Armenian-Turkish dialog

[MJ]

RFE/RL Armenia: Yerevan Rejects Turkish Mediation

 

Yerevan, 19 February 2001 (RFE/RL) -- Armenia today officially rejected

Turkey's offer to mediate a solution to its conflict

with Azerbaijan over the disputed Nagorno-Artsax region.

 

Turkey's Foreign Minister Ismail Cem suggested on Saturday that Ankara

could arrange trilateral talks with Armenia and

Azerbaijan on ways to resolve the 13-year territorial dispute.

 

But a spokeswoman for the Armenian Foreign Ministry, Dziunik Aghajanian,

told RFE/RL that Turkey can not act as a

mediator because it has an "explicitly one-sided position" in favor of

Azerbaijan.

 

Turkey, which has close ethnic and cultural affinity with Azerbaijan,

has refused to establish diplomatic relations with Armenia

until Yerevan recognizes Azerbaijani sovereignty over Artsax.

 

Relations between Turkey and Armenia have deteriorated further since a

recent decision by the French parliament to recognize

as genocide the 1915 mass killings of Armenians in what was then the

Ottoman Empire. The Turkish government denies there

was a state policy of genocide.

[MJ]

TURKEY'S WOMEN-PARLIAMENTARIANS EXPRESSED WILLING TO VISIT ARMENIA

 

Noyan Tapan

3 April 2001

 

YEREVAN, APRIL 3. Turkey's women-parliamentarians in June of 2001 will visit

Armenia. The agreement on it was achieved during the meting of the

women-parliamentarians of Armenia and Turkey, which was held on March 27-30

in Ankara. The deputy of Armenian parliament Hermine Naghdalian today

informed the journalists.

 

The Turkish side tries to begin a dialogue with Armenia, Naghdalian said.

Similar meetings may become a basis for beginning of political dialogue

between Armenia and Turkey. The issue on Turkey's stoppage of blockade of

Armenia may become one of the steps to the beginning. This issue was also

touched during the meetings. The Turkish parliamentarians intend to come to

Armenia by land way, passing the Marmara bridge on the Armenian-Turkish

border, for to assist the relaxation of Ankara's position in this issue, she

said.

[MJ]

THE TURKISH-ARMENIAN DIALOGUE

 

Presented by

 

The Armenian General Benevolent Union of Toronto

and

The Zoryan Institute of Canada

 

 

A Dialogue Across International Divides:

The Turkish-Armenian Dialogue and the Taboo in Turkey Regarding the

Armenian Genocide

 

 

A Lecture By

 

Dr. Taner Akçam

Research Scholar in Sociology, Hamburg Institute for Supporting Science &

Culture

Visiting Scholar, Armenian Research Center, University of Michigan-Dearborn

 

Screening of

 

 

`A Wall of Silence'

 

 

Friday, May 25, 2001, 7:30 p.m.

 

AGBU Alex Manoogian Cultural Centre

930 Progress Ave., Toronto

 

Admission Free

[MJ]

Unofficial Commission Acts to Ease Turkish-Armenian Enmity

 

By DOUGLAS FRANTZ

Special from The New York Times

 

ISTANBUL, July 9 — A group of prominent people from Armenia and Turkey put the final touches today on a reconciliation commission intended to open the way for a new era in relations between two neighbors divided by nearly a century of conflict and hatred.

 

The participants, including some former officials, have been meeting discreetly for many months. This was the first time they had spoken publicly about the effort, which is likely to evoke strong reactions among Turks and Armenians worldwide.

 

The private group, the Turkish- Armenian Reconciliation Commission, is trying to foster cooperation and communication that will lead to direct talks between the governments of the two countries.

 

"This is not a substitute for what the Turkish and Armenian governments must do, but it can contribute momentum and develop recommendations," David L. Phillips, an American who teaches conflict prevention at the Diplomatic Academy of Vienna, said in a telephone interview from Geneva, where he moderated the meeting today.

 

Turkey broke diplomatic relations and closed its border with Armenia almost a decade ago after a war started between Armenia and Azerbaijan, a Turkish ally. The deeper division, however, is rooted in the dying days of the Ottoman Empire.

 

By most historical accounts, the Ottomans killed more than one million Armenians between 1915 and 1923 in a concerted effort to eliminate the ethnic Armenian population from what is now Turkey. Armenians have waged an international campaign to have the events declared genocide.

 

Turkish officials reject calling the deaths genocide, disputing the number killed and the circumstances. In a new government publication, Turkey said that there were far fewer deaths and that Muslims were also killed when Armenians rebelled against the Ottoman government.

 

The 10-member commission will not determine the validity of either position. Instead, it will explore ways to bridge the gap, participants said.

 

"The intent is not to find what the truth is, but it is to open new horizons for the future and enhance mutual understanding," Ozdem Sanberk, executive director of a private foundation in Istanbul and a former Turkish ambassador to Britain, said in an interview.

 

Alexander Arzoumanian, chairman of the main opposition party in Armenia and a former foreign minister, said the commission offered a chance to overcome past conflicts by opening a dialogue.

 

Similar private efforts have paid off elsewhere, including in South Africa, said Elie Wiesel, winner of the Nobel Peace Prize and a professor at Boston University. "I see this event as a miracle," Mr. Wiesel said in a telephone interview from New York. "If Turks and Armenians can meet and talk, that means others can do it, too."

 

The reconciliation commission finalized language today for its founding charter and developed a list of initial activities. It will support cultural exchanges, efforts to improve business and tourism and programs in education and research. Plans call for a collaborative documentary on nationalism and discussions with historians, lawyers and psychologists.

 

The Turkish and Armenian governments are not involved, but participants said both had given tacit approval. The State Department supported the initiative; and Andranik Migranian, an Armenian adviser to President Vladimir V. Putin of Russia, is a commission member.

 

Several commission members said initial suspicions and wariness among members had given way to an encouraging degree of cooperation and understanding. But they said uncertainties remained.

 

"I'm sure there are people who will give us a chance and people who are interested in keeping the situation the way it has been," said Van Z. Krikorian, a lawyer in New York and chairman of the Armenian Assembly of America, the largest Armenian- American advocacy group. "It may crash and burn."

 

Armenian-Americans are among the harshest critics of Turkey's treatment of Armenians, but Mr. Krikorian said he expected a majority to welcome the dialogue.

 

One of the biggest challenges, some members said, will be persuading Turks and Armenians to recognize their starkly different psychological interpretations of what happened from 1915 to 1923.

 

Vamik D. Volkan, a commission member and psychiatry professor at the University of Virginia, said the deaths of relatives and ancestors at the hands of Turks were an essential part of the identity of most Armenians, while Turks were taught little about what happened in the collapse of the Ottoman Empire.

 

"There is no such thing as being Armenian without a reference to what happened," said Dr. Volkan, who was born in Turkish Cyprus. "We lost an empire, and we did not grieve over it." Dr. Volkan said Armenian participants were surprised to learn that some of the Turks came from families that had suffered after being driven from other parts of the Ottoman Empire.

 

"Armenians cannot even imagine that Turks suffered, too," he said. "The key will be to find an empathetic understanding that they all suffered."

[MJ]

ASSEMBLY CALLS LAUNCH OF HIGH-LEVEL TURKISH-ARMENIAN RECONCILIATION COMMISSION A "MAJOR ADVANCE"

 

-------

July 10, 2001

 

Washington, DC -- The Armenian Assembly of America praised the launching of a high-level Turkish-Armenian Reconciliation Commission, announced today in Geneva, Switzerland, as a significant international development. After years of talking through intermediaries, this Commission will promote direct dialogue and cooperation to address the issues dividing Armenians and Turks.

