Abstract
At the time of the massacres commonly known as Metz Yeghern, did some international unwritten rule exist regarding what is later defined as genocide? If not, does the subsequent coming into being of a customary, peremptory rule have any effect today for Turkey and for all the other contemporary States? The absence of a customary rule prohibiting States from committing genocides at the time of Metz Yeghern is demonstrated through the analysis of rulings of the International Court of Justice, the preparatory works of the International Law Commission’s Articles on the Law of the Treaties and on State Responsibility, the preparatory works of the 1948 Genocide Convention and the behavior of the different States involved during and after 1915–1916 massacres. The current peremptory rule on the prohibition of genocide is neither retroactive nor applicable to many of the current behaviors of modern Turkey vis-à-vis Armenians and/or those past events, whose illegality is often questioned on different grounds.
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Notes
- 1.
De Zayas (2010).
- 2.
Convention of 9 December 1948, 78 U.N.T.S. 277, Article I.
- 3.
It is here assumed that the Ottoman Empire and Turkey share the same international personality, a much debated conclusion. A different conclusion is reached, for example, by the European Parliament, Resolution on a Political Solution to the Armenian Question, A2-33/87 No. 10.
The issue is not analyzed here in order to concentrate on the object of the present essay, as spelled out in the title of the contribution. For a review of the different positions, see the debate between Avedian (2012) and Tacar and Gauin (2012)
- 4.
For example, Tacar and Gauin (2012). On the evidence of the genocidal intent by Ottoman officials in Metz Yeghern see extensively Lattanzi, in this volume.
- 5.
Tacar and Gauin, 2012; see Rosanò, in this volume.
- 6.
In this volume, see Flores, Lattanzi.
- 7.
The International Law Commission (ILC) has recently (2016) adopted on first reading sixteen Draft Conclusions on the Identification of customary international law (A/71/10, Chapter V). The ILC has followed the mainstream approach in defining what is customary international law and how we can ascertain it.
- 8.
Articles 53 and 64, Vienna Convention on the Law of Treaties (1969).
- 9.
Gaja (2013), para. 18.
- 10.
See the contribution of Marchesi, in this book.
- 11.
- 12.
ICJ Reports, 2007, p. 110 ff., para. 166.
- 13.
ICJ Reports, 2007, para. 173. The International Law Commission noticed, in its commentary to draft Article 19 adopted on first reading of the Draft Articles on State Responsibility, that “Punishment of those in charge of the State machinery who have […] organized an act of genocide does not per se release the State itself from its own international responsibility for such acts”. Yearbook of the International Law Commission 1976, Vol. II, Part Two, p. 104.
- 14.
ICJ Reports 2015, para. 99.
- 15.
ICJ Reports 2015, para. 99.
- 16.
ICJ Reports 1951, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, p. 23.
- 17.
Ibidem. As evidence of this conclusion, the Court mentioned General Assembly res. 96 (I), where it is affirmed the intention of the United Nations to condemn and punish the crime of genocide. The resolution addresses only the crime of individuals.
- 18.
Barcelona Traction, ICJ Reports (1970), p. 33.
- 19.
ICJ Reports 2006, p. 31.
- 20.
Croatia v. Serbia, ICJ Reports 2015, para. 87.
- 21.
Yearbook of the International Law Commission 1966, Vol. II, p. 248, para. 3.
- 22.
Ibidem, para. 2.
- 23.
Ibidem, para. 3.
- 24.
Yearbook of the International Law Commission 1976, Vol. II, Part Two, p. 95 ff., 101.
- 25.
Report of the International Law Commission on the work of its fifty-third session, 2001, p. 112–113.
- 26.
See, for instance, A/C.6/SR. 63, 30 September 1948, and the debate in A/C.6/SR. 67, 5 October 1948, A/C.6/SR.68, 6 October 1948, in particular United Kingdom, USSR, Yugoslavia, Uruguay; Cuba, A/C.6/SR. 73, 13 October 1948.
- 27.
France, A/C.6/SR. 80, 21 October 1948.
- 28.
South Africa, A/C.6/SR. 64, 1 October 1948; United Kingdom, A/C.6/SR. 64, 1 October 1948 and A/C.6/SR.68, 5 October 1948, A/C.6/SR. 69, 7 October 1948; Belgium, A/C.6/SR. 65, 2 October 1948 and A/C.6/SR.68, 6 October 1948; Lebanon, A/C.6/SR. 66, 4 October 1948; Panama, A/C.6/SR. 69, 7 October 1948; Belgium, A/C.6/SR. 73, 13 October 1948; Haiti, A/C.6/SR. 75, 15 October 1948; United States, A/C.6/SR. 78, 19 October 1948; France, A/C.6/SR. 80, 21 October 1948.
- 29.
A/C.6/224, 8 October 1948.
- 30.
