CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 17 décembre 2013

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SWITZERLAND   (Application no. 27510/08)             JUDGMENT     STRASBOURG   17 December 2013   THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 15/10/2015   This judgment may be subject to editorial revision. In the case of Perinçek v. Switzerland, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Guido Raimondi, President ,   Peer Lorenzen,   Dragoljub Popović,   András Sajó,   Nebojša Vučinić,   Paulo Pinto de Albuquerque,   Helen Keller, judges , and Stanley Naismith, Section Registrar , Having deliberated in private on 12 November 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 27510/08) against the Swiss Confederation lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Turkish national, Mr Doğu Perinçek (“the applicant”), on 10 June 2008. 2.     The applicant was represented by Mr M. Cengiz, a lawyer practising in Ankara. The Swiss Government (“the Government”) were represented by their Deputy Agent, Mr A. Scheidegger, of the European Law and International Human Rights Protection Unit, Federal Office of Justice. 3.     The applicant alleged, in particular, that he had been wrongfully convicted by the Swiss courts for having stated publicly at various events that the Armenian genocide was an “international lie”. 4.     On 10 September 2010 notice of the application was given to the Government. It was also decided that the Chamber would rule on the admissibility and merits of the application at the same time (Article 29 § 1 of the Convention). 5.     Availing themselves of their right under Article 36 § 1 of the Convention to intervene in the proceedings, the Turkish Government filed observations on 15   September 2011. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1942 and lives in Ankara. 7.     The applicant is a doctor of laws and chairman of the Turkish Workers’ Party. On 7 May, 22 July and 18 September 2005 he took part in a series of events in Lausanne (Canton of Vaud), Opfikon (Canton of Zürich) and Köniz (Canton of Berne) respectively, during which he publicly denied that there had been any genocide of the Armenian people by the Ottoman Empire in 1915 and subsequent years. In particular, he described the idea of an Armenian genocide as an “international lie”. His comments were made in several different contexts: at a press conference in Lausanne (in Turkish), at a conference in Opfikon commemorating the 1923 Treaty of Lausanne and at a meeting of his party in Köniz. 8.     On 15 July 2005 the Switzerland-Armenia Association lodged a criminal complaint against the applicant on account of the above-mentioned comments. 9.     In a judgment of 9 March 2007 the Lausanne District Police Court found the applicant guilty of racial discrimination within the meaning of Article 261 bis   § 4 of the Swiss Criminal Code (see paragraph 14 below) and ordered him to pay ninety day-fines of 100 Swiss francs (CHF – approximately 85 euros (EUR)), suspended for two years, a fine of CHF 3,000 (approximately EUR 2,500), which could be replaced by thirty days’ imprisonment, and the sum of CHF 1,000 (approximately EUR 850) in compensation to the Switzerland-Armenia Association for non-pecuniary damage. It observed that the Armenian genocide was a proven fact acknowledged by the Swiss public and in more general terms, referring in that connection to various parliamentary instruments (among them the motion tabled by Mr de Buman – see paragraph 16 below), legal publications and various statements by federal and cantonal political authorities. It also mentioned the recognition of the genocide by various international bodies, such as the Council of Europe [1] and the European Parliament. In addition, it concluded that the applicant’s motives appeared to be of a racist nature and did not contribute to the historical debate. 10.     The applicant appealed against that judgment. In particular, he sought to have the judgment set aside and additional investigative measures taken to establish the state of research and the position of historians on the Armenian question. 11.     On 13 June 2007 the Criminal Cassation Division of the Vaud Cantonal Court dismissed the applicant’s appeal. It held that from the date of the enactment of Article 261 bis § 4 of the Swiss Criminal Code, the Armenian genocide had, in the same way as the Jewish genocide, been recognised by the Swiss legislature as a proven historical fact. Accordingly, the courts did not need to refer to the work of historians in order to accept its existence. The Cantonal Court further pointed out that the applicant had simply denied that the events in question constituted genocide, without ever disputing the existence of massacres and deportations of Armenians. 12.     