Talaat, Enver & Jemal were charged with war crimes by the Turkish court martial on June 10, 1919

Commemorating Genocide: Recognition vs. Justice for Armenian Genocide

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Philippe Raffi Kalfayan

By Philippe Raffi Kalfayan

In the first place, the author wishes to pay tribute to the historians of the Armenian Genocide, from the pioneers to those who work today on the Ottoman archives. The latter have been accessible for about 10 years, and their contents are undermining the official Turkish version of the events of 1915-1923.

Typical of all mass state crimes, documentation and truth emerge at a later point. Historians therefore still have much work to do in analyzing the documents. However, room should have been made for lawyers, because the more time passes, the fewer solutions the law offers for a judicial response to the events. It is worth remembering that “historical truth” is not “judicial truth” and vice versa.

The author submits that the recognition of the Armenian Genocide by Turkey will become possible when its domestic politics will enable it (Armenia’s first president, Levon Ter-Petrosian, was arguing that the recognition matter is not ours but Turkey’s). As long as Turkey is ruled by a nationalist and religious discriminatory ideology, which is at the very foundation of its republic, neither resolution nor declaration from a third country will be able to put an end to the official policy of genocide denial. The Armenian side is no less nationalistic, the official doctrine of the government, espoused by the Armenian lobbies in the diaspora, is based on the sole process of political recognition of the genocide at the international level. President Armen Sarkisian, who was just sworn in, said that recognition of the genocide is not an end in itself. The author agrees with this assertion, but formulated as such, it is insufficient, and in this respect contrary to the need of justice expressed by each Armenian.

In 2015 I wrote about the political stalemate that constituted both the “Pan-Armenian” Declaration of January 29, 2015 and the dogmatic fight around the use of the word genocide, but, above all, about the fact that the compensation due for the massive and serious violations of human rights and humanitarian law by the Ottoman Empire does not depend upon the criminal characterization of the crimes committed.

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This article reviews some of the misconceptions about the Armenian Genocide, analyses the difference between recognition and justice, and reviews options in the light of the fight against impunity for historical crimes and of international law.

Misconceptions about Armenian Genocide

The militant and stereotyped speeches concerning the genocide of Armenians reveal a large number of inaccuracies, which also reflect the narrow understanding of the problem, and thus of the absence of a clear collective strategy.

Here are some of the statements in their broad strokes: The genocide of Armenians is the first of the 20th century. It would be imprescriptible. It has 1.5 million victims. The genocide of the Jews has been recognized while that of the Armenians has not. The recognition of the genocide is necessary to ask for redress.

Set out in this way, these statements call for the following observations:

The genocide of Namas and Hereros, tribes in Namibia, by Imperial Germany from 1904 to 1908, preceded that of the Armenians. Germany has acknowledged its responsibility and is in the process of repairing those wrongs.

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The non-applicability of statute of limitations to international crimes (the author has published a scientific book on this subject, la France et l’Imprescriptibilité Des Crimes Internationaux) is a procedural provision relating to criminal law. It is the subject of an International Convention (1968) which is not universal. Only 55 nations have ratified it. The United States, France, China, Turkey and Western Europe have not. In addition, its retroactivity is disputed. If the International Criminal Court has adopted the principle, the non-applicability of statute of limitations applies only to the most serious crimes for which it has jurisdiction and which occurred after the entry into force of the Rome Statute (July 2002).

Armenian sources are erratic about the precise number of victims (between 1.1 and 1.5 million). The figures for the genocide of European Jews are no less erratic (between 4.5 and 6 million). This macabre count is actually secondary because the gravity of those crimes does not rest on the number of victims, but rather on the massive, barbaric, systematic and premeditated features against the target group. However, since the opening of the Ottoman archives, it is now possible to demonstrate accurately the number of Armenians deported, massacred or disappeared, contradicting in the best way the indecent and equally vague statistics of the official Turkish propaganda (from 300,000 to 500,000 victims).

A young survivor of the Armenian Genocide (photo courtesy of Armenian National Institute)

Genocide and the Bad Track of Criminal Law

Neither the Armenian Genocide nor the genocide of Jews is, according to present judicial practice and legal principles, eligible to qualify for the legal definition of genocide. Genocide is a crime — the ultimate form of a crime against humanity. It comes under criminal law. The Convention for the Prevention and Repression of this Crime is now universal, dating back to 1948, and domestic laws have since incorporated genocide into their penal codes.

However, the non-retroactivity of criminal law is a universal principle, on the one hand, and international criminal liability exists only for individuals and not for states, on the other. It should be recalled that the Nuremberg’s International Military Tribunal (IMT) ruled against the war criminals of the Nazi regime and not against the German state. It condemned them for crimes against peace and war crimes, and for some of them, for crimes against humanity, but in connection with those central offenses.

