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Thursday, 11 October 2007

This resolution is not the answer

And so it passes. A few hours ago, the Foreign Affairs Committee in the US House of Representatives voted 27 to 21 in favour of a bill that finds the Armenian massacres of 1915 to be genocide. It passed a lot narrower than many expected - the very public objections of State Secretary Condoleeza Rice and several of her predecessors will have helped with that - but pass it still did. From here, the bill moves to a full vote in the House.

The Turks are angry. President Abdullah Gül has responded already, accusing the voting members of "sacrificing large-scale issues for small domestic political games". At the vote, a Turkish parliamentary delegation expressed its sorrow; the Armenian delegation burst into applause. There have been small-scale protests outside the US Embassy in Ankara, and there are expected to be more tomorrow. Oh, and armed police guards have already appeared at Istanbul's Armenian churches.

It is a victory for America's pro-Armenian lobby. The slim Democratic majority means that it is likely, though by no means certain, that both houses of Congress will vote the bill through. President Bush has made his opposition clear, which scuppers the chance of any formal policy change for the moment. And in any case, the bill is non-binding. The United States will continue to not use the word "genocide" when referring to the events of 1915.

So why such vociferous Turkish anger? Part of it is down to the bill itself (avaliable here). Historically speaking, it is a crude effort. The first article of section two, in particular, is highly contested: "The Armenian Genocide ... (resulted) in the deportation of nearly 2,000,000 Armenians, of whom 1,500,000 men, women, and children were killed, 500,000 survivors were expelled from their homes, and which succeeded in the elimination of the over 2,500-year presence of Armenians in their historic homeland." Even those Western historians who refer to an Armenian genocide will tell you they can't speak in specific numbers. No-one knows how many people perished; politicising history won't help us find out.

But there are two other reasons for Turkey's anger, rooted far beyond the content of the American bill. First, many Turks genuinely believe they could not have carried out such an atrocious act. "I cannot believe we were able to organise ourselves into doing it," a friend once told me. "We can hardly organise the day-to-day workings of government." Second, there is the very real issue of financial compensation to the descendants of those Armenians who were deported.

This evening, the tabloid Hürriyet's website carried an American and Turkish flag under the headline "Is this the end of a hundred-year partnership?" Of course it isn't, and Turkey isn't about to kick the United States out of İncirlik Air Base (usefully close to the Iraqi border) either. The US leadership knows precisely how sensitive the Armenian issue is, and it also knows how valuable Turkey is as an ally.

But that does not mean Turkey should just stand around grumbling to anyone who will listen. There are two things it can - and should - do. Firstly, it should unilaterally open diplomatic relations with Armenia, irrespective of that country's continued occupation of Nagorno-Karabakh. Secondly, Prime Minister Recep Tayyip Erdoğan should fulfil his earlier promise and appoint a delegation of Turkish, Armenian and Western historians to investigate what exactly happened in eastern Anatolia between 1915 and 1923. As Mr Erdoğan has said before, it is a question for historians, not politicians.

The Chairman of the House committee, Tom Lantos, described today's bill as a "sobering choice" between the desire to condemn "this historic nightmare" as genocide against a possible greater risk to US troops. It will do neither; nor, it seems, will it have the happy side-effect of reigniting historical debate on the matter. It is the Turkish side that needs to take the initiative with that.

22 comments:

Nihat said...

James, why should Turkey normalize relations with Armenia? How will it help?

I am doubtful about the prospects of joint commissions of historians, too. What is there to unearth regarding facts? The fight is about interpretations, which is by definition political. No political office holder will bow to historians' say so.

Anonymous said...

About this remark: "Second, there is the very real issue of financial compensation to the descendants of those Armenians who were deported."

Would you expand on this point or show the way to other sources that discuss this issue? In particular, do you have in mind civil lawsuits adjudicated by, say, United States courts, leading to an entry of judgment by the court? Or do you have in mind a more political than judicial process? If a judicial process, then who would the defendants be? The Turkish government or certain private Turkish entities? Which law would be applied?

