Frequently Asked Questions: Conventions & Resolutions

64 How did the UN Genocide Convention come to be and what is its background?
65 How does the UN Genocide Convention read?
66 How can the UN Genocide Convention apply to the 1915 genocide when the Convention came into force in 1948?
67 Has the UN recognized the 1915 genocide?
68 Has anyone recently examined the Armenian case from a legal perspective?
69 Can we accuse today's Turkey, which was first established in 1923, for the genocide perpetrated in 1915?

64 How did the UN Genocide Convention come to be and what is its background?

The word genocide consists of the two words genos (Greek for family, tribe or race) and -cide (derivate from the Latin cidium for "killing") and was first coined during early 1940s by the Polish-Jewish lawyer Raphael Lemkin. Soon after WWII Lemkin used the term in a draft for the 1946 UN Security Council Resolution I:96 which would later become the Convention on the Prevention and Punishment of the Crime of Genocide.35 Lemkin's thoughts on the subject went back to 1933 when he strongly affected by the massacres of Syrians in Iraq, events that in turn reminded him of his memories of the mass killings of Armenians during the First World War.36 Lemkin had read about Soghomon Tehlirian's trial in Berlin, where he was charged with murdering Talaat Pasha, the former Ottoman interior minister and one of the architects of the Armenian Genocide. Tehlirian, himself a survivor of the genocide, had tracked down Talaat to Berlin, where the former Ottoman interior minister had escaped justice after the end of the war in 1918, and shot him in the street. At the trial, Lemkin realized the paradox of the situation: it is a violation by Tehlirian to murder an individual, but there is no crime of his oppressors to have murdered more than a million individuals."37 This knowledge together with Lemkin's witnessing of the Nazi treatment of the Jews during WWII would lead to his efforts for establishing the present-day UN Genocide Convention. As for Tehlirian, he was acquitted by the German court, pleading that Talaat was de facto already condemned by law to death in absentia, sentenced by Turkish court martials for war crimes and crimes against humanity which he made himself guilty of, among others for the committed atrocities against Armenians during the WWI.


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65 How does the UN Genocide Convention read?

Article 2) In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.38


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66 How can the UN Genocide Convention apply to the 1915 genocide when the Convention came into force in 1948?

The UN Genocide Convention is actually reinforced by other conventions which ensures that genocide criminals cannot escape responsibility through the prescription of the crime. Furthermore, United Nations Convention of 1948 is not a new law, but merely a ratification of existing international laws on "crimes against humanity" according to the Sèvres Treaty's Article 230 (see question 18). In addition, the UN Convention on the Non-applicability of Statutory Limitations for War Crimes and Crimes against Humanity (adopted November 26, 1968, in force since November 11, 1970) determines its retroactive nature. But most importantly, when discussing the issue of the applicability of the term genocide on the Armenian events, one should differ between the definition and the existing law. Even though one would express reservation for whether the law could be retroactively applicable on the events of 1915, the definition is indeed timeless. For this reason, both the massacres in the Ottoman Empire as well as the Holocaust are regarded as cases of genocide under the UN Convention although both occurred before the Convention's inception.


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67 Has the UN recognized the 1915 genocide?

Another distortion of the truth and a misleading argument, i.e. some of the characteristic features of the genocide denial (see questions 47 and 48) are the references to details and hairsplitting definitions to avoid the core issue. It is true that the UN has never discussed the Armenian question in the General Assembly or the Security Council. However, the fact is that not all issues raised in these forums. The body responsible for particular issues concerning genocide and other crimes against humanity are first and foremost discussed in the UN Commission for Human Rights, based in Geneva. During UN's history two major studies/reports have been done on the crime of genocide. The first was the so-called Ruhashyankiko Report from 1978, while the Whitaker Report was finalized in 1985. In fact, in both cases, the reporters included the Armenian events as an example of committed genocides in the 20th century. However, in both cases this mentioning caused a fierce lobbying by the Turkish State to rewrite the report and exclude the Armenian genocide. While Ruhashyankiko yielded for that pressure and excluded the Armenian case, Whitaker stood firm in his inclusion of the Armenian example. Benjamin Whitaker submitted his report in 1985 (Economic and Social Council Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Thirty-eighth session, Item 4 of the provisional agenda E/CN.4/Sub.2/1985/6). The 1915 genocide is mentioned in several places as an example of committed genocides during the 1900s. The report was passed by a subcommittee of the UN Human Rights Committee by a vote of 14 to 1 (four abstentions) in August 1985. In addition, it should be reminded that the present-day convention is in fact based on the Armenian fate during WWI (see question 64).


