Nowadays, Turkey insists that the UN Convention on Genocide does not have retroactive effect and is not applicable. However, at the beginning of the 20th century, when the Armenians were being exterminated in their homeland by the Ottoman Empire, the nation’s extermination was unacceptable and was considered to be a crime against humanity according to the existing international law. “International and Comparative Law” Center has published a work about the bases of international-legal responsibilities of the Genocide. Iravaban.net had an interview with Mr. Taron Simonyan, Director and founding member of International and Comparative Law Center, PhD in Law.
-Mr. Simonyan, what grounds from the legal perspective existist for solution of genocide issue?
-Before talking about different mechanisms of solving the problem, first we should answer the question referring to what laws existed in the period, when the Ottoman Empire slaughtered the Armenians. It goes without saying that nowadays Turkey insists that the UN Convention on Genocide does not have retroactive effect and does not apply to the actions that took place in 1915 or even earlier, in 1914-1923. From this point of view, it is a little difficult for us to provide legal arguments, because justification of retroactivity is a difficult task. However, in our work, we were able to prove that 2 source of law existed at the time when these acts were committed. The first is the international customary law, which at the beginning of the 20th century prohibited such acts. Of course, the act was not specified as “genocide”, but the name is not only the word that causes obstacle, the crime as such was in the form of a crime against humanity. Moreover, when on 24 May, 1915 the countries of Entente applied to the Ottoman government, they wrote that actions against the humanity must stopped in the Ottoman Empire. And there are other such documents that prove the existence of the customary international law. And it is unambiguous evidence that still in the early 20th century the act had been prohibited by international law.
Moreover, we find that the treaty rights also existed and it also prohibited such acts. The basis for it is the document adopted after the Berlin summit, which referring to the resolution of the Armenian Question, clearly mark that the Ottoman Empire should apply all possible leverages to prevent all harassments and attempts against the life and property of Armenians.
In addition, the Hague conventions were adopted at the beginning of the 20th century also prohibited the implementation of such acts. The Ottoman Empire was a party to the documents, which univocally bind it and not allow to consider these actions as permitted by the international law. The same document provides Martens reservation. Martens Clause was introduced into the preamble to the Hague Convention. Martens was a lawyer who was raised the reservation, which reflects the spirit of international customary law. Martense Clause provides, “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.” Definitely, the public consciousness in the 20th century considered that such action would be considered a violation of international law.
When we specify and clarify the legal base that the Ottoman Empire in its last period, was obliged to comply with international law, and not perform criminal acts, we can proceed to the next stage.
– You mean it is about accountability?
– Yes, the next stage is to answer the question of who is the subject who should bear responsibility for adverse effects: Here comes the question of succession. Whether Turkey is the successor of the Ottoman Empire? Naturally, in this sense Turkey will hardly be happy to accept that it is the successor, but we have different leverage in our work, we found a mechanism which allows to prove the legal level of that succession.
The next step that needs to be done is to understand the possible mechanisms and structures of international law, by which Turkey can be brought to responsibility. Here the mechanisms are not so many, several possible options are: arbitration tribunals, which are established for definite cases and establish parties. Which means that we need to have the Turkey’s consent to be able to establish jointly a tribunal which will be able to resolve the issue of liability. Definitely we have a problem here.
There is another option as well. We can appeal to the UN International Court of Justice. Here the jurisdiction of the court should be accepted. If the Genocide Convention has had a retroactive effect we could have easily taken Turkeyto the international court, because by signing the UN Genocide Convention, the party also accept the jurisdiction of the UN’s International Court of Justice. But, of course, there is the problem of retroactivity and the problem of proving Convention retroactivity power.
On the other hand Turkey has made a declaration referring to that article of the Charter of the UN International Court of Justice which provide accepting of the jurisdiction of this Court. By the way, The Republic of Armenia has not come with such a declaration as well, which means that the countries can appeal to the International Court if both Armenia and Turkey come to an agreement with each other.
Another option is that the Republic of Armenia can apply to the International Court of Justice through the UN General Assembly with request to provide advisory opinion, for example about the international responsibility that the Republic of Turkey should bear.
