Yerevan, 20 April 2005

 Human Rights – International Law – and the Armenian Genocide

 by  Alfred de Zayas, JD, PhD

 The paramount right of the human being is the right to life.  Long before its codification in the Universal Declaration of Human Rights, in the Convention on the Prevention and Punishment of the Crime of Genocide, and in the International Covenant on Civil and Political Rights, the right to life was already recognized as the source and object of human rights – based on reason and natural law.

Another fundamental human right is the right to one’s homeland[1], a collective and individual right, which is a condition sine qua non for the exercise of many other human rights[2].  The right to one’s homeland is logically prior to the right of self-determination, logically more essential than the right to democratic participation.  Indeed, these other important rights can only be exercised by individuals and groups if they are not subjected to expulsion, massacred or otherwise denied their right to live on their native soil.  The phenomenon of what is currently termed “ethnic cleansing” is a drastic denial of the right to the homeland.  Slobodan Milosevic is standing trial in The Hague before the International Criminal Tribunal for the Former Yugoslavia, precisely because of violating the right to the homeland through practices of ethnic cleansing.

Throughout history the right to life and the right to the homeland have been breached by countless aggressions[3], wars of conquest and subjugation, state terrorism, by the demonization of adversaries, discrimination of ethnic and religious minorities, and ultimately by their extermination.

Yet another human right is the right to truth[4].  Indispensable in the search for truth and justice is the right to seek and impart information.  This right, proclaimed in article 19 of the Universal Declaration of Human Rights and in article 19 of the International Covenant on Civil and Political Right, is under attack in many parts of the world.  For instance, pursuant to article 305 of its new Penal Code, Turkey criminalizes the expression of the Armenian genocide.  Official negationism of this kind is clearly incompatible with the right to seek and impart information.

Another important human right is the right to one’s identity and culture. Here lies a present and urgent challenge for the United Nations, in particular for UNESCO, in its efforts to protect and preserve the cultural heritage of all peoples, including the Armenians.  Surely the Armenian churches and monasteries in the historic Armenian lands in Turkey constitute part of the common heritage of mankind.

Alas, because of the political misuse and abuse of history, many victims are still being denied recognition.  This morning I would like to speak about some of the “unsung victims” of history.

As a lawyer, I would like to build on the premise of an overarching principle of human rights – namely, the principle of equality.  Since all human beings share the same human dignity, there cannot be “politically correct victims” and those whom one can safely ignore.  All victims of injustice, including the survivors of the Armenian genocide and their descendants, are entitled to recognition of their status as victims.  They deserve our respect and compassion.

World history knows of many massacres.  Even more have gone untold.  The victims remain unpitied and unknown.  In the documentary and book Manufacturing Consent, Noam Chomsky reminds us of many victims of gross violations of human rights that our political leaders have chosen to hide or minimize.  Seldom do we hear anything about the massacres of the Ibos of Biafra by the Nigerian government, or the atrocities carried out by America’s ally Indonesia on the hapless population of East Timor[5], now Timor Leste.

It is time to take a new look at history, to place events in perspective, to remind ourselves that every single human life is important, that injustice breeds injustice. Whereas some victims are instrumentalized for political purposes, others are ignored or negated, also for political reasons.

As members of the human family we must keep in mind article 1 of the Universal Declaration of Human Rights:

“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”

Who are the “unsung victims”?

Among the many forgotten victims in the history of mankind, let us remember the indigenous populations of the Western Hemisphere[6], the men and women that the European colonizers met when they supposedly “discovered” the new continent.  Recent estimates place the numbers of indigenous peoples at around 10 million North of the Rio Grande (the territory of today’s United States and Canada)[7] and maybe as many as 70 million in Central and South America.

The European colonizers employed various forms of violence on the indigenous populations, resulting in the destruction of perhaps 50 percent of the first nations in Central and South America and 95 percent of the native populations of North America.  Many succumbed to European diseases such as smallpox and typhus, but many others perished as a direct result of enslavement, forced transfers to arid territory, to the deliberate destruction of their corps and the nearly total slaughter of their principal food supply -- the buffalo.  They also became the victims of the deliberate devastation of their settlements, and fell to genocidal massacres, including those of St. Francis (1759), Horseshoe Bend (1814), Bad Axe (1823), Blue Water (1854), Sand Creek (1864), Marias River (1870), Camp Robinson (1878) and Wounded Knee (1890), to name only the worst slaughters in what is today the United States of America.

The Spanish Conquistadores also committed genocidal crimes on the indigenous peoples of Central and South America, including Hispaniola, Mexico and Peru.  We have evidence of this genocide from Spanish contemporary chronicles and from the writings of the Dominican priest and later bishop Bartolomé de las Casas (1484-1566)[8].  And yet, we scarcely talk about this genocide, as if the extinction of many indigenous tribes had been a natural disaster.  Let us also not forget the aboriginal populations of Australia, Tasmania, New Zealand, the millions of victims of the slave trade, and the degradation of the human being to what was termed “chattel property”.

