1. Introduction
In 1984, the Permanent Peoples’ Tribunal convened in Paris for a Session on the Genocide of the Armenians (the Paris Tribunal).Footnote 1 The Permanent Peoples’ Tribunal is not a state-based court but a civil society initiative established in Bologna in 1979.Footnote 2 It aims ‘to bring justice to peoples who, according to international law and especially to the Statute of the International Court of Justice, are deprived of access to interstate judicial institutions’.Footnote 3 At the request of three non-government organisations, the Tribunal examined whether the deportations and massacres of Armenians in the Ottoman Empire in 1915 constituted ‘genocide’ and the consequences of such a finding.Footnote 4 In his opening speech, Tribunal President François Rigaux stated: ‘One might, in fact, be surprised that at this moment when in all parts of the world the rights of so many peoples are so brutally repressed, the Tribunal decided to take into consideration events which, in essence, belong to the past.’Footnote 5
The Paris Tribunal was held in 1984, the year before the seventieth anniversary of the events in 1915 that formed the subject of its inquiry. Like the Permanent Peoples’ Tribunal hearing on The Conquest of America and International Law,Footnote 6 it dealt with historic events and their continuing implications for peoples and for international law. Any individuals who might have been accused of crimes were long since dead. No official court would have had jurisdiction to deal with the issues.Footnote 7 Another peoples’ tribunal, the Tokyo Women's Tribunal held in 2000, investigated both individual criminal responsibility and the state responsibility of Japan for the system of sexual slavery established by Japanese armed forces in countries it had colonized and occupied from 1933 until 1945.Footnote 8 Like the Tokyo Women's Tribunal, the Paris Tribunal aimed to consider state responsibility and to recognize the ongoing impact of past events.
This article locates controversies over the Armenian genocide in debates about the relationship between history and international law. The ‘historical turn’ in international law is particularly pronounced in critical approaches to international criminal law, as international criminal tribunals ‘have already played a major role in establishing the parameters of official history.’Footnote 9 In 1919 the Istanbul trials and the numerous commissions of inquiry that preceded and accompanied them investigated the responsibility of individuals, rather than of the Ottoman Empire, for the deportations and massacres of the Armenians in 1915–16.Footnote 10 This is contrary to what happened in Germany at the end of the First World War, where individual criminal trials were eschewed in favour of collective punishment of a society through punitive reparations and the cession of territory.Footnote 11 As successor state to the Ottoman Empire, Turkey's denial that the state is responsible for genocide against the Armenians in 1915 remains a continuing source of tension in Turkey's international relations, especially with Armenia, as well as within Turkey.
So what can an international lawyer contribute to the ‘history wars’ over the Armenian genocide? This article aims to investigate the debates over how archives are used in official and unofficial tribunals that dealt with the genocide of the Armenians and to explore how these tribunals themselves can be viewed as creating archives. First, the article compares how international criminal tribunals and peoples’ tribunals engage with history. It examines what roles archives play in mediating the relationship between law and history and suggests ways of reading the archives, both along and against the grain. Second, it applies the distinction made by Louis Joinet between archives of the oppressors and archives of the oppressed to the records of the events of 1915. Third, it evaluates the extent to which the findings of the Istanbul trials can be considered as archives. It then considers the decision of the Paris Tribunal as archive. Finally, it outlines the contested historiography of the Armenian genocide and disputes between historians and international lawyers regarding who is entitled to pass judgment on the past.
2. History, law, archives
In the past two decades, international lawyers have demonstrated a renewed interest in history.Footnote 12 Of course, for some international lawyers, particularly of the Third World Approaches to International Law (TWAIL) school, the history of imperialism is ever present as it structures international law today.Footnote 13 The challenge of dealing with the past is particularly present in the sub-discipline of international criminal law.Footnote 14 But even where the focus is consciously on the accused, international criminal courts and tribunals produce an account of history as a by-product, as it were, of the legal process. The key question is ‘not whether to make history but rather what sort of histories to make, or what sorts of histories are made by international criminal tribunals.’Footnote 15 What sort of history to make is also an important consideration for peoples’ tribunals, which have been seen as ‘unofficial truth projects’.Footnote 16 As Sullo notes, ‘[l]awyers and historians are deeply involved in the process of truth-seeking, truth-teaching, and, sometimes, “truth-freezing”.’Footnote 17 Peoples’ tribunals sometimes consciously set out to produce a counter-history to that produced by an official court or tribunal.
Gerry Simpson sets out three aspects of the problem of dealing with history that confronts international criminal trials that I consider in relation to peoples’ tribunals.Footnote 18 The first is the subject of history, or the question of individual agency in history. Peoples’ tribunals often consider collective or state responsibility where official courts and tribunals have dealt only with the issue of individual criminal responsibility. The International Criminal Tribunal for the Former Yugoslavia and the International Court of Justice dealt respectively with both individual and state responsibility for the Bosnian genocide.Footnote 19 By contrast with international criminal tribunals, peoples’ tribunals rarely consider the culpability of individuals.Footnote 20 Concerns about defamation proceedings against the organizers are one reason why peoples’ tribunals rarely pronounce on individual guilt.Footnote 21 However, peoples’ tribunals are philosophically committed to providing a forum for considering state responsibility where, for legal or political reasons, international jurisdictions do not. Peoples’ tribunals are often associated with left-wing social movements and may be more open to collective explanations of social forces than state courts focused on individual responsibility.Footnote 22 In addition to focusing on ‘peoples’ as subjects of international law and as victims of state crime, peoples’ tribunals indict systems such as ‘the global economic/world trading system’, and its actors, corporations.Footnote 23 In this, they owe a debt to Marxist political economy analysis, rather than focusing on individual agency, in an effort to explain historical events.
