I. Armenian Question in a Historical Context

The Lausanne Peace Treaty and the Armenian Question

Gündüz AKTAN*
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The Armenian problem is not an issue that is taken up and discussed in a Lausanne Peace Treaty context. Yet, lately, Armenians have begun to make intense efforts to persuade the world to recognize the “genocide”, seeking ways of reviving the general approach that had once been embodied by the Sèvres Treaty and, in this context, proving, from their own standpoint, that the Lausanne Treaty is invalid.

The Armenian argument boils down to the following: “What happened in the past was a genocide. There can be no statutory limitations for the punishment of genocide. The reality of genocide cannot be erased with a treaty. For this reason, the Lausanne Peace Treaty is unlawful, invalid vis-à-vis the “Armenian genocide”. It cannot be applied to this issue. Under the circumstances, the relevant provisions of the earlier Sèvres Treaty would automatically gain validity and become applicable.”

But can it be so? The Lausanne Peace Treaty is a highly important contract, an agreement that was signed and ratified and put into effect by the quasi-totality of the then international community according to the proper procedure and still remains in force, an agreement that covers all the political, military, economic, financial and humanitarian issues pertaining to the Republic of Turkey being the successor of the Ottoman State, an agreement that creates an objective status in this regard and, therefore, has consequences for third countries as well. Issues such as revision, alteration or termination of this treaty can be examined and assessed not according to the subjective demands and evaluations of the Armenians but only according to the specific principles and rules cited in the treaty itself and the general tenets and procedures of the Law on Treaties.

The Lausanne Peace Treaty constitutes a general legal framework that regulates multilateral relations whereas Turkey-Armenia relations are bilateral, special relations. In fact, relations between Turkey and Armenia had been the subject of several agreements concluded prior to the Lausanne Peace Treaty, namely, the Turkey-Armenia Peace Treaty signed in Gyumri on Dec. 2, 1920, the Turkey-Armenia Peace Treaty signed in Moscow on March 16, 1921, the Turkey-Soviet Russia Friendship and Brotherhood Treaty signed in Moscow on March 16, 1921, and the Friendship Treaty signed by Turkey, Armenia, Azerbaijan and Georgia in Kars on Oct. 13, 1921. Just as the Sèvres Treaty, the first one of these, the Treaty of Gyumri, was not ratified. (The Soviet invasion of the Caucasus prevented the ratiffication process.) Therefore, just as the Sèvres Treaty, it could never be implemented. The latest two of these agreements, on the other hand, are still in force.

As can be seen, from Turkey’s standpoint the Armenian problem is an issue that was resolved in the period that preceded the Lausanne Peace Treaty. Armenians made certain efforts during the Lausanne process but these should be seen as a new political and diplomatic initiative - one that failed.

In this context, it may be useful to explain the discussions that took place in the course of the Lausanne process on the Armenian incidents. In 1915, that is, one year after the start of the First World War, the Ottoman armies were fighting on three fronts. The war was continuing with the British and French in Gelibolu (Gallipoli), with the Russians on the eastern front and with the British first in Suez and later in Iraq.

The relocation of the Armenians from one part of the Ottoman Empire to another began in May 1915. The Allied Powers (Britain, France and Russia) promptly issued a communiqué on May 24. They said that the Ottoman Empire was committing crimes against humanity and stressed that the Porte, that is, the Ottoman Government, would be held personally responsible for what was being done to the Armenians. That communiqué was important with respect to the Sèvres Treaty.

In 1916, with the assumption that the Ottoman Empire would be defeated in the war, an Englishman and a Frenchman, Sykes and Picot, were assigned the task of drafting agreements on how the Ottoman Empire would be divided. These agreements, signed between the Allied Powers (France-Britain, Britain-Russia and France-Russia), came to be known as the Sykes-Picot Accord. With these agreements it was planned that the eastern parts of Anatolia would be given to Russia and that the Armenians too would live there.[1]

However, a number of developments that occurred in 1917 changed the situation altogether: A revolution took place in Russia. As a result Russia withdrew from the war. The USA joined the war but, while declaring war on Germany, it did not declare war on the Ottoman Empire.