Jurists and magistrates of the IMT did not know how to solve the problem of non-retroactivity of the new crime defined by the London Agreement in August 1945 and in the Court’s Statute. Therefore, the count of crimes against humanity was not the main one. Moreover, nowhere was the legal concept or the word genocide mentioned.

In 1919-1920, during the trials of the leaders and members of the Committee for Union and Progress Committee (CUP), there was no modern legal definition of the crimes committed. (See Judgment at Istanbul, Dadrian/Akçam’s book https://www.amazon.com/Judgment-Istanbul-Armenian-Genocide-Trials/dp/0857452517 .) Both the indictment and the verdict describe a mass crime planned and organized by the CUP through deportations and massacres. The Ottoman courts have even set the definition of what contemporary international criminal law established as the Joint Criminal Enterprise (ICTY – Former Yugoslavia ad hoc Tribunal’s definition).

Criminal justice was served. One could even detect a correlation between the death sentence of Mustapha Kemal in abstentia on May 27, 1920 and his will to come into power by force, which allowed him later to obtain the amnesty of convicts or detainees in Lausanne (1923).

Some question and compare the res judicata of judgments of international courts over those of domestic courts (this is the argument of the Dutch government which refuses the recognition motion of the Armenian Genocide). From a strict legal standpoint, there is no such rule of primacy of international jurisdictions over local ones. One may even argue that the decision of the Ottoman courts has a higher authority, since they were sovereign while the international tribunals of Nuremberg (1945-1946) and Tokyo (1946-1948) are often referred as “victors’ justice,” due to the fact that Allied Powers were acting at the same time as prosecutors and judges.

The ICC’s statutory principle of complementary comes to reinforce that argument: it must be reminded that the ICC relies upon the capacity of Rome Treaty member countries’ domestic courts to try international crimes. The ICC intervenes only upon the request of national authorities, in absence of relevant domestic judicial capabilities, and in case of conflict of interest, when local authorities refuse to try them.

 

Defendants in the dock at the Nuremberg trials. The main target of the prosecution was Hermann Göring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler’s death. (Wikepedia Photo)

On the other hand, even though Jews and Armenians are mostly mentioned as victims, the Nuremberg Tribunal, like the Ottoman Military Courts, were not exclusive. The first tried all the Nazi crimes and not only the Jewish Holocaust; the latter referred to crimes against Christian minorities, not just those against Armenians.

So far as the mass atrocities committed against Armenians in 1915-1923 are concerned, the debate has focused for many years exclusively on the legal categorization of the crimes, whether as “genocide” or as “crimes against humanity.” As regards the international criminal law, this discussion is irrelevant: there are no more criminals, survivors and witnesses alive.

Instead, the law of state responsibility for internationally wrongful acts is pertinent. According to it, any internationally wrongful act whatever its characterization under international criminal law entails an obligation to make reparation and this obligation is viewed today as due to the victims in case of mass atrocities. From that perspective, the still ongoing debate over the “G” word (whether the mass atrocities committed against the Armenians in 1915-1923 amount to a genocide, or whether it is permissible under international law to prosecute any person denying the existence of the Armenian Genocide) cannot hinder the process of reparation which is indisputably due to the victims for the mass crimes suffered (massacres, rapes, forced disappearances, confiscation and appropriation of properties, etc.). Actually, as early as 1919, a calculation of the damages suffered was made by the Special Committee of the First Sub-Committee of the Paris Peace Conference’s Commission on Reparations of Damage, on the basis of data submitted by the Armenian National Delegation.

Reparation Is Justice

This principle was notably included in the Resolution adopted in December 2005 by the UN General Assembly on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious

Violations of International Humanitarian Law, according to which, in particular:

“Adequate, effective and prompt reparation is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation should be proportional to the gravity of the violations and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shall provide reparation to victims for acts or omissions which can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law.”

Reparation in international law is inclusive of several defined concepts: restitution, compensation, satisfaction and guarantees of non-repetition. For remote past crimes, satisfaction is the most common form of reparation in the practice of courts and states, and most in conformity with the need of the peoples who are waiting for justice. One exception, though, deserves a mention: indigenous peoples are recognized the right to restitution of their ancestral lands, due to the specifics of their belief, culture and traditions.

The outcome of all research as far as the reparation of past and historical mass atrocities, which leave a very deep psychological imprint on descendants of the victims or survivors, shows that, as far as this category of crimes is concerned, the recognition of guilt and the duty of memory by the perpetrators are required to reach reconciliation. This one is possible with four conditions: the establishment of facts, a judicial recorded narrative, a sincere political will and reparation measures, mostly symbolic and moral. Such provisions, when implemented, are the best guarantees against the non-repetition of similar wrongful acts.

International Recognition Falls Short of Effective Justice

Recent history has at least clarified that healing the past by external pressure on the governments has only limited success.

