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Faculteit Rechtsgeleerdheid

Universiteit Gent

Academiejaar 2016-2017

“Legal Claims for the

Armenian Genocide”

Masterproef van de opleiding

‘Master in de rechten’

Ingediend door

Nadya Movsisyan

(01103299)

Promotor: Prof. dr. Tom Ruys

Commissaris: Hofer Alexandra

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Acknowledgements

Firstly, I would like to thank my promotor Prof. dr. Tom Ruys for giving me the opportunity to

work on a subject so close to my heart and guiding me through the entire process. I would

also like to express my gratitude towards Dr. Rouben Adalian, Director of the Armenian

National Institute in Washington D.C., for granting me access to the rich library established by

the Armenian National Institute and for mentoring me during my internship at the Armenian

National Institute. Further, I would like to thank my parents for giving me the chance to do

something I love and my siblings for their support.

As a Belgian citizen with an Armenian background, I have always been very interested in the

history of my ancestors. The Armenian Genocide is a big stain in the Armenian history. My

interest in this matter grew after visiting the homeland of my ancestors, set in current Turkey.

I had never expected that my visit to Eastern-Turkey would leave such an impact on me and

would influence my interests and goals with regard to my future career. As a law student, I

had difficulties accepting that Turkey not only remained unpunished for its crime, but also

continued to enjoy the fruits of its crime. This journey made me see the Armenian Genocide

in another perspective, the legal consequences of the Armenian Genocide.

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Content Table

1 Introduction 7

2 Historical Background 9 2.1 Social and Political Situation in the Ottoman Empire (19th – early 20th Century) 10 2.2 Humanitarian Intervention by the European Powers 10 2.3 The Rise of Armenian Nationalism 11 2.4 Consequences for the Armenians after the Rise of the Ittihadists 11 2.5 The Atrocities against the Armenians (1915-1917) 13 2.6 The Harms Inflicted upon Armenian victims 15 2.7 Conclusion 17

3 Relevant International Law and Practice 19 3.1 The Preliminary Treaty of San Stefano & the Treaty of Berlin (1878) 19 3.2 Turkish Court Martial (1919-1922) 20 3.3 The Peace Treaty of Sèvres (1920) 22 3.4 The Peace Treaty of Lausanne (1923) 24 3.5 The Origins of the Word ‘Genocide’ and the Legal Notion 25 3.6 Legal Notion: Crime against Humanity 28 3.7 The Beginning of International Prosecution of War Crimes 29 3.8 The Nuremberg Trials (1945-1946): Reparation after World War II 30 3.9 The Convention on the Prevention and Punishment of the Crime of Genocide (1948) 31

3.9.1 CLOSER DEFINITION OF THE CRIME OF GENOCIDE: GENOCIDAL INTENT 32 3.9.2 CLOSER DEFINITION OF THE CRIME OF GENOCIDE: MATERIAL ACTS OF GENOCIDE 33 3.9.3 PROSECUTION FOR THE CRIME OF GENOCIDE 34

4 Case-study: Reparation for the Armenian Genocide 37 4.1 Internationally Wrongful Acts? 37

4.1.1 VIOLATION OF THE TREATY OF BERLIN? 37 4.1.2 VIOLATION OF THE TREATY OF SÈVRES? 39 4.1.3 VIOLATION OF THE TREATY OF LAUSANNE? 39 4.1.4 VIOLATION OF THE GENOCIDE CONVENTION? 40

4.2 Are the Internationally Wrongful Acts of Individuals Attributable to the Ottoman Empire 48 4.2.1 STATE SUCCESSION: THE REPUBLIC OF TURKEY AS SUCCESSOR STATE? 52

4.3 Forms of Reparation- Under ILC’s Articles on State Responsibility 54 4.3.1 RESTITUTION 55 4.3.2 COMPENSATION 56 4.3.3 SATISFACTION 59 4.3.4 CONCLUSION 62

4.4 Individual Applications under the European Convention on Human Rights 63 4.4.1 VIOLATION OF ARTICLE 2 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS? 70 4.4.2 VIOLATION OF ARTICLE 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS? 73 4.4.3 CONCLUSION 76

5 Conclusion 77

6 Samenvatting 79

7 References 83

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1 Introduction

“Your sad holocaust is engraved in history, and nothing shall purge your

death from our memories, for our memories are your only grave.”

Venice, written by a French soldier for the victims of the Armenian Genocide

International law can only be effective if it is applied in a consistent manner. This paper deals

with the reparation for a historical fact, namely the 1915 Armenian Genocide. I decided to

write my masters’ thesis on this question, for I was stunned on how insufficiently this matter

has been studied throughout the years.

The atrocities committed against the Ottoman Armenians in 1915 are recognized as a

genocide today. This is a fact, confirmed by the international community. The reason why the

legal consequences have stayed out, is still subject to discussion.

Besides its importance for the Armenian community, the matter remains relevant on a global

level as well. For the concept of ‘furthering peace’ to be of any value, responsibility for crimes

as the crime of genocide and crimes against humanity have to be pursued. The obligation to

investigate gross human rights violations serves the fundamental public interests by allowing

the nation in question to learn from its history and combating impunity. What is examined

herein is whether the existing arsenal of legislation can provide a sufficient basis for reparation

claims for the Armenian Genocide, more than a century later.

In what follows is a study on various aspects of the Jewish Holocaust, the Screbrenica

Genocide and the Rwandan Genocide. I notice that the factual circumstances of the previous

genocides display striking similarities with the Armenian Genocide. However, only the

Armenian Genocide has been extensively debated. This raises the question whether the

Armenian Genocide is rather a political issue?

For the legal analysis, I will examine International Law, including Peace Treaties of the early

20th century, and post-World War I Turkish court-martial cases regarding punishment of the

perpetrators of the 1915 massacres and deportations of the Ottoman Armenians. Secondly, it

is relevant to study the modern International law legislation, in particular the Convention on

the Prevention and Punishment of the Crime of Genocide, and jurisdiction on the crime of

genocide.

After processing this wide set of information, questions regarding the retroactivity of the

Genocide Convention, in particular in light of its applicability in relation to the case under

study, came up. Of course, I will also have to examine whether the current Republic of Turkey

can be confronted with acts committed by the former state of the Ottoman Empire. This led

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to the question whether the current Republic of Turkey continued the international legal

personality of the Ottoman Empire?

To present a comprehensive study, this paper is built up out of three parts. As this 1915

massacre is a historical fact, that has taken place multiple generations before, it is necessary

to include its factual background information. In a next part, an overview of relevant

legislation is presented with a focus on the Convention on the Prevention and Punishment of

the Crime of Genocide. A legal analysis will then be performed based on the existing arsenal

of legislation in order to investigate whether it could provide a good foundation for the case

under study, namely reparation for the Armenian Genocide.

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2 Historical Background

This first chapter thus gives a historical overview of the situation in the Ottoman Empire in the

early 20th century. As this paper deals with an event, that has taken place over a century ago,

it is necessary to outline the situation at that time in order to acquire insight in the matter

from a historical point of view. In what follows, I will present the atrocities perpetrated against

the Ottoman Armenians by the Ottoman rulers starting from the end of the 19th Century and

what exactly triggered these events.

In the late 19th century, the European Powers foresaw humanitarian intervention in Ottoman

Turkey with the purpose of convincing the Ottoman government to adopt statutory provisions

granting equal rights to non-Muslim minorities (such as the Armenians).1 The first time the

problem of the Christian-Armenian minorities in the Ottoman Empire received international

attention was at the Berlin Conference, ending the Russo-Ottoman War, of 1877-1878.2

Previous attempts at international level were taken to address the problem of the Christian

Armenians in the Ottoman Empire, the Armenian population was discriminated and subjected

to among others; plundering, burning, murder, criminal behavior of government officials,

looting, and tax irregularities. In 1870, the Armenian Communal Council prepared a report and

confronted the government with these problems.3 At the time of the Russo-Ottoman War, the

Armenian population sought protection from Russia. A provision was concluded in the 1878

Preliminary Treaty of Peace between Russia and Turkey, providing that Russia had to fulfill the

role of supervisor over the Armenian provinces in the Ottoman Empire. The other Great

Powers supported the protection of the Armenian minorities in the Ottoman Empire as well.4

Despite these efforts to ameliorate the situation for the Armenians, the Ottoman government

never intended to enforce these rights, they merely adopted it to please the Europeans. The

European Powers also did not demand the enforcement of the statutes. However, the

Armenian population called on the implementation of these provisions. The Muslim majority

in Ottoman Turkey considered the new Armenian nationalism as a problem, even a threat,

which ought to be solved.

The Hamidian Massacres of 1894-1896, preceded the Armenian Genocide, resulted in the

murder of 80.000 to 300.000 Armenians.5 Sultan Abdul Hamid II feared the collapse of the

Ottoman Empire due to “the endless persecutions and hostilities of the Christian world.”6 The

Armenian villagers of Sasun revolted against the Hamidian rule to pay taxes to the Kurds in

addition to their contribution to the Ottoman government. The villagers had filed their

1 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 226. 2 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 42. 3 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 43. 4 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 45-46. 5 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 50. 6 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 47.

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complaint before the authorities in Constantinople. Meanwhile the Hunchak, an Armenian

revolutionary organization decided to revolt. These rebellious actions were not well received,

the Ottoman Empire suppressed them brutally. The Great European Powers7 intervened and

introduced the Sultan with a reform program as mentioned above. Despite the adoption of

the reformation program, implementation never came through. Instead series of systematic

massacres were persecuted in the Armenian regions of Western-Anatolia.8

2.1 Social and Political Situation in the Ottoman Empire (19th – early 20th Century)

The Ottoman state’s legal structure was fundamentally Islamic-based. Ottoman Turkey was a

Muslim-dominated, multi-ethnic system. The Sultan, in charge of supreme political power,

was the protector of the canon law of Islam (called the Şeriat). The Şeriat was restricted to the

territorial jurisdiction of the state and included religious precepts as regulations of judicial and

political nature. Besides the Ottoman Empire’s Islamic doctrines, additionally common law

was established to regulate the unequal relations between Muslims and non-Muslims. In the

early 20th century, the Muslim population represented the nation of overlords, while the non-

Muslim minorities was degraded to the status of tolerated infidels.

Classifying two religious communities constituted a rupture in the social structure of the

Ottoman Empire. Even when the Young Turk –Ittihadists party with the three leaders, Mustafe

Kemal Pasha, Enver Pasha and Djemal Pasha- gained power in 1908, they reaffirmed the

principle of the ruling of the nation. The Young Turks proclaimed liberty, justice and equality

for all Ottoman subjects but still vowed to uphold the superordinate- and subordinate social

structure. This is remarkable because the Ittihad party were not followers of the Islamic

doctrine. The leaders were personally atheist. They did however recognize the persuasive

Islamic influence in the country. With the safeguard of the tenets of the Islam by the Ittihad

party, any expectations of improvement of the situation of Christian minorities remained a

lost cause.9

2.2 Humanitarian Intervention by the European Powers

The efforts for humanitarian intervention by the European Powers conflicted with the

fundamental principles of the Ottoman politics. The European Powers strived to incorporate

egalitarian principles of European public law in favor of the Islamic common law principle of a

ruling nation. Despite the European Powers’ success in doing so, the effective application of

these egalitarian principles failed. The Great Powers were found unable or unwilling to force

the Ottomans to honor their promises and provide equal treatment to the minority

7 The five Great Powers in Europe were the French Empire, the Russian Empire, the Austrian Empire and the Kingdom of Prussia (later the German Empire). 8 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 48-54. 9 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 230.

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population. Only a unified and forceful intervention by the European Powers could have paved

a way for equality within the Islamic dominated culture of Ottoman Turkey. Article 61 of the

Treaty of Berlin of 1878 did bring along major consequences for the Ottoman Armenians.10

The Treaty of Berlin ensured on paper that Ottoman Armenians as a Christian minority were

entitled to equal rights under international law and in addition they were placed under the

protection of the Great Powers.11 Parties to the Treaty of Berlin of 1878 were the United

Kingdom, Austria-Hungary, French Third Republic, German Empire, Kingdom of Italy, Russian

Empire and the Ottoman Empire.

By insisting on their legal entitlement to the enacted reforms, the Armenians clashed with the

Ottoman government’s policy. As a result, the Turko-Armenian conflict escalated. The

Ottoman Turks justified their actions on the basis of common law on ‘the ruling of the

nation’.12

2.3 The Rise of Armenian Nationalism

The European Power’s pleas of equal treatment for the minorities living under Ottoman rule,

raised awareness and hope amongst the oppressed minorities within the borders of the

Ottoman Empire. By this, the ideal situation was created for the Ottoman rulers to solve the

“Armenian problem” definitive. The promises laid down in the Treaty of Berlin of 1878 gave

the Armenians great expectations. These promises led to a change in their behavior from

passively tolerating the abuses of the Ottoman system to engaging to Armenian

consciousness. Committees were formed by Armenian intellectuals in European capitals as a

source to protest against the abuses and ensure the implementation of the new reforms. The

Ottoman regime disagreed with these new developments within their territory. 13

2.4 Consequences for the Armenians after the Rise of the Ittihadists

Just like Sultan Abdul Hamid II, the new regime in 1908, led by the Young Turks continued

instituting of violent measures against minorities. At the 1910 Ittihadists Congress at Saloniki,

the leaders’ hidden agenda was “the complete Ottomanization of all Turkish subjects”.14 Talat

Pasha, leader of the Young Turks and Interior Minister held a pre-Congressional strategy

speech. During the meeting, Talat presented the homogeneous Ottoman society he

envisioned:

10 ROSCINI, M., “Establishing State Responsibility for Historical Injustices: The Armenian Case”, International Criminal Law Review, Vol. 14 (2014), p. 307. 11 Treaty of Berlin, 13 July 1878. 12 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 230. 13 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 252. 14 British Documents on the Origins of the War 1889-1914, Mr. Geary, Enclosure in No. 181, No. 38 Confidential, 2010, p. 207, available at https://archive.org/stream/britishdocuments91grea/britishdocuments91grea_djvu.txt.

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You are aware that by the terms of the Constitution equality of Mussulman and

Ghiaur (non-Muslims, also referred to as infidels) affirmed but all know and feel

that this is an unrealizable ideal. The Şeriat, our whole past history and the

sentiments of hundreds of thousands of Mussulmans and even the sentiments

of the Ghiaur themselves … present an impenetrable barrier to the

establishment of real equality. There can therefore be no question of equality

until we have succeeded in our task of Ottomanizing of the Empire.15

Austrian, British and French intelligence sources vouched for the occurrence and authenticity

of the meeting.16

A year after the Young Turks gained power, in 1909, they introduced constitutional changes

and laws with the purpose of liberalizing the system. While the Parliament was proclaiming a

liberal Ottoman system, minorities were heavily oppressed. The proposed constitutional

changes brought no actual relief to the minorities.17

The Young Turk regime -also referred to as the Committee of Union and Progress-, as

representor of the Ottoman government had as main objective the Turkification of the entire

Empire. To achieve this cultural homogeneity, the Ottoman government committed multiple

crimes against humanity. These included the systematic murder of up to 1.5 million

Armenians, rape of woman and children, forcibly Turkifying children18, kidnapping women and

children to serve as domestic or sexual servants, forcibly converting Armenians to the belief

of Islam19 and by governmental exercise expropriating all individual and institutional owned

immovable properties, movable properties and financial assets of Ottoman Armenians. The

Committee of Union and Progress succeeded in eliminating the ages old Armenian presence

from the eastern part of the Ottoman Empire.20

15 British Documents on the Origins of the War 1889-1914, Mr. Geary, Enclosure in No. 181, No. 38 Confidential, 2010, p. 208, available at https://archive.org/stream/britishdocuments91grea/britishdocuments91grea_djvu.txt. 16 R. KEVORKIAN, The Armenian Genocide A Complete History, London, I.B. Tauris & Co Ltd., 2011, p. 123. 17 R. KEVORKIAN, The Armenian Genocide A Complete History, London, I.B. Tauris & Co Ltd., 2011, p. 124. 18 Making Armenian children belief that they are Ottoman Turks. 19 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 190. 20 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 114.

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2.5 The Atrocities against the Armenians (1915-1917)

It appears that a campaign of race extermination is in progress under a

pretext of reprisal against rebellion.

Ambassador Morgenthau, July 16, 1915

The atrocities committed against the Armenians in the Ottoman Empire in 1915 is regarded

as the first major genocide of the twentieth century. This historical fact has not been

acknowledged by the Republic of Turkey. Yet, the Armenian Genocide does not lack

documentation, on the contrary the genocidal nature of the 1915 massacre of the Armenians

has been well-documented in American, European and Turkish state documents.21 Henry

Morgenthau, U.S. Ambassador to the Ottoman Empire, declared that “the conditions of the

war gave to the Turkish Government its longed-for opportunity to lay hold of the

Armenians”.22 When the Young Turk regime proceeded to commit atrocities against the

Ottoman Armenians, they were triggered by the defenseless position of the Christian

minorities, the decline of the Ottoman Empire, and the factual circumstances First World

War.23

The difference between the Hamidian Massacres in 1894-1896 and the Armenian Genocide in

1915-1917 is that the first were rather localized events, while the Armenian Genocide was

executed systematic and planned throughout the entire Empire. This distinction is clear in the

words of Talat Pasha, who said that the massacres of 1915 were aimed at “a complete and

fundamental elimination of this concern.”24 Further U.S. Ambassador Morgenthau recorded a

conversation on August 3, 1915, with Talat in which the latter said

That the Union and Progress Committee had carefully considered the matter in

all its details and that the policy which was being pursued was that which they

had officially adopted. Don’t get the idea that the deportations had been

decided upon hastily; in reality, they were the result of prolonged and careful

deliberation.25

This implies that the elimination of the Armenians was properly planned by the Committee of

Union and Progress (hereinafter CUP). The Committee of Union and Progress set multiple

measures into action. Government administrators, national police and the Ottoman Army

were employed to ensure the execution. In addition, the CUP released violent felons and

21 V. N. DADRIAN, The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus, New York, Berghahn Books, 2004, p. 19. 22 Quoted in T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 124. 23 A. JONES, Genocide: A Comprehensive Introduction, London, Routledge, 2011, p. 151. 24 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 55. 25 H. MORGENTHAU, Ambassador Morgenthau’s Story, Detroit Michigan, Wayne State University Press, 2003, p. 29.

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instructed them to attack Armenian deportees during the deportations. These formed the

Special Organization Unit and executed the genocidal campaign under the control of CUP.26

The Ottoman authorities even encouraged the local population, Turkish and Kurdish tribes to

participate in the destruction of the Armenians.27

Vehip Pasha, Commander of the Third Army –Ottoman Army- in February 1916, testified in

December 1918, that

These atrocities, committed according to a clear program and with

absolute intent, were carried out at the orders and supervision of first,

members of the Union and Progress Central Committee, and second, by

leading members of government who, by casting aside law and

conscience, served as tools for the designs of the Committee.28

The Committee of Union and Progress was driven by the ideology of Turkish nationalism,

which was built on the idea that the Ottoman Muslims were “superior to other peoples and

nations, and therefore possessed the inherent right to rule over them”.29

In 1915, 250.000 Armenian male volunteers in the Ottoman Army were disarmed, and

subsequently forced to lifelong labor or murdered instantly. In the early hours of the morning

of April 24, 1915, notable Armenian political, cultural and religious leaders were gathered in

Istanbul to be executed.30 The remaining young Armenian men and teenage boys were

separated from their relatives and were murdered soon after. The Armenian population that

was left was made up out of women, children and elderly, who were deported from their

homes and sent on death marches in the direction of the Syrian desert. The circumstances

during these deportations were horrible and inhumane, as the massacres, tortures and rapes

continued. Thirst, starvation and diseases caused a high number of deaths as well.

In the second phase of the Armenian Genocide, in the period 1919-1923, the destruction of

the Armenian people was consolidated under control of the Turkish ultranationalist forces led

by Kemal Ataturk.31 First, military forces invaded with brutal rule the lands in today’s eastern

Turkey that had been granted to the newly established Armenian Republic in 1918. Second,

the ultranationalist maintained the elimination strategy by murdering numerous Armenians

who attempted to return home and by driving away Armenians who had managed to

26 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 169. 27 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 164-165. 28 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 167. 29 T. AKCAM, De Armeense Genocide: een reconstructie, New York, Nieuw Amsterdam Uitgevers, 2006, p. 56. 30 H. MORGENTHAU, Ambassador Morgenthau’s Story, Detroit Michigan, Wayne State University Press, 2003, p. 33. 31 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 358.

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somehow remain in the region throughout the genocide period. The main objective,

elimination of Armenian presence, was continued to be government policy.32

In the third phase, the ultranationalists under Ataturk counteracted effective attempts to try

the major perpetrators of the Armenian Genocide. This was made possible by the premature

ending of the judicial procedures begun in 1919 by the Ottoman government and by releasing

accused perpetrators prior to or even after conviction.33

2.6 The Harms Inflicted upon Armenian victims

Following the abovementioned atrocities, the victims underwent permanent and material

damages. Permanent damage can only be compensated, since restitution is not an option.

Material damage derives following economic losses.34

The permanent damage category covers:35

(1) the murder of Armenians through violent acts or through deliberately imposed measures

as deportations;36

(2) the suicides by Armenians in order to avoid among others rape, torture, enslavement;

(3) pregnancy endings given the inhumane circumstances;37

(4) the viability of the Armenian people;

(5) and the physical suffering and psychological trauma for the combination of all the

circumstances.38

These harms are labeled as permanent damages, because measures of restitution are not an

option. It is impossible to bring life to those killed, nor to bring life to those who were

prevented from being born. There is no measure possible to erase the suffering experienced

by those who were killed, nor for those who survived.

