II.
Armenian Question in the Legal Context
The Armenian Problem and International Law
Gündüz AKTAN*
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Introduction
A lot was written on the Armenian incidents that had occurred in the Ottoman
Empire in the years 1915-1916, that is, during the early part of World War
One. Thousands of works tackling this issue were published, mainly by
Armenians. These authors, mostly historians, were inclined to describe the
incidents as genocide. Turkish authors too, almost without exception, and a
number of foreign writers, held in high esteem, approached the issue from a
historical standpoint, maintaining in turn that resettlement is not the same
as genocide.
Although the strong emotional context of this issue makes a neutral view of
history difficult to prevail, there are undoubtedly ample publications
available to give adequate information about the history of the incidents.
Despite the claims that the archives in Turkey and in Armenia are not fully
accessible, one can safely say that enough archival work has been done and
published to permit an assessment of the nature of the incidents.
Historical studies are essential to render understandable the incidents that
took place in the second decade of the 20th century. However, if a historian
lacks education and/or experience in international law, that person cannot
judge whether or not these incidents amounted to genocide. Like historians,
academics such as sociologists and political scientists who laboured on
these issues, tend to describe as genocide almost any incident, which
involves an important number of dead.[1] However, genocide, as an
international crime, can be determined only by jurists on the basis of the
prescribed legal criteria.
Nevertheless, there are very few works of legal nature on this issue. This
outcome is due to a variety of reasons. For one thing, the Turks are not
known to be legalists, first and foremost. But the Armenians have
deliberately set aside the legal aspect of the issue apparently because that
would weaken their genocide claims. Pro-Armenian writers chose to adopt the
historical approach to underline the tragic nature of the incidents so that
they could make genocide claims more easily. Probably, one of the reasons
why the legal approach has not been preferred is the fact that the
“Convention on the Prevention and Punishment of the Crime of Genocide”
(henceforth to be referred to as the Convention), which had been concluded
in 1948 and had taken force in 1951, was not used frequently enough until
the mid 1990s. As a result, the jurisprudence in this area was not developed
sufficiently. Finally, the difficulties involved in retroactively applying
the Convention to incidents that occurred some three or more decades ago,
before it entered into force, are all too obvious. The jurists may have
failed to display an interest in this issue because it would not be
compatible with law to apply legal concepts, “genocide” among them, which
did not exist in the pre-Convention period.
This article adopts, on the other hand, a legal approach. To be able to
focus adequately on the legality of the issue, it will assume that the
reader possesses already an adequate knowledge of the historical background.
Chronological data will be referred to only to the extent that
jurisdictional assessments require it.
Law Prior to the Convention
According to the 1648 Westphalian system, state sovereignty was an absolute
principle-essential and supreme. The matter of minorities was an internal
affair for the states, which applied domestic laws to the incidents that
occurred within the country. The concept of “international crime” did not
exist. Coming to the Ottoman scene, however, the minorities in the Ottoman
Empire became, immediately after the 1839 Tanzimat Edict, the subject of
treaties between nations. That was an exceptional situation. It resulted, on
the one hand, from the fact that the Ottoman Empire, a multi-cultural and a
multi-national country, found itself in a weaker position in its competition
with the predominantly nation states of the West, and, on the other hand,
from another fact, namely that the European governments turned their support
of the Christian minorities in the Balkans into an essential element of
their foreign policies towards the Ottoman Empire.
When the Armenian relocation began in the fifth month of 1915, the British,
French and Russian Governments, namely the belligerents and the enemies of
the Turks in the current war, issued immediately on 24 May 1915, a joint
declaration in which they said the following: “...[I]n the presence of these
new crimes of Turkey against humanity and civilization, the allied
Governments publicly inform the Sublime Porte that they will hold personally
responsible for the said crimes all members of the Ottoman Government as
well as those of its agents who are found to be involved in such massacres”.
However, the U.S. Secretary of State Robert Lansing, who was clearly not a
Turkish sympathizer, is known to have admitted that the Turkish Government
had “more or less justifiable” right to deport the Armenians, provided that
they lived “within zone of military operations”. In an obvious
contradiction, a report resulting from an investigation of the war crimes
committed by the Christians during the 1912-13 Balkan wars, in violation of
the Hague rules (1907), failed to talk about the ‘crime against humanity’ in
the face of the worse tragedies that the Turks had suffered.[2]
The Hague rules highlighted the crimes a country would commit in war. Those
rules had not been envisaged to be applied to the crimes a country would be
accused of having committed in its own territories. It is no secret that
when, at the Paris Peace Conference (1919), the Greek foreign minister
suggested that a new kind of crime against humanity be created and there be
a trial for the ‘Armenian massacres’, President Woodrow Wilson initially
objected to that, saying that this would have been an ex post facto law. The
United States was against the creation of such a crime. The Versailles
Treaty with Germany stated that an international tribunal be set up. That
suggestion was unprecedented in history. However, the trial could not take
place, since the Netherlands refused to extradite Kaiser Wilhelm II who had
sought refuge there.
With the Sevres Treaty signed on 10 August 1920, the Ottoman Empire agreed
to a trial to be held in Turkey for the crimes in question (Article 226).
Creation of the tribunal was a task left to the victors and the Ottoman side
pledged to arrest and deliver to the tribunal the persons wanted. Historians
know about the ‘Nemrut Mustafa’ Martial Court set up in occupied Istanbul at
the end of the war, and about the defendants, who were taken to Malta-only
to be released by the British crown prosecutor due to lack of evidence. The
Sevres Treaty was later replaced by another international agreement, the
Lausanne Treaty that was signed on 24 July 1923. The latter included a
declaration of amnesty for all crimes committed between 1 August 1914 and 20
November 1922.
It is common knowledge that genocide reached its full dimensions during
World War II when Nazi Germany exterminated the Jews, describing it as the
“Final Solution”. The word ‘genocide’ was coined by Raphael Lemkin, a Polish
Jewish scholar. When Lemkin was a student, he followed closely the trial of
the defendants implicated in the Armenian incidents, which he considered
genocide. Lemkin’s concept of that crime was a very comprehensive one. His
definition embraced the political, economic, social, cultural, moral,
physical or biological destruction of the minorities. The law, which evolved
in more recent times, came to consider ‘genocide’ not any act committed with
the aim of destroying just any group but only certain groups; and only if
those groups were destroyed physically or biologically. In other words, the
latter greatly narrowed down the scope of the description originally made by
Lemkin, simply by excluding from the interpretation of genocide political,
economic, social, cultural and moral destruction of groups.
Since, at the time, what the Nazis did to the Jews in the early 1940s had
not been fully known, Britain and the United States especially did not favor
of having an international tribunal deal with the crimes committed within
the borders of Germany. They were, on the other hand, maintaining that for
the crimes committed by that state outside its national borders, that is, in
the countries it occupied, the persons responsible should be put on trial.
Thus, the respect in the Westphalian system for the sovereignty of the
nation-state would continue. The law of war envisaged the officials of a
given country to be subject to international adjudication only for crimes
committed, inter alia, against civilians in another country in times of war.
The concept of crime against humanity, though discussed in doctrine, had not
yet become actually part of international law, in a way that would apply to
the crimes committed inside the country as weft.
As the wide scope of the offences that the Germans had committed against the
Jews gradually emerged, the idea that the persons responsible for the crimes
committed within the country too should be put on trial, started gaining
ground. This step, initiated in 1941, reached a new stage with a proposal
the United States presented to the London Conference four years later. It
invoked the “Martens Clause” of the Hague Conventions. Thus, it envisaged
that if a crime had not been clearly defined in advance, “the principles of
law of the nations as they result from the usages established among the
civilized peoples, from the law of humanity and from the dictates of the
public conscience” would be applied to it.
However, since the “Martens Clause” is a concept of the law of war,
adjudication of the crimes committed within the country itself has been
linked to the concept of starting the war. Thus, the reference to war was
creating an excuse for intervention in domestic affairs. The minutes of the
London Conference indicate how adamant especially the United States was to
ensure that the intervention in Germany’s domestic affairs would not
constitute a precedent, which would allow other countries to intervene in
American domestic affairs in the future. This understanding eventually
helped to formulate the principles of the Nuremberg Court (which came to be
known by the same name) that was to try the German war criminals, including
those responsible for the Jewish genocide. The principle, specified as “VI”,
is as follows:
a. Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a
war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of
any of the acts mentioned under (i).
b. War crimes:
Violations of the laws or customs of war which include, but are not limited
to, murder, ill-treatment or deportation to slave labour or for any other
purpose of civilian population of or in occupied territory, murder or
ill-treatment of prisoners of war persons on the seas, killing of hostages,
plunder of public or private property, wanton destruction of cities, towns,
or villages, or devastation not justified by military necessity.
c. Crimes against humanity
Murder, extermination, enslavement, deportation and other in-human acts done
against any civilian population, or persecutions on political, racial or
religious grounds, when such acts are done or such persecutions are carried
on in execution of or in connexion with any crime against peace or any war
crime.
As can be seen from the definition of the crimes against humanity, the
crimes committed against the Jews would be a subject for international
adjudication even if these were committed inside Germany. The only
stipulations were that there should be a link (nexus) between these crimes
and the war, and that they should be committed during such hostilities.
Thus, the victors could not abandon the principle that in order to be able
to intervene in the domestic affairs of a country, one had to be in a state
of war with that country. Even the extermination of the Jews and others with
a brutality unprecedented in history did not suffice to ensure that the
crimes committed in a given country would be automatically subjected to
international adjudication. Although the term genocide had been coined by
then, the genocide concept was not elaborated among the Nuremberg
Principles. The concept of crimes against humanity embodied the crime of
genocide. The latter had not gained, at that time, enough clarity and
precision to constitute an independent crime category.
The Nuremberg trials began in October 1945 with the reading out of the
indictment against 22 Nazi defendants, and it ended a year later. Of the
defendants, 19 were convicted, 12 of whom were executed. During the trials,
the prosecutor used the term genocide from time to time but the verdict did
not refer to that crime.
The U.N. General Assembly Resolution No. 96 (1)
The first document of a legal nature containing the term genocide was
Resolution No. 96 adopted by the United Nations General Assembly in December
1946 soon after the Nuremberg trials ended-in fact, during the first session
it held in the wake of the trials. The purpose of that resolution was, as
specified in the last paragraph, to demand that the ECOSOC prepare a draft
convention on genocide in a year. But, on this occasion, the General
Assembly explained what it understood from the word genocide. It was “a
denial of the right of existence of entire human groups”. That was likened
to homicide as it was “the denial of the right to live of individual human
beings”. The reference made to the right to life, later, caused a link to be
formed between human rights and genocide. After all, genocide was,
basically, the killing of individuals. Genocide caused the loss of the
cultural and other kinds of contributions these groups of people would be
making to humanity. Thus, the cultural genocide concept, to which Lemkin
attached importance, came to be indirectly included in the resolution. The
groups that could be subjected to genocide were cited as “racial, religious,
political and other” groups. That was an admission of the possibility that
virtually any group of people could become genocide victims. The term also
meant, not only extermination of a group as a whole, but also in part.
Probably the most important aspect of the resolution is that genocide was
considered a crime according to international law. This deliberation aimed
at preventing genocide in a country from being considered that country’s
domestic affairs on account of the principle of state sovereignty and also
to prevent the culprits from evading international penal procedures. The
principle thus introduced was that those who committed the crime of genocide
should be punished, regardless of their being private citizens or public
servants or statesmen. Since the genocide law had not yet developed,
adequately as a source, however, the sponsors stressed instead its violation
of the ‘moral laws’. In this vein, civilized states were denouncing
genocide. The resolution listed “religious, racial, political or any other”
reasons as grounds on which genocide could be committed, in association with
the groups of people subjected to genocide. In this respect, with the
addition of the words “other reasons”, it expanded further the scope of the
definition given in the Nuremberg principles (6/c), which pertains to the
crimes against humanity.
The preamble of the resolution stated that ‘political groups’ could be the
victim of genocide. If the civilians who were part of groups engaged in
political struggle (for example, resorting to arms with leftist
revolutionary ideological aims or waging a struggle for independence) came
to be massacred even in part (not as the entire group but in significant
numbers) that alternative would still be considered genocide. The concept of
genocide embodied in this resolution became almost totally identical with
the concept of crimes against humanity, as defined in the Nuremberg
Principles while severing the link between genocide and war. In other words,
it admitted that genocide could take place in times of peace as weft. It
acknowledged also that genocide could be committed, not only in the
territories a given country occupies in war, but also within the national
borders of that country itself.
