Abstract
Starting from the claim by the Armenian community and the majority of historians that the 1915–1916 Armenian massacres and deportations constitute genocide as well as Turkey’s fierce opposition to such a qualification, this paper investigates the possibility of identifying those massacres and deportations as the destruction of a nation. On the basis of a thorough analysis of the facts and the required mental element, the author shows that a deliberate destruction, in a substantial part, of the Armenian Christian nation as such, took place in those years. To come to this conclusion, this paper borrows the very same determinants as those used in the case-law of the Military Tribunals in occupied Germany, the International Court of Justice and the International Criminal Tribunals for the Former Yugoslavia and Rwanda in genocide cases. Based on the principle of tempus regit actum, this essay also discusses the law applicable to such a deliberate destruction, and tries to demonstrate that, far from falling in a legal vacuum, the 1915–1916 Armenian massacres and deportations constituted a serious breach of various international norms in force at that time. Indeed, it consisted in “the murder of a nation”, which is the proper meaning of the word “genocide”.
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Notes
- 1.
The Armenian community was for a long time considered the millet-y-sadyka, “the most loyal millet” (see, inter alios, Lewy (2005a), pp. 3, 7).
- 2.
See on this movement of populations Van Hear (1998). See also the interview given by the Turkish historian, professor at the Sabanci University in Istanbul, Halil Berktay, on 1 November 2000 after a Symposium in Chicago on the Armenian tragedy (http://www.atour.com/~aahgn/news/20001101c.html).
- 3.
As T. Akçam, a Turkish scholar, who went into exile in ‘70s after having escaped from jail in Turkey as human rights activist, significantly stresses, “the era of nation-state ushered in a new period of defining ‘the other’”: Akçam (2012), p. IX. For an objective understanding of the events of 1915–16 in the Ottoman Empire, is also interesting what Halil Berktay says, inter alia: “Th[e] period of the second half of the 19th century and the beginning of the 20th century was a time of rapacious, social-Darwinist nationalisms in Europe, in which it was ‘kill or be killed’. It was a time in which massacres, large and small, were carried out, and in which the Turkish Muslim population was also very much a victim.” (quoted supra fn. 3).
- 4.
The crushing of an Armenian rebellion by some revolutionists, although it did not have much success within their community, caused in 1894 about 4.000/6.000 victims mostly among innocent mountaineers in the region of Sasun and was followed by other massacres in Constantinople, Trebizond and Urfa in 1895 and in the District of Van in 1896. See, inter alios, Lewy (2005a), p. 20 ff.
- 5.
See, Sect. 4.1.2. Indeed, in 1878 the first Armenian political parties – Hunchak and Dashnak – were organized to claim civil rights and parity with Muslims. These two parties were then represented in the Ottoman National Assembly until the fraudulent elections of 1912 (the so called “Elections of clubs”) and were peacefully and legally fighting for the democratization of the Empire together with the Liberal Union and other parties opposing the Young Turks rule. Armenian parliamentarians were amongst the members of the leadership massacred in 1915, as was Krikor Zohrab, a personal friend of Talât Pasha!
- 6.
On this historical background, see also Flores in this Volume, and the literature he refers to, as well as all the literature quoted in the present paper. I limit myself to underline what the Turkish historian Halil Berktay says about the Triumvirate members: “It’s necessary to understand something not just about the Ittihatve Terakki, but also about the three-man military dictatorship of Enver, Cemal, and Talât that headed it. These were not traditional Ottoman notables. They were a new type of elite […]. They were extremely ambitious and predatory. They were positivists, without roots, and had risen only as a result of their education and thanks to the army. They lived a life of violence. This violence was of a sort that had been imposed on them by the great powers and the revolts in the Balkans, and as a result they became extreme nationalists. They were fighting desperately for the survival of the Empire […]. The Ittihatve Terakki triumvirate of Enver, Cemal, and Talât was an extraordinary administration that had been born in these conditions of war and struggle” (supra, fn. 3). See also Morgenthau (1918), p. 106–109.
- 7.
There were some Ottoman Armenian deserters fighting during WWI in volunteer units of the Russian Army. But these were sporadic instances (see on this question and on the attempt of the Ottoman leadership to solve the problem in cooperation with the Turkish authorities Payaslian (2006), p. 156 ff.) These units had been indeed created and mostly composed of and commanded by Russian Armenians (as commander Drastamat Kanayan) or by Ottoman Armenians who had left their homeland after the first persecutions and massacres, at the end of the XIX and beginning of the XX century (as did both Andranik in 1907, when disagreeing with the cooperation of the Armenian leadership with the “Young Turks”, and Hamazasp Srvandztyan in 1914 (he then participated in the Armenian resistance in Van).
- 8.
The fact that the war represented the real opportunity for the atrocities against Armenians is discussed by many scholars. See, in particular, Flores, in this volume. Talât himself affirmed, on 6 January 1915: “Turkey is taking advantage of the war in order to thoroughly liquidate its internal foes, i.e., the indigenous Christians, without being thereby disturbed by foreign intervention”, quoted by Dadrian (1989), p. 258. Interesting is also the interpretation of these events in the context of WWI given by Halil Berktay: “The Allied landing at Gallipoli during the First World War [the night of 24/25 April 1915] created the fear among the Ottomans, who had suffered continuous losses throughout the 19th century and were now left with little but Anatolia, that ‘Now we’re even going to lose Istanbul, and we won’t even be able to hang on to Anatolia’. For this reason, there’s an integral connection between the Ottoman psychosis of having its back to the wall, being desperate and harassed, and the policy that the military dictatorship of the Committee of Union and Progress (Ittihatve Terakki) would launch against the Armenians on the eastern front. The 24/25 April date was when this desperation was crystallized.” (quoted supra fn. 3).
- 9.
The massacres and deportations of Armenians were characterized as genocide also by Pope Francis, who was warned by President Erdogan not to make “such a mistake again”, while the Prime Minister Davutoglu accused the Pope of “blackmail” and of having joined an “evil front”. On the qualification of the “Armenian genocide” see also, inter several alios, Weitz (2015), as well as the interesting sentence of the Permanent Peoples’ Tribunal on the Armenian Genocide, issued in Paris on 16 April 1984 (http://permanentpeoplestribunal.org/11-armenian-genocide-paris-13-16-april-1984/?lang=en). See also T. Akçam, who, on the basis of first-hands documents, conducted a new research on the “Armenian question” after his previous ones. This research resulted in the volume Akçam (2012), where there is also, in the first Chapter, a detailed illustration of Turkish archives and other relevant sources, together with an in-depth discussion of their reliability. Indeed, Akçam also accurately discusses how the archives have been purged from the documents concerning the Armenian massacres, how they disappeared or are perhaps still hidden.
- 10.
It must also be stressed that Ottoman documents cannot be read by present day Turks, save by some scholars, after the nationalistic reform of the Turkish language started in 1928 (see Metz (1995)). As to the photographic documents, several of these come from Armin T. Wegner, a paramedic, member of the German Army, present on Ottoman territory in 1915–16. There are also some photos of the Armenian concentration camps, taken by him during a military mission in Mesopotamia. He succeeded to hide only some of the numerous photos of the massacred, starved and suffering victims and send them to Germany and the U.S. But his activity was discovered and eventually he was recalled to Germany, where, two decades later, he tried to fight against the criminal rule of the Nazis. Persecuted by them, he went on exile to Italy. I have read some of his very emotional interviews to Italian newspapers, where he was giving direct testimony on the Armenian massacres and deportations.
- 11.
I particularly refer to the Official Report on the Armenian massacres prepared by J. Bryce, a British historian and diplomat, for the Secretary of State for Foreign Affairs. The Report was later edited by the (then) young historian A. J. Toynbee and published in Bryce and Toynbee (1916). In the very words of J. Bryce (Preface, p. XXI), “the evidence here collected comes from various sources. A large, perhaps the largest, part has been drawn from neutral witnesses who were living in or passing through Asiatic Turkey while these events were happening, and had opportunities of observing them. Another part comes from natives of the country, nearly all Christians, who succeeded, despite the stringency of the Turkish censorship, in getting letters into neutral countries, or who themselves escaped into Greece, or Russia, or Egypt and were there able to write down what they had seen. A third but much smaller part comes from subjects of the now belligerent Powers (mostly Germans) who were in Turkey when these events were happening, and subsequently published in their own countries accounts based on their personal knowledge.” In his Preface, J. Bryce also discusses the reliability of this documentation and its sources. The Bryce/Toynbee compilation was accused by Turkey of being war propaganda and some Western commentators were convinced of this as Bryce had also authored a Report on the atrocities of Germans in Belgium, which were not considered credible! Needless to say, this type of criticisms reveals a discriminatory and racist approach, as if Germans (or other Europeans) could not be put on the same footing of Turks, Kurds and Circassians in respect of the commission of atrocities. In fact, these German atrocities of 1914 in Belgium (and France) were instead proved (see Horne and Kramer (2001)). WWII proved even better, as the former Yugoslavia conflict did, that Europeans are also capable of perpetrating mass atrocities. So, I consider the Bryce/Toynbee compilation reliable. I further refer to the Report by L. A. Davis, the U.S. Consul of Harput (1914–1917), to the State Department, written in 1918 upon his return in the United States. The Consul had directly witnessed the bodies of thousands of slaughtered Armenians and, with the help of a medical doctor, tried to understand the causes of deaths. This Report, which contains several pictures of the victims, was found in the U.S. National Archives only in 1988 by a researcher, Susan Blair, who then published it with a commentary (2001). The experiences referred to in are also relevant.
