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ICJ AND ARMENIAN GENOCIDE DISPUTE
Cenap Cakmak
Global Politician
http://globalpolitician.com/24185-armen ia-genocide
Feb 28 2008
NY
Newspapers have reported that Turkey readies to take the longstanding
Armenian Genocide dispute to the International Court of Justice
(ICJ), the UN-affiliated judicial institution authorized to deal with
interstate disagreements. In consideration of the growing problem
in regards to the recognition of the so-called Armenian genocide by
a number of parliaments allegedly committed by Turkish authorities
in early 1900s, Turkey has decided to prove in reliance on a global
court's judgment that the events may not be viewed as repercussions
of the deliberative acts to destroy or eliminate a certain ethnic or
religious group in part or as a whole.
The decision should not be taken as a surprise simply because Turkey
has repeatedly publicized its intention to bring the case to the
sphere of international law, further asserting that the recognition
of the genocide in some countries was of political character. The
projected action to make the ICJ involved in the matter may generate
some positive results for Turkey; but it will not be a remedy for
its longtime reluctance to address the problem.
Above all, the so-called Armenian genocide enjoys recognition not
only by some states but also by the academic community. While this
does not prove the deaths in early 1900s constitute crime of genocide,
it will not be that easy to change the established prejudices. Second,
not always a court's ruling is required to call certain acts as part
of genocide. Third, the ICJ's decision on the matter will be legally
binding depending on the agreement by the parties; but it will remain
at least partially illegitimate given that its image was seriously
undermined due to its recent decision on the Bosnian Genocide. The
ICJ was blamed by the international community for adopting a timid
approach in this case to exonerate Serbia of the crimes committed in
the Serbian part of Bosnia and Herzegovina.
A disputed genocide?
>From an international law perspective, the alleged Armenian genocide
is certainly disputed simply because the allegations are not based
on legal verdicts by a competent international judicial institution.
However, what Turkey is dealing with is not a pure legal problem that
needs to be resolved by international legal institutions.
For a number of states, and many international law scholars and
historians, whether the deaths in early 1900s constitute commission
of the crime of genocide is not disputable; rather, only what should
be done as part of reparation and remedy is a matter of discussion.
Parliaments of the states which recognize the Armenian genocide did not
seek any ruling by a competent international organization; instead,
they relied on the literature of genocide studies and were strongly
influenced by the efforts of the Armenian lobbies. The relevant
literature a priori accepts that a large Armenian population was
subjected to a genocidal campaign by the Ottoman State in 1915 and
there is no argument about it.
Even the introductory legal textbooks cite the Armenian Genocide
as the first genocide committed of the twentieth century, further
noting that the failure of the international community to deal with
it resulted in commission of similar subsequent campaigns. There are
even assertions that attribute Hitler's decision to annihilate the Jews
to this failure given that he, in reference to the Armenian genocide,
allegedly said nobody remembered the Armenians.
The minds are already set to the assumption that Armenians suffered
from a brutal campaign of mass killing; it will not be easy to change
this assumption through a judgment by the ICJ. This does not suggest
that Turkey should not resort to this option; but not much should be
expected of such an action.
Does recognition of genocide require a judicial verdict?
The ICJ's involvement in the dispute appears to be appealing to
the Turkish authorities because of the assumption that recognition
of genocide requires a legal decision delivered by a competent
international (or national) judicial institution. This is undoubtedly
true from a legal standpoint. Yet this does not mean that states or
scholars are barred from describing a particular situation as genocide
in the absence of such a decision. There is no legal authority or
instrument that prohibits recognition of a case as genocide unless
a competent international judicial body confirms that it is indeed
genocide.
There are examples whereby states have described a particular situation
as genocide without a legal ruling. The US administration as well
as the US Congress defined the situation in Darfur region of Sudan
as genocide. While the case has been referred to the International
Criminal Court (ICC) whose chief prosecutor has decided to initiate
an investigation, there is no legal ruling confirming the acts in the
region may be considered genocide. The US position in this particular
case is praised by civil society organizations and humanitarian
assistance institutions which also strongly criticize the European
states and the UN because of their reluctance to recognize the crime
of genocide in Darfur.