Thus, this resolution recognized any killing of a large number of people,
i.e., en masse, as genocide regardless of the kind of the group, grounds,
time or place.
The Convention
The Genocide Convention was adopted on 9 December 1948, and it took effect
on 12 December 1951. The crime of genocide is described in Article 2 of the
Convention as follows:
“In the present Convention, genocide means any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”.
The Convention was debated -on the basis of a draft presented by the U.N.
Secretariat- by the Ad hoc Committee and the General Assembly’s Sixth
Committee dealing with legal affairs. Since the Armenian incidents will be
reviewed later in this paper within the framework of the Convention, it will
be useful to make a brief assessment at this stage of the Convention in
general and of Article 2 in particular.
Protected Groups
The groups to be protected under the Convention mentioned in Article 2 are
limited to four types, that is, national, ethnical, racial and religious
groups. Lemkin, who had defended the inclusion of the political groups,
suggested himself during the deliberations on the draft text that the
political groups be left outside the scope of the Convention. Unlike
Resolution No. 96 (1), neither the ‘political groups’ nor the ‘other groups’
found their way into the Convention text. This modification constitutes a
highly important difference because history shows that the most frequently
seen struggles-and the ones that claim the largest number of civilian lives-
take place between groups with political aims. Accordingly, for example, the
massacres committed in Cambodia by the Pol Pot regime causing the deaths of
nearly two million civilians did not fall within the scope of the genocide
definition given by the Convention. Similarly, the deaths that occurred in
the framework of the October Revolution (1917) cannot be considered
genocide. In line with many verdicts of the International Criminal Tribunal
for former Yugoslavia, save perhaps some exceptional acts which will be
judged in the future trials as genocidal, even the extensive Serbian ethnic
cleansing In Bosnia-Herzegovina does not correspond to the definition of the
crime of genocide.
The term ‘political group’ covers civilians along with the members of the
group engaging in politics or waging an armed struggle. At first glance,
this inevitably causes confusion. There are those who question why
destruction of civilians affiliated with a group described as political
should not be considered genocide. But this is a semantic problem that
arises from the ‘definition’. A group comes to be called a ‘political group’
when an attempt is made to destroy it with political aims. In other words,
if there is a political struggle between two groups and if, in the course of
that struggle, one of these groups commits against the other group acts such
as murder, injury, massacre or deportations the injured party comes to be
called a political group. Killing civilians in the course of a political
struggle continues to be a crime. But that crime is not genocide.
The phrase about a group’s cultural contribution to humanity as embodied in
Resolution 96 (1) is not included in the Convention. This indicates that the
concept of ‘cultural genocide’ has also been left outside the scope of the
Convention.
The fact that the Convention does not consider genocide the acts perpetrated
against political groups and the obliteration of the minority cultures
through forced assimilation has significantly narrowed down the scope of the
Convention when it came to implementation. For this reason, from 1951, when
the Convention was adopted, to 1992 it could not be implemented with a few
not so-significant exceptions. This has drawn strong criticism. Some say
that the Convention has not served any useful purpose. On the other hand,
many historians, sociologists and thinkers tended to interpret genocide in a
broader manner than the definition in the Convention allows. If and when
they found out that a significant number of civilians had died in a case
they studied, they claimed that this was genocide. Another group of
academics, meanwhile, suggested new definitions of genocide in order to
expand the scope of Article 2 of the Convention. Both sides ignored the fact
that extermination of those groups, which remain outside the four groups
protected by the Convention, was already punishable within the framework of
“crimes against humanity”. Attempts to expand the concept of genocide to
cover also crimes against humanity, seemingly, result from the fact that the
international community, which was so sensitive to genocide, failed to
display as much awareness toward the crimes against humanity. Indeed, for a
long time, the international community was not prepared to set up
Nuremberg-type international tribunals to protect the victims of the crimes
against humanity. Moreover, these groups could not be protected effectively
under human rights law in times of peace or under humanitarian law or the
law of war in times of war. Consequently, the definition of genocide was
broadened by some commentators to embrace all serious crimes committed under
the laws of war and human rights.
That situation changed to a great extent, thanks to the activities of the
two international criminal tribunals set up following the incidents in
Bosnia-Herzegovina and Rwanda. Those who commit crimes against humanity and
war crimes began to be punished. Further, the Statute of Rome related to the
International Criminal Court has eliminated all the loopholes in the law. In
addition to inter-state wars, ‘crimes against humanity’ can now be committed
in times of peace, and together with other war crimes they can be committed
in internal conflicts as well. The Statute of Rome took Article 2 of the
Convention without any change and made it its Article 6. On the other hand,
Article 7 of the Statute of Rome, which is the reformulated version of the
Nuremberg Principles paragraph 6(c) on crimes against humanity, as well as
the relevant articles of the statutes of the international tribunals set up
for former Yugoslavia and Rwanda, covered the crimes of extermination,
persecution, deportation and the like committed against “other groups” not
protected by the Convention.
Intent
A crime consists of two parts. One is the mental or subjective element (mens
rea). This component refers to the intention, aim and will to commit a
crime. The other is the act of crime itself, the material or objective
element (actus reus). In Article 2 of the Convention the phrase “with intent
to destroy” represents the mental element. The acts committed with such an
intent are listed from (a) to (e).
One of the most important characteristics of the Convention is that for the
crime of genocide to exist, acts must have been committed only with the
intent to destroy one of the four afore-mentioned groups. The intent to
destroy a group must be in the form of ‘special intent’. In other words, it
must be fully evident, i.e., beyond any doubt. If the intent to destroy gets
declared openly by those who commit the act of genocide or by those who
ensure its commission, then there is no controversy. If there is no such
oral or written statement, then the presence of genocide becomes debatable.
Some jurists stress that at this point one has to look at the consequences
of the actions, and they consider it enough, if a significant number of
deaths occurred, as a result of these actions.
However, the concept of ‘general intent’ is valid for ordinary crimes, that
is, the short-cut interpretation that the person who committed the act is
considered of having an intention commensurate with the consequence of the
act. The same concept is simply inadequate in the identification of the acts
of genocide. On the other hand, those who commit genocide generally do not
declare their intent to destroy. If no clear evidence of an oral or written
kind can be found in order to prove genocide, some other elements must be
taken into consideration along with the ‘significant number of deaths’. As
the crime of genocide mostly gets committed by the states or other
large-scale organizations of a similar kind, one tries to determine whether
the crime was committed by an “organized force” to find out whether there
was ‘special intent’. Since genocide is destruction of a large number of
people, that is, members of a group, it is important to determine whether
that organization had prepared a ‘plan’ well in advance. Also, that
organization must have organized a force to implement its plan and carried
it out in a coordinated, systematical and massive manner. . .
From the standpoint of its organization, its implementation and its
consequences, the Jewish genocide may be, as an exceptional example,
incomparable with the other cases. The decision to introduce a “final
solution” for the Jewish genocide was taken at the Wannsee meeting in 1942,
and the crime was confessed during the Nuremberg trials. But even if the
intent to destroy had not been revealed clearly like that, one could take
into account the discriminatory laws passed against the Jews, the “pogrom”
type attacks including the “Crystal Night” of 1938, and the way the Jews had
been driven out of the society and forced to live in the ghettos where they
could not meet normal human needs as the preliminaries heralding a genocide.
Besides, the virulent anti-Semitism had begun as a movement no less than
fifteen years prior to the genocide, and the words and writings of Hitler
and the other Nazi ideologues in the framework of that movement, make it all
too clear the intention to destroy the Jews. Similarly, among the Serbs,
having an ethnically homogenous homeland had been a widely-used rhetoric
since 1981. In fact, the ‘ethnic cleansing’ as a concept was allegedly
invented by V. Seselj, one of the Serbian paramilitary leaders.
To prove the presence of the intent to destroy, which must be ascertained to
show that a given incident was genocide, one has to look at the period
preceding the perpetration of the acts of genocide, and investigate whether
that kind of intent had begun to take shape. The presence of a state-like
organization, a plan and its implementation by an organized force are being
considered as factors leading to a presumption of the presence of the intent
to destroy.
Motive
Not only the intent with which the crime is committed, but also the reason
or the grounds for that intent are vitally important. This urge is set forth
as motive, described in the Nuremberg Principles 6 (e) involving the crimes
against humanity, as “murder, extermination, enslavement, deportation and
other inhuman acts done to any civilian population, or persecution on
political, racial or religious grounds”. Resolution 96 (1), on the other
hand, stated that the crime of genocide may have been committed “on
religious, racial, political or any other grounds”. According to Resolution
96 (1), the motive for genocide was more comprehensive than even the motive
for the crimes against humanity as embodied in the Nuremberg Principles.
Expressed differently, in an armed clash with a group triggered by an
existing religious, political or any other kind of dispute, leading to the
deaths of a significant number of civilians, could be both genocide and a
crime against humanity.
The Convention created quite a different situation. Article 2, not only
limits the “intent” to the destruction of only the four groups, but it also
narrows down greatly, as we shall see below, the grounds for destruction
compared to the bases cited in the two afore-mentioned documents.
During the debates on the Convention, the issue of grounds to destroy
triggered lengthy discussions. The representatives of many countries argued
that proving the presence of motive would be very hard. If such a
requirement were to be stipulated, that would make it impossible for the
courts to deliver genocide verdicts. The important thing was to prove that
the act was perpetrated with intent to destroy. However, during debates at
the Ad hoc Committee, the Lebanese representative stressed the importance of
the motive, saying that genocide was destroying a group “with racial
hatred”. Later, during debates at the Sixth Committee, despite the
objections of the British and American delegates, the phrase “as such” which
meant that only acts aimed at destroying members of one of the four groups
due to no other reason than his or her belonging to that specific group, was
inserted in Article 2 of the Convention. This was achieved with the
insistence of the Soviet Union that was leading the “Anti-Fascist Front”
with the support of the majority This phrase can escape attention at first
glance. It does not have its Turkish equivalent and needs to be translated
in an explanatory manner. Probably because of that difficulty, it has always
been neglected by historians.
One has to take into consideration whether, in the perpetration of the crime
of genocide, the motive was collective or individual. When an individual
kills a member of the target group, this may not necessarily stem from the
fact that the victim was a member of that specific group. The motive may
have been something else. For instance, it may be a matter of revenge or a
desire to confiscate the victim’s money or other possessions or a mere act
of political ambitions. Genocide, on the other hand, is a collective crime.
The organizers and planners of genocide must have acted with a racial motive
not with a political, religious or any other reason. If they acted against
the target group with motives other than racial hatred, the acts of genocide
cannot possibly be perpetrated, for under those circumstances there would be
no way to have an intent to destroy a group “as such”. Only could a
murderously intensive racial hatred towards a group gives rise to such a
deadly intent. As a result, to prosecute the crime of genocide successfully,
one has to prove that the defendants felt racial hatred towards the target
group to the extent that they became determined to destroy that group ‘as a
group’. Punishment of genocide applies only to this kind of crime. In that
context, the Jewish genocide of the Nazis and the Rwanda genocide of the
Hutus can be considered classical cases of genocide.[3]
Sociologically and psychologically, the intent to destroy a group due to its
group character, emerges only in racism, or, to put It more correctly, in
the most intensive stage of racism. Racial hatred is quite different from
the ordinary animosity laced with anger parties engaged in a substantial
dispute may feel towards one another. Racial hatred is a deeply pathological
feeling or a complicated fanaticism the causes of which cannot be explained
easily. It is an emotional state such as the racist movements in Western
Europe, i.e., anti-Semitism, have harboured and peaked on and off for two
thousand years and, more actively, in the past millennium. It is a malignant
form of prejudice. The Nazis were the product of that culture under
exceptionally difficult socio-economic conditions of the inter-war period
and the Great Crash of the 1930s. To understand how different that feeling
is, it would suffice to read a few of the publications that fill the
libraries.[4] Meanwhile, the Rwanda International Criminal Tribunal
documents on the Akayesu case provide information about the history of the
racial relations between the farmer Hutus of the Bantu race and the
Nilo-Hamitic Tutsis, the shepherds coming from the north eastern parts of
the continent probably in the 16th century.