In the end the Central Powers (Germany - Austria - Ottoman Empire) lost the war in 1918 and the Ottomans signed the Armistice of Moundros on Oct. 30, 1918.

During that period President Wilson of the USA made his “14-points” declaration on peace, advocating the adoption of the “self­-determination” principle. Article 12 of the declaration said that Turks should be granted the right to self-determination in that region of the Ottoman Empire to be left to the Turks. However, it did not mention the boundaries of that region. The region to be left to the Turks was to be the subject matter of the Sèvres Treaty. Wilson declared that the “nationalities” to be “freed of Turkish rule” including the Armenians would be entitled to an autonomous political entity and life. It was under such conditions that the peace conference that was to culminate in the Sèvres Treaty began in January 1919. The Ottoman Empire could not actually take part in that conference and in its deliberations.[2] Despite that, it took the conference a very long time to reach decisions. It began in January 1919 and ended in August 1920. Although it did not witness serious negotiations it could not be brought to a conclusion all that time because the participants could not find a solution to the Armenian problem.

Armenians took part in the conference with two delegations. One of these was called the Delegation of the Republic of Armenia and the other, which represented those that were outside Armenia, the Armenian National Delegation. The latter was headed by the much talked-about Bogos Nubar Pasha, allegedly an Ottoman pasha. (He was an Egyptian Armenian.) At the start of the conference Bogos Nubar Pasha made a statement in the vein of, “We fought against the Ottomans. For this reason we are one of the warring parties. It is in this capacity that we want to take part in the conference.” Even if the 1948 UN Genocide Convention had been retroactive —which it is not-and a legal assessment were to be made on the basis of that assumption, these words would create a highly interesting situation indeed.

According to the UN Genocide Convention, if a given group is a party to an armed conflict, its members will not be placed into the category of persons to be protected within the framework of the Convention.[3] Therefore, by saying that the Armenians were one of the warring parties, Bogos Nubar Pasha confessed that the Armenians had made war against the Turks, rendering/groundless right from the beginning the genocide allegations that were to be made at a later date.

Throughout this process the Armenians demanded establishment of a new Armenian state (in addition to the territories of the existing Republic of Armenia) in an area covering six eastern provinces of the Ottoman State plus Cilicia, that is, the region between Adana and Maras in the south. The six Ottoman provinces in question correspond roughly to 18 provinces of modern Turkey. This is a total area of 250,000 — 300,000 square kilometers. The westerners sympathized with the Armenian demand. However, the Armenian population in that region was too small to create and govern a state of such size. For this reason, prior to the Russian withdrawal from the war it had been contemplated to place the planned Armenian state in Anatolia under Russian protection. After Russia withdrew from the war it was contemplated to give the region to the USA instead. US President Wilson had a warm reaction to this suggestion. However, he could not push the motion through the US Congress. The US Congress did not want an Armenia under US mandate, supporting instead the idea of an independent Armenian state.

The Sèvres Treaty was signed on Aug. 10, 1920. Many of its articles concern “Armenia”. The most significant one of these is Article 88. That article says that Turkey recognizes in advance the independence and freedom of the (still nonexistent) new Armenian state. And, according to Article 89, the power of fixing the exact frontiers of that Armenia was being assigned to President Wilson. And it was stated clearly where these frontiers should lie. The article says that the frontier should be delimited in such a way that the whole or any portion of (that is, an important part of) Erzurum -Trabzon-Van- Bitlis -Lake Van would be transferred to Armenia. Wilson was being asked to provide the answer to the question whether the territories of the planned Armenian state should encompass all or part of the aforementioned provinces. With that treaty Turkey was renouncing in advance all its rights and title over the territory in the provinces it would thus lose.