The new Armenian president added that “the international recognition and condemnation of this horrendous crime against humanity is an important step for the purpose of ruling out its repetition anywhere in the world.” That assertion conforms to the current prestige diplomacy of Armenia but falls short of Armenian demands on one hand and is an unrealistic picture of international politics.

It is readily evident that despite a whole range of international laws and bodies to enforce them, massive and large scale crimes are committed and the so-called “international community” is unable to prevent them, to wit: Saudi Arabia and the US-led coalition’s in Yemen; Israel’s in Occupied Palestine; Turkey’s against Kurds in Syria. The West condemns the actions and is ready to risk a global regional war in order to punish Syria for an alleged chemical attack having caused death of 40 people, but is an accomplice to the starvation deaths of one million people besieged in Yemen by Saudi Arabia.

One must also acknowledge that the US and France, where the Armenian lobbies are working hard to make condemn the Armenian Genocide, have themselves committed genocide and crimes against humanity and never recognized it, despite undisputed heavy crimes: Native Indian Tribes’ genocide in US and French colonial mass crimes in North Africa and Indochina. Those crimes were intentional and are documented.

The existence and boundaries of modern states are the result of past acts and omissions that would have been illegal today in the light of present international law and of most constitutions and laws.

“Historical injustices” concern populations that have been killed excluded and discriminated against by others, who, through privileges and eliminations, have been enriched.

Injustice Is Denial of Justice

Hideki Tojo, Japan’s prime minister during World War II, and the highest-ranked Japanese official to be executed for war crimes. (Getty images)

Where justice is not possible, the minimal requirement for forgiveness is to be told the full, honest and unvarnished truth. Armenians have been persuaded of being the unique victims of state denial. But reality shows a different picture. Despite the late December 2015 agreement with South Korea where it admitted its responsibility, Japan aggressively denies that the sexual slavery of Korean and other Asian “Comfort Women” was a state crime. France denies officially that they committed crimes against humanity (torture and arbitrary killings) in Algeria. The US denies war crimes committed in Iraq. Russia denies crimes against humanity committed in Chechnya. And what to say about the collective responsibility of super powers, which fight each other indirectly in Syria at the expense of a humanitarian disaster for millions of people?

Therefore, to believe, as Armenia seems to, that the reinforcement of conventional prevention of international crimes, based on the experience of Armenian Genocide, is sufficient, is illusory and in any case incompatible with Armenian demand for justice.

As reported in a previous article, the League of Nations (SDN), the precursor to the United Nations, and which was an even bigger failure than its successor, remained powerless and totally passive vis-à-vis Turkey to satisfy the claims filed in the 1920s by survivors of the genocide to get their citizenship, assets and properties back.

In the case of large-scale crimes, the issue of reparations due to victims comes up against contexts such as peace-building, reconciliation programs, and has often been sacrificed for strategic and political reasons.

However, since the 1970s and until 2010, we have witnessed the gradual and parallel emergence of several converging phenomena: the end of military dictatorships in Europe (Greece, Spain, Portugal, Turkey), in Latin America, the end of communism and the break-up of the Soviet bloc, the end of apartheid, on the one hand, and the development of differentiated mechanisms and procedures, on the other hand, to face or even condemn the crimes associated with these periods. Many Western states have also acknowledged their historical wrongs, including the US, Canada, Australia, New Zealand and France.

From this movement came new international law instruments respectful of victims’ rights: some new articulated principles became conventional norms, others soft-law rules. Ad hoc international tribunals have been established. A permanent International Criminal Court (ICC) was born. The right to remedy and the right to reparation are two of those accepted principles.

DAHK3X The Hague NL International criminal court.

In 2012, the ICC made a decision in the case Thomas Lubanga Diylo establishing the principles and procedures to be applied to reparations. The International Law Commission codified the state responsibility for internationally wrongful acts in 2001. The responsible state is under an obligation to make full reparation for the injury caused by those acts. Injury includes any damage, whether material or moral.

Justice for the Armenian Nation, considering the impossibility to base claims on the genocide convention, would consist primarily of the introduction of liability claims based not on a criminal logic of genocide but on civil proceedings based on the existence of damages and harms resulting from wrongs committed by Turkey from 1915 to 1923. Such an action would be without prejudice to the political characterization of the acts committed as genocide and should be understood as a parallel process. Temporal aspects of the reparation, with regard to both rules and procedures are critical. The proceedings may be legal, arbitral or it may consist in the establishment of a joint claims commission. Absent the consent of Turkey and the engagement of Armenia into this process, the road to justice would be long and have many obstacles ahead.

(Philippe Raffi Kalfayan is a regular columnist for the Mirror-Spectator. He is an international legal expert, the former secretary general of the International Federation for Human Rights (FIDH), an associate researcher at the Paris Human Rights Center at the University of Paris 2 Pantheon Assas.)

 

 

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