- 12.
I refer here to Morgenthau (1918). In this landmark book, the former U.S. Ambassador in Constantinople (1913–1916) recorded all his talks with the CUP members of the Triumvirate and other diplomats and military present at that time in the Ottoman capital. He was indeed a direct witness of the top rulers decisions and intentions. He likewise recorded in this Story many reports he received from the US consuls present in all districts of the Empire and from the numerous US religious missionaries operating in the entire Ottoman territory. US consuls and missionaries were direct witnesses of the massacres and deportations. In this Story, Morgenthau also discusses the events with a surprisingly modern approach. Indeed, he constantly stresses the elements characterizing the Murder of a Nation, as he labels the 1915–16 events in Chapter XXIV of his Story according to the same determinants of the current legal notion of genocide. Given his continuous contacts with direct sources, I consider that, together with Bryce/Toynbee compilation and the Report of Davis (1918), Morgenthau’s Story is one of the most important documents for reference on what really happened in 1915–16 (however, I do not share some malicious observations by Morgenthau on “Turks”, even if there are understandable when they were directed towards the triumvirate’s members). I have also found very useful Kévorkian and Ternon (2014). The synthetic narration of all that happened in 1915–16 contained in a Report of 1916 is also impressive. It is published in Niepage (1917).
- 13.
- 14.
- 15.
The historian J. McCarthy reveals to be the most fervent denier of the genocide and defender of the massacres (sic!) as a result of a civil war: see The Armenian-Turkish Conflict, Speech given by him at the Turkish Grand National Assembly on 24 March 2005 (https://wilson.engr.wisc.edu/Armenia/justin.html), McCarthy (2006, 2015) and McCarthy et al. (2006), as well as the Conference of Prof. McCarthy quoted below, fn. 88. From a scientific point of view all thesis have, of course, their dignity if supported by historical data and logical arguments. Yet, acknowledging massacres and attributing them to a civil war situation as well as to criminal bands represent an incoherent reading of the facts, since massacres are massacres and nothing else. In his numerous conferences in which he appears as an ardent propagandist of the Turkish positions, this historian does not bring evidence, but only makes categorical statements on the civil war justification, where Turks would have massacred Armenians and the latter would have massacred the former. It is a pity that he ignores the fact that even in the hypothetical civil war context of 1915–16 there were some domestic and international rules that the Ottoman Empire had to comply with. Furthermore, the tu quoque argument can never be used to justify a very serious wrongdoing. In arguing the tu quoque defense he refers to “thousands of Turks’ killed by Armenians”, not considering that in the events of 1915–16 there are, at any rate, even assuming those killings did take place, two different elements that testify the destruction of the Armenian community by the Ottoman Empire: deportations without return of elders, women and children, and the involvement of the Turkish rulers against innocent victims. Indeed, when prof. McCarthy is a lone speaker on “the Armenian question”, as it frequently occurs, the weaknesses of his thesis may not appear, but, after a serious comparison between different views, they are clear. After all, even prof. McCarthy admits to half a million of Armenians perished, as “sickness, exhaustion following long marches, immediate change of climate”, i.e. nothing else than the destructive modalities of deportations of children, women and elders!
- 16.
See Flores and Latino in this book and, in particular, Robertson (2009): His opinion deserves special attention as it comes from a British counsel in leading criminal cases and an International Judge on genocide, war crimes and crimes against humanity (first President of the Special Court for Sierra Leone) and an author of books in this field. See also Robertson (2016).
- 17.
For instance, B. Lewis, Interview of 14 April 2002, https://www.ataa.org/reference/lewis.pdf, specifically questions the analogy with the holocaust, while in 1915–16 only a deportation policy would have occurred. Apart from the under-estimation of the killings, he also does not consider that deportations and their modalities were the most relevant components of the destruction of the Armenian nation. In 1994, on account of his denial of the Armenian genocide, Lewis was convicted in France to paying a symbolic sum of 1 franc for “grievous prejudice to truthful memory”. I have some reservations on the criminalization of denialism, in particular when not accompanied by instigating to hatred or racist behaviour, which is frequent but was not the case of Lewis.
- 18.
Among those who deny the massacres of 1915–16 or justify them in the context of a civil war or simply war conditions, in addition to McCarthy (2006, 2015) and McCarthy et al. (2006), there are Shaw and Shaw (1977), Gürün (1985). I would put amongst them also Lewy (2005a). This latter historian attempts to give an objective illustration of the facts occurred, as he purportedly states that other historians have not. The accuracy and objectivity of his research is however convincingly contested by Akçam (2008). Its weakness also appears in Lewy (2005b) (see about this above, fn. 166).
- 19.
Turkish authorities, anxious to deny massacres and death marches or at least to find some justification, give contradictory versions of the atrocities occurred during the war. Inter alia: 1. the Armenian population was attacked by “bandits”, 2. it was attacked by people of the Ottoman provinces where Armenians were fighting with the enemy (in particular with Russia), 3. some killings of Armenian men or their “relocation” constituted a lawful defense of the Empire against their uprising and collaboration with the enemy, 4. some suffering of the civilian members of the Armenian community was caused by the “relocation” (or “resettlement”) organized by the authorities in time of war for military necessity or security reasons (even for the Armenians’ security!), 5. the suffering of Armenian civilians was caused by war conditions, which also affected thousands of Muslim Turks. On 29 April 2014, President Erdogan asked: if a genocide had been occurred, would there still be Armenians in Turkey? In so doing, he clearly showed his complete ignorance of the determinants of genocide, while also implicitly denying the Jews and Tutsi genocides, which were legally ascertained by criminal courts, notwithstanding the presence of Jews even in Germany and Tutsi in Rwanda after the genocide. For a recent Turkish view on the “Armenian question”, see Tacar and Gauin (2012). The two authors, a former Turkish Ambassador and an expert in strategic issues, discuss International Law issues, but clearly show that these matters are not in the realm of their areas of competence. In particular, they do not see the difference between international responsibility pursuant to general International Law and competence of international bodies to deal with it. Their writing is a reply to a contribution by Avedian (2012) in the European Journal of International Law (EJIL). Although he is an historian, Avedian seems to be more familiar with International Law issues. However, why did the EJIL not ask experts of International Law to deal with such complex and delicate issues that do not only concern the reconstruction of historical truth in the “Armenian question”?
- 20.
Cipolletti, in this Volume.
- 21.
UNGA Resolution, 1946. 96 (I).
- 22.
As correctly underlined by Sir Geoffrey Robertson, the destruction of a substantial part of the Armenians in Turkey became, in the years before the Holocaust, the paradigm for those who argued for the creation of a new crime to be called genocide: Robertson (2009), p. 3.
- 23.
Morgenthau (1918). Also in German the word “Völkermord” (the murder of a nation) is often used instead of “genozid”.
- 24.
Gianelli, in this Volume.
- 25.
However, the 1948 Convention, by “recognizing that at all periods of history genocide has inflicted great losses on humanity” (Preamble), allows to assume that, according to States Parties, the term genocide can be used for such a conduct whenever it has occurred.
- 26.
An analogous approach was already followed by the International Center for Transitional Justice and it resulted in the following conclusion: “The Events […] can […] be said to include all of the elements of the crime of genocide as defined in the Convention, and legal scholars as well as historians, politicians, journalists and other people would be justified in continuing to so describe them” (quoted by Phillips (2015)). I do not agree with W.A. Schabas’ suggestion to qualify the tragic events of 1915–16 only as crime against humanity (Schabas 2011, p. 256). I agree that genocide is a crime against humanity, but a specific one, and this specificity needs to be reflected in the way it is labelled. Furthermore, in labelling those events only as crime against humanity, one loses their twofold characterization: In addition of consisting in an individual crime, genocide is also a state violation of International Law. The ILC has rejected the term “crime” with regard to States’ violations of fundamental international rules, in view of avoiding a sort of “criminalization” of States’ conducts. Moreover, labelling the 1915–16 events as crimes against humanity could implicitly be read as simply and automatically considering them as conduct by bandits or, perhaps, by (incompetent) State agents and not an overall State-decided/planned/organized destruction of a community. This approach would render worthless any discussion on these events, given that no individual perpetrator is still alive.
- 27.
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007 (here ICJ Genocide case), para. 182. The Court also stressed that “The different procedures followed by, and powers available to, this Court and to the courts and tribunals trying persons for criminal offences, do not themselves indicate that there is a legal bar to the Court itself finding that genocide or the other acts enumerated in Article III have been committed. Under its Statute the Court has the capacity to undertake that task” (para. 209–210). The Court competence in relation to State responsibility for genocide is apparent by the content of Article IX of the Convention: “Disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in art. III, shall be submitted to the ICJ at the request of any of the parties to the dispute”.
- 28.
On the attribution to the State of the acts of the Ottoman rulers - and likely also of the Special Organization – see below fn. 30, 86, 89 and 177.
