The Constitution of Armenia, the Genocide and its reparations

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Created on Saturday, 01 March 2014 20:44

Genocide in the relations between Armenia and Turkey Standpoint of Armenia   The Constitution of Armenia, the Genocide and its reparations Vladimir Vardanyan

Vladimir Vardanyan international law expert

The international law expert Vladimir Vardanyan presented in every detail the issue about the provision on the Armenian Genocide in the Constitution of the Republic of Armenia, including the clause on the claim of Western Armenia.  According to him the reference to the Genocide in the main document of Armenia is based on the international law and norms. The legist also spoke about the legal basis of the Turco-Russian Treaty, dated 1921.

How is the issue of Genocide raised in the RA Constitution? What is written about it there?

Both nothing and everything is written. Why nothing? Since there is no reference in the constitution, which is logical in a sense that Constitution is a tool directed towards the future. The tool which is entitled to regulate the relationship between the state and the individual, the individual and the society… It would have been illogical to stipulate provisions about the historical past. It is rather a main issue directed against the criminal law, legislation or Genocide denial. This is the answer to the question that there is nothing written. On the other hand, everything is written, since in the preamble of the Constitution a reference is made to the Declaration of Independence, which is an integral part of the Constitution and there is definitely a reference to the following provision: “The Constitution of the Republic of Armenia shall support the recognition and condemnation of the Armenian Genocide taken place in Western Armenia and Ottoman Empire.” That is to say, one of the main objectives of the state establishment has been fixed in the state’s founding document: – an obligation to support condemnation and recognition of the Armenian Genocide. This is what can be said about the correlation of the Constitution and Armenian Genocide.      

Of course, the section devoted to the human rights in the Constitution is, as such, based on the corresponding norms and principles of the international law, and has definitely a negative attitude towards genocide or any crime committed against the society, international law. 

And is there anything in the Constitution about the descendants of genocide victims, which have formed the Diaspora and also make a part of Armenia?     

Since the Constitution is a tool directed towards the future, the cause and effect relationship has been implemented only through the preamble.  And it is my firm conviction that it is not the task of the Constitution to regulate the main issues of the compensation either to the victims or heirs thereof.   

Hence, there is not anything about Western Armenia either, isn’t it? 

What could have been about Western Armenia? There are provisions, which are entitled to protect the Armenian cultural heritage both in Armenia and abroad: this is a general provision. There isn’t any other provision, and maybe there isn’t any need for it.        

Does Armenia recognize all treaties signed by the First Republic (1918-1920) and the Soviet Union…? 

The issue here is more complicated. After its formation, in terms of international obligations, Armenia was guided by the so called principle of tabula rasa - clean board or clean page, that is to say it didn’t acknowledge any document binding, concluded prior to the establishment of Armenia. We speak both about the treaties of Kars and Moscow. The logic is as follows: as a new independent state Armenia assumes international legal obligations on its own, correspondingly by joining separately or concluding international treaties. This is a general approach, which has been formed since 1991.       

According to the international law, can Armenia put forward a compensation claim from the legal point of view?

First of all we should understand what we mean by saying a compensation claim. By virtue of Article 9 of the Genocide Convention, Armenia can apply to the UN International Court saying that the Republic of Turkey, the legal successor of the Ottoman Empire, has executed the Genocide or violated the Genocide Convention with all the consequences arising there from. If the compensation claim follows the decision, then yes, if no then no. But here we speak about the interstate claim. Different mechanisms are possible. Many times I have told that we should differentiate 3 types of claims – interstate, the so-called genocide-related requirements, which do not arise from the Genocide, but are derivatives (such as insurance expenses, fees) and related requirements. These are the requirements arising from the genocide, which can be initiated under the judiciary powers of different states both in case of Turkey and other states. And, of course, putting forward a relevant claim against denial of the Genocide may take a form of a separate claim especially in the European countries, including Turkey theoretically. In the interstate sense, I see it only within the UN International Court, if it is a unilateral claim, or, through other mechanisms, upon the Turkey’s consent.                 

You spoke about the claim against the denial of the Armenian Genocide, the most recent, perhaps was the draft under the consideration in France. As an expert, do you think the initiative of other states to adopt laws on criminalizing the denial of Genocide right?