Second, tribunals tend to write history as a linear narrative rather than as a fragmented, chaotic social history.Footnote 24 Peoples’ tribunals often see themselves as writing a history of peoples from below. Given that their protagonists are groups (peoples) and their concern with state responsibility, peoples’ tribunals might be expected to produce history seen as the result of collective rather than individual agency. Instead, the histories produced by peoples’ tribunals typically formulate a linear narrative of oppression by named agents, albeit legal, rather than natural, persons such as states, corporations and international financial institutions. At the same time, peoples’ tribunals also seek to acknowledge the agency of the groups of people at whose initiative the peoples’ tribunal was held. In international criminal law, arguments made by the party against whom the court ruled and dissenting judgments may produce plural histories.Footnote 25 By contrast, in peoples’ tribunals, defendants are usually invited to appear but they rarely do, in which case lawyers may be appointed or documents included to present the case for the defence.Footnote 26 Further, in peoples’ tribunals, dissenting judgments are almost unknown and separate opinions rare,Footnote 27 with one criticism of peoples’ tribunals being that the matter has already been decided before the case is even heard. Modern peoples’ tribunals see themselves as providing a necessary counter to state propaganda that blankets mass media, as evidenced by references to preventing the crime of silence in the reports of the 1967 Bertrand Russell Tribunal and the Paris Tribunal.Footnote 28
Third, if justice and history belong to the victors,Footnote 29 peoples’ tribunals see themselves as challenging this hegemony by writing a history of the oppressed. International criminal tribunals may not be ‘self-evidently hegemonic’ as ‘international criminal justice seems overwhelmingly committed to promoting the rule of law or the idea of humanity against hegemonic ambition or sovereign vanity.’Footnote 30 It is on this point that peoples’ tribunals diverge most sharply from international criminal tribunals. Peoples’ tribunals adopt a range of positions on ‘mainstream’ law. These vary from peoples’ tribunals seeing themselves as overcoming jurisdictional gaps or political problems that prevent the consistent application of law to including an explicit project of developing ‘peoples’ law’ through civil society and independently of states.Footnote 31
The relationship between peoples’ law and peoples’ history can be usefully explored through the concept of the archive.Footnote 32 The etymology of the word ‘archive’ refers to both law and history. In 1984, the same year as the Paris Tribunal, French philosopher Jacques Derrida delivered his lectures Mal d’Archive, translated into English as Archive Fever, in London. Derrida recalls that the English and French words ‘archive’ derive from the Greek arkhe, which ‘names at once the commencement and the commandment’:Footnote 33
The archons [superior magistrates] are first of all the documents’ guardians. . . They have the power to interpret the archives. Entrusted to such archons, these documents in effect speak the law: they recall the law and call on or impose the law.Footnote 34
Archive Fever provides a psychoanalytic reading of the concept of the archive. The archive is a fetish: not the real thing but a constructed artefact. The constructed nature of archives, and the way in which archives are used by hegemonic powers for political control, is critical to other readings of archives, where the relationship between law and history is constantly reinforced.Footnote 35
One way of reading the archive is to read along the archival grain. Understanding the institutions that an archive was created to serve is important to interpreting it.Footnote 36 In discussing the Netherlands archives of the Dutch East Indies, Ann Laura Stoler argues that the imperial archive was ‘the supreme technology of the late nineteenth century imperial state’Footnote 37 and that ‘archives produced as much as they recorded the realities they ostensibly only described.’Footnote 38 The constructed and political aspects of archives are more apparent where archives are created by imperial powers to maintain control over their subjects.Footnote 39 As archives are created by different institutions for different purposes, the institutions that created the Istanbul Military Tribunals and Paris Tribunal shed light on the records they created.
In reading the archive, it may also be useful to read against the grain. Gayatri Spivak's reading of the British colonial archives on the practice of sati is instructive here, as well as providing insights into the relationship between law and history. Spivak is notable as a member of the Subaltern Studies collective of historians of India, one of whose projects was to write history from below.Footnote 40 In her 1985 article, ‘The Rani of Sirmur: an Exercise in Reading the Colonial Archive’, Spivak reads the colonial archive for traces, gaps, and silences. Her admonition to consider ‘[a]s the historical record is made up, who is dropped out, when, and why?’Footnote 41 is useful in reading official histories, for it may produce dissident readings.
3. Archives of the oppressors v. archives of the oppressed
In this article, I compare the archives used, and created, by the Ottoman Military Tribunals that conducted the Istanbul trials and a peoples’ tribunal (the Paris Tribunal). Archives are key to the question of genocide, whose perpetrators aim to leave no witnesses to their crime and to remove all traces of evidence.Footnote 42 In thinking about these institutions, I explore Louis Joinet's distinction between the archives of the oppressors and those of the oppressed. Joinet's article ‘The role of archives in the fight against impunity’ was published in 2003 while he was UN Special Rapporteur on promotion and protection of human rights in the fight against impunity.Footnote 43 He defines ‘archives of the oppressors’ to mean:
those which, through daily sedimentation, are collected by authoritarian or dictatorial states to monitor the movements of guerrillas or even their opponents, dissidents or human rights activists, and to organise their persecution, without forgetting the archives of management of repression (archives of prison records, logistical inventories).Footnote 44
He provides the examples of the secret police and intelligence service files such as those of the Stasi in East Germany, the KGB in the Soviet Union, and the Condor Plan to coordinate repression exercised by military dictatorships in the southern cone of Latin America.Footnote 45
Joinet defines the ‘archives of the oppressed’ as ‘patiently collected, sometimes at risk of death, by human rights activists, to support the cause of the persecuted and to aid them’.Footnote 46 Examples include UN human rights archives, asylum seeker applications, and the judgments of peoples’ tribunals. Joinet was involved in six sessions of the Rome-based Permanent Peoples’ Tribunal as well as with the Delgado Tribunal in Portugal.Footnote 47 In 2003 Joinet considered peoples’ tribunals to be in danger of disappearing in view of the establishment of the International Criminal Court.Footnote 48 He argued that archives of both the oppressors and of the oppressed must be preserved: the former, ‘to prevent revisionism and to retain proof for the day when a judicial process may intervene’; the latter as ‘the history and therefore the memory of oppression of a people [which] is part of its heritage and as such, must be preserved.’Footnote 49
Is there really a need to create and preserve ‘archives of the oppressed’ separately from ‘archives of the oppressors’? Stoler reads along the archival grain to ask what purposes and institutions archives are created to serve. By contrast, Spivak urges us to read against the grain for what is dropped out, when, and why. However, in many cases, the archives of the ‘oppressors’, as well as others who might be considered neutral or indifferent, provide enough damning evidence to obviate the need to create archives of the oppressed. As a result, archives created by the oppressors are classified as top secret and are often difficult to access.Footnote 50 Yet their potential use as evidence in legal proceedings puts them at risk of destruction in times of revolution and crisis.
