18 April 2008
Nicosia, Cyprus
THE ARMENIAN GENOCIDE IN THE LIGHT OF THE GENOCIDE CONVENTION.

By Professor Alfred de Zayas, Geneva

Dear Mr Danielyan, Mr. Michaelyan, Mr. Selefyan, Mr. Papian, Dr. Vardanyan, Dr. Hohvannisian, distinguished participants,

In April 2005, on the 90th anniversary of the beginning of the genocide against the Armenians, a major international conference was held in Yerevan, to which I had the honour of being invited. On that occasion the European Armenian Federation for Justice and Democracy published in book form a study I wrote on the legal aspects of the Armenian Genocide. This study was distributed to all participants at the Yerevan memorial conference and widely disseminated among European Parliamentarians. The legal opinion was endorsed and prefaced by the International Commission of Jurists in Geneva.

An updated version of the legal opinion is being published this summer in the United States in a special issue of the Armenian Review. You can read this revised version on my website. French and Spanish versions exist, which you can obtain from Hilda Tchoboian in the Brussels office of EAFJD.

Today I will endeavour to speak about some aspects of this publication, but I shall not read out the legal opinion to you, because it is too technical and also too long.

The German Foundation Zentrum gegen Vertreibungen, or Centre against Expulsions, used the legal opinion in the preparation of the exhibit “Erzwungene Wege” (in English “forced journeys”) focusing on deportation, forced population transfers, ethnic cleansing and genocide in the 20th century, including the Armenian genocide.

You as Armenians may wonder why such a study about the Armenian genocide and the Genocide Convention should have been necessary today. Why was it written? After all, the facts of the Armenian genocide are well established. The evidence is conclusive for anyone who wants to know. The ancient Armenian villages in Asia Minor are no more. The Churches and Monasteries, the Cemeteries are but ruins or less than ruins. Where are the villages, where are the chapels, where are the sounds of the Armenian songs? Gone with the wind and the smoke of the genocide. Millennia of Armenian history in Asia Minor were deliberately destroyed by the Ottoman Empire. This is a baffling and incontrovertible fact. To ignore it and to pretend that what happened was not genocide is not only aberrant – it is intellectually dishonest, culpable bad faith -- cheap politics.

Yet denial is occurring today. Besides the assault on history and on the memory of the victims -- let us now consider the international law aspects of the genocide. Indeed, by definition international law applies to all nations and all peoples. If we agree that the Holocaust was genocide, and that Nazi Germany was responsible, who can deny that the extermination of the Armenians occurred, that the Ottoman Empire was responsible, and that the many massacres, deportations and drownings similarly and necessarily constituted genocide? Nor is it acceptable to argue that the survivors and descendants of the Holocaust are entitled to restitution and compensation, whereas the Armenians are not.

International law cannot be taken à la carte. What applies for the Holocaust also applies for the Armenian Genocide. The 1948 Genocide convention was adopted three years after the Holocaust. No one would doubt that it applies to the Holocaust, even if it was ex post facto. The Armenian genocide occurred but 25 years before the Holocaust. There is no valid argument in international law that would allow the exclusion of the Armenians from the application of the Convention.

What is crucial to know is that the Armenian claims did NOT originate with the Genocide Convention of 1948. This Convention merely confirmed existing international law and thereby strengthened the pre-existing rights of the Armenians. Indeed, at the end of World War I those responsible for the Armenian Genocide were to be tried by an international Tribunal – 25 years before Nuremberg. Dr. Hovhannysian has already spoken about the Treaty of Sevres, about article 230 which envisaged the trial and punishment of the Ottoman officials who had ordered or participated in the genocide and article 144 which provided for the restitution of stolen Armenian property. Even if this international tribunal was never set up, Turkish courts martial were conducted in Istanbul in 1919 in which the criminal responsibility of the Ottoman State and the personal liability of the perpetrators were affirmed. Three officials were executed, while the major criminals like Enver Pasha and Talaat Pasha had escaped and were only convicted in absentia. Be it as it may, the court collected evidence and established the genocidal intent of the Ottoman leaders.