It is the business of each state. The approach to the freedom of speech is quite different in the USA. Such law cannot be adopted in the United States, at least in the near future. After the World War II holocaust disaster many European countries are trying to use this approach not allowing to deny such facts as, for instance, the Holocaust or the crime against humanity. In other words, it is typical of the European region. There are countries where such a law is generally unconstitutional and there are countries where it is an integral part of the constitutional right… However, it is the internal business of each state and we cannot say whether it is good or bad.         

What about Switzerland?

In case of Switzerland there is no any definite bill on the denial of the Armenian Genocide. Simply the court was guided by the existing criminal lawsuit and legislative norms by setting out that such speeches and statements, actually, arise from the general logic of struggle against hatred towards humans and spread national, religious or other type of hatred. Moreover, let’s pay attention to a very important circumstance: these laws do not cover the so-called reasonable suspicions. We simply speak about the policy of not accepting existing facts “impudently”, when the person simply apposes.    

Is the recognition of the Armenian Genocide by Turkey mandatory condition, so that the Republic of Armenia or the ancestors of the victims could put forward a compensation claim? 

The fact of recognition of the Armenian Genocide by Turkey is of substantial importance. Today it is not an easy task to say what consequences it will result in and how it will be done. Will Turkey recognize the fact that actions took place in the past by giving no assessments or will it act in some other way? Recognition of the Genocide by Turkey will definitely result in crucial changes. In case of the right, the devil is in the details. We should clearly understand what kind of claim we put forward.  If we speak about the claims of ownership, it is another question, if it comes to losing a relative, then another concept is required. If we speak about the property “inherited” by the state, then the procedure is quite different. In each concrete case the details should be understood. The recognition is too important to put forward the claims arising directly from the Genocide.

What is the legal point of view on the compensation of lands?

The issue of territorial compensation is very complex indeed in terms of disjoining relevant areas from the legal ancestor of the Ottoman Empire and joining them to Armenia… We can say that this issue does not arise directly from the Genocide, but is interrelated with the Armenian issue. After all, we should not forget that disjoining of those territories from the Ottoman Empire is conditioned by a very important circumstance:  the Ottoman Empire failed to prove to the international community that it is able to ensure the security of its Armenian citizens. That is why this territory could not be under the reign of the Ottoman Empire any more. Today, of course, no Armenians are left in these territories also due to the Genocide. I don’t want to express any opinion on this issue, but I must mention the following: though in many cases the losses incurred due to the Genocide and ways of solving the Armenian issue are interrelated, but they are different phenomena. One thing is for sure – today there isn’t any complete, full bilateral or even multilateral treaty between Armenia and Turkey, not arising any suspicion, complying with international norms and ratified by all parties.    

Turkey qualified the decision made by the RA Constitutional Court regarding Armenian-Turkish protocols on 12 January, 2010 as a main obstacle for the progress of Armenian-Turkish relations and ratification of protocols. Your comments, please.                            

What is written in the decision of the Constitutional Court is written. This much…

From the constitutional point of view, is the claim of Armenia on recognizing the Armenian Genocide able to record a relevant result?  

Regulation of the issue of the Armenian Genocide through legislative measures; I am very subjective. Many people may disagree with me, but I think that according to the international law the Genocide itself is a crime. Therefore, the sanctions should be formulated in the due manner. And if it is so, only and only legally one should try to achieve the recognition of the Armenian Genocide and relevant compensation. The contemporary world, as compared to the world that existed some 20-30 years ago, where the idea of imposing sanctions on the state merely for the crime called the Genocide was doubted, has substantially changed. Today the punishment mechanisms which are directed towards the crime against the international law seem to gradually gain strength and develop. In the light of the very development we should further the processes. Of course, here we definitely need a simultaneous approach between different institutions of Armenia and Diaspora both from legal and political point of view. It is not an easy task. After all, we don’t deal with a case where one person was assassinated; we deal with a criminal policy, which lasted for many years, where tens of thousands participated, hundreds of thousands reaching up to one million died. No matter how hard we tried to solve this issue on the legal platform, sometimes the legality is pushed out to the second plan…