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THE ARMENIAN CAUSE AND INTERNATIONAL LAW
By Alfred de Zayas
AZG DAILY
02-06-2011
Murder has been a sin since Cain killed Abel, long before the first
attempts by lawyers to codify penal law, before the Hammurabi and
other ancient codes. More fundamentally, murder is a crime by virtue
of natural law, which is prior to and superior to positivistic law.
Crimes against humanity and civilization were crimes before the
British, French and Russian note condemned the Armenian massacres
in 1915. Genocide was a crime before Raphael Lemkin coined the term
in 1944.
According to article 38 of the Statute of the International Court of
Justice, general principles of law are a principal source of law. Not
only positivistic law - not only treaties, protocols and charters - but
also the immanent principles of law are sources of law before the ICJ
and can be invoked. Among such principles are "ex injuria non oritur
jus" which lays down the rule that out of a violation of law no new
law can emerge and no rights can be derived. This is a basic principle
of justice - and of common sense. Another general principle of law is
"ubi jus, ibi remedium", where there is law, there is also a remedy,
in other words, where there has been a violation of law, there must
be restitution to the victims. This principle was reaffirmed by the
Permanent Court of International Justice in its famous judgement in
the Chorzow Factory Case in 1928. Another general principle is that
the thief cannot keep the fruits of the crime. Another principle
stipulates that the law must be applied in good faith, uniformly,
not selectively. Thus, there is no international law a la carte.
And yet there are those who claim that the Armenians have no
justiciable rights, because the Genocide Convention was only adopted
1948, more than 30 years after the Armenian Genocide, and because
treaties are not normally applied retroactively. This, of course,
is a fallacy, because the Genocide Convention was drafted and adopted
precisely in the light of the Armenian genocide and in the light of
the Holocaust. Not only the Armenian Genocide but also the Holocaust
predated the Convention, and no one would question the legitimacy
of the claims of the survivors and descendants of the victims of
the Holocaust, simply because the Nazi atrocities were committed
before the entry into force of the Genocide convention. Moreover,
this argumentation is a kind of red herring, intended to confuse and
to distract attention from the legal basis of the Armenian claims.
Indeed, the rights of the Armenians do not derive from the
Genocide Convention. Rather: the Genocide Convention strengthens
the pre-existing rights of the Armenian to recognition as victims,
to restitution and compensation.
Articles 144 and 230 of the Treaty of Sevres, signed on August 10, 1920
by four representatives of the Ottoman Sultan Mehmed VI, recognized
the rights of the survivors of the extermination campaign against
the Christian minorities of the Empire, including the Armenians,
the Greeks from Pontos, the Chaldeo-Assyrians, and affirmed the
obligation of the Turkish State to investigate these crimes and punish
the guilty. Article 144 stipulated in part:
"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. It recognises that any immovable or movable property of the
said Turkish subjects or of the communities to which they belong,
which can be recovered, must be restored to them as soon as possible,
in whatever hands it may be found..."
Article 230 stipulated in part: "The Turkish Government undertakes
to hand over to the Allied Powers the persons whose surrender may
be required by the latter as being 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. The Allied Powers
reserve to themselves the right to designate the tribunal which shall
try the persons so accused, and the Turkish Government undertakes to
recognize such tribunal...."
Even though the League of Nations never established an international
criminal tribunal to try the Turkish perpetrators of the genocide
against the Armenians and other Christian minorities, numerous trials
under Turkish law did take place in Istanbul in 1919, even before the
treaty of Sevres was signed. The Turkish authorities conducted these
trials against Ottoman officials involved in the genocide pursuant
to the Ottoman penal code. Many were convicted and three persons
were executed.
The Treaty of Sevres, however, was not implemented, because of the
coup d'etat against the Sultan conducted by a Turkish general, Mustafa
Kemal, who not only overthrew the Sultan but proceeded to wage war
against the Greeks and the British, push them out of Anatolia and
negotiate a new Peace Treaty with the Allies, which ensured impunity
for the thousands of Turkish officials, officers and soldiers involved
in the massacres.
