2015 : Focus on reparations for the Armenian Genocide

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Created on Thursday, 12 February 2015 02:55

Armenian genocide : recognition and reparations Standpoint of Diaspora   2015: Focus on reparations for the Armenian Genocide Raffi Kalfayan

Raffi Kalfayan Lawyer, former Secretary General of the International Federation for Human Rights (FIDH)

2015 is a year of opportunities for the Armenian cause, but also that of many dangers for the domestic and foreign policies of Armenia. At a time when taking steps on the front of the Armenian cause require a trans-national Armenian consensus, the Diaspora’s high expectations are rather dashed by the absence of programming and lack of visibility of the actions undertaken whether by the Armenian State, the main political organizations in the Diaspora, but also by the united Genocide Centennial Committee. This is no surprise, though. For the last two years now, voices have been rising throughout the Diaspora to blame the absence of leadership, the inertia and the stalling of goodwill efforts.

Activists being averse to inaction, various well-meaning initiatives have multiplied, supported by benefactors whose financing is neither fortuitous nor devoid of political intentions. These activities are mostly centred on the so-called dialogue and reconciliation between the Turkish and Armenian civil societies – as if everyone needed those programmes to talk to each other. Other more daring endeavours, and even more vulnerable to manipulations, are led by groups supposedly representing Western Armenia trying to directly negotiate with Turkish authorities. Finally, there is a flurry of statements from organizations or individuals in the Diaspora and Armenia,  which for the most part appear just as politically unrealistic as they are unfounded in law.

Without going into too much detail, it is useful to recall some legal basics. Firstly, the crimes committed against the Armenian people cannot be tried as a criminal case anymore since the organizers, perpetrators or accomplices of the massacres are all dead, and so are their victims and the witnesses. Besides, the Turkish Court Martials of 1919-20 have already tried and convicted the main leaders of the Committee of Union and Progress as well as former government officials for the mass murders of Armenian populations in the Ottoman Empire. Secondly, the International Court of Justice is an international State court which only member States, the United Nations General Assembly or the Security Council can appeal to. It therefore raises the double question: Was the Armenian Genocide of 1915-16 a conflict between the Turkish and the Armenian States?  Let us recall that the latter did not exist at the time. And assuming that Armenia is accepted as a valid legal entity, and that its interest in taking legal action is recognized as well-founded, which pleas would that nation put forward? Let us not forget that any proceedings require that the adverse State accept the principle and the terms of the submission to the Court, unless it is imposed by the United Nations or the Security Council. In any case, this procedure implies that the international responsibility of the Turkish-Ottoman State be established in the massacres and deportations committed in 1915-16 – an element which will be disputed by Turkey, but is supported by sufficient existing evidence.

Besides, we can observe that the actions towards recognition of the Armenian genocide by foreign governments or parliaments have receded in the last decade – partly as a result of the appeasing diplomatic language of Turkey and of the Armenian-Turkish protocols of October 2009. However, as the 2015 Centennial is drawing near, we can see a new burst of activity, although mostly on forums without great strategic clout, and this is bound to be an ephemeral and illusory phenomenon for two main reasons.

The first has to do with the fact that Turkey keeps refusing to acknowledge and fighting with every powerful financial and diplomatic means any legal recognition of its crimes if characterized as genocide or crime against humanity. It would rather speak of the suffering experienced by the Armenian people and the inhuman character of the displacements of populations during the troubled period of World War I. By admitting de facto to the qualification and to the guilt of “war crimes” - which were already legally constituted in 1915, although not extensively codified – Turkey thus reserves itself the means to bring a counterclaim in reparation for losses incurred by Turkish Muslim populations in Eastern Anatolia at the hands of Armenian armed gangs or Armenian legions supported by the Russian army. Those real events are of course not relevant to the 1915-16 period, but placed within the larger framework of the 1914-18 World War, they would nevertheless constitute a sufficient motive to support their claim.

The second reason has to do with the fact that, today more than ever, Turkey remains a key pillar of international diplomacy, in particular in the Near and Middle East. To that extent, the United States, Israel and the United Kingdom (see the Foreign Office note of 9 December 2014 ) on the one part, and Russia on the other part, who compete for diplomatic dominance in that area, mostly maintain a strategic partnership with Turkey. There is thus little hope for those countries to modify their line of conduct or engage in actions themselves, or even support those of Armenia in favour of political recognition of the genocide. 

This de facto impunity gives Turkey the opportunity to strengthen its enterprise of denial of the genocide and dissemination of its own falsified version of history. The sudden emergence of Azerbaijan on that scene has also reinforced the damaging capacity of Turkey, although the hateful, racist and extremist character of the Azerbaijani policy towards Armenians is a growing embarrassment to Turkey.