- 29.
The Teskilat-iMahsusa was a semi-secret para-military organization created in 1914, put under the orders of Dr. Bahaettin Sakir and charged with the task of coordinating massacres and deportations. It resorted to hundreds of Turks, Circassians and Kurds for carrying out criminal activities on the field. It already had an experience with the forced expulsion of 200.000 Rûm from the Aegean coast in 1914: see on this the Introduction to Kieser, Oktem and Reinkowski (2015); see also Üngör (2016). On the links of this Organisation with the Ottoman rulers and on its composition, see, inter alia, what the Turkish historian, Halil Berktay writes: “It is clear that Bahaettin Sakir, who operated as the Teskilat-i Mahsusa's man for Enver, Cemal, and Talât, set up death squads in the region. Some of these people were convicted criminals who were saved from the gallows and released from prison just to carry out such activities” (supra, fn. 3). Such an evaluation of the Special Organisation was also made by the Martial Courts’ Trials held in 1919–20. Being this Organisation directly connected with the CUP members, it was indeed a state organ of the Ottoman State, even though only a de facto organ.
- 30.
This ascertainment is relevant not only for the Armenian community, but also for the Kurdish and Turkish peoples. These peoples would need to oppose an official biased reconstruction of the Armenian events. They too are the victims of such a reconstruction, which represents “them” as the unique culprits, without taking into account that religious authorities had convinced them that killing Armenians was an order from God. Indeed, Leslie Davis recalls the feeling of Muslims living near the Consulate in these words: “We could all hear them piously calling upon Allah to bless them in their efforts to kill the hated Christians.” Davis (1918), p. 69. On the proclamation of Jihad see Payaslian (2006), p. 156.
- 31.
On the question of the continuity between the Ottoman Empire and present-day Turkey or succession of this latter State to the former, see V. Avedian (2012), pp. 799–805.
- 32.
Cipolletti in this Volume.
- 33.
Thus, Article IX of the 1948 Convention cannot be a basis for the Court jurisdiction on the dispute about labelling the massacres and deportations of Armenians as genocide. For an opposite view, see de Zayas (2010).
- 34.
Lemkin (1933).
- 35.
The first anti-Semite law was issued in Germany in April 1933.
- 36.
See the arguments developed in the Nuremberg Judgement on the principle of legality: International Military Tribunal (IMT), Trial of the Major War Criminals before the International Military Tribunal, Nuremberg 14 November 1945–1 October 1946, Published at Nuremberg, Germany 1947, p. 462. For an interesting comment of those arguments see Acquaviva (2011).
- 37.
This new word is contained in the Preface (of October 1943) of Lemkin (1944).
- 38.
IMT, Trial of the Major War Criminals before the International Military Tribunal, p. 43–44.
- 39.
IMT, Trial of the Major War Criminals before the International Military Tribunal, pp. 202 and 340.
- 40.
IMT, Trial of the Major War Criminals before the International Military Tribunal, p. 272: Judges referred to “the elimination of all inferior races”, borrowing the Nazi language.
- 41.
Military Tribunal III, Opinion and Judgement, vol. 3, p. 963. The Judges go on to state: “As set forth in the indictment, the acts charged as crimes against humanity were committed before the occupation of Germany. They were described as racial persecutions by Nazi officials perpetrated upon German nationals. The crime of genocide is an illustration” (p. 983). In the same Judgment, they convicted the defendant Lautz stating that he “was criminally implicated in enforcing the law against Poles and Jews which we deem to be a part of the established governmental plan for the extermination of those races. He was an accessory to, and took a consenting part in, the crime of genocide” (p. 1128). More or less in similar terms, still referring to genocide, they assessed the responsibility of Rothaug for having applied “the cruel and discriminatory law against Poles and Jews” and having so participated “in the crime of genocide” (p. 1156).
- 42.
Indeed, see the following statement included in the Genocide Convention: “The Contracting Parties confirm that genocide […] is a crime under international law” (Article 1). If the States had adopted a new international rule criminalizing ex-novo the destruction of a national, racial, ethnical or religious group as such, they should have undertaken, and not only confirmed, “to consider genocide as a crime under international law”.
- 43.
The horrendous acts committed by the German occupation forces were labelled as such by Churchill in a broadcast from London on 24 August 1941: http://www.preventgenocide.org/genocide/crimewithoutaname.htm.
- 44.
This extermination came weakly to the fore after the start of negotiations between Germany and Namibia over possible reparation payments. See Bruneteau (2006), who discusses in the 1st Chapter the massacres of indigenous peoples by imperialist Europe.
- 45.
See above, fn. 24.
- 46.
On the issue of the number of victims I will not participate to “the war of numbers”, which is ongoing between some historians and Turkish rulers from the end of WWI. I will only recall that an official Ottoman statistic calculated 800,000 Armenians’ losses between 1915 and 1917–18 (Ottoman Gazette, No. 3909, 21 July 1920). Even if concerning a period of at least one year longer, this number is by far sufficient to consider that a substantial part of Armenians disappeared in 1915–16. Indeed, the actual victims to consider are not only those who died and even less who were directly killed (on the notion of victims see Donat Cattin, in this Volume). On the calculation of the number of the Armenian losses, I refer to a recent essay even though it considers the period of 1915–1923: Bijak and Lubman (2016). The Authors resort to the same demographic methodologies the Chambers were confronted with in the ICTY cases when they had to calculate the losses of Bosniaks, Croats and Serbs in the former Yugoslavia conflict.
- 47.
ICTY, Trial Chamber Judgment, Karadžić, 24 March 2016, vol. 1, p. 205.
- 48.
This is how Morgenthau describes the Armenian soldiers’ situation in the Army at the beginning of the war: “In the early 1915, the Armenian soldiers in the Turkish army were reduced to a new status. Up to that time most of them had been combatants, but now they were all stripped of their arms and transformed into workmen […] road labourers and pack animals. Army supplies of all kinds were loaded on their backs, and, stumbling under the burdens and driven by the whips and bayonets of the Turks, they were forced to drag their weary bodies into the mountains of the Caucasus […]. They had to spend practically all their time in the open, sleeping on the bare ground whenever the ceaseless prodding of their taskmasters gave them an occasional opportunity to sleep. They were given only scraps of food; if they fell sick they were left where they had dropped, their Turkish oppressors perhaps stopping long enough to rob them of all their possessions even of their clothes. If any stragglers succeeded in reaching their destinations, they were not infrequently massacred […]. In almost all cases the procedure was the same. Here and there squads of 50 or 100 men would be taken, bound together in groups of four, and then marched out to a secluded spot a short distance from the village. Suddenly the sound of rifle shots would fill the air… In cases that came to my attention, the murderers had added a refinement to their victims’ sufferings by compelling them to dig their graves before being shot […]”: Morgenthau (1918), pp. 302–303.
- 49.
In the part concerning Srebrenica of the Karadžić TC Judgement is stated: “The Chamber notes that the operation, which was carried out by the Bosnian Serb Forces who vigorously pursued the Bosnian Muslim males in the column, encompassed the killing of all Bosnian Muslim men in Bosnian Serb custody, irrespective of whether they were combatants or civilians and regardless of whether they were captured or had surrendered. The Chamber considers that this, combined with the manner as well as the systematic and highly organised nature of the killings, demonstrates a clear intent to kill every able-bodied Bosnian Muslim male from Srebrenica. Noting that killing every able-bodied male of a group results in severe procreative implications that may lead to the group's extinction, the Chamber finds that the only reasonable inference on the basis of such evidence is that members of the Bosnian Serb Forces orchestrating this operation intended to destroy the Bosnian Muslims in Srebrenica as such.” ICTY, Trial Chamber Judgment, Karadžić, 24 March 2016, vol. 1, para. 5669.
- 50.
This also is what Morgenthau underlines: “These massacres were not isolated happenings; I could detail many more episodes just as horrible as the one related above; throughout the Turkish Empire a systematic attempt was made to kill all able-bodied men, not only for the purpose of removing all males who might propagate a new generation of Armenians, but for the purpose of rendering the weaker part of the population an easy prey.”: Morgenthau (1918), p. 304.
- 51.
The same author then went on to say: “The same day twelve Armenians were hanged at Kaisaria, on the charge of having obeyed instructions received from the secret conference held at Bukarest by the Runtchakists and Droshakists. Besides these hangings, 32 persons have been sentenced at Kaisaria to terms of hard labour, ranging from ten to fifteen years. Most of them are honest merchants who are in no sort of relation with the political parties”, Bryce and Toynbee (1916) p. 10 of the General Description.
- 52.
Morgenthau (1918), p. 352–353.
- 53.
See below, Sect. 3.1.6 the different context of the Van events.
- 54.
See, among several others, Bloxham (2007), p. 70.
- 55.
Some of them avoided killing and deportation only because the Turks needed them on ground of their particular profession. See on such situation Davis (1918), p. 71.
- 56.
However, he could not psychologically survive the horrors he had suffered and witnessed and he died in an American psychiatric hospital.
- 57.
See, for instance, above fn. 8 about Andranik.
- 58.
Some of these unimaginable tortures are described by direct victims and eyewitnesses, as reported by Davis (1918), particularly p. 66.
- 59.