A/C.6/SR. 78, 19 October 1948; in the same sense Philippines, A/C.6/SR.97, 9 November 1948.
- 31.
A/C.6/SR. 79, 20 October 1948; A/C.6/SR. 80, 21st October 1948.
- 32.
Ibidem, Iran; United Kingdom. See also Yugoslavia, A/C.6/SR. 80, 21 October 1948.
- 33.
USA, A/C.6/SR. 79, 20 October 1948.
- 34.
Ibidem.
- 35.
A/C.6/SR.84, 26 October 1948 (Fitzmaurice).
- 36.
A/C.6/SR.92, 5 November 1948; A/C.6/SR.93, 6 November 1948.
- 37.
A/C.6/SR.96, 9 November 1948.
- 38.
For example, the United States declared that it “did not share the opinion of the United Kingdom representative that genocide could be committed by juridical entities such as the State or the Government; in reality genocide was always committed by individuals. It was one of the aims of the convention on genocide to organize the punishment of that crime. It was necessary to punish perpetrators of acts of genocide, and not to envisage measures such as the cessation of imputed acts or payment of compensation”. A/C.6/SR.93, 6 November 1948. Later, the United States stressed again “the necessity of remaining within realistic bounds. The aim of the convention was to ensure the suppression of genocide and the punishment of the culprits. It should therefore not contain provisions regarding the payment of reparations to the victims; that question belonged to another branch of the law”. A/C.6/95, 8 November 1948. See, in the same vein, the statement by France, ibidem. See also Venezuela, A/C.6/95, 8 November 1948.
- 39.
In its explanation of vote, Turkey stated that it “had voted against the United Kingdom amendment […] because he had felt that … the amendment to article V was superfluous”.
- 40.
A/C.6/SR. 100, 11 November 1948. The amendment, A/C.6/258, read: “Any dispute between the High Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including disputes relating to the responsibility of the State for any of the acts enumerated in articles II and IV, shall be submitted to the International Court of Justice, at the request of any of the High Contracting parties”.
- 41.
A/C.6/SR.95, 8 November 1948; A/C.6/SR.104, 13 November 1948.
- 42.
Belgium, A/C.6/SR.95, 8 November 1948; United Kingdom, A/C.6/SR.96, 9 November 1948.
- 43.
Uruguay, A/C.6/SR.97, 9 November 1948.
- 44.
India, Cuba, A/C.6/SR.95, 8 November 1948. See also the statements given by Luxembourg, Ecuador, A/C.6/SR.96, 9 November 1948; Egypt, A/C.6/97, 9 November 1948; Netherlands, ibidem; Philippines, ibidem; Cuba, ibidem; Bolivia, ibidem; Poland, A/C.6/98, 10 November 1948. Such a responsibility was also the reason for some delegations (India) to vote against the amendment, A/C.6/SR.103, 12 November 1948.
- 45.
A/C.6/SR.92, 5 November 1948.
- 46.
A/C.6/SR.93, 6 November 1948; A/C.6/97, 9 November 1948. However, later in the debate, in answering to the Iranian statement, Fitzmaurice pointed out that “The cases of reparation mentioned by the Iranian representative did not occur in acts of genocide, because the offences were generally committed by the State against its nationals”. A/C.6/SR.104, 13 November 1948.
- 47.
Sweden, A/C.6/SR.92, 5 November 1948; Belgium, A/C.6/SR.93, 6 November 1948, A/C./SR95, 8 November 1948. On the other hand, Luxembourg’s representative, Mr. Pescatore, maintained that “Such responsibility would thus arise whenever genocide was committed by a State in the territory of another State. In that case, the State which had suffered damage would have a right to reparation”: A/C.6/SR.103, 12 November 1948. Along the same line, the representative of Iran noted that “In international law, a State asked for reparation of damages inflicted on its nationals by another State: but in the case of genocide, it was a question of injuries inflicted on citizens by citizens of the same State […] if a State were not directly but indirectly concerned, merely as signatory to the convention. If each State party to the convention were entitled to reparations, such a provision would obviously lead to abuse”. A/C.6/SR.104, 13 November 1948.
- 48.
The U.S. delegate, upon voting in favour of the adoption of the Convention, declared with regard to Article IX: “If the words “responsibility of a State” were taken in their traditional meaning of responsibility towards another State for damages inflicted, in violation of the principles of international law, to the subjects of the plaintiff State; and if, similarly, the words “disputes […] relating to the […] fulfilment” referred to disputes concerning the interests of subjects of the plaintiff State, than those words would give rise to no objection. But if, on the other hand, the expression “responsibility of a State” were not used in the traditional meaning, and if it signified that a State could be sued for damages in respect of injury inflicted by it on its own subjects, then there would be serious objections to that provision”. A/C.6/133, 2 December 1948.
- 49.
Cooper (2008).
- 50.
ICJ Reports, 2007, paras. 167, 175–179.
- 51.