Some may object to this line of reasoning and explain that these events happened very long ago.  Nevertheless, the history of genocide has continued in the twentieth century.  Thus the Christian minorities in the Ottoman Empire, who had suffered persecution and massacres in the nineteenth century,[9] were subjected to genocide under the cover of the First World War, culminating in the murder of some 1.5 million Armenians[10], and the ethnic cleansing of the Greek and Assyrian communities of Anatolia.   Already in 1915 the Turkish massacres against the Armenians were described by the British and French Governments as “crimes against humanity”  Article 230 of the Treaty of Sèvres stipulated that the Turkish officials responsible for the massacres would be handed over to the Allies to be tried by an international criminal tribunal.  Article 144 stipulated that the confiscated property should be returned.  Unfortunately, although Turkey signed the Treaty of Sèvres, it never ratified it.  And the new Kemalist government negotiated a different Peace Agrteement with the Allies, the Treaty of Lausanne of 1923, which did not provide for punishment of war criminals or restitution of stolen property.

We also remember the millions of Ukrainian victims of Stalin’s imposed famine, the millions of human beings internally displaced, and the millions interned in the Gulags.  Mass-murder, of course, may have many motives.  Ethnic hatred is one.  Religious fanaticism is another.  Maybe Stalin’s murders do not qualify strictu sensu as genocide, since they were not racially-motivated, but were aimed at the liquidation of the members of a social class or of a political group.  Similarly, the Khmer Rouge’s mass murders in Cambodia targeted a social class.  All of the above qualify as crimes against humanity within the meaning of article 6c) of the Nuremberg indictment and article 7 of the Rome Statute of the International Criminal Court.

Hitherto the concept of genocide has been mostly associated with the Holocaust, with the Nazi mass-murder of those whom they considered as Untermenschen.  Millions of Jews and gypsies were exterminated.  Historians have devoted much solid scholarship to investigating these genocides.  But there are other victims of the Second World War and its aftermath that remain unrecognised, other stories that have hardly been told.  We think of the millions of rapes committed by the Red Army on all women in the territories they occupied.  We think of the fifteen million Germans from East Prussia, Pomerania, Silesia, East Brandenburg, Sudetenland – who were expelled from their 700-year old homelands – two million of whom did not survive this form of ethnic cleansing[11].  A deplorable anomaly here is that at the same time that these expulsions and murders against German civilians were taking place, with the knowledge and complicity of the victorious Powers, France, the Soviet Union, the United Kingdom and the United States were sitting in judgment at Nuremberg, where they had indicted the Nazis specifically for the crime of expulsion of Poles and other nationalities from their homelands, acts which the Nuremberg judges held to be war crimes under Article 6b of the indictment and crimes against humanity under article 6c[12].  It is difficult to find a stronger illustration of double-standards. 

We should also remember the one hundred and eighty thousand Cypriots expelled by Turkey from Northern Cyprus in 1974, following the illegal occupation of Northern Cyprus, an occupation that continues to this day, notwithstanding the relevant Resolutions of the United Nations Security Council and of the General Assembly, and notwithstanding judgments of the European Court of Human Rights condemning the occupation and the violation of the human rights of the Greek Cypriots, brutally expelled in 1974 and to this day denied compensation and the right to return to their homeland.[13]

Let us also remember the forgotten massacres of the indigenous populations of Acheh Sumatra, who suffered untold oppression and decimation under the Dutch colonizers and then under successive Indonesian governments, and of Timor Leste, who were similarly decimated under the Portuguese colonizers and subsequently under the Indonesian authorities after 1975. 

Implementation of international law and human rights norms

In principle, no States is above international law. There is no legal black hole.  De jure and de facto, many of these instances of expulsion, ethnic cleansing and outright massacres constituted genocide.  The sad reality is that many of the perpetrators of these crimes have remained unpunished to this day, and that most of the victims have not received recognition, rehabilitation or compensation.  Many victims see themselves denied even the recognition of their status as victims.

True, mass murder is a crime and has always been a crime under domestic law and under the law of nations, a crime that gives rise to State responsibility and to personal criminal liability.  No statutes of limitations apply with respect to genocide and crimes against humanity.  The perpetrator State or any successor State is under an obligation to prosecute and punish the officials responsible for the crime, to grant restitution and make other forms of reparation to the victims and to their descendants.

The Genocide Convention of 1948 and other United Nations Conventions strengthen the claims of genocide victims, including the Greeks, Assyrians and Armenians of Asia Minor, the indigenous peoples of North and South America, and the many other “unsung victims” mentioned above.  The Convention did not create their rights, since the Convention was only declarative -- not constitutive of the pre-existing law of nations.  The Convention, however, sets up a mechanism that can be useful in the context of the Armenian Genocide.

Pursuant to article IX of the Convention, the International Court of Justice in the Hague has jurisdiction over any dispute relating to the interpretation, application or fulfilment of the Convention, including those relating to the responsibility of a State for genocide.  Any State party to the Convention, including Armenia, could submit a case under article IX to the International Court of Justice.  Moreover, the UN Security Council and the General Assembly both have the competence to request the ICJ to deliver an advisory opinion concerning the legal consequences today of the Armenian genocide.

