magnify
Home EJIL Analysis A Reply to Vahagn Avedian – State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

A Reply to Vahagn Avedian – State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Published on November 13, 2012        Author: 

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.

Conclusion

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.

Print Friendly
 

24 Responses

  1. Ivo

    Interesting discussion, a pity that it is so much coloured by nationalistic tones…
    Conceptually, there has been quite a lot of work on the identity (or not) of the Ottoman Empire and Turkey (see for instance E. Zamuner, Le rapport entre Empire ottoman et République turque face au droit international, in Journal of the History of International Law, vol. 6, 2004) – it would be nice to explore issues of international responsibility in the light of these fact-driven analyses.

  2. Maxime Gauin

    Thank you for your comment, but I wonder where you found “nationalism” in the article which I wrote with Pulat Tacar. I work in Turkey, but I have no familial links in this country, and my work on the Armenian issue is precisely devoted to eliminate the misconceptions coming from any nationalism (in the pejorative sense of the word).

  3. Thank you and congratulations to EJIL for publishing the above article by Maxime Gauin and Pulat Tacar as a reply to the awful article by Vahagn Avedian. This definitely adds to the reputation of the European Journal of International Law as an independent and unbiased journal, and perhaps makes people think twice before believing in the propaganda and unsubstatiated claims.It would be helpful to read further analysis by these authors.

    It is certainly welcomed in my circles by open minded people who seek historical truths.

    Yours,

    Betula Nelson

  4. CORRECTED FORM – Thank you and congratulations to EJIL for publishing the above article by Maxime Gauin and Pulat Tacar as a reply to the awful article by Vahagn Avedian. This definitely adds to the reputation of the European Journal of International Law as an independent and unbiased journal, and perhaps makes people think twice before believing in the propaganda and unsubstatiated claims.It would be helpful to read further analysis by these authors.

    It is certainly welcomed in my circles by open minded people who seek historical truths.

  5. Armed with little more than cliches and slogans, Vahagn Avedian butchers history scholarship. Armenian’s approach to Turkish-Armenian conflict is delusional and replete withj errors, omissions, misrepresentations, fabrications, and self-praise. One reads nothing about Armenian hate crimes, war crimes, revolts, treason, terrorism, territorial demands and the Turkish victims of atrocities committed by Armenians between 1890-1922. Well, what’s left ? What’s left is wild Armenian accusations, discredited pseudo-scholarly arguments, unjustifiable political claims, anti-Turkish bias, and anti-Muslim bigotry, all persistently contributing to the formation of a racist attitude fueling a genocide industry. For these reasons, I thank Dr. Pulat Tacar and PhD Candidate Maxime Gauin for definitively elucidating the legal and historical facts behind the Armenian writers incredibly dishonest and deceptive account of Turkish Armenian conflict.

  6. Mustafa Altintas

    Tacar and Gauin bring up a valid point. If genocide is a legal term, all arguments should be made in a court (that has jurisdiction over the issue). This way, the PR games and politics that ride on the issue can cease. Republic of Armenia, as the primary party to the claims, should seek this avenue.

  7. Hans

    Very good article. It devastates the baseless Armenian state propaganda allegations! Armenians committed genocide against almost 1 million Turks in Anatolia.

  8. najmadin

    hi
    it was interesting to me but Vahagn Avedian article did not considered the Ottoman Empire and Turkey acts against Armenian as genocide but he emphasized explicitly that he examine the issues from the perspective of internationally wrongful acts more generally.

  9. Javid H

    Special thanks to EJIL for publishing this important article. Instead of the legislative lobbying to mislead public opinion with the anti-Turk paranoia or ethno-nationalist historical fabrications, it is time to form an independent panel of historians that can come to a fair conclusion on these atrocities of World War I. Otherwise, the current Armenian strategy is starting to backfire: http://open.nysenate.gov/legislation/bill/J3784-2011, as more skeletons start coming out of the closet. And it would not hurt to address more recent and current issues, such as the ongoing occupation of the fifth of Azerbaijan and the expulsion of 800,000 Azerbaijanis from their homes by the Armed Forces of Armenia less than 20 years ago.

  10. K. Onef

    Well, obviously no criminal tribunal will ever handle the alleged Armenian genocide case. All the perpetrators of the atrocities are long gone. However, saying that no genocide took place because no tribunal has ever pronounced so (obviously, before the 1948 Convention), is a bit like saying that Hitler was innocent because he never stood trial in person. I do believe there is a serious case to be examined whether acts committed by Turks against Armenians would fall under the definition of genocide as laid down in the 1948 Convention.

