Pulat Tacar has been Co-Chairperson of the Turkish National Commission for UNESCO (1995–2006), Ambassador of Turkey to UNESCO (1989–1995), Ambassador of Turkey to the European Communities (1984–1987) and to Jakarta (1981–1984). Maxime Gauin is a researcher at the International Strategic Research Organization (USAK, Ankara) and a PhD candidate at the Middle East Technical University. In this post, which summarises their article published in (2012) 23 EJIL 821-835, they respond to the piece by Vahagn Avedian.
The Armenian question is especially sensitive, not least because of the long accumulation of prejudices against Turks, Armenian terrorism in 1973–1991, the Armenian invasion and occupation of western Azerbaijan since 1992, and more recently the virulent anti-Turkish stance of Anders Breivik in his manifesto and the various campaigns or attacks by Armenian nationalists. So, it is better to ease the tensions instead to fuel them.
In this response to Vahagn Avedian’s EJIL article and post, we would like to raise two issues: Is genocide a pertinent concept to define the fate of the Ottoman Armenians during WWI?; and has the Republic of Turkey legal responsibilities for this fate?
The Terms of the Dispute
The term ‘genocide’ is a legal term; it describes a crime specifically defined by the 1948 Genocide Convention and must be addressed accordingly. The existence of the crime of genocide can be legally determined only by the judges of a competent tribunal on the basis of the prescribed legal criteria and after a fair and impartial trial. The Genocide Convention does not allow for convictions on the grounds of genocide by legislatures, scholars, pamphleteers, politicians, or others.
The most important characteristic of the Genocide Convention is that for the crime of genocide to exist, acts must have been committed with the intent to destroy the protected groups as such. The mental or subjective element (mens rea) is a constituent of that crime. The concept of ‘general intent’, which is valid for ordinary crimes, is inadequate in the identification of acts of genocide.
According to the Genocide Convention, the intent to destroy a group must be in the form of ‘special intent’, dolus specialis, and beyond any doubt. This crucial aspect of the crime of genocide has been underlined by the International Court of Justice (ICJ) in paragraph 187 of its judgment in Bosnia Herzegovina v. Serbia and Montenegro. With the exception of Srebrenica, the Court was not convinced that those killings were accompanied by specific intent on the part of the perpetrators to destroy the group of Bosnian Muslims in whole or in part. So, if the ‘special intent’ is not proven beyond all doubt, judicially an act cannot be qualified as genocide. The cases of civil war, rebellion, and mutual killings should not be confused with the crime of genocide.
These principles being recalled, it must be said that Turkey does not deny the existence of crimes, including assassinations and massacres, against Ottoman Armenians during WWI. To give recent examples, the statements of Mr. Ahmet Davutoğlu, the Turkish minister of Foreign Affairs, in December 2011 and January 2012, are very clear.
The Absence of Genocidal Intent
The legal principle ne bis in idem means that no person shall be tried with respect to conduct which formed the basis of crimes for which the person has already been convicted or acquitted by a competent court.
Actually, the Ottoman government did not give impunity to the perpetrators of crimes against the relocated Armenians. In 1915, more than 20 Muslims were sentenced to death and executed for such crimes. Following a report by Talat Pasha, the Ottoman government created three commissions to investigate the complaints of Armenians and the denunciations of civil servants. As a result, in March–April 1916, 1,673 Muslims – including captains, first and second lieutenants, commanders of gendarme squads, police superintendents, and mayors – were remanded to courts martial. Sixty-seven were sentenced to death, 524 were sentenced to jail, and 68 received other punishments such as forced labour, imprisonment in forts, and exile. If the intent of the Ottoman government was to exterminate the Armenians, why did the prosecute those who committed crimes against Armenians? And since Vahagn Avedian stresses the alleged ‘confiscation’ of Armenian property by the Ottoman state, it is not unimportant to notice that several people were sentenced to death for plunder, and that other death sentences were justified not only by murders, but also by robberies.
Moreover, the existence of the crime of genocide must be decided upon by a competent tribunal. Article VI of the 1948 Genocide Convention reads as follows:
“Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”
The single attempt for an international tribunal regarding the event of 1915-16 was the investigation of a British prosecutor against 144 Ottoman officials interned in Malta, from 1919 to 1921. This investigation, in the British, American and Armenian sources, in addition to the seized Ottoman documents, was in vain. No evidence was found of a governmental intent to destroy the Ottoman Armenian community by massacres and starvation.
The International Treaties: pacta sunt servanda
After World War I and the War of Liberation, Turkey concluded international agreements to put an end to the wars and insurgencies which had disrupted the country’s and region’s peace since 1914. To ignore these agreements and declarations contradicts the lex specialis principle provided for in Article 55 of the Articles on Responsibility of States for Internationally Wrongful Acts and also the principle of pacta sunt servanda.
The Treaty of Lausanne, signed on 24 July 1923, included a declaration of amnesty according to which Turkish nationals, and reciprocally nationals of the other signatory powers of the Treaty of Lausanne, who were arrested, prosecuted, or sentenced prior to 20 November 1922 benefited from an amnesty. The bilateral agreements of Kars and Ankara, signed in October 1921 also included amnesties for the war crimes. Armenian, Russian and Greek war criminals benefited also of these amnesties. Articles 46–63 of the Lausanne Treaty were about the liquidation of the debts of the Ottoman State. The Republic of Turkey paid all the Ottoman debts.
The Republic of Turkey signed with U.S. (which was not at war against the Ottoman Empire) a bilateral agreement on 24 December 1923. On this basis, Turkey paid US$899,840 (dollars of the 1930s) to the US government for war damages. The Ottoman citizens naturalized Americans could present their grievances, too. It is remarkable that, in this perspective, that not a single claimant with an Armenian name was considered by the American civil servants to have made a credible case of seizure and/or destruction of property.
As a result, it is safe to assert that Turkey has legally discharged its responsibilities.
The fact that Turkey — regarded or not as a successor state of the Ottoman Empire — does not recognize the 1915–1916 events as a crime of genocide does not violate the 1948 Convention. One should emphasize that if Armenia had seen the slightest evidence of Turkey’s responsibility in the matter, it would have attempted to bring the case before the ICJ many years ago.