Derecho Internacional Público – dipublico.org Cátedra I de Derecho Internacional Público de la Facultad de Derecho y Ciencias Políticas de la Universidad Católica de La Plata – Argentina
Vahagn Avedian is a PhD candidate in the Department of History, Lund University and Chief Editor of Armenica.org. This post summarises his article which was published in (2012) 23 EJIL 797-820.
The Republic of Turkey’s denial of the Armenian genocide has evolved, abandoning the simple denial of the ever growing facts. The sophistication includes revisionism, reinterpretation of the UN Genocide Convention, but also pleading the discontinuity between the Ottoman Empire and present-day Turkey. This last argument is quite interesting due to its paradoxical nature: if there is a discontinuity, how come Turkey, unlike Germany, is ardently defending its otherwise flawed predecessor? West Germany chose to reinstate its international prestige by condemning the wrongdoings of Nazi Germany and compensating the victims. While condemning the crimes, East Germany refused to accept responsibility to compensate, referring to the discontinuity between the two states. Turkey has chosen to ardently refute it all together. This article aims to elucidate this aspect of the Turkish denial as a deliberate means to evade the issue of compensation. Furthermore, by failing to stop the WWI era massacres and confiscations (which aimed to create a ‘Turkey for Turks’), but more importantly, by continuing the same internationally wrongful acts committed against the Armenian population and other minorities, Turkey made itself responsible for not only its own actions, but also for those of its predecessor, the Young Turk Government. In my article, I show this by applying the norms of existing international law in regard to state identity, continuity, and responsibility on the historical data at hand.
Before we continue, it must be emphasized that I do not limit my analysis to the definition in the UN Genocide Convention and its legal restraints. Instead, I examine the issues from the perspective of internationally wrongful acts more generally.
Turkey as the Continuation of the Ottoman Empire
A first logical step would be to establish the identity of the two Turkish states and possible continuity. Dividing the determining factors into ‘objective’ and ‘subjective’ categories, K. G. Bühler asserts that it is not merely ‘objective’ factors such as substantial part of territory, population, and armed forces, that bear upon state identity and continuity, but ‘subjective’ factors, such as the successor’s claim to continuity and its self-conception, also do matter [State Succession and Membership in International Organizations: Legal Treaties versus Political Pragmatism (2001), at 14]. Recent changes in Europe, especially the dissolution of Soviet Union and Yugoslavia confirm this vision of state identity and continuity. Turkey’s case is quite similar to that of Russia which regarded as the continuation of the Soviet Union. In fact, there are two arbitral rulings: the Ottoman Debt Arbitration and Roselius & Co v. Karsten and the Turkish Republic, which regard Turkey as the continuation of the Ottoman Empire.
In my article I also examine a significant amount of historic data which indicates clearly that the Republic of Turkey does bear the identity of its Ottoman predecessor and is considered to be the continuity of the Ottoman State. The revolution, the constitutional change, or the territorial losses did not cause a discontinuity. On the contrary, the research shows that little changed when the republic replaced the empire. The new Nationalists were rather the same old Unionists who simply needed a fresh start in order to relinquish the burdens related with the predecessor. But for a very small clique, almost the entire administrative body, the army and the political establishment were transferred intact to the republic. Many of those accused of war crimes and illegal confiscations were elevated to high positions in the republic and almost none was convicted for the committed internationally wrongful acts. It is in the light of these facts that one must consider the abandonment of the Sèvres Treaty and the total exclusion of the very mention of “Armenia” or “Armenians” in the Lausanne Treaty. The Turkish negotiators at Lausanne were simply representing a regime which consisted and heavily relied on the support of many of the accused suspects.
The Position Even if Turkey Were Not Regarded a Continuation of the Ottoman Empire
Even if, for the sake of the argument, we assume that the continuity of the two Turkish states is disputed, the issue of state succession and, more importantly, the question of the successor’s continued state responsibility with regard to internationally wrongful acts of the predecessor becomes essential. As Bühler notes, the general (and unchallenged) position is that ‘under traditional international law it is firmly established that there is no succession in matters of State responsibility.’ (p. 8) However, the extensive study done by Patrick Dumberry (State Succession to International Responsibility, 2007) shows that ‘the more time a writer spends on this question of succession of States, the more likely he/she is to reject a strict and automatic ”rule” of non-succession’ (35-38). The non-succession aspect is partly based on outdated Roman law, primarily pertaining to the so-called ‘personal character’ of the state and the parallel between the continuity of liability from a person to his heir. As Dumberry points out, this analogy is contested for at least two reasons: (1) the Roman principle pertaining to private law cannot be applied to international law (especially due to the changes since mid 18th century); and (2) the highly personal character of the internationally wrongful act is founded on the outdated concept of culpa (‘faute’) in state responsibility.
