Armenian Genocide reparations

The issue of Armenian Genocide reparations derives from the Armenian Genocide of 1915 committed by the Ottoman Empire. Henry Theriault writing in the Armenian Weekly, states these might be of financial, estate or territorial nature, and could cover individual or collective claims as well as those by the Republic of Armenia.^[1] It is questioned whether the Republic of Turkey, successor state to the Ottoman Empire, will ever enter the debate.^[2]

While the Government of Turkey has previously acknowledged "a massacre, even a crime against humanity", it charged Armenian-Turkish journalist, Hrant Dink, with "insults to Turkishness" for writing about the incident. In 2003 it introduced a law requiring schools to deny the massacre.^[2] In contrast Former Secretary of the UN Human Rights Committee, Professor Alfred de Zayas, Geneva School of Diplomacy,^[3] stated:

Because of the continuing character of the crime of genocide in factual and legal terms, the remedy of restitution has not been foreclosed by the passage of time. Thus the survivors of the genocide against the Armenians, both individually and collectively, have standing to advance a claim for restitution. This has been also the case with the Jewish survivors of the Holocaust, who have successfully claimed restitution against many States where there property had been confiscated. Whenever possible restitutio in integrum (complete restitution, restoration to the previous condition ) should be granted, so as to re-establish the situation that existed before the violation occurred. But where restitutio in integrum is not possible, compensation may be substituted as a remedy.^[4]

Historical background

Main article: Armenian Genocide

The aftermath of the Armenian Genocide

The Ottoman representative, Damat Ferid Pasha, signs the Treaty of Sèvres.

Apart from the one to one and a half million deaths, Armenians lost all their wealth and property and received neither compensation nor reparations.^[5] Businesses and farms were lost, and all schools, churches, hospitals, orphanages, monasteries, and graveyards became Turkish state property.^[5] In January 1916, the Ottoman Minister of Commerce and Agriculture issued a decree ordering all financial institutions operating within the empire's borders to turn over Armenian assets to the government.^[6] It is recorded that as much as 6 million Turkish gold pounds were seized along with real property, cash, bank deposits, and jewelry.^[6] The assets were then funneled to European banks, including Deutsche and Dresdner banks.^[6]

After the end of World War I, Genocide survivors tried to return and reclaim their former homes and assets, but were driven out by the Turkish Nationalists.^[5] Although reparations have never been granted by Turkey, the increasing recognition of the Armenian Genocide by the international community and so its eventual recognition by Turkey can lay a solid basis for the start of the reparation process.^[5]

Sèvres Treaty

See also: Treaty of Sèvres and Wilsonian Armenia

The punishment of the crime of the Armenian massacres, as well as the obligation to make restitution to the survivors were envisaged by the victorious Allies of World War I, and were included in the Peace Treaty of Sèvres, signed by the Ottoman Empire alike. The treaty contained not only a commitment to try Turkish officials for war crimes against the Allied Nationals, but also for crimes committed against subjects of the Ottoman Empire of different ethnic origin, in particular the Armenians, concluded in the texts as Crimes Against Humanity.^[4] Furthermore, the so called "Just Ruling of Woodrow Wilson (the US President at that time)" by the Treaty of Sèvres recognized an Armenian state much larger than the current Republic of Armenia by determining its Western borders in the Armenian Highlands and Asia Minor. While it was never ratified, there can be found^{[citation needed]} individuals, historians, organisations or politicians that share the thoughts of Henry C. Theriault (Ph.D. in Philosophy from the University of Massachusetts) specializing in social and political philosophy; he thinks:

...some of its elements retain the force of law and the treaty itself is not superseded by the 1923 Treaty of Lausanne. In particular, the fixing of the proper borders of an Armenian state was undertaken pursuant to the treaty and determined by a binding arbitral award. Regardless of whether the treaty was ultimately ratified, the committee process determining the arbitral award was agreed to by the parties to the treaty and, according to international law, the resulting determination has legal force regardless of the ultimate fate of the treaty. This means that, under international law, the so-called “Wilsonian boundaries” are the proper boundaries of the Armenian state that should exist in Asia Minor today.^[1]