    My question to the commentators above, and perhaps the authors: do you believe that the Turkish government would agree to a some kind of an impartial truth commission composed of distinguished genocide scholars (i.e. prof. Schabas) that would examine the available evidence and settle this historic matter once and for all? I have my doubts, but I remain to be persuaded otherwise.

  11. Thank you najmadin!

    At last some one who has actually read the article!

    It’s a petty that people are stuck at the surname of the author (or actually hiding behind it) when they dismiss the essence of the argumentation by referring the ethnicity of the surname.

    I did indeed explicitly point out that the article does not “confine itself to the crime of genocide per se, but
    the internationally wrongful acts”. However, the main (and to a high extent, the only) argument in the reply as well as the comments here are still in regard to the UN definition as well as the other comments trying to lead the discussion astray and away from the core of the issue: committed internationally wrongful acts and the issue of continuity and responsibility of the perpetrators of mentioned wrongful acts.

    As for the historiography, I respectfully refer to the sources and the literature presented in the article and have no intention in engaging in discussing them, thus contributing to the fundamental reason of the Turkish denial, pointed out in the introductory words of my article, i.e. freezing the discussion at that level and avoiding the consequences of a recognition.

  12. Maxime Gauin

    I am respectfully inviting Mr. Avedian to read again the reply, both in the short and in the long version. This reply is not limited to the UN definition of genocide, albeit it is a crucial part of the discussion. The question of the amnesty included in the Lausanne, Kars and Ankara treaties, as well as the payment of the debts and war damages, for instance, are also mentioned — and once again, the amnesties did not benefit only to Muslim criminals, but also to Armenian, Russian and Greek ones.
    The repression of crimes committed during the relocation, by the CUP government, is not only an argument against the genocide label itself, but also, more generally, against the allegation of criminal designs by this government against its Ottoman population. And according to the principle “ne bis in idem”, 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.

  13. EGAE

    Maxime Gauin totaly misses the point of Vahagn Avedians articel. By asking a question about why Turkey are not in court he goes around the crime itself. Why do not the palestienians prosecute Israel? Why do not the Kurds prosecute Turkey? Why not prosecute Sudanese leaders for genocide trot that there is a prosecution? The answer is that the strongest have an ability to forge alliances in order to avoid responsebility. And Gauin put the denialism of the 1915 to a new level of denialism .

  14. EGAE

    PS. It’s a bit embarrassing that Maxime Gauin use mass killer Brevik as an argument.

  15. Well, the reply definitely does what you describe, i.e. avoiding the core of my article. This is done by picking the beginning and the aftermath, leaving the crucial mid section unanswered. By putting the entire responsibility on the CUP regime (actually a very small clique who all were in fact later elevated to national heroes, thus questioning that very condemnation itself), the nationalist movement and more importantly the link between the new and the old Turkish government is totally lost in your article.

    Given the background, the continuation of the same wrongful acts by the insurgent movement which became the new regime at the negotiation tables in Lausanne, Moscow, Kars etc., it can’t be a surprise to anyone that the respective treaties included such an amnesty clause.

    My article was an explanation for why the Sèvres Treaty was replaced with the one in Lausanne and why the negotiating Turkish side in 1923 had no intention to do otherwise, since it would result in prosecuting a wide segment of the incumbent regime. This implies that it was futile to expect that the Turks would be able to prosecute themselves, but this would have been done by the victorious powers (much alike the parallel with the post WWII Germans and the Nuremberg Trials).

    With that said, I think I’m inclined to refer to my article, looking forward to a reply which does not look at the genocide definition or how the new Turkish state pardoned all committed acts, but argues the issue of State Identity, Continuity, and Responsibility in regard to Internationally Wrongful Acts within the context of the presented case.

  16. Maxime Gauin

    “By putting the entire responsibility on the CUP regime (actually a very small clique who all were in fact later elevated to national heroes, thus questioning that very condemnation itself)”
    I regret, but I do not understand quite well this part of the sentence. The CUP regime gave orders to prevent the crimes against Armenians during the relocation and punished many people who did not care about these orders.

    “the nationalist movement and more importantly the link between the new and the old Turkish government is totally lost in your article.”
    I can only disagree with this assertion, even more since I am the author of these lines of our article (full version):
    “The Kemalist movement was by no means hostile to the non-Muslims and was supported, not only by most of the Turkish Jews, but also by a portion of Istanbul’s Armenians, like the Karabetian Society and the Deputy Director General of the Ottoman Bank (promoted Director General during World War I), Berç Keresteciyan (1870–1949), future deputy of the Turkish National Assembly from 1935 to 1946.
    Contrary to the author’s false allegations, the National Liberation Government even tried to keep the Christian population of Cilicia at the end of 1921 – in vain, because of the Armenian nationalist propaganda. Similarly, the exodus of most of the Christians of western Anatolia is chiefly due to the scorched earth policy of the Greek army in 1922. Most of the allegations of ‘massacre’ against the National Liberation Movement were proven to be false.”

