WHAT TERRITORIAL RIGHTS MAY TURKEY CONCEDE TO ARMENIA

Perhaps there isn’t a single Armenian who hasn’t heard the word “genocide” or hasn’t witnessed how the talks about who will pronounce the g-word and who won’t rise each year on the eve of April 24th. Still hardly any Armenian may explain what eventually the Armenians anticipate from the usage of word “genocide” - even if used by the US President, and in general what do the Armenians expect from the recognition of the Genocide. More than that, let’s say today’s Turkey agrees to describe all the violence, deportation and extermination committed towards Armenians in Ottoman Empire during the WWI with the term “genocide”. What’s then, what may follow to it, may there be reparations?

However there are Armenians, mainly in Diaspora, who are well-known specialists of international law, so they see the steps, court instances, results that may be available to Armenians beyond the emotional talks and claims. One of those specialists - and perhaps the most respectable and famous one - is Mr. Philippe Raffi Kalfayan. He is an International Legal Counsel, Associate Researcher and Lecturer of International Public Law at Paris 2 Pantheon-Assas University and at International Institute for Human Rights (IIDH) in Strasbourg. Mr. Kalfayan was in Yerevan recently for a discussion devoted to Armenian-Turkish relations, organized by the Embassy of France and the French University of Armenia.

THE JURIDICAL PATH

- Mr. Kalfayan, thank you so much for the opportunity of this interview. I asked this largely because your phrase that Armenia on its own can’t be a legitimate party to present demands to Turkey in relation of Armenian genocide had interested me. You tell something that is my own belief for long, but you tell it from the position of an international lawyer and therefore I’ve so many questions to you! Let me start with this one - what procedures does the current international law envisage for prosecuting the genocide crimes?

- I think first we should clarify couple of realities of the current international law system when it comes to prosecution of crimes - including the genocides, the crimes against humanity, the war crimes, etc. Here the important point is that the criminal law may be applied only towards the individuals. So for going through the criminal justice process, the individuals who allegedly committed the criminal acts should be available to the court for trial. Yet from the days of the Armenian Genocide an entire century has passed and no criminal or perpetrator is alive.

- I’m sorry but the leaders of Ittihat - or the Ittihat ve teriyaki, to be absolutely precise with their name - had been tried at an Ottoman court for their crimes, including for the crimes and atrocities committed against the Ottoman Armenians. Doesn’t that fact matter, wasn’t it a legitimate court?

- No, the problem isn’t there. Indeed, it was a legitimate Ottoman court, simply the Ittihat leaders were not tried there for committing Armenian genocide. Number of charges was brought against them during that trial, including the allegation of mass murder of Christians. Yes, the Christians there were mainly the Armenians, Greeks and Assyrians, but this loose and broad formulation “murder of Christians” doesn’t necessarily define the committed crime as genocide or determine the fact of genocide.

- Thanks for the clarification, it’s important to apprehend it. But then how this genocide fact may be proved?

- It is not necessary to prove the genocide to get reparations for it. Actually, the qualification of crimes does not condition the reparations nature and scope. This one hundred years distance leaves essentially one option for obtaining justice - it’s to follow the path of reparations case by establishing that severe wrongful acts, internationally prohibited at the time of their commission, the responsibility of which are attributable to Ottoman Empire and then demanding from Turkey to satisfy its obligation of reparation. The judicial fora are very limited for that legal scenario: it is the UN interstate court: the International Court of Justice.

- Is it different from the ICC?

- Sure, it’s different. The ICC (International Criminal Court) was founded in 2002 - the Rome Statue establishing this court was signed in July 1998, but came into force in 2002 after its ratification by the required quota of countries. This court is authorized to consider only the cases that occur after its entry into force. This is criminal court and as said before, the criminal law is no longer applicable in the considered case. So it’s not an eligible court.
The eligible court, as said above is the International Court of Justice, abbreviated as ICJ. This is the judicial branch of the UN, established back in June 1945, and in fact the countries that join the UN and sign the UN Charter by that recognize the authority and jurisdiction of the ICJ. Only the states and specific UN bodies may bring a case before this court. The states may apply for contentious issues, when there’s a dispute between two states and they agree to accept any decision of ICJ. Another option is applying to ICJ for Advisory opinion and this may be done through the UN General Assembly or Security Council, or by any specialized institution authorized to do so.

- Do we have enough ground and argumentation to take a contentious case to ICJ?

- Yes, we have. We may argue that the Ottoman authorities breached those laws that were in force at that time, during and even before the WWI. Here may be cited the Hague Conventions from the late 19th century, that were violated by the Ottoman authorities in respect to Armenian civilians (Convention (II) with Respect to the Laws and Customs of War on Land. The Hague, 29 July 1899). The preamble provided that “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience. Ottoman Empire was a party to this treaty.

Even the Berlin Treaty of 1878 may be cited, because that treaty envisaged and the Ottoman Empire had the obligation thereof to protect the Armenian Christians (article 61), yet they didn’t.

