Newropeans Magazine
June 10 2005

Turkey legalizes the Denial of the Armenian Genocide - 5th Part -

Written by Houry Mayissian
Friday, 10 June 2005

90 years have passed since Ottoman Turkey committed genocide against
its Christian Armenian subjects in 1915. Although several parliaments
have recognized the Armenian Genocide and many historians have
established that it is a historical fact, the Turkish government
still refuses to acknowledge it. It has, in the past 90 years,
implemented several methods to deny the genocide ever happened. The
latest of these measures was the recent criminalization of the
acknowledgement of the Armenian Genocide in the new Turkish Penal
Code, which took effect on June 1.

The Clear and Present Danger test, as it is called, was first
proposed in 1919 by Justice Oliver Wendell Holmes Jr. in his
interpretations of the First Amendment of the United States'
Constitution (1). In order to determine whether the speech at hand is
constitutional, `the Clear and Present Danger test asked not whether
the words had a bad tendency but rather `whether the words used are
used in such circumstances and are of such a nature as to create
clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent'' (1)

Advocates of this theory of freedom of expression believe that it is
`the best available judicial test for striking a proper balance
between protection of the marketplace of ideas and the need to
protect the national security and the publics order.'(2) The
opponents to this theory, on the other hand, argue that the test is
`open to widely varying interpretations' and provides `little or no
protection to radical speech in times of political stress' (2). While
this argument makes a logical point, I personally believe, that if
exercised with care, the above test would be efficient in both
securing freedom of expression to the citizens of a country and
protecting its national security, especially in times of war.

Although the Clear and Present Danger test is an interpretation of
the First Amendment of the US Constitution, it can be applied to
other countries as a means of regulating government intervention in
the right to freedom of expression. Furthermore, using this test in
the case of article 305 is appropriate, because the article itself is
based on the need to protect `fundamental national interests'. Thus,
based on this concept, article 305 would have been justifiable if
recognition of the Armenian Genocide truly constituted a `clear and
present danger' for Turkey. Not only the recognition of the Armenian
Genocide constitutes no such danger to Turkey, its denial threatens
one of the country's basic national interests as announced by Turkey
itself: its membership to the European Union. Recent developments
show that the recognition of the Armenian Genocide by Turkey will be
one of the issues on the agenda of accession talks. In fact, French
Foreign Minister Michel Barnier told the French RTL radio in December
that France will include the issue of the Armenian Genocide in the
accession talks that are due to start with Turkey in October 2005
(3). Barnier repeated his statement on a number of different
occasion, the latest being in May (4). Similar statements by other EU
officials and member countries indicate that denial of the Armenian
Genocide might in fact become a headache, causing more danger to
Turkey, than its recognition.

In conclusion, the adoption of article 305 of the Turkish Penal Code
has no justification; the argument that recognition of the Armenian
Genocide is a threat against national interests has no basis. In
addition, the article contains serious shortcomings that might lead
to its abuse by the government. The article has been criticized by
the European Parliament and Commission, as well as a number of
non-governmental organizations and has been regarded as an
infringement on freedom of expression. The article is not the only
attempt by the Turkish Government to deny the Armenian Genocide, but
its significance lies in the fact that it legalizes this denial.
Finally, the article violates the European Convention for the
Protection of Human Rights, a document Turkey has ratified and is
obliged to respect. For all the above reasons, the explanatory report
citing the Armenian Genocide example (this paper has not dealt with
the Cyprus issue) should be deleted.

(1) Kersch, K. I. (2003). Freedom Of Speech: Rights and Liberties
Under The Law. California: ABC-CLIO(2) Cohen, J. & Gleason, T. W.
(1990). Social Research in Communication And Law. California: Sage

(3) France to Include `Armenian Genocide' in Turkey's EU bid talks:
FM. Retrieved 19-01-2005.