Garibian Sevane
Garibian Sevane
Garibian Sevane
Sévane Garibian*
* Sévane Garibian is a Doctor in Law from the University of Paris X – Nanterre (France)
and the University of Geneva (Switzerland). The subject of her research is the legal concept of
crime against humanity (international criminal law, legal theory). Her PhD Thesis (2007) is ti-
tled : Crime against humanity and the founding principles of the modern state : birth and consecra-
tion of a concept. She is a member of the International Association of Genocide Scholars.
Recent publications include A Commentary on David Scheffer’s Concepts of Genocide and
Atrocity Crimes, 2 GENOCIDE STUDIES AND PREVENTION 43 (2007), and Crimes against humanity
and international legality in legal theory after Nuremberg, 9 J. OF GENOCIDE RES. 93 (2007).
1 Thirst, in GRAND CENTRAL SCHOOL OF ART QUARTERLY (reprinted in ETHEL K. SCHWA-
the fact that genocide denial is not considered a “crime” in French law – but a “délit”
(misdemeanour).
3 For an analysis of the debate related to the so-called “lois mémorielles” (“memorial
laws”), first launched by the enactment of a law which enjoins teachers to recognize “the positive
role of the French presence overseas, notably in north Africa” (Law No. 2005-158 of Feb. 24,
2005, Journal Officiel de la République Française [J.O.] [Official Gazette of France], art. 4. (em-
phasis added)), see LA COLONISATION, LA LOI ET L’HISTOIRE (Claude Liauzu & Gilles
Manceron eds., Syllepse 2006); Patric Fraissiex, Le Droit Mémoriel, in REVUE FRANÇAISE DE
DROIT CONSTITUTIONNEL, 483–508 (2006); Emmanuel Cartier, Rivalité ou Complémentarité?,
R.F.D.C. no. 67, 507 (2006); Sévane Garibian, Pour Une Lecture Juridique des Quatre Lois
‘Mémorielles’, ESPRIT, (2006).
479
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4 See the petition titled “Liberté pour l’Histoire” (“Freedom for History”) originally signed
by 19 historians (then, rapidly, by many others) and published in the three most important
French newspapers: that is LIBÉRATION, Dec. 13, 2005, at 35, as well as Jean Baptiste De Mon-
tralon, Mémoire et Historie, Examen Critique ou Repentance: Le Débat Fait Désormais Rage, LE
MONDE Dec. 14, 2005, at 10 and Delphine Chayet, Dix-neuf Historiens Signet une Pétition Contre
La ‘Vérité Officielle,’ LE FIGARO Dec. 14, 2005 at 9. The petition claims for the abrogation of all
“memorial laws” without distinction. See François Terré, Négation du Génocide Arménien: une
loi au Mépris du Droit, LE FIGARo, Oct. 13, 2006, at 16; Michel Wieviorka, Les Députés Contre
L’histoire, LE MONDE, Oct. 17, 2006, at 23; Jean-Philippe Feldman, Il Faut Abolir la loi Gayssot!,
LE MONDE, Oct. 18, 2006, at 19; Jérôme de Hemptinne, Génocide: L’engrenage, LIBÉRATION,
Oct. 25, 2006, at 33. For different views, see Sévane Garibian, Du Négationnisme Considéré
Comme Atteinte à L’ordre Public, LE MONDE, May 13, 2006, at 22; Sévane Garibian, La Néga-
tion, Objet Légitime du Droit, LIBÉRATION, Nov. 3, 2006, at 28; Alain Policar, Histoire: Trois
Bonnes lois et une Mauvaise, LE MONDE, Oct. 18, 2006, at 19; Bernard-Henry Lévy, Arménie:
Loi Contre Génocide, LE MONDE, Feb. 2, 2007, at 20.
5 Penalization of genocide denial is, indeed, not new in France: it has been provided for
since July 13, 1990, with the adoption of the Gayssot Law, which exclusively protects the mem-
ory of the Jewish genocide. The bill, adopted on October 12, 2006, aims at extending this protec-
tion to the Armenian genocide. It still needs to be adopted by the French Senate and then
promulgated by the President of the Republic to finally become a law.
6 DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN art. 4 (Fr. 1789) [hereinafter
1789 Declaration](“Liberty consists in the freedom to do everything which injures no one else;
hence the exercise of the natural rights of each man has no limits except those which assure to
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the other members of the society the enjoyment of the same rights. These limits can only be
determined by law.”).
7 Decision no. 71-44 DC of the Conseil constitutionnel, 16 July 1971 (the Conseil constitu-
tionnel is an independent body created to control the constitutionality of government acts and
the regularity of elections and referenda).
