Azernews.Az

By Orkhan Hajiyev

Master of Public International Law
Queen Mary University of London, UK

It has been a long time since Armenian ideologists and their accomplices are eager to prove to world’s community that there had been committed a crime of genocide against “long-suffering” Armenians on the territory of Ottoman Empire. Before the collapse of the Soviet Union this propaganda was mainly directed against Turkey, however after its dissolution all the Turkish nations including Azerbaijanis began to be charged for genocide in circuitous ways. The aim of this article is not to investigate the developments of 100 years old. Nevertheless, the aim is to determine whether the statements of Armenians are legitimate according to international law. For this reason some details of those massacres should be revised as well as the case law of the relevant international courts tried the cases of genocide.

The historic premises of the events of 1915

At the beginning of the 20th century the internal situation of the Ottoman Empire was unstable. Except Turks there lived a lot of other peoples on its territory as Arabs, Greeks, Assyrians and Armenians. Being dissatisfied with the politics of the central government these peoples often revolted and a lot of rebellions were burned out all over the territory of the Empire. Later after the entry into the World War I, the Ottoman Empire was drawn to conduct a war in several battlefronts. One of such battlefronts was the East Front where the two empires – Russian and Ottoman – fought for the Caucasus. The biggest battle in the mentioned area was the Sarikamish Operation started by Turks in December 1914, where they were destructively defeated by the Russians in January 1915. After that defeat, Turks were thrown away and lost its claims for South Caucasus, Iran and access to the Persian Gulf. The significance of these regions for the German-Ottoman alliance conducting unequal war against the Entente does not need any further comment.

A big contribution to the victory of the Russian army was made by the actions of Turkish armies composed of ethnic Armenians and by Armenian volunteers - big part of which joined Russian army during the operation as well. The other part of them conducted partisan war against the Turkish soldiers coming back home after the battle in the East Anatolia. As a result of these actions there was formulated a solid persuasion about the Armenian betrayal in whole among the Turks. As soon as Enver Pasha[1] arrived to Istanbul, he declared to the publisher of “Tanin” newspaper and vice-president of the Turkish government that their army was defeated as a result of the Armenian treason and that it was time to depart them from the east regions.

The first stage of the deportations started in Zeytun and Dordyol at the beginning of April 1915. On April 24th[2] the elite of Armenians who were the ideological leaders of the Armenian betrayal was arrested and departed from Istanbul. The main phase of the deportations was begun after the Siege of Van, according to which all the Armenians had to be departed from the frontier regions. On May 26th 1915 Talat Pasha[3] presented “Deportation Act” which was approved by parliament on May 30th. The act was dedicated to the struggle against the revolts by the peoples of the Ottoman Empire during the War Principally the Armenians were departed to Mesopotamia, Middle East, North Africa which composed the provinces of the Ottoman Empire at that time. The basic aim of these regions to be chosen was to hold Armenians far from the battle zones. Undoubtedly, a lot of Armenians died during the deportations. The number of victims changes from 200 000 to 1 000 000 depending on various sources. However some armenian sources displays 2 000 000 armenians had been killed! (It is worth to speak about the exxageration of this number but it should be mentioned that according to the statistics before the War the whole Armenian population of the Ottoman Empire was no more than 1.5 million people). Nevertheless the same losses took place among the Turkish and Kurdish population of the empire. This fact was affirmed by Fridtjof Nansen – chief commisar of League of Nations on affairs regarding the repetrations of prisoners of war from Russia, legendary polar explorer - a man who can not be accused feeling simpathy to Turks. He stated in his book: “January 1916... being in panic and atrociously scared turks moved to East in cold winter, most of them died of incredible suffering and deprivation in impassable pathways of the mountains.”[4]

The Crime of Genocide

Genocide has been referred as the “crime of crimes” in Kambanda International Criminal Court for Ruanda (ICTR)[5]. When the conduct constituting the offence is attributable to State, genocide, like other international crimes, is not a crime of individual responsibility. Otherwise it also engages State responsibility. In the Bosnian Genocide case, Bosnia took proceedings in the International Court of Justice (ICJ) alleging breaches of the Genocide Convention by Serbia in attempting to destroy muslim population. The Court confirmed that the convention not only imposes on States a duty to prevent and punish genocide but also an obligation to refrain from genocide[6]. The standard definition of genocide is contained in article 2 of the Genocide Convention, which is adopted verbatim in the Statute of the ad hoc tribunals (ICTY and ICTR) and of the International Criminal Court (ICC):

