Recognition, Restitution, and Return—Modern-Day Turkey's Responsibility For the Genocide: An Interview With International Law Expert Alfred De Zayas

Interview by Aris Babikian, Armenian Weekly, July 2004

http://www.hairenik.com/armenianweekly/july_2004/politics001.html

Dr. Alfred De Zayas teaches international law at several European and North American universities. He retired recently, after 22 years of service as secretary of the United Nations Human Rights Committee. A member of the New York Bar, a Fulbright Graduate Fellow, a member of the International PEN Club, and currently Secretary General of the French-Swiss PEN Club, he is the author of several books, including Nemesis at Potsdam: The Expulsion of the Germans from the East, The German Expellees: Victims in War and Peace, and A Terrible Revenge: The Ethnic Cleansing of the East European Germans. His report on the Armenian Genocide is available at http://www.anca.org/anca/docs/deZayas-fullreport.pdf.

Aris Babikian: How did you become interested in the Armenian Genocide? What motivated you to write about it?

Alfred De Zayas: I am of Spanish descent. I have no connection with Armenia or Turkey or other countries in the region. I am an international lawyer, specializing in human rights and refugee issues. Many years ago I started investigating matters of mass population transfers. I was first interested in the expulsion at the end of World War II of 15 million German civilians from East Prussia, Ukraine, Silesia, Sudetenland, etc. That was a movement of unprecedented proportions and more than two million perished in the process.

While I was doing this research, I looked for other historical events that could I compare to in magnitude. I discovered the only one of similar severity was the deportation of Armenians from Armenia to Syria, to the desert where they perished. I was also confronted by the massacres that started on April 24, 1915, in Istanbul—a huge topic which, unfortunately, had not entered into the general public consciousness.

AB: You recently wrote a legal opinion on the Armenian Genocide vis-à-vis the United Nations Genocide Convention and international law. Can you discuss that paper and the legal conclusions that you reached?

ADZ: The Genocide Convention was adopted on December 9, 1948, one day before the Universal Declaration of Human Rights. This convention is of great relevance to the experience of the Armenians.

As you know, the Convention was already applied retrospectively in many situations concerning the Holocaust. The Holocaust which took place in Europe from 1941 to 1945, occurred prior to the Genocide Convention. Nonetheless, the Germans were convicted of genocide. The indictment of the Nuremberg Trials on August 8, 1945, created the new crime, or rather a new term (because the crime existed before), of “crimes against humanity.”

Within this concept of crimes against humanity you have the concept of genocide. As far as the application of the Convention, most of conventions don't necessarily have retrospective application. There are quite a few conventions that do.

In order to determine whether they can be applied retrospectively or not, we look at the object and the purpose of the Convention. The object and the purpose of the Convention is to prevent and to suppress. In order to prevent and suppress, you need deterrence, you need to punish those who have committed genocide in the past, and you also need to provide a measure of restitution to the victims. You also have to make sure that the thieves do not retain the bounty.

It is particularly outrageous to think that the Armenians, who had lived for thousands of years in Anatolia in what is now the territory of Turkey, were not only massacred and expelled, but their cultural heritage in this territory—their churches and monasteries—have passed into the hands of the Turkish state, and that these properties have not been restituted to the Armenian people.

I really think it is necessary to imagine what the reaction of the world community would be if modern-day Germany were still to occupy the synagogues and use them as warehouses or as prisons, as is the case of Armenian churches in Turkey. Or if Germany were to hang the paintings and other items of value of the victims of the Holocaust in its museums. It is a particularly ugly situation. For me, as a non-Armenian and non-Turk, it is difficult to understand why this situation has been tolerated.

But the Genocide Convention has to be read in connection with other conventions. It has to be read in particular in connection with the Convention of Non-Applicability of Statutes of Limitations for War Crimes and Crimes Against Humanity.

You see, genocide is the ultimate crime. There are some crimes that you put in the category of what lawyers term delicta juris gentium. It's international crime, like piracy, which falls in the grounds of universal jurisdiction, which in principle anyone should be able to prosecute.

In the case of the Armenian Genocide, obviously, there is no one that you can prosecute—the perpetrators are dead. On the other hand, you still have an obligation on the part of the state of Turkey to make restitution. As I said, this obligation under international law does not lapse with time, because claims arising out of genocide or other crimes against humanity do not lapse with time.