The applicant lodged a criminal-law appeal with the Federal Court against that judgment. In particular, he sought to have the judgment set aside so that he would be acquitted and cleared of all criminal charges and civil liability. In substance, he argued that, for the purposes of applying Article 261 bis § 4 of the Swiss Criminal Code and examining the alleged violation of his fundamental rights, the Swiss courts had not carried out a sufficient examination of whether the factual circumstances had been such as to warrant classifying the events of 1915 as genocide. 13.     In a judgment of 12 December 2007 (ATF 6B_398/2007), the relevant extracts of which are set out below, the Federal Court dismissed the applicant’s appeal: “3.1 Article 261 bis § 4 of the Criminal Code punishes conduct on the part of anyone who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or any other means, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity. An initial literal and grammatical approach shows that the wording of the law (through the use of the indefinite article ‘a genocide’ [‘ un génocide ’]) makes no explicit reference to any specific historical event. The law therefore does not preclude punishment of denial of genocides other than that perpetrated by the Nazi regime; nor does it explicitly classify denial of the Armenian genocide as an act of racial discrimination under criminal law. 3.2 Article 261 bis § 4 of the Criminal Code was enacted when Switzerland acceded to the International Convention on the Elimination of All Forms of Racial Discrimination of 21   December 1965 (RS [ Recueil systématique – Compendium of Federal Law] 0.104). The wording initially proposed in the Bill tabled by the Federal Council did not refer specifically to genocide denial (see FF [ Feuille fédérale ] 1992 III 326). The offence of revisionism, or Holocaust denial, was intended to be included within the constituent element of dishonouring the memory of a deceased person, appearing in the fourth paragraph of the draft Article 261 bis of the Criminal Code (Memorandum by the Federal Council of 2 March 1992 concerning Switzerland’s accession to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the corresponding revision of criminal law; FF 1992 III 265 et seq., specifically 308 et seq.). The memorandum does not contain any specific reference to the events of 1915. During the parliamentary debates, the National Council’s Legal Affairs Committee proposed inserting the following wording in Article 261 bis § 4 of the Criminal Code: ‘... or who on the same grounds grossly trivialises or seeks to excuse genocide or other crimes against humanity’ .... The Committee’s French-language rapporteur, National Councillor Comby, explained that there was a discrepancy between the German and French versions, pointing out that the wording was obviously referring to any genocide and not only the Holocaust (BO/CN [Official Gazette/National Council] 1992 II 2675 et seq.). The National Council nevertheless adopted the Committee’s proposal as it stood (BO/CN 1992 II 2676). Before the Council of States, the proposal by the latter’s Legal Affairs Committee to maintain the wording of Article 261 bis § 4 of the Criminal Code approved by the National Council was set against a proposal by Mr Küchler, which did not, however, call into question the phrase ‘or who on the same grounds denies, grossly trivialises or seeks to justify genocide or other crimes against humanity’ (BO/CE [Official Gazette/Council of States] 1993 96; as to the scope of this proposal, see ATF [Judgments of the Swiss Federal Court] 123 IV 202, point 3c, p. 208, and Poncet, ibid.). That proposal was adopted without any more detailed reference being made to denial of the Armenian genocide during the debate. During the elimination of divergences, the National Council’s Legal Affairs Committee proposed, through Mr Comby, that the amendments inserted by the Council of States be adopted, with the exception of the fourth paragraph, where the Committee proposed the wording ‘a genocide’, by way of reference to any that might occur. The French-language rapporteur observed that some people had mentioned massacres of Kurds or other populations, for example Armenians, and that all these genocides should be covered (BO/CN 1993 I 1075 et seq.). Further brief comments were made in relation to the definition of genocide and how a Turkish citizen might refer to the Armenian tragedy, and it was also observed that the Committee did not intend the provision to apply to one particular genocide alone but to all genocides, for example in Bosnia and Herzegovina (BO/CN 1993 I 1077; statement by Ms   Grendelmeier). The National Council ultimately adopted the following wording of paragraph 4: ‘... or any other means, violates the human dignity of a person or group of persons on the grounds of their race, ethnic origin or religion, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide...’ (BO/CN 1993 I 1080). In the subsequent parliamentary proceedings, the Council of States maintained its position, adopting the wording ‘a genocide’ (‘ un génocide ’) as a simple editorial amendment in the French version, and the National Council eventually endorsed the Council of States’ decision, without any further reference being made to denial of the Armenian genocide (BO/CN 1993 I 1300, 1451; BO/CE 1993 452, 579). It is therefore clear from the above-mentioned parliamentary proceedings that Article 261 bis § 4 of the Criminal Code does not apply exclusively to denial of Nazi crimes but also to other genocides. ... 3.4 However, these parliamentary proceedings cannot be interpreted as meaning that the criminal-law provision in question applies to certain specific genocides which the legislature had in mind at the time of enacting it, as is suggested by the judgment appealed against. 3.4.1 The desire to combat negationist and revisionist opinions in relation to the Holocaust was, admittedly, a central factor in the drafting of Article 261 bis § 4 of the Criminal Code. In its case-law, however, the Federal Court has held that Holocaust denial objectively constitutes the factual element of the offence provided for in Article   261 bis § 4 of the Criminal Code since it concerns a historical fact that is generally acknowledged as established (ATF 129 IV 95, point 3.4.4, pp. 104 et seq.), although the judgment in question makes no reference to the historical intention of the legislature. Similarly, many authors have viewed the Holocaust as a matter of common knowledge for the criminal courts (Vest, Delikte gegen den öffentlichen Frieden , note 93, p. 157), as an indisputable historical fact (Rom, op. cit., p.   140), or as a classification (‘genocide’) that is beyond doubt (Niggli, Discrimination raciale , note   972, p. 259, who simply notes that this genocide was what prompted the introduction of the provision in question; to similar effect, see Guyaz, op. cit., p. 305). Only a few voices have referred to the intention of the legislature to recognise it as a historical fact (see, for example, Ulrich Weder, Schweizerisches Strafgesetzbuch, Kommentar (ed. Andreas Donatsch), Zürich 2006, Art. 261 bis § 4, p. 327; Chaix/Bertossa, op. cit., p.   184). 3.4.2 The process of ascertaining what genocides the legislature had in mind when formulating the provision is, moreover, thwarted by a literal interpretation (see point 3.1 above), which clearly shows the legislature’s intention to favour an open-ended wording of the law in this regard, as opposed to the technique of ‘memorial’ laws such as those passed in France (Law no. 90-615 of 13 July 1990, known as the ‘Gayssot Act’; Law no. 2001-434 of 21 May 2001 on recognition of trafficking and slavery as a crime against humanity, known as the ‘Taubira Act’; Law no. 2001-70 of 29 January 2001 on recognition of the 1915 Armenian genocide). The fact that Holocaust denial constitutes a criminal offence under Article 261 bis § 4 of the Criminal Code therefore stems less from the legislature’s specific intention to outlaw negationism and revisionism when it formulated this rule of criminal law than from the observation that there is a very general consensus on this matter, to which the legislature undoubtedly had regard. Nor is there, accordingly, any reason to determine whether the legislature was guided by any such intention regarding the Armenian genocide (contrast Niggli, Rassendiskriminierung , 2nd ed., Zürich 2007, note 1445 et seq., pp.   447 et seq.). Indeed, it should be noted in this connection that while certain aspects of the wording prompted fierce discussion among the members of parliament, the categorisation of the events of 1915 did not give rise to any debate in this context, and was ultimately mentioned by only two speakers in justifying the adoption of a French version of Article 261 bis § 4 of the Criminal Code that did not allow an excessively restrictive interpretation of the text, which did not follow from the German version. 3.4.3 Legal writers and the courts have, moreover, inferred from the well-known, undeniable or indisputable character of the Holocaust that proof of it is no longer required in criminal proceedings (Vest, ibid.; Schleiminger, op. cit., Article 261 bis § 4 of the Criminal Code, note 60). Hence there is no need for the courts to have recourse to the work of historians on this matter (Chaix/Bertossa, ibid.; unreported judgment 6S.698/2001, point 2.1). As a further consequence, the basis thus determined for the criminalisation of Holocaust denial dictates the method which the courts must adopt in considering the denial of other genocides. The first question arising is therefore whether there is a comparable consensus regarding the events denied by the appellant. 