Philippe Raffi Kalfayan
Observers were surprised when President Recep Tayyip Erdoğan questioned the fair application of the Lausanne Treaty recently. In a visit to Athens in December, he asked for its revision, claiming that “the Muslim minorities on the Greek border of Western Thrace were not able to choose their own chief mufti, while the Christian communities in Turkey enjoyed greater freedom when choosing their Patriarch.” Previously, he had declared that Lausanne was not such a great victory, because Turkey had to give away some [now Greek] islands. Meanwhile, he praised the Lausanne Treaty as the result of the first victory for the independence of Turkey.
The reaction of the CHP [Republican Kemalist Party] was prompt, condemning those comments, recalling that the Lausanne Treaty is the title deed of the Republic of Turkey.
We should take a closer look at that treaty, especially the conditions in which the treaty was concluded, its consequences for Armenians inside or outside the country, and how it has been applied so far by Turkey.
A Diplomatic and Moral Defeat of Western Allies; A Legal Nightmare for Armenians
In the Treaty of Sèvres, Turkey recognized an independent Armenia. It admitted to the massacres and agreed to deliver those responsible for the massacres committed on Turkish soil to the Allied Powers with the latter having the authority to establish tribunals and conduct criminal trials. Further, Turkey agreed to a new system of Capitulations, which protected the Allied Powers and their nationals from Turkish courts. The Treaty of Sèvres also established duties on Turkey to protect minorities. The Allied Powers signing the Treaty of Sèvres were the British Empire, France, Italy and Japan. Armenia was among the Principal Allied Powers and could present its memorandums and claims.
Lausanne: ‘Protection of Minorities’ or à la carte Violation of Minorities’ Rights
Unlike the Treaty of Sèvres, no reference was made in the Treaty of Lausanne to the Armenians, to the massacres and deportations or to the means by which perpetrators of those crimes would be held accountable. The Treaty of Lausanne imposed duties on Turkey regarding its minorities, defined in an ad hoc section of the Treaty as non-Muslims. Article 37 indicates that “Turkey undertakes that the stipulations contained in articles 38 to 44 shall be recognized as fundamental laws and that no law, regulation nor official action shall conflict or interfere with them or prevail over them.”
Since the treaty is international, there is no incompatibility with the 2004 Constitution, where it stated that “international treaties on fundamental rights have precedence over national laws treating the same subject.” After the coup in 1982, the constitution imposed by the military regime was in clear violation of the treaty, because it proscribed the use of languages other than Turkish.
The first violations of the treaty occurred as soon as 1926 with regard to positive rights, such as religious marriage ceremonies . In order to protect itself, the Turkish state asked that non-Moslem minorities give up their rights and agree to civil marriages before the church or synagogue ceremonies. The Armenians waived their rights under article 42 by a letter on January 3, 1926 (a decision taken by an Extraordinary General Assembly composed of the Patriarchate locum tenens, the religious and secular members of the Council, and the “representatives of the Nation”), where “their commitment to the Republican Government and the hope to earn back the confidence they were having before” were the grounds for their decision. The Jewish community leadership did the same. As for the Greeks, Greece lodged a complaint in September 1926 with the League of Nations claiming that the provisions of the Treaty were not being observed.
Under article 40 of the Treaty, the Turkish nationals belonging to non-Muslim minorities “shall have an equal right to establish, manage and control at their own expense, any charitable, religious and social institutions, any schools and other establishments for instruction and education (…).” The Turkish government never stopped interfering in the affairs of the Patriarchate: this is true those days (Istanbul Governor’s Office cancelled the election of Karekin Bekjian, who was unanimously elected last year). Back in 1932, the Turkish Government even prevented the Istanbul Patriarchate delegate from taking part to the election of Catholicos in Echmiadzin.
The current violation of Armenian minority rights to elect their patriarch sheds light on Turkish President Erdogan’s remarks about the non-respect of Moslem minorities’ rights in Greece. Erdogan picks on a non-existent violation in Greece in order to retaliate against the Treaty in Turkey. Indeed, article 45 of the Treaty provides reciprocity as for the protection of minorities: “the rights conferred…on the non-Moslem minorities in Turkey will be similarly conferred by Greece on the Moslem minority in their territory.”
The Instrument for Final Plundering of Armenian Properties
The surrender of the Allied Powers in Lausanne was total and had an even worse outcome on Armenians’ rights.
Despite the claims submitted to the League in the 1920s and 1930s demanding restitution for properties and citizenships – the most vocal and organized claims were filed by Levon Pachalian (Paris) and Ohannes Essayan (Athens) — neither succeeded. The official line was that all Armenians who had left the country before or during the war were considered “fugitives” and “guilty” and thus could not be protected by the Treaty.