AB: Is the UN Genocide Convention of 1948 applicable to the Armenian Genocide? And how about the retroactiveness of the issue of the genocide against the Armenians?

ADZ: I can answer that in the affirmative. I see no problem in applying the Convention retrospectively to the experience of the Armenian Genocide, because that is in the object and purpose of the Convention. That is what the Convention intends to do. The Convention is silent on its temporal application.

Some conventions, which specifically say that it can be applied retroactively, are in fact applied retroactively. That is the case of the London Agreement of August 8, 1945, which was the charter to the Nuremberg Trials. It was the case with the Convention of the Non-Applicability of Statutes of Limitations of War Crimes and Crimes Against Humanity. That is also the case with the Vienna Convention on the Law of Treaties.

Those apply retroactively. Nobody has any objection to that. There are conventions that specifically state that they will not apply retroactively. For example, Article 11 of the Statute of Rome for the International Criminal Court says that it will not apply retroactively. But for the Genocide Convention, I am persuaded that it was the intent of the drafters that it should apply retrospectively.

As I said, essentially it was applied retrospectively in many cases concerning the Holocaust, which took place prior to the entering in force of the Genocide Convention. But I would not limit my interest or my examination of legal consequences of genocide to this one convention, because the Genocide Convention is declaratory of pre-existing international law.

That is how the Nazis could be prosecuted: They were prosecuted under the Nuremberg Charter for Genocide and Crimes Against Humanity—and those terms didn't exist at the time. As you know, the term “genocide” was invented by a Polish lawyer, Raphael Lemkin, in 1948.

What happened in Armenia from 1915-1916 and later, is without a doubt, genocide. And why a genocide? Because here there was the intent—as in Article 2 of the Convention—to destroy in whole or in part an ethnic group.

It's a classical instance of a genocide, which already then was seen by the British and French government as a crime against humanity, as they communicated officially to the Ottoman Empire in 1915.

The intention of the British and French governments was to punish [the Ottoman leaders], and that intent to punish those responsible for the Genocide was laid down in Article 230 of the Treaty of Sevres. The Sultan signed it in the name of his people.

So there is a recognition of responsibility for the Genocide. What happened was that the Sultan abdicated. Mustapha Kemal took over the reins of government, repudiated the Treaty of Sevres, and the new Treaty of Lausanne was negotiated. But that doesn't change the fact that the international community was convinced that genocide had taken place—that this crime had to be punished—even if in the end it was not punished.

The British had in their custody 120 Turkish officers on trial for the Genocide. The only reason that the international trials did not take place is that the Turks had enough military force to attack the British, and to take British hostages. The exchange of the British hostages with Turkish prisoners took place, while the trials did not take place.

The Turks themselves, in 1919 and 1920, did conduct courts-martial in Istanbul against a number of officials and military figures of the Ottoman Empire, specifically for the massacres. At that time the word “genocide” did not exist. So they were referred to as crimes of massacres.

Three of them were convicted, sentenced to death, and executed. Several others received long prison sentences. And those persons, who were tried in a normal trial with all the evidence before them, provide an important historical source.

As you know, I am not only a professor of international law, I have also studied history and I have a doctorate in modern European history. So I can appreciate the importance of legal records as a historical source, and these trials provide additional proof of the genocide against the Armenians. It's additional proof that is not of Armenian origin, because these are Turkish courts-martial.

Beyond that, you have all the contemporary evidence of the observers—British observers, American observers, American Ambassador Henry Morgenthau. His memoirs are of great importance. Also the memoirs of Johannes Lepsius and any number of official records, which reflect the disgust that Europe, meaning Great Britain and France, felt because of these massacres, and the indifference that prevailed in the Central Powers of Germany and Austria.

AB: The Turkish government justifies the release of the Turkish prisoners by Britain in Malta, stating that after researching the issue the British government and the international community could not find any kind of documentation or proof that Turkey committed genocide against Armenians and were forced to release these prisoners. How realistic is this approach or denial by the Turkish government?

ADZ: The statement, or rather the position, of the Turkish government is a political position. Like so many political statements, it cannot be taken seriously. It is preposterous. The facts are there. We know exactly how it came to be—it was an exchange for the hostages and nothing else.

