File #2272: "2018_Book_TheArmenianMassacresOf19151916.pdf"
Text
1|Contents|7
1|Contributors|9
1|1 Introduction|11
2|Abstract|11
1|2 Historical Introduction: World War I and the Dynamics of the Armenian Genocide|20
2|Abstract|20
2|References|32
1|Searching for a Legal Definition|33
1|3 The Armenian Massacres as the Murder of a Nation?|34
2|Abstract|34
2|1 Introduction|35
2|2 A Preliminary Legal Question: The Deliberate Destruction of a Group Protected by the Genocide Convention of 1948 Before Its Entry into Force|46
3|2.1 The Non-applicability of the Convention to the Destruction of a Group Protected Before Its Entry into Force|46
3|2.2 Genocide as a State Violation of International Law and as a Crime of International Concern Before 1948|47
2|3 The Determinants of the Armenian Massacres and Deportations in Light of the Genocide Convention Criteria as Applied by the ICTY/ICTR and ICJ Jurisprudence|50
3|3.1 The Facts|50
4|3.1.1 The Killings of Armenian Military and Civilians|51
4|3.1.2 Causing Serious Bodily or Mental Harm to Armenians|54
4|3.1.3 Deliberately Inflicting on the Armenian Community Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part|57
4|3.1.4 Imposing Measures Intended to Prevent Births Within the Armenian Community|58
4|3.1.5 Forcibly Transferring Armenian Christian Children to the Muslim Community|58
4|3.1.6 Reading the Facts Explored Pursuant to the Official Turkish Positions and that of Some Historians|59
4|3.1.7 The Sublime Porte Destroyed in Substantial Part the Ottoman Armenian Community|63
3|3.2 The Specific Moral Element|64
4|3.2.1 A Short Preliminary Clarification|64
4|3.2.2 Turkey’s Claim that the Intent to Destroy the Armenian Community Is Lacking|64
4|3.2.3 The Direct Evidence of the Specific Intent to Destroy the Armenian Nation as Such|68
4|3.2.4 The Circumstantial Evidence of the Specific Intent to Destroy the Armenian Nation as Such|72
4|3.2.5 The Intent to Destroy in a Substantial Part the Armenian Nation as Such Is Proven|80
2|4 The Applicable Law|80
3|4.1 The San Stefano and Berlin Treaties|80
4|4.1.1 Obligations of the Ottoman Empire|80
4|4.1.2 Obligations of European States Parties|82
3|4.2 The Applicability of the Martens Clause to the Alleged Armenian Uprising|83
3|4.3 The Applicability of the Laws of Humanity to the Events of 1915–16|85
3|4.4 The Laws of Humanity at the Paris Peace Conference|88
3|4.5 Crimes Against Humanity and the Issue of Competent Jurisdiction|90
4|4.5.1 A Preliminary Comparison with the Individual Criminal Responsibility for War Crimes|90
4|4.5.2 Crimes Against Humanity at the Paris Peace Conference and in the Sèvres Treaty|91
4|4.5.3 The Issue of Jurisdiction on Crimes Against Humanity|93
3|4.6 The Reparation Obligations|97
4|4.6.1 The Measures of Reparation in the Treaty of Sèvres|97
4|4.6.2 The Reparation Obligations of the Ottoman Empire and the Republic of Turkey: Some Brief Remarks|100
2|5 Final Remarks|103
2|Post scriptum|108
2|References|108
1|4 On the Applicability of the Genocide Convention to the Armenian Massacres|112
2|Abstract|112
2|1 Introduction|113
2|2 States’ Obligation to Prevent and to not Perform Acts of Genocide Under the Genocide Convention|114
2|3 The Non-retroactivity of Treaties|119
3|3.1 Is There Room for Exceptions to the Principle of Non-retroactivity in the Genocide Convention?|121
3|3.2 The Effects of jus cogens on the Principle of Non-retroactivity|124
3|3.3 The Nineteenth-Century Treaties for the Protection of Minorities|127
2|4 Concluding Remarks|128
2|References|129
1|5 Is Customary Law on the Prohibition to States to Commit Acts of Genocide Applicable to the Armenian Massacres?|131
2|Abstract|131
2|1 Introduction|132