Reparation proposals

According to the current Foreign Minister of Armenia, Eduard Nalbandyan, Armenia has never issued a declaration regarding land claims since its independence. He also argues that there are legal ways for Armenians to reclaim their lost properties, with or without Turkish recognition of the Armenian Genocide.^[7] However, various reparations proposals do exist. The view of Rouben Paul Adalian, Director of the Armenian National Institute in Washington is that, although reparations have never been granted by Turkey, the increasing recognition of the Armenian Genocide by the international community and hence its eventual recognition by Turkey can lay a solid basis for the start of the reparation process.^[5]

Many Armenians demand a restoration of the Turkish-Armenian border as demarcated by former United States President Woodrow Wilson in the 1920 Treaty of Sèvres, and a hefty amount of cash reparations.^[8] Some demand a land corridor between Armenia and the Black Sea in order to ensure the long-term viability of the Armenian state, while others only want the symbolic inclusion of Mount Ararat in Armenia and a formal apology by Turkey.^[8] Ümit Kardaş, a retired Turkish military judge, proposes the unconditional opening of the Turkish-Armenian border, as well as an invitation by the Turkish state to all Armenians living in the diaspora to settle in their ancestral lands in Turkey.^[9]

According to a study made by the Armenian Genocide Reparations Study Group (AGRSG), reparations should be made according to the detailed reparations estimate made as part of the Paris Peace Conference of 1919, supplemented by additional calculations for elements not sufficiently covered by the conference’s estimation of the material financial losses suffered by Armenians.^[1] The report also discusses multiple options regarding land return, from a symbolic return of church and other cultural properties in Turkey to full return of lands as designated in the Treaty of Sèvres. The report includes the very innovative option of allowing Turkey to retain political sovereignty over the lands in question but demilitarizing them and allowing Armenians to join present inhabitants with full political protection and business and residency rights.^[1]

The issues of “holding responsible”

In the sense of responsibility for the Genocide the issue can be separated into 2 major concepts: personal and state.

The issue of personal responsibility and "punishment"

It is an accepted principal of law, that criminal cases may be brought against the living people only. In this scope these kind of criminal proceedings are currently impossible as the perpetrators are already dead. In this regard the possibility of involvement by International Criminal Court (ICC) seems impossible not only because of that, but also that by it’s regulations it has no retroactive .^[10]

This kind of proceeding already took place against the perpetrators, who were found guilty, in the Turkish Courts-Martial of 1919–1920 in War Crimes and Crime against humanity and the process was concluded in Malta exiles of more than 140 people in the aftermath of World War I. This was the first time the term “Crimes Against Humanity” was coined but the term “Genocide” was coined later, in 1948.

The issue of "punishment" of the responsible state

In the modern International Law, however, the idea of criminal liability of states is affirmed. This way the Article 19 of the initial draft articles on state responsibility adopted by the International Law Commission (ILC) genocide was listed among the international crimes. Such an assertion opens the way for an international “punishment” of the state to which genocidal acts are attributed. This could be the case with Turkey if it is held responsible for the Armenian Genocide .^[10] Despite this in the general frames of this draft the mechanisms, the level of responsibility and other factors are quite vague which explains the final deletion of the word “crime” from the draft of ILC and makes mention of an unclear “serious breach of an obligation arising under a pre-emptory norm of general international law” .^[10]

According to some there does not exist a proper mechanism to hold Turkey responsible for the damage caused to Armenians by the genocide. In this scope, according to Professor Richard Hovhannisian’s, this kind of process is possible by the consent of the parties and such an agreement or treaty between Armenia and Turkey does not exist. Neither does the exchange of optional clauses of compulsory jurisdiction in accordance with the International Court of Justice (ICJ). And so there is no institution or court, except for the European Court for Human Rights (ECHR), Turkey could be brought before without its own consent. The latter is an international but not an interstate court. It is established to decide the individual claims against the states on issues of European convention on human rights, which is not helpful in the issue of reparations .^[10]

Dealing with the reparations

Grounds in International Law

The United Nations Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and International Humanitarian Law provide in part:

Reparation may be claimed individually and where appropriate collectively, by the direct victims of violations of human rights and international humanitarian law, the immediate family, dependants or other persons or groups of persons closely connected with the direct victims.^[11]

While current members of Turkish society cannot be blamed morally for the destruction of Armenians, the present-day Turkish Republic, as the successor state to the Ottoman Empire and as beneficiary of the wealth and land expropriations brought forth through the genocide, is responsible for reparations.^[1] Professor de Zayas states the following:

The lands, buildings, bank accounts and other property of the Armenian communities in Turkey were systematically confiscated. Should there be no restitution for this act of mass theft, accompanying, as it did, the ultimate crime of genocide?

