The Armenians and Claims for Reparations: Their Sovereignty Challenged?

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Created on Tuesday, 11 July 2017 02:55

Armenian genocide : recognition and reparations Standpoint of Diaspora  The Armenians and Claims for Reparations: Their Sovereignty Challenged? Raffi Philippe Kalfayan

Raffi Philippe Kalfayan Lawyer, former Secretary General of FIDH, coordinator of the AGIR network (Action Group for International Reparation for the Armenian Genocide).

The issue of reparations for the Genocide of Armenians may appear quite out of phase with the current state of Armenian-Turkish relations, as well as with the respective emergencies in both countries regarding infringements on civil rights and liberties and security threats. However, although these relations suffer from the weight of history and the understandable distrust that has set in, repairing past damages is a possible option to build foundations for a new era. Setting aside the specific situation of each country, this article examines where the case for reparations stands, which solutions are contemplated, and what the current policy of the Armenian State is on the question of the Genocide and its consequences. Philippe Raffi Kalfayan points to some persistent factors in the way Armenians have been handling their destiny so far, showing their impact on the treatment of genocide reparations or regarding territorial claims.

I- The Armenian State as an indispensable player

There have been enough research studies and conferences discussing this issue to enable us today to outline a possible strategy of actions in order to obtain reparations for the genocide of Armenians, both materially and morally.

Individual compensation for loss of property, whether belonging to private persons (family) or legal entities (company, religious institution) may be claimed in front of Turkish courts by those holding titles or deeds or by class action, as in the United States, in view of reaching settlements. Those actions are private initiatives but they do not address the damages of the collective crime. Practice also shows that with the passing of time, the nature of individual claims in terms of property tends to “collectivize”—i.e. to merge into collective claims, and this for several reasons: because proof of assets becomes harder to gather, the kinship and interests of beneficiaries less obvious to ascertain, and the procedural obstacles such as the statutory limitation period and jurisdictional competence harder to overcome.

Collective reparation, on the other hand, aims at the very essence of justice for a mass crime. It touches on national (meaning pan-Armenian) and strategic interests (economic compensations, borders, safeguards against repetition), and calls on international law (truth, remedy, restitution, compensation and satisfaction) because the whole community of nations is concerned with fighting impunity and preventing the most heinous crimes against humanity and peace.

At present, there is no judicial forum for litigations that would enable descendants of victims to assert their rights to reparations, particularly because Turkey’s consent is required. There are many objective legal reasons for this, which would take too long to explain here. However, a series of actions could be undertaken which would pave the way towards reaching a legal decision stating the responsibility of Turkey for past violations and thus the liability of its government to indemnify. There would be two distinct mechanisms used in these stages of the process: the first would be an interstate mechanism (a claim for an advisory opinion from the International Court of Justice) which would require the intervention of the Armenian State at the United Nations to obtain a favorable vote by the General Assembly or Security Council. As for the implementation of claims, the favored second mechanism would proceed from the founding of a Claims Commission, a negotiated administrative process. It would naturally be dependent on Turkey’s consent to enforce the decisions made.

Any process of collective reparation will depend in fine on Armenian-Turkish bilateral relations for three main reasons:

1. Turkey will prefer a global agreement with the Armenian side, settling all individual or collective claims once and for all; 

2. The resolution of the Nagorno-Karabakh question, although separate from the genocide question and Turkey, is imposed as a precondition to any relationship with Armenia.

3. Third parties consider that the genocide question touches on relations between the two countries. Indeed, the European Court of Human Rights has found in the Perinçek v. Switzerland case (Lower Court, 17 December 2013) that the matter in litigation was “an issue pertaining to relations between two States, namely Turkey and Armenia, the people of the latter country having been the victims of massacres and deportations.”

As for territorial claims, which are often raised by Armenians but are also a goal for some political parties, it should be recalled that they are in no way connected to the issue of reparations for the genocide of Armenians, and this for two main reasons:

1. Ottoman Armenians did not have any land autonomy or independence within the Ottoman Empire (from the 14^th century up to the genocide);

2. States have exclusive authority over such claims and any territorial dispute must be settled by peaceful means only, the recourse to coercion being prohibited by the United Nations Charter.

The retrospective study of bilateral or multilateral treaties that directly concerned Armenians, with or without their participation, from the 18^th to the 21^st century underlines several facts:

1. Russia became the imposed or consenting tutor for the protection of Orthodox Christians (the “Eastern Question”), then of Armenians in the Ottoman Empire (first reference to them is found in the 1878’s San Stefano and Berlin Treaties);

2. The power struggle between Great Britain and Russia in the region determined the fate of the Armenians, according to the military or ideological alliances of the Ottoman Empire, then of the Kemalist Republic;

3. The only treaty elaborating the creation of an Armenian State, i.e. Sèvres (1920) and its fate  illustrate that political game;

4. It is a Russian-Turkish Treaty which defined the borders of the Caucasian States (Moscow, 1921), confirmed by the latter states in the Treaty of Kars signed on 21 October 1921. The issue of the sovereignty of those Bolshevik Transcaucasian republics in Kars is debatable. 

In conclusion, the examination of the legal-political solutions at hand, the demands that Turkey might voice and the possible discussion of territorial claims clearly make Armenia’s involvement indispensable, but they also raise the issue of the real sovereignty of Armenia as a state.

II- The Republic of Armenia’s current policy for the recognition of the genocide: a dead end for reparations.