Forgive me if the questions sound legalistic.

Anonymous said...

We should all condem America for the genocide it comited agaist the Native american Indians

Jayson said...


What is there to unearth regarding facts?


What a bizarre statement since it is facts that would be unearthed rather than political spin. These facts may be favorable to either Turkey or Armenia, but it would certainly be better than the wild estimates thrown about.

James said...

A joint commission of historians would do what it says on the tin: that is to say, find a joint Turkish-Armenian view on the matter. It sounds impossible right now, I know, given the colossal fight over the word "genocide". But the dispute is far deeper than mere semantics - it always has been - and a joint commission would help tackle that.

Nihat, I said Turkey should begin to normalise relations with Armenia because it would demonstrate an initiative. It would show that Turkey considers the historical matter of genocide separate from the contemporary issue of diplomatic contact. And I doubt anyone living in Kars or Iğdır would complain, either.

Nihat said...

Jason, I am saying the historiography on this is very rich. One doesn't have to wait for a commission decision to make up his mind (about wild estimates thrown about or whatever). But I give you that there may still be some new facts to be brought out; to the best of my knowledge, Armenian archives are still not open for research, for example. It's just that, I'd be really surprised if something were found to change hardened parties' minds.

The rest is politics. (And I said, politics, not spin.)

James said...

Re: the first anonymous commenter

You ask very specific, interesting questions, and I must admit I wasn't thinking in nearly as much detail as I made the remark. When I referred to compensation claims, I was thinking more in terms of cases filed at an international body like the European Court of Human Rights. My point was that there is subliminal fear that, upon accepting a genocide, Turkey will be showered with claims through such channels.

Practically speaking, a Palestinian is more likely to sucessfully seek compensation from Israel for being uprooted during the war of 1967 (a more recent and far better documented event), than an Armenian is to seek compensation from Turkey. There's little point in speculating much further about this, but I have to say I really don't see why the courts of the United States - or any other third country - should be involved. It's not even clear whether Turkey should be involved: the latest bill that's causing all this controvesy is very careful to refer to crimes perpetrated by the Ottoman Empire (not the Republic of Turkey), and only until 1923 (the year the republic was founded).

Nihat said...

James, okay, I got you. I am still not sure if such a show of unilateral initiative is worthwhile before Armenia makes (or agrees to make) some corrective moves regarding the situation with Azeris.

As for "finding a joint Turkish-Armenian view on the matter," that's certainly a better way of putting it.

Nihat said...

The year 1923 is precisely a non-starter for Turkey. Remember the 1919-23 Turkish independence struggle, and a war with Armenia in that same period. Turkish Republic was formally founded in 1923, but the fight for it started in 1919.

James said...

Absolutely correct. It's not as if the Turkish republic suddenly came into being in 1923. It only serves to show again that the current House of Representatives bill is about symoblism, little more.

Anonymous said...

There are already cases involving the descendants of the genocide and life insurance companies which had insured Armenian citizens of the Ottoman Empire. A settlement was recently reached in the USA and Europe with Axa and with New York Life for several million dollars. An ongoing case involves Deutsche Bank and others. Mark Geragos is one of the attorneys.
http://www.armenianinsurancesettlementfund.com/English%20letter%20to%20claimants.pdf

The question of whether the Republic of Turkey is liable for property and other damages depends on whether it is considered a successor state to the Ottoman Empire.


I agree with Nihat that a joint commission is a non-starter. My historians will just disagree with your historians. In any event how do you have a commission if you do not have diplomatic relations and if it is against the law to discuss the issue (i.e. art. 301 of the Turkish penal code).

R.

Anonymous said...

