We saw with the Perinçek v. Switzerland case that the Judiciary could produce unpleasant decisions: the sentencing of Perinçek by Swiss jurisdictions led to a totally unexpected reasoning on the part of the European Court of Human Rights questioning the very idea that a consensus existed at international level on the reality of the genocide of Armenians. Of course, that ruling should be put in perspective because the judgement law is not an exact scientific process and its outcome is not intangible: it may be contested, which is actually the case in this dispute. Jurisprudence changes along with historical events, shifts in alliances and new needs in public order, whether national or international. The sources of law thus change together with the practices of states and courts. Therefore, Justice is riddled with uncertainties, and never certain. This is all the more true of international relations where reasons of state prevail over morality and human dignity.

On a political level, we observe the same type of pitfall: the bill voted by the Belgian Parliament in view of recognizing the genocide eventually contained a paragraph which could be interpreted as exonerating the contemporary Turkish state of any obligation towards reparation to Armenians. Upon that occasion, it was rediscovered that the bill voted by the European Parliament on 18^th June 1987 already carried that same paragraph. Whatever satisfaction was expressed by the Armenian state could hardly conceal the sense of failure experienced by the Armenian Diaspora communities.

I – Centenary of the Genocide of Armenians: a mixed outcome and the political impasse confirmed

Year 2015 marked a turning point in the voicing of the Armenian cause. All the political communications in the last 12 months have expressed the need to go beyond the demand for recognition of the genocide and add the claim for reparations for crimes committed as well as damage and material losses caused to the Armenian nation. However, the political finality of and the legal basis for such demands are quite different according to the stakeholders. This is certainly due to an erratic understanding of what this new word “Reparation” stands for in the militant Armenian vocabulary. Although, both in Armenia and in the Diaspora, some research groups have been formed already a few years ago to discuss the themes of reparations for the genocide and restitutions of territories, only one of them – the AGRSG (Armenian Genocide Reparations Study Group) – published conclusions.

In 2015, the media reminiscence of the genocide of Armenians scored points with world public opinions. On the political level, some statements by heads of States – and in particular by Pope Francis –, as well as a few motions voted by national parliaments, enhanced the overall picture. It was darkened though by some setbacks: the Spanish and British parliaments backed away from the use of the word genocide, as did the President of the United States. Israel has not yet presented any bill to its parliament. The Bundestag must still discuss the issue. Belgium has just voted a recognition bill with the unexpected outcome mentioned above. And finally, the Republic of Armenia only managed to gather four state leaders (Russia, France, Serbia, Cyprus) at the official anniversary ceremony.

Turkey has laid low while the wave of interest passed, renewing condolences and compassion, but denying forcefully the reality of the genocide. We can already see a counter-strike move forming in the political and diplomatic areas, which will surely grow stronger in 2016. The Grand Chamber of the European Court of Human Rights will also render its final decision in the Perinçek case in the beginning of 2016. Turkey did make this shameful diversion, for such a powerful state, of celebrating the Gallipoli victory on 24^th April, but mostly it has moved its frontline into the political-strategic field, and more particularly concerning reparations: no doubt that the Belgian bill, which recognizes the genocide while dismissing any responsibility for the contemporary Turkish state, is the result of a negotiated compromise by its diplomatic corps. Wasn’t the turnaround of Emir Kir, the Turkish Belgian representative, who finally endorsed the final draft, a telling sign? Turkey has now grasped the extent of a strategy aiming for reparations, and is already anticipating the blows to come. Meanwhile the Armenian side (State + Diaspora) is getting trapped in a process focused exclusively on the political recognition of the genocide. 

That process is a trap because no less than universal recognition of the genocide of Armenians will be needed for Turkey to be forced to recognize the crime as such. And as we mentioned above, that consensus is far from being reached. In fact, it might never be reached, considering the weight of Turkey among countries of the Organization of Islamic Cooperation. And supposing that it finally were, it would be too late to claim for reparations in any jurisdiction. 