Pr. de Zayas states that the restitution of confiscated Armenian property remains a continuing State responsibility also because of Turkey's current human rights obligations under international treaty law, particularly the corpus of international human rights law.^[4]

Particularly important are Principles 9 and 12 that state that civil claims relating to reparations for gross violations of human rights and international humanitarian law shall not be subject to statutes of limitations (article 9), and that restitution shall be provided to re-establish the situation that existed prior to the violations of human rights or international humanitarian law. The restitution requires, inter alia - return to one's place of residence and restoration of property.^[11][12]

For reparations of gross violations of human rights, two other general principles are relevant: the principle of ex injuria non oritur jus (translation: from a wrong no right arises), meaning that no State should be allowed to profit from its own violations of law, and the principle of "unjust enrichment". It is a general principle of law that the criminal cannot keep the fruits of the crime.^[13][14]

Current legal mechanisms

Despite the recent large experience and advance in dealing with similar issues, there are ascertains that the existing legal background provides insufficient mechanisms for the resolution of the subject issue unless mutually agreed on one. There is little doubt that Turkey will join any discussion concerning its responsibility towards the victims .^[2] This can also be supplemented with facts that Armenia was inexistent as an independent state at the time of the Genocide and that the victims were mainly the subjects of the Ottoman Empire itself .^[10]

Armenian organizations demanding reparations

Armenian political parties

See also: Armenian Revolutionary Federation, Social Democrat Hunchakian Party, and Armenian Democratic Liberal Party

• The Armenian Revolutionary Federation is a political party established in 1890 in Tiflis, Georgia. The ARF possesses the largest number of members from the political parties present in the Armenian diaspora, and is also actively present in the political life of the Republic of Armenia by having representatives in the Parliament and by having participated in the ruling coalition.^[15] The party advocates the recognition of the Armenian Genocide, as well as reparations. A section of its program called "General Theory" has recently been adapted to current concepts of socialism, democracy, and rights of self-determination.^[16] Among its goals are the international condemnation of the Genocide committed by the Ottoman Empire against the Armenians, the return of occupied lands in accordance with the Sevres Treaty, and just reparations to the Armenian nation.^[17]

• The Social-Democrat Hunchakian Party, another political party with many adherents in the Armenian diaspora, also supports worldwide recognition of the Armenian Genocide and necessary indemnification, essentially based on territorial rights. It supports the right of the Armenian people to return to their historic homeland as well as their right to self-determination.^[18]

• The Armenian Democratic Liberal Party, a third traditional Armenian political party, supports worldwide recognition and also the reparation by Turkey for the goods and assets of Armenians that she spoiled.^[19]

Defunct paramilitary organizations

See also: Armenian Secret Army for the Liberation of Armenia, Justice Commandos Against Armenian Genocide, and Armenian Revolutionary Army

• The Armenian Secret Army for the Liberation of Armenia, abbreviated ASALA, was a Marxist-Leninist militant organization, that operated from 1975 to 1986.^[20][21] The stated intention of ASALA was "to compel the Turkish government to publicly acknowledge its responsibility for the deaths of 1.5 million Armenians in 1915, pay reparations, and cede territory for an Armenian homeland".^[22] The territory to be ceded would be the area promised to the Armenians at the never-ratified Treaty of Sèvres in 1920 by US President Woodrow Wilson, "Wilsonian Armenia".^[23]

• The Justice Commandos Against Armenian Genocide, abbreviated JCAG, was another paramilitary organization that operated in various Western nations from 1975 to 1983. It sought the recognition of the Armenian Genocide by the Republic of Turkey and the establishment of an independent Armenia. In order to achieve its aims, it conducted a campaign of assassinations targeting Turkish diplomats around the world.^[24] JCAG's activities were concentrated in European and North American countries targeting Turkish interests.^[25]

• The Armenian Revolutionary Army, abbreviated ARA, is another defunct Armenian guerrilla organization that had similar aims. It is claimed that the Armenian Revolutionary Army (ARA) that began operating in 1983, was simply JCAG renamed.^[26]

Recent developments

Lawsuits

Against financial institutions

California-based lawyers Brian S. Kabateck, Vartkes Yeghiayan, Mark J. Geragos, and William Shernoff filed a series of lawsuits against American and European financial institutions in order to recover Armenian assets and insurance compensations.