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group

Historical development

The identification of genocide as an international crime came as response to Holocaust, but the term ‘genocide’ was not coined until 1944, by Raphael Lemkin, a polish lawyer.[7] The indictments at Nurenberg Tribunal stated that they had conducted ‘deliberate and systematic genocide of classes of people, particularly Jews, Poles and Gypsies’.[8] But genocide as such was not a crime within jurisdiction of Nurenberg Tribunal (NT). In Kambanda, the International Criminal Tribunal for Rwanda (ICTR) said that “the crimes prosecuted by NT were very much constitutive of genocide, but they could not be defined as such because the crime of genocide was not defined until later!”[9] This means that the government of Armenia, whether it desires or not, can not charge Turks in comitting the crime of genocide as such, because the crime of genocide had not been defined as an independent international crime at that time yet. Even the worldwide recognised extermenation of Jews by Nazi was legally referred as Holocaust, not the Jews genocide. All of the crimes prosecuted by the NT and its immediate successors were defined as having a connection with war. It was because of this restriction that it was necessary to recognize the crime of genocide as a separate international crime. This was done in General Assembly Resolution of 1946. Two years later, the Genocide Convention was concluded and came into force in 1951. In the same year, the International Court of Justice (ICJ) declared that the prohibitions contained in the convention constituted customary international law.[10] Although article 6 refers to the possibility of an international court being available to try cases of genocide, it was not until the establishment of the ad hoc tribunals. The first conviction for genocide was recorded in 1998 by the ICTR, of Jean-Paul Akayesu, 2 days after that, J. Kambanda, the former Prime Minister of Rwanda was sentenced to life imprisonment.

Relationship to Crimes Against Humanity

Genocide has obvious similarities to crimes against humanity. At Nurenberg defendants were charged with war crimes and crimes against humanity for what would now been prosecuted as genocide. The chief difference between them is the intent to destroy the whole or part of a group that is necessary element of genocide. And the interests protected by the law against genocide are narrower than for crimes against humanity. The law against genocide protects the rights of certain groups to survival, but the similar crimes against humanity – persecution ‘against any identifiable group including political, cultural. Unlike crimes against humanity, genocide does not explicitly include any objective requirement of scale. The threshold for a crime against humanity is its connection to a widespread or systematic attack directed against a civilian population, and for a war crime its commission during an armed conflict. In contrast, the gravity of genocide is primarily marked not by an objective circumstantial element but by the subjective mens rea, the intent to destroy a national, ethnic, racial or religious group.

The Protected Groups

Genocide does not mean the destruction of all groups of people but only national, racial, ethnical and religious and this list is exhaustive. There were several unsuccessful suggestions to include also social and political groups during the negotiations of the convention[11].Several attempts to extend this list were also unsuccessful. The highest-profile example is the ICTR, in Akayesu, by misreading of the travaux-prepatoires the Chamber determined that the drafters intended to protect any stable and permanent group.[12]But there is no evidence at all that that was adopted as an open-ended description of protected groups. However, all the evidence is that the enumerated list of groups contained in article 2 of the Genocide Convention was intended to be exhaustive. Darfur Commission, established by the request of the Security Council (SC) of United Nations (UN) for the investigation of armed conflict in Sudan 2003-2004, found that this interpretation of the Convention has become part of international customary law[13]. But the Commissions view that the list is not exhaustive is not supported by Tribunals (ICTY and ICTR) other than Akayesu, nor by state practice and no opinio juris. On contrast, in Krstic, the Chamber kept to the view that the four groups are the exclusive protected groups of the Genocide Convention[14]. A very sophisticated judge – Antonio Cassesse – asserted that the Convention confined itself to the physical destruction of relatively stable groups to which persons in most instances belong ‘involuntarily’ and often by birth[15]. The ICC in its early practice has adopted the same view[16]. Armenians, as the national minorities staying on the territory of the Ottoman Empire, without any doubt, constituted the ‘protected group’ by the Genocide Convention.

