In this article it is attempted to provide brief answers to some international legal issues concerning the Armenian Genocide. In particular, whether the Armenian Genocide was a crime under international law, Turkey’s responsibility for committed crime and the opportunity to appeal to the International Court of Justice.

Genocide is a severe crime under international law, the purpose of which is the systematic destruction of all or a significant part of a racial, ethnic, religious or national group. Genocide excludes the most importatnt fundamental and natural right of an entire group of people - the right to life.

The UN Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter - Genocide Convention) entered into force on 12 January 1951 giving accurate evaluation and formulation to the crime of genocide. Massacres and forced deportation of Armenians committed by the Ottoman Empire at the begining of the 20^th century are in full compliance with the determination of the genocide crime by the Genocide Convention and contains all the elements of the offence. There are thousands of documents, eyewitnesses and other evidence, therefore, this article will not refer to the facts.

Understanding the weakness of the historical counterclaims, today’s defenders of the organisers of the Armenian genocide try to move their viewpoint from the historical level to the legal level with formal arguments. They argue that the crime committed against the Armenian people cannot be qualified as genocide, because there was no concept of genocide during its implementation, and its punishment was formed only by the Genocide Convention. They justify their opinions by the well-known legal principle that “the law has no retroactive force” and that the Genocide Convention does not cover the events before its entry into force. Therefore, “Nullum crimen, nulla poena sine praevia lege poenali” (no crime, no punishment without a pre-existing penal law).

Not doubting the above mentioned principle, it is important to note that one of the main legal sources of international public law is international custom[1], which is a non-written form of law and for its existence acceptance of the practice as obligatory (“opinio juris sive necessitatis”) is required.

In this regard, the Joint Declaration of France, Great Britain and Russia made on May 24, 1915 is an explicit evidence of the existence of “Opinio juris” during the commission of the crime and has a special importance.

According to the Declaration: “For about a month the Kurd and Turkish population of Armenia has been massacring Armenians with the connivance and often assistance of Ottoman authorities. Such massacres took place in middle April (new style) at Erzerum, Dertchun, Eguine, Akn, Bitlis, Mush, Sassun, Zeitun, and throughout Cilicia. Inhabitants of about one hundred villages near Van were all murdered. In that city Armenian quarter is besieged by Kurds. At the same time in Constantinople Ottoman Government ill-treats inoffensive Armenian population. In view of those new crimes of Turkey against humanity and civilization, the Allied governments announce publicly to the Sublime-Porte that they will hold personally responsible [for] these crimes all members of the Ottoman government and those of their agents who are implicated in such massacres”[2].

Thus, the adoption of this joint declaration has crucial value, as the international community, represented by the main world powers of that period of history, who won World War I, confirmed that massacres and forced deportation of Armenians organised by the Ottoman Empire are an international crime in accordance with the international law of that period of time and hereby created the legal basis for the responsibility of the Ottoman Empire and its successor Turkey for that international crime. For the correct evaluation of this declaration, it is appropriate to compare it with the similar declaration, of the winners of World War II - Soviet Union, United Kingdom and USA - signed during the Moscow Conference on November 1, 1943[3], which became the legal and political basis for all the processes which resulted in responsibility of Germany for the “Holocaust”.

Moreover, Turks themselves have admitted the fact of the crime in time: Turkish courts-martial of 1919-20 sentenced the organisers of the Armenian genocide to death[4] finding them guilty for the policy of destruction of the Armenian people. Turkish officials of that time admit: “To this last extent, the Turkish people bow its head. It does so in grief for the Armenian people and shame for itself”[5].

Turning to the Genocide Convention again, it is essential to note that it does not formulate a new crime, but it gives the exact term and definition of the international crime against humanity already existing in international law. The Genocide Convention is nothing else but the codification of the existing international custom.

Insisting that genocide had not been an international crime before the Genocide Convention, not only the Armenian genocide as an international crime is questioned, but also the “Holocaust”. In case of such viewpoint, the legality of the Nuremberg trials of 1945-1946, the responsibility of Germany for the “Holocaust” and the fact of this international crime are also questioned, which are recognised and accepted by the whole international community, including Germany, which beared responsibility.

The author of the term “Genocide” Raphael Lemkin did not invent the crime of genocide, but has just created a term describing one of the international crimes againt humanity and separating it. For the first time this term was used by Lemkin in his Axis Rule in Occupied Europe: Laws of Occupation - Analysis of Government - Proposals for Redress (1944)[6]. Lemkin called genocide a crime without a name[7].

The first official document which used the genocide term was the indictment represented on 18 October 1945 in Nuremberg trials[8]. But neither in the Nuremberg Charter, nor in the judgment was the term genocide used for the “Holocaust”; the term used was “international crime against humanity”, which was used also for the Armenian genocide in 1915.

Afterwards, the term genocide was approved by Resolution 96/1 of 11 December 1946 of the UN General Assembly, the Genocide Convention and other international documents.

