De Zayas Details Turkey’s Obligations Based on UN Genocide Convention

By Aris Babikian

TORONTO–During a public gathering organized by the Armenian National Committees (ANC) of Canada and of Toronto–international law expert–historian–and former United Nations official on human rights Dr. Alfred De Zayas–elaborated on his recent legal memorandum about Turkey’s responsibility for the Genocide against the Armenia’s and about reparations to Armenia’s. The author–a new voice in the struggle to bring justice to the Armenian victims and to the Armenian nation–said in his groundbreaking speech that Turkey should provide restitution for its victims.

After welcoming guests–master of ceremonies Vahan Ajemian said– "We tend to focus on the historical aspects of the Genocide of the Armenia’s–and sometimes neglect to consider that as a criminal act–the Genocide of the Armenia’s also has legal consequences that need to be examined as well."

After a brief review of ANC activities in Canada–Ajemian invited ANC Canada representative Aris Babikian to introduce the guest speaker. "It is an honor and privilege for the ANC to invite Dr. De Zayas to shed light on his important research on Turkey’s responsibility for the First Genocide of the Twentieth Century vis–vis international law and treaties," said Babikian.

In addition to his legal memorandum–Dr. De Zayas has written a lengthy chapter titled "The Twentieth Century’s First Genocide: International Law–Impunity–the Right to Reparations–and the Ethnic Cleansing against the Armenia’s–1915-1916" in a recently published book–"Ethnic Cleansing in Twentieth–Century Europe" (Columbia University Press). In addition–Dr. De Zayas is the author of five books–including "Nemesis at Potsdam" and "A Terrible Revenge."

Based in Geneva–Switzerland–Dr. De Zayas (JD–Harvard University and Ph.D. University of Gottingen) teaches international law at several European and North American universities. After 22 years of service as Secretary of the United Nations Human Rights Committee–Dr. De Zayas retired recently.

Dr. De Zayas stressed that the 1948 United Nations Genocide Convention fully applies to the 1915-1923 genocide against the Armenia’s.

"Going back to the argument of the Turkish Government that the Genocide Convention of 1948 has no applicability to the genocide against Armenia’s–the fact is that the object and purpose of the Genocide convention–if you read the text–is to prevent and suppress genocide. Because its object and purpose is double–to prevent and suppress–you have the element of deterrents. It is necessary to deter future genocides by punishment and by restitution. It is imperative that the thief does not keep the booty; the thief should not keep the fruit of his crime. When we interpret the convention–this is the classical system of interpretation under international law–Article 31 of the Vienna Convention of the Law of Treaties–it obviously applies retrospectively and it has been applied retrospectively in the case of the Holocaust. The 1948 Genocide Convention–has been applied in the context of the Holocaust and not only directly but also indirectly–because on the basis of the Genocide Convention–a great many laws have been adopted by legislatures of countries such as Canada. You may remember Regina against Imre Finta–a Canadian case in which the Genocide Convention was applied retroactively through the incorporation into Canadian Law. And you have–of course–the famous trial against Adolf Eichmann in 1961 in Israel were the Genocide Convention was vindicated–if you want–better than in any other case clearly applied retrospectively. There have been other cases–of course–in the United States–Germany and France where thousands of Nazis and others suspected of involvement in the Holocaust have been brought to justice because of having committed genocide even if the term genocide did not exist in 1940-41-42-43."

He stressed that the genocide against the Armenia’s is not subject to a statute of limitations. While the obligation to punish the perpetrators can no longer be implemented because the perpetrators have died–the states’ responsibility to make reparations continues because genocide is a crime against humanity that is not subject to prescription in international law.

"There are two things that derive from a violation of international law. They derive quite independently from the Convention. You have state responsibility for an international wrongful act which means responsibility to grant compensation–restitution and then you also have the personal legal penal liability of the individuals," said the international law expert.

"What must be said is that even if we do not focus on the Genocide Convention as the one instrument to use to demand restitution and to demand compensation–you could rely on international law–what is termed delicta juris gentium– and you can rely on principles of general international law–principles of state responsibility that prior to the convention would have created a claim for the Armenia’s. As all international lawyers recognize–the Genocide Convention of 1948 was declaratory of preexisting international law. It did not create a new offense. What the Genocide Convention of 1948 brings that is new is mechanism. It has a provision that states will punish; I mean in affirmative duty. States should ferret out and punish persons suspected of genocide. It gives all states–parties to the convention–the right to address the United Nations and demand that the UN take appropriate action in connection with a genocide that has already happened or a threatened genocide. It also gives all state bodies the right to bring a case before the International Court of Justice," said Dr. De Zayas.

Even more interesting is that Dr. De Zayas said the Armenian people have the right to return to their historic homeland.

"I think it would be a very positive gesture for the Turkish Government to offer a possibility to return to the Armenian people–return to their territories–their thousand-year-old–two-thousand-year-old homeland in Turkey? This right to return has been recognized in the context of the Yugoslavia wars. The Dayton accords of Dec. 1995–recognized the right of the Bosnian Muslims to return in dignity and safety to their homes in Bosnia and Herzegovina. In the context of the Genocide in Rwanda–all Hutus and Tutsies were–of course–given the right to return to their homes–as the resolution says–in safety and dignity."

In concluding–he said–"if Turkey aspires to enter the European Union–if Turkey aspires to join the club–as a conditions sine non couan– can be expected that they apologize and that they make an offer of restitution. Something that I would consider in the context of UN activity would be very desirable– if in connection with the UNESCO–a major effort was made to rebuild and to restore the monumen’s of Armenian culture that are still dotting the countryside in Turkey. That would be a form of restitution that I think would be more meaningful and more worthy and more dignified than just offering money because you simply can not buy human lives with money and the enormous crime of Genocide perpetrated against the Armenia’s can not just bought with money.

"The apology is necessary–the gesture of the right to return is necessary–but the reconstruction and the restoration of the cultural heritage is probably even more important.

"I don’t think that it is that difficult–that hard–that impossible for the Turkish government to apologize. They don’t have the worry of punishing anybody because no official responsible for the Genocide against the Armenia’s lives these days–but they do have the responsibility to grant restitution."

Dr. De Zayas is a member of the New York Bar–a Fulbright Graduate Fellow–a member of the International PEN Club–and recently Secretary General of the French-Swiss PEN Club–and Senior Fellow–International Human Rights Law Institute at DePaul University–Chicago. Dr. De Zayas is member of the American Society of International Law; and International Association of Penal Law.

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