Recognition of the Armenian Holocaust and Its Legal Implications — 100 years later



Av professor OVE BRING1

This paper deals with the issue of genocidal intent to the massacres in Anatolia during World War I. The available evidence indicates that the Ottoman Government was guilty of orchestrating a crime of genocide, as later defined by the United Nations Convention on the subject. On the other hand, due to legal norms of prescription, it is not possible anymore to apply principles of state responsibility to the Republic of Turkey. Thus, there is no legal duty to pay compensation today. However, it would be possible to require restitution of illegally seized property. The post-1915 possession of such property could be seen as a continuous violation of law that would make the norm of prescription irrelevant. As to ex gratia compensation and reconciliation, a way forward in future negotiations could be to replace the sensitive label of genocide (“the G-word”) with the concept of crimes against humanity.


The original meaning of the word holocaust is a sacrificial offering consumed by fire. The first time it was used in the context of persecution and mass murder was probably on the 10th of September 1895 when the New York Times on its front-page had the following headline: “Another Armenian Holocaust”. The reference was to the practices of the Ottoman sultan Abdul Hamid who had some 200 000 Armenians killed in 1894–1896.
    Later, during World War I, all Christian minority groups in the Ottoman Empire were to suffer from Government inspired religious persecutions. As we know, people were slaughtered or forced to leave their homes on death marches towards the Syrian desert. The number of victims may have been 1.2 millions — or more. A young PolishJewish student, by the name of Raphael Lemkin, took a legal interest in these events and later worked for a new category of international crimes that would cover intentional destruction of ethnic and religious groups and cultures. During World War II, as a refugee in the


1 Texten speglar ett inlägg som gjordes på en konferens i Beirut i februari 2012 rörande det armeniska folkmordet. Konferensen var arrangerad av ett armeniskt grekisk-ortodoxt samfund (bestående av en tredje generations flyktingar) med ursprung i Silicien i sydöstra Anatolien. Texten fungerade sedan som underlag för ett anförande under ett seminarium i den svenska riksdagen den 21 april 2015.

SvJT 2015 Recognition of the Armenian Holocaust… 659 United States, he came up with the word genocide. Lemkin was to become the father of the United Nations Genocide Convention.2 But let us return to World War I and the Ottoman Empire. The Young Turk Government wished the empire to develop into a modern nation-state, populated by an exclusive, homogeneous Turkish population. The “others” were not trusted, they were seen as potential traitors — basically because they had a different religion, were perceived as being supported by Western diplomacy and were perceived to support the Armenian revolutionary movement linked to Russian Caucasus. The year 1915 saw a systematic deportation and extermination of Armenians and other Christian groups in Anatolia, including Silicia. Public opinion in Europe was appalled. France, Britain and Russia issued a joint Declaration to the Ottoman Empire on the 24th of May 1915. It included the following text:


In view of these crimes against humanity [!] and civilization, the Allied Governments announce . . . that they will hold personally responsible . . . all members of the Ottoman Government and those of their agents who are implicated in such massacres”.


It was an announcement of individual legal responsibility. Moreover, it was probably the first time that the term “crimes against humanity” was used as a label for a new category of international crimes. But impunity would prevail, although attempts were made to avoid that.


Aborted trials
For Turkey the war ended with British occupation. In April 1919, the new Turkish Government was pressured by the British to set up a tribunal in Constantinople against the former political leaders. This was done under the system of Ottoman military law. A number of people were sentenced to death, some in absentia, three persons were executed and some were sentenced to 15 years in prison. Two senior district officials were convicted for deporting Armenians and acting against “humanity and civilization”. The court found that women and children had been brutally forced into deportation caravans and the men murdered. On the matter of what today is called genocidal intent the Turkish court said the following:


“The disaster visiting the Armenians was not a local or isolated event. It was the result of a premeditated decision taken by a central body; . . . and the excesses which took place were based on oral and written orders issued by that central body”.3


2 Om Raphael Lemkin, FN:s folkmordskonvention 1948 och händelserna i Anatolien 1915–1918 se min bok De mänskliga rättigheternas väg – genom historien och litteraturen (2011), s. 12 ff., 322 ff. och 454 ff. 3 Samantha Power, A Problem from Hell, America and the Age of Genocide (2002), p. 15, quoting Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes
Tribunals (2000), p. 129.

