This is the text of a presentation that Robert Badinter made to the General Assembly of Liberté pour l’histoire on 2 June 2012.
Robert Badinter was Minister of Justice from 1981 to 1986 and President of the Constitutional Council from 1986 to 1995.

Let me say that it is a great privilege to return to the Panthéon-Sorbonne, and to the very same lecture hall where I used to enjoy teaching.

With respect to the problem that concerns us today, I am going to set out my point of view quite straightforwardly, and then present an overview of the question of the so-called historical memory laws since the decision of the Constitutional Council taken on 28 February 2012.

It is a sad state of affairs to see members of parliament, in both the National Assembly and the Senate, with their different majorities, losing their grasp of what law really is. Laws are not billboards for the display of campaign advertising. They are created to govern the polity. It may happen that laws are introduced to make financial or moral reparations for the misfortunes that have afflicted some of the communities in the polity; but we must be careful here. While the law must always have a regulatory function, it cannot be exercised except in accordance with the Constitution, and it is not possible to lead it astray in order to bind up the wounds of a particular community – itself an honourable goal, but one that can be implemented by other means.

For a variety of reasons, we have departed completely from this stipulation over the last decade, as the law has come to be seen as a kind of soothing ointment for emotional suffering. In this deviation we detect a marked tendency towards the public display of compassion, which is endemic in French society today: to appear to be concerned with the plight of victims has become a necessary posture for all politicians, male and female. I certainly thank them for their depth of feeling – being a politician does not mean being heartless – but I am not sure that practically forcing rulers or legislators to testify to their compassion for victims is a good basis for action, at least in the realm of law.

I will not repeat the history of what has happened so far and will try to restrict myself to understanding its place in the context of French law. We must start from a distinction that has emerged gradually, between the historical memory laws, typified most clearly in the law of 29 January 2001 about the Armenian genocide – “Parliament publicly acknowledges the existence of the Armenian genocide” – and the laws designed to combat revisionism in so far as it is identified as an ingredient of racism and hatred towards certain communities.

With respect to the memory laws themselves, we may recall the description given by the National Assembly’s Accoyer commission in November 2008: “Leaving aside the differences in their content, the historical memory laws seem to arise from a single desire: to ‘relate’ or describe the past in terms of contemporary legal concepts such as genocide or crime against humanity, so as in one way or another to win justice through the recognition of past suffering.” For a lawyer, I can say bluntly, this is a false move. I do not need to remind you that “crime against humanity” and “genocide” are legal terms that first appeared in the Second World War. To make use of these concepts today to describe events that occurred in Armenia a century ago or in the eighteenth-century slave trade is an error from the juridical perspective, a kind of retroactive juridical re-description. We cannot describe acts in past history in terms of legal concepts that emerged after they were committed.

We may include among the memory laws those relating to the Armenian genocide, proposed in 2001, then the Taubira law and the 2005 law on the nation’s gratitude and contribution to repatriated French citizens, whose Article 4 went so far as to insert in the school curriculum a mention of “the positive role of the French presence overseas.” Teachers’ freedom was directly threatened. This law was bound to meet with a chorus of disapproval, which is just what happened: 12 December 2005 saw publication of the famous editorial, “Liberté pour l’histoire,” signed by nineteen of our preeminent historians. (The contested Article 4 was in the end effectively rejected by being disqualified, amended, then repealed by decree in 2006.)

However, I would not give the name “memory laws” to those laws that do not “relate” history but give legal status to commemorations, such as the law of 10 July 2000 establishing a national day of remembrance of the victims of the racist and anti-Semitic crimes of the French state, and paying tribute to the Righteous among the French. It is entirely within the power of Parliament to establish days of remembrance. We may wonder if it is appropriate to do so, but that is another question. In any case, historians have nothing to say about it; it belongs in the realm of politics.

