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Is Genocide a Controversial International Crime?

30 Jul

Why ‘Genocide’ is still a Controversial Crime?

 

In this strikingly original, strange, and brilliant book, Philippe Sands raises a haunting question among a tangle of other intriguing issues discussed throughout East-West Street: On the Origins of Genocide and Crimes against Humanity (New York: Knopf, 2016). It is at once a plural biography (with a bit of autobiography thrown in), a jurisprudential fairy tale, and a searing account of the horrifying impact that vicious Nazi policies had on the lives of the author’s family members as well on those of his human rights heroes. The haunting question is this: was it a wise and practical decision to keep the crime of genocide from being part of the international criminal law framework used to assess the individual accountability of surviving Nazi political and military leaders, and then subsequently in dealing with past and present mass atrocities?

 

Reflecting my own interest over the years in the use and misuse of the language of genocide, I found this to be the most provocative and enduring dimension of this multiply fascinating book in which Sands exhibits his versatility as jurist, legal practitioner, investigative journalist, and amateur historian of the Holocaust as it victimized one small region in contemporary Poland that happened to be the birthplace of his grandfather as well as two of the most renowned contributors to the development of international criminal law of the past century. The book’s title is obscure until we readers discover that East-West Street runs the length of the small town in contemporary Poland where these three families originated, and resided, until the momentous events of the 1930s forced them to seek refuge by moving Westwards.

 

East-West Street can be read from many different angles, divided into no less than 158 short chapters besides a prologue that explains how such an unusual literary/intellectual journey got its accidental start with a lecture invitation to the author and an epilogue that attempts to summarize the juridical interplay between the two prime architects of core international crimes (Sir Hersch Lauterpacht and Rafael Lemkin) and the crimes themselves (crimes against humanity and genocide). What creates the dramatic tension in Sands’ treatment of this interplay is the contrast between a jurisprudential logic that focuses on crimes committed against individuals as contrasted with a competing logic that emphasizes crimes against groups. Also at play for Sands are the contrasting personalities and legal approaches of Lauterpacht, the cool, pragmatic, revered professorial insider, and Lemkin, the emotionally driven, obsessive outsider who dedicated his adult life to lobbying governments to support genocide as a crime, and somehow managed to get results.

 

In the background of this titanic struggle of ideas, were the personal stories of the individuals involved, which, in effect, provided the private motivations for such influential public acts. An extraordinary coincidence that Sands puts to excellent literary use arises from the simple fact that both Lauterpacht and Lemkin were connected in their early lives and studies with a small town, variously named, that changed hands eight times between 1914 and 1945, being governed at different times by Germany, Poland, and the Soviet Union. Its most durable name during the period covered in the book is Lemberg, although it is today known by its Polish name, Lviv. What strains credibility almost to the breaking point is that Sands’ own grandfather, Leon Bucholz, also was born in Lemberg, and it is around the lives of these three men of the law that Sands weaves a complex narrative structure that is surprisingly readable. Much of the book is devoted, with passionate attention to the minutest detail, to how their personal lives and sensibilities were shaped by their departure from the Lemberg before it fell under Nazi occupation, and by the pain associated with the wrenching reality of losing contact with their families left behind. Only belatedly, years later did they each discover the ghastly experiences of lethal victimization experienced by family members after the Nazis took over what had then been Polish sovereign territory. It was striking that only silence could accord dignity to occurrences that were evidently experienced as unspeakable, paralyzing a sensitive moral imagination.

 

Against such a background it is to be expected that the book examines closely the person and behavior of Hans Frank, one of the 21 Nazis prosecuted at Nuremberg, who served as the cruel and devoted Governor General of Poland during the war years when the country fell under German occupation, and became the most notorious killing field of the Nazi era. It is also highly relevant that the three men whose lives and careers are the focal point of the narrative, given further reality by interspersed family pictures and documents, were Jewish, although none with any pronounced religious commitment. Yet their lives and careers were multiply determined by this Jewish identity, and what this meant during a period of unprecedented mass persecution and extermination. This interest in Frank is reinforced by Sands’ extraordinary collaboration with Franks’ son, Niklas, with whom he visits the Nuremberg courtroom where 68 years earlier a death sentence had been imposed on his father. Not to be content with the involvement of Niklas, Sands’ also persuades Horst, son of Otto von Wächter, who administered for Nazi rulers an area that included Lemberg, and had earlier been a classmate of Lauterpacht in the law school of the local university, to assist in the reconstruction of the events. These intergenerational connections led Sands to write the screenplay and perform in a documentary film, My Nazi Legacy: What Our Fathers Did, which had its 2015 premiere at the Tribeca Film Festival, and won recognition and awards.

 

Such an attempt at reliving of these historical events illustrates the contrasting adjustments to the present, with Niklas feeling that his father fully deserved the punishment he received at Nuremberg, while Horst exhibits a morbid pride, remembering his father’s prominence without any sign of shame or even regrets about his father’s role in carrying out the evil policies of the Nazi occupiers. Philippe Sands positions himself both within and without this apocalyptic past, trying to pull the pieces together in a coherent multi-dimensional account without losing contact with his own personal engagement in this overwhelming family tragedy.

 

Putting to one side the intriguing biographical and autobiographical levels of Sands’ construction of these various lives, I wish to concentrate my observations on the legal legacies associated with Lauterpacht and Lemkin,

depicted with such vividness throughout the book, reaching their climax at Nuremberg. As Sands observes, crimes against humanity (CAH) and genocide were both radical and innovative juridical ideas seeking to criminalize Nazi atrocities. CAH focused on protecting the individual against the criminality of any state including one’s own, while genocide was conceived to criminalize the mass killing of identifiably distinct ethnic or religious groups. Lauterpacht more or less invented CAH with the intention of repudiating the impunity that traditionally attached to wrongdoing by a sovereign government against individuals subject to its territorial jurisdiction and thus insulating those who acted on behalf of the state from any kind of personal accountability. CAH mounted a legal challenge directed at unconditional territorial sovereignty and the prevalence of absolute monarchy, which had long dominated the state-centric world order established in Europe by the Peace of Westphalia in 1648. Such impunity continued to be a feature of nationalist ideology despite the French Revolution and the emergence of democratic constitutionalism. The numerous subsequent efforts to make governments internally accountable for their acts through law and a variety of constitutional procedures, including elections, did not extend to external behavior. What made CAH such a radical step forward was this insistence on some measure of external or international accountability by means of law.

 

Lemkin, on his side, invented the crime of genocide, including even the word, almost all by himself. He was guided by the unwavering belief that criminalizing the kind of racialist policies put into practice by Nazi Germany was urgently necessary to save civilization from the recurrence of barbarism. It seems that Lemkin was initially disposed to criminalize such behavior by his shocked reaction to the mass killing in Turkey of Armenians in 1915, and the absence of any punitive international response embedded in international law. He believed fervently that the deadly political virus giving rise to such collective behavior was a distinct form of criminality that should never be conflated with a series of separate criminal acts, however severe, that were directed at individuals.

 

I would have thought that there was every reason to support both forms of criminality in reaction to the Nazi experience, and to a certain extent, so does Sands. The main technical obstacle, only superficially discussed by Sands, to the prosecution of these crimes at Nuremberg was the prohibition against retroactive applications of criminal laws. In fact, the Nuremberg Judgment devoted considerable energy to demonstrate its respect for the prohibition, endorsing CAH only if the acts in question could be connected with the onset of the war in 1939; in other words, from 1933 to 1939, the early years of the Nazi regime, the wrongdoing of those acting on behalf of the German government continued to be internationally shielded by impunity. Subsequently, the adoption by the UN General Assembly of the Nuremberg Principles, ratified now by more than a half century of state practice gives CAH the status of obligatory norms under customary international law, no longer necessarily linked to aggressive war. More than this, these Principles have come to be regarded as ‘peremptory norms’ or simply jus cogens, that cannot be altered by governmental action, and can be changed only through their replacement by another peremptory norm.

 

Genocide has had a somewhat similar intellectual voyage after being sidelined at Nuremberg to Lemkin’s great disappointment. His personal crusade to achieve the inclusion of genocide among the crimes charged against the Nazis failed. Undeterred by this setback, Lemkin’s unwavering perseverance after Nuremberg was soon rewarded. The Genocide Convention came into force in 1950, and as Sands observes, almost instantly genocide became the ‘crime of crimes,’ the most stigmatizing form of criminality whose commission results in a permanent tainting of the national character of a sovereign state found to have been guilty of genocide. There have been various allegations of genocide over the decades, with Cambodia, Bosnia, and Rwanda being among the most notorious instances.

 

Sands situates himself not quite equidistant in relation to these two jurisprudential giants. His own academic life and personal associations disposed him to side with Lauterpacht, celebrating his success in introducing CAH into the fabric of the Nuremberg experience and from there, to become a critical norm in the emergence of international criminal law, and a featured crime embedded in the Rome Statute that creates the legal framework for the International Criminal Court. Sands is unabashedly appreciative, even awed, believinging that Lauterpacht was recognized as “the outstanding legal mind of the twentieth century, and a father of the modern human rights movement.” [loc. 254] Lauterpacht, as an influential Cambridge professor later elected to the International Court of Justice became a member of the British establishment, and was professionally admired for his prodigious output as a scholar that showcased his committed, yet cautious approach to the development of international law. For Lauterpacht this development to be authentic had to arise from the practice of sovereign states. He had a keen appreciation of the limits of what was politically feasible and legally appropriate, and was respectful toward patterns of statecraft, possibly reflecting his exposure while a student to the great Austrian formalist and positivist, Hans Kelsen. In a book built around the organic links between the personal and public, it is hardly surprising that Sands turns out to have been a student at Cambridge and that Eli Lauterpacht, the jurist son of Hersch, was his teacher and a collaborating source of information about his famous father. This contributes one more instance of Sands’ interest in fathers and sons. Unfortunately, for his scheme of things, Lemkin never married and had no sons.

