Abstract
Law’s claim of mastery over past political violence is frequently undermined by reversals of that relationship of mastery, so that the violence of the law, and especially its symbolic violence, becomes easily incorporated into longues durées of political violence, rather than mastering them, settling them, or providing closure. Doing justice to the past, therefore, requires a political and theoretical attunement to the ways in which law, in purportedly attempting to address past political violence, inscribes itself into contemporary contexts of violence. While this may be limited to an analysis of how law is an effect of and affects the political, theoretically this attunement can be further refined by means of a critique of dynamics that are internal to law itself and that have to do with how law understands its own historicity, as well as its relationship to history and historiography. This article aims to pursue such a critique, taking as its immediate focus the ECHR case of Perinçek v Switzerland, with occasional forays into debates around the criminalisation of Armenian genocide denialism in France. The Perinçek case concerned Switzerland’s criminalisation of the denial of the Armenian genocide, and concluded in 2015 after producing two judgments, first by the Second Chamber, and then by the Grand Chamber of the ECHR. However, although they both found for the applicant, the two benches had very different lines of reasoning, and notably different conceptions regarding the relationship between law and history. I proceed by tracing the shifting status of ‘history’ and ‘historians’ in these two judgments, and paying attention to the deferrals, disclaimers and ellipses that structure law’s relation to history. This close reading offers the opportunity for a critical reappraisal of the relationship between law, denial and violence: I propose that the symbolic violence of the law operative in memory laws is a product of that which remains unresolved in law’s understanding of historicity (including its own), its self-understanding vis-à-vis the task of historiography, and its inability to respond to historical violence without inscribing itself into a history of violence, a process regarding which it remains in denial.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
In the end, the French draft bill did not come into force because a political decision prevented it from appearing on the Senate’s agenda. Later, in 2011, a draft bill criminalising the denial of genocides ‘recognised by law’ (including the Armenian genocide, officially recognised in France in 2001, with law no. 2001-70) was passed by both the French National Assembly and the Senate, but overturned by the Constitutional Council in February 2012 (decision no. 2012-647). This was repeated more recently with a draft bill, specifically criminalising the denial of the Armenian Genocide, passed in 2016 and overruled by the Constitutional Council in January 2017 (decision no. 2016-745).
At the time of writing, the Hrant Dink murder trial is ongoing with 85 suspects including senior officials of the Turkish gendarmerie and police.
Dink articulated this in numerous interviews at the time. See also, a letter to the French daily Liberation that he co-signed with eight others, published one week before the draft bill was due to be debated in the National Assembly: ‘Le travail sur l’histoire sera bloqué en Turquie’, Liberation, 10 May 2006, p. 35.
At the time, Archbishop Mesrob II Mutafyan, the Armenian Patriarch of Constantinople, stated that ‘As Turkish Armenians we feel serious pressure in relation to this bill’ and called for increased state security to protect churches and minority schools (Hürriyet2016).
EU Framework Decision 2008/913/JHA of 28 November 2008.
While some commentators identify this shift as a full about-turn (e.g. Zileli 2015) others trace the party’s currently amplified strands of ultranationalism, militarism, Kemalism and statism to its conception of the political in its earlier guises (Birikim 1997; Aydın 1998). See also Polat (2014) for a discussion of Perinçek’s contemporary political position as neo-conservative, neo-nationalist and neo-Eurasianist.
See Ertür (2016), where I explore the bizarre ironies of the Ergenekon process.
See Detailed Judgment in the Ergenekon Case. Perinçek and other Ergenekon defendants’ convictions were overturned by the Court of Appeal in April 2016 due to its finding of a host of procedural irregularities, and a retrial was ordered, which began in June 2017 and is ongoing at the time of writing.
The focus of this article, namely, the contemporary entanglements of law and denial, preclude a wider review of the different arguments and strategies historically employed in the service of denying the Armenian genocide. This is the subject of numerous careful studies published over the last few decades, notably by Hovannisian (1984, 1998) and Charny (1991), and more recently a monumental undertaking by Göçek (2015) who traces patterns of collective denial across hundreds of Turkish memoirs.
