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

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

    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.

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