 

Comprised of a diverse and highly talented group, its membership includes ten private individuals from Armenia, Turkey, Russia and the United States: Gunduz Aktan, former Turkish Ambassador to the United Nations in Geneva and currently a columnist for the Turkish Daily News; Alexander Arzoumanian, former Foreign Minister of the Republic of Armenia; Ustun Erguder, former president of Bogazici University (previously Robert College); Sadi Erguvenc, retired general, Republic of Turkey; David Hovhannissian, former Armenian Ambassador to Syria and currently an Assistant Professor at Yerevan State university; Van. Z. Krikorian, Chairman of the Board of Directors of the Armenian Assembly of America; Andranik Migranian, former Foreign Policy Advisor to Russian President Boris Yeltsin and a member of the Union of Armenians in Russia; Ozdem Sanberk, former Deputy Foreign Minister of the Republic of Turkey and currently Executive Director of the Istanbul think tank TESEV; Ilter Turkmen, former Foreign Minister of the Republic of Turkey; and, Vamik D. Volkan, a psychiatrist at the University of Virginia in Charlottesville.

 

"This is the first multi-disciplinary, comprehensive attempt to reconcile differences between two neighbors, separated by bitterness and mistrust, and as such, it is a major advance. After years of indirect mediation attempts, it is the first time that the two parties are talking directly to each other," said Chairman of the Assembly's Board of Trustees, Hirair Hovnanian. "I am particularly proud that the Assembly's Board of Directors Chairman Van Krikorian is on this high-level Commission. He has an outstanding track record as an advocate for Armenia and I commend his determination and initiative. I firmly believe that it is to the benefit of everyone, particularly those living in the region, to explore any mutually acceptable solutions to the problems between Turkey and Armenia."

 

The Assembly's Board of Trustees President Carolyn Mugar also applauded the Turkish-Armenian Reconciliation Commission. "I have observed the reconciliation process at work in South Africa and Northern Ireland. The legal, psychological and political issues are always difficult and complex, but it is incumbent on us all to make every attempt," said Mugar. "We believe that the Turkish-Armenian Reconciliation Commission will benefit and build on the experiences of other similar international efforts. We applaud those efforts, and because of them, believe that the time may well be ripe for us to advance Turkish-Armenian relations. Mutual understanding opens new prospects and can only benefit the people of Armenia and Turkey."

 

The Turkish-Armenian Reconciliation Commission's goal is "to promote mutual understanding and good will between Turks and Armenians, and to encourage improved relations between Armenia and Turkey." Its terms of reference state that the Commission will support contact, dialogue and cooperation between Armenian and Turkish civil society and develop recommendations to be submitted to concerned governments.

 

---

The Armenian Assembly of America is the largest Washington-based nationwide organization promoting public understanding and awareness of Armenian issues. It is a 501 ©(3) tax-exempt membership organization.

 

----------- http://www.aaainc.org/press/7-10-01.htm

[MJ]

Interview With Turkish-Armenian Commission Member Van Krikorian

 

 

 

 

Below is the text of an RFE/RL interview with Van Krikorian, chairman of the Armenian Assembly of America and a member of the Turkish-Armenian Reconciliation Commission.

 

 

 

 

Harry Tamrazian: From the initial media reports on the latest meeting of the Turkish-Armenian Reconciliation Commission in Istanbul one can assume that the meeting had some concrete results. Can you share with us the results of the Istanbul meeting?

 

Van Krikorian: After the announcement of the formation of the commission, people said some things in the media, which were problematic and inconsistent with the understandings that we had regarding our work. The first thing that we did, just in a very gentlemanly way, was to go over them, talk about them and clarify what people had actually said and what there were quoted as saying. We tried to get to know one another better in that regard.

 

Second, we spent most of our time talking to people in Turkey from different parts of society, from media. I think probably there wasn't that much media coverage, because we specifically talked to a lot of journalists off the record. It was not our goal to negotiate in the media or discuss things in the media, but to meet with them as journalists and get their opinions.

 

We met with academics, we met with diplomats and political figures and we discussed their different perceptions on a variety of questions ranging from the obvious genocide issue to other issues and there are lot of other issues actually, dividing Armenians and Turks. We started to get a range of opinions from people about what should be done to promote reconciliation between Armenians and Turks and what they think the issues are that divide us.

 

Third, we discussed the proposal from the International Center for Transitional Justice to provide a seminar and to assist us in the work that we have undertaken.

 

Forth, we spent some time talking about physiological issues that exist just for Armenians, just for Turks and for others that are neither Armenians nor Turks and the interactions of those three different points. We decided to have some people, put some time and effort into examining those issues defining what they are and also see if we can come up with some proposals on how to deal with them. We also began to discuss how we would go about making our recommendations or prepare our recommendations to the concerned governments, which is another important part of what we are going to be doing as a commission.

 

Q: But despite the positive developments that you have cited, the Turkish government did not ease its policy on the issue of genocide. For example on October 2 the Turkish government summoned the Vatican's ambassador to Ankara, Luigi Conti, to the foreign ministry and orally conveyed its disappointment over the Pope's remarks, made in a joint statement with the head of the Armenian Church during a visit to Armenia last month.

 

A: I explain it in at least two ways. First, we are not dealing with the Turkish government and the same way that Turkish government reacted to the Vatican, I can say the organization of which I am the chairman, the Armenian Assembly hasn't reacted in any other way except to commend the Pope, commend the Armenian Church for having the Pope make that statement, for inviting the Pope to Armenia and at the same time continuing all of our work internationally and especially in the United States to have the Armenian Genocide reaffirmed and recognized and the consequences of it dealt with.

 

The commission is something separate than that. What we are doing is, while we agree that none of us are constrained in our other capacities from doing whatever we want, we are working on the areas where things might make a difference.

 

Second, I would expect the progress that we make would be incremental. I would note that we are glad to speak in private meetings with prominent Turks about the Armenian Genocide. I would expect that that trend will continue, and the more we can get discussion of that issue to be uncensored, to be open, to be something that Turks and their society understand has to be dealt with, the better.

 

Do I expect the Turkish government to change its policy about the Armenian genocide and all of a sudden acknowledge it on account of our commission after a couple of months work? No, absolutely not. Am I pleased that the Turkish government is allowing this process of mutually searching for answers on how to deal with the issues that divide us to go ahead? Yes. Am I pleased that we are able to talk with elite members of civil society in Turkey about these issues directly? Yes.

 

I am very pleased about that and I think I know that represents progress, because some time ago that would have been impossible, it would have been absolutely impossible to do at the level at which we are doing it. The last point I will make is that among the people we met there were those who would say yes we should acknowledge, Turks who would say yes we should acknowledge the Armenian Genocide. There were also people who fervently believed the opposite- fervently- and those are people that we have to deal with as well not just the liberals in their society.

 

Q: There were some concerns in the Armenian media that the commission could be an effective tool for Turkey to prevent further recognition of the Armenian Genocide in Western parliaments. In fact one of the Turkish members of TARC has made a statement in the Azeri press that the main goal of the commission is to prevent the recognition of the Armenian Genocide in the European and US legislatures.

 

A: That was the kind of statement that we dealt with quite directly in private. In public we made a statement about the different quotations that have come out after the first meeting some of which were not helpful clearly to our shared goal.

 

Q: So did you discuss this issue in your second meeting in Istanbul and was there an agreement or some kind of consensus on how you would deal with these issues in the future?

 

A: Absolutely, absolutely. With regard to what people say as commission members we are very clear and we adopted some media principles. We agreed to the ground rules on what people should and should not be saying about the commission's work. That is in their individual capacities as commissioners. In their non-commission capacities there were no restraints on what people say.

 

Q: There was also some criticism in the Armenian media, in Diaspora media, that the mission of the commission was rather vague. It seems to me that your second meeting was more specific on the mission of this commission. Am I right? And also did you discuss the possibility of reopening the Turkish-Armenian border?

 

A: Yes you are right. With regard to specific goals we are getting there. The first thing that needs to be done is to identify the issues that divide us. What do Armenians want from Turks and what do Turks want from Armenians? How can we deal with these issues? The deeper we go the more complicated a lot of the issues become. One of the things that our commission is trying to do is to promote diplomatic relations between the two countries. So that the kinds of issues that we are discussing and trying to come up with creative solutions can also be discussed on a government to government level; issues of treatment of the Armenian presence in Turkey, historically, cultural issues, business issues.

