June 21, 1995

"Whereas, however, while he thus enjoys complete latitude to cast doubt, according to his own assessment, on the evidence gathered or accepted ideas, the historian, may, however, not evade the universal rule which links the legitimate exercise of a freedom to the necessary acceptance of a responsibility;"

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RP L 860
RG 4 707/94
ASS/February 14, 1994
Damages
No. 12

PARIS COURT OF FIRST INSTANCE
FIRST CHAMBER, FIRST SECTION

JUDGMENT RENDERED JUNE 21, 1995

PLAINTIFF: THE FEDERATION OF ASSOCIATIONS called "FORUM DES ASSOCIATIONS ARMENIENNES DE FRANCE" ["FORUM OF ARMENIAN ASSOCIATIONS IN FRANCE"], with head office in Paris, 19th Arrondissement, at 15, avenue Mathurin Moreau, in the person of its president in office, Zabelle Cheghikian,

Represented by:

Mr. Patrick G. Quentin, Esq., attorney, PN 75 (Nanterre),

Assisted by:

Mr. Patrick Devedjian, Esq., trial counsel, C 415. Mr. Daniel Jacoby, trial counsel, P 306

INTERVENOR: LA LIGUE INTERNATIONALE CONTRE LE RACISME ET L'ANTISEMITISME ["INTERNATIONAL LEAGUE AGAINST RACISM AND ANTISEMITISM"], with head office in Paris, 10th Arrondissement, 40, rue de Paradis, in the person of its president, Pierre Aigenbaum,

Represented by:

Ms. Veronique Levy-Riveline, Esq., attorney, E 93,

Assisted by:

Mr. Mr. Philippe Bataille, Esq., trial counsel (Versailles).

DEFENDANT: Bernard Lewis,
American citizen, residing in Princeton, New Jersey (United States of America) at 167 Hartley Avenue,

Represented by:

Mr. Thierry Levy, attorney - C 179. OFFICE OF THE PUBLIC PROSECUTOR
Ms. Terrier-Mareuil, First Deputy Public Prosecutor.

COMPOSITION OF THE COURT

Judges taking part in deliberations:

Ms. Cochard, Presiding Judge
Mr. Lacabarats, Deputy Presiding Judge
Ms. Feyedeau, Deputy Presiding Judge

CLERK OF COURT: Ms. Bayard

DEBATES: At the public hearing of May 17, 1995.

JUDGMENT: Rendered in public hearing after hearing all parties, subject to appeal.

HEARING OF JUNE 21, 1995
FIRST CHAMBER - FIRST SECTION
NO. 12 (CONT'D)

When questioned by two journalists from Le Monde regarding the question: "why do the Turks still refuse to acknowledge the Armenian genocide," the historian Bernard Lewis, in an interview published in Le Monde on November 18, 1993, responded as follows:

"Do you mean acknowledge the Armenian version of this event? The Turks had an Armenian problem caused by the advance of the Russians and an anti-Ottoman population living in Turkey, which was seeking independence and openly sympathized with the Russians coming from the Caucasus. There were also Armenian gangs - the Armenians boast of the heroic feats performed by the Resistance -,and the Turks certainly had problems of maintaining order under wartime conditions. For the Turks it was a matter of taking punitive and preventive measures against an unreliable population in a region threatened with foreign invasion. For the Armenians it was a matter of wanting to free their country. However, both sides agree in recognizing that repression was geographically limited. For example, these measures barely touched the Armenians living elsewhere in the Ottoman Empire.

No one disputes that terrible things happened [and] that many Armenians - and also Turks - died. But the exact circumstances and the final tally of the victims will doubtless never be known. Think of the difficulties involved in establishing facts and assigning responsibilities related to the war in Lebanon, which nevertheless took place so recently and under the gaze of the entire world! During their deportation to Syria, hundreds of thousands of Armenians died of hunger and cold..., but if one speaks of genocide, that implies a deliberate policy, a decision to systematically destroy the Armenian nation. This is highly doubtful. Turkish documents reveal the desire to deport, not to exterminate."

When asked "Do the Turks acknowledge even the limited facts you have just mentioned?", Mr. Lewis answered:

"That depends on which Turks. The government authorities acknowledge nothing. Some Turkish historians would give you more nuanced answers."

Because these replies aroused spirited reactions from a large number of prominent figures, in an article entitled: "Armenians, That's Called Genocide" appearing in the November 27, 1993 issue of Le Monde, on January 1, 1994 the same daily published, under the title "Clarifications Offered by Bernard Lewis, the following text:

"I would like to explain my views on the deportation of Armenians in 1915 in a clearer, more precise fashion than was possible in an interview which was necessarily selective. A number of facts are still quite difficult to establish with certainty. My reference to Lebanon was not intended to assert the difficulty involved in determining and assessing the course of events in a complex, confusing situation. The comparison with the Holocaust was, however, skewed in several important respects.

