Genocide Against
The Armenians 1915-1923

The

And The Relevanceof The 1948

Genocide Convention

Alfred de Zayas J.D., Dr. phil.
Published by

Haigazian University

An earlier version of this legal opinion was published by the European
Armenian Federation for Justice and Democracy in Brussels in April 2005 incommemoration of the 90th anniversary of the beginning of the Armenian
Genocide. The legal opinion was distributed to all participants at theInternational Conference on Human Rights and Genocide “Ultimate Crime,
Ultimate Challenge”, held in Yerevan on 20-21 April 2005.
http://www.armeniaforeignministry.com/conference/speakers.html
This second revised edition, which coincides with the 95th commemorationof the Armenian Genocide, contains additional information and updates,reflecting primarily normative developments in the United Nations.

Published by
Haigazian University
Mexique Street, Kantari
P.O. Box: 11-1748
Riad el Solh 1107 2090
Beirut, Lebanon
www.haigazian.edu.lb

February 2010

ISBN-13: 978-9953-475-15-8

PREFACE

International Commission of Jurists - Geneva

The night of 24 April 1915 would mark the beginning of a
tragic fate for the Armenian people. On this night, hundreds of Armenian political and intellectual leaders werearrested in Istanbul and assassinated, as the first stage ofthe first genocide of the twentieth century. Between 1915
and 1923, hundreds of thousands of Armenians would
be systematically exterminated or deported; Armenian
towns and villages would be erased from Ottoman geography; and every symbol of Armenian culture would betargeted for destruction. Most of the survivors would dieof hunger or exhaustion during forced marches to exile.
As historian Nelida Boulgourdjian-Toufeksian documents:3

of the “2,100,000 Armenians in the Ottoman Empire in
1912, according to the Armenian Patriarch’s statistics in
Istanbul, only 77,435 remained in 1927.”1
Yet, these facts do not begin to sum up the depth andscope of the crimes committed against the Armenians.
The Genocide of 1915 was part of a long-term state policythat had its antecedents in the centrally planned massacre of over 200,000 Armenians in 1894-1896 by thetroops of Sultan Abdul Hamid II. In the name of Turkish
nationalism, the government of the Young Turks, known
as the Committee of Union and Progress (CUP), implemented an official policy of genocide. Dr. Nazim, one of
the ideologues of the CUP, stated in a closed session of
the Central Committee in February 1915: “It is absolutely
necessary to eliminate the Armenian people in its entirety, so that there is no further Armenian on this earth andthe very concept of Armenia is extinguished.”2 The Ottoman state apparatus, including its military, intelligence
services and administrative units, was the instrument of
this crime.
Both the CUP’s crimes and the inherently hateful attitudes underlying its policies were widely denounced at
the time. Many diplomats, consular agents and travelers witnessed and documented the horrors committed
against the Armenians. The US Ambassador in Turkey,
Henry Morgenthau, gave one of the most powerful
1-http://www.webislam.com/numeros/2003/215/noticias/ue_modelo_otomano.htm
2-G.S. Graber, Caravans to Oblivion: The Armenian Genocide, 1915 Ed. John Wiley &Sons Inc, New York, 1996, pp. 87-88.

4

descriptions of these massacres. In his report to President Woodrow Wilson, Morgenthau concluded: “I amconfident that the whole history of the human race contains no such horrible episode as this. The great massacres and persecutions of the past seem almost insignificant when compared with the sufferings of the Armenianrace in 1915.”1
Even representatives of Germany, Turkey’s ally during
World War I, sought to alert the world about the politicaldecision of the Turkish government to exterminate theArmenian people. For instance, Baron Hans Freiherr von
Wangenheim stated on 7 July 1915: “the [Turkish] government really aims at exterminating the Armenian racein the Ottoman Empire.”2
Even if by that time the concept of genocide was not
yet invented, the criminal acts committed against the
Armenian people were clearly considered crimes underinternational law. This was the conclusion France, GreatBritain and Russia all reached in their joint Declaration on
24 May 1915, in which they confirmed that the massacresof the Armenians in the Ottoman Empire were “crimes
against humanity and civilization for which would respond all the members of the Turkish government alongwith those who actually committed the massacres.” The
Treaty of Sèvres, signed on 10 August 1920 between the
Allies and Turkey, further confirmed the criminal nature
1-At http://www.cilicia.com/morgenthau/Morgen24.htm
2-Cited in Joe Verhoeven, “Le peuple arménien et le droit international”, in Le crimedu silence: le génocide arménien, Ed. Champs Flammarion, Paris, 1984, p. 273 (Originalin French, author’s translation).

5

of the massacres according to international law. This
treaty obligated the Turkish government to hand overto the Allies those leaders who were responsible for thecrimes in order for them to be tried before a court oflaw.1 Though the Treaty was never ratified, it expressed,
according to professor Verhoeven, “a conviction of unlawfullness independent of any subsequent ratification
or non-ratification of the Treaty of Sèvres.”2
Under Allied pressure, the Turkish government recognized the crimes committed against the Armenians, butnever characterized them as a crime against humanity.
By the same token, some judicial procedures took placein Turkey and some of the perpetrators of the genocide
were even sentenced.3 Yet, impunity for those responsible would soon be guaranteed with the substitution of
the Treaty of Sèvres with the Treaty of Lausanne on 24
July 1923 - which included a Declaration of Amnesty.
Despite the fact that the Armenian Genocide was widely
recognized and reported on when it was occurring, it
slowly began to fade from the memories of those outside of Armenian circles in the years following WorldWar I. Historian Roger Smith describes this as a process

1-Article 230 of the Treaty.
2-Joe Verhoeven, op. cit. p. 277.
3-See among others William A. Schabas Genocide in International Law, Cambridge
University Press, 2000, p.20; Raymond H. Kevorkian. “la Turquie face à ses responsabilités.” Le procés des criminels Jeunes-Turcs (1918-1920), in Revue d’histoire de la
Shoah - le monde juif - Ailleurs, hier, autrement: connaissance et reconnaissance dugénocide des arméniens. No. 177-178, janvier-août 2003, Ed. Centre de Documentation
Juive Contemporaine, Paris 2003, p. 166.

6

of memory erosion.1 As the majority of states and theInternational community gradually forgot about the
Armenian Genocide, it became a subject of a campaign ofdenial on behalf of Turkey. The geopolitical calculationsof the Cold War supported Turkey’s desire to erase the
Genocide from the pages of history. The impunity withwhich this crime was committed was compounded by
the world’s indifference; this silence, in turn, was further
compounded by a hateful campaign to deny this crime.
The United Nations did not escape this process ofmemory erosion and denial. Under pressure and interference from Turkey, reference to the Armenian Genocide was vetoed in its chambers on several occasions.
For instance, in the preliminary report on the Prevention and Punishment of the Crime of Genocide that the
special rapporteur Nicodème Ruhashyankiko (Rwanda)
presented to the Subcommission for the Prevention ofDiscrimination and Protection of Minorities in 1973, theArmenian massacres were initially characterized as “thefirst genocide of the twentieth century.”2 The following
year, upon the demand of the Turkish representative,
the UN Human Rights Commission ordered the special
rapporteur to omit every historical reference to the Ar-

1-Roger Smith, “The Armenian Genocide, Memory, Politics and Future” in
R. Hovannissian (ed.). The Armenian Genocide, New York, St. Martin’s Press, 1992,
pp. 3-4.
2-UN Document E/CN.4/Sub.2/L 583, paragraph 30.

7menian Genocide in the final report.1 Austria, Ecuador,
the United States, France, Iraq, Italy, Nigeria, Pakistan,
Rumania and Tunis all supported the Turkish demand.2
Only Great Britain, the Netherlands and the Soviet Union
supported the inclusion of the reference to the Armenians. In 1978, the special rapporteur presented a revised
version of his report in which the Armenian Genocide
was not mentioned.3 However, the following year, in the
Human Rights Commission, several diplomatic delegations advocated for the reinsertion of the mention of the
Armenian Genocide, including Austria, the United Statesand France, each of which had previously supported theTurkish position in 1974. With Benjamin Whitaker as the
new special rapporteur, the Armenian Genocide was finally mentioned again in 1985.4
Today, ninety years after the crime, the question of the
Armenian Genocide still awaits resolution. This is not,however, a mere exercise of historical memory. As Alfred Grosser states, “memory should forbid us, forbid
you ... [from] ignoring today’s crimes, especially when
they look like the crimes of yesterday, when they are
1-See UN Documents E/CN.4/Sub.2/L.597, 17 June 1974, paragraph 7: E/564, paragraphs 165-167 and E/CN.4/Sr.1286. See also Théo van Boven “Note concernant lasuppression de la référence aux massacres des arméniens dans l’étude sur la prévention et la répression du crime de Génocide”, in Tribunel Permanent des Peuples, Le
Crime de silence - le Génocide des arméniens. Ed. Champs Flammarion, Paris 1984,
pp. 289-294.
2-Théo van Boven “Note concernant la suppression de la référence aux massacres
des arméniens dans l’étude sur la prévention et la répression du crime de Génocide”,
in Tribunal Permanent des Peuples, Le Crime de silence - le Génocide des arméniens,
Ed. Champs Flammarion, Paris 1984, p. 290.
3-UN Document E/CN.4/Sub.2/416.
4-UN Document E/CN.4/Sub.2/19885/57.

8

located within the prolongation of those committed in
the past.”1 How can one not think about Hitler’s reflection to his generals in Obersalzberg in 1939 when he reviewed the Nazi plans of extermination in Poland andasked, “Who ... speaks today of the annihilation of the
Armenians?”2
The crime against the Armenian people still awaits a response from Turkey. The Genocide should be recognized
and the damages repaired. These are not utopian aims.
As the successor of the Ottoman Empire, the Turkish
state has international juridical obligations. Responsibility for crimes under international law falls upon the statethat commits them as well as its successor according to
the principle of continuity and responsibility of states.
The issue of the juridical responsibility of the Turkish
state for the Armenian Genocide is the source of growing interest today, particularly within the context of theongoing debate about Turkey’s admission into the European Union. We should never forget, however, that the
genocide perpetrated against the Armenian people is acrime against all humanity. It should be remembered, as
Warsaw’s General Prosecutor in the VII Conference ofUnification of Criminal Law (Brussels 1947) stated, genocide is “the most brutal and dangerous crime against
humanity.”3 The Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes against
Humanity, as well as the UN Commission of International
1-Alfred Grosser, Le crime et la mémoire, Ed. Flammarion, Paris, 1989, p. 17 (originalin French).
2-Cited in Norman Davies; Europe, A History, Ed. Pimplico, London 1997, p. 909.
3-See Quintano Ripollés, Antonio Tratado de Derecho Penal Internacional e Internacional Penal, Instituto “Francisco de Vitoria”, Madrid, 1955, Tomo l, p. 643.

9

Law, confirmed that genocide is a crime against humanity.1 Indeed, genocide is a matter of concern for us all
and it is to humanity as a whole to which Turkey must
respond.
What are Turkey’s international obligations and responsibilities for the Armenian Genocide? What are the norms
and principles of international law that are applicable? Is
the argument put forward by some deniers that it is notpossible to talk about the Armenian Genocide because
the concept was not yet defined at the same time according to international law a sustainable argument? Would
the application of the Convention on the Prevention andPunishment of the Crime of Genocide to the case of the
Armenian Genocide violate the non-retroactivity aspectof criminal law? Professor Alfred de Zayas provides ananswer to these and other questions in his excellent juridical opinion - a thoroughly documented, clearly articulated and highly valuable juridical analysis that proposesa concrete and durable resolutions to this crime against
humanity.

Federico Andreu-Guzmán
Senior Legal Advisor
International Commission of Jurists
April, 2005

1-See among others the Fourth Report by the Special Rapporteur of the International
Law Commission Mr. Doudou Thiam on the Draft Code of Offences Against the Peaceand Security of Mankind, Document A/CN. 4/398, 11 March 1986, p.10.

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EXECUTIVE SUMMARY
By Professor Alfred de Zayas, Geneva

Genocide is a jus cogens crime. Its prosecution and punishment are subject to universal jurisdiction, as are piracy,
slave-trade and other international crimes. It entails civil
and penal consequences giving rise to personal penal liability and State responsibility for reparation to the victims
and their descendants. Since the crime of genocide falls
within the category of delicta juris gentium and crimes
against humanity (as defined in the indictment and in the
judgment of the Nuremberg trials), State responsibility
and individual penal liability for genocide are not subject
to prescription or to any statutes of limitation.

11

Genocide1 and crimes against humanity2 are the gravest
international crimes and entail both civil and penal consequences. Because of the nature of the crimes, State
responsibility for reparation to victims and descendants
and individual criminal liability are not subject to prescription or statutes of limitation.
In the case of the Ottoman genocide against the
Armenians and other Christian minorities before, during
and after World War I, the perpetrators are dead and beyond the reach of criminal justice, but the Turkish Stateremains liable for the crimes committed by the Ottoman
Empire.
Genocide and crimes against humanity also give rise to
obligations of the perpetrating State toward the entire
international community (erga omnes doctrine). Turkey’s
international obligations are thus not only those towards the Armenian victims and their heirs – but also
toward the international community at large. Moreover,according to general principles of international law andinternational ordre public, States may not recognize as
legitimate the consequences of erga omnes crimes. Thus,
the international community must take appropriate
measures to ensure adequate reparation to the victims
and refrain from giving recognition to the consequences
1-William Schabas, Genocide in International Law, Cambridge University Press, 2000,
p. 21. See also Revised and updated report on the question of the prevention andpunishment of the crime of genocide, prepared by Special Rapporteur Mr. Ben
Whitaker (E/CN.4/Sub.2/1985/6).
2-Egon Schwelb. “Crimes Against Humanity”, 23 British Yearbook of International Law(1946), 178-226 at 181.

