2174) Genocide – Law And Double Standards by Ergun Kirlikovali

Today, I yield my space to Prof. Andrew Vorking who specializes in international law. Following the article, you will also find some letters by Turkish-Americans on this issue which were published in the U.S. media. I thank those letter writers who acted responsibly.

Andrew VORKINK
Former World Bank Country Manager for Turkey
Professor of International Law at the Bogaziçi University
andrew.vorkink@boun.edu.tr

With all of the passion surrounding the debate on genocide these days, it is easy to lose sight of the important question of what is . . genocide and whether there is an obligation internationally to classify historical events as genocide many years after the fact.

In reality, until near the end of the Second World War, the concept of genocide was unknown in international law and international relations. War crimes were outlawed by various treaties early in the 20th Century. However, the term genocide was not invented until 1943 and was unknown before that date as a legal concept separate from war crimes or crimes against humanity.

With the horrible events of the Holocaust in Europe, action was begun to define the crime of genocide, which led to the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide. However, at both the Nuremburg and Tokyo war crimes tribunals conducted from 1946-48, none of the German and Japanese officials was charged with genocide because the crime did not exist at that time under international law. For example, the massacres committed by Japanese troops were prosecuted as crimes against humanity and war crimes, not as genocide. The same was the case for crimes committed by German officials in Europe.

THE LEGAL BACKGROUND

The 1948 UN Genocide Convention not only defined genocide but made it an international crime for the first time. The key elements of genocide defined in the Convention require two actions: 1) killing or causing harm to a national, ethnical, racial or religious group, and 2) committing such acts with the intent to destroy in whole or part such group as a group. What does this mean in ordinary language? Genocide requires a finding of massive killings or harm to an ethnic, national, religious or racial group and also an intent to destroy that group because it exists as a group. Thus, atrocities committed in war against soldiers, prisoners of war or civilians may be war crimes or crimes against humanity, but they are not genocide unless the massive killings were intended to destroy an ethnic, national, religious or racial group by targeting that group for destruction. Under genocide, killings must thus be connected to an intentional plan to destroy a group because it is an ethnic, national, religious or racial group.

The UN Genocide Convention came into effect in 1951 and has been signed by a majority of the countries of the world. Turkey was one of the very first countries to sign and ratify the Convention, which it did with no reservations to the treaty. The United States signed it in 1948 but took forty years to ratify it. When it did ratify it in 1988, it made major reservations about the Convention that it would not agree to submit genocide claims against it to the International Court of Justice and other tribunals unless it specifically agreed. The United States also declared that killings and other acts in war do not constitute genocide unless there is specific intent to destroy an ethnic, national, religious or racial group. These reservations effectively mean that U.S. officials and soldiers cannot be prosecuted for genocide unless agreed by the U.S. government and the U.S. Congress defines genocide even more strictly than the Genocide Convention.

RETROACTIVE APPLICATION IS NOT PERMITTED

Under international law, retroactive application of criminal laws is not permitted as a general principle. Thus the Genocide Convention applies from when it came into force and not for past acts. Accordingly the Convention cannot be used to bring cases which occurred during World War II, let alone earlier. Further, as the first major case involving a claim that a state committed genocide shows – the case brought by Bosnia against Serbia in the International Court of Justice and decided in February 2007, the burden of proof that there were both killings and intent to destroy a group as a group, is very high. Even with enormous amounts of evidence and testimony in the Bosnia case, the International Court of Justice did not find that the government of Serbia was responsible for genocide in planning or carrying out killings in Bosnia in the 1990's, although the court found it should have done more to stop the killings taking place.

The international legal situation is thus clear – genocide as a crime exists from 1948 onwards, both intent to destroy a group and actual killings must be proven and that proof is hard to establish when a state is accused.

Switching from the legal to the moral issue, is there a case to be made that genocide can be applied to historical acts even if it cannot be legally applied retroactively? In my view, the answer to this is no, not unless the historical situation is so clear and so close to when genocide became a crime that there is no mistaking the acts as qualifying as genocide from a moral view. The Holocaust against the Jews in World War II, which gave rise to the concept of genocide, meets these criteria. But once we start going further back in history, where does it end? This is where double standards become very obvious.

Countries which are willing to classify historical acts in other countries as genocide yet are not willing to recognize acts within their own borders as even crimes - let alone genocide - from a moral and not legal view, are using double standards which undercut their own credibility.

Once we start going backwards from the Holocaust,

… shall we include the atrocities at Nanking by the Japanese against the Chinese as genocide?

… Shall we declare that the killings and starvation of Africans in the Belgian Congo under King Leopold were genocide?

… Shall the United States declare that slavery of blacks and treatment of Native Americans in the United States in the 1800's were genocide?

And who should make such determinations?

Unlike today where there are impartial courts to hear charges of genocide by individuals – such as in the tribunals on Yugoslavia and Rwanda or in the International Criminal Court, or by states in the International Court of Justice, who look at the evidence to decide cases from the past? Surely political bodies cannot be expected to be impartial and decide, nor can they sit as judges of evidence, let alone history.

Should Parliaments of other countries decide what happened in another country?

If the French Parliament passed a resolution declaring that the treatment of Native Americans in the United States was genocide, would such a resolution be acceptable to the U.S. Congress and American people? Absolutely not – the reaction would be outrage and rightfully so.

So when we look back at what happened in 1915, we should not make a judgment because one side lobbies hard in favor of a label and the other lobbies against it or because a declaration would be inconvenient due to current events. Instead we should decide whether it makes sense to use such a politically explosive term as genocide at all for events in history before genocide came into existence.

