McCarthy was asked by the Turkish Forum to provide an analysis of the
statement of The International Center for Transitional Justice (ICTJ), when
that body was asked to intervene during the talks of The Turkish-Armenian
Other analyses of genocide
most dangerous problem is that, once the word genocide is used, people do not think of
the UN definition. They think of what Hitler did to the Jews.
It must first be understood that the ICTJ statement
that the word
"genocide" can be applied to what happened to the Armenians is true. They
applied the UN Genocide Convention definitions to the history of one group, the Armenians,
during World War I. Note what ICTJ states as defining the so-called genocide:
i) The perpetrator killed one or more persons.
ii) Such person or persons belonged to a particular national, ethnical, racial, or
iii) The conduct took place in the context of a manifest pattern of
similar conduct directed against that group.
All of those statements were true of the so-called "Armenian Genocide." There
were indeed many Muslims of Eastern Anatolia who killed Armenians. That fulfills the
definition. Indeed, the definition is fulfilled whenever two "national, ethnical,
racial, or religious groups" fight each other.
The basic problem is that the UN definition of genocide is essentially meaningless. It can
be applied to almost any conflict. The most dangerous problem is that, once the word
genocide is used, people do not think of the UN definition. They think of what Hitler did
to the Jews. Those who read that the ICTJ has decided that the Turks committed genocide
will seldom read the quasi-legal document produced by the ICTJ. Often they will not even
know there is a UN Genocide Convention. Instead, their prejudices will be reinforced.
Their knowledge will not be increased. They will blame
the Turks without knowing anything of the real history of the events.
By the UN definition there indeed was a genocide of the Armenians. There also was a
genocide of the Muslims and a genocide of the Turks. When the Armenian Nationalists killed
the Muslims of Van, was that not genocide? When they rounded up the villagers around Van,
herded them into the great natural bowl in Zeve, then killed them, was that not genocide?
Was the Armenian murder of the innocent and unarmed Muslims of Erzurum,
Erzincan, Tercan, and so many other places not genocide?
...The authors completely adopted the
Armenian Nationalists' view of history.
Beyond the fact that the UN definition
is meaningless there are some extremely troubling facets to the ICTJ analysis: They
state, "This memorandum is a legal, not a factual or historical analysis."
How, one might ask, can anyone make a decision on the events of World War I without
an historical analysis? Of course, ICTJ does make an historical analysis. Indeed,
they also make a "factual analysis," using a very selected group of facts.
While a number of what may be called the standard works of the Armenian Cause are
cited, only one brief book published by Turkish Government and some Government web
sites are cited (thus reinforcing the erroneous view that only the Turkish
Government objects to the Armenian version of history.) Reading the text, it is
obvious that the authors completely adopted the Armenian Nationalists' view of
history. They do not seem to have attempted to consider the other side. Had they
done so, they would have seen that applying the word "genocide" only to
the Turks was anything but a neutral statement of fact.
If one only utilizes the fabrications in sources such as the Bryce
Report or the missionary reports, then "genocide" is a foregone
conclusion. Those books contain few dead Turks. The only suffering mentioned is
Armenian suffering. Using only such sources results in a complete distortion of
history. World War I propaganda becomes modern propaganda, dressed in a
I have no idea of the process used in naming the ICTJ to make this decision. Nor do
I know how the ICTJ went about making their decision. Perhaps their good will was
wrongly assumed. More likely, they simply did not know what they were doing. They
may have believed they were making a simple legal statement that needed little
historical analysis. That is a sure path to error, because those who believe they
do not need to study history all too often accept what they have always been told
without examining the facts, exactly what happened here.
I have supported and still support the concept of a Turkish Armenian Reconciliation
Commission. Anything that brings contending sides together to discuss their
differences is good. But the TARC made a false step in asking the ICTJ for their
opinion. I have never agreed with the idea of submitting historical questions to
lawyers for final answers. What is needed is a commission of historians, not a
commission of lawyers.
|Food for Thought:
The principle called "Nullum crimen, nulla poena sine
praevia lege poenali" is a basic maxim in continental European legal thinking,and
recognized in virtually all modern democracies. It was authored by Paul Johann Anselm
Ritter von Feuerbach as part of the Bavarian Code in 1813. This maxim states that there
can be no crime committed, and no punishment meted out, without a violation of penal law
as it existed at the time. This basic legal principle has been incorporated into
international criminal law. It thus prohibits the creation of ex post facto laws.
What this basically means is that penal law cannot be enacted retroactively, for an
offense not existing when that offense was committed ("nullum crimen"); that is,
one cannot be penalized for doing something that isn't prohibited by law.