12

of genocide and crimes against humanity, including thewrongful acquisition of land, and of the personal property of the murdered victims.
The Genocide Convention of 1948 can be applied retroactively to the Armenian genocide, because most provisions of the Convention are declarative of pre-existing international law. There are numerous precedents for the
retroactive application of treaties, including the London
Agreement of 8 August 1945 establishing the Nuremberg Tribunal, and the Convention on the Non-Applicability of Statutes of Limitations to War Crimes and Crimes
against Humanity of 1968. It should be remembered that
the Genocide Convention did not “create” the crime of
genocide, but was intended to strengthen the pre-existing claims of victims of genocide, including the victims of
the Armenian genocide and the Holocaust.
According to article 31 of the Vienna Convention on the
Law of Treaties, the principal rule of interpretation is“the ordinary meaning given to the terms of the treaty intheir context and in the light of its object and purpose”.
The retroactive application of the Genocide Convention
is not only compatible with the ordinary meaning of theterms used in the Convention, but also necessary in thelight of the Convention’s object and purpose. Indeed,such retroactive application advances the important
goal of deterring future acts of genocide (prevention)
by way of condemning acts of genocide (suppression)that occurred prior to its entry into force, and rejecting
the consequences of said acts of genocide. This analysis

13supports the conclusion that the Genocide Convention
can be applied retroactively to the Genocide against the
Armenians.
The General Assembly can, pursuant to article 96 of the
UN Charter, ask the International Court of Justice for anadvisory opinion on the retroactive application of the
Genocide Convention and its legal consequences in theform of reparations due to the heirs of the victims of the
genocide. In this connection, Armenia and every State
party to the Genocide Convention can invoke article VIIIof the Convention and request the General Assembly “totake such action under the Charter of the United Nations
as they consider appropriate”.
Even without such an advisory opinion by the ICJ, theGovernment of Armenia or any other State party to theConvention, could invoke article IX and submit a disputeto the ICJ, requesting a determination that the massacres
against the Armenians constitute “genocide” within themeaning of the Convention. States parties to the Convention, including Turkey, are bound by Article IX which
stipulates: “Disputes between the Contracting Parties
relating to the interpretation, application, or fulfilmentof the Present Convention, including those relating to
the responsibility of a State for genocide or for any otheracts enumerated in article III, shall be submitted to theInternational Court of Justice at the request of any of theparties to the dispute.”
Among the principles of general international law which
any international tribunal would have to apply is the basic

14

principle of State responsibility stipulating that a State isliable for injuries caused by its wrongful acts and is boundto provide reparation for such injury.1 The Permanent
Court of International Justice enunciated this principle in
the Chorzow Factory Case2 as follows: “it is a principle ofinternational law, and even a general conception of law,that any breach of an engagement involves an obligation
to make reparation.” This principle is also expressed in
the Latin formula ubi jus, ibi remedium.
In 2002, the UN Sub-Commission for the Promotion andProtection of Human Rights appointed Paulo Sergio
Pinheiro (Brazil) as UN Special Rapporteur on Housing
and Property Restitution. In 2005, Pinheiro issued his report, now known as the “Pinheiro Principles”, reaffirming and strengthening the prior work of Special Rappor-

1-Malcolm Shaw, International Law, p. 481 “A breach of an international obligation
gives rise to a requirement for reparation.”; Wladyslaw Czaplinski, “State Succession and State Responsibility”, in Canadian Yearbook of International Law 339 (1991):“State responsibility is a legal relationship created through the violation of an international legal obligation by a State; that violation gives rise to the duty to compensate for any resulting damage, one of the oldest principles of international law anduniversally recognized in international practice.” Karl Zemanek, “Responsibility ofStates: General Principles” in R. Bernhardt (ed.), Encyclopedia of Public InternationalLaw, Vol. 4, 2000, pp. 219-229: Mohammed Bedjaoui, “Responsibility of States: Fault
and Strict Liability”, in Bernhardt (ed.), op. cit., pp. 212-216, Irwin Cotler, «ConfiscatedJewish Property: The Holocaust, Thefticide and Restitution: A Legal Perspective» in:
20 Cardozo Law Review, December 1998, pp. 601-624, p. 610.
2-Chorzow Factory Case (Germany v. Poland), 1928 P.C.J.J. (ser. A) No. 17, p. 29, Ignaz
Seidi-Hohenveldern, “German Interests in Polish Upper Silesia Cases”, in R. Bernhardt(ed.), Encyclopedia of Public International Law, vol. II, 1995, pp. 550-553.

15

teurs Louis Joinet, Théo van Boven and Cherif Bassiouni.1
Particularly relevant to the Armenian claims is Pinheiro
Principle 2 which stipulates:“2.1 All refugees and displaced persons have theright to have restored to them any housing, land
and/or property of which they were arbitrarily or
unlawfully deprived, or to be compensated for any
housing, land and/or property that is factually impossible to restore as determined by an independent, impartial tribunal.
2.2 States shall demonstrably prioritize the right torestitution as the preferred remedy for displacement and as a key element of restorative justice.
The right to restitution exists as a distinct right, andis prejudiced neither by the actual return nor nonreturn of refugees and displaced persons entitledto housing, land and property restitution.”
In 1997 the UN Special Rapporteur Awn Shawkat
Al Khasawneh (now Vice-President of the International
Court of Justice) issued his famous final report on the
Human Rights Dimensions of Population Transfers. Appended to his report is a 13-point Declaration. Article 8
stipulates:
1-U.N. Doc. E/CN.4/Sub. 2/2005/17 (2005) (“Pinheiro Principles”) endorsed Sub-Com,res. 2005/21, U.N. Doc. E/CN.4/2006/2 at 39 (2006), http://domino.un.org/pdfs/ocha_
pinheiro_principles.pdf See also OHCHR/FAO/IDMC/NRC/OCHA/UN-Habitat/UNHCR:
Housing and Property Restitution for Refugees and Displaced Persons: Implementing the“Pinheiro Principles” (2007). See also the Report of Special Rapporteur Awn Shawkat
Al Khasawneh on the Human Rights Dimensions of Population Transfers, UN Doc E/
CN. 4/Sub. 2/1997/23, including the appended Declaration, which affirms the right torestitution, and the pertinent Sub-Commission Resolutions 2002/30 and 2005/21.

16

“Every person has the right to return voluntarily,
and in safety and dignity, to the country of origin
and, within it, to the place of origin or choice. The
exercise of the right to return does not preclude
the victim’s right to adequate remedies, including
restoration of properties of which they were deprived in connection with or as a result of population transfers, compensation for any property thatcannot be restored to them, any other reparations
provided for in international law.”
Article 10 stipulates further:“Where acts or omissions prohibited in the present
Declaration are committed, the international community as a whole and individual States, are underan obligation:(a) not to recognize as legal the situation createdby such acts; (b) in ongoing situations, to ensure
the immediate cessation of the act and the reversal of the harmful consequences; (c) not to renderaid, assistance or support, financial or otherwise,
to the State which has committed or is committing
such act in the maintaining or strengthening of thesituation created by such act.”1
Logical consequences of the application of the Genocide
Convention to the genocide against the Armenians andother Christian minorities should be the return of monasteries, churches and other assets of historic and cultural
1-UN Doc. E/CN.4/Sub.2/1997/23.
See also http://www.unher.org/refworld/pdfid/404350a94.pdf

17

significance, as well as the granting of a measure of compensation to the descendants of the victims. The establishment of a general compensation fund would be a firststep in the right direction. In this connection, the restitution and compensation schemes elaborated for the victims of the Holocaust provide useful precedents.
There is not only a legal but also a moral obligation on
the part of the international community to take appropriate action in order to ensure that a measure of justice is achieved in respect of all victims of genocide andtheir descendants. A necessary precondition is the overdue recognition by Turkey of the historical reality of the
genocide and of its responsibility as the successor Stateof the Ottoman Empire. For as long as Turkey persists on
its official policy of “negationism”, it has no place in thecommunity of European States. In a spirit of reconciliation, it would be highly desirable if Turkey would issue an
official apology to the Armenian people. In this context
it is worth remembering that great nations have recognized mistakes committed by prior governments in thepast, and have issued formal apologies to the victims andtheir survivors, including Germany, Austria, Canada andmore recently the United States1 and Australia.2
1-On 23 November 1993 US President Bill Clinton signed Public Law 103-150, the “Apology Resolution”, a Congressional apology to the Hawaiian people because of the 1893
overthrow of the Hawaiian Kingdom, http://www.hawaii-nation.org/acknowledges.
html, http://www.hawaii-nation.org/publawsum.html
2-On 13 February 2008 Australian Prime Minister Kevin Rudd issued an apology to
the Australian Aborigines, http://australianetwork.com/news/infocus/s216253.htm.
The apology was well received by the Aborigines and by a majority of the Australian population. “Australia PM’s popularity at record high after apology poll”
http://afp.google.com/article/ALeqM5jdxkxSMtpSel6P6YDDVg39R7bDSQ

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© Alfred de Zayas, J.D. (Harvard), Dr. phil. (Göttingen)

Professor of International Law, Geneva School of Diplomacy
www.alfreddezayas.com“On doit des égards aux vivants; on ne doit aux morts que la vérité”

We owe respect to the living; to the dead we owe only truth.
François Marie Arouet (1694–1778), dit Voltaire1

1-Œdipe (œuvres (1785) vol. 1, p. 15 n).

19The Genocide Against
The Armenians 1915-1923
And The RelevanceOf The 1948
Genocide Convention

by Alfred de Zayas, J.D., Dr. Phil.

I. Historical Introduction
For centuries, the Armenian population of the Turkish
Ottoman Empire was subjected to mistreatment anddespotism, particularly in the Armenian homeland. As
a community, the Armenians maintained a precarious
existence almost everywhere in the Empire and wereable to survive and maintain their culture, at great sacrifice, through a variety of institutional and class-related
accommodations and adjustments.
Despite these difficult conditions, the Armenian experience varies with time and geography. Especially in the23

Ottoman capital, Istanbul, many Armenians were elevated to the ranks of the Empire’s privileged and were recognized and rewarded for their talents in government
administration and finance. Thus, institutionalised formsof ethnic discrimination and selective class favouritism
existed side by side in the Empire for a long time, setting
the stage, in the late 19th and early 20th centuries, for thelast and the most tragic phase of the Armenian experience in Turkish Ottoman history.
The rivalries between European powers and Russia toward the end of the 19th Century, the accession to the
Ottoman throne of Sultan Abdul Hamid II and the resulting ethnic and religious fanaticism deliberately fuelled by
the Sultan’s policies led to the persecution of all Christian minorities in the Ottoman Empire, particularly the
Armenians, who were subjected to various forms of discrimination and abuse, culminating in many massacresand eventually in the mass-scale slaughter, in 1896, inthe course of which more than 150,000 Armenians were
killed.
This trend continued even after the Young Turks came
to power in 1908, deposing the Sultan and promising an
era of freedom and equality. The massacres of Adanaand other towns of Cilicia in 1909, presumably beyond
the control of the Young Turk government, claimed thelives of some 30,000 Armenians in the course of a few
days. But it was under the cover of the First World War
that the genocide of the Armenian communities in Turkey and of other Christian minorities took place, claiming24the lives of 1.5 million Armenians, 800,000 Pontos andSmyrna Greeks and 300,000 Assyro-Chaldeans.1

1-Vahakn N. Dadrian, The History of the Armenian Genocide, Berghan Books, Providence, Rhode Island, 1995. Dadrian, “Armenians in Ottoman Turkey and the Armenian Genocide”, in Dinah Shelton (ed.), Encyclopedia of Genocide and Crimes Against
Humanity, Macmillan Reference, New York, 2005, Vol. 1, pp. 67-76. See also C. Fotiadis(ed.), The Genocide of the Pontus Greeks by the Turks: Volume 13, Thessaloniki: Herodotus, 2004; Norman Naimark, Fires of Hatred: Ethnic Cleansing in Twentieth-Century
Europe, Cambridge and London: Harvard University Press, 2001; Alfred de Zayas, “The
Istanbul Pogrom of 6-7 September 1955 in the Light of International Law” in Genocide
Studies and Prevention, Volume 2, Number 2, Summer 2007, pp. 137-154. Edmond Schneider (ed.), Les Persecutions antihelléniques en Turquie, depuis le début de la guerre européenne: D’après les rapports officiels des agents diplomatiques et consulaires - Paris, Bernard Grasset, 1918. Sébastien de Courtois, The Forgotten Genocide: Eastern Christians,
the last Arameans. Gorgias Press LLC., 2004. Salahi Ramadan Sonyel, The Assyrians ofTurkey: Victims of Major Power Policy. Turkish Historical Society Printing House, 2001.
See also sites: http://www.armenian-genocide.org
http://www.greek-genocide.org/index1.html

25

II. Intertemporal International Law
On Genocide

The punishment of the crime of genocide – whether
called exterminations, evacuations, mass atrocities, annihilation, liquidations, massacres or ethnic cleansing –as well as the obligation to make restitution to the survivors of the victims, were envisaged by the victorious
Allies of the First World War and included in the text of
the Peace Treaty of Sèvres of 10 August 1920 between
the Allies and the Ottoman Empire1. This Treaty contained not only a commitment to try Turkish officials forwar crimes committed by Ottoman Turkey against Allied
1-[1920] UKTS 11, Martens, Recueil général des traités, 99, 3e série 12, 1924, p. 720.

26

nationals1, but also for crimes committed by Turkish authorities against subjects of the Ottoman Empire of different ethnic origin, in particular the Armenians, crimes
which today would be termed genocide, and would also
fall under the more broadly generic term “crimes against
humanity”.
Pursuant to article 230 of the Treaty of Sèvres:“The Turkish Government undertakes to hand over tothe Allied Powers the persons whose surrender may berequired by the latter as being responsible for the massacres committed during the continuance of the state of
war on territory which formed part of the Turkish Empire on 1 August 1914. The Allied Powers reserve to themselves the right to designate the Tribunal which shall try
the persons so accused and the Turkish Government undertakes to recognise such Tribunal….”2
The principle of just restitution for the victims also existed, and was reflected in article 144 of the Treaty ofSèvres:“The Turkish Government recognises the injustice of thelaw of 1915 relating to Abandoned Properties (Emval-IMetroukeh), and of the supplementary provisions thereof, and declares them to be null and void, in the past as
in the future.

1-Particularly for violations of the Hague Regulations on Land Warfare, appended to
the IV. Hague Convention of 1907.
2-American Journal of International Law, Volume 15, Supplement, 1921, Official Documents, p. 235.

27

“The Turkish Government solemnly undertakes to facilitate to the greatest possible extent the return to theirhomes and re-establishment in their businesses of theTurkish subjects of non-Turkish race who have been forcibly driven from their homes by fear of massacre or any
other form of pressure since January 1, 1914. It recognises that any immovable or movable property of the said
Turkish subjects or of the communities to which they
belong, which can be recovered, must be restored tothem as soon as possible, in whatever hands it may befound…. The Turkish Government agrees that arbitralcommissions shall be appointed by the Council of the
League of Nations wherever found necessary. .. These
arbitral commissions shall hear all claims covered by this
Article and decide them by summary procedure.”1
Although Turkey signed the Treaty of Sèvres, formal ratification never followed, and the Allies did not apply thenecessary political and economic pressure on Turkey soas to ensure its implementation.2 Such failure was attributable to the international political disarray following theFirst World War, the rise of Soviet Russia, the withdrawalof British military presence from Turkey,3 the isolationist

1-Ibid., p. 210.
2-André Mandelstam, La Société des Nations et les puissances devant le Problème
Arménien, 2nd ed. 1970.
3-Paul Helmreich, From Paris To Sèvres , Ohio State University Press, Columbus, 1974,
pp. 131 et seq.

