Today’s Zaman – October 28, 2015 – A new verdict on ’Armenian Genocide’ (2)

The Grand Chamber of the European Court of Human Rights (ECtHR) gave on Oct. 15 an important verdict on the denial of the Armenian genocide.
By this verdict it upheld a judgment of the Second Section of the ECtHR on the Perinçek v. Switzerland case. The Second Section decided that the Swiss government violated Perinçek’s right of expression when it punished him on the grounds that he had violated the Swiss Penal Code by denying the Armenian genocide.
In my previous article I examined some aspects of this verdict of the Grand Chamber. In this article I will examine some of its other aspects.
In this verdict, the Grand Chamber pointed out that “unlike the international criminal courts, it had no competence to make legally binding pronouncements on whether the massacres and mass deportations suffered by the Armenian people could be characterized as genocide.” This observation regarding the competence of the ECtHR is important for Turkey because, firstly, the essence of the case consisted of whether the Swiss government violated Dr. Perinçek’s right of expression. Other claims were only peripheral and aimed at diluting the case. Therefore, the Grand Chamber did the right thing by refusing to be distracted from the substance of the case under consideration.
Secondly, Turkey has been trying for years to explain that the competence of determining whether an act could be characterized as genocide is accorded to a limited number of courts. According to the Genocide Convention (the UN Convention on the Prevention and Punishment of the Crime of Genocide), the competence to characterize an act as genocide is entrusted only to the following courts:
a) the tribunal of the state in the territory in which the act was committed
b) such international penal tribunals as may have jurisdiction with respect to those contracting parties that have accepted its jurisdiction, and
c) the International Court of Justice (in The Hague).
There were two attempts to extend this competence to the national courts of individual countries. One of these was initiated by France, the other by the EU. The French parliament adopted in December 2011 a law authorizing the French national courts to determine whether an act could be characterized as genocide. However, the French Constitutional Council repealed this law on the grounds that it contradicted the French Constitution. The repeal of the law was not because of the competence extended to the French national courts. It was because of the limitations brought to the freedom of expression, but the law did not enter into force, therefore this question does not arise in France.
The EU adopted in 2008 a Framework Decision that authorizes the national courts of the individual countries to rule whether an act could be characterized as genocide. There is no doubt that that the provision of the Framework Decision is in stark contrast with the commitment that the EU member states have taken by ratifying the Genocide Convention. This is the reason why I pointed out in my previous article that the EU will have to adapt the provisions of the Framework Decision to the verdict of the ECtHR by deleting the reference to the denial of genocide.
A curious development took place after the verdict was pronounced: Attorney Amal Alamuddin Clooney, who represented Armenia as a third party in the ECtHR case, said: “This is a victory for Armenia, because it intervened in the case because the lower court judgment had, in three paragraphs, cast doubt on the reality of the Armenian Genocide. It cast doubt on whether the massacres of 1915 constituted genocide.” In fact, the Grand Chamber abstained from providing an opinion on this particular point. The court held that “it was not required to determine whether the massacres suffered by the Armenian people could be characterized as genocide.”
It is not clear whether this is a genuine joy or an effort to disguise the disillusionment of Armenians in this important case for them.
Turkey is also satisfied with the verdict. One can only hope that this mutual satisfaction leads to a thaw in the relations between these two countries.

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