 

The consequences of the Genocide are critical to deal with. We do talk about the consequences of the genocide. The issues of lack of diplomatic relations between Armenia and Turkey are obviously an issue we have to deal with. The issue of border closing is an issue that we have to deal with. The issue of visas, Turkey imposed a different visa regime on Armenians from Armenia going to Turkey, is one that we have to talk about and we do talk about. Those fall within the categories of issues that divide Armenians and Turks and there are more. There are lots of opportunities and also problems in those areas that need to be explored. What this commission will accomplish if it is successful is to open up those issues to structural discussions, not polemical, not propagandistic, but serious discussion and to have some recommendations.

 

Q: When you say the commission is discussing the consequences of genocide does it mean that the issues related to compensating genocide victims are also being discussed?

 

A: We can say all issues [are being discussed], all issues of the Armenian Genocide, all issues of removing Armenians from their homeland, - which is not just a psychological problem it is also a legal problem. It is a deep problem. Andranik's [Mihranian] father came from Mush his mother came from Kars. My father's family came from Chimiskese my mother's family came from Shapinkarahisar. For us, that's our homeland. We love Armenia, but for us that is our homeland too. We need to explore that with our Turkish colleagues, we need to explore that with the Turkish society, we need to explore that with the Turkish decision-makers.

 

Q: There were some concerns that the Armenian side had no adequate representation in the commission. There were suggestions to broaden the level of representation, including political parties in TARC. The commission was criticized for heavily relying on members of former ruling elite. Were these issues addressed during the Istanbul meeting?

 

A: The ground rules for establishing the membership was the following: Each side was responsible to choose its own members. We have no control over whom they choose they have no control over whom we choose. I want to be very clear that there was no agreement that the initial ratio would be 6 to 4. They came with six people and we were working fine with four people. But we do want to increase our number - that is not something that we have to agree on with them. They were even more sensitive to the fact that people might misunderstand the six to four ratio. In [the upcoming meeting in] New York we will participate with an increased number. We also talked very much about how to broaden the base and if we need to bring other Armenians within our framework and other Turks within our framework how we could do that. We also spent a fare amount of time talking about how to encourage other Armenians and other Turks independent of us to start talking directly to one another. It is something that we want to encourage. We don't want people to think as though this commission is the exclusive means of forwarding Armenian-Turkish relations. Our intention is to encourage other people also to do that.

 

Q: Can we say that in New York there will be more Armenian members and that the new Armenian members of the commission will represent some parliamentary party in Armenia or a Diaspora party? Can you be more specific?

 

Today no. We have a lot of people who wanted to be on this commission from different parts of the world, from different backgrounds. We made a ranking and discussed who would fit where. I am quite sure that in New York we will have increased by one or two but at the same time I can't say who they are going to be, because we are still having the discussion with the people.

 

Q: I am not asking you to reveal the names. My question is whether these people will represent major parliamentary parties?

 

A: I think the answer to that is no. I can say no definitively because nobody is representing a party. Alik Arzumanian is not representing any party. I will say that we consider people from major political parties represented in the parliament but as individuals not as party members. We made some rankings and I don't want to embarrass anyone. We will not exclude any Armenian. We don't draw differences between any Armenians. I think that virtually everyone who expressed an interest could contribute. I really believe that there is no such thing as somebody being better Armenian or better candidate.

 

Q: What is the reason for changing the venue of the next meeting. As we know now TARC has decided to move the next meeting from Yerevan to New York?

 

A: We agreed that we will meet in Yerevan but we didn't agree that the next meeting would be in Yerevan. We are looking forward to going to Yerevan. The proposal from the International Center for Transitional Justice which is based in New York, was so important to our work that we decided that our next meeting should be in New York to start the work with that group. In Armenia, in Yerevan we are going to be engaging in the same type of activity that we engaged in Turkey that is to meet with a broad base of people who have comments positive or negative about our goal and about us. I have no question that we will hear from supporters and critics alike. But I can say definitively that we had not agreed as a commission to hold the next meeting in Yerevan. We have a significant Armenian Diaspora in New York and we also have Turkish-Americans in New York and they have a role to play in all of this as well. One of the other thing that we agreed to is that on November 2 in Washington both Mr. Samberk and I will be addressing the annual meeting of the Assembly of Turkish-American associations which I think is a great opportunity for both of us and especially for me because it is an opportunity for an Armenian to go and talk about the Armenian prospective on the issues that divide us, to talk about the Armenian Genocide and the need to deal with it and to engage with what has become a significant voice in this debate that is Turkish-Americans.

 

Q: We know now that the commission will soon have its secretariat and TARC website. It seems to me that you are going to have a permanent functioning structure? Tell us more about that.

 

A: I think your assumption is correct. We will probably have a permanent functioning structure. We had substantial discussions about where the secretariat should be and we have received different proposals on it, whether we should have secretariat in Yerevan and Istanbul, whether we should have a secretariat in North America, whether we should have a secretariat in Europe. I think I probably just violated one of our rules in terms of discussing in public things that are discussed in private and have not been decided on and I hope that my fellow commissioners will forgive me for that. We are still having the discussion on where the secretariat ought to be.

http://www.armenialiberty.org/ar-report/20...11011112612.asp

[MJ]

THE APPLICABILITY OF THE UNITED NATIONS CONVENTION ON

THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE

TO EVENTS WHICH OCCURRED DURING THE EARLY TWENTIETH

CENTURY LEGAL ANALYSIS PREPARED FOR

THE INTERNATIONAL CENTER FOR TRANSITIONAL JUSTICE

 

This memorandum was drafted by independent legal counsel based on a

request made to the International Center for Transitional Justice ("ICTJ"), on the basis of

the Memorandum of Understanding ("MoU") entered into by The Turkish Armenian

Reconciliation Commission ("TARC") on July 12, 2002 and presentations by members of

TARC on September 10, 2002, seeking an objective and independent legal analysis

regarding the applicability of the United Nations ("UN") Convention on the Prevention

and Punishment of the Crime of Genocide1 to events which occurred during the early

twentieth century.2

This memorandum is a legal, not a factual or historical, analysis. In

deriving the conclusions contained in this memorandum we have attempted to state

explicitly whether our conclusion relies on any factual assumptions. Although we have

reviewed various accounts of the relevant facts, we have not undertaken any independent

factual investigation.

We emphasize further that this memorandum addresses solely the

applicability of the Genocide Convention to the Events. It does not purport to address the

applicability to the Events of, or the rights or responsibilities of concerned individuals or

entities under, any other rubric of international law or the laws of any nation.

1 Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102

Stat. 3045, 78 U.N.T.S. 277, U.N.G.A. Res. 260, U.N. GAOR, 3rd Sess., 179th Plen. Mtg.

at 174, U.N. Doc. A/810 (1948) [hereinafter "Genocide Convention" or the "Convention"].

2 We acknowledge disagreement as to the magnitude and scope of these events, their context

and intended effect, and the identities and affiliations of their perpetrators. See, e.g., on the

one hand, Turkish Foreign Ministry, Ten Questions, Ten Answers: Did 1.5 Million

Armenians Die During World War I?, available at http://www.turkey.org/governmentpolitics/

documents/10Q10A.pdf/; and, on the other hand, Armenian National Institute, Genocide

FAQ, available at http://www.armenian-genocide.org/ genocidefaq.htm#HowMany. This

memorandum adopts the terminology of TARC reflected in the MoU in referring to these

events hereinafter as the "Events."