States are usually hesitant to recognize genocide because of probable
obligations under the Convention on the Prevention and Punishment
of the Crime of Genocide where the parties "undertake to prevent
and to punish" the crime (article 1). But the Armenian case may be
considered an exception because it has already (and allegedly) been
committed and there is no need for preventive action; therefore, it
is easy for the states to recognize this genocide because it creates
no obligation under the said Convention.
ICJ's eroded image and Armenian genocide
Turkish authorities selected the ICJ as the competent international
judicial institution to deal with the dispute on the so-called
Armenian genocide. This might seem a wise move because Turkey would
reinforce its position the Court decides that the deaths in 1915 were
not genocide. However, such a decision will not end the discussion due
to the ICJ's eroded image. The Court's recent decision on the Bosnian
genocide has severely been criticized by scholars and opinion leaders
because it was viewed as an attempt to save Serbia from liability
and accountability under international law.
It should be recalled that some Turkish columnists welcomed the
decision, asserting that the Court would make a similar decision with
regard to a future case in relation to the alleged Armenian genocide.
This was actually not something that Turks should welcome; the ICJ's
image has been undermined by this shocking decision. It is no longer
a respected and highly legitimate international institution whose
judgment will resolve a highly controversial dispute.
>From a legal standpoint, such a decision will surely be binding over
the parties to the dispute; but this will not end the discussions
and further political actions as part of recognizing the Armenian
genocide. In other words, it is hard to believe that the parliaments
describing the 1915 events as genocide will review their decisions
based on the ICJ ruling and that scholars who agree that Ottoman Turks
subjected the Armenian population to a brutal genocidal campaign will
change their minds simply because the ICJ decided it was not genocide.
That being said, there seems to be no option that Turkey could rely
on other than taking the case to the ICJ at the present time.
Turkey's long reluctance and indifference is the primary reason for
why the Armenian lobbies has made progress in ensuring recognition
of the alleged Armenian genocide. But this is a past matter; and at
the present time, reliance on international adjudication seems to be
best policy option for Turkey.
Dr. Cenap Cakmak has a Ph.D. from Rutgers University and is a Professor
of International Law at Mugla University Turkey.
Cenap Cakmak
Global Politician
http://globalpolitician.com/24185-armen ia-genocide
Feb 28 2008
NY
Newspapers have reported that Turkey readies to take the longstanding
Armenian Genocide dispute to the International Court of Justice
(ICJ), the UN-affiliated judicial institution authorized to deal with
interstate disagreements. In consideration of the growing problem
in regards to the recognition of the so-called Armenian genocide by
a number of parliaments allegedly committed by Turkish authorities
in early 1900s, Turkey has decided to prove in reliance on a global
court's judgment that the events may not be viewed as repercussions
of the deliberative acts to destroy or eliminate a certain ethnic or
religious group in part or as a whole.
The decision should not be taken as a surprise simply because Turkey
has repeatedly publicized its intention to bring the case to the
sphere of international law, further asserting that the recognition
of the genocide in some countries was of political character. The
projected action to make the ICJ involved in the matter may generate
some positive results for Turkey; but it will not be a remedy for
its longtime reluctance to address the problem.
Above all, the so-called Armenian genocide enjoys recognition not
only by some states but also by the academic community. While this
does not prove the deaths in early 1900s constitute crime of genocide,
it will not be that easy to change the established prejudices. Second,
not always a court's ruling is required to call certain acts as part
of genocide. Third, the ICJ's decision on the matter will be legally
binding depending on the agreement by the parties; but it will remain
at least partially illegitimate given that its image was seriously
undermined due to its recent decision on the Bosnian Genocide. The
ICJ was blamed by the international community for adopting a timid
approach in this case to exonerate Serbia of the crimes committed in
the Serbian part of Bosnia and Herzegovina.
A disputed genocide?
>From an international law perspective, the alleged Armenian genocide
is certainly disputed simply because the allegations are not based
on legal verdicts by a competent international judicial institution.
However, what Turkey is dealing with is not a pure legal problem that
needs to be resolved by international legal institutions.
For a number of states, and many international law scholars and
historians, whether the deaths in early 1900s constitute commission
of the crime of genocide is not disputable; rather, only what should
be done as part of reparation and remedy is a matter of discussion.