Racial feelings, which exist everywhere in the world, can disturb the target
group to varying degrees. However, racism that reaches the stage of actually
destroying the target group, has been seen predominantly, even exclusively
in the western half of Europe and its white colonies in north America, south
Africa and Australia.[5] In this context, one could list the Cathars being
subjected to genocide in France in the 1206-48 period, the Jews in Spain
through the 14th century to 1492, the genocide of the indigenous peoples who
created the Inca, Aztec and Maya civilizations by the Spaniards in the 16th
and 17th centuries, and the so-called Red Indians, by the Americans in the
18th and 19th centuries. Also, there was the Dutch Boers’ apartheid regime
in the Union (later, Republic) of South Africa in the 19th and 20th
centuries and, during the same time, the Australian aborigines were
subjected to some genocidal acts by the white Australians.
Some societies that created other civilizations too persecuted the civilian
populations they consider to be the enemy. However, in those cases, no
presence of “racial hatred” leading to the intent to destroy those people as
a group can be determined. In the Islamic and Turkish civilizations
especially, genocide has never been committed. Otherwise, it would have been
impossible for those civilizations to found many multi-ethnic and
multi-religious empires that survived for centuries. It must not be
forgotten that despite their great technological superiority, the colonial
empires set up by the powerful countries of the Western civilization managed
to survive only a little more than a century on the average.
The fact that the definition of genocide in the Convention became limited to
acts perpetrated with the intent of destroying a group as a group leaves out
the persecution of civilian societies with other reasons. This loophole, as
I stressed earlier, was eliminated with the definition of the crimes against
humanity given in the Nuremberg Principles (Article 6/c), a definition,
which covers those kinds of crimes. The articles on crimes against humanity
in the statutes of the International Criminal Tribunals for Rwanda and
former Yugoslavia, and, finally, in the International Criminal Court’s
Statute of Rome, fulfil this function.[6] Briefly, the crime of genocide has
been taken out of the persecution category of the crimes against humanity as
defined in the Nuremberg Principles, confined to four groups, based on
‘intent to destroy’ those groups ‘as such’ and given the highest or the
lowest rank in the hierarchy of crimes.
In Whole or in Part
In Article 2 of the Convention, acts perpetrated with the intent to destroy
a group, “in whole or in part”, are called genocide. In other words, one
does not have to destroy a given group in whole for those acts to constitute
genocide. There seems to be a contradiction here. Would the kind of racial
hatred that creates the will to destroy a group as a group, satisfy itself
with destroying only part of that group?
Even the Nazis could not exterminate all the Jews. Until the year in which
the war began, they made life for the Jews extremely hard and thus ensured
some of them to leave Germany. After the war began, they prevented even
those who wanted to flee, from leaving the country, and exterminated all
Jews inside Germany. Finally, they subjected to genocide the Jews living in
the countries they occupied, rather than expelling them.
Two conclusions can be deduced from all this. Either even for the Nazis, the
motive for destroying a group as a group attained the critical intensity
only under war conditions or, in reality, the German reach to the Jews was
more limited than it looked, and they exterminated those whom they could lay
hands on, without permitting them to escape.
With this provision, those who made the Convention probably aimed to ensure
that the international community should reach the conclusion that genocide
has been committed without waiting for the destruction of a group in whole
and to prevent the genocide envisaged in Article 1 and punish it on time.
Application of the Law to the Armenian Incidents
At a hearing of a U.S. House of Representatives subcommittee on 21 September
2000, the Armenian apologists said that they no longer needed the opening up
of the Turkish archives and that on the basis of the existing information a
consensus was achieved to the effect that the Armenians had been subjected
to genocide. Half of their arguments were right in a way. However, the
concluding statement was exactly the opposite of what they argued. The
existing archival material was adequate to prove that no genocide had been
committed. Hence, it was not possible for the new archival material to
contradict the existing information.
The assessment below is made with the assumption that the readers have
adequate historical information about the Armenian incidents. Still, it may
be useful to take a brief look at the historical context in which the
incidents took place. Since the beginning of the 19th century the Russian
advance in the Crimea and the Caucasus uprooted the Muslim populations,
mostly the Turkish, and drove them towards Anatolia in successive waves of
migration during which large numbers of them perished. The Armenians in the
Caucasus helped the Russian armies in return for which they were settled in
regions, which had been ethnically cleansed from the Turks and the other
Muslim peoples of the Caucasus. This process of expulsion and resettlement
eventually led to the founding of the Armenian state in the early 20th
century. In the course of its expansion the Russian forces entered the
north-eastern corner of Anatolia during the wars of 1827-29, 1854-56 and
1877-78. On each occasion, the Armenians sided with the Russians, thus
sowing the seeds of future ethnic conflict.
During the Balkan Wars (1912-13), the Ottomans lost all their European
territories with the exception of Eastern Thrace. In most of those
territories, they had constituted the majority, although sometimes slim, of
the population. Turks and other Muslims such as Albanians and Pomaks lost
their lives in great numbers. Consequently, large civilian groups were
uprooted from their homes and driven towards Anatolia. World War I, which
began year later, was to seal the fate of the empire. The Ottomans were
fighting with the armies of Tsarist Russia in the east, with the British and
French navies at Gallipoli, and with the latter’s armies on the Egyptian,
Syrian and Iraqi fronts in the south.
At the start of World War I, the Armenians constituted an estimated 1,3
million and the Greeks about 1,4 million, with the Turks and Muslims making
up the rest of the total 17,5 million population of Anatolia.[7] It is known
that unlike the Catholic and Protestant churches, the Greek Orthodox and the
Gregorian Armenian Churches did not keep population records. For that
reason, the exaggerated statistics put forth by the Armenians do not rely on
a sound source. The Ottoman statistics are considered closest to the truth,
for those statistics could have never been manipulated with the assumption
that the country would one day be dismembered and the distribution of the
land would be based on statistical data. On the contrary, the sound
population statistics were necessary for tax administration and military
conscription. Quite naturally, the statistics originating from European
sources are not far from the Ottoman ones. Though the first director of the
census administration, which was set up in Istanbul in 1892, was a Turk, the
department later operated under a Jew named Fethi Franco between the years
1893-1903, subsequently an Armenian named Migirdich Shinopian, and, as of
1908, an American.
Armenian Aims and Their Struggle
In order to prove that the 1915-16 incidents were genocide, that Is, that
the Armenians were subjected to genocide, not as a political group but as an
ethnic or religious group, most of the Armenian apologists either refer only
briefly or do not refer at all to the politically-aimed Armenian activities
including terrorism. Some of them assert that the Ottoman administration was
oppressive, and that the Armenians engaged in political activities to defend
themselves against it or to gain their rights. They condone, as legitimate
defense against a ‘big and cruel power’, the way the Armenians resorted to
terrorist violence, as in the cases of the ‘komitaci’, hajduk, klepsos or
chetniks of the Christian peoples of the Balkans.[8]
Historically speaking, the states do not start ethnic strives except in the
case of racist assaults on target groups. But, as I have explained earlier,
there was no racism in the Ottoman Empire. It is all the more logical that
the ethnic groups initiate struggles for independence in disintegrating
empires. That is what happened in the late Ottoman period.
In order to reach their political objectives, the Armenians embraced the
Balkan liberation struggle model. Just like the Balkan Christian peoples,
they got organized and engaged in political activities. This is, in fact,
not so strange. In the aftermath of the French Revolution, the idea of
nation-state prevailed, and independence struggles against the
multi-religious and multi national empires were considered legitimate. The
Armenians clearly engaged in this kind of activity with the blessing, and
often with the material support, of the Great Powers. There was no way, some
Armenians thought, that this kind of struggle could be successful without
resorting to violence. The use of violence would have to comply with the
rules of the law of war. However, the Christian peoples of the empire almost
always violated the law in the course of their armed struggle.
The Balkan-type use of violence constituted a model in that the terrorist
groups would attack the civilian Muslim population to provoke them to
retaliate. If the Muslims retaliated or if the administration took military
action, there would be loud cries of persecution and calls on Europe to
intervene. The great Christian Powers would impose on the Ottomans reforms
favoring the Christian population. Those reforms started with local
administration rights and extended towards autonomy. After some time,
Ottoman sovereignty in certain parts of the empire became nominal. With the
first armed conflict, those regions gained independence with foreign
intervention and assistance.[9] [10] [11] [12]
In the 1880s, the Hinchags announced, as the goal of their armed struggle,
that they established an (imaginary) Armenia in a region called Vilayat-I
Sitte that is the six provinces in eastern Anatolia namely Erzurum, Van,
Elazýð, Diyarbakýr, Bitlis and Sivas. According to today’s administrative
division that region covered also the provinces now called Erzincan, Aðrý,
Muþ, Siirt, Hakkari, Bingöl, Malatya, Mardin, Amasya, Tokat, Giresun, Ordu
and Trabzon.
Armenians did not prove successful in that struggle. Therefore, they may
compare their lot with that of the luckier Christian peoples of the Balkans
and feel unfortunate or injured. However, in order to defend the genocide
thesis they cannot simply claim that the Turks subjected them to ‘death
marches’ out of their cruelty, that they were too innocent even to nourish
political aspirations, not to mention armed struggle, and that, in view of
the above, what they were subjected to was genocide by Turks in the sense of
Article 2 of the Convention.
Historical research clearly shows, on the other hand, that the Armenians
constituted a political group par excellence that engaged in armed political
activities for independence. Opting for relocation in the course of a
defensive struggle against a local political group that joined hands with
the enemy, i.e., Russian occupiers, and resorted to arms as well as
systematic terrorist actions amounting to grave breaches of the law of war,
does not constitute genocide in accordance with the definition of that
crime. Further, the crimes committed, if any, in the course of this type of
struggle would not amount to genocide either.
Motive
A political group entertaining political aspirations and pursuing activities
to serve such purposes may also be a national, racial, religious or ethnic
group. Some political groups too, as in the case of the Armenians, may well
be described, on the basis of some other characteristics they have, as an
ethnic or religious group or simply ‘other” group. However, being a
political group indicates that the incidents in which group gets involved
stem from political reasons, first and foremost.
When evidence points at the fact that a given group has engaged in political
and armed activities, there is no way that a particular group cannot be
considered as falling under the protective clauses of the Convention which
deals only with genocide. As it is explained briefly in the last few
paragraphs, the ‘parties’ or organizations such as Dashnag and Hinchak, as
well as the Armenian Patriarchate acting in the name of and supported by the
Armenians, aimed as a first step at reforms, which envisaged a broad
political autonomy, and eventually, secession and independence. To this end,
they zealously engaged themselves in the politics of ethnic struggle, openly
advocating and resorting to force including terrorism. Due to these
distinctive and well-documented characteristics, the Armenians constituted a
political group well before the relocation began.
Furthermore, as already explained earlier in this article while elaborating
on the law pertaining to genocide, the Intent to destroy a given group
emerges only when the racial hatred harboured against that group reaches a
certain intensity. It is a weft-known fact that in the Ottoman Empire no
racial hatred was ever nurtured by the Muslim majority towards the
Armenians. In fact, the kind of racial hatred similar to anti-Semitism in
the West was never observed in the history of the Islamic and Turkish
societies.
A brief comparison may be useful with the Holocaust at this point. The
German Jews neither engaged in a struggle for independence, nor did they
ever chase after territorial claims. No one can deny that they did not
resort to terrorism massacring innocent German civilians. It is common
knowledge that they did not join hands with the armies of Germany’s enemies
in war. They did not stab the German armies on the back by blocking the
strategic roads and logistic lines. The Jews of Germany and Europe
constituted a totally innocent group with respect to politics. A peaceful,
civilized and successful group, which then won eleven of the forty Nobel
prizes, a group which had become fully integrated into the German society,
was destroyed with a virulent racist hatred called anti-Semitism in an
exceptionally efficient and systematic manner, planned in advance and
implemented with a massive organizational drive, for no other reason than
being a group.
Starting with Hitler, countless authors expressed for many years a profound
enmity towards the Jews. Anti-Semitism, which rose dangerously fifteen years
prior to the Holocaust, was a movement that had been continuing actively
since the beginning of the second millennium. In Western Europe in general
and In Germany In particular, there had been innumerable cases of attacks on
the Jews in the aftermath of epidemics such as plague natural disasters such
as floods or earthquakes or defeats suffered in wars. In the course of these
attacks, members of the Jewish community were killed, and their assets were
plundered. In other words, the Christian communities blamed the Jews for the
disasters that struck them. They accused the Jews of deicide or killing
Jesus Christ, for which they were considered to be ‘Anti Christ’. There
exist thousands of documents and publications cataloging various aspects of
anti-Semitism. There were anti Semites even among the Renaissance writers
whom one should expect to be rational thinkers. Anti-Semitism can be
discerned frequently also in some of the romantic writers of the age of
Enlightenment. It is no secret that to a certain extent Heidegger and even
Jung, a leading philosopher and a psychiatrist of the last century, were
anti-Semites.
