February 10, 2003
Legal Analysis Prepared for the International Center for Transitional Justice
The Turkish Armenian Reconciliation Commission (TARC), formed July 9, 2001, by Turkish and Armenian civil society representatives, requested that the International Center for Transitional Justice (ICTJ) facilitate an independent legal study on the applicability of the 1948 Genocide Convention to events which occurred during the early twentieth century. On February 4, 2003, ICTJ provided TARC the following analysis on the subject. This analysis was issued to the public by TARC on February 10, 2003.
International law generally prohibits the retroactive application of treaties unless a different intention appears from the treaty or is otherwise established. The Genocide Convention contains no provision mandating its retroactive application. To the contrary, the text of the Convention strongly suggests that it was intended to impose prospective obligations only on the States party to it. Therefore, no legal, financial or territorial claim arising out of the Events could successfully be made against any individual or state under the Convention.
The term genocide, as used in the Convention to describe the international crime of that name, may be applied, however, to many and various events that occurred prior to the entry into force of the Convention. References to genocide as a historical fact are contained in the text of the Convention and its travaux preparatoires.
As it has been developed by the International Criminal Court (whose Statute adopts the Convention's definition of genocide), the crime of genocide has four elements: (i) the perpetrator killed one or more persons; (ii) such person or persons belonged to a particular national, ethnical, racial or religious group; (iii) the perpetrator intended to destroy, in whole or in part, that group, as such; and (iv) the conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.
There are many accounts of the Events, and significant disagreement among them on many issues of fact. Notwithstanding these disagreements, the core facts common to all of the various accounts of the Events we reviewed establish that three of the elements listed above were met: (1) one or more persons were killed; (2) such persons belonged to a particular national, ethnical, racial or religious group; and (3) the conduct took place in the context of a manifest pattern of similar conduct directed against that group. For purposes of assessing whether the Events, viewed collectively, constituted genocide, the only relevant area of disagreement is on whether the Events were perpetrated with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. While this legal memorandum is not intended to definitively resolve particular factual disputes, we believe that the most reasonable conclusion to draw from the various accounts of the Events is that at least some of the perpetrators of the Events knew that the consequence of their actions would be the destruction, in whole or in part, of the Armenians of eastern Anatolia, as such, or acted purposively towards this goal, and, therefore, possessed the requisite genocidal intent. Because the other three elements identified above have been definitively established, the Events, viewed collectively, can thus be said to include all of the elements of the crime of genocide as defined in the Convention, and legal scholars as well as historians, politicians, journalists and other people would be justified in continuing to so describe them.