To deny that the Armenian massacres amounted to genocide manifests
both ignorance of the facts and bad faith. There is no doubt that
the Armenian genocide was many times worse than the ethnic cleansing
that occurred in the former Yugoslavia in the 1990s, a crime which
the UN General Assembly in its resolution 47/121 (1992) considered
"a form of genocide". There is no doubt that the massacres of the
Armenians were many times worse than the massacre of Srebrenica,
which the International Criminal Tribunal for the Former Yugoslavia
and the International Court of Justice condemned as genocide.
But let us return to the general principle of law ubi jus ibi
remedium. What is of relevance today is not the punishment of the
guilty, because no person criminally responsible for the massacres is
still alive. What is crucial is the right to the Armenian homeland,
which entails the right to return and the right to restitution
and compensation. In this context it is relevant to cite the final
Report of the United Nations Special Rapporteur on the Human Rights
Dimensions of Population Transfers, Awn Shawkat Al Khasawneh (today
a judge at the ICJ).
The Declaration appended to the Report, which was formally adopted by
the Commission on Human Rights and by ECOSOC provides in article 8:
"Every person has the right to return voluntarily, and in safety
and dignity, to the country of origin and, within it, to the place of
origin or choice. The exercise of the right to return does not preclude
the victim's right to adequate remedies, including restoration of
properties of which they were deprived in connection with or as a
result of population transfers, compensation for any property that
cannot be restored to them, and any other reparations provided for in
international law. "Article 10 reiterates the erga omnes obligation
of all States not to recognize the consequences of crime: "Where acts
or omissions prohibited in the present Declaration are committed, the
international community as a whole and individual States, are under
an obligation: (a) not to recognize as legal the situation created
by such acts; (b) in ongoing situations, to ensure the immediate
cessation of the act and the reversal of the harmful consequences;
(c) not to render aid, assistance or support, financial or otherwise,
to the State which has committed or is committing such act in the
maintaining or strengthening of the situation created by such act."
Similarly, the United Nations Basic Principles and Guidelines on the
Right to a Remedy, adopted by the General Assembly on 16 December 2005
stipulate in part in Article IX: "19. Restitution should, whenever
possible, restore the victim to the original situation before the gross
violations of international human rights law or serious violations
of international humanitarian law occurred. Restitution includes,
as appropriate: restoration of liberty, enjoyment of human rights,
identity, family life and citizenship, return to one's place of
residence, restoration of employment and return of property. 20.
Compensation should be provided for any economically assessable damage,
as appropriate and proportional to the gravity of the violation and
the circumstances of each case, resulting from gross violations of
international human rights law and serious violations of international
humanitarian law, such as: (a) Physical or mental harm; (b) Lost
opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning
potential; (d) Moral damage; (e) Costs required for legal or expert
assistance, medicine and medical services, and psychological and
social services." Since there is no statute of limitations applicable
in cases of genocide and crimes against humanity, the Armenian claims
to restitution and compensation continue to be valid to this day. Most
importantly, however, the Armenians have a right to recognition as
victims of genocide. They have a right to truth (6) and a right to
historical memory. Such recognition is a fundamental human right
and a sine qua non to reconciliation. For decades the Armenians were
victims of silence. And indeed, the crime of silence is worse than
that of negationism. International law will ensure that truth and
justice shall prevail.
(Alfred de Zayas is an American lawyer, writer, historian and expert
in the field of human rights, as well as a former high-ranking United
Nations official. He is currently a professor of international law
at the Geneva School of Diplomacy and International Relations and was
formerly a senior lawyer with the Office of the UN High Commissioner
for Human Rights. De Zayas has written and lectured extensively
on human rights, including the Armenian Genocide. This commentary
originally appeared in www.neurope.eu.)