This is the first anonymous commenter again. The commenter above's mention of a settled lawsuit by Armenians against an American life insurance company is interesting. I was thinking more, however, of the lawsuits that have been brought in U.S. courts against German, Austrian and other corporations in connection with the Holocaust. These lawsuits adjudicated in federal courts in the U.S. have had a lot of success. It looks like a decent summary of the history of these lawsuits is available in Part II of the Bazyler and Fitzgerald article available here: http://www.brooklaw.edu/students/journals/bjil/bjil28iii.php. (But I've only skimmed it myself.) See also http://www.vaticanbankclaims.com/home.html.

Supposing there were similar lawsuits brought in U.S. courts by Armenians in connection with World War I killings, I'm wondering whether a judicial finding that the killings amounted to genocide may be crucial in such lawsuits so that the court could then apply the notorious Alien Tort Claims Act. See http://hrw.org/campaigns/atca/intro.htm. But maybe someone more knowledgeable than me could speak on that.

As for reparations from the Republic of Turkey (as opposed to damages awards from private entities), the above commenter is correct that one hurdle would be the necessity of finding that Turkey is a successor state to the Ottoman Empire. In fact, I believe that at its founding the Republic of Turkey did assume the debts of the Ottoman Empire. And I think it concedes itself to be a successor state for international law purposes. But I'm not sure. Someone correct me if I'm wrong on that.

Regardless, there would be other hurdles that would have to be overcome as well. So far as the use of U.S. courts goes, there would be the issue of sovereign immunity were the Republic itself named as a defendant. And plenty of other legal hurdles. Perhaps a suit commenced by the Armenian state against the Turkish state in the International Court of Justice (the U.N.'s court) would hold more promise for Armenian claimants. Is something like that conceivable? Again, maybe someone who knows more than me could talk.

For the record, I think the joint commission of historians idea is a good idea. I agree with James: they should just go ahead and do it. If, once the commission's work is underway, some prosecutor starts making Art. 301 threats, then that will be the final nail in the coffin of Art. 301. All for the good.

Final thought: my sense is that Turkish fears have historically been sparked by thoughts of claims to Turkish land. "Everybody wants a piece of Turkey for their own homeland," is the thought. I think that this may still be the real object of Turkish concern.

K.

James said...

"K" - thank you for that. The precedent in Holocaust claims that you refer is most interesting. I think it's fair to say that the mere thought of compensation claims is intimidating enough to Turkey, regardless of what shape they do take.

But the question of who to hold responsible is an interesting one: my understanding of the matter is that Turkey is a successor state in spirit, but that much of the debt and capitulations were abolished. No World War I reparations were sought, either. The Treaty of Lausanne is the place to look for that.

Here's another problem: no-one in Turkey had a surname until 1934. What's to separate one Mehmet Bey from another? And then there's the whole question of holding someone responsible for his great-great-grandfather's doings.

There certainly have been plenty of territorial claims - Soviet Armenia was particularly vocal about after World War II, about there was a whole terrorist organisation that fought for them. But I don't think even Armenians think they're particularly viable today.

Anonymous said...

The International Court of Justice (ICJ) in the Hague (www.icj-cij.org)(the ICJ) started operating in 1946 and has a dual role: 1) to settle legal disputes submitted to it by States, and 2) to give advisory opinions on legal questions submitted to it by duly authorized international organs and agencies. Individuals may not apply to the Court and in the case of countries both states must agree to be bound by the Court's jurisdiction.

This case involves the extermination of a group of its own citizens by the Ottoman Empire, a state which no longer exists. Of course there was no Armenian state at the time. So it would be difficult to see the ICJ taking the case.

There is also the International Criminal Court (www.icc-cpi.int) which is separate from the ICJ. Unfortunately its jurisdiction only extends to crimes committed after July 1, 2002.

There have been some quasi-legal proceedings surrounding the genocide:

The Permanent People’s Tribunal, at a session in Paris in 1984, decided that there is no doubt regarding the reality of the physical acts constituting the genocide. The facts are clearly proven by the full and unequivocal evidence submitted to the Tribunal that the Young Turk government was guilty of this crime not subject to statutory limitations and that 'The Armenian genocide is also an 'international crime' for which the Turkish state must assume full responsibility, without using the pretext of any discontinuity in the existence of the state to elude that responsibility…”. Turkey refused to participate and of course refused the verdict.