National, ethnical, racial and religious groups

It is unfortunate that there is no internationally recognized definition of any of the terms used in Convention. The ICTR, in Akayesu, tried to give each one a meaning, but having determined an ethnic group as a group whose members share common language or culture[17], the Chamber ran into difficulties whether the Tutsi were a protected group under the Genocide Convention.[18] Having defined the ethnic group in this way it was not thus that the Tutsi were distinguished from the Hutu. The better approach, followed by the Krstic Trial Chamber, is to recognize that the list is exhaustive but to accept that the four groups were not given distinct and different definitions in the Convention. It stated that the intent of the Convention was to describe a single phenomenon to what was recognized as ‘national minorities’. To attempt to differentiate each of the named group on the basis of the scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention.[19]

Identification of the Group and Its members

Determination of the groups and their members is not a simple matter; it is certainly more difficult than the drafters of the Convention thought. There are genuine difficulties in deciding if a person is a member of the group and the complex question of who ought to be able to make that determination arises. [20] A subjective approach has its attractions: the criterion for the identification of members of the group is that a perpetrator considers the victims to be members of a group he or she is targeting. The most significant factor in a particular case may be that the perpetrators have the specific intent to destroy a group identified by themselves. [21] It is by no means clear that groups intended to be protected by the Genocide Convention always have an objective existence in the manner the drafters thought. This problem was discussed by Darfur Commission in deciding whether that groups were protected. The Commission relied upon a partially subjective concept of groups. Victims and perpetrators had come to perceive themselves as either ‘African’ or ‘Arab’. A self-perception of two distinct groups had emerged.[22]

While the Tribunals, such as in Kayishema, have in some appeared to use an entirely subjective approach[23], the better view is that the group must have some forms of objective existence in the first place: otherwise the Convention could be used to protect entirely fictitious groups. Thus, in the ICTR Semanza case it was concluded that whether a group is a protected one should be ‘assessed’ on a case-by-case basis by reference to the objective particulars of a given social or historical context, and by the subjective perceptions of the perpetrators[24]. In the case of armenians this issue do not arise any difficulties as armenians constituted a national minority on the territory of Ottoman Empire either objectively or in subjective perception of the both sides.

Material Elements: the prohibited acts

Not every act commited with the intension to destroy in whole or in part a protected group will lead to a conviction for genocide. Only those which are mentioned in article 2 of the Genocide Convention:

Killing: there are certain interpretative problems which had to be resolved. The English term ‘killing’ is neutral as to whether the killing intentional or reckless, while the french version ‘meutre’ is more precise. In Kayishema the Appellate Chamber confirmed the Trial Chamber’s view that there is virtually no difference between the terms in the English and French versions of the Convention.[25]The act must be intentional but not necessarily planned beforehand.[26] Whether the intentional killings to destroy ‘protected group’ took place in 1915 events remains disputable issue for the historians.

Causing serious bodily or mental harm to members of the group: In spite of the popular understanding of genocide as causing death the draftersof the Genocide Convention were not so limited in their understanding of the crime. In the Eichman case the District Court of Jerusalim said that seriously bodily or mental harm could be caused: “by enslavement, starvation, and persecution of people and by their detention in ghettos and consentration camps in conditions which were desighned to cause their degradation, deprivation of their rights as human beings”[27]. In Akayesu the ICTR broke new ground in deciding that acts of sexual violence and rape can constitute genocide. The ICC Elements of Crimes follows this approach[28]. The politics of deportation of the Ottoman Empire did not provide the creation of concentration camps to keep there Armenians in conditions designed to cause death, as for example, camps constructed by Nazi. Turks provided the precise politics of forced migration to other territories. This statement can be confirmed by the fact that Armenians were deported to regions like Mesopotamia while the concentration camps could be created in deserts of Anatolia. Taking into account that Armenians mainly lived in the East of Anatolia, the last way would be more suitable for the country conducting war and intending to destroy a national minority.

Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part: The ICC Elements of Crime interpret the term ‘conditions of life’ as including but not necessary restricted to deliberate deprivation of resources indispensable for survival, such as food or medical services or systematic expulsion from homes[29]. The question of the forced migration, commonly known as ‘ethnic cleansing’ has been adressed under this paragraph of article 2. It was regarded in Bosnian Genocide case by ad hoc Judge Lauterpacht as constituting genocide[30]. This view was not shared by the majority. For example, in Eichmann it was concluded that ethnic cleansing does not necessarily constitute genocide. Before 1941 the goal of Nazi in their persecution of Jews was to make them leave Germany and only later these politics grew up to mass destruction. [31] In Brdanin the TC found a consistent, coherent and criminal strategy of cleansing the bosnians but there was no evidence that they had been committed with ‘the sole purpose of driving people away’[32]. The matter was usefully summed up by the ICJ in the Bosnian Genocide:

Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’ nor the operations carried out to implement such policy can as such be designated as genocide:the only intent which characterises genocide is ‘to destroy in whole or in part’ a particular group[33].

