Payam Akhavan is a Professor of International Law at McGill University in Montreal, , and a Visiting Fellow at Oxford University. He was previously a UN prosecutor at The Hague and has served as counsel in leading cases before international courts and tribunals. He spoke to CivilNet about his representation of a Coalition of Armenian and Turkish NGOs that have intervened in the Perincek case, which will be heard by the Grand Chamber of the European Court of Human Rights in Strasbourg on January 28th. Dogu Perincek, an ultra-nationalist Turkish politician and member of the Talat Pasha Committee, had been convicted in Switzerland for incitement to discrimination for having called the Armenian Genocide an “international lie”. Before the European Court, he succeeded in arguing that his freedom of expression had been violated, and that he was not promoting hatred, because he was only questioning the legal classification of the events of 1915, which he did not deny. After a campaign by Armenian and Turkish NGOs, the Swiss Government was persuaded to appeal the case to the Grand Chamber of the European Court, to try and reverse this flawed decision.
I was first alerted to the Perincek decision by my friends at the Zoryan Institute in Toronto. They were very concerned about this legal precedent being used by the Turkish Government as well as ultranationalist politicians to argue that the European Court denies that the events of 1915 constituted genocide. That of course is not what the Court said, but its decision was twisted and misrepresented, to reinforce the long-standing policy of denial and incitement to hatred against Armenians. Zoryan led a costly campaign to publish advertisements in Swiss newspapers in both French and German and to cooperate with other Armenian organizations to persuade Switzerland to appeal the case. They had to overcome the opposition of Turkey which of course did not want the case to be appealed. Turkey had intervened in support of Perincek even though its own courts, the Istanbul Penal Court, had convicted him of being a leading member of the Ergenekon terrorist organization! It is important that Turkish NGOs such as the Turkish Human Rights Association, the oldest and biggest human rights NGO in Turkey with thousands of members, had also written to the Swiss Government in favour of an appeal. Once Switzerland agreed to appeal the case, we decided to put together a coalition of Armenian and Turkish NGOs to intervene in the case. We thought that the composition of the coalition itself would be a powerful message to the Court that this was not an “Armenian” issue; it was a human rights issue. Perincek was not interested in academic debates on international law, and whether the term “genocide” applies to the events of 1915 or not. He is an ultranationalist politician whose platform is incitement to hatred against Armenians, based on paranoid conspiracy theories and historical revisionism. It was also imperative for the Court to know the details of the Ergenekon judgment and for this we needed qualified and dedicated Turkish lawyers and activists and translators and months of work in coordination with knowledgeable and diligent researchers at Zoryan and the lawyers in London and Oxford to go through the 17,000 pages of the decision, the international case-law, and complex arguments, to find what was most relevant to establishing the discriminatory motives of Perincek. So in the end, the coalition was Zoryan, or rather then Institute for Genocide and Human Rights Studies, which is under Zoryan’s umbrella, together with the Turkish Human Rights Association and the Truth Justice Memory Centre in Istanbul, and the combined efforts of this team, I think, had outstanding results in terms of the quality and importance of the submission, which could have significant impact on the Court’s decision, and which represents evidence that no other party has brought forward in this case. In other words, without this intervention, without this NGO coalition, the facts of the Ergenekon judgment, and Perincek’s true agenda, would not have come to light.
Is the case about the historical truth of the Armenian Genocide? What is really at issue?
We have emphasized that the case is not about the historical truth as such. From the perspective of human rights law, freedom of expression under Article 10 of the European Convention on Human Rights, is subjected to certain limitations. One of those is when speech amounts to incitement to discrimination and hatred. So debates about the historical truth or legal classification of atrocities as genocide or some other label are not the real issue. The fundamental issue is whether Perincek’s statements when considered in their proper context constitute incitement to discrimination and hatred.
What does the intervention of the coalition add that the other parties to the case have not already said? Why is it significant?
The Court did not consider the impact of Perincek’s statements on Armenians in Turkey. It may be more difficult to argue that his inflammatory statements threaten Armenians in Switzerland. But anyone that knows about the murder of Hrant Dink and the continuing cover-up in failing to punish the culprits knows that calling the Armenian Genocide “a big lie” is clearly hateful, and can even result in violence against Armenians in Turkey. The Swiss judgment against Perincek did refer to his membership of the Talat Pasha Committee, so this fact is in the record. All that we did was to provide the Grand Chamber with a fuller picture of the significance of that Committee, which of course, is also referred to by the Istanbul Penal Court in the Ergenekon judgment. Indeed, that judgment refers to Perincek as the head of “propaganda” and “psychological war”, refers to his promotion of hatred against Armenians, and further links Ergenekon with the murder of Dink and members of other Christian minorities in Turkey. Turkey’s intervention argues desperately that only what Perincek did in Switzerland is relevant; that the Court should somehow ignore who Perincek really is and why he is on this relentless campaign to deny the Armenian Genocide. Clearly, the case is not about whether international lawyers could dispute legal classification of those events as genocide, and it would be a mistake to go to Court and argue that it is a genocide as if that is the issue. The issue is whether Perincek has discriminatory motives and the answer to that question is rather obvious.
How do you contrast the intervention of this NGO coalition with that of Armenia and Turkey?
Governments are obviously important given that they are the ones that signed the European Convention that established the Court. But Governments have political interests and their perspectives are shaped by different considerations than civil society actors such as human rights NGOs. I think it is important that in this second round, Armenia has intervened, just as Turkey did in the first round, and now, in the second round. Perhaps their respective submissions will neutralize each other. But I think the Court will take notice that Armenian and Turkish human rights NGOs, that are not motivated by political interests, are joining forces to expose Perincek’s hateful and violent agenda. And I believe that the details of the Ergenekon judgment will be crucial evidence of his motivations, based on the decision of Turkey’s own courts! Finally, I think that with all the media hype and attention being given to this case, we must not forget that the real heroes are the Turkish human rights activists and intellectuals that are standing in solidarity with their fellow Armenians in Turkey, who face a life of increasing pressure and intimidation and even violence. The Turkish activists face hate mail and death threats for having stood in solidarity on the issue of the Armenian Genocide. They are courageous and righteous, and deserve our praise and recognition as one of the most important voices in the Perincek affair.