28

policies of the United States,1 the demise of the Young
Turk regime and the rise of Kemalism in Turkey.
No international criminal tribunal as envisaged in Article
230 was ever established. No arbitral commissions as
stipulated for in article 144 were ever set up.
A new peace treaty eventually emerged between Kemalist Turkey and the Allies (British Empire, France, Italy,
Japan, Greece, Romania and the Serbo-Croat-Slovene
state). The Treaty of Lausanne of 24 July 1923 abandoned
the Allied demand for international trial and punishmentof the Ottoman Turks for the genocide against the Armenians, the commitment to grant reparations to thesurvivors of the genocide, and the Sèvres recognition ofa free Armenian State (Section VI, Articles 88-93), which
had declared its independence on 28 May 1918, but in theend lost Western Armenia to Turkey and Eastern Armenia to a communist takeover (backed by Soviet Red Armyunits), which would ultimately lead to incorporation of
the new Republic of Armenia into the Soviet Union as a
1-Although U.S. diplomats had condemned the genocide as early as 1915, the U.S.
Government did not take any action to redress the injustices after the war. It is worth
remembering that U.S. Ambassador Henry Morgenthau, Sr., had called the massacres “race murder” and that on 10 July 1915 he had cabled Washington with thefollowing description of the Ottoman policy: “Persecution of Armenians assuming
unprecedented proportions. Reports from widely scattered districts indicate systematic attempt to uproot peaceful Armenian populations and through arbitrary arrests,
terrible tortures, whole-sale expulsions and deportations from one end of the empire
to the other accompanied by frequent instances of rape, pillage, and murder, turning
into massacre, to bring destruction and destitution on them. These measures are notin response to popular or fanatical demand but are purely arbitrary and directed form
Constantinople in the name of military necessity, often in districts where no military
operations are likely to take place.” Samantha Power, A Problem from Hell. America
and the Age of Genocide, Basic Books, New York, 2002, p. 6.

29

Soviet Republic.
Notwithstanding the fact that the Treaty of Sèvres neverentered into force, the text of the Treaty remains eloquent evidence of the international recognition of thecrime of “massacres” against the Armenian populationof Turkey.
Prior to the drafting and negotiation of the Treaty ofSèvres, on 28 May 1915, the Governments of France,
Great Britain and Russia had issued a joint declaration
denouncing the Ottoman Government’s massacre of
the Armenians as constituting “crimes against humanity
and civilization for which all the members of the Turkish
Government would be held responsible together with its
agents implicated in the massacres.”1
After the war, on 18 January 1919, the British High Commissioner, Admiral Arthur Calthorpe, informed the Turkish Foreign Minister that “His Majesty’s Government are
resolved to have proper punishment inflicted on those
responsible for the Armenian massacres”.2 In this context, the High Commissioner drew up a list of 142 persons whose surrender would be demanded from the Sultan once the peace treaty went into effect, 130 of whom
1-For an excellent discussion of Foreign and Commonwealth Office Documents
concerning the Armenian Genocide, see the Legal Opinion by Geoffrey Robertson,
QC, Was There an Armenian Genocide?, published in London, 9 October 2009, ISBN
978-0-9564086-0-0. See also Egon Schwelb, “Crimes Against Humanity”, 23 British
Yearbook of International Law (1946), 178-226 at 181.
2-FO 371/4174/118377 (folio 253), cited in Vahakn N. Dadrian, “Genocide as a Problem
of National and International Law. The World War I Armenian Case and its contemporary Legal Ramifications” (1989), 14 Yale Journal of International Law, pp. 221-334
at 282.

30

were specifically charged with massacring Armenians.1
For nearly two years Great Britain held some 140 Turkishprisoners at Malta, awaiting trial, but the British government was ultimately blackmailed into releasing them in
1921-22 in exchange for British officers and men who had
been taken hostage by the new Kemalist Turkish government.2
However, a few trials did take place before Turkish
courts martial in Istanbul, on the basis of articles 45 and170 of the Ottoman Penal Code. Several ministers in thewartime Turkish cabinet and leaders of the Ittihad party,
including the main architects of the genocide, the Young
Turk leaders Talaat Pasha,3 Minister of the Interior, andEnver Pasha,4 Minister of War, were tried in absentia
and convicted. The trials provide further evidence of thevarious aspects of the genocide against the Armenians.
The accused were found guilty in the judgment of 5 July
1919, of “the organization and execution of the crime of

1-James F. Willis, Prologue to Nuremberg. The Politics and Diplomacy of Punishing War
Criminals of the First World War, Greenwood Press, Westport, Connecticut, 1982,
p. 158.
2- Cf. the negationist view expressed by Bilâl N. Simsir, member of the Turkish Historical Society, in the brochure The Deportees of Malta and the Armenian Question,
published by the Foreign Policy Institute, Ankara, 1992.
3-Vahakn Dadrian, “Talaat”, in Dinah Shelton (ed.) Encyclopedia of Genocide, op. cit.,
Vol. III, pp. 1019-20.
4-Alfred de Zayas, “Ismail Enver”, in Dinah Shelton (ed.) op. cit., Vol. I, p. 289.

31

massacre” against the Armenian population.1 Further trials were conducted before other Ottoman courts, partly
on the basis of article 171 of the Ottoman military code
concerning the offence of plunder of goods, and invoking “the sublime precepts of Islam” as well as of “humanity and civilization” to condemn “the crimes of massacre, pillage and plunder”.2 These trials resulted in theconviction and execution of three of the perpetrators,
Mehmed Kemal, county executive of Bogazhyan, Abdullah Avni, of the Erzincan gendarmerie, and Behramzade
Nusret, Bayburt county executive, and District Commissioner of Ergani and Urfa (Edessa).3
1-William Schabas, Genocide in International Law, Cambridge University Press, 2ndrevised edition 2009, p. 19f. See also Revised and updated report on the question of
the prevention and punishment of the crime of genocide, prepared by Special Rapporteur Mr. Ben Whitaker (E/CN.4/Sub.2/1985/6): “At least 1 million, and possibly wellover half of the Armenian population, are reliably estimated by independent authorities and eye-witnesses to have been killed or death-marched. This is corroborated byreports in United States, German and British archives and of contemporary diplomats
in the Ottoman Empire, including those of its ally Germany. The German Ambassador,
Baron Hans von Wangenheim, for example, on 7 July 1915 wrote “the government is
indeed pursuing its goal of exterminating the Armenian race in the Ottoman Empire”(Wilhelmstrasse archives). Though the successor Turkish Government helped to institute trials of a few of those responsible for the massacres at which they were foundguilty, the present official Turkish contention is that genocide did not take place although there were many casualties and dispersals in the fighting, and that all theevidence to the contrary is forged. See, inter alia, Viscount Bryce and A. Toynbee,
The Treatment of Armenians in the Ottoman Empire 1915-16 (London, HMSO, 1916); G.
Chaliand and Y. Ternon, Génocide des Arméniens 1915-16 (Brussels, Complexe, 1980);
H. Morgenthau, Ambassador Morgenthau’s Story (New York, Doubleday 1918); J. Lepsius, Deutschland und Armenien (Potsdam, 1921 …” at p. 9, footnote 13; Samantha
Power, A Problem from Hell. America and the Age of Genocide, Basic Books, New York,
2002, pp. 1-16.
2-Trabzon Verdict, Takvimi Vekayi, No. 3616, Aug. 6, 1919, at 1-3, No. 3617, Aug. 7, 1919,
at 2. Vahakn N. Dadrian, “Genocide as a Problem of National and International Law:
The World War I Armenian Case and its Contemporary Legal Ramifications”, in Yale
Journal of International Law, Vol. 14, No. 2 (1989) pp. 221-334 at 308.
3-Dadrian, op. cit., p. 309.

32

Although the first tentative step toward the creationof an international criminal tribunal to punish genocide
failed because of Turkish nationalism and Allied indifference, consensus on the reality of the genocide had been
largely achieved. Of all failures to punish the war criminals of the First World War, this one was the most regrettable and it would have terrible consequences.1

1-James Willis, op. cit., p. 163.

33

III.

The Convention On The Prevention
And Punishment of The Crime of
Genocide Does Not Create A New
Offence In International Criminal
Law, But Is Declaratory of
Pre-Existing International Law.

As reflected in the relevant provisions of the Treaty ofSèvres, the doctrine of State responsibility for genocide and crimes against humanity already existed at thetime of the Ottoman massacres against the Armenians.
Such State responsibility entailed both an obligation toprovide restitution and/or compensation1 and the personal criminal liability of the perpetrators. The norms
were clear. Non-compliance with said norms by Turkey
1-For instance, in the context of international armed conflict, article III of the 1907
Hague Convention IV on Land Warfare stipulates: “A belligerent party which violates
the provisions of the said Regulations shall, if the case demands, be liable to pay
compensation. It shall be responsible for all acts committed by persons forming partof its armed forces.”

34

does not mean that the norms were meaningless. It onlymeans that effective international enforcement machinery did not exist yet. Even today international law is violated with impunity, because the enforcement mechanisms remain largely ineffective.
At the end of the Second World War, the victorious Allies,
pursuant to the London Agreement of 8 August 1945,1
adopted the Charter of the International Military Tribunal, which provided in Article 6 (c) for the prosecution of
the crime of genocide (“murder, extermination, enslavement, deportation and other inhumane acts committed
against any civilian population”) as international crimes
within the newly formulated offence of “crimes against
humanity”.
In the three-volume History of the United Nations War
Crimes Commission, we discover that the genocide
against the Armenians was very much in the minds of thedrafters of the London Agreement:“The provisions of Article 230 of the Peace Treaty ofSèvres were obviously intended to cover, in conformity
with the Allied note of 1915 … offences which had beencommitted on Turkish territory against persons of Turkish citizenship, though of Armenian… race. This article
constitutes, therefore, a precedent for Articles 6 c) and5 c) of the Nuremberg and Tokyo Charters, and offers
an example of one of the categories of ‘crimes against
1-8 U.N.T.S. 279; Reprinted in 39 American Journal of International Law, 257 (1945)(Supp).

35

humanity’ as understood by these enactments.”1
The term genocide itself was officially used in the Nuremberg indictment of 18 October 1945, charging undercount 3 that the defendants had committed murder and
ill-treatment of civilian populations, and, in particular:“conducted deliberate and systematic genocide, viz.,the extermination of racial and national groups, against
the civilian populations of certain occupied territories inorder to destroy particular races and classes of people
and national, racial or religious groups …”2
In his concluding statement, the British Prosecutor, Sir
Hartley Shawcross, stated that:“Genocide was not restricted to extermination of theJewish people or of the Gypsies. It was applied in different forms to Yugoslavia, to the non-German inhabitantsof Alsace-Lorraine, people of the Low Countries and of
Norway. The techniques varied from nation to nation,from people to people. The long-term aim was the samein all cases …”3
By Resolution 95 (1) of 11 December 1946, the UN General
Assembly “affirms the principles of international law recognized by the Charter of the Nuremberg Tribunal and1-United Nations War Crimes Commission, History of the United Nations War Crimes
Commission and the Development of the Laws of War, London, 1948, p. 45. Cherif
Bassiouni, Crimes Against Humanity in International Criminal Law, The Hague: Kluwer
Law International, (1999).
2-Trial of the Major War Criminals before the International Military Tribunal, Nuremberg,
14 November 1945 – 1 October 1946, Nuremberg, 1947, Vol. I, pp. 43-44.
3-Ibid., vol. XIX, pp. 497-498.

36

the judgment of the Tribunal”, and in Resolution 96 (1)of the same date, the General Assembly confirmed “thatgenocide is a crime in international law, which the civilized world condemns, and for the commission of whichprincipals and accomplices – whether private individuals, public officials or statesmen, and whether the crime
is committed on religious, racial, political or any othergrounds – are punishable”.1
On 9 December 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide,2 in which the parties“confirm that genocide, whether committed in time ofpeace or in time of war, is a crime under internationallaw which they undertake to prevent and to punish.”In the classic Oppenheim/Lauterpacht textbook on
International Law, Professor Hersch Lauterpacht notedthat the Convention was not only forward-looking butthat it had a primary retrospective significance:“It is apparent that, to a considerable extent, the Convention amounts to a registration of protest against pastmisdeed of individual or collective savagery rather thanto an effective instrument of their prevention or repression. Thus, as the punishment of acts of genocide is entrusted primarily to the municipal courts of the countries
concerned, it is clear that such acts, if perpetrated in
1-Official Records of the First Session of the General Assembly, Fifty-fifth plenary
meeting, 11 December 1946, pp. 188-189. See also Preamble of the Genocide Convention.
2-G.A. Resolution 260 A (III) of 9 December 1948, entry into force 12 January 1951.
http://www2.ohchr.org/english/law/genocide.htm

37

obedience to national legislation, must remain unpunished unless penalized by way of retroactive laws. On
the other hand, the Convention obliges the Parties toenact and keep in force legislation intended to preventand suppress such acts, and any failure to measure up
to that obligation is made subject to the jurisdiction of
the International Court of Justice and of the United Nations, With regard to the latter, the result of the provision in question is that acts of commission or omission
in respect of genocide are no longer, on any interpretation of the Charter, considered to be a matter exclusively
within the domestic jurisdiction of the States concerned.
For the Parties expressly concede to the United Nations
the right of intervention in this sphere. This aspect of thesituation constitutes a conspicuous feature of the Genocide Convention—a feature which probably outweighs,
in its legal and moral significance, the gaps, artificialities
and possible dangers of the Convention.”1
In this context, it is useful to look once again at the language of the Convention, which does not purport to create a new crime, but recognizes in the preamble “that at
all periods of history genocide has inflicted great losses
on humanity” and in Article 1 “The Contracting Parties
confirm that genocide, whether committed in time ofpeace or in time of war, is a crime under internationallaw…” (emphasis added) It is important to note thatthe contracting parties do not “declare” or “proclaim”
for the future, but “confirm” that genocide is already an
1-Oppenheim/Lauterpacht, International Law, 8th edition, 1955, vol. I, p. 751.