4. The question thus raised relates to findings of fact. It is less directly concerned with the assessment of whether the massacres and deportations attributed to the Ottoman Empire are to be characterised as genocide than with the general assessment of this characterisation, both among the public and within the community of historians. This is how we are to understand the approach adopted by the Police Court, which emphasised that its task was not to write history but to determine whether the genocide in question was ‘known and acknowledged’ or indeed ‘proven’ (see the judgment, point II, p. 14) before forming its opinion on this latter factual issue (judgment, point II, p. 17), which forms an integral part of the Cantonal Court’s judgment (Cantonal Court judgment, point B, p. 2). 4.1 A factual finding of this nature is binding on the Federal Court ... 4.2 As regards the decisive factual issue, the Police Court not only based its opinion on the existence of political declarations of recognition, but it also pointed out that the opinion of the authorities issuing such declarations had been formed on the basis of expert opinion (for example, a panel of approximately one hundred historians in the case of the French National Assembly when it passed the Law of 29   January 2001) or reports described as cogently argued and substantiated (European Parliament). Thus, as well as relying on the existence of political recognition, this line of argument notes the existence in practice of a broad consensus within the community, which is reflected in the political declarations and is itself based on a wide academic consensus as to the classification of the events of 1915 as genocide. It may also be noted, in the same vein, that during the debate leading to the official recognition of the Armenian genocide by the National Council, reference was made to the international research published under the title Der Völkermord an den Armeniern und die Shoah (BO/CN 2003 2017; statement by Mr Lang). Lastly, the Armenian genocide is portrayed as one of the ‘classic’ examples in general literature on international criminal law, or on genocide research (see Marcel Alexander Niggli, Rassendiskriminierung , note 1418 et seq., p. 440, and the numerous references cited therein; see also note 1441, p. 446, and references). 4.3 To the extent that the appellant’s submissions seek to deny the existence of a genocide or the legal characterisation of the events of 1915 as genocide – in particular by pointing to the lack of a judgment from an international court or specialist commission, or the lack of irrefutable evidence proving that the facts correspond to the objective and subjective requirements laid down in Article 264 of the Criminal Code or in the 1948 UN Convention, and by arguing that to date, there have been only three internationally recognised genocides – they are irrelevant to the determination of the case, seeing that it is necessary in the first place to establish whether there is enough of a general consensus, especially among historians, to exclude the underlying historical debate as to the classification of the events of 1915 as genocide from the criminal proceedings concerning the application of Article 261 bis § 4 of the Criminal Code. The same applies in so far as the appellant is accusing the Cantonal Court of having acted arbitrarily by not examining the pleas of nullity raised in the cantonal appeal in relation to the same facts and the investigative measures he had sought. It is therefore unnecessary to examine his submissions except to the extent that they relate specifically to the establishment of such a consensus. 4.4 The appellant observes that he has sought further investigative measures to ascertain the current state of research and the current position of historians worldwide on the Armenian question. His submissions also appear at times to suggest that he believes there to be no unanimity or consensus among either States or historians as to the classification of the events of 1915 as genocide. However, his arguments are limited to setting his own opinion against that of the cantonal authority. In particular, he does not cite any specific evidence showing that the consensus found by the Police Court does not exist, let alone that that court’s finding is arbitrary. Admittedly, the appellant does mention that a number of States have refused to recognise the existence of an Armenian genocide. It should be pointed out in this connection, however, that even the UN’s Resolution 61/L.53 condemning Holocaust denial, adopted in January 2007, received only 103 votes from among the 192 member States. The mere observation that certain States refuse to declare in the international arena that they condemn Holocaust denial is manifestly insufficient to cast doubt on the existence of a very general consensus that the acts in question amount to genocide. Consensus does not mean unanimity. The choice of certain States to refrain from publicly condemning the existence of a genocide or from voting for a resolution condemning the denial of a genocide may be dictated by political considerations that are not directly linked to those States’ actual evaluation of the way in which historical events should be categorised, and in particular cannot cast doubt on the existence of a consensus on this matter, especially within the academic community. 