Global Justice in the 21st Century

            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 99^th anniversary of the 2015 events. As the April 24^th 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 100^th 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 21^st 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 20^th 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.

Tags: Armenian Genocide, Genocide Convention, international criminal law, Nuremberg, temporal justice, Turkey, United States Senate