Although see Hovannisian (1998) for numerous commonalities between Holocaust denialism and Armenian genocide denialism.
Under ‘Count 3: War crimes’: ‘[The defendants] conducted deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian populations of certain occupied territories in order to destroy particular races and classes of people and national, racial, or religious groups, particularly Jews, Poles, and Gypsies and others.’ (IMT Indictment, VIII A).
Geoffrey Robertson QC, representing Armenia, made this point in the Grand Chamber hearing (Perinçek, Webcast of GC Hearing).
For example, historian Taner Akçam (2012) draws on a variety of sources in his attempt to prove intent, including testimonies given in the Ottoman Courts-Martial of 1919–2020 which sentenced Talât and others to death for organising the massacres of Armenians, reports of Talât’s discussions with foreign diplomats, and cables sent by Talât in his capacity as Interior Minister. See also Dadrian and Akçam (2011) for an extended discussion of the Ottoman Courts-Martial, including English translations of the key remaining documents of this process.
Although, for an exception, see Fatallayev v Azerbaijan (2010).
The cited article by Laurent Pech provides a comprehensive review of criminalisation of Holocaust denial in Europe, and offers a critical take on the EU Framework Decision 2008/913/JHA of 28 November 2008, which calls for each member state to ensure that ‘publicly condoning, denying or grossly trivialising crimes of genocide, crimes against humanity and war crimes’ is punishable. Pech had the opportunity to test some of his analyses and arguments as Perinçek’s counsel in the ECtHR Grand Chamber hearing on 28 January 2015, see Perinçek, Webcast of GC Hearing.
Compare this to infamous Holocaust denier Faurisson, whose language ‘is that of the positivist; he is endlessly calling for the opening of archives and the engagement of debate’ (Mehlman 1992, p. 19).
Compare, again, to Faurisson, who Pierre Vidal-Naquet famously identified as a ‘paper Eichmann’: ‘Eichmann crossed Europe to organize the train transport system. Faurisson does not have trains at his disposal, but paper. P. Guillaume describes him for us: “a man thoroughly in possession of his subject (200 kg of working documents, representing research on several tons of texts)” (Vérité, p. 139)’ (Vidal-Naquet 1992, p. 24).
In freedom of expression cases at the ECtHR, the profession of the applicant is taken into account, and for good reason (see discussion in Hennebel and Hochmann 2011, pp. 28–29). Yet the emphasis on Perinçek’s 50-year-old doctoral qualification when his subsequent career has had nothing to do with legal practice or scholarship is conspicuous.
See Fraser (2011, pp. 21–22) for an argument in favour of such self-referentiality in memory laws.
Surprising given his own (Pech 2011) questioning of the soundness of ECtHR’s notion of ‘clearly established historical facts’.
The ultimate wisdom and desirability of this formulation around the woundedness of an identity can of course be questioned (cf. Brown 1995).
See, however, Kahn (2017) for an important and insightful set of objections to the ‘nexus argument’ mobilised in the Perinçek case, whereby a nexus is required between the state enacting the ban on denial and the historical act being denied.
References
Akçam, Taner. 2012. The Young Turks’ crime against humanity. Princeton: Princeton University Press.
Aydın, Suavi. 1998. ‘Milli Demokratik Devrim’den ‘Ulusal Sol’a Türk solunda özgücü eğilim. Toplum ve Bilim 78: 59–91.
Belavusau, Uladzislau, and Aleksandra Gliszczyńska-Grabias (eds.). 2017. Law and memory: Towards legal governance of history. Cambridge: Cambridge University Press.
Birikim. 1997. Geçmişin ‘Aydınlık’ından dersler. Birikim 98: 19–30.
Brown, Wendy. 1995. States of injury: Power and freedom in late modernity. Princeton: Princeton University Press.
Charny, Israel W. 1991. The psychology of denial of known genocides. In Genocide: A critical bibliographic review, vol. 2, ed. Israel W. Charny, 3–37. London: Mansell.
