The 1915 Genocide : who can legally represent Armenians?

If the claims made by Armenians on Turkey in relation to the 1915 Genocide are to be discussed, we should determine who can legally represent them: Should it be the Republic of Armenia? Or the Armenian Diaspora – who is not a legal entity? Or the descendants of the victims of the Armenian Genocide – in Armenia and the Diaspora?

Rodney Dakessian, a Lebanese judge and Doctor of Public Law with a PhD on « The legal effects of mass murder of Armenians in 1915 and their possible ways of judicial and extra-judicial resolution, » tries to offer some answers to those issues. He examines the legal status of Armenia, its interest in bringing the case to court, and its right to call on Turkish responsibility in the case of the Armenian genocide. He argues that even if Armenia did not exist as a State at the time of the 1915 massacres, international law could allow its asking for reparations from Turkey, the country he sees as being responsible, at least morally, for the genocide of Armenians.

The Soviet Republic of Armenia, which covered only a small portion of the historical land or Armenia, was instituted on 20th November 1920. Almost five years had passed since the killings had started, and two years after the completion of the campaigns of destruction which ravaged the Ottoman Armenian community. Armenia reached its total independence on 21st September 1991.

Given that the Armenian State did not yet exist when the crimes were perpetrated, the first question coming to mind is whether Armenia is entitled to bring the matter to Court, and legally qualifies for the right and legal interest to undertake an action for damages.

On the other hand, the obligation to redress any breach of law is implied within any legal rule with automatic force. This has been established by the Permanent Court of International Justice in the following statement: “The Court observes that it is a principle of international law, and even a general conception of law, that the breach of an engagement involves an obligation to make reparation” – an obligation to make reparation “in an adequate form,” as was specified earlier on in the same case. These principles apply to States as well as to international organizations.

As regards States, Article 31 of the text drafted by the International Law Commission specifies that “the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.” This statement of a well-known rule has been firmly and consistently reasserted by case law.

A. Entitlement to invoke Turkish responsibility in the case of the Armenian genocide

The international society is characterized by a high degree of non-centralization. Unlike what happens in a State, there is no central authority able to prosecute a State or an international organization that has been found responsible of international wrongdoing.

True, the United Nations are endowed with coercive powers which can ultimately be used to force a State to fulfil its obligations in terms of responsibility. However, it is not done within the framework of legal responsibility; the purpose is to maintain international peace and security.

Article 48 of the draft written by the International Law Commission acknowledges that: “A state is entitled as an injured State to invoke the responsibility of another State if the obligation breached is owed to: … (b) … the international community as a whole.” This clause concerns, but is not limited to, the grave violations of obligations related to peremptory norms of general international law and, mostly, violation of erga omnes (towards all) obligations.

However, the Armenian State did not exist at the time the crime perpetrated.

[repetition du §1] Massacres have been committed against Armenians living in the Ottoman Empire. So, standing at the present time, which State is entitled to claim the rights of victims? Is it Armenia, and why?

As per the theory of erga omnes obligations, it can be said that any State is entitled to claim the protection of the international order and to react against war crimes, crimes against humanity and genocide crimes.

The 1948 Convention on prevention and repression of the crime of genocide is a peremptory norm of international law, which creates erga omnes obligations. Violation of obligations attached to this norm entitles any State to the right and legal interest to protect these rights and obligations. However, and according to the terms of enforcement of “diplomatic protection” principles, victims must be citizens of the State itself and have its nationality. This has been confirmed by the International Court of Justice in the case of the Barcelona Traction, in 1970. In other words, the State can only exercise its diplomatic protection over its nationals – i.e. any natural or legal person connected to it by a bond of nationality, or matriculation in the case of ships, airships, rockets and satellites. This bond enables the State to assert its personal competence, a prerequisite to the exercise of diplomatic protection.

Whereas in the present case, victims of the 1915 crime are not citizens of the Armenian State since, as mentioned above, the Armenian State did not exist at the time the crime was committed.

However, and according to case law, this principle can only apply in commercial and financial matters, and not in the case of grave international crimes and violations of obligations pertaining to peremptory norms of general international law.

Therefore, the situation changes if we face a State violation of an obligation to respect erga omnes – i.e. of all the other subjects of the international legal order.

A State has the right to exercise protection upon the victims of a genocide who are connected to it by an obvious, legal, religious or ethnic bond. And this link does exist for the Armenian State, all the more so that the crime victims were Ottoman Armenians – that is people who spoke Armenian, wrote in Armenian, ran Armenian schools, had an Armenian culture as well as their own churches, convents, houses and other buildings.

An actual example of this procedure is the case of Adolf Eichmann, who stood trial in front of an Israeli court on 11th April 1961, as the Court asserted Israel’s right to judge and exercise the protection principle over Jewish “citizens” massacred by the Nazi regime in 1942.