Bryce and Toynbee report the deportations of Armenians as follows: “The exiles from each centre were broken up into several convoys, which varied in size from two or three hundred to three or four thousand members. A detachment of gendarmerie was assigned to every convoy, to guard them on the way, and the civil authorities hired or requisitioned a certain number of ox-carts (arabas), usually one to a family, which they placed at their disposal; and so the convoy started out. The mental misery of exile was sufficiently acute, but it was soon ousted by more material cares. A few days, or even a few hours, after the start, the carters would refuse to drive them further, and the gendarmes, as fellow Moslems, would connive at their mutinousness. So the carts turned back, and the exiles had to go forward on foot. This was the beginning of their physical torments, for they were not travelling over soft country or graded roads, but by mule-tracks across some of the roughest country in the world. It was the hot season, the wells and springs were sometimes many hours' journey apart, and the gendarmes often amused themselves by forbidding their fainting victims to drink. It would have been an arduous march for soldiers on active service, but the members of these convoys were none of them fitted or trained for physical hardship. They were the women and children, the old and the sick. Some of the women had been delicately brought up and lived in comfort all their lives some had to carry children in their arms too young to walk; others had been sent off with the convoy when they were far gone with child, and gave birth on the road. None of these latter survived, for they were forced to march on again after a few hours' respite; they died on the road, and the new-born babies perished with them. Many others died of hunger and thirst, sunstroke, apoplexy or sheer exhaustion […].” Bryce and Toynbee (1916), p. 642. See also below, fn. 62.
- 60.
Morgenthau (1918), p. 365. And: “As a matter of fact, the Turks never had the slightest idea of reestablishing the Armenians in this new country. They knew that the great majority would never reach their destination and that those who did would either die of thirst and starvation, or be murdered… The real purpose of the deportation was robbery and destruction; it really represented a new method of massacre.” Morgenthau (1918), p. 115 f. And further: “When the Turkish authorities gave the orders for these deportations, they were merely giving the death warrant to a whole race; they understood this well, and, in their conversations with me, they made no particular attempt to conceal the fact.” A protestant missionary, in describing deportations in his diary, writes: “for most of the women and children was reserved the long and lingering suffering that made massacre seem to them a merciful fate – suffering such as was foreseen and planned by the perpetrators of this horror”: Riggs (1997), Chap. XV, entitled “The Turkish Idea of Deportation”, p. 140.
- 61.
On some terrible deportations accounts see Davis (1918), Bryce and Toynbee (1916), in particular pp. 98 ff. G. Gorrini, the Italian Consul-General in Trebizond gave this account to his government when back to Italy: “The passing of gangs of Armenian exiles beneath the windows and before the door of the Consulate; their prayers for help, when neither I nor any other could do anything to answer them; the city in a state of siege, guarded at every point by 15,000 troops in complete war equipment, by thousands of police agents, by bands of volunteers and by the members of the ‘Committee of Union and Progress’; the lamentations, the tears, the abandonments, the imprecations, the many suicides, the instantaneous deaths from sheer terror, the sudden unhinging of men’s reason, the conflagrations, the shooting of victims in the city, the ruthless searches through the houses in the countryside; the hundreds of corpses found every day along the exile road; the young women converted by force to Islam or exiled like the rest; the children torn away from their families or from the Christian schools, and handed over by force to Moslem families, or else placed by hundreds on board ship in nothing but their shirts, and then capsized and drowned in the Black Sea and the River Deyirmen Dere – these are my last ineffaceable memories of Trebizond, memories which still, at a month’s distance, torment my soul and almost drive me frantic”, quoted and translated from Italian by Hovannisian (1994), p. 125.
- 62.
As L. Basso has significantly pointed out: “Destroying or tainting a culture means destroying the dialectic between the individual and social features, which is the rhythm of the human life, it means to depersonalize, anonymize, throw into the vacuum of a pure material existence deprived of the warmth of life, deprived of human dimension” (quoted in Monina (2016), p. 387. The translation is mine).
- 63.
- 64.
See, inter alios, Kurt (2015).
- 65.
Consul Leslie Davis, entered one of these camps and described it as follows: “the most horrible scene I have ever witnessed, one not surpassed by any in Dante’s Inferno”: Davis (1918), p. 76.
- 66.
Walker (1990), pp. 223, 229.
- 67.
- 68.
See on this the messages about children destined by him to a fate of death, which were sent by the Minister Talât Pasha to the Government of Aleppo, referred to in Sect. 3.2.3.
- 69.
Telegram of 14 January 2016, in Andonian (1965), p. 56. This book was translated into English from the Original written in Armenian in 1919. It collected the telegrams sent by Talât and given to Andonian by an Ottoman official. Turkish authorities contest the authenticity of this correspondence, which is instead affirmed by researchers such as Yves Ternon, Vahakn N. Dadrian, Taner Akçam. See in particular Ternon (1989), Chapter II of Part I.
- 70.
On this, see the witness-survivor account in Davis (1918), p. 71. The American Consul at Trebizond, Oscar S. Heizer, so describes this situation in a message of 7 July 1915 to Ambassador Morgenthau: “The city of Trebizond and surrounding villages is estimated at 10,000 Armenians. Of this later number 5200 have already been sent away. The children, when the parents so desired, were left behind and placed in large houses in different parts of the city. There are approximately three thousand such children retained in these houses called by the Turks ‘Orphanages’. Girls up to 15 years of age inclusive, and boys to 10 years of age inclusive are accepted; those over these ages are compelled to go with their parents […]. The institutions are guarded by gendarmes and each institution has a Turkish Mudir or Director.” See http://www.wbarrow.co.uk/rememberarmenia/pdfs_in_chapters/06_armenia2_reports.pdf, p. 90.
- 71.
- 72.
See the testimonies on this situation in Davis (1918), p. 97 ff., in particular p. 101.
- 73.
See the testimonies about the charitable conduct of some Turkish women in Davis (1918), p. 106. James Bryce notices: “The Turkish officials are usually heartless and callous. But here and there we see one of a finer temper, who refuses to carry out the orders given him and is sometimes dismissed for his refusal. The Moslem rabble is usually pitiless. It pillages the houses and robs the persons of the hapless exiles. But now and then there appear pious and compassionate Moslems who try to save the lives or alleviate the miseries of their Christian neighbours.” (Preface to Bryce and Toynbee (1916)).
- 74.
The new Ottoman Minister of Interior Mustafa Arif Bey stated on 13 December 1918: “Surely a few Armenians aided and abetted our enemy, and a few Armenian Deputies committed crimes against the Turkish nation… it is incumbent upon a government to pursue the guilty ones. Unfortunately, our wartime leaders, imbued with a spirit of brigandage, carried out the law of deportation in a manner that could surpass the proclivities of the most bloodthirsty bandits. They decided to exterminate the Armenians, and they did exterminate them. This decision was taken by the Central Committee of the Young Turks and was implemented by the government” (quoted by Dadrian (1991), p. 110).
- 75.
See above, fn. 11. The Turkish historian Halil Berktay gives his impression when showing these pictures: “Everywhere in the Western world, there are photographs of these incidents which we can't bear to look at. The first time I encountered these visual records, I cried and could hardly breathe for several minutes. They are no different from the images of the concentration camps, or the massacres in Africa. For there are huge numbers of people in these pictures.” (supra, fn. 3).
- 76.
This is what Morgenthau writes on 10 July to the US Secretary of State Bryan “[…] persecution of Armenians assuming unprecedented proportions. Reports from widely scattered districts indicate systematic attempt to uproot peaceful Armenian populations and through arbitrary arrests, terrible tortures, wholesale expulsions and deportations from one end of the Empire to the other accompanied by frequent instances of rape, pillage, and murder, turning into massacre, to bring destruction and destitution on them. These measures are not in response to popular or fanatical demand, but are purely arbitrary and directed from Constantinople in the name of military necessity, often in districts where no military operations are likely to take place […]”, in Papers Relating to the Foreign Relations of the United States, 1915 Supplement, The World War, Section “Efforts in behalf of Armenians and Jews in Turkey”, p. 983.
- 77.
Some of these rights were indeed formally conferred first through the tanzimat and then, in 1914, by the new reform, but both reforms remained on paper.
- 78.
Amb. Morghenthau describes the previous situation in Van in the following way: “Its Turkish governor, Tahsin Pasha, was one of the more enlightened type of Turkish officials. Relations between the Armenians, who lived in the better section of the city, and the Turks and the Kurds, who occupied the mud huts in the Moslem quarter, had been tolerably agreeable for many years”: Morgenthau (1918), p. 110.
- 79.
Morgenthau (1918), p. 297. The protestant missionary already quoted writes: “The loss of Van to the Russians, through the activity and bravery of the Armenians, produced a tremendous impression. Of course it was not then generally known that the Armenians had only acted in self-defense after the Turks had massacred many of them. Outbreaks were reported in various places, and some of these, notably in the region of Diarbekir, were real enough, though the Armenians were the victims not the aggressors in these disturbances.” (Riggs 1997, p. 50).
- 80.