So how then does Joinet's distinction between the archives of the oppressors and archives of the oppressed apply to the treatment of the Ottoman Armenians in 1915? On this question, the archives of several states, including former empires, are potentially available, yet not all of them can be considered to be archives of the oppressors of the Armenians.Footnote 51 As Michelle Tusan notes, at the end of the nineteenth century in Europe, empire was ‘the primary geopolitical unit under which most people lived.’Footnote 52 First among the archives relevant to the question of genocide, and most contested, are the Ottoman archives. Given their importance, they will be discussed in greater detail below. Second, the German and Austro-Hungarian Empires, wartime allies of the Ottomans, recorded important information about the displacement and massacre of the Armenians through their military and diplomatic agents.Footnote 53 Fighting against these central powers were the Entente powers of the Russian Empire, the British Empire, and the French Republic.Footnote 54 In addition, the diplomatic memoirs and military reports of the US, which was neutral until 1917, are available.Footnote 55 The archives of Scandinavian countries, also neutral during the Great War, provide a window onto events free of charges of war propaganda levelled at Central Power archives or the suspicion of incompleteness like the Ottoman archives.Footnote 56 Unofficial sources include despatches from journalists, letters from Christian missionaries and humanitarian organisations, such as the Red Cross, that documented atrocities against the Armenians.Footnote 57 Some of the documents clearly qualify as archives of the oppressed within Joinet's definition. The validity and use of archives have been hotly contested in relation to the Armenian genocide, so I examine whether Joinet's distinction between the archives of the oppressors and the archives of the oppressed is sustainable in this context.
Access to and interpretation of the Ottoman archives is a key point of difference between those ‘taking sides’ in the history wars. On one side, historians who consider that what occurred in 1915 did not amount to genocide argue that the Ottoman archives are comprehensive, complete, and accessible and that they do not reveal evidence of genocidal intent on the part of the state. Turkish diplomat Güçelü adopts this view.Footnote 58 Güçelü refers also to the records of the Turkish Historical Society in Ankara and the National Library which he says are open to the public, unlike Armenian records located in the US, the Armenian Patriarchate in Jerusalem, and the Catholicosate in Armenia, which ‘remain closed to non-Armenian researchers.’ By contrast, ‘[d]iplomatic records, such as those cited by Armenian historian Vahakn [sic] Dadrian, as the basis for discussions among genocide scholars are spotty and intertwined with wartime politics.’Footnote 59 For example, Britain's national archives which contain:
much material from the British occupation of Istanbul (1919–22) and elsewhere in Anatolia following World War I remain closed to researchers under the Official Secrets Act and are only partially available in the archives of the government of India in Delhi.Footnote 60
However, other historians contend that the Ottoman archives do not contain a complete record of government decisions or actions relating to the events of 1915 and that it is therefore necessary to refer to Armenian and foreign sources. Ara Sarafian argues:
the promise of Ottoman records on the events of 1915 was a ruse to displace discussions of European and American sources on the Armenian Genocide, and to recast the debate in terms of Ottoman archives, which would remain under the direction of Turkish state authorities.Footnote 61
Orders from the central government have been used as evidence of state responsibility for the events of 1915. The debate has centred around a dispute about the existence of cipher telegrams as well as disputes about their interpretation. Dadrian refers to revelations in Parliament before the trials indicating that there was ‘a system of two-track transmission of orders . . . overt, official order and secret circular.’Footnote 62 Evidence in the Key Indictment of the Istanbul trials included ‘twelve cipher telegrams, four regular telegrams, and ten signed statements’.Footnote 63 However, the Minister of Post and Telegraph testified that ‘upon the orders issued by the General Headquarters, he had “absolutely” completely burned all cipher telegrams’.Footnote 64 Despite deliberate destruction of the evidence, some pieces randomly survive and potential defendants sometimes provide evidence to incriminate others.Footnote 65 The meaning of terms in the cipher telegrams is also disputed. There is disagreement as to whether references to ‘deportation’ are code for ‘annihilation’,Footnote 66 or evidence of the personal interest taken by Interior Minister Talaat Pasha in the resettlement and wellbeing of deportees.Footnote 67 There is even dispute over whether the controversy is best resolved by a joint commission of Armenian and Turkish historians and other experts, as suggested by former Turkish Prime Minister, now President, Recep Tayyip Erdoğan,Footnote 68 or by a judicial commission to review the massacres of 1915, which was the original recommendation of Minister for Europe Dennis McShane.Footnote 69
Joinet's arguments about the challenges of preserving evidence in times of revolution and political change aptly describe the controversies over archives documenting the events of 1915. However, it is more difficult to ascribe neat categories of ‘archives of the oppressors’ and ‘archives of the oppressed’ to the historical records of these events. Issues which in other contexts might be considered facts, such as whether the archives are complete and accessible, are hotly contested, particularly in relation to the Ottoman archives. The interpretation of such documents is subject to even greater dispute. The Istanbul trials might be categorized as proceedings before an imperial tribunal that created archives of the oppressors, with the Paris Tribunal clearly aiming to create, and explicitly considered by Joinet as, an archive of the oppressed. The existence of official archives created by the military and diplomatic representatives of neutral states such as the US, Denmark, and Sweden, combined with the unofficial reportage of journalists, religious and humanitarian workers from neutral and Allied powers, represents a rich resource that can be used to fill in gaps or clarify the ambiguity of the archives of both oppressors and oppressed.