4.5 The appellant also argues that it would be contradictory for Switzerland to acknowledge the existence of the Armenian genocide while supporting the establishment of a panel of historians in the context of its relations with Turkey. This, in his submission, shows that the existence of genocide is not established. However, it cannot be inferred either from the Federal Council’s repeated refusal to acknowledge the existence of an Armenian genocide by means of an official declaration or from the approach chosen – namely recommending to the Turkish authorities that an international panel of experts be set up – that the conclusion that there is a general consensus as to the characterisation of the events in question as genocide is arbitrary. In accordance with the clearly expressed wish of the Federal Council, its approach is guided by the concern to prompt Turkey to engage in collective remembrance of its past (BO/CN 2001 168: response by Federal Councillor Deiss to the non-binding motion by Mr Zisyadis; BO/CN 2003 2021 et seq.: response by Federal Councillor Calmy-Rey to the non-binding motion by Mr Vaudroz on recognition of the 1915 Armenian genocide). This attitude of openness to dialogue cannot be construed as denial of the existence of a genocide and there is nothing to suggest that the support expressed by the Federal Council in 2001 for the setting up of an international commission of inquiry did not stem from the same approach. It cannot be inferred in general that there is sufficient doubt within the community, particularly among academics, as to the classification of the events of 1915 as genocide to render the finding of such a consensus arbitrary. 4.6 That being so, the appellant has not shown how the Police Court acted arbitrarily in finding that there was a general consensus, particularly among academics, as to the classification of the events of 1915 as genocide. It follows that the cantonal authorities were correct in refusing to allow the appellant’s attempt to open a historical and legal debate on this issue. 5. As to the subjective element, the offence provided for in Article 261 bis §§ 1 and 4 of the Criminal Code requires intentional conduct. In judgments ATF 123 IV 202, point 4c, p. 210, and 124 IV 121, point 2b, p. 125, the Federal Court held that such intentional conduct had to be guided by motives of racial discrimination. This question, which has prompted debate among legal writers, was subsequently left open in judgments ATF 126 IV 20, point 1d, in particular p. 26, and 127 IV 203, point 3, p.   206. It can likewise be left open in the instant case, as will be shown below. 5.1 With regard to intent, the Criminal Court found that [the applicant], a doctor of laws, politician and self-styled writer and historian, had acted in full knowledge of the consequences, stating that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place. These findings as to the appellant’s internal volition to deny a genocide relate to matters of fact (see ATF 110 IV 22, point 2, 77, point 1c, 109 IV 47, point 1, 104 IV 36, point 1 and citations), with the result that the Federal Court is bound by them (section 105(1) of the Federal Court Act). Moreover, the appellant has not submitted any complaints on that issue. He has not sought to demonstrate that these findings of fact are arbitrary or the result of a violation of his rights under the Constitution or the Convention, so there is no need to consider this question (section 106(2) of the Federal Court Act). It is unclear in any event how the cantonal authorities, which inferred the appellant’s intention from external considerations (cf. ATF 130 IV 58, point 8.4, p. 62), could have disregarded the very concept of intention under federal law in relation to this issue. 5.2 As to the appellant’s motives, the Criminal Court found that they appeared to be of a racist and nationalistic nature and did not contribute to the historical debate, noting in particular that he had described the Armenians as aggressors of the Turkish people and that he claimed to be a follower of [Talaat] Pasha, who together with his two brothers was historically the initiator, the instigator and the driving force of the Armenian genocide (Criminal Court judgment, point II, pp. 17 et seq.). It has not been disputed in the instant case that the Armenian community constitutes a people, or at the very least an ethnic group (as to this concept, see Niggli, Rassendiskriminierung , 2nd ed., note 653, p. 208), which identifies itself in particular through its history, marked by the events of 1915. It follows that denial of the Armenian genocide – or the representation of the Armenian people as the aggressor, as put forward by the appellant – in itself constitutes a threat to the identity of the members of this community (Schleiminger, op. cit., Article 261 bis of the Criminal Code, note   65 and reference to Niggli). The Criminal Court, which found that there had been motives linked to racism, likewise ruled out that the approach pursued by the appellant pertained to historical debate. These findings of fact, about which the appellant raised no complaint (section 106(2) of the Federal Court Act), are binding on the Federal Court (section 105(1) of the Federal Court Act). They provide sufficient evidence of the existence of motives which, above and beyond nationalism, can only be viewed as racial, or ethnic, discrimination. It is consequently unnecessary in the present case to settle the debate among legal writers mentioned in point [5] above. In any event, the appellant has not raised any complaints concerning the application of federal law in relation to this matter. 6. The appellant further relies on the freedom of expression enshrined in Article 10 of the ECHR, in connection with the cantonal authorities’ interpretation of Article 261 bis § 4 of the Criminal Code. However, it appears from the records of the questioning of the appellant by the Winterthur/Unterland public prosecutor’s office (23 July 2005) that in making public statements, particularly in Glattbrugg, the appellant was intending to ‘help the Swiss people and the National Council to rectify the error’ (that is to say, recognition of the Armenian genocide). Furthermore, he was aware that genocide denial was a criminal offence and stated that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place (Criminal Court judgment, point II, p. 17). It can be inferred from these aspects that the appellant was not unaware that by describing the Armenian genocide as an ‘international lie’ and by explicitly denying that the events of 1915 amounted to genocide, he was liable to face a criminal penalty in Switzerland. The appellant cannot therefore draw any favourable inferences from the lack of foreseeability of the law he cites. These considerations, moreover, support the conclusion that the appellant is in essence seeking, by means of provocation, to have his assertions confirmed by the Swiss judicial authorities, to the detriment of the members of the Armenian community, for whom this question plays a central role in their identity. The applicant’s conviction is thus intended to protect the human dignity of members of the Armenian community, who identify themselves through the memory of the 1915 genocide. Criminalisation of genocide denial is, lastly, a means of preventing genocides for the purposes of Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature in New York on 9   December 1948 and approved by the Federal Assembly on 9 March 2000 (RS 0.311.11). 7. It should be noted, moreover, that the appellant has not denied the existence either of massacres or of deportations (see point A. above), which cannot be categorised, even if one exercises restraint, as anything other than crimes against humanity (Niggli, Discrimination raciale , note 976, p. 262). Justification of such crimes, even with reference to the law of war or alleged security considerations, will in itself fall foul of Article 261 bis § 4 of the Criminal Code, so that even from this perspective, regardless of whether these same acts are characterised as genocide, the appellant’s conviction on the basis of Article 261 bis § 4 of the Criminal Code does not appear arbitrary in its outcome, any more than it breaches federal law.” II.     RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A.     Relevant domestic law and practice 14.     Article 261 bis of the Criminal Code, concerning the offence of racial discrimination, is worded as follows: “Any person who publicly stirs up hatred or discrimination against a person or group of persons on the grounds of their race, ethnic origin or religion; any person who publicly disseminates an ideology aimed at systematic denigration or defamation of the members of a race, ethnic group or religion; any person who with the same objective organises, encourages or participates in propaganda campaigns; any person who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or other means, or any person who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity; any person who refuses to provide a service to a person or group of persons on the grounds of their race, ethnic origin or religion when that service is intended to be provided to the general public; shall be punishable by a custodial sentence of up to three years or a fine.” 15.     