Philippe Kalfayan: At the Intersection of Law, Justice and Rebellion
By Alin K. Gregorian
PARIS — For the past century, the recognition of the Armenian Genocide and the subsequent and appropriate punitive measures have been debated in various venues and communities around the world.
One of the most vital Armenian communities is in France, where the large and organized Armenian community has long had the support of the government.
Just this past week, the Upper Chamber of the Parliament passed a draft article criminalizing the denial of Genocides. The next step is for that bill to go to the Constitu-tional Court.
While many in France, the rest of the Armenian diaspora and the country of Armenia rejoiced at the news, one of the world’s top human rights and legal experts, Philippe Raffi Kalfayan, was not impressed.
“I would like to say that the law has very little chance to be accepted by the Constitutional Court if it is referred, because there are some other provisions [included in the draft but not related to the specific article] which are unconstitutional, because [they violate] the freedom of press and rights of journalists.”
The measure against denial of genocides, he said, is only one part of a major legal bill.
“We will see what happens when the whole law will be adopted,” he noted.
Kalfayan’s legal credentials are extensive; he is a lawyer and consultant with Stradev Conseils outside Paris, specializing in international law. In addition, he has served as an expert at the Council of Europe since 2003, and for the past 21 years, has been with the International Federation of Human Rights Leagues in France, with the French acronym FIDH, in different capacities, including as secretary general. He is currently studying toward his doctorate in law, as well as teaching.
For Kalfayan, neither the recognition of the Armenian Genocide nor the subsequent reparations are academic. Growing up he heard the stories of his grandmother, Agavni Kalfayan. As he had said in an earlier interview with the Aurora Prize website, his grandmother was born in 1910 in Afyonkarahisar, located between Izmir and Ankara. In the spring of 1915, her parents, Hakop and Takui, felt the imminent danger and decided to entrust their youngest child to a maternal aunt, also named Agavni. The two managed to get on a train to Smyrna. There, however, they were caught in the massive Smyrna fire. They eventually swam to the safety of an Italian boat, which took them to Piraeus, Greece. From there, they left for France, where an aunt had been living.
For the young Kalfayan, working toward gaining reparations and recognition of the Armenian Genocide resulted directly from hearing those heartbreaking stories.
France Genocide Recognition
In France, he explained, “there is no reconsideration of the Armenian Genocide political recognition,” he said, since the Genocide had been recognized in 2001.
“The French Parliament passed a bill on January 29, 2001 with a unique article stating, ‘France publicly recognizes the Armenian Genocide.’ This law is purely declarative and has no legal binding effect. One must understand that the historical truth has nothing to do with the judicial truth. MPs are not judges. Only judges can assess and qualify crimes.”
Interestingly, he pointed out that the resolution does not name the entity responsible for the genocide.
The recent resolution of October, however, is not likely to get anywhere. Not only was the bill adopted by a narrow margin of 156 to 146, but there are too many criteria for anything to qualify under that amendment and specific wording.
“The amendment adopted by a very narrow majority of the Senate on October 14, 2016 consists in adding new offenses, new crimes and new conditions. First, the offenses considered are the denial, minimization and banalization of crimes. Second, the crimes considered are genocides and crimes against humanity (other than Nuremberg IMT crimes), slavery crimes and war crimes as defined by the ICC statutes and the French Penal Code. Third, the crime should meet with two alternative criteria to be considered as a legal base,” he explained.
A similar measure, he said, was condemned by French and international jurisdictions. “The final say is left to the judge, which is the normal course of powers separation, to decide if the crime denied enters in the categories provisioned by French or International Laws (where the definitions of genocide, crime against humanity and war crime are almost similar). Therefore, I see very little room, if any, for French Armenians willing to try denialists of the Armenian genocide.”
He continued that a French-Armenian organization would have to prove that the words expressed are “outrageous” and designed to “incite violence and hatred against them; the subtle denialist will avoid such incitement.” No Turkish official has expressed themselves in quite such outrageous terms, even Dogu Perinçek, the Turkish politician who made it a point to challenge Switzerland’s Genocide denial laws and denied the Armenian Genocide there. He was charged but he challenged the law and won.
“In other words, President Hollande did keep his word but promoted a text that is not effective and operational for Armenians,” he said.
“This project has very little chance to succeed. There is no political consensus in France for such a law and I personally regret that the French Armenian organizations’ so-called ‘national council’ insist on it; this is politically not opportune and if they fail the political blow will be fatal,” he warned.
“In 2012, the Boyer Law (criminalizing the denial), which passed successfully both houses of the Parliament, with the support of Nicolas Sarkozy, was declared non-conforming by the Constitutional Council on February 28, 2012. The then Prime Minister, Francois Fillon, was already fighting in a subterranean manner against President Sarkozy to build his own future. His government operated a sabotage. I have been a direct witness of this sabotage.”
