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Exactly one hundred and four years ago world witnessed the first systematic genocide when the international law had adopted no specific legal remedies to prevent such atrocities or decades before Raphael Lemkin coined the term “Genocide” in 1944. The calamity that befell Armenian people lived in Ottoman Empire have been widely discussed as one of the macabre events recorded in human history as it took more hundred thousands of Armenian lives, yet up to this day Turkish government has denied the events took place in Turkey against Armenians. The facts which paved the path to slaughter Armenians were filled with the rise and of nationalism in Ottoman Turkey and also it fair to assume Armenian people were caught between the two belligerent powers of Russia and Turkey and later took the pretext to considering some Armenians were loyal to Russia as a good strategy to carry out their massacre. The Armenian genocide was executed under the chief motive of eliminating the whole Armenian population from Ottoman territory. The atrocities against Armenians were given legitimacy as Turkish government promulgated temporary law of deportation and temporary law of expropriation and confiscation, which granted a legitimate way to get rid of Armenian population and also to eventually to acquire their properties as well. After the defeat of Ottoman empire and central European powers in First World War the actions taken by allies in 1919 Paris peace conference against the perpetrators of Armenian genocide. The decision of conducting a trial for the perpetrators was culminated in Treaty of Severes as its article 230 states that the Ottoman Empire “hand over to the Allied Powers the persons whose surrender may be required by the latter as being responsible for the massacres committed during the continuance of the state of war on territory which formed part of the Ottoman Empire on August 1, 1914.” However the allied attempt to establish a proper trial on Armenian genocide was faded into oblivion as the prosecutors found no solid evidence to reprimand Ottoman officers involved in Armenian genocide and eventually most of them were walked free without being charged.

Most interesting question pertinent to Armenian genocide remaining today is the ambiguity of assessing the planned intention of Ottoman government to exterminate Armenian population systematically. According to Article 2 of Genocide Convention adopted in 1948, the element of genocide can be proven when such acts were committed against national, ethnical, racial or religious group” with “the intent to destroy [it] in whole or in part”. The common rhetorical quibble which has been often used to cover the Turkish responsibility over Armenian genocide is that the genocide convention was not existing at that time when those heinous crimes were occurred. However the prohibition of international law is in inherent part of peremptory norms ( JusCogens ) in international law  which binds all the states to eliminate such crimes and bring the perpetrators before justice. Regarding the state responsibility of Turkey as the liable party who took the initiatives of obliterating Armenian population from its territory, it is interesting to observe that Ottoman rule was ceased to exist after their defeat of First World War and the emergence of Kemal Ataturk’s secular Turkey denied accepting the responsibilities for such acts occurred in the past and pay compensation for the victim unlike how Germany felt humiliated on their Nazi past after Second World War and adopted a policy of providing compensation for the descendants. Instead of moving to embrace the guiltiness of the past, the republic of Turkey seemed to have negated the factual reality from its masses through various methods. As an example when the whole Armenian diaspora around the world commemorated  103rd anniversary last year, Turkish president declared bringing  genocide charges against Turkey is akin to “blackmailing” his country. Moreover the creating a public discourse about their notorious imperial past of Ottoman Empire has been completely trampled by legal apparatus of Turkey as Article 301 of current penal code of Turkey has penalized criticizing Turkishness as a criminal offence. Many journalists and activists including Turkish bestselling novelist OrhanPamuk were reprimanded in Turkey under this outrageous section of Turkish penal code, because they had audacity to condemn the atrocities took place in the past against Armenians lived in Ottoman territory.

Tracing the state responsibility of modern Turkey for the acts occurred in the past from international law perspective drives modern day scholars for a labyrinth to seek the connectivity of the past and state responsibility. Legal historian VahagnAvedian has suggested in his article titled State Identity, Continuity, andResponsibility: The OttomanEmpire, the Republic of Turkeyand the Armenian Genocide” the responsibility lies in modern Turkey as it is the continuation of Ottoman Empire and his contention is based on the fact that only some minor changes happened when the republic replaced the empire. He shows many of those accused of war crimes and illegal confiscations were elevated to high positions in the republic and almost none was convicted for the committed internationally wrongful acts.

