What About Law? The Armenian Genocide and the Importance of International Justice

Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings. This was established by the United Nations General Assembly established on 11 December 1946 in Resolution 96 (I).

Genocide is not only a crime against individuals but also a crime against humanity and diversity. The intentional destruction of a group of people sets genocide apart from all other crimes, earning it the “crime of crimes” title. Its gravity is reflected in the fact that it is a jus cogens norm and an erga omnes obligation.

Jus cogens refers to a fundamental and non-derogable norm of international law that is accepted and recognized by the international community of states as a norm from which no derogation is permitted. Jus cogens norms are peremptory in nature, meaning they supersede any inconsistent treaty or customary law provisions. The notion of erga omnes refers to obligations owed by states to the international community as a whole.

It is imperative that the international community continues to recognize and condemn this heinous crime and takes necessary steps to ensure that those responsible are held accountable, individuals as well as states.

Genocide has obvious similarities to Crimes Against Humanity. These two legal concepts are often confused. The crucial difference between the two is the specific intent to destroy a particular group. The Nuremberg defendants, for instance, were charged with crimes against humanity and war crimes, but the underlying events would now be classified as genocide.

The Genocide Convention makes it clear that genocide can occur during both war and peace, and there is no requirement for a connection between genocide and armed conflict. Nonetheless, the law against genocide protects a narrower set of interests than the law against crimes against humanity. In other words, the difference lies in the necessary element of intent to destroy a group, which is only in the mind of the perpetrator. Crimes against humanity, on the other hand, require a widespread or systematic attack on a civilian population. This element is not relevant to the concept of Genocide.

The prevention and prohibition of these crimes have become an erga omnes obligation, which means that all states have a responsibility to enforce them. As a result, these crimes have the highest level of recognition in customary international law.

Let us, therefore, jump the hurdles backward, and understand the concept of Crimes Against Humanity. As Jean Graven in his seminal “Les crimes contre l’humanité” sadly but rightly points that Crimes against humanity are as old as humanity itself.

The Crime of All Crimes

The Armenian Genocide is the starting point for the legal concept of “crimes against humanity.” The concept is a precursor to the understanding of genocide. It has evolved over time, from Article 6c of the Charter of Nuremberg to Article 7 of the Rome Statute of the International Criminal Court.

After the Second World War, those who wrote the Nuremberg Charter had to figure out how to address the Holocaust and the enormous crimes committed by the Nazi regime. The conventional definition of war crimes didn’t cover crimes committed by a government against its own people. Consequently, the drafters incorporated the term “crimes against humanity.”

The definition of crimes against humanity, which was included in the Nuremberg Charter, was also included in the Tokyo Charter with some modifications. The Control Council Law No. 10 adopted by the Allied Control Council for occupied Germany also had a similar definition but with additional acts such as rape, imprisonment, and torture. Unlike the classic definition of war crimes, crimes against humanity did not require a connection to war crimes or aggression. The UN General Assembly quickly approved the concept of crimes against humanity, but in the years that followed, only a few treaties and instruments recognized enforced disappearance and apartheid as crimes against humanity, and there were only a limited number of national cases.

The establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) by the Security Council was a significant step forward in response to the mass crimes committed in those countries. Another important development was the adoption of the ICC Statute in 1998, which includes a contextual threshold in Article 7, stating that crimes against humanity must be committed as part of a widespread or systematic attack directed against any civilian population.

Looking at the roots of the legal concept, France, Great Britain, and Russia made a joint declaration on 24 May 1915, in response to the massacre of Armenians by Turkey. The joint declaration denounced "crimes against humanity and civilization" and warned of personal accountability. As Bassiouni opines that the declaration of the Allies was significant because it marked the first time that crimes against humanity were given a substantive meaning, which held both individuals and states criminally responsible for such acts in both times of war and peace.

The underlying legal concept was that the massacres violated fundamental norms of international law, and as a result, “all members of the Turkish Government” would be held accountable, along with any agents implicated in the massacres.

The most prominent figures in the newly established Turkish government expressed their strong condemnation of the treatment of Armenians during the war. Interestingly, they went as far as to use the phrase "crimes against humanity" to describe these actions. For instance, the Sultan, who held the highest authority, utilized the exact Turkish term "Kanuni insaniyete karai ika edilen ceraim" when denouncing these heinous crimes.