Today some question whether the Genocide Convention applies to the Armenian genocide? Why is this? In America we call this kind of manoeuvre a political “red herring” – a deliberate attempt to confuse, to distract attention from the main issue – the legitimacy and the justiciability of the Armenian claims. This distracting manoeuvre consists in suggesting that the Armenian rights originate and depend on the applicability of the Genocide Convention, and then to argue that the Convention cannot apply, because it cannot be retrospective in effect.

This position has been embraced by some pro-Turkish scholars in the West and by some organizations financed by the United States State Department, which has an interest in keeping Turkey happy as a strategically important NATO ally. Some journalists and scholars in the West have fallen in the trap.

Because of the desinformation campaign of Turkish organizations and even of seemingly neutral institutions such as the International Center for Transitional Justice, it is important to recall the provisions of the Treaty of Sevres and the precedent of the Nuremberg trials, both affirming the principle that the crimes of massacres and genocide were always punishable and were not first created by recent conventions or statutes.

There is yet another hidden agenda in this red herring manoeuvre – which is to suggest that the Armenian claims depend on the judicial determination that what they endured was, in fact, genocide and not just random killings or something else. Failing such a determination, the Armenians would have no claims and go out empty-handed. This approach is fundamentally flawed, because it ignores that the legal consequences of war crimes and crimes against humanity are essentially the same as the consequences of genocide – i.e. the State must prosecute the perpetrators and the victims must be rehabilitated and compensated.

But the farce is not devoid of effect, because some non-lawyers think that if the massacres against the Armenians 1915-16 did not go over the “threshold” of what constitutes genocide, then it was not all that bad, and the page can be turned.

Recent developments in the United Nations with regard to the right of restitution for victims of gross violations are relevant to the Armenian claims. This right to restitution is affirmed in the final report of the Special Rapport of the UN Sub-Commission on Promotion and Protection of Human Rights, Awn Shawkat Al-Khasawneh, on the Human Rights Dimensions of Population Transfers. It is affirmed in the Declaration on the illegality of population transfers and the right of the victims to return to their homelands and to compensation and restitution. It is affirmed in Sub-Commission Resolutions 2002/30 and 2005/21, and in the famous Pinheiro Principles of 2005. These principles are based on the recognition that a State cannot keep the fruits of its crimes. A State that has perpetrated ethnic cleansing or committed genocide cannot be allowed to be unjustly enriched with the properties of those murdered. Ex injuria non oritur just.

Imagine the outrage in the world if Germany today were allowed to keep Jewish properties stolen by the Nazis, the synagogues, the paintings and jewels of murdered Jews. And yet, this is what has happened in Asia Minor, where Turkey holds the churches and the monasteries, the houses and lands and heritage of the murdered Armenians. This is what has happened in the North of Cyprus, where Turkey holds the Greek Cypriot churches and properties. This later outrage has been repeatedly condemned by the European Court of Human Rights, notably in the 1996 and 1998 judgments in the Loizidou v. Turkey case and in the Judgement of 10 May 2001 in the Cyprus v. Turkey case. It is for the International community to insist on full enforcement of all aspects of these judgments

Allow me to make a proposal that may help clarify the legal issues and enable the establishment of mechanisms for the return of properties to the descendants of the victims of the Armenian genocide.

Let us endeavour to involve existing United Nations organs. Concretely: The International Court of Justice at the Hague could be requested to render an “advisory opinion” on the matter. Indeed, pursuant to article 96 of the UN Charter, the UN General Assembly could ask the International Court of Justice for an advisory opinion on relevant questions of legal interpretation such as the retroactive application of the Genocide Convention and its concrete consequences in the context of the Armenian genocide. If requested to do so, the ICJ would have to affirm the retroactive effect of the Convention.

Moreover, any State party to the Genocide Convention -- including Armenia, France, Greece, Cyprus, Russia, the United States -- could invoke article VIII of the Convention and request the General Assembly “to take such action under the Charter of the United Nations as they consider appropriate”.

