AN OPEN LETTER TO US PRESIDENT BARACK OBAMA

Hurriyet
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April 20 2010
Turkey

Dear Mr. President,

It would not be an exaggerated statement if I say that your
exceptionally impressive speech to the Turkish Grand National Assembly
on April 6, 2009, captured the hearts and minds of the Turkish people.

This speech, and the other statements you made during your visit,
left a deep imprint on Turkish public opinion, conveying the belief
that you look at the world and Turkey with goodwill and without
adverse prejudices.

Unfortunately, the subsequent statement that you made April 24
regarding the events of 1915 in eastern Anatolia seriously disappointed
the Turkish people and cast a shadow on the positive impression formed
during your visit. Although your statement omitted the highly charged
word "genocide," you twice employed the expression "metz yeghern"
(Meds Yeghern), which is the exact translation of "genocide" in the
Armenian language.

Furthermore, the statement said, "Each year, we pause to remember the
1.5 million Armenians who were subsequently massacred or marched to
death in the final days of the Ottoman Empire." Thereby, in effect,
it reprised the expression "Armenian genocide" that you used frequently
during your election campaign.

Mr. President, in addition to being a world statesman of the first
rank, you are also justifiably regarded as a distinguished scholar
of law, having graduated from the world-renown Harvard Law School and
having taught law as a senior lecturer at a prominent university. In
light of these qualifications, we are particularly perplexed by your
characterizations of historically controversial events that took
place 95 years ago in terms that are incompatible with the universal
principles of law as well as provisions of the U.S. Constitution and
U.S. national law.

"Genocide" is an international crime codified in an international legal
instrument, the Convention on the Prevention and Punishment of the
Crime of Genocide. This was adopted unanimously by the United Nations
General Assembly in 1948 and subsequently became the supreme law of
the United States, as stipulated by Article VI of the Constitution
pursuant to its ratification by the U.S. Senate.

Article II of the Genocide Convention delineates the crime of
"genocide" and prescribes the objective/material and subjective/mental
elements that should be proven to show the existence of the
crime. To incriminate a person of the crime of "genocide" or for state
responsibility to arise, it must also be proven that the crime has been
committed with specific intent, and a competent court must ascertain
that the crime has been perpetrated. The Convention’s Article VI
specifies that the competent judicial authority is the competent court
of the state in the territory of which the alleged act was committed,
or an international penal tribunal, the jurisdiction of which has
been accepted by the parties. Article IX of the Convention provides
that the states can take disputes on matters relating to "genocide"
that arise between them to the International Court of Justice.

Mr. President, consequently, unless the existence of the material and
mental elements of the crime, as well as its execution with specific
intent, have been proven, and unless the perpetration of the crime
has been determined by a competent court, a charge of "genocide"
leveled against a person or a state has no legal value and only
constitutes a defamation.

Until today, no accused has ever been incriminated in the crime
of "genocide" or a "crime against humanity," a crime as odious as
"genocide," without a decision by a competent international criminal
court. Indeed, the Nuremberg International Military Tribunal, after
a long trial process, found guilty the leaders of the German Nazis
accused of "crimes against humanity" and sentenced 22 of them to
death. Furthermore, those incriminated of "genocide" for the events
that occurred during the Rwanda and Yugoslavia conflicts have been
tried and convicted by the Rwanda and Yugoslavia international penal
tribunals.

As is known, both tribunals are ad-hoc courts that had been set up
by decisions of the U.N. Security Council. Saddam Hussein, who was
charged with crimes against humanity, was tried and convicted in an
Iraqi Special Court established in line with the principle of due
process of law. Recently, the legal action brought by Bosnia and
Herzegovina against Serbia was heard by the International Court of
Justice. In its decision in February 2007, the court reaffirmed that
genocide was committed at Srebrenica, but has not convicted the state
of Serbia of having committed genocide.

Mr. President, I am certain that you hold dear the concept of the
presumption of innocence, whose roots go back to the Magna Carta.

Article 11 of the Universal Declaration of Human Rights, which was
unanimously adopted in 1948 by the United Nations General Assembly,
describes the principle of the presumption of innocence as follows:

"(1) Everyone charged with a penal offense has the right to be presumed
innocent until proven guilty according to law in a public trial at
which he has had all the guarantees necessary for his defense.

"(2) No one shall be held guilty of any penal offence on account of
any act or omission which did not constitute a penal offense, under
national or international law, at the time when it was committed. Nor
shall a heavier penalty be imposed than the one that was applicable
at the time the penal offense was committed."

This principle is set forth in the European Human Rights Convention,
Article 6, paragraph 2:

"Everyone charged with a criminal offense shall be presumed innocent
until proven guilty according to law."