The Yozgat Court-Martial verdict accused the convicted perpetrators of the Armenian massacres of violating the principle of "human sentiment" (hissiyatt insaniye). Damad Ferit, who later became Grand Vizier, condemned the massacres on the same day as a type of atrocity that would make "humanity and the civilized world shudder, and shudder forever."

After reviewing authenticated documents, the Turkish Military Tribunal declared that the Armenian massacres were premeditated acts of deportation and massacre. One of the architects of the genocide, Dr. Nazim, was quoted in the Key Indictment as having stated that the measures taken against the Armenians were the result of "careful and prolonged deliberations."

The widespread atrocities committed by the Ottoman government during the Armenian Genocide could not be concealed, as numerous foreign officials, military personnel, and missionaries stationed throughout the region provided consistent and well-documented reports. However, enforcing appropriate sanctions proved challenging due to the inexperience of the Allies in prosecuting criminals in matters of world public order. Although the Allies were well-intentioned, the absence of state practice made the enforcement of justice impractical.

In 1919, following the defeat of the Ottoman Empire, the Allied Forces established the Commission on Responsibilities and Sanctions and its Sub-commission, also known as the Commission of Fifteen, during the Paris Peace Conference. The Preamble of the Commission’s report states that until a more complete code of the laws of war has been issued, the inhabitants and belligerents remain under the protection and rule of the principles of the law of nations, as they result from established usages among civilized peoples, laws of humanity, and the dictates of public conscience.

The Martens Clause, which was invoked during the Paris Peace Conference of 1919, proposed the adoption of a new category of war crimes. This clause asserts that, until a more complete code of the laws of war is issued, the principles of international law that result from established usages among civilized peoples, as well as the laws of humanity and the dictates of public conscience, should guide the treatment of inhabitants and belligerents in cases not covered by existing regulations. The Commission on Responsibilities and Sanctions and its sub-commission, the Commission of Fifteen, examined offenses related to “barbarous and illegitimate methods of warfare”.

The Commission’s report in March of 1919 specified various violations that were documented during the Armenian Genocide. These violations included systematic terror, murders, massacres, dishonoring of women, confiscation of private property, pillage, seizing of goods belonging to communities, educational establishments, and charities, arbitrary destruction of public and private goods, deportation and forced labor, execution of civilians under false allegations of war crimes, and violations against civilians and military personnel. All these grave breaches are outlined in the Treaty’s provisions.

In both the Armenian and Jewish genocides, there was a significant transfer of wealth from the victim population to the perpetrators. In the case of the Armenian genocide, the Ottoman government seized much of the Armenian population’s property and land and distributed it to Turkish officials and settlers.

The early attempts to establish an international tribunal for the Armenian Genocide were hindered by the lack of sustained political will on the international stage. It was becoming increasingly evident that preventing crimes of this scale required a universal commitment to erga omnes obligations related to the laws of “humanity.”

Treaty of Sèvres

The Treaty of Sèvres, which aimed to partition the Ottoman Empire and hold war criminals responsible for crimes against humanity, was signed by the Allies and the Ottoman Empire one year after the Commission's efforts to define the atrocities committed in Anatolia.

Article 144 of the Treaty of Sèvres called for restitution to be made to the victims of the atrocities committed during the war, including the Armenian genocide. Meanwhile, Article 230 established a tribunal to try those accused of committing war crimes, including the crimes against humanity committed during the genocide. However, as previously mentioned, the Treaty of Sèvres was never fully implemented due to a variety of factors, including international politics and the emergence of new conflicts.

The Treaty also included a commitment to try Turkish officials for war crimes committed by Ottoman Turkey against Allied nationals, as well as those of a larger scale committed by Turkish authorities against subjects of the Ottoman Empire of different ethnic origins, particularly the Armenians. This was outlined in Article 230 of the Treaty, which specified the sanctions for criminal acts, including the punishment of individuals responsible for the massacres of Armenians.

Even though the Allied Powers had a clear understanding of criminal responsibility, there was no established legal precedent or clear law to serve as a foundation for prosecuting war crimes at that time. The Treaty of Sèvres acknowledged the massacre of the Armenian population in Turkey as a crime against humanity, but the Treaty was never officially ratified.

The emergence of the father of the Turkish Republic Mustafa Kemal Ataturk, and the growing nationalist sentiments were significant factors that thwarted the efforts of the European powers to hold war criminals accountable. The Treaty of Lausanne, signed on 24 July 1923, was a testament to Ataturk’s overall success.

