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

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By Philippe Raffi Kalfayan

Facing official commemorations of the Armenian Genocide on April 24, 2019 and new resolutions or political declarations of third-party countries (France, Italy, Portugal), Turkey adopted an aggressive tone and a denial with tones that were thought to have disappeared. President Recep Tayyip Erdogan has outdone all his predecessors in denial and lies. He is known for his unparalleled boldness, especially when he argues with an extraordinary aplomb that the existence of an Armenian diaspora is proof that there has been no genocide. The Armenian Diaspora, of course, exists because of the policy of extermination and forced deportation perpetrated by Ottoman Empire. The successor state, Turkey, does not ignore it. Hence, this declaration may be interpreted as the expression of regret that the Young Turks did not execute their sinister plan “properly.”

Further, Erdogan’s communication on April 24 at the Symposium on Archives’ Development is an unprecedented confession: he justifies the deportation of the whole Armenian Ottomans of Anatolia (1.2 million of men, women and children for 1915-1916 period)  as the “most reasonable step” at the time, qualifying all of them as “gangs and theirs supporters,” which allegedly massacred Muslims.

The street commemoration that was to take place in Istanbul, as in previous years, was banned this year by the police. One of the leaders of the Nor Zartonk movement has even been arrested. Now the attitude is back to a harsh denialist discourse and measures aimed at nipping in the bud any hint of public support for the memory of the victims of the genocide or the evocation of the latter. The activists who braved the ban on the commemoration avoided saying the “G” word publicly. The forced alliance with the MHP, the ultranationalist and racist party with which Erdogan formed a coalition government, and the general situation of rights and freedoms in Turkey, could have only led to such a result.

The purpose of this article is to present and analyze the content of the official speeches or media reactions, and to draw conclusions not from the point of view of morality, where Armenians do not have rightly anything to hope for in the current state of Turkey, but on the politico-legal plane where everything is possible and everything remains to be done. It is indeed suggested that the situation thus created should not lead the Armenian government to remain lax, as it has announced, but on the contrary it offers new opportunities to act. The Armenian state must not be content with denouncing “hate speech,” as the Armenian Prime Minister did. The denial and lies discredit the whole of the Turkish Republic in regard of the reality of the genocide of Armenians and the facts of general knowledge that constitute it, regardless of their legal qualification.

The Good Armenians

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The official declarations and articles speak for themselves. President Erdogan castigates third-party states for recognizing or commemorating genocide. He argues that the archives are open, invites researchers from around the world to come and work there, and calls on Armenia to create a joint commission of historians in the presence of international experts to study the events of the past. The Turkish human losses during this period would have equalled the Armenian human losses. Hence this April 24 should commemorate all the sufferings of the past; a wording echoed by President Trump in his April 24 statement: “We welcome the efforts of Armenians and Turks to acknowledge and reckon with their painful history.”

In a letter addressed to the Armenian Patriarchate of Constantinople, with a significantly different tone, Erdogan mentions “the massive humanitarian crises” that occurred during the last period of the Ottoman Empire.” He implores the mercy of God for those who are “dead as a result of epidemics and migrations.” He recalls the great contribution of the Armenians to the Ottoman Empire and the Turkish Republic and its continuity today. He calls for healing the “wounds of the past” and to look to the future by strengthening ties. Cynicism reaches its climax when he claims “we will continue to defend you,” because it specifies immediately after that the Armenians of Turkey must choose between the good Armenians, those who accept this vision, and the bad, those who “seek to create hatred, resentment and hostility by distorting our common history.” The threat is barely veiled: your protection is conditioned by the rejection of these bad Armenians.

Western Archives

The statements of the Turkish Ministry of Foreign Affairs, in response to the French, Italian and US statements, referred to the “Armenian fiction,” the suffering of the 500,000 slaughtered Muslims (adding a religious dimension that Turkey had carefully eluded so far) and the proposal of a joint historical commission to shed light on all the events that took place 104 years ago. Foreign Minister Mevluet Çavusoglu said on April 15: “We are proud of our country because our history has never had any genocide.”

In reality, Turkey does not need third parties to undertake the performance of its obligation to investigate past events. The seriousness of the violations and the fact that the fate of hundreds of thousands of Armenians who were deported in 1915 is still unknown today creates a legal obligation to investigate according to international law.

The liberal newspaper Milliyet published an article by journalist Mert Inan (source: Embassy of France) refuting the thesis of a “genocide” committed by Turkey in 1915 against Armenians, and citing several professors in support of his statement. Under the headline “Documents contradict the allegations of genocide,” the journalist notes that “despite the Armenian theses that are echoed by the West, there are also theses of foreign specialists who claim that Turkey is accused wrongly and that mutual massacres were perpetrated in 1915 by the two communities.” He cites Justin McCarthy: “It was a war between two fraternal peoples and the words related to genocide [fall under] the political slogan” and uses extracts from Ronald Suny’s 2015 book out of context: “The massacres of thousands of Turks committed by the Armenians between 1916 and 1917 and the mutual massacres committed by the two populations.” Finally, he quotes the former head of the Institute of Turkish History, Metin Hulagu: “The allegations of Armenian genocide are used as a threat against Turkey by Westerners. Our archives are open. On the other hand, those of Armenians and Europeans are closed. We call on the world to come and do research and analysis in order to set up a negotiation.”

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.]

 

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