2

I. THE GENOCIDE CONVENTION

A. The International Crime of Genocide

Article I of the Convention declares genocide to be a crime under

international law which signatories will prevent and punish.3 Article II of the Convention

provides that:

[G]enocide means any of the following acts committed

with intent to destroy, in whole or in part, a national,

ethnical, racial or religious group, as such:

(a) Killing members of the group;

( Causing serious bodily or mental harm to members

of the group;

© Deliberately inflicting on the group conditions of

life calculated to bring about its physical destruction

in whole or in part;

(d) Imposing measures intended to prevent births

within the group;

(e) Forcibly transferring children of the group to

another group.4

This Article has been imported verbatim into the Statutes of the

International Criminal Tribunals for Rwanda and the former Yugoslavia, as well as the

new Statute of the International Criminal Court.5

3 Genocide Convention, Art. I.

4 Id., Art. II.

5 See Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible

for Genocide and Other Serious Violations of International Humanitarian Law Committed in

the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such

Violations Committed in the Territory of Neighboring States, S.C. Res. 955, U.N. SCOR,

3453d Mtg. at 3., U.N. Doc. S/RES/955, Annex (1994), reprinted in 33 I.L.M. 1598, 1602

(1994) [hereinafter "ICTR Statute"]; Statute of the International Criminal Tribunal for the

Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law

Committed in the Territory of the Former Yugoslavia Since 1991, U.N. Doc. S/25704,

Annex, reprinted in 32 I.L.M. 1192 (1994) [hereinafter "ICTY Statute"]; Rome Statute of the

International Criminal Court, U.N. Diplomatic Conference of Plenipotentiaries on the

Establishment of an International Criminal Court, U.N. Doc. A/CONF. 183/9 (1958),

available at http://www.un.org/icc/index.htm [hereinafter "ICC Statute"].

3

Article III clarifies that complicity in genocide and conspiracy, direct and

public incitement and attempt to commit genocide, in addition to genocide itself, are

punishable.6

B. Punishment of Genocide

Article IV of the Convention states that "[p]ersons committing genocide

… shall be punished, whether they are constitutionally responsible rulers, public officials

or private individuals."7 Articles V, VI and VII impose various obligations on States

party to the Convention to enact domestic measures aimed at preventing and punishing

genocide.8 Articles VIII and IX provide mechanisms for States party to the Convention

to call upon organs of the UN to take action to prevent and suppress genocide9 and to

refer disputes concerning the "interpretation, application or fulfillment" of the

Convention to the ICJ.10

The remaining nine articles of the Convention are essentially procedural.11

6 Genocide Convention, Art. III. The Convention refers in several instances to "genocide or

any of the other acts enumerated in article III" (or words to that effect). See id., Arts. IV, V,

VI, VII, VIII and IX. For purposes of convenience, references in this memorandum to the

international crime of "genocide" are intended, unless the context clearly indicates otherwise,

to encompass genocide and the other acts enumerated in article III of the Genocide

Convention.

7 Id., Art. IV. While Article IV provides only that "persons" (rather than states) shall be

punished for committing genocide, Article IX of the Convention provides that disputes

between states party to the Genocide Convention relating to its interpretation, application or

fulfillment, "including those relating to the responsibility of a State for genocide," shall be

submitted to the International Court of Justice ("ICJ") at the request of any of the parties to

the dispute. Id., Art. IX. The ICJ has stated that the reference in Article IV of the Convention

to "rulers" or "public officials" "does not exclude any form of State responsibility … for acts

of its organs" and that Article IX's reference to State responsibility may include responsibility

for the commission of genocide, as well as responsibility for failure to fulfill the State's

obligations to prevent and punish genocide as set forth in Articles V, VI and VII. See Int'l Ct.

of Justice, Case Concerning Application of the Convention on the Prevention and Punishment

of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections (July

11, 1996), available at http://www.icj-cij.org/ icjwww/idocket/ibhy/ibhyjudgment/

ibhy_ijudgment_19960711_frame.htm, 32.

8 Genocide Convention, Arts. V-VII.

9 Id., Art. VIII.

10 Id., Art. IX.

11 Id., Arts. X-XIX

4

II. EXECUTIVE SUMMARY OF LEGAL CONCLUSIONS

International law generally prohibits the retroactive application of treaties

unless a different intention appears from the treaty or is otherwise established. The

Genocide Convention contains no provision mandating its retroactive application. To the

contrary, the text of the Convention strongly suggests that it was intended to impose

prospective obligations only on the States party to it. Therefore, no legal, financial or

territorial claim arising out of the Events could successfully be made against any

individual or state under the Convention.

The term genocide, as used in the Convention to describe the international

crime of that name, may be applied, however, to many and various events that occurred

prior to the entry into force of the Convention. References to genocide as a historical fact

are contained in the text of the Convention and its travaux preparatoires.

As it has been developed by the International Criminal Court (whose

Statute adopts the Convention's definition of genocide), the crime of genocide has four

elements: (i) the perpetrator killed one or more persons; (ii) such person or persons

belonged to a particular national, ethnical, racial or religious group; (iii) the perpetrator

intended to destroy, in whole or in part, that group, as such; and (iv) the conduct took

place in the context of a manifest pattern of similar conduct directed against that group or

was conduct that could itself effect such destruction.

There are many accounts of the Events, and significant disagreement

among them on many issues of fact. Notwithstanding these disagreements, the core facts

common to all of the various accounts of the Events we reviewed establish that three of

the elements listed above were met: (1) one or more persons were killed; (2) such persons

belonged to a particular national, ethnical, racial or religious group; and (3) the conduct

took place in the context of a manifest pattern of similar conduct directed against that

group. For purposes of assessing whether the Events, viewed collectively, constituted

genocide, the only relevant area of disagreement is on whether the Events were

perpetrated with the intent to destroy, in whole or in part, a national, ethnical, racial or

religious group, as such. While this legal memorandum is not intended to definitively

resolve particular factual disputes, we believe that the most reasonable conclusion to

draw from the various accounts of the Events is that at least some of the perpetrators of

the Events knew that the consequence of their actions would be the destruction, in whole

or in part, of the Armenians of eastern Anatolia, as such, or acted purposively towards

this goal, and, therefore, possessed the requisite genocidal intent. Because the other three

elements identified above have been definitively established, the Events, viewed

collectively, can thus be said to include all of the elements of the crime of genocide as

defined in the Convention, and legal scholars as well as historians, politicians, journalists

and other people would be justified in continuing to so describe them.

LEGAL ANALYSIS

III. THE GENOCIDE CONVENTION DOES NOT BY ITS TERMS APPLY TO

ACTS THAT OCCURRED PRIOR TO JANUARY 12, 1951.

A. International law generally prohibits the retroactive application of treaties.

Article 28 of the Vienna Convention on the Law of Treaties provides that:

Unless a different intention appears from the treaty or is

otherwise established, its provisions do not bind a party in

relation to any act or fact which took place or any situation

which ceased to exist before the date of the entry into force

of the treaty with respect to that party.12

The Vienna Convention on the Law of Treaties did not itself enter into

force until January 27, 1980. However, while the convention "constitute[d] both

codification and progressive development of international law…"13 at the time it was

adopted, "[m]ost provisions of the Vienna Convention … are declaratory of customary

international law."14 The International Court of Justice has noted the customary status of

certain provisions of the Vienna Convention on the Law of Treaties, including Article 62

(termination of a treaty by a fundamental change of circumstances)15 and Article 60

(termination of a treaty due to material breach)16. U.S. courts have applied the

12 Vienna Convention on the Law of Treaties, May 23, 1969, U.N. Doc. A/CONF. 39/27

(1969), Art. 28 [hereinafter "Vienna Convention on the Law of Treaties"].

13 International Law Commission, Reports of the Commission to the General Assembly, [1966]

2 Y.B. Int'l L. Comm'n 169, 177, UN Doc. A/CN.4/SER.A/1966/Add.1.

14 Marian L. Nash, Contemporary Practice of the United States relating to International Law, 75

Am. J. Int'l L. 142, 147 (1981)(quoting text of a letter dated Sept. 12, 1980 from Roberts B.

Owen, Legal Adviser of the U.S. Dep't of State, to Sen. Adlai E. Stevenson, Chairman of the

Subcommittee on Science, Technology and Space of the U.S. Senate Committee on

Commerce, Science and Transportation).

15 "This principle, and the conditions and exceptions to which it is subject, have been embodied

in Article 62 of the Vienna Convention on the Law of Treaties, which may in many respects

be considered as a codification of existing customary law on the subject of the termination of

a treaty relationship on account of change of circumstances." Int'l Ct. of Justice, Fisheries

Jurisdiction (U.K. v. Ice.), Jurisdiction of the Court, 1973 I.C.J. 3, 8 (Feb. 2).

