The French Parliament has adopted on the 23rd of January 2012 a bill criminalizing the negation of genocides, which have been recognized by French law, with one-year imprisonment and a 45,000 Euros fine.
France has recognized two genocides, the one perpetrated by Nazi Germany against the Jews and the one perpetrated by the Ottoman Empire against the Armenians.
This law is at the center of a political crisis between Paris and Ankara, with most of its detractors seeing it as a public relation move made with the close presidential election in mind.
More importantly though is the issue raised by former justice minister Robert Badinter who sees in this law a very bad precedent of lawmakers going outside of their mandate and usurpating the role of historians.
Indeed, in an interview given to French newspaper Le Monde, Badinter underlines the fact that this law forecloses any more discussions on the events of the Armenian genocide. He points to a very pertinent difference between the genocide perpetrated by the Nazis and the one perpetrated by the Turks in that the former was tried and established by a judicial court, the Nuremberg Tribunal.
Like Badinter, others have manifested their dissent and underlined the problem posed by such a law. Instead of favoring dialog and maybe undertaking at the international level an enquiry that would bring both side to the table; this law renders the debate moot making a positive resolution involving the parties involved unlikely.
The supporters of this legal initiative swear by the fact that this law was necessary to honor the memory of the victims and that in the absence of positive action coming form Ankara it was their duty to promote what they see as a most noble cause.
Honoring the victims of what without a doubt is one of the most hideous crime committed in the history of humanity does appear like a very grand and honorable endeavor but was it a wise one.
How to deal with past events like the Armenian genocide is at the center of the concept of transitional justice and many countries have been faced with this hard task.
Some of these countries chose alternative forms of justice to the traditional framework of criminal prosecution.
In Latin America for example different path were elected to deal with crimes committed by military dictatorships. Some chose truth commissions, others like Argentina chose to investigate and prosecute, others chose to investigate and not prosecute, privileging the need for reconciliation.
In South Africa they chose to move away from the traditional criminal model; a trade was made between full disclosure by defendants who would speak and confess in exchange of conditional amnesty.
In Rwanda they turned to Folk tribunals with neighbors judging neighbors.
In South Africa, Truth and Reconciliation Courts were created to conduct hearings. In exchange of the truth you would get conditional amnesty. It pushed perpetrators to come clean instead of hiding the truth. Without these courts they would not have been able to get this amount of information and families of victims wouldn’t have been able to heal and perhaps reconcile.
They made the choice of restorative justice against retributive justice, and some of the individuals who chose to confess that they had done disgusting things reported that the TRC were actually worst than traditional courts. Indeed, they had to confront the families of their victims in the eyes.
This was a cathartic process, which underlines an important part of transitional justice: confronting the horrors of the past is a necessary step in an effort to work together in the path of nation building. The trade of for this TRC was not criminal justice it was a political project aimed at a more promising future.
What did these TRC accomplish? Their aim was to promote reconciliation and they do not claim they achieved it but it was a move in the right direction. Families of victims had to pay a cost for them they did not get compensations for the violations they suffered and had to forgo proper criminal trials, however they did get to know the truth about their loved ones fate.
Maybe if you know the truth and confront it there is chance that it will never happen again.
If one takes into account the many different paths taken to deal with earlier atrocities one might think that the one taken by the French parliament is but one other way to heal past wounds. However it is very different, indeed France was not a party to the events in question it is but an outsider and as such does not carry the legitimacy necessary to bring proper closure. In addition by foreclosing any further discussion this law is actually counter productive and goes against the cathartic process that was central to the success of many transitional justice endeavors.
On January 31st the French Constitutional Council was seized in an effort to declare this law unconstitutional on the basis that it was contrary to the freedom of expression. On February 28th it was declared unconstitutional the council stating that it was intruding into responsibility that belongs to historians.