That would not prejudice the fact that the Turkish courts-martial already recognized the existence of genocide and not only tried and convicted Turkish officials but executed three of them. So this is an ex post facto, and a rather weak, argument by the Turkish government. I think most people will just dismiss it.

AB: While in your judgment, the Genocide Convention applies fully to the Armenian Genocide, the International Center for Transitional Justice issued their own opinion on it, stating that although it is a genocide, it cannot be retroactively applied in case of the Armenian Genocide vis-à-vis the State of Turkey. Your conclusion is quite different from theirs. How do you reconcile these two approaches toward the retroactiveness issue?

ADZ: I am not impressed by their line of reasoning. Since an interpretation of the Convention has to be on the basis of the language of Convention, which certainly does not preclude retrospective application, but primarily on the basis of the object and purpose of the Convention, and since the Convention was drafted and adopted to suppress genocide, it obviously intends to deter genocide by punishing those who committed genocide, and also by preventing those who have committed genocide from enjoying the fruits of the crime.

This means that restitution must be effected, otherwise the Convention doesn't have much meaning. There are many prominent lawyers and professors of international law who already in the late 1940s believed that the Convention had retrospective application. And indeed, in practice, it was applied retrospectively in the case of the Holocaust.

Germans and others have been prosecuted for genocide, using the same principles in Article 2 of the Genocide Convention. So any interpretation, especially an interpretation based on the object and purpose of the Convention, would necessarily result in the conclusion that of course it applies in the case of genocide against the Armenians.

But obviously there are those who do not want to be bothered about things that happened 80-90 years ago and would rather it go away, but I don't think that legally they have made the case.

AB: The Turkish government and its apologists claim the term genocide cannot be applied to the Armenian case because the term was coined after the Armenian massacres. In legal terms, how can we justify the use of word genocide to describe what happened to the Armenians?

ADZ: Genocide is a new term to describe an old crime. In law what matters is not the label that you put on an offense. What matters are the facts—what happened. Those facts constituted violations of international law, wrongful acts, and violations of the penal codes of Turkey, of the Ottoman Empire, and of any civilized country, because mass murder is going to constitute an offense under any penal code.

Beyond that, under the Hague Convention, international humanitarian law implies two sets of laws: the Geneva Conventions, and the Hague Convention of 1907. Admittedly, the Armenians were citizens of Ottoman Turkey, so here it does not entail a crime against nationals of another country—it entails crimes against your own nationals.

The Allies—Great Britain, France, and Russia—in their protest to Turkey as a result of the genocide against the Armenians, already referred to these genocides as a crime against humanity. It is interesting that the term “crime against humanity” does not come from the Nuremberg Trials but was already used by the Allies in the context of the Armenian Genocide.

But notwithstanding the label that you put on the offense, whether you call it liquidations or annihilations—Hitler used to call it annihilations—you know the famous phrase which he used several times. The first time he used it was in 1939, when he said, “Who still remembers the annihilation of the Armenians?”

AB: The Turkish government also argues that Hitler did not make those statements about the Armenians. During your research on the German archives, did you come across documentation of this statement?

ADZ: I did not research this particular issue in the German archives, although I have spent months in German archives studying related matters. I did not address this particular topic because it is very well known. The quotation has been documented by many authors and very frequently. So, I did not feel the necessity to repeat the research that has already been done on that particular quotation.

I think it is important to realize that all victims of a crime have the same right to be considered as victims, and to be given compensation and the same respect as other victims. I think it is an anomaly that there has been restitution to many victims of the Holocaust and none whatsoever to the victims of genocide against the Armenians.

I think Armenians would do well to join forces with other victims, what I would term as “unsung victims.” Take the 200,000 Greek Cypriots who were expelled from their homeland in northern Cyprus in 1974 by the Turks, an action that was condemned repeatedly by the European Court of Human Rights.

There are several judgments, the most famous being the case of Titina Loizidou. There are several judgments against Turkey which cite specific violations of the European Convention on Human Rights which have been determined and restitution has been ordered, along with the right to return.

The right to return is the subject of my latest book, which has not been published in English yet. It is available only in German, and it is called The Right to One's Homeland is a Human Right. This is a right implemented these days through the mechanism of the human rights chamber in Sarajevo. That was a part of the deal in the Dayton Accord of 1995, providing for the return in safety and dignity of the Bosnian Muslims to their homes.