Armenia is similarly connected to the victims of the 1915 crime by an efficient ethnic, religious, linguistic and cultural bond. Moreover, many of the descendents of victims of the genocide are Armenian nationals, and Armenia thus possesses the quality and legal interest – per Articles 42 and 48 of the text produced by the International Legal Commission – entitling it to an action for damages. And this action can only be undertaken at official level, through the Armenian State itself.

B. Legality of territorial claims and effects of possible Turkish recognition

The notion of crime against humanity is found implicitly in Article 230 of the 1920 Sèvres Treaty which required 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 Ottoman Empire on August 1, 1914."

The Sèvres Treaty, named after the town in the West suburb of Paris, was signed on 10th August 1920, two years after the end of World War I. It was a peace treaty between the Allies – France, Great-Britain, Italy and Greece – and the Ottoman Empire (Sultan Mehmed VI) under the aegis of the League of Nations, which was never ratified by all the signatories, but clearly established the territorial rights of Armenia.

However, although the Sèvres Treaty was never enforced, it did state the perpetration of a common law crime punishable by any State, and the universal character of its condemnation in national law make is possible to assert that it belonged to the “general principles of the law” (Art 38 §1,c in the Statute of the International Court of Justice,) applicable to all States.

However, it should be mentioned that the Turkish recognition of the Armenian genocide would in no way mean a right to territorial reparations, considering the various legal and case law obstacles to an acknowledgement of Turkey’s responsibility, which will therefore remain purely moral. Turkish acknowledgement will most probably be limited in its contents and phrasing in a way that will not allow Armenians to stake territorial claims. Consequently, regarding Armenian territorial claims, it is advisable to rely on conventional international law and international case law, given that the 1920 Treaty cannot be applied because it was not ratified by the signatory parties.

As mentioned above, the obligation to repair all breach of the law is automatically implied in any rule of law. Concluding therefore that Turkey, as the continuation but not the successor to the Ottoman Empire, is responsible at least morally of the Armenian genocide, obligations will necessarily be attached. But what will be the nature of these obligations incumbent upon Turkey?

The first form of reparation recognized by international law is the restitution of things as they were orrestitutio in integrum. In our present case, it would be quite impossible to restore the situation in fact or law as it was before the crime perpetrated against Ottoman Armenians, particularly since the crime happened almost a hundred years ago.

There might be a possible procedure in this respect – the restitution of Armenian property – by appealing to the European Court of Human Rights, which will eventually be competent to examine claims from heirs to victims of the 1915 crimes and deportations. The case can be tried, particularly if the non-retroactivity principle of conventions and treaties is overcome – as per Art. 1 of Protocol 1 (protection of property) of the European Convention of Human Rights ensuring right to property, and given that violation of this right persists today, supported by Turkey’s denial, depriving the descendents of victims of their rightful inheritance.

Several decisions of the European Court of Human Rights are an encouragement to follow this procedure. In particular, the Loizidou vs Turkey case (N° 40/1993/445/514) deferred to the Court by the government of Cyprus (“requesting government”) on 9th November 1993, after Cyprus citizen Mrs Titina Loizidou had brought the matter to the European Commission of Human Rights (“the Commission”) on 22nd July 1989 pursuant to Article 25 of the Convention. The purpose was to obtain a decision as to whether the property deprivation of Mrs Loizidou came from a breach by Turkey of Art.1 of Protocols 1 and 8 of the Convention. The Court has ruled by judgment of 23rd March 1995 that Mrs Loizidou should be reimbursed after her properties were confiscated in 1974 and that she was expelled from her country and forbidden to return.

On the same subject – the restitution of Armenian properties – it should be noted that the United States have adopted a law, in 2004, concerning the damages experienced by foreigners, making American courts competent to judge cases of losses caused to non-Americans further to violation of the laws of nations or of a treaty of which the United States is a member. Therefore, a case could be made by heirs to victims of the Armenian genocide against Turkey in front of American courts if, of course, this law should be applied with retroactive effect, as indeed already happened in the United States.

A second form of reparation is compensation. Reparation of damages caused to Ottoman Armenians by the 1915 crime could naturally take the form of compensations. Given that restitution, as was seen earlier, is almost impossible, reparation by equivalent property or compensation might be more thinkable in the case of the Armenian genocide. Let us take, as a similar and effective example, the case of the Holocaust perpetrated by Nazi Germany against the Jews. German companies are still paying indemnities to the Jewish community, and these reimbursements could be put forth as legal precedents for the “Armenian question” – only, of course, if the International Court of Justice accepted to apply the 1948 Convention with retroactive effect.

The last form of reparation known in international law and which seems the most adapted and applicable to our current case is satisfaction. It is a mode of reparation that is purely moral consisting, for instance, in remorse expressed or apologies presented by the responsible State.

In our eyes, satisfaction and compensation seem to be the most logical and achievable means of reparation. All the more so that satisfaction has already been the object of a long debate in the case of the “Armenian question.” Armenians have ceaselessly asked for apologies on the part of Turkey for the 1915 crime, but so far to no avail.

In consequence, satisfaction appears as a very essential and paramount issue in the case of the Armenian genocide.

Rodney Dakessian

Beirut, 10-November-2014