8 1789 Declaration, supra note 6, at art. 10 (“No one shall be disquieted on account of his
opinions, including his religious views, provided their manifestation does not disturb the public
order established by law.”). “The free communication of ideas and opinions is one of the most
precious of the rights of man. Every citizen may, accordingly, speak, write, and print with free-
dom, but shall be responsible for such abuses of this freedom as shall be defined by law.” Id. at
art. 11.
9 While article 10 § 1 of the 1950 European Convention establishes that
[e]veryone has the right to freedom of expression . . .,” 10 § 2 reads: “The exercise of
these freedoms, since it carries with it duties and responsibilities, may be subject to
such formalities, conditions, restrictions or penalties as are prescribed by law and are
necessary in a democratic society, in the interests of national security, territorial in-
tegrity or public safety, for the prevention of disorder or crime, for the protection of
the reputation or the rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of the
judiciary.
Id. G.A. Res. 2200A GAOR SUPP. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171
(Mar. 25, 1976).
10 United Nations International Covenant on Civil and Political Rights, Dec. 16, 1966, Arti-
11 For developments, see Régis de Gouttes, A Propos Du Conflit Entre Le Droit à la Liberté
sot Law include “the bases of a democratic society,” as well as “justice” and “peace”: Pierre
Marais c. France, decision of the European Commission (24 June 1996); Garaudy c. France,
decision of the European Court (24 June 2003); Juris-Data, cour d’appel [CA] [regional court of
appeal] Aix-en-Provence, Jan. 7, 1993, JURIS DATA n° 040945.
13 Cf. infra note 43.
14 KARL POPPER, THE OPEN SOCIETY AND ITS ENEMIES 668 (Routledge 2002 ) (1945). For a
careful study of the “paradox of tolerance,” see Michel Rosenfeld, Extremist Speech and the
Paradox of Tolerance, 100 HARV. L. REV. 1457 (1987).
15 See FRANCIS D’SOUZA, STRIKING A BALANCE: HATE SPEECH, FREEDOM OF EXPRESSION,
AND NON-DISCRIMINATION, ARTICLE 19 (1992); Boyle, . . .,” supra note 10, at 487–502; ROBERT
A. KAHN, HOLOCAUST DENIAL AND THE LAW: A COMPARATIVE STUDY (Palgrave Macmillan
2004).
16 LEE C. BOLLINGER, THE TOLERANT SOCIETY: FREEDOM OF SPEECH AND EXTREMIST
CONSTITUTION 197 (Oxford University Press 1996); see also Rosenfeld, supra note 17, at 889.
19 Bollinger, supra note 16, at 4.
20 On the classic marketplace of ideas theory, its judicial application and its limits, see C.
EDWIN BAKER, HUMAN LIBERTY AND FREEDOM OF SPEECH (Oxford University Press 1989). On
the “clear and present danger” test, notably developed by judges Holmes and Brandeis, as a
limitation of free speech in the American constitutional case law, see id. at 8. See also DWOR-
KIN, supra note 18, at 198; MICHAEL KENT CURTIS, FREE SPEECH, THE PEOPLE’S DARLING PRIV-
ILEGE: STRUGGLES FOR FREEDOM OF EXPRESSION IN AMERICAN HISTORY 389, 428 (Duke
University Press 2000); Schenk v. United States, 249 U.S. 47 (1919). Let us recall Judge Holmes’
famous metaphor:
The most stringent protection of free speech would not protect a man from falsely
shouting fire in a theater and causing a panic . . . . The question in every case is
whether the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and degree.
Id. at 52. On the necessity to revise the American conception of freedom of speech and move it
closer to international standards, see Boyle, supra note 10, at 501–02; MICHEL ROSENFELD, JUST
INTERPRETATIONS: LAW BETWEEN ETHICS AND POLITICS 187 (University of California Press
1998); see also Rosenfeld, supra note 17, 893–94.
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21 Contrary to what Robert Kahn states. KAHN, supra note 15, at 111.
22 For developments see Garibian, supra note 11, at 224.
23 Michel Troper, La Loi Gayssot et la Constitution, 1253 ANNALES HSS 54 (1999).
24 On denial as the result of a mix-up between history and politics, see PAROLES À LA
and Free Speech: The Case of the Armenian Genocide, in LOOKING BACKWARD, MOVING FOR-
WARD: CONFRONTING THE ARMENIAN GENOCIDE 236 (Richard G. Hovannisian ed., Transaction
Publishers 2003). See also MARC NICHANIAN, LA PERVERSION HISTORIOGRAPHIQUE. UNE RÉ-
FLEXION ARMÉNIENNE 105 (Lignes 2006) (discussing the Carlo Ginzburg / Hayden White contro-
versy over the concept of “historical truth”).
