THE CONSTANTINOPLE WAR CRIMES TRIALS: THE LEGAL RESPONSE TO THE ARMENIAN GENOCIDE
by Vache Thomassian

Haytoug
http://www.haytoug.org/3097/the-constantinople-war-crimes-trials-the-legal-response-to-the-armenian-genocide
June 29 2011

As a result of the world's inability to criminally punish the
perpetrators of the Armenian Genocide, the Ninth World Congress of
the Armenian Revolutionary Federation made the decision to track down
and execute the most culpable Ottoman leaders in a covert undertaking
called Operation Nemesis. By the end of 1922 dozens of top Turkish
leaders were extra-judicially brought to justice.

Understanding the chain of events which led to Nemesis offers important
insight to the current difficulties faced by Armenians to achieve
reparations and restitution for the crimes committed by Ottoman Turkey.

Post World War I

As early as May of 1915, the Allied powers formally accused the
Ottoman government of crimes against humanity (a term which would be
made infamous thirty years later following the Holocaust). However,
following World War I, France focused its outrage on Germany and
pursued rapprochement with the Turks. After the Bolshevik Revolution
in 1917, Russia lost all interest in bringing the Young Turks to
justice. And despite the well-documented and harrowing accounts
of American diplomats, including Ambassador Henry Morgenthau Sr.,
America did not take serious steps to punish murders that killed
non-Americans. More than any other Allied Power, Britain took the
massacre of Armenians seriously.

In 1918, Britain had an occupying force of over a million soldiers in
the Ottoman Empire which allowed it to exert extensive pressure on the
post-war government of Sultan Mehmet VI. Furthermore, the developed
British legal system wanted to hold individual members of Ottoman
leadership criminally responsible for war crimes. The Sultan, however,
feared that if he took large-scale action to prosecute the Young Turks
it would provoke a nationalist revolution where he would be overthrown.

Turkish Courts-Martial

In 1919 under British pressure, the Sultan ordered domestic Turkish
courts-martial to try Ittihadist (Committee of Union and Progress)
leaders of the Ottoman Empire. By April, over 100 top Turkish
officials were under arrest. In custody were the grand vizier,
the sheikh ul-Islam, the president of the council of state, a former
director of intelligence, the commander of the garrison at Yozgat (the
site of some of the most heinous Armenian massacres), several former
valis (provincial governors) from Smyrna, Bogazlian, Mosul, Broussa,
and Diarbekir, the ministers of justice and public instruction,
along with dozens of others. Subsequently four major trials began:
for Armenian massacres and deportations in Yozgat and in Trebizond,
of Ittihadist leaders, and finally for wartime Turkish cabinet members.

There were lesser trials for atrocities in Harput, Mosul, Baiburt
and Erzinjan. More trials for atrocities in Adana, Aleppo, Bitlis,
Diarbekir, Erzerum, Marash, and Van were planned but never held.

The first verdicts handed down by the tribunals found Major Tevfik
Bey, commander of the Yozgat police, and Yozgat lieutenant governor
Kemal Bey guilty of organizing deportations, murder, pillage, robbery
and crimes against humanity and civilization. Tevfik was sentenced to
fifteen years of hard labor and Kemal to death. Kemal Bey's funeral
became a rallying point for Turkish nationalists who were still not
convinced Turks had done wrong during the war and were insulted that
punishments were being doled out for killing Christians.

The courts-martial continued against prominent leaders including
Said Halim Pasha, as well as those who had fled to Germany, including
Talaat and Enver, who were tried and sentenced to death in absentia.

The indictment of Talaat and Enver read in part:

"The disaster visiting the Armenians was not a local or isolated
event. It was the result of premeditated decision taken by a central
body; and the immolations and excesses which took place were based
on oral and written orders issued by the central body."

At the same time, politics began destroying the domestic tribunals.

The British army presence shrank by over two-thirds-along with its
authority. As dozens of the accused Turks began being released, the
British gave up on the Ottoman trials and decided to take custody of
sixty-eight of the most prominent prisoners who were guilty of the
most heinous crimes and transfer them to a British detention center
in Malta. This left the Turkish courts-martial a toothless farce.