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68 Has anyone recently examined the Armenian case from a legal perspective?

The issue of the Armenian massacres being a genocide or not has actually been tried by an independent legal counsel on behalf of the International Center for Transitional Justice, ICTJ. In 2002 an attempt was made for reconciliation between Armenians and Turks, upon which a joint commission was formed: The Turkish Armenian Reconciliation Commission. The commission turned to ICTJ requesting a legal examination of the Armenians events during WWI to see whether these can be regarded as genocide in accordance with the UN Convention. In the seventeen page strictly legal analysis of the Armenian events, the conclusion reads "... the Events, viewed collectively, can thus be said to include all of the elements of the crime of genocide as defined in the Convention, and legal scholars as well as historians, politicians, journalists and other people would be justified in continuing to so describe them."39 It is noteworthy that the denialists have simply chosen to disregard this analysis and its conclusion, calling yet for another "independent commission" to review the events.


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69 Can we accuse today's Turkey, which was first established in 1923, for the genocide perpetrated in 1915?

An argument often used to avoid recognizing the Armenian genocide is that the Ottoman Empire does not exist and present-day Turkey therefore has no responsibility, which is incorrect. There are actually two international rulings which establishes that the present-day Turkish Republic is a legitimate continuation of the Ottoman Empire, namely, the Ottoman Debt Arbitration (1925) and the case Roselius & Co. vs. Karsten & Turkish Republic (1926).40 One can in brief say that a state's identity will be determined on a few key factors such as its institutions, administration, army, political parties as well as the capital and the territory, the so-called "objective" factors. There are also "subjective" factors, including the state's self-perception as the heir to its predecessor. While the former factors are quite indisputable in regard to the continuity between the Young Turk and Kemalist governments (see question 80), the latter is quite selective in regard to present-day Turkey: while openly embracing the more vaunted pages of the Ottoman Empire, the less flattering sides, including the genocide of Christians during the First World War, are denied and erased from the merits of its predecessor.


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Notes
35) James E. Mace, Facts and Values: A Personal Intellectual Exploration, in Samuel Totten and Steven Leonard Jacob (eds.), Pioneers of Genocide Studies, New Jersey, 2002, p. 65.
36) John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention(Basingstoke: Palgrave Macmillan, 2008), p. 15.
37) Kristian Gerner and Klas-Göran Karlsson, Folkmordens historia, Perspektiv på det moderna samhällets skuggsida, Stockholm, 2005, p. 67.< br> 38) UN Commission on Human Rights, The Convention on the Prevention and Punishment of the Crime of Genocide, 1948.
39) The International Center of Transitional Justice, The Applicability of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide to Events Which Occurred During the Early Twentieth Century: Legal Analysis Prepared for the International Center for Transitional Justice, New York, 2002; https://www.ictj.org/sites/default/files/ICTJ-Turkey-Armenian-Reconciliation-2002-English.pdf.
40) Crawford, James, The Creation of States in International Law (Oxford: Oxford University Press, 2007), p. 676. See also Joshua W . Walker, Turkey's Imperial Legacy: Understanding Contemporary Turkey through its Ottoman Past in Perspectives on Global Development and Technology (Leiden: Brill, no. 8, 2009), p. 498..


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