20 May Political Recognitions of Genocides avant la lettre: the Case of the Armenian Genocide
[Dimitrios A. Kourtis, is a PhD candidate Aristotle University, Research Associate, Adjunct Lecturer, University of Nicosia.]
The Armenian Remembrance Day (24 April) marks the commemoration of the tragic events that took place against the Armenian population of the Ottoman Empire in 1915. The persecutions, massacres, forceful deportations, and attempts to terrorize the Ottoman Armenian communities have been classified as genocide by historians (see indicatively Dadrian, Akçam 2019/2018/2012, Bloxham, Hovannisian) and at least certain legal scholars (de Zayas, Garibian, Kielsgard) although not necessarily in an unambiguous way (a moderate approach was adopted by Prof. Schabas). On the other hand, the plurality of contemporary international law scholarship questions the possibility of applying the international criminal law of genocide in atrocities past. Thus, a great red line arises between the social/extra-legal concept of genocide and the crime of genocide sensu legale.
This distinction has been also described by the utilization of the term genocides avant la lettre (Bloxham/Moses), meaning atrocities that look a lot like genocide as prescribed under Article II of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted on 9 December 1948, but –given the fact that they took place before the adoption and/or the entering into force of the Convention (12 January 1951)– they cannot be properly considered as such, at least for the purposes of applying international criminal law (Lattanzi et al) or the law of state responsibility for internationally wrongful acts (Roscini).
The discussion on the proper historical and legal classification of the events in question has long shadowed bilateral relations between Turkey and the major proponents of the Armenian genocide recognition campaign, including Armenia and France. During the past few decades, several national and various international organizations, specialized NGOs (see IAGS Resolution of 1997, LDH Resolution of 1998), and other international actors, such as the Catholic Church (see also the 2015 affirmation), have recognized as genocide the atrocities committed in 1915 against Ottoman Armenians. Lately though, the question of addressing past atrocities became even more complicated, when –under the influence of the European Parliament recognition in 1987/2000 and the respective declaration of 85 PACE representatives in 2001– certain EU member states instrumentalized the Council Framework Decision 2008/913/JHA (2008) to suppress historical revisionism regarding genocides avant la lettre, and particularly the Armenian genocide.
The tug-of-war between the French legislature and the Constitutional Council of the state is pertinent to the situation described above. The French Senate and National Assembly attempted on various occasions to expand the criminal protection granted by domestic law against Holocaust denialism (Gayssot Lawof1990) to the cases of negation or trivialization of the Armenian genocide. This finally happened with the so-called Boyer Lawof 2011/2012, which the Constitutional Council (D. 2012-647 DC) declared unconstitutional based on the understanding that the provision was not ‘normative’, meaning it was not drafted in a manner safeguarding that the law expressed the volonté générale and arbitrarily singled-out a few incidents of genocide (those recognized by the French legislature) to grant them a surplus of legal protection employing the means and methods of criminal law. Contrariwise, the Belgian parliament, which recognized the Armenian Genocide in 1998/2015, despite the 2004-2005 and 2015 initiatives, decided not to extend its law on the criminalization of genocide denial to politically recognized genocides or genocides classified as such solely under domestic law (Law of 2019).
Leaving aside the discussion about the legality and/or necessity of criminalization, the French formula of conferring recognition through a legally binding instrument (including a law and a presidential decree) has found support in other domestic legal orders as well, including Greece and Cyprus. It should be pointed out that Greece can be considered a specially interested state, since it has developed its own agenda on genocides avant la lettre. To elaborate, on three separate occasions the Greek parliament adopted legislation commemorating the Pontic Greek genocide (Law 2193/1994), the Armenian genocide (Law 2397/1996), and the Ionian Greek genocide (Law 2645/1998). Thus, Greece has recognized that most of the persecutions of Ottoman Christian communities (save for the Chaldeans-Assyrians, who are also raising a claim for recognition) at the beginning of the 20th century constitute genocides, at least in the realm of domestic law.
A direct consequence of the said legislation is that, as per Greek law against hate speech, denials or trivializations of atrocities recognized as international crimes, inter alia, though laws or resolutions adopted by the national parliament, are considered crimes sanctioned with imprisonment and financial penalties. Moreover, Greece though a statement dated 22 May 2019 called upon Turkey ‘to recognise events such as the genocide of the Pontian Greeks so that the darkest moments of the past are not repeated and in order to heal the deep wounds left behind’. This démarche took place during 2019, a year that marked the centenary since the beginning of the final phase of the atrocities committed against the Pontic Greeks; the Greek declaration came as a response to Turkish protestations presented in a statement dated 21 May 2019, which strongly criticized Greek remembrance initiatives. This exchange has been repeated recently in almost identical language (see here and here).