 

The older Lauterpacht was openly skeptical of genocide, viewing it as ‘impractical,’ even an impediment to the realistic development of international law. Sands is never fully clear as to why a crime that seemed to depict the very essence of the Nazi victimization of Jews and others, should have been put aside on grounds of practicality in the lead up to the Nuremberg proceedings. He does mention in passing American and British reluctance to put such a crime into the indictment at Nuremberg was related to the rattle of skeletons in their respective historical closets: the systematic decimation of native Americans and a variety of British colonial practices. According to Sands, “Lauterpacht never embraced the idea of genocide. To the end of his life, he was dismissive, both of the subject, and more politely, of the man who concocted it, even if he recognized the aspirational quality.” [loc.6700] Sands does refer to the problematic aspects of genocide in various places—especially a lawyer’s difficulty of finding strong enough evidence of the appropriate criminal intent to convince a court of law, considering that those engaged in genocide rarely leave a paper trail that satisfies those sitting in judgment and aware that to obtain a guilty verdict in responses to genocide is an indirect punishment of a nation and its people as well as of the individuals charged.

 

In this regard, despite the crime of genocide not being part of the formal proceedings at Nuremberg, Germany has been convicted of ‘genocide’ in the court of public opinion, and Germans whatever their relationship to the Nazi experience seem destined to live perpetually under this dark cloud. As many have observed, and I have experienced, this deep German consciousness of historic guilt explains an excessive deference to the policies of the state of Israel and the related fear that any criticism of Israeli behavior, however justified, will be perceived as anti-Semitism. In this respect, there is a real objection to the formal and informal allegations of genocide because it imposes guilt not only on individuals who acted for the state but on the nation as a whole. There is a related issue, not raised by Sands, of the degree of complicity with Nazism that it is fair to attribute to the German people as a whole, and whether this complicity should cast its shadow over future generations.

 

I have had an interest in the embittered standoff between the Armenian diaspora and Turkey over the redress of historic grievances relating to the tragic events of 2015. To resolve this standoff depends exclusively on the willingness of Turkey to issue a formal acknowledgement that the wrongs endured more than a century ago by the Armenian people constituted genocide. No lesser form of apology by Turkey even if accompanied by initiatives that keep historical memories alive via a museum, educational materials, and commemorative events will overcome this Armenian insistence, supported by many Western governments, that Turkey admit genocide. Sands appears sympathetic with the difficulty posed by this apparent fetishization of genocide, writing, “[i]t was no surprise that an editorial in a leading newspaper, on the occasion of the centenary against Armenians, suggested that the word ‘genocide’ may be unhelpful, because it ‘stirs up national outrage rather than the sort of ruthless examination of the record the country needs.’” [loc. 6618]

 

Questioning the Armenian insistence on genocide has become political incorrect even though the crime was unknown in 1915 when the offending behavior took place and the modern state of Turkey did not then exist as it only came into existence in 1923. Of course, such legalistic considerations will never resolve the controversy as what is deeply at stake is the way historical memories should be inscribed on political consciousness of both victim and perpetrator societies, as well as in authoritative public accounts. It is plausible to admit that what happened a hundred years would have qualified as the crime of genocide if it took place after 1950. The case is further complicated because many Turks continue to subscribe to a historical narrative that claims that the massacres resulted from excessive uses of force in a wartime situation in which Armenians were seen to be a subversive presence siding with the Russian adversaries of the Ottoman Empire in World War I and included occasions on which Turks were also slaughtered. This counter-narrative complicates any acknowledgement by the Turkish government of genocide as it would agitate the volatile ultra-nationalist sentiments that dominate the extreme right in the country.  

 

It is understandable from Armenian perspectives that only an admission of ‘genocide’ is capable of encompassing the magnitude of the wrongs suffered by the Armenian people. There is no other word with comparable stigmatizing power. It was this stigmatizing power that led to Bill Clinton in 1994, while president of the United States, to issue his notorious order that the word ‘genocide’ should not be used by government employees with reference to the massive killing taking place in Rwanda. Clinton evidently feared that the mobilizing effect of labeling these events as genocide would exert unwanted pressure on the United States to intervene to stop the killing.

 

This is the meeting point of the genius of Lemkin, and the worldliness of Lautherpacht, with Sands sensitive to the virtues and limitations of both viewpoints although leaning toward the Lauterpacht approach. Of course, the German guilt is quite different in its essentials from the Turkish reality. A Turkish admission of genocide, should it ever be made, would not be internalized in the manner forced upon Germany by the denazification program implemented by the victors after World War II. It is relevant to realize that Armenian genocide did not emanate from an extremist racialism that was so closely connected with Hitler’s rise to power based on virulent anti-Semitism.

 

In one sense Lemkin has been too successful. In his insistence that what the Nazis were doing to Jews, and other peoples, was a crime against the group, he unwittingly succeeded in elevating genocide above crimes against humanity, and thereby weakened Lauterpacht’s interest in promoting international accountability for crimes without undermining peace among states. There are other concerns. If genocide if read backward into history, as in the Armenian case, it opens a Pandora’s Box that intensifies numerous bitter memories of the past, reopens wounds, and seems to unduly burden present generations with a legacy of criminality that was the work of those no longer alive. What is worse, the Holocaust as the context in which the crime was formalized operates as a standard of comparison, the crime of crimes that lies behind the legal conceptualization, which discourages its acknowledgement by political entities that might be ready to issue an apology but not to suggest that in their national past is an experience that deserves to be treated as comparably reprehensible to what Jews, and not only Jews, suffered at the hands of the Nazis.

 

Given a world of states, maybe Lauterpacht after all adopted the more tenable position. Perhaps the most that can be hoped for is an international criminal law framework that prosecutes, as appropriate, individuals, and leaves the chronicling of group crime to historians, novelists, and filmmakers. Even here there are problems not faced by Lauterpacht or Sands that relate to the hierarchical character of world order that makes any serious application of international criminal law more a creature of geopolitics than an expression of the rule of law or a tenet of global justice.

 

Sands while right to be proud of his own role as revered litigator of international crimes adopts a more questionable position by downplaying the relevance of geopolitics. In a notable passage about the objection to Nuremberg as ‘victors’ justice’ he writes, “[y]es, there was a strong whiff of ‘victor’s [sic] justice,’ [at Nuremberg] but there was no doubting that the case was catalytic, opening the possibility that the leaders of a country could be put on trial before an international court, something that had never happened before. [loc. 288] A whiff! [for those unfamiliar with ‘whiff’ its dictionary definition is this: “a brief passing odor in the air as in ‘a whiff of perfume’ or “a very small trace as in ‘a whiff of self-pity in her remarks’] Looking at the impunity conferred by the Nuremberg framework on the indiscriminate, terror bombing of German cities [recall Kurt Vonnegut’s Slaughterhouse Five], not to mention the fire bombing of Tokyo and the atomic bombs dropped on Hiroshima and Nagasaki, the victors’ dimension could not be convincingly marginalized from the overall legal proceedings. It was certainly more consequential than even ‘a strong whiff’! Even the American prosecutor, Robert Jackson, who is portrayed by Sands quite reasonably as the most influential presence at Nuremberg, understood that the moral validity of the decision rendered was precarious, and needed future vindication by being integrated into an international law framework that bound all states, winners and losers, strong and weak. That this never happened deserves commentary that Sands fails to provide.

 

Instead, Sands reminds us that there has been much follow up to Nuremberg that supports his assessment of its catalytic impact. He cites his own extensive experience with both categories of criminality in cases involving Serbia, Croatia, Libya, United States, Rwanda, Argentina, Chile, Israel and Palestine, United Kingdom, Yemen, Iran, Iran, Iran, Iraq, and Syria as if the mere listing proves his point. [loc. 6607] I believe Sands’ impressive legal activism only shifts the focus. True, there has been a robust development of human rights and international criminal law, especially after the end of the Cold War, but this has obscured rather than overcome this fundamental flaw. The integrity of the rule of law as an operative global system, depends crucially on treating equals equally, and this has never happened, nor will it happen without a sea change in world politics. As African countries have been pointing out with plausibility, criminal accountability for both CAH and genocide is limited to weak states and losing sides in wars, and impunity remains for the strong and winners. We will long be waiting for the likes of George W. Bush or Tony Blair being called to account for their role in embarking on a disastrous aggressive war against Iraq in 2003.

 

True, introducing these categories of criminality into the legal vocabulary gave a valuable normative tool to civil society, first effectively utilized by the much maligned Russell Tribunal in the midst of the Vietnam War and more recently by the Iraq War Tribunal of 2005 that addressed crimes associated with the Iraq War. Yet civil society has only public opinion at its disposal, and even here, is hampered by the statist orientation of most media outlets that demean such civil society initiatives as illegitimate intrusions on the public sphere reserved exclusively for governments representing sovereign states. At best, these civil society tribunals that pass judgment on the behavior of geopolitical actors are expressions of a moral consciousness that acts as if these norms of international criminal law should be universally regulative rather than selectively applied.

 

Sands, along with Lauterpacht and Lemkin, share the liberal conviction that law is an autonomous force for the good in human affairs (unless deformed in its application as by the Nazis). Their sense of practicalities appears to be a willingness to overlook geopolitical constraints, and to take what incremental steps are made available by circumstances with the hope and expectation that over time the growth of law and legal institutions will overcome the present arbitrariness of practice. In the meantime, the liberal test of validity is a matter of procedural assurances that trials are fair and that those who are convicted are guilty of heinous acts that deserve to be punished. The related fact that some are too powerful to be accountable is a fact of life that it is best not to think too much about. Along with far more notable public intellectuals (e.g. Russell, Sartre, Chomsky, Edward Said) I dissent from this liberal optimism/opportunism, believing that the conscience of engaged citizens is an indispensable challenge to all political systems, (talking truth to power) rather than limiting constructive contributions by acting within it. At the same time, I would not judge liberal icons, such as Sands and Lauterpacht, who have made a political choice opposite to mine.

 

In the course of this essay I have ignored other significant publications by Sands, most particularly his prior relevant and important book, Lawless World: America and the Making and Breaking of Global Rules (2005), a well-reasoned and documented critique of the approach to international law taken by the neoconservative presidency of George W. Bush, especially with respect to the Iraq War, but also in reaction to the 9/11 attacks. Although valuing this contribution to the policy debate that occurred during that period, it is fully consistent with the liberal orientation, which is often to oppose American and British foreign policy undertakings, especially if they happen to be unsuccessful and are peripheral to national or strategic interests, and depend upon unilateral aggressive uses of force not authorized by the UN Security Council. In this vein the recently released massive Chilcot Report evaluating British involvement in the Iraq War follows a parallel liberal line, condemning any decision to go to war except on the basis of adequate advance planning and the buildup of public support, but sidestepping the question of whether it was also mandatory on Britain to comply with international law and the UN Charter. Despite the 2.3 million words of the report there is no where a hint about Blair’s potential personal responsibility if international criminal law were to be properly applied.

