06 April 2017

3627) Legislating Genocide by Michael M. Gunter

Legislating Genocide
Michael M. Gunter
Tennessee Technological University

Why in recent decades have various Armenian groups made strenuous attempts to have numerous legislatures and various other bodies around the world pass resolutions recognizing the Armenian massacres during World War I as genocide perpetrated by the Ottoman Empire? (1) Although most Armenians feel very strongly about these events, one might query why they have gone to such lengths to, in effect, legislate their version of history after so many years. In the main of course, the Armenians and their supporters have been reduced to using almost any tactic possible given their earlier failure to implement their policies by other means including force. Armenian terrorism, for example, was employed as recently as the 1970s and 1980s in a failed, short-sighted and violent attempt to implement their policies (2). In others words genocide resolutions are being used to try to further the Armenian cause: recognition of what they call genocide, reparations, and revenge—the three Rs (3). Another reason to have these events recognized as genocide is that it is the only bond or glue strong enough to bind the otherwise territorially, linguistically and religiously diverse Armenian Diaspora communities together (4). . .

The history of these Armenian attempts to legislate genocide in the United States has been one of Congress’s willingness to support Armenian contentions due to its responding to its members Armenian-American constituents as well as its piece-meal view towards US foreign policy. However, the President hesitates to go along due to his overall view towards furthering US foreign policy interests and thus quashes these Congressional attempts to legislate genocide.

In addition, those who oppose legislating genocide believe that the proper position for the United States Congress to take on this and related issues, is to encourage full and open access to all historical archives, and not to make charges on historical events before they are fully understood. The history of the Ottoman-Armenians is much debated among Ottoman scholars, many of whom do not agree with the historical assumptions embodied in attempts to legislate one side or the other into law, a situation which would be analogous to a bill of attainder which is specifically prohibited by the U.S. Constitution. Legislation based on historically questionable assumptions, can only damage the cause of honest historical enquiry, and hurt the credibility of the American legislative process.

We all deeply regret the tragic suffering of the Armenian people that occurred in 1915. However, legislating it as genocide is not the right response to these historic mass killings. Indeed to legislate it as genocide not only constitutes a bill of attainder (a legislative act which punishes somebody without a fair judicial trial) and is specifically prohibited by Article 1, Section 9 of the US Constitution, but also is a violation of due process of law, and thus specifically prohibited by the Fifth and Fourteenth Amendments to the U.S. Constitution.

If Turkey is to be accused of a crime, due process of law demands its right to a fair judicial trial that includes legally valid evidence submitted in accordance with a legally valid law, and the right to call witnesses as well as a fair impartial judge, not accusations using an ex post facto law, hearsay evidence, and a kangaroo court proceeding whose conclusion is already determined against Turkey in advance!

Furthermore, for the United States to violate due process of law by violating all accepted legal procedures as well as apply a bill of attainder and ex post fact law against Turkey, would be an egregious insult to its NATO ally. Thus, misguided attempts to legislate genocide would do great harm to relations with a key ally in NATO, and thus to U.S. foreign policy.

Zbigniew Brzezinski, the national security adviser in the Carter administration, has declared sarcastically on CNN: “As far as a genocide resolution is concerned, I never realized that the House of Representatives was some sort of an academy of learning that passes judgment on historical events. History’s full of terrible crimes, and there is no doubt that many Armenians were massacred in World War I. But whether the House of Representatives should be passing resolutions whether that should be classified as genocide or a huge massacre is I don’t think any of its business. It has nothing to do with passing laws, [and] how to run the United States. That’s where the constitution created the House of Representatives for” (5). Even former US president Jimmy Carter (who so often takes what some might characterize as overly idealistic or even naïve human-rights approaches to complicated political-historical issues) in this case stated that “I think if I was in Congress I would not vote for such genocide resolutions” (6).

