The Armenian cause and International law
Author: Alfred de Zayas
8 May 2011 – Issue : 934
Geneva. Murder has been a sin since Cain killed Abel, long before the
first attempts by lawyers to codify penal law, before the Hammurabi
and other ancient codes. More fundamentally, murder is a crime by
virtue of natural law, which is prior to and superior to positivistic
law. Crimes against humanity and civilization were crimes before the
British, French and Russian note condemned the Armenian massacres in
1915(1). Genocide was a crime before Raphael Lemkin coined the term in
1944 (2).
According to article 38 of the Statute of the International Court of
Justice, general principles of law are a principal source of law. Not
only positivistic law – not only treaties, protocols and charters –
but also the immanent principles of law are sources of law before the
ICJ and can be invoked. Among such principles are `ex injuria non
oritur jus’ which lays down the rule that out of a violation of law no
new law can emerge and no rights can be derived. This is a basic
principle of justice – and of common sense. Another general principle
of law is `ubi jus, ibi remedium’, where there is law, there is also a
remedy, in other words, where there has been a violation of law, there
must be restitution to the victims. This principle was reaffirmed by
the Permanent Court of International Justice in its famous judgement
in the Chorzow Factory Case in 1928. Another general principle is that
the thief cannot keep the fruits of the crime. Another principle
stipulates that the law must be applied in good faith, uniformly, not
selectively. Thus, there is no international law à la carte.
And yet there are those who claim that the Armenians have no
justiciable rights, because the Genocide Convention was only adopted
1948, more than thirty years after the Armenian genocide, and because
treaties are not normally applied retroactively. This, of course, is
a fallacy, because the Genocide Convention was drafted and adopted
precisely in the light of the Armenian genocide and in the light of
the Holocaust. Not only the Armenian Genocide but also the Holocaust
predated the Convention, and no one would question the legitimacy of
the claims of the survivors and descendants of the victims of the
Holocaust, simply because the Nazi atrocities were committed before
the entry into force of the Genocide convention. Moreover, this
argumentation is a kind of red herring, intended to confuse and to
distract attention from the legal basis of the Armenian claims.
Indeed, the rights of the Armenians do not derive from the Genocide
Convention. Rather: the Genocide Convention strengthens the
pre-existing rights of the Armenian to recognition as victims, to
restitution and compensation (3).
Articles 144 and 230 of the Treaty of Sèvres , signed on 10 August
1920 by four representatives of the Ottoman Sultan Mehmed VI,
recognized the rights of the survivors of the extermination campaign
against the Christian minorities of the Empire, including the
Armenians, the Greeks from Pontos, the Chaldeo-Assyrians, and affirmed
the obligation of the Turkish State to investigate these crimes and
punish the guilty. Article 144 stipulated in part:
`The Turkish Government recognises the injustice of the law of 1915
relating to Abandoned Properties (Emval-i-Metroukeh), and of the
supplementary provisions thereof, and declares them to be null and
void, in the past as in the future. The Turkish Government solemnly
undertakes to facilitate to the greatest possible extent the return to
their homes and re-establishment in their businesses of the Turkish
subjects of non-Turkish race who have been forcibly driven from their
homes by fear of massacre or any other form of pressure since January
1, 1914. It recognises that any immovable or movable property of the
said Turkish subjects or of the communities to which they belong,
which can be recovered, must be restored to them as soon as possible,
in whatever hands it may be found…’
Article 230 stipulated in part:
`The Turkish Government undertakes to 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 Turkish Empire on
August 1, 1914. The Allied Powers reserve to themselves the right to
designate the tribunal which shall try the persons so accused, and the
Turkish Government undertakes to recognise such tribunal….’
Even though the League of Nations never established an international
criminal tribunal to try the Turkish perpetrators of the genocide
against the Armenians and other Christian minorities, numerous trials
under Turkish law did take place in Istanbul in 1919, even before the
treaty of Sèvres was signed. The Turkish authorities conducted these
trials against Ottoman officials involved in the genocide pursuant to
the Ottoman penal code. Many were convicted and three persons were
executed.
The Treaty of Sèvres, however, was not implemented, because of the
coup d’état against the Sultan conducted by a Turkish general, Mustafa
Kemal, who not only overthrew the Sultan but proceeded to wage war
against the Greeks and the British, push them out of Anatolia and
negotiate a new Peace Treaty with the Allies, which ensured impunity
for the thousands of Turkish officials, officers and soldiers involved
in the massacres.
