A WOUND NOT HEALED
Hans Wilhelm Longva

Today's Zaman
April 15 2010
Turkey

The concept of genocide is relatively new both in international law
and in international politics.

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The term "genocide" was first introduced in 1944 by Raphael Lemkin,
a Polish-Jewish lawyer who had immigrated to the United States in
1941, in his book "Axis Rule in Occupied Europe: Laws of Occupation,
Analysis of Government, Proposals for Redress." In constructing the
word "genocide" Lemkin combined the word genos, Greek for family,
tribe and race, with the word cide, Latin for killing.

It is worth noting that in the immediate aftermath of World War
II neither the charters establishing the Nuremberg and the Tokyo
tribunals nor the final judgments by these two tribunals contained
any reference to the term "genocide." However, the new concept of
"genocide" took hold extraordinarily fast in both international law
and politics. The term was used in the indictment before the Nuremberg
Tribunal. On Dec. 11, 1946, the United Nations General Assembly,
at its first session, unanimously adopted its Resolution 96 (I) on
the Crime of Genocide. Only two years later, on Dec. 9, 1948, the
Convention on the Prevention and Punishment of the Crime of Genocide
was adopted unanimously by the General Assembly. Thus, it took only
four years from the first introduction of the term "genocide" by
Lemkin in 1944 until the adoption of the genocide convention in 1948.

This must, of course, be seen against the background of the impact
of the appalling crimes committed by Nazi Germany before and during
World War II, notably the Holocaust.

It took an equally short time from the adoption of the genocide
convention until the prohibition of the crime of genocide was
recognized as part of customary international law and therefore
binding on all states, including states not parties to the convention.

At the request of the General Assembly on May 28, 1951 the
International Court of Justice rendered an Advisory Opinion on
Reservations to the Convention on Genocide where it stated inter
alia that "the principles underlying the convention are principles
which are recognized by civilized nations as binding on states,
even without any conventional obligation."

However, it was not until the tragic events in Yugoslavia and Rwanda in
the 1990s that courts, both at the national and international level,
began to apply the genocide convention. Article 6 of the genocide
convention provides for the prosecution of genocide inter alia
"by such international penal tribunal as may have jurisdiction with
respect to those Contracting Parties which shall have accepted its
jurisdiction." Acting under Chapter VII of the Charter of the United
Nations, in 1993 the Security Council established the International
Criminal Tribunal for the former Yugoslavia (ICTY) and in 1994 the
International Criminal Tribunal for Rwanda (ICTR). Both these tribunals
have the power to prosecute persons accused of committing, conspiracy
to commit, direct and public incitement to commit or attempts to
commit as well as complicity in genocide. On July 17, 1998 a diplomatic
conference convened for the purpose in Rome, adopted the Rome Statute
of the International Criminal Court (ICC). The Rome Statute establishes
the jurisdiction of the ICC with respect to genocide.

The genocide convention, the statutes of the ICTY and the ICTR as well
as the Rome Statute of the ICC have essentially identical definitions
of genocide. In Article 2 of the genocide convention this definition
reads as follows:

"In the present Convention, genocide means any of the following acts
committed with the intent to destroy, in whole or in part a national,
ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on a 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."

This definition contains both an objective (material) element, namely
certain acts, and a subjective (mental) element, namely a certain
intent. Both must be documented in order to establish that genocide
has taken place. The objective element of genocide consists of,
and is limited to, the acts enumerated in Article 2 of the genocide
convention. Unless at least one of these acts can be documented,
there is no genocide. The subjective element of genocide consists of
the "intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such." In order to qualify as genocide,
the acts enumerated in Article 2 of the genocide convention have to be
carried out with such an intent. In the following I will refer to the
subjective element in the definition of genocide as "genocidal intent."

The element of genocidal intent

The genocidal intent is a key element in the definition. Without
genocidal intent none of the acts enumerated in Article 2 of the
genocide convention will constitute genocide. Instead they may
constitute other international crimes, such as war crimes, crimes
against humanity or grave breaches of the Geneva Conventions.

The individual is not protected as such under the genocide convention,
only as a member of a protected group. "National, ethnical, racial
or religious groups" are the protected groups under the genocide
convention.

The genocide convention focuses on individual criminal responsibility.