Then in 2002 during the proceedings of the Turkish Armenian Reconciliation Commission (TARC) at the instigation of one of the Turkish members, former ambassador Gunduz Aktan, an independent legal opinion was sought from the International Center for Transitional Justice seeking an objective and independent legal analysis regarding the applicability of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide to the events in question. The ICTL opinion was essentially that the Genocide Convention could not apply retroactively (i.e. to events prior to 1951) but that the events in question would fall within the definition of genocide as: ”.. viewed collectively, can thus be said to include all of the elements of the crime of genocide as defined in the Convention, and legal scholars as well as historians, politicians, journalists and other people would be justified in continuing to so describe them”. http://www.genocidewatch.org/TurkeyArmeniaREPORTOFTHETARC.htm

R

Anonymous said...

To follow up on my previous post
here is a link to an interesting article published in the Journal of Transnational Law & Policy http://www.law.fsu.edu/journals/transnational/vol11_2/shamsey.pdf in which an American jurist argues that perhaps a hypothetical case concerning the Armenian Genocide could be submitted to the International Criminal Court (as mentioned previously the ICC only applies to crimes occurring after July 1, 2002) and the ICC could then make a symbolic decision.

The fact that the Republic of Turkey is not responsible as a state for crimes committed by the Young Turks does not exclude individuals and institutions from seeking redress either in the form of restitution or compensation.

This is separate from the official policy of the Republic of Armenia which is that it has no territorial claims on Turkey.

R

Anonymous said...

James - about whom to name as defendants in a lawsuit, I agree that it wouldn't make sense to name individual persons, but I think the question is whether there are any Turkish banks or other business entities in existence today that also existed in 1915. If they knowingly profited from the confiscation of Armenian property, or were in any other way complicit in the deportations, then a finding that the killings constituted genocide puts the Alien Tort Claims Act into the hands of plaintiffs. Any of these business entities (Turkish or not-Turkish) that do sufficient business in the United States so that a U.S. court could claim personal jurisdiction over them might be named as defendants in an Alien Tort Claims Act case. Just like the defendants in the Holocaust litigation of the 1990s. Or so I'm thinking . . . . Even if that is a legal possibility, are there any such business entities in Turkey today that were operating 90 years ago?

R - Thanks for the additional info. I'm not sure what the Permanent People's Tribunal is. After five minutes of Googling I gave up. The International Center of Transitional Justice looks like a pretty impressive organization based on five minutes of Googling that. (Funding from the Ford Foundation and the MacArthur Foundation is a pretty good imprimatur.) I found the memorandum that the International Center wrote for TARC here:

http://www.armenian-genocide.org/files/ICTJ_Memorandum.pdf

It looks very good.

Reading this memorandum brings back to my mind a basic question that I've always had about the "official" definition of genocide. I've never thought much about it, however, and have never really looked into these things. But this memorandum once again leaves me wondering: how is it that the "official" definition of genocide, provided in the Genocide Convention and elsewhere, doesn't subsume within it a huge number of events that would never actually be referred to as genocide? Basically, any race riot that leads to even just one murder in which the victim was singled out on the basis of his race or ethnicity makes for an instance of genocide. Was the murder of Yankel Rosenbaum during the Crown Heights riots an act of genocide? See http://en.wikipedia.org/wiki/Crown_Heights_Riot. Was the death of Le Chenadec during the 2005 Paris riots an act of genocide? See http://en.wikipedia.org/wiki/2005_civil_unrest_in_France.
If the attempted murders of the 2005 Sydney race riots had succeeded, would that have been genocide? See http://en.wikipedia.org/wiki/2005_Sydney_Race_Riots.
And did we see instances of genocide during the 1992 Los Angeles riots? See http://en.wikipedia.org/wiki/1992_Los_Angeles_riots.
I'm perplexed, because if you walk through the elements of genocide as provided in the Genocide Convention and as discussed in the International Center for Transitional Justice's memorandum, it seems like the answer is a clearcut "Yes." All of these are instances of genocide. What am I missing here?