26 See, e.g., Roger W. Smith, Eric Markusen & Robert Jay Lifton, Professional Ethics and the
Denial of the Armenian Genocide, HOLOCAUST AND GENOCIDE STUDIES 1–22 (Spring 1995);
Yves Ternon, Freedom and Responsibility of the Historian: The ‘Lewis Affair,’ in, REMEM-
BRANCE AND DENIAL: THE CASE OF THE ARMENIAN GENOCIDE 237–248 (Richard G. Hovanni-
sian ed., Wayne State University Press 1999). Denis Salas talks about the necessity to maintain a
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The key element here is the idea of responsibility one has when
questioning the reality of a crime of genocide whose specificity, just
like that of denial, is determined by the intention that motivates the
act.27 Actually, the major and significant difference between geno-
cide denial and other limitations of free speech lies in the require-
ment of a mal intent or bad faith to be proven by the accusor (in
case of negationism), whereas in the case of defamation or insult
bad faith or mal intent are presumed (here, the plaintiff is favored
but the defendant is given the right to prove either his good faith or
the veracity of the litigious statements). This burden of proof that
rests with the accusor is a deciding factor in so far as it has three
main advantages: first, it constitutes a strong and heavy require-
ment, thus considerably narrowing the prohibition’s scope in gen-
eral, and preserving academic freedom in particular;28 second, it
permits to avoid the perverse effects ensued from other offences
which consist in offering deniers a “golden opportunity to present
their views to a wider audience,”29 or legitimating denial by creat-
ing a “debate that is no debate and an argument that is no argu-
ment;”30 third, it does not allow judges to examine the veracity of
related to the problem of free speech restrictions, an interesting parallel can be drawn with
Dworkin’s lines:
Intentional harm is generally graver than non intentional harm; as Oliver Wendell
Holmes once said, even a dog knows the difference between being kicked and being
stumbled over. But the distinction is important now . . . because though intentional
insult is not covered by academic freedom, negligent insult must be.
Id. The author then recalls the issues raised by the adoption of speech codes in some American
Universities. He notes that the one adopted by the University of Michigan was held unconstitu-
tional, precisely because it didn’t provide for any requirement of intention. Id. at 256–257. For
developments on speech codes/academic freedom/free speech in the United States, and on the
“general and uncompromising responsibility” professors and scholars have, Cf. id. at 244. See
also Theriault, supra note 25, at 249 (discussing the Aristotelian distinction between voluntary
and involuntary acts); Kahn, supra note 15, at 119 (discussing the “dilemma of toleration” and
the question whether a society can combine formal toleration and informal censorship, such as
speech codes).
28 Robert Kahn points out rightly that “as an instrument of censorship [the Gayssot Law]
failed.” Kahn, supra note 15, at 117; but the author surprisingly uses this observation as an
argument opposing the Law, whereas it can be seen as a further argument supporting it.
29 Id. at 5.
30 DEBORAH LIPSTADT, DENYING THE HOLOCAUST: THE GROWING ASSAULT ON TRUTH
AND MEMORY vii-viii (Free Press 1993). On this account, the Irving v. Lipstadt British case is
exceptional: the denier, David Irving, filed suit against the historian Deborah Lipstadt (who
called him a “Holocaust denier” in her book Denying the Holocaust) claiming that she libeled
him, thus giving her the chance, as a defendant, to prove her words right and blast Irving’s
methods, motives and conclusions. Id. Cf. DEBORAH LIPSTADT, HISTORY ON TRIAL: MY DAY IN
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the denier’s affirmations, and does not stop historians from doing
their work.
The dangerous and harmful character of denial in a democracy
is the second key element: genocide denial falls under the law inso-
far as it constitutes a violation of the law and order (through the
expression of heinous, racist or anti-Semitic propagandist dis-
course),31 of which the right to the respect of human dignity is, in
France, an essential component.32 Human dignity as well as solidar-
ity and equality between human beings – is ravaged by the execu-
tion of genocide; and yet again by its denial. Indeed, the raison
d’être of a specific legal answer to negationism can be found in the
significance of genocide denial.
COURT WITH DAVID IRVING (Harper Collins 2005). Be it noted that Irving filed suit against
Lipstadt “in the name of freedom of speech”; nevertheless, the Court refused to consider Holo-
caust denial protected free speech, even though the British conception of freedom of expression
is close to the American one. Id.