But the question must be clearly formulated and refined, so that it will not be problematic for us in the future. And if there is a result in this case the next step that should follow must be the following: convince the General Assembly to apply with a majority vote to the International Court of Justice. This already is a political level.
– It seem that all three options listed imply a difficult way and are not particularly reliable.
– Ther is another instance as well, the European Court of Human Rights, where the former citizens of the Ottoman Empire and their successors who had been deprived of their property may submit claims against the Republic of Turkey. However prior to But before that court initiative they have toapply to the court in Turkey and demanding their ancestors’ property, and if rejected then apply to the ECHR.
– There have already been such complaints to the ECHR, are you aware of this cases?
-Large numbers of Western Armenians have already initiated such processes and some of them succeeded in restoring their ownership rights. In my opinion Turkey is not against returning the citizens’ property to the citizens but not to the state. That is by doing so, the Republic of Turkey will claim that they restored the citizens’ rights of ownership and thius met their obligations.
-Do you think that success in the restoration of the citizen’s rights of ownership will bring to the deadlock the process of the claims?
– We have never announced that only the Republic of Armenia should demand recognition of the Genocide. Individuals who were deprived of their rights or may be considered as successors of the injured are involved in this process as well. Naturally we are trying to assist the Republic of Armenia to be able to to come up with common interests.
I do not think that the number of people who are restoring their right to property is large. We should not forget the massacred 1.5 million Armenians who have no opportunity to recover their rights, and do not have heirs either. We are talking about people who managed to leave the empire and avoid massacre. There is also the issue of public liability, in case of individuals we speak about the private claims.
-How are the sanctions applied in international level, since there is a widespread viewpoint according to which the possibility of applying sanctions for the violations of international law is not realistic in case of powerful countries.
-Of course, there are no such mechanisms in international relations especially in international law as compared with the domestic legislature. The international law is the result of coordination of the will of the states. The state undertakes obligations and in case where it does not comply with the obligation, then it faces adverse consequences caused by other states.
Now if we are lucky and the UN International Court of Justice to adopt a decision requiring Turkey to implement a compensation of the victims or successors in Turkey and dare not to take that decision, then, of course, there is an appropriate sanction. Now, if we shall succeed and the UN International Court of Justice will decide that Turkey should realize some compensation to the Republic of Armenia and the victims’ successors and if Turkey dare not comply with this decision, then of course appropriate sanction will be applied. This is carried out by the UN Security Council. The members of the Security Council shall take a corresponding decision in order the Security Council to apply the sanction. In case when one of the permanent members of the Council uses the right of veto, then naturally the sanction will not apply. There is such a case, “Nicaragua v. United States,” in 1986, the United States lost the case, but as a permanent member of the Council the US used the right to vote, and, of course, the decision has not been made so far, the Security Council did not have any tool to make the USA to comply with the decision of the court.
– When raising the issues of recognition and compensation issues very often there are references to the Woodrow Wilson’s Arbitral Award. How important is this document from the legal point of view?
– Woodrow Wilson’s Arbitral Award is a part of the Treaty of Sevres. There are some problems connected with the Treaty of Sevres. Actually, the viewpoints of historians and lawyers greatly differ from each other. Thus there are some counter-arguments concerning the treaty. For example, the latter is considered to be a non-ratified international treaty. Besides, its activity was terminated by countries which signed the treaty, including the Republic of Armenia. Afterwards the Republic of Armenia signed the Treaty of Aleksandrapol, the Treaty of Kars which canceled the Treaty of Sevres. Generally saying at that very period, the country was devoid of sovereignty and in that very situation we had nothing to do but to sign those treaties which were not profitable for Armenia. Giving the privilege to the Treaty of Sevres does not mean that we should consider it the only document which would help us in solving the Armenian question. It is one of the possible option to solving the problem, but not the only one. If we consider it the only one, and if the arguments against that one are so strong that it could not be applied any longer, then it will turn out that we stayed with nothing.
Interview: Astghik Karapetyan