The case law of international tribunals explicitly demonstrates that forced migration – which also took place in 1915 events – without the special intent ‘to destroy a group in whole or in part as such’ does not constitute the crime of genocide. The intent of the Ottoman government to be forced migration and not the destruction of a group, is proved by Deportation Act 1915. Article 1 of that Act states: “during the armed conflict commanders of armies and divisions... are charged and ordered to punish immediately and severily all those who counteracts to governmental orders and measures undertaken for national security and maintainance of legality and public order.” According to article 2 of the act the military authorities were permitted “to resettle the populations of the villages and towns to other territories and transfer them, individually or collectively, in compliance with military time demands.”[34] During the armed conflict the politics of forced migration of national minorities were widely used also by other states. For instance, in Soviet Union, during the World War II (1939-1945) by leadership of J. Stalin and L. Beriya there were undertaken massed forced deportations of Kalmyks, Ingushes, Chechens, Karachais, Balkars, Crimean Tatars, Noghays, Meskheti-Turks, Ponty-Greeks, Bulgarians, Crimean Gipsies, Kurds – mainly charged in collaborationism among the population. In all during the war about 61 nations and groups of populations were deported[35]. Undoubtedly, part of the migrated population died during the deportations. And in case of counteractions, these nations would be sentenced to the most severe punishment according to the military time demands. However, Stalin and the government of the U.S.S.R were never accused in commitment of the crime of genocide regarding to those national minorities.

Imposing measures intended to prevent births within the group: This provision was inspired by the Nazis’ practice of forced sterilization before and during World War II. Examples of these measures given by the ICTR in Akayesu are sexual mutilation, sterilization, forced birth control and prohibition of marriages.[36]

Forcibly transfering children of the group to another group. This form has received little judicial consideration[37]. The Elements of Crime defined children as being those below 18 noting that the term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion such as that caused by fear of violence, duress, psychological oppression or abuse of power against such person or persons or another person.

Mental Elements

These mental elements of genocide comprise both the requisite intention to commit the underlying prohibited acts and the intent special to genocide. This special intent ‘to destroy in whole or in part a group as such’ distinguishes genocide from other crimes[38]. But the meaning to be attributed to this intent requirement is a matter of some difficulty. There are 4 aspects to be considered:

“To destroy”

As was concluded in Kambanda, the destruction specified here is physical or biological although the means of causing destruction of the group may be by various acts of causing the death to individuals[39]. Other forms, such as the social assimilation or attack on cultural characteristics do not constitute genocide if they are not related to physical or biological destruction. Some national jurisdictions have extended it[40] but the TC in Krstic stated that despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group[41]. The ICJ confirmed this statement in Bosnian Genocide. [42]

“In whole or in part”

This aspect of the intention has caused considerable controversy. This is because the ambit of the protections granted by the prohibition of genocide is quite heavily depended on how broadly or narrowly the relevant group is conceptualized. The first issue is geographical one: whether the intent is to destroy the group in the scope of determined geographical territory or in whole. For example, in Rwanda events the intent of the Hutu was to destroy the Tutsis in Rwanda, although the Tutsis compactly lived also in other states. It is clear that in this case the Rwanda Tutsis constituted the “part” of the Tutsis as a national group. Or whether the intent of the Turks was to ‘destroy’ Armenians on the territory of the Ottoman Empire, however the last dwelled in Iran, in South Caucasia and other territories of the Russian Empire. According to Bosnian Genocide, it is widely accepted that genocide may be found to have been committed where the intent is to destroy the group within a geographically limited area[43]. The further issue is the meaning of ‘part’ of a group. In Kayishema the ICTY established that it is not genocide if the intention is to destroy a part which is less than ‘substantial’[44] and this has been confirmed by the ICJ:

…the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole. [45]

Regarding of this issue the ICTY in Krstic also pointed out that in determining what a ‘substantial’ part was, the number targeted could also be relevant. “The numeric size of the targeted part of the group is the necessary and important starting point, though not in all cases the ending point of the inquiry. The number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group” [46]. In addition to the numeric size of the targeted portion, its prominence within the group can be a useful consideration. If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as ‘substantial’[47]. This aspect of the crime is very complicated and almost unsettled in Armenian case. The Turkish sources tell about 1.5 million of Armenians living in Turkey and 200.000 of them died, while the Armenian ones indicate distinct numbers. Therefore the application of the ‘substantial part’ test is almost impossible.

