Faculteit Rechtsgeleerdheid Universiteit Gent Academiejaar 2016-2017 “Legal Claims for the Armenian Genocide” Masterproef van de opleiding ‘Master in de rechten’ Ingediend door Nadya Movsisyan (01103299) Promotor: Prof. dr. Tom Ruys Commissaris: Hofer Alexandra 1 2 Acknowledgements Firstly, I would like to thank my promotor Prof. dr. Tom Ruys for giving me the opportunity to work on a subject so close to my heart and guiding me through the entire process. I would also like to express my gratitude towards Dr. Rouben Adalian, Director of the Armenian National Institute in Washington D.C., for granting me access to the rich library established by the Armenian National Institute and for mentoring me during my internship at the Armenian National Institute. Further, I would like to thank my parents for giving me the chance to do something I love and my siblings for their support. As a Belgian citizen with an Armenian background, I have always been very interested in the history of my ancestors. The Armenian Genocide is a big stain in the Armenian history. My interest in this matter grew after visiting the homeland of my ancestors, set in current Turkey. I had never expected that my visit to Eastern-Turkey would leave such an impact on me and would influence my interests and goals with regard to my future career. As a law student, I had difficulties accepting that Turkey not only remained unpunished for its crime, but also continued to enjoy the fruits of its crime. This journey made me see the Armenian Genocide in another perspective, the legal consequences of the Armenian Genocide. 3 4 Content Table 1 Introduction 7 2 Historical Background 9 2.1 Social and Political Situation in the Ottoman Empire (19th – early 20th Century) 10 2.2 Humanitarian Intervention by the European Powers 10 2.3 The Rise of Armenian Nationalism 11 2.4 Consequences for the Armenians after the Rise of the Ittihadists 11 2.5 The Atrocities against the Armenians (1915-1917) 13 2.6 The Harms Inflicted upon Armenian victims 15 2.7 Conclusion 17 3 Relevant International Law and Practice 19 3.1 The Preliminary Treaty of San Stefano & the Treaty of Berlin (1878) 19 3.2 Turkish Court Martial (1919-1922) 20 3.3 The Peace Treaty of Sèvres (1920) 22 3.4 The Peace Treaty of Lausanne (1923) 24 3.5 The Origins of the Word ‘Genocide’ and the Legal Notion 25 3.6 Legal Notion: Crime against Humanity 28 3.7 The Beginning of International Prosecution of War Crimes 29 3.8 The Nuremberg Trials (1945-1946): Reparation after World War II 30 3.9 The Convention on the Prevention and Punishment of the Crime of Genocide (1948) 31 3.9.1 CLOSER DEFINITION OF THE CRIME OF GENOCIDE: GENOCIDAL INTENT 32 3.9.2 CLOSER DEFINITION OF THE CRIME OF GENOCIDE: MATERIAL ACTS OF GENOCIDE 33 3.9.3 PROSECUTION FOR THE CRIME OF GENOCIDE 34 4 Case-study: Reparation for the Armenian Genocide 37 4.1 Internationally Wrongful Acts? 37 4.1.1 VIOLATION OF THE TREATY OF BERLIN? 37 4.1.2 VIOLATION OF THE TREATY OF SÈVRES? 39 4.1.3 VIOLATION OF THE TREATY OF LAUSANNE? 39 4.1.4 VIOLATION OF THE GENOCIDE CONVENTION? 40 4.2 Are the Internationally Wrongful Acts of Individuals Attributable to the Ottoman Empire 48 4.2.1 STATE SUCCESSION: THE REPUBLIC OF TURKEY AS SUCCESSOR STATE? 52 4.3 Forms of Reparation- Under ILC’s Articles on State Responsibility 54 4.3.1 RESTITUTION 55 4.3.2 COMPENSATION 56 4.3.3 SATISFACTION 59 4.3.4 CONCLUSION 62 4.4 Individual Applications under the European Convention on Human Rights 63 4.4.1 VIOLATION OF ARTICLE 2 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS? 70 4.4.2 VIOLATION OF ARTICLE 3 OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS? 73 4.4.3 CONCLUSION 76 5 Conclusion 77 6 Samenvatting 79 7 References 83 5 6 1 Introduction “Your sad holocaust is engraved in history, and nothing shall purge your death from our memories, for our memories are your only grave.” Venice, written by a French soldier for the victims of the Armenian Genocide International law can only be effective if it is applied in a consistent manner. This paper deals with the reparation for a historical fact, namely the 1915 Armenian Genocide. I decided to write my masters’ thesis on this question, for I was stunned on how insufficiently this matter has been studied throughout the years. The atrocities committed against the Ottoman Armenians in 1915 are recognized as a genocide today. This is a fact, confirmed by the international community. The reason why the legal consequences have stayed out, is still subject to discussion. Besides its importance for the Armenian community, the matter remains relevant on a global level as well. For the concept of ‘furthering peace’ to be of any value, responsibility for crimes as the crime of genocide and crimes against humanity have to be pursued. The obligation to investigate gross human rights violations serves the fundamental public interests by allowing the