The discussion about the non-retroactivity of the Genocide Convention is, of course, a diversionary tactic, a red herring, as we lawyers like to call it.  Remarkably enough, this red herring has been partly launched and financed by my own country, the United States of America, on behalf of its NATO partner Turkey.  The Turkish-Armenian-Reconciliation-Commission appears to participate in this distraction manoeuvre.

Of course, everyone in this Conference wants reconciliation.  But all reconciliation must be based on truth, and on the principle that all members of the human family have equal dignity and equal rights.  Forgiveness is a cardinal principle of Christianity.  Forgiveness should be given when asked, but successive Turkish governments have not shown any readiness to ask for forgiveness.  The principle is not one of tabula rasa, but one of recognition of one’s faults, contrition and repentance.  Only when the perpetrator is prepared to recognize the crime and to do atonement, at least in the form of restitution of the Armenian cultural heritage, only then can forgiveness be forthcoming.

In the case of the Armenian genocide, we can conclude that the international legal norms are reasonably clear.  So too are the facts[14].  What is missing is the implementation of the norms, the recognition of the crime, and the granting of justice to the victims and to their descendants.  Norms have never been identical with enforcement.  Conversely, the absence of enforcement does not call into question the existence of the norms.  Law is not mathematics.  If it were, the Armenian people would have received satisfaction and closure generations ago.  Alas, as so frequently in history, where might is taken for right, great crimes go unpunished. 

European, American and Australian statesmen have hitherto failed to face up to the historical responsibility of their respective countries for crimes of genocide committed in the course of the colonization and exploitation of North America, South America, Australia, Southeast Asia, Africa.  Nor have they accepted responsibility for the crimes associated with the slave trade.  This reluctance became abundantly evident at the World Conference Against Racism held in Durban, South Africa in September 2001.

Does this mean that colonialism and slavery were not crimes against humanity, just because no one was punished?  Does the fact that Pol Pot and his Khmer Rouge were never punished for the mass murders in Cambodia mean that what occurred there was not a crime against humanity?  Other great criminals of our day, including Idi Amin Dada of Uganda, have also died in impunity.

All Turkish officials who participated in the Armenian genocide are now dead.  Thus, the punishment of the murderers can no longer be effected.  What is possible and necessary today is to settle the historical record, to seek the judgment of the Court of world public opinion. In the name of Human Rights, civil society should propose the convening of a Russell-type tribunal in order to put the Armenian genocide on trial before the eyes of the world. 

The 1984 People’s Tribunal in Paris, which devoted its session to the Armenian genocide[15], was a good start.  A new People’s Tribunal with international participation could and should be organized.

It is never too late.  Indeed, in July 1998 indigenous groups in Honduras opened a historic trial against Christopher Columbus.  He was charged with responsibility for the crimes of the Conquistadores – genocide, slavery, rape and plundering.  Similar tribunals were also set up in Bolivia, Guatemala and even in Texas.

The results of such people’s tribunals must be given greater visibility.  I am persuaded that it is possible to take the Armenians out of the category of the “unsung victims” and to ensure that the Armenian genocide is taught in every high school and in every university – at least in the United States and in Europe..

Ubi jus ibi remedium

According to the Latin pinciple „ubi jus, ibi remedium“, where there is a norm there is also a remedy.  Truth is a remedy.  The right to return to one’s homeland is a remedy.  Indeed, for as long as the right to return cannot be realized by the victims and survivors of genocide and ethnic cleansing, there is a continuation of the crime.  Still another remedy would be that of restitution and compensation. It is and remains intolerable that a State that committed genocide should enjoy to this day the fruits of its crime.  Here lies a continuation of the genocide.

Whereas Germany has restituted the stolen Jewish property and paid billions of dollars in compensation to the surviving victims of the Holocaust and to their descendants, Turkey continues to occupy the historical Armenian lands, its churches and monasteries, its houses and cemeteries.  Imagine for a moment that the Germans still occupied the Jewish synagogues in Germany, having transformed them into churches, barns or warehouses, imagine that the Germans continued to hold in their possession the vast amounts of Jewish property that the Nazis had confiscated.  Everyone would consider such a situation outrageous -- and rightly so.

Somehow the world seems to experience no outrage, although it knows that Turkey continues to occupy the historic Armenian lands, its churches and monasteries, when it continues to enjoy the fruits of the first genocide in the 20^th century, when it persists in denying the genocide and in manipulating history.

In the name of human rights and international law, we should join hands to change this situation.

I thank you for your kind attention.

Alfred de Zayas, JD, PhD
retired senior human rights officer, Office of the UN High Commissioner for Human Rights
former Secretary of the UN Human Rights Committee, former chief of Petitions at OHCHR
Secretary-General, PEN International, Centre Suisse romande
www.alfreddezayas.com