Abstract
The essay argues that the legal qualification of the widespread and systematic inhumane conduct that characterized the Armenian genocide as “war crimes” may constitute an appropriate legal basis for reparations in addition to the one provided by the law of State responsibility, at least to strengthen claims based on either domestic or international law that may not derogate from the general principle of law of non-retroactivity. Reparations—including restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition—may be characterized as essentially twofold, when referred to the status of the victims’ descendants: those aimed at partially restoring the harm and losses of victims through material and immaterial means of reparation provided to their descendants and those aimed at preventing that atrocities are repeated in the future, also via the proper memorialization. They should be carefully tailored to address multi-generational harm. In this connection, ratification of the Rome Statute of the International Criminal Court by both Armenia and Turkey would be a meaningful and effective step to guarantee non-repetition, “never again”.
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Notes
- 1.
Many profiles on the Turkish State’s responsibility to repair Armenian victims, either directly or through the facilitation of the State of Armenia, are covered by the voluminous on-line report entitled “Resolution with Justice – Reparations for victims of the Armenian Genocide. The Report of the Armenian Genocide Reparations Study Group” (March 2016), available at www.armeniangenocidereparations.info. None of the observations contained in this brief article shall be interpreted as a limitation to the findings of this Report in the area of States’ responsibility stemming from breaches of international law caused by acts of State.
- 2.
- 3.
According the definition of victims unanimously adopted by the UN General Assembly in its pivotal Declaration of principles on victims’ rights of 1985: “A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim.” Cf. UN doc. A/RES/40/34 of 29 November 1985, Declaration of Basic Principles for Justice for Victims of Crimes and Abuse of Power, Annex, Section A.2.
- 4.
Ibidem. Reference is also made to the preparatory works of the Rome Statute of the ICC. When States participating in the Rome Diplomatic Conference Working Group in Procedural Matters adopted Article 75 on reparations to victims, they inserted a footnote (by general agreement) in the Working Group’s report to orient the interpretation of the statutory language on reparations for victims and “in respect of victims” (Cf. Article 75, Rome Statute). Due its importance, the footnote is hereby reproduced: “Such a provision refers to the possibility for appropriate reparations to be granted not only to victims but also to others such as the victims’ families and successors. For the purposes of interpretation of the terms ‘victims’ and ‘reparations’, definitions are contained in the text of article 44, paragraph 4 of the Statute [corresponding to article 43.6 of the Rome Statute], article 68, paragraph 1, and its accompanying footnote, the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (General Assembly resolution 40/34 of 29 November 1985, annex) and the examples in paragraphs 12 to 15 of the revised draft basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law (E/CN.4/Sub.2/1996/17).” (Emphasis added by the author.)
- 5.
As one of the most authoritative scholars in this field has written, “[a]dministrative reparations programs generally provide either a lump sum of money, services, and/or a pension for survivors or their family members. They may be the product of executive decrees or legislation. They generally do not try to put victims where they would have been absent the violation [of human rights or international humanitarian law], but rather to serve as modest acknowledgement of wrongdoing.” Cf. Roht Arriaza (2010), p. 663.
- 6.
Case concerning the Factory at Chorzów (Claim for Indemnity) (Germany v. Poland), 13 September 1928, Permanent Court of International Justice, Merits, Collection of Judgments, Series A, No. 17, p. 29: “It is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation.” The Chorzow Factory case has been cited consistently in the jurisprudence of international tribunals. For example, in its most famous and cited Judgement on the right to justice for victims gross human rights’ abuses, the Inter-American Court of Human Rights affirmed that “[r]eparation of harm brought about by the violation of an international obligation consists in full restitution (restitutio in integrum), which includes the restoration of the prior situation, the reparation of the consequences of the violation, and indemnification for patrimonial and non-patrimonial damages, including emotional harm”: Velásquez Rodríguez Case [Compensatory Damages], 21 July 1989, Inter-American Court of Human Rights, Series C, No. 7 [1990], Paragraphs 6, p. 25–26.
- 7.
Case concerning the Factory at Chorzów (Claim for Indemnity) (Germany v. Poland), 13 September 1928, Permanent Court of International Justice, Merits, Collection of Judgments, Series A, No. 17, p. 47.
