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Home >> Former USSR >> Chechnya & the Caucasus ICJ and Armenian Genocide dispute Cenap Cakmak, Ph.D. - 2/28/2008 Newspapers have reported that Turkey readies to take the longstanding Armenian Genocide dispute to the International Court of Justice (ICJ), the UN-affiliated judicial institution authorized to deal with interstate disagreements. In consideration of the growing problem in regards to the recognition of the so-called Armenian genocide by a number of parliaments allegedly committed by Turkish authorities in early 1900s, Turkey has decided to prove in reliance on a global court’s judgment that the events may not be viewed as repercussions of the deliberative acts to destroy or eliminate a certain ethnic or religious group in part or as a whole. A disputed genocide?From an international law perspective, the alleged Armenian genocide is certainly disputed simply because the allegations are not based on legal verdicts by a competent international judicial institution. However, what Turkey is dealing with is not a pure legal problem that needs to be resolved by international legal institutions. For a number of states, and many international law scholars and historians, whether the deaths in early 1900s constitute commission of the crime of genocide is not disputable; rather, only what should be done as part of reparation and remedy is a matter of discussion. Parliaments of the states which recognize the Armenian genocide did not seek any ruling by a competent international organization; instead, they relied on the literature of genocide studies and were strongly influenced by the efforts of the Armenian lobbies. The relevant literature a priori accepts that a large Armenian population was subjected to a genocidal campaign by the Ottoman State in 1915 and there is no argument about it. Even the introductory legal textbooks cite the Armenian Genocide as the first genocide committed of the twentieth century, further noting that the failure of the international community to deal with it resulted in commission of similar subsequent campaigns. There are even assertions that attribute Hitler’s decision to annihilate the Jews to this failure given that he, in reference to the Armenian genocide, allegedly said nobody remembered the Armenians. The minds are already set to the assumption that Armenians suffered from a brutal campaign of mass killing; it will not be easy to change this assumption through a judgment by the ICJ. This does not suggest that Turkey should not resort to this option; but not much should be expected of such an action. Does recognition of genocide require a judicial verdict?The ICJ’s involvement in the dispute appears to be appealing to the Turkish authorities because of the assumption that recognition of genocide requires a legal decision delivered by a competent international (or national) judicial institution. This is undoubtedly true from a legal standpoint. Yet this does not mean that states or scholars are barred from describing a particular situation as genocide in the absence of such a decision. There is no legal authority or instrument that prohibits recognition of a case as genocide unless a competent international judicial body confirms that it is indeed genocide. There are examples whereby states have described a particular situation as genocide without a legal ruling. The US administration as well as the US Congress defined the situation in Darfur region of Sudan as genocide. While the case has been referred to the International Criminal Court (ICC) whose chief prosecutor has decided to initiate an investigation, there is no legal ruling confirming the acts in the region may be considered genocide. The US position in this particular case is praised by civil society organizations and humanitarian assistance institutions which also strongly criticize the European states and the UN because of their reluctance to recognize the crime of genocide in Darfur. States are usually hesitant to recognize genocide because of probable obligations under the Convention on the Prevention and Punishment of the Crime of Genocide where the parties “undertake to prevent and to punish” the crime (article 1). But the Armenian case may be considered an exception because it has already (and allegedly) been committed and there is no need for preventive action; therefore, it is easy for the states to recognize this genocide because it creates no obligation under the said Convention. ICJ’s eroded image and Armenian genocideTurkish authorities selected the ICJ as the competent international judicial institution to deal with the dispute on the so-called Armenian genocide. This might seem a wise move because Turkey would reinforce its position the Court decides that the deaths in 1915 were not genocide. However, such a decision will not end the discussion due to the ICJ’s eroded image. The Court’s recent decision on the Bosnian genocide has severely been criticized by scholars and opinion leaders because it was viewed as an attempt to save Serbia from liability and accountability under international law. It should be recalled that some Turkish columnists welcomed the decision, asserting that the Court would make a similar decision with regard to a future case in relation to the alleged Armenian genocide. This was actually not something that Turks should welcome; the ICJ’s image has been undermined by this shocking decision. It is no longer a respected and highly legitimate international institution whose judgment will resolve a highly controversial dispute. From a legal standpoint, such a decision will surely be binding over the parties to the dispute; but this will not end the discussions and further political actions as part of recognizing the Armenian genocide. In other words, it is hard to believe that the parliaments describing the 1915 events as genocide will review their decisions based on the ICJ ruling and that scholars who agree that Ottoman Turks subjected the Armenian population to a brutal genocidal campaign will change their minds simply because the ICJ decided it was not genocide. That being said, there seems to be no option that Turkey could rely on other than taking the case to the ICJ at the present time. Turkey’s long reluctance and indifference is the primary reason for why the Armenian lobbies has made progress in ensuring recognition of the alleged Armenian genocide. But this is a past matter; and at the present time, reliance on international adjudication seems to be best policy option for Turkey.
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