• In July 2004, after California Legislature passed the Armenian Genocide Insurance Act, descendants of Armenian Genocide victims settled a case for about 2400 life insurance policies from New York Life written on Armenians living in the Ottoman Empire.^[27] Some of the life insurance policies were written as early as 1875, but were not paid after the Genocide. Around 1918, the Turkish government attempted to recover for the people it had killed with the argument that there are no identifiable heirs to the policy holders, but did not succeed.^[27] The settlement provided 20 million dollars, of which 11 million was for heirs of the Genocide victims.^[27]

• In 2005, the French insurance company AXA was also accused of not paying compensations to the descendants of those who perished during the Armenian Genocide. After a class-action lawsuit, it agreed to pay 17 million dollars to descendants and Armenian philanthropic groups.^[28] In March 2010, the company provided life insurance premiums to 1,000 families of descendants of Armenians killed in 1915.^[29]

• In 2006, descendants of the Armenian Genocide filed a class action lawsuit against Deutsche Bank and Dresdner Bank which seeks the recovery of millions of dollars of money and property withheld by the two German banks after the Armenian Genocide.^[6] The lawsuit asserts that the banks profited from the 1915 atrocities in order to conceal and prevent the recovery of assets belonging to Armenian families.^[6] The banks' cooperation has been limited.^[6]

Against the Getty museum

On June 1, 2010, the Western Prelacy of the Armenian Apostolic Church of America has sued the J. Paul Getty Museum to demand the return of seven pages ripped from a sacred Armenian Bible dating back to 1256 as well as damages of 35 million dollars.^[30] According to the Western Prelacy, the seven pages were ripped from the Armenian Church's Zeyt'un Gospels during the genocide.^[31] The Zeyt'un Gospels were illustrated by Toros Roslin, and the rest of the sacred book is located at the Matenadaran in Yerevan, Armenia.^[32] According to the Getty, the museum legally acquired the pages, which is known as the Canon Tables, in 1994 from an anonymous private collector "after a thorough review of their provenance."^[32] Michael Bazyler, a Chapman University law professor and member of the plaintiff's legal team, believes this is the first case filed in the United States for the return of cultural or religious objects taken around the time of World War I.^[32]

Against the Turkish government and two banks

On July 29, 2010, Armenian-American lawyers filed a federal lawsuit against the Turkish government, the Central Bank of the Republic of Turkey and Ziraat Bankası, seeking compensation for the descendants of Armenians whose property was allegedly seized during the Armenian Genocide. The plaintiffs are Garbis Davouyan of Los Angeles and Hrayr Turabian of Queens. The suit - the first directed against the government of the Republic of Turkey - alleges breach of statutory trust, unjust enrichment, human rights violations and violations of international law.^[33] It seeks compensation for land, buildings and businesses allegedly seized from Armenians along with bank deposits and property, including priceless religious and other artifacts, some of which are now kept in museums in the Republic of Turkey. The lawsuit claims more than a million Armenians were killed in forced marches, concentration camps and massacres "perpetrated, assisted and condoned" by Turkish officials and armed forces. Lawyers for the plaintiffs think that records of the properties and profits still exist, and they are seeking an accounting that could reach billions of dollars.^[33]

