Risking A Split

BY Gerard Guerguerian and Robert Aydabirian

Violent events took place during president Serge Sargsyan’s visit to Paris. The same level of outrage was noticed in New York, Los Angeles and elsewhere. Disapproval stems from a majority of people, sometimes vehemently expressed. Disapproval gathered thousands of signatures against, and such convergence of points of view transcends traditional political cleavages, sometimes leading to a division between the communities and their representatives. Such rejection widely noticeable reflects a state of mind that deserves to be looked at and accounted for. The following pages deal with this task, bearing in mind that we, the authors, are clearly against the so-called “protocols”, which are reckoned to be the product of bad negotiations possibly resulting in serious splits, something that any legitimate representative should be aware of and avoid.

Relations with Turkey

We are strongly committed to opening the border and establishing good neighbourly relations with Turkey. The decision of closing the border was not made by Armenia since it was taken as a measure of retaliation owing to the Nagorno-Karabagh conflict, and, although blockade, being an act of aggression not endorsed by the Security Council constitutes a violation of international law, we still express our commitment to and support for the opening of the border.

Leaders of the Republic of Armenia

It is nobody’s purpose to cast doubt on the Armenianness of Armenia’s current leadership, and even less so to question them. The current Republic is subject of international law, thus the sole subject entitled to negotiate an agreement in its own name. The Republic could, if it wished so, broaden its representation by inviting members of the diaspora to take part in negotiations led by the Republic, yet, lack of doing so does not prejudice whatsoever its own right to negotiate directly. What it does prejudice, however, is the degree of legitimacy the Republic might lay claim to.

Current negotiation

The current negotiation perplexes more than one informed observer: the process was conducted without any consultation of the diaspora, even less so of the people of the Republic of Armenia, hence it enjoys a very low level of legitimacy. Moreover, the content of the document carries such compromises as to make our compatriots aware of the discrepancy between the relative positions of the parties engaged in the protocols that are to be ratified. Three major issues point up the result of this disputable and badly conducted negotiation:

Qualification of the events of 1915

In fact, dealing with the Armenian genocide issue from the angle of its « historical dimension » is starting to qualify it. Admittedly, elements given in the protocols are vague, and so is its way of tackling topics and their contents. However, two readings are possible: this paragraph of the protocols can either be read as containing a reference to the events of 1915 hence as the beginning of a qualification that will be endorsed by signing the protocols, or it can be read as not including any reference to the genocide issue, in which case it is impossible to comprehend the object of an “intergovernmental sub-commission”.

In order to understand the implication of the aforementioned readings, it is necessary to bear in mind that the International Court of Justice has acknowledged genocide to be a state crime (Bosnia and Herzegovina case, 2006). Any state involved in non prevention or non punishment of the crime of genocide, or in the crime itself, is held responsible for an international crime. Not only individuals can be decided guilty as was the case in Nuremberg or Tokyo, but a state altogether can be decided guilty towards the victims’ legal claimants. Legal responsibility entails redress of the inflicted damage; redress may take various forms from moral redress up to… restitution. Prevention and punishment of the crime of genocide, among the highest norms in international law, prevails on every other international law or treaty. Therefore, including genocide in a “historical” category, provided of course that the sub-commission indeed discusses it, ipso facto reduces its significance, hence its consequences. Thus, slavery is recognized as a superior international norm as well, and states involved in slavery are held responsible for it; yet, who would be willing or able to condemn Great Britain today for its practice of slavery back in the 17th century? One would be told that this belongs to history, in order to quell any process that might result in finding Great Britain accountable.

As a result, current leaders of the Republic of Armenia ought to assert clearly, publicly and definitely if they have the intention of including the question of the events of 1915 in the protocols. If they do not have such intention, they must undertake not to do it.