4. The Istanbul trials
In addition to using official archives discussed above, the judgments of war crimes tribunals create archives and official (and unofficial) versions of history. After the war, the Ottoman government held several commissions of inquiryFootnote 70 and a series of national courts martial.Footnote 71 Military tribunals had been operating due to the state of martial law in the Ottoman Empire since 1909. Beginning in 1919, several military tribunals were established in order to prosecute the deportation and massacres of Armenians, ‘with twelve different military tribunals operating in Istanbul alone’.Footnote 72 National proceedings tracked volatile contemporary political developments with the Ottoman government in Istanbul losing power to the competing nationalist government in Ankara by November 1922.Footnote 73 During this time the tribunal was subject to major personnel changes, changes in its jurisdiction and eventually disbanded. Several of its judges were prosecuted and jailed for the decisions they had rendered. The former Istanbul Military Tribunal president, General Mustafa Pasha, also known as Nemrud the Kurd, said that he considered it ‘an honour to be tried by the court martial’ in the circumstances.Footnote 74 Several Ottoman leaders were found guilty and sentenced to death; however, with Turkish popular opinion strongly against the Istanbul trials and Damid Ferid's government, those executed were hailed as martyrs.Footnote 75 Two key Ottoman leaders found guilty and sentenced to death in absentia were assassinated in Berlin by Armenians, who referred to the findings of the Istanbul trials in their defence at their murder trials. These judicial events kept the Armenian question in the public eye until the mid-1920s. The Istanbul trials then appeared forgotten until resurgent scholarly interest in the Armenian massacres almost 50 years later.Footnote 76
As news spread of atrocities against the Armenians which began on 24 April 1915, Britain, France and Russia threatened international proceedings against the Ottoman government:
In view of these new crimes of Turkey against humanity and civilization, the Allied Governments announce publicly . . . that they will hold personally responsible . . . all members of the Ottoman government and those of their agents who are implicated in such massacres.Footnote 77
Indeed, members of the government admitted in international treaty negotiations and in parliament that there had occurred ‘misdeeds which are such as to make the conscience of mankind shudder for ever.’Footnote 78 The peace treaty concerned with the dissolution of the Ottoman Empire at the end of the First World War, the 1920 Treaty of Sèvres, described the government led by the Committee of Union and Progress (CUP) party, also known as the Young Turks, as a ‘terrorist’ regime.Footnote 79 It required the Turkish Government to hand over persons suspected of war crimes or crimes against a national of the Allied Powers and persons responsible for the massacres for trial by the Allied military tribunals.Footnote 80 It also required the Turkish Government to provide ‘all documents and information of every kind, the production of which may be considered necessary to ensure the full knowledge of the incriminating acts, the prosecution of offenders and the just appreciation of responsibility.’Footnote 81
The Allies required the defeated Turks to cede territory in central Anatolia, considered by Turkish nationalists to be the heartland of a future Turkish state, to create the new independent state of Armenia. Domestic outrage at the signing of the Treaty of Sèvres led to the downfall of Grand Vizier Damad Ferid's government.Footnote 82 Turkish nationalist forces rejected the treaty and it never entered into force. The Treaty of Sèvres was replaced by the Treaty of Lausanne which contained an amnesty for all crimes committed between 1 August 1914 and 20 November 1922 and no mention of an Armenian state.Footnote 83 Of 142 persons prosecuted in Istanbul, 130 were specifically charged with massacring Armenians.Footnote 84 By 1919, the outrage expressed by the Allied Powers in 1915 at massacres of the Armenians had been replaced by a political pragmatism and concern for trying war crimes connected with the mistreatment of their own prisoners of war.Footnote 85
The problems of legitimacy, which are a theme of war crimes trials and a common critique of peoples’ tribunals, were present at Istanbul. At the trial of the main Young Turk leaders, only 11 were present, with 12 having fled abroad with Germany's assistance or to nationalist-held Anatolia.Footnote 86 The legal arguments made in the trial were also problematic. The defence argued that that accused were charged with political acts that were acts of state and should be heard in the High Court rather than in a court martial. While acknowledging the commission of grave crimes, Damad Ferid blamed the CUP for deportation and massacres in order to exonerate the state.Footnote 87
The Istanbul trials were clearly intensely controversial at the time and assessments of their significance still vary greatly. Acknowledging their failings, Jennifer Balint nevertheless considers them important in creating a precedent for the prosecution of genocide and providing a record of genocide of the Armenians as ‘a coordinated and deliberate policy of the ruling Young Turks.’Footnote 88 Evidence from government officials, Armenian survivors, and government documents sheds light on the record-keeping practices of the Ottoman government and constitutes an archive on which later assessments of historians are based. Issues of the official journal reporting on the trial, including the plan to exterminate the Armenian people, had disappeared by 1922,Footnote 89 leaving later researchers to piece together records from newspaper reports. While pointing out many problems, Dadrian also assesses the Tribunal as an official acknowledgment of the ‘wartime organized mass murder of the Armenians of the Ottoman Empire’, perpetrated by ‘the highest echelons of government’ which was investigated and punished.Footnote 90 Others were and are not so positive in their assessment. Kévorkian notes that in 1919 the British High Commissioner Admiral Calthorpe wrote that the ‘Turkish’ court martial was nothing more than a ‘farce’.Footnote 91 Kévorkian himself considers that the harassment of judges showed that there was ‘never any question of revealing the full scope of the crimes that had been committed.’Footnote 92
A postscript to the Istanbul Trials is the German trials of Armenians charged with murdering senior Young Turk leaders in Germany. In March 1921 Soghomon Tehlirian shot former Interior Minister, later Grand Vizier, Talaat Pasha in Berlin. In his capacity as Interior Minister, Talaat had been responsible for ordering and overseeing the deportations that became death marches, with the majority of deportees dying of starvation, illness or being raped or murdered on their way to their destination in the Syrian desert. In Tehlirian's defence, his lawyer argued that Talaat had been sentenced to death for ordering the deportation and massacres of Armenians in the Ottoman Empire. Journalists who had witnessed events in 1915 gave evidence at his trial. Tehlirian was found not guilty on the grounds of temporary insanity, resulting from having witnessed the murder of his family during the massacres, and hence not responsible for his actions.Footnote 93 After that, it was not until the 1970s that the question of the Armenian genocide regained the spotlight.
