GENOCIDE: SOME LEGAL CONSIDERATIONS
Today’s Zaman, Turkey
May 20 2014
by Halil Göksan*
Genocide, Armenia and Turkey: some legal considerations
Once upon a time, a man came across a hangman and asked him how he
could live with the burden of being responsible for the deaths of
hundreds of people.
The hangman replied quite easily: “Why would I be responsible? I just
execute orders. It’s up to the judges to feel guilty.” Then, the man
goes to see a judge and asks the same question. The judge replies:
“Why would I be responsible? I only apply the rules.”
In my view, that’s the best part of being a judge or a jurist,
neutrality. That’s what I’ll channel in the following paragraphs
regarding the issue between Armenia and Turkey. I think that one cannot
absolutely defend any aspect of what was done to the Armenian people
a century ago. However, qualifying these events as genocide is, first
of all, a juridical question. In this regard, I’ll try to present to
you how international law and the judgments of international tribunals
stand on this matter.
So, we will analyze this issue by referring to the following judgments:
â~@¢The Supreme Court of Switzerland’s (TF, Tribunal Fédéral in
French) decision in the Perincek case â~@¢The European Court of Human
Rights’ (ECtHR) judgment on Perincek v.
Switzerland (Dec. 17, 2013) â~@¢The International Court of Justice
(ICJ) in the case concerning the Application of the Convention on the
Prevention and Punishment of the Crime of Genocide between Bosnia
and Herzegovina and Serbia and Montenegro (Feb. 26, 2007) â~@¢The
jurisprudence of the International Criminal Tribunal for the former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda
(ICTR)
Judgments of the Swiss Supreme Court and ECtHR in Perincek
v. Switzerland
As the ECtHR underlined, genocide is, first of all, a well-defined
term in law. (§ 116) It is therefore necessary to refer straightaway
to this definition before even getting into historical facts. In this
regard, the ECtHR and the TF share the same view, saying that it
is not for the courts to settle historical facts. In order to make
this judgment, the TF said it is necessary to see whether there is
a consensus within the community to qualify the events of 1915 as
“genocide,” similar to the consensus about the Holocaust. (§ 3.4.3)
On this point, the TF emphasizes the existence of a consensus that
considers the atrocities of 1915-1917 as genocide, and it provides a
good number of arguments. (§ 4.2, 4.3, 4.4, 4.5) Then, it bases its
decision on the existence of such a consensus within the international
community.
At this point, the ECtHR accepts that it is primarily for national
authorities to enforce national laws, but it considers it appropriate
to clarify the term “consensus” used by the TF and it distinguishes its
view from the TF. (§ 114) The court said it would be highly difficult
to speak of a “general consensus” in this regard. (§ 115) It also adds
that there are “only 20 states [out of more than 190 in the world]
who have officially recognized Armenian genocide. Additionally, in
some of these cases, like Switzerland, the recognition is not even
from the government of these states, but only from their parliament
or a chamber thereof.” In this respect, in Switzerland, while the
National Council (one chamber of the general assembly) officially
recognized the Armenian genocide, the Federal Council (government)
repeatedly refused to do so.
The ECtHR goes further and emphasizes that “it is doubtful that
there can be a ‘general consensus,’ especially a scientific one, on
events such as those at issue here, since historical research is by
definition controversial and debatable and does not lend itself to
definitive conclusions or objective and absolute truths.” (§ 117)
It adds that the present case is clearly different from the Holocaust.
So, in a fairly clear and reasoned manner, the ECtHR overturned all of
the arguments of the TF and establishes that a “general consensus” does
not exist and it is doubtful that there can even actually be a “general
consensus” in Switzerland or in Europe or within the international
community to describe the atrocities of 1915-1917 as genocide.
What is the legal definition of genocide?
A second important point is to qualify an act as genocide from a
legal point of view.
According to the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide (CPPCG), 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;
d) Imposing measures intended to prevent births within the group; e)
Forcibly transferring children of the group to another group.”
Genocide is an extreme crime. In addition to intentionally committing
the serious acts mentioned above, in Article II of the 1948 Convention,
it is also necessary to have special intent (dolus specialis) —
that is to say an extra intention, that is qualified as a special or
specific intent, which is to have the intent to destroy the group
in whole or in part as such. ICJ underlines this point as follows:
“It is not enough that the members of the group are targeted because
they belong to that group, that is because the perpetrator has a
discriminatory intent. Something more is required. The acts listed
in Article II must be done with intent to destroy the group as such
in whole or in part. The words ‘as such’ emphasize that intent to
destroy the protected group.”
