Freedom of expression still severely restricted
Bindman, the chairman of the board of trustees at the British Institute of Human Rights, added that even though Turkish Penal Code (TCK) Article 301, which was considered one of the main obstacles to freedom of expression, was amended last year by Parliament, the changes were not regarded as sufficient.
"Other articles in the criminal code may also impose restrictions on free expression in Turkey. If Turkey is to join the European Union, which I personally would welcome, it seems that a substantial review of laws restricting freedom of expression is still needed," he said.
Among the various debates triggered by the 2007 killing of Dink was the issue of freedom of expression. Another discussion was in regards to tragedies that took place in 1915-22. Dink had argued that the time had come for Armenians to step back from insisting that Turkey recognize the Armenian killings of the Ottoman era as "genocide" as this had become an "unhealthy fixation." He had said today's Turks should not be punished for the sins of their forefathers 90 years ago. Dink followed this idea through to the point of criticizing laws in countries such as France and Switzerland that penalize people who deny that Armenians suffered "genocide.”
For Monday Talk, Sir Geoffrey elaborated on some of those issues.
Hrant Dink was prosecuted because he said there were "genocide" crimes in the past against Turkey's Armenians. On the other hand, when the French parliament was supporting a law making the denial of genocide a crime, Dink argued that he would say in France that there were no crimes of "genocide" against Turkey's Armenians. This is an example reflecting his philosophy on the freedom of expression issue. What do you think about it?
I've been careful not to make comments on precise statements by Hrant Dink because my interest is looking in principle at the issue of freedom of expression. What I understood he did, which was to discuss or comment on this issue of genocide in 1915, was a legitimate subject. It is not a crime in Britain to claim that there was an event some time ago which affected people who are no longer alive. So I don't see why there needs to be such a law. I know that there is a law in France and Germany which makes it a crime to deny the European Holocaust in the 1940s.
What was the logic behind that law?
It's easy to understand why such a law was passed because they are relatively recent events, and people who have been victims of the Holocaust are still alive. The denial of what they claim to suffer is so damaging, so it justifies a criminal law. In practice those laws are hardly being enforced. There have been very few cases. It was a question whether we should have such a law in Britain, and it was rejected. I would be very skeptical about having such a law.
Could you explain why?
Because freedom of speech and freedom of expression should prevail unless there is a very strong reason to restrict it. I don't think the discussion of an issue that took place 100 years ago would justify restricting freedom of expression. Freedom of expression must be cherished and protected -- where necessary by legal safeguards. This is the common consensus of the nations of the world, developed over many centuries. The great English poet John Milton said in the year 1644: "Give me the liberty to know, to utter, and to argue freely according to conscience above all other liberties."
Do you think the Dink trial is going to be a test for the Turkish judiciary?
The murder of Hrant Dink occurred two years ago. The trial of those accused of this atrocity is not concluded. Although I have been a practitioner and teacher of law for nearly 50 years -- and indeed I have been a criminal lawyer -- I do not intend to comment on a case still in progress in the Turkish courts. More relevant is the extent to which the law in Turkey complies with international standards. The murder is a particularly vicious attack on the right to freedom of expression, but my concern is to focus on the role of government and the law in protecting the liberty of the citizen to exercise his or her right to freedom of expression.
As you know, Article 301 of the TCK was amended by Parliament in April of last year. The controversial article was famous for its application against Hrant Dink and many other journalists and writers. Do you think the amended Article 301 is more compatible with the European Convention on Human Rights?
It is not clear that the amendment which was made, which has been translated into English as replacing "insulting Turkish identity" with "insulting the Turkish nation," has made this law more compatible with Article 10 of the human rights convention. It is true that the law has been made less severe in other ways: The maximum prison sentence for breach has been reduced from three years to two, and trials will mostly take place before magistrates' courts instead of criminal courts. The European Parliament has criticized this new provision and has called for its repeal. Nevertheless it appears from various reports that other articles in the criminal code may also impose restrictions on free expression in Turkey. If Turkey is to join the European Union, which I personally would welcome, it seems that a substantial review of laws restricting freedom of expression is still needed.
What would you say about Britain's historic struggle for ensuring civil liberties and human rights?
The history of civil liberties and human rights in England has proved of universal importance because the international human rights movement, developed through the United Nations, relied very heavily on English precedents. The republican poet John Milton in 1644 published his famous speech entitled Areopagitica. His great speech was prompted by a new law introduced in England by the government of King Charles, the first extending the censorship of books. Licensing of publications having long ended, the laws against sedition or treason were the main weapons available to the government in 18th century Britain. In 1794 the leaders of the movement demanding annual parliaments and universal suffrage were put on trial for treason.
How had it been handled?