In Ottoman history, on the other hand, there had never been a similar
‘anti-Armenianism’. There was no biologically motivated super-race theory
for the Muslims to debase the Armenians, portraying them as a subhuman race,
or a Social Darwinism that would complement this attitude. Since Islam
considered the Christians to be a “people of the book”, that is, believers
in monotheism, the Muslims never directed against the Christians the kind of
accusations the Christians levelled at the Jews. In natural or man-made
disasters, the Armenians or the other Christian groups were never turned
into a scapegoat. On the contrary, the Armenians came to be called “the
loyal people”. They were active in the realm of public service. They became
civil servants, some of them serving at the highest ranks of the central
administration as governors, paþas or provincial governors, representing
their state as ambassadors—even serving as the country’s foreign minister.
Since they had the opportunity to be trained at the schools opened by the
missionaries in the Ottoman Empire as of the beginning of the 19th century,
they quickly flourished and came to dominate the empire’s economy. Unlike
the Jews in Europe, they were not banned from practicing certain
professions. They were not forced to live in ghettos. Though they were the
most affluent class, they were not subjected to pogroms out of envy or
grudge. Therefore, it cannot be said that the Armenians were destroyed out
of racial hatred directed at their group.
Under the circumstances, the determination of the nature of the motive
behind the relocation gains importance. If that motive arises from a reason
other than the Armenians being Armenians, that is, for example, from a
military, political or some other kind of reason, then this cannot
accommodate itself with the definition of genocide.
A brief glance at recent history may prove useful to apprehend what has
really happened with respect to the Armenians. According to the San Stefano
Treaty, signed at the end of the 1877-78 Ottoman-Russian War, ‘greater
Bulgaria’, which, in the Balkans, had coastlines bordering both the Aegean
and the Black Seas and which included parts of Macedonia, was to become an
independent country. That country attained a more homogeneous population
when 260,000 Turkish civilians died during the war, and 515,000 others were
driven out of the country. Similarly, the 70,000 Turks amid Muslims of the
Caucasus fleeing from the Russian armies, which had advanced all the way to
Erzurum, took refuge in eastern Anatolia. The exact number of civilians who
died in that region is not known.[13] The treaty also envisaged “reforms”
for the Armenians living in the Ottoman lands. A certain article involving
reforms was included in the treaty in line with the demand made by the
Armenian Patriarch Nerses II during a visit to the Russian Grand Duke
Nicholas who had arrived in Yeþilköy, next door to Istanbul. Thus, the
Armenians placed themselves under Russia’s protection in an internationally
binding document. The reforms sought under the Tanzimat and Islahat edicts
until then had been envisaged for all Christian subjects of the Ottoman
Empire. But this time, reforms were being asked for only one particular
group and Russia was going to supervise its implementation.
When the other Great Powers did not endorse these concessions obtained by
Russia on its own initative, the Berlin Congress was held, and it was there
that the dimensions of Bulgaria were trimmed down. However, the return of
those Turks, who had been forced to leave their homelands, could not even be
attempted. The reforms envisaged for the Armenians were confirmed, on the
other hand, but this time under the supervision of all the Great Powers.
During the years 1912-13, the Balkan Wars took place between the Ottoman
Empire on one side, and Greece, Bulgaria and Serbia on the other. In those
full-scale armed hostilities, 1,450,000 Turkish, Albanian and Pomak
civilians died. Another 410,000 were exiled towards Anatolia, fleeing from
the attacking armies, under bombardment, leaving behind their destroyed or
burnt homes. Thus, in many places that the Turks had known as their homeland
for five centuries, including vast areas where they constituted the
majority, the Turkish and Muslim existence was brought to an abrupt end.
Cultural assets, the legacy of so many years, were torn down. World War I
began only a year after hundreds of thousands of those refugees had arrived
in the remaining parts of the Ottoman Empire.
The Ottoman Government, whose leaders held a crucial meeting with the
Dashnag representatives in August 1914, obtained a pledge from the Armenians
to the effect that they would act like loyal Ottoman citizens in the Great
War. However, at a secret Dashnag meeting held in Erzurum two months prior
to that, a decision had been taken to start a wide-scale Armenian rebellion
against the Ottomans to benefit from the opportunity provided by the war.
The Armenians failed to honour their promise. And they saw their interests
served better in serving the Russian interests.[14]
The Russian Armenians too took their places in the Russian armies, which
prepared to attack the Ottomans. Etchmiadzin Catholicos (the highest
Armenian religious figure in Russia) assured the Russian Governor General
for the Caucasus that ‘the Armenians would unconditionally support the
Russian war efforts in return for Russia’s ensuring that reforms be made for
the Ottoman Armenians”[15] Later, when he was received by the Russian Tsar
Nicholas II in Tbilisi, the Catholicos told the autocrat: “Armenian
liberation will result in an autonomous Armenia in Anatolia outside the
realm of Turkish sovereignty, and this will be achieved with Russia’s
help”.[16]
In March 1915, the Russian forces moved towards Van. Armenian insurgency,
which started in Van, turned into a full-scale rebellion on April 11, during
which the Armenian armed groups attacked the Muslim population killing and
expelling many. Ten days later, the Tsar sent a telegram to the Van Armenian
Revolutionary Committee and thanked them “for their services to the
Russians”. Gochnak, an Armenian newspaper published in the United States,
gave in its 24 May 1915 issue the ‘good news’ that “only 1,500 Turks” had
been left in Van.
The Armenian forces inside the Russian army that crossed the Ottoman border
were under the command of a former Ottoman deputy named Gareguine
Pasdermadjian who had adopted the revolutionary name of ‘Armen Garo’.
Another former deputy, Hambartsum Boyajian, code-named ‘Murat’, was at the
head of the guerrilla force attacking the Turkish villages and massacring
the civilian population. Yet another former deputy from Van, Y. Papazian was
the leader of the guerrillas fighting in the Van, Bitlis and Muþ region.
After issuing yet another warning, though in vain, to the Armenian
Patriarch, the Ottoman administration started on April 24 arresting the
leaders of the komitacis’ in Istanbul whom the Armenians chose to portray as
their ‘intellectuals’. One can clearly see from these developments the
reason for the relocation decision. The Armenian cooperation with the
Russian army, their rebellion in Van, and their guerrilla activity in ethnic
cleansing in the neighbouring provinces were, for the Ottomans, a re
enactment of an old story with which they were all too familiar. Just as the
Balkan Christians had done in the Balkans in cooperation with the Russians,
now the Armenians, moving together with the Russian armies, were starting to
subject the Turks and Muslims in eastern Anatolia to ethnic cleansing,
killing them and burning their houses. A decision was taken to transfer the
Armenians to another part of the empire mainly far from the eastern and also
the southern fronts to prevent the Armenians from continuing with these
military activities and from attaining their political goals.
The Intent to Destroy
According to Article 2 of the Convention, perpetration of one of the five
cited acts was a necessary condition for genocide, provided that it be
committed with the intent to destroy one of the four groups ‘as a group’.
However, the Armenian apologists focused their efforts to prove that the
Ottoman administration had the Intent to destroy the Armenians Since no
evidence of the existence of the intent to destroy could be found they did
not refrain from what should be called falsification.[17] An Armenian named
Aram Andonian published so-called “telegrams” in which Talat Paþa was
supposedly “ordering the extermination”. Though soon enough these were
foiled as fakes, they continued to use them as propaganda material.
Nevertheless, after some time, the failure to find any official documents,
which could corroborate the intent to destroy’, pushed the pro-Armenian
circles to adopt a new strategy. Obviously, what mattered was to achieve
pre-determined results. They started claiming that 1,5 million Armenians had
died during the ‘deportation’. Such an unduly high figure was being cited
beside its propaganda effect, to prove indirectly the presence of the intent
to destroy by way of deporting and thus to prove that genocide had been
committed. For that reason, the pre-transfer Armenian population had to be
revised upwards. One falsification led to another. History was being
distorted to make it coincide with the requirements of the law.
From the Turkish standpoint, Armenian engagement in political and armed
struggle for the sake of independence suffices to refute the thesis that
members of the group were killed because they were affiliated with that
group, and to prove that relocation was not genocide. However, systematic
and massive killing of a civilian population, even with political aims, may
constitute a crime against humanity.[18] Furthermore, the Armenian genocide
claim is now being based on Paragraph (e) of Article 2 of the Convention,
namely “Deliberately inflicting on the group conditions of life calculated
to bring about its physical destruction in whole or in part”.
This claim is presented along the following lines: Since the Ottomans were
wary of openly destroying the Armenians, they used the ‘deportation’ as an
opportunity to impose on the Armenians the kind of living conditions that
would cause them to perish. Through an ‘omission’ of their duty to protect
the Armenians from attacks during the ‘deportation’, to ensure safe
transportation, no less than to provide food, medicine, medical treatment
and shelter, they accelerated the deaths. The Armenian authors accused the
Teþkilat-ý Mahsusa, the Ottoman intelligence services, of having actually
organized the massacres committed by the criminals released from prisons.
These are the claims. It must not be forgotten that along with acts such as
murder which has a direct impact, causing deaths deliberately through
omission, can also be considered genocide.
Therefore, it is important to focus on whether the deaths resulted in the
course of relocation from an intent to destroy a specific group, hence
whether the relocation was a covert genocide. I recounted earlier in this
article that the relocation decision was aimed at preventing the Armenians
from collaborating with the Russian armies and, at the same time, from
saving the Turks living in the areas specified by the Hinchag’s map from
being subjected to ethnic cleansing as in the case of the Turks in the
Balkans. The Armenians had formed their own units inside the Russian
military forces and were fighting the Ottoman armies along the eastern
front. Ethnic Armenian soldiers were deserting the Ottoman armies fighting
on other fronts, joining guerrilla bands inside the country, attacking the
Ottomans from behind and cutting their logistic supply lines. The Van
rebellion constituted the first step of these activities.
Having seen that all hope of reaching an agreement with the Armenians had
been lost, and that the warnings it had issued via the Patriarch were not
being heeded, the Ottoman Government was left with no workable alternative
but to decide to transfer the Armenians to a region in Syria and northern
Iraq, which were then both Ottoman lands. In a telegram sent to Talat Paþa,
the Minister of Interior, on 2 May 1915, the Deputy Commander-in-Chief Enver
Paþa reported that the Russians were driving the Muslims in Russia towards
the Ottoman border, and that these people were in a pitiful state. He
referred to the Armenian rebellion in the vicinity of Van and suggested that
the Armenians should either be driven towards the Russian border or
dispersed towards some other areas. As a result, Talat Paþa personally
assumed responsibility to initiate the removal of the Armenians to other
parts of the empire instead of pushing them towards the Russian border, and
eventually to Russia. After a while, to share the responsibility he ensured
the passing of an interim law (30 May) relevant to the issue. The commanders
were authorized to instantly deal with those persons who disrupted law and
order, staged attacks or put up resistance, and to relocate one by one or en
masse the population of those villages or towns that engaged in espionage
and committed high treason. Thus, the relocation task was handed over to the
army.[19]
It should be obvious that it was out of the question for a decision to have
been made well in advance for the Armenian relocation. No advance planning
had been made prior to that decision, and the organizational preparations
needed had not been done either. A top military commander concerned about
the grave situation on the eastern front demanded urgent action, and the
government wanted to respond to that demand immediately It is so clear that
no pre-arrangements had been made in advance that Talat Paþa himself
Initiated the population transfer without even having a law passed to this
effect. He was so anxious to ensure that there would be no more delay. The
law came after action. Under the circumstances, everything points to the
fact that no plan was made ready, and no organization set up to implement it
with intent to destroy the Armenians.
The text of the law in question envisages, moreover, every effort to ensure
the security of the Armenians during the transfer, i.e., inter alia, the
safety of their lives and their assets. It states that the food to be
provided for them be financed from the ‘migration fund”, that they be
allocated plots of land at their destinations and houses be built for the
needy, that the farmers among them be supplied with seeds and equipment,
that they receive money for the assets they left behind, and that if anybody
were settled in the real estate left behind by them, the value of the real
estate should be calculated and the sum in question be forwarded to the
former owner.[20]
Furthermore, with regulations issued on 10 June 1915, the properties of the
resettled Armenians were placed under protection. They were extended aid in
cash and in kind to facilitate them to resettle at their destinations. The
real estate left behind were sold at auctions by the government on their
behalf, and a commission founded for this purpose made due payments to the
Armenians who demanded them.[21] With an order Issued to the Anatolian
provinces on 25 November 1915, relocation was suspended. The activity that
took place beyond that date was of a local scope only. Finally, at the
beginning of 1916, the whole operation was actually brought to an end. After
the war the Armenians were permitted to return to the places of their choice
as much as possible. Some steps were taken, not very successfully, to make
it easier for them to get back the property held in trust for them by the
commissions or sold at auctions.[22] All these measures could not be taken
to conceal a genocidal attempt.