16 "The rules laid down by the Vienna Convention on the Law of Treaties concerning

termination of a treaty relationship on account of breach (adopted without a dissenting vote)

may in many respects be considered as a codification of existing customary law on the

subject." Legal Consequences for States of the Continued Presence of South Africa in

6

interpretive provisions of the convention as reflecting customary international law (and

therefore US law), despite the fact that the United States has signed but not ratified the

Vienna Convention on the Law of Treaties, and officials of the U.S. government have

made statements to similar effect.17

The case law of the International Court of Justice prior to the adoption of

the Vienna Convention on the Law of Treaties tends to support the contention that

Article 28 codified existing international law. In the Ambatielos case, the Court

observed:

To accept [the Greek Government's] theory would mean

giving retroactive effect to Article 29 of the Treaty of 1926,

whereas Article 32 of this Treaty states that the Treaty,

which must mean all the provisions of the Treaty, shall

come into force immediately upon ratification. Such a

conclusion might have been rebutted if there had been any

special clause or any special object necessitating retroactive

interpretation. There is no such clause or object in the

present case. It is therefore impossible to hold that any of

its provisions must be deemed to have been in force

earlier.18

The Court in the Ambatielos case recognized that the States Parties to a

treaty could provide for its retroactive application, a position the Permanent Court of

International Justice had earlier upheld.19 The analysis under the Vienna Convention of

the Law of Treaties' formulation of the rule therefore turns to whether "a different

intention appears from the treaty or is otherwise established" that would permit the

Genocide Convention to be applied to acts committed prior to its entry into force.20

Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970

I.C.J. 6, (Jun. 21).

17 See generally Restatement (Third), Foreign Relations Law III, Introductory Note (1987).

18 Ambatielos Case (Greece v. U.K.), Preliminary Objections, 1952 I.C.J. 27, 40 (July 1).

19 Mavrommatis Palestine Concessions Case, 1924 PCIJ (Ser. A.) No. 2 ("An essential

characteristic therefore of Protocol XII [is] that its effects extend to legal situations dating

from a time previous to its own existence. If provision were not made in the clauses or the

Protocol for the protection of the rights recognized therein as against infringements before the

coming into force of that instrument, the Protocol would be ineffective as regards the very

period at which the rights in question are most in need of protection.").

20 Vienna Convention on the Law of Treaties, Art. 28.

7

B. Neither the text nor the travaux preparatoires of the Convention manifest an

intention to apply its provisions retroactively.

Pursuant to Article 13, the Convention entered into force on January 12,

1951, the ninetieth day following the date of deposit of the twentieth instrument of

ratification with the UN Secretary-General. Subsequent ratifications and accessions

became effective for the states submitting them on the ninetieth day following the date of

their deposit. As noted above, unless a contrary intention appears, a treaty provision

stating that a treaty comes into force on a particular date "must mean all the provisions of

the Treaty" come into force on that date.21

The text of those provisions of the Convention imposing obligations on

States Parties to the Convention almost universally obligate the States Parties to take

action in the future. For example, the States Parties "undertake" to prevent and punish

the crime of genocide,22 "undertake to enact" the necessary legislation to give effect to

the Convention's provisions,23 and agree that persons charged with genocide "shall be

tried" by competent domestic or international tribunals24.

The travaux preparatoires of the Convention support the contention that

the negotiators understood that they were accepting prospective, not retrospective,

obligations on behalf of the States they represented, including the "prevention of future

crimes."25 One delegate described the purpose of the Convention as expressing "the

peoples' desire to punish all those who, in the future, might be tempted to repeat the

appalling crimes that had been committed."26

21 Ambatielos Case, supra note 18. See also Restatement (Third) of the Foreign Relations Law

§ 322 (1987).

22 Genocide Convention, Art. 1.

23 Id., Art. 5.

24 Id., Art. 6.

25 Official Records of the Third Session of the General Assembly, Part I, Sixth Committee,

p. 13 (Statement of Mr. Morozov) [hereinafter "Travaux Preparatoires"]. See also id. pp. 41-

42 (statement of Mr. Dihigo), p.44 (statement of Mr. Kaeckenbeeck).

26 Travaux Preparatoires, p. 30 (statement of Mr. Prochazka). See also id. p. 15 (Statement of

Mr. Sundaram) ("genocide should be made a punishable crime"), p. 78 (Statement of Mr.

Maûrtua)("the concept of genocide was new"), p. 126 (Statement of Mr. Messina)(genocide

was "a new crime under international law"), p. 127 (Statement of Mr. Fitzmaurice)("the aim

of the convention was to establish the concept of a new crime").

8

C. Conclusion

The Genocide Convention does not give rise to individual criminal or state

responsibility for events which occurred during the early twentieth century or at any time

prior to January 12, 1951.

9

IV. ALTHOUGH THE GENOCIDE CONVENTION DOES NOT GIVE RISE TO

STATE OR INDIVIDUAL LIABILITY FOR EVENTS WHICH OCCURRED

PRIOR TO JANUARY 12, 1951, THE TERM "GENOCIDE", AS DEFINED IN

THE CONVENTION, MAY BE APPLIED TO DESCRIBE SUCH EVENTS.

A. Scope of this memorandum

We have been requested to provide our opinion on the "applicability" of

the Genocide Convention to the Events. It is beyond the scope of this memorandum to

investigate the extent to which the Convention codified existing international law

regarding responsibility for genocidal acts, although we note that the International Court

of Justice has opined that, at least following its adoption, the "principles underlying the

Convention are principles which are recognized by civilized nations as binding on States,

even without any conventional obligation."27 Likewise, this memorandum does not

address, as beyond the scope of the request to us, the claim raised as early as 191528 that

the Events constituted, when committed, an international crime entailing state and

individual criminal responsibility under customary international law.

27 Int'l Ct. of Justice, Reservations to the Convention on the Prevention and Punishment of the

Crime of Genocide, Advisory Opinion (May 28, 1951), 1951 I.C.J. 15, 23. The ICJ recently

confirmed that "the rights and obligations enshrined by the [Genocide] Convention are rights

and obligations erga omnes." Int'l Ct. of Justice, Case Concerning Application of the

Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and

Herzegovina v. Yugoslavia), Preliminary Objections (July 11, 1996), 1996 I.C.J. 595, 616.

28 On May 24, 1915 the Allies issued a joint declaration that "n view of these new crimes of

Turkey against humanity and civilization, the Allied governments announce publicly ... that

they will hold personally responsible ... all members of the Ottoman government and those of

their agents who are implicated in such massacres [of Armenians]." See Matthew Lippman,

The Convention on the Prevention and Punishment of the Crime of Genocide: Fifty Years

Later, 15 Ariz. J. Int'l & Comp. L. 415, 416 (1998). The 1919 Report of the Commission on

Responsibility of the Authors of the War and on Enforcement of Penalties concluded that the

Ottoman Empire’s treatment of Armenians in its territory contravened "the established laws

and customs of war and the elementary laws of humanity," and declared that Ottoman

officials accused of such acts were liable for prosecution. Commission on the Responsibility

of the Authors of the War and on the Enforcement of Penalties, Report Presented to the

Preliminary Peace Conference, March 29, 1919, reprinted in 14 Am. J. Int'l L. 95, 112-17

(1920). The two U.S. delegates dissented, objecting most strenuously to the criminalization

of contraventions of the laws of humanity. The laws of humanity were, they believed, a

moral rather than a legal concept, and they felt that the prosecution of individuals before a

newly created international court for violation of the ill-defined laws of humanity would

constitute retroactive prosecution. Id., at 134-36.

10

The request to consider the "applicability" of the Convention to the Events

does encompass an analysis of whether the term "genocide", as defined in the

Convention, may appropriately be applied, (a) as a general matter, to describe events

which occurred in the early twentieth century and ( to describe the Events.

B. Terminological applicability of the term "genocide" to events which occurred

during the early twentieth century.

It is clear, from the text of the Convention and related documents and the

travaux preparatoires, that the term genocide may be applied to events that pre-dated the

adoption of the Convention.

