Law of Denial
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Law’s claim of mastery over past political violence is frequently undermined by reversals of that relationship of mastery, so that the violence of the law, and especially its symbolic violence, becomes easily incorporated into longues durées of political violence, rather than mastering them, settling them, or providing closure. Doing justice to the past, therefore, requires a political and theoretical attunement to the ways in which law, in purportedly attempting to address past political violence, inscribes itself into contemporary contexts of violence. While this may be limited to an analysis of how law is an effect of and affects the political, theoretically this attunement can be further refined by means of a critique of dynamics that are internal to law itself and that have to do with how law understands its own historicity, as well as its relationship to history and historiography. This article aims to pursue such a critique, taking as its immediate focus the ECHR case of Perinçek v Switzerland, with occasional forays into debates around the criminalisation of Armenian genocide denialism in France. The Perinçek case concerned Switzerland’s criminalisation of the denial of the Armenian genocide, and concluded in 2015 after producing two judgments, first by the Second Chamber, and then by the Grand Chamber of the ECHR. However, although they both found for the applicant, the two benches had very different lines of reasoning, and notably different conceptions regarding the relationship between law and history. I proceed by tracing the shifting status of ‘history’ and ‘historians’ in these two judgments, and paying attention to the deferrals, disclaimers and ellipses that structure law’s relation to history. This close reading offers the opportunity for a critical reappraisal of the relationship between law, denial and violence: I propose that the symbolic violence of the law operative in memory laws is a product of that which remains unresolved in law’s understanding of historicity (including its own), its self-understanding vis-à-vis the task of historiography, and its inability to respond to historical violence without inscribing itself into a history of violence, a process regarding which it remains in denial.
KeywordsArmenian genocide Denialism Memory laws Perinçek v Switzerland
- Aydın, Suavi. 1998. ‘Milli Demokratik Devrim’den ‘Ulusal Sol’a Türk solunda özgücü eğilim. Toplum ve Bilim 78: 59–91.Google Scholar
- Belavusau, Uladzislau, and Aleksandra Gliszczyńska-Grabias (eds.). 2017. Law and memory: Towards legal governance of history. Cambridge: Cambridge University Press.Google Scholar
- Birikim. 1997. Geçmişin ‘Aydınlık’ından dersler. Birikim 98: 19–30.Google Scholar
- Brown, Wendy. 1995. States of injury: Power and freedom in late modernity. Princeton: Princeton University Press.Google Scholar
- Charny, Israel W. 1991. The psychology of denial of known genocides. In Genocide: A critical bibliographic review, vol. 2, ed. Israel W. Charny, 3–37. London: Mansell.Google Scholar
- Christodoulidis, Emilios. 2001. Law’s immemorial. In Lethe’s law: Justice, law, and ethics in reconciliation, ed. Emilios Christodoulidis and Scott Veitch, 207–227. Oxford: Hart.Google Scholar
- Cohen, Stanley. 2001. States of denial: Knowing about atrocities and suffering. Cambridge: Polity Press.Google Scholar
- Dadrian, Vahakn N., and Taner Akçam. 2011. Judgment at Istanbul: The Armenian Genocide trials. New York: Berghahn.Google Scholar
- Derrida, Jacques. 2002. Declarations of independence. In Negotiations: Interventions and interviews, 1971–2001, trans. Tom Keenan and Tom Pepper, 46–54. Stanford: Stanford University Press.Google Scholar
- Eğrikar, Özge. 2010. ‘Milli Menfaat’ten AİHM’ye Gidiyor’, Hürriyet, 20 January. http://www.hurriyet.com.tr/milli-menfaat-ten-aihm-ye-gidiyor-28004890. Accessed 29 November 2018.
- El-Enany, Nadine, and Sarah Keenan. 2015. ‘I am Charlie and I guard the master’s house’. Critical Legal Thinking, 13 January 2015. http://criticallegalthinking.com/2015/01/13/charlie-guard-masters-house/. Accessed 25 July 2018.