(§ 187) This view is also consistent with the jurisprudence of the
ICTY and ICTR.
This means that in order to qualify, from a legal point of view,
the atrocities of 1915-1917 as genocide, it is not only necessary
to establish that there were massacres in the Armenian population,
but it must also be shown that those responsible for these massacres
had the particular and specific intent (dolus specialis) to destroy
Armenians as such. At this point, I as the author would just like to
say that if there was a dolus specialis of genocide, it does not seem
logical that a method such as deportation would be used to destroy
a group in whole or in part.
Therefore, this second point shows that the jurisprudence of several
international courts confirms the very special and unique nature of
the concept of genocide and illustrates how difficult it is to legally
qualify atrocities and massacres or other cruel crimes as genocide.
State responsibility in a case of genocide
Difficulties related to the issue of the 1915-1917 events do not
stop here. A third point concerns the responsibility of Turkey as
the successor state of the Ottoman Empire.
Without getting into all other legal questions on the matter, we will
see directly whether Turkey can be considered responsible for genocide
insofar as we assume the existence of an Armenian genocide. The legal
issue here is whether the criminal acts of some individuals can be
attributed to Turkey or not.
In this regard, the jurisprudence of the ICJ is quite clear and
strict. Within the framework of the Srebrenica genocide, the ICJ,
in its 2007 decision, resumed its jurisprudence established under the
judgment of Nicaragua in 1986 and it again emphasized that there should
be “effective control” of the state over the perpetrators in order to
attribute these acts to the state itself. The court took this position,
taking into account the 1999 decision of the ICTY in the Tadic case,
where the ICTY rejected the jurisprudence of Nicaragua and concluded
that “overall control” was sufficient. As the ICJ has explained,
“the ICTY was not called upon in the Tadic case, nor is it in general
called upon, to rule on questions of state responsibility, since its
jurisdiction is criminal and extends over persons only.”(§ 403)
Therefore, the ICJ concluded that “the ‘overall control’ test is
unsuitable, for it stretches too far, almost to a breaking point,
the connection that must exist between the conduct of a state’s organs
and its international responsibility.”(§ 406).
With these arguments, the ICJ found that Serbia had not committed
genocide (for: 13, against: 2), had not conspired to commit genocide,
nor did it incite the commission of genocide (13-2), nor has it been
complicit in genocide (11-4). As regards the genocide committed in
Srebrenica in July 1995, the court concluded that Serbia only violated
its obligation to prevent genocide (12-3).
Concerning this last point, the court (13-2) added that its conclusion
is enough to satisfy expectations, and the case is not one in which
an order to pay compensation or a direction to provide assurances
and guarantees of non-repetition would be appropriate. Therefore, it
is possible to see quite clearly how complicated it is, from a legal
point of view, for a state to be guilty of having committed genocide.
If we summarize all of these judgments of international tribunals,
first of all, a general consensus to consider the massacres
against the Armenians in 1915 as genocide does not exist and, from
a scientific point of view, it is doubtful that there could be a
consensus to describe the atrocities and massacres of 1915-1917
as genocide. Secondly, even if there was such a consensus from a
policy perspective, since genocide is primarily a legal notion clearly
defined, it would be still necessary to have a legal analysis in order
to qualify atrocities and massacres or other cruel crimes as genocide.
Finally, even if we were legally to consider the massacres against the
Armenians as genocide, from a legal point of view it is impossible to
say that Turkey as a state is responsible for these wrongful acts,
taking into account the position of the ICJ in the framework of the
Srebrenica genocide.
This piece is, in fact, a brief application of the current state of
jurisprudence of international tribunals on the notion of genocide
(ECHR, ICJ, ICTY, ICTR) in respect to the atrocities and massacres
committed against the Armenian people in the years of 1915-1917. All
of this, of course, does not prevent and should absolutely not prevent
Turkey from starting initiatives for peace and reconciliation with
the Armenian people. In addition, the year 2015 could actually be an
opportunity for this kind of gesture, and we just hope that this is
what was in the head of Turkish Prime Minister
Recep Tayyip Erdogan in sending his condolences to the grandchildren
of the Armenians who suffered.
________________________________ *Halil Göksan is doctoral candidate
in international law at the University of Geneva.
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