The drafters of the Genocide Convention used the term "genocide" to refer

to events that pre-dated the adoption of the Convention. Although Rafael Lemkin did not

coin the term "genocide" until 1943, the text of the Convention and other writings

conclusively establish that he and the other drafters of the Convention understood and

used the word genocide to describe acts perpetrated prior to the Convention's adoption.29

The States Parties to the Convention recognize, in the Convention's preamble, that "at all

periods of history genocide has inflicted great losses on humanity."30

The travaux preparatoires contain numerous references to genocide as a

historical fact. The Cuban delegate stated that "[h]istory revealed innumerable examples

of genocide …"31, while the Egyptian delegate, in arguing against a direct link between

genocide and fascism-nazism, spoke of "instances of genocide [which] were to be found

in the far more distant past."32 The British delegate, who had been the chief British

prosecutor before the Nuremberg Tribunal, spoke of genocide as "a crime already known

in international law, of which history had furnished many examples throughout the

29 Lemkin uses the term to refer, among other things, to "classical examples of wars of

extermination in which nations and groups of the population were completely or almost

completely destroyed." Examples cited include the destruction of Carthage in 146 B.C.; the

destruction of Jerusalem by Titus in 72 A.D.; the religious wars of Islam and the Crusades;

the massacres of the Albigenses and the Wladenses; and the siege of Magdeburg in the Thirty

Years' War. Raphael Lemkin, Axis Rule in Occupied Europe 80 at n. 3 (1944).

30 Genocide Convention, preamble.

31 Travaux Preparatoires, p. 23 (Statement of Mr. Blanco).

32 Id., p. 500. (Statement of Mr. Raafat).

11

centuries."33 The Argentinean delegate referred to genocide as "a crime which, although

it had always been known to exist, had only recently been defined."34

Likewise, Resolution 96(I) of the United Nations General Assembly,

which was passed unanimously and authorized the drafting of the Convention, refers to

"many instances of such crimes of genocide" which "have occurred when racial,

religious, and other groups have been destroyed, entirely, or in part."35

It is clear from the travaux preparatoires that the Committee negotiating

the final text considered and rejected text that would have tied the concept of genocide

more closely to the actions and motivations of the Nazis,36 on the grounds that the

Holocaust was not the first or only instance of genocide in human history.37

C. Applicability of the term "genocide" to the Events.

1. Elements of the Crime of Genocide

While it is not seriously disputed that massacres, deportations and other

crimes were committed against Armenian citizens of the Ottoman Empire in the early

twentieth century, there is disagreement on certain facts, including the number of people

affected and, crucially, the identity and intent of the perpetrators. 38

33 Id., p. 40 (Statement of Sir Hartley Shawcross).

34 Id., p. 28 (Statement of Mr. Bustos Fierro).

35 G.A. Res. 96 (I), U.N. GAOR, 1st Sess., U.N. Doc. A/64/Add.1 (1946) (emphasis added).

36 See Travaux Preparatoires, at p. 9 (Statement of Mr. Bartos), 19 (Statement of Mr. Lachs),

id., p. 30 (Statement of Mr. Prochazka) (referring to the relationship between genocide and

the doctrines of Nazism, fascism and Japanese imperialism); id., p. 501 (Statement of Mr.

Chaumont ("the convention would never have been drafted if it had not been for the crimes

committed under the Nazi and fascist regimes").

37 See Travaux Preparatoires, p. 17 (Statement of Mr. Manini y Ríos)("it was generally known

that the nazi and fascist parties went to extremes of genocidal crime, but ... there was no need

to include [an explicit] qualification [to that effect] in the convention"), p. 24 (Statement of

Mr. Tsien Tai), pp. 489-509, passim. It is clear that Lemkin’s awareness of and research into

the Events also had an important role in animating his advocacy for the adoption of the

Convention. See Samantha Power, “A Problem from Hell:” America and the Age of

Genocide 17-20 (2002).

38 Supra note 2.

12

As a legal matter, to convict a person of the crime of genocide one must

establish certain essential elements. In connection with the establishment of the

International Criminal Court, the Preparatory Commission for the International Criminal

Court has developed an enumeration of four such essential elements, the proof of which

would result in a determination that the events in question constituted genocide as

defined in ICC Statute (which, as noted above, mirrors the text of the Genocide

Convention).39 The four elements of the crime of "genocide by killing" are:

(i) the perpetrator killed (or caused the death of) one or

more persons;

(ii) such person or persons belonged to a particular

national, ethnical, racial or religious group;

(iii) the perpetrator intended to destroy, in whole or in

part, that national, ethnical, racial or religious group, as such; and

(iv) the conduct took place in the context of a manifest

pattern of similar conduct directed against that group or was conduct that

could itself effect such destruction.40

It is important to note that these elements were developed in order to

assess the guilt or innocence of individuals alleged to have perpetrated genocide, a task

which is well beyond the scope of this memorandum. We have been asked to analyze

whether the Convention is applicable to the Events, collectively. This memorandum

therefore proceeds to analyze whether the Events constituted genocide as defined in the

Convention, using the elements of the crime of genocide outlined above as an analytical

tool for this purpose.

2. The Events as genocide within the meaning of the Convention.

There are many and various accounts of the Events, including

contemporary newspaper reports,41 the memoirs of Ottoman42 and foreign43 officials and

39 Finalized Draft Text of the Elements of Crimes, Report of the Preparatory Commission for

the International Criminal Court, Addendum, Part II, U.N. Doc. PCNICC/2000/1/Add.2

(2000), at 6 [hereinafter "Elements of Crimes"]. The analysis set forth herein is limited to the

crime of "genocide by killing." In analyzing whether the Events constituted genocide by other

means (e.g., "genocide by causing serious bodily or mental harm" or "genocide by

deliberately inflicting conditions of life calculated to bring about physical destruction"), one

or more additional elements might have to be proved. Id., at 6-8.

40 Id., at 6.

13

Armenian survivors,44 reports of judicial decisions,45 correspondence and other

documents contained in government archives46 and the work of eminent historians,

beginning with Arnold Toynbee.47 The core facts common to all of the various accounts

41 For example, The New York Times printed numerous articles relating to the Events, which

are collected and reprinted in Richard D. Kloian, The Armenian Genocide: News Accounts

from the American Press, 1915-1922 (3d ed. 2000).

42 See, e.g., Armenian Rebellions and Massacres: Veteran and Eyewitness Accounts in

Armenian Issue: Allegations-Facts, available at http://www.kultur.gov.tr/

portal/tarih_en.asp?belgeno=159.

43 See, e.g., Armin T. Wegner, Armin T. Wegner and the Armenians in Anatolia, 1915: Images

and Testimonies (1996); Stanley Kerr, Lions of Marash: Personal Experiences with American

Near East Relief (1973); Henry H. Riggs, Days of Tragedy in Armenia: Personal Experiences

in Harpoot, 1915-1917 (1997); Leslie A. Davis, The Slaughterhouse Province: An American

Diplomat's Report on the Armenian Genocide of 1915-1917 (1988), Viscount James Bryce

and Arnold J. Toynbee (eds.), The Treatment of the Armenians in the Ottoman Empire, 1915-

1916 (2d ed. 1972). Often cited as well are the accounts of Henry Morgenthau, the American

ambassador to Turkey from 1913 to 1916, who was reported to have frequently and

persitently intervened on behalf of the Armenians with Turkish officials and was instrumental

in bringing international attention to the Events. See, e.g., Morgenthau Intercedes, N.Y.

Times, April 29, 1915, reprinted in Kloian, supra note 41, at 10; Laud Our Ambassador, N.Y.

Times, Sept. 8, 1915, reprinted in Kloian, supra note 41, at 29. Morgenthau included his

account of what he termed "the murder of a nation" in his memoirs, published in 1918.

Henry Morgenthau, Ambassador Morgenthau's Story (1918), at 301 et seq.

44 See, e.g., Abraham Hartunian, Neither to Laugh nor to Weep: A Memoir of the Armenian

Genocide (2d ed. 1986); John Minassian, Many Hills Yet to Climb: Memoirs of an Armenian

Deportee (1986); Donald E. Miller and Lorna Touryan Miller, Survivors: An Oral History of

the Armenian Genocide (1993).