- Göçek, Fatma Müge. 2015. Denial of violence. Oxford: Oxford University Press.Google Scholar
- Hennebel, Ludovic, and Thomas Hochmann (eds.). 2011. Genocide denials and the law. Oxford: Oxford University Press.Google Scholar
- Hovannisian, Richard G. 1984. Genocide and denial: The Armenian case. In Toward the understanding and prevention of genocide: Proceedings of the International Conference on the Holocaust and Genocide, ed. Israel W. Charny, 84. Boulder: Westview Press.Google Scholar
- Hovannisian, Richard G. 1998. Denial of the Armenian Genocide in comparison with Holocaust denial. In Remembrance and denial: The case of the Armenian Genocide, ed. R. Hovannisian, 201–236. Detroit: Wayne State University Press.Google Scholar
- Hürriyet. 2016. ‘Ermeni Patriği: Fransızlar diyaloğu sabote ettiler’, 13 October. http://www.hurriyet.com.tr/gundem/ermeni-patrigi-fransizlar-diyalogu-sabote-ettiler-5251443. Accessed 8 July 2018.
- Lyotard, Jean-François. 1988. The differend: Phrases in dispute, trans. Georges van Den Abbeeele. Minneapolis: University of Minnesota.Google Scholar
- Mamdani, Mahmood. 2006. The political uses of free speech. Outlook, 14 February 2006. https://www.outlookindia.com/website/story/the-political-uses-of-free-speech/230211. Accessed 25 July 2018.
- Mehlman, Jeffrey. 1992. Foreword. In Assassins of memory: Essays on the denial of the Holocaust, ed. Pierre Vidal-Naquet, ix–xxi. New York: Columbia University Press.Google Scholar
- Milliyet. 2006. ‘Fransa’da “soykırım yapılmadı” derim’. 9 October. http://www.milliyet.com.tr/fransa-da–soykirim–yapilmadi–derim/siyaset/haberdetayarsiv/09.10.2006/173613/default.htm. Accessed 25 July 2018.
- Nichanian, Marc. 1999. The truth of the facts. In Remembrance and denial: The case of the Armenian Genocide, ed. Richard G. Hovannisian, 249–270. Detroit: Wayne State University Press.Google Scholar
- Nichanian, Marc. 2009. The historiographic perversion. Trans. Gil Anijdar. New York: Columbia University Press.Google Scholar
- Sands, Philippe. 2016. East-West Street: On the origins of genocide and crimes against humanity. London: Weidenfeld & Nicolson.Google Scholar
- Vidal-Naquet, Pierre. 1992. Assassins of memory: Essays on the denial of the Holocaust. Trans. Jeffrey Mehlman. New York: Columbia University Press.Google Scholar
- Wallerstein, Immanuel. 2006. European universalism: The rhetoric of power. New York: New Press.Google Scholar
- Zileli, Gün. 2015. 41 yıl önceki TİİKP ve bugünkü VP. 14 May 2015 http://www.gunzileli.com/2015/05/15/41-yil-onceki-tiikp-ve-bugunku-vp/. Accessed 25 July 2018.
- Constitutional Council (France) Decision no. 2012-647 DC of 28 February 2012.Google Scholar
- Constitutional Council (France) Decision no. 2015-512 QPC of 8 January 2016.Google Scholar
- Constitutional Council (France) Decision no. 2016-745 DC of 26 January 2017.Google Scholar
- Chauvy v France. 2004. European Court of Human Rights. Application no. 64915/01. Judgment 29 June 2004.Google Scholar
- Dink v Turkey. 2010. European Court of Human Rights. Application no. 2668/07. Judgment 14 September 2010.Google Scholar
- Ergenekon Case (Turkey) Detailed Judgment. 2014. Istanbul 13th High Criminal Court. Case no: 2009/191. Judgment no: 2013/95.Google Scholar
- Fatallayev v Azerbaijan. 2010. European Court of Human Rights. Application no. 40984/07. Judgment 22 April 2010.Google Scholar
- Lewis Case (France) High Court of Paris. 21 June 1995: Juris-Data no. 044058.Google Scholar
- Lehideux and Isorni v France. 1998. European Court of Human Rights. Application no. 24662/94. Judgment 23 August 1998.Google Scholar
- Perinçek v Switzerland. 2013. European Court of Human Rights. Application no. 27510/08. Chamber Judgment 17 December 2013.Google Scholar
- Perinçek v Switzerland. 2015. European Court of Human Rights. Application no. 27510/08. Webcast of Grand Chamber Hearing. 28 January 2015. https://www.echr.coe.int/Pages/home.aspx?p=hearings&w=2751008_28012015&language=lang&c=&py=2015. Accessed 25 July 2018.
- Perinçek v Switzerland. 2015 [GC]. European Court of Human Rights. Application no. 27510/08. Grand Chamber Judgment 15 October 2015.Google Scholar