The lack of solid evidence and constant denial of Turkish government in both past and present has always hindered the threshold of creating genocide charges for the brutal acts committed against Armenian population, nevertheless the evidence left by some witnesses show the exact intent of Ottoman regime to eradicate Armenian community from their empire. As an example the memories written by American consulate in HarputMr.Leslie Davis provide solid evidence of the horrendous massacre of Armenian civilians in the province of Harput. When it comes to tracing the intentional element of carrying out such heinous acts it is clear that orders stemmed from the authorities of Ottoman Empire to preserve its purity and the background before the events took place demonstrate the fact that Ottomans possessed the clear intention getting rid of its Armenian community. Since the individual responsibility lies in state ambiguity to prove today as all the responsible persons for Armenian genocide are dead and gone, the concern of state responsibility can be an ideal tool to use against Turkey from international legal perspective. In the context of bringing Turkey before justice the role of European Court of Human Rights can be taken as an ideal example as both Turkey and present day Armenia are members of the court. However due to the total absence of cases for the Armenian Genocide,the ECHR could draw arguments from other supranationalcourts where it is encouraged to foment dialogue between thecourts’ judges. Indeed, even functionally specialized tribunalsremain part of an integrated and interconnected system and haverecourse to the same basic sources of international law.

All in all the attempt of proving Turkey’s responsibility international law by using available remedies through ICJ, ECHR of International Criminal Court seem to be twilight as I pointed above due to lack of clear evidence and other anomalies, yet the justice for the victims only can be rendered by going for a mutual reconciliation between modern state of Armenia and Republic of Turkey. The current camaraderie between France and German has shown us the one bitter enemies can become closer friends through good actions which eventually heal the memories of past and as it has been more than 100 years since this heinous crimes took place against Armenian people, Turkey should at least declare a note of apology for the victims and I believe such an act coming from the state whish was responsible for the actions would make more sense than grappling with vague circumstances under international law to prove justice.

PunsaraAmarasinghe is a PhD researcher in Institute of Law and Politics at ScuolaSuperioreSant Anna in Pisa, Italy. He held a research fellowship in department of public international law at Higher School of Economics in Moscow and served as a guest lecturer at faculty of arts, University of Colombo, Sri Lanka. He can be reached at punsaraprint10@gmail.com

Anastasia Glazova is a PhD researcher in Faculty of Law in Higher School of Economics in Moscow. Her research areas include international law, international maritime law, law of the sea and international human rights law. She can be reached at angla.1892@mail.ru


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One Comment

  1. The authors have raised an important historical event almost forgotten today.

    It is patently ridiculous, irrational and unbecoming of the Turkish government to deny even today the veracity of the Armenian massacre that began from April 24, 1915 [the mass arrest in Constantinople (Istanbul) of male Armenian intellectuals ending in their extermination after deportation to Ankara region] leading to a total genocide of 1.5 million Armenians including women and children under Ottoman Empire. These Armenians were Ottoman Empire subjects.

    A less said story in this connection is that the German Army officers were live witnesses to this massacre/genocide, silent spectators doing nothing about it, even though the murdered Armenians were Christians like them. Again, Hitler, who actively fought in WWI took his genocide textbook lessons from the Armenian holocaust to later use against the Jews – the deportation style, concentration camps, including probably gas poisoning methods etc.

    As late as 2005, despite all Turkish official denial, the International Association of Genocide Scholars (IAGS) confirmed and condemned the Turkish position to clearly state that the “Young Turk government (of Ottoman Empire) indeed began a systematic genocide of its ‘Armenian citizens’ ”, corroborated 2 years later by a letter[34] signed by 53 Nobel Laureates, organised by the Elie Wiesel Foundation for Humanity “re-affirming the Genocide Scholars’ conclusion that the 1915 killings of Armenians constituted genocide.” (Wikipedia).

    The Turkish authorities might want others to believe that in Ottoman Empire’s dhimmi system minorities like Christians and Jews enjoyed relative freedoms, but on close analysis turns out a farce, because the dhimmi system based on Pact of Umar did prohibit the minorities from constructing new worship places and were looked upon as “infidels”(Turkish –gavours), effectively a second-class citizen status given only.
    Less noticed too are the Armenian massacres preceding the WWI Armenian Genocide, notably, Hamidian massacres 1894–1896 (esp. the one at Erzurum in 1895), destroying anywhere between 100,000 and 300,000 lives, and the Adana massacre of 1909 over 15,000 to 30,000 Armenians killed.

    Today, with a conservative government in power, there is hardly any hope of a Turkish admission. Unlike in history, Armenia today is an independent country and Armenians all over the world are a well-to-do diaspora. Mr. Erdogan may want to rethink the option whether such an official admission will help rescue his falling international image.

    George Chakko, former U.N. correspondent, now retiree in Vienna, Austria.
    Vienna, 29/ 04/ 2019 16:40 hrs CET