Malta International Tribunals

After taking custody of the prisoners, the British assumed that they
could implement British-style trials to attain a just conclusion. The
idea of having show trials or summarily executing the prisoners was
dismissed outright. However, an unusual problem presented itself:
the Armenians were slaughtered en masse, but the massacres were
carried out under Ottoman sovereignty and not under British law. Since
international law had not yet developed, a new kind of criminal law
was needed: a crime against humanity (this same problem flustered
the planners of Nuremberg).

Unfortunately, the British were slow to set up tribunals even after the
signing of the Treaty of Sevres in August 1920, which included five
articles on war crimes including language calling for Turks "guilty
of criminal acts [to be] brought before the military tribunals"
and even carved out a new independent Armenian state. The British
were left in a quagmire, not wanting to release the prisoners and
not having the political will to prosecute.

As Mustafa Kemal Ataturk's nationalist revolt gained strength,
defeating French troops in Cilicia, the British began cutting their
losses. By 1920, War Secretary Winston Churchill was clearly weary
of the entire issue. He wanted to make sure that Ataturk would not
be pushed into the arms of the Soviet Union. When pressed to choose
between prosecuting war criminals and protecting British soldiers,
Churchill did not hesitate to advocate choosing the latter.

The final straw came in August of 1921 when Ataturk's nationalists took
a group of 29 Britons hostage and demanded the release of all Turkish
prisoners who remained in Malta jails. All fifty-nine remaining Turks
in custody were subsequently freed. Finally, as a further insult,
the Treaty of Lausanne was signed in July 1923 by Ataturk, containing
no clauses on war crimes tribunals and no mention of an independent
Armenia. British Prime Minister Lloyd George referred to the treaty
as an "abject, cowardly and infamous surrender."

In Comparison with Nuremberg

The lessons learned from the failed attempts of international
justice following World War I, along with the political commitment
to punish wartime aggression led to the Nuremberg trials, criminally
prosecuting the leadership of Nazi Germany. Henry Morgenthau Jr. (son
of Ottoman-era US Ambassador Henry Morgenthau Sr.) led calls to
summarily execute all top Nazi leaders without any trials. However,
the plan set forth by War Secretary Henry Stimson to put the criminals
on trial won out.

The Allied effort (led by the United States), to punish the Nazis
was undertaken mostly out for retribution for the Nazi instigation of
the war, rather than just punishing the perpetrators of the Holocaust.

While the intention was to punish the Nazis for starting the war, the
legacy left by the trials is that it was an effort to punish crimes
against humanity, namely the Holocaust. By 1963 over 2000 Germans
were sentenced, nearly 700 to death. These trials have subsequently
led to the 1948 adoption of the UN Genocide Convention as well as
the later creation of the International Criminal Court.

Aftermath

Had the war crimes tribunals held in Constantinople been given the
opportunity to uncover evidence and document high-level testimony,
as was stipulated by the Treaty of Sevres, it would have been
significantly more difficult for subsequent Turkish governments
to deny, distort or minimize Turkish culpability for the Armenian
Genocide. For Britain, it was in their strategic interest to
leave Constantinople. For Ataturk, nationalist fervor led to the
establishment of the Turkish Republic on the blood of murdered
Armenians. For the Armenians, abandoned by the international community,
justice became an elusive concept.

Unlike Germany, whose Nazi-era leaders were held criminally responsible
and punished, the Turkish Republic has never confronted the Armenian
Genocide. In the short-run, the lack of adequate criminal prosecution
of Young Turk leaders following the Armenian Genocide led to vigilante
justice to preserve Armenian dignity. In the long-run it has caused
decades of denial, and has given a path for the successor state to
avoid reparations. However, during the past five decades, Armenians
worldwide have persevered to attain global recognition of the Armenian
Genocide. While the perpetrator generation of Turks may have escaped
justice, what remains is the civil and territorial compensation to
the Armenian people from the benefactors of Genocide.