In the communications that took place between the capital city and its
provincial administration on the movement of population, there is no
reference at all that could create the suspicion that there was any
intention to destroy the Armenians. On the contrary, one sees in these
documents that mutual requests were made to ensure that they be transferred
in a safe manner. Most interesting communications were exchanged between the
Erzurum Governor’s Office and Talat Paþa. Since that province was situated
on the Russian border, the region assumed priority. The provincial officials
were Instructed that the Armenians living there be permitted to take along
with them all of their movable personal belongings. In these documents, it
was also stated that there was no need to transfer the Armenians living in
Diyarbakýr, Harput and Sivas. But after the Russian threat grew In the
direction of central Anatolia as well, that decision was altered. When some
Kurdish citizens attacked a 500-strong group set off from Erzurum while the
convoy was travelling between Erzincan and Erzurum, the officials in
Diyarbakýr, Elazýð and Bitlis were told to punish, in a severe manner, any
raiders who might attack the Armenians in the villages and towns situated on
their path. Similarly, when Dersim highwaymen attacked the Armenians coming
from Erzurum, the Elazýð Governor’s Office was ordered to take urgent
measures. The Erzurum Governor obviously suspended the operation after
seeing that the Armenians could not be fully protected during the transfer.
He received a message telling him that a postponement was not possible, on
account of military reasons. Putting aside that instruction, transfers from
Erzurum were halted from time to time for the same reason.[23]
Despite all these measures, some Armenian civilians undoubtedly died during
the relocation. But It Is obvious that these deaths did not result from the
deliberate neglect of state duties. The 65,000-strong Ottoman army, fighting
along the eastern front, was also frozen to death in Sarýkamýþ. The harsh
climate and the rough terrain, the inadequacy of the military units charged
with protecting the Armenian convoys, lack of adequate food and medicine and
epidemics caused natural deaths. The weaknesses of a state experiencing the
final days of its dissolution cannot be considered a deliberate neglect of
duty, i.e., omission.
It seems that the British High Commissioner in Istanbul had access to the
Ottoman archives. The original text of a secret order dispatched by Talat
Paþa was found in the British archives.[24] The last article of the order
says: “...Because this order concerns the disbanding of the Committees
[terrorist bodies], it is necessary that it be implemented in a way that
would prevent the Armenian and Muslim elements from massacring each other”.
In his memorandum about this order, D. G. Osborne of the British Foreign
Office says: “...[T]he last article of the order states that one must
refrain from measures which might cause massacre” .[25] The evidences above
indicate that the relocation was not arranged with the aim of destroying the
Armenians.
Some pro-Armenian writers claim that the Ottoman archives being opened up
with a delay (due to the need for classification) was a ploy on the part of
the government to eliminate the kind of documents that would prove the
Ottoman Government’s decision to exterminate. They argue that in the
aftermath of the war the Ýtthatçýs (members of the Union and Progress Party)
collected and destroyed the documents implicating them. Yet, in the Ottoman
recording system all incoming and outgoing documents would be filed into
logs. Once a document was filed into the records, there was no way to
destroy it. Besides, the large numbers of communications sent out by the
Sublime Porte (Prime Ministry) arrived in various provincial centers
throughout the empire. A great part of these were the circulars sent from
the capital city to more than one governor office. So, even if we were to
assume that the copies kept in the capital city were destroyed, it would be
practically Impossible to cofrect and destroy the multitude of their
originals kept at various centers.
There is another piece of clear evidence indicating that the government of
the time had no intention of exterminating the Armenians. Members of the
gangs that attacked the Armenian convoys and those officials who exploited
the Armenian plight, neglected their duties or abused their powers were
court martialled and punished. Until 1918, that is, until the Mondros
Armistice, 1,397 persons received various kinds of sentences in this
context, with more than half of them being executed during the tenure of the
Union and Progress Government.[26] Obviously, the Nazi SS, SA and the
Gestapo officers, responsible for the Jewish genocide, were punished only
for not carrying out the genocide effectively, and not for the kind of
reasons mentioned above.
Acts of Genocide
Most of the acts perpetrated in the Jewish genocide committed by the Nazis
were “the killing of persons belonging in the group”, that is, the act
described in Article 2(a) of the Convention. These massacres took place in
the gassing to death of the Jews after they were transported, that is,
deported to the camps where they were kept under conditions they would not
be able to survive for long. In other words, the deportation itself was not
an act of genocide causing deaths. On the other hand, the living conditions
at the camps were acts that fit the description made in Article 2(c) of the
Convention. The Nazis committed these acts after advanced planning. They got
organized and then implemented the plan in a systematic and massive manner.
The fact that the Ottoman forces did not stage armed attacks on the Armenian
population or settlements during the relocation shows that the acts
described in Article 2 (a) and (b) were not committed. Since the relocation
lacked that basic element of ethnic cleansing, pro-Armenian writers who are
adamant to portray the relocation as genocide claim that the deportation was
used deliberately to deteriorate the group’s living conditions to ensure
physical extermination of the Armenians in an indirect manner, and that
Article 2(c) would apply to that situation. In other words, they assert that
although the Ottomans did not openly and directly exterminate the Armenians,
they adjusted the “deportation” conditions to ensure that the Armenians
would die anyway. The Armenian genocide thesis came to be based almost
entirely on this argument.
There is no evidence to prove that relocation was planned to commit genocide
In an indirect way. It is not possible to come across statements or
instructions that would indicate the presence of the Intent to destroy
through relocation, which must be done to prove genocide. On the contrary,
the entire archival material pertains to the implementation of the
resettlement decision with as little harm to the Armenians as possible.
To distort these facts, the Armenian apologists take two different tracks to
explain the situation. They report in an extremely inflated manner the
number of people who died as a result of the relocation. To that end, they
first inflate the overall population figures and then the ratio of the
casualties. Thus, they try to prove that the aim had been murder rather than
relocation. The second path they try is that of “oral history”. They want to
prove that there had been intent to destroy by gathering the personal
accounts of the events related by the people who had survived the transfer
or by their children. One could say that in almost aft of the books written
by Armenian historians, genocide is supposedly “proven” with these methods.
No one doubts that a great number of families and individuals experienced
personal tragedies during the relocation. Even population exchanges cause
similar tragedies, albeit less dramatic. However, this does not show that
the group in question was subjected to genocide. The oral history approach,
not only does not carry any legal weight, but also is problematic when it
comes to writing down history. It is a twilight zone between history and
memoirs.
As stated above, the relocation decision was taken officially after Enver
Paþa reported in writing to Talat Paþa on 2 May 1915, that the Russians had
sent across our borders on 20 April 1915, a multitude of Muslim civilians
who were in a wretched state. At more or less the same time, the Armenians
rebelled in Van, and operations began against armed Armenian groups.
Therefore, the arrest of 235 Armenians on 24 April 1915, was neither the
beginning of the relocation nor were they prominent intellectuals of the
Armenian community, for they were “komitacýs” or terrorists, to use the
contemporary jargon. In other words, the claim that the “deportation” that
started with the arrest of the Armenian intellectuals constituted genocide
is not valid.
The Ottoman Government could have opted for the second alternative suggested
by Enver Paþa. As the Russians had done to the Muslims, it could have openly
driven the Armenians towards the Russian border, which would have caused by
far the higher casualty figures than the relocation brought about. The
Balkan countries had done that to Turkish and Muslim populations much bigger
than the Armenian population. An empire that was locked in a life and death
war with the British and the French had no reason to fear the potential
reaction of the British or the French public. It had no reason to hide
behind a “deportation” process. In other words, offering the Armenians the
same treatment the Balkan Turks and Muslims had been given was not so
difficult for the Young Turks, as some seem to believe. The Ottoman
Government chose the relocation option not to get the Armenians killed
indirectly but to have them transported to a safer part of the realm, a
place less hazardous with respect to national security during the war.
Let us come to the issue of the Armenian population at that time. In the
pre-World War I Western sources, that figure varies from 1,056,000 (London,
Annual Register) to 1,555,000 (The French Yellow Book). In recent
publications, however, this figure sometimes rises up to 3 million. François
Rochebloine, the rapporteur on whose account dated 15 January 2001, the
French National Assembly’s genocide bill was based, gives the figure of 1,8
million The ‘Rochebloine report’, says in an unprecedented way, that 1,2
million Armenians died (600,000 of them where they were and another 600,000
during the deportation), and that 200,000 others fled to the Caucasus with
the Russian armies, 100,000 were supposedly abducted (?), 150,000 survived
the deportation and that another 150,000 fled before they could be deported.
This must be a feat of imagination! The casualty figures too have climbed
continually over the years. The 1918 edition of the Encyclopaedia Britannica
says that 600,000 Armenians had died. In the 1968 edition of the same
publication, this figure rose to 1,5 million.
It would be sounder, on the other hand, to take the Ottoman statistics as a
basis, and accept that the Armenian population figure was 1,295,000, simply
because the Ottomans had reasons of taxation and conscription to keep
correct statistics. This figure is, in fact, also the average of the figures
provided by two Western sources of that period as mentioned above.
To calculate the number of the dead, we should first find out the number of
the Armenians who reached Syria and Iraq, safe and sound. In its 7 December
1916 report, the Ottoman Interior Ministry states that 702,900 persons were
transferred, and specifies the overaft sum spent for the relocation.[27] The
Migrations Commission of the League of Nations gives the number of Armenians
passing from Turkey into Russia throughout World War I as somewhere in the
400,000-420,000 range.[28] Considering that the number of Armenians living
in Istanbul, Kütahya, Edirne, and Aydýn (including Ýzmir), areas where they
were not transferred, was around 200,000, one concludes that the number of
Armenians who died due to relocations, could not have been high at aft, with
due respect for the dead of the two sides.
According to the information the Istanbul Armenian Patriarchate provided to
the British prior to the Sevres negotiations, the Armenian population that
remained within the Ottoman borders following the 1920 Mondros Armistice
amounted to 625,000 people. If one adds to that figure the number of
Armenians who went to the Caucasus, the total would reach 1,045,000. Since
the pre-war Armenian population amounted to 1,3 million the number of the
dead, whatever the causes may be, turns out to be no more than 265,000
Boghos Nubar Paþa, who attended the Paris Peace Conference as the head of
the Armenian National Committee, declared that 6-700,000 Armenians migrated
to other countries and that 280,000 Armenians were living within the Turkish
borders. If one would add up these two figures and then deduct the total
from the 1,3 million, one would get 220,000-320,000 as the number of
Armenian deaths, again caused by a number of reasons. However, he himself
claimed that over one million Armenians had been killed. For that to be
true, the pre-war Armenian population should have been over 2 million. The
person in question claimed that the pre-war Armenian population had been 4,5
million. Thus, he provided the first example to the subsequent generations
of the practice of “bidding higher and higher”, as if at an auction.
Arnold J. Toynbee, who was, among others, responsible for war propaganda,
said in his “Blue Book” that 600,000 Armenians had died.[29] Later this
figure was quoted by the Encyclopaedia Britannica. On the other hand,
Toynbee said, in footnote no. 38, that the number of deportees reaching Zor,
Damascus and Aleppo, as of 5 April 1916, was 500,000. Along with the 200,000
who were not subjected to deportation and the 400,000 that went to the
Caucasus, that brings the Armenian population up to 1.7 million, which Is
higher than the British figures for the Armenian population. If, on the
other hand, the population figure is put at 1,3 million, the number of the
dead has to decline from 600,000 to 200,000. .
The figures above indicate that, depending on the various estimates about
the overall Armenian population, the Armenian losses vary between a couple
of hundred thousand to 600,000. Obviously, all the statistics that put the
losses over 300,000 happen to inflate grossly the pre-war Armenian
population figure. One should never lose sight of the fact that, despite the
deaths that occurred during the relocation, those who safely arrived at
their destination, even according to Toynbee, were around half a million.
