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Genocide and restitution

7x77
On 24 April 2005, a group of men and women – many of whom were descendents of survivors –
marched onto the desert to commemorate the Armenian genocide. Photo: 7x77 project

"First, the Turkish Republic is to state that there was an 'Armenian Genocide' and to apologize for it. Second, the Turks are to pay reparations. Third, an Armenian state is to be created […]. Then they will demand the Turks give Erzurum and Van and Elazig and Sivas and Bitlis and Trabzon to Armenia."

Justin McCarthy

"Today, Armenian terror has completed its mission. We are aware that the second phase of the plan includes an apology and the next step will be demands for land and compensation."

Declaration of the Retired Ambassadors' Group Regarding the "Apology to Armenians" Campaign

The link between recognition and restitution is one of the red herrings in the genocide debate. International law makes it clear that there is no connection between genocide recognition (by Turkey and/or third countries) and restitution or compensation claims against the Turkish government.

The jurisprudence of the European Court of Human Rights in the area of property restitution the Court having heard an increasing number of cases since the transition from communism to democracy in Eastern Europe makes it clear that Armenian survivors and/or their relatives could pursue compensation or restitution claims only if the Turkish state were to establish a legal base allowing them to do so.

As the ECHR has ruled, "For a claim to be capable of being considered an 'asset' […] the claimant must establish that it has a sufficient basis in national law, for example where there is settled case-law of the domestic courts confirming it, or whether there is a final court judgement in the claimant's favour." (See Draon v. France [GC], no. 1513/03, 68, 6 October 2005, ECHR 2005-IX, and Burdov v. Russia, no. 59498/00, 40, ECHR 2002-III)

Armenian claims, in other words, can only be pursued through the adoption of a binding legal act by the Turkish state and/or by way of lawsuits before Turkish courts. William Schabas, an influential international law expert, takes a similar line:

"As a general rule, it will be the citizens of the perpetrating State who will be the victims of the genocide. For example, nobody but Turkey can invoke international law before the International Court of Justice in order to claim the right to compensation for the genocide of the Armenians, something it is hardly likely to do. Of course, this does not prevent states from offering some form of relief to their own nationals who have been victims of genocide. Germany, as a matter of national policy, continues to provide compensation to Jewish survivors of the Holocaust."

On 29 January 2001, famed journalist Mehmet Ali Birand sat down for a one-on-one interview with Armenian President Robert Kocharian. The discussion centred on the link (or rather, the lack thereof) between genocide recognition, property restitution and compensation. President Kocharian's arguments highlighting the fact that genocide recognition will in no way lead to or facilitate Armenian property or land claims are compelling enough to be quoted at length.

"For Turkey, recognition of the Armenian Genocide will not necessarily lead to legal consequences regarding the Republic of Armenia […] The Republic of Armenia will not have the legal basis for making such demands. The question is not whether we do or don't desire to raise this issue, or whether I do or don't have such a desire. The issue is that Genocide recognition does not create the legal bases to allow Armenia to present certain demands before Turkey. I am surprised that Turkish attorneys themselves have not provided the Turkish government with such counsel and such an assessment."

"Political parties, including influential ones, can have such demands in their programs, but I repeat, it is not Turkey's recognition of the Genocide that will create legal consequences in this case, the consequence being demands by Armenia. It is another matter whether the descendants of the victims of the Genocide can attempt to resolve compensation issues, in certain matters, through the courts. But I repeat, they can do that today as well. It is not the recognition of the Genocide that will lead to such consequences."

"The problem is that those events have taken place in Turkey, and the Republic of Armenia did not exist at that time, and today's Republic of Armenia is not the heir to those lands. I don't know under what system I can present a complaint, saying that "certain events transpired there, and you must give me those lands." I can't imagine how I am to make that formulation."

It is not that Armenia has forsaken pursuing legal consequences (such as compensation or restitution), explains Kocharian. It's just that these have nothing to do with whether or not Turkey or another state recognises the genocide. As far as territorial issues are concerned, these could only be pursued under the framework of the Treaty of Sevres which, as Kocharian acknowledges, is a dead letter, having never entered into force.

"Territorial issues can arise only within the framework/provisions of the Treaty of Sevres which was never been enforced, in any case. However, I repeat, these issues exist on different planes."

"The question of genocide recognition is not directly tied to the Treaty of Sevres, genocide recognition will not in any way revive it. And, on the contrary, if Turkey recognizes the Genocide, and actually apologizes to the Armenian people, then I am convinced that this atmosphere of relations, this process will evolve completely differently."

"If in Turkey there is concern that genocide recognition, or that generally a more temperate, balanced approach to this matter can bring about such consequences, then I am saying that such consequences will not result from such a solution to the problem."

An International Center for Transitional Justice (ICTJ) study commissioned by the Turkish Armenian Reconciliation Commission (TARC) in 2002 is just as unambiguous on the issue. Although the events of 1915 had "all the elements of genocide", it concludes, they cannot give rise to any legal, financial or territorial claims under the 1948 Genocide Convention.

"International law generally prohibits the retroactive application of treaties unless a different intention appears from the treaty or is otherwise established. The Genocide Convention contains no provision mandating its retroactive application. To the contrary, the text of the Convention strongly suggests that it was intended to impose prospective obligations only on the States party to it. Therefore, no legal, financial or territorial claim arising out of the Events could successfully be made against any individual or state under the Convention."

The European Parliament has made this clear, as well. In an 18 June 1987 resolution "on a political solution to the Armenian question", the EP recognized

"that the present Turkey cannot be held responsible for the tragedy experienced by the Armenians of the Ottoman Empire and stresses that neither political nor legal or material claims against present-day Turkey can be derived from the recognition of this historical event as an act of genocide"

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