    I devoted a whole paper on the evacuation of Cilicia by France, the responsibilities of Armenian and Greek nationalists in the unneeded flow of refugees and the Franco-Kemalist attempts to keep the Christian populations in Cilicia, including the creation of joint commissions to take care of the emigrants’ properties (“How to Create a Problem of Refugees: the Evacuation of Cilicia by France and the Flow of Armenian Civilians (1921-1922),” “Review of Armenian Studies”, n° 25, 2012, pp. 67-101).

    A personality like Berç Keresteciyan (named Keresteciyan Türker after 1934; “Türker” means “the valorous Turk”), who started his carreer under Abdulhamid II, was promoted by the Young Turks, finished his public life as a MP of the Turkish Republic (1935-1946) and deceased of natural causes in his native city (Istanbul), being 79-years old, may be considered as an element of continuity, but hardly the kind of continuity alleged in your article and post.

  17. Peter J

    Reading Avedian’s text, it seems to me that the issue has already been examined by impartial instances:

    IAGS: http://www.genocidescholars.org/about-us/statements-resolutions

    While the issue has been examined from the UN Convention’s point of view by ICTJ, assigned to this by the Turkish side themselves: http://ictj.org/sites/default/files/ICTJ-Turkey-Armenian-Reconciliation-2002-English.pdf

    The report concludes: “the Events, viewed collectively, can thus be said to include all of the elements of the crime of genocide as defined in the Convention, and legal scholars as well as historians, politicians, journalists and other people would be justified in continuing to so describe them.”

    Why does yet another “independent” body try this issue? And why will Turkey react differently than they have done already to the previous statements? A highly rhetorical question…

  18. Armenians must own up to their hate crimes and war crimes and acknowledeg the resulting Turkish suffering and loss. As long as Armenians deceptively divert the attention of the world from Armenian complicity by screaming genocide, whipping up anti-Turkish bias and bigotry, there shall never be closure. Most Armenians deny Armenian terrorism. They deny Armenian revolts. They deny Armenian treason. They deny that Turks ever lost souls to Armenian atrocities. As long as there is breath in this body, I cannot let Armnenians continue to shamelessly con the world, while the Armenians are still committing the same crimes over and over in Karabagh in Azerbaijan today.

    America bombed Yugoslavia in 1998 to punish ethnic cleansing there. American invaded Iraq in 1991 to punish Saddam for aggression, atrocities, and plunder. It is curious that Armenia, which committed all of those crimes in Azerbaijan between 1992-1994, did not get punished. Worse, it got U.S. Aid to the tune of millions of dollars, rewarding war crimes and hate crimes committed by Armenia. How did this happen you ask? It happened because of Armenian propaganda, lies, slanders, screams, intimidation duping unsuspecting masses in the West with baseless nonsense like what the Armenian writer here promotes.

    I am still hopeful that there will be honest Armenian writers one day who will
    1) discuss Armenian propaganda, agitation terror, in that order, between 1862 ans 1922;

    2) describe Armenians revolts organized by by Armenakan (est 1882),Hunchack (est 1887), ARF (est 1890) and others;

    3) Armenian treason (how Armenians shamelessly donned invading enemy armies’ uniforms to attack their own government, state, country, citizens and neighbors)

    4) Others (I will go into if I have to).

    Armenian lies and crimes can only go so far. It is time they are exposed.

  19. Maxime Gauin

    “While the issue has been examined from the UN Convention’s point of view by ICTJ, assigned to this by the Turkish side themselves”
    The ICTJ made synthesis of Armenian arguments and did not pay any serious attention to the Turkish ones. The Turkish Armenian Reconciliation Commission disbanded without any result. The Armenian participants asked to the ICTJ to make a report. This report relies on discredited material, like the Memoirs of Morgenthau, contradicted by his proper archives. As far as I know, this report is and remains anonymous.

    “Reading Avedian’s text, it seems to me that the issue has already been examined by impartial instances:

    IAGS”
    To call the IAGS an impartial instance is highly questionable. His past chairman, Israel Charny, is a former professor of psychology, without any degree in history, law or political science, and has an extremely biased approach of the Turko-Armenian conflict. IAGS’ official journal even attacked moderate supporters of the “Armenian genocide” label, like Hilmar Kaiser. The review essay by Taner Akçam on Guenter Lewy’s “The Armenian Massacres in Ottoman Turkey” contains numerous deliberate distorsion and mistranslations. Etc.