 

As expressed at the beginning, despite these differences, I greatly admire the author, and applaud Sands’ dazzling performance. Among other qualities, Sands displays an incredible willingness to go to great lengths to get the details correct. He tracks down addresses, relatives, obscure documents and pictures to piece together a riveting narrative of these three lives, and their families, coping with one of the most extreme collective traumas of all time. As said, this book can and should be widely read from many perspectives, and the psycho-politics of the jurisprudence it imparts is the one that happens to interest me most, but it is only one of several strands in this exceptionally rich tapestry, and each one deserves similar detailed commentary.

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The Semantics of Struggle

9 May

Words Against the Grain

 

While reporting to the UN on Israel’s violation of basic Palestinian rights I became keenly aware of how official language is used to hide inconvenient truths. Language is a tool used by the powerful to keep unpleasant realities confined to shadow lands of incomprehension.

 

Determined to use the rather modest flashlight at my disposal to illuminate the realities of the Palestinian ordeal as best I could, meant replacing words that obscure ugly realities with words that expose as awkward truths often as possible. My best opportunity to do this was in my annual reports to the UN Human Rights Council in Geneva and the General Assembly in New York. My courageous predecessor as Special Rapporteur, John Dugard, deserves credit for setting the stage, effectively challenging UN complacency with language that looked at the realities lurking below the oily euphemisms that diplomat seem so fond of.

 

Of course, I paid a price for such a posture as did Dugard before me. Your name is added to various black lists, and doors once open are quietly closed, if not slammed shut. If the words used touched enough raw nerves, you become a target of invective and epithets. In my case, my temporary visibility as UN Special Rapporteur meant being called ‘an anti-Semite,’ even ‘a notorious anti-Semite,’ and on occasion ‘a self-hating Jew.’ Strong Zionist pressures are now seeking to induce legislative bodies in the United States to brand advocacy of BDS or harsh criticism of Israel as prohibited forms of ‘hate speech.’ In April of this year pressures  by the British Jewish Board of Deputies led the University of Southampton to cancel a major academic conference on the Israel/Palestine conflict.

 

In relation to Israel’s treatment of the Palestinians, the clarifying/some of the offending words are ‘apartheid,’ ‘ethnic cleansing,’ ‘settler colonialism,’ ‘annexation,’ ‘crimes against humanity,’ and ‘genocide.’ The UN evades such invasions of light by speaking of Israeli ‘occupation’ (as if a static reality without history) and without challenging certain strong normative tendencies, including the criminalization of apartheid and ethnic cleansing, the delegitimation of colonialism, and the unlawfulness of annexation (as in Jerusalem by legal diktat and the West Bank by the de facto settlement phenomenon).

 

It was my experience that using words that connect the realities with the norms changes the discourse that is used by some of those at the UN and in the media, especially among those who seek genuinely to understand the significance of what is actually happening. Right language encourages right action. What is right language follows from how convincingly the word links to the reality being pointed to, and whether ideological obstacles can be overcome. The weakness of Israel’s position from the perspective of controversy is being expressed by their avoidance of substantive debate, for instance, challenging the labeling of occupation as apartheid, and recourse instead to character assassination of those who dared to connect these dots.

 

I feel that Israel is losing this struggle to obscure the true nature of their activities, and its devastating effects on Palestinian lives and rights. Whether this will mean that Israel will alter its policies is far less clear, and certainly not assured, and the outcome of the 2015 Israeli elections and formation of the new coalition government would suggest that the most extremist Israeli government ever has been installed under the leadership of Netanyahu and the Likud Party.

 

Nothing should be more shocking to Western liberal sensibilities than the appointment of Ayelet Shaked of the Jewish Home Party as the Minister of Justice in Netanyahu’s newly formed coalition government. Ms. Shaked, while being a member of the Knesset, became globally notorious as a result of her post sent around during the Israeli attack on Gaza in the summer of 2014 in which she called the entire Palestinian population the “enemy” that “should be destroyed.” Leaving no room doubt she went on to say that even that even “its elderly and and its women” should not be spared, and that the killing of Palestinian mothers is justified because they give birth “to little snakes.” Ali Abunimah asks rhetorically, “If Shaked’s post does not meet the legal definition of genocide then nothing does.” What is as shocking as these sentiments of Shaked is the silence of the Western media and leaders in the face of such an appointment in the only democracy in the region. Imagine the self-righteous angry posturing from liberals in the West if Hamas dared to select such a personality from their ranks to serve as the Minister of Justice. As it is the Hamas Covenant is invoked to confirm genocidal sentiments although subsequent behavior and political initiatives have moved in a far more accommodating direction. What is at stake is the discriminatory manner of either noticing or not noticing the elevation of adherents of ‘genocide’ to the pinnacles of state power. This two-way approach to language is fully displayed in the political discourse surrounding the Israel/Palestine conflict. And closer to home, compare Ayelet’s selection as Minister of Justice after her offensive tweet with the University of Illinois’ breach of Steven Salaita’s contract to become a tenured professor in reaction to his tweets expressing his outrage about Israel’s 51 day criminal assault on Gaza last summer. It conveys a lively sense of the extremity to which double standards are carried when it comes to Israeli behavior. 

 

There is another set of intense struggles around language that arise when a single word is insisted upon because of its emotive value, and possibly its legal ramifications. I am referring to the unconditional insistence of the Armenian diaspora that the catastrophic events that climaxed in the 1915 massacre of as many as 1.5 million Armenians should be acknowledged as ‘genocide’ by Turkey in the form of an official apology by the government and its leaders. The Armenian insistence stems from several motivations, it seems. Above all, the fact that once ‘genocide’ is admitted, then the link to ultimate evil is established beyond controversy, the Armenian narrative is validated beyond controversy, descendants of victims are granted a kind of clisure, and what happened to the Armenians is implicitly equated with what later happened to the Jews as a result of Naziism. It is psychologically important to prevail with respect to how these events are described so as to alleviate the pain endured over the years by the Armenian people because of what they have experienced as ‘genocide denial’ on the part of Turkey.

 

Turkey’s response to the Armenian allegations has evolved over the years, but it remains somewhat edgy. The 2014 statement of Erdogan seemed to accept the Armenian narrative to the extent of acknowledging the massacres and wrongdoings of 1915, while stopping well short of using the G-word. A few weeks ago, Prior to the centenary of April 24, Pope Francis brought his moral authority to bear by describing in a solemn mass as ‘genocide’ what happened to the Armenian people, and called upon Turkey to recognize these events for what they were. In reaction, Erdogan and other Turkish leaders stepped back, declaring that the issue of what happened in 1915 has not yet been sufficiently resolved by historians to justify attaching the word ‘genocide’ to this horrific set of events, that wrongdoing was not as one-sided as Armenians claim, and that the pope stepped out of line by issuing such an ill-informed and partisan statement concerning historical events that are complex and contested. 

 

Taking a different tack than that of Pope Francis, Barack Obama angered Armenians (even more than the pope angered Turks) by refusing to include the word ‘genocide’ in his centenary message to the Armenian people, instead using the Armenian descriptive Meds Yegham (the great calamity). Obama added that the 1915 events constituted a ‘massacre,’ produced ‘a terrible carnage,’ and were ‘a dark chapter of history.’ It seemed meant to be a strong statement of solidarity with the Armenian campaign, omitting only the word ‘genocide,’ but this omission was all that was needed to turn this expression of solidarity with the Armenian call for redress of grievances into an anti-Armenian statement that was unwelcome because it refused to show its support for all that now mattered to the Armenians, namely, that their victimization be regarded as ‘genocide’ beyond any doubt. For this goal to be reached, the endorsement by the U.S. Government is deemed to be necessary, and hence the Obama formulation fell decisively short.  No denunciation of the 1915 events that did not adopt the descriptive label of genocide was acceptable for the aggrieved and mobilized Armenian diaspora. This semantic hard line shows how much meaning can be invested in whether or not a particular word is used.

 

In response to Obama, representatives of the organized Armenian diaspora expressed their disappointment in harsh language, going so far as to say it would have been better if Obama had said nothing at all. They called ‘disgraceful’ his refusal to live up to a 2008 campaign pledge that if elected president he would identify the events of 1915 as genocide. Obama’s apparent justification for this semantic retreat is that as the head of state his primary obligation is to care for the strategic interests of the country, and Turkey as a NATO ally was too important to antagonize over such an issue. But my point here is to take account of the power of the word, as well as to notice that the language functions differently in private and public domains. To refer to 1915 as Meds Yegham is a strong affirmation of the Armenian narrative. By comparison, if Obama were to describe the dispossession of the Palestinians in 1948 as the nakba, there would be dancing in the streets of Ramallah and Gaza City. Such a designation, if ever used by an American president, would be correctly viewed as a mighty slap in Israel’s face and a great symbolic victory for the Palestinians. The point here is that the Armenians have been able to raise the threshold of semantic redress to the very highest level by this insistence on genocide, and accompanying sentiment that nothing else will be acceptable, while the Palestinians have yet to receive even a formal acknowledgement that they were victims of a calamity in the less incendiary terminology of Arabic, much less that of genocide or ethnic cleansing.

 

What are we to make of this bitter fight about the words used to describe a series of events that happened 100 years ago? First, and most obviously, words matter, and are made to matter deeply by political actors, especially when the purpose is to challenge conventional wisdom. Some words achieve a charismatic stature, and none more than genocide. [As an aside, I was never more attacked by Zionist activists and the mainstream media than when in 2007 I referred in a newspaper article to Israel’s policies of punitive siege imposed on the entire civilian population of Gaza as ‘genocidal’ (not ‘genocide’) in its intent and effect, a contention given governmental endorsement by Shaked’s appointment, but still manages to slip under the radar of Western moral and political sensibilities.

