By Harut Sassounian,
Publisher, The California Courier
With the approaching Centennial of the Armenian Genocide, there has been growing public interest in taking legal action against Turkey in international courts.
One of the leading experts in this field was Dr. Yuri Barseghov, Professor of International Law, who wrote scores of pioneering books and articles on Armenian claims. Shortly before his death in 2008, Prof. Barseghov of Moscow outlined the basis for legal action against Turkey in an article titled: "Ways and Means of Assigning Responsibility for the Armenian Genocide."
Dr. Barseghov maintained that in 1920, "the Ottoman Empire admitted its responsibility for committing this crime" by signing the Treaty of Sevres, which unfortunately was not ratified due to the reluctance of the Allied Powers to pressure Turkey. Since then, despite the recognition of the Armenian Genocide by dozens of countries and international organizations, Prof. Barseghov believed that such acknowledgments "will not solve the problem of [Turkish] responsibility."
Prof. Barseghov contended that "since Turkey stubbornly continues to refuse recognizing that it committed this crime, it is still necessary to solve the question of responsibility for the Armenian Genocide through competent international bodies by making such decisions mandatory for both parties [Armenia and Turkey]."
Dr. Barseghov did not believe that the United Nations is a practical vehicle for the resolution of the Armenian Genocide issue, since it is a highly politicized body. "Decisions of the General Assembly are not mandatory," while the major powers, such as the United States and Great Britain, enjoy the privilege of veto power in the Security Council blocking any action against Turkey.
The problem of initiating litigation under the statute of the International Court of Justice (ICJ) is that both Armenia and Turkey have to agree in advance to abide by the decisions of the Court. Neither country has so far "recognized the obligatory jurisdiction of the International Court of Justice." Since Turkey most probably would not agree to submit itself to such jurisdiction, Dr. Barseghov suggested that the Republic of Armenia as a sovereign state take advantage of "the unique opportunity" of filing a unilateral case against Turkey on its responsibility for the Armenian Genocide, "under Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide."
Dr. Barseghov expressed regret that no response was received from the Armenian government after the Armenian Institute of International Law and Political Science of the Union of Armenians of Russia -- which he directed -- several years ago submitted a study on this subject to Pres. Robert Kocharian and Foreign Minister Vartan Oskanian.
Dr. Barseghov explained that "in order to start a case by this judicial procedure [Article IX], the Government of Armenia has to formulate its position on the questions of interpretation, application or implementation of the Convention on this basis on the question of responsibility of the Turkish state for the committed crime."
Prof. Barseghov warned Armenian officials that "there exists a provision in International Law which is confirmed by the International Court of Justice in other cases: if a state has the opportunity to submit a dispute but does not take such action, it would mean that the state accepts the existing situation.”
Dr. Barseghov allayed possible Armenian concerns that the ICJ may object to filing such a case due to questions regarding the retroactivity of the Genocide Convention. He expressed his firm belief that the Convention applies to the Armenian Genocide even though it preceded the Convention. He noted that the ICJ in its Advisory Opinion of 1951 stated: "the principles inherited by the Convention on Genocide, unlike the treaty obligations established in it, were already part of common international law by the time these awful crimes were committed."
Prof. Barseghov pointed out that arguments supporting the Convention’s retroactivity were put forward by the ICJ which has “twice given competent, exhaustive explanations on the fundamental basic questions of the applicability of the Convention including also its retroactivity." Based on these rulings, Prof. Barseghov concluded: "the Convention applies also to crimes committed in the past whose consequences have not been eliminated."
As announced during a recent conference in Yerevan, the Armenian government has formed a task force to prepare the legal file for a case to be brought against Turkey in international courts. The expert advice of Prof. Barseghov and other specialists should ensure that the lawsuit is properly prepared and presented to obtain long overdue justice for Armenian Genocide victims.