nation in question to learn from its history and combating impunity. What is examined herein is whether the existing arsenal of legislation can provide a sufficient basis for reparation claims for the Armenian Genocide, more than a century later. In what follows is a study on various aspects of the Jewish Holocaust, the Screbrenica Genocide and the Rwandan Genocide. I notice that the factual circumstances of the previous genocides display striking similarities with the Armenian Genocide. However, only the Armenian Genocide has been extensively debated. This raises the question whether the Armenian Genocide is rather a political issue? For the legal analysis, I will examine International Law, including Peace Treaties of the early 20th century, and post-World War I Turkish court-martial cases regarding punishment of the perpetrators of the 1915 massacres and deportations of the Ottoman Armenians. Secondly, it is relevant to study the modern International law legislation, in particular the Convention on the Prevention and Punishment of the Crime of Genocide, and jurisdiction on the crime of genocide. After processing this wide set of information, questions regarding the retroactivity of the Genocide Convention, in particular in light of its applicability in relation to the case under study, came up. Of course, I will also have to examine whether the current Republic of Turkey can be confronted with acts committed by the former state of the Ottoman Empire. This led 7 to the question whether the current Republic of Turkey continued the international legal personality of the Ottoman Empire? To present a comprehensive study, this paper is built up out of three parts. As this 1915 massacre is a historical fact, that has taken place multiple generations before, it is necessary to include its factual background information. In a next part, an overview of relevant legislation is presented with a focus on the Convention on the Prevention and Punishment of the Crime of Genocide. A legal analysis will then be performed based on the existing arsenal of legislation in order to investigate whether it could provide a good foundation for the case under study, namely reparation for the Armenian Genocide. 8 2 Historical Background This first chapter thus gives a historical overview of the situation in the Ottoman Empire in the early 20th century. As this paper deals with an event, that has taken place over a century ago, it is necessary to outline the situation at that time in order to acquire insight in the matter from a historical point of view. In what follows, I will present the atrocities perpetrated against the Ottoman Armenians by the Ottoman rulers starting from the end of the 19th Century and what exactly triggered these events. In the late 19th century, the European Powers foresaw humanitarian intervention in Ottoman Turkey with the purpose of convincing the Ottoman government to adopt statutory provisions granting equal rights to non-Muslim minorities (such as the Armenians).1 The first time the problem of the Christian-Armenian minorities in the Ottoman Empire received international attention was at the Berlin Conference, ending the Russo-Ottoman War, of 1877-1878.2 Previous attempts at international level were taken to address the problem of the Christian Armenians in the Ottoman Empire, the Armenian population was discriminated and subjected to among others; plundering, burning, murder, criminal behavior of government officials, looting, and tax irregularities. In 1870, the Armenian Communal Council prepared a report and confronted the government with these problems.3 At the time of the Russo-Ottoman War, the Armenian population sought protection from Russia. A provision was concluded in the 1878 Preliminary Treaty of Peace between Russia and Turkey, providing that Russia had to fulfill the role of supervisor over the Armenian provinces in the Ottoman Empire. The other Great Powers supported the protection of the Armenian minorities in the Ottoman Empire as well.4 Despite these efforts to ameliorate the situation for the Armenians, the Ottoman government never intended to enforce these rights, they merely adopted it to please the Europeans. The European Powers also did not demand the enforcement of the statutes. However, the Armenian population called on the implementation of these provisions. The Muslim majority in Ottoman Turkey considered the new Armenian nationalism as a problem, even a threat, which ought to be solved. The Hamidian Massacres of 1894-1896, preceded the Armenian Genocide, resulted in the murder of 80.000 to 300.000 Armenians.5 Sultan Abdul Hamid II feared the collapse of the Ottoman Empire due to “the endless persecutions and hostilities of the Christian world.”6 The Armenian villagers of Sasun revolted against the Hamidian rule to pay taxes to the Kurds in addition to their contribution to the Ottoman government.