The political forces in the Diaspora have more or less recognized that the process of recognition of the Armenian genocide in the world is mired. There is a blatant imbalance of government and financial means between the sides. That recognition is nevertheless largely accepted worldwide by public opinion and academic authorities, and 2015 will be its climactic affirmation. But the problem will remain whole after 2015 – and to a certain extent even in 2015, as Turkey is doing everything in its power to thwart the media and political impact of the commemorations of 1915-16 massacres and deportations. Its efforts have started very early.

Dialogue and reconciliation: a win-win approach for Turkey

This strategy started in 2004, when Turkey engaged in its seduction venture of the European Union, having grasped its great strategic potency. The United States and the E.U. being directly interested in renewed diplomatic ties and rapprochement between the civil societies of Turkey and Armenia, brought in the financing. For Westerners, this strategy aims at marginalizing supposed extremists in the Diaspora in order to favour direct dialogue with a weakened Armenia. For the “ONG business” hungry for financial subsidies, it is a direct and immediate windfall – with around $2 million given to Armenian and Turkish NGOs for 2015 alone. And Turkey collects the political dividend.

Indeed, this process has been distracting the Armenian side from the political problems at the root of the disagreement. Besides, these initiatives only touch upon a tiny fringe of the Turkish people and, given the demographic and economic dynamism of Turkey, a country turned towards the future rather than the past, this further undermines the hypothetical effects expected by Armenians.

Programmes of dialogue or intercultural and intercommunity exchanges are financed by the European Union as well as public or private American aid, but also – and this is more recent – by private Armenian and Turkish foundations. They would not exist without that financial support. Lately, we could read some self-satisfied statements, including by sincere partisans of the Armenian cause, although the impact of these initiatives (“outreach”) has never been actually demonstrated or measured. In this respect, it would be good not to cover-up the revival of revisionist propaganda and political-judicial activism of Turkish para-statal groups. Let us recall that such political-judicial activism manifested itself in France through the prosecution of militants of the Armenian cause or members of parliament friendly with it. In the United States, where the watchdogs of the official Turkish thesis about the Armenian genocide are institutionally organized, it is observed almost systematically in both the political and judicial fields of public life and, paradoxically, universities are paralyzed. And the attack goes beyond the sole debate about the genocide since scribblers sold to the Turkish government picture Armenians as anti-Semitic in the American and Israeli press.

There has been another side effect to those programmatic dialogue platforms: they have let Turkey collect information and useful thoughts to feed their strategic analyses, and also helped identify some Armenians in the Diaspora whom Turkey has decided to invite more officially to a more direct form of cooperation (see Harut Sassounian’s column of 10^th April 2012) The phenomenon started in the United States and gained Europe only later, but it is now in full swing.

Finally, the diplomatic action of Turkey clothed itself in a rhetoric of appeasement and openness, recalling the memory of the “idyllic” period of cohabitation within the Ottoman Empire, the expression of “shared grief,” and even the acknowledgement of the inhuman character of Armenian people’s displacements. This scenario is not new (it has been going on for at least 8 years), but its progressive staging conceals a very real threat – that of a minimal public and official recognition, which that has been looming for a while, a set of excuses for the hardships endured by the Armenian people during WWI accompanied by the restitution of former properties and buildings of Armenian religious institutions. In 2011, a governmental decree already solved the case of properties and possessions belonging to the foundations of religious and cultural Armenian minorities (or Vakfi, which had been created by imperial edicts), demanding restitution of possessions that entered their capital between 1936 and 2007 and were confiscated after 1974.

Turkey could easily convince foreign governments that these excuses and restitutions constitute an honourable compromise, sufficient to provide justice, whereas the Armenian nation wants to obtain more than that and would thus be placed in a tough spot. To avoid such a conclusion and prevent Turkey from defining the future alone, a forceful strategy is necessary on the Armenian side. It must anticipate and mobilize, and be carried by a pan-Armenian consensus. 2015 offers a great window of political opportunities to move precisely in that direction and away from reactive and defensive politics. However, the window is narrow, and should not be missed. It gives a chance to move the political and diplomatic dispute to a new terrain, and remind great powers – the United States, France, the UK, Russia, and above all Germany – of their debts and obligations. The Diaspora should be used as the spearhead of this new policy. Armenia itself is diplomatically tied up both by the Nagorno-Karabakh conflict (with Turkey conditioning the opening of its border or the signing of protocols with Armenia to the evacuation of some territories) and by its total dependence on Russia – a domineering partner who signed a strategic regional partnership with Turkey. 

Whether it fell asleep or got tired of the deadlocks of Armenia’s domestic and foreign policies, the Diaspora is now looking for some broad action to satisfy its permanent quest for justice, opening new militant and political perspectives – an opportunity to mobilize every family and get the political and diplomatic forces of Armenia and the Diaspora to work intelligently in close coordination.

The launch of proceedings to obtain reparations would be the political and legal action meeting such expectations and criteria. It would provide a way out of the current double impasse – on the one hand, the improbable official political recognition of the genocide by Turkey, and on the other, the difficulty on strict legal grounds to qualify the massacres and atrocities of 1915 as genocide.