 

Secondly, the alleged Turkish reason for its objection to genocide is based on the factual contention that historical realities of 1915 remain contested, and can only be resolved by an international commission composed of historians enjoying unrestricted archival access. The Armenians summarily reject such an approach as proof of Turkish bad faith, insisting that there already exists an authoritative international consensus supportive of their claim of genocide due to the establishment of systematic, one-sided, deliberate massive slaughter designed to eliminate the Armenian presence in Turkey. Thirdly, the American position is aligned with the Armenians on the facts, but with the Turks on the appropriate language at governmental levels, which seems the weakest of all rationalizations for evading the charge of genocide. Fourthly, if the search is for a way to resolve the conflict, the Armenian tactic of invoking foreign governments and moral authority figures such as the pope, is dysfunctional although it does provide strong moral support for the campaign. If, on the contrary, the mobilization of support is primarily intended to generate a heightened collective memory of victimization among Armenians, then soliciting these external expressions of solidarity from leading moral authority figures is of great value.

 

I find my own view trapped midway between the positions put forward by Pope Francis and President Erdogan. On the facts, although as Turkey argues the events occurred in wartime with the Armenians acting as adversaries and sometimes engaged in violence against Turks, still the basic character of the events  certainly seemed to be genocidal in character, with entire Armenian communities being forced to make death marches. As a lawyer, however, I would refrain from using the label genocide as there was no crime of genocide in 1915, and criminal law can never properly have a retroactive application. As I have pointed out before, even the London Agreement of 1945 setting up the Nuremberg Tribunal to assess Nazi crimes did not include ‘genocide’ among the international crimes that could be charged even though the word genocide had been coined by Rafael Lemkin in 1944, or before.

 

Yet is it not appropriate in view of the consensus on the facts, to recognize the links to catastrophes that have been definitively called genocide by affixing the term to the onslaught against Armenians planned and executed by ‘the young Turks’ acting under Ottoman authority? Surely no sane person objects to categorizing the Holocaust as ‘genocide’ even though the death camps were established and the final solution occurred before the Genocide Convention of 1950, and was long underway before Raphael Lemkin had invented the word. Thinking along this line, and acknowledging that the crime of genocide had yet to be established, it would seem that it is politically, morally, and therapeutically correct to describe the 1915 tragic ordeal of the Armenian people as genocide, but legally irresponsible to do. In this gap between semantic contexts there seems room for a conflict resolving compromise. Yet the distinction drawn may seem obscure, and somewhat academic, unlikely in the end to be attractive for either side in the controversy.

 

How, then, can such an encounter over the word be resolved? It seems doubtful that Turkey will back down without some face saving ritual, and it is virtually certain that the Armenian diaspora having raised the temperature surrounding this single word to such a fever pitch will be content with anything less than a full fledged Turkish capitulation. The Armenian campaign will certainly continue to refuse to risk an ambiguous outcome arising from convening the sort of historical inquiry that Turkey proposes as the necessary next step in resolving the controversy. It doesn’t require much sophistication to conclude that the parties are stuck and likely to remain so for a long time.

 

This is a pity. Both sides would have much to gain by finding a way forward. It is quite likely that if the word issue was finessed, Turkey would be relieved, and go out of its way to preserve a vibrant memory of the events through such initiatives as a national museum, agreeing to a commemorative day, and hosting a variety of Armenian cultural events. If the Turkish leadership could persuade itself that the historical issue is substantially settled, and what matters is the present relationship, maybe then it could issue the kind of statement the Armenian people so fervently seek, and a mutually beneficial future could likely unfold. Both sides need to look in the mirror sufficiently to realize that more is at stake then fidelity to their fixed position for and against the use of the word genocide. Yet, the way in which psycho-political works, it is likely that the wait for such a sensible breakthrough to happen will be long. The burden of magnanimity is on the Turkish side, the stronger party and with less at stake concerning national identity.

 

Before concluding, I would mention another word that is obstructing reason and decency in the national and global political realm. It is ‘terrorism,’ used to demonize the grievances and the tactics of the adversary, and in mainstream discourse preempted by governments and their media apologists to create an unbridgeable moral distance between themselves and a political challenge.

“We refuse to negotiate with terrorists” is the rationale for keeping a hot war going. We should also notice that the language of terrorism is racialized. If the incident involves a white American, there is a tacit turn toward focusing on his mental condition and sociopathic sensibility, but if the suspect is Islamic a frantic search is undertaken to link the acts of violence with either jihadist groups or to trace its source to the Koran.

 

There are efforts to offset equalize word play. For instance, critics of hegemonic semantics introduce the phrase ‘state terror,’ to designate violence by state entities against their non-state enemies. This rejects the attempt by governments to immunize their own violence from censure, while branding the violence of their adversary as morally and legally prohibited because it is terror

 

We know that the accusatory language of terrorism is in the toolkit of governmental policymaking, and can be dropped when convenient. When a political actor is ready to negotiate, adherents of the former enemy are no longer described as ‘terrorists.’ Think how effortlessly the former leaders of the IRA, ANC, or even the PLO were seated at diplomatic dinner tables when the right moment arrived! Yet until the appointed hour, relying on the terminology of terrorism is the equivalent of a hunting license that can be used as a rationale for torture, disproportionate force, civilian casualties, extraordinary rendition, drone strikes, and special ops wherever, whenever without regard to constraints of law or morality.

 

Public reason in democratic society would greatly benefit from a renunciation of terrorism as a respectable term of art. Instead, the focus could be placed on what to do in effective and humane ways to sustain security and safeguard just political orders. In effect, to forego the temptation to call the enemy ‘a terrorist’ the path would be clear to talk as well as fight, and to resist the absurd dichotomy that we are totally ‘good’ and the adversary is totally ‘evil.’

 

But what if the insurgent challenge is demonizing the established order by contending that it is decadent, corrupt, and oppressive? Is it not reasonable if such a critique jumps the barriers of law, and mobilizes for violent struggle, to respond? Of course it is not only reasonable, but morally and politically imperative to respond as persuasively as possible, and to uphold the security of what is deemed legitimate societal arrangements. What is not helpful, actually diversionary, is to respond as if the struggle was between good and evil, and that is what happens as soon as the insurgent challenger is labeled

‘a terrorist.’ Such language exempts the defenders of the status quo from self-criticism and considering accommodationist tactics, proscribing negotiation and assessment of grievances. The response to ‘terrorists’ is war talk, rendering peace talk as irrelevant of worse.

 

Shall we also abandon the label of ‘state terror’ for crimes of the state associated with violence directed toward the innocent? Yes, as part of a wider semantic contract to banish ‘terrorism’ from the lexicon of political discourse. Yet, not unilaterally, as under existing conditions ‘state terror’ at least creates some understanding that it is the manner of deploying violence that should be repudiated rather than the blackening of insurgent reputation. As terrorism is used on behalf of the state, even violence carefully directed at state structures and their human instrumentalities are called ‘terrorists.’ In any event, state terror calls attention to policies and practices, and does not purport to demonize the state itself, leaving open possibilities of diplomacy and reconciliation.

 

At the very least, it would be a salutary move to call for a moratorium on the use of the word ‘terrorist’ from this day forward. And as with the fierce ideological struggles over ‘genocide’ it is best to know when to be provocative so as to expose suppressed realities and when to be pacifying so as to calm the atmosphere raising hopes for compromise and a shift of energies in the direction of nonviolent struggle.

Armenians 1915: The Genocide Controversy

19 Apr

Armenia: The Genocide Controversy

 

Of the many current concerns associated with historic wrongs, none is more salient these days than the long simmering tensions between modern Turkey and the Armenian diaspora (and the state of Armenia). And none so convincingly validates the assertion of the great American novelist, William Faulkner: “The past is never dead. It’s not even past.” This year being the centenary of the contested events of 1915 makes it understandable that was simmering through the decades has come to a boil, with the anniversary day of April 24th likely to be the climax of this latest phase of the unresolved drama.

 

The Armenian red line for any move toward reconciliation has been for many years a formal acknowledgement by the Turkish government that the killings that occurred in 1915 should be regarded as ‘genocide,’ and that an official apology to the descendants of the Armenian victims should be issued by the top political leaders in Turkey. It is not clear whether once that red line is crossed, a second exists, this one involving Armenian expectations of reparations in some form or even restorations of property and territory. For now the battleground is over the significance of granting or withholding the G word from these momentous happenings. The utterance of this word, alone, seems the only key capable of unlocking the portals leading to conflict resolution, but it is a key that Turks across the political spectrum refuse to use.

 

What has recently raised the temperature on both sides is the clear alignment of Pope Francis with the Armenian demands. At a solemn mass in St. Peter’s Basilica in Rome on April 12th that was devoted to the centenary of the Ottoman killings of Armenian Christians Francis quoted with approval from the 2001 joint declaration of Pope John Paul II and the Armenian religious leader Karenkin II to the effect that these massacres in 1915 were “widely considered the first genocide of the 20th century.” The pope’s reliance upon an earlier declaration by a predecessor pontiff was interpreted by some Vatican watchers as a subtle indication of ‘restraint,’ showing a continuity of view in the Catholic Church rather than the enunciation of a provocative new position. Others equally reliable commentators felt that situating the label of genocide within a solemn mass gave it more authority than the earlier declaration with the 1.1 billion Catholics around the world, with likely more public impact. The unusual stature enjoyed by this pope who is widely admired the world over as possessing the most influential voice of moral authority, exerting a powerful impact even on non-Catholics, lends added significance to his pronouncements on sensitive policy issues. There are some in the Catholic community, to be sure, who are critical of this latest foray into this conflict about the application of the word genocide at a delicate time. For instance, the respected Vatican expert, Marco Politi, said that Pope Francis’s comment were typical of this pope who “uses language without excessive diplomatic care.”

 

For these very reasons of salience, one supposes, the Turkish response has been strident, involving some retreat from the more forthcoming statements made just a year ago by the then Prime Minister Recep Tayyip Erdoğan. In an apologetic and conciliatory speech addressed directly to the Armenian community Erdoğan in 2014 said: “May Armenians who lost their lives in the early twentieth century rest in peace, we convey our condolences to their grandchildren.” His language in 2015 reverts to a much harsher tone, in a pushback to Francis declaring that religious leaders make a ‘mistake’ when they try to resolve historical controversies. In an effort to constructive, Erdoğan restates the long standing Turkish proposal to open the Ottoman archives and allow a joint international commission of historians to settle the issue as to how the events of 1915 should most accurately be described, and specifically whether the term genocide is appropriate. Both Erdoğan and the current prime minister, Ahmet Davutoğlu, continue to regard the core issue to be a historical matter of establishing the factual reality. The Turkish position is that there were terrible killings of the Armenians, but at a level far below the 1.5 million claimed by Armenian and most international sources, and mainly as an incident of ongoing warfare and civil strife in which many Turks also lost their lives, and hence it was an experience of mutual loss, and not ‘genocide.’