«As such»

The Genocide Convention demands an intent to destroy the group, or part of it as such in order to constitute the crime of genocide. During the negotitation of the Convention there were those who wanted to include motive as necessary element of genocide. Others did not. The compromise which allowed agreement to be reached was to exclude any explicit reference to motive, but to include the word ‘as such’.

«Intent»

Unlike the other international crimes like aggression, genocide is not a crime that may be committed only by those who lead and plan the campaign of destruction. As was stated in Kayishema – the rank and file may also be principal perpetrators of genocide, provided they have the requisite intent[48]. It was also mentioned in Akayesu that the special intent required for genocide necessitates each individual perpetrator, whether leader or foot soldier, having the intention to destroy the group or part of it when committing any of the prohibited acts[49]. In time of conflict, where the intention is to defeat the opposing side, it may be difficult to assess whether mass killings are with a genocidal intent or with intent of winning the war. Having considered Krstic case by ICTY and the report of the Darfur Commission, it would be possible to clarify how this issue is elucidated by the international authorities. In Krstic, where general Krstic ordered to destroy all the men of military age of Srebrenica (Bosnian Muslims), the defence argued that the purpose of the killings was not to destroy the group as such but to remove a military threat. However the Tribunal affirmed that because of these killings the genocide of the Bosnian population of Srebrenica was implemented. The decision was reasoned as following:

The Bosnian Serb forces knew by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica.... By killing all the military aged men, the Bosnian Serb
forces effectively destroyed the community of the Bosnian Muslims in Srebrenica and eliminated all likelihood that it could ever re-establish Itself on that territory. [50]

Regarding the general himself the Appellate Chamber concluded that his own particular intent was directed to forcible displacement. Some other members of the military forces main stuff, while carrying out that order, accomplished their genocidal intent. All the evidence could establish that Krstic was aware of the intent of other members of the main stuff to commit genocide, however he did nothing to prevent the massacres. The conclusion of the Chamber was that it was not enough to convict a man as a principal perpetrator of genocide. The decision was reasoned as – genocide is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of specific intent.[51]Therefore, General Krstic was not convicted for committing genocide. Consequently the government of Serbia was not responsible for genocide in Srebrenica. Talat Pasha and Enver Pasha who implemented the politics of the Ottoman Empire and issued a decree about the forcible displacement and “Deportation Act”, also did not possess the genocidal intent. Therefore they could not be convicted as principal perpetrators of genocide as well as General Krstic. As was stated in that case, the executing officers while carrying out the orders could accomplish their genocidal intent. However their authorities, according to the case law of the ICTY, while not possessing that kind of intent could not be convicted as principal perpetrators. Consequently, the indictments with regard to Ottoman government are baseless!

The same direction was supported by the Darfur Commission of UN. The commission concluded that the policy of attacking, killing and forcibly displacing members of some tribes in Darfur did not show the special intent of genocide of Sudan government. Here is a passage from the report:

… the Commission concludes that the Government of the Sudan has not pursued a policy of genocide. Arguably, two elements of genocide might be deduced from the gross violations of human rights perpetrated by Government forces and the militias under their control.

These two elements are, first, the actus reus consisting of killing, causing serious bodily or mental harm or deliberately inflicting conditions of life likely to bring about physical destruction, and second, on the basis of a subjective standard, the existence of a protected group being targeted by the perpetrators of criminal conduct. However, one crucial element appears to be missing, at least as far as the central Government authorities are concerned: genocidal intent. Generally speaking, the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes primarily for purposes of counter-insurgency warfare. [52]

