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Robert Badinter

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Armenian Genocide: Dangerous Pity

Posted: 01/25/2012 3:31 pm

The law punishing the denial or outrageous minimization of the Armenian genocide of 1915 has been adopted by the French parliament. In this pre-electoral period, the Senate has decided to reconsider its earlier rejection of a text whose purpose was identical. Let us hope that the passage of this law by the French parliament will soothe the moral wounds that the Turkish authorities' obstinate refusal to recognize the Armenian genocide of 1915 has caused the victims. I know, from my own personal experience, how cruel negationism is for the descendants of the victims of a genocide. But apart from this therapeutic function, I believe this law will bring only difficulties, including those that will afflict the Armenian community itself.

Let us suppose, for example, that a Turkish high official or specialist of public law questioned, in France, about the Armenian genocide should offer the official Turkish version of events. The Armenian associations will file suit in the French courts. The individual prosecuted will not fail to point out that the law is unconstitutional as it conflicts with his liberty of opinion and expression, as based upon the QPC (Priority Question of Constitutionality). In the debate, the Constitutional Council will necessarily be obliged to consider the question of the constitutionality of the memorial law of 2001 recognizing the Armenian genocide, as it has never been compelled to do so before. If, as a number of jurists, particularly the doyen Vedel, who expressed his viewpoint in 2002, believe this law of 2001 is tainted with unconstitutionality, both the memorial law of 2001 and the current repressive law will disappear from our legal statutes at the same time. This judicial boomerang will turn against its authors. Law will prevail and take vengeance on politics.

II.

Parliament does not have the competence to dictate history, as was excellently expressed by Pierre Nora and the members of the Liberté pour l'histoire association. Only totalitarian regimes accept an official line of history, determined by the powers that be and imposed by the judge. French justice offers others means of condemning those who would forge history, who fail in their scientific duty to intellectual honesty, rigor, and objectivity in their work. But it is not up to French legislators to put themselves in the place of historians and judges by proclaiming, in a French law, that a crime of genocide was committed in Asia Minor a century ago.

Judicial authority is the only one competent to declare if a crime has been committed and who its perpetrators are. Thus the Jewish genocide by the Nazis was established by the International Military Tribunal at Nuremberg. This tribunal, in which French magistrates participated, was the result of the London Accords, signed by France in 1944. The judgments of Nuremberg were considered res judicata, hence authoritative, in France. The same is true of crimes against humanity that occurred in ex-Yugoslavia and Rwanda and were judged by international criminal courts. No such thing exists for the Armenian genocide of 1915, committed before the international community became conscious of the moral imperative that butchers of humanity should not go unpunished. But this mission is the duty of international jurisdictions, first of all the International Criminal Court. The French parliament has no competence whatsoever in this respect and cannot set itself up as a universal judge, capable of proclaiming by French law the existence of crimes that, since they are historic, are in no way within the realm of their competence.

III.

This hubris on the part of the French parliament shall not fail to inspire reactions against France. First of all, in the international domain. The Turks are a great people who play a great role, particularly in the Middle East. They are proud of their history, even though it bears the stains of crimes and exactions of all kinds, just like that of all conquering peoples. We can call upon the Turkish authorities to go back over their history, as other European states have done. But to condemn (for that is the implicit meaning of the law of 2001) the Ottoman predecessors of a Turkish state that is our friend, to register this condemnation in our laws, this measure intended to soothe the pain of one will inevitably cause the furor of others. Since we're talking especially about Franco-Turk cooperation that currently flourishes in university and cultural spheres, we are bound to feel the weight of Turkish resentment against this legislative intrusion into an already long ago past.

I do not know if the Turkish constitution allows the parliament to vote on laws concerning history, including that of foreign nations. If such is the case, we should prepare ourselves for a rejoinder on the part of Turkish nationalist legislators proclaiming that France is the author of crimes against humanity committed in its former colonies, especially in Algeria during the war of independence. Will we protest that these tragic events do not concern Turkey? But what did the French parliament do with regard to her yesterday? Our long and tragic history should place us today on the side of international justice. It does not qualify us to appoint ourselves the judge of universal history and the moral conscience of the world.

 
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