5. The Paris Peoples’ Tribunal
Why did the Paris Peoples’ Tribunal consider the question of the genocide of the Armenians in 1984 when the issue had appeared to lie dormant for nearly 70 years? The political context was clearly a precipitating factor. Armenian groups, such as the Justice Commandos of the Armenian Genocide and Armenian Secret Army for the Liberation of Armenia, ‘tried to raise the visibility of the issue by assassinating Turkish officials and setting off bombs in public places’ from 1973 into the early 1980s.Footnote 94 The Tribunal noted ‘with regret’ that ‘the frustration arising from this denial of acknowledgment has seemingly contributed to the recourse to terroristic acts against Turkish diplomats and others’ and aimed to facilitate a constructive acknowledgment and resolution of conflict.Footnote 95 At around the same time, several states and sub-federal units passed resolutions officially recognizing that the 1915 atrocities against the Armenians constituted genocide, with the United States, Israel and Turkey most active in opposition.Footnote 96
Why had the Tribunal decided to consider ‘events which, in essence, belong to the past’? Belgian international law professor and Tribunal President François Rigaux gave three responses to the question he had posed. First, ‘the Armenian people complained of serious and repeated infringements of its fundamental rights and never found a tribunal willing to listen.’Footnote 97 Second, although ‘the identified or identifiable authors are certainly dead; it is on a State crime that it is necessary to pronounce and not on the individual acts of organs of this state.’Footnote 98 Third, ‘the obligation to make reparations . . . must be placed logically on the State to which an illegal international act has been imputed.’Footnote 99 The hearing itself represents a political and legal means of acknowledging past wrongs and their continuing impact on society.
The panel comprised 13 prominent individuals in a range of fields from nine countries. They included Sean MacBride (Ireland) and Adolfo Perez Esquivel (Argentina), who had each been awarded the Nobel Peace Prize, and George Wald (USA), who had received the Nobel Prize for Physiology and Medicine. Professor Rigaux was the president, joined by lawyers Richard Falk (USA), Madjid Benchikh (Algeria), Andrea Giardina (Italy) and Leo Matarasso (France). The non-lawyers were theologian George Casalis (France), former diplomat Harald Edelstam (Sweden), economist and journalist Ajit Roy (India), Member of Parliament Ken Fry (Australia), and sociology professor James Petras (USA). The composition of the panel, comprising lawyers and non-lawyers, is typical of peoples’ tribunals. It reflects the desire of those who organize peoples’ tribunals to deliver not just an alternative legal judgment, but to acknowledge other aspects of the events in question, such as the desire to write alternative histories and to acknowledge loss and trauma.
Three non-government organizations, in France, the United States, and West Germany, had requested the session.Footnote 100 They posed the following questions for the Tribunal:
1. Is it established that the Armenian people was the victim of deportations, massacres, etc. in the Ottoman Empire?
2. Do these facts constitute a ‘genocide’ in the sense of the International Convention on the Prevention and Punishment of the Crime of Genocide (1948) and consequently, do they fall under the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity?
3. What are the consequences of this both for the international community and for the concerned parties?
The first question posed by the petitioners was whether the Armenian people had been the victim of deportations and massacres. It is now widely accepted by historians that deportations and massacres of the Armenians did occur in 1915, although this was more controversial in 1984 when the Paris Tribunal took place.Footnote 101 In responding to this question, the Tribunal addressed the official records from government archives and referred briefly to the Istanbul trials.Footnote 102 It heard from expert witnesses, including historians and international lawyers, who discussed the documentary evidence. Mr Casalis, a panel member, referred to the telegram sent by Talaat on 15 September 1915 to the Governor of Aleppo which states that ‘the government has decided to exterminate all the Armenians living in Turkey.’ He noted that this telegram was one of a group of telegrams submitted during the trial of Tehlirian in 1921 in Berlin after the assassination of Talaat and asked how it was that the original telegrams had disappeared. Historian Yves Ternon, an expert witness, replied ‘they were authenticated but the originals have disappeared and until now it has been impossible to find the experts’ reports authenticating these telegrams presented at the trial.’Footnote 103 Historian Christopher Walker gave evidence that documents incriminating Ministers, including War Minister Enver Pasha, in atrocities against the Armenians were made to disappear after the war.Footnote 104 The Tribunal also heard from four Armenian survivors who were aged around nine years in 1915 and in their eighties when they gave evidence in 1984.Footnote 105
The Tribunal invited the Turkish government to send representatives or submit documents but received no response. The Tribunal therefore included a 30-page document produced by the Foreign Policy Institute, Ankara, as ‘The Turkish Argument: The Armenian Issue in Nine Questions and Answers.’Footnote 106 The document includes responses to the following questions, among others: ‘Did the Turks Undertake a Planned and Systematic Massacre of the Armenians in 1915? Did Talaat Pasha Send Secret Telegrams Ordering Massacres? Did 1.5 Million Armenians Die during World War I?’ The document reports that the Turkish government acknowledges that 300,000 Armenians died in the context of the First World War as a result of deportations, tribal feuds, banditry, and a shortage of food and medicine affecting all Ottoman subjects.Footnote 107 However, it counter-claims that Armenians also killed and assassinated Turks, referring to the Van uprising in April–May 1915 and Tehlirian's assassination of Talaat Pasha in Berlin following the war. While acknowledging that deportations did occur on government orders, the government disputes that they were for the purpose of exterminating Armenians, contending that evidence of high-level government interest in their numbers arose for other reasons, such as military necessity or concern for their welfare, rather than genocidal intent.Footnote 108 Advocates for recognition of the Armenian massacres as genocide claim more than 1 million Armenians died pursuant to government policy approved at the highest level. The Paris Tribunal concluded that approximately two thirds of the Armenian population died between 1914 and 1916.Footnote 109 Some of the Armenians had been saved by American missionaries, the Apostolic Nuncio, and resolute Turkish officials, others had been hidden by Turkish or Kurdish friends or had escaped to Russia, and the Armenian populations of Istanbul and Smyrna had been spared through foreign intervention. However, ‘in Eastern Anatolia, the entire Armenian population had disappeared.’Footnote 110
