Given the difficulty in proving the special intent to destroy, the charge of genocide is not one to be brought lightly.
No-one can reasonably argue with the clear statements made by German President Joachim Gauck in his speech on Armenia held on 23 April 2015: “one hundred years ago, hundreds of thousands of members of the Armenian people” became “the victims of planned and systematic murder”. It is probably also accurate to say that these acts, for which the Ottoman Empire was responsible, were perpetrated against the Armenians “because they were Armenians”. But did these acts really constitute “genocide”, as Gauck further stated, in a legal sense?
According to the Convention on Genocide adopted in 1948, we are facing a genocide when certain acts are committed against a “national, ethnical, racial or religious group” with “the intent to destroy [it] in whole or in part”. The term derives from the Greek γένος (race, tribe) and the Latin caedere (to kill). The Armenians doubtlessly constitute such an (ethnic and religious) group; however, did the Turkish perpetrators really act with the required intent to destroy? Is it even possible to designate prior conduct using a legal category that did not exist at the time said conduct occurred?
These are by no means mere juristic quibbles. The prohibition of genocide constitutes so-called peremptory international law (ius cogens). The “prevention and punishment” demanded by the Convention is thus directed not only at the perpetrating and territorial State, but at all States on our planet. They are all called to prevent genocide and – if prevention is unsuccessful – to punish it. The extraordinary degree of wrongdoing inherent in genocide – the attack on one of the abovementioned groups and the denial of its right to exist implicit in this attack – makes it the “crime of crimes”, to which particular stigma is attached. Thus it is quite understandable that a State should try to defend itself against the stigmatisation associated with genocide.
Of course it is possible to qualify genocidal conduct as such ex post, retrospectively, as it were. However, the question of whether it is admissible to retroactively prosecute and adjudicate conduct as “genocide” is a different matter. According to the dominant understanding in civil law jurisdictions, the legality principle in its variant of the prohibition of retroactive legislation (nullum crimen sine lege praevia) impedes such retroactive adjudication. Thus, a person can only be held responsible for a conduct on the basis of the criminal law applicable at the time that the events took place. This is why the perpetrators of the Nazi Holocaust could not be convicted of genocide – at least not by German courts – but “only” of mass murder. Nor could the Turkish perpetrators have been convicted of genocide for their acts (which predated the Holocaust), even if genocide had been defined as an offence and a court set up immediately afterwards. Of course, from the perspective of international criminal law a more liberal understanding of the prohibition of retroactivity may be called for. Accordingly, the punishability on the basis of customary law or even general principles of law may be sufficient. This is the path taken in the so-called “Nuremberg Clause” of Article 15(2) of the International Covenant on Civil and Political Rights and Art. 7(2) of the European Convention on Human Rights (which is why Germany originally made a reservation to the latter article). Interestingly, Article 9 of the American Convention of Human Rights does not contain such an exception and the prohibition of retroactivity has been confirmed for the International Criminal Court (“ICC”) by Article 22(1) of the Rome Statute. In any case, this issue is not decisive, as the prohibition of retroactive legislation certainly does not preclude the retrospective – extrajudicial – classification of past conduct as genocide. To be sure, however, in this respect, too, the legal standards of the Genocide Convention must apply, at least if the aim of blaming a given group of persons or a nation with genocide is to achieve the abovementioned legal consequences and moral stigmatisation. “Genocide” is nothing but a legal term; otherwise it will degenerate into a vague concept of political combat.
As a legal concept, the crime of genocide requires the intent to destroy. This intent renders it – to use the language of criminal law – an offence with a surplus or ulterior intent, i.e., an offence in which the specific mens rea (the perpetrator’s intent to destroy the group) goes beyond the actual actus reus (the objective acts of aggression). Herein lies the crux of the matter. If charges of genocide are brought, then this special intent (dolus specialis) has to be proved. However, the German President’s speech made no mention of it. And this proof is also a problematic issue for specialist historians, who well-nigh unanimously speak of the Armenian “genocide”. For example, recently the German radio station Deutschlandfunk broadcast an interview with the distinguished Zurich historian Hans-Lukas Kieser, who had difficulty in providing a clear response when asked directly about the “intent to destroy”: Kieser stated that it was “difficult” to “find plans…that really demonstrate this intent one hundred percent…clearly in legal terms”. At the same time, Kieser affirmed that this intent was ultimately present, given the “whole organisation” and the “large scale” of the massacres. However, this cannot completely satisfy a jurist schooled in international criminal law and familiar with the difficulty of proving this intent.
The intent to destroy constitutes a significant obstacle for genocide convictions. Indeed, for many (international) courts it has proved insurmountable and is the main reason why convictions for genocide under international law are extremely rare. The only examples of successful convictions in international courts are the Yugoslavia Tribunal’s Srebrenica trial and some sentences passed by the Rwanda Tribunal for the genocide perpetrated by the Hutu against the Tutsi. At the ICC, genocide proceedings are currently only taking place against Sudanese President Omar al-Bashir (who has just been re-elected!) for the alleged crimes carried out in the Darfur region of Sudan. Whether this will end with a conviction is doubtful, not least because of the difficulty to prove the intent to destroy. Given the lack of evidence, such as an order to destroy a particular group, a conviction will usually only be successful if the destructive intent can be derived from the circumstances of the respective conduct – in line with the old doctrine of dolus ex re (intent derived from the objective facts).
None of this excludes at the outset that the crimes committed against the Armenians may indeed merit a genocide verdict based on a comprehensive review of the available sources. However, in light of the difficulties demonstrated above, the charge of genocide is not one to be brought lightly. We should also remain aware of the differences between the Armenian case and the Holocaust perpetrated by the National Socialists. The latter’s classification as genocide is based upon documentary evidence (especially the infamous document of the Wannsee Conference on the Final Solution to the Jewish Question) that clearly proves the Nazis’ intent to destroy the Jewish people. Furthermore, this intent was confirmed in a large number of trials, such as the Jerusalem Eichmann Trial and the Frankfurt Auschwitz Trials, even though in the German trials the prohibition of retroactivity meant that genocide – subsequently incorporated into German law – could not be applied as a criminal offence. In Nuremberg, the Nazi perpetrators were actually charged with genocide – despite the prohibition of retroactivity and the lack of a clearly defined offence – and some of them even convicted of it (as a crime against humanity!) in the famous Jurists’ Trial (on this see Kevin J. Heller, The Nuremberg Military Tribunals, OUP 2011, pp. 249-50). Concerning the question of Armenia, we can conclude from all of this that no final judgment should be made before a report has been presented by an independent historical commission duly advised by international criminal lawyers.
The author is grateful to Margaret Hiley, M.A., Ph.D., for her invaluable assistance in the preparation of this English version.