This proves that the relocation was not genocide in disguise, for, had it
been genocide, there would be no reason for the Ottomans to let them
survive.
Considerable number of people may have died. On the other hand, it must not
be forgotten that not all (not even most) deaths occurred during the
transfers. In the wars of the time, those fleeing from the enemy armies too
were in a state of migration vulnerable to many dangers. After the Russian
army’s operation which began around Van in May 1915, the Ottoman army took
back the places it had lost. Then, a much bigger Russian attack began and
reached all the way close to Elazýð. After the 1917 October Revolution the
Russian armies retreated, and the Ottomans advanced once again. While the
armies thus advanced and retreated, both the Turks and the Armenians, who
found themselves on the path of these armies, had to move back and forth.
For example, an estimated 900,000 Turks had to be displaced from eastern
Anatolia towards the central parts of the country.[30] In a region with an
extremely rough terrain, people tried to travel in carriages, on horseback
and mostly on foot, braving cold weather and the attacks of the gangs of
brigands who did not discriminate between Muslims and Christians. In a few
days, their food would finish and the children and the elderly especially,
would be weakened by fatigue and lack of adequate water, and typhoid fever
or typhus epidemics would cause the number of deaths soar aft of a sudden.
One can even assert that an orderly relocation, which took place in the same
region under similar physical conditions, was safer and caused less health
hazards than the haphazard movements of populations mentioned above. For
example, some 5,000 Armenians left with the French who evacuated Maraþ
during the Turkish War of Independence. In the course of their 10-24
February journey, 2-3,000 of these Armenians died on account of the harsh
travelling conditions, though they did not come under any attack from
outsiders.[31]
Due to all these reasons, Boghos Nubar Paþa, referring to a German report,
said at the Paris Peace Conference that the Turks lost more people than the
Armenians did, that the entire Turkish losses during the war amounted to 2,5
million, that this occurred from ‘war, epidemics, scarcity of food and
inadequacy of drugs and hospital personnel”, that at least half of these
deaths occurred among those Turks who were “in the Armenian provinces
occupied by the Russian and Armenian armies”. This means that a minimum of
1,25 million Muslims must have perished in eastern Anatolia.
Indeed, population research done later confirmed the validity of this figure
to a great extent. The Ottoman war zone losses In World War I were in the
500,000-550,000 range, and the civilian losses amounted to some two million.
Since the war zone was eastern Anatolia, it is only natural that more than
half of the overall civilian deaths occurred in that region. Indeed,
McCarthy estimates that 1,19 million Muslim civilians perished in the region
between 1914-1921.
Finally, the Turkish and Armenian civilians, who died in clashes with one
another, called ‘mukatele’ in old Turkish, that is, mutual killings, are
Included in those casualty figures, though the definite number is not known.
According to the findings reported in the course of the Þüheda (Martyrs)
Project launched in the early 1980s, mass graves abound in eastern Anatolia.
Anthropological research determines scientifically to which group each mass
grave belongs. Although it is early to make a general assessment, one sees
that the mass graves belonging to Turks are more numerous. These grave sites
Indicate that the people’s tales of Armenians persecuting Muslims are not a
myth. The Muslims who took part in the war did not desert the army until the
very end of the armed hostilities. Soldiers of Armenian origin, on the other
hand, deserted in large numbers. They formed armed groups which attacked the
Muslim towns and villages where there would hardly be men at fighting age
able to protect them. So, these peoples could not defend themselves
effectively. This is why the Muslim deaths were more numerous than the
Armenian ones.
There is a difference between the fates of those Armenians who were
transferred from western Anatolia and those from eastern Anatolia. The
partial relocation carried out in the west caused considerably fewer deaths,
because of the availability of railways. A greater number of them returned
to their homes in the western parts after the war ended. In the east,
Armenian deaths were more numerous because of the rough terrain, lack of
railways and the fact that only small gendarmerie units that were spared
from the war front were available to protect them.
Still, the number of Armenian deaths were a lot less than claimed. The fact
that many of these deaths occurred outside the relocation process indicates
that the relocation was not an act of genocide hiding the intent to destroy.
Otherwise, we would be faced with a strange, hard-to-explain kind of
genocide in which the “genocide-committing” Turks lost much more people than
the “genocide victim” Armenians did.
In Whole or in Part
For a case to be considered genocide certain acts must have been committed
with the intent to destroy a group in whole or in part. Since members of a
group get destroyed in genocide, because they belong to that group, that is,
out of racial hatred, It is logical to say that the intent to destroy must
be directed against the whole of the group. In genocide cases survival of
some of the group members results, not because there was no intent to
destroy the group in whole, but either because those group members had
simply been Inaccessible or because the organization committing the genocide
did not have time to complete its job. That is what happened in the Jewish
genocide committed by the Nazis.
Only Gregorian Armenians were subjected to relocation. Catholic and
Protestant Armenians were left outside this process. The fact that only one
of these groups were transferred shows that the Ottomans did not feel racial
hatred against the Armenians as a whole, including the Gregorian Armenians.
Considering the fact that Islam perceives all three religions merely as
different branches of Christianity, this is all evident enough. It is common
knowledge that in the Ottoman Empire there was no religious dispute between
the Muslims and Christians, a dispute which could lead to forced
displacements. It is obvious that the desire to prevent the Gregorian
Armenians, who embraced the similar creed as the Orthodox Russians, from
engaging in ethnic cleansing with the help of the Russians of the Muslims in
the region, played an important part in the relocation decision. This
biggest group of Armenians were situated on the path of the advancing
Russian army, and the terrorists and guerillas that came out of that group
were hitting the Ottoman army from behind, cutting the logistic lines and
staging massacres at Muslim settlements. All these murderous actions
rendered the relocation imperative from the military standpoint. This shows
that the reason behind the decision was security concern of the highest
order as well as the need to protect the Muslims of the region.
Meanwhile, the Armenians living in certain cities were left outside the
resettlement process regardless of their religious creed. That occurred, for
example, in Istanbul, Edirne, Kütahya and Aydýn (including Ýzmir). Almost
all of the Armenians transferred from Ýzmit, Bursa, Kastamonu, Ankara and
Konya returned to their homes at the end of the war The majority of the
Kayseri, Harput and Diyarbakýr Armenians too returned, but most of them
apparently could not go to their villages. Those from Erzurum and Bitlis
crossed into Cilicia from northern Syria[32] and fought the Turks on the
side of the French during the Turkish War of Independence.
In those provinces, including the capital city of Istanbul, left outside the
relocation process, some 200,000 Armenians were living. This has a great
symbolic significance. In the Jewish genocide caused by racial hatred, it
would be inconceivable to have the Jews, for example, in Berlin or Munich,
not to be subjected to deportation and genocide. Even that example alone
makes it all very clear that the Ottomans did not commit genocide against
the Armenians.
Courts
After Istanbul was occupied at the end of the war, courts were set up to
investigate the Armenian incidents in line with the provisions of the Sevres
Treaty. The most famous one of these was the Nemrut Mustafa Court. In a
cable he sent to London on 24 January 1919, Admiral Calthorpe referred to
the Ottoman Prime Minister who had told him that 160-200 people had been
arrested. The court had one significant characteristics in that it had been
created by the members of the ‘Liberty and Agreement’ Government which was
the deadly enemy of the Union and Progress Party. Another characteristics
was that the defendants were denied the right to defend themselves. After a
while, realizing that the court would not be able to stage a fair trial -and
may be that it would not be able to operate effectively- the British
occupation forces transferred the 144 defendants to Malta and asked the
crown prosecutor to try them in a move that ran against the judicial rules
of the time. Due to the United States’ delay in entering the war, the
American Embassy and the consulates in Anatolia operating under it had
remained open until 1916. The British asked the U.S. Department of State to
hand over to them the evidence collected by these American missions. After
an expert from the British Embassy in Washington examined the American
archives, the following was stated in a cable sent to London by the British
Ambassador on 13 July 1921: “...There was nothing therein which could be
used as evidence against the Turks who are being detained for trial at
Malta.. .The reports in the possession of the Department do not appear in
any case to contain evidence against these Turks which would be useful even
for the purpose of corroborating information already in the possession of
His Majesty’s Government”.[33]
The British Prosecutor General of the Crown said in his report dated 29 July
1921: “. . .Up to the present no statements have been taken from witnesses
who can depose to the truth of the charges made against the prisoners. It is
indeed uncertain whether any witnesses can be found...Until more precise
information is available as to the nature of the evidence which will be
forthcoming at the trials, the Attorney General does not feel that he is in
a position to express any opinion as to the prospects of success in any of
the cases submitted for his consideration”.[34]
Under the weight of such evidence, the accusation that the crime of genocide
has been committed against the Armenians would be legally unsustainable, not
only because it would imply the implementation of a convention
retroactively, but also would amount to demanding that the people that could
not even be put on trial in the past due to lack of evidence, be judged in
the absence of fresh evidence after so many decades.
Was Armenian Relocation a Crime against Humanity?
As explained above in detail, relocation was not genocide, because it did
not “deliberately” worsen the Armenian conditions of life calculated to
bring about their destruction.[35] Nevertheless, can the losses suffered by
a relocated group be covered by the concept of crimes against humanity?
When the Armenian relocation began, the British, French and Russian
Governments issued in a joint communique on 24 May 1915, speaking about
“...crimes of Turkey against humanity and civilization..”, and declaring
that they would hold the persons concerned responsible. At that time, crimes
against humanity was merely an unbinding phrase. It had not yet been adopted
as a legal concept. For this reason, no link can be established between the
Armenian relocation and crimes against humanity just because of that
communiqué. The concept of crimes against humanity was cited for the first
time at the international level In 1946 among the Nuremberg Principles
(6/c). That crime was envisaged to be committed during war time. It covered
acts such as the persecution of any civilian society on political, racial or
religious grounds, murdering or exterminating its members or forcing them to
migrate, and the like.
The definition of genocide given In Article 2 of the Convention was created
from the concept of crimes against humanity as embodied in the Nuremberg
Principles. As a result of genocide being taken outside the category of
crimes against humanity, what was left was incorporated as the modern
concept of crime against humanity into Article 7 of the Statute of Rome of
the International Criminal Court.
Accordingly, the precondition that crimes against humanity would have to be
committed during war as provided in the Nuremberg Principles was abandoned.
The groups against whom such crimes could be committed were not listed. It
was assumed that such crimes could be committed against any civilian
population. In the introduction to Article 7, no reference was made to the
perpetration of crimes against humanity on “political, racial or religious”
grounds. The fact that the reasons for the presence of such a crime were not
listed indicate that regardless of the reasons, such perpetration would
suffice. On the other hand, in Article 7, the only condition put forth for
an act to be considered a crime against humanity was that the acts must have
been committed “as part of a wide-spread and systematic attack directed
against any civilian population with knowledge of the attack”. In other
words, the eleven acts listed in Article 7(1) from ‘a’ to ‘k’ would not
constitute a crime against humanity, if committed in isolation. Unlike the
Nuremberg Principles, “persecution of any identifiable group or collectivity
on political, racial, national, ethnic, cultural, religious, gender...or
other grounds” came to be considered not the general motive for the crime.
Accordingly, no special motive Is necessary for crimes against humanity.
Although both of them are international crimes subjected to international
adjudication, the differences between genocide and crimes against humanity
are obvious. Compared with the definition of genocide given In the
introduction to Article 2 of the Convention these differences are as
follows: Genocide can be committed against only four kinds of groups,
namely, national, racial, ethnic or religious. Acts committed against
‘political groups’ do not come under the scope of genocide. Crimes against
humanity, on the other hand, can be committed against any group. In genocide
the enumerated acts must have been committed with the intent to destroy a
given group. For the crime against humanity the presence of this intent is
not necessary. A “wide-spread and systematic attack against the group”
suffices for that. In genocide the motive for the acts Is the intent to
destroy the group ‘as a group’. This implies the existence of racial hatred.
Paragraph 1 of Article 7 of the Statute of Rome, on the other hand, does not
specify any general motive for crimes against humanity.
Under the circumstances, some commentators may attempt to use or abuse the
acts cited in Article 7, such as murder (a), extermination (b), deportation
(d) and persecution (h) In order to define the Armenian relocation as a
crime against humanity. After aft, they may assert that some people died as
a result of the relocation carried out, albeit without intent to destroy.