"1) There was no campaign of hatred aimed directly at the Armenians, no demonizing comparable to European anti-Semitism.

"2) The deportation of Armenians, although on a large scale, was not total; in particular, it did not apply in the two large cities of Istanbul and Izmir.

"3) The Turkish actions taken against the Armenians, although disproportionate in scope, were not based on nothing. The fear of a Russian advance in the eastern Ottoman provinces, the knowledge that many Armenians viewed the Russians as their liberators from the Turkish government, and the awareness of Armenian revolutionary activities against the Ottoman State, all of these factors helped create an atmosphere of anxiety and suspicion, which was exacerbated by the increasingly desperate situation of the Empire and the all-too- familiar wartime neuroses. In 1914, the Russian formed four large units of Ottoman Armenian volunteers, some of whom were well-known public figures.

"4) Deportation on criminal, strategic, and other grounds had been carried out for centuries in the Ottoman Empire. The deportations practiced by the Ottoman regime did not target Armenians exclusively and directly. As one example, faced with the threat of the Russian advance and of the imminent occupation of his town, the Ottoman government of Van hastily evacuated the Moslem population, who were forced to travel along the roadways without transportation or food, rather than allow this city to come under Russian control. Very few Moslems survived this "friendly" deportation.

"5) There is no doubt that the Armenians' suffering were a terrible human tragedy, which still haunts the memory of this people, as the Holocaust lingers in the memory of the Jews. A large number of Armenians died from starvation, disease, neglect, and also from cold, since the sufferings engendered by deportation continued through the winter. There were unquestionably terrible atrocities, although not all on one side, as demonstrated by the reports of American missionaries before the deportations. These reports focused mainly on the fate of Moslem villagers in the Van region who fell into the hands of the Armenian volunteer units.

"However, these events must be seen within the context of an uneven struggle, but which was fought for real stakes and of a genuine Turkish apprehension - doubtless greatly exaggerated but not totally unfounded - affecting a poor Armenian population ready to assist the Russian invaders. The Young Turk government in Istanbul decided to resolve the issue by the old method - often used - of deportations. The deportees had to endure frightful hardships, which were intensified by the harsh conditions of the war in Anatolia, by the poor quality of their escorts - given the absence of virtually all able-bodied men, who had been mobilized - and by the predatory actions of bandits and many others who took advantage of the occasion. Nevertheless, no serious proof exists of a decision and plan of the Ottoman government for extermination of the Armenian nation."

Believing that, by such remarks, Bernard Lewis had disputed the existence of the Armenian genocide or, at the very least, trivialized the persecutions and sufferings inflicted on the Armenian deportees, and that, by doing so, he committed a tort for which compensation could be claimed, because of the very serious injury he inflicted on the memory and respect owed to the survivors and their families, the Federation of Associations called the “Forum of Armenian Associations in France" brought a legal action by complaint dated February 14, 1994 to establish liability under Article 1382 of the Civil Code, to pay to each of the associations seeking compensation the sum of 100,000 francs in damages and the sum of 10,000 francs, pursuant to Article 700 of the New Code of Civil Procedure.

The plaintiff further seeks publication of the judgment in five daily and five weekly national papers, as well as the provisional execution thereof.

Through its pleadings of August 10, 1994, the International League Against Racism and Anti-Semitism intervened to seek payment of the symbolic one franc and to join in the request for publication, asking additionally for the pay of the sum of 10,000 francs under Article 700 of the New Code of Civil Procedure.

In his defense, Bernard Lewis, who questions the Forum's standing to bring the action, first raises the expiration of the statute of limitations of the action. He contends that Article 1382 of the Civil Code cannot be applied, since the tort of which he is accused consists of "denying a genocide," a crime mentioned and made punishable by the law on the press, of which the provisions relating to a short statute of limitations must be complied with in this particular case. He notes that no action tolling the statute of limitations was introduced within the three months following the issuance of the summons before the court, thereby maintaining that the statute of limitations had run its course.

He next contends that the exactions committed by the Ottoman government against the Armenian people in 1915 are not encompassed within the definition of the crimes that Article 24 bis of the Law of July 29, 1991 prohibits from disputing, and thus concluded that the suit was inadmissible. In any event, he disputes the tortious nature attributed to his remarks, claiming, as an historian, the freedom to advance an opinion different from that of the Forum, since the question of Armenian genocide has not been definitively settled.

