The Armenian Question from the Standpoint of International Law

II. Armenian Question in the Legal Context

The Armenian Question from the Standpoint of International Law

Assoc. Prof. Dr. Sadi ÇAYCI*

Introduction

When examining the Armenian question the first step should be determination of the parties. The “counterpart” of the question consists of the following: first and foremost Armenia along with the Armenian Diaspora, and the individuals, establishments and countries that provide these two with direct support (for example countries that have passed resolutions or laws in recognition or acceptance of the “Armenian genocide”), and, in general, the USA and the European countries. Turks and Turkish national interests are the target.

The Armenian question can be examined in a number of contexts: political history, politics, diplomacy, security and defense, public administration, sociology and, especially, law. This is the general framework.

The military dimension of the Armenian genocide allegations, that is, the issues that come up in a security and defense context, entail the following: the insurgency, collaboration with the enemy, and the countering of the insurgency. The legal dimension concerns the civil and criminal responsibilities that might be arising from the administrative measures taken in the course of that process, and any torts or crimes the two sides might have committed against one another.

The Insurgency

The operation the Ottoman State launched to counter the Armenian uprising was planned and executed by taking necessary and proportionate measures in the face of the following developments: In 1915, that is, in the First World War, the Ottoman State was in a state of war with Russia, Britain, France and Italy. It was at such a peculiar time that the Armenians rebelled, demanding independence. They collaborated with the enemy, committing the crime of high treason in wartime. They staged massacres against the Muslim people who, in turn, had to defend themselves. However, while defending themselves, at times some crossed the line of proportionality and became involved in acts of revenge or reprisal.

Since all the Muslim males of the fighting age had been conscripted and were in military service, far away from their homes, fighting at various fronts, the remainder of the Muslim civilians back at home had to do whatever they could on their own to defend themselves against the attackers that were trying to massacre them. Although these civilians sometimes did act with feelings of revenge and also staged reprisals, there was a greater problem: In parts of the Ottoman realm the state authority had already been eroded and a number of armed individuals and gangs had seized that opportunity to stage robberies and killings for private gain. All these tragic incidents hurt not solely the Armenians but all the parties concerned. Contrary to the conviction held by some, these incidents were not triggered by the Muslims. Armed gangs of Armenians –known as Armenian Committees– triggered the incidents by massacring innocent, defenseless Muslim civilians in an ethnic cleansing drive. These Armenian gangs believed that by collaborating with the enemy they would be able to initiate a national liberation war of the Armenians.

Countering the Insurgency

In 1915, the Ottoman State was faced with a highly unfavorable security environment in the country and abroad. Still, in the face of this sedition, it tried to take and implement all the necessary, proportionate measures – political, diplomatic, military, legal, administrative and judicial. One of these administrative measures was the mass relocation of the Armenians to another region within the Ottoman realm. When assessing the shortcomings and some unfortunate consequences of the mass relocation one must bear in mind the fact that at that time the Ottoman State was on the verge of total collapse due to the overt and covert campaigns of its relentless foreign and domestic enemies in a scheme of conspiracy. Despite all these facts the West hurls accusations at the victimized party, that is, Turkey and the Turks.

The Turkish War of Liberation, Moscow and Kars Treaties

In the aftermath of these developments the Turkish War of Liberation was fought against alien occupation to liberate the Anatolian lands, that is, those parts of the Ottoman realm that the national forces in Turkey had pledged to liberate by approving the “National Pact”, a political declaration made by the last Ottoman Parliament. In the eastern front Turkey and Armenia signed a peace treaty (the Gyumri Treaty of Dec. 2, 1920) and thus resolved their border dispute and the issue of Nakhichevan’s special status. The treaty in question also contained provisions regarding issues such as the crimes committed during the First World War, the internally displaced persons, and the demands for reparations. The two sides agreed on a general amnesty and mutually dropped their demands for reparations. However, the Gyumri Treaty met with the same fate as the Sèvres Treaty. It could not be ratified and implemented – because, by then, Armenia had been invaded and annexed by the Soviets. However, a few months later this issue was re-negotiated, this time in the context of the Turkey-Soviet Russia relations, and the Turkish-Soviet Friendship and Brotherhood Treaty was signed in Moscow on March 16, 1921. With that treaty Turkey’s National Pact-based boundaries were confirmed, Nakhichevan’s special status was determined, and the earlier agreements on these issues were declared invalid. The treaty, which also envisaged conclusion of special agreements in the same framework with the Soviet republics of the South Caucasus as well, is still in force.