38

international crime.
Moreover, in the view of leading publicists in public international law, the Genocide Convention of 1948 was notconstitutive of a new offence in international law termed“genocide”, but was declaratory of the pre-existing
crime;1 in other words, the Convention merely codified
the prohibition of massacres, which was already binding
international law. In this sense, the Convention is necessarily both retrospective and future-oriented.
What the Genocide Convention added to the existing
body of international law was an affirmative obligation
on States parties to make provision for effective penalties
for all acts punishable under the Convention (article V),
a duty to prosecute (article VI) by a competent national
tribunal or by an international criminal court to be established. The Convention also creates a preventive mechanism by urging States to call upon organs of the United
Nations to take appropriate measures (article VIII), andconfers jurisdiction on the International Court of Justice
1-Nehemiah Robinson, The Genocide Convention: A Commentary, New York: Instituteof Jewish Affairs, 1960. Leo Kuper, International Action Against Genocide, London,
Minority Rights Group, 1984. Hans Heinrich Jescheck, “Genocide” in R. Bernhardt(ed.), Encyclopaedia of Public International Law, Vol. 4, 2000, pp. 541-544. Dieter
Blumenwitz, Rechtsgutachten über die Verbrechen an den Deutschen in Jugoslawien
1944-48, Juristische Studien, München 2002, pp. 26-27, where Professor Blumenwitz
affirms the retroactive application of the Genocide Convention to the killing ofsome 200,000 civilians, members of the ethnic German minority in Yugoslavia,
by Tito partisans and militia in 1944-45. Christian Tomuschat, “Die Vertreibung
der Sudetendeutschen. Zur Frage des Bestehens von Rechtsansprüchen nach
Völkerrecht und deutschem Recht”, in Zeitschrift für ausländisches öffentliches Recht
und Völkerrecht, Vol. 56, 1996, pp. 1-69. Felix Ermacora, Die Sudetendeutschen Fragen,
Munich, 1992, p. 178, where Professor Ermacora affirms the retroactive applicationof the Genocide Convention to the killing of some 250,000 civilians, members of theGerman ethnic minority of Czechoslovakia, in 1945-46.

39

in all matters relating to the Genocide Convention, including determination of the responsibility of a State for
genocide (article IX).
In its 1951 Advisory Opinion, the International Court ofJustice stated that “the principles underlying the Convention are principles which are recognized by civilized
nations as binding on all States, even without any conventional obligation.”1
Also in this sense, the UN Commission on Human Rights
noted in 1969 that “It is therefore taken for granted thatas a codification of existing international law the Convention on the prevention and Punishment of the Crimeof Genocide did neither extend nor restrain the notion
genocide, but that it only defined it more precisely.”2
Even though the Genocide Convention has not been
universally ratified, the prohibition of genocide must be
deemed to be jus cogens.3 As of December 2009, 141 of
the 192 member States of the United Nations had ratified
the Convention. Moreover, as the International Court ofJustice elaborated in the Barcelona Traction Case (Second
Phase), there are distinctions to be drawn between Stateobligations arising vis à vis another state and obligations
1-Reservations to the Convention on the Prevention and Punishment of the Crime of
Genocide, Advisory Opinion, ICJ Reports (1951) pp. 15-69. See Diane F. Orentlicher,“Genocide” in Roy Gutman and David Rieff (eds.), Crimes of War, New York 1999,
pp. 153-157. Joe Verhoeven, “Le Crime de Génocide”, in Revue belge de droit international, vol XXIV, 1991, pp. 5-26 at 13.
2-Report of the ad hoc working group of experts established under Resolution 2(XXIII)
and 2(XXIV) of the Commission on Human Rights, Doc. E/CN.4/984/Add.18.
3-Ian Brownlie, Principles of Public International Law, fourth edition, Clarendon Press,
Oxford, p. 513.

40

erga omnes , or “towards the international community as
a whole”. The Court stated:“By its very nature, the outlawing of genocide, aggression, slavery and racial discrimination are the concernof all States. In view of the importance of the rights involved, all States can be held to have a legal interest in
their protection; they are obligations erga omnes ….”1
It is precisely because of its erga omnes quality that thecrime of genocide cannot be subject to prescription, andthat State responsibility for the crime, i.e. the obligation of the genocidal State to make reparation, does notlapse with time. This is independent of a determination
whether or not the Genocide Convention applies retroactively to the Holocaust or to the genocide against the
Armenians.

1-Barcelona Traction, Light and Power Co., Ltd (Belgium v. Spain), ICJ Reports (1970)
3 at 32.

41

IV.

Non-Prescription of The Crime of
Genocide

When the United Nations drafted the Convention on the
Non-Applicability of Statutory Limitations to War Crimes
and Crimes Against Humanity (adopted 26 November
1968, in force 11 November 1970), it clearly and deliberately pronounced its retroactive application. In Article 1
it stipulated “No statutory limitation shall apply to thefollowing crimes, irrespective of the date of their commission… the crime of genocide as defined in the 1948 Convention… .” (emphasis added)
The principle of nullum crimen sine lege, nulla poena sinelege praevia (no crime without law, no penalty without

42

previous law), laid out in paragraph 1 of article 15 of theInternational Covenant on Civil and Political Rights is conditioned as follows in paragraph 2: “Nothing in this article shall prejudice the trial and punishment of any person
for any act or omission which, at the time when it wascommitted, was criminal according to the general principles of law recognized by the community of nations.”
Similarly, article 11, paragraph 2, of the Universal Declaration of Human Rights of 10 December 1948 stipulates
that the prohibition of ex post facto penal sanctions does
not apply if the offence was an offence under national orinternational law.
In this context it is relevant to recall the double vocationof the Genocide Convention, namely to prevent and topunish the crime of genocide. In order to prevent genocide, it is important to deter future offenders by ensuring the punishment of prior offenders. Indeed, the punishment of Nazi officials for participation in the crime of
genocide has made the horrible reality of genocide visible and concrete, so that genocide can be perceived by
all to be a heinous crime. One consequence of the universal recognition that genocide is a crime is that thecriminal, besides being condemned and punished for thecrime, is not allowed to keep the fruits of the crime. Confiscated Jewish properties have thus been returned tothe survivors or to their heirs, or compensation schemes
and funds have been established. This illustrates theprinciple that, together with the recognition of genocide as a crime under international law there is also an

43international duty to undo its effects and to grant restitution and compensation to the victims and their heirs.
Although Turkey is not a State party to the Convention
on the Non-Applicability of Statutory Limitations to War
Crimes and Crimes Against Humanity, international law isclear on the subject: There is no prescription on the prosecution of the crime of genocide, regardless of when the
genocide occurred, and the obligation of the responsible
State to make restitution or pay compensation for properties obtained in relation to a genocide does not lapse
with time.1
In its judgment of 6 October 1983 in the case concerning Klaus Barbie, the French Cour de Cassation rejected
the jurisdictional objections of the defence and statedthat the prohibition on statutory limitations for crimes
against humanity is now part of customary international law.2 France also enacted a law on 26 December
1964 dealing with crimes against humanity as “imprescriptibles” by nature (Nouveau Code penal of 1994, Arts.
211-1 to 213-5).3

1-General Assembly Resolutions 2538 (XXIV) of 15 December 1968; 2583 (XXIV) of 15
December 1969, 2712 (XXV) of 15 December 1970: 2840 (XXVI) of 18 December 1971,
3029 (XXVII) of 18 December 1972; 3074 (XXVIII) of 3 December 1973, etc.
2-Fédération nationale des déportés et internés et patriots et al. v. Barbie , 78 International Law Reports 125, p. 135. See Doman, “Aftermath of Nuremberg: The Trial of
Klaus Barbie”, 60 Colorado Law Review 449 (1989).
3-Jacques Francillon, “Aspects juridiques des crimes contre l’humanité”, in L’Actualité
du Génocide des Arméniens, Edipol, 1999, pp. 397-404 at 398.

44V. International And National
Prosecution of Genocide

The crime of genocide was one of the charges against
the accused in three of the twelve successor trials heldat Nuremberg pursuant to Control Council Law No. 10,
before US military tribunals following the international
military tribunal proceedings. In United States v. Alstötter et al., the Court made repeated reference to General
Assembly Resolution 96(I):“The General Assembly is not an international legislature, but it is the most authoritative organ in existence
for the interpretation of world opinion. Its recognition of
genocide as an international crime [in Resolution 96(I)]45

is persuasive evidence of the fact. We approve and adopt
its conclusions …[We] find no injustice to persons tried
for such crimes. They are chargeable with knowledge
that such acts were wrong and were punishable whencommitted.”1
In the Einsatzgruppen trial (Nuremberg Trial IX), the defendants were charged with participation in a “systematic program of genocide, aimed at the destruction offoreign nations and ethnic groups, in part by murderous
extermination, and in part by elimination and suppression of national characteristics”.2
The first national prosecutions specifically on the crimeof genocide, but without reference to the Genocide Convention, which had not yet been adopted, were carriedout by Polish courts. Thus, in July 1946, Artur Greiser was
charged with and convicted of genocide.3
The leading prosecution by a national court, with reference to the Genocide Convention, was carried out by theState of Israel. In 1960 Adolf Eichmann, a Nazi official in
World War II, was abducted from Argentina and taken
to Israel for trial under Israeli law for his involvement in
the genocide against the Jews during the war. Eichmann
was prosecuted under the “Nazi and Nazi Collaborators(Punishment) law of 1951”, which was modelled on the

1-United States of America v. Alstötter et al. (1948) 6 LRTWC 1, 3TWC 1, pp. 983.
2-United States of America v. Greifeldt et al. (1948) 13 LRTWC 1, p. 2.
3-Poland v. Greiser (1948) 13 LRTWC 70 (Supreme National Tribunal of Poland).

46

genocide provision of the 1948 Genocide Convention. 1
He was charged on four counts of genocide corresponding to the first four subparagraphs of article II of theConvention: killing Jews, causing serious physical andmental harm, placing Jews in living conditions calculated
to bring about their physical destruction, and imposing
measures intended to prevent births among Jews.2
Eichmann challenged the jurisdiction of the Israeli Court
with reference to article 6 of the Genocide Convention,
which stipulates:“Persons charged with genocide or any of the other acts
enumerated in article III shall be tried by a competenttribunal of the State in the territory of which the act wascommitted, or by such international penal tribunal as
may have jurisdiction with respect to those Contracting
Parties which shall have accepted its jurisdiction.”
In rejecting Eichmann’s objections, the Israeli District
Court held:“We must … draw a clear distinction between the firstpart of Article 1, which lays down that ‘the Contracting
Parties confirm that genocide, whether committed intime of peace or in time of war, is a crime under international law’ – a general provision which confirms a principle of customary international law as ‘binding on States,
1-A-G Israël v. Eichmann (1961) 36 ILR 5 (District Court of Jerusalem), paras. 20-22.
District Court Jerusalem, 11 December 1961 “The Attorney General of the Governmentof Israël v. Eichmann (case No. 40/61)” American Journal of International Law, 1962,
p. 814.
2-Schabas, op. cit., 426ff.

47

even without any conventional obligation’ – and Article
6, which comprises a special provision undertaken by thecontracting parties with regard to the trial of crimes that
may be committed in the future.”
Specifically on the issue of retroactivity, the Supreme
Court of Israel endorsed the view of the District Court
concerning the customary nature of the crime of genocide, and noted that “the enactment of the Law was notfrom the point of view of international law a legislativeact which conflicted with the principle nulla poena [nopenalty without previous law] or the operation of which
was retroactive, but rather one by which the Knesset
gave effect to international law and its objectives.”1
A number of courts in the United States have dealt with
the question of ex post facto legislation by relying on
the judgment of the International Military Tribunal at
Nuremberg to the effect that the Nuremberg Charter
was declarative of international law and was not newlaw. In allowing the extradition to Israel of John Demjanjuk, the United States District Court for Ohio and the
Circuit Court for the sixth Circuit held:“The Nuremberg International Military Tribunal provided
a new forum in which to prosecute persons accused of
war crimes committed during World War II pursuant toan agreement of the wartime Allies, see The Nuremberg
Tribunal, 6 F.R.D. 69. That tribunal consistently rejected
defendants’ claims that they were being tried under ex
1-Attorney-General of Israël v. Eichmann (1962), judgment of the Supreme Court ofIsrael, 36 ILR 277, para. 11.

48

post facto laws. Id…. the statute is not retroactive because it is jurisdictional and does not create a new crime.
Thus, Israel has not violated any prohibition against theex post facto applications of criminal laws which may exist in international law.”1
There are many other precedents of retrospective application of international law in other countries in matters concerning genocide. For instance, in the case ofRegina v. Imre Finta in Canada, a trial for “crimes against
humanity” was carried out on the basis of a 1987 Canadian statute that permits retrospective application ofinternational law. In its judgment the Court recognized
the existence of “crimes against humanity” under international law before 1945.2
The practice of courts in other countries also vindicatesthe validity of the principles contained in the Genocide
Convention. Although prosecution has not been basedon the Genocide Convention itself but rather on German
penal law, the Federal Republic of Germany has prosecuted more than sixty thousand Germans and othernationals for war crimes and complicity in the crime of
genocide committed during World War II, prior to theentry into force of the Genocide Convention, and many
judgments make reference to the Genocide Convention.
1-In the Matter of the Extradition of John Demjanjuk, 612 F. Supp. 544 (DC Ohio 1985),
pp. 554-8.
2-Regina v. Finta, 50 C.C.C. (3d) 247; 61 D.L.R. 85 (4th 1989). See also Green, “CanadianLaw, War Crimes and Crimes Against Humanity”, 59 British Yearbook of InternationalLaw, 217 (1988), Cherif Bassiouni, Crimes Against Humanity, 1992 Kluwer Academic
Publishers, Dordrecht, pp. 144, 226-227.

49

The German Government has similarly recognized its international obligation to make restitution of property
stolen from victims of genocide and to grant compensation to the survivors of the victims.1
It is important to note, moreover, that whether or not
the Genocide Convention itself applies in a concrete
situation, State practice and, in particular the Eichmanncase, show that the crime of genocide can be prosecutedon the basis of national law enacted following the commission of the offence. A fortiori civil liability for genocide can also be imposed on the basis of ex post facto
legislation.

1-N. Sagi, German Reparations. A History of the Negotiations, Jerusalem: The Magnes
Press, The Hebrew University, 1980, pp. 212–41.

50

VI.

The Competent Tribunal: Universal
Jurisdiction1 And “Protective
Principle”

In the Eichmann case the Israeli Court took the view thatcrimes against humanity constitute delicta juris gentium(crimes against the law of nations) , to which the principle of universal jurisdiction has at all times been generally applicable. In rejecting Eichmann’s jurisdictional
challenge, the District Court held:“The abhorrent crimes defined in this Law are not crimes
under Israel law alone. These crimes, which struck at the
1-Cherif Bassiouni, “Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice”, 42 Virginia Journal of International Law, 2001,
pp. 81- 160.