The Law on “Abandoned Properties” (April 20, 1922) deprived all those “fugitives” from their properties. In addition, Turkey allegedly declared during the Lausanne conference (on July 17, 1923) its privilege to consider the right to return in Turkey to those nationals, who have left the country before [the War] and who will not present inconveniences; all others being deprived of their nationality. On June 8, 1929, Turkey completed its legislative arsenal by withdrawing the competence of Turkish civil law tribunals for admitting and reviewing cases related to “abandoned properties.”
The legal opinion drafted in 1929 by four internationally renowned consultants did not change that situation. Some individuals, such as Mrs. Nektar Duz, repeatedly filed a very well argued claim on her father’s properties. It unsuccessfully continued until 1938, though she was not considered a “fugitive.”
Thanks to this extremely despicable trick, Armenian survivors of the Genocide were turned into fugitives, since they allegedly escaped the country at a time they should have been at the side of Turkish people, fighting for its existence.
Political and Legal Perspectives of Challenging the Lausanne Treaty
An international treaty is a primary source of international law and challenging it would be rather difficult, although this treaty is built on a complete abstraction of International Wrongful Acts (massive and systematic massacres, enforced deportations and disappearances, stolen properties, enforced Turkification and conversion to Islam) in the meaning of the Law on State responsibility. By surrendering to Turkey’s blackmail in 1923, the Allied Powers are to be held accountable for the prejudice and harms caused to the Armenian Nation by the content of that Treaty since they betrayed their commitments of Sèvres.
The acts perpetrated in 1915-1923 were undeniably prohibited by the Treaty of Berlin (1878) and the Laws and Customs of War of Hague Convention (1899) and thus were wrongful acts. Thus it follows that the laws depriving the victims or their heirs from their citizenship and properties consequent to the enforced deportation are unlawful.
A second avenue is legally challenging the treaty’s application toward Armenians. Turkey consented that “any difference of opinion as to questions of law or of fact arising out of these Articles” between Turkey, another party to the Treaty of Lausanne, and any other power that is a member of the Council “shall be held to be a dispute of an international character under Article 14.” Turkey then consented to have such a dispute referred to the Permanent Court of International Justice (PCIJ), the interstate court of the League.
The United Nations (UN) determined their role as to the minority treaties, including the Treaty of Lausanne. It is established that the UN assumed the role of the League of Nations under the treaties, even though it is “not legally the successor” of the League.
The next question relates to the state that could bring the claim. Consistent with Article 44 of the Treaty of Lausanne, the United Kingdom, France, Italy, Japan, Greece, Romania, and the Serb-Croat-Slovene State (its successors Serbia, Croatia, and Slovenia), as parties to the Treaty, could lodge a claim against Turkey in the ICJ, successor of PCIJ in the UN system.
Members of the Security Council, especially the US, due to its stance at the time of the Treaty, would be ideal candidates to challenge the unfair application of the Treaty. This perspective would of course imply a revision of the current Armenian foreign policy and objectives.
The third question concerns the merits of the claim. At first, it would appear that what happened in Turkey in 1915-16 would not be relevant to the Treaty. Yet, a number of possible acts constitute a continuation of the Genocide that could fit within a violation of the Treaty’s minority protection measures: the Armenian women and girls who endured sexual violence, were forced into marriages, and also forced to convert to Islam; Armenians in Turkey that hide their Armenian identity up to this day. Perceived threats and insecurity due to being Armenian have caused them to deny their religion, which is at odds with the protection of freedom of religion under Article 38 of the Treaty; Acts of deportations and banishment of Armenians that occurred after the Treaty; the removal in the summer of 1929 of 30,000 Armenians from Harput, Diyarbekir and Mardin; Discriminatory tax revenues in 1942, etc.
No case was ever filed by a State before the PCIJ to seek enforcement of the minority protections in the Treaty. Any claim under the Treaty would face formidable obstacles due to the elapsed time and to the political consequences.
The perspective of revising the Lausanne Treaty is then quite tempting and Erdogan’s statement laudable, especially in the context of high tensions in the region. The scenario of geopolitical changes is not so unrealistic, and Armenians should anticipate them.
Nevertheless, the case would not be a substitute for a formal claim against Turkey for reparations due to the Genocide. Although never ratified, Sèvres Treaty contains provisions that may have legal effects if Armenians decide to invoke them today.
"The Armenian-Mirror Spectator," February 17, 2018
"The Armenian-Mirror Spectator," February 17, 2018