State responsibility for genocide is mentioned only once in the
convention, namely in Article 9, which reads: "Disputes between the
Contracting Parties relating to the interpretation, application or
fulfillment of the present Convention, including those relating to
the responsibility of a State for genocide or any of the other acts
enumerated in Article 3, shall be submitted to the International Court
of Justice at the request of any of the parties to the dispute." In its
Judgment of Feb. 26, 2007 in the case concerning the Application of the
Convention on the Prevention and Punishment of the Crime of Genocide
submitted by Bosnia and Herzegovina against Serbia and Montenegro
(the Bosnian Genocide Case), the International Court of Justice makes
the following statement concerning state responsibility for genocide
(paragraph 179): "The Court affirms that the Contracting Parties are
bound by the obligation under the Convention not to commit, through
their organs or persons or groups whose conduct is attributable to
them, genocide or other acts enumerated in Article III. Thus, if
an organ of the State, or a person or group whose acts are legally
attributable to the State, commits any of the acts proscribed by
Article III of the Convention, the international responsibility of
that State is incurred." This view of the majority of judges was
controversial in the court. A minority of one-third of the judges
was of the opinion that genocide, as an international crime, cannot
be committed by states, only by individuals.

Both the objective and the subjective elements in the legal definition
of genocide are open to interpretation. Consequently, in many concrete
cases where genocide is alleged there will be room for more than one
opinion as to whether or not genocide has occurred.

With respect to the atrocities committed against the Ottoman Armenians
in Eastern Anatolia during and after World War I, I would, as a point
of departure, like to note that in legal terms it is problematic to use
a term introduced in 1944 and given a legal definition for the first
time in 1948 about events that took place at a much earlier time. That
being said, I will nevertheless try to make some assessments of the
tragic fate of the Ottoman Armenians in Eastern Anatolia during this
period in the light of the definition of genocide in present day
international law.

Protection under the genocide convention

There can be no doubt that the Ottoman Armenians would have been a
protected group under the genocide convention if that convention had
existed at the time. Furthermore, it is well documented that at least
two of the acts which constitute objective elements of today's legal
definition of genocide, namely "killing of members of the group" and
"causing serious bodily or mental harm to members of the group," did
take place against the Ottoman Armenians in Eastern Anatolia during
and after World War I. Both the massacres and the deportation under
appalling circumstances of the Ottoman Armenians in Eastern Anatolia
are well-documented historical facts. The number of Ottoman Armenian
victims is disputed. While Turkish sources claim the number of Ottoman
Armenians killed to be somewhere between 300,000 and 600,000, Armenian
sources claim the number to be up to 1.5 million. Whatever the truth
about these numbers may be, there can be no doubt that the objective
element in the present day legal definition of genocide is satisfied.

Also Turkey appears to accept as a historical fact that measures which
included both killings and deportations were taken against the Ottoman
Armenians in Eastern Anatolia during and after World War I. There is
disagreement between Turkey and Armenia as to the scope and context of
these measures. First and foremost there is disagreement as to whether
or not the measures were carried out with a genocidal intent, i.e.,
whether they were committed with the intent to destroy, in whole or
in part, the Ottoman Armenians as such. According to the Armenians
the answer to this question is yes; according to the Turks the answer
is no.

Based on available documentation, the answer to the question of whether
or not the measures against the Ottoman Armenians were carried out
with genocidal intent is far from clear. What seems to be clear is
that the Ottoman authorities were pursuing with tragic consequences
a policy which today would have been described as "ethnic cleansing"
against the Ottoman Armenians in Eastern Anatolia. But even with the
most tragic consequences, a policy of "ethnic cleansing" does not
necessarily amount to genocide. In the preamble of its Resolution
47/121 on the situation in Bosnia and Herzegovina of Dec. 18, 1992,
the United Nations General Assembly referred to "the abhorrent policy
of 'ethnic cleansing,' which is a form of genocide." However, in
its judgment in the Bosnian Genocide Case the International Court of
Justice takes issue with this view. In the judgment (paragraph 190)
the court states inter alia: "Neither the intent, as a matter of
policy, to render an area 'ethnically homogeneous,' nor the operations
that may be carried out to implement such policy, can as such be
designated as genocide: the intent that characterizes genocide is
'to destroy, in whole or in part' a particular group, and deportation
or displacement of the members of a group, even if effected by force,
is not necessarily equivalent to destruction of that group, nor is
such destruction an automatic consequence of the displacement.

