Last week, Turkish publisher Ragip Zarakolu was convicted by a Turkish court of “insulting the state,” a crime under Article 301 of the Turkish criminal code. Zarakolu was sentenced to five months in prison, which was then commuted to a fine. His crime: publishing a Turkish translation of a British book on Armenian-Turkish reconciliation that included discussion of the Armenian genocide.
Turkey not only officially denies that the early-twentieth century killings of Armenians was genocide, something most serious scholars have long acknowledged; since 2005 the government has attempted to punish those who assert that it was, including a long list of journalists, authors and publishers.
Nobel Prize-winning author Orhan Pamuk, now a Columbia University professor, was perhaps the most famous name to be charged under this law (the charges were ultimately dropped); Hrant Dink, an Armenian-Turkish journalist who was later murdered by a Turkish nationalist, had been convicted under the article, though his conviction was overturned. For Zarakolu, this was not the first time he had been prosecuted on similar charges, including “insulting or belittling” Turkish state institutions.
The concept behind the law—that people can be punished for “insulting the Turkish nation” (before minor changes were made to the law in 2008, the crime was “insulting Turkishness”)—seems a rather old-fashioned notion: that the state, or the nation, or the national essence, has an independent personality capable of being insulted or slandered. It harks back to the days of kings and emperors—even to the sultan and Sublime Porte, through which he ruled the Ottoman Empire.
But Turkey is hardly the only country to enshrine some form of this notion in law, whether regarding the state itself or its officials and symbols (indeed, Article 301 was created in response to a European Union membership requirement that Turkey revise its criminal laws in line with European norms). Germany, to take only one example, forbids disparaging the state or its symbols, as well as the constitutional order. There, however, the law is narrowly interpreted and generally subordinated to freedom of speech.
In the United States, we hear perennial calls to forbid flag-burning, though the Supreme Court has found it to be a form of protected speech. (In a small digression, I can’t help recalling the refreshing words of a postwar German president, Gustav Heinemann. Asked whether he loved Germany, Heinemann replied, “I don’t love states, I love my wife.” Sadly, that down-to-earth, unemotional approach to the institution of the state is not reflected in the laws discussed here—or for that matter in recent U.S. discussions about flag lapel pins and patriotism).
The stranger idea is that open debate that reveals dark spots in a country’s history can be an insult to the state. Questioning the existing, official historical narrative, in this view, is an insult and by inference a dangerous attack on national identity. The idea itself reveals a degree of national insecurity, as though conceding that one’s country or nation did bad things in the past somehow makes it illegitimate and unworthy of allegiance.
Here too, Turkey is not the only country that has attempted to criminalize research into its historical dark spots. In 2006, Poland’s parliament made it criminal to “publicly accuse the Polish nation of participating in, organizing or being responsible for Communist or Nazi crimes.” The law was apparently passed in response to works by historian Jan Tomasz Gross, whose books Neighbors and Fear deal with the prevalence of anti-Semitism in wartime and postwar Poland.
Gross’s books have been highly controversial in Poland, a country that sees itself (with justification) as a primary victim of the Nazis, and therefore has difficulty acknowledging that many Poles might also have accepted, welcomed, and in some cases assisted in the killings of Jews; that is, that Poles could have been both victims and perpetrators. The dismantling of a national mythology, based in a national trauma, has proven wrenching and unwelcome to many Poles. Earlier this year, prosecutors considered charging Gross under the new law when Fear appeared in Polish.
But Gross was not prosecuted. In Turkey, however, even after revisions to Article 301, Turks continue to be charged for questioning Ankara’s official narrative, according to which the Armenians sided with the Russians to destroy the Ottoman Empire and Armenian deaths were merely the product of civil war. The Turkish government, also recalling a national trauma—the dismantling of the Ottoman Empire at the hands of Western powers—continues to fear forces seeking to pull the Republic apart, and argues that recalling past grievances could create dangerous tensions.
Whereas Poland threw off totalitarianism after the fall of the Berlin Wall and has come to embrace European values such as free speech within the safety of EU membership, in Turkey, vestiges of an authoritarian and highly nationalist regime persist, not least in the legal system that has applied Article 301. History remains government property.
There has been some progress. Nationalist lawyer Kemal Kerinçsiz, the man responsible for initiating many of the prosecutions under Article 301, was recently arrested for alleged membership in an ultranationalist organization with ties to the military and government bureaucracy that is suspected of plotting assassinations of public figures. Meanwhile, protests against the law resulting from the trials of respected public figures led to a revision that requires the Minister of Justice to initiate prosecutions.
Still, with its hopes for EU membership effectively stifled for the present, and its current moderate-Islamic government under attack from secular nationalist forces, Turkey is unlikely to alter Article 301 anytime soon. Pressure from outside may have little effect, as many Turks have become resentful of Western demands. The best hope for change in Turkey’s concepts of free speech and historical debate probably lies with the country’s own embattled, but vocal, civil society—of which Ragip Zarakolu is a courageous member.
Belinda Cooper, a senior fellow at the World Policy Institute and co-founder of its Citizenship and Security Program, is an adjunct professor at New York University’s Center for Global Affairs. Cooper, the editor of War Crimes: The Legacy of Nuremberg, teaches and lectures on human rights, international law, and the “war on terror.”