The material damages inflicted on the Ottoman Armenians in 1915-1917 are twofold, namely

the expropriation of movable and immovable property or wealth belonging to the Armenians

in the Ottoman Empire and the actual value built upon it.39 The Armenian belongings can be

32 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 344-346. 33 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 416-420. 34 Conference on “Armenian Church Claims” by international lawyer Mr. Akhavan, December 7 2016, Brussels. 35 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 20. 36 The Armenian deportees were subjected to attacks, starvation, disease, physical challenges during the deportations to the Syrian desert. 37 Among others pregnancy ending by own mother, or the poor conditions of starvation, physical exertion, … 38 Among others; sexual violence, material and social degradation (being treated as an object or animal), enslavement, abuse, loss of family members, loss of social structures and institutional supports, destruction of elements of cultural and religious identity, witnessing of horrific violence to others. 39 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 21.

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divided in three categories40:

(1) land and buildings;

(2) businesses, religious institutions;

(3) movable wealth, including livestock, machinery, commercial products, materials for

manufacturing, furniture, jewelry, artwork and other valuable artifacts, money, and other

financial instruments.

Private property, commercial property, church property and Armenian community property

were taken starting from 1915. Especially denying access to religious sites appears to be

immoral.41

This harm continues until today, in the form of destruction of Armenian cultural property such

as churches situated in today’s Eastern Turkey. Continuing to destroy memory and historical

proof of the ages old -more than 2.500-year- Armenian presence in the Ottoman Empire,

seems to be intended to secure the acts of the 1915 Ottoman government. More than 2.000

religious sites in Turkey have been either actively destructed, allowed to fall into ruin or used

for other ends.42 For instance, churches have been transferred into Mosques or the Armenian

legacy of a historical building is neglected and left out –referred to as Turkified.

The Armenian economic structure also suffered under the situation. The Armenian

community was deprived of the growing possibilities for commercial infrastructure

development, intra-Armenian trade, commerce and economic interdependence.43

All these circumstances of mass killings, torture, rape, enslavement, forced assimilation

combined with the intense reduction of the political and cultural structures of the Armenian

community, had an unalterable effect on the Armenian identity from a social and cultural

point of view. The psychosocial consequences are as important. The trauma caused an impact

on the functioning of the individuals, in particular with regard to their social behavior,

economic productivity and political functioning. This shared trauma was internalized in the

Armenian culture and passed on from one generation to the other, affecting the psychologies

of the Armenian people as a part of their legacy.

The combined circumstances of reduced population, land losses, economic losses, physical

and psychological damages to the population led to a decrease of Armenian political power,

public order and security, as well as global and regional relevance. Against the reduced

Armenian relevance, stood the increase of Turkish political and military power.

40 Conference on “Armenian Church Claims” by international lawyer Mr. Akhavan, December 7 2016, Brussels. 41 Conference on “Armenian Church Claims” by international lawyer Mr. Akhavan, December 7 2016, Brussels. 42 R. BEVON, The Destruction of Memory: Architecture at War, London UK, Reaktion Books, 2007, p. 55-59. 43 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 22.

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2.7 Conclusion Despite the intentions to implement principles of equality amongst all Ottoman subjects, this

historical analysis clearly testifies that the Ottoman Armenians were targeted and subjected

to a series of massacres starting from the end of the 19th century. The 1915 massacres and

deportations, also referred to as the Armenian Genocide, were perpetrated widespread under

the control of the CUP party. Historian Taner Akçam claims, based on the original documents,

that Talat Pasha, leader of the Ottoman Empire in 1915, was unquestionably the coordinator

of the 1915 massacres and deportation.44

44 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 182.

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3 Relevant International Law and Practice

This chapter presents an overview of relevant legislation with regard to the Armenian

reparation claims. In the next chapter I will examine whether the legislation listed below can

serve as the legal basis for reparation claims related to the 1915 Armenian Genocide.

Technical barriers rise in this context, because at the time of the Armenian Genocide in 1915

the word genocide as such did not exist yet. However, murder has always been a crime a

punishable under national law. In the early 20th century, the Armenian minority population

living under Ottoman rule was entitled to equal treatment and protection under multiple

International Peace Treaties.

3.1 The Preliminary Treaty of San Stefano & the Treaty of Berlin (1878)

Since the 1800s, the Ottoman Empire adopted multiple International Treaties in favor of

Christian minorities living within the empire. The 1878 Preliminary Peace Treaty of San Stefano

between Russia and the Ottoman Empire is the first international agreement referring to the

Armenians, in which the government of the Ottoman Empire -also referred to as the Sublime

Porte- promises to give immediate effect to the improvements and reforms requested in the

Armenian populated regions.45 The treaty also guaranteed the security of the Armenians from

Kurds and Circassians. The Preliminary Peace Treaty of San Stefano implied two international

obligations for Turkey towards Russia, one was to adopt the reforms and the second to protect

the Armenians.46

The United Kingdom negotiated the Cyprus Convention with the Ottoman Empire in 1878. In

article 1 of the Cyprus Convention the United Kingdom promised to protect the Ottoman

Empire against Russia in Asia Minor. The Ottoman Empire in turn promised "to introduce

necessary reforms, to be agreed upon later between the two Powers, into the government,

and for the protection of the Christian and other subjects of the Porte in these territories".47

The Treaty of San Stefano was revised by the Treaty of Berlin within the same year, 1878.48

Parties to the Treaty of Berlin were the United Kingdom, Austria-Hungary, the French Third

Republic, the German Empire, the Kingdom of Italy, the Russian Empire and the Ottoman

Empire. The Treaty of Berlin ensured in its article 62 the following: “in no part of the Ottoman

Empire shall difference of religion be alleged against any person as a ground for exclusion or

incapacity as regards the discharge of civil and political rights, admission to the public

employments, functions and honours, or the exercise of the various professions and industries

45 The Preliminary Peace Treaty of San Stefano, signed on March 3, 1878, between Russia and the Ottoman Empire. 46 Article 16 of the Preliminary Peace Treaty of San Stefano. 47 The Cyprus Convention, signed 4 June 1878, between the United Kingdom and the Ottoman Empire. 48 The Treaty of Berlin, signed 13 July 1878, between the United Kingdom, Austria-Hungary, the French Third Republic, the German Empire, the Kingdom of Italy, the Russian Empire and the Ottoman Empire.

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... The right of official protection by ... the Powers in Turkey is recognized”.49 Article 61 of the

Treaty of Berlin imposed, in the same language as had been used in the San Stefano Treaty, a

positive obligation on the Ottoman government to

carry out, without further delay, the improvements and reforms demanded by

local requirements in the provinces inhabited by the Armenians, and to

guarantee their security against the Circassians and Kurds. It will periodically

make known the steps taken to this effect to the Powers, who will superintend

their application.50

The treaty confirmed furthermore that the Armenians were placed “under the express

protection of the international law of contract, and under the control of the Great Powers.

The natural obligations of the Turkish Government to all its subjects have become, as regards

the Armenians, strict engagements with the States which are parties to the Treaty [of Berlin],

and as regards all the Christian Turkish subjects in Asia strict engagements with England”.51

3.2 Turkish Court Martial (1919-1922)

The long-lasting process of maltreatment of Armenian Christians early 20th century, the

military coup of the Young Turks in 1908, the war-situation in the background and the increase

of Muslim refugees from the Balkans speeded up the process of the annihilation of the

Armenian population in the Ottoman Empire. Post-war trials for the latter were held in

Istanbul against the CUP leadership in 1918.

Initially, pressure came from the British government to bring the perpetrators to justice.

Rather than handing the perpetrators over to a foreign judicial body, Turkey decided to try its

own nationals before domestic courts. The Turkish authorities arrested several perpetrators

such as, the members of the CUP; wartime Cabinet Ministers; provincial governors; and high-

ranking military officers identified as organizers of wholesale massacres in their zones of

authority.52

Although the Court Martial trials were based on domestic penal law, Turkish lawyers evoked

the laws of humanity to prosecute the Turkish war criminals.53 The charges in the indictments

were centred on the members of the CUP. The main objective of the CUP was “the massacre

and destruction of the Armenians”. The top leaders of the Ittihad; Enver Pasha, Djemal Pasha

49 Article 62 of the Treaty of Berlin. 50 Article 61 of the Treaty of Berlin. 51 R. ROLIN-JACQUEMYNS, Armenia, the Armenians and the Treaties, London, John Heywood, 1891, p. 40. 52 V. N. DADRIAN, The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus, New York, Berghahn Books, 2004, p. 307. 53 KUYUMJIAN, A., “The Armenian Genocide: International Legal and Political Avenues for Turkey’s Responsibility”, Revue de Droit Université de Sherbrooke 2011, p. 261-268.

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and Talat Pasha were prominently mentioned in the indictment for murder, arson, gutting,

rape and all sorts of torture.54 The Turkish court in 1919 stated “The Armenians in particular

suffered disaffection as the constitutional provisions guaranteeing security and justice proved

ill-founded; as a result, they were prompted to assume a posture of waiting for an opportunity

to fall back on their national aspirations” and that “The Ittihadist’s deliberately exacerbated

racial and national differences and cleavages”.55 Talat Pasha, Enver Pasha, Djemal Pasha, Dr.

Nazim, top leaders of the Ittihad and Cabinet Ministers, were condemned to death in absentia.

Resit Akif Pasha, cabinet minister of the first post-World War I Ottoman government,

described the process of the Armenian Genocide, which was later confirmed in Vehip Pasha’s

testimony, in a speech to the Parliament on 21 November, 1918:

During my few days of service in this government I’ve learned a few secrets and

have come across something interesting. The deportation order was issued

through official channels by the minister of the interior and sent to the

provinces. Following this order the Central Committee (CUP) circulated its own

ominous order to all parties to allow the gangs to carry out their wretched task.

Thus the gangs were in the field, ready for their atrocious slaughter.56

The military tribunal in the Yozgat verdict in 1919 found Kemal Bey and Tevfik Bey guilty of a

”retaliatory massacre” and characterized their motive as ”feelings of revenge, personal

vendetta and personal rancor”.57 On the basis of articles 45 and 170 of the Ottoman Penal

Code ministers of the wartime Turkish cabinet, Ittihad party leaders and the architects of the

genocide as Talat Pasha were found guilty of “the organization and execution of the crime of

massacres against the Armenian population” by a court martial on 5 July, 1919.58 Mehmed

Kemal (county executive of Boghazyan), Abdullah Avni (Erzincan gendarmerie), and

Behramzade Nusret (Bayburt county executive and District Commissioner of Ergani and Urfa)

were sentenced to death based on article 171 of the Ottoman Military Code for the “crimes

of massacre, pillage and plunder”.59

However, though these trials were successful in documenting the events, the punishment of

the perpetrators was hindered under the new nationalist regime of Kemal Ataturk.60 The

54 V. N. DADRIAN, The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus, New York, Berghahn Books, 2004, p. 323-326. 55 V. N. DADRIAN, The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus, New York, Berghahn Books, 2004, p. 331. 56 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 175. 57 Yozgad Tehcir ve Taktili Muhakemesi (Karar Sureti), quoted in V.N. DADRIAN, T. AKCAM, Judgement at Istanbul – The

Armenian Genocide Trials, New York, Berghahn Books, 2011, p. 292. 58 W. Schabas, Genocide in International Law, Cambridge University Press, 2000, p. 21. 59 V.N. Dadrian, Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 308-309. 60 V. N. DADRIAN, The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus, New York, Berghahn Books, 2004, p. 318.

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convicted perpetrators, in captivity, were released under the rule of Ataturk. Thus, those

responsible for these crimes were never punished for their wrongful acts.

3.3 The Peace Treaty of Sèvres (1920)

The Peace Treaty of Sèvres was signed on August 10, 1920, between the Allied Powers and

the Ottoman Empire.61 The Treaty of Sèvres intended to compensate the harm inflicted upon

the Ottoman Armenians in the period of 1915-1917 under international law, while the Turkish

court martials as discussed above were based on national legislation.62 The measures in the

Treaty of Sèvres were twofold. First, punishment of the perpetrators of the 1915 atrocities

and the obligation to provide restitution to the victimized group was envisioned by the Allied

Powers of World War I in the Peace Treaty. The Treaty of Sèvres served as the legal basis for

the prosecution of Turkish officials for war crimes committed by the Ottoman Empire against

Allied nationals but also for crimes against subjects of the Ottoman Empire, in particular the

Armenians. Secondly, in article 89 of the Treaty of Sèvres the First Armenian Republic –also

referred to as Wilsonian Armenia- was established through U.S. President Woodrow Wilson’s

arbitral award.63

Despite the fact that Turkey signed the Peace Treaty of Sèvres, the ratification providing actual

guarantees for the victimized did not follow. The international criminal tribunal envisaged in

article 230 of the Treaty of Sèvres was never set up, nor were the arbitral commissions

pursuant article 144 of the Treaty of Sèvres established. The failure to ensure implementation

of the Treaty of Sèvres is partially due to the international political unrest, the end of the

Young Turk regime with the rise of the Kemalist regime in Turkey, the rise of the Soviet Union,

the limited United States interference and the overall lack of unity amongst the European

Powers. Although United States diplomats condemned the crimes in 1915, the government

did not act on it to confront the injustices after the war. U.S. Ambassador Henry Morgenthau

referred to the massacre of the Armenian people as “race murder” and described the Ottoman

policy as following:

Persecution of Armenians assuming unprecedented proportions. Reports from widely

scattered districts indicate systematic attempt to uproot peaceful Armenian

populations and through arbitrary arrests, terrible tortures, whole-sale expulsions and

deportations from one end of the empire to the other accompanied by frequent

instances of rape, pillage, and murder, turning into massacre, to bring destruction and

destitution on them. These measures are not in response to popular or fanatical

demand but are purely arbitrary and directed from Constantinople in the name of

61 Treaty of Sèvres, signed 10 August 1920, between the Ottoman Emire, the United Kingdom, France, Italy, Japan and Serbia. 62 See Chapter 3.2. 63 Article 89 of the Treaty of Sèvres.

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military necessity, often in districts where no military operations are likely to take

place.64

The Allied powers did not put pressure on Turkey, neither by political, nor by economic means,

to enforce the implementation of the Peace Treaty.

Article 89 of the Treaty of Sèvres issues the settlement of the Turkish-Armenian frontier to the

arbitration of U.S. President Woodrow Wilson. Article 89 of the Treaty of Sèvres declares the

following:

Turkey and Armenia as well as the other High Contracting Parties agree to

submit to the arbitration of the President of the United States of America the

question of the frontier to be fixed between Turkey and Armenia in the vilayets

of Erzerum, Trebizond, Van and Bitlis, and to accept his decision thereupon, as

well as any stipulations he may prescribe as to access for Armenia to the sea,

and as to the demilitarisation of any portion of Turkish territory adjacent to the

said frontier.65

The need for an arbitral process was already obvious in 1920.66 The Supreme Council of the

Paris Conference to the Turkish Government in 1920 explained that Armenian sovereignty

over Wilsonian Armenian lands was necessary to ensure the future viability of the Armenian

people. The territory had been identified as Armenia, for centuries, conform Article 24 of the

Mudros Armistice, regardless of the controlling government.67 The Committee -fully

addressed as the Committee upon the Arbitration of the Boundary between Turkey and

Armenia- in charge of drawing the Turkish-Armenian borderline anticipated that Armenian

refugees would return to their (for a brief moment independent) homeland. A rapid increase

of the Armenian population was expected by the Committee.68 The prospect was that

Armenians would represent 75% of the population within a timeframe of twenty years after

the fixation of the borderline by the arbitration.

In this context it is important to note that in the aftermath of the Armenian Genocide, even

the post-Committee of Union and Progress government was willing to recognize the borders

of the newly established Republic of Armenia. The territory belonging to the First Armenian

Republic corresponded with ’historical Armenia‘.69

64 Telegram from American Ambassador, Henry Morgenthau, to the U.S. Secretary of State, July 10, 1915 quoted in A. WHITEHORN, The Armenian Genocide: The Essential Reference Guide, Santa Barbara California, ABC CLIO, 2015, p. 293. 65 Article 89 Treaty of Sèvres 1920. 66 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 63. 67 R.G. HOVANNISSIAN, The Armenian Genocide in Perspective, New Brunswick, NJ, Transaction Books, 1986, p. 19-20. 68 R.G. HOVANNISSIAN, The Armenian Genocide in Perspective, New Brunswick, NJ, Transaction Books, 1986, p. 37. 69 The term historical Armenia is still used to refer to the First Armenian Republic.

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The transfer of land, through the Wilsonian Arbitral, in 1918 was an initial attempt at

reparation for the harms inflicted by the genocide to the Armenian community under the

Ottoman rule. In November 1920 Turkish nationalist forces, under the leadership of Kemal

Ataturk, with Soviet support ended the independence of the First Armenian Republic by

conquering Western Armenia.70 The First Republic of Armenia lost Eastern Armenia to a

communist takeover, which eventually led to the incorporation of the Armenian state in the

Soviet Union. At the ending of the Turkish-Armenian war in September 1920, the defeated

Armenian Republic signed the Treaty of Alexandropol, between the First Republic of Armenia

and the Grand National Assembly of Turkey, in which the First Armenian Republic renounced

the Treaty of Sèvres.71 The Treaty of Alexandropol was never ratified by Soviet Armenia.

However, the government of Soviet Armenia signed the Treaty of Kars, which reaffirmed

previous Armenian territorial concessions to the Grand National Assembly of Turkey, on 13

October 1921.72 As a result, claims relating to the return of ‘Wilsonian Armenian’ have no

legitimate grounds, given the fact that the Soviet Armenian government clearly waived its

rights with the ratification of the Treaty of Kars, signed by the Grand Assembly of Turkey,

Soviet Armenia, Soviet Azerbaijan and Soviet Georgia.

3.4 The Peace Treaty of Lausanne (1923)

On July 24 1923, the Peace Treaty of Lausanne was signed between Turkey (under Kemalist

control) and the Allies, including Britain, France, Italy, Japan, Greece and Romania. It is

generally accepted that the Lausanne Treaty replaced the Treaty of Sèvres.73 However, the

Treaty of Lausanne of 1923 left out the provisions in the Sèvres Treaty on the international

trial of the perpetrators of the Armenian massacres in 1915, the obligation to provide

reparations to these victims and the recognition of an independent Armenian Republic.

The president of the Republic of Armenia’s delegation for the Sèvres negotiations, Avetis

Aharonian, unsuccesfully confronted the foreign ministers of the Allied Powers in 1923 with

the incorrectness and the legal irrelevance of the Lausanne Treaty for Armenia:

The delegation which signed the Sèvres Treaty for Armenia reserves and insists upon

all the rights which the powers, during and since the war, solemnly recognized and

which were duly embodied in the Sèvres Treaty and reincorporated and reaffirmed by

decisions of subsequent conferences.74

70 R.G. HOVANNISSIAN, The Armenian Genocide in Perspective, New Brunswick, NJ, Transaction Books, 1986, p. 36. 71 Treaty of Alexandropol, signed 3 December 1920, between the First Armenian Republic of Armenia and the Grand National Assembly of Turkey. 72 Treaty of Kars, signed 13 October 1921, between the Grand National Assembly of Turkey, Soviet Armenia, Soviet Azerbaijan, Soviet Georgia. 73 Treaty of Lausanne, signed 24 July 1924, between between Turkey, Britain, France, Italy, Japan, Greece and Romania. 74 Quoted in MANDALIAN, J. G., “What do the Armenians Want?, Armenian National Committee, 1946, p. 12.

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The Treaty of Lausanne fixed the Turkish frontier with Bulgaria (Article 2 [1]), Greece (Article

2 [2]), Syria (Article 3 [1]), and Iraq (Article 2 [1]). The Turkish-Armenian borders remained

undiscussed in the Treaty of Lausanne. The special arrangement over the boundaries of

Armenia, set up through the arbitration of U.S. President Woodrow Wilson pursuant the

Treaty of Sèvres, was not mentioned in Article 16 of the Treaty of Lausanne.75 Article I6 of the

Treaty of Lausanne stipulates

Turkey hereby renounces all rights and title whatsoever over or respecting the

territories situated outside the frontiers laid down in the present Treaty and

the islands other than those over which her sovereignty is recognised by the

said Treaty, the future of these territories and islands being settled or to be

settled by the parties concerned.

In line with previous Peace Treaties adopted by the Ottoman governments, the Treaty of

Lausanne ensured equal treatment for all subjects, including non-Muslim minorities. With the

adoption of the Treaty of Lausanne, non-Muslim minorities living under Turkish reign were

entitled to ‘the same treatment and security in law and in fact as other Turkish nationals’.76

3.5 The Origins of the Word ‘Genocide’ and the Legal Notion

Although, the atrocities committed against the Ottoman Armenians in 1915 were recognized

as ‘race murder’, the word genocide as such did not exist yet. The Polish lawyer Raphael

Lemkin introduced the word “genocide” in the twentieth century, a term that would cover an

existing practice. In 1944 Lemkin used the term genocide in his book Axis Rule in Occupied

Europe to describe the events of the twentieth century.77 Lemkin described the term as

followed:

By genocide we mean the destruction of a nation or of an ethnic group.

Generally speaking, genocide does not necessarily mean the immediate

destruction of a nation, except when accomplished by mass killings of all

members of a nation. A difference should be made between ‘immediate

destruction’ of a nation and ‘destruction of essential foundations’ of its life. So

destruction in the sense of mass killings of all members of a nation was a

specific type but did not entirely define genocide.78

As a student at the University of Lvov, Raphael Lemkin got acquainted in 1921 with the case

of Soghomon Tehlirian, a survivor of the Armenian Genocide. Soghomon Tehlirian was

arrested and charged in Berlin with the murder of Talat Pasha, one of the key architects of the

75 Article 16 of the Treaty of Lausanne. 76 Article 40 of the Treaty of Lausanne. 77 A. JONES, Genocide: A Comprehensive Introduction, London, Routledge, 2011, p. 8-12. 78 M. SHAW, What is Genocide?, Cambridge, Cambridge University Press, 2008, p. 19.