51

whole of mankind and shocked the conscience of nations, are grave offences against the law of nations itself(delicta juris gentium). Therefore, so far from international law negating or limiting the jurisdiction of countries with respect to such crimes, international law is, inthe absence of an International Court, in need of the judicial and legislative organs of every country to give effectto its criminal interdictions and to bring the criminals totrial. The jurisdiction to try crimes under internationallaw is universal.”
It drew upon Article 6 of the Genocide Convention to explain that the purpose of the Convention could not be tolimit prosecution only to the States where the offence
had been perpetrated:“Moreover, even with regard to the conventional application of the Convention, it is not to be assumed that
Article 6 is designed to limit the jurisdiction of countries
to try crimes of genocide by the principle of territoriality… Had Article 6 meant to provide that those accusedof genocide shall be tried only by ‘a competent tribunalof the State in the territory of which the act was committed’ (or by an ‘international court’ which has not been
constituted), then that article would have foiled the very
object of the Convention to prevent genocide and inflictpunishment therefore… .”Accordingly, the District Court took the view that it wasentitled to exercise jurisdiction under the “protective
principle”, “which gives the victim nation the right totry any who assault its existence”. The Court cited Hugo

52

Grotius and other authorities:“The State of Israel, the sovereign State of the Jewish
people, performs through its legislation the task of carrying into effect the right of the Jewish people to punish
the criminals who killed its sons with intent to put an end
to the survival of this people. We are convinced that thispower confirms to the subsisting principles of nations.”1
The Eichmann precedent illustrates the possibility for a
State that did not exist at the time of the crime (Israel) to
try and punish a foreign citizen for genocide, when it hasa legitimate and fundamental link to the victims.
Similarly, a State that did not exist at the time of the
genocide against the Armenians (Armenia) could represent the rights of the victims of the genocide against the
Armenians and their survivors. Moreover, based on thetheory of legitimate and fundamental links to the victims,
other States like France, Canada and the United States
could represent the rights of the descendants of the survivors of the genocide against the Armenians, who havebecome citizens of or currently reside in France, Canada,
and the United States.

1-Attorney-General of Israël v. Eichmann (judgment of the District Court of Jerusalem
12 December 1961) 36 ILR 5, 5-27 para. 38.

53

VII. The Doctrine of State Responsibility
For Internationally Wrongful Acts

A general principle of international law stipulates that aState is responsible for injuries caused by its wrongfulacts and bound to provide reparation for such injury.1
1-Malcolm Shaw, International Law, p. 481 “A breach of an international obligation
gives rise to a requirement for reparation.”, Wladyslaw Czaplinski, State Succession
and State Responsibility, in Canadian Yearbook of International law 339 (1991): “State
responsibility is a legal relationship created through the violation of an international
legal obligation by a State; that violation gives rise to the duty to compensate for any
resulting damage, one of the oldest principles of international law and universally
recognized in international practice.” Karl Zemanek, “Responsibility of States: General Principles” in R. Bernhardt (ed.), Encyclopaedia of Public International Law, Vol.
4, 2000, pp. 219-229; Mohammed Bedjaoui, “Responsibility of States: Fault and Strict
Liability”, in Bernhardt (ed.), pp. 212-216. Irwin Cotler, «Confiscated Jewish Property:
The Holocaust, Thefticide and Restitution : A Legal Prespective» in : 20 Cardozo Law
Review, December 1998, pp. 601-624, p. 610.

54

The Permanent Court of International Justice enunciated this principle in the Chorzow Factory Case as follows:“it is a principle of international law, and even a general
conception of law, that any breach of an engagement involves an obligation to make reparation.”1
It should be stressed that the wrong in question is notjust a mere violation of international law engaging interstate responsibility, but the gravest criminal violation ofinternational law engaging, as the International Court ofJustice has determined, international responsibility ergaomnes – an obligation of the State toward the international community as a whole.
Thus, the international crime of genocide imposes obligations not only on the State that perpetrated the genocide, but also on the entire international community:(a) not to recognize as legal a situation created by an international crime, (b) not to assist the author of an international crime in maintaining the illegal situation, and (c)to assist other States in the implementation of the aforementioned obligations.2 In a very real sense, the legal impact of the erga omnes nature of the crime of genocidegoes far beyond the mere retroactivity of application of
the Genocide Convention. It imposes an affirmative obligation on the international community not to recognize
an illegal situation resulting from genocide. The mechanism of international mediation and conciliation can be
1-Chorzow Factory Case (Germany v. Poland), 1928 P.C.I.J. (ser.A) No. 17. p. 29. Ignaz
Seidl-Hohenveldern, “German Interests in Polish Upper Silesia Cases”, in R. Bernhardt(ed.), Encyclopaedia of Public International Law, vol. II, 1995, pp. 550-553.
2-Karl Zemanek, op. cit. p. 226.

55

called upon to design appropriate schemes to redress
the wrong.

56

VIII. Continuation of The Crime of Genocide: The Destruction of Historical
Monuments

A further argument against the notion of prescription
with regard to the genocide against the Armenians isthat whereas the killing stopped around 1923, after mostof the Armenians in Turkey had been murdered or forced
into exile, the destruction of their property and the damnatio memoriae, the destruction of their historical memory continued. Such acts were intended to perpetuateand secure the work of genocide by destroying memory– the historical proof of the presence of thirty centuries
of Armenians in Asia Minor. Their churches and monasteries were burned by arson and destroyed by explosion.
In all, 1036 churches or monasteries were destroyed.

57

The Khtzkonk monastery (11th century) was destroyedby dynamite after the Second World War. The Cathedralof Urfa was converted into a museum. The building of
the Church of Christ Saviour at Ani was cut in two. The
Church of Ordou was transformed into a prison and theinscriptions in Armenian were erased.. The Armenian
inscriptions were removed from the Central School inConstantinople. Besides the deliberate destruction, theTurkish Government has contributed to the decay anddestruction of Armenian buildings by denying building
permits needed to carry out repairs.1 The scale of destruction of the Armenian cultural heritage has been so
widespread and systematic over the decades, that thesefew examples should not be misinterpreted as minimizing the severity and thoroughness of the continuation of
the genocide.
Among the Turkish acts of memory-destruction can belisted the suppression of the name “Armenia” from official maps and the changing of the names of Armenian villages and towns in Asia Minor, which continued late into
the 1950s. As University of California Professor Kouymjianelaborated to the Tribunal Permanent des Peuples in Parisin 1984, ninety per cent of the historical Armenian names

1-Christopher J. Walker (ed.), Armenia and Karabagh, Minority Rights Group, London.
1991, pp. 38-39.

58

have been modified.1 Inscriptions in Armenian language
continue to be removed from buildings and monuments.
And this happened in contravention of articles 38 to 44of the Treaty of Lausanne of 1923, which was intended
to protect the rights of minorities, including the culturalrights of the Armenian minority.
The absurdity of the prevailing situation with regard to
the non-restitution of Armenian properties can be illustrated by the following hypothetical situation: what
would the reaction of the international community be, if
the post-war German Government had converted Jewish
synagogues into Christian Churches and kept the lands
and houses of the victims of the Holocaust? Neither theworld community nor the German people themselves
would have tolerated this disgrace.
Another form of continuing the genocide is by rehabilitating the murderers. In March 1943 the mortal remainsof the principal architect of the genocide, Ittihad Interior Minister Talaat Pasha, were ceremonially repatriatedfrom Germany to Turkey, where he was re-interred on

1-Dickran Kouymjian, “Destruction des monuments historiques arméniens, poursuite de la politique turque de génocide” in Tribunal Permanent des Peuples, le Crimede Silence, Flammarion, Paris, 1984, pp. 295 et seq.; «La Confiscation des biens et ladestruction des monuments historiques comme manifestation du processus génocidaire» in L’Actualité du Génocide des Arméniens, Edipol. 1999, pp. 219-230. See also:
Armenia, Minority Rights Report, No. 32, London 1976.

59

the Hill of Liberty in Istanbul.1 Subsequently at least twostreets have been named after him.
Yet another form of continuing the genocide is by negating its historical reality, as if the 1.5 million Armenians ofAnatolia had never existed. Negationism entails a denialof the right to one’s identity and the right to one’s history. Particularly outrageous is Article 301 of the newTurkish Penal Code (TPC), which is being frequently used
to prosecute human rights defenders, journalists andother members of civil society who peacefully express
their dissenting opinion on historical or other issues. Article 301, on the “denigration of Turkishness”, the Republic, and the foundation and institutions of the State, wasintroduced with the legislative reforms of 1 June 2005
and replaced Article 159 of the old penal code. Amnesty
International has repeatedly opposed the use of Article
159 to prosecute non-violent critical opinion and called on
the Turkish authorities to abolish the article.2 More specifically, Article 305 of the TPC criminalizes “acts against
the fundamental national interest”. The written explanation attached to the draft, when the law passed throughParliament, provided as examples of such acts “making
1-Walker, op. cit. , p. 37. David Marshall Lang quotes in his book The Armenians. A People in Exile London 1981, p. 27, the telegraph which Talaat, addressed to the Governorof Aleppo on 15 September 1915: “You have already been informed that the Government has decided to exterminate entirely all the Armenians living in Turkey. No-one
opposed to this order can any longer hold an administrative position. Without pity for
women, children and invalids, however, tragic the methods of extermination may be,without heeding any scruples of conscience, their existence must be terminated.”
Also reported in the Daily Telegraph, London 29 May 1922.
2-http://www.amnesty.org/en/alfresco_asset/c8f87ee9-a303-11dc-8d74-6f45f39984e5/
eur440352005en.html

60

propaganda for the withdrawal of Turkish soldiers from
Cyprus or for the acceptance of a settlement in this issue
detrimental to Turkey... or, contrary to historical truths,
that the Armenians suffered a genocide after the FirstWorld War.” Besides being an insult to the memory of
the victims of the genocide, Turkish negationism entails
a gross violation of article 19 of the International Covenant on Civil and Political Rights, which guarantees theright to seek and impart information, and which is thebasis of the human right to truth.1

1- The Right to Truth was affirmed by the United Nations General Assembly in Resolution 2005/66. In September 2009 the Human Rights Council discussed a report by
the United Nations High Commissioner for Human Rights (UN Doc. A/HRC/12/19) at
its twelfth session and adopted a relevant resolution A/HRC/12/L.27. On 10 October
2008 a number of prominent historians led by Professor Pierre Nora of the Académie
Française proclaimed the “Appel de Blois”, which aims at ensuring the liberty of research of historians. http://www.lph-asso.fr/. A member of this pleiad Liberté pourl’Histoire, Professor Timothy Garton Ash (Oxford) published an article criticising Turkish “memory laws” in the Guardian of 16 October 2008: “The Freedom of Historical
Debate is Under Attack by the Memory Police”.
http://www.guardian.co.uk/commentisfree/2008/oct/16/humanrights

61

IX.

Doctrine of State Succession

In the report of the independent expert on the right torestitution, compensation and rehabilitation for victims
of grave violations of human rights, Professor M. Cherif
Bassiouni reiterated a basic principle of succession:“In international law, the doctrine of legal continuity andprinciples of State responsibility make a successor Government liable in respect of claims arising from a former
government’s violations.”1
This applies a fortiori in the case of genocide and its
1-Commission on Human Rights, Document E/CN.4/1999/65.

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consequences for the survivors and their descendants,
because State responsibility necessarily attaches to theState itself and does not allow for tabula rasa. Thus, it
was consistent with international law for the Federal Republic of Germany to assume full responsibility for thecrimes committed by the Third Reich. This has also been
the case with regard to the responsibility of France torepair the wrongs committed by the Vichy Government
during the German occupation, and of Norway to grant
restitution for confiscations and other injuries perpetrated on Jewish persons during the Quisling regime.1
Article 36 of the Vienna Convention on Succession ofStates in Respect of State Property, Archives and Debts
of 8 April 19832 provides that a succession of States doesnot “as such affect the rights and obligations of creditors”. Thus, the claims of the Armenians for their wrongfully confiscated properties did not disappear with thechange from the Sultanate to the regime of Mustafa Kemal.3
The principle of responsibility of successor States has
been held to apply even when the State and government that committed the wrong were not that of thesuccessor State. This principle was formulated, inter alia,
by the Permanent Court of Arbitration in the Lighthouse

1-Björn Westlie, Coming to Terms with the Past: the Process of Restitution of Jewish
Property in Norway (Inst. of the World Jewish Congress, Policy Forum No. 12, 1996).
2-UN Doc A/Conf.117/14.
3-Kevork K. Baghdjian, La confiscation, par le gouvernement turc, des biens arméniens…dits abandonnés , Montréal, 1987.

63

Arbitration case.1 There France claimed that Greece
was responsible for a breach of State concessions to its
citizens by the autonomous State of Crete, committed
before Greece’s assumption of sovereignty over Crete.
The PCA held that Greece was obligated to compensate
for Crete’s breaches, because Greece was the successor
State.
The principle of State succession undoubtedly applies
to the Eastern European States, and, in particular, toSerbia-Montenegro for the crimes committed by theFederal Republic of Yugoslavia.2 This is exemplified interalia in the judgment of the international Court of Justicein the case Bosnia and Herzegovina v. The Federal Republicof Yugoslavia3, which addresses the issue of successionof States and holds Serbia and Montenegro responsible
for events that occured during the rule of the Federal Republic of Yugoslavia. State practice, decisions of international tribunals and decisions of domestic courts support
this conclusion.

1-Lighthouses Arbitration between France and Greece , 23 International Law Reports
pp. 659-676. C. Rousseau, «L’affaire franco-hellénique des phares et la sentence arbitrale du 24 juillet 1956», Révue Générale de Droit International Public, Vol. 63 (1959)
pp. 248-292. J.P. Monnier, «La succession d’Etats en matière de responsabilité internationale», AFDI, vol. 8 (1962) pp. 65-90 at pp. 80-85.
2-For the question of the Federal Republic of Yugoslavia’s status vis à vis the Genocide
Convention, see Matthew Craven, “The Genocide Case, the Law of Treaties and State
Succession”, British Yearbook of International Law, 1997, pp. 127-163.
3-Initial submission against Yugoslavia, http://www.icj-cij.org/docket/files/91/7199.pdf,
final Judgment of 26 February 2007 against Serbia http://www.icj-cij.org/docket/
files/91/13685.pdf.

64

X.

Remedies to Victims of Ethnic
Cleansing And Genocide: Not Lapsed
Because of Prescription

The principal remedies for victims of genocide and ethnic cleansing are 1) the right to return to their homes andproperty, 2) the right to restitution and compensation.
In his final Report to the Sub-Commission, Special Rapporteur Awn Shawkat Al Khasawneh concluded thatforced population transfers violated numerous civil, political, economic, social and cultural rights and that States
were obliged to provide reparation to the victims of expulsion and ethnic cleansing. Article 8 of the appended
draft declaration on the illegality of forced populationtransfers stipulates:

65

“Every person has the right to return voluntarily, and insafety and dignity, to the country of origin and, within
it, to the place of origin or choice. The exercise of theright to return does not preclude the victim’s right toadequate remedies, including restoration of propertiesof which they were deprived in connection with or asa result of population transfers, compensation for any
property that cannot be restored to them, and any otherreparations provided for in international law.”1
Article 12 of the International Covenant on Civil and Political Rights guarantees the right of freedom of movement, including the right to return of refugees and expellees. The Committee’s general comment on article 12
stipulates: “The right of a person to enter his or her own
country recognizes the special relationship of a person
to that country. The right has various facets. It implies
the right to remain in one’s own country. It includes not
only the right to return after having left one’s own country; it may also entitle a person to come to the country
for the first time if he or she was born outside the country (for example, if that country is the person’s State of
1-Special Rapporteur Awn Shawkat Al Khasawneh, Final Report on the Human Rights
Dimensions of Population Transfers, Sub-Commission document E/CN.4/Sub.2/1997/23,
Annex II. Pursuant to the Dayton Accords of December 1995, the Human Rights
Chamber for Bosnia and Herzegovina was established. This Tribunal received some
15,000 cases concerning the right to return and the right to restitution, and contributed significantly to a growing jurisprudence in this field. See Human Rights Chamber
for Bosnia and Herzegovina, Digest of Decisions on Admissibility and Merits: 1996-2002,
with an Introduction by Manfred Nowak, N.P.Engel Publishers, Kehl am Rhein, 2004.
See also Alfred de Zayas, “The Right to the Homeland, Ethnic Cleansing and the International Criminal Tribunal for the former Yugoslavia” in Criminal Law Forum, Vol. 6,
1995, pp. 257-314, and Alfred de Zayas “Forced Population Transfer” in the Max Planck
Encyclopedia of Public International Law, Oxford University Press (online 2009).