The principle of presumption of innocence is also guaranteed by the
Fifth Amendment of the U.S. Constitution, which prescribes that "No
person shall be held to answer for a capital, or otherwise infamous
crime" unless tried fairly and indicted by a court.

Therefore, Mr. President, wouldn’t it be a gross injustice and a
grave violation of the principle of the presumption of innocence to
heap accusations on Turkey for disputed events of the past?

Mr. President, as you would agree, the principle of legality, which
is as old as the concept of law itself, is a basic concept in both
international and national justice. According to this principle,
an act is not recognized as a crime unless it was legally defined
before the act was committed. "Genocide," as a word, as a concept and
as a codified international crime, did not exist in 1915. After being
defined for the first time by the U.N. General Assembly document 96
(I) on Dec. 11, 1946, it was codified by the U.N. Genocide Convention
on Dec. 9, 1948.

Consequently Mr. President, by leveling accusations of the crime of
"genocide" (directly during your campaign speeches and indirectly in
your 2009 remembrance day statement), haven’t you contravened the two
dimensions of this principle expressed by the maxims "nullum crimen
sine lege" and "nulla poena sine lege" – there is no crime without
a law, and no punishment without a law?

Mr. President, the judgments made in your statement appear to us
to violate the spirit of the U.S. Constitution, which espouses the
principle of legality in its Article I, Section 9 by forbidding the
passage of ex-post-facto criminal laws and bans retrospective criminal
sanction. We also must note that President Thomas Jefferson, in his
Aug. 13, 1821, letter to Isaac McPherson, asserted that "ex-post-facto
laws are against natural right." This shows that an abhorrence of
retroactive application of laws in criminal justice has a deep-rooted
legal history in the United States.

Moreover, the principle of legality is equally prescribed by Article 28
of the 1969 Vienna Convention of the Law of Treaties under the heading,
"Non-Retroactivity of the Treaties."

Mr. President, in light of the foregoing irrefutable points, certain
concerns and questions inescapably arise.

What are we to infer from the statement you might make this year
regarding the disputed events of 1915, if this statement includes
the word "genocide," or, echoing your 2009 statement, employs the
word’s exact Armenian translation, "metz yeghern" (Meds Yeghern),
and alleges the massacre of the 1.5 million Armenians?

Wouldn’t such a statement flagrantly violate and flout universal
principles of law, international law and the U.S. Constitution? And
to what possible worthy end?

Wouldn’t it constitute, for the Turkish people and their forebears,
a judgment without trial?

Wouldn’t the Turkish people consider this gross injustice inflicted
on them the outcome of narrow domestic political calculus, heedless
of basic fairness and shared U.S.-Turkish interests?

Wouldn’t the imputation of historical guilt upon the people of Turkey
and upon their forebears, who themselves suffered enormous losses
and were exposed to unbearable pains during those tragic times, be at
utter odds with your stated proposal before our Parliament to build
a model partnership between the United States and Turkey?

Mr. President, historian Arthur Ponsonby penetratingly discusses
the terrible and enduring effects of war propaganda that persist for
generations in his "Falsehood in Wartime":

"The injection of the poison of hatred into men’s minds by means of
falsehood is a greater evil in wartime than the actual loss of life.

The defilement of the human soul is worse than the destruction of
the human body."

I think that Ponsonby’s cogent words are valid now and will remain
valid in the future. What we need today, more than ever, is an
international environment that we can hand over to our children
and future generations – a world where peace, security, tolerance,
friendship and goodwill reign, instead of prejudices, hatred and
passions for revenge.

For this reason, Mr. President, I must urge you to avoid being
influenced by superficial stereotypes regarding the events of 1915
that are rooted in large part in the deliberate wartime propaganda
efforts of the World War I Allies. I ask that you foster impartiality
and avoid contributing to a deepening of the wounds suffered by the
Turkish and Armenian nations in this enormous human tragedy.

In this context, the best course for the U.S. should be, in line
with an ethical and evenhanded approach, to encourage the parties
to bring to light and to clarify the obscure and ambiguous aspects
of the conflict between the Ottoman state and the Armenians. This
would best be accomplished by employing a common, scientifically
disciplined research effort by Turks and Armenians regarding their
mutual history and by completely opening their archives to examination.

I am submitting these views for your consideration, trusting that
you will examine them with objectivity and fairness.

With my deepest respect,

Dr. Å~^ukru M. Elekdag

* Å~^ukru Elekdag is a Republican People’s Party, or CHP, deputy from
Istanbul and a former ambassador to the United States