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Judgments on Genocide from the European Court of Human Rights

In the space of less than a week, the Grand Chamber of the European Court of Human Rights issued two lengthy judgments relating to the crime of genocide. The 17-judge Grand Chamber is the most authoritative formation of the European Court, and in recent years the Court has found itself compelled to address a range of issues relating to the prevention and punishment of international crimes.

In Perinçek v. Switzerland, the applicant, a Turkish extremist, had provoked prosecution under Switzerland’s genocide denial legislation by contesting the label that is given to the 1915 massacres of a million Armenians in the Ottoman Empire. He claimed this violated his right to freedom of expression, enshrined in article 10 of the European Convention of Human Rights.

Perinçek had already been successful before the seven-judge Chamber, but, pressed by Armenian organizations unhappy with the initial ruling, Switzerland applied for leave to have the case revisited by the Grand Chamber.

That was probably a mistake.

Not only is the ruling by the Grand Chamber more authoritative, it also clarifies matters in the first ruling that it would have been better to leave ambiguous.

The Grand Chamber majority declined to take a position on whether or not the 1915 massacres should be described as genocide. If there was any doubt about the point, the dissenting judges hammered this home. By insisting upon using the term in the eloquent introduction to their minority opinion, they highlighted the silence of the majority on the point.

The Grand Chamber essentially condemned all legislation criminalizing the negation of historical truth, giving free speech free reign. (The Holocaust is the only exception, it said, because its denial, “even if dressed up as impartial historical research, must invariably be seen as connoting an antidemocratic ideology and anti-Semitism.”)

Speaking of the “time factor,” the Grand Chamber took the view that as the years pass, the anger and outrage of victim groups, and their entitlement to special consideration, diminishes. This is in line with other recent rulings of the Court, notably its rejection in 2013 of an application by Polish survivors of the Katyn massacre of 1940 (Janowiec et al. v. Russia).

The second of the Grand Chamber judgments, Vasiliauskas v. Lithuania, concerned the killing of anti-Soviet insurgents in the early 1950s. A former KGB agent, Vasiliauskas was convicted in 2004 for the crime of genocide of political groups; however this was based on laws passed in the 1990s. He applied to the ECHR, claiming his crimes only became “criminal” 40 years after they were committed, invoking the “principle of legality” set out in article 7 of the Convention.

Modern genocide legislation generally speaks of destruction of a “national, ethnical, racial or religious group.” But some States have opted to add other groups to the list, including political groups.

The Vasiliauskas case hinged on the definition of the crime in the 1948 Genocide Convention. Modern genocide legislation generally speaks of destruction of a “national, ethnical, racial or religious group.” But some States have opted to add other groups to the list, including political groups. This raises no legal problem unless, of course, the legislation is applied retroactively.

The United Nations General Assembly, in a 1946 resolution, recognized that political groups were protected by the international criminalization of genocide. But when it adopted the text of the Genocide Human Rights Convention two years later its members voted to exclude political groups. Although the intentional physical destruction of political groups was not included in the Convention definition, it can hardly be claimed that they had intended to deem this to be innocent conduct, undeserving of prosecution.

The applicants in both cases were successful, but by the narrowest of majorities. In the Perinçek case, the vote was 10 to 7. In Vasiliauskas, the margin of victory was as thin as it can be: 9 votes to 8. The dissenters in Vasiliauskas seemed a lot angrier than those in Perinçek. One of them spoke of “this miserable judgment.” Another described the majority ruling as “lamentable.” There is inevitably much discontent about both judgments, as they deal with issues of great political sensitivity.

Judgments like these, where the judges are so bitterly divided, highlight the difficulty and complexity of the issues being considered but leave us with little certainty about how similar cases will be resolved in the future.

Featured image: European Court of Human Rights. Photo by James Russell. CC BY 2.0 via Flickr.

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