Dumberry distinguishes between ‘succession of fact’ and ‘succession of law’, where the former applies to ‘the replacement of one State by another in the responsibility for the international relations of territory’, while the latter refers to the successor state being invested with all the judicial liabilities for its predecessor’s acts (at 15). (Article 30 of International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts provides that a state is ‘obliged to cease the wrongful conduct or, in some circumstances, to offer appropriate assurances and guarantee of non-repetition’. This suggests that in reality there is a distinction between crimes committed by the predecessor and the continuation of the same crime after the date of succession. Thus, Dunberry argues (at 219-9) that: ‘If the new State continues the original internationally wrongful act committed by the predecessor State, that new State should be held accountable not only for its own act committed after the date of succession but also for the damage which was caused by the predecessor State before the date of succession.’ This principle was, among others, applied by the arbitral tribunal in the Lighthouse Arbitration, where ‘Greece, having adopted the illegal conduct of Crete in its recent past as autonomous State, was bound, as successor State, to take upon its charge the financial consequences of the breach of the concession contract’.
Daniel O’Connell (State Succession in Municipal and International Law, 1967), pointing out that there is no general ruling regarding state responsibility on the part of the successor State, makes the following observation: ‘[a]s the Court of the Lighthouse Case said, concrete factors, especially the continuing nature of the wrong, and its adoption by the successor State, must be taken into account.’ However, while international law may thus oblige the successor state to undertake its predecessor’s duties, it cannot interfere in the internal affairs of the successor’s courts. Thus, in practice, it is only by foreign diplomatic pressure that the successor state undertakes these obligations. Furthermore, the successor state is not obliged to undertake the prosecution of criminal proceedings of the predecessor. Nonetheless, the successor seems to be ‘competent to prosecute if it acquires jurisdiction over the place where the crime was committed’ (O’Connell, 169).
The arbitral tribunal based its decisions on different types of factors and circumstances with regard to the internationally wrongful acts, all highly relevant to this study:
(1) the position taken by the predecessor state;
(2) the position taken by the successor state and its actual behaviour in addressing the internationally wrongful acts;
(3) the identification of the entity guilty of the internationally wrongful acts;
(4) the consequences, such as unjust enrichment and justice;
(5) the nature, origin, and character of the obligation breached.
More significantly for the Turkish case, these rules apply to insurrectional movements as well: ‘[t]he conduct of an insurrectional movement which becomes the new government of a State shall be considered an act of that State under international law’.
Dumberry’s analysis of numerous cases, municipal cases as well as one before an international arbitral tribunal and one of state practice, indicate that ‘the continuing State should continue its previous responsibility for these [internationally wrongful acts]’. Nonetheless, political considerations and the existing balance of forces play a major part, and international responsibility is decided on those factors rather than in accordance with general international law. This was clearly evident in the Turkish case, where the major power policies of securing economic and political interests simply outweighed the issue of pursuing the question of punishment for Armenian massacres. This became evident in the differences between the contents of the Sèvres and Lausanne treaties respectively.
Nevertheless, Dumberry’s examination of numerous cases indicates “a clear tendency in modern State practice towards the recognition that successor States should take over the obligations arising from the commission of internationally wrongful acts. It can therefore be concluded that in the context where the predecessor State ceases to exist as a result of the events affecting in territorial integrity (integration, unification and dissolution of States), the tendency is clearly towards succession to the obligation to repair.”
Thus, by continuing the internationally wrongful acts of massacres and unlawful confiscations, the Republic of Turkey, from the perspective of the existing international law, made itself responsible not only for its own internationally wrongful acts committed against the Armenians and other Christians minorities, but also for the same acts committed by its Ottoman predecessor.