2|2 The Prohibition for States to Commit Acts of Genocide|133
2|3 The Behavior of the Different States Involved During and After Metz Yeghern|140
2|4 Non Retroactivity of the Peremptory Rule|143
2|5 The Effects of the Peremptory Rule upon States’ Contemporary Conduct|144
2|6 Conclusions|145
2|References|146
1|Which Possible Legal Consequences?|147
1|6 Metz Yeghern and the Origin of International Norms on the Punishment of Crimes|148
2|Abstract|148
2|1 Introduction|149
2|2 The Start of Metz Yeghern and the Declaration of 24 April 1915|150
2|3 The Deportations to Syria and the Second Phase of Metz Yeghern|152
2|4 Post-war Developments at National Level: The Commissions of Enquiry and the Domestic Trials|153
2|5 The International Reactions: The “Commission on Responsibility of Authors of the War and on Enforcement of Penalties” and the “Dissenting Opinion” by Its American Members|156
3|5.1 Applicable Law|157
3|5.2 Personal Responsibility|158
3|5.3 Jurisdiction and Appropriate Tribunal|158
3|5.4 The “Dissenting Opinion” by the American Members|160
2|6 Continued: The Provisions on “Penalties” in the Treaty of Sèvres and Their Subsequent Abandonment|162
2|7 Concluding Remarks|164
2|References|165
1|7 Armenian Cultural Properties and Cultural Heritage: What Protection under International Law One Hundred Years Later?|166
2|Abstract|166
2|1 The “‘G’ Word” Was Coined Bearing in Mind the Deportations and Massacres of the Armenians and Holding the Cultural Factor in Great Consideration|167
2|2 Massive Destruction and Loss of Armenian Cultural Properties During World War I: A History yet to Be Fully Traced, Told and Recognised, to Be Read in the Framework of the Laws and Customs of War on Land|169
2|3 Would the Destruction of Armenian Cultural Properties by the Territorial State Fall Today Under a Prohibition in International Law?|172
2|4 The Fate of Armenian Exported and Confiscated Cultural Properties, the First Legal Cases and Recent Virtuous International Practices|177
2|5 Today for Yesterday and Tomorrow: Armenian Cultural Heritage Internationally Protected as a Sign of Shared Recognition|180
2|References|183
1|8 What Reparations for the Descendants of the Victims of “the Armenian Genocide”?|185
2|Abstract|185
2|1 Introduction|186
2|2 Legal Bases|187
2|3 What Forms of Reparations?|189
2|4 Multi-generational Legacy of Victimization and Types of Reparations Aimed at Addressing It|192
2|References|195
1|Denying the Armenian Massacres|196
1|9 The Armenian Massacres and the Price of Memory: Impossible to Forget, Forbidden to Remember|197
2|Abstract|197
2|1 Introduction|198
2|2 Right to Truth and to Memory in International Law|201
2|3 International Practice Concerning the Massacres of the Armenians|206
2|4 The (Non)-Right to Memory of the Armenian Massacres in Turkish Law|223
2|5 Concluding Remarks|228
2|References|235
1|10 Denying the Armenian Genocide in International and European Law|239
2|Abstract|239
2|1 Introduction|239
2|2 International Acts that Criminalize Denial Conduct|241
2|3 Framework Decision 2008/913/JHA of the European Union|243
2|4 The Case-Law of the European Court of Human Rights|244
2|5 The Main Difficulties in the Criminalization of Denial Conduct in the Light of International Practice|247
2|6 Concluding Observations|249
2|References|250
1|11 Criminalizing the Denial of 1915–1916 Armenian Massacres and the European Court of Human Rights: Perinçek v Switzerland|252
2|Abstract|252
2|1 The Exercise of the Freedom of Expression Under Article 10 of the European Convention on Human Rights: The Rights to Hold Opinions, to Impart and Receive Information and Ideas|253
2|2 The Legitimate Interference with the Right to Freedom of Expression Under Article 10(2) of the Convention|255
