More than a century after the Armenian genocide, there is still no international legal recognition of the crime and its perpetrators have faced no legal repercussions. The genocide that was executed by the Ottoman Empire, which became modern-day Turkey, resulted in the massacre of more than 1.5 million Armenians and the displacement of hundreds of thousands more who fled persecution, conflict, and violence. Despite all perpetrators remaining unpunished and the continuous denial from Turkey, international legal and political avenues have the power to enforce the principle of state responsibility to provide justice and reparations for the Armenian people.
In order to understand the international legal repercussions of the Armenian case, one must contextualize the role of relevant international legal principles. Under international law, crimes against humanity and genocide are both jus cogens violations and give erga omnes rights to those seeking justice. With jus cogens, universal jurisdiction can be applied with no derogation, giving all states the right to bring the alleged perpetrating party to international court. This peremptory norm is accepted by the international community to ensure that no state is exempt from the consequences of crimes such as genocide. With erga omnes, such crimes constitute the highest degree of enforcement of customary international law. An erga omnes law can be applied to any individual and state without any distinction, emphasizing the obligation that individuals and states have to protect the international community from crimes such as genocide. Additionally, within the crime of genocide, constituent elements of actus reus – perpetrated acts, and mens rea – specific intent, must be evidently reflected.
Given the theoretical framework in which these laws can be applied, the next step is identifying which treaties and international avenues for prosecution can be used. The most important treaty to recognize in this process is the Convention on the Prevention and Punishment of the Crime of Genocide – a legally binding treaty signed by 150 states, including Turkey and the five permanent members of the United Nations Security Council (P5). The term ‘genocide’ was coined by Raphael Lemkin in the Convention, with Lemkin referencing the Armenian case in his coining of the term. While the Armenian genocide occurred prior to when the treaty was written, signed, and ratified by states, the preamble of the Genocide Convention states that “at all periods of history genocide has inflicted great losses on humanity.” With this statement, there is condemnation of past genocides and recognition of how such acts are subject to the provisions of the treaty. Additionally, the articulation of “confirm[ing] that genocide… is a crime under international law” in the first article of the Convention demonstrates how the prohibition of genocide was already an established principle and norm of international law even without conventional obligation. The first article of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity can also be applied, as it rejects statutory limitations for genocide regardless of when the crime occurred. Therefore, despite the fact that the genocide occurred prior to the existence of the Convention, the Armenian genocide can still be recognized as a crime under several conventions.
Understanding this, the specific articles Turkey violated by being the perpetrator of the Armenian genocide can be further analyzed. Article II of the Genocide Convention outlines the criteria of what constitutes genocide, describing how the crime has the “intent to destroy…an ethnic group” by either killing members of the group or causing serious bodily or mental harm to members of the group, amongst other elements. The mass number of Armenians who were brutally murdered and the many more who were seriously injured at the hands of the Ottoman Empire at the time provide the evidence needed to prove Turkey’s violation of the second article. Moreover, Articles III and IV of the Convention emphasize how the act of genocide and any state or individual complicit in the act shall be punished, providing the legal means necessary for Turkey to face consequences for such crimes. The purpose of these articles are not only to serve justice for victims of genocide, but also to set the precedent that genocide should never be committed, in order to deter any future acts of it.
Having established the international laws the Armenian genocide violates, the question of how such crimes could be prosecuted still remains. Referring back to the Genocide Convention, Articles VI and VII state that those guilty of Article III “shall be tried by a competent tribunal of the State … or by such international penal tribunal” at the hands of signatories of the Convention or through the use of “competent organs of the United Nations (UN) to take such action under the [UN] Charter.” Prime examples of where this occurred are within the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY), where both tribunals prosecuted individuals responsible for the Rwandan and Bosnian genocide respectively. The Genocide Convention has essentially created legal avenues for institutions, namely international criminal tribunals, to transpose the same provisions pertaining to the crime of genocide from Article II to Article VI of the Rome Statute of the International Criminal Court (ICC), the founding treaty that set up the jurisdiction and structure of the ICC. However, because all those responsible for perpetrating the Armenian genocide are reportedly deceased, the Rome Statute and international criminal tribunals are not effective legal avenues for holding Turkey accountable.
Despite this, the state of Turkey can be held accountable, as opposed to specific individuals, through the International Court of Justice (ICJ) – the principal judicial organ of the UN that settles legal disputes between states. Its statute provides the groundwork for the application of the Genocide Convention in Article 38 (1) (b), where the ICJ can adjudicate on issues relating to codified international law such as the Genocide Convention. States that are either a signatory of the Statute of the ICJ or the Genocide Convention can bring the Armenian case to the ICJ, leaving room for the majority of countries to prosecute Turkey for its actions. Due to the fact that the ICJ has jurisdiction ratione temporis, Turkey is bound to its jurisdiction and has an obligation to hear the case in court regardless of whether or not Turkey signed any convention pertaining to the Armenian genocide at the time of its legal violation. Furthermore, decisions and judgements made by the ICJ are subject to res judicata, demonstrating the competence of the court to adjudicate without appeal and uphold decisions as final.
The only question that remains is if Turkey as a state can be held accountable for the actions of the Ottoman Empire, to which the answer is yes. State continuity from the Ottoman Empire to Turkey is evident in the Treaty of Lausanne. This treaty legally defined the borders of Turkey and recognized its sovereignty, with Turkey and other states, including members of the P5, signing it. Thus, there is legal consensus among states in the international community that Turkey is the successor of the Ottoman Empire, and as a result, Turkey is responsible for the Armenian genocide.
Taking into consideration all the international legal avenues for Turkey to be prosecuted, it becomes apparent that Turkey is not only responsible for the Armenian genocide but also can and should be held accountable for it. Even though those responsible cannot be prosecuted by the ICC since they are deceased, the ICJ provides an effective legal avenue to hold the state of Turkey accountable. With Turkey legally responsible for the genocide of Armenians, it is up to the international community to decide whether or not it will prosecute Turkey through the ICJ and help to restore justice for those victimized by the genocide, those who became refugees to flee persecution, and for the pain all Armenians suffered at the hands of Turkey.