We cannot do it legally and we should not do it morally.

Ergun KIRLIKOVALI
October 22, 2007
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And there are the published letters by Turkish-Americans :
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1) The following reader letter was published in the Hartford Courant, CT, October 27, 2007

LET INTERNATIONAL COURTS WEIGH GENOCIDE ISSUE

In his Oct. 21 Commentary article ["`Who Speaks Today?'"], John Geragosian claims that "acknowledging the [Armenian] genocide would only benefit Turkey. It would enhance Turkey's prospects for much-desired membership in the European Union." I am appalled that a Democratic state representative would advocate, even with a hint, a coerced confession. Dangling a prize in front of a man to get him to confess a crime that he did not admit to is an action that belongs in the torture chambers.

Turkey has a right and the dignity to refuse any crime it believes its predecessor did not commit. Many scholars agree that what happened in 1915 does not amount to genocide.

Turkey has urged Armenians to apply to the international courts designated to decide genocide claims. Armenians have not done so. What are they waiting for?

There is no direct evidence for the genocide claims of Armenians. The U.S. Congress is neither a place to decide what historians could not nor a courthouse to settle the claims. The decisions of legislative bodies are not recognized by the 1948 U.N. Convention.

There is another thing the Armenians can do for justice: Open their archives to the world to examine. The Turks have already opened theirs.

As the larger picture shows, it is the innocent civilians who are the victims of the political leaders' ambitions and miscalculations. Armed conflicts and wars hurt everybody concerned. It is better not to start them.

Tulay Luciano, Mansfield, CT
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2) The following reader letter was published in the Hartford Courant, CT, October 27, 2007

IT IS HISTORIANS, NOT CONGRESSIONAL LEADERS, WHO SHOULD DECIDE WHAT HAPPENED

John Geragosian's article was sanctimonious and scornful in tone and disrespectful of the facts. If The Courant were to conclusively accuse an individual of murder simply because a consensus of opinion said so, and without regard to factual evidence, the newspaper would greatly endanger its credibility. This would also have an unfair, detrimental effect upon the reputation of the accused.

Genocide is a crime defined by international law. As such, it must be proved beyond a reasonable doubt. War is hell, and history should be left to historians. Turkey proposed the establishment of a joint historical commission with Armenia to research this issue in 2005 to no avail. If the evidence is really there, why not accept this offer? Armenia could even bring its case to an international court.

The Courant's delusional state of denial is bolstered by not accepting that the Turks lost 500,000 lives during World War I at the hands of Armenians, who resorted to terrorism, armed revolt and supreme treason as they joined the invading Russian and French armies.

American historian Guenter Lewy concludes: "The primary intent of the [Ottoman] deportation order was undoubtedly not to eradicate an entire people but to deny support for the Armenian guerrilla bands and to remove Armenians from war zones."

The tragic consequences for Armenian civilians should be remembered. But resettlement is not genocide.

The U.S. House resolution has the potential to irreversibly drive a wedge between the United States and the Republic of Turkey. Since the Korean War, Turkey has been this nation's staunchest ally in the Middle East. We view the resolution as the ultimate insult to a people who have stood by America, sometimes at great cost to their own national interests. The strategic alliance between the United States and Turkey during the Cold War was an integral part of U.S. success. Turkish troops are in Afghanistan supporting the United States, its best ally. Seventy percent of the U.S. air cargo now headed to Iraq goes through bases in Turkey. We sincerely believe that House action on the so-called Armenian genocide will not change the historical facts, but can create undesirable and possibly unintended consequences in international relations among Turkey, the United States and Armenia.

It is historians, not congressional leaders, who should decide what happened in a distant continent so many years ago. We need to build bridges of understanding to lead us toward unity rather than encourage polarization and division with racist resolutions.

Ali Cinar, Director, Fairfield County Turkish American Group, Stamford, CT
And former secretary general of the Federation of Turkish-American Associations in New York.
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3) The following was published in the Noblesville Daily Times newspaper, Hamilton County, Indiana, USA, on 25 October 2007.

TURKISH RESOLUTION DISTORTS HISTORY

This is an appeal from a fellow American to the people of America around the world to oppose the adoption of House Resolution HR-106 pending at the House Committee for Foreign Affairs which may be brought to a vote in the U.S. Congress before Nov. 22, the Thanksgiving Day, under the influence of House Speaker Nancy Pelosi without your knowledge.

The Armenian Resolutions have been adopted or recognized over the past several years by 19 countries and close to 40 states in the USA only because of the heavy pressure of well organized Armenian associations and lobbies around the world, unjustly and defiantly, and without the people really knowing what it is all about. A resolution presented to the U.S. House of representatives, HR 106, if passed, would not only hurt the relations between Turkey and the USA, but also give the wrong message on the U.S.

Congress itself. The Resolution also discriminates against the Turkish-Americans and their friends.

The United States of America is home to over 300 million people of every nationality and has a long historical relation with the secular Republic of Turkey. The long Resolution submitted to the Committee on Foreign Affairs, obviously prepared by Armenian participants, falsifies history and misrepresents the facts.

The Resolution presents the tragic events through forged documents and the Sevres Treaty at the end of First World War, which was never ratified by the Ottoman Government and rejected by the Turkish nation, who fought a war of independence over it under the leadership of Mustafa Kemal Ataturk and replaced it with the Lausanne Treaty in 1923, when the Republic of Turkey was established.

Please take a moment to send your opposition to this non-binding but partisan and deceitful Resolution filled with unfair manipulation of history to your representatives in the Congress and to the Speaker of the House.

Thank you.

Respectfully,

Yuksel Oktay, Washington, NJ