Parliaments of the states which recognize the Armenian genocide did not
seek any ruling by a competent international organization; instead,
they relied on the literature of genocide studies and were strongly
influenced by the efforts of the Armenian lobbies. The relevant
literature a priori accepts that a large Armenian population was
subjected to a genocidal campaign by the Ottoman State in 1915 and
there is no argument about it.
Even the introductory legal textbooks cite the Armenian Genocide
as the first genocide committed of the twentieth century, further
noting that the failure of the international community to deal with
it resulted in commission of similar subsequent campaigns. There are
even assertions that attribute Hitler's decision to annihilate the Jews
to this failure given that he, in reference to the Armenian genocide,
allegedly said nobody remembered the Armenians.
The minds are already set to the assumption that Armenians suffered
from a brutal campaign of mass killing; it will not be easy to change
this assumption through a judgment by the ICJ. This does not suggest
that Turkey should not resort to this option; but not much should be
expected of such an action.
Does recognition of genocide require a judicial verdict?
The ICJ's involvement in the dispute appears to be appealing to
the Turkish authorities because of the assumption that recognition
of genocide requires a legal decision delivered by a competent
international (or national) judicial institution. This is undoubtedly
true from a legal standpoint. Yet this does not mean that states or
scholars are barred from describing a particular situation as genocide
in the absence of such a decision. There is no legal authority or
instrument that prohibits recognition of a case as genocide unless
a competent international judicial body confirms that it is indeed
genocide.
There are examples whereby states have described a particular situation
as genocide without a legal ruling. The US administration as well
as the US Congress defined the situation in Darfur region of Sudan
as genocide. While the case has been referred to the International
Criminal Court (ICC) whose chief prosecutor has decided to initiate
an investigation, there is no legal ruling confirming the acts in the
region may be considered genocide. The US position in this particular
case is praised by civil society organizations and humanitarian
assistance institutions which also strongly criticize the European
states and the UN because of their reluctance to recognize the crime
of genocide in Darfur.
States are usually hesitant to recognize genocide because of probable
obligations under the Convention on the Prevention and Punishment
of the Crime of Genocide where the parties "undertake to prevent
and to punish" the crime (article 1). But the Armenian case may be
considered an exception because it has already (and allegedly) been
committed and there is no need for preventive action; therefore, it
is easy for the states to recognize this genocide because it creates
no obligation under the said Convention.
ICJ's eroded image and Armenian genocide
Turkish authorities selected the ICJ as the competent international
judicial institution to deal with the dispute on the so-called
Armenian genocide. This might seem a wise move because Turkey would
reinforce its position the Court decides that the deaths in 1915 were
not genocide. However, such a decision will not end the discussion due
to the ICJ's eroded image. The Court's recent decision on the Bosnian
genocide has severely been criticized by scholars and opinion leaders
because it was viewed as an attempt to save Serbia from liability
and accountability under international law.
It should be recalled that some Turkish columnists welcomed the
decision, asserting that the Court would make a similar decision with
regard to a future case in relation to the alleged Armenian genocide.
This was actually not something that Turks should welcome; the ICJ's
image has been undermined by this shocking decision. It is no longer
a respected and highly legitimate international institution whose
judgment will resolve a highly controversial dispute.
>From a legal standpoint, such a decision will surely be binding over
the parties to the dispute; but this will not end the discussions
and further political actions as part of recognizing the Armenian
genocide. In other words, it is hard to believe that the parliaments
describing the 1915 events as genocide will review their decisions
based on the ICJ ruling and that scholars who agree that Ottoman Turks
subjected the Armenian population to a brutal genocidal campaign will
change their minds simply because the ICJ decided it was not genocide.
That being said, there seems to be no option that Turkey could rely
on other than taking the case to the ICJ at the present time.
Turkey's long reluctance and indifference is the primary reason for
why the Armenian lobbies has made progress in ensuring recognition
of the alleged Armenian genocide. But this is a past matter; and at
the present time, reliance on international adjudication seems to be
best policy option for Turkey.
Dr. Cenap Cakmak has a Ph.D. from Rutgers University and is a Professor
of International Law at Mugla University Turkey.