Turning back to the subject of the Republic of Turkey as a successor state to the Ottoman Empire, I've now got some more questions about that too. Looking at the discussion of assumption of Ottoman debts in the Treaty of Lausanne, that suggests to me that in fact Turkey is clearly a successor state since the extinguishing of debts required the consent of parties to the Treaty. But now I've become confused by having looked at the main, authoritative summary of principles of international law for U.S. jurists, the Restatement (Third) of the Foreign Relations Law of the United States (unfortunately not available online). This provides rules for the assumption of a predecessor state's property and contractual liability by a successor state (Section 209 of the Restatement) and for the assumption of a predecessor state's treaty obligations by a successor state (Section 210 of the Restatement), but doesn't say anything about a successor state's liability for crimes perpetrated by the predecessor state. As James mentions, the Treaty of Lausanne doesn't seem to impose any relevant obligation on Turkey. So maybe the liability of the state itself is a total non-issue.

I have a lot of questions and no answers. But I need to stop procrastinating and get back to work.

K.

James said...

R - regarding territorial claims, I'm not sure that's strictly true. Soviet Armenia certainly had claims on parts of the historical homeland in eastern Anatolia, and I know for a fact that the present-day Republic of Armenia is making a point of refusing to recognise its border with Turkey. The argument, as I understand it, is that the 1921 Treaty of Kars that define it was negotiated with the Russians, not the Armenians.

K - I think, from a historical point of view, there's very little to argue that the events of 1915 weren't genocide. The problem isn't about the etmology of the word, it's about interpretation. It's a collassal charge for any country to have to digest, and it comes at a time when any such charges against the nation are met with fierce nationalism. But that's just my opinion.

My over-arching point to the two of you is that this issue does not yet have a sound historical foundation upon which to base any kind of legal challenge. That is why I push for the joint commission. It's been tabled by Turkey's prime minister; as Nihat rightly says, Armenia hasn't even opened up its archives.

Anonymous said...

Agreed that much better inquiry into the historical facts is necessary. But I disagree that questions of the legal definition of "genocide" can wait until after the questions of fact are more completely answered. The word "genocide" seems to have become a real troublemaker: It suggests both a moral judgment of immense magnitude and a legal judgment with potentially very significant consequences, and yet the word is unbelievably slippery when it comes to defining just what sets of facts would fall within the meaning of the word. My question, above, as to whether the various race riots that I referenced present us with instances of genocide was a question as to just how slippery the meaning of this word may be. If the meaning of the word has really become so watered down (in that it encompasses even all the race riot examples I listed in my post above), then the super-heavy moral and legal significance that continues to attach to the word should be reconsidered.

I realize this is a touchy subject and I hope I am not causing offense to any readers. At this point, I'm asking an abstract question about the meaning of the word "genocide." Not making any suggestion as to the facts surrounding World War I.

I'm talking about the factual content of the word, not its moral connotation. Like the factual content of "murder" is: Person A, with the intent to kill Person B, kills Person B. The word "murder" has a moral and legal connotation too, separate from the factual content of the word. The factual content is distinguishable from the moral connotation.

K.

Anonymous said...

James,

Soviet Armenia did not exist as a separate entity and so could not make demands on Turkey. The current position of the Armenian government is that it accepts the border as it now stands. If you have other evidence I would be interested in it.

Moreover, the fact that two countries disagree over a border need not mean there are no diplomatic or trade relations. There are many instances of countries with border disputes who still get a long quite nicely. Greece has relations with Turkey despite the Turkish occupation of Cyprus and disputes over several Agean islands. Syria until recently contested the Hatay region of Turkey yet the two countries continued to have diplomatic relations.