- 8.
While individual victims are rights’ bearers vis-à-vis individual perpetrators in specific treaty-based systems (e.g. the Rome Statute of the International Criminal Court), this is not yet the case in general international law. Several universal standards on victims’ rights are contained in non-legally-binding instruments, such as UN General Assembly resolutions. Conversely, under International Human Rights Law and International Humanitarian Law, there is no doubt that individual victims are rights’ holders vis-à-vis the State that is most connected with the phenomenon of victimization, primarily, the territorial State and/or the State on behalf of which the authors of the violations were acting.
Also the duty to prosecute alleged perpetrators of international crimes, which constitutes an essential element of the right to justice for victims of crimes that may not be severed from the right to know the truth and to reparations, must be exercised by relevant States, in accordance with the jurisdictional criteria established by National Law or by applicable treaties. In the aftermath of World War I, this duty had been established only for war crimes under the relevant peace treaties combined with the Hague Convention of 1907, which reflected customary international law.
- 9.
An overview of the existing International Instruments can be found in Brikci and Laucci (2016).
- 10.
For a detailed definition of these forms of reparation, reference is made to the last UN instrument on this subject-matter and the first decision of the International Criminal Court establishing principles relating to reparations, namely: M.C. Bassiouni, The right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms – Final report of the Special Rapporteur, UN Doc. E/CN.4/2000/62 (this report reflects also the content of report by previous rapporteur T. van Boven) and Prosecutor v. Thomas Lubanga Dyilo, No. ICC-01/04-01/06-2904, Trial Chamber I, Decision Establishing the Principles and Procedure to be applied in Reparations, 7 August 2012.
- 11.
Satisfaction as type of reparation for the benefit of victims of crimes under International Law does not correspond to the notion of satisfaction within the framework of the law on State responsibility as established in its codification by the International Law Commission in the Draft Articles on State Responsibility, UN Doc. A/56/10 (2001). The UN General Assembly, in its resolution 56/83 of 2001, commended the draft to the attention of governments “without prejudice to the question of their future adoption or other appropriate action”.
- 12.
- 13.
The Report of the Armenian Genocide Reparations Study Group” (March 2016), available at www.armeniangenocidereparations.info.
- 14.
A copy of the draft ICC-clause proposed for inclusion in the amendments’ package by a Commission of Experts convened by the Armenian Ministry of Justice is on file with the author.
- 15.
Relevant information may be found on the website of the European Commission for Democracy through Law – the Venice Commission – of the Council of Europe, including all the commentaries made by the Venice Commission to the 2015 drafted and adopted constitutional reforms: See www.venice.coe.int/WebForms/members/countries.aspx?id=42. Relevant information on the Armenian ICC process is available on the website of Parliamentarians for Global Action: See www.pgaction.org/campaigns/icc/cis/armenia.html.
- 16.
Council Decision 2011/168/CFSP of 21 March 2011 on the International Criminal Court and repealing Common Position 2003/444/CFSP, OJ L 76/56 of 22 March 2011.
- 17.
Article 38 (“Principles relating to offences and penalties”), Constitution of Turkey, as amended on May 7, 2004 by Act No. 5170 of the Grand Assembly of Turkey, available at https://global.tbmm.gov.tr/docs/constitution_en.pdf.
- 18.
International terrorism is a transnational crime, not a crime under International Law. As such, all the general principles of international criminal law codified in Part III of the Rome Statute are not applicable to terrorism, which was not incorporated in the Rome Statute’s subject-matter jurisdiction. Needless to say, should individuals belonging to a terrorist group commit genocide, crimes against humanity or war crimes, the ICC may exercise the relevant jurisdiction.
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Donat Cattin, D. (2018). What Reparations for the Descendants of the Victims of “the Armenian Genocide”?. In: Lattanzi, F., Pistoia, E. (eds) The Armenian Massacres of 1915–1916 a Hundred Years Later. Studies in the History of Law and Justice, vol 15. Springer, Cham. https://doi.org/10.1007/978-3-319-78169-3_8
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