You also have the right to the homeland, the right to return of the Greek Cypriots who have the right to return to the north. One day we hope that Turkey will allow it. The right to return was even recognized for the Hutus, who committed genocide against the Tutsis in Rwanda.

So this is an important right which the Armenians also have to remedy. What can Turkey do today? First and foremost, recognize the crime. Do as the Russians did. Do as Mikhael Gorbachev did in 1990, when he officially apologized to Prime Minister Jaruzelski of Poland because it was the Russians who committed the crime of Katyn, where 15,000 Polish officers were murdered by the Russian NKVD.

First of all an apology—then restitution. You cannot punish anybody because there is no one to punish anymore. But you certainly can restore to the Armenian people the churches and the monasteries and the cultural heritage. You can also call upon UNESCO to help, because this is a common heritage of mankind. You can call upon UNESCO to rebuild it.

Obviously, you can ask for compensation, not only to the victims, because most of them are also no longer living, but to the descendants of the victims. The rights do not lapse with time—after all, the descendants also suffered trauma.

Let's not forget that if I were a Jewish descendant of survivors of the Holocaust or an Armenian descendent of survivors of the Armenian Genocide, I would be suffering trauma because I would realize what happened to my people. And that is very heavy burden to take through life.

But I don't know whether the money is the solution. I think that the gesture from the Turkish government would be very welcome, even a token amount of restitution to the descendants. But beyond that I think it is far more important if the Turkish government were to invite the Armenians to come back to their historical lands. The Armenians lived there for thousands of years, and this area is no longer populated by Armenians.

It is a very shocking situation. But the gesture from the Turkish government to invite them back, even if they do not come back, is important—as is the gesture to rebuild the cultural heritage of the Armenians. The whole area is dotted with ruins that can be built.

That can be more worthy than just giving money, because when you give money to the victims it is like buying them off. I know from my 22 years of working in the office of the UN High Commission for Human Rights—working in the Human Rights Committee, the Committee Against Torture, and the Committee for the Elimination of Racial Discrimination—that many victims do not want money.

Many victims of disappearance—persons whose parents were killed, disappeared in Chile, in Argentina and Uruguay—who came to the Human Rights Committee were far more concerned in seeing the guilty apprehended, tried, and punished than in getting any money. There were quite a few victims who refused any compensation because human life cannot be paid with money.

AB: In recent years there have been attempts of dialogue between Turks and Armenians. What is your opinion about this kind of dialogue? Is this the right approach for reconciliation between Armenians and Turks, or do you envision a different type of reconciliation and dialogue?

ADZ: I have a certain skepticism. I think dialogue is indispensable. I very much advocate a dialogue between Turks and Armenians, between Germans and Jews, between Hutus and Tutsis. But you cannot start a dialogue on false premises. I cannot see a dialogue without an apology. I cannot see a dialogue without a recognition of the crime.

I think that is a massive aggression against the identity of the descendents of the Genocide when you tell them, “We'll discuss whether it was or was not a genocide later on. But now, let's work together.” I don't think that it shows any good faith. This is a farce.

You cannot enter dialogue if the sine qua non condition—meaning the sense of being sorry—is not there. Basically, if reconciliation only means tabula rasa, if it means “we forget everything and we start new,” I am not sure that is going to provide a solution for either side.

So, I think first of intellectual honesty with oneself and with the victims. Respect the human dignity of those victims. Don't insult them again by trying to negate that they were victims. I think that is a continuation of the Genocide. I know of Turks who have suffered because they have written about the genocide against the Armenians.

But I consider it indispensable for Turkey—which has aspiration to enter the European Union and to be considered a civilized state—that it recognize the rules of the game, and the rules of the game mean human rights. We have a minimum standard of human rights, and you must satisfy that minimum standard. You cannot aspire to enter the European Union if you persist in denying historical fact that cannot be denied because the evidence is so great.

If you pretend that there was no genocide against the Armenians, that is essentially defaming the Armenians because that means the Armenians are a bunch of liars, that the Armenians have invented the genocide against themselves. That is a very serious attack against the identity and dignity of the Armenians of today.