It should be stressed that the time factor is completely overlooked by all the Armenian players defending the cause, convinced as they are that the right for compensations would follow the same rule as crimes against humanity and not be barred by the statute of limitations. Without entering into long-drawn technical intricacies, this is clearly a disputable belief. The time that has elapsed since the end the genocide, namely one hundred years (in 2016), calls for two remarks. The principle of crime without statutory limits is applicable to the prosecution of perpetrators of a crime or to the convictions pronounced against them –  such criminal prosecution being impossible in the present case. Therefore, the right to reparations is not directly concerned by the waiving of statutory limits. Other legal difficulties due to time also come in the way of meeting the criteria required by such a reparation procedure. In civil law, compensation for the damage suffered must be “adequate, effective and fast”. A hundred years after the facts, the courts responsible may hold that they are not competent.

On the whole, we can assert that the Armenian cause is in a political impasse if it keeps to the current positions. On one side are those who want political recognition of the genocide before starting contentious and/or negotiated legal actions claiming for compensation, and on the other is official Turkey who absolutely refuses to use the word and to recognize the intention of extermination and total annihilation of Ottoman Armenians. A paradox is that at the centre of that impasse are the word “genocide” and its use, both on the Turkish side – which is not new – and on the Armenian side – which has rarely been said. The Armenians waging the struggle for recognition have turned it into a dogma, whatever the good or bad reasons to justify that position. The word genocide has thus become a dogma for the two opposing sides.

II – Trends and postures of Armenian organizations

In such a stalemate, what are the current strategic trends?

Some organizations recommend a heightened continuation of the struggle for political recognition of the genocide: this is, in particular, the policy of the ARF (Armenian Revolutionary Federation or Dashnaktsutyun) and the Armenian Republic.

The Armenian State is also playing the game of prestige diplomacy – only with hardly convincing strategic goals, trying to have the Convention for the prevention and repression of the crime of genocide move towards reinforced obligations of prevention.

Other organizations suggest focusing efforts on dialogue and exchanges with the Turkish civil society – to be more present in the Turkish field. They are found in France and North America, and in growing numbers. However, they haven’t yet defined any political leverage, legal instruments or deadline. They hope to achieve recognition through the reconciliation of civil societies, which growing knowledge is supposed to bring about, and have imagined various compensations. Some of them are adequate, but there is no word about what would make Turkey accept them. Besides, they forget an essential point: reconciliation after such a horrific crime and the right to compensation cannot be effective without the truth being said and specifics being named. And this has implications in international law.

Some suggest another strategy based on demands for compensation, with several variants: some demand that the restitution of national property be handed to the Patriarchate of Constantinople/Istanbul; others advocate transitional justice, the creation of a truth and reparation committee, which will field all the compensations, including requests for land restitution.

The Armenian state cultivates confusion: the supposedly pan-Armenian declaration of the centenary (29^th January 2015) contradicts public stances taken by the Armenian President. In his interview of 25^th April in the newspaper Hürriyet, he declared that “since its independence, the Republic of Armenia has never made any land claims on Turkey or any other country. This has never been and still is not on the agenda of our State’s foreign affairs. It should be clear. We are a full and responsible member of the international community. As a UN member nation, we understand our role in international relations and abide by the principles of international law.”

Correlating the status of responsible, law abiding member of the United Nations and the refusal to make land claims is absurd. Besides, contrary to his statements, the Armenian State does play on its own, and uses the ARF to look good in the eyes of the Diaspora on the issue of compensations. It occasionally bluffs and shows its muscle while caressing the dream of direct negotiations with Turkey – although under the aegis of its awe-inspiring strategic ally, Russia.

It may be noted that none of these directions are exclusive of the others, and that they even are complementary. It would be wise, however, that the people or entities initiating these moves be aware of that, and stop imagining that they each hold the solution to the problem and will reach it on their own. Moreover, it underlines the lack of a united decision-making and strategy by the whole of Armenian and Diaspora political forces. It is therefore necessary, for fear of decisions to be null and void, that an extraordinary pan-Armenian debate takes place in Yerevan, and that a cross-disciplinary team of experts prepare all the elements of that debate to be discussed in plenary assembly and behind closed doors.

III – Scattered strategies, questionable legal grounds and political daydreams

A highly opportunistic alliance between ARF and the Armenian government results in overbidding in the statement of claims.