So far, Armenia’s policy has limited itself to the famous pan-armenian declaration of 29 January 2015 focused on supporting the process of political recognition of the Armenian genocide though out the world. The Armenian Foreign Affairs have also engaged in a  “prestige diplomacy” to show that Armenia is at the forefront of the fight to prevent genocides—a commendable policy but quite removed from the concrete actions needed to seek justice for the past crimes.

On that particular subject—i.e. defining a strategy or launching specific actions—the Armenian State remains in an observer’s position and the organization created specially to study these topics under the aegis of the Armenian constitutional Court is meant to centralize studies, analyses and initiatives on the subject, but not to take action.

It should also be noted that the Armenian State has been daunted by several litigations which faced  with disappointing outcomes, such as the Perinçek v. Switzerland  case and the Chiragov v. Armenia, both held before the Grand Chamber of the European Court of Human Rights.

Armenia’s lack of executives and of financial means, its refusal to use the skills in the Diaspora, and its blatant dependence on Russia generate a sort of inertia. Hence arises a risk on the legal and political planes, because, on the one hand, the time for legal action is not eternal and, on the other, ground is lost to the adversary. 

This attitude entails three damaging consequences:

First, it has a direct influence on the mainstream secular or religious Armenian organizations in the Diaspora, who are traditionally legitimist. The “Dashnaksutyun (or Armenian Revolutionary Federation), the political party spearheading the Armenian cause and making the strongest claims, has coalesced with the government and thus reduced its freedom of initiative.

Secondly, the resulting stagnancy is the worst possible scenario for the question of reparations but also for the recognition of the genocide of Armenians. (For instance, on 30 May 2017 in Baku, President Erdogan’s first adviser could state that Armenians never stopped clamoring for recognition of the genocide but refused any investigation on the facts.) The Republic of Armenia and the Diaspora both operate on a reactive rather than proactive mode, involve themselves in useless actions and expose themselves to diplomatic and judicial attacks from Turkey and its allies. As recent proof of that, on another legal-political case which the Republic of Armenia is faced with, Azerbaijan has called on the Security Council and the UN General Assembly to rule on the illegality of the Armenian occupation and of the activities of third parties in Nagorno-Karabakh, citing a “Legal Opinion on Third Party Obligations with Respect to Illegal Economic and Other Activities in the Occupied Territories of Azerbaijan.”  (Report submitted on 10 April 2017).

Thirdly, the passing of time and legal inaction may block any possible recourse for Armenian claims or reduce them to purely symbolic measures. The older the violation of international law, the harder it will be to identify the specific damages and the more symbolic, collective and memorial the reparations will be. Territorial claims would be even more problematic: constant jurisprudence from international jurisdictions state that in the absence of earlier claims repeated through time, it is assumed that the appellant has accepted the situation as it is. We can only observe that no such territorial claim has been expressed, either by the Soviet Republic of Armenia or by the current Republic against Turkey. However the attitude of the parties is essential to establish the grounding for claims and the passivity of a party is considered as tantamount to giving up its entitlement or claims.

Conclusion

The questions of reparations for the genocide of Armenians or the separate issue of the territorial claims of Armenia on Turkey are naturally and undoubtedly connected to Armenian-Turkish relations.

If some initiatives in the field of reparations coming from the Diaspora in the name and interests of descendants of victims are possible and commendable, they will only be marginal to the central issue of material and moral reparation for the genocide. And that issue cannot do without the involvement of the Armenian State within a global agreement to be found between Turkey and Armenians.

The chronology and contents of the treaties concerning Armenian populations in the Ottoman Empire, as well as the bilateral or multilateral treaties signed between Turkey and Armenia, but also the circumstances and geopolitical stakes of the international treaties of Sèvres and Lausanne illustrate to what extent Armenians and Armenia have been pawns, whether willingly or submissively, of a war of influence between great powers.

The sovereignty of Armenia does seem to be at the heart of issues concerning Armenian-Turkish relations, and consequently of the question of reparations as well. The new “cold war” waged by the United States and Europe against Russia and the constant threatening of Iran by the West and Israel even further complicate the reading of Armenia’s fate, “protected” as it is by Russia and friendly tied with Iran.

All these power games now crystallize around the resolution of the Nagorno-Karabakh conflict. The Armenian-Turkish protocols signed in Zurich in 2009 aimed covertly to resolve that problem, and they failed for that reason. The legal-diplomatic action launched against Armenia by the Azerbaijani government cannot be just an isolated initiative: it is a new way of putting pressure on Armenia. The Republic of Armenia is caught in a vise between its wish to restore its relationship with Turkey and its vital interest to protect the Nagorno-Karabakh, however without giving itself the means to regain sovereign control of its destiny.

All efforts must focus on bolstering Armenia’s sovereignty and rebuilding trust. Without disavowing the strategic alliances of today, a sovereign policy on the part of Armenia would be reassuring for Turkey and encourage it to pursue a dialogue towards a global and strategic bilateral agreement which would include the writing of a common narrative and reparation for damages caused in the past. Conversely, Turkey would be well-inspired to show its political sincerity by implementing provisional measures without delay, such as: suspend its official denial policy, put an end to its hate and discrimination speech and open an investigation into the past events, inviting in representatives of the civil or political society including members of the Armenian minority.

This presentation was part of the colloquium "Which Future for the Armenian-Turkish Dialogue? Balancing memorial issues and international relations" that took place in Yerevan on 17 February 2017. The colloquium was organized by Yerkir Europe in partnership with the French Embassy in Armenia, the French University in Armenia (UFAR) and the Fonds d'Alembert project of the Institut Français.