Similarly, as was stated by the National Assembly’s commission, Parliament is within its rights to “lay down standards and restrictions designed to defend the principle affirmed by the preamble to the Constitution, including the fight against racism and xenophobia.” This is what the Gayssot law is about. That law primarily targets revisionism, which in this case is simply a camouflage for anti-Semitism, incitement to racial hatred and hatred of a community, all of them offences subject to the force of criminal law. Moreover, that law does not “relate” history, but prohibits the rejection of the authority of res judicata, as determined by an international court whose authority stems from a treaty to which France is a signatory. The judgements at Nuremberg unquestionably have the authority of res judicata under French law. At Nuremberg the crimes of the extermination of the Jews were proven after a period of public debate and contestation, in an international court.

The juridical character of the Gayssot law is thus not at all the same as that of the “memory” laws, which is why the question raised about its constitutionality was invalid, and the Court of Cassation refused to forward the question to the Constitutional Council.
At the end of 2008, with the conclusions of the Accoyer commission, supported by the testimony of Pierre Nora, matters seemed to be clear and stable for the future: no more legally questionable memory laws, and a confirmation of the appropriateness and legality of laws against Holocaust denial (based on the authority of res judicata) as part of the battle against racism and xenophobia.

However, the debate started up again in the confusion over the law criminalising denial of the Armenian genocide. The Armenian community in France is deeply concerned with the issue of official recognition of the Armenian genocide. From having frequently discussed the issue with members of the community, I know how profoundly sensitive they are about the massacres of 1915. They would like to see an outright ban on denial of the Armenian genocide.

A new item of legislation was thus submitted to the National Assembly, which passed it, the political differences between the parliamentary groups having vanished for the moment. In an attempt to escape the looming rejection by the Council, the law formulated a more general ban, namely of the “contestation of genocide as defined in section 211.1 of the Criminal Code and recognised as such by French law.” This did indeed apply to the Armenian genocide, which the law’s wording was careful not to mention by name. This law was to open the way yet again to historical memory laws “recognising” genocides.

I had the opportunity to state my position within the Socialist group in the Senate and in the debate on the report of the law commission. Matters seemed clear, indeed quite clear. In the French Constitution, Parliament has a defined jurisdiction. One task of the Constitutional Council is to ensure that Parliament respects the division of powers and cannot get around the limits imposed by the Constitution through a vote. Constitutionally, the French Parliament has not been assigned the power to recognise the existence of genocide.

After more than sixty signatures from deputies and about as many more from senators had been collected, the matter was taken to the Constitutional Council. In its decision, it first made a point of restating the powers of Parliament by citing the analysis of law dean Georges Vedel: “It follows from Article 6 of the Declaration of 1789 – ‘The law is the expression of the general will’ – and from all the other norms affecting constitutional values relative to the purpose of law that, subject to the special provisions laid down in the Constitution, the law’s function is to assert rules, and it must therefore possess a normative character.” Given that legislation designed to “recognise the crime of genocide” cannot in itself possess the normative character essential to law, the Constitutional Council formally dismissed the historical memory law as such. I am convinced that that decision, based on those considerations, has put an end to the upsurge of memory laws.

In the second important statement of its decision, concerned with “freedom of expression and communication,” the Council recalled that when Parliament imposes a criminal penalty for breaking a law that asserts that such-and-such a fact is a crime against humanity, not only does it overstep the limits of its authority, it ignores the fundamental principle of freedom of expression. By outlawing “the denial of the existence of crimes that Parliament itself has recognised as such,” it is Parliament that is claiming, “These deeds are crimes”; it is not Nuremberg, it is not some judicial authority whose decisions have the authority of res judicata on French soil. In this case, it is the legislature that states, “This is a crime, and I do not permit it to be denied.” It arrogates to itself the power to define an act as criminal, in violation of the principle of an independent judiciary and the separation of powers. And what is even worse, it prescribes penalties for anyone who may doubt what it asserts. In so doing, the legislature unconstitutionally impairs the exercise of freedom of expression and communication.

