The Perinçek case should be studied in law schools

Years ago, Turkish politician Doğu Perinçek gave a number of conferences in Switzerland on the topic: “Genocide in an imperialist lie.”

As a result, a Lausanne Police Court tried and found him guilty of racial discrimination on March 9, 2007, sentencing him to 120 days in prison before converting his prison term to a fine and postponing it.

The penalty is not important. If the Swiss court’s verdict is accepted then it would have been difficult to say the “1915 events were not a genocide” in Europe. Perinçek followed up and took the case to the European Court of Human Rights (ECHR). 

The 2nd Chamber of the ECHR ruled that the Swiss court’s conviction of Perinçek was against his human rights. But the judgment was not limited to this: It is extremely important in terms of the definition of the concept of “genocide.”

The ECHR’s judgment, dated Dec. 17, 2013, is 50 pages long. It contains many quotes from several constitutions, legal declarations and court practices. It not only describes how wide the concept of “freedom of expression” is in modern law, but it also examines in detail the legal aspect of the concept “genocide.”

The ECHR said the Holocaust is a proven historical fact, recognized by international courts, but the events of 1915 do not fall into this category. The most important legal finding of the ECHR judgment is this: “The notion of ‘genocide’ is a precisely defined legal concept ... for the crime of genocide to have taken place, the acts must have been perpetrated with intent to destroy not only certain members of a particular group, but all or part of the group itself. Genocide is a very narrow legal concept that is, moreover, difficult to substantiate.”

Despite Amal Clooney

The second chamber of the ECHR ruled that it is incompatible with freedom of thought and expression to ban saying “it was not genocide” for the arguable 1915 events, unlike the Jewish genocide. To punish this is a violation of freedom of expression.

Switzerland and intervener Armenia challenged this judgment, and the ECHR’s Grand Chamber convened in Strasbourg earlier this week. Of course, human rights attorney Amal Clooney was the focus of attention, but this did not change the legal proceedings or outcome.

The claims that Clooney made at the court on topics such as the Sevres Treaty, dated 1920, and Talat Pasha (the Ottoman commander held responsible for the unfortunate deportation decision) were responded to wisely and insightfully by Perinçek.

Actually, I don’t believe the ECHR grand chamber will ever take these individual claims seriously, because the legal aspect of the issue became clear with the original judgment of the ECHR’s 2nd chamber, as well as the previous verdicts of the French and Spanish constitutional courts, which became “established case law.”

I don’t believe the 17-judge grand chamber will now fall into an unreasonable political mistake by changing this “established case law.”

The Constitutional Council of France

I would especially draw attention to the Constitutional Council of France.

 A French court ruled in 1993 that the famous historian Bernard Lewis, who said “It was not a genocide,” must pay a fine. The French had recognized the “genocide” and Sarkozy later issued a law that criminalized its denial.

The members of the French Constitutional Council all have political origins. A significant portion of its members were appointed during the Sarkozy era. However, even the members appointed by Sarkozy decided that the law was against the French constitution and France’s 1789 declaration. (Feb. 28, 2012)

Real lawmen, who consider law above politics and interests, are like this. They reach decisions according to universal law, without feeling indebted to those who have appointed them.

These decisions of the ECHR and the Constitutional Council of France are of such caliber that they should be studied closely in all law schools.