Christodoulidis, Emilios. 2001. Law’s immemorial. In Lethe’s law: Justice, law, and ethics in reconciliation, ed. Emilios Christodoulidis and Scott Veitch, 207–227. Oxford: Hart.
Cohen, Stanley. 2001. States of denial: Knowing about atrocities and suffering. Cambridge: Polity Press.
Dadrian, Vahakn N., and Taner Akçam. 2011. Judgment at Istanbul: The Armenian Genocide trials. New York: Berghahn.
Derrida, Jacques. 2000. Performative powerlessness: A response to Simon Critchley. Constellations 7 (4): 466–468.
Derrida, Jacques. 2002. Declarations of independence. In Negotiations: Interventions and interviews, 1971–2001, trans. Tom Keenan and Tom Pepper, 46–54. Stanford: Stanford University Press.
Earl, Hilary. 2013. Prosecuting genocide before the Genocide Convention: Raphael Lemkin and the Nuremberg Trials, 1945–1949. Journal of Genocide Research 15 (3): 317–337.
Eğrikar, Özge. 2010. ‘Milli Menfaat’ten AİHM’ye Gidiyor’, Hürriyet, 20 January. http://www.hurriyet.com.tr/milli-menfaat-ten-aihm-ye-gidiyor-28004890. Accessed 29 November 2018.
El-Enany, Nadine, and Sarah Keenan. 2015. ‘I am Charlie and I guard the master’s house’. Critical Legal Thinking, 13 January 2015. http://criticallegalthinking.com/2015/01/13/charlie-guard-masters-house/. Accessed 25 July 2018.
Ertür, Başak. 2016. The conspiracy archive: Turkey’s ‘deep state’ on trial. In Law, violence, memory: Uncovering the counter-archive, ed. Stewart Motha and Honni van Rijswijk, 177–194. London: Routledge.
Fraser, David. 2011. Law’s Holocaust denial: State, memory, legality. In Genocide denials and the law, ed. Ludovic Hennebel and Thomas Hochmann, 3–48. Oxford: Oxford University Press.
Fronza, Emanuela. 2018. Memory and Punishment: Historical denialism, free speech and the limits of criminal law. The Hague: Asser Press.
Göçek, Fatma Müge. 2015. Denial of violence. Oxford: Oxford University Press.
Hart, H.L.A. 1983. Essays in jurisprudence and philosophy. Oxford: Clarendon.
Hart, H.L.A., and David Sugarman. 2005. Hart interviewed: H.L.A. Hart in conversation with David Sugarman. Journal of Law and Society 32 (2): 267–293.
Hennebel, Ludovic, and Thomas Hochmann (eds.). 2011. Genocide denials and the law. Oxford: Oxford University Press.
Hovannisian, Richard G. 1984. Genocide and denial: The Armenian case. In Toward the understanding and prevention of genocide: Proceedings of the International Conference on the Holocaust and Genocide, ed. Israel W. Charny, 84. Boulder: Westview Press.
Hovannisian, Richard G. 1998. Denial of the Armenian Genocide in comparison with Holocaust denial. In Remembrance and denial: The case of the Armenian Genocide, ed. R. Hovannisian, 201–236. Detroit: Wayne State University Press.
Hürriyet. 2016. ‘Ermeni Patriği: Fransızlar diyaloğu sabote ettiler’, 13 October. http://www.hurriyet.com.tr/gundem/ermeni-patrigi-fransizlar-diyalogu-sabote-ettiler-5251443. Accessed 8 July 2018.
Kahn, Robert A. 2017. Banning genocide denial—Should geography matter? In Law and memory: Towards the legal governance of history, ed. Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias, 329–347. Cambridge: Cambridge University Press.
Lobba, Paolo. 2015. Holocaust denial before the European Court of Human Rights: Evolution of an exceptional regime. European Journal of International Law 26 (1): 237–253.
Löytömäki, Stiina. 2014. Law and the politics of memory: Confronting the past. London: Routledge.