66

nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also
implies prohibition of enforced population transfers or
mass expulsions to other countries.”1 This means that thediaspora Armenians, in principle, have a right to return to
the lands from which their ancestors had been expelled
or from whence they had to flee to escape genocide.
In this context it is relevant to call to mind that Turkey
ratified the ICCPR on 23 September 2003 and the first
Optional Protocol thereto on 26 November 2006. In principle, diaspora Armenians who wish to return and settle
in Turkey and who are denied their right to do so could
invoke article 12 of the Covenant before the Human
Rights Committee. It would be an interesting test case,especially when joined with considerations of continued
violations of CCPR rights, including the right to identity
and cultural heritage, affirmed by the Committee in its“Views” in case No. 549/1993 (Francis Hopu and Tepoaitu
Bessert v. France).2
Because of the continuing character of the crime of
genocide in factual and legal terms, neither the right toreturn nor the remedy of restitution has been foreclosed

1-Human Rights Committee, General Comment No. 27, CCPR/C/21/Rev.1/Add.9, para. 19.
http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/6c76e1b8ee1710e380256824005a10a9
See also Manfred Nowak, CCPR Commentary, N.P.Engel Publishers, 2005; Jakob
Th. Möller and Alfred de Zayas, United Nations Human Rights Committee Case Law
1977-2008, N.P.Engel 2009.
2-UN Doc. General Assembly Official Records, Fifty-second Session, Supplement 40(A/52/40). Human Rights Committee, Annual Report to the General Assembly, 1997 Report, Vol. II, Annex VI, Sect. H. para.10.3. See also Möller/de Zayas, op. cit., p. 335.

67

by the passage of time.1 Accordingly, the descendants ofthe victims of the genocide against the Armenians, bothindividually and collectively, have standing to advance a
claim for restitution. Such claims have been advanced by
the Jewish survivors of the Holocaust and by their descendants, who have successfully obtained restitution
and compensation from many States where there property had been confiscated.2 Whenever possible restitutio in integrum (complete restitution, restoration to theprevious condition) ought to be granted, so as to re-establish the situation that existed before the violation occurred. But where restitutio in integrum is not possible,
compensation may be substituted as a remedy.
Restitution remains a continuing State responsibility also
because of Turkey’s current human rights obligations
1-A leading international law expert in Europe, the late Professor Felix Ermacora,member of the UN Human Rights Committee, member of the European Commission
on Human Rights, and Special Rapporteur for Afghanistan and Chile of the UN Commission on Human Rights, maintained this view. In a detailed legal opinion on thecontinuing obligation to grant restitution to the expelled Germans from the Czech
Republic and from Slovakia, some 250,000 of whom had perished in the course of
their ethnic cleansing 1945-46, Ermacora wrote: “Ist die Konfiskation von Privatvermögen Teil eines Völkermordes, so ist auch ihre Rechtsnatur Teil eines Rechtsganzen.
D.h. der Vermögensentzug hatte für sich selbst im vorliegenden Gesamtzusammenhang Völkermordcharakter. Er unterliegt auch der Beurteilung aufgrund der Völkeremordkonvention, deren Partner sowohl die BRD als auch die Tschechoslowakei ist.
Entsprechend den Regeln internationalen Rechts sind die Akte des Völkermordes –so auch die Vernichtung von Lebensbedingungen, wie sie durch einen totalen Vermögensentzug stattgefunden haben und mit der Vertreibung kombiniert waren,zumindest nach der Konvention über die Nichtverjährbarkeit von Verbrechen gegen
die Menschlichkeit nicht verjährbar.” Felix Ermacora, Die Sudetendeutschen Fragen,
Munich, 1992, p. 178.
2-Irwin Cotler, op. cit., p. 609. Sabine Thomsen, “Restitution” in R. Bernhardt (ed.),Encyclopaedia of Public International Law, vol. 4, 2000, pp. 229-32. “Nuremberg 50
Years Later: The Restitution of Jewish Property and Norwegian Justice”, Nordic Journal of International Law, 1998, No. 3, pp. 275-287.

68under international treaty law, particularly the corpus ofinternational human rights law.
The United Nations Sub-Commission on Promotion andProtection of Human Rights devoted much time to theneed to formulate principles and guidelines on reparation for victims of gross violations of human Rights. Already in his 1997 report, Special Rapporteur Theo van
Boven observed in Principle 6:“Reparation may be claimed individually and where appropriate collectively, by the direct victims of violationsof human rights and international humanitarian law,
the immediate family, dependants or other persons orgroups of persons closely connected with the direct victims.”
Principle 9 of his draft further stipulates:“Statutes of limitations shall not apply in respect of periods during which no effective remedies exist for violations of human rights or international humanitarian law.
Civil claims relating to reparations for gross violations ofhuman rights and international humanitarian law shallnot be subject to statutes of limitations.”
and Principle 12:“Restitution shall be provided to re-establish the situation that existed prior to the violations of human rights
or international humanitarian law. Restitution requires,inter alia, … return to one’s place of residence and69restoration of… property.”1
UN Sub-Commission member Mr. Louis Joinet presented
two reports containing comparable language:“Any human rights violation gives rise to a right to reparation on the part of the victim or his beneficiaries,
implying a duty on the part of the State to make reparation and the possibility of seeking redress from theperpetrator.”2
On 16 December 2005, based on a recommendation by
the Commission on Human Rights and on the Sub-Commission reports of Theo van Boven, Cherif Bassiouni
and Louis Joinet, the UN General Assembly adopted the“Basic Principles and Guidelines on the Right to a Remedy and Repartion for Victims of Gross violations of International Human Rights Law and Serious Violations of

1-Commission on Human Rights, fifty-third session, Doc. E/CN.4/1997/104. Comparewith the first report by Professor Theo van Boven C/CH.4/Sub.2/1993/8 of 2 July 1993,
section IX, and the second report C/CN.4/Sub.2/1996/7 of 24 May 1996.
2-Special Rapporteur Louis Joinet, Principle 36 in document E/CN.4/Sub.23/1997/20 of
26 June 1997 and Principle 33 in Document E/CN.4/Sub.2/1997/20/Rev.1 of 2 October
1997.

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International Humanitarian Law.”1 Principle IX lays down
what is meant by reparation and stipulates in paragraphs
15 to 21:
“Para. 15. Adequate, effective and prompt reparation
is intended to promote justice by redressing gross violations of international human rights law or serious violations of international humanitarian law. Reparation
should be proportional to the gravity of the violations
and the harm suffered. In accordance with its domestic laws and international legal obligations, a State shallprovide reparation to victims for acts or omissions which
can be attributed to the State and constitute gross violations of international human rights law or serious violations of international humanitarian law. In cases where aperson, a legal person, or other entity is found liable forreparation to a victim, such party should provide reparation to the victim or compensate the State if the State
has already provided reparation to the victim.
1-General Assembly Resolution 60/147 of 16 December 2005. See also UN. Doc. E/CN.4/
RES/2005/35. See also “Revised Set of Basic Principles and Guidelines on the Right toReparation for Victims of Gross Violations of Human Rights and Humanitarian Law
Prepared by Mr. Theo van Boven Pursuant to Sub-Commission Decision 1995/117”
annex, UN Doc. E/CN.4/Sub.2/1996/17; “The Right to Restitution, Compensation andRehabilitation for Victims of Gross Violations of Human Rights and Fundamental
Freedoms, Final Report of the Special Rapporteur, Mr. M. Cherif Bassiouni, Submitted in Accordance with Commission Resolution 1999/33” UN Doc. E/CN.4/2000/62.
See also a publication of the Office of the UN High Commissioner for Human Rights:
http://www.ohchr.org/Documents/Publications/ReparationsProgrammes.pdf
See also International Commission of Jurists, The Right to a Remedy and to Reparation for Gross Human Rights Violations, Geneva, 2007, pp. 120 et seq. Susanne Malmström, “Restitution of Property and Compensation to Victims” in R. May et al., Essays
on ICTY Procedure and Evidence in Honour of Gabrielle Kirk McDonald, Kluwer Law
International, 2001, pp. 373-384. Dinah Shelton, Remedies in International Human
Rights Law, Oxford University Press, Oxford, 1999.

71

Para. 16. States should endeavour to establish national
programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.
Para. 17. States shall, with respect to claims by victims,
enforce domestic judgements for reparation against individuals or entities liable for the harm suffered and endeavour to enforce valid foreign legal judgements forreparation in accordance with domestic law and international legal obligations. To that end, States should provide under their domestic laws effective mechanisms forthe enforcement of reparation judgements.
Para. 18. In accordance with domestic law and international law, and taking account of individual circumstances, victims of gross violations of international humanrights law and serious violations of international humanitarian law should, as appropriate and proportional to thegravity of the violation and the circumstances of eachcase, be provided with full and effective reparation, as
laid out in principles 19 to 23, which include the following
forms: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.
Para. 19. Restitution should, whenever possible, restore
the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty,
enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration72

of employment and return of property.
Para. 20. Compensation should be provided for any economically assessable damage, as appropriate and proportional to the gravity of the violation and the circumstances of each case, resulting from gross violations ofinternational human rights law and serious violations ofinternational humanitarian law, such as:(a) Physical or mental harm;(b) Lost opportunities, including employment, educationand social benefits;(c) Material damages and loss of earnings, including lossof earning potential;(d) Moral damage;(e) Costs required for legal or expert assistance, medicine and medical services, and psychological and social
services.
Para. 21. Rehabilitation should include medical and psychological care as well as legal and social services.”
An important provision of these Basic Principles andGuidelines is the over-arching principle of non-discrimination. Principle XI thus stipulates: “The applicationand interpretation of these Basic Principles and Guidelines must be consistent with international human rights
law and international humanitarian law and be without
any discrimination of any kind or any ground, without
exception.”73

In the case of victims of forcible population transfer andethnic cleansing another set of UN Principles was formally adopted by the UN Sub-Commission on Promotion
and Protection of Human Rights in 2005, which could be
invoked by the descendants of the victims of the Armenian genocide: the Pinheiro Principles on Housing andProperty Restitution for Refugees and Displaced Persons.
Principle 2 stipulates:“2.1 All refugees and displaced persons have the right tohave restored to them any housing, land and/or propertyof which they were arbitrarily or unlawfully deprived, orto be compensated for any housing, land and/or property that is factually impossible to restore as determinedby an independent, impartial tribunal.
2.2 States shall demonstrably prioritize the right to restitution as the preferred remedy for displacement andas a key element of restorative justice. The right to restitution exists as a distinct right, and is prejudiced neither by the actual return nor non-return of refugees anddisplaced persons entitled to housing, land and property
restitution.”1
1-E/CN.4/Sub.2/2005/17. The Pinheiro Principles by Sub-Commission Special Rapporteur Paulo Sérgio Pinheiro, were formally endorsed by the UN Sub-Commission
on Promotion and Protection of Human Rights in August 2005. See http://ocha.
unog.ch/drptoolkit/PNormativeGuidanceSpecificIssues.html#HousingAndProperty
http://www.unhcr.org.ua/img/uploads/docs/PinheiroPrinciples.pdf
http://www.cohre.org/view_page.php?page_id=148
See also Resolutions of the Sub-Commission on Promotion and Protection of Human
Rights 2005/21 of 11 August 2005 and 2002/30 of 15 August 2002; Alfred de Zayas “Enteignung und Vertreibung im Lichte des Völkerrechts” in Gilbert Gornig (ed.), Eigentumstrecht und Enteignungsunrecht, Duncker & Humbolt, Berlin 2009, pp. 19-32.

74

Principle 10 stipulates:“10.1 All refugees and displaced persons have the rightto return voluntarily to their former homes, lands orplaces of habitual residence, in safety and dignity. Voluntary return in safety and dignity must be based on a free,
informed, individual choice. Refugees and displaced persons should be provided with complete, objective, upto-date, and accurate information, including on physical,
material and legal safety issues in countries or places oforigin.
10.2 States shall allow refugees and displaced persons
who wish to return voluntarily to their former homes,
lands or places of habitual residence to do so. This rightcannot be abridged under conditions of State succession, nor can it be subject to arbitrary or unlawful time
limitations.
10.3 Refugees and displaced persons shall not be forced,
or otherwise coerced, either directly or indirectly, to return to their former homes, lands or places of habitualresidence. Refugees and displaced persons should be
able to effectively pursue durable solutions to displacement other than return, if they so wish, without prejudicing their right to the restitution of their housing, landand property.
10.4 States should, when necessary, request from otherStates or international organizations the financial and/or
technical assistance required to facilitate the effective
voluntary return, in safety and dignity, of refugees and75

displaced persons.”
Admittedly, these principles are in the category of “softlaw” and do not bind States. On the other hand, they doreflect the emerging international consensus that refugees and expellees and their descendants have both aright to return and a right to restitution.
This is also confirmed in the 1998 Statute of the International Criminal Court, established in July 2002. While the
ICC does not have jurisdiction to examine instances of
genocide having occurred prior to the entry into forceof the Rome Statute in 2002, it does reaffirm the generalprinciple of international law of providing reparation to
victims. Article 75, paragraph 1, of the Statute stipulates
that “The Court shall establish principles relating to reparations”, which it defines as restitution, compensation
and rehabilitation.
In the context of reparation for gross violations of human rights, two other general principles of law are
relevant: the principle ex injuria non oritur jus (from awrong no right arises), that no State should be allowed
to profit from its own violations of law, and the principle

76

of “unjust enrichment”.1 It is a general principle of law
that the criminal cannot keep the fruits of the crime.2
The lands, buildings, bank accounts and other propertyof the Armenian communities in Turkey were systematically confiscated. Should there be no restitution for thisact of mass theft, accompanying, as it did, the ultimate
crime of genocide?
A particularly macabre chapter of the massacres against
the Armenians concerns the title to life insurances of thevictims of the genocide. The United States Ambassador
to the Ottoman Empire, Henry Morgenthau, noted in his
memoirs a most revealing incident:
1-Peter D. Maddaugh and John D. McCamus, Law of Restitution, Aurora, Ontario,
1990, pp. 484-493. Even in the Old Testament we find an admonition against unjust
enrichment, King James Version, 1 Kings, Chapter 21, verse 19: “Thus saith the Lord,
Hast thou killed, and also taken possession?” The story is that Naboth, a man from
Jezreel, had a vineyard on the outskirts of the city near King Ahab’s palace. The King
coveted the land, because it was convenient to his palace, but Naboth did not want
to sell, because the vineyard had been in his family for generations. Jezebel, Ahab’s
wife, persuaded the King to have Naboth falsely accused of blasphemy and stoned
to death. When King Ahab went to take possession of the vineyard, Elijah came tohim and admonished the King: “Isn’t killing Naboth bad enough? Must you rob him,
too? Because you have done this, dogs shall lick your blood outside the city just as
they licked the blood of Naboth!” The Living Bible (new translation), Tyndale House
Publishers, Wheaton, Illinois.1971.
2-J.W. Wade, “Acquisition of Property by wilfully killing another – A Statutory Solution”, 49 Harvard Law Review, pp. 715 et seq. (1936); W.M. McGovern, “Homicide andSuccession to Property” (1969) 68 Michigan Law Review, p. 65 et seq. There is ample
case-law stating that “it is against public policy for a person who is guilty of feloniously killing another to take any benefit in that other person’s estate” Re Johnson,(1950) 2 D.L.R. 69, at pp. 75-6 D.L.R., 1 W.W.R. 263. J. Lepsius estimated in 1919 in his
book Deutschland und Armenien, p. 277 that the profits accruing to the Young Turkoligarchy and its hangers-on from the expropriation of the Armenians amounted to
not less than a thousand million German marks. David Marshall Lang wrote in The
Armenians: “The Ottoman Bank President showed bank-notes soaked with blood andstuck through with dagger holes. Some torn ones had evidently been ripped from theclothing of murdered people …”, p. 28.