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Armenian Genocide. Tehlirian was a member of the Armenian Dashnak Nationalist Party.79

The Dashnak Nationalist Party decided to punish the perpetrators of the Armenian Genocide

by taking matters into their own hands and kill those who were sentenced to death in absentia

by the Turkish court-martial trials.80 The German Courts decided to set Soghomon Tehlirian

free due to temporary insanity.81 Lemkin was shocked by the case: “A nation was killed and

the guilty persons were set free. Why is a man punished when he kills another man? Why is

the killing of a million a lesser crime than the killing of a single individual?” Lemkin was of

opinion that those who were found guilty for the 1915-events, such as Talat Pasha, should be

on trial.82

As a reaction, Lemkin advocated during a legal conference in Madrid in 1933 the adoption and

international prosecution of two crimes. The first crime, barbarity, referred to “the

premeditated destruction of national, racial, religious and social collectivities”.83 The second

crime vandalism was described as the “destruction of works of art and culture, being the

expression of the particular genius of these collectivities”.84 Although the prosecution of the

Turks for “crimes against humanity” became a topic for discussion, there was no general

interest to adopt the new crimes in formal regulations. The legal scholars at the conference

did not adopt the resolution against the crimes as described by Lemkin. Back then, state

sovereignty prevailed over atrocities against its own citizens.85

After moving to the United States, Lemkin pursued a more suited concept than “barbarity”

and “vandalism” to cover this type of crime. Lemkin discovered the term “genocide”, derived

from Greek and Latin roots. The Greek "genos", meaning race or tribe, and the Latin "cide",

meaning killing. Lemkin was of opinion that although physical killing was of high importance,

it was only one aspect of the crime.86

In 1946, Resolution 96 (I) was unanimously adopted by the United Nations General Assembly

constituting genocide as a crime under international law.87 Eventually in 1948 the UN General

Assembly approved the Convention on the Prevention and Punishment of the Crime of

Genocide, which provided a legal definition of the crime of genocide for the first time.88 The

Genocide Convention came into effect on January 12, 1951.

79 The trial of Soghomon Tehlirian, available at http://www.academia.edu/11049790/Trial_of_Soghomon_Tehlirian_in_Berlin_in_1921. 80 A. JONES, Genocide: A Comprehensive Introduction, London, Routledge, 2011, p. 8-12. 81 The trial of Soghomon Tehlirian, available at http://www.academia.edu/11049790/Trial_of_Soghomon_Tehlirian_in_Berlin_in_1921. 82 BECHKY, P., “Lemkin’ s situation: toward a rhetorical understanding of genocide”, Brooklyn Law Review 2012, p. 558. 83 BECHKY, P., “Lemkin’ s situation: toward a rhetorical understanding of genocide”, Brooklyn Law Review 2012, p. 558-559. 84 BECHKY, P., “Lemkin’ s situation: toward a rhetorical understanding of genocide”, Brooklyn Law Review 2012, p. 558-559. 85 A. JONES, Genocide: A Comprehensive Introduction, London, Routledge, 2011, p. 8-12. 86 BECHKY, P., “Lemkin’ s situation: toward a rhetorical understanding of genocide”, Brooklyn Law Review 2012, p. 595-596. 87 Resolution 96 (I), December 11, 1946, adopted by the General Assembly at its fifty-fifth meeting, available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/47/IMG/NR003347.pdf?OpenElement. 88 Convention on the Prevention and Punishment of the Crime of Genocide adopted in 1948.

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Genocide was defined in article 2 of the Genocide Convention as:

Any of the following acts committed with intent to destroy, in whole or

in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.89

The Genocide Convention did not specify the meaning of “national, ethnical, racial or

religious” groups. This was later on clarified in a judgment of the International Criminal

Tribunal for Rwanda.

Article 2 of the Genocide Convention gives a broad definition of the term genocide. For the

qualification as genocide killing is not required, serious “bodily or mental harm” done are to

be sufficient. This was confirmed in the trial against Adolf Eichmann, in which Eichmann was

convicted for “enslavement, starvation, deportation and persecution, …, detention of Jews in

ghettos, transit camps and concentration camps in conditions which were designed to cause

their degradation, deprivation of their rights as human beings, and to… cause them inhumane

suffering and torture”.90 The ad hoc International Criminal Tribunal for Rwanda (hereinafter

ICTR, 1994) opened the scope of “bodily or mental harm” to “bodily or mental torture,

inhuman treatment, and persecution,” and “acts of rape and mutilation”.91

Lemkin emphasized the universality of genocide with the following words, “whether

committed in time of peace or in time of war”. The Nuremberg judgments did not follow

Lemkin’s vision and excluded peacetime genocide.92 Article 1 of the Genocide Convention

follows Lemkin’s definition:

The Contracting Parties confirm that genocide, whether committed in

time of peace or in time of war, is a crime under international law which

they undertake to prevent and to punish.

89 Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide. 90 A. JONES, Genocide: A Comprehensive Introduction, London, Routledge, 2011, p. 14. 91 A. JONES, Genocide: A Comprehensive Introduction, London, Routledge, 2011, p. 14. 92 BECHKY, P., “Lemkin’ s situation: toward a rhetorical understanding of genocide”, Brooklyn Law Review 2012, p. 579.

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3.6 Legal Notion: Crime against Humanity

Traces of the concept of crimes against humanity can be found in the 1907 Hague Convention.

The concept of crimes against humanity, as part of humanitarian law, emerged after the

events in the first half of the twentieth century. The “Martens clause” holds:

Until a more complete code of the laws of war has been issued, the High Contracting

Parties deem it expedient to declare that, in cases not included in the Regulations

adopted by them, the inhabitants and the belligerents remain under the protection

and the rule of the principles of the law of nations, as they result from the usages

established among civilized peoples, from the laws of humanity, and the dictates of

the public conscience.93

This clause formed a legal ground to punish perpetrators of large-scale human rights violations

within its borders. The concept crimes against humanity was mentioned for the first time in

1915.94

The atrocities committed by the Ottoman Empire against its Armenian population led to the

adoption of a joint declaration, on the 28 of May 1915, by the governments of France, Great

Britain and Russia.95 These states, stated that:

In the presence of these new crimes of Turkey against humanity and

civilization, the allied Governments publicly inform the Sublime Porte

that they will hold personally responsible for the said crimes all

members of the Ottoman Government as well as those of its agents who

are found to be involved in such massacres.96

Despite that the responsibility of the Ottoman Empire for ‘these new crimes against humanity’

was clearly concluded, the disunity among the European Powers -among others- prevented

its application.97

The Commission on the Responsibility of the Authors of the War and on Enforcement of

Penalties was established in 1919, January 25. The Commission investigated the violation of

international law by Germany and its allies during the war. The report used the wording

“Violations of the Laws and Customs of War and of the Laws of Humanity”. The description of

these concepts is similar to the definition of genocide or crimes against humanity. The

93 International Committee of the Red Cross, The Martens Clause and the Laws of Armed Conflict, available at http://www.icrc.org/eng/resources/documents/misc/57jnhy.htm. 94 W. SCHABAS, N. BERNAZ, Routledge Handbook of International Criminal Law, Abingdon, Routledge, 2011, p. 121-122. 95 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2000, p. 16. 96 http://www.armenian-genocide.org/popup/affirmation_window.html?Affirmation=160 97 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2000, p. 17.

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Commission held that ”all enemy persons alleged to have been guilty of offences against the

laws and customs of war and the laws of humanity be excluded from amnesty and brought

before national tribunal or the High Tribunal”.98 The Commission encouraged the

establishment of an international “High Tribunal”.

A “Memorandum of Reservations” was submitted by the United States challenging the legal

competence of the Commission, as well the entire concept of crimes against “Laws of

Humanity”. The United States suggested that the heads of state should be tried for “acts of

state” and that leaders should be held liable for their subordinates.99 At the Peace Conference,

propositions were made (including by members of the Commission) to create a new category

of war crimes, named “crimes against the laws of humanity”, with the purpose of addressing

the massacre of the Armenians.100

For the Grand National Assembly of Turkey, the Allies suggested prosecution for

“mistreatment of prisoners” and for “deportations and massacres” of the Armenian minorities

in the Ottoman Empire. On British initiative, it was proposed to punish the Turks for the

Armenian massacres by criminal trial of high officials to serve as a precedent. Prosecution

should be based on the “common law of war”, or the “customs of war and rules of

international law”.101 But, as seen above, these initiatives were never implemented.

3.7 The Beginning of International Prosecution of War Crimes

In the aftermath of the First World War the Versailles Treaty provided for the establishment

of an international tribunal to examine the allegations of crimes committed by Germany.

Germany did not comply with these stipulations of the Treaty of Versailles, instead

proceedings known as the “Leipzig trials” were held before German judges. The Treaty of

Sèvres of 1920, which had foreseen trials for war crimes and crimes against the laws of

humanity was rejected by Turkey. The Treaty of Lausanne of 1923, which introduced a

“Declaration of Amnesty” for all offences committed between 1914 and 1922 and replaced

the Treaty of Sèvres, was accepted by Turkey.102

Following World War II, on 1 November 1943 the allies adopted the Moscow Declaration, in

which they gave their intention to prosecute the Nazis for war crimes. The London Agreement

of August 8, 1945 adopted by the United Kingdom, France, the United States and the Soviet

Union, provided for the legal framework for the prosecutions at Nuremberg. On 8 August

1945, the Agreement for the Prosecution and Punishment of Major War Criminals of the

98 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2000, p. 17-18. 99 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 22. 100 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 23. 101 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 24-25. 102 W. SCHABAS, The UN International Criminal Tribunals: the former Yugoslavia, Rwanda and Sierra Leone, Cambridge, Cambridge University Press, 2006, p. 10.

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European Axis and Establishing the Charter of the International Military Tribunal (IMT) was

adopted. The defendants were convicted for the following crimes: crimes against peace, war

crimes and crimes against humanity. Similar to the Nuremberg Tribunal, the Allies established

the International Military Tribunal for the Far East in Tokyo. Following the successes of

Nuremberg and Tokyo, initiatives were taken to establish a permanent international criminal

court.103

3.8 The Nuremberg Trials (1945-1946): Reparation after World War II

The Charter of the International Military Tribunal for the Trial of German Major War Criminals

(Nuremberg Charter) constitutes the first codification of crimes against humanity.104 The

Nuremberg Charter defines crimes against humanity as:

murder, extermination, enslavement, deportation, and other inhumane

acts committed against any civilian population, before or during the

war, or persecutions on political, racial or religious grounds in execution

of or in connection with any crime within the jurisdiction of the Tribunal,

whether or not in violation of the domestic law of the country where

perpetrated.105

The Charter of the International Military Tribunal for the Far East (Tokyo Tribunal) has a similar

definition. This was a revolutionary step to ensure punishment of perpetrators of large-scale

violations within a nation’s own state borders. It was necessary that crimes against humanity

were committed in connection with other crimes, war crimes and crimes against peace, in

order to fall within the jurisdiction of the Nuremberg Tribunal. Crimes against humanity are

also protected under Control Council Law No. 10, which gave the Allies jurisdiction to

prosecute war criminals.106 Control Council Law No. 10 did not require crimes against

humanity to be committed in connection with war crimes or crimes against peace.107

Imprisonment, torture and rape were added to the category of inhumane acts.

The International Law Commission (ILC) adopted the 1954 Draft Code of Offences against the

Peace and Security of Mankind. Crimes against humanity were defined as “inhumane acts or

persecutions committed against any civilian population on social, political, racial, religious or

cultural grounds by the authorities of a State or by private individuals acting at the instigation

103 W. SCHABAS, The UN International Criminal Tribunals: the former Yugoslavia, Rwanda and Sierra Leone, Cambridge, Cambridge University Press, 2006, p. 10. 104 NERSESSIAN, D., “Comparative approaches to punishing hate: the intersection of genocide and crimes against humanity”, Stanford Journal of International Law 2007, p. 226-227. 105 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, 82 U.N.T.S. 280, Aug. 8, 1945, Article 6 (c). (hereinafter Charter of the International Military Tribunal). 106 Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50-55 (1946). 107 SCHABAS, W. & BERNAZ, N., Routledge Handbook of International Criminal Law, Abingdon, Routledge, 2011, p. 123.

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or with the toleration of such authorities”.108 This definition did not require crimes against

humanity to be committed in connection to war crimes or crimes against peace. State

participation and discrimination of people109 were required until 1991, when the ILC deleted

both requirements. The definition of crimes against humanity was again revised in the 1996

Draft Code and required scale or systemization. The requirement of state involvement was

altered to “instigated or directed by a Government or by an organization or group”.110 The list

of inhumane acts was also expanded from exhaustive to an exemplary list.111

3.9 The Convention on the Prevention and Punishment of the Crime of Genocide

(1948)

The Genocide Convention ‘defines’ genocide in its article 2 as:

any of the following acts committed with intent to destroy, in whole or

in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to

bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.112

The same definition reappears in Article 2(2) of the statute of the ad hoc International Criminal

Tribunal for Rwanda (hereinafter ICTR, 1994), in Article 4(2) of the statute of the ad hoc

International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY, 1993), and in

Article 6 of the Rome Statute of the International Criminal Court (hereinafter ICC, entered into

force in 2002). Jurisprudence has made significant changes to the definition of genocide and

the criteria have been widened since the adoption of the Genocide Convention.

The acts falling under (a) can be regarded as the equivalent of “murder”, which requires

intentional killing. The acts under (b) require the bodily or mental harm to be serious. It’s not

required that the harm is permanent and irreversible. Subsection (c) refers to ‘lack of proper

housing, clothing, hygiene and medical care or excessive work or physical exertion’. The

measures under (d) strive to prevent the reproduction of the group. For example: sterilization,

rape, prohibition of marriages, segregation of sexes or forced birth control. The last act under

108 Draft Code of Offences against the Peace and Security of Mankind (1954), Article 2 (11), available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_3_1954.pdf. 109 SCHABAS, W. & BERNAZ, N., Routledge Handbook of International Criminal Law, Abingdon, Routledge, 2011, p. 124. 110 Draft Code of Crimes against the Peace and Security of Mankind (1996), Article 18, available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_4_1996.pdf. 111 W. SCHABAS, N. BERNAZ, Routledge Handbook of International Criminal Law, Abingdon, Routledge, 2011, p. 124. 112 Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide.

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(e) is being done with the purpose of making sure that children lose their cultural identity.113

From the list of the prohibited acts, it is clear that the specifically targeted victims are

individuals, but the ultimate victim is the group as a whole.114

3.9.1 CLOSER DEFINITION OF THE CRIME OF GENOCIDE: GENOCIDAL INTENT

The genocidal intent, namely the specific intent “to destroy, in whole or in part, a national,

ethnical, racial or religious group as such” plays a crucial role.115 In the Stakić judgment, the

ICTY concluded that the genocidal intent enjoys a wide margin of appreciation. The proof of

intent can be provided by different means, either the facts, the concrete circumstances, a

pattern of purposeful action, or a combination of the foregoing categories.116

A genocide is committed with the intent to “destroy” a specific group. In the Krstić case, the

ICTY Trial Chamber held that “customary international law limits the definition of genocide to

those acts seeking the physical or biological destruction of all or part of the group.”117 This

means that attacks on the cultural or sociological characteristics of the group with the intent

to exterminate the elements which make them different from the rest of the society are

excluded. In the Blagojević case, the ICTY Trial Chamber explained that the term “destroy”

could refer to the forcible transfer of a population. In that case, it was concluded that the

forcible transfer of individuals could lead to the material destruction of the group.118

In the Krstić case the ICTY Trial Chamber noted that the targeted victims were part of a

national group, in particular the Bosnian Muslims. The ICTY emphasized that the intention to

destroy a “substantial part of the group” suffices, it is not necessary to be a very important

part.119 The Tribunal ruled that a genocide was committed against the Bosnian Muslims of

Srebrenica.120 Military-aged men and boys were targeted with the July 1995 Srebrenica

massacre, they represented a significant part of the Muslim community:

Granted, only the men of military age were systematically

massacred, but it is significant that these massacres occurred at

a time when the forcible transfer of the rest of the Bosnian

Muslim population was well under way. The Bosnian Serb forces

could not have failed to know, by the time they decided to kill all

the men, that this selective destruction of the group would have

a lasting impact upon the entire group. Their death precluded

any effective attempt by the Bosnian Muslims to recapture the

113 W. SCHABAS, N. BERNAZ, Routledge Handbook of International Criminal Law, Abingdon, Routledge, 2011, p. 111. 114 W. SCHABAS, N. BERNAZ, Routledge Handbook of International Criminal Law, Abingdon, Routledge, 2011, p. 110. 115 Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide. 116 Prosecutor v. Stakić, ICTY, Case No. IT-97-24-T, (31 July 2003), paras. 430, 435, 686. 117 Prosecutor v. Radislav Krstić (TC), ICTY, Case No. IT-98-33-T (2 August 2001), paras. 576, 580. 118 Prosecutor v. Rod Blagojević, ICTY, Case No. IT-02-60-T (17 January 2005), paras. 595- 602. 119 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 9. 120 Prosecutor v. Radislav Krstić (TC), ICTY, Case No. IT-98-33-T (2 August 2001), para. 590.

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territory. Furthermore, the Bosnian Serb forces had to be aware

of the catastrophic impact that the disappearance of two or

three generations of men would have on the survival of a

traditionally patriarchal society, an impact the Chamber has

previously described in detail. The Bosnian Serb forces knew, by

the time they decided to kill all of the military aged men, that the

combination of those killings with the forcible transfer of the

women, children and elderly would inevitably result in the

physical disappearance of the Bosnian Muslim population at

Srebrenica.121

In Jelisić judgment the ICTY noted that the existence of a plan is not required to proof the

specific intent, it may however lighten the burden of proof.122

3.9.2 CLOSER DEFINITION OF THE CRIME OF GENOCIDE: MATERIAL ACTS OF GENOCIDE

The ICTR explained that the act of killing exists of two material elements. The first element

requires that the victim is dead. The second that the death is inflicted by the accused due to

an unlawful act or omission. The act or omission needs to be the substantial cause of death,

but not the only one. Evidence of the intent to kill can be demonstrated by the fact “that the

accused intended to inflict serious bodily injury in reckless disregard of human life”.123

The ICTR held in the Akayesu case that “serious bodily or mental harm, without limiting itself

thereto, to mean acts of torture, be they bodily or mental, inhumane or degrading treatment,

persecution”.124 The ICTR has opened up the scope to torture and inhuman or degrading

treatment. Inhuman treatment and deportation can lead to serious bodily or mental injury. In

Akayesu, rape and sexual violence may be qualified as genocide as well.125 Causing serious

bodily or mental harm, implies that the harm has to be serious, not permanent or

irreversible.126 In the Krstić case, the ICTY concluded that the survivors of the Srebrenica

massacre fall within the scope of bodily and mental harm. In the Blagojević case, the Trial

Chamber made a reference to the Srebrenica massacre:

The trauma and wounds suffered by those individuals who managed to

survive the mass executions does constitute serious bodily and mental

harm. The fear of being captured, and, at the moment of the separation,

the sense of utter helplessness and extreme fear for their family and

121 Prosecutor v. Radislav Krstić (TC), ICTY, Case No. IT-98-33-T (2 August 2001), para. 595. 122 Prosecutor v. Goran Jelisić, ICTY, Case No. IT-95-10-A, (5 July 2001), para. 53. 123 W. SCHABAS, The UN International Criminal Tribunals: the former Yugoslavia, Rwanda and Sierra Leone, Cambridge, Cambridge University Press, 2006, p. 172-173. 124 Prosecutor v. Jean-Paul Akayesu (TC), ICTR, Case No. ICTR-96-4-T (2 September 1998), para. 504. 125 Prosecutor v. Jean-Paul Akayesu (TC), ICTR, Case No. ICTR-96-4-T (2 September 1998), paras. 731-733. 126 Prosecutor v. Jean-Paul Akayesu (TC), ICTR, Case No. ICTR-96-4-T (2 September 1998), para. 502.

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friends’ safety as well as for their own safety, is a traumatic experience

from which one will not quickly-if ever-recover. Furthermore, the Trial

Chamber finds that the men suffered mental harm having their

identification documents taken away from them, seeing that they would

not be exchanged as previously told, and when they understood what

their ultimate fate was. Upon arrival at an execution site, they saw the

killing fields covered of bodies of the Bosnian Muslim men brought to

the execution site before them and murdered. After having witnessed

the executions of relatives and friends, and in some cases suffering from

injuries themselves, they suffered the further mental anguish of lying

still, in fear, under the bodies-sometimes of relative or friends-for long

hours, listening to the sounds of the executions, of the moans of those

suffering in pain, and then of the machines as mass graves were dug.127

Deliberately imposing conditions with the intent to destroy the group implies a method of

destruction that differs from killings, such as “subjecting the group to a subsistence diet,

systematic expulsion from homes and denial of the right to medical services”, as lack of proper

housing, clothing and hygiene or excessive work or physical exertion.128

3.9.3 PROSECUTION FOR THE CRIME OF GENOCIDE

Genocide can be prosecuted by national or international courts. Prosecution by international

criminal tribunals is more common however. Only a few cases of genocide have been brought

before national criminal courts based on the principle of universality, scuh as Eichmann.129

The drafters of the Genocide Convention prefer assessment by national courts, to avoid the

issue of international jurisdiction. Only when these courts would be found unable, the case

would be heard before an international tribunal.130 Scholar Schabas argues in favor of bringing

major cases before international trials. Article 5 of the Genocide Convention provides the legal

basis for the trial and punishment of persons guilty of genocide.131 Article 6 stipulates that the

courts of the territory where the crime took place have jurisdiction over the case. This article

also foresees the possibility to try crimes of genocide before an international criminal court as

well.132 Article 7 of the Genocide Convention specifies that a state cannot refuse to extradite

for political crime purposes.133

Article 5 of the Genocide Convention requires states to implement their obligations under

domestic law.