To deny that the Armenian massacres amounted to genocide manifests
both ignorance of the facts and bad faith. There is no doubt that the
Armenian genocide was many times worse than the ethnic cleansing that
occurred in the former Yugoslavia in the 1990s, a crime which the UN
General Assembly in its resolution 47/121 (1992) considered `a form of
genocide’. There is no doubt that the massacres of the Armenians were
many times worse than the massacre of Srebrenica, which the
International Criminal Tribunal for the Former Yugoslavia and the
International Court of Justice condemned as genocide.
But let us return to the general principle of law ubi jus ibi
remedium. What is of relevance today is not the punishment of the
guilty, because no person criminally responsible for the massacres is
still alive. What is crucial is the right to the Armenian homeland,
which entails the right to return and the right to restitution and
compensation. In this context it is relevant to cite the final Report
of the United Nations Special Rapporteur on the Human Rights
Dimensions of Population Transfers, Awn Shawkat Al Khasawneh (today a
judge at the ICJ).
The Declaration appended to the Report, which was formally adopted by
the Commission on Human Rights and by ECOSOC provides in article 8:
`Every person has the right to return voluntarily, and in safety and
dignity, to the country of origin and, within it, to the place of
origin or choice. The exercise of the right to return does not
preclude the victim’s right to adequate remedies, including
restoration of properties of which they were deprived in connection
with or as a result of population transfers, compensation for any
property that cannot be restored to them, and any other reparations
provided for in international law. ` Article 10 reiterates the erga
omnes obligation of all States not to recognize the consequences of
crime: `Where acts or omissions prohibited in the present
Declaration are committed, the international community as a whole and
individual States, are under an obligation: (a) not to recognize as
legal the situation created by such acts; (b) in ongoing situations,
to ensure the immediate cessation of the act and the reversal of the
harmful consequences; (c) not to render aid, assistance or support,
financial or otherwise, to the State which has committed or is
committing such act in the maintaining or strengthening of the
situation created by such act.'(4).
Similarly, the United Nations Basic Principles and Guidelines on the
Right to a Remedy, adopted by the General Assembly on 16 December
2005 stipulate in part in Article IX:
`19. Restitution should, whenever possible, restore the victim to the
original situation before the gross violations of international human
rights law or serious violations of international humanitarian law
occurred. Restitution includes, as appropriate: restoration of
liberty, enjoyment of human rights, identity, family life and
citizenship, return to one’s place of residence, restoration of
employment and return of property.
20. Compensation should be provided for any economically assessable
damage, as appropriate and proportional to the gravity of the
violation and the circumstances of each case, resulting from gross
violations of international human rights law and serious violations of
international humanitarian law, such as:
(a) Physical or mental harm;
(b) Lost opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Moral damage;
(e) Costs required for legal or expert assistance, medicine and
medical services, and psychological and social services.'(5)
Since there is no statute of limitations applicable in cases of
genocide and crimes against humanity, the Armenian claims to
restitution and compensation continue to be valid to this day. Most
importantly, however, the Armenians have a right to recognition as
victims of genocide. They have a right to truth (6) and a right to
historical memory. Such recognition is a fundamental human right and a
sine qua non to reconciliation. For decades the Armenians were victims
of silence. And indeed, the crime of silence is worse than that of
negationism. International law will ensure that truth and justice
shall prevail.
(1) Vahakn Dadrian, The History of the Armenian Genocide: Ethnic
Conflict from the Balkans to Anatolia to the Caucasus, ISBN
1571816666; `The Armenian Genocide and the Legal and Political Issues
in the Failure to Prevent or Punish the Crime’, 29 U. West L.A. Law
Review, 43.
(2) Alfred de Zayas , The Genocide against the Armenians 1915-1923 and
the Relevance of the 1948 Genocide Convention, Haigazian Univesity
Press, Lebanon 2010, ISBN13: 978-9953-475-15-8.
(3) Cf. Geoffrey Robertson, «Was there an Armenian Genocide ? » Legal
Opinion, 9 October 2009, London, ISBN 978-0-09564086-0-0.
(4) E/CN.4/Sub.2/1997/23.
(5)
(6);
UN Doc A/HRC/12/19, Report of the United Nations High Commissioner for
Human Rights on the Right to the truth (2009).