the Ergenekon judgment will be crucial evidence of his
motivations, based on the decision of Turkey’s own courts! Finally, I
think that with all the media hype and attention being given to this
case, we must not forget that the real heroes are the Turkish human
rights activists and intellectuals that are standing in solidarity with
their fellow Armenians in Turkey, who face a life of increasing pressure
and intimidation and even violence. The Turkish activists face hate
mail and death threats for having stood in solidarity on the issue of
the Armenian Genocide. They are courageous and righteous, and deserve
our praise and recognition as one of the most important voices in the
Perincek affair.
civilnet.am, January 24, 2015
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