Second Pan-Armenian Forum of Lawyers
July 5-6, 2013
Presentation by Kate Nahapetian1
Government Affairs Director of the Armenian National Committee of America
The Armenian Genocide was indeed a crime under international law at the time. Although many attempt to frame the unresolved nature of the genocide as a bilateral conflict between Armenia and Turkey, it is instead a crime against humanity that creates an obligation on all states to confront it.
In the immediate aftermath of the genocide, the international community repeatedly stated that reparations were in order. For instance, U.S. Secretary of State Bainbridge Colby wrote to the French Ambassador on March 24, 1920, “The Government of the United States is convinced that the civilized world demands that Armenia … must be so defined as to satisfy all the legitimate claims of her people, and particularly she must receive a free access to the sea, an indispensable condition to her existence.”
Reparations – Established Principle of International Law
The well known Chorzow Factory case between Germany and Poland for properties stolen in 1922 firmly established by an international court that “It is a principle of international law that the breach of an engagement involved an obligation to make reparation in an adequate form.”2 The case was decided by the Permanent Court of International Justice, the precursor to the International Court of Justice of today.
Turkey surely appreciates the need for reparations for even historic violations. In its quest to acquire antiquities from museums in Europe that were taken decades ago, Turkey recently stated that the passing of time cannot be an excuse for failing to pay reparations. Turkey’s Director General of Cultural Heritage and Museums, Murat Suslu asked in September 2012, “If you come to my house and you steal precious objects from me, do I not have a right to get them back?”
Turkey’s Cultural Minister Ertgul Gunay says that looting is wrong no matter when it occurred stating, “Artifacts just like people have souls and historical memories. When they are repatriated to their countries, the balance of nature will be restored.”3
The quintessential example of reparations is Germany’s reparations paid to Israel and Jewish survivors of the Holocaust. It is worthy to note that these reparations were the result of negotiations and not a court order or proceeding. International law played a role in framing the issues and violations, but more important was Germany and its leadership, which was willing to atone for the crimes.
Noteworthy is the fact that East Germany did not pay reparations directly after the war. Only in the 1990s did it pay and after decades of failed attempts by the Jewish community to realize reparations. The East German example shows the importance of internal leadership and outside pressure from key allies. It also shows that reparations can still be realized many decades after atrocities were committed and despite early failures.
Role of Armenian Genocide Legislation
Armenian Genocide legislation around the world plays the important role of keeping the pressure on and isolating Turkey’s denialist position. In recent history in the United States, Armenian Genocide initiatives have passed several times either through amendments on the House floor or on the committee level.
Each time, the process has lead to more awareness about the Armenian Genocide. A few years ago, many congressional offices did not know about the Armenian Genocide, but now the vast majority of congressional staff know about it and a growing number appreciate the need for a just resolution.
The Armenian National Committee of America (ANCA) has moved beyond reaffirmation and is working towards restitution and reparations. Several years ago already, the ANCA successfully initiated a resolution, calling on Turkey to return church properties that were confiscated during the Armenian Genocide. Within weeks of the House Foreign Affairs Committee overwhelmingly passing a resolution in July 2011, calling on Turkey to return all confiscated church properties, Turkey announced a decree that it was going to start returning church properties. Although this was a token gesture and dealt with properties that were confiscated since the 1930s and the decree has not been fully implemented, it was a step towards the return of properties. The discussion is on restitution and not recognition.
The current Armenian Genocide Truth and Justice Resolution (H.Res. 227) is also not about reaffirmation, but about the consequences of the genocide and Turkey’s responsibility. It calls for “a fair, just, and comprehensive international resolution” for the Armenian Genocide. Cosponsors of the resolution include several congressional leaders, including the highest ranking Democrats on the House Foreign Affairs Committee and the powerful Appropriations Committee.
Turkey’s Call for Atonement
Decades of outside pressure and resolutions have kept the Armenian Genocide relevant to current affairs and as a result, more and more Turkish writers and intellectuals are discussing Turkey’s responsibility for the genocide. Djemal Pasha’s grandson Hasan Djemal even recently published a book on the Armenian Genocide and has urged Turkey to come to terms with it. Over the past several years, the Armenian Genocide is being commemorated in Turkey and no longer in just Istanbul. The discussion for reparations has also begun in Turkey itself with most notably a conference organized in 2010 by the Ankara Freedom of Thought Initiative, where Turkish intellectuals advocated for Turkey to pay reparations to Armenians.
Three Main Categories of Claims
Claims arising from the Armenian Genocide fall into three main categories: 1) State claims; 2) Community claims; and 3) Individual claims. Neither the Armenian state nor the Diaspora can resolve all the claims alone, but need to work together.
State claims are the most important and concern border issues. Turkey points to the Kars Treaty and the Lausanne Treaty in its attempts to claim that there is no international dispute over its border with Armenia. However, neither is valid in relation to Turkey’s border with Armenia. In addition to the research conducted by Ara Papian concerning the invalidity of these treaties, since the Turkish authorities signing them did not have legitimate authority to do so at the time, one must note that unlike the Treaty of Sevres, the Lausanne Treaty delineated the border with several of Turkey’s neighbors, but it specifically did not address its border with either Armenia or the Soviet Union.