President Hollande may be subjected to a similar fate because he has no longer supporters even in its own ranks, he added.
The passing of the Armenian Genocide resolution in the German Parliament is more interesting, he said, even remarkable.
“I personally consider this German resolution remarkable, because this is the first time in history that a country recognizes its role of accomplice in the perpetration of an international mass crime. That recognition provides titles to Armenian Nation for demanding reparations from Germany. But I strongly advise Armenian groups desiring to sue Germany now, to engage first with actions against Turkey,” he said.
The resolution, he added, is part of a larger trend.
“First, it happened amidst a general worldwide trend for apology and redress for the wrongs committed in the past. It started in the early 2000s, when the rights of victims of serious mass violations of human rights or humanitarian law began to be recognized in courts and international legal instruments. You can witness such trends in many places: the US with Native Americans; Canada with the ‘Stolen Generations,’ Australia and New Zealand toward the indigenous peoples; Japan for the ‘Comfort Women,’ etc.
“Secondly, Germany did sign up this resolution along with its on-going process for recognition (a resolution will come soon) of the Herrero and Nama Genocide that they committed in Namibia from 1904 through 1908. This is actually the first genocide of the 20th century,” Kalfayan noted.
Similar to the laws in France, the situation with Perinçek in Switzerland pits freedom of _expression_ against the denial of Armenian history.
Kalfayan explained, “Some of the amicus curiae briefs submitted to the Grand Chamber of the ECHR [European Court of Human Rights] proposed solutions and criteria to determine in which conditions freedom of speech could be limited, considering that freedom of speech is the rule, and the limitations exceptions. I worked in this direction. There have been two damaging factors in this process: first, the Government of Armenia did not support at all any limitation over freedom of speech, while they were advised and asked by all other groups of diaspora or scholars to support the same view; second, due to this stance, the ECHR decision ended up in a political compromise between States: Armenia got satisfied because the qualification of genocide was not challenged legally; Turkey was satisfied because Perinçek can claim victory; Switzerland was satisfied because its anti-hate speech law has not been challenged and remains; only the disproportionate nature of the sanction in the specific case of Perinçek has been condemned. France and Switzerland’s common goal was to refer the dispute about the Armenian Genocide to a direct dialogue between Armenia and Turkey.”
However, the decision is not all negative, he said. “It must be highlighted that for the first time in the history of the Armenian Cause, an international court has stated that the massacres and deportations of Armenians by the Ottoman Empire are a reality that is not denied by Turkey [neither by Perinçek]. This is clearly stated in different paragraphs. Secondly, the judgment contains some legal bases constitutive of a right to repair for the descendants of victims.”
Turkey: Recognition and Reparations
The political situation in Turkey, Kalfayan said, clearly contributes to the general atmosphere in Europe. “If the ultra-nationalism and hate speech continue to develop in Turkey, especially against the Armenians, as we have been witnessing recently in Trabzon (Garo Paylan has reacted and intends to sue the authorities), then other similar speeches may occur in Europe. Armenians should be ready for it and continue this legal battle.”
He suggested that Armenians change how they operate if they want a different result. “Armenians will lose if they don’t change their strategy. It is submitted that the pursuit of current policy of the Republic of Armenia and ARF focusing exclusively on the recognition of Armenian Genocide is a political impasse. Time is expensive in the Armenian case. Secondly this policy is identity-centered, as if the whole identity of Armenians relies in the Armenian Genocide and religious properties,” he said.
He noted that it is not necessary for Turkey to recognize the acts it committed against the Armenians as genocide for Armenians to seek restitution and redress.
“The nature of the harm is the base of reparation, not the qualification of the crime,” he explained. “The political recognition process is not central, except in the United States. I submit that it is a major mistake to invest all efforts in it. This is a defensive and reactive strategy, which makes us lose too much time. Time is critical. It already causes serious legal problems. Armenians shall engage in a strategic battle centered on the reparations. In this strategy, US courts may be a key judicial forum. The US government must however shift its policy toward Turkey. All the reparations’ agreements that succeeded in the last decades have been possible thanks to the political pressure of the US federal government over the debtor countries. The US might also advocate an arbitration mechanism between Armenians and Turkey.”
Kalfayan advocates for a “strategic approach” to break the impasse. “The guilt and debt of Turkey are unused political and strategic assets. The Republic of Armenia must understand and support this strategy, not remain a simple observer,” he said.
For that purpose, he said, for the past 10 years he has tried to gather groups including the ARF Central Board, Armenia’s Ministry of Foreign Affairs and other participants, to join in a new approach for reparations, one involving a more detached legal attack.