 

The almost internationally uncontested historical narrative is that the essential factual questions have settled: the Ottoman political leaders embarked on a deliberate policy of mass killings of the Armenians living in what is now modern Turkey. From this international consensus, the Armenians claim that it follows that Armenian victimization in 1915 was ‘genocide,’ the position endorsed and supported by Pope Francis, the European Parliament, and about 20 countries, including France and Russia. As might have been expected the NY Times jumped on the bandwagon by publishing a lead editorial with the headline, “Turkey’s Willful Amnesia,” as if was a matter of Ankara forgetting or a dynamic of denial, rather than is the case of selective perception, nationalism, and fears about the fragility of domestic political balance that explain Turkey’s seemingly stubborn adherence to a discredited narrative.

 

Yet there are weighty problems here, as well. The conclusion of ‘genocide’ is ambiguous. Not only did no such crime, labeled as such, exist in 1915, but there was not even the concept crystallyzed in this manner. Indeed the word was not coined until 1944 by Rafael Lemkin in his book Axis Rule in Occupied Europe, written in reaction to the crimes of the Nazis. Lemkin’s text does indirectly lend support to the Armenian insistence that only by acknowledging these events as genocide is their true reality comprehended. Consider this often quoted passage from Lemkin’s book: “I became interested in genocide because it happened so many times in history. It happened to the Armenians, then after the Armenians, Hitler took action.”

 

From a Turkish perspective, it is notable that the Nuremberg Judgment assessing Nazi criminality avoids characterizing the Holocaust as genocide, limiting itself to crimes against peace and crimes against humanity. If in 1945 there was no legal foundation for charging surviving Nazi leaders with genocide, how can the crime be attributed to the Ottoman Turks, and how can the Turkish government be reasonably expected to acknowledge it. Also in the Nuremberg Judgment there is a clear statement to the effect that criminal law can never be validly applied retroactively (nulla poena sine lege). This principle is also embedded in contemporary international criminal law. That is, if genocide was not a crime in 1915, it cannot be treated as a crime in 2015. Yet from an Armenian perspective, this issue of criminality is tangential, and is not the ground on which the Turkish narrative rests. Both sides seem to agree that what is at stake is whether or not to characterize the events as ‘genocide,’ regardless of whether genocide was a distinct crime in 1915.

 

But here ambiguity abounds on this issue of criminality. The preamble of the Genocide Convention (1950) includes language compatible with the wider import of Armenian contentions: “Recognized in all periods of history that genocide has inflicted great losses on humanity.” In effect, that the reality of genocide long preceded the conclusion of the treaty. And even the premise of prior criminality is reinforced by Article 1: “The Contracting Parties confirm that genocide, whether committed in time of peace, or time of war, is a crime under international law which they undertake to prevent and punish.” By using the word ‘confirm’ it would appear that the crime of genocide preexisted the use of the word ‘genocide’ invented to describe the phenomenon, and thus no persuasive jurisprudential reason is present to oppose redescribing the events of 1915 as an instance of genocide.

 

Such a discussion of the pros and cons of the legalities is far from the end of the debate. The pressure to call what happened to the Armenians as genocide is best understood as a pycho-political campaign to achieve an acknowledgement and apology that is commensurate with the magnitude of the historical wrong, and possibly to set the stage for a subsequent demand of reparations. The insistence on the label ‘genocide’ seeks to capture total control of the moral high ground in relation to the events by authoritatively associating the tragic experience of the Armenians with the most horrendous events experienced by others, and most particularly by the Jewish victims of Nazism. In this sense, although Nazis were not indicted at Nuremberg for genocide, the whole political effort to criminalize genocide as a crime was in reaction to the Holocaust, lending an initial credibility to the ‘never again’ pledge. In other words, only by calling the events of 1915 genocide can the issues of guilt and responsibility be resolved in accord with the Armenian narrative with sufficient gravitas. The Armenian claim is thus not to be understood as primarily expressive of a criminal law perspective, but reflects the key contention that what took place resembled what is prohibited by the Genocide Convention, and thus in this extra-legal sense is appropriately called ‘genocide,’ which functions as a way of concluding that the Armenians were victimized by the worst possible type of human behavior. And further, that no other word conveys this assessment as definitively as does ‘genocide,’ and hence the Armenian insistence is non-negotiable. Any step back from this posture would be interpreted as a further humiliation, thereby dishonoring the memory of those who suffered and opening the wounds of the past still further.

 

At present, both sides are locked into these contradictory positions. No way forward is apparent at present. Each side is hardening their positions, partly in retaliation for what they perceive to be the provocation of their adversary in the controversy. Erdoğan’s relatively conciliatory tone of 2014 has been replaced on the Turkish side by a relapse into defensiveness and denial, and the revival of the largely discredited nationalist version of the events in 2015 as a mutual ordeal. The Armenian campaign, in turn, has intensified, taking advantage of the centenary mood, and now given the strongest possible encouragement by Pope Francis. In this setting, it is to be expected that Armenians will mount further pressure on the U.S. Government, considered a key player by both parties, to abandon its NATO-oriented reluctance to antagonize Turkey by officially endorsing the view that what happened in 1915 should be acknowledged by Turkey as genocide. Barack Obama had assured the Armenian community during his presidential campaign that he believed that Armenians were victims of genocide in 1915 but has to date refrained from reiterating this position in his role as president.

 

The contextualization of this tension associated with the redress of a historical grievance is also an element in the unfolding story. There appears to be an Israeli role in deflecting Turkish harsh criticism of its behavior in Gaza by a show of strong support for the Armenian campaign. Then there is the peril in the region especially faced by Christians, the Yazidis (an ancient syncretist religion drawing on Zoroastrianism, Judaism, Nestorian Christianity and Islam, and believed by many Iraqi to be devil-worshipers) and non-Muslims, especially at risk from ISIS and other extremist groups seeking to ‘purify’ areas under their control in the Middle East. In this picture also is the rise of Islamophobia in Europe, as well as the moral panic created by the Charlie Hebdo incident and other post-9/11 signs that religiously induced violence is continuing to spread Westwards. When Pope Francis visited Turkey last November there was reported an agreement reached with Erdoğan that the Vatican would combat Islamophobia in Europe while Turkey would oppose any persecution of Christian minorities in the Middle East.

 

I have known well prominent personalities on both sides of this Armenian/Turkish divide. More than twenty years ago I endorsed the Armenian position in talks and some writings. In more recent years, partly as a result of spending several months in Turkey each year I have become more sympathetic with Turkish reluctance to apologize and accept responsibility for ‘genocide.’ Among other concerns is the credible anxiety that any acknowledgement of genocide by Turkish leaders would unleash a furious right-wing backlash in the country imperiling social order and political stability. Aside from such prudential inhibitions there are on both sides of the divide deep and genuine issues of selective perception and identity politics that help maintain gridlock through the years, with no breakthrough in sight. Augmenting pressure on Turkey as is presently occurring is likely to be counter-productive, making the Turkish hard line both more mainstream and inflexible. Indicative of this is the stand of the main opposition leader, Kemal Kiliçdaroğlu (head of the CHP) who seldom loses an opportunity to oppose the governing party on almost every issue, when it comes to the Armenian question is in lockstep solidarity with Erdoğan.

 

I see no way out of this debilitating impasse without finding a way to change the discourse. It serves neither the Armenians nor the Turks to continue this public encounter on its present path. The Turkish proposal for a historical joint commission is a bridge to nowhere as either it would reinforce the existing consensus and be unacceptable or the gridlock and be unacceptable. What might be more promising would be a council of ‘wise persons’ drawn from both ethno/religious backgrounds, and perhaps including some third parties as well, that would meet privately in search of shared understanding and common ground. A Turkish columnist, writing in this same spirit, proposes renewing the Erdoğan approach of 2014 by moving beyond sharing the pain to making an apology, coupled with offers of Turkish citizenship to the descendants of Armenians who were killed or diplaced in 1915.[See Verda Özer, “Beyond the Genocide Debate,” Hürriet Daily News, April 17, 2015] One possible formula that might have some traction is to agree that if what was done in 1915 were to occur now it would clearly qualify as ‘genocide,’ and that was done one hundred years ago was clearly genocidal in scale and intent. Perhaps, with good will and a realization that both sides would gain in self-esteem by a win/win outcome, progress could be made. At least it seems worth trying to use the resources of the moral imagination to work through with all possible good will a tangle of issues that has so long seemed intractable.

Did Israel Commit Genocide in Gaza?

9 Oct

[Prefatory Note: the post below is a somewhat revised version of a text published by The Nation, and to be found at the following link. I should also point out that in these proceedings in Brussels under the auspices of the Russell Tribunal I served as a member of the jury]

 

 

In a special session of the Russell Tribunal held in Brussels on September 24th, Israel’s military operation Protective Edge was critically scrutinized from the perspective of international law, including the core allegation of genocide. The process featured a series of testimonies by legal and weapons experts, health workers, journalists and others most of whom had experienced the 50 days of military assault.

 

A jury composed of prominent individuals from around the world, known for their moral engagement with issues of the day that concerned their societies, and also the wellbeing of humanity, assessed the evidence with the help of an expert legal team of volunteers that helped with the preparation of the findings and analysis for consideration by the jury, which deliberated and debated all relevant issues of fact and law, above all the question of how to respond to the charge of genocide.