The second question asks whether the massacres and deportations of Armenians committed in 1915–16 amount to genocide. Was the Tribunal committing ‘the sin of anachronism’Footnote 111 in using the term ‘genocide’ which did not have legal effect until 1951, many years after the events to which it is sought to be applied?Footnote 112 Despite referring to earlier events, Raphael Lemkin did not refer to the Armenians in his book Axis Rule in Occupied Europe, in which he coined the term genocide.Footnote 113 However, in a journal article published two years later, he referred to crimes against the Armenians as genocide, along with the Nazi exterminations of European Jews.Footnote 114 The preamble of the Genocide Convention declares that ‘at all periods of history genocide has inflicted great losses on humanity,’ thereby recognizing that genocide had occurred before the Convention was drafted:
genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.Footnote 115
Evidence is available that the physical acts listed occurred; the main dispute is whether the requisite special genocidal intent can be proven against the government. Taçar and Gauin argue, ‘[w]ithout a valid decision from a competent court, an act cannot legally be qualified as genocide.’Footnote 116 They write that ‘the tragic events of 1915 may be labelled criminal acts enumerated as such by the Ottoman Penal Code’.Footnote 117 In 1919, government ministers and officials were found guilty by the Istanbul Military Tribunal of acts that later became known as crimes against humanity, although the term had been used in 1915 by Britain, France and Russia in their warning to the Sublime Porte. Pre-empting an objection of nullum crimen sine lege, or no crime without law, Tribunal President Rigaux wrote that ‘genocide has, since the end of the 19th century, been prohibited by laws of humanity.’Footnote 118 Referring to the Martens clause,Footnote 119 Tribunal President Rigaux concluded: ‘It is of little consequence that the term “genocide” itself was only recently coined’ as ‘the “laws of humanity” condemned the policy of systematic extermination pursued by the Ottoman government.’Footnote 120
While not referring to the decision of the Paris Tribunal, several international lawyers have argued that the fact that the term ‘genocide’ postdates the crimes perpetrated against the Armenians does not dispose of the issue. According to Geoffrey Robertson, ‘Nobody is suggesting that criminal charges should be brought now against long dead individuals – the question is whether the massacre of the Armenians is correctly described as “genocide”, according to the definition adopted by the UN Convention in 1948.’Footnote 121 William Schabas considers it not unreasonable to extend the Convention definition of genocide, applied retrospectively to the crimes of the Nazis, back ‘an additional two decades or so’. Schabas argues further that ‘concern that recognition of responsibility for crimes against humanity perpetrated nearly a century ago may bring significant legal liability is misplaced. The real argument is about reaching some common understanding of historical events.’Footnote 122
The third question, about the consequences for the concerned parties and the international community, raises the potential responsibility of Turkey as successor state to the Ottoman Empire and the acknowledgment of an historic wrong, genocide, committed against the Armenian people. Like the rights of peoples, genocide is an ongoing theme in the hearings of the Permanent Peoples’ Tribunal.Footnote 123 In 1984, provisions on state crime were still part of the draft Articles on state responsibility.Footnote 124 Political deadlock and legal difficulties for states that do not recognize criminal responsibility of legal persons, such as corporations and states, in implementing such provisions meant that they were not included in the draft Articles finalized and recommended to states in 2001.Footnote 125 Nevertheless, in 1984, it was possible that the provisions on state crime could have become an accepted part of international law if the attendant political and legal difficulties had been resolved. The Tribunal's focus was to provide legal judgment on ‘the most fundamental of all assaults on the rights of peoples, the crime of genocide.’Footnote 126 While international law acknowledges the right of peoples to self-determination in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,Footnote 127 the Permanent Peoples’ Tribunal supplemented it with its Universal Declaration on the Rights of Peoples (the Algiers Declaration).Footnote 128
The judgment of the Paris Tribunal, together with submissions, witness statements and other documents, was published in French in 1984 and in English in 1985.Footnote 129 Included in the publication was ‘An Open Letter to World Public Opinion’ signed by 21 prominent academics, mainly philosophers, including Jacques Derrida, Jürgen Habermas and Jean-François Lyotard.Footnote 130 Messages of sympathy and support from French leftist intellectuals were also included in the publication.Footnote 131 While the Paris Tribunal may have been the first forum, albeit an informal one, to consider the issue of state responsibility for the Armenian genocide,Footnote 132 historians cite it as a footnote or in a list of sources.Footnote 133 Marc Nichanian refers to the Paris Tribunal in relation to historian Bernard Lewis’ trial for genocide denial by the Paris High Court in 1994, where the Court cited the Paris Tribunal as one of three sources of evidence that the genocide had occurred.Footnote 134 International lawyers generally fail to mention it.Footnote 135 In this way, the Paris Tribunal may be considered an archive of the oppressed, and like the official Istanbul tribunal, hidden.
