Red herrings in Turkish-Armenian Debate

Gerald Knaus and Piotr Zalewski

On 15 December 2008, shortly after several Turkish intellectuals launched a public apology campaign to commemorate the victims of the “Great Catastrophe” of 1915, a group of 146 retired Turkish ambassadors issued a counter-declaration. “Today, Armenian terror has completed its mission,” it lamented. “We are aware that the second phase of the plan includes an apology and the next step will be demands for land and compensation.”

The ambassadors’ response is emblematic of the sort of fears that we have come across during our research for “Noah’s Dove Returns”, a recent ESI paper on Turkish-Armenian relations. As many of our Turkish interlocutors told us, recognition of the Armenian genocide, whether in Turkey or abroad, not only threatens to undermine “Turkish prestige and honor”; it also throws into question the current Turkish-Armenian border and paves the way for compensation and restitution claims against the Turkish government.

We disagree that Turkish national prestige is at risk in this debate. The growing number of third country resolutions on the Armenian genocide since 2000 has done nothing to dent Turkey’s international standing. On the contrary: the same period has seen Turkey open accession talks with the EU, secure a non-permanent seat on the UN Security Council (the first time since the 1960s), attract rapidly growing levels of foreign investments, and win widespread international praise for its domestic reforms and foreign policy initiatives. Meanwhile, the widening domestic debate on Turkey’s difficult past is boosting both Turkey’s democratic image and its chances for EU accession. A Turkey that comes to terms with its Ottoman past, evidently, stands to win – not lose – international prestige.

The question of territorial claims is another red herring in the recognition debate. Though it has been on the agenda of a vocal nationalist minority in Armenia (and in the diaspora) for decades, border revision has never been part of any Armenian government’s policy. The nationalists’ claims, based on the never-ratified Treaty of Sevres, have not managed to secure any international support. Normalization of ties between Turkey and Armenia, in any case, would put them to rest once and for all. (This, in fact, is exactly why some Armenian nationalists have had second thoughts about opening relations with Turkey.)

The third argument – that recognition, be it by countries in the EU, the US or by Turkey itself, will allow Armenians to sue the Turkish government – is also widespread. Not because it is true; but because many people believe that it involves complicated and ambiguous points of international law. This is not the case, however.

To begin with, the Armenian genocide has by now been officially recognized by 20 countries. If recognition is meant to pave the way towards restitution, these countries’ courts must surely be flooded with Armenian lawsuits? Not at all. In fact, not a single genocide-related claim has successfully been made against the Turkish government anywhere in the world – this, despite genocide resolutions having been passed in countries like France, Germany and Russia.

The European Parliament, in its 1987 resolution, even took pains to explain why. As it stressed, “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.” The only international framework under which such claims could theoretically be pursued, the 1948 UN Convention on Genocide, cannot be applied retroactively. There is no serious disagreement on this point. The findings of a 2002 study on the “Events” of 1915 by the International Center for Transitional Justice are unambiguous:

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.”

In only one instance have legal claims proved successful – and even then they had no link to genocide recognition or the Turkish state. Over the past few years, a number of insurance companies have had to pay compensation to those Armenians whose relatives, having purchased insurance policies before 1915, perished in the genocide. But it was the companies themselves – and not the Turkish government – who were the defendents in these cases. The claims had nothing to do with the Turkish state. Also, despite Armenian protestations, the courts found the question of what to call the events of 1915 completely irrelevant. They were dealing not with terminology, but with individual property claims.

Even Armenian leaders have publicly acknowledged that genocide recognition has no impact whatsoever on the claims issue. It is not that Armenians have forsaken pursuing legal consequences, explained Armenian president Robert Kocharian in a 2001 interview with Mehmet Ali Birand. It’s just that these have nothing to do with whether or not Turkey or another state recognizes the genocide. “The issue is that genocide recognition does not create the legal bases to allow Armenia to present certain demands before Turkey,” said Kocharian. “I am surprised that Turkish attorneys themselves have not provided the Turkish government with such counsel and such an assessment.”

All this is not to say that restitution or compensation by the Turkish state is impossible. Armenians could, in theory, file claims against the Turkish government – but only in Turkish courts, and only if Turkey adopts a binding legal act allowing them to do so. The jurisprudence of the European Court of Human Rights in the area of property restitution confirms this. 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.”

All of these cases, across a number of different jurisdictions, point to the same conclusion. There is no connection whatsoever between genocide recognition on the one hand and property restitution or compensation claims on the other. There is, in other words, no slippery slope leading from a non-binding US Congressional resolution to a successful lawsuit against the Turkish state to – as some of our interlocutors in Ankara seem to believe – the confiscation of THY planes at American airports. Turkish decision makers and opinion leaders should make it clear that such fears are a red herring. Dodging this conclusion – and giving unsubstantiated rumours free rein – threatens to make serious and honest discussion of Turkey’s Armenia policy even more difficult than they already are.