45 See, e.g., Vahakn Dadrian, Genocide as a Problem of National and International Law: The

World War I Armenian Case and its Contemporary Legal Ramifications, 14 Yale. J. Int’l L.

221, 291-315 (1989).

46 For example, documents in the U.S. archives are available in the National Archives and

Records Administration, Record Group 59, Decimal Files 867 and 860J. U.K. archives are

available in the Public Record Office, Foreign Office Records, Class 371. The Republic of

Turkey indicates that the Turkish archives, maintained at the Prime Minstry's State Archives,

are open and available to all. See Important Questions And Answers: Is There Access to the

Ottoman Archives? Are Documents Related [to] Relocation Concealed? in Armenian Issue:

Allegations-Facts, available at http://www.kultur.gov.tr/portal/tarih_en.a...asp?belgeno=253.

47 Supra note 43.

14

of the facts we have reviewed in the course of preparing this memorandum establish that,

in viewing the Events collectively, at least three of the four elements of the crime of

genocide identified in Section II.C.1 of this memorandum occurred during the Events.

First, one or more persons were killed. Second, such persons belonged to a particular

national, ethnical, racial or religious group. Finally, the conduct took place in the context

of a manifest pattern of similar conduct directed against that group.

While the accounts we have reviewed reveal some disagreement on the

intent or motives that animated the perpetrators of the Events, the overwhelming majority

of the accounts conclude that the Events occurred with some level of intent to effect the

destruction of the Armenian communities in the eastern provinces of the Ottoman

Empire, with many claiming that this was the specific intent of the most senior

government officials.48

The Turkish government maintains that no direct evidence has been

presented demonstrating that any Ottoman official sought the destruction of the Ottoman

Armenians.49 In light of the frequent references to the participation of Ottoman officials

in the Events, we wish to highlight that a finding of genocide does not as a legal matter

depend on the participation of state actors. On the contrary, the Genocide Convention

confirms that perpetrators of genocide will be punished whether they are "constitutionally

responsible rulers, public officials or private individuals."50 Thus, it is legally appropriate

to maintain that the Events constituted genocide as defined in the Convention on the basis

of a conclusion that they were perpetrated with the intent of permanently resolving the

48 See e.g, Morgenthau, supra note 43; Descendants of Survivors of the Armenian Genocide and

the Holocaust, 126 Holocaust Scholars Affirm the Incontestable Fact of the Armenian

Genocide and Urge Western Democracies to Officially Recognize It, N.Y. Times, June 9,

2000, at A29 (reproducing a statement "affirming that the World War I Armenian Genocide

is an incontestable historical fact"). We note that many Turkish accounts dispute the

objectivity and authenticity of these accounts and, in particular, insist that the deportations

consisted of preventive measures to relocate certain Armenians who posed a threat, and that

most of the killings were the result of inevitable casualties of the war and of banditry (in other

words, the Events were animated by political and security-related motives or with ordinary

criminal intent, and not with genocidal intent). See, e.g., Ysmet Bynark, Foreword, in

Selected Books: Armenians in Ottoman Turkey (Oct. 30, 1995), available at

http:www.mfa.gov.tr/grupe/eg/eg11/02.htm; Relocation: Attacks on Armenian Convoys and

Measures Taken by the Government, in Armenian Issue: Allegations–Facts, available at

http://www.ermenisorunu.gen.tr/english/rel...n/measures.html.

49 See Armenian Allegations of Genocide: The Issue and the Facts, at

http://www.turkishembassy.org/ governmentpolitics/issuesarmenian.htm/.

50 Genocide Convention, Art. IV.

15

"Armenian question", whether or not this was the official state policy of the Ottoman

Empire.

This memorandum sets forth below certain relevant legal considerations

that bear on the resolution of the crucial issue of genocidal intent.

3. Genocidal Intent.

On its face, the Genocide Convention's reference to "intent" sets it apart

from other crimes under international law. The ICTR and ICTY Statutes define crimes

against humanity, for instance, by referring to acts "committed as part of a widespread

and systematic attack" against certain civilian populations.51 Although it is understood

that the actor must engage purposively in the prohibited conduct (such as killing or

causing serious harm), there is no explicit reference to the actor's intent with respect to

the widespread, systematic character of the attacks.

Genocide, by contrast, requires, at the very least, an awareness on the part

of the actor of the discriminatory nature of his actions. While murder in the context of a

widespread and systematic attack may constitute a crime against humanity, it cannot meet

the legal definition of genocide absent evidence of the perpetrator's intent to kill with the

effect of destroying, in whole or in part, a national, ethnic, racial or religious group as

such. The scope and level of the requisite intent, however, involve complex and evolving

issues of international law.52

The travaux preparatoires report debate on the question of the scope and

level of intent required to commit genocide.53 The adoption of the words "as such" after

the enumeration of protected groups represented a compromise designed to satisfy both

the delegates who favored inclusion of a motive and those who thought it counterproductive.

54 Given this context, the "as such" language is susceptible of both a general

51 ICTR Statute, supra note 5, Art. 3; ICTY Statute, supra note 5, Art. 4.

52 See Payam Akhavan, Contributions of the International Criminal Tribunal for the former

Yugoslavia and Rwanda to Developments of Definitions of Crimes Against Humanity and

Genocide, 94 Am. Soc'y Int'l L. Proc. 279, 282 (2000); Alexander K.A. Greenawalt,

Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation, 99 Colum.

L. Rev. 2259, 2278 (1999).

53 Travaux Preparatoires, pp. 117-139. The term dolus specialis was used to connote this

particular intent. It was repeatedly argued that what distinguished genocide from murder was

the particular intent to destroy a group; as the Brazilian delegate pointed out, "genocide [is]

characterized by the factor of particular intent to destroy a group. In the absence of that

factor, whatever the degree of atrocity of an act and however similar it might be to the acts

described in the convention, that act could still not be called genocide." Id., pp. 81-89.

54 Travaux Preparatoires, pp. 129-139. See also Greenawalt, supra note 52, at 2278.

16

and a stricter, motive-based, interpretation. As the delegate from Siam noted, "there were

two possible interpretations of the words 'as such'; they might mean 'in that the group is a

national, racial, religious, or political group', or 'because the group is a national, racial,

religious or political group.'"55

The judges of the ICTR and ICTY have, on several occasions, been called

upon to consider genocidal intent.56 The decisions thus far have held that a genocide

conviction requires a showing of a particular intent. The judgments have referred to this

intent variously as specific intent, genocidal intent, or dolus specialis.57 These terms

have somewhat divergent meaning in domestic jurisprudence and these decisions have

not always been internally consistent in their discussions of intent. Moreover, the

decisions have essentially been silent on whether a perpetrator must consciously desire

destruction of the group, or whether knowledge that such destruction may ensue in the

course of his actions will be sufficient.58 We note further that the discussion of the

appropriate legal standard for intent is inherently fact-specific and, in light of the factual

55 Travaux Preparatoires, p. 133. The protected groups identified by the Siamese delegate later

changed.

56 See, e.g., Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgment, (Int'l Crim.

Trib. Rwanda, Trial Chamber 1, Sept. 2, 1998), available at http://www.ictr.org/; Prosecutor

v. Clément Kayishema & Obed Ruzindana, Case No. ICTR-95-1-T, Judgment, 1999 WL

33288417 (Int'l Crim. Trib. Rwanda, Trial Chamber II, May 21, 1999); Prosecutor v. Ignace

Bagilishema, Case No. ICTR-95-IA-T, Judgment, (Int'l Crim. Trib. Rwanda, Trial Chamber

1, June 7, 2001), available at http://www.ictr.org; Prosecutor v. Goran Jelisic, Case No.

ICTY-95-10-A, Appeals Judgment (Int'l Crim. Trib. Former Yugoslavia, Appeals Chamber,

July 5, 2001), available at www.un.org/icty/brcko/appeal/judgment/index.htm; Prosecutor v.