The Commission established that the intent of Sudan government was not the destruction of a group as such, but the prevention of armed resistances and assaults against governmental forces. The government of Sudan was not accused for the commitment of the crime of genocide. This decision was concluded by special commission of the Security Council of UN whose decision is the most relevant precedent in deciding genocide cases. The policy of deportations of Ottoman government also followed the treasons of Armenians in Sarikamish Operation and their attacks of Turkish soldiers going back home from the battlefield. The main phase of deportations started after the rebellion in Van. The participant of the World War I, commander of Kornilov Regiment (1917) of Russian Empire – Fyodor Yeliseev later wrote in his memorials: “Armenians rose in rebellion in Van on April. Armenians defeated a small detachment of Turks and captured the authority in the city.” [53] It is an historical delusion to consider the rebellions of Armenians on the east parts of Ottoman Empire apart from the Russian progress on the same territory. The best confirmation of this fact is the synchronized revolt in Van and the advancements of Russian forces to east parts of Anatolia. Above-mentioned F. Yeliseev clarifies the main aspects of Russian-Armenian alliance of that period in his writings: “As soon as the commander of army receives news about rebellions in Van in the middle of April, he strengthens the 4th Caucasian-Armenian corps… The main contribution to the occupation of Van was made by Ararat crew of general Nikolayev…”[54]

The Ottoman Empire authority, conducting the war against Russian Empire, could not allow this kind of alliance to be strengthened on its territory. Armenians clearly supported Russians and assisted their advance to this direction. The precise evidence of the mentioned statement is Karen Mikaelyan - the chief editor of “Armenian Messenger” magazine, who was brave enough to declare that: “Armenians were the guides of Russian expansionism to south… Armenians could keep the loyalty to the Ottoman Empire as they were suggested by the Zionists, however they preferred to support Russian position.” [55] Even W. Churchill illuminated this aspect in a diplomatic context in the 18th chapter of ‘The World Crisis’ as following: Turks accused the Armenians living on the East parts of Turkey of acting as Russian spies and agents and that of attacking the Turkish lines of communication. Probably, these charges were fair. [56] All the above-mentioned evidences support the statement of the Armenian deportation to have been provoked by themselves. As in the situation in Darfur, the intent of the Turkish government in forcible displacements was to prevent the creation of Armenian-Russian alliance against them and assaults against Turkish forces, but not the genocidal one.

Intent; not knowledge

The interpretation of special intent has been critisized: simple foot soldier will follow orders without having an intent to destroy a group[57]. In these cases the courts may face the difficult choice between acquital for lack of evidence of special intent and accusion relying on ambiguous fact patterns. These difficulties have led commentators to propose alternative formulations of the specific intent. In particular, well-recognized lawyer Greenwalt suggested that in cases where a perpetrator is otherwise liable for a genocidal act, the requirement of genocidal intent should be satisfied if the perpetrator knew that the goal or manifest effect of the campaign was the destruction of the group in whole or in part. [58] This is ‘knowledge-based’ approach.

This approach, however, was not supported by the Tribunals. In Krstic it was held that individual participators must each have the necessary intent, [59] that the convention requires the ‘purpose-based’ approach. This insistence on the special intent for each individual perpetrator remains the standard required for the crime of genocide by the case law and may be seen as correctly reflecting the need to reserve genocide convictions for those who have the highest degree of criminal intent. Talat Pasha and Enver Pasha even being aware of actions of the army, due to the absence of specific intent can not be convicted for the commitment of the crime of genocide.

Conclusion

According to case law and requirements of customary international law, because of the absence of specific intent, one may conclude that the crime of genocide as such was not commited in Ottoman Empire in 1915 against “long-suffering” nation. The best legal description of those developments was given by Guenter Lewy, an American author and political scientist, professor at University of Massachusetts, which is delivered to Your kind attention as a conclusion:

The primary definition of the crime of genocide was given by UN Convention on the Prevention and Punishment of the crime of Genocide. Generally, it is authoritative and implies to the premeditated destruction of the group, in whole or in part, on religious, ethnical or racial grounds. If these provisions applied, I do not think what happened at that time constitutes genocide. I do not think there was an intent to destroy Armenians. Probably, the intent was to resettle them or neutralize as ‘Quinta Columna’. [60]

[1] Ismayil Enver-Pasha – Military Minister of Ottoman Empire in 1913-1918

[2] On this day Armenians commemorate the victims of the assumed Armenian genocide

[3] Mekhmet Talat Pasha – Minister of Internal Affairs of the Ottoman Empire 1913-1918

[4] Fridtjof Nansen, Armenia and Middle East, Moscow 1994

[5] Kambandа. ICTR, 4.9.1998, par. 16

[6] Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). ICJ, February 26.2007, par. 162-166

[7] Raphael Lemkin. Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress. - Washington, 1944)