Articles 226-230 section of the treaty too involved the Armenians. These articles envisaged that those responsible for the “Armenian incidents” would be tried by the tribunals to be determined by the Allied Powers.[4]

The Ottoman Parliament never ratified the Sèvres Treaty. Meanwhile, the Turkish War of Liberation began. The armed struggle in the eastern front came to an end earlier than in the other fronts — with the victory of the young Turkish State. After the war was won on the eastern front first the Treaty of Gyumri and then the Treaties of Moscow and Kars were signed. However, as mentioned above, two days after the Treaty of Gyumri was signed the Bolsheviks came to prevail in South Caucasus and the treaty could not be put into force. To make up for that, first the Treaty of Moscow and then —in line with the Articles 6 and 15 of the Treaty of Moscow— the Treaty of Kars were concluded.

Within this legal framework, the frontier problem between Turkey and Armenia was solved via the Articles 1 and 2 of the Treaty of Moscow and the Articles 2 and 4 of the Treaty of Kars. Furthermore, contrary to what the Armenians are claiming, even if the Treaties of Sèvres and Gyumri had been ratified put into force according to the appropriate procedure, these would have to be considered invalid anyway due to Article 6 of the Treaty of Moscow and the Article 1 of the Treaty of Kars.[5]

Meanwhile, according to Article 15 of the Treaty of Kars each of the contracting parties came under the obligation to declare —immediately after the signing of the treaty- a full general amnesty for the nationals of the other party for crimes and offenses committed due to the war on the Caucasian front.[6]

Later Turkey won the battles of Sakarya and Dumlupınar. In October 1922 the Armistice of Mudanya was signed. In November the Turkish Grand National Assembly (TBMM) Government was invited to the Lausanne Peace Conference. The instructions the Turkish delegation received from the TBMM before leaving for Lausanne consisted, as a coincidence, of 14 points. These instructions mainly involved the frontiers, the capitulations and the minorities. However, there were two other points that, significantly, empowered Ismet Pasha and his delegation to withdraw from the conference at any point without having to seek permission from Ankara. In other words, the Turkish delegation was authorized to say, “No, thank you,” and leave if the Allied Powers insisted on demands on two subjects. One of these two important subjects was the Armenian homeland issue and the other was the capitulations. The TBMM Government was prepared to make concessions even from the frontiers issue despite the National Pact criterion. However, it was clearly determined, from day one, not to make any concessions at all regarding the “Armenian homeland” or the “capitulations”.

The Armenians wanted to take part in the Lausanne Conference as well but this time they made no such statements as, “We were one of the warring parties.” In the end, the Armenians managed to take part not in the main commissions but in one of the sub-commissions. That sub-commission, where the Turkish delegation was led by Rıza Nur, saw the toughest diplomatic clashes. Rıza Nur, being no career diplomat, used strong language.[7] Each time Rıza Nur talked in a severe manner to his interlocutors Ismet Pasha would offer a “superficial” apology and that scene would be enacted over and over.[8]

In the end the Lausanne Treaty could be signed. The text made no reference at all to the Armenians. On the other hand, the provisions about human rights (the provisions related to non-discrimination on racial, linguistic, religious etc. grounds) indirectly concerned the Armenians as well.[9]

Contrary to the common belief, the “Declaration of Amnesty and Protocol” which is the supplement to the Lausanne Treaty, was drafted in line with the insistent demands of not Turkey but the Allied Powers. With that general amnesty all of the crimes committed in wartime were pardoned. The crimes the Greek Army committed in Anatolia too were pardoned along with the crimes committed against the Armenians and vice versa.[10]

Under Paragraph 6 of the Declaration the Turkish state pledged not to contest the measures the British and the French had taken to ensure the return of (and restitution of property to) those Armenians that had been in the regions left outside the borders of Turkey (such as Syria) from 1918 when the Ottoman Empire lost the war and until the end of 1922, especially during the time Istanbul and the Ottoman Parliament had been under foreign occupation. According to that paragraph those Armenians that wanted to come back would be able to do so, and the measures taken regarding those Armenians that were within the Turkish borders and had their property restituted, would remain valid.[11]

Another provision that indirectly concerns the Armenians is Article 31 of the Lausanne Peace Treaty about nationality. Those Armenians that had not lost Turkish nationality would be able to come back anyway. The children of those Armenians that had lost Turkish nationality would be able to come to Turkey if, when they became 18-years-old, they chose Turkish nationality within a certain time limit.