  20. Maxime Gauin

    “My question to the commentators above, and perhaps the authors: do you believe that the Turkish government would agree to a some kind of an impartial truth commission composed of distinguished genocide scholars (i.e. prof. Schabas) that would examine the available evidence and settle this historic matter once and for all? ”
    In 2005, the Turkish government proposed to create a joint commission of historians to the Armenian government, which refused. In 2009, the Turko-Armenian protocols signed in Geneva included such an idea, but the Armenian Supreme Court decided that since the “genocide” is included in the Armenian Constitution, this issue cannot be debated. Nevertheless, Ankara has since 2004 supported the Vienna platform, which in 2009 published a large compilation of documents.
    These points are mentioned in our article, and we gave precise references.
    Since you speak of William Schabas (who does not support the “Armenian genocide” label anymore), I am glad to inform you that Mr. Schabas contributed to a special issue of “Middle East Critique” on the Armenian question, together with Tal Buenos, Edward J. Erickson, Yusuf Sarinay, David Saltzman and some others. http://www.tandfonline.com/toc/ccri20/20/3

  21. K. Onef

    Thank you for your reply. To be a bit more precise, I only gave prof. Schabas as an example of scholars who could possibly be included on such a panel. To my understanding, he advocates a very strict interpretation of the crime of genocide. But I will definitely look up his views on the Armenian tragedy.

  22. Peter J

    Having read Schabas’ article (thanks by the way for the reference), it’s astonishing to me that you have come to the conclusion about Schabas “not supporting the usage of the term ‘Armenian genocide’ anymore”. But, again you seem to be reading the texts very selectively and deducting your own very subjective conclusions which are actually not the aim of the article.

    First of all, you’re actually contradicting yourself since A) even though you insist on attacking Avedian’s text from different angles, it’s all about the definition of the genocide you really discuss. B) You refer to an article, in which Schabas, actually much alike Avedian is explicitly talking about crimes against humanity (while Avedian uses “internationally wrongful acts”) as a mere suggestions for common path for arbitration between the two camps. I would not call that “dismissing the term genocide in regard to the Armenian case”. But more importantly, you’re actually referring to an article which proves you wrong, while confirming Avedian’s version, where Schabas writes that “Whether we adopt the broad
    definition of the Rome Statute, or the narrower reference in the Charter of the Nuremberg Tribunal to ‘political, racial or religious grounds,’ the application of the concept to attacks on Armenians in the Ottoman Empire seems evident and uncontroversial.”

    To me this clearly states that you, in spite of dismissing the fixation on the definition of genocide in your article, rather disregard the passed judgement on Turkey being guilty of committed crimes (Schabas calls them crimes against humanity, while Avedian calls them internationally wrongful acts). Nonetheless, both are saying that Turkey did commit the deportations (not the “relocations” you use), massacred the population, forcibly transferred the Armenian children to other families (read Turkish and Kurdish), confiscated their property etc.

    By the way:

    The Armenian Supreme Court never stated that the genocide is in the constitution, because there is no such mentioning in the Armenian constitution. What the court said was that the Turko-Armenian protocols did not refute that statement (about the genocide), thus they were in line with the accepted norms in Armenia as well as the item in their declaration of independence.

    You dismiss the ICTJ report by pointing to the reference to Morgenthau as biased source. I took a quick peak through the sources. Morgenthau’s source is one of about 40 and there are quite many references to sources in the Turkish Foreign Ministry, dismissing the charges of the committed crimes. Are they biased as well? To me it seems that they have actually weighted in all research at hand.

    As for IAGS, Charny was one of many past directors, amogn others Helen Fein, Frank Chalk, Gregory Stanton, Robert Melson… The most recent one was actually William Schabas ;o)

    Sorry, but the more you argue, the less convincing your argumentation becomes. You have now totally evaded the issue of state responsibility, committing yourself to the denial of facts, and actually managed to contradict yourself by mentioning Shcabas’ article which indeed supports Avedian’s claims.

  23. Maxime Gauin

    @ K. Onef: I recommend the whole special issue of “Middle East Critique” and the compilation of documents of the Vienna platform. http://www.wieser-verlag.com/buch/archival-documents-viennese-armenian-turkish-platform They are important contributions to the debate on the events of 1915-1916.
    Regarding the Turkish proposal of 2005, it must be said that this proposition was endorsed by the main opposition party (CHP, Kemalist), too, and the AKP government repeated several times this suggestion. The last occurrence which I know is an interview of Mr. Davutoğlu to the French daily “Libération”, July 9, 2012.

  24. Marko Milanovic Marko Milanovic

    This discussion has in our view run its course. Comments are now closed, to this and the preceding post.