Article 264 of the Criminal Code, entitled “Genocide”, defines this offence as follows: “Anyone who commits any of the following acts with the intent to destroy, in whole or in part, a national, racial, religious or ethnic group shall be punishable by life imprisonment or a custodial sentence of not less than ten years: (a)     killing members of the group or causing them serious bodily or mental harm; (b)     inflicting on members of the group living conditions calculated to bring about its physical destruction in whole or in part; (c)     ordering or taking measures intended to prevent births within the group; (d)     forcibly transferring or arranging for the transfer of children of the group to another group. A person who has acted abroad but is currently in Switzerland and cannot be extradited shall likewise be punishable. Article 6 bis § 2 shall be applicable. The provisions concerning authorisation to prosecute as set out in Article 366 §   2 (b), sections 14 and 15 of the Liability Act of 14 March 1958 and sections   1 and 4 of the Political Guarantees Act of 26 March 1934 shall not be applicable to genocide.” 16.     Non-binding motion ( postulat ) no. 02.3069, tabled before the National Council by Mr   Dominique de Buman on 18 March 2002 and passed by the National Council on 16   December   2003 by 107 votes to 67, is worded as follows: “The National Council recognises the Armenian genocide of 1915. It requests the Federal Council to take note thereof and to convey its position by the usual diplomatic channels.” 17.     In a judgment of 14 September 2001 the applicant and eleven other Turkish nationals were acquitted by the Berne-Laupen District Court on charges of genocide denial within the meaning of Article 261 bis of the Criminal Code. The court found that there had been no intent to discriminate on the part of the accused. Subsequent appeals against that judgment were declared inadmissible by the Court of Appeal of the Canton of Berne, and subsequently by the Federal Court on 7 November 2002. B.     International law and practice 18.     The relevant provisions of the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 read as follows: Article I “The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” Article II “In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a)     Killing members of the group; (b)     Causing serious bodily or mental harm to members of the group; (c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d)     Imposing measures intended to prevent births within the group; (e)     Forcibly transferring children of the group to another group.” Article 3 “The following acts shall be punishable: (a)     Genocide; (b)     Conspiracy to commit genocide; (c)     Direct and public incitement to commit genocide; (d)     Attempt to commit genocide; (e)     Complicity in genocide.” Article 5 “The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.” 19.     Article 6 of the Charter of the International Military Tribunal, annexed to the London Agreement of 8 August 1945, concerned crimes against peace (sub-paragraph (a)), war crimes (sub-paragraph (b)) and crimes against humanity (sub-paragraph (c)) and reads as follows, in so far as relevant: Article 6 “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: ... (c)     ’Crimes against humanity’ – namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.” 20.     The relevant provisions of the Rome Statute of the International Criminal Court, which was adopted on 17 July 1998 and came into force in respect of Switzerland on 1 July 2002, are worded as follows: Article 5: Crimes within the jurisdiction of the Court “1.     The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a)     The crime of genocide; (b)     Crimes against humanity; (c)     War crimes; (d)     The crime of aggression. 2.     The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.” Article 6: Genocide “For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a)     Killing members of the group; (b)     Causing serious bodily or mental harm to members of the group; (c)     Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d)     Imposing measures intended to prevent births within the group; (e)     Forcibly transferring children of the group to another group.” Article 7: Crimes against humanity “1.     For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a)     Murder; (b)     Extermination; (c)     Enslavement; (d)     Deportation or forcible transfer of population; (e)     Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f)     Torture; (g)     Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h)     Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i)     Enforced disappearance of persons; (j)     The crime of apartheid; (k)     Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. ...” 21.     In its judgment of 2   September 1998 in the case of The Prosecutor v.   Akayesu (no. ICTR-96-4-T) the Trial Chamber of the International Criminal Tribunal for Rwanda highlighted the distinguishing feature of the crime of genocide: “498.     Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis . Special intent of a crime is the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.” 22.     In the same case, the Tribunal elaborated on the crime of genocide in relation to the other crimes provided for by its Statute (cumulative charges): “469.     