By Alfred de Zayas
AZG DAILY
02-06-2011
Murder has been a sin since Cain killed Abel, long before the first
attempts by lawyers to codify penal law, before the Hammurabi and
other ancient codes. More fundamentally, murder is a crime by virtue
of natural law, which is prior to and superior to positivistic law.
Crimes against humanity and civilization were crimes before the
British, French and Russian note condemned the Armenian massacres
in 1915. Genocide was a crime before Raphael Lemkin coined the term
in 1944.
According to article 38 of the Statute of the International Court of
Justice, general principles of law are a principal source of law. Not
only positivistic law - not only treaties, protocols and charters - but
also the immanent principles of law are sources of law before the ICJ
and can be invoked. Among such principles are "ex injuria non oritur
jus" which lays down the rule that out of a violation of law no new
law can emerge and no rights can be derived. This is a basic principle
of justice - and of common sense. Another general principle of law is
"ubi jus, ibi remedium", where there is law, there is also a remedy,
in other words, where there has been a violation of law, there must
be restitution to the victims. This principle was reaffirmed by the
Permanent Court of International Justice in its famous judgement in
the Chorzow Factory Case in 1928. Another general principle is that
the thief cannot keep the fruits of the crime. Another principle
stipulates that the law must be applied in good faith, uniformly,
not selectively. Thus, there is no international law a la carte.
And yet there are those who claim that the Armenians have no
justiciable rights, because the Genocide Convention was only adopted
1948, more than 30 years after the Armenian Genocide, and because
treaties are not normally applied retroactively. This, of course,
is a fallacy, because the Genocide Convention was drafted and adopted
precisely in the light of the Armenian genocide and in the light of
the Holocaust. Not only the Armenian Genocide but also the Holocaust
predated the Convention, and no one would question the legitimacy
of the claims of the survivors and descendants of the victims of
the Holocaust, simply because the Nazi atrocities were committed
before the entry into force of the Genocide convention. Moreover,
this argumentation is a kind of red herring, intended to confuse and
to distract attention from the legal basis of the Armenian claims.
Indeed, the rights of the Armenians do not derive from the
Genocide Convention. Rather: the Genocide Convention strengthens
the pre-existing rights of the Armenian to recognition as victims,
to restitution and compensation.
Articles 144 and 230 of the Treaty of Sevres, signed on August 10, 1920
by four representatives of the Ottoman Sultan Mehmed VI, recognized
the rights of the survivors of the extermination campaign against
the Christian minorities of the Empire, including the Armenians,
the Greeks from Pontos, the Chaldeo-Assyrians, and affirmed the
obligation of the Turkish State to investigate these crimes and punish
the guilty. Article 144 stipulated in part:
"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. It recognises that any immovable or movable property of the
said Turkish subjects or of the communities to which they belong,
which can be recovered, must be restored to them as soon as possible,
in whatever hands it may be found..."
Article 230 stipulated in part: "The Turkish Government undertakes
to hand over to the Allied Powers the persons whose surrender may
be required by the latter as being 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. The Allied Powers
reserve to themselves the right to designate the tribunal which shall
try the persons so accused, and the Turkish Government undertakes to
recognize such tribunal...."
Even though the League of Nations never established an international
criminal tribunal to try the Turkish perpetrators of the genocide
against the Armenians and other Christian minorities, numerous trials
under Turkish law did take place in Istanbul in 1919, even before the
treaty of Sevres was signed. The Turkish authorities conducted these
trials against Ottoman officials involved in the genocide pursuant
to the Ottoman penal code. Many were convicted and three persons
were executed.
The Treaty of Sevres, however, was not implemented, because of the
coup d'etat against the Sultan conducted by a Turkish general, Mustafa
Kemal, who not only overthrew the Sultan but proceeded to wage war
against the Greeks and the British, push them out of Anatolia and
negotiate a new Peace Treaty with the Allies, which ensured impunity
for the thousands of Turkish officials, officers and soldiers involved
in the massacres.