Thus, the crime of genocide, which was involved in the term of crime against humanity, was distinguished by the Genocide Convention and gained special legal term. The preamble of the Genocide Convention states that the convention is agreed “Recognizing that at all periods of history genocide has inflicted great losses on humanity”. So it is presumed that the term genocide (not the Convention itself) is applicable also for the crimes that were committed before the Genocide Convention. At this point the UN Human Rights Committee states in one of its reports: “the word ‘genocide’ is a comparatively recent neologism for an old crime”[9].

By stating that the Armenian genocide is recognised as a crime against humanity, it becomes rightful raising the issue of the responsibility of Turkey as a successor of the Ottoman Empire. Two types of responsibility are defined for the international crimes by the international law: international legal responsibility and criminal responsibility. The criminal responsibility refers to the responsibility of a physical person for the international crimes. As already mentioned, Turkish courts-martial sentenced the organisers of the Armenian genocide to death.

The international legal responsibility or state responsibility is considered as unfavourable legal results for the the subject of the international law in case of violating the norms of international law and its obligations.

Turkey is the successor of the Ottoman Empire in accordance with the state succession rules of international public law. Moreover, Turkey is recognised as the successor of the Ottoman Empire according to the verdict “Arbitration of Ottoman debt”[10]^, [11], thus it is considered as the subject of international responsibility for the Armenian genocide.

The responsibility for the Armenian genocide should lead to re-establishment of the legal situation existing before the crime, including by limiting the sovereignty of the responsible country. Although there is no concept of territorial responsibility in international law, the territorial claims have legal bases. The rights of Turkey were recognised in all the territories populated with Turks by the Agreement of Moscow in 1921 and the Agreement of Kars signed in pursuance of the latter in the same year. The region of Kars and the province of Surmalu, which were not territories of Turkey at the time of the commission of the Armenian genocide, were populated with Turks just as a result of the Armenian genocide. Thus, by recognising that the Ottoman Empire committed a crime against humanity, Turkey, as the successor of the Ottoman Empire, will be obliged to assume responsibility and to re-establish the legal situation existing before the crime, to eliminate all the results of the Armenian genocide.

In the articles on the responsibility of the states developed by the UN International Law Commission it is defined that the country responsible for the internationally wrongful acts is obliged to provide a complete reparation for the damage caused as a result of the internationally wrongful acts. The damage includes any loss caused by the wrongful act, both material, and moral. As per Article 34 of the articles on the responsibility: “Full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination, in accordance with the provisions of this chapter”[12].

The restitution is the reparation with re-establishment of the situation which existed before the wrongful act was committed. In the case of compensation, there is obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The compensation shall cover any financially assessible damage including loss of profit insofar as it is established. The satisfaction is considered as moral responsibility, which can be expressed by recognising the offence, regret, officially apologising or in other similar way.

Turkey, as a successor of the Ottoman Empire, will be obliged to compensate for all the damages caused, as Germany does so far by compensating the Jews for the “Holocaust”.

Today there is a real chance for the Armenian party to initiate raising the issue of Turkey’s responsibility in the UN International Court of Justice. According to Article 36 of the Statute of the UN International Court of Justice: “The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force”. Article 9 of the Genocide Convention stipulates that “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute”. The Genocide Convention has been validated by Turkey and Armenia without any reservations. The UN International Court of Justice can solve the question of Turkey’s responsibility based on the demands and arguments of the parties, as well as the legal and actual basis of the latter.

Yuri Barseghov, a scientist with Armenian roots, an international law expert, professor, a researcher on the Armenian genocide, who has been a member of the United Nations’ International Law Commission, writes the following lines regarding this opportunity: “The Republic of Armenia, as an autonomic state, has a unique opportunity to proceed regarding Turkey’s responsibility for the Armenian genocide unilaterally in the UN international court, based on Article 9 of the Convention about Genocide prevention and punishment”[13].

Furthermore, another way of raising the issue of the Armenian genocide in the UN Court of Justice is a Request for Advisory Opinion, but all the proceedings and possibilities of applying to the UN Court of Justice shall be subject to additional studies.

The alternative to a judicial solution is that Turkey itself recognises the Armenian genocide, whereupon items regarding responsibility will have to be solved in direct negotiations between Turkey and Armenia, taking into account the legal rights and interests of the parties. As a result of the negotiations the question of responsibility may be solved with the help of a certified international agreement, which will be a result of the parties’ free will expression agreement (compromise): the agreement shall regulate all the issues regarding responsibility, including the form and amount of responsibility. In this particular way agreements regarding the Jewish genocide were signed by Germany and Israel: these agreements formed the legal basis for the responsibility of Germany and the compensation it is still paying.

In any case, the best solution both for Turkey itself and for Armenia and whole humanity will be cancellation of refusal policy and reconcilation with his own past. Refusal of such horrible international crimes is intolerable in the modern world and may lead to further crimes as already proved by history, reminding the famous words of Adolf Hitler (approving Nazi crimes): “Who, after all, speaks today of the annihilation of the Armenians?”...

Vanik Margaryan, Partner of AM Law Firm, Advocate