A/C.6/SR. 74, 14 October 1948.
- 52.
On the treaties which contained provisions on the protection of minorities in force at the time of Metz Yeghern, see the paper by Lattanzi, in this volume.
- 53.
See Dadrian (1989), p. 221 ff., who argues that the Ottoman Empire might have justifiably invoked the break of the war as a cause of termination of those treaties.
- 54.
So much more in light of the works of Lemkin, who made proposals concerning a specific crime of killings of a specific racial or religious group to be persecuted on the international level, after having studied the trial of Soghomon Tehlirian for the assassination of the former Ottoman Interior Minister Talaat Pasha in Germany. Lemkin publicized these proposals already in 1933: Acts Constituting a General (Transnational) Danger Considered as Offences Against the Law of Nations, 5th Conference for the Unification of Penal Law, Madrid. http://preventgenocideinternational.org.
- 55.
As the US delegate noted with regard to the text of the preamble of the Convention, “It was to be hoped that all countries would eventually sign the convention and it would be easier for them to do so if no mention of the past activities of any particular country were included”. A/C.6/SR.110, 18 November 1948.
- 56.
See again Marchesi, in this volume.
- 57.
Such was the wording of a telegram from Henry Morgenthau Jr. to the Secretary of State on 16 July 1915. The telegram went on stating: “I believe nothing short of actual force which obviously United States are not in a position to exert would adequately meet the situation”.
- 58.
The Treaty of Sévres (Article 144) contained detailed provisions about the restoration of property to “Turkish subjects of non-Turkish race who have been forcibly driven by their homes by fear of massacre or any other form of pressure”. The Treaty was never ratified by Turkey.
- 59.
- 60.
Amnesty Declaration attached to the Lausanne Treaty. Other treaties concluded by Turkey (Treaty of Kars (1921) with Armenia, Azerbaijan and Georgia; Treaty of Ankara (1921) concluded by Turkey and France) included general amnesties for facts subsequent to Metz Yeghern.
- 61.
Avedian (2012), p. 809.
- 62.
As Avedian (2012), p. 804, puts it, “the major power policies of securing economic and political interests simply outweighed the issue of pursuing the question of punishment for Armenian massacres”. See extensively Dadrian (1989), p. 221 ff. On the other hand, Tacar and Gauin (2012), p. 828, maintain that the reason for the release of the Ottoman officials imprisoned in Malta by British forces in 1919–1921 was the absence of any evidence of their involvement in the massacres.
- 63.
Schabas (2010), p. 57, reaches this conclusion too.
- 64.
See the contribution by Lattanzi.
- 65.
As illustrated by Lattanzi, above, in interpreting Articles 142 ff. of the Treaty of Sèvres. Also, the exercise of Turkish jurisdiction and the sentencing of public officials immediately at the end of WWI may be taken as an establishment and recognition of what happened.
- 66.
Dadrian (1989), p. 322, puts it as “the Armenian experience of noble talk without substantive action”. De Zayas (2010), p. 34 ff., reaches a different conclusion, regrettably with not much evidence to his avail. Schabas (2010), p. 47–48, appears to reason along the lines here exposed, with regard to the crime of individuals.
- 67.
On the different question of the retroactive application of the Genocide Convention, see Cipolletti, in this volume.
- 68.
Report of the International Law Commission, 53rd session (2001), A/56/10, at 135.
- 69.
De Zayas (2010) thinks otherwise.
- 70.
See the papers by Spatti, Leotta, Latino.
- 71.
I leave it to other authors to consider, whether the denial of an historically proven genocide is a breach of the obligation to prevent genocide.
- 72.
On this aspect, see the paper by Donat-Cattin in this volume.
- 73.
Tacar and Gauin (2012), p. 832–833. The European Parliament Resolution on a Political Solution to the Armenian Question, 1987, declares at point 2 that “the present Turkey cannot be held responsible for the tragedy experienced by the Armenians of the Ottoman Empire and stresses that neither political nor legal or material claims against present-day Turkey can be derived from the recognition of this historical event as an act of genocide”.
- 74.
See, for example, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN General Assembly resolution 60/147, 16 December 2005.
- 75.
See Mucci’s contribution in the present volume.
- 76.
As maintained by Lattanzi, in this volume.
- 77.
The words are Justice Cardozo’s, in New Jersey v. Delaware, 1934, U.S. Supreme Court Report, vol. 291, 361 ff., at 383, quoting Lauterpacht, The Function of Law in the International Community, 1933. 110, 255.
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Gianelli, A. (2018). Is Customary Law on the Prohibition to States to Commit Acts of Genocide Applicable to the Armenian Massacres?. In: Lattanzi, F., Pistoia, E. (eds) The Armenian Massacres of 1915–1916 a Hundred Years Later. Studies in the History of Law and Justice, vol 15. Springer, Cham. https://doi.org/10.1007/978-3-319-78169-3_5
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