As a result of the renewed negotiations required by the Moscow Treaty, a Treaty of Friendship was signed between Turkey, Armenia, Azerbaijan and Georgia in Kars on Oct. 13, 1921. The Kars Treaty reiterated that the previous treaties would be invalid – with the exception of the 1921 Moscow Treaty. The Kars Treaty re-confirmed Turkey’s National Pact boundaries. Thus, Turkey’s northeastern border was finalized and Nakhichevan’s special status was regulated. The treaty is still in force.

Article 15 of the Kars Treaty says: “Each of the Contracting Parties agrees to promulgate, immediately after the signature of the present Treaty, a complete amnesty to citizens of the other Party for crimes and offenses committed during the course of the war on the Caucasian front.”

Some tragic incidents took place in the southern regions of Anatolia as well. These were triggered by the massacres armed Armenian groups staged against the Muslim people, this time in collaboration with France. According to Article 5 of the Treaty of Ankara signed between Turkey and France on Oct. 20, 1921, the Contracting Parties were to declare a general amnesty as well — as soon as they would take control of the territories to be evacuated. This treaty too, is still in force.

Lausanne Peace Treaty

Lastly, we have to cite the Lausanne Peace Treaty signed in Lausanne on July 24, 1923. The overall aim of the treaty was to bring to a definite end the state of war that had disrupted peace and harmony in the East –a reference to the Eastern front, from the Western Powers’ perspective– since 1914. The basic principle was respect for the independence and sovereignty of the states. Article 58 of the Lausanne Treaty says that Turkey, on one hand, and the Western Contracting States (with the exception of Greece), on the other hand, “reciprocally renounce all pecuniary claims for the loss and damage suffered respectively by Turkey and the said Powers and by their nationals (including juridical persons) between the 1st August, 1914, and the coming into force of the present Treaty [June 6, 1924], as the result of acts of war or measures of requisition, sequestration, disposal or confiscation.” Article 74 envisaged special provisions regarding insurance contracts and the statutory limitations for claims arising from these acts. Briefly, a life insurance contract made between a given person and a person who later became an “enemy” would not be deemed null and void due to the start of the state of war or due to that person becoming the “enemy”. Specific provisions existed also for the life insurance contracts concluded between Partnerships that were nationals of an Allied State and the Turkish nationals. However, these provisions do not mean that the Republic of Turkey would have to undertake the responsibility arising from the private law relationship between those parties. These provisions merely confirm the validity of the private contracts made by the parties.

The provisions of the Declaration and Protocol for a General Amnesty (Annex VIII) constitute another relevant arrangement in the Lausanne Treaty. Here, the main aim is to make the incidents that had disrupted peace in east Anatolia finally to be forgotten. Those Turkish nationals (and the nationals of the other Contracting Parties) that had been investigated, arrested or convicted due to political or military reasons by the authorities of any of these states (in the territories to be left to the Republic of Turkey) prior to Nov. 20, 1922, would benefit from a general amnesty. All sentences meted out for such crimes would be scrapped and all investigations under way would be discontinued. The people of the Republic of Turkey have acted according to these provisions and, in line with Atatürk’s motto, “Peace at Home, Peace in the World”, opened a new, “white” page in their relations with the rest of the world. In other words, the Turkish people have decided not to dig into the history. They have opted for not fanning the feelings of hate or revenge. Sadly, the international community fails to understand the reasons for this meaningful silence on the part of Turkey about the painful events of the past. Influenced by the Armenian propaganda, the international community obviously has misinterpreted this dignified silence as a sign of admission of guilt on the part of Turkey, ignoring the historical facts, the legal framework and their own political, military and moral responsibility.

Yet, it is a fact that the problems between Turkey and Armenia had already been resolved definitely with specific agreements (Treaties of Moscow and Kars), that is, via “lex specialis”, basically prior to the Lausanne Peace Treaty itself. This is the legal situation. All the allegations and attempts being made outside this legal framework lack legal grounds; and they amount to nothing but attempts to get results with a strategy of putting political pressure on Turkey, again by using the Western influence. In fact, the Armenians had made certain political attempts during the negotiating process for the Lausanne Peace Treaty as well; however, their attempts had been rebuffed. Today too the same legal situation exists without any change.

It is a pity that the Armenian allegations are currently being supported by a great part of the international community. So we need to provide information to the international public about the political, military and legal facts summed up above.

The following assessments should be read and interpreted while keeping in mind the aforementioned political, military and, especially, legal facts.

The Armenian Question as a Political Dispute: The Legal Framework

The “Armenian question” Turkey is faced with today, can be examined from various angles. There is the international law angle (the UN Charter, the boundaries, the territory-compensation demands etc.), the criminal law angle (the genocide allegations etc.) and the international private law (compensation demands). The resolutions passed by a number of foreign parliaments, the legal arrangements, erection of monuments commemorating the “Armenian genocide”, can be the subject matter of another study.