Morgenthau writes: “these events [the Van revolt] are always brought forward by the Turks as a justification of their subsequent crimes. As I shall relate, Enver, Talât, and the rest, when I appealed to them in behalf of the Armenians, invariably instanced the ‘revolutionists’ of Van as a sample of Armenian treachery. The famous “Revolution”, as this recital shows, was merely the determination of the Armenians to save their women’s honour and their own lives, after the Turks, by massacring thousands of their neighbours, had shown them the fate that awaited them.” (Morgenthau 1918, p. 227). The Austrian Military Attaché and Military Plenipotentiary to the Ottoman Empire said “The Van uprising certainly was an act of desperation. The local Armenians realized that general massacres against the Armenians had already started and they would be the next target. In the course of the summer 1915 the Turkish government with inexorable consequence brought its bloody task of extermination of an entire nation to an end.” (quoted by Dadrian (1994), p. 116. See also Akçam (2006), p. 200. On the contrary, in McCarthy et al. (2006), these events are described as following: ‘[t]he slaughter of Muslims that accompanied the Armenian revolt in Van Province inexorably led first to Kurdish reprisals on the Armenian, then to a general and mutual massacre of the people of the East. The Armenian revolt began an intercommunal war, in which both sides, fearing their own survival, killed those who, given the chance, would have killed them. The result was unprecedented horror. History records few examples of mortality as great as that suffered in Van Province.” (p. 265).
- 81.
And, mutatis mutandis, nobody is attempting to use this revolt as a justification of the massacre of Polish Jews by the Nazi!
- 82.
The U.S. Secretary of State Bryan so writes to the Ambassador Morgenthau, on 27 April 1915: “Russian Ambassador has brought to our attention an appeal made by the Catholicos of the Armenian Church that this Government use its good offices with the Turkish Government to prevent the massacre of non-combatant Armenians in Turkish territory. You will please bring the matter to the attention of the government, urging upon it the use of effective means for the protection of Armenians from violence at the hands of those of other religions. The Russian Ambassador calls attention to the fact that there are many Mussulmans in Russian territory and that these enjoy immunity from religious persecution.” (Papers quoted supra, fn. 77).
- 83.
The German Ambassador in Constantinople, Wangenheim, replied to an attempt by Amb. Morgenthau to obtain his support in favour of the Armenians as follows: “The United States is apparently the only country that takes much interest in the Armenians. Your missionaries are their friends and your people have constituted themselves their guardians […]. Mr. Bryan has just published his note, saying that it would be unnatural not to sell munitions to England and France. As long as your government maintains that attitude we can do nothing for the Armenians.” (Morgenthau 1918, p. 139). However, not all German Diplomats had such an approach. For instance, according to Amb. Morgenthau, the indignation of Neurath, the Conseiller of the German Embassy had “reached such a point that his language to Talât and Enver became almost undiplomatic”, but “he had failed to influence them”. Neurath told Morgenthau that “They [were] immovable and [were] determined to pursue their […] course” (p. 140).
- 84.
ICTR, Trial Chamber Judgment, Akayesu, 2 September 1998, para. 498. As to the jurisprudence of the ICJ, see the Genocide case, para. 242 ff.
- 85.
The question of the attribution to a State of the acts of its agents was largely discussed by ICJ in the Genocide case from the perspective of the possibility to attribute to it the acts of both de iure organs and other entities or individuals under their control: ICJ, Genocide case, paras. 385–395. This latter aspect is also relevant here insofar it concerns the activities of the semi-secret Special Organisation, which, as already noted, acted as de facto (if not de iure) organ of the Ottoman State (see above fn. 30).
- 86.
As ICJ, Genocide case, para. 182 stressed, “State responsibility can arise under the Convention for genocide and complicity, without an individual being convicted of the crime or an associated one”.
- 87.
See Lewy (2005b). See also the Conference of Prof. McCarthy in the Canadian Parliament (see the video of 26 February 2015, https://www.youtube.com/watch?v=gQw_dLdV_zA, 2 March 2015). Yet his interpretation of the 1915–1916 events also appears in his other works quoted supra fn. 16.
- 88.
During a talk with Enver Pasha, Amb. Morgenthau said: “Of course I know that the Cabinet would never order such terrible things as have taken place. You and Talât and the rest of the Committee can hardly be held responsible. Undoubtedly your subordinates have gone much further than you have ever intended. I realize that it is not always easy to control your underlings.” Enver answered: “You are greatly mistaken […]. We have this country absolutely under our control. I have no desire to shift the blame on to our underlings and I am entirely willing to accept the responsibility myself for everything that has taken place. The Cabinet itself has ordered the deportations. I am convinced that we are completely justified in doing this owing to the hostile attitude of the Armenians toward the Ottoman Government, but we are the real rulers of Turkey, and no underling would dare proceed in a matter of this kind without our orders.” Morgenthau (1918), p. 351–352.
- 89.
In any case, as convincingly Travis (2016) shows, the war, in particular a civil war situation is perfectly compatible with the destructive intent of the authors in adopting suppressive measures against the insurgents and the civilians belonging to the insurgents’ community.
- 90.
For an opposite view see McCarthy et al. (2006), p. 265. Concerning the arguments put forward by those authors, I also reject the argument of the combat victims on both sides. Leaving aside elderly and women, I am wondering whether the hundreds (or thousands) of children killed at Van were also combatants.
- 91.
An Ambassador of Israel, Rivka Kohen, has also declared that “the 1915 events couldn’t be considered genocide because the main killings in these events were not planned and the Ottoman government had no intention to destroy a nation or a group of people as such” (Press conference, Yerevan, 7 February 2002, quoted in European Journal of International Law, 2012, fn. 21). This is the official view of Israel, which can thus claim the Shoah to be a unique case and support Turkey – its only Muslim ally – in the “Armenian question”. I would expect a more impartial attitude with respect to the Armenian tragedy from a State representing millions of victims of Holocaust.
- 92.
See, inter alia, ICTY, Appeals Chamber Judgment, Jelisic, 5 July 2001, para. 48. Planning is, in the ICTY and ICTR Statutes, a mode of responsibility, often alleged by the Prosecutor with regard to the top rulers of the State involved in genocide, crimes against humanity, war crimes. Policy is instead required as constitutive component of crimes against humanity other than genocide pursuant to the Statute of the International Criminal Court (ICC).
- 93.
ICTR, Appeals Chamber Judgement, Kayishema and Ruzindana, 1 June 2001, para. 138.
- 94.
- 95.
Horne (1923), p. 174. Almost all documents mentioned can also be found in Armenian Genocide Turkish Documents, https://www.Google.It/#Q=Uacla and at http://www.firstworldwar.com/source/armenia_Talâtorders.htm. Further numerous relevant documents proving the specific intent can be found in Dadrian (1991).
- 96.
Horne (1923), p. 174.
- 97.
18 November 1915, Horne (1923), p. 175.
- 98.
- 99.
Morgenthau (1918), p. 126.
- 100.
Morgenthau (1918), p. 127.
- 101.
Morgenthau (1918), p. 148.
- 102.
Davis (1918), p. 52.
- 103.
Some disputes concerning these confiscations were brought by heirs of victims before U.S. Courts, pursuant to the California legislature that extended the statute of limitations for actions seeking the recovery of “looted assets” by any “Armenian Genocide victim” or any “heir or beneficiary of an Armenian Genocide victim” who resides in California. Indeed, the statute provides that such actions could be brought on or before 31 December 2016. See, for instance, Varoujan Deirmenjian v. Deutsche Bank US District Court, California (Judge Morrow) 11 September 2006, https://www.courtlistener.com/opinion/2415413/deirmenjian-v-deutsche-bank-ag/.
- 104.
ICTY, Trial Chamber Decision on Consideration of the Indictment within the framework of Rule 61 of the Rules of Procedure and Evidence, Karadzic and Mladic, 11 July 1996, para. 94, fn. 102. See in the same vein, ICTR, Trial Chamber Judgment, Akayesu, 2 September 1998, para. 523.
- 105.
Inter alia, Akayesu, confirmed on appeal and ICJ, Genocide case, para. 370 ff. See Cassese (2008), p. 143.
- 106.
See, inter alia, ICTR, Trial Chamber Judgment, Rutaganda, 6 December 1999, para. 61–63. See also ICTR, Trial Chamber Judgment, Musema, 27 January 2000, para. 167.
- 107.
ICTY, Trial Chamber Decision on Consideration of the Indictment, quoted supra, fn. 104, para. 95. See also ICTR, Trial Chamber Judgment, Semanza, 15 May 2003, para. 313. ICTR, Trial Chamber Judgment, Bagilishema, 7 June 2001, para. 63.
- 108.
See, inter alia, ICTR, Akayesu, para. 523 and Musema, para. 166.
- 109.
See, inter alia, ICTR, Akayesu, para. 523 and Musema, para. 166.
- 110.
See in this vein ICTR, Bagilishema, para. 63.
- 111.
Morgenthau (1918), p. 109.
- 112.
Morgenthau (1918), p. 116. Jesse K Jackson, the U.S. diplomat who served as consul in Aleppo, 1915–16, described in his dispatches the local towns and districts “where Armenians have already been practically exterminated” and called the Turkish government’s confiscation scheme “a gigantic plundering scheme as well as a final blow to extinguish the [Armenian] race”, quoted by Robertson (2016), para. 38.
- 113.
Bryce and Toynbee (1916), General description.
- 114.