The Armenian Revolutionary Federation (ARF), a.k.a. Dashnak Party, has been active in financing studies and legal counsel relative to the question of reparations, which shows the seriousness of their approach and reflection.  We can mention the AGRSG report made public in its finalized draft in March 2015 as well as the report of legal international experts of the AGIR Group (Armenian Genocide International Reparation) whose contents remains confidential and which the ARF did not disseminate among its own sections or the Armenian National Committee (ANC), its operational branch on Armenian cause. Only the Armenian government and the Constitutional Court have received it. But as the ARF themselves claim with insistence, these works are mere consultations and do not necessarily reflect their own point of view.

The ARF was also the main partner of the Armenian State in the drafting of the Centenary Declaration of 29^th January 2015. It also published a press release at the close of its general convention on 26^th January 2015. 

In the pan-Armenian United Declaration on the Centenary of the Armenian Genocide, there are two relevant paragraphs concerning reparation. The first expresses the hope that recognition and condemnation of the genocide of Armenians by Turkey will serve as a starting point for a historic reconciliation between the two peoples. The second underlines that the Sevres Peace Treaty of 10^th August 1920 and the “Just Ruling” (Arbitration) of American President Woodrow Wilson of 22^nd November 1920 are the two legal instruments to consider in order to repair the consequences of the genocide of Armenians. Paragraph 6 of the Declaration sums up the strategy, expressing “the united will of Armenia and the Armenian people to achieve worldwide recognition of the Armenian Genocide and the elimination of the consequences of the Genocide, preparing to this end a file of legal claims as a point of departure in the process of restoring individual, communal and pan-Armenian rights and legitimate interests.”

The ARF Declaration is substantially different. Although it supports the pursuit of a coordinated pan-Armenian plan for recognition of the genocide and demand for reparations, it also sets a strategic goal through the very direct means of territorial claims. This is not a new claim, but placing it first makes the building of a pan-Armenian platform of action all the more difficult. And the ARF is a dominant player among the Diaspora, the other large Diaspora organizations being either legalistic – meaning that they will follow the Armenian State in its decisions – or passive.

A proposal for transitional justice subject to conditions

The Armenian Genocide Reparations Study Group (AGRSG) proposes the way of transitional justice, but also starts with a neutralizing basic premise. This group formed in the United States under the leadership of Henri Thiérault (political and social philosophy) includes three authors: Ara Papian (former Armenian diplomat championing the thesis of the validity of Wilson’s arbitrage); Jermain McCalpin (political philosophy, specialized in transitional justice, the South-African experience and the question of moral reparations of slavery), and Alfred de Zayas (the only jurist). In the last months of 2010, they circulated a preliminary report to be completed or enriched. In the final report published in March 2015, considerably more moderate than the initial version, the Group acknowledged that the demand for reparations for the genocide, and particularly the claim for restitution of lands, may hardly ever come through, and was therefore impractical in current circumstances. The Group reminded us nevertheless that history offers many examples of situations which, analysed at a given time, made some proposals look unrealistic and bound to fail, although that assessment was eventually disproved because of drastic changes in the later context. Therefore, the Group promoted the idea that, as long as the law and ethics supported a change, even a far-off one, that change is always a possibility. This idea has sustained the ARF stance ever since. And, at the moment, current political and military events in the region prove them right.

On a legal level, the Group asserts much more doubtful and controversial ideas. They support the idea that the Convention for the prevention and repression of the crime of genocide (1948) is applicable to the Armenian case. As a reminder, the International Court of Justice (ICJ) has just rendered a judgment which contradicts that idea (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) - Summary of the Judgment of 3 February 2015 (In 2007, upon the Bosnia-Herzegovina v. Serbia and Montenegro, the Court had already issued very strict rules concerning the facts that could be qualified as genocide). Paragraph 95 of ICJ 2015 judgment is very clear about the non-retroactivity of the Convention, and in particular the obligation of prevention of the crime of genocide, including obligations which could have existed in customary international law which the Convention might have confirmed:

