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The Armenian Cause And International Law

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  • The Armenian Cause And International Law

    THE ARMENIAN CAUSE AND INTERNATIONAL LAW
    By Alfred de Zayas

    AZG DAILY
    02-06-2011

    Murder has been a sin since Cain killed Abel, long before the first
    attempts by lawyers to codify penal law, before the Hammurabi and
    other ancient codes. More fundamentally, murder is a crime by virtue
    of natural law, which is prior to and superior to positivistic law.

    Crimes against humanity and civilization were crimes before the
    British, French and Russian note condemned the Armenian massacres
    in 1915. Genocide was a crime before Raphael Lemkin coined the term
    in 1944.

    According to article 38 of the Statute of the International Court of
    Justice, general principles of law are a principal source of law. Not
    only positivistic law - not only treaties, protocols and charters - but
    also the immanent principles of law are sources of law before the ICJ
    and can be invoked. Among such principles are "ex injuria non oritur
    jus" which lays down the rule that out of a violation of law no new
    law can emerge and no rights can be derived. This is a basic principle
    of justice - and of common sense. Another general principle of law is
    "ubi jus, ibi remedium", where there is law, there is also a remedy,
    in other words, where there has been a violation of law, there must
    be restitution to the victims. This principle was reaffirmed by the
    Permanent Court of International Justice in its famous judgement in
    the Chorzow Factory Case in 1928. Another general principle is that
    the thief cannot keep the fruits of the crime. Another principle
    stipulates that the law must be applied in good faith, uniformly,
    not selectively. Thus, there is no international law a la carte.

    And yet there are those who claim that the Armenians have no
    justiciable rights, because the Genocide Convention was only adopted
    1948, more than 30 years after the Armenian Genocide, and because
    treaties are not normally applied retroactively. This, of course,
    is a fallacy, because the Genocide Convention was drafted and adopted
    precisely in the light of the Armenian genocide and in the light of
    the Holocaust. Not only the Armenian Genocide but also the Holocaust
    predated the Convention, and no one would question the legitimacy
    of the claims of the survivors and descendants of the victims of
    the Holocaust, simply because the Nazi atrocities were committed
    before the entry into force of the Genocide convention. Moreover,
    this argumentation is a kind of red herring, intended to confuse and
    to distract attention from the legal basis of the Armenian claims.

    Indeed, the rights of the Armenians do not derive from the
    Genocide Convention. Rather: the Genocide Convention strengthens
    the pre-existing rights of the Armenian to recognition as victims,
    to restitution and compensation.

    Articles 144 and 230 of the Treaty of Sevres, signed on August 10, 1920
    by four representatives of the Ottoman Sultan Mehmed VI, recognized
    the rights of the survivors of the extermination campaign against
    the Christian minorities of the Empire, including the Armenians,
    the Greeks from Pontos, the Chaldeo-Assyrians, and affirmed the
    obligation of the Turkish State to investigate these crimes and punish
    the guilty. Article 144 stipulated in part:

    "The Turkish Government recognises the injustice of the law of 1915
    relating to Abandoned Properties (Emval-i-Metroukeh), and of the
    supplementary provisions thereof, and declares them to be null and
    void, in the past as in the future. The Turkish Government solemnly
    undertakes to facilitate to the greatest possible extent the return
    to their homes and re-establishment in their businesses of the Turkish
    subjects of non-Turkish race who have been forcibly driven from their
    homes by fear of massacre or any other form of pressure since January
    1, 1914. It recognises that any immovable or movable property of the
    said Turkish subjects or of the communities to which they belong,
    which can be recovered, must be restored to them as soon as possible,
    in whatever hands it may be found..."

    Article 230 stipulated in part: "The Turkish Government undertakes
    to hand over to the Allied Powers the persons whose surrender may
    be required by the latter as being responsible for the massacres
    committed during the continuance of the state of war on territory which
    formed part of the Turkish Empire on August 1, 1914. The Allied Powers
    reserve to themselves the right to designate the tribunal which shall
    try the persons so accused, and the Turkish Government undertakes to
    recognize such tribunal...."

    Even though the League of Nations never established an international
    criminal tribunal to try the Turkish perpetrators of the genocide
    against the Armenians and other Christian minorities, numerous trials
    under Turkish law did take place in Istanbul in 1919, even before the
    treaty of Sevres was signed. The Turkish authorities conducted these
    trials against Ottoman officials involved in the genocide pursuant
    to the Ottoman penal code. Many were convicted and three persons
    were executed.