Here is where things now stand: first, the historical memory law as such has been dismissed – there will be no more of them. Second, the legislature cannot arrogate to itself the power to criminalise the denial of an act after having defined that act as a crime (which is already unconstitutional). Let me repeat: this puts an end to this upsurge of proposed laws. Here is a (non-exhaustive) list of them:
- Recognition of the Ukrainian genocide of 1932-1933
- Recognition of the genocide in the Vendée
- Recognition of the genocide of the Roma during the Second World War
- Recognition by France of the suffering of French citizens in Algeria who were victims of crimes against humanity
- Recognition by France of the suffering of French citizens in Algeria due to their ethnicity, religion, or politics.

There remains the different question of the struggle against Holocaust denial and revisionism. I can only speak about this in a very personal way. Listening to Robert Faurisson is an ordeal. I had to undergo it because he stood before me on several occasions. The last time this happened I was the one in the dock: Faurisson had taken me to court for defamation. The case was dismissed. But when you are confronted directly as a secondary victim, at one remove, of genocide denial, and you hear someone say that this never happened, when your father, your grandmother, your uncle and many of your own cousins disappeared and you have never been able to find out what became of them – this is intolerable. This is why I understand the pain of the Armenians, which explains why they are so combative. These feelings are extremely strong and entirely reasonable.

Revisionism is odious. However, it is not for this reason that we must prosecute it. The European Court of Human Rights, in its 26 June 2003 judgement in the case of Roger Garaudy, in my opinion handed down the best analysis ever made of revisionism and the need to combat it: “There could be no doubt that disputing the existence of clearly established historical events, such as the Holocaust, did not constitute historical research akin to a quest for the truth. The real purpose of such a work was to rehabilitate the National-Socialist regime and, as a consequence, to accuse the victims of the Holocaust of falsifying history.” This is perfectly true. It continues: “Disputing the existence of crimes against humanity was, therefore, one of the most severe forms of racial defamation and of incitement to hatred of Jews. The denial or rewriting of this type of historical fact undermined the values on which the fight against racism and anti-Semitism was based and constituted a serious threat to public order. It was incompatible with democracy and human rights and its proponents indisputably had designs that fell into the category of prohibited aims under Article 17 of the Convention.” Revisionism is simply a front for the desire to bring the basest accusations against a community that has been the victim of these crimes against humanity, and to encourage hatred of that community. It is impossible in this context to appeal to freedom of expression.

In this regard, I think that the Framework Decision of the European Union of 28 November 2008 will in due course be adopted into French law. It has the merit of specifying that prosecution is only possible if there is present a desire to incite hatred against a group or community. It is not enough to say, “Holocaust denial is taking place.” It has to be seen what lies behind that denial. The Framework Decision opens up the possibility of an “option,” like the one exercised by the French government, stipulating that denial of crimes can be prosecuted “only if these crimes have been determined to be such by a final decision made by an international court.” This reflects both the spirit and the letter of the Gayssot law.

This is a very important point to bear in mind, because I do believe the Armenian community is going to renew its campaign, given how much the recognition of the 1915 genocide matters to it. I am convinced that the government’s response will be to adopt the text of the Framework Decision with the reservation that there must be a prior decision in place having the authority of res judicata and rendered by an international court. I am thinking of some genocides in Africa which have been defined as such through an international judgement, or the crimes against humanity committed in the former Yugoslavia which have been the subject of decisions of the International Criminal Court.

So here is where we stand: memory laws as such are over, Parliament is no longer playing at being a historian, but denial will be prosecuted whenever we can detect beneath it the desire to injure a community and incite hatred of it. The situation is thus, I would say, clear. But strong feelings have not been appeased, and we can expect new laws to be proposed, or requests made for “resolutions,” a new procedure introduced by the constitutional revision of 2008 whose scope is uncertain. All of which means that the price of Liberté pour l’histoire is eternal vigilance.

Robert Badinter