11 December 1915, http://www.firstworldwar.com/source/armenia_Talâtorders.htm.
- 115.
29 December 1915, http://www.firstworldwar.com/source/armenia_Talâtorders.htm.
- 116.
Lothrop Stoddard (1917).
- 117.
The difference between the two situations also appears evident by the fact that Greeks under expulsions were requested to sign documents certifying that they were voluntarily abandoning their lands and houses. This same occurred with the Bosniaks who were forced to abandon their houses and villages and to sign a declaration certifying their consent (indeed, the assessment of these facts, together with killings, tortures etc., in other Municipalities than Srebrenica, brought in the Karadzic and Mladić ICTY cases to the assessment of many crimes against humanity, but not of genocide).
- 118.
Morgenthau reports a talk with a representative of the National police, which thus explained the decision of the Ottoman authorities to massacre and deport Armenians: “the profound moral reason why we must, as statesmen, show ourselves indifferent to the sufferings of the Christian peoples of Turkey, however painful that may be to our human feelings […]. That is our duty, which we must recognize and confess before God and before man. If for this reason we now maintain the existence of the Turkish state, we do it in our own self-interest, because what we have in mind is our great future”: Morgenthau (1918), p. 139.
- 119.
Autonomy does not mean independence. A status of autonomy is an internal notion, in the context of the constitutional and administrative organization of a state, while independence marks the existence of a State superiorem non recognoscens.
- 120.
See Sect. 4.1.1.
- 121.
The recognition by Turkey of Armenia as independent State and the possible transfer of some Ottoman “Armenian” Provinces under the sovereignty of this new State were provided for by the Sèvres Treaty. It was indeed evident that the events of 1915–16 – in a minor extent still unfolding when the Treaty was adopted – rendered almost impossible for the remaining part of the community to coexist with Muslim Turks in the Ottoman Empire.
- 122.
The following editorial, which appeared in June 1898 in the Armenian Revue Droschak, is particularly revealing as to this approach: “Nous avons toujours été favorables à l’idée de solidarité. […] S’il existe aujourd’hui un certain antagonisme national entre Turcs et Arméniens ottomans, c’est pour l’essentiel à cause du gouvernement. Et nous sommes persuadés qu’à l’avenir, lorsque des conditions politiques acceptables auront été instaurées en Turquie, les deux nations continueront à vivre en paix et dans la sérénité et se dirigeront, dans un effort général, vers la plus haute civilisation. […] Peu importe que certains représentants décrépits de la Jeune Turquie, qui ignorent tout de notre action, répandent des insinuations contre nous, présentant à la face de toute l’Europe les comités arméniens comme ‘les destructeurs de villages turcs’ et jetant à la figure des révolutionnaires arméniens le qualificatif de ‘séparatiste’” (the original French version, p. 59–60, quoted in Kévorkian and Ternon (2014), p. 24).
- 123.
Morgenthau (1918), p. 115–116.
- 124.
Morgenthau (1918), p. 116.
- 125.
Morgenthau (1918), p. 114.
- 126.
Horne (1923).
- 127.
Quoted by Robertson (2009), para. 42. Even if the press is at times unreliable, it is also true that it has first hands information. If such information is compatible with other kinds of information, it can be cautiously utilized even in a criminal proceeding. So allow me to report the following dispatch from Henry Wood, correspondent of the American “United Press” at Constantinople, published in the American Press on 14th August 1915: “sealed orders were sent to the police of the entire Empire. These were to be opened on a specified date that would ensure the orders being in the hands of every department at the moment they were to be opened. Once opened, they provided for a simultaneous descent at practically the same moment on the Armenian population of the entire Empire.”
- 128.
“Turkish officialdom has always contained a minority of men who do not believe in massacre as a state policy and cannot be depended upon to carry out strictly the most bloody orders of the Central Government.” (Morgenthau 1918, p. 111).
- 129.
Morgenthau (1918), p. 111.
- 130.
In holding this view I am in good company. Even diplomats of a friend and allied Power, as the German Ambassador to Istanbul, Count Wolf-Metternich, reported to its government that “the CUP demands the extirpation of the last remnants of Armenians […]” and commented that “Turkification means licence to expel, to kill or destroy everything that is not Turkish, and to violently take possession of the goods of others”. The German Vice-Consul in Erzurum reported that the CUP members “are bluntly admitting that the purpose of their actions is the total obliteration of the Armenians”. He also mentioned that an authoritative person would have “word-for-word declared” that “we will have in Turkey no more Armenians after the war” (quoted by Robertson 1999, para. 38). Another German who was opposed to the atrocities was Neurath, the Counselor of the German Embassy. Morgenthau says about him: “His indignation reached such a point that his language to Talât and Enver became almost undiplomatic. He told me, however, that he had failed to influence them. They are immovable and are determined to pursue their present course” (Morgenthau, 1918, p. 140).
- 131.
It needs however to be underlined that the formula “shall” referred to the exclusion of any discrimination on religious grounds, contained in the Porte declaration, clearly shows that a unilateral promise by a Party to a Treaty attested by the other Parties had a binding effect. Such effect is further proved by the provision envisaging the diplomatic protection of persons claiming religious liberty and civil and political rights without discrimination. On unilateral declarations as binding instrument in international law see Eckart (2012).
- 132.
The Treaty of Sèvres referred to “race” too. Race as the ground for targeting the Armenians is also referred to by Amb. Morgenthau mainly in telegrams to the US Secretary of State, which are mentioned in the present paper. Indeed, Armenians and Turks are not considered of the same race. But, at that time, the term race was used in a broader sense than currently.
- 133.
How can the Turks, Kurds and Circassians as such take on their shoulders all the responsibility for the destruction of the Armenian community and not react to the false interpretation of these tragic events that the Turkish authorities continue to give? Were there thousands of bandits in the Ottoman Empire in 1915–16? No, besides some bandits used by the top rulers for the commission of the most dreadful crimes, there were mostly “unsophisticated” people instigated and ordered by political and religious Muslim authorities to eliminate the alleged traitors members of a Christian Nation and take their properties.
- 134.
See below, Sect. 4.5.3.
- 135.
Italy, for instance, received alarming messages on the situation from its Consul-General in Trebisonda, Giacomo Gorrini. The Consul, after ending his mandate in the Ottoman Empire when Italy entered into war, also gave a dramatic interview to the Newspaper “Il Messaggero”. Yet, the Italian rulers preferred to look the other way too.
- 136.
During the American civil war, in 1865, Henry Wirz, a Major of the Confederate Army, accused by a US war Commission of violations of the laws of war against enemy prisoners in a camp under his control, was tried and sentenced to death. Apart from the question that later arose about the unfair proceedings that led to this conviction, this trial clearly shows that some laws of war applied even in civil war, as after all the Lieber Code, promulgated as General Order No. 100 by President Lincoln on 24 April 1863, provided. Its Articles 149–157 applied to insurrection, civil war and rebellion. See the interesting observations on Lieber Code by the European Court of Human Rights (Grand Chamber), Komonov v. Latvia, 17 May 2010, paras. 63–77 and 207.
- 137.
See Ticehurst (1997).
- 138.
Report of the International Law Commission on the Work of its Forty-sixth Session, 2 May/22 July 1994, GAOR A/49/10, p. 317.
- 139.
See some of the Excerpts from the proceedings of the Courts Martials held in Istanbul from April to July 1919 against the leaders of the CUP – published in the Ottoman Official Journal Takvim I Vekai, n. 3571 – reprinted in Libaridian (2007), p. 130 ff. From these Excerpts the ideology of the CUP leaders that inspired their deeds reveals apparent and they clearly do not show any repression of an uprising.
- 140.
In the propagandist conferences and in other symposiums of prof. McCarthy I did not hear any reference to elders, women, children. It seems that the Armenian community was only composed of combatants killing Turkish combatants and civilians. See, for instance, the Australian Turkish Advocacy Alliance Symposium of 7 December 2013, where that professor embarks, inter alia, in a completely wrong definition of genocide.
- 141.
Christian Europe and above all the Catholic Church would need to recognize that Crusades were not Holy wars, just as all Islamic States and all Islamic religious authorities would need to recognize that the Jihad against Christians is not a Holy war.
- 142.
For instance, the Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Saint Petersburg, 29 November/11 December 1868, in its Preamble referred to the requirements of humanity such as limits to the necessities of war.
- 143.
In 165 B.C., in one of his theatrical works, Publius Terentius Afer expressed a clear concept of Humanitas: “Homo sum, humani nihil a me alienum puto” (Heautontimorùmenos, verse 77)!
- 144.
Torture against a person for obtaining information or confession was perhaps still legal at that time, but torture against innocent children, women and elders was certainly not. Yet, already in 1764, Cesare Beccaria pleaded against the use of judicial torture to extract confessions: “Dei delitti e delle pene”, Ch. XVI “Della tortura”, a cura di Renato Fabietti, Mursia, Milano 1973.
- 145.
Here the suggestions: “(1) that the United States Government on behalf of humanity urgently requests the Turkish Government to cease at once the present campaign and to permit the survivors to return to their homes if not in the war zones, or else to receive proper treatment; (2) that if our present relations permit, an official appeal be made to the Emperor of Germany to insist on Turkey, his ally, stopping this annihilation of a Christian race; (3) that a vigorous official demand be made without delay for the granting of every facility to Americans and others to visit and render pecuniary and other assistance they may desire to Armenians already affected by Government deportation.” The U.S. Secretary of state agreed on these suggestions.