Among the Lausanne Peace Treaty provisions that indirectly concern the Armenians, the most interesting ones are in the Articles 65-72 section. At first sight these economic clauses may seem unrelated to the Armenians. It can be said that the Turkish delegation may have refrained from making a separate and clear reference directly to the Armenians in the Lausanne Treaty since these issues stemmed naturally from the general meaning of human rights law and there was no need for such a specific reference. These economic clauses include a section titled “Property, Rights and Interests”. This section provides protection for all the rights and interests of those that had been subjected to mass relocation.’[12]

Here, what is significant is that the same legal principles and procedures were devised for what happened to the Armenians during the First World War and what happened to the Turks during the Balkan Wars. In other words, if the practice to which one of these two peoples was subjected to is to be called genocide then the practice to which the other was subjected to should be called genocide as well. To put it differently, the same rules of law have to be applied to the Armenians and the Turks because of the incidents they were subjected to. The acts that may be in question have to be assessed according to the same criteria.

The Lausanne Peace Treaty does contain certain provisions on insurance policies in general and on life insurance policies in particular that could benefit the Armenians.[13] However, these create the legal framework for private law relationships between persons in a private law context. Discussing the technicalities of this issue in detail here would be beyond the specific aims of this article.

It must not be forgotten that a new state was being founded in Turkey. In that process the problems, debts and responsibilities of the past would have to be phased out. Only in this manner it would be possible to turn a new page and start a new era. In a legal regime deadlines would be imposed on the exercise of rights on such issues. If the exercise of these rights were to be open-ended, that would create uncertainties as to the legal relationships and the plans that have to be made for the future. For this reason, statutory limitations would be introduced. These limitations enable continuity in deeds and procedures. In this framework, it was agreed that if, for example, an Armenian applied to the Turkish authorities, he or she had to be given a positive reply in six months. Otherwise he or she would be entitled to apply to a mixed tribunal over the subsequent 12 months. Under the circumstances, the process of resolving the property disputes should have been completed over the 18 months that followed the signing of the Lausanne Peace Treaty and the issues should have been brought before the tribunals if that had to be the case. The disputes were to be resolved “definitely” with the decisions of these “hybrid” tribunals. These statutory limitations have expired, and, in our day, there is no subject matter for implementation of these provisions anymore.

Few years back, a problem arose between the USA and Switzerland regarding the Jews. The Jews had obtained compensation from the Swiss Federal Bank, some other Swiss banks and the Swiss Government due to what happened to them during the Second World War. And the amounts of compensation were considerable rather than symbolic. Taking this as an example, the Armenians may want to use the same method. However, due to the reasons listed above, legally this is not possible. The Lausanne Peace Treaty has adequately regulated, in a private law context, the rights and interests of persons in question.

On such private law issues only real or moral persons whose rights have been injured can be a “party”. The USA being or not being a party to the Lausanne Peace Agreement as a state, is not a decisive factor from the standpoint of whether it has the capacity or not to be a party to the case on such issues.

In his famous historic “Speech” Ataturk says two things about the Armenians when listing the things Turkey achieved with the Lausanne Treaty: The Sèvres Treaty had said that crimes had been committed in violation of the law of war and it had envisaged punishment of the Ottomans. With the Lausanne Treaty that was abandoned entirely. The Sèvres Treaty had aimed to create an Armenia whose frontiers would reach the farthest points the Russian armies had reached in Anatolia. That too was abandoned entirely with the Lausanne Treaty. In other words, regarding the Armenian homeland issue the Turkish delegation carried out in Lausanne the TBMM’s instructions word by word. No concession was made on this subject at all. The Armenians took their place in the Republic of Turkey as Turkish nationals within the framework of the minority rights recognized by the Lausanne Treaty.

