15 February 2008

2338) Refuting The Genocide Claim

The Federal Court of Switzerland has approved the resolution of the Lausanne Court, which accused the Chairman of the Turkish Workers Party for his statements indicating that “the Armenian genocide is an international lie”. Apparently, under the current circumstances, Perinçek, who has exhausted all the domestic legal options, would carry his complaint to the European Human Rights Court basing his situation to the 10th article of the European Human Rights Convention, which is the right for Freedom of Speech.

Perinçek should both be congratulated and supported at his attempt for struggling. Because, if he manages to succeed at the legal process he has started, his attempt will lead the countries, which give lessons to Turkey on freedom of speech, to confront the fact that they are violating this freedom themselves.

The government of Switzerland has attempted to diminish the effect of the law scandal, which was caused by the Federal Court, with a statement. The government exposed indirectly that their thoughts on the 1915 incidents do not comply with the resolution of the Federal Court, and indicated that it i supports the offer that was put forward by Turkey, for founding mutual history commission, which will be consisted of Turkish-Armenian scientists.

In spite of all these facts, the decision by the Switzerland Court has set an example, which opened a way for Armenia and the Diaspora Armenians for carrying the issue also to the courts of other European countries and gaining a legal identity to their genocide claim. Considering the legal bases of the resolution, this danger is evidently exposed. As a matter of fact, the first legal basis of the resolution is the resolution which was adopted on the Armenian genocide on 16 December 2003 by the Switzerland Parliament (National Committee). The second one is the judicial decision, which suggests that the ones, who deny genocide or a crime that is defined at the 261st article of the Switzerland Penalty Law, would be punished for three years or fined.

Now, let’s see at which point a question arises for Turkey? The parliaments of several European countries like Austria, France and Italy have adopted a judicial decision, which acknowledges the Armenian genocide. The penalty laws of these countries have also the same content with the 261st article of the Switzerland Penalty Law. Under these circumstances, it is possible for the representatives of the Armenian Diaspora in the European countries to lead to adopt court decisions which approve that an Armenian genocide had occurred.

An extremely serious danger on that issue arises from “The Framework Resolution for Struggling against Racism and Xenophobia” which was adopted by EU Justice and the Ministers of Internal Affairs Committee, on 19 April 2007. The text of the framework resolution provides the courts of the EU countries an authorization for deciding whether an act is genocide or not. And also, it will be possible to convict the ones, who deny that the act in question is genocide, at these courts from one to three years of imprisonment. It is obligatory for the member states to transfer the text of the framework resolutions into their domestic current law, in two years time starting from the date it is put into effect.

At this phase, if a person from the EU member countries states that an Armenian genocide have not occurred, then he will be accused with denial and be convicted. Apparently, it seems that the EU framework resolution will caused Turkey to completely break off from EU, in other words, Europe. Under these circumstances the time has come for Turkey to resort to the legal procedure, where Turkey has a master card to refute the Armenian genocide claim.
Genocide is not an expression that can be used arbitrary. It is a crime, which has been defined by an international law instrument. The afore-mentioned instrument is the “Convention for Prevention and Punishment of the Genocide” which was constituted as a result of an intensive study of the member states of the United Nations that lasted two years and adopted in1948 at the General Assembly.

Presently, this convention, which gained the "Jus cojens" (The command rule of the international law), in other words, something that should be done for all the countries, defines the crime of genocide clearly, the physical and moral elements for proving the crime and indicates the courts that are officially authorized for the genocide cases.

Can “Convention for Prevention and Punishment of the Genocide” be applied to 1915 incidents? Can the Ottoman Empire be judged on this issue? No…it cannot be judged! The legitimacy principle, which is one of the fundamental principles of the international punishment law, doesn’t allow this. As it is known, the legitimacy principle, which is a fundamental concept for both the national and the international punishment law, is based upon the comprehension of “There cannot be a crime without a law and a law without a crime” and does not allow the laws to be implemented towards the past. Briefly, the genocide crime cannot be implemented towards the past, to the 1915 Armenian incidents, as it was defined in the Convention for Prevention and Punishment of the Genocide in 1948.

All right, let’s suppose that the Convention for Prevention and Punishment of the Genocide can be implemented towards the past for a moment. What kind of a judgment would the authorized court give? The verdict that was presented by the International Court of Justice on the Serbia case on 26 February 2007, has a special significance regarding the genocide responsibility of the countries. According to the verdict; if the country in question had demonstrated the utmost effort that she possesses for preventing the occurrence of genocide, nevertheless, could not be successful on preventing it, the country in question cannot be hold responsible for the incidents.

On the other hand, it is obligatory to prove with undisputable evidences that the crime was committed with a special purpose (dolus specialis) and the subject had not implemented the precautions the utmost effort and attention (due diligence). These points put forward definitely that the Ottoman Empire cannot be accused with committing genocide.

Moreover, both the accusation of the individuals and the accusation of the countries are only done by a decision of a court. And according to the Convention for Prevention and Punishment of the Genocide, the authorized courts are an authorized court of the country, where the crime is committed, or an international punishment court, where both sides would compromise or International Court of Justice. The authorized courts can give a verdict for genocide only after they are convinced on the material and moral elements of genocide have come into existence and they determine the undisputable existence of the special purpose.

Under these circumstances, the Ottoman Empire and its successor Turkish Republic is accused, without a court verdict, and international organizations like national parliaments and EU Parliament adopted resolutions, which accused Turkey. In another words, Turkey is facing an exact execution without a judgment!

As can be recalled, the French Parliament has set a typical example of the afore-mentioned judgments by adopting a resolution on 29 January 2001, which suggests the 1915 incidents are genocide. In this regard, Turkey should recommend France, in accordance with the 9th article of the Genocide Convention, to present the claims at the afore-mentioned resolution to the International Court of Justice. The following will be demanded: (1) In accordance with the Convention for Prevention and Punishment of the Genocide France Parliament is not authorized to adopt resolutions regarding the Ottoman Empire on genocide and (2) to decide whether the 1915 incidents are genocide in accordance with the second article of the Convention for Prevention and Punishment of the Genocide.

In the light of our enlightenment above, it is certain that the Court would judge that the France Parliament is unauthorized. On the other hand, because of the legitimacy principle, the Court would have to clarify that the Convention for Prevention and Punishment of the Genocide cannot include the past, which means that the 1915 incidents cannot be characterized as genocide.

When the Court takes a decision in this direction, then Armenia’s genocide claim will totally refute. If France avoids resorting to the Court, which is a great possibility, the Armenian thesis, which possesses political and moral superiority against the Turkish thesis, would deal a heavy blow in the international arena.

This development would make it difficult for the Parliaments to adopt genocide resolution on the Armenian incidents and prevent them from convicting our citizens for denying so-called genocide.
Turkey must deal with the Armenian issue with a new perspective, organization and dynamism. The first step for this, should be the attempt against France as we have offered.

Source: Sükrü M.Elekdag(- Cumhuriyet Daily-09.01.2008

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