However, there are technical obstacles: first, does Armenia as a State have a legal standing to call upon this court for settling a dispute relative to wrongful acts committed before its creation? The response is yes and no, but I don’t want to go into details about the solution envisaged. Second, I’m not sure that Turkey will be enthusiastic about taking the issue of Armenian genocide to ICJ as a contentious case. Moreover, it is very difficult to take a state before this court without its consent.

Yet, the option of applying to ICJ for Advisory opinion remains. The application may come through General Assembly or UN Security Council. Simply you may put one question before the ICJ. Some formulations of questions are currently under legal review.

- And what may be the result of all those legal efforts?

- The juridical path and procedures are important for determining and certifying the facts committed against the Armenians by the government of the Ottoman Empire and engaging the state responsibility of Turkey for the internationally wrongful acts, a preliminary to impose an obligation of reparation. For now the Turks do not agree with the term of genocide, but they accept almost all the committed crimes, although trying to justify it by the necessity of war circumstances.

The judicial process may enhance further accumulation of all kinds of evidence and data related to what happened to Armenians and to what scale and essence it mounted in its entirety. Ultimately it’s important to have whole genocide picture and story as complete as possible, even though the legal qualification of genocide is not attainable because of the non-retroactivity of the 1948 Genocide Convention.

But beyond that, it should be kept in mind that this pure legal path doesn’t solve, doesn’t help with overcoming and repairing the consequences of genocide. For that purpose, the convergence of both politics and law is required. The final settlement of the dispute between Armenians and Turkey and reconciliation require three pillars for its foundation: sincere political will, commonly accepted narrative, and material and moral reparation measures

THE JURIDICO-POLITICAL PATH

- It seems to me the case of Armenian genocide in sense of consequences and repair is a rather complicated issue. It comprises several layers - from international treaties to inter-state relationship, to the rights of the descendants of the victims of genocide and the West-Armenians in large.

- Yes, it’s a large and complex issue; therefore its settlement has to be not through pure juridical procedures, but rather via juris-political solution. By its nature it should be a comprehensive bilateral agreement between the Turkey and the Armenians. Surely first and foremost the descendants of Western Armenians should be represented in any kind of settlement process, because at the end of day their ancestors were deprived from their lands, properties and most importantly of their life and dignity. Perhaps you‘ve heard already there are couple of organizations claiming to represent the West-Armenians. But such descendants constitute also half the population of the Republic of Armenia.

I’m sure the Turkey itself will be much interested also in Republic of Armenia’s participation in any comprehensive settlement, so it could be somehow final, not leaving room for kind of post-settlement claims. I suspect they would like even to mention about the territorial issues there somehow, even those related to Karabakh; however this latter dispute should be discarded since it is not a dispute between Turkey and Armenia. What any comprehensive Armenian-Turkish settlement may look like? I believe it may recover some compensation measures - monetary, material, territorial etc. but mainly moral and psychological reparation measures, i.e. satisfaction (recognition of facts, narrative, apologies, cessation of denial, modification of texts in school books, etc.).

- Sorry, what do you mean by saying monetary compensation?

- It may be well alike the procedure that was arranged between the Germany and Israel after WWII. Actually when the Holocaust happened, the State of Israel still wasn’t declared; the Jews didn’t have any statehood. However afterwards in 1948 the State of Israel was established and in 1951 it was agreed that Germany will pay the monetary compensation to Israel and the Israeli state through its inner procedures will deliver it further to the descendants of the Holocaust victims.

You should know that it’s not only the Armenians, but also the Turks, the Turkish authorities, who reflect upon the available ways of this Armenian-Turkish settlement and compensation issue. I even know couple of distinguished specialists in the sphere of international law, with whom the Turkish authorities have consulted in mid 2000s. Whether the Turks agree that it was Genocide or not, their consciousness is not calm, they know that something terrible has happened, that crimes were committed, which sooner or later should be addressed, compensated and settled.

- I’m highly suspicious that many, if not the most of West-Armenians’ today descendants would like or agree to receive monetary compensation in exchange of property lost by their families during the genocide. Many would demand the property, especially the real estate property to be returned back.

- Do you sincerely think that today Armenians will go and live there?!

- Will the Armenians live there or just once in a year visit their properties is another issue. And unfortunately we are still far away from that decisions and stage. But you mentioned also territorial compensation, what is it about?

- Any comprehensive settlement between the Armenians and Turkey should comprise compensations and not only monetary, material, but also moral and territorial. Under the formulation of territorial compensation it’s largely understood, as far as I am concerned, that Turkey should concede some territorial rights to Armenia that would secure Armenia’s free access to the Black Sea, enabling to establish its harbor there, etc. Turkey may also open free credit lines to the Republic of Armenia for developing its economy and infrastructure. But others may think of different compensations. We are not there yet!

- Anyway, whenever the exit to the sea emerges on agenda, the Black Sea can’t be a solution there. Armenia needs the exit to the Mediterranean Sea. Still a century ago Poghos Nubar Pasha had stated that the Mediterranean and Cilicia are the lungs of Armenia, Armenia can’t breathe without them. A century later his words are even more opportune and accurate. So let’s live and see where do the developments within Turkey and the region lead. And, surely, endless thanks to you for sharing with us so many unknown actualities.

Lusine Petrosyan