Sikirica, Case No. ICTY-95-8-T, Judgment, (Int'l Crim. Trib. Former Yugoslavia, Trial

Chamber III, September 3, 2001), available at www.un.org/icty/sikirica/judgment/indexe.

htm; Prosecutor v. Krstic, Case No. ICTY-98-33, Judgment, (Int'l Crim. Trib. Former

Yugoslavia, Trial Chamber 1, Aug. 2, 2001), available at http://www.un.org/icty/krstic/Trial

C1/judgment/index.htm.

57 In a 300-page judgment issued on September 2, 1998, the Trial Chamber of the ICTR found a

former Rwandan mayor, Jean Paul Akayesu, guilty of various charges of genocide and crimes

against humanity, the first genocide conviction since Nuremberg. Regarding the germane

issue of criminal intent, the Trial Chamber said "[g]enocide is distinct from other crimes

inasmuch as it embodies a special intent or dolus specialis. Special intent of a crime is the

specific intention, required as a constitutive element of the crime, which demands that the

perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of

genocide lies in 'the intent to destroy, in whole or in part, a national, ethnical, racial or

religious group, as such." Prosecutor v. Jean-Paul Akayesu, supra note 56, 498.

58 See, e.g., Prosecutor v. Krstic, supra note 56, 571.

17

disputes on this point, we do not express an opinion on the standard that might be applied

in any particular determination of whether the Events constituted genocide as defined in

the Convention.

D. Conclusion

The crucial issue of genocidal intent is contested, and this legal

memorandum is not intended to definitively resolve particular factual disputes.

Nonetheless, we believe that the most reasonable conclusion to draw from the various

accounts referred to above of the Events is that, notwithstanding the efforts of large

numbers of "righteous Turks"59 who intervened on behalf of the Armenians, at least some

of the perpetrators of the Events knew that the consequence of their actions would be the

destruction, in whole or in part, of the Armenians of eastern Anatolia, as such, or acted

purposively towards this goal, and, therefore, possessed the requisite genocidal intent.

Because the other three elements identified above have been definitively established, the

Events, viewed collectively, can thus be said to include all of the elements of the crime of

genocide as defined in the Convention, and legal scholars as well as historians,

politicians, journalists and other people would be justified in continuing to so describe

them.

*****

59 Paul Glastris, Armenia's History, Turkey's Dilemma, Wash. Post, March 11, 2001, at B01;

Zoryan Institute, Turks Who Saved Armenians: An Introduction (rev. ed.), available at

http://www.zoryaninstitute.org/Table_Of_Co..._turksintro.htm.

 

TURKISH-ARMENIAN RECONCILIATION

COMMISSION

 

STATEMENT

 

"The Turkish Armenian Reconciliation Commission (TARC) requested that

the International Center for Transitional Justice facilitate an independent legal study on the applicability of the 1948 Genocide Convention to events which occurred during the early twentieth century. On February 4, 2003, the International Center for Transitional Justice provided an analysis on the subject. TARC members will meet soon and resume their work for reconciliation".

[MJ]

INTERNATIONAL STUDY AFFIRMS 1915 ARMENIAN GENOCIDE

 

By Emil Danielyan

 

A crucial independent study commissioned by the controversial Turkish-Armenian Reconciliation Commission (TARC) has concluded that the 1915 slaughter of some 1.5 million Armenians in Ottoman Turkey fits the internationally accepted definition of genocide.

 

The research conducted by the International Center for Transitional Justice (ICTJ), a New York-based human rights organization, deals a serious blow to the long-running Turkish policy of genocide denial and could mark another milestone in international recognition of the tragedy. It could also have important ramifications for U.S.-backed efforts to reconcile the two nations.

 

The ICTJ report obtained by RFE/RL on Monday concludes that the 1915 mass killings and deportations of Ottoman Armenians meet the four basic criteria laid out by the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. The most important of them requires the existence of a premeditated policy to destroy, “in whole or in part,” a particular ethnic, religious or racial group.

 

“We believe that the most reasonable conclusion to draw from the various accounts of the [1915] Events is that at least some of the perpetrators of the Events knew that the consequences of their actions would be the destruction, in whole or in part, of the Armenians of eastern Anatolia, as such, or acted purposively towards this goal, and, therefore, possessed the requisite genocidal intent,” ITCJ experts believe.

 

They stress that the massacres therefore “include all of the elements of the crime of genocide as defined in the [uN] Convention, and legal scholars as well as historians, politicians, journalists and other people would be justified in continuing to so describe them.”

 

The publication of the ICTJ’s findings put an unexpected end to the year-long deadlock in the TARC’s activities. The unofficial body made up of ten prominent Armenians and Turks first requested an independent third-party analysis on the applicability of the 1948 UN Convention to the Armenian genocide in December 2001.

 

But shortly afterwards, its four Armenian members issued a statement saying that the commission “is not going to proceed” because the Turks unilaterally told the ICTJ not to go ahead with the study.

 

But as the ICTJ report reveals, the TARC again asked it to look into the highly sensitive matter last July. Furthermore, it emerged that the representatives of the two sides made their cases to the independent experts at a confidential meeting in New York in September. RFE/RL learned that the Turkish side was represented by Gunduz Aktan, a hardline retired diplomat who always strongly denies the genocide.

 

In a brief statement issued on Monday, the TARC members said they “will meet soon and resume their work for reconciliation.” It will be the commission’s first official meeting in more than a year. The commission’s future activities will depend, to a large extent, on the reaction of its Turkish members to the ICTJ’s findings. They could now find it more difficult to claim that the government of the crumbling Ottoman Empire did not seek to wipe out its Armenian population.

 

The ICTJ report makes it clear that although the term “genocide” defined by the 1948 convention is applicable to the bloody events of 1915, the Armenians can not use it to lay “legal, financial or territorial claim” to Turkey. “The Genocide Convention contains no provision mandating its retroactive application,” it explains.

 

Some analysts believe that fear of Armenian compensation claims is a key motive for the Turkish denial of the genocide.

 

Founded in March 2001, the ICTJ is engaged in post-conflict rehabilitation and reconciliation initiatives across the world. Its stated mission is to help transitional countries develop “effective responses to human rights abuse arising from repressive rule, mass atrocity or armed conflict.”

 

The center is headed by Alex Boraine, the former deputy chair of the Truth and Reconciliation Commission in South Africa and currently an adjunct professor at the New York University School of Law.

 

www.armenialiberty.org

[THOTH]

Thanks for this post MJ

 

quote:

---

Originally posted by MJ:

INTERNATIONAL STUDY AFFIRMS 1915 ARMENIAN GENOCIDE

 

By Emil Danielyan

 

A crucial independent study commissioned by the controversial Turkish-Armenian Reconciliation Commission (TARC) has concluded that the 1915 slaughter of some 1.5 million Armenians in Ottoman Turkey fits the internationally accepted definition of genocide.

 

...

 

The ICTJ report makes it clear that although the term “genocide” defined by the 1948 convention is applicable to the bloody events of 1915, the Armenians can not use it to lay “legal, financial or territorial claim” to Turkey. “The Genocide Convention contains no provision mandating its retroactive application,” it explains.[/url]

---

Fascinating. This (top part) should get more publicity - and perhaps in time it shall. The last bit (no claims) strikes me as odd however. Even though I don't believe that territorial claims are possible - I certainly think that individuals/families etc should be entitled to something (even if symbolic...or composed of some kind of property concessions or what not). And I certainly don't think that this organization can judge the appropriatness of such.

 

I look foreward to finding out more about this study/report - including specific findings, evidence used (and what if anything was discarded) and more about the memebers - who are these folkks - how scholarly/how legit - etc...

[MJ]

[Raffi the Illuminator]

Clearly in my humble opinion, either the time for dialogue has not arrived as of yet, or it is long gone.

 

Perhaps I'm just too emotional as of right now and still very angry and hurt by comments that have been made by some Turks about myself and about other Armenians as well.

[aman]

I would not pay attention to insults by anyone. Those who insult are not capable of engaging in dialogue and communication. There are people like that in any nation. It is unfortunate but real. I am sorry for those who does not have anything else to say but insults. What a shame...what a shame.