The ‘genocide decision’ of France’s Constitutional Council

The recent rulings from France’s Constitutional Council about Holocaust denial and the Armenian incidents of 1915 are important from a couple of angles. 

Firstly, it ruled that for an incident to be considered “genocide” there has to be a court decision. Secondly, it stated that national parliaments are not authorized in these matters, strengthening the separation of powers principle. Thirdly, it sets an important example for universal law developing with case law in our times.

The French Parliament on Jan. 29, 2001 passed a one-article law: “France officially recognizes the 1915 Armenian genocide.” After this, Sarkozy came to power and just before the January 2012 election he passed a law criminalizing denial of the genocide recognized by law. The French Constitutional Council then annulled this law the next month, on the grounds that it was against freedom of expression and the separation of powers.

That’s how the story began. 

French citizen Vincent Reynouard, who was associated with Neo-Nazis, was sentenced due to denial of the Holocaust. He then made an “individual application” to the Constitutional Council, claiming that as denial of the Armenian genocide was within the boundaries of freedom of expression, denial of the Holocaust should also be considered the same - it should not be criminalized. Reynouard demanded “equality.” 

His application passed through the French Court of Cassation, and Armenian associations intervened in the case. They asked for the proclamation of the 1915 incidents as genocide, like the Holocaust. 

An association founded by Turks, the “Impartiality in Turkish History Education” association, also intervened. It stated that as the French Constitutional Council annulled Sarkozy’s law, the decree ordering that classes should teach that Turks carried out genocide against the Armenians should also be annulled. 

Ultimately however, the Council did not rule in favor of either Armenians or the Turks, because neither was included in Reynouard’s demands. 

The law and the decree that Turkish-origin French citizens want annulled have an older date. To take them to the Council now, other judicial paths must be sought. 

The ruling of the Council distinguishes between the Holocaust and 1915. There is an international court decision about the Holocaust. “Genocide” can only be determined by a court ruling, and there is no such ruling about 1915. 

However, in 2001 the French Parliament passed a law stating that 1915 did amount to genocide. Isn’t that enough? 

Apparently not. The Council, in sum, said genocide cannot be proven by a decision of parliament and its denial cannot be criminalized just because there is a parliamentary decision. This very important principle was also expressed in the European Court of Human Rights (ECHR) ruling of 2012 in the “Perinçek” case: “The law has the function of laying down rules and must accordingly have a normative scope. A legislative provision with the purpose of ‘recognizing’ a crime of genocide cannot in itself have the normative scope attaching to the law.” 

In other words, the issue is about the universal principle of the separation of powers: A majority in parliament sets the rules but it cannot pass laws that fall within the judiciary’s jurisdiction.

So do you see how important the separation of powers is in a state of law? 

The meaning of universal jurisprudence expressed by the French Constitutional Council, the Spanish Constitutional Court, and the judgments of the ECHR shows that one can say 1915 was either genocide or not genocide. This is a political view, and without a judicial ruling parliaments and governments cannot judge whether a case amounts to genocide.

I thank and pay my respects to retired Ambassador Şükrü Elekdağ, who closely monitored the entire process in France.