31 TROPER, supra note 23, at 1248.
32 Cne de Morsang-sur-Orge and Ville d’Aix-en-Provence, decisions of the Council of State
(Conseil d’Etat), October 27, 1995. In France, the right to the respect of human dignity is a
constitutional principle (DECISIONS N° 94-343-344 DC OF THE Conseil constitutionnel, July 27
1994). Since 2000, it has been often used by regular courts, as well as by both the Civil and
Criminal Division of the final Court of Appeal [Cour de cassation], as a limitation of free speech.
For a recent and precise study on the principle of the respect of human dignity in the French law,
see Sandrine Cursoux-Bruyère, Le principe constitutionnel de sauvegarde de la dignité de la per-
sonne humaine, REVUE DE LA RECHERCHE JURIDIQUE. DROIT PROSPECTIF 1377-1423 (2005).
33 Salas, supra note 24, at 38–39.
34 Israel W. Charny, A Contribution to the Psychology of Denial of Genocide, J. OF ARME-
TRANSMISSION 89 (L’Harmattan 1994); Catherine Coquio, Génocide: Une Vérité sans Autorité.
La Négation, la Preuve et le Témoignage, in REVUE DE L’ARAPS 163 (Association Rencontres
Anthropologie Psychanalyse 1999); YVES TERNON, DU NÉGATIONNISME. MÉMOIRE ET TABOU 14
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join the initial perpetrators by reviving the overall injury that the
genocide represents,”39 keeping the survivors and their descend-
ants in shame,40 with no access to closure,41 and drowning them in
a destructive confusion between the roles of victim and
executioner.
No legal action can be properly understood unless denial is
taken seriously for what it is, and for its immediate as well as long
term effects on both the individual and the collective level. Be-
cause of its meaning and implications, genocide denial ought to be
specifically addressed by the law. After all, the best summary and
clearest expression of the signifiance of negationism in a demo-
cratic society can be found in the case law of the European Court
of Human Rights, which considers denial to be an “abuse of law”
prohibited at article 17 of the 1950 European Convention.42 Ac-
cording to this article, no one may use the rights guaranteed by the
Convention in a way aiming “at the destruction of any of the rights
and freedoms set forth herein.”43 Hence freedom of speech can not
be used to engage in genocide denial; in other words, freedom of
speech should not be used as a “sword,” rather as a “shield.”44
bienvenue de la Cour européenne des droits de l’homme face au négationnisme. Obs. s/ la décision
du 24 juin 2003, Garaudy c. France, in REVUE TRIMESTRIELLE DES DROITS DE L’HOMME 653-662
(2004); Damien Roets, Epilogue européen dans l’affaire Garaudy: les droits de l’homme à
l’épreuve du négationnisme, DALLOZ, 240–44 (2004).
43 Article 17 of the 1950 European Convention of Human Rights states: “Nothing in this
Convention may be interpreted as implying for any State, group or person any right to engage in
any activity or perform any act aimed at the destruction of any of the rights and freedoms set
forth herein or at their limitation to a greater extend than is provided for in the Convention”
(the 1948 Universal Declaration of Human Rights and the 1966 International Covenant on Civil
and Political Rights contain a similar clause, respectively at articles 30 and 5). For an analysis of
Article 17 of the European Convention of Human Rights and the concept of “abuse of law,” see
Alphonse Spielmann, La CEDH et l’abus de droit, in MÉLANGES PETTITI 673–686 (Bruylant
1998); see also Sébastien Van Drooghenbroeck, L’article 17 de la Convention Européenne des
Droits de L’homme Est-il Indispensable?, in REVUE TRIMESTRIELLE DES DROITS DE L’HOMME
541-66.
44 DEBORAH LIPSTADT, DENYING THE HOLOCAUST (Penguin 1994).
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45 On the familiar “slippery slope” argument offered by opponents of anti-denial laws, who
see the penalization of genocide denial as being censorship, and censorship as being the first step
toward tyranny: cf. KAHN, supra note 15; THERIAULT, supra note 25, at 251. More generally, on
“slippery slope” arguments, see RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING OF
THE AMERICAN CONSTITUTION 204 (Oxford 1996). Henry Theriault considers this objection as
being met by a slippery slope argument in the reverse direction: “permitting genocide denial
despite the damage it does not only reinforces deniers in their destructive activities but also
opens an ethical loophole that will potentioally allow a range of harms, including violence, in
various circumstances. At the extreme, successful genocide denial begets genocide.”
THEIRIAULT, supra note 25, at 251.
46 Roger W. Smith, The Significance of the Armenian Genocide after Ninety Years, 1 GENO-