127 Prosecutor v. Rod Blagojević, ICTY, Case No. IT-02-60-T (17 January 2005), para. 647. 128Prosecutor v. Jean-Paul Akayesu (TC), ICTR, Case No. ICTR-96-4-T (2 September 1998), para. 506. 129 A. CASSESE, International law, Oxford, Oxford University Press, 2005, p. 443. 130 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 400. 131 Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide. 132 Article 6 of the Convention on the Prevention and Punishment of the Crime of Genocide. 133 Article 7 of the Convention on the Prevention and Punishment of the Crime of Genocide.

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The Contracting Parties undertake to enact, in accordance with their

respective Constitutions, the necessary legislation to give effect to the

provisions of the present Convention and, in particular, to provide

effective penalties for persons guilty of genocide or any of the other acts

enumerated in Article 3.134

In the travaux préparatoires, it is given that Article 5 goes beyond the obligation to insert the

crime of genocide in domestic law. It could be extended to the obligation for states to foresee

effective legislation and to take measures to prevent genocide. The Genocide Convention is

not self-executing, because it cannot be applied without any additional modifications.135 For

example, in the Genocide Convention it is not mentioned what punishment the crime of

genocide should receive.

Jurisdiction in the field of criminal law is based on five grounds: territory, protection,

nationality of the offender (or active personality), nationality of the victim (or passive

personality) and universality. Territory is used most commonly, in the Lotus case, the forum

delicti commissi was preferred.136

Universal jurisdiction applies to a limited number of crimes, according to which any state has

the right to try the offender. In customary international law these crimes are: piracy, slave

trade and traffic in children and women. In the case of genocide, difficulties with prosecutions

can rise. States where genocide took place could be reluctant to try the perpetrators and the

perpetrators could still have power in that country, as has been the case in the Ottoman

empire following the Armenian Genocide. Therefore, universal jurisdiction should be a

possibility for the crime of genocide. The International Law Commission, in its draft Code of

Crimes, pointed out that universal jurisdiction cannot be read into the Genocide

Convention.137 Article 6 says that:

Persons charged with genocide or any of the other acts enumerated in

Article 3 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.

Following Article 6 of the Genocide Convention, genocide will be punished either by a

competent tribunal of the territorial State, or by “such international penal tribunal as may

134 Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide. 135 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 403- 405. 136 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 409- 411. 137 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 410- 411.

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have jurisdiction”. The Genocide Convention did not decide on the hierarchy between the

two. The first international tribunal to be established was the International Criminal Tribunal

for the former Yugoslavia in 1993. In 1994, a second very similar body was established for the

genocide in Rwanda. Both ad hoc tribunals, imposed by the UN Security Council, had the

mandate to prosecute charges of genocide within their temporal and territorial jurisdiction.

In 2002, the Rome Statute of the International Criminal Court established the ICC.138 The ICTR

held trials on the genocide that occurred between April and July 1994. Among the cases

brought before the ICTY there was one conviction for genocide, the Krstić case, and the

Appeals Chamber confirmed that “acts of genocide had been committed at Srebrenica in

Bosnia and Herzegovina in 1995”139.

The difference between the Rwanda Tribunal and the Yugoslavia Tribunal was that for Rwanda

the genocide was directed at the highest level of the Rwandan government. While for

Yugoslavia decisions were taken by independent military leaders locally.140

138 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 443- 444. 139 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004). 140 W. SCHABAS, Genocide in International Law: the crime of crimes, Cambridge, Cambridge University Press, 2009, p. 459.

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4 Case-study: Reparation for the Armenian Genocide

In this final chapter, the purpose was to examine to what extent reparation for the Armenian

Genocide is feasible, based on the existing legal order. It is a customary rule of law that states

are responsible for wrongful acts.141 The violation of a treaty obligation constitutes a wrongful

act and gives rise to the obligation to make reparation.142 Full reparation exists of three

remedies; restitution, compensation and satisfaction. The different dimensions of reparation

can be granted in combination or in a single manner. If the damage cannot be repaired by

restitution or compensation, then reparation will be provided through satisfaction.

Satisfaction refers rather to acts of acknowledgement, apology or regret.143 The case under

study will be performed through three steps. The first step constitutes of the examination of

whether the 1915 events can be classified as internationally wrongful acts in the legal term?

In the second step, I investigate whether the internationally wrongful acts can be attributed

to the responsible state in question? This also raises the question of state succession. In the

third and final step, I touch upon the question of reparation in its various forms.

4.1 Internationally Wrongful Acts?

Article 13 of the ILC’s Articles on State Responsibility for International Wrongful Acts is

important in this regard, it stipulates that

An act of a State does not constitute a breach of an international obligation

unless the State is bound by the obligation in question at the time the act

occurs.

4.1.1 VIOLATION OF THE TREATY OF BERLIN?

The first Treaty discussed in chapter two, is the Treaty of Berlin of 1878. The Treaty of Berlin

had two important provisions in regard to the Armenian minorities living in the Ottoman

Empire in the period of late 19th and early 20th century.

Article 62 of the Treaty of Berlin emphasized the importance of equality of all Ottoman

subjects, regardless of their religion. Article 61 of the 1878 Treaty of Berlin provided that

In no part of the Ottoman Empire shall difference of religion be alleged

against any person as a ground for exclusion or incapacity as regards the

discharge of civil and political rights, admission to the public

employments, functions and honours, or the exercise of the various

141 Resolution 56/83 Responsibility of States for Internationally Wrongful Acts. 142 Resolution 56/83 Responsibility of States for Internationally Wrongful Acts. 143 M.COHEN, The Comprehensive Guide to International Law, Brugge, die Keure, p. 143.

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professions and industries ... The right of official protection by ... the

Powers in Turkey is recognized.144

Article 61 of the 1878 Treaty of Berlin imposed an obligation on the Ottoman

government to effectuate the foreseen reforms –of egalitarian principles- and to

ensure protection of the Ottoman Armenian against others. Article 61 of the 1878

Treaty of Berlin stipulates

The Sublime Porte undertakes to carry out, without further delay, the

improvements and reforms demanded by local requirements in the

provinces inhabited by the Armenians, and to guarantee their security

against the Circassians and Kurds. It will periodically make known the

steps taken to this effect to the Powers, who will superintend their

application.145

The treaty implied furthermore that the Armenians were placed “under the express

protection of the international taw of contract, and under the control of the Great Powers.

The natural obligations of the Turkish Government to all its subjects have become, as regards

the Armenians, strict engagements with the States which are parties to the Treaty [of Berlin],

and as regards all the Christian Turkish subjects in Asia strict engagements with England”.146

The Treaty of Berlin proofs that by 1878 the Armenian question was no longer an internal

matter but had taken on international dimensions. Given that the Armenian minority was

protected by an international treaty, it follows that when the Ottoman government violated

its treaty obligations, these violations constituted an internationally wrongful act.147 The

treaty of Berlin ensured the protection of the Armenians, and included an obligation to carry

out the promised reforms towards the Armenian minority population. The Ottoman Empire

failed in doing so. The massacres and deportation in 1915 clearly testify to their failure. The

Turkish court martials, as discussed in chapter two, clearly support this argument.

A wrongful act of a state, in the case under study the violation of a treaty obligation, is

followed by the requirement to make reparation. This has been confirmed in the Chorzow

Factory case of 1928 before the Permanent Court of International Justice and article 31 of the

‘ILC Articles on the Responsibility of States for Internationally Wrongful Acts’.148

144 Article 62 of the Treaty of Berlin. 145 Article 61 of the Treaty of Berlin. 146 R. ROLIN-JACQUEMYNS, Armenia, the Armenians and the Treaties, London, John Heywood, 1891, p. 40. 147 ROSCINI, M., “Establishing State Responsibility for Historical Injustices: The Armenian Case”, International Criminal Law Review, Vol. 14 (2014), p. 308. 148 M.COHEN, The Comprehensive Guide to International Law, Brugge, die Keure, p. 143.

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4.1.2 VIOLATION OF THE TREATY OF SÈVRES?

The 1920 Treaty of Sèvres was the ultimate tool to confront the Ottoman Empire with the

crimes committed against the Ottoman Armenians in 1915. This was envisioned by three key

measures. The first was to conclude on the criminal responsibility of the perpetrators of the

massacres under international law. Article 230 of the Treaty of Sèvres laid down the procedure

to punish “those 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.”149 Secondly,

reparation for confiscated property on the basis of illegal ‘laws on abandoned property’ was

foreseen in article 144 of the Treaty of Sèvres.150

Article 144 of the Treaty of Sèvres foresaw reparation in the form of restitution:

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, 1914.151

Thirdly, with article 89 of the Treaty of Sèvres, the First Armenian Republic was born, which

included Eastern as Western Armenia.152 This measure was found essential for the viability of

the Armenian population.

Although the Treaty of Sèvres was never ratified by the Ottoman Empire, it indicated that the

questions of criminal responsibility of the perpetrators and granting reparation to the victims

of the Armenian Genocide was a given. Back then, this was not a historical, nor a political

question. However, this question of granting reparation to the Armenian community has

become debatable by the current environment, while this was not the case immediately after

the events in 1920.

4.1.3 VIOLATION OF THE TREATY OF LAUSANNE?

The Treaty of Lausanne of 1923 substituted the Treaty of Sèvres. The relevant provisions, as

discussed under the Treaty of Sèvres, were not readopted in the Treaty of Lausanne, nor did

the Treaty of Lausanne grant any alternative rights to the victims of the 1915 massacres and

149 Article 230 of the Treaty of Sèvres. 150 Article 144 of the Treaty of Sèvres. 151 Article 144 of the Treaty of Sèvres. 152 This corresponded with Armenian provinces in the former Ottoman Empire.

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deportations. This makes that claims related to reparation for the Armenian Genocide do not

fall within the scope of the Treaty of Lausanne.

4.1.4 VIOLATION OF THE GENOCIDE CONVENTION?

The word ‘genocide’ came into existence after 1915. The Convention on the Prevention and

Punishment of the Crime of Genocide was adopted in 1948, ratified in 1951. One of the key

focusses of the U.N. Genocide Convention is the prevention of genocide by taking a deterrent

approach. This implies the important role of condemning past genocides and prohibiting the

perpetrator group from keeping the fruits of its committed crime.153 In this section, the main

goal is to investigate whether or not the U.N. Genocide Convention can be applied

retroactively, in specific to the case under study. Secondly, I will examine whether in casu the

acts were committed with the intent to destroy, in whole or in part, a national, ethnical, racial

or religious group.154 In other words, were the 1915 massacres and deportations committed

with the genocidal intent? For this analysis, I based my case on the Krstić case, given the

factual similarities of the genocide in Screbrenica and the Armenian Genocide.

The U.N. Genocide Convention is rather considered to strengthen pre-existing rights, since it

merely confirmed existing international law. The parties of the 1948 Genocide Convention

confirmed that genocide, whether committed in time of peace or in wartime, is a crime under

international law which they undertake to prevent and to punish.155 The specific wording of

‘confirm’ in article 1 of the Genocide Convention supports that the illegality of genocide was

already recognized as a principle of international law. The Genocide convention merely

codified the prohibition of the crime, which was already binding international law.156 The

International Court of Justice notes in its 1951 Advisory Opinion that

The origins of the Convention show that it was the intention of the United Nations to

condemn and punish genocide as ‘a crime under international law’ involving a denial

of the right of existence of the entire human groups, a denial which shocks the

conscience of mankind and results in great losses to humanity, and which is contrary

to moral law and aims of the United Nations. The first consequence arising from this

conception is that principles underlying the Convention are principles which are

recognized by civilized nations as binding on all states, even without any conventional

obligation.157 [Own interpretation]

William Schabas remarks that if “only a few months after the entry into force of the

153 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 31. 154 Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide. 155 Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide. 156 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 39. 157 Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, May 28, 1951, Advisory Opinion, International Court of Justice, ICJ Reports 1951 p. 15-69.

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Convention, the ICJ considered the principles underlying the Convention as binding on states,

regardless of whether they had ratified the Convention” it implies that these principles were

an existing practice –being applied- before the adoption of the Convention.158

The U.N. Commission on Human Rights noted in regard to the Genocide Convention as

declarative of pre-existing international law that: “It is therefore taken for granted that as a

codification of existing international law the Convention on the Prevention and Punishment

of the Crime of Genocide did neither extend nor restrain the notion genocide, but that it only

defined it more precisely.”159

Article 1 of the 1968 United Nations Convention on the Non-Applicability of Statutory

Limitations to War Crimes and Crimes Against Humanity rejects statutory limitations for the

crime of genocide and crimes against humanity, irrespective of the date of their

commission.160 The French Court of Cassation ruled in the case of Klaus Barbie that “the

prohibition on statutory limitations for crimes against humanity is part of customary

international law”.161

Article 1 of the 1968 United Nations Convention on the Non-Applicability of Statutory

Limitations to War Crimes and Crimes Against Humanity stipulates

No statutory limitation shall apply to the following crimes, irrespective of the

date of their commission:

(a) War crimes as they are defined in the Charter of the International Military

Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13

February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the

United Nations ...

(b) Crimes against humanity whether committed in time of war or in time of

peace as they are defined in the Charter of the International Military Tribunal,

Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February

1946 and 95 (I) of 11 December 1946 of the General Assembly of the United

Nations ...162

In addition, article 15 of the 1968 United Nations Convention on the Non-Applicability of

Statutory Limitations to War Crimes and Crimes Against Humanity specifies

158 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 39. 159 U.N. Commission on Human Rights, Report of the Ad How Working Group of Experts on Southern Africa, February 28, 1969. 160 United Nations General Assembly, Convention on the Non-Applicability of Statutory limitations to War Crimes and Crimes Against Humanity, November 26, 1968. 161 Fédération nationale des deportés et internés et patriots et al v. Barbie, October 6, 1983, Court of Cassation (France), International Law Reports, Vol. 78, p. 125. 162 Article 1 of the 1968 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

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The States Parties to the present Convention undertake to adopt, in accordance

with their respective constitutional processes, any legislative or other measures

necessary to ensure that statutory or other limitations shall not apply to the

prosecution and punishment of the crimes referred to in articles I and II of this

Convention and that, where they exist, such limitations shall be abolished.163

The preamble of the Genocide Convention underlines that “at all periods of history genocide

has inflicted great losses on humanity”.164 According to Article 31 (2) of the Vienna Convention

on the Law on Treaties the preamble is to be taken into consideration, when interpreting the

Treaty, as a part of the context of a treaty.165 The preamble is not legally binding, but it is

closely connected to the purpose of the Treaty.166

The specific wording of the Genocide Convention does not exclude its retroactive application,

nor does it include a provision permitting a retroactive application. However, it is generally

accepted that international law relies on the principle of non-retroactivity. As laid down in

Article 28 of the Vienna Convention: “unless a different intention appears from the treaty or

is otherwise established, its provisions do not bind a party in relation to any act or fact which

took place or any situation which ceased to exist before the date of the entry into force of the

treaty with respect to that party.”167 This is the rule of non-retroactivity of a treaty and has

been the subject-matter in the Ambatielos case before the International Court of Justice on

July 1, 1952168:

These points raise the question of the retroactive effect to Article 29 of

the Treaty of 1926 and are intended to meet what was described during

the hearings as ‘the similar clauses theory’. To accept this theory would

mean giving retroactive effects to Article 29 of the Treaty of 1926

whereas article 32 of this treaty states that the treaty, which must mean

all the provisions of the Treaty, shall come into force immediately upon

ratification. Such a conclusion might have been rebutted if there had

been any special clause or any special object necessitating retroactive

interpretation. There is no such clause or object necessitating

retroactive interpretation. There is no such clause or object in the

present case. It is therefore impossible to hold that any of its provisions

must be deemed to have been in force earlier.

163 Article 15 of the 1968 United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. 164 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 39. 165 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 40. 166 M.COHEN, The Comprehensive Guide to International Law, Brugge, die Keure, p. 442. 167 Vienna Convention on the Law, may 23, 1969, United Nations. 168 M.COHEN, The Comprehensive Guide to International Law, Brugge, die Keure, p. 455.

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According to Ian Sinclair, the choice of words used for the beginning phrase of Article 28 of

the Vienna Convention was to make retroactive effects in certain cases possible.169 Ian Sinclair

based this theory on the commentary of the International Law Commission, which stated that

the specific wording was used “in order to allow for cases where the very nature of the treaty

rather than its specific provisions indicates that it is intended to have certain retroactive

effects.”170 Before the adoption of the Genocide Convention in 1948, there were international

treaties that applied retroactively.171 For instance the Treaty of Versailles of 1919 was aimed

at the prosecution “of the German Emperor for a supreme offence against international

morality and sanctity of treaties”.172 Another example was the Treaty of Sèvres which

contemplated the prosecution of “the massacres committed during the continuance of the

state of war on territory which formed part of the Turkish Empire on the 1st of August,

1914”.173 Despite that the Treaty of Sèvres was not ratified, the intention of the Treaty

remains clear. The Charter of the International Military Tribunal also allowed the retroactive

application. The retroactive application was not explicitly mentioned in the international

treaties, but implicitly inferred from. There are however various international treaties with

specific provisions on its non-retroactive application. For instance, the 1998 Statute of the

International Criminal Court includes a provision that specifically stipulates that “the Court

has jurisdiction only with respect to crimes committed after the entry into force of this

Statute.”174 The need to include such a provision provides that the principle of non-

retroactivity is not that straightforward when it comes to treaty formation. Thus the absence

of such a provision does not automatically imply that the treaty cannot be applied

retroactively.175 Even more, based on Treaty practice it could be defendable that the Genocide

Convention can be applied retroactively.

Further, based on article 31 (1) of the Vienna Convention on the Law of Treaties, the main rule

to interpret is according to “the ordinary meaning given to the terms of the treaty in their

context and in the light of its object and purpose.” The purpose of the Genocide Convention

is preventing future acts by punishing the past. The preamble of the Genocide Convention, is

taken into consideration for the interpretation of the context. Therefore, the retroactive

application of the Genocide Convention is compatible with the object and purpose of the

Convention. The retroactive application is required in order to ensure the objectives protected

by the Genocide Convention.

169 A. De Zayas, The Genocide against the Armenians 1915-1923 and the Application of the 1948 Genocide Convention, p. 7. 170 International Law Commission, Reports of the International Law Commission on the second of its seventeenth and on its eighteenth session, in Yearbook of the international law commission, 1966, 2 vols. 171 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 41. 172 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 42. 173 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 42. 174 Article 11 of the 1998 Statute of the International Criminal Court. 175 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 42.

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Whether or not the Genocide Convention can be applied retroactively is a highly disputed

matter, since the Genocide Convention itself does not provide a final answer. Although it can

be arguable, based on treaty practice for instance, that the Genocide Convention can be

applied retroactively and that the crime of genocide was a punishable act under international

law before 1944, before the word ‘genocide’ was invented. However, I also found author

Schabas’ interpretation quite interesting. William Schabas argues in his article that as more

times passes the adoption of the Genocide Convention, the less realistic its retroactive

applicability becomes. Schabas argues that the Convention does apply retroactively to the

Holocaust, but a more reluctant interpretation should be held towards the Armenian

Genocide. Schabas explains that the further one goes back in time, the less legislation on the

prohibition of genocide and crimes against humanity existed under international law. 176

Though I understand his point of view, punishing the crime of murder knows no boundaries

in time or place. In a closing note, based on my analysis I do not exclude the retroactive

application of the Genocide Convention.

4.1.4.1 Genocidal Intent & the Armenian Genocide

This part investigates the genocidal intent as regard to the atrocities inflicted on the Ottoman

Armenians in 1915. As there are similarities with the genocide in Srebrenica, this part will be

elucidated based on the Krstić judgement delivered by the ICTY.

The ICTY Appeals Chamber in the Krstić case ruled that the killing of Bosnian Muslims, as part

of a group, was planned and controlled by some members of the Main Staff of the Army of

Republika Srpska (also referred to as VRS or Bosnian Serb Army).177 The ICTY came to the

conclusion that targeting and killing only military-aged Bosnian Muslim men and boys with the

intent to destroy that group constitutes genocide.178

As mentioned above, the Trial Chamber had concluded that Bosnian Muslims were considered

to be a specific and distinct national group.179 The Appeals Chamber noted that “it is well

established that there was a conviction to commit genocide relies on the intent to destroy a

protected group “in part”, the part must be a substantial part of that group”.180 The Appeals

Chamber defined the substantiality as a numeric size of the targeted part181; the prominence

within the group; and the area of the perpetrators’ activity and control, as well as the possible

extent.182

176 SCHABAS, W., “Retroactive Application of the Genocide Convention”, University of St. Thomas Journal of Law & Public Policy, Vol. 4, No. 2 (2009-2010) p. 42. 177 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 35. 178 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 24. 179 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 6. 180 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 9. 181 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 12. 182 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 13.