The Treaty represented a significant departure from the earlier Treaty of Sèvres. It did not include the Allies’ demands for an international trial and punishment of the Ottoman government for the Armenian genocide, which had been provided for in Article 230 of the Treaty of Sèvres. It also did not include a commitment to grant reparations to the survivors of the genocide, as stipulated in Article 144 of the same treaty. Additionally, the Treaty of Lausanne was silent on the recognition of a free Armenian State.

Yet, the memory of the Armenian Genocide remained vivid among those who pursued justice during the Nuremberg trials. The British Chief Prosecutor in Nuremberg used the Armenian case as the basis for the law on crimes against humanity, stating: “The same view was taken by the European Powers which in past times intervened to protect the Christian subjects of Turkey against cruel persecution.”

Law v Turkey

Raphael Lemkin’s efforts in coining and defining the term “genocide” were instrumental in the adoption of the Genocide Convention. The Armenian case was a significant influence on his understanding of the concept. The term “genocide” was used to describe the Armenian massacres in accordance with Article II of the Convention, which distinguishes it from other crimes against humanity. Unlike crimes against humanity, which require a “general intent,” genocide is characterized by “a specific intent to destroy in whole or in part a national, ethnic, racial, or religious group.”

The Convention was adopted by the General Assembly of the United Nations on 9 December 1948 and became effective on 12 January 1951. The Convention does not claim to invent a new crime but rather acknowledges that genocide has been a grave crime throughout history. Article I of the Convention states that the contracting parties acknowledge genocide as a crime under international law, whether committed during peacetime or wartime.

Article VIII of the Genocide grants the International Court of Justice (ICJ) the authority to exercise jurisdiction in cases concerning the matters covered by the terms of the Convention, such as the responsibility of a State for the commission of the crime of genocide.

The crime of genocide reflects the establishment of the actus reus (perpetrated acts) and mens rea (special intent) elements of domestic criminal law.

Material Elements

Article II of the Convention reads:

In the present Convention, genocide means 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.

This provision describes the targeted destruction of a specific national, ethnic, racial, or religious group, which is what happened to the Armenians during the First World War by the Turkish people.

Intentional Elements

The success of the prosecution's case in labeling the events as genocide largely depends on the quality of evidence regarding the specific intent or “dolus specialis” of the perpetrators, without which the massacres would not meet the criteria for genocide.

The intentionality behind the massacres is evident, even though the perpetrators did not openly admit to their plans. As one legal scholar notes, governments that are not as foolish as National Socialist Germany will not acknowledge the intention to destroy a group as such but will claim to be acting against traitors. In positive law, circumstantial evidence can be used to establish the required intent to support dolus specialis.

The Bosnian Genocide Case highlighted the importance of considering circumstantial evidence in determining the intent to destroy a human group. By analyzing a certain number of circumstances, it becomes possible to deduce the specific criminal intent. In the Bosnian Genocide Case, one of the factors that were considered in determining intent was the number of victims, which can be a strong indicator of the intent to destroy a significant part of a given group.

Another indicator of the intent to commit genocide is the premeditation and organization of massacres. The Ottoman Empire was a well-established political and military entity, making it unlikely that large-scale massacres across different regions were random and unplanned. The deportation of Armenians, for example, was overseen by a Commission of Deportation and carried out by the Special Organization, a sub-level organ. The hierarchical organization of these operations strongly suggests premeditation and planning.

In terms of identifying the perpetrators of the crime, the Convention's Articles III and IV specifically refer to “the persons” responsible for the crime. In the case of the Armenian Genocide, the orders to carry out the massacres came from the ruling political party with the intention of achieving its goal of homogenizing the Empire. This can be seen as a deliberate and systematic attempt to eliminate a specific national, ethnic, racial, or religious group, as defined in Article II of the Convention.

A coded telegram, for instance, from the Minister of the Interior, Talaat Pasha, to the governor of Aleppo, issued on 15 September 1915 orders to deport all Armenians in the district, stating that “no distinction should be made between the guilty and innocent, women and children.” Another document is a circular telegram from the Minister of War, Enver Pasha, to all military units on November 1, 1914, which calls for the “extermination of the Armenians.”

The decision to deport the Armenians was not merely a relocation, but rather a deliberate and planned extermination. Talat Pasha, one of the main orchestrators of the genocide, referred to the deportation as a “fundamental solution” and later claimed that “the Armenian question has been decisively solved.”

The World Court

The International Court of Justice (ICJ) is the most relevant international court to hold Turkey accountable for the crimes committed against the Armenian population during the First World War. According to Article 38(1)(b) of the ICJ Statute, the court has the authority to rule on “international custom.” Thus, the ICJ has the power to decide on the retroactive application or recognition of the genocide, as well as the attribution of the massacres to Turkey.

