CAN SREBRENICA RULING BENEFIT TURKEY ON ARMENIAN ISSUE?

Journal of Turkish Weekly, Turkey
Feb 28 2007

The acquittal of Serbia on a charge of genocide was not easy for
Turkey, while it was unacceptable for the Bosnians who were direct
subjects of the worst massacre on European soil since World War II.

However, the judgment is still considered an important landmark in
international law.

The ruling of the UN International Court of Justice (ICJ) is
significant for it confirmed that a genocide had taken place in
Srebrenica and also that Serbia had the power to foresee and prevent
the slaughter, but had failed to use it. Moreover, the judges found
that Serbia failed to comply with its obligations to punish those
who carried out the genocide. All in all, however imperfect Monday’s
decision was, it might serve to clarify the definition of genocide and
the responsibility of states to prevent it in terms of international
law, which is very important for Turkey, a target of claims that
mass deportation of Armenians in 1915 at the hands of the Ottomans
was tantamount to genocide.

The decision also came at a time when the Turkish Foreign Ministry
is considering taking the case to the Court of International Justice,
and put an end to Armenian allegations.

Analysts underline that the law of the ICJ, founded in 1945, might
not prosecute crimes committed before 1948, when the Convention on
the Prevention and Punishment of the Crime of Genocide was adopted by
the UN General Assembly. Most say that although an acquittal decision
might be positive, ideally, the decision of an international judicial
body should not recognize the deportation as genocide. In a way, it
remains unclear whether the court ruling on Srebrenica is encouraging
or discouraging for Turkey to take the case to the Hague.

For Professor Huseyin Pazarcý from Ankara University’s Political
Science Department, the author of international law textbooks that
prepare Turkey’s future diplomats, it is hard to say whether the
decision was good or bad for Serbia. However, he believes that any
application to the ICJ regarding the Armenian genocide claims would
fall out of the scope of the 1948 UN convention on genocide, the
document which was the basis for the Srebrenica ruling.

"Normally, at least initially, on the principle of the non-retroactive
application of laws, Turkey’s case is outside the scope of the 1948
convention," Pazarcý explained, since the incidents resulting in
genocide claims happened in 1915.

Some experts, including political analyst Professor Huseyin Baðcý from
Middle East Technical University (ODTU) Department of International
Relations, said that the court ruling that what happened in Srebrenica
was genocide without holding Serbia directly responsible could signal
that in the event Turkey’s case were taken to the ICJ, the outcome
could be similar in terms of not attaching any retroactive political
or financial responsibility to Turkey.

Retired Ambassador Omer Engin Lutem, who currently heads the Crimes
against Humanity Department of the Eurasian Research Center (ASAM),
is also of the same opinion. In an interview with the ANKA news agency,
Lutem said the Armenians pursued putting the blame on Turkey, insisting
that Turkey was the successor of the Ottoman government.

"However, this ruling accuses the individuals involved, rather than
the state. This might mean that it has the potential to serve our
interest," Lutem said, adding that the case was likely to set up an
example ruling for future similar cases.

All experts emphasize that there is always the possibility of the
ICJ refusing to hear the Armenian genocide, since incidents before
1948 fall outside its scope.

"Normally, it shouldn’t be taking up such a suit," Lutem said.

However, Lutem expressed that a decision to acquit Turkey of a
genocide, but recognizing the forced deportation of Armenians at the
hands of Ottomans in 1915 could create a backlash.

"The legal statements should express that forced deportation was
essentially not genocide," he explained. In order to explain his
interpretation that the ruling does and can not have any significance
on Turkey’s Armenian question, Sabah columnist Erdal Þafak points out
to two crucial points in how the ICJ works. He notes, in contentious
cases, the ICJ produces a binding ruling between states that agree
to submit to the ruling of the court. In other words, Turkey would
need consent of the other party, Armenia, to apply. If the court,
based on the 1948 convention, rules that the application is valid,
then the party where the genocide claims originate has to document
concrete proof of systemic, organized and planned action to eradicate
an ethnic group, which is where Bosnia was weak in the current case,
Þafak notes.

In a case between Turkey and Armenia, it would be the job of Armenia to
prove that the deportations were genocide, which would not be easy. In
addition, for an international court ruling to set a precedent, at
least two or three similar rulings should come out. At the end of day,
it is almost impossible to express that the ruling has any significance
for Turkey’s case at all. The ruling is certainly a disappointment
to the Bosnian people — and to the Serbs to a certain extent —
and confusing for Turkey as its relevance to Turkey’s concerns about
the future of the Armenian question remains open to debate.

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