“The Court considers that a treaty obligation that requires a State to prevent something from happening cannot logically apply to events that occurred prior to the date on which that State

became bound by that obligation; what has already happened cannot be prevented. Logic, as well as the presumption against retroactivity of treaty obligations enshrined in Article28 of the Vienna Convention on the Law of Treaties, thus points clearly to the conclusion that the obligation to prevent genocide can be applicable only to acts that might occur after the Convention has entered into force for the State in question. Nothing in the text of the genocide Convention or the travaux préparatoires suggests a different conclusion. Nor does the fact that the Convention was intended to confirm obligations that already existed in customary international law. A State which is not yet party to the Convention when acts of genocide take place might well be in breach of its obligation under customary international law to prevent those acts from occurring but the fact that it subsequently becomes party to the Convention does not place it under an additional treaty obligation to have prevented those acts from taking place.”

The Group also defends the idea that apart from the invalidity of the Sevres Treaty (in its first version, the Group supported its validity), the Wilson “Just Ruling” could be valid. The argument runs as follows: While the Treaty itself needed to be ratified by the signatory countries in order to come into effect (which never happened), the rules of international arbitrage are different. They claim that once the arbitration decision is issued and accepted by the parties, the decision becomes binding even if other instruments relative to the case, such as a treaty, are not enforced, provided that the arbitration procedure meets the four criteria demanded for an arbitration decision to be valid and legally binding (which according to the group is the case). From that thesis, the Group concludes that Wilson’s arbitral ruling on the attribution of lands to the Armenian Republic (1918-1920) was binding on that date, regardless of the fact that the Sevres Treaty was not ratified. That thesis is very fragile because it could be opposed a founding rule of international law of arbitration saying that in the absence of compromise, no arbitration is possible. And in this case, the compromise was precisely the Sevres Treaty, which the Group considers invalid. 

Beyond the many other questions and answers submitted by the AGRSG, the central point of their strategy is to create a mechanism of ad hoc transitional justice which they named AGTRC (Armenian Genocide Truth and Rectification Commission) and posited as a prerequisite the recognition by Turkey of the reality of the genocide of Armenians. In other terms it brings us back to the above-mentioned political impasse.

Collectif 2015: an original, mainly political, and dangerously attractive approach for Turkey

On 13^th April 2015, this organization (based in France and affiliated to the International Union of Land and Culture Organizations) published an Application to the Turkish State for Reparation and the Restitution of National Assets and other Armenian Monuments, a declaration calling on the Republic of Turkey to hand back to Armenians the totality of national property confiscated from them. It includes monasteries, churches, chapels, cemeteries, hospitals, schools and other community buildings, as well as their annexes, grounds, forests and other possessions. “Restitution of these assets, in their own right or as a protective measure, is requested in view of registering them in the name of the Armenian Patriarchate in Constantinople/Istanbul, whose prerogatives and [legal] status need to be extended and strengthened, or on behalf of the ad hoc foundations that will be established under its aegis for the purpose of receiving them.”

This political mission statement calls for two comments: first, many community and religious institutions in Anatolia were attached to and the property of the Patriarchate of Jerusalem. This latter still holds the property titles of those assets. Others, in smaller numbers (from Kars and Ardahan) belonged to Etchmiadzin Catholicosate that also holds the property titles. Finally, there was the Catholicosate of the Great House of Cilicia in Sis (now Kozan) whose property has already been claimed by its head Aram I this year. It would be interesting to know how this proposal could be realized in disregard of the rights of the true owners or without previous consultation of all the protagonists. Secondly – and there even were recent examples of that – the Armenian Apostolic Patriarchate of Istanbul has always been the weak link in the defence of the interests of the Armenian community. It is in particular the place where the imprint and control of Turkish rule is most felt on the Armenian community even if the new post-Hrant Dink generation is shaking up the established order. As a reminder, the Armenian Apostolic Patriarchate still has no legal character so, before talking of reinforcing its power, it should have some in the first place (The Armenian Catholic Patriarchate has just obtained a legal status in 2015).

Although this proposal is original and even pragmatic in some respects, in others it is quite dangerous. The Turkish government would like to see some Armenian national property handed back to religious institutions (Patriarchate) or associations (religious foundations) since they would all fall under its direct control (through the famous Diyanet, or Department of Religious Affairs). 