Border’s definition

The following point ought to be emphasized time and again since it is a poorly known fact that delimitation of borders with Turkey was subjected to international arbitration recorded in a document that constitutes the only valid legal document up to date since it has the authority of res judicata (“decided matter”) that prevails upon any other international document. In other terms, this arbitration has final value of legal dispute. The delimitation of borders recorded in the document has never been questioned, and in fact could not be questioned, owing to its aforementioned quality of final res judicata. Armenians have focused their activity on the Treaty of Sevres which was never ratified and thus has no legal existence, while there is such delimitation of borders that is still valid. Poorly known, the arbitration by President Wilson in 1920 has been disregarded as a mere delimitation of borders as compared to the creation of a state contained in the Treaty of Sevres. Recognition of prior treaties required in the protocols, including the Treaty of Kars, means endorsing a new delimitation of borders, a “radical change” evoked by Professor Sur in a recent interview in “Nouvelles d’Arménie” (French monthly of the Armenian community). One should wonder: what do we gain by recognizing the Treaty of Kars in exchange for opening a border whose very closing was illegal in the first place? It is nothing more than a fool’s bargain to renounce a larger delimitation, with no compensation, in exchange for opening a border that the other party had no right to close…

Right of self-determination

The Republic of Armenia is, since 1991, a subject of international law, meaning that it is recognized by the community of states, has as much right to act as other recognized states, and has the same rights and duties. Thus, the Republic takes part, for a number of reasons, in the international negotiation process on the Nagorno-Karabagh conflict. The republic of Mountainous Karabagh does not enjoy the same status, and accordingly was not included in the process, for fear that such an inclusion might trigger the start of international recognition of the Mountainous Karabagh Republic.  The protocols reassert well known and accepted principles laid out in the United Nations Charter: territorial integrity, equality of states and non interference in internal affairs. This reassertion is neither new nor objectionable since the Republic of Armenia is a signatory of the UN Charter. The real problem lies in what is not said: another norm, as well known and recognized by international jurisprudence as a superior norm (ICJ, East Timor case), the right of peoples to self-determination, is not mentioned. It appears as though the Republic of Armenia is confirming that self-determination does not need to be raised with its neighbours while reasserting its acceptance of non interference in internal affairs. As a result the very s
tate that is a chief negotiator in the Nagorno-Karabagh conflict and the only one that can represent its claim is in fact declaring that the question of self-determination does not need be raised, and thus resigning from its role of negotiator and leaving Armenians of Mountainous Karabagh to face Azerbaijan alone. Why is this renouncement made? And what does such renouncement have to do in a matter of borders’ opening?

It is obvious that these now infamous protocols go far beyond the necessary and gives the lion’s share to Turkey. Questionably negotiated and poorly prepared, they can only arouse defiance and suspicion. Defiance can only be greater in the diaspora since diaspora alone has been at the vanguard of genocide recognition, a struggle that has an important share in diasporan identity, in addition to supporting the struggle for independence of Nagorno-Karabagh. To tell the diaspora that it has been struggling in vain and for nothing is to make a little thing of this diaspora and to disdain it, thus widening the gap that already exists between the diaspora and its compatriots in Armenia. Here lies a real concern and reason of our opposition.

Editor’s Note: Gerard Guerguerian is an international lawyer and Robert Aydabirian is the founder of the Armenian Observatory in Paris

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2 Comments

  1. John Keusseyan, Lt. Col USAF (RET.) said:

    Excellent article. I am not a lawyer but everything the authors are telling us make sense. Why our leadership in Armenia did not consult with people like these. Who the president of Armenia is consulting with? They are either incompetent or they have personal interest in all this.

  2. Alem said:

    I second Colonel’s opinion of the article, very well done. I do, however, have a question in regards to: “… International Court of Justice has acknowledged genocide to be a state crime (Bosnia and Herzegovina case, 2006). Any state involved in non prevention or non punishment of the crime of genocide, or in the crime itself, is held responsible for an international crime.” Obviously the case you are speaking of is Prosecutor v. Krstic (ICTY). A guilty verdict that held him responsible for multiple crimes against humanity and more importantly, genocide. However, I am not aware of any state being held responsible. It was several years earlier in the Prosecutor v. Milosevic case that he was guilty of genocide, unfortunately he died before a verdict could be delivered, so Serbia got away. Serbia also got away from being held responsible during ICJ’s case where BH sued Serbia over responsibility of committing genocide, as ICJ handed down a verdict of “Serbia did nothing to prevent it from happening…”. Now, I am not aware because of this verdict that Serbia is in fact held responsible of any crime directly relating to genocide. I would really appreciate a response. Thank you very much. Best regards.

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