On June 2, the European Court of Human Rights announced that the Grand Chamber Panel has agreed to refer the case of Perincek v. Switzerland for hearing by the Grand Chamber. This came in response to an appeal by the Swiss government. The Court’s December 2013 verdict took the view that the Swiss authorities had failed to show how there was a social need in Switzerland to punish an individual for racial discrimination on the basis of declarations challenging only the legal characterisation as “genocide” of acts perpetrated on the territory of the former Ottoman Empire in 1915 and the following years.
According to attorney Vahe Grigoryan, with the Court’s willingness to review the verdict, this high-profile case will commence again and “will no longer proceed in an atmosphere of pervasive silence” from which Turkey benefitted.
Articles which advanced official Ankara’s policy of denial of the Armenian Genocide and used the European Court’s Perincek verdict of December 2013 appeared throughout the Turkish press. Two such articles appeared in Today’s Zaman, just days before it was announced that the Grand Chamber would review the ruling.
One of those articles, written by lawyer Halil Goksan, looked at the issue of the Armenian Genocide from a legal standpoint and referring to the December decision of the ECHR in the Perincek v Switzerland case, concluded that “it is difficult to qualify that which took place in 1915 as Genocide.” One other piece in Today’s Zaman by retired ambassador and former deputy foreign minister Sukru Elekdag, made reference to Turkish Prime Minister Recep Tayyip Erdogan’s April 23, 2014, message of condolence, and encouraged Armenia to demonstrate a more constructive approach towards Erdogan’s proposal. Below, are several passages from those articles.
Genocide, Armenia and Turkey: Some legal considerations
“I think that one cannot absolutely defend any aspect of what was done to the Armenian people a century ago. However, qualifying these events as genocide is, first of all, a juridical question,” writes international law specialist Halil Goksan. He goes on to analyze this issue by referring to the following judgments: the Supreme Court of Switzerland’s decision in the Perincek case; the European Court of Human Rights’ judgment on Perincek v. Switzerland (Dec. 17, 2013); the International Court of Justice in the case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide between Bosnia and Herzegovina and Serbia and Montenegro (Feb. 26, 2007); and the jurisprudence of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda.
Goksan notes that the Supreme Court of Switzerland said that it was “necessary to see whether there is a consensus within the community to qualify the events of 1915 as ‘genocide’ similar to the consensus about the Holocaust.” He goes on to say that the Supreme Court “emphasizes the existence of a consensus that considers the atrocities of 1915-1917 as genocide, and it provides a good number of arguments.” However, he goes on to note that “only 20 states (out of more than 190 in the world) have officially recognized the Armenian genocide.”
“Additionally, in some of these cases, like Switzerland, the recognition is not even from the government of these states, but only from their parliament or a chamber thereof,” writes Goksan and underscores that while the Swiss National Council (one chamber of parliament) officially recognized the Armenian genocide, the Federal Council (government) repeatedly refused to do so.
According to the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), genocide means acts committed with intent to destroy in whole or in part a national, ethnic, racial or religious group. From a legal point of view, in order to qualify the atrocities against the Armenians as genocide, it is necessary to show that those responsible had the particular and specific intent to destroy the Armenians. Goksan stresses that if there was an intent of genocide, “it does not seem logical that a method such as deportation would be used to destroy a group in whole or in part.”
In his concluding statements, Halil Goksan notes, “All of this, of course, does not prevent and should absolutely not prevent Turkey from starting initiatives for peace and reconciliation with the Armenian people. In addition, the year 2015 could actually be an opportunity for this kind of gesture, and we just hope that this is what was in the head of Turkish Prime Minister Recep Tayyip Erdoğan in sending his condolences to the grandchildren of the Armenians who suffered.”
Armenia must constructively consider Erdogan’s proposal
“I believe that Prime Minister Recep Tayyip Erdoğan’s April 23 statement on ‘the Armenian issue’ reflects a rational, humane, peaceful and reconciliatory approach,” writes retired ambassador, former undersecretary of the Ministry of Foreign Affairs and former deputy for the Republican People’s Party Sukru Elekdag.
“It also shows that Turkey is not shunning the truth and is not afraid of confronting its past,” notes Elekdag, referring to Prime Minister Erdogan’s message. While he stresses that Erdogan’s words should not be taken as a unilateral apology, concession or a step toward recognition of Armenian “allegations,” he goes on to write: “The functional side of the full statement is that the conditions for the aspired-to peace and reconciliation between the parties are clearly laid out. These conditions include the establishment of a joint historical commission by the parties to reveal the facts of the 1915 incidents and analyze the findings in light of the applicable legal framework. The decision of the European Court of Human Rights on the Dogu Perincek case, which rejected ‘the existence of a general consensus’ on the Armenian genocide allegation and maintained that this is a controversial issue, allowed Ankara to adopt a bold initiative for peace with Yerevan.”
Elekdag presents three reasons why the European court, in its December 17, 2013 judgment rejected the Swiss court’s ruling and stressed that the Armenian genocide “allegation” was controversial.
“First, it pointed out that it would be very difficult to identify a general consensus, as there were differing views even among the Swiss political organs themselves. Second, the court rightly recalled that the notion of ‘genocide’ is a precisely defined legal concept. As a result the court, noting that genocide is a very narrow, difficult-to-prove legal concept, stated that it was not convinced that the ‘general consensus’ on the existence of the Armenian genocide to which the courts of Switzerland referred in convicting Perincek was consistent with such very specific points of law. Third, the court expressed doubts on whether there could be a ‘general consensus’ on events such as those at issue here, given that historical research was by definition open to discussion and a matter of debate, without necessarily giving rise to final conclusions or to the assertion of objective and absolute truths.”
Based on these assertions, Elekdag writes that the Swiss Federal Office of Justice decision to appeal the ECHR Grand Chamber decision for review “remains pretty weak, because it does not offer new findings or arguments. Furthermore, it is really a remote possibility that the Grand Chamber will challenge the above-mentioned three arguments that the court’s judgment is based upon.”
In his concluding remarks, Elekdag writes: “ Armenia should positively consider this initiative launched by Prime Minister Erdogan in order to extract Turkish-Armenian relations from where they have been stuck for 99 years. Unless this is done, it will not be possible to free Armenians from a consuming preoccupation with victimization and usurpation and Turks from the feeling of being the unfair target of a worldwide conspiracy of calumny and slander. And in that case, it would be a fantasy to suppose that these two nations could ever achieve reconciliation and peace.”
Stella Mehrabekyan