“I have gathered a group of first class scholars and juris consultes for that purpose in a group called AGIR: Action Group for the International Reparation of Armenian Genocide). In vain so far…but I am optimistic,” he said.
In 2016, the Los Angeles branch of the Armenian Bar Association established its own Reparations Committee and the Armenian National Committee has just announced the creation of another legal center in Washington, he added.
“At some point, all those groups will have to work together because Armenians cannot afford having dispersed strategies and actions for the collective redress. Further, it would reveal ridiculous because a quite huge amount of work has been done to analyze the potential legal avenues and those groups will spend resources to reach the same conclusions or reinvent the wheel,” Kalfayan said. “At the end of the day, there is no room for two or more strategies: the strategy shall be unique and supported at a Pan-Armenian level, including by the Republic of Armenia diplomacy; otherwise nothing will happen.”
In fact, he concludes by advocating the creation of a specific institution to gather and vet legal claims.
Reparations do not need to translate into exact dollars and cents, but rather including recognition of guilt and then using those for corrective measures. Immediate and doable options, he said, include changing history textbooks in Turkish schools.
“There are much better things to get from Turkey than money,” he added, such as “free access to the Black Sea.”
“We should look at compensation differently,” he noted. Also, border changes are not likely to happen ever; rather, they are unrealistic.
“In 1915 we were starting to talk about crimes against humanity,” he said. “At the time the Genocide started, such crimes were already strictly prohibited. Those crimes had no name. Crime against humanity was defined at the Nuremberg Trials.”
One problem is that there are no agreed-upon conventions for crimes against humanity, since most countries target a segment of their own domestic populations at one point.
In the Armenian case, he explained, there are both individual as well as collective claims. The individual claims are primarily property and monetary/business losses, whereas they were confiscated by the central authorities.
“For all those, everyone can and should go to court in Turkey if they still have the deeds,” he said.
He said in a few cases, American-Armenian descendants of Genocide survivors had taken their concerns to courts in Turkey. One claimant sought the the restoration of lands in Diyarbakir. She ran into some procedural problems, including the statute of limitations, but the court admitted that the Turkish Treasury had not made all possible efforts to research the ownership of the land and thus cleared her for a trial on merits.
He admitted, however, “such cases are very scarce.”
Turkey may be induced to come to the negotiation table regarding reparations. One of them can be a legal action, where one or two major powers sympathetic to the Armenians — say, Russia and the US — can put pressure on Turkey to bring them to the negotiation table. The Armenians can pool their claim together to create a sort of class action suit, if they create a body through parties such as the ARF and the Republic of Armenia, to sift claims. “We need to start now,” if such action is going to happen, he said.
At the same time, he said, the Armenian lobby should work with their Jewish counterparts. “Israel has a very strange alliance with Azerbaijan and Turkey,” he said.
Armenia and Domestic Concerns
Kalfayan has long helped the legal system in Armenia, being instrumental in the creation of the Armenian Bar, with the help of the Council of Europe and the European Commission. What he sees there does not make him happy; in fact, he is outraged.
Rights and liberties are eroding, Kalfayan said, and the diaspora watches passively. “The country is getting emptied of its population and its integrity endangered. Diaspora communities and ‘leaders’ remain passive, hiding behind the legalistic argument, while the country is sinking due to the way it is ruled. The country has lost any economic, diplomatic and security sovereignty, and is on the verge of collapsing. That may be irreversible if nothing is done now,” he stressed.
Kalfayan said that action is the only way forward in Armenia. “I support all the recent petitions arguing in favor of the diaspora’s involvement. The protection and promotion of fundamental rights and democracy in Armenia are not ‘wishful thinking.’ The Republic of Armenia is built, since 1991, upon the contempt of the people. Neither its voice (votes), nor its rights and liberties are respected. There is no future without the re-establishment of people’s sovereignty. The diaspora will die in the long run if Armenia disappears,” he said.
The current situation in Armenia, he added, is an “oligarchic pyramid” and the majority of industry and infrastructures in the hands of Russia.
“Armenia may just end up as a province of the Russian Federation,” he said.
As for the future of Armenia, he had dire predictions. “All the people ruling [currently] should leave their positions; people will never trust them,” he said. “The intelligentsia of Armenia left in the early 1990s.” People will come back, he said, if there is regime change
In conclusion, Kalfayan remains active — hopeful yet wary. “The story of my grandmother, shaped deeply my activities and struggles. I have been an activist since I was 17 and I will remain one. I struggle for justice and I am consistent in the defense of principles, irrespective of whom it may concern. I am still a rebel. I cannot stay passive.”