2|3 The Application of the “Abuse Clause” Provided by Article 17 of the Convention in Case of Denial of the Holocaust|258
2|4 The Justification of a Genocide as an Aim Pursued by the Author of a Negationist Statement—A Comparison Between the Spanish Constitutional Court and the ECtHR’s Approach: The Varela Geis and Perinçek Cases|261
2|5 The Perinçek Case Solution: Freedom of Expression v Right to Respect for Private Life|264
2|6 Conclusions|269
2|References|271
1|The Armenian Massacres and the European Union: Active Player or Festin de Pierre?|273
1|12 Is the Denial of the “Armenian Genocide” an Obstacle to Turkey’s Accession to the EU?|274
2|Abstract|274
2|1 Introduction|275
2|2 Turkey–EU: An Unusual Accession Process|277
2|3 The “Armenian Genocide” and the Copenhagen Criteria|282
2|4 Guaranteeing the Freedom of Expression and Good Neighbourly Relations|288
2|5 Conclusions|292
2|References|295
1|13 The European Parliament as the Human Rights Gatekeeper of the Union?|297
2|Abstract|297
2|1 Introduction|298
2|2 Turkey’s Accession and the Armenian Genocide: The Position of the European Parliament|300
2|3 Turkey’s Accession and the Armenian Genocide: The Position of the European Council and the European Commission|302
2|4 Krikorian|303
2|5 Conclusion|304
2|References|307
1|14 The EU and the Turkish Recognition of the Armenian “Genocide” in the Broader Framework of the EU External Action: A Tale of Possibilities Yet to Be Explored|310
2|Abstract|310
2|1 Introduction|311
2|2 The Affaire of the Recognition of the “Genocide” in EU/Turkey Bilateral Relations: A Few Weak Traces in the Community’s Association with Turkey Before the Treaty of Maastricht|312
2|3 Availability of Tools Versus Lack of Action Post Treaty of Maastricht|316
2|4 The Union and Turkey/Armenia Relations: Watching from a Distance|320
2|5 Conclusions|325
2|References|327
1|Contributors|9
1|1 Introduction|11
2|Abstract|11
1|2 Historical Introduction: World War I and the Dynamics of the Armenian Genocide|20
2|Abstract|20
2|References|32
1|Searching for a Legal Definition|33
1|3 The Armenian Massacres as the Murder of a Nation?|34
2|Abstract|34
2|1 Introduction|35
2|2 A Preliminary Legal Question: The Deliberate Destruction of a Group Protected by the Genocide Convention of 1948 Before Its Entry into Force|46
3|2.1 The Non-applicability of the Convention to the Destruction of a Group Protected Before Its Entry into Force|46
3|2.2 Genocide as a State Violation of International Law and as a Crime of International Concern Before 1948|47
2|3 The Determinants of the Armenian Massacres and Deportations in Light of the Genocide Convention Criteria as Applied by the ICTY/ICTR and ICJ Jurisprudence|50
3|3.1 The Facts|50
4|3.1.1 The Killings of Armenian Military and Civilians|51
4|3.1.2 Causing Serious Bodily or Mental Harm to Armenians|54
4|3.1.3 Deliberately Inflicting on the Armenian Community Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part|57
4|3.1.4 Imposing Measures Intended to Prevent Births Within the Armenian Community|58
4|3.1.5 Forcibly Transferring Armenian Christian Children to the Muslim Community|58
4|3.1.6 Reading the Facts Explored Pursuant to the Official Turkish Positions and that of Some Historians|59
4|3.1.7 The Sublime Porte Destroyed in Substantial Part the Ottoman Armenian Community|63
3|3.2 The Specific Moral Element|64
4|3.2.1 A Short Preliminary Clarification|64
4|3.2.2 Turkey’s Claim that the Intent to Destroy the Armenian Community Is Lacking|64
4|3.2.3 The Direct Evidence of the Specific Intent to Destroy the Armenian Nation as Such|68
4|3.2.4 The Circumstantial Evidence of the Specific Intent to Destroy the Armenian Nation as Such|72