660 Ove Bring SvJT 2015 But the trials were not popular in Turkey. They were well reported in the newspapers, but the public did not want to hear about crimes committed against the Christian population. In 1921 the trials petered out. Nationalistic sentiments prevailed. A culture of impunity and denial took hold.
    Nevertheless, there was also the plan for Allied or international prosecutions. The British occupation forces transferred a group of “high value prisoners” to Malta, pending a trial. Such a legal scenario was foreseen in Article 230 of the Peace Treaty of Sèvres (1920), but that treaty was never ratified and never entered into force, due to revolutionary events in Turkey. General Mustafa Kemal (later Kemal Atatürk) was busy creating a new Turkey. He extended his military control of Turkish territory and opposed any peace treaty which was seen as humiliating.
    In 1923 the treaty of Sèvres was replaced by the new Peace Treaty of Lausanne, which was accompanied by a “Declaration of Amnesty” relating to crimes committed during the war. By that time, the prisoners at Malta had been exchanged for some British prisoners captured in 1920 by Atatürk. Thus, the Treaty of Lausanne dropped all mentioning of prosecution. The chance of asserting individual responsibility for international crimes was lost. Nor did the Lausanne Treaty provide for any state responsibility regarding compensation to victimized ethnic and religious communities. In that legal sense, the Treaty of Lausanne was a failure and a case of lost opportunities.


A literary interlude
In 1933 a novel of adventure and heroism is published in Germany and Austria which describes an actual event in Silicia during the war. It is the Austrian-Jewish author Franz Werfel who publishes The Forty
Days of Musa Dagh. The story is located in the Mountain of Moses, Musa Dagh, close to the coastline in the north-east corner of the Mediterranean. The novel describes how the people in an Armenian Village decide to resist demands of deportation. They arm themselves and flee up along the mountain slope. They are pursued by Turkish troops but in the end they are rescued by a French naval vessel.
    It transpired in 1934 that Hollywood, namely Metro-Goldwyn-Mayer (MGM), planned to produce a film based on Werfel´s book. The Turkish Government protested and alerted Washington. The State Department turned to MGM and indicated that the filming of Musa
Dagh would be “detrimental to the cordial feelings” between the peoples of the United States and Turkey. The project was stopped. After the death of Kemal Atatürk in 1938, new rumours that the film would be made led to renewed Turkish protests and again the State De-

SvJT 2015 Recognition of the Armenian Holocaust… 661 partment pressurized Hollywood. Now the project was abandoned for good.4 Werfel´s book conveyed the heroism of a threatened ethnic and religious minority and the book was prohibited in Nazi Germany. In the book and in real life the Armenians were led to their rescue by their young leader. His name was Movses Der-Kalustian and he later settled in Lebanon, was elected as a Member of Parliament and died in Beirut 1984 at the age of 89. This was a story with a happy outcome, but most Armenians experienced, as we know, something completely different.
    Adolf Hitler referred to the fate of Armenians in a speech before his generals in August 1939, just before the invasion of Poland. “We have to be hard” he said, the only thing that people will remember later on, he indicated, will be the results of successful military action. And then he added: “Who still talks nowadays of the extermination of the Armenians (Wer redet heute noch von der Vernichtung der Armenier?)”.5 This statement should not be perceived as a reference to the coming Holocaust of the Jews, which was not yet decided upon, but as a conviction that impunity would prevail.
    In the case of the Armenian genocide, impunity was accompanied by an absence of compensation. But there was no oblivion involved. The survivors of 1915, and their children and grandchildren, have kept the issue alive. They want recognition and reconciliation.


The 1948 Convention and the issue of genocidal intent
In 1948, the General Assembly of the UN adopted the Convention for the Prevention and Punishment of Genocide. The crime in question was defined as an intentional, premeditated, policy of eliminating, in whole or in part, “a national, ethnical, racial or religious group, as such”. The content of the Convention was not part of international law before 1948, but its definition has nevertheless been applied retroactively to the events of 1915, not by legal institutions, but by actors of the civil society.
    One point of view has been that Ottoman documents clearly show an intention to deport and relocate the Armenians, but not to exterminate the group systematically, in whole or in part. The opposite point of view is that the Young Turk Government had in fact the intention to destroy the Armenian nation as such, as far as it existed within the borders of the Ottoman Empire.
    Among the pieces of evidence we have, indicating a genocidal intent, I would like to highlight the following:



4 The story is retold by Guenter Lewy, The Armenian Massacres in Ottoman Turkey (2005), pp. 262–63. 5 The secret notes from the meeting were probably taken by Admiral Wilhelm Canaris and picked up by the American journalist Louis Lochner, who later published the quote in his book What about Germany? (1942).

