Turkey Is Back to Hard Denial: Is It a Deadlock or an Opportunity?

Turkish Archives Are Open?

The archives of the Ministry of the Interior of the Ottoman period are accessible. This fact made possible, among other things, finding evidence of orders of deportation, extermination, and numerous statistics on the victims. As for the Republican period, there are very few documents available. The access to other relevant archives, and in particular for the Republican period which followed the genocide and which saw the establishment of official denial policy, are restricted. For example, if the archives of the Ministry of Foreign Affairs of the Ottoman period are open (the documentation is questionable) those of the Republican period are still closed. The records of the Department of Justice are not available for either period, making it impossible to access the proceedings and detailed documents of the martial courts (1919-1920 CUP trials). Garo Paylan just asked for precisely for this from the Turkish Vice-President, Fuat Oktay. Finally, with regard to the Ottoman Army archives, which are held at General Staff Headquarters, only researchers obtaining a special permit can access them but under very strict conditions: the archivists select page by page the requested documents to make available. One may add to this list the land and real estate records prior to 1924. They are not open to foreign natural or legal persons, members of populations that have been listed as “exchanged,” “emigrated,” “fugitive,” or “disappeared.” The government circular, issued the first time in 1983 and renewed since, requires cadastral services not to respond to requests for information and documents from these populations. In other words: it is difficult to claim that these archives are open.

Invoking Perinçek Judgment

The national-Kemalist daily Aydınlık quotes an academic lawyer criticizing the Turkish state for “failing to make sufficient use of the ECHR’s [European Court of Human Rights] decision in support of Dogu Perinçek’s denial of the Armenian lie.” This judgement is, according to him, strengthening the hand of Turkey.

In sum, the tone is globally aggressive, threatening, and the goal is clearly to divide the Armenian nation, especially Armenians from its diaspora, the good Armenians from the bad. The re-election of the Armenian patriarch of Istanbul is clearly shaping up to be a stage under threat. The claims are based on historical untruths, especially the alleged civil war and equal casualties.

The landmark book Genocide Denials and the Law by Ludovic Hennebel and Thomas Hochmann  recalls that “the denial of Armenian Genocide is government policy in Turkey and part of the essential duties of its diplomatic missions. Denial occurs in a network of organized political attempts to rewrite or un-write the history across international borders” (David Fraser). It adds: “the denial of the Armenian genocide is a proof of a state of denial of its own past. Turkey has tried to deny the burden of guilt that the genocide represents for an emerging nation that is trying to build itself a different past. Here the debate is created by the Turkish state itself: it revolves around the definition of genocide and its applicability to the crimes committed against the Armenians rather than on the massacres ever actually occurred” (Martin Imbleau).  And “in the Turkish successor state to the Ottoman Empire, genocide is not only tolerated, it is flourishing (Robert Kahn).”

Hochmann argues that state denialism fabricates good-faith deniers because of educational programs, but that the higher the intellectual level of these deniers, the more bad faith can be established. It is for this reason that the Lausanne Tribunal found that Perinçek’s remarks about Armenian Genocide were similar to qualified denialism: justification of the massacres, reversal of responsibilities, and glorification of the authors. Perinçek was a doctor of law and a historian, and he could not thus ignore the contradictory arguments.

In an article, Güven Gürkan Öztan and Ömer Turan (“Armenian Genocide: Turkish society and state united in denial”), the authors stress that the Turkish Republic’s will to wipe the slate clean is accompanied by a number of legal measures aimed at covering up the footsteps of 1915, especially on the question of “abandoned properties” which is corroborated by the embargo on the pre-1924 cadastral registers.

They conclude that “The AKP has maintained the denialist policy of the Turkish state on many points, whether on the question of archives, historical commissions or the use of their power in international relations. We have simply gone from a criticism of the Young Turk ideology to one that refuses to consider that civilization (Islamic-Ottoman) could have been guilty of such a crime.”