The Collective then develops the specifics of the desired restitution or compensation mechanism. It should be noted that the Collective express no territorial claim but demands the reinstatement of the political rights of the Armenian society, and of its historic and material heritage. They also consider that the whole Armenian people was exterminated on the soil of their homeland, that this nation had rights which were trampled and negated, in particular those granted by the 1863 Constitution. By confiscating the homeland of that nation, the Ottoman Empire perpetrated a political crime.

This last assertion also calls for two comments: first, the Collective stands apart from the other organizations and the Armenian state who all emphasize previous recognition of the genocide: no such prerequisite is mentioned in their Declaration. Secondly, although original and deserving further legal study – in particular on the rights of the Armenian nation in relation to the 1863 Constitution – the notion of political crime is more perplexing because it is not written in any instrument of international law.

The political offensive of Catholicos Aram I: an exemplary initiative but incomprehensible procedure

The Holy See of Cilicia is very active on the question of restitutions of Armenian religious heritage, as much on the political as on a more operational level. In 2012, His Holiness Aram I convened a cross-disciplinary conference in Lebanon, mostly composed of historians and lawyers, in order to discuss the various options open to demand the restitution of religious properties without overlooking all the legal issues connected to reparations for the genocide.

Tired of waiting for the Armenian authorities to address the matter, Catholicos Aram I launched a legal and political process exciting high media interest to obtain the restitution of the Siege of the Catholicosate of Sis (now Kozan in the Adana province), and its properties.

Surrounded by his team, he decided to lodge an appeal directly with the Turkish Constitutional Court. He justified that move as a follow up to the Conference and asserts that his team of experts has considered all the obstacles that the appeal could meet during the procedure and that his goal is to reach the European Court of Human Rights as quickly as possible and create a legal precedent for restitution of all the assets belonging to the Churches.

The claim made for the restitution of the church and monastery lies upon two instruments of law: the first relies on the challenging of Ottoman law on “abandoned property” which includes the obligation to protect such assets and hand them back to their legal owner after the war; the second instrument argues that the right to a cult, deriving from the provisions of the Lausanne Treaty and in particular article 38, would be inherent to those religious places.

This initiative from the Catholicos, although welcome on the pan-Armenian level for its new dynamics created and the example it set, leaves us however in doubt on the procedural level because the procedure runs against the declared goal – i.e. to attain the European Court of Human Rights. Save for a political miracle, the Turkish Constitutional Court has no reason to accept that claim without appeals being addressed first to Turkish lesser jurisdictions – which would force the claimant to start the procedure again from scratch before a trial court. And if the plaintiff decided to file with the European Court to appeal the decision of the Turkish Constitutional Court, it would then be opposed for the same reason and the appeal declared invalid: only the exhaustion of domestic legal remedies in Turkey may provide access to the Strasbourg Court of Human Rights, any derogation to this rule occurring only in extreme, clearly characterized cases. The grounds cited by the Catholicosate to justify such a derogatory procedure seem very fragile precisely because, in the treatment of recent individual claims, Turkish courts have already opened breaches in the fortress of the land administration, challenging its refusal to open access to cadastral documents.

In terms of legal and political strategy, it is worth noting that in this case as well, there is no reference made to the genocide to ground the restitution of religious assets. The claim is not politicized. It is also the approach chosen by lawyers of individual claimants before Turkish courts.

Individual claims: closed doors in the United States and breaches opened in Turkey

The first individual or grouped claims were filed in United States jurisdictions. We remember the New York Life Insurance and Axa Insurance cases, which ended up with negotiated arbitrations between insurance companies and claimants. These cases, though, did not implicate the responsibility of the Turkish State.

Other cases, in particular the Harry Arzoumanian and others v. Münchener Rückversicherungs AG (German Insurance Company), propped on the political recognition of the genocide by the State of California, were eventually blocked by the US judicial system at federal level. The decision of the Court of Appeals for the Ninth Circuit, confirmed by a ruling of the US Supreme Court in May 2013, stated that the judgment by Californian courts in favour of the claimants was liable to affect the United States foreign policy and diplomatic relations between the US government and Turkey and that in this matter the pre-emption right of the US government was justified.