4|3.2.5 The Intent to Destroy in a Substantial Part the Armenian Nation as Such Is Proven|80
2|4 The Applicable Law|80
3|4.1 The San Stefano and Berlin Treaties|80
4|4.1.1 Obligations of the Ottoman Empire|80
4|4.1.2 Obligations of European States Parties|82
3|4.2 The Applicability of the Martens Clause to the Alleged Armenian Uprising|83
3|4.3 The Applicability of the Laws of Humanity to the Events of 1915–16|85
3|4.4 The Laws of Humanity at the Paris Peace Conference|88
3|4.5 Crimes Against Humanity and the Issue of Competent Jurisdiction|90
4|4.5.1 A Preliminary Comparison with the Individual Criminal Responsibility for War Crimes|90
4|4.5.2 Crimes Against Humanity at the Paris Peace Conference and in the Sèvres Treaty|91
4|4.5.3 The Issue of Jurisdiction on Crimes Against Humanity|93
3|4.6 The Reparation Obligations|97
4|4.6.1 The Measures of Reparation in the Treaty of Sèvres|97
4|4.6.2 The Reparation Obligations of the Ottoman Empire and the Republic of Turkey: Some Brief Remarks|100
2|5 Final Remarks|103
2|Post scriptum|108
2|References|108
1|4 On the Applicability of the Genocide Convention to the Armenian Massacres|112
2|Abstract|112
2|1 Introduction|113
2|2 States’ Obligation to Prevent and to not Perform Acts of Genocide Under the Genocide Convention|114
2|3 The Non-retroactivity of Treaties|119
3|3.1 Is There Room for Exceptions to the Principle of Non-retroactivity in the Genocide Convention?|121
3|3.2 The Effects of jus cogens on the Principle of Non-retroactivity|124
3|3.3 The Nineteenth-Century Treaties for the Protection of Minorities|127
2|4 Concluding Remarks|128
2|References|129
1|5 Is Customary Law on the Prohibition to States to Commit Acts of Genocide Applicable to the Armenian Massacres?|131
2|Abstract|131
2|1 Introduction|132
2|2 The Prohibition for States to Commit Acts of Genocide|133
2|3 The Behavior of the Different States Involved During and After Metz Yeghern|140
2|4 Non Retroactivity of the Peremptory Rule|143
2|5 The Effects of the Peremptory Rule upon States’ Contemporary Conduct|144
2|6 Conclusions|145
2|References|146
1|Which Possible Legal Consequences?|147
1|6 Metz Yeghern and the Origin of International Norms on the Punishment of Crimes|148
2|Abstract|148
2|1 Introduction|149
2|2 The Start of Metz Yeghern and the Declaration of 24 April 1915|150
2|3 The Deportations to Syria and the Second Phase of Metz Yeghern|152
2|4 Post-war Developments at National Level: The Commissions of Enquiry and the Domestic Trials|153
2|5 The International Reactions: The “Commission on Responsibility of Authors of the War and on Enforcement of Penalties” and the “Dissenting Opinion” by Its American Members|156
3|5.1 Applicable Law|157
3|5.2 Personal Responsibility|158
3|5.3 Jurisdiction and Appropriate Tribunal|158
3|5.4 The “Dissenting Opinion” by the American Members|160
2|6 Continued: The Provisions on “Penalties” in the Treaty of Sèvres and Their Subsequent Abandonment|162
2|7 Concluding Remarks|164
2|References|165
1|7 Armenian Cultural Properties and Cultural Heritage: What Protection under International Law One Hundred Years Later?|166
2|Abstract|166
2|1 The “‘G’ Word” Was Coined Bearing in Mind the Deportations and Massacres of the Armenians and Holding the Cultural Factor in Great Consideration|167
2|2 Massive Destruction and Loss of Armenian Cultural Properties During World War I: A History yet to Be Fully Traced, Told and Recognised, to Be Read in the Framework of the Laws and Customs of War on Land|169
2|3 Would the Destruction of Armenian Cultural Properties by the Territorial State Fall Today Under a Prohibition in International Law?|172