As can be deduced from above, the basic condition for crime against humanity
is that certain acts must have been committed against a civilian population
“as part of a wide-spread and systematic attack”. For that reason, the
characteristics of such an attack must be properly defined. If there is an
open military attack on a civilian population, no other proof would be
necessary. But the ‘attack’ in the sense of Article 7 does not necessarily
have to be of a military nature. Simultaneous and intensive (i.e., multiple
commission of acts) perpetrations against a civilian population of most of
the acts cited in Article 7 have to occur. Also stipulated is that such an
attack must have been actively developed, directed and encouraged by a state
or some other large (sub-state) organization.[36]
It may be useful to examine the 1915-16 Armenian relocation in the light of
the acts related to ‘deportation’ listed in Article 7 Paragraph (1). The
acts of killing or causing ‘deaths’ cited in Article 7 (1/a) have to be part
of a wide-spread and systematic attack and must be ‘known” by the persons
who commit the crime.
According to Article 7 (2/b), the ‘extermination’ must, again, have to be
part of a wide-spread and systematic attack directed against the group and
include intentional infliction of conditions of life, calculated to bring
about the destruction of part of a population. For example, deliberately
denying that group food or medicine would come under that heading.
‘Deportation and forced transfers’ cited in Article 7 (1/d) and 7 (2/d) also
would have to occur as part of a wide-spread and systematic attack and, at
the same time, these must be staged without grounds permitted by
International law.
‘Persecution’ cited in Article 7 (1/h), means in accordance with Article 7
(2/g) “the intentional and severe deprivation of fundamental rights contrary
to International law by reasons of the identity of the group”. Persecution
consists of ‘multiple of commission’ of acts that constitute an intensive
violation of almost aft of the fundamental rights. Those who commit that
crime would be motivated by the kind of political, racial, national, ethnic,
religious, gender or other grounds not permitted by international law.[37]
Applying the concept of crimes against humanity as enshrined in the Statute
of Rome to the 1915- 16 Armenian incidents some eight decades after these
incidents occurred would not be compatible with common sense, let alone the
law. Still, an examination of the issue from this standpoint would reveal
the following facts.
For the acts listed in Article 7 Paragraph (1) to constitute crimes against
humanity, these acts must be part of a widespread and systematic attack on
a given civil population. Yet, the Ottoman security forces did not stage any
such attack on the Armenians in order to carry out their relocation. In
other words, Armenians were not subjected to the multiple commission of the
specified acts that make up the concept of “attack” as defined by law.
The Armenians were not persecuted on account of their identity as a group on
any grounds. Until World War I when a dangerous situation arose in the
eastern front for the survival of the country, they continued to exercise
their fundamental rights like everybody else. There was no policy to deprive
them of these rights prior to their armed revolt and the relocation. During
the relocation, which necessarily constituted a derogation to a set of
rights, their fundamental rights were respected to the extent possible.
The deaths of some group members in circumstances where no wide-spread and
systematic attack was underway does not constitute either an element or a
part of such an ‘attack’. The gang attacks on the Armenians in the course of
relocation were basically and exclusively a law and order issue.
While discussing the genocide claims earlier in this article, it was stated
that the intent to destroy did not exist. The Armenians claim that the
Ottomans used the ‘deportation’ to impose on them the kind of living
conditions that would cause them to perish. The relocation was not carried
out as part of a ‘wide-spread and systematic attack’ on the Armenians.
Relocation, which does not constitute any such attack, was not the kind of
deportation as defined in Article 7 (l/d) and 7 (2/d), hence not a crime
against humanity.
In the genocide section above, it was explained that it was out of the
question that the relocation was imposed deliberately in ways that would
cause the Armenians to perish. Relocation was initiated in response to the
request Enver Paþa made as a result of the developments taking place on the
eastern front. It was aimed at eliminating the threats the armed elements
inside the Armenian population posed in collaboration with the Russian
troops against the security of the Ottoman army. This military requirement
constitutes, from the standpoint of international law, permissible grounds
for a forced population transfer.
On the other hand, the government of the time did not impose any limitations
In food and medicine supply to the Armenians during the relocation. In fact,
the Turkish-Muslim population which was also frantically migrating in the
same region fleeing the Russian and Armenian invasion forces, suffered the
loss of more people due, inter alia, to a lack of food and medicine, as was
clearly stated by Boghos Nubar Paþa, the leading Armenian at the Paris Peace
Conference.
In the light of the outcome of the Balkan Wars, the relocation also aimed at
preventing the Armenian attempts to unite with the invading. Russian armies,
to conduct an ethnic cleansing of genocidal proportions in the eastern
region which had predominantly Turkish and other Muslim populations, and
thus to set up their own state. In those days especially, such a common
action would constitute a major security concern from the standpoint of
international law. The concept of self-preservation accounts for this
situation.
Under the circumstances, the Armenian relocation was legitimate. The crimes
that occurred, much more limited than generally assumed, in the course of
relocation constituted common crimes according to criminal law. Indeed, it
is known that 1,397 people who committed such crimes were punished in an
extremely severe fashion.
For a better understanding of the subject at hand, it may be useful to take
a brief look at issues such as ethnic cleansing, relocation and population
exchange in a comparative manner. Both ethnic cleansing and relocation seem,
at first glance, to be aimed at creating a more homogeneous demographic
structure on a certain piece of land by driving a given ethnic group from
that region. However, a closer look reveals that there are serious
differences between the two with regard to motive, method and geography. The
ethnic cleansing, which is not a legal concept, began to be used in the
1980s in former Yugoslavia. In fact, It was reportedly coined by a Serbian
guerrilla. For this reason, one has to take as a basis the ethnic cleansing
in Bosnia-Herzegovina and compare that, first, to the appalling conduct
freely exhibited towards to the Turks and other Muslims during the Balkan
Wars and, then, to the Armenian relocation.
Ethnic cleansing starts with the armed forces of one side attacking the
civilian population of the other warring party. Naturally, the civilians,
who do not have the capacity to defend themselves, get killed or wounded.
Their houses and settlements are destroyed and burned down. Humanitarian
convoys bringing food and drugs are not permitted to enter the region. Men
of fighting age get arrested, imprisoned at camps with poor living
conditions or killed right away. Women get raped in a systematic and massive
manner. The cultural assets of the target group, including temples and
libraries, get burned. If they do not leave their homes, they face continual
fire or bombardment. The massacre continues. After a while, these attacks
bear fruit, and masses of people start fleeing in the direction their
attackers want them to proceed. They get driven outside the region where the
attackers intend to cleanse ethnically, that is, outside the potential
borders of the state to be founded. The members of the target group get
prevented at all costs from returning to the region. At a certain stage of
ethnic cleansing, the attacking group comes to be dominated by a certain
feeling similar to racial hatred when dealing with the target group. For
example, the Muslim Bosnians came to be called “Turkish seed”, and in this
way they were dehumanized. These persons get presented with the entire bill
for Ottoman sovereignty in the past. Rape gains a new biological meaning,
becoming an effort aimed at breeding a new generation dominated by the
aggressive race. Even after a region is rendered homogeneous from the ethnic
standpoint, civilian men get massacred in large groups and buried into mass
graves as in the case of Srebrenica. According to the law in force, the acts
constituting ethnic cleansing amount to crime against humanity, and these
acts may also be accompanied by acts of genocide that aim to destroy a group
‘as such’, as in Srebrenica. For these reasons, the prosecutor of the
International Criminal Tribunal of former Yugoslavia said in the indictment
he prepared for Karadzic and General Mladic that acts of genocide were
committed on nine counts.
The crimes inflicted in connection with the Turkish and Muslim populations
during the 1877-78 Russian-Turkish War and the 1912-13 Balkan Wars are
similar in essence to the ethnic cleansing the Serbs committed in
Bosnia-Herzegovina. The only difference is that what had happened to the
Turks and Muslims in the Balkan Wars was of a much greater magnitude. The
number of Turks and Muslims who died in those two wars amounted to some two
million, and nearly one million had been forced to emigrate to Anatolia.
The Armenian relocation too involved a forced migration. But since forcing
to migrate did not happen in the form of staging armed attacks against them,
there were almost no cases of killing, wounding, starving or keeping under
fire during the process of evacuation. Secondly, the relocation did not aim
to sent Armenians outside the borders of the country and create a
homogeneous population within. They were taken to other parts of the Ottoman
territory. Therefore, they benefited from certain facilities in cash and in
kind to adjust to the new conditions when they were resettled. One could say
that after the relocation began, due to the conditions prevailing at that
time deaths occurred anyway. This is correct. On the other hand, the
relocation led to much fewer deaths than an ethnic cleansing would have
caused. Unlike the victims of an ethnic cleansing, they could take along
with them a greater amount of personal belongings and assets. They could use
horses and carriages. Those assets they left behind were spared to a great
extent from being plundered. Their cultural assets remained largely intact.
As is obvious from the above, relocation is quite different from ethnic
cleansing in that it is much less violent.
If one tried to identify the first case of genocide in the 20th century, one
would undoubtedly arrive at the conclusion that the ethnic cleansing
committed during the 1912-13 Balkan Wars was the first such instance, not
the 1915-16 Armenian relocation. Indeed, the relocation was carried out In
order to prevent the Armenian guerrillas or terrorists, in cooperation with
the Russian army, from launching in eastern Anatolia an ethnic cleansing
similar to the one done to the Turks of the Balkans. According to the
Ottoman statistics, the overall population in the Anatolian regions where
the transfer took place, was 5,061,857 of which only 811,085 were Armenians.
In other words, Armenians accounted for 16% of the population. If they had
not been relocated and if Russia had not withdrawn its forces at the end of
1917 under the Brest-Litovsk Treaty, one can imagine the dimensions the
potential ethnic cleansing of the Turks and Muslims would gain in the
region. In fact, this ethnic cleansing had already begun.[38]
One could compare relocation to other kinds of forced migration too. During
World War II, the Americans transferred to the east the Japanese living in
the western parts of the country. That relocation was prompted by “three
minor bombing incidents and certain mysterious radio signals”. Four months
had passed since the raid on Pearl Harbor. It had been seen that Japan was
not going to cross the Pacific and try to invade the United States. Japan
had neither such intention nor capacity. It was not as If the American
Japanese were going to join hands with the Japanese army and stage armed
operations against the United States. However, the U.S. Supreme Court stated
briefly In its decision it took on the Korematsu Case on 18 December 1942,
that 112,000 men and women of Japanese origin, including children and the
elderly, had been transferred to another place on the grounds that “it was
Impossible to bring about an immediate segregation of the disloyal from the
loyal [citizens]”, with military considerations such as “preventing
espionage and sabotages”. Therefore, the relocation had not been unlawful.
It cited as an excuse that during the war all Americans had met with
hardships. Major General J. L. DeWitt’s reports had contained phrases about
the Japanese, which could be considered racist. The local groups who had
“lobbied” for the transfer of the Japanese to the east had also used racist
arguments.
After World War II, some 15 million Germans were forced to immigrate to
Germany mostly from western Poland under Article 13 of the Potsdam
Protocol.[39] With the population exchange made in the wake of the Turkish
War of Independence, 900,000 Greeks went from Turkey to Greece, and 430,000
Turks arrived in Turkey from Greece, in addition to those who had taken
refuge during the Balkan Wars. Between the years 1914-45, a series of twenty
such population exchange agreements were concluded.
Population exchanges were also forced upon the people since their approval
has never been sought. Undoubtedly, some deaths occurred, albeit fewer,
since these migrations took place in peace time In a much better organized
manner and physical conditions, with appropriate transportation. But this
does not change the fact that they were forced migrations.
In short, the Armenian relocation was not carried out with the aim of
destroying a group as a group or for any other unlawful reason. Its aim was
to transfer them to a region in the south far from the war zone of eastern
Anatolia where they cooperated with the invading Russian armies, served as
spies and guides for them, instigated rebellions, attacked the Ottoman army
and cut the Ottoman army’s supply lines, launched terrorist guerrilla
attacks on Turkish-Muslim settlements, committing massacres and ethnic
cleansing, all in order to gain their independence and establish their own
state where there was a huge Turkish and Muslim majority. This ground for
the relocation based on ‘imperative military reasons’ Is in line with
international law even today.[40]
Besides, all signs were pointing to the fact that without relocation the
Armenian forces joining with the Russian army were going to eradicate the
Turkish and Muslim majority in the region with an ethnic cleansing campaign
of genocidal proportions, as In the Balkans. In this context also, the
grounds for the relocation were clearly and definitely military within the
concept of self-preservation. It aimed at protecting the non-Armenian
majority population against destruction.