    The Treaty of Sevres, however, was not implemented, because of the
    coup d'etat against the Sultan conducted by a Turkish general, Mustafa
    Kemal, who not only overthrew the Sultan but proceeded to wage war
    against the Greeks and the British, push them out of Anatolia and
    negotiate a new Peace Treaty with the Allies, which ensured impunity
    for the thousands of Turkish officials, officers and soldiers involved
    in the massacres.

    To deny that the Armenian massacres amounted to genocide manifests
    both ignorance of the facts and bad faith. There is no doubt that
    the Armenian genocide was many times worse than the ethnic cleansing
    that occurred in the former Yugoslavia in the 1990s, a crime which
    the UN General Assembly in its resolution 47/121 (1992) considered
    "a form of genocide". There is no doubt that the massacres of the
    Armenians were many times worse than the massacre of Srebrenica,
    which the International Criminal Tribunal for the Former Yugoslavia
    and the International Court of Justice condemned as genocide.

    But let us return to the general principle of law ubi jus ibi
    remedium. What is of relevance today is not the punishment of the
    guilty, because no person criminally responsible for the massacres is
    still alive. What is crucial is the right to the Armenian homeland,
    which entails the right to return and the right to restitution
    and compensation. In this context it is relevant to cite the final
    Report of the United Nations Special Rapporteur on the Human Rights
    Dimensions of Population Transfers, Awn Shawkat Al Khasawneh (today
    a judge at the ICJ).

    The Declaration appended to the Report, which was formally adopted by
    the Commission on Human Rights and by ECOSOC provides in article 8:
    "Every person has the right to return voluntarily, and in safety
    and dignity, to the country of origin and, within it, to the place of
    origin or choice. The exercise of the right to return does not preclude
    the victim's right to adequate remedies, including restoration of
    properties of which they were deprived in connection with or as a
    result of population transfers, compensation for any property that
    cannot be restored to them, and any other reparations provided for in
    international law. "Article 10 reiterates the erga omnes obligation
    of all States not to recognize the consequences of crime: "Where acts
    or omissions prohibited in the present Declaration are committed, the
    international community as a whole and individual States, are under
    an obligation: (a) not to recognize as legal the situation created
    by such acts; (b) in ongoing situations, to ensure the immediate
    cessation of the act and the reversal of the harmful consequences;
    (c) not to render aid, assistance or support, financial or otherwise,
    to the State which has committed or is committing such act in the
    maintaining or strengthening of the situation created by such act."

    Similarly, the United Nations Basic Principles and Guidelines on the
    Right to a Remedy, adopted by the General Assembly on 16 December 2005
    stipulate in part in Article IX: "19. Restitution should, whenever
    possible, restore the victim to the original situation before the gross
    violations of international human rights law or serious violations
    of international humanitarian law occurred. Restitution includes,
    as appropriate: restoration of liberty, enjoyment of human rights,
    identity, family life and citizenship, return to one's place of
    residence, restoration of employment and return of property. 20.

    Compensation should be provided for any economically assessable damage,
    as appropriate and proportional to the gravity of the violation and
    the circumstances of each case, resulting from gross violations of
    international human rights law and serious violations of international
    humanitarian law, such as: (a) Physical or mental harm; (b) Lost
    opportunities, including employment, education and social benefits;
    (c) Material damages and loss of earnings, including loss of earning
    potential; (d) Moral damage; (e) Costs required for legal or expert
    assistance, medicine and medical services, and psychological and
    social services." Since there is no statute of limitations applicable
    in cases of genocide and crimes against humanity, the Armenian claims
    to restitution and compensation continue to be valid to this day. Most
    importantly, however, the Armenians have a right to recognition as
    victims of genocide. They have a right to truth (6) and a right to
    historical memory. Such recognition is a fundamental human right
    and a sine qua non to reconciliation. For decades the Armenians were
    victims of silence. And indeed, the crime of silence is worse than
    that of negationism. International law will ensure that truth and
    justice shall prevail.

    (Alfred de Zayas is an American lawyer, writer, historian and expert
    in the field of human rights, as well as a former high-ranking United
    Nations official. He is currently a professor of international law
    at the Geneva School of Diplomacy and International Relations and was
    formerly a senior lawyer with the Office of the UN High Commissioner
    for Human Rights. De Zayas has written and lectured extensively
    on human rights, including the Armenian Genocide. This commentary
    originally appeared in www.neurope.eu.)

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