State Denial and International Law

State denial is an integral component of genocide. State responsibility has no statute of limitations; what matters is the existence of acts giving rise to such responsibility, namely internationally wrongful acts. It is established that Turkey has committed serious violations of international law. The legal sources of these violations are the 1878 Treaty of Berlin, an international treaty still in force in 1915, which required the Ottoman Empire to protect its Armenian population. Moreover, the Ottoman Empire violated the laws and customs of war of the Hague Conventions of 1899 and 1907 [the Turkish Ottoman State had ratified the 1899 one] which protected civilians in time of war as well as in times of peace, especially through the Martens Clause. Based on this legal basis, France, Great Britain and Russia condemned the Ottoman Empire for “crimes committed against humanity and civilization” on May 24, 1915.

The Genocide Prevention Resolution adopted by the UN Human Rights Council notes “with concern that attempts to deny or to justify the crime of genocide, as defined in the Convention and established as such under international law, may risk undermining the fight against impunity, reconciliation and efforts to prevent genocide.” By making the fight against state denial a means of preventing genocide, this provision obliges all States to ensure its respect.

In the UN Set of Principles for the Protection and Promotion of Human Rights Through Action Against Combat Impunity, the Principle 3 provides that “A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfillment of the State’s duty to preserve archives and other evidence concerning violations of human rights and humanitarian law and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.”

It should be noted, however, that international judgments clearly condemning individuals for genocide do not prevent Holocaust deniers from proliferating. The International Criminal Tribunal for the former Yugoslavia has established the facts beyond a reasonable doubt to prevent any denial or revisionist enterprise. But the facts were rejected by both parties as were judgments. Time does not solve this problem, especially because the official thesis is biased and subject to propaganda. For another example, Japanese society denies vigorously the wrongs committed against “Comfort Women” during WWII by the Imperial army despite the official apology of Japan in the framework of a bilateral agreement with South Korea.

Official Turkish Recognition of Massacres, Deportations

Mr. Perinçek won his case against Switzerland thanks to a controversial requalification of the meaning of the words he used. As a consequence, the criminal sanction was considered disproportionate to the act; a civil proceeding would have not, said the Court. This distinction made, we fully agree with Aydinlik’s journalist: let’s exploit the Perinçek case! The judgement and Turkish government memoir to the Grand Chamber are in total contradiction to the recent statements from the Turkish Executive.

The ECHR Section judgment (17 December 2013) referred to the “atrocities” that were committed in 1915 and subsequent years.” The Court recalls that the Turkish Government considers it essential to recall that the applicant has never denied that massacres and deportations took place on the territory of the former Ottoman Empire in 1915. In the Turkish Government’s submission, a significant difference is made between ongoing debate about the legal aspects of the events of 1915 and denial of “clearly established historical facts.”  The Turkish government submits further: “The position of the [Turkish] Government on this issue is long-standing. The Government acknowledge the strength of feeling about this terrible episode of history and recognise the massacres of 1915-16 as a tragedy.” This position is reiterated by the Turkish Government before the Grand Chamber. In its judgment (October 15, 2015), the Grand Chamber refers that Turkey has also admitted that these crimes constituted” a source of deep affliction for the Armenian people.” The judgement does not record any justification or mention of common suffering from the Turkish government.

In addition, the Court saves the possibility for national courts to consider genocide.

The Perinçek judgment could therefore in many aspects be positively interpreted as constituting at least recognition by an international court (the ECHR), that, in the light of international law, international crimes were committed in 1915 by the government of the Ottoman Empire.

Should Armenians Engage to Protect Their Dignity?

As noted by the European Court in Perinçek, “these were the rights of Armenians to respect for their and their ancestors’ dignity, including their right to respect for their identity constructed around the understanding that their community has suffered genocide.” Freedom of expression stops where it harms the “rights of others.” The Court retains a construction that makes genocide an element (not questionable, since the Court has recognized it) of the identity of the Armenian community worth of protection under Article 8 of the Convention. Such a right presupposes that there has indeed been genocide. It gives considerable credit, in any case, to the Armenian claims, in the form of a right opposable at any time and any place and the breach of which may give rise to reparation.

At any rate, all the inconsistencies and contradictions of the Turkish authorities’ stance deserve dissemination to chancelleries, public authorities, be they national, regional or international.

[Philippe Raffi Kalfayan is a Lawyer, Lecturer in International Law and a former Secretary General of FIDH (International Federation of Human Rights). He is a regular columnist for the Mirror-Spectator.]