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Gunduz Aktan

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Past member of Turkish Armenian Reconciliation Commission.

Gündüz wrote following article for Turkish Daily News:

Gündüz Aktan: Retroactive applicability (2)

Tuesday, May 10, 2005

While maintaining, from a legal point of view, that the 1948 Genocide Convention would not apply to the Armenian incidents that took place 90 years ago, would it not be a contradiction to argue that the convention should be invoked to deal with incidents that took place a lot earlier than that?

Gündüz AKTAN In last Saturday's article I pointed out that the Former Yugoslavia International Criminal Tribunal's genocide decision (on April 19, 2004) regarding the Bosnia-Herzegovina incidents sets a precedent for the massacres Turks were subjected to in the Balkans and the Caucasus during the period from 1821-1922. While maintaining, from a legal point of view, that the 1948 Genocide Convention would not apply to the Armenian incidents that took place 90 years ago, would it not be a contradiction to argue that the convention should be invoked to deal with incidents that took place a lot earlier than that?

The preamble to the convention recognizes that 'at all periods of history genocide has inflicted great losses on humanity.' On the basis of that assertion many jurists argue that the crime of genocide had been committed on many occasions prior to the signing of the convention, that the convention did not create a new crime to be called genocide and that it merely confirmed an already existing crime by identifying it by a specific name. On these grounds these experts claim that the convention can be applied retroactively.

Indeed, in the face of the gravity of the crime committed by the Nazis, the Allies created an unprecedented international court (the Nuremberg Court) to have the defendants tried. That was a retroactive action. Although the court condemned 'for crimes against humanity' the defendants who had destroyed the Jews, the term 'Jewish genocide' was later adopted. That term was inspired by the definition of the crime of genocide provided by the convention. Germany did not object to it. That, too, was a retroactive action.

The Genocide Convention does not contain a clear provision on retroactivity. To eliminate that loophole the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity was adopted in 1968. Article 1 of the convention says that 'irrespective of the date of their commission' no statutory limitation shall apply to 'the crimes of genocide as defined in the 1948 Convention.'

Turkey is not a party to that convention; however, if this issue will have to be resolved through arbitration or adjudication we can, by making a unilateral declaration, accept application of the Genocide Convention to the Armenian incidents. Besides, if Armenia or some other country invited Turkey to the path of arbitration or adjudication, there would be no way we could refute the genocide allegation by stating that we are not a party to the convention. That would be politically wrong since it would seem that we consider ourselves to be guilty of the crime of genocide and that we do not want that to be known by others.

In other words, we have to defend the applicability of the Genocide Convention to the Armenian incidents -- as well as to the acts of ethnic cleansing and massacres perpetrated against the Turks in the Balkans and the Caucasus since 1821, or even earlier than that.

Article 3 of the Genocide Convention explains how the crime of genocide will be punished. At the time when genocide was being committed in Bosnia-Herzegovina, the Bosniacs were deprived of the means to defend themselves because the U.N. Security Council maintained an arms embargo on Yugoslavia (Resolution No. 713). Meanwhile, a U.N. peace force (in Bosnia, UNPROFOR) failed to prevent the genocide. Would Article 3-e, which refers to ´complicity in genocide,¡ apply to these failures as well? I am aware that this is a hugely complex problem.

Similarly, regarding massacres that Turks/Muslims in the Balkans, the Caucasus and Crimea were subjected to, the way that tsarist Russia actually staged ethnic cleansing and massacres itself (Article 3-1) and incited the Christian communities in the region to stage massacres (Article 3-b) and failed to prevent the massacres (Article 3-e) creates direct responsibility. The Duma that called the Armenian incidents 'genocide' ought to take into consideration Russian responsibilities, not only in the Soviet era but in the pre-Soviet era as well.

The same goes for the other big powers that had helped or simply omitted their responsibilities in the massacres perpetrated against the Turks/Muslims in the Balkans.

In the initial stage of these incidents the Christian communities in the Balkans might not yet have gained statehood. However, as seen in the case of the Bosnian Serbs committing the crime of genocide in Bosnia-Herzegovina, that cannot save them from the genocide accusation. Meanwhile, the crimes committed in the course of the Ottomans' repressing the rebellions mainly fall into the category (as we have seen in the Bosnia-Herzegovina case) of war crimes and, exceptionally, crimes against humanity. Although no statutory limitations shall apply to these two kinds of crimes either, these crimes are, in nature, different from genocide.

If the question is to 'confront history,' then all the parties concerned should take part in that process in line with the discipline emanating from a legal approach. What could be more natural than that?

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