This is not to say that acts described as 'ethnic cleansing' may
never constitute genocide, if they are such as to be characterized
as, for example, 'deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or
in part,' contrary to Article II, paragraph (c), of the Convention,
provided that such action is carried out with the necessary specific
intent (dolus specialis), that is to say with a view to the destruction
of the group, as distinct from its removal from the region."

There is room for different views as to whether or not the measures
taken by the Ottoman authorities with such tragic consequences against
the Ottoman Armenians in Eastern Anatolia amounted to genocide. The
decisive question is whether or not the measures were carried out with
a view to the destruction, in whole or in part, of this population
as such, as distinct from their removal from the region. Further
historical research, notably in the Ottoman archives, may throw more
light on this issue.

Armenian identity and nation building

The perception of the Armenian tragedy in Eastern Anatolia during and
after World War I as a genocide is today an important element both in
the Armenian national identity and in Armenian nation building. The
concept of the "Armenian genocide" is being used in a historical
and political rather than in a legal perspective. It has become a
catchword that reveals deep scars in the Armenian collective memory.

Learned legal discussions on the issue of genocidal intent are of
little or no relevance to the perception by the Armenians of one of
the most defining moments in their history. One should be sensitive
to Armenian feelings concerning the "Armenian genocide." On the other
hand one should also have an open mind when it comes to the Turkish
version of these tragic events. Armenians and Turks have a long common
history. World War I and its aftermath became a defining moment in the
history of both peoples. In their subsequent nation-building processes
both Armenians and Turks have had a selective approach to their common
history and often contradictory interpretations of historical events.

The distinction between historical facts and national myths is often
blurred. To a large extent today's conflict between Armenians and
Turks is a conflict over their common history. Their disagreement
concerning the tragic events in Eastern Anatolia during and after
World War I is a part of this picture.

There has recently been a very positive development on this issue. On
Oct. 10, 2009 Turkey and Armenia signed two protocols in Zurich,
one on the development of relations and one on the establishment of
diplomatic relations. In the protocol on development of relations they
agreed inter alia to "implement a dialogue on the historical dimension
with the aim to restore mutual confidence between the two nations,
including an impartial scientific examination of the historical
records and archives to define existing problems and formulate
recommendations." The protocols have met with resistance in both
Armenia and Turkey, and have not yet been ratified by the Armenian
and Turkish parliaments. The agreements reached between Armenia and
Turkey deserve our support. It is now important to look to the future.

Armenia and Turkey now have a unique opportunity to create a new basis
for bilateral relations and for regional development, from which both
countries stand to benefit.

The Armenian tragedy during and after World War I is today history
and should be left to historians rather than to politicians. Many
activists among the Armenian diaspora communities have pushed for
formal recognition of the "Armenian genocide" from various governments
and parliaments around the world. This is a disturbing approach.

History should be written on the basis of historical research and
not on the basis of political decisions. The approach adopted by the
governments of Armenia and Turkey in the protocol on development of
relations, namely to set up a commission of historians to address
this issue, deserves our support.

As already pointed out, in legal terms it is problematic to use a
term that was given a legal definition for the first time in 1948
about events that took place at a much earlier time. One way some
countries have been dealing with this problem has been to enact
national legislation imposing criminal sanctions on denial of acts
of genocide and then to apply such criminal sanctions to "denial"
of the "Armenian genocide." During the last two decades the following
countries have established denial of genocide as a criminal offense:
Austria, Belgium, the Czech Republic, France, Germany, Israel,
Liechtenstein, Luxemburg, Poland, Romania and Switzerland. As we
have already seen, there is room for different views as to whether
or not the measures by the Ottoman authorities against the Ottoman
Armenians during World War I amounted to genocide. Further historical
research may throw more light on this issue. Under these circumstances
the application of criminal sanctions to "denial" of the "Armenian
genocide" is very disturbing. It may easily interfere with both
freedom of expression, freedom of information and freedom of research.

*Hans Wilhelm Longva is a former ambassador of Norway in Ankara and
is now an Ambassadeur en Mission Spéciale in the Legal Department of
the Norwegian Foreign Ministry. The opinions expressed in this paper
are those of the author and do not necessarily reflect the opinions
of the Norwegian Ministry of Foreign Affairs.