Other countries chose to recognize the Armenian genocide not by adopting legally binding instruments, but through statements conferring the so-called ‘political recognition’. The political formula aims to satisfy claims and demands on recognition and international affirmation without establishing legal obligations for the recognizing state. Although, this is ultimately an exercise in legal formality consubstantial to the idea of legal positivism, political recognitions have been widely used to appease local lobbying forces and make a moral argument against atrocities past. In this line, the statement issued on 24 April 2021 by the President of the United States on the Armenian Remembrance Day is highly indicative. More generally, the question of the American position vis-à-vis the Armenian genocide is a complex one. To begin with, US Administration has referred to the 1915 events as genocide both before the ICJ (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Written Statement p. 25) under President Truman and while commemorating the Holocaust (Proclamation 4838 of 1981) under President Reagan. However, in both instances the question of the Armenian genocide was mentioned in the sense of an obiter, lacking an official recognition in casu. On the contrary, the statement of 2021, although carefully drafted, brings about a definite affirmation of the Administration’s position towards the 1915 events. It uses the g-word and makes reference to the basic precepts of the Armenian narrative regarding the sequence of atrocity events.
Even so, prima facie the statement does little to nothing in terms of applying the international law of genocide to the Armenian case. However, an alternative reading might be possible. There is no need to explain that state practice is important for both the subsequent application and interpretation of an international treaty (Article 31(3)(b)/(c) VCLT) and the formation of customary international law (see e.g. the ILC’s 2018 Draft conclusions). As pointed out by the ILC in its Draft conclusions on the identification of CIL, such state practice might take the form of legislative instruments and/or declarations of individual states, which are also important for inferring opinio juris. Consequently, the question we need to ask ourselves when studying several political and legal instruments affirming that the 1915 events constituted genocide is whether these or similar state acts can produce at least minimal effects in the realm of international law. An obvious consequence would be the retrospective application of the relevant treaty law. However, the possibility of applying retrospectively the Genocide Convention has been discussed by both scholars (see Schabas, Tomuschat) and specialized institutional actors (ICTJ); the general understanding is that such a development goes against the principle of legality and the general international law’s principle of non-retroactivity as mirrored in Article 4 VCLT. Nevertheless, there is a possibility that those instances of state practice might have some indirect legal effects under the international customary law of genocide.
To paraphrase Prof. Ambos, genocide is ultimately a legal term. When states employ that kind of parlance whether in foro domestico or at the international level, they tend to be mindful of the normative significance of the word. Currently 30 states recognize the Armenian genocide as such; all relevant state actors (save for the Vatican) are also state parties to the Convention and some of them have used genocide as a normative concept to address atrocities of the past (e.g. Greece, Poland, Lithuania). Certainly we cannot argue that when a state uses the g-word it definitely aims to produce legal effects, but turning a blind eye to the fact that the terminology is used in both historical and legal contexts to refer to the 1915 tragedy pays lip service to the study of the phenomenon in contemporary international law. For instance, President Biden’s statement is full of historical connotations that may have a certain legal significance. The reference to the Ottoman Empire and the pre-republican toponym of Istanbul (Constantinople), while serving the political purpose of dissociating the recognition from modern-day Turkey, still highlights the factual and the socio-legal background of the genocidal events.
To elaborate, both in scholarship (see Verdross, Lauterpacht, Öktem, Avedian, Dumberry) and in jurisprudence the fact that Turkey is the successor state of the Ottoman Empire has been established, at least to a certain degree. Relative sources tend to highlight the Ottoman Public Debt award of 1925 and a 1926 judgment of the District Court of Amsterdam in Roselius and Company v. Karsten. Moreover, the same conclusion was reached by the arbitral tribunal in the Lighthouses case between France and Greece in 1956. In recent practice, the recognition of the Armenian genocide intertwines references to the Ottoman Empire and contemporary Turkey, while the use of historical toponyms is also attested (see for instance the Portuguese parliamentary resolution of 2019 or the German Bundestag’s motion of 2016). Such historical indicators may be used to ground the genocide claim in context, showing that it deals with a set of atrocity crimes committed by state actors in a given sociological and historical framework.