 

 

It should be acknowledged that this undertaking was never intended to be a neutral inquiry without any predispositions. It was brought into being because of the enormity of the devastation caused by Protective Edge and the spectacle of horror associated with deploying a high technology weaponry to attack a vulnerable civilian population of Gaza locked into the combat zone that left no place to hide. It also responded to the failures of the international community to do more to stop the carnage, and condemn Israel’s disproportionate uses of force against this essentially helpless and beleaguered civilian population. Israel’s contested military operations targeted many legally forbidden targets, including UN buildings used as shelters, residential neighborhoods, hospitals and clinics, and mosques. In defense of these tactics, Israel claimed that rockets and ammunition were stored in these buildings and that Hamas rocket launchers were deliberately placed in the structures that had been singled out for attack. The evidence presented did not confirm these Israeli claims.

 

Although the Russell Tribunal proceeded from the presumed sense that Israel was responsible for severe wrongdoing, it made every effort to be scrupulous in the presentation of evidence and the interpretation of applicable international law, and relied on testimony from individuals with established reputations as persons of integrity and conscience. Among the highlights of the testimony were a report on damage to hospitals and clinics given by Dr. Mads Gilbert, a Norwegian doctor serving in a Gaza hospital during the attacks, Mohammed Omer, a widely respected  journalist who daily reported from the combat zone, Max Blumenthal, the prize winning journalist who was in Gaza throughout Protective Edge and analyzed for the jury the overall political design that appeared to explain the civilian targeting patterns, and David Sheen, who reported in agonizing detail on the racist hatred exhibited by prominent Israelis during the period of combat, widely echoed by Israelis in the social media, and never repudiated by the leadership or public in Tel Aviv.

 

The jury had little difficulty concluding that the pattern of attack, as well as the targeting, amounted to a series of war crimes that were aggravated by the commission of crimes against humanity, most centrally the imposition of a multi-faceted regime of collective punishment upon the entire civilian population of Gaza in flagrant and sustained violation of Article 33 of the Fourth Geneva Convention. A further notable legal finding was the rejection of the central Israel claim of acting in self-defense against rocket attacks directed at Israel.

 

There were several reasons given for reaching this conclusion: the claim of self-defense does not exist in relation to resistance mounted by an occupied people, and Gaza from the perspective of international law remains occupied due to Israeli persisting effective control despite Israel’s purported disengagement in 2005 (more properly characterized as a military redployment); the rockets fired from Gaza were partly at least in response to prior Israeli unlawful provocations, including the mass detention of several hundred persons loosely associated with Hamas in the West Bank and incitement to violence against Palestinians as revenge for the murder of the three kidnapped Israeli settler children; and finally, the minimal damage done by the rockets, seven civilian deaths over the entire period, is too small a security threat to qualify as “an armed attack” as is required by the UN Charter to uphold a claim of self-defense. At the same time, despite these mitigating factors, the jury did not doubt the unlawfulness of firing of numerous rockets into Israel that were incapable of distinguishing between military and civilian targets. This form of unlawful resistance was attributed to both Hamas and independent Palestinian militias operating within the Gaza Strip.

 

A focus of concern in the jury deliberations before and after the proceedings themselves was how to address the allegation of ‘genocide,’ which has been described as ‘the crimes of crimes.’ The jury was sensitive to the differences between the journalistic and political uses of the word ‘genocide’ to describe various forms of collective violence directed at ethnic and religious minorities, and the more demanding legal definition of genocide that requires compelling and unambiguous evidence of a specific ‘intent to destroy’.

 

The testimony made this issue complex and sensitive. It produced a consensus on the jury that the evidence of genocide was sufficient to make it appropriate and responsible to give careful consideration as to whether the crime of genocide had actually been committed by Israel in the course of carrying out Protective Edge. This was itself an acknowledgement that there was a genocidal atmosphere in Israel in which high officials made statements supporting the destruction, elimination, and subjugation of Gazans as a people, and such inflammatory assertions were at no time repudiated by the Netanyahu leadership or subject to criminal investigation, let alone any legal proceedings. Furthermore, the sustained bombardment of Gaza under circumstances where the population had no opportunity to leave or to seek sanctuary within the Gaza Strip lent further credibility to the charge of genocide. The fact that Protective Edge was the third large-scale, sustained military assault on this unlawfully blockaded, impoverished, and endangered population, also formed part of the larger genocidal context.

 

Further in the background, yet perhaps most relevant consideration of all, Israel failed to exhaust diplomatic remedies before its recourse to force, as required by international law and the UN Charter. Israel had the option of lifting the blockade and exploring the prospects for long-term arrangements for peaceful co-existence that Hamas had proposed numerous times in recent years. Such initiatives were spurned by Israel on the ground that it would not

deal with a terrorist organization.

 

Despite the incriminating weight of these factors, there were legal doubts as to the crime of genocide. The political and military leaders of Israel never explicitly endorsed the pursuit of genocidal goals, and purported to seek a ceasefire during the military campaign. There was absent a clear official expression of intent to commit genocide as distinct from the intensification of the regime of collective punishment that was convincingly documented. The presence of genocidal behavior and language even if used in government circles is not by itself sufficient to conclude that Protective Edge, despite its scale and fury, amounted to the commission of the crime of genocide.

 

What the jury did agree upon, however, was that Israeli citizens, including officials, appear to have been guilty in several instances of the separate crime of Incitement to Genocide that is specified in Article 3(c) of the Genocide Convention. It also agreed that the additional duty of Israel and others, especially the United States and Europe, to act to prevent genocide was definitely engaged by Israeli behavior. In this regard the Tribunal is sending an urgent message of warning to Israel and an appeal to the UN and the international community to uphold the Genocide Convention, and act to prevent any further behavior by Israel that would cross the line, and satisfy the difficult burden of proof that must be met if the conclusion is to be reached that the crime of genocide is being committed. At some point, the accumulation of genocidal acts will be reasonably understood as satisfying the high evidentiary bar that must be reached so as to conclude that Israel had committed genocide.

 

Many will react to this assessment of Protective Edge as lacking legal authority and dismiss the finding of the jury as merely recording the predictable views of a biased ‘kangaroo court.’ Such allegations have been directed at the Russell Tribunal ever since its establishment in the mid-1960s by the great English philosopher, Bertrand Russell, in the midst of the Vietnam War. These first sessions of the Russell Tribunal similarly assessed charges of war crimes associated with U.S. tactics in Vietnam, and in Russell’s words, represented a stand of citizens of conscience ‘against the crime of silence.’ This latest venture of the tribunal has a similar mission in relation to Israel’s actions in Gaza, although less against silence than the crime of indifference.

 

It is my view that such tribunals, created almost always in exceptional circumstances of defiance of the most elemental constraints of international law, make crucial contributions to public awareness in situations of moral and legal outrage where geopolitical realities preclude established institutional procedures such as recourse to the International Criminal Court and the UN Security Council and General Assembly. That is, these kind of self-constituted tribunals only come into being when two conditions exist: first, a circumstance of extreme and sustained violation of fundamental norms of morality and international law and secondly, a political setting in which governmental procedures and UN procedures are inoperative.

 

When the interests of the West are at stake, as in the Ukraine, there is no need to activate unofficial international law initiatives through the agency of civil society. However in circumstances involving Israel and Palestine, with the United States Government and most of Western Europe standing fully behind whatever Israel chooses to do, the need for a legal and moral accounting is particularly compelling even if the prospects for accountability are virtually nil. The long suffering people of Gaza have endured three criminal assaults in the past six years, and it has left virtually the whole of the population, especially young children, traumatized by the experience of such sustained military operations.

 

It should be acknowledged that the UN Human Rights Council has appointed a Commission of Inquiry to investigate allegations of war crimes associated with Protective Edge, but its report is not due for several months, Israel has indicated its unwillingness to cooperate with this official UN initiative, and it is almost certain that any findings of criminality and related recommendations will not be implemented due to the exercise of a geopolitical veto by the United States, and perhaps, other members of the Security Council. In view of these circumstances, the argument for convening the Russell Tribunal remains strong, especially if one recalls the fate of the Goldstone Report prepared in analogous conditions after the 2008-09 Israeli attacks on Gaza known as Operation Cast Lead.

 

The Russell Tribunal is filling a normative vacuum in the world. It does not pretend to be a court. In fact, among its recommendations is a call on the Palestinian Authority to join the International Criminal Court, and present Palestinian grievances to the authorities in The Hague for their investigation and possible indictments. Even then the realities of the world are such that prosecution will be impossible as Israel is not a party to the treaty establishing the ICC and would certainly refuse to honor any arrest warrants issued in The Hague, and no trial could be held without the physical presence of those accused. The value of an ICC proceeding would be symbolic and psychological, which in a legitimacy war would amount to a major ‘battlefield’ victory. It is notable that Hamas has joined in urging recourse to the ICC despite facing the distinct possibility that allegations against its launch of rockets would also be investigated and its officials indicted for its alleged war crimes.

 

As with the Nuremberg Judgment that documented the criminality of the Nazi experience, the process was flawed, especially by the exclusion of any consideration of the crimes committed by the victors in World War II, the Russell Tribunal can be criticized as one-sided in its undertaking. At the same time it seems virtually certain that on balance this assessment of Israel’s behavior toward the people of Gaza will be viewed as supportive of the long struggle to make the rule of law applicable to the strong as well as the weak. It is also reflective in the disparity of responsibility for the harm done by the two sides.

 

I recall some illuminating words of Edward Said uttered in the course of an interview with Bruce Robbins, published in Social Text (1998): “The major task of the American or the Palestinian or the Israeli intellectual of the left is to reveal the disparity between the so-called two sides, which appear to be rhetorically and ideologically to be in perfect balance, but are not in fact. To reveal that there is an oppressed and an oppressor, a victim and a victimizer, and unless we recognize that, we’re nowhere.”

 

‘Genocide’ in 1915: Law, Language, and Politics

27 Apr

 [This post is supplemental to what was contained in yesterday’s post, seeking to take advantage of the attention given to the events of 1915, to encourage a rethinking of the nature of the conflict. I am arguing that the historical argument should be put to rest, and that the issues that yet need to be resolved relate to the legal questions surrounding the applicability of genocide, as well as the related semiotic and political questions associated what be called ‘the politics of genocide.’]

            The Turkish Prime Minister, Recep Tayyip Erdogan, and the American President, Barack Obama, have both been accused of ‘denialism’ by representatives of the Armenian community in response to their official statements issued to commemorate formally the 99th anniversary of atrocities committed in 1915 against the Armenian minority living in Turkey.