Ankara Conference

Starting April 24, 2010, a two-day conference entitled "The Armenian Issue: What is to be done and how?", organized by the Ankara Freedom of Thought Initiative, took place in Ankara and was held under tight security measures.^[34][35] For the first time in Turkey, subjects such as confiscated Armenian property, reparations, and the challenges of confronting the past and moving forward were discussed.^[35] 200 people, mostly Genocide recognition supporters attended the conference.^[35] Some of those present were Turkish and Western intellectuals such as Sevan Nishanian of Agos Istanbul-based Armenian newspaper, Welsh writer-activist Eilan Williams, Worcester State University philosopher Henry Theriault, author Temel Demirer, etc.^[34] As the conference quickly turned into a debate on Armenian Genocide reparations, the latter three supported them, while Nishanian did not.^[34][35]

Bill in the Armenian parliament

On April 26, 2010, a draft resolution submitted to the Armenian National Assembly by the ARF criminalizes the denial of the Armenian Genocide and raises the reparations issue. Key parliamentary forces largely supported the bill. Larisa Alaversyan of the opposition Heritage Party says that the adoption of the bill would create further precedent for Armenia’s application to an international court on the issue. The head of Prosperous Armenia’s parliamentary faction, Aram Safaryan, as well as Hovhannes Margaryan of the Rule of Law faction similarly supported the initiative.^[36]

See also

• Armenian Genocide
• Armenian Genocide denial
• Armenian Genocide recognition
• Reparations Agreement between Israel and West Germany
• Reparations for slavery
• World War I reparations