Besides these possible avenues of redress, any State party to the Genocide Convention can invoke article IX of the Convention and submit a “contentious case” to the ICJ, requesting a determination that the massacres against the Armenians constitute “genocide” within the meaning of the Convention, and that the Armenian genocide has continuing effects, namely with respect to the descendants of the victims of the genocide, in particular the right to their homeland and to their cultural heritage. Moreover it has continuing consequences for Turkey as the successor State of the Ottoman Empire, and for the entire international community. Not only Armenia, but also Greece, France, Cyprus, Russia, the United States, etc. as States parties to the Convention, would have standing to submit such a dispute to the ICJ.

Turkey is also a State party to the Convention and is therefore bound by Article IX, which stipulates: “Disputes between the Contracting Parties relating to the interpretation, application, or fulfilment of the Present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”

The dispute is thus prima facie justiciable. A general challenge to the jurisdiction of the Court would be subject to a determination by the ICJ of its own competence. Pursuant to article 36, paragraph 6, of the ICJ Statute, “in the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the decision of the Court.”

With regard to a challenge to the Court’s jurisdiction ratione temporis, that means, because the genocide occurred more than 90 years ago, the ICJ may rely on the declaratory nature of the Convention, and may also take into consideration the jurisprudence of the European Court of Human Rights and of the United Nations Human Rights Committee, concerning the issue of “continuing situations”, bearing in mind that the substance of the Armenian claim entails a continuing attack on the human dignity of the Armenian people through a continuing denial of their historical identity and a denial of restitution of centuries-old cultural heritage. The dispute can therefore be brought within the temporal jurisdiction of the ICJ, because the denial of restitution and compensation persists in the period following the entry into force of the Genocide Convention. Moreover, the human right to truth, repeatedly formulated by the UN Commission on Human Rights and reaffirmed by the Human Rights Council, the human right to history and identity require vindication by the International Court of Justice.

Logical consequences of the application of the Genocide Convention to the genocide against the Armenians should be the return to the Armenian people and to the Armenian Church of monasteries, churches and other assets of historic and cultural significance, as well as the granting of a measure of compensation to the descendants of the victims of the genocide. In this connection, the restitution and compensation schemes elaborated for the victims of the Holocaust provide a useful precedent. An international Fund for the victims of the Armenian genocide should be established, which could be administered by the Office of the UN High Commissioner for Human Rights.

There is not only a legal but also a moral obligation on the part of the international community to take appropriate action in order to ensure that a measure of justice be done in respect of the victims of the genocide against the Armenians and their descendants. A first step is the necessary recognition by Turkey of the historical reality of the genocide and of its responsibility as the successor State to the Ottoman Empire. For as long as Turkey persists on its official policy of negationism, it continues to violate the human rights of the Armenian people and the right to truth of all humanity.

Concluding remarks

At the beginning of this lecture I mentioned the exhibit “Erzwungene Wege” in Germany, which has been in Berlin, Düsseldorf, Stuttgart and Munich, and which will go on to other German cities. Since this exhibit also focuses on the Armenian genocide, you may consider bringing it to Nicosia, to Moscow or to Yerevan.

I would also wish to encourage you to join hands with other victims of genocide, primarily with the Greeks of Pontos and Smyrna, the Assyrian Christians of the Ottoman Empire, the 200,000 expelled Greek-Cypriots who suffered aggression and spoliation by the Turkish government in 1974. It is grotesque, that the international community tolerates the fact that Turkey exterminated more than a million Armenians and that to this day no apology and no restitution has ensured. It is a scandal that 34 years ago Turkey invaded this Island of Cyprus, and that it sill occupies militarily 37% of the land. It is obscene, that the European Union is negotiating with Turkey with a view to Turkish membership. This is almost surrealistic.