 

            The accusations directed at the two leaders are somewhat different as is the tone and substance of their two statements. Obama is essentially being attacked because the Armenian diaspora community in the United States was led to believe during his presidential campaign of 2008 that he would if elected formally affirm that what happened in 1915 to the Armenian minority living in Turkey constituted genocide. Obama’s statement adopts strong language of condemnation: “We recall the horror of what happened ninety-nine years ago, when 1.5 million people were massacred or marched to their deaths in the final days of the Ottoman Empire.” He added, “I have consistently stated my own view of what occurred in 1915, and my view has not changed,” apparently seeking to console those who expected more, while refraining from crossing the red line associated with the G-word, which is what Armenians were waiting for. Obama calls for a “full, frank, and just acknowledgement” of the facts as being in the interests of all sides, and part of the struggle to “build a foundation for a more just and tolerant future,” and with a nod toward national humility Obama observes that Armenian/Turkish reconciliation should go forward “as we [in America] strive to reconcile some of the darkest moments in our own history.” But this is not enough to satisfy those who articulate the views of the Armenian campaign that will settle for nothing less than the unambiguous avowal that the Armenian ordeal was ‘genocide.’ Any other description of these events is dismissed as unacceptable, being regarded as evasive or denialist in relation to this insistence on the word.

 

            Oddly, the complaints about Erdogan’s response to the 1915 anniversary are rather similar, although his rhetoric is more problematic in relation to how the events in question should be historically understood. For Erdogan many ethnicities suffered unjustly during the final stage of the Ottoman Empire, including Turks, Kurds, Arabs, Armenians and millions of others during this “difficult period.” He calls for an approach that appreciates “all the sufferings endured..without discriminating as to religion or ethnicity.” And further, that no justice is rendered by “constructing hierarchies of pain nor comparing and contrasting suffering.” Erdogan pushes back against Armenian pressures by saying “using the events of 1915 as an excuse for hostility against Turkey and turning the issue into a matter of political conflict is inadmissible.” In effect, Erdogan repudiates the major premise of the Armenian campaign.

 

            Erdogan articulates, as well, an approach that Turkey has more broadly embraced in its sponsorship (with Spain) of the Alliance of Civilizations: “The spirit of the age necessitates dialogue despite differences, understanding by heeding others, evaluating means for compromise, denouncing hatred, and praising respect and tolerance.” More concretely, he repeats the call for “a joint historical commission,” which would have the benefit of an expanded access to the extensive Turkish archives now available to all researchers. Along these lines Erdogan also proposes that the diverse peoples of Anatolia, who lived together peacefully for centuries, “talk to each other about the past with maturity and to remember together their losses in a decent manner.” And somewhat piously at the end, “it is with this hope and belief that we wish the Armenians who lost their lives in the context of the early twentieth century rest in peace, and we convey our condolences to their grandchildren.”

 

            As might be expected, the Armenian reaction to such sentiments is one of anger, and feelings of disappointment that can be summarized by the reaction, ‘nothing new.’ Erdogan’s message is the familiar Turkish refrain that refuses to accept the central Armenian grievance—that Armenians were the main target of the lethal Ottoman policies of 1915 to such a deliberate and systematic extent as to justify the label of ‘genocide.’ The Armenian campaign for rectification is centered upon the unconditional demand that governments throughout the world, especially Turkey, and secondarily, the United States, confirm that what took place was genocide. For this reason, although the differences between what Obama and Erdogan had to say are significant, even profound, the Armenian reactions are almost equally dismissive.

 

            To some extent more nuanced Armenian responses to Obama and Erdogan might help lead toward a more constructive approach to persisting tensions. After all, Obama basically subscribes to the Armenian understanding of what took place in 1915, while Erdogan rejects the far more basic idea that Armenian suffering is of such a grave character as to warrant special consideration. It would seem desirable and reasonable for Turkey to move beyond this view of plural suffering to a willingness to accept the historical narrative long convincingly put forward by respected scholars and representatives of the Armenian and international community, and concentrate attention on how this terrible past episode may be properly acknowledged during 2015, a hundred years later. The responsible debate at this time is about the legal status of the 1915 events, taking the historical facts as sufficiently established as to not require further investigation. Indeed if the Turkish government were willing to make this concession it might ease the way toward creating a process with some real prospect of mutual accommodation. From this perspective, it should be possible to start by agreeing with the descriptive accuracy of Obama’s formulation and move beyond what Erdogan proposes while incorporating his remarks encouraging dialogue and tolerance.

 

            What seems most helpful at this time is shifting away from a focus on the historical interpretation of the events of 1915 toward a consideration of how to achieve an agreed rendering of the legal and semiotic issues that are the true residual core of the controversy. Such a shift will at least allow us to understand the overriding importance attributed by both the Armenian community and the Turkish government to whether the word genocide should be treated as applicable or non-applicable in the good faith search by the parties for justice and reconciliation. In the spirit of moderation it needs also to be realized that time has passed, that the hurt of such remembrances can never be fully assuaged, and that the best that can be achieved is some compromise between remembering and forgetting. Such a compromise is essential if the shared objective of the Armenian community and Turkey is to escape finally from the twinned entrapments of embitterment and rationalization.    

Armenian Grievances, Turkey, United States and 1915

26 Apr

 

 

            On April 10 by a vote of 12-5, with one abstention, the U.S. Senate Foreign Relations Committee gave its approval to Resolution 410 calling upon Turkey to acknowledge that the massacres of Armenians in 1915, and subsequently, constituted ‘genocide.’ It also asks President Obama to adjust American foreign policy by advocating an “equitable, constructive, stable and durable Armenian-Turkish relationship including full acknowledgement of ‘the Armenian genocide.’” So far, Obama since becoming president has refrained from uttering the g-word, although he has acknowledged the historical wrongs done to the Armenian people in the strongest possible language of condemnation.

 

            Such resolutions, although widely understood to be symbolic and recommendatory, reflect the efforts of the Armenian diaspora to raise awareness of the true nature of what the Armenians endured in 1915, and especially to induce the Turkish government to acknowledge these events as ‘genocide,’ or else suffer the reputational consequences of embracing what is being called ‘denialism.’ The resolution is the latest move to build a strong international consensus in support of the Armenian sense of grievance, and in so doing generate pressures on the accused Turkish government to admit the full enormity of the crimes against the Armenian people by admitting that it was genocide. Further there may also be present an intention to reinforce an appropriate apology, should it be forthcoming, with such tangible steps as restoring stolen property and possibly even establishing a reparations fund.

 

            The Armenian campaign also makes the wider claim that this process of redress for a horrendous historic grievance will also act as a deterrent to the commission in the future of similar crimes. The Senate resolution, however, make a minimal contribution to these goals. It is little more than a gesture of good will explicitly associated with commemorating the 99th anniversary of the 2015 events. As the April 24th day of commemoration has passed without the resolution being put on the action agenda of the full Senate prior to its Easter recess the resolution becomes consigned to the permanent twilight of a recommendation that is never even consummated by the relevant legislative body. Such an interplay of action and inaction manifests an underlying governmental ambivalence as to how this issue should be formally addressed by the United States at official levels of government. Why? Because the expression criticism of the Turkish government for the manner it is addressing the Armenian demands for redress inevitably engages American foreign policy.

 

            The Turkish Foreign Minister has already indicated his displeasure with such initiatives, insisting that respected historians should investigate the claim of genocide, that it is not appropriate for third countries to meddle in such matters, and that such an initiative, if it were formally endorsed at higher levels in Washington, will have a negative influence on the search for some kind of mutually acceptable resolution of these persisting tensions. The Turkish narrative on 1915, which has been softening its oppositional stance during the past decade, still argues that there were atrocities and suffering for Turks as well as Armenians, including a considerable number of Turkish casualties. Further, that the massacres of Armenians were less expressions of ethnic hatred than expressive of a reliance on excessive and undisciplined force to suppress an Armenian revolt against Ottoman rule at a time when Armenians were siding with invading Russian armies in the midst of World War I.

 

What is at Stake

 

            There are two important, intertwined concerns present. First, the whole issue of inter-temporal justice, how to address events that took place one hundred years ago in a manner that is as fair as possible to the victims yet takes account of the passage of time in assessing responsibility for such long past events. Secondly, the degree to which such an issue should be resolved by the parties themselves within the frame of the country where the events took place, or within the framework of the United Nations, rather than be addressed in the domestic politics of third countries whose governments are likely swayed by the presence or absence of aggrieved minorities.

 

            My impression is that the current leadership in Turkey is less seriously committed to upholding the Turkish narrative than in the past, but neither is it willing to subscribe to the Armenian narrative in some of its key elements, especially the insistence that what took place in 1915 must be described as genocide if it is to be properly acknowledged. It is not only the inflammatory nature of the word itself, but also a reasonable apprehension in Ankara of ‘the Pandora’s Box’ aspects of such a process, which once opened would likely move from the word genocide to such delicate embedded questions as reparations and the restoration of stolen property. Especially in recent months, the Turkish political scene has been rather chaotic, and undoubtedly there is a present reluctance by Turkish leaders to stir the hot embers of its nationalist political culture by acceding to the Armenian agenda relating to resolving the conflict. Yet with the 100th anniversary of 1915 around the corner, Turkey has its own strong incentives for being pro-active in developing a forthcoming posture in relation to Armenia and the Armenians.

 

            Against such a background, it seems important to ask what it is that the Armenian demand for the redress of historic grievances is seeking. Is it the belated satisfaction of having Turkey formally declare and admit that what took place in 1915 was ‘genocide,’ or is it more than this? Is there embedded this further demand that Turkey honor the memory of these events by some sort of annual observance, perhaps coupled with the establishment of an Armenian Genocide Museum? Or as signaled already that Turkey is expected to establish a fund and reparations procedures that will allow descendants of the victims to put forward economic claims for the harms endured? In effect, is the full range of Armenian expectations apparent at this stage or merely somewhat clouded? As the experience with the Holocaust suggests, there is no single event that can permanently shut the doors of history or dry the tears of extreme remorse. At most, acknowledgement, apology, and even tangible steps initiate a process that will never completely end, nor bring a satisfying closure to those who identify with the victims of such an unforgivable stream of past occurrences.