[8] ‘The trial of German Major War Criminals’. - London, 1946, part1

[9] Kambanda. ICTR, 4.9.1998, par. 16

[10] Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide Advisory Opinion (1951). ICJ, Rep 15, page.23

[11] W. Schabas. Genocide in international law. – Cambridge, 2009, с. 153-171

[12] Akayesu. ICTR, 2.9.1998, par. 516

[13] Report of the International Commission of Inquiry on violations of international humanitarian law and human rights law in Darfur UN Doc S/2005/60, par. 501

[14] Krstic. ICTY. 19.4.2004, par. 6-8

[15] A Cassesse. International Criminal Law. – Cambridge, 2004

[16] Situation in Darfur (Al Bashir arrest warrant case). ICC, 4.3.2009, par. 134-137

[17] Akayesu. ICTR, 2.9.1998, par. 512-515

[18] Payam Akhavan. The Crime of Genocide in the ICTR Jurisprudence (2005), 3 JICJ, 989

[19] Krstic. ICTY, 2.8.2001, par. 555-556

[20] In the human rights context, see the decision of the Human Rights Committee in Lovelace v. Canada Human Rights Committee (22/47)

[21] Bagilishema. ICTR, 7.6.2001, par. 65

[22] Report. UN Doc. S/2005/60, par. 508

[23] Kayishema. ICTR, 21.5.1999, par. 98

[24] Semanza. ICTR, 15.5.2003, par. 317

[25] Kayishema. ICTR, 1.6.2001, par. 151

[26] Stakic. ICTY, 31.7.2003, par. 515

[27] A-G of Israel v. Eichmann (1968)

[28] Akayesu. ICTR, 2.9.1998, par. 731

[29] ICC Elements of Crime, Art 6 (c)

[30] Bosniya and Herzegovina v. Yugoslavia. ICJ, Rep 325 р. 431-432

[31] A-G of Israel v. Eichmann (1968), см. также W. Schabas. Genocide in international law, р. 233-234

[32] Brdanin. ICTY, 1.9.2004, par. 118

[33] Bosnian Genocide case. ICJ Rep. par. 190

[34]Further details of the act are available at www.genocide.ru, created for agitation of “Armenian genocide” http://www.genocide.ru/enc/deportation-law.htm

[35] Николай Бугай, Депортация Народов, Война и общество, 1941-1945 книга вторая. - М.: Наука, 2004.

[36] Akayesu. ICTR, 2.9.1998, par. 507

[37] Ibid. par. 509

[38] Kambanda. ICTR, 4.9.1998, par. 16

[39] ibid

[40] See the decision of the German Federal Constitutional Court 2 BvR 290/99, 12.12.2000, par. 3

[41] Krstic. ICTY, 2.8.2001, par. 580

[42] Bosnian Genocide case. ICJ, par. 344

[43] Ibid, par. 199

[44] Kayishema. ICTR, 21.5.1999, par. 96

[45] Bosnian Genocide case. ICJ, par. 198

[46] Krstic. ICTY, Tr. Ch 2.8.2001, par. 560

[47] Krstic. ICTY, AP. Ch, 19.4.2004, par. 12

[48] Kayishema. ICTR, 1.6.2001, par. 170

[49] Akayesu. ICTR, 2.9.1998, par. 498

[50] Krstic. ICTY, 2.8.200, par. 595-597

[51] Krstic. Ap. Ch, 19.4.2004 par.,133-134

[52] Report. UN Doc. S/2005/60, par. 518

[53] Ф.И. Елисеев, Казахи на Кавказском фронте, (Kazakhs in the Caucasian front) available at http://grwar.ru/library/Eliseeff-Kazaki/KK_03.html

[54] ibid

[55] Карэн Микаелян, Преодоление заблуждений. Карабахская проблема в аспекте российско-армянских отношений. (Overcomig of delusions. The Karabagh problem in the context of Russian-Armenian relations)

[56] W. Churchill, “The World Crisis”, Free Press, 2005

[57] Harmen van der Wilt. Complicity in Genocide and International v. Domestic Jurisdiction (2006), JICJ, 242

[58] Greenawalt. Rethinking Genocidal Intent: The case for a Knowledge-Based Interpretation (1999), 99 Columbia Law Review, р. 2288

[59] Krstic. ICTY, Ap. Ch, 19.4.2004, par. 549

[60] Guenter Lewy, The Armenian Massacres in Ottoman Turkey: A Disputed Genocide, Yuta press 2005