He recalls that the judge must give the historian complete freedom of judgment, and must ensure only that his positions have a finality or a purpose separate from his historical work; that, in this regard, nothing supports the assertion that, through the criticism of a prevailing opinion, Bernard Lewis wished to promote the restoration of an anti-Armenian policy, nor that he intended to injure the victims.

He noted that, to the contrary, he had emphasized the suffering endured by the Armenians, and that he did not deny the existence of deportations approved by the Ottoman government.

Contending that we was entitled to question the definition to be given to these crimes, in the context of evidence which is difficult to collect and of persistent debates among historians, he asserts that he committed no tort and, secondly, concludes that the claims should be rejected.

He seeks judgment jointly and severally against the Forum of Armenian Associations in France and the International League Against Racism and Anti-Semitism in the amount of 30,000 francs pursuant to Article 700 of the New Code of Civil Procedure.

In reply, through its pleadings of November 8, 1994, the Forum explained that its bylaws give it complete legal autonomy with respect to its member associations, and that its purpose is to ensure the preservation of an identity, of which the genocide is an essential part.

Since the remarks of Bernard Lewis did not correspond to the restrictive list of violations set forth and made punishable by the Law of July 29, 1881, it maintained that the action can be founded only on Article 1382 of the Civil Code and is not subject to the short statute of limitations.

As regards the merits, it contests the arguments advanced by the defendant and notes the duty to be circumspect imposed most especially on any historian whose research and thought is focused on a recent period of history, whose surviving and suffering witnesses deserve consideration: it criticized Bernard Lewis's assertions point by point, and advanced arguments which, in its view, proved the reality of the Armenian genocide.

In its brief of November 23, 1994, the International League Against Racism and Anti-Semitism, whose mission is to "use all possible means to combat denials of genocides and apologias for crimes against humanity, and to defend the moral interests, the honor, and the memory of deportees," concurred on all points in the line of argument developed by the Forum.

In its modified brief of November 21, 1994, the plaintiff requests, for its sole account, that the defendant be assessed damages in the amount of 100,00 francs.

The plaintiff claims in its final brief that Bernard Lewis acknowledged his tort in a letter sent October 11, 1994 to the presiding judge of the 17th Criminal Court of Paris.

It disputes the right of Mr. Lewis to refrain from characterizing by the term "genocide" the massacres perpetrated in 1915, given that the truth of that event was accepted by the United Nations on August 29, 1985 and by the European Parliament on June 18, 1987.

It asserts that Bernard Lewis cannot be held to be an historian on the Armenian question, since he has published no study on this subject. It maintains that he is actually an engaged intellectual who conducts intensive "lobbying" activities on behalf of Turkey.

In subsequent documents delivered on January 10, 1995, Bernard Lewis disputes the cogency of these allegations, and notes that it had not been shown that he had pursued any objective other than that of an historian. He reiterates that the historian's freedom must be protected, as long as he has not put his critical faculties in the service of animosity or pursued an objective foreign to his work, but that, to the contrary, he had complied with the rules governing his profession.

ON THE ADMISSIBILITY OF THE LAWSUIT

Whereas the defendant who, in his initial brief, cast doubt on the admissibility of the action brought by the Forum of Armenian Association, did not subsequently advance any argument in this regard; whereas the plaintiff's standing to sue is incontestable, since it is pursuing the defense of the interests it is intended to protect, and whereas, moreover, the admissibility of the intervention by the International League Against Racism and Anti-Semitism was not contested;

Whereas, with respect to the statute of limitations, the field of application of Article 24 bis of the Law of July 29, 1881 is limited to crimes against humanity as defined in Article 6 of the Statutes of the Nuremberg International Military Court, that is, crimes committed during the Second World War by organizations or persons acting on behalf of the European Axis countries; whereas, accordingly, the special protection ordered by the law against the denial of these crimes is not applicable to the denial of other crimes against humanity, such as, in this particular case, the crimes of which the Armenian people were the victims in 1915;

Whereas, since the tort of which Bernard Lewis is accused, which cannot constitute a violation of the law on the press, which has as its basis the common-law liability decreed by Article 1382 of the Civil Code, is not subject to the short statute of limitations under Article 65 of the Law of July 29, 1881; and whereas, in consequence, the action must be declared admissible;

ON THE MERITS OF THE CLAIMS

Whereas it was on the occasion of the publication in France of the translations of two of his books, "The Arabs in History" and "Race and Slavery in the Middle East" that Bernard Lewis, presented as a specialist in the Arab medieval period, Ottoman and Kemalist Turkey and contemporary Islam, granted an interview to the journalists of the daily Le Monde; whereas he replied as a historian to the various questions put to him, describing, in particular, the political evolution of Turkey (the resistance to Islamism and the movement toward a religious government) with respect to its request for membership in the European Union; whereas he also spoke as an historian when he made the remarks in question concerning the reasons for which Turkey refused to acknowledge the existence of the Armenian genocide;