            As well, parallel to the genocidal and 1915 Armenian agenda, is a long festering inter-governmental dispute between Turkey and the sovereign state of Armenia over control of Nagorno-Karabakh region in the middle of Azerbaijan that has closed the border between the two countries since 1993. The Acting Armenian Foreign Minister, Edward Nabandian, added fuel to this diplomatic fire by welcoming the Senate resolution as “an important step” toward establishing “historical truth and prevention of crimes against humanity.” By so doing, the international dispute over Nagorno-Karabakh is joined at the hip to the historical controversy about the events of 1915. In an unusual way, the Armenian campaign is mainly conducted under the direction of the Armenian diaspora, and has only been given a secondary emphasis by Armenia itself, which has generally seemed more concerned about economic relations, and especially the territorial dispute in Azerbaijan, when dealing with its Turkish neighbor.

 

            What is one to do about a course of events that occurred under distinct national and international conditions expressive of different structures and legal norms that prevailed a century earlier? I was similarly challenged recently after giving a lecture on moral responsibility in international political life. The question was posed by a native American in the audience who angrily asked me why I had failed to advocate the restoration of the land seized in earlier centuries from the indigenous peoples who then inhabited North America, implying that my silence about such matters was an implicit endorsement of genocide. Such a reaction is understandable on the part of those who identify with a victimized community, but cannot be prescriptive in relation to 21st century realities. Certainly it was genocidal in willing that distinct ethnic groups become extinct or endure forcible dispossession, but there was at the time no legal prohibition on such behavior, and whatever moral interdiction existed was inconclusive, despite the manifest cruelty of the colonizing behavior. At this point, the clock cannot be rolled back to apply contemporary standards of justice to past wrongdoings, although ethical sensitivity and empathy is fully warranted. And what is totally unacceptable are any present efforts to rationalize or even glorify past barbarisms. For instance, the disgusting revisionist view of American slavery recently articulated by the right-wing libertarian rancher, Cliven Bundy, who absurdly asserts that slaves were probably happier than freed African Americans because they enjoyed the satisfactions of family life. As Charles Blow observes in an opinion piece, “Slaves dishonored in life must not have their memories disfigured by revisionist history.” {Blow, “A Rancher’s Romantic Revisionism,” NY Times, April 26, 2014]

 

            We must begin from where we are (but not end there), seeking as humane and transparent a response to these historic injustices as seems possible given both the intervening developments and the relevant balance of forces now and then. True, the anti-colonial movements of the last half of the 20th century did undo earlier injustices because of their capacity to mobilize effective movements of popular resistance. Indigenous people do not have this capacity, and are confined to what legal remedies are voluntarily conferred, and to what degree documenting the past creates sufficient public sympathy to support initiatives seeking some fractional measure of moral and material rectification.

 

            To some extent, accurate documentation is itself a form of historic redress, as was the case with the post-dictatorial ‘truth and reconciliation’ processes that tried in Latin American and South Africa to reconcile peace and justice during a transition to constitutional democracy, yet never brought anything approaching satisfaction or even closure to the victim communities that had earlier experienced unforgiveable criminality. We should also learne from Nelson Mandela’s willingness to overlook the structural injustices associated with economic and social apartheid in achieving the ‘political miracle’ of a peaceful dissolution of political apartheid. Also relevant are some of the late reflections of Edward Said on how to address the Palestine/Israel struggle given the realities that existed fifty years after the establishment of Israel. In effect, Said was of the opinion that despite the legally and morally unacceptable dispossession of the Palestinian people from their homes and homeland in 1948, it was now both futile and wrong to challenge any longer the existence of Israel. To resolve the conflict, in his view, required an acknowledgement of past injustices, especially the nakba, and mutually agreed arrangements that allowed the two peoples to live and co-exist in peace under conditions of equality, security, and dignity.

 

Was it Genocide?

 

            Is there a single historical truth that must be affirmed by all those of good will, and is it what the Armenian movement and U.S. Senate resolution contends? Can Turkey only express its good faith by subscribing literally to the main features of the Armenian narrative? Until it makes such a willingness clear it is unlikely to deflect the accusatory agenda of those demanding redress. In effect, is the litmus test of Turkish sincerity and remorse dependent upon a formal acknowledgement that what took place in 1915 was unequivocally ‘genocide’? I believe the historical truth is quite unequivocal from a factual and moral perspective, namely, that there was a systematic and deliberate effort to eliminate the Armenian minority from Turkey stemming from government orders and plans, and although occurring in the midst of war, political instability, and national upheaval, the ethnic violence was so one-sided and comprehensive as to undermine the credibility of the central contention of the Turkish narrative that World War I brought about an inter-ethnic experience of shared suffering replete with atrocities, but the blame cannot be exclusively attributed to Turkey, nor can the suffering be exclusively assigned to the Armenian community. This historical truth of predominant Turkish responsibility, however, is far more equivocal in relation to the further Armenian insistence that these genocidal events constitute the crime of genocide as embodied in the 1948 Genocide Convention, which came into force in 1951.

 

            Criminal law is not retroactive. Even the Nuremberg Judgment, which endorsed such innovations as ‘crimes against the peace’ and ‘crimes against humanity’ avoided any attempt to hold the Nazi leaders being prosecuted responsible for genocide despite the magnitude of the Holocaust and the abundance documented evidence of the deliberate and planned elimination of the Jewish people. What exactly, then, is the crime of ‘genocide’? Can it be said to pre-exist the entry into force of the Genocide Convention, considering the wording of its first article, but if so, why was genocide ignored in the prosecution of these Nazis? The wording of Article 1 of the Genocide Convention lends an aura of ambiguity to such queries: “The contracting parties confirm that genocide whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.” (emphasis added). The word ‘confirm’ in Article 1 seems supportive of the view that the crime depicted in the treaty somehow preexisted the adoption of the Convention, and that only the usage of the word is retroactive. Yet the concept of genocide was not conceived to be a legal category until the crime was proposed in 1944 by Raphael Lemkin. I would suppose that had Lemkin persuaded the political community to adopt the Genocide Convention a decade earlier the Nuremberg indictments would have included the crime, and possibly the decision would have given guidance as to whether the crime came into being with treaty or antedated its ratification.

 

            Controversy is present as soon as the idea is to compel Turkey to admit that the massacres of 1915 are massive commissions of the crime of genocide, and as such, have an array of legal implications. More flexible, by far, would be a process of inquiry by an international commission of independent experts, which included well respected international lawyers, that would likely conclude that the events in question were clearly ‘genocidal’ in character, and if they had occurred after the Genocide Convention was adopted in 1950, they would constitute ‘genocide.’

            The World Court in responding to the Bosnia complaint alleging Serbian genocide concluded that a high evidentiary bar exists to establish the crime of genocide even with the benefit of the Convention, but it did find that the 1995 massacre in Srebrenica was ‘genocide.’ The majority decision of the highest judicial body in the UN System indirectly highlights the crucial differences between the crime of genocide and the psycho/political/sociological realities of genocidal behavior.

 

Is U.S. Government Involvement Constructive?

 

            The question of whether the United States should be involved in shaping international public opinion is less significant than the substantive dispute about the events, but far from trivial. The questionable political opportunism that connects the responsiveness of Congress to a well-organized Armenian lobby in the United States does seem to make reasonable the official Turkish response that it is never helpful for a foreign government to take the anti-government side in an unresolved controversy of this sort. It is bound to harm bilateral relations between the two countries. In effect, the mutual respect for sovereignty requires governments to refrain from such meddling under almost all circumstances. One can easily imagine the furor in the United States if the Turkish Parliament passed a resolution insisting that Washington finally acknowledge that native American tribal communities were victims of genocide or that descendants of slaves are entitled to reparations. However sincere and morally plausible, in a world where legality and legitimacy are almost always matters for territorial sovereigns to resolve, the foreign source of such sentiments are deeply resented, and are more likely to produce an angry backlash than to induce an accommodating retreat.

 

Finding a Solution

            From the Armenian perspective seeking redress, is this show of American governmental support helpful or not? I suspect that a more discreet effort would produce less defensiveness on the Turkish side, and more willingness to seek a mutually satisfactory outcome. Mobilizing the American Congress and French legislative bodies is somewhat similar to looking beneath the lamppost for a watch dropped in the darkness of the night. Admittedly, if the purpose is to raise awareness and mobilize support from the Armenians such a public relations campaign may be effective even if it stiffens Turkish resistance in the short run.

             A second important concern is how to address the genocide issue given the passage of time, and the interplay of preoccupations on both sides. My preference would be for both Turkish and Armenian representative to agree that it is permissible to use the word genocide with reference to the Armenian ordeal of 1915, but with a shared understanding that the use of the word in relation to the massacres of Armenians is without legal effect. The concept of genocide is inherently ambiguous as it simultaneously puts forward an empirical description of a set of events that offers a political, psychological, sociological, and ethical evaluation of those events, while also advancing the possible legal evaluation of such events as constituting the crime of genocide, which would also mean sustaining a heavy burden of proof as required to establish specific intent, which is a vital element of the crime.

 

            What does not help internationally, it would seem, is posturing by the U.S. Congress. It will probably necessitate some quiet fence-mending by the Obama presidency to maintain good Turkish-American relations, a key strategic priority. At the same time, the Turkish government should not sit still. It should do more than angrily push aside this American initiative and the related Armenian campaign, and show a more forthcoming attitude toward finding common ground to heal gaping Armenian wounds that remain open after a century. Mounting pressure due to the worldwide Armenia is definitely raising the level of awareness, but only wisdom, empathy, and good will on both sides can overcome such an embittered past. In some respects, there is something tragic about this standoff between those who have reason to want the past to be a matter of historical reflection and those who insist that the past is forever present.

 

            The Turkish government has reiterated its offer to establish a joint commission composed of Armenian, Turkish and international historians to establish an authoritative narrative. Besides the likelihood that existing disagreements would be reproduced in the working of this type of commission, the idea that core concern is ‘historical’ misses a main point that such a traumatic series of events need to be interpreted from multiple perspectives, including that in this instance of international criminal law. Establishing the factual reality, which strongly favors Armenian empirical claims, does not resolve the question of what would qualify as an appropriate acknowledgement by the Turkish government, nor does it address the lurking concern as to whether acknowledgement is sufficient, and if not, what further steps must be taken by Turkey if it is to satisfy the Armenian campaign.