Unlike the claim of Herrero and Nama communities in Namibia where the term ‘genocide’ is used in a non-legal historical and political context (at least according to Germany), the Armenian case has more historical (Lemkin, Cooper) and socio-juridical links to the crime of genocide. As already known, the 1919 Majority Report of the Commission of Fifteen (Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties) used the Martens clause in an attempt to provide legal justification for international prosecutions. Moreover, the respective provisions of the 1920 Treaty of Sèvres (Article 230), and ultimately the fact that at least some of the alleged crimes concerned were amnestied by a multilateral declaration appended to the 1923 Treaty of Lausanne, may support the argument that even when the crucial facts of the case took place, the crimes committed where at least of international concern. This proposition can possibly be reinforced, when we consider the Tripartite Declaration of 1915 or even the Istanbul trials of 1920-1921, given the fact that the Interwar international legal order failed to deliver the promise of international prosecutions, promoting national trials instead (see Balint in Heller/Simpson).
If we are to accept that even during the period of perpetration the atrocity crimes described today as the Armenian genocide were of international concern, we may be able to link them to the general category of crimes against humanity, which seemingly included (what we currently understand as) the crime of genocide, even before the adoption of the 1948 Convention. The fact that ‘pre-conventional genocide’ should be understood as a crime against humanity can be verified to a certain extent by several statements of the prosecutors in Nuremberg (2 TMWC 44-45 & 2 TMWC 60), the Justice trial before the US Nuremberg Military Tribunal, the early postwar jurisprudence of the Supreme National Tribunal of Poland (Trial of Hauptsturmführer Amon Goeth VII LRTWC 1, Trial of Gauleiter Artur Greiser XIII LRTWC 70) and, at least indirectly, by the trial of Eichmann before the District Court of Jerusalem. Once this normative genealogy of genocide is understood, then we might be able to reassess the historical connotations of political recognitions, including the recent statement of President Biden.
Arguing that the events of 1915 can be classified as genocide, within the framework of a political recognition, may also be seen as an attempt to apply the concept nowadays legally understood as genocide to its own normative predecessors, i.e. the crimes perpetrated at the beginning of the 20th century in the Ottoman Empire, which paved the way for the establishment of genocide as a crime under international customary and treaty law. Thus, without applying retroactively the Genocide Convention, we might start to discern an emerging trend of state practice regarding the legal title of the descendants of victimized communities to use the g-word solely as a way of redress for their ancestors’ predicaments. The remedial attribution of this classification can be contested of course, since international criminal law’s typologies are specific legal categories used to attribute responsibility and not to remedy past wounds. However, denying that states acknowledge the right of Armenians to use the g-word to describe the persecutions and massacres of 1915 through political (and sometimes even legal) recognition, and limiting the whole debate exclusively in the realm of history, fails to address the fact that states are not historians and their statements do not usually focus purely on history.
Finally, we need to remain cognizant of the fact that certain states, including the United States, dissociate the political recognition granted with further references to the international law of genocide and/or the Genocide Convention. This situation is usually considered as proof of the non-legal and purely political nature of such acts. The argument in question is very sound when dealing with recognitions coming from domestic actors, which (based on the orthodox account of positivism) are unable to produce legal effects in international law, like local parliaments in federal states or NGOs. However, for actors which can validly bind their respective states internationally and contribute to the creation of international customary law (including Heads of states and governments, high-ranking governmental officials, and national parliaments) such a mono-dimensional approach might be considered over-simplistic, especially as more political and legal recognitions are granted.
Additionally, when states use already established legal jargon to address political or moral questions, they tend to be more reserved or explicitly declare the non-legal character of the term employed, as in the case of Germany vis-à-vis the Herero and Nama genocide claims (even so, Germany and Namibia have seemingly reached an agreement on reparations for the atrocity crimes committed, regardless of their proper legal classification). In the case of the Armenians similar statements, including President Biden’s political recognition, use the g-word without such an explicit caveat. Moreover, in most cases, including the 2021 US statement, the granted recognition is coupled with two major obligations, i.e. the duty to prevent genocide and the obligation to remember the victims of genocide. More importantly, these two obligations are linked almost in an existential manner with the classification of the past atrocity as genocide, thus indirectly limiting the scope of the recognition.
Based on the text and the context of the existing statements conferring recognition to the genocide claim of the Armenians, we might argue that states are using the established avenues of practice to surpass the legal constraints of the Genocide Convention (impeding the Armenians’ genocide claim) and thus classify as genocides certain atrocities that pertain to the legal and historical category of crimes-predecessors to the crime of genocide. By doing so, they choose to limit the granted recognition in its temporal scope (early 20th century atrocities committed in the Ottoman Empire) and in its consequences (non-repetition, respect of the memory of victims). As a result, such recognitions might entail a re-shaping of how we understand the concept of genocides avant la lettre moving the epicenter of the debate from the nullum crimen nulla poena principle of international criminal law to the protection of the victimized communities’ moral status through a limited and remedial in its nature recognition of their genocide claim. Of course, whether such a tendency will gain momentum or even modify existing international legal rules, although highly unlikely, remains to be seen.