It was the democratic element in the British legal system that rescued them: the jury of ordinary people. Prosecutions on serious criminal charges were not decided by judges appointed by the government but by a jury of 12 citizens randomly selected from all householders. The prosecution failed: The jury found all those accused not guilty of treason. Until the year 2000 there had never been a general law in Britain which declared a right to freedom of expression. Britain never had a written constitution or a code of law. The law had developed in a piecemeal fashion, composed of statutes passed by parliament and the common law, made up of the rulings of judges accumulating over time. It always used to be said that in Britain a citizen was permitted to do anything which the law did not expressly forbid. Today, Britain is, like Turkey, a party to the European Convention on Human Rights, in particular Article 10, regarding the freedom of expression. In the year 2000, the British parliament brought into force a Human Rights Act with the purpose of enabling the British courts to adjudicate on violations of the convention.
'Addressing past human rights abuses has difficulties'
It's been argued that "transitional justice" may provide opportunities for societies to address past human rights abuses or other forms of severe trauma in order to facilitate reconciliation in the society. The topic has not yet been publicly discussed in Turkey, but it may relate to issues such as past abuses the country's Kurdish citizens and minorities like the Armenians faced. Do you think the tools of "transitional justice" may provide guidance for states to address past wrongs?
The problem with an issue which has happened a long time ago is, when it comes to compensation, how you can identify the people to be compensated. All the people directly affected are dead. Do you trace their descendants and pay them? First of all, it is very difficult and expensive to do. If you simply allow people to come forward, then they have to prove their relationship; it can be immensely complicated. There can be vast numbers of people. Would it repair the damage that was done in the past? Clearly not. You can compensate people for the wrongs that happened in recent times, but you have to draw a line. The law does draw a line. Certainly in Britain. If you have a case that somebody has caused you damage, you have to bring it within a limited period.
Could there be any other forms of compensation, other than material reparation, for the sufferers of such abuses?
Apart from the compensation, that is another issue which presents difficulties. How do you identify who is responsible? You cannot bring those people to life again and have them apologize. There is a case for truth and reconciliation commissions in countries where there has been a bad history of repression and human rights abuses. That has occurred in places like Chile and South Africa where those who have been responsible for crimes under the authority of the government have been invited to confess before a commission and then the victims have felt some kind of being able to receive satisfaction. Regarding the events of 1915, none of those involved perpetrators are alive. You could set up a commission to examine the issue and perhaps attempt to reach a conclusion as to who is responsible. There can be some type of public recognition that a wrong has been done. That's probably the best you can do.
'Israel's bombardment war crime'
Together with more than 20 international intellectuals you signed a statement saying Israel's Gaza bombardment is not self-defense but rather a war crime. Have you been able to convince the necessary authorities to hold Israel responsible for that?
Not at this stage. The British government has condemned the attacks, but there is no ruling of any court as to whether there has been a war crime, and if there were to be a ruling, it would be in a long time in the future. Some people are convinced and some others aren't. I'm strongly convinced that the Israeli attacks are disproportional. The rockets fired from Gaza are very few, and they seem to cause very little damage. The Israeli government has committed war crimes because they have an obligation in international law to protect civilian populations even if they are justified in attacking another country in self-defense.
Why do you think the international community is so silent then? Do they want to wipe out the Palestinians by using Israel?
There is a big Israeli lobby in the United States of two kinds. There is a Jewish lobby in the United States which supports Israel. There is also a fundamentalist Christian lobby that supports Israel in the United States. That has a big influence on the US government.
What about the United Nations?
It's been greatly weakened by the failure of the United States to support it. I hope that will change when President [elect Barack] Obama gets into office.
Is there a chance that an international war crimes tribunal may be established against Israel?
The power of the international legal institutions is very limited. For example, the International Criminal Court, which does have jurisdiction to prosecute war crimes, can only do so in relation to states that have signed up to it -- that doesn't include Israel, Israel has not signed up to it -- unless the UN Security Council refers the situation to it and invites it to act as in the case of Darfur. Whether this will happen in the case of Israel is doubtful because the United States would probably not support such an action.
What about the European Union?
It can establish its own tribunals, but the EU cannot create international law. International law is created through the United Nations or through the development of customary law, through case law.
Profile
Sir Geoffrey Bindman :
A legal consultant, writer and broadcaster in civil liberties and human rights, media law, defamation and anti-discrimination law, he is the chairman of the board of trustees at the British Institute of Human Rights. He began practicing as a solicitor in London in 1960. He founded Bindman & Partners in 1974, and throughout his distinguished career, has specialized in civil liberty and human rights issues.
He was a legal adviser to the Race Relations Board from 1965 to 1976 and thereafter to the Commission for Racial Equality until 1983. He has represented the International Commission of Jurists, the International Bar Association, Amnesty International and other bodies in human rights missions in countries including the former Soviet Union, Germany, South Africa, Chile, Uganda, Namibia, Malaysia, Israel and the Occupied Palestinian Territories and Northern Ireland.
In 1999 he received the Liberty and Law Society's Gazette award for lifetime human rights achievement and in 2003 the Gazette Centenary award for human rights. Sir Geoffrey has lectured at law schools in Britain, the US and other countries, and is currently a visiting professor of law at University College London and London South Bank University.
* This article was taken from www.todayszaman.com. Some sub-headings were added.