Apart from it, the alleged acts against Armenians in 1915 do
not constitute the crime of genocide because International law did not proscribe it as the
crime of genocide in 1915. Moreover, if we apply logic to generality then, “the killing
of Jesus on (the) cross constitutes the crime (of) torture under the European Convention
on Human Rights”. How it is consistent with the common sense? How can you apply the
present concepts retroactively? How could any reasonable person argue that (the) British
Empire’s occupation of Egypt in (the) 1800(s) constitutes the crime of aggression? Was
that act considered aggression at that time?
Wednesday, April 6, 2005
The weakest point of the reply given by the International Center for Transitional
Justice (ICTJ) to an “unasked question” was that by putting forth the thesis “If
the Genocide Convention were to be applied retroactively, the Armenian incidents
could have been considered a genocide” is related to the “motive” behind the
“intent to destroy.”
Perpetration of any crime involves a specific “act.” When a criminal act, for
example a murder, is committed, the reason for the crime, that is, the motive that
led to the crime, is of secondary importance. In a sudden fit of anger a person may
kill another person who has insulted him. Another person may attempt to commit
robbery and kill the victim when the victim resists that attempt. The difference (in
the former's favor) between these two cases would be taken into consideration by a
judge, albeit only as a mitigating circumstance.
However, in cases of genocide the “motive” is much more important. The Nuremberg
court's charter took the “motive” into account, and the court considered that
factor when meting out their sentences. In that case the motive was anti-Semitism,
that is, racism. Without anti-Semitism the Holocaust could never have happened. The
Ottomans, however, did not harbor any such racist hatred towards the Armenians,
hence the absence of motive for the intent to destroy.
At the end of paragraph two of the convention is the phrase, “as such.” That
phrase is highly important on issues pertaining to genocide because in that
paragraph that particular phrase means annihilation of a given group merely because
of its identity. The ICTJ document quotes the Siamese delegate's interpretation of
that phrase (p. 17). That interpretation can hardly be understandable and it is
interesting that this interpretation was obtained from a delegate who had not played
a significant part in the negotiations. Maybe the ICTJ's legal "expert"
was the Siamese twin of that person!
Those who would like to have more information on this issue can read pages 245-256
of the book “Genocide in International Law” by William A. Shabas. The writer
recounts that the motive of racism was upheld by many delegates including those from
Lebanon, the Soviet Union, Poland, China, the Philippines and New Zealand and
further notes that when the phrase “as such” was proposed by the Venezuelan
delegate the United States accepted it.
According to that formula, genocide is the killing of the members of a group not
because they have done something (for example, rebelling or aiding the foreign
armies etc.) but merely because they are members of that group (that is, because
they are considered members of a dehumanized race such as the Jews had been).
In his interpretation the Siamese delegate cites the “political group” as one of
the groups that would be the target of a genocidal attempt to destroy. However, the
drafting committee did not include the “political group” among the four groups
(national, racial, religious and ethnic) that would be protected by the convention.
This is the crucial point. Political group means a group that engages in a struggle
with political aims. The Armenians fighting to set up their own independent state on
a piece of land made a political group par excellence. But then the other side, the
Turks in this case, had the right to struggle in order to retain that piece of land
they also deemed to be their homeland and on which their members constituted by far
the majority of the population.
In this context one side can rebel and the other side can quell the rebellion; there
can be mutual killings between the civilians; one side can join hands with the
foreigners and thus commit high treason; the other side can attempt a relocation of
the former while crimes may be committed in the course of that relocation, etc.
Crimes thus committed against civilians would not come under the category of
genocide. Hence the Armenians were subjected to that kind of treatment not because
they were Armenians but because they had engaged in armed struggle to attain their
political aims. Besides, many more Turks and/or Muslims were also subjected to that
same kind of treatment by the Armenians.
The “legal” study made by the ICTJ distorts these facts. If, because of that
study, the Armenians really believe that they are “in the right” from a legal
standpoint (in other words, if they believe there had been a genocide from a legal
standpoint), they can invite Turkey to adjudication or to arbitration immediately.
It is because they know they cannot take that path that they elicit such deceitful
documents as the ICTJ study. Look at the Armenians' well-known ANI Web site and you
will see that all the documents are fakes. The ”Talat Pasha telegrams” were also
Armenians believe the Turks had so grossly victimized them they think they are
entitled to engage in any kind of fraud in self-defense. David Phillips should have
acted with the awareness of this fact. On the contrary, by supporting that weakness
of the Armenians he actually pushed the Turkish Armenian Reconciliation Commission (TARC)
into failure. He doesn't know about the Armenian incidents and hasn't even read the
convention. When I asked him why he did not study these subjects, he said if he
learned about them he might become biased. However, his ignorance has not made him
The results wouldn't have been like these if there were a more mature, more
emotionally balanced and more ethical person in David Phillips's place.