Further reading

Notes

1. ^ ^{a b c d e} Theriault, Henry (May 6, 2010). "The Global Reparations Movement and Meaningful Resolution of the Armenian Genocide". Armenian Weekly. http://www.armenianweekly.com/2010/05/06/reparations-2/. Retrieved May 11, 2010. 
2. ^ ^{a b c} An Ugly Truth, U.S. News and World Report; Oct 29, 2007
3. ^ Geneva School of Diplomacy
4. ^ ^{a b c} De Zayas, Alfred (December 2007). "The Genocide against the Armenians 1915-1923 and the relevance of the 1948 Genocide Convention". Alfred de Zayas. http://alfreddezayas.com/Law_history/armlegopi.shtml. Retrieved May 11, 2010. 
5. ^ ^{a b c d e} Totten, Samuel; Parsons, William S. (2009). A Century of Genocide: Critical Essays and Eyewitness Accounts. New York: Routledge. p. 58. ISBN 0-203-89043-4. 
6. ^ ^{a b c d e f} "Armenian Genocide Descendants File Class Action against Deutsche Bank and Dresdner Bank Announces Kabateck Brown Kellner LLP". Business Wire. May 6, 2010. http://findarticles.com/p/articles/mi_m0EIN/is_2006_Jan_13/ai_n26726211/. Retrieved May 24, 2010. 
7. ^ (French)"Le ministre arménien Edouard Nalbandian explicite la position de l’Arménie.". 2010-06-15. http://eafjd.eu/spip.php?breve2519. Retrieved 2010-06-14. 
8. ^ ^{a b} "Frequently Asked Questions - Land Reparations for the Turkish Genocide of Armenians". http://www.sdpa.org/faq.html. Retrieved 2010-05-24. 
9. ^ Kardaş, Ümit. "Do We Have to Defend the Actions of CUP?". Keghart.com. http://www.keghart.com/Kardas_CUP. Retrieved 2010-05-27. 
10. ^ ^{a b c d e} Hovannisian, Richard. The Armenian Genocide and International Law. pp. 146–153. http://books.google.com/books?id=xtWMAOYXyKsC&lpg=PA149&pg=PA149#v=onepage&q&f=false. Retrieved June 19, 2010. 
11. ^ ^{a b} "QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO ANY FORM OF DETENTION OR IMPRISONMENT". http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/b3111e1e8f4a9278c125660f004e5fcf?Opendocument. 
12. ^ Commission on Human Rights, fifty-third session, Doc. E/CN.4/1997/104. Compare with the first report by Professor Theo van Boven C/CH.4/Sub.2/1993/8 of 2 July 1993, section IX, and the second report C/CN.4/Sub.2/1996/7 of 24 May 1996
13. ^ J.W. Wade, “Acquisition of Property by willfully killing another – A Statutory Solution “ (1936), 49 Harvard Law Review, pp. 715
14. ^ W.M. McGovern, “Homicide and Succession to Property” (1969) 68 Michigan Law Review, p. 65
15. ^ "U.S. Embassy releases study on Armenian-Americans". http://www.azg.am/?lang=EN&num=2006122302. Retrieved 2006-12-27. 
16. ^ "ARF history". Archived from the original on 2006-01-06. http://web.archive.org/web/20060106151318/http://www.arf.am/English/history/002history.htm. Retrieved 2006-01-29. 
17. ^ "Goals of the Armenian Revolutionary Federation". http://www.arfshant.org/index.aspx?PAGEACTION=Home. Retrieved 2006-12-29. 
18. ^ "Social Democrat Hunchakian Party". http://www.hunchak.org.au/aboutus/intro.html. Retrieved 2010-05-17. 
19. ^ "Armenian Democratic Liberal Party - Ramgavar Azadagan - The Genocide". http://adl.hayway.org/default_zone/gb/html/page-219.html. Retrieved 2010-05-18. 
20. ^ http://www.bartleby.com/67/2679.html
21. ^ Roy, Olivier. Turkey Today: A European Nation? p. 170.
22. ^ U.S. Department of State. "Appendix B". Patterns of Global Terrorism Report - 1996. 
23. ^ Pitman, Paul M. Turkey: A Country Study. Washington D.C.: The Federal Research Division of the Library of Congress, 283, 354-355 OCLC 17841957
24. ^ Starving Armenians: America and the Armenian Genocide, 1915-1930 and After - Page 166 by Merrill D. Peterson
25. ^ Geopolitical and Economic Changes in the Balkan Countries - Page 75 by Nicholas V. Gianaris
26. ^ TKB Group profile - JCAG
27. ^ ^{a b c} Brophy, Alfred L. (2006). Reparations: Pro & Con. New York: Oxford University Press. pp. 119–120. ISBN 0-19-530408-X. 
28. ^ "Axa Insurance Company will pay $17 Million to Heirs of Armenian Genocide Victims". Panarmenian.net. October 13, 2005. http://www.panarmenian.net/eng/world/news/14994/. Retrieved May 17, 2010. 
29. ^ "French Insurance Compensates Descendents of Armenian Genocide Victims". EurasiaNet.org. March 10, 2010. http://www.eurasianet.org/departments/news/articles/eav031110a.shtml?quicktabs_1=0&quicktabs_11=0. Retrieved May 17, 2010. 
30. ^ "Church Sues Getty Over Pages of 1256 Bible". Courthouse News Service. June 2, 2010. http://www.courthousenews.com/2010/06/02/27734.htm. Retrieved June 4, 2010. 
31. ^ "Armenian church sues Getty over ancient Bible pages". Los Angeles Times. June 3, 2010. http://latimesblogs.latimes.com/lanow/2010/06/armenian-church-sues-getty-over-ancient-bible-pages.html. Retrieved June 3, 2010. 
32. ^ ^{a b c} "Armenian church sues Getty museum over Bible pages". The Associated Press. June 3, 2010. http://www.google.com/hostednews/ap/article/ALeqM5gxKE45VG-tbIs83GWG5CxEDqdQ4AD9G427R00. Retrieved June 3, 2010. 
33. ^ ^{a b} "Armenian-Americans sue for century-old losses". Associated Press. July 29, 2010. http://www.google.com/hostednews/ap/article/ALeqM5iI6L_HizV9ETr5l-35FiwgzGHz5wD9H92HQ00. Retrieved July 29, 2010. 
34. ^ ^{a b c} Matossian, Lou Ann (May 1, 2010). "In Turkey 'People Are Rebelling' Against Armenia Genocide Denial". Eurasia Review. http://www.eurasiareview.com/2010/05/in-turkey-people-are-rebelling-against.html. Retrieved May 13, 2010. 
35. ^ ^{a b c d} Mouradian, Khatchig (April 28, 2010). "Ankara Conference Looks Beyond Genocide, Debates Reparations". Asbarez. http://asbarez.com/79973/ankara-conference-looks-beyond-genocide-debates-reparations/. Retrieved May 13, 2010. 
36. ^ "ARF Submits Bill to Parliament on Genocide Reparations". http://asbarez.com/79833/arf-submits-bill-to-parliament-on-genocide-reparations/. Retrieved 2010-05-17.