Lyotard, Jean-François. 1988. The differend: Phrases in dispute, trans. Georges van Den Abbeeele. Minneapolis: University of Minnesota.
Mamdani, Mahmood. 2006. The political uses of free speech. Outlook, 14 February 2006. https://www.outlookindia.com/website/story/the-political-uses-of-free-speech/230211. Accessed 25 July 2018.
Mehlman, Jeffrey. 1992. Foreword. In Assassins of memory: Essays on the denial of the Holocaust, ed. Pierre Vidal-Naquet, ix–xxi. New York: Columbia University Press.
Milliyet. 2006. ‘Fransa’da “soykırım yapılmadı” derim’. 9 October. http://www.milliyet.com.tr/fransa-da–soykirim–yapilmadi–derim/siyaset/haberdetayarsiv/09.10.2006/173613/default.htm. Accessed 25 July 2018.
Nichanian, Marc. 1999. The truth of the facts. In Remembrance and denial: The case of the Armenian Genocide, ed. Richard G. Hovannisian, 249–270. Detroit: Wayne State University Press.
Nichanian, Marc. 2009. The historiographic perversion. Trans. Gil Anijdar. New York: Columbia University Press.
Polat, Necati. 2014. Resistance to regime change in the Middle East. Interventions 16 (5): 634–654.
Sands, Philippe. 2016. East-West Street: On the origins of genocide and crimes against humanity. London: Weidenfeld & Nicolson.
Vidal-Naquet, Pierre. 1992. Assassins of memory: Essays on the denial of the Holocaust. Trans. Jeffrey Mehlman. New York: Columbia University Press.
Wallerstein, Immanuel. 2006. European universalism: The rhetoric of power. New York: New Press.
Zileli, Gün. 2015. 41 yıl önceki TİİKP ve bugünkü VP. 14 May 2015 http://www.gunzileli.com/2015/05/15/41-yil-onceki-tiikp-ve-bugunku-vp/. Accessed 25 July 2018.
Legal Sources
Constitutional Council (France) Decision no. 2012-647 DC of 28 February 2012.
Constitutional Council (France) Decision no. 2015-512 QPC of 8 January 2016.
Constitutional Council (France) Decision no. 2016-745 DC of 26 January 2017.
Chauvy v France. 2004. European Court of Human Rights. Application no. 64915/01. Judgment 29 June 2004.
Dink v Turkey. 2010. European Court of Human Rights. Application no. 2668/07. Judgment 14 September 2010.
Ergenekon Case (Turkey) Detailed Judgment. 2014. Istanbul 13th High Criminal Court. Case no: 2009/191. Judgment no: 2013/95.
Fatallayev v Azerbaijan. 2010. European Court of Human Rights. Application no. 40984/07. Judgment 22 April 2010.
Lewis Case (France) High Court of Paris. 21 June 1995: Juris-Data no. 044058.
Lehideux and Isorni v France. 1998. European Court of Human Rights. Application no. 24662/94. Judgment 23 August 1998.
Pech, Laurent. 2011. The Law of Holocaust Denial in Europe. In Genocide denials and the law, ed. Ludovic Hennebel, and Thomas Hochmann, 185–234. Oxford: Oxford University Press.
Perinçek v Switzerland. 2013. European Court of Human Rights. Application no. 27510/08. Chamber Judgment 17 December 2013.
Perinçek v Switzerland. 2015. European Court of Human Rights. Application no. 27510/08. Webcast of Grand Chamber Hearing. 28 January 2015. https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=2751008_28012015&language=lang&c=&py=2015. Accessed 25 July 2018.
Perinçek v Switzerland. 2015 [GC]. European Court of Human Rights. Application no. 27510/08. Grand Chamber Judgment 15 October 2015.
Author information
Authors and Affiliations
Corresponding author
Additional information
Publisher's Note
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
Rights and permissions
About this article
Cite this article
Ertür, B. Law of Denial. Law Critique 30, 1–20 (2019). https://doi.org/10.1007/s10978-019-09237-8
Published:
Issue Date:
DOI: https://doi.org/10.1007/s10978-019-09237-8