45

The killing by the VRS was limited to men and boys only of military age. The VRS had previously

relocated the elderly, women, and children. The Trial Chamber concluded that “the intent to

kill the men [of military age] amounted to an intent to destroy a substantial part of the

Srebrenica Bosnian Muslim group”.183 The Trial Chamber's conclusion was upheld by the

Appeals Chamber. The Appeals Chamber held that, the VRS did not make a distinction

between military men and civilians.184 Further, the Appeals Chamber noted “the group killed

by the VRS included boys and elderly men normally considered to be outside that range”.185

The Appeals Chamber was of opinion that the Trial Chamber “was also entitled to consider

the long-term impact that the elimination of seven to eight thousand men from Srebrenica

would have on the survival of that community”. It was affirmed that:

Given the patriarchal character of the Bosnian Muslim society in

Srebrenica, the destruction of such a sizeable number of men would

“inevitably result in the physical disappearance of the Bosnian Muslim

population at Srebrenica.” Evidence introduced at trial supported this

finding, by showing that, with the majority of the men killed officially

listed as missing, their spouses are unable to remarry and,

consequently, to have new children. The physical destruction of the

men therefore had severe procreative implications for the Srebrenica

Muslim community, potentially consigning the community to

extinction.186

In addition, the forcible transfer of the elderly, women, and children of Srebrenica could be

seen as “an additional means by which to ensure the physical destruction of the Bosnian

Muslim community in Srebrenica”.187 The Appeals Chamber held that, “the transfer

completed the removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the

residual possibility that the Muslim community in the area could reconstitute itself”.188

Genocide cannot be established without the proof of the special intent. The Appeals Chamber

concludes that “where direct evidence of genocidal intent is absent, the intent may still be

inferred from the factual circumstances of the crime”.189 Furthermore, the Appeals Chamber

concluded that “in this case, the factual circumstances, as found by the Trial Chamber, permit

the inference that the killing of the Bosnian Muslim men was done with genocidal intent. As

already explained, the scale of the killing, combined with the VRS Main Staff’s awareness of

the detrimental consequences it would have for the Bosnian Muslim community of Srebrenica

183 Prosecutor v. Radislav Krstić (TC), ICTY, Case No. IT-98-33-T (2 August 2001), para. 634. 184 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 26. 185 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 27. 186 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 28. 187 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 31. 188 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 31. 189 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 34.

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and with the other actions the Main Staff took to ensure that community’s physical demise,

thus it is a sufficient factual basis for the finding of specific genocidal intent.”190

The Trial Chambers of the ICTY have noted repetitively that ‘deportation’ along with ‘inhuman

treatment’ is considered as cause for serious mental injury under Article II(b) and taken into

consideration to conclude on the genocidal intent. Forcible transfer accompanied with the

separation of group members along the road assumes the genocidal intent.191

Moreover, ICTY and ICTR judgments have repeatedly ruled that ‘systematic expulsion from

homes’ of the victimized group falls under ‘deliberate inflicting on the group of conditions of

life calculated to bring about its physical destruction, in whole or part’ as written in Article II(c)

of the Genocide Convention.192 Some destructive methods of genocide are not intended to

kill the victims immediately, these measures are covered by subsections (c) to (e) of Article II

of the Genocide Convention.193

Similar conditions were deliberately created by the Ottoman authorities in 1915 to affect the

basic human existence of the Ottoman Armenians. Especially the deportations or ‘forcibly

transfers’ along with ‘inhuman treatment’ of Ottoman Armenians were significant. The

previously examined genocide cases can serve as a reliable basis for analyzing the genocidal

intent of the case under study. In particular, the fact that in the Krstić case the genocidal intent

was inferred from factual circumstances can be of relevance for the case under study.

Testimonies of survivors and witnesses, consul reports, Turkish court-martial judgements and

even photographs serve as evidence for the material element, as described under article 2 (a)-

(e) of the Convention on the Prevention and Punishment of the Crime of Genocide, of the

crime of genocide. The Ottoman Armenians were subjected to murder, massacre, torture,

deliberate starvation, rape, abduction of woman and children, deportation of civilian

population, placement of civilians under inhumane conditions and pillage. All these actions

now fall under the current definition of genocide.

On May 6 1915, German Ambassador Wangenheim remarks regarding the deportation of the

Ottoman Armenians that “the clearing out of Armenians from their areas of large-scale

settlement continues”.194 The Austro-Hungarian ambassador Pallavicini referred to the

situation in July 1915 as a ‘death verdict’ for the affected Armenians and as a ‘total

extermination’. The successor Austro-Hungarian ambassador Graf von Trauttsmansdorff

wrote on 30 September that “nobody can deny that the Turks have used the accusations in

treachery as a pretext for the extermination of the Armenian race and have chiefly succeeded

190 Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004), para. 35. 191 H. Travis, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 158. 192 H. Travis, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 158. 193 H. Travis, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 158. 194 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 173.

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in doing this”. Similarly, the Italian consul spoke of the “wholesale execution of defenseless

persons, and hundreds of corpses found every day along the exile road”.195

[Own interpretation]

Armenians living under Ottoman rule, were a national, ethnical, racial and religious group

different from the Ottoman Turks.196 The Austrian consul of Adrianople informed his

colleagues that the Ottomans were “serious to exterminate the Armenian element”.197 As

mentioned above, a substantial part of the group in question must be targeted, in order to

speak of the crime of genocide. This was clearly the case, especially given that the

establishment of the First Armenian Republic in 1918 –after the 1915 massacres- was

motivated by the fact that the viability of the Armenian race was feared as long as they

remained under Ottoman rule.

The question now is whether the Ottoman Government manifested in 1915 the intent through

a pattern of actions, concrete wording, from factual circumstances or a combination of the

forgoing to commit atrocities against its Armenian population. The Republic of Turkey denies

the existence of the Armenian Genocide, arguing that Ottoman Armenians were merely

relocated from the eastern “war zone”. However, the atrocities committed against the

Armenian population were widespread present within the Ottoman Empire and not restricted

to the war zone as Turkey claims.198 The Turkish government has continued to defend that the

Ottoman officials were engaged in military operations rather than the destruction of civilian

groups and that the special intent was missing. During the final CUP congress in November

1918, Talat Pasha reported on the deportations and the killings as

There were many such incidents during the deportations. But in none of them

did the Sublime Porte act according to some predetermined decision. In many

places long-harbored hostilities erupted and led to abuse that we never

intended. Many officials displayed excessive justice and violence. In places,

countless innocent people were killed. This I must admit.199

Talat Pasha’s statement of November 1918 does not correspond with the testimony of

Vehip Pasha, Third Army Commander in 1916, in December 1918

These atrocities, committed according to a clear program and with

absolute intent, were carried out at the orders and supervision of first,

members of the Union and Progress Central Committee, and second, by

195 H. Travis, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 153. 196 Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide. 197 H. Travis, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 153. 198 YACOUBIAN, G., “Fincancial, Territorial, and Moral Reparations for the 1915 Armenian Massacres”, War Crimes, Genocide & Crimes against Humanity, Vol. 4 (2010), p. 86. 199 Quoted in T. AKCAM, T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 200, from Bayur, Turk Inkilabli Tarihi, vol. 3, part 3, p. 43.

48

leading members of government who, by casting aside law and

conscience, served as tools for the designs of the Committee.200

In addition, U.S. Ambassador Morgenthau recorded a conversation on August 3, 1915, with

Talat in which the latter said

That the Union and Progress Committee had carefully considered the matter in

all its details and that the policy which was being pursued was that which they

had officially adopted. Don’t get the idea that the deportations had been

decided upon hastily; in reality, they were the result of prolonged and careful

deliberation.201

This implies that the deportations of the Ottoman Armenians were properly ‘planned and

controlled’ by the Committee of Union and Progress.

Today, the systematic murder and forcibly transfer of Ottoman Armenians in 1915 are

internationally recognized as a genocide. To effectuate this in reparation and to base this case

on grounds of violation of the Genocide Convention, further developments on the retro-

activity of the Genocide Convention, which is up to date disputable, is necessary.

4.2 Are the Internationally Wrongful Acts of Individuals Attributable to the Ottoman

Empire

After investigating the violation of the abovementioned treaties as internationally wrongful

acts, it is necessary to examine whether these acts are attributable to the current Republic of

Turkey as the successor of the Ottoman Empire. Besides a violation of a primary rule, the

violation needs to be attributable to the state based on secondary rules of attribution, in order

to determine state responsibility.202 The relevant provisions are codified in Part One, Chapter

II of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts. As concluded

in the previous part, the acts against the Armenians in 1915 were indeed unlawful and in

violation of treaty obligations.

A state is responsible for the acts of its organs in violation of international law, regardless

whether the acts come from lower ranking officials or members of the government .203 State

responsibility arises even if an official does not act conform its authority or ordered

200 T. AKCAM, A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 164. 201 H. MORGENTHAU, Ambassador Morgenthau’s Story, Detroit Michigan, Wayne State University Press, 2003, p. 29. 202 These rules are to be found in chapter 2 of part one of the ILC’s Articles on State Responsibility. 203 BORCHARD, E., "Responsibility of States at the Hague Codification Conference”, American Journal of International Law (1930), p. 529.

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instructions—commonly referred to as acts ultra vires-.204 Author Eagleton remarked in 1928

that acts of lower- and higher-ranking state officials have the same consequences: "practice

does not justify the conclusion that no responsibility exists for injurious acts by inferior officials

of the state".205 The first question to address is whether the persons or entities who

committed the unlawful conduct were considered as organs of the state. If negative, then the

second step is to analyze whether the concerned persons or entities fall under the State’s

effective control, in line with the judgment of the International Court of Justice in the

Nicaragua case.206 In the Nicaragua case, the Court held that a state has control over the actors

dependent upon the state and therefore ”it would be right to equate” their acts ”for legal

purposes , with an organ of the state or acting on its behalf”.207 This only applies for actors

depending on the state.208 In the early 20th century, states were responsible for the conduct

of private persons or groups as irregular units, who were authorized or under the direction or

control of the state in question. The General Claims Commission –between Mexico and the

United States- held in 1927 that “it is difficult to determine with precision the status of these

guards as an irregular auxiliary of the army, the more so as they lacked both uniforms and

insignia, but at any they were ‘acting for’ Mexico or for its political subdivisions.”209

The deportations were planned by the leaders of the Committee of Union and Progress party.

The CUP was dominated by the triumvirate represented by Ismail Enver pasha (Minister of

War), Mehmet Talat Pasha (Interior Minister) and Ahmed Jemal Pasha (Minister of the Navy

and Commander of the Fourth Army).210 The CUP came to power in the Ottoman Empire after

committing a coup d’état in 1913. Interior Minister, Mehmet Talat Pasha, personally ordered

the removal of the Armenians on May 2, 1915.211

The second phase of the forcibly transfer of the Armenians, organization and execution, was

carried out by local powers with assistance of the army. The army would fulfill a supervising

role during the course of the deportations. The killings on the other hand were committed by

irregular units of the Ottoman Army, specific the newly formed Units of Special Organization.

The Special Organization Unit consisted of convicted criminals who were ordered to attack the

Armenian convoys (deportees) during their march to Syria and Northern Iraq.212 The 1919

Turkish domestic trials of the CUP leaders in Yozgat and Trabzon documented the direct

involvement of the Special Organizations Unit, under the direct control of the CUP party. In

204 M.COHEN, The Comprehensive Guide to International Law, Brugge, die Keure, p. 146. 205 EAGLETON, C., The Responsibility of States in International Law, New York, New York University Press, 1928 p. 45-50. 206 Nicaragua v. United States of America, 27 June 1986, para. 109, available at http://www.icj-cij.org/docket/files/70/6503.pdf. 207 Nicaragua v. United States of America, 27 June 1986, para. 109, available at http://www.icj-cij.org/docket/files/70/6503.pdf. 208 Nicaragua v. United States of America, 27 June 1986, para. 109, available at http://www.icj-cij.org/docket/files/70/6503.pdf. 209 U.S.A. v. United Mexican States, 15 July 1927, p. 267, available at http://legal.un.org/riaa/cases/vol_IV/7-320.pdf. 210 T. AKçAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 182. 211 T. AKçAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 182. 212 T. AKçAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 170.

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the Yozgat trial, Ottoman Army officers Halil Recai and Sahabettin, confirmed that they were

given orders not to intervene with the “slaughter” committed by this unit of armed gangs. The

judgment of the Yozgat trial concluded:

With the assistance of collaborating gendarmes, the units guarding the columns

(of deportees), comprised of habitual criminals and degenerates, drove the

defenseless Armenians out of towns, ostensibly for deportation. When they

had been (sufficiently) distanced from the towns, they were set upon by gangs

of bandits … who, after looting what they had in their possession, had them

killed…213

Civilians in some regions and mobs were further mobilized to ensure the effective

execution.214 A report sent by the Austrian consul in Aleppo described that “overall, the

Turkish population approves actions taken against the Armenians”.215 On August 5, 1915, Vice-

consul Scheubner-Richter reported that “ a broad section of the Turkish people, those blessed

with common sense and reason do not support the annihilation policy”.216

The law of attribution was already clearly established in 1915, when the deportations and

massacres of the Armenians occurred. Issues of retroactivity do not occur in relation to the

law of attribution in Part One, Chapter II of the ILC’s on State Responsibility.217

Based on these legal grounds, the actions of the de jure organs of the State, specifically the

Ottoman Ministers, local authorities and military officials, committed in 1915-1917 can be

imputed to the Ottoman Empire in line with article 4 of the ILC’s Articles on State

Responsibility for Internationally Wrongful Acts.218

The relation of the Special Organization Unit with the Ottoman Empire was not clear. The

Special Organization Unit was not considered as a de jure organ of the State. The following

step is to determine, according to the qualification done in the Nicaragua case, to what extent

the two actors, the Special Organization Unit and the Ottoman Empire, were connected. Did

the state in question, the Ottoman Empire, have control over the Special Organization Unit, in

order to equate their acts for legal purposes with an organ of the state or acting on behalf of

the government.219 The Ottoman authorities instructed the Special Organization Unit to

commit the attacks as part of the extermination operation. The Special Organization acted

under the direction or direct control of the Turkish state. The Turkish Criminal Court shared in

213 Yozgat Trial, Takvim-i Vekayu, no. 3617 (August 7, 1919). 214 T. AKCAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 196. 215 T. AKCAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 196. 216 Lepsius, Deutschland und Armenien, Document no. 129, p. 116-121. 217 ROSCINI, M., “Establishing State Responsibility for Historical Injustices: The Armenian Case”, International Criminal Law Review, Vol. 14 (2014), p. 312. 218 Article 4 of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts. 219 Nicaragua qualification, available at http://www.icj-cij.org/docket/files/70/6503.pdf.

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the Bahaettin Sakir Bey and Others judgment the actual purpose for the establishment of the

Special Organization Unit by the Cabinet: “it had been formed for the purpose of destroying

and annihilating the Armenians".220 At the Trial of Bahaettin Sakir Bey, it was proven that CUP

member Bahaettin Sakir Bey was actually the one directing the Armenian massacres in 1915

as head of the Special Organization Unit. The Verdict held that

The defendant CUP Central Committee member, Dr. Bahaettin Sakir Bey, left

Istanbul for the Trabzon and Erzurum provinces and other regions as the “head

of the Special Organization”. He assumend leadership of the armed gangs,

which had been set up and formed by a procession of criminals released from

prison… He sent them into action by delivering secret orders and instructions,

some verbal, others encoded, to certain people and officials, … to carry out the

atrocities and evil massacres of the population and the plunder of their

possessions, which were committed at different times and places during the

deportation of the Armenians.221

The Special Organization acted- attacking Armenian convoys of deportees- on direct orders of

the Ottoman authorities, therefore these acts are attributable to the Ottoman government

conform article 8 of the ILC’s Articles on State Responsibility for State Responsibility.222

Mobs were also involved in the harm done to the Armenians. Local mobs attacked the

Armenian deportees during their march. While their behavior might be the direct result of

incitement to attack by the authorities, their conduct cannot be attributed to the Turkish

state. The ILC’s Articles on State Responsibility do not contain provisions on incitement. State

responsibility only follows if the state gives instruction, gives direction or has control. The

Ottoman authorities did violate a primary obligation of due diligence since they failed to avoid

or even stop these actions.223

Claims for reparation require that the conduct was prohibited by an at the time existing

primary rule, binding upon the state in question. Secondly, the breach of the primary rule

should be attributable to the state under the rules of attribution.

Unless a Treaty decided otherwise, the treatment of nationals by the state was at the time a

sovereign matter. However, since 1878 a series of treaties, in particular the Treaty of Berlin of

1878, were adopted in favor of the Armenians. The 1878 Treaty of Berlin imposed obligations

on the Ottoman government to develop more favourable conditions as to protect the

220 Takvi-I Vekayi, no. 3771, 9 February 1920, Quoted in T. AKCAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 178. 221 Takvi-I Vekayi, no. 3771, 9 February 1920, Quoted in T. AKCAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 178. 222 Article 8 of the ILC’s Articles on State Responsibility for State Responsibility. 223 ROSCINI, M., “Establishing State Responsibility for Historical Injustices: The Armenian Case”, International Criminal Law Review, Vol. 14 (2014), p. 315.

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Christian minorities within the empire. In addition, the Treaty ensured the safety of the

Ottoman Armenians in particular by placing them under the supervision of the Great Powers.

The actions of the Ottoman government in 1915 -massacres and deportations of the Ottoman

Armenians- clearly breached the Treaty of Berlin. Violations of Treaty obligations are

considered to be internationally wrongful acts and incur state responsibility.

The conduct of the organs of the Ottoman Empire, the ministers, the local authorities, and of

the Ottoman military as organs can be attributed to the state on the basis of the Law on

Attribution in Chapter II of Part One of the ILC's Articles on State Responsibility.224 The conduct

of the Special Organization Unit can be imputed to the Ottoman Empire225, since the killings

were committed under the direct control of the Ottoman authorities –CUP party- as has been

proved through various telegraphs discovered by historian Taner Akçam.226 The mob attacks

cannot be attributed to the Ottoman Empire, because the connection is too vague.

4.2.1 STATE SUCCESSION: THE REPUBLIC OF TURKEY AS SUCCESSOR STATE?

In this part, I will address the question whether present day Turkey can be held responsible

for the internationally wrongful acts of the Ottoman Empire, before it ceased to exist as a

state in 1923. The first part deals with the question of the Republic of Turkey as the successor

state of the Ottoman Empire under international law. Based on several factors, I have come

to the conclusion that the current Republic of Turkey is not regarded as a new state, but

continued the international legal personality of the Ottoman Empire.227

The central question in this regard is whether the current Turkish republic represents the same

state which committed the internationally wrongful acts and should consequently bear

responsibility for it. The essential question is to determine whether the two entities share the

same international legal personality despite the difference in view of the territory, name and

government.228 The presumption that a state continues to exist unless the opposite

(extinction) is sufficiently proven, is accepted under international law.229 Another aspect is

needed to take into consideration is that under Ataturk’s control in 1920 the second phase of

the Armenian Genocide was completed.

Territory and international recognition are relevant aspects in this regard. Although the

current Turkish Republic is geographically smaller than the former Ottoman Empire, it still

224 Article 4 of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts. 225 Article 8 of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts. 226 T. AKCAM, The Armenian Genocide and the Question of Turkish Responsibility, Great Britain, Constable, 2007, p. 166. 227 DUMBERRY, P., “Turkey’s International Responsibility for Internationally Wrongful Acts Committed by the Ottoman Empire”, Revue Générale de Droit, Vol.42 (2012), p. 564. 228 DUMBERRY, P., “Turkey’s International Responsibility for Internationally Wrongful Acts Committed by the Ottoman Empire”, Revue Générale de Droit, Vol.42 (2012), p. 566. 229 DUMBERRY, P., “Turkey’s International Responsibility for Internationally Wrongful Acts Committed by the Ottoman Empire”, Revue Générale de Droit, Vol.42 (2012), p. 566.

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represents the most essential part of the former state. On an international level, the Republic

of Turkey is considered to represent the same state as the Ottoman Empire. For instance, the

Lausanne Treaty and the tribunal in the Ottoman Public Debt Case in 1925230 treated the

Republic of Turkey as the same state as the Ottoman Empire, despite important territorial

losses.231 Neither does a change of government lead to the creation of a new state. A changing

government does not affect the identity of the State, not even when the change happens

following a coup d’état.232 In 1920, Turkey changed from a monarchy into a republic, but this

did not result in the creation of a new state under international law. Lastly, changes in

population do not lead to discontinuity of the State.

The modern Turkish state does not identify itself with the Ottoman Empire, arguing that it was

reborn in 1923 as a new state with the adoption of the Treaty of Lausanne. Turkey claims that

as a new state it should not be held accountable for the debts of the former Ottoman

Empire.233 Turkey defended its position of discontinuity during the Lausanne conference.

Other states however never recognized Turkey as a new state because they wanted to secure

Turkey’s responsibility for the Ottoman Empire’s financial obligations.234 As a result, several

provisions in the Treaty of Lausanne express that Turkey was regarded as the successor state

of the Ottoman Empire.

As we have concluded that the Republic of Turkey is internationally considered as the

continuing state of the Ottoman Empire, the continuity of rights and obligations follows as

well. Case-law and state practice clearly hold in this context that the successor state remains

responsible for any international wrongful act committed before the date of succession.235

This means that the Republic of Turkey is responsible based on international law for

internationally wrongful acts occurred before 1923. This position is supported by a number of

legal scholars, including Oktem:

The legal continuity thesis [...] operates like a double-edged sword. The continuing

State is ipso jure entitled to the predecessor's rights, but is also bound by the

predecessor's obligations. The Ottoman legacy is a Pandora's box that may unveil all

kinds of surprises. [...] As for an eventual delictual responsibility, not only the

continuing State, but also the successor States may be held responsible for the acts of

the predecessor State on the basis of customary law. The analysis of State practice

230 Affaire de la dette publique ottomane, 18 April 1925. 231 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 44. 232 DUMBERRY, P., “Turkey’s International Responsibility for Internationally Wrongful Acts Committed by the Ottoman Empire”, Revue Générale de Droit, Vol.42 (2012), p. 567. 233 DUMBERRY, P., “Turkey’s International Responsibility for Internationally Wrongful Acts Committed by the Ottoman Empire”, Revue Générale de Droit, Vol.42 (2012), p. 569. 234 DUMBERRY, P., “Turkey’s International Responsibility for Internationally Wrongful Acts Committed by the Ottoman Empire”, Revue Générale de Droit, Vol.42 (2012), p. 569. 235 OKTEM, E., "Turkey: Successor or Continuing State of the Ottoman Empire?," Leiden Journal of International Law, 24 (2011), p 581.