I encourage you to join hands with the 15 million German expellees of East Prussia, Pomerania, Silesia, Bohemia, Moravia, Hungary and Yugoslavia – two million Germans perished in this horrible crime against humanity at the end of the second world war. I wrote two books on this subject, “Nemesis at Potsdam” with Routledge, and most recently “A Terrible Revenge” with Palgrave, Macmillan in New York

I repeat, there is a right to the homeland in international law. There is a right to rehabilitation and compensation as provided for in countless UN Resolutions and Declarations. Let us remember also the Dayton Accords of 1995, which ended the war in Bosnia and Herzegovina. This Accord provided for the creation of a Human Rights Chamber which dealt with some 15,000 cases of restitution and compensation.

The international law norms are there and they apply. Let us insist that these norms be applied uniformly and that all victims of genocide are accorded recognition, rehabilitation and restitution.

On the way to the realization of these goals certain serious obstacles do remain – the first being lack of information. Back in November 2000 the University of Duquesne in Pittsburgh, Pennsylvania organized a major conference entitled “Ethnic Cleansing in 20th Century Europe” in which I delivered a paper on the Armenian genocide, published in book form in 2003 by Columbia University Press, edited by Professors Steven Vardy and Hunt Tooley, under the title “Ethnic Cleansing in 20th Century Europe”. The already mentioned German exhibit “Erzwungene Wege”, which deals with expulsions and genocides in the 20th century, including the Armenian genocide, has received quite a lot of attention and its catalogue is contributing to the ongoing discussion. In this connection let me refer to the recent decision by the German Cabinet to establish in Berlin a Documentation Centre to deal with the phenomenon of demographic manipulations in the form of forced population transfers.

Yet another obstacle is posed by deliberate misinformation. Thus the attempts of the Turkish government to drown out research and to criminalize references to the Armenian genocide – see articles 101 and 305 of the new penal code. Worse still is the attempt by scholars with a political agenda to reduce the Armenian genocide to a mere “relocation”. Gunther Lewy’s 2005 book “The Armenian Massacres in Ottoman Turkey: A Disputed Genocide” constitutes an academic disgrace, but one that has not been sufficiently exposed. It was recently reviewed, very negatively, by Joseph Kechichian in the Summer 2007 issue of the Journal “Genocide Studies and Prevention”. The Lewy book is as much a scandal of bad scholarship as the attempts by some historians to whitewash the Holocaust.

General public recognition of the magnitude of the crime of the Armenian genocide is the condition sine qua non for the political will to do something about it. But perhaps the greatest obstacle to the emergence of this political will is the competing political agenda of NATO. The general recognition of the Armenian genocide has been significantly delayed and impeded by the false perception of the strategic importance of Turkey in NATO and by the United States-Israel-Turkey alliance.

Allow me one last concrete proposal. As you know, Turkey has ratified the International Covenant on Civil and Political Rights. Soon it will submit its initial report for examination by the 18 experts of the Human Rights Committee. This is the moment for Armenian Civil Society and for all human rights non-governmental organizations to ensure that the Armenian question is not left out, drowned in selective oblivion. Armenians should prepare “shadow reports” for the scrutiny of the Human Rights Committee and demand that meaningful schemes of rehabilitation and restitution are put in place. Let it not be said that the victims of the Armenian genocide have been again buried – this time by our generation, that seems to care to little for history, so little for justice, and only pays lip service to human rights.

I thank you for your attention..
Professor Dr. iur et phil. Alfred de Zayas, Geneva
zayas@bluewin.ch
Former Secretary, UN Human Rights Committee, in retirement
Former Chief of Petitions at the Office of the UN High Commissioner for Human Rights, in retirement
President, P.E.N. International, Centre Suisse romand
Author of: “The genocide against the Armenians 1915-1923 and the Relevance of the UN Genocide Convention” Brussels, Geneva 2005
“50 Thesen zur Vertreibung”, Inspiration Verlag, London/Berlin 2008
“Die Nemesis von Potsdam” Herbig Verlag, 14th revised edition, München 2005
„Die deutschen Vertriebenen“, Ares Verlag, 5th revised edition Graz 2006
„Heimatrecht ist Menschenrecht“, Universitas Verlag, München 2001
„Rainer Maria Rilke, Larenopfer“, bi-lingual commented second edition, Red Hen Press, Los Angeles, 2008.
zayas@bluewin.ch
www.alfreddezayas.com