77

“One day Talaat made what was perhaps the most astonishing request I had ever heard. The New York Life
Insurance company and the Equitable Life of New York
had for years done considerable business among the Armenians. The extent to which this people insured theirlives was merely another indication of their thrifty habits.
‘I wish’ Talaat now said, ‘that you would get the American life insurance companies to send us a complete listof their Armenian policy holders. They are practically alldead now and have left no heirs to collect the money. Itof course all escheats to the State. The Government isthe beneficiary now.”1 Ambassador Morgenthau did notcomply with Talaat’s request.
In denying the applicability of statutes of limitation torestitution claims by survivors of the Holocaust, Professor Irwin Cotler argues:“The paradigm here is not that of restitution in a domestic civil action involving principles of civil and property
law, or restitution in an international context involving
state responsibility in matters of appropriation of property of aliens; rather, the paradigm – if there can be sucha paradigm in so abhorrent a crime – is that of restitution for Nuremberg crimes, which is something dramatically different in precedent and principles ... Nuremberg
crimes are imprescribable,2 or Nuremberg law – or international laws anchored in Nuremberg Principles – does
1-Henry Morgenthau, Ambassador Morgenthau’s Story, New York, 1919. Reissued byTaderon Press, Reading, England, 2000, p. 225.
2-[sic] imprescriptible or indefeasible.

78not recognize the applicability of statutes of limitations,as set forth in the Convention on the Non-Applicability of
Statutory Limitations to War Crimes and Crimes Against
Humanity.”1
The same argument applies with respect to the survivorsof the genocide against the Armenians and their descendents. It is an enduring challenge to international morality that Turkey continues to benefit from Armenian lands
and buildings and that it even cashed in on the life insurance of some of the Armenians whom the Ottoman Government itself had exterminated.
In this context it is important to recall the obligations ofStates parties under the International Covenant on Civil
and Political Rights (ratified by Turkey on 23 September
2003, entry into force 23 December 2003), in particular
the obligations that result from article 1, which stipulates
the rights of peoples to self-determination and their rightto their natural wealth and resources, as well as the obligations resulting from article 27, which provides for special treatment of ethnic and cultural minorities. It would
follow that “historical inequities” should be redressed,
and that the Armenian people are entitled, both underarticles 1 and 27 of the Covenant, to the return of theircultural heritage. Pertinent in this context is the decision of the United Nations Human Rights Committee incase No. 167/1984, Lubicon Lake Band v. Canada, where
the Committee determined that there had been a violation of article 27 and commented: “Historical inequities,
1-Irwin Cotler, op. cit., p. 621.

79

to which the State party refers, and certain more recent
developments threaten the way of life and culture of the
Lubicon Lake Band, and constitute a violation of article
27 so long as they continue.”1 This judgment of the Human Rights Committee illustrates and reaffirms the application of the international law concept of “continuing
situations” and “continuing effects” of gross violationsof human rights and the justiciability of claims based onsuch “continuing effects”.

1-Selected Decisions of the Human Rights Committee under the Optional Protocol,Vol. III, p. 78. UN Doc CCPR/C/OP/3, New York and Geneva 2002.

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XI.

A Recurring Red Herring:
The Genocide Convention And
The Principle of Non-Retroactivity

Recently the debate on the genocide against the Armenians has experienced a new variant: It is argued thateven if the Armenians were subjected to genocide, there
is little that can be done about it today, because the
Genocide Convention cannot be applied retroactively.
This theory contains two fallacies: 1) that the Armenian
claims are derived from the Genocide Convention, and 2)
that the Convention cannot be applied retroactively.
It is clear from the above that the Armenian claims derive from the doctrine of State responsibility for crimes
against humanity, and that this international liability pre-81

dated the entry into force of the Genocide Convention.
As shown above, the Turkish liability for genocide wasreflected in Articles 230 and 144 of the Treaty of Sèvres
of 1920. The German liability for the Holocaust was reflected in the London Agreement of 1945, both predating the Convention.
As to the general principle of non-retroactivity of treaties, however, it is important to note that this principle
admits of many exceptions and, in any event, is not a peremptory norm of international law.1 Admittedly, the positivist approach to international law relies on a presumption of non-retroactivity, as noted by Professor Charles
Rousseau: “International law appears to be determinedby the principle of non-retroactivity. This principle is theresult of treaty, diplomatic and judicial practice.”2Moreover, Article 28 of the Vienna Convention on the
Law of Treaties provides that “Unless a different intention appears from the treaty or is otherwise established,
its provisions do not bind a party in relation to any act orfact which took place or any situation which ceased toexist before the date of the entry into force of the treaty
with respect to that party.”
Yet, in his commentary on the Vienna Convention on the
Law of Treaties, Sir Ian Sinclair refers to the commentary
1-Ian Sinclair, The Vienna Convention on the Law of Treaties, second edition 1984,
p. 85. Vahakn N. Dadrian, “The Armenian Genocide and the Legal and Political Issues
in the Failure to Prevent or Punish the Crime” 29 U. West. L.A. L. Rev. 43 (1998); John
Shamsey, “Comment: 80 Years Too Late: The International Criminal Court and the 20th
Century’s First Genocide” 11 Journal of Transnational Law & Policy 327 (Spring 2002).
2-Charles Rousseau, 1 Principes généraux du droit international public 486 (1944).

82

of the International Law Commission on the opening
phrase of article 28, which explains that such language(instead of the more usual wording “unless the treaty
otherwise provides”) was used “in order to allow forcases where the very nature of the treaty rather than its
specific provisions indicates that it is intended to havecertain retroactive effects.”1 Sinclair goes on to refer tothe famous Mavrommatis Palestine Concessions case, inwhich the United Kingdom had contested the jurisdiction of the Permanent Court of International Justice on
the ground that the acts complained of had taken place
before Protocol XII the Treaty of Lausanne had come into
force. In rejecting this submission, the Court stated:“Protocol XII was drawn up in order to fix the conditions
governing the recognition and treatment by the contracting parties of certain concessions granted by the
Ottoman authorities before the conclusion of the Protocol. An essential characteristic therefore of Protocol XII
is that its effects extend to legal situations dating from atime previous to its own existence. If provision were notmade in the clauses of the Protocol for the protectionof the rights recognised therein as against infringements
before the coming into force of that instrument, the Protocol would be ineffective as regards the very period atwhich the rights in question are most in need of protection. The Court therefore considers that the Protocol
guarantees the rights recognised in it against any violation regardless of the date at which it may have taken
1-Yearbook of the International Law Commission (1966-II), pp. 212-13.

83

place.”1
Sinclair also addressed the debate that accompanied theretention of the worlds “in relation to any … situation
which ceased to exist before the date of entry into forceof the treaty”. Whereas the United States delegation
unsuccessfully argued for deletion, the majority of thedelegations insisted that a treaty may well apply to “situations” that continued, even if the facts giving rise to thesituation had punctually occurred prior to the entry into
force of the treaty.2
Among the many exceptions known to the principle ofnon-retroactivity is the inclusion in the London Agreement of 8 August 1945 of the new “crime against peace”,
formulated ex post facto , and applied by the Nuremberg
and Tokyo Tribunals . In this connection Professor Hans
Kelsen commented:“The rule against retroactive legislation is a principle ofjustice. Individual criminal responsibility represents certainly a higher degree of justice than collective responsibility, the typical technique of primitive law. Since theinternationally illegal acts for which the London Agreement established individual criminal responsibility werecertainly also morally most objectionable, and the persons who committed these acts were certainly awareof their immoral character, the retroactivity of the law
applied to them can hardly be considered as absolutely
1-(1924) P.C.I.J., ser. A, No. 2, at 34.
2-Sinclair, op. cit., p. 86. The US proposal was defeated by a vote of 47 to 23, withseventeen abstentions.

84

incompatible with justice. … In case two postulates ofjustice are in conflict with each other, the higher one prevails; and to punish those who were morally responsible
for the international crime of the Second World War
may certainly be considered as more important than tocomply with the rather relative rule against ex post facto
laws, open to so many exceptions.”1
The general rule of non-retroactivity of treaties and conventions, which was abandoned in Nuremberg in connection with the new concept of “crimes against peace”,2 isnot, however, of relevance in the context of the crime of
genocide, which has always been a crime under national
penal laws, as a manifestation of multiple murder, andwhich, moreover, must be seen as an international crime
under “general principles of law”.3
Reference to the “general principles of law” is found, forinstance, in the famous “Martens Clause”, contained in
the preamble of the 1899 and 1907 Hague Convention on
1-Hans Kelsen, “Will the Judgement in the Nuremberg Trial Constitute a Precedent inInternational Law?” 1 International Law Quarterly, 153, 164-65 (1947). See also Hans
Kelsen, “The Rule Against Ex post Facto Law and the Prosecution of the Axis War
Criminals”, 2 The Judge Advocate Journal 8 (1945).
2-Alfred de Zayas, “Aggression”, in Dinah Shelton, Encyclopedia of Genocide, op. cit.,
Vol. I, pp. 11-16.
3-In his opening Statement at the International Military Tribunal, the British Chief
Prosecutor Lord Hartley Shawcross stated: “There is thus no substantial retroactivity
in the provisions of the Charter. It merely fixes the responsibility for a crime alreadyclearly established as such by positive law upon its actual perpetrators. It fills a gap ininternational criminal procedure. There is all the difference between saying to a man,‘You will now be punished for what was not a crime at all at the time you committedit’, and in saying to him ‘You will now pay the penalty for conduct which was contrary
to law and a crime when you executed it, although, owing to the imperfection of theinternational machinery, there was at that time no court competent to pronounce
judgement against you.’”85

Land Warfare:“Until a more complete code of the laws of war has been
issued, the High Contracting Parties deem it expedient
to declare that, in cases not included in the Regulations
adopted by them, the inhabitants and the belligerents
remain under the protection and the rule of the principles of the law of nations as they result from the usages
established among civilized peoples, from the laws ofhumanity, and the dictates of the public conscience.”
Thus, the Genocide Convention of 1948 can be applied
retroactively, because its key provisions are declarativeof pre-existing international law. Among several precedents for the retroactive application of treaties, the following are particularly relevant in the context of genocide:* the London Agreement of 8 August 1945 (Charter of
the Nuremberg Tribunal)* the Convention on the Non-Applicability of Statutes ofLimitation to War Crimes and Crimes Against Humanityof 1968* Similarly, there is precedent for the ex post facto drafting and adoption of international penal charters by theUnited Nations Security Council under its Chapter VII jurisdiction, such as the Statutes of the International Criminal Tribunal for the Former Yugoslavia,1 the International
1-William A. Schabas, «Sentencing by International Tribunals : A Human Rights Approach», 7 Duke Journal of Comparative and International Law, 461.

86

Criminal Tribunal for Rwanda,1 and the International Tribunal for Sierra Leone.
The language of the Genocide Convention neither excludes nor requires its retroactive application. In otherwords – there is nothing in the language of the Convention that would prohibit its retroactive application. By
contrast, there are numerous international treaties thatspecifically state that they will not apply retroactively.
For example, article 11 of the 1998 Statute of the International Criminal Court specifies that “the Court has jurisdiction only with respect to crimes committed after theentry into force of this Statute”.
And there are treaties that purportedly do not apply
retrospectively, but in practice are so applied, as is thecase with the Vienna Convention on the Law of Treatiesof 1969, article 4 of which stipulates: “the Convention
applies only to treaties which are concluded by States
after the entry into force of the present Convention”.
Ever since the adoption of the Convention, however,international courts and tribunals have made reference
to its provisions as being declarative of pre-existing law
and practice, thus reflecting the customary internationalrules on treaties and the prevailing opinio juris.2
It is significant that the drafters of the Genocide Conven1-Requel Cross, Case Western Reserve University School of Law, International War
Crimes Project, International Criminal Tribunal for Rwanda, Memorandum for the Office of the Prosecutor. Issue I: The Relevance of the Eichmann, Barbie and Finta Trials
for the ICTR, Spring 2003.
2-Rudolf Bernhardt, «Treaties» in R. Bernhardt (ed.), Encyclopaedia of Public International Law, Vol. 4, Elsevier, Amsterdam, 2000, pp. 926-932.