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indicates that the continuing State remains responsible for the commission of its own

internationally wrongful acts before the date of succession.236 [Own interpretation]

Moreover, article 36 of the Vienna Convention on Succession of States in Respect of State

property, Archives, and Debts of April 8, 1983 determines that in cases of succession of states

do not “as such affect the rights and obligations of creditors.”237 To conclude, Armenian claims

for internationally wrongful acts did not vanish following the end of the Ottoman Regime.

In the Lighthouse Arbitration case, France argued that Greece should be held responsible for

acts committed by the autonomous state of Crete. The events occurred before Greece

established sovereign control over Crete. The Permanent Court of Arbitration ruled in the

Lighthouse Arbitration Case that Greece is to be held accountable for compensation due to

Crete’s acts, because Greece is the successor state.238 In the same line, the Federal Republic

of Germany took full responsibility for the Holocaust perpetrated by the Third Reich

compatible with international law.

Based on my analysis, I have come to the conclusion that the 1915 massacres and deportations

were in violation of the Treaty of Berlin of 1878. If the retroactivity of the Genocide

Convention is accepted, alternatively could be argued that the 1915 events breached the

Genocide Convention as well. The acts against the Ottoman Armenians were committed by

organs of the Ottoman state and actors under Ottoman government control. This implies state

responsibility on behalf of the Ottoman State. Once state responsibility has been decided, the

state in question is required to provide reparation. With the Treaty of Lausanne of 1923, the

Ottoman Empire discontinued. However, based on the principle of state succession, the

Republic of Turkey is today considered as the successor state of the former Ottoman Empire.

This means that the Republic of Turkey as successor state enjoys the rights but also carries the

obligations, including one of reparation, of the former Ottoman Empire.

4.3 Forms of Reparation- Under ILC’s Articles on State Responsibility

As mentioned multiple times before, the violation of a treaty obligation gives rise to state

responsibility. This is a customary rule of international law, confirmed in the Chorzow Factory

case before the Permanent Court of International Justice.

The Court observes that it is a principle of international law, and even a general

conception of law, that any breach of an engagement involves an obligation to

236 OKTEM, E., "Turkey: Successor or Continuing State of the Ottoman Empire?" Leiden Journal of International Law, 24 (2011), p 581. 237 U.N. Conference on Succession of States in Respect of State property, Archives, and Debts, Vienna Austria, of April 8, 1983 (A/Conf. 117/14). 238 Lighthouses Arbitration between France and Greece, July 24, 1956, Permanent Court of Arbitration International Law Reports, Vol. 23, p. 659.

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reparation… the Court has already said that reparation is the indispensable

complement of a failure to apply a convention, and that there is no necessity

for this to be stated in the convention itself.239

Even when the Treaty itself does not provide a reparation clause, the responsible state

carries the obligation to make full reparation, in the form of restitution, compensation

and satisfaction. The different aspects of reparation can be provided in combination

or just single. If the damage cannot be repaired by restitution or compensation, then

reparation will be provided through satisfaction. Satisfaction rather refers to acts of

acknowledgement, apology or regret.240

4.3.1 RESTITUTION

Restitution aims to recreate the situation which existed prior to the wrongful act. In the

Factory at Chorzow case, the principle of restitutio in integrum was explained by the

Permanent Court of International Justice according to which:

reparation must, so far as possible, wipe out all the consequences of the illegal

act and re-establish the situation which would, in all probability, have existed if

that act had not been committed.241

This remedy is adopted in article 35 of the ILC’s Articles on State Responsibility for

Internationally Wrongful Acts.242 Reparation through restitution –restitutio in integrum- is

excluded in casu for many reasons, most importantly the loss of life is not reversible. For the

claims relating to property rights for unlawfully expropriated movable and immovable

property during the 1915 events, aspects as passage of time and proof of right of ownership

will definitely form obstacles. Another aspect to be taken into consideration is that the

confiscated properties have been repopulated by the local population for a century now,

therefore compensation would be more suitable. Article 35 of the ILC’s Articles on State

Responsibility for Internationally Wrongful Acts stipulates:

A State responsible for an internationally wrongful act is under an obligation to

make restitution, that is, to re-establish the situation which existed before the

wrongful act was committed, provided and to the extent that restitution:

(a) is not materially impossible;

239 Chorzow Factory case, Permanent Court of International Justice, Series A, No. 17, 29 (13 September 1928), available at http://www.icj-cij.org/pcij/serie_A/A_17/54_Usine_de_Chorzow_Fond_Arret.pdf. 240 M.COHEN, The Comprehensive Guide to International Law, Brugge, die Keure, p. 143. 241 Chorzow Factory case, Permanent Court of International Justice, Series A, No. 17, 29 (13 September 1928), available at http://www.icj-cij.org/pcij/serie_A/A_17/54_Usine_de_Chorzow_Fond_Arret.pdf. 242 M.COHEN, The Comprehensive Guide to International Law, Brugge, die Keure, 2008, p. 145.

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(b) does not involve a burden out of all proportion to the benefit deriving from

restitution instead of compensation. 243

Claims regarding ‘Wilsonian Armenia’ are not possible since the Soviet-Armenian government

of 1920 renounced its territorial rights over Wilsonian Armenia, which was established

through the Arbitral Award of U.S. President Wilson, with the adoption of the Kars Treaty of

1921. In addition, the fact that the Armenian Republic lacked to protest against Turkey’s

control over Wilsonian Armenia, the Armenian Republic implicitly gave its consent.244 The

International Court of Justice, in the Gulf of Maine Case referred to the principle of

‘acquiescence’ as the “equivalent to tacit recognition manifested by unilateral conduct which

the other party may interpret as consent”.245

4.3.2 COMPENSATION

Compensation under article 36 of the ILC’s Articles on State Responsibility for Internationally

Wrongful Acts, as subsidiary secondary rule, reflects an economically determined concept and

covers any economically assessable damage. Besides the loss of human lives, the Armenian

population suffered significant economic losses during and after the Armenian Genocide.

In the judgement delivered in Bosnia and Herzegovina v. Serbia, the International Court of

Justice ruled that Serbia breached its obligation to prevent genocide under article 1 of the

1948 Genocide Convention.246 However, the International Court of Justice refused to grant

compensation to Bosnia Herzegovina for the loss of human lives.247 The International Court of

Justice found that Serbia’s acknowledgement of its responsibility for not preventing the

genocide in Screbrenica ought to be a sufficient form of reparation.248

Along with the atrocities, Armenian property was being expropriated at a maximum level. U.S.

Ambassador Henry Morgenthau expressed on this note that ‘the real purpose of the

deportation was robbery and destruction; it really represented a new method of massacre’.249

Article 36 of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts holds

that

The State responsible for an internationally wrongful act is under an obligation

to compensate for the damage caused thereby, insofar as such damage is not

243 Article 35 of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts. 244 M. BOSSUYT, J. WOUTERS, Grondlijnen van het Internationaal Recht, Antwerpen-Oxford, Intersentia, 2005, p. 200. 245 International Court of Justice, Case concerning delimitation of the maritime boundary in the Gulf of Maine area, 12 oktober, 1984, available at https://books.google.be/books?id=41nPfNBWRRYC&pg=PA198&lpg=PA198&dq=verkrijgende+verjaring+internationaal+recht&source=bl&ots=5bnmeYWpLd&sig=B37rBkypK6qhcdHT9gzddXBjHI8&hl=nl&sa=X&ved=0ahUKEwi-14yoxtXQAhWCchoKHTgzAe8Q6AEIVDAI#v=onepage&q=verkrijgende%20verjaring%20internationaal%20recht&f=false. 246 TOMUSCHAT, C., “Reparation in cases of Genocide”, Journal of International Criminal Justice, Vol.5 (2007), p. 906. 247 TOMUSCHAT, C., “Reparation in cases of Genocide”, Journal of International Criminal Justice, Vol.5 (2007), p. 907. 248 TOMUSCHAT, C., “Reparation in cases of Genocide”, Journal of International Criminal Justice, Vol.5 (2007), p. 907. 249 H. MORGENTHAU, Ambassador Morgenthau’s Story, Detroit Michigan, Wayne State University Press, 2003, p. 212.

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made good by restitution. The compensation shall cover any financially

assessable damage including loss of profits insofar as it is established.250

In the words of scholar Ungur Ümit Üngör: “the expropriation of Ottoman Armenians was a

functionally necessary phase linking persecution to destruction. Dispossessed and uprooted,

the Ottoman Armenians’ chances of survival and maintenance gradually shrunk to a

minimum”.251 After the first series of deportation in 1915 and before any legislation on the

matter was adopted, the confiscation process was set in motion. Thirty-three abandoned

property commissions (succeeded by the liquidation commissions) first formatted inventories,

then liquidated and afterwards appropriated and reallocated Armenian property.252 The

Armenian properties were not all transferred to the Muslim Ottomans, some properties

remained State property and were used as police stations, army stations, prisons, hospitals

and schools.253

In a memorandum of May 26, 1915 the Interior Minister requested from the Grand Vezir the

authorization for the enactment of a special law on the deportation of Armenians.254 The

Temporary Law of Deportation was announced on 27 May 1915.255 The law authorized the

Commanders of Ottoman Armies to order the deportation of suspects of espionage and

treason for military necessity.256 This resulted in the deportation of the majority of Ottoman

Armenians. The Temporary Law of Deportation granted jurisdiction to the Liquidation

Commissions to manage the abandoned properties.257 The objective of the newly issued law

was the protection of abandoned property. The majority of the assets were handed to

migrants from the Caucasus and Balkan.258 A supplementary law (of Expropriation and

Confiscation) was proclaimed on June 10, 1915 serving as a guide on how to register and

safeguard the properties of the deported and how to organize public sales of the properties.

The revenues were supposed to be handed back to the owners upon their return.259 Another

Temporary law (of Expropriation and Confiscation) was enacted on September 26, 1915,

settling the goods and properties of the deported.260 This law dealt with issues regarding

debts, credits, and assets of the deportees. 261 Gwinner, the Director of the Deutsche Bank of

250 Article 36 of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts. 251 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 107. 252 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 108. 253 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 108. 254 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 266. 255 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 266. 256 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 266. 257 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 108. 258 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 108. 259 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 267. 260 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 267. 261 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 267.

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the German Foreign Office, summarized the Temporary Law of Expropriation and Confiscation

in two articles:

1. All goods of the Armenians are confiscated

2. The government will cash in the credits of the deportees and will repay (or will not repay) their debts.262

The Temporary Law Commissions were in charge of the liquidation of abandoned property

and the settlements of the debts and credits of persons who ‘were sent elsewhere’.263 Years

later, in November 1918, the Temporary Law of Deportation was found unconstitutional and

was revoked.264 The Ottoman Government, under Izzet Pasha, adopted in 1918 and 1920

legislation rejecting the laws on abandoned property, expropriation and confiscation as an

attempt to return or compensate for the property.265 These post-war efforts were hindered

by Kemal Ataturk and his regime. In 1922, the Kemalist government declared that the

liquidation of property happened lawful. A new law was adopted on 20 April 1922 providing

that “unclaimed movable properties of a population who had escaped from places freed from

enemy invasion were to be sold at auction and that the immovable properties and agricultural

products were owned by the government”.266 In 1923 another law on abandoned properties

was adopted, upon which residents of the Republic of Turkey were given four months and

others six months to demand the return of immovable property.267 The Treaty of Sèvres dealt

explicitly with the obstacles regarding property and provided grounds for compensation and

restitution. The Treaty of Lausanne, following the Treaty of Sèvres, opted to remain silent on

the matter of property.

Post 1925, the Kemalist Government included the liquidated properties as a part of the

national budget and granted the migrants, who settled on the abandoned properties, the

official titles of ownership for these properties. The law on abandoned properties remained

in effect until 1986.268 Following an order from the General Directorate of land registry and

cadaster on 29 June 2001, all abandoned properties was to be transferred to the Turkish state.

This complicated set of legal framework, which eventually resulted in the transfer of Armenian

property to the State, has hindered rightful owners or their descendants to reclaim property

under Turkish law.269

262 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 269. 263 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 108. 264 DADRIAN, V.N., “Genocide as a Problem of National and International Law: The World War I Armenian Case and its Legal Ramifications”, Yale Journal of International Law, Vol. 14, No. 2 (1989), p. 269. 265 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 109. 266 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 109. 267 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 108. 268 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 109. 269 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 109.

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4.3.3 SATISFACTION

As I have explained repeatedly, an internationally wrongful act entails state responsibility and

the obligation to make reparation. Full reparation is the principle. However, full reparation is

in my opinion only an illusion. In the case under study, there has been no reparation

whatsoever. Compensation can only be granted, if it is succeeded by recognition of the facts.

Therefore, I am of opinion that today for this historical case and the specific circumstances,

satisfaction is the most suited form of reparation. Satisfaction, as a form of reparation, deals

with the domain of acceptability and includes among others measures as verification of the

facts. Satisfaction under article 37 of the ILC’s Articles on State Responsibility for

Internationally Wrongful Acts is granted when:

1. The State responsible for an internationally wrongful act is under an

obligation to give satisfaction for the injury caused by that act insofar as it

cannot be made good by restitution or compensation.

2. Satisfaction may consist in an acknowledgement of the breach, an expression

of regret, a formal apology or another appropriate modality.

3. Satisfaction shall not be out of proportion to the injury and may not take a

form humiliating to the responsible State.270

An important, if not essential, step in the reparative procedure is to bring understanding on

the Armenian Genocide. From 1960s, the international community began drawing attention

to the cause. The Armenian Genocide was for the first time mentioned in a legal document in

1973, namely in the intermediary report of the UN Sub-Commission on Prevention of

Discrimination and Protection of Minorities.271 While the draft included a reference to the

Armenian Genocide, the reference was deleted in the final version in order to prevent

complications given its politically loaded nature on the one side and Turkey’s pressure on the

other side. This approach became highly criticized and various states did not agree with the

deletion of the reference to the Armenian Genocide. Special Rapporteur Ruhashyankiko

justified the omission of the Armenian Genocide by stating that the Armenian Genocide had

not been officially recognized. Years later, in 1985 the U.N. Sub-Commission referred to the

acts committed against the Armenians as a genocide.272 In 1984 the President of France,

François Mitterand, publicly acknowledged the Armenian Genocide. France went a step

further and issued in 1999 a law on the recognition of the Armenian Genocide. In past

discussions regarding Turkey’s accession to the European Union, the European Parliament has

put pressure on Turkey to acknowledge its past. The Resolution on Turkey’s progress towards

accession emphasized:

270 Article 37 of the ILC’s Articles on State Responsibility for Internationally Wrongful Acts. 271 UN Doc. E/CN.4/Sub. 2/416 (3 reports submitted by Special Rapporteur Ruhashyankiko). 272 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 103.

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Although recognition of the Armenian Genocide as such is formally not one of

the Copenhagen criteria, it is indispensable for a country on the road to

membership’ for Turkey to ‘recognise its past [...] [and] facilitate the work of

researchers’ with respect to both the Turkish Armenians and ‘other minorities

(that is, the Greeks of Pontos and the Assyrians)”.273

Turkey’s refusal to do so was seen as an “insurmountable obstacle to consideration of the

possibility of Turkey’s accession to the European Community”.274

The 1915 massacres and deportations of the Ottoman Armenians constituted a genocide. This

is not only recognized by Armenia, France and Belgium. On international level, the Armenian

Genocide is considered to be a fact. Legislative statements from parliaments worldwide,

official documents issued by the European Parliament and official reports by the United

Nations led to the acceptance of the Armenian Genocide. The Permanent Peoples Tribunal,

founded in Bologna in 1979 concluded that the Armenian Genocide constitutes “an

international crime for which the Turkish state must assume responsibility”. Further, the

Permanent Peoples Tribunal held that the United Nations and its members “have the right to

demand this recognition and assist the Armenian people to that end”.275 In 1997, the

International Association of Genocide scholars adopted a resolution with unanimous vote in

which the 1915 massacres and deportations of the Ottoman Armenians were recognized as

genocide.

That this assembly of the Association of Genocide Scholars in its conference

held in Montreal, June 11–13, 1997, reaffirms that the mass murder of over a

million Armenians in Turkey in 1915 is a case of genocide which conforms to

the statutes of the United Nations Convention on the Prevention and

Punishment of Genocide. It further condemns the denial of the Armenian

Genocide by the Turkish government and its official and unofficial agents and

supporters.276 [Own interpretation]

Alongside the Republic of Turkey, the United States has not yet officially recognized the

Armenian Genocide despite its many expressions pointed in that direction.277 The position of

the U.S. plays an important role in the denial of the genocide. In 2000, the U.S. House of

Representatives intended to vote for a resolution recognizing the Armenian massacre as a

273 European Parliament, Resolution on Turkey’s Progress Towards Accession, A6-0269/2006, 27 September 2006, par. 56. 274 Resolution on a Political Solution to the Armenian Question, Eur. Parl. Resolution Doc. A2-33/87, No. 10 (Armenian Question), 1987. 275 Permanent Peoples’ Tribunal, Verdict of the Tribunal, April 16 1984, available at http://www.armenian-genocide.org/Affirmation.66/current_category.5/affirmation_detail.html. 276 The Armenian Genocide Resolution Unanimously Passed the Association of Genocide Scholars of North America, available at https://web.archive.org/web/20110721083219/http://www.genocidescholars.org/images/IAGS_Resolution_1997_on_the_Armenian_Genocide.pdf. 277 A. DEMIRDJIAN, Armenian Genocide Legacy, Basingstoke, Palgrave Macmillan UK, 2016, p. 103.

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genocide. It was cancelled after President Clinton warned about the risks such an act would

entail for the United States national security. In addition, a U.S. resolution recognizing the

Armenian Genocide would form a barrier in the relations between the US and Turkey. Barack

Obama, as a US Senator, expressed his support in having the Armenian massacre recognized

as genocide. Once Senator Obama became President Obama, he failed to give any presidential

declaration on the Armenian issue.278 Having a powerful state such as the United States

supporting the existence of the Armenian Genocide would have a major impact. With the

support of the United States, it could become more likely that the Republic of Turkey would

proceed to acknowledge its painful past. The fact that 45 states out of 50 states of the United

States have recognized the 1915 events as a genocide remains significant.279

Given Turkey’s geopolitical importance, there has not been enough external pressure to hold

the Republic of Turkey as successor state accountable for the well-documented Armenian

Genocide. In my opinion, international law can only be effective if it’s applied in a consistent

manner. The treatment of the Armenian Genocide at international level completely conflicts

with the consequences given to the Holocaust for instance. The Allied applied international

law in an effective way in order to hold the Nazis responsible for the Holocaust. Within the

Turkish borders, the Armenian Genocide is not considered to be a historical fact, not even

discussed. According to Taner Akçam the denial is the consequence of: “The devastation that

would ensue if we had to now stigmatize those whom we regarded as ‘great saviours’ and

‘people who created a nation from nothing’ as ‘murderers and thieves’ is palpable. It seems

so much simpler to completely deny the genocide than to seize the initiative and face the

obliteration of the ingrained notions about the Republic and our own national identity.”280

Speaking publicly about the Armenian Genocide violates the law under article 301 of the

Turkish Penal Code. This policy cannot be considered compatible with international human

rights and international criminal law. Treaties, such as the Genocide Convention have been

established with view of the higher goals of identifying, preventing and confronting gross

human rights violations.

Article 37 (2) of ILC’s articles on State Responsibility is not exhaustive and could include

symbolic monetary damages. The Arbitral Tribunal held in the Rainbow Warrior case that

satisfaction can include symbolic compensation.281 The Arbitral Tribunal held

278 A. JONES, Genocide: A Comprehensive Introduction, London, Routledge, 2011, p. 169-170. 279 http://www.armenian-genocide.org/current_category.11/affirmation_list.html. 280 Taner Akcam quoted in D. MACDONALD, Identity Politics in the Age of Genocide: The Holocaust and Historical Representation, Routledge, 2007, p. 115. 281 Rainbow Warrior, New Zeeland v. France, France New Zealand Arbitration Tribunal, 30 April 1990, available at http://legal.un.org/riaa/cases/vol_XX/215-284.pdf.

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An order for the payment of monetary compensation can be made in respect

of the breach of international obligations involving, as here, serious moral and

legal damage, even though there is no material damage.282

Demanding symbolic monetary damages in light of satisfaction, as a form of reparation, would

be advisable given the morally condemnable nature of the mass crimes.

4.3.4 CONCLUSION

By concluding on the state responsibility of the Republic of Turkey, as the successor state of

the Ottoman Empire, the state is obliged to make reparation. If restitution and compensation

are not an option, the responsible state needs to grant reparation by acknowledging the

breach, an expression of regret or a former apology. Given the passage of time since the

wrongful acts were committed, this seems to be the most adequate and appropriate

settlement. In the past century, there have been multiple efforts to address the question of

reparation for the Armenian Genocide. Some efforts have been more successful than others,

encouraging Armenians to continue their search for justice.