2|4 The Fate of Armenian Exported and Confiscated Cultural Properties, the First Legal Cases and Recent Virtuous International Practices|177
2|5 Today for Yesterday and Tomorrow: Armenian Cultural Heritage Internationally Protected as a Sign of Shared Recognition|180
2|References|183
1|8 What Reparations for the Descendants of the Victims of “the Armenian Genocide”?|185
2|Abstract|185
2|1 Introduction|186
2|2 Legal Bases|187
2|3 What Forms of Reparations?|189
2|4 Multi-generational Legacy of Victimization and Types of Reparations Aimed at Addressing It|192
2|References|195
1|Denying the Armenian Massacres|196
1|9 The Armenian Massacres and the Price of Memory: Impossible to Forget, Forbidden to Remember|197
2|Abstract|197
2|1 Introduction|198
2|2 Right to Truth and to Memory in International Law|201
2|3 International Practice Concerning the Massacres of the Armenians|206
2|4 The (Non)-Right to Memory of the Armenian Massacres in Turkish Law|223
2|5 Concluding Remarks|228
2|References|235
1|10 Denying the Armenian Genocide in International and European Law|239
2|Abstract|239
2|1 Introduction|239
2|2 International Acts that Criminalize Denial Conduct|241
2|3 Framework Decision 2008/913/JHA of the European Union|243
2|4 The Case-Law of the European Court of Human Rights|244
2|5 The Main Difficulties in the Criminalization of Denial Conduct in the Light of International Practice|247
2|6 Concluding Observations|249
2|References|250
1|11 Criminalizing the Denial of 1915–1916 Armenian Massacres and the European Court of Human Rights: Perinçek v Switzerland|252
2|Abstract|252
2|1 The Exercise of the Freedom of Expression Under Article 10 of the European Convention on Human Rights: The Rights to Hold Opinions, to Impart and Receive Information and Ideas|253
2|2 The Legitimate Interference with the Right to Freedom of Expression Under Article 10(2) of the Convention|255
2|3 The Application of the “Abuse Clause” Provided by Article 17 of the Convention in Case of Denial of the Holocaust|258
2|4 The Justification of a Genocide as an Aim Pursued by the Author of a Negationist Statement—A Comparison Between the Spanish Constitutional Court and the ECtHR’s Approach: The Varela Geis and Perinçek Cases|261
2|5 The Perinçek Case Solution: Freedom of Expression v Right to Respect for Private Life|264
2|6 Conclusions|269
2|References|271
1|The Armenian Massacres and the European Union: Active Player or Festin de Pierre?|273
1|12 Is the Denial of the “Armenian Genocide” an Obstacle to Turkey’s Accession to the EU?|274
2|Abstract|274
2|1 Introduction|275
2|2 Turkey–EU: An Unusual Accession Process|277
2|3 The “Armenian Genocide” and the Copenhagen Criteria|282
2|4 Guaranteeing the Freedom of Expression and Good Neighbourly Relations|288
2|5 Conclusions|292
2|References|295
1|13 The European Parliament as the Human Rights Gatekeeper of the Union?|297
2|Abstract|297
2|1 Introduction|298
2|2 Turkey’s Accession and the Armenian Genocide: The Position of the European Parliament|300
2|3 Turkey’s Accession and the Armenian Genocide: The Position of the European Council and the European Commission|302
2|4 Krikorian|303
2|5 Conclusion|304
2|References|307
1|14 The EU and the Turkish Recognition of the Armenian “Genocide” in the Broader Framework of the EU External Action: A Tale of Possibilities Yet to Be Explored|310
2|Abstract|310
2|1 Introduction|311
2|2 The Affaire of the Recognition of the “Genocide” in EU/Turkey Bilateral Relations: A Few Weak Traces in the Community’s Association with Turkey Before the Treaty of Maastricht|312
2|3 Availability of Tools Versus Lack of Action Post Treaty of Maastricht|316
2|4 The Union and Turkey/Armenia Relations: Watching from a Distance|320
2|5 Conclusions|325
2|References|327