In this framework, Armenia and its supporters’ allegations and their demands on Turkey, should be examined, before everything else, from the standpoint of the UN Charter, the Oct. 24, 1970 UN General Assembly No. 2625 (XXV) “Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations” and the UN Vienna “Convention on the Law of Treaties” dated May 23, 1969. Here are the main arrangements that make up the current legal framework: The norms of customary international law and the peremptory norms of international law (jus cogens), the Statute of the UN International Court of Justice, the “UN Convention for the Prevention and Punishment of the Crime of Genocide” dated Jan. 9, 1948 (effective as of Jan. 12, 1951), the UN “Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity” dated Nov. 26, 1968 (effective as of Nov. 11, 1970), the UN General Assembly’s 1973 Resolution No 3074 (XXVIII) on the “Principles of International Cooperation in the Detention, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity” and the Rome Statute of the International Criminal Court (effective as of July 1, 2002).

To understand the mass relocation practice correctly one has to know the differences between a number of relevant terms such as immigration, deportation, refuge, relocation, exile and internal displacement. The administrative measure applied to the Armenians during the Ottoman era was an exercise of mass relocation –that is, within the domestic territory– and not deportation since the Armenian population was not moved abroad.

Similarly, from the standpoint of the international criminal law, one has to correctly differentiate between terms such as crimes against humanity, genocide, massacre, persecution and mutual atrocities.

Genocide Law

According to Article 2 of the UN Genocide Convention (1948), genocide is –as the highest stage of racial hatred—the act of destroying the members of a national, racial or religious group merely because they are members of that group. This convention is not a criminal law document. It is simply an international agreement that imposes on the Signatory States the obligation to ensure that their laws and regulations include the aforementioned act as a crime and to prevent and investigate such crimes, if any. These are the limits of the Signatory States’ responsibility – under the law of treaties. The convention, which went into effect on Jan. 12, 1951, does not cover the tort law issues.

The UN Convention (dated 1968) involving the statutory limitations, meanwhile, says that there will be no statutory limitations for the investigation and prosecution of the acts of genocide. Like the previous one, this convention also is not retroactive as to the date on which the 1948 Convention took effect.

The Stance Taken by Foreign Parliaments

Several foreign parliaments’ moves involving the Armenian allegations are of two types: political assessments-statements and legal arrangements. Since the political assessments-statements lack legal significance the Turkish response to these should be in the same context, that is, in the form of political moves such as counter-statements to be made by the Turkish Grand National Assembly or some other mechanisms – such as commissions—putting this issue on the agenda.

The way foreign parliaments pass laws to determine and describe historical facts is a different matter. It is a grave mistake to enact such laws because these laws restrict the freedoms of thought, expression and science and impose certain –nonsensical– legal or criminal responsibilities on individuals in this regard. This concept – and the resulting legal arrangements—must be contested, before anyone else, by the very persons with whose freedom of thought and expression these laws interfere, in other words, the injured party. Since their basic human rights are being violated, these persons must seek first the local legal remedies and, if not satisfied, then resort to the international legal channels in a human rights law context. In the course of this process these persons should be given all kinds of support –including diplomatic protection—by Turkey and the relevant nongovernmental organizations including the professional organizations.

Private Law Relationships

Recent press reports cover stories of the people of Armenian origin that have sought and managed to obtain compensation from certain insurance companies abroad on the basis of the life insurance policies bought during the Ottoman era. There have been those that interpret this as a sign indicating that the “Armenian genocide” is being judicially recognized. However, a private law relationship (and the deals to be made and court decisions to be elicited in this context), have nothing to do with such claims and, also, naturally, would be binding only for the parties concerned. Life insurance policy is a private law contract and it concerns only the company that sells the policy and the person who buys it – together with his or her heirs – in the context of terms and conditions binding on the parties. Our judicial custom envisages that private law disputes and even those disputes that stem from an administrative law context, should be brought before national judicial bodies – most of the time knowing very well that this would keep the disputes unresolved for a long time. The western judicial tradition is exactly the opposite of this. And that is the correct approach. As in the western custom, efforts should be made to resolve any existing disputes with out-of-court settlements. So, the out-of-court settlement process should not be criticized. The agreement reached in the cases in question would definitely not be binding on the third parties, that is, on the Republic of Turkey. In fact, it should not be forgotten that, in line with the well-established principles of public international law, the Republic of Turkey enjoys sovereign immunity from the jurisdiction of the foreign countries.