The reparations are the “new Frontier” of the Armenian cause¹

This essential strategic approach would launch judicial-political actions on several fronts aiming to obtain reparations. It would be unwise to publicly present and divulge to the adverse party its underlying legal goals, means and arguments. However, several preconceived and totally false ideas on the question should be exposed. 

The first error is to believe that the official recognition by Turkey of the characterized crime of genocide is a prerequisite to initiate requests for financial and moral reparations for the crimes committed by the Turkish-Ottoman State in 1915-16 and damages caused to the properties of the Armenian nation through spoliation, destruction and confiscation. It is simply not the case in public international law. The State crime is established and can be proven, and whatever its qualification, it opens the right to reparations for its victims – or rather, a hundred years later, to the victims’ heirs. The second false idea is that Turkey might be more afraid of territorial claims than reparation claims. Armenians should not fool themselves: Armenia is a micro-State already mired in its military conflict with Azerbaijan and faced with growing inner discontent. Does it have any political and military power to support such claims? And also Armenia would find no allies in that enterprise. 

However, there are solutions, and a legal-political plan is even ready, including in its operational detail. Study groups with complementary approaches – such as the Armenian Genocide Reparations Study Group (AGRSG) and Armenian Genocide International Reparation (AGIR) in the Diaspora, as well as the Legal studies group coordinated by the President of the Constitutional Court of Armenia – have worked on the problem. In 2012, Catholicos Aram I has also organized a large conference on the issue in Beirut.

The strategy must rest upon solid and sensible legal bases, and not count upon the support of other countries. It must also be devised so as not to harm either the land claims of Armenia (the State being the only legal body entitled to act in this respect through international law), nor the continued efforts towards political recognition of the genocide by Turkey or other countries. As mentioned above, that qualifier is not a prerequisite to ask for reparations. Besides, the concept of reparation is very large, comprising material and moral aspects. The moral aspects include, in particular, recognition of guilt, asking for forgiveness, stopping denial of facts, and an appropriate educational policy.

Much more binding and worrying for the Turkish State, however, are the financial stakes involved. In order to grasp their extent, one can just look at the indemnities obtained from Germany by the central organization set up by Jewish Holocaust survivors, the Claims Conference: 60 billion dollars – plus the outcome of direct and parallel negotiation between the State of Israel and Germany, which brought another 3 billion deutschmarks in 1952 as compensation for victims without heirs. Claims for indemnification are still going on today – for instance the recent agreement between the French railways and the U.S. government. Once the process gets going, the range of possible requests defies the imagination.

A study published by the Armenian Genocide Reparations Study Group has tried to define and measure potential reparations in all their dimensions in the case of the Armenian genocide, making a first estimate of damages by updating the amounts reached at the preparatory conferences of the Sèvres Treaty (1920), and came up with an amount close to 100 billion dollars. More modern methods of calculation would refine that amount. Such figures are very much on the minds of Turkish leaders, and also of Turkish intellectuals close to Armenians, who quickly brush off the issue when it is mentioned. The strategy must press where it hurts. It means proceeding in a thought-out, structured way. In law, nothing is simple, whether in the meaning of words or the interaction between principles, particularly when there is a mix of local, regional and international law, as is the case here. What is more, the written law is dependent on the interpretation of the men in charge of rendering justice, with all the uncertainties and mistakes which may affect their judgement. International law is also particularly connected to international relations. The appeals heard in the United States in the Movsesian and other cases have shown the limits of the Federal law when diplomacy gets involved.

Therefore, the question is: if everything is ready to present the case and considering what is at stake, why hasn’t there been any political initiative or decision announced?

The political, economic and social situation of Armenia has reached a state of unparalleled desolation: the war with the Azerbaijani neighbour has started again in the border area with the rapprochement between Azerbaijan, Russia and Turkey being a cause for worry; besides, entering the Eurasian economic Union on humiliating terms under Russia’s pressure has upset the diplomatic balance between geopolitical blocs but also led to a threat of economic and monetary chaos, Russia pulling Armenia into its own downward spiral. The economic and social discontent in the country, generated by inflation, drives growing numbers of people to emigrate. To top it all, there is a new wave of repression of political rights and liberties. In imitation of the Russian model, physical attacks of activists and opponents and arrests of demonstrators have started again and Armenia is preparing liberticidal laws meant to control NGO’s financial sources and the journalists’ information sources. It is thus in such a context that a national consensus must be rallied to elaborate a judicial-political plan of action. Beyond the reflection carried out at the plenary assembly of the Genocide Centennial Committee on January 29, 2015,  the possible presence of high-level Turkish officials at the 24^th April commemorations in Yerevan make it even more pressing to officially announce the launch of a claims for reparations campaign.

This article was first published in the review Les Nouvelles d’Arménie on 19 December 2014.