During the negotiating process of the Lausanne Peace Treaty the Turkish side has made concessions on many important issues as required by a realistic stance. However, none of these concessions has adversely affected the future of Turkey’s legitimate rights. On the contrary, it has been possible for us to enhance our rights and interests further when conditions are suitable — as in the case of the status of the Turkish Straits. Probably the only issue on which no concession was made, was the unjust demands related to an Armenian homeland.

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* Retired Ambassador.
[1] In that case the Armenian presence would be within the Russian borders under Russian mandate or protection.
[2] According to the Armenian approach the fact that a treaty was concluded under such conditions would not affect its legal validity!
[3] Undoubtedly, at that time not only the Genocide had not been concluded yet but also the “genocide” concept was not known as a technical term.
[4] In other words, the Otoman Empire was to apprehend those responsible and ensure that they would be tried by the tribunals to be thus established. The “Military Tribunal of Nemrut Mustafa” was ont of these. The Tribunal in question was set by the Freedom and Accord Party that came to power in 1918, that is, after the Unity and Progress Party lost the war. Taking revenge on the Unity and Progress that had governed the country during the 1914-1918 period, the make-shift tribunal convicted as “guilty of Armenian incidents” almost everybody brought before it without due process.
[5] Not only is the Armenian argument that the Sèvres Treaty would “take effect once again” devoid of any legal basis but also, the said provisions of these treaties- which were put into effect at a date later than the date on which the Sèvres Treaty was signed- definiately rule out any such possibility.
[6] Therefore, even if we wanted to engage in a mental exercise on a hypothetical criminal law problem and assumed that the 1948 UN Genocide Convention was retroactive to the 1915 incidents, we would stil have to conclude that due to the Article 15 of the Treaty of Kars no punishment could be meted out the “culprits” anyway.
[7] Undoubtedly, Ismet Pahsa and Rıza Nur may have agreed in advance for Rıza Nur to act in that manner.
[8] The reports Ismet Pahsa sent to Ankara indicate that many such quarrels took place during the meetings. Ismet Pahsa wrote, “Rıza Nur became angry once again and used strong language.” Meanwhile, Britain too had its share of Rıza Nur’s verbal attacks. Though, at that time, Britain was as powerful a country as the USA currently is, he was able to say to his British interlocutor, “You, leave us alone and look at Ireland instead.” And on two occasions he walked out of the room.
[9] See, for example, Articles 37-44 on protection of the minorities.
[10] We noted above that this issue had been resolved in the context of the bilateral realtions betwen Turkey and Armenia. Although these provisions mainly regulate Turkish-Greek relations, we believe that, considering the overall sructure of the treaty and strategic goals cited in the preamble of the treaty, an additional interpretation in the manner mentioned above may well be made.
[11] As mentioned above these provisions cover the Armenians not specifically but in a general context.
[12]In other words, an Armenian had the right to come and say, “1 have lost that house. You are obliged to restitute that.” Those Armenians that were living in Syria after being relocated were able to address their demands for restitution to the French authorities, Syria being under French mandate. And, in return for granting the Armenians such legitimate rights and interests, something important was obtained: The “Property, Rights and Interests” of those Turks that were similarly forced to relocate (to Turkey) during the Balkan Wars were protected under these same provisions. The Treaty introduces the obligation to grant to Turks and Muslims in Greece, Bulgaria and the countries called “Croatia, Slovenia and Serbia” at that time in place of Yugoslavia the the same rights Turkey was granting the Armenians. A deadline was set for demanding these rights and a court was set up to deal with the disputes that might rise. These courts, called “mixed tribunals”, were courts of law and not criminal courts and they consisted of judges from various countries along with Turkish judges.
[13] See: Lausanne Peace Treaty Article 74 and the First Section annexed to that article: Life Insurance.

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