Following the dissolution of the Soviet Union, the former Soviet Socialist Republic of Armenia gained independence as the Republic of Armenia. Its calls and those of the Armenian diaspora for acknowledgment of the massacres and deportations of 1915 as genocide for which the Republic of Turkey bears responsibility continue to cause tension in relations between Turkey and Armenia.Footnote 136 The issue has also been the subject of debate among international lawyers, although the question of whether the Turkish Republic is the continuing or successor state of the Ottoman Empire is less controversial than whether the events of 1915 qualify as genocide.Footnote 137
6. A historiography of genocide
The field of genocide studies is dominated by accounts of the Jewish Holocaust, which serves as a key point of reference for the Armenian genocide. On 22 September 1939, one week before the German invasion of Poland, Hitler apparently asked ‘Who, after all, speaks today of the annihilation of the Armenians?’Footnote 138 The idea that memory and justice are central to the prevention of genocide provided part of the motivation for the Paris Tribunal, where historian Richard Hovannisian gave evidence that ‘even the memory of the nation was intended for obliteration, as churches and monuments were desecrated and small children, snatched from their parents, were renamed and farmed out to be raised as Turks’.Footnote 139 One point of difference between the Armenian and Jewish cases is the proliferation of war crimes tribunals trying crimes related to the Holocaust and the lack of judicial activity in relation to the events of 1915.
Gerry Simpson notes that the way history is narrated varies ‘from the documentary form preferred at the IMT [International Military Tribunal at Nuremberg], to the testimonial histories heard in Jerusalem during the Eichmann Trial and then to the professional historians who occupied centre-stage during the Zundel Trial.’Footnote 140 Yet in both the Istanbul trials and the Paris Tribunal, the oral testimony of Armenian survivors was marginalized. In 1919, the prosecution deliberately focused on the documentary evidence and testimony of government officials, as Armenian witnesses were regarded as unreliable.Footnote 141 The witnesses who testified before the Paris Tribunal in 1984 had been children at the time of the events in question, which would have limited their knowledge and understanding, with the difficulty of recalling traumatic life events exacerbated by the passage of almost 70 years. The publication of oral histories and biographies of family members has sought to preserve living memory for future generations. For example, in My Grandmother, human rights lawyer Fethiye Çetin tells the story of her grandmother who only late in life revealed to her family her childhood as an Armenian girl adopted by a Turkish family in the wake of the massacres.Footnote 142 Following Spivak's suggestion to look for traces, gaps and silences in the archive, the oral testimony of survivors might have been expected to be more prominent in the Paris Tribunal, if it had aimed to produce an archive of the oppressed.
Can the competing views of the events of 1915 be reconciled? The controversy needs to be contextualized within the history of the Ottoman Empire. Fatma Müge Göçek identifies three narratives in official Turkish historiography. The first, the ‘Ottoman Investigative Narrative’, is ‘based on contemporaneous accounts that attempt to surmise the reasons behind the 1915 deportation and massacres of the Armenians’. Second, the ‘Republican Defensive Narrative’ is ‘based on later works written with the intent to document and justify the nationalist master narrative of the Turkish state; it explicitly denies that an Armenian genocide occurred in 1915.’Footnote 143 Third, the:
“Post-Nationalist Critical Narrative” comprises recent works that are critical of the nationalist master narrative. It often does not focus specifically on 1915, but is instead more concerned with the silence in Turkish history in general and its ethnic composition in particular.Footnote 144
The history wars over whether the events of 1915 constituted genocide can be identified as originating in the ‘strong tension between two world views’ identified by Goçek as a feature of the Ottoman Investigative Narrative. The first world view does not question the occurrence of the ‘Armenian massacres’ but aims to find out exactly what happened and why. In the second world view, coinciding with ‘the transition from the Ottoman to the Turkish nation-state, the official attribution of responsibility for the crimes gradually shifted from the perpetrators to the victims.’Footnote 145 This second world view became dominant in the ‘Republican Defensive Narrative’ which ‘both legitimated what happened to the Anatolian Armenians and took pains to demonstrate that the same, if not more, happened to the Turks as well.’Footnote 146 The first world view of the Ottoman Investigative Narrative has been rediscovered as part of post-nationalist historiography.
A common feature of historiography following the Ottoman Investigative Narrative is historians taking it upon themselves to decide the legal question of whether or not the massacres and deportations of the Armenians constitute genocide. Turkish diplomat Gündüz Akton argues that ‘if a historian lacks education and/or experience in international law, that person cannot judge whether or not these incidents amounted to genocide.’Footnote 147 He argues further that historians predominate in the debate over the Armenian genocide because applying the term ‘genocide’ to the Armenian experience requires the retrospective application of the law so jurists are not interested. Dadrian cites founder of the Turkish state Mustafa Kemal Atatürk's history teacher Ahmet Refık (Altınay) as stating: ‘This entire undertaking was a crime against humanity. No government, at no time, has ever acted with such perfidy and cruelty.’Footnote 148 Donald Bloxham also consciously refers to international law as a standard against which historians adjudge events and allocate blame. He discusses the international legal concepts of self-defence and revolt as potential defences to the Armenian uprisings,Footnote 149 as well as evaluating Talaat's claim that the deportations ‘were determined by national and historical necessity.’Footnote 150 Atrocities committed by some armed Armenian groups, such as the Armenian Brigades of Russian Tsarist Forces, are relevant here.Footnote 151 Bloxham evaluates the documentary evidence and the oral testimony at the Istanbul trials with forensic interest.Footnote 152 Most welcome is his insight that, in trying to pass judgment on the past, historians engage in a task many lawyers regard as their own.Footnote 153
Part of the interpretative problem is that ‘genocide’ is more a legal term than a historical one, designed for the ex post facto judgments of the courtroom rather than the historian's attempt to understand events as they develop, that is, out of non-genocidal or latently murderous situations. In this sense, ‘genocide’ is a classic example of the past examined teleologically – a retrospective projection. As the epithet ‘genocide perpetrator’ has become the major stigma under international law, the politico-legal battle between, crudely speaking, representatives of Turks and Armenians, has raged around the applicability of the term, and specifically the key notion of intent. It may be said categorically that the killing did constitute a genocide – every aspect of the United Nations definition of the crime is applicable – but recognizing that fact should be a by-product of the historian's work, not its ultimate aim or underpinning.Footnote 154