The denialist policy of the Turkish government towards the Armenian question leaves a

significant effect on the issue of reparations. The Turkish government has invested a lot of

time and money in creating falsified historical studies. Moreover, the Turkish government

pressures other states, governments, media outlets and academic institutions worldwide to

reject the existence of the Armenian Genocide as an actual historical event. Armenian

organizations and individuals react upon this strategy by spending a significant number of

money, time and effort to counter the denial. Turkey’s denial in itself causes new traumas by

publicly humiliating the descendants of the victims of the 1915 massacres. The denial makes

the impact of the crimes even stronger, especially when it is supported by major governments

and educational institutions.283

The Armenian community was given hope when Turkey proclaimed a decree in 2011. The

decree provided legal grounds for non-Muslim community organizations, in particular

churches, to demand the return of property confiscated after 1936.284 If the decree would

provide the same rights for property confiscated after 1915 then it would have been more

effective, adequate and realistic for claims coming from the Armenian Community. The fact

that the Republic of Turkey took a step in this direction, could mean that in the future it would

go even further and recognize the Armenian Genocide and eventually grant compensation.

282 Rainbow Warrior, New Zeeland v. France, France New Zealand Arbitration Tribunal, 30 April 1990, par. 118, available at http://legal.un.org/riaa/cases/vol_XX/215-284.pdf. 283 THERIAULT, H.C., “Reparations for the Armenian Genocide”, 2015, p. 22-24. 284 Conference on “Armenian Church Claims” by international lawyer Mr. Akhavan, December 7 2016, Brussels.

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4.4 Individual Applications under the European Convention on Human Rights

Reparation could also be pursued on an individual basis. Individual claims can be submitted

before the European Court of Human Rights, based on the European Convention of Human

Rights.

The ‘European Convention on Human Rights’ is an international treaty ensuring the protection

of human rights and fundamental freedoms.285 The Convention was drafted in 1950 by the

Council of Europe and entered into force on 3 September 1953.286 All member states of the

Council of Europe are party to the ‘European Convention on Human Rights’. The European

Court of Human Rights was established by the Convention as a legal avenue to address for any

individual violated in his or her rights under the Convention.287 Once the European Court of

Human Rights concludes on the violation, the judgment is binding upon the state in question

under article 46 (1) EHRM.288 The execution of the judgement is monitored by the Committee

of Ministers of the Council of Europe. This is an additional way to ensure that the state in

question pays compensation for the damage it has caused.289

The ECtHR gives an autonomous meaning to a term, which may differ from meanings applied

by national authorities of the member states. This principle applies for instance to the term

‘possessions’ under article 1 Protocol No. 1.290, injured party under article 41 ECHR and victim

under article 34 ECHR. The ECtHR relies on the common legal traditions of the member states

when interpreting the autonomous meaning.291 The interpretation of the ECHR by the ECtHR

is not bound in time but changes in light of contemporary conditions in order to adopt to social

and economic evolutions. Evolutive interpretation is required to ensure the continuing

protection of individual rights and freedoms. Without this principle, protection of human

rights would have been ineffective.292 The ECHR is non-exhaustive and state parties are

allowed to grant additional protection under national law. Under article 35 of the ‘European

Convention on Human Rights’ applicants should first exhaust all domestic remedies before

taking the case to the European Court of Human Rights.293 The ECtHR can order the state in

question to pay compensation for the damage it has caused under article 41 ECHR.294 The

ECHR has to be interpreted and applied in an effective manner, also referred to as the ‘effet

285 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 16. 286 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 17. 287 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 17. 288 Article 46 (1) of the European Convention on Human Rights. 289 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 17. 290 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 188. 291 E. BREMS, Human Rights: Universality and Diversity, The Netherlands, Martinus Nijhoff Publishers, 2001, p. 394-396. 292 E. BREMS, Human Rights: Universality and Diversity, The Netherlands, Martinus Nijhoff Publishers, 2001, p. 396. 293 Article 35 of the European Convention on Human Rights. 294 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 182; Article 41 of the European Convention on Human Rights.

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utile’.295 Exceptions to the provisions safeguarded under the ECHR are read in a restrictive

manner.296

Individual applications before the ECtHR are initiated in a written form.297 Before proceeding

to the application on the merits, the admissibility requirements in article 34 (grounds for

admissibility relating to the Court’s jurisdiction) and 35 (procedural grounds for admissibility)

of the ECHR have to be met. When the ECtHR decides on the inadmissibility of the complaint,

it is definitive without an appeal possibility.298

Article 35 of the ECHR stipulates that

The Court may only deal with the matter after all domestic remedies have been

exhausted, according to the generally recognised rules of international law, and

within a period of six months from the date on which the final decision was

taken.299 [Own interpretation]

The exhaustion rule allows national authorities to prevent or compensate for the alleged

violations of the Conventions.300 This principle is consistent with article 13 of the ECHR, which

prescribes that

Everyone whose rights and freedoms as set forth in this Convention are violated

shall have an effective remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an official capacity.301

Only effective, adequate and accessible domestic remedies have to be exhausted.302 The

ECtHR has the competence to review a complaint filed within six months from the date on

which the final decision was taken on domestic level.303 This rule is inserted to meet the

guarantees of legal certainty.304

The jurisdiction of the ECtHR ratione personae questions the applicant’s status as a victim and

the state who is alleged to have violated the rights and the freedoms as protected under the

ECHR. Pursuant article 34 of the ECHR a natural person, nongovernmental organization such

295 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 183. 296 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 185. 297 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 324. 298 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 492. 299 Article 35 of the European Convention on Human Rights. 300 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 578. 301 Article 13 of the European Convention on Human Rights. 302 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 583. 303 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 605. 304 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 606.

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as religious institutions or a group of individuals can undertake action, against a state for

violating the provisions under the ECHR, by initiating a complaint before the ECtHR.305

Each individual enjoys the rights and freedoms protected under the ECHR without

discrimination based on race, religion, sex, language, political opinion, national or social origin,

association with a national minority, property, birth or other status. Discrimination on these

grounds is prohibited under article 14 of the ECHR.306

The ECtHR gives an autonomous meaning to the term ‘nongovernmental organization’, which

includes associations, churches, monasteries, political parties and private companies

regardless of whether it has legal personality. Entities without legal personality can act on

behalf of its members, on the condition that the members are identified.307 For instance, a

church, on behalf of its members, can exercise its rights under article 9 of the ECHR before the

ECtHR.308 Nongovernmental organizations do not enjoy all rights and freedoms under the

ECHR, for instance they cannot rely on article 2 of the ECHR which protects the right of every

person to his or her life.309

In regard to an application to the ECtHR from a group of individuals, it is required that each

member in the group is a victim of the claimed violation. In addition, the identity of every

member of the group has to be identified.310

The applicant must show that he or she is a victim of the alleged violation.311 The term victim

under article 34 of the ECHR represents a person who is directly or indirectly affected by the

alleged violation.312 Indirect victims must have a valid and personal interest in seeing the

alleged violation brought to an end. In some cases the victim status can be granted to close

relatives.313 In this regard the ECtHR conclude in Varnava and Others v. Turkey that

close relatives of the missing persons may introduce applications raising

complaints concerning their disappearance, to the extent that such complaints

fall within the Court’s competence.314

305 Article 34 of the European Convention on Human Rights. 306 Article 14 of the European Convention on Human Rights; J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 495. 307 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 501. 308 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 502. 309 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 505. 310 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 506. 311 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 507. 312 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 512. 313 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 514. 314 Varnava and Others v. Turkey, European Court of Human Rights, Case Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECLI:CE:ECHR:2009:0918JUD001606490 (18 September 2009), par. 112.

66

Individual applicants can file a complaint against a state party’s acts or omission incompatible

with the ECHR. Each state party has the duty to guarantee the rights and freedoms under the

ECHR to every person within its jurisdiction.315

Applicants can only file a complaint with regard to the rights and freedoms protected under

the ECHR. The jurisdiction ratione materiae of the ECtHR extends to the rights and freedoms

as protected under the ECHR and its Protocols.316

According to article 32 of the ECHR the jurisdiction of the ECtHR shall extend to matters which

took place after the date of entry into force of the Convention in respect of the state party in

question. The jurisdiction ratione temporis of the ECtHR only stretches to the period after the

ratification of the Convention or the Protocols by the respondent state.317 Facts prior to the

ratification of the ECHR or its Protocols thereto by the respondent state are incompatible to

the ECtHR’s jurisdiction ratione temportis and inadmissible under article 35 § 3 of the ECHR.318

This aspect would form an obstacle for individual claims regarding the 1915 Armenian

Genocide, since it predated the ratification of the Convention and its Protocols. For instance,

complaints regarding the confiscations of property prior or during World War II by Germany

do not fall within the scope of article 1 Protocol 1, because the facts predate the respondent

state’s succession to the First Protocol. Exception to this principle applies when facts prior to

the ratification are considered to have created a situation that exists beyond that date.319 The

jurisdiction of the ECtHR thus includes a continuing situation, by which the continuing

violation was created prior to the entry into force of the Convention or its Protocols but

exceeds the date of ratification.320 When the continuous character of the situation is decided

upon, the six-month time-limit does not apply any longer. This has been applied by the ECtHR

in multiple cases regarding the right of property. For instance in the Loizidou v.Turkey case,

where the applicant was denied of access to her property in Northern Cyprus. In Blečić v.

Croatia, the ECtHR explained that deprivation of an individual’s property as such does not

constitute a continuing situation, but an instantaneous act which ends. However, denying

access to the property, the control or use of the property without compensation for

interference with one’s right to property produces a continuing situation.321

The disappearance is regarded as a continuing situation by the ECtHR, because of the

uncertainty, unaccountability, absence of information or deliberate suppression of the facts.

In addition, the failure to provide information on the missing person constitutes a continuing

situation. Even if it is believed that the missing person is dead, the omission to investigate the

315 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 529. 316 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 543. 317 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 549. 318 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 549. 319 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 550. 320 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 552. 321 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 553.

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missing person’s fate is still considered as a continuing violation.322 In Varnava and Others v.

Turkey323, the ECtHR ruled

There is, however, an important distinction to be drawn in the Court’s case-law

between the obligation to investigate a suspicious death and the obligation to

investigate a suspicious disappearance. A disappearance is a distinct

phenomenon, characterised by an ongoing situation of uncertainty and

unaccountability in which there is a lack of information or even a deliberate

concealment and obfuscation of what has occurred (see also the definitions of

disappearance set out above in part II B. “International law documents on

enforced disappearances”). This situation is very often drawn out over time,

prolonging the torment of the victim’s relatives. It cannot therefore be said that

a disappearance is, simply, an “instantaneous” act or event; the additional

distinctive element of subsequent failure to account for the whereabouts and

fate of the missing person gives rise to a continuing situation. Thus, the

procedural obligation will, potentially, persist as long as the fate of the person

is unaccounted for; the ongoing failure to provide the requisite investigation

will be regarded as a continuing violation (see Cyprus v. Turkey, cited above, §

136). This is so, even where death may, eventually, be presumed.324

[Own interpretation]

The ECtHR makes a distinction between the investigation –as an obligation- of a

disappearance and the investigation –as an obligation- of a death. In Silih v. Slovenia, the

ECtHR ruled that conform article 2 of the ECHR an effective investigation is required even if

the case concerns the death of a person occurred before the ratification of the Convention by

the respondent state. In Silih v. Slovenia, the ECtHR held

Against this background, the Court concludes that the procedural obligation to

carry out an effective investigation under Article 2 has evolved into a separate

and autonomous duty. Although it is triggered by the acts concerning the

substantive aspects of Article 2 it can give rise to a finding of a separate and

independent “interference” within the meaning of the Blečić judgment (cited

above, § 88). In this sense it can be considered to be a detachable obligation

322 Varnava and Others v. Turkey, European Court of Human Rights, Case Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECLI:CE:ECHR:2009:0918JUD001606490 (18 September 2009), paras. 148-149. 323 Turkey recognised the competence of the Commission to receive individual petitions as from 28 January 1987. 324 Varnava and Others v. Turkey, European Court of Human Rights, Case Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, ECLI:CE:ECHR:2009:0918JUD001606490 (18 September 2009), paras. 148-149.

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arising out of Article 2 capable of binding the State even when the death took

place before the critical date.325 [Own interpretation]

However, the ECtHR stated in Silih v. Slovenia that

having regard to the principle of legal certainty, the Court's temporal

jurisdiction as regards compliance with the procedural obligation of Article 2 in

respect of deaths that occur before the critical date is not open-ended.326

[Own interpretation]

Though, the ECtHR specifies the limits of its temporal jurisdiction in Silih v. Slovenia,

First, it is clear that, where the death occurred before the critical date, only

procedural acts and/or omissions occurring after that date can fall within the

Court's temporal jurisdiction.327

Second, there must exist a genuine connection between the death and the

entry into force of the Convention in respect of the respondent State for the

procedural obligations imposed by Article 2 to come into effect.

Thus a significant proportion of the procedural steps required by this provision

– which include not only an effective investigation into the death of the person

concerned but also the institution of appropriate proceedings for the purpose

of determining the cause of the death and holding those responsible to account

(Vo, cited above, § 89) – will have been or ought to have been carried out after

the critical date.

However, the Court would not exclude that in certain circumstances the

connection could also be based on the need to ensure that the guarantees and

the underlying values of the Convention are protected in a real and effective

manner.328 [Own interpretation]

The ECtHR explains that in order to speak of ‘a genuine connection’, it is required that the

time span between the death and the entry into force of the Convention does not exceed ten

years.329 Further, it is required that a relevant part of the investigation procedure was or was

intended to be done after the ratification of the Convention by the state party in question.

325 Silih v. Slovenia, European Court of Human Rights, Case No. 71463/01, ECLI:CE:ECHR:2009:0409JUD007146301 (9 April 2009), para. 159. 326 Silih v. Slovenia, European Court of Human Rights, Case No. 71463/01, ECLI:CE:ECHR:2009:0409JUD007146301 (9 April 2009), para. 161. 327 Silih v. Slovenia, European Court of Human Rights, Case No. 71463/01, ECLI:CE:ECHR:2009:0409JUD007146301 (9 April 2009), para. 162. 328 Silih v. Slovenia, European Court of Human Rights, Case No. 71463/01, ECLI:CE:ECHR:2009:0409JUD007146301 (9 April 2009), para. 163. 329 Practical Guide on Admissibility Criteria, Council of Europe, par. 212, available at http://www.echr.coe.int/Documents/Admissibility_guide_ENG.pdf.

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However, the ECtHR held in Silih v. Slovenia that a connection is not qualified as a genuine

connection but may be sufficient in certain extraordinary circumstances, when the connection

can also be based on the need to ensure that the guarantees and the underlying values of the

Convention are protected in real and effective manner. This allows a further broadening in

time of the ECtHR’s temporal jurisdiction as long as it concerns cases of serious crimes under

international law which massively disavowal the foundations of the Convention. However, this

exception is only applicable to events that have taken place after the adoption of the

‘European Convention on Human Rights’, on 4 November 1950. This was confirmed in

Janowiec and Others v. Russia, where the subject-matter dealt with investigations in relation

to the massacres of Katyn in 1940. The ECtHR concluded it had no temporal jurisdiction to rule

upon the complaint under article 2 of the ECHR and found the applications only partially

admissible. The ECtHR held in Janowiec and Others v. Russia:

The Court further accepts that there may be extraordinary situations which do

not satisfy the “genuine connection” standard as outlined above, but where the

need to ensure the real and effective protection of the guarantees and the

underlying values of the Convention would constitute a sufficient basis for

recognising the existence of a connection. The last sentence of paragraph 163

of the Šilih judgment does not exclude such an eventuality, which would

operate as an exception to the general rule of the “genuine connection” test.

In all the cases outlined above the Court accepted the existence of a “genuine

connection” as the lapse of time between the death and the critical date was

reasonably short and a considerable part of the proceedings had taken place

after the critical date. Against this background, the present case is the first one

which may arguably fall into this other, exceptional, category. Accordingly, the

Court must clarify the criteria for the application of the “Convention values”

test.330

Like the Chamber, the Grand Chamber considers the reference to the

underlying values of the Convention to mean that the required connection may

be found to exist if the triggering event was of a larger dimension than an

ordinary criminal offence and amounted to the negation of the very

foundations of the Convention. This would be the case with serious crimes

under international law, such as war crimes, genocide or crimes against

humanity, in accordance with the definitions given to them in the relevant

international instruments.331

The heinous nature and gravity of such crimes prompted the Contracting

Parties to the Convention on the Non-Applicability of Statutory Limitations to

War Crimes and Crimes Against Humanity to agree that they must be

330 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 149. 331 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 150.

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imprescriptible and not subject to any statutory limitation in the domestic legal

order. The Court nonetheless considers that the “Convention values” clause

cannot be applied to events which occurred prior to the adoption of the

Convention, on 4 November 1950, for it was only then that the Convention

began its existence as an international human rights treaty. Hence, a

Contracting Party cannot be held responsible under the Convention for not

investigating even the most serious crimes under international law if they

predate the Convention. Although the Court is sensitive to the argument that

even today some countries have successfully tried those responsible for war

crimes committed during the Second World War, it emphasizes the

fundamental difference between having the possibility of prosecuting an

individual for a serious crime under international law where circumstances

allow it, and being obliged to do so by the Convention.332

Complaints, regarding alleged violation of the ECHR, are required to have occurred

within the jurisdiction of the respondent state or within the territory fully controlled

by the respondent state in order to be compatible with the jurisdiction ratione loci of

the ECtHR.333

The abovementioned principles will be applied to the present case. In particular, the violation

of article 2 -following which the respondent state failed to conduct an adequate and effective

investigation into one’s death- and article 3 -which holds that no one will be subjected to

torture or inhuman or degrading treatment- of the European Convention on Human Rights.

Article 2 of the ECHR imposes a procedural obligation upon states.

4.4.1 VIOLATION OF ARTICLE 2 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS? Applicants, such as close relatives of the victims who were killed during the 1915 massacres

and deportations in the Ottoman Empire, can file a complaint based on article 2 of the ECHR

against the Republic of Turkey for failing to conduct an adequate and effective investigation

into the deaths of their relatives.

Article 2 of the ECHR provides that

1. Everyone’s right to life shall be protected by law. No one shall be deprived of

his life intentionally save in the execution of a sentence of a court following his

conviction of a crime for which this penalty is provided by law.

332 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 151. 333 J. VANDE LANOTTE, Y. HAECK, Handboek EVRM Deel 1. Algemene Beginselen, Antwerpen-Oxford, Intersentia, 2005, p. 554.

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2. Deprivation of life shall not be regarded as inflicted in contravention of this

Article when it results from the use of force which is no more than absolutely

necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully

detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.334

Although the Armenian massacre committed in 1915-1917 is an act falling outside the

temporal reach of the ECHR, resulting that the ECtHR in principle has no competence ratione

temporis to deal with the substantive aspect of article 2 of the ECHR. The applicants could

argue that the ECtHR has jurisdiction to examine whether the Republic of Turkey complied its

procedural obligation under article 2 of the ECHR as a separate binding duty, even when the

deaths occurred before the ratification date of the Convention by the State in particular.

In order to trigger the temporal jurisdiction of the ECtHR, it is required that the acts or

omissions took place or ought to have taken place after the entry into force of the Convention

in respect of the respondent state. The fact that omissions as well fall under the definition can

be of relevance for the case under study. Omission refers to the situation

where no investigation or only insignificant procedural steps have been carried

out but where it is alleged that an effective investigation ought to have taken

place. Such an obligation on the part of the authorities to take investigative

measures may be triggered when a plausible, credible allegation, piece of

evidence or item of information comes to light which is relevant to the

identification and eventual prosecution or punishment of those responsible.335

It is established case-law, that if the triggering event lies outside the jurisdiction ratione

temporis of the ECtHR, uncovering new material or evidence after the critical date –this is the

date of ratification- can impose a procedural obligation to investigate in an adequate or

effective manner by the respondent state. However, the procedural obligation under article 2

of the ECHR only comes into effect if there is a genuine connection between the triggering

event –the deaths- and the entry into force of the Convention. The first requirement in order

to establish a genuine connection, is that the lapse of time between the triggering event and

the entry into effect of the convention must not exceed ten years. This requirement is clearly

not met in the case under study, the Armenian massacres in the Ottoman Empire preceded

the adoption of the Convention on 4 November 1950 by ten years. The second requirement

in order to establish a genuine connection is that the most important procedural steps should

334 Article 2 of the European Convention on the Human Rights. 335 Gutiérrez Dorado and Dorado Ortiz v. Spain, European Court of Human Rights, Case No. 30141/09, (December), paras. 39-41.

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take place following the entry into force of the Convention. Again, this requirement is not met

in the case under study, since the investigation into the deaths was not proceeded after the

ratification of the Convention by the state in question. Although, applicants can argue that

new materials on the 1915 massacre rose after the critical date, still the requirement to speak

of a genuine connection cannot be met.

However, in extraordinary situations where the ‘genuine connection’ standard is not met, the

applicants can rely on the pressing “need to ensure that the guarantees and the underlying

values of the Convention were protected in a real and effective manner” as a sufficient basis

to trigger the jurisdiction ratione temporis of the ECtHR.336 Established case-law of the ECtHR

has ruled that the required connection can be found in situations which completely conflict

with the foundations of the Convention, when the crime is no longer an ordinary criminal

offence but part of serious crimes under international law, as war crimes and genocide.337 The

latter expression has also been repeatedly invoked by the ECtHR in cases of hate speech, such

as expressions denying the holocaust. If speech denying the existence of crimes under

international law is considered to be conflicting with the underlying values of the Convention,

then the same approach should be applied to the act itself, in particular given the magnitude

and the gravity of the acts in question.