- 146.
Telegram of 18 August 1915. The US Ambassador also reports on his steps in favor of the Armenians working in U.S. Consulates, religious missions and Colleges, in order to allow them to leave the Ottoman territory. He wrote to Bryan in these terms: “Minister of War has promised to permit departure of such Armenians to the United States whose emigration I vouch for as bona fide”.
- 147.
In the same telegram mentioned above he adds: “Destruction of Armenian race in Turkey is progressing rapidly”.
- 148.
- 149.
Article 38 of the Statute of the Permanent Court of International Justice, as later of the Statute of the ICJ, also implicitly refers to those principles in indicating the applicable law. Indeed, in addition to international conventions and customary rules it contemplates the general principles of law recognized by civilized nations, among which are also included humanitarian principles. Thus, these latter were also in force in the Ottoman Empire, as the 1919–20 trials showed.
- 150.
See the Commission Report: Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, in The American Journal of International Law, 1920, Vol. 14, No. 1/2, p. 113. On the works of this Commission see also the comments made by Marchesi, in this volume.
- 151.
Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, in The American Journal of International Law, 1920, Vol. 14, No. 1/2, p. 134.
- 152.
On this point see Marchesi, in this volume.
- 153.
See above fn. 137 about the Henry Wirz trial, to which also the post WWI Commission referred in its Report (p. 142).
- 154.
Only in 1949, shocked by the horrendous crimes of WWII, which for a long time had remained unpunished, states first undertook the obligation to pursue certain war crimes – the grave breaches of the four Geneva Conventions – according to the principle of universal jurisdiction.
- 155.
Allow me to quote myself: Lattanzi (2014). Currently, the crimes committed during a civil war, if linked with the conduct of hostilities are also labelled as war crimes rather than crimes against humanity. It is indeed by now indisputable that the conducts in the context of this kind of war are also covered by the “laws and customs of war”.
- 156.
Report of the Commission created by the Paris Peace Conference, p. 134.
- 157.
Report of the Commission created by the Paris Peace Conference, p. 135–136.
- 158.
Report of the Commission created by the Paris Peace Conference, p. 117.
- 159.
It is worth noting that the States who led to the Commission’s conclusion concerning individual criminal responsibility were important Powers such as UK, France, Japan and Italy (this latter certainly less important than the first two in absolute terms, but not from the point of view of it being the cradle of law).
- 160.
As reported by Dadrian (2010), p. 61, “In the immediate aftermath of the war, the highest authorities identified with the post-war Turkish Government, raised their voices to severely condemn the wartime treatment of the Armenians. In doing so, they remarkably used the term “crimes against humanity.” The Sultan, the highest authority, for example, used exactly these words when denouncing the crimes (Kanuni insaniyete karşi ika edilen ceraim).
- 161.
See above fn. 37. C. Tomuschat, a very authoritative German international law scholar, discussing on the principle nullum crimen sine lege in connection with the Nuremberg IMT trials, writes: “crimes against humanity have deep roots in the minds of all human beings. The Martens clause that refers to ‘the laws of humanity and the dictates of the public conscience’ may be referred to in this connection. There cannot be the slightest doubt that all the offences set out under the title ‘crimes against humanity’ are not only morally objectionable, but deserve to be punished and must be punished because of their abhorrent character if peaceful coexistence in human society is to be maintained. Nobody can legitimately claim that he believed that such actions in which he participated and that are to be classified as ‘crimes against humanity’ were perfectly lawful. The scope ratione materiae of the nullum crimen rule must accordingly be reduced.” Tomuschat (2006), p. 835.
- 162.
About this exchange the British Foreign Office declared: “It is in a measure yielding to blackmail, but seems justified by present conditions.” (quoted by Bass (2000), p. 142).
- 163.
Marchesi, in this Volume.
- 164.
On this Treaty and its relevance see below, Sect. 4.6.1.
- 165.
Something analogous to this form of individual criminal responsibility has for a long time been a part of international law in the matter of piracy, in order to protect, in this case too, a universal value (freedom of navigation). Most certainly, a perpetrator of a crime against humanity is, like as a pirate, hostis humani generis.
- 166.
This complementarity in favour of Ottoman jurisdictions could not work as that justice proved to be ineffective. This is the reason why the Sèvres Treaty envisaged a different solution. However, according to some deniers of the deliberate massacres and deportations, these proceedings would have been carried out under the “pressure” of the Entente Powers and this would prove that they were not genuine; furthermore, according to the nationalistic feeling of the Turkish people against these proceedings these would have been nothing but pure vengeance; in any case, they would have been conducted in violation of fair trial principles and in absentia; therefore the motivations contained in the records of these trials, as regarding the intent element in particular, would not be reliable: see in this vein the arguments developed by Lewy (2005b), p. 3 ff. First of all it is noteworthy that those who affirm the annihilation of the Armenian community do not base themselves only on the Courts Martials’ findings, as Lewy seems to assume. Furthermore, the arguments concerning the Courts Martials proceedings show how the historic truth can be distorted. The first argument is entirely false, given that any Ottoman tribunal should have needed to ascertain what happened: whether deliberate massacres organized by Ottoman agents or only criminal acts of private citizens – bandits, as alleged by Turkey - out of the police control. The second argument is equally false, in the first place because the people “feelings” also were instigated by the new rulers and, further, amongst such people there were at least a few hundred suspects of the massacres, who had “founded” reasons to be concerned about criminal proceedings, including because they feared being dispossessed of Armenian properties robbed or obtained gratis et amore Dei. Third, the fair trial argument, including the reference to the fact that some trials were conducted in absentia, is also ridiculous. The proceedings were certainly not conducted pursuant to the fair trials rules as presently in force and referred to in the Lewy “Revisiting” paper (he refers among other things to common law procedural rules, while in the Ottoman Empire civil law was in force!). But, according to an authoritative Author as Cassese (2009), “if appraised in light of the available translations and by the procedural standards of that period, those trials may be held to have been conducted in a sufficiently fair manner” (p. 250); furthermore, some trials were held in absentia because the accused had fled with the assistance of the Turkish rulers. Apart from this fact, it is noteworthy that such trials are still allowed – with certain guarantees of course that at that time did not yet exist - in some democratic civil law systems, as the Italian one, for instance. Why does Lewy not mention that some accused escaped justice with the complicity of the Turkish rulers instead of trying to discredit the truth ascertained by the Martial Courts through the vengeance argument? Finally, when underlining that “the British high commissioner in Turkey reported popular perception that “regard[ed] executions as necessary concessions to entente rather than as punishment justly meted out to criminals”, what does Lewy mean? That the British Commissioner shared the people perception (vox populi vox dei?)? Was not the Commissioner rather noting that people did not recognize what these proceedings were in fact, i.e. the “punishment justly meted out to criminals”? Otherwise why resort to the word “criminals”? Furthermore, if no witness was heard during the trials, as he alleges, why does he refer to lost depositions? And why does he not raise questions about “this loss”? And why should the deposition of General Vehib Pasha not be a proof of guilt if it was also present in the verdict of the Harput trial and not only in the indictment? How can he say that “The regime also used the Special Organization to suppress “subversion” and “possible collaboration” with the external enemy and then say that this Organization “played no role in the Armenian deportations”, when Turkey does not deny that deportations were used as a measure of suppression of the “subversion”? On the last pillar of his “Revisiting the Armenian Genocide” – the criticism towards The Memoirs of NaimBey –, on whose reliability I am totally unprepared, I can only note that the criminal orders given by Talât Pasha are not only referred to in these Memoirs. Rather, The Memoirs are corroborated on these orders by other sources, such as Morgenthau’s account and not only. As for the willingness of Talât Pasha – also evoked by Lewy - to consider interventions in favor of some Armenians by U.S. diplomats and missionaries this is confirmed also in Morgenthau’s accounts, where we even find an explanation for Talât’s attitude (the falsity of this attitude is revealing in the message quoted above, fn. 146). In any case, this is not an argument which can dismiss the numerous proofs of Talât’s involvement in the massacres and deportations. In conclusion, the Lewy’s “Revisiting” fails, in my view.
- 167.
Indeed, the Nuremberg and Tokyo Statutes only envisaged crimes against humanity connected with war crimes, i.e. with warfare. We had to wait until the ICTR Statute for a provision affirming the vindicatio in libertatem of crimes against humanity from warfare, even though relied to an extended discrimination context. While the conflict context still remained in the ICTY Statute. And in order to obtain an absolute and definitive vindicatio in libertatem we had to wait for the ICC Statute, which provides crimes against humanity also in a peace context. This was not the case in 1915–16. Thus the factual and legal link of the Armenian massacres and deportations with WWI is very relevant in view of the applicability of such category of crimes. This is a further reason for not confusing here the Armenian massacres of the end of the XIX and the beginning of the XX centuries, as well as the crimes committed after the war, with the massacres and deportations of 1915–16, at the peak of the war.
- 168.