The Kars Treaty, which was not signed by an independent Armenia, but by a nation captured as part of the Soviet Union, did address the border between the Soviet Union and Turkey, but this treaty is invalid for many reasons, most notably by Turkey’s very actions itself. Turkey’s over 20 year economic blockade of Armenia has invalidated the Kars Treaty, which under Article 7 and 8 obliges parties to provide an open border. One could argue that Turkey has a greater interest than Armenia in ending its blockade, since the blockade is undermining the very treaty it relies on to enforce the old Soviet-Turkish boundaries.
Church related claims also have a strong foundation, since their documentation and property records are harder for Turkey to deny. Also, it continues to survive as an entity after the genocide, unlike countless of families who had no survivors to collect benefits after the genocide. It will be important to follow, the Armenian Patriarchate recently filed claim for the return of properties belonging to the Sanasarian College in Erzerum, which was confiscated following the genocide. The church has also had some luck pursuing similar claims before the European Court of Human Rights.
Individual claims for the genocide have been pursued recently in United States courts, since the United States has the unique class action procedure that allows for claims of similarly situated individuals to be pursued jointly against a defendant. A district court held in March 2013 that Turkey was in fact not immune from property claims dating back to the Armenian Genocide. Foreign states are usually immune from lawsuits in the United States through the Foreign Sovereign Immunity Act (FSIA). However, the court held that if properties were stolen during gross violations of human rights such as genocide a state is not immune from these claims, even if they involve policies towards their own citizens. The court, however, dismissed the case on other grounds. Both Armenian plaintiffs and Turkey are appealing this ruling, which is pending.
International Community’s Obligation
The obligation to enforce these rights do not fall on Armenia alone. There is also an interest for other countries, especially ones with more influence over Turkey, to work towards a just resolution of the Armenian Genocide.
Genocide is not a crime against only the victimized group, but a crime against humanity reaching to the level of a peremptory norm or jus cogens, which cannot be derogated. As a result, all nations have a right to prosecute genocide. In fact, the Genocide Convention, to which the United States, France, Germany, Russia, Turkey, and Armenia, are all a party, obligates states to “prevent and punish” its violation. In addition, Article III of the Convention declares that complicity to commit genocide, along with the act of genocide itself, will be one of the five acts punishable by the Convention. In fact, states which aid and abet Turkey’s denial of the Armenian Genocide and its efforts to evade accountability are violating their obligation under this treaty. In the International Court of Justice’s opinion in Bosnia v. Serbia II, Judge Lauterpacht in a separate opinion explained, “The duty to ‘prevent’ genocide is a duty that rests upon all parties and is a duty owed by each party to every other … .” Furthermore, Article 41(2) of the Articles of the International Law Commission (ILC) on the Responsibility of States for Internationally Wrongful Acts states that “no State shall recognize as lawful a situation created by a serious breach” of a peremptory norm of general international law (such as genocide). Therefore, the international community is also under an obligation not to recognize as lawful the spoils and properties that Turkey enjoys as a result of the genocide.
Turkey has a strong interest in a just resolution, since its failure to atone for this crime continues to mar its relations with the United States and Europe to this day. Turkey will not be able to play the role of a respected regional power, until it comes to term with the Armenian Genocide and negotiates a just resolution. It was, in large part, because Germany paid reparations for the Holocaust that it eventually became a respected and regional power.
The Armenian Genocide was a criminal act not only against the Armenian people, but humanity. The world community’s failure to work towards a just resolution continues to fuel instability in the region. The lasting impact of the genocide in Turkey, where Armenians continue to be killed because of their ethnicity and where Turkey blockades the country of survivors its predecessors sought to destroy, and the repeated failed attempts to “reconcile” Armenia and Turkey without confronting the genocide prove over and over again that there are no short cuts and covering up such a colossal crime does not bring peace. It is time for the international community to honor its commitment to “prevent and punish genocide” and work towards a just resolution.
1 Prior to joining the ANCA, Kate Nahapetian worked as an attorney litigating complex class actions. In addition, she worked as a Policy Analyst with the Community Relations Service of the U.S. Department of Justice, which mediates ethnic and racial conflicts. Nahapetian graduated magna cum laude with a degree in International Studies from American University and received a J.D. with a focus on international and human rights law from the University of California at Berkeley School of Law. Her publications include, “Confronting State Complicity in International Law” in the UCLA Journal of International Law and Foreign Affairs and “Selective Justice: Prosecuting Rape in the International Criminal Tribunals of the Former Yugoslavia and Rwanda” in the Berkeley Women’s Law Journal.
2 Permanent Court of Arbitration, Chorzow Factory Case (Ger. V. Pol.), (1928) P.C.I.J., Sr. A, No.17 at 29.
3 Bilefsy, Dan. “Seeking Return of Art, Turkey Jolts Museums,” New York Times, 30 September 2012.