Whereas, contrary to what the plaintiffs asserted in some of their submissions (pleadings delivered November 8, 1994 by the Forum of Armenian Associations in France, page 5), the Court is not called upon to assess or to state whether the massacres of Armenians committed from 1915 to 1917 constitute or do not constitute the crime of genocide, as currently defined in Article 211-1 of the New Penal Code;

Whereas, in fact, as regards historical events, the courts do not have as their mission the duty to arbitrate or settle arguments or controversies these events may inspire and to decide how a particular episode of national or world history is to be represented or characterized;

Whereas, in principle, the historian enjoys, by hypothesis, complete freedom to relate, according to his own personal views, the facts, actions and attitudes of persons or groups of persons who took part in events the historian has made the subject of his research;

Whereas, however, while he thus enjoys complete latitude to cast doubt, according to his own assessment, on the evidence gathered or accepted ideas, the historian may, however, not evade the universal rule which links the legitimate exercise of a freedom to the necessary acceptance of a responsibility;

Whereas, in this regard, and without prejudice to the special provisions concerning the press and publishing, the historian is liable toward the persons concerned when, by distortion or falsification, he credits the veracity of manifestly erroneous allegations or, through serious negligence, omits events or opinions subscribed to by persons qualified and enlightened enough so that the concern for accuracy prevents him from keeping silent about them;

Whereas, in the remarks he made on November 16, 1993, the import of which was not mitigated, but rather strengthened, by his clarification of January 1, 1994, Bernard Lewis, by answering the question "Why do the Turks still refuse to acknowledge the Armenian genocide?" with the remark: "Do you mean the Armenian version of this event," substantiates the idea that the reality of the genocide is only a product of the imagination of the Armenian people, are ostensibly the only people to assert the existence of a concerted plan, implemented on the orders of the Young Turk government, to destroy the Armenian nation;

Whereas this thesis is contradicted by the documents submitted in evidence, which show that, in the study of the question of the prevention and punishment of the crime of genocide adopted by the United Nations subcommittee on August 29, 1985, the Ottoman massacre of Armenians is among the cases of genocides recorded in the twentieth century; that the conference entitled "Permanent Peoples' Tribunal" held in Paris on August 28, 1984, which brought together prominent international figures, held that the accusation of Armenian genocide brought against the Turkish authorities was well founded; and that, in a resolution approved on June 10, 1987, the European Parliament acknowledged the reality of the Armenian genocide and held that Turkey's refusal to acknowledge it constituted an obstacle to that country's membership in the European Community;

Whereas, while Bernard Lewis was entitled to dispute the validity and import of such assertions, he had a duty to point out and analyze the circumstances capable of persuading readers of the lack of relevance thereof; whereas, in any event, he could not keep silent on consistent relevant information weighed by international bodies, which reveals that, contrary to what is suggested by the remarks in question, the thesis of the existence of a plan to exterminate the Armenian people is not advanced solely by the latter.

Whereas, even if it is in no way established that he pursued an objective foreign to his role as historian, and even if it is not disputable that he may maintain an opinion on this question different from those of the petitioning associations, the fact remains that it was by concealing information contrary to his thesis that the defendant was able to assert that there was no "serious proof" of the Armenian genocide; consequently, he failed in his duties of objectivity and prudence by offering unqualified opinions on such a sensitive subject; and his remarks, which could unfairly rekindle the pain of the Armenian community, are tortious and justify compensation under the terms set forth hereafter;

ON THESE GROUNDS

The Court;

Declares the action to be admissible;

Adjudges Bernard Lewis liable to pay to each plaintiff, the FORUM OF ARMENIAN ASSOCIATIONS IN FRANCE, and to the INTERNATIONAL LEAGUE AGAINST RACISM AND ANTISEMITISM the sum of one franc in damages;

Orders the publication of excerpts of this judgment in the next issue of the newspaper Le Monde to appear after the date on which this judgment shall be made final, the cost of this insertion, to be borne by the defendant, not to exceed twenty thousand (20,000) francs;

States that no grounds exist for provisional execution; Adjudges Bernard Lewis to pay, pursuant to Article 700 of the New Code of Civil Procedure, the sum of ten thousand (10,000) francs to the Forum of Armenian Associations in France, and the sum of four thousand (4,000) francs to the International League Against Racism and anti-Semitism;

Sentences the defendant to costs.

Judgment rendered in Paris on June 21, 1995

THE CLERK OF COURT
P. Baryard

THE PRESIDING JUDGE
J. Cochard
[signature]