In the Janowiec and Others v. Russia case, Amnesty International intervened as third-party

and held that

The obligation to investigate war crimes and crimes against humanity extended

to such crimes committed prior to the drafting and entry into force of the

Convention. The murder and ill-treatment of prisoners of war and civilians had

been prohibited under customary international law in 1939, and States had an

obligation to investigate and prosecute war crimes well before 1939, with no

statutory limitation.338

With reference to the findings of the Inter-American Court of Human Rights in Gomes Lund et

al.judgment, Amnesty International further pointed out that

The passage of time did not alter the State’s obligation to conduct an

investigation or to provide suitable, effective remedies to victims. The right of

victims to effective access to justice included the right to be heard and the right

336 Silih v. Slovenia, European Court of Human Rights, Case No. 71463/01, ECLI:CE:ECHR:2009:0409JUD007146301 (9 April 2009), para. 163 in fine. 337 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 150. 338 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 125.

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to full reparation, which comprised the following elements: restitution,

compensation, rehabilitation, satisfaction and guarantees of non-repetition.

The failure to conduct an effective investigation adversely impacted the right

of family members to be treated humanely.339

The Armenian massacres were carried out by a totalitarian regime, whose values seriously

conflicted with the ECHR. Although, post-World War I trials were held in Istanbul to prosecute

those responsible for the 1915 Armenian massacres and deportations, the investigations were

not conducted effectively nor adequately. An estimated 1.5 million Ottoman Armenians were

vanished, without accountability from the Turkish government. The applicants can argue that

there are still a significant number of individuals with a legitimate interest in finding out the

circumstances of the massacre and given the well-documented nature of the 1915-events,

there are up to date opportunities to carry on the investigation, especially taking the

discoveries from the Turkish archives on the matter by historian Taner Akçam into

consideration. The Armenian massacres were investigated right after the events in 1918, but

in an ineffective manner. On the one hand, the perpetrators were prosecuted for their acts

and some even sentenced to death, but on the other the same convicted perpetrators were

set free during the regime of Kemal Ataturk. Though the wrongful acts conducted by the

Ottoman regime in 1915 clearly contravene with the underlying values of the Convention,

case-law of the ECtHR ruled in the Janowiec and Others v. Russia judgment that the

‘Convention values’ test cannot be invoked to events prior to the adoption of the Convention

on 4 November, 1950.

To conclude, although there is a continuing procedural obligation under article 2 of the ECHR

to investigate a death prior to the critical date of ratification by the respondent state, the

ECtHR concluded that this exception in time is only applicable to events that took place after

the adoption of the ‘European Convention on Human Rights’, on 4 November 1950. This way,

close relatives (children and grandchildren for instance) of the deceased ones during the 1915

massacres and deportations will not be able to pursue a complaint before the ECtHR –due to

inadmissibility on the grounds of incompatible with the ECtHR’s jurisdiction ratione temporis-

for the fact that the Turkish authorities did not conduct an adequate and effective

investigation into the deaths of their relatives, as required under article 2 of the ECHR.

4.4.2 VIOLATION OF ARTICLE 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS? Close relatives of the victims in the case under study could file a second complaint arguing

that the longtime denial of historical facts and the withholding of relevant information

regarding the relatives of the applicants amounts to inhuman or degrading treatment in

violation of article 3 of the Convention.

339 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 125 in fine.

74

Article 3 of the ECHR provides as follows

No one shall be subjected to torture or inhuman or degrading treatment or

punishment. 340

The applicants can argue that they have suffered enormously because of the denial policy of

the Turkish government and in alternative order because of the ineffective investigation

process into the deaths of their relatives in 1915. The applicants can claim that the persistent

denial of the Armenian Genocide testifies of the respondent state’s disregard for the

applicants’ concerns. In addition, the position of the respondent state-the Republic of Turkey

in the current case- can be considered as deliberately obfuscating the circumstances of the

Armenian massacres in 1915. For instance, speaking publicly about the Armenian Genocide

violates the law under article 301 of the Turkish Penal Code.

Unlike article 2 of the ECHR which imposes a procedural obligation, is article 3 of the ECHR

more of a general humanitarian character.341 Based on case-law of the ECtHR, applicants -as

relatives of victims- can invoke the violation of article 3 of the ECHR when they are able to

proof their suffering through special factors, which is different from the emotional stress

caused because of the serious violations caused to their relatives, who were the victims of the

serious human rights violation.342 Proximity of the family tie, witnessing the event and efforts

at obtaining information on the fate of the relative are considered to be special factors.343 For

instance, the ECtHR has previously held that a family member of a disappeared person can

invoke the violation of article 3 of the ECHR, even when the body of the missing person was

found after a long period of uncertainty.344

In the same line, relatives of the victims of the 1915 events could invoke this argument.

However, this is not a strong argument today given the passage of time. The analysis behind

the violation of article 3 in respect of relatives, is the suffering of the family members due to

the situation of uncertainty. Today, relatives of the victims of the 1915 events in the Ottoman

Empire can no longer rely on this argument. The Republic of Turkey ratified the ECHR in 1954,

if such complaints against the Republic of Turkey would have been filed years back then maybe

another verdict would have been reached. In the case of Janowiec and others v. Russia, the

ECtHR reiterates the fine lines of article 3 of the ECHR

340 Article 3 of the European Convention on Human Rights. 341 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 172. 342 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 177. 343 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 177 in fine. 344 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 178.

75

The essence of the issue under Article 3 in this type of case lies not so much in

a serious violation of the missing person’s human rights but rather in the

authorities’ dismissive reactions and attitudes in respect of that situation when

it was brought to their attention. The finding of a violation on this ground is not

limited to cases where the respondent State is to be held responsible for the

disappearance.345

The ECtHR has previously found a violation of article 3 of the ECHR in cases where the

applicants witnessed the suffering of their family members.346

However, the ECtHR ruled in the Janowiec and Others v. Russia judgement that

The Court’s case-law, as outlined above, has accepted that the suffering of

family members of a “disappeared person” who have to go through a long

period of alternating hope and despair may justify finding a separate violation

of Article 3 on account of the particularly callous attitude of the domestic

authorities to their quest for information. As regards the instant case, the

Court’s jurisdiction extends only to the period starting on 5 May 1998, the date

of entry into force of the Convention in respect of Russia. The Court has found

above that as from that date, no lingering uncertainty as to the fate of the

Polish prisoners of war could be said to have remained. Even though not all of

the bodies have been recovered, their death was publicly acknowledged by the

Soviet and Russian authorities and has become an established historical fact.

The magnitude of the crime committed in 1940 by the Soviet authorities is a

powerful emotional factor, yet, from a purely legal point of view, the Court

cannot accept it as a compelling reason for departing from its case-law on the

status of the family members of “disappeared persons” as victims of a violation

of Article 3 and conferring that status on the applicants, for whom the death of

their relatives was a certainty.347 [Own interpretation]

In the case under study, the ECtHR will not conclude that the applicant’s suffering reached a

“dimension and character distinct from the emotional distress which may be regarded as

inevitably caused to the relatives of victims of human rights violations”.348 Therefore, the

ECtHR will not find a violation of article 3 of the ECHR in respect of family members of the

victims of the 1915 massacres and deportations.

345 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 178. 346 Salakhov and Islyamova v. Ukraine, European Court of Human Rights, Case No. 161, ECLI:CE:ECHR:2013:0314JUD002800508 (14 March 2013), para. 204. 347 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 178. 348 Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and 29520/09, ECLI:CE:ECHR:2013:1021JUD005550807 (21 October 2013), para. 188.

76

4.4.3 CONCLUSION The ECtHR has no competence to examine the complaint under article 2 of the ECHR in the

case under study, because the triggering events predate the adoption of the ‘European

Convention on the Human Rights’. In regard to the second complaint, although the Republic

of Turkey perseveres in denying the Armenian Genocide, it is difficult and maybe even

unrealistic to argue a violation of article 3 of the ECHR for the mere fact that a century has

passed since the events and the factor of uncertainty in respect of the relatives is excluded.

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5 Conclusion

In this paper, I examined whether today reparation for a historical fact, of more than a

hundred years ago, can be obtained. The passage of time of course decreases the chances of

making a case, but an even bigger obstacle in the case under study was the fact that when the

Armenian Genocide occurred there was only little to no legislation on grave human rights

violations. This makes claims towards the responsible state extremely challenging and perhaps

even dependent on the goodwill of the respondent state and of the International community

in general. The legal obligation to refrain from genocide remains as well an ‘erga omnes’

obligation, indicating an obligation towards the international community as a whole.

The atrocities committed against the Ottoman Armenians in 1915 are recognized as a

genocide today. The acts committed by the Ottoman government were in violation of its

obligations under the Treaty of Berlin, in particular article 61 and 62 of the Treaty of Berlin of

1878. If the retroactivity of the Genocide Convention is accepted, alternatively could be

argued that the 1915 events breached the Genocide Convention as well. Given the erga omnes

nature of the -jus cogens- crime genocide and the objectives of the Convention on the

Prevention and Punishment of the Crime of Genocide, I personally belief that the ongoing

denial of the Armenian Genocide by the Republic of Turkey produces a continuing violation

and therefore activates the Genocide Convention with regard to the Armenian Genocide.

Every internationally wrongful act, which is in the present case a violation of a treaty

obligation, gives rise to state responsibility. The acts against the Ottoman Armenian were

committed by organs of the Ottoman state and actors under Ottoman government control.

This implies state responsibility on behalf of the Ottoman State. Once state responsibility has

been decided, the state in question is required to provide reparation. Given that the Republic

of Turkey is considered as the legal successor of the Ottoman Empire, then the Republic of

Turkey shall be held accountable for the obligations of the former Ottoman Empire. The

successor state not only enjoys the rights but also carries the obligations, including one of

reparation, of the former state.

State responsibility goes together with the obligation to make reparation. The necessity of

dealing with reparation for victims of gross violations of human rights law and serious

violations of international humanitarian law was emphasized once more in the U.N. General

Assembly resolution 60/147 on the ‘Basic Principles and Guidelines on the Right to a Remedy

and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of

International Humanitarian Law’. The responsible state needs to grant full reparation in the

form of restitution, compensation and satisfaction following ILC’s Articles on Responsibility of

States for Internationally Wrongful Acts. However, if restitution and compensation are not an

option, reparation in the form of satisfaction ought to be enough. Acknowledging the breach,

expressing regret, and recognizing the events as a genocide are measures falling under the

domain of ‘satisfaction’. In my opinion, the latter form of reparation seems to be the most

78

adequate, effective and realistic settlement given the passage of time since the wrongful acts

were committed. Reparation for the 1915 massacres and deportations in the Ottoman Empire

cannot remain neglected, especially given the magnitude, gravity and nature of the crimes

regardless of the date of occurrence. Murder has and always will be an act punishable by law.

By ending the denial and giving a former apology, the Republic of Turkey would allow

Armenians, scattered around the world, to close this part of their history for once and for all.

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6 Samenvatting Dit werkstuk werd geschreven in het kader van de Masterproef in de rechten, geëvalueerd door Prof. Dr. Tom Ruys aan de Faculteit Rechtsgeleerdheid van de Universiteit Gent. In dit werkstuk tracht ik te onderzoeken of rechtsherstel kan verkregen worden naar aanleiding van een historisch feit, namelijk de Armeense Genocide van 1915, 100 jaar na de feiten. Dit onderzoek leek me interessant aangezien dit onderwerp onvoldoende vanuit een juridisch perspectief onderzocht is geweest.

De misdaden begaan ten aanzien van de Armeniërs in het Ottomaans Rijk in 1915, worden

vandaag bestempeld als een genocide. Dit is een feit, erkend door de internationale

gemeenschap. De juridische gevolgen die het ‘plegen van een genocide’ teweegbrengen, zijn

er echter nooit gekomen.

Het belang in het erkennen van de Armeense Genocide en een remedie aanbieden uit zich

niet enkel ten aanzien van de Armeense gemeenschap, maar kent eveneens een

maatschappelijke relevantie. Grove mensenrechtenschendingen dienen met het oog op het

publiek belang onderzocht te worden. Hoewel de Armeense Genocide vanuit historisch

oogpunt een veelbesproken zaak is, wordt het aspect van rechtsherstel naar aanleiding van

de Armeense Genocide zelden besproken in de wetenschappelijke literatuur. Het leek me dan

ook interessant om mij te verdiepen in dit onderwerp. Dit onderzoek kent tevens een juridisch

belang, namelijk het Genocideverdrag is opgericht ter voorkoming van genocide door het

streng bestraffen van reeds voorgevallen genocides.

Gezien de feitelijke omstandigheden van de genocide in Srebrenica, Rwanda en de Holocaust

treffende gelijkenissen vertonen met de Armeense Genocide, was het relevant om

verschillende aspecten van de genocide in Srebrenica, Rwanda en de Holocaust te

onderzoeken. Voornamelijk het nagaan of men al dan niet kon spreken van een ‘genocidal

intent’ in de zaak van de Armeense Genocide was uiterst interessant. Op basis van mijn

analyse, was er sprake van een ‘special intent to destroy in whole or in part a national,

ethnical, racial or religious group as such’ in de Armeense zaak, net als bij de Holocaust, de

genocide in Screbrenica en de genocide in Rwanda. Echter, enkel de juridische gevolgen van

de Armeense Genocide zijn uitgebleven en tevens uitvoerig gedebatteerd geweest. Dit roept

de vraag op of de Armeense Genocide eerder een politieke kwestie is?

Voor de juridische analyse, heb ik mij op het bestaand internationaal recht gebaseerd. In een

eerste stap werden verschillende verdragen besproken, met een nadruk op het Verdrag van

Berlijn van 1878 en het Verdrag van Sèvres van 1920. Tevens vormt de bespreking van het

Genocideverdrag van 1948 een substantieel deel van dit werkstuk. Vervolgens werd

onderzocht of het Ottomaans Rijk deze verdragen al dan niet heeft geschonden in 1915, door

het begaan van de misdaden ten aanzien van het Armeens volk in het Ottomaans Rijk. Hierbij

kwam ik tot de conclusie dat ten eerste het Verdrag van Sèvres geen juridische gevolgen

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teweeg kan brengen, aangezien dit Verdrag niet geratificeerd is geweest door het Ottomaans

Rijk. Ten tweede stel ik vast dat de daden van de Ottomaans regering in 1915 wel een

schending uitmaken van het Verdrag van Berlijn van 1878. De vraag naar een

verdragsschending betrof een moeilijkere studie met betrekking tot de Genocideverdrag,

aangezien deze pas na de feiten -in 1915- aangenomen is geweest. Op basis van mijn

uitgevoerde analyse stelde ik echter vast, dat een retroactieve toepassing van de

Genocideverdrag met betrekking tot de Armeense Genocide niet is uitgesloten.

Een schending van een verdragsverplichting geeft aanleiding tot staatsaansprakelijkheid, wat

vervolgens een plicht tot rechtsherstel oproept. Op basis van mijn studie kon ik vaststellen dat

het Ottomaans rijk haar verdragsverplichtingen in het Verdrag van Berlijn van 1878 heeft

geschonden in 1915 door het uitvoeren van deportaties en massamoorden ten aanzien van

de Armeense populatie. In het bijzonder artikel 61 en 62 van het Verdrag van Berlijn. Echter

het bestaan van het Ottomaans Rijk is opgehouden in 1923, met de aanname van het Verdrag

van Lausanne. In beginsel worden handelingen van staatsorganen aan de staat toegerekend,

ook wanneer het orgaan handelt buiten de hem toegekende bevoegdheden, de zogenaamde

ultra vires handelingen. Zo kunnen de handelingen begaan door de organen van het

Ottomaans regering, in 1915 ten aanzien van de Armeense populatie, toegerekend worden

aan de Ottomaanse staat. Ook de onrechtmatige daden begaan door de ‘Special Organization

Unit’ toegerekend worden aan de Ottomaanse staat, aangezien de regering effectieve

controle uitoefende over de privépersonen.

De volgende centrale vraag was of de huidige Republiek Turkije kan geconfronteerd worden

met feiten gepleegd door haar voormalige staat, namelijk het Ottomaans Rijk. Eveneens rijst

de vraag of men de Republiek Turkije kan beschouwen als de rechtsopvolger van het

Ottomaanse rijk? Ik kwam tot de vaststelling dat de huidige staat Turkije effectief beschouwd

wordt als de rechtsopvolger van het Ottomaanse Rijk. De opvolgerstaat geniet niet enkel de

rechten van de voorgangerstaat maar staat ook in voor de verplichtingen van de voormalige

staat, onder andere het bieden van een remedie naar aanleiding van onrechtmatige daden. In

casu heeft de huidige staat Turkije de verplichting om herstel aan te bieden voor de

onrechtmatige daden gepleegd ten aanzien van de Armeense volkeren in het Ottomaanse Rijk

ten tijde van de Armeense Genocide.

Schending van een rechtsplicht, welke toerekenbaar is aan de staat, creëert de plicht tot

rechtsherstel in de vorm van restitutie, schadevergoeding en/of genoegdoening. Een

belangrijke factor in casu, blijft het feit dat de Armeense Genocide een eeuw geleden heeft

plaatsgevonden. Met het verstrijken van de tijd, wordt het moeilijker om de zaak sterk te

maken en zijn de kansen op herstel sterk gedaald. Ten eerste, ten tijde van de Armeense

Genocide was er nu eenmaal minder wetgeving omtrent grove mensenrechtenschendingen.

Het Verdrag van Berlijn van 1878 was een stap in de goede richting en schrijft regels van gelijke

behandeling voor ten aanzien van alle onderdanen, inclusief de Christelijke minderheden, van

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het Ottomaans Rijk. Bovendien incorporeerde het Verdrag van Berlijn protectionistische

maatregelen ten behoeve van de Armeense minderheden. Echter, in mijn opinie, moet men

in casu met het oog op een toepasselijke remedie rekenen op goede wil van de aansprakelijke

staat en de internationale gemeenschap in het algemeen.

Het belang om rechtsherstel aan te bieden ten gevolge van onrechtmatige daden,

toerekenbaar aan een staat, wordt benadrukt in Resolutie 56/83 omtrent ‘Responsibility of

States for Internationally Wrongful Acts’ en resolutie 60/147 omtrent ‘Basic Principles and

Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of Human

Rights Law and Serious Violations of International Humanitarian Law’. In principe dient de

verantwoordelijke staat in eerste instantie een remedie aan te bieden in de vorm van

restitutio in integrum. Vervolgens in de vorm van financiële compensatie. Indien de twee

voorgaande vormen van rechtsherstel niet mogelijk blijken, voldoet herstel in de vorm van

genoegdoening. Herstel in de vorm van restitutie is uitgesloten in casu. Een financiële

compensatie zou in principe wel mogelijk kunnen zijn, maar dit blijkt moeilijk te zijn omwille

van het tijdverloop. Ten derde, met alle juridische en feitelijke omstandigheden in acht

genomen, lijkt herstel in de vorm van genoegdoening in mijn opinie de meest geschikte,

doeltreffende en effectieve medium van herstel voor de schendingen begaan ten aanzien van

het Armeense volk in het Ottomaanse rijk in 1915.

De Republiek Turkije zou door het publiekelijk erkennen van haar onrechtmatige daden in

1915 als een genocide en het daarmee ophouden van haar ontkenningsbeleid, de Armeense

gemeenschap in staat stellen dit eeuwigdurend hoofdstuk van haar geschiedenis af te sluiten.

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83

7 References

Legislation

The Treaty of San Stefano March 3, 1878, available http://www.western-armenia.eu/archives-nationales/Traite/Preliminaires-au-Traite-de-San-Stefano.pdf.

The Treaty of Berlin July 13, 1878, available at https://archive.org/stream/cu31924027836869/cu31924027836869_djvu.txt.

The Versailles Treaty June 28, 1919, available at http://avalon.law.yale.edu/imt/partvii.asp.

The Treaty of Sèvres August 10, 1920, available at http://www.hri.org/docs/sevres/.

The Treaty of Lausanne July 24, 1923, available athttp://sam.baskent.edu.tr/belge/Lausanne_ENG.pdf.

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, 82 U.N.T.S. 280, Aug. 8, 1945. (Charter of the International Military Tribunal)

Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, December 20, 1945, 3 Official Gazette Control Council for Germany 50-55 (1946), available at http://www1.umn.edu/humanrts/instree/ccno10.htm.

Convention on the Prevention and Punishment of the Crime of Genocide, G.A. Res. 260 (III), U.N. GAOR, 3rd Sess., 179th plen. mtg., U.N. Doc. A/810, Dec. 9, 1948. (hereinafter Genocide Convention).

Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, 1950, available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_1_1950.pdf.

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84

Resolution Resolution 96 (I), December 11, 1946, adopted by the General Assembly at its fifty-fifth meeting, available at http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/47/IMG/NR003347.pdf?OpenElement.

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85

Jurisprudence

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Prosecutor v. Jean-Paul Akayesu (TC), ICTR, Case No. ICTR-96-4-T (2 September 1998).

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Prosecutor v. Radislav Krstić (TC), ICTY, Case No. IT-98-33-T (2 August 2001).

Prosecutor v. Stakić, ICTY, Case No. IT-97-24-T, (31 July 2003).

Prosecutor v. Radislav Krstić, ICTY, Case No. IT-98-33-A (19 April 2004).

Prosecutor v. Rod Blagojević, ICTY, Case No. IT-02-60-T (17 January 2005).

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Varnava and Others v. Turkey, European Court of Human Rights, Case Nos. 16064/90,

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Janowiec and Others v. Russia, European Court of Human Rights, Case Nos. 55508/07 and

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Silih v. Slovenia, European Court of Human Rights, Case No. 71463/01,

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