To deny that the Armenian massacres amounted to genocide manifests
both ignorance of the facts and bad faith. There is no doubt that
the Armenian genocide was many times worse than the ethnic cleansing
that occurred in the former Yugoslavia in the 1990s, a crime which
the UN General Assembly in its resolution 47/121 (1992) considered
"a form of genocide". There is no doubt that the massacres of the
Armenians were many times worse than the massacre of Srebrenica,
which the International Criminal Tribunal for the Former Yugoslavia
and the International Court of Justice condemned as genocide.
But let us return to the general principle of law ubi jus ibi
remedium. What is of relevance today is not the punishment of the
guilty, because no person criminally responsible for the massacres is
still alive. What is crucial is the right to the Armenian homeland,
which entails the right to return and the right to restitution
and compensation. In this context it is relevant to cite the final
Report of the United Nations Special Rapporteur on the Human Rights
Dimensions of Population Transfers, Awn Shawkat Al Khasawneh (today
a judge at the ICJ).
The Declaration appended to the Report, which was formally adopted by
the Commission on Human Rights and by ECOSOC provides in article 8:
"Every person has the right to return voluntarily, and in safety
and dignity, to the country of origin and, within it, to the place of
origin or choice. The exercise of the right to return does not preclude
the victim's right to adequate remedies, including restoration of
properties of which they were deprived in connection with or as a
result of population transfers, compensation for any property that
cannot be restored to them, and any other reparations provided for in
international law. "Article 10 reiterates the erga omnes obligation
of all States not to recognize the consequences of crime: "Where acts
or omissions prohibited in the present Declaration are committed, the
international community as a whole and individual States, are under
an obligation: (a) not to recognize as legal the situation created
by such acts; (b) in ongoing situations, to ensure the immediate
cessation of the act and the reversal of the harmful consequences;
(c) not to render aid, assistance or support, financial or otherwise,
to the State which has committed or is committing such act in the
maintaining or strengthening of the situation created by such act."
Similarly, the United Nations Basic Principles and Guidelines on the
Right to a Remedy, adopted by the General Assembly on 16 December 2005
stipulate in part in Article IX: "19. Restitution should, whenever
possible, restore the victim to the original situation before the gross
violations of international human rights law or serious violations
of international humanitarian law occurred. Restitution includes,
as appropriate: restoration of liberty, enjoyment of human rights,
identity, family life and citizenship, return to one's place of
residence, restoration of employment and return of property. 20.
Compensation should be provided for any economically assessable damage,
as appropriate and proportional to the gravity of the violation and
the circumstances of each case, resulting from gross violations of
international human rights law and serious violations of international
humanitarian law, such as: (a) Physical or mental harm; (b) Lost
opportunities, including employment, education and social benefits;
(c) Material damages and loss of earnings, including loss of earning
potential; (d) Moral damage; (e) Costs required for legal or expert
assistance, medicine and medical services, and psychological and
social services." Since there is no statute of limitations applicable
in cases of genocide and crimes against humanity, the Armenian claims
to restitution and compensation continue to be valid to this day. Most
importantly, however, the Armenians have a right to recognition as
victims of genocide. They have a right to truth (6) and a right to
historical memory. Such recognition is a fundamental human right
and a sine qua non to reconciliation. For decades the Armenians were
victims of silence. And indeed, the crime of silence is worse than
that of negationism. International law will ensure that truth and
justice shall prevail.
(Alfred de Zayas is an American lawyer, writer, historian and expert
in the field of human rights, as well as a former high-ranking United
Nations official. He is currently a professor of international law
at the Geneva School of Diplomacy and International Relations and was
formerly a senior lawyer with the Office of the UN High Commissioner
for Human Rights. De Zayas has written and lectured extensively
on human rights, including the Armenian Genocide. This commentary
originally appeared in www.neurope.eu.)