Nevertheless, some Armenian supporters have replied that anyone who denied their position was a party to genocide and became an agent of the Turkish state (7). Indeed, one pro-Armenian supporter went so far as to argue that supporting the Turkish position constituted hate speech and should be made illegal in the United States (8). Ironically, the Armenian attempt to foreclose debate about what happened to them in World War I amounts to the very prevention of scholarly analysis for which they denounce Turkey!

The United Kingdom has also declined to attempt a contemporary hand at legislating accusations of Armenian genocide into history: “Neither this Government nor previous British Governments have judged that the evidence is sufficiently unequivocal to persuade us that these events should be categorized as genocide as de-fined by the 1948 UN Convention on Genocide” (9). Bulgaria, Denmark, Sweden, and Israel, among others, have also explicitly rejected terming the events of 1915 genocide, and agree with Turkey that the question should be left to the historians to settle. For example, Shimon Peres, then foreign minister and later president of Israel, declared in 2001: “We reject attempts to create a similarity between the Holocaust and the Armenian allegations. Nothing similar to the Holocaust occurred. It is a tragedy what the Armenians went through but not a genocide” (10).

Thus, both objective scholars and U.S. constitutionally guaranteed due process of law mandate that attempts to legislate genocide have no proper place in this ancient debate concerning the Armenian issue.


(1) For recent scholarly analyses of the Armenian tragedy from the Turkish point of view, see Justin McCarthy, Turks and Armenians: Nationalism and Conflict in the Ottoman Empire (Madison WI: Turko- Tatar Press, 2015); Edward J. Erickson, Ottomans and Armenians: A Study in Counterinsurgency (New York: Palgrave Macmillan, 2013); Kemal Cicek, The Great War and the Forced Migration of Armenians (Belfast, UK: Belfast Magazine, 2013); and M. Hakan Yavuz, “Contours of Scholarship on Armenian- Turkish Relations,” Middle East Critique 20 (Fall 2011), pp. 231-251.

The article by Professor Yavuz was part of a special issue he edited of the Middle East Critique devoted entirely to “New Scholarship on the Relocation of Ottoman Armenians from Eastern Anatolia in 1915-16.”

(2) For background, see Michael M. Gunter, “Pursuing the Just Cause of Their People”: A Study of Contemporary Armenian Terrorism (New York: Greenwood Press, 1986); and the recent work of Professor Christopher Gunn, which will soon be published.

(3) See, for example, the Armenian nationalist Dashnak newspaper, The Armenian Weekly , December 10, 1983, p. 3.

(4) Thomas de Waal, Great Catastrophe: Armenians and Turks in the Shadow of Genocide (Oxford: Oxford University Press, 2015), pp. 172-177. Also see Michael M. Gunter, Armenian History and the Question of Genocide (New York: Palgrave Macmillan, 2011), pp. 75-97.

(5) Cited during CNN, “Late Edition” with Wolf Blitzer, aired October 14, 2007.

(6) Cited in Brian Knowlton, “U.S. House Speaker Vows Debate on Armenian Genocide Resolution,” International Herald Tribune, October 14, 2007.

(7) See Yves Ternon, “Freedom and Responsibility of the Historian: The ‘Lewis’ Affair,” in Remembrance and Denial: The Case of the Armenian Genocide, ed. Richard Hovannisian (Detroit: Wayne State University Press, 1999), pp. 240 and 242.

(8) Henry C. Theriault, “Denial and Free Speech: The Case of the Armenian Genocide,” in Looking Backward, Moving Forward: Confronting the Armenian Genocide, ed. Richard G. Hovannisian (New Brunswick, NJ: Transaction, 2003), p. 231-261.

(9) Cited in www.number10.gov.uk/Page 13999, as cited in International Crisis Group, “Turkey and Armenia: Opening Minds, Opening Borders,” Report No. 199 (Istanbul: International Crisis Group, April 14, 2009), p. 15 n. 127.

(10) Cited by Turkish Daily News, April 10, 2001, as cited in ibid., p.15 n.128..


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