When a State is responsible for the conduct that constitutes the offense of genocide, it is not only an individual crime but also engages the responsibility of the State. The ICJ was presented with the case of the Bosnian Genocide, where Bosnia alleged that Serbia breached the Genocide Convention by attempting to destroy protected groups, particularly the Muslim population.

Turkey has faced a significant procedural obstacle in its attempt to exempt itself from the ICJ’s jurisdiction, which is the issue of legal continuity between Turkey and the Ottoman Empire. It is widely accepted that Turkey is the successor state of the Ottoman Empire, and this consensus is challenging to challenge or refute.

On 18 April 1915 when the debt of the Ottoman Empire was being divided, the arbitrator Eugène Borel established in his award that Turkey had assumed the personality of the former Ottoman Empire.

The Turkish Republic, as the successor state to the Ottoman Empire, inherited sovereignty over the former Ottoman lands despite the collapse of the empire and the end of the Sultan’s reign. As a result, the Turkish Republic assumed the legal obligations incurred by the Ottoman Empire. Therefore, the Republic of Turkey cannot be exempted from its predecessor’s legal responsibilities.

The Rome Statute, which aims to prosecute those accused of committing serious crimes, has incorporated Article II of the Genocide Convention in Article 6 of its text. However, in the case of the Armenian Genocide, as all the perpetrators have since passed away, the Rome Statute is not a viable legal avenue and can be seen as a dead end when it comes to using most of its provisions against Turkey.

Under international law, a state can be held responsible for the wrongful act committed by its individuals, if they acted under the direction or control of the State. In the case of the Armenian Genocide, there is clear evidence of the Ottoman government’s instructions and control over the teskilati mahsusa units, making Turkey responsible for the wrongful act of committing genocide. Additionally, the present-day denial of the Turkish government of the genocide has a causal nexus with the injury, further attributing responsibility to the State. As such, Turkey has a prima facie legal obligation to provide reparations to the Armenian people for the harm suffered.

According to international law, if a successor State inherits a situation of continuing wrongful acts on its territory and endorses or continues it, it can be inferred that the State has assumed responsibility for it.

The establishment of a causal link between the wrongful act and the harm caused gives rise to various forms of reparation, including restitution, compensation, and satisfaction. In the case of the Armenian Genocide, the top priority is to receive formal apologies as a form of satisfaction. However, the possibility of further reparations should not be disregarded. Turkey’s moral responsibility for the crime could set a precedent that can help deter similar crimes in the future.

Can’t run away forever

Due to a tragic irony, the Armenian Genocide, which to a large extent triggered the development of modern legal concepts of Crimes Against Humanity and Genocide, has not so far received proper acknowledgment and recognition by the international community. Moreover, culprits, including the Republic of Turkey, the successor of the Ottoman Empire, have not been held accountable for the atrocities committed. Turkey’s ongoing denial of the genocide dishonors the rights and sentiments of the victims. Given the jus cogens nature of the prohibition of genocide, it is fair to say that humanity as a whole is the victim of every Genocide committed.

The Turkish Courts-martial, which were hastily established upon the Allies’ demand in the wake of the Ottoman Empires’ defeat in World War I clearly showed the intent to massacre the Armenian population and seize their lands. The Hague Convention and the Treaty of Sèvres foresaw reparations for such acts under the principle of State responsibility. The denial of the Armenian Genocide has led to impunity for crimes against humanity, and this trend will continue unless the international community takes strong action through legal or political means to hold those responsible accountable.

The International Center for Transitional Justice conducted extensive research and concluded that the events that occurred during the wartime treatment of Armenians when viewed together, satisfy all the criteria for the crime of genocide as defined by the United Nations Convention on Genocide. Therefore, legal scholars, historians, politicians, journalists, and others are justified in describing the Armenian massacres as such.

The Armenian Genocide is a tragedy that cannot be undone, but it is not too late for justice to be served. Turkey’s denial of this heinous crime has only fueled the ongoing suffering of the Armenian people, and the international community must not stand idly by. Through the principles of State continuity, State responsibility, and reparations, Turkey can and should be held accountable for the atrocities committed against the Armenian people. It is up to all of us to demand justice, insist on the truth, and ensure that history is never allowed to repeat itself. Only then can we truly honor the memory of those who suffered and perished in the Armenian Genocide.