The Armenian genocide has reached the European Court of Human Rights framed as a case concerning freedom of expression. In 2005, Doğu Perinçek, President of the Turkish Workers Party and a Doctor of Laws, attended conferences in Switzerland at which he described the idea of the Armenian genocide as ‘an international lie’.Footnote 155 In 2007, a Swiss Court found that ‘his motives were of a racist tendency and did not contribute to the historical debate’ and convicted him of racial discrimination under the Swiss Criminal Code.Footnote 156 Perinçek was unsuccessful before two levels of appeals courts.Footnote 157 He took his case to the European Court of Human Rights, claiming that the Swiss courts had breached his freedom of expression under Article 10 of the European Convention on Human Rights. In 2013 the Chamber found for Perinçek on the basis that the Swiss government had overstepped the margin of appreciation and violated Article 10 in this case.Footnote 158 The Government of Switzerland appealed the decision and the Grand Chamber split 10: 7 but upheld the finding that Switzerland had violated Perinçek's freedom of expression.Footnote 159
Key points in the decisions relate to the relationship between law and history. The Chamber was at pains to distance itself from a direct role in arbitrating whether the massacres and deportations of the Armenians could be legally qualified as ‘genocide’,Footnote 160 which it said was ‘a continuing debate between historians.’Footnote 161 Unlike the Chamber, the minority in the Grand Chamber acknowledged the Armenian genocide as ‘clearly established historical fact’. and the majority did not dispute it. However, the majority distinguished between Holocaust denial laws and laws prohibiting denial of the Armenian genocide, holding that the former were a legitimate interference with freedom of expression due to the proximity of the Holocaust in time and space to European societies. The minority questioned whether, in twenty or thirty years, Holocaust denial would be acceptable or whether denial of the Rwandan or Cambodian genocides in Europe would be protected by freedom of expression. Hence, any hope that the European Court of Human Rights, rather than an international criminal tribunal, might bestow the imprimatur of judicial recognition of the Armenian genocide remains unrealised.Footnote 162 It is precisely for this reason that the Paris Tribunal was convened in 1984.
7. Conclusion
This article has argued that, like war crimes trials, peoples’ tribunals write history. In attempting to understand the alternative histories that peoples’ tribunals seek to write, it has considered whether they can be understood as archives of the oppressed, in contrast to the archives of the oppressors that official courts might be expected to produce. Yet the Istanbul trials produced a record of crimes of omission and commission by Ottoman officials under the leadership of the Young Turk Party. The trial of political opponents by a successor government is familiar to us today, exemplified by self-referral of opposition and rebel leaders by those in power for prosecution at the International Criminal Court. However, the demise of Damad Ferid's government and the accession to power of the Kemalists in the new Republic of Turkey in 1923 meant that the official records of the Istanbul trials were hidden.
Along with dispensing justice, war crimes trials are expected to provide an ‘antidote’ to forgetfulness.Footnote 163 In a society that is traumatized by past atrocities, the performance of the trial recalls the past, ‘transform[ing] history . . . into a contemporary event.’Footnote 164 In looking back 30 years to the Paris Tribunal, twenty-first century concerns about the appropriate roles and disciplinary prerogatives of historians and international lawyers influence how we judge this tribunal. Peoples’ tribunals may be less restricted than official tribunals in focusing on the international criminal responsibility of individuals, whereby history risks being instrumentalized by the accused, the defence, or both, to prove guilt or its absence.Footnote 165
Genocide deniers and advocates of recognition of the Armenian experience as genocide do not fit neatly along disciplinary lines. Agreeing with the Turkish government on the question of genocide, Yavuz argues: ‘A legal scholar is expected to apply the law to the case. Those who operate within a legal frame tend to judge, whereas the task of historians is to understand without taking sides.’Footnote 166 By contrast, genocide recognition advocate Robertson discusses the work of three denialist historians whom he says fail to understand that ‘academic historians establish facts, but the question of genocide is for legal judgment.’Footnote 167 Yet it is not only denialist historians who consider themselves qualified to pronounce on the question of genocide in the Armenian case. In 1997 the International Association of Genocide Scholars, whose members include anthropologists and historians, as well as international lawyers, officially recognized the Armenian genocide.Footnote 168 Regarding the point about historians establishing facts, international lawyer Schabas recognizes that the facts themselves are contested. He goes on to state, ‘[t]he author is a legal scholar, not a historian. I can do no more than to accept a particular version of the historical record for the purposes of argument, and then examine the legal consequences.’Footnote 169 Schabas appears to have altered his position regarding application of the term genocide to the Armenian experience, at least in terms of arriving at a shared understanding of what occurred, although he considers that what happened to the Armenians undoubtedly constituted crimes against humanity.Footnote 170
So what, finally, is the significance of a finding that genocide was perpetrated against the Armenians in 1915? At the 2013 hearing held in Bremen, Germany, the Permanent Peoples’ Tribunal investigated whether genocide had been committed during the last months of the Civil War in Sri Lanka:
What would be the importance for the victims of qualifying the facts they suffered as genocide, which would have no effect on possible acts by international and national bodies? To understand that question, which commonly arises in many other historical situations, it is essential to comprehend that genocidal social practices are not only attempts to destroy individuals. Genocide is an attempt to destroy the identity of a group, alienating it from its experience and history, trying to strip it of the control over its own past, present and future.Footnote 171
In 1984, the decision to hold a peoples’ tribunal in Paris, rather than to make a film, write a history book, or hold a truth and reconciliation commission, suggests that the organisations requesting the hearing sought something more than memorialisation and to correct the historical record. While a peoples’ tribunal offered the chance to create an archive of a suppressed history, a type of archive of the oppressed, it also offered the promise of justice, something which may also be beyond the capacity of an official tribunal.Footnote 172
