William Schabas: "There is no doubt that the term ‘genocide’ may be applied to events that occurred long before the word was actually invented"

Nvard Chalikyan

On the usage of the legal term ‘genocide’ and on other legal issues related to the Armenian Genocide, Panorama.am has asked the opinion of William Schabas, renowned expert on international law and the law of genocide. Schabas is a professor of international law at Middlesex University in London and the author of Genocide in International Law.  
 - Professor Schabas, is the argument used by some governments to avoid coining the Armenian case as genocide, namely, that ‘the word genocide cannot be applied to the Armenian case because in 1915 the term did not exist,’ a valid one? 
- The 1948 Convention ‘[r]ecogni[ses] that at all periods of history genocide has inflicted great losses on humanity’. Two years earlier, the United Nations General Assembly adopted a resolution stating that ‘[m]any instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part’. Thus, there is no doubt that the term ‘genocide’ may be applied to events that occurred long before the word was actually invented, contrary to what some governments have contended as a justification for refusing to speak of the Armenian genocide.

- Can the Genocide Convention apply retrospectively to the Armenian case?
- The application to the Genocide Convention to events prior to its adoption and entry into force is a different question. There is a presumption in international law that treaties only apply prospectively, unless the contrary is indicated in the Convention, either explicitly or by implication. The matter was clarified on 3 February 2015 in the judgment of the International Court of Justice in the case of Croatia v. Serbia. Paragraph 100 of that judgment states: ‘The Court thus concludes that the substantive provisions of the Convention do not impose upon a State obligations in relation to acts said to have occurred before that State became bound by the Convention.’ Thus, the answer to the question is ‘no’.

- In that case, how was the crime of Genocide punishable prior to the Genocide Convention, i.e. in 1915?
- Genocide is a crime under customary law and was at the time when it was committed against the Armenians in 1915. 

- How much recognition would be enough for Turkey to be obliged to pay reparations for the Genocide? When it comes to international recognition, is there a difference between recognition by parliaments and by governments of leading countries?
- Because the Convention obligations cannot be applied to the 1915 genocide, in light of the ruling of the International Court of Justice, this may be an entirely theoretical question. Certainly recognition of the Armenian genocide by various governments, parliaments, etc., cannot change the situation concerning the claim that there exists an obligation under law to provide reparations. It may be argued that despite the inapplicability of the Convention, there is still an obligation under customary law to make reparation for the 1915 genocide. However, there does not appear to be a court or jurisdiction binding upon Turkey where such a claim could be made. 

- What future steps would you advise the Armenian government to take to push the issue forward? After all, should the case be taken to ICJ or any other international body or not?
- For the reasons explained above, I do not think there are presently any international tribunals for similar bodies where there is a realistic prospect of success with a claim. Germany’s payment of reparations to Jews following the genocide of the Second World War is a positive example. Germany did not make payment because it was compelled to do so as a result of legal obligation but because it considered this to be the right thing to do. That will also be the way forward with Turkey. Obviously the growing global consensus and recognition of the Armenian genocide can help convince Turkey to change its position.

Panorama.am, May 7, 2015

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