Having regard to its Statute, the Chamber believes that the offences under the Statute – genocide, crimes against humanity, and violations of article 3 common to the Geneva Conventions and of Additional Protocol II – have different elements and, moreover, are intended to protect different interests. ... Thus it is legitimate to charge these crimes in relation to the same set of facts. It may, additionally, depending on the case, be necessary to record a conviction for more than one of these offences in order to reflect what crimes an accused committed. If, for example, a general ordered that all prisoners of war belonging to a particular ethnic group should be killed, with the intent thereby to eliminate the group, this would be both genocide and a violation of common article 3, although not necessarily a crime against humanity. Convictions for genocide and violations of common article 3 would accurately reflect the accused general’s course of conduct. 470.     Conversely, the Chamber does not consider that any [act] of genocide, crimes against humanity, and violations of article 3 common to the Geneva Conventions and of Additional Protocol II are lesser included forms of each other. The ICTR Statute does not establish a hierarchy of norms, but rather all three offences are presented on an equal footing. While genocide may be considered the gravest crime, there is no justification in the Statute for finding that crimes against humanity or violations of common article 3 and additional protocol II are in all circumstances alternative charges to genocide and thus lesser included offences. As stated, and it is a related point, these offences have different constituent elements. Again, this consideration renders multiple convictions for these offences in relation to the same set of facts permissible.” 23.     In its judgment of 26 February 2007 in the case concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) ( ICJ Reports 2007), the International Court of Justice (ICJ) noted the following: “(8)     The Question of Intent to Commit Genocide 186.     The Court notes that genocide as defined in Article II of the Convention comprises ‘acts’ and an ‘intent’. It is well established that the acts – ‘ (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; [and] (e) Forcibly transferring children of the group to another group’ – themselves include mental elements. ‘Killing’ must be intentional, as must ‘causing serious bodily or mental harm’. Mental elements are made explicit in paragraphs (c) and (d) of Article II by the words ‘deliberately’ and ‘intended’, quite apart from the implications of the words ‘inflicting’ and ‘imposing’; and forcible transfer too requires deliberate intentional acts. The acts, in the words of the ILC, are by their very nature conscious, intentional or volitional acts (Commentary on Article 17 of the 1996 Draft Code of Crimes against the Peace and Security of Mankind, ILC Report 1996, Yearbook of the International Law Commission, 1996 , Vol. II, Part Two, p. 44, para.   5). 187.     In addition to those mental elements, Article II requires a further mental element. It requires the establishment of the ‘intent to destroy, in whole or in part, ... [the protected] group, as such’. It is not enough to establish, for instance in terms of paragraph (a) , that deliberate unlawful killings of members of the group have occurred. The additional intent must also be established, and is defined very precisely. It is often referred to as a special or specific intent or dolus specialis ; in the present Judgment it will usually be referred to as the ‘specific intent ( dolus specialis )’. It is not enough that the members of the group are targeted because they belong to that group, that is because the perpetrator has a discriminatory intent. Something more is required. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words ‘as such’ emphasize that intent to destroy the protected group. 188.     The specificity of the intent and its particular requirements are highlighted when genocide is placed in the context of other related criminal acts, notably crimes against humanity and persecution, as the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (hereinafter ‘ICT’ or ‘the Tribunal’) did in the Kupreškić et al. case: ‘the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context the Trial Chamber wishes to stress that persecution as a crime against humanity is an offence belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging. In both categories what matters is the intent to discriminate: to attack persons on account of their ethnic, racial, or religious characteristics (as well as, in the case of persecution, on account of their political affiliation). While in the case of persecution the discriminatory intent can take multifarious inhumane forms and manifest itself in a plurality of actions including murder, in the case of genocide that i