Even if it did not contain a clear reference to the substantial applicable law, the title of Part IV seems to indicate that according to the negotiators, the Ottoman wrongdoing amounted to a violation of the specific minority protective regime created by the San Stefano and Berlin Treaties.
- 169.
The Ottoman Parliament was dissolved on the 5 April 1920 under the pressure of the occupying Entente Powers and the majority of its members were arrested and transferred to Malta for being accused of war crimes and Armenian massacres. The new Grand National Assembly started its first session on the 13 April 1920 in Ankara under the Turkish National Movement rule (the party of Mustafa Kemal). The Treaty of Sèvres was signed the 10 August 1920 by the delegation representing the Sultan, who was heading the “Constantinople government”. In fact, a revolution was under way.
- 170.
See Heinsohn (1998), p. 80. This book is a compilation of genocide lexicon following an alphabetical order, starting from A (Abdul Hamid II) until Z (Zwangssterilisation: forced sterilization).
- 171.
Those amputations were also based, in my view, on the wrong belief in the superiority of the Christian culture over the Muslim one. I am convinced that a lot of human tragedies have occurred also because Europeans and Americans believe that their culture – the Christian culture – is superior to others, as, after all, the Muslim-Turks also believed about their culture and religion at the time in which the massacres took place. It is significant that, when discussing about the exchange between more than 100 Turks with 22 Europeans, a member of the British Parliament expressed himself in the following terms: “I had to explain [to Parliament] why we released the Turkish deportees from Malta, skating over thin ice as quickly as I could … The staunch belief among Members [of Parliament] is that one British prisoner is worth a shipload of Turks, and so the exchange was excused” (quoted by Bonello (19 April 2012)).
- 172.
For the same approach to the Treaty of Sèvres see Verhoeven (1984), p. 277.
- 173.
The UNGA Res. 60/147 on the Basic Principles and Guidelines on the Right to Remedy and Reparation for Victims of Gross Violations of Human Rights Law and Serious Violations of International Humanitarian Law codifies international customary rules – at least insofar as the basic principles are concerned – on obligations/rights in the matter of reparation. See on this Resolution Latino, in this volume.
- 174.
These Countries were not only European. This is clearly confirmed by the intervention of US in favor of Armenians.
- 175.
Indeed, the obligations to prevent and repress any act in violation of international law on the territory under the States’ control is an expression of their sovereignty, which involves powers, but also obligations. And without doubt, these obligations existed at that time at least with respect to minority rights if not with respect to the rights of individuals as such. But, in my view, insofar as the violations of the laws of humanity are concerned, the obligations of their prevention and repression protected anybody.
- 176.
See supra, fn. 89.
- 177.
ICTY, Appeal Judgment, Tadic, 15 July 1999, para 131: “In order to attribute the acts of a military or paramilitary group to a State, it must be proved that the State wields overall control over the group, not only by equipping and financing the group, but also by coordinating or helping in the general planning of its military activity. Only then can the State be held internationally accountable for any misconduct of the group. However, it is not necessary that, in addition, the State should also issue, either to the head or to members of the group, instructions for the commission of specific acts contrary to international law.” From this point of view, it is relevant what Morgenthau was told by Enver Pasha about the control of CUP on the atrocities against Armenians. The commission of wrongful acts in violation of international law resulting from acts of its civil and military servants – who were at the top of a state-level organization or acted at the provincial and district levels -, who planned, ordered, instigated, led, aided and abetted, and executed the massacres was thus attributable to the Ottoman State.
- 178.
On the broad range of reparations in the “Armenian question” see Guibert and Kim (2016).
- 179.
So, for instance, the Holy Cross Armenian Church of Akhtamar Island (Lake of Van), erected between 915 and 921, looted during the Armenian massacres, as the monastic buildings then destroyed, have been restored in 2006.
- 180.
See on this, David Donat Cattin, in this volume.
- 181.
- 182.
Avedian (2012).
- 183.
As mentioned, for some details on the remedies to the partial destruction of Ottoman Armenians I refer to the contributions in this volume of Latino and Donat Cattin.
- 184.
In my final remarks I prefer to refer to the partial destruction of the Armenian community in 1915–16 by using the same expression used by the Armenians themselves, as a timid form of recognition of their reasons: Metz Yeghern (The Great Evil).
- 185.
Quoted in Robertson (2009).
- 186.
The present UK rulers should remember that David Lloyd George, the British Prime Minister during the Paris Peace Conference, referring to the Armenian massacres, wrote in 1939: “By these atrocities, almost unparalleled in the black record of Turkish rule, the Armenian population was reduced in numbers by well over one million … If we succeeded in defeating this inhuman empire, one essential condition of the peace we should impose was the redemption of the Armenian valleys forever from the bloody misrule with which they had been stained by the infamies of the Turk.” (Loyd George, Memoirs of the Peace Conference, Vol 2, New Haven: Yale University Press, 1939, p. 811).” In 1929, Winston Churchill, the then former War Minister, wrote: “In 1915 the Turkish government began and ruthlessly carried out the infamous general massacre and deportation of Armenians in Asia Minor … whole districts were blotted out in one administrative holocaust” (Winston Churchill, The World Crisis: The Aftermath, London 1929, p. 405).
- 187.
As reported by Morgenthau (1918), p. 128, Dr. Lepsius, a German missionary in the Ottoman Empire expressed to him “the humiliation which he felt, as a German, that the Turks should set about to exterminate their Christian subjects, while Germany, which called itself a Christian country, was making no endeavours to prevent it.” Morgenthau explains this German attitude, considering the meeting he had with the German Ambassador at Constantinople, in the following way: “Wangenheim pretended to regard the Armenian question as a matter that chiefly affected the United States. My constant intercession in their behalf apparently created the impression, in his Germanic mind, that any mercy shown this people would be a concession to the American Government. And at that moment he was not disposed to do anything that would please the American people.” (Morgenthau 1918, p. 142). Germany indeed had intervened at the beginning, albeit weakly, on a diplomatic level, under pressure by the US (but especially with the aim of objecting “to statements made by Turks throughout the interior that the anti-Armenian measures originated with the Germans”: see the correspondence on this démarche between Amb. Morgenthau and the US Secretary of State of 12 August 1915, Papers quoted supra fn. 77). Later, although being present with its Army on the Ottoman territory as a Power allied with the Empire, Germany witnessed massacres and deportations without lifting a finger to save the Armenians.
- 188.
This campaign was conducted from the 25 April 1915, when the news about the first massacres had already reached Europe and the U.S., until 9 January when the British Navy was definitively defeated at Gallipoli: see on the impact of this campaign Flores, in this Volume.
- 189.
Hitler speech on 22 August 1939.
- 190.
On the impact of external pressures on the dialogue between Turks and Armenians as well as on the Turkish democratisation process see the view of Açar and Rüma (2007).
- 191.
See above, footnote 26.
- 192.
Given that they are partially accessible in ancient Turkish language, Turkey would need to organize their translation for rendering them available to a vaster public.
- 193.
I have to confess that I cannot understand the denialist attitude of the Republic of Turkey (see on this attitude the observations of Chorbajian (2016)). Why don’t the Turkish authorities understand that such an attitude will only lead more and more experts to discuss these events and conclude that there was in fact an Armenian genocide? That this attitude will spread more and more increasing among people the awareness about the massacres and deportations, gradually leading every man, woman and child in the world, starting from the Turkish citizens, to know what in fact happened? For the truth this is fantastic, but the credibility of Turkey at the international level will gradually be lost, which is not in the interest of its government and its people. Why are honest Turks to feel uncomfortable in discussing about these events, as my personal experience has taught in discussing with a Turkish friend? Why don’t the Turkish authorities understand that by their attitude they harm their people? The doubt arises that they don’t care. They care more about hiding wrongdoings for which above and first of all the members of previous Turkish governments rather than the present ones - in any case not the Turkish people as such - are personally responsible. However, denying past Ottoman and Turkish authorities’ wrongdoings is a new violation of international law, as already noted.
- 194.
Akçam (2004), p. 252. Even if they were written in 2004, the quoted affirmations are still needed.
- 195.
Furthermore, the Armenian community needs to strongly condemn the acts of terrorist vengeance followed by some members of ASALA against Turkey’s representatives, just as the Turkish people has to take the courage, as some Turkish intellectuals do, to oppose the denialist attitude of their authorities.
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My paper is very long. This requires an explanation. When I started studying the “Armenian question”, I knew very little about it. Hence, no prior knowledge of facts influenced my analysis. I am a jurist, not an historian, and, therefore, I could not carry out a historical and documentary research myself. However, I needed to base my legal reasoning on some essential historical facts. I thus had to borrow data coming from available historical research with the ambition to be comprehensive. Given the enormous volume of materials that have been written on this controversial issue, I tried to make a balanced selection within the enormous amount of the historical and legal literature of both sides of the dispute. I needed to often refer to what I had read and to clarify why I found one position more reliable than another. This explains the length of the paper.
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Lattanzi, F. (2018). The Armenian Massacres as the Murder of a Nation?. In: Lattanzi, F., Pistoia, E. (eds) The Armenian Massacres of 1915–1916 a Hundred Years Later. Studies in the History of Law and Justice, vol 15. Springer, Cham. https://doi.org/10.1007/978-3-319-78169-3_3
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