Without an honest apology, I don't think there is much sense in proceeding. But Turkey, as you are aware, recently said that in the case of the Greek Cypriots that it would pay. The judgment in the case of Loizidou dates back to December 1996, and the second judgment dates back to July 1998. That means that it is almost six years ago, and they have not paid the million dollars that they owe to Loizidou.

I know Mrs. Loizidou, because I have lectured at the University of Cyprus in Nicosia. I had the opportunity of interviewing her and I know that she is not interested in money. She is interested in the recognition that she has the right to return her homeland in the north and that she has the right to an apology.

Her family had for generations lived in the north. If you get expelled in the manner in which 200,000 Cypriots were expelled, you want the right to return, and then in an ancillary manner you are willing to accept compensation for the suffering that has been brought on you. And if you happened to own property as she did, you expect that property be restituted.

AB: What kind of obligation does the international community have in the recognition of the Genocide? What role can they play to pressure Turkey to recognize the Genocide and close this chapter?

ADZ: Turkey wants business with the West and to enter the European Union. It is very easy to tell them, “Either you abide by the judgments of European Court of Human Rights and the minimum standard that is expected of all the members of the European Union, or you don't come in.”

Unfortunately, the US has relied heavily on Turkey because of its geo-strategic importance and because of the US bases on Turkish ground. For that reason, Turkey has found herself in a relatively strong bargaining position. They offer bases and they expect something in return.

But I don't think that Turkey is really a strategically important country today. It was strategically important at the time of the Cold War, because it was an important checkmate of the Soviet Union. But after the end of the Cold War I see very little importance of Turkey, except if you see Turkey as a ground for American colonialism in the Middle East.

The American interest in the Middle East does not coincide with the interests of France or Germany in the Middle East. So I am not sure that Turkey's importance is what it used to be. If the British, French, and Germans were honest with themselves and with their own interest, they would make sure that Turkey does what is necessary in order to qualify to be a member of the club.

AB: Do you think the recognition by international organizations and countries is helpful to the process of reconciliation, that it can help Turkey or certain parts of Turkish civil society to come to term with its history and recognize the Genocide and make amends with Armenians?

ADZ: By all means. I am very encouraged by the fact that France recognized the Genocide and that a number of other states have also done so. That makes it more difficult for Turkey to persist in negationism. I hope that the efforts undertaken by many politicians and many countries will result in a general recognition by the majority of states of this horrible crime. I think it is about time that this matter was approached as a tragedy by both the Armenians and the Turks.

AB: Do you have any advice to the Armenians about how to pursue the recognition of the Genocide in legal terms?

ADZ: In legal terms, I think it is quite important to invoke Article 9 of the Genocide Convention. Go to the International Court of Justice (ICJ) and ask for an interpretation of the Convention. The text of Article 2 requires the intent to destroy in whole or in part an ethnic group. And both the states of Armenia and Turkey have ratified the Genocide Convention.

Both of them are obliged if there is a dispute to present the dispute to the ICJ, and the ICJ has jurisdiction and it can decide that it does not want to decide, but that decision pursuant to Article 36, Paragraph 6 of the statute of the ICJ, it is for the judges of the ICJ to decide.

But it is a case that is prima facie admissible, and I hope that it would go to the merits and that the ICJ would say, “Yes, the Convention applies. Yes, it was a genocide.” And the remedy is the right to return, the right to restitution, and the reconstruction of the Armenian cultural heritage that was destroyed in 1915-1916 and thereafter.

AB: Dr. De Zayas, you mentioned the International Court of Justice as one of the avenues the Armenians should pursue. What is the downside? Could that process be politicized, could pressure be applied on the judges to look at this issue in light of Turkish revisionism or favor the Turkish point of view?

ADZ: I have no fear of politicization of the issue. I consider that the International Court of Justice in The Hague is not only the most reputable and highest instance of the United Nations in legal matters, but I do think that the judges have reached a point, where they are appointed for life, and they have no fear of getting instructions or being put under pressure.

So I would expect the ICJ to be neutral in the matter. When you are neutral in the matter, I think the conclusion of the judges will not only be that the Geneva Convention applies, but that the events of 1915-1916 constituted a genocide, that there is state responsibility for, that there is state succession, that the current Turkish government is responsible for the genocide carried out by the Ottoman Empire, and that restitution must be effected.