Perhaps there isn’t a single Armenian who hasn’t heard the word “genocide” or hasn’t witnessed how the talks about who will pronounce the g-word and who won’t rise each year on the eve of April 24th. Still hardly any Armenian may explain what eventually the Armenians anticipate from the usage of word “genocide” - even if used by the US President, and in general what do the Armenians expect from the recognition of the Genocide. More than that, let’s say today’s Turkey agrees to describe all the violence, deportation and extermination committed towards Armenians in Ottoman Empire during the WWI with the term “genocide”. What’s then, what may follow to it, may there be reparations?
However there are Armenians, mainly in Diaspora, who are well-known specialists of international law, so they see the steps, court instances, results that may be available to Armenians beyond the emotional talks and claims. One of those specialists - and perhaps the most respectable and famous one - is Mr. Philippe Raffi Kalfayan. He is an International Legal Counsel, Associate Researcher and Lecturer of International Public Law at Paris 2 Pantheon-Assas University and at International Institute for Human Rights (IIDH) in Strasbourg. Mr. Kalfayan was in Yerevan recently for a discussion devoted to Armenian-Turkish relations, organized by the Embassy of France and the French University of Armenia.
THE JURIDICAL PATH
- Mr. Kalfayan, thank you so much for the opportunity of this interview. I asked this largely because your phrase that Armenia on its own can’t be a legitimate party to present demands to Turkey in relation of Armenian genocide had interested me. You tell something that is my own belief for long, but you tell it from the position of an international lawyer and therefore I’ve so many questions to you! Let me start with this one - what procedures does the current international law envisage for prosecuting the genocide crimes?
- I think first we should clarify couple of realities of the current international law system when it comes to prosecution of crimes - including the genocides, the crimes against humanity, the war crimes, etc. Here the important point is that the criminal law may be applied only towards the individuals. So for going through the criminal justice process, the individuals who allegedly committed the criminal acts should be available to the court for trial. Yet from the days of the Armenian Genocide an entire century has passed and no criminal or perpetrator is alive.
- I’m sorry but the leaders of Ittihat - or the Ittihat ve teriyaki, to be absolutely precise with their name - had been tried at an Ottoman court for their crimes, including for the crimes and atrocities committed against the Ottoman Armenians. Doesn’t that fact matter, wasn’t it a legitimate court?
- No, the problem isn’t there. Indeed, it was a legitimate Ottoman court, simply the Ittihat leaders were not tried there for committing Armenian genocide. Number of charges was brought against them during that trial, including the allegation of mass murder of Christians. Yes, the Christians there were mainly the Armenians, Greeks and Assyrians, but this loose and broad formulation “murder of Christians” doesn’t necessarily define the committed crime as genocide or determine the fact of genocide.
- Thanks for the clarification, it’s important to apprehend it. But then how this genocide fact may be proved?
- It is not necessary to prove the genocide to get reparations for it. Actually, the qualification of crimes does not condition the reparations nature and scope. This one hundred years distance leaves essentially one option for obtaining justice - it’s to follow the path of reparations case by establishing that severe wrongful acts, internationally prohibited at the time of their commission, the responsibility of which are attributable to Ottoman Empire and then demanding from Turkey to satisfy its obligation of reparation. The judicial fora are very limited for that legal scenario: it is the UN interstate court: the International Court of Justice.
- Is it different from the ICC?
- Sure, it’s different. The ICC (International Criminal Court) was founded in 2002 - the Rome Statue establishing this court was signed in July 1998, but came into force in 2002 after its ratification by the required quota of countries. This court is authorized to consider only the cases that occur after its entry into force. This is criminal court and as said before, the criminal law is no longer applicable in the considered case. So it’s not an eligible court.
The eligible court, as said above is the International Court of Justice, abbreviated as ICJ. This is the judicial branch of the UN, established back in June 1945, and in fact the countries that join the UN and sign the UN Charter by that recognize the authority and jurisdiction of the ICJ. Only the states and specific UN bodies may bring a case before this court. The states may apply for contentious issues, when there’s a dispute between two states and they agree to accept any decision of ICJ. Another option is applying to ICJ for Advisory opinion and this may be done through the UN General Assembly or Security Council, or by any specialized institution authorized to do so.
- Do we have enough ground and argumentation to take a contentious case to ICJ?
- Yes, we have. We may argue that the Ottoman authorities breached those laws that were in force at that time, during and even before the WWI. Here may be cited the Hague Conventions from the late 19th century, that were violated by the Ottoman authorities in respect to Armenian civilians (Convention (II) with Respect to the Laws and Customs of War on Land. The Hague, 29 July 1899). The preamble provided that “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience. Ottoman Empire was a party to this treaty.
Even the Berlin Treaty of 1878 may be cited, because that treaty envisaged and the Ottoman Empire had the obligation thereof to protect the Armenian Christians (article 61), yet they didn’t.
However, there are technical obstacles: first, does Armenia as a State have a legal standing to call upon this court for settling a dispute relative to wrongful acts committed before its creation? The response is yes and no, but I don’t want to go into details about the solution envisaged. Second, I’m not sure that Turkey will be enthusiastic about taking the issue of Armenian genocide to ICJ as a contentious case. Moreover, it is very difficult to take a state before this court without its consent.
Yet, the option of applying to ICJ for Advisory opinion remains. The application may come through General Assembly or UN Security Council. Simply you may put one question before the ICJ. Some formulations of questions are currently under legal review.
- And what may be the result of all those legal efforts?
- The juridical path and procedures are important for determining and certifying the facts committed against the Armenians by the government of the Ottoman Empire and engaging the state responsibility of Turkey for the internationally wrongful acts, a preliminary to impose an obligation of reparation. For now the Turks do not agree with the term of genocide, but they accept almost all the committed crimes, although trying to justify it by the necessity of war circumstances.
The judicial process may enhance further accumulation of all kinds of evidence and data related to what happened to Armenians and to what scale and essence it mounted in its entirety. Ultimately it’s important to have whole genocide picture and story a...
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