662 Ove Bring SvJT 2015 (1). In July 1915 the German Ambassador in Constantinople protested against the massacres of Armenians and other Christian groups. As a consequence the Minister of the Interior, Talaat Pascha, sent a telegram to a certain Governor in the provinces. It read in part:


“It has been reported to us that the Armenians of the province . . . , along with other Christians, are being massacred, and that some 700 Armenians and other Christians were recently slaughtered in Mardin like sheep . . . The number of people slain through such massacres is estimated to be 2 000. It is feared that unless such acts are stopped definitely and swiftly, the Muslim population of the region may proceed to massacre the Christian population in general. The political and disciplinary measures adopted against the Armenians are absolutely not to be extended to other Christians, as such acts are likely to create a very bad impression on public opinion. You are ordered to put an immediate end to these acts . . . [so that they not] threaten the lives of the other Christians . . .”.6

This cable from Constantinople confirms that the Armenians were targeted for special treatment, although it does not indicate any genocidal intent for other Christian groups. It is not full proof of genocidal intent vis-à-vis the Armenians either, but close to it.


(2). Other pieces of evidence were collected as statements from witnesses in the so called Bryce & Toynbee Report, presented to the British Parliament in 1916. According to a Danish nurse a shocked German Consul had told her that, in his meeting with a provincial Turkish Governor, the latter had indicated that his instructions made clear that “the Armenians in Turkey must be, and were going to be, exterminated”.7 The Bryce & Toynbee Report corroborated this perception of a policy by a large number of first-hand witnesses who could tell about instances of slaughter of helpless Armenians.


(3). Another kind of witness report was filed by the US Ambassador in Constantinople, Henry Morgenthau, who in a book published in 1918 recounted his conversations with leading Young Turk Government ministers. When the Minister of War, Enver Pascha, was approached on the subject of death marches and massacres, he was diplomatically given the chance to blame subordinate officials in the provinces. However, Enver Pascha surprised Morgenthau by exclaiming that of course he, as a leading political figure, knew exactly what was going on in the country and was prepared to take full responsibility for it.


(4). In Sweden, the British-Ukrainian political scientist, David Gaunt, has conducted extensive research on the massacres in Eastern Anatolia during World War I. Gaunt has assembled a mass of evidence


6 Quoted in David Gaunt, Massacres, Resistance, Protectors: Muslim-Christian Relations in Eastern Anatolia During World War I (2006), p. 73 f. 7 Viscount Bryce & Arnold Toynbee, The Treatment of Armenians in the Ottoman Empire 1915–1916, Report presented to both Houses of Parliament (1916), p. 258.

SvJT 2015 Recognition of the Armenian Holocaust… 663 pointing to the existence of a genocide in 1915–16, although his focus is not on legal criteria. He also cites the Bryce & Toynbee Report of 1916. An American missionary produced information on slaughter of Christians in the Jezire area and wrote the following, indicating a genocidal intent:


“The terrible feature about it was that, after the first slaughter, there were Kurds who tried to save some of the Christians alive, but the Government would not permit it. . . . Their Kurdish agha [chieftain] . . . gave them warning that he would not be able to protect them, as the massacre was being pressed by the Government.”8

In 1941 Winston Churchill said about the reports of the Jewish Holocaust: “We are in the presence of a crime without a name”.
    The massacres of 1915–16 were called a crime against humanity at the time and this formula has since developed into a concept of modern international law. The modern definition of crimes against humanity (“widespread or systematic attack” against civilians) covers what was going in Anatolia during World War I, but the question is whether those events could also be categorized as genocide? We obviously have a number of indications of genocidal intent, but maybe they do not amount to full proof of a deliberate genocidal policy. The official Turkish position today is that the Armenian casualties were unfortunate victims of internal conflict within the context of World War I, in fact, that these civilians were victims of war, just like so many Turkish soldiers were.
    Anyway, it should be clear to everyone that the Young Turk Government instigated a ”culture” of violence and hatred against parts of its own population that led to the results we know of today. In modern Turkey history is politicized. To speak about genocide in a present political context is considered a defamation of the Turkish nation.
     State responsibility could have been established by the Peace Treaty of Lausanne in 1923, but this did not happen. The United Nations arguably had a chance to address the matter after the adoption of the Genocide Convention in 1948. But since this did not happen either, legal claims for compensation, based on Turkish state responsibility, are not possible anymore. International law includes a vague principle of prescription of claims. Even if no fixed time limit is part of the principle of prescription, it is clear that too many decades have passed for economic claims to be legally operative today. On the other hand restitution of property is possible. The illegal possession of property could be seen as a continuous violation of the rule of law that would make the principle of prescription irrelevant.