Conclusion
1. The Armenians constituted a political group since they engaged in armed
political activities, first to gain autonomy and then to found an
independent state on the Ottoman lands. For this reason, they were not one
of the four groups protected by Article 2 of the Convention.
2. Since the Ottomans did not harbour towards the Armenians an
‘anti-Armenianism’, that is, a racial hatred akin to the anti-Semitism the
Nazis displayed towards the Jews, the relocation was not carried out with a
motive which could have led to the intent to destroy them as a group. The
relocation decision was taken to prevent the military operations the
Armenians had initiated together with the invading Russian armies to
exterminate the Turks and Muslims that made up 84% of the population in the
eastern Anatolian region through an ethnic cleansing of genocidal
proportions, as had been done to the Turks during the Balkans Wars.
3. The Ottoman Government did not have the intent to destroy the Armenians,
a condition stated in Article 2 of the Convention. Not only are there no
written documents, there are no oral accounts either attesting to the
intention to destroy on the part of the administration. Aft the documents
available envisage the protection of Armenian convoys In the course of
relocation and their safe resettlement. The number of Armenian deaths, which
is grossly exaggerated, is far from proving the presence of genocide. A
significant part of the Armenian deaths resulted from reasons not related to
the relocation. The Turkish civilian deaths occurring in the same region due
to the similar reasons were more numerous than the Armenian loss of life.
Therefore, in the context of Article 2 (c) of the Genocide Convention, the
relocation was neither a covert genocide nor an indirect one.
4. The Catholic and Protestant Armenians aft over the country as well as the
Gregorian Armenians living In Istanbul, Aydýn (including Izmir), Edirne and
Kütahya, that Is, the western part of Anatolia, were not subjected to
relocation. This partial relocation did not stem from the Ottoman
administration’s weakness. The Gregorian Armenians in other areas were
transferred, because they were situated on the path of the advancing Russian
armies and, having the same religious faith as the Russians, they were
collaborating with them against the Ottoman army and the Muslim population.
This clearly shows the military rationale for the relocation.
5. Under the circumstances, the relocation, not only did not constitute
genocide according to the Convention, but also did not affect a crime
against humanity, considering the military imperative that prompted it as a
permissible ground in international law. On the other hand, the relocation
does not meet the conditions cited in Article 7 of the Statute of Rome. This
is not a case of “multiple commission of acts” as part of a “wide-spread and
systematic attack’ that constitute crimes against humanity in accordance
with Article 7 (b) of the said Statute. Moreover, the Armenians have never
been subjected to persecution on religious or other grounds.
6. Along with the "imperative military reasons”, the relocation was aimed at
foiling the efforts of the Armenians in collaboration with the invading
Russian armies to ethnically cleanse the Turks and Muslims who made up the
large majority of the population in the region, as in the case of the Balkan
Wars. The Ottomans, who were fighting on three fronts all at the same time,
could not always protect aft of the Armenians effectively with the limited
number of troops available. The gangs in the region attacked the Armenian
convoys. killing some of them and plundering their possessions for their
private purposes. The civilian Turks who were forced to migrate under
similar conditions of rough terrain, harsh climate, lack of adequate food
and medicine in the face of epidemics, lost more people than the Armenians
did. This clearly shows that the relocation was not the cause for aft
Armenian casualties.
7. And, finally, those who ordered the relocation came to have feelings of
regret due to undesirable incidents, feelings of sympathy for the Armenian
victims and a resentment towards the persons who had attacked them. The
culprits of the robbery and murder cases, which came under the ordinary
crimes category, were put on trial before the war ended, and most of them
were executed.
--------------------------------------------------------------------------------
* Retired Ambassador.
[1] William A. Shabas. Genocide in International Law, Cambridge Cambridge
University Press, 2000. p. 7.
[2] Report of the International Commission to Inquire Into the Causes and
Conduct of the Balkan Wars, Washington. Carnegie Endowment for International
Peace. 1914, section on Extermination. Emigration, Assimilation’, pp.
148-158.
[3] Shabas, op. cit., p. 255. Even this author, who classifies the Armenian
Incidents as genocide throughout his book, drawing extensively on the work
of the Armenian author Vahank N. Dadrian. does not mention those events as a
classic example of genocides.
[4] For 24.000 entries on anti-Semitic works In English. see: Robert
Singerman. Anti. Semitic Propaganda: an Annotated Bibliography and Guide.
New York, Garland, 1982.
[5] Encyclopaedia Britannica, Macropaedia 1985, Vol. 15, pp. 360-366.
[6] The Statute of Rome, Article 7, Crimes against humanity. For the
purposes of this Statute. “crimes against humanity” means any of the
fofrowing acts when committed as part of a widespread or systematic attack
directed against any civilian population, with knowledge of the attack:
Murder;
Extermination;
Enslavement;
Deportation or forcible transfer of population;
Imprisonment or other severe deprivation of physical liberty In violation of
fundamental rules of international law;
Torture;
Rape, sexual slavery, enforced prostitution, forced pregnancy...;
Persecution against any identifiable group or collectivity on political,
racial, national, ethnic, cultural, religious, gender as defined in
paragraph 3, or other grounds that are universally recognized as
impermissible under international law. In connection with any act referred
to in this paragraph or any crime within the jurisdiction of the Court;
Enforced disappearance of persons;
The crime of apartheid;
Other Inhumane acts...
[7] Estimates of the Armenian population are as follows:
According to
- Marcel Leart an Armenian (Krikor Zohrab), who took the Armenian
Patriarchate statistics as a basis of his estimates 2.560,000
- Armenian historian K. J. I3asmachian 2,380,000
- Armenian Delegation that participated in the Paris Peace conference
2,250,000
- Armenian historian Kevork Aslan 1,800.000
- French Yefrow Book 1,555,000
- Encyclopaedia Britannica 1,500,000
- Ludovlc de constenson 1,400,000
- H.F.B. Lynch 1,345,000
- Revue de Paris 1,300,000
- 1893 Ottoman statistics 1,001,465
- 1906 Ottoman statistics 1,120,748
- Ottoman statistics just before World War I 1,295,000
- Annual Register (London) 1,056,000
[8] Main Armenian revolts are as follows: 1862 and 1895 Zeytun; 20 June 1890
Erzurum; 17 July 1890 Kumkapý; 1892 Merzifon, Kayseri, Yozgat; August 1894
first Sassoon revolt; September 1895 raids on the Sublime Porte; 1895-96
Van; 1895 Trabzon, Erzincan, Bitlis, Maraþ, Erzurum, Diyarbakýr, Malatya,
Harput revolts; 26 August 1896 raid on the Ottoman Bank; 1904 second Sassoon
revolt; 21 July 1905 assasination attempt on Abdülhamld II with a bomb; 1909
Adana revolt; April 1915 Van revolt, and the like.
[9] Louise Nalbandian, Armenian Revolutionary Movement: the Development of
Armenian Political Parties through the Nineteenth century, Berkeley,
University of California Press, 1963, pp.1 10-11. The Hinchag program stated
that: “Agitation and terror were needed to ‘elevate the spirit’ of the
people...The people were also to be Incited against their enemies and were
to ‘profit’ from the retaliatory actions of these same enemies. Terror was
to be used as a method of protecting the people and winning their confidence
In the Hunchak program. The party aimed at terrorizing the Ottoman
Government, thus contributing toward lowering the prestige of that regime
and working toward Its complete disintegration. «The Hunchaks wanted to
eliminate the most dangerous of the Armenian and Turkish individuals who
were then working for the government as well as to destroy all spies and
informers. To assist them in carrying out all of these terrorist acts, the
party was to organize an exclusive branch specifically devoted to performing
acts of terrorism. «The most opportune time to institute the general
rebellion for carrying out Immediate objectives was when Turkey was engaged
in a war”,
[10] K. S. Papazian, Patriotism Perverted, Boston, Baikar Press, 1934, pp.
14-15. The author says about the Dashnag society: “The purpose of the A. R.
Federation [Dashnag] Is to achieve political and economic freedom in Turkish
Armenia by means of rebellion.. Terrorism has, from the first, been adopted
by the Dashnag committee of the Caucasus, as a policy or a method for
achieving its ends. Under the heading ‘means’ In their program adopted in
1892, we read as follows: ‘The Armenian Revolutionary Federation [Dashnagl,
in order to achieve its purpose through rebellion, organizes revolutionary
groups. Method no.8 is as follows: To wage fight, and to subject to
terrorism the government officials, the traitors... Method no. 11 is to
subject the government institutions to destruction and pillage"
[11] Jean Loris-Melikoff, La Revolution Russo et les nouvelle republiques
Transcaucasiennes, Paris, F. Alcan, 1920, p. 81. He wrote: “The truth is
that the party (Dashnag Committee) was ruled by an oligarchy, for whom the
particular interests of the party came before the interests of the people
and the nation.. .They [Dashnagsl made collections among the bourgeoisie and
the great merchants. At the end, when these means were exhausted, they
resorted to terrorism, after the teachings of the Russian revolutionaries
that the end justifies the means”.
[12] On 28 January 1895, the British Ambassador in Istanbul Currie reported
to the Foreign Office: ‘The aim of the Armenian revolutionaries is to stir
disturbances, to get the Ottomans to react to violence, and thus get the
foreign Powers to intervene”.
[13] Justine McCarthy, Death and Exile: the Ethnic Cleansing of Ottoman
Muslims. 1821-1922. Princeton. New Jersey, The Darwin Press, 1995. p. 339.
[14] Aspirations et agissements revolutionnaires des comités armeniéns avant
et apès la proclamation de la Constitution Ottomane, Istanbul, 1917, pp.
144-146.
[15] G. Tchalkouchian, Le Livre Rouge, Paris, Imp. Veradzenount, 1919, p.
12.
[16] Idem.
[17] Aram Andonian, Documents officiels concernant les massacres arméniens,
Paris, Turabian, 1920.
[18] The Statute of Rome, Article 7 and the relevant articles of the
International Criminal Tribunals for former Yugoslavia and Rwanda on crimes
against humanity.
[19] Osmanlý Belgelerinde Ermeniler: 1915-1920. Ankara, Baþbakanlýk Devlet
Arþivleri Genel Müdürlüðü, 1994. p. 8.
[20] Ibid., pp. 31-32.
[21] Ibid.. p. 11.
[22] Ibid., p. 12.
[23]Ibid., pp. 35. 43. 44, 51.
[24] Dossier no. 371. document 9518 E. 5523.
[25] 371/4241/170751. cited in: Kamuran Gürün, The Armenian File. London. K.
Rustem & Bro. and Weidenfeld & Nicolson Ltd. 1985. p. 237.
[26] IbId., p. 259. The distribution of the persons punished according to
provinces was as fallows: Sývas 648, Mamuretülaziz 223, Diyarbakýr 70,
Bitlis 25, Eskiþehir 29, Þabinkarahisar 6. Niðde 8, Izmit 33, Ankara 32.
Kayseri 69, Suriye (Syria) 27. Hüdavendigar 12, Konya 12, Urfa 189. Canik
14.
[27] Chief of General Staff KLS 361. file 1445. F. 15-22.
[28] Gürün. op. cit., p. 263.
[29] FO, Hc. 1/8008, XC/A-018055, p. 651.
[30] Mccarthy, op. cit., p. 339.
[31] Georges Boudiere Notes sur la campagne de Syrie-Cillicie: l'affaire de
Maraþ (Janvier-Fevrier 1920)”. Turcica, Paris/Strasbourg. IX/2-X (1978). p.
160.
[32] Information given by the Armenian Patriarch, FO, 371
/6556/E.2730/800/44.
[33] Cable of the British Embassy in Washington to London. dated 13 July
1921. no.722, FO, 371/6504.
[34] Gürün, op. cit., p. 236.
[35] International Law Commission, 48th Session, 6 May-26 July 1996, Draft
Code of Crimes against Peace and Security of Mankind. p. 92.
[36] PCNICC/2000/INF/3/Add. 2, p. 9.
[37] Ibid., p. 15.
[38]
| Province | Total population | Armenian population |
| Erzurum | 645,702 | 134.967 |
| Bitlis | 398.625 | 131,390 |
| Van | 430,000 | 80,798 |
| Elazýð | 578,814 | 69.718 |
| Diyarbakýr | 471,462 | 79,129 |
| Sivas | 1.086,015 | 170.433 |
| Adana | 403,539 | 97,450 |
| Trabzon | 1.047.700 | 47.200 |
[39] Shabas, op. cit., p. 195.
[40] Protocol II: Additional to the Geneva Convention of 12 August 1949,
Article 17.
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