The US Supreme Court has even written a brief conclusion about the laws or motions passed by States or other local US authorities recognizing the Armenian genocide. It considered that these texts were solely declarative or commemorative, and that Californian jurisdictions exceeded their power by inferring executive force to these laws based upon such conflictual political events that had occurred on foreign soil almost a century ago.

This US Supreme Court decision casts light on how much is at stake in using the word genocide and a possible official recognition by the President of the United States. A change in doctrine and wording by the American government would open the way to collective actions and claims for considerable reparations and compensations. 

The latest actions of individual claims were taken in Turkey. These cases are interesting to observe and follow as they unfold before domestic jurisdictions. They concern cases of expropriation or confiscation of properties. The claimants hold the property deeds (which is not the case of the vast majority of Armenian descendants of victims or survivors of the Genocide). Zvart Sudjian, a US citizen holding property titles in the Diyarbakir area, is represented by an Istanbul law firm. Applications are mostly filed as claims for restitution or compensation in relation to confiscated properties. The legal grounds supporting the claims are: protection of property rights, respect of right of access to cadastral archives, and the obligation of the [Turkish] state to check the identity of real owners before disposing of lands or other assets, which are presently registered as state property.

The Sudjian case has known a first twist in the Court of Appeals upon a technicality. The Court recognized that the State [cadastral administration] had not taken the necessary action to research the identity of the rightful owners of lands ceded in 1967 – in that case to the airport authority of Diyarbakir. This procedural hurdle being lifted, the case was sent to a lower court to be examined on its merits.

Here again, and the lawyers insist on that point, there is no politicising of the case. There is no argument in direct and open connection to the reality of the perpetration of the genocide and the responsibility of the Turkish state. As in the case of the Catholicosate in Sis, the goal is, in case of rejection by Turkish courts, is to go to the European Court of Human Rights. What makes a difference is that the lawsuit has been engaged in a way that conforms to the exhaustion of domestic legal remedies principle.

Conclusions

This presentation of various approaches is probably not complete since there are many individual or collective initiatives, known or unknown, in preparation. But these few examples give us a sense of how difficult it will be to build a single pan-Armenian strategy.

One can only encourage individual, collective and institutional initiatives to claim restitution of or compensation for private assets and properties before Turkish courts. It would actually be good strategy to clog courts with such requests. Claims for restitution of national property are of another nature altogether, and cannot be placed by just one organization.

However, in order to preserve the collective interests at stake in the claims for moral and financial reparation for the mass crime committed against Ottoman Armenians, one should master the legal risks involved. The disorganized strategies observed, where the boundary between individual and collective interests is hard to set, require utmost vigilance. It is urgent to create an expert resource centre to this end, which could provide advice to these potential claimants on legal faux-pas to avoid in relation to the genocide and the responsibility of the Turkish state.

In this respect, the position of the Armenian state would be crucial: if it does not want direct involvement in the matter, it should at least provide support in principle. For the time being, as it is struggling with vital problems on the political, economic and social fronts, the Armenian state is not showing any clear intention of taking steps in this direction, and does not cooperate with the Diaspora. It only maintains relations with the ARF Party, when all the political forces in the country should be associated to this debate which, before being pan-Armenian is above all national: reparations could have major effects on the future of that country’s economic and political viability.

As for Armenian organizations in the Diaspora and those self-appointed or co-opted representatives and community leaders who hold sway while the majority of Armenians in the Diaspora have stepped back or remain silent, they should start a double revolution: first, to democratize the representative bodies and stop lying, then to start reflecting on the dogmatic sides of their demands. Individual claims will keep being lodged, and it is a good thing, apart for the reservation mentioned above. But collectively speaking, what is the goal of the Diaspora – to continue that entrenched battle for the word genocide and all its surrounding symbolism or rather obtain justice and reparation for the crimes committed by joining with the Republic of Armenia and turning that dark page of history? The time factor, overlooked by all, weighs dangerously on the question of reparations, and if it isn’t taken into account in the strategic planning, it will not fail to come up later in the course of lawsuits.