8 David Gaunt (2006), p. 230 and 236.

664 Ove Bring SvJT 2015 If state responsibility is only workable to a limited extent, individual responsibility is not an issue at all today, since there are no perpetrators left to bring before a court or tribunal. They are all dead.
    But anyhow, the overarching issue is not one of law; it is one of morality, recognition and reconciliation. Descendants want recognition of past criminal behavior, not in order to receive economic compensation, but in order to attain a sense of emotional justice and be able to lay things at rest.
    The Turkish position is that one cannot claim that genocide did happen, since only courts and tribunals can express themselves on a legal issue like that. But a legal system does not exclusively belong to the jurists, it belongs to all of us who are linked to it. Public opinion plays a part in shaping legal directions, in framing an opinio juris. The international legal order is a matter of concern for all relevant actors; obviously for states, international organizations and tribunals, but also for NGOs, individuals and other representatives of civil society. We may all use our freedom of speech to relate history to modern legal concepts and we are free to argue in quasi-legal terms and reach quasi-legal conclusions — which of course could be contradicted by others, using their freedom of speech in an open discussion.
    There is no national or international tribunal today that is competent to handle the issue of the massacres of Christian groups during World War I. But one could of course imagine a bilateral treaty between the two most concerned states, the Republic of Turkey and the Republic of Armenia, where a Tribunal or a Commission is created with a mandate to express itself on history and recommend compensation, ex gratia or otherwise, to one or several representative bodies. In fact, in October 2009 a Protocol was signed between the two republics where it was agreed to


“implement a dialogue on the historical dimension with the aim to restore mutual confidence between the two nations, including an impartial scientific examination of the historical records and archives to define existing problems and formulate recommendations”.


This agreement has not been ratified and has not entered into force. Due to political opposition from different quarters it seems to be a dead end. Anyway, it is not realistic to expect that a procedure of dialogue and historical examination would lead to the desired recognition and reconciliation, unless the controversial G-word (genocide) is dropped from the process. The modern legal concept of crime against humanity could be used instead.
    As being the most serious international crimes, genocide and crimes against humanity are in a category of themselves. They are in a sense interchangeable; one could be as egregious as the other, depending on the circumstances of the case. Genocide is a question of intent, not of numbers; while the concept of crimes against humanity

SvJT 2015 Recognition of the Armenian Holocaust… 665 is related to numbers and defined as mass murders, extermination and deportation “committed as part of a widespread or systematic attack directed against any civilian population with knowledge of the attack” (Article 7 of the Statute of the International Criminal Court).
    Certainly this definition, expressing an intent to attack civilians, but not necessarily a genocidal intent, covers what happened in 1915–16. Is it enough to be workable in the situation of today, taking into account the emotions involved? The Swedish Parliament decided in March 2010, with a narrow vote, to recognize the events of 1915–16 as genocide, but the Swedish Government has so far not transformed the Parliamentary recognition into a foreign policy. It is only the executive power (governments) who conducts foreign policy, not parliaments or municipal bodies. The French Senate, and earlier the National Assembly, has voted for a controversial piece of legislation making it illegal to deny the Armenian genocide. In the short run these kinds of external political manifestations seem to be counterproductive to the cause of reconciliation, creating international tensions. But in the long run, if such manifestations are joined by similar utterances on the part of governments, such international reactions may be useful since they would send a signal to Ankara that the issue will not disappear and that a change of policy is expected.
    All the same, there is a need for constructive initiatives. Perhaps an independent group of international experts (on diplomacy, history and law) should be convened, with a mandate to think out of the box, with the aim to stimulate a renewal of the bilateral reconciliation process between Ankara and Jerevan, and also with the aim of including the Armenian Diaspora in such a process.