This is why the Turkish proposal of a joint commission is suspect. The Turkish proposal requires that Armenians suspend all talk about genocide during the commission and that the historians be appointed by the governments. Scholarship should operate independent of government.

Nor have the Turks offered to normalize relations first.

James, research and scholarship are important but there is already a lot of research on the subject and the large majority of scholars, including several Turks, consider this to be a genocide. Taner Akcam, a Turkish academic, has done extensive work in the Ottoman archives and some of his research is detailed in his recent book 'A Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility'.

Unfortunately Akcam is now being prosecuted under article 301 of the Turkish penal code for 'insulting turkishness'. So we must be skeptical about Turkish offers to objectively study the subject.

As far as I know the archives in Armenia are open. Perhaps you have additional information on this.

In Turkey the Ottoman archives have been opened but my understanding is that the Imperial Army archives are not yet accessible. Akcam and others relate that there is evidence of the archives being tampered with. There is also much useful information and evidence in the archives of the U.S.A., Germany, Russia, etc.

R

Anonymous said...

K,

I wanted to get back to you on a couple of points.

First, the Permanent Peoples' Tribunal: the Tribunal's proceedings were recorded in a book called 'A Crime of Silence, The Armenian Genocide: Permanent Peoples' Tribunal'. The book is currently out of print (I have a copy) but you can read the verdict here:

http://zoryaninstitute.org/Table_Of_Contents/genocide_docs_ppt_verdict.htm

Secondly, concerning the definition of genocide, it seems clear that numbers matter i.e. the killing of one person or a few people in a riot would not be sufficient. Also the number of people killed as a percentage of the total group matters. For example, 200,000 Armenians were killed under Sultan Abdul Hamid in the 1890s. This would have been about 10% of the Armenian population of the Ottoman Empire at the time but it was not a genocide.

Of course the central issue in determining whether or not an act of genocide was committed is intentionality. Did the party committing the act intend to eliminate the given group?

The official Turkish position here is that Armenians were deported from Eastern Anatolia because they were a threat to the Empire and their deaths were caused by disease, criminality, ineptitude, and the general chaos of the time.

The weakness with this position is that:
1)There was no need to deport the entire Armenian population including women and children, to protect the Empire;
2) Why was their property immediately confiscated?
2) Why were Armenians deported far from the eastern front?
3) If you deport an entire civilian population into a desert under those conditions you have to know you are sending them to their deaths.

K, I am interested in your reference to Holocaust related claims in U.S. courts. Do you have any information which might be relevant to the Armenian Genocide?

R

Bad Tyrpist said...

I want to wade in with a couple of observations on what the various Anonymouses here have been saying, if I may.

One anonymous says:

"Like the factual content of "murder" is: Person A, with the intent to kill Person B, kills Person B. The word "murder" has a moral and legal connotation too, separate from the factual content of the word. The factual content is distinguishable from the moral connotation."

Your factual content also works as a definition of "execution". Perhaps the moral issue IS the defining issue here.

Move on. Next.

I think it is pushing it to read the Genocide convention as implying that an attack on one person - in effect an ethnic hate crime - can be construed as genocide. The convention does say "in whole or in part", but does clearly say that we are talking about the destruction of a people - communities, not individuals.

Move on. Next.

Turkey is a politically complex country which, since the last election, has suddenly become even more complex. It is less true than ever to look on Turkey as some long conga-line all dancing behind the başbuğ of the day. There are people in Turkey who are desperately ashamed of the genocide. There are those who deny it. There are those who want rapprochment, and to cleanse their souls. There are those who believe that law 301 is everything.

There are those who genuinely believe that any independent historical tribunal would vindicate Turkey. There are also those who realise that the issue must be settled, so let's do it now.

Move on. Next.

Anyway, I read somewhere recently - it might have been in Murat Belge's book on Nationalism - that the documents showing who lost property and who it went to still exist and could easily be the basis for a suit.

Anonymous said...

I've come across an interesting discussion of "genocide" as distinct from "mass murder":

http://volokh.com/posts/1192579509.shtml

K.