87tion did not stipulate that it should apply only in the future, although they could easily have done so, had they
intended to limit its scope of application. Thus, the question arises as to the object and purpose of the Genocide
Convention.
Pursuant to article 31 of the Vienna Convention on the
Law of Treaties, the principal rule of interpretation is“the ordinary meaning given to the terms of the treaty intheir context and in the light of its object and purpose”.
The retroactive application of the Genocide Convention
is compatible with the ordinary meaning of terms in thelight of the object and purpose of the Convention. Further, such retroactive application appears necessary, inorder to serve the important object of deterring futureacts of genocide (prevention) by way of establishing theprecedent of punishing acts of genocide that occurredprior to its entry into force (suppression). According toarticle 32 of the Vienna Convention on the Law of Treaties, the use of the travaux préparatoires of any treaty
or convention is deemed only a supplementary meansof interpretation. The travaux préparatoires of the Genocide Convention, however, are inconclusive with regard
to the issue of retroactive application. Whereas severaldelegations were future-oriented, others saw the problem more broadly, in the light of the retroactive application of the London Charter of 8 August 1945 to the Nazi
crimes of genocide that had preceded it, e.g. the Polishrepresentative, Professor Manfred Lachs, and the United88Kingdom Representative, Sir Hartley Shawcross.1
While non-retroactivity is a principle that has pragmatic
value, it is frequently abandoned in international treaties
and in national legislation concerning intellectual property, copyright and taxation. Bearing in mind that there
exists a higher legal regime for human rights and a jus
cogens obligation to refrain from genocide, retroactivity
is not only appropriate but also just and necessary as amatter of international ordre public.
In regard to private property confiscated in the context
of the Holocaust, United States jurisdictions have not hesitated to apply laws retroactively. Thus, for instance, inaffirming its jurisdiction in Altmann v. Republic of Austria,
the United States Court of Appeals for the Ninth Circuit
decided on 12 December 2002 that the 1976 Foreign Sovereign Immunities Act (FSIA) applied retroactively to theevents of the late 1930s and 1940s. The US Court tookjurisdiction and found that the property of Mrs. Altmann
had been wrongfully and discriminatorily appropriatedin violation of international law.2
Similarly, with regard to the restitution of Armenian
1-Official Records of the Third Session of the General Assembly, Sixth Committee,
Sixty-fourth meeting, Palais de Chaillot, Paris, 1 October 1948, pp. 17-20, See also
the statements of the Czechoslovak representative, Mr. Prochazka, stressing theneed to connect the convention directly with the historical events which had proved
the necessity for its existence, and to stress the relationship between genocide
and the doctrines of nazism, fascism and Japanese imperialism.”, Sixty-sixth
meeting, 4 October 1948, pp. 29-30.
2-United States Court of Appeals for the Ninth Circuit: Altmann v. Republic of Austria,
No. 01-56003 (December 12, 2002) . Affirmed on writ of certiorari, 7 June 2004, UnitedStates Supreme Court, 541 U.S. 677 (2004).

89

property, it is conceivable that in an action brought byArmenians against Turkey before a United States federal court, jurisdiction could be established pursuant
to the United States Alien Tort Claims Act, which statesthat “the district courts shall have original jurisdiction of
any civil action by an alien for a tort only, committed inviolation of the law of nations or a treaty of the UnitedStates”.1

1-Alien Tort Statute, 28 U.S.C. §1350 (2004). For a discussion of the Act, see Jordan
J. Paust, “the History, Nature, and Reach of the Alien Tort Claims Act” in 16
Florida Journal of International Law, Number 2, June 2004, pp. 249-266. See also
Human Rights Watch 2003, “Background on the Alien Tort Claims Act” available at
http://www.hrw.org. M. Bazyler, “Suing Hitler’s Willing Business Partners: American
Justice and Holocaust Morality” See also, Jewish Political Studies Review, Fall 2004,
No. 16.

90

XII. Conclusion: Bringing The Genocide
Against The Armenians Before The
International Court of JusticeSince both Turkey (31 July 1950) and Armenia (23 June
1993)1 are States parties to the Genocide Convention, it
would be possible to invoke article VIII, which provides
that any contracting party may call upon the competentorgans of the United Nations to take such action as they
consider appropriate for the “suppression” of genocide.
“Suppression” must mean more than just retributive
1-Armenia used to be a Soviet Republic. Thus, by principles of succession, theapplication of the Convention actually goes back to the date when the Soviet Union
became a State party to the Genocide Convention, on 3 May 1954.

91

justice. In order to suppress the crime, it is necessary to
suppress, as far as possible, its consequences. This entails, besides punishing the guilty, providing restitution
and compensation to the surviving generations. Armenia
may also invoke article IX of the Convention, which provides that:“Disputes between the Contracting Parties relating to
the interpretation, application, or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts
enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”
Admittedly, the criminal law aspects of the Genocide
Convention are of lesser relevance in the Armenian context, since none of the perpetrators of the genocide
against the Armenians are still alive. On the other hand,
the Armenian properties that were wrongfully confiscated have not been returned to the survivors of the genocide, to their descendants or to the Armenian Church,
nor has compensation been paid to the survivors of the
genocide or to their descendants. In this context it isworth noting the important restitution of many churches and monasteries in the ex-Soviet republics including
Armenia, restitution that was effected in the 1990’s forconfiscations that had occurred seventy years earlier,92

following the Bolshevik Revolution.1 Based on this precedent, restitution of Armenian churches and monasteries would appear not just morally mandated, but also
entirely implementable in practice.
A determination of the crime of genocide by the International Court of Justice would facilitate the settlement ofclaims for restitution, including the identification of cultural and other properties confiscated and/or destroyed,such as churches, monasteries and other assets of historic and cultural significance to the Armenian people,
that should be returned to their legal owners, the Armenian people and the Armenian Church.
An objection on the part of Turkey about the standingof Armenia to represent the rights of the descendantsof the survivors of the genocide is countered by the factthat many descendants are citizens of Armenia; reference to the “protective principle” enunciated by theDistrict Court of Israël in the Eichmann case (see section
VI supra) can also be made in this context. Moreover,Armenia could offer Armenian citizenship to all Armenians in the diaspora, as Russia has done with respect toformer citizens of the Soviet Union residing in the Baltic
States and other former republics of the Soviet Union.
The most recent international prosecutions with regard
to the crime of genocide have been conducted by theInternational Criminal Tribunal for Rwanda and by the
1-Dickran Kouymjian, «La confiscation des biens et la destruction des monuments
historiques comme manifestations du processus génocidaire» in L’Actualité duGénocide des arméniens, op. cit., p. 227.

93

International Criminal Tribunal for the Former Yugoslavia. The indictments against Radovan Karadzic and Ratko
Mladic charge the accused not only with war crimes andcrimes against humanity, but also with genocide. In the
ICTY Judgment on General Radislav Krstic, the Tribunal
found that genocide had been committed in the context
of the massacre of Srebenica (Prosecutor v. Krstic, IT-9833-T, judgment of 2 August 2001).
In the ICJ judgment in Bosnia and Herzegovina v. Serbia(case 91, Judgment of 26 February 2007), the International Court of Justice confirmed that genocide had
been committed in Srebenica. If a single massacre satisfies the criterion of Article 2 of the Genocide Convention,certainly many of the Ottoman massacres against the
Armenian population before and during the First World
War would qualify as genocide. But, far more than theindividual massacres, it was the policy of exclusion, deportation and extermination that constituted the crimeof genocide against the Armenians. By contrast, in thecontext of the armed conflict in the former Yugoslavia,
the United Nations General Assembly in its Resolution
No. 47/121 of 18 December 1992 declared that the Serbianpolicy of “ethnic cleansing” constituted “a form of genocide”. This resolution was confirmed in GA Resolutions
48/143, 49/205, 50/192, 51/115, etc. Thus, the concept of“genocide” as currently interpreted and understood by
the International Court of Justice and by the United Nations General Assembly is clearly applicable in the context of the Armenian genocide 1915-23.

94

Besides the possibility of seizing the ICJ by way of acontentious case based on the Genocide Convention, it
would further be possible to engage the ICJ jurisdiction
by way of a request for an advisory opinion. Pursuant toarticle 96 of the UN Charter, the General Assembly or the
Security Council could ask the International Court of Justice to formulate an advisory opinion on the legal question of the “Application of the 1948 Convention on thePrevention and Punishment of the Crime of Genocide to
the Armenian Massacres of 1915-1923” on the legal question: “Legal consequences of the continued possessionof Armenian lands, properties and cultural heritage by
the Turkish State”, and/or on the legal question: “State
Responsibility of Turkey to make reparation to the descendants of the survivors of the Armenian Genocide”.
Whereas a request for an advisory opinion would presumably not be forthcoming from the Security Council,
it would appear entirely feasible to obtain a majority forsuch a request in the General Assembly.
Yet another important issue that the ICJ could pronounce
itself on would be on the erga omnes obligation of States
not to recognize the consequences of acts that violate
international law, in particular the direct and indirectconsequences of genocide. In this context it is pertinent
to cite article 10 of the Al Khasawneh Declaration on theillegality of forced population transfers (1997):“Where acts or omissions prohibited in the present Declaration are committed, the international community as awhole and individual States, are under an obligation: (a)95not to recognize as legal the situation created by such
acts; (b) in ongoing situations, to ensure the immediate
cessation of the act and the reversal of the harmful consequences; (c) not to render aid, assistance or support,
financial or otherwise, to the State which has committed
or is committing such act in the maintaining or strengthening of the situation created by such act.”1
According to this doctrine, the world community has an
obligation not to recognize the financial and territorialconsequences of the genocide perpetrated by the Ottoman Empire and is entitled to demand that the cultural heritage of the Armenian people be returned to the
Armenian people and to the Armenian Patriarchate, andthat adequate compensation be paid to the descendantsof the victims of the genocide. For this purpose an International Fund could be established, which could be
administered by the Office of the United Nations HighCommissioner for Human Rights, which has ample experience in the administration of Funds for victims of grossviolations of human rights.
1-E/CN.4/Sub.2/1997/23, Annex II. In theory the doctrine of the erga omnes obligationof non-recognition has been gaining acceptance for decades, but the concrete application of this doctrine leaves a lot to be desired. See Article 41 of the Report of theInternational Law Commission on Responsibility of States for Internationally Wrongful
Acts, adopted in 2001, which provides in paragraph 2 “No State shall recognize as
lawful a situation created by a serious breach within the meaning of article 40, nor
render aid or assistance in maintaining that situation.” The Commission’s report andcommentary are reproduced in the annex to General Assembly resolution 56/83 of 12
December 2001 A/56/49 (Vol. I). See also Stefan Talmon “The Duty not to ‘Recognize
as Lawful’ a Situation Created by the Illegal Use of Force or other Serious Breaches ofa Jus Cogens Obligation: An Obligation without Real Substance?”
Chapter VI, in Jean-Marc Thouvenin and Christian Tomuschat (eds.), The Fundamental Rules of the International Legal Order: Jus Cogens and Obligations Erga Omnes.
Martinus Nijhoff Publishers, Leiden, 2006, pp. 99-125.

96

An advisory opinion from the International Court of Justice could also contribute to the general recognition of
the right to truth as a human right, inseparable from human dignity and from everyone’s right to his/her culture
and identity.1 As Voltaire aptly wrote: We owe respect
to the living; to the dead we owe only truth.2

1-On 20 April 2005 the United Nations Commission on Human Rights adopted a
relevant resolution entitled “The Right to Truth”, UN Doc. E/CN.4/2005/66. See also
Yasmin Naqvi, “The right to the truth in international law: fact or fiction?” International
Review of the Red Cross, volume 88, June 2006, pp. 245-273.
2-François Marie Arouet (1694-1778), dit Voltaire, in his play Œdipe: “On doit deségards aux vivants; on ne doit aux morts que la vérité”.

97

SELECTED BIBLIOGRAPHY• Rouben Adalian (ed.), The Armenian Genocide in US Archives,
1915-1918, Alexandria-Virginia, Chadwick-Healey, 1991.
• Taner Akçam, A Shameful Act: The Armenian Genocide and theQuestion of Turkish Responsibility, Metropolitan Books, New York2006.
• Taner Akçam, From Empire to Republic: Turkish Nationalism and the
Armenian Genocide, Zed Books, London 2004.
• Peter Balakian, The Burning Tigris, Harper Collins, New York 2003.
• James L. Barton (Comp.), “Turkish atrocities” : Statements ofAmerican Missionaries on the Destruction of Christian Communities
in Ottoman Turkey, 1915-1917, éd. par A. Sarafian, Gomidas Institute, Ann Arbor, 1998.
• James Bryce and Arnold Toynbee, The Treatment of Armenians in
the Ottoman Empire 1915-1916, Taderon Press, Reading 2000.
• Michel Chirinian (ed.), Secours au Proche-Orient en Faveur desRéfugiés Arméniens (1922), introduction by Yves Ternon, Gérard
Dedeyan, Edisud, Aix-en-Provence, France 1981.
• Comité de défense de la cause arménienne, L’actualité du Génocide
des Arméniens, Edipol, Paris 1999.
• Vahakn N. Dadrian, The History of the Armenian Genocide, Berham
Books, Providence/Oxford 1995.
• G.H. Guarch, El árbol armenio, Ediciones del Bronce, Barcelona
2002.
• Kâmuran Gürün, The Armenian File: The Myth of Innocence Exposed,
K. Rustem Press, Nicosia 1985.
• Richard Hovannisian, Remembrance and Denial, Wayne State University Press, Detroit 1998.
• Richard Hovanissian, The Armenian Genocide: History, Politics, Ethics, New York 1992.
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diplomatischer Aktenstücke, Berlin-Potsdam 1919.

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• Guenter Lewy, The Armenian Massacres in Ottoman Turkey: A Disputed Genocide. University of Utah Press 2005.
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978-0-9564086-0-0, London 2009.
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2nd edition, University of La Verne Press, La Verne, CA 1988.
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des Arméniens, Champs Flammarion, Paris 1984.
• Steven Vardy and Hunt Tooley (eds.), Ethnic Cleansing in TwentiethCentury Europe, Columbia University Press, New York 2003.
• Ben Whittaker, Revised and updated report on the Question of theprevention and punishment of the crime of Genocide. UN Doc. E/
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and the International Criminal Tribunal for the Former Yugoslavia,
Criminal Law Forum, No. 6 (1995) pp. 257-314.
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100

The 1915 Armenian Genocide in the Ottoman Empire

101

The Evacuation of 5.000 orphans from Kharpert/Harput orphanages
to Syria/Lebanon, as part of the evacuation of 22.000 orphans fromthe Near East Relief orphanages in interior Turkey in 1922

Starvation to death

102

103

Armenian refugees in tents provided by the Near East Relief

The barren lands of the Aykesdan residential quarter in the city of Van

104

105

© Alfred de Zayas, J.D. (Harvard), Dr. phil. (Göttingen)
Professor of international law, Geneva School of Diplomacy
Member New York, Florida Bar, retired
Former Secretary of the UN Human Rights Committee, retired
Former Chief of Petitions at the Office of the UN HighCommissioner for Human Rights, retired

www.alfreddezayas.com

PHOTO CREDITS• The back cover photo is provided by Hayk Demoyan, Director of the
Genocide-Museum in Yerevan.
• The map on page 100 is reproduced from the Armenian National
Institute (ANI) (Washington, D.C.) and the Nubarian Library (Paris).
© ANI, English Edition Copyright 1998.
• The photos on page 102 and the first photo on page 104 are reproduced
from http://www.genocide-museum.am/eng/eye_witnesses4.php• The second photo on page 104 is provided by Armen Aroyan.

Design & Printing

Chirak Printing Press