As a strategy Armenia and its supporters are waging a political-psychological struggle against Turkey. They try to apply mounting international pressure on Turkey with the hope that this will make Turkey “give up” and accept their demands in the end. Following such a strategy, if successful, even obtaining compensation from Turkey as an “ex gratia award” could be possible.

The truth is that by now Armenia and its supporters have already spent more money in the campaign they are waging against Turkey than they might possibly get from Turkey in a bona fide manner via legal channels. It is obvious that the real aim is political and not humanitarian or judicial.

The ICTJ Report

Regardless of the name to be given, there is a dispute at hand and efforts are being made to resolve it at various platforms. One of these efforts has led to the unfortunate report issued by the International Center for Transitional Justice (ICTJ) on Feb. 4, 2003. The ICTJ’s opinion had been sought on a specific issue and, in this context, the Center said in its report that the 1948 Genocide Convention cannot be invoked to bring legal charges or to make pecuniary or territorial claims against any individual or state due to the 1915 incidents. Unfortunately, the ICTJ got carried away. Rather than limiting its opinion to the question that had been directed at it, it went on to make comments based on an assumption. It said that “if the Convention had been retroactive” it could be said that some of those who had taken part in the incidents had acted with genocidal intent. That opinion seems to reflect the wishful thinking of the ICTJ. The ICTJ is a private establishment its opinions have no legal significance.

International Court of Justice

The aforementioned issues related to the genocide allegations mentioned above mainly involve the criminal responsibility of individuals. Resolution of the disputes that may arise from the implementation or interpretation of international agreements such as the 1948 or 1968 treaties, is a different subject, and, in this context the International Court of Justice may have jurisdiction. On the other hand, allegations regarding whether a crime of genocide has been committed or not, and whether any possible claims are justified as such, are not issues that may come under the scope of the International Court of Justice’s jurisdiction. The International Court of Justice is a court of law, not a criminal court, and is meant to settle –when it has jurisdiction—legal disputes among States and States only.

Conclusion

In essence, what happened in 1915 was a process of mutual killings and that very process was the result of Armenian atrocities committed by the Armenian armed bandits who operated in collaboration with the enemy in the course of a World War in which the Ottoman state was already on the verge of total collapse. The Ottoman state tried to counter the insurgency and these massacres and, as an administrative measure, decided to relocate the Armenians due to vital and legitimate security concerns. In this context, even if the treaty law were applicable, this could not be deemed as a genocidal act. The Armenian allegations are based on an ill-intentioned and distorted presentation of carefully selected parts of numerous cases to the eyes of the international public. This is a misleading approach and is neither legally nor ethically acceptable.

Furthermore, the Armenians are trying to silence up all opposition to their allegations, resorting to pressure, intimidation and terror. Still fresh in minds is the case of a group of academics who issued a joint declaration against the repeated attempts to put on the agenda a motion in favor of the Armenian genocide allegations. These academics included professors Dankwart Rustow, Tibor Halasi-Kun, J. C. Hurewitz, Halil İnalcık, Avigdor Levy, Stanford Shaw, Frank Tachau, Pierre Oberling, Bernard Lewis, Heath Lowry, Justin McCarthy, Alan Fischer and Roderick Davison. As a result of the campaign of attrition waged by fanatic Armenians a considerable part of these persons have been successfully “silenced”.

Turks have nothing to hide as regards their national history. Also, Turks urge the international community to probe, with the same humanitarian interest, the massacres staged against the Muslim peoples in the Caucasus, Crimea, the Balkans and, especially, Greece in 1821 and in its aftermath. The international community should be concerned also about the way some 300,000 Turks-Muslims that were killed by the Russian Army and the Bulgarian gangs in 1877-1878 and over one million Turks-Muslims that were exiled at that time. It should not forget the Turkish diplomats assassinated by the ASALA terror organization. It should focus on the current incidents before focusing on historical events: the massacre the Armenians committed in Hocalı, Azerbaijan constitutes only one such case. Armenia continues to occupy a significant part of the Azerbaijani territories and it makes territorial claims against Turkey. Yet, there are those who find the Armenian policies justified and choose to criticize Turkey rather than Armenia, in parallel with the Armenian demands. That criticism and these demands should be reviewed and corrected. These Armenian policies are not compatible with the aims and principles of either the Charter of the UN or the Organization for Security and Cooperation in Europe.

It is obvious that the Armenian question is a political dispute rather than a legal one. It can be resolved with political and diplomatic methods. This issue brings to mind the term “political football” commonly used in politics. Turkey must be able to implement the concepts, principles and methods such as “reciprocity”, “retaliation” and “reprisal” whenever needed in its relations with Armenia and the rest of the members of the international community.

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* Center for Eurasian Strategic Studies (ASAM) International Law Adviser. E-mail: scayci@asam.org.tr

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